REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO OF 2009
ARISING OUT OF S.L.P. (C) NO. 20197/2006
G. JAYALAKSHMI & ORS. ... APPELLANTS
VERSUS
ARULMIGHU PAZKHIKANCHIYA
VINAYAGAR & ITS TEMPLE ... RESPONDENTS
JUDGMENT
S.B. SINHA, J.
1. Some of the defendants in the original suit, who purchased the suit
property from the defendant Nos. 1-3, are before us questioning the
judgment and order dated 25.4.1996 passed by a learned single Judge of the
High Court in Appeal Suit No.396/2000 whereby and whereunder judgment
and decree dated 12.07.2000 passed by the learned Subordinate Judge,
Sivakasi in O.S. No.242 of 1999 was set aside.
2. Inter se relationship between the plaintiffs and the predecessor-in-
interest of the original defendant Nos. 1-3 is not in dispute. It would appear
from the following genealogical tree:
Muthuswamy Othuwar
Seeni Othuwar Gnana Othuwar
Muthuswamy Othuwar Kulanthaively OthuwarSeenia Pillai Gnanam Pillai Mariappa Pillai Shanmugam Pillai
Muthuramalingam PillaiRanthinam Ammal Gomathi Muniasamy Panchavarnam Visalakshi
(1st Plaintiff) th
(4 Defendant) nd rd
2 Plaintiff 3 PlaintiffRavindran Aathi Naryaanan Sreenivasan
st
1 Defendant 2nd Defendant 3rd Defendant
3. In 1963, one S. Muthuramalingam Pillai filed an application before
the Deputy Commissioner, Hindu Religious and Charitable Endowment
(Administration) Department, Madurai for declaring Sri Pazhikanjia
Vinayagar Temple, Sivakasi is not a religious and charitable endowment
within the meaning of the Madras Hindu Religious and Charitable
Endowments Act, 1959 (for short `the 1959 Act’) and that he is the
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hereditary trustee of the temple. Shri K. T. T. Ramalingam Chettiar was
impleaded as respondent in the application.
4. The learned Deputy Commissioner framed the following issues:
“(1) Whether the suit institution is not a religious
institution?
(2) Whether the petitioner is the hereditary trustee of
the suit temple?
(3) To what relief is the petitioner entitled?”
5. On the basis of the materials brought on record by the parties to the
said proceeding, it was held: –
“I therefore find that the suit institution is not a
religious institution falling within the scope of the act. I
find on issue No.1 accordingly.
Item No.2: In view of the finding on Issue NO.1
it is not necessary to determine whether the petitioner is
the hereditary trustee of the institution, as such this issue
does not arise. I find accordingly on issue No.2.
Item No. 3: In view of the finding on issue No.1 it
is declared that Sri Pazhikanjia Vinayagar temple is not a
religious institution falling within the scope of the Act.”
6. Feeling aggrieved by the afore-mentioned order, Shri K.T.T.
Ramalingam Chettiar preferred an appeal before the Commissioner, which
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was marked as Appeal No.49/1965. By an order dated 13.12.1960, the
Commissioner upheld the order of the Deputy Commissioner stating: –
“On a careful consideration of the entire evidence
placed in this case, I am satisfied that the Deputy
Commissioner has gone in great detail of the entire
evidence placed in the matter and that he has come to the
correct conclusion that the temple in question is a private
temple of the respondent and his forefathers and that the
claim of the appellant that it is a `temple’ as defined in
Section 6(20) of the Act is unsustainable, but that it is not
a `religious institution’ falling within the scope of
Section 6(18) of the Act. I am, therefore, of the view that
this appeal should fail and consequently, the same is
dismissed.”
7. Thereafter, Shri K.T.T. Ramalingam Chettiar filed a suit in the Court
of Subordinate Judge, Ramanathapuram in terms of Section 70 of the 1959
Act for grant of a declaration that the temple was a public temple and not a
private one. Shri S. Muthuramalingam Pillai also filed a suit for recovery of
possession of certain properties and damages against K.T.T. Ramalingam
Chettiar which was marked as O.S. No.124/1969.
Having regard to the pleadings of the parties, the learned trial Judge
framed the following two sets of issues: –
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“SET 1:
1. Whether the plaint mentioned temple is a public
temple as denied in Madras Act 25 of 1959?
2. Whether the order in OA 37 of 1963 on the file of the
Deputy Commissioner, HR & CE, Madurai and AP
No.49 of 1965 are liable to be set aside?
3. To what relief is the Plaintiff entitled?
SET 2:
1. Whether the Plaintiffs are entitled to possession of the
suit properties?
2. Whether the Plaintiffs are entitled to any damages?
3. If so, what is the quantum?
4. Whether the Plaintiffs are estopped from setting up
title to the suit property?
5. Whether the Court has no jurisdiction to try the suit?
6. Whether the temple is a private one or a public one?
7. Whether the court fee paid is correct?
8. Whether the suit is barred by limitation?
9. Whether the suit is not maintainable?
10.To what relief if any, are the plaintiffs entitled?”
8. The suit filed by K.T.T. Ramalingam Chettiar was decreed by the
Trial Court and it was declared that the temple in question is a public
temple. Simultaneously, the suit filed by Muthuramalingam Pillai was
dismissed and it was held that the plaintiff in that suit was not entitled to a
decree of possession. The heirs and legal representatives of Shri
Muthuramalingam, aggrieved thereby filed two appeals, which were
dismissed by a learned Single Judge of the High Court on 4.10.1991. Letters
Patent Appeals filed by them were dismissed by the Division Bench and the
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judgment and order of the Division Bench was affirmed by this Court by
dismissing the SLP.
9. After about 6 years of the dismissal of the letters patent appeals,
Rathinammal and two others filed a petition under Section 63(b) of the 1959
Act for being declared as the hereditary trustees of the temple. That
application is said to be still pending. During the pendency of that
application, Rathinammal and two others filed a suit in the name of the
temple for declaring that properties mentioned in the suit schedule belong to
the temple. They also prayed for grant of a decree of permanent injunction
to restrain defendant Nos. 1-4 and their successors/agents from selling or
alienating the suit property. The learned Subordinate Judge by a very
detailed judgment dated 12.7.2000 dismissed the said suit inter alia holding:-
(i) that the suit properties were not involved in the earlier
round litigation;
(ii) the plaintiff is bound by the admission made by P.W. 1,
one of the plaintiffs, that the properties in suit had been
mentioned in the deed of partition dated 1917.
10. On an appeal preferred by the plaintiffs, the High Court reversed the
said judgment and decree of the Trial Court.
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The High Court rested its conclusion principally on the observations
made in the earlier litigation that the temple and its properties are public in
character. The High Court also relied upon the admission made by D.W. 1
in his statement before the Court that his grandfather had no right, title or
interest over the suit properties.
11. Before us, the learned counsel for the parties have made elaborate
submissions. We have been taken through various documents referred to in
the judgments of the trial court, the High Court as also the judgments
rendered in the earlier round of litigation.
12. However, some of the basic documents including the deed of partition
and the pleadings of the two suits filed by K.T.T. Ramalingam Chettiar and
S. Muthuramalingam Pillai have not been produced so as to enable us to
arrive at a definite conclusion inter alia with regard to the identity of the suit
properties.
13. A temple may be declared as a public temple inter alia when a grant is
made in favour of the public by the owner of the property although the
temple is constructed by a private person, or if the temple is constructed on
government land; and if the public in general have a right of worship the
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deity as contra-distinguished from the right of worship in a temple which is
confined to a family or a community. If the suit properties had been the
subject matter of partition and if the same had nothing to do with the temple
in question it would be one thing; however, it will be a different thing if the
temple and the suit properties in and around the same had all along been
treated as temple properties.
14. Mr. Mohan, learned counsel appearing for the appellants herein has
taken great pains before us to show that the suit property (shops) were in
exclusive possession of Muniaswamy and he alone was realizing rent
therefrom, though he had not been able to participate in the management of
the temple because he had been working elsewhere. It was, furthermore,
contended that even the property tax in respect of the shops in question used
to be paid by Muniaswami.
15. On the other hand, the contention of Mr. Padmanabhan, the learned
senior counsel, is that the property tax used to be paid by the temple itself
through the Hakdar namely the manager of the temple.
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16. Mr. Prabhakar, learned counsel appearing for some of the
respondents, informed us that the nature of the said properties were
described as “natham” namely `village site’.
17. It is, therefore, evident that the nature of the property in respect of the
temple as also the suit properties are different.
18. In our view, one of the questions which should have been posed and
answered by the High Court is as to whether like the land on which the
temple was constructed, the suit properties were also situated on any public
land or not. The High Court should have also gone into other aspects of the
matter in the backdrop of documents produced by the parties and should not
have disposed of the appeal simply by relying upon some observations made
with regard to temple properties in the earlier round of litigation by the
courts.
A finding of fact was required to be arrived at upon consideration of
the pleadings of the parties and the documents produced by them, for the
purpose of ascertaining the identification of land as well as the nature and
character thereof.
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19. It has been contended before us by the learned counsel for the
respondents that there are a large number of documents to show that the
properties belong to the temple. As against this, learned counsel for the
appellants pointed out that there are large number of documents to show that
Muniaswami was realizing the rent.
20. We would have ourselves undertaken the exercise but we are not in a
position to do so as most of the documents including the deed of partition,
patta and other original documents are not before us.
21. We, therefore, set aside the impugned judgment and remand the
matter to the High Court for consideration of the matter afresh.
We request the High Court to consider the desirability of disposing of
the matter as expeditiously as possible.
22. The appeal is disposed of in the aforesaid terms.
……………………………….J
[S. B. SINHA]
……………………………….J
[G.S. SINGHVI]
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……………………………….J
[DEEPAK VERMA]
New Delhi
July 28, 2009.
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