ARULMIGU MARIAMMAN KOIL PATTUDAIYAVIRUPPU AIKUDI TIRUVARUR Vs. DAVID MARIADOSS ST ADAIKALA MARY CHURCH PATTUDAIYAN IRAPPU MUKKUNTHANOOR POST KODAVASAL TALUK TIRUVARUR

JUDGEMENT

(1.) THE plaintiffs in O.S.No.240 of 1983 on the file of the District Munsif, Tiruvarur, are the appellants in the second appeal. THE suit was filed for recovery of possession of an extent of 8 cents out of 96 cents in R.S. No. 199/7 in Pattudaiyaviruppu Village, Aikudi Vattam, Kodavasal Taluk, Tiruvarur Munsif, on the following averments: THE plaintiff is a public temple under the control of the Tamil Nadu H.R. & C.E. Department and it is represented by the trustee appointed by the Deputy Commissioner, Nagai, of the H.R. & C.E. Department. THE suit property belongs to the plaintiff temple. THE property is in Patta No.321 and R.S.No. 199/7 and was in the possession and enjoyment of the plaintiff temple. About 10 years prior to the suit, the first defendant entered into the suit property and started enjoying by raising dry crops. Inspite of several requests and demands made by the trustee, the first defendant did not give up the property. THE plaintiff caused a notice to be issued on 6.6.1983 to the first defendant. Though he received it, he did not sent any reply. THE first defendant was liable to pay at the rate of Rs.3 per month. THEre was a tamarind tree also which would yield not less than Rs.25 per month. All these amounts the first defendant is liable to pay.

(2.) THE first defendant/first respondent filed a written statement contending inter alia as follows: THE suit property and other properties of a total extent of 2.48 acres of nanja, punja and natham jari and another extent of 66 cents of punja in another area were originally owned and enjoyed by one Yagappa Pillai. While in a sound disposing state of mind he executed a registered Will on 4.4.1910 bequeathing all his properties in favour of his wife Mariammal and daughter Anthoniammal alias Kitheriammal to be enjoyed by them for their life and in case of issue to Anthoniammal the properties were to be taken by such issue and in case Anthoniammal were to die issueless, the properties were to be taken by the persons in charge of local Adaikkalamatha Shrine. Anthoniammal died issueless about 50 years prior to the filing of the suit and the properties were taken over by the Shrine and since then the entire properties were in the enjoyment of the said Shrine, which was vested with and controlled by the Parish Priest, St. Xavier Church, Pathur, Koradacherry. THE old survey number for the property was R.S.No.227/V. THE plaint did not mention about the source of title to the plaintiff, Adaikkalamatha Shrine had been in possession and enjoyment of the suit property and had prescribed for title by adverse possession and in the house originally occupied by Yagappa Pillai (198/17) the Headmaster of the said school was residing. THE suit property was managed by one Dhiriam Pillai for nearly 25 years as a lessee of Rev.Fr. Anthony Palavarayar and the suit property is now in the possession of the Church, What apparently prompted the present trustee to file the suit is that in the sub division just prior to the filing of the suit by the Revenue Department, R.S.No. 199/7 was recorded as 96 cents. THE suit against this defendant in his individual capacity was improper and legally unsustainable. THEreafter, the second defendant/second respondent was impleaded as a party. THE second defendant also filed identical written statement and it is not necessary to repeat the same.

(3.) THE contention by the learned Counsel for the appellant that there has been no correlation made by the defendants has therefore no substance. THE suit property was the subject matter of the Will executed by Yagappa Pillai and the same had been given to the second defendant. As Yagappa Pillai's daughter died issueless, under the terms of the Will, the Church had to get the property. THE Courts below have referred to the oral evidence on the side of the plaintiff temple and found that the evidence falls short of the requirement for establishing title. In fact, P.W.1 has in his evidence said that he does not know as to how the suit property belonged to the temple. He has also admitted that the suit property was not the subject matter of lease. THE plaintiff has also not examined any independent witnesses to show their title and entitlement to the suit property. THE defendants have conclusively established their title and possession and in the absence of any acceptable material, it is not possible to interfere with the finding of fact reached by the Courts below. THE mere fact that patta for the suit lands stood in the name of the appellant/plaintiff will not prove their title.