JUDGMENT : (Prayer : The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.80 of 2002 dated 31.03.2004 on the file of the Additional District & Sessions Court, Tiruppattur (FTC), Vellore District reversing the judgment and decree made in O.S.No.202 of 1998 dated 25.10.2000 on the file of the Additional District Munsif Court cum Judicial Magistrate, Ambur.) 1. The plaintiff in O.S.No.202 of 1998 on the file of the Additional District Munsif Court -cum- Judicial Magistrate, Ambur is the appellant herein. The suit in O.S.No.202 of 1998 had been filed by the appellant/Arulmigu Samundeswari Amman Alayam, Ambur, represented by its Dharmakartha N.Mohan against three defendants, Abdul Hag Sahib, Javeed Ahmad, Zubair Ahmad, seeking permanent injunction restraining the defendants from interfering with peaceful possession of the suit schedule property and for costs of the suit. The suit schedule property is situated at S.No.276/02, Ward-C, Block – 18 in Ambur Town in Vaniyambadi Taluk and measures North to South 82 feet, East to West 31 ½ Feet and is land with temple and trees. By judgment dated 25.10.2000, the suit was decreed. 2. The defendants then filed A.S.No.80 of 2002 which came up for consideration before the Additional District & Sessions Judge, Tirupattur/Fast Track Court, Vellore and by judgment dated 31.03.2004, the Appeal was allowed thereby setting aside the decree of the Trial Court and dismissing O.S.No.202 of 1998. 3. Questioning that judgment of the First Appellate Court, the plaintiff had filed the present Second Appeal. 4. The Second Appeal had been admitted on the following four substantial questions of law:- “1. Whether the order of the lower appellate Court is not against documentary evidence under Exs.A3 to A7? 2. When evidence had been adduced before the Court with regard to the existence of temple for over 50 years, whether the finding of the lower appellate Court that the plaintiff have no title to the property on the basis of Exs.B1 and B3, is not perverse? 3. Whether the lower appellate court is right in holding that the present suit is barred by res-judicata, when the document necessary to apply the principle had not been made available before the Court? 4. 3. Whether the lower appellate court is right in holding that the present suit is barred by res-judicata, when the document necessary to apply the principle had not been made available before the Court? 4. When the plaintiff had established possession for over a statutory period, whether the lower appellate Court ought not to have held that the temple had perfected title and the defendants, even if they have any, had lost that right under the principles set out under Section 28 of the Limitation Act?” 5. It must be noted that the 2nd respondent, Javeed Ahmed had died even during the pendency of the First Appeal, and his legal representatives had been brought on record in the First Appeal. During the pendency of the Second Appeal, the 3rd respondent had died and since steps have not been taken, the appeal had been dismissed against the 3rd respondent by order dated 13.12.2021. 6. It must also be mentioned that in an order dated 08.01.2020, this appeal was also dismissed against the 1st and 2nd respondents. However, the 2nd respondent had died even during the pendency of the first appeal and his legal representatives had already been brought on record as 4th to 7th respondents. O.S.No.202 of 1998 (Additional District Munsif cum Judicial Magistrate Court, Ambur):- 7. The suit had been filed by Arulmighu Samundeswari Amman Alayam, Ambur, represented by its Dharmakartha, N.Mohan claiming that the said temple had been established more than fifty years back and that continuous poojas were being conducted and there were also idols placed in the temple. It was also stated that in a corner of the vacant land, with permission from the plaintiff, one Manickam had put up a small hut and was residing there. He died in the year 1964. Thereafter, with permission of the temple his son Kuppusamy was in possession of the said place. On 05.11.1981, the said Kuppusamy had relinquished his possession in favour of the then Dharmakartha of the temple. The said document was also registered. It was therefore contended that the entire area had come under the control of the plaintiff. Daily poojas and temple festivals were also conducted. The 1st defendant claimed that he had filed a suit before the District Munsif Court, Tirupattur and had obtained an order in his favour. The said document was also registered. It was therefore contended that the entire area had come under the control of the plaintiff. Daily poojas and temple festivals were also conducted. The 1st defendant claimed that he had filed a suit before the District Munsif Court, Tirupattur and had obtained an order in his favour. It was stated by the plaintiff that the defendants were attempting to interfere with the peaceful possession of the land belonging to the plaintiff, necessitating the suit to be filed. 8. The 3rd defendant filed a written statement which was adopted by the 1st and 2nd defendants. They denied the claim of the plaintiff that the temple was established more than fifty years back. They also denied that Manickam was in possession of the suit property and that later his son Kuppusamy was in possession and that he had relinquished his right in favour of then Dharamakartha. It was contended that both Manickam and Kuppusamy were never in possession and therefore the question of relinquishment would not arise. They also denied that poojas and festivals were being conducted in the temple. They claimed that the 1st defendant and one Balkish had filed O.S.No.34 of 1982 against one Krishnasami and others, before the District Munsif Court, Tirupattur, seeking permanent injunction restraining the defendants from trespassing into the suit schedule property and for the removal of the Trishul and for costs. It was claimed that the suit was decreed on 02.08.1994. It was therefore stated that the 1st defendant and his wife Balkish Bi who had purchased the property and other lands by registered sale deed dated 28.10.1977 have acquired a right to be in possession of the property as owners. It was also stated that the previous owners of the suit property had also filed O.S.No.853 of 1971 against Kuppusamy, son of Manickam for declaration of title, right and interest and the suit was also decreed on 06.11.1971 and it was therefore contended that the suit being vexatious should be dismissed. 9. On the basis of the above pleadings, the following issues were framed by the Trial Court. “1.Whether the plaintiff was the Dharmakartha of the temple and whether he had right to institute the suit on behalf of the temple? 2. Whether the temple was in existence of more than fifty years? 3. 9. On the basis of the above pleadings, the following issues were framed by the Trial Court. “1.Whether the plaintiff was the Dharmakartha of the temple and whether he had right to institute the suit on behalf of the temple? 2. Whether the temple was in existence of more than fifty years? 3. Whether the 1st defendant and his predecessor were in possession of the suit schedule property? 4. Whether the judgment and decree in O.S.No.34 of 1982 would act as resjudicata? 5. To what other reliefs are the parties entitled to?” 10. During trial, on the side of the plaintiff, three witnesses were examined as PW-1 to PW-3. They also marked Exs.A1 to A14. Ex.A1 was the relinquishment dated 05.11.1987. Ex.A2 was the extract of A-Register of Ambur Municipality. Exs.A4 and A5 were photographs evidencing the presence of the temple. Exs.A6 to A12 were invitations and other publicity materials relating to the temple. Ex.A13 was the account book for the income and expenditure of the temple. Ex.A14 was a copy of a registered sale deed dated 29.04.1998. 11. On the side of the defendants, two witnesses were examined as DW-1 and DW-2 and Exs.B1 to B13 were marked. Ex.B1 and B2 were the sale deeds in favour of the defendants and Ex.B3 was a partition deed. Ex.B4 was property tax receipt. Ex.B6 was the decree copy in O.S.No.34 of 1982 dated 07.04.1987. Ex.B7 was the Commissioner's report. Ex.B8 was the Commissioner's sketch in the aforementioned O.S.No.34 of 1982. Ex.B10 and B11 related to the earlier suit in O.S.No.853 of 1971 and Exs.B12 and B13 were notices issued by the Ambur Municipality with respect to the property tax. 12. On the basis of the pleadings, oral and documentary evidence, the learned Additional District Munsif – cum – Judicial Magistrate, Ambur found as a fact, that the plaintiff temple was in existence and was specifically proved with photograph evidence. That particular fact and other documents also established that the temple was actually in existence and continued to be in existence. It was also observed that the decree in O.S.No.34 of 1982 was an exparte decree and had been instituted against Krishnasami Mudaliyar, Panjacharam, Sundaram and Egambaram. That particular fact and other documents also established that the temple was actually in existence and continued to be in existence. It was also observed that the decree in O.S.No.34 of 1982 was an exparte decree and had been instituted against Krishnasami Mudaliyar, Panjacharam, Sundaram and Egambaram. The contention that those individuals were never in management of the temple was taken note and it was also found fault with the defendants that the judgment copy was not filed with respect to the said suit and therefore it was held that the decree in the said suit cannot act as resjudicata. Holding that the suit was filed only for permanent injunction restraining the defendants from interfering with peaceful possession, the suit was decreed. A.S.No.80 of 2002 (Additional District & Sessions Court, Tiruppattur/FTC, Vellore):- 13. The defendants then filed an appeal questioning the judgment of the Trial Court. Pending the appeal, the 2nd defendant died and his legal representatives were brought on record as appellants 4 to 7. The learned Additional District Judge, who examined the appeal framed the following points for consideration under Order 41 Rule 31 of CPC. “1. Whether the plaintiff/respondent proves that plaintiff is in possession and enjoyment of the suit property on the date of filing of the suit and before that? 2. Whether the appellants/defendants prove the suit property is their exclusive property and they purchased the same from the original true owner? 3. Whether the appellants/defendants prove that the suit is barred the rule of resjudicata? 4. In whose favour the balance of convenience lies? 5. To what relief?” 14. The First Appellate Judge, however found fault with the plaintiff who represented the temple N.Mohan since he did not graze the witness box. It was also noted that the plaintiff had not filed any document to show that N.Mohan was the Dharmakartha of the temple. The learned Judge further held from a perusal of the documents, that it was not established that the temple was functioning for more than fifty years as claimed and also that the relinquishment deed executed by Kuppusamy in favour of the temple was a self serving document and the document does not show that Kuppusamy and his father were enjoying a portion of the property. It was also held that Ex.A13 was only a small note book and could not be relied on and also that the sketch in Ex.A3 did not disclose the presence of the temple and that Ex.A2/extract of A-Register was of the year 1997 to 1998, just before filing of the suit and it was therefore held that the plaintiff had not established that the temple was in existence for more than 50 years. The learned Additional District Judge also examined the description of the suit property as given in the plaint and as given in Ex.B3 release deed executed by Salma Bi in favour of Dr.Mohammed Ibrahim and the description as given in Ex.B1 registered sale deed dated 28.10.1977 executed by Dr.Mohammed Ibrahim in favour of the 1st defendant and his wife. The property as given in Ex.B3 were also examined and it was also found that the boundaries tallied. 15. With respect to the suit in O.S.No.34 of 1982, it was found that the suit had been decreed on 02.08.1994 and the decree had been produced as Ex.B6 and that the Commissioner's report and sketch had been produced as Exs.B7 and B8 and that though the decree was an exparte decree, it was held that it was still binding on the plaintiff herein and was an executable decree and therefore on the basis of the said analysis of the documents and the evidence produced, the appeal was allowed and the suit was dismissed. S.A.No.1615 of 2004:- 16. As pointed out the Second Appeal had been admitted on 30.07.2004 on the following substantial questions of law:- “1. Whether the order of the lower appellate Court is not against documentary evidence under Exs.A3 to A7? 2. When evidence had been adduced before the Court with regard to the existence of temple for over 50 years, whether the finding of the lower appellate Court that the plaintiff have no title to the property on the basis of Exs.B1 and B3, is not perverse? 3. Whether the lower appellate court is right in holding that the present suit is barred by res-judicata, when the document necessary to apply the principle had not been made available before the Court? 4. 3. Whether the lower appellate court is right in holding that the present suit is barred by res-judicata, when the document necessary to apply the principle had not been made available before the Court? 4. When the plaintiff had established possession for over a statutory period, whether the lower appellate Court ought not to have held that the temple had perfected title and the defendants, even if they have any, had lost that right under the principles set out under Section 28 of the Limitation Act?” 17. Heard arguments advanced by Ms.V.Srimathi, learned counsel for the appellant and Mr.S.Kothandaraman, learned counsel for the 4th to 7th respondents. 18. As pointed out the Second Appeal had been dismissed against the 3rd respondent on 13.12.2021. In the order dated 08.01.2020, it was noted that the appeal is also dismissed against the 1st and 2nd respondents. However, the 2nd respondent had died even during the pendency of the first appeal and his legal representatives were brought on record as 4th to 7th respondents. They are the only contesting respondents. Mr.S.Kothandaraman, learned counsel, argued the appeal on their behalf. 19. The brief facts are that the appellant who was the plaintiff in the suit claimed that in the suit schedule property a temple exists and that in a corner of the property by permission of the temple, one Manickam had put up a small hut and after his death his son Kuppusamy continued to be in possession. Later Kuppusamy relinquished his right over the said piece of land and therefore, the temple was in possession of the entire land mentioned in the schedule to the plaint. It was further contended that the defendants interfered with peaceful possession and therefore, the suit was laid for permanent injunction to protect possession. 20. The contention of the defendants on the other hand is that they had purchased the property and more particularly the 1st defendant and his wife purchased the property and they traced title and claimed that their predecessors had instituted a suit against Kuppusamy and had obtained a decree of permanent injunction. 20. The contention of the defendants on the other hand is that they had purchased the property and more particularly the 1st defendant and his wife purchased the property and they traced title and claimed that their predecessors had instituted a suit against Kuppusamy and had obtained a decree of permanent injunction. Further, the 1st defendant and his wife had earlier filed O.S.No.34 of 1982 on the file of the Principal District Munsif Court, Tirupattur, against five individuals who were stated to be the then Dharmakarthas of the temple and had obtained a decree of injunction and also mandatory injunction to remove the idols and Trishul. It was therefore contended that their right had recognized in O.S.No.34 of 1982. 21. I have given my careful consideration to the arguments advanced and perused the materials on record. 22. The first substantial question of law was whether the order of the Lower Appellate Court was not against documentary evidence, particularly Exs.A3 to A7. Ex.A3 dated 14.10.1982 is a rough sketch of the lay of the land of the suit property. It was a document of Ambur Municipality. Ex.A4 are photographs of the Samundeswari Amman Temple along with negatives. Ex.A5 were photographs taken at the time when poojas had been conducted at the temple and also shows some devotees. Ex.A6 dated 04.12.1987 is an invitation for a function of the temple and Ex.A7 is another invitation dated 26.08.1983. These documents had been produced by the appellant/plaintiff to evidence the presence of a temple, an idol with Trishulam, and worship by people and also that festivals were conducted and participated by the general public. The learned First Appellate Judge, had rejected Ex.A3 by stating that the said rough sketch did not show the presence of a temple. The said rejection defies logic. 23. The fact that the temple existed on the date of institution of the suit is sufficient to hold that the temple existed. Even in O.S.No.34 of 1982, instituted by the respondents/defendants, existence of an idol with Trishul had been admitted and a mandatory injunction was sought to remove them. On that one fact itself, I hold that the First Appellate Judge had examined the documents with closed eyes. 24. The learned First Appellate Judge further doubted whether the temple existed for fifty years and more as claimed by the plaintiff. The temple need not have existed for fifty years or more. On that one fact itself, I hold that the First Appellate Judge had examined the documents with closed eyes. 24. The learned First Appellate Judge further doubted whether the temple existed for fifty years and more as claimed by the plaintiff. The temple need not have existed for fifty years or more. If the temple had existed on the date of filing the suit, then without due process, there cannot be interference. That the temple existed is also evidenced by Exs.B7 and B8 which are the rough sketch and report filed by the Advocate Commissioner in the suit instituted by the respondents herein in O.S.No.34 of 1982. The Commissioner admitted to the existence of the temple. If anyone were to enter into a discussion on the age of any temple, then the discussion would certainly travel into the zone of speculation. The fact remains that the temple existed and exists. That fact had been overlooked and had not been properly appreciated by the First Appellate Court. The photographs and invitations produced as Exs.A4 to A7 had not even been referred by the First Appellate Court. I shall refer to them to the advantage of the appellant herein. 25. It must be kept in mind that the suit was for permanent injunction alone. In (2008) 4 SCC 594 , Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs and others, the Hon'ble Supreme Court while examining the requisites to be established in a suit for permanent injunction, had held as follows : “15. In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and the defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally”. 26. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally”. 26. In the instant case, the plaintiff has clearly established that the temple existed on the date of filing the suit and continues to exist. 27. I would therefore answer the first substantial question of law that the First Appellate Court had given its findings in direct contradiction to the documentary evidence presented, namely Exs.A3 to A7 and also more particularly Ex.B7 and B8. The first substantial question of law is answered accordingly, that there has been improper and skewed appreciation of evidence by the First Appellate Court. This necessitates interference with the judgment and decree under appeal. 28. The second substantial question of law is whether the First Appellate Court was right in holding that the appellant/plaintiff has no title to the suit property on the basis of Ex.B1 and B3, even though evidence had been adduced that the temple had existed for fifty years and more. Ex.B1 was a sale deed in favour of the parents of the 2nd respondent and executed by Dr.Mohammed Ibrahim dated 28.01.1977. Ex.B3 was a partition deed dated 24.07.1929. The First Appellate Court had examined the boundaries in the said documents and found that they correlated with the boundaries as given in the plaint. They have to. But the substantial question of law is whether in the presence of evidence that the temple existed for more than fifty years such exercise to examine title is required. 29. The respondents rely heavily on a decree in O.S.No.34 of 1982 Ex.B6, which was dated 07.04.1987. From Ex.B6, nothing can be deciphered. The judgment and the reasons of the learned Judge in granting the decree had not been produced by the respondents herein. A decree is drafted in accordance with the relief granted in the judgment. The reasons for granting such relief would be the basis or fulcrum to examine whether such judgment acts as res-judicata to the issues in a subsequent suit. 30. It must be mentioned that the temple was not a party to that suit. A decree is drafted in accordance with the relief granted in the judgment. The reasons for granting such relief would be the basis or fulcrum to examine whether such judgment acts as res-judicata to the issues in a subsequent suit. 30. It must be mentioned that the temple was not a party to that suit. Further Exs.B7 and B8, the rough sketch of the Commissioner and the report of the Advocate Commissioner were presented in the said suit in O.S.No.34 of 1982. In the report of the Advocate Commissioner, the existence of the temple had been very clearly mentioned. When such a report was part of evidence, a duty was cast on the respondents herein who were the plaintiffs in that suit to implead the temple as a party to O.S.No.34 of 1982. They had impleaded a random five individuals and it is the contention of the appellant herein that the said individuals were not Dharmakarthas and had also died before the decree was passed, which was an exparte decree granted after nearly five years. Moreover, there is no explanation given as to why Execution Petition had not been filed pursuant to such decree for the past one decade prior to the institution of the suit from which the present Second Appeal emanates. 31. On the basis of Exs.B1 and B3, title can never be decided unless, the respondents herein had joined issue by filing a written statement claiming and asserting title and paying Court fees for such declaration. The earlier exparte decree in O.S.No.34 of 1982 would not come to the rescue of the respondents since though it was evident that the temple was in existence even at that time, they had not chosen to institute the suit against the temple or to implead the temple as a party even after the receipt of the Commissioner's report and sketch Exs.B6 and B7. The temple or a deity has a jurisdictional presence and individuality. It is an entity recognized and can be sued and can sue. The respondents had deliberately avoided instituting the suit against the temple. They will have to suffer the consequences thereof. With respect to the second substantial question of law, I hold that the First Appellate Court had erred in holding that the appellant temple had no title to the suit property. The respondents had deliberately avoided instituting the suit against the temple. They will have to suffer the consequences thereof. With respect to the second substantial question of law, I hold that the First Appellate Court had erred in holding that the appellant temple had no title to the suit property. The issue was only with respect to possession and the Lower Appellate Court was not called upon to determine title. The further issue was whether the said possession was lawful and recognized. There being no evidence to the contrary, the First Appellate Court had erred in holding otherwise. The second substantial question of law is also answered accordingly and it further evidences that the judgment of the First Appellate Court is perverse in nature and has to be set aside. 32. The third substantial question of law was with respect to resjudicata particularly with respect to the earlier suit in O.S.No.34 of 1982. It had been earlier discussed that the judgment in the said suit had not been produced. The defendants to the suit were an assortment of individuals whose status is not known. The temple was not impleaded as a defendant even though the Commissioner had filed a report and sketch Exs.B7 and B8, that there was a temple in existence. The decree copy alone had been produced as a document in Ex.B6 and no inference can be drawn from it. The judgment copy had not been produced and therefore, it can never be determined whether the findings in the said suit act as res-judicata over the issues of the present suit. When the respondents herein rely on the judgment and decree in the said suit, the onus and responsibility was on them to produce the judgment. An exparte judgment cannot straight away be stated to an executable judgment. It should also confirm to the principles necessitated under Order XX of CPC. There should be a finding on the issues framed. It is not known whether such findings had been given. Therefore, I would answer the third substantial question of law against the respondents herein and hold that the earlier suit in O.S.No.34 of 1982 does not and cannot act as res-judicata, so far as the issues in the present suit are concerned. 33. It is not known whether such findings had been given. Therefore, I would answer the third substantial question of law against the respondents herein and hold that the earlier suit in O.S.No.34 of 1982 does not and cannot act as res-judicata, so far as the issues in the present suit are concerned. 33. The fourth substantial question of law though referred to Section 28 of the Limitation Act, 1963, should have been only with respect to Section 27 of the Limitation Act, 1963, which provision is as follows: “27. Extinguishment of right to property.—At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.” 34. There is substantial evidence produced that the plaintiff temple was in existence. It need not be established that the temple was in existence for more than fifty years. This substantial question of law surrounds the aforementioned provision and it had been framed to examine whether the respondents have lost their right to question possession since the temple claimed title. There cannot be an extinguishment of that right which had accrued to the defendants owing to purchase of the property by registered documents. But however, they cannot place reliance on the judgment and decree in O.S.No.34 of 1982 since they had not instituted that suit against the temple. But the fact that they had instituted the suit would act in their favour to hold that their right to claim title was not extinguished. 35. Further, the issue of title of the lands will have to be decided on the basis of analysis of oral and documentary evidence, which exercise was not undertaken on merits in O.S.No.34 of 1982. That suit was instituted against five individuals and even though existence of the temple was established by the report and sketch of the Commissioner marked as Exs.B7 and B8, the temple was not impleaded as a defendant. Therefore, the defendants cannot press the said decree to their advantage. Moreover, the copy of the judgment had not been produced and it is not known whether the said judgment confirms to the stipulations under Order XX of CPC. 36.It must also be stated that the present suit had been filed only to protect possession and the defendants had also not filed any counter claim asserting title. They had denied title of the plaintiff. 36.It must also be stated that the present suit had been filed only to protect possession and the defendants had also not filed any counter claim asserting title. They had denied title of the plaintiff. Having participated in a judicial lis continuously, I hold that their right had not been extinguished and Section 27 of the Limitation Act, 1963 cannot be pressed into service by the appellants herein. 36. The issue of title is left open and it is for the parties to workout their remedies in manner known to law. The issue of possession alone is answered. This substantial question of law is answered that the right of the defendants to assert title does not stand extinguished and Section 27 of the Limitation Act, 1963 does not act as a bar to the defendants' right to claim title over the property. 37. In view of the answers given to the other substantial questions of law that the appellants are in possession and their possession cannot be disturbed, the finding of the First Appellate Court will necessarily have to be interfered with and the judgment and decree of the Trial Court will have to be confirmed and upheld. 38. In the result, (i) the Second Appeal stands dismissed as abated against 1st and 3rd respondents. (ii) the Second Appeal is allowed with costs against 4th to 7th respondents. (iii).The judgment and decree of the First Appellate Court in A.S.No.80 of 2002 on the file of the Additional District & Sessions Court Tirupattur/Fast Track Court, Vellore District, dated 31.03.2004 is set aside. (iv).The judgment and decree of the Trial Court in O.S.No.202 of 1998 on the file of the Additional District Munsif-cum-Judicial Magistrate Court, Ambur, dated 25.10.2000 is restored and confirmed.