THONDIRAJ Vs. CHELLIAH THEVAR DECEASED

JUDGEMENT

(1.) BOTH appeals arise out of a single suit O.S.No.44 of 1982, on the file of the Sub Court, Ramanathapuram at Madurai.

(2.) IN A.S.No.824 of 1984, defendants 1 to 4 and 6 to 10 are the appellants. IN A.S.No.565 of 1985, defendants 7 to 9 are the appellants. The appeals are disposed of by the following common judgment: The suit was filed by the first respondent in both the appeals. He died pending the appeals and his Legal Representatives have been brought on record as respondents 6 to 12. The case was as follows: Arulmigu Thirubuvaneswarar Temple and Arulmigu Ayyanar Temple at Kumalendal Village, Thirvadanai Taluk, Ramanathapuram District, are ancient temples established for the villagers with the help of Rajas of Ramnad, and the ancestors of the plaintiff were the persons in management of the temples for over a century; the village mentioned was an inam village and a Mohammedan was the inamdar before the abolition of the inam rights; though the village was an inam by character, it was classified as a Dharmasanam with grant as to several service holders (Public and Religious) and to the suit temples also; an extent of 4 acres, 21 cents was the grant for the temples by the Rajas of Ramnad for maintenance of the deity and the grant was not affected by the inam nature of the Will in favour of the said Mohammedan; originally the inamdar of the Dharmasanam grant was one Iyengar and subsequently one Mohammedan purchased the shares in the inam grants from the said Iyengar; an inamdar of the dharmasanam, Iyengar was said to have had overall control of the said grants including the grant to the deity and consequently the person managing the temple had a duty to satisfy the inamdar in those days pertaining to maintenance of the temple; the plaintiff's grandfather one Periyar Thevar was managing the temples as a hereditary trustee; the inamdars never interfered in the management as they were satisfied that the temples were maintained properly; when Iyengar inamdar sold the property to one Mohammedan, there was some interference in the management of the temples; the matters were taken to the Rajas of Ramnad, who directed one Vellaichamy Kanakkupillai to assist the plaintiff's grandfather when troubles were given by the said Mohammedan; the Mohammedan INamdar was demanding rent from the temples now and then; there were 45 shares belonging to different persons; the inamdar claimed 14-4-6 share; he filed a suit O.S.No.58 of 1952 before the District Munsif, Ramanathapuram at Madurai, and the suit was decreed mentioning the rights of the respective parties, wherein it was stated that the properties mentioned in the plaint as items 7 to 10 and 16 and 17 belonged to the temples and the management thereof would be held by the plaintiff and another Chinniah Pillai alias Chinna Perumal Pillai, son of Vellaichamy Kanakkupillai already referred to, he was only a nominee of Samasthanam, the plaintiff was the person in actual management of the temple; the decree of the Court had also recognised the management of the temples by the plaintiff; before him, his father and before his father his grandfather were managing the temples; a document of lease of land belonging to Peyar Thevar in favour of one Rayar of the village described the said Peyar Thevar as the hereditary trustee of the suit temples and the document had been registered on 19.10.1905; the management had been continuously in the family of the plaintiff; in the suit in O.S.No.58 of 1952, the plaintiff was the fourth defendant along with his father Nagalinga Thevar, who was the second defendant; the judgment in O.S.No.58 of 1952 referred to one Chinniah Pillai alias Chinna Perumal Pillai, the first defendant in the said suit, to manage the temples along with the plaintiff, Chinniah Pillai alias China Perumal Pillai is the third defendant in the said suit; he had nothing to do with the actual management of the temples; he also did not have a hand in the management; Chinna Perumal himself had written to the departmental authorities reiterating the right of the plaintiff and that he was only assisting the plaintiff in the matter of management of the temples; hence, in those circumstances, the denial of such right of the plaintiff by H.R. and C.E. Department was not proper but illegal; the plaintiff had acquired a vested right of management of the temples both from the ancestors and from the decision of the Civil Court in O.S.No.58 of 1952 which was binding on all persons concerned; the plaintiff was also appointed by the Assistant Commissioner, H.R. and C.E., Ramanathapuram, taking into account he was managing the temple hereditarily; the department appointed the ninth defendant as trustee of the temple in the year 1975 for the first time; the plaintiff was asked to hand over the charge to the Village Munsif; the plaintiff was obliged to move the Deputy Commissioner to establish his right to manage the temple hereditarily; the petition was taken on file as O.A.No.101 of 1976; during the pendency of the said petition, defendants 1 to 6 got themselves impleaded as respondents 1 to 6 got themselves impleaded as respondents 1 to 6 in the said O.A. and opposed the petition; in the meantime, one Muthuramalingam, the member of the family of the plaintiff, was appointed as fit person by the 7th defendant, and the charge of the temples and its properties were handed over to Muthuramalingam; during the pendency of the said O.A., the Executive Officer of Nagara Sivan Temple, Devakottai, was appointed as fit person, but, he did not exercise his office, as such the properties of the temples continued to be in the hands of the plaintiff through the said Muthuramalingam; the petition was dismissed, after an elaborate trial; there was considerable delay in passing the order for over one year; he maneuvered to dismiss the petition on materials gathered by him behind the plaintiff's back; the plaintiff was not allowed to cross-examine the INspector, H.R. & C.E., who was shown as C.W.1 in the order; there was no notice of date of his examination and when the plaintiff's counsel expressed his unhappiness over the way in which the INspector was examined by the Deputy Commissioner, the Deputy Commissioner promised every now and then that the materials would not be sued against plaintiff without giving an opportunity to peruse the materials as well as to cross examine the INspector; the order of the Deputy Commissioner was ex facie bad; though in the last para of the order he stated that the plaintiff's family was found to have been associated with the temples for long meriting a representation in the Trust Board for management of the temple, the Deputy Commissioner had failed to understand the provisions of law regarding the hereditary right of the management as defined in the H.R. and C.E. Act (hereinafter referred to as the Act); the Deputy Commissioner had observed that the plaintiff's management for 10 years even during the life time of his father cut at the very concept of the hereditary trusteeship was fantastic and ridiculous against the position of law, as there was no bar for a son to manage a temple during the life time of his father due to his old age, etc.: against the order of the Deputy Commissioner, the plaintiff preferred an appeal before the Commissioner/ the eighth defendant in A.P.No.17 of 1981; by order dated 16.4.1982, the Commissioner dismissed the appeal by a non-speaking order; the legal concept of the hereditary trusteeship had been thrown in the air and the order had been passed by the Commissioner on being carried away by wrong notions as well as incorrect particulars; there was no discussion in the order regarding both, oral and documentary, evidence of parties; the suit had been filed to set aside the order of the Commissioner and consequently to declare that the plaintiff was holding the office of the trusteeship of the suit temples hereditarily; in the course of the trial, the plaintiff came to know that the tenth defendant had been appointed as the trustee of the suit temple; and, in order to get a binding adjudication against him he had been impleaded as a party in the suit.

(3.) THE learned Subordinate Judge, Ramanathapuram, framed the following issues: " (1) Whether the plaintiff is entitled to the relief prayed fore " (2) What the relief he is entitlede THE learned Subordinate Judge framed an additional issue on 10.8.198, namely- "Whether it is true that the plaintiff and his ancestors had managed the suit temples as hereditary trusteese"