BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/08/2008 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN Second Appeal No.765 of 2008 M.K.Gulam Rasul .. Appellant Vs. A/M.Dharmaraja alias Dhrowapathi Amman Temple, rep. by its Secretary, Ayyampettai, Thanjavur. .. Respondent Appeal filed under Section 100 C.P.C. against the decree and judgment passed in A.S. No.64/2007 on the file of Additional Sub Court, Thanjavur dated 13.11.2007 reversing the decree and judgment passed in O.S. No.68/2006 on the file of District Munsif Court, Thiruvaiyaru dated 23.04.2007. !For Appellant ... Mr.V.K.Vijayaraghavan ^For Respondent ... Mr.V.Chandrasekar :JUDGMENT
This appeal is directed against the decree and judgment passed in A.S.
No.64/2007 on the file of Additional Sub Court, Thanjavur dated 13.11.2007
reversing the decree and judgment passed in O.S. No.68/2006 on the file of
District Munsif Court, Thiruvaiyaru dated 23.04.2007, raising the following
substantial questions of law:-
“a) When the Executive Officer of A/M.Dhrowapathi Amman Temple has no power to
file suit for recovery of possession in respect of A/M.Dharmaraja Temple’s
property whether the decree and judgment of lower appellate court is correct in
law?
b) When the respondent had not pressed the earlier suit against the appellant
for the same relief in O.S. No.251/2004 in respect of same property without the
permission of court to file fresh suit on the same cause of action whether the
decree and judgment of lower appellate court are liable to be reversed for not
considering the same?
c) Whether the decree and judgment of lower appellate court are liable to be
reversed for not framing proper points for consideration?
d) Whether the decree and judgment of lower appellate court are liable to be
reversed for not considering the relevant evidence on record?”
2. The appellant is the defendant and the respondent is the plaintiff
before the Trial Court.
3. The plaintiff has filed a suit in O.S. No.68 of 2006 on the file of
District Munsif Court, Thiruvaiyaru praying for a direction to the defendant to
hand over vacant possession after removing the super structure within the time
fixed by this Court; to pay Rs.16,000/- towards arrears of rent and also to pay
damages and use and occupation.
4. Before the Trial Court, P.W.1 and D.W.1 were examined and Ex.A1 to A11
and Ex.B1 to B6 were marked.
5. On consideration of the materials and evidence on record, the Trial
Court dismissed the suit.
6. Challenging the judgment of the Trial Court, an appeal was preferred in
A.S. No.64/2007 on the file of Additional Sub Court, Thanjavur. The Appellate
Court allowed the appeal.
7. Challenging the judgment of the Appellate Court, the present Second
Appeal has been filed by the appellant.
8. Heard the learned counsel on either side.
9. It was argued before the Trial Court that the plaintiff, who is an
Executive Officer of the Arulmighu Dharmaraja @ Dhrowapathi Amman Temple, has no
power to file a suit for recovery of possession. So, the competency and
capacity of the Executive Officer was questioned. The suit property belongs to
the plaintiff’s temple, Arulmighu Dharmaraja Temple. Learned counsel for the
appellant argued that notice was sent by the Executive Officer of the Temple
under Ex.A4. Ex.A5 is the reply notice sent by the defendant’s counsel to the
plaintiff’s counsel. The appellant has admitted in that notice that the suit
property belongs to Arulmighu Dharmaraja Temple and his father was a tenant.
So, the appellant is the tenant under Arulmighu Dharmaraja Temple. But the
counsel for the appellant argued that the suit was filed by Arulmighu Dharmaraja
@ Dhrowapathi Amman Temple by the Thakkar / Executive Officer of the said
Temple. The counsel further submitted that there is no temple by name Arulmighu
Dharmaraja @ Dhrowapathi Amman Temple.
10. P.W.1 spoke that, in the Revenue Records, there was an entry in
respect of Dharmaraja Temple and it was called as Dhrowapathi Amman Temple also.
Ex.A2 is the Chitta given by the Assistant Tahsildar of Papanasam, which would
show that Dharmaraja Temple has got the property. Even in Ex.A4-notice sent by
the plaintiff’s counsel to the defendant, it is averred that the temple is
called Arulmighu Dharmaraja @ Dhrowapathi Amman Temple, which has been replied
under Ex.A5.
11. The question is whether the temple is Arulmighu Dharmaraja Temple or
Arulmighu Dharmaraja @ Dhrowapathi Amman Temple.
12. Ex.A1 is the Proceedings issued by the Joint Commissioner of HR & CE,
Thanjavur, dated 08.04.1997. Even in Ex.A1, the name of the temple was referred
as Arulmighu Dharmaraja @ Dhrowapathi Amman Temple only. Ex.A1 was issued long
time prior to the dispute in the year 1997. Learned counsel for the appellant
relied on Page-4 of Ex.A1 and submitted that the Proceedings was addressed to
the trustee, Dhrowapathi Amman Temple, Ayyampettai and not Arulmighu Dharmaraja
@ Dhrowapathi Amman Temple. It was stated by P.W.1 that both Arulmighu
Dharmaraja Temple and Dhrowapathi Amman Temple are one and the same and
Dharmaraja is the deity of the temple in Moolasthanam and the Goddess is known
as Dhrowapathi Amman. Usually temples are called either by the name of the God
or Goddess, but it will not change the nature of the temple. Even in Madurai,
the temple is called as Arulmighu Meenakshi Amman Temple in which Sundareswarar
is the deity. Merely calling the temple as Meenakshi Amman Temple would not mean
that there is no deity by name Sundareswarar. In the same way, Arulmighu
Dharmaraja Temple can be called as Dharmaraja Temple or Dhrowapathi Amman
Temple. There is no motive for the Joint Commissioner to give a false
statement. Hence it is clear that the temple is called Arulmighu Dharmaraja @
Dhrowapathi Amman Temple. Merely because the copy of the Proceedings was issued
by the Joint Commissioner to the trustee’s address mentioning Arulmighu
Dhrowapathi Amman Temple, the nature of the temple cannot be altered. It is true
that an earlier suit was filed under the name Arulmighu Dhrowapathi Amman Temple
and the same was dismissed. But that will not be a bar to say that the name of
the temple is Arulmighu Dharmaraja @ Dhrowapathi Amman Temple. Hence it is
established that the temple is called Arulmighu Dharmaraja @ Dhrowapathi Amman
Temple.
13. Learned counsel for the appellant claimed that the erstwhile trustee
mortgaged the suit property in favour of him under Ex.B1. Except Ex.B1, there is
no evidence to show that this suit property was mortgaged by the erstwhile
trustee in favour of the vendor of the defendant. The trustee cannot mortgage
the property of the temple of his own. Even D.W.1 admitted that the property
belongs to Arulmighu Dharmaraja Temple and his father was a tenant. In the
chief examination, he stated that the property belongs to Dharmaraja Temple and
in the cross examination he denied the case of the plaintiff. Ex.A3 is the
letter sent by the appellant to the Executive Officer of the plaintiff enclosing
a Demand Draft for Rs.550/- towards rent. So, he admitted the tenancy. Having
admitted the tenancy, it is not for him now to state that the plaintiff is not a
landlord. Further, Ex.B5 and B6 would show that the appellant paid rent to the
temple. Ex.B3 is the letter sent by Goodyear India Limited to M/s.Bawa Cycle
Mart. This will not be helpful to the appellant to improve his case. Further
Ex.B2-Notice for Property Tax and Ex.B4-Demand Notice for House Tax, were issued
for Salai Street and this property is not situated in Salai Street. So, it will
not strengthen the case of the appellant. Therefore, the appellant is the
tenant of the suit property and he is liable to pay the rent. The claim of the
defendant that Dharmaraja temple and Dhrowapathi Amman Temple are different,
falls to the ground.
14. The counsel for the appellant questioned the status of the Executive
Officer to file the suit. For this, he relied on the decisions of this Court in
the case of Sri Arthanareeswarar of Tiruchengode v. T.M.Muthuswamy Padayachi,
etc. & others, 2003-1-L.W.386 and in the case of Dayalu Naidu v. A/m
Arunachaleswarar Thirukoil, etc., 2007-4-L.W.376 and argued that the Executive
Officer must be empowered by the Commissioner to institute a suit and in the
absence of authorisation, the Executive Officer cannot institute the suit. No
doubt, the principles laid down in the above judgments of this Court are not in
dispute. But, in the present case, it is clear from Ex.A1 that the Joint
Commissioner has removed the erstwhile trustee and the Executive Officer was
appointed as Thakkar, the fit person. For this, the learned counsel for the
appellant relied on Section 101 of the Tamil Nadu Hindu Religious & Charitable
Endowments Act, 1959 which deals with putting Trustee or Executive Officer in
possession. Absolutely there is no evidence on record to show that the erstwhile
trustee resisted the order of the Joint Commissioner and the temple property was
not handed over to the Executive Officer. Furthermore, under Ex.A3, the
appellant sent a letter to the Executive Officer enclosing a Demand Draft for
Rs.550/- towards rent. Further, Ex.B5 and B6 would show that the appellant paid
rent to the temple. This all would go to show that the Executive Officer is
empowered to look after the temple.
15. Now we have to find out whether the Executive Officer is entitled to
file a suit. In 2003-1-L.W.386 (supra), this Court, in Paragraph-50 held that
the Board of Trustees or the Fit Person are the competent people to initiate
legal proceedings. As per the decision of the above Division Bench Judgment of
this Court, the Executive Officer of this temple is entitled to initiate legal
proceedings. In the present case, the Executive Officer was appointed as Thakkar
under Ex.A1 by the Joint Commissioner. So, in the light of the above Division
Bench judgment of this Court, the Executive Officer of the temple is entitled to
file a suit. Hence the statement of the appellant that the Executive Officer is
not entitled to file the suit is not correct. The plaintiff is entitled to file
the suit. The suit is in order. The defendant has not paid the rent and hence
he must surrender possession.
16. In view of the reasons stated above, the respondent / plaintiff has
proved the case. Therefore, the case of the appellant is bound to fail.
Accordingly, no substantial questions of law arise for consideration of this
Court and hence the judgment of the Appellate Court is confirmed and the Second
Appeal is dismissed. Consequently, M.P.(MD)No.1 of 2008 is closed. No costs.
km
To
1.The Additional Subordinate Judge,
Thanjavur.
2.The District Munsif,
Thiruvaiyaru.