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2008 DIGILAW 2833 (MAD)

Loganatha Naicker & Others v. Commissioner HR & CE, Nungambakkam & Others

2008-08-05

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- This appeal has been directed against the Judgment and decree in O.S.No.260 of 1994 on the file of the Court of Subordinate Judge, Tiruvallur. The appellants are the plaintiffs 2,4,7 to 9 in O.S.No.260 of 1994. The suit was filed by the plaintiffs challenging the order passed in A.P.No.85 of 1988 dated 35. 1994 by the first defendant/The Commissioner, Hindu Religious and Charitable Endowments Department. 2. The case of the plaintiffs in a nutshell is that as Hereditary Trustees, they are administering the affairs of the temple by name Sri Srinivasa Perumal at Koppur Village, Tiruvallur Taluk, Chengai M.G.R.District and that the said temple belongs to the people belonging to Vanniyar Caste. According to the plaintiffs, as per Section 6(11) and 63(b) of Hindu Religious and Charitable Endowment Act 22 of 1959(Hereinafter referred to as "Act"), the above said temple at Koppur belongs to the plaintiffs family who were three in number originally later swelled into nine comprising of three hundred families. It is further case of the plaintiffs that as per Section 6(11) of the Act, the plaintiffs are appointed as Hereditary Trustees and that the plaintiffs are maintaining the temple and they bear their electricity expenses, and daily pooja expenses etc. To declare the plaintiffs as the Hereditary Trustees, the plaintiffs have filed O.A.No.9 of 1985 before the second defendant/The Deputy Commissioner, HR &CE Administration Department, Nungambakkam High Road, Madras-34 but the same was dismissed. There is no property for the temple. Aggrieved by the findings of the second defendant/The Deputy Commissioner, HR & CE Department in O.S.No.9 of 1985 , the plaintiffs have preferred an appeal in A.P.No.85 of 1988 before the first defendant/Commissioner, HR & CE Department which was also decided against the plaintiffs. Challenging the said order of the first defendant /Commissioner, HR &CE Department in A.P.No.85 of 1988, the plaintiffs have preferred the suit in O.S.No.260 of 1994. 3. The second defendant in his written statement would contend that the plaintiffs are the Hereditary Trustees as defined under Section 6(11) of the Act. The suit temple is a public temple. The petition filed by the plaintiffs to declare them as Hereditary Trustees before the second defendant/Deputy Commissioner, HR & CE Department was dismissed on 20.6.1988. An appeal preferred by the plaintiffs against the said finding was also dismissed by the first defendant/The Commissioner, HR &CE Department in A.P.No.85 of 1988 on 35. The suit temple is a public temple. The petition filed by the plaintiffs to declare them as Hereditary Trustees before the second defendant/Deputy Commissioner, HR & CE Department was dismissed on 20.6.1988. An appeal preferred by the plaintiffs against the said finding was also dismissed by the first defendant/The Commissioner, HR &CE Department in A.P.No.85 of 1988 on 35. 1994. The plaintiffs have failed to produce any evidence to show that they are the Hereditary Trustees of the suit temple as required under Section 63 of the Act. Hence the suit is liable to be dismissed. 4. Before the learned trial Judge, P.Ws 1 to 3 were examined and Exs A1 to A4 were marked. On the side of the defendants Inspector, HR &CE Department was examined as D.W.1 and Exs B1, a file relating to A.P.No.85 of 1988 was marked. After meticulously going through the evidence both oral and documentary, the learned trial Judge, finding no material to interfere with the order of the first defendant/Commissioner in A.P.No.85 of 1988 dated 35. 1994 has dismissed the suit which necessitated the plaintiffs to approach this Court by way of this appeal. 5. Now the point for determination in this appeal are i) Whether the plaintiffs are the Hereditary Trustees of Sri Srinivasa Perumal Temple at Koppur Village, Tiruvallur Taluk? ii) Whether the Judgment and decree in O.S.No.260 of 1994 on the file of the Court of Subordinate Judge, Tiruvallur is liable to be set aside for the reasons stated in the memorandum of appeal? 6. Heard the learned counsel appearing for the appellants as well as the learned Special Government Pleader(HR &CE Department) appearing for respondents 1 and 2 and considered their submissions. 7. Point No 1: Section 6(11) of the Act defines" Hereditary Trustee" as follows: " Hereditary Trustee" means the trustee of a religious institution, the succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force". Before the trial Court, 4th plaintiff has examined himself as P.W.1. According to him, the temple was installed by his grand father Kandaswamy Naicker and one Subbaraya Naicker, son of Kuppusamy. He would admit that the electricity consumption charges were paid by one Manicka Naicker in whose name the electricity connection for the said temple stands. Before the trial Court, 4th plaintiff has examined himself as P.W.1. According to him, the temple was installed by his grand father Kandaswamy Naicker and one Subbaraya Naicker, son of Kuppusamy. He would admit that the electricity consumption charges were paid by one Manicka Naicker in whose name the electricity connection for the said temple stands. But admittedly, the said Manicka Naicker is not the plaintiff in the suit and he has not filed any application before the second defendant to declare him as a Hereditary Trustee of the said temple. In the cross examination P.W.1, would admit before the trial Court that there is no material available with him to show that they are the hereditary trustees of the temple. Further even before the trial Court, the plaintiffs have not produced any material to show that they are the elected trustees of the temple by their community people. P.W.2, a Senior citizens of Koppur Village would admit in the cross examination that the electricity connection for the temple stands in the name of the trustee. But no document was produced to show that the electricity connection for the temple stands in the name of Manicka Naicker as claimed by P.W.1 and P.W.2. P.W.3 would depose in the cross examination that the daily poojas for the temple are being performed by the plaintiffs. To show that the daily expenses for the temple are being met by the plaintiffs so called trustees, there is absolutely no evidence placed before the trial Court. The learned trial Judge,after coming to a correct conclusion since the plaintiffs have failed to produce any evidence either before defendants 1 and 2 or before the trial Court has held that there is no reason to interfere with the findings of the first defendant in A.P.No.85 of 1988 dated 35. 1994 has dismissed the suit which does not warrant any interference from this Court. 1994 has dismissed the suit which does not warrant any interference from this Court. 7a) The learned counsel appearing for the appellants relying on the evidence of D.W.1, the Inspector, HR & CE Department as to the effect that there is a plaque in the temple to show that the temple was formed by the people belonging to Vanniyar Community and that the same is being maintained by the people belonging to Vanniyar Community and that he is not aware as to whether any engravement in the plaque as to the effect that the temple is being maintained by the Hereditary Trustees, would make a representation that in case, if the plaintiffs made an application either before the Joint Commissioner or before the Deputy Commissioner of HR & CE Department under Section 64 of the Act, a direction may be given to the defendants 1 and 2 to decide the same independently and that findings in this appeal shall not be res judicata for a finding to be given under Section 64 of the Act. Under such circumstances, I hold on point No.1 that there is no material placed before the Court below by the plaintiffs to show that they are the hereditary trustees of Sri Srinivasa Perumal Temple at Koppur Village, Tiruvallur Taluk. 8.Point NO.2: In view of my findings in the earlier paragraphs, I hold on point No.2 that the Judgment and decree in O.S.No.260 of 1994 on the file of the Court of Subordinate Judge, Tiruvallur need not be set aside for the reasons stated in the memorandum of appeal. 9. In fine, the appeal is dismissed confirming the Judgment and decree in O.S.No.260 of 1994 on the file of the Court of Subordinate Judge, Tiruvallur. No costs. It is made clear that the findings will not be res judicata for a petition to be filed by the plaintiffs under Section 64 of the Act either before the Joint Commissioner or the Deputy Commissioner of HR & CE Department in future.