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Judgment
This Second Appeal has been filed challenging the Judgment and decree dated 28.09.2012 passed in A.S.No.16 of 2009 by the learned Additional District and Sessions Judge, Theni at Periyakulam, confirming the Judgment and decree dated 19.06.2009 passed in O.S.No.87 of 2004 by the learned Subordinate Judge, Uthamapalayam.
2. Brief Facts of the Case are as follows:
The suit properties, consisting of two items, were originally purchased by V.S. Kulandhaivelu Swamy Pillai under a sale deed dated 11.12.1939. Subsequently, on 03.07.1942, he executed a registered Dharma Settlement Deed, under which, out of the total extent of 9 cents, he established an institution known as "Sri Murugan Madalayam". He constructed a monastery therein and also established a Vinayagar Temple on the northern side of the property.
During his lifetime, V.S. Kulandhaivelu Swamy Pillai himself managed and administered the said institution as its trustee. The settlement deed provided that, after his lifetime, the institution should be administered by his eldest son, namely, Thangaraj alias Thangavelu Pillai, and his heirs. However, since Thangaraj alias Thangavelu Pillai predeceased his father, the next eldest son, namely, K. Sundaramurthy, took over the management of the Madalayam.
Thereafter, on 10.12.1984, the legal heirs of V.S. Kulandhaivelu Swamy Pillai executed a further Dharma Sasana Management Deed, under which the first defendant relinquished all his rights and connection with the trust. Consequently, K. Sundaramurthy, being the eldest surviving member of the family, has been managing and administering the affairs of the Madalayam.
The property belonging to the Madalayam is situated in Survey No. 857 and is bounded on the eastern side by Survey No.856/1A, belonging to the first defendant. According to the plaintiff, the first defendant had no right, title or interest over the first item of the suit property. However, without any manner of right over the said property, he is alleged to have executed a sale deed dated 29.03.2001 in favour of the second defendant by falsely altering the survey number. The second defendant, relying upon the said sale deed, is alleged to have trespassed into the first item of the suit property and unlawfully taken possession thereof. Hence, the plaintiff sought recovery of vacant possession of the first item of the suit property.
It is the further case of the plaintiff that the first defendant had leased out his property comprised in Survey No.856/1A to the third defendant for running a lorry workshop. Under the said arrangement, a right of pathway was granted over a strip of land measuring one cent situated in the middle of the first defendant's property, and the said right was subsequently transferred in favour of the third defendant. However, instead of using the said pathway, the third defendant was allegedly using, without any right, a strip of land measuring about 15 feet in width running north-south and adjoining the second item of the suit property. Therefore, the plaintiff sought a permanent injunction restraining the third defendant from encroaching upon or using any portion of the second item of the suit property as a pathway.
vi) During the pendency of the suit, an Advocate Commissioner was appointed and, upon inspection of the suit properties, submitted a report stating that the defendants 1 to 3 had put up various structures, including entrances, timber shop structures, a lathe, workshop petty shops and tin-roofed rooms, on the western, northern and eastern portions of the second item of the suit property. In view of the said subsequent developments, the plaintiff amended the plaint seeking a mandatory injunction directing the defendants to demolish and remove the said structures and to hand over vacant possession of the encroached portions of the second item of the suit property.
vii) The second defendant contested the suit by denying that any charitable activities, including Annadhanam or Nithya Pooja, had ever been conducted pursuant to the Dharma Settlement Deed dated 03.07.1942. According to the second defendant, the administration of the alleged institution had remained defunct for more than sixty years and, therefore, the plaintiff had no authority to execute any fresh management agreement in respect of the institution. It was further contended that the temple had been neglected and that the property had been encroached upon by unauthorised persons.
viii) The second defendant further contended that the first item of the suit property is valuable land situated near the Cumbum Bus Stand, having a market value of about Rs.2,00,000/- per cent, and that there was no Madalayam building in existence in the said property. It was also contended that the first defendant had received a sum of Rs.1,25,000/- on 27.05.1995 and executed a mortgage-cum-usufructuary deed in respect of the property and subsequently handed over possession on 27.05.1997. According to the second defendant, a timber shop had been functioning in the property from the year 1990 onwards.
ix) The second defendant claimed to be a bona fide purchaser for value under registered sale deeds dated 28.03.2001 and 29.03.2001 in respect of an extent of 6¼ cents. It was his further case that, pursuant to the said sale deeds, he had been in continuous and uninterrupted possession and enjoyment of the property for more than twelve years. On that basis, the second defendant also raised a plea of limitation and contended that the suit was liable to be dismissed.
The third defendant also contested the suit by denying the exclusive title of the first defendant over the property comprised in Survey No.856/1A. In support of his contention, the third defendant relied upon a usufructuary mortgage said to have been executed in the year 1993 in respect of an extent of 17 cents, a family partition deed of the year 1995, and a further mortgage allegedly executed in the year 1997 by one Usha Subramanian. It was contended that, pursuant to the said documents, the third defendant continued to be in possession and enjoyment of the entire extent of 17 cents. The third defendant further contended that the necessary parties had not been impleaded in the suit and that another suit in O.S.No.3 of 2001 was pending in respect of the subject matter.
Before the Trial Court, on behalf of the plaintiff, two witnesses were examined as PW.1 and PW.2 and Exs.A1 to A14 were marked. On behalf of the defendants, one witness was examined as DW.1 and Exs.B1 to B14 were marked.
Upon consideration of the oral and documentary evidence adduced by the parties, the Trial Court decreed the suit holding that the suit properties belonged to the plaintiff-Murugan Madalayam Trust and that the plaintiff was entitled to a declaration of its title and recovery of possession of the first item of the suit property. In respect of the second item of the suit property, the Trial Court granted a permanent injunction restraining the defendants, their men, agents and persons claiming under them from interfering with the plaintiff's peaceful possession and enjoyment of the said property. The Trial Court also granted a mandatory injunction directing the defendants to remove the entrance gates erected on the western and northern sides of the property and to remove the structures put up for the timber/carpentry workshop and the petty shop situated on the north-western side of the second item of the suit property.
Aggrieved by the Judgment and decree passed by the Trial Court, the 2nd defendant preferred A.S.No.16 of 2009 before the learned Additional District and Sessions Judge, Theni at Periyakulam. The First Appellate Court, upon re-appreciation of the oral and documentary evidence, dismissed the appeal and confirmed the Judgment and decree of the Trial Court.
Challenging the Judgment and decree dated 28.09.2012 passed in A.S.No.16 of 2009, the appellant/ 2nd defendant has preferred the present Second Appeal.
I have heard Mr. V. N. Arjun learned counsel appearing for the appellant and Mr. C. Mahadevan learned counsel appearing for the 1st respondent / plaintiff.
The above Second Appeal was admitted by this Court on 03.04.2013 on the following substantial questions of law:
i)Whether the suit filed by only one trustee without impleading all other trustees contrary to the suit notice Ex.A7 and the contents thereof, is maintainable?
ii) Whether the Appellate Court erred in relying on Section 10 of the Limitation Act, in deciding adverse possession in a suit filed by the Trustee quite against the specific provision in Section 10 that it is applicable only for a suit against the Trustee or against his legal representatives or assigns (not being assigns for valuable consideration) ?
The learned counsel appearing for the appellant/second defendant would submit that, contrary to the stand taken in Ex.A7 - Advocate Notices issued by all the trustees calling upon the appellant/ 2nd defendant to hand over possession of the property to the Trust, the suit has been instituted only by the 1st respondent/plaintiff, claiming to be the Administrator-Trustee. It is his contention that all the trustees ought to have joined in instituting the suit and that, in the absence of the other trustees as co-plaintiffs, the suit is not maintainable and is liable to be dismissed. In support of his contention, the learned counsel for the appellant relied upon the decision of this Court reported in 2017 (173) AIC 417 in V. Chandrasekaran and Others v. Venkatanaicker Trust and Others, wherein, at paragraph No.11, it has been held as follows:
11.We are, therefore, of the view that unless the instrument of trust otherwise provides, all co-trustees must join in filing a suit to recover possession of the property from the tenant after determination of the lease. No one single co-trustee, even he be a managing trustee unanimously chosen by the co-trustees, can maintain such a suit against the tenant without joining the other co-trustees. All co-trustees must be joined in the suit and if any one or more of them are unwilling to be joined in the suit as plaintiffs or for some reason or the other it is not possible to join them as plaintiffs, they must be impleaded as defendants so that all co-trustees are before the Court.”
He further contended that, in as much as all the trustees had not joined together in instituting the suit, the suit filed by the 1st respondent/plaintiff alone is not maintainable and is liable to be dismissed.
Per contra, the learned counsel appearing for the first respondent/plaintiff would submit that the first respondent, being the sole Administrator-Trustee and the head of the family, was competent to institute the suit for and on behalf of the Trust. In the present case, the first respondent/plaintiff, claiming to be the sole Administrator-Trustee of the Trust, has instituted the suit seeking recovery of possession in respect of the first and second items of the suit property. The first item comprises an extent of 0.3 cents in Survey No.857, while the second item comprises an extent of 0.6 cents in the same Survey No.857.
A perusal of Ex.A1-Sale Deed would show that one Kulandhaivelusamy had purchased an extent of 9 cents in Survey No.857. It is the case of the plaintiff that the said Kulandhaivelusamy established the Vinayagar and Murugan idols in a portion of the said property and founded the Trust known as "Sri Murugan Madalayam, Cumbum". He thereafter dedicated and settled the said property in favour of the Trust by executing a registered Dharma Settlement Deed dated 03.07.1942. The relevant clause in the said Settlement Deed specifically provides that, after the lifetime of the founder, his eldest son, Thangaraj alias Thangavelu Pillai, and his legal heirs should administer and manage the institution. However, the said Thangaraj alias Thangavelu Pillai predeceased his father. Consequently, the next eldest son, namely, K. Sundaramurthy, the present plaintiff/ 1st respondent, assumed the management and administration of the Trust and continued to administer the affairs of Sri Murugan Madalayam, Cumbum.
Subsequently, on 10.12.1984, the family members of Kulandhaivelusamy executed a Dharma Sasana Management Deed in respect of the Trust. Under the said document, the first defendant, who was one of the sons of Kulandhaivelusamy, relinquished his rights and connection with the Trust. Thereafter, the first respondent/plaintiff continued to manage and administer the Trust in his capacity as the Administrator-Trustee. The relevant recital in the said deed further provides that the first member, being the head of the family, should look after and administer the properties of the institution and that the other members of the family should extend their assistance and cooperation to him in such administration.
Thus, it is evident from the recitals contained in the document that the first respondent/plaintiff, being the head of the family, was designated as the sole Administrator of the Trust. The other family members were only required to assist and extend their cooperation in the administration of the Trust and were not appointed as trustees having independent powers of administration. Therefore, the contention of the appellant/second defendant that all the family members or trustees ought to have joined in instituting the suit cannot be accepted.
This Court, upon a careful consideration of the recitals contained in the relevant documents and the materials available on record, is of the considered view that the first respondent/plaintiff, being the head of the family and the sole Administrator of the Trust, was competent to institute the suit for recovery of possession of the suit properties. Hence, the suit instituted by the first respondent/plaintiff is maintainable.
The appellant/second defendant had contended before the Trial Court that he had acquired title to the suit property under Exs.A4 to A6, said to have been executed by the family members of Kulandhaivelusamy, the first defendant. However, upon examination of the said documents, the Trial Court found that the suit property comprised in Survey No.857 was not covered by Exs.A4 to A6. Consequently, the Trial Court held that the appellant/second defendant had not acquired any right, title or interest over the suit property under the said documents and rejected his claim.
The said finding of the Trial Court is supported by the documentary evidence available on record. The suit property continues to belong to the plaintiff-Trust. Further, the first defendant, being one of the family members of Kulandhaivelusamy, had already relinquished his rights and connection with the Trust under the Dharma Sasana Management Deed. Therefore, he had no subsisting right or interest in the Trust property so as to convey any valid title in favour of the second defendant. Consequently, the sale alleged to have been effected by the first defendant in favour of the second defendant also does not confer any right, title or interest over the suit property.
The learned counsel appearing for the appellant/second defendant, however, would contend that the suit property had never been in the possession and enjoyment of the plaintiff-Trust at any point of time and that, for more than 62 years, the property had been used by the local public. It is further contended that no Pooja or other religious activities had been conducted in the suit property and, therefore, the claim of the plaintiff-Trust over the property is liable to be rejected in view of the long continuous possession of 2nd defendant.
The second defendant alone has been in continuous possession and enjoyment of the suit property from the year 1992 onwards, during which period the second defendant has been running a wood lathe workshop therein. The Lower Court, having considered the aforesaid aspect had erred that the first respondent/plaintiff had instituted the suit for recovery of possession under Section 10 of the Limitation Act, 1963, read with Article 96 thereof, and that the suit is therefore barred by limitation and liable to be dismissed on that ground.
On going through the question relating to the starting point of limitation for adverse possession, it is clear that the period of limitation commences from the date on which the possession of the defendants becomes adverse to the plaintiff. There should be an open assertion of hostile title, coupled with exclusive possession and enjoyment by one of the parties, to the knowledge of the other, so as to constitute ouster.
In the present case, the appellant/second defendant asserted that he was the owner of the property by virtue of Sale Deeds marked as Exs.A5 and A6, under which he claimed to have purchased the property from the first defendant, who is the brother of the plaintiff and one of the sons of Kulandaiveluswamy. The first defendant under Ex.A3, the Dharmasasana Trust Deed dated 10.12.1984, the first defendant had relinquished his rights in the Trust. Hence, there is no question of the first defendant having any right to bequeath or sell the Trust property to the second defendant. The documents relied upon by the appellant/second defendant, namely, Exs.A5 and A6, also do not reflect the property comprised in S.No.857 measuring 0.9 cents, which is admittedly the Trust property. Therefore, the question of adverse possession does not arise.
The appellant/second defendant also raised the question of limitation with regard to the institution of the suit and contended that the Lower Court erred in entertaining the suit. It was contended that, in view of the exemption available to a trustee under Section 10 of the Limitation Act, 1963, r/w. Article 92, for recovery of trust property, no period of limitation would apply and, the trial Court erred in entertaining the suit and the suit ought to have been dismissed.
The second defendant had filed a partition deed dated 27.11.1995 executed among himself and his family members, wherein the property in which the wood lathe workshop is situated is described as forming part of the 'E' Schedule property, comprised in S.No.857 measuring 17 cents and S.No. 856/A measuring 17 cents. The Trial Court has clearly found that the property comprised in S.No.857 measuring 17 cents was not purchased by the defendant under Ex.A5 dated 28.03.2001 and Ex.A6 dated 29.03.2001. However, from the Commissioner's report, it is seen that the wood lathe workshop is situated on the southern side of the Vinayagar Temple.
Even according to the contention of the appellant/second defendant, the wood lathe workshop had been in existence in S.No.857 measuring 0.3 cents from the year 1990 onwards. However, the Trial Court has recorded a finding that the appellant/second defendant had not produced any documentary evidence to establish that he had been running the wood lathe workshop from the year 1990 onwards. Exs.A5 and A6 relied upon by the defendants are the sale deeds executed only in the year 2001. Thereafter, the first respondent/plaintiff issued Ex.A7 notice in the year 2001, and the suit was instituted in the year 2004. Therefore, the suit has been filed within the period of limitation.
As per Section 10 of the Limitation Act, 1963, r/w. Article 96 relating to recovery of trust property, the said provision applies where the property has become vested in a trustee for any specific purpose. In such circumstances, there is no period of limitation for instituting a suit for recovery of the trust property.
In the present case, the first respondent/plaintiff instituted the suit for recovery of possession after issuing Ex.A7 notice in the year 2001, upon acquiring knowledge that the second defendant had purportedly purchased the property from the first defendant under Exs.A5 and A6. It is also the case of the plaintiff that the second defendant had subsequently let out a portion of the property comprised in S.No.857 measuring 0.6 cents to the third defendant.
The Trial Court has recorded a clear finding with regard to the sale deeds relied upon by the defendant, namely, Exs.A5 and A6. Since S.No.857 is not reflected in the said sale deeds and the property covered under the suit is the property belonging to the plaintiff-Trust, the Trial Court rightly concluded that the suit property belongs to the Trust.
Therefore, insofar as the property comprised in S.No.857 measuring 0.3 cents, in which the wood lathe workshop is situated, is concerned, and with respect of 2nd item 0.6 cents in S.No.851, the first respondent/plaintiff had instituted the suit against the second and third defendants for recovery of possession, and the same is also within the period of limitation, in the year 2004 after issuance of Ex.A4 - notice called in the year 2001.
The contention that Section 10 of the Limitation Act, 1963, r/w. Article 92, is not applicable to the first respondent/plaintiff and that the suit entertained by the Trial Court is not maintainable, and the lower Court had erred in entertaining the suit and the suit has to be dismissed on the aforesaid aspect of Section 10 of the Limitation Act, 1963 r/w. Article 92 does not arise. Hence, the arguments of the appellant / 2nd defendant counsel is rejected.
Accordingly, the Second Appeal is answered against the appellant / 2nd defendant. Consequently, the Second appeal is dismissed, confirming the judgment and decree dated 28.09.2012 passed in A.S.No.16 of 2009 by the learned Additional District and Sessions Judge, Theni at Periyakulam, which confirmed the judgment and decree dated 19.06.2009 passed in O.S.No.87 of 2004 by the learned Subordinate Judge, Uthamapalayam. There shall be no order as to costs.