The plaintiff is the appellant. The plaintiff filed the suit for recovery of possession and for future mense profit.
2.The case of the plaintiff is that the plaintiff is a public religious institution and the plaintiff temple was constructed on the land belonging to the defendant and a Kalyanamandapam was also constructed in the open space by collecting contributions from the public and the temple was administrated by the a Committee of persons consisting of Railway employees and outsiders. The Kalyanamandapam was used for conducting festivals of the temple and on other days it was let out for marriage functions and the defendant did not object to the construction of the Kalyanamandapam and dispute arose among the members of the Committee and therefore, the Management of the temple was taken over by the HR & CE Department, the possession of temple was handed over and thereafter the possession of the Kalyanamandapam was also handed over to the defendant by the Executive Officer and it was submitted that the plaintiff is entitled to possession of the Kalyanamandapam with movables stated in 'B' schedule of the plaint and therefore, the suit is filed for the recovery of possession of 'A' schedule property, which is the superstructure known as 'Kalyanamandam' and for the delivery of 'B' schedule properties.
3.The defendant in the written statement claimed ownership over the temple as well as the Kalyanamandapam and denied the allegations of the plaintiff that the Kalyanamandapam was constructed by the public by raising contributions from the public. The defendant further contended that the plaintiff is not entitled to the reliefs as prayed for as they are not the owner of the Kalyanamandapam.
4.The plaintiff examined two witnesses and marked 18 documents and the defendant marked 5 documents and an Advocate Commissioner was appointed and he submitted his report and plan, which were marked as Exs.C1 and C2.
5.On the basis of the pleadings and evidence, the learned trial Judge framed the following issues:
1.Whether the suit as framed is not maintainable?
2.Whether the Court has jurisdiction to entertain the suit?
3.Whether the plaintiff is entitled to maintain the suit?
4.Whether the plaint has been properly valued and proper court fee has been paid?
5.Whether the suit is bad for want of Section 80 C.P.C notice?
6.Whether the plaintiff has cause of action?
7.To what relief the plaintiff is entitled to?
and an Additional issue was framed to the effect whether the Kalyanamandapam belongs to the plaintiff?
6.The learned trial Judge, while analyzing issue No.2 held that as per order dated 23.03.1991 the Court has held that it has no jurisdiction to try the case. Having decided that the Court has no jurisdiction to try the case, the trial Judge should not have given finding on the other issues and ought to have dismissed the suit on that ground. Nevertheless, the trial Judge has chosen to give findings on all the issues and found all issues against the appellant except the issue No.4 regarding the valuation of court fee.
7.The point for consideration in this appeal is whether the Kalyanamandapam is the property of the Appellant and they are entitled to the possession?
8.In this appeal, the appellant contended that the trial Court having held that it has no jurisdiction and the suit is not maintainable for want of Section 80 C.P.C. notice should not have given finding on other issues and ought to be dismissed the suit on those two issues. While answering Issue No.5 regarding Section 80 C.P.C. notice, it was contended by the learned counsel appearing for the respondent that there was no urgency for filing the suit and according to the plaintiff, the possession of Kalyanamandapam was taken from them in the year 1982 and the suit was filed only on 11.07.1984 viz., more than two years after taking over the properties of the respondent/defendant and hence, there was no urgency as pleaded by the appellant for filing the suit without Section 80 C.P.C. notice and though the notice under Section 80 C.P.C. notice was dispensed with by the Court, it was without notice to the respondent/defendant and therefore, they are not bound by the above order and the suit was not maintainable as statutory notice under Section 80 C.P.C was not given to them. The learned Sub Judge also agreed with the contention of the learned counsel appearing for the respondent and gave a finding against the plaintiff on that issue. In my opinion , having allowed the parties to contest the suit by adducing oral and documentary evidence, it would be traversy of justice if the suit is dismissed on that ground for want of Section 80 C.P.C notice. Therefore, in my opinion, though the statutory notice was not given, having regard to the subsequent events by allowing parties to contest the suit on merits, the Court should not have dismissed the suit on the ground of want of notice.
9.The learned trial Judge has considered the Additional Issue No.1 viz. whether the Kalyanamandapam belongs to the plaintiff, elaborately discussed the oral and documentary evidence, has found that the Kalyanamandapam belongs to the respondent/defendant and the plaintiff is not entitled to it. A perusal of the plaint would also make it clear that the Kalyanamandapam is the property of the defendant. Admittedly, the land belongs to the respondent and after getting the permission from the respondent, the temple was constructed and the temple was administrated and managed by a Committee of persons consisting of Railway officials and outsiders. In a portion of the temple a Kalyanamandapam was constructed and though it was contended by the appellant that the Mandapam was constructed by raising donations and contributions from the public, no document has been produced by the plaintiff to substantiate the same. Ex.A8 is the resolution of the Committee of Trustees of the temple and it is stated that the 'Hundial' will be opened for the Mandapam expenses. Ex.A10 is the letter issued by the respondent/defendant to the President of the temple demanding a nominal rent for the building. Ex.A18 is another letter by the respondent stating that sanction has been accorded at the request of the Executive Officer of the temple for allowing the Kalyanamandapam for conducting 'Navarathiri pooja' for a period of 20 days and rent was also fixed. Exs.A17, 18 and 19 were the letters by which the Kalyanamadapam was handed over to the appellant, for conducting 'poojas' by the respondent. These documents would prove that the Kalyanamandapam was under the control of the respondent and the appellant after getting necessary permission from the respondent and after paying the rent used the Kalyanamandapam and therefore, I hold that the respondent is the owner of the Kalyanamandapuam and the plaintiff is not the owner of the Kalyanamandapam.
10.In my opinion, the suit as framed is not maintainable. In the schedule property, the superstructure has been mentioned and the appellant wanted to recover the possession of the superstructure of Kalyanamandapam and there is no prayer for the recovery of the land in which the superstructure was constructed. As stated supra, the land on which Kalyanamandapam was constructed belongs to the respondent and it is admitted in the plaint in para 11 that the Committee members, who were aggrieved at the appointment of the Executive Officer, in collusion with the defendant appeared to have handed over possession of the Kalyanamandapam with movables. Therefore, even according to the plaint, it was not their case that by force Kalyanamandapam was taken over by the respondent/defendant and the Kalyanamandapam was handed over by the Committee members to the respondent/defendant. The respondent/defendant is the owner of the land and Kalyanamandapam, therefore, he is entitled to get the possession of the Kalyanamandapam from the persons, who were allowed to use the Kalyanamandapam. Therefore, in the absence of any right, the plaintiff is not entitled to claim recovery of possession of the Kalyanamandapam and therefore, on that ground the suit as framed is not maintainable and the plaintiff is not entitled to the relief of recovery of possession.
11.Therefore, I do not find any reason to interfere with the findings of the learned trial Court and the decree and judgment of the trial Court is confirmed and the appeal is dismissed without costs.
er To, The I Additional Sub Court, Tiruchi.