Madras High Court
N.Ponnusamy vs The Assistant Executive Engineer on 4 March, 2021
S.A.(MD)No.1 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.03.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.1 of 2015
N.Ponnusamy Appellant
Vs.
1.The Assistant Executive Engineer,
(Operation and Maintenance),
Tamilnadu Electricity Board,
Sinthamanipatti,
Kulithalai Taluk,
Karur District.
2.The Assistant Engineer,
(Operation and Maintenance),
Tamilnadu Electricity Board,
Sinthamanipatti,
Kulithalai Taluk,
Karur District.
3.The Executive Engineer,
(Operation and Maintenance),
Tamilnadu Electricity Board,
Kulithalai Taluk,
Karur District.
4.The Superintendent Engineer,
Electricity Circle,
Tamilnadu Electricity Board,
Karur District.
1/9
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S.A.(MD)No.1 of 2015
5.Kittu @ Krishnan
S/o Vembarasu,
Tharagampatti,
Kulithalai Taluk,
Karur District. Respondents
PRAYER:- Second Appeal filed under Section 100 of Code of Civil
Procedure, against the Judgment and Decree dated 06.08.2013 in A.S.No.
1 of 2012 on the file of Principal Subordinate Court, Karur in confirming
the judgment and decree dated 02.12.2010, made in O.S.No.500 of 2010,
on the file of the Additional District Munsif Court, Karur.
For Appellant : Mr.K.Govindarajan
For R1 to R4 : Mr.C.Selvaraj
For R5 : Mr.N.Sudhakar Nagaraj
JUDGMENT
The plaintiff in O.S.No.245 of 2006 is on appeal challenging
the dismissal of the suit for mandatory injunction to transfer the
electricity service connection No.1187 for the suit property, which is a
temple from the name of the fifth defendant to the name of the plaintiff.
2.The plaintiff has filed a suit claiming that he is the
hereditary trustee of Kannimar Amman Temple, Tharagampatti,
Kulithalai Taluk. According to him, no one else has right to manage the
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S.A.(MD)No.1 of 2015
said temple. Contending that the fifth defendant has by foul play,
obtained electricity connection for the temple in his name, the plaintiff
sought for the above relief for mandatory injunction. The plaintiff heavily
relied upon the exparte decree granted in O.S.No.237 of 1999, restraining
the Electricity Board from granting service connection to the temple in
the name of defendant in the said suit.
3.The suit was resisted by the fifth defendant contending
that the plaintiff is not a hereditary trustee of the Kannimar Amman
Temple, Tharagampatti, Kulithalai Taluk. He would contend that he was
nominated by nine trustees of the temple and authorised to obtain service
connection in his name. It was claimed that the plaintiff has given his
consent for the grant service connection in the name of the fifth
defendant. The defendant would also contend that the exparte decree in
O.S.No.237 of 1999 will not confer any right on the plaintiff.
4.At trial, the plaintiff was examined as PW 1 and three
other witnesses were examined as PW 2 to PW 4. Exs.A1 to A27 were
marked. Mr.Alocious Innasi Martin, the Assistant Executive Engineer
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S.A.(MD)No.1 of 2015
was examined as DW 1 and the fifth defendant was examined as DW 2.
T.S.Kannan and Mariappan were examined as DW 3 and DW 4. Exs.B1
to B9 were marked.
5.The trial Court, upon consideration of the evidence on
record, concluded that the plaintiff has not established his claim that he
is the hereditary trustee of the said temple. The learned trial judge had
pointed out that no evidence in support of the claim of the plaintiff to
hereditary trusteeship was produced. It was found that the fifth defendant
has been in management of the temple and therefore granting electricity
service connection in the name of the fifth defendant cannot be faulted.
On the above conclusion, the learned trial judge dismissed the suit.
6. Aggrieved, the plaintiff preferred an appeal in A.S.No.1
of 2012. On re-appreciation of the evidence, the learned Appellate Judge
concurred with the findings of the trial Court and dismissed the appeal.
Hence this Second Appeal.
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S.A.(MD)No.1 of 2015
7.The following substantial questions of law were framed at
the time of admission of the Second Appeal.
i. Whether the finding of the Courts below are correct in
not accepting the judgment and decree in O.S.No.237
of 1999, on the file of District Court, Kulithalai,
where the Court have clearly held that no one other
than the appellant is entitled for the electric
connection?
ii. Whether the Courts below correct in holding that 5th
respondent is a necessary party to the earlier suit
proceedings?
iii. Whether the Courts below correct that that appellant
is not the hereditary trustee, when he is the chairman
of the temple construction committee?
iv. Whether the Courts below correct in holding that the
appellant/plaintiff has not pleaded the history of the
temple, when the suit is for bare injunction and for
effecting the electric connection in the name of the
appellant from the 5th respondent?
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S.A.(MD)No.1 of 2015
v. Is the Court correct in holding that the appellant is not
a hereditary trustee, when P.W.1 to P.W.4 have
categorically stated that the appellant is the hereditary
trustee of the suit temple?
vi. Is the Court correct in holding that the appellant have
given the consent letter for the electric connection,
when he had obstructed for the same?
8.I have heard Mr.K.Govindarajan, the learned counsel
appearing for the appellant. Elaborating the questions of law framed, the
learned counsel appearing for the appellant would contend that through
decree in O.S.No.237 of 1999, is for permanent injunction, the defendant
in the said suit raised an issue regarding the capacity of the plaintiff to
maintain the said suit and the said issue was answered in his favour.
Hence, he is entitled to sue for mandatory injunction. I am unable to
accept the contention of the learned counsel appearing for the appellant.
There was no issue regarding the right of the plaintiff to be a hereditary
trustee of the temple, framed in the earlier suit. The prayer in the earlier
suit in O.S.No.237 of 1999 is for a bare injunction, restraining the
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S.A.(MD)No.1 of 2015
authorities from effecting service connection for the suit temple in the
name of the third defendant therein. It is seen from the judgment and
decree in the said suit, which were marked as Ex.A1 and Ex.A2 that the
suit was decreed exparte and the question as to whether the plaintiff is
hereditary trustee of the suit temple or not was not decided therein. In
any event, the fifth defendant is not a party to the said suit. The said
decree cannot be said to be binding the fifth defendant. It is also seen
from the records that the plaintiff has not produced any evidence to show
that he is the hereditary trustee of the said temple. In order to prove
hereditary trusteeship, he must be able to prove that his forefathers from
generation to generation are holding the office of hereditary trustee.
Therefore, the Courts below cannot be faulted for having rejecting the
claim of the plaintiff. The questions of law framed are answered against
the plaintiff/appellant and the appeal is accordingly dismissed. No costs.
04.03.2021
Index : Yes/No
Internet: Yes/No
vrn
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S.A.(MD)No.1 of 2015
To
1.The Principal Subordinate Court, Karur.
2.The Additional District Munsif Court, Karur.
3.The Section Officer,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.1 of 2015
R.SUBRAMANIAN, J.
vrn
Judgment made in
S.A.(MD)No.1 of 2015
Dated 04.03.2021
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