Madras High Court
Sri Arulmigu Thirumuruganathasamy ... vs Smt. Banumathi on 5 November, 2024
2024:MHC:3750
S.A.No.98 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 20 / 09 / 2024
JUDGMENT PRONOUNCED ON : 05 / 11 / 2024
CORAM
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.98 OF 2020
AND
CMP NOS.2077 AND 2078 OF 2020
Sri Arulmigu Thirumuruganathasamy Kovil
Represented by its Executive Officer
Thirumuruganpoondi,
Rakkiyapalayam Village,
Avinashi Taluk. ... Appellant / Appellant /
Defendant
Vs.
Smt. Banumathi ... Respondent / Respondent /
Plaintiff
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, 1908 praying to set aside the Judgment and Decree dated
August 20, 2019, made by the Subordinate Court, Avinashi in A.S.No.47
of 2017, confirming the Judgment and Decree dated July 6, 2015, made by
the District Munsif Court, Avinashi in O.S.No.303 of 2007.
For Appellant : Mr.K.Ashok Kumar
For Respondent : Mr.D.Krishna Pradeep
for M/s.N.Damodaran
JUDGMENT
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This Second Appeal is directed by the unsuccessful
defendant–Temple. Challenge is to the Judgment and Decree dated August
20, 2019, made by the ‘Subordinate Court, Avinashi’ [‘First Appellate
Court’ for short] in A.S.No.47 of 2017, wherein and whereby the Judgment
and Decree dated July 6, 2015, made by the ‘District Munsif Court,
Avinashi’ [‘Trial Court’ for short] in O.S.No.303 of 2007 was confirmed.
2. The appellant herein is the defendant while the respondent
herein is the plaintiff in the Original Suit. Hereinafter, the parties will be
referred to as per their array in the Original Suit.
Plaintiff’s Case in Brief:
3. The Suit Property is a vacant site which forms a portion of
Survey Nos.493/1 and 494/1 purchased by the plaintiff vide registered Sale
Deed dated July 3, 1995 from P. Vadivel who had purchased it vide Sale
Deed dated November 10, 1978. Ever since the date of purchase, the
plaintiff has been in possession and enjoyment of Suit Property. Revenue
Records, Land Tax Receipt, Patta, Possession Certificate are all in favour
of the plaintiff. Thus, it is clear that the plaintiff is the absolute owner of
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the Suit Property. Except the plaintiff nobody else has got any title, rights,
or interest over the Suit Property.
3.1. The defendant - Temple is a third party no way connected
with Suit Property, trying to trespass into the Suit Property for constructing
building for its devotees. The defendant is trying to unlawfully interfere
with the plaintiff’s peaceful possession and enjoyment of the Suit Property.
On September 18, 2007, the defendant attempted to encroach into the Suit
Property for construction, but the plaintiff prevented it. The plaintiff
apprehends that the defendant may encroach the Suit Property at any time
in the near future. Hence the Suit for declaration and permanent injunction
against the defendant.
Defendant’s Case in Brief:
4. The defendant filed Written Statements, wherein it is
averred that neither the plaintiff nor her vendor ever had any title, interest
or right over the Suit Property. They were never in possession and
enjoyment of the Suit Property. Sale Deed dated July 3, 1995 is false and
the revenue records and certificate obtained based on that false Sale Deed
is invalid.
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4.1. The Suit Property absolutely belongs to this defendant -
Temple as per the Inam Settlement Deed executed by Venkatachalam
Chettiar, son of Muruganatha Chettiar of Karukkampalayam, on November
9, 1935. The settlement was accepted and acted upon. The revenue records
were also mutated to the name of this defendant. The Suit Property is in
actual physical possession and control of this defendant alone. Without any
right, by collusively creating false documents, the plaintiff is making
illegal claim over the Suit Property. As the absolute owner in possession of
the Suit Property, the defendant has no need to trespass into its own
property. The alleged incident of trespass by the defendant on September
18, 2007 is false. The Suit is bad for non-joinder of necessary party viz.,
‘Tamil Nadu Hindu Religious and Charitable Endowments Department’
[‘HR & CE Department' for brevity]. Court Fee paid is incorrect. The Suit
is barred by limitation. Hence, the Suit is liable to be dismissed.
Trial Court:
5. The Trial Court framed the following issues:
“(i) Whether the plaintiff is entitled to the relief of
permanent injunction as prayed for?
(ii) To what other reliefs?
(iii) Whether the plaintiff is entitled for the relief
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of declaration?
(iv) Whether the Suit is bad for non-joinder of
necessary parties?”
5.2. At Trial, on the side of the plaintiff, the plaintiff’s
husband was examined as P.W.1 and Ex-A.1 to Ex-A.8 were marked; and
one Kadirvel was examined as P.W.2. On the side of the defendant, the
Executive Officer of the defendant - Temple was examined as D.W.1 and
Ex-B.1 to Ex-B.3 were marked; and one Meenakshi Sundaram was
examined as D.W.2.
5.3. Upon hearing both sides and considering the oral and
documentary evidence, the Trial Court concluded that the Suit has been
filed against the defendant – Temple represented by its Executive Officer
who is working under the HR & CE Department and hence, the Suit is not
bad for non-joinder of necessary party. Further held that, in view of the
admissions made by the Executive Officer, who was examined as D.W.1,
as well as on the strength on Ex-A.1 to Ex-A.8, the plaintiff is entitled to
the relief of declaration and permanent injunction. Accordingly, decreed
the Suit with cost.
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First Appellate Court:
6. Aggrieved by the dismissal Decree, the defendant - Temple
approached the First Appellate Court by way of an appeal under Section 96
of the ‘Code of Civil Procedure, 1908’ [‘CPC’ for short]. The First
Appellate Court upon hearing both sides and analysing the oral and
documentary evidence, concurred with the findings of the Trial Court, and
dismissed the appeal.
Substantial Questions of Law:
7. Aggrieved defendant – Temple preferred this Second
Appeal and the same was admitted on February 3, 2020 on the following
Substantial Questions of Law:
“a) Whether the suit is liable to be
dismissed as barred by law of limitation since the
prayer for seeking declaration of title was sought
for at the later stage, after a period of three years
from the date of such alleged disturbance of the
possession and denial of alleged title of the suit
property according to the plaint averment?
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b) Whether the Trial Court can entertain a
suit for declaration of title of the property based
upon the subsequent documents without
challenging the earlier document in the name of
another party pertaining to the very same
property?
c) Is it correct for the Trial Court to
entertain the application for seeking amendment
of the plaint after commencement of the Trial of
the main suit in the absence of fulfillment of such
conditions imposed on the proviso to Order VI
Rule 17 of CPC?”
8. On September 9, 2024, this Court framed the following
additional Substantial Question of Law:
“d) Whether the findings of the Trial Court
and the First Appellate Court that the suit is not
bad for non-joinder of necessary parties are
sustainable?”
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Discussion and Decision
Substantial Question of Law “a”
9. Mr.K.Ashok Kumar, learned Counsel for the appellant /
defendant would argue that the defendant – Temple acquired title over the
Suit Property under Ex-B.1 - Registered Sale Deed in the year 1935. The
Suit was originally filed on September 21, 2007 seeking the relief of
permanent injunction alone, and later amended on September 7, 2011 to
include the prayer for relief of declaration also. Further would argue that,
as per the Plaint averments, the alleged cause of action arose on July 3,
1995 when the plaintiff purchased the Suit Property. Hence, he would
contend that the relief of declaration is barred by the limitation.
10. In response, Mr.Krishna Pradeep, arguing Counsel, for
Mr.N.Damodharan, learned Counsel on record for the respondent / plaintiff
would argue that the plaintiff derives title to the Suit Property vide Ex-A.1
– registered Sale Deed dated July 3, 1995. The Suit was filed on
September 21, 2007 in response to the defendant’s attempt to trespass.
Since the defendant in its Written Statement filed on June 3, 2009 denied
the title of the plaintiff, the Plaint prayer was amended to include the relief
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of declaration through a petition filed on April 12, 2011. The relief of
declaration has been sought within 3 years from the date when the
defendant denied the plaintiff’s title. Hence, the Suit is well within the
period of limitation.
11. Heard on either side. This Court has perused the Plaint,
Written Statement, the amended Plaint and other evidence available on
record. According to the Plaint averments, the Suit Property was originally
owned by P.S.M.Chidambara Chettiar who executed a registered Sale
Deed dated July 17, 1978 (Ex-A.8) in favour of one Balasubramaniam,
who thereafter remained in possession and enjoyment of the Suit Property.
Then the said Balasubramaniam in turn executed Ex-A.2 – registered Sale
Deed dated November 10, 1978 in favour of one Vadivel, who then got
into possession and enjoyment of the Suit Property. Revenue records were
mutated to Vadivel’s name. Thereafter, in turn, Vadivel executed Ex-A.1 –
registered Sale Deed dated July 3, 1995 in favour of the plaintiff, who
remains in possession and enjoyment of the Suit Property by erecting fence
and by paying land tax. Joint Patta relating to Suit Survey No.494/1 stands
in the names of the plaintiff and the plaintiff’s vendor. Since the Executive
Officer of the defendant – Temple attempted to trespass into the Suit
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Property on September 18, 2007, the plaintiff filed the present Suit. The
cause of action arose on September 18, 2007. These are the Plaint
averments.
12. Suit has been filed on September 21, 2007. The defendant
filed Written Statement on June 3, 2009 whereby the defendant inter alia
denied the title of the plaintiff. Hence, the plaintiff amended the prayer to
include the relief of declaration by way of filing a petition under Order VI
Rule 17 of CPC in I.A.No.677 of 2011 on April 12, 2011 and the same was
allowed on August 25, 2011.
13. To decide the question of limitation in this case, this Court
has to decide whether Article 58 or Article 113 of the Limitation Act, 1963
would be applicable. In other words, the question is, whether Article 58 is
applicable only in case of declaration simpliciter or in a Suit for
declaration and injunction too. If not Article 58, the Suit would come
under the purview of Article 113. It is pertinent to cite a three Judge Bench
decision of the Hon'ble Supreme Court in C. Mohd. Yunus -vs- Syed
Unnissa, reported in 1961 SCC OnLine SC 135, wherein it was held that a
Suit seeking declaration of a right, along with an injunction to prevent the
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other side from obstructing the exercise of that right, falls under the
purview of Article 120 of the Limitation Act, 1908. Article 120 of the
Limitation Act, 1908 corresponds to Article 113 of the Limitation Act,
1963. Further, a learned Single Judge of this Court, in Hemanakumar -vs-
D. Melvinkumar & Others reported in (2018) 4 LW 775, while referring to
Mohd. Yunus’s Case (supra) and a decision of division bench of Hon’ble
Kerala High Court in K.J. Abraham & Others -vs- Mariamma Itty &
Others, reported in 2016 (3) ILR(Ker) 98, has held that Article 58 is for
declaration simpliciter and in a Suit for declaration and injunction, Article
113 of the Limitation Act, 1963 applies. Thus, it is pellucid that Article
113 of the Limitation Act, 1963 governs the instant case.
14. In terms of Article 113, time begins to run when the right
sue accrues. In this case, the right to sue accrued when the defendant
denied the title of the plaintiff in his Written Statement filed on June 3,
2009. Hence, the amendment petition ought to have been filed on or before
June 3, 2012 i.e.,3 years from the date of filing Written Statement. The
plaintiff has filed the petition on April 12, 2011, well within the period of
limitation. Therefore, this Court is of the view that, the declaratory relief
sought for is not barred by limitation. Substantial Question of Law “a” is
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answered accordingly in favour of the plaintiff.
Substantial Question of Law “b”
15. Learned Counsel for the defendant would argue that the
defendant – Temple acquired title vide Ex-B.1 – registered Sale Deed
dated November 9, 1935. P.S.M.Chidambara Chettiar supressed Ex-B.1
and executed Ex-A.8 - Sale Deed, based on which Ex-A.2 - Sale Deed was
executed in favour of the plaintiff’s vendor - Vadivel. From Vadivel, the
plaintiff allegedly purchased the Suit Property vide Ex-A.1. The vendors of
the plaintiff have no legitimate title or right over the Suit Property. In these
circumstances, in view of Ex-B.1 – Sale Deed, the plaintiff’s Suit based on
Ex-A.1 and prior Sale Deeds is not maintainable.
16. In response, learned Counsel for the plaintiff would argue
that P.S.M.Chidambara Chettiar owned an extent of 3 ½ Cents in Survey
No.493/1 within specific 4 boundaries as well as an extent of 8 ½ Cents in
Survey No.494 within specific 4 boundaries, totalling to 12 Cents in both
Survey numbers. He executed Ex-A.8 – Sale Deed in respect of 11 Cents
& 209 ½ Sq.ft. approximately out of the said 12 Cents in favour of
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Balasubramanian who in turn sold the same property in favour of Vadivel
vide Ex-A.2 - Sale Deed, who again in turn sold the same property to the
plaintiff vide Ex-A.1 - Sale Deed. Further, he would refer to Ex-A.3 –
Patta, Ex-A.4 – Patta, Ex-A.5 – Kist Receipts, and the evidence of D.W.1
and argue that the plaintiff’s vendor and thereafter the plaintiff has been in
possession and enjoyment of the Suit Property. Further would argue that
the defendant’s case is that he acquired title vide Ex-B.1 – Sale Deed. But
actually in Ex-B.1, the defendant acquired an extent of 10 Cents out of the
55 Cents, without any specific four boundaries, in Survey No.494. Further
would argue that perusal of Ex-B.3 would show that the Suit Survey
No.494/1 was not let out, and the same is contrary to the recitals in Ex-B.1.
Accordingly, he would submit that the said 10 Cents could be anywhere in
Survey No.494 and it is not related to the Suit Property. Since the
defendant creates cloud over the plaintiff’s title to the Suit Property, the
plaintiff filed this Suit for declaration and permanent injunction which is
perfectly maintainable.
17. Considered both sides’ submissions. Ex-B.1 – Sale Deed
was executed by Venkatachalam, son of Muruganatha Chettiar, in favour
of the defendant – Temple represented by its then Dharmakartas. To be
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noted, though the nomenclature used is Sale Deed, Ex-B.1 is actually in
the nature of Gift Settlement Deed. Only 10 Cents out of the total 55 Cents
without specific four boundaries in Survey No.494 was gifted to defendant
– Temple. The object behind the gift was to erect buildings and use the
income arising therefrom for the benefit of the defendant – Temple. Ex-B.3
which is a List of immovable properties belonging to the defendant, would
show that no property was constructed in the said 10 Cents purchased from
Venkatachalam. Further, the defendant has failed to identify the said 10
Cents with the help of four boundaries. Ex-A.4 = Ex-B.2 is a Joint Patta in
Patta No.435 relating to Suit Survey No.494/1 measuring 12 Ares (29.64
Cents) which stands in the names of 9 joint owners including the plaintiff,
the plaintiff’s vendor and the defendant. Ex-A.5 – Kist Receipts for the
Fasli years 1407, 1410, 1411 and 1412 show that the plaintiff paid Kist for
Patta No.435 (which relates to Suit Survey No.494/1). On the other hand,
Ex-A.3 relating to Survey No.493/1H [Patta No.516] stands in the names
of the plaintiff and three others. The plaintiff has not filed ‘Field
Measurement Book’ Records [in short ‘FMB’] relating to Suit Survey
Nos.493 and 494. In the absence of FMBs, this Court is unable to
appreciate Ex-A.3 properly. From the evidence available on record, this
Court is of the view that Ex-A.3 relates to some other property and not the
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Suit Property. It is unfortunate that the defendant – Temple represented by
its Executive Officer neither raised any question with regard to Ex-A.3 nor
filed the FMBs for the Suit Survey Nos. 493 and 494. From the available
evidence, it is not possible to arrive at a concrete conclusion. The answer
to the questions of whether the vendor of Ex-B.1 and the original vendor of
Ex-A.8 belong to the same family, and whether they are brothers or not,
are unclear. The only similarity is that the father’s name of both, the
vendors of Ex-B.1 and Ex-A.8, is Muruganatha Chettiar, but there is
nothing more available on record. Nor is it clear as to whether the vendor
of Ex-B.1 had only 10 Cents or more. In these circumstances, considering
the materials available on record, there is no reason not to entertain the
plaintiff’s Suit. Substantial Question of Law “b” is answered accordingly
in favour of the plaintiff.
Substantial Question of Law “c”
18. The Suit was filed on September 21, 2007. Written
Statement was filed on June 3, 2009. Issues were framed on July 7, 2009
after which the matter was posted for trial. However, a petition under
Order VI Rule 17 of CPC was filed in I.A.No.677 of 2011, praying to
amend the Plaint to include the prayer for relief of declaration, on April 12,
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2011 before the actual commencement of trial. The amendment petition
was allowed on August 25, 2011 and the amendment was carried out on
September 7, 2011. Additional Written Statement was filed on December
15, 2011 along with Order VIII Rule 9 Petition, which was allowed on
April 18, 2012. Pursuantly, additional issues were framed on the same day
viz., April 18, 2012. From the above, it is clear that the petition to amend
the Plaint was filed before the actual commencement of trial. Further,
under Order VI Rule 17 of CPC, there is no absolute bar against allowing
amendments in Plaint even post trial. The Trial Court, considering the facts
and circumstances of this case, exercised its discretion rightly and allowed
the Plaint amendment petition. There is no illegality or irregularity with the
same. Accordingly, the Substantial Question of Law “c” is answered in
favour of the plaintiff.
Substantial Question of Law “d”
19. Learned Counsel for the defendant would vehemently
contend that the defendant - Temple is a listed temple and that Hereditary
Trustees were holding office till 2011 and thereafter Fit Person was
appointed by the HR & CE Department. Hence, either the Commissioner
of HR & CE Department or the Trust Board, if any functioning, ought to
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have been impleaded as a necessary party and their non-joinder is fatal to
the plaintiff’s Suit.
20. On the other hand, learned Counsel for the plaintiff would
contend that the Suit is filed against the defendant – Temple represented by
its Executive Officer, who functions under the control of the HR & CE
Department. Relying on the Judgment of this Court dated December 14,
2022 in Durgai Lakshmi Kalyana Mandapam -vs- Idols of Arulmigu
Siddhi Ganesar Nataraja Perumal [Appeal Suit No.397 of 2010] as well
as the Judgment of this Court dated June 19, 2023 in The Idol of A/m. Sri
Kalyana Venkataramanaswamy -vs- M.Palanivel and others [Appeal Suit
(MD) No.118 of 2020], he would contend that Executive Officer can sue
or be sued.
21. Heard on either side. This Court deems fit to extract
Section 6 (9) of HR & CE Act which defines ‘Executive Officer’ as
hereunder:
“6. Definitions. - In this Act, unless the context
otherwise requires, -
… … …
(9) “Executive officer ” means a person who is
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appointed to exercise such powers and discharge
such duties appertaining to the administration of a
religious institution as are assigned to him by or
under this Act or the rules made thereunder or by
any scheme settled or deemed to have been settled
under this Act;”
22. Further, it is pertinent to extract Section 45 of HR & CE
Act which deals with appointment and duties of Executive Officers,
hereunder:
“45. Appointment and duties of Executive
Officers. –
(1) Notwithstanding anything contained in this
Act, the Commissioner may appoint, subject to such
conditions as may be prescribed, an executive officer
for any religious institution other than a math or a
specific endowment attached to a math. Explanation.
—In this section “ math” shall not include a temple
under the control of a math.
(2) The executive officer shall exercise such
powers and discharge such duties as may be
assigned to him by the Commissioner. Provided that
only such powers and duties as appertain to the
administration of the properties of the religious
institution referred in sub- section (1) shall be
assigned to the executed officer.
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(3) The Commissioner may define the powers
and duties which may be exercised and discharged
respectively by the executive officer and the trustee,
if any, of any religious institution other than a math
or a specific endowment attached to a math.
(4) The Commissioner may, for good and
sufficient cause, suspend, remove or dismiss the
executive Officer. ”
23. From the above extracts, it can be seen that the Executive
Officer is a statutory authority who functions under the direct supervision
of the Commissioner of the HR & CE Department. In the year 2015, the
government of Tamil Nadu in exercise of the rule making powers vested in
it under Section 116 (2) (i) of the ‘Tamil Nadu Hindu Religious and
Charitable Endowments Act, 1959’ [‘HR & CE Act’ for brevity], framed
rules called ‘Conditions for Appointment of Executive Officers Rules,
2015’. Rule 4 (b) (iii) thereof makes it clear that the Executive Officer can
sue or be sued on behalf of the religious institutions / temples in all legal
proceedings with the approval from the competent authority. Even before
the said rules, the Executive Officer functioning under the control of HR &
CE Department can file Suits representing the temple for eviction of
encroachers, rent defaulters, or any Suit in good faith for the welfare of the
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religious institution / temple, after getting due concurrence from the
Commissioner of HR & CE Department. Further, in the case of A.A.
Gopalakrishnan -vs- Cochin Devaswom Board, reported in (2007) 7 SCC
482, Hon’ble Supreme Court has held that even a worshipper can maintain
a Suit in the interest of temple at appropriate cases considering the facts
and circumstances. This Court in the cases relied on by the learned
Counsel for plaintiff, after elaborate discussions, has held when even a
worshipper can maintain a Suit, then any Suit filed by Executive Officer in
good faith in the best interests of the temple is also maintainable. Hence,
there is no bar against the Executive Officer maintaining a Suit in the
interest of the temple.
24. In this case, according to the plaintiff, the Executive
Officer representing the temple, tried to interfere with the plaintiff’s
peaceful possession and enjoyment of the Suit Property, and therefore he
filed a Suit against the defendant - Temple represented by the Executive
Officer. Further, in this case, the Written Statement as well as the amended
written statement has been filed by the Executive Officer representing the
temple. Further, he has deposed on behalf of the defendant - Temple.
Therefore, law presumes that the Executive Officer is representing the
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Temple, only with the approval of the Commissioner of the HR & CE
Department. Be that as it may, this Suit is one for declaration. Original of
Ex-B.1 has not been filed. Evidence adduce is insufficient. The Suit
Property has not been properly identified / decribed by the defendant as
well as the plaintiff. The location of the Suit Property still remains unclear.
All these things point to the ineffective contest and participation of the
Executive Officer in this case. Rather than merely a power, it is a duty of
the Executive Officer to contest cases filed by and filed against the
temples, ensuring that the best interests of the temple are secured, however
with the permission of the HR & CE Department. The HR & CE
Department need not be a party to every Suit by or against temple, but in
Suits of title disputes, the interests of the temple are better safeguarded
with the intervention of the HR & CE Department rather than the
intervention of Executive Officer solely. Suit for eviction is different from
a Suit for declaration. Section 34 of the HR & CE Act clearly lays down
that any alienation of immovable property without due sanction from the
Commissioner of the HR & CE Department shall be null and void. While
the HR & CE Department’s presence may not be needed in a Suit for
eviction, in Suits relating to title disputes such as the instant case, the
presence of HR & CE Department is much warranted as inferable from
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Section 34. In this case, the Executive Officer ought to have been proactive
and filed a petition to implead the Commissioner of the HR & CE
Department as a necessary party. The HR & CE Department cannot be a
silent spectator in cases involving title disputes of temple properties such
as the instant case. HR & CE Department cannot conveniently take
different stands in different cases as to whether the Executive Officer
representing the temple can sue or be sued, or not. They must maintain a
consistent stand. This Court is of the view that the Commissioner of the
HR & CE Department is necessary party to decide title disputes relating to
religious institutions / temples. Hence, this Court concludes that the Trial
Court as well as First Appellate Court erred in holding that the HR & CE
Department is not a necessary party to this Suit. However, the Suit need
not be dismissed solely on the ground of non-joinder of necessary parties.
The plaintiff may be given one more opportunity to implead the
Commissioner of HR & CE Department as a necessary party.
25. In the interest of Justice, keeping in mind the facts and
circumstances of the case, this Court is inclined to set aside the Judgment
and Decree passed by the First Appellate Court, as well as the Trial Court
and remit the matter back to the Trial Court for fresh adjudication after
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impleading the Commissioner of HR & CE Department as a necessary
party to the Suit for the following reasons:
(i) Both sides have failed to adduce sufficient evidence
to determine the title to the Suit Property;
(ii) In fact, even the location of the Suit Property has not
been clearly established. Perusal of Plaint description
of property would show that Survey No. 493 is the
Suit Survey number and that Survey No. 494 lies on
the northern boundary of Survey No. 493. The Plaint
description of property does not seem to be true as
cumulative perusal of records would reveal that on
the northern side of Survey No. 493/1H is Survey
No. 495 and that Survey No. 494 is far apart;
(iii) As stated supra, there is no sufficient evidence
available on record to answer the questions of
whether the vendors of Ex-A.8 and Ex-B.1 belong to
the same family and whether they are brothers. Even
while assuming that they belong to the same family,
there is no evidence available on record to suggest
the extent owned by them;
(iv) Ex-A.3 – Patta pertains to Survey No.493/1H.
Available evidence shows that it does not relate to
Suit Property. As stated supra, the defendant –
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Temple represented by its Executive Officer neither
raised any question with regard to Ex-A.3 nor filed
the FMBs for the Suit Survey Nos. 493 and 494. It
points to the defendant - Temple’s ineffective
contest. Needless to mention Court is duty bound to
protect temple properties from misappropriation or
wrongful claims [vide Cochin Devaswom Board’s
Case (supra)];
(v) There is nothing available on record to enable this
Court to identify the Suit Property as well as to show
whether the 10 Cents gifted to the defendant
constitutes the Suit Property or not;
(vi) It is not possible to arrive at a just and right decision
with the available evidence.
25.1. Hence, the matter shall be remitted to the Trial Court for
de novo trial after impleading the HR & CE Department as a necessary
party, and the Board of Trustees, if any functioning, as a proper party for
effective adjudication of the matter. Substantial Question of Law “d” is
answered accordingly.
Conclusion:
26. Resultantly, the Second Appeal is allowed in the
following terms:
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(a) Judgment and Decree of the First Appellate Court as
well as the Trial Court are hereby set aside.
(b) The matter is remitted to the Trial Court for fresh
adjudication after impleading the HR & CE
Department;
(c) Trial Court shall re-admit the Suit under its original
number in the register of Civil Suits and proceed to
determine the Suit de novo on its own merits,
untrammelled or uninfluenced by the observations made
by this Court;
(d) Both parties are at liberty to canvas all their contentions
before the Trial Court;
(e) Both parties are at liberty to file additional pleadings,
additional documents and additional evidence, if any,
before the Trial Court and conduct the case as per law;
(f) Plaintiff is at liberty to add other persons as parties if so
advised and/or desired;
(g) Parties are to maintain status quo until and unless
ordered otherwise by competent Court of law;
(h) Both parties are at liberty to pray for appointing
advocate commissioner along with surveyor to identify
the Suit Property;
(i) Keeping in mind the facts and circumstances of the
case, there shall be no order as to costs;
https://www.mhc.tn.gov.in/judis
(j) Appellant is entitled to get refund of Court Fee paid by
it along with the memorandum of grounds of appeal, as
per Section 67 of the Tamil Nadu Court-Fees and Suits
Valuation Act, 1955;
(k) Registry is directed to send a copy of this Judgment to
the Commissioner, HR & CE Department, Chennai for
information and further course of action at their end;
(l) Consequently, connected Civil Miscellaneous petitions
are closed.
05 / 11 / 2024
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
To
1.The Subordinate Court
Avinashi.
2.The District Munsif Court
Avinashi.
3.The Commissioner
Hindu Religious and Charitable Endowments Department
119, Uthamar Gandhi Road, Nungambakkam,
Chennai – 600 034.
R. SAKTHIVEL, J.
TK
https://www.mhc.tn.gov.in/judis
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.98 OF 2020
05 / 11 / 2024
https://www.mhc.tn.gov.in/judis
