Judgment 1. The judgment and decree, dated 12.2.1993 and made in the appeal in A.S.No.57 of 1992 on the file of the learned Principal Subordinate Judge, Coimbatore, confirming the judgment and decree, dated 10.9.1991 and made in O.S.No.894 of 1986 on the file of the learned Additional District Munsif, Coimbatore are under challenge in this memorandum of second appeal. 2. The appellant herein is the first defendant, viz., the Commissioner, Coimbatore Municipal Corporation, whereas the respondents 1 and 2 herein are the plaintiff and the second defendant in the suit respectively. 3. The character of the parties to the second appeal may hereinafter be referred to as such in the original suit wherever the context so require. 4. The plaintiff, viz., M/s. Students Welfare Association represented by its General Secretary, Thiru. T.S. Hyder Ali, has filed the above suit in O.S.No.894 of 1986 seeking the following reliefs:- a. Permanent injunction restraining the defendants or their men or agents from interfering with the plaintiff's peaceful possession and enjoyment of the suit property and for eviction and also for costs. 5. The suit was contested by the defendants by filing their respective written statements. 6. On appreciation of both oral and documentary evidences, the learned trial Judge had proceeded to grant the relief of injunction on 10.9.1991 as prayed for by the plaintiff. 7. On appeal, the learned first appellate Judge had confirmed the judgment of the trial Court and in consequence thereof, the appeal filed by the first defendant was dismissed on 12.2.1993. 8. Having been aggrieved by the judgment and decree of the first appellate court, the first defendant being the Coimbatore Municipal Corporation represented by its Commissioner has preferred the present second appeal. 9. The second appeal came to be admitted on the following substantial questions of law:- a. Whether the courts below are correct in construing Ex.A.5 which is on the face of it is a license or a lease? b. Whether the Courts below are correct in holding that under Section 258(4) and 441, the Corporation cannot remove the encroachment of the road, when there are no such provision as Section 258(4) in the Corporation Act? 10. Heard Mr.R. Sivakumar, learned Counsel appearing for the appellant and Mr. B. Ramamoorthy, learned counsel appearing for the first respondent. Despite service of notice, the second respondent has not chosen to appear. 11. 10. Heard Mr.R. Sivakumar, learned Counsel appearing for the appellant and Mr. B. Ramamoorthy, learned counsel appearing for the first respondent. Despite service of notice, the second respondent has not chosen to appear. 11. Before we go into the merits of the case, it is imperative on the part of this Court to highlight the excerpts of the facts of the case. 12. Plaintiff's Association is a registered one in accordance with the registration of Societies Act. Their object is to serve for the welfare of the poor students of the locality and also to spread education and to grant medical aids to the persons irrespective of caste, colour and creed and as such it was started functioning at No.19/15 Durghalala Street, Fort, Coimbatore-1. 13. According to the plaintiff, the suit property is a poromboke land, which is under the control of the first defendant Corporation measuring 160 sq.ft.(20 x 8 feet). 14. The plaintiff's association gave a representation requesting the first defendant to lease out the suit property for its own use and occupation for the purpose of putting up of a public library and a nursery school attached to the plaintiff's association. 15. The first defendant had also considered the said representation favourably and leased out the suit property to the plaintiff's association for one year initially fixing the rent at Rs.30/-per month vide its order in Na.Ka.No.94769/83/A 42, dated 20.3.1984 and directed the plaintiff's association to pay the total sum of Rs.360/- towards rent for the whole year in advance. 16. Accordingly, the plaintiff's association had also paid the sum of Rs.360/- towards the annual rent in advance and the first defendant had also issued a receipt on 27.3.1984 bearing No.28811. Thereafter, the first defendant had been renewing the lease in favour of the plaintiff from time to time. The plaintiff had also been paying the rent without any default. When the lease was due to expire on 8.3.1987, the first defendant Municipal Corporation had issued a notice on 12.5.1986 bearing S.No.54/86 H.7 under Section 258 (4) and 441 of the Municipal Corporation Act directing the plaintiff association to remove the encroachment and hand over the possession of the suit property within 24 hours from the time of the receipt of the notice. However, the above said notice was received by the plaintiff on 13.5.1986 around 4.00 p.m. 17. However, the above said notice was received by the plaintiff on 13.5.1986 around 4.00 p.m. 17. The above said provisions of Section 258(4) and 441 of the Coimbatore Municipal Corporation Act are applicable only in cases where a person has illegally occupied a place belonging to the municipality and is causing hindrance and injury to the public health. 18. In this case, the plaintiff has been occupying the suit property legally under the grant of a lease, which was due to expire on 8.3.1987. Therefore, the plaintiff's association was constrained to file the above suit seeking the relief of permanent injunction as against the first defendant. 19. The first defendant Coimbatore Municipal Corporation has contended that the plaintiff is only a licensee and not a lessee. 20. In fact, the plaintiff was permitted to occupy the suit property for the period reckoning from 9.3.1984 to 8.3.1985. After this period, i.e., after 8.3.1985 the possession of the plaintiff in respect of the suit property can be treated as a wrongful one and as per the conditions of the licence it could be revoked at any point of time, for which the first defendant is having every right. 21. Initially, at the time of granting the licence, the plaintiff was permitted to put up a thatched pandal but violating this condition and without obtaining any permission from the Corporation, they had put up a shed. 22. First defendant has also contended that since the period of licence was expired on 8.3.1987, the suit itself had become infructuous and therefore, he has urged to dismiss the suit. 23. Since the possession of the plaintiff is unlawful, first defendant has claimed damages for use and occupation after the expiry of the period of licence. 24. It is the case of the second defendant that the suit lane is absolutely belongs to Coimbatore City Municipal Corporation, who is the first defendant herein. 25. He has also contended that in Coimbatore City, these types of lanes are there to dump the night soil, debris and other waste materials as admitted by the plaintiff. 26. In fact due to various acts committed by various persons, there was a lot of insecurity and hence, after repeated request from the inhabitants of that area the first defendant municipal corporation had taken effective steps to remove the encroachments and nuisance. 27. 26. In fact due to various acts committed by various persons, there was a lot of insecurity and hence, after repeated request from the inhabitants of that area the first defendant municipal corporation had taken effective steps to remove the encroachments and nuisance. 27. Since the plaintiff is a trespasser, he has no semblance of any right over the suit lane. Virtually, his mother had sent a telegram to the first defendant municipal corporation to prevent such actions. His mother has got right of enjoyment over the suit lane with free ingress and egress. His main contention is that since the plaintiff is a trespasser, he cannot maintain the suit for injunction as against the lawful owner and since the suit has been filed for bare injunction without seeking any relief of declaration, it is not at all maintainable. 28. As afore stated, in the opening paragraphs, initially the trial court had granted the decree of permanent injunction, which was confirmed by the first appellate court. 29. In the alternative, this Court can say that both the trial court as well as the first appellate court have given concurrent finding. 30. It is trite law that the High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous. 31. As observed by the Apex Court in K.G.Shivalingappa vs. G.S. Eswarappa ( AIR 2004 SC 4130 ), in regular second appeal the High Court can interfere with the concurrent findings of the Courts below only on the substantial question of law framed at the time of admission of the appeal or reframed or substituted later on at the time of arguments. 32. Though it is true that the concurrent findings of fact recorded by the lower appellate court as well as the trial court cannot be interfered with, in second appeal, now the position is well settled that when the judgment of the final court of fact is based on mis-representation of documentary evidence or on consideration of inadmissible evidence ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment of the final court of fact. 33. 33. On coming to the instant case on hand, the first substantial question of law is relating to Ex.A5 raising the question as to whether it is on the face, is a licence or a lease. 34. Ex.A5 is the order, dated 31.3.1984 passed by the Commissioner of Coimbatore Municipal Corporation, vide Mu.Mu.No.94769/83/H7 A42. The vernacular language of its contents may be extracted in the same form as under:- “TAMIL” 35. In this order, it appears that the plaintiff was granted licence to utilise the above suit property measuring 20 x 8 feet by putting up a temporary pandal for the educational purpose on a monthly licence fee of Rs.30 for the period from 9.3.1984 to 8.3.1985. 36. As adumbrated supra, from the contents of Ex.A5 it is understood that licence was granted in respect of the suit property to the plaintiff's association. But in Ex.A22, the plaintiff was put under notice that he shall pay one year rent of Rs.360/-within seven days from the date of receipt of the letter, dated 20.3.1984. 37. On appreciation of these two documentary evidences, this court finds that the order of granting licence to the plaintiff under Ex.A5 at the first instance, dated 31.3.1984 in Mu.Mu.No.94769/83/H7 A42 alone will prevail over Ex.A22. 38. In Ex.A5, it is clearly stated that it is a licence to utilise the suit lane for the period from 9.3.1984 to 8.3.1985 fixing the licence fee at Rs.30/-p.m. and therefore, it cannot be construed that the grant was only lease and not licence. 39. Now the notice, dated 12.5.1986 under Ex.A18 alone appears to have been given cause of action for the plaintiff's association to file the suit for permanent injunction as against the defendants. This notice seems to be given under Sections 258(4) and 441 of the Coimbatore Municipal Corporation Act. 40. In fact under the provisions of Section 258 of Coimbatore Municipal Corporation Act, 1981 no such sub-section much less sub section 4 is available. Section 258 en compasses only two sub-sections, viz., sub-section 1 and 2. 41. Section 258 contemplates 'Removal of Encroachments'. 40. In fact under the provisions of Section 258 of Coimbatore Municipal Corporation Act, 1981 no such sub-section much less sub section 4 is available. Section 258 en compasses only two sub-sections, viz., sub-section 1 and 2. 41. Section 258 contemplates 'Removal of Encroachments'. Sub-section 1 envisages that the Commissioner may by notice require the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction (other than a door, gate, bar or ground-floor window) situated against or in front of such premises and in or over any street or any public place the control of which is vested in the corporation. 42. Section 441 of Coimbatore Municipality Corporation Act deals with the 'General provisions regarding penalties specified in the Schedules.' 43. The mere quoting of section in the notice wrongly, would not take away the right of Coimbatore Municipal Corporation to initiate action as against the plaintiff. 44. From the reading of Ex.A5, it is crystallised that it is only a licence and not a lease. 45. On coming to the second substantial question of law, while advancing his arguments Mr. B. Ramamoorthy, learned counsel appearing for the first defendant has brought to the notice of this Court that the plaintiff's association was dissolved on 18.12.2007 as per the communication of the Sub Registrar (Chit & Society), dated 1.7.2014. 46. The communication dated 1.7.2014 in Na.Ka.No.8849/A2/2014, seems to have been issued to the Assistant Commissioner, Central Zone, Coimbatore Municipality by the Sub Registrar. 47. It is clear that the name of the plaintiff's association was removed from the register of Societies after giving notices and it was also duly published in the Government Gazette No.47, dated 5.12.2007 Part-VI. 48. It is also revealed that the plaintiff's welfare association was registered on 16.6.1979 and renewed upto the year 1981-1982. Since the welfare association was not renewed continuously for more than three years, as per Sub-section 4 of Section 44 of Societies Registration Act, 1975, the name of the plaintiff's welfare association was removed from the Register of Societies and it was also duly published in the Government Gazette and hence, the plaintiff's welfare association has lost its sanctity and become defunct. 49. 49. On the other hand, the learned counsel appearing for the first respondent has adverted to that even as on today, the plaintiff's welfare association is in existence and still it has been continuing its function and thereby it could not be heard to say that the plaintiff's welfare association is dissolved. 50. It is significant to note here that since the suit property is classified as poromboke land, it should be under the control of Coimbatore Municipal Corporation as observed by the Hon'ble Supreme Court of India in Collector District Gwalior and another vs. Chine Exhibitors Private Limited and another ( (2012) 4 SCC 441 ). 51. While penning down the judgment on behalf of the Division Bench, Hon'ble Mr. Justice Dipak Misra has observed as under:- “8. It is apt to note that on behalf of the State, a stand was vigorously canvassed that when there has been no transfer of the land by the State in favour of GDA, the grant of lease by GDA in favour of the first respondent Company is ab initio void and, therefore, no right flows in favour of the said respondent to retain the possession. The learned Judges repelled the said stand on the base that when GDA had granted lease in the auction that was conducted with the knowledge of the State, it was estopped from raising the plea that the land had not been transferred to GDA. Expressing this view, the appeal was dismissed in the ultimate eventuality.” “35. We have referred to these aspects singularly to highlight that unless affirmative steps are taken by the State Government by issuing a notification changing the character of the land transferring it in favour of any authority, corporation or municipality, it maintains its own character i.e., nazul land. In the case at hand, the land is recorded as nazul land for the Public Works Department. Nothing has been brought on record that it had ever been notified for transfer in favour of GDA. Thus analysed, GDA never became the owner of the land or had the authority to deal with the land and, therefore, it could not have put the land to auction for any purpose whatsoever.” 52. Nothing has been brought on record that it had ever been notified for transfer in favour of GDA. Thus analysed, GDA never became the owner of the land or had the authority to deal with the land and, therefore, it could not have put the land to auction for any purpose whatsoever.” 52. In the plaint in paragraph No.4, the plaintiff has stated that they are occupying the suit property legally under the grant of a lease by the first defendant itself upto 8.3.1987 and therefore, the provisions, viz., Section 258 and 441 are not applicable and that the notice under Ex.A18 is also illegal. 53. As afore stated even according to the plaintiff, after 8.3.1987 their possession is wrongful one. Moreover as per the communication of the Sub Registrar, the plaintiff's welfare association was removed from the Register of Societies as on 18.12.2007 as they had not renewed their registration continuously for more than three years and therefore, an action was taken under Section 44 of the Registration Act and the same was published in the Government Gazette which was not emphatically denied by the plaintiff. 54. Keeping in view of the above fact, the substantial questions of law are answered in favour of the first defendant and as against the plaintiff and therefore, this Court is constrained to interfere with the concurrent finding of the courts below. 55. Accordingly, the second appeal is allowed and the judgment and decree of the courts below are set aside and the suit is also dismissed. However, there will be no order as to costs. Connected M.P. is closed.