Madras High Court
Pachaiyappa Kalvinilayangalin ... vs Saraswathi on 4 March, 2016
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04.03.2016 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN S.A.(MD)No.633 of 2015 Pachaiyappa Kalvinilayangalin Committee, Uppukottai, through its Secretary, G.Lakshmivasan S/o. Ganapathy Chettiar, No.4/71A, Perumal Koil Street, Uppukkottai Village, Uthamapalayam Taluk, Theni District. ? Appellant Vs. 1.Saraswathi 2.K.Sukumar 3.K.Sinnarasu ? Respondents Prayer: The above Second Appeal is filed under Section 100 of CPC against the judgment and decree dated 31.01.2013 made in A.S.No.25 of 2010 on the of Subordinate Judge, Theni, confirming the judgment and decree dated 21.11.2009 made in O.S.No.48/2004 on the file of District Munsif cum Judicial Magistrate, Bodinayakkanur. !For Appellant : Mr.R.Surianarayanan ^For Respondents : Mr.S.Kardarkarai :JUDGMENT
This Second Appeal is directed against the judgment and decree of the Subordinate Judge, Theni dated 31.01.2013 made in A.S.No.25 of 2010 on the of subordinate Judge, Theni, confirming the judgment and decree dated 21.11.2009 made in O.S.No.48 of 2004 on the file of District Munsif cum Judicial Magistrate, Bodinayakkanur.
2.While admitting this Second Appeal, the following substantial question of law was framed:
(1). Whether the suit property is the plaintiff?s property, which is purchased for the benefit of the school in the name of the first defendant, the then correspondent in a fiduciary capacity and hence the judgment of courts below is unsustainable in law?
(2). Whether the judgment and decree of the courts below without considering the provisions under Sections 88, 89 and 90 of Indian Trust Act, which contemplates that the property purchased by a trustee or agent in his name for the benefit of the beneficiary cannot be claimed as his own?
(3). Whether the first defendant is stopped from claiming the suit property as his own when the suit property is purchased for the school and in which he has no control over it as per Exhibits A6 to A10?
(4). Whether the judgment and decree of the courts below is vitiated due to the non consideration of oral, circumstantial and documentary evidences relating with the issue of declaration of a suit property, which show that the suit property is purchased by the first defendant in a fiduciary capacity out of trust money?
(5). Whether the Adangal Extracts, which were marked as Exhibits A6 to A12 are the best evidences for showing the possession and enjoyment of the suit property by the plaintiff though it was purchased in the name of the correspondent?
(6). Whether the finding of the courts below that since the plaintiff has not proved the means for purchasing the suit property it is presumed to be the property of the first defendant is erroneous by ignoring the property purchased in the fiduciary capacity at the behest of the school?
(7). Whether there is burden of proof on the plaintiff to prove that the suit property purchased by the first defendant out of the plaintiff?s fund when the first defendant was member of joint family, having no separate means or income and correspondent of the school?
(8). Whether the partition deed, which was marked as Exhibit A10 is binding on the first defendant and hence he is stopped from claiming the suit property as his own and also debarred from transferring the same to the second defendant and hence the sale in favour of the second defendant is null and void?
(9). Whether the First Appellant Court is duty bound to receive the additional documents when the conditions stipulated under Order 41 Rule 27 of Code of Civil Procedure are satisfied by the Appellant and hence the rejection same is invalid?
3.The short facts of the case is as follows:
The Appellant in this Second Appeal is the Appellant in the above First Appeal in A.S.No.25 of 2010, on the file of the Subordinate Judge, Theni and the plaintiff in O.S.No.48 of 2004, on the file of the District Munsif cum Judicial Magistrate, Bodinayakkanur. They filed a suit for declaration and injunction, declaring that the suit schedule property is exclusively and absolutely belongs to the plaintiff? school ? committee, controlled, managed and administered by the Trust and the Society and also for the consequential relief of directing the defendants 3 to 5 by the decree of mandatory injunction to remove all the construction effected by him and the structures put up by the deceased 2nd defendant and also to direct the defendants 3 to 5 do deliver the suit schedule property without any let or hindrance, within the time give by the lower court and in default to do the same through the process of law.
4.The case of the Appellant herein, who is the Plaintiff before the trial court is as follows:
The suit schedule property belongs to Pachaiyappa High School at Uppukkottai under the control and management of Pachaiyappa Kalvinilayangalin Committee, registered under the Societies registration Act as No.50 of 1981. One Pachaiyappan Chettiar the father of the first defendant founded the High School during the early sixties with the sole aim to eradicate illiteracy and he also settled almost all his properties upon a trust thereby he created for the purpose of control over the entire school machinery. The same was called as ?Pachaiyappa Trust?. He was in management of the said school till his lifetime. Subsequent to the death of the above said Pachaiyappan, the first defendant was inducted into the possession and management of the school and was made Secretary and Correspondent of the said school. He purchased the said suit schedule properties from one Mrs. Maragatham and others on 08.11.1966 from and out of the income derived from the properties settled through a trust deed to the said school.
5.Thereafter by consent of the first defendant, the revenue registry was also changed from the name of the first defendant to the school and the status continued even after the statutory period. The suit property was used as playground of the school. Therefore the suit property has become the property of the said school by way of adverse possession. Later on, as there were some misunderstanding arose in between the family members of the first defendant on account of his misdeeds and his illegal contact with a clerk of the said school kept as his mistress. While so, under her influence, he attempted to remove his wife Tmt.Sangarammal from the post of President of the Committee. Thereafter several litigations were also arose in between the parties and all were ended against the 1st defendant.
6.Thereafter, the son of the first defendant was made the Secretary by removing the first defendant from the post as per the byelaw. This first defendant was made an ordinary member of the said committee. Therefore aggrieved by this, he started alienating the trust properties in favour of the third parties. The family members objected to this and made publications in newspapers. Though the suit properties are shown as school playground in the Adangal Register, the first defendant has sold the same to the second defendant on 22.02.1992 by way of a registered sale deed. The above said deed is not valid and not binding upon the plaintiff, the plaintiff school has acquired the title by way of adverse possession.
7.Based on the sale deed, the second defendant has obtained a Patta for the said property and the same was challenged by the plaintiff by filing an Appeal against the Patta Transfer order and obtained an order of stay. The plaintiff also challenged the order passed by the Tahsildar by filing a suit in O.S.No.726 of 1992 before the District Munsif Court at Uthamapalayam for the relief of declaration and injunction. During the pendency of the above suit, the second defendant put up a shed and also constructed rooms in the suit schedule property and also put up a wooden gate and planted coconut and other trees in the said property. The construction was started in or about September, 1994 and ended with January, 1996 and after completion of construction work, the second defendant cultivating the suit property. Therefore, the suit was amended for seeking the relief of mandatory injunction to remove the constructions and for surrendering possession. Since the second defendant died during the pendency of the suit, his legal heirs were impleaded as the defendants. Thereafter, the first defendant also died during the pendency of the suit and hence the plaintiff sought for the relief of declaration that the suit property belongs to the plaintiff?s school committee and also for the relief of mandatory injunction to remove the constructions and to surrender possession of the same to the plaintiff?s school.
8.The case of the Respondents herein, who are the defendants 1 and 2 before the trial court is as follows:
According to the defendants, the defendants 1 and 2 have file the original written statement, wherein they have stated that the suit property is the exclusive property of the first defendant. The suit property was not purchased for the trust or out of the income derived from the trust. The first defendant alone had a title and possession and enjoyment over the suit schedule properties by virtue of purchase for his own agricultural income. It was left barren whenever there was scarcity of water, the first defendant did not object the school children from playing in the said property. Later, he has sold the said property to the second defendant and since then, the second defendant alone is the absolute owner in possession of the said property. The plaintiff has no locus standi to file the suit and he is not the Secretary and Correspondent of the school. The first defendant alone was the Secretary and Correspondent of the said school.
9.The defendants further pleaded that there was another suit in O.S.No.726 of 1992 was also filed for the same relief and is pending. Therefore, this suit is barred by resjudicata. The suit has not been properly valued and the court fees paid is not proper.
10.The case of the Respondents herein, who are the defendants 3 to 5 before the trial court is as follows:
The defendants 3 to 5 have filed separate written statement by pleaded that the relief of Mandatory injunction is barred by limitation. They further pleaded that the above suit, without the relief of declaration regarding the sale deed standing in the name of the second defendant is not maintainable and the suit has to be dismissed with costs.
11.Following issues were framed by the trial court while dispose of the suit, they are:
1/ thjp jhth brhj;jpd; KG chpikahsh; vd;gjw;fhd tpsk;g[if fl;lis tof;Fiuapy; nfl;Ls;sJ nghy gpwg;gpf;ff; Toajh//// ?
2/ thjpf;F tof;Fiuapy; nfl;Ls;sJ nghy; epue;ju cWj;Jf;fl;lisf;fhd ghpfhuk; fpilf;ff; Toajh?
3/ 08/11/1960k; njjpapl;l tpiyahjhuj;jpd; K:yk; 1k; gpujpthjp jhth brhj;jpy; fpiuak; bgw;Ws;shuh?
4/ 02/06/1992k; njjpapl;l tpiyahjhuk; bry;yj;jf;fjh?
5/ ,t;tHf;F mry; tHf;F vz;726-92 (khtl;l chpikapay; ePjpkd;wk;. cj;jkghisak;) tHf;F jhf;fy; bra;Js;sjpd; fhuzkhf Kd; jPh;g;gpd; jil vd;w njhc&j;jpw;F Ml;gl;Ls;sjh?
6/ ,t;tHf;fpy; rhpahd ePjpkd;w Kj;jpiuf; fl;lzk; brYj;jg;gl;Ls;sjh?
7/ ntW vd;d ghpfhu';fs; thjpf;F fpilf;ff; Toait?
The following additional issues were framed:-
1/ jpUj;jy; gpuhjpy; nfhhpa[s;sgo thjpf;F braYWj;Jf;fl;lis ghpfhuk; fpilf;ff; Toajh?
12.The trial court after elaborate trial erroneously dismissed the suit with costs thereby the plaintiff / Appellant herein is not entitled for the relief of declaration or recovery of possession or mandatory injunction, and it is held that the plaintiff is not entitle for any relief. It is further held that, as this suit is not properly valued and the court fee paid is also incorrect, and the plaintiff is directed to value the suit under Section 25(a) of the Tamilnadu Court Fees and Suit Valuation Act for the relief of declaration and recovery of possession and to pay the deficit court fee for the said relief.
13.Aggrieved by the judgment and decree of the trial court, the plaintiff in this suit has preferred an Appeal in A.S.No.25 of 2010 before the Subordinate Judge, Theni. However, the lower appellate court by its judgment and decree dated 31.01.2013 dismissed the above first appeal by confirming the judgment and decree of the trial court.
14.Being aggrieved, the present second appeal has been preferred by the Appellant.
15.The learned counsel Mr.R.Suriyanarayanan appearing for the Appellant in this Appeal challenged the findings recorded by the first appellate Court by confirming the trial court.
16.The following points arise for consideration in these second appeals:
The first defendant has no independent income as he had settled all his family properties to the plaintiff?s school on 21.09.1961 and during his tenure as Secretary of the said school only, he purchased the suit schedule property in his name out of the income derived from the school property and hence the burden of proof is on him to establish that he was having sufficient means to purchase the said property. While so, both the trial court as well as the lower appellate court wrongly cast upon the burden of proof on the plaintiff.
17.The trustee or the secretary, who purchased the property in his name for the trust or society, then only with a fiduciary capacity it is purchased and hence he cannot claim the same at later point of time. As per Exhibits A8 to A13, series of Adangal Extracts clearly shows that the plaintiff school used the suit property as a playground. From 1966 till 1992, the 1st defendant did not claim the suit property as his own at any point of time. By way of Exhibit A40, there is an stopped on the 1st defendant to claim the suit property as his own. As per Exhibit A40 clearly shows that the first defendant has no power of alienation and hence the sale in favour of the second defendant is void and subsequent possession and enjoyment of other defendants is illegal and the plaintiff school has every right to recover the same from the defendants.
18.This court finds that the First Appellate Court simply reword the judgment and decree of the trial court. Therefore this court is safely come to a conclusion that the suit schedule property is exclusively and absolutely belongs to the plaintiff? school, i.e., Pachaiyappa High School at Uppukkottai under the control and management of Pachaiyappa Kalvinilayangalin Committee, controlled, managed and administered by the Trust and the Society and the defendants 3 to 5 are hereby directed to remove all the construction effected by him and the superstructures put up by the deceased second defendant and also directed the defendants 3 to 5 to deliver the suit property without any let or hindrance within a period of three months.
19.Hence on the score of it, I conclude that the question of law favouring the Appellant herein and the findings of the lower appellate court in its judgment and decree dated 31.01.2013 made in A.S.25 of 2010 on the of subordinate Judge, Theni, confirming the judgment and decree dated 21.11.2009 made in O.S.No.48 of 2004 on the file of District Munsif cum Judicial Magistrate, Bodinayakkanur, is hereby set aside and declared that the suit schedule property is exclusively and absolutely belongs to the plaintiff? school, i.e., Pachaiyappa High School at Uppukkottai under the control and management of Pachaiyappa Kalvinilayangalin Committee, controlled, managed and administered by the Trust and the Society and the defendants 3 to 5 are hereby directed to remove all the construction effected by him and the superstructures put up by the deceased second defendant and also directed the defendants 3 to 5 to deliver the suit property without any let or hindrance within a period of three months.
20.In the result, the above Second Appeal is allowed. Consequently, connected miscellaneous petition is closed. No costs.
To
1. The District Munsif cum Judicial Magistrate Court, Bodinayakkanur.
2. The Subordinate Court, Theni..