Madras High Court
B.Sukumar vs Jayaprakash Narayanan on 10 December, 2021
S.A.No.772 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 10.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.772 of 2021
B.Sukumar ... Appellant
Vs.
1. Jayaprakash Narayanan
2. K.G.Gopi
3. L. Kalyani
4. L.Vasanth
5. L.Nivetha ... Respondents
PRAYER: Second Appeal is filed under Section 100 of CPC to set aside the
judgment and decree dated 08.02.2021 passed in A.S.No.229 of 2019 by the
Learned XVI Additional City Civil Court, Chennai confirming the judgment
and decree passed by the III Assistant Judge City Civil Court, Chennai in
O.S.No.4245 of 2016 dated 18.07.2019.
For Appellant : M/s.Pavithra
For Respondents : Mr.R.Mahalingam for R3 to R5
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S.A.No.772 of 2021
JUDGMENT
This Second Appeal is directed against the judgment of the learned XVI
Additional Judge, City Civil Court, Chennai in A.S.No.229 of 2019,
confirming the judgment and decree of the learned III Assistant Judge, City
Civil Court, Chennai in O.S.No.4245 of 2016.
2. Appellant/Plaintiff filed a suit in O.S.No.4245 of 2016 against the
respondents seeking the relief of declaration that defendants 2 to 5 are liable
to be evicted by the 1st defendant from the schedule mentioned property and
for Mandatory Injunction directing the 1st defendant to initiate eviction
proceedings against the defendants 2 to 5 and let the portion to any other
person to see that the temple receives rental income and for costs.
3. The case of the appellant, in brief, is as follows:
Appellant's father late Mr.Balasundaram Chettiar constructed the Siddi
Buddi Sundara Vinayagar temple and maintained its properties. There are
totally 6 shops located in the premises. Rents collected from all these shops
were utilised for maintaining the temple. After the demise of
Mr.Balasundaram Chettiar, appellant has become the trustee of Siddi Buddi
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S.A.No.772 of 2021
Sundara Vinayagar and Sri Lakshmi Amman temple. 1st respondent is the
Executive Officer of Arulmigu Angala Parameswari temple and Kasi
Viswanathan temple at Choolai, Chennai and administered Siddi Buddi
Sundara Vinayagar temple and Sri Lakshmi Amman temple. The properties
of these temples are misused by 2nd and 3rd respondents. 3rd respondent's
husband is no more. 1st respondent inducted the 3rd respondent as a tenant
and it is alleged that 2nd respondent sublet the portion to Mr.Loganathan.
Prior to the death of the Mr.Loganathan, 1st respondent issued legal notice
dated 22.04.2013 to the 2nd respondent and the deceased Loganathan
directing them to vacate the premises. 1st respondent is not collecting rents
either from 2nd respondent or 3rd respondent. Since 1st respondent has not
discharged his duties as an Executive Officer and acted adverse to the interest
of the temple, appellant questioned his conduct. Therefore, this suit is filed for
the reliefs aforesaid.
4. It is seen from the case of the 1st respondent that Arulmigu Siddi
Buddi Sundara Vinayagar temple and Sri Lakshmi Amman temple are non-
listed temple. Under Section 46 of Tamil Nadu Hindu Religious and
Charitable Endowments Act (hereinafter referred as "TN HR & CE Act"),
immediate administration is vested with fit person appointed under Section 49
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S.A.No.772 of 2021
(1) of the TN HR & CE Act. Executive Officer was appointed under Section
45(1) of the TN HR &CE Act as a fit person. Temple is situated in 471.71 Sq.
ft. of land. Temple owns 823 sq. ft. in Survey No.2227. There is also an extent
of 248 sq. ft. available in Survey No.2228. Remaining area was rented to 6
persons by the temple authorities and 146.3 sq. ft. of land was leased out to
2nd respondent for a monthly rent of Rs.820/-. It was revised to Rs.1,100/- per
month from 01.11.2001. After periodical enhancement, the present rent is
Rs.1,924/- per month. Loganathan, the husband of 3rd respondent
approached the temple to regularize him as a tenant in the place of 2nd
respondent. The recommendations for this regularisation is still pending. At
this stage, this suit is filed. As per Section 78 of TN HR &CE Act, the
Assistant Commissioner alone is the authority to initiate proceedings under
the TN HR & CE Act. HR &CE authorities are not impleaded as proper and
necessary parties in the suit. Therefore, this suit is bad for non-joinder of the
proper and necessary parties . That apart, this suit is barred under Section 108
of TNHR &CE Act.
5. It is the case of the 3rd respondent that originally 2nd respondent was
inducted as a tenant in the suit property and he handed over possession to the
husband of 3rd respondent Loganathan. 2nd respondent filed a suit in
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S.A.No.772 of 2021
O.S.No.399 of 2000 against Loganathan and the suit was dismissed as
withdrawn. 3rd respondent approached 1st respondent for recognizing his
tenancy. 2nd respondent informed during the course of enquiry that he had
withdrawn his objection for transferring the tenancy to Loganathan's name.
That proceeding is pending for passing final orders. This suit has no merits
and liable to be dismissed.
6. On the basis of above pleadings, the Trial Court framed the
following issues:
1. Whether the said suit is bad for non-joinder of proper and necessary
parties?
2. Whether the suit is bad for want of Sec.80 CPC Notice?
3. Whether the suit is barred u/s.108 of TN HR & CE Act?
4. Whether the Plaintiff is entitled for the relief of declaration as prayed
for?
5. Whether the Plaintiff is entitled for the relief of Mandatory
Injunction?
6. To what other reliefs the parties are entitled for?
7. During the course of Trial, PW1 was examined and Exs.A1 to A7
were marked on the side of the appellant/plaintiff. DW1 was examined and
Exs.B1 to B6 were marked on the side of the respondents/defendants.
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S.A.No.772 of 2021
8. On considering the oral and documentary evidence, the learned Trial
Court Judge found that appellant has not established his locus standi and
legal right to file the suit. It is also found that the authorities under TN HR &
CE Act namely Commissioner or Joint Commissioner or Assistant
Commissioner was not impleaded as parties to the suit. They are the proper
and necessary parties for the disposal of the suit and this suit is bad for non-
joinder of proper and necessary parties. Yet the another reason for dismissing
the suit is that the suit is barred by Section 108 TN HR & CE Act. For the
reasons state above, the learned Trial Judge dismissed the suit. Having
dissatisfied with the judgment and decree of the Trial Court, appellant filed
appeal in A.S.No.229 of 2019. The learned Appellate judge, after perusing the
oral and documentary evidence, submissions of parties and the judgment of
the Trial Court found that there is no reason for interfering with the judgment
of the Trial Court and confirming the judgment and decree, dismissed the
appeal. Aggrieved by the dismissal of the appeal, the appellant has preferred
this Second Appeal.
9. The learned counsel for the appellant submitted that he produced
materials to show that appellant's father was the trustee to the Arulmigu Siddi
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S.A.No.772 of 2021
Buddi Sundara Vinayagar temple and after his death appellant is continuing
as a trustee. 1st respondent enjoined upon the duty to collect the rents from
tenants occupying temple property. However, first respondent has not
discharged his duty in accordance with law. Therefore,the suit was filed. From
the evidence of DW1, the First Appellate Court found that the 2nd
respondent Gopi died. It is submitted by the learned counsel for the appellant
that 2nd respondent Gopi is not dead and he is alive. Finally he submitted that
appellant has produced sufficient material to show the non-payment of rents
by respondents 2 to 5. Without appreciating the evidence properly, the Courts
below wrongly dismissed the suit . Therefore, he prayed for setting aside the
judgment and decree of the Appellate Court and for dismissal of suit by
allowing this Second Appeal.
10. Considered the submissions of the learned counsel for the appellant
and pursued the records.
11. It is seen from the pleadings that appellant's main contention is that
1st respondent has not taken proper action to collect the rents from
respondents 2 to 5. 2nd respondent is not entitled to sub-lease the property to
Loganathan or Loganathan's legal heirs. Appellant filed this suit in his
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S.A.No.772 of 2021
capacity as son of former trustee and he claims that his father Balasundaram
Chettiar alone constructed the temple and was managing the property.
Contrary to the averments made in the plaint, it seen from his evidence that he
admitted that he has not produced any document to show that his father
Balasundaram Chettiar built the temple. He also admitted that he has not
produced any document to show that he is the trustee of the suit temple. He
clearly and candidly admitted that the temple is under the control of TN HR &
CE Department from 1979 to 1980 onwards. It is evident from his evidence
that he has not produced any material to show that temple was constructed by
his father; he was a trustee and therefore, he is entitled to file the suit.
12. The next important thing is that the suit temple is under the control
of TN HR & CE Department from 1978 to 1980 onwards. Thus, this Court
finds that the suit is obviously barred by the principle of non-joinder of proper
and necessary parties for not impleading competent authorities of TN HR &
CE Department.
13. It is seen from Section 108 of TN HR & CE Act that the Civil Court
has no Jurisdiction to entertain suit like this. TN HR & CE Act has in built
provisions for leasing the temple property, fixing rent, enhancing rent,
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S.A.No.772 of 2021
eviction of tenants etc., Section 108 of TN HR & CE Act is extracted
hereunder:
"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 made in this Act
shall be instituted in any Court of Law, except under, and in
conformity with, the provisions of this Act."
When there are provisions for leasing the temple property, fixing rent,
enhancing the rent, eviction of tenants etc in TN HR & CE Act, the appellant
should approach only the authorities under the act to adjudicate the issue.
Civil courts jurisdiction is barred to entertain cases like this.
14. The suit was dismissed on the grounds that appellant has not
established his locus standi, legal right to file the suit; the proper and
necessary party i.e. competent authorities of HR & CE Department were not
impleaded; suit is barred under Section 108 of TN HR& CE Act against the
suit. The First Appellate Court concurred with the findings of the Trial Court.
This Court is also of the considered view that there is no reason to interfere
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S.A.No.772 of 2021
with the views taken by the Courts below. Appellant has not established his
legal right to institute the suit. Proper and necessary party was not impleaded
as defendant and suit is barred under Section 108 TN HR & CE Act. There is
no substantial question(s) of law involved in this Second Appeal.
15. For the reasons stated above, this Court confirms the judgment of
the learned XVI Additional Judge City Civil Court in A.S.No.229 of 2019,
confirming the judgment of the learned III Assistant Judge, City Civil Court,
Chennai in O.S.No.4245 of 2016 and dismisses this Second Appeal. No costs.
10.12.2021
Speaking Order/Non Speaking Order
Index : Yes
Internet : Yes
jai
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S.A.No.772 of 2021
To
1. The XVI Additional Judge,
City Civil Court,
Chennai.
2. The III Assistant Judge,
City Civil Court,
Chennai
https://www.mhc.tn.gov.in/judis
S.A.No.772 of 2021
G.CHANDRASEKHARAN, J.
jai
S.A.No.772 of 2021
10.12.2021
https://www.mhc.tn.gov.in/judis
