Madras High Court
N.Chandrasekaran vs Arulmighu Thiruvatteeswarar ... on 31 January, 2020
Equivalent citations: AIRONLINE 2020 MAD 158, (2020) 1 CURCC 340 (2020) 1 MAD LW 631, (2020) 1 MAD LW 631
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
A.S.No.568 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31-01-2020
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
A.S.No.568 of 2019
And
C.M.P.No.17584 of 2019
1.N.Chandrasekaran
2.Uma Rani (Deceased)
3.R.S.Srikanth (Deceased)
4.R.S.Murali
5.R.S.Anand
6.Mrs.Rajini Krishnakumar .. Appellants/Defendants
vs.
Arulmighu Thiruvatteeswarar Thirukkoil
Represented by its Executive Officer,
having Office at Thiruvatteeswaranpettai,
Triplicane,
Madras-600 005. .. Respondent/Plaintiff
Appeal Suit is preferred under Section 96 of the Code of Civil
Procedure against the judgment and decree dated 22.09.2017 passed
in O.S.No.345 of 1996 on the file of the learned IV Additional Judge,
City Civil Court, Chennai.
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http://www.judis.nic.in
A.S.No.568 of 2019
For Appellants : Mr.A.Chenchurama Redddy
For Respondent : Mr.S.D.Ramalingam
JUDGMENT
The original suit in O.S.No.345 of 1996 was instituted by Arulmighu Thiruvatteeswarar Thirukkoil represented by its Executive Officer against the appellants in the present appeal suit.
2. The appellants in the appeal suit are the defendants in the suit and the respondent in the appeal suit is the plaintiff in the suit.
3. For the sake of convenience, the ranking of the parties in the appeal suit would be referred to as per their ranks in the Trial Court.
4. The facts, as narrated, in the plaint by the respondent/ Temple are that the property bearing No.11, Pillaiyar Koil Street, Chennai-5, comprised in Survey No.644/5, belongs to the plaintiff- Devasthanam and there is a Mandapam constructed with the granite stones. In the Mandapam, during the Brahmotsavam festival on the 2/88 http://www.judis.nic.in A.S.No.568 of 2019 seventh day, when the car festival being conducted, the Utsava Deity will be taken to the Mandapam and it will be kept there till the evening before the same is taken back to the respondent/Temple. The Mandakapadi for that was carried on by one Mr.Venkoba Rao for several years. The said Mr.Venkoba Rao was permitted to run an Elementary School in the Mandapam with the condition that on the date of the festival, everything will be cleared and the Mandakapadi will be done by the said Mr.Venkoba Rao at his expenses. In lieu of the Mandakapadi expenses, the said Mr.Venkoba Rao was permitted to run an Elementary School in the Mandapam. The 1 to 15 Registers contain the suit property and the same was prepared and approved by the Special Tahsildar and finally approved by the Hindu Religious and Charitable Endowments Department as per the provisions contained in the Hindu Religious and Charitable Endowments Act.
5. Originally, the Temple was under the supervision and control of the then Trustees, at the time of permitting the second defendant's father to use the property. Subsequently, the plaintiff- Temple was brought under the control of the Hindu Religious and Charitable Endowments Department and the Trustees were appointed by the Endowment Department. Certain mismanagement of the said 3/88 http://www.judis.nic.in A.S.No.568 of 2019 Trustees, the Executive Officer was appointed by the Hindu Religious and Charitable Endowments Department under Section 45(1) of the Hindu Religious and Charitable Endowments Act. The said Mandapam bears the carvings of different statues and bears the characteristics of the Mandapam and the entire structure was constructed with stones. The plaintiff-Devasthanam is the absolute owner of the property and the revenue records were also in the name of the plaintiff- Devasthanam.
6. The said Mr.Venkoba Rao left a Will bequeathing some of his properties and he has included the Mandapam, which was let out to him on lease and was permitted to run a School, with a view to create a document as if he is the owner. The beneficiaries under the Will, the second defendant and her mother probated the Will as per the orders of this Court in O.P.No.208 of 1975. The plaintiff-Devasthanam is not a party in that proceedings and hence the said order is not binding on the plaintiff-Devasthanam. The second defendant has somehow managed to transfer the patta in her name, in the year 1990 under proceedings dated 06.04.1990. The second defendant's father has also managed to transfer the Corporation Tax in his name and the abovesaid transfer of patta and Corporation Registers, by the Tahsildar 4/88 http://www.judis.nic.in A.S.No.568 of 2019 and the Corporation of Chennai, without any notice to the plaintiff- Devasthanam is illegal and ab initio void and opposed to all principles of natural justice.
7. The Temple is the owner or Trustees of the property and their right to recover the property from the defendants has not been extinguished in view of Section 109 of the Act XXII of 1959. The special provisions made under the Act prevails over the general provisions contained in the Limitation Act. The plaintiff's right to recover possession has not been extinguished prior to 30.09.1951 and hence the plaintiff is entitled to recover the property.
8. The second defendant seems to have sold the property, belongs to the Devasthanam, to the first defendant without the knowledge of the plaintiff and when the first defendant attempted to demolish the Mandapam with a view to cause damage to the same, plaintiff's Executive Officer has given a complaint to the D-4 Police Station on 02.06.1994 and the defendants temporarily stopped demolishing the Mandapam. The said Mandapam is one of the oldest one and it is very difficult to construct the same once again and in those circumstances to prevent the further damage being caused, the 5/88 http://www.judis.nic.in A.S.No.568 of 2019 plaintiff filed the suit O.S.No.4227 of 1994 for bare injunction to prevent further demolition of the Mandapam ands obtained the orders of injunction against the defendants.
9. The defendants have demolished the roof of the Mandapam at one corner and has removed the stones with the carvings. The defendants have no right to remove any stone or carvings from the Mandapam and by removing home portions, they have caused damage to the plaintiff's property. The plaintiff estimates the value of the damage caused by the defendants by their illegal act of removal of corner stones in the roof at Rs.5,000/- and the defendants are liable to pay the same to the plaintiff.
10. As far as the Devasthanam is concerned, the defendants are only trespassers of the property, since they deny that the second defendant's father was the tenant of the Devasthanam, who was allowed to run a School. Hence the plaintiff is obliged to file the suit for the recovery of possession of the property from the defendants. The first defendant is in illegal occupation of the property and hence, he is liable to pay damages for wrongful use and occupation at the rate of Rs.3,000/- per month from the date of the 6/88 http://www.judis.nic.in A.S.No.568 of 2019 plaint to the date of recovery of possession.
11. The plaintiff-Devasthanam is the owner of the property and the defendants, who are in possession of the property, are now trying to encumber and meddle with the property by transferring or leasing out to some third persons with a view to cause loss and hardship to the plaintiff-Devasthanam. Thus, the plaintiff- Devasthanam had issued a notice to the defendants on 26.11.1994 and thereafter instituted the suit.
12. The defendants denied the averments in the plaint by filing a written statement. It is stated that the claim of the plaintiff in O.S.No.4227 of 1994 is in respect of R.S.No.646/5 and now lays the hands for property in R.S.No.644/5, which is the private property of the defendants. The property No.11, Pillaiyar Koil Street, Triplicane, Chennai-5, which belongs to the first defendant having purchased by him for a valid consideration under the Sale Deed dated 24.03.1992. The said property is situate in R.S.No.644/5 and not in any other R.S. Number as claimed by the plaintiff in the previous suit O.S.No.4227 of 1994. It is not a Mandapam nor belongs to the plaintiff. Late Venkoba Rao was performing Mandakapadi as his service to the Deity, which is 7/88 http://www.judis.nic.in A.S.No.568 of 2019 stopped even during his lifetime and Late Venkoba Rao was not running any school. The defendants state that any devotee can offer Mandakapadi at his place in the past days as there was limited population.
13. The claim by the plaintiff is barred by limitation and the defendants have also perfected their title by adverse possession even as early as 1955. The defendants owned the property in their own capacity. It is originally belonged to the second defendant's predecessor in title which was purchased by the first defendant under a valid Sale Deed. Merely because the property bears the characteristic of Mandapam, it is not a Mandapam nor belongs to the plaintiff. The alleged Registers, mentioned in the plaint, do not relate to the suit property. The plaintiff may be directed to produce the documents submitted in the earlier suit O.S.No.4227 of 1994.
14. The Temple is not the owner at any point of time. Event if it is so, the plaintiff's right over the same is last long back and their right to recover extinguished. Merely carving on the pillars alleged to bear the characteristic of Mandapam does not mean it belongs to the plaintiff. As the rightful owner Mr.Venkoba Rao 8/88 http://www.judis.nic.in A.S.No.568 of 2019 executed a Will in respect of the suit property along with other properties owned by him and the allegations about the Will and Probate are true.
15. The plaintiff is the stranger to the said Will and Probate proceedings and therefore they are not parties therein. The law permits for transfer of revenue records to the lawful owner and no notice need be given to strangers. The basic factor of their right to the property must be proved by documentary evidence before questioning the right of the other persons. Even before 1988, the land and the superstructure belongs to the second defendant's predecessors. It is a private property of one Mr.Lakshmana Rao as it is evident from the letter dated 09.08.1968 of Mr.G.Srinivasan, father of the second defendant, which was received by the Commissioner of Police, Egmore, Chennai-8 on 12.08.1968. The said Mr.G.Srinivasan, father of the second defendant, had been paying the Corporation Tax and the same has been changed in the defendants name now. Further no rents or license fee is paid to the plaintiff at any point of time. The Deity was never brought to the suit property in the near future. Right from the year 1975, there were only shops and not any school. All along the suit property was dealt by the previous owner and never by the plaintiff. 9/88 http://www.judis.nic.in A.S.No.568 of 2019 Mandakapadi was carried on for some years and was discontinued three decades ago. The said property is subjected to Estate duty as early as 22.03.1977 on the death of the father of the second defendant, as it is evident from the Discharge Certificate issued by the Assistant Commissioner of Estate Duty under Sections 67, 68 and 69. The probated Will dated 16.10.1974 by Mr.Srinivasa Rao, the father of the second defendant, also clarifies the fact that the suit property belongs to the family of the second defendant. As on date, the first defendant is the owner of the property having got the same from the rightful owner. the second defendant.
16. On the complaint by the plaintiff, the police were satisfied that he property belongs to the first defendant and directed the plaintiff to have the remedy if any, in a competent Civil Court. There is no Mandapam nor Mandakapadi for over 30 years. The documents filed along with the plaint do not prove any title to the plaintiff. Further, the case was transferred from the High Court and an ex parte injunction was granted against the defendants. The first defendant contended that it is his own property, which he is demolishing. The first defendant's vendor and their predecessors in title has permitted the Muslim to keep Panja during Allahasami 10/88 http://www.judis.nic.in A.S.No.568 of 2019 Festival. The plaintiff is the Hindu Temple and how could they allow if the premises belonged to them or how did they keep quite. The defendants are not the trespassers. Never any less amount was paid to the plaintiff either by the defendants or their predecessors. While-so, the claim of Rs.3,000/- per month is baseless.
17. Additional written statement of defendants 4 to 6 were filed and in the additional written statement, it is stated that the defendants 4 to 6 are the heirs and legal representatives of the second and third defendants, who are none other than their parents. Originally, the suit was filed by the plaintiff against the defendants 1 and 2 for possession and for other reliefs. Defendants 1 and 2 have filed their written statement in the suit on 26.07.1996 and these defendants adopt the written statement and in addition to the same, they have stated that the suit was tried on merits by this Court.
18. PWs-1 to 4 were examined on the side of the plaintiff and Exs.A-1 to A-18 were marked as documents on the side of the plaintiff. On the side of the defendants, DWs-1 and 2 were examined and Exs.B-1 to B-15 were marked as documents on the side of the defendants and Exs.C-1 to C-4 were marked as Court exhibits. PW-1 11/88 http://www.judis.nic.in A.S.No.568 of 2019 had deposed that he did not file any document to show the list of properties owned by the Temple and he is also not aware how the suit property has been owned by the Temple. PW-1 further deposed that he did not file any documentary evidence to prove that Mandakapadi was done in the suit property and further admitted that no Mandakapadi had taken place in the suit property for 15 years. PW-1 further deposed that he had filed a suit against the same defendants in O.S.No.4227 of 1994 with respect to the suit property. In the said suit, the Survey Number of the suit property was mentioned as 646/5 as per the Register maintained by the Temple. PW-1 further deposed that he had not filed any patta in the name of the Temple and therefore, the suit property was allotted to one Mr.Venkoba Rao and they are not aware of the date of let out of the suit property to the abovesaid Mr.Venkoba Rao. PW-1 admitted that whenever a property of the Temple is let out to any third party, leased deed will be executed and he has not filed any document to prove that the suit property was let out to Mr.Venkoba Rao. PW-1 admitted that the plaintiff has not paid any property tax for the suit property to the Chennai Corporation and the metro water, drainage and electricity connections are not in the name of the plaintiff. PW-2 employed as Gurukkal in the plaintiff- Temple and PW-3 is the employee of the plaintiff-Temple. 12/88 http://www.judis.nic.in A.S.No.568 of 2019
19. DWs-1 and 2 evidences were also taken into account. DWs-1 and 2, in their evidence, states that the first defendant purchased the suit property from the second defendant for Rs.3,00,000/-, patta for the suit property was originally given in the name of Smt.Padma Bai, who is none other than the mother of the second defendant and subsequently, patta for the suit property has been mutated in the name of the first defendant. Further, the property tax, metro water and drainage tax, electricity for the suit property stands in the name of the first defendant. It is further deposed that the plaintiff filed an earlier suit in O.S.No.4227 of 1994, which is marked as Ex.B-7 in the above suit and the Survey Number mentioned in the abovesaid suit is 646/5. The defendants 1 and 2 filed their written statement in O.S.No.4227 of 1994 where they have given the correct survey number and further deposed that the suit property absolutely belonged to the second defendant's ancestors. In judgment dated 23.12.2003, the Trial Court held that the defendants have proved that they are the owners of the suit property. As against the judgment and decree, the plaintiff filed A.S.679 of 2004 before this Court and the said appeal suit was allowed and the suit was remanded back for fresh disposal on merits by observing that the Trial Court to conduct the trial 13/88 http://www.judis.nic.in A.S.No.568 of 2019 afresh in accordance with law and also to consider the aspects such as when the correction has been made in the Town Survey Field Register and on what basis, it has been corrected and also permit the plaintiff to mark (i) certified copy of the proceedings of the Commissioner dated 03.01.2005 and (ii) copy of the letter dated 15.07.2011 from the Collector to the Executive Officer along with the copy of the letter of the Settlement Officer dated 12.04.1971.
20. Initially, the Executive Officer of the plaintiff-Temple namely Mr.S.Bharathi had been examined as PW-1 on behalf of the plaintiff and PWs-2 to 4 were also examined as witnesses on the side of the plaintiff and Exs.A-1 to A-30 were marked as documents on the side of the plaintiff. On the side of the defendants, DWs-1 and 2 were examined as witnesses and Exs.B-1 to B-21 were marked as documents on the side of the defendants. On behalf of the Court, Exs.C-1 to C-4 were marked as Court documents. Based on the abovesaid evidences and the documents produced by the parties, the Trial Court by its judgment dated 22.09.2017 had dismissed the suit. Against which the plaintiff preferred an appeal before the High Court in A.S.No.679 of 2004 and the matter was remanded back to the Trial Court. Accordingly, the issues were recasted by the Trial Court as 14/88 http://www.judis.nic.in A.S.No.568 of 2019 under:-
“(1) Whether the suit property is the absolute property of the plaintiff's temple or the private property of the defendants as claimed by the defendants ?
(2) Whether the plaintiff is entitled for the relief of recovery of possession of the suit property from the defendants without claiming the relief of declaration of title ?
(3) How and when and on what basis the extract of Ex.A-22/Ex.C-1 Town Survey Field Register had been corrected ?
(4) Whether the suit claim is barred by limitation in view of Section 109 of Hindu Religious and Charitable Endowment Act as amended by Tamil Nadu Act 28 of 2003 as contended by the defendants ?
(5) Whether the first defendant has demolished a portion of the Mandapam and caused damages to the plaintiff to the value of Rs.5,000/- and is liable to pay the same to the plaintiff ?
(6) Whether the defendants are in wrongful occupation of the suit property and are liable to pay the plaintiff Rs.3,000/- per month from the date of plaint till the delivery of possession as mesne profits for their use and 15/88 http://www.judis.nic.in A.S.No.568 of 2019 occupation ?
(7) Whether the plaintiff is entitled for the injunction prayed for against the defendants ?
(8) To what relief the plaintiff is entitled ?
9. Further, PW-2 Ms.Anusha Devi, who was the then Assistant of the plaintiff temple had been examined and Exs.A-1 to A-29 had been marked and Ex.A-30 had been marked during cross-examination of PW-2. Further, on behalf of the plaintiff one Mr.V.S.Durai Rajan had been examined who had been inadvertently referred as PW-2 in the suit proceedings had been examined as PW-3.
10. On behalf of the defendants, the first defendant had been examined as DW-1 and the defendant counsel had accepted the earlier marked document Exs.B-1 to B-15 and subsequently marked Exs.B-16 to B-21.
Further, one Mr.Murali who is the fourth defendant had been examined as DW-2.”
21. The Trial Court, after hearing the parties, and considering the evidences, documents and the witnesses produced made a finding that the suit property bearing No.11, Pillaiyar Koil 16/88 http://www.judis.nic.in A.S.No.568 of 2019 Street, Chennai-5 comprised in Survey No.644/2005 belongs to the plaintiff-Temple and there is a Mandapam constructed in the suit property with granite stones in which the Mandakapadi was carried out by one Mr.Vengoba Rao for several years and he was permitted to run an Elementary School in the said Mandapam with a condition that the Mandakapadi will be done by the said Mr.Vengoba Rao at his expenses and in view of certain mismanagement of the properties of the temple by the Trustees, the Executive Officer was appointed by the Hindu Religious and Charitable Endowments Department on 02.08.1993, the Mandapam bearings carvings of different statues and the entire structure was constructed with stones. The said Mr.Vengoba Rao bequeathed all his properties by way of a Will, including the said Mandapam, which was let out to him on lease. The deceased second defendant and her mother probated the Will as per the order of this Court passed in O.P.No.208 of 1975 in which the Temple was not made as a party and the transfer of patta and Corporation Tax are done without notice to the plaintiff.
22. The right of the Temple, being the owner of the suit property, from the defendants had not been extinguished in view of Section 109 of Act XII of 1959. The deceased second defendant had 17/88 http://www.judis.nic.in A.S.No.568 of 2019 sold the property to the first defendant without the knowledge of the plaintiff and the deceased second defendant had represented by defendants 3 to 6. When the first defendant attempted to demolish the Mandapam. The Executive Officer of the plaintiff gave Ex.A-3 complaint on 06.06.1994. The first defendant had temporarily stopped the work, then the plaintiff had issued Ex.A-5 legal notice dated 26.11.1994. The defendants had sent a reply with false allegations. The defendants had demolished the roof of the Mandapam at one corner and had removed the stone with the carvings. According to the defendants, the second defendant got the property under the Will from her father and the property was purchased by the first defendant from the second defendant. Further, there was no Mandapam and it is a private property belonging to one Mr.Vengoba Rao and the Mandagapadi was discontinued three decades ago as the previous owner withdraw the service and the defendants had perfected the title by the adverse possession by being in the property for more than 100 years.
23. To prove there is a Karungal Mandapam, the plaintiff had produced Exs.A7 to A11 photographs which shows the stone carvings on the pillar. The height of the Mandapam from the ground level is more than 5 feet which is shown in the photograph. The first 18/88 http://www.judis.nic.in A.S.No.568 of 2019 defendant had impliedly admitted that there was a Mandapam and Mandakapadi was done for several years. DW-2 had also admitted that the suit property had been constructed with Karungal pillars and the floor of the suit property is a karungal floor. Further DW-1 had admitted that the suit property is aged about 75 years whereas concrete buildings were constructed only for the 20 years. Further, Ex.A-25 which is the settlement Tahsildar order dated 12.04.1971 which revealed that the suit property is a Inam land given under the title deed by the British Government to the temple and the Survey No.64/5 is a Mandapam. After enactment of minor Inam Abolishing Act 1963, the suit property and other lands were notified under the Act on 15.02.1965 and as per Section 46 the order passed by the Assistant Settlement Officer is final and appeal will lie to the Settlement Officer and then to the Commissioner of the Land Revenue as per law. No suit in a Civil Court, challenging the decision of the Assistant Settlement Officer as per Ex.A-25 is maintainable.
24. it is stated in Ex.A25 that the survey No.644/5 is a Mandapam building belonging to the Devasathanam. The date of the order in Ex.A-25 is 12.04.1971 which is mentioned in the top as well as last page after the signature of settlement Tahsildar and not 19/88 http://www.judis.nic.in A.S.No.568 of 2019 12.06.1977 as alleged by the defendant. Ex.A-19 Register prepared by the Special Officer for the Temple land shows the school in the Mandapam. Further, Ex.C4 is the Final Town Survey and Resettlement Register dated 20.08.1998, which is produced on subpoena shows in page No.30 that Survey No.644/5 is a Ryotwari land measuring 822 sq. feet and in column No.14 it was mentioned as the owner is Thiruvateeswaranpettai by the then Trustee. In this Register, the first defendant name was not there and neither the first defendant or nor Mr.Vengoba Rao were trustees of the Temple. The defendants had admitted Ex.A-5 to A-11 in respect of suit property. Ex.A-21 Register maintained by the plaintiff under Section 29 Hindu Religious and Charitable Endowments Department Act and the item Nos.26 and 29 were shown as Mandapam.
25. The original patta had been issued in the name of temple by Inam abolishing order, which was changed in the name of Padma Bai without any notice to the plaintiff. In Ex.A-22, it has been mentioned as the name had been changed as per proceedings dated 06.04.1990. But Ex.C-2 revealed that the above mentioned proceedings is with respect of property in Survey No.1247 bearing No.26, Swami Pillai Street, Triplicane. Thus, it is clear that the patta 20/88 http://www.judis.nic.in A.S.No.568 of 2019 had been obtained in the name of Padma Bai fraudulently. Defendants did not challenge the proceedings dated 12.04.1971, which is marked as Ex.A-25, wherein it was ordered to issue patta in the name of the Temple. Ex.A-28 letter shows that the proceedings mentioned in Ex.A- 22 the alleged patta in the name of Padma Bai had been destroyed and the transfer proceedings in the name of the second defendant is not available. It shows that the said Smt.Padma Bai managed to get the transfer entry made in the TSLR. Ex.B-1 sale deed in the name of the first defendant executed by the second defendant is not valid as the Will executed by Padmavathy Bai had not been probated. Though the Will executed by in favour of Padmavathy Bai had been probated on 23.10.1975 Padmavathy Bai applied for the patta only in the year 1990 and obtained patta. The defendants did not explained why the said Padmavathy Bai did not applied for patta from 1975 to 1990. Exs.C-1 and C-2 are the proceedings for transfer of patta and in Ex.C- 1, it was mentioned that the application was made on 3.12.1992 and notice had been directed to be issued for calling objections. Further on 04.12.1992, an endorsement was made that no objection was received and the patta had been issued immediately. Transfer of patta without notice to the patta holder is not valid.
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26. The defendants did not file any documents to show that from whom the property was purchased and subsequently transferred to Mr.Vengoba Rao. According to the defendants, one Mr.Lakshmna Rao was the owner in the year 1888 then Mr.Vengoba Rao and then Mr.Srinivasa Rao. In Ex.B-14, though the said Srinivasa Rao had sent a letter on 09.08.1968 about losing of original documents there was no mention about the details of the documents and the defendants failed to show further steps taken in this regard. The defendants could have obtained certified copy even though the original might be missing and no patta in the names of Mr.Srinivasa Rao and Mr.Vengoba Rao had been filed. There is no collector’s certificate to prove title or possession of Mr.Lakshmana Rao prior to 1947. DW-1 and DW-2 did not have personal knowledge about Ex.B-
14. Further, there is not mention in the Ex.B-1 Sale Deed about the 1888 document and the said Lakshmana Rao was put in possession of the property in the year 1912. Whereas, as per Ex.B-14 the original document is of the year 1888, which is not possible. In Ex.B-1 the Survey Number is mentioned is 644 and not as 644/5. As per Ex.B-1 Sale Deed the area of the land is 822 sq. feet with the built up area is 760 sq. feet, whereas DW-1 had admitted that there is no vacant land in the suit property. In Ex.B-1 age of the building is shown as 75 years 22/88 http://www.judis.nic.in A.S.No.568 of 2019 and Mandapam is more than 100 years old.
27. Mere probate of the Will is not confirmation of title as the probate proceedings are limited to the genuineness of the Will propounded and nothing more. As per the decision of Hon'ble Supreme Court in the case of Hem Nolini Judah vs. Isolyne Sarojbashini Bose [AIR 1962 SC 1471], the Temple need not challenge the order of probate proceedings as the probate Court cannot decide the title of the any property mentioned in the Will. The first defendant had demolished the entire Mandapam when the first appeal was pending. Further Ex.B-3 is the copy of the plaint which is only for the relief of injunction and due to wrong survey number it was not proceeded with. The other corporation tax did not confer title for the defendants. The defendants cannot take up the plea of adverse possession without admitting the title of the temple to the suit property. As per section 109 of Hindu Religious and Charitable Endowment Act, the limitation will not apply for recovery of properties of religious institutions. The said amendment was made under the Act 28 of 2003 and the suit had been filed in the year 1996 as the Amended Act, applied to the pending proceedings also as per the judgment of this Court in the case of Arulmigu Kolavizhi Amman Temple, G.N. Chetty Street, 23/88 http://www.judis.nic.in A.S.No.568 of 2019 Mylapore-4. rep. by the Executive Officer, Arulmigu Kapaleeswarar Temple, Mylapore, Madras-4 vs. R. Shamugham (died) & 48 others [2008 (3) MLJ page 732], which is confirmed by the Division Bench Judgment of this Court in the case of R. Mohanasundaram vs. Arulmigu Kolavizhi Amman Temple [2012 (2) MLJ 321].
28. With the regard to the claim of the defendants that the relief of declaration of title had not been prayed, the plaintiff state that the temple is more than 500 years old, the title deeds given by the British Government more than 400 years old which is mentioned in the proceedings of the settlement officer dated 12.04.1971. Ex.A-22 revealed that the patta was in the name of the temple and Ex.C-3 reveals that the name of the temple had been struck off. In Ex.A-24 letter from Tahsildar to the Temple reveals that the plaintiff-Temple Dharamakartha below, which the name of the 1st defendant had been mentioned, though the first defendant was never a Trustee for the Temple. In Ex.A-25 and Ex.C-4 revealed that the property stands in the name of the plaintiff, which had been fraudulently corrected subsequently by the defendants. The plaintiff had proved the ownership by revenue records and either the Ex.B-1 Sale Deed or the 24/88 http://www.judis.nic.in A.S.No.568 of 2019 other documents filed by the defendants did not confer any title to the defendants. Hence, there is no cloud on the title of the plaintiff which requires relief of declaration of title. The plaintiff had claimed damage for wrongful use and occupation at Rs.3,000/- per month which reasonable as the property is situated in prime locality of Chennai. The interest of the idol of the temple had to be protected by the court and hence prayed to allow the suit claim.
29. Wheres, the defendants had submitted that this Court in the appeal preferred by the plaintiff had observed that no documents such as property register, settlement proceedings on any other documents filed to show the land is absolutely belonged to the Temple. Further, no documents were produced to show the property was handed over to the possession of Mr.Vengoba Rao. As per Section 109 of Hindu Religious and Charitable Endowment Act, the Limitation Act will not be applicable for any suit for possession of immovable property belonging to any Religious Institution. This section will applicable only there is no dispute with regarding to the ownership and there should be landlord tenant relationship between the parties. But in this suit, the defendants had been in possession of the property as its owner and the plaintiff did not prove when the possession was 25/88 http://www.judis.nic.in A.S.No.568 of 2019 delivered to the defendant or their predecessor. Hence, the suit for possession without declaration is not valid. The suit had been filed in the year 1996, whereas the amendment in Section 109 had been made in the year 2003. Unless the plaintiff proves their possession and ownership as on 30.09.1951 the Amended Act will not be applicable in this case.
30. The plaintiff was aware of the probate of Will in the year 1975 and did not challenge the said probate order. The plaintiff had filed suit in O.S.No.4227 of 1994 against the defendants in which the Survey Number of the suit property had been mentioned as 646/5. The plaintiff had withdrawn the suit without obtaining leave from the Court. Hence, the present suit for same cause of action is not maintainable. In the Ex.A-5 legal notice dated 26.11.1994. It was mentioned that the plaintiff had permitted Mr.Vengoba Rao to run a school and did not explain how to property is let out to Mr.Vengoba Rao to run a school without execution of lease deed. As per Section 34 of Hindu Religious and Charitable Endowment Act the lease period is for only 5 years and lease has to be published in Tamil Nadu Gazette. Without doing so, the plaintiff has not right over the suit property. Ex.A-19 Register are created by the plaintiff as the documents 26/88 http://www.judis.nic.in A.S.No.568 of 2019 established that Mr.Srinivasa Rao is in possession of the property in Survey No.646/5, whereas the suit property is 644/5. In Ex.A-20. the Commissioner, Hindu Religious and Charitable Endowment had corrected the Survey Number as 644/5, which amounts to manipulation of record. The plaintiff despite instruction from this Court about the information regarding when the correction had been made in the Town Survey Field Register, the plaintiff did not offer any explanation. The commissioner, Hindu Religious and Charitable Endowment Department vide Ex.A-20 had corrected the Survey Number without any authority. Ex.A-22 the patta in the name of Padma Bai and subsequently in the name of Mr.N.Chandrasekaran, who had been mentioned as Dharmakartha of the Temple, which had been created by the plaintiff-Temple for the purpose of the suit.
31. Further, in Ex.A-25 letter from the Collector of Madras dated 15.07.2011 to the Temple, wherein it is stated that the suit land do not contain title deeds and the Civil Court alone is entitled to declare the title. Ex.A-25 had been filed after remand from this Court, wherein the date of enquiry is shown as 07.12.1970 and the date of order is 12.06.1977 and no notice had been served on the defendants, who were in the possession of the property. The Settlement Tahsildar 27/88 http://www.judis.nic.in A.S.No.568 of 2019 had inserted the Survey Number 644/5 in the last para. The PW-1 the Executive Officer had admitted that no documentary evidence produced to prove Mandakapadi was done in the suit property and she had not filed patta in the name of the Temple. The plaintiff did not aware the date of let out of suit property to Mr.Vengoba Rao. She further stated the suit land had been given by British Government as Inam whereas Ex.A-25 state that there is no title deeds to the property. Ex.C-4 is created to show the property belongs to the Temple. Ex.C-4 clearly shows property belong to Padma Bai, second defendant, which was conveyed to the first defendant, who is in possession of the property. Ex.C-1 equal to Ex.A-22 had been created for the purpose of suit.
32. The plaintiff cannot claim right over the property in the absence of title deeds. The suit is barred by limitation and after remand the plaintiff had come up with new version as if the suit property had been given by British Government by way of Inam without any documentary proof. There is no landlord tenant relationship between the plaintiff and the defendant. The first defendant is the absolute owner of the suit property by way of purchasing the same from the second defendant and had been paid 28/88 http://www.judis.nic.in A.S.No.568 of 2019 the relevant tax till date. The suit property originally belonged to Mr.Srinivasa Rao who had executed a registered Will dated 16.10.1974 by which he had bequeathed the suit property along with the other properties in favour of his wife Smt.Padma Bai and his daughter the second defendant. Since the original documents pertaining to the year 1888 was lost he preferred Ex.B-14 complaint. After death of Mr.Srinivasa Rao, the patta had been issued in the name of Smt.Padma Bai vide Ex.B-21 proceedings. The plaintiff had failed to prove that the suit property was let out to Mr.Vengoba Rao for running a school by producing relevant documents. Suit property is a private property enjoyed by the defendants and their predecessor even before 1888. This Court had probated the Will, which was not challenged by the plaintiff. The Mandakapadi means the Temple car with urchava murthy will be made to halt before the respective house of the person, who paid the money and then it will be brought back to usual place. Merely because there are certain carvings the plaintiff cannot claim ownership over the suit property. The plaintiff has no cause of action and prayed to dismiss the suit.
33. Before considering the merits of the suit, it is just and essential to discuss in detail about the documentary evidence produced 29/88 http://www.judis.nic.in A.S.No.568 of 2019 by both parties. Ex.A-1 is the letter dated 20.06.1994 sent by Mylapore, Triplicane Tahsildar to the Executive Officer of the Temple stating that the plaintiff can get order from the court and then apply for transfer of patta. Ex.A-2 is the letter dated 06.06.1994 sent by plaintiff to the Tahsildar stating that a Mandapam was present in Survey No.646/5 (New Survey No.644/5). The patta for the Mandapam had been transferred to one Mr.Chandrasekar, whereas the property belonged to the Temple and requested to issue patta in the plaintiff’s name. Ex.A-3 is the letter dated 02.06.1994 sent by plaintiff to the Inspector of Police, D-4 Police Station stating that a stone Mandapam had been situated in Survey No.646/5 in which the abishegam were held. But on 02.06.1994 part of the Mandapam was demolished and requested to take proper action. Ex.A-4 is the receipt dated 02.06.1994 given by D-4 police in this regard. Ex.A-5 is the legal notice dated 26.11.1994 issued by the plaintiff to the defendants 1 and 2 stating that the property is a Mandapam in Survey No.644/5 belonged to the Temple and initially the Bramorchavam and Mandakapadi was carried by one Mr.Vengoba Rao and on request he was permitted to use the Mandapam for running the school. The said Mr.Vengoba Rao with an intention to create record had left out the Will and during 1990 the second defendant had transferred the patta in the 30/88 http://www.judis.nic.in A.S.No.568 of 2019 name of her mother and sold the property to the first defendant, who has demolished the part of the Mandapam. Hence, the plaintiff called for to pay damages.
34. Further Ex.A-6 is the letter dated 06.6.1994 written by plaintiff to the Tahsildar, which is the replica of the Ex.A-2. Exs.A-7 to A-11 are the photographs of the suit property and Exs.A-12 to A-16 are the negatives of the said photographs. The photographs shows certain carvings of several Hindu Gods in the wall of the said building. Ex.A-17 is the legal notice dated 18.09.1996, issued on behalf plaintiff to the first defendant, reiterating the above facts and called upon the first defendant not to lease out the property to the other persons. Ex.A-18 is the reply notice dated 25.09.1996, wherein the first defendant had stated that he did not do any act to restrain the plaintiff and encumber the property. Ex.A-19 is the Register No.9 pertaining to the plaintiff-Temple, wherein Survey No.646/5 to the extent of 0.0822 sq. feet had been shown as school and kalmandapam the name of the school was mentioned as A.C.Siva Rao Primary School and the year is shown as more than 10 years. Ex.A-20 is the proceedings of the Commissioner of Hindu Religious and Charitable Endowment Department dated 28.11.1994, wherein he had corrected the survey 31/88 http://www.judis.nic.in A.S.No.568 of 2019 Number in the registers as 644/5 instead of 646/5.
35. Ex.A-21 is the 7(a) particulars prepared by the Executive Officer of the plaintiff-Temple, wherein Survey No.644/5 to the extent of 0.0822 sq. feet is shown as kalmandapam. Further, it was stated in the memo that the suit property had been encroached by the defendants 1 and 2 against which the suit in O.S.4227 of 1994 had been filed and decreed in favour of Temple for which the plaintiff had filed application for recovery of possession against the encroacher.
36. Ex.A-22 is the copy of Permanent Land Register for the Mylapore-Triplicane Taluk, wherein Survey No.644/5 had been shown as Ryotwari land to the extent of of 0.50.0822 and according to the Adangal the owner is Thiruvatteeswaranpettai Koil present Dharmakartha and below the same the name of Smt.Padma Bai and the first defendant were mentioned. Two proceedings namely B2/T/95/8990 dated 06.04.1990 and B2/NA/1086/9293, dated 31.12.1992 had been mentioned.
37. Further, Ex.A-23 is the letter dated 12.10.2011 issued by the Executive Officer of the plaintiff-Temple to the Tahsildar to issue 32/88 http://www.judis.nic.in A.S.No.568 of 2019 patta for the suit property as according to the proceedings of Collector in Na.Ka.No.P2/21151, dated 15.07.2011 it was shown as Survey No.644/5 Thirukoil Mandapam. Ex.A-24 is the reply dated 11.11.2011 issued by the Tahsildar stating that the Permanent Land Register contains the detail of Survey No.644/5 in the name of Thiruvatteeswaranpettai Koil present Dharmakartha Mr.Chandrasekar. Ex.A-25 is the letter dated 15.07.2011 issued by the District Collector, Chennai to the Executive Officer of the plaintiff-Temple, wherein certain details were given and further stated that certain documents were not available and hence the documents could not be furnished. The enclosure is the proceedings of the Settlement Tahsildar dated 12.04.1973 and the date of enquiry is mentioned as 07.12.1970 and date of order is shown as 12.06.1977. The order state that the suit land did not have title deeds, which are Devadayam Inams, which were taken over by the Government under Section 3b of the Act. The enquiry were taken up by the said Tahsildar suo moto and the claimants appeared and stated that they were paying only quit rent to the plaintiff, some of them produced old certificate of Collector, Madras transferring the title for the site which relates to the period before 1900. A perusal of the old certificate revealed that the agreement entered between the Government and Devasathanam in 1934 and 33/88 http://www.judis.nic.in A.S.No.568 of 2019 1987 24 fanams per annum have to be paid to the church – Wardon of Devasathanam as quit rent. Further, it was stated that Survey No.644/5 is the Mandapam belonged to the Devasthanam and directed to issue Rayotwari patta under Section 13(1) to the Devasthanam.
38. Exs.A-26 and A-27 are the Encumbrance Certificates of the suit property for the period from 01.01.1960 to 25.08.2002, which shows no encumbrance were made during the said period. Ex.A-28 is the letter dated 24.01.2012 issued by Tahsildar to the plaintiff and stated that one of the record asked by the plaintiff had been destroyed and another record was not available in the record room. Ex.A-29 is the permission letter dated 03.01.2005 given by the Commissioner to the Executive Officer of the Temple to file and defend any proceedings on behalf of the Temple. Ex.A-30 is the letter dated 15.10.2014, wherein the Commissioner, Hindu Religious and Charitable Endowment Department had stated that the Smt.Anusha Devi, the Assistant, had been granted permission for deposing in O.S.No.345 of 1996.
39. Ex.B-1 is the Sale Deed dated 24.03.1992, executed by second defendant Smt.Uma Rani and 3 others in favour of the first defendant. The recitals of the deed revealed that the second 34/88 http://www.judis.nic.in A.S.No.568 of 2019 defendant’s father Mr.Srinivasa Rao was in possession of the property for a very long period. Further, Mr.Lakshman Rao the grand father of the first defendant’s father was put in possession in the year 1912 and ever since the first defendant’s grand father Mr.Vengoba Rao and after his demise the first defendant’s father Mr.Srinivasa Rao were enjoying the property and the said Mr.Srinivasa Rao executed a Will on 16.10.1974 and bequeathed his property to his wife Smt.Padma Bai, who is the first defendant’s mother. The said Will had been probated before this Court in O.P.No.208 of 1975 dated 23.10.1975. Then the said Smt.Padma Bai entered into a Sale Agreement with the first defendant towards the sale of the said property. The said Smt.Padma Bai executed a Will dated 18.04.1990 and the second defendant had been appointed as executrix in terms of the Will and the suit property is bequeathed to the second defendant till her life time and after her lifetime the second defendant was authorized to dispose the property accordingly. The second defendant along with her sons and daughters had sold the property to the first defendant for a sale consideration of Rs.3 lakhs. The schedule of property shows that the Resurvey number is 644 and in Annexure 1(a) the age of the building is shown as more than 75 years old.
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40. Further, Ex.B-2 is the patta issued by the Tahsildar, Triplicane Taluk in favour of first defendant, which revealed that the property in Survey No.646/5 had been allotted in the name of first defendant and the land contained a building. Ex.B-3 is the copy of the plaint in O.S.No.4227 of 1994. The recitals revealed that the plaintiff had filed the original suit against the defendants 1 and 2 for the relief of injunction from demolishing the Mandapam or portion of the suit property. The recitals further revealed that one Mr.Vengoba Rao had performed Mandakapadi for several years and he was permitted to run a school in the said premises. Due to the mismanagement of properties of the Temple by the Trustees, the Executive Officer was appointed in this regard and further stated that they have right to recover the property from the defendants, which is not extinguished in view of Section 109 of Act 12 of 1959.
41. Ex.B-4 is the property tax book issued by the Corporation of Chennai in the name of first defendant, the property tax demand card shows the name of Smt.Padma Bai, Mr.Srinivasa Rao as the then owners. Ex.B-5 is the letter dated 26.03.1963 sent by Corporation of Madras to Mr.Srinivasa Rao regarding the objection for assessment of premises. Ex.B-6 is the property tax receipt dated 36/88 http://www.judis.nic.in A.S.No.568 of 2019 13.08.1964 paid by Mr.Srinivasa Rao with respect to the suit property. Ex.B-7 is the land extract register copy in which the Survey No.646/5 in Pillaiyar Koil Street had been shown as A.C.Siva Rao Primary School to the extent of .0822 sq. feet and shown as school and kalmandapam. Ex.B-8 is the summons from the Rent Controller served on Mr.Srinivasa Rao in HRC.No.2863/1962 filed by him against the tenant. Ex.B-9 is the property tax receipt dated 17.9.1974 in the name of Mr.Srinivasa Rao in the suit property. Ex.B-10 is the receipt for quit rent in which it was stated that an amount of Rs.38.40 had been received on behalf of Mr.Srinivasa Rao. Ex.B-11 is the copy of Estate Duty Challan dated 05.08.1975, which revealed that Smt.Padma Bai had paid the estate duty on account of death of Mr.Srinivasa Rao for the said property. Ex.B-12 is the estate duty discharge certificate dated 22.03.1977, which revealed that the certificate mentioned property had been passed on the death of Mr.Srinivasa Rao to Smt.Padma Bai and the full estate duty had been paid.
42. Ex.B-13 is the receipt dated 01.08.1979 issued by Metro Water Board in favour of Mr.Srinivasa Rao. Ex.B-14 is the letter dated 09.08.1968 sent by Mr.Srinivasa Rao to the Commissioner of Police, Madras stating that he had lost the land deed in the name of 37/88 http://www.judis.nic.in A.S.No.568 of 2019 Mr.Lakshmana Rao for the year 1888 and also the construction cost details of the premises in the suit property and requested to do the needful. Ex.B-15 is the acknowledgment card for Ex.B-14. Ex.B-16 is the copy of the order in O.P.No.208 of 1975 in the matter of last Will and testament of Mr.Srinivasa Rao in favour of Smt.Padma Bai for the suit property and other properties. Ex.B-17 is the property tax intimation addressed to the first defendant stating that as per his request the name of the owner of the house in the suit property had been changed in the name of the first defendant.
43. Further, Ex.B-18 is the notice in RCOP No.2302 of 1984 issued to Smt.Padma Bai in the eviction petition filed by her against her tenant. Ex.B-19 is the rental agreement dated 04.02.1993 entered between first defendant and one Mr.Jayachandra Babu with respect to part of suit property. Ex.B-20 is the letter dated 08.09.1993 written by the second defendant in favour of the first defendant stating that as per the agreement, she had surrendered the shop in suit property to first defendant after receiving cash. Her husband Mr.Jayachandra Babu, who is the sole proprietor of the shop, after making agreement, was died and hence she had surrendered the shop. Ex.B-21 is the patta dated 11.11.1991 issued in the name of 38/88 http://www.judis.nic.in A.S.No.568 of 2019 Smt.Padma Bai for the suit property.
44. Ex.X-1 is the summon issued to the PW-4 for deposing in the original suit. Ex.C-1 is the true copy of Town Survey Field Register, which revealed that the Survey No.644/5 to the extent of 0.0822 sq. feet and as per the adangal, the name Smt.Padma Bai had been shown, which was subsequently deleted by the proceedings D4/TR/95/8990, dated 06.04.1990. The name Thiruvateeswaranpettai Koil present Dharmakartha and below that Mr.N.Chandrasekaran's name was mentioned in which except the said name the other letters were found to have been strike out by the proceedings B4/Tr/1086/9293, dated 31.12.1992. Ex.C-2 is the true copy of letter issued by the Tahsildar, Mylapore with regard to the land extract, which revealed that the proceedings pertaining to Tr1/95/8990 is pertaining to the land of one Smt.K.Lakshmi and Smt.Vedavalli.
45. Ex.C-3 is with regard to the proceedings of the Tahsildar, Mylapore-Triplicane Taluk with regard to transfer of Registry for R.S.No.644/5. The said document refers the application dated 2.12.1992 given by the first defendant for transfer of Registry. The first defendant had claimed that the property had been purchased by 39/88 http://www.judis.nic.in A.S.No.568 of 2019 Sale Deed from Smt.Umarani and others, vide registered Sale Deed. The registered holder is mentioned as Smt.Padma Bai and the Tahsildar had recommended transfer of Register accordingly. There is an endorsement that Mrs.Umarani is the only daughter of the registered holder Smt.Padma Bai. There was an endorsement on 03.12.1992 that “issue notice calling for objection if any to the proposed transfer”. Further there was an endorsement that on served by officer on 04.12.1992 objections not filed and it had been submitted for orders on 04.12.1992. But it is curious to see that the Tahsildar did not sign in the said proceedings and the said column was left blank without any signature.
46. Ex.C-4 is the Town Survey Resettlement Register corrected list of Thiruvateeswaranpettai, wherein it was mentioned as the minor Inam lands had been converted in Ryotwari and the Survey No.644/5 revealed that the patta stands in the name of Thiruvateeswaranpettai present Dharmakartha. Further, in Survey No.644/4 it was mentioned as Mr.Viswanatha Rao wife Smt.Tharabai. Further, the lands in Survey Nos.649/1 and 649/2, the patta stands in the name Thiruvateeswaranpettai Devasthanam. 40/88 http://www.judis.nic.in A.S.No.568 of 2019
47. With reference to issue Nos.1 to 4, the Trial Court elaborately considered all the four issues with reference to documents, evidences and all the four issues were taken up together for consideration.
48. Whereas according to the defendants, the suit property is the private property of the defendants. The plaintiff has to prove that the plaintiff is entitled for ownership of suit property even after 1951. Even before 1888, the land and the superstructure belongs to the second defendant’s predecessor Mr.Lakshmana Rao. The second defendant’s father Mr.Srinivasa Rao had already preferred Ex.B-14 complaint dated 09.08.1968 about the missing of original title documents of the year 1888 in the name of Mr.Lakshmana Rao for the suit property. The revenue document Exs.B-5, B-6, B-9, B-10 and B- 13 proved that the Corporation Tax Receipts had been issued in the name of father of the second defendant. Ex.B-12 revealed that estate duty was paid towards the property of the father of the second defendant. Further, the second defendant’s father namely Mr.Srinivasa Rao having inherited the suit property from his father and Mr.Srinivasa Rao had executed a registered Will dated 16.10.1974 and bequeathed the property and other properties in favour of his wife Smt.Padma Bai 41/88 http://www.judis.nic.in A.S.No.568 of 2019 and his daughter Mrs.Umarani, the second defendant. After the death of Mr.Srinivasa Rao, the Will had been probated and the patta has been changed in favour of Smt.Padma Bai vide Ex.B-21.
49. After the suit had been remanded for fresh trial, the plaintiff had filed Exs.A-19, A-20, A-22 in support of the claim of title of the plaintiff temple. As discussed earlier in Ex.A-19 Register, the Survey Number of the property had been mentioned as 646/5, which was subsequently corrected by Ex.A-20 proceedings of the Commissioner of Hindu Religious and Charitable Endowment. The said exhibit clearly reveals that the Survey Number mentioned as 646/5 for the property situated in Door No.11, Pillaiyar Koil Street, Triplicane, Chennai5 had been corrected as per revenue records as Survey No.644/5. The defendant had contended that the plaintiff had unilaterally corrected the Survey Number, which is illegal as the commissioner, Hindu Religious and Charitable Endowment is not the proper authority to correct the revenue records. As contended by the plaintiff, the plaintiff temple has to maintain a register with regard to the property under Section 29 of Hindu Religious and Charitable Endowment Act.
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50. Further the Commissioner, Hindu Religious and Charitable Endowment according to Section 23 of Hindu Religious and Charitable Endowment Act, has power to pass any orders which are necessary to ensure that the property are administered properly. Only by the said power, the Commissioner had passed Ex.A-20 order dated 28.11.1994 by stating that based on verification of revenue records the Survey Number had been corrected in their Register. Since the Commissioner is duty bound to protect the interest of the temple such order passed by the said Commissioner with regard to change the Survey Number in the Ex.A-20 Register is perfectly valid. Since the Commissioner had passed an order to rectify the mistake occurred in the Register maintained by the Temple, which is admittedly not a revenue record, the contention of the defendant that the Commissioner did not have right to correct revenue record is not valid. Hence, the act of filing of the suit initially by the plaintiff by mentioning the Survey Number as 646/5 cannot be found fault with.
51. There is no mistaken identity of property as alleged by the defendants as the plaintiff had clearly mentioned in the schedule of property as the Mandapam bearing No.11, Pilliar Koil Street, Triplicane, Chennai-5 in the O.S.No.4227 of 1994. Further, the plaintiff had filed 43/88 http://www.judis.nic.in A.S.No.568 of 2019 the suit only for the relief of injunction, wherein in para 7 of the plaint, the plaintiff had clearly stated that in view of Section 109 of Act XII of 1959, the plaintiff is entitled to recovery the property and hence the contention of defendants that the present suit filed without obtaining permission has to be dismissed is not valid according to law.
52. One of the important document relied on by the plaintiff to show the title of the plaintiff-Temple is Ex.A-25 letter along with the order of the settlement Tahsildar dated 12.04.1973. In the said order, it had been clearly mentioned that the suit land bearing Survey No.644/5 as well as other lands for which there is no title deed, which are Devadhayam Inam taken over by the Government and the Inam tenure was ceased to exist and the claim had to be made as according to the provisions of Act 30/63. Further, as per order of the Settlement Tahsildar, Survey No.644/5 is the Mandapam building belonging to the Devasthanam and accordingly directed to issue Ryotwari patta under section 13 (1) to the Devasthanam. The schedule attached thereto shows that survey No.644/5 belonged to Thiruvateeswaranpettai Temple by Trustee. This document throws much light on the contention of the plaintiff that the plaintiff-Temple is the owner of the property.
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53. When the order had clearly mentioned that the suit property belonged to the Devasthanam, merely because the name of the person had been mentioned as Thiruvateeswaranpettai Temple by Trustee for Survey No.644/5 and mentioning Thiruvateeswaran Devasthanam for Survey No.649/2 will not create any doubt or suspicion on the title of the plaintiff. The contention of the defendants is that the said order had been passed without serving notice to the second defendant or his predecessor who had been in possession of the property for more than 60 years i.e., prior to 1950. The contention of the defendants has to be considered in the light of documents produced by defendants to show their title as mere possession alone will not confirm any title for the defendants.
54. Further, Ex.A-22 is Permanent Land Register, wherein the name of Thiruvateeswaranpettai Koil present Dharmakartha had been mentioned and the name was rounded then the name of Smt.Padma Bai was mentioned which was also rounded off and the name of second defendant had been mentioned. This document is similar to Ex.C-1 Town Survey Field Register, in which Survey No.644/5, the adangal details revealed that one Smt.Padma Bai name 45/88 http://www.judis.nic.in A.S.No.568 of 2019 was mentioned, which was scored out and proceedings No.B2TR/95/8990, dated 06.04.90 had been mentioned. Further, the name of Smt.Padma Bai was strike off and the name of Thiruvateeswaranpettai Koil present Dharmarkartha had been mentioned, which was also strike off and the name of second defendant had been mentioned vide proceedings B4/TR/1086/9293, dated 31.12.1992. There was an initial found below the above said two proceedings. Now, it has to be found out who had made such corrections in the Town Survey Field Register and Permanent Land Register and by which proceedings and in what manner the correction had been made.
55. The plaintiff did not produce any direct evidence by examining any revenue officials to show the nature of corrections made. But the only contention of the plaintiff is that the corrections were made only by Smt.Padma Bai with the help of revenue officials and the proceedings mentioned in the Register itself is not pertaining to the land in Survey No.644/5. According to the contention of the plaintiff the proceedings based on which the name Thiruvateeswaranpettai present Dharmakartha had been changed in the name of Smt.Padma Bai does not relate to the suit property and it 46/88 http://www.judis.nic.in A.S.No.568 of 2019 is pertaining to the transfer file of one Smt.Lakshmi. During cross examination DW-1 would state that “@vf;rpgpl; rp1 Mtzg;go Kjypy; jpUtl;O!;tuh;ngl;il nfhtpy; jw;fhy jh;kfh;j;jh bgahpy; brhj;J ,Ue;Js;sJ/ mjw;F fPH; vd;/re;jpunrfud; vd;W vd; bgah; cs;sJ/ ehd; nfhapy; jh;kfh;j;jh my;y/ gj;khtjp bgahpy; ,Ue;j gl;lhit Kjypy; jpUtl;O!;tud;ngl;il nfhapy; jw;fhy jh;kfh;j;jh vd;gthpd; bgahpy; ehd; Mtzkhf jhf;fy; bra;Js;nsd;/ vf;rpgpl; v22 Mtzg;go jhth brhj;J cs;sJ/ mjd; bgahpy; gj;khtjpgha; vd;gtUf;F khw;wk; bra;ag;gl;Ls;sJ/ mt;thW khw;wk; bra;tjw;fhd eltof;if Fwpg;g[ vz;/gp/2-o/Mh;-95-8990. 6-4-90 njjpaplg;gl;Ls;sJ vd;why; rhpjhd;/ vf;rpgpl;/rp/2 Mf Fwpgg; plg;gl;Ls;s nkw;brhd;d ouhd;!;gh; igy; xU yl;Rkp vd;gtuhy; 6-4-90 njjpaplg;gl;Ls;sJ vd;why; rhpjhd;/ vf;rpgpl;/rp/2 Mf Fwpgg; plg;gl;Ls;s nkw;brhd;d ouhd;!;gh; igy; xU yl;Rkp vd;gtuhy; bgah; khw;wk; bra;tJ Fwpj;J tH’f; g;gl;l eltof;if vd;Wk;. me;j Fwpg;gpy; o/v!;/ek;gh; 2147 vd;W Fwpg;gplg;gl;Ls;sJ vd;Wk; brhd;dhy; rhpjhd;/ gj;khgha; bgahpypUe;J jhth brhj;J vd; bgaUf;F 1993 tUlk; bgah; khw;wg;gl;lJ mjDila eltof;if Fwpgg; [ vz;/gp/2-o/Mh;-1086-92=93. 31/12/92 njjpapl;lJ vd th/rh/M/22 Mtzj;jpy; Fwpg;gplg;gl;Ls;sJ vd;why; rhpjhd;/ me;j eltof;if Fwpj;j igy; rp/3 Mtzkhf FwpaPL bra;ag;gl;Ls;sJ vd;why; rhpjhd;/ //////// gj;khtjpgha; bgaUf;F gl;lh vt;thW ve;j eltof;ifapd; nghpy; khw;wg;gl;lJ vd;w tptuk; vdf;F bjhpahJ/ nfhtpy; epyj;ij mgfhpf;f ntz;Lk; vd;W gj;khtjpgha; capUld; ,Ue;j fhyj;jpnyna nkhroahf gj;khtjpgha; bgaUf;F gl;lh khw;wk; bra;ag;gl;ljhf Mtz’f; s; nghypahf Vw;gLj;jp cs;shh;fs; vd;why; jtW/ mt;thW bra;j khw;wk; thjp nfhapiy fl;LgLj;jhJ vd;why; rhpay;y/@” As according to the evidence of DW-1, it is clear that Ex.C-2, which mentioned about the proceedings are pertaining to the land of one 47/88 http://www.judis.nic.in A.S.No.568 of 2019 Mrs.Lakshmi and DW-1 himself had admitted that the said proceedings had been mentioned in Ex.A-22 as well as Ex.C-1 by mentioning that the patta had been transferred in the name of Smt.Padma Bai as per the above said proceedings. Hence, it is clear that the patta had been transferred in the name of Smt.Padma Bai by mentioning a false proceedings, which is admittedly pertaining to another land.
56. Now, it has to be considered about the next correction in Ex.A-22 from the name of Smt.Padma Bai to the name of Mr.Chandrasekar, who is the first defendant herein. According to the first defendant, the patta had been changed in his name by Ex.C-3 proceedings. As discussed earlier, Ex.C-3 proceedings had not even been signed by the Tahsildar, Mylapore-Triplicane Taluk and the said column had been left blank. As contended by the plaintiff, the entire document had been prepared in a hurried manner as the first defendant had given application dated 02.12.1992 for transfer of patta. According to the document, the registered holder is Smt.Padma Bai and the first defendant had purchased property under Sale Deed No.406/1992 from Smt.Umarani and others and without mentioning any other documents, it is stated that the document link is completed. Further, it is stated that Smt.Umarani is the only daughter of right 48/88 http://www.judis.nic.in A.S.No.568 of 2019 holder Smt.Padma Bai. Further, it is stated that the notice was served by the officer on 04.12.1992 and no objection had been received and on the same day orders has been passed. The above said proceedings would clearly reveal that the proceedings are taken up hurriedly without even sending any notice and had been prepared only for the benefit of the first defendant. Admittedly, the proceedings without proper notice and not duly signed by the Tahsildar is a nullity in the eyes of law.
57. Ex.A-5 Settlement Order clearly proved that the plaintiff-Temple is the owner of the suit property and according to Section 30 of Tamil Nadu Minor Inams (Abolishing and Conversion into Ryotwari) Act (XXX of 1963). The appeal against the order of the Settlement Tahsildar lies only with the Tribunal and Section 43 of the said Act revealed that the decision of any proceedings under the act shall be binding on the parties in any suit for proceeding in a Civil Court and according to section 46, any order passed by the Settlement Officer shall be subject only to any appeal or revision as provided under the law and no such order can be questioned in any Court of Law. Admittedly, the Settlement Tahsildar had issued the proceedings dated 12.04.1973 stating to issue patta in favour of the Devasthanam 49/88 http://www.judis.nic.in A.S.No.568 of 2019 for the suit property and the said documents is enclosed along with the letter Ex.A-25. The said order is not challenged by the defendants as per the procedure and now the proceedings cannot be questioned as per the act. Further, it is not the case of the defendants that the defendants are the Trustees of the plaintiff temple. All the revenue documents would clearly reveal that the plaintiff is the owner of the suit property and the name of Smt.Padma Bai had been included in the patta without any valid proceedings.
58. Now, the contention of the defendants that the suit property is a private property has to be considered. It is well settled principle that the plaintiff has to prove their case and the defendants having claimed title over the suit property is equally duty bound to produce relevant records in this regard. Admittedly, there is no title deed produced by the defendants to claim title over the suit property. The only record produced by the defendants to show that the second defendant’s predecessor has got title in the suit property is Ex.B-14, which is the letter dated 09.08.1968 sent by Mr.Srinivasa Rao to the Police Commissioner with regard to missing of original documents of title for the suit property of the year 1888 in the name of Mr.Lakshmana Rao. But the defendants did not specify what are all the 50/88 http://www.judis.nic.in A.S.No.568 of 2019 original documents of title pertaining to the year 1888 in the name of Mr.Lakshmana Rao, where the defendants apart from sending the complaint by post had taken any other steps to get either the original or the certified copy of the said documents. In absence of the original documents pertaining to title, the contention of the plaintiff that if the original document as alleged by the defendants is available, the defendants could have obtained certified copy from the Registrar Office and could have filed the same is found to be acceptable. There is no pleadings or evidence about the Genealogy of the second defendant.
59. Likewise, there is no evidence to show that the property had been transferred from which person to Mr.Srinivasa Rao and no patta in the name of the said Mr.Srinivasa Rao had been filed. After remand from this Court, the defendants had examined one Mr.R.S.Murali, who is the 4th defendant as well as son of deceased defendants 2 and 3. In the proof affidavit filed in the chief examination, the said witness did not narrate the details of his predecessor and had simply stated that the suit property belonged to his grand father Mr.Srinivasa Rao, which he had inherited from his father. Only by way of Will, the property had been bequeathed and subsequently the Will was probated. During cross examination DW-2 51/88 http://www.judis.nic.in A.S.No.568 of 2019 would state that “@gj;khgha; brhj;jpd; chpikahsh;/ mth; ,we;J tpl;ljhy; mtuJ thhpR vd;w Kiwapy; vd; mk;kh ckhuhzpf;F brhj;J te;jJ/ vd; jhj;jh rPdpthr uht; vGjp itj;j capiy gpungl; bra;j gpd;g[ jhth brhj;J vd; ghl;of;F te;jJ/ vd; jhj;jh rPdpthr uhtpw;F brhj;J vg;go te;jJ vd;why; bjhpahJ/ rhl;rp gpd;dpl;L vd; jhj;jhtpw;F mtuJ mg;gh K:ykhf brhj;J te;jjhf nfs;tpgl;Ls;nsd; vd;W brhy;fpwhh;/ vd; jhj;jhtpw;F jhth brhj;J ve;j Mtzj;jpd; mog;gilapy; te;jJ vd;W bjhpahJ/ jhth brhj;J Fwpj;J mry; Mtz’f; s; vija[k; ehd; ghh;ff; tpy;iy/ ////////////// gp/rh/M/21 gl;lh capy;
; vd; ghl;o bgahpy; th’f; g;gl;lJ vd;why;
gpngl; bra;ag;gl;lij fhz;gpjJ capiy bghWj;j kl;oy; my;y vd; jhj;jhtpd; bgahpy; fhh;gg; nu&d; urPJfs; ,Ue;jJ/”
60. Further, DW-1, who is the 1st defendant and, had purchased the property from the legal heirs of Smt.Padma Bai had deposed that “@gp/th/rh/M/1 fpua Mtzj;jpy; rPdpthr uht; kw;Wk; bt’n; fhg uht; MfpnahUf;F vg;go brhj;J te;jJ vd;gJ Fwpj;j tptuk; ,y;iy vd;why; rhpjhd;/ gp/th/rh/M/1 gf;fk; 3y; jhth brhj;J rPdpthr uht;. bt’n; fhg uht; Mfpnahh; RthjPdj;jpy; kl;Lk; ,Ue;jjhf Fwpg;gplg;gl;Ls;sJ vd;why; rhpjhd;/ ////////// gp/th/rh/M/1 fpua Mtzj;jpy; brhj;J rh;nt vz;/644 vd;W kl;Lk; Fwpg;gplg;gl;Ls;sJ/ 644-5 vd Fwpg;gpltpy;iy/ /////////// ehd; jhf;fy; bra;j gpukhz gj;jpuj;jpy; gf;fk; 5y; Fwpgg; pl;l 1888 tUlj;jpa Mtzj;ij ghh;itapl;Ls;nsdh vd;why;. Mtzj;ij ghh;f;ftpy;iy. me;j Mtzk; ahuhy;. ahUf;F vGjp bfhLf;fg;gl;lJ vd;Wk; mjd; brhj;J tptuk; vd;dbtd;Wk; vdf;F bjhpahJ/ jhth nfhtpypy; ,Ue;J brhj;ij ahUk; tpw;ftpy;iy vd;why; vdf;F bjhpahJ/ rPdpthr uht; vd;gtUf;F jhth brhj;J vg;go fpilj;jJ vd;why; vdf;F bjhpahJ/ mJ nghy rPdpthr 52/88 http://www.judis.nic.in A.S.No.568 of 2019 uhtpd; jfg;gdhh; bt’;nfhg uhtpwF ; jhth brhj;J vg;go fpilj;jJ vd;W vdf;F bjhpahJ/ rpth$p uht; vd;gtUf;F jhth brhj;J vg;go fpilj;jJ vd;Wk;. vd;d gj;jpuk; K:yk; th’f; pdhh; vd;Wk; bjhpahJ/@” Thus, the evidence of the defendants clearly reveals that the predecessor of second defendant did not have any title deeds in support of their claim of suit property.
61. Further, the property had been subsequently purchased by the first defendant by Ex.B-1 Sale Deed. On perusal of Ex.B-1 Sale Deed, it revealed that the property was in possession of Mr.Lakshmana Rao then to Mr.Vengoba Rao and then to Mr.Srinivasa Rao, who is the father of the second defendant and the said Srinivasa Rao executed a Will in favour of his wife Smt.Padma Bai, which was later probated in O.P.No.208 of 1975 and based on which the second defendant and others sold the suit property in favour of the first defendant. As according to the recitals of the Sale Deed, no title deed pertaining to suit property in favour of the said predecessor were available. In this juncture, the contention of the defendants that the said Mr.Srinivasa Rao had preferred complaint about the loss of original documents pertaining to the year 1888, cannot be believed at all. If at all those documents are available, the same would have find a place in the 53/88 http://www.judis.nic.in A.S.No.568 of 2019 recitals of the Sale Deed executed in favour of the first defendant.
62. Another important contention of the defendants is that the Will executed by the said second defendants father Mr.Srinivasa Rao had been probated by this Court Ex.B-16 is a judgment in Rem and had binding effect over the plaintiff also. As per the observations of the Hon'ble Supreme Court in the case of Basanti Devi vs. Ravi Prakash Ram Prasad Jaiswal [(2008) 1 SCC 267], the grant of probate is a judgment in Rem and binds not only the parties and to the entire world. There is no dispute about the fact that the order of probate is a judgment in Rem and binding all the parties. Now, the issue to be determined is whether the decision of probate proceedings is binding on the plaintiff or not with regard to the claim of title.
63. The Hon'ble Supreme Court of India in the case of Hem Nolini Judah vs. Isolyne Sarojbashini Bose [AIR 1962 SC 1471] had observed in para 8 that “…… As we have already said question of title are not decided in proceedings for the grant of probate or letters of administration.
Whatever therefore might have happened in those proceedings would not establish the title 54/88 http://www.judis.nic.in A.S.No.568 of 2019 to the house either of the appellant or of Mrs.Mitter.”
64. This Court in the case of P.R. Hemachandra Babu and another vs. P.R. Janardhanam (deceased) and five others [2003 (2) MLJ 475] had observed that “It is clear from Section 16 of the Hindu Succession Act that the Court should not consider question of title or disposing power of the property. The grant of probate to the executor does not confer upon him any title to the property. Now, the appellants mainly claimed right, title and interest in the property based upon the probated by a Court and the consent affidavits given by the other legal heirs. Probate is only conclusive as to the appointment of executors the validity of execution and contents of the Will. In an application for probate, it is not in the province of the Court to go into questions of title with reference to the property of which the Will purports to dispose, or the validity of such disposition. Moreover, a Court cannot refuse to grant probate of a will because the testator had power to dispose of some or even all of the property he purported to deal with. The grant 55/88 http://www.judis.nic.in A.S.No.568 of 2019 of probate is decisive only of the genuineness of Will propounded and of the right of the executors thereby appointed to represent the estate of the testator. It is in no respect decides question as to the disposing power of the testator or as to the existence of any disposable” As per the above mentioned observations, it is clear that the probate of the Will is only with regard to the validity of the execution and contents of the Will and the grant of Will is decisive only with regard to the genuineness of the Will and question of title are not decided in the probate proceedings. Hence, the grant of probate order alone will not establish the title of either Mr.Srinivasa Rao or of Smt.Padma Bai. Hence, the contention of the defendants that the probated Will shows that the suit property belongs to the family of the second defendant is not valid and liable to be rejected.
65. As per the evidence of DW-1, he had purchased the property only based upon the Will. Hence, it is clear that neither the second defendant nor her predecessors have valid right over the suit property. As contended by the plaintiff, the said Mr.Srinivasa Rao had prepared complaint Ex.B-14 stating that the original title deeds of the 56/88 http://www.judis.nic.in A.S.No.568 of 2019 year 1888 were found missing and no such document detail were mentioned in Ex.B-1 Sale Deed. Further, in the Ex.B-1 Sale Deed, it was stated that Mr.Lakshman Rao, the grand father of Mr.Srinivasa Rao, was put in possession in the year 1912, which are contradictory to each other. The said Will was probated in the year 1975 and no steps had been taken to obtain patta in the name of Smt.Padma Bai immediately after the Will was probated. Whereas the said patta was obtained on 06.04.1990 based on the probate of Will. The said Will copy had not been produced for perusal. Based on the probate order the patta had been changed in the name of Smt.Padma Bai and subsequently, the property was purchased by the first defendant from the legal heirs. Based upon the above said records and evidence produced by both parties, it is clear that the first defendant had subsequently purchased property without any valid documents regarding title of suit property. Whereas the plaintiff by producing relevant documents had clearly shown that the property belonged to temple. Hence, this court is of considered view that the plaintiff had proved that the suit property belonged to the plaintiff-Temple.
66. The defendant had contended that the suit is not maintainable as Section 109 of Hindu Religious and Charitable 57/88 http://www.judis.nic.in A.S.No.568 of 2019 Endowment Act, it was subsequently amended. Since the suit was filed in the year 1996, the plaintiff had to prove his possession and ownership as on 13.09.1951 or otherwise Section 109 is not applicable. According to Section 109 of Hindu Religious and Charitable Endowment Act, which was amended under Act 28 of 2003 that the provisions of Limitation Act 1963 shall not be applicable to any suit for possession of immovable property belonging to any Religious Institutions. Both the parties had admitted that the amendment was made during the pendency of the suit. Now, it has to be considered whether the amended act applies to the pending proceedings.
67. This Court in the case of Arulmigu Kolavizhi Amman Temple, G.N. Chetty Street, Mylapore-4. rep. by the Executive Officer, Arulmigu Kapaleeswarar Temple, Mylapore, Madras-4 vs. R. Shamugham (died) & 48 others [2008 (3) MLJ page 732], wherein in paragraphs 39 and 40, this Court observed as under:-
“39. As per the original provision under Section 109 of the H.R. & C.E. Act, 1959, a party cannot set up a plea s against the religious institution on the ground of prescription and adverse possession when the properties had vested in him after 30.9.1951.58/88
http://www.judis.nic.in A.S.No.568 of 2019 If the property had vested in such a person or his predecessor before the 30.9.1951, the person vested with the property of any religious institution can validly set up a plea of prescription and adverse possession. But, as per the newly substituted provision under Section 109 of the H.R. & C.E. Act through the Tamil Nadu Act 28 of 2003 which came into effect on 1.9.2003, the entire provisions of the Limitation Act, 1963 shall not apply to any suit for possession of immovable property belonging to any religious institution.
40. The intention of the legislature of substitution of Section 109 of the Act is to protect the property of the religious institutions from being lost by adverse possession on account of the limitation prescribed under the Limitation Act, 1963. Let us visualize a situation where the Plaintiff temple withdrew this suit and laid a fresh suit after the year 2003. Can the defendants still contend that the suit laid for recovery of possession by the plaintiff temple is barred by limitation in face of the substitution of Section 109 of the H.R. & C.E. Act. The defendants cannot definitely set up such a plea. Denying the plaintiff temple to take advantage of the benevolent substitution 59/88 http://www.judis.nic.in A.S.No.568 of 2019 of Section 109 of the H.R. & C.E. Act will multiply the civil proceedings between the parties. Therefore, the Court finds that even for the pending suits, the provision under the substituted Section 109 of the H.R. & C.E. Act will apply. Such being the case, the Court finds that the suit is not barred by limitation for the religious institutions to lay a suit for possession of immovable property belonging to it.”
68. This Court in the case of R. Mohanasundaram vs. Arulmigu Kolavizhi Amman Temple [2012 (2) MLJ 321], wherein in paragraphs 70 and 71, observed as under:-
“70. Contention of appellants is that Section 109 is not retrospective and while so the learned single Judge erred in saying that the provision under substituted Section 109 of H.R. & C.E. Act will apply even for pending suits.
71. We fully concur with the view taken by the learned single judge that the substituted Section 109 of H.R. & C.E. Act will apply even for the pending suits.” The above mentioned observations would clearly reveal that the purpose for which Section 109 was enacted is to safeguard the 60/88 http://www.judis.nic.in A.S.No.568 of 2019 property of Religious Institutions from being acquired by others and hence the Amended Act is applicable to the pending suit also. Hence, the contention of defendants that only in case of landlord and tenants Section 109 will apply cannot be accepted in view of the fact that Section 109 is only with regard to recovery of possession or any interest in the property owned by the Temple and the tenant and landlord relationship is not necessary. As per the above mentioned discussions, this Court is of considered view that the suit is not barred by limitation as claimed by the defendants.
69. The defendants had further raised a contention that the suit had been filed only for the relief of recovery of possession without claiming the relief of title is not valid. In this suit, the defendants had claimed that the suit property is a private property and a cloud has been passed on the title of the suit property. The plaintiff had produced the citation reported in 2012 (2) MLJ 321 (cited supra), wherein this Court observed as under:-
“As discussed earlier, the title of the plaintiff temple has been reiterated in revenue documents and various earlier proceedings. Only when a cloud is cast on the title, there is a need to file the suit for declaration. A cloud 61/88 http://www.judis.nic.in A.S.No.568 of 2019 upon title is an apparent defect in it. Anything of the kind, which has a tendency to cast doubt about title and to stand in the way of full of free exercise of ownership, would amount to a cloud upon the title. In number of documents filed by it, they could only before and on behalf of the temple. Under no stretch of imagination, who came into the temple possession of properties of the temple as Archakas to perform poojas, can cast a cloud upon the plaintiff temple’s right and title. When the right and title of the plaintiff temple has been reiterated in various revenue documents and upheld in various proceedings, there was no necessity for the plaintiff temple to seek for declaration of title and this point is answered accordingly.” But the defendants counsel in their additional written submission had stated the above mentioned observation had been made wherein the appellant is the archaga of the Temple and in this suit the defendants are strangers to the plaintiff. The above said contention of the defendants is liable to be rejected as the court had already decided that the plaintiff-Temple had proved that they are the owner of the suit property and the claim of the defendants based on the probated Will is not valid. Since the plaintiff had produced relevant revenue and other 62/88 http://www.judis.nic.in A.S.No.568 of 2019 records to show their ownership, the patta obtained in favour of Smt.Padma Bai without valid documents and property tax receipt in favour of the second defendant alone will not create a cloud over the title of the plaintiff. Hence, the above mentioned observations of the Honourable High Court is clearly applicable to the facts and circumstances of the case and the plaintiff’s claim of recovery of possession without claim of title is perfectly valid.
70. Further, with regard to the adverse possession claim of defendants, it is well settled principle that mere possession alone will not be sufficient even though it is for a long time. Before claiming adverse possession, the party has to accept the title and ownership of other persons. But, it is not the case of the defendants that the property is owned by the plaintiff and hence the question of adverse possession does not even arise.
71. To prove the karungal Mandapam in the suit property the plaintiff had produced Exs.A-7 to A-11 photographs which clearly shows the stone carvings. The cross examination of DW-1 as under:-
@jhth brhj;J cs;s gps;isahh; nfhapy; bjUtpy; vdf;F bjhpe;j ntW fU’;fy; fl;ol’f; s; ,y;iy/ thjp nfhapiy Rw;wp 9 fU’;fy; kz;lg’;fs;63/88
http://www.judis.nic.in A.S.No.568 of 2019 cs;s tptuk; bjhpak[ h vd;why; bjhpahgJ/ th/rh/M/7 Kjy; 16 tiu cs;s g[ifg;gl’;fspy; cs;s vy;yh fU’;fy; J}z;fspYk; flt[s; totj;ij brJf;fpa[s;shh;fs; vd;why; rhpjhd;/@ Further the plaintiff had produced Ex.A-25 order of Settlement Tahsildar wherein it is clearly revealed that Survey No.644/5 is a Mandapam. Further, in Ex.A-21 Register item Nos.26 and 29 are shown as Mandapam. Now, it has to be seen whether the plaintiff had produced any evidence to show that the suit property was let out to one Mr.Vengoba Rao for running a school. In Ex.A-19, which was subsequently corrected the Survey Number as 644/5 revealed that there was a school namely A.C.Siva Rao Elementary school and there was a school and stone Mandapam present in the suit property.
72. According to the plaintiff, the Mandakapadi was carried on by Mr.Venkoba Rao, who was permitted to run an Elementary school in Mandapam with condition which was denied by the defendants. During cross examination, DW-1 would state as under:-
@rPdpthr uht; jhth ,lj;ij gs;sp Tlj;jpw;F thliff;F tpl;lhuh vd vdf;F bjhpahJ/ _fhe;j vd;gth; ckhuhzpapd; fzth;/ mth; ,e;j jhthtpy; Kd;g[ gp/th/rh/2 Mf vdJ jug;gpy; rhl;rpak; mspj;Js;shh; vd;why; rhpjhd;/ mtuJ rhl;rpaj;jpy; jhth fl;olk; 80 Mz;Lfs; gHik tha;ej; J vd;W brhy;ypa[s;shuh vd;why; (nkw;go nf;stpff; hd gjpiy gjpt[ bra;a gpujpthjp tHf;fwp”h; gp/th/rh/2 jw;nghJ capUld; ,y;iybad;Wk; mth; ePjpd;wj;jpy; brhd;d jfty; gw;wp rhl;rpaplk; nfs;tp 64/88 http://www.judis.nic.in A.S.No.568 of 2019 nfl;f KoahJ vd;W Ml;nrgiz bra;ag;gl;L Ml;nrgizf;F cl;gl;L nfs;tp gjpy; gjpt[ bra;ag;gLfpwJ/) rhpjhd;/ gp/th/rh/2 jdJ rhl;rpaj;jpy; jdJ mg;gh jhth ,lj;ij !;Tyf;F thliff;F tpl;oUe;jhh; vd;W brhy;ypa[s;shuh vd;why; brhy;ypa[s;shh;/ (nkw;brhd;d nfs;tp gjpYk; gpujpthjp jug;gpd; tHf;fwp”hpd; nkw;brhd;d Ml;nrgizf;F cl;gl;L gjpt[ bra;ag;gLfpwJ/)@ Thus, the DW-1 had admitted that one Mr.Srikanth, who is the husband of second defendant had deposed as DW-2 before remand of the case and on his evidence, he had admitted that his father had leased the property for running a School. Admittedly, the evidence of said Srikanth is found in the records and merely because the said person was subsequently died his evidence need not be rejected.
Further, the DW-1 also had admitted about the said evidence. When the DW-1 had admitted about the evidence of running of a school in the suit property, this Court is of considered view that admission is the best evidence and the plaintiff had thereby proved that the suit property was given to Mr.Vengoka Rao for running a school.
73. Another contention put forth by the defendants is that if at all the suit property is leased out to Mr.Vengoka Rao for running a school there might be documents like lease deed or any other documents to show the tenancy and no such documents had been produced by the plaintiff to show when and for what purpose the suit 65/88 http://www.judis.nic.in A.S.No.568 of 2019 property was handed to the said Mr.Vengoba Rao. But the recitals of plaint revealed that the Temple was originally under the control of Trustees at the time of permitting the said Mr.Vengoba Rao to use the property, the Temple was under the control and supervision the then Trustees and subsequently the temple was brought under Hindu Religious and Charitable Endowment and in view of certain mismanagement of property of the Devasthanam by the Trustees, the Executive Officer was appointed by the Hindu Religious & Charitable Endowment. The said averments were not denied by the defendants. When the Trustees were stated to be mismanaged the property of the Temple one cannot expect that the Trustees would execute a deed for the suit property and there cannot be any evidence for leasing out the property to the said Mr.Vengoba Rao. Hence, the non filing of relevant documents to show the actual date of handing over of possession of suit property to Mr.Vengoba Rao will not in any way affect the claim of the plaintiff with regard to the title of suit property.
74. The Hon'ble Supreme Court of India in the case of Angile Insulations vs. Davy Ashmore India Ltd and Another [1996 (1) LW 231 (SC)], held as under:-
“It should not be forgotten that an idol 66/88 http://www.judis.nic.in A.S.No.568 of 2019 is in the position of a minor. It has been held in Bishwanath Vs. Radha Ballabji (AIR 1967 S.C. 1044) that an idol is in the position of a minor and when the person representing it leaves it in lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest.
The Principle would certainly apply in a case where the person in management of a temple has not been as diligent as is necessary in conducting litigation on behalf of the temple.
The court can take notice of the fat that Executive Officer who is put in charge of the temple are changed periodically and in many a case, they do not get fully acquainted with the history of affairs of the temple. If there is some slackness on the part of the Executive officer or even that the idol does not suffer thereby courts should be astute to protect the interest of an idol in any litigation.” As per the above mentioned observation, the Trial Court is of considered view that the suit property is the absolute property of the plaintiff’s temple. Hence, the plaintiff is entitled for the relief of recovery of possession of the suit property from the defendants without claiming the relief of declaration of title. Further, the extract of Ex.A-22/Ex.C-1 Town Survey Field Register had been corrected 67/88 http://www.judis.nic.in A.S.No.568 of 2019 fraudulently by stating a proceedings not relating to the suit property only to suit the needs of first defendant and his predecessor in title. Further, the suit claim is barred by limitation in view of Section 109 of Hindu Religious and Charitable Endowment Act as amended by Tamil Nadu Act 28 of 2003. The issue Nos.1 to 4 are decided accordingly.
75. According to the plaintiff, the first defendant had attempted to demolish the Mandapam for which Ex.A-3 complaint was given and after that the first defendant again demolished the roof of Mandapam at one corner and had removed the stones with carvings and thereby damaged the plaintiff property and prayed to pay a sum of Rs.5,000/- towards the said value. In this regard, DW-1 had deposed as @ehd; Kjypy; Kjy; khoapy; cs;s fU’f; y; nghh;&id ghjp cilf;Fk; nghJ tHf;F nghl;lhh;fs; vd;Wk; mjpy; jil cj;jut[ bgwg;gl;lJ vd;Wk; brhd;dhy; rhpjhd;/ me;j jil cj;jut[ epYitapy; ,Uf;Fk; nghJ fU’f; y; J}zpy; ,Ue;j rpiyfs; kPJ rpbkz;l; nghl;L K:o tpl;nld; vd;why; jtW/ ,e;j nky; KiwaPl;L tHf;F epYitapy; ,Uf;Fk; nghJ fl;olj;ij ,oj;J tpln; ld; vd;why; fl;loj;ij ,of;Fk; nghJ jhd; nky; KiwaPL jhf;fy; bra;jhh;fs;/ me;j nky; KiwaPL epYitapy; ,Uf;Fk; nghJ ehd; fl;olj;ij KGtJk; ,oj;J tpln; ld; vd;why; rhpjhd;/ gpd;g[ rhl;rp me;j nky; KiwaPL epYitapy; ,Uf;Fk; nghJ ,of;ftpy;iy. fPH; ePjpkd;wj;jpy; tHf;F jPhg; ;ghiz btspahfp mg;gPy; nghLtjw;F Kd;g[ ,oj;J tpl;nld;/ KGikahf ,oj;J 68/88 http://www.judis.nic.in A.S.No.568 of 2019 Kof;ftpy;iy/ mg;nghJ mg;gPy; nghl;lhh;fs; vd;W TWfpwhh;/ mg;gPy; kDtpy; jil bgw;whh;fsh vd;why; jw;nghJs;s epyikna bjhlu ntz;Lk; vd;W cj;jut[ nghl;lhh;fs;/ Kf;fhy; thrp ,oj;jpUe;j nghJ ! n; ll;l!; nfh bfhLj;jhh;fs;. mjd; gpwF bkhj;jKk; ,oj;J tpln; ld;/@
76. The evidence of DW-1 shows that the defendants had demolished the portion of roof of Mandapam at one corner and during the proceedings of the appeal had demolished the entire structure and hence this court is of considered view that the plaintiff is entitled for the relief of payment of Rs.5,000/- for the value of the portion of the Mandapam as claimed. It is already decided that the plaintiff temple is the owner of the suit property and the defendants and their predecessors had enjoyed the suit property without any right and without payment of any rent to the plaintiff till date. Hence, the defendants are liable to pay a sum of Rs.3,000/- per month towards the wrongful use and occupation. Considering that the suit property is situated in the busy area of Triplicane the fixing of Rs.3,000/- per month is nominal and not excessive. The issue Nos.5 and 6 are decided accordingly.
77. With reference to Issue Nos.7 and 8, the Trial Court 69/88 http://www.judis.nic.in A.S.No.568 of 2019 arrived a conclusion that the plaintiff-Temple is the absolute owner of the suit property and the second defendant and their predecessors had enjoyed the property without any right and the second defendant had sold the property to the first defendant. In order to protect the right and interest of the plaintiff-Temple, the injunction has to be granted thereby restraining the defendants from encumbering the suit property in any manner. Accordingly, the Trial Court granted the permanent injunction in favour of the plaintiff-Temple and the defendants are restrained by way of injunction by alienating or encumbering the suit property. Further, the Trial Court granted cost of the suit. Accordingly, the suit was decreed with costs as prayed for. The defendants are directed to quit and deliver vacant possession of the suit property to the plaintiff-Temple, to pay a sum of Rs.5,000/- towards the value of the Mandapam demolished by the first defendant and to pay the mesne profit for wrongful use and occupation of the suit property, a sum of Rs.3,000/- per month to the plaintiff from the date of plaint till the date of delivery of vacant possession of the suit property. Time for delivery of vacant possession and time for payment are four months. Further, the plaintiff is entitled for permanent injunction restraining the defendants in encumbering or alienating the suit property. 70/88 http://www.judis.nic.in A.S.No.568 of 2019
78. Perusal of the entire judgment of the Trial Court, importantly, the Trial Court made a finding that the suit property belongs to the plaintiff-Temple. As per Ex.A-22, the alleged patta in the name of Smt.Padma Bai had been destroyed and the transfer proceedings in the name of the second defendant is not available. The Trial Court found that the said Smt.Padma Bai managed to get the transfer entry made in the TSLR. Ex.B-1 Sale Deed in the name of the first defendant executed by the second defendant is not valid as the Will executed by Smt.Padmavathy Bai had not been probated.
79. This apart, though the Will executed by in favour of Smt.Padmavathy Bai had been probated on 23.10.1975, Padmavathy Bai apply for the patta only in the year 1990. The reasons for the delay of 15 long years are unexplained. This apart, there is no Collector’s Certificate to prove the title and possession of Mr.Lakshmana Rao prior to 1947. DWs-1 and 2 did not have personal knowledge about Ex.B- 14.
80. With reference to Ex.C-3 proceedings of the Tahsildar, Mylapore-Triplicane Taluk with regard to transfer of Registry for R.S.No.644/5. The said document refers the application dated 71/88 http://www.judis.nic.in A.S.No.568 of 2019 02.12.1992 given by the first defendant for transfer of Registry. The first defendant had claimed that the property had been purchased by a Sale Deed from Smt.Umarani and others, vide registered Sale Deed. The registered holder is mentioned as Smt.Padma Bai and the Tahsildar had recommended transfer of Register accordingly. There is an endorsement that Smt.Umarani is the only daughter of the registered holder Smt.Padma Bai. There was an endorsement on 03.12.1992 that “issue notice calling for objection if any to the proposed transfer”. There was an endorsement that on served by Officer on 04.12.1992, objections not filed and it had been submitted for orders on 04.12.1992. But it is curious to see that the Tahsildar did not sign in the said proceedings and the said column was left blank without any signature.
81. The learned counsel for the appellants mainly contended and reiterated that long possession of the appellants were not considered in the right perspective by the Trial Court.
82. Relying on the judgment of the Hon'ble Supreme Court in the case of Basanti Devi vs. Ravi Prakash Ram Prasad Jaiswal [(2008) 1 SCC 267], the learned counsel for the appellants 72/88 http://www.judis.nic.in A.S.No.568 of 2019 reiterated that “Grant of Probate, being a Judgment in Rem, a person, who is aggrieved thereby and who had no knowledge about the proceedings and proper citations were not been made, is entitled to file an application for revocation of Probate on such grounds as may be available to him”.
83. Relying on the abovesaid judgment of the Hon'ble Supreme Court of India, the learned counsel for the appellants contended that no such application on revocation of probate was filed by the plaintiff-Temple. In the absence of filing any such application for revocation of probate, the defendants became absolute owner of the property and that being in possession for very long years, the plaintiff- Temple, without establishing the title, cannot get the benefit of the relief of possession and other reliefs.
84. It is contended that a decision rendered by a Competent Court cannot be challenged in collateral proceedings for the reason that if it is permitted to do so there would be confusion and chaos and the finality of proceedings would cease to have any meaning. The abovesaid proposition was laid down by the Apex Court in the case of Union of India and Others vs. Major S.P. Sharma 73/88 http://www.judis.nic.in A.S.No.568 of 2019 and Others [(2014) 6 SCC 351].
85. The learned counsel for the appellants contended that the Trial Court failed to follow the judgment of this Court in the case of M.B.Subramaniam vs. A.Ramasamy Gounder and others [(2009) 5 LW 883], wherein this Court observed that “It is a common or garden principle of law that when there is a serious title dispute to the knowledge of the parties, they, while filing a suit for certain relief, should necessarily pray for declaration of the title”. In the present case, the plaintiff-Temple has not prayed for the relief of declaration of title. In the absence of establishing the title to the suit mentioned property, the plaintiff is not entitled for the relief of possession and thus, the Trial Court has committed an error in granting the relief.
86. As per the decision of the Hon'ble Supreme Court, the plaintiff could succeed only on the strength of its own title and not on the signatures of the signatures of the defendants. Citing all these judgments, the learned counsel for the appellants mainly contended that the doubt regarding the title of the defendants are a cloud in this aspect would not be a ground to grant the relief in favour of the 74/88 http://www.judis.nic.in A.S.No.568 of 2019 plaintiff. Whenever there is a cloud in respect of title, then the plaintiff should pray for the declaration of title and admittedly, in the present case, no such declaration is sought for and therefore, the Trial Court has committed an error in granting the relief of possession and other reliefs.
87. The contentions of the learned counsel for the appellants are mainly on the ground that once the Will was probated, the same became a judgment in rem and therefore it binds all the parties not only before the Court but also binds all other persons in all proceedings arising out of the Will or claims under or connected therewith. In the present case, the respondent-Temple has not filed any application for revocation of probate and in the absence of any such revocation, the probate stands against the respondent-Temple and therefore, the Temple cannot claim any title over the suit property.
88. The second ground raised mainly is that the respondent-Temple has not prayed for the relief of declaration of title and whenever there is a cloud cast upon the title, then it is mandatory that the respondent-Temple ought to have sought for the relief of 75/88 http://www.judis.nic.in A.S.No.568 of 2019 declaration of title. In view of the fact that the probate granted in favour of the appellant remains unchallenged and the respondent- Temple has not prayed for the relief of declaration of title, the present appeal suit is to be allowed.
89. This Court is of the considered opinion that the general principle that the probate is judgment in rem, cannot be applied with reference to the facts and circumstances of the present case. In the present case, the Deity of the Temple, who is the minor, is the owner of the property. The erstwhile Trustees had permitted one Mr.Vengoba Rao to use the Temple Mandapam for taking classes and performed Mandakapadi at his cost. He was granted with a permission to take classes for primary students in the Mandapam and that will not be a ground to claim title as far as the appellants are concerned. Mr.Vengoba Rao created a Will in respect of his properties. Such Will is the beginning for commission of all such subsequent illegalities and the subsequent illegalities cannot be justified simply on the ground that the Will executed by Mr.Vengoba Rao was probated. Therefore, probating the Will alone is the point for the grant of relief in favour of the appellants. Either it is a calculated Will executed by Mr.Vengoba Rao or the Temple property was mistakenly included in the Will by 76/88 http://www.judis.nic.in A.S.No.568 of 2019 Mr.Vengoba Rao.
90. Whatever may be the circumstances, the fact remains that the respondent-Temple could able to establish through the documents that the suit property is a Temple Mandapam constructed in granite stone and statues and other characteristics of the Temple are found in the Mandapam and they have produced the photographs and the Trial Court also considered all those documents, arrived a conclusion that the respondent-Temple is the absolute owner of the suit property. Contrarily, the appellants/defendants are unable to establish their title in respect of the property. The Will executed by Mr.Vengoba Rao is the genesis for claiming title and based on the probate, it is contended by the appellants/defendants that the probate is a judgment in rem and therefore, it is binding on the Temple Authorities and accordingly, the Temple has not established their right and therefore, the appellants/ defendants are entitled for the suit property as such.
91. Claiming title in a negative manner is impermissible. The claim of the appellants/defendants in this case is that the respondent/ Temple has not established their title nor prayed for 77/88 http://www.judis.nic.in A.S.No.568 of 2019 declaration of title. Therefore, they are entitled for the suit property. If such a proposition is accepted, it is not only dangerous and the same would pave way for all such illegal grabbing of the public properties and in some occasions, private properties also. For example, if a person executes a Will knowingly or unknowingly in respect of the property for which he has no title and the legal heirs of the Testator of the Will probated the Will and claiming title, this Court is of an opinion that it is the easiest way of grabbing the Temple properties and sometimes, private properties. Such a proposition argued by the appellants deserve no merit consideration at all. Such a modus operandi, which is otherwise illegal, cannot be approved by this Court.
92. Title is to be proved independently by establishing through the documents. The appellants/defendants had not produced any document regarding the title except the Will executed by Mr.Vengoba Rao and the order of probate granted by this Court. The Will and probate cannot be considered as a valid document for the purpose of declaration of title. Thus, this Court is of the considered opinion that the appellants/defendants have not established that they are the absolute owners of the suit property. The appellants/ defendants have not marked any documents to show that the property 78/88 http://www.judis.nic.in A.S.No.568 of 2019 was purchased by Mr.Vengoba Rao and he became the absolute owner of the suit property.
93. Contrarily, the respondent-Temple is able to establish that the property stands in the name of the Temple for many years and even now and the suit property is nothing but a Temple Mandapam and Mandakapadi was being conducted in the same Mandapam by Mr.Vengoba Rao, who was a permissive occupant in the Temple Mandapam.
94. As far as the other ground raised that the respondent- Temple has not prayed for the relief of declaration of title and this Court is of an opinion that when the respondent-Temple is able to produce documents to establish that the suit property belongs to the Temple, there is no reason whatsoever to file a suit for declaration of title. Once there is a cloud cast upon the title, then alone the parties are at liberty to file a suit for declaration of title. When the respondent- Temple is able to establish that they are the absolute owners of the suit property, which is a Mandapam, then there is no necessity for the respondent-Temple to seek the relief of declaration of title. 79/88 http://www.judis.nic.in A.S.No.568 of 2019
95. The Trial Court relied on Ex.C-4, which is the Town Survey Resettlement Register corrected list of Thiruvateeswaranpettai, wherein it was mentioned as the minor Inam lands had been converted in Ryotwari and the Survey No.644/5 revealed that the patta stands in the name of Thiruvateeswaranpettai present Dharmakartha. Further, in Survey No.644/4 it was mentioned as Mr.Viswanatha Rao wife Smt.Tharabai. Further, the lands in Survey Nos.649/1 and 649/2, the patta stands in the name Thiruvateeswaranpettai Devasthanam.
96. As far as Ex.C-3 is concerned, the proceedings of the Tahsildar, Mylapore-Triplicane Taluk with regard to transfer of Registry for R.S.No.644/5, the Trial Court found that the Tahsildar did not sign in the said proceedings and the said column was left blank without any signature. Therefore, the Trial Court correctly found the doubt regarding the said transfer in favour of Smt.Padma Bai and rejected the said document to establish that the appellants/defendants are having right over the suit property.
97. The entire perusal of the documents revealed that the appellants/defendants have consistently created some documents in their favour in order to establish that they are the owners of the 80/88 http://www.judis.nic.in A.S.No.568 of 2019 property. However, the genesis of the documents are not made available, so as to consider that the appellants are the owners of the suit property. Contrarily, the respondent-Temple had produced the documents to establish that the Temple is the owner of the property and one Mr.Vengoba Rao was permitted to take classes in the Temple Mandapam and such a permission was granted by the erstwhile Trustees and Mr.Vengoba Rao misused the said permission and included the Temple Mandapam in his Will and the said Will was probated by the legal heirs of Mr.Vengoba Rao and based on the probated Will, they are claiming right over the suit property, which is otherwise stands in the name of the respondent-Temple. This being the factum, this Court has no hesitation in arriving a conclusion that the appellants/defendants have not established even a semblance of right in respect of the suit property and therefore, they are not entitled for any relief.
98. This Court is of the considered opinion that perusal of the entire documents and the evidences, the Trial Court has proceeded in right perspective. The Trial Court meticulously considered all the documents and the evidences produced by the plaintiff-Temple. For instance, the doubts regarding the documents marked on the side of 81/88 http://www.judis.nic.in A.S.No.568 of 2019 the defendants were well met out and the reasons are furnished in the judgment in clear terms. In other words, the reasons for disbelieving the documents filed by the defendants are candid and convincing and based on the principles of law. For example, the transfer of patta in the name of Smt.Padma Bai was fraudulently created.
99. The Trial Court found that as per Ex.A-25 order of Settlement Tahsildar, it is clearly stated that Survey No.644/5 is a Mandapam. In Ex.A-21 Register item Nos.26 and 29 are shown as Mandapams. The Trustees were stated to be mismanaged the property of the Temple and under those circumstances, one cannot expect that the Trustee would execute a deed for suit property. Under those circumstances, the Trial Court found that non filing of the relevant documents to show the actual date of handing over of possession of suit property to Mr.Vengoba Rao would not in any way affect the claim of the plaintiff with regard to the title of suit property.
100. This Court is of the considered opinion that the documents marked on behalf of the plaintiff-Temple revealed that the title stands in the name of the plaintiff-Temple and contrarily, the defendants would not able to establish that their dealing with the 82/88 http://www.judis.nic.in A.S.No.568 of 2019 property is in accordance with law.
101. The facts and circumstances put-forth by the defendants are doubtful and the documents filed by the defendants are subsequently created without impleading the plaintiff-Temple as a party and therefore, those documents cannot be trusted upon or to establish the title of the defendants. Contrarily, the plaintiff-Temple is able to establish that the suit property was a Mandapam and the Hindu Religious and Charitable Endowments Department also produced certain Registers to show that it was a Mandapam. Subsequent creation of Will, transfer of patta or Sale Deed made thereafter, cannot be a ground to disbelieve the documents produced by the plaintiff- Temple, as those subsequent documents are created by the defendants by taking undue advantage of the illegal Will and on account of the delay on the part of the plaintiff-Temple in approaching the Civil Court for appropriate relief as the temple had no knowledge about the Will executed by Mr.Vengoba Rao.
102. The plaintiff, being a Temple, represented by the Executive Officer, this Court is of the opinion that the documents produced by the plaintiff-Temple are scrutinised and tested with 83/88 http://www.judis.nic.in A.S.No.568 of 2019 reference to the nature of the probate, as rightly done by the Trial Court. Stone statues and their carvings found in the Mandapam are well considered by the Trial Court and accordingly, the Trial Court arrived a conclusion that the plaintiff-Temple has got a valid title over the suit property and consequently granted the relief of possession. When there is no cloud in respect of the title as the documents filed by the plaintiff established the title, then the proposition mooted out by the appellants deserve no merit consideration.
103. This Court is of the considered opinion that the trend of grabbing the Temple property, Mosque property and Church property are being developed in the Society and by creating certain subsequent documents, people are attempting to grab the public properties, more specifically belonged to Temples, Churches and Mosques. Under those circumstances, the Courts are bound to scrutinise the genesis of those documents and identify whether those documents can be trusted upon in respect of the person, who claims title.
104. In the present case, all the documents produced by the plaintiff-Temple revealed that the plaintiff-Temple is having valid 84/88 http://www.judis.nic.in A.S.No.568 of 2019 title over the suit property and the same absolutely belongs to the plaintiff-Temple. The findings of the Trial Court, in this regard, are candid and convincing. Even now the stone Mandapam, the carvings except the damaged portion, is prevailing and the photographs filed before the Trial Court also revealed the same.
105. Under these circumstances, this Court is of the considered opinion that the Trial Court has meticulously considered all the documents as well as the evidences produced by the respective parties in the suit and arrived a conclusion that the plaintiff-Temple is entitled by the relief of possession and other reliefs, as such, granted and, this Court do not find any perversity or infirmity.
106. Accordingly, the appellants/defendants are directed to quit and deliver the vacant possession of the suit mentioned property to the plaintiff-Temple, within a period of three months from the date of receipt of a copy of this judgment.
107. With the above directions, the judgment and decree dated 22.09.2017 passed by the learned IV Additional Judge, City Civil Court, Chennai in O.S.No.345 of 1996 is confirmed and consequently, 85/88 http://www.judis.nic.in A.S.No.568 of 2019 the present appeal suit in A.S.No.568 of 2019 stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is also dismissed.
31-01-2020 Index : Yes/No. Internet: Yes/No. Speaking Order/Non-Speaking Order Svn 86/88 http://www.judis.nic.in A.S.No.568 of 2019 To The IV Additional Judge, City Civil Court, Chennai.
87/88 http://www.judis.nic.in A.S.No.568 of 2019 S.M.SUBRAMANIAM, J.
Svn A.S.No.568 of 2019 31-01-2020 88/88 http://www.judis.nic.in