Madras High Court
S.P.Krishnaraja (Died) vs The Commissioner on 16 August, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
A.S.No.877 of 1997
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
A.S.No.877 of 1997
1.S.P.Krishnaraja (died)
2.M.S.Murugesan (died)
3.D.Krishnan (died)
4.A.Murugaiah (died)
5.Solaimalai
6.M.Radhakrishnan
7.S.Induraja
8.M.Solaimalairaja
9.K.Mugesh
10.P.Manikandamoorthy
11.C.Duraimurugan ...Appellants
(6th appellant is brought on records as legal heir of
the deceased fourth appellant vide Court order dated
11.03.2022 made in M.P.(MD) Nos.3 to 5 of 2012.)
1/22
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A.S.No.877 of 1997
(Appellants 7 to 11 are impleaded vide Court
order dated 11.07.2022 made in C.M.P(MD) Nos.
9834, 11366, 11368, 11370 and 11372 of 2018)
Vs.
1.The Commissioner,
Hindu Religious and Charitable Endowments (Admn.) Department,
Chennai - 34.
2.C.Kamal ...Respondents
(2nd respondent is impleaded vide Court order
dated 11.07.2022 made in C.M.P.(MD) No.8558
of 2021)
PRAYER: Appeal Suit filed under Section 96 of the Code of Civil
Procedure, against the judgment and decree dated 31.07.1997 passed in
O.S.No.317 of 1992, by the learned Principal Subordinate Judge,
Madurai.
For Appellants : Mr.S.Manohar
For Respondents : Mr.P.T.Thiraviam - for R1
Additional Government Pleader
: Mr.R.Balakrishnan - for R2
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A.S.No.877 of 1997
JUDGMENT
The appellants are the plaintiffs in O.S.No.317 of 1992, on the file of the learned Principal Subordinate Judge, Madurai.
2. The original suit has been filed by the plaintiffs for declaration that the suit institution is not a "religious institution" by reversing and setting aside the impugned order passed by the defendant in A.P.No.60/87 dated 01.10.1991. The said suit was dismissed. Challenging the said dismissal judgment and decree, dated 31.07.1997, the plaintiffs have filed the present appeal suit as appellants.
3. The averments in the plaint, in brief reads as follows :
The suit temple is situated at Thallakulam, Madurai Town. One Solaimalai Poosari @ Karuppanasamy was the common ancestor of the plaintiffs and their pangalis. The said Solaimalai Poosari @ Karuppanasamy was a saint possessing super powers than the ordinary human beings. On getting the blessings of the said Solaimalai Poosari @ Karuppanasamy, his family members and relatives had the atmost faith and belief upon his powers. About 150 years ago, the said Solaimalai 3/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 Poosari @ Karuppanasamy passed away from this earth. The family members and relatives of saint Solaimalai Poosari @ Karuppanasamy had thought it fit to interm in their private land and to erect a tomb upon the remains of the said saint. On worshipping of the tomb of Solaimalai Poosari @ Karuppanasamy, his heirs were blessed with all sorts of welfare. Evensince then, his heirs namely, the plaintiffs and their ancestors are continuing the worship of the tomb of Solaimalai Poosari @ Karuppanasamy.
4. In the course of time, the plaintiffs' ancestors carved out the image of the deceased saint Solaimalai Poosari @ Karuppanasamy and worshipped the same. Later around the stone carving of that Solaimalai Poosari @ Karuppanasamy, the plaintiffs' ancestors have erected the sanctum sanctorium and mandapam etc., the very appearance of the idol Karuppanasamy will reflect the physical anatomy of the deceased Solaimalai Poosari @ Karuppanasamy.
5. All along the plaintiffs and their ancestors alone were worshipping as their family deity. The public has no right to come and worship in the temple as of right. As a matter of fact, the plaintiffs and 4/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 their ancestors were performing Gurupoojas every year in that temple to their common ancestor Solaimalai Poosari @ Karuppanasamy. The public had no right of participating in the Gurupoojas or in the related ceremonies and festivals conducted in the temple. The plaintiffs are maintaining and administering the temple among themselves. In such administration of the temple, so far neither the public nor the Hindu Religious and Charitable Endowments Department had interfered at any point of time.
6. During the year 1981, the World Tamil Conference was celebrated in Tamukkam ground situated near the suit temple. Then only the Hindu Religious and Charitable Endowments Department Officials had a look over the temple. On that eve, the Government machineries had planned to demolish the suit temple with a view to widen the road. With a very great struggle and protest, the plaintiffs were able to maintain the status quo preserving the temple and the tomb situated therein. Thereafter, the plaintiffs were advised to get a declaration that the suit temple is a private family temple by moving before the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Madurai. Accordingly, the plaintiffs have filed O.A. 5/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 No.10/82 before the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Madurai, seeking declaration that the suit temple is not a religious institution to the effect that it is their private temple. The Deputy Commissioner has not even granted sufficient time to the plaintiffs to examine some more witnesses on their side to substantiate their case. But hurriedly with the evidence of P.W.1 alone and relying on the report of the Inspector of that area, the Deputy Commissioner has dismissed the petition. It is significant to mention that the area Inspector was not examined and no opportunity was given to the plaintiffs to cross examine the Inspector upon the veracity of the report. Against that order, the plaintiffs have preferred an appeal A.P.60/87 before the defendant. But erroneously the defendant has confirmed the order of the Deputy Commissioner by dismissing the appeal.
7. Thereafter, the plaintiffs have issued a registered lawyer notice, dated 17.01.1992 to the defendant under Section 80 C.P.C., which was received and acknowledged by the defendant on 22.01.1992. The reasonings given by the defendant to negative the claim of the plaintiffs are unsustainable in law. The defendant had concluded in his order as it may be true that there is a burial ground in S.No.151 but this will not 6/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 altogether alter the character of suit institution as a Samathi in toto. The defendant has not duly appreciated the plaintiffs documents in the due prospective approach. Therefore, in all the sphere of the case, it has to be rightly decided as it is the private temple belonged to the plaintiffs. Hence, the suit.
8. The defendant filed a written statement, which reads as follows :
The suit is not maintainable. The suit is bad for non joinder of necessary party to the proceedings since the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Madurai, had not been impleaded as a party to the proceedings. The averments and the allegations that the plaintiffs' ancestors carved out the image of the deceased saint Solaimalai Poosari @ Karuppanasamy and worshipped the same, later around the stone carrying of that Solaimalai Poosari @ Karuppanasamy, the plaintiffs' ancestors have erected the sanctum sanctorium and mandapam that the very appearance of the idol Karuppanasamy will reflect the physical anatomy of the deceased Solaimalai Poosari @ Karuppanasamy are all denied as false and incorrect.
7/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997
9. The suit temple is situated in T.S.No.551, Ward No.10 of Madurai Corporation which is forming part of Madurai Corporation. The plaintiffs had not produced any documentary evidence to prove the existence of any Samadhi or any such things as claimed by the plaintiffs at the time of enquiry made by the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Madurai, and this defendant. But now the story of the plaintiffs is that there being a burial ground in the land wherein the temple is situate is baseless, misconceived and invented for the purpose of the case. The plaintiffs have not produced any records or accounts that the temple has been built from their personal funds, at the time of enquiry made by the Deputy Commissioner, Madurai and this defendant. Most of the public are worshipping in the disputed temple in all time and contributed funds to the temple.
10. The Division Inspector, Madurai North reported that during the festival and on all other important days including Friday and Tuesday the public are worshipping the Karuppanasamy. Regular worship is going on and the poojaris perform poojas and distribute 8/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 "Veeputhi" to the worshippers i.e., public. Eventhough there is no grand festival for this temple separately, there is a huge festival of Kallalagar Temple of Alagarkoil which is being celebrated at Tallkulam and all the worshipping public who attended such festival are also paying a visit to this temple also and offering Kannikkai etc., to this temple. The temple has been brought under the control of this department as per the report of the Special Inspector, Madurai, dated 12.10.1972. The plaintiffs filed a petition before the Deputy Commissioner, Madurai in the year 1982. The Deputy Commissioner, Madurai had given sufficient time to the plaintiffs and the Area Inspector was also cross examined by the plaintiffs' counsel on 11.12.1985 and passed orders on 23.01.1986. The defendant and the Deputy Commissioner had passed orders after perusing the oral and documentary evidences produced before them and after hearing the arguments of the plaintiffs' counsel. Hence, the orders passed by them are correct and as per the Act. The present suit is filed only to drag on the matter for some more years. The suit is barred by limitation and hence, the suit has to be dismissed with costs.
11. The parties went into trial and the learned Principal Subordinate Judge, Madurai, had framed the following issues for 9/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 consideration :-
1. Whether the plaintiffs are entitled for the relief of declaration?
2. Whether the suit is barred by limitation ?
3. To what relief, if any, is the plaintiffs entitled?
12. During trial, on the side of the plaintiffs, the second plaintiff examined himself as P.W.1 and documents Ex.A1 to Ex.A17 were marked. On the side of the defendant, D.W.1 was examined and documents Ex.B.1 was marked and the commissioner report was also marked as Ex.C.1.
13. On consideration of the oral and documentary evidence, the learned Principal Subordinate Judge, Madurai, had dismissed the suit. Challenging the said judgment and decree, dated 31.07.1997, the plaintiffs have filed the present appeal as appellants.
14. The learned counsel appearing for the appellants would submit that the trial Court proceeded to dispose the suit as if the question of crux of the suit was whether the suit institution is a public or private 10/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 temple ? and that the actual dispute was whether the suit institution a samathi or a temple ? D.W.1 herself admitted in her deposition that there was a samathi in the suit property. Ex.C.1 and Exs.A8 to A17 itself clearly shows that the suit institution is only a samathi and not a temple. Under Exs.A8 to A17 the appellants have paid property tax and electricity tax treating the property as private. Mere presence of some idols of Hindu Gods and offering poojas to the same do not make the place a temple that too a public temple. The presence of tombs of the appellants' ancestors and performance of Guru Pooja will clearly show that the suit institution is a samathi and not a temple. The offering of the worship to the mortal coils of a dead person is an unithma to the Hindu philosophy. The trial Court failed to consider various decisions in this regard and without proper appreciation of evidence dismissed the suit. The suit institution is not a temple as defined under Section 6(20) of the Tamil Nadu Hindu Religious and Charitable Endowments Ac.
15. He would further submit that the suit institution not comes under the definition of a temple, moresoever, it is a public temple. The respondents have not established that the public are being allowed to worship without any control of the appellant. No public are allowed to 11/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 worship and there was no flagstaff (bfho kuk;) and there is no Gopuram and there only a samathi is situated. One Solaimalai Poosari @ Karuppanasamy was the common ancestor of the appellants and their pangalis. The said Solaimalai Poosari @ Karuppanasamy was a saint possessing super powers than the ordinary human beings and his thoughts and advices imbibed his family members and other heirs. On getting the blessings of the said Solaimalai Poosari @ Karuppanasamy his family members and relatives had the atmost faith and believing upon his powers. About 150 years ago, the said Solaimalai Poosari @ Karuppanasamy passed away from this earth. The family members and relatives of saint Solaimalai Poosari @ Karuppanasamy had thought it fit to interm in their private land and erected a tomb upon the remains of the said saint. On worshipping of the tomb of Solaimalai Poosari @ Karuppanasamy, his heirs were blessed with all sorts of welfare. Evensince then his heirs namely, the appellants and their ancestors are continuing the worship of the tomb of Solaimalai Poosari @ Karuppanasamy. Therefore, it is only a samathi and it is a private property either it is a private temple or it is a public temple. 12/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997
16. All the documents also stands in the name of the appellants. Therefore, it clearly shows that it is a private property and it is not under the control of the Hindu Religious and Charitable Endowments Department and no public was freely allowed to worship the place. Therefore, it is not a religious institution. The trial Court also appointed an Advocate Commissioner in I.A.No.616 of 1996 and makes no reference to the Commissioner's report in the judgment. The Commissioner's report would clearly show that there was a samathi in the suit property which would render that it was an unfit place of worship. These facts are failed to be considered by the Trial Court. Hence, the appeal has to be allowed.
17. In support of his case, learned counsel for the appellants also placed reliance of the following judgments:-
i) Soundharathammal Vs. The Tiruchirappalli Mavattam mahasuruli Alaya Bakthargal Madya Sangam by its President balamuthu Servai, Vice President Mahayogi Thangam Pillai and Secretary Shanmuga Nagalangiar reported in 1977(1) MLJ - 125; 13/22
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ii) Radhakanta Deb and another Vs. The Commissioner of Hindu Religious Endowments, Orissa reported in AIR 1981 Supreme Court - 798;
iii) R.Shanmugaha Sundaram Vs, The
Commissioner, Hindu Religious and Charitable
Endowments and others reported in 1991(2) MLJ -
582;
iv) T.S.Palanisamy and 7 others Vs. The Commssioner, Hindu Religious and Charitable Endowments and another reported in 1996(2) L.W. - 681;
v) The Commissioner, Hindu Religious and Charitable Endowments Board, Nungambakkam, Madras - 34 and another Vs. T.S.Palanichamy and seven others reported in 2003(1) CTC - 65;
vi) Sri Ayyappa Seva Samajam, rep. by its Secretary, Vs. The Commissioner, Hindu Religious and Charitable Endowments (Admn.) Department, Nungambakkam, Chennai - 600 034 reported in 14/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 2017(1) CTC - 212;
vii) The Commissioner, Hindu Religious and
Charitable Endowments (Admn.) Department,
Uthamar Gandhi Salai, Nungambakkam High Road, Chennai - 600 034 and another Vs. Sri Sastha Sangam rep. by its President R.K.Baradan and another reported in 2017(3) CTC - 63;
viii) R.Manoharan and four others Vs.The Deputy Commissioner, H.R & C.E., Madurai and another reported in 2017(5) CTC - 238.
18. The learned counsel for the first respondent would submit that it is a temple. Even at the time of Lord Kallalagar goes to the river Vaigai, Mandagapadi was also conducted and further during that time and all the Ammavasai, Pournami, every Tuesdays and Fridays large number of public are doing worship in the temple. The samathi is different and the temple is different. Even in that place eventhough there is no Gopuram or the flagstaff (bfho kuk;) when the public are being worshipped and poojas are performed in the idols, then it can be treated 15/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 as a temple and when moresoever, large number of publics were allowed to worship and it is a public temple. The citations referred by the appellants are not applicable to the crux of the case.
19. Heard the learned counsel on either side and perused the materials available on record.
20. Though initially the appellants have filed a petition in O.A.No.10/82 before the Deputy Commissioner of Hindu Religious Charitable and Endowments Department, the Deputy Commissioner has dismissed the claim of the appellants on 23.01.1986. Against which, the appellants filed the appeal in A.P.No.16/87 and the same was also dismissed on 0.10.1991. Challenging the same, the appellants filed the statutory suit under Sections 70 and 104 of the Act. The trial Court after hearing both sides, dismissed the suit. Aggrieved over the same, the appellants have filed the present appeal.
21. The specific case of the appellants are that their ancestor one Solaimalai Poosari @ Karuppanasamy was demised and therefore, they kept the body in the suit property. The appellants family and their 16/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 ancestors about 150 years worshipping the samathi and there is no temple and since it is a samathi, no public is worshipping and it is not a temple, moresoever and it is not a public temple. The appellants asked the Deputy Commissioner and Commissioner to declare the suit institution is a samathi and private property and not a temple moresoever it is a public temple and they failed to appreciate that the documents produced by the appellants are all the property tax and other revenue taxes are only stands in the name of the appellants' family and they brought to the knowledge of the Hindu Religious and Charitable Endowments Department and they failed to appreciate the documentary evidence and the trial Court failed to appreciate the same and dismissed the statutory suit filed by the appellants.
22. The case of the first respondent is that the temple under the control of the Hindu Religious and Charitable Endowments Department it is not a samathi alone even assuming that it is a samathi it is also a religious institution under section 6 (18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act. Further apart from the samathi there are temples and all the larger public are also being worshipped and poojas also performed as per agamas and also while 17/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 performing Chitra Pournami Festival, Lord Kallalagar, Alagarkovil, passing through the place and those days the large number of publics are being worshipped. Even every Tuesdays, every Fridays, every Ammavasai and Pournami public are being worshipped. Therefore, it is not a private institution and it is a religious institution. Therefore, the first respondent rightly dismissed the claim of the appellants and the trial Court also rightly appreciated the documents and dismissed it.
23. Now one of the contention raised by the appellants is that it is a samathi and the trial Court appointed an Advocate Commissioner in I.A.No.616 of 1996 he also inspected the suit property and filed his report into the Court. But the Commissioner's report was not being considered and discussed and the report clearly shows that there was a samathi in the suit property.
24. On the other hand, the learned counsel for the first respondent submitted that it is not a private property the samathi is not situated in the private property and the temple is also not situated in the private property and so may public have dedicated somuch of lands to the suit institution and therefore, it is a religious institution and also the 18/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 temple and public are being allowed to worship. It is a temple and there is a idols and also poojas are performed as per agamas and large number of public are also being allowed for worshipping the temple and the large number of public have dedicated their property in favour of samathi and also the temple. Therefore, once the public contribution involved it is a publice temple.
25. However, a perusal of the records and the judgment of the trial Court has not discussed about the Commissioner's report and also the respondents have not marked any of the documents said to have dedicated to the suit institution. Therefore, this Court in order to meet the ends of justice, further particulars are required, the trial Court failed to clarify the same. Even as admitted by the appellants it is a samathi as per amened Section 6 (18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, a samadhi also comes under the meaning of "religious institution". Therefore, even if it is a samathi, the samathi also falls under the definition of "religious institution". Therefore, the claim of the appellants that it is a private property is rejected. 19/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997
26. However, since the respondents have stated that so many properties have been dedicated by the public in the name of the suit institution namely, the samathi and the temple in order to bring out all those things, it is necessary to remit the case to the trial Court. In order to give an opportunity to the parties to decide the matter on merits, the Appeal Suit is allowed the decree and judgment of the trial Court is set aside and the matter is remitted back to the trial Court and the trial Court is directed to conduct a fresh trial after giving opportunity to both the parties and both the parties are at liberty to produce all the documents and after giving opportunity to both the parties to produce oral and documentary evidence the trial Court is directed to dispose the suit purely on merits and in accordance with law. No costs.
16.08.2022 Index:Yes/No Internet:Yes/No rm 20/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 To
1.The Principal Subordinate Judge, Madurai.
2.The Section Officer, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
21/22 https://www.mhc.tn.gov.in/judis A.S.No.877 of 1997 P.VELMURUGAN, J.
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