2013 Supreme(Mad) 2325
HIGH COURT OF JUDICATURE AT MADRAS
T. RAJA, J.
Arumigu Logavinayagr Temple, rep. by its Fit Person, Madras & Others
Versus
Sankari & Others
Second Appeal Nos. 1257 of 07, 509 & 510 of 12 & MP No.1 of 2012 in SA No. 1257 of 2007
Decided on: 08-07-2013
For the Appearing Parties:N. Sathyamoorthy, A.R. Nixon, S. Parthasarathy, Senior Counsel for A.S. Narasimhan, Advocates.
Headnote:Civil Procedure Code, 1908, Section 100 - Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, Section 109- the plaintiff was claiming to be in adverse possession of the temple property on the ground that her father was in the continuous occupation and hence he has obtained the title by adverse possession-the court rejected the contention and held that she does not have a perfect title as she has lived only for four years out of 12 years which is a period of limitation-hence the second appeal was allowed and her suit for recovery of possession was dismissed.
1. In all the above three Second Appeals, challenge is made to the common judgment and decree, dated 28.03.2006, passed by the Additional District Judge, Fast Track Court-II, Chennai, in A.S. Nos.169 and 243 of 2004, confirming the judgment and decree of the V Assistant Judge, City Civil Court, Chennai, passed in O.S. No.6552 of 1992 on 05.03.2004.
While the appellant in S.A. No.1257 of 2007-Lokvinayaka Temple, Maduvankarai-Guindy, Chennai, questions the validity of the impugned judgment of the court below in confirming the decree passed by the trial court with regard to the suit land in favour of R-1/Sankari - daughter of one Sengeni Naicker, the appellants in S.A. Nos.509 and 510 of 2012 challenge the impugned verdict insofar as grant of relief in favour of Sankari/R1 alone to the exclusion of the appellants, who are also the legal heirs of late Sengeni Naicker.
Inasmuch as the appeals are interconnected and they require joint disposal on interwoven issues, they were heard together and are disposed of by this Common Judgment.
2. Sankari-R1 in both the appeals, as plaintiff, had filed O.S. No.6552 of 1992 on the file of the V Assistant City Civil Court, and the pleadings, in brief, run thus:-
In respect of the suit land measuring an extent of about 1.6 acres in Block No.6, T.S. No.23 (part) of Maduvankarai-Velachery Village, the father of the plaintiff, by continuous occupation and enjoyment, prescribed title to it by adverse possession. His title and possession was confirmed by judgment and decree, dated 30.12.1969, passed in O.S. No.3002 of 1966. The said suit was filed by the defendant-temple, appellant in S.A. No.1257 of 2007, against the father of the plaintiff and others for recovery of possession pursuant to an earlier decree in O.S. No.38/48 on the file of the City Civil Court, Chennai. After the death of the plaintiff's father Sengeni Naicker on 05.08.1985, patta standing in the name of Sengeni Naicker was transferred in the name of his only legal heir-Sankari/plaintiff from 1987. Besides, the plaintiff's right over the suit property has been recognized by various authorities, in particular, the Assistant Commissioner, Urban Land Ceiling Act, T.Nagar. When proceedings under the T.N. Urban Land Ceiling Act were initiated by the competent authority by passing orders, such action was questioned by the plaintiff by filing writ petition in W.P. No.11537/90 pending which, in WMP No.17202 of 1990, the plaintiff obtained stay of all further proceedings by the authorities concerned. Those legal proceedings set at motion by the plaintiff would go to show that the defendant-temple did not have any better title or right or interest over the suit land than the plaintiff. While so, the defendant-temple started interfering with the possession of the suit land to remove the fencing put up BY the plaintiff. In view of that, the plaintiff was constrained to file the suit seeking permanent injunction restraining the defendant/temple, its men, agents, servants and successors in office from interfering with the plaintiff's right and possession over the property in Block No.6, T.S. No.23 (Part) measuring an extent of 1.6 acres in Maduvankarai Village.
3. The temple filed a detailed written statement specifically stating that there was no cause of action for the suit and there was no threat at all as complained by the plaintiff for filing the suit and further, only with an oblique motive, the suit has been instituted against the temple, who has been in possession and enjoyment of the suit property and such fact could be seen from the issuance of patta under Ex.B1 dated 19.02.1992. The judgment and decree passed in O.S. No.38 of 1948, dated 04.04.1950, ordering delivery of possession of the suit property in favour of the temple clearly shows that the suit property belongs to the defendant/temple. In fact, the judgment-debtor, who is the grand-father of the plaintiff, did not even take any step to challenge the correctness of the sai