Madras High Court
M. Pandian vs R. Pasupathy on 11 January, 2021
S.A..No.1062 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.01.2021
CORAM
THE HONOURABLE MR. JUSTICE T. RAVINDRAN
S.A.No. 1062 of 2008
and
M.P. No.1 of 2008
1. M. Pandian
2. M. Panchatcharam
3. Saroja ... Appellants
Vs.
R. Pasupathy ... Respondent
Prayer: Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree in A.S. No.356/2004 dated
17.02.2005 on the file of II Additional Judge, City Civil Court, Chennai
and also against the judgment and decree in O.S.No. 805/97 dated
30.09.2003 on the file of the III Assistant Judge, City Civil Court,
Chennai.
For Appellants : Mr. C.T. Mohan
For Respondent : Mr. P.B. Ramanujam
Page 1 of 14
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S.A..No.1062 of 2008
JUDGMENT
Challenge in this second appeal is made to the judgment and
decree dated 17.02.2005 passed in A.S. No.356/2004 on the file of II
Additional Judge, City Civil Court, Chennai confirming the judgment
and decree dated 30.09.2003 passed in O.S.No. 805/97 on the file of the
III Assistant Judge, City Civil Court, Chennai.
2. For the sake of convenience, the parties are referred to as per
their ranking in the trial court.
3. The defendants in O.S. No.805 of 1997 are the appellants in
the Second Appeal.
4. Suit for Permanent Injunction.
5. Shorn of unnecessary details, the case of the plaintiff, in
brief, is that the Madurai Veeran temple formerly known as Sri
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Meenakshi Amman temple situated at No.11, Madurai Veeran Street,
T.Nagar, Madras 600 017 was founded and established by one
Bhoopathy Naicker, the paternal grand father of the plaintiff and after the
demise of Bhoopathy Naicker, his two sons, namely, Rangaraja Naicker,
the plaintiff's father and, Munusamy Naicker, the father of the defendants
1 and 2 were the trustees of the said temple and they were in charge of
the administration of the temple by performing the daily poojas and
festivals. On 13.08.1994, the plaintiff's father died and after his demise,
Munusamy naicker took over the charge of the temple and after the
demise of Munusamy Naicker, the plaintiff took over the charge and
administration of the temple and the possession of the temple is with the
plaintiff. The defendants, who are the sons of the deceased Munusamy
Naicker, have not participated in the temple affairs and the defendants
preferred a suit in O.S.No.2592/1986 for permanent injunction
restraining the plaintiff as if they are in the possession of the temple
property and that they are performing the daily poojas of the temple. The
suit was decreed exparte. The plaintiff has preferred an application to set
aside the exparte decree with the petition to condone the delay in filing
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S.A..No.1062 of 2008
the petition to set aside the exparte decree. While so, the defendants
forcibly broke open the temple doors on 03.05.1994 and took the
possession of the temple and also the temple land. The application
preferred by the plaintiff to condone the delay in I.A. No.5799/1994 has
also been dismissed. The plaintiff is taking steps to prefer a civil
revision petition against the order passed in the said application. The
plaintiff is in the possession of a portion of the property bearing No.11,
Madurai Veeran Street, T. Nagar, Madras 600 017 and the defendants are
in the possession of another portion. Even in the suit laid by the
defendants against the plaintiff in O.S. No.2592/1986, the plaintiff's
possession has been clearly admitted by the defendants. The decree
obtained by the defendants in the above suit is only with reference to the
portion in the occupation of the defendants and not with reference to the
portion occupied by the plaintiff. The plaintiff's possession is lawful.
The plaintiff has been paying the tax to the corporation for their
occupation of the portion in their possession and in the guise of the
exparte decree obtained by the defendants, the defendants are attempting
to disturb the plaintiff's possession and enjoyment of the portion in their
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S.A..No.1062 of 2008
occupation and hence, according to the plaintiff, he is necessitated to lay
the suit for the relief of permanent injunction.
6. The defendants resisted the plaintiff's suit contending that
the suit laid by the plaintiff is not maintainable. The plaintiff has no
right, interest or claim over the suit property and the Madurai Veeran
temple situated at No.11 Madurai Veeran Street, T. Nagar, Madras 600
017 was founded by the maternal grand father of the defendants and the
plaintiff, namely, Boopathy Naicker and after his demise, it is only the
defendants' father Munusamy Naicker, who became the trustree of the
temple and looking after the entire administration of the temple and after
his demise it is only the defendants who are in the possession and
enjoyment of the temple and the property including the conduct of the
daily poojas and the festivals. When the plaintiff made attempts to
interfere with the possession and enjoyment of the defendants, the
defendants preferred the O.S.No.2592/1986 against the plaintiff and in
the abovesaid suit, the plaintiff remained exparte. Even the application
preferred by the plaintiff to set aside the exparte decree has been
dismissed. It is false to state that after the death of Munusamy Naicker,
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S.A..No.1062 of 2008
the plaintiff has taken charge of the temple. Neither the plaintiff nor his
father has been in the possession and enjoyment of the temple at any
point of time. There is a room to an extent of 10' x 10' and in the said
room, articles, vessels belonging to the temple are kept. The third
defendant permitted the plaintiff to use that room till her sons became
majors. Therefore, the occupation of the plaintiff in the abovesaid
portion is only a permissive one and liable to be vacated at any time. The
plaintiff cannot claim any right over the same. Infact, the plaintiff had
agreed to vacate the abovesaid portion at any time when demanded by
the defendants. Even, before the panchayatars, the plaintiff had agreed to
vacate the portion, however, without doing so, the plaintiff has come
forward with the false case for the relief of permanent injunction.
Therefore, according to the defendants, there is no cause of action for the
suit and the suit is liable to be dismissed.
7. In support of the plaintiff's case, P.W.1 was examined,
Exs.A1 to A8 were marked. On the side of the defendants, D.Ws.1 and 2
were examined and Exs.B1 to B4 were marked.
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S.A..No.1062 of 2008
8. On a consideration of the oral and documentary evidence
adduced by the respective parties and the submissions made, the courts
below were pleased to grant the relief sought for by the plaintiff.
Aggrieved over the same, the second appeal has been preferred by the
defendants.
9. At the time of the admission of the second appeal, the
following substantial question of law was formulated for consideration.
"Are the courts below right in granting the decree
of injunction against a co-owner ignoring the
documents filed by the defendants (appellants
herein) establishing their possession?
10. From the materials placed on record, it is found that the
plaintiff on the one hand and the defendants on the other hand are vying
with each other with reference to the claim of right, interest and
possession of the property belonging to the Madurai Veeran temple
formerly known as Sri Meenakshi Amman temple. It is also seen that the
defendants have preferred a suit against the plaintiff in
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S.A..No.1062 of 2008
O.S.No.2592/1986 against the plaintiff and his brother before the city
civil court, Chennai, for the relief of permanent injunction in respect of
the property belonging to the Madurai Veeran temple @ Sri Meenakshi
Amman temple and the said suit ended in an exparte decree in favour of
the defendants. The said exparte decree has become final as the efforts
taken by the plaintiff to set aside the exparte decree ended in vain.
11. Considering the pleas put forth by the respective parties
and the materials placed on record, it is admitted by the defendants that
the plaintiff is in one portion of the property belonging to the temple
measuring an extent of 10' x 10', which is the suit property. Now
according to the defendants, at the request of the plaintiff, the defendants
granted permission to the plaintiff to occupy the same and further the
plaintiff had promised to vacate the said portion at any time as and when
demanded by the defendants. That the occupation of the abovesaid
portion i.e, 10' x 10' by the plaintiff has been admitted by the defendants
even in the suit laid by them in O.S.No.2592/1986.
12. In addition to that, as rightly held by the courts below,
D.W.1 has admitted during the course of cross examination that the suit
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S.A..No.1062 of 2008
property is in the portion of the plaintiff. In the light of the abovesaid
factors, as rightly concluded by the courts below, the suit property is
found to be in the possession and enjoyment of the plaintiff and the same
is also admitted by the defendants as above stated. Therefore, the only
plea that has to be considered in the second appeal is as to whether the
possession of the suit property by the plaintiff is based on the permission
granted to him by the defendants or in his own right. But, with reference
to the alleged permission said to have been granted to the plaintiff to
occupy the suit property on the part of the defendants, absolutely there is
no valid material projected by the defendants worth acceptance. On the
other hand, from the copy of the ration card, tax receipt, tax demand card
projected by the plaintiff marked as Exs. A4 to A6, it is seen that, as
rightly held by the courts below, the abovesaid documents also
probabilise and reinforce the claim of the plaintiff that the possession
and the occupation of the suit property by the plaintiff is in his own right
and not based on the permission said to have been granted by the
defendants.
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S.A..No.1062 of 2008
13. The defendants have marked the letter said to have been
given to the panchayatars on the part of the plaintiff dated 03.05.1994 as
Ex.B2. The same has been marked subject to the objection put forth by
the plaintiff. As rightly held by the courts below the defendants has not
whisphered about the abovesaid letter in the written statement.
Furthermore, D.W.2 examined on behalf of the defendants to substantiate
the panchayat held in the matter has deposed that he is not aware as to
when Ex.B2 was written and as to who are the other signatories of the
document. He would only state that he has affixed his signature in the
document as requested by others. Therefore, as rightly concluded by the
courts below, the evidence of D.W.2 would be of no use to sustain the
case of the defendants that the plaintiff had agreed to vacate the portion
in his occupation before the panchayatars. Therefore, Ex.B2 would be of
now use to sustain the defence version. Furthermore, the copy of the
judgment passed in O.S. No.700 of 1983dated 02.02.1995 marked as
Ex.A8 would go to show that the plaintiff's father, the defendants' father,
the plaintiff's brother, the plaintiff and the defendants are all the
hereditary trustees of the Madurai Veeran temple. The abovesaid
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S.A..No.1062 of 2008
document would also substantiate the case of the plaintiff that they also
have some interest, right and claim over the property belonging to the
Madurai Veeran temple.
14. Considering the abovesaid factors in toto, it is noted that
the courts below had rightly upheld the possession of the plaintiff qua the
suit property particularly when there is no material worth acceptance
forthcoming on the part of the defendants to evidence that the portion in
the occupation of the plaintiff is only based on the permission accorded
by them to the plaintiff. In such view of the matter, the plaintiff,
admittedly being in the possession of the suit property and also
established his case of possession and enjoyment of the suit property as
above pointed out, resultantly, the plaintiff's possession and enjoyment is
not to be disturbed except under due process of law and therefore, it is
found that the courts below are found to be justified in granting the relief
of permanent injunction as prayed for by the plaintiff.
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S.A..No.1062 of 2008
15. In the light of the abovesaid discussions, in my considered
opinion, no substantial question of law is involved in the second appeal.
Be that as it may, the substantial question of law formulated in this
second appeal is accordingly answered against the defendants and in
favour of the plaintiff.
16. In the light of the abovesaid discussions, the judgment and
decree dated 17.02.2005 passed in A.S. No.356/2004 on the file of II
Additional Judge, City Civil Court, Chennai confirming the judgment
and decree dated 30.09.2003 passed in O.S.No. 805/97 on the file of the
III Assistant Judge, City Civil Court, Chennai, are confirmed.
Resultantly, the second appeal is dismissed with costs. Consequently,
connected miscellaneous petition is closed.
11.01.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
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S.A..No.1062 of 2008
To
1. The II Additional Judge, City Civil Court, Chennai
2. The III Assistant Judge, City Civil Court, Chennai
3. The Section Officer, VR Section, High Court, Madras
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S.A..No.1062 of 2008
T. RAVINDRAN, J.
bga
S.A.No.1062 of 2008
11.01.2021
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