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M/s. Sitalakshmi Charities, rep. through its Managing Trustee, Madurai v/s A. 1929 Tirunagar Co-operative House, Construction Society Ltd,Rep. Through its Secretary, Madurai

    S.A.(MD).Nos. 407 of 2014, 408 of 2014 & M.P.(MD)No.2 of 2014
    Decided On, 03 February 2016
    At, Before the Madurai Bench of Madras High Court
    By, THE HONOURABLE MR. JUSTICE C.S. KARNAN
    For the Appellants: D. Rajkumar, Advocate. For the Respondent: M.S. Balasubramania Iyer, Advocate


Judgment Text
(Prayer: The Second Appeals filed under Section 100 C.P.C. against the judgment and decree dated 30.08.2011 made in A.S.Nos.45 and 15 of 2011 respectively on the file of the Camp Sub Judge, Tirumangalam, confirming the Judgment and Decree dated 23.07.2010, made in O.S.No.600 and 599 of 2004 respectively on the file of the District Munsif, Tirumangalam.)

1. These second appeals are directed against the judgment and decree dated 30.08.2011 made in A.S.Nos.45 and 15 of 2011 respectively on the file of the Sub Judge, Tirumangalam, confirming the Judgment and Decree dated 23.07.2010, made in O.S.No.600 and 599 of 2004 respectively, on the file of the District Munsif, Tirumangalam.

2. The plaintiffs in O.S.No.599 of 2004 on the file of District Munsif, Thirumangalam, are the appellants in the second appeals. The respondent in both the second appeals is the plaintiff in O.S.No.600 of 2004 on the file of the District Munsif, Thirumangalam and the defendant in O.S.No.599 of 2004. The appellants herein have filed a suit in O.S.No.599 of 2004 for permanent injunction restraining the respondents herein from dismantling the superstructure or doing any act so as to interfere with the appellants' peaceful possession and enjoyment of the suit property. O.S.No.600 of 2004 was filed for permanent injunction restraining the appellant herein from using the suit property for any other purpose other than running a Maternity Home and Child Health Centre in the suit property.

3. The case of the appellant is that the first plaintiff is the charitable trust. Through the said trust, the first plaintiff is running an Educational Institution in the name of 'Sitalakshmi Girls Higher Secondary School and C.S.Ramachari Memorial Matriculation School' at Thirunagar. The second plaintiff is also a charitable institution running 'Sitalakshmi Maternity Home and Child Welfare Centre' at Thirunagar and C.S.R. Memorial Hospital at Madurai. Both the plaintiffs are doing service to the women in public. The defendant is the co-operative society formed for the development of Thirunagar area. The defendant society prepared a lay out earmarking various sites as per the condition laid out for the approval of the layout. The sites earmarked for charitable institution could not be allotted for other purpose. The suit site was earmarked for hospital and child welfare centre to serve the needs of the people in the locality. The suit site was handed over to the first plaintiff in the year 1966. The plaintiff spent enormous amount and constructed the building for running the hospital and the activities commenced from 1973. The plaintiffs collected only nominal charges from the public for the services. All the expenses are borne by the plaintiffs only. The complicated cases were referred to the Madurai hospital run by them. During the early period there was no hospital at Thirunagar and the people at large used the suit site hospital to treat them. But later, the conditions have changed and well qualified doctors are available at Thirunagar who have opened their own clinics in Thirunagar. The people also chose to go to private clinics for the treatment. Since there was poor response from the public and non-availability of qualified medical practitioners and para medical staffs to run the hospital, the plaintiffs were forced to discontinue the medical services. So they decided to run the nursery school in the said place. The proposed educational activities is to provide good quality education at nominal cost. The plaintiffs have decided to run the educational institution in the maternity hospital complex and they would revived their activities in the medical field as and when the conditions changed. So, for the purpose of running a nursery school, the plaintiff wrote a letter to the defendant on 13.03.2000 for providing water tap connection from the main line. Instead of providing the said facility, the defendant society wrote a letter on 25.03.2000 demanding certain clarification and the second plaintiff sent a reply dated 08.05.2000 answering the various questions raised by the defendant. Even after the said reply, the defendant did not provide water facility as required by them and tried to interfere with the possession of the property and threatened to dismantle the structure and to cause damage to the property. The plaintiffs are in possession of the property from the year 1966 and the defendants are trying to interfere with the possession of the property. In order to prevent the defendant from interfering with the possession of the property, the plaintiffs have no other alternative except to a suit for permanent injunction restraining the defendants his men and agents, subordinates form dismantling the structures or doing any acts so as to interfere with the plaintiff's peaceful possession of the suit property in any manner.

4. The case of the defendant as plaintiff in O.S.No.600 of 2004 is that they are the co-operative society, made for the development of the Tirunagar area. The suit land and other large extent was acquired by the government and handed over to the plaintiff's society. The plaintiff society prepared the lay out and the suit property was allotted as a site for the construction of maternity home and child health centre for the use of public at Thirunagar. The said site was allotted to the defendant for running the above said purpose. The defendant also gave an undertaking on 02.01.1973 that the suit site will be used for the allotted purpose of running a maternity home and child health centre only. The plaintiff society came to know that the defendants are making arrangements to run a kinder-Garden School in the suit property. Immediately, the plaintiff has sent an objection for the same on 25.03.2000. The defendant has no right to use the suit property for any other purpose except for running the maternity home and child health centre. Inspite of the objection made by the plaintiff, the defendant is adamant in making arrangements to run a school in the suit property. Hence, the plaintiff has no other alternative except to file the suit for the relief of permanent injunction restraining the defendant his men or agents and subordinates in any way using the suit property for any other purpose other than running the maternity home and child health centre in the suit property.

5. A joint trial was conducted in both the suits. 14 exhibits were marked on the side of the appellants herein and two witnesses were examined. On the side of the respondent herein, four exhibits were marked and one witness was examined. The trial Court, on 23.07.2010, by way of a common judgment, decreed the suit in O.S.No.599 of 2004 on the following terms:

(i) The plaintiff is permitted to run the school in the suit site till the end of this academic year i.e., upto May 2011;

(ii) Thereafter, the plaintiff within two months, the plaintiff shall convert the suit site to that of one for Maternity Home and Child Welfare Centre and started functioning the said hospital from August 2011;

(iii) Till such date, the defendant is restrained from interfering with the possession of the suit property. Further, if the plaintiff fails to comply with the above said condition, the defendant has every right to execute the decree and also claim damages according to Ex.B.1.

6. Similarly, the suit in O.S.No.600 of 2004 was decreed as prayed for without costs. The appellants herein preferred an Appeal in A.S.No.15 of 2011 against the judgment and decree in O.S.No.599 of 2004 and A.S.No.45 of 2011 against the judgment and decree in O.S.No.600 of 2004 before the Sub-Judge, Thirumangalam. On 30.08.2011, the appeal in A.S.No.15 of 2011 was allowed, granting a decree for permanent injunction in favour of the appellant for the purpose of running a Maternity Hospital and Child Welfare Centre alone and the appeal in A.S.No.45 of 2011 was dismissed. Aggrieved by the said judgment and decree, the present second appeals are filed by the appellants.

7. The second appeals are admitted on the following substantial questions of law.

i) Whether the decree awarded by the lower Court in favour of the respondents based on an unregistered gift deed is valid under the provisions of T.P. Act?

ii) Whether the Thirunagar Co-operative Housing Society has got locus standi to file the suit?

iii) Whether the suit filed by the Housing Society is barred by time?

8. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent.

9. Learned counsel appearing for the appellants would submit that in the written statement filed by the respondent in O.S.No.600 of 2004, the Trust had asserted its title to the suit property and also questioned the locus standi of the society to file the suit and further the Society had failed to pray for declaration and recovery of possession. It is further stated by the appellants that the housing society is not in possession and they have also not acquired the title to the property and they are only the promoters. Once the property is handed over, the housing society ceases to have any claim over the said suit property. He has further submitted that the appellants are running the school which serves an equal importance for public purpose, where children are benefited. He has further submitted that Ex.B1 indemnity bond dated 02.01.1973, is not applicable. The land was handed over as early as 1966 to the Trust. The Trust has put up the building and constructed a school as early as 2000 and the Society has no right to dictate terms and there is no bonafide intention for filing the suit. He has further submitted that the appellant / M/s.Sitalakshmi Charities allowed to run educational and allied institution in the campus - not restricted to Primary or Secondary School. They shall run schools of other Boards and other higher educational institutions if situation arises. They need not run the maternity consulting outlet that is currently running in the campus, where there is no response. There shall not be any hindrance to add additional building structure to the existing campus. Not to force to give any land from the existing campus. Not to pay any rent or arrears of rent. Housing Society in any manner shall not interfere and intervene in the day-to-day running of the school or educational activities. The society should be directed to provide amenities to the property.

10. Learned counsel for the respondent would submit that the applicant has no authority to convert the site according to their whims and fancies which was allotted for a specific purpose and they have contravened the bond executed by them and prayed for dismissal of the second appeals.

11. I have given anxious consideration to the arguments advanced on either side.

12. While coming to the first substantial question of law, Whether the decree awarded by the lower Court in favour of the respondents based on an unregistered gift deed is valid under the provisions of Transfer of Property Act, Ex.A1 is the letter dated 11.06.1966 for allotment of the suit property to the appellants for construction of Maternity Home and Child Welfare Centre for the benefit of Tirunagar Colony. Exs.A2 to A7 are the receipts for payment of current consumption charges. Exs.A8 and A9 are the receipts for contribution to the employees provident fund. Ex.A10 and A11 are the telephone bills. Ex.A12 is the requisition letter and Ex.A13 is the reply letter and Ex.A14 is the rejoinder letter. A perusal of all the documents would clearly show that the suit property was given to the appellants by way of free allotment for the purpose of running Maternity Hospital and Child Welfare Centre but initially the appellants have commenced the Maternity Hospital and was running the same in the suit property . Later, it appears that the project of Maternity Hospital was not successful due to various factors. Therefore, they decided to change the same as School. Once, the property is gifted, the respondent has no right to question the same and further there is no document to substantiate that the appellants have contravened the condition and further, there is no condition which stipulated that the property has to be used only for the purpose it was allotted. Further, the respondent is only a promoter and his service ends as soon as the property is handed over. Thereafter, he has no right to question the allotment and the way of usage of the property. It is relevant to point out that once the condition stipulated is not registered, the respondent has no right to question the same as per the decision of the Honourable Supreme Court reported in 2008 (4) SCC 494 (Anathula Sudhakar vs. P.Buchi Reddy) wherein paragraph No.21 reads a follows:

'Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for the possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.'

Therefore, the first substantial question of law is answered in favour of the appellants.

13. Insofar as the second substantial question of law is concerned, whether the respondent has locus stand to file the suit, the respondent is a co-operat

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ive society found for the development of the Tirunagar area. They have prepared a layout ear marked various sites and as per the conditions laid for the approval for the lay out. The site ear marked was for running a charitable institution. Thereafter, the property was handed over to the appellants as early as in the year 1966. Once, the land was alloted, there is no right for the society to question the same, after it was handed over. When the purpose for which, it was handed over is defeated then the respondent can question the same. Since the appellants was running a Maternity Home where there was no good response from the public and as there is non availability of qualified medical practitioners and para medical staffs, the service was discontinued for better usage and the appellants have rightly decided to run an Educational Institution. Therefore, there is no violation of any of the conditions. Further, there is no cause of action for the respondent to question the act of the appellants as the claim is ceased, once the possession is handed over to the allottee. Therefore, there is no locus stand for the respondent to file the suit. In view of the above said findings, the third substantial question of law does not arise for consideration. 14. In the result, the second appeals are allowed. The judgment and decree passed by the courts below are set aside, granting the relief sought for by the plaintiffs in O.S.Nos.600 & 599 of 2004. Consequently M.P.(MD)No.2 of 2014 is closed. No costs.
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