JUDGEMENT
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(1.)This Appeal Suit is filed by the partly unsuccessful plaintiff against the Judgment and Decree dtd. 21/8/2007, in O.S.No.872 of 2006 in and
by which, the suit is filed by the plaintiff/Temple directing the defendant to
quit and deliver vacant possession of the suit schedule property and for
permanent and mandatory injunctions, was dismissed in respect of delivery
of vacant possession and future damages, while decreeing the suit for
permanent injunction and for mandatory injunction.
B.The case of the plaintiffs:
(2.)The plaintiff is one of the ancient Temples having several properties in and around of Purasawalkam, Chennai. The property in
Survey No.3155 is owned by the plaintiff/Temple. The property bearing
Door No.71, Kuttiappa Giramani, 2
nd Street, Kilpauk Chennai-600 010,
measuring an extent of 1 ground 1800 Sq.ft., which is in the said Survey
No.3155, belongs to the plaintiff/Temple. While so, one Arumuga Naicker
and Others were let out some of the other properties of the Temple for
performing 'Bolichetty' during festival times. However, when the said
Arumuga Naicker and Others had stopped performing 'Bolichetty' when
the plaintiff/Temple sought to re-enter the suit property, then the said
Arumuga Naicker and Others filed a suit in O.S.No.8268 of 1982, on the
file of the XII-Assistant Court, City Civil Court, Chennai and by a
Judgment dtd. 19/2/1987, while granting a decree in favour of the said
Arumuga Naicker and Others in respect of other Survey numbers, the suit
was dismissed in respect of Survey No.3155, that is, in respect of the suit
property. While so the defendant is in occupation of the suit property, and
she did not attorn the tenancy in favour of the plaintiff/Temple and
regularise her occupation, therefore, she is neither a tenant nor a
permissive occupier and is a rank Trespasser.
2.1. On 1/11/2006, when the Collection Clerk of the plaintiff/Temple visited the suit premises, he found that the defendant herein is trying to put up a new construction in the suit properties and therefore, a telegraphic notice was issued on 1/11/2006. As a matter of fact, on 1/11/2001, the Fair Rent Fixation Committee constituted by the Hindu Religious and Charitable Endowments (HR and CE) Department, fixed a fair rent at the rate of Rs.2.56 per sq.ft., for the area in which the suit premises situate and therefore, the plaintiff/Temple is entitled for a sum of Rs.10,752.00 per month and the defendant was also liable to pay the said sum of Rs.358.00 per day for the damages, use and occupation of the suit premises and hence, the suit.
C.The Case of the defendants:
(3.)The plaintiff/Temple has not filed any title documents to prove their title. Originally the suit property belonged to one Sivalingam's
forefathers from time immemorial. It was given to them absolutely by
virtue of their rendering Bolichetty services to Sri Gangdhara Easwara
Temple, Puraswalkam which is attached to Arulmigu Pathala Ponniammal
Temple and its other connected Temples. After the death of one
Narayanasamy Naicker, who is the paternal grandfather of Sivalingam
Naicker, the father of Sivalingam Naicker, namely, Subramania Naicker
and his brother Arumuga Naicker enjoyed the suit property. Upon the
death of the said Subramania Naicker, the said Sivalingam and his
paternal uncle Arumuga Naicker have enjoyed the suit property with the
larger extent totalling to 3 1/2 grounds out of which the said Sivalingam is
entitled to 1/2 share in the entire property and being 1 grounds. The said
Sivalingam sold one ground to one Durgabai, vide a registered sale deed
dtd. 27/9/1963. A rectification deed was also executed on 11/12/1963 by
the said Sivalingam, to rectify the error in Survey No.3155, which was
wrongly mentioned as Survey No.55/1. The said Durgabai sold the suit
property vide registered Sale Deed dtd. 17/10/1967 in favour of one
Rajammal. The said Rajammal is the mother of the defendant. The said
Rajammal executed a Will dtd. 25/2/1975, bequeathing the suit property
in favour of the defendant. The defendant being the absolute owner of the
property is in possession. She had also constructed a superstructure in the
suit property and she is not a trespasser.
D. The issues and the Trial: