{"id":140595,"date":"2006-10-27T00:00:00","date_gmt":"2006-10-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/soundaram-vs-krishnan-on-27-october-2006"},"modified":"2017-02-15T21:53:36","modified_gmt":"2017-02-15T16:23:36","slug":"soundaram-vs-krishnan-on-27-october-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/soundaram-vs-krishnan-on-27-october-2006","title":{"rendered":"Soundaram vs Krishnan on 27 October, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
Soundaram vs Krishnan on 27 October, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED :  27\/10\/2006\n\n\nCORAM :\nTHE HONOURABLE MR. JUSTICE S.TAMILVANAN\n\n\nSecond Appeal No.1457 of 1994\n\n\n1.Soundaram\n2.Ismail\t\t...\tAppellants\n\nVs.\n\nKrishnan\t\t...\tRespondent\n\n\n\tSecond Appeal is filed against the Judgment and Decree, dated 28.02.1994\non the file of the Subordinate Judge, Sivaganga in A.S.No.90 of 1991, preferred\nagainst the Judgment and Decree, dated 08.07.1991, made in O.S.No.148 of 1988 on\nthe file of the District Munsif Court, Sivaganga.\n\n\n!For Appellants  \t...\tMr.A.Devaraj for\n\t\t\t\tMr.E.M.Sudarsana Nachiappan\t\t\n\n^For Respondent \t...\tMr.O.Thevan Kumar for\n\t\t\t\tMr.A.Sivaji.\n\n\n:JUDGMENT\n<\/pre>\n
\tThis Second Appeal is directed against the Judgment and Decree, dated
\n28.02.1994, made in A.S.No.90 of 1991 on the file of the Subordinate Judge,
\nSivaganga, reversing the Judgment and Decree, dated 08.07.1991, made in
\nO.S.No.148 of 1988 on the file of the District Munsif, Sivaganga.\n<\/p>\n
2.\tThe brief facts of the case are as follows :\n<\/p>\n
\t\tThe appellants herein are the defendants in the suit. The suit was
\nfiled by the  respondent \/ plaintiff, seeking permanent injunction against the
\ndefendants restraining them from interfering with the right of respondent \/
\nplaintiff and others right in entering into EF portion of the plaint schedule
\nproperty for worshipping the temple of  pathinettam padi karupansamy deity
\ndescribed in the ABCD portion of the suit property.  The ‘ABCD’ portion and the
\nentrance EF portion described in the plaint schedule and shown in the rough
\nsketch is the suit property, which is a part of the property in Door No.72,
\nGandhiji Street, Sivaganga. The respondent \/ plaintiff has stated in the plaint
\nthat pathinettam padi karupansamy is the family deity of the plaintiff, his
\nrelatives and other worshipers and they use to worship the deity at ABCD portion
\nthrough EF entrance portion from the time immemorial to the plaintiff. According
\nto the plaintiff, in the temple house, apart from pathinettampadi karupansamy,
\nthere are other deities namely, Chellayee Amman, Veerapadra Swamy, Ladasannasi,
\nRakkayee Amman, Pechiamman, Samayanaswamy, Kaliammal and that the plaintiff was
\ndoing the activities,  pertaining to the functions and poojas, as one of the
\nimportant persons attached to the temple house. According to him, before filing
\nthe suit, the first defendant attempted to encroach the property belongs to the
\ntemple house on the eastern side and the same was objected to by the respondent
\n\/ plaintiff. Hence, in order to prevent the respondent \/ plaintiff from entering
\ninto the temple house, the first appellant with the assistance of the second
\nappellant, who belongs to muslim religion, attempted to interfere with the right
\nof the plaintiff and others, by making arrangement to close ‘EF’ entrance
\nportion and hence the suit was filed by the respondent \/ plaintiff, seeking
\npermanent injunction.\n<\/p>\n
\t3. According to the first appellant \/ first defendant, the entire
\nproperty, including the suit property was originally belonged to one Kalamegam
\nand his brothers Narayanan and Chellamuthu. After the demise of Kalamegam, his
\nwife Parvathiammal and their adopted son Thirugnanasambandam, husband of the
\nfirst defendant were enjoying the property jointly with the said Narayanan and
\nChellamuthu. Parvathi Ammal subsequently purchased the share of Narayanan in the
\nsuit property from his wife Meenakshi Ammal and his daughter Muthulakshmi on
\n11.01.1954. Similarly, Parvathi Ammal purchased the share of Chellamuthu Pillai
\nfrom his legal heirs under the sale deed, dated 03.11.1955. The first defendant
\nwould further state that the ABCD portion shown in the plaint schedule was the
\nroom used for worshiping the deity, by Kalamegam and his brothers Narayanan and
\nChellamuthu, after selling the share, the said Narayanan and Chellamuthu never
\nused the room for worshiping the deity and  her husband Thirugnanasambandam
\ninherited the property as adopted son of late Parvathi Ammal and after his
\ndeath, the first defendant was in possession and enjoyment of the property as
\nabsolute owner and that the second defendant purchased the front portion of the
\nproperty in Door No.72 and the same was in possession and enjoyment of the 2nd
\ndefendant. According to the first appellant \/ first defendant, the respondent \/
\nplaintiff had no right what so ever, in the suit property and she has prayed for
\ndismissal of the suit. The second defendant adopted the plea of the first
\ndefendant.\n<\/p>\n
\t4. On the side of the plaintiff, the respondent \/ plaintiff was examined
\nas P.W.1, apart from the witnesses P.W.2 to P.W.6. Exs.A1 to A18 were also
\nmarked on the side of the respondent \/ plaintiff. On the side of the appellants
\n\/ defendants, both of them were examined as D.W.1 and D.W.3, and one
\nAnanthanarayanan was examined as D.W.2, apart from marking the documents, Exs.B1
\nto B43.  An Advocate Commissioner was appointed, who inspected the property
\nfiled his report and plan, which were marked as Exs.C1 and C2.\n<\/p>\n
\t5. The trial court after considering the oral and documentary evidence and
\nthe arguments advanced by both sides, dismissed the suit with costs. Aggrieved
\nby which the plaintiff preferred the first appeal before the Sub Court,
\nSivaganga. The first appellate court considering the evidence on record and the
\narguments advanced by both sides, reversed the Judgment and Decree passed by the
\ntrial court and decreed the suit as prayed for with costs. Against which this
\nSecond Appeal has been preferred by the defendants in the suit.\n<\/p>\n
\t6. This Second Appeal has been admitted on the following Substantial
\nQuestion of Law :\n<\/p>\n
\t\t” Whether the first appellate court was correct in reversing the
\nJudgment and Decree of the trial court without considering the documents Exs.B1
\nto B43 ?”\n<\/p>\n
\t7. The learned counsel Mr.M.Devaraj appearing for the appellants contended
\nthat the respondent \/ plaintiff has no loco-standi   or right to seek right of
\nentrance in the ‘EF’ portion stated in the plaint schedule. According to the
\nlearned counsel for the appellants, the lower appellate court was mislead, as if
\nthe subject matter of the suit was a common temple and certain defined group of
\npeople had got right of worship. It was also contended that the lower appellate
\ncourt was mislead by using the word private temple and the ‘EF’ portion as
\npassage to the temple. According to the learned counsel, the lower appellate
\ncourt has not properly considering the totality of Exs.B1 to B43 and it could
\nnot have relied upon Ex.A5.\n<\/p>\n
\t8. The first appellate court has framed the following points for
\ndetermination :\n<\/p>\n
\t\t1. Whether the appellants \/ plaintiffs had no right in the entrance
\nof the suit property ?\n<\/p>\n
2.\tWhether the respondent \/ plaintiff was entitled to permanent injunction as
\nprayed for?\n<\/p>\n
3.\tWhat relief the appellants \/ defendants were entitled to ?\n<\/p>\n
\t9. The first appellate court has held that the respondent\/ plaintiff and
\nother worshipers stated in the plaint are entitled to worship the deity of the
\nsuit temple, by using the ‘EF’ entrance of the suit property. As per the
\nfindings of the court below, Ex.A5 and the other evidence adduced in the suit,
\nwould establish that the plaintiff and others as stated in the plaint were
\nentitled to the suit temple and that the first defendant alone was not entitled
\nto the said suit property and with the above findings, the first appellate court
\nhas reversed the judgment of the trial court and granted permanent injunction in
\nfavour of the respondent\/plaintiff and against the Defendants, restraining them
\nfrom interfering with the right of the plaintiff and other worshipers who are
\nentitled to worship the temple house from entering through the said ‘EF’
\nentrance.\n<\/p>\n
\t10. The learned counsel for the appellants \/ defendants drew the attention
\nof this court to the defendants documents marked as Exs.B1 to B43 and contented
\nthat the first defendant has proved the title and possession of the suit
\nproperty, acquired by her through her husband late Thirugnanasambandam, who was
\nthe adopted son of Parvathiammal. As per Ex.B43, the first appellant sold the
\nfront portion of the property on 17.05.1975 for a sum of Rs.15,000\/- to the
\nsecond defendant and that he was in possession and enjoyment of the said portion
\nof the property.\n<\/p>\n
\t11. Per Contra, the learned counsel appearing for the respondent \/
\nplaintiff drew the attention of this Court to the evidence of the first
\nappellant, who was examined as D.W.1 and the findings of the first appellate
\ncourt based on the evidence. The first appellant as D.W.1 has deposed that
\noriginally the property bearing Door No.72, including the suit property,
\noriginally belonged to one Kalamegam Pillai and his brothers Narayanan and
\nChellamuthu. The legal heirs of  Narayanan Pillai sold their 1\/3rd share under
\nthe sale deed, Ex.B2, to Parvathi Ammal, similarly, Chellamuthu Pillai sold his
\n1\/3rd share to Parvathi Ammal, wife of Kalamegam Pillai under Ex.B4. After the
\nsale, neither Narayanan Pillai, nor Chellamuthu Pillai or their legal heirs had
\nany right in the property.\n<\/p>\n
\t12. According to the first appellant, her husband late Thirugnanasambandam
\nwas the adopted son of Kalamegam and Parvathiammal. After the demise of
\nKalamegam, Parvathiammal died leaving her adopted son Thirugnanasambandam and he
\ndied leaving the first appellant as his legal heir. But in the cross
\nexamination, the first appellant has admitted that  except Ex.B9, there is no
\nother document to show that her husband was the adopted son of Kalamegam Pillai
\nand admittedly, Ex.B9 is the printed marriage invitation of the first appellant
\nand her husband Thirugnanasambandam.\n<\/p>\n
\t13. The first appellate court has given a finding, that Ex.B9, being a
\nprinted invitation is not sufficient to prove the alleged adoption of
\nThirugnanasambandam, husband of the first appellant by Kalamegam Pillai. The
\nfirst appellant has further admitted that in Ex.B2, description of the property,
\nhas been stated as west of the temple house and north of common pathway and that
\nsimilar averments are available in Ex.B4 while describing the four boundaries
\nstated in the documents, it has been admitted that in the suit building, there
\nis a room for worship f family deity. The appellant \/ defendant  has admitted
\nthat there is no document to establish the adoption of Thirugnanasambandam by
\nKalamegam pillai.\n<\/p>\n
\t14. Ex.B1, dated 23.06.1949 is the mortgage deed executed by Narayanan
\nPillai in favour of one Rangasamy Naidu. Ex.A2 is the copy of the sale deed
\nexecuted by Meenakshi Ammal and her daughter in favour of Pavrathi Ammal.
\nSimilarly, under Ex.A3, Chellamuthu Pillai had executed a mortgage deed in
\nfavour of Parvathi Ammal and then under Ex.A4, dated 03.11.1955, a sale deed was
\nexecuted by Chellamuthu Pillai in favour of Parvathi Ammal. Ex.B5 is the copy of
\nthe sale deed executed by the first defendant in favour of the second defendant.
\nEx.B6 is an unregistered agreement said to have been entered into between
\nParvathi Ammal and the first appellant herein on the one side and the second
\nappellant on the other side in respect of a common wall, but, no one has
\nattested this un registered document. In order to prove her possession, the
\nfirst appellant has produced the voters list relating to the legislative
\nassembly election of 1988 and the electric service connection obtained in the
\nname of  Kalamegam Pillai and also the property tax receipts, paid in the name
\nof Kalamegam Pillai and other documents as Exs.B7 to B41. The original of Ex.B5
\nhas been marked as Ex.B43.\n<\/p>\n
\t15. As per the findings of the first appellate court, it has been
\nestablished by the respondent \/ plaintiff  that there was pathinettampadi
\nkarupansamy deity, the big sickle, fixed to the earth, small sickle,
\nDhandayudham, Chellayee Amman, Veerapadra Swamy and other deities \/ other
\narticles and materials which are used for the workship of the deity, were found
\nin the temple room and that the Advocate Commissioner, who inspected the
\nproperty has stated in his report, Ex.C1 that he found pathinettampadi deity, a
\nbig sickle of the deity fixed to the earth and another small sickle, placed near
\nthe deity with Dhandayudham and other materials for worship.  As per the
\nCommissioners Report, there was a framed swamy photo, with the description,
\nwhich shows that it was presented by one Sundaramoorthy on behalf of
\nSundararajan, was found at the ABCD portion of the temple house. The advocate
\ncommissioner has found that there were other deities kept in the temple room for
\nworship. In the said room, the Commissioner had found a tube light, where in he
\nnoticed the words found on the tube light, wherein he noticed that the words
\nfound on the tube light as “presented by Viswanathan”. The  Commissioner has
\nalso stated that in the said room, he could see the footwear of the deity,
\nanglet, bangles and the dresses used for decorating the deity, which were kept
\nin a box and that on the eastern hall, he found a small sickle and a big sickle
\nfixed  to the earth and it was informed that it was Samayanasamy deity,
\nworshipped by them. In the said hall, it is informed that Kaliammal Deity was
\nworshipped long back and he  found symptoms of nails on the wall and sandals and
\nkumkum dots. In another tube light, the Commissioner had found the words that
\nSekar alias Neelamegam presented the same.\n<\/p>\n
\t16. Ex.A5 is a transcribed, certified copy of a document, which was
\noriginally inscribed in palm leaves long back as  per the old tradition. The
\nsame has been certified as true copy, by one S.Sathiah, Special Tahsildar,
\nNatham settlement survey, Manamadurai.\n<\/p>\n
\t17. The first appellant as D.W.1 has admitted in her cross examination
\nthat the clothings and other materials found in wooden box were meant for the
\ndeity, but subsequently, the same were not used for the deities. According to
\nthe respondent \/ plaintiff, pathinettampadi karupansamy is the family deity of
\nthe respondent \/ plaintiff and his family members and his relatives have been
\nthe  worshipers of the deity and the deities stated by him, were found by the
\nAdvocate Commissioner, while inspecting the suit property.\n<\/p>\n
\t18. The first appellate court has found that there is no other way to
\n‘ABCD’ portion, where the deity was found by the Commissioner, as shown in
\nEx.A1, except the EF entrance. The same is not in dispute. As per the
\nCommissioners Report Ex.C1 and Plan Ex.C2, the physical features found therein
\ninclusive of pathinettampadi karupansamy, big sickle fixed to the ground,
\nDhandayudham, small sickle and other items are normally used, for worshipping
\nkarupansamy as family deity, by certain group of families.\n<\/p>\n
\t19. As found by the first appellate court, the physical features of the
\nworshipping room or temple house would show that it could have been used by
\ngroup of persons, as family deity who had common faith in worshipping the deity.
\nIt cannot be acceptable that the first appellant alone was worshipping the
\ntemple and before that Kalamegam Pillai and his two brothers, namely Narayanan
\nPillai and Chellamuthu Pillai were worshipping and that they relinquished their
\nright to worship the deity.  The first appellate court has also considered the
\noral and documentary evidence adduced by both sides and   arrived at a decision
\nthat it was a private temple used by group of persons of various families,
\nhaving common faith and worship. Though the first appellant had produced various
\ndocuments said to have been executed by Narayanan Pillai, Meenakshi Ammal,
\nChellamuthu Pillai, Parvathi Ammal and others, from her custody, it is seen that
\nneither the first appellant, nor her husband  Thirugnanasambandam had been
\ndirect legal heir of Kalamegam Pillai. According to the first appellant, her
\nhusband was adopted by Kalamegam Pillai and Parvathi Ammal. She has also
\nadmitted that for the alleged adoption, except the marriage invitation, Ex.B9,
\nthere is no other document available. In such circumstances, considering the
\nCommissioner’s Report and Plan with reference to Ex.A5, certified copy of the
\ndocument and the evidence of the witnesses, the first appellate court has held
\nthat ‘ABCD’ portion is a private temple \/ worshiping place, for which the
\nrespondent \/ plaintiff and the other similar worshippers had the right of
\nworship, as their family deity by using the EF entrance, as stated in the
\nplaint.\n<\/p>\n
\t20. The first appellate court has held that the plaintiff documents Exs.A1
\nto A18 corroborate the evidence of the witnesses examined on the side of the
\nrespondent\/plaintiff. In Ex.A3, certified copy of the document, dated
\n09.01.1933, relating to the adjacent property and the property therein is
\ndescribed as the property on the north of Rangasamy Pillai’s temple house.
\nSimilarly, in the document  Ex.A4, dated 23.08.1949, it has been clearly stated
\nthat the property described therein was on the north of Kalamegam Pillai vagaira
\ntemple house and the house site of one Sundararajan. It is not the case of the
\nappellant that the property stated in Ex.A3 as Ramasamy Pillai temple house in
\nthe document, dated 09.01.1933, said Kalamegam Pillai vagaira temple house in
\nEx.A4, dated 23.08.1949 are some other properties and not the suit property. The
\noriginal of Exs.A3 and A4 were ancient registered documents, as stated by the
\nlearned counsel for the respondent \/ plaintiff, wherein the suit property is
\nstated as northern boundary and stated as temple-house belonging to Rangasamy
\nPillai vagaira, in Ex.A3 and Kalamegam Pillai vagaira temple house in Ex.A4.
\nTherefore, as found by the court below, the temple house could not be the sole
\nproperty of the first appellant or Parvathi Ammal, wife of Kalamegam Pillai
\nalone. The normal meaning of the term ‘Vagaira’ is ‘group of families’ having
\nblood relationship, or community of people, following certain traditional
\ncustoms and usages.\n<\/p>\n
\t21. Therefore, I am of the considered view that the lower appellate court
\nconsidering the evidence in depth has held that the suit property has been the
\nworshipping family deity of Kalamegam Pillai and his closely related community
\npeople, who worship Karuppanasamy as family deity. It is not in dispute that the
\nrespondent \/ plaintiff,  namely Krishnan son of Manickam Pillai belonged to the
\nsame ‘pillai’ community as Kalamegapillai and Ramasamy Pillai.\n<\/p>\n
\t22. P.W.2, Sundararaja Pillai has deposed that the first appellants
\nhusband Thirugnanasambandam, was his elder sister’s son, who was not adopted by
\nKalamegam Pillai and that he knew Kalamegam and the suit property. His
\nresidential house was also behind the suit temple-house and as such he knew the
\nfacts. According to him, the suit temple was used for worshipping the family
\ndeity and they used to go to the deity through the ‘EF’ suit entrance. P.W.3 has
\nalso stated that the deity in the temple-house, being  worshipped by the close
\nrelatives of Kalamegam Pillai, and the same was not the exclusive property of
\nKalamegam Pillai or any other person. P.W.2 has deposed that he is the brother
\nof the respondent \/ plaintiff Krishnan and also related to the first appellant \/
\ndefendant.  According to him, he is related to the appellant \/ defendant as
\nuncle and has categorically deposed that the suit temple house was used for
\nworshipping their family deity of pathinettampadi karupansamy and other idols.\n<\/p>\n
\t23. The oral evidence supported by other evidence and the physical
\nfeatures noted by the Advocate Commissioner would cumulatively establish that
\nthe first appellate court has given its finding based on the available evidence
\nand therefore, it cannot be said that the first appellate court has not
\nconsidered the documents Ex.B1 to B43, while recording its finding, and
\ntherefore, I am of the view that the finding of the court below is not perverse,
\nsince the same is based on the evidence available on record.\n<\/p>\n
\t24. Therefore, I am of the considered view that the first appellate court
\nhas properly gone into the evidence at length and as there is no perverse
\nfinding, in the light of the decision of the Honourable Supreme Court of India
\nreported in 2001 (5) SCC 705 (Deena Nath v. Pooran Lal),<\/a> this court cannot
\ninterfere with the findings in the second Appeal as per Section 100 of the Code
\nof Civil Procedure and hence, the Second Appeal fails.\n<\/p>\n
25. In the result confirming the Judgment and Decree passed by the first
\nappellate court, this Second Appeal is dismissed.\n<\/p>\n
tsvn<\/p>\n
To<\/p>\n
1. The Subordinate Judge
\n    Sivaganga.\n<\/p>\n
2. The District Munsif Court
\n    Sivaganga.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Soundaram vs Krishnan on 27 October, 2006 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27\/10\/2006 CORAM : THE HONOURABLE MR. JUSTICE S.TAMILVANAN Second Appeal No.1457 of 1994 1.Soundaram 2.Ismail … Appellants Vs. Krishnan … Respondent Second Appeal is filed against the Judgment and Decree, dated 28.02.1994 on the file […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-140595","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSoundaram vs Krishnan on 27 October, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/soundaram-vs-krishnan-on-27-october-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Soundaram vs Krishnan on 27 October, 2006 - 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