G. Ramanujam, J.
1. This second appeal was fully heard on 24th August, 1981, and judgment was reserved to this date. When the judgment was about to be pronounced, the learned Counsel appearing for the appellant represents that his client has taken away the papers from him and has withdrawn his authority to appear in this case and as such1 he is retiring from this case. Whatever be the position, since the appeal has been heard and judgment has been reserved, I proceed to deliver the judgment.
2. The plaintiff in O.S. No. 197 of 1972 on the file of the District Munsif, Srivaikuntam in the appellant herein. He filed the said suit for declaration of his title to items 1 to 10 of the plaint first schedule and for an injunction against the defendant restraining them from interfering with the plaintiff's possession thereof. His case as set out in the plaint was as follows : He, the first defendant and one Rathinaswami Nadar, the husband of the second defendant, were brothers. They orally partitioned most of their common family properties in the year 1967 and in that partition, the plaint first schedule properties comprising 13 items were allotted to the plaintiff, the second schedule properties to Rathinaswami Nadar and the third schedule properties were allowed to the first defendant. From the date of the said partition, the parties have been in separate possession and enjoyment of the respective properties to the exclusion of others. The plaintiff had already sold items 11 to 13 of the plaint first schedule for necessity. In respect of items 4 to 10 in the first schedule, the plaintiff applied to the Tahsildar for subdivision and separate patta on 7th May, 1972, but the matter was not pursued thereafter. Though patta has not been issued for items 4 to 10 and patta has been issued only to items 1 to 3 of the first schedule, all those items were being enjoyed by the plaintiff by paying kist. Defendants 1 to 5 are acting in derogation of the plaintiff's title to items 1 to 10 from December, 1971, though they have no right, title or interest in the said items, and they have wrongly executed a gift deed on 20th August, 1964, in favour of the 6th defendant in respect of items 6 and 7 of the plaint first schedule. Since the defendants 1 to 5 have by their conduct cast a cloud on the plaintiff's title to items 1 to 10, the plaintiff is constrained to file this suit for declaration of title and for the consequential relief of injunction as against defendants 1 to 5 as also the 6th defendant which is a temple represented by its huqdar and the 7th defendant who claims to be its hereditary trustee.
3. The suit was resisted by defendants 1 to 5 raising the following contentions. They admitted the oral partition between the plaintiff on the one side and the first defendant and the defendants 2 to 5 on the other but resisted the suit contending that items 5 to 9 were not allotted to the plaintiff in that partition, that items 6, 7, and 8 of the plaint first schedule belonged to the 6th defendant and that items 5 and 9 were not allotted to the plaintiff that 43 cents out of item 5 was allotted to the first defendant and the balance of 1 acre was allotted to defendants 2 to 5 and that 17 cents out of 34 cents in item 9 which alone belonged to their family was allotted to the first defendant. Thus though the defendants 1 to 5 admitted the oral partition, they have denied the details of allotment put forward by the plaintiff in the suit.
4. The 6th defendant is an institution by name Kamattikottai Trivalagurusami Koil. Its case was that items 6 and 7 were allotted to the share of Manakavalamuthu, who is the plaintiff's paternal uncle, in a partition as between himself and the plaintiff's father, that Manakavalamuthu had made an oral gift of those items to the 6th defendant, that after the death of Manakavalamuthu, the 6th defendant has regularised the transaction by taking a sale deed as also a gift deed from defendants 1 to 5, who are the heirs of Arumugam, the brother of Manakavalamuthu, that ever since the said oral gift deed from Manakavalamuthu, the 6th defendant has been in continuous possession of the said items, that it has been paying kist for those items ever since the death of Manakavalamuthu, that the 6th defendant had raised a nandavanam for the use of the temple in one of the items, that the patta for the said items has also been granted to the 6th defendant, that apart from the nandavanam, the buildings at a total cost of about Rs. 5 to 6 lakhs have been erected on the said items and that, therefore, the plaintiff, at this stage can not claim any title to these items. The 6th defendant also contended that the 7th defendant is not a hereditary trustee and therefore he should not have been impleaded as a party defendant in the suit. As regards item 8, the sixth defendant's case was that the same has been gifted to it by one Muthu...in the year 1919, that ever since the said gift deed that item has been in its possession and enjoyment and that, therefore, the plaintiff cannot claim either title or possession as regards that item. The plaintiff fifed a reply statement wherein the plaintiff had reiterated his earlier position that items 6 to 8 and 9 have not been allotted to defendants 3 to 5, that the so-called temple for which items 6 and 7 had been said to have been alienated in only a Samadhi of one of the plaintiff's relations by name Shri Velgurusami, that it is only the members of the plaintiff's family who perform pooja and worship in the Samadhi, that the buildings in the Samadhi were constructed by the members of the plaintiff's family, that the 7th defendant has been appointed as a trustee by the members of the plaintiff's family for the said Samadhi and the 6th defendant is not a huqdar of the said Samadhi and therefore he came to represent the Samadhi in this suit. In that reply statement, the plaintiff has, however, admitted that Survey No. 293/1 and 294/1, which represent items 6 and 7 of the plaint first schedule originally belonged to two brothers, the plaintiff's father and Manakavalamuthu Nadar, but that Manakavalamuthu Nadar did not give any portion of the property of the Samadhi as alleged by the 6th defendant, that Manakavalamuthu Nadar died issueless, that all his properties devolved on the plaintiff and his brothers, that in the partition between the plaintiff and his two brothers these items have been allotted to the plaintiff, and that therefore, the sale and the gift deed executed by defendants 1 to 5 in favour of the 6th defendant on 20th August, 1964, are not valid and binding on the plaintiff as the defendants 1 to 5 cannot transfer more rights than those they themselves had in these items.
5. The 7th defendant who has been brought into the picture by way of an amendment of the cause title, filed a written statement contending that he is the huqdar of the 6th defendant temple by ancestral right, that Bagavathi Pandian who represents the 6th defendant in the suit is neither a huqdar nor the manager and that therefore, he cannot properly represent the temple in question.
6. The trial Court held that items 1 to 4 and 10 of the plaint first schedule belonged to the plaintiff, but as there was no resistance to the plaintiff's claim as regards those items by the defendants there was no necessity for declaring his title to those items and for issuing an injunction protecting his possession as regards those items. As regards items 5 and 9, the trial Court held that they have not been allotted to the plaintiff's share in the partition and, therefore, the plaintiff is not entitled to a declaration of title in relation to these items. As regards the remaining items 6 to 8, the trial Court, held that Velagurusami Koil, the 6th defendant, was in existence in items 6 to 8 of the plaint first schedule long prior to Exhibits B-14, B-15 and B-30, under which the temple got title to the properties. It also held that the plaintiff has failed to prove his title to item 8, which is 42 cents in Section No. 294/2. The trial Court also held that since the plaintiff has not been shown, to have been in possession of the properties on the date of suit he is not, in any event entitled to the relief of injunction sought far by him. In this view, the trial Court ultimately dismissed the plaintiff's suit with costs of defendants 1 to 6. On appeal by the plaintiff, the lower appellate Court substantially agreed with the findings of the trial Court and sustained the dismissal of the suit by the trial Court. In this second appeal, the concurrent findings rendered by the Courts below both on the question of title to the suit properties and on the question of adverse possession have been challenged.
7. Before proceeding to consider the appellant's contention in relation to the various disputed items of the suit properties. It is necessary to refer to the basic facts which gave rise to this litigation. The properties set out in the three schedules to the plaint as well as some other properties were originally owned by the plaintiff's paternal grand-father one Abathotharana Perumal. He had two sons Arumugham and Manakavalamuthu. Arumugam, died on 27th August, 1944 leaving his three sons, the plaintiff, the first defendant and one Rathnasamy, who is the husband of the second defendant. Rathnaswamy died leaving behind hurt his wife, the second defendant, and three sons, defendants 3 to 5'. Manakavalamuthu died issueless. There is no dispute between the parties that there was partition between the two brothers Arumugam and Manakavalamuthu. One of the question that arises in this case is whether items 6 and 7 of the plaint first schedule were allotted to Manakavalamuthu as contended by defendants 1 to 6. It is also not in dispute that there was a partition between the plaintiff and his two brothers, the first defendant and the husband of the second defendant. The main question that arises here is as to what are the properties allotted to the plaintiff. While the defendants 1 to 6 admit the factum of partition between the plaintiff and his two brothers, they dispute the plaintiff's claim that in that partition all the items 1 to 10 in the first schedule had been allotted to him. According to the plaintiff, in the oral partition between himself and his two brothers in the year 1957, 13 items fell to his share and since he has already sold items 11 to 13, he has restricted his relief only in respect of items 1 to 10. However, the defendants have not disputed the plaintiff's claim to title to items 1 to 4 and 10 and, therefore, there is no contest between the parties in relation to these items. Though normally the plaintiff will be entitled to a decree for declaration of title and for injunction, based on the concession of the defendants that these items had been allotted to the plaintiff in the partition, both the Courts below have not granted any relief as regards these items to the plaintiff, for the reason, that since there is no opposition to the plaintiff's claim as regards items 1 to 4 and 10, there is no necessity for the grant of any declaration of title in relation to those items, nor for the grant of an injunction. Thus the main controversy between the parties in this second appeal is confined only to items 5 to 9.
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8. Though the findings rendered above with reference to the evidence on record on the question of title put forward by the plaintiff to the items 5 to 9 are sufficient to dispose of the appeal on merits, since the counsel for the respondents raised a legal objection to the maintainability of the suit, that question also has to be considered. The 6th defendant raised a plea in the written statement that a person like the plaintiff who is admittedly out of possession cannot seek a declaration of title and the suit for mere declaration when the plaintiff is not in possession of the property has to be dismissed as not maintainable. This objection was reiterated before me by the learned Counsel appearing for the 6th defendant. The learned Counsel has placed reliance in support of this contention on the decision in Ram Sarma v. Ganga Devi : AIR1972SC2685 . In that case, the Supreme Court has specifically held that where the defendant is in possession of some of the suit properties and the plaintiff in his suit does not seek possession of these properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable since such a suit is hit by Section 42 of the Specific Relief Act. In this case, the plaintiff is not in possession of the suit property. Though the plaintiff has proceeded on the basis that he is in possession of the suit properties and claimed the relief of injunction, the evidence in the case completely establishes that the disputed items of the suit properties i.e., items 6 to 8 are in the possession of the 6th defendant. Since the plaintiff who is found to be out of possession has not sought for recovery of possession, as a consequential relief for the main relief of declaration of title, the suit cannot be maintained. Having regard to the said decision of the Supreme Court, the suit in this case has to be held not maintainable so far as the disputed items of the properties are concerned which are found to be in the possession of the 6th defendant.
9. The learned Counsel for the appellant however raised another legal contention. According to him, since the 6th defendant institution is only a Samadhi and the gift of items 6 and 7 in favour of the 6th defendant by defendants 1 to 5 should be taken to be invalid, as it is settled law that any gift to a Samadhi is invalid. The learned Counsel has referred to Saraswathi Ammal v. Rajagopal Ammal : 1SCR277 . In that case, the Supreme Court has specifically ruled, after referring to the decisions of Madras High Court where a gift for maintenance of tombs and Samadhis of private persons was regarded as valid under the Hindu Law, that they are unable to find any support from their knowledge and experience, for the statement of law laid down by the Madras High Court that though there are instances of Hindu Saints having been deified and worshipped, they were not aware of any practice of dedication of properties for such tombs amongst Hindus. Ultimately the Supreme Court held that a gift to a Samadhi cannot be valid. As against this, the learned Counsel for the respondents relied on the following decisions. Rathnavelu Mudaliar v. Commissioner for H.R. and C.E. : AIR1954Mad398 , Raghavendra Swami Mutt v. Board of Commissioners, H.R. and C.E. (1957) 1 A. W.R. 152 : A.I.R. 1957 A.P. 150 and Pichai v. Commissioner H.R. and C.E. : AIR1971Mad405 . In all these cases, the Courts have taken the view that even though in their origin, the institutions might have arisen from a samalhi, if it is found that it is a place of public worship, then it will have to be treated as a temple as defined in Section 6(20) of Tamil Nadu Act XXII of 1959. The learned Counsel for the appellant has distinguished these three cases, in my view very rightly, on the ground that these relate to the definition of a temple as defined in Madras Act XXII of 1953 and these decisions are not quite relevant for determining the question as to whether a tomb or Samadhi can be considered as a deity or juridical person so as to be an object of gift. However, I consider that it is not necessary to go into this question in detail for the plaintiff will not be benefited even if the gift deed under Exhibit B-15 is held to be invalid as one made in favour of the Samadhi. The gift deed was executed by defendants 2 to 5 and they have not challenged the validity of the gift. The plaintiff could succeed in challenging the gift only if he shows that the gift deed is invalid for the reason that the gift has been made in favour of the Samadhi. As already seen, the plaintiff who has specifically came forward with a claim that all the properties in the plaint first schedule had been allotted to him in the partition and having failed to establish the same, he is not entitled to question the allegation of the gift made, by defendants 1 to 5 in favour of the 6th defendant. Earned Counsel for the 6th defendant would contend that the 6th defendant has perfected title to the items 6 to 8 by adverse possession and therefore the plaintiff cannot, in any event recover possession of the properties even if he establishes his title to the property based on the oral partition of the year 1957. Since the plaintiff has not come forward with the prayer for recovery of possession and the plaintiff has also not established his title to the disputed suit properties, it is unnecessary to go into the question of adverse possession pleaded by the 6th defendant. In this view of the matter, the dismissal of the suit by both the Courts below has to be upheld.
10. The appeal, therefore, fails and is dismissed. There will, however be no order as to costs.