Madras High Court
A.Palanivel vs Subramani @ K.S.Mani on 6 December, 2021
C.R.P.(NPD) (MD) No.2531 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(NPD) (MD) No.2531 of 2015
A.Palanivel .. Petitioner/Petitioner/
Appellant
-vs-
Subramani @ K.S.Mani .. Respondent/Respondent/
Respondent
Prayer :- Petition filed under Article 227 of the Constitution of India to
set aside the fair and decretal order dated 07.01.2015 made in I.A.No.146
of 2014 in A.S.No.21 of 2013 on the file of the learned Principal District
Judge, Thanjavur.
For Petitioner : Mr.B.Jameel Arasu
For Respondent : Mr.P.Sesubalan Raja
******
ORDER
The appellant, in A.S.No.21 of 2013, on the file of the learned
Principal District Judge, Thanjavur, is the revision petitioner before this
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) (MD) No.2531 of 2015
Court challenging the order passed by the learned Judge dismissing his
application in I.A.No.146 of 2014 in A.S.No.21 of 2013. This
application was filed by the petitioner/appellant for impleading the
proposed 2nd respondent/temple.
2.A.S.No.21 of 2013 was filed by the petitioner herein challenging
the judgment and decree in O.S.No.26 of 2008, dated 25.03.2013 of the
learned Additional Sub Judge, Kumbakonam.
3.O.S.No.26 of 2008 was filed by the respondent herein seeking
delivery of vacant possession of the suit property; and for a direction to
the defendant to pay past profits for three years preceding the suit and
future profits from the date of plaint till the date of delivery of
possession; and consequently for a direction to the defendants to return
the movables mentioned in the schedule or its value; and for costs.
4.For the sake of convenience, the parties shall be referred to as
per their rank in the suit in O.S.No.26 of 2008.
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) (MD) No.2531 of 2015
5.The brief facts are as follows:-
5.1.The suit site admittedly belonged to Arul Mighu Srinivasa
Perumal Temple (the proposed party). However, the superstructure
thereon was constructed by the plaintiff's vendor, Krishnamurthy. The
lease in respect of the site stood in the name of Swaminathan's son. The
plaintiff had purchased the superstructure and the lease over the site. The
defendant, the plaintiff's employee, was put in permissible occupation of
the suit property, as the plaintiff was impressed with his loyalty, sincerity
and hard work. The defendant had been working under the plaintiff from
the year 1995 onwards.
5.2.The plaintiff would state that he had purchased a site in the
name of the defendant and helped him in constructing a house and after
the defendant had constructed a house, the defendant had vacated the
plaintiff's property in the year 2002 and started residing in his own
property in Thirunaraiyur. Therefore, from the year 2002, the defendant
has not been residing in the suit property. The plaintiff leased out the
shop, residential portion and the brass lamp smithy to various persons.
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) (MD) No.2531 of 2015
6.While so, the defendant, taking advantage of certain documents
in his custody, filed O.S.No.24 of 2005, on the file of the learned District
Munsif, Valangiman, for a permanent injunction, as he was in possession
and enjoyment of the suit property. Though the plaintiff had contested
the suit, the suit came to be decreed in favour of the defendant and the
appeal filed by the plaintiff in A.S.No.59 of 2006 on the file of the Sub
Court, Kumbakonam also ended in dismissal. The defendant, thereafter,
had filed the suit as if he was an oral usufructory mortgagee, who had
parted with a sum of Rs.1,00,000/-. Though the Courts had held that the
defendant had failed to prove the above, however, since the plaintiff had
admitted his possession upto the year 2002, but had failed to prove that
the defendant had vacated the premises, the suit in O.S.No.24 of 2005
was decreed in favour of the defendant.
7.In the light of the above circumstances, the plaintiff had come
forward with the present suit for recovery.
8.The plaintiff would contend that the defendant's contention that
he was a usufructory mortgagee in the earlier suit has been rejected and
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) (MD) No.2531 of 2015
therefore, there was no impediment in granting the relief of possession
back to the plaintiff.
9.The suit was decreed and challenging the same, the defendant
has filed A.S.No.21 of 2013.
10.Pending the appeal, the impugned application was filed by the
defendant seeking impleadment of the proposed temple by stating that
the temple was a proper and necessary party and they ought to have been
impleaded.
11.The plaintiff had contended that the learned Additional
Subordinate Judge, Kumbakonam by judgment and decree dated
25.03.2013 was pleased to decree the suit as prayed for. One of the
issues that has been raised by the learned Additional Subordinate Judge
is whether the suit is hit by non-joinder of necessary parties. The learned
Additional Subordinate Judge has clearly held that the dispute between
the parties was only with regard to the superstructure. Both had agreed
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) (MD) No.2531 of 2015
that the land belonged to the temple. Therefore, the Court below had
held that the suit was not bad for non-joinder of necessary parties. The
judgment and decree has been taken on appeal by the defendant in
A.S.No.21 of 2013 before the Principal District Judge, Thanjavur. It is
pending the appeal, this application to implead the temple has been
taken. The same has been rejected by the learned Principal District
Judge, Thanjavur and challenging the same, the defendant is before this
Court.
12.Heard the learned counsel.
13.This Court is of the considered view that the defendant had
taken out this application to implead the temple on the ground that the
land upon which the superstructure is constructed belonged to the
temple. This defence has been taken by the defendant in his written
statement and an issue had also been framed. The learned Additional
Subordinate Judge, Kumbakonam, has given a finding that the dispute
between the parties was not with reference to the land, but was only with
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) (MD) No.2531 of 2015
reference to the superstructure and therefore, the suit was not bad for
non-joinder of necessary parties. After the learned Judge has held so, the
present application to implead the temple is nothing but an attempt to
protract the proceedings. That apart, the plaintiff, who is the dominus
litus can choose the parties against whom, he seeks a relief. Admittedly,
the land belongs to the temple and the plaintiff is claiming recovery of
possession in respect of the superstructure, in which, he had permitted
the defendant to be in possession.
14.In the light of the above discussion, I do not find any infirmity
in the order dated 07.01.2015 passed by the learned Principal District
Judge, Thanjavur in I.A.No.146 of 2014 in A.S.No.21 of 2013 and
consequently, this Civil Revision Petition stands dismissed. There shall
be a direction to the learned Principal District Judge, Thanjavur, to
dispose of the appeal within a period of three months from the date of
receipt of a copy of this order. No costs.
06.12.2021
abr
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) (MD) No.2531 of 2015
P.T.ASHA, J.
abr
Note:-
In view of the present lock down owing
to COVID-19 pandemic, a web copy of
the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
Advocate / litigant concerned.
To
The Principal District Court, Thanjavur.
C.R.P.(NPD) (MD) No.2531 of 2015
Dated: 06.12.2021
_________
https://www.mhc.tn.gov.in/judis
