JUDGMENT
M. Chockalingam, J.
1. This second appeal is preferred from the judgment and decree made in A.S.No. 24 of 1989, dated 23.8.1989 on the file of the Sub Court, Chengalpattu reversing the judgment and decree of the learned District Munsif, Chengalpattu made in O.S.No. 235 of 1985, dated 27.1.1989.
2. The respondent herein filed a suit for permanent injunction to restrain the defendant from interfering with her peaceful possession and enjoyment of the suit property with the following averments. The respondent/plaintiff was a tenant under the trustees of Sri Vembadi Vinayagar Temple and Vembadi Animal Koil Temple and other temples in respect of the plot No. 129, Muttukkadu Village, Chengalpattu Taluk, paying monthly Rs. 10 as ground rent, and has paid the monthly rent to the trustees regularly without default and obtained receipts of the said payments. The plots were allotted to nearly 50 tenants to construct the houses. All the members have formed an association and the present plaintiff’s husband was the Assistant Secretary of the said association. The respondent/plaintiff has constructed her superstructure and was living there for more than two years. The respondent was paying the tax for the house as per the receipt filed in the plaint, and thus she was in possession and enjoyment of the suit property in her capacity as tenant of the defendant in respect of the plaint schedule property without any disturbance. The defendant (Thakkar) was the new trustee for the temple and was threatening the plaintiff and other tenants to make forcible possession of the suit property and other properties without due process of law. He was going to demolish the plaintiff’s house by force. The defendant made an attempt on 17.7.1985 to take forcible possession by dismantling her house and the said attempt was thwarted. The plaintiff had no other house except the suit house, and under such circumstances there arose a necessity to file a suit for permanent injunction as asked for.
3. The defendant contested the suit alleging that one Lakshmanan was appointed as a trustee for the defendant temple for a period of 3 years; that the period of tenure of the said Lakshmanan as trustee was already over, but he was evading to handover charges to the Executive Officer in spite of repeated demands and notices by the Executive Officer and H.R. & C.E. Board; that the said Lakshmanan was charged with malpractices and misappropriation during his administration of the temple and a separate action was being taken against him by the H.R. & C.E. Board; that in order to look after the affairs of the defendant temple and the properties, Thiru M. Ramakrishnan, the Executive Officer, Alavandar Charities and Arulmigu Nithyakalyanasamy Temple, Thiruvidanthai was appointed as fit person by an order of the Board dated 19.7.1984; that the fit person assumed charge on 23.7.1984 since the previous trustee Lakshmanan failed to handover the charges and the records of the temple; that from the date of appointment as fit person, the Executive Officer was kiijubg after the affairs of the temple and he was managing the temple properties; that it was understood that the previous trustee Lakshmanan in collusion with the plaintiff and some of his partisans created some alleged lease deeds in their favour for a longer period; that the alleged lease of the properties was for more than one year; that the alleged lease in favour of the plaintiff in respect of the suit property was void in law; that it was not a valid lease and was not binding on the defendant temple; that no sanction was accorded by the H.R. & C.E. Board for the alleged lease in favour of the plaintiff in respect of the suit property; that such lease was hit by Section 34 of H.R. & C.E. Act and the plaintiff’s possession was that of a trespasser; that the alleged rental receipts were not true, valid and binding on the defendant; that no amount has been received from the plaintiff by the temple as rent; that the said rental receipts should have been created and manipulated by the plaintiff in collusion with the previous trustee Mr. Lakshmanan; that after the assumption of the office as fit person for the defendant temple, the fit person issued a pamphlet dated 11.10.1984 calling upon the encroachers in respect of the land bearing S.No. 82/2 10-95 acres in Muttukadu village to vacate voluntarily; that the fit person made wide publicity including by publishing the abovesaid call in one issue of Daily Thanthi on 16.10.1984 and also by beat of Tom Tom in the suit village; that State of Tamilnadu wanted to construct a tourist complex for Tamilnadu Tourism Development Corporation in S.No. 82/2 10.95 acres in Muttukkadu Village at a cost of more than Rs. 3.00 crores; that the temple had nothing to do with it and the policy was taken by the State of Tamilnadu; that in pursuance of the abovesaid proposal for the construction of the same, the Government wanted” the H.R. & C.E. Board to handover the possession of the entire extent of 10.95 acres in the said survey number after removing the encroachment; that in pursuance of the direction given by the Government, the H.R. & C.E. Board in turn directed the fit person to take action for the removal of the encroachment; that the fit person and the H.R. & C.E. Board sought the help of the Revenue Officials through D.R.O. and the police through Superintendent of Police for the removal of the encroachment of other persons in S.No. 82/2; that on 3.6.1985 except the plaintiff, other encroachers voluntarily surrendered possession and encroachments were removed; that since the plaintiff had obtained interim injunction, no action was taken against her; that the plaintiff has put up only a flimsy and katcha temporary superstructure on the suit property on the eve of the filing of the suit; that the plaintiff has filed the above suit in order to harass and cause loss to the temple and to delay the proposed construction of the tourism complex; that she has no right or title in or over the suit property and there is no relationship of landlord and tenant between the defendant and the plaintiff; that the averments in the plaint that she was a tenant under the trustee of the temple in respect of the plot No. 129 on a monthly ground rent of Rs. 10; that the plaintiff had paid the monthly rent to the trustee regularly without default and obtained receipts for the payment; that the plots were allotted to nearly 50 tenants and they were allowed to construct the houses; that all the members have formed an association and plaintiffs’ husband is the Assistant Secretary to the said Association; that the plaintiff has construed the superstructure and she is living there for more than two years; that she was paying the house tax; that she was in possession of the suit property as the tenant of the defendant; that the house was built with bricks and cement and the roof has been put up with asbestos; that the Thakkar was attempting to take forcible possession of the suit property; that an attempt was made on 17.7.1985 to take forcible possession by dismantling the plaintiff’s house; that she has no other house except the suit house and that the defendant is very powerful in men and money were all false; that there was no cause of action for the suit and the suit has not to be dismissed.
4. The trial Court on the above pleadings framed the necessary issues, tried the suit and dismissed the same with costs. Aggrieved over the same, the plaintiff preferred an appeal before the Sub Court in A.S.No. 24 of 1989 wherein the learned Subordinate Judge reversed the judgment of the trial Court and decreed the suit, wherefrom this second appeal has arisen. At the time of admission, the following substantial questions of law were formulated.
(1) Whether the lower appellate Court is right in coming to the conclusion on the basis of the documents Exs.A-10 and A-11 to substantiate the legal possession of the respondent?
(2) Whether the lower appellate Court applied the principle laid down under Section 34 of H.R. & C.E. Act?
(3) Whether the Court below ought to have appreciated the judgment rendered in Alamelu Achi v. Ponniah Mudaliar and ought to have dismissed the appeal in limine?
5. The respondent herein filed a suit seeking the relief of permanent injunction restraining the defendant/appellant and temple from interfering with her peaceful possession and enjoyment of the suit property of the vacant site on a monthly rental of Rs. 10 under the temple. The said suit was contested by the appellant/defendant stating that the respondent/plaintiff was neither a tenant nor there existed any lessor and lessee relationship between them but the plaintiff was a trespasser and hence injunction should not be granted in her favour. Agreeing with the defendant, the trial Court dismissed the suit. On appeal the lower appellate Court agreed with the plaintiff and decreed the suit, which has culminated in this second appeal by the aggrieved defendant.
6. The learned Counsel appearing for the appellant inter alia would submit that the lower appellate Court was in error in reversing the well considered judgment of the trial Court; that the lower appellate Court has completely misunderstood the facts in approaching the legal question involved; that it is pertinent to note that both the Courts have concurrently held that there is no relationship of lessor and lessee in respect of the suit land between the appellant and the respondent; that the first appellate Court should have followed the judgment of this Court reported in Alamelu Achi v. Ponniah Mudaliar , wherein it has been held that the Court should not encourage the trespassers and grant injunction against the true owner; that the first appellate Court should have seen the principle laid down under Section 34 of the H.R. & C.E. Act, wherein it has been clearly found that the commissioner has got no powers to extend the lease of the land beyond five years; that the lower appellate Court should not have granted injunction in favour of the respondent herein who was a trespasser and hence the judgment of the first appellate Court has got to be set aside and the judgment of the trial Court has got to be restored.
7. Disputing all the contentions put forth by the appellant’s side, the learned Counsel for the respondent would submit that the trial Court dismissed the suit without proper appreciation and scrutiny of the evidence adduced; that the respondent herein took the possession of the property by entering into a lease agreement with the trustee of the temple in the year 1982 and has paid rental also in respect of which receipts have been passed over to her; that this would clearly indicate that she was a lessee in respect of the land and not a trespasser; that the respondent has also raised constructions in the vacant site under lease which fact was known to the defendant, but they have not raised any objection whatsoever; that the possession of the respondent was lawful and it cannot be termed as a trespass and hence the lawful possession of the respondent could not be interfered with by the defendant except by due process of law and hence the lower appellate Court was perfectly correct in setting aside the judgment of the trial Court and granting the relief as asked for.
8. The case of the respondent who sought the relief of permanent injunction to restrain the appellant/defendant from interfering with her possession and enjoyment of the suit property was that she was a tenant under the trustee of the appellant temple in respect of the plaint schedule property by paying monthly Rs. 10 as ground rent and that she has paid the monthly rental to the trustees regularly and her possession as lessee has to be protected from the unlawful threat of forcible eviction by the appellant temple. The defence that was put forth by the appellant temple was that the previous trustee by name Lakshmanan was directed to handover the charges, after his tenure was over, to the new Executive Officer, but despite the same he was unlawfully holding the post and one Ramakrishnan, Executive Officer of Arulmigu Nithyakalyanasamy Temple, Thiruvidanthai appointed as a fit person by an order of the H.R. & C.E. Board took charge of the same; that in collusion with the previous trustee, the plaintiff has created some documents and she has come forward with the said suit; that she was a trespasser and hence an injunction against the true owner should not be granted.
9. Concededly the suit property belonged to the appellant temple. The respondent has sought the relief of permanent injunction specifically pleading that she was a tenant under the trustees of the appellant temple. Hence unless and until the said plea of tenancy is proved by acceptable evidence, the plaintiff could not maintain the suit for permanent injunction. As the outset it has to be stated that nowhere in the plaint she has stated when the alleged tenancy commenced or with whom she entered into the tenancy agreement. It is contented on the respondent’s side that she entered into a lease agreement with Lakshmanan, one of the trustees of the appellant temple. It was specifically averred in the written statement that the said Lakshmanan who was appointed as a trustee in 1981 was removed from the trusteeship and despite the same he did not handover the management to the successor in office and action was taken against him in that regard. It has to be pointed out that the plaintiff has not stated the date of tenancy or the name of the trustee with whom she entered into a tenancy agreement. No written agreement of tenancy is filed. Except the oral assertion and interested testimony of P.W.1, no material is available to hold that there was any tenancy agreement in favour of the appellant temple. Under the said circumstances, the non examination of the said Lakshmanan would, no doubt, cast a doubt on the alleged tenancy agreement. According to the respondent/plaintiff, her husband was the Assistant Secretary of the Association consisting of 50 tenants in whose favour allotments were made and she has constructed the superstructure and was residing there for more than two years. But the respondent/plaintiff has not pleaded with whose permission she put up the said construction.
10. It is pertinent to point out that the instant suit was filed in July, 1985. It is contented by the defendant/appellant’s side that the said Lakshmanan who was appointed on 27.2.1981 was subsequently removed and another fit person was appointed in his place. This would be indicative of the fact that the plaintiff without prior permission of the temple authorities has raised the construction. It is not the case of the respondent/plaintiff that the lease was for any particular period. As rightly pointed out by the learned Counsel for the appellant temple, without the prior permission of the Commissioner of H.R. & C.E., a lease for more than five years cannot be granted in favour of a tenant. The learned Counsel for the respondent would submit that for raising the superstructure the respondent obtained permission from the former trustee and the same is marked as Ex.A-10. Though the suit was filed in July, 1985, the said document was filed in Court only on 28.7.1988 and the trial Court in view of the same, has found that it was the document subsequently created for the purpose of the case, and apart from that the said former trustee Lakshmanan was not competent to give such a permission and has rightly rejected the same. Equally so was the permission granted by him to get the electricity service connection. The learned Counsel for the respondent would submit that in order to substantiate the lease, Exs.A-1 to A-3 and A-5 to A-6 were produced by the respondent in the trial Court, and the said documents would clearly indicate that the respondent was a lessee in respect of the vacant site. The Court is of the view that no evidentiary value can be attached to those documents, in view of the fact that those documents, were issued by the former trustee Lakshmanan who despite the removal and direction to hand over, has not handed over the temple properties and its management and was not competent to issue such receipts. All the documents relied on by the respondent in the trial Court would clearly indicate that those documents were the outcome of the collusion between the plaintiff and former trustee Lakshmanan with a view to create encumbrance over the temple property. Thus the respondent/plaintiff has not proved either the alleged tenancy or has not shown herself to be in lawful possession of the property and without any hesitation her possession can be termed as illegal. Apart from that, in order to secure the relief of injunction against the defendant, the plaintiff has produced the abovesaid documents which were created in connivance with the former trustee and after the institution of the suit.
11. In the decision reported in Alagi Alamelu Achi v. Ponniah Mudaliar , it has been held thus:
A person in wrongful possession of property is not entitled to be protected against the lawful owner by an order of injunction. When once a Court finds that a plaintiff’s possession of property is wrongful such possession cannot be protected by assistance of Court. The fact that if the lawful owner were to institute a suit, he might possibly fail on the ground that he was not in possession within 12 years of suit, can make no difference and cannot be a justification for the issue of an injunction maintaining the wrongful possession of the plaintiff.
The Court is of the view that the above decision squarely applies to the present facts of the case. Following the decision cited supra, the Court without any hesitation has to hold that the plaintiff who is in wrongful possession of the property is not entitled to be protected against the lawful owner viz., the appellant herein by an order of injunction. For the reasons stated and discussions made above, the Court is of the considered view that the judgment of the lower appellate Court is not sustainable and the same is liable to be set aside.
12. In the result, this second appeals is allowed with costs throughout. The judgment and decree of the lower appellate Court are set aside. The judgment and decree of the trial Court are restored. Suit is dismissed.