In the High Court of Judicature at Madras Dated: 01/03/2005 Coram The Honourable Mr. Justice S.R.SINGHARAVELU Second Appeal No. 249 of 1994 and Second Appeal No.288 of 1994 Gurumani Vinayagar Temple and Kannanur Mariamman Temple, by its fit Person at Kodikalkuppam Village, Vandipalayam, Cuddalore Taluk ..Appellant in both Appeals -vs- Somu ..Respondent in S.A.249/1994
Selvaraj ..Respondent in S.A.288/1994
Second Appeals filed under Section 100 of Civil Procedure Code against
the common judgment and decrees dated 28.08.1992 in A.S.No.146 and 144 of 1991
respectively on the file of Additional Sub Court, Cuddalore, reversing the
judgment and decree dated 09.04.1991 in O.S.No.890 of 1987 on the file of
Additional District Munsif Court, Cuddalore.
!For Appellant : Ms.P.V.Rajeswari
^For Respondents : Mr.R.Subramanian
:COMMON JUDGMENT
These Second Appeals are directed against the decrees of the
Additional Sub Court, Cuddalore, dated 28.08.1992 in a common judgment in
A.S.144 of 1991 preferred by 1st defendant and A.S.146 of 1991 preferred by
2nd defendant in respect of the decree passed by the Additional District
Munsif, Cuddalore on 09.04.1991 in O.S.890 of 1987.
2. While admitting the Second Appeals, the following substantial
questions of law were framed:
(1) Is not the judgment of the lower Appellate Court hit by the principles of
res judicata based on Exs.A-1 to A-5 ?
(2) Whether the first defendant is estopped from re-opening the point
regarding the title to the suit properties once again ?
(3) Whether the lower Appellate Court committed an error of law in reversing
the well considered judgment of the trial Court on unsustainable grounds ?
3. The suit was filed by the appellant/plaintiff for recovery of
possession of the suit properties consisting of five items of lands situate at
Kodikalkuppam Village within Cuddalore Municipality limits.
4. There were earlier proceedings regarding the suit properties.
Regarding the said properties, there was an endowment created under a Will.
That Will was executed by one Rathnam Pillai on 25.07.1903. That endowment
created certain obligations to be performed in favour of the idol of the
plaintiff temple and the right of management was vested with the heirs of the
said Rathnam Pillai.
5. Somasundaram Pillai, the son of Rathinam Pillai had filed a suit
in O.S.92 of 1961 claiming hereditary trustee of the appellant temple. In
that suit, this Will dated 25.07.1903 by Rathnam Pillai was marked with
consent of the Commissioner of HR & CE, who was also a party in that suit, as
Ex.A-2 and the Division Bench of this Court, while dealing with the appeal
preferred by Somasundaram Pillai in Appeal No.297 of 1963, the copy of the
judgment of which was marked as Ex.B-1 , made the following observation;
“We may also add that the fact the plaintiff’s claim to the hereditary
trusteeship of the temples has been negatived, does not affect his right to be
the trustee of the endowment. Under the powers conferred by the document
Exhibit A-2, the plaintiff will be entitled to be in possession and management
of the properties and utilise the income of the properties as specified in
Exhibit A-2”.
Anyway Somasundaram Pillai could not succeed in his claim for hereditary
trusteeship.
6. Somasundaram Pillai again filed a suit in O.S.2357 of 1981 for
declaration of his title and for permanent injunction in respect of the same
properties. In that suit also, the Will was a subject matter and an issue was
also framed and it was held that the Will has not been proved; the appeal
proceedings were all dismissed. The connected documents were marked as
Exs.A-1 to A-5.
7. Counsel for the appellant / plaintiff contended that the findings
in O.S.2357 of 1981 will operate as res judicata against the 1st defendant,
who is none else than the son of Somasundaram Pillai. True it is that
properties are the same in both this suit as well as in O.S.2357 of 1981.
Although the parties are not exactly the same inasmuch as Commissioner was the
party to the earlier proceedings representing the interest of the plaintiff
temple and since Selvaraj is none but the son of Somasundaram Pillai, who was
actually agitating against this plaintiff temple, we can hold that the parties
are also same.
8. Counsel also relied upon the decision reported in C.V.RAJENDRAN
AND ANOTHER ..vs..N.M.MUHAMMED KUNHI (2002 (5) CTC 612), wherein it was
mentioned that
“principle of res judicata applies as between two stages in same litigation so
that if issue had been decided at earlier stage against party, it cannot be
allowed to be re-agitated by him at subsequent stage in same suit or
proceedings”.
By relying upon the same, it has been submitted that the present 1st
respondent Selvaraj, who is none but the son of Somasundaram Pillai and who
claims under Somasundaram Pillai, cannot be allowed to reagitate the issue,
that was finally decided in O.S.2357 of 1981. This argument will be
acceptable only if it is found that the issue in that suit is the same as that
in the present proceedings.
9. Here, we are not concerned about the ownership of suit lands as to
whether it vests with the appellant / plaintiff temple or otherwise. True it
is that the claim of predecessor of 1st defendant namely, Somasundaram Pillai,
for exclusive right and title in suit properties made in the earlier suit in
O.S.2357 of 1981 was dismissed. But the said Selvaraj, the respondent / 1st
defendant resists this case not upon the basis of his title to the suit
properties, but he resists by contending that the heirs of Rathnam Pillai, the
testator of the Will of the year 1903, has got a right of possession and right
of management over the suit properties. This has been fortified by the Will,
which has been marked before the first appellate court as Ex.B-4.
10. It is worth-mentioning that there is an observation by the
Division Bench of this Court in A.S.297 of 1963 by relying upon the present
Ex.B-4 Will, which was marked as Ex.A-2 in that proceedings and that the same
was marked by consent and according to their observation, Somasundaram Pillai,
the father of present respondent/1st defendant had right to be in possession
and management of the suit properties, which were endowed by Rathnam Pillai
under hi s Will of 1903 with the specific directions that the said obligations
should be performed by his heirs towards idol of the appellant/ plaintiff
temple.
11. It is this right of management of the appellant/ plaintiff can as
well be recognised, despite the applicability or nonapplicability of Section
11 C.P.C. In this connection, the position of law has been laid as follows in
K.M.Rathinam Nadar and another ..vs.. Arulmigu Hanumantharayar Bhajanai Madam
@ Hanumar Kovil rep.by its hereditary trustee Tmt.L.Padmavathiammal (1996 TLNJ
131 at page 138).
The above judgment of the Supreme Court places the matter beyond doubt. Even
if the judgment of this Court in the prior proceedings cannot be treated as a
judgment in rem, it can certainly be treated as a precedent inasmuch as it
decides the character of a temple. It should be noticed that the question
whether a temple is a private or a public one is essentially between the
persons who claim it to be private temple and the Hindus Religious and
Charitable Endowments Department. Once as between hem the said question has
been decided one way or other, that should be treated as a precedent in a
subsequent case if the question arises between some third parties and one of
the parties to the earlier proceeding”.
12. Thus it is made clear that respondent / 1st defendant has got a
right of management and right of possession and that is why he has been issued
with patta under Ex.B-2 in 1970 and he had also entered into tenancy with 2nd
defendant under Ex.B-3. Unless the appellant/ plaintiff shows a better title,
the appellant may not be entitled for recovery of possession.
13. As mentioned supra, the issue in first round of litigation in
O.S.92 of 1961 was that of the hereditary trusteeship of Somasundaram Pillai.
The issue in the second round of litigation in O.S.2357 of 1 981 was in
respect of the exclusive right and title of Somasundaram Pillai who is none
but the father of the respondent / 1st defendant. But the issue in this suit
is the plaintiff’s title on the suit land in one side and the right to be in
possession of the respondents / defendants in the suit land. When it has been
established that the respondents do have such a right of possession and when
it was found that there was no better right clothed upon the appellant /
plaintiff, the latter should be non-suited. Thus, the questions of law are
answered against the appellant / plaintiff.
14. Second Appeals are dismissed and the judgment and decree of the
first appellate Court are confirmed. No costs.
Index: Yes.
Internet: Yes.
gl
To
1) The Additional Subordinate Judge,
Cuddalore.
2) The Additional District Munsif,
Cuddalore.
Copy to:
The Record Keeper,
V.R.Section,
High Court,Madras.