Sale in favour of defendant held as sham and nominal transaction.

Second Appeal is filed by the third defendant. The respondents-1 and 2 herein and one Sellamuthu (since deceased) filed the suit in representative capacity praying for declaration that the suit property belonged to Kasiviswanathasamy Temple and also for permanent injunction.

2. The case of the plaintiff is that the suit property originally belonged to Kasiviswanathasamy Temple. First plaintiff's father Appavu Padaiyachi was managing the properties as well as the temple. In order to establish a high school in Valikandapuram village, the Village Committee requested the father of the second plaintiff/second respondent herein to hand over the property to the Village Committee; Committee also promised that some other property would be purchased in name of the temple by the Committee. Therefore, on 2.6.1966, the suit property was transferred in the name of the second plaintiff. But, no property was purchased in the name of the temple, as promised; no high school was established; the high school is run in the same place where the elementary school was run. The possession of the property was not handed over either to the Village Committee or to the school. The property has been leased out by third plaintiff to Kannusamy Gounder and Narayanan. The defendants have no right or interest over the property. But they are trying to interfere with the possession of the suit property. The suit has been filed by the plaintiffs in the capacity as worshippers of the Kasiviswanathasamy Temple.

3. In the written statement filed by the defendants, it is stated that the suit property was conveyed in the name of the Chairman of the Committee, the second plaintiff on 2.6.1966. Thereafter, the second plaintiff sold the property by Sale Deed dated 26.2.1968 in favour of Tiruchirapalli District Education Officer. The entire property is now under the control of the school. The management of the school is in possession of the property. A portion of the property is used as play ground. The plaintiffs have no interest or right over the property. On 6.8.1993, the first plaintiff attempted to plough the land; that was prevented by the head master; that resulted in law and order problem. There is no truth in the case filed by the plaintiff and therefore, the suit has to be dismissed.

4. Considering the evidence adduced before the trial Court, the trial Court dismissed the suit on the ground that the property was vested in the Government Education Department and since the Education Department has not been added as a party, the suit is bad for non-joinder of parties.

5. Against the dismissal of the suit, the plaintiffs preferred an appeal before the District Court at Perambalur. The Appellate Court set aside the judgment and decree of the trial Court and decreed the suit, as prayed for. Against the decreeing of the suit, the third defendant has preferred the second appeal. Learned counsel appearing for the appellant submitted that the property has been conveyed as early as on 2.6.1966 by Ex.B.1 by Appavu Padaiyatchi who was the Manager of the temple in favour of the Chairman of the Committee. Subsequently, the Chairman of the Committee (second plaintiff) settled the property in favour of the Government Education Department by Ex.B.2 in the year 1968. From that date onwards, possession of the property was with the Education Department. The plaintiff has no right or interest or locus standi to file the suit. The counsel argued that the suit has been filed by the worshippers and not by the trustees or by the H.R.& C.E. Board. Therefore, the suit as filed is not maintainable. But the Appellate Court has held the suit is maintainable; that decision is liable to be set aside. Learned counsel also submitted that the ground on which the suit is filed is the promise that some other property would be purchased in lieu of the property which had been settled was not fulfilled. Since the possession is with the defendants from 1968, the suit cannot be filed.

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