A/m. Athulyanadheeswarar Thirukkoil, Arakandanallor vs Thirugnanam and another

T. Raja, J.—The appellant herein filed a suit as plaintiff in O.S.No.892 of 1989, on the file of the Additional District Munsif, Thirukovilur,

seeking for permanent injunction restraining the respondents from trespassing into the suit property and for mandatory injunction to remove the

construction. At the time of admission, the following substantial question of law was framed for consideration:-

i) In the facts and circumstances of the case, whether the Courts below are right in ignoring the statutory records maintained as per the requirement

of the statue under Exs.A3,A4,A8 and A9?

Though notices were issued, no one appeared for the respondents/defendants.

Learned counsel appearing for the appellant/plaintiff submitted that the plaintiff filed a suit for declaration in respect of R.S. No. 168/2

admeasuring 17.50 acres. Since the defendants have encroached upon the above lands on 15.09.1989, raising superstructure, on coming to know

about the superstructure, a notice was sent by the plaintiff on 16.09.1989, calling upon the defendants herein to vacate and hand over the

encroached portion. Though the said notice dated 16.09.1989 was received and acknowledged on 18.09.1989, by the defendants, the plaintiff

filed a suit taking a stand that when the suit land belongs to plaintiff-temple, if the defendant is allowed to complete the construction, the other

encroacher will follow the same and, as a result, the temple will be left with no land for its use.

In respect of the claim, it has been contended by the learned counsel for the appellant that several documents from Exs.A1 to A7 were

produced before the trial Court, but the trial Court has not even seen those documents, including the temple register. Those documents were

maintained by the temple as per Section 29 (e) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Therefore, it was

submitted that, as per Section 29(e), every religious institution should prepare and maintain a register in such form to show the history of the

institution and the names of the past and present trustees and particulars as to the custom, if any, regarding succession to the office of trustee and

also particulars of all other endowments of the institution and of all title deeds and other documents. When such documents were properly

maintained by the temple, then such documents are admissible in evidence. But, ignoring all these vital documents, the learned trial court has non-

suited the plaintiffs case. However, when the matter was taken up before the first appellate court, the first appellate Court has also unfortunately

confirmed the findings of the trial Court and as a result, the appellant/plaintiff, left with no other option, has filed the present second appeal.

On that basis, it was contended that even after the judgment and decree passed by the trial Court, in an effort to support the case of the plaintiff,

when better documents, namely, Ex.A8, dated 18.05.1992 and Ex.A9, dated 15.08.1998, issued by the Tahsildar, were produced to show that

the suit lands have already been changed as temple poramboke lands, all these documents were lost sight of by both the Courts below. Even, the

revenue documents, namely, Exs.A8 and A9, produced before the learned trial Court were also completely ignored and as a result, a grave

injustice have occurred to the temple. Since such material irregularities have occurred, learned counsel for appellant sought for interference with the

judgment and decree passed by the Courts below.

In respect of her submission, she has also relied upon a judgment of this Court in Devaki Vs. Hindu Religious and Charitable Endowments

Department, Madras and others, . Further, it was submitted that even though the documents maintained by the plaintiff as per Section 29(e) of the

Act were produced before the first appellate Court, the first appellate Court without considering the same, erroneously accepted the findings of the

trial Court. Such approach of the learned first appellate Court has caused grave hardship to the plaintiff. Therefore, it was contended that the

infirmities committed by the both Courts below should be rectified by this Court by exercising its power u/s 100 CPC.

The suit was filed for declaration in respect of R.S.No.168/2 admeasuring 17.50 acres. This Court, while considering the second appeal, has

got a limited jurisdiction. This Court also aware of the general rule that High Court will not interfere with the concurred findings of the Courts

below. But, some of the crucial documents, namely Exs.A8 and A9 issued by the Tahsildar from revenue department clearly indicated the nature of

the lands and how the suit land is entitled to be used by the plaintiff temple. A mere reading of Ex.A8 issued by the Tahsildar dated 18.05.1992,

clearly shows that the suit land has already been changed as temple poramboke land. Another communication Ex.A9, dated 15.08.1998, shows

that the suit land has already declared as temple poramboke land. When these documents were produced before the first appellate Court, the first

appellate Court has also looked into those documents. But, having dealt with the nature of the documents, it shows that the suit property is temple

poramboke land, therefore, in my considered opinion, the first appellate Court should have interfered with the findings of the learned trial Court.

Further, a mere reading of Ex.A5, letter dated 11.03.1997, the Executive Officer, Town Panchayat Office, Aragandanallur, by addressing the

Executive Officer, Athulyanadheeswarar Thirukkoil, pointed out that there is a proposal under the National Rural Employment Scheme for laying

down a road for the facility of the devotees and sought to accord appropriate sanction to lay down the road via S.No.168/2 with an extent of

17.50 acres. Therefore, from the above, it is clear that unless the temple is the owner of the land, the revenue authority would not have asked for a

permission from the plaintiff temple to carry out the road construction work for the devotees. Even this document has not been properly

considered by the Courts below, while considering the claim of the plaintiff.

It is well settled by the Apex Court in Hero Vinoth (minor) Vs. Seshammal, that the High Court will not interfere with the concurrent findings of

the Courts below. But, it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material

evidence or acted on no evidence; (ii) the courts have drawn wrong interferences from proved facts by applying the law erroneously; or (iii) the

courts have wrongly cast the burden of proof. It not only refers to cases where there is a total dearth of evidence, but also refers to any case.

Applying the above ratio, this Court answers the substantial question of law by holding that the Courts below have completely ignored the

material evidence, carrying sufficient testimony to show that the suit property is a temple poramboke land, accordingly, without further dealing with

the merits of the case, this Court deems fit to remand the matter back to the First Appellate Court. As it is well settled law that the High Court has

no jurisdiction u/s 100 CPC to reassess and reappreciate by entering into the factual arena of the case, this Court, to meet the ends of justice,

while interfering with the findings of the first appellate Court, remit the matter back to its file for a fresh disposal on the basis of the documents

adduced by the plaintiff/appellant herein.

Needless to mention that, since the matter is pending for a quite long time, the same may be disposed as early as possible. In result, the judgment

and decree passed by the Courts below are set aside. The Second Appeal is disposed of in the above terms. No Costs.