Madras High Court
Ramachandran vs The Commissioner on 9 April, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09/04/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.51 of 2005 1.Ramachandran 2.P.N.Joshi 3.Ramanathan 4.Uthayakumar ... Appellants/Plaintiffs Vs. 1.The Commissioner, H.R & C.E, Nungambakkam High Road, Chennai - 600 034. 2.The Joint Commissioner, H.R & C.E., Upstairs West Chitrai Street, Madurai. 3.Sri Ramanathasami Devasthanam, Rameswaram through Executive Officer, Devasthanam Office, Rameswaram, Ramanathapuram District. ... Respondents/Defendants Prayer Appeal filed under Section 75 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, against the judgment and decree dated 02.12.2003 passed in O.S.No.156 of 1998 by the Sub Judge, Ramanathapuram. !For Appellants ... Mr.M.S.Balasubramania Iyer ^For Respondents... Mr.So.Paramasivam, Govt. Advocate for R.1 & R.2 Mr.S.Ramesh for Mr.V.Raghavachari for R.3 :JUDGMENT
This appeal has been filed as against the judgment and decree dated 02.12.2003 passed in O.S.No.156 of 1998 by the Sub Judge, Ramanathapuram.
2. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
3. Broadly but briefly, narratively but pithily, the case of the plaintiffs as stood exposited from the plaint could be set out thus:
(i) The plaintiffs four in number, are the hereditary trustees of the religious institution known as Sri Kandamanaparvatham in Rameswaram, as found described in the schedule of the plaint. It is a place of religious worship.
It was founded by one Neelakanda Sivam @ Neelakanda Iyer @ Neelakanda Joshi, the ancestor of the plaintiffs about five hundred years ago. The said founder constructed massive structure well within his property and installed the Peedam on which the sacred foot prints of Lord Rama was found.
(ii) He started worshipping the Peedam and he constituted himself as Poojari cum trustee of the said institution. The genealogy has been furnished by the plaintiffs. As such, following the founder, his descendants namely the sons and grandsons and thereafter, the male descendants of the founder have been acting as Poojaries cum trustees of that institution and they have been performing Poojas and managing the institution. The plaintiffs' ancestor one Loganathan Sivam was functioning as Poojari cum trustee. Rama Iyer and Subba Iyer had no issues and Parvatha Iyer had four sons Loganatha Iyer, Anda Iyer, Neelakanda Iyer and Neelakanda Bairava Iyer. Mahadeva Iyer had a son by name Neelakanda Sammana Iyer. After the life time of Rama Iyer and his brothers, the sons of Parvatha Iyer and Mahadeva Iyer succeeded to the office of hereditary trusteeship cum poojariship and they all together performed the poojas and they managed the institution.
(iii) It is well known that in Rameswaram, the famous temple of Sri Ramanathaswami is situated. The pilgrims who visited that temple also visited the suit institution. However, the construction was comparatively simple and there is no big tower or massive praharams. Various kings belonging to the Naicker Dynasty and the Sethupathi Dynasty who had contributed their wealth for the additional constructions of the said temple and for proper upkeep of the said temple had made a permanent records of their contributions by causing various inscriptions on the stone walls within the temple and by having their images and those of their ancestors carved out in the form of statues and installing those statutes at various places within the temple premises. Following the kings, Zamindars started having control over the said Ramanathaswami temple. Neither the kings nor the Zamindars had control over the hereditary trustees of the suit institution.
(iv) In fact, Zamindar of Ramanathapuram issued pattas in the names of the ancestors of the plaintiffs for the suit property over which the institution is situated. It was never treated as subsidiary institution of Sri Ramanathaswamy Temple, even though Raja of the Ramanathapuram himself was the hereditary trustee of the said temple. Sri Ramanathaswamy temple was managed by a Board of trustees headed by Raja of Ramanathapuram as the Chairman of Board of trustees. But, there was no Board of trustees for the suit institution. During the year 1917, the then trustees of Sri Ramanathaswamy temple tried to install Hundial in the premises of the suit institution. But, the ancestors of the plaintiffs objected to it and thereupon, such attempt was stopped.
(v) The trustees of Sri Ramanathaswamy temple did not spend any money for the maintenance or upkeep of the suit institution. The Deputy Commissioner, H.R & C.E, Madurai initiated suo motu proceedings in O.A.No.2 of 1965 under the Tamil Nadu Act 22 of 1959 for determining the question whether the suit institution was a public religious institution or not. The grandfather of the first plaintiff contested the matter.
(vi) Thereafter, the Deputy Commissioner decided under Section 63(a) of the H.R & C.E Act that it is the public institution. Thereupon, the suit was filed in O.S.No.31 of 1971 by the grandfather of the first plaintiff in the Sub Court concerned, for setting aside the order passed by the Deputy Commissioner in O.A.No.2 of 1965. The suit was dismissed holding that the suit institution was a public institution. Challenging the same, A.S.No.287 of 1971 before this Court was filed by the grandfather of the first plaintiff. Ultimately, this Court upheld the finding that the suit property is a public religious institution. While holding so, this Court recognised the plaintiffs' hereditary right to manage the suit institution and perform the poojas.
(vii) As such, the said institution was never considered as the subsidiary shrine of Sri Ramanathaswamy temple. After the judgment of this Court, the plaintiffs filed O.A.No.17 of 1981 before the Deputy Commissioner, H.R & C.E, under Section 63(b) of the H.R & C.E Act, for declaration that the suit institution was being managed by the successive hereditary trustees. The third defendant contested the matter contending that the plaintiffs could claim only Pooja Mirashi right.
(viii) On 04.05.1983, the Deputy Commissioner allowed the said O.A.No.17 of 1981, but on appeal, the Commissioner set aside the order by remanding the matter back to the Deputy Commissioner for deciding afresh. Subsequently, the Deputy Commissioner decided the matter dismissing the said petition. Thereupon, the plaintiffs filed appeal in A.P.No.7 of 1993 before the Commissioner, who dismissed it. The Deputy Commissioner as well as the Commissioner failed to hold that the plaintiffs are the hereditary trustees of the said institution and they were not justified in holding that the suit institution is a subsidiary institution of Sri Ramanathaswamy temple.
(ix) The observations made by the Deputy Commissioner and the Commissioner were not in tune with the objections made by the ancestors of the plaintiffs for installation of Hundial by the third defendant in the suit institution.
(x) The documents available would demonstrate that the third defendant never treated the suit institution as one under its administration and in fact, in some of the records maintained by the third defendant, the ancestors of the plaintiffs attested as the hereditary trustees cum Poojaris of the suit institution.
(xi) The third defendant did not appoint any of the plaintiffs relating to the suit institution. The plaintiffs and their ancestors of their own accord and on their own right acted as hereditary trustees and Poojaris and thereupon, by their open, continuance and exclusive possession of the suit institution, they prescribed their absolute right over the office of the hereditary trustees
- poojaris also.
(xii) The ancestors of the plaintiffs failed to move the Settlement authority for grant of ryotwari patta in their favour, even though they got patta for the property within which the suit institution is situated under the Zamindar. When the State Government wanted to interfere with the possession of the ancestors of the plaintiffs relating to that property, they filed the suit in O.S.No.26 of 1989 before the Sub Court, Ramanathapuram for upholding their ownership and other incidental reliefs. The suit was decreed upholding the claim of the ancestors of the plaintiffs. The third defendant did not obtain any patta in their name relating to the property within which the suit institution is situated. Both the Deputy Commissioner and the Commissioner failed to appreciate all these facts, but decided wrongly O.A.No.17 of 1981 and A.P.No.7 of 1993 respectively. Accordingly, the plaintiffs prayed for the following reliefs:
"(1) that the order made by the Commissioner H.R & C.E, in appeal A.P.No.7 of 1993 confirming the order made by the Deputy Commissioner (H.R & C.E), Madurai, in O.A.No.17 of 1981 be set aside holding that the suit institution is an independent religious institution managed and administered by the plaintiffs and by their ancestors and their hereditary right to be in office of the trustees cum poojaries.
(2) that the defendants to pay the costs of this suit to the plaintiffs, and (3) for such other and further reliefs as this Honourable Court may deem fit proper and necessary in the circumstances of the case."
(emphasis added)
4. Per contra, denying and refuting, challenging and contradicting the averments/allegations in the plaint, the third defendant filed the refutatory written statement which was adopted by the defendants 1 and 2, the gist and kernel of it, would run thus:
(i) Neelakanda Sivam alias Neelakanda Iyer did not construct any structure or Peedam referred to in the suit. Neither the plaintiffs nor their ancestors as set out in the genealogy have acted as hereditary trustees relating to suit institution or the suit property concerned but the same formed part of the third defendant's temple.
(ii) The genealogy as found set out in the plaint is imaginary. Ramar Padam is held as a sacred spot and it is part of the public institution that is treated as part and adjunct of Sri Ramanathaswamy temple. The Raja of Ramnad and his successors treated the suit institution and the property as the part of Sri Ramanathaswamy temple. Sri Ramanathaswamy temple included within its fold the sub temples and places of worship including the suit institution. The suit institution and the premises have no independent existence. Even in the year 1831, the suit property and the suit institution were under the control and management of Sri Ramanathaswamy temple.
(iii) The renovations of the Gandhamathanaparvatham temple was undertaken by the Sri Ramanathaswamy temple of Rameswaram every year and all expenditures incurred for the said renovations were borne by Sri Ramanathaswamy temple as evidenced by accounts. The reports of the Engineering Personnel, measurements and the values of the work done, have been reported to the management of Sri Ramanathaswamy temple. Among the members of the plaintiffs' family, there were disputes which were decided by the civil Court. The third defendant was not a party to those proceedings. The suit institution is situated 3 Kms away from Sri Ramanathaswamy temple.
(iv) In A.S.No.287 of 1971, this Court was pleased to uphold the hereditary right of the Archakas,but not their right as the Trustees of Sri Ramanathaswamy temple. The suit institution is managed by the trustees of Sri Ramanathaswamy temple. The incident referred to in the plaint during the year 1917, cannot in any way enure to the benefit of the plaintiffs herein. On sympathetic consideration, the Archakars were allowed to receive gifts. Such gifts and payments to archakars are quite common, because such gifts are given by the pilgrims to the Archakars for their own satisfaction. The plaintiffs are the descendants of some of the Archakas of the main temple namely Sri Ramanathaswamy temple. The plaintiffs are only the care takers and not the trustees. Accordingly, the defendants prayed for the dismissal of the suit.
5. The trial Court framed the following issues:
(i) Whether the suit temple belonged to private parties or to the third defendant?
(ii) Whether the plaintiffs are the hereditary trustees of the suit temple?
(iii) Whether the order passed in A.P.No.7 of 1993 confirming the order in O.A.No.18 of 1981 should be set aside?
(iv) To what relief the plaintiffs are entitled?
6. During trial, the first plaintiff examined himself as P.W.1 and Exs.A.1 to A.4 were marked. D.W.1 was examined and Exs.B.1 to B.50 were marked on the side of the defendants.
7. During cross-examination, it appears, A.5 and A.6 were marked, but in the list of documents, they were not found incorporated.
8. Ultimately, the trial Court dismissed the suit.
9. Being aggrieved by and dissatisfied with, the judgment and decree of the trial Court, this appeal has been filed by the plaintiffs on the following main grounds among others:
(i) The judgment and decree of the trial Court is against law and weight of evidence. The lower Court has not understood the crux of the case. Based on assumption, the trial court dismissed the suit. The trial Court proceeded on the footing that since the suit institution is a public temple, it should be belonged to the third defendant. It is not the case of the plaintiffs that the suit temple is not a public temple, but it is their case that they are the hereditary trustees. The evidence of D.W.1 was not considered by the trial Court and the suit institution was not referred to as the subsidiary institution of the third defendant.
(ii) The plaintiffs and the employees working in the suit institution were not appointed by the third defendant and this fact was not considered by the trial Court. The third defendant is not having any document to show that the Hundials of the suit institution were brought to the accounts of the third defendant and the third defendant has not paid any salary to anyone in the suit institution. Rameswaram is one of the Zamin villages attached to Ramanathapuram Zamin and the State Government took it over as per the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948.
(iii) The third defendant has not applied for ryotwari patta for the lands belonging to the suit institution. The trial Court failed to appreciate the significance of the suit O.S.No.26 of 1989. Some well-wishers donated funds to the third defendant for effecting repairs in Sri Ramanathaswamy temple and in the suit institution and that would not enure to the benefit of the third defendant to claim right of administration over the suit institution.
Accordingly, they prayed for setting aside the judgment and decree of the trial Court and for decreeing the original suit.
10. The points for consideration are:
(i) Whether the plaintiffs are the hereditary trustees of the suit institution and whether they adduced evidence before the trial Court in support of their plea?
(ii) Whether there is any infirmity in the orders passed by the Deputy Commissioner and the Commissioner?
11. Heard both sides.
12. Both the points are taken together for discussion as they are interlinked and interwoven with each other.
The Point:
13. A re'sume' of facts absolutely necessary and germane for the disposal of this appeal would run thus:
The warp and woof of the case of the plaintiffs is that they are the hereditary trustees of the suit institution namely Gandhamathanaparvatham temple; the authority under the H.R & C.E Act, erroneously understood the scope of Section 63(1)(b) of the H.R & C.E Act and instead of adjudging the hereditary trusteeship of the plaintiffs, they deviated from the main issue and held as though the suit institution is a subsidiary institution of Sri Ramanathaswamy temple; and without considering the probabilities and the oral and documentary evidence available on record, they decided against the plaintiffs.
14. Whereas the nitty-gritty of the case of the third defendant is that voluminous ancient documents filed on the side of the third defendant, would demonstrate and prove that ever since 1895 onwards and even earlier to it, Sri Ramanathaswamy temple Devasthanam has been exercising effective control and domain over the suit institution called Gandhamathanaparvatham temple and that the plaintiffs are none but the persons having Poojamirashi right as held in the previous proceedings by various Courts.
15. Whether 'Animus Domain' relating to the suit institution, has been with the plaintiffs and their ancestors or with the third defendant, is the judicial question in this case.
16. On the side of the plaintiffs, the first plaintiff examined himself as P.W.1 and Exs.A.1 to A.4 were marked through him. Whereas Exs.A.5 and A.6 were marked during cross-examination of D.W.1. Ex.A.1 is the impugned order passed by the Commissioner, H.R & C.E Department, in A.P.No.7 of 1993 as against the plaintiffs and Ex.A.2 is the notice dated 06.07.1998 addressed by the Deputy Commissioner to P.W.1, N.Ramachandran.
17. Ex.A.3 and Ex.B.49 are one and the same document filed on either side. Ex.A.3 (B.49) would reveal that the ancestor of the plaintiffs namely, Neelakanda Bairava Iyer, S/o.Neelakanda Parvatha Iyer, the first plaintiff's grandfather, as revealed by the table of genealogy appended to the plaint herein, filed the statutory suit in O.S.No.30 of 1971, for setting aside the order of the Commissioner, H.R & C.E Department, in A.P.No.61 of 1970 and for obtaining the relief of injunction as against the Commissioner, Hindu Religious and Charitable Endowments, Madras, and the Executive Officer, Ramanathaswami Devasthanam, Rameswaram, the third defendant herein, from interfering with the said Neelakanda Bairava Iyer's management and administration of the suit institution. The suit was dismissed by giving a finding that (i) Neelakanda Bairava Iyer, the plaintiff therein, the grandfather of P.W.1 (the first plaintiff herein), (ii)Neelakanda Joshi, the third defendant therein, the father of the plaintiff No.2 herein, and (iii) Radhakrishna Joshi, the fourth defendant therein, the father of the plaintiffs 2 and 3 herein, were not the owners the said institution and they had no right of management and administration over the said institution and declared the temple as the public institution. Certain excerpts from Ex.A.3 (B.49) is extracted hereunder for ready reference:
"10. ... The origin of the temple it has already been found has been lost in antiquity and at any rate cannot be traced to any ancestor of the plaintiff and the defendants 3 to 5. The management of the same has been with the second defendant-Devasthanam from the year 1891 onwards and the second defendant- Devasthanam had been responsible for effecting major repairs and the maintenance of the building. No doubt, the plaintiff and the defendants 3 to 5 had also effected repairs in the property but the same are trivial and of no great consequence. Possession of the property had remained with the plaintiff and the defendants 3 to 5 but such possession can be traced to the pooja mirashi right in the temple and not to absolute ownership therein. Most of the devotees have offered worship in the temple as of right and there is no instance of anybody having been refused permission for worship in the temple. The members of the public have been worshipping at the shrine without let hinderance. There being no idol in the property there has been no pooja at fixed hours and no festival connected with the temple. Poojas are offered to the carved feets of Lord Rama only and devotees offer worship therein and therefore no expenses are involved in respect of worship in the temple.
(11) In the result, on an analysis of all the attendant circumstances, it is clear that the suit property is a public temple within the definition of Section 6(20) of the Tamilnadu Hindu Regligious and Charitable Endowments Act of 1959.
(12) I therefore find on issue No.2 that Gandhamathana Parvatham temple is a public temple. I find on issue No.1 that the order of the Deputy Commissioner which has been confirmed by the Commissioner, is not liable to be set aside. On Issue No.3 in view of my finding on issues 1 and 2, the plaintiff is not entitled to the reliefs prayed for. The defendants are entitled to their costs."
(emphasis added.) As such, the discussions and findings given in Ex.A.3 (B.49), are clearly against the plaintiffs herein and it is binding on them.
18. Ex.A.4, is the order dated 04.05.1983 passed by the Deputy Commissioner in O.A.No.17 of 1981 which was set aside by the appellate authority. However that order has been filed herein which has no relevance for adjudicating this matter. The admitted fact remains that as against the order in Ex.A.4, the appeal was filed by the third defendant and thereupon, the matter was remanded back to the Deputy Commissioner concerned who gave a finding subsequently as against the plaintiffs herein.
19. As against which, the plaintiffs filed A.P.No.7 of 1993 and the Commissioner confirmed the order of the lower authority and dismissed the appeal holding that the plaintiffs are not the hereditary trustees, as against such order only, the statutory suit has been filed by the plaintiffs.
20. Ex.A.5 is the booklet published by the third defendant under the caption "The Saga of Rameswaram Temple" by Somalay, during the year 1975. Ex.A.6 is the relevant page and in that the subsidiary temples of Sri Ramanathaswamy temple are found set out.
21. The learned Counsel for the plaintiffs, placing reliance on Exs.A.5 and A.6 would submit that the suit institution was not stated as one of the subsidiary temples or the institutions of the third defendant.
22. In fact, the arguments of the learned Counsel for the plaintiffs are to the effect that such absence of specification of the institution namely Gandhamathanaparvatham in Ex.A.6 would go as against the third defendant's claim. Instead of the plaintiffs proving their case positively by producing clinching evidence, they have gone to the extent of placing reliance on Exs.A.5 and A.6 and based on that, they pray the Court to infer that the third defendant is having no right over the suit institution. The learned Counsel for the plaintiffs placing reliance on the alleged admissions of D.W.1, the official of the third defendant, would argue that D.W.1 admitted that the plaintiffs or their ancestors were not appointed as Archakars of Poojaris in the suit institution; no employees to do either secular or non-secular works in the suit institution were appointed by the third defendant. According to the learned Counsel for the plaintiffs, those admissions by D.W.1 would demonstrate that the third defendant had no control over the suit institution and that no budgetary provisions or accounts of the third defendant are available to prove that the third defendant exercised control over the suit institution. Suffice to say, such argument is neither here nor there.
23. The onus of proof is on the plaintiffs to prove their case. There is no infinitesimal or minuscule or iota or shred of evidence in support of the plaintiffs' contention that they are hereditary trustees relating to the said institution. Ex.A.5 emerged only in the year 1975 and the records would speak by itself that even as per the contention of the plaintiffs, the litigation started between the third defendant and the plaintiffs' ancestors several long years anterior to 1975; even as per Ex.A.3, the suit was of the year 1971 between the plaintiffs' ancestors and the third defendant and in such a case, Ex.A.5 emerged during the year 1975 can never be treated as a piece of evidence which the plaintiffs could rely upon it and no more elaboration is required in this regard.
24. Ex.A.5 is a mere booklet of the year 1975 whereas in the litigation earlier and in the voluminous documents filed on the side of the third defendant, the suit institution is found to be under the effective control and domain of the third defendant wherefore Ex.A.5 is never meant to be an authentic document of the third defendant. I am of the considered opinion that the plaintiffs are preculded from placing reliance on Ex.A.5 and no more elaboration is required as the untenability of the plaintiffs' plea is obvious and axiomatic.
25. It is therefore clear that absolutely without any evidence, the plaintiffs are claiming that they are the hereditary trustees of the suit institution. Whereas the clinching and voluminous documents filed on the side of the third defendant herein, in the earlier proceedings as well as in this proceeding would demonstrate that the third defendant had active control and domain over the suit institution. As such, merely based on the alleged admissions of D.W.1, the plaintiffs cannot build their case and in fact, D.W.1's answer to the deposition is not in any way constituted an admission of the plaintiffs case.
26. The contention of the learned Counsel for the plaintiffs that the authorities under the H.R & C.E Department, were not justified in holding that this suit institution is a subsidiary institution of the third defendant, is not a sound argument, for the reason that on finding that the plaintiffs are having no evidence on their side to prove their hereditary trusteeship, but on the other hand, finding based on documents that the third defendant had effective control over the public institution namely Gandhamathanaparvatham, the authorities under the H.R. & C.E Department correctly held that for such suit institution under the control of the third defendant, the plaintiffs cannot claim hereditary trusteeship.
27. Trite, the law, is that the plaintiffs should prove the case. The plaintiffs having failed to adduce any evidence to prove their case, cannot try to achieve success in the litigative battle by picking holes in the third defendant's case. As such, the appeal itself could be dismissed on that count. However, for the purpose of comprehensively deciding the matter based on the evidence placed before this Court, I proceed to discuss further the documents filed on the side of the defendants which highlight the untenability of the plaintiffs' case.
28. Ex.B.1, the certified copy of the judgment passed by the District Munsif, Ramanathapuram in O.S.No.67 of 1944 on 10.12.1945, would demonstrate that the said Neelakanda Bairava Iyer, the ancestor of the plaintiffs filed the suit for declaring his right of Poojamirashi in the suit institution and for recovery of half of the share of the income as against his relatives, Neelakanda Joshi, Chinthamani Rao Joshi and Rathakrishna Joshi. As already pointed out, according to the genealogy, the plaintiffs and the defendants therein are all close relatives and as per the plaint, they are the descendants of the alleged founder of the temple Neelakanda Sivam.
29. In fact, the said suit shows internecine fight among the family members and in that suit, the Court upheld their Poojamirashi right and allotted their respective shares. The relevancy of Ex.B.1 has been correctly highlighted by the learned Counsel for the third defendant that the plaintiff himself in the said suit clearly admitted that the third defendant had claim over the suit institution. An excerpt from Ex.B.1 is reproduced hereunder for ready reference:
"10. The plaintiff's pleader further contends that these documents are not genuine and that they must have been got up to support their case as against the Devasthanam in 1917, when they were first produced into Court. It is in evidence that there was some dispute between Rameswaram Devasthanam which claimed the suit temple and the predecessors of the parties in this suit. Exhibit D-2 is the certified copy of the list of documents filed in M.S.345 of 1917 on the file of the II Class Magistrate's Court, Ramnad. The above three deeds are mentioned therein and having been filed by the Parvatha Iyer the plaintiff's father. But, as pointed out by the defendants' pleader, these documents have been filed by the plaintiff's father himself into Court and if he is alive now, he cannot plead against the same and the plaintiff who derives title from his father cannot also go against the same."
(emphasis added)
30. Ex.B.47, is the certified copy of the relevant written statement filed by the third defendant before the II Class Magistrate, Ramnad in Roc.No.345 of 1917 which was relating to the proceedings initiated by the Magistrate and referred to in Ex.B.1 supra, and more specifically in the excerpt extracted hereunder. In the said written statement, it is found set out thus:
"1.That there is no ground whatever for an action under Section 144 CCP.
2. That no action can under law be taken on information laid by a telegram just as in this case.
3. That the petitioner has had no possession as contemplated under law in exercise of any such of right, title or interest in the premises known as Gandhamana Parvadam.
4.That the premises are the property of the Davastanam and in its possession and the Devastanam has absolute manner of enjoyment.
5. That the Devastanam in exercise of its right placed Hundyal in the premises just as it has done in other places for pilgrims to present offerings in a peaceful manner to the knowledge of the petitioner: the petitioner has no manner of claim to raise any objection whatever to the Devastanam doing this and similar acts at its own premises. ......"
As such, the stand of the third defendant herein is found spelt out as early as in the year 1917 itself.
31. Ex.B.2, the printed judgment dated 12.07.1947 passed by the Subordinate Judge, Ramnad at Madurai, in A.S.No.91 of 1946, would reveal that the said Neelakanda Bairava Iyer challenging the judgment as in Ex.B.1, filed the said appeal. The appellate Court slightly modified the judgment of the trial Court in respect of allotting share to the plaintiffs relating to Poojamirashi right.
32. Ex.B.3, the order passed by the Deputy Commissioner, in O.A.No.2 of 1965, in the suo motu proceedings initiated by him under Section 63(a) of the Madras H.R and C.E Act, 1959 and in that order, he gave a clear finding that the plaintiffs are having no right of hereditary trusteeship or ownership over the suit institution. Certain excerpts from it, could be extracted hereunder for ready reference:
"2. Sri Gandhmadhana Parvatham which is a two-storeyed mantapam in Rameswaram is at present in the management of the respondents 1 to 4 who claim to be the owners of the same. As a result of the obstructions created by the second respondent when the Rameswaram Devasthanam has attempted to place a hundial in the Gandhamadhana Parvatham, there arose a necessity to decide whether the said institution is a public religious institution or not. Proceedings have therefore been started under sec.63(a) of the Madras H.R & C.E Act and notices have been served upon the respondents to show cause as to why Sri Gandhamadhana Parvatham at Rameswaram should not be declared as a religious insitution under Section 63(a) of the Act. Rameswaram Devasthanam has applied to be impleaded as a party to the proceedings and it has been added as such 5th respondent.
3. The respondents 1, 3 and 4 remained exparte and the second respondent has filed a counter in which he has pleaded that Sri Gandhamadhana Parvatham is not a religious institution, but only a private family temple of the respondents and his agnates who are the descendants of one Andu Perumal Iyer. He has alleged that the temple has no idol, flag-staff or balipeetam or even any festival and other indices to make it a public temple. It has been treated as the private family temple of the respondents and their ancestors, and that it was never dedicated to the public. The public have got no right of worship in the temple. He has submitted that his grandfather Bairava Joshi Iyer renovated the temple in 1818 from his own funds and performed Kumbabishekam. While so, the Rameswaram Devasthanam has attempted to place in the temple a hundial in the year 1917, which was successfully resisted by him and thereafter the Devasthanam did not interfere with the temple. Even recently the respondent has spent about 200 rupees for the Kumbabishekam. He has therefore pleaded that Sri Gandhamanaparvatham temple cannot be declared as a religious institution under the provisions of the Act."
33. The aforesaid excerpts would clearly highlight the prevaricative stands of the plaintiffs herein. The plaintiffs' ancestors as found set out in the extract, took up the plea as though the entire suit institution is a private family temple of the plaintiffs' ancestors and it is not a public temple at all and accordingly, they laid claim. Whereas the third defendant herein disputed the same and contended that it is a public institution and it happened to be one of the shrines attached to Sri Ramanathaswamy temple. The Deputy Commissioner concerned, H.R & C.E Department observed as under:
"6.POINT: Sri Gandhamadhana Parvatham temple is a two-storeyed mantapam situated at a distance nearly 2 miles in Rameswaram island to the north of Sri Ramanathaswami temple. This temple stands on a raised platform over a hillock which is said to be the part of the original hill where Sri Rama was advised to establish a Lingam. The footprints of Sri Rama carved on a stone are placed in the centre of the lower building, and to these footprints pooja is performed. There is no denial of the fact that the respondents 1 to 4 have got a right to perform the pooja in this temple. This is evident from the fact that there was a litigation between the respondents themselves before a Civil Court, with regard to the share of the right of pooja miras in the temple and it has been settled, that the second respondent is to have 1/2 share while respondents 1, 3 and 4 to have the other half. But, the mere fact that these respondents have got a right to perform the pooja in the temple would not by itself clothe them to claim ownership of the temple. In fact, the respondents 1, 3 and 4 remained exparte in the enquiry and it is only the second respondent who now opposes the claim of Sri Ramanathaswami Devasthanam that Sri Gandhamadhana Parvatham is one of the institutions attached to the Rameswaram Devasthanam. ... ... The claim of the second respondent is that the temple in question has been built on a private property which is about 25 acres in extent belonging to his ancestors. The S.No. of this extent has been given as 518, but at the same time the second respondent is not able to produce any evidence to substantiate that this property belonged to his ancestors. Except his own statement in the course of his evidence as P.W.1, there is no other evidence to show that this property belonged to the second respondent and his ancestors. ... ... Under this circumstances, I do not think that we can rely upon these references alone to come to the conclusion that the property in S.No.518 was owned by the family of the second respondent. ...
... Though in the counter that has been filed by the second respondent there is mention that Sri Gandhamadhana Parvatham is a private family temple of the respondents and their agnates who are the descendants of one Pandu Perumal Iyer, it has not been specifically stated that it was only this Pandu Perumal Iyer who constructed the temple. But he has asserted in the course of his evidence that the temple has been built by his ancestors. At the same time has has admitted that he did not have any record to show to substantiate his allegation. Indeed he has exhibited his ignorance with regard to the time when the temple was built or by whom it has been constructed by simply saying that it was a very ancient one. Looking at the structure and the Vimanams of the temple, I do not think that the temple could have been built by any private person.
... Under this circumstance, I am of the opinion that there is no absolute evidence to show that the grandfather of the second respondent has renovated the temple at any time. ...
... It is clear from these documents that Rameswaram Devasthanam has been effecting repairs, exercising rights of ownership over this temple and that the Devasthanam authorities have been attending upon the management of the temple in question. ..."
34. The Deputy Commissioner also in Ex.B.3 clearly found that after initial resistance by the ancestors of the plaintiffs herein, they did not resist any more and that the third defendant continued to have control over the said institution. Another excerpt from it, would run thus:
" ... It may not be out of place at this juncture to note that in the conservation notes No.V of 1910-1911 of the Archaeological Department, Southern Circle, Madras a copy of which has been marked as Exhibit B.22 it has been mentioned in item No.4 that Gandharmadhana Parvatham is under the charge of Ramanathaswami Devasthanam authorities.
... But the other factor that is to be looked into in connection with the Gandhamadhana Parvatham temple is that the respondents do not pay mandagapadi fees as it is done by other private individuals.
... In the absence of any judgment declaring the ownership of the family of the respondents to Sri Gandhamadhana Parvatham temple we are not able to accept the contention of the second respondent.
9. Taking all the above factors into consideration we could safely come to the conclusion that Sri Gandhamadhana Parvatham at Rameswaram is a public religious institution and not a private family property of the respondents as contended by the second respondent. The point is therefore answered in the affirmative and the proceedings closed."
35. The Deputy Commissioner held that Gandhamathana Parvatham is a public institution and the plaintiffs' ancestors had no right of ownership over the suit institution and they declared that it as a public religious institution. As already highlighted above, Ex.A.3 (B.49) would reveal that the plaintiffs' ancestor Neelakanda Bairava Iyer filed the statutory suit after meeting with his waterloo in A.P.No.61 of 1970, which he filed as against the findings as contained in Ex.B.3. The Sub Court in the said statutory suit, O.S.No.30 of 1971 as revealed by Ex.A.3 (B.49) upheld the order of the authorities under the H.R & C.E Department that it is a public institution.
36. It is an admitted fact that as against the judgment as contained in Ex.A.3 (B.49), A.S.No.287 of 1971 was filed before this Court which confirmed the judgment and decree of the trial Court holding the suit institution as a public institution. Wherefore it is clear indubitably and incontrovertibly, the suit institution is a public institution and the authorities concerned negatived the specific plea of the plaintiffs' ancestors that it was their exclusive private temple and property.
37. It is not insignificant to note that the plaintiffs cannot simply ignore the findings given in the previous proceedings that the plaintiffs' ancestors are not the owners of the property concerned over which the temple is situated and that the temple was not installed by them or consecrated by them.
38. The learned Counsel for the plaintiffs would submit that in the previous proceedings under Section 63(a) of the Act, it was decided only to the effect that the said institution was a public institution and nothing more and not about the hereditary trusteeship of the plaintiffs' ancestors and their right over the property concerned. Such a distinction sought to be made by the plaintiffs herein is one that of tweedledum and tweedledee. The finding that it is a public institution and that it did not belong to the ancestors of the plaintiffs, are two sides of a coin and such findings are interlinked, intertwined and interconnected with each other.
39. Not to put too fine a point on it, had really the plaintiffs been the hereditary trustees, then they could have pleaded so in the earlier litigation, but they did not do so, but on the other hand, they pleaded absolute ownership which was negatived. Thereafter, having a volte face and turning turtle, the plaintiffs herein have come forward until a new plea as hereditary trustees quite antithetical and contradictory to their earlier plea.
40. In the previous proceedings, almost all the documents filed by the defendants in the present proceedings have been filed and based on that, in the previous proceedings, the authorities under the H.R & C.E Act, and the Courts appreciated and held that the plea of the third defendant herein that it exercised its effective control and domain over the suit institution and based on that alone, such verdicts emerged. Now, it is only an afterthought on the part of the plaintiffs herein to file one other application under Section 63(b) of the Act, laying claim as though they are the hereditary trustees of the suit institution having management and control over it independently to the exclusion of the third defendant.
41. I am of the considered opinion that the very averments in the plaint are quite antithetical to the adverse finding which they got invited as against themselves in the previous proceedings and it is quite obvious from the above narration of facts and discussion of facts based on documents.
42. The learned Counsel for the third defendant would appropriately and appositely, correctly and convincingly, highlight that Exs.B.4 to B.39 marked before the lower Court in this matter would evince and evidence, prove and demonstrate that the third defendant exercised effective control over the suit institution even earlier to 1895 onwards. He would also correctly argue that all these exhibits were considered in the earlier proceedings and it was litigated upto this Court and adverse findings were given as against the plaintiffs' ancestors and in favour of the third defendant herein to the effect that the third defendant had control over the suit institution.
43. The genuineness of Exs.B.4 to B.39 are beyond doubt and most of those are all ancient documents having evidentiary value of their own and accordingly, the lower Court in page No.4 of the printed judgment, clearly considered the relevancy of the documents and held that the third defendant had control and effective management over the suit institution.
44. Ex.B.4, dated 12.11.1895, is the certified copy of Temple Supervisor's report to Shri.Bhaskara Sethupathy Maharaja of Ramanathapuram Samasthanam, which was marked as Ex.B.11 in the earlier suit O.S.No.30 of 1971. The perusal of it would clearly highlight that Raja of Ramanathapuram Samasthanam had control over both the temples, viz, Sri Ramanathaswamy Temple and Sri Gandhamanaparvatham Temple. The trial Court also in its judgment unambiguously considered this aspect. The suit institution is referred to in the eighth line of Ex.B.4. As such, it is an authentic ancient document clearly establishing the control of the third defendant and the management over the suit institution.
45. It is just and necessary to refer the following documents as under:
Sl.No. Exhibits Dated Details of Documents
1. Ex.B.5 02.07.1895 Piece Work Agreement by Subbiah Kothan to Rameswaram Devasthanam.
2. Ex.B.6 13.03.1904 Certified Copy of letter from Narayanasami Mudaliar to Rameswaram Devasthanam General Superintendent.
3. Ex.B.7 19.03.1904 Certified copy of receipt by Narayanasami Mudaliar to the Khajana for Rs.200/-.
4. Ex.B.8 04.04.1904 Certified copy of entries in Measurement book No.6 of Rameswaram Devasthanam.
5. Ex.B.9 15.04.1904 Certified copy of receipt by Narayanasami Mudaliar to Rameswaram Devasthanam for Rs.300/-.
6. Ex.B.10 24.05.1904 Certified copy of petition by Narayanasami Mudaliar to Rameswaram Devasthanam.
7. Ex.B.11 19.05.1904 Progress report relating to Gandhamadhana Parvatham iron fencing work for April 1904.
8. Ex.B.12 24.05.1904 Certified copy of receipt by Narayanasami Mudaliar for Rs.233.10.0
9. Ex.B.13 19.06.1904 Certified copy of receipt by Kumaravelu Pillai for Rs.66.6.0
10. Ex.B.14 19.06.1904 Certified copy of receipt by Soundaramuthu Pillai for Rs.80/-.
11. Ex.B.15 03.07.1904 Certified copy of receipt by Narayanasami Mudaliar for Rs.74.5.0
12. Ex.B.16 15.04.1905 Certified copy of measurement book No.6 of Rameswaram Devasthanam.
13. Ex.B.17 14.09.1905 Certified copy of receipt by Narayanasami Mudaliar
14. Ex.B.18 20.11.1905 Certified copy of receipt by Narayanasami Mudaliar for Rs.132.7.0
15. Ex.B.19 30.11.1905 Certified copy of receipt by Marimuthu Asari for Re.1/-
16. Ex.B.20 04.01.1906 Certified copy of receipt by Marimuthu Asari for Rs.2/-
17. Ex.B.21 20.09.1907 Progress report relating to Gandhamadhana Parvatham iron fencing work for January 1907.
18. Ex.B.22 27.09.1907 Progress report relating to Gandhamadhana Parvatham iron fencing work for February 1907.
19. Ex.B.23 05.10.1907 Progress report relating to Gandhamadhan Parvatham iron fencing work for March 1907.
20. Ex.B.24.
05.01.1908 Progress report relating to Gandhamadhana Parvatham iron fencing work for November 1907.
21. Ex.B.25 24.01.1908 Progress report relating to Gandhamadhana Parvatham iron fencing work for December 1907.
22. Ex.B.26 19.12.1897 Entries at Page 86 in the Ledger Accounts of Rameswaram Devasthanam.
23. Ex.B.27 19.08.1913 Certified copy of Rameswaram Devasthanam file relating to repair to Gandhamadhana Parvatham.
24. Ex.B.28 09.09.1913 Certified copy of office order by the trustee.
25. Ex.B.29 10.10.1913 Certified copy of Dis.No.1545/1913 with Vouchers of Rameswaram Devasthanam.
26. Ex.B.30 18.09.1914 Certified copy of receipt for Rs.210/- by Contractor T.Ramalinga Kothan for repair to steps in Gandhamadhana Parvatham and estimate etc.
27. Ex.B.31 03.10.1914 Certified copy of receipt for Rs.149/-.
28. Ex.B.32 12.02.1915 Certified copy of Bill for repairing and improving Gandhamadhana Parvatham.
29. Ex.B.33 24.02.1915 Certified copy of IV Bill and Final payment to T.Ramalinga Kothan.
30. Ex.B.34 06.10.1907 Progress report relating to Gandhamadhana Parvatham iron fencing work for April 1907.
31. Ex.B.35 09.10.1907 Progress report relating to Gandhamadhana Parvatham iron fencing work for May 1907.
32. Ex.B.36 09.10.1907 Progress report relating to Gandhamadhana Parvatham iron fencing work for June 1907.
33. Ex.B.37 08.01.1908 Progress report relating to Gandhamadhana Parvatham iron fencing work for September 1907.
34.
Ex.B.38 1902 List of estimate relating to repairs to Rameswaram Koil to dig well near Gandhamadhana Parvatham for Rs.23/-.
35. Ex.B.39 17.04.1913 Work Statement of Rameswaram Devasthanam.
46. As such, all the aforesaid exhibits are relating to the works and repairs carried out in the suit institution by the third defendant and it would clearly torpedo the claim of the plaintiffs that the plaintiffs' ancestors and the plaintiffs as hereditary trustees were allegedly exercising their effective control and management over the suit institution. It is correctly held in the previous proceedings by the lower authorities and this Court that the plaintiffs' ancestors had only Poojamirashi right and nothing more.
47. Had really, the plaintiffs and their ancestors happened to be the hereditary trustees, they must have been able to produce at least some evidence that they also exercised their control over it and effected repairs. The probability and demonstrability of the plaintiffs' case, if true, warrant production of clinching documents. But, absolutely there is no evidence as already set out supra.
48. Ex.B.40 is the list of documents relating to Mandagapadi of Gandhamadhana Parvatham maintained by the third defendant which also supports the case of the third defendant.
49. Ex.B.41, dated 06.11.1894, is the certified copy of the letter from Ag.Head Assistant Magistrate of Ramanathapuram to Rameswaram Devasthanam, to effect repairs concerning the steps in the suit institution. This adds strength to the case of the third defendant and proves that the case of the plaintiffs is totally unsustainable.
50. Ex.B.42, dated 05.07.1911, is the certified copy of the letter from Ag.Sub Collector, Ramanathapuram to Rameswaram Devasthanam, recognising the domain and control of the third defendant over the suit institution and directing the third defendant to perform certain ameliorating steps.
51. Ex.B.43, dated 03.10.1831, is the certified copy of judgment in No.2172 of 1831, on the file of the District Munsif's Court, Paramakudi, which reveals that there was litigation among the ancestors of the plaintiffs relating to Poojamirashi right only.
52. Ex.B.44, dated 02.12.1968, is the certified copy of Field Map No.518, F.M.Book. Ex.B.45, dated 02.12.1968 is the certified copy of Adangal for 518/1, Rameswaram village, for the fasli year 1377 and that would not in any way enure to the benefit of the plaintiffs to lay claim over the suit institution.
53. Ex.B.46, dated 07.09.1971, is the certified copy of the written statement of the defendants 3 to 5 (who are the ancestors of the plaintiffs themselves) in O.S.No.30 of 1971. Certain excerpts from it, would run thus:
"3. The plaintiff and these defendants and their predecessors belong to Maharashtra Brahmin Community. A few generations ago, the predecessor of this family migrated to Rameswaram like other Maharashtra Brahmin families who came to Rameswaram and settled. Out of this community, archakas are being appointed in Sri Ramanathaswami temple for a very long time. Similarly in the suit temple also, the family of these defendants have been doing the pooja service and have been enjoying the income thereon. A perusal of ancient records will show that the plaintiff and these defendants and their predecessors have been claiming pooja rights on miras basis and there had been disputes regarding the same. ....
4. The plaintiff and these defendants' predecessors were similarly performing pujas and enjoying the income of the temple and in as much as there were no Trustees for the temple, the predecessors were effecting minor repairs whenever needed from out the income enjoyed by them from the temple. ....
5. ... During festival in the months of Ani, Adi, and Masi, Sri Ramanathaswami is taken to Gandhamadhana Parvatham and the public attend the functions connected with the festivals in large number. ..........."
As such, the aforesaid excerpts from the written statement filed by the plaintiffs' ancestors viz, Neelakanta Joshi, Radhakrishna Joshi and Chinthamani Joshi, would completely torpedo the case of the plaintiffs herein.
54. Ex.B.48, dated 01.06.1991, is the Kattalai Register, which would show as to how the third defendant exercised its control over the suit institution.
55. The plaintiffs' contention that their ancestors are the hereditary trustees and hence, the plaintiffs herein are also hereditary trustees is nothing but a plea emerged out of mere figment of imagination. But, the plaintiffs' ancestors themselves in Ex.B.4, clearly and categorically admitted that they are not the hereditary trustees; they had no right or control over the suit institution; it has been declared as public institution; they also accepted such status and they are having the right only to do poojas and enjoy the income that they got for doing poojas and nothing more. Put simply, the deposition of P.W.1 is nothing but his ipsi dixit having no evidence to buttress and fortify it.
56. In this factual matrix, my mind is redolent with the maxim "Allegans contraria non est audiendus." {He is not to be heard who alleges things contradictory to each other.}. Here, the said maxim is squarely applicable as against the plaintiffs, due to the fact that quite antithetical to the stand of their ancestors, they placing reliance on their alleged non-existing rights, are claiming hereditary trusteeship concerning the suit institution.
57. The plaintiffs' reliance on the judgment in O.S.No.26 of 1989 filed before the Sub Court, Ramnad, is admittedly covered by the appeal filed before this Court in A.S.No.287 of 1971 which is pending. In that, the plaintiffs and the Government are only the parties and not the third defendant.
58. I would recollect the famous maxim "Non potest adduci exceptio ejusdem rei cujus petitur dissolutio." {A matter, the validity of which is at issue in legal proceedings, cannot be set up as a bar thereto.} is also applicable in this facutal matrix.
59. It is pertinent to note that in paragraph No.IV of the plaint, it is alleged as under:
"IV. the suit property is a place of religious worship. It was founded by an ancestor of the plaintiffs. The institution is very old and its origin is not definitely known and is out of human memory. The tradition is that it was founded by one Neelakanda Sivam alias Neelakanda Iyer alias Neelakanda Joshi, an ancestor of the plaintiffs about 500 years ago. He constructed the massive structure well within his property and he installed the "PEEDAM" on which the Sacred Foot Prints of THE LORD Sri RAMA was carved. He arranged for the daily worship of the 'Peedam' and he constructed mandapam and constituted himself the poojari cum trustee of the institution."
60. The excerpts cited supra would run counter to the claim of the hereditary trusteeship of the plaintiffs. Once, indubitably and indisputably the very temple itself is ancient and it has been in existence from time immemorial and beyond human memory, it is not known how the plaintiffs could contend that five hundred years ago, their ancestor is the founder. It is not the case of the plaintiffs that Lord Rama's foot prints were noted by the plaintiffs' ancestor only recently in the suit institution after they migrated from Maharastra.
61. The concept 'hereditary trustee' ushered in by the plaintiffs is a misconceived one. Section 6(11) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, is extracted hereunder for ready reference:
"Section 6(11). 'hereditary trustee' means the trustee of a religious institution, the succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force;"
(emphasis supplied.)
62. It is therefore crystal clear that the definition 'hereditary trustee' presupposes that there should be 'a founder'. If the founder dedicated his property for the purpose contemplated under the Tamil Nadu H.R & C.E Act, and prescribed the mode of trustees being appointed by the hereditary trustee, then the question of hereditary trusteeship would come into operation. But, a mere reading of the aforesaid definition vis-a-vis the averments in the paragraph No.4, and other parts of the plaint would non-suit the plaintiffs.
63. The learned Counsel for the plaintiffs would also develop his arguments that simply because the third defendant spent some amount given by the donors for being spent on the suit institution, there is no hard and fast rule that it should be assumed that the third defendant was exercising control over the suit institution and it should be treated as third defendant's subsidiary institution.
64. If really, the donor wanted to spend money on the suit institution, it is not known as to why such donor had not directly given the amounts to the plaintiffs or their ancestors.
65. If really, the plaintiffs or their predecessors happened to be the hereditary trustees, then they should have asked the third defendant to give such part of the donation to them and in turn, they ought to have spent it on the suit institution. But, that was not the case of the plaintiffs. In such a case, the argument put forth on the side of the plaintiffs, is neither here nor there and they cannot approbate and reprobate.
66. The plaintiffs, unconvincingly contended that the lower authorities were not justified in holding that the suit institution is a subsidiary of the third defendant; it was beyond the scope of Section 63(a) of the Act; and if at all, any action to be taken, it should be under Section 23 of the Act.
67. The learned Counsel for the plaintiffs cited the following decisions:
(i) Madana Palo and others v. The Hindu Religious Endowments Board, Madras reported in 1937 (II) MLJ 830.
(ii) Raj Kali Kuer v. Pam Rattan Pandey reported in 1955(II) MLJ 49.
(iii) Subramania Pillai v. Trustees, Temple Group reported in 1977 (II) MLJ 77.
(iv) The unreported decision of the Honourable Apex Court in M.S.V.Raja & Another v. Seeni Thevar & Others in Civil Appeal No.2417 of 1992.
68. The first decision cited supra in Madana Palo's case, of this Court is relating to the case where a grant was given to an individual and to his successors by the Inam Commissioner and thereupon, the dispute arose among the descendants and in that context, this Court held about the rights of the hereditary trustees to continue. Here, my above discussion would highlight that the facts are entirely different and the plaintiffs have not proved that at any point, their ancestors are the trustees of the suit institution and as such, there is no question of hereditary trusteeship would arise.
69. The second decision cited in Raj Kali Kuer's case, is on a set of facts where the hereditary rights of Pujari or Archaka was involved and the question arose as to whether a female could be appointed as a trustee by inheritance and in that context, the Honourable Apex Court held that a female also could inherit the hereditary trusteeship and perform pooja through her proxy and as such, it is having no application to the case on hand and no more elaboration is required.
70. The third decision in Subramania Pillai's case is on a set of facts wherein a public trust was recognised, but among the family members concerned, there was a dispute and in that context, the Court held that it could be decided by the Court who should be the hereditary trustee and the comments applied relating to the first decision are also applicable to this case.
71. In the fourth decision in M.S.V.Raja's case, the facts concerned that there was a factual finding to the effect that from time immemorial, the religious denomination of a community of Raju of Singarajakottai were administering the temple and among them, the trustees were elected. However, Pandarams were engaged to perform pooja as Poojaris and those Pandarams claimed hereditary trusteeship, but it was negatived. In those circumstances, the Court ultimately held that the suit temple is a public temple and the management of the suit temple with the religious denomination of Rajus and the relief of declaration and injunction so far it relates to worship in pooja according to usage by Pandarams in the temple is rejected. But, here, absolutely my above discussion would show that the facts are entirely different that the plaintiffs have not proved that they are hereditary trustees.
72. Hence, all the above four decisions are, in my considered opinion, out of context.
73. To the risk of repetition, without being tautologous, I would hold that in view of the overwhelming evidence available on the side of the third defendant and in order to hold that the plaintiffs and their predecessors were not justified in contending that they acquired ownership right or any other right of management over the suit institution, naturally it warranted those authorities to discuss and hold that the suit institution is the subsidiary one of the third defendant and in such a case, I do not see any infirmity in the judgment of the trial Court in holding that the suit institution is the one of the subsidiary institutions of the third defendant and that the third defendant is having effective control over it.
74. The learned Counsel for the plaintiffs would submit that no steps were taken by the temple authorities to obtain patta under the Act 26 of 1963, while admitting that, the plaintiffs' ancestors had not taken any steps to get one in their favour. My mind is redolent with the maxim "Let the accuser be free from accusation". Here, it will not lie in the mouth of the plaintiffs to contend as to why the third defendant did not get patta while they themselves, in fact, had not obtained one in their favour. It is the plaintiffs who approached the Court for relief and forgetting the same, they raise untenable pleas.
75. In fact, the Government records would speak volumes that the Government recognised the pre-existing right of the third defendant even before the commencement of Act 26 of 1963. So, in such a case, as per the provisions of Act 26 of 1963, the third defendant's right over the suit institution is beyond challenge.
76. Trite, the proposition of law, is that irrespective of the issuance or non-issuance of patta, the pre-existing right of the individuals concerned, could be asserted before the Civil Court. Here, the plaintiffs only approached the Court, but they never filed any documents to assert their pre-existing right over the property. Whereas the documents filed on the third defendant's side would speak in favour of the third defendant's right over the suit institution.
77. Hence, considering all these facts, a fortiori, the plaintiffs had no case at all to put forth before the Civil Court claiming that they are the hereditary trustees. Accordingly, au fait with law and au curante with facts, the trial Court correctly dismissed the original suit. The application filed under Section 63 (b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, is turned out to be an ill wind that blew no one any good.
78. Accordingly, the Point No.1 is decided to the effect that the plaintiffs are not hereditary trustees of the suit institution and they have not adduced any significant evidence in support of their plea. The Point No.2 is decided to the effect that there is no infirmity in the orders passed by the Deputy Commissioner or the Commissioner concerned.
79. In the result, the appeal is dismissed, confirming the judgment and decree dated 02.12.2003 passed in O.S.No.156 of 1998 by the Sub Judge, Ramanathapuram, without costs.
rsb To The Sub Judge, Ramanathapuram.