Madras High Court
Thillainayagam vs Chidambaram Thillaiamman on 3 January, 2014
Author: S. Palanivelu
Bench: S. Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03 -01-2014
CORAM
THE HONOURABLE MR. JUSTICE S. PALANIVELU
S.A.Nos.832 and 833 of 2002
1.Thillainayagam
2.Thillainatarajan ... Appellants/Appellants/Plaintiffs
[In both appeals]
vs.
1.Chidambaram Thillaiamman
Devasthanam through its
Executive Officer
2.Chidambaram Thillaiamman
Devasthanam through its
Accountant ... Respondents/Respondents/
Defendants 1 & 2
[In both appeals]
Second Appeals are filed under Section 100 of CPC against the Judgment and Decree dated 4.1.2002 made in A.S.Nos.24 and 25 of 2000 on the file of the Subordinate Judge, Chidambaram, confirming the Judgement and Decree dated 29.9.2000 in O.S.Nos.380 and 411 of 1990 on the file of the District Munsif, Chidambaram.
For appellants : Mr.N. Manoharan
(in both Appeals) for M/s.V. Srikanth
For Respondents : Mr.K. Rajasekaran (in both Appeals)
COMMON JUDGMENT
The following are the brief averments find in O.S.No.380 of 1990:
1.(a) The plaintiffs are the hereditary Sthanikas of Sri Thillai Amman Devasthanam. Prior to them their father Ponnambalam Pillai was the Sthanikas Mirasi holder of the temple and the same was recognized and upheld in O.S.No.73/1943 on the file of District Munsif, Chidambaram, to which the then Executive officer and the H.R. & C.E.B oard was also a party. The decree is final and binding on them. Plaintiffs father died in October 1984 and the plaintiffs became the hereditary Sthanikas as his sons as per the Registered Will dated 9.2.1971 executed by the plaintiffs father. That is his last will and testament. The plaintiffs are therefore, entitled to all the rights, privileges, honours and emoluments attached to the said office. The plaintiffs are the custodia legis of all keys of the temple, i.e., one set of Jewel Keys, one set of Hundial Keys to open the temple in the morning and lock the temple at night. They are entitled to 1/4th share of the Net income realised annually and four measures of cooked rice daily. The other set of keys are to be with the Sub-Registrar. Thus except the Plaintiffs and Sub-Registrar, no other person has got any right to the custody of the keys.
1.(b) After the demise of the plaintiffs father, the first defendant, by use of threat and force, took away the keys of the temple Hundials from the plaintiffs. The 1st defendant with the active connivance of the 2nd defendant misappropriated the collections illegally and unlawfully by opening the hundials without intimating the plaintiffs. In order to safeguard their interest and rights as Stanika Mirasis, the plaintiffs moved the Sub-ordinate Court in O.S.No.94/89 and the District Munsif Court in O.S.No.1225/87 to assert their right over the custody of hundial keys, alongwith other prayers and the matter is pending disposal. In O.S.No.94/89 the Plaintiffs got an interim order against the first defendant for payment of arrears of 1/4th share in the annual nett income and an injunction restraining the 1st defendant from opening Hundials of the temple in the absence of the Plaintiffs. The 1st defendant finding that he has no case, entered into a compromiseand a joint memo was filed wherein 1st defendant has agreed to give 7 days prior notice to the plaintiffs and opened the temple Hundials in their presence and the joint memo received by the Subordinate Judge and duly recorded on 2.3.1990. Thus the rights between the plaintiff and the 1st defendant are already subjudice and are pending disposal in a competent civil Court.
1.(c) Enraged by the suits filed by the plaintiffs as well as the compromise effected between the parties, on 27.4.90 at about 10.45 a.m.the first defendant with the support of 2nd defendant and with the help of a set of hirelings at their command, entered into the temple premises, removed silver kavasam and forced to open the steel bureau and damaged the same and went away. The 1st defendant went away a step further and gave a false complaint against the plaintiff.
1.(d) The 3rd defendant asked the plaintiffs to handover all the keys of the tmeple immediately to the Executive Officer and that the Plaintiffs should act according to the instruction of the Executive Officer and that the 3rd defendant himself will forcibily disposes the plaintiffs of the custody of the keys and handover the same to the 1st defendant. The 3rd defendant further stated that the plaintiffs should not distribute kumkum and that the plaintiffs should not bdo any temple work. The 3rd defendant was in no mood in listen to the plaintiffs version. It should be stopped immediately otherise with the support of 3rd defendant, 1st defendant has locked the safety rook in which the jewel safe is kept and swealed the same after brak opening the lock put by the plaintifs.
1.(e) The plaintiffs have no doubt abut the good intention, integrity and honesty of the 3rd defendant, but interfering in the civil rights of the parties which are subjudice will amount to contempt of Court and it are subjudice will amount to contempt of Court and is patently unlawful. The 3rd defendant in his enthusiasm to do justicve is invariably trampeding into the rights of the plaintffs.
1.(f) The mandatory Notice u/s 80 C.P.Cis not applicable to the fact of this case, as the act of the defendants are not acts done by them purporting to be done in their official capacity since the act of damaging the Silver Kavasam by the 1st defendant is a clear Criminal Offence and the interefernce of the 3rd Defendant into a Civil dispute which is under subjudice is clearly ultra vires his powers and since the act of sealing the access to the safe custody of jewels is clearly beyond the powers of the Executive Office, the above acts are not deemed to be act done in their official capacity. Further, there is perfectly no jural nexus between the act and the authority. Thus, the act of the defendants are ultra vires their powers and hence cannot be said to be in their official capacity, thereby it is patently illegal and unlawful and is beyond their powers.
1.(g) Hence, the plaintiffs filed the suit for permanent injunction restraining the defendants from forcibly dispossessing the keys which are in the custodia legis and also permanent injunction restraining the 1st defednant from interfering with the access to safe custody locker of Sri Thillai Amman Temple, with costs.
2. In the written statement of the 1st defendant, adopted by the 2nd defendant the following are averred:
2.(a) The suit it false, frivolous and vexatious and the plaintiffs are not entitled to get any relief. It is true that the plaintiffs father Ponnambalam Pillas was the hereditary Stankar of Sri Thillai Amman Devasthanam and his right was recognized. But the plaintiffs position as Stanikars are not recognized by the Deputy Commissioner, H.R. & C.E., Mayiladuthurai. The first plaintiff is working as a Teacher and the plaintiffs used to get 1/4th of the collections from Hundial after defraying the expenses for festivals. The Sthanikars are not entitled to keep one key for Hundial. He is having the second key of the safe containing the jewels. Clauses 2 and 3 of modified scheme governing the administration of the affairs of the temple, the trustees are necessary parties to this suit. This Court has no jurisdiction to try the suit as per Sec.108 and 42 r/w Sec.63(c) of the H.R. & C.E. Act.
2.(b) When the plaintiffs began to act illegally, this defendant had to take steps to prevent their attrocities. The plaintiffs were keepting illicit liquor and when they were confronted by the defendants 1 and 2, they began to abuse them. Plaintiffs have no right or business to distribute Kumkumam. They have no right to perform any poojas in the temple. The plaintiffs try to exercise extraordinary powers and privileges, which were not available to them under the decree in O.S.No.73/43. Under the H.R.&C.E.Act, as well as under the decree, plaintiffs have no right to have access and possession of jewels. There is no question of damaging the silver Kavasam by the 1st defendant. The act of sealing the access to the safety room where the jewels are kept, is clearly within the powers of the Executive Officer. The suit is filed unnecessarily against the defendant. Plaintiffs cannot claim any right to have possession or access to jewels. The 1st defendant never disputed the lawful rights of the plaintiffs. But they are trying to put pressure upon the defendants to yield to their terms. So far as the custody of the keys as stated in the decree, it cannot refer to the custody of the keys of the jewel box and the jewel room. It refers to the keys of the outer gate and main gate and the gate of the sanctum sanctorum. That is why they are called watch and ward (Meikavalargal). Even if the custody of the jewel rooms that rightg is custailed and taken away under section 42 of the H.R.&C.E.Act. Hence, the suit may be dismissed with costs.
3. The facts contained in the plaint in O.S.No.411 of 90 are all some what similar to the averments found in the plaint of the suit in O.S.No.380 of 1990. The written statement is so also.
4. The plaintiffs have filed the suit in O.S.No.380 of 1990 for permanent injunction restraining the defendants their men and servants from interfering with the rights of the plaintiffs as hereditary Stanika Mirasi and thereby restrain the defendants from forcibly dispossessing the keys which are in the custodia legis of the plaintiffs and also for restraining the 1st defendant and his men from interfering with the access to safe custody locker of Sri Thillai Amman Temple.
5. In O.S.No.411 of 1990 the suit prayer is as follows:
Permanent injunction restraining the defendants, their men and agents from in any manner interfering with the plaintiffs' right of conducting Seva Abbesekams, Archana and Deeparadhanan for daily and different Pooja and rituals for the deities distribution of kumkum to devotees and receiving voluntary contrbutions from the devotees and their right to the possession of trhe room surrounded on the North by Pillayar, on the East by Southern side entrance, on the west by office eastern side wall and on the south by outer wall of Sri Thillai Ammal Temple, measuring 8 = feet x 7 feet on the east of the above said room for performing their official work and cost.
6. The defendants/temple authorities filed suit in O.S.No.469 of 1990 on the file of the District Munsif, Chidambaram. By means of Common Judgment, two suits filed by the plaintiffs in O.S.Nos.380 and 411 of 1990 were dismissed and in O.S.No.469 of 1990 decreed subject to further steps taken by the plaintiffs/temple authorities. The prayer in the suit in O.S.No.469 of 1990 is to the effect that a decree for permanent injunction may be granted in their favour restraining the plaintiffs/hereditary Sthanika Mirasis to sell the Kumkumalm Prasadam or to issue it on free of cost, that they should not perform any Abishegam (holy bath to deities) or to perform any poojas connected to this, that they should not do any Archana or Deepa Arathana (Chanting Mandras or exigeses) from using any portion in the suit temple for their personal occupation for the above said purposes.
7. The trial Court partly decreed the suit to the effect that unless the defendants/temple authorities took steps to get proper order from their superiors, as far the prayer in the plaint that the plaintiffs/hereditary Sthanika Mirasis should not use any portion in the suit temple for their occupation connected to poojas and dismissed the suit with respect to other prayers.
8. Being aggrieved against the judgment, the plaintiffs/Hereditary Sthanka Mirasis preferred first Appeals in A.S.Nos.24 to 26 of 2000 on the file of the Sub-Judge, Chidambaram. They also filed cross objection challenging the finding that the defendants/temple authorities have to get the order from their superior officer. The learned Sub-Judge, Chidamabaram has dismissed the two other appeals but allowed A.S.No.26 of 2000 which was preferred from O.S.No.469 of 1990, dismissing the cross objection. The relief granted in O.S.No.469 of 1990 in favour of the defendants/temple authorities have been set aside by the First Appellate Court. It is significant to note that the defendants/temple authorities have not filed any appeal challenging the Judgment in A.S.No.26 of 2000. It is contented that non appealing from Judgment in A.S.No.26 of 2000 would operate as res judicata as against the defendants/temple authorities.
9. In these Second Appeals, the following common substantial questions of law have arisen for consideration :-
1. Whether the issue of suit notice under Section 80 C.P.C., is necessary in a suit filed against a temple represented by the Executive Officer?
2. Whether the issue of suit notice under Section 80 of C.P.C.is necessary in a suit filed against the Executive Officer in respect of an action not done in official capacity?
3. When the Commissioner of H.R. & C.E. Department is a necessary party in a suit filed against the temple in which neither any of the order of the Commissioner is challenged nor any relief has been asked for as against the Commissioner?
4.Whether Exhibit A-9, a compromise decree entered into between the Archaka and the Temple will extinguish the rights created under prior 1942 letter of the Temple Administration Board, which is inter-parties?
Substantial Questions of law 1 and 2:
10. The plaintiffs contend that they are hereditary Sthanika Mirasis of Thillai Amman Devasthanam, which is situate in Chidambaram Town. Their frather Ponnammabalam Pillas was the Stanika Mirasi and after his death, the plaintiffs became hereditary Stanika as sper the copy of the registered Will dated 9.2.1971 which is Ex.A.10. By means of Ex.A.1 one Vaithyalinga Nadar leased his property on 28.2.1892 in favour of Ponnambalam Pillai who was Great grandfather of plaintiffs. The lease deed was registered. Ex.A-1 is the certified copy. Ex.A.2 is certified copy of plaint in S.C.No.1256 of 1915 on the file of the District Munsif, Chidambaram, between Chinnathambi Pillai and Murugesan Pillai, grandfather of the plaintiffs. Ex.A.3 and 4 are the certified copy of judgment and decree of Ex.A.2. Ex.A.5 is the certified copies of the registered sale deeds executed by one Manickam Pillai in favour of Murugesam Pillai giving his rights of Stanika Mirasi to be enjoyed by him for 22 = days per year.
11. Ex.A.6 is the certified copy of Registered Trust Deed executed by Murugesan Pillai in favour of his son Ponnambalam Pillai, father of plaintiffs on 17.7.1932. Ex.A.7 is letter dated 8.1.1941 written to the father of the plaintiffs Ponnambalam Pillai by the Executive Officer informing Ponnambalam Pillai to be present on 8.1.1941 along with jewel box keys and Hundial keys for verification. Ex.A.8 is dated 7.2.1942 which is a letter addressed to Ponnambalam Pillai by the Executive Officer and Managing Trustee of Sri Thillai Amman Devasthanam, that the rights of Sthanka Mirasi exercised by Ponnambalam Pillai, father of the Plaintiffs are being acknowledged. Ex.A-9 is compromise decree in O.S.No.73/43 on the file of the District Munsif, Chidambaram in which the plaintiff Naganatha Deekshithar admitted the hereditary Sthanika Mirasi of Ponnambalam Pillai S/o Murugesan Pillai. Ex.A.10 is the certified copy of registered Will dated 9.2.1971 executed by Ponnambalam Pillai in favour of his sons, plaintiffs, by means of which he bequeathed all his Sthanika Mirasi rights in favour of his sons, the plaintiffs. Exs.A.11 to A.38 are various letters sent by temple authorities to Ponnambalam Pillai and after him to his sons requiring them to bring the keys of Jewel box.
12. Both the courts below are under the same impression that Section 80 C.P.C. Notice is essential and the plaintiffs should have issued notice before filing the suit. But there is no pleading in the written statement as to the non-compliance of Section 580 C.P.C. Notice prior to filing of the suits. Even then the Courts have faulted that the plaintiffs have not issued notice under Section 80 C.P.C,conveying their desire to get relief as to the prayers contained in the plaint. Only defence raised in the written statement is that the plaintiffs are bound to meet the issue. The suits have been filed only to enforce the rights already possessed by the plaintiffs which was admitted by the temple authorities as early as 1942 as evident from Ex.A.8, which is a document of acknowledgment executed by the then Executive Officer and Managing Trustee of the temple, in which they have accepted all the rights of Ponnambalam Pillai. From Ex.A.8 it can be concluded that the predecessors in the office of the defendants were put to knowledge of the hereditary Sthanika Mirasis of Ponnambalam Pillai and hence, it goes without saying that all the acts done by the predecessor officers of defendants would bind their successors in office. After the life time of Ponnambalam Pillai, his sons, the plaintiffs have been enjoying the rights. It is very well known by the temple authorities continuously as seen from various court records of litigations between both parties.
13. The object of Section 80 C.P.C. in providing for notice is to offer a public Officer concerned, an opportunity to reconsider his legal position and to make if so advised, without litigation. Since the defendants were having already knowledge of all the rights as seen from the records for a considerably long time and the disputes between the parties, in the considered view of this Court, no notice under Section 80 C.P.C is necessary. These substantial questions of law are answered as indicated above.
Substantial Question of law No.3:
14. It is stated by the plaintiffs that the Commissioner of H.R. and C.E. is a necessary party and because of non impleading the authority, the suit is not maintainable. The Commissioner, H.R. and C.E.is not a party to suits. The plaintiffs from the inception have not prayed any relief at the hands of the Commissioner. There are no allegations about the actions done by the Commissioner. In these circumstances I am of the firm opinion that the Commissioner of H.R.& C.E. is not a necessary party and non impleading is not fatal to the case. This substantial question of law is answered in negative.
Substantial Question of law No.4:
15. As far as Ex.A.9 Compromise Decree entered into between Archagar i.e., Naganatha Deekshithar and Ponnambalam Pillai is concerned, at the time of compromise the plaintiff Naganatha Deekshithar has exonerated 4th and 5th defendants who are temple authorities and remaining parties were defendants, the father of plaintiffs and two others. Hence, the compromise decree is not binding upon the defendants. Even then, the rights which are acquired by Ponnambalam Pillai had been accepted by the temple authorities continuously.
16. Ex.A-9 came to existence in 1932 whereas Ex.A-8 was brought about at the instance of temple authorities in 1942. Even though in 1932 Ex.A-9 compromise was entered into, the temple authorities being not the parties to the compromise decree, yet in 1942 the temple authorities have acknowledged the rights and liabilities of the predecessors of plaintiffs. Hence, by no stretch of imagination it could be stated that by means of Ex.A-9, the rights of plaintiffs' predecessors got extinguished. To put it otherwise, it can be stated that the rights of the plaintiffs with the temple have been continuously preserved at the behest of temple authorities also. This substantial question of law is answered accordingly.
17. Interalia, the learned counsel for both sides argued on certain points particularly applying much stress upon the following legal positions which would govern the rights of the parties. This Court is of the view that those points have to be answered and following discussions are made by this Court on the particular points.
The legal Effect of Section 63 of H.R.& C.E. Act:
18. Both the Courts below say in a same tone that the plaintiffs should have approached the Deputy Commissioner for the relief under Section 63 of the Hindu Religious and Endowment Board Act. Section 63 (e) of the Act reads as follows:
"63.Joint Commissioner or Deputy Commissioner to decide certain disputes and matters :- Subject to the rights of suit or appeal hereinafter provided, the Joint Commissioner or the Deputy Commissioner, as the case may be shall have power to inquire into and decide the following disputes and matters:-
(a) to (d) ... ... ... (omitted)
(e) Whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what the established usage of a religious institution is in regard to any other matter."
19. So, in order to defend or get the entitlement of the person concerned with regard to any custom, to any honour, emolument or perquisite and what the established usage of a religious institution is in regard of any other matter, the plaintiffs have to approach the Joint Commissioner or Deputy Commissioner. But in this case, the plaintiffs are not coming to the Court to defend or seeking entitlement of any rights. They filed suits for safeguarding their existing rights, from their grandfather's period. Hence, the plaintiffs need not approach the Joint Commissioner nor Deputy Commissioner of the Hindu Religious and Charitable Endowment Board.
Operation of res-judicata on account of non filing of appeal in O.S.No.469 of 1990 by the defendants:
20. Much was said about the aspect. In support of his contention, the learned counsel Mr.N. Manoharan would rely upon certain authorities :
20.(a) In a decision of the Honourable Supreme Court in AIR 1966 SC 1332(1) [Sheodan Singh v. Daryao Kunwar] the Honourable Judges have observed as follows:
"Where the trial court has decided two suits having common issued on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial Court's decision stands confirmed, the decision of the appeal Court will be res judicata and the appeal Court must deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal Court is to confirm the decision of the trial Court given on merits, and if that is so, the decision of the appeal Court will be res judicata."
20.(b) Similar principles have been reiterated in the following decisions:
i. 2001 (4) CTC 297 [K.A.Perumalsamy v. A.Kandasamy and another] "11. Learned counsel for the respondent raised a legal plea to the effect that the present appeal is also barred by res judicata on the ground that the appellant had not preferred any appeal in respect of the two connected matters, namely, O.S.No. 176 of 1988 and O.S. 80 of 1992. As adverted to, the appellant was the plaintiff in the other two suits and they also relate to the same subject matter of the property covered in O.S.No. 388 of 1988. There is a clear finding against the appellant in respect of the other two suits also and when once the appellant failed to prefer any appeal against the other two judgments, naturally the present appeal also would be barred on the principles of res judicata. In support of his contention, reliance is placed upon the decision reported in Premier Tyres Ltd., v. Kerala State Road Transport Corporation, 1993 Supp (2) SCC 146, wherein it was observed that where two connected suits tried together and finding recorded in one suit became final in absence of appeal, appeal preferred against the finding recorded in the other suit would be barred by res judicata. The same view has been reiterated in Lonankutty v. Thomman and another, , Sheodan Singh v. Daryao Kunwar, AIR 1996 SC 1332 and Vediammal and others v. M. Kandasamy and others, 1997 TLNJ 96. In view of the decisions, it is patently clear that the principle of res judicata is also applicable to the case on hand. The courts below have rightly appreciated the contentions raised by the appellant and there is no illegality or infirmity calling for any interference."
(ii) 2001 (1) MLJ 212 [Renganayaki and another v. K.R.Renganatha Mudaliar] "Thus on the basis of the aforesaid factual as well as legal proposition, it can safely be concluded that where two connected suits have been tried together and the findings recorded in one of the suits have become final, in the absence of an appeal, the appeal preferred against the findings recorded in the other suit would definitely be barred by the principles of res judicata."
21. As far as O.S.No.469/90 filed by the defendants/temple authorities is concerned, after the suit was disposed of, the plaintiffs filed appeal in A.S.No.26/2000 before the Sub-Judge, Chidambaram. The appeal was allowed granting relief of dismissal of the suit filed by the defendants/temple authorities. But they have not filed any second appeal before this Court. Hence, the dismissal order by means of judgment of First Appellate Court is become final and in view of the above stated legal principles governing the field it has to be necessarily observed that the non filing of appeal from the Judgment of A.S.No.26/2000 operates as res judicata in the present appeal against the defendants/temple authorities.
22. In view of the answers given for the substantial questions of law and other points, the unescapable conclusion is that both suits have to be decreed. The Decrees and Judgments of both Courts below are liable to be set aside and they are accordingly set aside. These appeals deserve to be allowed.
23. In fine, both S.A.Nos.832 and 833 of 2002 are allowed. Suit in O.S.Nos.380 and 411 of 1990 are decreed as prayed for. No costs.
03.01.2014
Index : yes
Internet: yes
ggs
Note: Issue order copy by 29.01.2014
To
1.The District Munsif,
Chidambaram.
2.The Sub-Judge,
Chidambaram.
S. PALANIVELU,J.
Ggs
Pre delivery Common Judgment in:
S.A.Nos.832 and 833 of 2002
03-01-2014