Madras High Court
Arulmighu Kumarakoil vs ) Kamalam on 26 November, 2021
S.A.No.1002 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.11.2021
CORAM:
THE HONOURABLE Mr. JUSTICE G.CHANDRASEKHARAN
S.A.No.1002 of 2021
Arulmighu Kumarakoil, Bhuvanagiri,
Represented by its Hereditary Trustee,
Kumaraval Pillai, No.5, Palayakara Street,
Mel-Bhuvanagiri, Bhuvanagiri Post,
Chidambaram Taluk. .. Defendant/ Appellant/
Appellant
Vs.
1) Kamalam
2) Rajaram
3) Rajalakshmi .. Plaintiffs / Respondents/
Respondents
PRAYER: Second Appeal is filed to set aside the Judgment and Decree
passed in A.S.No.61 of 2016 dated 27.02.2019 on the file of the
Subordinate Judge, Chidambaram, by confirming the Judgment and
Decree in O.S.No.346 of 2008 dated 22.07.2015 on the file of the
Additional District Munsif, Chidambaram in so far as it against the
appellant herein.
For Appellant: Mr.J.Ram
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S.A.No.1002 of 2021
JUDGMENT
This Second Appeal is filed against the Judgment and Decree in
A.S.No.61 of 2016 dated 27.02.2019 by the learned Subordinate Judge,
Chidambaram confirming the Judgment and Decree of the learned
Additional District Munsif, Chidambaram in O.S.No.346 of 2008 dated
22.07.2015.
2. The respondents along with two others filed a suit in
O.S.No.346 of 2008 seeking the relief of permanent injunction in respect
of 'A', 'B' & 'C' schedule properties against the appellant and for the relief
of declaration and injunction in respect of 'D' & 'E' schedule properties in
favour of plaintiffs 4 & 5.
3. Plaintiffs' claim of right and possession is on the basis of
assignment of these properties by the Government. They are in
possession and enjoyment ever since the date of assignment. The need for
filing this suit arose when the appellant tried to interfere with their
possession and enjoyment of the said suit property. Therefore, the suit
was filed.
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S.A.No.1002 of 2021
4. It is seen from the written statement filed by the appellant that
the appellant denied that the respondents and other plaintiffs were in
possession and enjoyment of the suit properties. It is the case of the
appellant that, the appellant is interested only in 'D' & 'E' schedule
properties. It is claimed that the appellant is in possession and enjoyment
of 'D' & 'E' schedule properties. Originally, the suit was filed against one
Vellupillai in his individual capacity. Subsequently, the plaint was
amended and Vellupillai was shown as Trustee of Arulmighu
Kumarakoil, Bhuvanagiri through its Hereditary Trustee.
5. It is the case of the appellant that 'D' & 'E' schedule properties
have been taken possession by the appellant through the Court in
execution of decree in O.S.No.415 of 1983, which has been confirmed
in A.S.No.26 of 1996 on the file of Sub Court, Chidambaram. On the
basis of the above pleadings, the trial Court framed the following
substantial questions of law:-
1) Whether the 1 to 3 Plaintiffs are entitled for the relief
of Permanent Injunction as they prayed for?
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S.A.No.1002 of 2021
2) Whether the 'D' schedule suit property belongs to 4th
plaintiffs and whether she is entitled for the relief of
Declaration of the same?
3) Whether the 4th Plaintiff is entitled for the relief of
Permanent Injunction in respect of 'D' schedule suit
property?
4) Whether the 'E' schedule suit property belongs to 5th
plaintiff and whether she is entitled for the relief of
Declaration of the same?
5) Whether the 5th Plaintiff is entitled for the relief of
Permanent Injunction in respect of 'E' schedule suit
property?
6) To what other relief the Plaintiffs are entitled for?
6. On the side of the appellant, P.Ws. 1 to 6 were examined,
exhibits Ex.A1 to Ex.A22 were marked. D.W.1 was marked and on the
side of the defendants, exhibits Ex.B1 to Ex.B6 were marked. On
considering the oral and documentary evidence, the learned trial Judge
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S.A.No.1002 of 2021
granted Decree in favour of plaintiffs 1 to 3 in respect of 'A', 'B' & 'C'
schedule properties and dismissed the suit with regard to the relief of
declaration and injunction in respect of 'D' & 'E' schedule properties.
Challenging the said judgment, the plaintiffs 4 & 5 have filed an appeal
in A.S.No.48 of 2015 and the appellant / defendant filed A.S.No.61 of
2016.
7. The learned Appellate Judge, on considering the evidence,
submissions of the learned counsel appearing for both the parties and the
Judgment of the trial Court, found no reason to interfere with the
Judgment and Decree of the Trial Court and dismissed the Appeal. Now,
the appellant / defendant is before this Court by way of the present
Second Appeal, challenging the grant of permanent injunction in favour
of plaintiffs 1 to 3 in respect of 'A', 'B' & 'C' schedule properties.
8. The main contentions of the learned counsel for the appellant is
that the suit was originally filed against the appellant in his individual
capacity and then only he was shown as Hereditary Trustee of
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S.A.No.1002 of 2021
Arulmighu Kumarakoil, Bhuvanagiri. There is no pleadings in the plaint
as to whether anyone is trying to interfere with the possession and
enjoyment of the plaintiffs 1 to 3 in 'A', 'B' & 'C' schedule properties.
When there is no specific pleadings against the Temple for the grant of
Decree of permanent injunction, the plaint cannot be sustained. This is
the short point for consideration in the Second Appeal.
9. Even as per the admitted position of the appellant/ defendant's
in its written statement, the appellant is concerned only with 'D' & 'E'
schedule properties. It has no concern or interest or claim of any right in
'A', 'B' & 'C' schedule properties. However, in paragraph No.2 of the
written statement, there is a specific allegation made in the form of denial
that the case of the plaintiffs / respondents, they are in possession of the
suit properties and are entitled for decree of permanent injunction is
denied as 'false'. In paragraph No.7 of the plaint, there are specific
allegations made against the Trustee of the Temple namely Vellupillai
that he tried to prevent cultivation of the plaintiffs in the suit property
with his men and therefore, it has necessitated the filing of the suit. When
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S.A.No.1002 of 2021
there is a specific allegation against Velupillai, who is the Hereditary
Trustee of the appellant Temple, we cannot say that the respondents have
no cause of action for filing of the suit for permanent injunction.
10. The term defendant includes Arulmighu Kumarakoil,
Bhuvanagiri represented by the Hereditary Trustee Vellupillai. Both the
Courts below, on the basis of evidence, found that the respondents faced
a real threat to their possession and are entitled for the relief of
permanent injunction in respect of 'A', 'B' & 'C' schedule properties. This
Court finds no reason to interfere with the findings of the Court below.
There is no substantial question of law involved to entertain this Second
Appeal.
11. In this view of the matter, the Judgment and Decree made in
A.S.No.61 of 2016 by the learned Subordinate Judge, Chidambaram
confirming the Judgment and Decree of the learned Additional District
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S.A.No.1002 of 2021
G.CHANDRASEKHARAN, J.,
sts
Munsif, Chidambaram in O.S.No.346 of 2008 is confirmed and
therefore, the Second Appeal stands Dismissed. However, there shall be
no order as to costs.
26.11.2021
Index : Yes / No
Speaking Order / Non-Speaking Order
sts
To:
1. The Subordinate Judge, Chidambaram.
2. The Additional District Munsif, Chidambaram.
3. The V.R. Section, High Court, Madras.
Judgment made in
S.A.No.1002 of 2021
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