Madras High Court
Sree Muthuvinayakar vs K.P.Subbiah (Deceased) on 29 May, 2024
S.A.No.319 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 28.03.2024
PRONOUNCED ON : 29.05.2024
CORAM
THE HON'BLE MR.JUSTICE G.ARUL MURUGAN
S.A.No.319 of 2006
Sree Muthuvinayakar
Kamakshiamman Ekambareshwarar Devasthanam,
represented by its Secretary,
C.P.Devaraj,
Coimbatore Town. ... Appellant
vs
1.K.P.Subbiah (Deceased)
2.K.Gopi Achary
3.S.R.Balasubramaniam
4.P.G.Shanmugavaradhan
5.B.Rajan
6.Radha Subbiyan
7.Ramani Vijayan
8.Certified Goldsmith Association,
represented by its Managing Trustee,
K.P.Subbiyan,
Coimbatore. ...Respondents
(Respondents 6 and 7 were recorded as legal heirs of the deceased first
respondent vide order, dated 06.03.2019)
1/48
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S.A.No.319 of 2006
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree, of Principal District Judge's
Court at Coimbatore, dated 15.07.2004 in A.S.No.179 of 2001 reversing the
judgment and decree of the III Additional Subordinate Court at Coimbatore,
dated 31.07.2001 in O.S.No.656 of 1991.
For Appellant :Mr.S.Mukunth
Senior Counsel
for Ms.T.R.Gayathri
for M/s.Sarva Bhauman Associates
R1 :Died
For R2, R3, R5
and R7 :Mrs.Chitra Sampath
Senior Counsel
for Mr.S.Kadarkarai
For R4 and R8 :No appearance
*****
JUDGMENT
This Second Appeal is filed challenging the judgment and decree of
the Principal District Court, Coimbatore, dated 15.07.2004, in A.S.No.179 of
2001, reversing the judgment and decree of the III Additional Subordinate
Court at Coimbatore, dated 31.07.2001 in O.S.No.656 of 1991.
2.The plaintiff is the appellant herein and the defendants 1, 3, 6 to 11
are the respondents herein. The defendants 2, 4 and 5 died pending trial.
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During the pendency of the appeal, the first respondent/first defendant also
died and the sixth and seventh respondents were recorded as his legal heir.
3.For the sake of convenience, the parties are referred to as per their
ranking before the trial court.
4.According to the plaintiff, Sree Muthuvinayagar Sree
Kamatchiamman Ekambareswara Devasthanam is a Trust and the suit
property belongs to the plaintiff Devasthanam. The defendants are Managing
Trustees of “Certified Goldsmith Association”, “Sri Visweswara Trust” and
“Lakshmiammal Educational Trust”. On 10.07.1979, the plaintiff
Devasthanam and the Certified Goldsmith Association entered into an
agreement to promote the social, religious, arts, educational and general
welfare of the Viswakarma community. Again on 13.02.1985, the plaintiff
Devasthanam entered into another agreement with the defendants.
5.As per the earlier agreement, the Certified Goldsmith Association
was allowed to make construction in the suit property after preparing a plan,
obtaining approval from the Devasthanam and sanction from the Municipal
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Corporation and use it without paying any rent. As per the second
agreement, the Association can build new construction as agreed thereon,
but, however, 50% of the rental income realized from 4 shops, should be
paid to the Devasthanam. Pursuant to the agreements, buildings were
constructed in the suit property and in fact, Sri Visweswara Vidyalaya
School and four shops were constructed. The first defendant being the
Managing Trustee of Sri Visweswara Trust is receiving the rent from the
four newly constructed shops and paid a sum of Rs.1,000/- per month being
50% of the rent and also received receipts from the Devasthanam. When, as
per the agreement, the defendants should account for the total rents, they
have failed to do so. Also, the induction of the tenants should have been
done only after the consultation with the Devasthanam. The first defendant
had inducted tenants without the knowledge and consent of Devasthanam
and also received Rs.50,000/- per shop as advance for the four shops, which
has not been accounted for. The agreement contemplates that the Municipal
Corporation taxes, water, land taxes and charges have to be paid in the name
of the plaintiff Devasthanam but however, the first defendant has paid in his
name and is retaining the receipts. Since the activities of the first defendant
is prejudicial to the interest of the Devasthanam, the object of the
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agreements is not fulfilled and hence, both the agreements have become
automatically cancelled.
6.In fact, on 28.02.1991, the defendants have entered into a further
agreement among themselves without the consent of Devasthanam, thereby,
the defendants have violated the terms of the agreements and as the
defendants 1, 9 and 10 are slowly attempting to convert the Devesthanam
properties into their properties and further, the plaintiff Devasthanam has not
been informed about the formation of Sri Visweswara Trust and
Lakshmiammal Educational Trust, the plaintiff issued notice on 21.03.1991
to the defendants calling them to revoke the agreement, but since an evasive
reply notice was issued, the plaintiff issued a rejoinder notice and filed the
suit for declaration to declare the agreement as void and for permanent
injunction and recovery of possession.
7.The defendants resisted the suit by filing written statement
contending that the plaintiff Devasthanam is a denominational Temple
belonging to Viswakarma Community of Coimbatore Town, as declared by
the judgment and decree, dated 18.02.1980, in A.S.No.79 of 1989 on the file
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of the I Additional Subordinate Court, Coimbatore. The Viswakarma
community consists of five sub-sects, viz., (1)Blackshmith (Manu),
(2)Carpenters (Mayan), (3)Kannar (Durusta), (4) Sculptures (Silpis) and
(5)Goldsmith (Diswakiya) and also the community is having several
organizations. The Certified Goldsmith Association is a Society registered
under the Tamil Nadu Societies Registration Act, 1975, having 1037 life
members. But the plaintiff Devasthanam, which also belongs to the said
Viswakarma community, has no scheme for its administration and the
properties and therefore, the plaintiff, who has verified the plaint, has no
locus standi to file the suit.
8.In fact, Viswakarma community people have filed an application
before the Deputy Commissioner, HR & CE Department, for formation of a
scheme for the administration of the plaintiff Devasthanam and its properties
under Section 64 of the Tamil Nadu Hindu Religious and Charitable
Endowment Act, in O.A.No.25 of 1991 and the same is still pending. Apart
from several properties, the plaintiff Devasthanam owns a vacant site
measuring an extent of 5141 sq.ft., in Sukrawarpet Street in Coimbatore
Town in T.S.Nos.7/221 to 227 of Block-11 and another extent of 1754 sq.,ft.,
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totally, 6895 sq.ft., which is bounded on the west by the land belonging to
Lakshmiammal Educational Trust and on the eastern side by the land
belonging to Sri Visweswara Trust. This portion of the land is called “Jambu
Savari Mandapam”, which had some dilapidated buildings.
9.The Certified Goldsmith Association has objects to run a School and
therefore, the plaintiff Devasthanam entered into agreement and granted
licence in respect of the land measuring 5141 sq.ft., by a registered
agreement, dated 10.07.1979, whereby, the Association was permitted to
carry out its objects by constructing a School in the site. Thereafter, the
Certified Goldsmith Association by creating a Trust under the name and
style of “Sri Visweswara Trust” with effect from 26.03.1978, as declared by
an instrument of Trust, dated 15.12.1983, purchased the adjacent site
measuring 1137 sq.ft., and have put up a School building thereon under the
name and style of “Visweswara Vidyalaya” occupying the said site and part
belonging to the plaintiff Devasthanam. For the purpose of further expansion
of the School, the plaintiff Devasthanam granted a further licence in respect
of the remaining site area of 1754 sq.ft, under a registered agreement, dated
13.02.1985. As at the time of executing the second agreement, there was a
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dilapidated building and there were several occupants, the Association had
evicted them by spending considerable expenses and also have demolished
the dilapidated building and constructed a new building by providing
quarters for Archakars, as contained in the agreement. It is specifically
mentioned in the agreements, dated 10.07.1979 and 13.02.1985 that the said
licences are irrevocable, as it has been entered into for the purpose of
carrying the common object of the plaintiff Devasthanam and the Certified
Goldsmith Association, as both are functioning for the benefit of
Viswakarma community.
10.While so, as the first defendant and his wife and daughter, who are
the defendants 9 and 10 had created a Public Charitable Trust in the name
and style of “Lakshmiammal Educational Trust” under a registered trust
deed, dated 19.08.1988, with the same avowed object, they purchased a site
in T.S.No.217 and put up a construction for the expansion of the Sri
Visweswara Vidyalaya in a larger scale with the funds mobilized by them.
As it was suggested that the management of Visweswara Vidyalaya should
be transferred to the said Lakshmiammal Educational Trust, as it got
resources to expand the School, with the consent of the plaintiff
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Devasthanam and the Certified Goldsmith Association, a plan was submitted
for putting up a construction in the lands purchased in T.S.No.217 along
with the lands in T.S.Nos.221 to 227 covered under the two agreements and
also including the lands in T.S.No.7/233, belonging to the Sri Visweswara
Trust and approval was obtained from the Coimbatore City Municipal
Corporation on 10.05.1989 and construction has been put up at the cost of
Rs.11,55,000/- by securing loans from the Bank. After the completion of the
construction in May 1990, the said Visweswara Vidyalaya, became a
recognized Matriculation School in June 1990.
11.As such, the building put up by the Lakshmiammal Educational
Trust, in all now consist of three floors, viz., ground plus two floors. In the
ground floor, there are seven shops, which are situated on the east and north-
south entrance gate and five shops are situated on the east entrance. As per
the agreement, two residential quarters have been constructed in the
Devasthanam land for Archakars of the plaintiff Devasthanam and provided
to them and further four shops have been constructed and rented out and
50% of the rents, as per the agreement, are paid to the plaintiff
Devasthanam. Further, as the entire building of the School is lying as a
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single unit, the tax assessment for the property stands in the joint names of
Lakshmiammal Educational Trust and the plaintiff Devasthanam.
Lakshmiammal Educational Trust is only established for convenience and it
is a delegate of the Certified Goldsmith Association.
12.Additional written statement was also filed contending that the suit
is bad for non-joinder of necessary parties and that the suit filed without
making Certified Goldsmith Association, Sri Visweswara Trust and
Lakshmiammal Educational Trust, as parties, is not maintainable to sustain
the relief and the plaintiff has not paid the proper Court fee, for the relief
claimed in the suit.
13.After nearly nine years from initiating the suit, the 11th defendant
was impleaded in the suit and the 11th defendant filed additional written
statement contending that as the suit property was dealt with under two
separate agreements and the conditions contained therein are also separate
and distinguishable, the suit filed by the plaintiff by clubbing the two cause
of actions, is not sustainable. The fact remains that the School is run in the
property, which is commonly enjoyed by three entities, where the middle
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portion known as Jambu Savari Mandapam is owned by Devasthanam, the
western portion is owned by Lakshmiammal Educational Trust and the
eastern portion is owned by Sri Visweswara Trust. The main entrance for
the School for this property is through the property of the plaintiff
Devasthanam. The staircases on the eastern side and on the western side lies
in the property belonging to Lakshmiammal Educational Trust and Sri
Visweswara Trust and therefore, the property is inseparable and form a
single unit. The extent of lands owned by Lakshmiammal Educational Trust
is 4283 sq.,ft and the extent owned by Sri Visweswera Trust is 1337 sq.ft.,
and the extent owned by the plaintiff Devasthanam is 5141 sq.,ft covered
under the first agreement, dated 10.07.1979 and 1754 sq.ft., covered under
the second agreement, dated 13.02.1985, in all, an extent of 6895 sq. ft., and
the building has been constructed in all the three portions as a single unit.
14.As the property is indivisible, if the relief of possession is granted,
the property has to be divided by breaking open the building. The total
constructed area of the School building is 14,613.75 sq.ft., having 4396
sq.ft., in ground floor, 4985 sq.ft., each in the first and second floor, apart
from the staircase. The School building is completely furnished having a
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strength of around 1200 students along with 52 Teachers. About half of the
students are girl students and the School is having 100% results
consecutively for the past three years in both 10th and 12th standards. The
School is taking care of the interest of the community and out of the total
number of students, about 65% of them are from Viswakarma community
being benefited from the School, which is evident that the interest of the
community is being taken care of by the School.
15.In fact, earlier due to dilapidated building and encroachment made
by huts and encroachments, even the practice of Deity being stationed at
Jambu Savari Mandapam during procession once in a year had to be
stopped. But, however, after the same was demolished by the defendants
and constructions were made, the practice has been revived and now the
Deity is stationed at Jambu Savari Mandapam during procession and in fact,
expenses are made by the defendants and contributions are also made
substantially to upkeep the Temple. Only as funds were not available and
temporary constructions could be made, for the object of expanding the
School and obtaining approval, the internal arrangement of forming of the
Trust was undertaken not with any third parties but within the trustees and
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thereafter, the buildings have been constructed by incurring huge expenses
and now the full-fledged School is running by promoting the developments
of Viswakarma community. Therefore, as the conditions, for which the
agreements were executed, have not been violated, they sought for dismissal
of the suit.
16.During trial, the Secretary of the plaintiff Devasthanam was
examined as PW-1 and marked Ex-A1 to Ex-A18 and on the side of the
defendants, the first defendant was examined as DW-1 and marked Ex-B1 to
Ex-B13.
17.The trial Court, after analyzing the documents and evidence,
decreed the suit. The trial Court found that, as only licence has been issued
in favour of the 11th defendant, the same could not have been transferred.
The trial Court also found that the plaintiff Devasthanam was not consulted
during the induction of the tenants and the transfer to Lakshmiammal
Educational Trust is wrong and in violation of agreements and the
defendants have filed rental receipts only from 1991 to 2001 in Ex-B1 series,
which is after filing of the suit and further, since it is admitted in the written
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statement that the tax receipts are jointly issued in favour of the
Devasthanam and the Society, which is violative of the conditions contained
in Ex-A4 and Ex-A5 agreements and further, as the plaintiff Devasthanam is
represented by the de-facto Trustee/ Secretary, the suit is maintainable and
thereby, directed to restore the possession to the plaintiff within a period of
three months. Aggrieved, the defendants filed an appeal in A.S.No.179 of
2001 on the file of Principal District Court, Coimbatore.
18.The lower appellate Court, after re-appraising the evidence, by
judgment and decree, dated 15.07.2004, allowed the appeal and set aside the
decree of the trial Court. The lower appellate Court found that as per the
conditions in the agreements in Ex-A4 and Ex-A5, the Devasthanam cannot
unilaterally cancel the same and further, the plaintiff had not come up with
any claim, as to from which date, there was default in payment of rent and
for which period, there is default. The lower appellate Court mainly found
that since even from the admitted case that the building is lying jointly in the
lands belonging to Lakshmiammal Educational Trust, Sri Visweswara Trust
and Devasthanam, the suit is bad for non joinder of necessary parties, as the
Lakshmiammal Educational Trust and Sri Visweswara Trust has not been
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impleaded, as party to the suit. Aggrieved, the plaintiff is before this Court
on appeal.
19.This Court, by order, dated 30.03.2006, admitted the Second
Appeal and framed the following substantial questions of law:
“(1)Whether the lower appellate Court is correct in law in
reversing the well considered judgment and decree of the
Additional Subordinate Jude and non-suiting the plaintiff only on
the ground of non -joinder?
(2)Whether the Lakshmiammal Education Trust and
Visveshwara Trust are proper and necessary parties to the suit, as
contemplated under Order 1 Rule 9 CPC?
(3)Whether the lower appellate Court is correct in law in
non-suit the appellant on the ground of non-joinder as a mere
plea made by the respondents in their additional written statement
filed nearly seven years after the filing of the original written
statement?
(iv)Whether the lower appellate Court is correct in law in
taking up the issue of non-joinder especially when the trial Court
had not raised this issue and the same has not been questioned by
the respondents even in their grounds of appeal?”
20.Mr.S.Mukunth, learned Senior Counsel appearing for the appellant
argued that as the defendants violated the terms and conditions of the
agreement contained in Ex-A4 and Ex-A5, the purpose for which the
agreements were executed got lost and therefore, the plaintiff has come up
with the suit for declaration and for recovery of possession. When the
agreement specifically contemplates that the plaintiff Devasthanam has to be
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consulted while inducting tenants and fixing the rent, the defendants have
unilaterally inducted the tenants and have collected advance and have not
accounted the same. Further, 50% of the rents collected by them from the
tenants has not been paid to the Devasthanam, as contained in the
agreements and as such, there is a clear violation in the terms and conditions
of the agreements and therefore, the plaintiff is entitled to seek for
cancellation of the agreements and recovery of possession.
21.The learned Senior Counsel further contended that when the
defendants can only pay the taxes and charges and obtain receipts in the
name of plaintiff Devasthanam, in clear violation of the clause, the
defendants have paid the taxes and obtained joint receipts by including their
name, which shows their real intention to slowly usurp the property of the
plaintiff Devasthanam. The learned Senior Counsel further contended that
when the defendants claim that they have paid the rents, the onus is on the
defendants to produce the receipts to prove that the rents were paid.
Admittedly, the rental receipts filed in Ex-B1 series, are all pertaining to the
period after 1991 and when they were able to file receipts after the suit,
nothing prevented the defendants to file the receipts obtained prior to the
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filing of the suit. As such, it could be inferred that no receipts were available
with them, as the rents were not paid.
22.The learned Senior Counsel further contended that even though the
licence was granted in favour of the 11th defendant, whereby, permission was
granted to construct the building for the purpose of the School, the 11th
defendant have unilaterally created Sri Visweswara Trust and also
Lakshmiammal Educational Trust and the buildings have been transferred to
Lakshmiammal Educational Trust. As the suit property was only handed
over to the 11th defendant, subsequent transfers of the Visweswara Vidyalaya
School run by Sri Visweswara Trust and Lakshmiammal Educational Trust
are illegal, which is in clear violation of the conditions of the agreements in
Ex-A4 and Ex-A5 and since, the transfer has been unilaterally done without
the consent of the plaintiff through Ex-B10, the plaintiff Devasthanam is not
bound by those transfers and they are merely sub tenants from the 11th
defendant and therefore, they are not necessary parties to the suit. When the
lands belonging to the plaintiff Devasthanam have been given to the 11th
defendant for a noble object for running a School, the two Trusts have been
created and transfer of properties has been made and further since the
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agreements were violated by not paying the rent and also unilaterally
inducting the tenants, in view of the violation of the agreements, through
which the licence was granted automatically get cancelled and the plaintiff
has rightly filed the suit for recovery of possession. The plaintiff
Devasthanam being the owner of the property always has the right to seek
for possession of the property, as per Section 5 of the Transfer of Property
Act, 1882.
23.The learned Senior Counsel further contended that the plaintiff
being dominus litis is free to decide the parties against whom the suit has to
be proceeded and when the agreements in Ex-A4 and Ex-A5 has been
executed only with the 11th defendant, even though the suit was originally
filed against the defendants 1 to 10, later the 11th defendant has been rightly
impleaded in the suit, but however, the lower appellate Court erroneously
allowed the appeal by reversing the decree on the ground that the suit filed
without impleading Lakshmiammal Educational Trust and Sri Visweswara
Trust, who are only delegates/sub tenants is bad and therefore, the judgment
and decree of the lower appellate Court is perverse and sought for allowing
the appeal.
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24.The learned Senior Counsel also relied on the judgments of the
Hon'ble Supreme Court in the case of Chevalier I.I.Iyyappan and another
-vs- Dharmodayam, reported in AIR 1966 SC 1017, for the proposition that
there cannot be an irrevocable licence and the licence get abandoned when it
has become impracticable due to the action of the party; Balvant
N.Viswamitra and others -vs- Yadav Sadashiv Mule and others, reported in
(2004) 8 SCC 706, for the proposition that sub tenants need not be made as
party to the suit; and the judgment passed by this Court in S.A.(MD)No.698
of 2021, dated 12.11.2021, in the case of Thiruvengadam -vs-
Panchanathan, for the proposition that the onus is lies always on the tenant
to prove that he has paid the rent without default.
25.Per contra, Mrs. Chitra Sampath, learned Senior Counsel
appearing for the contesting respondents argued that the suit, as such framed
without giving clear description of the property, is not sustainable. The
learned Senior Counsel contended that when 5141 sq.ft., of land was given
to the 11th defendant by agreement in Ex-A4 and further an extent of 1754
sq.ft., was given through Ex-A5, in all, for a total extent of 6895 sq.ft., the
present suit has been filed only claiming for possession in respect of 5645
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sq.ft. As 1250 sq.ft., of balance extent of land has not been included in the
suit property and it is not clear as to which portion of the property, the
plaintiff is seeking recovery and even if the suit is decreed, the same will
become in-executable.
26.The learned Senior Counsel further contended that when the
conditions contained in the first agreement are entirely different, which has
been executed only for the sole purpose of promoting the School for the
development of Viswakarma community, in fact, for free rent, only the
second agreement, which is for further development of the School, contains
conditions for construction of four shops and two Archakars quarters and
therefore, the plaintiff could not have clubbed both the agreements together
and sought for a common relief on the ground that the condition in the
agreement has been violated. In fact, the second agreement also was
executed on condition that the 11th defendant on their own funds will vacate
the encroachments and put up constructions and hand over two quarters for
Archakars at free of cost and pay 50% of the rents collected to the
Devasthanam. When absolutely there was no violation in the conditions
contained in the agreements, as per the very clause in the agreement, there
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cannot be any unilateral cancellation of the same and the suit filed is only
with mala fide motive and not sustainable.
27.The learned Senior Counsel further contended that when the
plaintiff Devasthanam has issued notice under Ex-A9, dated 21.03.1991,
only to defendants 1 to 10 and not to the 11th defendant, in whose favour the
licence was granted and further the suit was filed only as against the
members and only after a period of nine years, the 11th defendant has been
impleaded in the suit and therefore, the very initiation of the suit without
issuing any notice to the 11th defendant, is not maintainable. Further, when
the plaintiff has alleged default in payment of rent, no prayer has been made
for payment of arrears of rent in the suit.
28.The learned Senior Counsel further contended that the suit filed by
the plaintiff represented by PW-1, as Secretary cannot be sustained, as PW-1
in his evidence has admitted that other Trustees are available and the suit
filed without impleading the other Trustees, as parties, cannot be sustained.
Further, when admittedly, no resolution has been passed to file a suit, as
against the 11th defendant and further, when it is admitted that the whole
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School building is a single unit and the festival is also happening in which
contributions are made by the 11th defendant, absolutely there is no violation
of the conditions in the agreements and when there is no violation, the
plaintiff ought to have at least issued notice by providing details to the 11th
defendant, if there is any violation.
29.The learned Senior Counsel further contended that the properties
have not been transferred to any third parties and in fact, Sri Visweswara
Trust and Visweswara Vidyalaya School are all contained in the agreement
in Ex-A5 itself and Lakshmiammal Educational Trust and Sri Visweswara
Trust are only the delegates, to whom only the management of the School is
handed over. The very object of running of the School and development of
the Viswakarma community is consistently maintained and followed and
when admittedly, the School building is jointly lying in the lands belonging
to Sri Visweswara Trust and Lakshmiammal Educational Trust along with
the plaintiff Devasthanam, they are proper and necessary parties to the suit
and therefore, the lower appellate Court has rightly considered the evidences
in a proper prospective and allowed the appeal, which needs no interference
and sought for dismissal of the appeal.
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30.Heard the learned Senior Counsels on either and perused the
materials available on record.
31.Admittedly, the suit property belongs to Sree Muthuvinayagar Sree
Kamatchiammal Ekambareswara Devasthanam and also the Temple belongs
to the Viswakarma community people in Coimbatore. It is also the admitted
case that the 11th defendant is a Society registered under the Tamil Nadu
Societies Registration Act, 1975, formed for the development of the
Viswakarma community people in Coimbatore Town. Since both the
plaintiff Devasthanam and the 11th defendant Society belonged to
Viswakarma community people of Coimbatore town and both have been
formed for the avowed object of promoting the interest and development of
the Viswakarma community, they have entered into agreements in respect of
one of the properties.
32.Out of several properties belonging to the plaintiff Devasthanam,
the vacant land measuring an extent of 5141 sq.ft., in Sukrawarpet Street in
Coimbatore Town in T.S.Nos.7/221 to 227 of Block-11 and another extent of
1754 sq.,ft., along with old dilapidated constructions with huts and
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encroachments also belonged to the plaintiff Devasthanam. The plaintiff
Devasthanam wanted to make use of those vacant lands by constructing a
School, which would be beneficial for the interest and development of the
Viswakarma community.
33.As the 11th defendant has also been formed for the same object, the
plaintiff Devasthanam and the 11th defendant entered into a registered
agreement dated 10.07.1979 in Ex-A4, whereby, the vacant land measuring
an extent of 5141 sq.ft., in T.S.No.7/221 was handed over to the 11th
defendant and licence was granted by permitting them to construct a
building and run a School. In fact, the agreement was entered into and
licence was granted free of rent and the intention of the parties could be
ascertained by the very clauses contained in the agreement under Ex-A4.
The agreement contains six clauses along with further nine terms and
conditions. Clauses 4 to 6 are extracted hereunder for ease reference, which
would reveal the actual intention of the parties:
“(4)Njt];jhdk;> rq;fk; Mfpatw;wpy; eph;thfq;fspy;
Vw;gLk; vk;khWjYk; ,e;j xg;ge;jj;ij vt;tpjj;jpYk;
ghjpf;fhJ vd;gijj; jtpu ,e;j xg;ge;jj;jpd;
\uj;Jf;fs;gbNah my;yJ rl;lg;gbNah> ,e;j xg;ge;jk;
,Ujug;Gk; Nrh;e;J uj;J nra;ag;gl;lhnyhopa Njt];jhdNkh>
rq;fNkh ,jd; eph;thfpfNsh ,e;j xg;ge;jjpypUe;J gpwo
KbahJ.
(5)Njt];jhdKk;> rq;fKk; tp\;tgpuhkd k`h
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[dq;fshy; Njhw;Wtpf;fg;gl;L> mth;fspd; r%f rkahr;rhu>
nghUshjhu> fy;tp> fiy> tsh;r;rpf;fhf Nkw;gb k`h
[dq;fspd; cjtpiaf; nfhz;L elj;jg;gl;L tUk; epWtdq;fs;
MjyhYk; Nkw;gb Nehf;fq;fs; epiwNtwTk;> Njt];jhdj;jpd;
rhh;gpYk; rq;fj;jpd; rhh;gpYk; ,e;j xg;ge;jk; nra;J
nfhs;sg;gLfpwJ.
(6)Nkw;gb Nehf;fq;fs; epiwNtw> ,e;j xg;ge;jjpw;F
ghjfk; mw;w KiwapYk; ,e;j xg;ge;jj;ij xl;b Nghlg;gLk;
jpl;lq;fis tpiuTgLj;Jk; tifapYk; ,Ujug;ghUk;
mt;tg;NghJ gu];guk; Ngrp ,Ujug;ghhpd; rk;kjj;Jld; ,e;j
xg;ge;jq;fspd; \uj;Jf;fis khw;wp nfhs;syhk; vd
xg;Gf;nfhz;Ls;Nshk;.”
34.As per clause-4, any change either in the Devasthanam or Sangam
will not affect the agreement and this agreement cannot be unilaterally
cancelled even either by the conditions contained in the agreement or
legally. Clause-5 also specifically states that both the Devasthanam and
Sangam have been formed by the people of Viswakarma community for the
purpose of social, economical, educational and cultural development and
both are run by the contributions made by the people of Viswakarma
community and only for the purpose of fulfilling the objects, the agreement
is entered into. Further, as per clause-6, for the purpose of fulfilling the
objects, the plan made by this agreement can be further extended and
changes could be also made by joint discussion between the parties.
Therefore, both the parties, at the time of entering into the agreement in Ex-
A4, were very conscious that at no point of time or due to any external
factors, any disturbance could be created for the laudable object of running
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the School, which is solely for the development of the above aspects of the
Viswakarma community people.
35.Further, the conditions contained in the agreement in Ex-A4 are
extracted hereunder:
“(2)r%f> fy;tp> fiy> nghUshjhu> rkahr;rhu>
ey;tho;it mbg;gilahf nfhz;L> fhypaplj;jpy; rq;fk; jd;
nrytpYk;> nghWg;gpYk; fl;blq;fs; fl;bf;nfhs;sTk;>
mjw;fhd ,ju Vw;ghLfisr; nra;J nfhs;sTk; ,e;j
xg;ge;jj;jpd; %ykhf mDkjp toq;fg;gLfpwJ. ,e;j
xg;ge;jj;ij Kd;dpl;L Vw;fdNt rq;fk;> Njt];jhd
eph;thfj;jpd; mDkjp ngw;W tiuglk; tiue;J> efuhl;rpapd;
mDkjp ngw;W fl;blq;fs; fl;b tUtijAk; ,d;d gpw rhh;G
eltbf;iffSf;Fk; ,e;j xg;ge;jj;jpd; %ykhf Njt];jhdk;
xg;Gjyspf;fpwJ.
(3)rq;fj;jhy; fl;lg;gLk; fl;blj;jpd;> r%f Nkk;ghl;il
fUj;jpy; nfhz;L eh;rhp gs;spapypUe;J> cah;epiyg; gs;sp
tiu elj;jTk; kw;Wk; kUj;Jt kiz> tpisahl;L muq;fk;
,d;d gpw nghJg; gzpf;fhd epWtdq;fisAk; Vw;ghLfisAk;
nra;a Njt];jhdk; rq;fj;jpw;F mDkjpaspf;fpwJ.
(4)tp\;tgpuhkd k`h [dq;fsplkpUe;J ed;
nfhilfisj; jtpu> Ntnwe;j tifapYk; fl;lblq;fisNah
my;yJ fhypaplj;ijNah thliff;Nfh my;yJ cs;
thliff;Nfh tpl;L rq;fk; vj; njhifiaAk; tR+y;
nra;af;$lhJ.
(5),e;j mDkjp xg;gge;jjpy; Fwpg;gplg;gl;Ls;s tp\;t
gpuhkd r%fj;jpd; Nkk;ghl;bw;fhd Nehf;fq;fis epiwNtw;w
,ayhJ> rq;fk; ,e;j xg;ge;jj;ij ,uj;J nra;J
nrhj;Jf;fis Njt];jhdj;jpw;F kW RthjPdk; nra;Ak;NghJ
fl;blq;fSf;fhNth NtW rhh;G Vw;ghLfSf;fhNth
Njt];jhdj;jplkpUe;J vj; njhifiaAk; NfhUk;ghj;jpak;
rq;fj;jpw;F fpilahJ.
(6),e;j xg;ge;jj;jpy; Fwpg;gpl;Ls;s \uj;JfSf;F
cl;gl;L> rq;fk; gzpGhpe;J tUk;NghNjh my;yJ r%f
ed;ikf;fhd tp];jhpg;G gzpfspy; <Lgl;bUf;Fk;NghNjh Kd;
mwptpg;g nfhLj;Njh my;yJ nfhLf;fhkNyh vt;tifapYk;
fl;blq;fis fhyp nra;J kW ];thjPdk; NfhUk; ghj;iaNah
,e;j xg;gej;jj;ij xU gl;rkhd uj;J nra;Ak; mjpfhuNkh
Njt];jhdj;jpw;F fpilahJ.
(7)NkNy Fwpg;gpl;Ls;s MwhtJ \uj;jpw;F khwhf
Njtj];jhdk; kW ];thjPdk; nra;J nfhLf;Fk;gb
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r%fj;jpdiu tw;GWj;jpdhy; fl;blq;fSf;fhf rq;fk; nryT
nra;j njhiffisAk; rq;fj;jpw;F Vw;gLk; f\;l
e\;lj;jpw;Fk; <L nra;Ak; Kiwapy; KO njhifiaAk;
Njt];jhdk; rq;fj;jpw;F nfhLj;Jtpl Ntz;baJ.
(8),e;j mDkjpianahl;b> jw;nghOJ fl;lg;gl;L tUk;
fl;blq;fisj; jtpu> Nkw;nfhz;L fl;blq;fs; fl;l Ntz;baJ
mtrpak; rq;fj;jpw;F vw;gl;lhy;> Njt];jhd eph;thfpfis
fye;J nfhz;L mth;fspd; mDkjp ngw;W nra;a Ntz;baJ.
jtpu NkNy Fwpg;gpl;Ls;s Foe;ijfspd; eh;rhp gs;sp Kjy;
cah;epiyg; gs;sp tiuapYk; kw;Wk; kUj;Jtkid
tpisahl;L muq;fk; ,d;d gpw nghJg; gzpf;fhd
epWtdq;fisAk; elj;Jtnjd;W jPh;khdpf;fg;gl;L i\ fl;blk;
fl;lg;gLfpwJ. i\ jpl;lq;fshdJ nja;tPfkhfNth>
uh[pakhfNth epd;Wtpl;lhy; i\ fl;blj;ij NtW
ve;jtpjkhfTk; rq;fj;jhh; cgNahfg;gLj;jhky;
Njt];jhdj;jhhplk; xg;gilj;J tpl Ntz;baJ. ,jw;F
khwhf rq;fj;jhy; nray;gl;lhy; mjdhy; Njt];jhdj;jpw;F
Vw;gLk; rfy f\;l e\;lj;jpw;Fk; rq;fj;jhh; ghj;jpag;gl
Ntz;bJ.
(9)rq;fj;jpd; RthjPdj;jpy; tplg;gLk; fhypaplk; mjpy;
fl;lg;gLk; fl;blq;fs; rk;ge;jkhd Kdprpgy; nrhj;Jthp> kpd;
fl;lzk;> Foha; fl;lzk; ,d;d gpw rh;f;fhh; my;yJ
efuhl;rpf;F nrYj;jg;gl Ntz;ba rfy thpfisAk;
fl;lzq;fisAk; rq;fNk nrYj;jpl Ntz;baJ.”
36.The perusal of the above conditions clearly indicate that the
Sangam at their own cost can put up a construction and the land can be used
for running a School from Nursery to High School and further, for running a
hospital and playground for the betterment and development of the
Viswakarma community. Only if the Sangam is not able to continue with
the purpose, for which it is granted and the Sangam on its own, hand over
the property back to the Devasthanam, then the Sangam cannot claim any
compensation for the building. But if the Sangam is involved in the
extension of the School and running the School by complying with the
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terms, then the Devasthanam shall not have any right to unilaterally cancel
the agreement and claim possession either by issuing prior notice or without
the same. If the Devasthanam claims possession in contravention of
condition-6, then Devasthanam shall pay the cost of the building and
damages to the Sangam. It is also specifically found in condition-8 that
apart from the building constructed, if further buildings are to be constructed
for development, the same also can be undertaken by the Sangam after
consulting with the Devasthanam and the Sangam on their own shall pay all
the taxes and charges for the suit property.
37.As such, from the very agreement under Ex-A4, which is executed
between the Society and the Devasthanam of the same community, they
were only interested to carry on development for the betterment of that
community. As both of them belong to same community, care had been
taken by the parties to the document that further developments have to be
carried on and also, it has been ensured that no disturbance is caused to the
School, that is run in the premises, as it is for the sole object of the
development of the community.
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38.Later, since other portion of the property measuring 1754 sq.ft.,
along with dilapidated buildings with huts and encroachments was lying
vacant and also it has been the practice that Idol was to be brought and
placed here at the time of festival, but it was discontinued due to the huts
and encroachments, it could be seen that since the 11th defendant had
undertaken the construction works, the plaintiff Devasthanam thought it fit
to hand over this portion of the lands also to the 11th defendant.
39.As such, a second registered agreement, dated 13.02.1985, in Ex-
A5 has been executed, whereby, the possession of 1745 sq.ft., of land was
handed over to the Sangam. In the agreement in Ex-A5, the earlier
agreement in Ex-A4 has also been referred to and the licence is granted for
the purpose of constructing the extension of the building for Visweswara
Vidyalaya School. This agreement also contains similar clauses, as contained
in Ex-A4 and as per this agreement, the Sangam has to demolish dilapidated
buildings and vacate the huts and encroachments at their own cost and
undertake the construction of the building also at their own cost. While
doing so, two quarters measuring 20x10 feet has to be constructed behind
the two shops which is also to be constructed, adjoining the entrance of two
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sides for the purpose of Archakar quarters. After completion of the
construction, out of the rents to be fixed by Devasthanam and Sangam,
excepting Archakars quarters, in respect of the four shops, after retaining
50% of the rent for the development of Visweswara Vidyalaya School,
balance 50% has to be paid to the Devasthanam.
40.As such, only in Ex-A5, where also the Sangam was allowed to
demolish the dilapidated building and evict the encroachments on their own
cost and was allowed to make construction by providing two quarters for
Archakars and in respect of the four shops, 50% of the rent fixed can be
retained for the development of the Visweswara Vidyalaya School and the
balance 50% of the rent alone shall be paid to the Devasthanam. Even from
the averments made in the plaint, it could be seen that 50% of the rents were
admittedly paid to the Devasthanam for some period and later, there has
been some default.
41.The plaintiff has come up with the suit mainly on the ground that
after construction of four shops, the Sangam had unilaterally inducted the
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tenants and also received advance of Rs.50,000/- from them, which has not
been accounted for and the 50% of the rents collected has not been paid to
the Devasthanam. The plaintiff Devasthanam also claimed that violating the
clauses in the agreements, the Sangam had obtained tax receipts in the joint
names, which should have been obtained in the name of Devasthanam alone.
The plaintiff also contended that since the School was handed over to Sri
Visweswara Trust and subsequently an agreement has been entered into in
Ex-B10 with Lakshmiammal Educational Trust, there is violation of the
agreements in Ex-A4 and Ex-A5.
42.When it is the admitted case of the plaintiff that after completion of
building and induction of tenants, 50% of the rent was paid for some time
and subsequently, there has been default, the plaintiff has not furnished the
details from which date, the rent was paid to the Devasthanam and exactly
from which date, the default has been committed in paying 50% of the rent
and while so, the plaintiff has also not prayed for payment of arrears of rent.
When the plaintiff claims that initially 50% of the rents were paid to them, it
is not made clear then as to how they claim that tenants have been inducted
unilaterally by the Sangam and why the Devasthanam has not questioned the
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same and remained silent and on the contrary, were receiving the rents.
Further, there is no condition in Ex-A5 in respect of collection of advance to
be paid to the Devasthanam.
43.As referred earlier, in respect of 5141 sq.ft., of the property, which
is the vacant land for which, Ex-A4 agreement was executed for free of rent,
admittedly, the School has been constructed and the School is also being run.
It could be seen from the records, evidence and the written statement that
nearly 1200 students are studying in the School and out of which, 50% are
girl students and the School is taking care of the interest of the Viswakarma
community, as more than 65% of the students studying in the School belong
to Viswakarma community, as such the suit filed for recovery of possession
on the ground of non payment of rent and obtaining tax receipts in joint
names, alleging violation of the agreement under Ex-A4, cannot be
sustained.
44.Further, when Ex-A5 has been executed in respect of 1754 sq.ft.,
of land and admittedly, as per clauses contained in the agreement, the
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dilapidated buildings has been demolished and also the construction as
covered under the agreement has been made by constructing four shops and
two Archakar quarters and also the same has been handed over free of rent to
the Archakars. Further, even from the evidence of PW-1, the School is run
and the festivals are now conducted, whereby, the Idols are brought and kept
at the Jambu Savari Mandapam, as per the original practice and also the
defendants are contributing to the festivals and also to the Temple, it is not
clear, as to how the defendants have acted prejudicial to the interest of the
Devasthanam. Even from the evidence, it could be seen that earlier the rents
have been paid through cheques and subsequently, rents have also been paid
for which receipts have been filed in Ex-B1 series. The suit has been filed
by the plaintiff knowing fully well that the School building, which is
constructed in three lands as a single unit, will have to be demolished,
whereby, the running of the School will be jeopardized, which will go
against the very execution of the Ex-A4 and Ex-A5 and the real intention of
the original Trustees of the Devasthanam belonging to Viswakarma
community. Still the present suit is proceeded on the flimsy ground that this
50% of rent for the four shops ie. Rs.1000/- out of the total rent of Rs.2000/-
(Rs.500 for each shop) have not been paid, prior to the filing of the suit for
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some period.
45.The further case of the plaintiff that when lands were handed over
to the 11th defendant, subsequent handing over of the School to Sri
Visweswara Trust and the Lakshmiammal Educational Trust is detrimental
to the interest of the Devasthanam cannot be sustained for the simple reason
that even when the agreement in Ex-A5 was executed, it has been clearly
entered that the constructions can be undertaken for running of the
Visweswara Vidayalaya School by Sri Visweswara Trust and in fact, the very
recitals, in respect of four shops, which read that after collecting the rents,
50% of the same should be retained for the development of Visweswara
Vidyalaya School and only thereafter, 50% shall be paid to the
Devasthanam, would show that under Ex-A5, the Trustees of Devasthanam
was conscious that already Visweswara Vidayalaya School is run by Sri
Visweswara Trust, as they were very much interested in the development of
the School. Further, from the pleadings and the evidence filed, it can be
seen that Sri Visweswara Trust owned an extent of 1337 sq.ft., lands and
Lakshmiammal Educational Trust owned an extent of 4283 sq.ft., of lands
and the School had been constructed as a single unit along with the lands of
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the Devasthanam in the 6895 sq.ft., of land covered in Ex-A4 and Ex-A5.
46.Further, the School building has been constructed by incurring
huge cost and totally an extent 14613.75 sq.,ft., have been constructed,
which has not been disputed, consisting of ground plus two floors.
Admittedly, the two staircases of the School is situated one in the land
belonging to Sri Visweswara Trust and one in the land belonging to
Lakshmiammal Educational Trust and the entrance to the School is through
the land of the Devasthanam covered under Ex-A5. When the plaintiff is
aware that a building as a single unit has been constructed in the lands of
Devasthanam, Lakshmi Ammal Trust and Visweswara Trust and the School
building has to be demolished to carve out the portion of building
constructed in the land belonging to the Devasthanam, then the
Lakshmiammal Educational Trust and Visveshwara Trust, which is formed
by the members of the same Vishwakarma community people, are also
proper and necessary parties to the suit, as they are the joint owners of the
common School building.
47.When the plaintiff has come forward with a suit for declaration,
permanent injunction and recovery of possession, initially, the trial Court
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framed five issues and also later, framed two additional issues. But however,
when the suit was taken up for hearing, issue nos.3 and 4, which were
originally framed and the two additional issues were deleted and the issues
were re-framed only in respect of the relief of permanent injunction and
recovery of possession, as it was conceded by the plaintiff that the relief in
respect of declaration cannot be sought.
48.When the suit has been confined to the relief of injunction and
recovery of possession, it could be seen that the suit property pertains to an
extent of 5645 sq. ft. When the property covered under Ex-A4 is for 5141
sq.,ft of land and the land covered under Ex-A5 is for 1754 sq.ft., which
comes totally to an extent of 6895 sq.ft., the present suit is filed only in
respect of 5645 sq.ft., leaving the balance extent of 1250 sq.ft., and as such it
is not clear, as to in respect of which portion of the property, the plaintiff is
seeking for relief. As rightly contended by the learned Senior Counsel for
the respondents, even if a decree is granted, it would be in executable, as the
exact area of the property, that is sought for in the suit, cannot be identified.
49.Further, the plaintiff had issued the notice, dated 21.03.1991 under
Ex-A9 to some of the members. Admittedly, the notice under Ex-A9 has not
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been issued to the 11th defendant and in fact, no pre-suit notice has been
issued to the 11th defendant cancelling the agreement and calling for
surrender of possession of the property. In fact the suit itself has not been
instituted as against the 11th defendant initially but only after a period of nine
years, the 11th defendant was impleaded in the suit. When it is the specific
case of the plaintiff that the 11th defendant has committed default in
payments of the rent and also collected advance from the tenants and
thereby, violated the agreement, the present suit filed by the plaintiff without
even issuing notice to the 11th defendant cancelling the agreement, cannot be
sustained.
50.When admittedly, both the agreements in Ex-A4 and Ex-A5
contain different and distinct terms, particularly, when the agreement in
Ex-A4 has been executed in respect of vacant land for free of rent and the
agreement in Ex-A5 has been executed with several conditions and if the
plaintiff claims that there has been violation of the clauses, it could only
pertain to the lands covered under Ex-A5 and the suit filed by the plaintiff
by clubbing both the properties covered under Ex-A4 and Ex-A5 together
would be fatal to the claim of the plaintiff.
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51.The plaintiff has even averred in the plaint that the building has
been constructed for the Visweswara Vidyalaya School along with 4 shops,
Archarka quarters and the defendants are the Managing Trustees of the
Certified Goldsmith Association, which is later impleaded as 11th defendant,
as a party to the agreement, and particularly, even in Ex-A5, the Visweswara
Vidyalaya School has been recognized, which is run by Sri Visweswara
Trust and admittedly, the School has been constructed as a single unit in the
properties of the Devasthanam and the Trusts, necessarily Visweswara Trust
and the Sri Lakshmiammal Educational Trust are necessary parties to the
suit. When it is not the case of the plaintiff that the property has been
transferred to any third parties, whereby, the interest of the Devasthanam has
been compromised and the properties has not been put to use for the
intended purpose for which it was granted and admittedly, the Trustees in the
11th defendant, Sri Visweswara Trust and the Trustees in the Lakshmiammal
Educational Trust are all belonging to Viswakarma community and
admittedly, the School is also run and now, having classes up to 12th standard
and having a strength of more than 1200 students by achieving 100% results,
it cannot be said that the terms in the agreement has been violated.
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52.In fact, if the relief claimed is granted, it will be go detrimental to
the interest of the members of the Viswakarma community and the
Devasthanam, which will defeat the very laudable intention and object of the
original Trustees, who had entered into an agreement in Ex-A4 by handing
over the property free of rent with the specific clause to ensure that the
agreement is not cancelled and no prejudicial step is taken, which will
disturb the running of the School.
53. From the evidence of PW-1, it could be seen that there shall be at
least 5 trustees in administration of the plaintiff Devasthanam for a period of
3 years and the present trustees were elected on 14.09.1969, which was
extended for another period of 3 years and admittedly no meeting was ever
convened after the year 1972 and further PW-1 admits that he is not aware as
to the numbers of members available as of now, for the plaintiff
Devasthanam and only if a meeting is convened the exact number of
members available will be made known. Further he had deposed that, only
since permanent constructions were made in the year 1980 and as the
condition was violated, it lead to the differences with the 11th defendant but
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in the later part of his evidence, he admits that the constructions have been
made as per the agreement. PW-1 also admits that the tax receipts are in the
name of Devasthanam and they had received the rents through cheque and in
the resolution in Ex.A3, no mention of advance or rental issues have been
mentioned and also the resolution does not deal with in respect of filing of
any suit. Further, when Ponnappa Asari, Trustee had died and PW-1 has
claimed that as a power agent of Ponnappa Asari through Ex.A2, he had
been given power to deal with the present issues and also as an
administrative committee, he had filed the suit, when few of the trustees had
died and the term had not been extended and further, from the evidence, it
could be seen that the HR & CE Department is in control of the affairs of the
Devasthanam, as the accounts are audited and signed by the Department, it
is not made clear as to whether the suit has been initiated with proper
authorization from the competent persons, as the decision to vacate the
School, goes against the interest and real intent conveyed in Ex.A4 and
Ex.A5. The relevant portions of the evidence of PW1 are extracted
hereunder:
“....,g;nghOJ cs;s fl;blq;fSf;F Nfhtpypd;
ngahpy; jhd; thptpjpg;G tpjpf;fg;gl;Ls;sJ. fjT
vz;.494f;fhd khefuhl;rpapy; ,Ue;J ngw;W jhf;fy;
nra;ag;gl;Ls;s nrhj;J thp gjpNtl;bd; vLFwpg;G vf;.v.6. ....
....Njt];jhd ,lj;jpy; fl;lg;gl;Ls;s gs;spf;F
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tp];Nt];tu tpj;ahyak; vd;W ngah;. mjDlia
eph;thfj;ij yl;Rkpak;khs; mwf;fl;lisjhd; nra;J
tUfpwJ. ....
....nkhj;jk; Fiwe;jgl;rk; 5 mwq;fhtyh;fs;
Njh;e;njLf;fg;gLfpwhh;fs;. mwq;fhtyh;fs; ghh;j;J
mth;fSf;F cjtp nra;tjw;fhf fkpl;bfSk;
mikj;Jf;nfhs;fpwhh;fs;. ....
.... 14.9.1969k;Njjpapy; vq;fisj; Njh;e;njLj;jhh;fs;.
1969k; tUlj;jpypUe;J 3 tUlj;jpw;F gpw;ghL vq;fSila
mwq;fhtyh; gzp ePbf;fg;gl;lJ vd;gijf; fhz;gpg;gjw;F
vq;fsplk; Mtzq;fs; cs;sd. 1972k; tUlj;jpw;F gpw;ghL
ehq;fs; kfhrig $l;lk; vjTk; Nghltpy;iy. ....
.... ehd; vf;.v.2 gb nghd;dg;g Mrhhpapd; gth;
Vn[d;l; vd;w KiwapYk; eph;thff; fkpl;bapd; rhh;gpYk;
ehd; ,e;j tof;ifj; jhf;fy; nra;jpUf;fpNwhk;. ....
.... vf;.v.2 gth; gj;jpuk; vOj;jpf;nfhLf;fg;gl;l
fhyj;jpy; ,e;j tof;F jhf;fy; nra;ag;gltpy;iy. ....
.... Mdhy; rhd;wpjo; ngw;w nghw;gzpahsh;fs;
rq;fj;jpdh; 1980k; tUlj;jpNyNa epue;jukhd fl;blk; fl;b
elj;jpte;jhh;fs;. mth;fs; jhw;fypfkhf fl;blk; fl;l
Ntz;Lk; vd;W tha;nkhopahf xg;ge;jk; nrhy;yg;gl;lJ.
mt;thW vf;.v.4 xg;ge;jj;jpy; vOjg;gltpy;iy. mjdhy;
xg;ge;jj;ij kPwp mth;fs; 1980k; tUlj;jpy; epue;jukhd
fl;blq;fs; fl;btpl;lhh;fs; vd;gjdhy; mth;fs; kPJ
vq;fSf;F xU Fiw ,Ue;jJ vd;W nrhd;dhy; Fiw
,Ue;jJ. mth;fs; nra;jJ xg;ge;jj;ij kPwf;$ba xU
nray;. ....
....gs;spf;$l nkapd; Nfl; Njt];jhd fl;blj;jpy;
,Uf;fpwJ. gs;spf;fl;blq;fSf;F Vwpg;Nghff;$ba
khbg;gbfs; Nky;GwKs;sJ yl;rpak;khs; bu];by; cs;sJ.
fpoGwKs;sJ tp];Nt];tuh bu];l; ,lj;jpy; cs;sd. ....
....,g;nghOJ vq;fSila kfhrigapy; vj;jidNgh;
,Uf;fpwhh;fs; vd;W vq;fSf;Fj; njhpahJ. kfhrigiaf;
$l;bdhy; jhd; njhpAk;. kfhrigapy; vj;jid Ngh;
,Uf;fpwhh;fs; vd;W gl;bay; vJTk; ehq;fs;
jahhpf;ftpy;iy. ....
....me;j ,lj;jpy; mjw;F gpwF Rthkp Ch;ty nryT>
nea;Ntj;jpa nryT> G+i[ nryT Mfpatw;iw 1 kw;Wk;
11k; gpujpthjpfSk; jUfpwhh;fs;. ....
....,e;j tof;F jhf;fy; nra;ag;gLtjw;F Kd;dhy;
Nkw;gb xg;ge;jj;ij kPwptpl;ljhf ehq;fs; rhd;wpjo; ngw;w
nghw;gzpahh;fs; rq;fj;jpw;F mwptpg;G nfhLj;jpUf;fpNwhk;.
me;j mwptpg;ig xg;Gtpf;f KbAk;. ....
....Mdhy; mth;fs; thlifapy; 50% njhif
nrYj;jtpy;iy. thlif Kd;gzk; jUtjpy;iy. mth;fs;
nfhLj;j njhifia Njt];jhdj;jpw;F e\;lk; Vw;glf;$lhJ
vd;gjw;fhf ngw;Wf;nfhz;L urPJ nfhLj;JtUfpwNwhk;.
thlifapy; 50% gFjpia nrYj;jNtz;Lk; vd;w ruj;J
2tJ xg;ge;jj;jpy;jhd; vOjg;gl;Ls;sJ. Kjy; xg;ge;jj;jpy;
https://www.mhc.tn.gov.in/judis
vOjg;gltpy;iy. ....
....vf;.v.3 jPhk
; hdj;jpy; jiythpd; mgpg;uhag;gb
thlifapd; Kd;gzj;jpw;F ghjpia nfhLf;fNtz;Lk; vd;W
tha;nkhopahf nghw;gzpahsh;fs; rq;f Nkd[pq; bu];blk;
Neubahf nrhy;yptpl;ljpdhy; mJ Njitapy;iy vd;W fUjp
vf;.v.3 jPhk ; hdj;jpy; mJgw;wpf; Fwpg;gpltpy;iy. vf;.v.3
jPhk ; hdj;ij vq;fs; jiyth; nrhd;dgb Nghl;Ltpl;Nlhk;.
me;j jPh;khdj;ij 11k; gpujpthjp rq;fj;jpd;Nghpy; tof;F
jhf;fy; nra;ag;glNtz;Lk; vd;W ehq;fs; jPh;khdk;
Nghltpy;iy. vq;fSila vf;.v.3 jPh;khdj;jpy; 1k;
gpujpthjpiaj; jtpu 2 Kjy; 10 gpujpthjpfspd; Nghpy; jhth
jhf;fy; nra;ag;glNtz;Lk; vd;W jPhk ; hdk; Nghlg;gltpy;iy.
....
....Nkw;gb 4 filfspYk; xt;nthU filf;Fk; vd;d
thlif tUfpwJ vd;W vdf;Fj; njhpahJ. xt;nthU
khjKk; nfhLf;fNtz;ba njhifia mth;fs; fhNrhiy
%ykhfj; jhd; nrYj;jp tUfpwhh;fs;. ....
....jhth nrhj;Jf;fSf;fhd nrhj;Jthp Kjypy;
Nfhtpypd; ngahpy; te;J nfhz;bUe;jJ. gpw;ghL yl;Rkp
mwf;fl;lisapd; NghpYk;> 1k; gpujpthjpapd; ngahpYk;
te;Jnfhz;bUe;jjpdhy; jhd; mJ xg;ge;j kPwyhf fUjp
eltbf;if Nkw;nfhs;sg;gl;lJ. vdf;F fhz;gpf;fg;gl;l
nrhj;Jthp Nfl;G ml;il Kj;Jtpehahfh;> fhkhl;rp mk;kd;
Vfhk;gNu];tuh; Njt];jhdj;jpd; ngahpy; jhd; cs;sJ.
jhth nrhj;Jf;fSf;F nrhj;Jthp jhf;fpaJ vg;gb
tUfpd;wJ vd;W ehd; Ngha; rhpghh;j;jjpy;iy. ....”
54.The School is admittedly run and also as per the old customary
practice, Idols are brought during festivals and are placed at Jambu Savari
Mandapam, since the encroachment has been cleared and construction has
been made, as per the agreements and also admittedly, the defendants are
also contributing for the festival. Further, when admittedly, there are several
Trustees, who are in the administration of the Devasthanam, those Trustees
has not been made as parties to the suit and also when no resolution has been
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passed by the authorized persons for filing of the suit as against the 11th
defendant and the suit originally had been filed as against some of the
members and the 11th defendant has been impleaded only after nine years,
even without issuing any pre suit notice to them, it can be safely concluded
that the proceedings initiated is due to some personal rivalry and not for the
over all interest of the Devasthanam.
55. Agreement has been entered into between the parties in Ex.A4 in
respect of the vacant land with certain conditions, which if closely looked
reveals that proper care has been taken by the parties, particularly the
Trustees of the plaintiff Devasthanam that the running of the School is not
disturbed and they were very much interested in the development of the
School which will be beneficial for the development of their community. In
the agreements entered into in Ex.A4 and Ex.A5, license has been granted
for construction of the School building and running of the school. As
referred earlier, it cannot be said that the conditions have been violated when
the main object for which the land was given has been put to proper use and
there is no complaint or allegation in the suit in respect of the running of the
School, except some allegations against the 1st defendant who had also died
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during the pendency of the appeal. As such, the judgment in Chevalier I.I.
Iyappan’s case relied on by the appellant is not relevant for the facts of the
present case, when the purpose for which it was granted had not been
abandoned. Further, the other judgment relied on in Balvant N Viswamitra’s
case for the proposition that the sub tenants are not necessary parties to the
suit is not relevant to the facts of the present case as the 1st defendant is the
Trustee in the 11th defendant Sangam, Sri Visweswara Trust and the
Lakshmiammal Educational Trust, which are all formed admittedly by the
members of the Viswakarma community, to meet the statutory requirements
for the purpose of obtaining the permission and running of the School up to
12th standard and therefore, they cannot be considered as sub tenants.
Further, the School is run in a common joint building, which is a single unit
and the Visweswara Trust was running the School even when the agreement
in Ex.A5 was entered into as reflected from the agreement.
56.When the terms contained in the agreement in Ex.A4 and Ex.A5
conveys the real intention of the parties, whereby, they wanted the School to
be run without any disturbance or hindrance and sufficient safeguards were
made in the very agreement itself and even in respect of the payment of the
50% rent from the 4 shops as mentioned in Ex.A5, the plaintiff
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Devasthanam made it clear that 50% of the rent first has to be retained for
the development of the School and only the balance 50% of rent (Rs.1000/-)
has to be paid to the Devasthanam and even from the evidence of PW-1, it is
admitted that earlier rents were paid through cheque and later paid and
obtained receipts in Ex.B1 series, I am not inclined to allow the School to be
demolished and vacated, merely on the allegations made against the
deceased 1st defendant and thereby, defeat the laudable object of the original
Trustees of the plaintiff Devasthanam, who wanted the School to flourish.
57. When it was put to the learned Senior Counsels, as to whether they
could sort out the issues by mediation without disturbing the running of the
School, as the very agreement in Ex.A4 itself envisages the same, it is
informed that already proceedings are pending for framing a Scheme before
the Joint Commissioner, HR & CE Department in respect of the
administration of the plaintiff Devasthanam and there is no consensus as of
now between the parties. Therefore, as and when the Trustees are appointed,
there is every possibility for the issues to get sorted out without disturbing
the running of the School, as they all belong to the Viswakarma community
and all their objects are only in respect of the development of the members
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of the Viswakarma community.
58.The lower appellate Court had arrived at a finding based on the
materials available on record and there is no illegality or perversity in the
judgment of the lower appellate Court. The substantial questions of law are
answered against the appellant and in favour of the respondents.
59. In the result, the Second Appeal stands dismissed. However, there
shall be no order as to costs.
Internet :Yes/No 29.05.2024
Index :Yes/No
NCC :Yes/No
cmr
To
1.The Principal District Judge,
Coimbatore,
2.The III Additional Subordinate Judge at Coimbatore.
3.The Record Keeper,
Vernacular Section,
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Madras High Court, Chennai.
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G.ARUL MURUGAN, J.
cmr
Judgment made in
29.05.2024
https://www.mhc.tn.gov.in/judis
