V RAMA DAS Vs. KHANUMANTHA ROW

JUDGEMENT

(1.) The plaintiff s suit is for a declaration that he is the rightful Dharmakartha of the plaint temple and for reinstatement in the office and also for an injunction restraining the defendants from interfering with him in that office. The plaintiff s father was dismissed from the office of Dharmakartha in 1902 and died in 1905. In 1903 a suit was filed by the 1st defendant and another under Section 539, Civil Procedure Code, and a scheme of management was framed in December 1903 under which the defendants were appointed trustees of the temple (O.S. No. 10 of 1903 in the District Court of Kistna). The plaintiff has filed the suit on attaining majority. In this appeal three points arise for determination : - (1) Is the suit maintainable without a prayer for possession of the property belonging to the temple? (2) Can the plaintiff bring this Suit in view of the scheme framed under Section 539, Civil Procedure Code? (3) Has the plaintiff a hereditary right to the office of Dharmakartha?

(2.) No definite issue was framed on the first point as Mt was not specifically taken in defendants written statement, but there is an issue (No. 9) "whether the plaint is properly stamped" which is said to cover this point. We think from the District Munsif s reference to the rulings in Govindan Nambiar v. Krishnan Nambiar (1882) I.L.R. 4 M. 146 and Sanachala v. Manika (1885) I.L.R. 8 M. 516 that his attention was chiefly directed to the question of stamp duty and not to the question of maintainability of the suit, but the latter having been very definitely raised in appeal must now be decided. The Advocate-General, for the appellants, contends that the ruling in Ratnasabapathi Pillai v. Ramasami Aiyar (1910) I.L.R. 33 M. 452 passed since the decree appealed concludes the question. We think, however, the present case is distinguishable. In Ratnasabapathi Pillai v. Ramasami Aiyar (1910) I.L.R. 33 M. 452 the suit was for a declaration that the plaintiff s dismissal was invalid, for an injunction and for damages, the injunction being valued at a nominal sum of Rs. 10. In the present suit the plaintiff asks for reinstatement in office; that is, be sues for the office and for an injunction and values his relief at Rs. 2,600 which is a very substantial relief. He further states in his plaint that the temple properties are in the possession of tenants "who will pay the rents to whosoever holds the office of Dharmakartha." This statement is not traversed in the written statement and must be accepted as correct. If therefore plaintiff gets possession of the office of Dharmakartha, the tenants will pay rent to him and the plaintiff will ,obtain all the possession to which he is entitled, i.e., tile right to collect rent. The cases relied on - Ratnasabapathi Pillai v. Rangasami Aiyar (1910) I.L.R. 33 M. 452, Abdul Kadir v. Mahomad (1870) I.L.R. I.L.R. 15 M. 15, Narayana v. Shankunni (1891) I.L.R. 15 M. 255 and Jagannadha Chary v. Rama Rayar (1904) I.L.R. 28 M. 238 - can all be distinguished from the present case as in all these cases the possession of the property may be said to have been adverse to the plaintiff and Would have continued to be adverse even after the plaintiff had obtained the declaration sued for. Here it is admitted that the lands tire in possession of persons who are willing to pay rent to the plaintiff as soon as he recovers the office of Dharma. kartha and consequently the success of his suit-for the office will involve his recovery Of the temple property so far as it is possible for such recovery to be obtained, In a similar case. Kunj Bihari v. Keshar Lal Haralal (1904) I.L.R. 28 B. 567 Jenkins C.J. remarked :"How would practical effect be given to an award of possession of an office otherwise than by preventing interference with the rights of which it is made up?" and this is very applicable in the present case. The lauds attached to the a temple do not belong to the Dharmakartha who is merely the manager, but belong to the temple or idol, the Privy Council having held that an idol may be regarded as a juridical person capable of holding property - Jagandindra Nath Roy v. Hemanta Kumari Debi (1905) I.L.R. 33 C. 129. If the plaintiff in this suit were to get a decree for possession of the office and also of the lands belonging to the temple, what possession of the lands could be given by the court other than plaintiff will admittedly obtain on recovering the office, i.e., the right to collect rent from the tenants in possession? Assuming also that the consequential relief referred to in Section 42, Specific Relief Act, is a relief against the defendants in the suit and not against third parties--vide Subramaniam v. Parameswaram (1887) I.L.R. 11 M. 116 - the defendants in this suit could not give the plaintiff physical possession of the temple property as the physical possession is outstanding in the tenants. We think, therefore, that the proviso to Section 42 is no bar to the present suit.

(3.) As regards the third question we think the Subordinate Judge s finding that the office of Dharmakartha is heredity in the plaintiff s family is correct. Members of the plaintiff s family have held the office continuously since 1797 and there is no evidence that it was ever held by any other family. This is, we think, sufficient to prove the hereditary right which was in effect put forward in 1870 (Ex. A.) and does not seem to have been denied.