PARAMASIVA MOOPAN Vs. ARUPPUKOTTAI CHOCKALINGAPURAM CHOKKANATHASWAMI THROUGH ITS EXECUTIVE OFFICER K. VAYANAKKAM

JUDGEMENT

(1.) DEFENDANTS 2 to 4 and the legal representatives of the first defendant, who succeeded in the trial Court, but failed in the lower appellate Court, are the appellants herein. The first respondent 1st plaintiff is the deity, Aruppukottai Chockalingapuram Chokkanathaswami, and respondents 2 to 4 herein (plaintiffs 3 to 5) are its trustees. The suit was for declaration of the first respondent's title to four items of lands and for possession. The case of the respondents was that all the four items of the suit lands were originally comprised in the Aruppukottai Zamin village. Items 2 and 3 were granted by the Zamindarini to the first respondent in 1803 -1804, while items 1 and 4 were granted to the first respondent by a Pathadappu Kararnama document Exhibit A -2, dated. 20th August, 1899 executed in favour of the Zamindar. The first respondent was in possession of all me four items by leasing them out. After the estate was abolished and taken over on 7th April, 1949 under Madras Act XXVI of 1948, one Somasundaram Pillai claimed patta for the first respondent on the ground that they were the first respondents private lands. His application for grant of patta was dismissed. The first defendant Adaikala Moopanar manoeuvred to obtain patta in his name, and in the appeal filed by the first respondent against the order directing the grant of patta to the first defendant, an order for remand was passed by the Director of Settlement and ultimately patta has been granted to the first respondent. The deceased first defendant filed O.S. No. 123 of 1958, on the file of the trial Court, for declaration of his title to the suit lands and for an injunction restraining the first respondent from interfering with his possession but failed in the trial Court, which dismissed the suit on 26th February, 1960. Exhibit A -59 is the certified copy of the judgment in that suit. On appeal, the suit was decreed in A.S. No. 39 of 1960 as seen from Exhibit A -60. Then, the first respondent filed, S.A. No. 1576 of 1961 against the decree in A.S. No. 39 of 1960, and it was held in the second appeal as per Exhibit A -61 that the first respondent had, no title, but the deceased first defendant (plaintiff in that suit) was in possession and entitled to the injunction, although it had not been found whether he had title to the suit lands or not. Thereafter, the present suit has been filed for declaration and possession on the basis that the decision rendered in S.A. No. 1576 of 1961 docs not constitute res judicata the contention being that the first respondent was not properly represented in the previous action. The defence was that the first defendant was a ryot entitled, to the suit lands and had perfected title to the same by adverse possession and that the present suit was barred by res judicata by virtue of the decision in S.A. No. 1576 of 1961. The Trial Court originally considered the question of res judicata as a. preliminary issue and upheld the plea and dismissed the suit. But, on appeal, it was held that there was no bar of res judicata, and there was an order of remand of the suit for trial on the other issues. Then C.M.A. No. 167 of 1968 was filed in this Court against the order of remand. Ramaprasada Rao, J., dismissed, the said appeal, observing thus:

(2.) THE questions arising for consideration in this second appeal, therefore, are:

(3.) RAMASWAMI Naicker had been appointed as the fit person under Exhibit A -45 by the Deputy Commissioner, Hindu Religious and Charitable Endowments Department during the pendency of the scheme proceedings and he had been solely authorised to be in charge of the conduct of the present suit under Exhibit A -76. There is nothing on record to show that when he was acting as the fit person to discharge the functions of the trustees of the first respondent any other person also was entitled to act on behalf of the first respondent and represent the same. The suit lands were stated to belong to the first respondent deity and the other respondents are stated to be trustees only in the English sense of the term. The question whether in the absence of a de jure trustee, the de facto trustee of a public charitable or religious endowment, who is in possession and management of the institution and its other properties for the time being, is entitled to maintain a suit on behalf of the temple or the institution for the recovery of trust property held adversely to the trust by a stranger, came up for consideration in Sarikaranarayana Ayyar v. Sri Poovannatha Swami Temple : (1949)2MLJ171. There Rajamannar C.J., has observed at page 196 thus: