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2024 DIGILAW 941 (MAD)

Sambanthar Swamy Kovil v. Kaliyaperumal

2024-03-21

V.LAKSHMINARAYANAN

body2024
JUDGEMENT : Appeal filed under Section 100 of C.P.C. against the judgement and decree dated 05.01.2011 made in A.S.No.13 of 2009 on the file of the District Court, Nagapattinam reversal of the judgment and decree dated 15.07.2009 made in O.S.No.3 of 2008 on the file of the Principal Sub Court, Mayilduthurai. 1. The present second appeal arises out of the judgment and decree of the court of District Judge at Nagapattinam in A.S.No.13 of 2009 dated 05.01.2011 in reversing the judgment and decree of the court of learned Principal Subordinate Judge at Mayiladuthurai in O.S.No.3 of 2008 dated 15.07.2009 and thereby decreeing the suit for declaration and permanent injunction and for consequential reliefs. 2. For the sake of convenience, the parties will be referred to as their ranks in the suit. 3. Before I commence the judgment, Mr.R.Sathish Kumar would fairly submit that insofar as B schedule mentioned property is concerned, pending the second appeal, eviction proceedings were initiated on the basis of the liberty granted by the learned lower appellate court and the second plaintiff was evicted and possession of the property was also taken. Consequently, the relief of declaration granted by the lower appellate court works itself out and no further orders are necessary with respect to B schedule property. Hence this appeal is confined only to two items in the A schedule property. 4. The appellant before me is the first defendant in the suit. 5. The case of the plaintiffs is that the first item of the A schedule mentioned property was purchased by the first plaintiff/Kaliyaperumal from one Kannaiya Padayachi on 21.02.1978. The vendor of the first plaintiff viz., Kannaiya Padayatchi had purchased the property from one Chinna Thambi Padayachi in the year 1972. Therefore, the first plaintiff claimed that he had become the absolute owner of the suit first item. Insofar as the second item is concerned, the first plaintiff claimed that he had purchased the property from one Dhanalakshmi, to whom Kudiyiruppu patta had been granted in terms of Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971. 6. It is the case of the second plaintiff that she is a lessee under the temple for the B schedule property and therefore, she sought for a declaration that she is a lessee. 6. It is the case of the second plaintiff that she is a lessee under the temple for the B schedule property and therefore, she sought for a declaration that she is a lessee. The cause of action for the suit is that the first defendant had initiated proceedings under Section 78 of the Hindu Religious and Charitable Endowments Act seeking for eviction of the second plaintiff from the B schedule mentioned property treating her as an encroacher. Fearing dispossession, the suit had been presented. 7. The first defendant entered appearance through a counsel and filed a detailed written statement. According to the first defendant, the suit is not maintainable as the same is barred under Section 78(5) of the said Act. He would contend that the second plaintiff had filed a suit in O.S.No.381 of 2005 on the file of the District Munsif Court at Mayiladuthurai and the same had been dismissed. Therefore, it will operate as res judicata. It was his further plea that both the suit schedule mentioned properties are absolute properties of the temple and therefore, the suit has to be dismissed. 8. On the basis of the above pleadings, the learned trial judge framed the following issues: 9. On the side of the plaintiffs, three witnesses were examined as PW1 to PW3 and Ex.A1 to Ex.A13 were marked. On the side of the defendants, DW1 was examined and marked Ex.B1 to Ex.B10. 10. On the basis of the evidence oral and documentary let in before the learned trial judge, the learned trial judge concluded that the suit is not barred by res judicata and the suit is not barred by limitation, however, held the suit is not maintainable and the plaintiffs are not entitled for a decree of declaration and consequently, dismissed the suit. 11. Aggrieved by the same, a regular appeal was preferred before the learned District Judge at Nagapattinam who reversed the decree by finding that (i) a patta had been granted under the Tamil Nadu Act 40 of 1971, which bars the temple from initiating eviction proceedings with respect to the property covered under the said patta and (ii) since the second plaintiff is a lessee of the property, she cannot be treated as an encroacher and consequently, granted the declaration that the second plaintiff is a lessee. 12. 12. The second appeal has not been admitted by this Court and notice regarding admission had been ordered on 03.09.2013. Thereafter, it has been posted before me for orders on admission in the appeal. 13. I would admit the second appeal on the following substantial questions of law : “(A) Whether the suit framed as such against the order dated 12.09.2007 (Ex.A1) is maintainable, in view of the specific bar under Sections 81 r/w 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959? (B) Whether the First Appellate Court erred in law and misdirected itself in granting the declaration merely on the basis of the Kudiyirupy patta and self serving documents relied on by the plaintiffs, particularly when the alleged sale of the suit properties owned by the first defendant temple is per se illegal for want of permission under Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959? (C) Whether the First Appellate Court erred in law in not taking into consideration or giving a specific finding on the question as to the overriding effect of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 so as to nullify the claim of the plaintiffs under the patta granted as per the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971? (D) Whether the suit filed by the plaintiffs is hit by the principle of res judicata in view of the dismissal of the suit in O.S.No.381 of 2005?” 14. Mr.R.Sathish kumar took notice on behalf of the respondents 1 and 2 and argued the appeal. 15. Mr.N.Manokaran would contend that Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 is a bar for maintaining the present suit. According to him, any order with respect to grant of right, title and interest like, lease, sale etc., can be granted only with the permission of the Commissioner, Hindu Religious and Charitable Endowments and that too, after the approval of the Government. Since no order under Section 34 of the Act has been produced by the plaintiffs, they cannot claim any right. 16. Since no order under Section 34 of the Act has been produced by the plaintiffs, they cannot claim any right. 16. Mr.R.Sathish Kumar pointing out the provisions relating to Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971, would contend that the said act has overriding effect over all other legislations and therefore, there is no necessity for an order to be passed under Section 34 of the Hindu Religious and Charitable Endowments Act, when the authorised officer has granted a patta under terms of Tamil Nadu Act 40 of 1971. 17. It is pertinent to note that the title deeds under which the first plaintiff purchased the property from Chinna Thambi and Kannan Padayachi disclose that 'what was alienated' was a leasehold right from the temple and therefore, that the properties are temple lands is beyond caveat. The only thing that prevents me from dismissing the suit in its entirety is the patta granted under the Tamil Nadu Act 40 of 1971. I find considerable force in the submission of Mr.R.Sathish kumar. Under Section 26 of the Tamil Nadu Act 40 of 1971, this Act has been given the status of over ridding any other laws. It reads as follows: “26. Act to override other laws. - The provisions of this Act and the rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or any custom, usage, or contract or decree or order of a Court or other authority.” 18. Apart from that, the purpose for which the Tamil Nadu Act 40 of 1971 was brought in, was for the conferment of ownership rights on persons who are in occupation of agricultural lands as Kudi iruppurdharars. “What is Kudiyiruppu?” is defined under Section 2(8) of the Act. The benefits under the Act can be given to a person, who is an agricultural labourer, are stated under Section 2(1) of the said Act. Therefore, while Tamil Nadu Hindu Religious and Charitable Endowments Act deals with all kinds of lands that are owned by the temple, Tamil Nadu Act 40 of 1971 is a special legislation dealing specifically with Kudiyirupppudharars. 19. If general legislation is put against special legislation, the court will necessarily have to apply the special legislation to the facts of the case. 19. If general legislation is put against special legislation, the court will necessarily have to apply the special legislation to the facts of the case. Kudiyiruppu means the site on which a dwelling house has been put up by an agricultural labourer and has been under the occupation. The Act was intended to protect such persons, who have been in occupation of areas as covered under the Act from the year 1971 onwards. This is in order to give protection to the agricultural labourers who have otherwise been left at the mercy of the landlords. 20. If an order is passed granting kudiyiruppu rights under the Act, the same will have to be treated as a document of title as is clear from Section 3(1) of the Tamil Nadu Act 40 of 1971. If a person is in possession on orders of the authorised officer under the Tamil Nadu Act 40 of 1971, then he becomes the owner of the said property and cannot be treated as an encroacher. Unless and until, a person is an encroacher as defined under Sections 78 and 79 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, the jurisdiction of the Joint Commissioner to initiate proceedings does not arise. The condition precedent for the initiation of proceedings under the said legislation is that the property must belong to a “religious institution” covered under the Act and the person in occupation should be an “encroacher”. If by virtue of Section 3 of Tamil Nadu Act 40 of 1971, a person in possession has become the owner of the property, the question of treating him as an encroacher does not arise at all. Therefore, the finding of the lower appellate court is that insofar as the area for which kudiyiruppu rights had been granted to the first plaintiff, Section 78 proceedings cannot be initiated do not require any interference. 21. In fact this very issue had been dealt with by the judgment of this Court in Gowri and others vs. Lakshmigandam Ammal, (2011) 1 MLJ 126 . The relevant paragraph holds that the patta granted by the authorities under the Tamil Nadu Act 40 of 1971 is a document of title has not only found legislative acceptance, but also judicial approval. For completion of narration, the said paragraph is extracted hereunder: “19. The relevant paragraph holds that the patta granted by the authorities under the Tamil Nadu Act 40 of 1971 is a document of title has not only found legislative acceptance, but also judicial approval. For completion of narration, the said paragraph is extracted hereunder: “19. An ordinary patta granted by the revenue authorities evidencing possession of the property cannot be construed as a document of title. Section 3 of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971 postulates that the occupant of kudiyiruppu becomes owner of the property in occupation if he or she had been a tenant or a lessee with effect from the date of commencement of the said Act. Statutory patta is granted only in recognition of the automatic ownership contemplated under section 3 of the said Act. Therefore, the statutory kudiyiruppu patta granted by the authorised officer under the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971 is, as a matter of fact, a document of title unlike other pattas granted by the revenue authorities recognising the possession of the party concerned.” 22. Therefore, with respect to the area for which patta has been granted by the authorised officer in favour of the first plaintiff, I necessarily have to hold that the plaintiff is the owner of the properties. 23. Perusal of the records would show that patta has been granted only to an extent of 5 cents, whereas the first plaintiff is in occupation of 8 ½ cents. Therefore, insofar as 3 ½ (8 ½ - 5) cents are concerned, the first plaintiff is not entitled for the protection under Act 40 of 1971. 24. Though the suit relates to 8 ½ cents, I am not inclined to push the first defendant/ temple or the plaintiffs to a fresh suit & prolong the litigation with respect to 3 ½ cents. Where higher relief has been sought by the plaintiffs with respect to 8 ½ cents and I find that he is entitled to 5 cents, alone by virtue of the powers conferred on this Court under Order 7 Rule 7 of Code of Civil Procedure, I am inclined to grant the lesser relief. Where higher relief has been sought by the plaintiffs with respect to 8 ½ cents and I find that he is entitled to 5 cents, alone by virtue of the powers conferred on this Court under Order 7 Rule 7 of Code of Civil Procedure, I am inclined to grant the lesser relief. Therefore, the decree of the lower appellate court stands modified to the effect that the plaintiffs are declared to be the owners of the property over which patta had been granted to them with respect to 5 cents under the Tamil Nadu Act 40 of 1971 and the suit stands dismissed insofar as the remaining 3 ½ cents for which a claim has been made in the suit. 25. As pointed out above, since possession has already been taken with respect to B schedule property, no further orders are necessary in this regard. In fine, the judgment and decree of the court of District Judge, Nagapattinam in A.S.No.13 of 2009 dated 05.01.2011 stands modified. The suit in O.S.No.3 of 2008 on the file of the learned Principal Subordinate Judge, Mayiladuthurai shall stand decreed with respect to the portions covered under Ex.A5 and Ex.A13 and shall stand dismissed with respect to the remaining portion. 26. At this stage, Mr.N.Manokaran would point out that the entire proceedings before the authorised officer under Section 3 of Tamil Nadu Act 40 of 1971 had been proceeded with without notice to the owner namely temple, the first defendant. 27. I notice in the legislation that the jurisdiction of the civil court is barred with respect to any proceedings that have been initiated under the Act. The remedy for the temple is only to file an appeal as against the order passed by the authorised officer before the appropriate appellate authority. Liberty is granted to the temple to agitate its right, stating that the first plaintiff is not a kudiyiruppudharar with respect to which the patta has been granted under the Act to him. Accordingly, 90 days time is granted to the temple to file an appeal, from the date of receipt of a copy of this judgment to agitate its rights, with respect to the grant of patta granted to the first plaintiff and his predecessor in title. 28. With the above observation, the second appeal is partly allowed in the aforesaid terms. Accordingly, 90 days time is granted to the temple to file an appeal, from the date of receipt of a copy of this judgment to agitate its rights, with respect to the grant of patta granted to the first plaintiff and his predecessor in title. 28. With the above observation, the second appeal is partly allowed in the aforesaid terms. As the benefit of patta granted under the beneficial legislation, I am not inclined to impose cost. Consequently, connected miscellaneous petitions are closed.