Andhra HC (Pre-Telangana)
Sri Ramalingeswara Swamy Deity vs Peteti Purushotham (Died) By Lrs. And ... on 27 August, 2004
Equivalent citations: 2004(6)ALD263, 2004(6)ALT344
Author: Bilal Nazki
Bench: Bilal Nazki
JUDGMENT
Bilal Nazki, J
1. Two suits being O.S. Nos. 24 and 25 of 1980 were decided by a common judgment by the Trial Court. Only one appeal has been filed against the judgment and decree in O.S. No. 24 of 1980 by the plaintiffs, whose suit was dismissed by the Trial Court.
2. In the first instance, we will deal with O.S. No. 24 of 1980. The facts which lead to filing of this suit are that a deity sought recovery of possession of plaint schedule properties and also ejection of Defendant Nos. 1, 3 to 5, 7 to 10 and 12 to 17. Some of the defendants died during the pendency of the appeal and their legal representatives were brought on record by separate orders on different dates.
3. The suit was filed on the ground that 'Sri Ramalingeswara Swamy' of Kopalle was a deity and the properties mentioned in the schedule, belonged to the deity. At the time of Inam settlement in 1959, these properties were in possession of one Peteti Veerabhadrudu, the then de facto manager of the deity, who was also rendering service of 'Archakatvam' in the said temple. The land had been granted to the deity and deity was in possession of the properties through the de facto manager. Said Veerabhadrudu had no independent right of his own with respect to the property except that he was managing the property as the manager of the deity. The deity was therefore entitled to recover possession of property. The property was held by the successors of Veerabhadrudu, who were Defendant Nos. 1, 4, 8 and 9 through the de jure trustees appointed by the competent authority. The Defendant Nos. 1, 4 and 8 are presently managing the properties being the 'Archakas' in the temple. Defendant No. 9 was the mother of 8th defendant who was in possession of the part of the suit property. The Assistant Commissioner of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments, West Godavari, for the first time, appointed trustees on 18.7.1970 and subsequently one of them had been elected as Managing Trustee. The Deputy Commissioner of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments, Kakinada appointed G. Ramakrishnam Raju as Executive Officer on 21.10.1971. The Board of Trustees passed resolutions on 7.1.1971 and 10.7.1973 that a suit should be instituted for recovery of the suit property and also for rendition of accounts by the de facto manager and 'Archakas' i.e., Defendant Nos. 1, 4 and 8. The Executive Officer authorized the plaintiff to initiate proceedings in Courts.
4. The plaintiff issued notice to defendants on 16.7.1973, asking them to deliver the possession held by Defendant Nos. 1, 4, 8 and 9 and some of it was leased out by them to other defendants. The defendants sent a reply stating that the lands were personal grants burdened with 'Archakatvam' service. The lands did not belong to the deity. They were rendering service and cannot be removed from possession of the properties and a suit had already been filed being O.S. No. 16 of 1918 and the appeal in A.S. No. 124 of 1919 was filed against the judgment in the suit, which ended in a compromise. That decree recognized that the grant was personal grant burdened with service. Thereafter, the defendants were asked to contribute and they filed Writ Petition No. 1137 of 1970 before the High Court of Andhra Pradesh. The High Court, relying on the judgment in the suit and appeal, held that the contribution was not leviable. In view of these judgments, the plaintiff could not claim the property. Though the defendants claimed that the suit filed in O.S. No. 16 of 1918 was collusive, that suit was not collusive.
5. Defendant No. 1 filed written statement denying that the property belonged to the deity. He claimed that Veerabhadrudu and his decedents were treating the plaint schedule property as the one granted to them for rendering 'Archakatvam' in plaintiff temple. Families of 'Veerabhadrudu' were hereditary 'Archakas' of plaintiff temple. The plaint schedule property is 'Archakatvam Service Inam' and was never intended or meant for the general management and up keep of the plaintiff temple. Neither Peteti Veerabhadrudu nor his successors were ever de facto or de jure managers of the temple. Defendant Nos. 1, 4 and 8 and their predecessors in title were entitled to enjoy the entire income of the temple subject to proper performance of 'Archakatvam' service. They were not bound to render accounts to anybody. When he and his brothers were minors, O.S. No. 16 of 1918 was filed before the Subordinate Judge at Eluru. The 4th defendant Kamaiah, the 8th defendant's father who was the husband of 9th defendant Veerabhadrudu and their father Subba Rayudu filed the suit under Section 92 of the Code of Civil Procedure (C.P.C), seeking for the removal of the defendants therein from the office of the trusteeship of plaintiff temple. The suit was filed on permission , from Collector under Section 92 of C.P.C. against Kallakuri Narsimham who was the elder brother of the then Village 'Karnam', Alluri Venkataraju, Kanumuri Narasimharaju a close relative of Executive Officer, who filed the present suit.
6. A written statement came to be filed in O.S. No. 16 of 1918 by the defendants, claiming that the plaint schedule property was 'Archakatvam Service Inam' and the defendants therein and their ancestors had been enjoying the property as 'Archakas' from times immemorial. The defendants also asserted their right to enjoy the entire income accruing from the suit land. Specific issues were framed in that suit. The plaint schedule property of this Suit was shown as Item Nos. 1 to 3 of the plaint schedule in O.S. No. 16 of 1918. The 15 acres of land, which was intended for the purposes of 'Kalyanotsavam' was not included in the earlier suit. The Court, in O.S. No. 16 of 1918, held that the plaint schedule properties were granted for the sole performance of 'Archakatvam' service by the 1st defendant and his family and they were not intended for the general management of the suit temple, as contended by the plaintiff. The Court also found that the defendants in that suit were not the managers of the said temple, but were 'Archakas'. In the appeal to the High Court', a compromise was effected and the suit was disposed of in terms of the compromise. Then a reference had been made to the judgment, in Writ Petition No. 1137 of 1970, by which the defendants were recognized as 'Archakas'. Defendant No. 11 also filed Written Statement.
7. On the basis of these pleadings, the following issues were framed:
"1. Whether the plaintiff has title to the plaint schedule property ?
2. Whether Peteti Veerabhadrudu was the trustee or de facto Manager of the plaintiff institution at the time of inam settlement ?
3. Whether the Judgment and decree in O.S. 16/1918 on the file of the Sub-Court, Eluru and the compromise arrived at in the appeal A.S. No. 124/ 19 were obtained by collusive and not binding on the plaintiff ?
4. Whether the decree in O.S. No. 16/1918 and A.S. No. 124/19 referred to above, does not operate as res judicata ?
5. Whether the Defendants 1, 2, 8 and 9 have perfected their title by adverse possession ?
6. Whether the judgment in W.P. No. 1137/70 on the file of the High Court is not binding on the plaintiff ?
7. Whether the suit is barred by time ?
8. Whether the suit is not properly valued ?
9. Whether the Court fee paid is correct ?
10. Whether the 11th defendant is necessary party to the suit ?
11. To what relief ?"
8. Issues 1 to 4 were decided against the plaintiff. Rest of the issues were decided against the defendants and ultimately the suit was dismissed.
9. The main plea taken by the defendants in the suit was that the suit was hit by res judicata because of the judgment and decree in O.S. No. 16 of 1918. The plaintiff-appellant on the other hand contended that the decree in O.S. No. 16 of 1918 and subsequent decree in appeal A.S. No. 124 of 1919 by the Madras High Court, would not operate as res judicata, as plaintiff was not a party and issue of title had not been decided in O.S. No. 16 of 1918. The respondents who are defendants, also claimed that the plaintiff had not proved his title to the property in dispute. In the light of these assertions, the only two questions which will have to be answered by this Court are - whether the plaintiff had title and whether the suit in O.S. No. 16 of 1918 was barred by res judicata. Another contention which has to be gone into and which is raised by the appellants is that the defendant had lost the interest whatever he had in the property by virtue of provisions of the Endowments Act of 1987.
10. We would first deal with the question of res judicata. The plaintiff claimed in the plaint that the Defendant Nos. 1, 4 and 8 were archakas in the temple as de facto Managers and for the first time, the Assistant Commissioner of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments, West Godavari District, appointed trustees by an order dated 18.7.1970. The Board of Trustees passed resolutions on 7.1.1971 and 10.7.1973 that a suit should be instituted for recovery of properties of Sri Ramalingeswara Swamy temple and also for rendition of accounts by the de facto Managers-Archakas - Defendants No. 1, 4 and 8. Thereafter a registered notice was given, which was replied to by defendants, in which they took a plea that the matter stood concluded, by the judgment in O.S. No. 16 of 1918 and in appeal A.S. No. 124 of 1919 and also by a judgment in Writ Petition No. 1137 of 1970, decided by the High Court of Andhra Pradesh. The plaintiff contended in his plaint that the suit O.S. No. 16 of 1918 was collusive and the decree and judgment, which was result of a compromise in A.S. No. 124 of 1919, was not binding on the plaintiffs. Similarly, the decision in Writ Petition No. 1137 of 1970 does not bind the plaintiffs, as they were not parties to the writ petition. Although these pleas were taken in the plaint, no relief was claimed for declaration that the decree obtained by the defendants in O.S. No. 16 of 1918 and appeal A.S. No. 124 of 1919 were collusive.
11. In the light of the factual situation, it will have to be seen whether the suit was barred by res judicata. The plaintiff claims the land by way of ownership. He also contended that the Assistant Commissioner of A.P. Charitable and Hindu Religious Institutions and Endowments, West Godavari District, for the first time, appointed trustees on 18.7.1970. The suit in O.S. No. 16 of 1918 was filed by five plaintiffs, who claimed that they were worshippers of 'Sri Ramalingeswara Swamy Temple' of Kopalle. The ancestors of the defendants in the present suit i.e., O.S. No. 24 of 1980 were defendants in O.S. No. 16 of 1918. The suit property which is subject-matter of O.S. No. 24 of 1980 was the subject-matter of suit in O.S. No. 16 of 1918 and there is no dispute about that. In the suit in O.S. No. 16 of 1918, it was claimed that the defendants therein had been merely performing the 'Dhoopam', 'Deepam' and 'Nivedyam' in the said temple, but have neglected the repairs of temple and performance of 'Kalyana Utsavam' and many other things and by mis-management, the defendants therein had rendered themselves unfit to manage the suit temple, therefore they were liable to be removed from the office of de facto managers. A prayer was also made to appoint new trustees and appointing a team of new trustees for the temple properties. Collector has given permission to file the suit on 18.1.1918.
12. In the written statement, the defendants had contended that the 1st defendant was the hereditary 'Archaka' of the temple and the grant of wet land of Ac.21-59 cents was 'service inam' of the suit temple and was never intended for general management and upkeep of the temple. The 1st defendant and his ancestors had been enjoying the land as archakas from the times immemorial. The defendants' were never de facto or de jure managers of the suit temple. The defendants were entitled to enjoy the entire income of the land without rendering any account to anybody subject to the proper performance of 'Archakatvam' service. In this suit i.e., O.S.16 of 1918, Eight issues were framed. One of the issues was, "whether the defendants were de facto or dejure managers of the said temple and not mere archakas." The Trial Court found that the schedule lands were granted for the sole performance of 'Archakatvam' services by the 1st defendant and his family and they were not intended for the general management of the suit temple as contended by the plaintiffs. Suit was ultimately dismissed. Appeal was taken to the High Court by the plaintiffs therein. That appeal was decided by a Division Bench of the High Court of Madras on 30.1.1920. The High Court, on a compromise, after recording the satisfaction that the compromise was advantageous to the charity and also to the Respondents No. 2 to 5 who were minors at that time, recorded the decree in the following terms:
"1. That Kalidindi Venkatarama Raju garu B.A., B.L., High Court vakil, Kshatriya, resident of Pedupulluru Bheemavaram Taluk be and hereby is appointed the trustee of the suit temple of Sri Ramalingeswara Swami varu at Kopalle village.
2. That the 1st respondent (1st deft.) or his descendants or their representatives shall utilize the produce from Ac.21-59 cents of inam wet land of Kopalle Village made up of Ac.5-25 cents re-Survey No. 110, of Ac.6-36 cents No. 146 and of Ac.9-98 cents No. 226, and forming Items 1, 2 and 3 of plaint Schedule A (attached to the decree of the lower Court) for the expenses of Dhupa, deepa Nivedyams of Sri Swami Varu and for their remuneration for Archaka service.
3. That the respondents (defts.) shall pay to the Trustee on the 1st day of March of each year at the rate of Rupees 50 (fifty) per annum for the temple repairs, Ustavams etc., from out of the produce realized out of the said Items 1, 2 and 3 of the plaint Schedule A.
4. That if, besides the said Items 1, 2 and 3 of the plaint Schedule A either the I and set apart for Kalyana Ustavam which was put in possession of the village Munsif and pettandars of Koppalle Village at the time of Inam Settlement and which is now in the possession of them, of their descendants and of others, or any other property should be made over to the temple, the Trustee shall take possession of all such property and apply the incomes thereof for the respective purposes and for the improvement of the temple.
5. That each party shall bear their own costs in this appeal, that the respondents (Defts.) be at liberty to draw the amount deposited by the applts. (Plffs.) for the costs of the respondents (Defts.) in the lower Court and that both the parties do abide by the decision of the lower Court in other respects."
Though the suit was hotly contested, a compromise decree was passed by a Division Bench of the High Court, headed by the then Chief Justice of High Court, and while the plaintiffs therein conceded right of the defendants therein with respect to land measuring Ac.21-59 cents, the Court appointed an advocate of the High Court as trustee of the suit temple and the defendants agreed to pay Rs. 50/- on first of March each year for the temple repairs from out of the produce realized out of Items 1, 2 and 3 of the suit schedule property. There was no collusion proved by the plaintiffs, between the plaintiffs who claimed to be worshippers and who filed the suit in O.S.No. 24 of 1980 and predecessors in interest of the present defendants. On the other hand, the decree of Trial Court and the decree of compromise by the High Court, proves conclusively that those decrees were not obtained by any collusion. Therefore, the plea of collusion was rightly rejected by the Trial Court.
13. Coming to the question of res judicata, it would be necessary to have a look at Section 92 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). Section 92 of the Code provides for filing of a suit in respect of breach of trust created for public purposes of a charitable or religious nature. Such suit could have been instituted prior to 1976 with the consent in writing of the Advocate-General. After the amendments in the Code carried in 1976, the suit can be filed with leave of Court by Advocate-General or two or more persons having an interest in the trust. Now, the present plaintiffs were not admittedly parties to the suit in O.S. No. 16 of 1918, which was filed by some of the worshippers after obtaining the written consent of the learned then Advocate-General, Explanation VI to Section 11 of the Code lays down:
"Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating."
14. A representative suit in terms of Section 92 read with Explanation VI to Section 11 of the Code makes such representative suit a suit proper even with regard to application of doctrine of res judicata. Suit under Section 92 of the Code is essentially a representative suit and therefore there was a requirement prior to 1976 that it should be filed with the written consent of the Advocate-General and after 1976 amendment, the requirement is, it should be filed with the leave of Court on behalf of the beneficiaries, by the Advocate-General or two or more persons interested in the trust. Section 92 of the Code itself contemplates that the suit need not be filed by the person who approaches the Court on his behalf alone, but on behalf of a group of persons who have common interest with that group of persons.
15. The applicability of the principle of res judicata to suits under Section 92 of the Code has attracted the attention of various Courts. In Anand Rao v. Ramdas, AIR 1921 PC 123, the Privy Council held that the suit under Section 92 of the Code must be a representative suit. It must have been instituted with the consent in writing of the Advocate-General on behalf of all the beneficiaries interested in the trust and for indication of public right. It further held that it was not necessary that all beneficiaries be made parties to the suit or they must appear at the trial. The name 'plaintiffs' actually represent general public. Even if all the plaintiffs or defendants do not appear and support or contest the suit, the decision in the suit will bind all those who were interested in the trust. The Supreme Court in Venugopala Naidu v. Venkatarayulu Naidu, 1989 Supp (2) SCC 356, held that the mere nature of a representative suit makes all those who have common interest in the suit, as parties. The Supreme Court in the same judgment, referred to earlier cases wherein the Supreme Court had held:
"The legal position which emerges is that a suit under Section 92 of the Code is a suit of a special nature for the protection of public rights in the public trusts and charities. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for the vindication of public rights. The beneficiaries of the trust, which may consist of the public at large, may choose two or more persons from amongst themselves for the purpose of filing a suit under Section 92 of the Code and the suit-title in that event would show only their names as plaintiffs. Can we say that the plaintiffs whose names are on the suit-title are the only parties to the suit ? The answer would be in the negative. The named plaintiffs being the representatives of the public at large which is interested in the trust all such interested persons would be considered in the eyes of law to be parties to the suit. A suit under Section 92 of the Code is thus a representative suit and as such binds not only the parties names in the suit-title but all those who are interested in the trust. It is for that reason that Explanation VI to Section 11 of the Code constructively bars by res judicata the entire body of interested persons from reagitating the matter directly and substantially in issue in an earlier .suit under Section 92 of the Code."
16. In Ahmad Adam v. Makhri, AIR 1964 SC 107, the Supreme Court held that the same would be the position with regard to the suits filed under Order I, Rule 8 of the Code.
17. In the light of these judgments, the determining test whether the principles of res judicata would apply, would be whether the earlier suit was essentially a suit filed for the purposes mentioned in Section 92 of the Code. We have seen the earlier judgment and it becomes quite clear that the suit had been filed in representative capacity after getting the written permission from the Advocate-General in terms of Section 92 of the Code, as it stood then. Therefore, in our view, the judgment in O.S. No. 16 of 1918 and subsequent judgment in appeal in A.S. No. 124 of 1919 are binding on the present plaintiffs as well.
18. The second contention which was raised, was that after coming into force of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter referred to as 'the Act, 1987'), the appellants have become the owners and by operation of law, they were entitled to the suit property. The learned Counsel for respondents however submit that this was not the ground agitated in the suit and this ground cannot be agitated in view of the earlier judgment of the High Court with respect to the same property.
19. Before appreciating the contention as to what would be the effect of the earlier judgment of the High Court, it will be necessary to have a look at some of the provisions of the Act, 1987.
20. Section 14 of the Act, 1987 says, "All properties belonging to, or given or endowed to a charitable or religious institution or endowment shall, vest in the charitable or religious institution or endowment, as the case may be".
21. Section 15 lays down that in respect of charitable or religious institution or endowment, the Government shall constitute a Board of Trustees.
Section 16 abolishes the hereditary trustees.
Section 29 empowers the Government to appoint Executive Officers in certain cases.
22. Section 34 abolishes hereditary rights in Mirasidars, Archakas and other office holders and servants. This Section is of some importance and therefore is reproduced hereunder;
"34.(1)(a) Notwithstanding anything in any compromise or agreement entered into or scheme framed or sanad or grant made or judgment, decree or order passed by any Court, Tribunal or other authorities prior to the commencement of this Act and in force on such commencement, all rights, whether, hereditary, contractual or otherwise of a person holding any office of the Peddajeeyangar, Chinna Jeeyangar, a Mirasidar or an Archaka or Pujari or any other office or service or post by whatever name it is called in any religious institution or endowment shall on the commencement of this Act stand abolished.
(b) Any usage or practice relating to the succession to any office or service or post mentioned in Clause (a) shall be void;
(c) All rights and emoluments of any nature in cash or kind or both accrued to and appertaining to any office or service or post mentioned in Clause (a) and subsisting on the date of commencement of this Act shall on such commencement stand extinguished.
(2) Every office holder and servant mentioned in Clause (a) of Sub-section (1) holding office as such on the date of commencement of this Act shall, notwithstanding the abolition of the hereditary rights, continue to hold such office or post on payment of only such emoluments and subject to such condition of service referred to in Sub-sections (3) and (4) of Section 35."
Section 65 creates a liability of institutions or endowments or Dharmadayam to pay annual contribution and audit fees. Section 65(1) reads:
"In respect of the services rendered by the Government and their employees, every charitable or religious institution or endowment or Dharmadayam other than Tirumala Tirupathi Devasthanams whose annual income is not less than rupees five thousands, shall be liable to pay to the Government annually from the income derived by it, such contribution not exceeding seven per centum of the annual income as may be prescribed."
It appears that after the Act, 1987 came into force, the respondents were asked to contribute in terms of Section 65(1). That order they challenged before this Court and the Court, while disposing of the writ petition being Writ Petition No. 1137 of 1970, held that the respondent i.e., the Commissioner, Hindu Religious and Charitable Endowments, Andhra Pradesh, was not entitled to levy contribution and audit fee against the petitioners' land in question. That judgment relied on the earlier judgment in appeal being A.S. No. 124 of 1919 to come to a conclusion that the land in question related to 'Archakatvam' service. This writ petition was filed in the year 1970 when the present Act was not promulgated and the Endowments Act, 1966 was in force. In the Endowments Act, 1966, there was no provision like Section 34 of the Act, 1987 and the rights of the 'Archakas' were in tact. Therefore, it is contended by the learned Counsel for respondents that in terms of Section 34 of the Act, 1987, 'Archakatvam' stands abolished and therefore they have no rights to bank upon, by operation of law. Even if they had any rights in pursuance of the grant and the judgment of the Madras High Court or the judgment of this Court, those were stood abolished. Section 34 of the Act, 1987 has been quoted by us hereinabove and it lays down that notwithstanding anything in any compromise or agreement entered into or scheme framed or 'sanad' or grant made or judgment, decree or order passed by any Court, Tribunal or other authorities prior to the commencement of this Act and in force on such commencement, all rights, whether, hereditary, contractual or otherwise of a person holding any office of the Peddajeeyangar, Chinna Jeeyangar, a Mirasidar or an Archaka or Pujari or any other office or service or post by whatever name it is called in any religious institution or endowment shall got abolished. Therefore, although the plaintiff has been able to show that a grant was given in his favour for rendering service to the temple and he was also able to show that a judgment was passed in his favour, which became final in an appeal before the Madras High Court and he was also held entitled to retain the profits earned out of the land and were not liable to pay any contribution towards the Endowments Department, by the High Court of Andhra Pradesh, still they have lost their rights because of the operation of Section 34 of the Act, 1987. This matter was considered in detail by the Hon'ble Supreme Court in a case in A.S. Narayana Deekshitulu v. State of Andhra Pradesh and Ors., . Suffice is to reproduce Paragraphs 120 and 121 from the scholarly judgment of Justice K. Ramaswamy as his Lordship then was:
"120. There is a distinction between religious service and the person who performs the service; performance of the religious service according to the tenets, Agamas, customs and usages prevalent in the temple etc., is an integral part of the religious faith and belief and to that extent the legislature cannot intervene to regulate it. But the service of the priest (archaka) is a secular part. As seen earlier, the right to perform religious service has appointment by the owner of the temple or king as its source. The Legislature is competent to enact the law taking away the hereditary right to succeed to an office in the temple and equally to the office of the priest (archaka). The hereditary right as such is not integral part of the religious practice but a source to secure the services of a priest independent of it. Though performance of the ritual ceremonies is an integral part of the religion, the person who performs it or associates himself with performance of ritual ceremonies, is not. Therefore, when the hereditary right to perform service in the temple is terminable by an owner for bad conduct, its abolition by sovereign Legislature is equally valid and legal. Regulation of his service conditions is sequenced to the abolition of hereditary right of succession to the office of an archaka. Though an archaka integrally associates himself with the performance of ceremonial rituals and daily pooja to the Deity, he is an holder of the office of priest (archaka) in the temple. So are the other office-holders of employees of the temple in Seshammal's case, , this Court had upheld the Legislative competence to take away the hereditary right as such.
121. The real question, therefore, is: whether appointment of an archaka is governed by the usage and whether hereditary succession is a religious usage? If it is religious usage, it would fall squarely under Article 25(1)(b) of the Constitution. That question was posed in Seshamal's case wherein this Court considered and held that though archaka is an accomplished person, well-versed in the Agamas and rituals necessary to be performed in a temple, he does not have the status of a head of the temple. He owes his appointment to Dharmakarta or Shebait. He is a servant of the temple. In K. Seshadri Aiyangar v. Ranga Bhattar, (1912) ILR 35 Mad 631, the Madras High Court had held that, status of hereditary archaka of a temple is that of a servant, subject to the disciplinary power of the trustee who would enquire into his conduct as servant and would be entitled to take disciplinary action against him for misconduct. As a servant, archaka is subject to the discipline and control of the trustee. The ratio therein was applied and upheld by this Court and it was held that under Section 56 of the Madras Act archaka is the holder Of an office attached to a religious institution and he receives emoluments and perks according to the procedure therein. This Court had further held that the act of his appointment is essentially a secular act. He owes his appointment to a secular authority. Any lay founder of a temple may appoint an archaka. The Shebait or Manager of temple exercises essentially a secular function in choosing and appointing the archaka. Continuance of an archaka by succession to the office from generation to generation does not make any difference to the principle of appointment. No such hereditary archaka can claim any right to the office. Though after appointment the archaka performs worship, it is no ground to hold that the appointment is either religious practice or a matter of religion. It would thus be clear that though archaka is normally a well-versed and accomplished person in the Agamas and rituals necessary to be performed in a temple, he is the holder of an office in the temple. He is subject to the disciplinary power of a trustee an appropriate authority prescribed in the regulations or rules or the Act. He owes his existence to an order of appointment - be it in writing or otherwise. He is subject to the discipline at par with other members of the establishment. Though after appointment, as an integral part of the daily rituals, he performs worship in accordance with the Agamas Sastras, it is no ground to hold that his appointment is either a religious practice or a matter of religion. It is not an essential part of religion or matter of religion or religious practice. Therefore abolition of the hereditary right to appointment under Section 34 is not violative of either Article 25(1) or 26(b) of the Constitution."
23. In view of the operation of law, we feel that the respondents had no right to hold over the land and accordingly the appeal is allowed and the judgment of the Trial Court is set aside and suit for possession in O.S. No. 24 of 1980 is decreed. No order as to costs.
24. O.S. No. 25 Of 1980 against which there is no appeal, was filed by the defendants in O.S. No. 24 of 1980 against the plaintiffs in that suit, seeking recovery of Rs. 1,016.91ps., collected on 20.11.1976 under Revenue Recovery towards contribution and audit fee. Suit was dismissed. No interference is called for in this suit, in view of our judgment in AS No. 1012 of 1988.
25. In the result, the appeal is allowed. No order as to costs.