Madras High Court
Sami Arul Educational Trust vs S.Peter on 16 April, 2015
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
CAV ON 26/03/2015
DATED: 16/04/2015
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
S.A.(MD)No.692 of 2014
Sami Arul Educational Trust,
Represented by its Managing Trustee,
L.B.S.Yadhav,
Pillaiyarpatti, Vallam,
Thanjavur Taluk. ... Appellant
(Cause title accepted vide order dated
11.09.2014 made in M.P.No.1 of 2014 in
S.A.(MD)S.R.No.29189 of 2014)
Vs.
S.Peter ... Respondent
PRAYER: The above Second Appeal is filed under Section 100 C.P.C. against
the judgment and decree dated 29.04.2014 in A.S.No.70 of 2012, on the file of
the Principal District Judge, Thanjavur, reversing the judgment and decree
dated 28.08.2012 made in O.S.No.290 of 2010, on the file of the Principal
Subordinate Judge, Thanjavur.
!For Appellant : Mr.K.S.Sankar Murali
^For Respondent : Mr.R.Muthukumarasamy, Senior Counsel
For Mr.S.Sethuraman
:JUDGMENT
The short facts of the case are as follows:-
The respondent herein / plaintiff had filed a civil suit against the appellant herein / defendant for declaration stating that he is the absolute owner of the suit schedule mentioned property and further direction to deliver the vacant possession etc. The plaintiff submits that he is the absolute owner and he is in possession and enjoyment of the properties mentioned in the schedule.
2. The short facts of the plaint are as follows:-
The plaintiff has purchased the undermentioned properties under two different registered sale deed dated 05.11.2004 and on 06.07.2005 for valuable consideration from two different persons. The plaintiff submits that he has produced the original of the sale deed dated 05.11.2004 and 06.07.2005. The plaintiff after his purchase has had the patta transferred in his name for the undermentioned properties and he is in exclusive possession of the same in his individual capacity. The plaintiff has also produced the patta transfer orders issued by the Regional Deputy Tahsildar, Thanjavur. The plaintiff submits that no other person has got any right, title, enjoyment, interest of possession over the undermentioned properties.
3. The plaintiff submits that originally he was the claimant and Managing Trustee of Sami Arul Educational Trust situated in Pillayarpatti near Vallam. Subsequently, in the Board meeting held on 03.09.2005, a resolution was passed unanimously and the defendant herein was appointed as the Managing Trustee along with some other as Trustees of Sami Arul Trust. The plaintiff further submits that he submitted his resignation to the Board of Trustees. The Board conducted the meeting in the presence of Trustees and accepted the resignation offered by the plaintiff. It was also resolved that the defendant herein along with three others Trustees have to give a sum of Rs.99.821 lakhs as loan to repay the existing loan creditors. The properties belonging to the Trust then in existence were handed over to the defendant, representing the aforesaid Trust. Except the properties belonging to the said Trust, no other property was transferred to the defendant or any other Trustee. The undermentioned properties are the private properties of the plaintiff and they have nothing to do with the said educational Trust or the college known as Sami Arul College, run by the said Trust. In fact, the plaintiff has put up a small structure in "A" schedule property for his own purpose.
4. The plaintiff further submits that the defendant is the permanent resident of Chennai and he goes over to Thanjavur periodically in connection with the administration of the Trust and the College. The defendant, having taken over the Trust and the College is giving pin pricks to the plaintiff, by sending frivolous communications and also by setting up obstacles, in the way of peaceful enjoyment of his own private properties. The plaintiff is successfully running Madha Group of Academic Institutions, like Arts, Engineering etc., Colleges at Chennai. This has become an eye-sore to the defendant. The plaintiff, who is busy with administration of Educational Institutions at Chennai goes to Thanjavur only occasionally while going to his native place, Pudukkottai. The plaintiff's relative at Thanjavur looks after the plaintiff's properties at Thanjavur. While so, on 12.02.2007, the plaintiff who was on his way to his native place, went to look up the undermentioned properties of his. To his utter shock and dismay, the plaintiff found that the defendant had trespassed upon items 1 and 2 to the "A" schedule mentioned hereunder and had been putting up structures, without the knowledge of the plaintiff. When the plaintiff contacted the Trust Office, he was told that the construction was being put up only at the instance of the defendant. Immediately, the plaintiff rushed to Vallam Police and preferred a complaint. On verification, the plaintiff found that the buildings were being put up in a brazen manner only on item 1 and 2 of "A" Schedule and the third item ("B" Schedule) had not been touched. The police promised to look into it and also enquire the defendant. The Police has also instructed the defendant and his men not to put up any further construction.
5. The plaintiff further submits that the defendant who commands man power and local influence and who had so brazenly trespassed upon items 1 and 2 of the "A" schedule mentioned hereunder, is not likely to pay heed to the instructions of the police. In the circumstances, the plaintiff has no other alternative than to seek the relief of recovery of possession of vacant site and also declaration of his title. In respect of "B" schedule, the plaintiff is constrained to seek the relief of permanent injunction. The plaintiff further submits that the defendant has no vestige of title or possession over the undermentioned properties. The plaintiff is the absolute owner of the properties. Hence, a suit has been filed against the defendant.
6. The defendant has filed a written statement and resisted the suit. The defendant stated that the plaintiff has not purchased the suit property under two different sale deeds dated 05.11.2004 and 06.07.2005. On the other hand, the plaintiff was the Chairman and Managing Trustee of the Sami Arul Educational Trust and Sami Arul College was part of the activities of Sami Arul Educational Trust. In the capacity of the Managing Trustee and President of Samil Arul College, the suit properties mentioned in the "A" and "B" schedule were purchased by the Sami Arul Educational Trust. The suit properties never belonged to the plaintiff in his individual capacity. The perusal of the sale deeds dated 05.11.2004 and 06.07.2005 unmistakenly and unambiguously shows that the purchaser was only the Sami Arul Educational Trust. It is not for identification of the plaintiff that he was described as President of Sami Arul College of Trust. If really the purchase was made by the plaintiff in his individual capacity, the purchaser need not have been described in the sale deed as Managing Trustee of Sami Arul Educational Trust or President of Sami Arul College since he is generally identified as the person carrying on the educational trust, Madras and not at Thanjavur. The description of purchaser of Sami Arul College is a clear indication that the purchaser is the Sami Arul Educational Trust and Sami Arul College and not a private property of the purchaser.
7. The defendant further submits that the plaintiff is precluded from setting forth or putting forth the private ownership contrary to the recital in the registered sale deed. The allegation that the patta was transferred in the name of the plaintiff in his individual capacity and that it is in his exclusive possession are denied. Even if a patta transfer has been made in the name of the plaintiff in his individual capacity, the same cannot confer any ownership or title to the plaintiff in his individual capacity when he purchased the suit properties as representative of the Trust and the transfer of patta in the capacity as Trustee and holding of the property has been only with the Trust for the Sami Arul Educational Trust and Sami Arul College. The defendant further submits that the plaintiff along with others was in the Board of Management of Sami Arul Educational Trust and he was the Managing Trustee of the said Trust. The plaintiff along with his Board of Trustees resigned from the Board of Trustees, after the defendant and three others were inducted as Trustees in the Sami Arul Educational Trust. The plaintiff and some other Trustees resigned from the Board of Trustees and particularly as member of the Trust on 15.09.2005. It was at the meeting of the Board of Trustees held on 12.09.2005, the plaintiff has expressed his desire not to continue as Manging Trustee or even as a trustee on account of pre-occupation. On that day 11 Trustees attended the Board Meeting in the same proceedings. On that day itself, the plaintiff expressed to the Board of Trustees that the loan creditors are pressurizing for repayment of the loan.
8. The defendant further submits that on the meeting held on 12.09.2005 of the Board of Trustees, the plaintiff claimed Rs.40,00,000/- as due to him for having made advance for the purchase of "A" and "B" schedule properties mentioned in the plaint. It is submitted that "A' schedule property was purchased by the Sami Arul Educational Trust represented by the plaintiff as the Manging Trustee by the registered sale deed dated 05.11.2004. Contrary to the recital in the sale deed, the plaintiff has chosen to lay the false claim as if the "A" schedule property belongs to him personally. Therefore, it is very quite clear, even according to the plaintiff who was the Managing Trustee till 15.09.2005, that sale consideration was paid from the defendant Trust amount to the vendor Shanthi, through advancing the amount to the Trust and later realizing the amount from the Trust. Since the amount paid to the vendor of "B" schedule property belonged to the defendant Trust, it is clearly mentioned in the sale deed dated 06.07.2005 that the purchase is made by the President of Sami Arul College. If the property is intended to be purchased for personal benefit, there is no need to mention that the purchaser is the President of Sami Arul College. The absence of description that he is the Managing Trustee of Sami Arul Educational Trust, cannot lead to the conclusion that the purchaser has purchased the "B" schedule property in his individual capacity. To find out who is the real purchaser, it is to be seen from whom the money was paid or whose money passed to the hands of the seller and this is the sole criteria to dedicate whether the property belong to Sami Arul College or Sami Arul Educational Trust or the plaintiff purchased the property for his personal benefits.
9. The defendant further submits that one more circumstance to clinch the matter that who is the real purchasers, is whether the petitioner purchased the property in his individual capacity or as a Trustee. In this connection, it may be considered that "B" schedule property form part of the entire 13 acres wherein the College is housed which has been admittedly, given to the Trust as per the notice of plaintiff. Further, in "A" schedule already the Trust building has been commenced by the plaintiff after obtaining permission from Vallam Panchayat for construction of College Hostel. Further, there is no other interest for the plaintiff, to acquire any property because he has no other activities for him, at Thanjavur. The "B" schedule property was also purchased by Sami Arul Educational Trust and that is the reason for mentioning the plaintiff in the sale deed as President of Sami Arul College. The question whether the property is purchased by the plaintiff or on behalf of Sami Arul College, which is the unit of Sami Arul Educational Trust, has to be seen from the conduct of the very plaintiff and who provided the money to the Trust for the purchase of "B" schedule property. The plaintiff himself has maintained the Ledger for educational Trust of which Sami Arul College is part of it. He has mentioned in the account that Rs.30,00,000/- has been advanced by him to the Trust on 01.04.2005. In the Ledger Folio page 99, there is an entry to that effect made by the plaintiff. He has also mentioned in the same ledger page that the loan advanced to the Trust by the plaintiff for the land purchased from Shanthi is for a sum of Rs.10,00,000/-. This amount is stated to be the advance by Peter to the Sami Arul Educational Trust. The said Shanthi is the wife of Thirugnanam, who through his power agent Kasthuri, sold "A" schedule property in the suit as stated above. The minutes of the Trust will also prove this amply.
10. The defendant further submits that Shanthi, sold this property as stated above to the Sami Arul Educational Trust as stated under a registered sale deed dated 06.07.2005. This is the date which has also been referred to in the ledger page relating to Mr.P.Peter, wherein a sum of Rs.10,00,000/- stated to have been advanced to the Trust for the purpose of purchasing the "B" schedule property from Shanthi. Except "B" schedule property there is no other connection with Shanthi. Now, the plaintiff has paid this Rs.10,00,000/- and Rs.1,00,000/- from the College fund for the purpose of purchase from Shanthi. After he retired from the Board of Trustees, he has recovered the above said Rs.30,00,000/- and Rs.10,00,000/- from the respondent Trust through a cheque bearing No.2279734 drawn on Dena Bank dated 21.09.2005. The plaintiff is having interest only at Chennai and he has no other interest to acquire this property here. This will show that "B" schedule property only belongs to Sami Arul Educational Trust of which Sami Arul College is a part. It is also submitted that when the plaintiff was the Managing Trustee of the Board, the resolution has been passed whereby Gunaseelan, Vaithiyanathan were to transfer and register the sale deed to be executed by Thirugnanam for the land to the Trust which is referable only to the "A" schedule property in the plaint. The plaintiff is also aware that Sami Arul College, which is part of Sami Arul Educational Trust, has leased the "B" schedule property to Sami Vivekananda College of Teacher Education for a period of 34 years by a registered lease deed. After getting the lease, the above lessee approached Panchayat, Vallam for obtaining building license for erecting superstructure for the purpose of accommodations for College Course of B.Ed. The said lessee also put up pillars and came up to the stage and the plaintiff has no right to seek for injunction restraining the defendant from interfering with the alleged possession of the plaintiff. After resignation from the Board of Trustee on 15.09.2005, he ceases to have any connection with all the properties including "A" and "B" schedules belonging to the said Trust which is in continued possession of the defendant and the plaintiff ceases to have any right in the property in any of the "A" and "B" schedule property mentioned in the plaint.
11. The defendant further submits that the plaintiff has committed breach of Trust, cheating apart from criminal offences for which steps have been taken by the defendant for criminal action. To make this defendant to coerce the Managing Trustee to withdraw the criminal action, the plaintiff has chosen to come forward with the vexatious application and suit. The plaintiff suppressed the exchange of notices between himself and the defendant Trust. They will reveal to what extent this plaintiff has gone illegally and how illegally he has withdrawn amounts from the Bank, even after his retirement taking advantage of illegal possession of the cheque book of the Trust. It is submitted that after the retirement he has not given the documents of the Trust fully and now he has misused this possession of the documents to get unjust enrichment on account of having been the Managing Trustee till 15.09.2005. The ledger account of Sami Arul Educational Trust at Dena Bank will also prove the drawings made by the plaintiff. The encumbrance also of "A" and "B" schedule properties given by the Sub Registrar also clearly amplifies that the purchase was not by individual capacity of Peter but only for the trust. The account books also clearly reveal that he has created loans in favour of his kith and kin and has collected the amount from the Trust illegally. The defendant reserves his right to proceed with criminal action for his illegal act before the appropriate forum. The plaintiff has not chosen to implead the Sami Vivekananda Trust to whom the registered lease has been granted by this defendant. The suit is bad for non-joinder of the proper and necessary parties. Since the plaintiff is not in possession of the suit property from 15.09.2005, the plaintiff has no right or to claim any relief in respect of the suit property. The plaintiff left Thanjavur once and for all to attend his own institution and management of Trust at Chennai. The allegation that the plaintiff's relatives look after the plaintiff's property in Thanjavur is false. After he left the Board of Trust, when the plaintiff resigned from the Board of Management, he handed over the suit properties also to the extent of 13 acres possessed by the Sami Arul Educational Trust, who contend that he has handed over other than the suit properties is not true. It is contended that the suit properties also belong to Sami Arul Educational Trust.
12. The defendant further submits that the contention of the plaintiff that he has put up a small structure in the "A" schedule for his own purpose is incorrect. The structure has been put for the commercial purpose of the building and not for private purposes. The plaintiff seems to have no activity of education or scope at Thanjavur as his interest always has been Madras Madha Group Academic Institution etc., while he was the Trustee of the Sami Arul Educational Trust. When the building commenced in "A" schedule property, the plaintiff was functioning in the capacity of Trustee for the hostel building for college. In the capacity of Managing Trustee of Sami Arul Educational Trust, he applied to Vallam Panchayat, submitting the plan specifically admitting therein that it is a Trust property and seeking permission to construct the building for the College, specially indicating his capacity as the Trustee of the College and not in his individual capacity. After putting up the building, he handed over the approved plan, to enable the Trust to further construct ground floor and first floor. The contention of the plaintiff that defendant is now giving pin-prick to the plaintiff and that he is sending frivolous communications and also setting up obstacles are false and made without any basis. Only the plaintiff has cheated the defendant and induced the defendant to part with the money without conveying the property agreed. Hence, he has taken action against the plaintiff under law. Further, after the plaintiff resigned from the Board of Trust he has not handed over many of the documents, including the sale deeds of the suit properties, pretending that they are kept elsewhere and promised to give them later. He also promised that the documents were given to his lawyer in connection with the suit filed against him. He has also not delivered the cheque book with leaves. On the other hand, he has misused money, with influence with bankers and took away the Trust money from Trust account to private bank account unjustly. He has no right to do so. Further, he created imaginary debt alleged to be due by the Trust, to his own kith and kin and friends and drew cheques from the trust account of the Dena Bank and apportioned it to himself. The defendant has questioned the plaintiff for breach of Trust committed by him and to circumvent the legal action contemplated by the defendant, the plaintiff has hurriedly rushed to this Court to file the suit with false allegations.
13. The defendant further submits that there is no cause of action for the suit. The cause of action alleged in the plaint is imaginary, since the defendant leased the property to Vivekananda trust in respect of "B" schedule and Vivekananda Trust arranged to put up construction for teacher training. The defendant has not trespassed on the item 1 and 2 and the suit property as alleged in the plaint. The structure put up by the plaintiff in "A" schedule is in continuation of the Trust after obtaining the building license for the construction of the said building. The allegations in the police complaint are denied. No instruction was given to the Police. On the other hand, this defendant has complained to the police against the plaintiff's cheating and breach of contract. Nothing happened on 12.02.2007. This defendant is in possession of the suit property of Sami Arul Educational Trust. The plaintiff has not chosen to add the Trust as party. The suit is bad for non-joinder of necessary party. The suit has not been properly valued and proper Court fee has not been paid. The minimum value of one square feet is Rs.200/-. The market value of the suit property is Rs.20,00,000/-. The plaintiff is not entitled to claim any relief. The suit lacks bonafideness. The plaintiff is not entitled to any declaration of "A" schedule or delivery of possession or for injunction in respect of "B" schedule property. The suit is devoid of merits and it is an abuse of process of Court. Therefore, the defendant prayed to dismiss the suit.
14. After considering the averments of the plaint and written statements, the trial Court had framed five issues, viz., "(i) Whether the plaintiff is entitled to the relief of declaration with regard to "A" Schedule property?
(ii) Whether the plaintiff is entitled to the relief of recovery of possession consequently?
(iii) Whether the plaintiff is entitled to the relief of injunction with regard to "A" schedule property as prayed for?
(iv) Whether the plaintiff is entitled to the relief of injunction with regard to "B" schedule property as prayed for?
(v) To what other reliefs the plaintiff is entitled?"
15. On the side of the plaintiff, three witnesses were examined viz., P.W.1-Mr.S.Peter, P.W.2-Mr.Albert and P.W.3 - Mrs.Kasthuri. 20 documents were marked as Exs.A1 to A20, viz., Ex.A1-sale deed dated 05.11.2004, Ex.A2-sale deed dated 06.07.2005, Ex.A3-patta transfer order dated 24.05.2006, Ex.A4-patta transfer order dated 31.05.2006, Ex.A5- complaint with acknowledgment dated 14.02.2007, Ex.A6-office copy of Advocate's Notie dated 08.04.2006, Ex.A7-reply notice dated 03.05.2006, Ex.A8-Balance sheet as on 31.03.2005, dated 29.07.2005, Ex.A9-First Information Report dated 30.03.2007, Ex.A10-2005-2006 Income Tax Return, Ex.A11-2006-2007 Income Tax Return, Ex.A12-advance receipt dated 28.07.2005, Exs.A13 to A15 to xerox copy of lease deeds dated 12.01.2007, 12.01.2007 and 09.02.2007, Ex.A16-receipt dated 05.11.2004, Ex.A17-Income Tax Form No.3A dated 12.11.2004, Ex.A18-xerox copy of Tax Calculation Sheet dated 28.11.2006, Ex.A19-xerox copy of receipts and payments for the year ended 31.03.2006 dated 06.10.2006 and Ex.A20-xerox copy of the defendant's evidence in O.S.No.9 of 2005, dated 07.07.2011.
16. On the side of the defendant, Mr.Dhanabal was examined as D.W.1 and 23 documents were marked as Exs.B1 to B23, viz., Exs.B1 to B3-Xerox copy of proceedings of the Board Meeting dated 15.09.2004, 25.09.2004 and 09.12.2004, Ex.B4-25th resolution in Minutes Book dated 10.04.2002, Ex.B5- ledger for the period from 2000 to 2003, Exs.B6 to B8-Punjab National Bank Cheque books, Ex.B9-sketch for Sami Arul College dated 25.04.2005, Exs.B10 to B12-Encumbrance Certificates dated 25.04.2005, 16.05.2006 and 15.05.2006, Ex.B18-xerox copy of proceedings of Board Meeting dated 03.09.2005, 12.09.2005 and 15.09.2005, Ex.B16-vouchers of Sami Arul College from 01.07.2005 to 29.07.2005, Ex.B17-Office copy of Advocate's Notice dated 30.05.2006, Ex.B18-ledger for the period from 01.10.2004 to 31.03.2005, Ex.B19-ledger for the period from 2005-2006, Ex.B20-lease deed dated 12.01.2007, Ex.B21-Dena Bank cheque bearing No.2279851 dated 04.07.2005, Ex.B22-current A/c.No.7435 and 7431 of Sami Arul Educational Trust and Sami Arul College in Dena Bank dated 26.11.2004, Ex.B23-True copy of Dena Bank ledger extract of Sami Arul Arts and Science College from 01.01.2001 to 31.12.2004.
17. P.W.1 had adduced evidence that he has enjoyed the suit schedule mentioned property. The said property had been purchased from two different persons under two different registered sale deeds dated 05.11.2004 and 06.07.2005 respectively. Subsequently, all the records pertaining to the properties had been mentioned in his name. P.W.1 further stated that he was the Managing Trustee of Sami Arul Trust and he had been elected as a Trustee on 03.09.2005. Thereafter, he had resigned the said post. At the time of his resignation, there was a loan amount of Rs.99,82,000/-. He further adduced evidence that when the property belonging to the Trust had been handed over to the defendant herein, the defendant had agreed that the said amount will be remitted by him as Trustee of the Trust by a firm resolution. The suit schedule mentioned property personally belongs to him and as such, the Sami Arul Educational Trust is in no way connected with the schedule mentioned property over the "A" Schedule mentioned property which is a small building thereon.
18. P.W.1 the plaintiff had further adduced evidence that he is permanently residing at Chennai and in order to administer the College of the Trust, he was habitually going to Thanjavur. The defendant took on the charge of the Educational Trust and he had created trouble towards him and inherited his property. The plaintiff further adduced evidence that he is running Madha College Institutions which is consisting of Madha Medical College Hospital, Madha Jindal Medical College, Madha Nursing College, Madha Teachers Training School, Madha Matriculation School, Madha Arts College and Engineering College successfully. The same was not at all appreciated by the defendant due to animosity. Under the circumstances, he is unable to go to Thanjavur regularly and his relative was taking care of his property situated at Thanjavur. Under the circumstances, on 12.02.2007, he visited his property when he noticed that the defendant had trespassed his "A" schedule property and put a building. Immediately, he approached the Administrative Office of the Trust and verified with them and they had informed that on the arrangements of the defendant, the building had been constructed. Immediately, he had levelled a complaint before the Vallam Police Station, wherein, the Police Officials had instructed the defendants not to construct any building further on the first and second respondent's portion of the "A" schedule mentioned property of the said suit. P.W.1 further stated that the defendant had trespassed into the property with the help of his men, local influence and had flaunted the police instructions. Hence, the said suit has been filed for declaration that he is the owner of the property and to deliver the vacant possession to him. Further, the defendant has no right with the "B" schedule property. Hence, a permanent injunction is imperative for restraining the defendant. The allegation of the defendant that the suit property had been purchased for the Trust is not correct. Further, as per the balance sheet and income tax declaration for the year 2004-2005, 2005-2006 clearly proves that he had purchased the said property from the funds of the Institutions at Chennai. On behalf of the Trust, the income tax declaration had been submitted, wherein the "A" Schedule and "B" schedule mentioned property had not been mentioned, which clearly proves that the property had not been purchased for the Trust. The stamp duty had been paid as per the guidelines. Further, as per the Memorandum of Understanding, the defendant and himself had agreed that the "A" and "B" schedule property is belonging to him.
19. P.W.1 further stated that the learned Advocate Commissioner had inspected the said property and submitted his report which clearly reveals that the defendant's statement is a falsehood and that buildings had been raised over the property. Further, the defendant had not objected to the Advocate Commissioner's Report. P.W.1 further stated that he had left the Trust in the year 2005 but the defendant had filed a lease agreement dated 12.01.2007 which had been created by the defendant. On 15.09.2004, there was a meeting conducted by the Trustees, wherein a resolution was passed stating that the Trustee purchasing the property i.e., one Gunasekaran has to register the document pertaining to the property from one Thirugnanam, but specifically had not mentioned Survey number extension. In the said resolution, the "A" schedule property had not been assigned besides all the members of the Trust have not signed.
20. P.W.1 further stated that "A" and "B" schedule property had been purchased under the sale deed on 05.11.2004, but on 12.09.2005, a meeting was conducted, wherein an advance of a sum of Rs.40,00,000/- had been given for purchasing "A" and "B" schedule mentioned property, the same as demanded by the defendant is not true. Since the property sale deed had been registered on 05.11.2004 and as such, the advance amount paid on 12.09.2005, was not acceptable. Likewise, on 01.04.2005 for purchasing "B" schedule mentioned property, a sum of Rs.30,00,000/- was paid to one Shanthi, the same was recorded on the register of the Trust, which is also falsehood. Further, on 05.11.2004 and on 06.07.2005, the "A" and "B" schedule property had been purchased, but the defendant had shown a record stating that an advance amount paid on 12.09.2005 and on 01.04.2005 are also false. The defendant had filed a case before the Chennai Chief Metropolitan Magistrate's Court, on the basis of the said complaint, the Central Crime Branch had registered a case on 30.03.2007 under a crime No.149/2007, for the alleged offence under Sections 406 and 420 of IPC. After an enquiry and on the statement of the defendant, the Central Crime Branch had given a finding that "A" and "B" Schedule properties are belongs to him, consequently, the complaint has been closed.
21. P.W.1 had further adduced evidence that on 04.07.2005, a sum of Rs.1,00,000/- was paid to the vendor, viz., Shanthi for purchasing "B" Schedule mentioned property. The same was noted in the Accounts Register for the year 2005-2006. Further, a sum of Rs.10,00,000/- had been paid towards additional advance for purchasing the said property for the Sami Arul Trust. Further, on 01.10.2004 to 31.03.2005, a sum of Rs.30,00,000/- was paid for the Charity Institution. The payment particulars have been properly calculated and shown as expenditure. The plaintiff had returned the money by way of cheque drawn in favour of the Trust and drawn on Dena Bank for a sum of Rs.40,00,000/-. The same was noted in the ledger of the year 2005-2006. The defendant had purchased "B" schedule property for the Sami Arul Trust, the same was proved through the Account Register. However, the plaintiff stated that he had purchased the "B" schedule property from its own funds. The plaintiff had purchased the said property after obtaining a loan from the Trust. Subsequently, the said amount was remitted to the Trust by way of cheque.
22. After recording the evidence of both parties and on perusing the document marked by them, the trial Court had dismissed the said suit. Against the dismissal of the suit, the plaintiff had filed an appeal suit before the Principal District Court, Thanjavur. The learned District Judge after hearing the arguments from both sides learned counsels and on perusing the appeal grounds and on scrutinizing the trial Court Judgment, allowed the appeal after framing five issues. Consequently, the decree in the suit is in favour of the plaintiff. Against the decree and judgment passed in the appeal suit, the second appeal has been filed by the defendant.
23. The highly competent counsel Mr.K.S.Sankar Murali appearing for the appellant submits that the first appellate Court has committed a great injustice to interpret the sale deeds Ex.A1 and Ex.A2 in gross violation of Section 92 of the Indian Evidence Act. The first appellate Court has committed an uncondonable mistake by appreciating the documentary evidences against the golden rule of construction of documents. The first appellate Court has also failed in its duty to appreciate the oral evidence of the parties. The testimony of P.W.3, who deposed evidence against Ex.A1 and A16 registered sale deed was interpreted befittingly by the first appellate Court to suit its convenience to decree the suit in favour of the respondent. The first appellate Court has held that Ex.A1 sale deed was purchased by the respondent in his individual capacity. The finding of the first appellate Court that the adjective viz., the Managing Trustee Sami Arul Educational Trust mentioned in the sale deed does not dis-entitle him to claim title to the A Schedule suit properties is palpably wrong. Ex.A1 is a registered sale deed No.2136/2004, dated 05.11.2004. In Ex.A1, the vendee's name has been categorically mentioned as the Managing Trustee Sami Arul Educational Trust. The respondent has also signed all the pages in Ex.A1 as Managing Trustee of Sami Arul Educational Trust. The non-judicial stamp papers numbering 9 were purchased only in the name of the respondent as Managing Trustee, Sami Arul Educational Trust, Pillaiyarpatti. Admittedly, the respondent is running educational institutions at Chennai under the name and style of Madha Group of Academic Institutions. The respondent is a resident of Chennai. When the respondent was inducted into the Sami Arul Educational Trust as Trustee and appointed as Managing Trustee a resolution was passed on 25.09.2004. The said resolution is marked as Ex.B2. The suit A Schedule properties were originally owned by one Mr.Thirugnanam. In Ex.B2, and under the resolution No.4, it has been clearly mentioned that Mr.Gunaseelan, the then Managing Trustee of Sami Arul Educational Trust has to arrange to transfer and register the suit A Schedule properties from Thirugnanam in favour of the Trust. In Ex.B2, the respondent is one among the signatories. Pursuant to the said resolution, the then owner Thirugnanam has executed a power of attorney in favour of Mrs.Kasthuri wife of the then Managing Trustee Mr.Gunaseelan and she in turn executed Ex.A1 sale deed in favour of the respondent as Managing Trustee of the Sami Arul Educational Trust. Ex.B23 is the ledger extract of Sami Arul Arts and Science College, wherein the Advance amount of Rs.10,00,000/- paid to the said vendor K.S.Thirugnanam vide Dena Bank cheque No.2279851 dated 04.07.2005 was duly mentioned.
24. The highly competent counsel appearing for the appellant further submits that in the minutes of the meeting held on 12.09.2005 which was produced as Ex.B14, the respondent and his family members received Dena Bank cheques for a sum of Rs.99,80,000/- and the said cheque were duly presented and honoured. All the above cumulative facts unmistakably and vividly established the insurmountable fact that the suit A schedule properties were purchased by the Trust from and out of the Trust funds and they were not self acquired properties of the respondent as alleged. But, the first appellate Court in a most casual and cavalier fashion misread the aforesaid documentary evidence and came to a conclusion erroneously by wrongly appreciating the same. The highly competent counsel further submits that the suit "A" schedule properties were purchased to house college Hostel. The Building Plan was submitted for approval and was duly approved by the Executive Officer, Vallam Special Grade Town Panchayat. In the said plan, the respondent signed as Chairman Sami Arul Arts and Science College Vallam which is a unit of Sami Arul Educational Trust. The respondent as P.W.1 admitted in his cross examination categorically that he has signed the building plan as Chairman of the Sami Arul College and to house the Ladies Hostel in the suit A schedule properties. The said building plan was submitted for approval. Had the Suit A Schedule properties were the self acquired properties of the respondent, he ought not to have signed and submitted the building plan for approval as Chairman of Sami Arul Arts and Science College. The candid admission of the respondent has not been considered by the first appellate Court, but it erroneously overruled the seasoned and reasoned decree passed by the Court in the first instance.
25. The highly competent counsel appearing for the appellant further submits that B schedule property was sold by Mrs.Santhi wife of Mr.K.S.Thirugnanam in Ex.A2 also the vendor's name is shown as Chairman Sami Arul College. The Suit B schedule property was leased out by the appellant vide a registered lease deed No.67/2007, dated 12.01.2007 EEX 3203 in favour of Swami Vivekananda Educational College to run teacher training institute in the suit B schedule property. The suit B schedule property was purchased from and out of Sami Arul Educational Trust funds. The statement of accounts which were produced as Ex.B5, Ex.B18 and Ex.B19 disclosed the sale consideration payments made to the vendors Mrs.T.Santhi. Therefore, the respondent cannot lay any claim in respect of suit B Schedule property that it was his self acquired property. The respondent has produced Ex.A10 and Ex.A11 Income Tax returns Ex.A10 is a revised Income Tax Return filed to suit the convenience of the respondent. The said Income Tax Returns are self serving documents and they cannot confer any title in favour of the respondent in respect of the suit properties. The finding of the first appellate Court that the Managing Trustee of the appellant Trust Mr.Yadav has not been examined as a witness is fatal and adverse inference can be drawn against him is palpably wrong. The respondent is the plaintiff before the Court of the first instance. He has filed a suit for declaration of title and recovery of possession in respect of the suit A schedule properties and permanent injunction in respect of the suit B Schedule property. The College Principal Mr.Dhanabalan was examined as D.W.1 and he deposed evidence on behalf of the appellant Trust. As the plaintiff, the respondent has to prove his case on his own strength and he cannot abandon his right and fall back upon the case of the appellant. A mere non-examination of the appellant's Managing Trustee is not fatal as alleged by the respondent. The finding of the first appellate Court is that the Trust Board resolutions and defendant's statement of accounts had not been produced by the competent witness. But when especially the respondent as P.W.1 has admitted his signature in the minutes of the resolution and accepted the statement of accounts, the oral evidence of the Managing Trustee of the appellant Trust is not required and no adverse inference can be drawn against him.
26. The highly competent counsel appearing for the appellant further submits that the appellant has categorically denied the title of the respondent in respect of the suit B schedule property. In spite of the appellant's specific denial of the respondent's title to the suit B schedule property, he has not chosen to amend the plaint for declaration of his title in respect of B schedule property also. The respondent was a Managing Trustee of the appellant Trust till 15.09.2005. As a Trustee undoubtedly, he holds a fiduciary position. The respondent was removed from the trusteeship from 15.09.2005, as he voluntarily resigned from the Trusteeship. Even if the respondent is deemed to be in possession and enjoyment of the suit B schedule property his possession would still be a possession of Trust as he stood in fiduciary capacity as a defacto trustee. The respondent has produced Exs.B3 and A4 / order passed by the Deputy Tahsildar, for the name transfer, but no patta was produced. Patta is not a conclusive proof of title. The respondent has not at all proved his alleged possession in respect of suit B schedule property. The respondent has alleged that the cause of action arose on 12.02.2007 in his suit for declaration of title and recovery of possession in respect of the suit A schedule property and injunction against the suit B schedule property. His alleged title to the suit properties stems out from the date of purchase i.e., on 05.11.2004 and 06.07.2005. The same has not been mentioned in cause of action paragraph. For want of non disclosure of cause of action, the suit ought to have been rejected. But, the first appellate Court erroneously decreed the suit. The substantial questions of law arising in this Second Appeal are as follows:-
(i) What is the scope of prohibitory injunction relating to suit B schedule property?
(ii) Whether on facts the respondent ought to have filed a suit for declaration of title in respect of the B schedule property?
(iii) Whether oral evidences belittle the documentary evidences against the spirit of Section 92 of Indian Evidence Act?
(iv) Whether the respondent who stood in fiduciary capacity as a defacto trustee can maintain a suit for injunction in respect of the B Schedule property?
(v) Whether the examination of Managing Trustee of the appellant Trust is required to disprove the respondent's / plaintiff's case?
(vi) Whether the finding of the first appellate Court in reversing the judgment and decree of the Court of the first instance without assigning reasons for its reversion is legally sustainable?
(vii) Whether the plaint is liable to be rejected for non disclosure of cause of action?
(viii) Whether an adjective can be used by the respondent / plaintiff viz., Managing Trustee of appellant Trust to purchase the property for his personal benefits?"
27. The highly competent senior counsel Mr.R.Muthukumarasamy, appearing for the respondent submits that the appellate Court had rightly allowed the appeal. Further, the sale deed dated 05.11.2004 and 06.07.2005 is in the name of the plaintiff. At the time of purchasing the said property, he was the Managing Trustee of the Sami Arul Educational Trust, wherein the property had not been purchased on behalf of the Trust, but the property had been purchased in the name of the plaintiff. The highly competent senior counsel has also filed a written submissions on behalf of the respondent, which are reads as follows:-
(i) The respondent is the plaintiff in the trial Court. The appellant is defendant. The respondent as the plaintiff filed O.S.No.290 of 2010, for declaration of title and possession in respect of "A" schedule property and for relief of permanent injunction restraining the Appellant (Defendant) from interfering with the possession of the respondent / plaintiff in respect of "B" schedule property. The case of the respondent / plaintiff is that he had purchased the "A" schedule property on 05.11.2004 (Ex.A1) in his individual capacity. It is also the case of the respondent / plaintiff that he purchased the "B" schedule property under sale deed 06.07.2005 (Ex.A2), also in his individual capacity. At the time of purchase, the respondent / plaintiff was the Managing Trustee of Sami Arul Educational Trust. The payment of the consideration was made by the respondent /plaintiff and the receipt of the same by the Vendor in Ex.A16 also reveals that the payment was made by the respondent / plaintiff individually. After the purchase, the patta, in respect of "A" and "B" schedules, were transferred in the name of the respondent / plaintiff in his individual capacity. The Income Tax Returns of the respondent / plaintiff in Exhibit also reveals that the purpose of the parties are disposed in the individual accounts of the respondent / plaintiff. In September 2005, the respondent / plaintiff resigned from the position of the Managing Trustee of Sami Arul Educational Trust and the appellant / defendant became the Managing Trustee.
(ii) The appellant / defendant wrongfully claimed the "A" and "B"
schedule properties belonged to Sami Arul Educational Trust and put up constructions in the "A" schedule property and also tried to take over the possession of the "B" schedule property. It is in these circumstances, that the respondent / plaintiff filed the suit in O.S.No.290 of 2010 for the relief above mentioned. The appellant / defendant resisted the suit contending that the suit "A" and "B" properties were purchased by Sami Arul Educational Trust and that the purchaser was only the Trust. The trial Court after framing necessary issues, dismissed the suit. Aggrieved by the said judgment and decree, the respondent / plaintiff has filed A.S.No.70 of 2012 before the Principal District court, Thanjavur. The lower appellate Court after a detailed consideration allowed the said appeal through the judgment and decree dated 29.04.2014. It is against the judgment and decree that the above Second Appeal has been filed.
(iii) The principle issue involved in the proceedings before the Courts below and in the above Second Appeal is as to whether the "A" and "B" Schedule properties were purchased by the respondent / plaintiff or by the respondent / plaintiff on behalf of the Trust, viz., Sami Arul Educational Trust. The lower appellate Court has elaborately considered the above issue and has come to the conclusion that the suit "A" and "B" schedule properties were purchased by the respondent / plaintiff as an individual and that the Sami Arul Educational Trust was not the purchaser. While coming to the said conclusion, the lower appellate court has analyzed and considered the various documents filed in the suit and there appears to be no error in the said judgment. It would be seen that "A" schedule property has been purchased under Ex.A1 and "B" schedule property had been purchased under Ex.A2. In Ex.A1, the purchaser is the respondent / plaintiff and he has been described as son of Soosaiya and Managing Trustee of Sami Arul Educational Trust. The description of the respondent / plaintiff is sought to be taken advantage by the appellant /defendant that the purchaser is only the Trust. However, it would be seen that Ex.A1 reveals only the respondent / plaintiff as the purchaser and the description or adjective relating to the respondent / plaintiff cannot be construed to mean that the Trust is the purchaser. The conclusion is forfeited by the fact that the consideration was passed by the respondent / plaintiff and received as such by the vendor. It is the respondent / plaintiff who has signed the documents while accepting the registration in his individual capacity. The patta in respect of the property has been transferred in the name of the respondent immediately, after the purchase.
(iv) The Income Tax returns reveals that the purchase of the property has been indicated in the personal accounts of the respondent / plaintiff. Original documents are produced only by the respondent / plaintiff before the Court below. That apart, Ex.A12 which evidences the transfer of Management of the College reveals that about 10 acres of land belonging to the Trust has come to the hands of new management which does not include the "A" and "B" schedule property. All these documents evidencing the above facts have been elaborately considered by the appellate Court to come to the conclusion that the "A" schedule properties have been purchased only by the respondent / plaintiff and not by the Trust. The said conclusions are based on the appreciation of various documents and evidence which does not call for any interference. Therefore, there is no question of law much less substantial question of law involved in the Second Appeal to interfere with the said conclusion and hence, the Second Appeal deserves to be dismissed.
(v) One another point which has been put forward is that no relief of Declaration is sought in respect of "B" schedule property. As stated already, there is some adjectives used in Ex.A1 relating to A schedule property. There is absolutely none in respect of "B" Schedule property. Hence, there is absolutely no cloud of title in respect of "B" schedule property and hence, as held by the Hon'ble Apex Court in (2008) 4 SCC 594 at para 21, the suit for bare injunction in respect of "B" schedule property is perfectly valid. Further, since the matter involved is simple and straight, forward, viz., whether the purchase of the property is by the respondent / plaintiff in his individual capacity or on behalf of the Trust, the issue regarding the title can be decided even in a suit for bare injunction. In these circumstances, the mere fact that the relief of declaration is not sought for in respect of "B" schedule property would not render the suit filed by the respondent / plaintiff bad in law. In the light of the above facts and circumstances, there is no scope for interference with the well considered judgment of the lower appellate Court. There are no substantial questions of law involved and hence, the highly competent senior counsel entreats the Court do dismiss the above second appeal.
28. From the above discussions, this Court is of the view that:-
(i) The appellant herein had levelled a complaint before the Chief Metropolitan Magistrate, Chennai and on the said complaint, the Central Crime Branch had registered a case in Crime No.149 of 2007, dated 30.03.2007, for the alleged offence under Sections 406 and 420 of IPC, wherein the defendant had given his own statement and the same was recorded by the Central Crime Branch and closed the said complaint since the respondent herein had not utilized the Sami Arul Trust Funds. This decision given by the Central Crime Branch is part and parcel of this case. As such, the appellant herein has no locus standi to claim any civil rights or to interfere with the possession of the suit mentioned schedule property.
(ii) The sale deeds dated 05.11.2004 and 06.07.2005 have not specifically revealed that the subject matter of the lands have been purchased on behalf of Sami Arul Trust by the plaintiff / respondent herein.
Therefore, the sale deeds are validated since the registered sale deeds are standing in the name of the plaintiff / respondent herein. As such, the plaintiff / respondent is entitled to enjoy the suit schedule mentioned property without any third party interference or the defendant / appellant and his men.
29. On considering the facts and circumstances of the case, the grounds raised by the learned counsel for Mr.K.S.Sankar Murali and the arguments advanced by the learned senior counsel Mr.R.Muthukumarasamy and on perusing the typed-set of papers and on scrutinizing the judgments of the Courts below and this Court's views listed above as (i) and (ii), the above Second Appeal is dismissed. Consequently, the judgment and decree made in A.S.No.70 of 2012, on the file of the Principal District Judge, Thanjavur, 29.04.2014 reversing the judgment and decree made in O.S.No.290 of 2010, on the file of the Principal Subordinate Judge, Thanjavur, dated 28.08.2012 is confirmed. The parties shall bear their individual costs.
To
1.The Principal District Judge, Thanjavur.
2.The Principal Subordinate Judge, Thanjavur.