Madras High Court
Kalapatti K.M.Ponnusamy vs V.M.Thangavelu on 16 July, 2015
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 16.07.2015 Coram: THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI S.A.No.1535 of 2005 Kalapatti K.M.Ponnusamy .. Appellant vs. 1.V.M.Thangavelu Ex.President Coimbatore District Congress Committee 2.Dr.S.N.R.Venkatesalu Claiming to be a Managing Trustee, Sri Ramakrishna Hospital, Coimbatore. 3.K.P.S.Mani .. Respondents Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 28.03.2005 made in A.S.No.28/2004 on the file of the Principal District Judge, Coimbatore confirming the judgment and decree dated 18.11.2003 made in O.S.No.643 of 1981 on the file of the Principal Subordinate Judge, Coimbatore. For Appellant : Mr.S.V.Jayaraman, SC for M/s.D.Rajagopal For Respondents : Mr.G.Masilamani, SC for V.Nicholas -R1 & R3 JUDGMENT
The unsuccessful sixth defendant is the appellant herein. The suit was originally filed by the Coimbatore District Congress Committee represented by its President and one S.N.R.Chinnaswamy Naidu against one C.Subramaniam and U.K.P.Natarajan for declaring that the second defendant U.K.P.Natarajan is not a trustee of District Congress Committee and for issuing injunction directing him to deliver possession of the trust property more fully described in the plaint schedule and for issuing permanent injunction restraining the second defendant from operating the bank account of the District Congress Committee with the Bank of Baroda, Coimbatore either directly or through any person authorised by the second defendant and for directing the second defendant to render true and proper accounts of the funds and property of the trust for the last three years.
2.According to the plaintiffs, the suit property was purchased in the name of the second plaintiff S.N.R.Chinnaswamy Naidu, out of the funds of the District Congress Committee by virtue of a sale deed dated 20.6.1958 and a trust was created in respect of the suit property vide registered trust deed dated 21.08.1961 and the second plaintiff, first defendant and the person holding the office of the President of the first plaintiff were appointed as Trustees to be in the management of the same. The second plaintiff and the first defendant were appointed as life trustees for their lives and the second defendant was during the relevant point of time one of the members of the District Congress Committee. While so, during 1969, there was a vertical split in the party and there were two groups i.e., Congress (J) and Congress (O) and the second defendant joined the rival organisation and started acting against the interest of the Trust posing himself as a trustee and became disqualified to manage and to be in possession and control of the funds and property belonging to the trust. By contending so, the suit came to be filed for the reliefs as stated supra.
3.The suit was, during the pendency of the same, subjected to amendment not only regarding the cause title, but also regarding the persons against whom the relief was sought for. Regarding the cause title, the first plaintiff was amended as K.N.Kumarasamy in the capacity as President, Coimbatore District Congress Committee, in the place of Coimbatore District Congress Committee rep. by its then President and thereafter one V.M.Thangavelu, who was appointed as President in the place of K.N.Kumarasamy, was substituted for K.N.Kumarasamy. During the pendency of the suit, the second defendant U.K.P.Natarajan died in 1992. The defendants 3 to 5 by names C.V.Kandasamy, N.Rathnam @ Thambi and R.Sengaliappan, who took the control of the trust property and were managing the affairs of the same, were impleaded. Subsequently, the fourth defendant died and the sixth defendant K.M.Kalapatti Ponnusamy, who is the appellant herein and who was managing the affairs of the property along with the defendants 3 and 5 was brought on record. While so, the second plaintiff died and one Dr.S.N.R.Venkatesalu was appointed as one of the trustees of District Congress Committee by resolution dated 23.2.1996 and was impleaded as the third plaintiff in the suit. Consequently, the suit reliefs were amended, thereby claiming the same against the defendants 3, 5 and 6. It is also clarified in the plaint that the plaintiffs 1 and 3, who are the President and Trustee of Coimbatore District Congress Committee, are entitled to prosecute the proceedings and seek the relief of declaration and possession of the property and also other reliefs. The seventh defendant K.P.S.Mani was also impleaded as one of the parties to the suit.
4.During the pendency of the suit, the defendants 3 and 5 were at the instance of the plaintiffs, exonerated.
5.The second defendant during his life time filed his written statement and opposed the suit reliefs by stating that the owner of the property is the first plaintiff and the same by itself is not a trust and the document dated 20.8.1967 came to be executed only for the purpose of administering the property on behalf of Coimbatore District Congress Committee and no trust was created in respect of the same. According to the second defendant, the first plaintiff not being a registered body and also not a juristic person, is incompetent to file the suit. The first plaintiff is only a fluctuating body who cannot hold properties or initiate proceedings and is only a political party. It is also his case that the persons referred to in the trust deed were incompetent to deal with the property and they have no right or locus standi to form a trust and have no right to manage or claim the property and the appointment of the second plaintiff and the first defendant as trustees is opposed to law and against the principles of natural justice and is invalid. It is also the case of the second defendant that after the split in the party, the parent party was known as Congress (O) party and the syllable (O) means organisation and the same continued to be in possession and enjoyment of all assets including buildings of the Old congress party and Congress (O) is held so by the Revenue Divisional Officer-cum-Executive first class Magistrate in MC.1/1970 initiated under section 145 Cr.P.C. The Other group broke away from the Congress Party and formed themselves into a separate party, which came to be known as Congress ( I ) Party and as per the order of the RDO-cum-Executive first Class Magistrate, they were not permitted to enter the building, in which, Congress (O) party have been in possession and enjoyment. Thereafter, in 1971 Congress (O) Party got merged with Janata Party which is the owner and in possession of the property and all the assets and liabilities of Congress (O) Party were taken over by Janata party and the second plaintiff S.N.R.Chinnaswamy Naidu was only a member of congress (O) Party and continued to be a member of Janata Party, as such, he is not competent to maintain the suit and the first defendant also did not question the title of either the Janata Party or their predecessors-in-title and Congress (O) party and thereafter Janata party have been in possession of the buildings of the erstwhile congress party and took over the right, title and interest of the properties of all the congress (O) Party. As the second defendant has been enjoying the property as full owner without any interruption, continuously and openly exercising all the rights of ownership paying taxes etc, the claim made by the plaintiffs is barred by limitation and by adverse possession. It is further stated in the written statement that the framing of suit is defective and the suit is bad for non-joinder of necessary parties i.e., for not impleading all the so-called trustees and for not impleading the current owner of the property i.e, District Janata party. The suit is also bad for mis-joinder of parties i.e., second defendant, who was only the President of District Janata Dal Party and who represented the interest of the Janata Party and had no independent right.
6.The sixth defendant after brought on record also filed his written statement reiterating the same stand.
7.The contesting parties have, in support of their respective claims made in the suit, examined the present and past Presidents of Coimbatore District Congress Committee and their witnesses as PW1 to PW3 and the sixth defendant as DW1 and produced Exs.A1 to A7 and Exs.B1 to B69 documents.
8.The trial court on the basis of the available evidence, arrived at a conclusion that the suit property belongs to Trust vide Ex.A2 and the trustees are entitled to file the suit and filed the suit in such capacity and the suit is hence maintainable, having the second plaintiff and the first defendant as life trustees and having a third trustee the first plaintiff, then President of District Congress Committee and even after the split, the congress party has been in existence and as per the terms of the trust deed, the trust property has been in possession and management of Coimbatore District Congress Committee and no evidence is produced to show that the same was taken over by Janata party and transferred in the name of Janata party and the possession of the contesting defendant is not shown to be in such capacity, in which they claimed to be in possession and enjoyment of the property and the documents produced on the side of the defendants do not improve the case of the defendants, as the same do stand either in the name of District Congress Committee or obtained after the suit and the possession and enjoyment of the sixth defendant is without any right over the suit property and the 6th defendant cannot be permitted to claim himself as trustee of District Congress Committee, but is bound to deliver possession of the suit property to the plaintiff trust and is bound to render true and proper accounts of funds and properties of the Trust.
9.Aggrieved against the same, the only contesting sixth defendant filed AS.28/2004. The lower appellate court by judgment and decree dated 28.3.2005, after duly appreciating and anlaysing the evidence and going into the correctness of the findings rendered by the trial court based on such evidence, found that the trust was duly created for specific social and welfare objects and the trust property was duly delivered to the trust, as per the terms of the trust deed and the trust property cannot be subjected to political changes and the second defendant who is the president of Janata Party, has no manner of right over the property and the defendants 3, 5 and 6 are not entitled to the suit property and as they are not the trustees of the trust and without any right to manage the suit property, they are bound to deliver possession of the suit property and the lower appellate court, on the basis of such findings, confirmed the judgment and decree of the trial court and dismissed the appeal. Hence, this second appeal by the sixth defendant before this Court.
10.The second appeal was on earlier occasion dismissed on 30.1.2006 by upholding the findings of the courts below and by finding that no question of law much less substantial question of law arose, warranting the admission of the second appeal under section 100 of the Civil Procedure Code. Aggrieved against the same, the sixth defendant preferred further appeal by way of SLP before the Supreme Court. The Apex Court, after granting special leave and after taking appeal as Civil Appeal No.4442/2007, disposed of the same by setting aside the impugned order of the High Court and remanded the matter to the High Court for fresh disposal, on merits and in accordance with law, after formulating substantial question of law regarding maintainability of the suit and other substantial questions of law, which may arise for consideration.
11.After remand, this court by order dated 24.9.2013, framed the following substantial question of law:
"Whether the finding of the courts below are correct and justified that the suit one filed is maintainable under law?
12.Heard the rival submissions made on both sides and perused the records.
13.The reliefs sought for in the suit are in respect of the property bearing Door No.7/48 (old No.8/42) New Devy & Co. lane, Coimbatore more fully described in the suit schedule. Admittedly, the property was purchased vide Ex.A1 sale deed dated 20.6.1958. Though the sale deed was executed in the name of the second plaintiff S.N.R.Chinnasamy Naidu, who was the then President, Coimbatore District Congress Committee, the property was admittedly purchased for and on behalf of Coimbatore District Congress Committee from and out of the funds of District Congress Committee. After purchasing the property in the year 1958, the trust was created in respect of the same vide Ex.A2 registered Trust Deed dated 21.08.1961. As per the recitals contained therein, Coimbatore District Congress Committee, with whose funds, the property was purchased and which has been in possession and enjoyment of the property, passed a resolution on 26.12.1959 to create a Trust in respect of the property and the Board of Trust consists of (i)the second plaintiff Chinnasamy Naidu (ii)the first defendant late C.Subramaniam and (iii)the person holding the office of the President of the first plaintiff Trust as its trustees and the second plaintiff and the first defendant were appointed as life trustees and after their life time, the remaining trustees would be appointed as new trustees. As per the terms of the Trust Deed, the trust is to be maintained by majority of the trustees and the trust property shall be used as Coimbatore District Congress Committee office and the income derived from the property after its expenses, should be utilised for social and welfare objects as mentioned in the trust deed. The property was also immediately handed over to the trustees. The execution of Ex.A2 document under the name and style of Trust deed and the creation of the trust and the recitals contained in the same and the factum of possession handed over to the Trust and the factum of using the trust property for the purpose mentioned in the same and the income used for the objects mentioned in the same, are not at all denied in the written statements filed by the defendants 2 and 6. Though a vague attempt was made in the written statement denying the validity of so called trust deed, on the ground that the persons referred to therein had no right and had no locus standi to form a trust and to deal with the property and the plaintiffs were not conveyed any right to manage or claim any right over the property, the same are very vague and bald and deserve no merits and consideration.
14.As already referred to, the property was purchased in the name of the second plaintiff for Coimbatore District Congress Committee and the trust deed was created by the persons whose names were mentioned in the sale deed executed as the then President of District Congress Committee and the creation of the Trust is as stated in the document, on the strength of the resolution passed by Coimbatore District Congress Committee. The same was validly created by a registered trust deed in the manner as provided under Section 6 of the Indian Trusts Act, 1882. For better understanding Section 6 of the Act is extracted hereunder:
"6.Creation of trust: Subject to the provisions of Section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a)an intention on his part to create thereby a trust, (b)the purpose of the trust (c)the beneficiary, and (d)the trust property and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee."
Ex.A2 Trust deed having satisfied all the ingredients as stated above, no objection can be raised against the valid creation of the trust in respect of the suit property and the objection raised in the separate written statement of the defendants 2 or 6 was not pressed into service during trial.
15.It is not in serious dispute that the suit property had been in possession and enjoyment of the District Congress committee since the date of purchase and since the date of creation of the trust and the problem arose on account of the national level split in the congress party in 1969. The fact that the congress party was split in 1969 as two groups as Congress ( I ) and Congress (O). Congress O thereafter merged with Janata Party in 1977 and appropriate legal proceedings were initiated for identifying and recognising Congress ( I ) Party as original Congress Party and the proceedings relating to allotment of symbol was taken upto Supreme Court and the Supreme Court by order dated 11.11.1971 reported in (1972) 4 SCC 664 (Shri Sadiq Ali and another v. The Election Commissioner of India and others) resolved the issue, by confirming the findings of the Election Commission that Congress J was to be recognised as Congress for which, the symbol of "Two bullocks with Yoke on" was allotted and such finding was rendered by applying the test of majority and by observing that Congress J had the majority out of the total number of members returned on Congress tickets to the Houses of Parliament as well as the majority, out of the sum total of the members of all the Legislatures returned on congress and Congress O had majority in the legislatures and as regards organisational wing of the Congress, Congress J enjoyed majority in All India Congress Committee as well as amongst delegates of the undivided Congress. It is true that the Supreme Court in para 34 of the judgment left the adjudication of disputes about property to the civil courts.
16.Before the split, the second defendant by name U.K.P.Natarajan who was one of the members of undivided Congress, was in the management and administration of the trust property and its funds and after the split, he joined Congress (O) party, but continued in the occupation of management and administration of the property. After the dispute regarding the real congress was resolved by the Apex Court, the dispute regarding the property began and the present suit came to be filed originally by Coimbatore District Congress Committee rep. by its then President and the second plaintiff by name S.N.R.Chinnasamy Naidu against C.Subramaniam and U.K.P.Natarajan and the reliefs originally sought for in the suit are for declaring that the second defendant is not trustee of Coimbatore District Congress Committee and for issuing injunction directing him to deliver possession of the trust property and for permanent injunction restraining him from operating the bank accounts of the District Congress Committee with the Bank of Baroda, Coimbatore (Head Office and any branches) either directly or through any person authorised by the second defendant and for directing the second defendant to render true and proper accounts of the funds and properties of the trust.
17.During the pendency of the suit, by order dated 17.2.1989 made in IA.468/1984, an amendment was ordered, thereby amending the cause title of the first plaintiff from Coimbatore District Congress Committee rep. by its then President to K.N.Kumarasamy, President, Coimbatore District Congress Committee. Subsequently, one V.M.Thangavelu, after his appointment as the President of District Congress Committee was by order dated 8.9.2000 made in I.A.1528/1999 impleaded as the first plaintiff in the place of K.N.Kumarasamy, in the capacity as President of Coimbatore District Congress Committee. After the death of the second plaintiff S.N.R.Chinnasamy Naidu, who was one of the life trustees, one Dr.S.N.R.Venkatesalu was appointed as life trustee and was impleaded as the third plaintiff therein by order dated 8.9.2000 made in IA.239/1996 and the plaint was accordingly amended by order dated 19.4.2001 made in IA.No.998/2000.
18.Pending the suit, the second defendant died in 1992 and IA.1773 of 1991 came to be filed for impleading the proposed parties (i)C.V.Kandasamy, (ii)N.Rathinam @ Thambi and (iii)R.Sengaliappan as the defendants 3 to 5. It is stated in the affidavit filed in support of the application that the proposed defendants 3 and 4 were respectively Urban and Rural Presidents of Coimbatore District Janata Dal Party and in-charge of the entire building and collecting the rent, except the conference hall, which is under the enjoyment of the proposed 5th respondent. The proposed fifth respondent is having control over the meeting hall in the ground floor, which fetch Rs.500/- per month, if the same is leased out. It is also stated therein on the side of the plaintiffs that the respondents 3 to 5 were collecting the rent amounts from the tenants and were utilizing the same without any authority and they were proper parties to the present suit. IA was duly ordered on 24.8.1992 and the proposed parties were impleaded as the defendants 3 to 5 in the suit.
19.Thereafter, the fourth defendant N.Rathinam @ Thambi who was the President of Coimbatore District Janata Party died and I.A.987/1992 came to be filed for impleading one Kalapatti Ponnusamy, then President of Coimbatore District Janata Dal (Rural) party as the sixth defendant in the place of the deceased fourth defendant and was managing the affairs of the suit property. It is stated in the supporting affidavit that the defendants 3 to 5 were in charge of the building and collecting the rents, after the resignation of U.K.P.Natarajan as the President of District Janata Dal Party and after the death of the fourth defendant N.Rathinam @ Thambi, who was the District Janata Dal President, the proposed sixth defendant has been nominated as the President of District Janata Dal (Rural) Party in the place of the fourth defendant and was necessary party to the suit. IA was ordered on 24.8.1992 and Kalapatti K.M.Ponnusamy, who is the appellant herein, came to be impleaded as the sixth defendant in the suit. The plaint was accordingly amended by carrying out the impleadment of the defendants 3 to 5 and 6 in the suit, by order dated 12.2.1993 made in I.A.No.2518/1992.
20.Again during the pendency of the suit, I.A.238 of 1996 was filed to implead one K.P.S.Mani as the seventh defendant stating that the proposed seven defendant has been nominated as President of Coimbatore District Janata Dal (Urban) in the place of C.V.Kandasamy/third defendant and was a necessary party to the suit. Accordingly, K.P.S.Mani was impleaded as the seventh defendant by order dated 20.8.1999 and the plaint was amended so by order dated 19.4.2001 made in I.A.259/2001.
21.After amendment as referred to above, the plaintiffs are (i)V.M.Thangavelu, President, Coimbatore District Congress Committee and (ii)Dr.S.N.R.Venkatesalu and the defendants are (i)C.V.Kandasamy (ii)R.Sengaliappan (iii)K.M.Kalapatti Ponnusamy and (iv)K.P.S.Mani. Accordingly, the plaint was amended and the suit reliefs for declaration and for delivery of possession of the suit property and for permanent injunction from operating bank account and direction for rendering true and proper accounts of the funds and property of the trust for the previous three years were sought for against the defendants 3,5 and 6. While so, the defendants 3 and 5 were by order dated 19.4.2001 made in IA.998/2000 filed by the plaintiffs, exonerated from the suit reliefs, as such, the suit reliefs sought for were only against the six defendant, who was the only contesting party in the suit.
22.As already referred to, after split, the second defendant continued to be in possession and enjoyment of the suit property by collecting rents from the occupants of the property, as the President of Janata Dal Party and after his death, the same was taken over by the defendants 3 to 5 and thereafter by the defendants 3, 5 and 6. All the documents produced on the side of the defendants as Exs.B1 to B69 are between 1969 and 2000, out of which, Exs.B31 and B32 are the orders, dated 23.8.1999 made in MC.98/99/A2 and dated 29/9/1999 made in MC.110/1999/A2 passed by the Sub Divisional Magistrate and Revenue Divisional Officer, Coimbatore. Both the orders were passed in the proceedings initiated under section 145(1) Cr.P.C in respect of the suit property. It is stated in Ex.B31 order dated 23.8.1999 that compromise was effected between A party headed by K.P.S.Mani, District President, Janata Dal, Coimbatore and B party headed by (i)N.K.Ashok Kumar, President Janatha Dal, Coimbatore Town District and (ii)Kalapatty M.Ponnusamy, President, Janatha Dal, Coimbatore Rural District and they settled the dispute over the building in question by equally dividing the occupation of the building property among themselves and a memorandum of understanding dated 23.8.1999 was filed to the effect that they would enjoy their respective share of the building as per the terms and conditions agreed upon, without resorting to any activity to create any law and order problem affecting public peace and tranquility. The Revenue Divisional Officer, Coimbatore by recording the same, ordered dropping of further proceedings.
23.Ex.B32 order dated 29.9.1999 of the Revenue Divisional Officer, Coimbatore is in the nature of notice, issued to (i)K.P.S.Mani, Congress ( I ), Coimbatore and (ii) M.Thangavel, District President, Congress (I), Coimbatore belonging to A Party and (i)N.Ramakrishnan, District President, United Janata Dal, Coimbatore and (ii)A.P.Subramaniam, National Council Member, United Janata Dal, Coimbatore belonging to B party, calling them to appear in person or by pleader on 11.10.1999 in the office of the Sub Divisional Magistrate and RDO, Coimbatore, for enquiry in the proceedings initiated under section 145(1) Cr.P.C. It is stated therein that K.P.S.Mani was removed from the Primary Membership of Janatha Dal (United) and one S.Ramakrishnan of B party was appointed as District President in the place of K.P.S.Mani, who subsequently joined the congress party and illegally occupied the Janatha Dal (United) office building at D.No.54, Kamaraj Bhavan, Gopalapuram, Coimbatore and running the office for congress party and in the same building, the office of Janatha Dal (United) was also said to be functioning and both A and B parties were claiming right over the said building and their dispute was likely to cause grave law and order problem affecting the public peace and tranquility.
24.As rightly argued by the learned senior counsel for the plaintiffs, the majority of the documents produced on the side of the defendants are self serving in nature and are obtained after amending the suit plaint. Exs.B1 to B69 documents, except showing that the suit property has been in the occupation and management of the rival group, do not in any manner substantiate the claim for ownership over the suit property either in favour of Congress (O) Party or Janata Dal Party. The property having been purchased out of the funds from the undivided original District Congress Committee and the Trust, having been created by the original owner and the trustees before and on the date of institution of the suit having been members of Congress( I ) party and Congress ( I ) party having been recognised as original congress and the plaintiffs having been before and on the date of institution of the suit the members of the original congress which was the original owner of the property, any claim for title by either rival group Congress (O) or by Janatha Dal or Janata party with whom another Congress (O) subsequently got merged is legally not tenable. Further, except showing that the rival group continued to be in occupation of the property, there is absolutely no record to show that Congress (O) became the owner of the property and their ownership on their merger with Janata Party stood automatically transferred to Janatha Dal or Janata Party.
25.Between 1969 split and 1971, the date on which Congress ( I ) was declared as real congress by applying the test of majority or thereafter, no legal steps were taken by other party for declaration of their respective ownership in respect of the suit property before appropriate civil forum. The scope of the proceedings under section 145(1) Cr.P.C is only for limited purpose of protecting possession without going into the title of the property in question and any order passed therein will in no manner improve the case or claim of the contesting defendant. Under such circumstances, the impleadment of Janatha Party in the proceedings is unwarranted and the plea of non joinder of necessary party is legally not sustainable.
26.Further, as the defendants 3 to 6 were referred to as the then Presidents of Urban and Rural Coimbatore District Janata Dal Party and they were impleaded in the suit only on the ground that they had been managing the affairs of the suit property and in-charge of the building and collecting the rent amount and by reason of their occupation in the suit property, as such, the question of impleading Janata Party, which is a political party as one of the defendants in the suit does not arise herein. The same is also rightly decided by the courts below and no valid ground is hence made out by the appellant/D6 either before the lower appellate court or this court against the correctness of such finding.
27.Even otherwise, as rightly argued by the learned senior counsel for the plaintiffs, the plea regarding non-joinder or misjoinder of parties will not render the suit to be rejected, as per the observation of the Hon'ble Apex Court reported in 2007 (3) CTC 101 (Prem Lala Nahata and another v. Chandi Prasad Sikaria). In that case, the Apex Court has clearly held that with reference to Order 1, Rules 3-A, 4 & 5 and 9 CPC, no suit shall be defeated by reason of non-joinder or misjoinder of parties and the Court may in either case deal with the matter in controversy so far as it regards the rights and interests of the parties actually before it. The Apex Court in para 13 of the same judgment observed that the Code considers objections regarding the frame of Suit and joinder of parties only as procedural and the procedure is the handmaid of justice and not its mistress. Section 99 of the Code specifically provides that no decree shall be reversed in Appeal on account of any misjoinder of parties or causes of action or non-joinder of parties, unless a Court finds that the non-joinder is of a necessary party. The learned brother judge of our High Court in the judgment reported in 1999 (III) CTC 57 (RM.AL.Visalakshi Achi (died) and two others v. RM.Seenivasan and three others) observed that a mere vague statement that the suit is not maintainable for non-joinder of necessary parties, would not amount to taking specific plea and the failure to take necessary pleadings regarding non joinder of necessary parties would only mean that the defendant has waived such plea or defence.
28.The main issue raised herein is the locus standi of the plaintiffs to file the suit. The suit is as already stated originally filed by Coimbatore District Congress Committee represented by its President and one of the life trustees of the Trust against other life trustee and another. The Trust is, in the foregoing paragraphs, held to be validly created. Out of three trustees, the second plaintiff and the first defendant were the two life trustees and the 3rd one was then President of District Congress Committee. Though the suit was rightly filed by Coimbatore District Congress Committee represented by its President and by one of the life trustees in their capacity as trustees against the other life trustee i.e., the second defendant, who had been in the occupation of the property, the cause title was later amended in such a manner that then President who was one of the trustees and the 2nd plaintiff who was one of the life trustees were made as the plaintiffs to the suit and the same is in compliance with the mandatory requirement as laid down under the relevant provisions of the Indian Trusts Act.
29.The Delhi High court in the decision reported in AIR 1984 Delhi 145 (Duli Chand v. M/s.Mahabir Pershad Trilok Chand Charitable Trust, Delhi) and the Division Bench of this Court in the judgment reported in 2003(3) CTC 209 (Kishorelal Asera v. Haji Essa Abba Sait Endowments rep. by its Trustees, Ibrahim Sait and others) are of the view that all the trustees must be joined as parties either as plaintiffs or as defendants and it is possible for some of the trustees to authorise the others to file a suit, by executing a power of attorney. The Delhi High Court in para 21 of the decision cited above has dealt with the issue as to whether a suit can be filed in the name of a trust and answered it in negative. The same view is expressed by the Division Bench of our High court in para 14 of the judgment cited above. It is stated therein that the trustees jointly or any one of them when authorised in that behalf by the rest of them can maintain the suit for eviction and the court has the power to accept any of the trustees to represent the Trust in a suit concerning the property vested with the Trust.
30.The learned single judge of our High Court in para 21 of the authority reported in 2012 (1) MWN (Civil) 241 (Sambandam (died) and others v. Nataraja Chettiar), by applying the views of the Bombay High Court in the decision reported in Sainath Mandir Trust v. Vijaya V.Mandale, 2004 Vol.106 (1) Bom LR 259 (267) (Bom) has observed that "where the contest in the suit is between the persons beneficially interested in such property under third person, it is not necessary to make all the Trustees party in the suit". In the case decided by the learned brother judge, the suit was filed by one of the trustees and in the long cause title of the plaint, he has not shown himself as a trustee in respect of the suit property, but shown himself in his individual capacity. However, the plaintiff conceded that the suit property belongs to the Trust. The learned brother judge is of the view that "the omission to show him as a trustee, is not fatal to the case and Order 31 Rule 1 CPC is only an enabling provision and it does not dis-entitle a person, who happens to be a trustee from suing in his individual capacity at his option and non-filing of the suit in the name of Trust is not a material defect, since such omission is only a matter of form and not of substance".
31.As far as the substantial question of law raised herein regarding locus standi of the plaintiffs to maintain the suit, it is contended before this Court that the suit property has been in the plaint described as belonging to Coimbatore District Congress Committee, as such, the suit ought to have been filed by District Congress Committee and the trustees have no locus standi to file the suit and the suit filed by them is not maintainable. It is argued so before this court by giving undue importance to unamended averments made in the plaint. In the amended plaint, having amended the cause title of the first plaintiff from Coimbatore District Congress Committee represented by its President as the President, Coimbatore District Congress Committee, in his individual capacity and one of the trustees of the trust, the plaint averments were omitted to be amended and the suit property in the unamended body of the plaint has been in more than one place referred to as the property acquired for the first plaintiff before amendment i.e. District Congress Committee in the name of the second plaintiff. Such omission to carry out necessary amendment in the body of the plaint, after amending the cause title is in my considered view only an inadvertent bonafide one and the same does not alter the claim of the plaintiffs that the property belongs to the Trust. The learned senior counsel for the plaintiffs has at this juncture cited the decision of the Hon'ble Supreme Court reported in AIR 1952 SC 47 (Kedar Lal Seal and another v. Hari Lal Seal), wherein, it is observed that "the court would be slow to throw out a claim on a mere technicality of pleading, when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded". The Hon'ble Supreme Court in para 4 of other judgment reported in (1997) 2 SCC 200 (Sukhbir Singh and others v. Brij Pal Singh and others) held that in a suit for specific performance, what requires to be considered is whether the essential facts constituting the ingredients in Section 16(1)(c) of the Act were pleaded and that found mentioned in the forms do, in substance, point to those facts. It is also observed that the procedure is the handmaid to the substantive rights of the parties.
32.In the present case, there are sufficient averments raised in the original plaint as well as in the amended plaint and in the affidavits filed in support of the applications to amend the cause title of the first plaintiff and to substitute the then President and one of the life Trustees as plaintiffs 1 and 3 and the applications to implead additional defendants that the suit property belongs to the trust duly created vide trust deed dated 21.8.1961 and the rival parties have been in the occupation of the same without any right to do so and the suit reliefs claimed are on behalf of the trust and the suit with such necessary averments was filed by making all the trustees as the plaintiffs and first defendant. The parties entered into trial by having properly understood the pleadings and the capacity in which the suit was filed by the plaintiffs and the parties on whose behalf and against whom and in what capacity, the suit reliefs claimed etc. That being so, no serious argument can be entertained regarding the locus standi of the plaintiffs trustees to maintain the suit. The Trust having been validly created in respect of the suit property and the property having been validity transferred and taken over by the trustees, the same no longer belongs to District Congress Committee and District Congress Committee had no right or title to maintain any claim. The only right available to District Congress Committee as per the purpose mentioned in the Trust deed is to utilise the property for the office of District Congress Committee, but that will not cloth the District Congress Committee any right or title over the suit property. By creation of Trust, the title of the property vested with the Trust represented by its trustees. As the suit is filed by the trustees, the same is well maintainable and the finding of the courts below regarding the maintainability of the suit calls for no interference and the substantial question of law raised herein is hence answered in favour of the plaintiffs.
33.On merits, both the courts below have decreed the suit for all the reliefs against the sixth defendant including the relief for injunction restraining the 6th defendant from operating the accounts of District Congress Committee. It is fairly conceded by the learned senior counsel for the plaintiffs that the suit having been filed on behalf of the trustees, they have no locus standi to seek any relief in respect of bank accounts maintained by District Congress Committee as District Congress Committee and the Trust are in the eyes of law two different entities. That being so, the suit reliefs are restricted to declaration and recovery of possession and direction to render true and proper accounts of the funds and properties of the trust.
34.As the reliefs sought for in the suit are against the sixth defendant and as the sixth defendant had been impleaded as party to the suit, after the death of the fourth defendant, the direction given to the sixth defendant in rendering true and proper accounts of the funds and properties of the trust is restricted to the date on which he was ordered to be impleaded in I.A.No.987 of 1992 and he was actually impleaded so in the plaint by order dated 12.02.1993 made in IA.2518/1992 and the third suit relief is hence restricted from the year 1993.
35.In the course of argument, it is brought to the notice of this court that the suit property has been already delivered to the plaintiffs/ trustees through Execution Proceedings and the possession now remains with the plaintiffs.
36.In the result, the second appeal is dismissed by confirming the judgment and decree of the courts below, for the reliefs of declaration, for recovery of possession and for rendering true and proper accounts of the funds and properties of the trust by the sixth defendant from 1993 onwards. No costs.
Index:Yes/No rk 16.07.2015 To 1.The Principal District Judge, Coimbatore. 2.The Principal Subordinate Judge, Coimbatore. K.B.K.VASUKI, J. rk SA.No.1535 of 2005 16.07.2015 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 16.07.2015 Coram: THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI S.A.No.2137 of 2001 Sri Arulmighu Subramaniaswamy Thieukoil rep. By its Executive Officer, Pollachi. .. Appellant vs. 1.K.Subramanian 2.D.Amuthavalli 3.Palanichamy 4.P.Thangam 5.Somaskandan 6.Sumathi 7.A.Venkatasubramaniam 8.P.Illango 9.The Secretary, Pollachi Town Co-op. Building Society, Pollachi. 10.Jayalakshmi 11.Venkatasubramanian 13.Thilagavathi .. Respondents
Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 13.01.2000 made in A.S.No.153/1999 on the file of the Principal District Judge, Coimbatore confirming the judgment and decree dated 30.04.1990 made in O.S.No.187 of 1990 on the file of the Subordinate Judge, Udumalpet.
For Appellant : Mr. For Respondents : Mr. JUDGMENT
The unsuccessful plaintiff/temple is the appellant herein. The present second appeal is filed against the concurrent judgments of the trial court as confirmed by the lower appellate court.
2.The suit in O.S.187/90 was filed by the plaintiff for declaring the plaintiff's title to the suit property and for recovery of vacant possession of the suit property. The plaint proceeds as if the suit property belongs to the temple by way of devadayalaya Inam vide TD no.111 and the grant was confirmed till the temple was maintained from and out of the income from the same and the property was registered under Minor Inams (Abolition and Conversion into Ryotwari) Act (hereinafter shortly referred to as Act) and the same has been maintained so, by the first defendant who was the hereditary trustee of the plaintiff temple and he had been treating the income of the property as temple property and utilised the same for maintenance of the temple and the first defendant has been in possession and enjoyment of the same in his capacity as hereditary trustee of the same and in order to protect the property, on behalf of the temple and after coming into force the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act (hereinafter shortly referred to as Act), steps were taken to obtain ryotwari patta in respect of the suit property belonging of the temple and the ryotwari patta was duly issued to the temple by the Settlement Tahsildar and patta issued by the Settlement Tahsildar was set aside by the Minor Inam Tribunal, Coimbatore in CMA.334/69 wherein, the first defendant claimed independent right over the suit property and on the failure of the temple to produce relevant documents, before the appellate authority, the order of the settlement Tahsildar was set aside and ryotwari patta was issued in the name of the first defendant and thereafter no step was taken to file further appeal against the order of the settlement Tahsildar. While so, the first defendant was removed from the hereditary trusteeship by the HR&CE Department and the same was challenged by a suit, which is now culminated and pending as appeal before the Supreme Court. In the mean while, an Executive officer was appointed as in-charge of the temple, who preferred an appeal with a delay of 30 days and the High Court, Chennai refused to condone the delay and dismissed the appeal on the ground of delay. Thereafter, the first defendant had been continuing in possession and enjoyment of the property belonging to the temple and by utilising the income from the same for his personal use without any right to do so and also sold a portion of the same to the defendants 2 to 10 during 1990 which compelled the plaintiff to come forward with the suit for the relief stated supra.
3.During the pendency of the suit, the purchasers of a portion of the suit property and on death of the first defendant, her legal heirs were brought on record as the defendants 2 to 10 and 11 to 13 respectively. The first defendant in the written statement filed by her during her lifetime, seriously resisted the claim of the temple. The first defendant opposed the relief by challenging the maintainability of the suit on the ground of limitation and by applying the principle of resjudicata and by claiming prescriptive title by adverse possession. The suit relief was also opposed by the defendants 2,4,6,7,9 10, and 11 to 13 on the same grounds as raised by the first defendant.
4.The contesting parties, in support of their respective contentions during trial, examined the Executive officer, HR&CE Department, Coimbatore as PW1 and produced Exs.A1 to A25 and Exs.B1 to B18 documents. The trial court on the basis of the available evidence, arrived at a conclusion that though the grant was made in favour of the temple in 1862 vide Ex.A2 and though the property was treated as temple property, Exs.A3 to A7 auditor's reports for the temple do not establish the exclusive title of the temple in respect of the suit property. Having regard to Ex.B16 patta issued in 1805 in favour of the poojari kuppaiyan in respect of the suit property and Ex.B17 Jarimania patta issued in the name of the same person and Ex.B1 order made in CMA.334/69 by the Inam Tribunal thereby granting ryotwari patta in favour of the first defendant, Exs.A3 and A4 patta issued by the special Tahsildar, Ex.B7 Extract of permanent register for inam for the faslis 1620 and fasli for 1342 and other documents produced on the side of the defendants, it would prove that the patta was issued to the individual Kuppaiyan Poosari, who was the predecessor in title of the defendant as early as 1805 as such, the plaintiff cannot be held to be the owner on the strength of A2 patta issued in the year 1962 and the property granted as 'Maniyam' to Kuppaiyan Poosari was later on partitioned between Kuppaiyan Poosari and others and the same has been since the date of patta, in possession and enjoyment of predecessor in title and thereafter in the hands of the first defendant and thereafter with her legal heirs and the purchaser from her and there was no evidence to show that the same was treated as temple property and the income from the same was utilised for the temple purpose and it is the first defendant and her legal heirs who were entitled to kudivaram right. The trial court has also held that the suit having not been filed for declaration within 3 years from the date of order passed by the Inam Tribunal in 1972, and from the date of issuance of ryotwari patta in favour of the first defendant during 1978 is hence barred by limitation. The trial court also arrived at the conclusion that the first defendant having claimed title in her favour in respect of the suit property as early as in 1972 and having obtained ryowari patta in 1973, the first defendant by her open, continue, uninterrupted and adverse possession from 1973 to the knowledge of the temple, obtained prescribed title in respect of the suit property and the claim of the plaintiff/temple if any is lost. The trial court also found that the issue relating to right of the parties for obtaining patta having been ultimately decided by Minor Inam Tribunal, the same cannot be permitted to re-agitate by way of civil suit and the civil suit is barred by resjudicata. The trial court on the basis of such findings, held the temple to be dis-entitled to get the suit relief and dismissed the suit. Aggrieved against the same, the plaintiff preferred AS.153/1999. The lower appellate court agreed with the findings of the trial court, with regard to maintainability of the suit on the ground of limitation and the claim of the first defendant for independent title over the suit property on the basis of Exs.B1, B4, B7 and B16 to B18 documents and her claim for prescriptive title by adverse possession and accordingly dismissed the appeal filed by the plaintiff temple. Hence, this second appeal by the plaintiff before this court.
5.Originally the second appeal was by judgment dated 21.12.2001 dismissed by this court on the ground that both the courts below have considered the claim of the parties on appreciation of evidence both oral as well as documentary, pertaining to the title of the property and ultimately found that the appellant temple failed to establish their title to the suit property. The correctness of the same was challenged by way of civil appeal before the Apex Court, which set aside the judgment and decree of this court and remanded the appeal for fresh disposal strictly in accordance with law and gave liberty to the parties to raise all factual and legal issues which are permissible in law.
6.After the remand, this court by order dated 4.11.2013 framed 9 substantial questions of law for determination of this second appeal and the same were by order dated 20.2.2004 re-framed, which read as follows:
RKJ order......
7.During the pendency of this second appeal, both the appellant/plaintiff and the defendants have come forward with CMP.Nos.877 and 353/2014 for receiving additional documents on their respective sides and this court by order dated 4.2.2105, on consent of the parties, allowed CMPs and received the additional documents as Exs.A26 to A40 on the plaintiff's side and Exs.B19 to 24 on the defendants' side.
8.Heard the rival submissions made on both sides and perused the records.
9.As already stated, the plaintiff temple claimed the suit relief for declaration and recovery of possession of the suit property on the strength of devadayalaya inam granted in favour of the temple by Zamindar of Ramnad vide T.D.No.111. The facts that the predecessor-in-title of the first defendant and the first defendant were the service holders-cum-hereditary trustees of the plaintiff temple and had been managing the affairs of the temple and had been in possession and enjoyment of the property belonging to the temple and the property granted by way of Inam and the suit property have also been in their possession, are not denied. While the plaintiff claimed that the suit property belongs to the temple by way of Devadayalaya Inam by Zamindar of Ramnad vide TD No.111, Ex.A2 Inam register extract, Exs.A3 to A7 auditor's reports and Ex.A24 order of the Settlement Tahsildar in SR.No.410 and 462/1968 made under the Minor Inams (Abolition and Conversion into Ryotwari) Act 30/1963, the first defendant denied the plaintiff's title and set the title in favour of her predecessor and thereafter herself by virtue of Ex.B1 order made in CMA.334/69 by the Inam Tribunal, Coimbatore for issuance of ryotwari patta in favour of the first defendant, Ex.B3 patta issued by the Special Tahsildar, Exs.B7 and B8 Inam register extracts, Ex.B11 lease deed Exs.B16 order of the Collector of chennai directing to issue jarimania patta, Ex.17 jarimania patta and Ex.B18 patta for the fasli 1348. In the course of argument before this court, additional documents are produced and are received as Exs.A26 to A40 and Exs.B19 to B24 on the side of the plaintiff and the contesting defendants. The suit was originally filed against the first defendant only. Thereafter the purchasers of a portion of the suit property were impleaded as the defendants 2 to 10 and after the death of the first defendant Subbulakshmiammal, her legal heirs were impleaded as the defendants 11 to 13. Both the courts below have rejected the plaintiff's claim for title by holding that Ex.A2 inam register extract shall not be conclusive proof in the absence of any other records such as inam title deed and the predecessor of the first defendant and thereafter the first defendant have to be entitled for the suit property on the strength of Ex.B6.......
The learned single judge of our High Court in the authority reported in 2012 (1) MWN (Civil) 241 (Sambandam (died) and others v. Nataraja Chettiar), observed that as per decision Sainath Mandir Trust v. Vijaya V.Mandale, 2004 Vol.106 (1) Bom LR 259 (267) (Bom), when the contest in the suit is between the persons beneficially interested in such property under third person, it is not necessary to make all the Trustees party in the suit. It is further observed therein that the suit can be maintained by all the trustees jointly or by any one of them when authorised in that behalf by rest of them and the omission to show the trustee in such capacity in the long cause title of the plaint and shown in his individual capacity is only a matter of form and not of substance and the suit filed by him for recovery of possession in the long cause title of the plaint describing himself as an individual is maintainable in law.