IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16-12-2009 Coram THE HONOURABLE MR. JUSTICE B. RAJENDRAN A.S. No. 901 of 1993 1. K. Thangappa Pillai (died) 2. Thangappa Balaji (Second Appellant brought on record as legal heir of the deceased sole appellant as per order dated 15.12.2005 made in CMP No. 13596 of 2004) .. Appellants/Defendant and nil Versus 1. Arulmighu Srinivasa Devasthanam rep. by its Executive Officer and Trustee No.15, Vadhyar Konda Pillai Street Choolai, Madras – 600 112 2. M. Ethirajulu Chetty 3. Dandu Munuswamy Deenadayalan 4. Vellore Balasubramaniam 5. C.R. Ramaketi 6. Kavala Jayachander .. Respondents/Plaintiffs Appeal filed under Section 96 of the Code of Civil Procedure against the decree and judgment dated 30.07.1993 made in O.S. No. 1643 of 1992 on the file of the VII Assistant Judge, City Civil Court, Madras. For Appellants : Mr. S.V. Jayaraman, Senior Counsel for Mr.R.Muralidharan For Respondents : Mr. K. Jayaraman , Senior Counsel for Mr. G.R.S. Chander Rao JUDGMENT The defendant is the appellant herein. The sole appellant died during the pendency of this appeal and therefore, his legal heir has been brought on record as the second appellant. 2. For the sake of convenience, the parties shall be referred to as they were arrayed in the suit. 3. The suit has been filed by the plaintiffs/temple, represented by its Executive Officer and Trustee, against the defendant, who are the original tenant, for a declaration to declare that the registered sale deed dated 04.04.1985 registered as document https://hcservices.ecourts.gov.in/hcservices/ No. 527 of 1985 on the file of Sub Registrar Office, Periamet in favour of the defendant, executed by the Court in pursuance of a decree and order dated 28.05.1983 made in I.A.No. 6694 of 1981 and E.P. No.2016 of 1984 in O.S. No. 1243 of 1981 on the file of the X Assistant Judge, City Civil Court, Madras as illegal, non-est and null and void and not binding on the plaintiffs devasthanam or the Executive Officer or the Trustees and direct the defendant to deliver vacant possession of the suit property with costs. 4. The contention of the plaintiff is that the plaintiffs temple is a denomination temple belonged to Sadhu Chetty Community and it is directly administered by the Hindu Religious and Charitable Endowments Department. The Executive Officer of the temple was appointed by the Commissioner of H.R. & C.E. Department, being the Administrator of the temple. Under a scheme of management of the temple framed by the Madras High Court in C.S. No. 533 of 1928, orders were passed by the High Court in WP No. 15564 of 1989 appointing the plaintiffs 2 to 6 as Trustees of the temple and they took charge as Trustees on 22.01.1991. The temple was previously under the management of the Executive Officers and pursuant to the order of the High Court, Madras, the plaintiffs 2 to 6 were appointed as Trustees. 5. According to the plaintiffs, they came to know only recently that the previous Executive Officer had illegally inducted lessees to enable them to use Section 9 of the City Tenants Protection Act and were party to the illegal sales of the properties of the temple, which are otherwise prohibited under Section 34 of the H.R. & C.E. Act. The main contention of the plaintiffs is that the sale of the temple property was apparently engineered by the Executive Officer during their reign. The plaintiffs have come to know of this treachery and filed the suit to set aside the sale as well as the decrees and orders for the sale of the properties as non-est in law and it should be statutorily declared as ab initio null and void since the sale itself is void under Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Further, the Executive Officer has no authority to sue, without the sanction from the Commissioner of HR & CE Department. The fact of such sale brought about by the Executive Officer using the Court as an Agent, has not been communicated to the Commissiner of HR & CE Department to enable the Commissioner to intervene in the matter and file an appeal in time. In such circumstances, filing of the present suit has become necessary to protect, safeguard, preserve and maintain the temple property for the purpose of the Trust. 6. According to the plaintiffs, the previous Executive Officer originally filed O.S.No.1242 of 1981 against the defendant for ejectment in which the defendant filed I.A.No. 6694 of 1981 for the purpose of purchasing the temple land as described in the Schedule of the petition under Section 9 of the City Tenant Protection Act. The said application and the suit was not contested by the Executive Officer and orders were passed exparte permitting to sell the temple property to the defendant herein. The court has also appointed an advocate commissioner, who has valued the property for a lowest value and at throw away prices without regard to the market value or the guide line value. Based on the value fixed by the advocate https://hcservices.ecourts.gov.in/hcservices/ commissioner, without sanction of the Commissioner of HR & CE Department, orders were passed exparte and the property was sold to the defendant herein. According to the plaintiff, such a sale is in violation of Section 34 of the HR & CE Act. It was contended by the plaintiffs that the procedure laid down under the Act has not been strictly followed. In the absence of compliance of the statutory requirements before passing an order, the order passed by the Court is one without jurisdiction and therefore the order of the court has to be declared as void. Further, the absolute alienation of the temple property could not be justified by proof of necessity for the preservation of the Endowment or institution. Hence, the plaintiffs pray that the sale in favour of the defendant has to be declared as null and void. 7. The defendant filed written statement stating that he bcame a tenant way back in the year 1947, even before the coming into force of the Hindu Religious and Charitable Endowments Act. There have been several trustees and several Executive Officers appointed by the temple from time to time and therefore, the allegation that he was inducted as a lessee in violation of Section 34 of HR & CE Act is not sustainable. It was further denied that the Executive Officer maneuvered to file a suit for ejectment of those illegally inducted lessees and enabled them to use Section 9 of the City Tenant Protections Act. According to the defendant, there cannot be any violation of Section 34 of the HR & CE Act as he was originally inducted as a lessee for a period of less than five yearss. For the pleading relating to treachery, he specifically pleaded that such a plea is not maintainable as no source of information was given in the plaint. It was further contended that some of the trustees have been living in that area and therefore, they ought to have known about the treachery, if really, it was committed. Therefore, the plea of treachery projected by the plaintiffs is baseless. He specifically denied the averment that the Executive Officer used the Court as an Agent and that the Executive Officer had not communicated to the Commissioner of HR & CE Department regarding the proceedings pending in the Court as he did not know the exact procedure to be followed by the Executive Officer. There had been several attempts to coerce him to collect large sums of money by the erstwhile officers and therefore it cannot be contended that there was collusion between himself and the officers concerned. It was further contended that since there was no prayer sought for to cancel the decree and orders in question, to which the plaintiffs are parties, the relief claimed by the plaintiffs cannot be granted. As there was a valid decree passed under Section 9 of the City Tenants Protection Act, without seeking to cancel the same, the present suit is not maintainable. Lastly it was contended that he has filed O.S. No. 469 of 1992 and obtained an interim injunction and without disclosing the same, the present suit had been filed. 8. On the basis of the above pleadings, both the plaintiffs and defendant have let in oral and documentary evidence. The Plaintiffs have examined six witnesses on their side as PWs 1 to 6 and marked Exs. A1 to A50. The defendant examined himself as DW1 and one Indiran as DW2, besides marked Exs.B1 to B33. The court below has summoned the original records from the Court relating to the sale of the property in favour of the defendant, which were marked as Exs. C1 to C3. https://hcservices.ecourts.gov.in/hcservices/ 9. On consideration of the material evidence available on record, the Court below came to the conclusion that the sale in favour of the defendant, through the Court, is illegal, invalid, non- est in the eye of law and therefore decreed the suit filed by the plaintiffs. Aggrieved by the decree and judgment, the present appeal has been filed by the defendant. 10. The points for consideration in this appeal, as submitted by the counsel for both sides, is (i) Whether the sale deed executed by the Court, as per the orders in application under the provisions of City Tenants Protection Act, is valid? (ii) Whether the plaintiffs/temple, without specifically pleading the question of fraud, can seek to set aside the sale, even though no admissions were made in the evidence? (iii) Whether the property, which is sold to the defendant, is the property of the temple and categorised as ex-commercial, if so, whether the sale is not valid? 11. Mr. S.V. Jayaraman, learned senior counsel appearing for the defendant/appellant vehemently argued that in the pleading in the plaint, no where it was alleged that fraud has been committed to get the temple property. The involvement of the defendant in committing any such fraud has not been specifically pleaded. When there is no specific plea of fraud, even if there is any truncated admission, either in the chief or cross-examination, such evidence cannot be looked into at all for the simple reason that the principle of 'no pleading no evidence' would come in. Further, when the plaintiffs have also not pleaded that the property is not a saleable property or ex-commercial, the question could not be argued at this point of time. If really this point had been raised in the plaint, the defendant would have an opportunity to defend the same and let in evidence. When it is not pleaded, such a question need not be considered by the Court at this stage. 12. He would further contend that even if fraud is not pleaded or even if fraud is taken into consideration, such fraud, in respect of a particular act, could have been specifically and certainly pleaded in the plaint and contended that such an act is in violation of Section 34 of the HR & CE Act. A mere passing remark that there was a sale brought forth by the Executive Officer using the Court as an agent by itself would not amount to a plea that fraud was committed in respect of a property, which cannot be sold. Furthermore, Section 9 of City Tenants Protection Act empowers a person to seek for sale of the property if he is a tenant in respect of the vacant site. Merely because the Executive Officer did not participate in the Court proceedings and allowed the matter to remain exparte, that by itself will not amount to a plea that there was a collusion between the Executive Officer and the defendant herein, thereby fraud was committed to acquire the temple property. It was further contended that the allegation that in respect of the property, which was conveyed by the Court, another door number namely Door No.7 has been included which amounts to a fraud or illegal means is not acceptable in view of the fact that the sale deed clearly gives the four boundaries and what was given in sale is within the https://hcservices.ecourts.gov.in/hcservices/ four boundaries given in the sale deed and therefore also the question of wrong inclusion of property, which is not in existence or it is a ex-commercial land, cannot be argued especially when there was no pleading to that effect. It was also not pleaded that the property is within the temple premises and hence it becomes unalienable. Therefore, the evidence let in by the plaintiffs, which are not in accordance with their plea, cannot be a basis for granting a decree and prayed for setting aside the decree and judgment of the Court below. 13. The learned senior counsel for the defendant/appellant relied on the decision of a Division Bench of this Court reported in (K. Kanakarathnam vs. A. Perumal and another) AIR 1994 Madras 247 to say that in the absence of pleading, evidence, if any, produced by the parties need not be considered by the Court. 14. The learned senior counsel for the defendant/appellant also relied on the decision rendered in (Afsar Shaikh and another vs. Soleman Bibi and others) AIR 1976 SC 163 for the proposition that undue influence, fraud or misrepresentation have to be pleaded and mere general allegation without indicating the specific ground cannot be taken into consideration. 15. The learned senior counsel for the defendant/appellant further relied on the decision reported in (Varanasaya Sanskrit Vishwavidyalaya and another vs. Dr.Rajkishore Tripathi and another) AIR 1977 SC 615 and contended that the allegation of collusion implying some action of fraud is not enough to state in general term that there was collusion without any particulars. 16. Contra, the learned senior counsel appearing for the plaintiffs/ respondents submitted that a fraud was committed by the defendant in collusion with the then Executive Officer to grab the temple property. The said property cannot be sold since it was categorised as ex-commercial and therefore the sale in favour of the defendant is invalid. The argument of the defendant that the claim of the plaintiffs is hit by the principles of 'no plea no evidence' does not arise in this case as there was a definite pleading made in the plaint. The question of Section 17 of Indian Evidence Act does not arise in this case as Section 17 contemplates that when an admission leads to an inference as any fact in issue or relevant fact, then it need not be proved at all and merely because the specific contention has not been raised in the pleading, it will not disentitle the plaintiffs to claim the benefit of setting aside the sale. Further, since the plaintiffs are appointed as trustees, subsequently by the Court, only after assuming the office, the plaintiffs came to know the execution of sale in favour of the defendant on the basis of an exparte order passed by the Court. Therefore, the plaintiffs have made investigations into the details and come forward with the present suit. It was further pointed out that in the earlier suit for ejectment, the plaint mentioned door number is No.6, Old No.32/A, Maddox Street, Choolai, Chennai, whereas https://hcservices.ecourts.gov.in/hcservices/ in the application seeking for sale of the property filed by the defendant under Section 9 of the City Tenants Protection Act, the property involved was door No.6 and 7, Maddox Street, Choolai, which is also marked as Exs. C1 to C3 before the court below. Even in the draft sale deed, after the exparte order, by which sale was to be made, it denote only the door No. 6, whereas, in the actual sale deed, which is now under challenge, not only door No.6 is mentioned, but door No.7 is also included which consists of large extent of 4152 sq.ft., of area in the Madras city. Therefore, the main allegation of the defendant that four boundaries mentioned in the sale deed would include the door No.7, which was also the subject matter of the sale deed, at this point of time, is only an innovative theorey which was made only for the purpose of bringing an extra area without even informing the Court. That is the reason why the plaintiffs have pleaded deceit played on the Court itself. When the Court has to actually convey only door No.6, in the actual sale deed door No.7 also included, it would only indicate that fraud has been played and the Court was made to act as an agent for the defendant. 17. The learned senior counsel for the plaintiffs/respondents further contended that in a previous suit filed by the very same tenant, that too after purchase of the property, in the plaint in O.S.No. 469 of 1992, he himself admits that the property is situate within the compound wall of the temple and the branches of tree (arasamaram) protruding inside his property for which he filed the said suit for injunction to prohibit the temple from cutting the branches of the tree. Even in the evidence in the suit, he has categorically admitted that the property in question is within the compound wall of the temple. When such admissions are made, knowing fully well that the property, which is a part of the temple, which is an inalienable property and classified as ex-commercial, it is a technical plea, legal plea, even if it is not pleaded specifically such a legal plea can be raised in the appeal also. In this context, the learned senior counsel for the plaintiffs/respondents relied on the decision of the Division Bench of this Court reported in (Palani Velayutham vs. T.G. Lavamoorthy) 2002 (5) CTC 601 for the proposition that question of law need not be pleaded, mere fact that question of law was not raised in pleadings cannot be taken as proper guidance to shut out litigant from pressing into service such a question which would tilt matters and on appreciation of which real justice would effectively be rendered. 18. The learned senior counsel for the respondents/plaintiffs also relied on the decision of the Honourable Supreme Court reported in (S.P. Chengalvaraya Naidu (dead) by LRs vs. Jagannath (dead) by LRs and others) 1994 1 Law Weekly 21 and submitted that when a fraud on the Court is committed, the evidence adduced therein was a nullity and fraud avoids all judicial acts, ecclesiastical or temporal. Any decree or order obtained from Court by playing fraud has to be treated as a nullity by every Court, whether superior or inferior. 19. The learned senior counsel for the plaintiffs/respondents would also specifically contended that no doubt specific words of 'fraud' has not been pleaded, but the word 'treachery' was used and pleaded in the plaint, which is also equivalent to the definition https://hcservices.ecourts.gov.in/hcservices/ 'fraud'. Even the Court below framed issue No.2 that 'whether the sale deeds dated 04.04.1985 and 28.05.1983 executed by the Court in favour of the defendant are illegal and not binding on the plaintiffs and consequently whether the plaintiffs are entitled for a decree for declaration'. Therefore, the judgment and decree passed by the court below is legal, valid and interference of this Court is not warranted. 20. On the above submission of the counsel for both sides, on careful consideration of the pleadings, evidence and documents produced by either side, first it has to be decided whether the sale deed executed by the court in favour of the defendant, based on an exparte order, under Section 9 of the City Tenants Protection Act, can be challenged by the successful Trustees or Executive Officers of the temple on the ground that the sale has been effected by playing fraud on the Court. In this context, the pleadings in the plaint are vital. In the plaint, para Nos. 4 and 5 are relevant and they extracted as follows:- "4. The plaintiffs herein have come to know that the previous Executive Officer inducted lesses in violation of Section 34 of the T.N. H.R.C.E. Act 1959 and manoeuvered to file the suits for ejectment of those illegally inducted lessees to enable them to use Section 9 of the City Tenants Protection Act and have given a veneer of legality to the sales of the properties, otherwise prohibited by Section 34 of H.R.C.E. Act. The sale of the temple property was apparently engineered by the executive officers during their reign. The plaintiffs have come to know of this treacher as well as decrees and orders for the sale of properties as non est in law and should be statutorily declared abinitio void on the ground (a) the lease itself is void under Section 34 of Tamil Nadu H.R.C.E. Act, 1955 (b) The Executive Officer who had no authority to sue without sanction from the Commissioner, H.R.C.E. Department, as per provisions of H.R.C.E. Act (c) The fact of such sale brought about by the Executive Officer using Court as an agent, has not been communicated to the Commissioner of H.R.C.E. Department, to enable the Commissioner to intervene in the matter and file an appeal in time. Therefore, the suit to set aside the illegal sale of the temple property is the only remedy available to the plaintiffs to protect, safeguard, preserve and maintain the temple property for the purpose of the Trust. Otherwise the Temple itself will be lost for ever. 5. The Plaintiffs state that the plaintiff's Thirukoil by its previous Executive Officer filed O.S.No.1242 of 1981 against the defendant herein for ejectment and the defendant filed I.A. No. 6694 of 1981 for the purpose of purchasing the temple land as described in the https://hcservices.ecourts.gov.in/hcservices/ Schedule given hereunder under Section 9 of the City Tenants Protection Act. The said Application was not contested by the said Executive Officer. Orders were passed for the sale of the Temple Property and the Advocate Commissioner was appointed who had valued the property for a low value and at throw away prices without regard to the market vlaue or the guideline value of the properties situated in the locality. All the orders were passed exparte. The sanction of Commissioner of H.R.C.E was not obtained and the registered sale of the said property were effected by the Court and by concerned Executive Officer without a valid order or permission from the Commissioner of HR & CE Department, as required under Section 34 of H.R.C.E. Act. 21. In the written statement filed by the defendant, in Para No.12 and 21, it was stated as follows:- 12. The further allegation in the said paragraph 4 of the plaint that they have come to know of this treachery as well as decree and orders for the sale of properties as non-est in law and should be statutorily declared abinitio void is not maintainable and the plaintiffs are hereby called upon to declare the source, their information and the time at which such informations had been received by them. 21. The relief itself is to cancel the registered sale deed and the registered sale deed had been executed in pursuance of the decrees and orders of this Hon'ble Court and there is no prayer to cancel the decrees and orders in question to which the plaintiffs are the parties and there are no allegations therefor. As stated earlier thee is no relief that is claimed. 22. The learned senior counsel for the defendant/appellant specifically argued that no where in the plaint, the word fraud has been pleaded or used. The specific act of fraud alleged to have been committed by the defendant has also not been pleaded. As far as the argument of the learned senior counsel for the defendant/appellant that the word 'fraud' has not been pleaded or utilised, on careful consideration of the pleadings, it is seen that the plaintiffs have used the word 'treachery'. The meaning given in the Cambridge Oxford and Black Dictionary for the word treachery has been stated as under:- Cheat;- Act fraudulently, practice deception, play unfairly, deprive of by deceit, defraud, deceit, trick. Treacher:- a traitor or fraud