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2014 DIGILAW 4383 (MAD)

Varadarajan v. Angusamy

2014-11-21

R.MAHADEVAN

body2014
JUDGMENT The Second Appeal is filed against the judgment and decree dated 20.07.2006 made in A.S.No.75 of 2006 on the file of the Sub Court, Mannargudi, confirming the judgment and decree passed by the District Munsif Court, Mannargudi dated 06.12.2005 passed in O.S.No.143 of 2004. 2. The brief averments of the plaint are as follows: The suit property, measuring an extent of 6412 sq.ft, situates at Keezha Vilakara Street, Mannarkudi and a part of the suit property belongs to Angalamman Temple, which was constructed by the plaintiff's predecessors. The plaintiff, as legal heir, maintaining the said temple and residing in a portion of the suit property and paying land tax and house tax etc., The defendant has no right and enjoyment over the suit property. The predecessor of the defendant, viz. Mangathammal was residing at about 280 sq.ft of land situates eastern side of the suit property with the permission of the predecessors of the plaintiff. Except the above 280 sq.ft of land, the entire extent of the suit property is in possession and enjoyment of the plaintiff. Since the plaintiff refused to accept the request of the defendant to sell the suit property to him, he attempted to put up fence in the middle of the suit property. Hence, the suit for permanent injunction. 3. The brief averments of the written statement filed by the defendant are as follows: The plaintiff alone has to prove his case that the suit property belongs to him. The plaintiff has no right in the suit property and he has no patta for the same. The patta in respect of S.Nos.187 and 214 stand in the name of Mangalathammal, who is the grand-mother of the defendant. There is no temple in the suit property, at any point of time. Vizhakara Street Angalamman temple was constructed by the defendant's predecessors and patta in respect of S.No.185 is changed to Angalamman Temple. The plaintiff is the ''Poosari'' of Mariamman Temple. There is no connection between the plaintiff and Angalamman Temple. The house of the plaintiff, measuring 30 x 18 = 540 sq.ft., situates adjacent to Angalamman Temple and on the western side of the suit property. The area and boundaries mentioned in the plaint are wrong. The suit filed for permanent injunction without a prayer for declaration is not sustainable. Therefore, the defendant prayed for dismissal of the suit. 4. The house of the plaintiff, measuring 30 x 18 = 540 sq.ft., situates adjacent to Angalamman Temple and on the western side of the suit property. The area and boundaries mentioned in the plaint are wrong. The suit filed for permanent injunction without a prayer for declaration is not sustainable. Therefore, the defendant prayed for dismissal of the suit. 4. The Trial Judge framed the following issues:- i. Whether the plaintiff is entitled to permanent injunction as prayed for ? ii. To what relief ? 5. The trial Judge, after considering the oral and documentary evidence adduced on either side, allowed O.S.No.143 of 2004 by observing that the defendant has to prove his case by filing a separate suit. Aggrieved by the same, the defendant has preferred the appeal in A.S.No.75 of 2006 on the file of Sub Court, Mannargudi, which was also dismissed by the first appellate Court, confirming the judgment and decree passed by the trial Court. Challenging the concurrent findings rendered by the Courts below, the defendant is before this Court. 6. The second appeal was admitted on the following substantial questions of law:- 1. Whether the findings of the Court below that the suit property is in the possession of the plaintiff is perverse? 2. Whether the Courts below are right in decreeing the suit when serious dispute regarding the title is raised by setting up a title in the defendant himself? 7. Heard the learned counsel on either side and perused the material documents available on record. 8. The learned counsel for the appellant submitted that the suit property is the ancestral property of one Mangalathammal, who is none other than the grand-mother of the appellant/defendant and in support of his claim, the appellant marked Exs.B1 to B7, which are Chitta and Adangal Extracts, Rental agreement between Srinivasa Vandayar and Mangalathammal, and Encumbrance Certificate. 9. The learned counsel for the respondent/plaintiff submitted that the respondent/plaintiff is maintaining the suit property which belongs to Angalamman Temple and the said temple was constructed by his predecessors and the plaintiff is in possession of the suit property by paying kist, tax etc. 10. The claim of the plaintiff is that the land in S.No.187 belongs to Government and all the records also stand in the name of the Government. 10. The claim of the plaintiff is that the land in S.No.187 belongs to Government and all the records also stand in the name of the Government. It is seen that the plaintiff filed the suit stating that he is administering the Angalamman Temple situated in the suit property and performing poojas and residing in a portion of the suit property. 11. On the contrary, the appellant/defendant claimed the suit property as his ancestral property. The documents produced by the appellant/defendant are only chitta and adangal extracts, rental agreement and encumbrance certificate in the name of Mangalathammal. But the appellant did not produce any document to prove that the suit property is the ancestral property of Mangalathammal and the appellant is the legal heir of the said Mangalathammal. Moreover, the appellant/ defendant did not give any reason as to why the said Mangalathammal entered into an agreement with Srinivasa Vandayar, as a tenant to an extent of 280 sq.ft. in S.No.187, if she was the real owner. It is also pertinent to note that no patta stands in the name of the appellant/defendant. 12. A perusal of the oral evidence of P.W.2 leads to show that the Temple property is being administered by the respondent/plaintiff and his forefathers in the representative capacity so as to conduct poojas and offer prayers in the Temple. Since the plaintiff claimed that he and his ancestors administered the temple and lands, he ought to have filed the suit in representative capacity by seeking permission of the Court under Order 1 Rule 8 CPC or Public Interest Suit as mentioned in Section 91 of CPC. It is apparent on the basis of the records that no documents are available to indicate that the plaintiff filed any such application seeking permission of the Court under Order 1 Rule 8 of CPC nor the averments made in the plaint. Though the property in question contains the total extent of 6412 sq.ft., out of which, the appellant/defendant is said to have right over only 280 sq.ft., both the Courts below decreed the suit in favour of the respondent/plaintiff, on the sole ground that the plaintiff is in occupation of the suit property. Hence, both the Courts below did not consider the documentary evidence properly and erroneously concluded the same in favour of the respondent/plaintiff. 13. Hence, both the Courts below did not consider the documentary evidence properly and erroneously concluded the same in favour of the respondent/plaintiff. 13. In view of the foregoing reasons, the substantial questions of law raised in this second appeal are decided in favour of the appellant. 14. Accordingly, the Second Appeal is allowed, thereby setting aside the judgments and decrees rendered by the trial Court as well as the First Appellate Court, leaving it open to the parties to agitate their rights before the Competent Court for declaratory relief, if any. No costs. Consequently, connected miscellaneous petition is closed.