GOPALAKRISHNAN Vs. BALASUBRAMANIAM

JUDGEMENT

(1.) AGGRIEVED over the judgment of the learned I Additional district Judge, Salem made in AS No. 193 of 1991, wherein the judgment of the trial court, namely the principal District Munsif, Namakkal, made in OS No. 1421 of 1986 was affirmed, the defendants have preferred this second appeal.

(2.) IT was a suit filed by the respondent/plaintiff, seeking declaration of title in respect of landed property shown in the'a'schedule and also declaration in respect of share in the pooja right of varadarajaperumal temple shown as'b'schedule and consequently, for partition. The plaintiff's case as could be seen from the pleadings can be stated shortly thus: The plaint described'a'schedule property originally belonged to one Appasamy Iyer @ Eswara Iyer and in the year 1919, he executed a will in favour of plaintiff's father Padmanaba Iyer and his wife Maragadammal and following the same, on the death of Eswara Iyer, the property came to the hands of Padmanaba Iyer and his wife Maragadammal. Since Padmanaba Iyer had no issues through Maragadammal, he married Dhanalakshmi in the year 1944 as the second wife. Maragadammal died intestate. Thus, the property came to the hands of Padmanaba Iyer. In the year 1953, the plaintiff was born to Padmanaba Iyer and his second wife Dhanalakshmi and on the death of Padmanaba Iyer, the property came to the hands of his wife Dhanalakshmi. The lands originally belonged to Temple. Since the property could not be cultivated and in view of the fact that the plaintiff was a child, the immovable properties, which were given to the plaintiff's family for the service rendered to temple and the share in the pooja right, which was being enjoyed by the plaintiff's family, were entrusted to the defendants for being taken care of till the plaintiff's mother returns to the village with the plaintiff. Then, the plaintiff's mother took the plaintiff to outside the place and on return, there was a demand and exchange of notices and on refusal, the plaintiff filed a suit for declaration asked for and stated above.

(3.) THE learned counsel for the appellant inter-alia would submit that'a'schedule landed property belonged to Varadarajaperumal temple, in which the plaintiff cannot make any claim and patta has also been issued in favour of temple; that the suit was also barred by limitation; that there was exchange of notices, in which the right of the plaintiff was denied; and that specific point of time is prescribed in the Limitation law and the plaintiff should have filed the suit within the time, but he has not done so. Added further the learned counsel that insofar as'b'schedule pooja right was concerned, the defendants have been enjoying the same all along, as of right, in which the plaintiff cannot make any claim. But, without proper appreciation of both factual and legal positions, the courts below have granted decree, which has got to be set aside by this Court.