JUDGMENT : Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree, dated 18.11.2010 passed in A.S.No.224 of 2005, on the file of the Principal Sub Court, Kumbakonam, confirming the judgment and decree dated 22.12.2000 passed in O.S.No.377 of 1998 on the file of the Principal District Munsif Court, Kumbakonam. 1. The concurrent Judgments and decrees passed in O.S.No.377 of 1998 by the Principal District Munsif Court, Kumbakonam and in A.S.No.224 of 2005, by the Principal Sub Court, Kumbakonam, are being challenged in the present Second Appeal. 2. For the sake of convenience, the parties are referred to as, as described before the trial Court. 3. The appellant/plaintiff has instituted a suit in O.S.No.377 of 1998, on the file of the trial Court, for the relief of permanent injunction restraining the defendants, their heirs, agents, men, servants or anybody claiming through them in any way using the suit property for any purpose other than agriculture or to carry out any construction works thereon and also for the relief of granting mandatory injunction directing the defendants and any person claiming through them to remove the newly put up thatched house in a portion of the suit property and to restore the suit property to its original condition, wherein, the present respondents have been shown as defendants. 4. The case of the plaintiff / Arulmighu Dhenupureeswaraswami Devasthanam, Represented by its Executive Officer, is that the suit property is a punja cultivable land belonging to the Devasthanam. The first defendant was a cultivating tenant along with other punja properties of the plaintiff-Devasthanam and he was paying Rs.33/- per fasali, as lease hold rent for 1 acre 63 cents. The defendants were cultivating the punja lands and the Temple authority was receiving the lease rent. The second defendant is the brother of the first defendant and the third defendant is the son of the second defendant. The defendants 2 and 3 have no right over the suit property. The first defendant, who was a lessee, without the knowledge of the Temple, had given an extent of 0.98 cents out of his lease hold lands to the defendants 2 and 3 on some family arrangements between them. The first defendant has also sent a deed of surrender, dated 27.08.1994 to the Devasthanam, consenting for the transfer of lease hold rights in favour of the second defendant. The first defendant has also sent a deed of surrender, dated 27.08.1994 to the Devasthanam, consenting for the transfer of lease hold rights in favour of the second defendant. Since no requisition was made by the second defendant, the surrender deed, dated 27.08.1994 was kept in abeyance and not acted upon and the said lands stand in the name of the Temple and the first defendant was cultivating the said lands till 1994. As the first defendant was the original lessee, he has to pay the rent to the Temple, as per the lease arrangement entered between the parties. For the past two years, no cultivation has been done by the second defendant. On 22.06.1998, the plaintiff, on his periodical visit, found that the third defendant was digging the earth for the purpose of laying foundation to construct a building and informed him that the suit property being an agricultural land cannot be used for any other purpose other than agriculture and the defendants also agreed to stop the construction work. On 30.06.1998 also, there was no such work carried on and after 7 days, when the plaintiff visited the property, the third defendant had put up walls with bricks and mud and was putting thatched roof and the plaintiff had managed to stop the third defendant from carrying out further construction work. The defendants have openly stated that they would put up a permanent structure in the place of the existing thatched house and the plaintiff cannot do anything and they would put up two more houses in the remaining vacant area of the suit property. The plaintiff further states that the defendants have no right to use the property to any other purpose other than agriculture. The defendants have converted the agricultural land into a house site, which is unauthorised and unlawful. Since the defendants are trying to put up some house in the suit property without the permission from the Devasthanam, the plaintiff left with no other alternative remedy, had filed the suit for the above stated relief. 5. A written statement was filed by the second defendant which was adopted by the third defendant and the first defendant remained ex-parte. The defendants 2 and 3 admitted that the suit property is a punja land, but it is unable to cultivate any crops as there is no irrigation facility to cultivate the lands. 5. A written statement was filed by the second defendant which was adopted by the third defendant and the first defendant remained ex-parte. The defendants 2 and 3 admitted that the suit property is a punja land, but it is unable to cultivate any crops as there is no irrigation facility to cultivate the lands. The suit property was originally leased out in favour of the first defendant's ancestor. The second defendant is the first defendant's elder brother and the third defendant is the son of the second defendant. With the prior consent of the plaintiff's Devasthanam, the first defendant had given an extent of 0.98 cents to the second defendant under a family arrangement on 27.08.1994. The second defendant had sent a requisition to the Temple authorities to transfer of lease hold rights in his favour. In the year 1994, the second defendant constructed a thatched house in the suit property with the consent of the plaintiff. From 1994 onwards, the second defendant is residing in the suit property with his family members and also obtained electricity connection and the house tax is also assessed to the house in the name of his son-in-law/Mathiyalagan. The second defendant is regularly paying the rent to the plaintiff's Devasthanam and the Temple authority also received rent from the second defendant. The Temple authority also filed a petition before the Revenue Court, Kumbakonam in P.T.No.136 of 1996, claiming arrears of rent against the first defendant and the second defendant and the second defendant had paid the rent to the Devasthanam. The plaintiff had never visited the suit property on 22.06.1998. The second defendant had not put up any construction in the 1998, as alleged by the plaintiff. The house was constructed in the year 1994 itself and the defendants are cultivating punja crops in the vacant site. There is no cause of action for filing the suit and the alleged incident was narrated only for the purpose of cause of action for the suit. The lease of the suit property in favour of the ancestors of the defendants were given long back and the principles of lease of the site on the lost grant applies to this case. The lease is in the nature of a permanent lease which has been granted for the purpose of residence in favour of the defendants' ancestors. The lease of the suit property in favour of the ancestors of the defendants were given long back and the principles of lease of the site on the lost grant applies to this case. The lease is in the nature of a permanent lease which has been granted for the purpose of residence in favour of the defendants' ancestors. The suit property has been continuously in possession and enjoyment of the defendants and their ancestors. The plaintiff is not entitled to the relief claimed in the plaint and prayed for dismissal of the suit. 6. Before the trial Court, on the side of the plaintiff, P.W.1 to P.W.8 were examined and Exs.A1 to A20 were marked. On the side of the defendants, D.W.1 to D.W.3 were examined and Ex.B.1 to Ex.B.3 was marked and also Ex.X.1 and Ex.X.2 was also marked. 7. On the basis of the rival pleadings made on either side, the trial Court, after framing necessary issues and after evaluating both the oral and documentary evidence, has partly allowed the suit by granting permanent injunction restraining the defendants from proceeding with further construction, but dismissed the suit with regard to mandatory injunction. 8. Aggrieved by the disallowed portion passed by the trial Court, the plaintiff, as appellant, had filed an Appeal Suit in A.S.No.224 of 2005, on the file of the first Appellate Court. 8. Aggrieved by the disallowed portion passed by the trial Court, the plaintiff, as appellant, had filed an Appeal Suit in A.S.No.224 of 2005, on the file of the first Appellate Court. In the said Appeal, the plaintiff has raised various grounds stating that as per the Tamil Nadu General Trust Act, 57 of 1961, the lands which have been given for lease cannot be converted to various other purposes and the trial Court has granted only permanent injunction for not constructing any further building, but, against which, the defendants have not filed any appeal and the trial Court has not granted any mandatory injunction, which ought to have been granted by the trial Court when the defendants had tried to convert the said property to various other purposes and when they have no right to do so, the trial Court ought to have come to the conclusion that the thatched houses constructed are against the principles and they ought to have granted the same and also further submitted that the houses which situate in poramboke, was removed by the local authorities and when the same has been proved by the plaintiff by producing through witnesses and the defendants 2 and 3 have not appeared before the trial Court for giving evidences and the power of attorney appeared before the trial Court for giving evidence and his evidence cannot be accepted by the trial Court. 9. The defendants have stated that the plaintiff has not stated the correct extent of land. In one place, they have stated as 1 acre and 97 cents and in another place, it has been stated that in R.S.No.308/3 only 0.61 cents and 96 cents, which has been contradictorily stated and hence, the plaintiff was not in a position to prove the extent of the land which will not give a cause of action and further submitted that there was no survey number and document number as stated by the plaintiff and in the year 1994 itself, the second defendant has been doing cultivation and house has been constructed in the year 1993 and electricity connection has been obtained by the same and hence, the trial Court ought to have considered the claim of the plaintiff and prayed for dismissal of the first Appeal. 10. 10. The first Appellate Court, after hearing both sides and upon reappraising the evidence available on record, has dismissed the appeal and confirmed the Judgment and decree passed by the trial Court. 11. Challenging the said concurrent Judgments and decrees passed by the Courts below, the present Second Appeal has been preferred at the instance of the plaintiff, as appellant. 12. At the time of admitting the present second appeal, this Court had framed the following substantial question of law for consideration: "Whether the Judgment of the Courts below are correct in law in not considering Exs.A.6, A7 and A8 and testimony of P.W.3, which demonstrate that the offending construction is of recent origin which came into existence, much prior to the filing of the suit?". 13. The learned counsel appearing for the appellant/plaintiff would submit that the Courts below had erred in not believing Ex.A.6 and from the perusal of Exs.A.7 and A.8, it could be seen that the construction of the offending superstructure was made only in the year 1998. The Courts below ought to have seen that electric supply for Mathiazhagan's house was shifted to the suit property and therefore, the same ought not to have been considered by the Courts below. Further, the Panchayat clerk has submitted that the house tax stands in the name of Mathiazhagan was deleted in 1998, when the encroachment was removed. The Courts below have failed to take into account the Village Adangal viz., Ex.A.4 and Ex.A.5 and further the Courts below ought to have seen that the construction being unauthorized cannot be allowed to be continued and the lessee has been allowed to put the land to different users. 14. The learned counsel appearing for the appellant/plaintiff further submits that when the Temple has given a lease hold right to the first defendant, who has also given a surrender deed on 27.08.1994, which was marked as Ex.A.1, but he requested for the transfer of lease hold right in favour of the second defendant. As the transfer is illegal, no permission or approval was granted by the plaintiff/Devasthanam and the said deed of surrender was not acted upon and no right has been granted in favour of the second defendant. As the transfer is illegal, no permission or approval was granted by the plaintiff/Devasthanam and the said deed of surrender was not acted upon and no right has been granted in favour of the second defendant. The suit property was converted into a house site by constructing a house by the defendants on 07.07.1998 only and on 22.06.1998, when they have tried to put up a construction, the authorities have caught hold the said move, but on 07.07.1998, in the interregnum period, had constructed the wall with bricks and mud and put up a thatched roof. Further, when the defendants have tried to construct buildings, the plaintiff had filed the suit. The first defendant being set ex-parte and the second defendant, who alleged to have been obtained lease hold right from the first defendant by family arrangement contested the suit along with the third defendant by filing a written statement and the suit property have been originally given for agricultural activities only and the second defendant's contention that there was no water available for irrigation and hence, they have constructed a house for staying on is not acceptable. Further, it has been stated the house was constructed very recently and filed a suit with the above stated prayer. 15. Though notices have been served and the names of the respondents have been printed in the cause-list, none appear on behalf of the respondents either in person or through counsel. 16. Heard the learned counsel for the appellant and also perused the records carefully. 17. On a perusal of the materials available on record, it is seen that during the time of trial, witnesses were examined and it was found that the first defendant's surrender deed was examined by the trial Court, wherein, the first defendant, as per the family arrangement, has transferred the lease hold right in favour of the second defendant to an extent of 96 cents of land, which belongs to Arulmighu Dhenupureeswaraswami Temple and the said land is an lease hold land. That being the case, the said document would prove that the land belongs to the Temple as per Ex.A.3 and Ex.A.4. The defendants 2 and 3 also in their written statement submitted that the said land belonging to the Temple was given in permanent lease to the ancestors, but no document whatsoever has been produced to that effect. That being the case, the said document would prove that the land belongs to the Temple as per Ex.A.3 and Ex.A.4. The defendants 2 and 3 also in their written statement submitted that the said land belonging to the Temple was given in permanent lease to the ancestors, but no document whatsoever has been produced to that effect. In the plaint, the plaintiff has stated that defendants have submitted that they will further construct two more houses, hence sought for permanent injunction and also mandatory injunction. 18. In the plaint, it is seen that on 07.07.1998, when the plaintiff visited the property, a thatched house has been constructed. But the Temple writer, who was examined as P.W.1 has deposed that on 22.06.1998, he has informed the defendants that after getting permission from the Temple only, they can construct the same, but without giving any application on 07.07.1998, they have completed the construction of the compound wall and they have also put up a thatched roof. When he objected for the same, they have also threatened and stated that they will construct two more houses. But the defendants in their written statement stated that in the year 1994 itself, with the permission of the Temple authorities, they have constructed the house, but if at all the house was constructed in the year 1994 or 1998, the documents filed by the defendants from Ex.B.1 to Ex.B.20 would show that the lease rent paid and the electricity connection details are let in. An Advocate Commissioner was appointed to inspect the property. According to the said report, the houses constructed has three divisions and the number of house was 8/18 and at the time of inspection itself, there was electricity connection in S.C.No.855/1 and electricity bills and payment of receipts were filed by the defendants. As per Ex.B.13, on 17.02.1997 itself, for the month of January, the defendants have paid a sum of Rs.20/- and accordingly, in the year 1997 itself, electricity connection was given and another bill relates to November, 1996 and hence, the trial Court has come to the conclusion that during the year 1995-96 itself, the house has been constructed and electricity connection been given. Hence, the trial Court was of the opinion that the said electricity connection has been given for the house which was in existence from the year 1995-96 itself. Hence, the trial Court was of the opinion that the said electricity connection has been given for the house which was in existence from the year 1995-96 itself. That being the case, the contention made by the plaintiff that the houses were constructed very recently, was not accepted and rejected the prayer for mandatory injunction. 19. The trial Court has also come to the conclusion that based on Ex.B.1 to Ex.B.20 and also considering the deposition of witnesses, who were examined during trial, mainly relied on Ex.C.1 and Ex.C.2, wherein, found that the electricity connection has been given in the year 1995-96 itself, which would show that prior to 1995-96, houses must have been constructed and not very recently. Further, the Court has allowed the suit partly by granting permanent injunction, but dismissed the suit with regard to the relief of mandatory injunction. 20. The said Dhenupureeswaraswami Devasthanam has given the land for lease only cultivation, but the first defendant, who was the original lease holder, had transferred the lease hold right to the second defendant by way of family arrangement, dated 27.09.1994, but no evidence has been produced to show a family arrangement. When the Temple has not accepted the claim made by the defendants and no evidence was produced to show that they have issued any order in favour of the second defendant for leasing the said land. The second defendant, who had stated that he had consulted with the Devasthanam in the year 1994 itself for construction of a thatched house, was also not substantiated by letting in appropriate evidence. Further, the suit property being a punja land and if it is not fit for cultivation and if no irrigation facility are available, no evidence let in, but he has contradictorily deposed that the said land is let out for lease for residential purpose. When he himself has stated in the pleadings that the first defendant has executed a family arrangement and only part of the said land to him and the defendants have agreed that the land belongs to Dhenupureeswaraswami Devasthanam, he cannot now come and say that the suit property is let out only for residential purposes. Even assuming that lease is given to the first defendant, it is only for cultivation and he is only a cultivating tenant and he cannot violate the lease conditions and convert it for residential purposes. Even assuming that lease is given to the first defendant, it is only for cultivation and he is only a cultivating tenant and he cannot violate the lease conditions and convert it for residential purposes. Even with the permission of the lesser, no permanent structure can be put up by the defendants. Even as per Section 108 of the Transfer of Property Act, the defendants have been restrained from converting the same, without obtaining permission from the plaintiff. Further, the second defendant is not a lessee in the eye of the Temple, as it is only the first defendant, who is the lessee, alleged to have entered into some kind of family arrangement, without the knowledge and consent of the Temple, is not accepted. When the approval has not been granted by Dhenupureeswaraswami Devasthanam, the plaintiff is entitled for mandatory injunction to remove the alleged superstructure, is the point raised by the plaintiff/appellant herein and accepted. 21. The Courts below have considered the period of construction. Even though the construction has made in the year 1995, electricity connection was also obtained, the construction was accepted by the Temple but only the date in which the construction was made is in dispute. According to the Devasthanam, there should not be any permanent structure in the agricultural property and hence, the construction made by the defendants without obtaining any permission from the authorities should be been removed by the plaintiff by issuing appropriate orders. There is no legal impediment in granting relief of mandatory injunction when the defendants have not filed any documents to prove that they have any lease hold right in the said lands. The surrender deed cannot be accepted as a valid document, as it is only a document relating to the surrendering his right and his recommendation to transfer it to the second defendant has to be acted upon by the authority and in the absence of any such order being passed by the Temple authorities in favour of the second defendant, he has got no right over the property and cannot claim such right by squatting over the property. Further, the question of cause of action for granting mandatory injunction is concerned, there is an admission by the said defendants that they have constructed the house in the year 1995 when they have no right over the property, they cannot construct any such building in the said land. 22. In the Judgment reported in 2020 (1) LW 631 [N.Chandrasekaran and others Vs. Arulmighu Thiruvatteeswarar Thirukovil represented by its Executive Officer], this Court held as follows:- "70. This Court in the case of Arulmigu Kolavizhi Amman Temple; G.N.Chetty Street, Mylapore-4, represented by the Executive Officer, Arulmighu Kapaleeswarar Temple, Mylapore, Madras - 4 Vs. R.Shanmugam (died) [2008 (3) MLJ page 732], wherein in paragraph Nos.39 and 40, this Court observed as under:- "39. As per the original provision under Section 109 of the H.R & C.E Act, 1959, a party cannot set up a plea against the religious institution on the ground of prescription and adverse possession when the properties had vested in him after 30.09.1951. If the property had vested in such a person or his predecessor before the 30.09.1951, the person vested with the property of any religious institution can validly set up a plea of prescription and adverse possession. But, as per the newly substituted provision under Section 109 of the H.R & C.E Act through the Tamil Nadu Act 28 of 2003 which came into effect on 01.09.2003, the entire provisions of the Limitation Act, 1963 shall not apply to any suit for possession of immovable property belonging to any religious institution. 40. The intention of the legislature of substitution of Section 109 of the Act is to protect the property of the religious institutions from being lost by adverse possession on account of the limitation prescribed under the Limitation Act, 1963. Let us visualize a situation where the plaintiff Temple withdrew this suit and laid a fresh suit after the year 2003. Can the defendants still contend that the suit laid for recovery of possession by the plaintiff Temple is barred by limitation in face of the substitution of Section 109 of the H.R & C.E Act. The defendants cannot definitely set up such a plea. Denying the plaintiff Temple to take advantage of the benevolent substitution of Section 109 of the H.R & C.E Act will multiply the civil proceedings between the parties. The defendants cannot definitely set up such a plea. Denying the plaintiff Temple to take advantage of the benevolent substitution of Section 109 of the H.R & C.E Act will multiply the civil proceedings between the parties. Therefore, the Court finds that even for the pending suits, the provision under the substituted Section 109 of the H.R & C.E Act will apply. Such being the case, the Court finds that the suit is not barred by limitation for the religious institutions to lay a suit for possession of immovable property belonging to it." Religious institutions lands to be safe-guarded and accordingly, from various Judgments, it could be observed that the Temple authorities have every right to proceed against the persons, who are all having lease hold rights and there cannot be any limitation fixed for the religious institutions to lay a suit for possession of immovable property belonging to the Temple. 23. Accordingly, the case of the plaintiff is seeking the right for recovery of possession by granting mandatory injunction. As already the Court below has granted permanent injunction, the only prayer now before this Court is seeking for mandatory injunction. As the plaintiff has made out a case that 109 is not retrospective and the act will apply even for the pending suits and accordingly, when the plaintiff has made out a case that the defendants have constructed a thatched house without obtaining any permission of Dhenupureeswaraswami Devasthanam and when they have no right to do so, this Court is of the view that the trial Court had erred in not granting the relief of mandatory injunction as against the defendants and this Court having supervisory jurisdiction to consider the facts as well as the law in existence in this regard and to grant mandatory injunction. The plaintiff has established the case for issuance of mandatory injunction. Further, it is to be seen that when the defendants have not produced any document which stands in their name or any other order being passed by Dhenupureeswaraswami Devasthanam giving permission for construction and that the electricity connections are given to any property, even for poramboke land if any building is constructed, electricity connections are given and that alone would not confer any right to the defendants for canvassing their case. 24. 24. As the suit property was leased out in favour of the first defendant, he cannot settle it by way of any family arrangement to the second defendant, without prior approval of the plaintiff, which was also not considered by the trial Court and hence, this Court is of the considered view that the relief of mandatory injunction has to be granted against the second defendant, who has got no right over the property in question. 25. From the above facts and circumstances and the legal principle laid down by this Court in 2020 (1) LW 631 [N.Chandrasekaran and others Vs. Arulmighu Thiruvatteeswarar Thirukovil represented by its Executive Officer], a person can set up a plea of prescription and adverse possession when the properties vested with him before 30.09.1951 and he can set up the said plea only when the property is vested with him before 30.09.1951. Moreover as per the substituted provision to Section 109 of the HR & C.E Act through the Tamil Nadu Act 28 of 2003 which came into effect on 01.09.2003, provision of limitation shall not apply to any suit for possession of immovable property belonging to any religious institution and hence, the period of limitation as prescribed under Section 135 of the Limitation Act does not apply to the case of the plaintiff. Further, the property belonging to the plaintiff/Temple was leased out only to the first defendant and he has not power to settle the same to the second defendant, in which, she has constructed a house. The Courts below ought to have granted the relief of mandatory injunction in addition to the grant of permanent injunction, which have omitted to do so. Further, the Courts below have to give foremost competence to the lands belonging to the Religious Institutions when they have sought for mandatory injunction. 26. For all these reasons, this Court is of the considered view that the plaintiff is entitled to get the relief of mandatory injunction. This Court while confirming the relief of permanent injunction granted by the Courts below had set aside the dismissal in respect of the claim of the plaintiff regarding mandatory injunction. The substantial question of law is partly allowed in favour of the appellant/plaintiff and against the defendants/respondents. 27. In the result, the Second Appeal is partly allowed granting the relief of mandatory injunction to the plaintiff/appellant as sought for in the suit. The substantial question of law is partly allowed in favour of the appellant/plaintiff and against the defendants/respondents. 27. In the result, the Second Appeal is partly allowed granting the relief of mandatory injunction to the plaintiff/appellant as sought for in the suit. The defendants are directed to hand over the vacant possession of the land in question, failing which, the appellant/plaintiff is at liberty to proceed against the defendants by filing necessary Execution Petition and also by seeking police protection, if so needed. No costs.