APPU PILLAY Vs. PERUMAL PILLAY

JUDGEMENT

(1.) THE appellants were the plaintiffs in the suit instituted by them asking for a declaration that they were entitled to the right of management of certain charities and the endowed properties on alternate years and they further asked that they might be given possession of the properties during their periods of management and that an injunction might be issued restraining the defendant from entering upon the plaintiffs properties during the plaintiffs terms of management. THE suit was dismissed by both the lower courts. THE plaintiffs had paid court fees in the court of first instance as well as in the lower Appellate Court on the basis of a suit for possession but in the Second Appeal they paid only a court fee of Rs. 10 and on objection being taken by the office the pleader for the appellants stated that he would confine the appeal to the relief for a declaration of their rights. Objection is now taken before us that the plaintiffs being out of possession of the temple and its properties a suit for declaration alone cannot be maintained. We think this objection must prevail on the principle laid down in Rathnasabapathi Pillai v. Ramasami Aiyar (1910) I.L.R. 33 M. 452 and Ram Das v. Hanumantha Rao

(2.) THE learned pleader for the appellants contends however that -his clients are entitled to management only in the alternate years and that as they would not be entitled to-day to be placed in possession of the properties, we could not give them such a relief and all that they would be entitled to is a mere declaration of their rights. We do not think he is right in this contention in support of which he has not adduced any authority. THE learned pleader then urges that having regard to the view we have taken of the law on this point he might be allowed to pay full court fees now, treating the appeal as if it was against the execution decree. But ha has advisedly limited the scope of his appeal to the first relief asked for in the plaint viz., a declaration of his rights and we do not think we can allow him at this stage to enlarge the scope of his appeal. THE second appeal must be dismissed with costs.