Madras High Court
Flora Sunathi Samuel vs Thiruvannamalai Kundrakudi Adheenam on 23 March, 2018
S.A.No.492 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 10.01.2024 Pronounced on: 31.01.2024
CORAM :
THE HONOURABLE MR. JUSTICE P.B.BALAJI
S.A.No.492 of 2018
and
C.M.P.Nos.2145 of 2020 & 13452 of 2018
Flora Sunathi Samuel
...Appellant
Vs.
Thiruvannamalai Kundrakudi Adheenam,
rep. by its Adheenakarthar,
Sri La Sri Ponnambala Desiga Paramacharya
Swamigal, Kundrakudi, having his office at
Hotel Karpagam, No.19, South Mada Street,
Mylapore, Chennai.
...Respondent
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the Judgment and Decree dated 23.03.2018 passed in
A.S. No.70 of 2012 on the file of the Subordinate Judge, Tambaram
confirming the Judgment and Decree dated 31.07.2012 made in O.S.
No.728 of 2004 on the file of the learned Additional District Munsif,
Alandur.
For Appellant : Mr.C.P.Sivamohan
For Respondent : Mr.T.S.Ramaswamy for
Mr.V.Santhanam &
Mr.M.Krishnakumar
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S.A.No.492 of 2018
JUDGMENT
The defendant who suffered a decree for possession and removal of superstructure in a suit filed by Thiruvannamalai Kundrakudi Adheenam as plaintiff is the appellant herein.
2. The parties are described as per the litigative status before the Trial Court. The plaintiff filed O.S.No.728 of 2004 for the relief by way of direction to the defendant to remove the superstructure and to hand over the vacant possession of the suit property to the plaintiff Mutt.
3. The case of the plaintiff before the Trial Court was that the plaintiff is a religious trust and absolute owner of the suit property. One Mr.Shanmugam Sundaram Pillai, claiming to be the agent of the plaintiff mutt sold several plots belonging to the mutt and one such plot was purchased by the defendant. The defendant has also put up construction on the land so purchased through the said Shanmuga Sundaram Pillai. On coming to know of the high handed acts of persons like Shanmuga Sundaram Pillai, the plaintiff mutt caused extensive enquiry to be made and initiated action. The defendant had purchased one such plot through 2/14 https://www.mhc.tn.gov.in/judis S.A.No.492 of 2018 Shanmuga Sundaram Pillai, through Mary Isabel, the defendant in O.S.No.429 of 2000. The said Mary Isabel filed Writ Petitions before this Court, where she succeeded. However, the Commissioner HR&CE preferred Writ Appeals 1198 and 1199 of 1983 and the Division Bench of this Court on 01.11.1988 set aside the order passed by the learned single Judge and held that unless sanction is granted by the Commissioner, H.R.& C.E., the sale would be void ab-initio. The Division Bench of this Court directed the Commissioner HR&CE to reconsider the matter in the light of Sec.34 of the HR&CE Act. Thereafter, the Commissioner considered the entire matter and on 26.04.1989, rejected the application for sanction of sale of the suit property. The defendant was not only bound by the said judgment of the Division Bench of this Court, but also the consequent order of the Commissioner HR&CE. Further she was fully aware of all the proceedings. The plaintiff was therefore entitled for recovery of possession from the defendant who was not a bonafide purchaser from Mary Isabel.
4. The said suit was resisted by the defendant stating that the defendant was a bonafide purchaser for consideration and she has purchased the suit property only pursuant to a layout formed for the benefit of the 3/14 https://www.mhc.tn.gov.in/judis S.A.No.492 of 2018 plaintiff mutt. The defendant has put up construction after obtaining planning permission from the authorities concerned and has been in physical possession and enjoyment of the suit property in her own right and was therefore not liable or obliged to either remove the superstructure or hand over vacant possession of the suit property.
5. Before the Trial Court, one Mr.Suba Vaidhyanathan was examined as P.W.1 and exhibits Ex.A1 to A7 were marked. On the side of the defendants one Alivar Ravi was examined as D.W.1 and exhibits Ex.B1 to B13 were marked.
6. The Trial Court held that the plaintiff was entitled to a decree as prayed for and consequently decreed the suit. Aggrieved by the said judgment and decree of the Trial Court, the defendant preferred A.S.No.70 of 2012 and the First Appellate Court confirmed the findings of the Trial Court and dismissed the Appeal.
7. On 06.01.2020, the Second Appeal was admitted on the following substantial questions of law :
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https://www.mhc.tn.gov.in/judis S.A.No.492 of 2018 “a) Without seeking the relief of declaration, to declare that the Sale Deed dated 09.05.1983 is null and void, whether the Respondent Thiruvannamalai Kundrakudi Adheenam can claim for recovery of possession, that too after 21 years, much less when there has been no order revoking or canceling the Sale Deed dated 09.05.1983 by the very same Thiruvannamalai Kundrakudi Adheenam.”
8. I have heard Mr.C.P.Sivamohan, learned counsel for the appellant and Mr.T.S.Ramaswamy, for Mr.V.Santhanam, learned counsel for the respondent/mutt.
9. Learned counsel for the appellant would take me through the pleadings and documentary evidence adduced by the parties. He would vehemently contend that the Division Bench did not set aside the sale deed in favour of the defendant and merely state that because the Commissioner HR&CE, subsequently, has not accorded sanction for sale of the suit property, it would not entitle the plaintiff to seek recovery of possession, after a lapse of more than two decades. The learned counsel for the appellant would also state that the relief prayed for in the suit without 5/14 https://www.mhc.tn.gov.in/judis S.A.No.492 of 2018 seeking a declaration of sale deed in favour of the defendant to be null and void was not maintainable. In support of his contentions, learned counsel for the appellant would place reliance on the decision of Hon'ble Supreme Court in Government of Kerala and anr Vs. Joseph and Ors, reported in 2023 (5) CTC 664, where the Hon'ble Supreme Court held that the plea of adverse possession would not only be available as defence but as have a claim to a person who has perfected his title. He would also place reliance on the decision of this Court in Seetharaman rep. by power agent, Narasimman Vs. Jayaraman and Ors reported in 2014 3 CTC 802, where this Court held that when the plaintiff has slept over his right for more than 10 years and was acquired of the possession of the defendant, the suit for title and possession cannot be maintained. For the purpose of seeking a relief of declaration, the learned counsel for the appellant would place reliance on the decision of the Hon'ble Supreme Court in Anathula Sudhakar Vs. P.Buchi Reddy (dead) by L.R.s & Ors, reported in 2008 (6) CTC 337 and contend that the suit for possession simpliciter was bad in the eye of law.
10. Per contra, learned counsel for the respondent/plaintiff mutt 6/14 https://www.mhc.tn.gov.in/judis S.A.No.492 of 2018 would submit that the arguments in the Second Appeal can revolve only around substantial questions of law, if any. He would place strong reliance on the decision of the Hon'ble Supreme Court in Sugani Vs Rameshwar Das and another reported in (2006) 11 SCC 587 and contend that there was absolutely no substantial question of law that arose for consideration in the facts of the present case. He would also draw my attention to the decision of the Hon'ble Supreme Court in Dagadabai (dead) by L.Rs Vs. Abbas @ Gulab Rustum Pinjari reported in (2017) 13 SCC 705, where the Hon'ble Supreme Court held that plea of adverse possession was essentially based on facts and the parties placing reliance on the same should plead and establish it in accordance with law.
11. Learned counsel for the respondent would also place reliance on the decision of this Court in Ramasamy and another Vs. M/s.Arulmighu Visweswaraswamy Veeraraghavaperumal Temple and another reported in 2015 3 L.W. 924, where this Court discussed the concept of adverse possession and limitation and placing reliance on Sec.108 of HR&CE Act, held that the suit was not barred by limitation and the plea of adverse possession was also not proved or established in accordance with law. 7/14 https://www.mhc.tn.gov.in/judis S.A.No.492 of 2018
12. The learned counsel for the respondent would also rely on the decision of the Hon'ble Supreme Court in Kewal Krishan Vs. Rajesh Kumar & Ors etc., reported in 2021 SCC Online SC 1097 wherein the Hon'ble Supreme Court held that where the sale is void ab-initio, it is not necessary for the plaintiff to challenge the same by claiming a declaration that the said sale deed was null and void.
13. Coming to the substantial question of law framed by this Court on 06.01.2020, the crucial aspect that requires to be focussed on is the judgment of the Hon'ble Division Bench in W.A.Nos. 1198 and 1199 of 1988 dated 01.11.1988. The Writ Petition filed by one Mary Isabel came to be allowed by the learned single Judge of this Court. However, the Hon'ble Division Bench referring to Sec.34 of the HR&CE Act, held that any alienation contrary to the provisions of the Act would render it null and void or ab-initio and held that the order of the learned single Judge was tantamounting to a decree for specific performance which was beyond the jurisdiction of Art.226 of the Constitution of India and ultimately the Hon'ble Division Bench set aside the order of the learned single Judge and directed the Commissioner of HR&CE to reconsider the entire matter in the 8/14 https://www.mhc.tn.gov.in/judis S.A.No.492 of 2018 light of Sec.34 of the Act and the statutory considerations which are required to be borne in mind and decide the matter on the materials placed before him.
14. From a reading of the said judgment of the Hon'ble Division Bench and as contended by the learned counsel for the appellant, the Hon'ble Division Bench does not appear to have expressly set aside the sale deed in favour of the defendant. However, on a conjoint reading of the entire judgment and the reasons for setting aside the order of the learned single Judge with specific reference to the mandate of Sec.34 of the HR&CE Act, it is very clear that the sale in favour of one Mary Isabel was impliedly held to be void in the eye of law and only in such circumstances, there was a direction issued to the Commissioner, HR&CE to consider the matter in the light of the provisions of Sec.34. Consequently, as admitted by the parties, the Commissioner HR&CE went into the issue and thereafer refused to sanction the sale. All these cumulatively would go to show that the sale in favour of the said Mary Isabel was impliedly set aside as being null and void and ab initio in the light of the express language in Sec.34 of the HR&CE Act.
9/14 https://www.mhc.tn.gov.in/judis S.A.No.492 of 2018
15. As rightly pointed out by the learned counsel for the respondent mutt, the Hon'ble Supreme Court in Kewal Krishan's case held that when a sale is void ab-initio, it is not incumbent on the plaintiff to seek for declaration to declare such sale as null and void. Consequently, I hold that the decree for possession simpliciter is maintainable in the eye of law. In this connection I have also gone through the decision in Anathula Sudhakar's case referred herein above and on which reliance has been placed by the learned counsel for the appellant. The Hon'ble Supreme Court has summarised the position with regard to a suit for declaration and held that when the plaintiff was in possession, but his title to the property is under dispute or under cloud or when defendant asserts title and there is state of dispossession, the plaintiff must sue for possession with consequential relief of injunction. In cases where the plaintiff's title is under cloud or dispute and not able to establish his possession, plaintiff would have to file a suit not only declaration, but also for recovery of possession. The Hon'ble Supreme Court also held that a cloud is set to be raised over a persons title when there is some defect in his title to the property or when some prima facie right of a third party over it is made out or shown. The Hon'ble Supreme Court further held persons having clear title need not be 10/14 https://www.mhc.tn.gov.in/judis S.A.No.492 of 2018 driven to seek compulsory relief of a declaration, merely because of some intermeddler vexatiously making a claim. This judgment also does not in anyway come to the aid of the appellant.
16. In the instant case, the title of the plaintiff has never been in dispute. The only bone of contention is that the sale deed in favour of the defendant is in violation of Sec.34 of the HR&CE Act and therefore in such view of the matter, I do not find that the suit for recovery of possession alone, without a prayer for declaration of title being not maintainable in the eye of law.
17. Even with regard to question of adverse possession and limitation, Sec.108 of the Tamilnadu Hindu Religious and Endowments Act, 1959, runs thus:
“108. Bar of suits in respect of administration or management of religious institutions, etc., No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, 11/14 https://www.mhc.tn.gov.in/judis S.A.No.492 of 2018 except under, and in conformity with, the provisions of this Act.”
18. Therefore, in view of the same, there is no question of the suit being barred by limitation. Even with regard to the plea of adverse possession, there is absolutely no in this regard. Even otherwise, the defendant has not established by any sufficient or relevant oral and documentary evidence that his possession has been adverse to that of the plaintiff mutt over the statutory period of 12 years and that the same was open, hostile and continuous, with the full knowledge of the plaintiff mutt. The Hon'ble Supreme Court has held that for succeeding in a plea of adverse possession, there must be not only specific pleadings in that regard but also such pleadings have to be established. In the instant case, I have already found that the pleadings are totally lacking with regard to plea of adverse possession and much less no evidence in that regard was also let in by the defendant to prove that his possession has been adverse to the interest of the plaintiff.
19. For all the above reasons, I do not find any merit in the contentions put forth by the appellant/defendant. The substantial question of 12/14 https://www.mhc.tn.gov.in/judis S.A.No.492 of 2018 law is also answered against the appellant. Consequently, the Second Appeal is dismissed. The judgment and decree of the Courts below are confirmed.
20. The appellant shall remove the superstructure put up on the suit property and handover vacant possession of the suit property to the respondent/plaintiff on or before 31.05.2024 subject to filing an affidavit of undertaking in this regard within two weeks from today. In the event of the appellant not filing an undertaking affidavit within two weeks from today, it shall be open to the respondent/plaintiff to execute the decree forthwith. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
31.01.2024
Index : Yes/No
Internet : Yes/No
kpr
To
1. The Subordinate Judge, Tambaram.
2. The Additional District Munsif, Alandur.
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S.A.No.492 of 2018
P.B.BALAJI, J,
kpr
Pre-delivery Judgment in
S.A.No.492 of 2018
and
C.M.P.Nos.2145 of 2020 & 13452 of 2018
31.01.2024
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