IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.06.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A. No.1445 of 1992 and CMP No.14361 of 2002 Annamalai ... Appellant Vs. 1.Govindan (died) 2.Thillaiammal 3.Natarajan 4.Vaidinathan 5.Raju Naidu (died) 6.Selvaraj (died) 7.Sekar 8.Ramadoss (died) 9.G.Rathiambal 10.R.Rajeswari Ammal 11.Chandru 12.Mohan 13.Vasanthi 14.Ganesan 15.R.Karthick 16.Kanagavel ... Respondents (R9, R10 to R12, R13 and R14, R15 and R16 are brought on record as L.Rs. of the deceased R1, R5, R6 and R8 respectively vide order of this Court dated 20.06.2008 in C.M.P.Nos.13782 to 13784/02, 13785 to 13787/02, 13788 to 13790/02 and 13791/02 respectively.) Prayer: Appeal filed under Section of 100 of C.P.C. against the Judgment and Decree dated 26.6.1991 made in A.S.No.79 of 1991 on the file of the Principal Subordinate Judge, Cuddalore confirming the Judgment and Decree dated 12.10.1990 made in O.S.No.1000 of 1988 on the file of the Additional District Munsif, Cuddalore. For Appellant : Mr.J.Ramakrishnan For Respondents :Mrs.AL.Gandhimathi for RR2 to 4,7,9 to 11, 13 and 14 No Appearance for RR12,15 & 16 RR1,5,6 & 8 - Died J U D G M E N T
The Appellant/Hereditary Trustee of Plaintiff’s Temple has filed this second appeal against the Judgment and Decree dated 26.06.1991 in A.S.No.79 of 1981 passed by the Learned Principal Sub Judge, Cuddalore.
2.The Learned First Appellate Authority viz., the Principal Sub Judge, Cuddalore in the Judgment in A.S.No.79 of 1991 dated 26.06.1991 has among other things observed that ‘the Appellant/Hereditary Trustee has failed to prove that the suit property belonged to the Plaintiff’s Temple and further, the Plaintiff Temple also failed to prove that the Defendants have default in regard to the payment of rent and added further, it has held that the Defendants have acquired adverse possession by virtue of long enjoyment in the suit property and also has come to the conclusion that the suit is barred by limitation and as such, the Plaintiff/Temple is not entitled to get the relief of recovery of possession and mesne profits and ultimately dismissed the appeal with costs.’
3. The trial Court has framed six issues for trial. On behalf of the Appellant/Plaintiff, witness P.W1 has been examined and Exs.A1 to A22 have been marked. On the side of the Defendants, D.Ws.1 to 7 have been examined and Exs.B1 to B54 have been marked. Also, the Commissioner’s Report and Plan have been marked as Ex.C1 and Ex.C2.
4. On an appreciation of oral and documentary evidence available on record, the trial Court has come to the conclusion that the Appellant/Plaintiff has failed to prove that the suit property belonged to the Plaintiff’s Temple and that the Defendants have acquired Adverse possession pursuant to their long enjoyment and that the suit is barred by Limitation and consequently, dismissed the suit without costs.
5. Being dissatisfied with the Judgment passed by the Learned First Appellate Authority viz., the Principal Judge, Cuddalore in A.s.No.79 of 1991 dated 26.06.1991, the Appellant/Hereditary Trustee of the Plaintiff’s Temple has filed the present second Appeal before this Court.
6. At the time of admission of the second appeal, this Court has framed the following substantial question of law:
Whether the Judgments of the Courts below are vitiated by their failure to consider the entire evidence on record and apply the correct principles of Law?
7.According to the Learned counsel for the Appellant/Plaintiff, the First Appellate Authority has not taken into account of Ex.A5 Certified copy of the Town Survey Field Register which clearly proves that the suit property in T.S.No.1665 belong to the Plaintiff’s Temple and the contra finding is an erroneous one and further more, Ex.A3 the Certified copy of the Judgment dated 03.08.1989 in O.S.No.733 of 1986 and Ex.A4 the certified copy of the Meeting Proceedings of the Temple go to prove clearly that the suit filed by the Plaintiff’s Temple is maintainable in Law, but this aspect of the matter has not been adverted to by the First Appellate Authority in the Judgment in A.S. No.76/91 dated 26.06.1991.
8. Advancing his arguments, the Learned counsel for the Appellant/Plaintiff submits that the First Appellate Authority has not taken into account of Ex.B52 Settlement Deed dated 03.09.1965 executed by Veerappa Padaiyachi in favour of Anandhayee Ammal which proves the title of the suit property in favour of the Plaintiff’s Temple. That apart, the present Appellant is the second Plaintiff in O.S.No.733 of 1986 on the file of the District Munsif Court, Cuddalore wherein the suit has been filed by the Temple to evict one Devaraj from the property belonging to the Temple and this vital aspect of the matter proves not only the title of the property of the Temple but also proves the competency of the Appellant to file the present suit as Hereditary Trustee. It is the further contention on the side of the Appellant that if he establishes that he is the Hereditary Trustee then he can still maintain the suit as an worshipper and retain the possession of the property by filing a suit on behalf of the Temple and as a matter of fact, Ex.A3 and Ex.A4 prove convincingly that the Appellant is a Hereditary Trustee of the suit Temple and also, in the Judgment in O.S.No.300 of 1990 dated 13.03.1992 passed by the Sub Court, Cuddalore, the Appellant/Plaintiff has been held to be the Hereditary Trustee of the suit Temple.
9. Lastly, the Learned counsel for the Appellant submits that as per Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, unless a person in possession is able to prove the factum of Adverse possession even before 30.09.1951 he will not be in a position to claim the relief of adverse possession but this aspect of the matter has not been appreciated by the First Appellate Authority and indeed, there is no question of Appellant/Plaintiff’s Temple title being lost by the Law of Limitation and therefore prays for allowing the Appeal in furtherance of substantial cause of justice.
10. Per contra, the Learned counsel for the Respondents supports the concurrent findings rendered by both the Courts below and submits that the suit property belongs to the Defendants 1 to 7 by virtue of their long possession of 40 years and more and in fact, the Defendants 1 to 7 have put up construction and that the rent stated in the plaint in respect of the Defendants 1 to 7 are false.
11. Further also, never before the Appellant/Plaintiff or anybody else demanded rent from the Defendants and as such, the conclusions arrived at by both the Courts below that the Appellant/Plaintiff has not proved the fact that the suit property belongs to the Plaintiff’s Temple and further that the Defendants have acquired adverse possession by long enjoyment need not be interfered with by this Court.
12. The Learned counsel for the Appellant cites the decision of the Court ARUNACHALA UDAYAR AND ANOTHER V. ELAYAPERUMAL, (2009) 2 MLJ 153, wherein it is held that ‘when the findings of the Court on facts are vitiated by non-consideration of relevant evidence, the High Court is not precluded from interfering with concurrent findings.” Also, in the abovesaid Judgment, it is
observed as follows:
“When subsequent to filing of the suit for permanent injunction, there is encroachment by the defendant, the lower Appellate Court was not justified in dismissing the suit on the ground that Plaintiffs have not amended the plaint seeking for mandatory injunction.”
He also relies on the decision of this Court CHANDRASEKHARAN PILLAI AND OTHERS V. MUTHU BOGI (DECD.) AND OTHERS, 1969 (1) MLJ 643, wherein it is held thus:
“In such a suit the relief of possession could also be granted in favour of the worshippers as even a worshipper of a Temple is entitled to take steps to regain possession of the trust property which is in the possession of a trespasser, if the lawful trustee has not taken any steps in that regard. But the decree for possession granted in favour of such worshippers is neither in their individual rights nor in their capacity as representing any particular group or community to the exclusion of others having equal rights. The decree could be in their favour purely as worshippers and it will be open to the lawful trustee to take possession from them at any time.”
He draws the attention of this Court to the decision SUBRAMANIAM AND OTHERS V. SRI DEVANATHASWAMI DEVASTHANAM, REP. BY ITS EXECUTIVE OFFICER SRI S. VEERAPPAN AND ANOTHER, (2007) 3 MLJ 85 at page 86, wherein it is held as follows:
“Where the suit property belongs to Religious Institution i.e. Temple, as per the principle of “Parent Patriarch,” Court is the custodian of the idol property and disputed land belongs to idol and the plea of adverse possession is not sustainable since Temple land is protected under Section 109 of Tamil Nadu Hindu Religious and Charitable Endowments Act.”
He seeks in aid to the decision of this Court RANJITKUMAR V GOPAL AND ANOTHER, (2003) 1 MLJ 573, wherein it is held hereunder:
“That the revision petitioner has been set up by his father, the second respondent herein to stall the execution of the decree obtained by the first respondent against the second respondent. The order cannot be stated to be in error of jurisdiction or unjust since the second respondent had got a property for himself thanks to the large heartedness of the first respondent and his sisters who with a view to fulfil the wishes of their mother settled the other property in favour of the second respondent. He having secured another property, it will be the height of injustice if we are to countenance his claim to get at the suit property through his son, the revision petitioner.”
DISCUSSION AND FINDINGS:
13. The Appellant/Hereditary Trustee of the Plaintiff’s Temple in the plaint has averred that the schedule properties being a portion of the vacant site in T.S.No.1665within the Municipal limits of Cuddalore belongs to Sri Angalamman Koil, Manjakuppam and the entire site adjoining the Temple and it is situated in T.S.No.1666. Added further, he is the Hereditary Trustee of the Temple and that the Defendants have entered upon the property and put up the huts. Further, Defendants 1 to 7 have been using the property for residential purpose while the 8th Defendant is running a shop in animal feeds.
14. Further, it is averred that when the Appellant/Plaintiff became the Trustee of the Temple in the year 1980 by hereditary succession and after taking over the Management, he apprised the Defendants about the rights of the Temple and their liability to pay rent. The Defendants undertook to pay the rents to the Plaintiffs at different rates, the variations depending on the respective areas of the occupation from 01.12.1983. The first defendant agreed to pay Rs.50/-, the Second Defendant Rs.30/-, the third Defendant Rs.30/-, the fourth defendant Rs.30/-, the fifth Defendant Rs.50/-, the sixth Defendant Rs.20/-, the seventh Defendant Rs.25/- and the eighth Defendant Rs.50/-.
15. The case of the Appellant/Plaintiff is that the Defendants contrary to their undertakings have failed to pay the rent to the Appellant/Plaintiff which necessitated the issuance of notice to some of the Defendants and except the Eighth Defendant, the others have replied by denying title of the Temple to the suit property and that there can be no adverse possession against the property belonging to the Temple which is in the nature of a public trust.
16. The Appellant/Plaintiff in the suit has prayed for a Decree in respect of recovery of vacant possession of the properties in the respective possession of the Defendants.
17. The Defendants 1 to 7 in their Written Statement have pleaded that the Appellant/Plaintiff is not the Hereditary Trustee and as a matter of fact, there is no Hereditary Trustee or succession at all and that they have raised construction living there for the past 40 years and more. Never before, the Plaintiff or anyone else demanded rent from them. The Defendants 1 to 7 projected a plea that the rent mentioned in the plaint for them are all false and the suit properties belong to them and since each one of the Defendants has a separate title and possession of the properties in question, the suit is barred for misjoinder of parties.
18. The 8th Defendant in his Written Statement has inter alia stated that he has raised construction and has been carrying on business for the past 45 years and more and never before, the Plaintiff or anybody else demanded rent from them and further, he is not a tenant at any time under the Plaintiff or anyone else.
19. It is useful to refer to the evidence of the Hereditary Trustee of the Plaintiff’s Temple who has been examined before the trial Court as P.W.1. P.W.1 in his evidence has deposed that the suit property belonged to Angalamman Temple in S.Nos.1665 and 1666 and that he is the trustee of the Plaintiff’s Temple and prior to the Defendants occupation, the suit property is remained as a vacant site and that the Defendants 1 to 7 have constructed presently residential house and the 8th Defendant has constructed one shop and after his father’s death in the year 1980, he has taken over administration of the Temple and informed the 8th Defendant in this regard. P.W1 in his further evidence has deposed that he has mentioned the Defendant’s occupation of the place approximately and further, he has mentioned about the rent amount and when he demanded the rent from them, the defendants refused to pay the same and he is paying the ground rent to Municipality.
20. Continuing further, it is the evidence of P.W1 that Ex.A1 is the Receipt dated 12.09.1986 for Rs.13.50 remitted by him as Trustee to the Hindu Religious Endowment Board and again, he has remitted the same amount Ex.A2 Receipt dated 29.09.1986 and as against one Devaraj, he filed a suit O.S.No.133 of 1984 in his capacity as a Trustee and in the said suit, it is held that the property belonged to the Temple and the Judgment copy is Ex.A3 and the Minutes of the Temple is marked as Ex.A4.
21. That apart, it is the evidence of P.W1 that the Defendants are residing in T.S.No.1665 and one Defendant is residing in T.S.No.1666 and Ex.A5 is the Field Map Extract obtained from the Municipality to show that the suit property belonged to the Temple and the certified copy of the Field Map is Ex.A6 and one Kothandabani Pillai has filed a suit O.S.no.175 of 1965 against them and the said suit ended in a compromise and the compromise Decree is marked as Ex.A7 and it is mentioned that Kothandabani Pillai and Govindasamy Chettiyar are remained as Temple Trustees and later, their sons will have to serve as Trustees.
22. It is not out of place for this Court to point out that PW1 in his evidence has stated that the Defendants have entered in the property in the year 1972 and the present huts have been put up 10 years before and since the income of the Temple has been affected, he has filed the present suit for recovery of possession.
23. PW1 (in his cross-examination) has deposed that he has filed the suit in the capacity of Hereditary Trustee and that he is not claiming right in other aspects and the suit property has been inspected by the Court Commissioner and at that time, he has been present and that he has seen the Commissioner’s Report.
24. Proceeding further, PW1 in his cross-examination has stated that some of the Defendants are residing and some of them are running the shops and he does not know when the Defendants have constructed their houses and they have constructed them during his father’s life time and Kothandabani is alive and when he remained as a Trustee and during his Trusteeship, the houses have been there and that his father expired in the year 1980.
25. PW1 in his evidence has proceeded to state that the Defendants have constructed cement buildings and one Natarajan has put up a superstructure made of asbestos.
26. PW1 in his cross-examination has categorically admitted that he filed a petition before HR and CE Board claiming Hereditary Trusteeship in respect of the suit Temple and that the same has been dismissed and also, failed before the HR and CE Commissioner in this regard and he has not filed the plaint of Sub Court and that the Defendants have paid rent during his father’s time for which there are no accounts and in Ex.A5, it is mentioned as ‘Natham’.
27. It is the evidence of DW1 (First Defendant) that he has constructed a house in the suit property which is 50 years old and the House Tax Receipts paid by him is Exs.B1 to B8 and that he has service connection to his house and the property belongs to him and it is not correct to state that there has been a oral and rental Agreement between the Trustee and him in the year 1983 and till date, he has not paid rent to anyone and that PW1 has no right to file the present suit.
28. DW1 (the First Defendant) in his cross-examination has stated that PW1 is the Temple Priest and that the Receipts are after the year 1983 and before that, no House Tax Receipts have been collected and that he has not obtained the Record to find out as to who is the owner of the suit property vacant site and that he has not paid tax for the vacant site and there is no record for the vacant site and there is no record to show his 40 years enjoyment and he has also not filed document to show the right to Gokilammal and that she is not alive.
29. DW2 (the Second Defendant) in her evidence has stated that she has constructed a stone house in the suit property and the superstructure has been constructed 40 years before and that she has spent a sum of Rs.25,000/- and the house tax paid are Exs.B9 and B11 in the name of her husband and Ex.B12 is the application given to the Municipality for reducing the tax.
30. DW2 in her cross-examination has specifically stated that they have come to know before 25 years that the suit property is a poramboke one and till date, the suit property is a poramboke and that the Appellant(PW1) conducts poojas and festival and they are residing for 60 years.
31. It is the evidence of DW3 (the third Defendant) that he has constructed a stone house and put up sheet in the suit property and that he has not paid the rent and the suit property belongs to them and it is incorrect to state that the suit property belongs to the Temple and further, it is incorrect to state that the Plaintiff is the Hereditary Trustee.
32. It is the evidence of DW4 (the Fourth Defendant) that he has put up a stone wall and a hut in the suit property and that the suit property is a poramboke and that he does not belong to the Plaintiff’s Temple and that he has not paid the rent and it is incorrect to state that the Plaintiff is the Hereditary Trustee of the suit Temple.
33. It is the evidence of DW5 (the Fifth Defendant) that he has constructed a house and put up superstructure which is 45 years old and that he has spent a sum of Rs.12,000/- and that the suit property belongs to them and it is incorrect to state that the suit property belongs to the Temple and from the year 1983, there is no Rental Agreement and it is incorrect to state that the Plaintiff is the Hereditary Trustee of the Temple.
34. DW6 (the Sixth Defendant) in his evidence has stated that he has constructed a hut house in the suit property and that he has renovated and constructed the same and that the suit site belongs to Ananthayee Ammal and Ex.B52 is the Settlement Deed dated 05.09.1965 executed by Veerappa Padayachi in favour of Anandhayeeammal and in the suit O.S.170/1965, Ananthayeeammal is the 9th Defendant and that the suit has been dismissed against the 9th Defendant and it is incorrect to state that there has been a Rental Agreement and they are agreed to pay rent also, it is incorrect to state the Plaintiff is the Trustee.
35. DW7 (the Seventh Defendant) in his evidence has stated that right from his birth, he is residing in the suit place and he has constructed a stone house using cement and that he is paying the house tax Exs.B54, B55 and before Palani, one Ponnusamy has resided and Ponnusamy is figured as the Seventh Defendant in O.S.No.170/1965 and the said suit has been dismissed and the suit property belongs to him.
36. It is a well accepted principle of Law that in a Civil Suit a Plaintiff has to prove his case on the basis of pleadings projected. In the instant case, the Appellant/Plaintiff though claims to be the Hereditary Trustee and come out with a case that the Defendants have agreed to pay rents depending on the respective areas and occupation from 01.12.1983 to him like Rs.50/-, 30/-, 50/- etc., he has admitted in evidence that PW1 there is no record to show for the collection of rent. When the Defendants have denied the quantum of rent and the Rental Agreement and when they claim that they are the owners of the houses/superstructures put up by them and they have been in possession for 40 years or more. It is clear that they have denied the title of the Plaintiff. Therefore, the proper course for the Appellant/Plaintiff is that the suit should have been filed for the relief of Declaration that the Plaintiff/Temple is the owner of the suit property. However, a scrutiny of the plaint reveals that the Appellant/Plaintiff has filed the suit only for recovery of possession. In short, the Appellant/Plaintiff has not proved the tenancy of the Defendants with the Temple, in the considered opinion of this Court. In the absence of declaratory relief as to the Temple being preferred for by the Appellant/Plaintiff, in regard to the ownership of the suit property, the Appellant/Plaintiff cannot seek recovery of possession from the Defendants.
37. In regard to the plea of the Appellant that even as a Worshipper he is entitled to file a suit on behalf of the Temple, this Court points out that the Plaintiff in the plaint has not pleaded that he has filed the suit in the capacity of a Worshipper and therefore, the Appellant’s plea in this regard is not accepted by this Court.
38. Coming to the plea of the Appellant that Ex.A5, the certified copy of the Cuddalore Town Survey Field Register comes to the rescue of the Appellant/Plaintiff’s Temple wherein it is mentioned as Angalamman Temple, in Survey Field 1665, it is to be pointed out that the same will not confer title and it will not be a proof of title of the Temple in respect of the suit property. Significantly, in Ex.A5, it is mentioned as Private Natham and in the Remarks Column 19, it is mentioned as Thatched House Natham. No one from the Revenue Authority has been examined as a witness on behalf of the Appellant/Plaintiff to prove that S.F.No.1665 belongs to the Plaintiff’s Temple absolutely. Equally, is not proved to the satisfaction of this Court on behalf of the Appellant/Plaintiff that the suit property belongs to the Temple absolutely. Only if the Appellant/Plaintiff establishes that the Temple is the owner of the suit property, the plea of Adverse possession pleaded by the Defendants in the suit cannot be sustained as per Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. In the absence of proof that the Temple is the owner of the suit property, the Respondents/Defendants are justified in taking the plea of Adverse possession.
39. Merely because in Ex.B52 Settlement Deed dated 03.09.1965 executed by Veerappa Padayachi in favour of Anandayee Ammal a mention is made that the land in T.S.No.1665 belongs to Angalamman Temple that itself will not prove the ownership of the plaintiff’s temple in the suit property, as opined by this Court. Also, when the Respondents/Defendants have constructed brick house, staircase house, hut house etc., and residing there for long number of years then filing a single suit against them by the Appellant/Plaintiff is not legally a proper and valid one in the eye of Law.
40. Dealing with the contention of the Learned counsel for the Appellant that in O.S.No.300 of 1990 filed by the Appellant (PW1) on the file of the Sub Judge, Cuddalore wherein he has been declared as a Hereditary Trustee along with the First Defendant (Deceased Kothandabani) therein and since the First Defendant has expired, the Fifth Defendant one Thillai Govindan has been declared to be the Hereditary Trustee along with the Appellant, this Court points out that the present suit O.S.No.1000 of 1988 has been filed before the trial Court only in the name of the Appellant as Trustee of the Plaintiff’s Temple and the Fifth Defendant in O.S.300/1990 Thillai Govindan has not joined with the Appellant to file the said suit and therefore, this Court is of the considered view that the suit O.S.No.1000 of 1988 filed by the Appellant/Plaintiff is not maintainable for non joinder of necessary party. Further, it transpires from Ex.C1 Commissioner’s Report that the Defendants 1 to 7 have put up cement constructions and huts thereon and in fact there are 8 schedule of properties of Defendants 1 to 7 and they are denoted as A, B, C, D, E, F, G and H in Ex.C2 Plan with measurements and physical features. The Commissioner has also stated in his Report that all the schedule of properties mentioned in the Plan are having old roofs with old cement plasterings and old cement floorings and each schedule property is having one separate hand bore pump.
41. Though the Petitioner/Appellant has filed CMP No.14361 of 2002 under Or.41 R.27 of Civil Procedure Code praying permission of this Court to receive the certified copy of Judgment and Decree in O.S.No.300/1990 as Additional documents, inasmuch as the other Trustee, the Fifth Defendant therein has not joined along with the present Appellant/Plaintiff to file suit in O.S.No.1000 of 1988, the suit is not maintainable for non joinder of necessary party and in any event, since the Appellant has not sought a declaratory relief in regard to the Appellant’s ownership of the suit property, these two documents will not improve or heighten the case of the Plaintiff and in that view of the matter, this Court is not inclined to allow this miscellaneous petition to receive the additional documents and accordingly, the same is dismissed.
42. On a careful consideration of the facts and circumstances of the case in a cumulative fashion and in the light of the discussions mentioned supra, this Court comes to an inevitable conclusion that the Appellant/Plaintiff ought to have filed the suit for declaration that the Plaintiff/Temple is the owner of the suit property and that a suit filed for the relief of recovery of possession alone is not maintainable when the Defendants have denied the ownership/title of the Plaintiff’s Temple and moreover, the Appellant/Plaintiff has not pleaded anywhere in the plaint that he has filed a suit as a Worshipper and in fact, the Appellant/Plaintiff has not proved the factum of tenancy between the parties and further, since the Appellant/Plaintiff has not filed the present suit O.S.1000/1988 along with the Fifth Defendant viz., son of the First Defendant in O.S.300/1990, the suit filed is not per se maintainable and viewed in that perspective, this Court comes to an inescapable conclusion that both the Courts have considered the entire evidence on record and applied the correct principles and consequently, the substantial question of law is answered against the Appellant/Plaintiff.
43. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. Consequently, the Judgment and
Decree passed by both the Courts below in A.S.No.79 of 1991 dated 26.6.1991 and O.S.No.1000 of 1988 dated 12.10.1990 are confirmed by this Court for the reasons assigned in the Second Appeal. The connected C.M.P.No.14361 of 2002 is also dismissed.
1. The Principal Sub Judge,
2. The Additional District Munsif,