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Judgment
Viswanatha Sastri, J.—This is an appeal from the decree of the Court of the Subordinate Judge of Guntur in O. S. No. 148 of 1950 decreeing to the plaintiffs possession of lands of the extent of ten acres described in schedules ''B'' and ''C of the plaint.
The plaintiffs are the archakas of the temple of Sri Venugopalaswami of Sekur in the Guntur District. The 1st defendant is the hereditary trustee of the said temple. Defendants 2 to 9 are alleged to be lessees of the lands in suit. Defendants 3,'' 7 and 8 disclaimed all interest in the properties while defendants 4 to 6 and 9 claimed to be bona fide lessees of the lands from the 1st defendant.
In this judgment we shall refer the plaintiffs and their predecessors-in-office as the archakas'' and to temple of Sri Venugopalaswami Varu as ''the temple'' and to the trustee of the temple and his predecessors-in-office as ''the trustee.''
The trustee has preferred this appeal against the decree of ejectment passed by the Subordinate Judge in favour of the archakas in respect of 10 acres of land specified in schedules ''B'' and ''C of the plaint. In order to understand the contentions of the parties, it is necessary to refer briefly to certain facts which are either admitted or established beyond doubt.
Ex. A-4 the extract from the Inam fair Register, shows that the lands in suit along with another extent of land were originally granted to the temple by one Raghupathi Rao. The grant is not forthcoming and the entries in the Inam Fair Register have to be accepted as authentic evidence of the nature, and the terms, of the grant. In Ex. A-4 the inam is described as religions endowment, the gudicut is stated to be Ac. 10-22 cents and the grantee is described as Sri Venugopalaswami.
Below the entry of the deity as the present owner, the name of the present worshipper is entered as Narayanam Seshayya. In Ex. B-39 the Survey and Settlement Register of 1873. the inam is stated to be of the extent of Ac. 14-65 cents, the pattadar being Sri Venugopalaswami and the trustee Vasireddi Chinna Venkayya. According to the Resurvey and Resettlement of 1906, the extent of the inam lands is Ac. 14-53 cents, out of which an extent of 10 acres is now in dispute.
By its Order Ex. B-9 dated 1-6-1933 the Madras Hindu Religious Endowments Board (hereinafter referred to as ''the Board'') acting under S. 84 of Madras Act 2 of 1927, declared that the temple was an excepted temple the trusteeship whereof was hereditary in the, family of Vasireddi Venkayya, the present trustee, and the appellant before us.
The archakas were then in possession of all the Inam lands and the trustee was directed by the Board to take steps on behalf of the temple for recovering possession of these lands from the archakas. The trustee was also informed that if he failed to take such steps, proceedings for framing a scheme would be started, the implication being that a person who would take immediate steps for recovering the properties would be appointed as a trustee along with the hereditary trustee. (See Ex. B-10 dated 27-9-1938).
In O. P. No. 123 of 1939 the trustee applied for delivery of possession of the inam lands under S. 78 of the Madras Act 2 of 1927, but as the archakas set up title in themselves adverse to the temple, the summary remedy sought by the trustee for recovery of possession of the inam lands could not be availed of by him.
O. S. No. 67 of 1943 on the file of the Court of the Subordinate Judge, Guntur, was filed by the trustee for recovery of possession of the inam lands from the archakas. The claim of the trustee for ejectment of the archakas was on the footing that the lands belonged to the temple having been granted to the deity; that the archakas were rendering ''Nityanyvedya Deeparadhana'' service in the temple and were in possession of the inam lands for and on behalf of the temple and that they later on wrongfully conceived the idea of asserting a title in themselves to the temple lands.
The archakas resisted the suit on various grounds, one of which was that the lands had been granted to the archakas burdened with a service and not to the temple. This defence of the archakas failed and on 8-2-1944 a decree for their ejectment was passed by the Subordinate -Judge. Possession of the lands decreed was delivered to the trustee of the temple through Court on 20-5-1944 in pursuance of the delivery warrant. Ex. B-15.
Subsequent to the decision in O. S. No. 67 of 1943, negotiations between the archakas. the Board, and the trustees, regarding the terms and the conditions of service of the archakas and the manner of remunerating them for their service and for the supply of the articles required for daily worship in the temple, were started.
The negotiations ranged over a period of about 15 months. The parties are at issue as to whether these negotiations resulted in a completed arrangement or a valid and enforceable contract.
In E. P. No. 81 of 1944 the trustee applied for execution of the decree in O. S. No. 67 of 1943 and took possession as already stated on 30-5-1944. Finding that the trustee had applied for delivery of possession of lands through Court in E. P. No. 81 of 1944, the archakas approached the Board and sought its interference with a view to obtain an allotment of a portion of the lands.
The petition filed by the archakas before the Board is not in evidence. Ex. A-11 dated 6-5-1944 is a memorandum issued by the Board to the trustee directing him not to take out execution of the decree in O. S. No. 67 of 1943. The considerations that led the Board to give these directions do not appear on the record. In view of the criticism of the trustee''s conduct in the judgment of the Court below, we observe that the Board itself had given a peremptory direction to the trustee in Ex. B-10 dated 27-9-1938 to take immediate steps for recovery of possession of the inam lands from the archakas.
The trustee obeyed the order of the Board, filed a suit in ''forma pauperis'' for recovery of the lands from the archakas and in spite of the contest of the archakas who set up an adverse title in themselves, succeeded in obtaining a decree in favour of the temple. The decree had been put in execution and a warrant for delivery of possession had been issued on 4-5-1944. It was thereafter that the Board passed the order, Ex. A-11, dated 6-5-1944 that the trustee should not take out execution of the decree.
But no reasons for the direction were vouchsafed in the order. In pursuance of the warrant that had already issued from the Court, the trustee took possession of the lands on 20-5-1944 instead of dropping the proceedings and starting fresh execution proceedings later on. There is nothing objectionable in the procedure adopted by the trustee. No appeal was filed against the decree in O. S. No. 67 of 1943 which therefore became final.
The Court below referred to the fact that no appeal was filed by the archakas from decree in O. S. No. 67 of 1943 as a significant circumstance indicating that a settlement should have been arrived at between them and the trustee. We shall refer to this aspect of the case later in this judgment.
The question is whether there was a concluded compromise or arrangement between the trustee and the archakas and the settlement or compromise, if found as a fact, is enforceable in this suit. Issue (4) which related to this topic was not happily worded and ran as follows :
Whether the plaintiff cannot sue for possession without obtaining a sale deed as per the compromise?
The Court below decided this issue in these terms :
On issue 4, I find that the compromise alleged by the archakas is true and that even though there is no registered document, the archakas are on general principles entitled to be in possession of the B and C schedule properties so long as they faithfully and properly perform the services and conduct the daily worship in the temple.
Relying on two decisions of the Madras High Court in A. S. No. 285 of 1945 (Mad) (At and A. S. No. 218 of 1946 (Mad) (B), the Court below held that it was
equitable and proper to direct the trustee to put the archakas in possession of the B and C schedule properties without rights of alienation subject to the condition that they should properly and faithfully render the services and carry on the daily worship to defray the expenses whereof they have to utilise the income of the B schedule properties.
It was in the exercise of a general equitable jurisdiction assumed to have been vested in the Court that a decree for possession of the B and C schedule lands was passed in favour of the archakas. In view of the recent decision of the Supreme Court in Buddu Satyanarayana and Others Vs. Konduru Venkatapayya and Others, the lower Court''s view cannot be sustained.
The observations of the learned Judges in the two unreported decisions relied upon by the lower Court do support the view that in a contest between the trustees of a temple and the archakas as regards the right to possession of inam lands granted to the deity, it is open to the Court to allot a portion of the inam lands to the archakas & allow them to remain in possession of the same subject to the condition that they properly perform the daily worship and defray the expenses thereof and also subject to a condition restraining alienation of the lands so allotted to the archakas.
In an earlier decision, of the Madras High Court in Angadi Masumayya Vs. The Official Receiver, a Division Bench of that Court had held that archakas could not claim to remain in possession of inam lands granted to the temple as against the trustee of the temple and without his consent and that- the question whether they should in fact be left in possession of the lands as remuneration for their service or in consideration of their supplying the materials required for the conduct of the daily worship, was an administrative matter dependent no doubt, on the extent of the income derived from the lands but was not a matter for judicial decision in a suit by the trustees for recovery of possession of the inam lands of the temple from the archakas.
This decision was follower, by another Bench in - Buddu Satyanarayana and Others Vs. Konduru Venkatappaiah and Others, , the Court observing that the possession by hereditary archakas of inam lands granted to the temple would reasonably be attributed to a temporary arrangement between the archakas and the trustee, subject to periodical adjustment, a permanent alienation of the temple lands by the trustee being beyond his powers except in the case of dire necessity of the temple.
It is this last decision that went up in appeal to the Supreme Court in Buddu Satyanarayana and Others Vs. Konduru Venkatapayya and Others, Referring to the unreported decisions relied upon by the learned Judge in the Court below, the Supreme Court observed:
In a proceeding for the framing of a scheme relating to a temple it may be permissible to take into account the claims, moral if not legal, of the archakas and to make some provision for protecting their rights, but those considerations appear to us to be entirely out of place in a suit for ejectment on proof of title.
If the two decisions (the two unreported decisions referred to above) lay down, as it is contended they do, that the principles which may have a bearing on a proceeding for framing of a scheme for enforcing the scheme that is framed, may be applied to a case of the kind we have now before us, it will be difficult for us to uphold them either on authority or on principle.
The suit which went up to the Supreme Court was instituted on behalf of a temple by its executive office:- against the archakas of the temple. Following the decision of the Supreme Court, we hold that the view taken by the Court below that on "general principles" the Court can. in a suit for ejectment by the trustee and in spite of his opposition, decree possession of a portion of the temple lands to the archakas as remuneration for their service and in consideration of their supplying the materials required for the daily worship, must be held to be erroneous.
It is next contended on behalf of the archakas that subsequent to the decision in O. S. No. 67 of 1943 holding that the archakas had no title to the inam lands, there was a compromise or a binding arrangement under which they were allotted a portion of the temple lands, that is to say. the lands described in schedules ''E'' and ''C of the plaint, of which they now seek possession. It would be convenient to examine the relevant documentary evidence on this point in chronological order. The case for ''he archakas is that after the decision in O. S. No. 67 of 1943 they approached the Board and desired a settlement of the disputes between them and trustee and that in the exercise of its powers the Board passed an order dated 5-6-1944 under S. 18 of Madras Act 2 of 1927.
This order was not filed in the Court below though frequently referred to in its judgment. The existence of such an order is admitted in para 3 of the written statement of the trustee. As the learned Advocate for the appellants disputed the existence and terms of the order, we asked the advocate for the Board to produce the order and we found from the order produced by the Advocate for the Board that its terms were correctly set out in para 9 of the plaint.
It is an administrative order passed by the Board under S. 18 of Madras Act 2 of 1927. A permanent alienation of the temple lands in favour of the archakas was not within the powers of the trustee nor was it contemplated by the order of the Board. Such an alienation could not have been made except in conformity with the other provisions of the Act and subject to the control of the Court under the Act as it then stood.
The arrangement contemplated by the Board in its order dated 5-6-1944 was a temporary arrangement between the trustee and the archakas subject to periodical adjustment from time to time. Such an arrangement might be within the administrative powers of the trustee or the Board. The Board required the trustee to enter into an arrangement with the archakas and allot lands of the extent of 10 acres to them for remuneration for their services in the temple and for ''paditharam'', that is to say, for the expenses of the daily worship.
As the archakas were subject to the control of the trustee and could be removed for neglect or failure to perform their duties, it was not and could not have been the intention of the Board that the archakas should have a permanent interest or title to the lands. The order of the Board dated 5-6-1944 contemplates that the trustee should divide the lands, reserve an extent of Ac. 4-53 cents of the best lands for the temple and allot the remainder to the archakas for their remuneration and for ''Paditharam''.
The trustee was also required to prepare a ''Dittam'' for the ''Paditharam'' and to prescribe the services to be rendered by the archakas. There was also a direction about the mesne profits and costs payable by the archakas under the decree in O S. No. 67 of 1943. It is only if the trustee divided the lands and allotted specific 10 acres to the archakas as directed by the Board and also fixed the terms of the arrangement by preparing a ''DITTAM'' and a schedule of the services to be rendered by the archakas, that the arrangement could be completed.
The trustee was apparently dissatisfied with the directions of the Board and did not carry out the terms of the order. By a subsequent order Ex. A-6 dated 13-7-1944 the Board requested the trustee to carry out the directions contained in order dated 5-6-1944 and to get a document registered. The trustee was also admonished that "he should not question the said order of the Board", that is to say, the order dated 5-6-1944.
The trustee did not carry out the directions for more than a year. There was a reminder from the Board. Ex. A-8 dated 9-6-1945. By its order Ex. A-7 dated 14-9-1945 the Board asked the trustee to carry out the previous order on pain of proceedings for settlement of a scheme being taken by the Board. The trustee had his objections to the arrangement indicated by the Board and submitted his views to the Board.
The archakas complained to the Board about the refusal of the trustee to carry out its directions. Both these representations were considered by the Board which passed a final order Ex B-21 dated 4-10-1945 in these terms :
Memorandum of No. 66768 of 1944-6, Adm., dated 4-10-1945.
Sub: Appointment of temple lands - Approved by the Board - not given effect to by the trustee - Sri Venugopalaswami temple, Sekur village, Guntur taluk and district - Final orders intimated.
The petitioners (archakas) are informed that the trustee of the above temple has been advised not to enter into compromise in view of the representations made by the trustee in his letter, dated 24th September 1945.
(Signed) L. Loganathan, For Secretary.
One would have thought that the controversy now ended and the trustee''s point of view had prevailed. Within three weeks of Ex. B-21 the Board passed an order Ex. A-10 dated 23-10-1945 to the effect that its previous order dated 5-6-1944 followed by Ex. A-10 would stand. The trustee stuck to his guns and nothing further was done pursuant to Ex. A-10.
Two years later, one of the archakas woke up and approached the Board which passed an order Ex. A-14 dated 27-10-1947 to the effect that the archaka should get an agreement registered and file the same before the Board if he wanted apportionment to be given effect to. The trustee was willing to employ the archakas on reasonable remuneration but was against allotment of lands to them as remuneration for their services and for ''PADITHARAM''.
The archakas again approached the Board and the trustee maintained his stand. After considering the representations of both the parties, the Board passed an order, Ex. B-8, dated 26-10-1948. in these terms:
The archakas of the temple are advised to approach the trustee and the Assistant Commissioner, Hindu Religious Endowments Board Guntur, for fixing reasonable amounts for ''ARCHAKATWAM'' and ''PADITHARAM''.
In this order the Board accepted the trustee''s views that the archakas should receive remuneration in cash for '' ARCHAKATWAM'' and ''PADITHARAM'' and that the remuneration should be fixed by the trustee and the Assistant Commissioner. We might mention that there was an order of the Board dated 20-5-1947 which is referred to in a receipt Ex. A-2 dated 5-7-1947 given by the trustee to the archakas for a sum of Rs. 550/- paid by the latter to the former in respect of mesne profits decreed in O.S. No. 67 of 1943.
The order itself was not filed in Court. In para 3 of the written statement it was alleged that fresh draft proposals were suggested by the Board in its order dated 20-5-1947, but in the absence of the order itself, it is difficult to say whether this was the case.
The learned advocate for the archakas stated that Ex. A-2 showed that the trustee had accepted all the terms of the Board''s order dated 5-6-1944. This, however, does not follow. Ex. A-2 purports to be a receipt for Rs. 550/- for mesne profits. Ex. A-2 refers to the Board''s order dated 20-5-1947 under which Rs. 550/- was settled as due and payable to the trustee by the archakas.
Ex. B-8 dated 26-10-1948 which is, as stated above, the list of the orders passed by the Board regarding the archakas'' claim for allotment of the lands, directs that the archakas should receive the remuneration fixed by the trustee and the Commissioner.
The learned advocate for the archakas argues that it was because the Board passed the order dated 5-6-1944 the archakas did not file an appeal to the High Court against the decree in O.S. No. 67 of 1943. The trustee in the written statement and evidence denied that the archakas agreed to abandon the idea of appealing against the decree by reason of the order of the Board dated 5-6-1944.
It may well be that the archakas thought that having got the order of the Board dated 5-6-1944 they need not pursue the matter by an appeal to the High Court. A telegram Ex. A-5 dated 9-7-1944 purporting to have been sent by an advocate of Madras to the archakas was relied upon by them. This telegram shows that the archakas had an idea of appealing in ''FORMA PAUPERIS TO THE HIGH COURT'' but it was too late to do so and that the last day for filing the appeal with the Court-fee payable was 10-7-1944.
If the archakas had given up the idea of appealing because they considered that the order of the Board dated 5-6-1944 secured to them all that they wanted, there was no need for consulting the advocate on 9-7-1944 or for asking him to file an appeal in ''FORMA PAUPERIS''.
It is also possible that the archakas felt or were advised that they had not much chance of success on appeal and they, therefore, wanted to save expense and prefer an appeal in ''FORMA PAUPERIS'' just on the day prior to the last day for filing the appeal with court-fee, when they were told that the time for appealing in ''FORMA PAUPERIS'' had expired long ago.
They did not choose to file an appeal with court-fee. Whatever might be the reason for the archakas not filing an appeal against the decree in O.S. No. 67 of 1943, there is nothing to show that in consideration of their "being allotted 10 acres of land the archakas abandoned or gave up their right to appeal and that the litigation between the archakas and the trustee was compromised on these terms.
It is significant that the order of the Board dated 5-6-1944 does not provide that the archakas should not prefer an appeal from the decree in O.S. No, 67 of 1943 and that the decree should be accepted as final. In any case it was the trustee that was entitled to represent the temple and he is not shown to have been a party to a compromise the consideration for which was the abandonment by the archakas of their right to appeal against the decree in O.S. No. 67 of 1943.
We are, therefore, of the opinion that there are no adequate grounds for holding that the trustee is estopped by his conduct from pleading that the archakas have no title to the lands now sought to be recovered by them.
The arrangement contemplated by the Board in its order dated 5-6-1944 was only a tentative arrangement for remuneration of the archakas and for PADITHARAM''. It did not vest the title to the inam lands in the archakas and the lands continued to be the property of the temple. The proposal was to allow the archakas to enjoy the usufruct on about 10 acres of the temple lands as remuneration for their service and ''PADITHARAM''.
It was only after division of the lands was effected by the trustee and an extent of Ac. 4-53 cents of lands of the best quality was reserved for the general upkeep of the temple, that an allotment of the remaining 10 acres could be made for the archakas. The order dated 5-6-1944 did not vest any title to the properties now sued for in the archakas having regard to the events that happened and to the refusal or omission of the trustees to abide by the directions contained in the Board''s order.
In Ex. B-21 dated 4-10-1945 the Board dropped the arrangement proposed under the order dated 5-6-1944 and advised the trustee not to enter into it. Later, on, it revived the arrangement proposed by the order dated 5-6-1944 in Ex. A-10 dated 23-10-1945. Again by Ex. B-8 dated 26-10-1948 the Board went back and directed that the amount of remuneration payable to the archakas should be decided by the trustee and the Commissioner.
In any case it was for the trustee to give effect to the order of the Board by dividing the lands and reserving the lands of good quality for the temple and allotting the remaining 10 acres to the archakas. The trustee did not implement the Board''s proposals or directions.
The Board itself gave conflicting directions ending with Ex. B-3 dated 26-10-1948 dropping the idea of an allotment of lands and suggesting the payment of cash remuneration to the archakas. The trustee who alone represented the trust and who alone was competent to execute the necessary documents required to complete the arrangement did not carry out the directions of the Board.
In these circumstances however, disobedient the trustee might have been, the administrative order of the Board dated 5-6-1944 could not be regarded as having conferred on the archakas a title to the lands, in schedules ''B'' and ''C of the plaint so as to enable them to sue for ejectment of the trustee from those lands.
It was argued on behalf of the trustee that after 1915 the archakas were content to do service on the basis of a salary and a cash allowance for ''PADITHARAM''.. In Ex. B-20 dated 22-3-1945 it was stated that a monthly sum of Rs. 20/- for salary and Rs. 15/- for ''PADITHARAM'' for fasli 1351 and a monthly salary of Rs. 25/- for archaka service and allowance of Rs. 20/- per month for ''PADITHARAM'' for fasli 1354 would be paid and a budget making provision for disbursements on the above scale had been approved by the Board.
Exs. B-6(a) and B-7 are the sanctioned budgets for 1948-49. Ex. B-5 dated 16-7-1948 is an order of the Assistant Commissioner of the Board fixing the salary of the archakas'' at 40 bags of paddy and the ''PADITHARAM'' at 20 bags of paddy from 1-7-1947. Ex. B-1 dated 7-4-1948 is a receipt by the archakas for 30 bags of paddy received by them in advance for ''PADITHARAM''.
Ex. B-2 is a receipt dated 6-5-1948 for a sum of Rs. 1,376-14-0 paid by the trustee to the archakas for the balance due for service and ''Paditharam'' for fasli 1357 and the amount due for the service and ''Paditharam'' for fasli 1358. Ex. B-2, however, contains a reservation that it is executed without prejudice to the contentions of the archakas in O.S. No. 10 of 1949 instituted by them in ''Forma Pauperis'' for the same reliefs as are claimed in the present suit.
The plaint in O.S. No. 10 of 1949 was, however, rejected by reason of the omission of the archakas to pay court-fee within the time fixed. (See Ex. B-38). The archakas applied to the Board for enhancement of salary and the allowance for ''Paditharam'' on 14-6-1949. They got the reply Ex. B-32 dated 19-7-1949 that no enhancement of salary and ''Paditharam'' would be granted till the disposal of O.S. No. 10 of 1949 and that salary and ''Paditharam'' would be paid as fixed by the Assistant Commissioner in Ex. B-5.
It appears that the archakas were content to accept a salary and an allowance for ''Paditharam'' from the trustee for fasli 1354. If there had been a concluded contract or compromise or other arrangement on 5-6-1944 entitling the archakas to the lands in ''B'' and ''C schedules, they should have got the annual income of those properties and would not have been content with a monthly salary and an allowance for ''Paditharam''.
This conduct on the part of the archakas also indicates that there was no final or completed arrangement allotting to them 10 acres of land claimed in the plaint.
The learned advocate argued, and the lower Court has found, that the conduct of the trustee in systematically flouting the orders of the Board was reprehensible. This criticism was perhaps a little too harsh in view of the contradictory directions given by the Board itself on different occasions. The Board has, no doubt, administrative powers under S. 18 of Madras Act 2 of 1927 but it is the trustee that represents the temple and is responsible for its proper and orderly administration.
A hereditary trustee like the appellant was not a servant of the Board. He had a status of his own and had rights and duties in relation to the deity and the worshipping public. If he felt that the administrative orders passed by the Board were detrimental to the interests of the temple. he was entitled and bound to bring his views to the notice of the Board and to stand by them unless he was overruled by a lawful order binding upon him.
In any case, even if the trustee had willfully disobeyed the directions of the Board, he would have laid himself open to such disciplinary action as the Board was competent to take and unless the trustee transferred the lands to the archakas in the manner directed by the Board, the archakas could not get a valid title to the lands and there has been no such transfer in the present case.
The archakas were evidently alive to the need for a proper document to be executed and registered before they could assert a right to the lands. On 14-6-1947 stamp papers of the value of Rs. 37-0-0 were purchased on behalf of the archakas. An agreement purporting to have been executed jointly by the trustee and the archakas was engrossed on these stamp papers.
The draft recites that the lands described in schedules ''B'' and ''C'' corresponding to schedules ''B'' and ''C of the plaint, were allotted to the archakas and put in their possession for their remuneration and ''Paditharam'', that the archakas should not alienate the lands, that they should perform service in the temple regularly and properly defray the expenses of ''Paditharam'' and pay the proportionate part of contribution due to the Board.
This document, Ex. A-1 is not dated and is not signed by the trustee. It is incomplete and cannot confer a right to the lands in schedules ''B'' and ''C on the archakas. The Court below expressed its inability to give any reliefs to the archakas. on foot of Ex. A-l & concludes as follows:
As Ex. A-l is an unregistered document it cannot be relied upon by the archakas as creating in them an interest in the ''B'' and ''C schedule properties. See the decisions in Vedangi Veera Raghava Rao Vs. Vedangi Gopalarao, '' Nalam Ramayya and Others Vs. Nalam Achamma, and Muhammad Ghouse Sahib v. Jamila Bi''. AIR 1951 Mad 433 (F).
The archakas do not now sue for specific performance of the contract or the arrangement alleged to have been entered into on 5-6-1944. In para 13 of the plaint the cause of action for the suit is stated to have arisen in or about April 1944 when the compromise was entered into and on 5-6-1944 when the Board had approved the said compromise and subsequently on 31-12-1949 when the trustee violated the terms of the compromise approved by the Board.
If the suit had been framed as one for specific performance it would raise questions as to whether the contract was complete or incomplete, whether if complete it was specifically enforceable, the suit was in time. The archakas have, however, chosen to file a suit to eject the trustee from the lands which had been decreed in favour of the temple and in order to succeed in the suit, they must prove their title to the lands.
Neither the order of the Board dated 5-6-1944 nor Ex. A-2 confers a title to the lands on the archakas. It was realisation of this difficulty in the way of the archakas that made the Court below grant a decree to them on general principles. We have pointed out that the Court has no such power. The result is that the decree of the lower Court is set aside and the suit is dismissed.
In view of the fact that the trustee practised a strict economy of information both in his pleading and evidence, and did not admit many facts which were obviously within his knowledge, we think that there should be no order as to costs, either in this Court, or in the Court below.
Though we have decided this case against the archakas, it may be open to the trustee, the archakas and the Commissioner to come to a reasonable arrangement in the interests of the institution as regards the manner in which the archakas should be remunerated for their service and for ''Paditharam.
Nothing in this judgment need stand in the way of such an arrangement or in the way of an allotment of a suitable extent of land to the archakas as remuneration for their service and for ''Paditharam''. The arrangement would not be a permanent alienation of the temple lands in their favour but would only be a temporary one providing for their remuneration so long as they render proper service in the temple and also supply the articles necessary for doing the daily worship.
Sri E. Venkatesam appearing on behalf of the Government Pleader, claims that he should be awarded costs in this appeal. The costs are claimed on behalf of the Commissioner, Hindu Religious Endowments. He was not a party to the appeal nor was he impleaded a party at the instance of the appellant. It appears that when the appeal was taken up for hearing by a Bench of the Madras High Court, the advocate for the Commissioner was required to produce some document and a notice to that effect was also served upon him. Sri Venkatesam did appear before us and produce the document which was required to be produced by the Court on a former occasion. In so doing the Commissioner for Hindu Religious Endowments must be regarded as having acted ''ex debito justitiae''. In these circumstances we do not think it right to saddle the parties with the costs of the Commissioner for Religious Endowments.