Ravi v. The Commissioner H.R. & C.E

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.06.2008CORAM :THE HON’BLE MR. JUSTICE S.TAMILVANANA.S.No.847 of 1996Ravi .... Appellantvs.1. The Commissioner H.R. & C.E., (Admn. Department) Chennai – 34.2. The Assistant Commissioner H.R. & C.E., Department, Thanjavur. .... RespondentsAppeal filed against the Judgment and Decree, dated 28.06.1996 madein O.S.No.152 of 1990 on the file of the Principal Subordinate Judge,Nagapattinam. For Appellant : Mr.Srinath Sridevan for Mr.R.RameshFor Respondents : Mr.M.R.Murugesan Spl.G.P (H.R. & C.E.,) for R1 Mr.M.V.Krishnan, for R2 JUDGMENTThis appeal has been preferred against the Judgment and Decreedated 28.06.1996 made in O.S.No.152 of 1990 on the file of the PrincipalSub-Court, Nagapattinam, whereby the suit filed by the appellant, underSection 70 (2) of the H.R. & C.E., Act was dismissed. 2. The appellant herein was the plaintiff before the trial court.He filed the suit, seeking a declaration that the plaintiff is thehereditary trustee of Sri Mariamman Temple of Kundalur Village, NanilamTaluk with its poojariship and all of its proprietary and otherconsequential relief. The suit was resisted by the respondents herein asdefendants. The trial court, after considering the oral and documentaryevidence and the arguments advanced by both sides, held that theappellant herein is not entitled to the relief sought for andaccordingly, dismissed the suit. Aggrieved by which, this appeal hasbeen preferred. https://hcservices.ecourts.gov.in/hcservices/

3. It is not in dispute that Arulmigu Mariamman Temple, situated atKundalur Village, Nanilam Taluk, within the jurisdiction of the Courtbelow was constructed nearly 150 years ago, prior to the date of filingof the suit. According to the appellant, his forefathers had built thetemple, performed Kumbabishekam and maintained the temple. The appellantand his forefathers had kept the temple under their lock and key and noone in the village has claimed any proprietary or managerial interest inthe temple. The temple owns about 64 cents of dry land, having coconutgrow planted nearby the temple.4. In the written statement filed before the trial court by therespondents herein, the plea of the appellant that the temple had beenconstructed by the forefathers of the appellant has been disputed.According to the respondents, the appellant cannot claim hereditarytrusteeship. Since an outsider, one Subramania Iyer had also endowedsome properties to the temple, it cannot be a private temple of theappellant. As per the document, the appellant and his ancestors werestated only as poojaris to the temple. In the written statement, it hasbeen further stated that the temple has some enam lands and some thirdpersons have also endowed properties. As found by the trial court, theappellant and his great grandfather could not speak about theconstruction of the temple. Further, it was contended that the suitfiled under Section 70 of the H.R. & C.E., Act is barred by limitation.5. Based on the grounds of appeal and the impugned Judgment, pointsfor determination arising in this appeal are framed as follows :1. Whether the suit filed by the appellant was barred bylimitation, as decided by the trial court ?2. Whether the appellant has established that he is thehereditary trustee of the suit temple and as such entitled todeclaration and other consequential relief sought for in the suit ?6. It is not in dispute that as per Section 70 of the H.R. & C.E.,Act, being aggrieved by the order passed by the Commissioner, H.R &C.E., first respondent could have instituted the Statutory Suit within90 days from the date of receipt of the copy of the order. Section 70 ofthe H.R. & C.E., Act reads as follows :"70. Suits and appeals – (1) Any party aggrieved byan order passed by the Commissioner -(i) under sub-section (1) or sub-section (2) ofsection 69 and relating to any of the mattersspecified in section 63, section, 64 or section 67;or(ii) under section 63, section 64 or section 67read with sub-section (1) (a), 2 or 4 (a) of section22 or under section 65 may, within ninety days fromthe date of the receipt of such order by him,institute a suit in the Court against such order,and the Court may modify or cancel such order, but https://hcservices.ecourts.gov.in/hcservices/ it shall have no power to stay the order of theCommissioner pending disposal of the suit.(2) Any party aggrieved by a decree of theCourt under sub-section (1), may, within ninety daysfrom the date of the decree, appeal to the HighCourt." 7. It is an admitted fact that the Assistant Commissioner, H.R. &C.E., Nagapattinam, initiated proceedings in Rc.No.4748/83, dated06.04.1983 for appointment of non-hereditary trustee to the suitMariamman Temple. Hence, Natesan Chettiar, had filed petition inO.A.32/83 on the file of the Deputy Commissioner, Mayiladuthurai, underSection 63(b) of Tamil Nadu Act 22/58 to declare him as hereditarytrustee of the temple. According to the appellant, the said NatesanChettiar is his Great grandfather. After enquiry, the DeputyCommissioner, H.R & C.E., held that there is no proof to establish thatthe suit temple was managed by three generations of Natesan Chettiar.The petition filed under Section 63(b) was accordingly dismissed on27.12.1984. Aggrieved by which, Natesan Chettiar preferred an appealbefore the first respondent in A.P.18/1988. During the pendency of theappeal, Natesan Chettiar died and the plaintiff, who was then a minor,was brought on record, as per a Will, dated 22.06.1981, executed byNatesan Chettiar. The first respondent dismissed the appeal on02.06.1990, after hearing both sides on merits. Aggrieved by the order,the Statutory Suit under Section 70 of H.R. & C.E., Act was filed.8. As per the impugned decree, it is seen that the suit was filedon 09.11.1990, though the order of the first respondent was passed on02.06.1990. The appellant had filed copy application on 18.06.1990 andobtained certified copy on 02.07.1990 itself. Admittedly, the appellantfiled the suit only on 09.11.1990, though it could have been filed, asper Section 70 of the H.R. & C.E., Act, on or before 02.10.1990, within90 days from the date of receipt of the copy of the order. The trialcourt, considering the aforesaid facts and circumstances, has held thatthe suit was barred by limitation.9. Mr.Srinath Sridevan, learned counsel appearing for the appellantcontented that the appellant had to issue notice under Section 80 CPC,before filing the suit and it was given on 28.08.1990, under theoriginal of Ex.A.6. He was waiting for two months for the reply andtherefore, 60 days should be added with the period of 90 dayslimitation, prescribed under Section 70 of H.R. & C.E., Act. In supportof his contention, the learned counsel relied on the decision,T.P.K.Nair vs. Union of India, reported in AIR 1991 Kerala 80. The saiddecision is not related to a suit filed under the H.R. & C.E., Act.10. Per contra, Mr.M.R.Murugesan, Special Government Pleader, H.R.& C.E., appearing for the first respondent contended that for astatutory suit filed under Section 70 of the H.R. & C.E., Act, no notice https://hcservices.ecourts.gov.in/hcservices/ under Section 80 CPC is required as mandatory. Even if such notice isgiven, the suit could have been filed within 90 days, as per the saidAct and hence, according to the respondents, the suit filed by theappellant after 90 days is barred by limitation. He further contendedthat the decision cited by the learned counsel for the appellant is notapplicable to the facts and circumstances of this case. He submittedthat in the aforesaid decision, suit was filed by the appellant,claiming that he was entitled to provident fund and gratuity, making theUnion of India, as one of the defendants in the suit. Since the Union ofIndia was the party to the suit, Section 80 CPC was mandatory. In theinstant case, no statutory notice under Section 80 CPC is mandatory, asthe statutory suit was filed under Section 70 of the H.R. & C.E., Act.11. Division Bench of this Court in Tholappa Iyengar etc., vs.Executive Officer, Sri Kallalagar Devasthanam etc & 7 others, reportedin 1993 (2) LW 537 has held that Notice under Section 80 C.P.C is notnecessary for instituting a suit under Section 70 of the Act, seekingfor a decree to set aside the order passed by the Commissioner or DeputyCommissioner, H.R. & C.E., wherein it has been made clear by this Court,that a statutory suit filed under Section 70 of the Act, cannot beequated to a suit filed against a public officer, for which notice underSection 80 C.P.C is a mandatory requirement. As such, provision ofSection 80 C.P.C is not intended to be used as booby traps againstilliterate persons, but are intended to advance justice, as ruled in thedecision reported in AIR 1969 SC 634.12. In the decision, M/s. National Coal Development Corpn Ltd., vs.Union of India, reported in AIR 1988 Patna 338, it has been held byPatna High Court, that the period of notice issued under Section 80C.P.C runs concurrently and therefore, there cannot be any further timeafter 90 days of limitation prescribed under the Act. 13. In the light of the above decisions referred above, I am of theconsidered view that the notice under Section 80 CPC is not mandatoryfor filing a statutory suit under Section 70 of the H.R. & C.E., Act.Even if such notice is sent, that will not extend the period oflimitation prescribed under Section 70 of the H.R., C.E., Act. It is notin dispute that the first respondent, Commissioner, H.R & C.E., Chennaihad passed the order in A.P.18/88 on 02.06.1990. Though the copy wasreceived by the appellant on 02.07.1990, the suit was not filed within90 days, since it was filed only on 09.11.1990. In the aforesaidcircumstances, I could find no error in the finding of the court belowthat the suit was barred by limitation, in view of Section 70 of theH.R. & C.E., Act and I answer the first point for determination in thisappeal against the appellant and in favour of the respondents.14. In the plaint, the appellant / plaintiff has averred that thesuit Mariamman Temple was constructed 150 years ago. There is nodocumentary evidence to establish that the suit temple was constructed https://hcservices.ecourts.gov.in/hcservices/ by the forefathers of the appellant, 150 years ago. The appellant, whowas examined as P.W.1 and other witnesses could not speak about theconstruction of the Mariamman Temple. The appellant has further statedthat his forefathers have done Kumbabishekam, for which except the oraltestimony of the appellant, there is no documentary evidence availableon record. It is a settled proposition of law that the plaintiff, whoclaims the relief has to establish his case. However, there is noevidence available on record to show that the temple was constructed bythe forefathers of the appellant / plaintiff.15. Mr.M.R.Murugesan, learned Special Government Pleader, H.R. &C.E., appearing for the first respondent drew the attention of thisCourt to the evidence of the appellant's witnesses. P.W.2, who wasexamined on the side of the appellant has deposed in his cross-examination that the temple festivals were being performed by all thevillagers. He has further stated that he did not know who constructedthe temple. P.W.4 has admitted that he is a relative of the appellant,however, in his cross-examination, he has admitted that Kumbabishekamand other festivals of the temple were performed along with all thepeople of the village. P.W.5 has stated that the account books relatingto the suit temple are with the village people and the temple functionsand other decisions relating to the temple were being taken by theimportant persons of the village. 16. An Inspector of H.R. & C.E., of the Division was examined asD.W.1. According to him, Natesan Chettiar was only performing the poojasin the temple. As he had no supporting documents to establish that hewas a hereditary trustee of the temple his claim was rejected by thefirst respondent herein. 17. The respondents have stated that one Subramaniya Iyer, a thirdparty has also endowed some properties to the temple, the same was notdisputed by the appellant. As per Ex.A.4, dated 11.08.1938, SubramniyaIyer, S/o Vengappa Iyer, endowed certain property to the MariammanTemple. In the said gift settlement deed, Veerabadhra Chettiar has beenstated as temporary manager and trustee of Sri Mariamman Temple and nota hereditary trustee, as alleged by the appellant. 18. Ex.A.1 is a registered Will, dated13.02.1908, executed by oneMari Chettiyar S/o. Chidambaram Chettiar in favour of his brother's son,Veerabadhara Chettiar. In this document, he has stated that hebequeathed certain properties and pooja right of the Mariamman Temple(Pooja Pathiyam). In the said document, he has also stated about the 64cents of land, dedicated to the temple. The income from the treesavailable in the land could be spent for maintaining the MariammanTempel and the coconut grow on the 64 cents of punja land was leased outunder Exs.A.2 and A.3. https://hcservices.ecourts.gov.in/hcservices/

19. It is seen that Ex.A.5 is the certified copy of the orderpassed by the first respondent. The first respondent has held in thesaid order that V.Natesan Chettiar had filed application under Section63 (b) of the H.R. & C.E., Act to declare him that he was holding theoffice as hereditary trustee of Arulmigu Mariamman Temple, KundalurVillage in Nanilam Taluk, Thanjavur District. Since he died on05.12.1984, by virtue of the registered Will, dated 22.06.1981, executedby the said Natesan Chettiar, the appellant herein was impleaded.However, there is no evidence to establish that the suit temple wasconstructed by the ancestors of the appellant, 150 years ago, as allegedby the appellant. As per the order, it has been held that in the InamFair Register extract (I.F.R), Chidambaram was the forefather of NatesanChettiar, the petitioner in O.A.32/83. The Certified copy of the InamFair Register extract was not produced by the appellant therein.According to Col.14 of the I.F.R, it is stated as a "Sarvamanyam" land.In Col.16 and 17 of I.F.R, it is mentioned as Mariamman Temple atKundalur and its worshipper one "Chittambalam". In Col.11, under theheading, by whom it was granted and in what year, it is stated as notknown and therefore, the first respondent has held in the order, dated02.06.1990 made in A.P.18/1988 that the temple was in existence evenbefore the confirmation of grant. The grandfather of Natesan Chettiarwas said to be Chidambaram Chettiar, though as per the I.F.R, oneChittambalam Chettiar is mentioned as worshipper and as per thedocuments marked only performance of pooja was done by VeerabadhraChettiar, which was bequeathed under a Will and in lieu of that, thelands were being enjoyed by the aforesaid person.20. In the decision, Venkataraman vs. L.A.Thangappa, reported inAIR 1972 Madras 119, this Court has held that there is nothing illegalin the hereditary poojariship and the trusteeship vesting with the sameperson, since the temples therein were small temples, having a meagreincome. As contended by Mr.Srinath Sridevan, learned counsel for theappellant, if there is a small temple, one may be a hereditary trustee,as well as poojari of the temple, for which there is no statutory bar.In the instant case, it is not in dispute that the appellant and hisancestors were performing the poojas, but to consider them as hereditarytrustees of the suit temple, there is no legally acceptable evidence, asheld by the court below. 21. The evidence both oral and documentary available on recordwould clearly show that the appellant has not established that the suittemple had been built up 150 years ago by his forefathers. It has beenestablished that as per Ex.A.4, one Subramaniya Iyer, a stranger hadalso endowed certain properties to the temple. Even the appellant'switnesses have categorically stated that Kumbabishekam and otherfestivals of the temple are being conducted by all the people of thevillage and the account books, relating to the temple are with thevillage people. It has been admitted by the appellant's witnesses thatthe decisions regarding the temple are being taken by the important https://hcservices.ecourts.gov.in/hcservices/ persons of the village. In such circumstances, I am of the view that theappellant is not entitled to declare him as hereditary trustee of thetemple under Section 63 (b) of the H.R. & C.E., Act and answer thesecond point for determination in this appeal against the appellant andin favour of the respondents.22. The appellant has established that his ancestors wereperforming only poojas to the temple. The document marked as Ex.A.4, onthe side of the appellant would clearly show that Subramaniya Iyer, astranger had also made some endowment in favour of the temple. Theevidence of the appellant's witnesses, as discussed earlier would showthat all the village people are collectively performing Kumbabishekamand other festivals of the temple and further, the plea of the appellantthat the temple was constructed 150 years ago by his ancestors has notbeen established by the appellant. In such circumstances, I could findno error or infirmity in the impugned Judgment and Decree, rejecting theclaim of the appellant, to declare him as hereditary trustee of the suittemple. Hence, the appeal fails. 23. In the result, confirming the Judgment and Decree passed by thecourt below, the appeal is dismissed. However, there is no order as tocosts.Sd/Asst. Registrar/true copy/Sub Asst. RegistrartsvnToThe Principal Subordinate JudgeNagapattinam. 1 cc To The Government Pleader, SR.28419.Ss (co)krd / 24.6.08Judgment in A.S.No.847 of 1996