Madras High Court
K.G. Kuppusamy vs Ramakrishnan on 31 August, 2021
Author: R. Hemalatha
Bench: R.Hemalatha
S.A.Nos.1446 & 1447 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.08.2021
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.Nos.1446 & 1447 of 2008
and
M.P.Nos.1 & 1 of 2008 and CMP No.5418 of 2021
S.A.No.1446 of 2008
1. K.G. Kuppusamy
2. Devarajan
3. Murugesan
4. Raja
5. Kanthamani ...Appellants
Vs.
Ramakrishnan ... Respondent
S.A.No.1447 of 2008
1. K.G. Kuppusamy
2. Devarajan
3. Murugesan
4. Raja
5. Kanthamani ...Appellants
Vs.
1. R.Ramakrishnan
2. The Executive Officer
A/m. Kottaimariamman Kovil
Omalur Taluk
Salem District.
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3. Sarojini
4. Haribaskar
5. Gayathri ... Respondents
Prayer in S.A. No.1446 of 2008: Second Appeal filed under Section 100
of CPC, 1908 against the decree and judgment dated 26.02.2007 passed
in A.S. No.52 of 2006, on the file of the Sub Court, Mettur, upholding the
decree and judgment dated 31.01.2005 passed in O.S. No.22 of 1996, on
the file of the District Munsif cum Judicial Magistrate, Omalur (O.S.
No.310 of 1988 of District Munsif Court, Mettur).
Prayer in S.A. No.1447 of 2008: Second Appeal filed under Section 100
of CPC, 1908 against the decree and judgment dated 26.02.2007 passed
in A.S. No.53 of 2006, on the file of the Sub Court, Mettur, upholding the
decree and judgment dated 31.01.2005 passed in O.S. No.13 of 1996, on
the file of the District Munsif cum Judicial Magistrate, Omalur.
In S.A. No.1446 of 2008
For A1 : Mr. Sudarshan
For Respondent : Mr. V. Sekar
In S.A. No.1447 of 2008
For A1 : Mr. Sudarshan
For R1, R3 to R5 : Mr. V. Sekar
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COMMION JUDGMENT
The unsuccessful plaintiffs before both the courts below have
filed the present second appeals.
2. For the sake of convenience, the parties are referred to as per
their ranking in the trial court and in appropriate places, their ranking in
the present appeals would also be indicated.
3. The plaintiffs filed two suits, one in O.S. No.22 of 1996 on
the file of District Munsif cum Judicial Magistrate,Omalur, for a
declaration that the notice dated 07.04.1988 issued by the defendant in the
said suit is illegal and null and void and for a consequential relief of
Permanent Injunction restraining the defendant from taking any action in
respect of the said notice and another suit in O.S.No.13 of 1996 on the file
of the District Munsif cum Judicial Magistrate, Omalur, for the relief of
declaration that they have right over the administration of Arulmigu Kottai
Mariamman temple and Pidariamman temple, situate at Omalur and
Neikarapatty village respectively in their capacity as hereditary archakas
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and for a relief of permanent injunction restraining the defendants from
interfering with the plaintiffs' right to administer and perform poojas in the
said temples.
4. The brief averments of the plaint in both the suits are as
follows:
The plaintiffs are the hereditary archakas of the suit temples and
are also managing the affairs of the same. The plaintiffs' ancestors were
the hereditary trustees of the suit temples and certain lands were given to
them as inam lands for the maintenance of the temples. According to the
plaintiffs, the defendants 1,2 and 4 to 6, without any right over the suit
temples, are attempting to interfere with the administration of the temples,
claiming themselves to be the hereditary trustees. It is the further
contention of the plaintiffs that the father of the defendants 1 and 2
fraudulently obtained an order from the third defendant, namely, the
Executive Officer, Arulmigu Kottai Mariamman Koil, Omalur, Salem
District, as hereditary trustee of the suit temples, based on which, the
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defendant in O.S.No.13/96 had issued a notice dated 07.04.1988 to the
plaintiffs seeking for their explanation for certain actions and inactions in
the administration of the temples. According to the plaintiffs, the said
show-cause notice is illegal and null and void.
5. The suit was resisted by the defendants 1,2,4,5 and 6 on the
following grounds.
1) The forefathers of the defendants 1,2,4,5 and 6 were
the hereditary trustees of the suit temples and the first
defendant's father Rajagopala Iyer was appointed as a
hereditary trustee on 18.01.1955 in O.A.No.189/54 on
the file of the Deputy Commissioner, H.R. & C.E
Department, Coimbatore.
2) Subsequently, the defendants 1,2,4,5 & 6 were
appointed as hereditary trustees by the Assistant
Commissioner, H.R &C.E Department, Salem, in
Ne.Mu. 7445/82 dated 13.07.1982 after the death of
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the said Rajagopala Iyer, the father of the first and the
second defendant, and thus the first defendant and the
defendants 4 to 6 are presently the trustees of the suit
temples, who alone have the right to manage the
affairs of the suit temples.
3) The plaintiffs are not the hereditary trustees or
archakas as claimed by them and the genealogical list
appended with the plaint is not true.
4) The plaintiffs have no right to seek the relief of
declaration and injunction as prayed for by them in
both the suits.
5) The Civil court has no jurisdiction to decide the matter
in issue in view of the express bar contained in Section
108 of the H.R. & C.E Act 22 of 1959.
The defendants, therefore, prayed for dismissal of the suit. No
separate written statement was filed by the Executive Officer, Arulmigu
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Kottai Mariamman Kovil, though they were represented by a counsel
before both the courts below.
6. In the written statement filed in O.S. No.22/96, the following
contentions were raised by the defendant (first defendant in O.S.No.13 of
1996)
1) During the pendency of O.S. No.624/86 (transferred to
District Munsif cum Judicial Magistrate Court, Omalur,
and renumbered as O.S. No.13/1996), the plaintiffs
filed an application for a temporary injunction in I.A.
No.1427/86 and the said petition was allowed by the
trial court. Subsequently, the defendant and his brother
(second defendant in O.S. No.624/86), filed an
application before the subordinate Judge, Sankari, in
C.M.A. No.45/87 and the said petition was allowed,
vacating the order of injunction passed in I.A.
No.1427/86 on 25.02.1988. The revision filed by the
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plaintiffs before the High Court, Madras, was also
dismissed.
2) The defendant conducted several festivals after passing
of the order in CMA No.45/87 during the month of
March 1988 i.e. between 02.03.1988 and 12.03.1988
with the permission of the Deputy Commissioner, H.R.
& C.E Department, Salem and also with the assistance
of the Special Festival Officer deputed by the Deputy
Commissioner of H.R. & C.E Department, Salem, and
therefore, it is false to contend that the plaintiffs are
performing poojas and conducting other festivals of the
temples since February 1988.
3) It is not true that notice dated 07.04.1988 to the
plaintiffs contained baseless and imaginary charges. On
the contrary, 9 charges contained in the notice were all
backed by documentary evidence.
4) The poojaries are the servants under the control of the
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hereditary trustee, the first defendant, and he has got
every jurisdiction under the provisions of Section 56 of
the H.R. & C.E Act 22 of 1959 to control and take
disciplinary action against the erring servants.
5) On account of the illegal acts committed by the
plaintiffs, the defendant was constrained to issue the
show cause notice dated 07.04.1988.
6) The plaintiffs also admitted that one of the idols in the
temple was lost on account of their carelessness and
negligence.
7) All the charges leveled against the plaintiffs were
submitted to the Deputy Commissioner, H.R. & C.E
Department, Salem for taking further action and hence
the suit is liable to be dismissed.
7. On the basis of the above pleadings, the trial court framed the
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following issues in O.S. No.22/96..
1) Whether the notice dated 07.04.1988 issued by the
defendant is valid and binding on the plaintiffs?
2) Whether the plaintiffs 3 to 7 can maintain the suit?
3) Whether the trial court has got the jurisdiction to
maintain the suit?
4) Whether the plaintiffs are entitled to the reliefs as
prayed for?
5) To what relief the plaintiffs are entitled?
The following are the issues framed in O.S. No.13/96.
1) Whether the genealogy table filed by the plaintiff is
true and correct?
2) Whether the plaintiffs are hereditary trustees and
managing the suit temple and performing poojas as
hereditary archakas?
3) Whether the defendants 1,2 and defendants 4 to 6 are
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the hereditary trustees as per order in O.A. No.189/59
dated 17.02.82 by the Joint Commissioner H.R. & C.E
Department and the order in Ne.Mu.No.7445/82 B1
dated 17.07.82 of the Assistant Commissioner H.R. &
C.E.?
4) Whether the plaintiffs are prevented from seeking the
relief after the order in M.P. No.8/83 issued by the
Joint Commissioner H.R. & C.E. Department,
Coimbatore?
5) Whether the trial court has got jurisdiction to decide
the suit in view of the order passed by the Deputy
Commissioner in O.A.189/59 dated 17.2.82 and the
order in Ne.Mu.No.7445/82 dated 17.7.82 by the
Assistant Commissioner H.R. & C.E., Salem?
6) Whether the suit is maintainable in the trial court in
view of the H.R. &C.E. Act?
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7) Whether the plaintiffs are entitled to the relief as
claimed?
8) To what relief the plaintiffs are entitled to?
Both O.S. No.13/96 and 22/96 were tried simultaneously and the
documents marked in O.S. No.13/96 were also marked in O.S. No.22/96
by substituting the certified copies of the same. After full contest, the
learned District Munsif cum Judicial Magistrate, Omalur, dismissed both
the suits and the first appellate court also upheld the findings of the learned
District Munsif cum Judicial Magistrate, Omalur.
8. Aggrieved over the decree and judgment of the courts below,
these Second Appeals are filed by the appellants/plaintiffs.
9. Notice of motion was ordered to the respondents and after
several adjournments, both the second appeals were taken up today for
final hearing. In the present appeals the following substantial questions of
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law are mentioned in the memorandum of appeals.
1) Whether the courts below are right in dismissing the
suit when the appellants' rights have been recognised
under Ex.A1 and A2?
2) Whether the courts below are right in holding that the
alleged admission in Ex.B27 would estop the
appellants from claiming hereditary trusteeship?
3) Whether the courts below are right in rejecting the
claim of the appellants on the basis of Ex.B28 when
the same has not decided any rights of other parties?
4) Whether the courts below are right in declaring the
show cause notice dated 07.04.1988 as legal and valid
in considering the oral evidence of D.W.1 alone?
10. Heard Mr. Sudarshan, learned counsel appearing for the
appellants and Mr.V.Sekar, learned counsel appearing for the respondents
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1 and 3 to 5.
11. The specific contention of the plaintiffs is that they are the
hereditary trustees of Arulmigu Kottai Mariamman temple and
Pidariamman temple, situate at Omalur and Neikarapatty village. In order
to establish the same, the plaintiffs mainly rely on the certified copy of the
inam register Ex.A1,which shows that the lands in Survey Nos. 17,24 and
63 of Omalur village were allotted in favour of one Devanna Gounder,
Mohamburi Pandaram, Kuppa Gounder and Venkatraman. The plaintiffs
contend that the aforementioned persons in Ex.A1 are their forefathers and
that they had been clearly mentioned as archakas of Arulmigu Kottai
Mariamman and Pedariamman temples in Omalur and Neikarapatti and
hence, they have got every right to administer the temples as hereditary
trustees.
12. Both the courts below had concurrently held that the
plaintiffs did not adduce acceptable evidence to show that the persons
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mentioned in Ex.A1 are their forefathers or that they are the hereditary
trustees of the suit temples.
13. Both the courts below had further held that one Marappan
and Kuppusamy (father of the first plaintiff and father of the second
plaintiff respectively) filed a petition before the Deputy Commissioner,
H.R. & C.E Department, praying to remove the first defendant and his
father Rajagopala Iyer as hereditary trustees of the suit temples and that
the said petition in M.P. No.8/83 was dismissed on 30.06.1987 after
enquiry as is seen from Ex.B33. Therefore, it is clear that the father of the
first plaintiff and father of the second plaintiff had admitted that the first
defendant and his father late Rajagopala Iyer were the hereditary trustees
of the temples. It is also seen from Hundial Registers Ex.B1 and Ex.B2
that the defendants 1 and 2 and their father were at the helm of affairs of
the temples as hereditary trustees. Apart from this, one Ponnaiya Gounder
had filed a suit in O.S. No.50/39 before the District Munsif, Sankari,
against the grand father of the first defendant. A copy of the plaint in O.S.
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No.50/39 had been marked as Ex.B16. In Ex.B16, the first defendant's
grand father was mentioned as a hereditary trustee of the suit temples.
Ex.B18 is a copy of the decree and judgment passed in the said suit. Apart
from the abovesaid documents, the defendants filed Ex.B5 to Ex.B14,
which are various lease deeds of the years 1942 to 1971, executed by the
forefathers of the first defendant in their capacity as hereditary trustees of
the temples. Furthermore, the Assistant Commissioner H.R. &.C.E
Department, vide his order dated 25.06.1973 (Ex.B34), had given a right
to late Rajagopala Iyer to auction temple lands and on the basis of the said
orders, late Rajagopala Iyer had executed a sale deed dated 20.10.1973 in
favour of one Chinnappa Gounder. A copy of the said sale deed is marked
as Ex.B35. Thereafter, the first defendant had executed lease deeds
Ex.B40 to Ex.B42 to various persons in his capacity as a hereditary trustee
of the suit temples. The first defendant had also sent a reply for the audit
report Ex.B45 to the authorities concerned. It is further seen from the
order dated 12.08.1991 of the Deputy Commissioner, H.R. & C.E
Department, Salem (Ex.B52), that the first defendant is the hereditary
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trustee of the temples. The plaintiffs who have filed the suit for a
declaration and permanent injunction have not proved their case by
adducing acceptable evidence to show that they are the hereditary trustees
of the temples and on the contrary, the overwhelming evidence adduced on
the side of the respondents would go to show that the forefathers of the
first respondent were the hereditary trustees of the suit temples and the
first respondent is presently the hereditary trustee of the temple. The H.R.
& C.E department did not dispute the documents adduced on the side of
the respondents.
14. Mr.Sudarshan, learned counsel appearing for the appellants
contended that the plaintiffs were not aware of the various orders passed
by the H.R. & C.E. Department. He would further contend that both the
courts below had failed to advert their attention to Ex.B28, which does not
decide the rights of the parties. He would also contend that mere
admission made by the father of the first plaintiff and the father of the
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second plaintiff that the first defendant and his father late Rajagopala Iyer
were the hereditary trustees of the suit temples would not take away the
rights of the plaintiffs. He placed reliance upon the decision in
A.Krishnaswami Raja vs.Krishna Raja reported in 1966 79 LW 672 and
contended that the jurisdiction of the Deputy Commissioner under Section
57(b) is confined to a decision whether a trustee holds or held office as a
hereditary trustee and that he is not competent to go into the further
question as to which of the competing claimants is a hereditary trustee or
whether both are joint hereditary trustees. His further contention is that the
matter in issue in the present suit was not covered by Section 57 of the Act
and has to be decided only by a separate suit. Reliance is also placed
upon the decision in the Commissioner, H.R and C.E. (Admn.)
Department, Nungambakkam, Madras v. Senthamarai Kannan (Died)
and Others reported in 2002 2 LW 695, wherein in paragraph 13(1), it
has been held thus:
"13.1. In Babu Gurukkal v. Commissioner for H.R. & C.E.
Board, (1964)1 MLJ. 384, wherein Hon'ble Justice
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K.Veeraswami, as he then was, held as under:
“Small temples in South India often have only poojaris who
by long custom or usage look after the affairs of the
temples where they serve as gurukkals; they function in a
dual capacity, namely Poojari cum Trustee. Such a
combination of offices is not necessarily opposed to public
policy or contrary to law. In the case of such small
temples, there is a presumption that the Poojari himself is
the hereditary Trustee and there is nothing illegal in the
hereditary Trusteeship and Poojariship being combined in
the same person in such small temples. When the
documentary evidence including the Inam Register shows
that for more than three generations the poojariship cum
Trusteeship in a temple was in the same family and
descended from father to son and there is no evidence to
show that this was not so or could not be so, the
presumption is all the greater, and it must be held that
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the members of the family are hereditary Trustees of the
temple.”
His specific contention is that the plaintiffs are the poojaris by
long custom or usage and they are looking after the affairs of the temples.
15. Per contra Mr.V.Sekar, learned counsel appearing for the
respondents 1 and 3 to 5 relied on the following decisions
1) The Principal Secretary, H.R. & C.E Department,
Chennai & others vs. G. Paramasivam & others
reported in CDJ 2015 MHC 7366
2) The Executive Officer, Arulmigu Pandimuneeswar
Thirukovil, Madurai vs. P. Seethalakshmi reported in
CDJ 2017 MHC 3536
and contended that
a) In view of the bar provided under Section 108 of the
H.R. & C.E. Act, the Civil suit is not maintainable.
b) If at all the plaintiffs have any right to claim the
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administration or management of the suit temples, the
same can be done only by approaching the competent
authority under the Act.
c) A poojari is a servant of the temple and falls within the
meaning of Section 55 of the H.R.& C.E. Act and if
any servant of the temple is aggrieved by the
administrative decision, the appropriate remedy is
provided under the Act and when there is such a
provision under the Act to determine or decide a
dispute, a civil suit shall not be maintained.
16. At the outset, it may be observed that the plaintiffs who have
filed the suit seeking for a declarative decree that they are the hereditary
trustees of the suit temples should prove their case by adducing acceptable
evidence. In the instant case, no evidence was adduced by the plaintiffs to
show that they are the hereditary trustees. Both the courts below had
analysed the evidence on record in a threadbare manner and dismissed
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both the suits filed by the plaintiffs. As already observed, the father of the
first plaintiff and the father of the second plaintiff had admitted that the
first defendant and late Rajagopala Iyer (father of the first defendant) were
the hereditary trustees of the suit temples and the learned counsel for the
appellants had now taken a new plea that small temples in south India
often have only poojaris, who by long custom or usage look after the
affairs of the temples where they serve as gurukkals. Such a plea was not
specifically taken in their plaint. His contention is that the petition in
Ex.B32 was dismissed by H.R. & C.E. officials only for non prosecution
as is seen from Ex.B33 and therefore, the same would not confer the
respondent with any right over the suit temples. The father of the first
plaintiff and father of the second plaintiff admittedly did not file any
appeal/revision against the orders passed by the Deputy Commissioner,
H.R. & C.E. department. However, the fact remains that even the father
of the first plaintiff and the father of the second plaintiff admitted that the
first defendant and his father late Rajagopala Iyer were the hereditary
trustees of the suit temples. Both the courts below had concurrently held,
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of course, based on the evidence adduced by both the parties that the
plaintiffs are not the hereditary trustees of the suit temples. Cogent
reasons have also been given by both the courts below for arriving at such
a conclusion.
17. As far as the maintainability of the suit is concerned, while
the trial court held that both the suits are barred under Section 108 of the
Act, the first appellate court held that since the dispute relates to the suit
temples between the two private parties and that the H.R. & C.E.
department is not directly concerned in the issue, the civil court is not
barred in view of the express provision contained in Section 108 of the
H.R. & C.E. Act. It is appropriate to extract Section 108 of the H.R. &
C.E. Act.
Section 108. Bar of suits in respect of administration or
management of religious institutions, etc.—No suit or
other legal proceeding in respect of the administration or
management of a religious institution or any other matter
or dispute for determining or deciding which provision is
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made in this Act shall be instituted in any Court of Law,
except under, and in conformity with, the provisions of
this Act.
A reading of the above provision shows that no suit or other
legal proceeding in respect of the administration or management of a
religious institution or any other matter or dispute for which the provision
is made under the Act, is barred under Section 108. Section 108 of H.R.
& C.E. Act has two limbs. The first relates to the administration or
management of a religious institution and the second relates to any other
matter or dispute for the determination of which, a provision is made in the
Act. Section 63 of the Act empowers the Joint Commissioner or Deputy
Commissioner to decide certain disputes and matters. They are
a) whether an institution is a religious institution;
b) whether a trustee holds or held office as a hereditary
trustee;
c) whether any property or money is a religious
endowment.
d) whether any property or money is a specific
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endowment.
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.
f) whether any institution or endowment is wholly or
partly of a religious or secular character; and whether
any property or money has been given wholly or partly
for religious or secular uses ; and
g) where any property or money has been given for the
support of an institution which is partly of a religious
and partly of a secular character, or the performance of
any service or charity connected with such an
institution or the performance of a charity which is
partly of a religious and partly of a secular character or
where any property or money given is appropriated
partly to religious and partly to secular uses, as to what
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portion of such property or money shall be allocated to
religious uses.
Therefore, Section 63 of the Act empowers the Joint
Commissioner or the Deputy Commissioner to enquire into and decide the
dispute whether a trustee holds or held office as a hereditary trustee.
In Dhulabhai etc., vs. State of Madhya Pradesh reported in
AIR 1969 SC 78, a constitution Bench of the Supreme Court considered
the question of bar of jurisdiction of Civil Courts, with reference to various
statutes and laid down certain principles in paragraph 35. The relevant
portion is extracted hereunder:
"35. .. .. The result of this inquiry into the diverse views
expressed in this Court may be stated as follows:-
(1) Where the statute gives a finality to the orders of the
special Tribunals the Civil Courts' jurisdiction must be held
to be excluded if there is adequate remedy to do what the
Civil Courts would normally do in a suit. Such provision,
however, does not exclude those cases where the
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provisions of the particular Act have not been compiled
with or the statutory Tribunal has not acted in conformity
with the fundamental principles of judicial procedure. (2)
Where there is an express bar of the jurisdiction of the
Court, an examination of the scheme of the particular Act
to find the adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to sustain the
jurisdiction of the Civil Court.
Where there is no express exclusion the examination of
the remedies and the scheme of the particular Act to find
out the intendment becomes necessary and the result of
the inquiry may be decisive. In the latter case, it is
necessary to see if the statute creates a special right or a
liability and provides for the determination of the right or
liability and further lays down that all questions about the
said right and liability shall be determined by the
Tribunals so constituted, and whether remedies normally
associated with actions in Civil Courts are prescribed by
the said statute or not. .. .. .. .. .. .. .. ..
.. .. .. .. .. .. .. ..
(7) An exclusion of the jurisdiction of the Civil Court is not
readily to be inferred unless the conditions above set
down apply."
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18. In a decision in S. Rangaya Gounder vs. Karuppa Naicker
reported in 1971 (1) MLJ 358, it was held that when the substantial
dispute between the parties is as to which of them are the persons entitled
to be in management and when the dispute centres around the question as
to which of the rival claimants are entitled to celebrate the annual festival,
it would not fall within the ambit of Section 63 and hence the bar
under Section 108 would not apply.
In Sri Vallaba Ganesar Devasthanam vs. A.Anandavadivelu
Mudaliar reported in 1980 (I) MLJ 140, it was held that if in a suit any
matter in respect of which a provision is made under the Act had to be
incidentally decided, the jurisdiction of the Civil Court will not be
excluded.
In Inspector/Fit Person, HR&CE, Arulmighu Sundaresa
Gnaniar Koil, Dharapuram vs. Amirthammal reported in 2003 (1) MLJ
435, a Division Bench of this Court referred to two decisions of the
Supreme Court in State of Madras vs. Kunnakudi Melamatam alias
Annathana Matam reported AIR 1965 SC 1570 and in Sri Vedagiri
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S.A.Nos.1446 & 1447 of 2008
Lakshmi Narasimha Swami vs. Induru Pattabhirami Reddi reported in
AIR 1967 SC 78 and held that a suit for a declaration that the property is
not a public temple, would fall under Section 63(a) and that it was not an
incidental question and therefore, the dispute should be adjudicated only
by the competent authority in the first instance.
19. In the decision in the Executive Officer, Arulmigu
Pandimuneeswarar Thirukovil, Madurai, vs. P. Seethalakshmi9
reported in CDJ 2017 MHC 3536 relied on by the learned counsel for the
respondents 1,3,4 and 5, it has been held thus
"11. The principles on which the jurisdiction of the Civil
court is excluded under Section 108 of the Act are now
well settled. If the dispute raised in the suit relates to the
administration or management of a religious institution or
any other matter for the determination of which a
provision has been made in the Act the bar under Section
108 of the Act will be attracted. On the other hand, if the
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S.A.Nos.1446 & 1447 of 2008
question arising for adjudication falls outside the scope
and ambit of Section 108 of the Act then the Civil court
will have jurisdiction to entertain the suit and the bar of
exclusion of jurisdiction provided for under Section 108
cannot be invoked."
Therefore, the above decision makes it clear that if the dispute is one for
the determination of which, a provision has been made in the Act, then the
civil Court's jurisdiction is ousted. But if a question for the determination
of which, a provision has been made in the Act arises only incidentally for
consideration in a civil suit, then the civil court's jurisdiction is not ousted.
20. Keeping the above principles in mind, we have to look into
the facts of the present second appeals. The prayer in suit No.
O.S.No.13/96 is for a declaration of the right of the plaintiffs to administer
the temples in their capacity as hereditary trustees and for a consequential
relief of permanent injunction. Therefore, the main issue that arose for
consideration in the suit was whether the plaintiffs are the hereditary
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S.A.Nos.1446 & 1447 of 2008
trustees of the temples and it cannot be said that the question whether the
plaintiffs are the hereditary trustees of the temples arose incidentally to
the main issue involved in the suit. The case pleaded by the plaintiffs and
the relief sought for both depended entirely upon the answer to the
question whether they are the hereditary trustees of the suit temples.
Since the said question constitute the very life line of the case, the same
cannot be said to be incidental or an ancillary issue. It is also clear from
the pleadings, the issues framed and the evidence let in that the question
whether the plaintiffs are the hereditary trustees is the substantial issue that
arise for consideration and such an issue falls within the ambit of Section
63(b) of the Act. Therefore, the trial court was right in concluding that the
jurisdiction of the civil court is ousted in view of the provisions of Section
108 of the H.R. & C.E. Act.
21. However, both the courts below, on merits, had held that the
plaintiffs have not established their right over the suit temples as
hereditary trustees. The evidence adduced on both sides have been
analysed in the proper perspective and this court does not find any reason
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S.A.Nos.1446 & 1447 of 2008
to interfere with the findings recorded by both the courts below. It is also
pertinent to point out that in O.S. No.13/96, the plaintiffs have not even
pleaded that they are the hereditary trustees of the suit temples. On the
other hand, they have averred that they are the hereditary archakas.
Archakas are the servants under the control of the hereditary trustees and
therefore, the first defendant has every right to take action against the
servants. It is also pertinent to point out that the plaintiffs did not produce
a copy of the said notice dated 07.04.1988, though they have sought for a
declaration that the said notice is null and void. Therefore, in view of the
abovesaid reasons, I hold that no substantial question of law is involved in
the present appeals.
22. In the result,
1) The second appeals are dismissed. No costs.
Consequently, connected miscellaneous petitions are
closed.
2) The decree and judgment passed by both the courts
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S.A.Nos.1446 & 1447 of 2008
below are upheld with costs.
31.08.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Sub Court, Mettur.
2. The District Munsif cum Judicial Magistrate, Omalur.
3. The Section Officer, V.R. Section, High Court, Madras.
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S.A.Nos.1446 & 1447 of 2008
R. HEMALATHA, J.
bga S.A.Nos.1446 & 1447 of 2008 31.08.2021 Page 34 of 34 https://www.mhc.tn.gov.in/judis/