Madras High Court
S.Pappammal vs The Commissioner on 3 February, 2021
A.S.(MD)No.27 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)No.27 of 2020
and
C.M.P.(MD)No.1246 of 2020
S.Pappammal ...Appellant/
Plaintiff
Vs.
1. The Commissioner,
O/o. Tamil Nadu Hindu Religious and
Charitable Endowment Board,
Nungampakkam High Road,
Chennai – 34.
2. The Joint Commissioner,
O/o. Hindu Religious and Charitable
Endowment Board,
West Chithirai Street,
Madurai.
3. The Fit Person,
Arulmigu Varatharajaperumal Temple,
Kasvanampatti Village,
Dindigul,
O/o. Arulmigu Gopinathaswamy Thirukovil,
Reddiyar Chathiram,
Dindigul. ... Respondents/
Defendants
PRAYER: This Appeal Suit is filed under Section 96 of C.P.C. against the
Judgment and Decree dated 19.08.2019 made in O.S.No.208 of 2014 on the file of
1/9
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A.S.(MD)No.27 of 2020
the learned Additional Sub Judge, Dindigul.
For Appellant : Mr.S.Madhavan
For Respondents : No appearance for R1 and R2
Mr.A.K.Baskara Pandian for R3
JUDGMENT
Aggrieved over the dismissal of the suit, the present appeal has been
filed by the plaintiff. The suit was originally filed to declare the plaintiff as
hereditary trustee of Arulmigu Varadaraja Perumal Temple, Kasavanampatti,
Dindigul District and consequently, to restrain the defendants, their men and agent
from in any way interfering with the administration of the said temple.
2. For the sake of convenience, the parties are referred to herein, as
per their rank before the Trial Court.
3. The brief facts, leading to the filing of this Appeal Suit, are as
follows:-
(i) The suit is filed in respect of Arulmigu Varadharaja Perumal
Temple, Kasavanampatti Village, Dindigul District. The suit temple dedicated to
the worship of Arulmigu Varadharaja Permal. The temple was founded by one
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A.S.(MD)No.27 of 2020
Venchattiyan about 200 years ago. The founder Venchettiyan performed poojas
and looked after the management of the temple till his life time. After the demise
of the founder of the temple, his son Mr.Thirumalai Thasari and his grandson
Mr.Ramasamy Thasari, inherited the right of management as hereditary trustee and
accordingly, till their life time, they managed the temple. After the demise of
Mr.Ramasamy Thasari, his son Rangasamy inherited the right of the management
of Temple. After the demise of Mr.Rangasamy, his son Mr.Gopal Naicker
inherited the right of the management of the temple. After the death of Gopal
Naicker, his daughter Pappammal and her cousin brother Mr.Perumal Naicker
were in the management, administration of the Temple and they performed pooja
to the deity. Later, Mr.Perumal Naicker died as a bachelor leaving the right of
management of the temple as hereditary trustee exclusively on the plaintiff.
Accordingly, the plaintiff is in management of the temple as hereditary trustee
exclusively. The plaintiff filed an application before the second defendant under
Section 63(b) of the HR&CE Act 1959 (Tamil Nadu Act 22 of 1959) to recognize
her status as hereditary trustee. The said application was numbered as O.A.No.12
of 1999. Though the said application was dismissed on 20.11.1995, an appeal was
filed against that dismissal order, before the Commissioner, along with the
application to condone the delay, which was also dismissed. Aggrieved over the
same, the suit has been filed to set aside the order of the first defendant.
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A.S.(MD)No.27 of 2020
(ii) The 3rd defendant disputed the same, contending that there is no
relationship between Ramasamy Thasari and the plaintiff and even in the
Settlement Proceedings under the Act 26/1948, Ramasamy Thasari was shown as
temporary poojari. Further, in the enquiry conducted under the Tamil Nadu Minor
Inam Abolition Act 30/1963, whether the plaintiff's predecessors participated in
the enquiry or not and there is no evidence that the plaintiff was in management
and administration of the temple and in possession of the property in dispute.
(iii) The trial Court framed six issues. On the side of the plaintiff,
P.W.1 to P.W.3 were examined and Exs.P1 to P16 were marked. On the side of the
defendants, one V.Balamurugan was examined as D.W.1.
(iv) The trial Court, having considered the issues, has non-suited the
plaintiff mainly on the ground that the order of the first defendant is not
challenged and no declaration is sought for in this regard and therefore, dismissed
the suit, mainly on the ground that the question of hereditary trustee cannot be
gone into the Civil Suit and only the Commissioner, under HR&CE Act, has
jurisdiction to decide those issue. Aggrieved against the same, the present appeal
has been filed.
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A.S.(MD)No.27 of 2020
4. Heard the learned counsel for the appellant and the respondents.
5. It is the contention of the learned counsel for the appellant that the
suit is filed under Section 70 of the Act, challenging the order of the
Commissioner and mainly because the prayer, seeking to set aside the order of the
Commissioner, is not included, the suit ought not to have been non suited and
therefore, prayed for allowing the appeal.
6. The learned counsel for the respondents submitted that no
declaration is sought for with regard to the order of the first respondent and
therefore, the suit is not maintainable.
7. In the light of the above submissions, the points for consideration
are a) whether the lower court is correct in non-suiting the plaintiff mainly on the
ground that no prayer, to set aside the order of the first respondent, is shown in the
relief column and b) whether the suit is filed under Section 70 of the HR&CE Act.
8. A perusal of the materials shows that though six issues have been
framed by the trial Court as already indicated, the Trial Court dismissed the suit
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A.S.(MD)No.27 of 2020
mainly on the ground that no declaration is sought for in respect of cancelling the
order of the first respondent. The trial Court further held that since the suit is filed
for declaration declaring that the plaintiff is the hereditary trustee of the temple,
the Civil Court has no jurisdiction to entertain the same.
9. It is not in dispute that the plaintiff filed O.A.No.12 of 1992 to
declare her as a hereditary trustee. The application has been filed under Section
63 of the HR&CE Act. It is not in dispute that the above application was
dismissed on 20.11.1995. Challenging the same, the plaintiff has filed an appeal
before the Commissioner under Section 69 of the HR&CE Act along with the
application to condone the delay. The Commissioner, while entertaining the
appeal, dismissed the application filed to condone the delay and thereby, the order
passed by the first respondent reached finality. Challenging the order passed by
the Commissioner, the suit has been laid under Section 70 of the HR&CE Act.
Therefore, this Court is of the view that merely because, the independent prayer is
not sought for in the relief column, challenging the order of the Commissioner
separately, the trial Court ought not to have non suited the plaintiff, as the very suit
is filed under Section 70 of the Act, challenging the order of the Commissioner.
Further, para-3 of the plaint makes it clear that the suit itself is filed under Section
70 of the Act seeking to set aside the orders of the first and second respondents
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and a consequential declaration is sought to declare the plaintiff as hereditary
trustee. Therefore, when the plaint averments mainly intended to cancel the orders
passed by the authorities, it cannot be said that since no relief for cancellation of
orders of the first and second respondents is sought separately in the relief column
and the suit is not maintainable. The very suit is laid under Section 70 of the Act,
challenging the orders passed under Sections 63 and 69 of HR&CE Act. In such
view of the matter, the Judgment of the trial Court in non suiting the plaintiff is not
sustainable in law. The trial Court, by giving much emphasis in Section 108 of the
HR&CE Act, came to the conclusion that the Civil Court jurisdiction is barred to
decide the issue with regard to the hereditary trustee.
10. It is to be noted that what was the challenge originally in the suit
is the orders of the first and second respondents and mainly because no relief is
sought for in respect of such orders, it cannot be said that the plaintiff is invoking
civil jurisdiction to declare her as hereditary trustee for the first time. In such view
of the matter, the Judgment of the trial Court is not based on proper application of
law. The Trial Court has not even decided the other issues and simply non suited
the plaintiff only on the jurisdictional issue. In such view of matter, the Judgment
of the trial Court is not sustainable in law.
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A.S.(MD)No.27 of 2020
11. Accordingly, the Second Appeal is allowed and the Judgment and
Decree dated 19.08.2019 made in O.S.No.208 of 2014 on the file of the learned
Additional Sub Judge, Dindigul, are set aside. The matter is remitted back to the
trial Court to decide the suit afresh as per law. The plaintiff is also permitted to
make necessary amendment in the relief column, within one month from the date
of receipt of a copy of this order. After issuance of notice, the Trial Court shall
proceed with the suit in accordance to law and dispose of the same as
expeditiously as possible, preferably, within six months from the date of
amendment. No costs. Consequently, connected miscellaneous petition is closed.
12. The Registry is directed to send all the records to the trial Court
immediately.
03.02.2021
Index : Yes/No
Internet : Yes/No
ogy
To
1. The learned Additional Sub Judge,
Dindigul.
2. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.27 of 2020
N.SATHISH KUMAR, J.
ogy
A.S.(MD)No.27 of 2020
03.02.2021
http://www.judis.nic.in
