1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.02.2011 CORAM : THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE MR.JUSTICE R.SUBBIAH C.M.A.(MD) No.160 of 2011 Sankaranarayana Swami 11th day Aadi Thapasu Mandagapadi Utsavam Fund now known as Kuttalammal Religious and Charitable Trust having its Registered office at Agasthiar East Street, Ambasamudram, Tirunelveli District, through sole trustee Sri.A.V.Rm.V.Sankarayana Mudaliar, Son of A.V.Rm.Velayudha Mudaliar, No.125, Thilagar Puram Main Road, Ambasamudram,Ambasamudram Taluk, Tirunelveli District. ... Appellant/Plaintiff Vs. 1.Shifa Housing (P) Ltd., having its registered office at 82,Kailasapuram Middle Street, Tirunelveli Junction, through its Managing Director, M.K.M.Mohammed Shafi 2.M.K.M.Mohamed Shafi 2.Mrs.M.Aysha Dowladh ... Respondents/Defendants Appeal filed under Section 104 read with Order 43 Rule 1(r) CPC against the fair and decreetal order, dated 22.10.2010 made in I.A.No.256 of 2010 in O.S.No.117 of 2010 on the file of the First Additional District Judge, (FAC), Tirunelveli. For Appellant : Mr.T.R.Rajagopal, Sr.Counsel for Mrs.N.Krishnaveni For Respondents 1-3 : Mr.Parthasarathy, Sr.Counsel for Mr.G.R.Swaminathan JUDGMENT R.SUBBIAH,J. This civil miscellaneous appeal is directed against the fair and decreetal order, dated 22.10.2010 made in I.A.No.256 of 2010 in O.S.No.117 of 2010 on the file of the First Additional District Judge, (FAC), Tirunelveli, whereby the court below dismissed the application filed by the appellant herein for temporary injunction restraining the second defendant and their men from changing or altering the character of the suit schedule property till the disposal of the suit. https://hcservices.ecourts.gov.in/hcservices/ 2 2.Pending this appeal, the appellant has also taken out three applications in M.P.(MD)No.1 of 2011 for receiving additional documents in the appeal; in M.P.(MD)No.2 of 2011 for interim injunction restraining the respondents, their men, agents, servants, derivatives etc., not to change or alter the character of the petition schedule properties till the disposal of the appeal and in M.P.(MD)No.3 of 2011 for interim injunction restraining the respondents from alienating the suit property which is the subject matter in O.S.No117/2010 on the file of the I Additional District Judge, Tirunelveli pending disposal of the appeal. 3.Brief facts which are necessary for the disposal of the appeal are as follows: The appellant is the religious charitable trust founded by one Kuttalammal by a registered trust deed dated 26.02.1975. The main object of the trust is to celebrate and conduct the 11th day Aadi Thapasu festival of Sri Sankaranarayana Swami Sametha Gomathi Ammal Sankaranarayana Swami Devasthanam, Sankarankoil. Though the trust was founded by Kuttalammal, subsequently, she had appointed her son A.V.Rm.V.Sankaranarayana Mudaliar as first trustee of the trust by deed dated 07.09.1989. After his appointment, he changed the nomenclature of the trust from Sri Sankaranarayana Swami 11th day Aadi Thabasu Mandagapadi Utavam Fund' to “Kuttlammal Religious and Charitable Trust”. The said trust had purchased 15.35 and 12.29 acres of land in S.Nos.9 and 11 of Kongathanparai village, Palayamkottai by four different sale deeds dated 11.01.1985, 09.10.1985, 18.03.1985 and 17.02.1986. The suit property was a vacant site and the said property was purchased with an object of running an educational institution for women students. Whileso, in the year 1990, the Government had taken over the said land purchased by the trust under Land Reforms (fixation of ceiling on land) Act by order dated 12.02.1990. Hence, the appellant trust filed an application seeking exemption from the purview of land recovery Act. Subsequently, writ petition was also filed challenging the order dated 12.02.1990 and the Government has passed an order in favour of the trust and upheld the decision of the trust to run the educational institution in the above said land. The trust has also taken necessary steps to change the patta in the name of the trust. That being the position, the first respondent herein by claiming a right over the suit property measuring to an extent of 15.44 acres as if they have purchased the same from third parties started to convert the said lands into house sites. Hence, the Executive Officer of the temple filed a suit in O.S.No.566/2007, in which suit the appellant herein had already been arrayed as first defendant along with the other respondents as other defendants. The respondents having realised their mistake approached the trust by letter dated 30.05.2007 for settlement stating that they are also prepared to pay a sum of RS.1,05,98,000/- to the trust. For that purpose, a memorandum of understanding was also entered into between the appellant and the respondents since under Section 34 of the Act approval from the Commissioner of HR & CE is required https://hcservices.ecourts.gov.in/hcservices/ 3 for sale of trust property and the memorandum of compromise was filed before the Commissioner, HR & CE and the same is still pending. 4.In the meantime, the respondents are continuously converting the lands into house-sites and selling the same to third parties. Hence, a suit in O.S.No.117/2010 was filed for declaration to declare that the suit properties belong to appellant trust and also for recovery of possession of the same from the respondents and also for mandatory injunction to demolish all the super structures put up in the said properties by the respondents. Pending the suit, the appellant has also filed an application for temporary interim injunction restraining the respondents not to change or alter the character of the suit schedule properties till the disposal of the suit. 5.The prayer of the appellant was resisted by the respondents contending that the respondents after the purchase of the property demarcated the same into housing plots and almost sold 125 plots. Moreover, 100 houses were constructed and construction was going on from the year 2007. Though the respondents are plotting out the lands for the past four years, the appellant who is aware of the same had chosen to file a suit only in the year 2010 and at this juncture if injunction is granted, the respondents would be put to irreparable loss and hardship. Moreover, the appellant has not chosen to add the purchasers as party to the suit. Therefore, the suit is bad for non joinder of necessary parties. The respondents entered into compromise with the appellant only with respect to prevent any further plotting out of the lands. The order also stands in the name of respondents and that there is no merit in the prayer of the appellant. 6.The Court below on consideration of the submissions made on either side and also the documents marked on either side dismissed the prayer of the appellant, seeking interim injunction on a finding that the suit schedule properties are in actual possession and enjoyment of the respondents and other persons and the respondents alone have made out better title and proved enjoyment and possession over the schedule properties from the time of their predecessors in title. Aggrieved over the same, the present appeal has been filed along with the miscellaneous applications for the relief set out earlier. 7.Learned senior counsel appearing for the appellant submitted that the main finding of the trial court for rejecting the prayer of the appellant by the Court below is that the appellant has not proved their title. The learned Senior counsel further submitted that though various sale deeds were filed along with the plaint it was omitted to be marked. Hence, the trial court based on the documents marked by the respondents has come to a conclusion that the documents as marked on the side of the respondents show that the respondents alone have made out their possession and enjoyment of the suit schedule property. In this regard, the learned senior counsel for the appellant https://hcservices.ecourts.gov.in/hcservices/ 4 submitted that had the documents filed by the appellant been marked, the same would have been considered by the trial court and in that case, the Court would have granted the interim prayer. Further, the learned senior counsel for the appellant by inviting the attention of this Court to each sale deed made an elaborate argument that the appellant's predecessors have derived title in the suit property. Learned senior counsel for the appellant also submitted that since the respondents were fully aware that they did not have better title, they offered to pay a sum of Rs.1,05,98,000/- but this fact was not properly considered by the court below. Moreover, the proceedings initiated by the Government under the Land Reform Act also proves the title of the appellant. Hence, by accepting the additional document to be marked along with the application, the interim prayer has to be granted, otherwise, the appellant would be put to irreparable loss and hardship. 8.Per contra, learned senior counsel for the respondents submitted that in order to prove the title on the side of the respondents documents were marked from the year 1915 and the respondents went for conciliation only as an alternative solution instead of protracting litigation, it does not mean the respondents had accepted the title of the appellant. Moreover, the respondents have not made any valid reason for not marking certain sale deeds. The Government has also passed an order in favour of the appellant on 12.09.1990 under the Land Reform Act only with a condition to run educational institution in the subject land. Though the order was passed as early as on 12.02.1990, till date the appellant has not taken necessary steps to run the educational institution in the subject land. Above all, the respondents were plotting the lands and selling the same to the several persons right from the year 2006 and some of the purchasers have also constructed houses. Therefore, at this juncture granting of any interim order would greatly affect the respondents. Learned senior counsel for the respondents further submitted that the suit ought to have been valued under Section 25-A of the Court Fees Act whereas under Section 28-A insufficient stamps have been affixed. Hence, the plaint itself is liable to be rejected under Order 7 Rule 11. Since insufficient stamps have been affixed, no interim order could be granted. Therefore, the appeal is liable to be dismissed. 9.We have given anxious thought to the submissions made by the learned senior counsels on either side and perused the materials available on record. 10.The main grievance of the appellant is that had the sale deeds dated 11.01.1985, 09.11.1985, 18.03.1985 and 17.02.1985 and other documents been marked before the lower Court they might have had a chance of establishing a prima facie case for granting interim injunction. Therefore, by accepting the said documents, learned senior counsel for the appellant sought for granting proper relief. https://hcservices.ecourts.gov.in/hcservices/ 5 11.Though elaborate argument was made on either side, with regard to their title over the property, in our opinion, in the interest of justice without going into the merits and demerits of the submissions made on either side, the order of the lower Court dated 22.10.2010 could be set aside and consequently, the matter could be remitted back to the Court below for fresh enquiry by allowing the appellant to mark the said documents in the enquiry. Accordingly, M.P.No.1 of 2011 in C.M.A.No.160 of 2011 is allowed. Consequently the order dated 22.10.2010 of the court below is set aside. The matter is remitted back to the court below for fresh enquiry. The court below is directed to permit the appellant to mark the additional documents filed in this appeal as documents during the enquiry in I.A.No.256 of 2010 in O.S.No.117 of 2010 and decide the I.A. afresh after hearing both sides on merits. If the appellant intends to mark some other documents, the appellant is at liberty to make an application before the trial Court and it is for the trial Court to consider the said request and pass orders in accordance with law. The entire exercise shall be completed within a period of two months from the date of receipt of a copy of this order. 12.The Civil Miscellaneous Appeal is disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(C.O) /True Copy/ Sub-Assistant Registrar To The First Additional District Judge, (FAC), Tirunelveli Copy to:- The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai(For Taking necessary Action) +One CC to M/s.N.Krishnaveni, Advocate, Sr.No9701 sms rl/4c – 3.3.2011 Pre-delivery judgment in C.M.A.(MD) No.160 of 2011 23.02.2011 https://hcservices.ecourts.gov.in/hcservices/