Madras High Court
Veerabahu Vallavarayar vs Kuthalingam Pillai (Die) on 15 September, 2006
Author: J.A.K.Sampathkumar
Bench: J.A.K.Sampathkumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/09/2006 CORAM: THE HONOURABLE MR. JUSTICE J.A.K.SAMPATHKUMAR S.A.No.1160 of 1995 Veerabahu Vallavarayar .. Appellant vs. 1.Kuthalingam Pillai (Die) 2.Chidambaram Pillai 3.Kalyani (Cause title accepted, third respondent impleaded as the L.R. Of the deceased 1st respondent vide order of the Court dated 23.6.1995 in C.M.P.No.7242 of 1995) .. Respondents Second Appeal filed against the Judgment and Decree of the learned District Judge, Tuticorn in Cross Objections in A.S.No.29 of 1993 dated 12.1.1994 on appeal from the Judgment and Decree of the learned Subordinate Judge, Tuticorin in O.S.No.195 of 1990 dated 7.4.1992. !For appellant ... Mr.T.Srinivasa Raghavan ^For respondents ... Mr.K.Srinivasan :JUDGMENT
This Second Appeal is filed by the plaintiff, Veerabahu Vallavarayar in O.S.No.195 of 1990 against the Judgment and Decree in A.S.No.29 of 1993 and Cross Appeal No.30 of 1993 dated 12.1.1994 on the file of the District Court, Tuticorin in and by which the learned Subordinate Judge dismissed both the appeals while confirming the finding of the Trial Court, which dismissed the suit only for the relief of possession of the property.
2. The Trial Court decided three suits viz., O.S.Nos.213 of 19987, 195 of 1990 and 1956 of 1990 jointly and rendered a common judgment. The parties concerned in the above referred three suits are as follows:
"K.c.t.vz;.213/87 Fynrfuglgl;lzk; tPuknzhfhp mk;kd; nghapy;
mjd; mf;jhh; jk;gh gps;is K:ykhha; .. thjp
vjph;
1.tPughF ty;ythhah;
2.fpU zK:h;jp ty;ytuhah;
3.jk;gh tps;is
4.Fj;jhypq;fk; gps;is
5.tPuFkhurhkpah gps;is
6.MWkfk; gps;is
7.rq;futpq;fk; gps;is
8.tPhFkhurhkpah gps;is
9.gpr;irah
10.rpjk;guk; ..
gpujpthfpfs;
k.c.t.vz;195/90
1.tPughF ty;ythhah; .. thjp
vjph;
1.Fj;jhypq;fk; gps;is
2.rpjk;guk; gps;is ..
gpujpthfpfs;
K.c.t.vz; 196/90
tPukndhfjpak;d; nfhtpy; kw;Wk; Kg;gplhj;jpak;kd; nfhtpy;
Fynrfug;gl;lzk; mjd; guk;giu mwq;fhtyh; tPughF
ty;ytuhahh; K:ykha; ..
thjpfs;
vjph;
1.Fj;jhypq;fk; gps;is
2.rpjk;guk; gps;is
3.jhrpy;jhh; jpUr;bre;Jhh;
4.jkpH;ehL muR mjd; rpjk;gudhh; khtl;l
Ml;rpj; jiyth; Jhj;Jf;Fo K:ykha; ..
gpujpthfpfs;
3. In the common Judgment, the trial Court decreed the suit in O.S.No.195/90 declared that the plaintiff is the hereditary trustee but dismissed the suit for possession of the suit property. Similarly, the suits in O.S.No.213/1987 and in O.S.196/1990 were dismissed. So, the parties concerned in this appeal are with reference to the parties in O.S.No.195/1990 viz., Veerabahu Vallavarayar, plaintiff and Kuthalingam Pillai and Chidambaram Pillai, defendants.
4. Against the finding of the Trial Court in O.S.No.195/1990 dated 7.4.1992, the defendants filed an appeal in A.S.No.29 of 1993 with reference to the granting of declaratory relief in favour of the plaintiff. At the same time, the plaintiff in the said suit filed a Cross Appeal in A.S.No.29 of 1993 claiming possessory right also. Similarly, the plaintiff in O.S.No.213/1987 filed an appeal in A.S.No.30 of 1993 against the Juddgment and Decree of the Trial Court in dismissing the suit. Both the appeal and cross appeals were decided together and rendered finding. In the result, both the appeals were dismissed confirming the findings of the Trial Court.
5. (i) The present appeal is filed only by the plaintiff in O.S.No.195/1990 against the defendants with regard to relief of possessory right.
(ii) The plaintiff in O.S.No.213/87 has not filed any Second Appeal against the dismissal of the appeal in A.S.No.30/93.
6. The brief facts of the case are as follows with reference to O.S.No.195/1990.
(i) The plaintiff is the hereditary trustee and Poojari of Sri veeramanohari Amman Temple and Sri Muppidathi Amman Temple at Kulasekarapattinam, Tiruchendur Taluk, Tirunelveli District and he is functioning as such from 1953 onwards after the death of his father Angithaperumal Vallavarayar and before his father, his grand father and his ancestors were the trustees and poojaris of the above said temples and there are a number of records both in the Revenue and Settlement Department to prove the right of the plaintiff and his ancestors got the hereditary trusteeship and poojari right of the above said temples. The said temples are now in the possession and management of the plaintiff.
(ii) The plaintiff has also been declared as trustee by the Deputy commissioner, Hindu Religious and Charitable Endowment (Administration) Department on an application filed by the plaintiff in O.A.No.37 of 1998 and the Deputy Commissioner after an elaborate enquiry, based on the report filed by the Inspector of Hindu Religious and Charitable Endowment Department, Tiruchendur, has passed an order on 1.9.1979 declaring the plaintiff as the hereditary trustee and poojari of the above two temples and its properties. The temples own immovable properties in Udangudi Village and Vellore and the patta for the above lands stands in the name of Sri Veera Manohari Amman Temple as represented by the plaintiff-hereditary trustee herein.
(iii) The plaintiff further stated that the defendants are now making a false claim as trustees of Sri Veeramanohari Amman Temple only and they are trying to appropriate the entire income from the lands and trees without any reference to the temple and the plaintiff. The defendants allege that they are the kattalaidars for performing Adi Pooram celebrations in the temple and therefore, they are entitled to act as trustees in the said temples and all its properties and they are guilty of misappropriation of the income for the properties and they are trying to set up hostile title as against the temple.
The defendants are acting as against the interest of the institution and its properties and therefore, they are not entitled to be in possession of those properties and its income as their possession has become unlawful.
(iv) On 3.8.1986, the first defendant has committed theft of six wooden logs of good quality worth Rs.6,000/- and the plaintiff has preferred a complaint to the Sub Inspector of Police, Kulasekarapattinam, regarding the theft on 3.8.1986 itself. The plaintiff was summoned by the Sub Inspector of Police, Kulasekarapattinam on the same day and he was threatened and his signature was obtained in a prepared statement by threat and force by the defendants and the they have committed extortion by using force and criminal intimidation. Therefore, the plaintiff has chosen to file a suit for declaration and possessory right.
7. The defendants state as follows:
(i) Neither the plaintiff nor any of his predecessors was the trustee of the said temple. The plaintiff has never been in possession and management of the temple. He is not even a poojari of the temple. Actually, his brother Krishna Vallavarayar, who is a teacher by avocation, is performing the activities of the poojari.
(ii) The said Sri veeramanohari Amman Temple was founded a few hundred years ago, by the Vellala community people of Kulasekarapattinam. The said temple owns some landed properties. The ancestors of the defendants family were in administration of the said temple all along and were in management and enjoyment of the properties belonging to the said temple. Some decades ago, the defendants' paternal grand-father's brother Veerabahu Pillai was the Huqdar of the said temple. He died issueless. After his demise, his brother, Thamba became the trustee of the said temple. The defendants are the descendants of the said Thamba Pillai. After the demise of the said Thamba Pillai, his son S.T.Veerabahu Pillai became the trustee. He was holding the office of the Huqdar for nearly 60 yaers. During trusteeship, he had initiated many proceedings in law which will prove that he was the hereditary trustee of the said temple. Therefore, the son of Veerabahu Pillai viz., Thamba Pillai has become Huqdar of the said temple in the year 1973. Since then, he has been in management of the said temple and the property belongs to the temple. He has been performing "Adi Pporam" kattalai being held in the month of "Adi" every year out of the income derived from the properties belonging to the temple. The first defendant is the Thamba Pillai (Huqdar) paternal uncle's son. The second defendant is the paternal uncle's grand son of the said Thamba Pillai. The first defendant was acting as a huqdar for a few months, when the present huqdar Thamba Pillai was getting treatment for his illness. The said temple, which is a denominational temple of Vallala community of Kulasekarapattinam, can not be disputed. The plaintiff does not belong to that community for his claim to be hereditary trustee of the said temple.
(iii) The defendants further stated that the plaintiff has no right, whatsoever over the schedule mentioned properties. The defendants never misappropriated the income from the temple properties. No statement was obtained muchless any statement from the plaintiff under threat or coercion.
Therefore, the above suit is liable to be dismissed.
8. This suit along with the suits viz., 213/1987 and 196/1990 were jointly tried in the trial Court. Before the trial Court, the plaintiff in O.S.No.213/1987 viz., Thamba Pillai was examined as PW.1 Exs.A1 to A6 were marked on the side of the plaintiff. Veerabahu Vallavarayar, who is the defendant in O.S.No.213/1987 and the plaintiff in O.S.No.195/1990 and 196/1990 was examined as DW.1. Kothalingam Pillai, who is the 4th defendant in O.S.No.213/1987 and the first defendants in O.S.Nos.195 and 196 of 1990 was examined as DW.2. Exs.B1 to B50 were marked on the side of the defendants.
9. The trial Court after analysing the evidence in depth, partly decreed the suit in respect of declaration and injuction with reference to O.S.No.195/1990 and dismissed the other reliefs while dismissing the suits in O.S.No.213/1987 and 196/1990 rejecting the claim of the plaintiff.
10. Against which, two appeal suits were filed in A.S.No.29 of 1993 and 30 of 1993 against the Judgment and Decree made in O.S.Nos.195 of 1990 and 213/1987 and cross appeal in A.S.No.29 of 1993 filed by the plaintiff in O.S.No.195/1990.
11. Heard Mr. T.Srinivasa Raghavan, learned counsel for the appellant and Mr. K.Srinivasan, learned counsel for the respondents.
12. The Second Appeal has been admitted on the following substantial question of law:
In the absence of an issue between the parties regarding the question of title of the suit properties as belonging to the temple, was the appellate Court right in rejecting the prayer for recovery of possession after holding that the appellants have a hereditary right to function as trustee of the temple?
13. Upon hearing the rival claims the following points arise for consideration:
(i) Whether the documents filed in C.M.P.No.1024 of 2004 under Order 41 Rule 27 can be entertained and relied on at the appeal stage?
(ii) Whether the suit properties are the absolute property of the temple?
(iii) Whether the defendants in O.S.No.195/1990 are the kattalaidars of the suit temple for performing "Adi Pooram' celebration of the temple?
(iv) Whether items 2, 3 and 4 of the suit properties are in possession of the defendants?
(v) Whether the plaintiffs are entitled to repossess the property of the temple from the hands of the defendants?
14. Point (i)
(a) Learned counsel for the appellant contended that the documents now sought for to be filed came into their possession subsequent to the disposal of the appeal before the competent authority and the said documents are related to third item of the suit properties and that the second defendant misused his power and obtained "2 C" patta in his favour and the same was cancelled by the officials subsequent to the disposal of the suit and as such those documents are necessary for just decision in this second appeal.
(b) Learned counsel for the respondents/defendants contended that the documents sought for by the plaintiff are not concerned with the suit dispute and that the present C.M.P. is a belated one and that the alleged documents will not in any way help the Court to decide the issue on hands and therefore, pray to dismiss the petition.
(c) Rival contentions are considered in detail. The documents sought for to be marked are as follows:
(i) 13.9.1994 Letter by Assistant Commissioner, H.R.&C.E., Tuticorin in Na.Ka.4019/94/A2
(ii) 21.9.1994 Order of Tahsildar, Na.Ka.G1/10742/94
(iii) 11.6.1997 Additional District Collector's Order 13/95160/95
(iv) 6.11.1997 R.D.O.Order in E1/600/96
(d) On a perusal of the records, it revealed that the appeals were disposed of on 12.1.1994. The documents sought for to be filed came into existence subsequent to the disposal of the above appeals.
(e) On a perusal of those documents, I find that 2C patta was issued to Chidambaram Pillai, who is a party in the said documents. The said documents are related to the 4th item of the suit property. So, the documents sought for to be filed are very much relevant to decide the facts on hand. In fact, learned counsel for the respondents/defendants ought not to have objected to this petition because the second defendant viz., Chidambaram Pillai is a party to the suit proceedings. Possession of 4th item by Chidambaram Pillai was not denied.
(f) In such circumstances, the objection of the learned counsel for the respondents/defendants is bereft of any merit and the same is rejected. Taking into consideration of the facts and circumstances, I am satisfied that the appellant has made out a case to receive the documents under Order 41 Rule 27 CPC. This point is answered in favour of the plaintiff. The documents relied on by the petitioner are marked as Exs.B51, B52, B53,and B54.
15. Point (ii) Learned counsel for the appellant/plaintiff submitted that the suit properties are the absolute property of the suit temple. They also relied on Patta Ex.B39 and tax receipt to sustain the above claim. The defendant, in fact, admitted that he has been paying kists for the properties in his possession as per Ex.B50. In the written statement also, the defendant admitted that the suit property belongs to the temple only. The relevant pleadings in the written statement reads as follows:
"The said temple owns some landed properties. The ancestors of the defendants' family were in admission of the said temple all along and were in management and enjoyment of the properties belonging to the said temple. Since 1973, he has been in management of the temple and the properties belonging to the temple. He has been performing "Aadi Pooram" Kattalai being held in the month of "Aadi"
every year out of the income derived from properties belonging to the temple." The defendants are appropriating the income from the temple properties. The evidence of DW.2 regarding this aspect reads as follows:
";jk;gh gps;isapd; jhj;jh jk;gh vps;is vdf;Fk; jhj;jh. mth; me;j nfhtpypy; cs;s epyq;fSf;F thp brYj;jpa[s;shh;. nfhtpYf;F brhe;jkhd epyj;jpw;F thp brYj;jpa g[];jfk; v.th.rh.M.50 ,e;j thpfis jk;gh gps;is brYj;jpa[slshh;."
The evidence of DW.2 coupled with the written pleadings proved beyond doubt that the suit property belongs to the temple only. Moreover, the documents filed on the side of the defendants would also prove that the suit properties are absolutely belong to the temple only. Whereas the lower appellate Court erred in saying that plaintiff has miserably failed to prove that the suit property belongs to the temple property. When the defendant himself has stated in the written statement and admitted in the evidence that the suit property belongs to the temple property, it is not open to the lower appellate Court to render a finding contra to the admitted facts by saying that "the plaintiff has miserably failed to prove that the suit property belongs to the temple property." Therefore, I hold that the finding of the lower appellate Court in this regard is contrary to the admitted facts and as such the said finding is hereby set aside. In the result, I hold that the suit property is the absolute property of the temple not only on the basis of the documents on the side of the plaintiff but also by the admission of the defendants in the written statement and in his evidence. Accordingly, this point is answered.
16. Point (iii)
(a) Except a bare suggestion to the witnesses, there is nothing on record to show that the defendants are the kattalaidars to perform "Aadi Pooram" in the month of "Aadi" every year. No documents were filed by the defendants to sustain this claim. The lower appellate Court has not taken cognizance of this matter in right perspective and should have negatived. I have to negative the claim of the defendants that they are the kattalaidars of the suit temple to perform "Aadi Pooram" in the month of "Aadi". In fact, the second defendant viz., Chidambaram Pillai did not appear before the Trial Court and state that he is the kattalaidar in respect of the suit properties of the temple to perform "Aadi Pooram' in the month of "Aadi" every year. However, the first defendant, Kuthalingam was examined as DW.2 to sustain the claim in the written statement. In his chief examination, he has not stated that the defendants are the kattalaidars in respect of certain properties of the temple to perform "Aadi Pooram" festival in the month of "Aadi" every year. Only at the time of cross examination, he has stated that the kattalai was created by their ancestors while admitting that he did not know who created Kattalai." His specific averment reads as follows:
",e;j fl;lisia vq;fs; Kd;ndhh;fs; bra;jhh;fs;. Fwpg;ghf ahh; fhyj;jpy; fl;lis Vw;gLj;jgl;lJ vd;W bjhpahJ."
DW.2 also not come forward with a specific case that the defendants are the kattalaidars in respect of certain properties of the suit temple property to perform "Aadi Pooram" festival. It is proved that the 4th item of the property was vested with the defendants along with the temple palmirah trees. If that being so, the second defendant had audacity of obtaining C2 Patta in his name, claiming to be under his independent enjoyment. Immediately, the plaintiff resisted the claim of the defedant before the concerned authority and got C2 patta cancelled.
(b) In this context, let me refer the documents Exs.B51 to B54. The entire text of Ex.B54 is important to find out the nature and character of the second defendant herein.
Proceedings of the Revenue Divisional Officer, Tiruchendur, Present: Thiru. R. Dasarathan, M.A., E1/600/96 Dated : .11.97 Sub: Trees - Thuthukudi District-Tiruchendur Taluk-Udangudi Village-Survey No.47-2C Patta granted to 44 Palmyrah Trees standing-Appeal- Regarding. Read: 1. Thoothukudi Sub-Collector's K.Dis.12074/94, dated 20.10.95.
2.Thoothukudi Additional collector's Proceedings NO.I 3/95150/95 dated 11.6.97.
3.Connected Records.
...
ORDER:
As the Sub-Collector, Thoothukudi rejected the request of the Thiru A.Veerabahu Vallavarayar, Hereditary Trustee, Veeramanohari Amman Temple, Kulasekarapattinam, Tiruchendur Taluk to cancel the 2-C Patta granted in S.No.47 of Udangudi Village in Sub-Collector K.Dis.12074/94, dated 20.10.95, he preferred an appeal petition before the then District Revenue Officer, Thoothukudi. After conducting enquiry the Additional Collector, Thoothukudi in his order No.I3/95150/96, dated 11.6.97 ordered and directed the Revenue Divisional Officer, Tiruchendur to condcut fresh enquiry and dispose after letting in evidence by both sides and as per rules and regulations in force. Both the parties were asked to appear for enquiry on 8.8.1997 and they appeared. But then enquiry was postponed to 28.8.97 as both of them requested time. They again appeared on 28.8.97 and stated that their advocates have participated in boycotting Court for their demands, and hence again requested to postpone the enquiry on 9.9.97. On 9.9.97 both the parties have appeared for enquiry with their advocates and their arguments were heard.
An extent of 0.87.5 Hectares of land originally stands registered as Kovil Poramboke. The Tahsildar, Tiruchendur has issued a 2-C patta for 44 Palmyrah Trees standing in this land in his D.Dis13138/86, dated 18.8.86 to one Thiru. Chidambaram Pillai, S/o. Thambapillai of Tirunelveli under patta No.320. This land has been then transferred as Kulasekarapattinam Arulmigu Veeramanohari Amman Thirukoil as per the orders of the Tahsildar, Tiruchendur in his G1/10742/94, dated 21.9.94. Further the 2-C Pattadar Thiru.Chidambaram has leased out his 2-C rights to one Thiru Sudalai Konar.
Since the land has been transferred in the name of the temple, the other rights among the land, i.e. trees, buildings or any other structures should be withdrawn and they may be left at the disposal of the pattadar, i.e. to the temple authorities. Also as per the conditions of the 2-C grant, the original pattadar should not sell or lease his rights to any body else. In this case, the 2-C pattadar, Thiru.Chidambaram Pillai has leased out his 2-C rights to one Thiru. Sudalai Konar.
Taking into consideration that the land has been transferred as patta in the name of A/M Veeramanohari Amman Thirukoil and also the condition of the 2-C Patta has been violated, the 2-C Patta issued in the name of Thiru. Chidambaram Pillai for 44 Palmyrah Trees is hereby ordered to be cancelled with immediate effect and left at the maintenance of the pattadar, i.e. the Temple Authorities.
Sd/-
Revenue Divisional Officer, Tiruchendur."
(c) It is specifically stated that the patta of the suit land has been transferred in the name of A/M Veeramanohari Amman Thirukoil and also the condition of C2 patta has been violated. The C2 patta issued in the name of Chidambram Pilla for 44 Palmyrah Trees has been cancelled and allotted to the maintenance of the pattadar i.e. the Temple authority. This order would imply that the second defendant has misused his authority usurping the temple properties by obtaining C2 patta by misleading the revenue officials.
So much so, the 2nd defendant had also leased out the C2 patta property to one Sudalai Konar. If that being the case, the defendants should not be alleged to be in possession of the suit properties any more to misuse the same for their personal gain. Though 2nd defendant admitted that he has been performing "Adi Pooram" festival as kattalaidarar, not even a scrap of paper has been filed to show that the defendants were really performing the festival as Kattalaidarar during "Aadi". The income of the properties also not placed for scrutiny before the Court. They have also not filed any document about the expenses met for performing "Aadi Pooram" festival. There is, absolutely, no evidence on record with regard to the fact that the defendants are the kattalaidarar as on date. In fact, they have misused the temple properties for their personal gain, which fact was elicited through Exs.B51 to B54. As on date, though the defendants are in possession of the suit properties, they are not in possession of the same in any legal manner. Therefore, this point is answered against the defendants.
17. Point (iv) and (v) As on date, the items of 2, 3 and 4 are in possession and enjoyment of the defendants. They have no legal right to possess the same. The plaintiff is the hereditary trustee of the temple, which fact was not denied. The plaintiff is entitled to repossess the suit property and as the same is not in legal possession of the defendants. This point is answered in favour of the plaintiff.
18. Before parting with the case, let me precise my finding in a nutshell.
(i) The suit property belong to the temple as per the admission of the defendant. The principles laid down in the decision reported in 2002 (3) LW 118, and 2005 (II) SCC 279 coupled with the views of Order 12 Rule 6 CPC and Sec.56 I.E. Act, supports my finding.
(ii) Whatever the exact nature of Kattalais may be and that must depend upon the usage's of particular temples - one fact ought to be remembered in this connection and that is that when the grant is to the deity and the income of particular property is earmarked for special services which are entrusted to a person if there is a surplus, which cannot be spent on these services, it would be a case for the application of the cypres doctrine and the said person, can on no account claim surplus. Whereas the defendants claimed to be a Kattalaidar not rendered account to sustain their claim.
(iii) The Courts have a general "parens patriah" jurisdiction over trust or charities and religious and religious purposes. Here is a case where the defendants have acted against the interest of the temple and obtained 2C Patta from the Tahsildar by concealing the fact of the temple property and thereafter, leased out the temple property to one Thiru. Sudalai Konar and not accounted for the amount received from such transaction. Therefore, the defendants are not competent to handle the temple properties as kattalaidar as per the principle laid down in the rulings reported in-
(1) 2003 (3) LW 122 (2) 2003 (3) LW 380 (3) 1999 (3) LW 227
(iv) The plaintiffs are the hereditary trustees which fact was conceded by the defendants.
(v) The defendants are bound to handover the suit properties which are in their possession, due to their misdeed.
(vi) The defendants are bound to render accounts. Any default would lead to both Criminal and Civil prosecution.
19. In the result, the appeal is allowed. The Judgment and Decree of the Courts below in dismissing the suit for possessory relief is set aside. Accordingly, the suit is decreed for possessory relief also. Parties have to bear their respective costs.
20. It is admitted that the suit property is possession and enjoyment of the defendants as on date. In such circumstances, they are bound to render account with the statement of income and expenditure with reference to items 2, 3 and 4 of the properties.
asvm To
1.The District Court, Tuticorin.
2.The Subordinate Court, Tuticorin.