Madras High Court
M.Thangamani (Died) ... 1St vs Arulmighu Mahadevasamy Temple on 30 September, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
S.A(MD)Nos.372 & 373 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.09.2024
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)Nos.372 & 373 of 2005
1.S.A(MD)No.372 of 2005:
1.M.Thangamani (died) ... 1st Appellant/Appellant/Defendant
2.Nagaraj
3.Ammapillai
4.M.Saraswathi
5.Karthika ... Appellants 2 to 5/Lrs of the deceased
1st appellant
(Appellants 2 to 5 are brought on record as Lrs of the
deceased 1st appellant vide order dated 19.09.2023
made in C.M.P(MD)Nos.9470, 9471 & 9473 of 2023)
Vs.
Arulmighu Mahadevasamy Temple,
Through its Managing Trustees,
1.A.Muthuramalingam ... 1st Respondent/Respondent/Plaintiff
2.S.M.Nataraja Pillai
3.C.Muthukaruppa Pillai
4.K.A.Nataraja Pillai
5.R.Chinnadurai Pillai
6.N.Muthukaruppan ... Respondents 2 to 6
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 13.05.2004 passed
in A.S.No.28 of 1995, on the file of the Fast Track Court No.3, Madurai,
1/18
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
confirming the judgment and decree dated 02.06.1994 passed in
O.S.No.485 of 1991 on the file of the Principal District Munsif Court,
Madurai Town.
For Appellants 2 to 5 : Mr.A.Ganesan
For RR 2, 4 & 6 : Mr.S.Manohar
2.S.A(MD)No.373 of 2005:
P.Natarajan ... Appellant/Appellant/Defendant
Vs.
Arulmighu Mahadevasamy Temple,
Through its Managing Trustees,
1.A.Muthuramalingam ... 1st Respondent/Respondent/Plaintiff
2.S.M.Nataraja Pillai
3.C.Muthukaruppa Pillai
4.K.A.Nataraja Pillai
5.R.Chinnadurai Pillai
6.N.Muthukaruppan ... Respondents 2 to 6
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 13.05.2004 passed
in A.S.No.29 of 1995, on the file of the Fast Track Court No.3, Madurai,
confirming the judgment and decree dated 02.06.1994 passed in
O.S.No.1353 of 1991 on the file of the Principal District Munsif Court,
Madurai Town.
For Appellant : Mr.A.Ganesan
For RR 2, 4 & 6 : Mr.S.Manohar
2/18
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
COMMON JUDGMENT
The concurrent Judgments and decrees passed in O.S.Nos.485 of
1991 & 1353 of 1991 on the file of the Principal District Munsif Court,
Madurai Town and in A.S.Nos.28 of 1995 & 29 of 1995, on the file of
the Fast Track Court No.3, Madurai, are being challenged in the present
Second Appeal.
2.The first respondent as plaintiff, instituted suits in
O.S.Nos.485 of 1991 & 1353 of 1991 on the file of the trial Court for
possession and arrears of rent as against the defendants.
3.For the sake of convenience, the parties are referred to
as, as described before the trial Court.
4.The brief facts of the plaintiff in O.S.No.481 of 1991 are
as follows:
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
4.1.According to the plaintiff, the suit schedule property
belongs to the plaintiff Temple and there was an agreement between
the plaintiff and the defendant in respect of the suit schedule property
and in respect of the said agreement, the defendant became a tenant
of the suit property. The defendant agreed to pay a monthly rent of Rs.
25/- and the same was payable by the 7th day of every English
Calender month. It was also agreed by the parties not to sub-let the
suit property to any stranger. Right from the beginning, the defendant
was irregular in the payment of rent. The defendant has accumulated
the arrears of rent from 01.01.1989 for 23 months amount to Rs.
575/-. The defendant, inspite of the oral demand made by the plaintiff,
did not pay the arrears of rent. Hence, the plaintiff issued a notice to
the defendant on 28.11.1990 terminating the tenancy and directing
him to vacate the suit property and hand over vacant possession to the
plaintiff. The defendant did not pay the arrears of rent but sent a reply
notice dated 19.12.1990 claiming ownership over the property.
Therefore, the plaintiff Temple has filed the suit for the abovestated
relief.
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
4.2.The defendant filed a written statement stating that the
suit was not maintainable. The averments that the defendant was
residing in the suit schedule property were true. There was no
agreement in between the plaintiff and the defendant as regards the
tenancy. For more than 60 years, the defendant and his fore-fathers
have been living in the suit property. One Veerabathirapillai filed a suit
in O.S.No.410 of 1986 claiming arrears of rent and the defendant paid
all the arrears and the said Veerabathirapillai allowed the said matter
to go for default and he died later, leaving behind his son Chinnadurai.
The plaintiff who claims to be the Managing Trustee of the Temple,
standing on the foot of the Veerabthirapillai filed an E.P.No.396 of 1988
for execution of decree. It was resisted by saying that no one was
appointed as Managing Trustee and the plaintiff could not execute the
decree. The plaintiff allowed the petition to go for default. Thus, the
plaintiff was estopped from filing the suit. The plaintiff has no authority
to file the suit and the same is liable to be dismissed.
5.The brief facts of the plaintiff in O.S.No.1351 of 1991 are
as follows:
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
5.1.According to the plaintiff, the suit schedule property
belongs to the plaintiff Temple and there was an agreement between
the plaintiff and the defendant in respect of the suit schedule property
and in respect of the said agreement, the defendant became a tenant
of the suit property. The defendant agreed to pay a monthly rent of Rs.
50/- and the same was payable by the 5th day of every English
calendar month. It was also agreed by the parties not to sub-let the
suit property to any stranger. Right from the beginning, the defendant
was irregular in the payment of rent. The defendant has accumulated
the arrears of rent from 01.07.1988 for 29 months amounting to
Rs.1,450/-. The defendant, inspite of the oral demand made by the
plaintiff, did not pay the arrears of rent. Therefore, the plaintiff Temple
has filed the suit for the abovestated relief.
5.2.The defendant filed a written statement stating that the
suit was not maintainable. The averments that the defendant was
residing in the suit schedule property were true. There was no
agreement in between the plaintiff and the defendant as regards the
tenancy. For more than 60 years, the defendant and his fore-fathers
have been living in the suit property. One Veerabathirapillai filed a suit
in O.S.No.411 of 1986 claiming arrears of rent and the defendant paid
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
all the arrears. The plaintiff has no authority to file the suit and the
same is liable to be dismissed.
6.Since the plaintiff in both the suits are one and the same,
the trial Court has clubbed both the suits and passed the common
judgment.
7.Before the trial Court, on the side of the plaintiff, one
Muthuramalingam Pillai was examined as P.W.1 and Exs.A1 to A8 were
marked. On the side of the defendants, one Murugiah was examined as
D.W.1 and Exs.B.1 to B.4 were marked.
8.On the basis of the rival pleadings made on either side,
the trial Court, after framing necessary issues and after evaluating both
the oral and documentary evidence, has decreed the suits directing the
defendants to hand over vacant possession of the suit property within a
period of three months and to pay the arrears of rent as claimed.
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
9.Aggrieved by the Judgment and decree passed by the
trial Court, the defendants herein as appellants, had filed Appeal Suits
in A.S.Nos.28 of 1995 & 29 of 1995 on the file of the first Appellate
Court.
10.The first Appellate Court, after hearing both sides and
upon reappraising the evidence available on record, dismissed the
appeal suits.
11.Challenging the said concurrent judgments and decrees
passed by the Courts below, the present Second Appeals have been
preferred at the instance of the defendants as the appellants.
12.At the time of admitting the present second appeals,
this Court had framed the following substantial questions of law for
consideration:
'(i) Whether the defendant is not entitled
to hold the property in lieu of services rendered as
poojari to the plaintiff Temple?
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
(ii) Whether the lower Court is right in not
taking into consideration the documents filed as
additional evidence. Even though the application
under Order 41 Rule 27 and admitted the additional
documents produced and hearing the appellants on
that point, but failed to consider the same in the
Judgment?
(iii) Whether the lower Court is right in
not considering the waiver or notice as contemplated
under Section 113 of the Transfer of Property Act, the
second notice issued by the plaintiff's temple and the
subsequent action based on the second notice?'
13.The learned counsel appearing for the
appellants/defendants would submit that both the Courts below have
not properly discussed the oral evidence let in; the Appellate Court
erred in not framing relevant points for determination in the first
appeal before deciding the claim under Order 41 Rule 31 C.P.C; the
Appellate Court erred in not considering the additional documents filed
under Order 41 Rule 27; the Appellate Court erred in not considering
the waiver of notice by the plaintiffs by issuing a second notice to quit
falling within the purview of the illustration (b) of the Section 113 of
the Transfer of Property Act; the Appellate Court failed to take proper
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
inference from Ex.B.1 and Ex.B.3 and failed to note that the Temple is
under the control of the Hindu Religious and Charitable Endowments
Department and that the plaintiffs have not proved their locus-standi to
file the suit on behalf of the institution and the Appellate Court has
failed to note that there is only one house bearing Door No.10 M and
the defendants in both the houses are living jointly in the same house.
The defendants are co-brothers. The father of the defendant in O.S.No.
485 of 1991 who stood as D.W.1 is the head of the family and has
been working as poojari of the Temple. The defendant in O.S.No.1353
of 1991 is his brother's son. The filing of two suits as O.S.Nos.485 and
1353 of 1991 showing tow houses bearing Door No.10 and 10M-1 are
not correct. The fact that the father of the defendant has not been
sued even though he is the head of the family clearly proves that the
plaintiff has wantonly avoided him as he may claim his right in the
house as a pooraji and the house was given free rent of rent for his
rendering service in the Temple. The Appellate Court failed to note that
a prayer for possession on behalf of the Temple cannot be granted
even if suits filed by the defacto trustees and prayed for allowing the
Second Appeal.
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
14.The learned counsel appearing for the
appellants/defendants would submit that the defendants have filed
additional documents in I.A.No.368 of 1999 dated 19.07.1999 before
the Appellate Court, which was not accepted by the Court below, but
rejected the same.
15.The learned counsel appearing for the respondents 2, 4
and 6/plaintiffs would submit that there exists a tenant and landlord
relationship between the plaintiff and the defendants and when they
defaulted in paying the rent, the same was questioned by them and
suits were filed by one of the Managing Trustee and the said Managing
Trustee proceeded with the suit and the said suit was also ended in
favour of the plaintiff/Temple and the defendants also paid the arrears
of rent before the execution court and the same was also admitted by
them in their written statements. He would also submit that the
defendants cannot produce the documents which were not marked
before the court or accepted before the Court at this juncture.
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
16.Heard the learned counsel appearing for the appellant
and the learned counsel appearing for the respondents 2, 4 & 6 and
also perused the records carefully.
17.According to the plaintiff, the suit schedule property
belongs to the plaintiff Temple and there was an agreement between
the plaintiff and the defendants in respect of the suit schedule property
and in respect of the said agreement, the defendants became tenants
of the suit property. The defendants agreed to pay a monthly rent of
Rs.25/- and Rs.50/- and the same was payable by the 7th day of every
English Calender month. It was also agreed by the parties not to sub-
let the suit property to any stranger. Right from the beginning, the
defendants were irregular in the payment of rent. The defendants have
accumulated the arrears of rent from 01.01.1989 for 23 months
amounting to Rs.575/- and from 01.07.1988 for 29 months amounting
to Rs.1,450/-. The defendants, inspite of the oral demand made by
the plaintiff, did not pay the arrears of rent.
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
18.According to the defendants, it was an admitted fact
that the defendants were residing in the suit schedule property. There
was no agreement in between the plaintiff and the defendants as
regards the tenancy. For more than 60 years, the defendants and his
forefathers were living in the suit property. One Veerabathirapillai filed
a suit in O.S.No.410 of 1986 claiming arrears of rent and the
defendants paid all the arrears and the said Veerabathirapillai allowed
the said matter to go for default and he died later, leaving behind his
son Chinnadurai. The plaintiff who claims to be the Managing Trustee of
the Temple, standing on the foot of the Veerabthirapillai filed an
E.P.No.396 of 1988 for execution of decree. It was resisted by saying
that no one was appointed as Managing Trustee and the plaintiff could
not execute the decree. The plaintiff allowed the petition to go for
default. Thus, the plaintiff was estopped from filing the suit.
19.The contention of the defendants is that by virtue of
permanent possession, their fore-fathers were doing poojas in the said
Temple as poojaris and they are entitled to live there and they need
not pay any rent and it is their property and their fore-fathers are
residing there for a very long period and they also claimed ownership
by possession.
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
20.On going through the evidences and documents of the
defendants, it is found that in their very own written statement itself,
they have admitted that they have paid the arrears of rent as per the
earlier suits in O.S.Nos.410 & 411 of 1986 and the said suits were also
ended in favour of the plaintiff Temple. Further, it is seen that the
arrears have been paid in one lumpsum, which would show that the
plaintiff's case has been proved and the defendants have not produced
any piece of evidence to show that those lands are defendants own
lands. According to the learned counsel appearing for the defendants,
the defendants have inherited the same from their forefathers by way
of settlement deed and they also filed a suit in the year 2017 before
the Principal District Munsif Court, Madurai for declaration of title for
the very same property and prayed that this suit need not be decided
at this juncture. This Court, in this case, has not decided on the title of
the plaintiff or the defendants and it is only on the question of recovery
of payment and arrears of rent. The arrears of rent have been fixed by
the trial Court as well as the Appellate Court and the defendants also
paid the arrears of rent in the earlier suits, they are also liable to pay
the rent for the remaining period from the date of the suit.
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
21.The claim made by the defendants that their
predecessor-Murugaiah Possari was admitted as a person who was
doing pooja in the said Temple and hence, the claim that they are in
possession for a long period is not accepted as the said Murugaiah
Poosari had given evidence that he was terminated earlier and against
which, a suit was filed in which it was held that the said Murugiah
Poosari had been terminated without giving him any proper notice and
the same is in violation of principles of natural justice and the Court
below has held that after giving him notice and after receiving the
explanation, the same can be decided. Till such time, Murugiah Poosari
shall not be terminated or shall not be prevented from doing the said
pooja.
22.Regarding the recovery of possession, the plaintiff is
entitled for the recovery of possession. In the evidence, the defendants
have stated that they have been forcibly evicted from that place with
the help of the police. That being the case, already possession has
been recovered and the plaintiff's to be in possession of the suit
property. As the plaintiff proved the case beyond doubt that they are
the persons who have given it to the defendants in lieu of salaries for
doing poojas in the said Temple, which has been accepted and
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
admitted in evidence, this Court is of the view that there is no merit in
the Second Appeals and the Second Appeals are dismissed. It is left
open to the parties to agitate the title and other remedies before the
concerned Court subject to the limitation.
23.From the above, this Court is of the view that the
Judgments and Decrees of the Courts below are accompanied with
sufficient reasons, in which, this Court does not want to make any
interference. Accordingly, the substantial questions of law framed are
ordered in favour of the plaintiff.
24.In the result, these Second Appeals stand dismissed. No
costs.
30.09.2024
Index : Yes/No
Internet : Yes/No
ps
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
To
1.The Fast Track Court No.3,
Madurai.
2.The Principal District Munsif Court,
Madurai Town.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD)Nos.372 & 373 of 2005
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)Nos.372 & 373 of 2005
30.09.2024
https://www.mhc.tn.gov.in/judis
