IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.04.2010 CORAM : THE HONBLE MR. JUSTICE S.TAMILVANAN S.A.Nos. 974 and 996 of 2009 and M.P.Nos.1 and 1 of 2009 S.A.No.974 of 2009 Ambalavanar Trust Board Rep. By its Trustees 1. M.Lakshmanan 2. Vijayakumar 3. W.N.Thirunavukkarasu 4. D.Radhakrishnan 5. Dr.M.S.Amaresan 6. Rajendran 7. Kandasamy .... Appellant vs. K.Thirunavukkarasu Mudaliar .... Respondent
Second Appeal preferred under Section 100 CPC against the Judgment and Decree, dated 22.04.2009 made in A.S.No.26 of 2008 on the file of the Sub-Court, Kancheepuram.
S.A.No.996 of 2009
Ambalavanar Trust Board
Rep. By its Trustees
1. B.Kandasamy
2. P.Radhakrishnan
3. N.Thirunavukarasu
4.Rajendran …. Appellant
vs.
1. N.Ramalingam 2. M.Dhilip Kumar .... Respondents (Cause title accepted vide order of court, dated 03.09.2009 made in M.P.No.1 of 2009 in S.A.Sr.70303/09) Second Appeal preferred under Section 100 CPC against the Judgment and Decree, dated 16.04.2009 made in A.S.No.15 of 2008 on the file of the Sub-Court, Kancheepuram. For Appellant : Mr.V.Selvaraj in both the second appeals. For Respondents : Mr.R.Subramanian, Senior Counsel for C.B.Muralikrishnan in S.A.No.974/09 Mr.S.D.N.Vimalanathan in S.A.No.996/09 COMMON JUDGMENT
The Second Appeal in S.A.No.974 of 2009 is preferred against the Judgment and Decree, dated 22.04.2009 made in A.S.No.26 of 2008 on the file of the Subordinate Judge, Kancheepuram, reversing the Judgment and Decree, dated 14.12.2007 made in O.S.No.453 of 1998 on the file of the District Munsif, Kancheepuram.
2. The Second Appeal in S.A.No.996 of 2009 is preferred against the Judgment and Decree, dated 16.04.2009 made in A.S.No.15 of 2008 on the file of the Subordinate Judge, Kancheepuram, reversing the Judgment and Decree, dated 28.11.2007 made in O.S.No.527 of 2004 on the file of the District Munsif, Kancheepuram.
3. The suit in O.S.No.453 of 1998 was filed by the appellant Ambalavanar trust against the respondent in S.A.No.974 of 2009, seeking permanent injunction restraining the respondent, his men and agents from interfering with the peaceful possession and enjoyment of the plaintiff in the suit property, a total extent of 5.07 acres in S.No.254/2A and S.No.257 in Wallajabadh Village, Kancheepuram Taluk.
4. The suit in O.S.No.527 of 2004 was filed by the appellant Ambalavanar trust against the respondents in S.A.No.996 of 2009, seeking permanent injunction restraining the respondents from interfering with the peaceful possession and enjoyment of the suit property in respect of the land in S.No.269 in Wallajabadh Village, Kancheepuram Taluk, for which specific measurement and four boundaries are given by the appellant / plaintiff.
5. It is seen that both the suits were decreed by the trial court as prayed for. In appeal, the same were reversed by the appellate court, whereby the suits in O.S.No.453 of 1998 and O.S.No.527 of 2004 were dismissed. Aggrieved by which, these Second Appeals have been preferred by the plaintiff in the suit.
6. The following question is raised by the appellant in S.A.No.974 of 2009 in the grounds as substantial question of law :
“When the suit property has been endowed as trust property by the grand father of the respondent and has been in the possession and enjoyment of the trust pursuant to Ex.A.1, whether the appellate court is justified in reversing the judgment of the trial court.”
7. The following question is raised by the appellant in S.A.No.996 of 2009 in the grounds as substantial question of law :
“When the appellant has examined 3 witnesses to prove the sale of the property and possession and the first respondent has not examined himself as a witness, whether the appellate court is justified in relying upon the evidence of the second respondent in allowing the appeal. ”
8. It was argued at the outset by the learned counsel appearing for the respondents that both the second appeals and the connected suits are not legally maintainable. It was also brought to the notice of this Court that in both the second appeals and the related suits, the appellant / plaintiff is stated as Ambalavanar Trust represented by its alleged Trustees. However, learned counsel for the respondents submitted that the appellant / plaintiff has not established the locus standi in maintaining the suits as well as the second appeals. In the suit in O.S.No.453 of 1998, relating to S.A.No.974 of 2009, the Ambalavanar Trust is represented by seven trustees 1. M.Lakshmanan, 2. Vijayakumar, 3. W.N. Thirunavukkarasu, 4. D.Radhakrishnan, 5. Dr.M.S.Amaresan, 6. Rajendran and 7. Kandasamy. In the connected suit in O.S.No.527 of 2004, relating to S.A.No.996 of 2009, for the Ambalavanan Trust, the seven Trustees are stated as 1. G.Subramania Mudaliar, 2. N.P.Thanigai Arasu, 3. W.N.Thirunavukkarasu, 4. P.Radhakrishnan, 5. P.M.Namadev, 6.Rajendran and 7.Kandasamy. It is seen that in the second suit, instead of M,Lakshmanan, Vijayakumar and Dr.M.S.Amaresan, the names of Subramania Mudaliar, N.P.Thanigai Arasu and P.M.Namadev are stated as Trustees and in the second appeal in S.A.No.996 of 2009, only four Trustees names are shown, for which no acceptable reasons are available. Similarly no supporting documents have been marked to establish the locus standi of the alleged Trustees to represent Ambalavanar Trust.
9. Mr.V.Selvaraj, learned counsel appearing for the appellant submitted that the schedule of properties relating to both the suits and the second appeals are the properties of the appellant / plaintiff, Ambalavanar Trust. According to him, on 25.02.1942, the suit property in O.S.No.527 of 2004 was purchased by one W.D.Nataraja Mudaliar and he made a oral sale in favour of the appellant / plaintiff Trust on 04.09.1963, on the date of executing the trust deed. As contended by the learned counsel for the respondents, the alleged oral sale cannot be legally accepted. As per the pleadings of the appellant / plaintiff, in the last week of December 2001, the first respondent, N.Ramalingam, attempted to interfere with the peaceful possession and enjoyment of the suit property described in O.S.No.527 of 2004 belongs to the appellant Trust. Learned counsel for the appellant / plaintiff submitted that the properties described in the plaint schedules of both suits are the properties of the Ambalavanar Trust and that on 04.09.1963, when the trust was formed, the properties were the trust properties. In order to establish that suit properties belongs to the said Trust, no document has been marked to decide the title, in favour of the appellant / plaintiff. As per the plaint averments, on 09.07.1990, the property was leased to third party and in the first week of July 2008, the respondent / defendant in S.A.No.974 of 2009 tried to interfere with the appellant’s peaceful possession and enjoyment of the suit property, hence, the suit was filed.
10. Mr.R.Subramanian, learned Senior Counsel appearing for the respondent in S.A.No.974 of 2009 and Mr.S.D.N.Vimalanathan, learned counsel appearing for the respondents in S.A.No.996 of 2009 submitted that the appellant has not established their locus standi to maintain the suit as Trustees of Ambalavanar Trust by producing the trust deed of Ambalavanar Trust and other supporting documents relating to the title and he has also submitted that the appellant / plaintiff has not produced any supporting document to establish that the schedule of properties are the properties of Ambalavanar Trust and they are the Trustees and in such circumstances, there is no error or material irregularity on the part of the appellate court in allowing the appeals preferred by the respondents herein and dismissing the suits. It is also brought to the notice of this Court that as per the plaint, 7 persons were stated as trustees of Ambalavanar Trust. In the suit in O.S.No.453 of 1998, G.Subramaniya Mudaliar, N.P.Thanigai Arasu, Namadev Chettiar were also stated as trustees, however, in the second suit in O.S.No.527 of 2004, M.Lakshmanan, Vijayakumar and Dr.M.S.Amaresan were added as Trustees by deleting the aforesaid three names, for which there is no satisfactory explanation and supporting documents. According to the respondents, without proper evidence or supporting materials, the suits were filed by the aforesaid persons on false averments, by alleging themselves as Trustees of Ambalavanar Trust. According to the learned Senior Counsel, Mr.R.Subramanian, there is no illegality or material irregularity in dismissing the suit and there is no substantial question of law involved, as per Section 100 of the Code of Civil Procedure to maintain these two second appeals.
11. Mr.S.D.N.Vimalanathan, learned counsel appearing for the respondents in S.A.No.996 of 2009 also argued that the appellant herein have not established their locus standi to maintain the suit and the second appeal. The learned counsel, Mr.S.D.N.Vimalanathan drew the attention of this Court to the plaint in O.S.No.527 of 2004, wherein 7 persons were stated as trustees, but in the second appeal only 4 persons are stated as Trustees of Ambalavanar Trust, however, there is no supporting document to establish that neither the 7 persons mentioned in the plaint nor the 4 persons mentioned in the appeal have any locus standi to represent the alleged Ambalavanar Trust. Mr.S.D.N.Vimalanathan, learned counsel for the respondents further contended that there is no supporting materials available to prove or establish that the trust owned the suit schedule mentioned properties. According to the learned counsel, without establishing the locus standi and the alleged right in the suit property, by way of supporting evidence or materials, the suit was erroneously decreed by the trial court, however, the same was rightly reversed by the appellate court and the suit was dismissed.
12. Mr.S.D.N.Vimalanath, learned counsel appearing for the respondents in S.A.No.996 of 2009 relying on the decision, Pappayammal vs. Palanisamy, reported in 2005 (3) CTC 292, submitted that the second appeal has to be dismissed, since there is no substantial question of law involved to be decided in the second appeal. Relying on various decisions, this Court in the aforesaid decision has held that while sitting in the second appeal, invoking Section 100 CPC, it is not open to this Court to interfere with the finding of the court below, when there is no substantial question of law involved to be decided by this Court.
13. It is a settled proposition of law under Section 100 CPC, that when there is no perversity in the finding and no material irregularity, which warrant any interference of this Court, in the absence of raising any substantial question of law by the appellant, to be decided, the Court can interfere with the same, in the Second Appeal.
14. A Division Bench of this Court in Arulmighu Arasadi Karpaga Vinayagar Temple vs. The Commissioner, H.R. & C.E., reported in 2003 (2) CTC 663, held that wrong framing of issues would not render the decree and judgment bad if parties had understood each other’s case for the purpose of adducing evidence. Similarly, when the Court below having appreciated such evidence, being adduced, the appellate court cannot simply remand the matter, without deciding the same on merits.
15. It is seen that Ex.A.1 is only a xerox copy of certified copy of the Document No.2545 of 1963 issued by the Office of the Sub-Registrar, Wallajabadh on 21.02.1986. As per this document, one W.T.Masilamani Mudaliar who had Philanthropic mind executed the trust deed in the name of Ambalavanar Trust. The original of the document was not marked by the plaintiff, even the certified copy has not been marked, only a xerox copy of the certified copy has been marked. P.W.1 in O.S.No.453 of 1998 has deposed that the suit property, an extent of 5.07 acres of land belonged to the Ambalavanar Trust, which was founded by Masilamani Mudaliar. The said Masilamani Mudaliar had a son by name Kumarasivan, who died in the year 1975 and the respondent / defendant, K.Thirunavukkarasu Mudaliar is his son and grand son of Masilamani Mudaliar. In the cross-examination, he has admitted the fact that he has not produced any supporting document to show that the said 7 persons are the trustees of the Ambalavanar Trust and the suit property belonged to the said Trust.
16. It is seen from the records that, apart from the xerox copy of the certified copy of the aforesaid Document No.2545/1963 executed by late W.T.Masilamani Mudaliar, the following documents have been marked on the side of the appellant / plaintiff before the trial court, out of which, Ex.A.2 is a paper publication made in Dinamalar, Tamil Daily, Chennai edition, dated 06.07.1998 by P.Radhakrishnan stating himself as Secretary of Ambalavanar Trust, however, it is only a self-serving document. Ex.A.3 is a proceeding of Wallajabadh Town Panchayat, dated 01.08.1985. Ex.A.4 is a building sketch prepared by one P.Yuvaraj, D.C.E, Consulting Engineer. Exs.A.5 and A.6 are also self-serving documents signed by the parties in the printed letter head of the alleged Trust. Ex.A.7 is a receipt issued by Wallajabadh Town Panchayat for payment of Rs.1,600/- made, which is not sufficient to decide the locus standi of the persons representing the Trust in the absence of the Trust deed and other relevant documents.
17. As contended by the learned counsel appearing for the respondents, it is the duty of the appellant / plaintiff to establish their locus standi to maintain the suit as Trustees of Ambalavanar Trust. As per the plaint averments, the parties in both suits are stated to be the Trustees of Ambalavanar Trust. Admittedly, no trust deed or certified copy of the same has been produced by the plaintiff for the reasons best known to him. Though in the plaint, G.Subramaniya Mudaliar, N.P.Thanigai Arasu and Namdev Chettiar have been stated as 3 trustees, out of the 7 alleged trustees of the plaintiff Trust, in the second appeal, the aforesaid names were deleted instead M.Lakshmanan, Vijayakumar and Dr.M.S.Amaresan were stated as trustees, apart from the earlier trustee, W.N.Thirunavukkarasu, P.Radhakrishnan, Rajendran and Kandasamy.
18. As contended by the learned counsel appearing for the respondents, to establish the alleged factum that the aforesaid members are trustees to the Ambalavanar Trust, there is no supporting document. Therefore, as found by the appellate court, it is made clear that the plaintiff has failed to establish the allegation that the said seven persons are the trustees of Ambalavanar Trust. In both the suits, immovable properties are stated as trust properties. To establish that the properties are actually belonged to the trust, no supporting document has been marked, except the self-serving documents.
19. In the Substantial Question of Law raised by the appellant, it has been averred that the suit property has been endowed as trust property by the grand father of the respondent and has been in the possession and enjoyment of the trust, pursuant to Ex.A.1. However, based on Ex.A.1, a xerox copy of the certified copy, the relief sought for in the suit cannot be granted, since the appellant / plaintiff cannot claim any right based on the aforesaid documents. There is no supporting document to establish the claim made by the appellant as plaintiff in the suit.
20. Learned counsel appearing for the appellant submitted that the matter be remitted back to the trial court. As held by the Division Bench of this court reported in 2003 (2) CTC 663 (cited supra), mechanically this Court cannot remand the suit after allowing the second appeal, unless there is any substantial question of law relating to the relief sought for, has to be decided. Therefore, the substantial question of law raised in S.A.No.974 of 2009 cannot be construed as a substantial question of law, to be decided in the second appeal.
21. In S.A.No.996 of 2009, the question raised by the appellant as substantial question of law is when the appellant has examined 3 witnesses to prove the sale of the property and possession, in the absence of the first respondent having not examined himself as a witness, whether the appellate court is justified in relying upon the evidence of the second respondent in allowing the appeal. Merely because the appellant has examined 3 witnesses, without establishing their locus standi to represent the Ambalavanar Trust and establishing the relief sought for in the suit, merely on the ground that the first respondent has not examined himself as witness, the suit cannot be decreed by the trial court. The appellant herein, who was the plaintiff before the court below seeking the relief is bound to establish the claim and the burden cannot be shifted on the respondents / defendants.
22. As contended by the learned counsel appearing for the respondents, there is no acceptable evidence to show that the persons, who have filed the suits had any locus standi to maintain the suits, as trustees of Ambalavanar Trust. Similarly, they have not established the alleged factum of ownership of the property, by supporting documents that the properties belong to the aforesaid Trust.
23. In the aforesaid circumstances, I am of the considered view that there is no substantial questions of law involved either to allow the second appeals or remand the same, after setting aside the impugned Judgment and Decree passed by the court below and as such, the second appeals are liable to be dismissed.
24. In the result, both the second appeals are dismissed. However, there is no order as to costs.
tsvn
To
1. The Sub-Court, Kancheepuram
2. The District Munsif Court,
Kancheepuram