Madras High Court
M.Ulagammal vs G.Somasundaram on 6 March, 2025
SA(MD)No.926 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 06/03/2025
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA(MD)No.926 of 2005
and
CMP(MD)No.5967 of 2005
M.Ulagammal : Appellant/Appellant/Defendant
Vs.
G.Somasundaram : Respondent/Respondent/Plaintiff
PRAYER:-Second Appeal is filed under Section 100 of
the Civil Procedure Code, against the judgment and decree
in AS No.72 of 2004 on the file of the Subordinate
Judge's Court, Devakottai, dated 24/01/2005 confirming
the decree and judgment in OS No.13 of 2003 on the file
of the District Munsif's Court, Devakottai, dated
17/08/2004.
For Appellant : Mrs.AL.Gandhimathi
Senior counsel
for M/s.M.Rajeswari
For Respondent : Mr.R.Sundar Srinivasan
J U D G M E N T
This Second Appeal is filed against the judgment and
decree passed in AS No.72 of 2004 by the Sub Court,
Devakottai, dated 24/01/2005, confirming the decree and
judgment passed in OS No.13 of 2003 by the District
Munsif Court, Devakottai, dated 17/08/2004.
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2.The averments in the plaint in brief:-
The property measuring about 230 square meters
belongs to one Kottur Agastheeswara Swamy Temple.
Originally, there was a house occupied by one Adyana
Battar (Archakar) of the temple. On the west of the suit
property, the house of the temple Gurukkal was situated.
One Subramania Gurukkal was having pooja right in the
temple on turn basis. He was doing pooja for sometime.
Later his son SP.Kumar and SP.Ramanathan were doing pooja
on turn basis. Later, they abandoned the service. Now the
pooja is performed by Agestheeswara Gurukkal in addition
to the turn period. The plaintiff is safeguarding the
property. On the west of the property, houses of the
ancestors of SP.Kumar and SP.Ramanathan were situated. In
the mortgage deeds, dated 07/12/1926 and 30/06/1943, it
was admitted that the suit property belongs to the
temple. The defendant is claiming right through SP.Kumar
and SP.Ramanathan. He is estopped from disputing title of
the temple over the suit property. During Nathan survey,
SP.Kumar and SP.Ramanathan were issued with patta
wrongly. They are having right only in the property
situated in Survey No.111/2A. During the pendency of the
suit, the defendant encroached upon the property and so,
the suit was amended for proper prayer.
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3.SP.Ramanathan executed a sale deed in favour of
the defendant containing false and frivolous recitals as
if the property belongs to him through the sale deed,
dated 09/08/2000. Sri Agastheeswara Swamy Temple was
originally under the management of the Nattukottai
Nagarathar as Trustees. But have abandoned the temple
management due to some internal dispute. The plaintiff is
one of the worshipers of the temple and so, he got every
right to take steps for recovering the property. On that
right, he issued notice, on 12/10/2002 to the defendant
to hand over the vacant possession. So, the suit is laid
for declaration, recovery of possession by removing the
superstructure and for permanent injunction.
4.Statement:- It is denied that the suit property
belongs to Kottur Agastheeswara Swamy Temple. The suit
property originally belonged to one Abatharna Gurukkal.
After his death, his son namely Ramanathan inherited the
property. After his death, his son Subramanian and after
that, Ramanathan and Kumar inherited the property were in
possession and enjoyment and sold the property on
09/08/2020 to the defendant. It is admitted that on the
west of the suit property, one Kumar and Ramanathan's
ancestral houses were situated. It is denied that the
suit property was admitted by the mortgagors as if
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belongs to the temple. The defendant has no knowledge
about the mortgage deed and recitals.
5.The suit property belongs to the defendant and he
was issued with patta. So, it is denied that they have no
right in that suit property and there were estopped from
disputing the tile of the temple. The defendant has put
up a construction. Apart from that, he has also put up
cattle shed. The suit is also bared by limitation. The
temple or deities are not added as parties.
6.Upon the pleadings of both sides, the trial court
framed the following issues for consideration:-
(1)Whether the plaintiff is
entitled to the relief of declaration
that the suit property belongs to
Kottur Agastheeswara Samy Temple?
(2)Whether the plaintiff is
entitled to get possessory right in
respect of the suit property?
(3)Whether the plaintiff is having
any right to file the suit?
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(4)Whether the suit is bad for non
joinder of necessary party, since the
Kovil is not a party to the suit?
(5)To what other relief, the
plaintiff is entitled to?
7.On the side of the plaintiff 2 witnesses were
examined and 4 documents marked. On the side of the
defendant, 2 wo witnesses were examined and 6 documents
marked. Commissioner's report and plan were marked as
Exs.C1 and C2.
8.The trial court decreed the suit as prayed for
with costs directing the defendant to surrender vacant
possession within a month. Against which, AS No.72 of
2004 preferred before the appellate court namely Sub
Court, Devakottai. The appellate court concurred with the
judgement and decree of the trial court and dismissed the
appeal.
9.Against which, this second appeal is preferred.
10.At the time of admission the second appeal, the
following substantial questions of law were framed:-
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(1)When it is categorically
admitted by the plaintiff that there
are trustees and executive officer for
the administration of the suit temple
and while it is not proved by the
plaintiff that the trustees and
executive officer have failed to
protect the temple's interest, whether
the suit by a worshipper of the temple
for declaration of title and recovery
of possession of the temple's property
without impleading either the temple or
its trustees or its executive officer
as a party is maintainable?
(2)Whether the lower courts are
right in solely relying on a four
boundary recital found in Exts.A1 & A2,
as the only basis for the suit temple's
title and possession over the suit
property?
(3)Whether the Courts below are
right in holding that the suit property
and the property mentioned as eastern
property in the four boundaries of
Exts.A1 & A2 are the same without any
correlation and that too when both
exhibits have contained inherent
contradictory four boundaries?
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Substantial questions of law 2 and 3:-
11.Before we go into the substantial questions of
law regarding the power of the respondent herein to file
the suit on behalf of the deity without impleading,
either the idol or the officials, these two issues can be
taken up first for discussion.
12.The learned counsel appearing for the respondent
would submit that the substantial questions of law does
not arise at all. According to him, the trial court as
well as the appellate court rendered findings, which are
based upon the evidence purely on the question of facts.
So, when the concurrent judgments are rendered, this
court by exercising the power under section 100 of the
Civil Procedure Code cannot go into the disputed question
of facts and for that purpose, he would rely upon the
judgment reported in Ramanuja Naidu Vs.Kianniah Naidu and
another (AIR 1996 SC 3021). He is referring to para 7
which is extracted hereunder:-
“The scope of Section 100 of Civil
Procedure Code even before the
amendment of the Section in 1976 has
bee neatly summarised in Mulla's CPC
(15th Edn.Vo.I) at page 703. It is
stated therein as follows:
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The section even as it stood
before it recent amendment allowed a
second appeal only on the grounds
setout in Clauses(a), (b) or [c].
Therefore, whereas a Court of first
appeal is competent to enter into
questions of facts and decide for
itself whether the findings of fact by
the lower court are or are not
erroneous, a Court of Second appeal was
not and is not competent to entertain
the question as to the soundness of a
finding of fact by the Court below. A
second appeal, accordingly, could lie
only on one of the other grounds
specified in the section....
As held in Durga Chowdhrani V. Jawahar
Singh by the Privy Council, there is no
jurisdiction to entertain a second
appeal on the ground of erroneous
finding of facts, however gross in
error they may seem to be. The same
view has been expressed also by the
Supreme Court. No doubt, a second
appeal lay where there was a
substantial error or defect in
procedure under Clause [c], but an
erroneous finding of fact is distinct
from an error or defect in procedure.
Accordingly, where there was no error
or defect in procedure, the finding of
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the first appellate Court upon a
question of fact had to be regarded as
final, if that Court had before it
evidence proper for its consideration
in support of the finding... The mere
fact that the High Court would have
upon documents and evidence placed
before the Court of first appeal come
to a different conclusion is no ground
for a second appeal.
and by relying upon the judgment of the Hon'ble Supreme
Court reported in Navaneethammal Vs. Arjuna Chetty, dated
06/09/1996, he would submit that this court need not
interfere into the finding of facts.
13.No doubt that the trial court as well as the
appellate court recorded a finding that the suit property
belongs to the temple/deity in view of the specific
recitals in Exs.A1 and A2. But interpretation of the
document and its legal consequences will come under the
purview of the substantial question of law and this is
the basic and fundamental principle. In the light of the
above said, now we will go to the evidentiary value of
Exs.A1 and A2.
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14.Now we will straightaway go to the judgment of
this court in M.Vedamanickam Nadar Vs. M.Sudalaikannu
Thevar (Second Appeal No.1502 of 1993, dated 29/03/2007).
As per settled proposition of law, boundary recitals will
not create any title.
15.In the written argument, the respondent/plaintiff
relied upon the judgment reported in 1998(1)LW 759. The
judgment cited by the respondent reported in Kammavar
Sangam through its Secretary R.Krishnasamy Vs. Mani
Janagarajan (1999-3-LW.727) does not support his case.
16.Here the plaintiff is duty bound to prove that
the suit property belongs to the temple or deity as the
case may be, independent of the boundary recitals
mentioned in the documents produced by him. With this in
mind, now let us go to the issue.
17.Now the case of the plaintiff is that originally
a house belongs to the temple/deity was situated. In that
house, Adyana Battar was residing on behalf of the deity.
On the west of the suit property, one Subramania Gurukkal
house was situated. Subramania Gurukkal was performing
pooja. He had two sons namely SP.Kumar and SP.Ramanathan.
They continued pooja. After the death of Subramania
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Gurukkal. On the west, the ancestors house of these two
persons are situated. So, according to the respondent,
the suit property belongs to the temple/deity and
predecessors in title of the defendant were never
performing pooja and had no right or title over the
property.
18.Stopping a moment here, now we will go to the
case of the defendant.
19.It is admitted that originally a house was
available in the suit property. But Adyana Battar was not
in occupation. Performance of pooja by Subramani Gurukkal
is admitted, so also by his sons namely SP.Kumar and
SP.Ramanathan. During Natham Survey, patta was issued in
favour of the above said SP.Kumar and SP.Ramanathan.
After demolishing the old house, SP.Kumar and
SP.Ramanathan sold the property to the defendant, on
09/08/2000. The defendant traces his title through the
above said SP.Kumar and SP.Ramanathan by way of purchase.
The defendant got title document over the property.
20.Now we will go to the plaint averments further.
There is no title document on the side of the plaintiff
even before this court. He relied upon the mortgage
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deeds, dated 07/12/1926 and 30/06/1943 executed by
Ramanatha Gurukkal and his father Abatharna Kumar in
favour of one Palaniyandia Pillai, again Ramanatha
Gurukkal in favour of one Arumugam. In the mortgage
deeds, Ramanatha Gurukkan has admitted that the suit
property belongs to the temple/deity. It was shown as
eastern boundary. So, according to the respondent, when
the predecessors in title of the defendant admits that
the suit property belongs to the temple/deity, they were
estopped from claiming title over the suit property and
selling the same to the defendant through the sale deed,
dated 09/08/2000. So, this is the sum and substance of
the claim of the plaintiff and the defendant.
21.As mentioned above, except these two certified
copies of the mortgage deeds, no other title document
much less any property registered was produced by the
plaintiff, either by summoning the relevant document from
the temple administration or from its custody.
22.It is an irony that none from the temple
administration were examined on the side of the
respondent. PW2, who is an independent witness would
admit that the temple is in the administration of
Devakottai Nagarathar. Because of the inter se dispute
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between them, they abandoned the management. He would
fairly admit that to his knowledge, a house belongs to
the temple was situated in the suit property. Because of
that, he was under the impression that the property
belongs to the temple. So, his evidence does not support
the case of the plaintiff. He even admits that he did not
see any document to show that the suit property belongs
to the temple/deity.
23.Even the plaintiff, during the course of cross
examination would admit that he has not produced any
document to show the title of the temple. Even before
this court, no document of title was produced by the
plaintiff, the respondent herein.
24.Without any proper document, the suit proceeded
on the basis of the boundary recitals in Exs.A1 and A2.
Both the trial court as well as the appellate court
failed to notice that the documents were not properly
proved as per law. As per Section 68 of the Indian
Evidence Act (Old Act), being the mortgage deed, it must
be proved by examining any one of the attesting
witnesses. Even presumption under section 90 of the
Indian Evidence Act will be available only in respect of
the original document and not the certified copies. These
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two documents are only certified copies. So, the
evidentiary value of these documents was not properly
appreciated, either by the trial court or the appellate
court. Both the courts were carried away by the boundary
recitals.
25.Even for proving the boundary recitals, as
mentioned above to show that the vendor of the defendant,
who was examined as DW2, was estopped from disputing the
boundary recitals, no proper plea was taken and issues
framed.
26.During the course of cross examination, DW2 the
vendor of the defendant would say that even before his
birth, Abatharna Gurugal died. So, naturally he would
have no knowledge about Exs.A1 and A2. So, the plea of
estoppel was also not properly brought on record by the
plaintiff.
27.As per the commissioner report and plan, it is
seen that a portion of the property was encroached and
under the occupation of the plaintiff. Similarly, the
defendant is also in occupation of a portion in Survey
No.111/22. The physical features does indicate that when
the defendant tries to put up a construction in the
property, the plaintiff filed the suit.
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28.The contention on the part of the plaintiff that
the vendor of the defendant has no title or right over
the property cannot be taken advantage by the plaintiff.
In a suit for declaration and recovery of possession, it
is the duty of the plaintiff to prove the same,
regardless of the defective title of the defendant. We
need not go into the title of the defendant to find out
whether the vendors under Ex.B2 are title holders to sell
the property. Without proper appreciation of law and
fact, the trial court as well as the appellate court
rendered a finding, which requires to be interfered.
Accordingly, it is interfered and the substantial
questions of law 2 and 3 are answered that the trial
court and the appellate committed illegality by placing
reliance on Exs.A1 and A2.
29.In view of the above said answer to the
substantial questions of law 2 and 3, the first
substantial question of law does not arise at all. So,
this court need not go into the issue whether the
plaintiff is competent to file the suit on behalf of the
temple or deity.
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30.In the result, this second appeal is allowed. The
judgment and decree passed by the trial court as
confirmed by the appellate court are set aside. The suit
filed by the respondent herein is dismissed. The parties
are directed to bear their costs throughout.
Consequently, connected Miscellaneous Petition is closed.
06/03/2025
Index:Yes/No
Internet:Yes/No
er
To,
1.The Sub Judge,
Devakottai.
2.The District Munsif,
Devakottai.
3.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ILANGOVAN, J
er
06/03/2025
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