(Prayer in A.S.No.569 of 1999 : Appeal Suit filed under Section 96 CPC read with Order 41 Rule 1 CPC against the judgment and decree dated 31.03.1999 in O.S.No.76 of 1992 on the file of the Principal Sub Ordinate Judge, Chengalpattu.
In A.S.No.505 of 2011: Appeal Suit filed under Section 96 CPC read with Order 41 Rule 1 CPC against the judgment and decree dated 31.03.1999 in O.S.No.107 of 1994 on the file of the Principal Sub Ordinate Judge, Chengalpattu.)
Common Judgment
M. Jothiraman, J.
1. Unsuccessful defendants 2 and 3 have preferred the appeal in A.S.No.505 of 2011, aggrieved over the common decree and judgment passed in O.S.Nos.107/94. (76/92, 109/94, 111/94, 159/94, 161/94 and 209/94) dated 31.03.1999, on the file of the Principal Subordinate Judge, Chengalpattu. Unsuccessful plaintiffs 3, 4, 5, 7 to 10 have preferred this appeal in A.S.No.569/1999 aggrieved over the aforesaid common decree and judgment passed in O.S.No.76/1992.
2. Originally 7 suits were filed in the Court of District Munsif, Chengalpattu and O.S.No.76/92 was filed before this Court by the same parties arraigning themselves either as plaintiffs or defendants. Subsequently, vide order of this Court in Tr.CMP.No.4599 of 1994 dated 06.04.1994, O.S.No.665/90, 67/91, 104/92 and 443/93 were ordered to be withdrawn from the file of the District Munsif Court, Chengalpattu and transferred the same to the file of the Principal Sub Court, Chengalpattu with a direction to try all the cases jointly. Accordingly all the cases were received and renumbered as follows:
O.S.No.665/90 - O.S.No.105/94
O.S.No.104/92 - O.S.No.107/94
O.S.No.104/92 - O.S.No.109/94
O.S.No.443/93 - O.S.No.111/94
O.S.No.525/92 - O.S.No.159/94
O.S.No.61/93 - O.S.No.161/94
O.S.No.254/93 - O.S.No.209/94
Subsequently, O.S.No.105/94 was withdrawn as per order in I.A.No.448/94 dated 14.09.1994. A joint memo was filed to try all these suits along with O.S.No.76/92 jointly and the same was recorded. The evidence was recorded and documents were marked in O.S.No.107/94 as a lead case.
For the sake of convenience, the parties are referred hereinafter as per the rankings in the suit in O.S.No.107/94. For brevity, plaintiff in O.S.No.107/94 is hereinafter referred as “Plaintiff Charity” or “Charity” and the defendants in O.S.No.107/94 is referred as “Defendants”.
O.S.No.107/94
3. Brief case of the plaintiff is as follows:
3.1. The plaintiff is Arulmigu Alavandar Charities, Mahabalipuram, represented by its Executive Officer. The Suit Property in Survey No.168 of Pattipalayam Village originally had an extent of 407.16 acres. Subsequently, the said survery number was subdivided as S.No.168/1 to an extent of 56.25 cents, S.No.168/2 to an extent of 21.88 acres and S.No.163/3 to an extent of 328.71 acres. The plaintiff was issued Patta Nos.25 and 32 along with other properties. During UDR scheme, 56.25 acres in S.No.168/1 was included in Patta No.12 in the name of the plaintiff.
3.2. An extent of 21.88 acres in S.No.168/2 belonging to the plaintiff was acquired by the Government for the formation of Kovalam Mahabalipuram Road. Notification under Section 4(1) of the Land Acquisition Act was served on the plaintiff. On completion of the acquisition proceedings, the plaintiff charity received the compensation for the lands acquired from it in S.No.168/2.
3.3. S.No.168/3 was further subdivided as S.No.168/3E/1A/1A/1C/2B measuring 203.77 acres and a separated patta No.12 was issued for it. The remaining extent of 26.23 acres was included in S.No.168/3E/1A/1A/1C/2A and joint patta No.467 has been issued for it under UDR Scheme. Thus the plaintiff charity owns 230 acres in S.No.168/3 out of total extent of 328.71 acres. Then sub division of 203.77 acres was subsequent to the UDR Scheme.
3.4. The Government of Tamil Nadu has issued a notification for acquiring a part of S.No.168/3E/1A/1A/1C2 for the formation of road in the above lands for the formation of Chennai Mahabalipuram Road, and the award is yet to be passed. For the remaining area of 26.23 acres, joint patta No.467 was issued. The joint patta included 44 other pattadars besides the plaintiff’s charity. The names of defendants 1 to 3 or their family members do not find place neither in Patta Nos.27 and 467 nor in separate Patta No.12.
3.5. The plaintiff charity has been paying Kist for the above lands in Patta Nos.25, 27 and 32 and now in Patta No.12 and 467. There is a Board of Trustees appointed by HR & CE Department for the management of the plaintiff charity. After the abolition of the Board of Trustees, the Assistant Commissioner of HR&CE Department, was appointed as the Fit Person to manage the plaintiff charity along with its Executive Officer. The entire lands in the suit properties was vemba lands fit for raising casuarina trees alone. The plaintiff charity had been leasing out these lands on warram basis to the warramdars for raising casuarina.
3.6. The land leased was in the year 1985 and there was 229 Warramdars under the charity who raised casuarina trees in an area 230 acres belonging to the charity. The defendants 1 to 3 have no right, title or interest in the suit properties. They have filed O.S.No.665/90 on the file of this Court seeking the relief of declaration of title for 291.08 acres in S.No.168/3 and for permanent injunction. Thereafter, the defendants 1 to 3 in collusion with the defendants 4 and 5 have attempted to interfere with the peaceful possession and enjoyment of the suit properties by the plaintiff. Therefore, the plaintiff has filed the Suit for declaration of its title and for permanent injunction.
3.7. The defendants 1 to 3 have also moved the authorities to cancel the patta no.12 granted to the plaintiff for an extent of 203.77 acres in S.No.168/3E/1A/1A/1C/2B. Further, they had attempted with the help of 7th defendant to delete the name of the plaintiff from the patta in respect of 203.77 acres in S.No.138/3E/1A/1A/1C/2B. The land in the aforesaid survey was originally included in joint patta No.467 under the UDR Scheme. Thereafter separate patta was granted in favour of the plaintiff in 1987. The defendants 1 to 3 have not preferred any appeal to the Revenue Officials against the grant of separate patta in the plaintiff. The plaintiff has also obtained separate patta No.12. The 7th defendant has no power to cancel the patta. The defendants filed I.A.No.2109/90 in O.S.No.665/90 seeking injunction and the said I.A. was dismissed after full enquiry. The 7th defendant illegally and falsely conducted an enquiry on the application of the defendants 1 to 3. The Suit Properties belongs to the plaintiff absolutely. Hence the suit.
4. Brief case of the 1 s t defendant is as follows:
4.1. The defendant denies all the allegations contained in the plaint. The root of the title claimed by the plaintiff is false. The alleged possession of suit property by the plaintiff is denied. The property in S.No.168/3 having an extent of 86.09 acres bounded on the north by the land of the Radharamakrishnan, on the South by the rest of the land in S.No.168/3, on the East by Bay of Bengal and on the West by Mahabalipuram Road belongs exclusively to the descendants of Parthasarathy Gramani alone and no other person has any right or interest in it. This property is now included in the patta of the plaintiff without any enquiry or notice to the parties concerned. The 1st defendant as a Power Agent filed O.S.No.104/94 on the file of the District Munsif, Chengalpattu in which the plaintiffs are parties. Temporary Injunction was granted in the said suit, on the basis of which the 1st defendant has obtained a joint patta No.505 for the suit property along with the plaintiff. Since joint patta No.505 was granted by the competent authority after due enquiry, the plaintiff has no cause of action to file the suit.
4.2. The 1st defendant has filed an additional written statement wherein it has been stated that after filing of the suit, the 1st defendant and other filed a suit in O.S.No. 104/92 before the District Munsif Court, in which the plaintiff is the 1st defendant therein. The District Munsif Court, Chengalpattu granted the relief of temporary injunction restraining the defendants therein in any way interfering with the possession and enjoyment of 86.09 acres of land in S.No.168/3, Pattipulam Village. After the District Munsif Court, Chengalpattu granted temporary injunction in I.A.No.2096/92, the District Munsif, Chengalpattu has passed orders to the effect that the injunction order of the District Munsif will have an over riding effect. The present suit is filed with incorrect patta and therefore, the suit is not maintainable.
4.3. The 1st defendant has also filed another additional written statement wherein it has been stated that the correction made by the plaintiff in the plan submitted by him is done with a view to cause confusion if possible. There is no survey number between the bed of sea and the suit survey No.168/3 and long ago about 60 years back, the charity was cultivating a small stretch of land. The plaintiff charity was never in possession of land between the sea and in the suit survey number. Probably the land if any existed could have been submerged in the sea due to erosion and other natural causes.
5 . Brief case of the defendants 2 to 5 are as follows:
5. 1. The plaintiff is not the owner of the total 407.16 acres in Pattipulam Village. Th plaintiff is one among the 10 pattadars, viz., late Kumarasami Gramani, late Sundarammal, late Perumal Gramani, late Arunachala Gramani, late V.Kannu Naicken, late Rajagopal Mudali, late A.Rangasamy Gramani, late Krishna Gramani, late S.Ponnammal and late S.Arunachala Gramani. Therefore, the plaintiff is entitled to an undivided 1/11th share in S.No.168.
5.2. The land in S.No.168 was subdivided into S.No.168/A to 168/D during the year 1877.
168/A to an extent of 31 acres 71 cents.
168/B to an extent of 101 acres 23 cents
168/c to an extent of 129 acres 87 cents
168/D to an extent of 137 acres 85 cents.
5.3. The lands in S.No.168/A to 16/D has been subsequently subdivided as 168/A to 168/J as seen from the Settlement Register for the year 1991 as follows:
| S.No. | Extent of Area (in Acres) |
| 168 / A | 38.71 |
| 168/B | 101.23 |
| 168/C | 129.87 |
| 168/D | 48.34 |
| 168/E | 28.81 |
| 168/F | 19.44 |
| 168/G | 25.92 |
| 168/H | 10.89 |
| 168/I | 3.43 |
| 168/J | 0.52 |
| TOTAL | 407.16 |
5.4. It may be seen that after deducting 101 acres 23 cents comprised in S.No.168/B, remaining extent of 305 acres 93 cents comprised in S.No.168/A, 168/C, 168/D to 168/J owned by 11 Pattadars. Alavandar died as a Bramachari on 09.08.1914. From 1877 to 1914, Alavandar did not acquire any land in S.No.168 of Pattipulam Village. Actually Alavandar belonged to Nemmeli Village about 3 Kms. Away from Pattipulam Village. A few months prior to his death Alavandar wrote a Will dated 22.06.1914 bequeathing his property in favour of his cousin brother Muthukrishnan. But Patta No.27 has not been mentioned in the Will.
5.5. The properties included in the Will are the self acquired properties of Alavandar. The entire extent of 407.16 acres in S.No.168 has been divided subsequently as S.No.168/1, 168/2 and 168/3. S.No.168/1 is situated on the West of East Coast Road having an extent of 56.25 acres. S.No.168/2 comprised in East Coast Road having an extent of 21.88 acres was acquired by the Government of Tamil Nadu on 10.01.1968. The entire compensation has been paid by the Government to the plaintiff without giving notice to the other joint pattadars including the defendants 2 to 5. S.No.168/3 having an extent of 328.71 acres is on the Eastern side of the East Coast Road.
5.6. The Government of Tamil Nadu initiated Land Acquisition Proceedings in the year 1970 without giving notice to other Pattadars except the plaintiff and the plaintiff alone was paid compensation for 21.88 acres. The plaintiff is entitled to claim of 15.2 acres alone out of total area of 407.16 acres in S.No.168. Patta No.12 is a bogus one. A new Patta No.467 issued under the UDR Scheme is also not binding on the defendants 2 to 5. The defendants 2 to 5 are the legal heirs of late Ponnammal, late S.ArunachalaGramini and Kannu Naicker. All the pattadars have been paying kists for joint Patta No.27 till date. They were joint possession and enjoyment of an extent of 56.25 acres in S.No.168/1 and 291.06 acres in S.No.168/3E/1A/1A/1C along with the plaintiff.
5.7. The plaintiff, being a co-owner of 1/11th share, he cannot claim the entire suit property either by adverse possession or by ouster. The suit properties were always cultivated by the defendants 2 to 5 and other pattadars, namely the villagers of Pattipulam Village. On 20.06.1990, the plaintiff got a separate patta No.12 and the same was obtained by influencing Survey Department and obtained a separate Sub Division No.168/3E/1A/1A/2B for an extent of 203.77 acres. In fact till 20.06.1990, Joint Patta No.27 continued and kist was paid by the defendants 2 to 5 also. There are tenants under them who have executed separate lease deeds. The defendants 2 to 5 along with other pattadars filed a suit in a representative capacity as against he Alavandar charity in O.S.No.76/92 before this Court seeking for the relief of partition of 10/11th share. The documents produced by HR&CE Board and Trustee of the plaintiff are all concocted. Now the plaintiffs are claiming private title with regard to 238 acres out of 323.71 acres and such claim is dishonest and frivolous. The first defendant along with other defendants filed O.S.No.665/90 on the file of the District Munsif, Chengalpattu as plaintiffs for declaration of their title and for permanent injunction for S.No.168/3D/1E/1A/1C having an extent of 291.08 acres in Pattipulam Village.
5.8. The defendants 2 to 3 has filed a separate additional written statement wherein it has been stated that under the guise of amending the eastern boundary of the plaint schedule, the plaintiff is not entitled to introduce a new property. In the amended plan, there is some land in S.No.251 on the east coast abutting the Bay of Bengal. There is no such survey number in between the bed of the sea and the suit property. The alleged collection of waram if any was as a co-owner by representing that accounts can be looked into at the time when joint possession is converted into separate one. Moreover the alleged collection of Waram as joint owner or co-owner is only for and on behalf of the co-owners. The plaintiff is estopped to use this against the defendants 2 to 5.
5.9. The defendants 4 and 5 filed additional written statement wherein it has been stated that under the guise of amending the eastern boundary of the plaint schedule, the plaintiff is trying to bring in a new case. The plan filed along with the amended plaint is incorrect and does not reflect on the real facts. In the amended plan it has been mentioned that S.No.251 was on the east abutting the Bay of Bengal. There was no such survey number in between the bed of the sea and the suit property.
5.10. The 3rd defendant filed yet another written statement and the same was adopted by the defendants 2, 4 and 5, wherein it has been stated that Nemmeli Arulmighu Alavadar Naicker Charities at Mamallapuram is functioning, but there is no charity at all. However, Guru Pooja has been conducted annually at Nemmeli Village at Thiruvarasu Mandapam. The latest invitation was sent by the plaintiff on 01.08.1995. As per registered Will dated 22.05.1914, Alavandar has bequeathed the properties situated in several villages. There is no temple but there is a samadhi only. The Tamil Nadu HR&CE Act, 1959 confers no jurisdiction to the Board to take charge of the properties which have been acquired by Alavandar has given a specific direction to Muthukrishna Naicker son of Veeraswamy Naicker, his own brother, to take possession of all the properties and he has to carry out Dharmam and therefore, it cannot be called as endowment.
5.11. Late Alavandar did not deposit the Will before the Sub Registrar of Thiruporur and therefore, as per Section 118 of the Indian Succession Act, 1825, as well as Section 89, the Will has become void for uncertainty but Muthukrishna Naicker did not get patta relating to the schedule properties. Muthukrishna Naicker died during the year 1936, but he did not deliver possession to the so-called Trustees as per Scheme Decree.
5.12. Muthukrishna Naicker executed a Will dated 21.08.1936 in favour of his descendants. On the death of Muthukrishna Naicker, his Will has come to force and his sons N.M.Loganatha Naicker and L.M.Jayarama Naicker have become the absolute owners of all the properties owned by Alavandar. Therefore, the plaintiff has no right in the schedule mentioned properties.
5.13. As per Settlement and Re-Settlement Register, an extent of 407.16 acres in S.No.168 belonged to 11 Pattadars including the plaintiff. From 1911 to 1989, Joint Patta No.27 has not been changed. Under the UDR Scheme, the Special Tahsildar issued pattas in favour of 44 joint pattadars including the plaintiff. Under UDR Scheme, Patta No.467 has been granted in favour of 44 pattadars with regard to S.No.168/1. Patta No.32 has been issued separately to the plaintiff. Patta No.12 has been obtained by the plaintiff fraudulently and this document was a concocted document and it is not binding on the defendants 2 to 5. In fact, the plaintiff itself gave a permission to lay a road across survey no.168/3, running from West to East and the permission granted by the Executive Officer of the Plaintiff is letter dated 29.12.1988. In fact, the plaintiff has given No Objection Certificate to sell 26.23 acres in S.No.168/3E/1A/1A/1C/2A situated at the East Coast Road at Pattipulam Village in favour of Manivannan, son of Ranganatha Naicker. If at all there is any grievance, the only remedy has to be sought by the Alavandar, Muthukrishnan Naicker and his sons as well as so-called three Trutees should have applied before the Settlement Officer and not to the Revenue Officials at Chengalpattu Taluk.
6. Brief case of the 7 th defendant, which was adopted by the defendants 6 and 8, is as follows:
In S.No.168/3E/1A/1A/1C/2A and S.No.168/3E/1A/1A/1C/2B having an extent of 230 acres belong to the Alavandar Charity. S.No.168/3E/1A/1A/1C/2B is comprised in Patta No.12 in favour of Alavandar Charity. S.No.168/3E/1A/1A/1C2A is comprised in joint pattta No.467 standing in the name of Alavandar Charity and others. The defendants 1 to 3 stated that they have got right in the above said two survey numbers and requested the 7th defendant to cancel the sub divisions and the separate Patta No.12, standin g the name of the plaintiff and to restore the same to its original patta No.467.
7. The plaintiff has field a rejoinder, wherein it has been stated that the plaintiff charity is the absolute owner of the suit property, namely:
| S.No.168/1 | 56.25 cents |
| S.No.168/3E/1A/1A/1C/2B | 203.77 cents |
| S.No.168/3E/1A/1A/1C/2A | 26.23 cents |
8. It is also stated the Cowle patta granted in favour of Alavandar, subsequent dealings by Alavandar by way of mortgage, lease, sale of casuarina trees and other products, equipments, the patta issued to Alavandar by the Revenue Authorities, the schemes by the Court from time to time, declaration mode by the Court in respect of plaintiff charity as a Public Trust, taking over the administration of the properties and affairs of the charity by HR&CE Department, the payment of kist of charity, the lease of property, the auction held by the plaintiff charity from time to time, cutting casuarina trees and collecting produce from various fruit bearing trees, were never challenged so far by any suit or proceedings by the defendant or their predecessors. Patta No.12 issued to the plaintiff is in order and is in accordance with the state of things available on ground as well as the documents filed by the plaintiff before the Court. The allegations that from 1911 upto 1918, the patta No.27 was not changed is not correct. The allegations that one Ms.Latha and Mr.Rajkumar had given two cheques dated 17.06.1989 in favour of the plaintiff for Rs.29,000/- is false. The allegations that the plaintiff have given no objection certificate to sell 26.23 acres in S.No.168/3E/1A/1A/1C/2A in favour of one Manivannan is false and imaginary.
9. The defendants do not have title even for a cent or a bit of land to any of the properties and their claim is totally frivolous and without any merit. The so called Pattadars who had originally owned Survey No.168/B as per 1877 Settlement Register had long back sold their properties under various documents and there have been a chain of alienations during several decades in the past and these facts have been suppressed by the defendants.
10. The charity acquired a title to a portion of Old S.No.168/B which is confirmed by a decree of court and the total extent held by the charity as on date is 286.25 acres after excluding the area 22.23 acres acquired by the Government for the formation of Madras Mahabalipuram Road. The plaintiff charity is having absolute and exclusive title to the suit properties herein S.No.168/1 – 56.25 acres, S.No.168/3E/1A/1A/1C/2A – 26.25 acres, S.No.168/3E/1A/1A /1C/2B- 203.77 acres. Patta No.505 issued by the Tahsildar pending suit is illegal and will not create any title in favour of the defendants. The plaintiff charity has also got land in S.No.251, measuring an extent of 28.25 acres which lies on the west of Bay of Bengal and the east of the suit land.
11. Based on the above pleadings, the Court below framed the following issues:
1) Is the plaintiff entitled to the relief of declaration of title and injunction as prayed for?
2) To what relief, the plaintiff is entitled to?
O.S.No.76/92
12. Brief case of the plaintiff is as follows:
12.1. Suit for granting permission to sue for themselves and on behalf of entire body of family members of late Kumaraswamy Grami, late Sundarammal, late Perumal Gramani, late Arunachala Gramani, late Mannu Naicker, late Rajagopala Mudali, late Rangaswamy Gramani, late Krishnaswamy Gramani, late Ponnammal and late Arunachala Gramani, for partition of the schedule properties. The 1st plaintiff is representing the members of the family in-charge of late Kumarasamy Grammi, who died during the year 1920. The 2nd plaintiff is representing the family members of late Sundarammal, who died during the year 1934. The 3rd plaintiff is representing the family members of late Perumal Gramani, who died during the year 1958. The 4th plaintiff is representing the family members of Arunachala Gramani, who died during the year 1919. The 5th plaintiff is representing the family members of late Kannu Naicker, who died in 1934. The 6th plaintiff is representing the family members of late Rajagopala Mudaliar, who died during 1922. The 7th plaintiff is representing the family members of Rangaswamy Gramani, who died in 1918. The 8th plaintiff is representing the family members of Krishnaswamy Gramani, who died during 1918. The 9th plaintiff is representing the family members of Ponnammal, who died during 1920. The 10th plaintiff is representing the family members of late Arunachala Gramani, who died during the year 1922. Hence, the plaintiffs seek permission to file the suit in a representative capacity under Order 1 Rule 1 CPC.
12.2. The 11 pattadars including the 1st defendant (Plaintiff Charity in O.S.No.107/1994) originally owned an extent of 407.16 acres in S.No.1689 of 109 pattipulam village and old Patta No.27 stood in the name of all the 11 persons. The 11 pattadars as mentioned above as presenting the plaintiffs are all dead. The joint patta No.27 stood in the name of 11 persons till 20.06.1919 and was a joint patta. At that time, there was no sub divisions for the entire property of 407.15 acres which was one block. During 1877, Old S.No.168 was surveyed and subdivided as 168/A, 168/B, 168/C and 168/D having an extent of 38.71 acres, 101.23 acres, 123.87 acres and 137.35 acres respectively.
12.3. There are 13 pattadars in S.No.168/B having an extent of 101.23 acres. During the re-survey and settlement in 1911, Old S.no.168/A, 168/B, 168/C and 168/D have been resurveyed as 168 with an extent of 407.16 acres and patta was granted in favour of the plaintiff ancestors and the 1st defendant jointly. Thus the plaintiffs have established that they are entitled to an undivided share of 10/11 shares in the suit properties. The 1st defendant, being the joint pattadar, is entitled to 1/11 share. In fact, the sale deed dated 18.08.1989 deals with the portion of S.No.168 to an extent of 15 acres out of 101.85 acres, represented by Kumaraswamy Gramani’s shares. Even though the name of the 1st defendant has been included as one of the pattadars in Patta No.27 and was shown that an individual called Alavandar owned 1/11 share. In fact, Alavandar did not own even an inch of land in Pattipulam Village. No doubt, Alavandar executed a registered Will dated 22.06.1914 and he died as a Bramacharai, Bachelor Sanyasi. Under the Will, his own brother Muthukrishna Naicker owned the properties but how the Alavandar charity come into existence is yet to be known.
12.4. The plaintiffs have paid kist for Patta No.27 till date. They are in joint possession and enjoyment of the schedule properties along with the 1st defendant. The 1st defendant being the co-owner of the 1/11th share cannot claim entire properties either by adverse possession or by ouster against the other co-owners. Being co-owners, the plaintiffs are entitled to file a suit for partition. The defendant does not claim an extent of 101.23 acres in Old S.No.168/B, which has been correlated to new Survey No.168/3. The relatives of the plaintiff have sold 40.91 acres in S.No.168/B (new S.No.168/3) in favour of several persons. They have subdivided the properties. Joint Patta No.27 has been granted in favour of 44 persons. There are several sub divisions done by the survey unit attached to the Tahsildar, Chengalpattu in S.No.168 and not binding on the plaintiff. There are tenants who had executed lease deeds in favour of the plaintiffs and Casuarina trees were ripe for cutting. There were 229 Warramdars under the plaintiff who had raised the Casuarina trees in 230 acres. The 1st defendant was claiming title over the extent of 238 acres out of 328.71 acres and such claim is dishonest and it cannot claim tile for the suit properties.
12.5. The 2nd defendant along with the defendants 9 and 10 originally filed a Suit in O.S.No.665/90 on the file of the District Munsif, Chengalpattu for declaration of their title and for permanent injunction for S.No.S.No.168/38/14/16 having an extent of 291.61 acres in Pattipulam village and the suit was pending.
13. Brief case of the 1 s t defendant is as follows :
13.1. The 1st defendant has filed a Written Statement resisting the claim made by the plaintiffs. The 1st defendant denied that the plaintiffs are the legal heirs of ten persons, who said to have died in between 1919 to 1938. It is for the plaintiffs to establish that the alleged ancestors and the pattadars in Patta No.27 found in revenue records for the year 1911 were one and the same. They have not explained how they succeeded to the estate of the ten pattadars and on what basis they have filed this partition suit against the 1st defendant. The plaintiffs have no circumstance or material to prove the identity of their ancestors with the pattadars in Patta No.27 in the year 1911 and also their legal heirs. Therefore, the plaintiffs have no locus standi to file this suit in a representative capacity.
13.2. It is false to state that joint patta No.27 was in the name of 11 persons and was continued as it from the year 1911 till 20.06.1990. It is evident from Ex.B1 – list of documents attached to the statement which is a xerox copy of Survey and Settlement Register of Pattipulam Village, relating to the year 1877 that S.No.168 had been subdivided into four sub divisions as stated in the plaint and sub-division No.168/B measuring 101.23 acres alone had been registered in the name of Manicka Gramani and 12 others under joint patta No.27.
13.3. The Survey and Settlement Registers relating to Survey No.168 took place in the year 1899. It can be seen from patta No.32, which stood in the name of Alavandar, the founder of the defendant charity that Alavandar owned, possessed and enjoyed 305.92 acres out of 407.16 acres in S.No.168 as early as in 1899. The above S.No.168 was subdivided into 10 in the year 1889 or earlier and out of which, 9 sub divisions, namely A and C to J were in the name of Alavandar and Sub Division No.168/B should had been registered in the name of others. The remaining extent of 101.23 acres should have been in the area of sub division 168/B. During the survey in 1911, all the sub divisions were clubbed into one as S.No.168.
13.4. The Sale Deed dated 18.08.1889 deals with the sale of his share of 15.14 acres by Parthasarathy Gramani to Murugesan Gramani in S.No.168B measuring 101.23 acres. It is not correct to state that Kumaraswamy Gramani was the sharer of the property transferred to this document.
13.5. On 20.02.1914, Alavandar executed a registered Will by which he created a charity endowing all the lands he owned and possessed and enjoyed including Survey No.168 of Pattipulam Village and the other lands situated in the adjoining villages measuring about 1200 acres in all. He appointed his brother Muthukrishna Naicker to be the 1st Trustee of the charity after him. After some years, the administration of the charity was taken over by the HR&CE Board and subsequently by the HR&CE department under the control of the State Government. The charity, which is the absolute and exclusive owner of 56.25 acres in S.No.168/1 and 203.77 acres in Survey No.1C/2A, the first two items comprised in Patta No.12 and 3rd item comprised in Patta No.467. The plaintiffs have no right to main the suit.
13.6. The 2nd defendant has filed a written statement denying the allegations contained in the plaint except those specifically admitted. The 2nd defendant as Power Agent and for himself filed a Suit in O.S.No.104/92 on the file of the District Munsif Court, Chengalpattu in respect of S.No.168/3 for an extent of 86.09 acres. Apart from this property dealt with by the 2nd defendant’s ancestors there remains a large extent still owned and possessed by the 2nd defendant’s family.
13.7. One Viswanathan, and Subramanian colluding with other plaintiffs have indulged in this vexatious and fraudulent suit and are attempting to cause prejudice to the case put forth by the 2nd defendant in O.S.No.104/92. Many of the original pattadars have sold their interests in the suit property to strangers. The plaintiffs have no cause of action for filing this suit and the alleged cause of action are false and baseless.
14. The 3rd defendant has filed a written statement opposing the claim of the plaintiff. The 3rd defendant has been added as a party as per the order in I.A.No.411/94 dated 16.08.1994. For the branch of Sundarambal, wife of Govinda Gramani and branch of Arunachala Gramani, the legal heirs of Perumal Gramani of whom D.P.Kanakasabai estate share of Arunachala Gramani. The 2nd plaintiff R.Kuppusamy Naicker is not a person entitled to represent the family members of Sundarambal. In fact, the said Kuppusamy Naicker is a man coming a different community altogether and consequently, he cannot represent Sundarambal nor can be make any claim over the suit property. The person entitled to represent her is the 3rd defendant and his family members. The 3rd defendant is filing the written statement on behalf of all the family members and they are jointly entitled to 2/11th share in the suit property. Therefore, a preliminary decree may be passed accordingly.
15. The 4th defendant has filed a written statement denying the averments made in the plaint. The suit is filed in the representative capacity against two persons alone viz., the defendants 1 and 2. Wide publicity has been given in the village under Order 1 Rule 8 CPC. The 4th defendant comes under the branch of Arunachala Gramani, who is entitled to 1/11th share. The 4th defendant is also enjoying the property as a joint owner. The 1st defendant got the compensation for the property acquired by the Government for the formation of the road in S.No.16 without any title. The 1st defendant is liable to deposit the same in Court as to make it available for partition among the sharers. The plaintiffs have not consulted the 4th defendant and approached to get his consent to file the suit in representative capacity. The 4th defendant should also be treated as one of the plaintiffs to get a share in the suit property.
16. Based on the above pleadings, the following issues were framed by the Trial Court:
1) Are the plaintiffs are entitled to partition as prayed for ?
2) Is the suit in a representative capacity for partition maintainable?
3) Are the suit properties undivided and still held jointly?
4) Have any of the plaintiffs entitled to any share in the suit property and if so, which Branch or branches and in which property?
5) Is the title put forth by the 1st defendant is true and valid?
6) Is this suit bad in law?
7) Has the 1st defendant in any event perfected its title to any portion of the suit property by adverse possession ?
8) Are the plaintiffs entitled to any relief in the suit?
9) To what relief, the plaintiffs are entitled to?
As mentioned earlier, joint trial was conducted, evidence was recorded and document were marked in O.S.No.107/94.
17. On behalf of the plaintiff charity, PW1 was examined and Exs.A1 to A262 were marked. On behalf of the defendants, DW1 to DW9 were examined and Exs.B1 to B90 were marked.
Findings of the Trial Court
18. Originally Old S.No.168 of Pattipulam Village to a total extent of 407.16 acres subdivided into four sub-divisions in S.No.168/A, 168/B, 168/C and 168/D as per the Settlement Register for the year 1877. Cowle Patta was granted in respect of S.Nos.168/C and 168/D. S.No.168/A and 168/C was later included in Patta No.32 along with other properties owned by Alavandar. Subsequently, he was granted Cowle patta for S.No.168/D also.
19. During re-survey and settlement in 1911, Sub divisions 168A to J of Survey No.168 have been merged into one and was renumbered as Survey No.168 and the entire extent of 407.16 acres come under joint patta No.27. In Patta No.27, there were 11 pattadars and Alavandar was one among them. Subsequently, Alavandar acquired a small portion of Survey No.168/B and therefore, he become entitled to 308.45 acres. The lands owned and enjoyed by the charity, though under a joint patta as per 1911 settlement was distinctly and separately demarcate, whereas the lands in S.No.168/B was enjoyed by the remaining 10 pattadars each having separate area entitled to them.
20. The names of 13 pattadars forming part of Ex.A3 has been separately marked as Ex.A190. This document clearly shows that the right of 13 persons was confined only to S.No.168/B having an extent of 101.23 acres. The individual extent to which each pattadar was entitled has not been specified at all. Therefore, it is clear that these 13 persons had no right on any part of S.No.18/A, C and D on or before 1877 Settlement.
21. The plaintiffs in O.S.No.76/92 have not filed any document of title. They relied on the Settlement Register under Ex.A114 which has been marked as Ex.B46 and B47. In those documents, it has been stated that Joint Patta No.27 had 11 pattadars. The plaintiff in O.S.No.76/92 have not explained anywhere how they are entitled to any share in S.No.168. They claimed that they are the descendants of 13 pattadars shown in the 1877 settlement, which shows that their rights will be confined to the extent of S.No.168/B. They have not produced any document to show that in between 1877 and 1911 their predecessors in title acquired any area in S.No.168/A and C to J.
22. The 1st defendant in O.S.No.107/94 was examined as DW1. He has filed O.S.No.109/94 representing 28 others. He has also filed O.S.No.111/94. DW2, who claims to be son of one Chellammal and allegedly related to DW1, as his brother. DW2 categorically stated that DW1 was not in possession of S.No.168 and he has no right at all. DW2 has admitted that there are 43 pattadars in S.No.168 at present and all the 43 pattadars have separate possession. 12 pattadars have got individual subdivisions with individual pattas. There is overwhelming evidence to show that Alavandar Charity was in possession and enjoyment of the area claimed by it and that rival claimants.
23. The plaintiff in O.S.No.76/1992 has filed annexures showing the genealogy tree which by themselves will not constitute evidence. Even all those persons have not been impleaded. The plaintiffs have not impleaded the actual descendants and no explanation has been given. How the rights devolved on those persons have not been explained. Therefore, a suit under representative capacity is not maintainable. The Suit is also bad for non-joinder of all necessary parties. The Suit in O.S.No.107 / 94 was decreed as prayed for. O.S.No.76/92 and others suits were dismissed.
24. Aggrieved over decreeing of the suit in O.S.No.107/1994 in favour of Charity, the defendants 2 and 3 have preferred the appeal in A.S.No.505 of 2011. Aggrieved over the dismissal of the suit for partition in O.S.No.76/1992, the plaintiffs have preferred the appeal in A.S.No.569 of 1999.
25. Mr.S.R.Rajagopal, learned Senior Counsel for the appellant in A.S.No.505 of 2011 would submit that neither the Trustees nor anyone from HR& CE Board has been examined to prove the case put up by the plaintiff in O.S.No.107/1994. The Executive Officer has no jurisdiction to file the Suit and therefore, the Suit itself is not maintainable as the Charity was represented by its Executive Officer. The Court below came to a conclusion that in 1877, Alavandar was granted Cowle Patta in respect of S.No.168/A and 168/C and later included in patta No.32 along with other properties owned by him, such findings are erroneous and absolutely without any basis. Similarly, the entire extent in S.No.198/A and 168/C to J belonged to Alavandar and he was in exclusive possession and enjoyment of the same under Patta No.32 and this has not been questioned by anyone till 1990 is an observation which is erroneous and not based on any legal evidence. The Court below failed to consider the fact that after merger of all the S.Nos.168A to 168J in the year 1911 and the entire extent of 407 acres 16 cents in S.No.168, a separate joint patta No.27 was given, the question of Alavandar claiming title to any specific extent in S.No.168 does not arise. Alavandar himself did not claim title to any specific extent in S.No.168 comprised in Joint Patta No.27.
26. The learned Senior Counsel for the appellant further would submit that merely because there has been leasing out of Casuarina Melwaram, it will not amount to conferring title to the entire property because late Alavandar was only one of the Joint Pattadars and as such, a joint owner or co-owner and any action by a co-owner is for the benefit of all the joint owners when admittedly there was no partition in metes and bounds between the 11 pattadars. Section 4(1) Notification of the Land Acquisition Act, for acquisition of an extent of 22 acres in S.No.168, the plaintiff charity has been shown as the owner of the land is factually incorrect, since the notice only says “person interested”. The observation of the Court below as if Alavandar was in possession of the entire area in S.No.168A, 168C and 168D and his name did not find place in Ex.A3, since the settlement operations were almost completed earlier to publication of Ex.A3, which is based on no evidence and it is only a surmise. The Court below has misconstrued Ex.A190 and the observation that the right of 13 pattadars was confined only to S.No.168/B of an extent of 101 acres 23 cents is a finding, which is erroneous and contrary to the settlement records of the year 1911. The Court below has not properly appreciated the real scope of Cowlee patta and it cannot be disputed that a Cowlee patta is not a document of title and the owner is only the State, who is entitle to deal with the land in any manner they like. Even as per Ex.A115, it is only for 10 years i.e., from 1877 to 1887 and the title always vested with the State. No evidence has been placed by the plaintiff charity that the rights of 13 pattadars were confined to only S.No.168B and the status continued till 1911 when re-survey and re-settlement was introduced is incorrect and without any evidence.
27. The learned Senior Counsel appearing for the appellant in A.S.No.505 of 2011, to strengthen his contentions, has relied upon the judgment of this Court in Kuppusamy v. Prasanna Vinayagar Thirukovil, represented by its Executive Officer, Pudupet, [2017 SCC OnLine Mad 37978] to show that the Executive officer has to obtain permission from his higher authority to file the Suit and in the absence of the same, the Suit itself its not maintainable. And also relied upon the judgment of this Court in E.V.Mohan v. Arulmigu Sengaluneer Vinayakar and Koluraman [2018 SCC Online MAD 14001 to show that the Executive Officer does not have the authority to file the Suit without prior permission from the Commissioner of HR& CE Department.
28. Mr.S.Parthasarathy, learned Senior Counsel for the appellant in A.S.No.569/1999 would further submit that PW1 also categorically admitted that the Suit property is concerned, Alavandar has not purchased and he has claimed it only under Cowle Patta. The Court below failed to consider that when Joint Patta No.27, for S.No.168 of an extent of 407 acres and 16 cents have been given to 11 joint pattadars, each one is entitled to 1/11th undivided share in the entire extent of 407 acres 16 cents. Even though the trustees are there, none of them have entered the witness box and none from the HR& CE Board has been examined and PW1 is not competent to speak anything about the lis between the parties. The Court below failed to see that the plaintiffs in O.S.No.76 of 1992 have filed the suit only in a representative capacity, representing the legal heirs of the other 10 joint pattadars and they have not asked for any partition interse between the legal heirs of 10 joint pattadars. Since the Suit is for partition and separate possession of the 10/11th share for the benefit of all the legal heirs of 10 pattadars and Alavandar Charities is entitled to 1/11th undivided share.
29. The learned Senior Counsel appearing for the appellant in A.S.No.569 of 1999 would further submit that the findings of the Court below that the plaintiff charity is in continuous and uninterrupted possession of the suit property for more than 100 years and even if there is any defect in the title, the plaintiff charity has perfected its title by adverse possession is a finding which is based on no evidence and erroneous. The Court below failed to see that the disputes arose only for the first time in the year 1990 at the time of UDR Scheme and till then, joint patta was not disputed and joint ownership was also not disputed. The Court below failed to see that it is the case of the plaintiffs in O.S.No.76 of 1992 that the Will executed by Alavandar does not contain the suit properties and as such, the suit properties cannot be called as Trust properties particularly when late Alavandar himself had no title to the suit properties as a whole. The findings of the Court below that the Suit in O.S.No.76 of 1992 is not maintainable is erroneous, since the Suit has been rightly laid in a representative capacity after following the provisions of Order 1 Rule 8 CPC. The Court below failed to see that in the year 1956, there was no S.No.168/1, that too measuring 407 acres 16 cents and as such, the Court below ought to have rejected Ex.A150. The plaintiffs in O.S.No.76 of 1992 have also produced Kist receipts marked as Exs.B52 to B59 and B69 to B72, but the Court below has not properly considered and appreciated those documents which includes Ex.B74 to B81. The defendants have let in sufficient oral and documentary evidence to prove joint possession and erred in not properly appreciating the oral and documentary evidence let in on behalf of the plaintiffs in O.S.No.76 of 1992. The Court below failed to consider that the plaintiff charities have obtained patta No.12 and 467 by gross misrepresentation and behind the back of the plaintiffs in O.S.No.76 of 1992 only in the year 1990 and till then, they have not questioned Joint Patta No.27. The Court below has not properly appreciated the various documents produced in O.S.No.76 of 1992 and ought to have decreed the Suit in O.S.No.76/1992 as prayed for by allowing the appeal.
30. Per contra, learned counsel appearing for the respondents / plaintiff charity would submit that the charity has produced several documents even after 1911 settlement and Alavandar enjoyed full extent of land in S.No.168 separately and dealt with it and on 22.06.1914 executed a Will, creating plaintiff charity in favour, bequething all the properties owned by him in favour of the charity stipulated that patta should remain in his name only. According to the plaintiff charity, while Alavandar was alive, he enjoyed the entire extent of 308.45 acres by leasing out to various persons particularly for the Casuarina trees for fixed duration. After his death, the lands were enjoyed by the Trustees were appointed by them and thereafter, Trustees were appointed as per the Scheme Decree framed by the Court, HR&CE Department has taken administration of the lands as per the orders of the Court on the Scheme Suit. The lands owned and enjoyed by the charity, though under a joint patta as per 1911 settlement was distinctly and separately demarcate, whereas the lands in S.No.168/B was enjoyed by the remaining 10 pattadars each having separate area entitled to them and the said properties have already been disposed of by them. During 1968, the Government acquired some extent of lands in S.No.168 for the formation of East Coast Road and the plaintiff charity was shown as the owner of the land and the entire compensation was paid to the plaintiff charity. During land acquisition, S.No.168 was subdivided into 3 and the entire extent of lands in S.No.168 was subdivided into i.e., S.No.168/1 – 56.25 acres, S.No.168/2 – 21.88 acres and S.No.S.No.168/3 – 328.71 acres, while th S.No.168/1 was included and separate patta No.32 was issued, for the area in S.No.168/3 continued to be in Joint Patta No.37, subsequently it was changed as Patta No.12.
31. The learned counsel appearing for the Plaintiff Charity would further submit that the plaintiff charity is an exclusive possession and enjoyment of the above said portion of lands and it is administered by the HR & CE Department, which took control by virtue of the judgment made in Scheme Suit No.1 of 43 on the file of the District Court, Chengalpattu. Prior to that, the Trustees were appointed from time to time under a Scheme Suit O.S.No.1 of 1943 were managing the properties and affairs of the Trust. The defendants 1 to 3 instituted the Suit in O.S.No.107 of 1994 against the charity for declaration of title, representing that they are the descendants of the family mentioned, owning 291. 08 acres, filed an application for interim injunction in I.A.No.2109/90, which was dismissed and the appeal as against the said order in C.M.A.No.5/90 was also dismissed. To strengthen her contention, the learned counsel relied on the judgment in Idol of A/m. Sri Kalyana Venkataramanaswamy v. M.Palanivel and Others [2023 SCC Online Mad 8766], to show that the Executive Officer has power to administer the temple and he can sue and be sued. The power to sue is inherent at any point of time. The learned counsel for the respondent would further submit that Scheme was also modified and as per Scheme Decree, the HR &CE Board impleaded for the first time and the same has been reflected in OS.No.1/1943 under Ex.A119, 117, 118 and 124. There is no infirmity in the decree and judgment of the Court below and prays to dismiss the appeals.
32. The learned counsels appearing for the other respondents would submit that they are adopting the arguments of the learned Senior Counsel for appellants.
POINTS FOR CONSIDERATION
33. The following points for consideration arises in these appeals:
1.Whether the Suit filed by the Executive Officer in O.A.No.107/94 is maintainable ?
2.Whether the representative Suit filed by the plaintiff in O.S.No.76/1992 is maintainable or not ?
3.Whether the plaintiff charity is entitled for the relief of Declaration of Title as prayed for?
4.Whether the plaintiff in O.S.No.76/1992 is entitled for partition as prayed for?
5. To what other reliefs, the parties are entitled to?
POINT NO. 1
34. It is seen from the records, between the parties herein, there are several suits filed. For better understanding, the same has been extracted hereunder:
35. It is seen from the plaint in O.S.No.107/94, the description of the Suit Property is mentioned as follows:
| Sl.No. | Survey No. (Sub Division) | Patta | Extent |
| 1 | 168/3E/1A/1A/1C/2B | Patta No.12 (exclusive) | 203.77 Acres |
| 2 | 168/3E/1A/1A/1C/2A | Patta No.467 (joint) | 26.23 Acres |
| 3 | 168/1 | Patta No.12 (exclusive) | 56.25 Acres |
| Total | 286.25 Acres |
| Sl.No. | Survey No. (Sub Division) | Patta | Extent |
| 1 | 168/1 | 56.25 Acres | |
| 2 | 168/3E/1A/1A/1C | 291.8 Acres | |
| Total | 347.33 Acres |
38. It is pertinent to mention that Thiru Alavandar Naicker executed a Registered Will dated 22.06.1914 in Ex.B1 bequeathing all properties pertains to Nemmeli, Krishnankaranai, Pattipulam, Salavankuppan, Kadumbadi, Mahabailupuram to charity and appoints his brother’s son Muthukrishna Naicker as trustee / executor with No beneficial interest and also directs pattas to remain in his name and the same has been admitted by the defendants in their own pleadings. On 09.08.1917, Alavandar died as a Bachelor with no legal heirs. Consequently, the Will came into effect.
39. It is relevant to mention that one Ramachandra Naicker and Others filed a Suit in O.S.No.26/1914 against Muthukrishnan and Others before the District Court, Chengalpattu, which was transferred and renumbered as O.S.No.131/1916 on the file of the Sub – Court, Chengalpattu. The Suit was filed for Scheme for administration of Trust for removal of Muthukrishna Naicker from Trustee and the suit was decreed. Aggrieved over the same, Muthukrisha Naicker went on appeal in A.S.No.226/1916, wherein this Court confirmed the decree in O.S.No.13/1916 and held that Alavandar Charity is a Public Trust of permanent nature and the Will is valid and applied the Doctrine of Cypres. The Scheme framed in O.S.No.13/1916 was modified by the District Court at Chengalpattu in O.S.No.1/1943, in which HR&CE Board was impleaded as a party. The Court held that the charities should be carried out by 3 Hereditary Trustees appointed by the Board, one among them should be a lineal male descendant of Muthukrishna Naicker with further modification as and when necessary and the matter went on appeal in A.S.No.37/1945 and this Court, passed a decree and HR & CE Board took over the control of the plaintiff charity. Subsequently, in the place of Manager, an Executive Officer was appointed from 1950 onwards.
40. It is seen from records, the Will dated 22.06.1914 under Ex.B1 executed by Alavandar is not disputed by any of the defendants. They have chosen to mark the Will under Ex.B1. The Will give rise to the formation of the Trust, formed by Alavandar itself and appointed his brother’s son Muthukrishna Naicker as the sole executor to perform his charities. The Will was propounded soon after the demise of Alavandar. Based on the Will, a Suit was filed against the Trustees name by Alavandar for framing a Scheme and other reliefs as early as in the year 1914. From that time onwards, the properties bequeathed by Alavandar and the properties were administered by the Trustees appointed by the Court. Auditors were also appointed by the Court from time to time who have submitted their report into the Court. In 1949, first Manager was appointed by the HR &CE Board and thereafter, an Executive Officer was appointed to administer the affairs. During the pendency of the Scheme and after taking over of Charge by HR&CE as per the Scheme framed by the Court direction, several registers were maintained such as Inventory Register, Property Register, Auction Register, even auditors were appointed.
41. It is relevant to state that the plaintiff charity is a different entity. The defendants are group of individuals claiming title and partition with charity. It is to be noted that the defendants cannot said to be joint owners with the institution which is recognised as a Public Trust administered by HR&CE The open lease and open auctions said to have been held by charity on behalf of rival claimants and payment of kists by charity also cannot be accounted on behalf of the joint pattadars. The theory of alleged joint possession is only invented after more than 100 years. If they were joint owners, how they kept quite when Alavandar himself dealt with the properties, his exclusive right and title by registered instruments. It is also relevant to note that after Alavandar demise, why they did not challenge the administration of the charity and through Court trustees have been appointed and the subsequent vesting of charity with the HR&CE Board and why they had been kept quiet all along when the department has been collecting lease warrams from pattadars and why the rival claimants participated in the department in the leasing of lands and subsequent sale of Casuarina trees by entering into agreements. Be that as it may, the first and foremost contention of the appellant is that the Executive Officer cannot maintain a Suit. At this juncture, it is relevant to mention that Section 7(9) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, defines the Executive Officer. Executive Officer means a person who is appointed to exercise such powers and discharge such duties appertaining to the administration of a religious institution as are assigned to him by or under this Act or the Rules made thereunder or by any Scheme settled or deemed to have been settled under this Act. It is also relevant to note that the Conditions for Appointment of Executive Officers Rules, 2015 framed by the Government of Tamil Nadu, confer powers on the Executive Officer to file Suit on behalf of the temple.
42. At this juncture, it is relevant to refer the judgment of this Court in Idol of A/m. Sri Kalyana Venkataramaswamy v. M.Palanivel and Others [2023 SCC OnLine Mad 8766], wherein in para 20 it has been observed as under:
“20. It is relevant to note that Rule 4(b)(iii) of the Condition for the Appointment of the Executive Officer Rules, 2015 referred to above, the Executive Officer can sue or be sued in the name of religious institutions in all the legal proceedings with the approval of the competent authority. Therefore, once the Executive Officer has the power to administer the affairs of the temple, Rules also specify that he can sue or be sued in the name of religious institutions, power to institute a suit is inherent at any point of time, as per the rules. When the Executive Officer is the responsible Officer and it is his duty to maintain and protect the interest of the temple, it cannot be said that for every action for recovering the temple properties, a separate approval is required. Such approval is inherent in view of the Rules 4(b)(iii) of the Conditions for Appointment of Executive Officer Rules, 2015. It is also relevant to note that subsequent to the judgment of this Court as referred to above, there was an amendment in the form of 34- A and 34-B which came into existence w.e.f 10.5.2003. Section 34- A(2) gives absolute power to the Executive Officer in fixing the lease of the land in respect of religious institutions. It is an appealable order. 34(B)(3) is also clearly empowers the Executive Officer to take possession of the property including buildings, if any. When the amendment itself has brought in the statute empowering the Executive Officer to recover possession of the temple properties, merely on technicalities, it cannot be said that there is no power conferred by the Commissioner to institute a suit, therefore the suit cannot be non-suited. Executive Officer in the realm of affairs of the temple, duty is cast upon him to protect the temple property and for recovery of the same. Therefore, this Court exercising the Parens patriae jurisdiction over the temple properties, is of the view that the technicalities has to yield to substantital justice. From the above discussions, this Court is of the view that the suit filed by the Executive Officer is very well maintainable, as also held by the learned Single Judges in the latest judgments. It is also relevant to note that Ex.A5 is the scheme framed under the old Act. Scheme was originally framed on 15.10.1956 for a period of five years.The trial Court has held that there is no document to show that publication was effected in this regard to show that the scheme was extended from time to time. Therefore the Scheme is also not believed by the trial Court. It is relevant to note that under Ex.B5, the Executive Officer is specifically empowered to file a suit. It is relevant to note that Section 118(b)(i) of the H.R & C.E Act deals with Repeal and savings. If any provision contained in the Scheme settled or deemed to have been settled under the old Act and only such scheme is repugnant to any provision contained in this Act or rules made thereunder, the later provisions shall prevail and the former provision shall to the extent of the repugnancy be void and not in its entirety. The Executive Officer is the person appointed to exercise the powers of the of the appointing authority of the religious institutions, as is assigned to him or under this Act or Rules made thereafter or by any scheme settled or deemed to have been settled under this Act. Therefore, the Executive Officer in the affairs of the temple, there is specific rules framed as referred to above in the Rules 2015, wherein, he can sue or be sued in the name of religious institutions. Therefore, it cannot be said that he has no power to maintain the suit. Accordingly, this point is answered.”
43. It is pertinent to mention that in the case on hand, the first Scheme Suit after the demise of Alavandar came to be filed in O.S.No.13/1916 on the file of Sub-Court, Chengalpatttu wherein, the Will dated 22.06.1914 was declared valid and the properties are Trust properties. The said Scheme Decree went on appeal in A.S.No.226/1916 wherein, this Court declared that Sri Alavandar charities is a Public Trust of permanent nature and also upheld the Will. The 2nd Scheme Suit came to be filed in O.S.No.1/1943 on the file of the District Court, Chengalpattu, wherein, HR&CE was impleaded and the control and superintendence vested with the Board and the same has been affirmed by this Court in A.S.No.37/1945. As per Rule 4(b)(iii) of Conditions for Appointment of Executive Officer Rules, 2015, the Executive Officer can sue or be sued in the name of religious institutions in all the legal proceedings with the approval of the competent authority. In the case on hand, admittedly the control and administration of Plaintiff Charity by HR & CE Department has been ordered by this Court. In view of the above, the Suit filed by the Executive Officer is very well maintainable. Point No.1 is answered accordingly in favour of Plaintiff Charity.
POINT NO.2
44. It is seen from records, the Suit in O.S.No.76/1992, the Plaintiffs are 1) S.Boopathy Gramani (died), substituted by B.Kaniappan as per order passed in I.A.No.311/1994 dated 18.07.1994, 2) R.Kuppusamy Naicker, 3) P.Alladi Gramani (died), substituted by A.Roopanandam as per order passed in I.A.No.607/1995 dated 29.09.1995, 4) Sengani Gramani, 5) B.Kanniappa Naicker, K.Kamaraj substituted as per order passed in I.A.No.246/1997 dated 07.04.1998, 6) Selvaraj Mudaliar, 7) Natesh Gramani, 8) Krishnammal, 9) T.Subramaniam and 10) Viswanathan, for themselves and on behalf of the entire body of the families of late Kumaraswamy, late Sundarammal, late Perumal Gramani, late Arunachala Gramani, late V.Kannu Naicken, late Rajagopal Mudali, late A.Rangasamy Gramani, late Krishnasamy Gramani, late Ponnamal and late Arunachala Gramani. The 1st defendant is the Sri Alavandar Charities represented by its Executive Officer, Mamallapuram, 2nd defendant R.Kanniappan, 3rd defendant Kanagasabai, 4th defendant Raja Bather [D3 added as per the order passed in I.A.No.411/1994 dated 16.08.1994] and D4 added as per the order passed in I.A.No.429/1994].
45. It is seen from the plaint averments in O.S.No.76/1992, the plaintiff have not stated that how they have directly related to the pattadars and when different type of genealogy tree has been filed by them, mere filing of the genealogy tree is not sufficient to establish their case in the absence of supporting documentary evidence. The plaintiffs have not chosen to implead all the descendants, who are said to have been claiming right over the properties.
46. It is to be noted that the Court below has not framed any specific issue as to whether the suit in O.S.No.76/1992 is bad for non-joinder of necessary parties. It is seen from Ex.A190 – Extract of the Settlement Register for the year 1877 that there are 13 pattadars names were mentioned namely Manicka Gramani, Jaganatha Gramani, Pachaiyappa Gramani, Muniyappa Gramani, Arunachala Gramani, Govinda Gramani, Veeraswamy Naicker, Arunachala Gramani, Varadappa Naicklen, Muniyappa Gramani, Senkazhuni Nayakkanm, Poruran Chetty and Lakshmana Chetty. Though the plaintiff have stated that there are numerous claimants for the properties, who are the descendants of the original pattadars between 1877 to 1911, as per Ex-A3 – Settlement Register 1877 and Ex.A14 – Resettlement Register 1911, the plaintiffs have not impleaded all the parties with regard to S.No.168 as well as individual sub divisions. In such circumstances, the plaintiff ought to have impleaded all the legal heirs who are representing the pattadars in Ex.A190. Admittedly, they have chosen to implead the Plaintiff Charity alone as one of the defendants. Though the plaintiffs have filed annexures showing genealogy tree, it will not give any credence to their claim. The plaintiffs have not impleaded the actual persons and how the rights devolved to those persons have not been pleaded in the plaint.
47. At this juncture, it is relevant to refer Order 1 Rule 8 CPC.
8. One person may sue or defend on behalf of all in same interest.
(1) Where there are numerous persons having the same interest in one suit,-
(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff’s expense, give notice of the institution of the suit to all persons so interested either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff’s expense, notice to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
Explanation-
For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the person on whom behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.
48. Though the defendants claim that all the persons, who are claiming to be legal heirs of pattadars can be ascertained easily, however the suit is filed without impleading the parties, who are actual pattadars and the defendants have not produced any document to show that they are lineal descendants of the actual pattadars. The representative suit can be filed for a larger number of persons who have a common interest. Under Order 1 Rule 8, it is required that the persons concensus must have common interest or common grievance. The ingredients mandated under Order 1 Rule 8 CPC has not been fulfilled by the plaintiffs in O.S.No.76/1992 for seeking partition. In the absence of proof of legal heirs of the pattadars mentioned in Ex.A190, Ex.A3 and Ex.A14 by mere filing the suit for partition in the absence of common grievance among the legal heirs of pattadars, the Suit is not maintainable. Point No.2 is answered Accordingly.
POINT NOS. 3, 4 AND 5
49. According to the Plaintiff Charity, the following sub-divisions over the years relating to Patta No.27 and for the land in S.168:
50. Ex.A3 is the Settlement Register of the year 1877 pertains to the village of Pattipulam Village, which shows that S.No.168/B measuring 101.23 acres alone was owned by 13 pattadars and the name of pattadars are also mentioned in Ex.A190. The extent of land reflected from Ex.A3 are as under:
S.No.168/A – 38.71 acres
S.No.168/B – 101.23 acres
S.No.168/C – 129.87 acres
S.No.168/D – 137.35 acres
This document does not mention these pattadars as against S.No.168/A or 168/C or 168/D. It shows that 13 persons were not having any right or title with regard to S.No.168/A, 168/C and 168/D. 13 names were mentioned only in S.No.168/B alone. Further, it is seen from records the Charity got Cowle pattas with regard to S.No.168 / A, C and D. The Cowle patta were granted in June 1877 whereas the Settlement Register also published in 1877. Since the Cowle pattas were granted first, during the publication of Settlement Register, the columns of pattadars as against columns A, C and D were left blank. Had the Cowle patta been granted prior to settlement proceedings, definitely the Settlement Register would indicate the name of Alavandar as pattadar in respect of S.No.168/A, C and D. Therefore, it shows that Alavandar was granted Cowle patta in June 1877 just about the publication of Settlement Register which is evident from Ex.A15 and Ex.A224. As per Ex.A115 – Copy of Cowle Pattta dated 14.06.1890 for fasli 1296 stands in the name of Alavandar. Ex.A115 – Thope Cowl Register extracted for 10 fasli 1296 [1877 to 1887] it shows that S.No.168/A measuring 38.71 acres was assigned to Alavandar. Ex.A224 is another Cowle Register extract for the period of 20 years. This shows that Alavandar was granted Cowle patta in 1877 for S.No.168/A measuring 38.71 acres and S.No.168/C measuring 129.87 acres. Both exhibits in Ex.A.115 and A.224 shows that Alavandar as a pattadar under Patta No.32. Hence Alavandar was already a pattadar under Patta No.32 even prior to the grant of Cowle Patta and the same is evident from Ex.A4 – Patta issued in the name of Alavandar by the Deputy Collector Chengalpattu in May 1899. According to the Plaintiff Charity, Alavandar was also granted similar Cowle Patta in respect of S.No.168/D and the same has been established through other documents. Ex.A115 and Ex.A224 are Certified Extracts issued by revenue authorities and the same are very old documents. None of the pattadars whose names figured in Ex.A3 in respect of S.No.168/B had objected to the issuance of Cowle Patta in favour of Alavandar. It is also not the case of the defendants that their ancestors were ever granted patta for S.No.168/A, C and D between 1877 and the 2nd Settlement period on 1911.
51. The subdivisions in S.Nos.168/A to I, together counts for 305.11 acres as follows:
S.No.168/A – 38.71 acre, which reflected Cowle grants of 1877 under Ex.A15 and Ex.A224 – regularized into Patta No.32.
S.No.168/C – 129.89 acres covered under Cowle Grants of 1877, which is reflected under Ex.A224 within Patta No.3.
In total as per S.No.168/A, C to I, covers 305.11 acres out of 462.43 acres covering the whole patta No.32.
52. The above facts have been accepted as evidence in Exs.A121 dated 12.01.1905 – Certified copy of the judgment in O.S.No.406-425/1905 on the file of the District Munsif Court, Kanjivaram. It is pertinent to note that subsequent to the sub-division of S.No.168 i.e., 168/1 – 56.25 acres, 168/2 – 21.88 acres and S.No.168/3 – 328.71 acres, in total 406.86 acres stands in the name of Alavandar under Old Patta Nos.25 and 32. It is not in dispute that S.No.168/2 to an extent of 21.88 acres were acquired by the Government of Tamilnadu for formation of East Coast Road in the year 1968.
53. In view of the above, S.No.168 came to be reduced to 389.96 acres. During the land acquisition proceedings, S.No.168 was subdivided into 3 i.e., S.No.168/1 – 56.25 Acres, S.No.21.88 Acres (acquired) and S.No.168/3 – 328.71 Acres. In S.No.168/1, brought into Alavandar’s exclusive patta. The area covers under S.No.168/2 continued to be in joint patta No.27. Subsequently, Patta No.32 was changed into Patta No.12 in 1986 U.D.R.
54. It is pertinent to note that S.No.168/3 was later subdivided into several parts. The entire extent of 98.71 acres which formed old Survey No.168/B formed part of S.No.168/3 but was held by several individuals out of whom 12 persons got separate pattas for 49.54 acres. The remaining 49.17 acres was enjoyed by 41 other purchasers whose name also were also included in joint Patta No.27 along with Pattadars and the area held by each as follows: Premchand – 3.75 acres, Senthilkumar – 3.75 acres, D.V.Sathiyanarayanan-4.71 acres, Kalyani Swaminathan – 7.32 acres, K.Ramakrishna Naicker – 4.49 acres, Parvathakumar Pillai – 4.49 acres, Seeniyammal – 2.70 acres, A.Perumal – 3.19 acres, M.C.Naidu & Sukumar – 4.47 acres, C.Ramakrishnan – 3.75 acres, C.Prabhakar – 4.80 acres, B.Vijayakumar – 2.12 acres, Totalling 49.14 acres.
55. According to the plaintiffs, the Charity was in possession and exclusive enjoyment of 56.25 acres in S.No.168/1 and 203.77 acres in S.No.168/3E/1A/1A/1C/2B under a separate Patta No.12 and 26.23 acres in S.No.168/3E/1A/1A/1C/2A under Joint Patta No.467.
56. In 1888, Alavandar had mortgaged the property which he got by way of Cowle Patta in Nimmeli Village to one Ramanuja Naicker. The extent of mortgage was nearly 143 acres under Ex.A209 – Mortgage Deed dated 24.01.1888 and 355 acres were mortgaged in Ex.A210 – Mortgage Deed dated 11.06.1888 for a sum of Rs.5,000/- and Rs.10,000/- respectively. Ex.A213 is a Lease Deed executed by Dhana Naicker and 2 others in favour of Alavandar dated 01.08.1897 relating to S.No.168/C and S.No.251 measuring 16 Acres comprised in Patta No.32. This shows that S.No.168/C was in patta No.32 and was dealt with by Alavandar. As per Ex.A160- Mortgage Deed dated 21.03.1898, shows that Alavandar had mortgaged a total extent of 457.95 acres in Patipulam Village and Melakuppam Village inclusive of S.No.168/C measuring 129.87 acres and 168/D measuring 48.34 acres which covers patta No.32.
57. Ex.A4 is the patta issued to Alavandar in the year 1899 relates to S.No.168/A, C, D, E, F, G, H and I. The total extent covered under this patta is 462.23 acres with an assessment of Rs.264.15. 0 anna paisa. It is to be noted that S.No.168/A, C to I measuring to an extent of 305.13 acres. Ex.A255 is the Mortgage Deed executed by Alavandar on 21.03.1898 i.e., prior to issuance of Ex.A4 dated May 1899- Patta when there were only 4 sub divisions in S,No.,168.
58. Under Ex.A255, Alavandar raised a loan for Rs.12,000/- by mortgaging S.No.168/C measuring 129.87 acres and 168/D measuring 48.34 acres along with other lands totalling an extent of 458 acres. As per Ex.A255, shows that Alavandar had dealt with the sub-divisions 168/A, C and D under Exclusive Patta No.32 in his own right and title upto 1898. A perusal of Ex.A255 shows that Alavandar had pledged lands and 50000 Casuarina Trees. Subsequently, the Mortgagor Sri Ranga Achariyar filed the Suit against Alavandar in O.S.No.22/1902. In Ex.A251 – Suit Register Extract shows that the Suit was decreed as compromise petition filed on 14.10.1902 before the District Court, Chengalpattu. Ex.A198 is the certified copy of Kist payable for Patta Nos.32 and 27. As on date, Patta No.32 included S.No.168/A, C to J and Patta No.27 relates to S.No.168/B alone. Under Patta No.32 Alavandar has paid Kist to the tune of Rs.256 + 7 = Rs.263/- . Under Patta No.27, he has paid Kist to the tune of Rs.8 and 8 annas. This shows that Alavandar had also owned some extent of land in S.No.168/B.
59. Ex.A215 is the Discharged Simple Mortgage executed by Alavandar in favour of Shanmugam Chettiar for Rs.2,000/- for which he has mortgaged the lands in Nemmile village in respect of 366.31 acres. Ex.A114 is the Resurvey and Settlement Register of 1911 relating to Pattipulam Village. This is equivalent to Ex.B49. This document shows that O.S.No.168/A to J classified as Government Punja {Government Dry Lands} were clubbed as a single survey number without any sub division in the year 1911. It is pertinent to mention that S.No.168/B measuring 101.23 acres was under Patta No.27 bearing 168/B, the other numbers A to J were comprised only in Patta No.32 in the name of Alavandar. By merger of all those sub divisions into a whole survey number, the name of Alavandar was also clubbed with the joint pattadars of erstwhile joint patta No.27 which relates to S.No.168/B. The erstwhile joint pattadars or their successors of old survey number 168/B, who hold an extent of 101.23 acres cannot suddenly become the owners of 407.16 acres with common interest. The documents relied upon by the defendants as well as the plaintiff charity shows that the pattadars under 1877 Settlement in Ex.A3 relating to S.No.168/B. Their successors in title had dealt with their properties comprised in S.No.168/B with specific boundaries with specific extent. They never owned a joint or common interest in S.No.168/B. The defendants have not placed any document to show that they enjoyed anything more than S.No.168/B.
60. During the year 1903, Alavandar has not paid Rs.3,000/- to the Government as kists due from him for all the properties possessed by him in the six villages. Therefore, livestock, boats and other movable properties of Alavandar have been destrained and the Sub-Collector, Chengalpatta has notified an auction sale. Ex.A191 is the petition presented by Rangaswamy Dasan, a Clerk of Alavandar appealing to the Collector not to execute the order. Ex.A196 series are the Thandal Extract for fasli 1330 which shows that Alavandar paid kists for patta No.32 and also patta No.27. While Patta No.32 was the individual patta of Alavandar and the patta No.27 was the joint patta of 13 pattadars for 101.23 acre in S.No.168/B. Ex.A201 is the Promissory Note by Alavandar in favour of one T.S.Shanmugam Chetty under which Alavandar raised Rs.8,250/- as loan. Ex.A215 is the mortgage deed by which Alavandar raised a loan of Rs.2,000/- and used the money to discharge the land revenue dues for the year 1902.
61. Ex.A125 is the Sale Deed dated 16.06.1904 executed by Alavandar in favour of Guruswamy Nadar and another with regard to sale of Casuarina roots over an extent of 266.95 acres. Ex.A217 – Lease Deed dated 17.06.1904 executed by Subbu Naicker to Alavandar shows that lease has been entered to cultivate S.No.168/A, F, G, H and I, besides other survey numbers owned by Alavandar under Patta No.32. Ex.A218 is the Lease Deed executed in favour of Alavandar for cultivation in S.No.168/D/ Ex.A216 is the Mortgaged Deed dated 11.02.1904 executed by Alavandar in favour of Shanmugam Chetty in respect of S.No.168/A, C to I measuring 305.16 acres besides other lands totalling an extent of 725.51 acres. As per Ex.A216 reveals that after S.No.168/D, was further subdivided as S.No.168/D to J.
62. Ex.A121 is the Certified Copy of judgment in the batch of cases in O.S.No.406 to 425 of 1905 on the file of District Munsif Court, Conjeevaram. These 20 suits were filed by Alavandar against 20 individual tenants. These suits were field by Alavandar to establish his exclusive title over the subject matter of those suits and held that at he was entitled to declaration. The judgment made in Ex.A122 – batch suit was confirmed in the batch of appeals in A.S.No.94 etc., of 1906. by the District Court, Chengalpattu. Exs.A126, A127 are the agreements executed by casual labourers in favour of Alavandar and Exs.A220 to 223 were executed by 3rd parties in favour of Alavandar with regard to the properties comprised in S.No.168/A, C to J and also over small portion in S.No.168/B and also in S.No.251 all situate in Pattipulam Village.
63. On 20.10.1908, Alavandar sent a letter in Ex.A116 to the Tahsildar Chengalpattu in which has described himself as owner of Patta No.32. Ex.A114 is the Survey and Settlement Register of 1911 for Pattipulam Village, which is equivalent to Ex.B49. This documents that in the year 1911, O.S.No.168A was classified as Government Punja and the lands were clubbed as single survey number without any subdivision till 1911. S.No.168/B measuring 101.23 acres under Patta No.27 and whereas S.Nos.168/B to J under Patta No.32 were in the name of Alavandar. By merging all these subdivision into the whole survey number in the name of Alavandar, it relates to S.No.168/B. It is to be noted that by merger, Alavandar’s title with regard to Old Sub division S.168/A to J cannot be lost.
64. A petition dated 11.05.1915 to the Sub Collector, Chengalpattu by Muthukrishna Naicker as Executor of the Will, requested the Sub Collector to remove S.No.168/A to J [Except S.No.168/B] from Joint Patta No.27, erroneously included by survey officials and to restore them to Old Patta No.32. It is seen from Ex.A203, the Joint Patta of 1911 cannot raise any right or title to the defendants in entirety to 407.16 acres merely on the account of merger of all the sub divisions in it and the clubbing of sub divisions into single survey number cannot bring change in character or ownership or possession of the parties. Ex.A136 is the Audit Report dated 20.10.1938 into the Scheme Court shows that the plaintiff charity owned about 300 acres in S.No.168. The total extent accounted in that report in all the villages was 1165 acres of Nanja and Punja lands. Ex.A199 is the patta for the year 1928 which shows Muthukrishna Naicker as one of the pattadars under Patta No.27. Ex.A202 -24.11.1939 is the petition by the Trustees to the Tahsildar Chengalpattu for transfer of pattas in their names representing Alavandar Charities as per Court orders.
65. Ex.A249 is the Inventory Register of the year 1939 wherein it has been stated that the charities hold 307.16 acres in S.No.168 and also 28.85 acres in S.No.251 in Pattipulam Village under Joint Patta No.27 and the total extent of lands belonging to the Charity is 499.28 acres in Pattipulam Village alone.
66. Ex.A124 is the Decree passed by this Court in A.S.No.37/1945 dated 01.03.1946 wherein this Court modified the earlier decree to the effect that one of the then non-hereditary trustees shall be selected from among the lineal male descendants of Muthukrishna Naicker. Ex.A1 is the Final decree dated 24.09.1946 passed by the District Court, Chengalpattu in modification of the earlier directions of this Court under Ex.A124. In the Final Decree in Ex.A1, the Court has framed the entire scheme for the guidance of HR&CE to administer the Charity and its affairs while taking control from the Court. Ex.A249 is the Inventory Register prepared in the year 1939 and Ex.A254 is the permanent property register prepared by HR&CE Department and approved by the Board in 1949 in accordance with the Scheme Decree.
67. It is to be noted that as per Exs.A12 to 32, A152, A158 and A181 (Kist Receipts between 1957 to 1992) the Plaintiff charity paid Rs.300/- to Rs.3,700/- as kist for S.No.168, covering the Scheme. The defendants have chosen to file Exs.B59 to B72 for Rs.2 for Patta No.27, which shows the incapability of defendant to claim to a major extent, but the plaintiff claims ownership of the major extent of land. During the course of arguments, learned Senior Counsel for the appellant would state that there is no claim in respect of S.No.168/A, C or D.
68. Ex.A7 is the Property Register maintained by the Department containing the details of property owned by Alavandar Charities signed by Special Officer, Temple lands. This Register shows that Charity owned as on 1975 a total extent of 1088.37 acres of land under Part I and another 6 acres under Part II (non-cultivable). Ex.A42 to A46 are the Auction Notice issued by the Charities relating to the years 1946, 1966, 1973 and 1982. In Ex.A42, the total extent of land in S.No.168 auctioned for cutting of trees is 241.25 acres.
69. The Suit in O.S.No.76/1992 is filed by Boopathy Gramani and 9 others for themselves and the other family members as mentioned above. According to them, during 1911, the sub divisions 168/A, C and D were merged and there were 11 pattadars and therefore, the plaintiff charity, being a joint pattadar, is entitled to 1/11th share. It is to be noted that in para 6, in the plaint in O.S.No.76/1992, wherein it is admitted that an extent of 15 acres was dealt with by Kumaraswamy’s branch in S.No.168/B. Likewise, the plaintiffs ancestors [10 families] also dealt with their portion of land in S.No.168/3 i.e., Old S.No.168/B. From the averments of the plaint, shows that S.No.168/B in entirety already been sold by the plaintiffs ancestors. In para 8 of the plaint, they admitted that the Government acquired a portion in S.No.168 measuring 21.81 acres for formation of Road. It is to be noted that an extent of 21.88 acres in S.No.168/2 belonging to the plaintiff was acquired by the Government for the formation of Kovalam Mahabalipuram Road, now called as Chennai Mahabalipuram Road as per Notification of the Government in the Gazette dated 10.01.1968. Notification under Section 4(1) of the Land Acquisition Act was served on the plaintiff. On completion of the acquisition proceedings, the plaintiff charity received the compensation for the lands acquired from it in S.No.168/2 as per the Award passed and the same has been reflected under Exs.A5, A6, A189, A248 and none of the defendants have challenged the award passed by the Land Acquisition Officer in favour of the charity and it has become final. Therefore, non-challenging the land acquisition award, recognised Charity as the owner of the land. The defendants admits that the compensation for acquisition of road was paid to plaintiff charity.
70. The 10th plaintiff in O.S.No.76/1992 was examined as DW2. The 2nd plaintiff Kuppusamy Naicker was examined as DW3. B.Kanniappan, son of the 1st plaintiff was examined as DW4. Shanmugham, son of Krishnammal / 8th plaintiff was examined as DW5. Renukadevi – Cousin sister of Kanniappa Naicker / 5th plaintiff was examined as DW6. Rajapather / 4th defendant in O.S.No.76/1992 was examined as DW8. It is to be noted that the 9th plaintiff / T.Subramaniam, 10th plaintiff / Viswanathan, 2nd defendant / R.Kanniappan in O.S.No.76/1992 had jointly filed the Suit in O.S.No.665/1990 while they were cordial with each other for a declaration of the exclusive title of 3 families represented by them and for an injunction. The said Suit was then restricted to an extent of 291.08 acres only, which according to them form part of S.No.168/3E/1A/1A/1C. The claim of the present plaintiffs in O.S.No.76/1992 seeking partition based on 1911 Settlement Register. Except for the pleadings that the names of all pattadars are found in the old S.No.168, in the Settlement Register 1911, they have not stated anywhere in the pleadings as to how they have derived title jointly over the entire extent of 407.16 acres in S.No.168. They admitted that there are 4 sub divisions in S.No.168 from 1877 Settlement and also admitted about the further sub divisions of S.No.168/D into 168/D to J in 1899. Until all these sub divisions were merged in 1911. They have not averred as to who were the pattadars in 1877 settlement with regard to 168/A, C and D and who are the pattadars from 1899 Settlement till 1911 with regard to 168/A, C to J as S.No.168/B was the only sub division which was entered in 1877. The Settlement Register mentioned 13 person names. The grant of Cowle patta to Alavandar is not disputed with regard to 168A, C and D. Similarly patta for S.No.168/A, C to J regularized in 1899 in the exclusive Patta No.32 in favour of Alavandar. The dealings by Alavandar from 1877 onwards with regard to S.No.168/A, C to J by way of mortgage, leases, labour agreements, relating to sale of Casuarina Trees and all by registered instruments cannot be disputed by these plaintiffs in O.S.No.76/1992 and they are claiming the relief of partition nearly after more than 100 years. When there is a documentary proof available in favour of Alavandar, from 1877 to 1911, in respect of S.No.168/A, C to J, in such circumstances, the plaintiffs in O.S.No.76/1992 fixed the cut off year as 1911 to decide the title has not been explained properly.
71. The Government, which is a party in the Suit in O.S.No.107/1994 itself recognised the title of Plaintiff Charity in the written statement. Earlier various Court proceedings also declared the title of Alavandar and the estate was administered through Court order for some time and from 1949 by HR&C Department which is part of the Tamil nadu State Government. Admittedly the plaintiff is a public trust declared by the Court and as such, no one can claim rival title against the charity. In order to prove the case of the plaintiffs in O.S.No.76/1992, they have mainly relied upon Ex.B61 to B66, B73, B82, B83, B87 are the sale deeds. Ex.B61 is the copy of sale deed dated 22.09.1950. This document has not been pleaded by the plaintiffs. The vendor Selvaraja Mudaliyar is a party to the suit i.e., 6th plaintiff in O.S.No.76/1992. If Selvarja Mudaliyar alleged to have sold the property, how can he claim once again 1/11th share. The document in Ex.B62 is the Sale Deed in the year 1960 relating to 4 acres in S.No.168/B. Ex.B63 is the Sale Deed relating to 4 acres in S.No.168/B. Ex.B64 is the Sale Deed dated 25.04.1900 relating to S.No.168/B. Ex.B65 is the Sale Deed dated 27.03.1930 relating to 4 acres in S.No.168/B. Ex.B66 is the Sale Deed dated 01.06.1949 relating to S.No.168/B to an extent of 4 acres. All these documents are relating to S.No.168/B. Exs.B82 and B83 are Sale Deed are not related to S.No.168/B. Exs.B69 to B72 are Kist Receipts for the period 1946 to 1950. Ex.B70 is Fasli 1365. Ex.B71 dated 26.03.1963 is for Fasli 1370. Ex.B72 is the Kist Receipt dated 22.05.1965. All these Kist Receipts are issued for Kist payment pertaining to Patta No.27. Except these documents, the plaintiffs in O.S.No.76/1992 have not produced any document to substantiate their claim. These documents are not sufficient to establish their title to the suit properties or to the Old S.No.168/A, C and D.
72. Though the defendants have denied the issuance of Cowle Patta, the contention of the defendants that S.No.168/B alone was patta land and S.No.168A, C and D were poromboke lands. In order to prove the above said facts, the defendants have not produced any document. According to the plaintiff, charity, the lands in S.No.168/A, C and D which were originally poromboke lands were occupied on the basis of Cowle Pattas by Alavandar and he continued to possess and enjoy it. Subsequently, Cowle Patta was made a regular patta and included in Patta No.32.
73. In the absence of any document produced by the defendants as to the aforesaid poromboke lands, it cannot be recorded or presumed by the Government, which shows that lands which were classified as poromboke were converted into patta lands of Alavandar and the same lands were resumed by the Government. The Revenue Officials, District Collector, RDO and Tahsildar were also defendants in the Suit in O.S.No.107/1994. It is not the case of the defendants that totally 13 pattadars mentioned in 1877 settlement were acquired right over any of the properties in S.No.168/A, C and D. However their rights were confined only to S.No.168/B alone.
74. With regard to Joint Patta No.505 dated 18.12.1992, over 203.77 acres rested on the injunction in I.A.No.2096/92 and subsequently, this Court, set aside the same in CRP.No.3127/92 in Ex.A260 dated 18.01.1994. In such circumstances, the Charity, which has got exclusive Patta No.12 stands good.
75. In view of the above discussion, the plaintiff charity has been categorically established that the plaintiff charity is entitled to 308.45 acres of lands in S.No.168/A, C to J under Patta No.32 and the same extent in S.No.168 as per the 1911 Settlement. The plaintiff charity is in possession and enjoyment of 56.25 acres under Patta No.12 and 26.23 acres in S.No.168/3E/1A/1A/1C/1A under Joint Patta No.467 and 203.77 acres in S.No.168/3E/1A/1A/1C/2G under Patta No.12.
76. DW3 in O.S.No.107/94 - one S.Viswanathan, has admitted that there are 43 pattadars in S.No.168 and that 43 pattadars have separate possession. He also deposed that 12 pattadars have individual subdivisions with individual pattas. In order to prove the above said facts, the defendants have not placed any acceptable document to that effect.
77. DW4 – B.Kanniappan (5th defendant in O.S.No.107/94) has admitted that one Aparajitha Ambal, who got lands in Ex.B63 – Sale Deed dated 27.01.1959, has sold it to one Kannammal and as per Ex.B64 - Sale Deed dated 25.04.1900, Ammani Ammal executed sale deed in favour of one Ponnammal to an extent of 4.75 acres. DW8 - Rajapather / 4th defendant in O.S.No.76/92 also admitted that his ancestors have sold 67 acres. From the evidence of the above witnesses shows that several transactions have taken place previously and the lands in S.No.168/B to an extent of 101.23 acres have changed several times and the enjoyment of the said lands were reflected as Ex.A120 – Extract of Settlement Register for 1990.
78. It is also to be noted that the 1st defendant / R.Kanniappan in O.S.No.107/1994 has filed the Suit in O.S.No.109/94 as a Power Agent. He is the plaintiff in O.S.No.161/1994 and he is also the 1st defendant in O.S.No.159/1994 and the 3rd defendant in O.S.No.209/94. According to him, he is the descendant of Manicka Gramani, one of the pattadars in 1877 Settlement. According to the Charity, he is the defendant in O.S.No.107/1994, who was examined as DW1.
79. As per Ex.A162, Parthasarathy Gramani sold an extent of 15.14 acres to one Murugesa Gramani. As per Ex.A168, an extent of 15.15 acres was sold by Rajarathina Gramani in favour of Gianambal. According to the 1st defendant / DW1 and the plaintiff in O.S.No.109/1994, they are entitled to 101.23 acres in S.No.168/B and the name of Vellappa Gramani is not found in Ex.A1 – 1877 Settlement Register. Similarly, the name of Parthasarthy Gramani was not found in 1877 Settlement Register, whereas Manicka Gramani name was found. The defendants have not stated about who are all the legal heirs of Manicka Gramani Vakaira in their pleadings.
80. It is relevant to note that the defendants in O.S.No.107/1994 (A.S.No.505/2011) and the plaintiffs in O.S.No.76/1992 (A.S.No.569/1999) and others had filed several suits against the charity in O.S.No.109/1994 (Tr.A.S.No.148/2004), O.S.No.111/1994 (Tr.A.S.No.149/2004), O.S.No.161/1994 (Tr.A.S.No.150/2004), O.S.No.159/1994 (Tr.A.S.No.209/2004). All the aforesaid suits filed by them were dismissed and the Suit for Declaration filed by the Charity alone decreed by the common Judgment and Decree by the Court below. Aggrieved over the dismissal of the Suit, they have preferred the appeals as mentioned above and also cited in para 34 supra i.e., Tr.A.S.Nos.148/2004, 149/2004 and 150/2004 were dismissed for default on 01.07.2022, 15.07.2022 and 15.07.2022 respectively. They have not chosen to file any application to restore the said appeals which were dismissed for default, rather they have chosen to contest the present appeal suits alone. The above 3 appeals suits, which were dismissed for default, have reached finality between the parties and once again the matter cannot be adjudicated as the amount would hit by the Doctrine of Rejudicata.
81. In the absence of any positive evidence on the side of plaintiffs in the Suit in O.S.No.76/1992 to prove their title of joint ownership to the suit schedule properties mentioned therein, they are not entitled to the relief of partition. They have also admitted in their own pleadings that all their dealings pertains only in respect of S.No.168/B and not with reference to 168/A, C and D and in as much the Plaintiff Charity has produced voluminous documentary evidence to prove its title and its exercise of ownership by various acts and deeds. In view of the overwhelming evidence available to that effect, the plaintiff charity has been in exclusive possession and enjoyment of the suit schedule properties. In fact the various branches of defendants [plaintiffs in O.S.No.76/1992 have categorically participated in all the leases / actions conducted by Charity and they cannot seek for any right over the suit schedule properties. Hence, they are not entitled for the relief of partition. Point No.3 and 4 are answered accordingly. Consequently, Point No.5 does not survive.
82. This Court, in exercise of its appellate jurisdiction, finds no merits in these appeals and the same are liabe to be dismissed.
83. Accordingly, these Appeal Suits are dismised, confirming the judgment and decree dated 31.03.1999 in O.S.No.76 of 1992 & O.S.No.107 of 1994 on the file of the Principal Subordinate Judge, Chengalpattu. No Costs. Consequently, connected miscellaneous petitions if any, are also dismissed.