?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 10/06/2011 *CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH +OSA.34 of 2011 #R.M.Constructions $Chillaraikadai !FOR PETITIONER : Mr.M.S.Krishnan ^FOR RESPONDENT : Mr.M.Sundar :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.06.2011
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
AND
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH
O.S.A.No.34 of 2011
and
M.P.No.1 of 2011
1. R.M.Constructions
represented by its Managing Partner,
Mr.R.M.Cyril
108,R.M. Towers,
Chamiers Road,
Chennai 600 018.
2. R.M.Cyril
Managing Partner,
R.M.Constructions,
108,R.M. Towers,
Chamiers Road,
Chennai 600 018. ..Appellants
Vs.
1. Chillaraikadai
alias Mannadi Marudhukkadaikar Chatram
rep. By its Fit Person,
Arulmigu Marundheeswarar Thirukoil,
Thiruvanmiyur,
Chennai 600 041.
2. Bhupathi Naicker,
No.50, East Mada Street,
Thiruvanmiyur,
Chennai 600 041. ..Respondents
Appeal filed under Order XXXVI Rule 1 of O.S.Rules read with Clause 15 of Letters Patent against the common order and decreetal order dated 21.8.2009 made in O.A.No.305 of 2008 and A.No.2477 of 2008 in C.S.No.282 of 2008.
For Appellant : Mr.M.S.Krishnan,
Senior counsel for
M/s.Saravabhauman Associates
For Respondent-1 : Mr.M.Sundar
For Respondent-2 : No appearance
J U D G M E N T
V.PERIYA KARUPPIAH.,J
This appeal is directed against the order of the learned Single Judge passed in O.A.No.305 of 2008 along with A.No.2477 of 2008 in C.S.No.282 of 2008, dated 21.08.2009.
2. The appellants are the defendants 2 and 3 in the suit filed by the first respondent as plaintiff. The second respondent is the first defendant in the suit.
3. For convenience sake, the rank of parties in the suit are maintained in this judgment.
4. The suit was filed by the plaintiff in respect of the suit property for permanent injunction restraining the defendants, their men, agents, servants, subordinate men acting under or on behalf of them, men claiming to act under or on behalf of them from interfering in any manner with the plaintiff’s peaceful possession and enjoyment of the suit property i.e., Door Nos.14 and 15, East Mada Street, Thiruvanmiyur, Chennai 41 comprising in S.No.193/7 forming part of Plaintiff Endowment property comprising in Pymash Nos. 1165, 1166 and 1167 in 140, Thiruvanmiyur Village, Chennai -41, admeasuring 31 cents of land and for costs.
5. The plaintiff has also filed an application in O.A.No.305 of 2008 seeking interim injunction restraining the respondents, their men, agents, subordinates, men acting under or on behalf of them, men claiming to act under or on behalf of them from interfering in any manner with the applicant / plaintiff ‘s peaceful possession and enjoyment1 of the schedule property situated at Nos. 14 and 15, East Mada Street, Thiruvanmiyur, Chennai 41 comprised in S.No.193/7 comprising in Pymash Nos. 1165, 1166 and 1167 in 140, Thiruvanmiyur Village, Chennai -41, admeasuring 31 cents of land, pending disposal of the suit.
6. The brief facts of the case of the applicant / plaintiff as set out in the application in O.A.No.305 of 2008 is as follows:-
6.(i) The applicant / plaintiff is a specific Endowment within the meaning of Section 6 (19) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, (herein after called as the ‘said Act’). Income yield from the specific properties belonging to the applicant / plaintiff Endowment are dedicated for the performance of specific charity/ religious charity during Brahmmotsavam in Arulmigu Marundheeswarar Thirukkoil, Thiruvanmiyur, Chennai 41 (herein after called as the ‘said temple’.
6.(ii) The Commissioner, HR & CE Department vide order dated 03.10.1974 appointed the (ex-Officio) Executive Officer of the said Temple as Trustee of the applicant / plaintiff Endowment for a period of three years, under Section 47 of the said Act. Even after three years, the Executive Officer of the said temple continued to function and administer the applicant / plaintiff Endowment as Trustee. Thereafter, the Joint Commissioner, HR & CE Department vide order dated 02.01.2008 appointed the Executive Officer of the said Temple (ex-officio) as Fit Person of the applicant / plaintiff Endowment under the proviso to Section 47(1)(c) of the said Act. The said order is in vogue and the administration of the Plaintiff Endowment is vested in the said Fit Person.
6.(iii) The schedule mentioned property is comprised in S.No.193/7 and 140, Thiruvanmiyur Village, Chennai -41, admeasuring 31 cents and forms part of the specific endowment comprised originally in Paimash Nos.1165, 1166 and 1167 situated in Thiruvanmiyur Village. At present there are 12 tenants under the applicant / plaintiff Endowment in the said property and 5 tenantable portions are vacant.
6.(iv) The Deputy Commissioner, HR & CE Department initiated suo motu proceedings under Section 63 of the said Act in O.A.No.9 of 1961. By order dated 24.07.1963 in O.A.No.9 of 1961, the Deputy Commissioner, HR & CE Department clearly held that the properties comprised in Paimash Nos.1165, 1166 and 1167 in Thiruvanmiyur Village, Saidapet Taluk, Chenglepet District known as Chillaraikadai alias Mannadi Marundhukkadaikarkar Chatram is a specific Endowment under Section 6(19) of the said Act. An appeal was preferred in A.P.No.65 of 1963 against the above order. The Commissioner, HR & CE Department, by order dated 30.07.1964 dismissed the appeal and confirmed the order of the Deputy Commissioner. This Order has been given legal quietus and finality.
6.(v) In the meanwhile, the 1st defendant herein filed a suit in O.S.No.1184 of 1971 on the file of the II Additional District Munsif, Poonamallee, against certain individuals (mentioning them as his tenants and sub-tenants) and the applicant / plaintiff herein, for recovery of possession and injunction with regard to certain portions of the plaint schedule property. The said suit was decreed. But the appeal in A.S.No.77 of 1976 on the file of Subordinate Judge’s Court, Chengalpet (Originally A.S.No.126 of 1976 on the file of District Court, Chengalpet) preferred against the said order was allowed and the decree of the trial court was set aside vide judgment and decree dated 24.01.1978, which has been given complete legal quietus and finally. The said judgment is a judgment in rem and it is in vogue. In the said judgment, it has been clearly held that the plaint schedule property is a specific endowment belonging to the applicant / plaintiff Endowment for the purpose of performance of certain specific charities / religious charities (kattalai) in the said temple.
6.(vi) Similarly, the 1st defendant has also initiated certain suits against the tenants in the plaint schedule property as if he is the landlord. One such suit is O.S.No.7334 of 1998 on the file of II Assistant Judge’s Court, City Civil Court, Chennai, which was decreed. Against which an appeal was preferred by tenants in A.S.No.255 of 2001 on the file of the IV Additional Judge’s Court, City Civil Court, Chennai and has culminated in Second Appeal in S.A.No.2054 of 2003 before this Hon’ble Court. The Hon’ble Court by an interim order dated 19.12.2003 in CMP.No.18796 of 2003 suspended the orders of the Lower Court and this Interim Order was made absolute on 20.01.2005.
6.(vii) The 1st defendant had made attempts to interfere with the possession of the plaint schedule property in 2005, for which the temple has filed a suit for bare injunction in O.S.No.8391 of 2005 on the file of the XIII Assistant Judge’s Court, City Civil Court, Chennai, and the same is pending.
6.(viii) The applicant / plaintiff Endowment is in sole and absolute possession of the plaint schedule property. The tenants under the applicant / plaintiff Endowment are in occupation of various portions of the plaint schedule property and they are paying rents to the applicant / plaintiff Endowment. The property tax is being paid by the plaintiff Endowment. The electricity connection to the plaint schedule property is in the name of the applicant / plaintiff Endowment. The Town Survey Land Register Extract clearly shows that the plaint schedule property stands in the the name of the applicant / plaintiff Endowment.
6.(ix) Now, the defendants are making constant and repeated attempts to interfere with the peaceful possession of the plaint schedule property by the applicant / plaintiff Endowment, for which a police complaint has been lodged. The defendants are attempting to and holding out threats that they would enter upon the plaint schedule property, usurp possession, demolish the superstructure and start developing the same.
6.(x) Under such circumstances, the applicant Endowment has filed the application in O.A.No.305 of 2008 seeking an order of interim injunction till disposal of the suit. 7. The brief facts of the case of applicants/defendants 2 and 3 in A.No.2477 of 2008, a petition to vacate the stay order are as follows:
7.(i) It is false that the Endowment property comprised in Paimash Nos. 1165, 1166 and 1167 is presently comprised in S.No.193/7. The present system being followed by the Revenue Department for Thiruvanmiyur Village is based on Block Numbers and Town Survey Numbers. Paimash Numbers are converted into Survey Numbers. Subsequently, Survey Numbers are converted into Block Numbers and Town Survey Numbers. The property in Paimash Numbers. 1165, 1166 and 1167 over which the plaintiff is claiming did not stand in their name. Patta No.1318 bears the endorsement that the details therein have been compared with the Chitta and found to be correct. The Land Survey Register dated 16.06.1995 and 07.08.1996 issued by the Deputy Tahsildar, Tiruvannamalai gives a comparative table between Paimash Numbers and corresponding Survey Numbers with reference to Thiruvanmiyur Village. It is seen from the said Register that Paimash No. 1167 is comprised in Survey No.193/2 and Paimash Number 1165 and 1166 comprised in Survey No.193/1 and therefore, the applicants claim for injunction in respect of Survey No.193/7 cannot be sustained. The second respondent/first defendant has been in possession and enjoyment of property comprised in Survey No.193/7 for more than three decades, which is the ancestral property of late Murugesa Naicker who was the father of the second respondent. After the demise of the said Murugesa Naicker, the second respondent and his seven children are entitled to have a share in the property. As joint owners of the said property, the patta has also been granted. The urban land tax to the said property was paid by the second respondent. The second respondent mortgaged the property to one C.Ganesan under a Deed of simple mortgage dated 26.7.1993, registered with the Joint Sub Registrar, Thiruvanmiyur as Document No.3606 of 1993. After the discharge of the mortgage by the respondent dated 31.10.1999, the land in survey number 193/7 was divided into survey field numbers 3/2 and 4/2 and having municipal Door Nos.14 and 15. Subsequently, on 31.12.2002 a release deed was executed by the second respondent and his three daughters releasing their share in the said property in favour of four sons of the second respondent, viz., Babu, Sankar, Palani and Vijayakumar. Thus, the four sons of the second respondent became the absolute owner of the property and mutation was also carried out in the land register. Thereafter, the sons of the second respondent sold the property to the defendants 2 and 3.
7.(ii) The suit filed before the Subordinate Judge, Chengalpattu in A.S.No.77 of 1976 pertained to an indeterminable piece of property and it relates to the minuscule portion of the present suit property. The said judgment itself is not a judgment in rem. On the other hand, the suit in O.S.No.7334/98 was decreed in favour of the second respondent and upheld by the lower appellate Court, but pending in Second Appeal before this Court, clearly shows that the real owner is the second respondent. It was also stated that a suit filed by the Temple in O.S.No.8391 of 2005 is pending before the XIII Assistant City Civil Court, Chennai is an abuse of process of law. The present suit which is for a bare injunction without a declaratory relief is bad in law.
8. The averment in the counter of the first respondent/plaintiff in A.No.2447 of 2008 are as follows:
The first respondent/plaintiff denied all the allegations made in A.No.2447 of 2008. A reference to the entire A Register will show that with regard to Survey Numbers 193/1, 193/4 to 49, the entry in the appropriate Remarks column says that the manaivari/manaivaadagai register should be referred to. The manaivari/manaivaadagai register which forms part of the A-register clearly shows that the registered owner of Survey No.193/7 is the plaintiff endowment. Even according to the documents relied on by the defendants 2 and 3, Paimash Nos. 1165 and 1166 are relatable to Survey Nos. 193/1 and 193/4 to 49 and Paimash No.1167 is relatable to the entire Survey No.193/2. It is further stated that 140, Thiruvanmiyur Village is an Inam Village and the same was taken over by the Government on and from 1.10.1951 which is evident from the A-Register. Therefore, the entries in the A-Registrar are conclusive. Moreover, the first defendant is not before the Honourable Court and defendants 2 and 3, who are builders cannot be heard to make assertions regarding the purported possession and enjoyment of the first defendant. Further, there cannot be any change or transfer of any records without notice to the applicant endowment and if there had been any such subsequent change of transfer of that kind without notice to the applicant endowment, the same are non-est in law.
9. On perusal of the records produced by the plaintiff and the affidavit submitted in support of the application, the learned Single Judge had passed an order of ad-interim injunction exparte. The defendants 2 and 3 filed an application in A.No.2477 of 2008 for vacating the ad-interim injunction granted against them and both applications were taken up together by the learned Single Judge and the learned Single Judge was pleased to make absolute the interim injunction already granted and consequently, the application filed for vacating the ad-interim injunction was dismissed.
10. Aggrieved against the said order, the defendants 2 and 3 (appellants) have preferred this present appeal.
11. Heard Mr.M.S.Krishnan, learned senior counsel appearing for the appellants / defendants 2 and 3 and Mr.M.Sundar, learned counsel appearing for the respondent / plaintiff. No appearance was made on behalf of the second respondent / first defendant.
12. The learned Senior Counsel appearing for the appellants would submit in his argument that the appellants are the defendants 2 and 3 before the learned Single Judge, who purchased the properties in Door Nos.14 and 15, East Mada Street, Thiruvanmiyur, Chennai 41 comprising in S.No.193/7 Thiruvanmiyur Village, Chennai -41 from one Babu, Sankar, Palani and Vijayakumar and became the owner of the said property. He would further submit that the vendors of the defendants 2 and 3, are the four sons of the first defendant and the first defendant and his three daughters executed a release deed in respect of the said property in favour of the vendors of the defendants 2 and 3 namely, Babu, Sankar, Palani and Vijayakumar on 31.12.2002 and thereby the vendors of the defendants 2 and 3 acquired title to the said property. He would also submit that the first defendant was having patta in his name even from the year 1976 and he had also mortgaged the land comprised in S.No.193/7 to one Ganesan on 26.07.1993 and the said mortgage was subsequently discharged under a receipt dated 31.10.1999 and the same was also registered. He would further submit in his argument that the plaintiff who failed in its attempt in an earlier suit filed, in the name of Arulmighu Marudheeswarar Temple, Thiruvanmiyur, in O.S.No.8391 of 2005 on the file of the XIII Assistant City Civil Court, Chennai, which was dismissed for the default of the plaintiff, had come forward with this suit and it would be an abuse of process of law and would amount to forum shoppe. He would further submit that the plaintiff has claimed that the property was belonging to an Endowment, namely, Chillaraikadai alias Mannadi Marundhukkadaikar Chatram, which was dedicated for the celebration of 6th day Bavani festival of Arulmighu Marudheeswar Thirukkovil, Thiruvanmiyur and also for poor feeding. He would further submit that however, the plaintiff claimed that the said property in D.Nos.14 and 15 of East Mada Street, comprised in S.No.193 / 7 of Thiruvanmiyur Village was corresponding to the old Paimash Nos.1165, 1166 and 1167 of the said village, but it was not prima-facie shown that the property dedicated to the particular Endowment was correlated with the suit property. He would further submit in his argument that if really the land in S.No.193 / 7 is correlated to old Paimash Nos.1165, 1166 and 1167, the first defendant would not have been granted with patta in the year 1976. He would further submit that the vendors of the defendants 2 and 3 were in continuous possession after they got the release deed from their father – the first defendant, and their three sisters in the year 2002 and before that the first defendant was in possession and enjoyment of the suit property which could be evidenced from the patta issued in his name in the year 1976 and the mortgage executed in the year 1993 and discharged in the year 1997. He would further submit that in the suit filed before the said Civil Court in O.S.No.8391 of 2005, no interim injunction was granted in favour of the plaintiff. The Chitta Extract also bear the name of the first defendant and thereafter the names of the vendors of the defendants 2 and 3 and now in the names of the defendants 2 and 3. The total extent of 31 cents in S.No.193 / 7 was not shown to have correlated with old Paimash Nos.1165, 1166 and 1167 and therefore there could not be any prima facie case for the plaintiff. He would further submit in his argument that the said property in S.No.193 / 7 of Thiruvanmiyur Village of an extent of 31 cents has been further resurveyed into Town Survey Numbers as T.S.Nos.3/2 and 4/2. The said resurveyed and subdivided property is also standing in the name of defendants 2 and 3 and therefore it is a case of mistaken identity of the property. He would further submit that the plaintiff did not establish any prima-facie case in respect of the ownership and possession of the property and the learned Single Judge was not correct in granting ad interim injunction and thereafter, the temporary injunction against the true owner of the property. He would further submit that the balance of convenience is also in favour of the defendants 2 and 3 and not in favour of granting injunction in favour of the plaintiff. He would also submit that the injunction granted against the defendants 2 and 3 is very much causing prejudice to the right of the defendants 2 and 3 and therefore, the application filed by the plaintiff for the grant of injunction ought to have been dismissed by the learned Single Judge and the application filed by the defendants 2 and 3 to vacate the injunction be ordered. However, the learned Single Judge has passed an order granting injunction in favour of the plaintiff which is contrary to law and facts of the case and therefore the appeal has to be allowed by interfering the judgment of the learned Single Judge.
13. Mr.M.Sundar, learned counsel for the first respondent / plaintiff would submit in his argument that the second respondent / first defendant did not file any appeal regarding the finding of the learned Single Judge. He would further submit that there is no dispute that the suit property is located in Door Nos.14 and 15, East Mada Street, Thiruvanmiyur Village and it is in S.No.193/7 of Thiruvanmiyur Village. He would also submit that the said property in S.No.193/7 of an extent of 31 cents and in S.No.193/2 of an extent of 1.98 acres are belonging to the plaintiff by a specific Endowment made for the purpose of celebrating the 6th day Bavani Festival and also for poor feeding during the Mahotsavam Festival of Arulmighu Marundheeswarar Temple, Thiruvanmiyur and it was dedicated long back and the said dedication was recognized by a suo-motu order passed by the HR & CE Department on 24.07.1963 and the property in three Paimash Nos.1165, 1166 and 1167 were described in the said order and the Chatram abutting East Mada Street and the Garden lying behind the said Chatram were mentioned as the properties belonging to the Endowment. He would also submit that the said Endowment was a specific Endowment defined under Section 6(19) of the HR & CE Act and such dedication is a permanent one and the Endowment is always an Endowment. He would further submit that the said three Paimash Nos.1165, 1166 and 1167 were subsequently resurveyed as S.Nos.193/2 and 193/7 and the suit property was comprised in S.No.193/7 of an extent of 31 cents. He would also submit that the said Paimash Numbers were found to have been correlated with S.Nos.193/2 and 193/7 and the ‘A’ Register Extract would disclose the same. He would further submit in his argument that the Head Quarters Tahsildar of the said Taluk was directed by the learned Single Judge to furnish particulars regarding the correlation of Paimash Nos.1165, 1166 and 1167 with the resurveyed Survey Numbers and their extent, but the said Tahsildar did not answer to those questions, but had produced the extract of the documents which would amply prove the case of the plaintiff. He would refer to the report of the Tahsildar dated 27.08.2008 and the sketch produced in Page No.218 of the consolidated typed set of papers and submit that the S.No.193/7 was further resurveyed and assigned T.S.No.3/2, 4/2 and the S.No.193/2 was also subdivided into S.No.193/2A, 193/2B and subsequently resurveyed into T.S.Nos.4/1, 19 and 20 and therefore it could be seen that the property in S.No.193/7 is abutting the East Mada Street and the landed property which was referred to as Garden in the order passed by the HR & CE Department, is located on its back in S.No.193/2. He would further refer to the subdivisions and correlation Statement of the Town Survey produced in Page No.222 of the consolidated typed set of papers and place his reliance. He would further submit that the correlation statement enclosed with the letter of the Tahsildar dated 09.09.2008 would go to show that S.Nos.193/1 and 193/4 to 193/49, are correlated with old Paimash Nos.1165 and 1166. He would also submit that S.No.193/7 is also covered by such information, which is correlated with the said Paimash Nos.1165 and 1166 along with other Paimash Nos. He would further submit that the ‘A’ Register produced in Page Nos.70 and 71 would also disclose the same. He would further submit that the copy of ‘A’ Register produced in Page Nos.1 and 2 of the typed set of papers would go to show that S.No.193/7 of an extent of 31 cents is standing in the name of the plaintiff. Therefore, he would submit in his argument that the collusive suit filed by the first defendant without impleading the plaintiff would go to show the malafide intention of the first defendant to grab at the property from the hands of the plaintiff by creating revenue records. He would further submit that the suit filed by the first defendant against the tenants and impleading the plaintiff as one of the defendants in O.S.No.1184 of 1971 on the file of the II Additional District Munsif, Poonamallee for recovery of possession and injunction in respect of certain portions of the suit property was decreed against the plaintiff and the subsequent appeal preferred by the plaintiff in A.S.No.77 of 1976 on the file of the Sub-Judge, Chengalpattu was allowed and the suit filed by the first defendant in respect of the suit property was dismissed by the judgment and decree dated 24.01.1978 and no Second Appeal was preferred against the said judgment and decree and therefore, it became final. He would further submit that the first defendant ought to have taken advantage of the decree passed in his favour in O.S.No.1184 of 1971 at the hands of II Additional District Munsif, Poonamallee, ought to have obtained patta in his name regarding the suit property in the year 1976, but the said decree in O.S.No.1184 of 1974 was set aside by the learned Sub-Judge, Chengalpattu in A.S.No.77 of 1976 dated 24.01.1978 and therefore the patta will not be helpful to uphold the false claim of the first defendant. He would draw the attention of the Court that the order passed by the HR & CE Department was earlier in point of time, viz., 24.07.1963 and the first defendant had taken steps to interfere with the right of the plaintiff in respect of the said property and it was decided in the judgment of the Sub Court, Chengalpattu made in A.S.No.77 of 1976 dated 24.01.1978 that he was not entitled to the suit property. He would further submit that the mortgage deed was a self serving document created in the year 1993 and it will not bind the plaintiff nor the property which was not belonging to the first defendant. He would further submit that the subsequent execution of the release deed by the first defendant along with his three daughters in favour of his four sons is also a way to create false documents and based on the said document, no right will accrue to the sons of the first defendant. The defendants 2 and 3, who were said to have purchased the property from the first defendant’s four sons, are also not entitled to any right in the suit property, since those documents are purely cooked up documents so as to grab at the property with the help of the first defendant. He would further submit in his argument that the property lying on the back side of the suit property, comprised in S.No.193/2, is also a dedicated property. He would further submit that the order passed by the HR & CE Department would disclose that the Chatram and the Garden lands located in Paimash Nos.1165, 1166 and 1167 are found to have correlated with the S.Nos.193/7 and 193/2 and therefore the Chatram abutting East Mada Street was assigned Door Nos.14 and 15 and therefore the plaintiff has got a prima facie case over the title and possession. He would also submit that the staff and sub-staff of the Arulmighu Marudheeswarar Temple, Thiruvanmiyur are residing in the said property as tenants and the plaintiff is in possession and enjoyment of the said property through them. He would also submit that if for any reason, the injunction granted in favour of the plaintiff is vacated, immediately the defendants 2 and 3 will throw away the tenants of the plaintiff, who are residing at the property and the plaintiff and the superstructures standing in S.No.193/7 will be demolished and it cannot be retrieved back. Therefore, the balance of convenience is in favour of the plaintiff only and not in favour of the defendants. He would also submit that in the event of the appeal being allowed by interfering and setting aside the order of the learned Single Judge, the plaintiff will land in irreparable loss which cannot be compensated in the form of money. The object of the creation of specific Endowment will be frustrated in the event of vacating the temporary injunction granted in favour of the plaintiff. Therefore, he would request the Court to dismiss the appeal.
14. We have given anxious consideration to the arguments advanced on both sides.
15. The suit has been filed by the plaintiff for the following reliefs:-
“(a) for permanent injunction restraining the defendants, their men, agents, servants, subordinates, men acting under or on behalf of them, men claiming to act under or on behalf of them from interfering in any manner with the plaintiff’s peaceful possession and enjoyment of the plaint schedule property being Nos.14 and 15, East Mada Street, Thiruvanmiyur, Chennai 41 comprised in S.No.193/7 and 140, Thiruvanmiyur Village, Chennai -41, admeasuring 31 cents of land; and
(b) for costs of the suit to be paid by defendants to plaintiff .”
16. The case of the plaintiff would be that the staff and sub-staff of the Arulmighu Marundheeswarar Temple are residing and through them the plaintiff is in possession of the said property bearing Door Nos. 14 and 15, East Mada Street, Thiruvanmiyur, Chennai 41 comprising in S.No.193/7 and 140, Thiruvanmiyur Village, Chennai -41. Indisputably, the suit property is bearing Door Nos. 14 and 15, East Mada Street, Thiruvanmiyur, Chennai 41. It is also not disputed that the said property was located in S.No.193/7 and the same has been now resurveyed and subdivided into T.S.No.3/2 and 4/2 in Block No.16. The plaintiff claims that the suit property is dedicated to the plaintiff Endowment, which was recognised by the order dated 24.07.1963 passed by the Deputy Commissioner, HR & CE Department. However, the defendants 2 and 3 claim title to the suit property that it belongs to them, said to have purchased the same from Babu, Sankar, Palani and Vijayakumar, who are the sons of the first defendant, as the first defendant and his three daughters relinquished their interest in the said property in favour of the vendors of defendants 2 and 3 on 31.12.2002. Therefore, the case of defendants 1 and 2 would be that the property was originally belonged to the first defendant and his sons and daughters. For that the defendants 2 and 3 relied upon a mortgage deed executed by the first defendant in the year 1993 and it was discharged in the year 1999. Apart from that, the first defendant was stated to have obtained a patta in the year 1976. The defendants 2 and 3 have also claimed to have in possession of the said property by virtue of the sale deed executed by their vendors.
17. In the said back drop of claims, we have to see whether the plaintiff is in possession or the defendants are in possession of the suit property. Moreover, we have to also ascertain whether the prima facie case has been established on the side of the plaintiff to grant the relief of temporary injunction. However, the learned Single Judge has come to a conclusion that the plaintiff has got prima facie case of ownership and possession and the balance of convenience is also in its favour and therefore injunction has been made absolute in favour of the plaintiff. Therefore, we have to see whether the order passed by the learned Single Judge is liable to be interfered.
18. As per the sale deed, vacant possession is said to have been given to the defendants 2 and 3. However, it is not disputed that the staff and sub-staff of the Arulmighu Marudheeswarar Temple, Thiruvanmiyur are residing in the said Door Nos.14 and 15 of East Mada Street, Thiruvanmiyur Village. Now when we go through the order passed by the Deputy Commissioner of HR & CE Department, which is produced at Page Nos.6 to 23 of the consolidated typed set of papers made in O.A.No.9 of 1961 dated 24.07.1963, in the said order, it has been categorically mentioned that the land bearing Paimash Nos.1165,1166 and 1167, situated in Thiruvanmiyur Village was endowed for the performance of 6th day Mahotsavam Festival from its income. The said property was described as a big Chatram and a Garden behind it, in the East Mada Street, Thiruvanmiyur. The Endowment was created by a Private Trust, namely, Chillaraikadai alias Mannadi Marudhukkadaikar Chatram. It is also stated that the garden land is situated in Paimash No.1167. Therefore, we could understand that the Chatram is located in Paimash Nos.1165 and 1166. As admitted by the defendants 2 and 3, the building stands in S.Nos.193 / 7 is abutting East Mada Street in the Door Nos.14 and 15. On a cursory perusal of the ‘A’ Register, we can see that S.No.193/7 of an extent of 31 cents is correlated to Paimash Nos.1165 and 1166 along with other Paimash Numbers. The S.No.193/4 to 6 and 8 to 49 were also shown to have corresponded with the said Paimash Numbers 1165 and 1166. When we see the correlation of Paimash No.1167, which is a Garden land, the same is correlating with S.No.193/2. The order passed by the Commissioner, HR & CE Department in the year 1963 would show that the land situated in Paimash No.1167 has to be utilised for raising income for the celebration of 6th day Mahotsavam. In the admitted sketch produced by the Tahsildar, Thiruvanmiyur in page No.218 of the typed set of papers, the said Garden land correlated with Paimash No.1167 is located behind S.No.193/7, the suit property. The said location would prima facie show that the suit property is the Chatram located in between East Mada Street and the land in S.No.193/2 (located in old Paimash No.1167). Therefore, the order passed by the Deputy Commissioner, HR & CE Department and the correlation as per ‘A’ Register would prima facie go to show that the property endowed in Paimash Nos.1165 and 1166 is the suit property.
19. No doubt it is true that a suit was filed by the first defendant against the tenants and the plaintiff in O.S.No.1184 of 1971 on the file of the II Additional District Munsif, Poonamallee for recovery of possession and injunction of the plaint schedule property and the suit was decreed in favour of the first defendant at the first instance and the appeal preferred by the plaintiff before the Sub Judge, Chengalpattu in A.S.No.77 of 1976 was allowed and thereby the claim of the plaintiff was upheld in respect of the suit property. It has been categorically stated in the judgment that the order of the Commissioner, HR & CE Department was upheld. There was no further appeal by the 1st defendant against the said judgment. It is also true that the first defendant, who was claiming to be the patta-holder of the suit property in the year 1976, was a party to the appeal and he is also bound by the said judgment. Therefore, we cannot attach any credit to the patta said to have been issued by the Revenue Department in favour of the first defendant in the year 1976. Even after the said judgment passed by the learned Sub Judge, Chengalpattu in A.S.No.77 of 1976, the first defendant had filed other suits against the tenants and one such suit was decreed and the appeal preferred by the tenants was also dismissed and the Second Appeal has been preferred by the tenants and it is pending before this Court and the operation of the judgment and decree passed by the lower Court were stayed by this Court. It is not disputed that the plaintiff was not a party in those proceedings. Similarly the subsequent mortgage incorporating the suit property cannot at any stretch of imagination be an evidence to prove the title of the first defendant, since we have seen a prima facie case of Endowment in respect of the suit property along with the eastern adjacent property.
20. In the judgment rendered in A.S.No.77 of 1976 on the file of the Sub Judge, Chengalpattu, the learned Sub Judge in his judgment dated 24.01.1978 had laid down as follows:-
“On a perusal of the records, I am able to see that the plaintiff was attempting to set up his title to the suit property in himself, till he got in to box. In the lease deed (Ex.A-14) he has claimed absolute title to the suit property as the private property of his family. In the plaint also, he has specifically mentioned that the person in management of his property is entitled to collect the income from the property and the only obligation on him was to put up pandal at Marundeeswarar Temple. In Ex.A11 which is a notice sent by the plaintiff to the Executive Officer of the Town Panchayat, he has informed that this property belongs to him absolutely and therefore, the demand by the Executive Officer for the house tax from the occupants is illegal. Therefore, from the beginning, the plaintiff has been setting up title to the suit property only in himself as his exclusive property and only when he get into the box he has admitted that the income from the property has to be spent for the temple. But absolutely there is no document to show that the plaintiff is the trustee of this property to manage the same.”
The said judgment was not questioned by the first defendant by way of the Second Appeal and therefore it has become final and it is binding upon the first defendant. It has been mentioned in the said judgment that the first defendant herein (as plaintiff in that suit) was attempting to set up his title in the suit property himself as a private property of his family, but he had admitted in his evidence that the income from the property has been spent for the temple. Therefore, the claim of the defendants 2 and 3 as the vendees from the four sons of the first defendant on the release deed executed by the first defendant along with his three daughters in favour of his four sons would not create any right in respect of the suit property. When there was no title for first defendant in the suit property, the same ratio is applicable for the alleged release deed executed by the first defendant and his three daughters in favour of the first defendant’s four sons, namely, Babu, Sankar, Palani and Vijayakumar, who in turn executed a sale deed in favour of the defendants 2 and 3. There is no difference of opinion in respect of creation of Endowment and its continuance. Once an Endowment is made it is always an Endowment. The plaintiff’s staff and sub-staff are residing in the property and the defendants 2 and 3, who are the developers and promoters of properties, are yet to get possession even though vacant possession is stated to have been given by the alleged vendors in favour of the defendants 2 and 3.
21. Therefore, we could see a prima facie case established in favour of the plaintiff. If for any reason, the possession of the plaintiff through its staff and sub-staff, who are actually residing there is disturbed by the defendants 2 and 3 or by the first defendant, by continuing their activities for developing the property for promoting the suit property into apartments and houses whatever it may be, the original position of the property cannot be restored nor the object of the Endowment could be achieved. Therefore, the balance of convenience is also in favour of the plaintiff and not in favour of the defendants 2 and 3.
22. Even though the first defendant was served with notice, there was no appearance on his side nor any case has been put forth on his behalf.
23. The learned Single Judge has discussed these points elaborately and had come to a conclusion that the plaintiff is entitled for a temporary injunction till the disposal of the suit, which is quite justifiable and there is no need for interfering with the order of the learned Single Judge. In the said circumstances, we are of the considered view that the learned Single Judge is quite right in granting an absolute temporary injunction by making the ad interim injunction into a temporary injunction in favour of the plaintiff. Therefore, we are upholding the order passed by the learned single Judge and the appeal is dismissed with costs. Consequently, connected Miscellaneous Petition is closed.
(R.B.I.J.,) (V.P.K.,J.)
10.06.2011
Index:Yes
Internet:Yes
mra
R.BANUMATHI.,J.
AND
V.PERIYA KARUPPIAH.,J.
mra
Pre-delivery judgment made in
O.S.A.No.34 of 2011
10-06-2011
