Research › Search › Judgment

Madras High Court · body

2021 DIGILAW 1032 (MAD)

Subramanian (Died) v. Veermalai (Died)

2021-03-22

N.SATHISH KUMAR

body2021
JUDGMENT : These two appeals arise out of the common judgment of the trial Court in O.S.No.257 of 1995 and O.S.No.18 of 1999, dated, 29.10.2004. A.S.No.37 of 2005 is filed as against the judgment and decree of the suit in O.S.No.257 of 1995, on the file of the Sub Court, Kulithalai. A.S.No.159 of 2010 is filed as against the judgment and decree of the suit in O.S.No.18 of 1999, on the file of the Sub Court, Kulithalai. 2. The parties are referred to as per their ranking before the trial Court. 3. The brief facts leading to filing of A.S.No.37 of 2005 are as follows :- 3.1. The land totally to an extent of 93.24 acres appears to have been dedicated to Rathinagireeswarar deity. The persons numbering about 84 persons in a particular community was given service enam for rendering services to the Temple. The lands have been granted to the Chief Kothan, who used to employ several other members to assist him while rendering services to the deity. The entire lands were in the custody of the Chief Kothan (Mason), namely, the plaintiff in O.S.No. 257 of 1995 and prior to him, his father, who used to lease out the lands to the third parties and get the aggregate income from all the lands and distribute the same among the Pattadars, who rendered their services to the deity during the festival times. The plaintiff and prior to him his ancestors, who were the Chief Kothans, were managing and controlling the affairs of all other Kothans and also doing services to the deity. 3.2. As there was some dispute arose, the plaintiff had filed an application in O.A.No.60 of 1981 before the Deputy Commissioner and the same was allowed. Challenging the same, an appeal was filed before the Commissioner by one Shanmugam. However, the Commissioner has held that he has no authority to decide the rival claim between the parties and directed them to approach the Civil Court. Challenging the same, a suit in O.S.No.257 of 1995 was filed before the Sub Court, Kulithalai, to declare that the plaintiff as a Chief Kothan and also to set aside the order of the Commissioner / the third defendant in A.P.No.30 of 1987 by confirming the order of the learned Deputy Commissioner and for further relief. 4. Challenging the same, a suit in O.S.No.257 of 1995 was filed before the Sub Court, Kulithalai, to declare that the plaintiff as a Chief Kothan and also to set aside the order of the Commissioner / the third defendant in A.P.No.30 of 1987 by confirming the order of the learned Deputy Commissioner and for further relief. 4. The first defendant has filed a written statement admitting the fact that 84 people were given permission to serve as Kothans. It is his contention that the plaintiff has never been in possession and enjoyment of the entire property by way of usage, custom and honour and among 84 persons, one person will be elected unanimously for doing their services. The first defendant was also unanimously elected for doing the kothu service from Chithirai festival to the next Panguni of Yuva Tamil years. It has been the practice of Pattadars to elect the leader once in a year and also to do the service only by electing a leader by majority of Pattadars. The elected leader was entitled to receive honour from the Temple and also on behalf of other Pattadars. This practice of electing a leader is a long continuous practice, which is prevailing from ancient times and it has been followed and adopted by all the Pattadars. The plaintiff is also one of the Pattadars and he is not a Chief Kothan and there is no hereditary right to receive the Temple honour and to manage the kothu services. 5. The Temple Authorities have filed a written statement admitting the fact that the plaintiff, who is called himself as a Chief Kothan is one among 84 persons employed for rendering services to the said deity. It is submitted that there is no special occasion to give temple honour to the Chief Kothan on behalf of the other Pattadars. The prasadham has been given to one person. Hence, he prayed for dismissal of the suit. 6. A suit in O.S.No.159 of 1995 was filed before the learned District Munsif, Kulithalai, by the appellant herein to declare that the Pattadars were jointly entitled to do the service manyam given in 'A' Schedule by electing one among them as a leader and to all other consequential reliefs. 7. Hence, he prayed for dismissal of the suit. 6. A suit in O.S.No.159 of 1995 was filed before the learned District Munsif, Kulithalai, by the appellant herein to declare that the Pattadars were jointly entitled to do the service manyam given in 'A' Schedule by electing one among them as a leader and to all other consequential reliefs. 7. It is the case of the plaintiff in O.S.No.159 of 1995 that his father was elected as a leader of service holder in respect of “A” Schedule and it was about 18 years ago. There was some enemity between the plaintiff's father and the first defendant's father and his paternal uncle viz., Sangapillai and a suit in O.S.No.191 of 1978 was filed before the District Munsif Court, Kulithalai, by the said Sangapillai, the uncle of the first defendant. The above suit was subsequently dismissed as withdrawn in the appeal stage with liberty to file a fresh suit. Thereafter, the said Sangapillai filed an application in O.A.No.60 of 1981 before the Deputy Commissioner, HR & CE, Trichy and the same was allowed by the Deputy Commissioner and challenging the same, an appeal filed before the Commissioner. The Commissioner has held that only the Civil Court can decide the rights of the parties. Hence, it is his contention that among 84 Pattadars, nobody has got any exclusive right over the property and held the post of Ring leader either by way of hereditary or by any other procedure without a proper election. Hence, the suit. 8. The first defendant in the above suit was the plaintiff in O.S.No.257 of 1995, took a stand that only his family was doing service as a Chief Kothan and the pleadings in this suit were almost similar to the above suit. Hence, the same need not be repeated. 9. Based on the above pleadings, the trial Court had framed six issues in both the suits and both the suits were heard in common and evidence was also recorded in the suit in O.S.No.257 of 1995. 1. Whether the plaintiff, as a chief kothan, is entitled to receive the honour of first right from the temple? 2. Whether, according to the plaintiff, the Order in O.S.No.10 of 1981 passed by the Deputy Commissioner, HR & CE, Trichy is valid, is legally sustainable or not? 3. 1. Whether the plaintiff, as a chief kothan, is entitled to receive the honour of first right from the temple? 2. Whether, according to the plaintiff, the Order in O.S.No.10 of 1981 passed by the Deputy Commissioner, HR & CE, Trichy is valid, is legally sustainable or not? 3. Whether the Order passed by the third defendant cancelling the order of the Deputy Commissioner is correct or not? 4. Whether the judgment in A.P.No.30 of 87 passed by the third defendant is liable to be set aside or not? 5. Whether the plaintiff is entitled to get relief of declaration? 6. To what other relief the plaintiff is entitled? 10. During trial, on the side of the plaintiff, P.W.1 was examined and Ex.A.1 to Ex.A.14 were marked. On the side of the defendants, D.W.1 to D.W.4 were examined and Ex.B.1 to Ex.B.23 were marked. 11. Based on the above evidence and materials, the trial Court has decreed the suit in O.S.No.257 of 1995 and dismissed the suit in O.S.No.18 of 1999. Challenging the judgment and decree of both suits, the present appeals have been filed by the plaintiff in O.S.No.18 of 1999. and the first defendant in O.S.No.257 of 1995. 12. The learned counsel appearing for the appellants would vehemently contend that the land totally to an extent of 93.24 acres was given in favour of 84 persons, viz, pattadars for performing service as Kothans (Masons). Till 1995, there was no dispute and all of them have performed their services well and the lands were under the custody of 84 Pattadars in lieu of service rendered by them. It is a practice that on behalf of a particular community, one person will be honoured by the Temple, who in turn, distribute prasatham and other materials collected by the temple. Accordingly, a person will be elected to receive the chief honour from the temple on behalf of other Pattadars. By way of election among 84 persons, one Sangapillai was receiving honour as a Chief Kothan, in the year 1978. Thereafter, some dispute arose between them, which resulted in filing of a suit in O.S.No.191 of 1978. The above suit was withdrawn by him in the appeal stage in A.S.No.82 of 1980 before the Sub Court, Karur, with liberty to file a fresh suit on the same cause of action. Thereafter, some dispute arose between them, which resulted in filing of a suit in O.S.No.191 of 1978. The above suit was withdrawn by him in the appeal stage in A.S.No.82 of 1980 before the Sub Court, Karur, with liberty to file a fresh suit on the same cause of action. Thereafter, he approached the Deputy Commissioner, in the year 1981, to claim his right to be the chief kothan. The Deputy Commissioner recognized his right, but, it was non-suited at the stage of appeal by the Commissioner, against which, a statutory suit has been filed in O.S.No.257 of 1995. Hence, it is their contention that since some persons and their family members received honour on behalf of others, it cannot be construed to mean that they were hereditary trustees. 12.1. It is their further contention that even in the application filed before the Deputy Commissioner in the year 1981 itself, it is clearly indicated that a Chief Kothan, who controlled the other Pattadars, received honour. Therefore, mere continuing as a Chief Kothan for some time for receiving honours on behalf of others, the same cannot be construed to mean that, such a right has been acquired by way of hereditary. There is no evidence to show that such rights have been exercised hereditarily. Hence, their contention is that merely on the basis of the records which only shows the receipt of honours from the Temple, the trial Court has accepted the contention that they are the hereditary trustees. Such findings of the trial Court is against law and it is not based on the proper appreciation. Even in the plaint, there is no prayer made with regard to claim of the hereditary. Therefore, it is their contention that the judgment of the trial Court is not based on the proper appreciation and the suit filed by the appellant is to be allowed permitting to conduct the election by the Executive Officer to elect one person, for receiving honour on behalf of the others. Thus, he prayed for allowing the appeals. 13. The learned counsel appearing for the respondents would submit that the evidence on the side of the Temple authorities itself clearly shows that the first respondent's family has been exercising such a right from time immemorial. Thus, he prayed for allowing the appeals. 13. The learned counsel appearing for the respondents would submit that the evidence on the side of the Temple authorities itself clearly shows that the first respondent's family has been exercising such a right from time immemorial. The documents filed by the Temple authorities, i.e., the documents in Ex.B.12 to Ex.B.25, itself clearly indicate that the plaintiff's forefathers have been exercising such a right from the very inception. That itself clearly proves the fact that such a right has been exercised for a long time as customary practice. Therefore, the trial Court has analysed this evidence and decided the issue in favour of the respondents. It is further contended that the lands have been leased by the Chief Kothan to the third parties and the appellant and the Chief Kothan got the income from these lands and distributed it among 84 Pattadars, which has also been established on record. It is their further contention that merely because, the consequential relief is not sought, the respondents cannot be non-suited, since the suit itself was filed as against the order of the authorities claiming rights to exercise their power. In support of their submissions, the learned counsel appearing for the respondents referred to the judgment of the Hon'ble Apex Court reported in 1967 AIR 436 in the case of Veruareddi Ramaraghava Reddy and others Vs. Konduru Seshu Reddy and two others, dated 26.04.1966. He has further contended that none of the Pattadars has any grievance except the appellant. That itself shows that the first respondent / plaintiff has been enjoying the property as a Chief Kothan hereditarily. Thus, he prayed for dismissal of the appeals. 14. Heard the learned counsel on either side. 15. Based on the above submissions, now the points arise for consideration are that:- (1). Mere receiving honours on behalf of entire 84 Pattadars by one person as a Chief Kothan would convey a right as hereditary trustee? (2). Whether such practice was by an election or some arrangement among the 84 Pattadars? (3). To what other relief, the parties are entitled? 16. Admittedly, there is no dispute with regard to the ownership of the property. The land to an extent of 94.24 acres belonged to the Temple. Originally, the service enam was given to 84 Pattadars. (2). Whether such practice was by an election or some arrangement among the 84 Pattadars? (3). To what other relief, the parties are entitled? 16. Admittedly, there is no dispute with regard to the ownership of the property. The land to an extent of 94.24 acres belonged to the Temple. Originally, the service enam was given to 84 Pattadars. The above said service enam given only for the purpose of rendering services to the temple. This fact is not disputed by both sides. It is also admitted that on behalf of 84 Pattadars, one person, used to receive honour from the temple for rendering services towards the deity, whereas, the contention of the first respondent herein is that only their family has been rendering services as Chief Kothan, and this practice has been prevailing for a very long time. Therefore, his contention is that his right has been accrued by way of hereditarily and by way of custom and usage. Whereas, the contention of the appellants herein is that the practice of receiving honours by one person on behalf of others cannot be construed as hereditary, but, by way of election or arrangements among the remaining 84 Pattadars. 17. Now the crux of the issue involved in this lis is with regard to the right of such individuals to receive honours from the temple. Whether such rights have been acquired by way of hereditary or by way of election, is to be decided in this lis. The first respondent has claimed that such right is by way of hereditary, whereas, the appellant has claimed that such right is not by way of hereditary, but, only by way of election. Though the evidence adduced on the side of the plaintiff, namely, the first respondent herein, shows that their forefathers have received honours on behalf of 84 Pattadars and received remuneration from the temple for some period, the fact remains that in the year 1978 itself, there was a dispute arose between the two groups, which culminated into filing of the suit in O.S.No.171 of 1978. The above suit was filed by the paternal uncle of the first respondent herein viz., Sangapillai and the same also marked as Ex.A.1 before the Court. This fact is also not disputed by both sides. The above suit was filed by the paternal uncle of the first respondent herein viz., Sangapillai and the same also marked as Ex.A.1 before the Court. This fact is also not disputed by both sides. Thereafter, an application has been filed by the said Sangapillai before the Deputy Commissioner in the year 1983, which is marked as Ex.B.6. The above said application came to be allowed, as against which, A.S.No.30 of 1987 has been filed. The above appeal was allowed. 18. On a perusal of the same, it is seen that an application has been filed by one Sangapillai, who is the uncle of the present first respondent, wherein, he claimed that the first respondent is acting as a ring leader and he has no right to receive the honour at all. He received the salary and paddy and other food items for many more years and distributed the same among the other members. The document in Ex.B.6 filed before the Deputy Commissioner in the year 1981 itself makes it very clear that the first respondent was acting as a ring leader on behalf of the other Pattadars and he has been receiving salaries for nearly two years at the relevant point of time. Therefore, the contention of the first respondent that the said right has been exercised by his family continuously and they have accrued hereditary rights, cannot be countenanced. If, such a right was continuously enjoyed, there is no need for the first respondent to make a categorical assertion in the application, which was filed before the Deputy Commissioner in the year 1981, as to the receipt of receiving such a right for two years by other side at the relevant point of time. 19. Be that as it may, in the year 1978 itself, there was a dispute among the members, which resulted into filing of the suit and this was later withdrawn in the appeal stage, however, these facts clearly indicated that their claim of “Chief Kothan” has been disputed by the other side. It is also to be noted that it is not disputed by both sides that the entire 84 people, viz., Pattadars, rendered services to the deity. Even in the revenue records and in the adangal, the names of 84 Pattadars have been clearly established. Such being a position only one particular family claims to be “Chief Kothan” as a hereditary right. Even in the revenue records and in the adangal, the names of 84 Pattadars have been clearly established. Such being a position only one particular family claims to be “Chief Kothan” as a hereditary right. Hence, this Court is of the view that all other Pattadars in whose favour the patta is still stand and in whose behalf honour is being received, are required in the suit to decide the right of the parties. To find out whether they have acquired right by hereditarily or by any custom, all other pattadars have not been made as parties. It is also to be noted that the prayer in O.S.No. 257 of 1995 makes it very clear that the declaration was sought only to recognize him as Chief Kothan till his life time, there is no whisper made with regard to claim of his right as a hereditary right. Therefore, the contention of the first respondent that his right to be a Chief Kothan is always vested with his family, cannot be countenanced. Merely because, they have been receiving honour on behalf of the other members, it cannot be claimed exclusively. Such view of the matter, the rights exclusively claimed by the first respondent and recognized by the trial Court is not in proper appreciation of evidence. 20. The documents in Ex.A.11 and Ex.A.12 also clearly indicate that the chitta and adangal also stood in the name of 84 Pattadars. The revenue records also proved the fact that they are in possession of the property. The documents in Ex.A.7 and Ex.A.10 indicate that the kist has been paid by the first respondent's grandfather viz., Annavi in the year 1975 onwards. There are some records particularly, the document in EX.B.11 to show that the remuneration has been paid to one Sangapillai, the uncle of the first respondent herein. On behalf of other Pattadars, rice and other food items are also received by the first respondent's uncle for certain period from the year 1975, as could be seen from Ex.B.11 and Ex.B.12 documents. Similarly, the documents in Ex.B.19 and Ex.B.20 also show that some remuneration has been paid by the Temple for certain period from 1995. The documents, viz., Ex.B.9 and Ex.B.10 shows that in the year 1995, the first defendant, namely, the first appellant herein, is elected as a chief kothan to receive the honour. This document coupled with Ex.B.6. Similarly, the documents in Ex.B.19 and Ex.B.20 also show that some remuneration has been paid by the Temple for certain period from 1995. The documents, viz., Ex.B.9 and Ex.B.10 shows that in the year 1995, the first defendant, namely, the first appellant herein, is elected as a chief kothan to receive the honour. This document coupled with Ex.B.6. The admission of Ex.B.6 by the first respondent makes it very clear that in the year 1981 itself, the first appellant has received honour and further that there was some arrangements among the community members in electing the Chief Kothan to receive the honour on behalf of the other members of the community. Therefore, merely because one of the members had acted as a Chief Kothan for some time, at no stretch of imagination, it should be construed to mean that they acquired right by way of hereditary or by way of any custom and usage. There is no evidence and pleadings with regard to the nature of the hereditary right, custom and usage. Merely because, for some period one was acted on behalf of the community members, such a right cannot be taken as granted by such members. The very service itself towards the deity by all the people of the particular community. Such view of the matter, this Court is of the view that recognizing one member or one family as a Chief Kothan cannot be countenanced, especially, when such persons received honours on behalf of other members. 21. D.W.4, who examined on the side of the Temple in his evidence has stated in paragraph No.5 of the chief examination that there is no evidence with regard to conduct of the election every year. He has further stated that only on behalf of the Pattadars, one person will receive honour and the person, who receives such honour on behalf of the others will sign in the records. The above fact will clearly indicate that only to render the benefits and share the paddy and other agricultural produce, one Kothan's signature is being obtained in the Register and therefore, merely on the basis of the above i.e., the signature found in the Register, one cannot claim that there is a right accrued by way of hereditarily. 22. The above fact will clearly indicate that only to render the benefits and share the paddy and other agricultural produce, one Kothan's signature is being obtained in the Register and therefore, merely on the basis of the above i.e., the signature found in the Register, one cannot claim that there is a right accrued by way of hereditarily. 22. It is stated that though consequential relief is not claimed when the suit is filed challenging the action of the authority under the old Act, the suit cannot be non-suited. But the fact remains that the person, who claims the right exclusively by way of custom, usage and hereditarily without seeking consequential relief cannot maintain the suit against the persons, who are having equal rights in the entire lands and recognized as service Pattadars, particularly, without making them as parties. Accordingly, all points are answered. 23. In the result, both these Appeals stand allowed and the decree and judgment of the trial Court in O.S.No.257 of 1995 and O.S.No.18 of 1999 are set aside and the suit in O.S.No.18 of 1999 is decreed to the effect that “A” schedule service mentioned therein to be performed only by the elected Pattadar among the majority Pattadar of “B” schedule. The period of election and selection is to be on the discretion of the Pattadars. Such elections normally to be conducted in the presence of the Executive officer to avoid any further dispute among the Pattadars and for consequential injunction restraining the second respondent/temple authorities from granting honour to any person except the elected leader. No costs.