Devarajan vs C. Selvaraju

B. Rajendran, J.—Second Appeal is filed by the unsuccessful Plaintiffs against the Judgment and Decree of the learned Subordinate Judge, Dharmapuri, in A.S. No. 35 of 2012, dated 24.3.2014, confirming the Judgment and Decree of the learned District Munsif, Palacode, in O.S. No.217 of 2010, dated 21.6.2012.

Originally, the Appellants here/Plaintiff have filed the Suit in O.S. No. 217 of 2010 before the learned District Munsif, Palacode, for the relief of declaration, to declare that the Plaintiffs are also the Joint Hereditary Trustees of the Suit Temple along with the Defendant and for Permanent Injunction to restrain the Defendant from in any manner interfering with the Plaintiffs'' peaceful possession and Management of the Suit Temple and its properties and doing Pooja in the Suit Temple. In the Plaint, the Plaintiffs have averred that originally, their ancestors were managing the affairs of the Suit Temple. Pursuant to which, now the Plaintiffs and the Defendant are the Joint Hereditary Trustees-cwm-Poojaries of the Suit Temple. The Plaintiffs came to know that the Defendant obtained an Order in O.A. No.1 of 2001, dated 1.2.2006, in the office of the Joint Commissioner, HR & CE. Salem, declaring the Defendant as the Hereditary Trustee of the Suit Temple and lienee, the Suit. The Defendant has filed a Written Statement, denying the allegations contained in the Plaint as false According to the Defendant, the Plaintiffs have never participated in the affairs of the Suit Temple and recognizing the work of the Defendant, he is declared as the Hereditary Trustee of the Suit Temple in O.A No.1 of 2001 and therefore, the Plaintiffs have no right over the Suit Temple and they are not entitled for any relief. The Lower Court on considering the oral and documentary evidence, has dismissed the Suit. Against winch the Plaintiffs have filed an Appeal in A.S. No.35 of 2012 before the learned Subordinate Judge, Dharmapuri The Lower Appellate Court dismissed the Appeal, thereby, confirming the Judgment and Decree of the Lower Court, by Judgment dated 24.3.2014. Aggrieved against the concurrent Judgments, the Plaintiffs have come forward with the Second Appeal.

Ms. G. Sumitra learned Counsel appearing for the Appellants/Plaintiffs would contend that they are not disputing insofar as to the Order passed by the Joint Commissioner. HR & CE, Salem, as to the Hereditary Trusteeship right, but, what is their grievance is that they have not been impleaded as parties in O.A. No.1 of 2001, they should have been impleaded as a party, because, they also belong to the same family and they are also having joint rights in the Management of the Temple, which has not been considered by the Joint Commissioner and as the Plaintiffs have not been impleaded as parties, they have filed the Suit She would further contend that since the Civil Court slates that it has no jurisdiction, they have no other-legal remedy excepting to file the Second Appeal to set at rest the wrong committed by the Joint Commissioner, HR & CE, Salem, by passing the Order in O.A. No.1 of 2001, dated 1.2.2006.

Heard the learned Counsel for the Appellants. The Second Appeal is not admitted By consent, the Second Appeal itself is taken up for final disposal at the time of admission itself.

The questions of law raised in the grounds of the Second Appeal are as follows:

(i) Whether the Courts below have failed to note that the Plaintiffs/Appellants are not denying the lights of the Defendant/Respondent and hence no Statutory Appeal need to file against the Order of Joint Commissioner, Salem, in O.A. No 1 of 2001.

(ii) Whether the Courts below tailed to note that the Appellants are not aggrieved over the Order of the Joint. Commissioner but on the other hand they are only aggrieved over the contact of the Respondent in suppressing about their existence and rights while getting the Order in O.A. No. 1 of 2001.

(iii) Whether the Courts below failed to note that, a Suit of this nature could be decided only by the Civil Court and not by the Statutory Authorities constituted under the Tamil Nadu Hindu Religious and Charitable Endowments Act 22 of 1959?

On a careful perusal of the Order passed by the Joint Commissioner, HR & CE, Salem, in O.A. No.1 of 2001, dated 1.2.2006, as well as the Judgments of both Courts below one thing is clear, viz., the Hereditary Trusteeship of the Suit Temple is accepted by the Plaintiffs, but, their grievance is that because the Plaintiffs have not been impleaded as parties their right was not at all decided by the Joint Commissioner and he has passed an Order in favour of the Defendant by taking into consideration his representation alone. The further grievance of the Plaintiffs is that the Lower Court erred in dismissing the Suit on the sole ground of maintainability and the same came to be wrongly confirmed by the Lower Appellate Court But, on a perusal of Judgments passed by both Courts below, it is seen that both Courts below have categorically pointed out that the prayer in the Suit is to declare the Plaintiffs also as the Joint Hereditary Trustees of the Suit Temple along with the Defendant, but, curiously an additional prayer of injunction was also sought for in the very same Plaint seeking to restrain the Defendant from in any manner interfering with the Plaintiffs'' peaceful possession and Management, of the Suit Temple and its properties and doing Pooja in the Suit Temple. Therefore, both Courts below have correctly and concurrently held that what really the Plaintiffs want, to achieve is to set aside the Order passed by the Joint Commissioner in O.A. No. 1 of 2001. In fact, if the Plaintiffs are really aggrieved in any manner by the said Order, they should have preferred an Appeal to the Commissioner within 60 days; that has not been clone, therefore, as rightly pointed out by the Lower Court, the Suit as such is not maintainable. The Lower Appellate Court also gone into the question of fact that the Plaintiffs have not preferred an Appeal and therefore, it has confirmed the Judgment and Decree passed by the Lower Court. Even from the pleadings as well as the argument of the learned Counsel appealing for the Appellants/Plaintiffs, it is crystal clear that they are not disputing the Hereditary Trusteeship of the Suit Temple, but, the Plaintiffs would only submit that they are also entitled to participate in the Management of the Suit Temple and its properties and to perform Pooja in the Suit Temple, in my considered opinion, nothing prevented them to move the Authority concerned and seek appropriate remedy, but, definitely, they cannot seek for setting aside the Order of the Joint Commissioner, unless, it is taken by way of Appeal The prayer in the Suit is nothing, but, to set aside the Order of the Joint Commissioner, dated 1.2.2006, which cannot be granted.

At this juncture, the learned Counsel appearing for the Appellants/Plaintiffs have relied on the decision of this Court reported in A. Krishnasami Raja v. Krishna Raja, 1968 (1) MLJ 119, to substantiate his contention that when there is a rival Claimant, the Deputy Commissioner is not competent to go into the question as to which of the competing Claimant is a Hereditary Trustee or whether both are joint Hereditary Trustees and that is matter not covered under Section 57 of the Madras Hindu Religious and Charitable Endowments Act (XIX of 1951) and it can be decided only by the Civil Court by a separate Suit. The said Judgment is not applicable to the facts and circumstances of the case on hand for the reason that the Appellants,/Plaintiffs do not dispute that the Defendant, who is the Petitioner in O.A No.1 of 2001, has no legal right to be the Hereditary Trustee and therefore, there cannot be a rival Claimant at all and the Plaintiffs are only co-Claimants and not rival Claimants.

After analysing all these things, both Courts below have rightly held that the Suit is not maintainable as there is a bar under Section 69 of the Hindu Religious and Charitable Endowments Act 22/1959. Therefore, this Court finds that even though many questions of law are raised in the grounds of the Second Appeal, they are only questions of fact and there is no question of law much less any Substantial Question of Law involved in the Second Appeal. Hence, I do not find any reason to interfere with the Judgment and Decree of the Lower Appellate Court, dated 24.3.2014. The Second Appeal is dismissed. It is made clear that the Appellants/Plaintiffs are always at liberty to move the Authority concerned and seek for the appropriate remedy, if really they have any right. No costs.