Madras High Court
T.Sathaya Narayanan vs M.Gnansekaran on 28 August, 2023
S.A No.654 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.08 .2023
CORAM:
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
S.A No.654 of 2019
T.Sathaya Narayanan ... Appellant
Vs.
1.M.Gnansekaran
2.Arulmigu Kariaperumal Temple,
Rep by its present Executive Officer,
Manickam S/o. Marimuthu
Annadhanapatti,
Kannankurichi,
Salem – 8.
3.Gopal
...Respondents
PRAYER: This Second appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree dated 17.12.2018 made in A.S
No. 52 of 2007 on the file of I Additional District Judge, Salem, confirming
the judgment and decree dated 22.12.2003 made in O.S No. 127 of 1992 on
the file of Principal District Munsiff, Salem.
1
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S.A No.654 of 2019
For Appellant: Mr.M.Sneha
For R2 :Mr.S.T.Barath Gowtham
for Mr.T.R.Rajaraman
For R1 : No appearance
For R3 : Addressee Cannot be located.
JUDGMENT
The appellant herein is the second respondent in A.S No.
52 of 2007 as per order in I.A No. 598 of 2015 and I.A No.976 of 2016 in
A.S No. 52 of 2007, on the file of the 1st Additional District Judge, Salem.
The said appeal was arising out of decree passed in O.S No. 1227 of 1990
by the Principal District Munsif, Salem, the said suit was filed by the
Kaliaperumal Temple/first respondent herein against one Muthusami
Pillai(died) for the relief of declaration and recovery of possession with
other relief for damages, in which, he contending that the suit property as
described in the plaint schedule in survey No. 4/1, 4/2 and 4/3 with an
extent of 3.50 acres is situated in Annathanapatty Village, Salem District,
with T.D No. 655 as belongs to the temple as Devadayam land as per the
patta granted by the Enam Abolition Tahsildar order in S.R. 6/68 dated
05.02.1968, the defendant Muthusami Pillai claimed himself as alleged
hereditary Trustee of the said temple who managed and enjoyed the
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S.A No.654 of 2019
properties. Though there is no hereditary trustee for the said temple, as per
the new amendment Act, 46/1991 Hindu Religious and Charitable Act
plaintiff was appointed as executive officer of the said temple on the
strength of the said Act he demanded the defendant Muthusamy Pillai to
deliver the Inam land to him, but the defendant refused and also he leased
out the said land to various people. So the defendant was called upon to
deliver the possession of the property through notice dated 10.07.1992 but
in his reply he claiming right over the property by way of adverse
possession and also denied the plaintiff's claim stated that he is not enjoyed
the property as a trustee of the temple nor he managed the temple affair.
Hence, suit was filed.
2. The first defendant Muthusamy Pillai filed written statement
not accepted the extent of the property as described in the plaint schedule
and stated that he enjoyed only 2.40 acres and remaining extent of 1.10 acre
was enjoyed by one Rathinasamy Pillai and Patta also granted in his favour.
Further, he contended that temple not raised objection for granting patta.
Further the property was enjoyed by him and his ancestors for more than 60
years and his family prescribed the title by way of adverse possession
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S.A No.654 of 2019
against the temple. Adjacent to the suit land he has possessed his own patta
land through it he used this land as pathway and all these years he enjoyed
the suit property along with his property and claimed title by way of adverse
possession and also denied that he is not trustee at temple affairs. During the
pendency of the proceedings he was died and his son was impleaded as
second respondent. Before the Trial Court issues were framed based on the
oral and documentary evidence the Trial Court concluded that as per Ex.A1
in the year of 1968 as per the Inam abolition Tahsildar USR No. 6/1968 the
suit property was assigned to the temple from that onwards temple is the
owner of the property and as non fluoridated trustees the defendant has no
independent right. Further Muthusamy Pillai as a Trustee managed the
affairs of the temple so the copy of Patta was issued in the name of Kalia
Perumal Samy Temple in S.F No. 57/2 Annathanapatty by Trustee
Muthusamy Pillai Trustee. So the defendant has no independent right over
the property and also in B Register property stands in the name of the
Temple. Accordingly, the Trial Court declared plaintiff temple as absolute
owner of the property, not accepted case of the defendant that the
Muthusamy Pillai perfected title over the extent of 2.40 acres by way of
adverse possession and also not accepted the contention that remaining
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S.A No.654 of 2019
extent is enjoyed by one Rathinaamy Pillai and suit decreed.
3. Challenging the said findings A.S No. 52 of 2007 was filed
before the I Additional District Judge, Salem, during the appeal proceedings
the legal heirs of the Rathinasamy Pillai filed I.A No. 976 of 2016 and I.A
No. 598 of 2010 praying to implead themselves as necessary parties to the
appeal for the reason that Patta was granted in their favour by settlement
Tahsildar on 27.03.2000 for an extent of 0.99 cents in S.F No. 4/3 thereby
impleaded themselves as necessary party and the first appellate Court
allowed the application and tried the issue along with main appeal and
finally held that entire suit property belongs to the plaintiff's temple neither
Muthusamy Pillai nor the newly added respondents 2 and 3 legal heirs of
Rathinasamy has right over the property. Furthermore, order passed by the
Settlement Tahsildar in the year 2000 has not binding in anyone for the
reason that said order was passed during the pendency of the original suit
filed by the plaintiff's temple. Accordingly, appeal was dismissed.
4. Challenging the said findings newly added respondents
second respondent in the first appeal filed this second appeal stating that
first appellant judge failed to appreciate the documents adduced on the side
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S.A No.654 of 2019
of the defendant which were marked as Ex.B8, Ex.B9,Ex.B10 inspite of
that allowing the appeal as such is totally unfair and liable to be set aside.
Further the first appellate Court erred in not considering the fact and law,
nature of the land having been determined as Ryotwari without appreciating
that decreed suit based on the order passed by the Inam Tahsildar in the year
1968 as such is totally misconception of law and facts. Besides, the Trial
Court failed to appreciate the fact that the revenue officials who
categorically stated that suit property is under the possession of the
defendants uninteruptedly for more than 30 years and without appreciating
that fact the Court below cocluded that suit property belongs to the temple
as such is peverse in nature. Hence he prayed to set aside those findings by
allowing the appeal.
5. By way of reply, the learned Counsel for the plaintiff
submitted that appellant is third party to the suit proceedings but without
considering that Court below added him as party as such is not valid in law.
Further, submitted that he obtained order of patta during the pendency of the
suit proceedings thereby he contended that appellant has no right to proceed
with this appeal. Further he also argues that the Court below rightly
appreciate Ex.A1 which was assigned by the Inam Tahsildar in the year
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S.A No.654 of 2019
1968 in favour of the temple thereby temple is the owner of the property
and the claim of the defendant was rightly rejected by the Court below
needs no interference. Hence prayed to dismiss the appeal as no merits. This
Court admitted the second appeal with the follwing substantial questions of
law:
I. Whether it is the duty of the plaintiff who seeks a declaration
of title over the property to implead all the contesting rival claimants or not?
II. Whether a party to the proceedings under Tamil Nadu Minor
Inams (Abolition and conversion in to Ryotwari) Act, 1963 having
participated and allowed the proceedings, can be permitted to re-agitate the
same before the civil Suit.
Iii.Whether the law permits a party to re-agitate the same issues
in a civil suit which were raised, agitated and decided in the proceedings
under the Tamil Nadu Minor Inams (Abolition and conversion into
Ryotwari) Act, 1963, after allowing it to become final.
6. The fact reveals that plaintiff being the Arumigu
Kaliaperumal Temple for sake of covenience referred to as ''Temple''
represented by Executive Officer filed the said suit against one
Muthusamipillai for the relief of declaration and recovery of possession
claiming that the suit property to an extent of 3.50 acres in S.No. 4/1 and
4/2 were granted in the name of the above Temple as per T.D No. 655 as
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S.A No.654 of 2019
Devadayam for the mainitanence of the said Temple for which Patta also
granted by the Inam Abolition Tahsildar as per order dated 05.02.1968 in
S.R No. 6/68. The contention of the plaintiff is that at that time as a non
heridatary trustee Muthusamipillai managing the temple affairs and enjoyed
the property. As per New Amendment Act of 46/91 of Hindu Religion and
Charitable Endowments Act, 1959, all non heridatary trustee holding office
as non heridatary trustee ceased to be non trustees on the date of cominng
into force of the said Act and only Government Servants should alone take
charge of the Temples. Hence, as per the said Act Executive officer of the
said Temple assumes charge and demanded the defendant to deliver the
possession of the suit property from that defendant but he denied, after
giving notice there was no response from the defendant plaintiff filed a suit.
On the other side, the defendant claimed that out of 3.50 acres he enjoyed
only 2.50 acres uninteruptedly and before that his grand father enjoyed the
property thereby he claimed the property by way of adverse possession
against the Temple and also denied that he was not managed the temple
affairs as non heridatary trustee. But during the evidence the witness
examined on the side of the defendant as D.W.2 and D.W.3, who admits that
Muthusamipillai was managed the temple affairs. In reply notice, Ex.A6 he
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admits that the Patta was assigned in the temple name representing by his
name but he possessed and enjoyed the property only for an extent of 2.40
acres when there is no income derived from the land he utilised legal
income from that land by giving salary to the Pujaries of the temple and
also stated that he is willing to pay any amount as fixed by the HR&CE for
the suit property and also suggested the authorities to pass resolution to
sold as a agricultural land in his favour for valid consideration. Therefore,
though the defendant Muthusamipillai claimed that had not managed the
temple affairs but his own reply he admitted that he had paid salary to the
pujaries from the income derived from the said land. Besides, he also
confirmed that patta was assigned in the name of the temple representing by
his name as (Dharma kartha) and also willing to purchase the land for the
valid consideration which clearly proves that he admits the title of the
temple. It is settled proposition that admission itself the best evidence
accordingly to that effect court rightly appreciated all these aspects which
needs no interference. Apart from that the plaintiff also proved the title of
the suit property stands in the name of the temple by relying Ex.A1 which
is order passed by the Inam abolition Tahsildar granting patta in the name of
the Temple in S.R. No. 6/68 dated 05.02.1968. Furthermore, D.W.1 son of
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Muthusamipillai during the trial admits that patta was assigned in the name
of the temple. Therefore, claim of Muthusamipillai is that he enjoyed 2.40
acres out of suit properties uninteruptedly for more than 60 years and
perfected the title by way of adverse possession and also not be accepted
for the reason that he himself admits that in his reply notice that he managed
the affairs of the temple as a trustee and paid salaries to Pujaries. Therefore,
while as a Dharma kartha (non-hereditary) he managing the temple affairs
and posssed and enjoyed the suit property but not possessed and enjoyed
the same independently uninteruptedly as he claimed in the written
statement. Therefore, the Court below rightly rejected claim of adverse
possession which needs no interference.
7. Another objection raised by the defendants is that
Muthusamy Pillai enjoyed 2.50 acres and the remaining 1.10 acre was
enjoyed by the Rathinasamy Pillai who is non other than close relative of
Muthusamy Pillai. Now, the respondent 2 and 3 in first appeal and the
appellant herein claiming that as per the order passed by the settlement
Tahsildar Patta was granted in their name by considering Muthusamy Pillai
possession and right over the property for an extent of 0.99 cents in S.No.
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S.A No.654 of 2019
4/3 an extent of 0.99 cents by its order dated 27.03.2000 therefore he
claimed that he is owner of the said extent and denied the temple's right
over the said land. On perusal of order passed by the settlement Tahsildar
dated 27.03.2000 it was issued during the pendency of suit proceedings
pertaining to the possession of the suit property. Before the settlement
Tahsildar one Chennikrishan filed an application claiming patta for an
extent of 2.40 acres of land. During the suit proceedings one Thaalaimai
Iyeer son of Narasima Iyer filed an application to implead himself as party
to the proceedings. In that enquiry both the said petitioners claiming that
Rajammal who is close relatives of the said petitioner was given the said
land as monetary benefit in order to perform the pooja for said temple till
date the said property was enjoyed by the petitioners and the patta also
granted in favour of the said Rajammal. Thereafter, the said Rajammal died,
she was maintained by the petitioner since she has no legal heirs before her
death she executed unregistered Will dated 15.08.78. Hence, after demise
of the Rajammal the petitioners as legal heirs enjoyed the property based on
the legal heir certificate the said fact was proved. Further they claimed that
Muthusamy Pillai has no right over the suit property. In fact, Rajammal
alone heridatary Pujari for the said Temple from the year 1966 onwards in
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order to grab the property, Muthusamy Pillai filed suit in O.S No. 1227 of
1992 thereby petitioners prayed to issue patta in their favour. On the other
side, Temple authorities submitted their objections stating that O.S No.
1227 of 1992 pending before the Civil Court land also stated that property
was classified as Devyam the petitioner has no right over it. But, during the
enquiry nobody appeared on the side of the temple authorities despite giving
several opportunities only on hearing petitioners and their objections other
records Settlement Tahsildar granted patta by considering the possession of
the petitioner as well as the legal heirs of the Muthusamy Pillai also not
raised any obejection to grant patta in favour of the petitioner. Accordingly
patta was granted holding that one Rajammal was heridatory trusttee to the
Temple and as per the Will present petitioners perfected right over the
property. Accordingly, Survey No. 4/3 for the extent of 0.99 cents Ryot wari
patta was issued in favour of the legal heirs of the Chennikrishan, One of
the legal heir Sathyanarayanan is first appellant herein.
8. On perusal of order passed by the Settlement Tahsidar dated
27.03.2000, which was marked before the first apellate court along with
impleading applications, it clearly reveals that during the pendency of the
suit proceedings and in the absence of the temple authorities the Revenue
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authorities passed order in spite of that objection raised by the temple
authorities in the said enquiry proceedings. Furthermore, temple authorities
filed a suit to declare the title over the suit property and Civil court only
having right to decide title of the property. While that being so, the
Settlement Tahsildar granted patta in favour of the one Sathanarayanan and
Gopal as such is non est in law. Thereby issuance of the patta dated
27.03.2000 is null and void. It is settle proposition that revenue authorities
have no right to declare title of the property only civil Court alone having
jurisdiction. Furthermore, during the pendency of the suit proceedings the
patta was granted which clearly shows that both were colluded together and
going against the interest of the temple which was rightly appreciated by the
Court below. Furthermore, Rajammal Will was not proved before any of the
Court of law without which said Sathiyanaryanan and Gopal has no right to
claim over the property. Even there was alleged Will said to be executed by
the Rajammal but she has no right over the said property. Further it reveals
that property was assigned in favour of the Temple and one Muthusamy
Pillai who manage the Temple affaris as non-heridatary trustee, after new
amendment Act Executive Officer taken over the temple affairs and
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Muthusamy Pillai is bound by the Act. During the pendency of suit, present
appellants obtained patta who have neither title nor their predecessor in
title, after the new Act, temple is entitled to re-agitate the matter afresh
cause of action of the present case arose after amendment. Accordingly,
questions of law 1, 2 and 3 are answered.
9. Accordingly, appeal is dismissed. Further, the patta issued
by the Tahsildar dated 27.03.2000 is liable to be set aside since because
during the pendency of suit proceedings appellants illegally obtained patta.
Therefore, Patta dated 27.03.2000 granted in favour of the appellants is set
aside in respect of S. No.3, 4/1 and 4/2 and they are deemed to be an
encroacher's thereby Temple is entitle to proceed against the defendant's as
well as respondents 2 and 3 in first appeal through E.P proceedings. No
cost. Consequentially, connected miscellaneous petitions are closed.
28.08.2023
pbl
T.V.THAMILSELVI,J.
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S.A No.654 of 2019
Pbl
To
1. The I Additional District Judge, Salem.
2.The Principal District Munsiff, Salem.
3.The Section Officer,
V.R Section,
SA.No.654 of 2019
28.08.2023
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