Citation : 2023 Latest Caselaw 6082 Mad
Judgement Date : 13 June, 2023
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.NOs.564 and 565 OF 1999
A.S(MD)NO.564 OF 1999
Appanna Naicker :Second defendant/Appellant
.vs.
1.Palanisamy Naicker
2.Andi Naicker(died)
3.The Commissioner,
Hindu Religious and Charitable Endowments Act,
Madras – 34.
4.The Government of Tamil Nadu,
represented by its District Collector,
Tiruchirappalli. :Defendants 1 to 3/Respondents
5.Chinnammal
6.Andal
7.Balamurugan
8.Minor Kalaiselvi :Respondents 5 to 8/proposed
Respondents 5 to 8
9.Vellaiammal
10.Seelamma Naicker
11.Thatha Naicker
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2
12.Pomma Naicker,
13.Manivasagam
14.Selvakumar :Respondents 9 to 14/proposed
Respondents 9 to 14
(Respondents 5 to 14 are brought on record as Lrs of the deceased
second respondent vide order of this Court made in
C.M.P(MD)Nos.5265 and 5266 of 2017 in A.S.No.564 of 1999)
A.S(MD)NO.565 OF 1999
Seelanayakkanpatti, Thoppanpatti, Sadayampatti,
Thekamalai Ayyanar Temple, represented by its
Hereditory Trustee,
Appanna Naicker. :Plaintiff/Appellant
.vs.
1.Andi Naicker(died)
2.Andiammal
3.Vellaiammal
4.Seelapamba Naicker
5.Kama Naicker
6.Chinnappa Naicker(died)
7.Palanisamy Naicker
8.Chinnammal
9.Andal
10.Balamurugan
11.Minor Kalaiselvi
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3
12.Vellaiammal
13.Seelama Naicker
(Respondents 12 and 13 are deleted as they are already on
record as respondents 3 and 4 vide order of this Court dated
21.12.2022 and the respondents rank is rearranged in view of the
order of this Court, dated 21.12.2022 made in C.M.P(MD)No.12477
of 2022, dated 21.12.2022)
12.Thatha Naicker
13.Pomma Naicker
14.Manivasagam
15.Selvakumar
16.Pommayee
17.Chinnaiyyaa
18.Palanisamy
19.Thangaraj
(Memo presented before the Court on 31,10.2022is recorded, as
Respondent No.14 died and the respondents 2,10,11 and 15 who
are already on record, are recorded as Lrs of the deceased R14
vide order of this Court made in C.M.P(MD)No.9323 of 2017 in
A.S.No.565 of 1999, dated 31,10.2022)
(Cause title amended as per order made in C.M.P(MD)No.8302 to
8309 of 2018 in A.S.Nos.564 and 565 of 1999)
(Respondents 8 to 15 are brought on record as Lrs of the deceased
first respondent vide order of this Court made in C.M.P(MD)No.
9326 of 2017 in A.S.No.565 of 1999, dated 18.11.2022)
(Respondents 16 to 19 are brought on record as Lrs of the
deceased 6th respondent as per order of this Court made in
C.M.P(MD)Nos.1213 to 1215 of 2023 in A.S.No.565 of 1999,
dated 8.3.2023)
https://www.mhc.tn.gov.in/judis
4
PRAYER in A.S.No.564 of 1999: Appeal Suit filed under Section
96 of the Civil Procedure Code r/w Section 70(2) of the Tamil Nadu
Hindu Religious and Endowments Act against the judgment and
decree made in O.S.No.408 of 1995, dated 21.9.1998, on the file of
Sub-Judge, Kulithalai.
PRAYER in A.S.No.565 of 1999: Appeal Suit filed under Section
96 of the Civil Procedure Code r/w Section 70(2) of the Tamil Nadu
Hindu Religious and Endowments Act against the judgment and
decree made in O.S.No.600 of 1995, dated 21.9.1998, on the file of
Sub-Judge, Kulithalai.
A.S.No.564 of 1999
For Appellant :Mr.S.Raghavachari
Senior Counsel
for M/s.S.Ramesh
For Respondent-1 :Mr.E.K.Kumaresan
For Respondent-2 :Died
For Respondent-3 :Mr.G.Mathavan
For Respondent-4 :Mr.D.Sasikumar
Addl.Govt.Pleader
For Respondents :Mr.Lakshmi Gopinathan
5 to 8
For Respondents :Batta with Petition due
9 to 14
A.S.No.565 of 1999
For appellant :Mr.S.Raghavachari
Senior Counsel
for M/s.S.Ramesh
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5
For Respondents : Died
1,6 and 14
For Respondents :Dismissed
2 and 5
For Respondent-3 :No appearance
For Respondent-4 :Mr.A.N.Ramanathan
For Respondent-7 :Mr.P.Mathavaselvam
For Respondents :M/s.Lakshmi Gopinathan
8 to 11 and 15
For Respondents :Mr.M.Karunanithi
16 to 19
COMMON JUDGMENT
************************
Aggrieved over the decree and judgment made in O.S.No.408
of 1995 and O.S.No.600 of 1995, the present two appeal suits
came to be filed.
2.The suit in O.S.No.408 of 1995 is filed by the plaintiffs for
declaration and for other consequential reliefs declaring the second
defendant as not the hereditory trustee of Seelainaickempatti,
Thoppampatti, Sadayampatti, Thekamalai Ayyanar Temples. The
suit in O.S.No.600 of 1995 is filed on behalf of the temples by the
second defendant for recovery of possession of the temple
properties . The trial Court had disposed of both the suits by a
common judgment, dated 21.9.,1998, wherein, in the suit in
O.S.No.408 of 1995, the trial Court has declared that the plaintiffs https://www.mhc.tn.gov.in/judis
in O.S.,No.408 of 1995 and the second defendant are the joint
trustees of the suit temples and they are in possession and
enjoyment of the respective portion of the properties, however,
dismissed the suit in O.S.No.600 of 1995 which is filed for recovery
of possession of the temple properties.
3.The brief facts leading to the filing of O.S.No.408 of 1995 is
as follows:
The suit is filed under Section 70 of the Hindu Religious and
Charitable Endowments Act(in short called as 'Act') to set aside the
order of the first defendant. It is the case of the plaintiffs that all
the temples are in Thappanaikikanpatti Village and
Annasamudreampatti Village in Manapparai Taluk. These temples
do not constitute having regard to the location, as one unit.
Originally, the second defendant's father filed an application under
Section 63(b) of the Act 22 of 1959 in respect of the temples as if
they constitute as one unit and obtained a decree of declaration on
31.1.1975 that he is the hereditory trustee coming within the
meaning of Section 6(11) and 63(b) of the Act. The above said
Order was obtained exparte. No publication whatsoever was made
before passing any order. Further, the order also does not indicate
whether there was any inspection conducted by the Inspector of
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HR and CE Board. No person interested in the administration of the
temples was made as a party therein. After the death of the second
defendant's father, he has claimed to have inherited by way of
succession and has obtained declaration in O.A.No.178 of 1994.
Thereafter, the public at large are not allowed to have offer their
worship in the temple nor they are allowed to participate in the
temple festivals. No festivals are being conducted. Therefore suo -
motu proceedings initiated under Section 59(2) of the Act as
against the order passed in O.A.No.178/1994, is also dropped. A
third party one Karunaisamy Naicker and Kattuva Naicker had filed
an appeal under Section 69(1) of the Act, however, the said appeal
was also dismissed on the ground of delay. Thereafter, the matter
has been taken to Civil Court and the same is dismissed for default
on 5.8.1990. Therefore a suit has been filed challenging the order
of the first defendant on 29.4.1992. Hence a declaration is sought
for.
4.The averments in the Writtten statement, in brief, is as
follows:
The allegation that while passing the order in O.A.NO.178 of
1994, there was no wide publicity, is denied. Having failed to
succeed in the earlier round of litigation challenging the order
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passed in O.A.No.178 of 19994, now the suit has been filed with
false allegations. Therefore the plaintiffs are now estopped from
questioning the validity and enforcing the order passed in O.A.No.
178 of 1994. It is also denied that the order is obtained behind the
back of the public in general. It is the contention that the plaintiffs
father had already filed an appeal challenging the order passed by
the Joint Commissioner and the said appeal was dismissed.
Thereafter, he has also filed a suit in O.S.No.115/1978 and the
same was also dismissed. Therefore the present suit is barred by
the principle of resjudicata, besides the second defendant has also
already filed a suit in O.S.No.368 of 1998 seeking for permanent
injunction as against the plaintiffs.The said suit is not appealed.
Hence prayed for dismissal of the appeal.
5.Based on the above pleadings the Trial Court has framed
the following issues:
1.Whether the order, dated 20.4.1992 is valid in law?
2.Whether the suit is barred by the principle of resjudicata?
3.Whether the Plaintiff is entitled for declareation as prayed
for?
4.To what other relief, the plaintiffs are entitled to?
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6.The brief facts in the plaint in O.S.No.600 of 1995 is as
follows:
It is the case of the plaintiff, who is the second defendant in
O.S.No.408 of 1995 that the Appanna Naicker is the hereditory
trustee for the effective functioning of the temples and the
properties are in their possession and enjoyment. Appanna Naicker
is in the management of the temple and in possession of the
properties. Kist and tax also paid by him. About ten years back, the
defendants 1 to 6 and 7th defendant has made an attempt to
encroach upon the A and B schedule of properties respectively and
encroached upon the properties and they are in possession of the
properties. The properties are agricultural lands. Therefore
despite several attempts being made by the plaintiff to recover the
properties, the possession has not been handed over. Hence the
suit has been filed for the relief as stated supra.
7.The averments in the Written statement, in brief, reads as
follows:
Admittedly, the properties belong to the suit temple It is
denied by the defendants that the Appanna Naicker as the
hereditory trustee and he has no right whatsoever in the temples.
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The allegation that the defendants have encroached upon the
temple properties is denied. They are in enjoyment of the
properties legally for several years. Hence prayed for dismissal of
the suit.
8.Based on the above pleadings, the issues framed in the suit
reads as follows:
1.Is it true that the properties are in possession of ancestors
of the defendants and whether they are in possession of the same?
2.To what other relief, the Plaintiffs are entitled to?
9.Common evidence was recorded in O.S.No.408 of 1995 and
on the side of the plaintiffs, P.W.1 to P.W.3 were examined and
Ex.A1 to Ex.A34 were marked. On the side of the defendants, the
second defendant in O.S.No.408 of 1995 is examined as D.W.1 and
Ex.B1 to Ex.B86 were marked.
10.The trial Court decreed the suit in O.S.No.408 of 1995
declaring that both the plaintiffs and the second defendant are the
joint hereditory trustees and also held that the possession of the
properties with them and dismissed the suit filed in O.S.No.600 of
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1995 filed for recovery of possession. .Aggrieved over the same,
the present appeals came to be filed.
11.The learned counsel for the appellant in O.S.No.408 of
1995 mainly submitted that when the decision as to the
appointment of hereditory trustee has already reached its finality,,
which has not been challenged in time, the plaintiff contending
that other person who is in no way connected with the temples
filed a statutory suit, which is beyond the period of limitation. It is
the further contention that under Ex.B1, the Joint Commissioner
has already passed an order appointing the second defendant's
father as the hereditory trustee and the same has also reached its
finality. The Plaintiff in O.S.No.408 of 1995 has no right to
question the same. It is the further contention that the suit is also
filed challenging the orders passed by the authorities under the HR
and CE Act. It is also got dismissed. Therefore, the present suit is
bared by limitation, whereas, the learned counsel for the
respondents would submit that Ex.B1 is an exparte order that has
been passed merely on the basis of the application given by only
one person and no enquiry whatsoever was conducted with due
publication inviting objections from others. Merely because one
third party has filed a suit, which also got dismissed, the plea of
resjudicata cannot pressed into service as against the present
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appellant. It is the further allegation that the the appellant is in
possesison of the entire suit properties is also not corret. There are
30 acres of land which are in possession of four groups which is
also an admitted one. Hence it is the contention that the trial
Court finding is based on appreciation of evidence, has rightly
declared that the plaintiff and the second defendant as joint
hereditory trustees of the temples in question which does not
warrant any interference.
12.The learned counsel for the HRCE Board would submit
that the temples are now under the control of the fit person and
he is managing the affairs of the temples and the appellant in one
of the suit and other respondents are in possession of the
properties of the temples and they are declared as tresspassors
and necessary proceedings are also inititiated under Section 78 of
the Act for eviction of those persons who are squating over the
properties for all those years.
13.In the light of the above submissions, now the points that
arose for consideration in these appeals are as follows:
1.Whether the order, dated 31.1.1975 in O.A.No.178 of 1994
has reached its finality?
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2.Whether the plaintiff and the second defendant are the
hereditory trustees of the suit temples?
3.Whether the same can be decided by the Civil Court in view
of the specific powers conferred to the Joint Commissioner/Deputy
Commissioner under Section 63 of the HR and CE Act?
4.To what other relief, the parties are entitled to?
14.Points 1 to 4:
The suit temples consists of seven temples and had owned
vast properties measuring to an extent of 30 acres of land. These
facts are not in dispute by both theparties. The main dispute among
the parties is claiming right over the management of the temples
whereas the plaintiff is on one side and the second defendant in
O.S.No.408 of 1995 is on the other side claiming right as
hereditory trustee to manage the suit temples. In that suit one
Appanna Naicker claims to be the hereditory trustee and the same
has been put to challlenge in the statutory suit filed by one
Kattuva Naicker and the same appears to have been dismissed for
default on 5.8.1980. These facts are also not in dispute. Further
who are all the plaintiffs who challenged the order passed by the
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Deputy Commissioner not placed before this Court. No document is
filed. The very dispute has emanted from the orders passed in
O.A.No.178 of 1994, dated 31.1.1975, which is marked as Ex.B1.
On a perusal of the same , it is seen that in respect of the seven suit
temples, an application has been filed by one Nalla Thoppa Naicker
and he is declared as the hereditory trustee of the above temples. It
is relevant to note that the order mainly based on the application
filed by the said Appanna Naicker. The order does not indicate
whether any proper enquiry has been conducted inviting objections
from the persons, who are interested in the affairs of the said
temples. On the basis of an application being filed by one particular
person, the application has been allowed appointing him as
hererditory trustee. On application, Nalla Thoppa Naicker himself
was decared as hereditory trustee of the suit temples on 31.1.1975.
The said order appears to have been challneged by one Kattu
Naicker. The said suit also got dismissed. Exercising the revisonal
powers, the Commissioner has dropped the proceedings and Ex.A2
suo-motu revisional order has proved the same. In the proceedings
initiated under Ex.B1, no one was made as respondent. However, it
appears that one Karunaisamy Naicker and Kattu Naicker as third
parties filed an appeal under Section 69(1) of the Act challenging
the order passed under Ex.B1 with delay of nine months. However,
the appellate authority has dismissed the delay application .
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Thereafter, he seems to have filed a statutory suit under Section
70 before the Sub Court Karur in O.S.No.115 of 1978. The said suit
is also dismissed for default on 5.8.1980. Despite recording those
facts, suo motu revisional procededings has been dropped by the
Commissioner as could be seen from Ex.A2. Therefore from Ex.B1
and Ex.A2 pertaining to the appointment of the hereditory trustee,
it could be held that no enquiry whatsoever was conducted at the
time of appointing one Nalla Thoppa Naicker as Hereditory trustee,
who is said to be the father of the second defendat in O.S.No.408 of
1995. Therefore some third party who has challenged the said
proceedings is not before this Court and only other persons who
are interested in the suit temples and who are in enjoyment of
certain properties challenged the appointment of the hereditory
trustees, marked under Ex.B1. Therefore the said issue has not
been decided on merits and without the presence of the present
plaintiff in O.S.No.408 of 1995, the plea of resjudicata or estoppel
will not arise at all. Therefore the contention of the learned counsel
for the appellant in O.S.No.408 of 1995 cannot be countenanced.
15.As far as Ex.B1 appointment is concerned, only when
there was a dispute, the Joint Commissioner or Deputy
Commissioner is vested with the power to decide such issue and it
is relevant to extract the provision under Section 63 of the HR and
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CE Act , which reads as follows:
''63.[Joint Commissioner or Deputy Commissioner] to decide certain disputes and matters.—Subject to the rights of suit or appeal hereinafter provided, 4[the Joint Commissioner or the Deputy Commissioner, as the case may be], shall have power to inquire into and decide the following disputes and matters:—
(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 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 https://www.mhc.tn.gov.in/judis
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 portion of such property or money shall be allocated to religious uses.''
16.A perusal of the above Section makes it clear that when
there is a dispute as to whether the trustee holds or hold office as
hereditory trustee, such dispute can be decided by the authorities,
whereas Ex.B1 and Ex.A2 makes it clear that mere on the sake of
an application filed by one particular person, he was declared as
hereditory trustee without there being any dispute among others.
17.Therefore though Ex.B1 is of the year 1975, declaring
that Appanna Naicker as hereditory trustee without there being
any dispute, without conducting proper enquiry and without giving
any opportunity to others who are also claiming such right in the
management of the temple, this Court is of the definite view that
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the order passed under ExB1 cannot be sustained in the eye of law.
Though the plaintiff in A.S.No.408 of 1995 claims to be the
hereditory trustee and similarly, the second defendant also
claiming right over the temples, however, no documents
whatsoever has been filed by them to show that prior to 1975, their
ancestors were in management and affairs of the suit temples and
that the trusteeship is hereditory in nature. Ex.A34, Inam Register
indicates that one Thekkamalai Ayyanar temple was in the
management of one Sadayan Ambalam, Kattu Naicker and 12
others. Ex.A34 Inam Register proves the fact that the temple was
under the control of the village people in general. Ex.A34 shows
that the Village Committee acts as a trustee in the temple. There is
no particular family or person shown as trustee. Ex.B66 proves
that patta was issued in the name of one Muthallamman Temple
and the revenue records stand in the name of the said temple.
However, in Ex.A5, name of one Ayyasamy was mentioned as
temporary trustee and agangal has also shown the nature of
cultivation. Ex.A34 and Ex.A3 and Ex.A4 show that the temples
and the properties were under the control of the Village
Committee. The plaintiffs are claiming to be the descendants of
Kattu Naicker. Other documents filed only show that the nature of
kist paid by the persons who are in the management of the temple
properties. It is fairly admitted by the learned counsel for the
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appellant in A.S.No.408/1995 that the appellant is in possession of
14 acres and the remaining lands are with others. This fact is not in
dispute.
18.Such being the position, when the earlier documents
show that all the properties are temple properties and Village
Committee was in the management of the temples, the Trial Court
declaring the Plaintiff and the second defendant as hereditory
trustees is also without any basis and it is relevant to note that if
there is any such dispute with regard to the trusteeship, the same
has to be separately dealt with under the HR and CE Act.The Joint
Commissioner or Deputy Commissioner vested with such power
should enquire such dispute under Section 63(1)(b) of the said Act.
Therefore,the trial Court declaring the plaintiffs and the second
defendant as joint trustees is also beyond the scope of the suit.
When the Civil Court is not given such power to decide the issue
and the specific powers were vested with the authorities under the
HR and CE Act, the same should have been dealt with by the said
authorities. The trial Court ought to have confined its decisions
with regard to the validity of Ex.B1, declaring the father of the
second defendant as hereditory trustee. However, the trial Court
has travelled beyond the scope of the suit and declared the
plaintiffs as well as the second defendant as trustees in the suit
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temples. This Court is unable to accept the fining of the trial Court
in this regard granting declaration by declaring the plaintiff and
second defendant in O.S.No.408 of 1995 as trustees of the suit
temples and the same has necessarily to be set aside and
accordingly set aside.
19.It is now admitted by both sides that a fit person has been
apppointed by the HR and CE Department and he is in control of
the management and affairs of the suit temples.Now it is also
stated by the learned counsel for the appellant, which is not
disputed by others, that proceedings under Section 78 of the Act
has already been initiated by the authorities for the eviction of the
parties who are squating over the temple properties for years
together and the Assistant Commissioner has passed an order
under Section 78 in this regard. This fact is also not disputed by the
learned counsels appearing on either side. It is also relevant to
note that an affiavit has been filed by the Appanna Naicker/the
second defendant to the effect that he and the seventh respondent
had entered into a compromise and agreed to administer the suit
temples by mutual agreement and they have filed a petition to
record the compromise and they also stated in the affidavit that
they will file an application before the Joint Commissioner, Trichy
to form a Committee as per the statute for fixing fair rent for
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enjoying the temple properties. According to him, such
compromise has been entered between himself and the 7th
defendant( who is the first plaintiff in O.S.No.408 of 1995) in
respect of 26.5 acres of lands. The above affidavit makes it clear
that now the plaintiff and the 7th defendant in the suit has entered
into a secret arrangement between themselves in order to ignore
the second plaintiff. That itself creat some serious doubt about the
so called alleged compromise. Therefore, this Court is not inclined
to accept the said compromise. However, the said affidavit is taken
on record to show that they are willing to go before the
authorities for fixing the fair rent for the temple properties,
whereas, it is the contention of the learned counsel for the HR and
CE Department that the proceedings also initiated under the
provisions of the said Act for evicting all those persons who are
squating on the temple properties ie., about 30 acres of land, who
are termed as encroachers. Such being the position, it is for the
authorities either to continue their proceedings under Section 78
of the Act or to regularize the lease by fixing the fair rent as per
law.
20.As this Court has held that the very order declaring one
person ie, the father ofthe second defendant in the suit as
hereditory trustee is not in accordance with law, the same is not
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valid in the eye of law because the proeedings challenging the said
order also not reached its finality, on merits. In fact, the appeal
filed challenging the said order was also beyond the period of
limitation. Similarly the suit filed under Section 78 of the Act
challenging the said order is also dismissed for default. Since
those proceedings are not on merits, the order passed under Ex.B1
cannot be sustained in the eye of law. Similarly, the trial Court
finding that the plaintiff and the second defendant as hereditory
trustee is also set aside. Accordingly, the findings of the trial Court
in O.S.No.408 of 1995. The dismissal of the suit filed for recovery of
possession by the second defendant in O.S.No.600 of 1995 is
confirmed.
21.As far as the hereditory trusteeship is concerned, the
Deputy Commissioner or Joint Commissioner may initiate
proceedings, if the dispute still persists among the various persons
in respect of management of temples. Since the order passed
under Ex.B1 is set aside. The above said authorities are directed to
give opportunity to all the parties, who are all interested in the said
issue and decide the issue afresh and pass orders afresh, in
accordance with law. As far as the immovable properties ie., temple
lands which are in the possession and enjoyment of various
persons, it is stated that appropriate prceedings had already been
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initiated under Section 78 of the Act for eviction of the said persons
from the temple properties. It is for the authorities to proceed with
the process of eviction of the said encroachers or to regularize
their possession by fixing fair rent as per law. The same is left
open to the authorities to decide the same as per law. Accordingly,
all the points are answered.
22.In fine A.S.No.564 of 1999 is allowed by setting aside the
judgment and decree made in O.S.No.408 of 19955 declaraing the
plaintiffs and second defendant as hereditory trustee of the suit
temples and A.S.No.565 of 1999 is dismissed which is filed against
the judgment and decree made in O.S.No.600 of 1995 filed for
recovery of possession of the temple properties. No costs.
13.06.2023
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
https://www.mhc.tn.gov.in/judis
To
1.The Subordinate Judge, Kulithalai.
2.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
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N.SATHISH KUMAR, J.
vsn
COMMON JUDGMENT MADE IN A.S.NOs.564 and 565 OF 1999
13.06.2023
https://www.mhc.tn.gov.in/judis
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