Arunan vs Arulmigu Nageswaraswamy ...
2021 Latest Caselaw 523 Mad

                                                                               SA(MD)No.90 of 2015

                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              Dated : 07.01.2021

                                                     CORAM

                              THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN

                                              SA(MD)No.155 of 2015
                     1.Arunan
                     2.A.Rajendran
                     3.S.Chandrasekaran               ...Appellants/Appellants/Plaintiffs

                                            Vs.
                     1.Arulmigu Nageswaraswamy Devasthanam
                     Rep. By its Executive officer,
                     Having his office at Nageswaran Temple
                     Kumbakonam                     ...Respondent/Respondent/Defendant


                     PRAYER:- Second Appeal filed under Section 100 of Civil Procedure
                     Code against the Judgment and Decree dated 27.06.2006 passed in A.S.No.
                     134 of 2003 on the file of the Principal Subordinate Judge, Kumbakonam,
                     confirming the Judgment and Decree dated 02.12.2002 passed in O.S.No.
                     152 of 1997 on the file of the I Additional District Munsif Court,
                     Kumbakonam.


                                  For Appellants    : Mr.S.Siva Thilakar
                                  For Respondent    : Mr.M.Saravanan




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                                                                                  SA(MD)No.90 of 2015

                                                     JUDGMENT

The plaintiffs in O.S.No.152 of 1997 on the file of the I Additional

District Munsif, Kumbakonam have come up on appeal challenging the

affirmation of the dismissal of their suit for permanent injunction by the

learned Principal Sub Judge, Kumbakonam in A.S.No.134 of 2003.

2. The plaintiffs sued for injunction contending that they are sub-

lessees under the original lease holders of the temple. Contending that the

temple is attempting to dispossess them by use of force, the plaintiffs sought

for injunction.

3. The suit was resisted by the defendant/temple contending that the

plaintiffs' possession is illegal since subleasing of the property is prohibited

under the document dated 14.10.1983 in and by which the temple decided to

alienate the properties in question by way of lease in favour of its

employees. At trial, the second plaintiff was examined as P.W.1 and

Exts.A1 to Exts.A12 were marked. One Chockalingam, the clerk of the

temple was examined as D.W.1 and Ex.B.1 was marked.

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4. The trial court, upon consideration of the evidence of record,

concluded that since the possession of the plaintiffs is illegal and they are

trespassers, their possession cannot be protected by a decree for injunction.

On the said finding, the trial court dismissed the suit. Aggrieved, the

plaintiffs preferred an appeal in A.S.No.134 of 2003.

5. The learned Principal Sub Judge, Kumbakonam, who heard the

appeal upon re-consideration of the evidence on record, concurred with the

finding of the trial court and dismissed the appeal. Hence, the Second

Appeal.

6. The following substantial questions of law have been framed:

i)When the defendant had not initiated any action under Section 78 of Tamil Nadu Hindu Religious and Charitable Endowments Act, whether the courts below were right in dismissing the suit for permanent injunction not to evict unless by due process of law?

ii) When the defendant temple had not terminated the lease in favour of the original lessees under Section 34-B of Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, whether the possession of the plaintiffs could be considered to be illegal?

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7. I have heard Mr.S.Siva Thilakar, learned counsel appearing on

behalf of the appellants and Mr.M.Saravanan, learned counsel appearing for

the respondent.

8. Mr.S.Siva Thilakar, learned counsel appearing for the appellants,

elaborating on the questions of law, would contend that once the possession

of the plaintiffs is admitted, it is open to the temple to evict them only by

following due process of law by initiating proceedings either under Section

78 of the Tamilnadu Hindu Religious and Charitable Endowment Act or

before a competent civil court. He would further contend that the original

lease has not been terminated and therefore, the defendant cannot disturb

their possession.

9. Contending contra, Mr.M.Saravanan, learned counsel appearing for

the temple would submit that trespassers cannot be favoured with a decree

for injunction merely because they are in possession of the property. The

learned counsel would further contend that the decision of the temple to

lease out the land was taken under Ex.B.1 dated 14.10.1983 and it has been

made clear, even in the said document, that the lessees will not be entitled to

sub-let or under lease the property. Therefore, according to him, once a

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sublease is prohibited, the plaintiffs who claim to be the sub lessees cannot

be said to be in lawful possession of the property. Once the possession is

found to be unlawful, the court cannot grant an injunction to protect such

unlawful possession.

10. I have considered the rival submissions.

11. The fact that the plaintiffs are sub lessees is admitted. Ex.B.1

dated 14.10.1983 would show that the persons, who are given the lease on

the strength of the resolution are prohibited from sub letting or under

leasing the property. Therefore, the basis of the plaintiffs' possession is

illegal. It is trite in law that a person, who is in illegal possession, cannot

seek an injunction against the true owner to protect his possession. The

courts below have analyzed the evidence and come to the conclusion that

the possession of the plaintiffs is not legal and it is equivalent to that of a

trespasser. Once the said finding is reached, the courts below are justified in

rejecting the claim of the plaintiffs for a protective injunction. Whether the

defendant would take proceedings under 78 of the Tamilnadu Hindu

Religious and Charitable Endowment Act or not does not really matter. The

question in the present suit would be as to whether the plaintiffs would be

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entitled to the relief of injunction. Therefore, I am unable to accept the

contention of Mr.S.Siva Thilakar, learned counsel appearing for the

appellants. Therefore, the contention of the respondent that the questions of

law do not strictly arise in the appeal is accepted.

12. In fine, this Second Appeal is dismissed. No costs.

07.01.2021

Index : Yes/No Internet: Yes/No CM

To:

1.The I Additional District Munsif Court, Kumbakonam.

2.The Principal Subordinate Judge, Kumbakonam,

3.The Section Officer, VR Section High Court of Madras Madurai Bench.

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R.SUBRAMANIAN .J.,

CM

Judgment in SA(MD)No.155 of 2015

07.01.2021

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