COMMISSIONER Vs. J. JAKKAIAH MUTHUVELU

JUDGEMENT

(1.) The appellants, who are the defendants in O.S. No. 273 of 1991, filed this Appeal Suit, as against the Judgment and Decree passed in the above said suit on 25.10.1995, by the Subordinate Judge at Periyakulam. For the sake of convenience, the parties arrayed in the original suit before the trial Court are referred in this appeal.

(2.) The respondent/plaintiff filed the statutory suit under Section 70(1) of Tamil Nadu HR & CE Act, 1959 seeking relief i.e., to set aside the order of the first defendant passed in R.P. No. 20 of 1990 dated 16.08.1991, by holding that the third defendant is entitled to get possession of three idols, namely, Sri Valli, Deivanai, Subramaniar from the plaintiff under Section 101 of the Act and for costs.

(3.) Briefly the case of the plaintiff, is that the plaintiff is the hereditary trustee of Sri. Surilivelappar @ Subramaniaswamy Temple situated at Cumbum. The temple having possession of three metallic idols of Sri. Subramaniaswamy, Valli, Deivanai among other idols and properties. They are found entered in the Register of Properties approved by the Assistant Commissioner, H.R. & C.E. (Administration) Department, Madurai in Memorandum No. 7944/49-1, dated 31.10.1949. The third defendant claiming to be the fit person, appointed as such by the Assistant Commissioner, H.R. & C.E. (Administration) Department, Madurai in respect of Sri Suruli Vellappar Temple, Surulimalai, took out an application in terms of Section 101 of the Tamil Nadu H.R. & C.E. Act 1959, in M.P. No. 4 of 1987 on the file of the Deputy Commissioner, H.R & C.E. (Administration) Department, Madurai i.e., 2nd defendant for the issue of a certificate in respect of the metallic idols of Sri. Subramaniaswamy, Valli, Deivanai, which are admittedly in possession of the plaintiff in his capacity as the hereditary trustee of Sri Surulivelappar @ Subramania Swamy Temple, Cumbum. The plaintiff denied the above said claim before the second defendant i.e., the Deputy Commissioner, as the third defendant is not a legal entity so as to institute any proceeding in his official capacity and he is not a juristic person and hence not entitled to be in possession, within the meaning of Section 101 of the Act and the above said petition in M.P. No. 4 of 1987 is not maintainable. However, the second defendant in the above said suit, allowed M.P. No. 4 of 1987 on 30.09.1989 and directed to issue certificate in respect of above three idols as prayed for. Aggrieved by the said order, the plaintiff filed a revision before the first defendant i.e., the Commissioner. But the Commissioner dismissed R.P. No. 20 of 1990 on 16.08.1991. According to the plaintiff, the first defendant has not properly considered the scope of Section 101 of the Act and the first defendant failed to consider the fact that as per Ex. B4, the Register of properties, the three idols are all along in the possession of the plaintiff and his predecessors. But the first defendant has wrongly held that the plaintiff has not obtained any order under Section 63(b) of the Act. The plaintiff is the hereditary trustee of main temple at Cumbam and he deemed to be the hereditary trustee of the Subramaniar Temple and therefore, the possession of three idols with the plaintiff is quite legal and the third defendant cannot claim for possession over the three idols. It is also averred in the plaint that on the first of Chitrai every year the celebration is conducted at main temple at Cumbum as the three idols are taken to the sub-temple at Surulimalai and after worship there, they are brought back to the main temple for the safe custody and used the three idols during festival in the main temple. This has been the practice from generation to generation. Therefore, the order of first defendant cannot be sustained in law and hence the Suit.