P.R. Gokulakrishnan, J.
1. The defendant is the appellant. The suit was filed for a mandatory injunction directing the defendant to demolish the construction put up unauthorisedly in the plaint schedule property, premises No. 124/125, Sami Naicken Street, Chintadripet, Madras, and to level the ground restoring it to its original condition and also for directing the defendant to quit and deliver vacant possession of the plaint schedule property. According to the plaintiffs, they came to know about two months prior to the filing of the suit that the defendant had started putting up new construction in the open space reserved by the plaintiffs for putting up shops. This act of the defendant, according to the plaintiffs was unauthorised and illegal on his part, and he has no right or authority to put up construction in the open space reserved by the plaintiffs for constructing a market. The defendant, inter alia,, contended that according to the tenancy created in the year 1926 he has put up structures and constructed buildings to suit his purposes in the portion allotted to him and that he never put up any construction in the open space as alleged by the plaintiffs. According to him, the open space is in the same state and condition in which it was in the year 1926 when the premises in old and dilapidated condition was leased to him. The construction made by him in the end of 1963 and completed in April, 1964 was by way of reconstruction of the tiled portion into a terraced one for providing additional accommodation for the classes of the 'C.V.S. Higher Elementary School' from standard VI to standard VIII. In any event, the defendant contended, the open space has been included in the tenancy right given to-him and as such, the plaintiffs cannot obstruct him from putting up any construction thereon. The defendant also contended that he never set up any adverse or hostile title to the suit property, but, on the other hand, it has been admitted and recognised by the plaintiffs that the open space forms part of, and is included in, the tenancy of the defendant. On these contentions, the defendant prayed for a dismissal of the suit.
2. The trial Court, though on an interpretation of Exhibit A-1 held that the portion measuring 997.5/8 square feet, which is the subject-matter of the suit, was excluded in the lease granted to the defendant, found on the subsequent resolution Exhibit A-3, that it can be construed that the said portion was also let out to the defendant. From Exhibit A-6 dated 10th February, 1964 it also presumed that the defendant has been in possession and enjoyment of the entire premises as a lessee from 5th July, 1931. On this interpretation and presumption, the trial Court dismissed the suit. Aggrieved by the decision of the trial Court, the plaintiffs preferred an appeal. The Lower Appellate Court after elaborately discussing the evidence on record and also interpreting Exhibit A-1 and A-3 came to the conclusion that the letter of the defendant mentioned in Exhibit A-3 in a way makes it clear that the plaintiffs leased out the premises as per the resolution Exhibit A-1 reserving the front portion for themselves and that the said lease was only for five years. The Lower Appellate Court also observed that if really in 1927 the entire premises was leased out to the defendant by the plaintiffs without reserving the front portion therein for themselves, there was no need for the defendant to make a request in the letter dated 22nd May, 1931 to lease out the whole premises at the rate of Rs. 11 per month and that the proposal to pay Re. 1 more per month as per the said letter mentioned in Exhibit A-3 is also in consonance with what was leased out in 1927 was not the entire premises but only the portion excluding the front portion measuring 997.5/8 square feet. In the result, the Lower Appellate Court found that the front portion measuring 997.5/8 square feet in the suit property, was not leased by the plaintiffs to the defendant and that the plaintiffs are entitled to the reliefs of mandatory injunctions and recovery of vacant possession of the suit land. Thus, the Lower Appellate Court allowed the appeal and decreed the suit as prayed for. Aggrieved by that decision, the defendant has preferred this second appeal.
3. I have been taken through Exhibits A-2, A-3 and A-4. From a reasoning of Exhibit A-3, which contains resolution No. 43 it is evident that the extension of lease was sanctioned only to the extent of the original lease under Exhibit A-1 of the year 1927 for a further period of five years and it cannot be said or interpreted that as per the said resolution the plaintiffs agreed to lease out the entire premises at the rate offered by the defendant as per the letter dated 22nd May, 1931. The Lower Appellate Court observed that the plaintiffs cannot be said to have kept quiet, acquiesced or stood by when the defendant put up construction on the suit property. During 1964 the plaintiffs issued a notice to the defendant objecting to the unauthorised construction by the defendant in the open space which is the subject-matter of the suit. As regards the user of the open space by the students of the institution, the Lower Appellate Court properly discussed that aspect and held that such user, if any, would not in any way probabilise that the suit front portion was also leased out to the defendant. I am in complete agreement with the findings of the Lower Appellate Court.
4. At the Second Appellate Stage, the appellant wanted to amend the written statement filed in the suit (O.S. No. 2356 of 1964) by adding the following Paragraph:
In any event the Appellants (Defendant) being in possession of the suit property ever since the inception of the tenancy or at any rate for over a period of 12 years prior to the filing of the suit, they are entitled to be in possession of the suit property as tenants taking the land as part of their holding.
In this regard, he has filed C.M.P. No. 8208 of 1974 for amendment of the written statement and C.M.P. No. 8309 of 1974 for permission to raise the said plea by way of additional ground in the second appeal. Thiru Ram Mohan, learned Counsel appearing for the appellant, strenuously contended that the amendment should be allowed in the interests of justice. He also relied on the decision of the Supreme Court in Nair Service Society v. K.C. Alexander : 3SCR163 , wherein it has been observed:
It is a fixed principle of law that a suit must be tried on the original cause of action and this principle governs not only the trial of suits but also appeals. The appeal being a continuation of the suit new pleas are not considered. If circumstances ' change they can form the subject of some other proceedings but need not ordinarily' be considered in the appeal. To this proposition there are a few exceptions. Sometimes it happens that the original relief claimed becomes inappropriate, or the law changes affecting the rights of the parties. In such cases Courts may allow an amendment pleading the changed circumstances. Sometimes also the changed circumstances shorten litigation and that to avoid circuity of action the Courts allow an amendment.
I do not think this decision will in any way help the appellant. The amendment now placed by the defendant is totally inconsistent with the stand taken by him in the written statement. The defendant came forward with the contention that under Exhibit A-3 he got |the suit property on lease as early as 1931. if not before and that he is the lessee thereof. To contend that he has acquired absolute right by adverse possession by (introducing an amendment in the written statement is diametrically opposed to the |case put forth by him that he is the lessee (of the suit land. In the written statement the defendant, in clear terms, put I forth his right as lessee under the plaintiff, and not as a trespasser having acquired title to the suit property by adverse possession. Hence I do not think that such an amendment can be entertained and that too, at this late stage, when especially the case pleaded by way of amendment is diametrically opposed to the one already pleaded in the written statement.
5. This apart, in Exhibit A-6 dated 10th February, 1964 issued by the plaintiffs, they have put forth the case that the defendant trespassed and put up construction immediately before the issue of the notice. Thus, it is clear the construction could have been only in the year 1964 or two or three months earlier thereto. The suit was filed in 1964 itself. The very fact that the plaintiff has come forward with the suit in 1964 after issuing the notice under Exhibit A-6 clearly shows that the trespass and the construction was only in or about 1963 and 1964. Hence it is too much for the defendant to contend that he is entitled to retain the suit property by reason of adverse possession.
6. It is also interesting to note that in ground No. 5 in his memorandum of second appeal, this is what is stated by the appellant:
The learned Appellate Judge failed to consider Exhibit A-6 wherein the respondents stated that the appellant is a tenant in respect of entire premises Nos. 124/125, Sami Naicken Street, Chintadripet, Madras-2, on a monthly rent of Rs. 20.
Thiru Lakshminarayana Reddy learned : Counsel appearing for the respondents, cited a number of decisions against the allowing of the amendment of the written statement. In view of my discussion supra that, such an amendment cannot be allowed the petition to amend the written statement is dismissed.
7. Thiru Lakshminarayana Reddy also relied on the decision in Bodi Reddi v. Appu Goundan : (1970)2MLJ577 , for the proposition that if the Court finds that the defendant is a trespasser it must automatically order the mandatory injunction prayed for by the plaintiffs unless acquiescence amounting to equitable estoppel is established. The learned Counsel appearing for the respondents states that the plaintiffs have proved that the defendant is a trespasser and there is no question of any acquiescence by the plaintiffs giving the benefit of equitable estoppel in favour of the defendant.
8. The Lower Appellate Court has completely discussed all the aspects of the case and, as a matter of fact, found that the lease does not cover the disputed portion and has rightly decreed the suit as prayed for by the plaintiffs. As per the decision in Bodi Reddy v. Appu Goundan : (1970)2MLJ577 , the mandatory injunction prayed for must be automatically granted since all the conditions mentioned in the said decision are satisfied in this case
9. There is absolutely no question of law, as such; involved in the second appeal for me to interfere with the findings of fact arrived at by the Lower Appellate Court. The Lower Appellate Court being the final Court of fact, the opinion formed by it on the appreciation of the oral and documentary evidence, cannot be lightly interfered with at the second appellate stage.
10. In these circumstances the second appeal is dismissed. No costs. No leave. C.M.P. Nos. 8308 and 8309 of 1974 are also dismissed. Time to remove the superstructure and vacate is four months.