IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10/09/2005
CORAM
THE HON'BLE MR.JUSTICE M.CHOCKALINGAM
S.A.NO.252 OF 1994
1.Gopalakrishnan
2.B.Srinivasan .. Appellants
-Vs-
Balasubramaniam .. Respondent
This second appeal is preferred under Section 100 of CPC against the
judgment and decree dated 28.7.1993 passed in AS No.193 of 1991 on the file of
the learned Additional District Judge, Salem against the judgment and decree
dated 12.10.1988 passed in OS No.1421 of 1986 on the file of the learned
District Munsif at Namakkal.
!For Appellants : Mr.J.R.K.Bhavanandam
^For Respondent : Mr.Subramanian
for Mr.K.Jayaram
:JUDGMENT
Aggrieved over the judgment of the learned I Additional District
Judge, Salem made in AS No.193 of 1991, wherein the judgment of the trial
court, namely the Principal District Munsif, Namakkal, made in OS No.1421 of
1986 was affirmed, the defendants have preferred this second appeal.
2.It was a suit filed by the respondent/plaintiff, seeking declaration
of title in respect of landed property shown in the ‘A’ schedule and also
declaration in respect of + share in the pooja right of Varadarajaperumal
temple shown as ‘B’ schedule and consequently, for partition. The plaintiff’s
case as could be seen from the pleadings can be stated shortly thus:
The plaint described ‘A’ schedule property originally belonged to one
Appasamy Iyer @ Eswara Iyer and in the year 1919, he executed a Will in favour
of plaintiff’s father Padmanaba Iyer and his wife Maragadammal and following
the same, on the death of Eswara Iyer, the property came to the hands of
Padmanaba Iyer and his wife Maragadammal. Since Padmanaba Iyer had no issues
through Maragadammal, he married Dhanalakshmi in the year 1944 as the second
wife. Maragadammal died intestate. Thus, the property came to the hands of
Padmanaba Iyer. In the year 1953, the plaintiff was born to Padmanaba Iyer
and his second wife Dhanalakshmi and on the death of Padmanaba Iyer, the
property came to the hands of his wife Dhanalakshmi. The lands originally
belonged to Temple. Since the property could not be cultivated and in view of
the fact that the plaintiff was a child, the immovable properties, which were
given to the plaintiff’s family for the service rendered to temple and the +
share in the pooja ri ght, which was being enjoyed by the plaintiff’s family,
were entrusted to the defendants for being taken care of till the plaintiff’s
mother returns to the village with the plaintiff. Then, the plaintiff’s
mother took the plaintiff to outside the place and on return, there was a
demand and exchange of notices and on refusal, the plaintiff filed a suit for
declaration asked for and stated above.
3.The suit was resisted by the defendants stating that the landed
property found in the schedule to the plaint is an Inam land and belonged to
Varadarajaperumal temple, in which neither Easwara Iyer nor anybody, including
the plaintiff, could claim any right, interest or title; that the Will
executed by Easwara Iyer was not valid; that apart from that even as per the
allegation in the plaint, Padmanaba Iyer married Dhanalakshmi during the life
time of his first wife and it was also illegal and patta has also been granted
in favour of the temple, on enquiry and thus, the plaintiff cannot make any
claim over ‘A’ schedule landed properties and equally ‘B’ schedule pooja right
exclusively belonged to the defendants, in which also the plaintiff cannot
claim any right, alleging that it was an ancestral one and under the stated
circumstances, the suit has got to be dismissed.
4.The trial court has framed necessary issues and on trial, the suit
was decreed. The aggrieved defendants have preferred an appeal and on appeal,
the judgment of the trial court was affirmed. Hence, the second appeal at the
instance of the defendants.
5.At the time of admission, the following substantial question of law
was formulated for consideration:
“Whether the suit is barred by limitation?”
6.This Court has heard the learned counsel for the appellants and also
the respondent.
7.The learned counsel for the appellant inter-alia would submit that
‘A’ schedule landed property belonged to Varadarajaperumal temple, in which
the plaintiff cannot make any claim and patta has also been issued in favour
of temple; that the suit was also barred by limitation; that there was
exchange of notices, in which the right of the plaintiff was denied; and that
specific point of time is prescribed in the Limitation law and the plaintiff
should have filed the suit within the time, but he has not done so. Added
further the learned counsel that insofar as ‘B’ schedule pooja right was
concerned, the defendants have been enjoying the same all along, as of right,
in which the plaintiff cannot make any claim. But, without proper
appreciation of both factual and legal positions, the courts below have
granted decree, which has got to be set aside by this Court.
8.Heard the learned counsel for the respondent on the above
contentions.
9.It was a suit filed by the plaintiff, seeking declaration of title
in respect of ‘A’ schedule landed property and 1/2 share in pooja right in
respect of ‘B’ schedule to the plaint. It is not in controversy that the suit
land was originally belonged to Varadarajaperumal temple. It is also not in
controversy that the suit landed properties were under the enjoyment of the
defendants. The specific case of the plaintiff is that the property was
actually given to the father-in-law of Padmanaba Iyer, by name Easwara Iyer,
for the service rendered by him in the said temple and he has been in
enjoyment of the same. In the year 1919, he executed a Will under Ex.A.1 in
favour of Padmanaba Iyer and Maragadammal. It is pertinent to point of that
the defendants never questioned the truth, genuineness or validity of Ex.A.1
Will. But, what were all contended was that the properties belonged to Temple
and Easwara Iyer had no right over the same. Both the courts have pointed out
that there is sufficient evidence available, indicating the enjoyment of same
by Easwara Iyer and on his death, by Padmanaba Iyer and Maragadammal and even
during the life time of Maragadammal, Padmanaba Iyer married Dhanalakshmi,
through whom the plaintiff was born. On the death of Padmanaba Iyer, the
property devolved upon Dhanalakshmi. Evidence has been recorded to the effect
that the said landed properties were handed over by Dhanalakshmi to the
defendants, taking into consideration the fact that the plaintiff was minor
then and that she could not carry on cultivation and apart from that the
plaintiff could not carry on pooja and she went away from the village and on
return, there was exchange of notices.
10.It is pertinent to point out that even in the reply notice, it has
been specifically admitted by the defendants that the property belonged to
Temple. It is also pertinent to point out at this juncture that the
defendants have not produced any material to show that how they got into
possession of the land, except the mere allegations in the written statement
and assertion through witnesses and they did not have any material except the
defence plea that they have been in possession on their own right.
11.In the instant case, the contention put forth by the defendants
that the suit was barred by limitation has got to be stated only for the
purpose of rejection. The possession of the service holder was only
permissive possession and it cannot be adverse to that of true owner and in
the instant case, the plaintiff has not disputed the fact that the property
belonged to Temple, but it has been given to Easwara Iyer and he was in
enjoyment of same and thereafter, by his family and the plaintiff is entitled
to be in possession and to continue the same. The contention put forth by the
learned counsel for the appellants that they were appointed as Trustees by the
H.R. & C.E. in respect of temple and therefore, they could contest the suit
would be of no avail, since there are specific allegations and proof that both
landed properties and the pooja right were handed over by the plaintiff’ s
mother to the defendants. Under the stated circumstances, such a plea cannot
be raised by the defendants at any stretch of imagination. Hence, this Court
is of the considered opinion that all the contentions put forth by the
appellants’ side have been rightly rejected by both the courts below. As
regards the question of limitation, this Court is of the considered opinion
that the suit is not barred by limitation for the reasons stated above.
Hence, the second appeal fails and the same is dismissed. The parties are
directed to bear their costs.
Index : Yes
Internet : Yes
vvk
To
1.I Addl. District Judge, Salem
2.District Munsif, Namakkal