Madras High Court
Arumigu Logavinayagr Temple vs Sankari on 8 July, 2013
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 08.07.2013 Coram:-
The Hon'ble Mr. Justice T.Raja Second Appeal Nos.1257/07, 509 & 510/12 and MP No.1 of 2012 in SA No.1257 of 2007 SA No.1257 of 2007 Arumigu Logavinayagr Temple, rep. by its Fit Person, Maduvankarai, Guindy, Madras. ... Appellant vs.
1. Sankari
2. Kamala
3. Thangaraj
4. Chinniah
5. Valli
6. Dhanam ... Respondents S.A. Nos.509 & 510/12
1. Kamala
2. Chinnaiah
3. Valli
4. Dhanam ... Appellants vs.
1. Sankari
2. A/M Loga vinayagar temple rep. by its fit person P.Saravanan ... Respondents in both the appeals Thangaraj ... R3 in SA.509/12 Appeals against the Common Judgment and Decree, dated 28.03.2006, passed in A.S. Nos.169 of 2004 and 243 of 2004, by the Additional District Judge, Fast Track Court-II, Chennai, confirming the judgment and decree, dated 05.03.2004, passed by the V Assistant Judge, City Civil Court at Chennai in O.S. No.6552 of 1992.
For appellant in SA.1257/07 & R2 in SA.509 & 510/12 : Mr.N.Sathyamoorthy For R1 in all S.As. : Mr.A.R.Nixon For appellants in SA.509 & 510/12 and RR-2 & 4 to 6 in S.A.1257/2007 : Mr.S.Parthasarathy, Senior Counsel for Mr.A.S.Narasimhan.
Common Judgment In all the above three Second Appeals, challenge is made to the common judgment and decree, dated 28.03.2006, passed by the Additional District Judge, Fast Track Court-II, Chennai, in A.S. Nos.169 and 243 of 2004, confirming the judgment and decree of the V Assistant Judge, City Civil Court, Chennai, passed in O.S. No.6552 of 1992 on 05.03.2004.
While the appellant in S.A. No.1257 of 2007-Lokvinayaka Temple, Maduvankarai-Guindy, Chennai, questions the validity of the impugned judgment of the court below in confirming the decree passed by the trial court with regard to the suit land in favour of R-1/Sankari - daughter of one Sengeni Naicker, the appellants in S.A. Nos.509 and 510 of 2012 challenge the impugned verdict insofar as grant of relief in favour of Sankari/R1 alone to the exclusion of the appellants, who are also the legal heirs of late Sengeni Naicker.
Inasmuch as the appeals are interconnected and they require joint disposal on interwoven issues, they were heard together and are disposed of by this Common Judgment.
2. Sankari-R1 in both the appeals, as plaintiff, had filed O.S. No.6552 of 1992 on the file of the V Assistant City Civil Court, and the pleadings, in brief, run thus:-
In respect of the suit land measuring an extent of about 1.6 acres in Block No.6, T.S. No.23 (part) of Maduvankarai-Velachery Village, the father of the plaintiff, by continuous occupation and enjoyment, prescribed title to it by adverse possession. His title and possession was confirmed by judgment and decree, dated 30.12.1969, passed in O.S. No.3002 of 1966. The said suit was filed by the defendant-temple, appellant in S.A. No.1257 of 2007, against the father of the plaintiff and others for recovery of possession pursuant to an earlier decree in O.S. No.38/48 on the file of the City Civil Court, Chennai. After the death of the plaintiff's father Sengeni Naicker on 05.08.1985, patta standing in the name of Sengeni Naicker was transferred in the name of his only legal heir-Sankari/plaintiff from 1987. Besides, the plaintiff's right over the suit property has been recognized by various authorities, in particular, the Assistant Commissioner, Urban Land Ceiling Act, T.Nagar. When proceedings under the T.N. Urban Land Ceiling Act were initiated by the competent authority by passing orders, such action was questioned by the plaintiff by filing writ petition in W.P. No.11537/90 pending which, in WMP No.17202 of 1990, the plaintiff obtained stay of all further proceedings by the authorities concerned. Those legal proceedings set at motion by the plaintiff would go to show that the defendant-temple did not have any better title or right or interest over the suit land than the plaintiff. While so, the defendant-temple started interfering with the possession of the suit land to remove the fencing put up BY the plaintiff. In view of that, the plaintiff was constrained to file the suit seeking permanent injunction restraining the defendant/temple, its men, agents, servants and successors in office from interfering with the plaintiff's right and possession over the property in Block No.6, T.S. No.23 (Part) measuring an extent of 1.6 acres in Maduvankarai Village.
3. The temple filed a detailed written statement specifically stating that there was no cause of action for the suit and there was no threat at all as complained by the plaintiff for filing the suit and further, only with an oblique motive, the suit has been instituted against the temple, who has been in possession and enjoyment of the suit property and such fact could be seen from the issuance of patta under Ex.B1 dated 19.02.1992. The judgment and decree passed in O.S. No.38 of 1948, dated 04.04.1950, ordering delivery of possession of the suit property in favour of the temple clearly shows that the suit property belongs to the defendant/temple. In fact, the judgment-debtor, who is the grand-father of the plaintiff, did not even take any step to challenge the correctness of the said decree passed in favour the temple/judgment holder and such aspect would go to show that there cannot be any veracity in the claim of the plaintiff that her grandfather and herself had perfected their title in view of their continuous occupation and, in fact, they can only be termed as encroachers, who unlawfully retained the possession although there was a decree against them for ejectment. That apart, after passing of the judgment and decree in O.S. No.38 of 1948 against the plaintiff's grandfather and others, though they surrendered possession to the temple and left the place once for all, subsequently, they got into possession only to an extent of 1.5 grounds unlawfully, which compelled the temple to file another suit in O.S. No.3002 of 1966 on the file of the City Civil Court, Madras, and that also came to be disposed of on 30.12.1969 again giving a finding that although the Temple proved its title to the suit property, they allowed the plaintiff to be in possession of the suit property beyond the statutory period. Therefore, when the lawful title over the suit property vests only with the temple, they are entitled to protect the property from the encroachers like the plaintiff and she has no locus standi to plead or allege that her possession, which is nothing but a clear trespass over the suit land, is sought to be disturbed by the temple. The suit filed by the plaintiff is nothing but an attempt to get an order of injunction so as to sell out the temple property to innocent third parties in order to make more money. Also, there was no patta issued in favour of the plaintiff in respect of the suit property and the said aspect is verified by the temple from the TSLR (Town Survey Land Register). Further, on the date when the Tahsildar is said to have made signature in the revenue records said to be standing in favour of the plaintiff, he retired from service, therefore, it goes without saying that the plaintiff forged even the revenue records. There was never any threat as alleged by the plaintiff, because, it could be seen that there has been no police complaint ever made by the plaintiff against the temple authorities for posing any threat of dispossession before coming to court by filing the suit. According to the temple/defendant, the above background would clearly indicate that the suit was a frivolous one filed with ulterior motives to achieve oblique purpose and hence, the same is liable to be dismissed.
4. Before the trial court, the plaintiff examined herself as PW-1 and she marked Exs.A1 to A5 documents while on the side of the defendant-temple, one Saravanan was examined as DW-1 and Exs.B1 to B7 documents were marked. The trial court by framing the following issues,
a) whether the suit is not maintainable without the relief of declaration?
b) whether the plaintiff is in possession of suit property?
c) whether the defendants 2 to 6 are in the possession of the suit property as sharers?
d) whether the plaintiff is entitled for the permanent injunction?
e) to what relief?
and also framing four other additional issues, by its judgment dated 05.03.2004, decreed the suit as prayed for by holding that the plaintiff is in possession of entire property and she cannot be evicted without due process of law on the only ground that the plaintiff's grandfather, even after passing of the judgment in O.S. No.38 of 1948, continued to be in possession.
5. Having regard to the categoric findings given in the Judgment and decree passed in O.S. No.38 of 1948 making it clear that the suit properties belong to the defendant/temple and such verdict never having been challenged in appeal by the plaintiff's grandfather and also with reference to the first principle of law that no order of injunction can be granted against the true owner of the property, the temple moved an appeal before the first appellate court by filing A.S. No.169 of 2004. The said Court, after considering the appeal filed by the temple and also another appeal filed in A.S. No.243 of 2004 filed by other legal heirs of Sengeni Naicker questioning the judgment of the trial court in granting the relief in favour of the plaintiff to their exclusion, by judgment dated 28.03.2006, confirmed the judgment and decree passed by the trial court by dismissing the appeals with an observation that even though the temple had title to the suit property, they had lost the same due to non-enjoyment and by allowing the plaintiff and her predecessors to perfect title by way of adverse possession.
6. Aggrieved by the concurrent judgments of the courts below, the temple has come up with S.A. No.1257 of 2007 and the other two Second Appeals in S.A. Nos.509 and 510 of 2012 have been filed by the relatives of R1-Sankari insofar as grant of relief by the courts below in favour of the plaintiff alone to the exclusion of the appellants/other legal heirs of Sengeni Naicker.
7. At the time of admission, the following substantial question of law has been framed for consideration in S.A. No.1257 of 2007:-
" Whether the 1st respondent claim of adverse possession against the temple property in view of specific prohibition under Section 109 of the Tamil Nadu Hindu Religious and Charitable Act, 1959 and whether the lower Appellate Court's finding based on the adverse possession is sustainable?"
8. Mr.S.Parthasarathy, learned Senior Counsel appearing for the appellants therein, who are said to be other legal heirs of Sengeni Naicker, even though forcibly argued regarding maintainability of S.A. Nos.509 and 510 of 2012, even at the first instance, it may straight away be mentioned that those appeals are liable to be dismissed at the admission stage itself having regard to the convincing arguments/objections made by Mr. N.R. Nixon, learned counsel appearing for R-1 in those appeals on the ground that no Second Appeal is maintainable when there is no decree passed against the appellants in S.A. Nos.509 and 510 of 2012. He submitted that, as per the provisions in the Civil Procedure Code, an appeal will lie only against a decree or an order passed, from which, an appeal is expressly allowed by Order-43 Rule-1 CPC. When no appeal can lie against a mere finding for the simple reason that the Code does not provide for such appeal, the present Second Appeals filed are not maintainable as they have been directed against mere findings recorded by the courts below. According to him, in view of the settled legal position that when there is no decree executable passed against the appellants in S.A. Nos.509 and 510 of 2012, these two Appeals will not lie against the impugned judgments passed only against the temple. Further, Order-43 Rule-1 also expressly states that an appeal will lie only against a decree. Such submissions of Mr.Nixon is also supported by the decision of the Apex Court in Ganga Bai v. Vijay Kumar (1974 (2) SCC 393), and relevant observations therein are extracted below, " 16. Under section 96(1) of the Code of Civil Procedure, save where otherwise expressly provided by the Code or by any other law for the time being in force, an appeal lies from every decree passed by any court exercising original jurisdiction, to the court authorised to hear appeals from the decisions of such court. Section 100 provides for a second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court. Section 104(1) provides for appeals against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law for the time being in force an appeal shall lie "from no other orders". Clause (i) of this section provides for an appeal against "any orders made under Rules from which an appeal is expressly allowed by rules". 'Order 43, Rule 1 of the Code, which by reason of clause (i) of section 104(1) forms a part of that section, provides for appeals against orders passed under various rules referred to in clauses (a) to (w) thereof, Finally, section 105(1) of the Code lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a court in exercise of its original or appellate jurisdiction.
17. These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under, rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. ....."
By applying the above ratio laid down by the Apex Court, this Court has no hesitation to hold that Second Appeal Nos.509 and 510 of 2012 are not maintainable as no decree was passed against the appellants therein and those two appeals are liable to be dismissed.
9. Mr.N.Sathyamoorthy, learned counsel appearing for the appellant in S.A. No.1257 of 2007, at the first instance, took the Court to paragraph No.50 of the impugned judgment and submitted that when the courts below have accepted that the suit property covered in Block No.6, T.S. No.23 (Part) measuring an extent of 1.6 acres in Maduvankarai Village, belongs to the temple and such conclusion having become final, the contrary finding that the plaintiff and her predecessors perfected title to the property by adverse possession and therefore, they cannot be evicted except under due process of law, is against the law of land particularly in reference to Section-109 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (in short 'Act'). It was further argued that when the Limitation Act 1963 cannot be applied to any suit for possession of immovable property belonging to any religious institution or for possession of any interest in such property, the above said finding in the impugned judgment of the court below that the plaintiff and her predecessors were in adverse possession of the property and thereby, perfected their title is liable to be interfered with. When in the earlier suit - O.S. No.38 of 1948 filed by the temple, decree came to be passed for delivery of possession in favour of the temple as against the plaintiff's predecessors and the same also became final as the plaintiff's predecessors did not even prefer any appeal against the same, it goes without saying that the fact that both the title and possession are with the temple has been accepted by the plaintiff and her forefathers. Admittedly, when the temple is a religious institution and the suit property belongs to it, the plea of adverse possession against the temple/religious institution should not have been entertained by the courts below. The reason being, when the temple, by virtue of the judgment dated 04.04.1950 passed in O.S. No.38 of 1948, became entitled to execute the said decree till 1962 and when the temple also filed O.S. No.3002 of 1966 for delivery of vacant possession of the suit property and also for permanent injunction to restrain Sengeni Naicker and others from trespassing into the suit property and the suit being one for delivery of vacant possession, dismissal of the said suit by recording a finding against the temple that the plaintiff herein and her forefathers, by their continuous adverse possession, perfected their title, is against the provisions of Section 109 of the Act. He further submitted that this Court has got a duty to set aside the perverse findings and the ultimate conclusions reached by the Court below and to restore the spirit of law having regard to Section 109 of the Act.
10. In support of his submissions, learned counsel for the petitioner relied upon a catena of decisions to contend that, by virtue of Section 109 of the Act, unless the plaintiff can show that they have perfected title by adverse possession prior to 30th September, 1951, there is no question of the temple's title to the property being lost by the law of limitation.
By referring to the decision reported in 2007-3-MLJ-85 (Subramaniam v. Sri Devanahaswami devasthanam), it is submitted that the plea of the plaintiff that they derived title to property by way of adverse possession is not sustainable in view of Section 109 of the Act. Therefore, when, admittedly, the property belongs to the temple/religious institution, as per the principles of 'parent patriarch', court is the custodian of the idol property. In other words, the plea of adverse possession cannot be allowed to be raised since the temple land is protected under Section 109 of the Act.
By pointing out another decision reported in 2008-2-LW-617 (Arulmigh Kallalagar Thirukoil, Alagarkoil v. S.S. Rajaram & 9 others) for the proposition that in respect of temple properties, the plaintiff is not entitled to raise the plea of prescription, learned counsel pleaded that oblivious of the provisions in the Act and the clear ratio laid down by this Court as well as the Apex Court, both the courts below decided the lis completely against the spirit of Section 109 of the Act.
Finally, learned counsel placed reliance upon a decision in State of Haryana v. Mukesh Kumar & Ors (2011-5-LW 725) in which the Hon'ble Apex Court by questioning as to how 12 years of illegality can suddenly be converted to legal title, observed that a person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner.
On the basis of the above submissions, learned counsel pleaded to allow the appeal filed by the Temple by setting aside the judgments of the courts below.
11. Mr.Nixon, learned counsel appearing for the plaintiff/R1 in the appeals contended that when the defendant-temple, appellant in S.A. No.1257 of 2007, already filed a suit before this Hon'ble Court in C.S. No.1668 of 1992 against the plaintiff/1st respondent herein and others and so far as the suit property is concerned, the judgment passed by the competent civil court in O.S. No.3002 of 1966 on 30.12.1969 having become final clearly deciding against the temple/appellant that the plaintiff/R1 had already perfected title by way of adverse possession, the challenge made by the temple against the correctness of the impugned judgments is not legally sustainable and hence, the Second Appeal filed by the temple may have to be dismissed. According to him, even assuming for a moment that the plea of adverse possession cannot be allowed to be raised by the plaintiff/R1 in respect of the religious property, the temple cannot succeed for the simple reason that the principles of res judicata will apply to the temple having regard to the suit filed in C.S. No.1668 of 1992 before the High court.
In support of his submissions, learned counsel referred to a decision in M.B.Subramaniam v. A.Ramasamy Gounder (2009-3-CTC-59) to say that person found to be in exclusive possession of the property is entitled to get protection from Court in the form of injunction. He also referred to a decision of the Apex Court in Rame Gowda (D) by Lrs. v. M.Varadappa Naidu (D) by Lrs. & Anr. (2004-3-LW-143) to say that law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner.
By referring to a decision of this Court reported in 2000 (III) CTC 200 (Subba Reddiar v. Vasantha Ammal), learned counsel would submit that the present Second Appeal filed by the temple cannot be maintained for the reason that both the courts below have concurrently held against the defendant-temple on the issue that the plaintiff perfected title and therefore, this Court cannot interfere with the concurrent findings on fact however erroneous such findings are.
By placing reliance upon another decision of this Court in President, Thanjavur Diocese Society v. Nirmala Nagar (2008-3-MLJ-723), learned counsel reiterated his submission that there can be no interference in this Second Appeal since both the courts below have considered the evidence on record and come to the conclusion that it is a case for granting injunction in favour of the plaintiff. According to him, the ultimate conclusion based on the clear findings neither being erroneous nor perverse, the Second Appeal filed by the temple may have to be dismissed.
12. I have carefully considered the rival submissions advanced on either side.
It is an admitted fact by the parties that the temple had filed O.S. No.38 of 1948 against R1/Plaintiff's grand father ie., father of Sengeni Naicker, seeking delivery of possession of the property covered in Survey No.98 to an extent of 1 acre 78 cents in Maduvankarai hamlet of Velachery Village No.219, previously Saidapet Taluk now within the limits of Madras City. The civil court allowed the suit accepting the case of the temple and passed the judgement, dated 04.04.1950, granting a decree for delivery of possession by ordering ejectment of the grandfather of the plaintiff ie., father of Sengeni Naicker, from the suit property, and it is also an admitted fact that no Appeal whatsoever was filed by the plaintiff's grandfather. In view of the finality reached in respect of the suit property by the parties accepting the verdict rendered in O.S. No.38 of 1948 that the suit property belongs to the defendant/appellant temple, such a clear and categoric judgment between the same parties will bind them in law. While so, the plea of adverse possession as raised by the plaintiff/R1 can never be accepted by virtue of Section 109 of the Act. This clear position has been well reiterated in the decision reported in 2007-3-MLJ-85 (cited supra) to the effect that where the suit property belongs to Religious Institution ie., temple, as per the principle of 'Parent Patriarch', court is the custodian of the idol property and disputed land belongs to idol and the plea of adverse possession is not maintainable since temple land is protected under Section 109 of the Act. Further, in the present case, the temple had filed O.S. No.3002 of 1966 on 24.08.1966 seeking a decree for delivery of possession of the land in question against the plaintiff's father-Sengeni and others, but in the said suit, although a finding was recorded in favour of the temple, it was observed that they had lost the same by non-enjoyment for about 12 years. Even though the said finding is not the subject matter in the appeals before this Court, it must be observed that the said trial court wrongly non-suited the temple by holding that they were not in possession of the property for 12 years from the date of the judgment in O.S. No.38 of 1948 as though the temple had filed the suit for execution. As a matter of fact, adverse possession must be adequate in continuity, in publicity and extent and a plea is required at least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. In the present case, the temple had originally filed O.S. No.38 of 1948 for recovery of possession against the plaintiff's grandfather and the same was decreed on 04.04.1950, from which date, for a period of 12 years ie., till 03.04.1962, statutory time limit remained with the temple to execute the decree. However, being aware of the legal position that time to execute the decree was lost on 03.04.1962, the temple/appellant again filed another suit in O.S. No.3002 of 1966 for delivery of vacant possession of the suit property and also for permanent injunction to restrain Sengeni Naicker and others from trespassing into the suit property. But, the civil court dismissed the said suit filed by the temple with a finding against the temple that R1 herein had perfected title by adverse possession as though she had remained in continuous possession of the suit property beyond statutory period of 12 years. Thereafter, when the plaintiff herein filed O.S. No.6552 of 1992 for bare injunction against the temple, again, the learned trial Judge decreed the suit as prayed for on the basis of the wrong finding, the plaintiff had perfected tiled by adverse possession. The Appeal filed before the first appellate court also came to be dismissed. In this context, it is apt to refer to a Full Bench decision of this Court in Srinivasan and 6 others v. Sri Madhyarjuneswaraswami, Pattavaithalai, Thiruchirappalli District by its Executive Officer at Pattavaithalai Devasthanam and 5 others reported in 1998 (II) M.L.J Page 722 by extracting below the relevant portion there from, ".... It is by now well settled that even in cases where finality is accorded to any decision or order, there are certain well settled exceptions and proved the existence of such exceptional factors, the Civil Court is entitled to nullify any or all such decisions. Similarly, even in cases where the principles of res judicata are rendered applicable, the jurisdiction of the competent Civil Court to go into the question and find out whether the necessary ingredients to apply the principles of res judicata exist in a given case or not cannot be denied to the Civil Court and from the mere fact of according finality to the orders or decisions rendered under the Act or the application of the principles of res judicata a total or complete bar or ouster of the jurisdiction of the Civil Courts for all and any purpose cannot be automatically inferred or implied. Before a plea of res judicata can be given effect to, it must be sufficiently pleaded and established that the litigating parties must be the same, that the subject matter of the suit and the other proceedings also are identical, that the questions arising in the suit and the other proceedings were directly and substantially in issue and the same was finally decided and that too by an authority or court of competent jurisdiction."
13. It must also be mentioned that per se, the concurrent findings of the courts below placing reliance upon the wrong judgment rendered in O.S. No.3002 of 1966 completely overlooking Section-109 of the Act are wholly unsustainable. At this juncture, it is proper to extract Section 109 of the Act, " 109.Central Act 36 of 1963 not to apply for recovery of properties of religious institution.--
Nothing contained in the Limitation Act, 1963 (Central Act 36 of 1963) shall apply to any suit for possession of immovable property belonging to any religious institution or for possession of any interest in such property."
It is also relevant to the same provision that stood before substitution, " 109.Property of religious institution not to vest under the law of limitation after the 30th September, 1951.-- Nothing contained in any law of limitation for the time being in force shall be deemed to vest in any person the property or funds of any religious institution which had not vested in such person or his predecessor-in-title before the 30th September, 1951. "
A mere reading of the above provision gives a direct answer to the core question of law for consideration in S.A. No.1257 of 2007. Admittedly, the suit property belongs to the temple/religious institution as on the date of filing of the suit in O.S. No.38/48 as well as O.S. No.3002 of 1966 and even to-day. Therefore, unless the plaintiff shows that they had perfected title by adverse possession prior to 30th September, 1951, there is no question of the temple's title to the property being lost by the law of limitation. At the risk of repetition, it must be mentioned that in the judgment passed in O.S. No.38 of 1948 on 04.04.1950, while ordering delivery of possession in favour of the temple and against the grandfather of the plaintiff, a definite finding was recorded that the title and ownership regarding the suit property clearly belong to the temple. That being so, when Section 109 of the Act is explicit in terms that the law of limitation is not applicable to any immovable property belonging to any religious institution or for possession of any interest in such property, the plea of adverse possession by the plaintiff or her predecessors-in-title would run contrary to the said provision. Therefore, as rightly pointed out, as per the principle of 'parent patriarch, court is the custodian of the idol property and it must be held that the plea of adverse possession is inapplicable and not sustainable since the temple land is legally protected under Section 109 of the Act. In this regard, it is relevant to extract below the following observation made in the decision reported in 2007-3-MLJ-85 (cited supra), " 18. Admittedly, the suit property belongs to Religious Institutions. As per the principle of 'parent patriarch' court is the custodian of the idol property. The disputed land belongs to the idol. The documentary evidence would show that the suit property belongs to the idol. So, the decision relied on by the counsel for the respondent/plaintiff squarely applicable to the case on hand. Since, the cases referred in decisions cited by the counsel for the appellants/defendants are not related to the facts on hand, I am of the view that the said decisions are not applicable to the case on hand. Hence, this point is in favour of the plaintiff."
14. In view of the above provision that the law of limitation is not applicable to religious institutions, both the courts below have miserably failed to discharge their role as custodian of the religious property, rendering the impugned judgments totally contrary to Section 109 of the Act. Such apparent and manifest error and illegality in the findings of the courts below cannot be allowed to continue. Now, it is more pertinent to refer to the observation below made in the decision reported in 2008-2-LW-617 (cited supra), " 30. At this juncture, I would like to refer to Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowments Act. It is well known that the current Section 109 of the Act came to occupy the statute book by virtue of Tamil Nadu Act 28 of 2003. A question might arise as to whether Section 109 of the Act, is having retrospective effect. I am of the considered opinion that this Court need not delve deep into those facts for the simple reason that even repealed Section 109 of the act is an embargo to plead prescription. As such, Section 109 of the Act which was repealed, is reproduced hereunder for ready reference:
109. Property of religious institution not to vest under the law of limitation after the 30th September, 1951.- Nothing contained in any law of limitation for the time being in force shall be deemed to vest in any person the property or funds of any religious institution which had not vested in such person or his predecessor-in-title before the 30th September 1951.
31. As such, even as per the repealed Section 109 of the Code of Civil Procedure which was in vogue as well as at the time of adjudication of the lis by the trial Court, the defendants were not entitled to raise the plea of prescription and in such a case, the trial Court was not justified in assuming and presuming that the defendants by their long possession, established their title to it. Oblivious of these provisions, the trial Court decided the lis which requires interference by this Court.
In line with the said ratio and what is observed above, this Court is of the clear view that plaintiff-R1 cannot succeed in law on the issue of adverse possession as such plea can never be raised in the special circumstance that the property is not of common nature but it is a religious institution which is clearly protected in terms of Section 109 of the Act as repeatedly mentioned above.
15. By way of summing up the issues discussed above, it would be better to add that the concurrent findings are bad for more than a couple of clear reasons.
Firstly, when the temple's suit in O.S. No.38 of 1948 for recovery of possession was decreed against the plaintiff on 04.04.1950, the said decree was valid for execution till 03.04.1962. However, when another suit was filed in O.S. No.3002 of 1966 for delivery of vacant possession of the suit property and also for permanent injunction to restrain Sengeni Naicker and others from trespassing into the suit property, to gain legal title in respect of the land in question, the plaintiff should have pleaded and established all facts necessary to establish adverse possession. But, this has not been established, because, legally, they cannot establish with hardly 4 years. Axiomatically, O.S. No.38/1948 filed by the temple was decreed on 04.04.1950. Therefore, till 03.04.1962 ie., for 12 years, time to execute the decree was available. While so, the dismissal of O.S. No.3002 of 1966 filed by the temple within 4 years from the expiry of the 12th year was against the law and equity.
Secondly, when the 12 years statutory period from 1962 was not even completed, the question of perfecting adverse possession in respect of the suit land does not arise. This significant aspect has been completely lost sight of by both the courts below.
Thirdly, Section 109 of the Act which was brought into the statute book with effect from 30th September, 1951, makes it clear now that nothing contained in the Limitation Act shall apply to any suit for possession of immovable property belonging to any religious institution or for possession of any interest in such property. Admittedly, the suit land belongs to the religious institution/temple. That apart, as admitted by both sides, the judgment passed in O.S. No.38 of 1948 on 04.04.1950 also shows that the appellant/temple succeeded in getting a decree for delivery of possession of the suit land. From 04.04.1950 till 03.04.1962, when the appellant/temple has got time to execute the decree and the same also, by lapse of time, expired, the question of plaintiff perfecting tittle to the suit land by adverse possession does not arise at all. Even this legal aspect has been completely overlooked by the courts below.
Fourthly, this Court cannot conclude this judgment without making a specific mention of the observations of the Apex Court made on the issue of adverse possession in the decision reported in 2011-10-SCC-404 (State of Haryana v. Mukesh Kumar). Relevant paragraphs from the said decision are extracted below, "47. Adverse possession allows a trespasser - a person guilty of a tort, or even a crime, in the eyes of law - to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible.
48. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change.
49. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country.
50. It is indeed a very disturbing and dangerous trend. In our considered view, it must be arrested without further loss of time in the larger public interest. No Government Department, Public Undertaking, and much less the Police Department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in this case."
In the above said judgment, the Hon'ble Apex Court, while expressing deep anguish against persons claiming adverse possession, in fact, asked the Parliament necessarily to consider abolition of the concept of adverse possession or at least to make suitable amendments with a cautioning that, as otherwise, people would be left with no protection and there will be anarchy in the entire country.
16. In the present case, the plaintiff has not perfected her title as she was there only for four years from the expiry of 12 year period of limitation as mentioned above, therefore, the concurrent findings of the courts below that the plaintiff perfected title by adverse possession are to be necessarily interfered with. Having regard to the above recent Judgment of the Apex Court in Mukesh Kumar's case, the decision relied on by Mr.Nixon in Rame Gowda's case (referred supra) cannot be made applicable here for the reason that the plaintiff already suffered a decree for recovery of possession. Therefore, once again asking the Temple to file a suit for recovery of possession is absolutely unacceptable. For all the above detailed reasons, this Court answers the sole question of law in favour of the appellant/temple and against the first respondent/plaintiff.
17. In the result, S.A. No.1257 of 2007 filed by the temple is allowed, setting aside the judgment and decree passed by the courts below. S.A. Nos.509 and 510 of 2012 stand dismissed. There will be no order as to costs. Connected Miscellaneous Petition stands closed.
08.07.2013 Index : yes / no. Internet : yes / no. JI. To 1. Additional District Judge, FTC-II, Chennai. 2. V Assistant City Civil Judge at Chennai.