Madras High Court
S.Pappammal vs The Commissioner on 3 February, 2021
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
A.S.(MD)No.27 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)No.27 of 2020
and
C.M.P.(MD)No.1246 of 2020
S.Pappammal ...Appellant/
Plaintiff
Vs.
1. The Commissioner,
O/o. Tamil Nadu Hindu Religious and
Charitable Endowment Board,
Nungampakkam High Road,
Chennai – 34.
2. The Joint Commissioner,
O/o. Hindu Religious and Charitable
Endowment Board,
West Chithirai Street,
Madurai.
3. The Fit Person,
Arulmigu Varatharajaperumal Temple,
Kasvanampatti Village,
Dindigul,
O/o. Arulmigu Gopinathaswamy Thirukovil,
Reddiyar Chathiram,
Dindigul. ... Respondents/
Defendants
PRAYER: This Appeal Suit is filed under Section 96 of C.P.C. against the
Judgment and Decree dated 19.08.2019 made in O.S.No.208 of 2014 on the file of
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A.S.(MD)No.27 of 2020
the learned Additional Sub Judge, Dindigul.
For Appellant : Mr.S.Madhavan
For Respondents : No appearance for R1 and R2
Mr.A.K.Baskara Pandian for R3
JUDGMENT
Aggrieved over the dismissal of the suit, the present appeal has been filed by the plaintiff. The suit was originally filed to declare the plaintiff as hereditary trustee of Arulmigu Varadaraja Perumal Temple, Kasavanampatti, Dindigul District and consequently, to restrain the defendants, their men and agent from in any way interfering with the administration of the said temple.
2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.
3. The brief facts, leading to the filing of this Appeal Suit, are as follows:-
(i) The suit is filed in respect of Arulmigu Varadharaja Perumal Temple, Kasavanampatti Village, Dindigul District. The suit temple dedicated to the worship of Arulmigu Varadharaja Permal. The temple was founded by one 2/9 http://www.judis.nic.in A.S.(MD)No.27 of 2020 Venchattiyan about 200 years ago. The founder Venchettiyan performed poojas and looked after the management of the temple till his life time. After the demise of the founder of the temple, his son Mr.Thirumalai Thasari and his grandson Mr.Ramasamy Thasari, inherited the right of management as hereditary trustee and accordingly, till their life time, they managed the temple. After the demise of Mr.Ramasamy Thasari, his son Rangasamy inherited the right of the management of Temple. After the demise of Mr.Rangasamy, his son Mr.Gopal Naicker inherited the right of the management of the temple. After the death of Gopal Naicker, his daughter Pappammal and her cousin brother Mr.Perumal Naicker were in the management, administration of the Temple and they performed pooja to the deity. Later, Mr.Perumal Naicker died as a bachelor leaving the right of management of the temple as hereditary trustee exclusively on the plaintiff.
Accordingly, the plaintiff is in management of the temple as hereditary trustee exclusively. The plaintiff filed an application before the second defendant under Section 63(b) of the HR&CE Act 1959 (Tamil Nadu Act 22 of 1959) to recognize her status as hereditary trustee. The said application was numbered as O.A.No.12 of 1999. Though the said application was dismissed on 20.11.1995, an appeal was filed against that dismissal order, before the Commissioner, along with the application to condone the delay, which was also dismissed. Aggrieved over the same, the suit has been filed to set aside the order of the first defendant. 3/9 http://www.judis.nic.in A.S.(MD)No.27 of 2020
(ii) The 3rd defendant disputed the same, contending that there is no relationship between Ramasamy Thasari and the plaintiff and even in the Settlement Proceedings under the Act 26/1948, Ramasamy Thasari was shown as temporary poojari. Further, in the enquiry conducted under the Tamil Nadu Minor Inam Abolition Act 30/1963, whether the plaintiff's predecessors participated in the enquiry or not and there is no evidence that the plaintiff was in management and administration of the temple and in possession of the property in dispute.
(iii) The trial Court framed six issues. On the side of the plaintiff, P.W.1 to P.W.3 were examined and Exs.P1 to P16 were marked. On the side of the defendants, one V.Balamurugan was examined as D.W.1.
(iv) The trial Court, having considered the issues, has non-suited the plaintiff mainly on the ground that the order of the first defendant is not challenged and no declaration is sought for in this regard and therefore, dismissed the suit, mainly on the ground that the question of hereditary trustee cannot be gone into the Civil Suit and only the Commissioner, under HR&CE Act, has jurisdiction to decide those issue. Aggrieved against the same, the present appeal has been filed.
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4. Heard the learned counsel for the appellant and the respondents.
5. It is the contention of the learned counsel for the appellant that the suit is filed under Section 70 of the Act, challenging the order of the Commissioner and mainly because the prayer, seeking to set aside the order of the Commissioner, is not included, the suit ought not to have been non suited and therefore, prayed for allowing the appeal.
6. The learned counsel for the respondents submitted that no declaration is sought for with regard to the order of the first respondent and therefore, the suit is not maintainable.
7. In the light of the above submissions, the points for consideration are a) whether the lower court is correct in non-suiting the plaintiff mainly on the ground that no prayer, to set aside the order of the first respondent, is shown in the relief column and b) whether the suit is filed under Section 70 of the HR&CE Act.
8. A perusal of the materials shows that though six issues have been framed by the trial Court as already indicated, the Trial Court dismissed the suit 5/9 http://www.judis.nic.in A.S.(MD)No.27 of 2020 mainly on the ground that no declaration is sought for in respect of cancelling the order of the first respondent. The trial Court further held that since the suit is filed for declaration declaring that the plaintiff is the hereditary trustee of the temple, the Civil Court has no jurisdiction to entertain the same.
9. It is not in dispute that the plaintiff filed O.A.No.12 of 1992 to declare her as a hereditary trustee. The application has been filed under Section 63 of the HR&CE Act. It is not in dispute that the above application was dismissed on 20.11.1995. Challenging the same, the plaintiff has filed an appeal before the Commissioner under Section 69 of the HR&CE Act along with the application to condone the delay. The Commissioner, while entertaining the appeal, dismissed the application filed to condone the delay and thereby, the order passed by the first respondent reached finality. Challenging the order passed by the Commissioner, the suit has been laid under Section 70 of the HR&CE Act. Therefore, this Court is of the view that merely because, the independent prayer is not sought for in the relief column, challenging the order of the Commissioner separately, the trial Court ought not to have non suited the plaintiff, as the very suit is filed under Section 70 of the Act, challenging the order of the Commissioner. Further, para-3 of the plaint makes it clear that the suit itself is filed under Section 70 of the Act seeking to set aside the orders of the first and second respondents 6/9 http://www.judis.nic.in A.S.(MD)No.27 of 2020 and a consequential declaration is sought to declare the plaintiff as hereditary trustee. Therefore, when the plaint averments mainly intended to cancel the orders passed by the authorities, it cannot be said that since no relief for cancellation of orders of the first and second respondents is sought separately in the relief column and the suit is not maintainable. The very suit is laid under Section 70 of the Act, challenging the orders passed under Sections 63 and 69 of HR&CE Act. In such view of the matter, the Judgment of the trial Court in non suiting the plaintiff is not sustainable in law. The trial Court, by giving much emphasis in Section 108 of the HR&CE Act, came to the conclusion that the Civil Court jurisdiction is barred to decide the issue with regard to the hereditary trustee.
10. It is to be noted that what was the challenge originally in the suit is the orders of the first and second respondents and mainly because no relief is sought for in respect of such orders, it cannot be said that the plaintiff is invoking civil jurisdiction to declare her as hereditary trustee for the first time. In such view of the matter, the Judgment of the trial Court is not based on proper application of law. The Trial Court has not even decided the other issues and simply non suited the plaintiff only on the jurisdictional issue. In such view of matter, the Judgment of the trial Court is not sustainable in law.
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11. Accordingly, the Appeal Suit is allowed and the Judgment and Decree dated 19.08.2019 made in O.S.No.208 of 2014 on the file of the learned Additional Sub Judge, Dindigul, are set aside. The matter is remitted back to the trial Court to decide the suit afresh as per law. The plaintiff is also permitted to make necessary amendment in the relief column, within one month from the date of receipt of a copy of this order. After issuance of notice, the Trial Court shall proceed with the suit in accordance to law and dispose of the same as expeditiously as possible, preferably, within six months from the date of amendment. No costs. Consequently, connected miscellaneous petition is closed.
12. The Registry is directed to send all the records to the trial Court immediately.
03.02.2021 Index : Yes/No Internet : Yes/No ogy To
1. The learned Additional Sub Judge, Dindigul.
2. The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
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