Madras High CourtJ.Thambirajan vs R.P.S.Bhuvanalingam on 26 November, 2008Author:A.C.Arumugaperumal AdityanBench:A.C.Arumugaperumal AdityanBEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 26/11/2008

CORAM
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN

S.A.(MD)No.469 of 2000
and
C.M.P.(MD)No.3973 of 2000

1.J.Thambirajan
2.J.Parangiri
3.R.Murugesan
4.R.Madhavan
5.R.Swarnamoorthy
6.K.Alagendran
7.K.Sundar
8.J.Kumaresan
9.J.Jagannathan
10.J.Raguraman
11.J.Senthilkumar
12.J.Yuvaraj				..Plaintiffs/Respondents/
					  Appellants.

Vs.

1.R.P.S.Bhuvanalingam
2.Selvam
3.S.Rajendran				..Defendants 2-4/Appellants/
						  Respondents 1 to 3
4.Sivagangai Devasthanam,
  rep. by its Manager,
  Sivagangai.				..1st defendant/13th Respnt.
 						  4th respondent.

PRAYER

This Second Appeal has been filed underSection 100of CPC, against the
judgment and decree dated 29.07.99 made in A.S.No.208/98 on the file of the
Addl.District Judge-cum-Chief Judicial Magistrate, Sivagangai, reversing the
Judgment and decree dated 30.06.1998 made in O.S.No.31/97 on the file of Sub
Court, Sivagangai.

!For Appellants	 ...Mr.P.T.S.Narendravasan, Advocate
^For Respondents ...Mr.P.Subramaniam, Advocate
(For R1 to R3)
For Respondents  ...Mr.P.Gopalan, Advocate
(For R4)

:JUDGMENTThis Second Appeal has been directed against the decree and judgment
in A.S.No.208 of 1998 on the file of the Court of Additional District Judge-cum-
Chief Judicial Magistrate, Sivagangai.  The plaintiff who had succeeded before
the trial Court but lost his case before the first appellate Court, is the
appellant herein.2.The brief facts in the plaint relevant for the purpose of deciding
this Second Appeal sans irrelevant particulars are as follows:-The plaint schedule property is situated at Thirubuvanam.  The suit
property was dedicated by the ancestor of the plaintiffs for the purpose of
performing the "Seventh Day Mandagapadi" for "Arulmigu Pushbavaneswarar Soundira
Nayaki Ammal Temple".  The plaintiffs and their ancestors were doing the said
dedication from time immemorial. The ancestor of D2 to D4 viz., Shanmugasundaram
Pillai, had filed a suit for permanent injunction arraying the plaintiffs'
ancestors Jeganatha Pillai, Murugaiya alias Subbia Pillai and the then
Hereditary trustee of Sivagangai Devasthanam as defendants before the District
Munsif, Manamadurai in O.S.158/1943.  The said suit was dismissed on 31.01.1946,
after full trail.  The plaintiffs' ancestors were in possession and enjoyment of
the plaint schedule property and out of the income derived from the plaint
schedule property, the said temple  the "Seventh Day Mandagapadi" was performed
and invitation was also printed for the performance of the  the "Seventh Day
Mandagapadi" in the said temple by the plaintiffs as well as by their ancestor.
The second defendant's father Shanmugasundaram Pillai had filed O.S.No.322/1980
before the District Munsif, Manamadurai, challenging the performance of  the
"Seventh Day Mandagapadi", arraying only the Sivagangai Devasthanam as
defendant.  Since the Devasthanam has not defended the case properly, the
judgment and decree in O.S.No.322/1980 was decreed against the interest of
Sivagangai Devasthanam.  Latter, the Sivagangai Devastanam preferred an appeal
in A.S.No.36/1982 against the decree and judgment in O.S.No.322/1980 before the
Sub-Court, Sivagangai.  During the pendency of the said appeal, the father of
the plaintiffs 8 to 12 viz., Jeyabalan filed I.A.No.80 of 1983 and as per the
order passed in I.A.No.80/1983, Jeyabalan got himself impleaded in
A.S.No.36/1982. In the said appeal, the first appellate Court had set aside the
decree and judgment passed in O.S.No.322/1980 and remanded the matter to the
trial Court, on 23.03.1983.  The defendants 2 to 4, who are the plaintiffs in
O.S.No.322/1980 allowed the suit to be dismissed for default on 16.10.1984 for
non-prosecution.  Hence, the defendants claim is hit by the principles of
estoppel by conduct underSection 115of the Indian Evidence Act, and also hit
by the principles of resjudicata underSection 11of Code of Civil Procedure.
While so, the second defendant had preferred an application before the Manager
of the Devastanam, to permit them to conduct the "Seventh Day Mandagapadi" for
the said temple.  Without giving any notice to the plaintiffs, the Manager of
the Devastanam had allowed the petition filed by the second defendant.  If there
is any dispute between the Trustee and the Devastanam or against a private
person and Devastanam, underSection 63of the Tamil Nadu Hindu Religious &
Charitable Endowments Act, (herein after referred to as the "H.R & CE Act") only
the Deputy Commissioner of HR&CE is competent to resolve those disputes.  The
order passed in favour of the second defendant by the Manager of the Devastanam
is not sustainable.  The hereditary trustee of the Sivagangai Devastanam viz.,
Rani Rajalakshmi Raguraman alone is competent person to pass any administrative
order in respect of the dispute that arose between the Devastanam and  private
parties. The first defendant, on the basis of the order passed by the Manager of
the Devastanam dated 04.03.1997, through the second defendant had got the
impugned order from the Manger of the Devastanam, permitting the second
defendant to conduct the "Seventh Day Mandagapadi" in the said temple from the
Manger of the Devastanam.  It is not known under what provision of law the first
defendant had permitted the second defendant to conduct  the "Seventh Day
Mandagapadi" for Fasali 1406 in the said temple.  There is no scheme decree for
the conduct of the Sivagangai Devastanam.  So, the plaintiff has filed the suit
for declaration that the order passed by the first defendant in Na.Ka.No.D.2
797/96 dated 20.03.1997 is null and void and also for consequential injunction
restraining the first and second defendants and their men from interfering in
any manner with the conduct of  the "Seventh Day Mandagapadi" by the plaintiffs
in the said temple.3.The first defendant has filed his counter contending that the
allegation that the plaintiffs, and before them their ancestors performed
"Seventh Day Mandagapadi" for the suit temple from time immemorial is denied as
false.  The right to conduct the "Seventh Day Mandagapadi" was assigned in
favour of the first defendant by the Devastanam is not hit by the principle of
resjudicata as contended by the plaintiffs in the plaint. The Manager of the
Sivagangai Devastanam is competent to pass an order permitting the first
defendant to perform  the "Seventh Day Mandagapadi" for the suit temple.  The
plaintiffs have no right to comment upon the order passed by the Manager of the
Sivagangai Devastanam in favour of the first defendant. The first defendant has
permitted the second defendant to conduct "Seventh Day Mandagapadi" in the suit
temple for Fasali 1406 in accordance with law.  The plaintiffs have no cause of
action to file the suit.  The suit is barred under the Provision of H.R.&C.E.,
Act. The Civil Court has no jurisdiction to try the suit. Hence, the suit is
liable to be dismissed.4.The Second defendant in his written statement would contend that
the Genealogy produced by the plaintiffs is no way connected with the suit
property.  In O.S.No.322/1980 on the file of Court of District Munsif,
Manamadurai, the second defendant herein and his brothers were plaintiffs and
the first defendant herein was the defendant.  So, the plaintiffs  cannot take
advantage of the decree and judgment passed in O.S.No.158/1943. Mere printing of
the names of the plaintiffs will not confer any right to conduct  the "Seventh
Day Mandagapadi" for the suit temple.  The decree passed in O.S.No.322/1980 was
set aside in an appeal and the suit was remanded to the trial court. But the
same was dismissed for non-prosecution.  Since the earlier suit was not decided
on merit, the plaintiffs cannot take shelter underSection 11of the Code of
Civil Procedure and to claim that the claim of the defendants are barred by
resjudicata.  The suit properties belonged to one Poovalingam Pillai, the
paternal  grand father of this defendant and he was regularly performing  the
"Seventh Day Mandagapadi" festival out of his own expenses.  He intended to
endow some of his properties to the Devasthanam for the continuous performance.
He endowed through  a registered trust settlement deed dated 21.03.1929.  The
ancestor of Poovalingam Pillai expired leaving behind his two sons samikkannu
and Shanmuga Sundaram. Samikkannu also died leaving his wife and daughter, who
are now no more.  Hence, Shanmugasundaram, succeeded the office of trusteeship
and continued the Trust.  But, subsequently he failed to perform  the "Seventh
Day Mandagapadi" for one or two years.  So, the Devasthanam leased out the Trust
properties to one Jagannatha Pillai, who is the ancestor of plaintiffs.  He was
the lessee alone and not the Trustee.  While Jagannatha Pillai was not the
trustee, his heirs cannot claim the trusteeship.  After realising the position
and intention of Trust, the Devasthanam has issued the order in favour of the
defendants and that cannot legally and morally challenged.  If the plaintiffs
are allowed to perform  the "Seventh Day Mandagapadi" from the income derived
from the Trust property, the very spirit and intention of ancestor Poovalingam
Pillai would be defeated.  The spirit of donor Poovalingampillai cannot be taken
away by the plaintiffs. There is no provision in the trust deed to delegate the
power of trustee and so this defendant alone is entitled to perform the duties
of trust and to carry on the "Seventh Day Mandagapadi" festival.  The other
legal heirs of Shanmugasundaram Pillai, Kannammal, Pappa are not impleaded as
parties.  So, the suit is bad for non-joinder of necessary parties. Hence, the
suit is liable to be dismissed. On the above pleadings, the learned trial Judge
had framed six issues for trial.5.The first plaintiff has examined himself as P.W.1 besides
examining one Poovalingam Pillai as P.W.2 and exhibited Exs.A1 to A4.  On the
side of the defendants D.W.1  to D.W.4 were examined and Exs.B1 to B6 were
marked.6.After meticulously going through the evidence both oral and
documentary, the learned trail Judge after holding that the civil Court has
jurisdiction to try the suit and is not barred by limitation has decreed the
suit, which necessitated the defendants to prefer A.S.No.208/1998 before the
Additional District Judge-cum- Chief Judicial Magistrate, Sivagangai.  The
learned first appellate Judge framed five points for determination and while
answering the first point as to whether the Civil Court has got jurisdiction to
try the suit holding that as perSection 63clause A to G of the HR&CE Act, the
Civil Court has no jurisdiction to try the suit, without answering the other
points viz., 2 to 5, has allowed the appeal, thereby setting aside the decree
and judgment of the learned trial Judge in O.S.No.31/97.  Aggrieved by the
finding of the learned first appellate Judge in A.S.No.208/1998, the plaintiffs
have filed this Second Appeal.7.The Substantial Questions of Law involved in the Second Appeal are
as follows:-"1.Whether the lower Appellate Court is correct in holding that the
suit is not maintainable since the Civil Court has no jurisdiction to entertain
the suit?2.Whether the Lower Appellate Court is correct in holding that the
4th respondent is competent in passing the impugned order dt.4.3.1999 in respect
of the rival claim made by the parties."8.Substantial Questions of Law Nos.1 & 2:-According to the plaintiffs, they are not in possession and
enjoyment of the properties.  They have got right in respect of the plaint
schedule property, which has been dedicated by their ancestor for performing
the "Seventh Day Mandagapadi" for the suit temple viz., "Arulmigu
Pushbavaneswarar Soundira Nayaki Ammal Koil" at Thirubuvanam. According to the
plaintiffs, they are performing the said Mandagappadi from time immemorial and
that the civil suit in O.S.No.322/1980 was filed by the father of the second
defendant, Shanmuga Sundaram Pillai, in connection with performance of  the
"Seventh Day Mandagapadi" in the suit temple arraying Sivagangai Devasthanam as
a party, which was decreed in favour of the plaintiffs therein.  Against the
said judgment and decree, the Devasthanam preferred A.S.No.36/1982.  While the
said appeal was pending, the father of D3 to D12 viz., Jegannatha Pillai got
himself impleaded in the appeal by filing I.A.No.80/1983 and the said appeal was
allowed and the decree and judgment in O.S.No.322/1980 was set aside and the
matter was remanded to the trial Court and since D2 to D4 herein, who are the
plaintiffs in O.S.No.322/1980 failed to prosecute the suit after remand, the
said suit was dismissed on 16.10.1994.  The judgment in O.S.No.322/1980 was
filed before the trial court as Ex.A.31 and the order passed in I.A.No.80/1993
in A.s.NO.36/1982 of Sivagangai Sub court was filed before the trial Court as
Ex.A.30. The grievance of the plaintiffs is that the defendants suppressing the
fact that he filed a suit in O.S.No.322/1980 in respect of the same relief for
conducting  the "Seventh Day Mandagapadi" for the suit temple, approached the
Manger of Sivagangai Devasthanam and got an order in their favour without giving
notice to the present plaintiffs, which necessitated the plaintiffs to get the
redressal through a civil Court. Even though the trial Court has after an
elaborate discussion has come to a conclusion that the suit filed by the
plaintiffs is maintainable and the civil Court has got jurisdiction to try the
suit.  In an appeal, the learned first appellate Judge on the ground that as perSection 63of the HR & CE Act, the order of the Manger of the Sivagangai
Devasthanam cannot be challenged before the Civil Court but is liable to be
challenged before the Deputy Commissioner of HR & CE, had allowed the appeal,
thereby setting aside the judgment and decree of the learned trial judge in
O.S.No.31 of 1997 without adverting to the other points viz., Point Nos.2 to 5,
in the first appeal.Section 63of the Hindu Religious & Charitable Endowments
Act, runs as follows:-"63. Joint Commissioner or Deputy Commissioner to decide certain
disputes and matters.-Subject to the rights of suit or appeal hereinafter provided, [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 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."In the suit, the plaintiffs challenged the order passed by the Manager of the
Sivagangai Devasthanam dated 04.03.1987, which is exhibited as Ex.A33, before
the trial Court.  The challenge of an order of the Manager of the Devasthanam is
not covered under any of the clauses toSection 63of the HR & CE Act. The
learned first appellate Judge in his judgment has not pointed out under which
clause toSection 63of the HR & CE Act, the civil Court is barred to try the
lis which arises out of an order passed by the Manager of Devasthanam.  The
learned counsel appearing for the respondents also fairly concedes that the suit
is not hit under any of the clauses toSection 63of the HR & CE Act. This Court
cannot also go into the question whether the judgment of the first appellate
Court finding is sustainable or not? because, the learned first appellate Judge
has not taken up the other points viz., Point Nos.2 to 5 raised by him in the
first appeal, on the ground that (on the basis of finding for point No.1) the
suit is not maintainable.  There are catena of decisions of this Court as well
as by the Apex Court that on the question of maintainability alone the suit
cannot be thrown out without giving a finding in respect of the other issues
involved in the lis. Under such circumstances, I am of the view that this is a
fit case for remand to the first appellate Court to consider the other points
also and to decide the appeal afresh.  It is made clear that the suit is
maintainable and not hit under any of the clauses toSection 63of the HR & CE
Act. Substantial Questions of Law Nos.1&2 are answered accordingly.9. In fine, the appeal is allowed and the judgment  and decree of
the learned first appellate Judge in A.S.No.208/1998 on the file of Court of
Additional District Judge-cum-Chief Judicial Magistrate, Sivagangai, is set
aside and the matter is remanded to the first appellate Court for deciding the
point Nos.2 to 5 also.  As far as the point No.1 is concerned, the suit is
maintainable, since it is not hit under any of the clauses underSection 63of
the HR & CE Act. The learned Subordinate Judge/first Appellate Judge is directed
to dispose of the appeal within a period of two months from the date of receipt
of a copy of this Judgment.  No costs. Consequently, connected miscellaneous
petition is closed.Mpk

To,1.  The Addl.District Judge-cum-Chief
    Judicial Magistrate,
    Sivagangai.2.  The Subordinate Judge,
    Sivagangai.