K.G. Kuppusamy vs Ramakrishnan
2021 Latest Caselaw 17737 Mad

                                                                        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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                                                                              S.A.Nos.1446 & 1447 of 2008



                     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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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

https://www.mhc.tn.gov.in/judis/ 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

https://www.mhc.tn.gov.in/judis/ 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

https://www.mhc.tn.gov.in/judis/ 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

https://www.mhc.tn.gov.in/judis/ 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.

https://www.mhc.tn.gov.in/judis/ S.A.Nos.1446 & 1447 of 2008

R. HEMALATHA, J.

bga

S.A.Nos.1446 & 1447 of 2008

31.08.2021

https://www.mhc.tn.gov.in/judis/