Madras High Court
Kakshok @ Thulasi vs Arul Prakasam Boopalarayar on 3 November, 2008
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 03/11/2008 Coram THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.445 of 1995 & A.S.No.446 of 1995 and M.P.No.1 of 2008 in A.S.No.446 of 1995 A.S.No.445 of 1995 Kakshok @ Thulasi, 1 Bhava Madam by its Madathipathi Trustee T.R.Gopal Doss (Died) Khakchowk @ Thulasi Bhava Madam by its Madathipathi Trustee T.R.G.Mohandoss Ram Jharokha Shanthi Hanuman Koilm, Rameswaram, ... Appellant (2nd appellant brought on record as appellant as per order dt. 22.11.2004 made in CMP.987 & 992 of 2004) vs. 1.Arul Prakasam Boopalarayar, 2.Packiam Ammal 3.P.Sethu Servai 4.Pushpavalli 5.Subramaniam 6.Lakshmi Ammal ... Respondents A.S.No.446 of 1995 #Kakshok @ Thulasi, 1 Bhava Madam by its Madathipathi Trustee T.R.Gopal Doss (Died) Khakchowk @ Thulasi Bhava Madam by its Madathipathi Trustee T.R.G.Mohandoss Ram Jharokha Shanthi Hanuman Koil, Rameswaram, ... Appellant (2nd appellant brought on record as appellant as per order dt. 22.11.2004 made in CMP.987 & 992 of 2004) vs. $1.Subramania Konar, 2.S.V.Madhavan 3.S.V.Murali Manoharan 4.Indirani 5.Munusamy 6.Vijayalakshmi 7.Mageswari 8.Muthulakshmi 9.Eswari ... Respondents Prayer These appeals have been preferred under Section 96 of CPC against the decree and Judgment dated 21.1.1993 in O.S.No.1 of 1991 and O.S.Nos.16 of 1987 respectively on the file of the Court of Subordinate Judge, Ramanathapuram. !For Appellant ... Mr.S.Kadarkarai, Advocate ^For respondent ... Mr.T.M.Hariharan, Advocate ----- :COMMON JUDGMENT
A.S.No.445 of 1995 has been directed against the decree and Judgment in O.S.No.1 of 1991 on the file of the Court of Subordinate Judge, Ramanathapuram. A.S.No.446 of 1995 has been directed against the decree and Judgment in O.S.No.16 of 1987 on the file of the Court of Subordinate Judge, Ramanathapuram.
2.M.P.No.1 of 2008 in A.S.No.446 of 1995 was filed under Order 41 Rule 27 of CPC to receive the additional documents mentioned below:-
1)Certified copy of the settlement deed dated 06.06.2007 executed by one Nagavalli in favour of the appellant / plainifff.
2)Certified copy of the settlement deed dated 30.05.2007 executed by the respondents 2 and 3 in favour of the petitioner.
3)Certified copy of the settlement deed dated 30.05.2007 executed by the respondents 2 and 3 in favour of the petitioner.
4)Certified copy of the settlement deed dated 28.11.2006 executed by the respondents 2 and 3 in favour of the petitioner.
5)Certified Xerox copy of the Judgment and Decree in O.S.No.149 of 1991 dated 30.04.1996.
6)Certified copy of the Trust Deed dated 12.03.1959.
Out of the above said six documents four documents are subsequent to the filing of the suit. So even if they are allowed to be received as additional documents no useful purpose will be served because they are all in no way going to help to come to a conclusion whether the vendor under Exs.A.19, 20 & 22 viz., Kalikrishana Doss, had any right to execute those documents in respect of the property scheduled to the plaint in favour of D1 to D4. With regard to the other two documents viz., Trust Deed dated 12.03.1959 and the Judgment in O.S.No.149 of 1991 dated 30.04.1996 can be dealt with while proceeding with this judgment.
3.The averments in the plaint in O.S.No.16 of 1987 (A.S.No.446 of 1995) are as follows:-
The plaint schedule properties are trust properties belonging to Sadhus Trust known as "Sri Sempiradhaya Sathus". These trusts are managed by Guru Sizhya Parambara (From Guru to Sishya and so on). According to such practice of succession Ramakrishna dass father of the plaintiff became the Trustee and come to the Management of the trust and its properties. He was incharge of a Trust at Dhanushkodi and also 2 trusts at Rameswaram inclusive of the suit trust. The present suit is in connection with what is known as "Thulasi Bava Mutt"
otherwise known as "Khakchowk" and also Sri Penchamuga Hanuman situate at Seetha Theertham in Rameswaram. In the year 1959 Ramakrishna Dass was in full charge of the trust at Dhanushkodi and put in possession as trustee his younger son Kali Krishna Dass @ Kalyana Dass in charge of the said trust. At the same time he put the plaintiff in charge of the Hanuman Temple and Mutt in Parvatham Village on the principal of Guru Sishya Parambara. The properties are all trust properties and it is to be managed by the Trustee who is known as Mahanth or Madathipathi. The Trustee have no power of alienation and the property should be with the Sishya of the Guru and after him it goes to his Sishya if he is having one or it will go to the other Sishya of the same Guru. Kali Krishna Dass @ Kalyana Dass was not married. He died on 11.3.1986 at Rameswaram hospital. The plaintiff is the other Sishya of the same line of Guru and as such the plaintiff became entitled to the management of the trust and its properties. He is also entitled to the management of the trust as per Hindu Law. The plaintiff is at present in actual possession of the Thulasi Bava Mutt.Seetha Theertham and Sri Panchamuga Hanuman Temple etc., are all belong to the trust. The plaintiff was prevented from taking possession of the schedule mentioned properties belonging to the trust. The plaintiff's brother who was the previous trustee viz., Kali Krishna Dass @ Kalyana Dass had created three documents dated 8th October, 1985, 19th February,1986 and 25th February 1985 respectively. The first document (Sale deed dated 8.10.1985) is in respect of plaint schedule Item No.1 in favour of the first defendant, the second document (sale deed dated 19.2.1986) is in respect of plaint schedule Item No.2 in favour of D2 & D3 and the third document (sale deed dated 25.2.1985) is in respect of plaint schedule Item No.3 in favour of the third defendant. Previous trustee died on 11.3.1986 and the present plaintiff has succeeded his Office of trusteeship. Hence, the suit for recovery of possession of the suit properties and for mesne profits both future and past.
3(a).The first defendant in his written statement would contend that Kali Krishna Dass @ Kalyanadass was the adopted son of Jeyaramadass. Till his death he was leading as a guide and eking his livlihood. The properties sold by Kali Krishna Dass @ Kalyana Dass are all his properites and only with a bad motive to grab at the properties from the vendees of the said Kali Krishna Dass the plaintiff has filed this vexatious suit. The plaint schedule properties do not belong to any trust and not dedicated by any one to the plaint-trust. There is no trust as alleged in the plaint and the plaintiff is not the trustee of the plaint-trust. Kali Krishna Dass died in March-1986. The properties sold by Kali Krishna Dass to the defendants found in possession and enjoyment of Kali Krishna Dass for more than 40 to 50 years. The plaintiff has no right or title in respect of the plaint schedule properties. From the date of sale deed ie. From 8.10.1995 this defendant is in possession and enjoyment of the properties sold under the said sale deed. Hence, the suit is liable to be dismissed.
3(b).The defendants 2 & 3 have filed a joint written statement contending that Kali Krishna Dass @ Kalyana Dass was a guide and from out of the earnings from the said avocation, he had purchased the properties sold to these defendants. The plaint schedule properties do not belong to the plaint-trust. Neither the plaintiff nor his father Ramakrishnadass was appointed as a trustee of the plaint trust. The properties scheduled to the plaint were never dedicated to the plaint trust by any one. The averment in the plaint as to the effect that the plaintiff came as a trustee on the basis of Guru-Sishya relationship has no bearing at all. These defendants are in possession and enjoyment of the properties purchaed by them under the sale deed from Kali Krishna Dass @ Kalyana Dass for more than 30 to 40 years. Before executing the sale deeds in favour of these defendants, these defendants' vendor Kali Krishna Dass was in possession and enjoyment of the same for over 50 to 60 years. The plaintiff made an attempt to trespass into the properties in possession of these defendants. There is no trust in the plaint schedule properties and there is no income derived from out of the suit properties purchased by these defendants from Kali Krishna Dass. Hence, the suit is liable to be dismissed.
3(c).The fourth defendant died pending suit. The fifth defendant remained exparte.
3(d).On behalf of the minors D6 to D10 Court guardian has filed the following written statement:- The minor defendants are not necessary parties to the suit. The suit is not maintainable as against the minor defendants.
3(e).On the above pleadings the learned trial Judge has framed eight issues and one additional issue for trial.
4.The averments in the plaint in O.S.No.1 of 1991 (A.S.No.445 of 1995) runs as follows:-
The plaint schedule properties belong to the plaint trust. On the basis of Guru Sishya relationship the trust is being administered. So as per the said arrangement the plaintiff's father Ramakrishnadass was administering the plaint trust at Rameswaram and another trust at Dhanushkodi. The plaint trust is also known as Thulasi Bava Mutt or "Khachowk". The trustee Ramakrishnadass, father of the plaintiff, stayed at Rameswaram and also administered the trust by name Anuman Koil Trust, in the place called Thaniparuvatham. Bachya Anuman temple and Seetha Theertham also belong to Thulasi Bava mutt. During 1959 Ramakrishnadass came into possession of the said trust and administered the same, and his son Kali Krishna Dass @ Kalyana Dass was entrusted with the trusteeship of Thulasi Bava Trust. Subsequently Ramakrishnadass had given in adoption his son Kali Krishna Dass to one Jeyaram Dass. After the said adoption Kali Krishna Dass was known as Kalyana Dass. The other son of Ramakrishna Dass is Mr.T.R.Gopal Dass, the plaintiff herein. T.R.Gopal Dass was the trustee of Anuman Temple at Thaniparuvatham, Rameswaram. Both the trust were administered by the trustees known as "Maganth". After the death of this trustee his Sishya will become the trustee. After the death of Kali Krishna Dass on 11.3.1986, his brother T.R.Gopal Dass, the plaintiff herein, became the trustee as the disciple of his Guru since Kali Krishna Dass. Kali Krishna Dass died without any hires. To get the possession of some of the properties of the trust, Gopal Dass has filed O.S.No.16 of 1987 before the District Court, Ramanathapuram. The said suit is pending. Kalyana Dass had no right or title in respect of the suit properties to execute the sale deeds. D1, D2, D3, D4, D5 & D6 have purchased the trust properties from Kalyana Dass under sale deeds dated 13.6.1979 (in favour of D1), dated 17.12.1980 (in favour of D2) and dated 7.8.1982 in favour of D3 & D4, dated 2.8.1984 in favour of D5 & D6. The plaintiff requested the defendants to handover possession of the plaint schedule properties / trust properties. The defendants even though agreed to handover possession at first, subsequently at the instance of the defendant in O.S.No.16 of 1987 refused to handover possession of the plaint schedule properties. Hence, the suit for recovery of possession and for mesne profits both past and future. 4(a)The first defendant remained exparte. The second defendant in his written statement would contend that the plaintiff is not the trustee of the plaint trust. There is no trust as alleged in the plaint in existence. The plaintiff has no legal status to file the suit in the capacity of a trustee of the plaint trust. There is not dedication made to the plaint trust in respect of the plaint schedule properties by any one. The plaintiff is not in administration of the plaint schedule properties as a Sishya of his Guru. The plaintiff was never in possession and enjoyment of the plaint schedule properties and he never administered Thulasi Bava Mutt trust at Rameswaram or Anuman Koil Trust at Dhanushkodi. Thulasi Bava Mutt was known as "Khakchowk" Trust. Kali Krishna Dass was given in adoption to Jeyaramdass by his father Ramakrishnadass. Jeyaram Dass is not the brother of Ramakrishnadass. Gopal Dass is not the other son of Ramakrishnadass. After the death of Kalyana Dass, T.R.Gopal Dass, the plaintiff, never became the trustee of the plaint trust and never administered the plaint schedule properties in the capacity of a trustee of the plaint trust. This defendant is not aware of the pendancy of O.S.No.16 of 1987. This defendant never agreed to handover the possession of the plaint schedule properties to the plaintiff at any point of time. The averment that at the instance of the defendants in O.S.No.16 of 1987 this defendant had subsequently refused to handover possession of the suit properties is denied as false. Kalyana Dass has become entitled to the suit properties as per the decree and judgment in O.S.No.73 of 1980. He was given patta No.180 in Rameswaram Village in respect of the plaint schedule properties. As per the sale deed dated 22.11.1983, this defendant had purchased three cents of land in the plaint schedule survey number property, which has been sub-divided as S.No.769/1C/1B. After the purchase, this defendant had constructed a tiled house in it. The defendant is in possession and enjoyment of the plaint schedule properties from the year 1980 onwards. The suit is barred for limitation. Hence, the suit is liable to be dismissed.
4(b)The third defendant had reiterated most of the defence raised in the written statement of the second defendant. Further, he would contend that there was no trust as alleged in the plaint and the plaintiff is not the trustee of the plaint trust and that there was no Guru Sishya relationship maintained for electing the trustee of the trust as alleged in the plaint. The plaint trust was not known as Khakchowk trust & Thulasi Bava Mutt. The adoption of Kali Krishna Dass by Jeyaram Dass is admitted. T.R.Gopal Dass is not the other son of Ramakrishnadas. He was not given in adoption to Parameswaradass. The plaintiff was never in administration of the plaint trust. Kalyana Dass died on 11.3.1986. The plaintiff was never in administration of Thulasi Bava Mutt trust or Panchamuga Anuman Temple at Rameswaram. This defendant along with D4 had purchased 'D' schedule property on 7.8.1982 from Kalyana Dass for sale consideration of Rs.35,000/- and had constructed a house. These defendants have also purchased plaint schedule item No.2 & 3. From 1982 onwards this defendant is in possession of the property purchased under the said sale deed date 7.8.1982. This defendant never agreed to handover possession to the plaintiff at any point of time. This defendant is a bonefide transferee of valuable consideration. The suit is bad for mis-joinder of parties and also for mis-
joinder of cause of action. The suit is barred by limitation.
4(c)The fifth defendant in his written statement would contend that the plaintiff has no legal status to file the suit and there was no trust. The plaintiff is not the trustee. In other respects this defendant would practically adopted the written statement of D3. According to D5, he had purchased 'E' schedule property under the sale deed dated 2.8.1984 for Rs.4,000/- from Kalyana Dass and thereafter he had constructed a thatched house bearing Door No.7/15B. From 1982 onwards this defendant along with his family is residing in the said house. The plaintiff has no cause of action to file the suit. The plaint 'A' schedule property originally belong to Kalyana Dass as per the decree in O.S.No.73 of 1960. A separate patta No.180 in Rameswaram was assigned in the name of Kalyana Dass. This defendant is a bonefide transferee for valuable consideration. The suit is bad for mis-joinder of parties and also for mis-joinder of cause of action. This defendant prescribed title by way of adverse possession to the suit property. Hence, the suit is liable to be dismissed.
4(d) On the above pleadings the learned trial Judge had framed 12 issued for trial.
5.A joint trial was conducted by the learned trial Judge. On the side of the plaintiff, the alleged trusteee of the plaint trust viz. T.R.Gopal Dass has examined himself as P.W.1 and Ex.A.1 to Ex.A.25 were marked. The father of D2 & D3 in O.S.No.16 of 1987 was examined as D.W.1 and Ex.B.1-sale deed dated 12.5.1985 was marked on the side of the defendants.
6.The learned trial Judge after meticulously going through the evidence both oral and documentary has held that the relief asked for under the plaint in both the suits cannot be granted, and dismissed both the suits, which necessitated the plaintiff in both the suits to prefer these appeals.
7.The points for determination in these appeals are as follows:-
1)Whether the plaintiff in both the suits / appellant is a trustee of the plaint trust?
2)Whether the suit are barred by limitation?
3)Whether the decree and Judgment in O.S.No.16/87 and O.S.No.1/1991 on the file of the Court of Subordinate Judge, Ramanathapuram, is liable to be set aside for the reasons stated in the respective memorandums of appeals?
8.Point No.1:- According to P.W.1, plaintiff, the vendor under Exs.A.19, 20 & 22 in favour of D1, D2& D3 and D4 in O.S.No.1 of 1991 executed by Kali Krishna Dass are non-est since the vendor Kali Krishna Dass has no right or title in respect of the plaint schedule properties in both the suits and as a trustee of the plaint trust, he has no right or title to execute those sale deeds in favour of the above said defendants in respect of the properties belong to the plaint trust. Ex.A.25 is the only revenue record produced on the side of the plaintiff to show that S.No.767/2 belongs to Thulasi Bava Dhama Chathiram. Nowhere under Ex.A.25 it it stated that S.No.767/1, 767/2, 767/3 belong to the plaint trust. It is seen from Ex.A.25 that the said properties were never possessed either by the trust or by the trustees of the trust. Column 7 to Ex.A.25 says that as per 10(1) Account Kali Krishna Dass has been incorporated as the holder of patta. Even though patta is not a document of title, it is the bounden duty of the plaintiff to show as correctly held by the learned trial Judge, that there was a registered trust by name Khakchowk @ Thulasi Bava Mutt and its trusteee is T.R.Gopal Dass. Unless the plaintiff proves that T.R.Gopal Dass is the trustee of the Thulasi Bava Mutt @ Khakchowk trust, the relief of recovery of possession of the plaint schedule properties in both the suits on the ground that vendor viz., Kali Krishna Das @ Kalyana Dass had no right to execute Exs.A.19, 20 & 22, sale deed in favour of D1, D2 & D3 and D4 respectively cannot be sustainable. A reading of Ex.A.19-sale deed will go to show that the vendor Kali Krishna Add had derived title under the decree in O.S.No.73 of 1960. Ex.A.3 is the Judgment in O.S.No.73 of 1960, which was filed by the said Kali Krishna Dass, the vedor under Exs.A.19, 20 & 22. The said suit was decreed in favour of the plaintiff viz. T.R.Kali Krishna Das under Exs,A.19, 20 & 22. Ex.A.4 is the decree in Ex.A.3-Suit. The schedule of properties to Ex.A.4-decree is the properties belonging to Khakchowk trust @ Thulasi Bava Mutt. So on the basis of the decree in O.S.No.73 of 1960, Kali Krishna Dass had executed Exs.A.19, 20 & 22. But the question is whether the vendees under Exs.A.19, 20 & 22 got any valid title in respect of the properties purchased under those documents or not. But next question herein is whether the plaintiff has any locus standi to file the suits in the capacity of a trustee of Khakchowk @ Thulasi Bava Mutt. Since there is no material placed before the trail Court to show that Khakchowk @ Thulasi Bava Mutt is a trust and that the plaintiff T.R.Gopal Dass is a trustee of the plaint trust, the learned trial Judge has come to a definite conclusion that the plaintiff is not entitled to the relief asked for under the plaint in both the suits. Hence, I hold on point No.1 that there is not material to hold that the plaintiff Khakchowk @ Thulasi Bava Mutt is a trust and that Mr.T.R.Gopal Dass, plaintiff, is the trustee of the said trust.
9.Point No.2 :- Ex.A.19 is dated 13.06.1979. Ex.A.20 is dated 17.12.1980 and Ex.A.22 is daed 2.8.1984. Even though the defendants have raised a defence in their respective written statements that the suit is barred by limitation, they have not specifically pleaded that they have prescribed title to the suit properties by way of adverse possession. There is no pleading in the written statement as to the effect that the plaintiff is the owner of the properties sold under Exs.A.19, 20 & 22 and that the defendants have prescribed title by way of adverse possession. In the absence of any evidence to show that the defendants have prescribed title by way of adverse possession to the properties scheduled to the plaint in both the suits, it cannot be said that both the suits are barred by limitation. Point No.2 is answered accordingly.
10.Point No.3:-In view of my findings and discussions in the earlier paragraphs, I hold on Point No.3 that the judgment and decree of the learned trial Judge in O.S.No.1 of 1991 and O.S.No.16 of 1987 on the file of the Court of Subordinate Judge, Ramanathapuram, need not be set aside for the reasons stated in the respective memorandums of appeals.
11.The fact that some of the defendants have specifically executed a settlement deed in respect of the properties purchased under the above said sale deeds in the year 2007 in favour of the plaintiff will not derive us to a conclusion that the plaintiff is a trust and T.R.Gopal Dass is a trustee of the said trust. The judgment in O.S.No.149 of 1991 is not for the relif of a declaration that the plaintiff trust is a trust and that T.R.Gopal Dass is its trustee. The said suit was filed only to redeem a previous mortgage in respect of the properties scheduled to the plaint in O.S.No.149 of 1991. There is no material placed before this Court to show that the properties scheduled to O.S.No.149 of 1991 is the properties scheduled to this plaint also. If the properties scheduled in O.S.No.149 of 1991 is a property under Exs.A.19, 20 & 22, then certainly the vendees under Exs.A.19, 20 &22 would have been arrayed as defendants in O.S.No.149 of 1991. The defendants in O.S.No.149 of 1991 are not parties to either of these suits herein. The other document dated 1.3.1959 is a trust deed executed by Sri Rangathri in favour of one Shanthidass. The said document was produced as an additional document to show that on the basis of Guru Sishya relationship the trustees were appointed for the plaint trust. But as I have already observed there is no document produced to show that the plaint trust is a registered trust and that T.R.Gopal Das is its trustee. Hence, M.P.No.1 of 2008 in A.S.No.446 of 1995 filed under Order 49 Rule 27 of CPC is also liable to be dismissed.
12.In fine, the appeals are dismissed confirming the decree and Judgment in O.S.No.1 of 1991 and O.S.Nos.16 of 1987 respectively on the file of the Court of Subordinate Judge, Ramanathapuram. No costs. Connected M.P.No.1 of 2008 is also dismissed.
ssv To, The Subordinate Judge, Ramanathapuram.