IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 18.02.2010 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY Second Appeal No.610 of 2003 Adivaram Choultry Thirukazhukundram Reresented By its Fit person/Executive Officer .. Appellant/Respondent/ Plaintiff Vs Kumaresan .. Respondent/Appellant/ Defendant SECOND APPEAL filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 30.09.2002 made in A.S.No.17 of 2000 on the file of the Additional District Court cum Chief Judicial Magistrate, Chingleput reversing the Judgment and Decree dated 17.08.2000 passed in O.S.No.6 of 1993 on the file of the Sub Court, Chingleput. For Appellant : Mr.N.Sathyamoorthy For Respondent : Mr.R.Natarajan J U D G M E N T The above Second Appeal arises against the judgment and decree in A.S.No.17 of 2000 on the file of Additional District Court cum Chief Judicial Magistrate, Chengalpattu reversing the Judgment and Decree in O.S.No.6 of 1993 on the file of Sub Court, Chengalpattu. 2. The plaintiff in the suit is the appellant in the above second appeal and the respondent is the defendant in the suit. 3. The plaintiff filed the suit in O.S.No.6 of 1993 on the file of Additional Sub Court, Chengalpattu for delivery of possession of the suit property after demolishing the superstructure put up by the defendant and for future damages for use and occupation. https://hcservices.ecourts.gov.in/hcservices/ 4. The brief case of the plaintiff in the suit is as follows:- (i) According to the plaintiff, Adivaram Choultry has been brought within the purview of H.R.&C.E. Act under G.O.Ms.No.989 Revenue dated 23.3.1965. The said G.O. has been challenged by the erstwhile Trustee T.S.Padmanabha Mudaliar and two others in the civil suit in O.S.No.136 of 1975 on the file of Sub Court, Chengalpattu. The said suit was dismissed on 27.4.1978. After the dismissal of the suit, Assistant Commissioner, H.R.&C.E., Kancheepuram appointed the then Executive Officer of Arulmigu Vedagireeswarar Temple as fit person. A copy of the order was addressed to the said T.S.Padmanabha Mudaliar and others. (ii) According to the plaintiff, as against the judgment and decree in O.S.No.136 of 1975, the said T.S.Padmanabha Mudaliar preferred first appeal in A.S.No.1085 of 1978 on the file of High Court, Madras and the same was dismissed confirming the judgment and decree of the trial court. (iii) According to the plaintiff, after the dismissal of the first appeal, the said T.S.Padmanabha Mudaliar, preferred appeal in L.P.A.No.81 of 1984 and the same was dismissed on 2.9.1988 confirming the judgment in A.S.No.1085 of 1978. Hence, the judgment and decree in O.S.No.136 of 1975 has become final. (iv) According to the plaintiff, the Assistant Commissioner, H.R.&C.E., Kancheepruam has directed the fit person cum Executive Officer of Arulmigu Vedagireeswarar Temple, Thirukazhukundram to take charge of the Choultry immediately. The plaintiff took charge of the suit property including the property in respect of major portion and he leased out to various tenants. (v) According to the plaintiff, subsequently, in order to cheat the plaintiff, the said T.S.Padmanabha Mudaliar created a sham and nominal deed in favour of one A.Srinivasan under sale deed dated 01.10.1991. In turn, the said A.Srinivasn, crated another sham and nominal sale deed in favour of the defendant on 23.3.1992. (vi) According to the plaintiff, the sale deed in favour of the defendant is sham and nominal and the same is not binding on the plaintiff. The vendor of the defendant and his predecessor-in-title have no manner of right, title or interest over the suit property. Any transaction subsequent to the Government Order, is not binding on the plaintiff. The defendant having obtained sham and nominal sale deed put up illegal construction in the suit property. Therefore, the plaintiff filed the suit. https://hcservices.ecourts.gov.in/hcservices/ 5. The brief case of the defendant is as follows: (i) According to the defendant, there is no material allegation in the plaint to the effect that the suit property was also the subject matter of G.O.Ms.No.989 Revenue dated 23.3.1965. The plaintiff has no locus standi to file the suit. The suit in O.S.No.136 of 1975 was filed only against the Government Order which ousted the authority of the Trustee over the Adivaram Choultry. The erstwhile trustees filed the suit only to preserve their right of trusteeship in the administration of Adivaram Choultry. The suit was not filed with reference to the present subject matter. Unless the plaintiff produces some material evidence to show that the suit property belonged to Adivaram Choultry, the plaintiff cannot have any cause of action against the defendant. (ii) According to the defendant, L.P.A.NO.81 of 1984, which is said to have become final and conclusive, is only in respect of the dispute with regard to the right in the administration of the Adivaram Choultry between the H.R.& C.E. Department and the Ex- trustees. The plaintiff has neither taken charge of the Adivaram Choultry building nor the subject matter of the suit, which is in no way connected with the administration of the Adivaram Choultry. (iii) According to the defendant, the suit has no connection whatsoever with the Adivaram Choultry and there is no document to show that it belong to the said Choultry. The suit filed by the plaintiff without a prayer for declaration of its title is not maintainable, when the defendant asserts title in himself exclusively and when the defendant's predecessors have admittedly exercised their right of ownership by selling the property to various persons. There is no document to show that the Founder had ever bequeathed the suit property and the adjacent property for any charitable purpose. The documents filed by the plaintiff will show that only a 'Kattalai' was created by one Thirumanam Ramalinga Mudaliar for the performance of certain charities by mere donation of cash for the said purpose so that the interest accrued therefrom can be made use of for performance of the charities intended by him. The documents filed by the plaintiff will clearly shows that no immovable property was dedicated or bequeathed by the Founder. (iv) According to the defendant, the suit property form part of Grama Natham S.No.29/27-A1 in Tirukazhukundram Village. The property originally belonged to the ancestor of one T.S.Padmanabha Mudaliar. The total extent was 56,718 sq.ft. T.S.Padmanabha Mudaliar was allotted half share on the western side measuring 28,359 sq.ft and the eastern half measuring 28,539 sq.ft., was allotted to the two sons of Vedadridasan i.e., T.V. Sulochana Mudaliar and Ramasamy Mudaliar. Padmanaba Mudaliar along with his sons were enjoying his share of property and similarly the other branch, i.e., the sons of Vedadridasan, were enjoying the other half, by virtue of an oral https://hcservices.ecourts.gov.in/hcservices/ family partition, which was later reduced into writing by a deed of affirmation dated 4.3.1988. (v) According to the defendant, Padmanabha Mudaliar sold a portion of his property to one Parvathi Ammal under registered sale deed dated 1.10.1991 and on the same day, he sold the remaining portion of the property to A.Srinivasan. The said Srinivasan sold the suit property in favour of the defendant. The remaining part is still under the possession and enjoyment of the said Srinivasan. Similarly the sons of Vedadridasan, through their power agent, have sold their property to one Kannimuthu Naicker and Vedadri Naicker on 28.9.1992 under two sale deeds. Therefore, the entire property measuring 58,718 sq.ft. is owned and enjoyed by the above said persons besides the defendant. The defendant and his predecessors prescribed title by adverse possession. The defendant has put up a Kalyana Mandapam at huge cost after getting the plan approved by the Tirukalikundram Town Panchayat. He has also laid basement foundation for shopping complex and he has obtained necessary approval. Therefore, the defendant prayed for dismissal of the suit. 6. Before the trial court, on the side the plaintiff, P.W.1 was examined and 34 documents, Ex.A-1 to Ex.A-34 were marked and on the side of the defendants two witnesses were examined and 19 documents, Ex.B-1 to Ex.B-19 were marked. 7. The trial court after taking into consideration, the oral and documentary evidences of both the parties, decreed the suit. 8. Aggrieved over the judgment and decree of the trial court, the defendant preferred appeal in A.S.No.17 of 2000 on the file of Additional District Court cum Chief Judicial Magistrate, Chengalpattu and the lower appellate court, after taking into consideration the materials available on record, reversed the judgment and decree of the trial court and allowed the appeal. 9. Aggrieved over the judgment and decree of the lower appellate court, the plaintiff has filed the above second appeal. 10. Heard Mr.N.Sathyamoorthy, learned counsel appearing for the appellant and Mr.R.Natarajan, learned counsel for the respondent. 11. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:- " 1.Whether the appellate court was correct in holding that the plaintiff is not entitled to rely upon the material documents marked in the earlier proceedings as Exs. A3 and A4 in the suit? https://hcservices.ecourts.gov.in/hcservices/ 2. Whether the appellate court was right in holding that the suit for possession is not maintainable without the relief of declaration? 3. Whether the plaintiff is not protected under section 109 of the H.R.& C.E. Act as to the plea taken by the respondent on adverse possession? " 12. On a careful consideration of the materials available on record and the submissions made by both the counsels, it could be seen that the suit property is in Grama Natham S.No.29/27-A1. According to the appellant, the suit property belong to Adivaram Choultry. Under Ex.A-1, G.O.Ms.No.989 Revenue Department dated 23.3.1965, the Government of Tamil Nadu brought the Adivaram Choultry established by one Thirumana Ramalinga Mudaliar within the purview of the H.R.&C.E. Act. Challenging the said G.O., the erstwhile trustees T.S.Padmanabhan and two others filed the suit in O.S.No.136 of 1975 on the file of Sub Court Chengalpattu and the same was dismissed on 27.4.1978. Subsequently, an appeal in A.S.No.1085 of 1978 was filed before this court and the same was dismissed on 12.3.1979. Against which, the said T.S.Padmanabhan filed appeal in L.P.A.No.81 of 1984 before this court and it was also dismissed on 2.9.1988. 13. The respondent's case was that neither the G.O., nor the previous litigation between the Ex-trustees and H.R.& C.E. Department had any reference to the subject matter of the present suit and therefore, the Government Order or the judgment in O.S.No.136 of 1975 cannot in any way help or support the appellant to establish its claim or title over the suit property. 14. On perusal of Ex.A-1 Government Order dated 23.3.1965 and certified copy of the judgment in O.S.No.136 of 1997 on the file of Sub Court, Chengalpattu, it could be seen that the suit property has not been shown in the schedule thereunder. While so, the burden is heavily on the appellant/plaintiff to prove that the suit property belongs to the appellant/plaintiff. The appellant failed to produce the letter dated 1.8.1804 alleged to have been written by one Ramalinga Mudaliar to the Governor of Madras. Even as per the said letter, the said Ramalinga Mudaliar, sought permission from the Governor of Madras to deposit 5000 star pagodas, which is equivalent to Rs.17,500/- in the Treasury of the Company permanently intending to create a charity for the maintenance of the Choultries and other religious institutions existing and to those to be created by him thereafter. 15. The appellant failed to establish that suit property was purchased from the funds provided by late Ramalinga Mudaliar. There is absolutely nothing on record to show that the suit property https://hcservices.ecourts.gov.in/hcservices/ was purchased from the funds provided by late Ramalinga Mudaliar. 16. The learned counsel for the appellant relied upon Ex.A- 4, plaint plan in O.S.No.47 of 1965, which suit was filed by T.S.Padmanabha Mudaliar against the H.R. & C.E. Department. Learned counsel for the appellant submitted that the plan shows the properties belonging to Adivaram Choultry and the suit property situate on the backyard mentioned in the said plan. The learned counsel also contended that Ex.A-4 plan was filed by T.S.Padmanabha Mudaliar along with plaint in O.S.No.47 of 1965, therefore, it can be construed as an admitted document. The said document was marked through P.W.1. 17. On perusal of Ex.B-16 written statement filed by H.R.&C.E. Department in O.S.No.47 of 1965 , it could be seen that they have disputed the said plan which has been marked as Ex.A-4 in the present suit. That being the case, the appellant should have examined the author of the document to prove the same. It is not in dispute that the plaintiff in O.S.No.47 of 1965, was available at the time of trial. In spite of that the appellant/plaintiff did not examine the author of Ex.A-4 plan. Mere marking of a document is not sufficient and the document has to be proved by examining the parties to the document. In the case on hand, I find that Ex.A-4 document was not proved by the appellant/plaintiff. In such circumstances, the said document cannot be relied upon. Further more, the appellant having disputed Ex.A-4 plan in their written statement marked as Ex.B-16, they cannot now turn around and take advantage of the said document. 18. That apart, in Ex.A-28, which is a letter from the Assistant Commissioner with a copy of register letter dated 9.1.1978, it is clearly mentioned therein that Thirumanam Sri Ramalinga Mudaliar's Kattalai did not possess any immovable property. The said document was marked on the side of the appellant and the document is against their own case. Further, the appellant has not stated anything in the plaint about the suit in O.S.NO.47 of 1965. The Tahsildar was examined as D.W.2 and in his evidence, he deposed that the suit property is a Grama Natham. It is also seen from the documents that the respondent/defendant also obtained patta for the suit property. 19. Under Ex.B-2 sale deed dated 1.10.1991, T.S.Padmanabha Mudaliar and his sons executed a sale deed in favour of A.Srinivasan in respect of the suit property and other properties. Under Ex.B-1 sale deed dated 23.3.1992, the said A.Srinivasan sold the suit property to the respondent/defendant. The respondent claimed title over the suit property by virtue of Ex.B-1 sale deed. He also denied https://hcservices.ecourts.gov.in/hcservices/ the title of the appellant/plaintiff. In such circumstances, the appellant/plaintiff ought to have filed the suit for declaration and also to set aside Ex.B-2 sale deed dated 1.10.1991. 20. The learned counsel for the appellant relied upon the following judgments, in support of his submissions: (i) 1977(3) SCC 540 ( V.Subramaniam v. The Returning Officer and others)wherein, the Apex court held as follows: "The onus of proving that on the date fixed for scrutiny of nominations the first appellant was less than 30 years of age was on the election-petitioners. But as a result of the election-petitioner proving the various admissions made by the first appellant, the onus had shifted to the first appellant to prove that he was over 30 years. A party's admission under Sections 17-21 of the Evidence Act is substantive evidence proprio vigore and if it is clearly and unequivocally made, is the best evidence against the party making it, and though not conclusive, is enough to shift the onus on the maker. The election- petitioners in the instant case not only relied upon the admissions made by the first appellant but discharged the onus which lay on them by bringing on record overwhelming documentary evidence of a cogent and convincing character. Under the circumstances, the High Court was right in setting aside the election of the first appellant." (ii) 2000 7 SCC 120 ( Uttam Singh Duggal & Co. Ltd. v. United Bank of India and others) wherein, the Apex court held that the admissions are of many kinds and may be actual, as when they are contained in pleadings or in answer to interrogatories, or implied and when inferences are made from the pleadings which have not been traversed. 21. Learned counsel for the appellant contended that since Ex.A-4 plan was filed by T.S.Padmanabha Mudaliar against the appellant, it should be construed as an admitted document. As already stated, the appellant in their Ex.B-16 written statement in O.S.No.47 of 1965 have specifically disputed the correctness of Ex.A-4 plan. Ex.A-4 was marked through P.W.1. The appellant has not examined the author of the document, namely T.S.Padmanabha Mudaliar, who was very much available at the time of trial. In such circumstances, the said document cannot be construed as an admitted document. As already stated, the appellant/plaintiff failed to prove Ex.A-4 document by examining the author of the document. In these circumstances, the judgments relied upon by the learned counsel for the appellant is not applicable to the case on hand. https://hcservices.ecourts.gov.in/hcservices/ 22. The learned counsel for the respondent relied upon the following judgments, in support of his submissions: (i) 2009(2) LW 546 ( Anathla Sdhakar v. P.Buchi Reedy (dead) by LRs and others)wherein, the Apex court held as follows: "11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. (ii) 2006(4) CC 805 ( B.Suresh Chand v. State of Tamil Nadu) wherein, the Full Bench of this court held as follows: "29. A reading of the above provisions show that the party must plead all martial facts on which he means to rely at the trial. If any one of the material fact is omitted, the statement of claim is bad and it would mean no pleading and no cause of auction for the suit. If material facts are not pleaded, a Court cannot permit evidence to be led. In Udhav singh v. Madhav Rao Scindia, 1977(1) SCC 511, the Supreme Court has defined the expression "material facts" in the following words: "All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts" 30. The distinction between "material facts" and "particulars" cannot be overlooked. Material facts are primary and basic facts which must be pleaded by the party in support of the case set up by him, either to establish his cause of action or defence. Since the object and purpose is to enable the opposite party to know the case he has to meet, in absence of pleadings a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit. Particulars, on the other hand, are the details of the case. They amplify, refine and embellish material facts. They give the finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative." 23. From the above judgments, it is clear that when the respondent/defendant has disputed the title of the appellant/plaintiff , its title is under a cloud. In such a circumstance, the appellant/plaintiff will have to sue for declaration of title and for consequential relief. But, the https://hcservices.ecourts.gov.in/hcservices/ appellant/plaintiff has filed the suit only for recovery of possession for future damages for use and occupation. Apart from that the appellant/plaintiff also omitted the material facts to establish the cause of action. 24. In these circumstances, I find no ground much less substantial question of law to interfere with the judgment and decree of the lower appellant court. The above second appeal is liable to be dismissed. Accordingly, the above Second Appeal is dismissed. However, there shall be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. rj To 1.The Additional District Judge cum Chief Judicial Magistrate, Chingleput. 2.The Additional Subordinate Judge, Chingleput. 3. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr.N.Sathiamoorthi, Advocate Sr 11139 + 2 ccs to Mr.R.Natarajan, Advocate, Sr 10675 Order in S.A. No.610 of 2003 BVN (CO) RH (5.3.10) https://hcservices.ecourts.gov.in/hcservices/