Madras High Court
Kasi Chetty Charities vs R.S.Sangameswaran on 17 April, 2025
AS.No.209 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 26.02.2025
PRONOUNCED ON : 17.04.2025
CORAM:
THE HONOURABLE Mr.JUSTICE C.KUMARAPPAN
A.S.No.209 of 2009
Kasi Chetty Charities,
Madras Rep. by its Trustee
A.C.Sundaramurthy,
Door No.21, Hazaram Buildings,
Kasi Chetty Street,
Chennai-1.
... Appellant/plaintiff
-Vs-
1. R.S.Sangameswaran
@ R.S.Jagadeesan
2. R.S.Srinivasan (Died)
3. Tamil Nadu Electricity Board,
Rep. by its Superintending Engineer,
Gobi Distribution Circle,
Bhavani at Door Nos.445, 450 to 452
Cauvery Street, Bhavani.
4. Sasirekha
5. Lakshmi
6. Brindha
7. Karthika
[R4 to R7 brought as LRs of the deceased R2
vide order dated 16.11.2021]
... Respondents
1/18
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AS.No.209 of 2009
PRAYER: First Appeal filed under Section 96 of the Code of Civil
Procedure praying to set aside the judgment and decree dated 17.03.2008
made in O.S.No.4 of 2007 on the file of the Additional District Judge, Fast
Track Court No.4, Bhavani, Erode District.
For Appellant : Mr.B.Balachander
For Respondents : Mr.T.Murugamanickam
Senior Counsel
for Ms.Zeenath Begum for R1, R4 to R7
Ms.J.Hemalatha Ganapathy for R3
*****
JUDGMENT
The instant First Appeal has been filed by the sole plaintiff against
the judgment and decree passed in O.S.No.4 of 2007 by the learned
Additional District Judge, Fast Track Court No.4, Bhavani vide order dated
17.03.2008. The respondents 1 to 3 in the present appeal are the defendants
1 to 3 and the respondents 4 to 7 are the legal heirs of the deceased 2nd
respondent/2nd defendant.
2. For the sake of convenience, the parties will be referred to
according to their litigative status before the Trial Court.
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3. The brief facts which give rise to the instant appeal is that, the
plaintiff is a charitable Trust founded as early as in the year 1899. The suit
property is the absolute property of the plaintiff-Trust. Since the office of
the Trust is at Chennai, the defendants 1 and 2 assumed the management
and control over the suit property from their father. The defendants claimed
right over the suit property based upon the fabricated document. The third
defendant is a tenant inducted by the defendants 1 and 2. According to the
plaintiff, the suit “A” and “B” schedule properties were dedicated as
Dharma Chatiram/Mutt for Arya Vysya Community Denomination. The
document of dedication is in the form of stone inscription installed in the
front Wall of the suit property, which is now under the occupation of the 3 rd
defendant. It is the case of the plaintiff that the devotees, those who are in
pilgrimage will take shelter in the Chatiram, have refreshments. According
to the plaintiff, the stone inscription of the year 1905 would demonstrate the
dedication of the suit property as a Chatiram. The suit “A” schedule
property was classified as Nagi Chetty House in RSR extract of the year
1915. Though the suit properties are in possession and enjoyment of the
defendants 1 and 2, the suit property being a religious Trust, the defendants
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1 and 2 can claim no right over the same.
(a). It is the specific submission of the plaintiff that
R.V.Sangameshwaran Chettiar, who is the paternal grandfather of the
defendants 1 and 2 was originally entrusted with the Management of the
suit property for it's proper maintenance. It now transpires to the plaintiff
that he had in breach of trust fabricated fraudulent document to grab this
property. The said R.V.Sangameshwaran Chettiar's letter dated 01.05.2004
would prove that the ownership of the property is vested with the plaintiff.
After the demise of R.V.Sangameshwaran Chettiar, the father of the
defendants 1 and 2 qua Late.Theepatti Chettiar entered into a mutual belief
partition with the defendants 1 and 2. They would further submit that, since
the plaintiff's property is in occupation of defendants 1 and 2, they are
liable to furnish the accounts to the plaintiff and also hand over the vacant
possession of the same. Hence, the plaintiff has come forward with the suit
to deliver vacant possession of the suit property, for permanent injunction
not to interfere with the suit property in any manner and also to render
accounts.
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4. The said suit was resisted by the defendants 1 and 2. The 2 nd
defendant adopted the written statement filed by the 1st defendant. It is the
case of the defendants that the suit property absolutely belongs to them.
They vehemently disputed the existence of so called stone inscription.
They also disputed the correctness of the description of the suit property.
According to them, the correct Town Survey number for “A” schedule
property is T.S.No.49 and not T.S..No.849/1 as stated in the plaint. They
further submitted that the plaintiff has undervalued the suit and paid
inadequate Court Fee. The “B” schedule property is in TS.No.35 and the
survey number for Kasi Chetty Mandabam is Survey No.37. Survey Nos.36
& 37 are on the eastern side of “B” schedule property. It is the submission
of the defendants that the alleged letter dated 01.05.1924, which is said to
have been signed by R.V.Sangameshwaran Chettiar, who is the grandfather
of the plaintiff, is not in respect of the suit property, but the adjacent
property situated in S.No.37. The defendants submitted that “A” schedule
property originally belongs to Gopalarathinam and his brother
Ranganathan. The defendants' grandfather R.V.Sangameshwaran Chettiar
had purchased “A” schedule property from Gopalarathnam and
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Ranganathan vide Sale Deed dated 12.05.1924. Similarly, “B” schedule
property originally belongs to one Jaganatha Iyangar and Srinivasa Achari.
From them, the defendants' grandfather R.V.Sangameshwaran Chettiar
purchased their half share of the property vide Sale Deed dated 07.07.1926,
and the remaining half share was purchased by him vide Sale deed dated
07.04.1928. Accordingly, it is the submission of the defendants that “A”
and “B” schedule properties are their absolute property. They would further
submit that the very suit filed without a prayer for declaration is not
maintainable. It is also their submission that in the suit filed by the plaintiff
in OS.No.111 of 2005 before the Bhavani District Munsif Court, the
plaintiff admitted that the suit property belongs to the defendants. Hence,
prayed to dismiss the suit.
5. On the above pleadings, the Trial Court framed the following
issues:-
“1/ thjp tHf;Fiuapy; nfhhpa go RthjPd xg;gilg;g[ bgw
chpika[ilatuh>
2/ jhth V brl;oa{y; brhj;J 1k; gpujpthjpf;F ghj;jpag;gl;ljhf
TwtJ cz;ikah>
3/ jhth gp brl;oa{y; brhj;J 1k;. 2k; gpujpthjpf;F ghj;jpag;gl;lJ
vd;gJ cz;ikah>
4/ ntW vd;d ghpfhuk;/”
[Extracted as it is]
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6. Before the Trial Court, the plaintiff examined 3 witnesses as PW1
to PW3 and marked 19 documents as Exs.A1 to A19. On behalf of the
defendants, the 1st defendant was examined as DW1 and marked 40
documents as Exs.B1 to B40.
7. The Trial Court, after having considered the oral and documentary
evidence, arrived at a conclusion that the very suit without the prayer of
declaration is not maintainable, and also found that the plaintiff has
miserably failed to prove their ownership over the suit property. The Trial
Court also found that the defendant had established his title by producing
the relevant documents. Thus, ultimately dismissed the suit. Aggrieved
with the above finding, the plaintiff is before this Court.
8. Mr.B.Balachander, learned counsel for the appellant/plaintiff
would vehemently contend that the Trial Court has failed to note the
evidence of PW2 to the effect that the Charity was established by Kasi
Chetty's family. The learned counsel would further contend that PW2 has
categorically spoken about the stone inscription embedded in the suit
property. The learned counsel would further contend that even for a
moment, if we assume that the suit property belongs to the defendants'
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grandfather Sangameshwaran Chettiar, by virtue of the lease deed-Ex.B39,
his legal heirs cannot succeed the Trust property. It was also contended that
the Trial Court misdirected by relying upon the fabricated document. The
learned counsel would further contend that, since there is no denial in
respect of the plaintiff's right over the suit property, no questions arise for
seeking relief of declaration. It was further contended that the Trial Court
misunderstood the difference between burden of proof and onus of proof
for issue nos.2 and 3, and landed into a wrong conclusion. Hence, the
learned counsel prayed to allow this appeal and thereby, seeking a decree as
prayed for.
9. Per contra, Mr.T.Murugamanickam, learned Senior Counsel
appearing for Ms.Zeenath Begum, counsel for the respondents 1, 4 to 7
would contend that the defendants had categorically and independently
established their right and title over the suit “A” and “B” schedule property.
The learned Senior Counsel would further contend that even in the suit filed
by the plaintiff before the Bhavani District Munsif Court, they have
categorically admitted that the ownership of the suit property vested with
the defendant. The learned Senior Counsel would also further contend that
the plaintiff having come forward with the suit for possession, has not filed
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any scrap of paper to prove their possession and title. He would further
contend that the existence of so called stone inscription has not been proved
before the Court, and that even according to PW1, no such inscription is
available before the Court. It was also contended that the mere suit for
possession without seeking the relief of declaration is not maintainable and
in support of this submission, he relied on the judgment of the Hon'ble
Supreme Court in Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs.
and others reported in 2006 6 CTC 237. Hence, the learned Senior
Counsel would submit that the findings rendered by the Trial Court is in
accordance with law and fact, which does not require any interference.
Thus, prayed to dismiss the appeal.
10. I have given my anxious consideration to either side submissions.
11. From the submissions of either side, the following points arise for
our consideration:-
Points:-
1. Whether the plaintiff is entitled for a decree for possession as prayed
for?
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2. Whether the plaintiff is entitled for an injunction as prayed for?
3. Whether the plaintiff is entitled for rendition of account as prayed
for?
4. Whether the filing of the suit without the relief of declaration is
maintainable or not?
5. To what other reliefs?
12. Since all the points are interconnected and intertwined, this Court
deems it appropriate to take all the issues together for discussion. It is
pertinent to mention here that the above four issues converge on the points
of the ownership over the suit property. While claiming the ownership, in
the plaint in paragraph 6, the plaintiff set up a title based upon the stone
inscription erected in the suit property. For ready reference, I deem it
appropriate to extract the relevant pleadings made in the plaint:-
“6. The plaintiffs submit that the properties described in
schedule A and B are dedicated for being used by the Arya
Vysya Community Denomination as Dharma Chatiram/Mutt.
The document of dedication is in the nature of a stone
inscription on the front wall of the property in the occupation
of the 3rd defendant. The property has been dedicated as a
Dharma Chatiram meaning a “Choultry” of South India where
travelers and pilgrims can take shelter and be provided with
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refreshments. The stone inscription is of the year 1905 and
has a presumptive evidentiary value under the Evidence Act.”
13. Therefore, it is their categorical submission that there are no
registered document to establish their ownership over the suit property. It
is in this background, the question that whether the plaintiff have
established the existence of the stone inscription become relevant. In this
regard, it is appropriate to refer the evidence of PW1, who proclaims as a
Senior Trustee of Kasi Chetty Charities. He deposed as follows:-
“fhrp brl;o mwf;fl;lisf;F ,e;j jhth gp brl;a{y; brhj;J vg;go
te;jJ vd;why; gphplO; !;fhuh;fs; bfhLj;jhh;fs;/ mth; jpth!;!hf
gzpg[hpe;jhh;/ ve;j tUlk; mth;fs; bfhLj;jhh;fs; ve;j tUlk; mij
bgw;whh;fs;/ mth;fSf;F vg;go chpik K:yk; te;jjw;F Mtzk;
,y;iy/ me;j brhj;jpy; fy;btl;L xd;W cs;sJ vd;Wk;; ahh; mij
mg;gzpj;jhh;fs; vd;Wk; vd; jftypy; vGjpa[s;nsd;/ me;j khjphp fy;
btl;L ,y;iy vd;Wk; mij mg;gzpf;ftpy;iy vd;Wk; gpujpthjpfs;
brhd;dhy; rhpjhd;/ Mdhy; me;j fy;btl;il vLj;Jtpl;lhh;fs;/
me;j fy;iy vd; Kd; mg;g[wg;gLj;jtpy;iy/ vg;nghJ
mg;gw[ g;gLj;jpdhh;fs; vd;W vdf;F bjhpahJ/ nf!; nghl;l Kd;g[
mg;gw[ g;gLj;jpdhh;fsh my;yJ gpdg; [ mg;gw[ g;gLj;jpdhh;fsh vd;Wk;
bjhpahJ/”
Therefore, the very foundation of the title over the suit property is not
surfaced before the Trial Court.
14. Apart from that, the learned Senior Counsel would also invite the
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attention of this Court about OS.No.111 of 2005. The said suit was filed by
the present plaintiff against one Anjaneyar Temple. According to the
admission of PW1, the property of Kasi Chetty Trust is on the eastern side
of the property dealt in the two documents relied by the defendant herein. It
is an admitted fact that those two documents stand in the name of the 1st and
2nd defendant's grandfather Mr.Sangameshwaran Chettiar. In this regard, it
is appropriate to extract the following admission of PW1:-
“fhrp brl;o kz;lgj;jpwF
; k;. M";rneah; nfhapYf;Fk; jfuhW
te;jnghJ jpUnyhr;rd; vd;gth; mwf;flisapd; brayhsh; vd;w
KiwapYk;. murpd; nghpYk;. gthdp chpikapay; nfhh;l;oy;
m/t/vz;/111-05 vd;w tHf;F jhf;fy; bra;jhh;/ me;j tHf;fpy; igry;
ele;jJ/ me;j igrPypy; fhrp brl;o kz;lgj;jpw;F 30 mof;F 15 mo
vd;w tPfpjj;jpy; igry; Vw;gl;lJ vd;W brhd;dhy; rhpjhd;/ fhrp
brl;o kz;lgk;. fhrp brl;o mwf;fl;lisf;F jhd; ghj;jpag;gl;l; J
vd;gij fhl;l me;j tHf;fpy; lt[d; rh;nt vz;/35 ,uz;L fpiua
gj;jpu';fis jhf;fy; bra;jpUe;jJ vd;why; rhpjhd;/ me;j fpiua
gj;jpu';fspy; fhrp brl;o kz;lgk;. M";rneah; nfhapy; Mfpaitfs;
fpiua brhj;jpw;F fpHf;fpy; cs;sjhf fhl;lg;gl;Ls;sJ vd;why;
rhpjhd;/ me;j fpiua';fs; ,uz;Lk; 1. 2 gpujpthjpapd; ghl;lhdhh;
Mh;/tp/r';fnk!;tud; brl;oahh; bgahpy; ,Ue;jJ vd;why; rhpjhd;/”
15. From the above admissions, it is categorical that apparently no
documents available for the plaintiff to substantiate their right over the suit
property. Further, even according to their own admission, the suit property
is on the eastern side of the defendants' property. To put it otherwise, Kasi
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Chetty Mandabam is on the eastern side of the suit property.
16. Apart from the above defences, the plaintiff had also relied upon
Ex.A2-Town Survey Register. But, in Ex.A2 for S.No.49 qua “A” schedule
property, the defendants' grandfather's name Sangameshwaran Chettiar
found a place. As such Ex.A2 covertly and overtly renege the plaintiff's
title over the “A” schedule property.
17. In order to establish their title, they also relied upon the property
note book - Ex.A18. The Trial Court has rightly disbelieved Ex.A18, which
is a 40 page note book written in Kannada, and that through which nothing
can be inferred regarding the ownership over the suit property.
18. A faint attempt was made by the learned counsel for the plaintiff
by relying upon Ex.A5-letter, which was sent by the defendants' grandfather
to the Kasi Chetty Trust. Through which, the learned counsel for the
plaintiff would submit that the suit properties were under the management
of the defendants' grandfather and that he wanted some money from the
Trust for the maintenance of suit property, which according to the plaintiff
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is nothing but the admission of the plaintiff's right over the suit property by
the defendants' grandfather. But, while looking at Ex.A5-letter with
forensic insight, we do not infer anything as to the identity of the property
which the said letter refers. Therefore, this Court has no hesitation to reject
the argument of the plaintiff in respect of Ex.A5-Letter.
19. At this juncture, it is relevant to discuss the defendants' pleadings.
The defendants, in paragraphs 9 and 10 of the written statement, have
categorically pleaded as to the trajectory of title with reference to the
respective sale deed. In respect of “A” schedule property, they produced
[Ex.B9], [Ex.B10], [Ex.B11] and [Ex.B12]. Further, through Ex.B6-
Partition Deed dated 30.10.1998, “A” schedule property was allotted to the
first defendant. In order to substantiate the claim over “B” schedule
property, the defendants produced Exs.B14, B16 and B17. According to
Ex.B6, the “B” schedule property was alloted to the 2nd defendant.
20. Now let us consider the legal submission of the defendants. They
relied the judgment in Anathula Sudhakar's case [cited supra]. As rightly
contended by the learned Senior Counsel, the defendants in categorical
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terms denied the plaintiff's title and they also independently set up title in
their favour. The said pleading categorically disputing the plaintiff's title
by explaining the nature of cloud over title. In the above judgment, the
Hon'ble Supreme Court held that, when there is a cloud and apparent defect
in plaintiff's title by showing some prima facie right, then it is mandatory
for the plaintiff to seek for a relief of declaration. In this regard, it is
relevant to extract paragraph 12 hereunder:-
“12. We may, however, clarify that a prayer for declaration
will be necessary only if the denial of title by the defendant or
challenge to the plaintiff's title raises a cloud on the title of the
plaintiff to the property. A cloud is said to raise over a person's title,
when some apparent defect in his title to a property, or when some
prima facie right of a third party over it, is made out or shown. An
action for declaration, is the remedy to remove the cloud on the title
to the property. On the other hand, where the plaintiff has clear title
supported by documents, if a trespasser without any claim to title or
an interloper without any apparent title, merely denies the plaintiff's
title, it does not amount to raising a cloud over the title of the
plaintiff and it will not be necessary for the plaintiff to sue for
declaration and a suit for injunction may be sufficient. Where the
plaintiff, believing that the defendant is only a trespasser or a
wrongful claimant without title, files a mere suit for injunction, and
in such a suit, the defendant discloses in his defence the details of
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the right or title claimed by him, which raise a serious dispute or
cloud over the plaintiff's title, then there is a need for the plaintiff, to
amend the plaint and convert the suit into one for declaration.
Alternatively, he may withdraw the suit for bare injunction, with
permission of the court to file a comprehensive suit for declaration
and injunction. He may file the suit for declaration with
consequential relief, even after the suit for injunction is dismissed,
where the suit raised only the issue of possession and not any issue
of title.”
21. In the case in hand, though the defendants had set up clear title in
their favour, the plaintiff failed to seek the relief for a declaration.
Therefore, even on the ground of absence of prayer for declaration, the
plaintiff's suit has to fail.
22. It is also relevant to refer that in order to prove the possession of
the “A” schedule property, the defendants have produced Exs.B23 to B27
and B29. Similarly, to prove the possession of “B” schedule property, the
defendants have produced Exs.B36 and B37. But, no document produced
by the plaintiff to prove their possession. In view of the above detailed
discussion, this Court is of the indubitable opinion that the plaintiff has not
proved their title over the suit property. When the plaintiff lacks title, their
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relief for possession and rendition of account would also fail as a natural
sequittur. Thus, while re-appreciating the entire evidence and documents, I
do not find any infirmity in the judgment of the Trial Court. Accordingly,
all the points are decided in favour of the defendants.
23. In the result, this Appeal Suit stands dismissed. There shall be no
order as to costs.
17.04.2025
Index : Yes/No
Speaking Order/Non-Speaking Order
NCC : Yes/No
kmi
To
The Additional District Judge,
Fast Track Court No.4,
Bhavani, Erode District.
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C.KUMARAPPAN, J
kmi
Pre-Delivery Judgment in
17.04.2025
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