BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27/10/2006 CORAM : THE HONOURABLE MR. JUSTICE S.TAMILVANAN Second Appeal No.1457 of 1994 1.Soundaram 2.Ismail ... Appellants Vs. Krishnan ... Respondent Second Appeal is filed against the Judgment and Decree, dated 28.02.1994 on the file of the Subordinate Judge, Sivaganga in A.S.No.90 of 1991, preferred against the Judgment and Decree, dated 08.07.1991, made in O.S.No.148 of 1988 on the file of the District Munsif Court, Sivaganga. !For Appellants ... Mr.A.Devaraj for Mr.E.M.Sudarsana Nachiappan ^For Respondent ... Mr.O.Thevan Kumar for Mr.A.Sivaji. :JUDGMENT
This Second Appeal is directed against the Judgment and Decree, dated
28.02.1994, made in A.S.No.90 of 1991 on the file of the Subordinate Judge,
Sivaganga, reversing the Judgment and Decree, dated 08.07.1991, made in
O.S.No.148 of 1988 on the file of the District Munsif, Sivaganga.
2. The brief facts of the case are as follows :
The appellants herein are the defendants in the suit. The suit was
filed by the respondent / plaintiff, seeking permanent injunction against the
defendants restraining them from interfering with the right of respondent /
plaintiff and others right in entering into EF portion of the plaint schedule
property for worshipping the temple of pathinettam padi karupansamy deity
described in the ABCD portion of the suit property. The ‘ABCD’ portion and the
entrance EF portion described in the plaint schedule and shown in the rough
sketch is the suit property, which is a part of the property in Door No.72,
Gandhiji Street, Sivaganga. The respondent / plaintiff has stated in the plaint
that pathinettam padi karupansamy is the family deity of the plaintiff, his
relatives and other worshipers and they use to worship the deity at ABCD portion
through EF entrance portion from the time immemorial to the plaintiff. According
to the plaintiff, in the temple house, apart from pathinettampadi karupansamy,
there are other deities namely, Chellayee Amman, Veerapadra Swamy, Ladasannasi,
Rakkayee Amman, Pechiamman, Samayanaswamy, Kaliammal and that the plaintiff was
doing the activities, pertaining to the functions and poojas, as one of the
important persons attached to the temple house. According to him, before filing
the suit, the first defendant attempted to encroach the property belongs to the
temple house on the eastern side and the same was objected to by the respondent
/ plaintiff. Hence, in order to prevent the respondent / plaintiff from entering
into the temple house, the first appellant with the assistance of the second
appellant, who belongs to muslim religion, attempted to interfere with the right
of the plaintiff and others, by making arrangement to close ‘EF’ entrance
portion and hence the suit was filed by the respondent / plaintiff, seeking
permanent injunction.
3. According to the first appellant / first defendant, the entire
property, including the suit property was originally belonged to one Kalamegam
and his brothers Narayanan and Chellamuthu. After the demise of Kalamegam, his
wife Parvathiammal and their adopted son Thirugnanasambandam, husband of the
first defendant were enjoying the property jointly with the said Narayanan and
Chellamuthu. Parvathi Ammal subsequently purchased the share of Narayanan in the
suit property from his wife Meenakshi Ammal and his daughter Muthulakshmi on
11.01.1954. Similarly, Parvathi Ammal purchased the share of Chellamuthu Pillai
from his legal heirs under the sale deed, dated 03.11.1955. The first defendant
would further state that the ABCD portion shown in the plaint schedule was the
room used for worshiping the deity, by Kalamegam and his brothers Narayanan and
Chellamuthu, after selling the share, the said Narayanan and Chellamuthu never
used the room for worshiping the deity and her husband Thirugnanasambandam
inherited the property as adopted son of late Parvathi Ammal and after his
death, the first defendant was in possession and enjoyment of the property as
absolute owner and that the second defendant purchased the front portion of the
property in Door No.72 and the same was in possession and enjoyment of the 2nd
defendant. According to the first appellant / first defendant, the respondent /
plaintiff had no right what so ever, in the suit property and she has prayed for
dismissal of the suit. The second defendant adopted the plea of the first
defendant.
4. On the side of the plaintiff, the respondent / plaintiff was examined
as P.W.1, apart from the witnesses P.W.2 to P.W.6. Exs.A1 to A18 were also
marked on the side of the respondent / plaintiff. On the side of the appellants
/ defendants, both of them were examined as D.W.1 and D.W.3, and one
Ananthanarayanan was examined as D.W.2, apart from marking the documents, Exs.B1
to B43. An Advocate Commissioner was appointed, who inspected the property
filed his report and plan, which were marked as Exs.C1 and C2.
5. The trial court after considering the oral and documentary evidence and
the arguments advanced by both sides, dismissed the suit with costs. Aggrieved
by which the plaintiff preferred the first appeal before the Sub Court,
Sivaganga. The first appellate court considering the evidence on record and the
arguments advanced by both sides, reversed the Judgment and Decree passed by the
trial court and decreed the suit as prayed for with costs. Against which this
Second Appeal has been preferred by the defendants in the suit.
6. This Second Appeal has been admitted on the following Substantial
Question of Law :
” Whether the first appellate court was correct in reversing the
Judgment and Decree of the trial court without considering the documents Exs.B1
to B43 ?”
7. The learned counsel Mr.M.Devaraj appearing for the appellants contended
that the respondent / plaintiff has no loco-standi or right to seek right of
entrance in the ‘EF’ portion stated in the plaint schedule. According to the
learned counsel for the appellants, the lower appellate court was mislead, as if
the subject matter of the suit was a common temple and certain defined group of
people had got right of worship. It was also contended that the lower appellate
court was mislead by using the word private temple and the ‘EF’ portion as
passage to the temple. According to the learned counsel, the lower appellate
court has not properly considering the totality of Exs.B1 to B43 and it could
not have relied upon Ex.A5.
8. The first appellate court has framed the following points for
determination :
1. Whether the appellants / plaintiffs had no right in the entrance
of the suit property ?
2. Whether the respondent / plaintiff was entitled to permanent injunction as
prayed for?
3. What relief the appellants / defendants were entitled to ?
9. The first appellate court has held that the respondent/ plaintiff and
other worshipers stated in the plaint are entitled to worship the deity of the
suit temple, by using the ‘EF’ entrance of the suit property. As per the
findings of the court below, Ex.A5 and the other evidence adduced in the suit,
would establish that the plaintiff and others as stated in the plaint were
entitled to the suit temple and that the first defendant alone was not entitled
to the said suit property and with the above findings, the first appellate court
has reversed the judgment of the trial court and granted permanent injunction in
favour of the respondent/plaintiff and against the Defendants, restraining them
from interfering with the right of the plaintiff and other worshipers who are
entitled to worship the temple house from entering through the said ‘EF’
entrance.
10. The learned counsel for the appellants / defendants drew the attention
of this court to the defendants documents marked as Exs.B1 to B43 and contented
that the first defendant has proved the title and possession of the suit
property, acquired by her through her husband late Thirugnanasambandam, who was
the adopted son of Parvathiammal. As per Ex.B43, the first appellant sold the
front portion of the property on 17.05.1975 for a sum of Rs.15,000/- to the
second defendant and that he was in possession and enjoyment of the said portion
of the property.
11. Per Contra, the learned counsel appearing for the respondent /
plaintiff drew the attention of this Court to the evidence of the first
appellant, who was examined as D.W.1 and the findings of the first appellate
court based on the evidence. The first appellant as D.W.1 has deposed that
originally the property bearing Door No.72, including the suit property,
originally belonged to one Kalamegam Pillai and his brothers Narayanan and
Chellamuthu. The legal heirs of Narayanan Pillai sold their 1/3rd share under
the sale deed, Ex.B2, to Parvathi Ammal, similarly, Chellamuthu Pillai sold his
1/3rd share to Parvathi Ammal, wife of Kalamegam Pillai under Ex.B4. After the
sale, neither Narayanan Pillai, nor Chellamuthu Pillai or their legal heirs had
any right in the property.
12. According to the first appellant, her husband late Thirugnanasambandam
was the adopted son of Kalamegam and Parvathiammal. After the demise of
Kalamegam, Parvathiammal died leaving her adopted son Thirugnanasambandam and he
died leaving the first appellant as his legal heir. But in the cross
examination, the first appellant has admitted that except Ex.B9, there is no
other document to show that her husband was the adopted son of Kalamegam Pillai
and admittedly, Ex.B9 is the printed marriage invitation of the first appellant
and her husband Thirugnanasambandam.
13. The first appellate court has given a finding, that Ex.B9, being a
printed invitation is not sufficient to prove the alleged adoption of
Thirugnanasambandam, husband of the first appellant by Kalamegam Pillai. The
first appellant has further admitted that in Ex.B2, description of the property,
has been stated as west of the temple house and north of common pathway and that
similar averments are available in Ex.B4 while describing the four boundaries
stated in the documents, it has been admitted that in the suit building, there
is a room for worship f family deity. The appellant / defendant has admitted
that there is no document to establish the adoption of Thirugnanasambandam by
Kalamegam pillai.
14. Ex.B1, dated 23.06.1949 is the mortgage deed executed by Narayanan
Pillai in favour of one Rangasamy Naidu. Ex.A2 is the copy of the sale deed
executed by Meenakshi Ammal and her daughter in favour of Pavrathi Ammal.
Similarly, under Ex.A3, Chellamuthu Pillai had executed a mortgage deed in
favour of Parvathi Ammal and then under Ex.A4, dated 03.11.1955, a sale deed was
executed by Chellamuthu Pillai in favour of Parvathi Ammal. Ex.B5 is the copy of
the sale deed executed by the first defendant in favour of the second defendant.
Ex.B6 is an unregistered agreement said to have been entered into between
Parvathi Ammal and the first appellant herein on the one side and the second
appellant on the other side in respect of a common wall, but, no one has
attested this un registered document. In order to prove her possession, the
first appellant has produced the voters list relating to the legislative
assembly election of 1988 and the electric service connection obtained in the
name of Kalamegam Pillai and also the property tax receipts, paid in the name
of Kalamegam Pillai and other documents as Exs.B7 to B41. The original of Ex.B5
has been marked as Ex.B43.
15. As per the findings of the first appellate court, it has been
established by the respondent / plaintiff that there was pathinettampadi
karupansamy deity, the big sickle, fixed to the earth, small sickle,
Dhandayudham, Chellayee Amman, Veerapadra Swamy and other deities / other
articles and materials which are used for the workship of the deity, were found
in the temple room and that the Advocate Commissioner, who inspected the
property has stated in his report, Ex.C1 that he found pathinettampadi deity, a
big sickle of the deity fixed to the earth and another small sickle, placed near
the deity with Dhandayudham and other materials for worship. As per the
Commissioners Report, there was a framed swamy photo, with the description,
which shows that it was presented by one Sundaramoorthy on behalf of
Sundararajan, was found at the ABCD portion of the temple house. The advocate
commissioner has found that there were other deities kept in the temple room for
worship. In the said room, the Commissioner had found a tube light, where in he
noticed the words found on the tube light, wherein he noticed that the words
found on the tube light as “presented by Viswanathan”. The Commissioner has
also stated that in the said room, he could see the footwear of the deity,
anglet, bangles and the dresses used for decorating the deity, which were kept
in a box and that on the eastern hall, he found a small sickle and a big sickle
fixed to the earth and it was informed that it was Samayanasamy deity,
worshipped by them. In the said hall, it is informed that Kaliammal Deity was
worshipped long back and he found symptoms of nails on the wall and sandals and
kumkum dots. In another tube light, the Commissioner had found the words that
Sekar alias Neelamegam presented the same.
16. Ex.A5 is a transcribed, certified copy of a document, which was
originally inscribed in palm leaves long back as per the old tradition. The
same has been certified as true copy, by one S.Sathiah, Special Tahsildar,
Natham settlement survey, Manamadurai.
17. The first appellant as D.W.1 has admitted in her cross examination
that the clothings and other materials found in wooden box were meant for the
deity, but subsequently, the same were not used for the deities. According to
the respondent / plaintiff, pathinettampadi karupansamy is the family deity of
the respondent / plaintiff and his family members and his relatives have been
the worshipers of the deity and the deities stated by him, were found by the
Advocate Commissioner, while inspecting the suit property.
18. The first appellate court has found that there is no other way to
‘ABCD’ portion, where the deity was found by the Commissioner, as shown in
Ex.A1, except the EF entrance. The same is not in dispute. As per the
Commissioners Report Ex.C1 and Plan Ex.C2, the physical features found therein
inclusive of pathinettampadi karupansamy, big sickle fixed to the ground,
Dhandayudham, small sickle and other items are normally used, for worshipping
karupansamy as family deity, by certain group of families.
19. As found by the first appellate court, the physical features of the
worshipping room or temple house would show that it could have been used by
group of persons, as family deity who had common faith in worshipping the deity.
It cannot be acceptable that the first appellant alone was worshipping the
temple and before that Kalamegam Pillai and his two brothers, namely Narayanan
Pillai and Chellamuthu Pillai were worshipping and that they relinquished their
right to worship the deity. The first appellate court has also considered the
oral and documentary evidence adduced by both sides and arrived at a decision
that it was a private temple used by group of persons of various families,
having common faith and worship. Though the first appellant had produced various
documents said to have been executed by Narayanan Pillai, Meenakshi Ammal,
Chellamuthu Pillai, Parvathi Ammal and others, from her custody, it is seen that
neither the first appellant, nor her husband Thirugnanasambandam had been
direct legal heir of Kalamegam Pillai. According to the first appellant, her
husband was adopted by Kalamegam Pillai and Parvathi Ammal. She has also
admitted that for the alleged adoption, except the marriage invitation, Ex.B9,
there is no other document available. In such circumstances, considering the
Commissioner’s Report and Plan with reference to Ex.A5, certified copy of the
document and the evidence of the witnesses, the first appellate court has held
that ‘ABCD’ portion is a private temple / worshiping place, for which the
respondent / plaintiff and the other similar worshippers had the right of
worship, as their family deity by using the EF entrance, as stated in the
plaint.
20. The first appellate court has held that the plaintiff documents Exs.A1
to A18 corroborate the evidence of the witnesses examined on the side of the
respondent/plaintiff. In Ex.A3, certified copy of the document, dated
09.01.1933, relating to the adjacent property and the property therein is
described as the property on the north of Rangasamy Pillai’s temple house.
Similarly, in the document Ex.A4, dated 23.08.1949, it has been clearly stated
that the property described therein was on the north of Kalamegam Pillai vagaira
temple house and the house site of one Sundararajan. It is not the case of the
appellant that the property stated in Ex.A3 as Ramasamy Pillai temple house in
the document, dated 09.01.1933, said Kalamegam Pillai vagaira temple house in
Ex.A4, dated 23.08.1949 are some other properties and not the suit property. The
original of Exs.A3 and A4 were ancient registered documents, as stated by the
learned counsel for the respondent / plaintiff, wherein the suit property is
stated as northern boundary and stated as temple-house belonging to Rangasamy
Pillai vagaira, in Ex.A3 and Kalamegam Pillai vagaira temple house in Ex.A4.
Therefore, as found by the court below, the temple house could not be the sole
property of the first appellant or Parvathi Ammal, wife of Kalamegam Pillai
alone. The normal meaning of the term ‘Vagaira’ is ‘group of families’ having
blood relationship, or community of people, following certain traditional
customs and usages.
21. Therefore, I am of the considered view that the lower appellate court
considering the evidence in depth has held that the suit property has been the
worshipping family deity of Kalamegam Pillai and his closely related community
people, who worship Karuppanasamy as family deity. It is not in dispute that the
respondent / plaintiff, namely Krishnan son of Manickam Pillai belonged to the
same ‘pillai’ community as Kalamegapillai and Ramasamy Pillai.
22. P.W.2, Sundararaja Pillai has deposed that the first appellants
husband Thirugnanasambandam, was his elder sister’s son, who was not adopted by
Kalamegam Pillai and that he knew Kalamegam and the suit property. His
residential house was also behind the suit temple-house and as such he knew the
facts. According to him, the suit temple was used for worshipping the family
deity and they used to go to the deity through the ‘EF’ suit entrance. P.W.3 has
also stated that the deity in the temple-house, being worshipped by the close
relatives of Kalamegam Pillai, and the same was not the exclusive property of
Kalamegam Pillai or any other person. P.W.2 has deposed that he is the brother
of the respondent / plaintiff Krishnan and also related to the first appellant /
defendant. According to him, he is related to the appellant / defendant as
uncle and has categorically deposed that the suit temple house was used for
worshipping their family deity of pathinettampadi karupansamy and other idols.
23. The oral evidence supported by other evidence and the physical
features noted by the Advocate Commissioner would cumulatively establish that
the first appellate court has given its finding based on the available evidence
and therefore, it cannot be said that the first appellate court has not
considered the documents Ex.B1 to B43, while recording its finding, and
therefore, I am of the view that the finding of the court below is not perverse,
since the same is based on the evidence available on record.
24. Therefore, I am of the considered view that the first appellate court
has properly gone into the evidence at length and as there is no perverse
finding, in the light of the decision of the Honourable Supreme Court of India
reported in 2001 (5) SCC 705 (Deena Nath v. Pooran Lal), this court cannot
interfere with the findings in the second Appeal as per Section 100 of the Code
of Civil Procedure and hence, the Second Appeal fails.
25. In the result confirming the Judgment and Decree passed by the first
appellate court, this Second Appeal is dismissed.
tsvn
To
1. The Subordinate Judge
Sivaganga.
2. The District Munsif Court
Sivaganga.