IN THE HIGH COURT OF JUDICATURE AT MADRAS          

DATED: 10/09/2005

CORAM  

THE HON'BLE MR.JUSTICE M.CHOCKALINGAM          

S.A.NO.252 OF 1994  

1.Gopalakrishnan
2.B.Srinivasan                                  ..  Appellants

-Vs-

Balasubramaniam                                ..  Respondent

        This second appeal is preferred under Section 100 of CPC  against  the
judgment and decree dated 28.7.1993 passed in AS No.193 of 1991 on the file of
the  learned  Additional District Judge, Salem against the judgment and decree
dated 12.10.1988 passed in OS No.1421 of 1986  on  the  file  of  the  learned
District Munsif at Namakkal.

!For Appellants :  Mr.J.R.K.Bhavanandam

^For Respondent :  Mr.Subramanian
                for Mr.K.Jayaram

:JUDGMENT  

        Aggrieved  over  the  judgment  of  the  learned I Additional District
Judge, Salem made in AS No.193 of 1991, wherein  the  judgment  of  the  trial
court,  namely  the Principal District Munsif, Namakkal, made in OS No.1421 of
1986 was affirmed, the defendants have preferred this second appeal.

        2.It was a suit filed by the respondent/plaintiff, seeking declaration
of title in respect of landed property shown in  the  'A'  schedule  and  also
declaration  in  respect  of  +  share in the pooja right of Varadarajaperumal
temple shown as 'B' schedule and consequently, for partition.  The plaintiff's
case as could be seen from the pleadings can be stated shortly thus:
        The plaint described 'A' schedule property originally belonged to  one
Appasamy Iyer @ Eswara Iyer and in the year 1919, he executed a Will in favour
of  plaintiff's  father Padmanaba Iyer and his wife Maragadammal and following
the same, on the death of Eswara Iyer, the  property  came  to  the  hands  of
Padmanaba Iyer  and his wife Maragadammal.  Since Padmanaba Iyer had no issues  
through Maragadammal, he married Dhanalakshmi in the year 1944 as  the  second
wife.  Maragadammal  died  intestate.  Thus, the property came to the hands of
Padmanaba Iyer.  In the year 1953, the plaintiff was born  to  Padmanaba  Iyer
and  his  second  wife  Dhanalakshmi  and  on the death of Padmanaba Iyer, the
property came to the hands of his wife Dhanalakshmi.    The  lands  originally
belonged to Temple.  Since the property could not be cultivated and in view of
the  fact that the plaintiff was a child, the immovable properties, which were
given to the plaintiff's family for the service rendered to temple and  the  +
share  in the pooja ri ght, which was being enjoyed by the plaintiff's family,
were entrusted to the defendants for being taken care of till the  plaintiff's
mother returns  to  the  village  with  the  plaintiff.  Then, the plaintiff's
mother took the plaintiff to outside the place and  on  return,  there  was  a
demand  and exchange of notices and on refusal, the plaintiff filed a suit for
declaration asked for and stated above.

        3.The suit was resisted by the  defendants  stating  that  the  landed
property  found  in the schedule to the plaint is an Inam land and belonged to
Varadarajaperumal temple, in which neither Easwara Iyer nor anybody, including
the plaintiff, could claim  any  right,  interest  or  title;  that  the  Will
executed  by  Easwara Iyer was not valid; that apart from that even as per the
allegation in the plaint, Padmanaba Iyer married Dhanalakshmi during the  life
time of his first wife and it was also illegal and patta has also been granted
in  favour  of  the temple, on enquiry and thus, the plaintiff cannot make any
claim over 'A' schedule landed properties and equally 'B' schedule pooja right
exclusively belonged to the defendants, in which  also  the  plaintiff  cannot
claim  any  right,  alleging that it was an ancestral one and under the stated
circumstances, the suit has got to be dismissed.

        4.The trial court has framed necessary issues and on trial,  the  suit
was decreed.  The aggrieved defendants have preferred an appeal and on appeal,
the judgment of the trial court was affirmed.  Hence, the second appeal at the
instance of the defendants.

        5.At  the time of admission, the following substantial question of law
was formulated for consideration:
        "Whether the suit is barred by limitation?"

        6.This Court has heard the learned counsel for the appellants and also
the respondent.

        7.The learned counsel for the appellant inter-alia would  submit  that
'A'  schedule  landed  property belonged to Varadarajaperumal temple, in which
the plaintiff cannot make any claim and patta has also been issued  in  favour
of  temple;  that  the  suit  was  also  barred  by limitation; that there was
exchange of notices, in which the right of the plaintiff was denied; and  that
specific  point  of time is prescribed in the Limitation law and the plaintiff
should have filed the suit within the time, but he has not  done  so.    Added
further  the  learned  counsel  that  insofar  as 'B' schedule pooja right was
concerned, the defendants have been enjoying the same all along, as of  right,
in which   the   plaintiff  cannot  make  any  claim.    But,  without  proper
appreciation of both factual  and  legal  positions,  the  courts  below  have
granted decree, which has got to be set aside by this Court.

        8.Heard   the   learned  counsel  for  the  respondent  on  the  above
contentions.

        9.It was a suit filed by the plaintiff, seeking declaration  of  title
in  respect  of  'A'  schedule  landed  property and 1/2 share in pooja right in
respect of 'B' schedule to the plaint.  It is not in controversy that the suit
land was originally belonged to Varadarajaperumal temple.  It is also  not  in
controversy  that  the  suit landed properties were under the enjoyment of the
defendants.  The specific case of the  plaintiff  is  that  the  property  was
actually  given  to the father-in-law of Padmanaba Iyer, by name Easwara Iyer,
for the service rendered by him  in  the  said  temple  and  he  has  been  in
enjoyment of  the  same.  In the year 1919, he executed a Will under Ex.A.1 in
favour of Padmanaba Iyer and Maragadammal.  It is pertinent to point  of  that
the  defendants  never questioned the truth, genuineness or validity of Ex.A.1
Will.  But, what were all contended was that the properties belonged to Temple
and Easwara Iyer had no right over the same.  Both the courts have pointed out
that there is sufficient evidence available, indicating the enjoyment of  same
by  Easwara Iyer and on his death, by Padmanaba Iyer and Maragadammal and even  
during the life time of Maragadammal,  Padmanaba  Iyer  married  Dhanalakshmi,
through whom  the  plaintiff  was  born.   On the death of Padmanaba Iyer, the
property devolved upon Dhanalakshmi.  Evidence has been recorded to the effect
that the said landed properties  were  handed  over  by  Dhanalakshmi  to  the
defendants,  taking  into  consideration the fact that the plaintiff was minor
then and that she could not carry on  cultivation  and  apart  from  that  the
plaintiff  could  not carry on pooja and she went away from the village and on
return, there was exchange of notices.

        10.It is pertinent to point out that even in the reply notice, it  has
been  specifically  admitted  by  the defendants that the property belonged to
Temple.  It is  also  pertinent  to  point  out  at  this  juncture  that  the
defendants  have  not  produced  any  material  to show that how they got into
possession of the land, except the mere allegations in the  written  statement
and  assertion through witnesses and they did not have any material except the
defence plea that they have been in possession on their own right.



        11.In the instant case, the contention put  forth  by  the  defendants
that  the  suit  was  barred  by  limitation has got to be stated only for the
purpose of  rejection.    The  possession  of  the  service  holder  was  only
permissive  possession  and  it cannot be adverse to that of true owner and in
the instant case, the plaintiff has not disputed the fact  that  the  property
belonged  to  Temple,  but  it  has  been  given to Easwara Iyer and he was in
enjoyment of same and thereafter, by his family and the plaintiff is  entitled
to be in possession and to continue the same.  The contention put forth by the
learned counsel for the appellants that they were appointed as Trustees by the
H.R.  &  C.E.  in respect of temple and therefore, they could contest the suit
would be of no avail, since there are specific allegations and proof that both
landed properties and the pooja right were handed over  by  the  plaintiff'  s
mother to  the defendants.  Under the stated circumstances, such a plea cannot
be raised by the defendants at any stretch of imagination.  Hence, this  Court
is  of  the  considered  opinion  that  all  the  contentions put forth by the
appellants' side have been rightly rejected by both  the  courts  below.    As
regards  the  question  of limitation, this Court is of the considered opinion
that the suit is not barred  by  limitation  for  the  reasons  stated  above.
Hence, the  second  appeal  fails  and the same is dismissed.  The parties are
directed to bear their costs.

Index :  Yes
Internet :  Yes

vvk

To
1.I Addl.  District Judge, Salem
2.District Munsif, Namakkal