Back
2017 Supreme(Mad) 1451
IN THE HIGH COURT OF MADRAS
M. Sundar, J.
Arulmighu Sadayappasamy Temple, rep by its Hereditary Trustee Sadayappa Gounder (deceased), Thandampalayam & others - Appellants
Versus
State of Tamil Nadu, rep by the District Collector, Erode District – Respondent
Second Appeal No.323 of 1999, in A.S.No.148 of 1997, in O.S. No.1076 of 1994,
Decided On : 24-03-2017
For the Appellant :Mr. A. Sundaravadhanan and for Ms. P.T. Ramadevi, Advocates, Ms. V.S. Usha Rani, Advocate
For the Respondent: Mr. T. Jayaramaraj, G.P. (C.S.)
Headnote:
Civil Procedure code, 1908 - Section 96 - Possession of the suit land and attempted - Convenience and clarity - Permanent injunction. - There are three appellants before me. The first appellant is Temple, represented by its Hereditary Trustee, one The second appellant is the Executive Officer of Temple - The third appellant is one For all practical purposes, the idol is the appellant. Therefore, I refer to the appellants, collectively, as said temple, for the sake of brevity, convenience and clarity - sole respondent before me is the State of Tamil Nadu, represented by the District Collector, Erode District. Therefore, for the sake of convenience and clarity, I refer to the sole respondent as State - Held, Supreme Court held that the possession of cannot be disturbed except by due process of law, but the declaratory relief cannot be granted as it cannot be set up as a plea by the plaintiff. This judgment is given by a two Judges Bench of the Honble Supreme Court. However, I notice that a larger three Judges bench of the Honble Supreme Court, in and another by legal representatives reported in had taken a different drift qua adverse possession pleaded by a plaintiff. In case, plaintiff asserted its right on the plea of adverse possession. A perusal of the Sahib case judgment also shows that case was not brought to the notice of Honble Supreme Court in case - Second Appeal allowed
M. Sundar, J.
A brief thumbnail sketch of facts, interalia giving the trajectory which the litigation has taken in reaching this Court, is necessary for better appreciation of the judgment. Therefore, I give that under the caption "Factual Matrix".
2. Factual Matrix :
(a) There are three appellants before me. The first appellant is Arulmighu Sadayappasamy Temple, represented by its Hereditary Trustee, one Sadayappa Gounder (since deceased). The second appellant is the Executive Officer of Arulmighu Sadayappasamy Temple, Kollankoil, Erode. The third appellant is one S.Karuppa Gounder (son of late K.Sadayappa Gounder). For all practical purposes, the idol is the appellant. Therefore, I refer to the appellants, collectively, as 'said temple', for the sake of brevity, convenience and clarity.
(b) The sole respondent before me is the State of Tamil Nadu, represented by the District Collector, Erode District. Therefore, for the sake of convenience and clarity, I refer to the sole respondent as 'State'.
(c) The issue pertains to land, ad-measuring 19.62 acres in all, comprised in two contiguous parcels, situate in two survey numbers. 12.68 acres comprised in S.No.692 and 6.94 acres comprised in S.No.697 constitute this 19.62 acres. The said temple itself is situate in these lands. Both S.Nos.692 and 697 are in Kollankoil Village, Erode Taluk, Erode District. (This entire 19.62 acres of land is hereinafter referred to as 'suit land', for the sake of convenience and clarity).
(d) It is the case of the said temple that the suit land was dedicated/gifted to it more than two centuries ago. It is the further case of the said temple that it is having the benefit of yield, produce and usufructs of the said land. It is also the assertive case of the said temple that the suit land belongs to the said temple.
(e) Alleging that the respondent State attempted to interfere with the possession of the suit land and attempted to put up some structures therein, the said temple filed a writ petition in this Court, being W.P.No.9841 of 1984. This writ petition was disposed of, by a learned Single Judge of this Court, in and by an order, dated 15.4.1994, inter-alia, holding that the question of title should be gone into in a civil suit. It is pertinent to note that in its order, this Court had given leave to the said temple to file a civil suit, if so advised.
(f) Pursuant to the said leave, the said temple laid a suit, being O.S.No.1076 of 1994, on the file of the District Munsif Court, Erode (then Periyar District). The suit was filed by the said temple against the State, inter-alia with prayers for declaration of title over the suit land and for a consequential permanent injunction.
(g) In the suit, 5 exhibits, Exs.A.1 to A.5, were marked on behalf of the plaintiff and two witnesses (P.W.1 and P.W.2) were examined on behalf of the plaintiff. 5 exhibits, Exs.B.1 to B.5, were marked on behalf of the defendant and one witness, D.W.1, was examined. After full contest and trial, the trial court decreed the suit in favour of the said temple. The trial court decreed the suit, primarily, on the ground that the Palm Leaf inscription (Ex.A.4), the translation of which was marked as Ex.A.5, shows that the suit land was dedicated/gifted to the said temple, by one Karuppan Gounder more than two centuries ago, somewhere in 1829. P.W.2 is an expert witness in scriptures and his evidence was also believed by the trial Court.
(h) Aggrieved, the State filed a regular first appeal, under Section 96 of the Civil Procedure code, 1908 (hereinafter referred to as "C.P.C.", for the sake of brevity). This regular first appeal is A.S.No.148 of 1997, on the file of the Sub Court, Erode. After full contest and hearing, the First Appellate Court reversed the judgment and decree of the trial court and dismissed the suit/non suited the said temple, which is the plaintiff before the trial court. The first appellate court did so, primarily, on the ground that there is no specific ple
