IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.06.2011 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH O.S.A.No.34 of 2011 and M.P.No.1 of 2011 1. R.M.Constructions represented by its Managing Partner, Mr.R.M.Cyril 108,R.M. Towers, Chamiers Road, Chennai 600 018. 2. R.M.Cyril Managing Partner, R.M.Constructions, 108,R.M. Towers, Chamiers Road, Chennai 600 018. ..Appellants/2nd Respondent & 3rd Respondent/ 2ND and 3rd Defendant Vs. 1. Chillaraikadai alias Mannadi Marudhukkadaikar Chatram rep. By its Fit Person, Arulmigu Marundheeswarar Thirukoil, Thiruvanmiyur, Chennai – 600 041. 2. Bhupathi Naicker, No.50, East Mada Street, Thiruvanmiyur, Chennai – 600 041. ..Respondents/Applicant and 1st Respondent/ Plaintiff and 1st Defendant Appeal filed under Order XXXVI Rule 1 of O.S.Rules read with Clause 15 of Letters Patent against the common order and decreetal order dated 21.8.2009 made in O.A.No.305 of 2008 and A.No.2477 of 2008 in C.S.No.282 of 2008. https://hcservices.ecourts.gov.in/hcservices/ For Appellant : Mr.M.S.Krishnan, Senior counsel for M/s.Saravabhauman Associates For Respondent-1 : Mr.M.Sundar For Respondent-2 : No appearance J U D G M E N T V.PERIYA KARUPPIAH.,J This appeal is directed against the order of the learned Single Judge passed in O.A.No.305 of 2008 along with A.No.2477 of 2008 in C.S.No.282 of 2008, dated 21.08.2009. 2. The appellants are the defendants 2 and 3 in the suit filed by the first respondent as plaintiff. The second respondent is the first defendant in the suit. 3. For convenience sake, the rank of parties in the suit are maintained in this judgment. 4. The suit was filed by the plaintiff in respect of the suit property for permanent injunction restraining the defendants, their men, agents, servants, subordinate men acting under or on behalf of them, men claiming to act under or on behalf of them from interfering in any manner with the plaintiff's peaceful possession and enjoyment of the suit property i.e., Door Nos.14 and 15, East Mada Street, Thiruvanmiyur, Chennai – 41 comprising in S.No.193/7 forming part of Plaintiff Endowment property comprising in Pymash Nos. 1165, 1166 and 1167 in 140, Thiruvanmiyur Village, Chennai -41, admeasuring 31 cents of land and for costs. 5. The plaintiff has also filed an application in O.A.No.305 of 2008 seeking interim injunction restraining the respondents, their men, agents, subordinates, men acting under or on behalf of them, men claiming to act under or on behalf of them from interfering in any manner with the applicant / plaintiff 's peaceful possession and enjoyment1 of the schedule property situated at Nos. 14 and 15, East Mada Street, Thiruvanmiyur, Chennai – 41 comprised in S.No.193/7 comprising in Pymash Nos. 1165, 1166 and 1167 in 140, Thiruvanmiyur Village, Chennai -41, admeasuring 31 cents of land, pending disposal of the suit. 6. The brief facts of the case of the applicant / plaintiff as set out in the application in O.A.No.305 of 2008 is as follows:- https://hcservices.ecourts.gov.in/hcservices/ 6.(i) The applicant / plaintiff is a specific Endowment within the meaning of Section 6 (19) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, (herein after called as the 'said Act'). Income yield from the specific properties belonging to the applicant / plaintiff Endowment are dedicated for the performance of specific charity/ religious charity during Brahmmotsavam in Arulmigu Marundheeswarar Thirukkoil, Thiruvanmiyur, Chennai – 41 (herein after called as the 'said temple'. 6.(ii) The Commissioner, HR & CE Department vide order dated 03.10.1974 appointed the (ex-Officio) Executive Officer of the said Temple as Trustee of the applicant / plaintiff Endowment for a period of three years, under Section 47 of the said Act. Even after three years, the Executive Officer of the said temple continued to function and administer the applicant / plaintiff Endowment as Trustee. Thereafter, the Joint Commissioner, HR & CE Department vide order dated 02.01.2008 appointed the Executive Officer of the said Temple (ex-officio) as Fit Person of the applicant / plaintiff Endowment under the proviso to Section 47(1)(c) of the said Act. The said order is in vogue and the administration of the Plaintiff Endowment is vested in the said Fit Person. 6.(iii) The schedule mentioned property is comprised in S.No.193/7 and 140, Thiruvanmiyur Village, Chennai -41, admeasuring 31 cents and forms part of the specific endowment comprised originally in Paimash Nos.1165, 1166 and 1167 situated in Thiruvanmiyur Village. At present there are 12 tenants under the applicant / plaintiff Endowment in the said property and 5 tenantable portions are vacant. 6.(iv) The Deputy Commissioner, HR & CE Department initiated suo motu proceedings under Section 63 of the said Act in O.A.No.9 of 1961. By order dated 24.07.1963 in O.A.No.9 of 1961, the Deputy Commissioner, HR & CE Department clearly held that the properties comprised in Paimash Nos.1165, 1166 and 1167 in Thiruvanmiyur Village, Saidapet Taluk, Chenglepet District known as Chillaraikadai alias Mannadi Marundhukkadaikarkar Chatram is a specific Endowment under Section 6(19) of the said Act. An appeal was preferred in A.P.No.65 of 1963 against the above order. The Commissioner, HR & CE Department, by order dated 30.07.1964 dismissed the appeal and confirmed the order of the Deputy Commissioner. This Order has been given legal quietus and finality. 6.(v) In the meanwhile, the 1st defendant herein filed a suit in O.S.No.1184 of 1971 on the file of the II Additional District Munsif, Poonamallee, against certain individuals (mentioning them as his tenants and sub-tenants) and the applicant / plaintiff herein, for recovery of possession and injunction with regard to certain https://hcservices.ecourts.gov.in/hcservices/ portions of the plaint schedule property. The said suit was decreed. But the appeal in A.S.No.77 of 1976 on the file of Subordinate Judge's Court, Chengalpet (Originally A.S.No.126 of 1976 on the file of District Court, Chengalpet) preferred against the said order was allowed and the decree of the trial court was set aside vide judgment and decree dated 24.01.1978, which has been given complete legal quietus and finally. The said judgment is a judgment in rem and it is in vogue. In the said judgment, it has been clearly held that the plaint schedule property is a specific endowment belonging to the applicant / plaintiff Endowment for the purpose of performance of certain specific charities / religious charities (kattalai) in the said temple. 6.(vi) Similarly, the 1st defendant has also initiated certain suits against the tenants in the plaint schedule property as if he is the landlord. One such suit is O.S.No.7334 of 1998 on the file of II Assistant Judge's Court, City Civil Court, Chennai, which was decreed. Against which an appeal was preferred by tenants in A.S.No.255 of 2001 on the file of the IV Additional Judge's Court, City Civil Court, Chennai and has culminated in Second Appeal in S.A.No.2054 of 2003 before this Hon'ble Court. The Hon'ble Court by an interim order dated 19.12.2003 in CMP.No.18796 of 2003 suspended the orders of the Lower Court and this Interim Order was made absolute on 20.01.2005. 6.(vii) The 1st defendant had made attempts to interfere with the possession of the plaint schedule property in 2005, for which the temple has filed a suit for bare injunction in O.S.No.8391 of 2005 on the file of the XIII Assistant Judge's Court, City Civil Court, Chennai, and the same is pending. 6.(viii) The applicant / plaintiff Endowment is in sole and absolute possession of the plaint schedule property. The tenants under the applicant / plaintiff Endowment are in occupation of various portions of the plaint schedule property and they are paying rents to the applicant / plaintiff Endowment. The property tax is being paid by the plaintiff Endowment. The electricity connection to the plaint schedule property is in the name of the applicant / plaintiff Endowment. The Town Survey Land Register Extract clearly shows that the plaint schedule property stands in the the name of the applicant / plaintiff Endowment. 6.(ix) Now, the defendants are making constant and repeated attempts to interfere with the peaceful possession of the plaint schedule property by the applicant / plaintiff Endowment, for which a police complaint has been lodged. The defendants are attempting to and holding out threats that they would enter upon the plaint schedule property, usurp possession, demolish the superstructure and https://hcservices.ecourts.gov.in/hcservices/ start developing the same. 6.(x) Under such circumstances, the applicant Endowment has filed the application in O.A.No.305 of 2008 seeking an order of interim injunction till disposal of the suit. 7. The brief facts of the case of applicants/defendants 2 and 3 in A.No.2477 of 2008, a petition to vacate the stay order are as follows: 7.(i) It is false that the Endowment property comprised in Paimash Nos. 1165, 1166 and 1167 is presently comprised in S.No.193/7. The present system being followed by the Revenue Department for Thiruvanmiyur Village is based on Block Numbers and Town Survey Numbers. Paimash Numbers are converted into Survey Numbers. Subsequently, Survey Numbers are converted into Block Numbers and Town Survey Numbers. The property in Paimash Numbers. 1165, 1166 and 1167 over which the plaintiff is claiming did not stand in their name. Patta No.1318 bears the endorsement that the details therein have been compared with the Chitta and found to be correct. The Land Survey Register dated 16.06.1995 and 07.08.1996 issued by the Deputy Tahsildar, Tiruvannamalai gives a comparative table between Paimash Numbers and corresponding Survey Numbers with reference to Thiruvanmiyur Village. It is seen from the said Register that Paimash No. 1167 is comprised in Survey No.193/2 and Paimash Number 1165 and 1166 comprised in Survey No.193/1 and therefore, the applicants claim for injunction in respect of Survey No.193/7 cannot be sustained. The second respondent/first defendant has been in possession and enjoyment of property comprised in Survey No.193/7 for more than three decades, which is the ancestral property of late Murugesa Naicker who was the father of the second respondent. After the demise of the said Murugesa Naicker, the second respondent and his seven children are entitled to have a share in the property. As joint owners of the said property, the patta has also been granted. The urban land tax to the said property was paid by the second respondent. The second respondent mortgaged the property to one C.Ganesan under a Deed of simple mortgage dated 26.7.1993, registered with the Joint Sub Registrar, Thiruvanmiyur as Document No.3606 of 1993. After the discharge of the mortgage by the respondent dated 31.10.1999, the land in survey number 193/7 was divided into survey field numbers 3/2 and 4/2 and having municipal Door Nos.14 and 15. Subsequently, on 31.12.2002 a release deed was executed by the second respondent and his three daughters releasing their share in the said property in favour of four sons of the second respondent, viz., Babu, Sankar, Palani and Vijayakumar. Thus, the four sons of the second respondent became the absolute owner of the property and mutation was also carried out in the land register. Thereafter, the sons of the second respondent sold the property to the defendants 2 and 3. https://hcservices.ecourts.gov.in/hcservices/ 7.(ii) The suit filed before the Subordinate Judge, Chengalpattu in A.S.No.77 of 1976 pertained to an indeterminable piece of property and it relates to the minuscule portion of the present suit property. The said judgment itself is not a judgment in rem. On the other hand, the suit in O.S.No.7334/98 was decreed in favour of the second respondent and upheld by the lower appellate Court, but pending in Second Appeal before this Court, clearly shows that the real owner is the second respondent. It was also stated that a suit filed by the Temple in O.S.No.8391 of 2005 is pending before the XIII Assistant City Civil Court, Chennai is an abuse of process of law. The present suit which is for a bare injunction without a declaratory relief is bad in law. 8. The averment in the counter of the first respondent/plaintiff in A.No.2447 of 2008 are as follows: The first respondent/plaintiff denied all the allegations made in A.No.2447 of 2008. A reference to the entire A Register will show that with regard to Survey Numbers 193/1, 193/4 to 49, the entry in the appropriate Remarks column says that the manaivari/manaivaadagai register should be referred to. The manaivari/manaivaadagai register which forms part of the A-register clearly shows that the registered owner of Survey No.193/7 is the plaintiff endowment. Even according to the documents relied on by the defendants 2 and 3, Paimash Nos. 1165 and 1166 are relatable to Survey Nos. 193/1 and 193/4 to 49 and Paimash No.1167 is relatable to the entire Survey No.193/2. It is further stated that 140, Thiruvanmiyur Village is an Inam Village and the same was taken over by the Government on and from 1.10.1951 which is evident from the A-Register. Therefore, the entries in the A- Registrar are conclusive. Moreover, the first defendant is not before the Honourable Court and defendants 2 and 3, who are builders cannot be heard to make assertions regarding the purported possession and enjoyment of the first defendant. Further, there cannot be any change or transfer of any records without notice to the applicant endowment and if there had been any such subsequent change of transfer of that kind without notice to the applicant endowment, the same are non-est in law. 9. On perusal of the records produced by the plaintiff and the affidavit submitted in support of the application, the learned Single Judge had passed an order of ad-interim injunction exparte. The defendants 2 and 3 filed an application in A.No.2477 of 2008 for vacating the ad-interim injunction granted against them and both applications were taken up together by the learned Single Judge and the learned Single Judge was pleased to make absolute the interim injunction already granted and consequently, the application filed for vacating the ad-interim injunction was dismissed. https://hcservices.ecourts.gov.in/hcservices/ 10. Aggrieved against the said order, the defendants 2 and 3 (appellants) have preferred this present appeal. 11. Heard Mr.M.S.Krishnan, learned senior counsel appearing for the appellants / defendants 2 and 3 and Mr.M.Sundar, learned counsel appearing for the respondent / plaintiff. No appearance was made on behalf of the second respondent / first defendant. 12. The learned Senior Counsel appearing for the appellants would submit in his argument that the appellants are the defendants 2 and 3 before the learned Single Judge, who purchased the properties in Door Nos.14 and 15, East Mada Street, Thiruvanmiyur, Chennai – 41 comprising in S.No.193/7 Thiruvanmiyur Village, Chennai -41 from one Babu, Sankar, Palani and Vijayakumar and became the owner of the said property. He would further submit that the vendors of the defendants 2 and 3, are the four sons of the first defendant and the first defendant and his three daughters executed a release deed in respect of the said property in favour of the vendors of the defendants 2 and 3 namely, Babu, Sankar, Palani and Vijayakumar on 31.12.2002 and thereby the vendors of the defendants 2 and 3 acquired title to the said property. He would also submit that the first defendant was having patta in his name even from the year 1976 and he had also mortgaged the land comprised in S.No.193/7 to one Ganesan on 26.07.1993 and the said mortgage was subsequently discharged under a receipt dated 31.10.1999 and the same was also registered. He would further submit in his argument that the plaintiff who failed in its attempt in an earlier suit filed, in the name of Arulmighu Marudheeswarar Temple, Thiruvanmiyur, in O.S.No.8391 of 2005 on the file of the XIII Assistant City Civil Court, Chennai, which was dismissed for the default of the plaintiff, had come forward with this suit and it would be an abuse of process of law and would amount to forum shoppe. He would further submit that the plaintiff has claimed that the property was belonging to an Endowment, namely, Chillaraikadai alias Mannadi Marundhukkadaikar Chatram, which was dedicated for the celebration of 6th day Bavani festival of Arulmighu Marudheeswar Thirukkovil, Thiruvanmiyur and also for poor feeding. He would further submit that however, the plaintiff claimed that the said property in D.Nos.14 and 15 of East Mada Street, comprised in S.No.193 / 7 of Thiruvanmiyur Village was corresponding to the old Paimash Nos.1165, 1166 and 1167 of the said village, but it was not prima-facie shown that the property dedicated to the particular Endowment was correlated with the suit property. He would further submit in his argument that if really the land in S.No.193 / 7 is correlated to old Paimash Nos.1165, 1166 and 1167, the first defendant would not have been granted with patta in the year 1976. He would further submit that the vendors of the defendants 2 and 3 were in continuous possession after they got the release deed from their father - the first defendant, and their three https://hcservices.ecourts.gov.in/hcservices/ sisters in the year 2002 and before that the first defendant was in possession and enjoyment of the suit property which could be evidenced from the patta issued in his name in the year 1976 and the mortgage executed in the year 1993 and discharged in the year 1997. He would further submit that in the suit filed before the said Civil Court in O.S.No.8391 of 2005, no interim injunction was granted in favour of the plaintiff. The Chitta Extract also bear the name of the first defendant and thereafter the names of the vendors of the defendants 2 and 3 and now in the names of the defendants 2 and 3. The total extent of 31 cents in S.No.193 / 7 was not shown to have correlated with old Paimash Nos.1165, 1166 and 1167 and therefore there could not be any prima facie case for the plaintiff. He would further submit in his argument that the said property in S.No.193 / 7 of Thiruvanmiyur Village of an extent of 31 cents has been further resurveyed into Town Survey Numbers as T.S.Nos.3/2 and 4/2. The said resurveyed and subdivided property is also standing in the name of defendants 2 and 3 and therefore it is a case of mistaken identity of the property. He would further submit that the plaintiff did not establish any prima-facie case in respect of the ownership and possession of the property and the learned Single Judge was not correct in granting ad interim injunction and thereafter, the temporary injunction against the true owner of the property. He would further submit that the balance of convenience is also in favour of the defendants 2 and 3 and not in favour of granting injunction in favour of the plaintiff. He would also submit that the injunction granted against the defendants 2 and 3 is very much causing prejudice to the right of the defendants 2 and 3 and therefore, the application filed by the plaintiff for the grant of injunction ought to have been dismissed by the learned Single Judge and the application filed by the defendants 2 and 3 to vacate the injunction be ordered. However, the learned Single Judge has passed an order granting injunction in favour of the plaintiff which is contrary to law and facts of the case and therefore the appeal has to be allowed by interfering the judgment of the learned Single Judge. 13. Mr.M.Sundar, learned counsel for the first respondent / plaintiff would submit in his argument that the second respondent / first defendant did not file any appeal regarding the finding of the learned Single Judge. He would further submit that there is no dispute that the suit property is located in Door Nos.14 and 15, East Mada Street, Thiruvanmiyur Village and it is in S.No.193/7 of Thiruvanmiyur Village. He would also submit that the said property in S.No.193/7 of an extent of 31 cents and in S.No.193/2 of an extent of 1.98 acres are belonging to the plaintiff by a specific Endowment made for the purpose of celebrating the 6th day Bavani Festival and also for poor feeding during the Mahotsavam Festival of Arulmighu Marundheeswarar Temple, Thiruvanmiyur and it was dedicated long back and the said dedication was recognized by a suo-motu order passed by the HR & CE Department on 24.07.1963 and the property in three https://hcservices.ecourts.gov.in/hcservices/ Paimash Nos.1165, 1166 and 1167 were described in the said order and the Chatram abutting East Mada Street and the Garden lying behind the said Chatram were mentioned as the properties belonging to the Endowment. He would also submit that the said Endowment was a specific Endowment defined under Section 6(19) of the HR & CE Act and such dedication is a permanent one and the Endowment is always an Endowment. He would further submit that the said three Paimash Nos.1165, 1166 and 1167 were subsequently resurveyed as S.Nos.193/2 and 193/7 and the suit property was comprised in S.No.193/7 of an extent of 31 cents. He would also submit that the said Paimash Numbers were found to have been correlated with S.Nos.193/2 and 193/7 and the 'A' Register Extract would disclose the same. He would further submit in his argument that the Head Quarters Tahsildar of the said Taluk was directed by the learned Single Judge to furnish particulars regarding the correlation of Paimash Nos.1165, 1166 and 1167 with the resurveyed Survey Numbers and their extent, but the said Tahsildar did not answer to those questions, but had produced the extract of the documents which would amply prove the case of the plaintiff. He would refer to the report of the Tahsildar dated 27.08.2008 and the sketch produced in Page No.218 of the consolidated typed set of papers and submit that the S.No.193/7 was further resurveyed and assigned T.S.No.3/2, 4/2 and the S.No.193/2 was also subdivided into S.No.193/2A, 193/2B and subsequently resurveyed into T.S.Nos.4/1, 19 and 20 and therefore it could be seen that the property in S.No.193/7 is abutting the East Mada Street and the landed property which was referred to as Garden in the order passed by the HR & CE Department, is located on its back in S.No.193/2. He would further refer to the subdivisions and correlation Statement of the Town Survey produced in Page No.222 of the consolidated typed set of papers and place his reliance. He would further submit that the correlation statement enclosed with the letter of the Tahsildar dated 09.09.2008 would go to show that S.Nos.193/1 and 193/4 to 193/49, are correlated with old Paimash Nos.1165 and 1166. He would also submit that S.No.193/7 is also covered by such information, which is correlated with the said Paimash Nos.1165 and 1166 along with other Paimash Nos. He would further submit that the 'A' Register produced in Page Nos.70 and 71 would also disclose the same. He would further submit that the copy of 'A' Register produced in Page Nos.1 and 2 of the typed set of papers would go to show that S.No.193/7 of an extent of 31 cents is standing in the name of the plaintiff. Therefore, he would submit in his argument that the collusive suit filed by the first defendant without impleading the plaintiff would go to show the malafide intention of the first defendant to grab at the property from the hands of the plaintiff by creating revenue records. He would further submit that the suit filed by the first defendant against the tenants and impleading the plaintiff as one of the defendants in O.S.No.1184 of 1971 on the file of the II Additional District Munsif, Poonamallee for recovery of possession and injunction in respect of certain portions of the suit property was https://hcservices.ecourts.gov.in/hcservices/ decreed against the plaintiff and the subsequent appeal preferred by the plaintiff in A.S.No.77 of 1976 on the file of the Sub-Judge, Chengalpattu was allowed and the suit filed by the first defendant in respect of the suit property was dismissed by the judgment and decree dated 24.01.1978 and no Second Appeal was preferred against the said judgment and decree and therefore, it became final. He would further submit that the first defendant ought to have taken advantage of the decree passed in his favour in O.S.No.1184 of 1971 at the hands of II Additional District Munsif, Poonamallee, ought to have obtained patta in his name regarding the suit property in the year 1976, but the