Madras High Court
Kanagasabapathy vs Sri Meenakshi Sundareswarar on 6 December, 2021
C.R.P.(NPD) (MD) No.2524 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.2524 of 2015
and
M.P.(MD) No.1 of 2015
Kanagasabapathy .. Petitioner/Petitioner/
Defendant
-vs-
Sri Meenakshi Sundareswarar,
Sri Meenakshi Sundareswarar Temple,
Pachoor, Kovathakudi Village,
Mannachanallur Taluk,
Trichy District.
A private family Temple,
Rep., by its present
Private Family Hereditary Trustee,
V.Vijayakumar .. Respondent/Respondent/
Plaintiff
Prayer :- Petition filed under Article 227 of the Constitution of India to
set aside the fair and decreetal order dated 15.09.2015 made in I.A.No.
896 of 2015 in O.S.No.186 of 2011 on the file of the District Munsif
Court, Lalgudi, Trichy District.
For Petitioner : Mr.P.Arunjayatram
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C.R.P.(NPD) (MD) No.2524 of 2015
For Respondent : Mr.Vinoth
for Mr.R.Subramanian
******
ORDER
The defendant, aggrieved by the dismissal of his application in
I.A.No.896 of 2015 to appoint an Advocate Commissioner, is the
revision petitioner before this Court.
2.The brief facts, which would help in understanding the dispute
between the parties, are hereinbelow narrated:-
2.1.The plaintiff/temple had filed the suit in O.S.No.186 of 2011
on the file of the District Munsif, Lalgudi, against the defendant for
recovery of possession of the suit property; for a sum of Rs.3,600/-
towards past profits for three years prior to suit to the plaintiff; for an
enquiry into future profits from the date of plaint till delivery of
possession; and for costs.
3.The case of the plaintiff is that the suit property originally
belonged to one Ramasamy Pillai, who was the Trustee of the plaintiff
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C.R.P.(NPD) (MD) No.2524 of 2015
Temple/ the brother of the plaintiff's father's grandfather. He had settled
the property to the plaintiff/temple under a Settlement Deed dated
25.07.1935. The temple was declared as a private temple by judgment
and decree in O.S.No.131 of 1959 by the Subordinate Judge, Trichy. The
Settlement Deed itself describes that there were two houses built by the
said Ramasamy Pillai at his costs and expenses for the temple. One of
the buildings was to be used as the residence of the Archaka. The
plaintiff is in possession and in effective management of the temple and
the houses therein. In fact, the houses are in a dilapidated condition.
The defendant, who was appointed as an Archaka, has been serving the
temple for over 45 years. In the course of his employment, he was
permitted to reside in the house set up for the Archaka. Though he was
put in permissible occupation of the property, the defendant got
avaricious and wanted to knock of the property as his own for which
purpose, he tried to obtain a patta from the Government Authorities and
this attempt was futile. Thereafter, he had filed O.S.No.321 of 1998 on
the file of the II Additional Subordinate Court, Tiruchirappalli, to declare
that he is the absolute owner of D.Nos.2/119 and 2/119A (the suit
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C.R.P.(NPD) (MD) No.2524 of 2015
properties) by adverse possession, for an injunction restraining the
plaintiff from interfering with his possession and enjoyment of the
property and a mandatory injunction to the State to grant him a patta.
After contest, the suit, which was transferred to the file of the District
Munsif Court, Lalgudi as O.S.No.186 of 2004, was dismissed.
Challenging the dismissal, the defendant had filed an appeal in A.S.No.
31 of 2006 on the file of the II Additional Subordinate Court, Trichy.
The appeal was dismissed confirming the judgment and decree in
O.S.No.186 of 2004. No further appeal has been filed. Therefore, the
judgment and decree in O.S.No.186 of 2004 attained finality. The
defendant refused to do the Archaka's duties and attempted to squat in
the property and therefore, he was asked to vacate the premises as the
plaintiff was put in other person. However, though the defendant had
initially agreed to vacate the premises, he failed to do so. The legal
notice also evoked no favourable results. Consequently, the plaintiff was
constrained to file the above suit.
4.The defendant had filed a counter more or less reiterating the
contentions raised by him in the earlier suit. He would also contend that
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C.R.P.(NPD) (MD) No.2524 of 2015
the judgment in O.S.No.186 of 2004 by the learned District Munsif,
Lalgudi, which was confirmed in the Appeal Suit by the learned
Subordinate Judge, Trichy, would not automatically mean that the
plaintiff is the owner of the property. Pending the suit, the defendant had
come forward with the impugned application to appoint an Advocate
Commissioner to note down the physical features and take down its
measurements with the assistance of the Surveyor and file a report with
plan. The reason for making the application as stated in the affidavit is
that the suit property, according to the plaintiff, was part of the temple
whereas according to the defendant, it was independent of the temple and
the temple is surrounded by the big stoned compound wall and the suit
property is away from it. Noting down this physical feature was essential
for the defendant to support his case.
5.The plaintiff had resisted the above application inter alia
contending that there was no ambiguity or dispute with reference to the
identity of property and neither was there any identity crisis and there
was no confusion or doubt about the measurement. The suit is one for
recovery of possession. The plaintiff had to prove its right to seek the
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C.R.P.(NPD) (MD) No.2524 of 2015
recovery of possession and the defendant had to prove that he was the
rightful owner of the property entitled to be protected and there was no
necessity to appoint an Advocate Commissioner.
6.The learned District Munsif, Lalgudi by his order dated
15.09.2015, had dismissed the said application stating that the defendant
cannot set out on a fishing expedition by seeking appointment of an
Advocate Commissioner. The learned Judge had also stated that there
was no doubt about the situation of the property or its measurement and
therefore, there was no necessity to appoint an Advocate Commissioner.
Challenging the same, the petitioner is before this Court.
7.Heard the learned counsel on both sides.
8.As rightly held by the court below, the suit is one for recovery of
possession on the basis that the defendant has ceased to carry out the
assigned duties of an Archaka and that the house, which was settled on
the temple, was to be used as the residence for the Archaka of the
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C.R.P.(NPD) (MD) No.2524 of 2015
plaintiff temple. The defendant was in occupation of the same only on
account of his being an Archaka. Therefore, there is no necessity to
appoint an Advocate Commissioner to prove title. The learned District
Munsif, Lalgudi, has rightly dismissed the said application. Therefore,
this Court does not find any ambiguity or grounds to interfere with the
order of the learned District Munsif, Lalgudi, dated 15.09.2015 passed in
I.A.No.896 of 2015. Consequently, the Civil Revision Petition fails and
is dismissed. It is informed that the suit is of the year 2011. Therefore, a
direction is issued to the learned District Munsif, Lalgudi to dispose of
the suit within a period of two months from the date of receipt of a copy
of this order. No costs. Consequently, connected miscellaneous petition
is closed.
06.12.2021
Index : Yes/No
Speaking/Non-Speaking Order
abr
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C.R.P.(NPD) (MD) No.2524 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 District Munsif, Lalgudi, Trichy.
C.R.P.(NPD) (MD) No.2524 of 2015
Dated: 06.12.2021
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