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2012 DIGILAW 420 (MAD)

Athulyanadheeswarar Thirukkoil v. Thirugnanam

2012-01-27

T.RAJA

body2012
Judgment :- 1. The appellant herein filed a suit as plaintiff in O.S.No.892 of 1989, on the file of the Additional District Munsif, Thirukovilur, seeking for permanent injunction restraining the respondents from trespassing into the suit property and for mandatory injunction to remove the construction. 2. At the time of admission, the following substantial question of law was framed for consideration:- i) In the facts and circumstances of the case, whether the Courts below are right in ignoring the statutory records maintained as per the requirement of the statue under Exs.A3,A4,A8 and A9? 3. Though notices were issued, no one appeared for the respondents/defendants. 4. Learned counsel appearing for the appellant/plaintiff submitted that the plaintiff filed a suit for declaration in respect of R.S.No.168/2 admeasuring 17.50 acres. Since the defendants have encroached upon the above lands on 15.09.1989, raising superstructure, on coming to know about the superstructure, a notice was sent by the plaintiff on 16.09.1989, calling upon the defendants herein to vacate and hand over the encroached portion. Though the said notice dated 16.09.1989 was received and acknowledged on 18.09.1989, by the defendants, the plaintiff filed a suit taking a stand that when the suit land belongs to plaintiff-temple, if the defendant is allowed to complete the construction, the other encroacher will follow the same and, as a result, the temple will be left with no land for its use. 5. In respect of the claim, it has been contended by the learned counsel for the appellant that several documents from Exs.A1 to A7 were produced before the trial Court, but the trial Court has not even seen those documents, including the temple register. Those documents were maintained by the temple as per Section 29 (e) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Therefore, it was submitted that, as per Section 29(e), every religious institution should prepare and maintain a register in such form to show the history of the institution and the names of the past and present trustees and particulars as to the custom, if any, regarding succession to the office of trustee and also particulars of all other endowments of the institution and of all title deeds and other documents. When such documents were properly maintained by the temple, then such documents are admissible in evidence. But, ignoring all these vital documents, the learned trial court has non-suited the plaintiff's case. When such documents were properly maintained by the temple, then such documents are admissible in evidence. But, ignoring all these vital documents, the learned trial court has non-suited the plaintiff's case. However, when the matter was taken up before the first appellate court, the first appellate Court has also unfortunately confirmed the findings of the trial Court and as a result, the the appellant/plaintiff, left with no other option, has filed the present second appeal. 6. On that basis, it was contended that even after the judgment and decree passed by the trial Court, in an effort to support the case of the plaintiff, when better documents, namely, Ex.A8, dated 18.05.1992 and Ex.A9, dated 15.08.1998, issued by the Tahsildar, were produced to show that the suit lands have already been changed as temple peramboke lands, all these documents were lost sight of by both the Courts below. Even, the revenue documents, namely, Exs.A8 and A9, produced before the learned trial Court were also completely ignored and as a result, a grave injustice have occurred to the temple. Since such material irregularities have occurred, learned counsel for appellant sought for interference with the judgment and decree passed by the Courts below. 7. In respect of her submission, she has also relied upon a judgment of this Court in Devaki v. Hindu Religious and Charitable Endowments Department (AIR 1997 MADRAS 378). Further, it was submitted that even though the documents maintained by the plaintiff as per Section 29(e) of the Act were produced before the first appellate Court, the first appellate Court without considering the same, erroneously accepted the findings of the trial Court. Such approach of the learned first appellate Court has caused grave hardship to the plaintiff. Therefore, it was contended that the infirmities committed by the both Courts below should be rectified by this Court by exercising its power under Section 100 CPC. 8. The suit was filed for declaration in respect of R.S.No.168/2 admeasuring 17.50 acres. This Court, while considering the second appeal, has got a limited jurisdiction. This Court also aware of the general rule that High Court will not interfere with the concurred findings of the Courts below. But, some of the crucial documents, namely Exs.A8 and A9 issued by the Tahsildar from revenue department clearly indicated the nature of the lands and how the suit land is entitled to be used by the plaintiff temple. This Court also aware of the general rule that High Court will not interfere with the concurred findings of the Courts below. But, some of the crucial documents, namely Exs.A8 and A9 issued by the Tahsildar from revenue department clearly indicated the nature of the lands and how the suit land is entitled to be used by the plaintiff temple. A mere reading of Ex.A8 issued by the Tahsildar dated 18.05.1992, clearly shows that the suit land has already been changed as temple peramboke land. Another communication Ex.A9, dated 15.08.1998, shows that the suit land has already declared as temple peramboke land. When these documents were produced before the first appellate Court, the first appellate Court has also looked into those documents. But, having dealt with the nature of the documents, it shows that the suit property is temple perabmoke land, therefore, in my considered opinion, the first appellate Court should have interfered with the findings of the learned trial Court. 9. Further, a mere reading of Ex.A5, letter dated 11.03.1997, the Executive Officer, Town Panchayat Office, Aragandanallur, by addressing the Executive Officer, Athulyanadheeswarar Thirukkoil, pointed out that there is a proposal under the National Rural Employment Scheme for laying down a road for the facility of the devotees and sought to accord appropriate sanction to lay down the road via S.No.168/2 with an extent of 17.50 acres. Therefore, from the above, it is clear that unless the temple is the owner of the land, the revenue authority would not have asked for a permission from the plaintiff temple to carry out the road construction work for the devotees. Even this document has not been properly considered by the Courts below, while considering the claim of the plaintiff. 10. It is well settled by the Apex Court in Hero Vinoth (Minor) v. Seshammal ( (2006) 5 SCC 545 ) that the High Court will not interfere with the concurrent findings of the Courts below. But, it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong interferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. It not only refers to cases where there is a total dearth of evidence, but also refers to any case. 11. It not only refers to cases where there is a total dearth of evidence, but also refers to any case. 11. Applying the above ratio, this Court answers the substantial question of law by holding that the Courts below have completely ignored the material evidence, carrying sufficient testimony to show that the suit property is a temple peramboke land, accordingly, without further dealing with the merits of the case, this Court deems fit to remand the matter back to the First Appellate Court. 12. As it is well settled law that the High Court has no jurisdiction under Section 100 CPC to reassess and reappreciate by entering into the factual arena of the case, this Court, to meet the ends of justice, while interfering with the findings of the first appellate Court, remit the matter back to its file for a fresh disposal on the basis of the documents adduced by the plaintiff/appellant herein. Needless to mention that, since the matter is pending for a quite long time, the same may be disposed as early as possible. 13. In result, the judgment and decree passed by the Courts below are set aside. The Second Appeal is disposed of in the above terms. No Costs.