Madras High Court
R.Krishnan vs The Joint ... on 23 March, 2022
A.S. (MD) No. 149 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 23.03.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S(MD).No.149 of 2017
and C.M.P(MD)No.8790 of 2017
1.R.Krishnan
2.T.R.Sankara Subramanian ... Appellants/Plaintiffs
Vs.
1.The Joint Commissioner/Administration,Tirunelveli,
Tamil Nadu Hindu Religious and Charitable Endowments,
Palayankottai,Tirunelveli.
2.The Commissioner,
Tamil Nadu Hindu Religious and Charitable Endowments,
119, Uthamar Gandhi Road,
Nungambakkam,Chennai – 600 034.
3.The Assistant Commissioner,Tirunelveli,
Tamil Nadu Hindu Religious and Charitable Endowments,
Tirunelveli.
4. The Inspector,
Tamilnadu Hindu Religious and Charitable Endowments,
1/15
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A.S. (MD) No. 149 of 2017
Tenkasi South,Tenkasi. ... Defendants/Respondents
Prayer :This Appeal Suit is filed under Section 70(2) of theTamilnadu
Hindu Religious and Charitable Endowments Act r/w Section 96 of
C.P.C r/w Order 41 Rule 107 C.P.Cagainst the judgment and decree
dated 24.01.2017 made in O.S.No.89 of 2011 on the file of the court of
the Additional Subordinate Judge, Tenkasi.
For Appellants : Mr.G.Sridharan
For Respondents : Mr.P.T.Thiraviam
Government Advocate
JUDGMENT
This Appeal Suit has been preferred challenging the judgment and
decree of the learned Additional Sub Judge, Tenkasi, dated
24.01.2017 made in O.S.No.89 of 2011.
2. The appellants are the plaintiffs. The appellants/plaintiffs have
filed the suit in the representative capacity to call for the proceedings
of the first respondent/defendant made in O.A.No.13 of 1995 and the
proceedings of the second respondent/second defendant in A.P.No.
43/ 2002 D2 and set aside the order dated 01.03.2011 and to allow
O.A.No.13 of 1995 and declare that the Arasalwar Temple situated
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A.S. (MD) No. 149 of 2017
at TenkasiTherkkuMasi Street is a private temple belonging to the
Smartha Brahmins, who are residing in the said street and the said
community people alone have the right of trusteeship and also for
the relief of permanent injunction that the defendants should be
restrained from interfering with the administration of the temple by
appointing any other person belonging to some other community as
Trustees or in any other manner; the appellants/plaintiffs have filed
the suit under Section 70 of the Tamilnadu Hindu Religious and
Charitable Endowment Act (for brevity hereinafter referred to as
‘the Act’) to set aside the order of the second respondent/second
defendant dated 01.03.2011 in A.P.No.43/ 2002 D2 to order
O.A.No.13 of 1995 filed before the first respondent for the above
said reliefs.
3. The case of the plaintiffs is that the subject temple was established
by the community of SmarthaBrahmins of South Masi Street
residing permanently in the said place from time immemorial;
amandapam namely, Santhiya Mandapam is located in northern
padithurai of Chitra river and that mandapam exclusively belongs to
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A.S. (MD) No. 149 of 2017
Smartha Brahmins of South Masi Street, Tenkasi; a very old peepal
tree also stands in the said mandapam; the idol of Lord Vinayaka
was installed in the said temple below that peepal tree 100 years
ago;the deity holds the name ArasalwarSwamy; the idols of
Panchamoorthies have also been installed and they are open to sky;
the temple, being a private temple, no ingredients of a public temple
is present there; the temple does not have any Kodimaram,
Pragaram, Undi or Uthsavamoorthy and it has noUtsavamorthy
swamypurapadu; pooja was conducted once in the forenoon every
day and the worshippers are SwarthaBrahmins of South Masi Street;
no other community has any right to worship; the said community
people perform Aavani Avittam, Gayathri Jebam and Ammavasai
Tharpanamin the Santhiya Mandapam and it is under lock and key,
which is in the custody of the Trustee selected from the community
from time to time; Narasimma Swamy temple, which is situated on
the southern banks of Chitra river, has already been declared as a
private temple of this community in O.S.No.49 of 1985; the
respondents never interfered with the administration of the subject
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A.S. (MD) No. 149 of 2017
temple; but suddenly, the third respondent invited applications from
the public for appointment of trusteeship and hence, the plaintiffs
have filed O.A.No.13 of 1995 before the first respondent under
Sections 63(a) and 63(b) of the Act and prayed to declare the subject
temple is a private temple and that the trusteeship of the temple is
hereditary among the Smartha Brahmins of South Masi Street,
Tenkasi; the first respondent has dismissed the Original Application,
without properly appreciating the facts and hence, the
appellants/plaintiffs filed an appeal petition in A.P.No.43/2002 D2
before the second respondent and the same was also dismissed.
Aggrieved over that, the plaintiffs have filed the statutory suit in
O.S.No.89 of 2011 before the Principal Sub Court, Tenkasi.
4. The respondents/defendants resisted the suit by contending that no
documents have been produced to show that the temple is a private
one and the plaintiffs are not entitled to the reliefs sought for.
5.On the basis of the above pleadings, the learned Principal Sub
Judge, Tenkasi, has framed the following issues:
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A.S. (MD) No. 149 of 2017
1. thjpfs; nfhUk; ghpfhuk; thjpfSf;Ffpilf;fj;jf;fjh?
2.tHf;F Kiwahftidag;gl;L>chpajug;gpdh;fisgpujpepjpj;
Jtg;gLj;jg;gl;Lcs;sjh?
3.tHf;F mtrpajug;ignrh;f;fhjnjh\j;jhy; ghjpf;fg;gLfpwjh?
4.thjpfSf;Ffpilf;fj;jf;f ,jughpfhuq;fs; ahJ?
6. During the course of trial, on the side of the plaintiffs, the second
plaintiff was examined as P.W.1 and two documents were marked as
Ex.A.1 and Ex.A.2. On the side of the defendants, fourth defendant
was examined as D.W.1 and two documents were marked as Ex.B.1
and Ex.B.2. At the conclusion of the trial, the learned Additional
Sub Judge, Tenkasi, dismissed the suit. Aggrieved over that, the
plaintiffs have preferred this Appeal Suit.
7. The learned counsel for the appellants/plaintiff submitted that the
court below had misguided itself and wrongly interpreted the
rationale of the judgment of this Court rendered in Sankara
Subramania Pillai and GanesanVs. the Commissioner, Hindu
Religious and Charitable Endowment Department, reported in 2009
(11) CTCOL 114 and it has chosen to dismiss the suit; the factual
aspects of the case were not adverted into; the suit was dismissed on
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A.S. (MD) No. 149 of 2017
the wrong footing that the plaintiffs have got no right to file Original
Application under Sections 63(a) and 63(b) of the Act seeking
reliefs; in fact, a petition has been filed in I.A.No.134 of 2011 under
Order 1 Rule 8 C.P.C for allowing the plaintiffs to file a suit in
representative capacity and the same was allowed; despite the court
held that the plaintiffs have got right to file the suit in the
representative capacity and the appellants/plaintiffs had agitated to
get the same reliefs which they had already raised in the Original
Application in O.A.No.13 of 1995, the court has wrongly held that
the plaintiffs have sought some other reliefs other than the reliefs
already sought in Original Application; since the court below has
dismissed the suit on some wrong presumptions, the judgment has to
be set aside and the appeal should be allowed.
8.The learned counsel for the respondents/Government submitted
that no document has been produced before the court to show that
the subject temple is a private temple. The court below has rightly
applied a principle set out in Sankara Subramania Pillai and
Ganesan Vs. the Commissioner, Hindu Religious and Charitable
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A.S. (MD) No. 149 of 2017
Endowment Departmentreported in 2009 (11) CTCOL 114 and non-
suited the plaintiffs.
9.On the basis of the rival submissions of the parties, I feel that the
following points for consideration are relevant for the purpose of
this Appeal Suit:
i) Whether the findings of the court below that the
plaintiffs are not entitled to file the suit in the
representative capacity is correct?
ii)Whether the findings of the court below that the
plaintiffs are not entitled to file application under
Sections 63(a) and 63(b) of the Act is correct?
iii)Whether the appellants have sought any other
additional prayer in their suit filed under Section 70 of
the Hindu Religious and Charitable Endowment
Act,other than what was originally sought by them in
O.A.No.13 of 1995?
iv) Whether the appeal is to be allowed or not?
10.The appellants/plaintiffs have filed the suit in the representative
capacity for themselves and for the persons belonging to Smartha
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A.S. (MD) No. 149 of 2017
Brahmins community living in South Masi Street, Tenkasi. In fact,
the appellants/plaintiffs have filed a petition under Order 1 Rule 8
C.P.C seeking permission of the court to allow themselves to file
the suit in the representative capacity in I.A.No.134 of 2011. After
observing due formalities contemplated under the relevant
provisions, the court has allowed the said petition and permitted the
plaintiffs to file the suit in the representative capacity. Having
allowed the appellants to file the suit in the representative capacity,
the court below had lost sight of the previous order passed in
I.A.No.134 of 2011 and recorded a contrary finding that the
plaintiffs have got no right to file suit in the representative capacity.
Since the above finding is just contrary to the orders of the same
court passed in I.A.No.134 of 2011, it is wrong on the part of the
court to observe that the appellants/plaintiffs have no right to file the
suit in the representative capacity. Thus, point No.1 is answered.
11.A cursive reading of the judgment of the court below would show
that the court had convinced itself to dismiss the suit basing on the
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A.S. (MD) No. 149 of 2017
judgment rendered in Sankara Subramaniya Pillai and Ganesan Vs.
The Commissioner of Hindu Religious Endowment Act reported in
2009(6) MLJ 812 = 2009 (11) CTCOL 114. In the said judgment, the
then learned Single Judge M.M.Sundresh.J, as he then had observed
and held that the appellants in that case have filed an Application
under Section 63(b) of the Act to declare himself as a hereditary
trustee and got a negative order on the premise that the subject
temple is a public temple; and so he cannot turn around and once
again file a petition under Section 63(a) of the Act to declare that the
temple itself is a private temple.
12.But, in the judgement of the court below, it is seen that the
learned trial Judge had misconstrued the findings rendered in
Sankara Subramaniya Pillai case. It was misunderstood in such a
way that no person can file a petition before the defendants seeking
the reliefs both under Sections 63(a) and 63(b) of the Act. Such an
understanding on the part of the court below is wrong for the reason
that as per Section 63 of theAct, for issues arising out of any of
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A.S. (MD) No. 149 of 2017
factual aspects listed under Sections 63(a), (b), (c), (d), (e), (f) and
(g), the Joint Commissioner/Deputy Commissioner alone has got the
power to decide. So there cannot be any confusion on that. Thus,
point No.2 is answered.
13.The consistent stand of the appellants/plaintiffs right from the
inception and even while filing Original Application in O.A.No.134
of 2011 before the defendants is that the subject temple is a private
temple and that a particular community has got hereditary
trusteeship. The learned Judge of the court below is wrong in
equating the situation of the present case to the situation of Sankara
Subramaniya Pillai case. The learned trial Judge ought to have
discerned the facts of both the cases and then read the legal position
rendered in the above case. At the risk of repetition, it is made clear
that the appellants have approached the authorities from very
beginning by filing petitions for seeking reliefs under both Sections
63(a) and 63(b) of the Act.There is no contrary stand or conversion
of the reliefs claimed by them from time to time. After the Original
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A.S. (MD) No. 149 of 2017
Application and the Appeal were dismissed, they had rightly
approached the court below by way of filing the suit by invoking the
provision under Section 70 of the Act. The impugned order of the
Deputy Commissioner, Hindu Religious and Charitable Endowment
Act dated 19.06.2002 passed in O.A.No.13 of 1995 would itself
show that the appellants have filed the Original Application seeking
the reliefs under Sections 63(a) and 63(b) of the Act and they have
challenged the same order only before the court. Hence, the Judge of
the court below is wrong in recording a finding that the appellants
have added new reliefs than the one which they had sought before
the Hindu Religious and Charitable Endowment authorities. Thus,
point No.3 is answered.
14.The learned Additional Sub Judge, Tenkasi had misled himself
with regard to the legal aspects and foundational facts and rendered the
judgment without properly appreciating the factual aspects. Hence I feel
it is appropriate to allow this Appeal Suit by setting aside the judgment
and remand the matter to the court below for fresh disposal by giving
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A.S. (MD) No. 149 of 2017
due opportunities to both the parties to produce additional evidence,
if any. Thus, point No.4 is also answered.
In the result, this Appeal Suit is allowed and the judgment of the
learned Additional Sessions Judge, Tenkasi dated 24.01.2017 made
in O.S.No.89 of 2011is set aside. The matter is remanded back to the
file of the concerned court for fresh disposal by considering the
evidence already on record and also by giving opportunity to both
the parties to adduce additional evidence, if any. No costs.
Consequently, connected Miscellaneous Petition is closed.
23.03.2022
Index : Yes/No
Internet : Yes/No
CM
To
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A.S. (MD) No. 149 of 2017
1.The Principal District Judge and Sessions Judge (FAC),
Theni.
2.The Joint Commissioner/Administration,Tirunelveli,
Tamil Nadu Hindu Religious and Charitable Endowments,
Palayankottai,Tirunelveli.
3.The Commissioner,
Tamil Nadu Hindu Religious and Charitable Endowments,
119, Uthamar Gandhi Road,Nungambakkam,Chennai – 600 034.
4.The Assistant Commissioner,Tirunelveli,
Tamil Nadu Hindu Religious and Charitable Endowments,
Tirunelveli.
5. The Inspector,
Tamilnadu Hindu Religious and Charitable Endowments,
Tenkasi South,
Tenkasi.
6.The Section Office, VR Section,
Madurai Bench of Madras High Court, Madurai.
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A.S. (MD) No. 149 of 2017
R.N.MANJULA, J.
CM
A.S(MD).No.149 of 2017
and C.M.P(MD)No.8790 of 2017
23.03.2022
https://www.mhc.tn.gov.in/judis
