Madras High Court
Shifa Housing (P) Ltd vs Sankaranarayanan Swami 11Th Day on 25 August, 2011
Bench: P.Jyothimani, M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/08/2011 CORAM THE HONOURABLE Mr.JUSTICE P.JYOTHIMANI and THE HONOURABLE Mr.JUSTICE M.M.SUNDRESH C.M.A.(MD)No.946 of 2011 and C.R.P.(MD)Nos.1563, 1564, 1629 & 1199 to 1202 of 2011 and M.P.(MD)Nos.1,1, 1,2,2,2 & 2 of 2011 C.M.A.(MD)No.946 of 2011: 1.Shifa Housing (P) Ltd., Through its Managing Director, M.K.M.Mohammed Shafi, 82, Kailaspuram Middle Street, Tirunelveli Junction. 2.M.K.M.Mohamed Shafi 3.M.Aysha Dowlath ... Appellants Vs. Sankaranarayanan Swami 11th Day Adi Thapasu Mandagapadi Utsavam Fund "now known as Kuttlammal Religious and Charitable Trust" having its registered office at Agasthiar East Street, Ambasamudram, Tirunelveli District. Through Sole Trustee Sri V.S.Velayutham. ... Respondent Prayer Appeal filed under Order 43 Rule 1(r) C.P.C., against the fair and decretal order dated 29.06.2011 made in I.A.No.256 of 2010 in O.S.No.117 of 2010 on the file of I Additional District Court, Tirunelveli. !For Appellants ... Mr.P.Thiagarajan, Senior Counsel for Mr.G.R.Swaminathan ^For Respondent ... Mr.T.R.Rajagopalan, Senior Counsel for Mrs.N.Krishnaveni Mr.M.P.Senthil for Arulmigu Sankaranarayana Swamy Thirukoil Sankarankoil. C.R.P.(MD)No.1563 of 2011: 1.Shifa Housing (P) Ltd., Through its Managing Director, M.K.M.Mohammed Shafi, 82, Kailaspuram Middle Street, Tirunelveli Junction. 2.M.K.M.Mohamed Shafi 3.M.Aysha Dowlath ... Appellants Vs. Sankaranarayanan Swami 11th Day Adi Thapasu Mandagapadi Utsavam Fund "now known as Kuttlammal Religious and Charitable Trust" having its registered office at Agasthiar East Street, Ambasamudram, Tirunelveli District. Through Sole Trustee Sri V.S.Velayutham. ... Respondent Prayer Revision filed under Article 227 of the Constitution of India, to set aside the fair and decretal order dated 29.06.2011 in I.A.No.269 of 2010 in O.S.No.117 of 2010 on the file of I Additional District Court, Tirunelveli. !For Appellants ... Mr.AR.L.Sundaresan, Senior Counsel for Mr.N.Mohan ^For Respondent ... Mr.T.R.Rajagopalan, Senior Counsel for Mrs.N.Krishnaveni :COMMON JUDGMENT
(Judgment of the Court was delivered by P.JYOTHIMANI,J.) The defendants in the suit are the appellants as well as the revision petitioners herein. These Civil Miscellaneous Appeal and Civil Revision petitions are filed against the order of injunction granted by the trial Court against the defendants / appellant / revision petitioners not to alienate their properties, till the disposal of the suit, ordering impleadment of the Temple as a party to the suit and amending the particulars in respect of Court fee in accordance with G.O.Ms.No.363 dated 09.04.2010, which contemplates that the Hindu Religious and Charitable Endowments Department is liable to pay only Rs.100/- as a Court fee, respectively.
2.The case of the respondent / Trust herein, who has filed the suit for declaration is that the property to the extent of nearly 15.35 acres of land belongs to a Trust stated to have been created in the year 1975 and the Trust has been in possession of the property and subsequently, when they came to know that the defendants have attempted to put up super structure, the respondent / Trust has approached the Court, by filing the suit for declaration that the property belongs to the Mandagapadi.
3.The present appellants, who are the defendants in the suit, who claim to be the purchasers of the property from the vendors who claim title based on a partition in the year 2006, have stated that they being the promoters of the property, have sold various portions of the land to nearly 115 persons, who have been occupying various portions and various documents were filed before the Trial Court.
4.On the plaintiff side, Exs.A1 to A9 and Exs.A7 to A20 were marked to show that the plaintiff's Trust is the owner of the property. Of course, on the side of the defendants also, various sale deeds Exs.R1 to R9 were marked apart from the partition deed marked as Ex.B17 and B.18.
5.The learned trial judge, considering the totality of the situation, has found that the plaintiff has proved the prima facie case and the balance of convenience has been found in favour of the plaintiff and even though, the application for injunction was from altering the properties by the defendants, a lesser relief has been granted by the Trial Court by weighing the case of the plaintiff and to the effect that the defendants shall not alienate various portions of the property, till the disposal of the suit. The learned trial judge has discussed elaborately about various documents to come to such a conclusion, which in our considered view, does not warrant interference.
6.The contention of Mr.Thiyagarajan and Mr.AR.L.Sundaresan, learned Senior Counsels appearing for the appellants as well as the revision petitioners is that the balance of convenience has not been properly assessed by the trial court. Inasmuch as, both the parties are relying upon various documents and also considering the fact that more than 115 persons have purchased the property in various plots and it is also admitted that the defendants have developed the property,, the trial court ought not to have granted interim order.
7.On the other hand, Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the respondent / plaintiff would submit that originally, in the year 1985, the plaintiff / Trust has purchased the property and they have been in possession of the property continuously. Whileso, the defendants, who are claiming themselves to be the developers of the property, have purchased the property in the year 2006, based on a partition deed, which is not valid in law and hence, they cannot claim any right over the property. Therefore, according to him, prima facie finding made by the trial judge need not be interfered with.
8.As submitted by the learned Senior counsel for the respondent, a Division Bench of this Court in Begaum Vs. Seven Hills Real Estate and another 2008(4) CTC 126 has held that in case of granting of interim injunction, when alienation is prevented, the same cannot be said to be perverse and even otherwise, such alienation is affected by the concept of lis pendense and the Division Bench has found that restraining of further alienation is in the interest of the further purchasers to avoid further litigations. The relevant portion of the judgment of the Division Bench is as follows:
"1.Though ordinarily, any attempted dealing with the property forming the subject matter of the suit pending disposal of the suit, would be subject to the final result of the suit and in that sense, it may not be necessary to grant an injunction, it is seen in this case that the appellant has no intention of retaining the property with her, but has clearly manifested an intention to develop the property and selling it to third parties by entering into an agreement with another party in December, 1987. We have therefore to take into consideration the rights of the several innocent third parties also, who are likely to invest their hard earned money in the purchase of either houses of flats which may be promoted by the appellant. Interests of Justice certainly require that the third parties should be prevented from entering into the vicissitudes of this litigation, who would be the losers, if the appellant is allowed to implement her intention in the matter of the development of the property and selling it to third parties either as houses or even as flats and the suit is eventually decreed. We agree with the learned Judge that on the facts and in the circumstances of the case, the appellant should not be permitted to do so and she was rightly injuncted from alienating or otherwise disposing of the property or even altering the physical features of the property pendente lite. We therefore dismiss the appeal. No costs.
2.In order that the rights of parties may be known to them as early as possible and to enable the parties to exploit the property to their best advantage, it is desirable that the suit itself is tried and disposed of as early as possible preferably before the end of August, 1989. Counsel on both sides assure us that they will co-operate with the Court and give their assistance to such disposal and the direction for the disposal as given above is only pursuant to the assurance so given by the counsel."
9.However, while considering the case for amendment as well as impleading, the question as to whether the respondent / Trust represented by HR & CE Department is a party or not, the Trial Court has allowed the impleading petition on the ground that the respondent / Trust itself has earlier approached the Civil Court by filing a suit in O.S.No.566 of 2007 and that suit is again for a declaration and admittedly, the same is also pending before the Additional District Munsif Court, Tirunelveli. On these facts, we do not find any illegality and it cannot be said that the Temple is not a proper and necessary party for the purpose of deciding the issue.
10.In so far as the issue relating to the amendment, which has been directed to be carried out, is allowed based on G.O.Ms.No.363 dated 09.04.2010. It is relevant to extract the said G.O., which is as follows:
"G.O.Ms.No.363, Home (Courts-VI A), 9th April 2010.
No.11(2)/HO/720/2010 - In exercise of the powers conferred by Section 73 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (Tamil Nadu Act XIV of 1955), the Government of Tamil Nadu hereby reduces to a maximum of rupees one hundred, the fee payable under the said Act in respect of the Suits filed by religious institutions for restoration of immovable properties and for declaration of title over the immovable properties of temples under the control of the Hindu Religious and Charitable Endowments Department."
As per the said G.O., the Court fees payable is at the rate of Rs.100/- since it seems to be the Department and the Governmental agency.
11.A strong objection is raised by the defendants on the ground that when the lis is pending as to whether the Temple is entitled to the property or not, the decision relating to the Court fee cannot be decided before and the same has to be decided only along with the suit. Certainly, we see force in the said argument raised by the learned Senior Counsel for the appellants / petitioners. While approving the order of the trial court in impleading the Temple, we delete the portion relating to the G.O. in respect of payment of Court fee and leave it open to the Trial Court to decide the Court fee to be paid by the plaintiff ultimately, while deciding the suit.
12.In these circumstances, we do not see any reason to interfere with the order of the Trial Court. Accordingly, the Civil Miscellaneous Appeal as well as the Civil Revision Petitions stand dismissed. However, taking note of the fact that the pleadings in both the cases are completed and we are of the view that both the suits are to be decided by a common trial, we direct the learned I Additional District Judge, Tirunelveli, to try the suit in O.S.No.117 of 2010 along with O.S.No.566 of 2007 pending before the I Additional District Munsif Court, Tirunelveli, which is directed to be transferred to the I Additional District Court, Tiruenveli and the Court shall complete the trial, expeditiously after giving opportunity to the parties in any event, within a period of 6 months from the date of receipt of a copy of this judgment.
13.It is needless to state that any observation made by this Court in these appeal and revision petitions, which is the subject matter of the suits, shall not be taken into consideration by the trial court while deciding the suits. Making it further clear that the trial court shall decide the lis independently based on the documents and evidence, particularly the findings stated to have been given, as if, the defendants are the land grabbers.
14.It is now brought to the notice of this Court that the sole trustee of the plaintiff died and an application has been filed to substitute the present trustee, which is being objected to by the defendants as having no jurisdiction as per the trust deed. These are the issues, which are also to be decided by the Trial Court, while conducting trial.
No costs. Consequently, connected M.Ps.are closed.
nbj