Judgment :- R. BANUMATHI, J. 1. Being aggrieved by the dismissal of the suit in respect of B-Schedule property and part of A-Schedule property, unsuccessful Plaintiff temple -Arulmigu Maha Mariamman Koil represented by its Hereditary Trustees have filed this appeal. 2. The suit property relates to two items of properties - A-Schedule – S.F.No.439, measuring 2.56 acres in Perianaicken Palayam village, Coimbatore; and B-Schedule – western block and north eastern side in which the Defendant panchayat is said to have put up constructions. Case of Plaintiff is that as per the settlement records, suit property i.e., the lands having an extent of 2.56 acres in S.F.No.439 of Periyanaickenpalayam village belongs to Plaintiff temple. Main temple building and sanctum sanctorum of the temple is situated at the eastern side of the suit properties and the entire western side property is vacant. According to Plaintiff, the temple is 100 years old and is hereditarily managed by P.V.Srinvasan and P.R.Govindarajulus family and before them by their predecessors. Defendant-Town Panchayat have no right over the suit property. Case of Plaintiff is that when the Defendant-Town Panchayat tried to interfere with the Plaintiffs right over the suit property. Plaintiff filed suit in O.S.No.1527/1987 on the file of II Additional District Munsif Court, Coimbatore seeking permanent injunction restraining them from in any way interfering with their right and possession of the suit property and the said suit was decreed on 16.4.1992 granting permanent injunction. Since the Defendant - Panchayat have not preferred any appeal, the said Judgment become final and it is binding on the Defendant. Further case of Plaintiff is that during the pendency of the above suit, Defendant had put up construction in the B schedule property. Since the Defendant - Panchayat is trying to put up further construction in B schedule property, Plaintiff-temple filed the suit for declaration of its right over entire A - Schedule property and for removal of constructions and for possession of B schedule and for permanent injunction restraining the Defendant from in any way interfering with the Plaintiffs right to use the A schedule property and also permanent injunction restraining the Defendant from in any way from putting up any further construction in B schedule property. 3. Defendant – Periyanaickenpalayam Panchayat filed written statement contending that even though decree was passed in O.S.No.1527 of 1987, temple authorities never claimed any right over the property till 8.2.1996. 3. Defendant – Periyanaickenpalayam Panchayat filed written statement contending that even though decree was passed in O.S.No.1527 of 1987, temple authorities never claimed any right over the property till 8.2.1996. According to the Defendant, even in the year 1987, on the north eastern side and western side of S.F.No.439, Defendant Panchayat has constructed buildings of Village Administrative officers Office, Revenue Inspectors Office, Panchayat Office and Panchayat buildings. The shopping complex facing the Mettupalayam main road was also constructed and shops facing Police Station Road are also under the control of the Panchayat Union. Rest of the place is Santhapettai and it is only the Commissioner auctioning the shandy every year. Further case of Defendant Panchayat is that earlier on two occasions there was panchayat between the Plaintiff temple and Defendant Panchayat in the presence of District Collector, Coimbatore in which Government Pleader and M.L.A. have also took part and entered into an agreement of compromise as evidenced from Ex.B.7 – Memo of compromise (28.8.1998). In view of the agreement entered into between the parties, the claim of the Plaintiff based on the decree in O.S.No.1527 of 1987 has come to an end. The case of Defendant Panchayat is that the Defendant Panchayat being in possession of the property excepting 62 cents, the plaintiff temple is not entitled to any relief in the suit. 4. On the above pleadings, trial Court framed four issues as to whether the Plaintiff would be entitled to possession of B Schedule property after removal of construction and whether the Plaintiff would be entitled to permanent injunction in respect of A and B schedule property. In the trial Court, one of the trustees of Plaintiff temple viz., Govindarajulu was examined as P.W.1. Exs.A.1 to A.7 were marked on the plaintiffs side. Executive officer of Defendant Panchayat was examined as D.W.1 and Exs.B.1 to B.12 including the memo of compromise – agreement dated 28.8.1998 were marked on the Defendants side. The Commissioner was appointed and the Commissioner has filed his report and plan Exs.C.1 to C.4. 5. Upon analysis of oral and documentary evidence and with reference to Exs.B.7 to B.12, trial Court held that Survey No.439 – 2.56 Acres was already sub-divided. The Commissioner was appointed and the Commissioner has filed his report and plan Exs.C.1 to C.4. 5. Upon analysis of oral and documentary evidence and with reference to Exs.B.7 to B.12, trial Court held that Survey No.439 – 2.56 Acres was already sub-divided. Pointing out the constructions put up in the suit property viz., Village Administrative Officers Office, Revenue Inspectors Office and Panchayat Office and shopping complex constructed by Defendant Panchayat, trial Court held that the Plaintiff is not entitled to removal of constructions from B schedule property and answered issue No.1 against the Plaintiff – temple. Referring to Ex.C.3 - surveyors plan, wherein 62 cents in S.F.No.439 is registered in the name of Plaintiff temple, trial Court held that the Plaintiff Temple would be entitled to declaration only to the extent of 62 cents in S.F.No.439 and granted declaration and permanent injunction only in respect of portions marked as "S-I" and "S-IV" in Ex.C.3. The trial Court declined the relief of removal of constructions and also refused to grant permanent injunction in respect of B schedule property. 6. Laying emphasis upon Ex.A.1 – Settlement Register, learned counsel for Appellant Plaintiff temple submitted that Ex.A.1 would establish Plaintiff temples right and title in the suit property and trial Court erred in brushing aside Ex.A.1. Learned counsel for Appellant further contended that in the earlier suit - O.S.No.1527 of 1987, permanent injunction was granted against the Defendant Panchayat and the decree in earlier suit would operate as issue estoppel. Having admitted the title of Plaintiff temple cannot go back against their earlier stand. According to Appellant – Plaintiff temple, trial Court adopted erroneous approach in declining the relief to the plaintiff in removal and construction in respect of B schedule property and erred in assuming that the Defendant would have put up construction only with the consent and knowledge of the Appellant. It was further argued that the Defendant Panchayat having no right in the suit property cannot resist the suit filed by the Plaintiff temple, who is lawful owner of S.F.No.439. 7. Reiterating the findings of trial Court and drawing our attention to the documents, learned counsel for Defendant submitted that the Defendant Panchayat has put up construction even in 1987 well within the knowledge of Plaintiff. It was further argued that having entered into compromise (Ex.B.7), Plaintiff temple is estopped from denying the Defendants right. 7. Reiterating the findings of trial Court and drawing our attention to the documents, learned counsel for Defendant submitted that the Defendant Panchayat has put up construction even in 1987 well within the knowledge of Plaintiff. It was further argued that having entered into compromise (Ex.B.7), Plaintiff temple is estopped from denying the Defendants right. It was further argued that in view of Ex.B.7 – compromise agreement, claim of Plaintiff based on decree in O.S.No.1527 of 1987 has come to an end and Plaintiff is not entitled to the equitable relief of declaration and permanent injunction. 8. Upon analysis of evidence and judgment of trial Court and rival contentions, the following points arise for our consideration in this Appeal: (1) In the light of Ex.B.7, whether the Plaintiff is entitled to declaration and permanent injunction in respect of entire extent in S.F.No.439 – 2.56 Acres? (2) When the building and shopping complex were put up by Defendant Panchayat way back in 1987 and subsequently whether the Plaintiff temple is entitled for removal of construction and other reliefs in respect of B Schedule property? (3) Whether the decree of trial Court granting relief of declaration and permanent injunction in respect of limited extent of 62 cents suffers from any infirmity warranting interference?" 9. Points 1 to 3: The Plaintiff temple seeks declaration of title and permanent injunction in respect of entire extent in S.F.No.439 – 2.56 Acres. As per Section 101 of Indian Evidence Act, the burden of proving the fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. As per illustration (b) to Section 101, if A desires a Court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true, A must prove the existence of those facts. 10. When Plaintiff seeks for declaration of title of entire extent in S.F.No.439 the burden lies upon the Plaintiff to establish his title in the suit property. Excepting Ex.A.1 - Extract of Survey and Settlement Register marked in the earlier suit - O.S.No.1527 of 1987, Plaintiff has not produced any other document. In Ex.A.1 – Extract of Survey and Settlement Register, S.No.439 – 2.56 Acres has been registered as pagoda-nfhtpy;. Excepting Ex.A.1 - Extract of Survey and Settlement Register marked in the earlier suit - O.S.No.1527 of 1987, Plaintiff has not produced any other document. In Ex.A.1 – Extract of Survey and Settlement Register, S.No.439 – 2.56 Acres has been registered as pagoda-nfhtpy;. In his evidence, P.W.1 – trustee - Govindarajulu has admitted that other than Ex.A.1 no other document was filed by Plaintiff temple. As rightly contended by the learned counsel for the Defendant Panchayat, in Ex.A.7 there is no mention of name of plaintiffs name as Mariamman temple. Though it was claimed in the plaint that the temple is more than 100 years old, no kist receipt for the land was produced by the Plaintiff. In his evidence, P.W.1 has stated that they have not paid any kist for the suit property. The only document – Ex.A.1 – Extract of Survey and Settlement register by itself is not sufficient to hold that the Plaintiff Temple has established its right in the suit property. 11. To substantiate its plea of title, Plaintiff temple mainly relies upon Ex.A.4 – decree passed in O.S.No.1527 of 1987 (dated 14.4.1992). In the said suit, Plaintiff prayed for permanent injunction restraining the Defendant Panchayat from interfering with its enjoyment and also to restrain the Panchayat from removing fence around the temple. Defendant panchayat has also contested the said suit and the suit was decreed. Much emphasis was laid upon Exs.A.3 and A.4 – judgment and decree in O.S.No.1527 of 1987 and the learned counsel for Plaintiff temple contended that the judgment and decree in O.S.No.1527 of 1987 would show that the Plaintiff temple is the absolute owner of the suit property and the judgment and decree having become final the Defendant is estopped from questioning the right of the Plaintiff temple. 12. By perusal of Exs.A.3 and A.4, we find that the earlier suit – O.S.No.1527 of 1987 was a suit for permanent injunction simpliciter restraining the Defendant Panchayat from interfering with the Plaintiffs enjoyment and worship and from removing the fence. By going through the Judgment – Ex.A.3, it is seen that the question of title was not the subject matter in issue. Only in this suit - O.S.No.192 of 2002, Plaintiff temple has sought for declaration of title and for possession of B schedule property after removal of constructions. By going through the Judgment – Ex.A.3, it is seen that the question of title was not the subject matter in issue. Only in this suit - O.S.No.192 of 2002, Plaintiff temple has sought for declaration of title and for possession of B schedule property after removal of constructions. In his evidence, P.W.1 has admitted that the earlier suit - O.S.No.1527 of 1987 relates to only weekly shandy and not for the relief of declaration. We find that in the earlier suit, no issue was framed with regard to the rights of respective parties and there was no decision in respect of rights of the properties. In our considered view, having sought for declaration of ownership of title, Plaintiff has to establish its title dehors Exs.A.3 and A.4. 13. Regarding enjoyment of Survey No.439 and the constructions of various office buildings put up by Panchayats, panchayat was held in the presence of District Collector, Coimbatore on 3.7.1998 and 28.8.1998 in which the parties have arrived at compromise. Incorporating the terms of compromise the parties have also entered into a written compromise – agreement Ex.B.7. We may usefully refer to the relevant terms in the compromise, which read as under: 1 ) (TAMIL) 2) (TAMIL) //////// 6) (TAMIL) 7) (TAMIL) 14. As pointed out earlier, there was a compromise between the Plaintiff temple and Defendant-Panchayat. After examining the lands for the temple as indicated in Ex.B7 rest of the area to be enjoyed by the Panchayat as indicated in the terms of compromise. In Ex.B7, T.R.Govindarajulu has signed in his capacity as Trustee of the Plaintiff temple. Having entered into a compromise with the Defendant-panchayat and having signed in Ex.B7 compromise that the buildings and other remaining area in S.F.No.439 is to be enjoyed by the Defendant-panchayat, Plaintiff temple is estopped from claiming right in the entire extent of S.F.No.439. 15. Learned counsel for Plaintiff contended that Ex.B7 was not acted upon and no settlement was arrived at between the Plaintiff temple and Defendant-panchayat. In the plaint, there is no mention about Ex.B7 nor there is any averment that even though Ex.B7 was entered, it was not acted upon. In our considered view, in the plaint, there was suppression of Ex.B7 compromise earlier entered between Plaintiff temple and Defendant-panchayat nor any mention about the meeting held on 03.7.1998. 16. In the plaint, there is no mention about Ex.B7 nor there is any averment that even though Ex.B7 was entered, it was not acted upon. In our considered view, in the plaint, there was suppression of Ex.B7 compromise earlier entered between Plaintiff temple and Defendant-panchayat nor any mention about the meeting held on 03.7.1998. 16. Learned counsel for Appellant/Plaintiff contended that terms of Ex.B.7 were not given effect to and therefore there was no necessity for the Plaintiff temple to refer to Ex.B.7 – compromise in the plaint and non-mentioning of Ex.B.7 compromise in the plaint would not in any way affect Plaintiff temples case. We are of the view that Ex.B.7 – compromise memo was entered between Plaintiff temple and the Defendant in the presence of District Collector and other higher officials including trustees of plaintiff temple and Ex.B.7 – memo of compromise is a vital piece of evidence, which ought to have been referred to in the plaint. 17. We have gone through Ex.C3 and the report filed by the advocate-commissioner. Around the temple, fencing has been put up and Plaintiff temple is in possession of the portion earmarked for the temple indicating that terms of Ex.B7 was acted upon to some extent. Whoever comes to the Court claiming equity must come to the Court with clean hands. In our considered view, in the plaint, Plaintiff temple ought to have disclosed the factum of entering into a compromise with the Defendant-Panchayat under Ex.B7 in the presence of the District Collector, Coimbatore and other officials and the subsequent developments. But that was not done. 18. In so far as possession, Plaintiff temple claims possession of entire extent of property in S.F.No.439 – 2.56 acres. In his evidence, PW1 has stated that Plaintiff temple has not paid any kist to the suit property. The fact that Plaintiff temple has prayed for the relief of removal of construction and recovery of possession of B Schedule property by itself clearly shows that Plaintiff temple is out of possession of B schedule property. 19. It is abundantly clear from the oral and documentary evidence that Defendant-panchayat has put up construction way back in 1987. As is seen from Ex.B8 [19.03.1986], the Deputy Director of Town and Country Planning has approved Rs.20,00,000/- for the construction of shopping complex and sent the proposal to the Director of Town and Country Planning along with his recommendation. 19. It is abundantly clear from the oral and documentary evidence that Defendant-panchayat has put up construction way back in 1987. As is seen from Ex.B8 [19.03.1986], the Deputy Director of Town and Country Planning has approved Rs.20,00,000/- for the construction of shopping complex and sent the proposal to the Director of Town and Country Planning along with his recommendation. As is seen from the letter of the Director of Town and Country Planning in Roc.No.5403/85-UP2 dated 10.02.1986 (Ex.B.9), 41 Municipalities and Panchayats were selected for implementation of Urban Development Programme in the VII Five Year Plan and financial assistance was made available for the ground floor construction and other projects. In his evidence, DW1 has stated that they have also borrowed amount from IDSMT for completion of the shopping complex. As per the Proceedings of the Town and Country Planning, construction of shopping complex/ground floor was put up in the B schedule property. 20. Case of Defendant Panchayat is strengthened by overwhelming evidence. From Ex.B12 – A Register, it is seen that S.F.No.439 has been sub-divided as S.F.Nos.439/1, 439/2 and 439/3 showing existence of "Santhaipettai official building" etc. as is seen from the following:- (TAMIL) (TABLE ) Defendant-Panchayat had put up construction in 1987 even during the pendency of suit in O.S.No. 1527/1987. In his evidence, P.W.1 has admitted that the Offices of Revenue Inspector, Village Administrative Officer, Revenue Divisional Officer are located in S.F.No.439. That apart, as indicated in Exs.C1 to C3, ground floor shopping complex was put up way back in 1987 on the eastern side of Mettupalayam road. Prior to the filing of the suit, Defendant had only put up the first floor. The shopping complex shown in Ex.C2 constructed in an extent of 0.80 cents is indicated as "S-V". In his evidence, D.W.1 has clearly stated that Panchayat hasbeen collecting the rent from the shopping complex. Adjacent to the shopping complex, there is also 24 hours hospital. When the Government buildings and shopping complex were constructed long back and subdivision was also effected, Defendant-Panchayat having acquiesced the same, cannot now seek for removal of construction. It is also seen from Ex.C3 that S.F.Nos.438, 439 and 440 were sub-divided much prior to filing of suit with various classifications. When the Government buildings and shopping complex were constructed long back and subdivision was also effected, Defendant-Panchayat having acquiesced the same, cannot now seek for removal of construction. It is also seen from Ex.C3 that S.F.Nos.438, 439 and 440 were sub-divided much prior to filing of suit with various classifications. In respect of the portion marked as "S-I" – 0.60 cents in Ex.C2, the advocate-commissioner had noticed that the property shown in "S-I" and coloured in green colour in the plan is the Plaintiff temple -Arulmigu Maha Mariamman, facing north. At the entrance, advocate-commissioner found a grill gate. Advocate-commissioner had also found lamp pillar (Kurinchi) in front of the temple. The temple is facing north with two rooms in front and an Artha Mandapam and tiled with Kopuram and Kalasam. Adjacent to the temple, advocate-commissioner had found another temple for Durgai Amman with separate gate. The portion is marked as "S-IV" – 0.62 cents is Santhaipettai. In his report, advocate-commissioner had noticed that "S-IV" is the vacant space shown in pink colour in Ex.C2. In the vacant space, advocate-commissioner had found a dilapidated shed tiled with roof and some other shops like mutton and chicken shops were also found on the southern side of the vacant space. On the western and southern boundary of the vacant space compounded with wall and on the north western corner, advocate-commissioner found one dilapidated building. In his report, advocate-commissioner has further stated that in the portion marked "S-IV", he found another temple for Vinayagar with grill fence measuring 8 x 8 feet. Advocate-commissioner had also found from "S-I" portion there is a small grill gate to enter into Vinayagar temple and Santhai. The said Vinayagar temple is facing east and on the south of this temple, wastage were dumped. 21. Pointing out the portions marked as "S-I" shown in Green colour and "S-IV" shown in Pink colour are alone in possession and enjoyment of the Plaintiff temple, the learned trial Judge granted limited declaration and permanent injunction only in respect of the portions marked as "S-I" and "S-IV". 21. Pointing out the portions marked as "S-I" shown in Green colour and "S-IV" shown in Pink colour are alone in possession and enjoyment of the Plaintiff temple, the learned trial Judge granted limited declaration and permanent injunction only in respect of the portions marked as "S-I" and "S-IV". In so far as the portions marked as "S-II" , "S-III" and "S-V", other office buildings and shopping complex are constructed, the trial Court held that Defendant-panchayat is in possession and enjoyment by putting up construction and that there are office buildings, rightly declined the relief of declaration and injunction and Points 1 to 3 are answered accordingly in favour of Defendant Panchayat. Upon appraisal of evidence, in our considered view, the findings of trial Court are based upon evidence and materials on record warranting no interference. 22. In the result, the judgment of the trial Court in O.S.No.192/2002 dated 07.11.2003 on the file of Additional District Judge [Fast Track Court No.I], Coimbatore is confirmed and the Appeal is dismissed. In the circumstances of the case, there is no order as to costs in this Appeal.