Case: A.Shanmugam Vs. Ariya K.R.K.M.N.P.Sangam Tr.Pres.Etc

The property in question belonged to one, Muthu Naicker, who dedicated the suit land for construction of a Dharamshala. In the southern part of India, it is called asis commonly known as ‘a place where boarding facilities are provided either free of cost or at a nominalIn the instant case, a Dharamshala was to be constructed for the benefit of the Ariya Kshatriya community. Thefather, Appadurai Pillai was engaged as a Watchman on a monthly salary by the respondent-Society to look after the Dharamshala and in that capacity lived in the premises with his family including the appellant.5. According to the appellant, in the year 1994, the respondent-Society claiming to be the owner of the suit property tried to dispossess the appellant by force necessitating the appellant to file a suit in O.S. No.1143 of 1994 on the file of the Second Additional District Munsif, Tiruvannamalai praying for issuance of permanent injunction against the respondent-Society. The said suit was, however, dismissed. As against that, the appellant preferred an appeal in A.S. No.94 of 2001 on the file of the Additional District Judge, Tiruvannamalai and the said appeal was allowed and consequently, thesuit was decreed. The respondent-Society preferred a Second Appeal in S.A. No.1973 of 2002 before the High Court of Madras against the said judgment of the Additional District Judge.6. The respondent-Society during the pendency of Second Appeal filed a suit in O.S. No.239 of 2003 before the Additional Subordinate Judge, Tiruvannamalai praying for declaration of title and recovery of possession of the suit property comprised in T.S. No.1646/1 of Tiruvannamalai Town having an extent of 70 feet east to west and 30 feet north to south bearing Old Door No.116 and New Door No.65. The said suit was decreed as prayed for. Against that, the appellant preferred an appeal in A.S. No.19 of 2008 on the file of the Additional District Judge, Tiruvannamalai and the decision of the trial court was reversed in Appeal resulting in the dismissal of the suit filed by the respondent-Society. Aggrieved against the appeal being allowed and the suit being dismissed, the respondent- Society preferred a Second Appeal in S.A. No.869 of 2009 before the High Court of Madras. The learned Judge of the Madras High Court heard both the aforesaid Second Appeals together and by a common judgment set aside the well-considered judgments of the First Appellate Court. Aggrieved by the said common impugned judgment, the appellant has preferred these appeals by way of special leave.7. It may be pertinent to mention that the appellant filed Original Suit No.1143 of 1994 and also filed the following documents :-1. 20.11.1899 Certified copy of the registered agreement between Krishnasamy Raju and others2. Certified copy of the bye-law of the plaintiff Sangam(respondent-Society before us)3. Certified copy of Memorandum of Association of plaintiff-Sangam (respondent-Society before us)4. Certified copy of Registration Certificate5. Certified copy of field Map Book Plan6. Certified copy of Town Survey Field Register7. Certified copy of Demand Register Extent8. Certified copy of Tax receipts (9)9. Certified copy of Indemnity Card by Munusamy10. Certified copy of Ration Card of Munusamy11. Certified copy of account of plaintiff Sangam (respondent-Society before us)12. Certified copy of photocopy of Silesasanam13. 14.5.29 Copy of application by the President of plaintiff-Sangam to Municipal Chairman14. 24.2.32 Copy of the application by the President of plaintiff-Sangam to Municipal Chairman15. 17.8.2001 Certified copy of judgment in O.S. No. 1143/94 of District Munsif Court, Tiruvannamalai16. 31.5.2002 Certified copy of judgment in A.S. No.94/2001 of Additional District Judge, Tiruvannamalai17. 2000-02 House Tax Receipt18. 2001-02 House Tax Receipt19. 2002-03 House Tax Receipt20. Xerox copy of the Minutes Book pages 13 to 19.8. The trial court on the basis of the pleadings has framed the following issues:-1. Whether the plaintiff has the right to possession and enjoyment of the suit property?2. Whether the plaintiff and his father have obtained right of enjoyment through adverse enjoyment?3. As per the averments on theside, is it true that thefather in the capacity of the watchman of the suit property has been in enjoyment of the suit property?4. Whether the plaintiff is entitled to a relief of permanent injunction as prayed for by him?5. Other relief?9. In Suit No. 239 of 2003 filed by the respondent-Society against the appellant seeking a decree for possession, the following issues were framed:-1. Whether the plaintiff Association is competent to file this case?2. Whether the plaint property belongs to theclub?3. Is it right that thefather Appadurai Pillai in the capacity of a Watchman, has been maintaining the suit property?4. When there is a Second Appeal pending before the High Court in S.A. No.1923 of 2002 against the judgment and decree of the Court of the District Munsif in O.S. No. 1143 of 1994 is sustainable.5. Whether the defendant has acquired the right of possession in the plaint property due to adverse possession?6. Whether this case has been procedurally evaluated for the court fee and jurisdiction?7. Is the Court competent to try this Court?8. To what other relief is the plaintiff entitled to?10. The trial court in Suit No.1143 of 1994 has held that the appellant was in possession of the suit property in the capacity of a Watchman.Regarding Issue No. 3, the trial court has observed as… …As per the July 1949 register Ex.D5 it is established that thefather has been employed as a watchman in the association. Further, it has already been decided that the suit property belongs to the defendants Association. Further it has also been decided that apart from that thefather has only been a watchman to the suit property. Only source of thefather had been a watchman, he was permitted to stay in a portion in the suit property only because of that he had not instituted a case for the total extent 110 x 56 feet but only for the extent of 70 x 30 feet. He admits that the remaining portion is in the possession of the association. It is true that only for this reason the defendants association has permitted that plaintiff and his family members to reside in the suit property. It is evident that only in the status of a watchman that thefather has been occupying a portion in the suit survey number. This issue is decided accordingly.Regarding Issue No. 2 of adverse possession, the trial court found that thefather was employed by the respondent-Society as a Watchman on a petty monthly salary and in that capacity he was allowed to stay in the suit property. The appellant did not acquire the suit property by adverse possession and the issue was rightly decided against the appellant by the trial court.12. Regarding issue No. 4, the trial court found that thefather was residing in the suit premises as a Watchman and after his death the appellant was also allowed to continue to stay in the suit property as a Watchman.13. The trial court relied on a judgment of the Madras High Court reported in Alagi Alamelu Achi v. Ponniah Mudaliar AIR 1962 Madras 149. The Court held that a person in wrongful possession is not entitled to be protected against lawful owner by an order of injunction.14. The trial court also came to a definite conclusion that the appellant has concealed certain vital facts and has not approached the Court with clean hands and consequently, he is not entitled to the grant of discretionary relief of injunction.15. The First Appellate Court reversed the judgment of the trial court and held that the appellant was entitled to the relief of injunction because of his long possession of the suit property. The First Appellate Court also set aside the decree passed by the trial court in O.S. No.239 of 2003.16. The Suit No. 239 was decreed against the appellant. Aggrieved by this, the appellant preferred First Appeal before the District Judge which was allowed on 3rd April, 2009. Aggrieved by this judgment, the respondent-Society filed a Second Appeal before the High Court which was allowed. The High Court heard both the appeals filed by the respondent-Society and the same were allowed by a common judgment dated 20th April, 2011.17. The High Court by a detailed reasoning, set aside the judgment of the First Appellate Court and held that the First Appellate Court was not justified in reversing the judgments passed by the trial court in both the abovementioned suits, O.S. No.1143 of 1994 and O.S. No.239 of 2003. The appellant, aggrieved by the said judgment, has preferred these two appeals. We propose to decide both these appeals by this common

Reasoning:
19. In our considered view, a well-reasoned judgment and a decree passed by the trial court ought not to have been reversed by the First Appellate Court. It is reiterated that thefather was engaged as a Watchman on a monthly salary and in that capacity he was allowed to stay in the suit premises and after his death his son (the appellant herein) continued to serve the respondent-Society as a Watchman and was allowed to live in the premises. The property is admittedly owned by the respondent-Society.Now, when we revert to the facts of this case it becomes quite evident that the appellant is guilty of suppressing material facts and introducing false pleas and irrelevant documents. The appellant has also clouded the entire case with pleas which have nothing to do with the main controversy involved in the case.In the instant case, we would have ordinarily imposed heavy costs and would have ordered restitution but looking to the fact that the appellant is a Watchman and may not be able to bear the financial burden, we dismiss these appeals with very nominal costs of Rs. 25,000/- to be paid within a period of two months and direct the appellant to vacate the premises within two months from today and handover peaceful possession of the suit property to the respondent-Society. In case, the appellant does not vacate the premises within two months from today, the respondent-Society would be a liberty to take police help and get the premises vacated.