R.M.Constructions v. Chillaraikadai alias Mannadi Marudhukkadaikar Chatram

For Appellant : Mr.M.S.Krishnan, Senior counsel for M/s.SaravabhaumanAssociates For Respondent-1 : Mr.M.SundarFor Respondent-2 :No appearance J U D G M E N TV.PERIYA KARUPPIAH.,J This appeal is directed against the order of the learned SingleJudge passed in O.A.No.305 of 2008 along with A.No.2477 of 2008 inC.S.No.282 of 2008, dated 21.08.2009.

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.

For convenience sake, the rank of parties in the suit are maintained in this judgment.

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 and1167 in 140, Thiruvanmiyur Village, Chennai -41, admeasuring 31 cents of land and for costs.

The plaintiff has also filed an application in O.A.No.305 of2008 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 andenjoyment1 of the schedule property situated at Nos. 14 and 15, EastMada Street, Thiruvanmiyur, Chennai – 41 comprised in S.No.193/7comprising in Pymash Nos. 1165, 1166 and 1167 in 140, ThiruvanmiyurVillage, Chennai -41, admeasuring 31 cents of land, pending disposal of the suit.

The brief facts of the case of the applicant / plaintiff asset out in the application in O.A.No.305 of 2008 is as follows:- https://hcservices.ecourts.gov.in/hcservices/

6.(i) The applicant / plaintiff is a specific Endowmentwithin the meaning of Section 6 (19) of the Tamil Nadu HinduReligious 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 duringBrahmmotsavam 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 aperiod 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 videorder dated 02.01.2008 appointed the Executive Officer of the saidTemple (ex-officio) as Fit Person of the applicant / plaintiffEndowment under the proviso to Section 47(1)(c) of the said Act.

Thesaid order is in vogue and the administration of the PlaintiffEndowment is vested in the said Fit Person.6.(iii) The schedule mentioned property is comprised inS.No.193/7 and 140, Thiruvanmiyur Village, Chennai -41, admeasuring31 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 5tenantable portions are vacant.6.(iv) The Deputy Commissioner, HR & CE Departmentinitiated suo motu proceedings under Section 63 of the said Act inO.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 aspecific Endowment under Section 6(19) of the said Act.

An appeal was preferred in A.P.No.65 of 1963 against the above order. TheCommissioner, HR & CE Department, by order dated 30.07.1964 dismissed the appeal and confirmed the order of the Deputy Commissioner. ThisOrder has been given legal quietus and finality.6.(v) In the meanwhile, the 1st defendant herein filed asuit in O.S.No.1184 of 1971 on the file of the II Additional DistrictMunsif, 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 https://hcservices.ecourts.gov.in/hcservices/ 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 SubordinateJudge'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 itis 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 asif 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 inA.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 inS.A.No.2054 of 2003 before this Hon'ble Court. The Hon'ble Court byan 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 whicha 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 https://hcservices.ecourts.gov.in/hcservices/ 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.

The brief facts of the case of applicants/defendants 2 and 3in 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 inS.No.193/7. The present system being followed by the RevenueDepartment for Thiruvanmiyur Village is based on Block Numbers and Town Survey Numbers. Paimash Numbers are converted into SurveyNumbers. Subsequently, Survey Numbers are converted into BlockNumbers 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 07.08.1996issued by the Deputy Tahsildar, Tiruvannamalai gives a comparative table between Paimash Numbers and corresponding Survey Numbers with reference to Thiruvanmiyur Village.

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 inrem. 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 appellateCourt, but pending in Second Appeal before this Court, clearly shows that the real owner is the second respondent. It was also stated thata 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 processof law. The present suit which is for a bare injunction without adeclaratory relief is bad in law.

The averment in the counter of the firstrespondent/plaintiff in A.No.2447 of 2008 are as follows: The first respondent/plaintiff denied all the allegations made inA.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/manaivaadagairegister 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.

On perusal of the records produced by the plaintiff and the affidavit submitted in support of the application, the learned SingleJudge had passed an order of ad-interim injunction exparte. Thedefendants 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. https://hcservices.ecourts.gov.in/hcservices/

Aggrieved against the said order, the defendants 2 and 3(appellants) have preferred this present appeal.

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.

The learned Senior Counsel appearing for the appellants would submit in his argument that the appellants are the defendants 2and 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 arelease 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 2and 3 acquired title to the said property. He would also submit that the first defendant was having patta in his name even from the year1976 and he had also mortgaged the land comprised in S.No.193/7 toone 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.

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, EastMada 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 Endowmentmade for the purpose of celebrating the 6th day Bavani Festival and also for poor feeding during the Mahotsavam Festival of ArulmighuMarundheeswarar Temple, Thiruvanmiyur and it was dedicated long backand 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 https://hcservices.ecourts.gov.in/hcservices/ 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.

We have given anxious consideration to the arguments advanced on both sides.

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 theplaintiff's peaceful possession and enjoyment of the plaint schedule property being Nos.14 and 15,East Mada Street, Thiruvanmiyur, Chennai – 41comprised in S.No.193/7 and 140, ThiruvanmiyurVillage, Chennai -41, admeasuring 31 cents of land; and (b)for costs of the suit to be paid by defendants to plaintiff ."

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 4/2in 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 & CEDepartment. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 apatta 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.

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 primafacie case has been established on the side of the plaintiff to grant the relief of temporary injunction. However, the learned SingleJudge has come to a conclusion that the plaintiff has got prima faciecase 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.

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 EastMada 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 PaimashNos.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 MannadiMarudhukkadaikar Chatram.

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 of1971 on the file of the II Additional District Munsif, Poonamalleefor 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. Itis also true that the first defendant, who was claiming to be thepatta-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 SecondAppeal 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.

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 https://hcservices.ecourts.gov.in/hcservices/ 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.A11which 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, 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 https://hcservices.ecourts.gov.in/hcservices/ 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.

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.

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, weare of the considered view that the learned Single Judge is quite right in granting an absolute temporary injunction by making the adinterim 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. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarmraToThe Sub Assistant RegistrarOriginal Side, High Court, Chennai - 104.+1 CC to M/s.Sarvabhauman Associates, Advocate, S.R.No.33555+1 CC to M/s.M.Sundar, Advocate, S.R.No.33346Pre-delivery judgment made inO.S.A.No.34 of 2011SAI(CO)SRA(01/8/2011)