Madras High Court
R.Marimuthu Chettiar vs G.Venkatesan @ Valathi on 29 March, 2012
Author: T. Raja
Bench: T. Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.3.2012
CORAM:
THE HONOURABLE MR.JUSTICE T. RAJA
Second Appeal No.200 of 2007
and
M.P.No.2/2008
1. R.Marimuthu Chettiar
2. P.K.Arunachalam
3. A.Jagadeesan
4. S.Gnanasekaran .. Appellants
-Vs-
1. G.Venkatesan @ Valathi
2. M.Jeyaraman
3. M.Murugesan
4. A.Kandasamy
5. R.Lakshmi .. Respondents
Second appeal filed against the judgment and Decree dated 8.9.2005 passed in A.S.No.13 of 2005 on the file of learned Subordinate Judge, Mettur confirming the judgment and Decree dated 30.12.2004 passed by the learned District Munsif-cum-Judicial Magistrate, Omalur in O.S.No.574 of 1996.
For appellants : Mr.R.Thirugnanam
for Mr.S.S.Annadorai
For respondents : No appearance.
JUDGMENT
This second appeal has been brought by the plaintiffs 1, 2, 4 and 5/appellants herein challenging the judgment and decree passed by both the Courts below.
2.A brief fact leading to the filing of the second appeal is given as under:-
The first plaintiff/appellant is a President of Ayiravaishyar Sangam, Chinnappampatti, Omalur Taluk, Salem District. The plaintiffs 1, 2, 4 and 5, except plaintiff No.3, having been elected as office bearers of their community viz. Ayiravaishyar community as 'Settumai' of their village, have originally filed a suit praying for decree for declaration and permanent injunction in favour of them by declaring that the suit property is belonging to Arulmighu Subramania Samy Koil alias Sri Kandasamy Bajanai Madam of Chinnappampatt village, Omalur Taluk and also to restrain the defendants from in any way alienating or encumbering the suit property and also to award costs of the suit to the plaintiffs payable by the defendants 1 to 4.
3.It has been mentioned briefly by the plaintiffs/appellants herein that the suit property in S.No.9/1 measuring 0.31.5 Hectares (78 cents) is absolutely belonging to Arulmighu Subramania Samy Koil alias Sri Kandasamy Bajanai Madam of Chinnappampatt village, Omalur Taluk and the temple being an ancient one, has been in existence for the past more than 200 years, which is belonging to Ariyavaishiyar community and they formed into Sangam and elected plaintiffs 1 to 5 as their office bearers and they are called as 'Settumai' of their community in the village and they used to look after all the social functions and the temple and its properties by regularly performing the daily pooja and celebrating the festivals and worshipping the God Sri Subramania Swamy and all are residing in Chinnappampatt village, Omalur Taluk. As the plaintiffs 1 to 5 are office bearers, they are called as 'Settumai' of their community in the village and they used to look after all the social functions and the temple and its properties by regularly performing the daily pooja and celebrating the festivals and worshipping the God Sri Subramania Swamy. Hence they are entitled to file the suit for the abovesaid reliefs.
4.It was further stated that Ayira vaishyar community is now owning the following three items of agricultural lands:-
"1. S.No.8/2 D Extent 0.12.5 Hectares
2. S.No.11/5 Extent 0.21.5 Hectares
3. S.No.9/1 Extent 0.31.5 Hectares"
The suit property is an extent of 0.31.5 Hectares viz. 78 cents. All the agricultural lands were leased out to third parties viz. 1)Irusayee, wife of Kundu Chinnu, 2) Madashan, son of Sadayan and 3) Ranganathan of Chinnappampatt village respectively. The lease amount was collected by the plaintiffs and they used to spend the same for temple towards maintaining the temple properties and performance of daily pooja and celebrating festivals etc. The suit property was purchased out of the funds raised by Aryavaishyar community people in the year 1922 for sale consideration of Rs.150/- under registered sale deed dated 5.5.1922 and it was registered as Document No.1048 of 1922. Therefore the same was also filed along with plaint on the file of trial Court for proving that the sale effected was for the purchase of suit property bearing S.No.9/1.
5. It was pleaded, in addition to original sale deed, Ex.A2 Account book shows that the total amount of Rs.150/- was paid towards sale consideration by the temple. The accounts register of the temple also supports the case of the plaintiffs. Ex.A3, account book of the temple, shows that Govinda Chettiar has signed the temple's register in the capacity as 'Settumai'. It was further stated that Ex.A4, Account book, duly maintained by the temple was also certified by the H.R & C.E department, which also disclosed that the amount of Rs.150/- was used to purchase the suit property. That apart, Ex.A5, adangal register for Fasli 1396-1401 is a clear testimony to show that the temple has been in possession of the suit property. It is also further averred that Ex.A6 Chitta for the Fasli year 1396 paid on the suit property has shown the names of Govinda Chettiar and Chinnasamy Chettiar, instead of the name of the Temple.
6. Again it was also brought to the notice of the Court that Ex.A7, 'A' Register for S.No.9/1 is also showing the name of the temple. Moreover, Ex.A8, Kist receipt for the fasli years 1404, 1406 to 1410 are also showing the name of the suit temple. It was also submitted by the plaintiffs/appellants that with all these material evidence, when the suit was laid before the trial Court, the trial Court ignoring all these facts had dismissed the suit. It was also the case of the plaintiffs/appellants that the defendants have produced only two documents viz. Ex.B1, xerox copy of the sale deed dated 5.5.1992 and Ex.B2, adangal extract for the fasli years 1385, 1386, 1387, 1389 and 1390. It was also stated that the plaintiffs have also successfully disproved those documents by placing all reliable evidence before the trial Court. The plaintiffs have further stated that for the reason that Exs.A16 and A17 having been filed only during the enquiry before the trial Court, the trial Court has erroneously rejected those two valid documents.
7.On this basis, the learned counsel appearing for the plaintiffs/appellants would submit that when every unimpeachable and speaking documentary evidence were produced along with PW.4 Jayalakshmi, sister of D2 and D3 to disprove the case of the defendants that the suit property does not belong to the plaintiffs/appellants, the trial Court without even any acceptable reasons, has erroneously dismissed the suit. Therefore, aggrieved by such judgment and decree, when the plaintiffs have filed appeal, the first appellate Court also reiterated the very same wrong reasons and dismissed the appeal, hence the present Appeal.
8.This Court, at the time of admission of the second appeal, has framed the following substantial questions of law:-
"1. Whether the appreciation of the document marked as Ex.A2 was perverse and sustainable in law.
2. Whether the Courts below were right in rejecting the document marked as Ex.A13, an order passed by the Tahsildar conferring patta in the name of the Temple, which has become final and binding on all the parties to that proceedings."
9.With these background, the learned counsel appearing for the appellants submitted that the Courts below have committed serious and material irregularities patently against all evidence on record and failed to appreciate the case of the appellants, hence such findings may not stand to the scrutiny of this Court under Section 100 C.P.C. The learned counsel for the appellants further submitted that the appellants have discharged their burden most satisfactorily proving that the suit property in S.No.9/1 with an extent of 78 cents was purchased by using the temple's revenue of Rs.150/-, which is clearly reflected in the temple's accounts register, yet the Courts below failed to consider the case of plaintiffs/Appellants, therefore it was pleaded that the erroneous findings of the Courts below are liable to be set aside.
10.Though the matter was argued for three days, no one appeared to represent the case of the respondents. Under these circumstances, this Court was constrained to hear the learned counsel for the appellants and render judgment.
11.It is pertinent to mention the status of the parties herein. D1 is the son of Govindasamy Chettiar, D2 and D3 are grandsons of Chinnasamy Chettiar and sons of D4. It is also relevant to mention yet another factor that that the temple Arulmighu Subramania Samy Koil alias Sri Kandasamy Bajanai Madam was having several items of properties including the suit property. The devotees and people belonging to Chinnappampatti village have contributed to the welfare of the temples and from those funds, the suit property has been purchased by sale dated 5.5.1922.
12.The Tahsildar, after entertaining the application for patta, has also issued patta Ex.A.13 dated 17.5.1995 in the name of the temple, but the same was not challenged by the defendants. One another clinching evidence which the trial Court failed to consider, in my opinion is, the evidence of P.W.4 Jayalakshmi, sister of D4, who deposed that the suit property belongs to the temple for the reason that it was purchased when both Gurusamy Chettiar and Chinnasamy Chettiar as Settumai of the village. Further, on considering Exs.A4 to A12, the trial Court is having bounden duty to consider all the issues judiciously, but it has failed to do so. As a result, grave injustice has been done to the plaintiff. In fact, though this Court under Section 100 CPC is empowered a limited authority to re-appreciate and re-assess the evidence however, on the complaint made by the learned counsel for the appellant that though several vital documentary as well as the oral evidences produced before the trial Court were wrongly ignored by both the trial Court and the first appellate Court and as a result, there has been a perverse finding resulted thereof, this Court was compelled to see whether any injustice as complained, has occasioned to the parties by non-consideration of material evidence on record inasmuch as in the decision in RAMLAL AND ANOTHER VS. PHAGUA AND OTHERS [(2006) 1 SCC 168], the Hon'ble Apex Court, while considering the scope of interference with the concurrent finding of both the Courts below, has held that 'the High Court is at liberty to re-appreciate the evidence and record its own conclusion for reversing the orders passed by the lower Court'.
13.In the above decision, it is further held that it is not the number of times that a finding has been reiterated that matters. What really matters is whether the finding is a manifestly unreasonable and unjust one in the context of the evidence on record. This judgment squarely applies to the case on hand. For, in the instant case, for the reasons mentioned hereunder both the Courts below, neither the trial Court nor the first appellate Court has exercised its duty in appreciating the evidence adduced on either side.
14.Now, the only two issues involved in this case were whether Govinda Chettiar and Chinnasamy Chettiar were 'Settumai' at the time of execution of sale deed dated 5.5.1922, Ex.A.1. Whether all the material evidences namely, revenue records like, patta, adangal kist receipts and other registers maintained by the temple are showing that the temple is the owner of the suit property? When P.W.4 Tmt. Jayalakshmi, wife of Palanichamy and the granddaughter of Chinnasamy Chettiar, being Headmistress herself entered into the witness box and deposed before the trial Court that the suit property was purchased by Chinnasamy Chettiar in the capacity of 'Settumai' of the temple, but not as an individual, it is not known, why the trial Court has disbelieved such a vital evidence. In fact, P.W.4 Jayalakshmi, wife of Palanichamy and the granddaughter of Chinnasamy Chettiar, being a school teacher, herself came into the witness box before the trial Court and admitted that the suit property was purchased by her grandfather in the capacity of 'Settumai', but not as an individual and the same was evidenced on a reading of Exs.A.16 and A.17, which were found in her father's house. But curiously, the trial Court has disbelieved these two documents on the ground that they are not the public documents. Further, when the plaintiffs have filed these two documents, namely Ex.A.16 dated nil, and Ex.A.17 dated 7.7.1988, the original letters sent by Neringipettai Vyshiya Jagathguru Samasthanam to Chinnasamy Chettiar as 'Settumai' and the same are being the better documents to prove that the two person, viz., Govinda Chettiar and Chinnasamy Chettiar were serving as 'Settumai' at the relevant point of time and even though the same has been spoken and accepted by P.W.4 Jayalakshmi, wife of Palanichamy and the granddaughter of Chinnasamy Chettiar, the trial Court ought not to have omitted to consider the same in favour of the appellants/plaintiffs.
15.Moreover, in her evidence, P.W.4 Jayalakshmi, has clearly spoken that her grandfather Chinnasamy Chettiar, who was serving as 'Settumai' in the village for a long time, was taking care of the affairs of the Kandasamy temple along with Velayudha Settumai and Govinda Settumai. The said Kandasamy temple is situated at Chinnampatti. That temple is having three landed properties of which, one of the properties is the suit property. The suit property was purchased in the name of Chinnasamy Chettiar Settumai and Govinda Chettiar Settumai when Ayira Vaishiya Community offered a sum of Rs.150/- to Chinnasamy Chettiar Settumai for purchase of the land for Kandasamy temple.
16.She has further deposed in her evidence that her father also told her family members that the suit property was purchased by her grandfather Chinnasamy Chettiar, when he was serving as 'Settumai' by using a sum of Rs.150/- which was offered by Ayira Vaishiya Community to Kandasamy temple in the name of Chinnasamy Chettiar Settumai and Govinda Chettiar Settumai. Because, generally, the person who is elected as 'Settumai' used to take care of the temple property and they used to purchase the property for temple from the common fund of the temple. Even this vital oral evidence was not even accepted by the trial Court, which is ironically a compelling factor warranting interference with the concurrent findings of Courts below.
17.Yet another vital fact to be seen is that the original sale deed Ex.A1 dated 05.05.1922 under which the suit property was purchased is in the custody of the temple/fifth plaintiff, namely, Arulmighu Kandasamy Bajanai Madam @ Arulmighu Subramaniya Swamy Koil and Ayiravaishiyar Community people of Chinnappampatti Village, Omalur Taluk, Salem District. Ex.A2, the Accounts Book maintained by the temple from 1919 also shows that a sum of Rs.150/- was paid as sale consideration by the temple for purchase of the suit property. Ex.A3, the register maintained for the income and expenditure met by the temple, wherein at page No.43, it carries the signatures of Marappa Chettiar, Velautham Chettiar, Govinda Chettiar and Krishnasamy Chettiar. Ex.A4 dated 05.06.1941, one another register showing the income and expenditure of the temple, is also carrying the endorsement made by the Superintendent of HR & CE, Salem, indicating the approval for payment of Rs.150/- for purchase of the temple suit property. Ex.A5, dated 03.01.1995 adangal extract for the fasli year 1396 to 1401 for Survey No.9/1 of Pappampadi Village, and Ex.A6 dated 03.01.1995 Chitta for the fasli year 1396 for Survey No.9/1 of Pappampadi Village, clearly mentioned that the suit property is belonging to the temple only. The plaintiff has also produced a copy of 'A' Register for Survey No.9/1 of Pappampadi Village, which was marked as Ex.A7, to show that the suit property is belonging to the temple only. Further, Ex.A8 dated 28.12.1994, shows that all the kist receipts paid for the fasli year 1404, 1406 to 1410, English year 1994, for patta No.3, 1720 of Pappampadi Village have been issued in the name of Arulmighu Kandasamy Bajanai Madam, Ayira Vaishiya Sangam. Further, to strengthen the case of the plaintiff, a proceeding issued by the Omalur Tahsildar dated 17.05.1995 was marked as Ex.A13, wherein the Tahsildar, on an application filed by the fifth plaintiff praying for transfer of patta of suit property in the name of temple, after holding a detailed enquiry with Village Administrative Officer and other Villagers, came to the conclusion that the owners of the suit property is only Ayira Vaishiyar Sangam Arulmighu Kandasamy Bajanai Madam. On that basis, by removing the names of Ramasamy, son of Kuppusamy, and Muthukali chetty, son of Chinnusamy Chettiyar, issued a separate patta for Survey No.9/1 of Pappampadi Village, having an extent of 0.31.5 hectares. No one has challenged the order of Tahsildar removing the name of Ramasamymuthukalai Chetty till now. When all these material evidences, i.e., Exs.A1 to A17, clearly proved that the suit property was originally purchased by using a sum of Rs.150/- from the account of the temple and when the Govinda Chettiyar, as one of the purchasers, has also proved to have signed the sale deed, not as an individual, but as a Settumai of their community, elected only to administer the temple and its property, the Courts below have failed to consider all these material evidences. In fact, Ex.A9 dated 02.09.1992 sale deed executed by M.Venkatachalam and his two sons, namely, Mohan and Baskaran, in favour of S.V.Raja clearly shows that his land bearing Survey No.9/1 is adjacent to the temple properties, having Survey No.9/1. This Ex.A.9 another sale deed dated 2.9.1992 purchased by Mr.S.V.Raja also shows that the suit property is temple land.
18.From the reasons stated above, it is clear that the trial Court as well as the first appellate Court miserably failed to discharge their duty and wrongly ignoring all vital evidences, erroneously dismissed the suit filed by the plaintiffs/appellants herein. Unfortunately, when the first appellate Court having jurisdiction to consider the vital evidence let in by the parties is proved to have patently failed to consider the vital issues, this Court, being satisfied that both the Courts have given perverse findings is inclined to set aside the findings of both the Courts below. Accordingly, the substantial questions of law are answered in favour of the appellants. Therefore, for the reasons mentioned above and in the light of the judgment of the Apex Court in LEELA SONI AND OTHERS V. RAJESH GOYAL AND OTHERS [(2001) 7 SCC 494], wherein it is held that Section 103 of CPC empowers the High Court to determine any issue which is necessary for the disposal of the second appeal, provided the evidence on record is sufficient in any of the following two situations; (i)when that issue has not been determined both by the trial Court as well as the lower appellate Court, or, (ii) when both the trial Court as well as the appellate Court or the lower appellate Court has wrongly determined any issue on a substantial question of law, which can properly be subject matter of second appeal under Section 100 C.P.C., case of the appellant falls in the above situations, I am of the considered opinion that since both the Courts below on account of its erroneous approach failed to determine the issues and thus rendered perverse findings this Court is constrained to reverse the concurrent errors reached by ignoring all the vital oral and documentary evidences. Accordingly, the concurrent findings of the Courts below are set aside. In result, the second appeal is allowed. No Costs. Consequently, Connected M.P.No.2/2008 is closed.
29.3.2012
Index: yes/no.
Internet: yes/no
vks
Copy to:
1. Subordinate Judge, Mettur.
2. District Munsif-cum-Judicial Magistrate, Omalur.
3. The Section Officer, V.R.Section,
High Court, Madras.
T. RAJA, J.
Vk/cla
S.A.No.200 of 2007
and
M.P.No.2/2008
29.3.2012