Madras High Court

Arulmighu Punyakoteswarar Koil ... vs A.Krishnaswamy Chettiar ... on 9 March, 2021

                                                                      S.A.No.1546 of 2001

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 09.03.2021

                                                    CORAM

                             THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

                                              S.A.No.1546 of 2001

                    Arulmighu Punyakoteswarar Koil Devasthanam,
                    represented by its hereditary Trustee
                    S.Kachapeswara Gurukkal (Deceased),
                    Jayanthi, W/o.S.Kachapeswara Gurukkal

                    (the name of the appellant Jayanthi was substituted in the place of
                    the deceased S.Kachapeswara Gurukkal, vide order of this Court
                    dated 24.02.2020 made in CMP.No.4443 of 2020 in S.A.No.1546 of
                    2021)
                                                                    ... Appellant
                                                   Vs.

                    1.A.Krishnaswamy Chettiar (deceased)
                    2.D.Arumugam Chettiar (deceased)
                    3.K.Natarajan
                    4.K.Namachivayam
                    5.K.Arunachalam
                    6.A.S.Rajesh
                    7.A.S.Satish                                    ... Respondents

                    (RR 4 & 5 brought on record as legal representatives of the
                    deceased R1 vide order of Court dated 11.09.2018 made in
                    CMP.No.11200 to 11202 of 2018 in S.A.No.1546 of 2001)


                    PRAYER: This Appeal has been filed under Section 100 of Code of
                    Civil Procedure against the judgment and decree made in A.S.No.69
                    of 1995 on the file of the Court of the learned Subordinate Judge,
                    Kancheepuram dated 15.03.2001 in modifying the judgment and
                    decree made in O.S.No.1000 of 1986 on the file of the District
                    Munsif's Court, Kancheepuram dated, 13.02.1995.


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                                                                                      S.A.No.1546 of 2001

                                           For Appellant     : Mr.M.Narayanasamy
                                           For R1, R2 &
                                           R4 to R12         : Given up

                                           For R3            : No appearance


                                                        JUDGMENT

The plaintiff in the suit in O.S.No.1000 of 1986 is the

appellant herein.

2.For the sake of convenience, the parties are referred to as

per the ranking in the suit.

3.Brief facts of the case are as follows:

3(a).Arulmighu Punyakoteswarar Koil Devasthanam,

represented by its hereditary trustee has filed a suit in O.S.No.1000

of 1986, before the District Munsif Court, Kancheepuram, to declare

the title over the suit property and for injunction restraining the

defendants from interfering with the peaceful possession and

enjoyment of the suit property. The defendants have filed written

statement alleging that the subject matter of the suit land is belong

to one Vinayakar Temple situated at Punniyakotteswarar Koil Street

on the Western side and resisted the claim.

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S.A.No.1546 of 2001

3(b).The Trial Court has formulated the following issues as

(i)whether the plaintiff is a hereditary trustee?

(ii)whether the plaintiff is entitled for declaration of title and for

permanent injunction?

(iii)whether the suit property belongs to the plaintiff's temple?

(iv)whether the suit is maintainable in view of the earlier suit in

O.S.No. 535 of 1982?

(v)whether the suit is barred under Order 2 Rule 2 and Order 23

Rule 1 and 2 of CPC?

(vi)whether the plaintiff is entitle to conduct the suit on behalf of the

plaintiff?

(vii)whether the suit is bad in non-joinder of necessary parte.

3(c).Before the Trial Court, during the course of the

examination, on the side of the plaintiff PW1 was examined and

marked Exs.A1 to A10 and on the side of the defendants, RW1 was

examined and marked Exs.B1 to B24 and after trial, the Trial Court

has decreed the suit in toto.

3(d).Aggrieved against the same, the defendants have filed

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S.A.No.1546 of 2001

an appeal in A.S.No.69 of 1995, before the Subordinate Court,

Kancheepuram and the same was partly allowed and the decree

granted by the Trial Court is modified to the limited extent that the

plaintiff temple is entitle only for an injunction and not for relief of

declaration of title. Hence, the Second Appeal by the plaintiff.

4.The above Second Appeal is admitted on the following

substantial questions of law:

1.Whether the lower appellate court not erred in law in holding that plaintiff has no title to the suit property despite overwhelming documentary evidence and in the absence of any documentary evidence in favour of the defendants to prove their title to the suit property, as admitted by D.W.1?

2.When the courts below have found possession in favour of the plaintiff, whether lower appellate court not erred in law in not considering the possessary title of the plaintiff to the suit property?

3.Whether the lower appellate court misconstrued and misappreciated the evidence on record in reversing the findings of the trial court with regard to plaintiff's title to the suit property?

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S.A.No.1546 of 2001

5(a).Mr.A.Muthukumar, learned counsel appearing for the

appellant would made his submissions in support of the substantial

questions of law and also draw my attention to Exs.A1, A2, A3 & A4.

Ex.A1 is the patta pass book, issued in the year 1974, Exs.A2 & A3

are tax receipts issued by the concerned Municipality and Ex.A4 is

the Xerox copy of the land survey register of the year 1983.

5(b).On a combined reading of all the documentary

evidences, it is seen that, earlier occasion, when the Municipality

wanted to convert the suit property as a lay out for house sites by

plots with a plan for the interest of petitioner's family deities called

Kanniamman living at Kannikoil Thottam situated nearby and south

of suit property, Punniyakotteeswarar Koil Street, therefore, the very

same temple had filed O.S.No. 535 of 1982, before the District

Munsif Court, Kancheepuram, wherein, the Kancheepuram

Municipality had filed written statement that subsequent to the

institution of that suit, the Municipality came to know about the

ownership of the temple and accordingly, withdrawn the project of

converting the suit property as lay out for house sites situated at the

southern row of the street, Punniyakoteeswarar Koil Street and thus,

the judgment and decree passed in O.S.No.535 of 1982 were

marked as Exs.A9 & A10.

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S.A.No.1546 of 2001

5(c).The learned counsel for the appellant herein would

further draw my attention to the finding of the learned Subordinate

Judge, the Appellate Court, Kancheepuram, that the plaintiff has

successfully demonstrated possession of the suit property and

hence, the appeal is now confined only to whether the plaintiff

temple is entitled for decree of declaration declaring that title to the

suit property?

6.On a perusal of the records, it is seen that the suit

property is measuring about 58 cents in Survey No.1152, in Patta

No.288, standing in the name of Sri Punniyakotteeswarar Swamy,

first division at Kancheepruam. After elaborate consideration, the

Lower Appellate Court has rightly come to the conclusion that a case

projected by the defendants that the suit property belongs to the

Vinayakar Temple, situated on the western side of the

Punniyakoteeswarar Koil Street, is not proved in the manner known

to law. Further, on a perusal of the documents filed by the

defendants, it does not exhibit either the possession or title as

claimed by them in the written statement.

7. The Lower Appellate Court has given a categorical finding

at Paragraph No.13 of its Judgment in A.S.No.69 of 1995 that “ no

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S.A.No.1546 of 2001

documents produced for their right over the suit properties for the

Vinayagar Temple”.

8.Furthermore, Exs.B16, B17 & B18 were marked as the

mortgage deeds and in those documents, there is a mention that the

properties mortgaged are in the south of Samudhaya Koodam and

that there is no specific mention that the property in those

documents are North of S.No.1152. Hence, based upon the Exs.B16,

B17 & B18, the Trial Court has rightly come to the conclusion that

the defendants have no title to the suit property. On the point of

possession of the plaintiff, the Trial Court has accepted Exs.A1 & A4

coupled with Exs.A2 & A3 support by Exs.A9 & A10, has come to the

conclusion that temple is in possession of the property.

9.After going through Exs.A1 & A3, it is seen that the name

of the temple is duly reflected in the land survey register as a owner

of the property, a person, who is cultivating the land for flowers

namely Nandhavanam (temple land), for doing pooja was duly

reflected in Ex.A4/Xerox copy of the land survey register and the

Kancheepuram Municipality also appears to have conduct an enquiry

and come to the conclusion that the suit property belongs to the

temple and accordingly withdrawn the proposal for lay out for house

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S.A.No.1546 of 2001

sites as could be seen from Exs.A9 & A10/judgment and decree copy

in O.S.No.535 of 1982.

10.Hence, I find that on a combine reading of Exs.A1 & A3

coupled with Exs.A2 & A3 and supported by Exs.A9 & A10, the

plaintiff has adduced necessary evidence to show that they are

purported title by long possession and in other words, possessory

title has been conferred upon the plaintiff since, the suit was filed in

the year 1986 and as per Ex.A1/Patta is of the year 1974.

11.In the judgment reported in 1996 (2) LW 231 -

(A.S.Sethurathnammal Vs. The Deputy Commissioner, HR &

CE (Admn.) Department, Madras 600034), this Court has held

as follows:

“It should not be forgotten that an idol is in the position of a minor. It has been held in Bishwanath v. Radha Ballabhji (AIR 1967 S.C. 1044) that an idol is in the position of a minor and when the person representing it leaves it in lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interests.” Further, it is held that

“Courts should be astute to protect the interest of an idol in any litigation.”

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S.A.No.1546 of 2001

12.Hence, I find that all the substantial questions of law

based upon the evidence are answered in affirmative in favour of the

appellant and consequently, the suit is decreed in respect of title

also.

13.In view of the above, this Second Appeal stands allowed

to the limited extent as indicated above. No costs.

09.03.2021

dua Index:Yes/No Internet:Yes/No Speaking Order/Non-speaking Order

1.The Court of the learned Subordinate Judge, Kancheepuram.