Madras High Court
S. Rajarathinam (Deceased), Stephen ... vs C.S.I. Coimbatore, Diocese ... on 2 April, 2002
Author: Prabha Sridevan
Bench: Prabha Sridevan
JUDGMENT Prabha Sridevan, J.
1. The Church of South India Trust Association(`CSI' in short), Coimbatore and the appellants herein are claiming right to a property which is 40' x 80', door No.45, Brough Road, Erode.
2. Each of them filed a suit and the suit ended in favour of the CSI. O.S.No.273 of 1984 was filed by CSI for a declaration of title and for recovery of possession. The appellants filed O.S.No.1335 of 1982 for a declaration of the first appellant's possessory title and injunction. This was subsequently, transferred to the file of the Principal Subordinate Judge, Erode before whom the former suit was pending and numbered as O.S.No.290 of 1985. Before, CSI came into existence the Company incorporated under the English Companies Act known as London Mission Society ('LMS' in short) acquired properties in India and their mission was to spread the gospel of Christianity. When LMS wound up, all its assets were transferred to CSI. The suit property was purchased sometime in 1930 and the dispute is whether the property belong to LMS and thereafter to CSI or whether the property never belonged to LMS. The plaint in one suit is virtually the written statement in the other.
3. According to the appellant, the Brough Road Memorial Church was acquired out of the foreign funds of LMS and at that time one T.T. Veda Manickam of Erode was the secretary of Erode area. During his period, collections were made from the public of Erode and the suit property was constructed in the year 1935. It was managed by a separate committee consisting of prominent Indian Christians and it was used for the furtherance of the religion. The suit property was treated as a separate entity and not as LMS. Rev. Todman, who was the treasurer and representative of LMS at Erode and its Constitutional Head, directed and guided the local committee and was controlling the affairs of the Mission. After the death of Mr. Veda Manickam, the committee became defunct and there was no proper maintenance and upkeep of the property. Mr. Arivanandham, the person in whose charge the property was given also did not take care of the property. In these circumstances, Rev. Todman handed over possession of the property to the first plaintiff who was a young and enthusiastic christian and from 01-04-1961 it has been in his possession and management. When CSI was formed after LMS left, LMS's properties were transferred to CSI and Rev. Todman handed over all the LMS Properties to CSI Trust Association. The suit property was not included as it was not the Mission's property but the property constructed out of contribution of the local people of Erode. Therefore, according to the appellants at the time of transition, the suit property did not vest with the CSI, the respondent herein but only with the first appellant. He alone has been in possession of the suit property paying electric charges. No one else has any right. He leased a portion of the building to one Paul Raj for a period of one year and since the tenant sub-leased the portion, the first appellant took immediate action and filed R.C.O.P.No.100 of 1976 to evict him. The tenant locked the premises and absconded. The first appellant wanted to take possession but his ill-health prevented him. In 1982, he initiated proceedings and took possession of the premises to the knowledge of the respondents. The certified copies of execution proceedings, delivery warrant were marked as exhibits. After taking possession, the first appellant claimed the premises and is conducting classes there. Some persons, who are jealous of first appellant misrepresented the state of affairs to the Bishop and the Bishop without further enquiry had instructed the respondents to take possession of the suit property. Consequently, a complaint was lodged to the Police alleging that the first appellant had broken open the suit building. According to the appellant, the respondent was fully aware of his possession of the suit property from 1961 and therefore, he sought declaration of his possessory title and injunction.
4. The case of the respondents on the other hand is that LMS transferred all the properties on 14-04-1965 by a registered deed and therefore, the entire suit property was conveyed to the respondent and from 14-04-1965, the respondent is in exclusive possession and enjoyment of the properties belonging to the erstwhile LMS Corporation. In or about 1982, since there was a shifting of the Property Manager's Office, the first appellant trespassed into the property. He is a seasoned litigant and has fabricated records allegedly to show his possession. All the Court proceedings referred to by the appellant are stage-managed and collusive.
This is, in brief, the case of both the parties.
5. The question that has to be decided now is who is entitled to the suit property, the appellants or the respondents.
6. Mr. V.K. Muthusami, learned Senior Counsel appearing for the appellants would submit that while the appellant had clearly stated that the superstructure was put up in 1935, the respondent does not even know the date and merely states, "in or about 1935". To the knowledge of the respondents the possession of the property was handed over to the appellants on 01-04-1961. No action was taken because CSI knew that the first appellant alone had the exclusive right. The learned Senior Counsel would submit that the suit filed by the respondents is an ejectment suit and it is for the respondents to prove their title. The Court below wrongly cast the burden on the appellant. He would submit that there was no evidence to show that the respondents had ever been in possession of the suit property. He would also submit that para No.18 of the judgment shows that there is a compound wall and the suit property is outside the compound wall. This itself would show that the suit property does not belong to the CSI. He referred to the evidence of P.W.1 who is the Manager of the CSI properties. Even assuming without admitting the land in T.S.No.587 belongs to the respondents there is no presumption that the superstructure was put up only by the respondents. Further, the respondents do not even know when the superstructure was put up. It goes to show that they cannot have any right in the property. He also referred to Ex-B9 which is written by Tamil Christhuvar Marumalarchi Mandram in which it has been stated that the suit property was constructed by the donations of the CSI trust. So this would also belie the case of the respondents that LMS had built the property out of their own funds. The learned Senior Counsel submitted that it is not for the appellant to produce documents relating to possession but it is for the respondents to prove their right. The land in T.S.No.587 alone was transferred but not the superstructure and when there is an omission in Ex-A1 to refer to the superstructure it is fatal to the respondent's case and therefore, the appellant must succeed. The other clinching piece of evidence according to the learned senior counsel is R.C.O.P.No.100 of 1986 which is marked as Ex-B19 and the file thereof. According to this, in 1976 when the appellant was taking all steps to recover possession of the suit property, the respondent was no where to be found and this would show that the possession was only with the appellants who let in the tenant and also got them evicted subsequently.
7. The following judgments were relied on:
(1) In Moran Mar Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius (AIR 1954 SC 526) in the last line in para No.34, the Supreme Court held that the majority of the judgments rendered in the long history of litigation between the parties in that case did not deal with the important issue of title and consequently, the maintainability of the suit.
(2) Chakicherla Audilakshmamma Vs. Atmakuru Ramarao where the Division Bench of the Andhra Pradesh High Court held that in a suit for rejection the plaintiff is liable to be non-suited if he fails to establish his own title irrespective of the question whether the defendants have proved their case or not.
8. He also submitted that the suit is barred by limitation the appellant had perfected their title by adverse possession and for this purpose he relied on Thangamani v. Santhiagu, 2000 (3) LW 848, Saikhom Gouramani Singh v. Saikhom Ningthem Singh, JT 2000 (Suppl.1) SC 575 and Pavadai alias Selvaraj Chettiar v. Chinnadurai Padayachi, 1993 L.W. 278.
For all these reasons, he prayed that the appeal should be allowed.
9. Mr. G.M. Nathan learned counsel for the respondent would submit that though in the appellants' suit two plaintiffs are shown, the prayer itself is for a relief in favour of the first plaintiff and therefore, it was not clear why the second appellant was not at all shown as the plaintiff. He referred to the pleadings in the first appellant's plaint at para 5, where it is stated that the construction was made with donations from the public and managed by a separate committee and that the local public of Erode was interested in the property and again in their own written statement in the suit filed by the respondents they have reiterated the same case. He would submit that the suit has not been filed on behalf of the committee. No application under Order 1 Rule 8, CPC has been filed and this goes contra to their evidence where the appellants have stated that "gg;spf; blhnd&d; bgw;W fl;olk; fl;lg;gl;lJ/@ and that the building was in the management of the local committee. He also referred to P.W.1's evidence in which he has stated that there is no municipal tax paid for the property which would only show that it was a trust property. He would refer to the first appellant's own case that Todman handed over possession. So, Rev. Todman could have only handed over on behalf of CSI or LMS. Therefore, this itself would show that Todman was in possession, atleast until 1961 which is the alleged date on which the first appellant claims to have come in possession. The learned counsel also pointed out to the evidence of D.W.1 where he admits that the service connection is in the name of the Treasurer, LMS and he does not know who applied electric connection and at that time he was a student in Salem. One clinching piece of evidence according to the learned counsel was D.W.1's admission, jhth brhj;J London Missionf;fhf ghj;jpag;gl;L ,Ue;jJ.@ It is also his case that in 1968, Todman had filed R.C.O.P. against the appellant to evict him from D168 and 169. Ex-B9, the letter written by Tamil Christhuvar Marumalarchi Mandram, as stated earlier would also show that the property was built by the donations of several christians of the community and that tax is paid even till date by LMS and the property belongs to CSI. This letter is dated 16-01-1975. In his evidence also the appellant admits T.S.No.587 y; jhd; London Mission Bungalow cs;sJ/ ... L.M.S., C.S.I.f;F khw;wp bfhLj;j gj;jpuj;ij ehd; ghh;j;jJ ,y;iy/ Ex-A1 y; item No.4 ,e;j Bungalowit Fwpf;fpwJ ///// jhth brhj;J T.S.No.587 f;F rk;ge;jgl;lJ ,y;iy ///// jhth brhj;J T.S.No.587 gpuhnj brhy;yp ,Ue;jhy; mJ jtW/ The learned counsel then would refer to Ex-A1 the transfer deed in which item No.4 is described.
"London Mission Church in S.No.95B, Natham Poramboke, on an extent of about 3 cents of land, bounded on all sides by S.No.95 B Nathan in Erode Taluk and Registration Sub-District."
The suit schedule also clearly describes T.S.No.587.
10. The following documents were referred to by the learned counsel:
Exs-A35 to A51, electricity demand notices, Exs-A152 to A269 receipt for payment of electricity bill, Ex-A7 and A8, Minutes Books of Area Counsel Working Coimbatore of LMS, Exs-A277 and A282, copies of Account Books maintained by CSI. All these were marked through P.W.2, the Clerk in the CSI Elementary School Office.
11. The learned counsel would submit that indisputably the evidence shows only one thing and that is, the suit property belongs to the respondent. He would also submit that two suits were filed, one by the respondent for declaration of title and recovery of possession and another by the appellant for declaration of the possessory, title and injunction and therefore, it is not proper to place the entire burden of proving the title on the respondent alone. The burden is equally placed. It was also submitted by the learned counsel that when it is the categoric admission of the appellant that he was put in possession by Todman who was admittedly representing the LMS, the appellant must necessarily prove when he started asserting his rights in his individual capacity. When the appellant has miserably failed to do this both his appeal must fail.
12. The suit property indisputably lies in T.S.No.587. The respondents' pleadings and the respondents own documents Ex-A19 to A21, which are termed as collusive proceedings show that door No.45, Brough Road lies in T.S.NO.587. Superstructure of land were transferred under Ex-A1 by LMS to CSI. This is dated 14-04-1965. It is the first appellant's own case that this superstructure was put up by collecting funds from the christians of the community. In any event, it is seen that the property was intended to be the CSI's because though the case of the appellant is that the property was put up from the funds collected by the Committee and there is nothing on the side of the respondents to show the source of funds for the building, the various documents referred to above from Ex-A7 and A8, the Minutes book and Ex-A277, A278, A162 to A196 and the electricity charges would all show that it was only LMS which was managing the suit property from 1961 to 1963. The building admittedly came up sometime in 1930 and there is evidence to show that the electricity charges has been levied only on LMS. The various documents have already been listed and are not listed again. Ex-A9, the letter written by the Tamil Christhuvar Marumalarchi Mandram was relied on by the appellants to show that the suit property was constructed out of the donations collected from the public. This does not help the appellants' case because it does not show that the respondent is not entitled to the suit property on the other hand it only bolsters the case of the respondent that the property was intended to be for the benefit for CSI and the appellants have no right to remain in the suit property. The case pleaded by the appellants that this property had a separate entity and was not merged with the other CSI properties is not supported by any evidence. This suit has not been filed in a representative capacity on behalf of the committee but by a single person asserting his possessory right. When no proof is forthcoming regarding the right of the committee it only shows that the superstructure was constructed by LMS, perhaps with some donations from the public. But, anyway the property belonged to LMS and thereafter to CSI. There is absolutely no evidence to show that the "alleged" separate committee was ever in possession or management of the suit property. The Trial Court held that the omission to mention superstructure in T.S.No.587 cannot detract from the respondents' case. But if item No.4, in Schedule A of Ex-A1 is seen it mentions bungalow, hospital, playground and garden and we can take it that includes the superstructure existing on T.S.No.587. On the appellants' own pleadings the alleged separate committee became defunct after Veda Manickam died in 1950 and that he was put in possession on 01-04-1961 by Rev. Todman. The fact that Rev. Todman was in management of the suit property is also seen from the fact that he had taken steps to evict the appellant and his wife from T.S.No.165 and 166.
13. The evidence of D.W.1 is replete with references to Todman being in charge of the suit property. In @1961 y; D166 y; ,Uf;f ntz;lhk; jhth fl;olj;jpy; ,U';fs; vd;W Todman vd;id mDg;gpdhh;/ Todman jhth fl;olj;ij ghpghydk; bra; vd;W vd;dplk; xg;gilf;ftpy;iy vd;gJ rhpapy;iy/ 1961 y; Todman vd;dplk; jhth fl;olj;ij xg;gilj;jhh;/ Todman, London Missonary Societyf;F Power of Attorney Mf ,Ue;jhh;/ 1961y; London Missionary Society brhj;Jf;fs; g{uht[k; Todman ghpghydj;jpy; jhd; ,Ue;jJ/@ Therefore, it is clear that till 1961, Todman on behalf LMS or CSI was in full control and had permitted D.W.1, the first appellant to remain in the suit property. Even if the appellants own case were true his possession can only be by permission and unless he is able to prove that he has asserted title in himself hostile to LMS and to the knowledge of LMS or CSI for the required number of years, his suit cannot succeed.
14. On the other hand, it is clear that LMS was in possession of the suit property and after LMS, CSI. The voter's list, Ex-A27, which was also filed by the appellant to show that one Krishnan Nair was residing in the suit property in the year 1966 and D.W.1, the defendant and his family residing in Srinivasa Pillai Street, Erode. Exs-A11 to A26 were filed by the respondent which are counter-foil receipts to show payment of rent. This gains support from the voter's list, Ex-A27. The evidence of D.W.1 with regard to Krishnan Nair refers to Krishnan Nair being in the suit property and he says @mtiu thliff;F ahh; itj;jJ vd;W bjhpahJ/ fpUc&;zd; ehah; vdf;F thlif bfhLf;ftpy;iy/ CSI f;F thlif bfhLj;J te;jhh;/@ This shows that CSI was in control of the suit property between 1962 and 1967. The appellant would admit to show his possession with the aid of R.C.O.P.No.100 of 1976 allegedly filed by the appellant against one Paulraj who was living in the suit property as a tenant to show that the appellants were in possession and enjoyment of the suit property. To counter this, the respondents have produced Exs-A283 and A284 to show that the said Paulraj was living in LMS in Kozhikode and not in Erode. LMS or CSI are not a party to this R.C.O.P. There is no evidence to show that the so-called tenant Paulraj was ever living in the suit property at the relevant time. The petition apparently had been decreed ex parte. The so-called tenant does not appear and the first appellant had created a document to show that he has "taken possession" from one Paulraj. In the written statement, the respondents' case is that the appellant is a court-bird and can concoct documents of a collusive proceedings. D.W.1 would refer to one tailor Venkatachalam who was a tenant in the suit property from 1967 to 1975 for which there is no documentary evidence. @thlif rPl;L vGjgltpy;iy/ /// bt';flhryk; bfhLj;j thlif;F fzf;F vd;dplk; fpilahJ/ bt';flhryj;Jf;F rhl;rpahf ehd; brhy;y nghfpnwd;/@ Ofcourse, Venkatachalam was not examined as defendant's witness.
15. As regards the R.C.O.P., D.W.1's evidence is absolutely vague. ehd; ghy;uh$;kPJ nghl;l R.C.O.P. kDtpy; vjph;thjk; bra;jhuh vd;W bjhpahJ/ jhth fl;olk; jpwe;J ,Ue;jJ/ g{l;o ,Uf;ftpy;iy/ hpf;fhh;l;f;fhf ntz;Lbkd;W E.P. nghltpy;iy/@ If Ex-B20, the document through which the appellants have taken possession is read, " i& RthjPdtPL jpwe;nj ,Ue;jJ/// /// i& jpwe;J ,Ue;j tPl;oy; ve;jtpjkhd $';fk brhj;Jf;fSk; ,y;iy/@ Therefore, a house, totally devoid of any articles or any evidence of human habitation, is alleged to be the property in possession of a recalcitrant tenant who was "successfully evicted" by the appellant. It is extremely difficult to believe that the R.C.O.P. was a genuine contest and the Court below rightly rejected it. Therefore, apart from this, the appellant does not have anything to show that he has ever asserted any right of possession.
16. There is no dispute that on the date of the suit filed by the respondents the appellant was in possession. According to the respondents taking advantage of the fact that the CSI office was shifted to Coimbatore, the appellants had trespassed into the suit property. Ex-A275, which is dated 29-11-1982 refers to the trespass allegedly committed by the respondents to the Police Officer. Ex-A276 is a document in which the appellant has addressed a letter to the Bishop, CSI referring to the telegram dated 25-11-1982 and also the copy of his petition to the Police Inspector. Here the appellant has referred to himself taking possession of the suit property on 06-10-1982 and also to the complaint by CSI that he has trespassed. According to the appellant he took possession on 27-10-1982 is pursuant to the delivery in E.P. and he has also ingeniously sent a telegram, Ex-A274, addressed to the Bishop, CSI, stating, "please take notice, I have taken possession of the building No.45, Brough Road, through Court from 06-10-1982." If the first appellant thought this was a smart move whereby he could make his possession lawful he is labouring under a mistake. This only shows that he is not in possession in his own right and it also demolishes his case that these properties at Brough Road retained a separate identity and were not merged with the other CSI properties. If that were true, there was no need for him to address this telegram to the CSI Bishop when he had already been in possession in his own right. There is no need to mention that he had taken possession through Court in October 1980. It only shows the very clever attempts of a person to use the process of law for his own unjust ends.
17. The judgments relied on behalf of the appellants do not come to their aid since the documents clearly show that the respondents have established their title and are entitled to recover possession whereas the appellant has not established his case to show that he is in any way entitled to possessory, title or for injunction.
18. In these circumstances, the judgment of the Court below need not be interfered with and they stand confirmed. The appeals are dismissed with costs.