SRI KALUBACHALAMURTHISWAMI KALUGUMALAI Vs. PANCHAYAT BOARD KALUGUMALAI

JUDGEMENT

(1.) THIS second appeal arises out of the dispute between Sri Kalugachalamurthi devastanam, represented by its hereditary trustee, the ex-Zamindar of ettayapuram on the one hand and the Panchayat Board of Kalugumalai and the state of Madras on the other in respect of patches of lands surrounding the shrine of Sri Kalugachalamurthi at Kalugumalai village. The devastanam filed the suit O. S. No. 21 of 1952 on the file of the Subordinate Judge's court, Tuticorin, against the Panchayat Board Kalugumalai seeking relief for a declaration that the streets and open spaces in the village of Kalugumalai were the absolute private property of Sri Kalugachalamurthi temple and for a permanent injunction restraining the panchayat Board from interfering in any manner with the said street and open spaces and for other reliefs. On objection being raised by the Panchayat Board that the State of Madras was a necessary party, and that the suit was bad for nonjoinder the State came to be impleaded by the plaintiff Devastanam as the second defendant in the suit. The plaint was amended and the relief. were sought against both the defendants. The Devastanam claimed to be the absolute owner with full proprietary rights in all the streets, roads and open spaces in the village of Kalugumalai lying in the vicinity of the temple, and that the defendants had no manner of right to interfere with those streets and open spaces affecting the enjoyment and user of the devastanam. The defendants denied that the devastanam had any proprietary right in the streets and open spaces and contended that they were public streets which vested in the Panchayat Board of Kalugumalai under the Panchayat Act. The defendants further pleaded that after the abolition and taking over of the zamin of ettayapuram, of which the village of Kalugumalai formed part under Madras Act 26 of 1948 all the streets, roads and open spaces ill respect of which the Devastanam claimed rights vested in the State Government and that therefore the devastanam had no right to sue.

(2.) THE schedule attached to the plaint in O. S. No. 21 of 1952 described the suit property as being an area of an extent of 125 acres in S. No. 201/a and S. No. 203 in Kalugumalai village. In I. A. No. 130 of 1955 on the file of the Sub Court, tuticorin, the devastanam sought permission to withdraw the suit in respect of portions of the plaint mentioned property except the streets, the west car street, the south car street, the east car street, the giri prakaram road and the nadu street. The trial court granted this permission by its order in the interlocutory application dated 29-3-1955. By another order of the trial court in the application i. A. No. 130 of 1955, S. No. 203 also became excluded from the compass of the suit. All the streets above mentioned lie within S No. 201/a.

(3.) THE material issues framed at the trial of the suit are as follows: issue 2 Whether the suit is bad in view of the provisions of the Zamin abolition Act and. Temple Entry Act? issue 19: Whether the suit properties vest in the 2nd defendant under S. 3 of the Madras Act 26 of 1948? issue 4: Whether the suit is barred by the provisions of the Madras village, Panchayats Act of 1950 and the provisions of the Local Boards act. It is unnecessary to refer to the other issues as they are not relevant for the disposal of this second appeal.