K.PALANISAMY vs ARULMIGHU PILLAIYAR TMEPLE

Court
Madras High Court

SA No. 1113 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03-11-2026
CORAM
THE HON'BLE MR.JUSTICE P. DHANABAL
SA No. 1113 of 2013 and M.P. No.1 of 2013
CNR: {HCMA010459632013}
1. K.Palanisamy S/o Karuppannanaicker
2. P.Chandira W/o Palanisamy
3. Pavayee W/o Periyagounder,
4. P.Duraisamy S/o Periyagounder
..Appellant(s)
Vs
Arulmighu Pillaiyar Tmeple
Owned By Kongu Vellalar Gounder
Community Represented by
1. Vemanagouner S/o Karuppagounder
2. K.Kandasamy S/o Karuppagounder
3. A.S.Palanisamy S/o Sengodagounder
4. Ponnusamy S/o Aththigounder
5. A.V.Manickam S/o Vemanagounder
6. P.Aththiyannan S/o Palaniyappagounder
7. Jalanthar S/o Varathappagounder
8. Kumarasamy S/o Rajagounder
9. Jegadeesan S/o Natesagouner
10.M.Gunasekaran S/o Muthusamy
11.Ramesh S/o A.K.Palanivel
12.V.Duraisamy S/o Varathappagounder
13.N.Paramasivam S/o Natesagounder
14.N.Karunamoorthi S/o Natesagounder
15.R.Sengottiyan S/o Ramasamygounder
..Respondent(s)
PRAYER : The Second Appeal has been preferred under Section 100 of Civil
Procedure Code as against the decree and judgment passed in A.S No.14 of
2011 dated 23.04.2013 on the file of the Subordinate Judge, Rasipuram
reversing the decree and judgment passed in O.S. No.92 of 2009 dated
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SA No. 1113 of 2013
07.06.2011 on the file of the District Munsif, Rasipuram.
For Appellant(s): M/s S.Sithirai Anandam
For Respondent(s): M/s. I.Abrar Mohamed Abdullah
[For R1 to 8 and R10 To 15]
R9 – Served – Not ready.
JUDGMENT
The Second appeal has been preferred as against the decree and judgment
passed by the Subordinate Judge, Rasipuram in A.S.No.14 of 2011
dated23.04.2013. The appellants are the defendants and the respondents, who
filed the Suit in O.S. No.92 of 2009 on the file of the District Munsif,
Rasipuram for the reliefs of declaration, recovery of possession and permanent
injunction. The said Suit was dismissed by the trial Court through a judgment
and decree dated 07.06.2011. Aggrieved by the said decree and judgment, the
Plaintiffs have preferred an appeal in A.S. No.14 of 2011 before the
Subordinate Judge, Rasipuram. The First Appellate Court allowed the said
appeal by setting aside the judgment and decree passed by the trial Court and
decreed the Suit as prayed for. Aggrieved by the said decree and judgment, the
present second appeal has been preferred by the appellants / defendants.
2. The case of the Plaintiffs before the trial Court is that the Suit property
belongs to a Pillayar Temple. In the said Suit property, there was a temple and
vacant lands in S.F. Nos.21-1/97 and 21-1/102. The said property belonged to
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SA No. 1113 of 2013
Kongu Vellalar Gounder community, Aayeepalayam, Athanur Village and the
same has been recognized by the Tahsildar through Proceedings in
K/K/
vz;/ 4260/96- dated 26.06.1996. Already a Suit in O.S. No.49 of 1987 was
gp
filed for declaration and permanent injunction and the same was decreed in
favour of the Plaintiffs. Therefore, the Suit property is exclusively belonged to
the Kongu Vellalar Gounder Community belongs to Aayeepalayam, Athanur
Village and the defendants have no right over the Suit property. While so, one
Periya Gounder purchased the property on the northern side of the Suit property
through a Sale Deed dated 20.07.1972 and thereafter the legal heirs of the
Periya Gounder sold the property to the defendants 1 and 2 through a Sale Deed
dated 07.11.2007 with false measurements and the defendants 1 and 2 have
encroached the property north-south 6 feet and east-west 38 feet, belongs to the
Plaintiffs. On 15.07.2009, a notice was issued to the defendants to handover the
possession of the property, but they failed to do so and they are also causing
disturbance to the Plaintiff’s possession and enjoyment of the property.
Thereby, the Plaintiffs filed the Suit.
3. The case of the defendants before the trial Court is that the Suit is not
maintainable. The defendants have a property on the northern side of the
Pillayar temple and there is a concrete road and Panchayaath drainage between
the lands of the Plaintiffs and the defendants. The defendants 1 and 2 purchased
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SA No. 1113 of 2013
rd
the property from the defendants 3 and 4. The 3 defendant’s husband and the
th
4 defendant’s father namely Periya Gounder purchased the said property from
one Rangaiya Gounder through a Sale Deed in the year 1972. The defendants
1 and 2 purchased the property as per the recitals of the 1972 Sale Deed. Since
the 1 and 2 defendants belongs to a different community, the particular
community people, in order to cause disturbance to them, have filed the Suit.
The rough sketch filed along with the Plaint is not correct. The averment that
the defendants 1 and 2 encroached the 228 sq ft. land is false. In fact, the
Plaintiffs have a land on the northern side of the Pillayar temple. Concrete road
and drainage. Therefore, there is no possibility to encroach the property as
alleged in the Plaint. The said pathway was approved by the Athanur Peruratchi
and the four boundaries mentioned in the property belong to the temple are not
correct. They omitted to mention about the concrete road and the drainage. The
property belongs to the defendants 1 and 2 is situated in S.F. No.21-1-99. The
prayers sought in the Suit and the property belongs to the defendants 1 and 2 are
different. There are no any Sale Deed or patta in favour of the temple.
Therefore the Plaintiffs are not entitled to any relief as prayed for in the Plaint
and the Suit is liable to be dismissed.
4. Based on the above said pleadings and after hearing both sides, the trial
court has framed the following issues for trial:-
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SA No. 1113 of 2013
Issues:
1. Whether the Plaintiffs are entitled to the relief of possession as
prayed for?
2. Whether the Plaintiffs are entitled to the relief of permanent
injunction as prayed for?
3. To what other reliefs, the Parties are entitled?
5. Before the trial court, on the side of the plaintiff, witnesses P.W.1 and
PW2 were examined and marked exhibits, Ex.A.1 to A3. On the side of the
defendants, witness D.W.1 to DW4 were examined and Ex.B1 to Ex.B.7 have
been marked. The Advocate Commissioner’s report and plan have been marked
as ExC.1 and Ex.C.2. The trial court, after evaluating the oral and documentary
evidences adduced on both sides and perusing the records, dismissed the Suit
through its judgment and decree dated 07.06.2011. Aggrieved by the said
decree and judgment, the Plaintiffs have preferred an appeal in A.S. No.14 of
2011 on the file of the Subordinate Judge, Rasipuram on various grounds.
5.1. The First Appellate Court has framed the points for determination as
to Whether the dismissal of the Suit of the Plaintiffs by the trial Court is
correct and whether the judgment of the Court warrants any interference.
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SA No. 1113 of 2013
6. After hearing both sides and perusing the records, the First Appellate
Court allowed the appeal by setting aside the decree and judgment passed by the
trial Court, through its judgment and decree dated 23.04.2013 and decreed the
Suit. Aggrieved by the said decree and judgment, the present second appeal has
been preferred by the appellants / defendants.
7. This Court, at the time of admitting the second appeal, formulated the
following Substantial Questions of Law .:-
(i) When the lower appellate Court reversing the judgment of the trial
Court is not incumbent upon it to give reason is not agreeing with the findings
of the fact and whether law is judgment of the lower appellate Court, which
has been rendered without following the correct procedure while reversing the
judgment of the trial Court, is sustainable in law ?
(ii) When the suit property has not been clearly described by the survey
number and extent thereof, whether the lower appellate Court is correct in
law in allowing A.S.No.14 of 2011 ?
(iii) Whether the lower appellate Court is correct in casting the onus on
the respondents to prove their case, especially, when it is for the appellants to
have come forward with a suit for declaration to prove their title to the
property ? and
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SA No. 1113 of 2013
(iv) Whether the lower appellate Court is correct in law in holding that
the appellants are entitled to recovery of possession on account of their failure
to state that there is a mistake in boundary description ?
8. For the sake of convenience and brevity, the parties herein are referred
as plaintiff and defendant, as referred before the trial Court.
9. The learned counsel appearing for the appellants would submit that the
respondents, who are the Plaintiffs, filed the Suit for declaration, recovery of
possession and for permanent injunction alleging that the Suit property belongs
to the temple, which belongs to the Kongu Vellalar Gounder Community,
Aayeepalayam, Athanur Village. While so, the appellants encroached the
portion of 6 feet x 38 feet in 228 square feet on the northern side of the property
and thereby, they filed the Suit for declaration, recovery of possession and
permanent injunction. The trial Court has correctly dismissed the Suit.
However, the First Appellate Court, without considering the facts in a proper
and perspective manner, set aside the decree and judgment passed by the trial
Court by allowing the appeal and decreed the Suit. In fact, the defendants 1 and
2 purchased the property from the defendants 3 and 4 through valuable
consideration through a Sale Deed dated 07.11.2007. In fact the predecessor of
the defendants 3 and 4 namely Periya Gounder purchased the property from one
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SA No. 1113 of 2013
Rangaiah Gounder through a Sale Deed in the year 1992. Thereafter, the
defendants 3 and 4 purchased the property and from the defendants 3 and 4, the
defendants 1 and 2 purchased the property for a good and valuable
consideration. There is a drainage and concrete road on the southern side of the
property of the defendants 1 and 2, that is, after the northern side of the
Plaintiffs’ property, there is a concrete road and on the northern side of the
concrete road, there is a drainage and on the northern side of the drainage, the
defendants purchased the property. Therefore, there is no possibility to
encroach the Plaintiffs’ property as stated in the Plaint. Therefore, the Plaintiffs
have filed the Suit only on the ground that the defendants 1 and 2 belong to the
different community and they purchased the property from Plaintiffs’
community people. Therefore, they filed the Suit. The trial Court after
considering the evidences in a proper and perspective manner, correctly
dismissed the Suit. However, the First Appellate Court, without considering the
evidences in a proper and perspective manner, decreed the Suit. Without
considering that the Panchayat formed a concrete Road on the northern side of
the Plaintiffs’ property and thereafter, a drainage was also constructed and after
the drainage, on the northern side, the defendants’ property is situated.
Therefore, without considering the same, the First Appellate Court, decreed the
Suit. The Plaintiffs failed to prove that the Plaint schedule property belongs to
the temple and there are no any title deeds produced by them and only based on
the patta granted to the temple, they filed the Suit beyond the property of the
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SA No. 1113 of 2013
Plaintiffs. Therefore, the judgment and decree passed by the First Appellate
Court are liable to be set aside.
10. The learned counsel appearing for the respondents would submit that
originally the Suit property belongs to the temple, which is belonged to the
Kongu Vellalar Gounder community, Aayeepalayam, Athanur Village and they
obtained patta to the Suit property. While so, the defendants 1 and 2, purchased
the property from the defendants 3 and 4 with false measurements. In fact, in
the year 1972, one Periya Gounder purchased the property from one Rangaiah
Gounder and thereafter, when the Sale Deed was effected in favour of the
defendants 1 and 2, they made false measurements in the Sale Deed and
claiming through the false measurements and based on the false measurements,
they have encroached the property of the Plaintiffs to an extent of 6 feet x 38
feet on the northern side of the Plaintiffs’ property and therefore, the Plaintiffs
filed the Suit. However, the trial Court without considering the evidences in a
proper and perspective manner, dismissed the Suit. Whereas, the First
Appellate Court, after considering the evidences in a proper and perspective
manner, correctly decreed the Suit by setting aside the judgment and decree
passed by the trial Court. Therefore, there are no substantial questions of law
involved in this case and there is no any illegality or perversity found in the
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SA No. 1113 of 2013
judgment and decree passed by the First Appellate Court. Therefore, this
second appeal is liable to be dismissed.
12. This Court heard both sides and perused the entire materials available
on record.
13. In this case, the Plaintiffs filed the Suit for declaration, recovery of
possession and permanent injunction stating that the Suit property originally
belonged to the Plaintiffs’ temple. The property situated in Natham Survey
No.21-1/97 to an extent of 0.0207.0 square metre and in Survey No.21-1/102 to
an extent of 0.0144.0 square metre, in which, on the northern side of the
property in S. No.21-1/97, the defendants encroached the east-west 38 feet and
north-south 6 feet in the total extent of 228 sq. ft.. The defendants denied the
alleged encroachment made by them and according to the defendants, they
purchased the property from the defendants 3 and 4 through a Sale Deed dated
07.11.2007 and between the Plaintiffs’ property and the defendants’ property,
there were cement road and drainage, thereby, it is not possible to encroach the
Plaintiffs’ property and thereby, the defendants denied the averments made in
the Plaint. Since the Plaintiffs filed the Suit for declaration, recovery of
possession and for permanent injunction, they have to prove their case through
sufficient evidences. In order to prove the case of the Plaintiffs, they examined
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SA No. 1113 of 2013
witnesses P.W.1 and PW2 and marked exhibits, Ex.A.1 to A3. On the side of
the defendants, witness D.W.1 to DW4 were examined and Ex.B1 to Ex.B.7
have been marked. The Advocate Commissioner’s report and plan have been
marked as ExC.1 and Ex.C.2.
14. On a careful perusal of the evidences adduced by the Plaintiffs, they
revealed that a particular community is claiming rights over the temple and the
land belonging to the temple. The Plaintiffs themselves admitted that the
northern side of the property belongs to the temple, which was originally
belonged to one Rangaiah Gounder. While the sale of the property in favour of
the defendants 1 and 2, the measurements were excessively mentioned.
Thereby, they claimed that the Plaintiffs’ property was encroached by the
defendants 1 and 2. The Plaintiffs filed the Suit for 207 square metres in
S. No.21-1/97 and 144 square metres in S. No.21-1/102. Ex.A.1 is dated
26.09.1996, the proceedings of the Tahsildar and as per the said Ex.A.1, the
property belongs to a Pillayar Temple. S.No.21-1/102 to an extent of 144
square metres was referred as a pathway and has been mentioned as a vacant
site. As per the order dated 26.09.1996, it has been mentioned that it belongs to
Kongu Vellalar samugam people. As per Ex.A.3, S. No.21-1/97, north-wouth
11.4 metres. While so, it is 37.06 running feet. The property in S.No.21-1/102
is in a triangle shape. However, in the description of property, it has been
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SA No. 1113 of 2013
mentioned as east-west 130 feet x north-south 41 feet. The total extent of the
property as per the records, is 207 + 144 square metres. When it was converted
into square feet, 207+144 = 351 x 10.76 = 3778 sq. ft. As per the measurements
given in the description of the property, 130 x 41 feet would come to 5330
square feet. When the documents showed that the property to an extent of 351
square metres belongs to the Plaintiffs, in the description of the property by
measuring running feet of 130 x 41 feet claiming relief for 5330 sq. ft, which is
contrary to the measurements mentioned in the documents.
15. Before the trial Court, an Advocate Commissioner was appointed and
he also inspected the Suit property and filed report and plan, Ex.C.1 and Ex.C.2.
The Plaintiffs filed the Suit for declaration, recovery of possession and
permanent injunction alleging that the defendants encroached the property to an
extent of 6 feet x 38 feet. While so, the property of the Plaintiffs has to be
measured and without measuring the property of the Plaintiffs, the
Commissioner measured the property of the defendants. Even according to the
defendants, there was a cement road between the properties of the Plaintiffs and
the defendants and immediately on the northern side of the cement road, a
drainage was constructed. But the learned Commissioner has only mentioned
about the drainage and failed to mention about the cement road. Therefore, the
Commissioner’s report does not contain real particulars of the properties. The
existence of the cement road has been admitted by the witnesses through DW4.
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SA No. 1113 of 2013
However, the Advocate Commissioner failed to mention about the existence of
cement road and failed to measure the property of the Plaintiffs. Further, as per
the Commissioner report, on the eastern side in S. No.101, a third party has
constructed a Wall and in S. No.103, another person has constructed a bath
room on the Northern side of the drainage, which are adjacent to the Suit
property. The Plaintiffs have not questioned the above said constructions made
by the third parties. The defendants purchased the property through a Sale Deed
with proper measurements, while the Plaintiffs restrained them from putting up
any construction, which is within the line of constructions made by the third
parties and thereby, the intention of the Plaintiffs would show that only to
harass the defendants, they have filed the Suit.
16. Moreover, the Plaintiffs have produced the rough sketch along with
the Plaint. In the rough sketch, they have not even mentioned the actual
measurement of the Plaintiffs’ property. The Plaintiffs have not produced any
other documents to show the actual extent of the property. The Plaintiffs have
also produced Ex.A.13, the Suit Register Extract copy, mentioning about O.S.
No.49 of 1987, wherein the property has been mentioned as S. No.21-1 to an
extent of 12 cents. The Plaintiffs themselves admitted that S.F. No.21-1/99
belongs to the defendants. As per Ex.A.10, the defendants purchased the
property to an extent of 38 x 37 feet through a Sale Deed dated 07.11.2007. The
Plaintiffs also failed to mention about the drainage canal, but the Plaintiffs are
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SA No. 1113 of 2013
claiming that the said drainage was constructed by them. The Plaintiffs have
also produced the parental deed for the defendants’ property. Ex.A8, Sale Deed
dated 14.11.1945, wherein it has been clearly stated that the Perumal Gounder,
son of Rangaiah Gounder of Aayeepalayam, Athanur Village, on the northern
side land of the temple, purchased a property to an extent of 14 x 20 muzham,
along with 3 thatched houses. As per Ex.A9, dated 20.07.1972, a Release Deed
was executed. In that Release Deed, the property of the Rangaiah Gounder was
mentioned as northern boundary. Thereafter, the defendants 3 and 4 sold the
property to the defendants 1 and 2 through Ex.A.10. As per 1972 document and
the patta granted by Tahsildar, the defendants 3 and 4 sold the property to the
defendants 1 and 2. Therefore, the defendants probabilised their defence that
they purchased the property through Sale Deed. The Plaintiffs, who filed the
Suit for declaration and permanent injunction, have to prove their case through
sufficient evidences. However, the Plaintiffs failed to prove that the entire
extent of the property mentioned in the Suit belongs to them. Per contra, the
defendants probabilised their defence through evidences that the property was
purchased by them through a Sale Deed dated 07.11.2007 and they have been
under possession and enjoyment of the property.
17. Further the defendants’ side witness DW4 has categorically stated
st
that the 1 defendant obtained permission for construction of the house and
admitted that they are maintaining the drainage. However, he denied that the
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SA No. 1113 of 2013
Town Panchayat has not constructed any drainage or cement road. Therefore,
the Plaintiffs failed to prove that they have right over the 130 x 41 feet extent of
land and the defendants 1 and 2 encroached the 38 feet x 6 feet extent of the
Plaintiffs’ property. The Plaintiffs have not even identified the property
properly with proper measurements. Therefore, they failed to prove their case.
The trial Court after considering the evidences, has correctly dismissed the Suit
by holding that the Plaintiffs failed to prove their case and the defendants 1 and
2 purchased the property through a Sale Deed and thereby, declined to grant
relief of declaration, recovery of possession and permanent injunction.
However, the First Appellate Court set aside the judgment and decree passed by
the trial Court and decreed the Suit by holding that on the northern side of
property in S. No.21-1/97, part of land in S. No.21-1/92, the road in S. No.21-
1/98 and part of the defendants’ property in S. No.21-1/99 are situated. The land
comprised in S. No.21-1/102 is existing in the shape of triangle on the land.
The Pillayar temple is situated in S. No.21-1/97. On the southern side of the
property comprised in S. No.21-1/97 and 21-1/102, there is a Street and the
Plaintiffs are not seeking possession of the entire property comprised in both the
survey numbers 21-1/97 and 21-1/102, but they are seeking only a small portion
of 228 sq. ft on the northern side of the above said survey numbers. When the
title of the Plaintiffs’ temple over S. No.21-1/97 and 21-1/102 is admitted by the
defendants and also substantiated through Ex.A.1 and Ex.A.2, and the total
extent of land available within the four boundaries given in the Suit schedule is
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SA No. 1113 of 2013
130 x 41 feet and the Plaintiffs are not seeking the entire extent of 130 x 41 feet,
but only a small portion within their own survey numbers and thereby, granted
relief as sought for.
18. The First Appellate Court failed to consider that the Plaintiffs have
not produced any title deeds to prove the title and there are no records to
substantiate their claim in respect of 130 x 41 feet. The First Appellate Court
has not given any adequate reasons for setting aside the judgment and decree
passed by the trial Court. When the First Appellate Court reversed the
judgment of the trial Court, it is incumbent upon it to give reasons for non-
agreeing with the findings of the trial Court and without correct procedure,
reversed the judgment of the trial Court. The Suit property measurements have
not been clearly described in the survey number and extent thereon and without
splitting the survey number, the total extent has been mentioned as 130 feet x 41
feet and the same has not been tallied with the measurements of the
Commissioner report. The First Appellate Court failed to consider that the
Plaintiffs, who filed the Suit for declaration, recovery of possession and
permanent injunction, have to prove the title irrespective of weakness of the
case of the defendants. Without giving proper identification of the Suit
property, the First Appellate Court is wrong in granting relief of recovery of
possession. In the description of the property, for the alleged encroached
portion, they have not given specific boundaries and thereby, the First Appellate
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SA No. 1113 of 2013
Court is not correct in granting decree, without giving reasons for setting aside
the judgment and decree passed by the trial Court. Without any clear
description in the property and without identifying the property properly, the
First Appellate Court has rendered perverse findings and granted decree by
setting aside the judgment and decree passed by the trial Court. Therefore, the
substantial questions of law are answered in favour of the appellants and as
against the respondents.
19. In view of the above said discussions, this Court is of the opinion that
the judgment and decree passed by the First Appellate Court are liable to be set
aside and the judgment and decree passed by the trial Court are to be restored.
20. In the result, the Second Appeal stands allowed. The judgment and
decree passed by the First Appellate Court in A.S No.14 of 2011 dated
23.04.2013 on the file of the Subordinate Judge, Rasipuram are set aside and
the judgment and decree passed by the trial Court in O.S. No.92 of 2009 dated
07.06.2011 on the file of the District Munsif, Rasipuram are restored . There
shall be no order as to costs. Consequently, the connected miscellaneous
petition is closed.
03-11-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
MJS
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SA No. 1113 of 2013
P.DHANABAL, J.
MJS
To
1. The Principal Subordinate Judge, Rasipuram.
2. The District Munsif, Rasipuram.
SA No. 1113 of 2013
03-11-2026
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