IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 15-10-2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Second Appeal No.1620 of 1995 D.Ramarathinam .. Appellant /Respondent/ Plaintiff Versus 1.Chittaranjan 2.Dharmaiyan .. Respondents/Appellants/ Defendants PRAYER: Appeal against the judgment and decree, dated 11.8.1995, made in A.S.No.60 of 1994, on the file of the Sub-Court, Nagapattinam, reversing the judgment and decree, dated 23.9.1992, made in O.S.No.8 of 1992, on the file of the District Munsif Court, Tiruvarur. For Appellant : Mr.B.Ramamoorthy For Respondents : Mr.J.Nandha Gopal J U D G E M E N T This second appeal has been filed against the judgment and decree, dated 11.8.1995, made in A.S.No.60 of 1994, on the file of the Sub Court, Nagapattinam, reversing the judgment and decree, dated 23.9.1992, made in O.S.No.8 of 1992, on the file of the District Munsif Court, Tiruvarur. 2. The plaintiff in the suit, in O.S.No.8 of 1992 is the appellant in the present second appeal. The defendants in the said suit are the respondents herein. The suit, in O.S.No.8 of 1992, had been filed by the plaintiff praying for the relief of permanent injunction, restraining the defendants, their men and agents from interfering with the peaceful possession of the plaintiff, in respect of the suit property. 3. The plaintiff had stated that he had purchased the suit property, along with a tiled and a thatched house, bearing Door Nos.48 and 49 in Pulavanallur, under the Nagapattinam Registration District, from one Soundara Raja Pillai and all its appurtenances, with the “Saswatha Paguthi right” over the site, on 13.7.1981, by way https://hcservices.ecourts.gov.in/hcservices/ of a registered sale deed. The land is owned by Arulmighu Dharmaraja and Draupathi Amman Temple. The plaintiff had executed a paguthi deed, on 27.7.81, in favour of the then trustee of the temple. From the date of the purchase, the plaintiff has been in possession and enjoyment of the suit property. Thereafter, the plaintiff’s name had been entered in the relevant records, for the payment of the property tax. 4. Initially, the suit property was in Ward No.1, which had been later changed as Ward No.2. Before the panchayat elections were held in the year, 1986, the door numbers in the suit property were given as 1/48 and 1/49. However, after the said elections they were renumbered as 2/48 and 2/49. The building, which had existed at the time of purchase of the property, had become dilapidated and it had been destroyed during the recent rains. 5. The plaintiff’s father was running a tailoring shop in the said building. On 30.12.1991, the defendants had tried to forcibly enter into the suit property and they had also attempted to cut the trees therein. The plaintiff, along with his father, had prevented the attempt made by the defendants. In such circumstances, the plaintiff had preferred the suit, in O.S.No.8 of 1992, on the file of the District Munsif Court, Tiruvarur. 6. In the written statement filed on behalf of the defendant it has been stated that the property is owned by Arulmighu Dharmaraja and Draupathi Amman Temple. The defendants' father was the hereditary trustee of the said temple. After the death of the defendants’ father the elder son, Narayanamy Udayar, has been functioning as the trustee and he was administering the temple. About 10 years back when the private temples were brought under the administration of the Hindu Religious and Charitable Endowments Act, 1959, one Renganathan, Ex- Karnam had been appointed as the fit person. After some time the defendants' father had initiated certain legal proceedings, based on which he became the hereditary trustee. 7. After his death the defendants’ elder brother, Narayanasamy Udayar, had become the trustee. One Soundara Raja Pillai, who was the temple priest, was using the old tiled house owned by the temple. The plaintiff could not have purchased the occupancy rights, as mentioned in the plaint, since the said Soundara Raja Pillai, who was only a priest of the temple, had only a right to live in the house and he had no other rights. The sale deed, dated 13.7.1981, executed in favour of the plaintiff, cannot be accepted. 8. By an order, dated 25.3.1981, in O.A.No.11 of 1980, the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, had appointed the defendants’ father as the hereditary trustee. On 9.4.1981, the then fit person, Renganathan, had handed over the administration of the temple to the defendants’ father, in https://hcservices.ecourts.gov.in/hcservices/ writing. As mentioned in the plaint, Renganathan, was not the fit person, as on 27.7.1981 and therefore, the claim of the plaintiff that he had given paguthi rights to the plaintiff cannot be accepted. The plaintiff, with the ulterior motive of grabbing the temple property, had concocted the documents, in connivance with Soundara Raja Pillai and Renganathan, who had no right in the property. 9. Since the house in the suit property had become dilapidated the defendants’ father was not interested, either in reconstructing the roof or in paying the property tax. By making use of the said circumstances, the plaintiff has been making a false claim stating that he had been paying the property tax. Further, the averment in the plaint that there was a change in the door numbers and in the ward number cannot be accepted. 10. The plaintiff’s father was not running a taliloring shop in the suit property. It is also false to state that the building in the suit property had been destroyed due to the recent rains. In fact, for the past ten years, the suit property has been lying, as a vacant site, without any fence. The defendants’ family used to cut the Kattukaruvel trees in the suit property. The sale proceeds of the trees were being used for the administration of the temple. 11. During the month of Margazhi of the previous year the defendants’ brother, Narayanasamy Udayar, had cut the Kattukaruvel trees and sold it to one Sivaprakasa Mudaliar. As such, the plaintiffs claim that he is in possession and enjoyment of the suit property and that the defendants had attempted to enter the suit property, forcibly, on 30.12.1991, is false. The plaintiff has no right in the suit property. The suit property is in the possession and the enjoyment of the hereditary trustee of the temple, namely, Narayansamy Udayar. Since the plaintiff had filed the suit, based on false statements, the suit is liable to be dismissed. 12. Based on the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration: "1) Whether the plaintiff is entitled to the relief of permanent injunction against the defendants in respect of the suit property? 2) What other relief the plaintiff is entitled to?" 13. It had been contended before the trial Court that the plaintiff is in possession and enjoyment of the suit property, after he had purchased the same from Soundara Raja Pillai. The plaintiff had also stated that there was a tiled house and a thatched house in the suit property and there was a tailoring shop run by the plaintiff’s father. The building which was in a dilapidated state had been badly damaged, during the recent rains. Thereafter, the plaintiff’s father could not carry on with the running of the https://hcservices.ecourts.gov.in/hcservices/ tailoring shop. While so, the defendants had made an attempt to forcibly enter the suit property, on 30.12.1991, and they had tried to cut the trees therein. However, the defendants had prevented the attempts made by the plaintiff. Since the defendants were likely to make further attempts in the future, the plaintiff had filed the suit, praying for the relief of permanent injunction. 14. It had been contended, on the behalf of the defendants, before the trial Court that the suit property is owned by Arulmighu Dharmaraja and Draupathi Amman temple, which had been endowed by the ancestors of the defendants and they were the hereditary trustees of the temple. At present defendants' brother, Narayanasamy Udayar, is the trustee. The temple was owning the suit property. Even in the year, 1981, the building in the said property belonging to the temple had got damaged and Kattukaruvel trees had grown therein. The defendants’ brother, as the trustee of the temple, had cut the trees and had used the sale proceeds for the administration of the temple. The plaintiff, by using the circumstances, had filed the suit to grab the suit property. 15. The registered sale deed, dated 13.7.1981, through which the petitioner had purchased the suit property, had been marked as Ex.A- 1. It has been admitted by both the parties that the land belongs to Arulmighu Dharamaraja and Draupathi Amman Temple. However, Soundara Raja Pillai had claimed possessory rights in respect of the said land, stating that the houses had been constructed by his ancestors. It has been mentioned in Annexure-I of the sale deed that the house in the said land is 50 years old. After the plaintiff had purchased the property, the property tax records were changed in his name and he has been paying the property tax. Exs.A-4 to A-9 had been filed to prove the payment of the property tax, in respect of the suit property, by the plaintiff. 16. The plaintiff had contended that there was a tiled house and a thatched house in the suit property. The door numbers were 1/48 and 1/49 in Ward No.1. After the panchayat elections in the year, 1986, it was changed as Ward No.2 and the door numbers had been changed as 2/48 and 2/49. It was further contended, on behalf of the plaintiff, that documents marked as Exs.A-4 to A-9 had been marked to substantiate the claim of the plaintiff. Even though the defendants had contended that the Door Nos.1/48, 1/49, 2/48 and 2/49 did not relate to the suit property, such a contention could not be proved by the defendants, either by oral or by documentary evidence. It has been stated in the sale deed executed in favour of the plaintiff, marked as Ex.A-1, that the plaintiff has possessory rights, in respect of the suit property. The said right of the plaintiff has been confirmed and accepted by the document, dated 27.7.1981, marked as Ex.A-2, executed by the then fit person of the temple, namely, Renganathan. https://hcservices.ecourts.gov.in/hcservices/ 17. It had been contended, on behalf of the defendants, that Soundara Raja Pillai, who was a priest in the temple had been allowed to occupy the buildings in the suit property. However, he had not been given any possessory rights and that the contention that the buildings in the suit property had been constructed by his ancestors is also incorrect. Therefore, Soundara Raja Pillai had no right to sell the house to the plaintiff. Further, Ex.A-2, executed by Renganathan, who was not the fit person of the temple, at the relevant time, cannot be said to be valid. 18. It had also been stated that, originally, Arulmighu Dharmaraja and Draupathi Amman Temple, was a private temple and it had been, subsequently, taken over by the Government. Thereafter, the defendants' father had taken legal steps for appointing him as the hereditary trustee. Hence, he was appointed as a hereditary trustee, as per the orders of the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, dated 25.3.1981. As such, when the said order had been passed, Renganathan was the fit person of the temple and therefore, he should have handed over the charge to the newly appointed trustee. 19. According to the defendants their father had been appointed as the hereditary trustee, by the order, dated 25.3.1981, and on 9.4.1981, the trustee had taken charge from the said Renganathan, by way of a letter, dated 9.4.1981, marked as Ex.B-3. However, the trial Court had found that the paper used for writing the letter, marked as Ex.B-3, did not seem to be 10 years old. Therefore, the trial Court had come to the conclusion that it was a fabricated document. 20. It was further noted that the first defendant had been examined as D.W.1. The trustee of Arulmighu Dharmaraja and Draupathi Amman Temple, namely, Narayanasamy, had been examined as D.W.2. Cheran, the former panchayat board President was examined as D.W.3 and Muniyandi was examined as D.W.4, to identify the suit property. The document, dated 15.12.1906, had been marked as Ex.B-1, to show that the property had been endowed for the purpose of pooja, neivediyam, festival etc. The defendants' father, Palaniappa Udayar, had been appointed as a trustee, under Ex.B-2. Even though it was contended, in the written statement, that the trustee had taken charge on 9.4.1981, D.W.1 had stated that only after receiving the order, marked as Ex.B-2, his father had taken charge. 21. As per the endorsement in Ex.B-2 the said order had been given to the defendants' father, only on 13.8.1981. Therefore, the trial Court had found that there was a doubt as to whether the defendants' father could have taken charge, on 9.4.1981, as alleged. It had also found that it would be the responsibility of the defendants to clear the said doubt. No document had been filed to prove that Narayanasamy Udayar was the trustee of the temple. https://hcservices.ecourts.gov.in/hcservices/ 22. The trial Court had further come to the conclusion that even though the defendants' father had claimed that the trustee had taken charge, on 9.4.1981, they had failed to produce the necessary records before the Court to substantiate their claim. Accordingly, the trial Court had come to the conclusion that the plaintiff had purchased the superstructure in the land in question, by way of a document, dated 27.7.1981, marked as Ex.A-2, even before the defendants' father had taken charge, as the trustee of the temple. Thereafter, the paguthi rights had been changed in the name of the plaintiff, by the temple, on 27.7.1981. Thereafter, the plaintiff had paid the lease amount of Rs.25 for fasli 1391, on the same day. The receipt for the said payment, made by the plaintiff, on 27.7.1981, had been marked as Ex.A-3. 23. It had been contended, on behalf of the defendants that the buildings in the suit property were constructed by their ancestors and that they belong to the temple. However, it had been accepted by the defendants that the property tax for the said buildings had been paid by the said Soundara Raja Pillai. If the buildings were owned by the temple, the receipts for the payment of the tax should have been filed on behalf of the defendants. No such receipts have been filed by the defendants. Even though D.W.2 had stated that he had no document for the said houses and that they had not been taxed he had also stated that the property tax might have been levied, in respect of the buildings, but his father had not been paying the property tax for the said houses. Therefore, the trial Court had come to the conclusion that the buildings in the suit property had not been constructed by the temple and the buildings were constructed by the ancestors of Soundara Rajan, who possessed the rights relating to the land. When D.W.3 who was the panchayat president of the area concerned, from 1986 to 1991, had been examined on behalf of the defendants, he had stated that there were houses in the suit property before 15 years and that at the time of the filing of the suit there were only trees and the same were being cut and used by Narayanasamy Udayar. However, during the cross examination he had deposed that he did not know as to whether the plaintiff was enjoying the suit property before the dispute. However, it had been seen that D.W.3 had issued the receipts, dated 15.3.1987, for the payment of property tax for Door Nos.2/48 and 2/49. Thus, the trial Court had come to the conclusion that D.W.3, who was a relative of the defendants, had given evidence in favour of the defendants, in order to support their case. 24. Similarly, D.W.4, who had been examined on behalf of the defendants, had deposed that he had worked as a cooly under Narayanasamy Udayar. However, he had stated that he does not know as to when the building had been destroyed. On the other hand, the trial Court had found that the plaintiff's father had been examined as P.W.1 and he had given evidence, along with the necessary records, to prove that the plaintiff had purchased the suit property from Soundar https://hcservices.ecourts.gov.in/hcservices/ Rajan and that the buildings in the said property had been damaged during the recent rains. 25. The trial Court had also found that the property tax for the buildings had not been paid after the year, 1987. On the other hand the trial Court had found that the plaintiff had adduced oral and documentary evidence to prove that he was in possession of the suit property. It had also been seen that there were kattukaruvel trees in the suit property and that they were being cut and sold by Narayanasamy Udayar. Since the plaintiff was found to be in possession and enjoyment of the suit property, the trial Court had held that the defendants had no right to cut the kattukaruvel trees in the said property. Even though the defendants had denied the allegation that they had tried to enter, forcibly, into the suit property, on 30.12.1999 ,and that they had tried to cut the trees therein, they had contended that their brother, as the trustee of the temple, had got the right to cut the trees. In such circumstances, the trial Court had held that it would be proper to grant the relief of permanent injunction, against the defendants, restraining them from entering the suit property, which was in the possession and enjoyment of the plaintiff. Accordingly, the trial Court had decreed the suit, as prayed for. 26. Aggrieved by the judgment and decree of the trial Court, made in O.S.No.8 of 1992, the defendants in the suit had filed an appeal, on the file of the Sub Court, Nagapattinam, in A.S.No.60 of 1994. The first Appellate Court had framed the following points for consideration. "1) Whether the respondent is entitled to the relief of permanent injunction, as prayed for in the suit? 2) What other reliefs the respondent is entitled to?" 27. In view of the contentions raised on behalf of the appellants, as well as the respondent in the first appeal, the first Appellate Court had found that the parties to the suit had not disputed the fact that the suit property was owned by Arulmighu Dharmaraja Draupathi Amman Temple. The first Appellate Court had found that Ex.B-1 had been filed to prove that the suit property belonged to the temple. Ex.B-2 is the order passed in O.A.No.11 of 1980 filed before the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, challenging the appointment of a fit person. As per the said order, Palaniappa Udayar the father of the defendants had been appointed as the hereditary trustee. 28. The father of the plaintiff had been examined on behalf of the plaintiff and Exs.A-1 to A-9 had been marked by him. Ex.A-1 is the sale deed through which Soundara Raja Pillai had conveyed the suit property in favour of the plaintiff . In the said sale deed it https://hcservices.ecourts.gov.in/hcservices/ had been mentioned that the land was owned by Arulmighu Dharmaraja Draupathi Amman Temple and that he had possessory rights, in respect of the house, which had been constructed by his ancestors in the said land and that he has been in enjoyment of the same. From the said statement it would be clear that the suit property was owned by the temple. Ex.A-2, dated 27.7.1981, is a "paguthi manai pathiram" executed by the fit person, in favour of the respondent. However, the said document is not a registered document. Therefore, it had been contended that the said document should not be considered as valid since the fit person had handed over charge to the father of the defendants, on 9.4.1981. Thereafter, the fit person would not have any right to execute the document marked as Ex.A-2. 29. The contention raised on behalf of the plaintiff that Ex.B-3 was a concocted document was also accepted by the trial Court. The first Appellate Court had seen from Ex.B-2 that the father of the defendants had been appointed as the hereditary trustee of the temple, on 25.3.1981, and that it was possible that he had taken charge, on 9.4.1981. Therefore, the plaintiff would be prevented from contending that Ex.B-3, dated 9.4.1981, is a concocted document. 30. Exs.A-3 to A-9 are the receipts for the payment of property tax for the suit property. Ex.A-2 and Ex.A-3 were having the same date. After executing Ex.B-2, the fit person had no authority to execute Ex.A-2 and Ex.A-3. Therefore, when the fit person had executed Ex.B-3 it should be taken to be true. When examining P.W.1 it had been seen that he had said that the suit property had been purchased after ascertaining from Renganathan, the trustee of the temple, as to whether the possessory rights would be transferred. In such circumstances, Exs.A-2 and A-3 cannot be accepted. 31. Since the suit property was owned by the temple, the priest of the temple had no right in the suit property, which he could have sold to the plaintiff. From Ex.B-1 it had been seen that the priest of the temple, who had been given the house in the suit property, for occupation, could not have sold it to a third person. Therefore, Ex.A-1 sale deed, said to have been made in favour of the plaintiff, would not be binding on the defendants. 32. The first Appellate Court, in order to verify as to whether the defendants were in possession and enjoyment of the suit property, at the time of the filing of the suit, had appointed an Advocate Commissioner, during the pendency of the appeal. The Advocate Commissioner had filed a report, marked as Ex.C-1 and a sketch marked as Ex.C-2. The First Appellate Court had seen from the report that the mud walls in the suit property had crumbled down and there were some broken mud walls. It had also been found that some Karuvai trees had been cut and some othia trees were in the suit property. https://hcservices.ecourts.gov.in/hcservices/ 33. From the deposition of P.W.1 it is seen that P.W.1 had stated that he does not know when Renganathan had taken over the administration of the temple. Further, he had stated that at present there was no house in the suit property and that there was only a vacant land. Therefore, the first Appellate Court had not accepted the averments of the plaintiff that he was in possession and enjoyment of the suit property. Accordingly, the first Appellate Court had allowed the appeal filed by the defendants in the suit by setting aside the judgment and decree of the trial Court, made in O.S.No.8 of 1992. 34. Aggrieved by the judgment and decree of the first Appellate Court, dated 11.8.1995, made in A.S.No.60 of 1994, the plaintiff in the suit, in O.S.No.8 of 1992, who was the respondent in the first appeal, had preferred the present second appeal, before this Court. The second appeal had been admitted on the following substantial questions of law: "1. Whether the first Appellate Court was right and justified in reversing the judgment and decree of the trial Court based on the report of the Advocate Commissioner appointed in the appeal? 2. Whether the First Appellate Court was right and justified in law in reversing the judgment and decree of the trial Court, without dislodging the reasons recorded by the trial Court in decreeing the suit." 35. The learned counsel appearing on behalf of the plaintiff/appellants had submitted that the judgment and decree of the lower Appellate Court is against law, weight of evidence and the probabilities of the case. He had further stated that the lower appellate Court had failed to see that the deceased appellant in the present second