High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:19.02.2007Coram:The Honourable Mr.Justice J.A.K.SAMPATH KUMARA.S.No.469 of 19931. Subramaniam2. Rajaram3. Rani4. Rajagopal5. Krishnan6. Gnanapragasam7. D.Raju8. Vadamalai9. Sambandamurthy10.Sinnaraj11.Thangavel Asari12.Thulasingam13.Thangaraj14.Natesa Pather15.Muthuvel16.Soosainathan17.Kaliyan18.Lakshmi19.Dhandapani20.Mangalakshmi21.Palani22.Subramanian23.Sivalingam24.Arumugam25.P. Kannan26.V. Kannan27.Arunachalam28.Durairaj29.Balu Pathar30.Selvaraj31.Sankaralingam32.Balakrishnan33.Ramalingam34.Natarajan35.Kaliyan36.Devaraj37.K.Ramadoss38.Ramasami https://hcservices.ecourts.gov.in/hcservices/

39.Govindammal40.Sathyamoorthy41.Subramanian42.Perumal43.Panchatcharam44.Krishnamoorthy45.Sekar46.Ashok47.Veerappan48.Kannan49.Sanjeevi50.Kumarasami51.Jayaraman52.Kaliyan53.Mohan54.Rathinambal55.Baskaran56.Kaliyaperumal57.Neelamegam58.Devaki59.Palani60.Gajendran61.Kumar62.Valli63.Kothandam64.Murugan65.Rukmani66.Kumarasami Pathar67.Kannan68.Mumtaz69.Mani Achari70.Sadasivam71.Thiagarajan72.Lakshmi Ammal73.Pattammal74.Ramakrishnan75.Babu..Appellants 1 to 75/ Defendants 1 to 19, 21 to 63,65 to 77..vs..1.Sri Devanathaswami Devasthanam,represented by its ExecutiveOfficer Sri.S.Veerappan.2.Osai Mani..Respondents / Plaintiff and 64th defendant. https://hcservices.ecourts.gov.in/hcservices/ Appeal is filed against the Judgment and decree dated28.02.1991 made in O.S.No. 3 of 1987 on the file of the PrincipalSubordinate Judge, Cuddalore.For Appellants : Mr.M.N.Padmanabhan, Senior Advocate for M/s. Mr.M.N.Muthukumaran and Mr.S.PalanisamyFor Respondents : Mr.R.Sunilkumar for Mr.Yashod VaradhanJUDGMENTThis appeal is filed against the judgment and decree dated28.02.1991 in O.S.No.3 of 1987 on the file of the PrincipalSubordinate Court, Cuddalore, in and by which the learned Sub Judgeafter analyzing the evidence in depth decreed the suit as prayedfor. 2. For convenience, the parties are referred as arrayed in thesuit.3. The plaintiff states as follows: The suit property, which was originally comprised in SurveyNo.32, was subsequently sub-divided into 32/1 and 32/2. Later, aportion of the land in the sub division has been acquired by theGovernment along with the other items in R.S.29 for a publicpurpose of locating a Government Basic Girls' Training School. Theproperty is situate on the road leading to Thiruvendhipuram, fromTiruppapuliyur in continuation of the Lawrence Road and SubbarayaChetty Street and surrounded on all sides by houses and housesites. Though, originally it was classified as arable land andwas really leased out as agricultural land for agriculturalpurposes, it has ceased to be used as such by the temple as theadjacent properties forming one block have been acquired by theGovernment as aforesaid for building purposes. The suit property,therefore, is now fit only as house sites.4. The Masimaha Mandapam, constructed in the suit plot is used forthe purpose of the Mandagapadi endowed for that purpose by oneVenkatasami Naicker when the deity which is taken from the templeto the sea on the 'MASIMAHAM DAY' is made to rest for a while atthe Mandapam and during the period or rest palanquin bearers andother followers accompanying the deity, used the suit property asplace of rest. https://hcservices.ecourts.gov.in/hcservices/

5. While so, the defendants who had been unauthorisedlyoccupying the Highways Road by putting up thatched houses along theroad by encroaching thereon were evicted by the HighwaysDepartment. The defendants thereupon in a body removed all theirbelongings and with materials of the sheds they had put on theroad, they unauthorisedly trespassed upon the suit property aboutsix years back and indiscriminately put up thatched houses on thesuit property. They had no right to occupy the property belongingto the temple without the knowledge or consent of the templeauthorities. The plaintiff issued notices to defendants on18.7.1984, but they have not cared to either comply with thedemands in the notices or send a reply.6. The defendants are mere trespassers and they have no rightto occupy the suit property belonging to the temple. The plaintiffis not able to predicate to each defendant the respective portionof the property in their enjoyment but they have all constructedtheir houses within the area comprised in the suit property.Since the relief of recovery of vacant possession of the suitproperty from the defendants arises out of a series of acts oftrespass committed by the defendants in common concert and ifseparate suits are brought against each of them, common question oflaw and fact would arise all these defendants are joined togetheras per order I Rule 3 of C.P.C. Hence, the suit.7. The written statement of Defendants 4,49 and 71, adoptedby the Defendants 9 and 77, reads as follows:The plaintiff is not entitled to file a suit for mere recoveryof possession. Such a suit is not maintainable and, however,barred by limitation. It is true that the suit property is now fitfor house site only. The suit property does not belong to theplaintiff nor there was any endowment in favour of the plaintiff inrespect of the suit property. Hence, the plaintiff is not at allentitled for relief of recovery of possession.8.These defendants and their predecessors in the family settledin the suit property from time immemorial and their possession andenjoyment is supported by evidences for atleast 30 to 40 years.These defendants are in possession and enjoyment of the suitproperty openly, adversely and continuously for more than 30 yearsand they have prescribed title to the property by adversepossession. https://hcservices.ecourts.gov.in/hcservices/

9. The defendants' enjoyment is substantiated by enrolment inElection Roll and by various implementation of Government Scheme.The defendants have formed a society by name 'Bharathi Nagarkoothapakkam, Kudisai Vazhvour Sangam ' which is representing thesuit property and the local authority is providing roads,electricity and water to the suit property for more than 15 years.The Government of TamilNadu and the defendants have spent severallakhs of rupees for promoting the suit property into a habitablecolony and the plaintiff has at no point of time asserted its titleor interference. Hence, the suit is liable to dismissed.10. One Mr. Veerappan was examined as PW.1. Ex.A1 to Ex.A5were marked on the side of the plaintiff. Defendants 68,71,50,57and 53 were examined as DW.1 to DW.5; Defendants67,58,76,14,37,17,26,56,34,72,28,60, 1,35,13,55,46,45,65,63,66,2,5,6,18,31,52,and 70 were examined as DW.7 to DW.34; Defendants67,74,44,27,41,61,7,32 and 25 were examined as DW.36 to DW.44. 49thdefendant was examined as DW.48. M/s.Rajagopal, Devaki, Anjammal,Sivalingam, Govindammal and Jacob were examined as DW.6, DW.35,DW.45, DW.46, DW.47 and DW.49 respectively. Ex.B1 to Ex.B246 weremarked on the side of the defendants to confront the claim of theplaintiff.11. The Lower Court after analyzing both oral and documentaryevidence in depth found that the plaintiff is entitled to suitclaim and accordingly decreed the suit. The present appeal isfiled, against the said judgment and decree, by the defendants.12. Heard Thiru. M.N.Padmanabhan, the learned senior counselfor appellants and Thiru. R.Sunilkumar, the learned counsel forrespondents.13. Upon hearing the rival claims, the points fordetermination are:-1)Whetherthe defendants are the trespassers inthe suit land?2)Whether the plaintiff is the owner of thesuit property?3)Whether the plaintiff is entitled to protection under Section 109 of the TamilNaduHindu Religious and Charitable Endowment Act?4)Whether the findings of the Lower Court indecreeing the suit is in order? https://hcservices.ecourts.gov.in/hcservices/

14. Point No.1:- Even according to the pleadings of the defendants they arenot the owners of the land. The defendants submitted that theyare the trespassers in the suit property. The defendants admittedthat their predecessors have settled in the suit property from timeimmemorial. They also admitted that they are in possession of thesuit property at least for 30 to 40 years. I am satisfied thatthe defendants are the trespassers in the suit property andoccupying the same against the interest of the plaintiff. Hence,this point is answered accordingly.15. Point No.2: It is the specific case of the plaintiff that they are theabsolute owners of the suit property. They examined PW.1 andmarked Ex.A1, Ex.A2 and Ex.A5 to prove that the plaintiff are theabsolute owners of the suit property. In fact, the plaintiffclaim absolute right of the suit property and issued a lawyer'snotice to the defendants to vacate and hand over the suit property.Ex.A3 is the copy of the said notice. The defendants acknowledgedthe said notice. Ex.A4 is the proof to this effect. Theplaintiff have asserted the title in respect of the suit property,which was not confronted by the defendants though they received thesaid notice from the plaintiff. The learned counsel for theappellants/defendants would contend that the ownership of the landby the plaintiff was not proved by any title deed. So, I have tofind out whether the objection of the learned counsel for theappellants/defendants with regard to the title of the suit propertyby the plaintiff can sustain. Ex.A1 is the H.R & C.E. Proceedings.The said proceedings is dated 17.8.49/09.09.49. According to thesaid proceedings, the plaintiff is the absolute owner of the suitland. Ex.A2 is the Patta for the disputed land in the name of theplaintiff. Ex.A5 is the Chitta for the suit land in favour of theplaintiff. These documents would show that the plaintiff is theabsolute owner of the suit property.16. The first page of Ex.A1 reads as follows:"PROCEEDINGS OF THE ASSISTANT COMMISSIONERPresent: Sri A.Ramachandran, M.A., B.L., Assistant Commissioner.In Re: Sri Devanayakaswami Temple, Trivendipuram Village, Cuddalore Taluk, South Arcot District. https://hcservices.ecourts.gov.in/hcservices/ Sub : Register of Properties – Approved by the Board – Forwarded and Directions issued.Ref: Board's Order No. 4394 G Dated 17.8.49 Order No.174 Dated 8.9.49...1. Recorded.2. One copy of the Register is forwarded to thetrustee of the above temple who is required tohave the register annually verified underSection 39 of the Act and to report additionsand alterations if any for the approval of theBoard. Sd.A.Ramachandran. Assistant Commissioner./Forwarded By Order//sd/ xxxxxx9.9.49 HEAD-CLERKksrToThe Trustee of Sri etc.,Encl: One Register.This Register is of the year 1949. In this register, it isspecifically stated that the suit property belongs to the plaintifftemple. In pursuance of ownership of the land in the name of theplaintiff, patta was also issued. Ex.A2 is the Patta. Theplaintiff have been paying necessary kists for the suit property.Ex.A5 is the copy of Chitta Register. The above documents on theface of it would prove that the plaintiff is the owner of the suitproperty ever since 1949. The defendants are not claiming title tothe suit property. They are also not claiming right to theproperty by virtue of any registered document. They have not setup any right to suit property in favour of third parties. Thedefendants can claim right of adverse possession only against thelawful owner. The defendants at one stage claim right of adversepossession in respect of the suit property. At the same time,they are disputing the title of the plaintiff which they are notsupposed to do so as they claim right of adverse possession onlyagainst the lawful owner. The Lower Court also considered thesedocumentary evidence, rightly held that the plaintiff are theowners of the property. The Counsel for the appellant in factrelied on the decision reported in https://hcservices.ecourts.gov.in/hcservices/ 1)"Jagadish Narain ..vs.. Nawab Said Ahmed Khan"reported in "A.I.R (33) 1946 Privy Council Page59";2)"Moran Mar Basselios Oatholicos and another ..vs.. Most Rev.Mar Poulosoe Athanasius andothers" reported in "A.I.R 1954 S.C Page 526";3)" Smt. Sawarni ..vs.. Smt. Inder Kaur andothers" reported in 1996 (6) S.C.C Page 223;4)" Sankalchan Jaychand Bhai Patel and others ..vs.. Vithalbhai Jaychand Bhai Patel and others"reported in "1996 (6) S.C.C Page 433";5)"Balwant Singh and another ..vs.. Daulat Singh(Dead) by Legal Representatives and others"reported in " 1997 (7) S.C.C Page 137";6)"Arasappan Karayalar and another ..vs..Subramania Karayalar" reported in "2001-1 L.WPage 724";7)" N.S. Spance ..vs.. D.S. Kanagarajan andanother " reported in "2005 (1) C.T.C Page494";8)"Kartari Devi and others ..vs.. UdhamSingh and others " reported in "A.I.R 1997Himachal Pradesh Page 70";9)"Dhanapal Chettiar and others ..vs..Govindaraja Chetty and others" reported in"A.I.R 1961 Madras Page 262";10)"Secretary of State for India in Council ..vs.. Debendra Lal Khan" reported in "1934 L.WPage 257 (Privy Council)";11)"Munshi Bashir Ahmad ..vs.. NederlandscheHandel Maatschapij" reported in "A.I.R. 1937Rangoon Page 180";12)" Kuppuswami Nainar ..vs.. The DistrictRevenue Officer, Thiruvannamalai and others"reported in "1995-1 M.L.J Page 426"; https://hcservices.ecourts.gov.in/hcservices/ 13)"Guruvammal and another ..vs.. SubbiahNaicker and 5 others" reported in "2000 -1 L.WPage 488".and contended that unless the plaintiff proves title to theproperty by documentary evidence, they cannot maintain the suit.I have carefully gone through the facts referred in thosedecisions. The facts referred in these decisions are withreference to the rival claims of the parties to the proceedings.Each one claim independent right by virtue of documentaryevidences. Only in such contingencies, findings rendered in thosedecisions.17. Here is the case where the plaintiff alone claims title tothe suit property by virtue of documents. No one claims title tothe suit property by virtue of any documents. It is also not thecase of the defendant that some one claim right of ownership of thesuit property. The defendant is also not claiming title of theproperty by virtue of any document. In fact, the learned counselfor the respondent/plaintiff relied on the following decisions toconfront the claim of the appellants/defendants.1)"Santhakula Sowmiyanarayana KavarayaCommunity Endowments, through its trusteesM.K.Perumal and another ..vs.. VellayappaPillai and others " reported in "91 L.W Page285";2)"Rajanarayana Perumal Temple, Melaiyur,Sirkali Taluk, by its Executive Officer ..vs.. Rethinam Pillai" reported in "1979-1M.L.J Page 159";3)"Naganna B. Ningappa ..vs.. Shivanna B.Ningappa" reported in "A.I.R 2004 KarnatakaPage 209";4)"Govindaswamy ..vs.. Mottayan Chettiar"reported in "1968-II M.L.J (Notes of RecentCases) Page 83";5)"C.R. Palanidoss and 5 others ..vs..S.Arumugham and 11 others" reported in "2003(2) C.T.C Page 10".18. Admittedly, the suit property belongs to ReligiousInstitutions. As per the principle of 'parent patriarch' court isthe custodian of the idol property. The disputed land belongs to https://hcservices.ecourts.gov.in/hcservices/ the idol. The documentary evidence would show that the suitproperty belongs to the idol. So, the decision relied on by thecounsel for the respondent/plaintiff squarely applicable to thecase on hand. Since, the cases referred in decisions cited by thecounsel for the appellants/defendants are not related to the factson hand, I am of the view that the said decisions are notapplicable to the case on hand. Hence, this point is in favour ofthe plaintiff. 19. Point No.3:It is the specific case of the defendant that they derivedtitle to the property by way of adverse possession. They alsorelied on documents Ex.B1 to Ex.B246 in support of their claim.The learned counsel for the respondent/plaintiff drew my attentionto section 109 of the Tamil Nadu Hindu Religious and CharitableEndowment Act, 1959 and submitted that the temple land is protectedunder the said section. Originally, this act came into force from19.11.1959 onwards. The law prevails at that time is as follows:"Sec.109 of the Principle Act109. Property of religious institution not tovest under the law of limitation after the 30thSeptember 1951:- Nothing contained in any law oflimitation for the time being in force shall bedeemed to vest in any person the property orfunds of any religious institution which had notvested in such person or his predecessor-in-titlebefore the 30th September,1951."20. There is nothing to show that the defendants were inpossession of the disputed property before 30.9.1951. Thedocuments filed by the defendants also would not show that thedefendants were in possession of the disputed property even priorto 30.9.1951. Subsequently, the law changes and section 109 ofthe said Act has been amended and it has given effect from1.9.2003. It reads as follows:"109. Central Act 36 of 1963 not to apply forrecovery of properties of religiousinstitutions :- Nothing contained in thelimitation Act, 1963 (Central Act 36 of 1963)shall apply to any suit for possessionImmovable properties belonging to anyinstitutions or for possession of any interestor of any interest in such property."In such view of the fact, Limitation Act 1963 is not applicable tothe properties of the Religious Institutions. The Lower Court hasalso dealt this point in that line and rightly answered in favourof the plaintiff. There is no error or illegal in the findings ofthe Lower Court in this regard. I do not find any infirmity orimpropriety in the findings of the Lower Court in this regard. Thefindings of the Lower Court is in order and does not require any https://hcservices.ecourts.gov.in/hcservices/ interference. Hence, this issue is answered in favour ofplaintiff. 21. Point No.4:In view of the findings rendered in Points 1 to 3, I amsatisfied that the Lower Court hasrightly answered in favour ofthe plaintiff and decreed the suit. There is no error or illegalin the findings of the Lower Court in this regard. I do not findany infirmity or impropriety in the findings of the Lower Court inthis regard. The findings of the Lower Court is in order and doesnot require any interference. Hence, this issue is answered infavour of plaintiff. 22. In the result, this appeal fails and accordingly dismissed.However, the parties have to bear their respective costs.Connected C.M.P stands dismissed.mraSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo 1.Principal Subordinate Judge, Cuddalore.2.The Section officer, VR Section, High Court, Madras.+ one cc to Mr. R. Yashod Vardhan, Advoate sr no. 9694PV(CO)NM(03.04.07)A.S.No.469 of 1993