Ramiah Konar v. The Commissioner, H.R. And C.E. A Department And Anr.

1. This second appeal is canvassed against the decree and judgment rendered by the learned District Judge, Tirunelveli, in A.S. No. 79 of 1981 on 31.8.1981 whereby, he set aside the decree and judgment rendered by the trial court, the learned Subordinate Judge, Tirunelveli made in O.S. No. 86 of 1978 on 31.8.1979, decreeing the suit which was filed by the appellant herein.

2. The brief facts, which led to the second appeal, as culled out from the records, may be stated as follows:

The appellant herein is the second plaintiff before the trial court and the suit was laid against the respondents herein, being the constituted authorities under the Hindu Religious and Charitable Endowments Act, praying for the declaration that the suit temple by name Mariamman temple is a denominational temple exclusively belonging to Keelatheru Yadavas of Mullaikulam and for permanent injunction restraining the Officers of the H.R. & C.E. Department, namely, the defendants from in any way interfering with the administration and management of the said temple in question. Claiming that the Mariamman temple in question was constructed about 150 years age by the ancestors of Keelatheru Yadhavas of Mullaikulam village, managed and administered with full control by the Yadhava Community people alone who were the residents nearby the temple and that as such, the other sect of Yadhavas and other community people have no right of worship or management of the temple, the relief aforesaid has been claimed by the plaintiffs herein and that apart, necessary poojas were being held and conducted by themselves. Valuable properties were gifted by them which are under the lock and key of Keelatheru Yadhavas. According to the plaintiffs they have been paying electricity charges for the temple out of the collections made exclusively from Keelatheru Yadhavas and the salary has been paid to the poojari of the temple out of the said collection. Festivals were conducted and performed by themselves exclusively alone. While that being so, a notification dated 3.3.1978 by the respondent calling for application from the public for the appointment of trustees to the said temple as per the provisions of H.R. & C.E. Act 22 of 1959, on or before 31.3.1978 was published. As the said temple was a denominational temple, the said Yadhavas of Mullaikulam did not make any application. Hence, they were constrained to file the suit.

3. The suit was resisted by the respondents herein, by inter alia contending that since no statutory notice under Section 80 of the Code of Civil Procedure was given to the defendants prior to the filing of the suit, it is not at all maintainable and liable to be dismissed in limine and that the suit temple was not a denominational temple but however a public temple being maintained and administered by the H.R. & C.E. Department and the deceased first plaintiff was appointed as one of the trustees of the said temple even in the year 1975 and after him one Veliaichamy was appointed as trustee and thereafter the notification was issued and for the said reason, the plaintiff cannot claim that he is the elected trustee of the Keelatheru Yadhavas. The defendant would further contend that the temple in question owned 32 cents of land which was originally a Zamin land in Thirumalai Naicken Pudukudi Mitta Estate and taken over by the Government subsequently on 3.1.1951 with the survey taken place in the year 1955 and the pattadars of this extent of land were one Ramaswamy Konar, Sankarapandia Konar and others and out of the said pattadars, Ramiah Konar alone was a Yadhava and that the plaintiff cannot claim that the immovable property has been purchased from out of the collection made exclusively from Keelatheru Yadhavas. It was also contended that during the Panguni festival time, all the Hindus of the village will prepare Holy Pongal and offer it to the deity in question and by so pleading it was claimed that the suit temple was not a denominational one and as such, the suit is premature and thus the defendants have denied the claim of the plaintiff in all.

4. Upon the said pleadings by settling eight issues as referred to in the judgment rendered by the trial court at page 3 paragraph 5, the trial court examined three witnesses on behalf of the plaintiff and marked Ex.A-1 to Ex.A-1 and Ex.B-1 to Ex.B-3 on behalf of the defendants. On considering the oral and documentary evidence and the rival pleadings taken on behalf of both parties, the trial court has held that the suit temple is a denominational one exclusively under the management of Keelatheru Yadhavas and that the suit was maintainable without the issue of notice under Section 80 of the Code of Civil Procedure and that therefore, it is not premature. With the result, the trial court decreed the suit without costs and granted injunction subject to the powers of the defendant under Section 51 of the Hindu Religious and Charitable Endowments Act.

5. This judgment was canvassed in the appeal preferred by the respondents herein in A.S. No. 79 of 1981. After assessment of the entire pleadings, adduced evidence and the rival contentions projected, the learned lower appellate Judge has set aside the decree and judgment passed by the trial court and dismissed the suit in all however without costs. Aggrieved at this, the present second appeal has been filed. The same has been admitted by Ratnam, J. as he then was, on 24.9.1982, to probe the following substantial questions of law:

(1) Whether the suit temple is a denominational one or not?

(2) Whether the suit is not maintainable for want of notice under Section 80, C.P.C.?

6. I have heard the arguments by the Bar on behalf of the respective parties. Mr. Thiagarajan, learned Counsel appearing on behalf of the appellants herein, took me through the entire judgment rendered by the lower appellate Judge, who has reversed the findings given by the learned trial Judge. While doing so, it was the endeavour of the Bar for the appellants to point out that the findings recorded by the lower appellate Judge reversing the judgment rendered by the trial court is perverse and not based on the correct appreciation of facts and law. For the said reason, the Bar for the appellant persuaded me to accept the various findings of the trial Judge and set aside the judgment by the lower appellate Judge. Mr. Swaminathan, learned Additional Government Pleader (C.S.), besides controverting every one of the contentions raised on behalf of the appellants drew my attention to the fact of non-maintainability of the suit itself by the plaintiff as it was filed for the reason of the non-compliance of the procedural mandate provided under Order 1, Rule 8 of the Code of Civil Procedure and that even so, the substantial questions of law framed by this Court for probing in this second appeal is the same which has already been considered elaborately by the two courts, namely, the trial Court and the lower appellate court but however ended against the plaintiff and that for the said reason, the learned Additional Government Pleader (C.S.) pleaded for the total rejection of the second appeal in limine.

7. In the light of the above rival position, on analysing the recorded oral and documentary evidence and the two judgments rendered by the courts below on the basis of the same in the context of rival contentions, I may at the outset observe that there is not even a single substantial question of law available in this second appeal for probing as provided under Section 100 of the Code of Civil Procedure. To substantiate my above view, it has become necessary for me to advert the various issues settled by the trial court in its judgment, which are the following:

1. Whether the suit is maintainable without the issue of notice under Section 80, C.P.C. Notice?

2. Whether the plaintiffs are the representatives of Keelatheru Yadhavas of Mullaikulam Village?

3. Whether the Keelatheru Yadhavas had been in exclusive administration, management and control of the temple?

4. Whether the temple in question is a public temple?

5. Whether the suit property is a denominational temple?

6. Whether the plaintiff is entitled to an injunction?

7. Whether the suit is premature?

8. To what relief, if any, are the plaintiffs entitled?

8. Upon the above settled issues, evidence was recorded and documents were marked and elaborate findings had been given by the learned trial Judge in his judgment. However, in the appeal, the following points were framed for consideration:

(1) Whether the suit temple is a denominational temple exclusively belonging to the Keelatheru Yadhavas of Mullaikulam village? (2) Whether the suit is maintainable without notice under Section 80 of the Code of Civil Procedure?

9. On a consideration and appraisal of the entire judgment of the trial court and the recorded evidence and arguments upon the same points and issues, the lower appellate Judge reversed the findings of the trial court and set aside the same, and dismissed the suit but however without costs. Therefore, it is one thing to admit the second appeal for the reason of the reversal finding given in the appeal but however, the points of substantial questions of law remain the same, which were adopted in the second appeal also for probing. As was rightly pointed out by the learned Additional Government Pleader since the above two points for consideration in the context of the substantial questions of law have since already been discussed and dealt with in toto by the learned lower appellate Judge, the present two points cannot be deemed to be the substantial questions of law. On this ground alone, the second appeal must necessarily fail.

10. For the purpose of ascertaining whether the findings given by the lower appellate Judge on the above two points are correct or not on par with law, it needs no further elaborate discussion for me except to outline the exercise done by the learned lower appellate Judge in paragraphs 9, 10, 11, 12 and 13 of his judgment, which are extracted as hereunder:

9. In paragraph 3 of the plaint it is vaguely stated that the ancestors of Keelatheru Yadhavas have founded a Mariamman temple 150 years ago. The date or year of the construction of the temple and the names of the persons who founded the temple do not find place in the plaint. There is no document to prove that the suit temple was constructed about 150 years ago by the ancestors of Keelatheru Yadhavas. There is neither document nor tangible evidence to prove that the suit temple has been in management of Keelatheru Yadhavas for the past 150 years. In paragraph 4 of the plaint it is vaguely alleged that the valuable articles of Poojas have been gifted by Keelatheru Yadhavas. No other detail is given in the said paragraph. It is not known as to when, by whom and which article was gifted to the temple. It is further alleged in the same paragraph that immovable properties were purchased to the temple through its trustees who are Keelatheru Yadhavas from out of the funds collected exclusively from Keelatheru Yadhavas. The date or month or year of the purchase of the property, the details of the properties purchased, the names of the vendors and vendees have not been whispered in the plaint. No document has been produced to prove this version. There is no scrap of paper to prove the alleged collection or contribution from Keelatheru Yadhavas and the payment of salary to the poojari. No record has been produced to prove that Keelatheru Yadhavas spent amount for celebrating Panguni Festival.

10. The oral evidence adduced in this case is not sufficient to prove that the temple was constructed by Keelatheru Yadhavas. P.W.1 has deposed that one Arunachala Konar founded the temple. It is not mentioned as to when he constructed the temple. It is not mentioned in the plaint that Arunachala Konar founded the temple. As already pointed out, it is vaguely mentioned in the plaint that immovable properties were purchased from out of the amounts contributed by Keelatheru Yadhavas. P.W.1 has given a different version. He says that Arunachala Konar gifted 32 cents of land to the temple. There is no document in support of his contention and there is no record to prove this fact. If Arunachala Konar actually gifted 32 cents of land to the temple it is not known as to why the plaintiffs have failed to mention this fact in the plaint. P.W.1 has admitted that there is no record to prove that 32 cents of land belonging to the temple, was purchased by Keelatheru Yadhavas that they elect trustees and that the suit temple was constructed 150 years ago.

11. It is admitted by P.Ws.1 and 2 that there is a hundi outside the temple. P.W.1 says that the amount collected in the hundi will be spent for another temple. But P.W.2 has admitted that the said amount will be spent for the suit temple and for another temple. He has also admitted that the deity will be taken through the important streets in the village that all the Hindus will worship, that the temple is situated on the poromboke land and that there is no account in the temple. He has conceded that the villagers will pay contribution. P. W.3 Kandasamy has stated in the course of the cross-examination that other Hindus will come to the suit temple and worship and that he will also assist in celebrating the festival. He says that there is a document to show that 32 cents of land was purchased and that the Nattanmai showed the document to him. The said document has not been produced in this case.

12. The plaintiffs have produced Ex.A-1 patta which is in the name of the huqdar Perumal Konar. It is not mentioned therein that the land belongs to the suit temple. The exact date of issue of patta is not known. Exs.A-2 to A-4 are electric bills and Exs.A-5 to A-8 are kist receipts. Ex.A-2 relates to February, 1978 and Exs.A-3 and A-4 relate to the year 1977. Exs.A-5 and A-6 have been issued for the year 1979. Ex.A-7 is dated 21.6.1964 and Ex.A-8 has been issued on 8.6.1962. These documents are not the documents of title and they do not prove that the suit temple exclusively belongs to Keelatheru Yadhavas. One T. Ramiah Konar has given Exhibit B 1 application dated 22.1.1974 to the 2nd defendant for appointment as trustee to the suit temple. Ramiah Konar is said to have been appointed by H.R. & C.E. Department and the Inspector, H.R. & C.E., Sankarankoil has issued Ex.A-9 receipt dated 14.4.1974 for the contribution received from the suit temple.

13. The villagers of Mullaikulam sent Exs.B-2 and B-3 applications dated 23.1.1974 and 28.1.1974 respectively. Ex.B-2 was sent to the Commissioner, H.R. & C.E., Ex.B-3 was sent to the Deputy Commissioner, H.R. & C.E. It is described in Exs.B-2 and B-3, that these petitions have been sent by the public of Mullaikulam. It is mentioned as follows:

It is not mentioned that the petition was sent by Keelatheru Yadhavas of Mullaikulam. Further it is the case of the plaintiffs that the suit temple belongs to Keelatheru Yadhavas of Mullaikulam village. In Exs.B-2 and B-3, it is mentioned as if it belongs to some families. It is mentioned in Exs.B-2 and B-3 as follows:

In these petitions, people belonging to other communities have signed. One Vallangapuli Thevar and one Manimuthu Nadar have signed in these petitions. Some of the signatories have not noted their caste names and it is not known whether they belong to Konar community or other community. Anyhow, it is significant to note that other community people have also signed in Exs.B-2 and B-3. They have signed as members of the public and not as attesters to these petitions. Under these circumstances, I hold that the plaintiffs have failed to prove that the suit temple exclusively belongs to Keelatheru Yadhavas of Mullaikulam Village. I find point No. 1 accordingly.

Beyond the thread-bare discussion of every adduced oral and documentary evidence on behalf of the respective parties, by the learned lower appellate authority as above referred, I do not find anything more remains to be done in this regard and for the said reason, I am fully constrained to hold that the appellants/plaintiffs had virtually and totally failed to prove that the suit temple is a denominational temple and not a public temple by adducing any legally acceptable evidence of any kind in the instant case. It is the well settled law by now that in this part of the land, the presumption according to law is that all existing temples are public ones and every member of the public has equal right to go and participate in the festival and worship the deity without detriment to others and those who set up the plea that the temple is exclusively belonging to them and other persons are not entitled to, are bound in law, to prove and establish the said exclusiveness and thus, the onus heavily cast upon the plaintiffs is seen to have not at all been discharged nor any iota of evidence made available by and on behalf of the plaintiffs in this case. Mere claim made on behalf of the plaintiffs as observed by the learned trial Judge is not enough to hold that the suit temple is a denominational temple. Admittedly, it exists in a Government poromboke land and in the context that no one knows who constructed the temple out of which fund and whose money, it is highly impossible to accede the claim of the plaintiffs, who are the appellants herein.

11. With regard to the second point, for the reason of the learned lower appellate Judge has elaborately discussed the matter by adverting the various case laws in the context of Section 80 of the Code of Civil Procedure, the non-issuance of notice under Section 80 of the Code of Civil Procedure to the H.R. & C.E. Department, who is having full and total control over the suit temple in question since 1970 onwards is clearly an obstacle and bar for the suit and therefore, the findings given by the lower appellate Court on the second point also is quite justifiable and reasonable in all the legal purviews.

12. Thus, after having considered the entire gamut of the matter, I do not come across with any laches or erroneous finding given by the lower appellate court in declaring that the plaintiffs had failed to establish their case and that therefore, they are to be nonsuited.

13. As was rightly and justifiably contended by the learned Additional Government Pleader, Mr. Swaminathan, the suit was filed for the relief of declaration and injunction for and on behalf of the Keelatheru Yadhavas of Mullaikulam village on the ground that the suit temple was constructed by Keelatheru Yadhavas, managed and administered by them only and as such it exclusively belongs to them. It is seen further that the plaintiff who filed the suit died and the second plaintiff came into the picture but however, the suit was not filed in a representative capacity. To sustain a suit filed in a representative capacity, the special procedure provided for the same under Order 1, Rule 8 of the Code of Civil Procedure has to be followed and this aspect has not been adhered to in this case either by the trial court or lower appellate court even though an issue, namely, whether the plaintiffs are the representatives of keelatheru Yadhavas of Mullaikulam village has been framed. I find that there are no discussions or adverting of the evidence or finding on this point. For the reason of the said lacuna and the non-compliance of the law, as has been pointed out by the learned Additional Government Pleader, I have to necessarily consider the said aspect. In Assistant Commissioner, H.R. & C.E., Salem v. Nattamai K.S. Ellappa 100 L.W. 240. a learned single Judge of this Court while dealing with the scope of Sections 6(20), 51 and 107 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, pertaining to the "Religious denomination", has observed as follows:

Order 1, Rule 8, Code of Civil Procedure enables one or more persons to sue on behalf of numerous persons having the same interest with the permission of the Court. If an individual seeks to advance the claim of a group of persons, he is enabled to do so, by virtue of the provisions of Order 1, Rule 8, Code of Civil Procedure, but the procedure prescribed therein should be strictly followed. The benefit of the rule is available only to persons who fulfil the requirements thereof. It is well known that there is a clear legislative concern in the entire Code indicating that the court should make judicial orders only after hearing the persons likely to be affected by any decision in any cause. If a person is permitted to sue as a representative of another, or a group of persons, it is a matter of far-reaching effect as it is likely to affect the interests of those who may not participate at the hearing of the suit. Such persons are obviously entitled to put-forth their objections to the filing of the suit and to the capacity of the representative who seekseither to be the plaintiff or defendant and even to the merits of the cause. All that will be possible only if the party sought to be represented is given an opportunity to raise objection, if any. It is only in accordance with the said salutary principle, the procedure in Order 1, Rule 8, Code of Civil Procedure has been prescribed.

The object of the rule in Order 1, Rule 8, C.P.C., is to avoid unnecessary tedium and expense of litigation and to give a binding force to the decision which may be ultimately passed in the suit. A person cannot seek to advance the claims of groups of persons or community without adopting the procedure under Order 1, Rule 8, Code of Civil Procedure, if the relief is prayed for only on the basis of the rights of the community as such. It is no doubt true that Order 1, Rule 8, Code of Civil Procedure presupposes that each one of the numerous persons by himself has a right or suit. If a person himself has no such right to sue, he cannot be permitted to sue on behalf of the others who have a right. But the distinction has to be maintained between cases where the individual puts forward a right which he has acquired as a member of a community and cases where the right of the community is put forward in the suit. If it is the former, the individual is not debarred from maintaining the suit in his own right in respect of a wrong done to him even-though the act complained of may also be injuries to some other persons having the same right. If it is the latter the procedure under Order 1, Rule 8, Code of Civil Procedure has to be followed and without doing so, no relief could be granted to the individual concerned.

The foundation of Order 1, Rule 8, Code of Civil Procedure lies in a principle which transcends the personal or parochial nature of the combatants who are arrayed as parties to the suit. It affects the rights of the persons not present before the court. Hence, a duty is cast on the Court itself to follow meticulously the procedure prescribed by Order 1, Rule 8, Code of Civil Procedure and it is immaterial whether the defendants raised the objection in the written statement or not.

14. In Seeni Thevar v. Velayittha Raja (1992)2 M.L..J. 530, a learned single Judge of this Court also had occasion to consider the scope of the definition 'temple' and denominational temple as provided under Section 6(20) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 in the following words:

Further the question whether a temple is a public one (coming under the Act) or a private one (not coming under the Act), can be decided only by the Deputy Commissioner, H.R. and C.E. Department under Section 63(a) of the Act, and not by the Civil Court. The decisions like State of Bihar v. Bisheswar Das , Bhagwan Din v. Har Saroop A.I.R. 1940 P.C. 7: (1940)1 M.L.J. 1: 195 I.C. 305 : 671.A. 1 and Chakkarai Chetti v. Board of Commissioners, H.R. & C.E., 67 L.W. 830. relied on by the court below only dealt with the question whether the temple in question was a private one or a public one. So, in this regard, I am also of the view that the approach of the courts below is not correct.

The term 'denominational temple' no doubt is not defined under the Act, though Section 107 of the Act says, "nothing contained in this Act shall, save as otherwise provided in Section 106 and in Clause (2) of Article 25 of the Constitution, be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution. Section 51 of the Act also no doubt refers to a religious denomination. Anyway, though there is no definition of the term 'religious denomination' either in the Act or in the Constitution of India, (which gives certain fundamental rights to such religious denominations under Article 26 thereof), it has been judicially interpreted by the Supreme Court in several decisions.

15. By giving such observations while referring the definition Clause (2) of Section 6 of the Act, learned Judge has also observed that whether a given temple is a denominational one or a private temple is a question to be decided by the competent authority under the Act and not by the civil court under the relevant provisions of the Act. Of course, with regard to the above aspect no such plea has been taken nor was it the endeavour of the Bar for respective parties to project the said contentions before me.

16. It is therefore under the circumstances having considered the entire gamut of the case records, adduced evidence, rival contentions and established facts and proof, I am totally unable to identify any erroneous approach or defective approach adopted by the lower appellate Judge in reversing the decree passed by the trial Court. On the other hand, I fully endorse my view with the contentions raised by the learned Additional Government Pleader (C.S.) in its entirety and accordingly the appellants have necessarily to fail.

17. In the result, the appeal fails and accordingly shall stand dismissed. The decree and judgment rendered by the learned lower appellate Judge in A.S. No. 79 of 1981 is hereby maintained. However, under the circumstances, there will be no order as to costs.