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2021 DIGILAW 2684 (MAD)

Saroja v. Pannadi Gounder (Died)

2021-10-04

R.HEMALATHA

body2021
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of CPC, 1908 against the decree and judgment dated 04.10.2002 passed in A.S. No.68 of 1999, on the file of the Subordinate Court, Mettur, reversing the decree and judgment dated 25.04.1997 passed in O.S. No.124 of 1996, on the file of the District Munsif Court Cum Judicial Magistrate Court, Omalur.) 1. The appellants are the legal heirs of the plaintiff in O.S. No.124 of 1996 on the file of the District Munsif cum Judicial Magistrate, Omalur. 2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their ranking in the present appeal would also be indicated. 3. The plaintiff Natesan (since deceased), husband of the first appellant and father of the second appellant filed a suit in O.S. No.124 of 1996 for a permanent injunction restraining the respondents herein from interfering with conduct of festival of Arulmigu Mariamman Kaliamman Agora Veerapathira Vinayagar temple commencing from 7th day of Panguni and ending with 10th day of Panguni every year and for costs. The plaintiff Natesan in the suit had contended that he is one of the “kaniachydharars” of the suit temple and that he has got right to light the entire temple and also for arranging persons for carrying the deities of the temple. His further contention is that the respondents/defendants without any right over the suit temple is interfering with the plaintiff’s right over the temple and hence they should be permanently injuncted. 4. The suit was resisted by the defendants on the ground that the plaintiff Natesan is not a “kaniachydharar” as contended by him and that at no point of time he has conducted the festival of the temple. Their further contention is that the plaintiff in order to enforce his alleged right, did not file a petition under Section 63(e) of the The Tamil Nadu Hindu Religious and Charitable Endowments Act, before the Deputy Commissioner, Hindu Religious and Charitable Endowment Department and the suit is also barred under Section 108 of the The Tamil Nadu Hindu Religious and Charitable Endowments Act, and Section 9 Code of Civil Procedure. 5. The trial court after framing appropriate issues and after full contest, decreed the suit filed by the plaintiff vide its decree and judgment dated 25.04.1997. 6. 5. The trial court after framing appropriate issues and after full contest, decreed the suit filed by the plaintiff vide its decree and judgment dated 25.04.1997. 6. Aggrieved over the same, the defendants filed an appeal before the subordinate judge, Mettur, in A.S. No.68 of 1999. The learned subordinate judge reversed the findings recorded by the trial court and dismissed the suit filed by the plaintiff vide its decree and judgment dated 04.10.2002. 7. Aggrieved over the same the present second appeal is filed on the following substantial questions of law. I. Whether in law the lower appellate Court was right in holding that Ex.B-28 declared the rights of the respondents 1 to 4 and that the plaintiff had suppressed it ignoring the fact that the plaintiff was not a party to the proceedings and that the order was passed being his back? II. Whether in law the lower appellate Court was right in relying on Ex.B-13 to B-27 account books, which had not been proved as laid down in 2001 (2) CTC 736 and which could not be relied on for any purpose? III. Whether in law the lower appellate Court was not wrong in dismissing the suit, when the relief could have been moulded to protect appellant Kaniachy rights? 8. The main contention of the plaintiff Natesan is that he is one of the “kaniachydharars” of the suit temple. In order to establish the same the plaintiff mainly relied on Ex.A1, which is a copy of the plaint in O.S. No.269 of 1984 on the file of the District Munsif Court, Mettur in which it is stated that the present plaintiff and his brother and their fore fathers were hereditary trustees of Dhrowbathi Amman temple, Perumal temple, Mariamman temple and Karuppasamy temple. The present suit temple is totally different from the temples mentioned in Ex.A1. Ex.A2 to Ex.A6 also do not establish the fact that the plaintiff is one of the “kaniachydharars” of the suit temple. According to the plaintiff, there were 8 kaniachydharars in the suit temple and one of the “kaniachydharars” Lakshmi Achari filed a suit in O.S. No.102 of 1991 before the District Munsif, Mettur. Ex.A7 is a copy of the plaint in O.S. No.102 of 1991 on the file of the District Munsif, Mettur. The said suit was filed by Lakshmi Achari against the present defendants. Ex.A7 is a copy of the plaint in O.S. No.102 of 1991 on the file of the District Munsif, Mettur. The said suit was filed by Lakshmi Achari against the present defendants. The plaintiff as P.W.1 had deposed that Lakshmi Achari is one of the “kaniachydharars” of the suit temple. A perusal of Ex.A7 shows that Lakshmi Achari had filed a suit in O.S.No.102 of 1991 contending that the defendants are the hereditary trustees of the temple. Ex.B28 is a copy of the order passed by the commissioner HR & CE department on 26.02.1991. The first appellate court in its decision had held that the plaintiff did not file Ex.B28 since the same clearly shows that the defendants are the hereditary trustees of the temple. It is further held that in the absence of a declaratory decree, the suit for bare injunction filed by the plaintiff cannot be sustained. 9. Ms.R.Nilaphar, learned counsel for the appellant contended that though the trial court decreed the suit in favour of the plaintiff the first appellate court had wrongly assumed that the plaintiff is claiming right over the entire administration of the temple and dismissed the suit filed by the plaintiff. 10. It is pertinent to point out that the plaintiff has filed the suit for bare injunction based on his right as “kaniachydharar” in respect of the suit property. This is denied by the defendants in their written statement. However, the plaintiff did not take steps to amend the plaint seeking for a declaration that he is one of the “kaniachydharars” of the suit temple. In the earlier suit in O.S. No.102 of 1991 one Lakshmi Achari (one of the “kaniachydharars” as per the version of the plaintiff) had admitted that the defendants are the hereditary trustees of the temple. The first appellate court after analysing the oral and documentary evidence adduced on the side of the plaintiff had come to a definite conclusion that the plaintiff has not established any of his claim made in the plaint and dismissed the suit filed by him. Moreover, it is settled that filing of civil suit is barred with regard to claim of any honour, emolument or perquisite in any religious institutions by custom or otherwise. In the circumstances, I do not find any reason to interfere with the findings recorded by the first appellate court. Moreover, it is settled that filing of civil suit is barred with regard to claim of any honour, emolument or perquisite in any religious institutions by custom or otherwise. In the circumstances, I do not find any reason to interfere with the findings recorded by the first appellate court. The substantial questions of law are answered against the appellants. 11. In the result, i. the second appeal is dismissed. No costs. ii. the decree and judgment dated 04.10.2002 passed in A.S. No.68 of 1999, on the file of the Subordinate Court, Mettur, are upheld. iii. the decree and judgment dated 25.04.1997 passed in O.S. No.124 of 1996, on the file of the District Munsif Court Cum Judicial Magistrate Court, Omalur, are set aside.