BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 03/11/2008 Coram THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.445 of 1995 & A.S.No.446 of 1995 and M.P.No.1 of 2008 in A.S.No.446 of 1995 A.S.No.445 of 1995 Kakshok @ Thulasi, 1 Bhava Madam by its Madathipathi Trustee T.R.Gopal Doss (Died) Khakchowk @ Thulasi Bhava Madam by its Madathipathi Trustee T.R.G.Mohandoss Ram Jharokha Shanthi Hanuman Koilm, Rameswaram, ... Appellant (2nd appellant brought on record as appellant as per order dt. 22.11.2004 made in CMP.987 & 992 of 2004) vs. 1.Arul Prakasam Boopalarayar, 2.Packiam Ammal 3.P.Sethu Servai 4.Pushpavalli 5.Subramaniam 6.Lakshmi Ammal ... Respondents A.S.No.446 of 1995 #Kakshok @ Thulasi, 1 Bhava Madam by its Madathipathi Trustee T.R.Gopal Doss (Died) Khakchowk @ Thulasi Bhava Madam by its Madathipathi Trustee T.R.G.Mohandoss Ram Jharokha Shanthi Hanuman Koil, Rameswaram, ... Appellant (2nd appellant brought on record as appellant as per order dt. 22.11.2004 made in CMP.987 & 992 of 2004) vs. $1.Subramania Konar, 2.S.V.Madhavan 3.S.V.Murali Manoharan 4.Indirani 5.Munusamy 6.Vijayalakshmi 7.Mageswari 8.Muthulakshmi 9.Eswari ... Respondents Prayer These appeals have been preferred under Section 96 of CPC against the decree and Judgment dated 21.1.1993 in O.S.No.1 of 1991 and O.S.Nos.16 of 1987 respectively on the file of the Court of Subordinate Judge, Ramanathapuram. !For Appellant ... Mr.S.Kadarkarai, Advocate ^For respondent ... Mr.T.M.Hariharan, Advocate -----
:COMMON JUDGMENT
A.S.No.445 of 1995 has been directed against the decree and Judgment in
O.S.No.1 of 1991 on the file of the Court of Subordinate Judge, Ramanathapuram.
A.S.No.446 of 1995 has been directed against the decree and Judgment in
O.S.No.16 of 1987 on the file of the Court of Subordinate Judge, Ramanathapuram.
2.M.P.No.1 of 2008 in A.S.No.446 of 1995 was filed under Order 41 Rule 27
of CPC to receive the additional documents mentioned below:-
1)Certified copy of the settlement deed dated 06.06.2007 executed by one
Nagavalli in favour of the appellant / plainifff.
2)Certified copy of the settlement deed dated 30.05.2007 executed by the
respondents 2 and 3 in favour of the petitioner.
3)Certified copy of the settlement deed dated 30.05.2007 executed by the
respondents 2 and 3 in favour of the petitioner.
4)Certified copy of the settlement deed dated 28.11.2006 executed by the
respondents 2 and 3 in favour of the petitioner.
5)Certified Xerox copy of the Judgment and Decree in O.S.No.149 of 1991
dated 30.04.1996.
6)Certified copy of the Trust Deed dated 12.03.1959.
Out of the above said six documents four documents are subsequent to the filing
of the suit. So even if they are allowed to be received as additional documents
no useful purpose will be served because they are all in no way going to help to
come to a conclusion whether the vendor under Exs.A.19, 20 & 22 viz.,
Kalikrishana Doss, had any right to execute those documents in respect of the
property scheduled to the plaint in favour of D1 to D4. With regard to the
other two documents viz., Trust Deed dated 12.03.1959 and the Judgment in
O.S.No.149 of
1991 dated 30.04.1996 can be dealt with while proceeding with this judgment.
3.The averments in the plaint in O.S.No.16 of 1987 (A.S.No.446 of 1995)
are as follows:-
The plaint schedule properties are trust properties belonging to Sadhus
Trust known as “Sri Sempiradhaya Sathus”. These trusts are managed by Guru
Sizhya Parambara (From Guru to Sishya and so on). According to such practice of
succession Ramakrishna dass father of the plaintiff became the Trustee and come
to the Management of the trust and its properties. He was incharge of a Trust
at Dhanushkodi and also 2 trusts at Rameswaram inclusive of the suit trust.
The present suit is in connection with what is known as “Thulasi Bava Mutt”
otherwise known as “Khakchowk” and also Sri Penchamuga Hanuman situate at Seetha
Theertham in Rameswaram. In the year 1959 Ramakrishna Dass was in full charge
of the trust at Dhanushkodi and put in possession as trustee his younger son
Kali Krishna Dass @ Kalyana Dass in charge of the said trust. At the same time
he put the plaintiff in charge of the Hanuman Temple and Mutt in Parvatham
Village on the principal of Guru Sishya Parambara. The properties are all trust
properties and it is to be managed by the Trustee who is known as Mahanth or
Madathipathi. The Trustee have no power of alienation and the property should
be with the Sishya of the Guru and after him it goes to his Sishya if he is
having one or it will go to the other Sishya of the same Guru. Kali Krishna
Dass @ Kalyana Dass was not married. He died on 11.3.1986 at Rameswaram
hospital. The plaintiff is the other Sishya of the same line of Guru and as
such the plaintiff became entitled to the management of the trust and its
properties. He is also entitled to the management of the trust as per Hindu
Law. The plaintiff is at present in actual possession of the Thulasi Bava
Mutt.Seetha Theertham and Sri Panchamuga Hanuman Temple etc., are all belong to
the trust. The plaintiff was prevented from taking possession of the schedule
mentioned properties belonging to the trust. The plaintiff’s brother who was the
previous trustee viz., Kali Krishna Dass @ Kalyana Dass had created three
documents dated 8th October, 1985, 19th February,1986 and 25th February 1985
respectively. The first document (Sale deed dated 8.10.1985) is in respect of
plaint schedule Item No.1 in favour of the first defendant, the second document
(sale deed dated 19.2.1986) is in respect of plaint schedule Item No.2 in favour
of D2 & D3 and the third document (sale deed dated 25.2.1985) is in respect of
plaint schedule Item No.3 in favour of the third defendant. Previous trustee
died on 11.3.1986 and the present plaintiff has succeeded his Office of
trusteeship. Hence, the suit for recovery of possession of the suit properties
and for mesne profits both future and past.
3(a).The first defendant in his written statement would contend that Kali
Krishna Dass @ Kalyanadass was the adopted son of Jeyaramadass. Till his death
he was leading as a guide and eking his livlihood. The properties sold by Kali
Krishna Dass @ Kalyana Dass are all his properites and only with a bad motive to
grab at the properties from the vendees of the said Kali Krishna Dass the
plaintiff has filed this vexatious suit. The plaint schedule properties do not
belong to any trust and not dedicated by any one to the plaint-trust. There is
no trust as alleged in the plaint and the plaintiff is not the trustee of the
plaint-trust. Kali Krishna Dass died in March-1986. The properties sold by
Kali Krishna Dass to the defendants found in possession and enjoyment of Kali
Krishna Dass for more than 40 to 50 years. The plaintiff has no right or title
in respect of the plaint schedule properties. From the date of sale deed ie.
From 8.10.1995 this defendant is in possession and enjoyment of the properties
sold under the said sale deed. Hence, the suit is liable to be dismissed.
3(b).The defendants 2 & 3 have filed a joint written statement contending
that Kali Krishna Dass @ Kalyana Dass was a guide and from out of the earnings
from the said avocation, he had purchased the properties sold to these
defendants. The plaint schedule properties do not belong to the plaint-trust.
Neither the plaintiff nor his father Ramakrishnadass was appointed as a trustee
of the plaint trust. The properties scheduled to the plaint were never
dedicated to the plaint trust by any one. The averment in the plaint as to the
effect that the plaintiff came as a trustee on the basis of Guru-Sishya
relationship has no bearing at all. These defendants are in possession and
enjoyment of the properties purchaed by them under the sale deed from Kali
Krishna Dass @ Kalyana Dass for more than 30 to 40 years. Before executing the
sale deeds in favour of these defendants, these defendants’ vendor Kali Krishna
Dass was in possession and enjoyment of the same for over 50 to 60 years. The
plaintiff made an attempt to trespass into the properties in possession of these
defendants. There is no trust in the plaint schedule properties and there is no
income derived from out of the suit properties purchased by these defendants
from Kali Krishna Dass. Hence, the suit is liable to be dismissed.
3(c).The fourth defendant died pending suit. The fifth defendant remained
exparte.
3(d).On behalf of the minors D6 to D10 Court guardian has filed the
following written statement:- The minor defendants are not necessary parties to
the suit. The suit is not maintainable as against the minor defendants.
3(e).On the above pleadings the learned trial Judge has framed eight
issues and one additional issue for trial.
4.The averments in the plaint in O.S.No.1 of 1991 (A.S.No.445 of 1995)
runs as follows:-
The plaint schedule properties belong to the plaint trust. On the basis of
Guru Sishya relationship the trust is being administered. So as per the said
arrangement the plaintiff’s father Ramakrishnadass was administering the plaint
trust at Rameswaram and another trust at Dhanushkodi. The plaint trust is also
known as Thulasi Bava Mutt or “Khachowk”. The trustee Ramakrishnadass, father
of the plaintiff, stayed at Rameswaram and also administered the trust by name
Anuman Koil Trust, in the place called Thaniparuvatham. Bachya Anuman temple
and Seetha Theertham also belong to Thulasi Bava mutt. During 1959
Ramakrishnadass came into possession of the said trust and administered the
same, and his son Kali Krishna Dass @ Kalyana Dass was entrusted with the
trusteeship of Thulasi Bava Trust. Subsequently Ramakrishnadass had given in
adoption his son Kali Krishna Dass to one Jeyaram Dass. After the said adoption
Kali Krishna Dass was known as Kalyana Dass. The other son of Ramakrishna Dass
is Mr.T.R.Gopal Dass, the plaintiff herein. T.R.Gopal Dass was the trustee of
Anuman Temple at Thaniparuvatham, Rameswaram. Both the trust were administered
by the trustees known as “Maganth”. After the death of this trustee his Sishya
will become the trustee. After the death of Kali Krishna Dass on 11.3.1986, his
brother T.R.Gopal Dass, the plaintiff herein, became the trustee as the disciple
of his Guru since Kali Krishna Dass. Kali Krishna Dass died without any hires.
To get the possession of some of the properties of the trust, Gopal Dass has
filed O.S.No.16 of 1987 before the District Court, Ramanathapuram. The said suit
is pending. Kalyana Dass had no right or title in respect of the suit
properties to execute the sale deeds. D1, D2, D3, D4, D5 & D6 have purchased
the trust properties from Kalyana Dass under sale deeds dated 13.6.1979 (in
favour of D1), dated 17.12.1980 (in favour of D2) and dated 7.8.1982 in favour
of D3 & D4, dated 2.8.1984 in favour of D5 & D6. The plaintiff requested the
defendants to handover possession of the plaint schedule properties / trust
properties. The defendants even though agreed to handover possession at first,
subsequently at the instance of the defendant in O.S.No.16 of 1987 refused to
handover possession of the plaint schedule properties. Hence, the suit for
recovery of possession and for mesne profits both past and future.
4(a)The first defendant remained exparte. The second defendant in his
written statement would contend that the plaintiff is not the trustee of the
plaint trust. There is no trust as alleged in the plaint in existence. The
plaintiff has no legal status to file the suit in the capacity of a trustee of
the plaint trust. There is not dedication made to the plaint trust in respect
of the plaint schedule properties by any one. The plaintiff is not in
administration of the plaint schedule properties as a Sishya of his Guru. The
plaintiff was never in possession and enjoyment of the plaint schedule
properties and he never administered Thulasi Bava Mutt trust at Rameswaram or
Anuman Koil Trust at Dhanushkodi. Thulasi Bava Mutt was known as “Khakchowk”
Trust. Kali Krishna Dass was given in adoption to Jeyaramdass by his father
Ramakrishnadass. Jeyaram Dass is not the brother of Ramakrishnadass. Gopal
Dass is not the other son of Ramakrishnadass. After the death of Kalyana Dass,
T.R.Gopal Dass, the plaintiff, never became the trustee of the plaint trust and
never administered the plaint schedule properties in the capacity of a trustee
of the plaint trust. This defendant is not aware of the pendancy of O.S.No.16 of
1987. This defendant never agreed to handover the possession of the plaint
schedule properties to the plaintiff at any point of time. The averment that at
the instance of the defendants in O.S.No.16 of 1987 this defendant had
subsequently refused to handover possession of the suit properties is denied as
false. Kalyana Dass has become entitled to the suit properties as per the
decree and judgment in O.S.No.73 of 1980. He was given patta No.180 in
Rameswaram Village in respect of the plaint schedule properties. As per the
sale deed dated 22.11.1983, this defendant had purchased three cents of land in
the plaint schedule survey number property, which has been sub-divided as
S.No.769/1C/1B. After the purchase, this defendant had constructed a tiled
house in it. The defendant is in possession and enjoyment of the plaint
schedule properties from the year 1980 onwards. The suit is barred for
limitation. Hence, the suit is liable to be dismissed.
4(b)The third defendant had reiterated most of the defence raised in the
written statement of the second defendant. Further, he would contend that there
was no trust as alleged in the plaint and the plaintiff is not the trustee of
the plaint trust and that there was no Guru Sishya relationship maintained for
electing the trustee of the trust as alleged in the plaint. The plaint trust
was not known as Khakchowk trust & Thulasi Bava Mutt. The adoption of Kali
Krishna Dass by Jeyaram Dass is admitted. T.R.Gopal Dass is not the other son
of Ramakrishnadas. He was not given in adoption to Parameswaradass. The
plaintiff was never in administration of the plaint trust. Kalyana Dass died
on 11.3.1986. The plaintiff was never in administration of Thulasi Bava Mutt
trust or Panchamuga Anuman Temple at Rameswaram. This defendant along with D4
had purchased ‘D’ schedule property on 7.8.1982 from Kalyana Dass for sale
consideration of Rs.35,000/- and had constructed a house. These defendants have
also purchased plaint schedule item No.2 & 3. From 1982 onwards this defendant
is in possession of the property purchased under the said sale deed date
7.8.1982. This defendant never agreed to handover possession to the plaintiff
at any point of time. This defendant is a bonefide transferee of valuable
consideration. The suit is bad for mis-joinder of parties and also for mis-
joinder of cause of action. The suit is barred by limitation.
4(c)The fifth defendant in his written statement would contend that the
plaintiff has no legal status to file the suit and there was no trust. The
plaintiff is not the trustee. In other respects this defendant would
practically adopted the written statement of D3. According to D5, he had
purchased ‘E’ schedule property under the sale deed dated 2.8.1984 for
Rs.4,000/- from Kalyana Dass and thereafter he had constructed a thatched house
bearing Door No.7/15B. From 1982 onwards this defendant along with his family
is residing in the said house. The plaintiff has no cause of action to file the
suit. The plaint ‘A’ schedule property originally belong to Kalyana Dass as per
the decree in O.S.No.73 of 1960. A separate patta No.180 in Rameswaram was
assigned in the name of Kalyana Dass. This defendant is a bonefide transferee
for valuable consideration. The suit is bad for mis-joinder of parties and also
for mis-joinder of cause of action. This defendant prescribed title by way of
adverse possession to the suit property. Hence, the suit is liable to be
dismissed.
4(d) On the above pleadings the learned trial Judge had framed 12 issued
for trial.
5.A joint trial was conducted by the learned trial Judge. On the side of
the plaintiff, the alleged trusteee of the plaint trust viz. T.R.Gopal Dass has
examined himself as P.W.1 and Ex.A.1 to Ex.A.25 were marked. The father of D2 &
D3 in O.S.No.16 of 1987 was examined as D.W.1 and Ex.B.1-sale deed dated
12.5.1985 was marked on the side of the defendants.
6.The learned trial Judge after meticulously going through the evidence
both oral and documentary has held that the relief asked for under the plaint in
both the suits cannot be granted, and dismissed both the suits, which
necessitated the plaintiff in both the suits to prefer these appeals.
7.The points for determination in these appeals are as follows:-
1)Whether the plaintiff in both the suits / appellant is a trustee
of the plaint trust?
2)Whether the suit are barred by limitation?
3)Whether the decree and Judgment in O.S.No.16/87 and O.S.No.1/1991
on the file of the Court of Subordinate Judge, Ramanathapuram, is liable to be
set aside for the reasons stated in the respective memorandums of appeals?
8.Point No.1:- According to P.W.1, plaintiff, the vendor under Exs.A.19,
20 & 22 in favour of D1, D2& D3 and D4 in O.S.No.1 of 1991 executed by Kali
Krishna Dass are non-est since the vendor Kali Krishna Dass has no right or
title in respect of the plaint schedule properties in both the suits and as a
trustee of the plaint trust, he has no right or title to execute those sale
deeds in favour of the above said defendants in respect of the properties belong
to the plaint trust. Ex.A.25 is the only revenue record produced on the side of
the plaintiff to show that S.No.767/2 belongs to Thulasi Bava Dhama Chathiram.
Nowhere under Ex.A.25 it it stated that S.No.767/1, 767/2, 767/3 belong to the
plaint trust. It is seen from Ex.A.25 that the said properties were never
possessed either by the trust or by the trustees of the trust. Column 7 to
Ex.A.25 says that as per 10(1) Account Kali Krishna Dass has been incorporated
as the holder of patta. Even though patta is not a document of title, it is the
bounden duty of the plaintiff to show as correctly held by the learned trial
Judge, that there was a registered trust by name Khakchowk @ Thulasi Bava Mutt
and its trusteee is T.R.Gopal Dass. Unless the plaintiff proves that T.R.Gopal
Dass is the trustee of the Thulasi Bava Mutt @ Khakchowk trust, the relief of
recovery of possession of the plaint schedule properties in both the suits on
the ground that vendor viz., Kali Krishna Das @ Kalyana Dass had no right to
execute Exs.A.19, 20 & 22, sale deed in favour of D1, D2 & D3 and D4
respectively cannot be sustainable. A reading of Ex.A.19-sale deed will go to
show that the vendor Kali Krishna Add had derived title under the decree in
O.S.No.73 of 1960. Ex.A.3 is the Judgment in O.S.No.73 of 1960, which was filed
by the said Kali Krishna Dass, the vedor under Exs.A.19, 20 & 22. The said suit
was decreed in favour of the plaintiff viz. T.R.Kali Krishna Das under Exs,A.19,
20 & 22. Ex.A.4 is the decree in Ex.A.3-Suit. The schedule of properties to
Ex.A.4-decree is the properties belonging to Khakchowk trust @ Thulasi Bava
Mutt. So on the basis of the decree in O.S.No.73 of 1960, Kali Krishna Dass had
executed Exs.A.19, 20 & 22. But the question is whether the vendees under
Exs.A.19, 20 & 22 got any valid title in respect of the properties purchased
under those documents or not. But next question herein is whether the plaintiff
has any locus standi to file the suits in the capacity of a trustee of Khakchowk
@ Thulasi Bava Mutt. Since there is no material placed before the trail Court
to show that Khakchowk @ Thulasi Bava Mutt is a trust and that the plaintiff
T.R.Gopal Dass is a trustee of the plaint trust, the learned trial Judge has
come to a definite conclusion that the plaintiff is not entitled to the relief
asked for under the plaint in both the suits. Hence, I hold on point No.1 that
there is not material to hold that the plaintiff Khakchowk @ Thulasi Bava Mutt
is a trust and that Mr.T.R.Gopal Dass, plaintiff, is the trustee of the said
trust.
9.Point No.2 :- Ex.A.19 is dated 13.06.1979. Ex.A.20 is dated 17.12.1980
and Ex.A.22 is daed 2.8.1984. Even though the defendants have raised a defence
in their respective written statements that the suit is barred by limitation,
they have not specifically pleaded that they have prescribed title to the suit
properties by way of adverse possession. There is no pleading in the written
statement as to the effect that the plaintiff is the owner of the properties
sold under Exs.A.19, 20 & 22 and that the defendants have prescribed title by
way of adverse possession. In the absence of any evidence to show that the
defendants have prescribed title by way of adverse possession to the properties
scheduled to the plaint in both the suits, it cannot be said that both the suits
are barred by limitation. Point No.2 is answered accordingly.
10.Point No.3:-In view of my findings and discussions in the earlier
paragraphs, I hold on Point No.3 that the judgment and decree of the learned
trial Judge in O.S.No.1 of 1991 and O.S.No.16 of 1987 on the file of the Court
of Subordinate Judge, Ramanathapuram, need not be set aside for the reasons
stated in the respective memorandums of appeals.
11.The fact that some of the defendants have specifically executed a
settlement deed in respect of the properties purchased under the above said sale
deeds in the year 2007 in favour of the plaintiff will not derive us to a
conclusion that the plaintiff is a trust and T.R.Gopal Dass is a trustee of the
said trust. The judgment in O.S.No.149 of 1991 is not for the relif of a
declaration that the plaintiff trust is a trust and that T.R.Gopal Dass is its
trustee. The said suit was filed only to redeem a previous mortgage in respect
of the properties scheduled to the plaint in O.S.No.149 of 1991. There is no
material placed before this Court to show that the properties scheduled to
O.S.No.149 of 1991 is the properties scheduled to this plaint also. If the
properties scheduled in O.S.No.149 of 1991 is a property under Exs.A.19, 20 &
22, then certainly the vendees under Exs.A.19, 20 &22 would have been arrayed as
defendants in O.S.No.149 of 1991. The defendants in O.S.No.149 of 1991 are not
parties to either of these suits herein. The other document dated 1.3.1959 is a
trust deed executed by Sri Rangathri in favour of one Shanthidass. The said
document was produced as an additional document to show that on the basis of
Guru Sishya relationship the trustees were appointed for the plaint trust. But
as I have already observed there is no document produced to show that the plaint
trust is a registered trust and that T.R.Gopal Das is its trustee. Hence,
M.P.No.1 of 2008 in A.S.No.446 of 1995 filed under Order 49 Rule 27 of CPC is
also liable to be dismissed.
12.In fine, the appeals are dismissed confirming the decree and Judgment
in O.S.No.1 of 1991 and O.S.Nos.16 of 1987 respectively on the file of the Court
of Subordinate Judge, Ramanathapuram. No costs. Connected M.P.No.1 of 2008 is
also dismissed.
ssv
To,
The Subordinate Judge, Ramanathapuram.