R. Rajendran vs Bagavar Singh

A. Selvam, J.—The concurrent Judgments and decrees passed in Original Suit No. 229 of 2002 by the Principal District Munsif Court, Valangaiman at Kumbakonam and in Appeal Suit No. 95 of 2006 by the Principal Sub Court, Kumbakonam are being challenged in the present second appeal.

The appellant herein as plaintiff has instituted Original Suit No. 229 of 2002 on the file of the trial Court for the relief of permanent injunction, wherein the present respondents have been shown as defendants.

In the plaint it is averred that the suit properties are the absolute properties of Venugopalaswamy Mutt and with regard to its establishment a partition deed has come into existence on 14.09.1946 between two brothers namely Venkatachalam and Kathaperumal, wherein clear recitals are found as to how the said Mutt is to be administered. The father-in-law of the plaintiff by name Krishnamoorthy is one of the sons of Venkatachalam and as a managing trustee of the Mutt mentioned in the plaint, he leased out the suit properties in favour of the plaintiff by virtue of lease deed dated 11.01.1990 and since then the plaintiff is in possession and enjoyment of the suit properties. Since the defendants have tried to interfere with the peaceful possession and enjoyment of the plaintiff over the suit properties, the present suit has been instituted for the relief sought for in the plaint.

In the written statement filed on the side of the defendants, it is averred that the plaintiff has not been enjoying the suit properties as a tenant of the Mutt mentioned in the plaint. As per partition deed dated 14.09.1946 only eldest member of the families of Venkatachalam and Kathaperumal has to manage the Mutt with the consultation of remaining members. Since the suit properties are not in possession and enjoyment of the plaintiff on the basis of alleged lease deed, he is not entitled to get the relief of permanent injunction and therefore the present suit deserves to be dismissed.

On the basis of the divergent pleadings made on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No. 95 of 2006 on the file of the first appellate Court.

The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the plaintiff as appellant.

At the time of admitting the present second appeal, the following substantial questions of law have been settled for consideration:

a) When the appellant has claimed and proved possession of suit property through the trustee was it correct for the lower appellate Court to hold that the possession of appellant not lawful?

b) Whether the decree and judgment of lower appellate Courts are liable to be set aside for not considering the relevant evidence both oral and documents available on record?

c) Whether entry is necessary for proving the tenancy rights of the appellant under the Record of Tenancy Rights Act (Act 10/69)?

The learned counsel appearing for the appellant/plaintiff has contended that by virtue of lease deed dated 11.01.1990, the suit properties have been leased out in favour of the plaintiff and since then he is in possession and enjoyment of the same as a lessee and further possession of the plaintiff has been clearly accepted by the father of the defendants in the legal notice dated 04.03.2002 and since the defendants have tried to interfere with the peaceful possession and enjoyment of the plaintiff over the suit properties, the present suit has been instituted for the mere relief of permanent injunction and the Courts below without considering the possession of the plaintiff have erroneously non-suited him and therefore the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with.

Per contra, the learned counsel appearing for the respondents/defendants has contended that the suit properties are the absolute properties of Venugopalaswamy Mutt and for the purpose of establishing the same, partition deed dated 14.09.1946 has come into existence, wherein it has been clearly stated that the entire Mutt as well as its properties have to be managed with the consultation of all the members of both the families by eldest member. But in the instant case, the father-in- law of the plaintiff by name Krishnamoorthy has had no right to execute lease deed dated 11.01.1990 and further the present managing trustee as well as Mutt have not been impleaded in the present suit and under the said circumstances the Court cannot come to a conclusion that the plaintiff has been enjoying the suit properties as a lessee of the said Mutt and the Courts below after considering the overall circumstances available in evidence have rightly non-suited the plaintiff and therefore the concurrent Judgments and decrees passed by the Courts below do not require any interference.

It is an admitted fact that the suit properties are the absolute properties of the Mutt mentioned supra. The specific contention put forth on the side of the appellant/plaintiff is that on 11.01.1990 his father-in-law by name Krishnamoorthy-managing trustee of the said Mutt has executed the lease deed which has been marked as Ex.A.1. Further in the legal notice dated 04.03.2002, possession of the plaintiff has been admitted.

The specific defence put forth on the side of the defendants is that since the plaintiff is the son-in-law of the said Krishnamoorthy, he has been enjoying the suit properties illegally and therefore he is not entitled to get the relief of permanent injunction.

As rightly pointed out on the side of the respondents/defendants, in the present suit the managing trustee as well as the concerned Mutt have not been impleaded as defendants. Since the present suit has been instituted on the basis of alleged lease deed dated 11.01.1990, the concerned Mutt and its managing trustee are necessary parties and without their presence the issue involved in the present suit cannot be decided and no quietus can be given to the parties. Under the said circumstances, this Court is of the view to set aside the concurrent Judgments and decrees passed by the Courts below and remit the matter to the file of the trial Court. Since the matter is liable to be remitted to the file of the trial Court, the substantial questions of law settled in the present second appeal need not be decided.

In fine, this second appeal is allowed without costs and the concurrent Judgments and decrees passed by the Courts below are set aside and Original Suit No. 229 of 2002 is remitted to the file of the trial Court. In the trial Court, the appellant/plaintiff is directed to implead the Mutt mentioned in the plaint and its managing trustee. After getting written statement and also after getting additional evidence to be adduced on either side, the trial Court is directed to dispose of Original Suit No. 229 of 2002 as early as possible. The Court fee paid on the appeal memorandum is ordered to be refunded to the appellant/plaintiff forthwith. The Registry is directed to send all the records to the trial Court immediately.