Madras High Court
The Government Of Tamilnadu vs G.Nanda on 8 January, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
A.S.Nos.423 & 925 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 19.12.2023
PRONOUNCED ON : 08.01.2024
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
A.S.Nos.423 & 925 of 2012
and M.P.Nos.1 & 1 of 2012
A.S.No.423 of 2012 :-
1. The Government of Tamilnadu,
rep. by its Secretary to Government,
Hindu Religious & Charitable
Endowment Department,
Fort St. George,
Chennai – 600 009.
2. The Commissioner,
Hindu Religious & Charitable
Endowments Department,
Uthamar Gandhi Salai,
Nungambakkam,
Chennai – 600 034. ...Appellants
Vs.
1. G.Nanda
2. The Executive Officer,
Arulmigu Agastheeswara Prasanna
Venkateswara Perumal Devasthanam,
Nungambakkam,
Chennai – 600 034.
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A.S.Nos.423 & 925 of 2012
3. The Corporation of Chennai,
Rep. by its Commissioner,
Ripon Buildings,
Chennai – 600 003.
4. Chokkattan Salai Kudiyiruppor
Nala Sangam,
Rep. by its President
Dheena Dayalan,
New No.7, Chokkattan Salai,
Nungambakkam,
Chennai – 600 034. ...Respondents
PRAYER: Appeal Suit filed under Section 96 of C.P.C., to set aside the
judgment and decree passed in O.S.No.11029 of 2010 dated 04.10.2010
on the file of the Additional District Judge, Fast Track Court No.1,
Chennai.
For Appellants : Mr.N.R.R.Arun Natarajan
Special Government Pleader (HR&CE)
For Respondents
For R1 : Mr.B.Divakaran
For R2 : Mr.A.K.Sriram
For M/s.A.S.Kailasam & Associates
For R3 : Mr.Bharath Gowtham
For Ms.T.Ashwini Devi,
Standing Counsel
For R4 : No appearance
A.S.No.925 of 2012 :-
The Executive Officer,
Arulmigu Agastheeswara Prasanna
Venkateswara Perumal Devasthanam,
Nungambakkam,
Chennai – 600 034. ...Appellant
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A.S.Nos.423 & 925 of 2012
Vs.
1. G.Nanda
2. The Government of Tamilnadu,
rep. by its Secretary to Government,
Hindu Religious & Charitable
Endowment Department,
Fort St. George,
Chennai – 600 009.
3. The Commissioner,
Hindu Religious & Charitable
Endowments Department,
Uthamar Gandhi Salai,
Nungambakkam,
Chennai – 600 034.
4. The Corporation of Chennai,
Rep. by its Commissioner,
Ripon Buildings,
Chennai – 600 003.
5. Chokkattan Salai Kudiyiruppor
Nala Sangam,
Rep. by its President
Deenadayalan,
New No.7, Chokkattan Salai,
Nungambakkam,
Chennai – 600 034. ...Respondents
PRAYER: Appeal Suit filed under Section 96 of C.P.C., to allow this
appeal and set aside the judgment and decree passed in O.S.No.11029 of
2010 dated 04.10.2010 on the file of the Additional District Judge, Fast
Track Court No.1, Chennai.
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A.S.Nos.423 & 925 of 2012
For Appellant : Mr.A.K.Sriram
For M/s.A.S.Kailasam & Associates
For Respondents
For R1 : Mr.B.Divakaran
For R2 & R3 : Mr.N.R.R.Arun Natarajan
Special Government Pleader (HR&CE)
For R4 : Mr.Bharath Gowtham
For Ms.T.Ashwini Devi,
Standing Counsel
For R5 : Mr.P.T.Perumal
COMMON JUDGMENT
Both the Appeal Suits have been filed as against the
Judgment and Decree dated 04.10.2010, passed in O.S.No.11029 of
2010, on the file of the learned Additional District Judge, Fast Track
Court No.1, Chennai, thereby allowed the suit for declaration and
injunction with cost.
2. The first respondent in both appeals is the plaintiff and the
appellants and other respondents in both appeals are defendants in the
suit. For the sake of convenience, the parties are referred to as per their
ranking in the trial Court.
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3. The suit is filed for declaration and permanent injunction.
The case of the plaintiff is that she is an absolute owner of the property
situated at Door No.206, (old No.63) Valluvarkottam High Road,
comprised in C.C.No.485, O.S.No.185, R.S.No.451/7, Block No.28,
Nungambakkam Village, Chennai (hereinafter called as “the suit
property”). She purchased the said property from legal heirs of one
Balakrishnan, by the registered sale deed dated 30.03.1995 vide
document No.482/95. After purchase, the plaintiff obtained permission
for demolition and reconstruction and also paid requisite fees. Just
behind the suit property, there is a vast extent of land belonging to the
third defendant temple. There was encroachment by several general
public by putting up pucca construction. They have also unauthorizedly
formed private passage therein called Chokkattan salai. It is a private
passage and it is not maintained by the Corporation of Chennai viz.,
fourth defendant herein. The resident of Chokkattan salai used the
unauthorized private passage to reach Valluvarkottam High Road.
3.1. While being so, the encroachers have also attempted to
encroach the suit property. One of the encroachers called Shanmugam
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filed suit before the City Civil Court, Chennai, in O.S.No.3893 of 2001
for permanent injunction as against the plaintiff thereby restraining her
from putting up construction in the suit property alleging that the suit
property is a temple land. Subsequently, the said suit was withdrawn by
the said Shanmugam and the same was dismissed. However, they didn't
allow the plaintiff to put up construction as per the planning permission.
Therefore, the plaintiff lodged complaint and also approached this Court
seeking police protection in Crl.O.P.No.5570 of 2002.
3.2. The encroachers also formed an association in the name and
style of Chokkattan Salai Kudiyirupor Nala Sangam, who is arrayed as
fifth defendant, with intention to grab the property of the plaintiff. The
fifth defendant also filed writ petition in W.P.No.21231 of 2001 before
this Court alleging that the suit property belongs to the third defendant
temple. Further the said writ petition was dismissed as withdrawn with
liberty to file suit. Even then, the plaintiff could not put up construction
and filed a suit in O.S.No.6102 of 2001 as against the encroachers for
injunctions. Though, the plaintiff obtained interim injunction, she could
not proceed with construction and as such the plaintiff filed police
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protection petition in the same suit. However the concerned jurisdictional
police failed to give any police protection to proceed with the
construction.
3.3. Thereafter, the encroachers submitted representation before
the District Collector to cancel the patta issued in favour of the plaintiff.
Without considering the explanation submitted by the plaintiff, the
District Collector cancelled the patta issued in favour of the plaintiff.
Aggrieved by the same, the plaintiff filed writ petition before this Court
in W.P.No.43723 of 2002. In pursuant to the cancellation of patta, the
compound wall put up by the plaintiff was also demolished by the
defendants. The fourth defendant also issued show cause notice to stop
the construction. Hence the suit for declaration and permanent injunction.
Originally, the suit was filed before this Court in C.S.No.110 of 2003 and
thereafter by transfer, the suit was renumbered in O.S.No.11029 of 2010
by the trial Court.
4. Resisting same, the second defendant filed written statement
stating that the suit property was leased out to one Rajammal by the third
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defendant. Thereafter, ejectment suit was filed in S.No.235 of 1927 for
recovery of possession by the third defendant. By an order under Section
9 of the Tamil Nadu City Tenants Protection Act, the said land was sold
to the said Rajammal and in turn, she sold out the property by two
registered sale deeds. Now one Ravi and Saraswathy are the owners of
the property ad measuring 857 sq.ft., in S.No.451/1 present R.S.No.451/1
and the property to an extent of 865 sq.ft., in S.No.451/1 present
R.S.No.451/3, was purchased by one Ramu Chettiar and now it devolved
on his son R.Krishnan. Further, the suit property is shown as Chokkattan
salai and it is an access for the residents to reach Valluvarkottam High
Road. Therefore, the third defendant is the owner of the suit property and
the plaintiff is only encroacher.
5. The third defendant filed separate written statement stating
that the temple owns large extent of land in various survey numbers in
and around Nungambakkam and other areas, among which the suit
property has been used as road called Chokkatan salai. There are many
tenants on both sides of the road occupying the temple lands. They had
constructed superstructure on temple land several years ago and are
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paying rent to the temple. The suit land has been used by the resident as
private street and it belongs to temple. It is not under the maintenance of
the Corporation of Chennai, since it is a private street belonging to the
temple.
5.1. Further stated that at the eastern end of Chokkattan salai
abutting village road, a piece of land measuring 1772 sq.ft., was leased
out to one Rajammal by the temple and collecting rent from her.
Thereafter, ejectment suit was filed in S.No.235 of 1927 as against the
said Rajammal for deliver of possession. Thereafter, an application was
filed under Section 9 of the Tamil Nadu City Tenants Protection Act, and
ordered to sold the land to the said Rajammal. Accordingly, a registered
sale deed vide document No.1552/1932 was executed to her favour. In
turn, she sold out the said property by way of two sale deeds in favour of
one Sivagnanambal, in respect of 857 sq.ft., vide document No. 365/1935
and another sale deed in favour of one Ramu Chettiar in respect of 865
sq.ft., registered vide document No.460/1949. The property which was
purchased by Sivagnanambal was sold out to one Raju Pillai on
26.10.1953, vide document No.850/53. In turn, the said Raju Pillai sold
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out the property in favour of one N.Ravi and Saraswathi by the registered
document No.355/99. Another portion, which was purchased by Ramu
Chettiar, after his demise, his son R.Krishnan derived title over the
property and he is the owner of the portion of property ad measuring 865
sq.ft.
5.2. Therefore, the land belongs to the third defendant and the
patta issued in favour of the temple. The plaintiff obtained patta by
relying on the patta issued to one Balakrishnan. The said Balakrishnan
claimed title over the property comprised in R.S.No.451/1 by virtue of a
partition deed and it is false. The suit property was used as road for the
resident of Chokkattan salai. The documents relied upon by the plaintiff
are false and no way connected to the suit property. The plaintiff
attempted to put up construction, obstructing the resident of Chokkattan
salai from using it as road and connecting it to Valluvarkottam High
Road.
5.3. In fact, the fourth defendant had constructed a public
convenience in the suit property and necessary amenities are provided to
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the residents of Chokkattan salai. Therefore, the general public submitted
representation to remove the encroachment of the plaintiff and also filed
writ petition before this Court in W.P.No.21231 of 2001. However, it was
dismissed as withdrawn with liberty to file suit. Thereafter, the statutory
authority cancelled the patta in respect of the suit property granted in
favour of the plaintiff. Therefore, the plaintiff has no title or any right
over the suit property, since her vendor had no title over the property and
the plaintiff had mistakenly purchased the suit property. Therefore, any
construction put up by the plaintiff in the suit property is unauthorized
and liable to be removed.
6. The fourth defendant filed separate written statement and
stated that the plaintiff obtained a sanction plan based on the false
documents for the suit property. However, by the proceeding dated
26.11.2001, the District Collector of Chennai, cancelled the patta issued
in favour of the plaintiff. Therefore, the plaintiff was issued show cause
notice dated 05.12.2002, for revocation of planning permission. Basic
amenities were provided by the fourth defendant to the resident of
Chokkattan salai and the road was laid in the suit property. On receipt of
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the representation from the general public as well as the temple
authorities, the fourth defendant had taken action in accordance with law.
7. On the above pleadings the following issues have been
framed by this Court :-
“(i) Whether the plaintiff is entitled to a
declaration that the suit property absolutely belongs to
her?
(ii) Whether the plaintiff is entitled to a permanent
injunction restraining the defendants from interfering
with the plaintiff's peaceful possession and enjoyment of
the suit property?
(iii) Whether the suit property belongs to
Arulmighu Agastheeswara Prasanna Venkateswaran
Perumal Devasthanam namely, the third defendant and
whether the temple has permitted the public to use it as
an access to reach the main road?
(iv) To what relief, the plaintiff is entitled?”
On transfer, the trial Court has framed the following issues :-
(i) Whether the suit property derives from
Mr.Madurai Naicker and Mr.Munusamy Naicker under
O.S.No.561/51 or out of Mrs.Rajammal under Ejectment
Suit No.241/27?
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(ii) Whether the suit property is a private street
owned by Arulmighu Agatheeswara Prasanna
Venkateswara Perumal Devasthanam or a patta property
of the plaintiff connecting Chokattan Salai and Village
Road?
(iii) Whether the suit is bad for non issuance of
notice u/s.80 CPC to third defendant?
(iv) Whether the suit is bad for non joinder of
necessary parties?
(v) Whether the plaintiff is entitled the relief of
declaration as prayed for ?
(vi) Whether the plaintiff is entitled the relief of
permanent injunction as prayed for?
(vii) What relief parties entitled?”
8. After framing issues, the plaintiff has examined P.W.1 &
P.W.2 and marked documents in Ex.A.1 to Ex.A.29. On the side of the
defendants, they examined D.W.1 & D.W.2 and marked documents in
Ex.B.1 to Ex.B.24. While passing judgment, the trial Court re-casted the
issues as follows :-
“(i) Whether the suit property has been used as
Street by the residents of “Chokkattan Salai”?
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(ii) Whether the plaintiff is entitled to the relief of
declaration as prayed for?
(iii) Whether the plaintiff is entitled to the relief of
permanent injunction as prayed for?
(iv) Whether the suit is bad for non-joinder of
necessary parties?
(v) Whether the suit is bar for want of notice u/s.
80 C.P.C?
(vi) To what relief the plaintiff is entitled to?”
On considering the oral and documentary evidences, the trial Court
decreed the suit as prayed for. Aggrieved by the same, the third defendant
filed appeal suit in A.S.No.925 of 2012 and the defendants 1 & 2 filed
appeal suit in A.S.No.423 of 2012.
9. The learned Senior Counsel and the learned Special
Government Pleader (HR&CE) appearing for the appellants in both
Appeal Suits submitted that the suit itself liable to be dismissed on the
sole ground that the plaintiff failed to issue any notice to the third
defendant, under Section 80 of the Civil Procedure Code, which is
mandatory in nature, since the third defendant is a public servant.
Therefore, to file suit, the notice under Section 80 of C.P.C., is
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mandatory. Though the plaintiff was granted leave to file suit without
issuance of notice, it is only as against the first and second defendants.
The plaintiff obtained interim injunction only as against the private
defendants and not as against the appellants. Therefore, the said order
would not bind on the appellants in any manner.
9.1. In fact, the writ petition filed by the plaintiff in
W.P.No.43723 of 2002 was disposed by this Court, thereby directed the
plaintiff to approach the civil Court with regard to cancellation of patta.
The plaintiff has to succeed on her own case and cannot pick up holes in
the case of the defendants. Unfortunately, the trial Court found fault in
the case of the defendants and decreed the suit in favour of the plaintiff.
The Chokkattan salai is in existence from a long time as a private lane
and there is no material produced by the plaintiff to show to the contrary.
Therefore, the trial Court ought not to have shift the onus of proof on the
defendants, which had ended in miscarriage of justice.
9.2. They further submitted that the plaintiff herself admits that
some of the encroacher filed suit in O.S.No.3893 of 2001 on the file of
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the City Civil Court, Chennai, challenging the title of the plaintiff.
Therefore, there is cloud on the title over the suit property and as such
the plaintiff ought to have filed comprehensive suit instead of suit for
injunction in O.S.No.6102 of 2001 on the file of the City Civil Court,
Chennai. When the earlier suit for injunction is very much pending,
without seeking any leave under Order II Rule 2 of C.P.C., the plaintiff
filed suit before this Court in C.S.No.110 of 2003. Subsequently, it was
transferred to the City Civil Court, Chennai and re-numbered as
O.S.No.11029 of 2010. Therefore, the present suit is barred and directly
hit by under Order II Rule 2 of C.P.C.
9.3. They also submitted that in fact, the plaintiff categorically
admitted that her predecessors in title have been in possession and
enjoyment of the suit property from the time immemorial. But she had
given documents only from the year 1951 and claimed title by
prescription. Though the plaintiff had knowledge about the ejectment suit
in O.S.No.241 of 1927, she failed to produce any documents. The
plaintiff also failed to implead her predecessor to prove the title over the
property. Therefore, the non-joinder of plaintiff's vendors and
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predecessor in interest is fatal to the suit. They also submitted that the
plaintiff is failed to implead the District Collector and revenue officials
as parties to the suit, since they had cancelled the patta issued in favour
of the plaintiff in respect of the suit schedule property. She also failed to
produce any documents to show that her vendors predecessors viz., father
of Balakrishnan is the legal heir of one Kanniaymmal.
10. Per contra, the learned counsel appearing for the plaintiff
submitted that the suit property derives its title from one Mohambra
Naicker and after his demise, his properties were inherited by his two
sons viz., Munuswamy Naicker and Madurai Naicker. The said
Munuswamy Naicker instituted a partition suit in O.S.No.561 of 1951 on
the file of the II Additional City Civil Court, Madras. A compromise was
entered between the parties and compromise decree was passed by the
judgment and decree dated 28.04.1954, thereby allotting the schedule
mentioned property to the legal heirs of Madurai Naicker viz,
Balakrishnan Naicker and Arunachala Naicker.
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10.1. Accordingly, a partition deed was registered vide document
No.621/1954 dated 13.08.1954 executed between Munusamy Naicker as
one party and Balakrishnan Naicker and Arunachala Naicker as other
party. The house & ground No.11, situated at Appu Naicken Street,
Nungambakkam and the house & ground No.41, situated at Village road,
(old door No.22), Nungambakkam, Madras, were divided equally
between the plaintiff and the defendants in the said suit. Accordingly,
door No.41, Village Road, Nungambakkam, Madras, was divided into
two shares and one share on the northern side, which is the suit property
herein, was alloted to the share of Balakrishnan Naicker and Arunachala
Naicker. Thereafter, they entered into partition deed registered vide
document No.622/1954.
10.2. In fact, the said Balakrishnan had mortgaged the suit
property with Nungambakkam Saswatha Dhana Rakshaka Nidhi Ltd.,
vide doucment No.936/1981 dated 06.04.1981. Thereafter by the
registered lease deed vide document No.587/1986 dated 28.11.1986, the
suit property was leased out to the tenant. Therefore, the said
Balakrishnan was in possession and enjoyment of the suit property. After
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demise of Balakrishnan, the suit property was purchased from his legal
heirs by the plaintiff on 30.05.1995. Since the building therein was more
than 80 years old, the plaintiff applied permission for demolition and
reconstruction. Accordingly, the plaintiff obtained planing permission to
put up new construction in the suit property. Therefore, the trial Court
rightly decreed the suit in favour of the plaintiff.
10.3. He further submitted that while being so, the encroachers of
the temple land in the Chokkattan salai attempted to forcibly entered into
the property. One of the encroachers also filed suit in O.S.No.3893 of
2001 for permanent injunction as against the plaintiff not to put up any
construction. Further, the said suit was dismissed as withdrawn. Though
the patta was cancelled by the revenue authority, it was challenged before
this Court and obtained interim stay. Therefore, the suit property is not a
road and never ever it had been utilized as a road, except for the
highhanded trespass made by the encroachers. In fact, the plaintiff
demolished the existing superstructure and attempted to put up new
construction as per the planning permission granted by the fourth
defendant. Hence, he prayed for dismissal of both the appeals.
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11. Heard the learned counsel appearing on either side and
perused the material placed before this Court.
12. Having regard to the pleadings, evidence and the
submissions made by the learned counsel appearing on either side, the
following points arise for consideration in these appeals:-
(i) Whether the suit property is a private street owned by the
temple and used by the fifth defendant's residents?
(ii) Whether the suit is bad for non issuance of notice under
Section 80 of C.P.C., to the third defendant?
(iii) Whether the suit property belongs to the third defendant and
third defendant had permitted the general public to use it as access to
reach the Valluvarkottam High Road?
(iv) Whether the suit is barred under Section 180 of Hindu
Religious and Charitable Endowment Act or whether the suit against the
temple is maintainable or not?
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13. The plaintiff claimed title over the suit property by deriving
its title from one Mohambra Naicker. After his demise, it was derived by
his two sons. The said two sons had partitioned the property by the
compromise decree in O.S.No.561 of 2051 on the file of the II Additional
City Civil Court, Madras, dated 28.04.1954. The legal heirs of one son
viz., Madurai Naicker, had partitioned the property by the partition deed
dated 13.08.1954 vide document No.622/1954 and the suit schedule
property was allotted one of its sharer viz., Balakrishnan. After his
demise, his legal heir derived title over the suit property. From the legal
heirs, the plaintiff had purchased the suit property on 30.05.1995.
14. Per contra, the temple viz., the third defendant claimed title
over the property that at the eastern end of Chokkattan salai, abutting
village road, a piece of land ad measuring 1772 sq.ft., was leased out to
one Rajammal by the third defendant. The third defendant had collected
rent from her. The third defendant also filed ejectment suit in
S.No.235/1927 as against the said Rajammal for delivery of possession.
However, in the application filed under Section 9 of the Tamil Nadu City
Tenants Protection Act, it was ordered to sell the said land in favour of
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Rajammal. Accordingly, a sale deed was executed vide document
No.1552/1932 in favour of the said Rajammal. In turn, she sold the said
property in two portions by two registered sale deeds in favour of one
Sivagnanambal in respect of 857 sq.ft., vide document No.365/1935 and
another sale deed in respect of 865 sq.ft., in favour of Ramu Chettiar,
vide document No.460/1949.
15. The property which was purchased by Sivagnanambal
admeasuring 857 sq.ft., was subsequently sold in favour of one Raju
Pillai, vide document No.850/1953. In turn, he sold out the said property
in favour of Ravi and Saraswathi in document No.355/1999 and they are
the owners of the land ad measuring 857 sq.ft., in Survey No.451/1
present R.S.No.451/4. Another portion of the land owned by Ramu
Chettiar and after his demise, his son R.Krishnan derived title over the
property in respect of the property ad measuring 865 sq.ft., in S.No.451/1
present R.S.No.451/3.
16. Further the plaintiff obtained patta for the suit property
which belonged to the temple by relying on the patta issued in favour of
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one Balakrishnanan. Even according to the plaintiff, by the compromise
decree passed in O.S.No.561 of 1951, the suit property was allotted in
favour of Balakrishnan viz., the father of the plaintiff's vendors.
However, the plaintiff failed to produce any document before 1951.
Further, the plaintiff attempted to construct building in the subject
property by obstructing the general public of Chokkattan salai from using
it as road. It is connecting to the Valluvarkottam High Road. In fact, the
fourth defendant constructed a public convenience in the land and
necessary amenities are provided to the residents of Chokkattan salai.
Therefore, the residents of Chokkattan salai filed writ petition in
W.P.No.21231 of 2001. However, it was dismissed as withdrawn with
liberty to file civil suit. Subsequently, the patta issued in favour of the
plaintiff was also cancelled by the District Collector. Though it was
challenged before this Court, it was not set aside and the patta has not
been restored in favour of the plaintiff.
17. In fact, one of the resident viz., M.Shanmugam filed suit in
O.S.No.3893 of 2001 on the file of the City Civil Court, Chennai, as
against the plaintiff for permanent injunction. He also filed interim
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injunction application praying for restraining the plaintiff from put up
any construction and disturbing the residents from enjoying the suit
property as road. In the said application, an Advocate Commissioner was
appointed and the Advocate Commissioner visited the suit property and
filed his report. On the basis of the Advocate Commissioner's report, the
suit was dismissed as withdrawn.
18. Thereafter, the plaintiff filed suit in O.S.No.6102 of 2001 as
against the said Shanmugam and others including the Chennai
Corporation for permanent injunction and the same was allowed. In the
said suit, the appellants were not the parties. Without any documents to
trace out title, except the sale deed, the trial Court concluded that there is
no common passage as claimed by the fifth defendant. When the
defendants traced out the title of the suit property from the year 1927, the
plaintiff failed to produce any documents.
19. Further, the plaintiff categorically deposed that their
predecessors have been in possession and enjoyment of the suit property
in time immemorial. But she had given documents only from the year
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1951 onwards. Though the plaintiff made such evidence with regard to
documents prior to the year 1951, no documents have been produced by
the plaintiff. Further, the plaintiff failed to produce any document and
evidence to prove his predecessor's title and subjecting them to give
evidence with regard to their title over the property. Though the plaintiff
had knowledge about the ejectment suit, she failed to produce any
documents. Therefore, the plaintiff is a encroacher on the third
defendant's land. Though the plaintiff and her predecessors are in
possession of the suit property, when the encroachment over the temple
land will not confer any title over the encroachers and they shall be
removed in accordance with law. Hence, the claim of the plaintiff's
possession by description cannot be accepted.
20. It is also seen that the plaintiff filed application to grant
leave to file suit without issuance of notice under Section 80 of C.P.C., as
against the defendants 1 & 2 and the same was ordered. However, the
plaintiff failed to file any application to dispense with, for issuance of
notice under Section 80 of C.P.C., as against the third defendant. The
third defendant is an Executive Officer of Arulmigu Agastheeswara
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A.S.Nos.423 & 925 of 2012
Prasanna Venkateswara Perumal Devasthanam, Nungambakkam,
Chennai. The Executive Officer is appointed by the second defendant.
Though the Hindu Religious & Charitable Endowments Department
represented by its Commissioner, the Commissioner is appointed by the
first defendant. Therefore, the third defendant, the Executive Officer is a
public servant.
21. It is relevant to extract the provisions under Section 80 of
C.P.C., as follows:-
“80. Notice:- [(1)] Save as otherwise provided in
sub-section (2), no suits shall be instituted against the
Government (including the Government of the State of
Jammu & Kashmir) or against a public officer in respect
of any act purporting to be done by such officer in his
official capacity, until the expiration of two months next
after notice in writing has been delivered to, or left at the
office of-
(a) in the case of a suit against the Central
Government, except where it relates to a railway, a
Secretary to that Government;
(b) in the case of a suit against the Central
Government where it relates to railway, the General
Manager of that railway;
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A.S.Nos.423 & 925 of 2012
(bb) in the case of a suit against the Government
of the State of Jammu and Kashmir the Chief Secretary
to that Government or any other officer authorised by
that Government in this behalf;
(c) in the case of a suit against any other State
Government, a Secretary to that Government or the
Collector of the district;
and, in the case of a public officer, delivered to him or
left at this office, stating the cause of action, the name,
description and place of residence of the plaintiff and the
relief which he claims; and the plaint shall contain a
statement that such notice has been so delivered or left.
(2) A suit to obtain an urgent or immediate relief
against the Government (including the Government of
the State of Jammu & Kashmir) or any public officer in
respect of any act purporting to be done by such public
officer in his official capacity, may be instituted, with the
leave of the Court, without serving any notice as
required by sub-section (1); but the Court shall not grant
relief in the suit, whether interim or otherwise, except
after giving to the Government or public officer, as the
case may be, a reasonable opportunity of showing cause
in respect of the relief prayed for in the suit :
Provided that the Court shall, if it is satisfied, after
hearing the parties, that no urgent or immediate relief
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A.S.Nos.423 & 925 of 2012
need be granted in the suit, return the plaint for
presentation to it after complying with the requirements
of sub-section (1).
(3) No suit instituted against the Government or
against a public officer in respect of any act purporting
to be done by such public officer in his official capacity
shall be dismissed merely by reason of any error or
defect in the notice referred to in sub-section (1), if in
such notice -
(a) the name, description and the residence of the
plaintiff had been so given as to enable the appropriate
authority or the public officer to identify the person
serving the notice and such notice had been delivered or
left at the office of the appropriate authority specified in
sub-section (1), and
(b) the cause of action and the relief claimed by
the plaintiff had been substantially indicated.”
Thus it is clear that no suit shall be instituted as against the public officer
in respect of any act purporting to be done by such officer in his official
capacity, until the expiration of two months notice. Admittedly, no notice
was issued under Section 80 of C.P.C., to the third defendant. In fact, the
third defendant is looking after the temple administration and day to day
affairs.
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A.S.Nos.423 & 925 of 2012
22. Admittedly the plaintiff filed suit in O.S.No.6102 of 2001 on
the file of the learned City Civil Court, Chennai. Subsequently, the
plaintiff filed the present suit before this Court in C.S.No.110 of 2003,
without any leave from the City Civil Court, Chennai or from this Court,
to file this comprehensive suit. It is relevant to extract the provision
under Section Order II Rule 2 of C.P.C., as follows :-
“Order II
...........
2. Suit to include the whole claim— (1) Every suit
shall include the whole of the claim which the plaintiff is
entitled to make in respect of the cause of action; but a
plaintiff may relinquish any portion of his claim in order
to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim—Where a
plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim he shall not
afterwards sue in respect of the portion so omitted or
relinquished.
(3) Omission to sue for one of several reliefs—A
person entitled to more than one relief in respect of the
same cause of action may sue for all or any of such reliefs;
but if he omits, except with the leave of the Court, to sue
for all such reliefs, he shall not afterwards sue for any
relief so omitted.
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A.S.Nos.423 & 925 of 2012
Explanation—For the purposes of this rule an
obligation and a collateral security for its performance and
successive claims arising under the same obligation shall be
deemed respectively to constitute but one cause of action.”
Thus, the present suit is barred by Order II Rule 2 of C.P.C., since the
plaintiff failed to obtain any leave from the earlier suit in O.S.No.6102 of
2001, filed for bare injunction in respect of the very same suit property.
23. Insofar as the maintainability of the suit under Section 108
of the Hindu Religious and Charitable Endowments Act is concerned, it
is relevant to rely the judgment of this Court dated 22.04.2008 made in
A.S.No.449 of 1998, in the case of Mothi V.Arumugham vs. Commr
HR&CE (Admn), Chennai-34., which held as follows :-
“7. It is not in dispute that the land in which
'Ramar Bajanai Koodam' is situated was owned by
Sadasivam Chetty, grandfather of the plaintiff. The case
of the plaintiff is that it is a private property of the
plaintiff's family for their exclusive worship and there is
no public worship and it does not come under the
purview of the Act 22 of 1959. It is needless to say that
the burden is on the plaintiff to prove the case pleaded by
him. In the present suit, the plaintiff has filed only three
documents on his side. Exs.A1 is the Advocate's notice
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A.S.Nos.423 & 925 of 2012
dated 19.02.1996 issued by the plaintiff to the defendant
and Exs.A2 and Exs.A.3 are the order and decreetal
order of the Appellate Authority viz., the defendant, dated
26.02.1990 in A.P.No.56 of 1987 respectively. In Ex.A2
order, the Appellate Authority considered the document
filed by the plaintiff herein, which is of the year 1926 and
held that the Bajan Koodam was in existence as early as
on 1926 and was managed by five trustees, of whom, the
grandfather of the plaintiff, namely, Sadasivam Chetty
was one of the trustees and he had dedicated some
properties purchased by him in favour of 'Ramar Bajana
Koodam' by specifically mentioning in the document that
the properties were dedicated for charitable purposes to
'Ramar Bajanai Koodam' and he and his descendants
have no right whatsoever on the said properties gifted by
him and relying on the above recitals, the Appellate
Authority has concluded that 'Ramar Bajanai Koodam' is
a 'religious institution' as defined under the Act.
Therefore, the subject property belongs to the temple and
thus, the suit itself is not maintainable under Section 108
of the HR and CE Act. In view of the fact that the suit
schedule property belongs to temple, no suit is
maintainable, in view of the express bar under Section
108 of the HR&CE Act.”
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A.S.Nos.423 & 925 of 2012
Since, the suit property belongs to third defendant, the suit itself is not
maintainable as per Section 108 of the Hindu Religious and Charitable
Endowment Act.
24. In view of the above discussions, all the points are answered
as against the plaintiff and the suit is liable to be dismissed. Accordingly,
the judgment and decree dated 04.10.2010, passed in O.S.No.11029 of
2010, on the file of the learned Additional District Judge, Fast Track
Court No.1, Chennai, is hereby set aside and the suit in O.S.No.11029 of
2010 stands dismissed.
25. In result, both the Appeal Suits are allowed. Consequently,
connected miscellaneous petitions are closed. There shall be no order as
to costs.
08.01.2024
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
rts
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A.S.Nos.423 & 925 of 2012
To
1. The Additional District Judge,
Fast Track Court No.1, Chennai,
2. The Secretary to Government,
Government of Tamilnadu,
Hindu Religious & Charitable
Endowment Department,
Fort St. George,
Chennai – 600 009.
3. The Commissioner,
Hindu Religious & Charitable
Endowments Department,
Uthamar Gandhi Salai,
Nungambakkam,
Chennai – 600 034.
4. The Executive Officer,
Arulmigu Agastheeswara Prasanna
Venkateswara Perumal Devasthanam,
Nungambakkam,
Chennai – 600 034.
5. The Commissioner
Corporation of Chennai,
Ripon Buildings,
Chennai – 600 003.
6. The President
Chokkattan Salai Kudiyiruppor
Nala Sangam,
New No.7, Chokkattan Salai,
Nungambakkam,
Chennai – 600 034.
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A.S.Nos.423 & 925 of 2012
G.K.ILANTHIRAIYAN, J.
rts
Common Judgment in
A.S.Nos.423 & 925 of 2012
and M.P.Nos.1 & 1 of 2012
08.01.2024
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