{"id":349,"date":"2010-11-29T00:00:00","date_gmt":"2010-11-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chockalingam-now-died-vs-nambi-pandiyan-on-29-november-2010"},"modified":"2017-02-03T11:58:27","modified_gmt":"2017-02-03T06:28:27","slug":"chockalingam-now-died-vs-nambi-pandiyan-on-29-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chockalingam-now-died-vs-nambi-pandiyan-on-29-november-2010","title":{"rendered":"Chockalingam (Now Died) vs Nambi Pandiyan on 29 November, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Chockalingam (Now Died) vs Nambi Pandiyan on 29 November, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 29\/11\/2010\n\nCORAM\nTHE HONOURABLE MS.JUSTICE R.MALA\n\nS.A.(MD).No.1075 of 2009\nand\nS.A.(MD).No.176 of 2010\nand\nS.A.(MD).No.646 of 2010\nand\nS.A.S.R.(MD).No.16491 of 2010\nand\nM.P.(MD).No.1 of 2010 in S.A.S.R.(MD).16491 of 2010\nand\nM.P.(MD).Nos.1 of 2009 & 1 of 2010 in S.A.(MD).1075 of 2009\n----\n<\/pre>\n
Chockalingam (now died),
\nSundara Subramanian
\n(for themselves and as
\nrepresentatives of Saivaites)                 .. Appellant in S.A.(MD).No.1075 of 2009<\/p>\n
Vs<\/p>\n
1. Nambi Pandiyan\n<\/p>\n
2. Vellappandian\n<\/p>\n
3. Nallamuthu\n<\/p>\n
4. Thirukurungudi Jeeyar Mutt,
\n   through its Jeeyer Swamigal,
\n   Thirukurungudi, Nanguneri Taluk.\n<\/p>\n
5. The Deputy Commissioner,
\n   H.R. & C.E., Nungambakkam, Chennai.\n<\/p>\n
6. The Joint Commissioner,
\n   H.R. & C.E., Tirunelveli,
\n   Thiruvanandapuram Road,
\n   Palayamkottai, Tirunelveli.\n<\/p>\n
7. The State of Tamil Nadu,
\n   through its District Collector,
\n   Kokkirakulam, Tirunelveli-9.\n<\/p>\n
8. Divya Desa Paramparia Padukappu Peravai,
\n   Trichirapalli,
\n   through its Secretary, Sri Krishnamachari,
\n     S\/o Anandachari, 214, Keela Uthira Theru,
\n     Thirunagar, Madurai-6.\n<\/p>\n
9.  Hindu Bakta Jana Sabai State Committee,
\n     through State President Thiyagarajan,
\n      S\/o Vadivel Thevar,
\n     No.5, Joseph Nagar, 1st Cross Street,
\n     Tirunagar, Madurai-6.\n<\/p>\n
\t\t\t\t.. Respondents in S.A.(MD).No.1075 of 2009<\/p>\n
Divya Desa Paramparia Padukappu Peravai,
\nTrichirapalli,through its Secretary,
\nSri Krishnamachari, S\/o Anandachari,
\n214, Keela Uthira Theru,
\nThirunagar, Madurai-6.\n<\/p>\n
\t\t\t        .. Appellant in S.A.(MD).No.176 of 2010<\/p>\n
Vs<\/p>\n
1. Nambi Pandiyan\n<\/p>\n
2. Vellappandian\n<\/p>\n
3. Nallamuthu\n<\/p>\n
4. Thirukurungudi Jeeyar Mutt,
\n   through its Jeeyer Swamigal,
\n   Thirukurungudi, Nanguneri Taluk.\n<\/p>\n
5. The Deputy Commissioner,
\n   H.R. & C.E., Nungambakkam, Chennai.\n<\/p>\n
6. The Joint Commissioner,
\n   H.R. & C.E., Tirunelveli,
\n   Thiruvanandapuram Road,
\n   Palayamkottai, Tirunelveli.\n<\/p>\n
7. The State of Tamil Nadu,
\n   through its District Collector,
\n   Kokkirakulam, Tirunelveli-9.\n<\/p>\n
8. Hindu Bakta Jana Sabai State Committee,
\n   through State President Thiyagarajan,
\n    S\/o Vadivel Thevar,
\n   No.5, Joseph Nagar, 1st Cross Street,
\n   Tirunagar, Madurai-6.\n<\/p>\n
Chockalingam (now died)\n<\/p>\n
9. Sundara Subramanian
\n(ninth respondent for himself and
\nas the representative of people
\nbelonging to Saivaist)
\n\t\t\t       .. Respondents in S.A.(MD).No.176 of 2010<\/p>\n
Hindu Bakta Jana Sabai State Committee,
\nthrough State President Thiyagarajan,
\nS\/o Vadivel Thevar,
\nNo.5, Joseph Nagar, 1st Cross Street,
\nMadurai-6.\n<\/p>\n
\t\t\t       .. Appellant in S.A.(MD).No.646 of 2010<\/p>\n
Vs<\/p>\n
1. Nambi Pandiyan\n<\/p>\n
2. Vellappandian\n<\/p>\n
3. Nallamuthu<\/p>\n
4. Thirukkurungudi Jeeyar Mutt,
\n   through its Jeeyer Swamigal,
\n   Thirukkurungudi, Nanguneri Taluk.\n<\/p>\n
5. The Deputy Commissioner,
\n   H.R. & C.E., Nungambakkam, Chennai.\n<\/p>\n
6. The Joint Commissioner,
\n   H.R. & C.E., Tirunelveli,
\n   Thiruvanandapuram Road,
\n   Palayamkottai, Tirunelveli.\n<\/p>\n
7. The State of Tamil Nadu,
\n   through its District Collector,
\n   Kokkirakulam, Tirunelveli-9.\n<\/p>\n
8. Divya Desa Paramparia Padukappu Peravai,
\n   Trichirapalli,
\n   through its Secretary, Sri Krishnamachari,
\n     S\/o Anandachari, 214, Keela Uthira Theru,
\n   Thirunagar, Madurai-6.\n<\/p>\n
Chockalingam (now died)<\/p>\n
9. Sundara Subramanian<\/p>\n
(for members and as the
\nrepresentative of people
\nbelonging to Saivasangam)
\n.. Respondents in S.A.(MD).No.646 of 2010<\/p>\n
1. Vallimanalan\n<\/p>\n
2. P.Vadivazhagia Nambi
\n          \t\t .. Appellants in S.A.S.R.(MD).No.16491 of 2010
\nVs<\/p>\n
Chockalingam (now died)<\/p>\n
1. Sundara Subramanian
\n(for members and as the
\nrepresentative of people belonging to
\nSaivasangam)<\/p>\n
2. Nambi Pandiyan\n<\/p>\n
3. Vellappandian\n<\/p>\n
4. Nallamuthu\n<\/p>\n
5. Thirukkurungudi Jeeyar Mutt,
\n   through its Jeeyer Swamigal,
\n   Thirukkurungudi, Nanguneri Taluk.\n<\/p>\n
6. The Deputy Commissioner,
\n   H.R. & C.E., Nungambakkam, Chennai.\n<\/p>\n
7. The Joint Commissioner,
\n   H.R. & C.E., Tirunelveli,
\n   Thiruvanandapuram Road,
\n   Palayamkottai, Tirunelveli.\n<\/p>\n
8. The State of Tamil Nadu,
\n   through its District Collector,
\n   Kokkirakulam, Tirunelveli-9.\n<\/p>\n
9. Divya Desa Paramparia Padukappu Peravai,
\n   Trichirapalli,
\n   through its Secretary, Sri Krishnamachari,
\n     S\/o Anandachari, 214, Keela Uthira Theru,
\n   Thirunagar, Madurai-6.\n<\/p>\n
10. Hindu Bakta Jana Sabai State Committee,
\n      through State President Thiyagarajan,
\n      S\/o Vadivel Thevar,
\n       No.5, Joseph Nagar, 1st Cross Street, Madurai-6.\n<\/p>\n
\t\t\t.. Respondents in S.A.S.R.(MD).No.16491 of 2010<\/p>\n
Second Appeals against the judgment and decree dated 14.10.2009 in A.S.Nos.29,
\n37 and 63 of 2007 on the file of the Subordinate Judge’s Court, Valliyoor,
\nagainst the judgment and decree dated 14.3.2006 in O.S.No.288 of 2004 on the
\nfile of the Additional District Munsif Court, Nanguneri.<\/p>\n
\n\n!For appellants\nS.A.(MD).No.1075 of 2009  ... Mr.M.Vallinayagam\nSA.(MD).No.176 of 2010    ... Prof.M.Krishna\n<\/pre>\n
S.A.(MD).No.646 of 2010   … Mr.V.Selvaraj  for Mr.N.Dilipkumar
\nS.A.(SR).No.16491 of 2010 … Mr.R.Vijayakumar<\/p>\n
^For respondents in S.A.(MD).Nos.1075 of 2009 and 176 and 646 of 2010:\n<\/p>\n
Mr.R.Shanmugasundaram, Senior Counsel for
\nM\/s.K.Azhaguraman, K.Govindarajan, S.Ravi for RR-1 to 3
\nMr.T.R.Rajagopalan, Senior Counsel and Mr.Chandrasekaran, for
\nM\/s.N.Krishnaveni & P.Thiagarajan for R-4
\nMr.K.M.Vijaya Kumar, Spl.G.P. for RR-5 to 7
\nProf.M.Krishna for R-8 in S.A.(MD).Nos.1075 of 2009 and 646 of 2010
\nMr.V.Selvaraj for Mr.N.Dilipkumar for R-8 in S.A.(MD).No.176 of 2010
\nand for R-9 in S.A.(MD).No.1075 of 2009
\nMr.M.Vallinayagam for R-9 in S.A.(MD).Nos.176 and 646 of 2010<\/p>\n
:COMMON JUDGMENT<\/p>\n
\tAs all the Second Appeals arise out of the judgment and decree passed in
\nO.S.No.288 of 2004 on the file of the Additional District Munsif Court,
\nNanguneri, they are taken up and disposed of by this common judgment.\n<\/p>\n
\t2. For the purpose of convenience, the parties are referred to as they are
\noriginally ranked in the Original Suit No.288 of 2004 on the file of the
\nAdditional District Munsif Court, Nanguneri.\n<\/p>\n
\t3. All the Second Appeals arise out of the judgment and decree dated
\n14.10.2009 in A.S.Nos.29, 37 and 63 of 2007 on the file of the Subordinate
\nJudge’s Court, Valliyoor, reversing the judgment and decree dated 14.3.2006 in
\nO.S.No.288 of 2004 on the file of the Additional District Munsif Court,
\nNanguneri.\n<\/p>\n
\t4. The averments in the plaint filed by the plaintiffs–Chockalingam,
\nSundarasubramanian, in O.S.No.288 of 2004, are as follows:\n<\/p>\n
\t(a) Thirukurungudi Azhagiya Nambirayar Temple is one of 108 “Divya Desams”
\n(108 Sacred Vaishnavaite Shrine Temples),  where Vaishnavaite Deities
\n(Vishnu\/Perumal) is there in different postures, namely, Standing Posture,
\nSitting Posture and Sayanam, and all these three Postures of God Vishnu are in
\nthree Idols\/Garbagraham, namely Sanctum Sanctorum and the Gods were named as
\nLord  Nindra Nambi, Lord Veetririnda Nambi and Lord Pallikonda Nambi.\n<\/p>\n
\t(b) In front of the Lord Veetririnda Nambi, there is one Lord Siva
\nSannathi (Lingam) called Lord Mahendragirinathar, which had been existence from
\ntime immemorial, as is evidenced by the recitals\/Pasurams rendered by
\nThirumangai Azhwar.\n<\/p>\n
\t(c) Even though both Saivaites and Vaishnavaites were different Hindu
\nreligious Sects, but in this Thirukurungudi Temple, both Saivaite and
\nVaishavaite are offering worship to both Deities. It is common in Vaishnavaite
\nthat Saivaite Siva Idol is inscripted, likewise, in Siva Temple, Perumal Deity
\n(Vaishnavaite Deity) has been incripted. For example,  in Tirunelveli
\nNellaiappar Temple and Palli Konda Perumal Sannathi and in Tiruchendur Lord
\nMurugan Temple, Perumal (Vaishanavaite Deity) Sannathi (Sanctum Sanctorum) is
\nseparately there and in Chidambaram also, there is separate Sannathi for
\nPeruamal.\n<\/p>\n
\t(d) Saint Thirumoolar has also said in his preachings\/divine poems that if
\nany person removes the idol of Siva, it will cause law and order problem\/other
\nchaos\/calamities in the State. For example, Ayodhya Babar Masjid problem. So, in
\nview of the problem, Central Act 42 of 1991 was enacted not to change or modify
\nor alter the idol or Temple or even restrainment from removing.\n<\/p>\n
\t(e) The Priests who perform poojas in the Temples of  Vaishnavaites
\n(Vishnu) are called as “Bhattachariyars” and the Priests who perform poojas in
\nthe Temples of Saivaites (Siva) are called as “Sivachariyars”. There was one
\ncustom prevailing in the Thirukurungudi Temple, i.e. the Bhattachariyar will ask
\nthe Sivachariyar as to whether the Lord Mahendragirinathar had His food, i.e. in
\nTamil, it is called as @mKJ cz;lhwh@ and that custom has been altered by the
\ndefendants.\n<\/p>\n
\t(f) On 1.6.2004, Lord Mahendragirinathar Sannathi (Lingam) has been
\naltered, removed and demolished and hence, there was commotion\/opposition from
\nthe general public and so, the plaintiffs, who are the Saivaites, were affected
\nby the activities of the defendants 1 to 4. The first plaintiff is the President
\nof Saiva Velalar Association of Thirukurungudi and the second plaintiff is a
\nnative of Thirukurungudi and both of them are following the customs and rituals
\nof Saivism.\n<\/p>\n
\t(g) The Temple was under the control of the first defendant-Jeeyar of
\nThirukurungudu Jeeyar Madam and the defendants 2 and 3, namely the Commissioner
\nof H.R. & C.E., Chennai and the Joint Commissioner of H.R. & C.E.,
\nPalayamkottai, respectively, are the Administrative Officers and they are under
\nthe control of the fourth defendant-State of Tamil Nadu, represented by District
\nCollector.\n<\/p>\n
\t(h) Hence, for the reasons stated above, on behalf of all the Saivaites,
\nboth the plaintiffs have come forward with the suit for the following reliefs:-
\n\t(hi) to declare that the demolition, removal and relocation the Sannathi
\nof Lord Mahendragirinathar, situated in North-East of Sanctum Santorum of the
\nTemple and in front of Veetriruntha Nambi’s (sitting posture) Sannathi within
\nthe premises of Arulmighu Azhagia Nambirayar Temple, Thirukurungudi, to a
\ndifferent place, is invalid and
\n\t(hii) for injunction to subsequently instal the aforesaid Arulmighu
\nMahendragirinathar Sannathi in the same place as existed earlier.
\n\tDuring the pendency of the suit, defendants 5 to 9 were impleaded as
\nparties.\n<\/p>\n
\t5. The gist and essence of the written statement filed by the first
\ndefendant-Jeeyar Mutt of Thirukurungudi, rep. by  its Jeeyar Swamigal, are as
\nfollows:\n<\/p>\n
\t(a) The plaintiffs are not the regular worshippers of the Arulmighu
\nAzhagia Nambirayar Temple, Thirukurungudi (hereinafter referred to as ‘the
\nTemple’), or the Lord Shiva therein. They have no locus-standi to file the suit.
\nThe third defendant-Joint Commissioner, Hindu Religious and Charitable
\nEndowments Department, Palayamkottai, is an unnecessary party to the suit. The
\nsuit is bad for mis-joinder of party.\n<\/p>\n
\t(b) The Lord Shiva, while wandering in the Mahendragiri Forests, was
\nafflicted by some curse and Sri Sundara Paripooranar, the Lord of the Temple
\ngave Dharshan and requested Him to stay there and that is why the great
\nVaishnavaite Saint Thirumangai Azhwar has sung in praise of Lord Shiva and
\nreferred to Him as “Pakkam Nindraar”. The Deity Lord Shiva should be on the side
\nand cannot be opposite to the Presiding Deity.\n<\/p>\n
\t(c) The Lord Shiva known as Shri Mahendragirinathar was originally
\nenshrined on the Hill Top and as the worshippers could not reach there, slowly
\nthe Shrine got defunct and the Linga was brought and placed within the
\nVaishnavite Temple and that structure is now being removed, had no foundation
\nand was apparently put to as a temporary make-shift arrangement at that time. It
\nwas not originally not part of the Temple, but a later addition.\n<\/p>\n
\t(d) The Temple is a Vaishnavaite Temple under the administration of the
\nHead of the Mutt, His Holiness The Jeeyar Swamigal. The Mutt had to seek the
\nhelp of donors and the TVS Group agreed to renovate the Temple at a cost of
\nnearly Rs.1 crore and the founder of the TVS Group belonged to the Village of
\nthe Temple and his family members have great devotion to the Deities in the
\nTemple.\n<\/p>\n
\t(e) As per the tradition and accepted practice, before taking up the
\nrenovation work, Deiva Prasanam was conducted to seek divine sanction and to
\nperform the requisite rituals found necessary and to rectify the defects, if
\nany. The acclaimed Tantric Shri Unnikrishnan was consulted and the divine
\nordination disclosed that the then dilapidated Shiva Temple on the North-East of
\nthe Village known as Arulmighu Shri Analleswara Temple be renovated first before
\nthe renovation work in the Arulmighu Azhagiya Nambriyar Perumal Temple.
\nAccordingly, the same was done.\n<\/p>\n
\t(f) The Deiva Prasanam further disclosed that the practice of preparation
\nof Neivediyam in common in Madapalli (Divine Kitchen) in the Temple was not
\nproper and be discontinued. Since the offering thus made to Lord Shiva was
\nindignant as constituting as Sesham (residue) and that separate Shrine and
\nMadapalli be built exclusively for Lord Shiva as per Saastric prescriptions.
\nThese disclosures coincided with the opinion of scholars, Jeeyar Swamigal, who
\nis the sole Administrator of the Temple, and also various other religious Heads
\nof eminence and erudite   scholars having special knowledge of Aagama Saastras
\nand most of the devotees expressed their consent to Jeeyer Swamigal’s views.\n<\/p>\n
\t(g) Renovation work is thus not for removing the Siva Linga but for
\nproviding proper place and eminence appropriate to Lord Shiva as per saastric
\nprescriptions. The divine ordination and saastric requirements are not
\nappreciated but objected to by the plaintiffs. If they are true Saivaite
\ndevotees, they should come forward to help the Temple authorities to install the
\nShrine of Lord Shiva with a separate Madapalli and greater facilities as
\nproposed.\n<\/p>\n
\t(h) In “Aagama Saastras”, there is no absolute bar that an Idol\/Linga
\nTemple cannot be shifted from its place to another under any circumstances.
\nPrathistha (installation) texts of the Aagama Saastras, permit and make
\nprovision for Punar Nirmanam (re-installation) and prescribes the rules
\ntherefor. The proposal is to ensure and enhance the solemnity and dignity of the
\nworship of Lord Shiva in the Temple precincts by rectifying the defects
\ndisclosed in the Deiva Prasanam in conformity with Saastric prescriptions with
\nthe constrains of space inside the Temple and not to cast any indignity to the
\nLingam as alleged in the plaint.\n<\/p>\n
\t(i) All the Poojas to the Lord Shiva will be performed as before, with
\nseparate Neivedaya in the new Divine Kitchen after the chance of location to the
\nright place and hence, the first defendant-Jeeyar of Thirukurungui Mutt prayed
\nfor dismissal of the suit.\n<\/p>\n
\t6. The gist and essence of the additional written statement filed by the
\nfirst defendant-Jeeyar Mutt of Thirukurungudi, represented by its Jeeyar
\nSwamigal, are as follows:\n<\/p>\n
\t(a) The Government of Tamil Nadu issued G.O.Ms.No.55, Tamil Development,
\nCulture and Religious Endowments Department, dated 8.4.2005, ratifying the
\naction of the Temple authorities in shifting the Shrine of the Lord Shiva and
\npermitted the consecration in the new Shiva Shrine in granite in the east of
\nnorth-east quadrant of the third Prakaram of the Temple with the Sanctum
\nSanctorum, the Artha Mandapam, the Maha Mandapam along with the Subordinate
\nDeities.\n<\/p>\n
\t(b) The location of the Idol at the proper place cannot affect the
\nreligious sentiments of any worshipper. The religious function of the Head of
\nthe Mutt, is not subject to supervisory control of the H.R.& C.E. Board. The
\nAzhagiya Nambiraya Perumal Temple required extensive repairs and the structures
\nwere in a dilapidated condition. The Mutt was not in a position to undertake the
\nrenovation work due to financial constraints.  The Venugopala Swamy Kainkarya
\nTrust had been undertaking renovation\/restoration of ancient Temples in Southern
\nIndia by adopting a holistic approach blending science and ancient wisdom. The
\nTrust had been involved in the restoration activities of several Temples in
\nPadaveedu, Tiruvannamalai District, Sri Kapaleeswarar Temple, Chennai, Sri
\nNellaiappar Temple, Tirunelveli, and the Temples at Sri Rangam and Tiruttani.\n<\/p>\n
\t(c) The Temple is unique in its architectural conception and iconographic
\nformation having three Shrines, dedicated to the Lord Vishnu, in the Standing,
\nSitting and Reclining Postures, all facing east as prescribed in Vaikhanasa
\nAgama, the scripture followed in the Temple. The Shrine of Lord Shiva without
\nany inscription on its walls or any old architectural details, located in front
\nof the shrine of the Lord Vishnu, in Sitting Posture and obscuring its view,
\nindicates that it was probably a construction of more recent times. The Agamas
\nprescribe that no Shrine should ever be built obscuring the view of another and
\nthe Shrine of Lord Shiva not only goes against Agamic prescriptions, but also
\nagainst the architectural conventions and practices prevalent in the State.\n<\/p>\n
\t\t(d) On consultation with the experts, who opined that the Shrine was
\na later day addition, and the same being also fortified by the presence of the
\nBronze Idol belonging to the near-by Shiva Temple, attached to the Nambi Temple,
\nthese would indicate that the Shrine of Lord Shiva should be re-located to the
\nnorth-eastern portion within the Temple and it was opined that due honour will
\nbe given to the Lord Shiva.\n<\/p>\n
\t(e) Before commencing the renovation work, Deva (Deiva) Prasannam was
\nconducted at the Temple premises in the presence of the first defendant-Jeeyar
\nof Thirukurungudi Mutt, Agama experts, local public and Sthapathi, among the
\nvarious revelations, it was pointed out that the Shiva Shrine needs to be re-
\nlocated and a separate kitchen established for preparing food offerings to the
\nLord Shiva.\n<\/p>\n
\t(f) It is to be noted that Mr.A.Krishnamachari earlier filed Writ Petition
\nNo.23193 of 2004, 13382 of 2005 and 18450 of 2005 and he himself is the author
\nof a Book “Sri Renga Temple Prasanam”, wherein he has praised the ability and
\nrecommendtions of Sri Unnikrishna Panickar who has conducted the Deiva Prasannam
\nin this case also. In the said Book, it is mentioned that Sri Unnikrishna
\nPanickar conducted Deiva Prasannam at Nava Thirupathi, Thirukurugudi and
\nSrivilliputhur and remedial measures ordained were carried out. It is also
\nspecifically stated that due to the efforts taken by Sri Venu Srinivasan, Divya
\nDesams were renovated and their pristine glory restored.\n<\/p>\n
\t(g) The Head of the Mutt has taken in the interests of the religion and
\nworshippers and the decision to shift the Idol was made, and as no new Idol was
\nto be installed, the sanctity of the Temple would not be diminished. His
\nHoliness Shri Kanchi Sankaracharya of Kanchi Kamakoti Peetam opined that the
\nIdol of the Lord Shiva can be re-located as per the Agamic injunctions.\n<\/p>\n
\t(h) A detailed plan was prepared and care was taken to ensure the
\ninvolvement of the local community in the implementation. The entire structure
\nwas carefully removed and all the stones duly preserved and identified. Stone by
\nstone and without any damage, the Shrine was re-located by  scientific methods.
\nAs a part of the renovation work, the Idol of the Lord Shiva with Subordinate
\nDeities, were to be re-located in the Third Circumambulatory Path (Prakaram),
\nwhich is within the Temple.\n<\/p>\n
\t(i) Re-locating the Shrine of the Lord Shiva within the same Temple does
\nnot and cannot amount to changing the character of the Temple. The character of
\nthe said Temple continues to remain a Vaishnavaite Temple. There is no new
\nTemple which has been created for the Shiva Deity. There is no violation of the
\nprovisions of “The Places of Worship (Special Provisions) Act, 1991 (Act No.42
\nof 1991)”.\n<\/p>\n
\t(j) Besides an expert committee was constituted on 25.2.2003 on the
\ndirections of the Government to go into the issue and the said committee
\nsubmitted its report on 31.3.2003, and after considering the report submitted by
\nthe expert committee, the Government issued G.O.Ms.No.55, Tamil Development
\nCulture and Religious Endowments Department, dated 8.4.2005, ratifying the
\naction of the Temple authorities in shifting the Shrine of the Lord Shiva to the
\nnorth-east quadrant. All the actions of the Head of the Mutt stand validated in
\npursuance of the said G.O. issued by the Government. Hence, the first defendant
\nprayed for dismissal of the suit.\n<\/p>\n
\t7. The gist and essence of the second additional written statement filed
\nby the first defendant-Jeeyar Mutt of Thirukurungudi, rep. by its Jeeyar
\nSwamigal, are as follows:\n<\/p>\n
\t(a) The fifth defendant-Divya Desa Parampariya Padukappu Peravai, Trichy,
\nrepresented by its Secretary and the sixth defendant-Hindu Baktha Jana Sabai
\nState Committee, through its State President Thiyagarajan, are neither regular
\nworshippers of the Lord Shiva in the Temple, nor worshippers of the Temple. They
\ncannot represent the body of persons whom they appear to represent and they are
\nunnecessary parties.\n<\/p>\n
\t(b) The Sivan Sannithi was installed recently. In Periya Thirumozhi, sung
\nby Thirumangai Azhwar, he refers as “Pakkam Nirka Ninra Panbaroor”, which means
\n“Who Is Standing Besides”. But the said hymn does not denote the Sivan Deity in
\nquestion. The Sivan Idol is not on the side of any of the Vishnu Idols and the
\nSivan Deity is installed in front of the Vishnu Deity in Sitting Posture. The
\n“Sthala Puranam” refers to a deity of Sivan in the above Temple, but none of
\nthese texts say that it is more than 1000 years old. The Idols of Lord Vinayagar
\nand Lord Murugan were installed during Samprokshanam held in 1911 and 1981
\nrespectively. Though there are several references about the “Pakkam Nindra
\nSivan” in Tamil Literature works, but none of them refers to the Sivan Idol,
\nwhich was installed in front of the Lord Vishnu in the Sitting Posture. All
\nthese references are made only to the Mountain called “Mahendragiri” and the
\nsaid Hill is in the form of a “Lingam” and is being referred to as “Pakkam
\nNindrar” and only in that context, the Azhwar made the above said references.\n<\/p>\n
\t(c) There was no foundation for the Lord Sivan Shrine and the pillars over
\nwhich the Lord Shiva Shrine stood, are there for any one to see and these six
\npillars are of pieces and bits of granite stones and the granite over it, that
\nis, around the top are also of like nature.\n<\/p>\n
\t(d) The practice of Pooja by Pothis of Kerala origin is very common in the
\nVillage, so also the seeing of Prasannam. As per the tradition and accepted
\npractice, Deiva Prasannam was conducted by the acclaimed Tantric Sri
\nUnnikrishnan to find out the defects, if any, and to rectify the same for the
\nwelfare of the villagers and devotees at large. Deiva Prasannam was conducted on
\n22.8.1996 and one of the disclosures of the Deiva Prasannam was the renovation
\nof the Siva Temple situated on the north-east of the Village on the bank of the
\nRiver called Lord Analleswarar and the Temple had almost crumbled and was mostly
\nburied. The work had been taken up with all devotion as per the injunctions in
\nDeiva Prasannam and the whole Temple was pulled out from the debris, totally
\nrenovated and Saivaite Heads of the Mutts attended the Kumbabishekam of the said
\nTemple. The Deiva Prasannam also indicated that the Lord Sivan Idol with its
\nParivara Devathai, in the Nambirayar Temple, obstructing the view of the Lord
\nVishnu, in Sitting Posture, is not proper, and should be re-located in
\nconsultation with Agama experts. The Devia Prasannam  further disclosed that the
\nLord Sivan should be given due position as a main Deity and not as a Parivara
\nDevatha, that is, as a Sub-Deity, as per Saiva and Vaikhanasa Agama, underwhich
\nthe entire Temple functions. A separate Madapalli (Divine Kitchen) should be
\nconstructed and Naivedyam has to be prepared separately for the Lord Shiva and
\nthe Lord Vishnu.\n<\/p>\n
\t(e) The various religious Heads also opined that the Idol of Lord Shiva
\ncan be re-located as per the injunctions of the “Agamas” and approved the same.
\nThe villages who are the regular devotees, have also given a written
\nrepresentation for re-locating the Lord Shiva Shrine. The Idol of Lord Shiva was
\nremoved as per the “Agama Principles”. After the shifting of Lord Shiva Idol,
\nthe village and the neighbouring villages, had a good rain and cultivation also
\nimproved. Almost all the Lakes in the District got filled.\n<\/p>\n
\t(f) The character of the Temple is not changed and the re-location of the
\nSivan Idol is not against the rules and regulations of the Tamil Nadu H.R. &
\nC.E. Act. In the present case, although no permission is necessary for shifting,
\nthe Government granted the same by issuing G.O.(Ms).No.55, dated 8.4.2005. There
\nis no illegality in shifting the Idol from the present position to the Third
\nPrakaram of the Temple.\n<\/p>\n
\t(g) First defendant-Jeer as the Head of the Mutt, has control and
\nmanagement of the entire Temple and he is the authority to decide the religious
\nmatters and his decision cannot be interfered with by anybody. The renovation
\nwork was carried out with the full view of the public and there is no foundation
\nof the Idol. No valuable stones were kept under the Idol. Even after the
\nshifting of the Shiva Idol, it continues to be the Lord Vishnu Temple and it has
\nnot changed to any other character. The worshipper can continue to worship Lord
\nShiva and Lord Vishnu and there is absolutely no impediment to the worshipper to
\nworship the Deities.\n<\/p>\n
\t(h) In any event, the Tantric Unnikrishna Panicker did not suggest to re-
\nlocate for the purpose of TVS Group. On the contrary, it was ascertained the
\n‘will’ of the Presiding Deity that ‘Deva Prasannam’ was conducted  and re-
\nlocation was suggested for the well-being of the entire village. The shifting of
\nthe Lord Shiva is only a religious matter. The power of superintendence all over
\nthe Temple under Section 23 of the Tamil Nadu H.R. & C.E. Act will not apply to
\nthe religious function of the Head of the Mutt. Even the Expert Committee
\nappointed by the Government gave an opinion that the re-location of the Shivan
\nIdol to the North-East corner of the Third Quadrant (Third Prakaram) of the
\nTemple is proper and can be done.\n<\/p>\n
\t(i) The Head of the Mutt has wide and ample powers to change the location,
\nso that the Idols are placed in appropriate places and in accordance with
\n“Agamas”. The renovation of Arulmigh Azhagiya Nambirayar Temple was done in
\naccordance with ‘Agamic’ principle keeping in view of the religious sentiments
\nof the worshipper.  Hence, the D-1 prayed for dismissal of the suit.\n<\/p>\n
\t8. The nut-shell of the written statement filed by D3, is as follows:
\n\tD2-Commissioner of H.R. & C.E. Department, passed an order constituting a
\nhigh level committee to pursue the request received from the Jeer  Mutt
\nregarding the re-location of Arulmighu Mahendragirinathar Sannathi and they
\nsubmitted a report, opining as follows:\n<\/p>\n
\t“1. The Shiva Lingam in the main sanctum sanctorum of the Shiva Temple
\nshall not be re-located.\n<\/p>\n
\t2. In the Demi-God Temples, if the Shivan Shrine is re-located either
\nbecause of its dilapidated condition or because of someone else accidentally, it
\nwould be re-installed in its original place as per the religious customs and
\nconventions. It could be done by rules of atonement enumerated in Saastras. For
\nthis, the song sung by some individual cannot be taken as guidelines. Further,
\nthe installation of Lingas is of three types, namely Deiviga, Arsha and Manusha.
\n‘Deiviga’ is the installation made by ‘Devas’.  ‘Arsha’ is the installation made
\nby ‘Rishis’. The ‘Suyambu Lingam” should not be disturbed. The Shiva Linga
\navailable at present belongs to subordinate Deity.  It has been made recently.
\nThis Committee opines that the same could be installed again in the appropriate
\nplace as per the practice and Saastric conventions.”\n<\/p>\n
All these proposals are under consideration.  The Government of Tamil Nadu
\npassed a Government Order in G.O.No.58, dated 23.4.1999 granting administrative
\nand technical consent for Rs.62,95,000\/- regarding the construction of the
\nTemple and performance of consecration to this Shrine. First defendant-Jeer
\nwrongly taken up in his hands acting independently and performed the “Balalayam”
\non 2.6.2004, by demolishing and re-locating Arulmighu Mahendragirinathar Shrine.
\nFirst defendant-Jeer did not obtain any permission either to perform “Balalayam”
\nor for ‘re-locating’ the Shrine. Explanation had been called for from First
\ndefendant, who has given written explanation to D2. The plaintiffs are not
\ncompetent to file the suit. Hence, D3 prayed for dismissal of the suit.\n<\/p>\n
\t9. Shorn of the contents in the additional written statement of D3, are as
\nfollows:\n<\/p>\n
\tD2 and D3 are the statutory authorities discharging their duties in
\naccordance with the provisions of the Tamil Nadu H.R. & C.E. Act in the matters
\nof religious affairs and “Agamas”. They are also empowered to ascertain the
\nopinion of the religious experts well-versed in “Agamas”. D2 constituted a
\nCommittee which submitted  a report on 31.3.2003, and according to the report,
\nthe Siva Linga Idol should not be shifted and it is in the main ‘Karbagraham’
\n(Sanctum Sanctorum) of the Temple and there is no objection for shifting the
\nSiva Lingam from the Sub-Shrine of the Temple. In this case, the Shiva Lingam is
\nnot the main “Karbagraham” of the Temple, but remained only as a Sub-Shrine.
\nWithout the knowledge of the H.R. & C.E. Department, the Shiva Linga Idol had
\nbeen removed and kept in “Dhanya Vaasam” (inside paddy). The H.R. & C.E.
\nAdministrative Department did not grant any permission either to demolish the
\nSivan Sannathi or to remove the Siva Lingam.\n<\/p>\n
\t10. Short contents of the written statement filed by D5, are as follows:\n<\/p>\n
\t(a) Arulmighu Azhagiya Nambirayar Perumal Temple at Thirukurungudi Village
\nis more than 1300 years old. The said Temple has been sanctified by the  hymns
\nof  grant Vaishnava Saints, namely Nammazhvar, Thirumangai Azhwar, Periyazhwar
\nand Thirumazhisai Azhwar. In front of the Lord Veetrirundha Nambi Sannathi, the
\nLord Shiva Sannathi had been in existence for more than 1000  years. The Shivan
\nDeity is called as “Mahendragirinathar”.\n<\/p>\n
\t(b) In the first hymn of Periya Thirumozhi, sung by the Saint Thirumangai
\nAzhwar, in the Eighth Century BC, he had referred the Deity Siva as “Pakkam
\nNirka Nindra Panbaroe”. The Vedic Period “Sthala Puranam” also had a reference
\nabout the Deity Shivan in the Temple. The Manual of Tirunelveli complied in
\n1879, which was re-published by Manonmaniam Sundaranar University, had a
\nreference about Shivan Deity at Chapter 15 page No.404. The Lord Shivan Deity is
\nsituated close to the Deity of Veetrirundha Nambi, as referred to in the
\nliterary work. Poet Haridasar who lived in 16th Century, mentioned the same in
\nhis book “Iru Samaya Vilakkam”.\n<\/p>\n
\t(c) The age old custom by offering a portion of “Naivediyam” prepared in
\nthe Temple, to the Lord Shiva, had been strictly followed. Thus, the Temple
\nstood as a mark of good relations among the “Vaishnavaites” and the “Saivaites”.
\nThe Lord Shivan Shrine was there inside the Temple for more than 1000 years as a
\nmark of religious amity between Vaishnavaities and Saivaites. So far as the
\nTamil Nadu State is concerned, the kind of “Prasannam” as alleged by First
\ndefendant in the written statement , is unheard of and there is no legal
\nsanctity or religious  authority for such kind of “Prasannam” in the Tamil Nadu
\nState. The “Prasannam” and other “thanthirams” are all irrelevant and are all
\nnot accepted as authorities in the Lord Vishnu Temples. The Agamas, traditions
\nand customs are supreme when compared to “Prasannam”. 48th Jeer of D-1 \/ Mutt
\nhas vehemently resisted the plan for removal of Sivan Sannathi from the Temple
\ntill his death on 24.2.2004. After the present Jeer of D-1\/Mutt assumption of
\nOffice, the removal of Sivan Sannithi was effected.\n<\/p>\n
\t(d) In fact, the purported reason for blasting the Sivan Sannithi from the
\npresent location, is said to be the advise of Tantric Unnikrishnan to the TVS
\nGroup, because Sivan Deity is blocking the Veetrirundha Nambi, affecting the TVS
\nGroup family and if the said Deity is shifted from the said location, it would
\nhave been benevolent to the said Tantric Unnikrishnan, who is a consultant in
\nsuch mystical matters for politicians and other powerful persons. First
\ndefendant and the other so-called religious leaders, are all recipients directly
\nor indirectly in respect of Lord’s contributions made by TVS Group of Companies
\nand from various descendants of TVS Group and First defendant and other
\nreligious leaders seem to have accorded their approval for such demolition.\n<\/p>\n
\t(e) The entire operation has nothing to do with the renovation of
\nreligious or spiritual purpose and the only purpose for which the blasting was
\ndone was for selfish purpose and approval from the so-called religious leaders,
\nfounded on financial contributions. D2 and D3 have not acted diligently and all
\nthe norms are flouted. Hence, D5 prayed for restoration of the Lord Shiva in the
\noriginal place within a stipulated time.\n<\/p>\n
\t11. The sum and substance of the written statement filed by D6, is as
\nfollows:\n<\/p>\n
\tThe Hindu Public Religious Institute is a Trust and once the Temple is
\nbuilt, idols are consecrated and dedicated to the Universe, the Trust is
\ncomplete.  The Trustees, whether they are hereditary trustees or non-hereditary
\ntrustees, or Madathipathis, have no right to change the existing statues. The
\nwish of the Founder of the Trust and dedication by the Founder, cannot be
\ninterfered with by a Trustee.  The Trustees have no right to change the position
\nof the Idols installed or to shift the Idols from one place to another. The
\nimportance of Arulmighu Azhagiya Nambirayar Temple at Thirukurungudi, is the
\nexistence of the Lord Shiva by the side of the Lord Vishnu in Standing Posture,
\nand described as “Pakkam Nindrar”. Hence, D6 prayed for restoration of Lord
\nShiva Idol in original form.\n<\/p>\n
\t12. The brief contents of the written statement filed by D7 to D9, are as
\nfollows:\n<\/p>\n
\t (a) The plaintiffs, D5 and D6 are neither the regular worshippers of the
\nTemple, nor the worshippers of Lord Shiva in the Temple. The villagers and
\nresidents, for unknown reasons, did not experience prosperity and there was
\nunhappiness all-round. The Head of the Mutt, realising the difficult conditions
\nfaced by the villagers, took the lead in obtaining expert opinion on the issue.
\nAs per the tradition and accepted practice, “Deva Prasannam” was conducted by
\nthe acclaimed Tantric Shri Unni Krishna to find out the defects, if any and to
\nrectify the same for the welfare of the villagers and devotees at large. The
\n“Deva Prasannam” was conducted on 22.8.1996, in which it was suggested to
\npredict the course of action for the welfare of the people of the village at
\nlarge and the renovation \/ rectification \/ modification of the Temple, is part
\nof it.\n<\/p>\n
\t(b) Shifting of the Lord Shiva Idol was one among the suggestions in “Deva
\nPrasannam”. There had been no rain or scanty rain and the villagers in general
\nsuffered. This necessitated the calling of Shri.Unni Krishnan and the conduct of
\n“Deva Prasannam”. He was not called for shifting of Shiva Shrine. One of the
\nwell known methods is to ascertain the ‘will’ of the Deity by “Deva Prasannam”
\nand the renovation \/ rectification \/ modification of the Temple, was performed
\none by one in due course of time and the only thing that remains is the
\n“Kumbhabhishekam” of the Shivan Deity in the newly built Shrine.\n<\/p>\n
\t(c) The villagers could perceive and live a better life than before. The
\nfaith of the villagers could never be questioned nor decided by a Court of Law
\nand the same is not justifiable. Hence, the suit is not maintainable. The
\nvillagers can now have a free Dharshan of the Lord Veetrirundha Nambi as well as
\nLord Shiva. All the villagers who were present at the time of “Deva Prasannam”
\nalso requested First defendant to take steps to remove the defects that emerged
\nduring the “Deva Prasanna”. First defendant also ascertained the views of
\nexperts on Agamas. Only thereafter, First defendant took decision to re-locate
\nthe Idol of Lord Shiva and the said decision was fully endorsed by the villagers
\nwho are the worshippers at the Temple.\n<\/p>\n
\t(d) The new Shrine appears to have been built using the very same stones
\nand in the very manner. To the knowledge of D7 to D9, the Idol of Lord Murugan
\nwas consecrated only in 1981 and that of the Idol of Lord Vinayagar, some where
\nin 1911. No damage was caused to any of the Idols. There were no valuable stones
\nor parts under any of the Idols. Only a copper plate and some stones which are
\nnot precious, were recovered under the Idol of Lord Subrahmanya.\n<\/p>\n
\t(e) After the decision to re-locate, the villagers had bountiful rains and
\ngood harvest. There has been all-round prosperity in the Village. There has also
\nbeen no change in the character of the Temple and the worshippers can continue
\nto worship the Lord Vishnu or the Lord Shiva. In fact, the earlier location of
\nthe Lord Shiva was very old and there was no proper Shrine. The new structure is
\nat the appropriate location. In fact, the religious sentiments of Saivaites were
\nalso fully taken care of in the sense that the stones which formed the structure
\nof the Shiva Deity, were numbered and removed one by one and were re-laid as per
\nthe numbers in the “Karbhagraha” (sanctum sanctorum) of the newly built Shrine
\nof the Lord Shiva. Therefore, D7 to D9 prayed for dismissal of the suit.\n<\/p>\n
\t13. On the basis of the pleadings and arguments advanced by learned
\ncounsel on both sides, the trial Court framed necessary issues and considering
\nthe oral and documentary evidence, the trial Court decreed the suit as prayed
\nfor by the plaintiffs, against which, D1 to D3 and D7 to D9 preferred First
\nAppeals and the first appellate Court allowed those First Appeals and dismissed
\nthe suit. Challenging the same, the plaintiffs and D5 and D6 have preferred the
\npresent Second Appeals. The proposed parties before the first appellate Court,
\nwhose I.As. for impleadment, were dismissed by the first appellate Court on the
\ndate of disposal of the First Appeals, have preferred a petition before this
\nCourt seeking leave to appeal in S.A.S.R.No.16491 of 2010.\n<\/p>\n
\t14. At the time of admission of Second Appeal (MD).No.1075 of 2009, the
\nfollowing substantial questions of law were framed for consideration, which
\nwould apply to all the Second Appeals:\n<\/p>\n
\t“(i) Whether the lower appellate Court is right in disposing of  the First
\nAppeal, without framing proper points for determination under Order 41 Rule 31,
\nCPC ?\n<\/p>\n
\t(ii) Whether the lower appellate Court is right in holding that the
\nplaintiffs have no locus-standi to file the suit ?\n<\/p>\n
\t(iii) Whether the lower appellate Court is right in holding that as per
\nG.O.(Ms).No.55, dated 8.4.2005, the H.R.& C.E. Department, has ratified the
\nshifting of the Idol of Lord Shiva, when especially the Division Bench of this
\nCourt has directed the lower Court to decide the suit, without reference to
\nG.O.(Ms).No.55, dated 8.4.2005 ?\n<\/p>\n
\t(iv) Whether the lower appellate Court is justified in holding that the
\nshifting of the Idol Lord Shiva was done on the basis of the Deva Prasannam,
\nwithout any reference to the Agama Saastrams ?\n<\/p>\n
\t(v) Whether the lower appellate Court is right in holding that the first
\ndefendant, viz., Jeer, has got power to make changes, which according to him, is
\nagainst Agama Saastras ?\n<\/p>\n
\t(vi) Whether the lower appellate Court is right in holding that the
\nshifting of the Idol of Lord Shiva is correct and it is in accordance with Agama
\nSaastras, without making it clear the relevant Agama Saastras to that effect ?\n<\/p>\n
\t(vii) Whether the lower appellate Court is right in allowing the First
\nAppeal, when admittedly the Idol of Lord Shiva was shifted and the defendants
\nfailed to establish that the shifting of Idol of Lord Shiva was in accordance
\nwith Agama Saastras or other religious text ?\n<\/p>\n
\t(viii) Whether the lower appellate Court is justified in rendering the
\njudment without disposing of the applications filed under Order 1 Rule 8(5) CPC
\nand Order 1 Rule 10(2) of CPC ?\n<\/p>\n
\t(ix) Whether the lower appellate Court is right in placing the burden on
\nthe appellants  to  prove that the shifting of Lord Shiva is against the Agama
\nSaastras ?  and\n<\/p>\n
\t(x) Whether the lower appellate Court is right in rendering the judgment,
\nwhen Tr.O.P.Nos.148 and 149 of 2009 were filed and pending, on the file of the
\nPrincipal District Judge, Tirunelveli, wherein, serious allegations were made
\nagainst the learned Sub-Judge, Valliyoor, who disposed of the appeal ? ”\n<\/p>\n
\t15. At the time of admission of S.A.(MD).No.1075 of 2009, the above ten
\nsubstantial questions of law were framed by this Court and at the time of
\nadmission of S.A.(MD).No.176 of 2010, it was specifically observed by this Court
\nthat the above ten substantial questions of law are sufficient to dispose of
\nS.A.(MD).No.176 of 2010 also. The same would also apply to the other appeal in
\nS.A.(MD).No.646 of 2010. Hence, the above ten substantial questions of law cover
\nall the three Second Appeals.\n<\/p>\n
\t16. Substantial question of law (i)
\n\tWhether the lower appellate Court is right in disposing of the First
\nAppeal, without framing proper points for determination under Order 41 Rule 31,
\nCPC ?\tIt is worthwhile to refer Order 41 Rule 31 of CPC, which reads as follows:
\nOrder 41: Appeals from Original Decrees:\n<\/p>\n
Rule 31: Contents, date and signature of judgment.– The judgment of the
\nAppellate Court shall be in writing and shall state–\n<\/p>\n
\t(a) the points for determination;\n<\/p>\n
\t(b) the decision thereon;\n<\/p>\n
\t(c) the reasons for the decision; and\n<\/p>\n
\t(d) where the decree appealed from is reversed or varied, the relief to
\nwhich the appellant is entitled;\n<\/p>\n
and shall at the time that it is pronounced be signed and dated by the Judge or
\nby the Judges concurring therein.\n<\/p>\n
\tHigh Court Amendment (Madras): Substitute the following for R.31:
\n\t“31. The judgment of the Appellate Court shall be in writing and shall
\nstate.–(a) the points for determination; (b) the decision thereon; (c) the
\nreasons for the decision; and (d) where the decree appealed from is reversed or
\nvaried, the relief to which the appellant is entitled; and shall bear the date
\non which it is pronounced and shall be signed by the Judge or the Judges
\nconcurring therein:\n<\/p>\n
\tProvided that, where the presiding Judge is specially empowered by the
\nHigh Court to pronounce his judgment by dictation to a shorthand-writer in open
\nCourt the transcript of the judgment so pronounced shall, after such revision as
\nmay be deemed necessary be signed by the Judge.”\n<\/p>\n
\t17. Learned counsel appearing for the plaintiffs submitted that the first
\nappellate Court has not given opportunity to them to put forth their arguments
\nand it heard the arguments of the defendants and without framing proper points
\nfor determination so as to comply with the provisions of under Order 41 Rule 31
\nCPC, the judgment had been pronounced and hence, the judgment and decree of the
\nfirst appellate Court are liable to be set aside.\n<\/p>\n
\t18. On the other hand, the learned Senior Counsel and the other counsel
\nfor the defendants submitted that even though the first appellate Court has not
\nspecifically framed the points for determination, it has dealt with the issues
\nframed and decided by the trial Court and so, as per the decisions of the
\nSupreme Court reported in 2006 (3) SCC 224 = 2007 (1) L.W. 869  (G.Amalorpavam &
\nOthers Vs. R.C.Diocese of Madurai and others) and 2008 (2) SCC 728 (Nopany
\nInvestments (P) Ltd. Vs. Santokh Singh (HUF)), it is not a ground for setting
\naside the judgment and decree of the first appellate Court.\n<\/p>\n
\t19. While considering the rival submissions of both sides, it is
\nappropriate to see as to whether the said decisions of the Supreme Court are
\napplicable to the facts of the present case with regard to the non-framing of
\npoints for determination by the first appellate Court while rendering the
\njudgment.\n<\/p>\n
\t20. In the decision reported in 2006 (3) SCC 224 = 2007 (1) L.W. 869
\n(G.Amalorpavam & Others Vs. R.C.Diocese of Madurai and others), the Supreme
\nCourt held as follows:\n<\/p>\n
\t“9. The question whether in a particular case there has been substantial
\ncompliance with the provisions of Order 41 Rule 31 CPC has to be determined on
\nthe nature of the judgment delivered in each case. Non-compliance with the
\nprovisions may not vitiate the judgment and make it wholly void, and may be
\nignored if there has been substantial compliance with it and the second
\nappellate court is in a position to ascertain the findings of the lower
\nappellate court. It is no doubt desirable that the appellate court should comply
\nwith all the requirements of Order 41 Rule 31 CPC. But if it is possible to make
\nout from the judgment that there is substantial compliance with the said
\nrequirements and that justice has not thereby suffered, that would be
\nsufficient. Where the appellate court has considered the entire evidence on
\nrecord and discussed the same in detail, come to any conclusion and its findings
\nare supported by reasons even though the point has not been framed by the
\nappellate court there is substantial compliance with the provisions of Order 41
\nRule 31 CPC and the judgment is not in any manner vitiated by the absence of a
\npoint of determination. Where there is an honest endeavour on the part of the
\nlower appellate court to consider the controversy between the parties and there
\nis proper appraisement of the respective cases and weighing and balancing of the
\nevidence, facts and the other considerations appearing on both sides is clearly
\nmanifest by the perusal of the judgment of the lower appellate court, it would
\nbe a valid judgment even though it does not contain the points for
\ndetermination. …”\n<\/p>\n
 (emphasis supplied)\n<\/p>\n
\t21. In the decision of the Supreme Court reported in 2008 (2) SCC 728
\n(Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF)), the Apex Court observed
\nas follows in paragraphs 15 and 18:\n<\/p>\n
\t“15. In our view, it is difficult for us to set aside the findings of the
\nHigh Court on the question whether the first appellate court, while deciding the
\nquestions of fact and law, had complied with the requirements under Order 41
\nCPC. We are in agreement with the findings of the High Court as on a perusal of
\nthe judgment of the first appellate court, it does not appear to us that the
\nfindings arrived at by the first appellate court affirming the judgment of the
\ntrial court on any issue were either very cryptic or based on non-consideration
\nof the arguments advanced by the parties before it. …”
\n\t“18. In view of our discussions made hereinabove, we are, therefore,
\nunable to agree with the learned Senior Counsel for the appellant Mr Gupta that
\nthe High Court was not justified in holding that the findings of the first
\nappellate court were in compliance with Order 41 CPC. That apart, the learned
\nSenior Counsel for the appellant Mr Gupta could not satisfy us or even point out
\nthe specific issues which, in his opinion, had been left to be addressed by the
\nfirst appellate court. In view of the discussions made hereinabove, we are,
\ntherefore, of the view that no ground was made out by the appellant to set aside
\nthe judgment of the High Court on the question whether the judgment of the first
\nappellate court was liable to be set aside for non-compliance with the mandatory
\nprovisions of Order 41 CPC.”\n<\/p>\n
\t22. While applying the abovesaid decisions of the Apex Court to the facts
\nof the present case, and also considering the judgment and decree of the first
\nappellate Court, it is seen that the first appellate Court in this case has
\nconsidered all the issues and it has also deliberated on the issues framed by
\nthe trial Court, even though the first appellate Court did not frame any point
\nfor determination and so, I am of the view that as per the decisions reported in
\n2006 (3) SCC 224 (cited supra) and 2008 (2) SCC 728 (cited supra), the impugned
\njudgment and decree of the first appellate Court are not vitiated by the absence
\nof framing the points for determination. Substantial question of law (i) is
\nanswered accordingly.\n<\/p>\n
\t23. Substantial question of law (ii):\n<\/p>\n
\tWhether the lower appellate Court is right in holding that the plaintiffs
\nhave no locus-standi to file the suit ?\n<\/p>\n
\tLearned counsel appearing for the plaintiffs submitted that the suit has
\nbeen filed under Order 1 Rule 8 C.P.C. for collective interest of the persons
\nand the application filed under Order 1 Rule 8 C.P.C. had been allowed.
\nMoreover, the locus-standi of the plaintiffs to file the suit has been upheld in
\nEx.C-5 which is the judgment dated 3.10.2005 passed by the Division Bench of
\nthis Court in Writ Appeal No.1204 of 2005, etc., batch cases. Furthermore, the
\nplaintiffs are the devotees and they are the worshippers and so, the first
\nappellate Court committed error in coming to the conclusion that the plaintiffs
\nhave no locus-standi to agitate the case, whereas the trial Court considered
\nthis aspect and came to the correct conclusion that the plaintiffs were
\ncompetent to agitate the suit. Learned counsel for the plaintiffs further
\nsubmitted that the arguments advanced by the first defendant-Jeeyar of
\nThirukurugudi Mutt that the plaintiffs are not the regular worshippers of the
\nTemple in question, and there is no pleading to that effect in the plaint and
\nso, the first defendant attacked the locus-standi of the plaintiffs.\n<\/p>\n
\t24. Per contra, learned Senior Counsel for the defendants submitted that
\nthe suit was filed by the plaintiffs in a representative capacity of the
\nSaivaites and the first plaintiff-Chockalingam was the Head of the Saivaite
\nVellala Sangam and the second plaintiff-Sundarasubramanian belongs to
\nThirukurungudi Village; the first defendant-Jeeyer of Thirukurungudi Mutt in
\nparagraph 2 of the first written statement filed by him, stated that the
\nplaintiffs are not even the regular worshippers of the Temple or the Shrine of
\nthe Lord Shiva therein.\n<\/p>\n
\t25. While considering the arguments advanced on either side, it is seen
\nthat the plaintiffs have filed the suit in a representative capacity and they
\nare competent to file the same being the worshippers of the Temple. In this
\nconnection, it is worthwhile to refer Articles 25 and 26 of the Constitution of
\nIndia, as follows:\n<\/p>\n
“Article 25: Freedom of conscience and free profession, practice and propagation
\nof religion:–(1) Subject to public order, morality and health and to the other
\nprovisions of this Part, all persons are equally entitled to freedom of
\nconscience and the right freely to profess, practise and propagate religion.
\n\t(2) Nothing in this article shall affect the operation of any existing law
\nor prevent the State from making any law–\n<\/p>\n
\t(a) regulating or restricting any economic, financial, political or other
\nsecular activity which may be associated with religious practice;\n<\/p>\n
\t(b) providing for social welfare and reform or the throwing open of Hindu
\nreligious institutions of a public character to all classes and sections of
\nHindus.\n<\/p>\n
Explanation I.–The wearing and carrying of kirpans shall be deemed to be
\nincluded in the profession of the Sikh religion.\n<\/p>\n
Explanation II.–In sub-clause (b) of clause (2), the reference to Hindus shall
\nbe construed as including a reference to persons professing the Sikh, Jaina or
\nBuddhist religion, and the reference to Hindu religious institutions shall be
\nconstrued accordingly.”\n<\/p>\n
“Article 26: Freedom to manage religious affairs:\n<\/p>\n
\tSubject to public order, morality and health, every religious denomination
\nor any section thereof shall have the right–\n<\/p>\n
\t(a) to establish and maintain institutions for religious and charitable
\npurposes;\n<\/p>\n
(b) to manage its own affairs in matters of religion;\n<\/p>\n
(c) to own and acquire movable and immovable property; and\n<\/p>\n
(d) to administer such property in accordance with law.”\n<\/p>\n
\t26. Regarding the aspect of “religion” and “dharma” in conjunction with
\nArticles 25 and 26 of the Constitution of India, learned counsel for First
\ndefendant-Jeer relied on a decision of the Supreme Court reported in 1996 (9)
\nSCC 548 (A.S.Narayana Deekshitulu Vs. State of .P), wherein, the Apex Court has
\nquoted in detail, as under:\n<\/p>\n
\t“Articles 25 and 26 of the Constitution of India deal with and protect
\nreligious freedom. Religion as used in these Articles must be construed in its
\nstrict and etymological sense. Religion  is that which binds a man with his
\nCosmos, his Creator or super force. Essentially, religion is a matter of
\npersonal faith and belief of personal relations of an individual with what he
\nregards as Cosmos, his Maker or his Creator which, he believes, regulates the
\nexistence of insentient beings and the forces of the Universe. Religion is not
\nnecessarily theistic.”\n<\/p>\n
\t“Dharma embraces every type of righteous conduct covering every aspect of
\nlife essential for the sustenance and welfare of the individual and the society
\nand includes those rules which guide and enable those who believe in God and
\nheaven to attain moksha (eternal bliss). Rules of dharma are meant to regulate
\nthe individual conduct, in such a way as to restrict the rights, liberty,
\ninterest and desires of an individual as regards all matters to the extent
\nnecessary in the interest of other individuals, i.e., the society and at the
\nsame time making it obligatory for the society to safeguard and protect the
\nindividual in all respects through its social and political institutions.
\nShortly put, dharma regulates the mutual obligations of individual and the
\nsociety. The word ‘dharma’ or ‘Hindu dharma’ denotes upholding, supporting,
\nnourishing that which upholds, nourishes or supports the stability of the
\nsociety, maintaining social order and general well-being and progress of
\nmankind; whatever conduces to the fulfilment of these objects is dharma, it is
\nHindu dharma and ultimately “Sarva Dharma Sambhava”. Dharma is that which
\napproves oneself or good consciousness or springs from due deliberation for
\none’s own happiness and also for welfare of all beings free from fear, desire,
\ndisease, cherishing good feelings and sense of brotherhood, unity and friendship
\nfor integration of Bharat. This is the core religion to which the Constitution
\naccords protection.”\n<\/p>\n
\t“A religion undoubtedly has its basis in a system of beliefs and doctrine
\nwhich are regarded by those who profess religion to be conducive to their
\nspiritual well-being. But a religion is not merely an opinion, doctrine or
\nbelief. It has outward expression in acts as well. It is not every aspect of
\nreligion that has been safeguarded by Articles 25 and 26 nor has the
\nConstitution provided that every religious activity cannot be interfered with.
\nEvery religion must believe in a conscience and ethical and moral precepts. …
\nThe approach to construe the protection of religion or matters of religion  or
\nreligious practices guaranteed by Articles 25 and 26 must be viewed with
\npragmatism since by the very nature of things, it would be extremely difficult,
\nif not impossible, to define the expression religion or matters of religion or
\nreligious belief or practice.”\n<\/p>\n
\t“The right to religion guaranteed under Article 25 or 26 is not an
\nabsolute or unfettered right to propagating religion which is subject to
\nlegislation by the State limiting or regulating any activity – economic,
\nfinancial, political or secular which are associated with religious belief,
\nfaith, practice or custom. They are subject to reform on social welfare by
\nappropriate legislation by the State. Though religious practices and
\nperformances of acts in pursuance of religious belief are as much a part of
\nreligion as faith or belief in a particular doctrine, that by itself is not
\nconclusive or decisive. What are essential parts of religion or religious belief
\nor matters of religion and religious practice is essentially a question of fact
\nto be considered in the context in which the question has arisen and the
\nevidence – factual or legislative or historic – presented in that context is
\nrequired to be considered and a decision reached. The Court, therefore, while
\ninterpreting Articles 25 and 26 strikes a careful balance between the freedom of
\nthe individual or the group in regard to religion, matters of religion,
\nreligious belief, faith or worship, religious practice or custom which are
\nessential and integral part and those which are not essential and integral and
\nthe need for the State to regulate or control in the interest of the community.”
\n\t“The religious freedom guaranteed by Articles 25 and 26, therefore, is
\nintended to be a guide to a community life and ordain every religion to act
\naccording to its cultural and social demands to establish an egalitarian social
\norder. The protection of Articles 25 and 26 of the Constitution is not limited
\nto matters of doctrine. They extend also to acts done in furtherance of religion
\nand, therefore, they contain a guarantee for rituals and observances, ceremonies
\nand modes of worships which are integral parts of the religion. Articles 25 and
\n26, therefore, strike a balance between the rigidity of right to religious
\nbelief and faith and their intrinsic restrictions in matters of religion,
\nreligious belief and religious practices and guaranteed freedom of conscience to
\ncommune with his Cosmos, Creator and realise his spiritual self. Sometimes,
\npractices religious or secular, are inextricably mixed up. This is more
\nparticularly so in regard to Hindu religion because under the provisions of the
\nancient Smriti, human actions from birth to death and most of the individual
\nactions from day-to-day are regarded as religious in character in one facet or
\nthe other. They sometimes claim the religious system or sanctuary and seek the
\ncloak of constitutional protection guaranteed by Articles 25 and 26.  …..  The
\npractice in question is religious in character and whether it could be regarded
\nas an integral and essential part of the religion and if the Court finds upon
\nevidence adduced before it that it is an integral or essential part of the
\nreligion, Article 25 accords protection to it. Though the performance of certain
\nduties is part of religion and the person performing the duties is also part of
\nthe religion or religious faith or matters of religion, it is required to be
\ncarefully examined and considered to decide whether it is a matter of religion
\nor a secular management by the State. Whether the traditional practices are
\nmatters of religion or integral and essential part of the religion and religious
\npractice protected by Articles 25 and 26 is the question here.”
\n\t“The Act  (A.P. Charitable and Hindu Religious Institutions and Endowments
\nAct, 1987) regulates administration and maintenance of charitable and Hindu
\nreligious institutions and endowments in their secular administration. It lays
\nemphasis on preserving Hindu dharma and performance of religious worship,
\nceremonies and poojas in religious institutions according to their prevailing
\nSampradayams and Agamas.   …”\n<\/p>\n
\t“There is a distinction between religious service and the person who
\nperforms the service; performance of the religious service according to the
\ntenets, Agamas, customs and usages prevalent in the temple etc., is an integral
\npart of the religious faith and belief and to that extent the legislature cannot
\nintervene to regulate it.   ….”\n<\/p>\n
\t“A conjoint reading of Sections 13 and 142 of the Act preserves the
\nexisting customs, performances, religious worships, ceremonies and poojas
\naccording to Sampradayams and Agamas followed in such institutions. Section 142
\nissues an injunction against an officer from interfering with such observances.
\nYet it would not, by operation thereof, amount to revival of what has been
\nexpressly abolished under Section 34(1)(b) of the Act. …  … The further
\ncontention is that interference with matters based on custom or usage relating
\nto “religious institution” as defined in Section 2(23) amounts to interference
\nwith the freedom of conscience and free practice of religion. Therefore, it is
\nviolative of Article 25(1) and is untenable in law. As held earlier, being
\nsecular actions they are not integral parts of the religion or religious
\nmatters.”\n<\/p>\n
\t“The further contention that the power of transfer under Section 39 is
\nwithin the grinding teeth of Article 25(1) is also not acceptable. Sections 13
\nand 142 would take care of the apprehended catastrophe. On mere apprehension,
\nSection 39 cannot be declared to be ultra vires. If in any individual case any
\ntransfer was effected of a person who had no accomplishment of Agamic rules,
\ncustoms, practices or sampradayams applicable to that particular temple, it
\nwould be considered and dealt with accordingly. It cannot be expected that the
\nCommissioner would act in violation thereof and would act in a way inconsistent
\nwith Sections 13 and 142. Each case would be considered on its own merits and
\ncorrectness of such transfer would be tested in an appropriate proceedings.
\nTherefore, on that score alone, Section 39 cannot be declared arbitrary or ultra
\nvires or unjust.”\n<\/p>\n
\t“Very often the words ‘religion’ and ‘dharma’ are used to signify one and
\nthe same concept or notion; to put it differently, they are used
\ninterchangeably. This, however, is not so, the word ‘religion’, as used in
\nArticles 25 and 26 of the Constitution cannot be confined, cabined and crabbed,
\nto what is generally thought to be religion. The word religion in the two
\nArticles has really been used, not as is colloquially understood by the word
\nreligion, but in the sense of it comprehending our concept of dharma. The
\nEnglish language having had no parallel word to dharma, the word religion was
\nused in these two Articles. It is a different matter that the word dharma has
\nnow been accepted even in the English language, as would appear from Webster’s
\nNew Collegiate Dictionary.”\n<\/p>\n
\t“The sings and symptoms of dharma are that which has no room for narrow-
\nmindedness, sectarianism, blind faith, and dogma. The purity of dharma,
\ntherefore, cannot be compromised with sectarianism. A sectarian religion is open
\nto a limited group of people whereas dharma embraces all and excludes none. This
\nis the core of our dharma, our psyche. Having love for all human beings is
\ndharma. Helping others ahead of one’s  personal gain is the dharma of those who
\nfollow the path of selfless service. Defending one’s nation and society is the
\ndharma of soldiers and warriors. In other words, any action, big or small, that
\nis free from selfishness is part of dharma.”\n<\/p>\n
\t“The word ‘religion’ in Articles 25 and 26 has to be understood not in a
\nnarrow sectarian sense but encompassing our ethos of “Sarve Bhavanthu Sukinaha”.
\nLet us strive to achieve this; let us spread the message of our dharma by
\navailing and taking advantage of the freedom guaranteed by Articles 25 and 26 of
\nour Constitution.”\n<\/p>\n
\t27. Learned counsel for First defendant-Jeer relied on the decision of the
\nApex Court reported in AIR 1959 SC 860 (Sarup Singh Vs.State of Punjab), in
\nwhich the Supreme Court held as follows:\n<\/p>\n
\t“The distinction between Clauses (b) and (d) of Article 26 of the
\nConstitution of India, strikes one at once. So far as administration of its
\nproperty is concerned, the right of a religious denomination is to be exercised
\nin accordance with law, but there is no such qualification in Clause (b).
\n\tThe administration of its property by a religious denomination has thus
\nbeen placed on a different footing from the right to manage its own affairs in
\nmatters of religion. The latter is a fundamental right which no legislature can
\ntake away, whereas the former can be regulated by laws which the legislature can
\nvalidly impose.\n<\/p>\n
\tFreedom of religion in our Constitution is not confined to religious
\nbeliefs only, but extends to essential religious practices as well, subject to
\nthe restrictions which the Constitution has laid down. Under Art.26(b), a
\nreligious denomination or organisation enjoys complete autonomy in the matter of
\ndeciding as to what rites and ceremonies are essential according to the tenets
\nof the religions they hold.”\n<\/p>\n
(emphasis supplied)<\/p>\n
\t28. Learned counsel for First defendant-Jeer further relied upon the
\njudgment of the Apex Court reported in AIR 1961 SC 1402 (Durgah Committee Vs.
\nHussain Ali), wherein, the Apex Court held as follows:
\n\t“Matters of religion in Art.26(b) of the Constitution include  even
\npractices which are regarded by the community as part of its religion. In order
\nthat the practices in question should be treated as a part of religion, they
\nmust however be regarded by the said religion as its essential and integral
\npart; otherwise even purely secular practices which are not an essential or an
\nintegral part of religion, are apt to be clothed with a religion form and may
\nmake a claim for being treated as religious practices within the meaning of
\nArt.26. Similarly, even practices though religious may have sprung from merely
\nsuperstitious beliefs and may in that sense, be extraneous and unessential
\naccretions to religion itself.  Unless such practices are found to constitute an
\nessential and integral part of a religion, their claim for the protection under
\nArt.26 may have to be carefully scrutinised; in other words, the protection must
\nbe confined to such religious practices as are an essential and an integral part
\nof it and no other.”\n<\/p>\n
\t29. Learned counsel for First defendant-Jeer further relied on a decision
\nof the Supreme Court reported in AIR 1972 SC 1586 (E.R.J.Swami Vs. State of
\nTamil Nadu), wherein the Apex Court observed as follows:
\n\t“The protection of Articles 25 and 26 is not limited to matters of
\ndoctrine or belief. They extend also to acts done in pursuance of religion and
\ntherefore contain a guarantee for rituals and observances, ceremonies and modes
\nof worship which are integral parts of religion. What constitutes an essential
\npart of a religious or religious practice, has to be decided by the Courts with
\nreference to the doctrine of a particular religion and include practices which
\nare regarded by the community as a part of its religion.”\n<\/p>\n
\t30. While considering the above decisions relied on by learned counsel for
\nthe first defendant-Jeer, the protection guaranteed under Articles 25 and 26 of
\nthe Constitution of India,is not limited to the matters of doctrine or belief
\nand that they extend also to the acts done in pursuance of religion, and
\ntherefore, contain a guarantee for rituals and observances, ceremonies and modes
\nof worship, which are integral parts of religion. In the present case, the
\nworship of the Lord Shiva in the “Karbhagraham” (Sanctum Sanctorum) in front of
\nthe Lord Veetrirundha Nambhi or where the new Shrine has been constructed in the
\nThird Pragaram (III Quadrant), has to be decided by this Court. As per the above
\ndecisions, the worshipper has every right to worship the Deity as and where the
\nsame was originally installed.\n<\/p>\n
\t31. Learned counsel for the first defendant-Jeer submitted that the
\nplaintiffs are not the worshippers and they have no locus-standi to file the
\nsuit, and hence, it is worthwhile to refer the book titled, “V.K.Varadachari’s
\nLaw of Hindu Religious and Charitable Endowments”, Revised by Dr.R.Prakash,
\nAdvocate, Supreme Court, Fourth Edition 2005, Published by Eastern Book Company,
\nLucknow, which is relied on by the learned counsel for the plaintiffs, in which,
\nit is noted by the renowned author with regard to the meaning of “worshipper” in
\npage 565, as follows:\n<\/p>\n
\t“The word worshipper does not mean only those persons who engage
\nthemselves in some sort of rituals for performing worship. It has a wide
\nmeaning. Thus, a person merely visiting some temple and after paying his
\nrespects goes away, is also a worshipper. A pujari, devotee, archaka, sewak,
\nperson coming to have darshan and pay respect are all included in ‘worshipper’.
\nEven a single annual visit is sufficient to make one as worshipper of a
\nparticular deity. A person may not have even gone to some temple, even then if
\nhe is devoted to that particular one, he will be a worshipper.”
\n(emphasis supplied)<\/p>\n
\t32. The first plaintiff was the President of Saiva Velalar Association of
\nThirukurungudi. Further, even though there is no pleading that the second
\nplaintiff is the worshipper of the Temple, as per the evidence of P.W.1 (first
\nplaintiff), the second plaintiff is the native of Thirukurungudi who has
\nworshipped in the Thirukurungudi Temple and in such circumstances, I am of the
\nview that the plaintiffs are the worshippers of the Lord Shiva in the Temple.\n<\/p>\n
\t33. Learned counsel for the plaintiffs submitted that the plaintiffs are
\nthe “persons interested” and so, they are entitled to file the suit. In this
\nregard, it is useful to refer the definition of the expression “person having
\ninterest” as enunciated Section 6(15) of the Tamil Nadu Hindu Religious and
\nCharitable Endowments Act, 1959 (for shot, “the H.R. & C.E. Act”), as follows:
\n  “6. Definitions.–In this Act, unless the context otherwise requires–
\n\t..\n<\/p>\n
\t(15) “person having interest” means–\n<\/p>\n
\t(a) in the case of math, a disciple of the math or a person of the
\nreligious persuasion to which the math belongs;\n<\/p>\n
\t(b) in the case of a temple, a person who is entitled to attend at or is
\nin the habit of attending the performance of worship or service in the temple,
\nor who is entitled to partake or is in the habit of partaking in the benefit of
\nthe distribution of gifts thereat;\n<\/p>\n
\t(c) in the case of a specific endowment, a person who is entitled to
\nattend at or is in the habit of attending the performance of the service or
\ncharity, or who is entitled to partake or is in the habit of partaking in the
\nbenefit of the charity;”\n<\/p>\n
\t34. As held in the decision relied on by the learned counsel for the
\nplaintiffs, reported in 1995 Supp (4) SCC 286 (Most Rev.P.M.A. Metropolitan Vs.
\nMoran Mar Marthoma), in which, the Supreme Court referred to its another
\njudgment reported in 1970 (3) SCC 831 = AIR 1971 SC 2540 = 1971 (2) SCR 836
\n(Ugam Singh Vs. Kesrimal), right to worship is a civil right, which can be
\nsubject matter of a civil suit and if there is any infringement, the person
\nwhose right has been prevented, has every right to work out his remedy before
\ncivil forum. Are religious rights, for instance, right to worship in a religious
\nplace, entry in a Temple, administration of religious shrines for instance a
\nTemple, Mosque or a Church, are rights of civil nature? Religion in India has
\nalways been ritualistic. The Muslim rulers were by and large tolerant and
\nunderstanding. They made India their home. They invaded, ruled and became
\nIndian. But Britishers made it a colony. However they did not interfere with
\nreligion. Disputes pertaining to religious office including performance of
\nrituals were always decided by the Courts established by law. There are numerous
\nauthorities where dispute about entry in the Temple, right to worship,
\nperforming certain rituals, have been taken cognizance of and decided by civil
\nCourts. The Court protects persons in the enjoyment of a certain status or
\nproperty and it may incidentally become the duty of the Civil Court to determine
\nwhat are the accepted tenets of the followers of a creed and what is the usage
\nthey have accepted as established for the regulation of their rights inter-se.
\nAs per the decision of the Supreme Court reported in 1970 (3) SCC 831 = AIR 1971
\nSC 2540 = 1971 (2) SCR 836 (Ugam Singh Vs. Kesrimal), the right to worship is a
\ncivil right, which can be subject matter of a civil suit.\n<\/p>\n
\t35. Even though P.W.1, the first plaintiff in his evidence stated that he
\nhas not pleaded that he is the worshipper, but he has stated that he belongs to
\nSaivaite Community and he was the President of Thirukurungudi Saivaite Vellala
\nSangam and the second plaintiff belongs to Thirukurungudi Village and he was
\ndoing service to Saivaite community. The first plaintiff, along with the
\nvillagers of Thirukurungudi, sent a representation Ex.B-37, to the
\nGovernment\/H.R. & C.E. Department praying not to remove the Idol of Lord Shiva
\nfrom the place where it was situated. While considering the cross-examination of
\nP.W.1, he has stated that he has visited the Temple frequently and so, as per
\nthe definition of the expression “person having interest” in the H.R. & C.E.
\nAct, even a single visit to a Temple is enough for considering a person to be a
\n“worshipper” and in such a situation, the argument advanced   by the learned
\nSenior Counsel for the defendants that the plaintiffs are not the worshippers,
\nand they have no locus-standi to file the suit, does not merit acceptance.\n<\/p>\n
\t36. Learned Senior Counsel for the defendants submitted that the suit was
\nfiled on behalf of the Saivaites in general and not on behalf of the worshippers
\nof the suit-Temple, and the suit-Temple is a Vaishnavaite Temple and it is one
\namong the “108 Divya Desams” of the Lord Vishnu and so, the defendants 7 to 9
\nwho are opposing the plaintiff’s claim, were impleaded as parties to the suit,
\nand only the “person interested” in the well-being of the Temple can only file
\nthe suit in a representative capacity and not the plaintiffs as in the present
\ncase.\n<\/p>\n
\t37. Learned counsel for First defendant-Jeer relied on a decision of a
\nDivision Bench of this Court reported in Vol.91  L.W. 205 (Kumudavalli Ammal
\nalias Kuppammal Vs. P.N.Purushotham), wherein, it was held as follows:
\n\t“5.  …. It should be established that the persons, who are complaining
\nagainst the administrators of the trust have a real interest in praesenti and
\nnot a mere sentimental interest. The purposeful use of the expression “two or
\nmore persons having a direct interest in the trust” was intended to widen the
\nclass of persons entitled to institute the suit under the section (Section 92
\nCPC). Here again, the interest should be real, substantive and an existing
\ninterest, and not a mere remote, fictitious or contingent one. It would,
\ntherefore, appear from the meaningful expansion of the word ‘interest’ in
\nSection 92 CPC, that a person in order to lay a suit under it should plead and
\nestablish that he has some tangible interest towards the maintenance and
\nprogress of the public trust.  ….  …. What is to be primarily established is
\nthat the suit relates to a trust created for a public purpose, (2) it should
\ncontain allegations against the persons-in-breach, such as breach of trust,
\nmisappropriation or mismanagement, and (3) the necessity in the particular
\ncircumstance of a given case for administration of the trust by a body other
\nthan the body in management. If two or more persons having an interest in the
\ntrust file such a suit, then it is maintainable. ….”\n<\/p>\n
\t“7.  …. It is not necessary that a particular person to have an interest
\nunder Section 92 CPC, should be personally interested or personally affected by
\nany act done by the administrator of the trust. If it could be established that
\nthey are interested in the proper conduct and running of the trust and are
\ninvoluntarily involved in evincing interest in its being regulated and conducted
\nin accordance with the terms of the trust,  it could reasonably be said that
\nsuch a person has enough of an interest in the trust concerned.”\n<\/p>\n
\t38. Learned counsel for First defendant-Jeer also relied on the decision
\nreported in Vol.100 L.W. 182 (Guhan etc., S. Vs. Rukmini Devi Arundale, etc.),
\nin which, the Division Bench of this Court held as follows:
\n\t“One of the requirements of Section 92 CPC is that it will be obligatory
\non the part of the plaintiff in such a suit while seeking for a direction to
\naver in the plaint about any ‘necessity’ existing for a direction to be issued
\nfor the administration of the Trust. For this purpose, the plaintiff has to give
\ndetails in the plaint as to how the affairs of the Trust are being carried out
\nand as to what are the circumstances which had occasioned and which could not be
\nprevented, but for the directions being issued by Court. The ‘Necessity’ for
\nmoving the Court for direction has to be spelt out, by referring to the relevant
\nfacts and circumstances. The plaint nowhere states as to what was the machinery
\nexisting during the five decades of its existence, and how far the existing
\nmachinery was not adequate and that it has now become necessary, to get
\ndirections of Court for its administration. As the plaint is totally silent
\nregarding the particulars of the machinery which has been existing for five
\ndecades, and what necessity had arise to evolve a different method of managing
\nand administering the Trust, it is held that a fundamental pre-requisite to
\nmaintain a suit under Section 92 CPC is absent in the plaint. On the basis of
\nsuch an ill-drafted plaint, which does not contain required particulars making
\nout necessity to issue directions, the suit under Section 92 CPC is not
\nmaintainable.”\n<\/p>\n
\t39. The decision reported in AIR 1961 SC 1720 (Sinha Ramanuja Vs. Ranga
\nRamanuja), relied on by learned counsel for First defendant-Jeer, does not apply
\nto the facts of the present case, as it deals with the dispute between two Jeers
\nand their religious rights of office, which is not the case on hand.\n<\/p>\n
\t40. It would be now appropriate to consider the decisions relied on by
\nboth sides.\n<\/p>\n
\t(i) Vol.XLII ILR 360, Madras Series (T.R.Ramachandra Aiyar Vs.
\nParameswaran Unni):\n<\/p>\n
\t“Suppose, there had been a deed of dedication with respect to the temple
\nin suit, and that deed stated in so many words that Mr.T.R.Ramachandra Aiyar and
\nall other worshippers of Sri Rama would be entitled to worship there, it could
\nhardly be contended then that Mr.T.R.Ramachandra Aiyar would not be a
\nbeneficiary of the trust and as such entitled to maintain the suit. It cannot in
\nmy opinion make any difference in this respect that there is no such deed of
\ndedication available in this case, if, as is admitted, the temple in question
\nwas in fact intended for the use of worshippers of Sri Rama and
\nMr.T.R.Ramachandra Aiyar is a devotee of Sri Rama and as such entitled to
\nworship in this temple.”\n<\/p>\n
Learned Senior Counsel for the defendants submitted that since the persons who
\nhave not frequently visited a Temple, are not the worshippers, they are not
\nentitled to maintain the suit, as laid down in the said decision reported in
\nVol.XLII ILR 360, Madras Series (cited supra). But this citation is not
\napplicable to the facts of the present case, because, that decision was rendered
\nin 1918 and the H.R. & C.E. came into force from 1959. Furthermore, the
\nworshipper who visited the Temple and worshipped even once a year (annually), is
\nentitled to maintain the suit being a worshipper, as stated above, in the said
\nbook of “V.K.Varadhachari’s Law of Hindu Religious and Charitable Endowments”.\n<\/p>\n
\t(ii) AIR 1967 SC 1415 = 1967 (2) SCR 739 (Mahant Harnam Singh Vs. Gurdian
\nSingh):\n<\/p>\n
\t“6. ..  The only allegation was that a Langar used to be run in this
\ninstitution where free kitchen was provided to visitors. It was nowhere stated
\nthat any such free kitchen was being run for the general residents of Village
\nJhandawala who could, as of right, claim to be fed in Langar. Mere residence in
\na village where free kitchen is being run for providing food to visitors does
\nnot create any interest in the residents of the village of such a nature as to
\nclaim that they can institute a suit for the removal of the Mahant. The nature
\nof the interest that a person must have in order to entitle him to institute a
\nsuit under Section 92 CPC, was first examined in detail by the Madras High Court
\nin T.R.Ramachandra Aiyar v. Parmeswaran Unni, ILR 42 Mad 360 : (AIR 1919 MAD\n<\/p>\n
384). After the dismissal of the suit under Section 92 CPC, by the District
\nJudge, the case came up in appeal before Wallis,C.J., and Kumaraswami Sastri,
\nJ., who delivered dissenting judgments. The appeal was dismissed and then came
\nup before a Full Bench of three Judges under the Letters Patent. Three different
\njudgments were delivered by the members of the Full Bench, Abdur Rahim, Oldfield
\nand Coutts Trotter, JJ. Wallis, C.J., when dealing with the appeal at the
\nearlier stage, expressed his opinion that to entitle him to sue under Section 92
\nCPC, it is not enough that the plaintiff is a Hindu by religion, but he must
\nhave a clear interest in the particular trust over and above that which millions
\nof his countrymen may be said to have by virtue of their religion; and this
\nopinion was expressed even though the word “direct” in Section 92 CPC, had been
\nomitted. It is not necessary to refer to other opinions expressed by the learned
\nJudges in that case in view of the decision of their Lordships of the Privy
\nCouncil in Vaidyanatha Ayyar v. Swaminatha Ayyar,<\/a> 51 Ind.App. 282: (AIR 1924 PC\n<\/p>\n
221)(2), where they approved the opinion expressed by Sir John Wallis, C.J., in
\nthe case cited above, and held: “They agree with Sir John Wallis that the bare
\npossibility, however remote, that a Hindu might desire to resort to a particular
\ntemple gives him an interest in the trust appears to defeat the object with
\nwhich the Legislature inserted these words in the section. That object was to
\nprevent people interfering by virtue of this section in the administration of
\ncharitable trusts merely in the interests of others and without any real
\ninterests of their own.” Agreeing with the view expressed by the Privy Council,
\nwe hold that in the present case the plaintiff-respondents, who were merely
\nLambardars and residents of Village Jhandawala, had, in those capacities, no
\nsuch interest as could entitle them to institute this suit.”\n<\/p>\n
\t(iii) Vol.88 L.W. 577 (Madras High Court): (C.Kalahasti Vs.
\nR.Sukhantharaj):\n<\/p>\n
\t“3. … We are not quite sure whether the last requisite, namely, that the
\nperson must be in a position to derive some benefit from the trust in respect of
\nwhich the suit is filed, in order to qualify himself that he is a person having
\ninterest in the trust, is entirely correct. All that the majority of the Full
\nBench meant to say was that the plaintiff must stand on a special relationship
\nwith the trust as distinct from the rest of the community in respect of the suit
\ntrust, so that he may have a particular direct relationship with the
\ninstitution. To hold that any member of the public, who may have a distinct or
\nindirect connection or relationship with the institution, is a person having
\ninterest in the trust, would dilute the requirement of S.92. …”\n<\/p>\n
\t41. Learned Senior Counsel appearing for the defendants 7 to 9 submitted
\nthat the villagers of Thirukurungui have sent a representation Ex.B-39 dated
\n2.9.2003, which is much prior to the suit. They are the real worshippers at
\nAzhagiya Nambirayar Perumal Temple, Thirukurungui. Ex.B-40 is the document
\nrelating to another representation of the villagers, dated 12.9.2003, stating
\nthat since the Shrine of the Presiding Deity is closed in the evening, the
\nVillagers were unable to celebrate the overnight festival of Sivarathiri and
\nPradhosham and the other festivals of Lord Siva like Thirukalyanam and
\nThiruvidaiyatri, as the Idol was in the Shrine of the Presiding Deity. Likewise,
\nthey have also sent another representation dated 25.10.2004 with the same
\nrequest. So, the plaintiffs, with the mala-fide intention, to create a division
\namong the peace-loving villagers, have filed the suit under Order 1 Rule 8 CPC,
\nin a representative capacity and so, the plaintiffs have no locus-standi to file
\nthe suit.\n<\/p>\n
\t42. Admittedly, the suit was filed under Order 1 Rule 8 CPC, which reads
\nas follows:\n<\/p>\n
Order 1 CPC: Parties to suits:\n<\/p>\n
Rule 8: One person may sue or defend on behalf of all in same interest:
\n\t(1) Where there are numerous persons having the same interest in one
\nsuit,–\n<\/p>\n
\t(a) one or more of such persons may, with the permission of the Court, sue
\nor be sued, or may defend such suit, on behalf of, or for the benefit of, all
\npersons so interested;\t(b) the Court may direct that one or more of such
\npersons may sue or be sued, or may defend such suit, on behalf of, or for the
\nbenefit of, all persons so interested.\n<\/p>\n
\t(2) The Court shall, in every case where a permission or direction is
\ngiven under sub-rule (1), at the plaintiff’s expense, give notice of the
\ninstitution of the suit to all persons so interested, either by personal
\nservice, or, where, by reason of the number of persons or any other cause, such
\nservice is not reasonably practicable, by public advertisement, as the Court in
\neach case may direct.\n<\/p>\n
\t(3) Any person on whose behalf, or for whose benefit, a suit is instituted
\nor defended, under sub-rule (1), may apply to the Court to be made a party to
\nsuch suit.\n<\/p>\n
\t(4) No part of the claim in any such suit shall be abandoned under sub-
\nrule (1), and no such suit shall be withdrawn under sub-rule (3), of Rule 1 of
\nOrder XXIII, and no agreement, compromise or satisfaction shall be recorded in
\nany such suit under Rule 3 of that Order, unless the Court has given, at the
\nplaintiff’s expense, notice to all persons so interested in the manner specified
\nin sub-rule (2).\n<\/p>\n
\t(5) Where any person suing or defending in any such suit does not proceed
\nwith due diligence in the suit or defence, the Court may substitute in his place
\nany other person having the same interest in the suit.\n<\/p>\n
\t(6) A decree passed in a suit under this rule shall be binding on all
\npersons on whose behalf, or for whose benefit, the suit is instituted, or
\ndefended, as the case may be.\n<\/p>\n
\tExplanation.–For the purpose of determining whether the persons who sue
\nor are sued, or defend, have the same interest in one suit, it is not necessary
\nto establish that such persons have the same cause of action as the persons on
\nwhose behalf or for whose benefit, they sue or are sued, or defend the suit, as
\nthe case may be.”\n<\/p>\n
\t43. The defendants 7 to 9 have earlier filed an application to implead
\nthemselves as parties to the suit and were also impleaded as parties to the
\nsuit, as ordered by this Court in C.R.P.(PD).No.970 of 2005, dated 24.11.2005.
\nAfter impleading applications were allowed after following procedures and the
\ndefendants 7 to 9 were impleaded as parties to the suit, D7 to D9 pleaded that
\nnone of the villagers made an objection for removal of the Lord Shiva Deity. In
\nsuch circumstances, I am of the view that the plaintiffs who are worshippers of
\nthe Temple, are entitled to file the suit on  behalf of Saivaites of
\nThirukurungudi.\n<\/p>\n
\t44. Now, it is proper for this Court to consider the decision relied on by
\nthe learned counsel for the plaintiffs reported in 1995 Supp (4) SCC 286 (cited
\nsupra), to show that right to worship is a civil right, which can be the subject
\nmatter of a civil suit. The plaintiffs in the present case are the worshippers
\nof the Temple and the persons interested and so, they are having right to file
\nthe suit.\n<\/p>\n
\t45. Further, learned counsel for the defendants submitted that the suit is
\nhit by the provisions of Section 92 CPC, but this argument does not merit
\nacceptance.\n<\/p>\n
\t46. Section 92 of CPC reads as follows:\n<\/p>\n
” Section 92 CPC: Public charities–(1) In the case of any alleged breach of any
\nexpress or constructive trust created for public purposes of a charitable or
\nreligious nature, or where the direction of the Court is deemed necessary for
\nthe administration of any such trust, the Advocate-General, or two or more
\npersons having an interest in the trust and having obtained the leave of the
\nCourt may institute a suit, whether contentious or not, in the principal Civil
\nCourt, of original jurisdiction or in any other Court empowered in that behalf
\nby the State Government within the local limits of whose jurisdiction the whole
\nor any part of the subject-matter of the trust is situate to obtain a decree–\n<\/p>\n
\t(a) removing any trustee;\n<\/p>\n
\t(b) appointing a new trustee;\n<\/p>\n
  \t(c) vesting any property in a trustee;\n<\/p>\n
\t(cc) directing a trustee who has been removed or a person who has ceased
\nto be a trustee, to deliver possession of any trust property in his possession
\nto the person entitled to the possession of such property;\n<\/p>\n
\t(d) directing accounts and inquires;\n<\/p>\n
\t(e) declaring what proportion of the trust property or of the interest
\ntherein shall be allocated to any particular object of the trust;\n<\/p>\n
\t(f) authorizing the whole or any part of the trust property to be let,
\nsold, mortgaged or exchanged;\n<\/p>\n
\t(g) settling a scheme; or\n<\/p>\n
\t(h) granting such further or other relief as the nature of the case may
\nrequire.\n<\/p>\n
\t(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863),
\nor by any corresponding law in force in the territories which, immediately
\nbefore the 1st November, 1956, were comprised in Part B States, no suits
\nclaiming any of the reliefs specified in sub-section (1) shall be instituted in
\nrespect of any such trust as is therein referred to except in conformity with
\nthe  provisions of that sub-section.\n<\/p>\n
\t(3) The Court may alter the original purposes of an express or
\nconstructive trust created for public purposes of a charitable or religious
\nnature and allow the property or income of such trust or any portion thereof to
\nbe applied cy pres in one or more of the following circumstances, namely :–\n<\/p>\n
\t(a) where the original purposes of the trust, in whole or in part,–\n<\/p>\n
\t(i) have been, as far as may be, fulfilled; or\n<\/p>\n
\t(ii) cannot be carried out at all, or cannot be carried out according to
\nthe directions given in the instrument creating the trust or, where there is no
\nsuch instrument, according to the spirit of the trust;\n<\/p>\n
\t(b) where the original purposes of the trust provide a use for a part only
\nof the property available by virtue of the trust; or\n<\/p>\n
\t(c) where the property available by virtue of the trust and other property
\napplicable for similar purposes can be more effectively used in conjunction
\nwith, and to that end can suitably be made applicable to any other purpose,
\nregard being had to the spirit of the trust and its applicability to common
\npurposes; or\n<\/p>\n
\t(d) where the original purposes, in whole or in part, were laid down by
\nreference to an area which then was, but has since ceased to be, a unit for such
\npurposes; or\n<\/p>\n
\t(e) where the original purposes, in whole or in part, have,  since they
\nwere laid down,–\n<\/p>\n
\t(i) been adequately provided for by other means, or\n<\/p>\n
\t(ii) ceased, as being useless or harmful to the community, or \t(iii)
\nceased to be, in law, charitable, or\n<\/p>\n
\t(iv) ceased in any other way to provide a suitable and effective method of
\nusing the property available by virtue of the trust, regard being had to the
\nspirit of the trust.”\n<\/p>\n
\t47. Section 92 CPC is in respect of “public charities”, but the suit has
\nbeen filed by the plaintiffs as the worshippers of the Temple, the first
\nplaintiff is the President of Thirukurungudi Saiva Velalar Organisation and the
\nsecond plaintiff is a worshipper of Lord Siva. In such circumstances,  the
\nargument advanced by learned counsel for the plaintiffs that without permission
\nunder Section 92 CPC, the suit is not maintainable, does not merit acceptance.
\nSo, the decisions reported in AIR 1967 SC 1415 (cited supra) and Vol.88 L.W. 577
\n(cited supra) are not applicable to the facts of the present case.\n<\/p>\n
\t48. Admittedly, the suit is filed under Order 1 Rule 8 CPC and the
\npermission was accorded by Court and the suit has been contested by the
\nplaintiffs and during the pendency of the proceedings, the first plaintiff
\nChockalingam died and the second plaintiff is proceeding with the suit. In such
\ncircumstances, I am of the view that the worshipper has a right to worship the
\nDeity “Pakkam Nindrar” and the right to worship at a particular place is equal
\nto the right to worship and so, I am of the view that the plaintiffs have locus-
\nstandi to file the suit.\n<\/p>\n
\t49. Learned counsel for the plaintiffs also submitted that the plaintiffs
\nhave filed the suit in a representative capacity and also obtained an ex-parte
\norder of injunction before the trial Court, against which, Civil Revision
\nPetition has also been preferred before this Court. At this juncture, the
\nGovernment passed G.O.(Ms).No.55, dated 8.4.2005, ratifying the action of
\nshifting of Lord Shiva and so, the Division Bench of this Court as found in
\nEx.C-5 judgment, dated 3.10.2005 in Writ Appeal Nos.1204 to 1207 of 2005, 1275
\nof 2005, W.P.Nos.23178, 23193, 704, 1002 and 2246 of 2004, 18450 of 2005 and
\nC.R.P.PD.Nos.27  and 28 of 2004,  passed an order observing that the parties
\ninterested can agitate their rights before the trial Court and in paragraph 6,
\nthe Division Bench further observed as follows:\n<\/p>\n
\t“7.    … …. Since the suit is filed in a representative capacity under
\nOrder 1 Rule 8 of the Code of Civil Procedure, it is needless to state that any
\nperson in whose behalf or for whose benefit the suit is instituted or defended
\nmay apply to the court to be made as a party to the court (See Order 1 Rule 8(3)
\nof the CPC). Under these circumstances, if any person comes before the court
\nwith an application under Order 1 Rule 8(3) of the Code to get himself
\nimpleaded, the learned trial Judge is directed to take up that application also
\nand dispose of the same in accordance with law within 15 days from the date of
\nreceipt of such application.”\n<\/p>\n
\t50. So, learned counsel for the plaintiffs submitted that the Division
\nBench of this Court in the said Ex.C-5 judgment, came to the conclusion that the
\nplaintiffs have filed the suit in a representative capacity and  hence, it is
\ncontended by the learned counsel for the plaintiffs that the plaintiffs are
\ncompetent to institute the suit in a representative capacity. But now, the
\ndefendants are not entitled to take up the defence that the plaintiffs are not
\nthe worshippers of the Temple and the plaintiffs have no locus-standi to file
\nthe suit.\n<\/p>\n
\t51.  The defendants further contend that there is no pleading in the
\nplaint that they are the worshippers. To substantiate this point, learned
\ncounsel for the plaintiffs relied upon a decision of this Court reported in 1999
\nSAR [Supreme Appeals Reporters] (Civil) 472 (Sardul Singh Vs. Pritam Singh and
\nothers) and 1998 SAR (Civil) 544 (Ganesh Shet Vs. Dr.C.S.G.K.Setty and others),
\nin which decisions, it is held by the Apex Court as follows:
\n1999 SAR (Civil) 472:  (Sardul Singh Vs. Pritam Singh and others):\n<\/p>\n
    “12.  … It is well-settled that notwithstanding the absence of pleadings
\nbefore a court or authority, still if an issue is framed and the parties are
\nconscious of it and went to trial on that issue and adduced evidence and had an
\nopportunity to produce evidence or cross examine witnesses in relation to the
\nsaid issue, no objection as to want of a specific pleading can be permitted to
\nbe raised later. …”\n<\/p>\n
1998 SAR (Civil) 544(Ganesh Shet Vs.Dr.C.S.G.K.Setty and others):
\n\t“Held: While normally it is permissible to grant relief on the basis of
\nwhat emerges from the evidence – even if not pleaded,  provided there is no
\nprejudice to the opposite party, such a principle is not applied in suits
\nrelating to specific performance. Other relief to be granted must be consistent
\nwith both pleading and proof in suits for specific performance. In a suit for
\nspecific performance, the plaintiff cannot be given relief under the general
\nprayer  “such other relief as this Hon’ble Court may deem fit to grant in the
\ncircumstances of the case”, in the light of Order 7, Rule 7 CPC – There is a
\ndifference between suits for specific performance and other suits.”\n<\/p>\n
\t52. It is further contended by the learned counsel for the plaintiffs that
\nas per Ex.C-5 jugment of the Division Bench in the writ petitions and other
\nconnected cases, the suit filed by the plaintiffs is a comprehensive suit on the
\nissue and the “lis” involved in the suit has to be decided on merits and thus,
\nthe locus-standi of the plaintiffs had been impliedly upheld by the Division
\nBench as observed in Ex.C-5 judgment. First defendant, who accepted the verdict
\nof the Division Bench, while disposing of the batch of cases, is not at all
\nentitled to question the locus-standi of the plaintiffs to maintain the suit.\n<\/p>\n
\t53. Learned counsel for the defendants also relied upon a decision of the
\nSupreme Court reported in AIR 1964 SC 107 (Ahmad Adam Vs. Makhri), wherein the
\nApex Court held as follows:\n<\/p>\n
\t“17.    A similar result follows if a suit is either brought or defended
\nunder O.1 R.8. In that case, persons either suing or defending an action are
\ndoing so in a representative character, and so, the decree passed in such a suit
\nbinds all those whose interests were represented either by the plaintiffs or by
\nthe defendants. Thus, it is clear that in determining the question about the
\neffect of a decree passed in a representative suit, it is essential to enquire
\nwhich interests were represented by the plaintiffs or the defendants. If the
\ndecree was passed in a suit under S.92, it will become necessary to examine the
\nplaint in order to decide in what character the plaintiffs had sued and what
\ninterests they had claimed. If a suit is brought under O.1 R.8, the same process
\nwill have to be adopted and if a suit is defended under O.1 R.8, the plea taken
\nby the defendants will have to be examined with a view to decide which interests
\nthe defendants purported to defend in common with others. The decision of this
\nquestion would be material in determining the correctness of the argument urged
\nby Mr.Setalvad before us.”\n<\/p>\n
\t54. Learned counsel for the defendants further relied on a decision of
\nthis Court reported in AIR 1984 Madras 328 (P.Sivagurunatha Pillai Vs. P.Mani
\nPillai), in which, in paragraph 10, it was held by a Division Bench of this
\nCourt that the interest contemplated under Section 92 of the CPC, should be
\nreal, substantive and an existing interest though it need not be a direct
\ninterest; mere residence of the party to the suit in a village would not enable
\nthe party to claim that he is a person interested  in properties and as such,
\nentitled to maintain the action under Section 92 CPC.\n<\/p>\n
\t55. There is no quarrel over the proposition of law laid down in the above
\ndecision reported in AIR 1984 Madras 328 (cited supra). As already observed, the
\nplaintiffs are the worshippers of the Temple and even during the visit by the
\nExpert Committee of the H.R. & C.E., appointed by the Government, the plaintiffs
\nand the villagers objected for removal of the Lord Shiva and hence, they are
\nhaving interest in the Temple.\n<\/p>\n
\t56. Learned counsel for the defendants also relied upon a decision of this
\nCourt reported in Vol.52 MLJ 288 = AIR 1927 Madras 465 (Venkatachala Mudaliar
\nVs. Sambasiva Mudaliar), in which it was held as follows:
\n\t“Where an old Hindu temple with a consecrated image in it has become
\ninsanitary due to the collecting of water all round it and its being situated
\nvery near the roadway, and in the interests of the general body of worshippers a
\nvery large majority of them is for the removal of the old temple to a new site,
\nthe Court should not interfere with their discretion as what they do is,
\naccording to their notions, beneficial to the whole community.”
\nRelying on the said decision reported in Vol.52 MLJ 288 = AIR 1927 Madras 465
\n(cited supra), learned counsel for the defendants submitted that the opinion of
\nthe entire village is important than the section of the people.\n<\/p>\n
\t57. In this case, after the disposal of the cases by the Division Bench as
\nfound in Ex.C-5, D7 to D9 have been impleaded and they have put forth their case
\nthat they are supporting the case of the first defendant-Jeer. As already
\nstated, the Lord Shiva was there even during the period of Thirumangai Azhwar,
\ni.e. in 7th Century. In such circumstances, there is no need to alter the Deity
\nfrom the original place. As per the documents before this Court, even in 1911
\nand 1981, the Temple Consecration (Kumbhabhishekam) was performed and at that
\npoint of time, no one raised their little finger for removal of the Idol of Lord
\nShiva\/Lord Mahendragirinathar from the original place.  Only in 1996 after “Deva
\nPrasannam” was conducted, the villagers raised their representation\/objection in
\n2003 and before that, no one gave any representation\/objection either to the
\nH.R. & C.E. Department or to the first defendant-Jeer of the Mutt and no
\ndocument has been filed before this Court in this regard.\n<\/p>\n
\t58. Learned counsel for the defendants relied on a decision of the Full
\nBench of this Court reported in AIR 1930 Madras 817 (Abdul Sac. Vs. Sundara
\nMudaliar), wherein, the Full Bench observed as follows:
\n\t“Whether a defendant against whom a suit is dismissed continues or ceases
\nto be party within the meaning of S.47 CPC  does not entirely depend upon
\nwhether his name has been struck off from or retained on the record, and
\nconsequently in order to determine whether a particular defendant against  whom
\nthe suit is dismissed is or is not a party to the suit within the meaning of
\nS.47, it is the duty of the Court not only to refer to the decree but also to
\njudgment and pleadings.”\n<\/p>\n
\t“Where a suit is dismissed against a person on the ground that he was
\nimproperly impleaded as party having no concern with the suit, such a person
\ndoes not remain a party to the suit for the purposes of S.47, notwithstanding
\nwhether his name has or has not been removed from record. In such cases, it is
\nthe duty of the Court to strike out the name of the party improperly impleaded;
\nit is quite wrong procedure to dismiss the suit as against him. It is quite
\notherwise in the case where the plaintiff abandons his claim against the
\ndefendant and the suit is dismissed as against him. In the latter case, the
\ndefendant is not a person to whom Order 1 Rule 10(2) CPC applies.”\n<\/p>\n
\t59. Relying on the said decision of the Full Bench, it is contended that
\nS.A.(MD).Nos.176 and 646 of 2010 filed by D5 and D6, is not maintainable, since
\nthe trial Court came to the conclusion that they are not necessary parties to
\nthe suit, even though they have filed impleading petition to implead themselves
\nas parties to the suit, ultimately, as stated above, after trial, the trial
\nCourt came to the conclusion that D5 and D6 are not necessary parties to the
\nsuit, against which, D5 and D6 did not prefer any First Appeal. The trial Court
\ndecreed the suit as prayed for by the plaintiffs, against which, First
\ndefendant-Jeer and D2, D3 and D7 to D9 alone preferred First Appeals, whereas D5
\nand D6 did not prefer any First Appeal. The first appellate Court allowed those
\nFirst Appeals and dismissed the prayer sought for in the suit. Now, D5 and D6
\nhave filed the Second Appeals in S.A.(MD).Nos.176 and 646 of 2010 and it is the
\ncontention of the learned counsel for the first defendant-Jeer that those Second
\nAppeals by D5 and D6 are not maintainable.\n<\/p>\n
\t60. In reply, learned counsel for D5 and D6 submitted that the suit had
\nbeen filed by the plaintiffs, and D5 and D6 have impleaded themselves as parties
\nin support of the prayer sought for by the plaintiffs and they are also
\nsupporting some portion of the plaintiff’s pleadings. But however, the trial
\nCourt decreed the suit as prayed for by the plaintiffs, even though it was held
\nthat D5 and D6 are not necessary parties and since the object and aim of D5 and
\nD6 had been fulfilled and since no judgment and decree had been rendered against
\nD5 and D6, no First Appeal was filed as against the very findings rendered by
\nthe trial Court against D5 and D6. Therefore, learned counsel for D5 and D6
\nsubmitted that there is no ground for fling the First Appeal by the D5 and D6
\nbefore the first appellate Court and since the First Appeals by the other
\ndefendants, namely D1 to D3 and D7 to D9, have been allowed, the relief sought
\nfor by D5 and D6 in the written statement, has ultimately been negatived by the
\nfirst appellate Court and only thereafter, the right to appeal by D5 and D6,
\narises, and hence, D5 and D6 have filed the respective Second Appeals, and
\nhence, they are entitled to maintain those Second Appeals. He further submitted
\nthat since judgment and decree had been rendered against D5 and D6 before the
\ntrial Court, no First Appeal was preferred by them  as there was no need to file
\nthe First Appeals.\n<\/p>\n
\t61. The said decision of the Full Bench reported in AIR 1930 Madras 817
\n(cited supra), is not applicable to the facts of the present case, because, in
\nthat decision, D2 claims an independent title and he has endorsed on the plaint
\nthat he does not derive his title from the mortgagor but quite independently of
\nhim and therefore, the trial Court held that he is not a necessary party to the
\nsuit and the suit must be therefore dismissed with costs against D2 to D6
\ntherein, and it also observed that the plaintiffs will get a decree against the
\nother defendants in the suit and the suit was accordingly dismissed as against
\nD2 to D6. But, in the instant case, D5 and D6 impleaded themselves as parties to
\nthe suit, and their prayer was to direct the defendants to restore the Idol of
\nLord Shiva in the original place within stipulated time as may be granted by
\nCourt. The trial Court decreed the suit as prayed for by the plaintiffs, even
\nthough it came to the conclusion that D5 and D6 are not necessary parties to the
\nproceedings. Since the object of D5 and D6 had been ultimately fulfilled, it is
\nstated that they have not preferred any First Appeal. Since the First Appeals
\nhave been filed only by D1 to D3 and D7 to D9, which have also been allowed,
\nresulting in the dismissal of the suit, now D5 and D6 have preferred these
\nSecond Appeals.\n<\/p>\n
\t62. Learned counsel for First defendant-Jeer also submitted that the suit
\nis hit by the principles of ‘res-judicata’ and in support of the same, he relied
\nupon the following decisions of the Supreme Court:\n<\/p>\n
(i) AIR 1964 SC 993 (Arjun Singh Vs. Mohindra Kumar) :\n<\/p>\n
\tHeld: Scope of the principle of res-judicata is not confined to what is
\ncontained in Section 11 CPC, but is of more general application. Again, res-
\njudicata could be as much applicable to different stages of the same suit as to
\nfindings on issues in  different suits. If the court which rendered the first
\ndecision was competent to entertain the suit or other proceeding, and had
\ntherefore competency to decide the issue or matter, the circumstance that it is
\na tribunal of exclusive jurisdiction or one from whose decision no appeal lay,
\nwould not by themselves negative the finding on the issue by it being res-
\njudicata in later proceedings. Where the principle of res-judicata is invoked in
\nthe case of the different stages of proceedings in the same suit, the nature of
\nthe proceedings, the scope of the enquiry which the adjectival law provides for
\nthe decision being reached, as well as the specific provisions made on matters
\ntouching such decision are some of the material and relevant factors to be
\nconsidered before the principle is held applicable.”\n<\/p>\n
Relying on the said decision reported in AIR 1964 SC 993 (cited supra), learned
\ncounsel for First defendant-Jeer submitted that the scope of the principle of
\nres-judicata, is not confined to what is contained in Section 11 CPC, but is of
\nmore general application; again res-judicata could be as much applicable to
\ndifferent stages of the same suit as to findings on issues in different suits.
\nHe further submitted that the trial Court and the first appellate Court came to
\nthe conclusion that D5 and D6 are not necessary parties to the suit, and hence,
\nD5 and D6 are not entitled to file any Second Appeal. Though there is no quarrel
\nover the proposition of law laid down in the said decision, but the same is not
\napplicable to the facts of the present case.\n<\/p>\n
  \t (ii) AIR 1977 SC 34 (J.Narasimha Vs. A.S.Krishna & Co.)
\n\t“3. This appeal is only by the first defendant (appellant). The second
\ndefendant, whose interests are affected by the decree, has not preferred any
\nappeal against the decree. That being the position, the appellant cannot be
\nheard to contest the decree in view of the admitted position that he had
\nexecuted the sale agreement and had received part consideration. At any rate, he
\ncannot question the agreement. The finding that the entire suit property is the
\nself-acquired property of the appellant cannot be contested by him in this
\nappeal. The real person who should be aggrieved by this finding has not even
\nchosen to appeal against the decree. There is, therefore, no merit in the
\nobjection taken by the learned counsel with regard to the character of the suit
\nproperty.”\n<\/p>\n
As per this decision, the appeal therein was only by D1 and D2, whose interests
\nare affected by the decree, has not preferred any appeal against the decree, and
\nthat being the position, it was held that the appellant-First defendant therein
\ncannot be heard to contest the decree in view of the admitted position that he
\nhad executed the sale agreement and had received part consideration. In the case
\non hand, no decree has been passed against D5 and D6 and hence, the said
\ndecision reported in  AIR 1977 SC 34 (cited supra), is not applicable to the
\nfacts of the present case.\n<\/p>\n
\t(iii)  AIR 1996 SC 869 (Mahesh Chand Sharma Vs. Raj Kumari Sharma):
\n   \t“32. The plea of limitation raised by the defendant-appellant cannot be
\nupheld for more than one reason. The reasons are the following:\n<\/p>\n
\t(a) Among the issues framed in the suit, Issue No.5 pertains to the plea
\nof limitation put forward by Defendant Nos..2 to 5. The issue runs thus:-
\n“Whether the suit is within time?” On this issue, the learned single Judges
\n(Trial Judge) recorded a finding in favour of the plaintiff. He found the suit
\nwithin limitation. The decision on the above issue was not contested by the
\nparties before the Division Bench. The Division Bench has expressly recorded
\nthat ‘the decisions on the above issues (Issues 1,2,3,4,5 and 6) are not
\ncontested by the parties in this appeal and, therefore, the findings of the
\nlearned single Judge are hereby affirmed”. Once this is so, it is not open to
\nthe third defendant-appellant in these appeals to seek to re-agitate the said
\nplea. We cannot allow him to do so. A party who abandons a particular plea at a
\nparticular stage cannot be allowed to re-agitate in appeal.”\n<\/p>\n
This citation is not applicable to the facts of the present case.\n<\/p>\n
\t63. It is further submitted by learned counsel for First defendant-Jeer
\nthat the findings  rendered by the Court, operate as ‘res-judicata’ between the
\nco-defendants. In this regard, the following decisions are relied on by the
\ncounsel for the parties:\n<\/p>\n
(i)  AIR 1970 SC 809 (S.P.Misra Vs. Babuaji):\n<\/p>\n
\tHeld: that the question whether the suit lands appertained to the village
\nof the deity became res sub judice on filing of first appeal and since this
\nquestion was not finally decided between deity and other contesting defendants
\nin appeal in the absence of any decision by High Court on merits on this
\nquestion there was no final decision against deity. Thus there was no question
\nof res judicata between co-defendants. ”\n<\/p>\n
(ii) AIR 1974 SC 749 (Iftikhar Ahmed Vs. Syed Meharban Ali):
\n\t“The rule of res judicata while founded on ancient precedent is dictated
\nby a wisdom and the application of the rule should be influenced by no technical
\nconsiderations of form, but by matter of substance within the limits allowed by
\nlaw. The raison d’etre of the rule is to confer finality on decisions arrived at
\nby competent Courts between interested parties after genuine contest.”
\n\t“It is now settled that for a judgment to operate as res judicata between
\nor among the co-defendants, it is necessary to establish that  (1) there was a
\nconflict of interest between the co-defendants (2) that it was necessary to
\ndecide the conflict in order to give relief which the plaintiff claimed; and (3)
\nthat the Court actually decided the question. If thus a previous decision can
\noperate as res judicata between the co-defendants under certain conditions,
\nthere is no reason why a previous decision should not operate as res judicata
\nbetween the co-plaintiffs is the same conditions are mutatis mutandis
\nsatisfied.”\n<\/p>\n
(iii) 1995 (3) SCC 693 (Mahboob Sahab Vs. Syed Ismail):
\n\t“8.  …. Under Section 11 CPC when the matter has been directly or
\nsubstantially in issue in a former suit between the same parties or between
\nparties under whom they or any of them claimed, litigating under the same title,
\nthe decree in the former suit would be res-judicata between the plaintiff and
\nthe defendant or as between the co-plaintiffs or co-defendants. But for
\napplication of this doctrine between co-defendants four conditions must be
\nsatisfied, namely that (1) there must be a conflict of interest between the
\ndefendants concerned; (2) it must be necessary to decide the conflict in order
\nto give the reliefs which the plaintiff claims; (3) the question between the
\ndefendants must have been finally decided; and (4) the co-defendants were
\nnecessary or proper parties in the former suit.   ….  ….  if a plaintiff
\ncannot get at his right without trying and deciding a case between co-
\ndefendants, the Court will try and decide the case, and the co-defendants will
\nbe bound by the decree. But if the relief given to the plaintiff does not
\nrequire or involve a decision of any case between co-defendants, the co-
\ndefendants will not be bound as between each other.”\n<\/p>\n
\t64. There is no quarrel over the propositions of law laid down in the
\nabove two decisions reported in AIR 1970 SC 809 and AIR 1974 SC 749 (both cited
\nsupra). But these citations are not applicable to the facts of the present case,
\nbecause, the trial Court and the first appellate Court came to the conclusion
\nthat D5 to D9 are not necessary parties for adjudication of the suit.
\nAdmittedly, no First Appeal has been preferred by D5 and D6, whereas D1 to D3
\nand D7 to D9 have preferred First Appeals, since they are supporting the case of
\nFirst defendant-Jeer, and since the suit was decreed. The First Appeal preferred
\nby D7 to D9 was allowed along with the First Appeals preferred by D1 to D3.\n<\/p>\n
\t65. Learned counsel for First defendant-Jeer submitted that without filing
\nthe First Appeal, D5 and D6 are not entitled to file Second Appeals. To
\nsubstantiate this submission, he relied on the following decisions of the
\nSupreme Court:\n<\/p>\n
(i) AIR 1982 SC 98 (Choudhary Sahu Vs. State of Bihar):\n<\/p>\n
\t“Where the Collector on the basis of the material placed before him
\nallowed certain units to the various landholders who feeling aggrieved went up
\nin appeal before the Commissioner of the Division but the State of Bihar
\nsubmitted to the order and did not go up in appeal nor did it file cross-
\nobjection,
\n\t held, committed a mainfest error in reversing the finding regarding
\nallotment of units to the various appellants (landholders) in the absence of any
\nappeal by the State of Bihar when the same had become final and rights of the
\nState of Bihar had come to an end to that extent by not filing any appeal or
\ncross-objection within the period of limitation. On the strength of the first
\npart of sub-clause (1) of Rule 22 of Order 41 CPC, the State of Bihar could only
\nsupport the decree not only on the grounds decided in its favour but also on the
\ngrounds decided against it. The Commissioner however, could not set aside the
\nfindings in favour of the appellant on the strength of O.41 R.22 (1).”
\n\t“Nor was the Commissioner empowered to do it by invoking O.41 R.33, CPC as
\nthe Rule did not confer an unrestricted right to re-open decrees which had
\nbecome final merely because the appellate Court did not agree with the opinion
\nof the Court appealed from.”\n<\/p>\n
(ii) AIR 2003 SC 1682 (Shankar Popat Gaidhani Vs. Hiraman Umaji More):
\n\t“12. The plaintiff, as noticed hereinbefore, did not question the judgment
\nand decree passed by the Trial Court. Evidently, the Court did not grant a
\ndecree for recovery of possession so far as the suit land is concerned. In that
\nview of the matter, the High Court, in our opinion, committed a serious error in
\ngranting a relief in favour of the plaintiff in an appeal filed by Defendant
\nNo.1 purporting to modify Relief (a), as aforementioned, particularly in view of
\nthe fact that amongst others, the Appellant claimed himself to be in physical
\npossession of the lands in question. The Appellant, indisputably was not a party
\nto the said agreement for sale.\n<\/p>\n
\t12. The High Court also could not have exercised its jurisdiction in
\nissuing the said direction even under Order 41 Rule 33 of the Code of Civil
\nProcedure inasmuch the said provision could not be invoked by one respondent as
\nagainst another as therefor it was obligatory on the part of the plaintiff to
\nfile a cross objection in terms of Order 41, Rule 22 of the Code of Civil
\nProcedure and give notice in relation thereto to the parties who claimed
\nindependent possession over the suit land.”\n<\/p>\n
(iii) AIR 1962 SC 630 (Union of India Vs. P.K.More):\n<\/p>\n
\t“When an improper conduct is alleged, it must be set out with all
\nparticulars. A plaintiff cannot complain if general allegations made by him in
\nthe plaint are answered by equally general allegations in the written statement.
\n\tWhere the plaint alleged that the order of removal of the plaintiff from
\nservice was in violation of Articles 14 and 16 of  the Constitution inasmuch as
\nthe plaintiff was arbitrarily picked up and sacked and the defendant answered
\nthe allegation in its written statement by stating that the defendant denied
\nthat the order of removal was in violation of Articles 14 and 16 of the
\nConstitution:\n<\/p>\n
\tHeld, that, in the absence of the particulars in the plaint all that the
\ndefendant could do would be simply to deny that there had been discrimination.
\nWhen the defendant in its written statement said that there had been no
\nviolation of Articles 14 and 16 of  the Constitution, it meant that there had
\nbeen no arbitrary or hostile discrimination as alleged in the plaint; otherwise
\nof course, the written statement would be meaningless. In such a state of the
\npleadings, it could not be said that the defendant had admitted that there had
\nbeen discrimination.”\n<\/p>\n
(iv) AIR 1950 Bombay 161 (Rammohanrai Vs. Somabhai) (Division Bench of the
\nBombay High Court):\n<\/p>\n
\t“9.   … Under Order 41 Rule 22 CPC, a party can file any cross-objection
\nto a decree which could have been taken by way of appeal. Where a party cannot
\nappeal from a decree, because nothing is decided against him, he cannot file any
\ncross-objections to it. The cross-objections must also be in respect of
\nsomething decided by the particular decree from which the appeal is preferred.”\n<\/p>\n
\t66. Learned Senior Counsel appearing for D7 to D9 submitted that D5 and D6
\nought to have filed Cross Appeals against the findings rendered against them by
\nthe trial Court. At this juncture, it is appropriate to consider the decision
\nrelied on by learned counsel for D5 and D6, i.e. the judgment of the Supreme
\nCourt reported in AIR 2003 SC 1989 (Banarsi Vs. Ram Phal), wherein, the Apex
\nCourt observed as follows:\n<\/p>\n
\t“8.  … No appeal lies against a mere finding. It is significant to note
\nthat both Sections 96 and 100 of the CPC provide for an appeal against decree
\nand not against judgment.”\n<\/p>\n
\t“9.     ….. Thus it is clear that just as an appeal is preferred by a
\nperson aggrieved by the decree so also a cross-objection is preferred by one who
\ncan be said to be aggrieved by the decree. A party who has fully succeeded in
\nthe suit can and needs to neither prefer an appeal nor take any cross-objections
\nthough certain finding may be against him. Appeal and cross-objection – both are
\nfiled against decree and not against judgment and certainly not against any
\nfinding recorded in a judgment. This was well-settled position of law under the
\nunamended CPC.”\n<\/p>\n
\t“12.  …. No compensation or any other relief including the relief of
\nrefund shall be granted by the Court unless it has been specifically claimed in
\nthe plaint by the plaintiff. …”\n<\/p>\n
\t67. From the said decisions relating to filing of Appeals\/Cross-objections
\nunder the CPC, it is clear that just as an appeal is preferred by a person
\naggrieved by the decree, so also a cross-objection is preferred by one who can
\nbe said to be aggrieved by the decree. A party who has fully succeeded in the
\nsuit can and needs to neither prefer an appeal nor take any cross-objections
\nthough certain finding may be against him. Hence, the contention made by learned
\ncounsel for D5 and D6 that only the finding is against them, and therefore,
\nthere is no need to file any First Appeal, merits acceptance.\n<\/p>\n
\t68. As already discussed, as the plaintiffs are the worshippers and the
\nright to worship is a civil right, they are entitled to maintain the suit and
\nsince the right of the worshippers had been disturbed and objected, they have
\nlocus-standi to file the suit. Substantial question of law (ii) is answered in
\nthe above terms.\n<\/p>\n
\t69. Substantial questions of law (iv), (vi), (vii) and (ix) :\n<\/p>\n
 \t(iv) Whether the lower appellate Court is justified in holding that the
\nshifting of the Idol Lord Shiva was done on the basis of the Deva Prasannam,
\nwithout any reference to the Agama Saastrams ?\n<\/p>\n
\t(vi)  Whether the lower appellate Court is right in holding that the
\nshifting of the Idol of Lord Shiva is correct and it is in accordance with Agama
\nSaastras, without making it clear the relevant Agama Saastras to that effect  ?\n<\/p>\n
\t(vii) Whether the lower appellate Court is right in allowing the First
\nAppeal, when admittedly the Idol of Lord Shiva was shifted and the defendants
\nfailed to establish that the shifting of Idol of Lord Shiva was in accordance
\nwith Agama Saastras or other religious text ?\n<\/p>\n
\t(ix) Whether the lower appellate Court  is right  in placing the burden on
\nthe appellants to prove  that the shifting of Lord Shiva is against the Agama
\nSaastras ?\n<\/p>\n
\tThe above four substantial questions of law deal with the correctness of
\nthe removing and shifting of the Idol of Lord Shiva from the original place to
\nnew place.\n<\/p>\n
\t70. The original place of Idol of Lord Shiva–Mahendragirinathar before
\nremoval, is admitted. Learned counsel for the plaintiffs submitted that the Lord
\nShiva is mentioned as “Pakkam Nindrar” and the Temple has been constructed from
\ntime immemorial, which is evidenced by the recitals of Thirumangai Azhwar as:
\n @mf;Fk;g[y[padjS KilahutbuhUth;\n<\/p>\n
 gf;;fk;epw;fepd;w gz;gU:h;BghYk;\n<\/p>\n
 jf;fkuj;jpd; jhH;rpidBawp jha;thapy;\n<\/p>\n
 bfhf;fpd;gps;is bts;spwt[z;Zk; FWA;FoBa@
\nSo, the Idol of Lord Shiva is not a later construction as alleged by the
\ndefendants. At this juncture, learned counsel for the plaintiffs culled out a
\nportion of the oral and documentary evidence and submitted that as per the
\nevidence of D.W.4 Narayanan, who is the “Sri Kariyam” (Manager) of the Jeer
\nMutt, himself admitted that the idol of Lord Shiva is there for more than 200
\nyears.\n<\/p>\n
\t71. In this regard, it is appropriate to consider the findings of the
\nfirst appellate Court, which is the last fact finding Court, as this Court has
\npowers to re-appreciate the oral and documentary evidence under Section 103 CPC.
\nSection 103 CPC reads as follows:\n<\/p>\n
“Section 103 CPC: Power of High Court to determine issue of fact.–In any second
\nappeal, the High Court may, if the evidence on the record is sufficient,
\ndetermine any issue necessary for the disposal of the appeal,–\n<\/p>\n
\t(a) which has not been determined by the lower Appellate Court or both by
\nthe Court of first instance and the lower Appellate Court, or<\/p>\n
\t(b) which has been wrongly determined by such Court or Courts by reason of
\na decision on such question of law as is referred to in Section 100.”\n<\/p>\n
\t72. Learned counsel for the plaintiffs submitted that the first appellate
\nCourt has not heard the arguments of the plaintiffs, who are the respondents in
\nthe first appellate Court and it has not considered the petitions seeking for
\nsubstitution of parties, in I.A.No.130 of 2009 in A.S.No.29 of 2007, I.A.No.133
\nof 2009 in A.S.No.37 of 2007, I.A.No.136 of 2009 in A.S.No.63 of 2007 and
\nI.A.No.142 of 2009 in A.S.No.37 of 2007 in proper perspective and the first
\nappellate Court has simultaneously disposed of the said I.As. along with the
\nrespective First Appeals. So, the judgment of the first appellate Court is
\nperverse and this Court has ample powers under Section 103 CPC to interfere with
\nthe findings of the first appellate Court, as they are perverse.\n<\/p>\n
\t73. Furthermore, during the pendency of Tr.O.Ps., without giving
\nopportunity to the plaintiffs\/respondents in the first appellate Court to put
\nforth their case, the learned first appellate Judge hastily disposed of the
\nFirst Appeals, along with the above said I.As., simultaneously, without
\nconsidering the materials available on record. In such circumstances, I am of
\nthe view that this Court has ample powers to re-appreciate the oral and
\ndocumentary evidence, as per the provisions of Section 103 CPC.\n<\/p>\n
\t74. At this juncture, this Court has to consider the oral and documentary
\nevidence. Regarding the existence of the Temple, D.W.4 in his cross-examination
\nstated that the Shiva Temple has been constructed 200 years ago, but the
\noriginal Temple was constructed 1300 years ago. In his cross-examination, D.W.4
\nfairly conceded that the Lord Shiva-Mahendragirinathar came into existence 200
\nyears ago, and he also mentioned about the Lord Pakkam Nindrar, i.e. the present
\nLord Shiva in the original position. In his cross-examination he has fairly
\nconceded that in 1911, there was a “Kumbhabhishekam” (consecration ceremony of
\nthe Temple) and at that time, it was also mentioned as “Lord Pakkam Nindrar”.
\nSo, learned counsel for the plaintiffs submitted that the existence of Lord Siva
\nTemple in the place where it was originally situated as per the version of
\nD.W.4, is much prior, nearly 200 years ago. After that, several
\n“Kumbhabhishekams” have been performed and the Temple Trustees have not taken
\nsteps to remove the Idol of Lord Shiva.\n<\/p>\n
\t75. In this connection, it is appropriate to consider the documents filed
\nby the defendants. In Ex.B-3 which is the “Thirukurungudi Divya Sthala Malar”,
\nin page 47, it is stated that the Lord Shiva is in the Vaishnavaite Temple while
\npraising the Lord Vishnu. It is stated therein as follows:
\n“mf;Fk;g[y[padjS KilahutbuhUth;\n<\/p>\n
 gf;;fk;epw;fepd;w gz;gU:h;BghYk;\n<\/p>\n
 jf;fkuj;jpd; jhH;rpidBawp jha;thapy;\n<\/p>\n
 bfhf;fpd;gps;is bts;spwt[z;Zk; FWA;FoBa@
\n\tbfhf;fpd; Fl;oahdJ (jdf;F Vwj;) jFe;jjhd xU kuj;jpDila jhH;e;j fpisapy;
\nVwp jha;f;bfhf;fpd; thapypUf;fpw *bts;spwh* vd;Dk; rhjp kPid cz;zg;bgw;w
\njpUf;FW’;Fobad;Dk; jykhdJ–vYk;iga[k; g[ypapd; Bjhiya[k; cilatuhd rptgpuhdhfpw
\nxUth; mUBfapUf;f (nlA;bfhLj;J) vGe;jUspapUf;fpd;w rPyFzKilauhd bgUkhSila
\njpt;aBjrkhk;@
\nEx.B-3 came into existence in 1967 much prior to the litigation. Furthermore, it
\nwas marked through D.W.1.\n<\/p>\n
\t76. Learned Senior Counsel for D7 to D9 submitted that in the book titled
\n“Thiruvaimozhi”, it was mentioned that always, the Lord Vishnu has given His
\nright side of the body to the Lord Shiva. Likewise, as per the Divine Hymn of
\nthe Saint Thirumangai Azhwar, “mf;Fk;g[y[padjS KilahutbuhUth; gf;;fk;epw;fepd;w
\ngz;gU:h;BghYk; jf;fkuj;jpd; jhH;rpidBawp jha;thapy; bfhf;fpd;gps;is
\nbts;spwt[z;Zk; FWA’;FoBa@, which means that the Lord Shiva is taking part and is
\nbesides the Lord Vishnu in the village called Thirukurungudi. But the above
\nreliance on the book “Thiruvaimozhi” does not merit acceptance, because, as per
\nthe version in the Divine Hymn of the Saint Thirumangai Azhwar, as quoted above,
\nthe Lord Shiva was in existence in the village Thirukurungudi as “Lord Pakkam
\nNindrar” to the Lord Vishnu.\n<\/p>\n
\t77. Nextly, learned counsel for the plaintiffs submitted that in Ex.B-4
\nGazetteer, the Lord Pakkam Nindrar has been mentioned even in 1879 Gazetteer and
\nsubsequently, the said Ex.B-4 Gazetteer was re-published  on 12.3.1916. This
\nshows that even prior to 1879, the Lord Shiva is in the place from where it was
\nremoved.\n<\/p>\n
\t78. Learned counsel for the defendants 7 to 9 submitted that Ex.B-4
\nGazetteer is not  admissible in evidence. To substantiate the same, learned
\ncounsel for the defendants 7 to 9 relied on the decisions reported in AIR 1928
\nPrivy Council 10 (Martand Rao Vs. Malhar Rao) and AIR 1995 SC 167 = 1995 Supp
\n(1) SCC 485 (Bala Shankar Maha Shankar Bhattjee Vs. Charity Commr. Gujarat). On
\nthe other hand, learned counsel for the plaintiffs relied upon the decision of
\nthe Supreme Court reported in AIR 1967 SC 256 (Srinivas R.Das Vs. Surjanarayan)
\nand submitted that Ex.B-4 is admissible in evidence.\n<\/p>\n
\t79. It is worthwhile to note the Dictionary meanings of “Gazette” and
\n“Gazetteer”, as relied on by learned counsel for D7 to D9, and extracted
\nhereunder:\n<\/p>\n
I. “The Chambers Dictionary: by Allied Chambers (India) Limited, New Delhi:
\nGazette:\n<\/p>\n
\t(i) An official newspaper containing lists of Government appointments,
\nlegal notices, despatches, etc.;\n<\/p>\n
\t(ii) a title used for some newspapers to publish or mention in a gazette;
\n\t(iiii to announce or confirm (a person’s appointment or promotion), esp.
\nin an official gazette;\n<\/p>\n
Gazetteer:\n<\/p>\n
\t(i) a geographical dictionary, a reference book containing alphabetical
\nentries for places of the world, with maps, etc;\n<\/p>\n
\t(ii) a writer for a gazette, an official journalist , to describe in a
\ngazetteer;”\n<\/p>\n
II. Mitra’s Legal & Commercial Dictionary: Sixth Edition, 2006: by Tapash Gan
\nChoudhury, Advocate, High Court, Calcutta: Published by Eastern Law House,
\nKolkata and New Delhi :\n<\/p>\n
“Gazette: It is a publication of an official character which contains Government
\nnotifications, lists of public appointments and honours, legal notices, etc.,
\nwhich are presumed to be genuine.\n<\/p>\n
\tThe official publication of news of all kinds the Government desire to
\nmake known to the public. (General Clauses Act, S.3(39)).
\nGazetteer:\n<\/p>\n
\tA dictionary which contains a historical account, or the general
\ndescription of any place, district or province; a dictionary of geographical
\nnames.”\n<\/p>\n
\t80. Now, it would be appropriate on the part of this Court to consider the
\ndecisions relied on by the learned counsel for both sides to decide whether
\nEx.B-4 Gazetteer is admissible in evidence. In AIR 1967 SC 256  (Srinivas R.Das
\nVs. Surjanarayan), the Apex Court observed as follows:
\n\t“26. It is urged for the appellant that what is stated in the Gazetteer
\ncannot be treated as evidence. These statements in the Gazetteer are not relied
\non as evidence of title but as providing historical material and the practice
\nfollowed by the Math and its head. The Gazetteer can be consulted on matters of
\npublic history.” (emphasis supplied)<\/p>\n
\t81. In AIR 1928 Privy Council 10 (Martand Rao Vs. Malhar Rao), the Privy
\nCouncil held as follows:\n<\/p>\n
\t“Official reports regarding the nature of any estate are valuable and in
\nmany cases the best evidence of facts stated therein, but opinions therein
\nexpressed should not be treated as conclusive in respect of matters requiring
\njudicial determination, however eminent the authors of such reports may be.”
\nThe above citation reported in AIR 1928 Privy Council 10, relates to official
\nreports regarding the nature of any estate which are valuables and the Privy
\nCouncil held that the opinions expressed therein should not be treated as
\nconclusive in respect of matters requiring judicial determination, however
\neminent the authors of such reports may be. This citation deals with neither the
\n“gazetteer” nor the “gazette” and it only refers the official reports of the
\neminent authors. In such circumstances, this citation is not applicable to the
\nfacts of the present case.\n<\/p>\n
\t82. In AIR 1995 SC 167  = 1995 Supp (1) SCC 485 (Bala Shankar Maha Shankar
\nBhattje Vs. Charity Commr., Gujarat), the Supreme Court, while dealing  with
\nGazette of Bombay Presidency, which was also published in 1879, containing
\nhistorical material relating to the dispute whether the Temple in question
\ntherein is public or private, the Supreme Court held that it is a piece of
\nevidence under Section 45 of the Evidence Act (1 of 1872) and the Supreme Court
\nfurther held that though the said Gazette was not conclusive, the Court may
\nconsider such evidence in conjunction with the other evidence.\n<\/p>\n
\t83. While going through the above three citations, it is seen that the
\ndecision reported in AIR 1995 SC 167 = 1995 Supp (1) SCC 485 (cited supra), is
\nin respect of a “Gazette” and not in respect of a “Gazetteer”  and in that
\ndecision, the Supreme Court observed that the Gazette is admissible being
\nofficial record evidencing public affairs and the Court may presume the contents
\nas genuine and the statement contained therein can be taken into account to
\ndiscover the historical material contained therein and the facts stated therein
\nis evidence under Section 45 of the Indian Evidence Act and the Court may in
\nconjunction with the other evidence and circumstances take into consideration in
\nadjudging the dispute in question, though may not be treated as conclusive
\nevidence.  So, the learned counsel for the plaintiffs submitted that even though
\nthe Gazette is admissible in evidence, it is not a conclusive proof of evidence,
\nwhereas, the Gazetteer is not issued by the Government and so, it is not
\nadmissible in evidence. Per contra, as per the decision reported in AIR 1967 SC
\n256 (cited supra), Gazetteer cannot be treated as an evidence and the statements
\nin the Gazetteer could not be relied on as evidence of title, but as providing
\nhistorical material and the practice followed by the Math and its Head and that
\nthe Gazetteer can be consulted on matters of public history. In the present
\ncase, in Ex.B-4 Gazetteer, it is stated as follows:\n<\/p>\n
\t“A curious feature of the temple, one which is generally quoted as
\nillustrating the breadth of view of its distinguished founder, is the existence
\nwithin the Vaishnavite temple of one dedicated to Siva. Paramasivan, it is said,
\nwhilst wandering over the earth under the ban of a curse, came one day to
\nTirukkurungudi. There the god Nambi, an incarnation of Vishnu, treated him with
\nkindness and promised his visitor that he should receive equal respect with
\nhimself. So the new god was established and received the name “Pakka-nindrar”
\n“he who stands by the side.”\n<\/p>\n
\t84. Therefore, even in 1879, it was mentioned in Ex.B-4 Gazetteer about
\nthe history of Thirukurungudi Temple and in such circumstances, I am of the view
\nthat Ex.B-4 Gazetteer has to be taken as supporting evidence to decide as to
\nwhether the Lord Pakkam Nindrar, i.e. Idol of Lord Siva, was situated in the
\nVaishnavaite Temple, namely Arulmighu Azhagiya Nambirayar Temple, and so, the
\nLord Pakkam Nindrar was in existence from ancient times.\n<\/p>\n
 \t85. In Ex.B-5 is the “Kumbhabhishekam Invitation” (consecration
\ninvitation), namely, “= jpUf;FWA;Fo = !;thkp ek;gpapDila tpkhehjp $Ph;Bzhjhuz
\ngpujp&;lh gj;jpupif”@ which is of the year 1911, in which it is stated that the
\nKumbhabhishekam is also being performed for the Lord “Pakkam Nindrar”. It is
\nstated therein as follows:\n<\/p>\n
\t@ “…… epiwe;j Brhjpbts;sk; R{H;e;j ePz;l bghd;BkdpBahLk;
\nvGe;jUspapUf;fpw ek;gpapDila ”bjd;dd; FWA;Foa[s; brk;gtsf;Fd;wpid’ vd;Dk;
\ng;uthshf;a tpkhej;jpd; $Ph;BzhjhuzKk;, tPw;wpUe;j ek;gp tpkhdk; gs;spbfhz;l
\nek;gp tpkhdk;. FWA;Foty;ypj;jhahh; FWA;ifehafp tpkhdk;.
\nmf;Fk;g[ypapdjSKilahwtbuhUth; gf;fk; epw;fpd;w gf;f epd;whuhd kBcwe;jpufphpehjh;
\ntpkhdk; ……. ”\n<\/p>\n
\t86. In Ex.B-6 book called “@ifrpf g[uhzk; (gl;lh; t;ahf;ahzj;Jld;)”@, a
\ntopic is mentioned about “@ek;gpa[k; ek;ghLthDk;”@, in which, there is a
\nreference as @”mf;Fk; g[ypapd”;@.\n<\/p>\n
\t87. In Ex.B-8 which is the book titled @guk;giur; rpwg;g[@ of
\nThirukurungudi Madathipathi Sri Perarulaala Ramanuja Jeer Swamigal, was
\npublished in 1919, and it  is  the pamphlet exhibiting the importance of
\nThirukurungudi Mutt.  In  Ex.B-8, it is stated as follows:\n<\/p>\n
\t\t\t\t@”KLf;F@”\n<\/p>\n
\t1. … bghpabgUkhbsd;Dk; epd;w ek;gpf;Fk; – bgUikahfbt tPw;wpe;j
\nek;gpf;Fk; – cuBfrd; kPJ radpj;j ek;gpf;Fk; – chpikahfbt  gf;fk; epd;dhh;f;Fk;
\nfhy iguth; Kjyhd Bjth;fVshA;Fk; – gz;ghd Bfhtpy;fSf;F !;JhgpfSk; –
\nrhpiahaikj;Js;spYs;s Kh;j;jpfl;Fk;-rh!;jpug;go  glhr;rhjdq;bra;Jk;-fhpakhyhkHf
\nek;gpa[s; kfpH-fdkpF”;rpj;jpuj; Bjbuhd;wikj;Jk;-bghpa jpUkjpy;fspy;
\ngpd;dKw;wjid-bghpajha;e;J rPuhf;fp _ gypkz;lgj;jpw;-Fwpaew;wpUg;gzpfs; gjpide;J
\ngj;jp cte;j Bgud;gpdhy; cWjpaha;r; bra;Jk-MyA;Fsk; Cr;rpf; Fsbkd;DKhpy;
\nmwpatpk;klj;jpw;F ghj;jpag;gl;l-nkyhdnahpfspy; kilfSk;fl;o … ”
\nThis shows that during the tenure of 35th Jeer, His Holiness did the above works
\nand the Lord Pakkam Nindrar\/Lord Shiva, was in existence even at that time.\n<\/p>\n
\t88. Ex.B-9 is the book titled @_ mHfpaek;gp cyh jpUf;FWA;Fo@, and it was
\npublished in 1983, and in Ex.B-9, it is stated as follows:
\n@ “… tps;Skt dhkk; tpsA;FKh; – cs;skfpH;\n<\/p>\n
Bfhokfh jPh;j;jA; Fyt[jy bkd;Wtpz;Bzhh;\n<\/p>\n
ehoapiwq; RA;FWA;if ed;dfuhd-tPLbgw
\nBerpj; jyh;brhhpe;J epd;bwGgj; bjz;gpukh;\n<\/p>\n
g{rpj; jpdpBjj;Jk; bghw;gjj;jhd; – Bjrpfkhq;\n<\/p>\n
brf;fr; rpte;j brGq;Rliug; Bgjkwg;\n<\/p>\n
gf;fj;jpy; itj;j ghptpdhd; …@”\n<\/p>\n
This shows that the Lord Shiva has been in existence.\n<\/p>\n
\t89. In Ex.B-10 which is also the book titled  “@jpUf;FWA;Fo mHfpa
\nek;gpa[yh”@, published in 1981, there is a mention about the Lord
\nMahendragirinathar  “(gf;fk; epd;whh;)”.  This also shows that the Lord Shiva
\nwas in existence.\n<\/p>\n
\t90. Ex.B-11 which is the sloga @totHfpa !_g;ughjk;@, which was published
\nin 1992, it is stated as follows:\n<\/p>\n
“@jhahh; !_g;ughjk;@”\n<\/p>\n
(7) !j;BToj;ughyfphp$hgjpB!t;akhd fhuz;lg[&;fhpzp fhjl!_!;jpBjd !
\nfpU&;Bze !k;a[j f;Ughfu fhkUg b!se;jh;a g{h;z        gfte; jt !_g;ughjk;\/
\ngjt[iu
\n\t!j;BT&j;ughy-iguth; vd;w BT&j;ughyuhYk; fphp$hgjp gf;fepd;whuhd
\nrptgpuhdhYk; B!t;akhd-bjhHg;gl;ltBd?””\n<\/p>\n
\t91. In Ex.B-12 which is the book @MH;thh;fs; fhyepiy (Kjw;gFjp)@ there is
\na mention about “Thirumangai Azhwar” who was alive during 7th Century, and in
\nEx.B-12, it is stated as follows:\n<\/p>\n
\t“@… MH;thh;fsp xUfhyj;jtuhfBt jpt;atr{hprhpjk; bjspthff; TWjypfspw;
\nbgUk;ghByhh; gukgjk;bgw;w gpd;g[k; thH;e;j jpUkA;ifkd;dd; vd;Bw, Bkw;Fwpj;j
\nrhpj;jpuBtW ehk; nizj;Jf;bfhs;sj;jFk;. m jhtJ – Kd;dh; Bghe;jthW. 7-Mk;
\nEh}w;whz;od; gpw;gFjpapy; mtjhpj; Eh}w;whz;od; nilg;gFjpapy;
\njpUehlyA’;fhpj;jth;thh; vd;gjhk;”@<\/p>\n
\t92. So, those documents and evidence of the defendants through D.W.4 show
\nthat the Lord Pakkam Nindrar \/ Mahendragirinathar was in the original place
\neversince from 1911. As per the documents, it is clearly proved that the Lord
\nPakkam Nindrar was there even during the period of the Saint Thirumangai Azhwar,
\nwho recited the “Pasuram” (Divine Hymn), in which His Holiness Thirumangai
\nAzhwar has stated that “@mf;Fk;g[y[padjS KilahutbuhUth; gf;;fk;epw;fepd;w
\ngz;gUh;BghYk”; ………. FWA’;FoBa@ and hence, it could be concluded that the
\nLord Shiva Mahendragirinathar was there in Thirukurungudi even during 7th
\nCentury when the Saint Thirumangai Azhwar lived.\n<\/p>\n
\t93. In this context, learned counsel for the plaintiffs relied on the
\ndecision of the Supreme Court reported in AIR 1966 SC 605 (Ambika Prasad Vs. Ram
\nEkbal), wherein, the Apex Court held as follows:\n<\/p>\n
\t“15.  …..    The presumption of future continuance is noticed in
\nIllustration (d) of Section 114 of the Indian Evidence Act, 1872. In appropriate
\ncases, an inference of the continuity of a thing or state of things backwards
\nmay be drawn under this section, though on this point the section does not give
\na separate illustration. The rule that the presumption of continuance may
\noperate retrospectively has been recognised both in India ….  and England,
\n…… that there is no rule of evidence by which one can presume the continuity
\nof things backwards cannot be supported. The presumption of continuity weakens
\nwith the passage of time. How far the presumption may be drawn both backwards
\nand forwards depends upon the nature of the thing and the surrounding
\ncircumstances.   … ”\n<\/p>\n
In the present case, the Lord Shiva Idol\/Lord Mahendragirinathar was there from
\ntime immemorial. First defendant-Jeer failed to prove that the Lord Shiva Idol
\nwas only later addition. Since the Jeer is the competent person who has
\nsucceeded the Trusteeship of the Thirukurungudi Mutt, i.e. His Holiness Jeer is
\nthe Madathipathi, he would have possessed all the relevant documents in respect
\nof the “Sthala Puranam” and other aspects relating to the existence of the Lord
\nShiva Idol. For non-filing of those relevant documents, this Court has to draw
\nadverse inference against the authorities of the Mutt\/Jeer. So, I am of the view
\nthat the abovesaid citation reported in AIR 1966 SC 605, is squarely applicable
\nto the facts of the present case.\n<\/p>\n
\t94. Now, this Court has to consider as to whether the Deity\/Idol of Lord
\nShiva has been removed from its original place in accordance with “Agama
\nSaastras”. Admittedly, the plaintiffs have not stated about the “Agama
\nSaastras”, but defendants 1 to 3 alone raised a plea that they have to remove
\nthe Lord Shiva Idol from the place where it was originally situated till it was
\nremoved and disturbed only to instal the same in accordance with “Agama
\nSaastras”. Since the defendants 1 to 3 have raised such a plea, it is their duty
\nto prove that only in accordance with “Agama Saastras”, they have removed the
\nIdol of Lord Shiva.\n<\/p>\n
\t95. Admittedly, the first defendant-Jeer mentioned in the written
\nstatement that the Idol of Lord Shiva has been removed only as per the “Agama
\nSaastras” requirements. In this context, it is worthwhile to mention that the
\ndefendants have  never proved that they made changes in the Temple by shifting
\nthe Idol of Lord Shiva only in accordance with “Agama” principles.\n<\/p>\n
\t96. It is pertinent to note that  “Agamas” are a set of ancient texts and
\nare the guardians of the tradition. The “Agama Saastras” specify the conduct of
\nworship services, rites, rituals, and festivals and the principles and practices
\nof “Deity” worship. Thus, the “Agama Saastras” is basically concerned with the
\nattitudes, procedures and rituals of “Deity” worship in the Temples.\n<\/p>\n
\t97. At this juncture, learned counsel for the plaintiffs submitted that it
\nis true that the Temples are constructed in accordance with “Agama Saastras”;
\neven some of the ancient Temples are not constructed and the Deities were not
\nincarnated according to “Agama Saastras”, but there is one more Temple custom
\ncalled as “Sishtachar” (Virtuous practice and the practice of great people) and
\nfrom time immemorial, the authorities follow the said Temple custom-Sishtachar.
\nAdmittedly, in respect of offering “Neivediyam” (Food to Divine God), i.e. to
\nLord Vishnu, at that time, the “Bhattachariyars” (Temple Priest of Lord Vishnu)
\nquestions the “Sivachariyar” (Temple Priest of Lord Shiva) as to whether the
\nLord Shiva Had His Food, namely “Amudhu Undara” (mKJ cz;lhwh), which is the
\nTemple custom of Thirukurungudi Temple, i.e. it is a “Sishtachar”. Further, the
\nDivine Feet of Lord Vishnu, called as “Sadari”, has been handed over by
\n“Araiyars” (miwah;fs;) to “Thayaar” (Goddess Lakshmi), even though the said
\n“Sadari” is not usually touched by any other person except the “Bhattachariyars”
\nof the Lord Vishnu Deity. Learned counsel also mentioned that in so many Temples
\nin Tamil Nadu, namely Tirunelveli, Chidambaram,Tiruchendur, etc., which are
\nSaivaite Temples, the Lord Vishnu is being installed. Likewise, in
\nThirukurungudi, the Lord Pakkam Nindrar \/ Lord Shiva, had been incarnated.
\nLearned counsel culled out some portion of the plaint, regarding the existence
\nof Lord Vishnu in Saivaite Temples, and the relevant portion of the plaint reads
\nas follows:\n<\/p>\n
\t“@6.  ….. rkaj;jpdhplKk; rka bghiwia Vw;gLj;j rptd; Bfhtpy;fspy; bgUkhs;
\nrd;djpa[k;. bgUkhs; Bfhtpy;fspy; rptd; rd;djpa[k;. gy nlA;fspy; mike;Js;sd.
\ncjhuzkhf jpUbey;Btypapy; cs;s mUs;kpF bey;iyag;gh; jpUf;Bfhtpypy; rptd;
\nrd;djpf;F mUfpy; gs;sp bfhz;l bgUkhs; rd;djp cs;sJ. jpUr;bre;Jh}h; mUs;kpF
\nRg;gpukzpa Rthkp BfhtpypYk; bgUkhs; rd;djp cs;sJ.  mBjBghy; kpft[k; g[fH;bgw;w
\nrpjk;guk; jpUf;BfhtpypYk; bgUkhSf;F rd;djp cs;sJ. ne;j gHikahd mikg;ghdJ
\ngz;ghl;Lr; rpd;dkhFk;. rka xw;Wikia milahsr; rpd;dkhf fhl;Lk; rhl;rpfs; MFk;.
\n…..”@
\nAdmittedly, there is no quarrel over the said argument.\n<\/p>\n
\t98. Learned counsel for the plaintiffs submitted that Thirukurungudi is a
\nspecial Temple and it is having both Lord Shiva and Lord Vishnu Sannadhis, and
\nin the State of Tamil Nadu, in many Vaishnavaite Temples, Lord Sivan Sannadhi is
\nin existence and vice-versa, and to substantiate his argument, learned counsel
\nfor the plaintiffs relied on a judgment reported in  2009 (4) CTC 801 (Division
\nBench of this Court) (Sri Sabhanayagar Temple, Chidambaram Vs. The State of
\nTamil Nadu), and the special character of Thirukurungudi Temple is the existence
\nof Sivan Sannadhi. As already observed, in Saivaite Temples in Chidambaram,
\nTiruchendur, Tirukoshtiyur and Kancheepuram, the Lord Vishnu’s Sannadhi is in
\nexistence and hence, Thirukurungudi Temple is meant both for Saivaite and
\nVaishnavaite religious groups and these two religious groups are offering
\nworship and prayer every day and they belong to different faiths.\n<\/p>\n
\t99. It is also pertinent to note that in the written statement filed by
\nFirst defendant-Jeer, it is stated that the Temple is unique in its
\narchitectural conception and iconographic formation having three Shrines decided
\nto the Lord Vishnu, in the Standing, Sitting and Reclining Postures, all facing
\nEast as prescribed in Vaikhanasa Agama, the scripture followed in the Temple.
\nBut it has to be noted that since the Thirukurungudi Temple is a Special Temple
\nconsisting of both Saivaite and Vaishnavaite Lords, and hence, I am of the view
\nthat neither the First defendant-Jeer, nor D2 and D3 (H.R. & C.E. Authorities),
\nhave the authority or right to remove the Idol of Lord Shiva from the original
\nplace.\n<\/p>\n
\t100. It is also relevant to note as mentioned in the written statement
\nfiled by D-1Jeer, in paragraph 5, as follows:\n<\/p>\n
\t“5. The Sthala Purana has it that Lord Siva, while wandering in the
\nMahendragiri Forests, was afflicted by some curse and Sri Sundara Paripooranar,
\nthe Lord of this Temple gave Dharshan and requested Him to stay there. That is
\nwhy the great Vaishnavaite Saint Thirumangai Azhwar has sung in praise of  Lord
\nShiva and referred to His as “Pakkam Nindraar”. This expression in the Pasuram
\nis wrongly construed in the plaint as “Standing Close” overlooking the inner
\nmeaning that Siva and Vishnu are always together. …”
\nBut to prove the said contents of the written statement filed by the first
\ndefendant-Jeer, no document has been filed by the first defendant-Jeer.  But the
\ndocuments exhibited before the trial Court show that even in 1911, the Temple
\nConsecration (Kumbhabhishekam) had been performed and it is stated in the
\ndocuments that the Temple Consecration was performed for the “Vimanam of Pakkan
\nNindrar” also, along with the Vimanam of the Lord Azhagiya Nambirayar.  In such
\ncircumstances, I am of the view that the argument advanced by learned counsel
\nfor the defendants that the Lord Shiva had been removed from the Hill Top and
\ninstalled in front of the Veetrirundha Nambi, is an unacceptable one.\n<\/p>\n
\t101. D.W.4, the witness of the first defendant-Jeer Mutt, is well-versed
\nabout the “Agama Saastras”; D.W.4 in his evidence, fairly conceded in cross-
\nexamination that in most of the Temples, “Agama Saastras” are not followed, but
\n“Sishtachar” is being followed. Further, it is to be noted that in Thirumogur,
\n“Thaayaar Sannadhi” has been obscuring the view of “Sakkarathazhwar” and in
\nThirukoshtiyur, the Lord Siva is obscuring the Lord Kannan Sannidhi. Hence,
\nlearned counsel for the plaintiffs submitted that establishment of Lord
\nMahendragirinathar Temple at Thirukurungudi, is only a “Sishtachar” and that has
\nbeen clarified by the evidence of D.W.4. Hence, D.W.4 is the person who is
\ncompetent to depose about the “Agama Saastras” and “Sishtachar”.\n<\/p>\n
\t102. At this juncture, it is also relevant to consider the oral evidence
\nof D.W.5, who was the Junior to the “Bhattachariyar” of the Temple and who has
\nalso been examined on behalf of the first defendant-Jeer of the Mutt, and in his
\ndeposition, D.W.5 has stated as follows:\n<\/p>\n
\t“@…….. ng;bghGJ g[jpjhf fl;lg;gl;Ls;s nlj;jpy; rptid  ghpthuA;fSld;
\ngpujp&;il bra;jhy; itfhd! Mfkgo mike;j rd;djpahf tpsA;Fk; vd;W bjhptpj;Jf;
\nbfhs;fpBwd;. …”@
\n\t@”@rptd; rd;djp vt;tst[ Mz;Lfhykhf nUe;J tUfpwJ vd;W bjhpahJ. ehA;fs;
\ngz;ojh;fs; Brh;e;J KobtLj;j tprak; Mfk hPjpahf cs;s tpraA;fs; mog;gilapy;jhd;.
\nBtW fhuzA;fs; ny;iy. me;j Bfhtpy; jpt;aKh;j;jp !;jhgdk;. jpt;aKh;j;jp vd;gJ
\ntp&;Z rptd; mika[k; nlkhFk. itfhdr Mfkj;jpy; vd;bdd;d bja;tA;fis vA;bfA;F
\ngpujp&lil bra;aBtz;Lbkd;W Twg;gl;Ls;sJ. vd;bdd;d bja;tA;fis ve;bje;j nlj;jpy;
\ngpujp&;il bra;af;TlhJ vd;W VJk; mjpy; ny;iy. …@”@
\n\t“@@…. jpUKft{hpy; rf;fuj;jhH;thh; rd;djpia kiwj;J jhahh; rd;djp
\nmike;Js;sJ. jpUf;Bfhl;oa{hpy; Kyth; fz;zd; rd;djpia kiwj;J rptd; rd;djp
\nmikf;fg;gl;Ls;sJ vd;why; rhpjhd;. mt;thW mikf;f Mfk tpjpfs; nlk; bfhLf;fpwJ
\nvd;why; rhpjhd;. mt;thW mikf;f Mfk tpjpfs; nlk; bfhLf;fpwJ vd;gJ gw;wp
\nbjhpe;jth;fSk; Mfk gz;oj bghpath;fSk; mA;F cs;sdh.  jpUf;FWA;Fo epiwa Mfk
\ngz;ojh;fSk; uhkhD$h; cl;gl gyh; te;J brd;w !;jyk; MFk;. btA;fl;uhk gz;ojh;
\nBghd;wth;fs; mA;F trpj;jth;fs;. mth;fs; fhyj;jpy; vtUk; mfw;wg;gl;l rptd; rd;djp
\nMfk tpBuhjk; vd;W fUjtpy;iy vd;why; rhpjhd;. …@”@
\n\t“@… 1981y; ele;j Fk;ghgpB&fj;jpy; fye;Js;Bsd;. btA;fl;uhk gl;lh; jiyik
\ngl;luhf nUe;jhh. Bfhghy gl;lUk; cldpUe;jhh;. me;j Beuj;jpy; rptDf;Fk; gf;fk;
\nepd;whUf;Fk; nUtUf;Fkhd Bfhg[uA;fSf;Fk; Fk;ghgpB&fk; ele;jJ. gf;fk; epd;whh;
\nmUfpy; nUg;gJ Mfk tpBuhjk; vd;W Bfhghy gl;lBuh btA;fl;uhk gl;lBuh VJk; Twtpy;iy.
\nMfk tpBuhjk; vd;why; mij ijhpakhf brhy;yf;Toa mstpy; mth;fs; ijhpakhdth;fs;.
\nmth;fSf;F Jzpt[k; bjspt[k; cz;L.”@@\n<\/p>\n
\t103. So, as per the evidence of D.Ws.4 and 5, it is clearly proved that
\nthe Lord Shiva Temple obscuring the view of the Lord Veetrirundha Nambi, is
\namounting to “Sishtachar” and it is not in violation of the “Agama Saastras”.
\nFurthermore, there is no clinching evidence to show that only for curing the
\ndefects and to act in accordance with “Agama Saastras”, the Lord Shiva Idol had
\nbeen removed.  So, the contention of the first defendant-Jeer in this regard is
\nunacceptable.\n<\/p>\n
\t104. Learned Spl.G.P. appearing for H.R. & C.E.\/District Collector,
\nsubmitted that in the present case, the public has presented an application for
\nshifting of the Lord Shiva Deity and only considering the same, the Idol of Lord
\nShiva was shifted. He further submitted that the Government ratified the action
\nof the first defendant-Jeer for removal of the Idol of Lord Shiva and to keep
\nthe Idol  for worship in the new place in accordance with Hindu Agama Saastras.\n<\/p>\n
\t105. In this regard, learned counsel for D-1 relied upon the decision
\nreported in AIR 1960 SC 100 (Narayan Vs. Gopal), wherein, while referring to the
\nJudgment of the Bombay High Court reported in ILR 44 Bombay 466 = AIR 1920
\nBombay 67 (2) (Hari Raghunath Vs. Antaji Bhikaji), the Apex Court held as
\nfollows:\n<\/p>\n
\t“36. In Hari Raghunath Vs. Antaji Bhikaji  ILR 44 Bom 466 : (AIR 1920 Bom
\n67 (2) ), the temple was a public one. It was held by the High Court that under
\nHindu law, the manager of a public temple has no right to remove the image from
\nthe old temple and instal it in another new building, especially when the
\nremoval is objected to by a majority of the worshippers.   …. …
\n\tThe case is an authority for the proposition that the idol cannot be
\nremoved permanently to another place, because that would be tantamount to
\nestablishing a new temple. However, if the public agreed to a temporary removal,
\nit could be done for a valid reason.”\n<\/p>\n
\t106. Therefore, learned Spl.G.P. and learned counsel for D-1 Jeer
\nsubmitted that the first defendant-Jeer and  D-2 and  D3\/H.R. & C.E. Department
\nconsidered the said aspect and the Government ratified the action of removal of
\nthe Idol of Lord Shiva, in G.O.(Ms.).No,54 dated 8.4.2005, by ordering for
\nremoval and hence, they prayed for dismissal of the Second Appeals.\n<\/p>\n
\t107. Relying upon the said decision reported in AIR 1960 SC 100 (cited
\nsupra), it is contended by learned counsel for the plaintiffs stated that the
\nIdol of Lord Shiva cannot be removed permanently to another place, because, that
\nwould tantamount to establishment of a new Temple, but however, if the public
\nagreed to temporarily remove the Idol, it can be done for valid reasons. In the
\npresent case, there is no document to show that the removal was only temporary
\nand there is also no document to show that the public agreed for temporary
\nremoval. The said citation (AIR 1960 SC 100) only favours the plaintiff and
\nagainst the first defendant-Jeer.\n<\/p>\n
\t108. Hence, I am of the view that the first defendant-Jeer has no right to
\nremove the Idol of Lord Shiva, in view of the letters\/correspondences between
\nthe first defendant-Jeer and D2 and D3\/H.R. & C.E. authorities. Even during the
\npendency of the suit, the permission has been accorded by the Government by
\npassing the G.O.(Ms).No.55, dated 8.4.2005 by ratifying the action of the first
\ndefendant-Jeer. The communications between the first defendant-Jeer and D-2 and
\nD-3\/H.R. & C.E. authorities, clearly proved that the first defendant-Jeer has no
\nright to remove the Idol of Lord Shiva.\n<\/p>\n
\t 109. Further, learned counsel for the plaintiffs submitted that the first
\ndefendant-Jeer has no right as per the provisions of Section 3 of  “The Places
\nof Worship (Special Provisions) Act, 1991 (Act 42 of 1991), and hence, the Jeer
\nis not entitled to convert the place of worship.  Section 3 of the said Act 42
\nof 1991 reads as follows:\n<\/p>\n
“Section 3: Bar of conversion of places of worship.–No person shall convert any
\nplace of worship of any religious denomination or any section thereof into a
\nplace of worship of a different section of the same religious denomination or of
\na different religious denomination or any section thereof.”
\nOn this aspect, learned counsel for First defendant-Jeer stated that such
\nprovisions of Section 3 of Act 42 of 1991 is not applicable to the case on hand,
\nwhich cannot be countenanced by this Court, since the Lord Shiva \/ Pakkam
\nNindrar Idol was admittedly situated in front of the Lord “Veetrirundha Nambi”;
\nfurther, as per the evidence of DW4 (examined on behalf of First defendant-
\nJeer), who was the “Srikariyam” (Manager) of the Mutt, the Lord Shiva had been
\nin existence more than 200 years, which has now been removed and kept in “Dhanya
\nVaasam” (In Paddy). Only after coming into force of the said Act 42 of 1991, the
\nTemple authorities wanted to instal the Lord Shiva Idol from the original place
\nto the Third Prakaram (III Quadrant) of the Temple and for this reason only, it
\nhas been changed from the original place. Therefore, I am of the view that the
\nargument advanced by learned counsel for First defendant-Jeer does not merit
\nacceptance.\n<\/p>\n
\t110. Furthermore, admittedly, Thirukurungudi Temple, which is one of “108
\nDivya Desams” of the Lord Vishnu, is a Special Temple, having both Saivaite Gods
\nand Vaishnavaite Gods. First defendant-Jeer removed the Lord Shiva to admittedly
\ninstal the same in a separate Temple constructed only for Saivaites, has
\nliterally changed the character of the Thirukurungudi Azhagiya Nambirayar
\nTemple. Hence, I am of the view that the provisions of Section 3 of the said Act
\n42 of 1991 will squarely apply to the facts of the case on hand.\n<\/p>\n
\t111. Nextly, learned counsel for the plaintiffs submitted that First
\ndefendant-Jeer is not entitled to pick up one or other statement here and there
\nfrom the evidence of D.Ws.1 and 2 and such an approach is not permissible under
\nlaw. To substantiate this contention, learned counsel for the plaintiffs relied
\non the decision of the Supreme Court reported in 2000 (3) MLJ 199 (SC) (Boramma
\nVs. Krishna Gowda), wherein the Apex Court held as follows:
\n\t“10.  … it will not be a sound rule of appreciation of evidence to pick
\nup an answer from the cross-examination of a witness and draw inference taking
\nit in isolation. The court must see as to how consistent the testimony of the
\nwitness is and as to how that answer fits in with the rest of the evidence and
\nprobabilities of the case.  …”\n<\/p>\n
It is true that the Court must see as to how consistent the testimony of the
\nwitness is, and as to ho the answer fits in with the rest of the evidence and
\nprobabilities of the case. The Court cannot pick and choose one or two
\nstatements from the cross-examination of the witnesses and rely upon the same.
\nThough there is no quarrel over the law laid down in the said decision reported
\nin 2000 (3) MLJ 199 (SC) (cited supra), the same is not the case here, because
\nin this case, the evidence of the witnesses D.Ws.4 and 5 are relied on the whole
\nin respect of the pleadings raised by the parties.\n<\/p>\n
\t112. Learned counsel for the plaintiffs submitted that non-examination of
\nthe first defendant-Jeer, is fatal and in this regard, he relied on a decision
\nof the Supreme Court reported in 2005 SAR (Civil) 103 (Janki Vashdeo Bhojwani
\nand another Vs. Indusind Bank Ltd. and others), wherein the Apex Court held as
\nfollows:\n<\/p>\n
\t“14. Apart from what has been stated, this Court in the case of Vidhyadhar
\nVs. Manlkrao and another, 1999 (3) SCC 573, observed at page 583 SCC that,
\n“where a party to the suit does not appear in the witness-box and states his own
\ncase on oath and does not offer himself to be cross-examined by the other side,
\na presumption would arise that the case set up by him is not correct”.
\n\tIn civil dispute the conduct of the parties is material. The appellants
\nhave not approached the Court with clean hands. From the conduct of the parties
\nit is apparent that it was a ploy to salvage the property from sale in the
\nexecution of Decree.”\n<\/p>\n
Relying on the said decision reported in 2005 SAR (Civil) 103 (Janki Vashdeo
\nBhojwani and another Vs. Indusind Bank Ltd. and others), it is contended by
\nlearned for the plaintiffs, that in the pleadings, the defendants stated that
\nthey acted according to the “Agama Saastras” and to prove the “Agama Saastras”,
\nnone has been examined; either the “Jeer” or the “Agama Pandithar” ought to have
\nbeen examined on the side of First defendant-Jeer, but they have not appeared
\nand not been examined before Court. This decision is not applicable to the facts
\nof the present case, because, in the present case, on behalf of First defendant-
\nJeer, the “Srikariyam” (Manager) of the Mutt had been examined as D.W.4
\n(Narayanan). In such circumstances, I do not find any merit in the said argument
\nadvanced by learned counsel for the plaintiffs based on the said decision.
\nFurthermore, it is the duty of First defendant-Jeer to prove the averments made
\nin the written statement, and so, the non-examination of First defendant-Jeer
\nwill not in any way affect the case of the defendants, since the Manager (DW4)
\nhad been authorised on behalf of the Jeer-Mutt to depose the evidence.\n<\/p>\n
\t113. Learned counsel for First defendant-Jeer submitted that the first
\ndefendant-Jeer has right to remove and re-instal the Lord Shiva Idol in good
\nfaith and to prove this contention, he relied on the decision of this Court
\nreported in AIR 1929 Madras 118 (Panchapagesa Gurukkal Vs. Sinna Sevugam
\nChettiar), wherein a Division Bench of this Court held as follows:\n<\/p>\n
\t“If there is no lack of good faith in the exercise of discretion by the
\nDharmakartha or the Trustee in deciding whether a Temple is so dilapidated as to
\nadmit entire renovation, there seems to be no legal principle enabling the Court
\nto review the discretion of the Dharmakartha.”\n<\/p>\n
This citation (AIR 1929 Madras 118) is not applicable to the facts of the
\npresent case, because, since 1300 years ago, the Lord Shiva – Pakkam Nindrar was
\nthere and as per the version of D.W.4 examined on behalf of First defendant-
\nJeer, it was there for more than nearly 200 years and after the Temple
\nConsecration (Kumbhabhishekam) had been performed, the Temple authorities did
\nnot take any steps to conduct the alleged “Deva Prasannam” for removal of the
\nDeity Lord Shiva from the original place and re-instal the Lord Shiva Idol to
\nsome other place. Furthermore, as per Rule 52 of  the Management and
\nPreservation of Properties of Religious Institutions Rules, without prior
\npermission, the Temple authorities have removed the Lord Shiva Idol and
\nexplanation has also been called for from the Jeer and since the Temple is under
\nthe control of the H.R. & C.E. Department, First defendant-Jeer has no right to
\nremove the same. Furthermore, the said decision relates only to renovation of
\nthe Temple, and not regarding the removal of any Deity\/Idol and  installing the
\nsame to some other place and hence, it is not applicable to the facts of the
\npresent case.\n<\/p>\n
\tDeva Prasannam:\n<\/p>\n
\t114. “Deva Prasannam” is the Division of Astrology to find out the “Will”
\nof the God (Devahitam). There is an expectation by devotees that The God “Parama
\nSiva” had created Thirty Three Crores Demi-Gods in this Universe. It is clearly
\ndepicted in the Astrological book about the different expressions and
\npeculiarity of their state. There can be many more things in a Temple which
\ncreate damage to the Divine life force or vigour. For recognising these damages
\nin time and curing this by fostering the worship of God, the Astrologers totally
\ndepend on Astrology, a part of spiritual knowledge or holy scriptures. As all
\nthese think about God’s subject, it is termed as “Deva Prasannam”. An Astrologer
\nneeds scientific knowledge, “Guru Kripa”, God’s Grace, beyond above all, he
\nshould have the blessings of God of the particular Temple in which he is
\ndealing, then only, the result of the Astrological calculation will be
\nfavourable or pleasing.\n<\/p>\n
\t115. Learned counsel appearing for the plaintiffs submitted that the
\ndefendants in their written statement pleaded that the Tantric Unnikrishnan
\nPanicker, has given “Deva Prasannam”—The Voice of God. As per the Deva
\nPrasannam only, the Idol of Lord Shiva-Mahendragirinathar was removed from the
\noriginal place. At this juncture, learned counsel for the plaintiffs submitted
\nthat Deva Prasannam is recognised only in Kerala State and not in the State of
\nTamil Nadu and so, the arguments of the learned counsel for the defendants
\ncannot be looked into. In this regard, learned counsel for the defendants
\nsubmitted that the Deva Prasannam had been conducted to hear the “Voice of God”
\nonly to cure the defects mentioned and the Deva Prasannam is a recognised one.
\nTo substantiate the same, learned counsel for the defendants relied upon the
\ndecisions reported in AIR 1993 Kerala 42 (S.Mahendran Vs. Secretary, Travancore
\nDevaswom Board) and AIR 1925 Privy Council 139 (Pramatha Nath Vs. Pradhyumna
\nKumar), and in the respective decisions, it is held as follows:
\nAIR 1993 Kerala 42 (S.Mahendran Vs. Secretary, Travancore Devaswom Board):
\n\t“36. The Thanthri of the temple Sri Maheswararu had mentioned about the
\nDevaprasnams conducted at Sabarimala by well known astrologers in Ext.C2. He had
\nmentioned in that reply that in all the Devaprasnams it was revealed that young
\nwomen should not be permitted to worship at the temple. The report of the
\nDevaprasnam conducted in 1985 (from 5.4.1985 to 8.4.1985) was exhibited as
\nExt.C1. That is a Devaswom publication, the authenticity of which is not in
\ndispute. The English translation of the relevant portion contained at page 7 of
\nthe original report reads as follows:\n<\/p>\n
\t“It is seen that the deity does not like young ladies entering the
\nprecincts of the temple.”\n<\/p>\n
C.W.5, the Secretary of the Ayyappa Seva Sangham, who was present at the time of
\nDevaprasnam had spoken about what was revealed at the Devaprasnam. First
\nrespondent in its counter affidavit has mentioned about the practice followed to
\nset right controversial religious and ritualistic problems. It is stated that
\nthe Thanthri will suggest that it can be resolved by a Devaprasnam. The practice
\nof resorting to Devaprasnam to ascertain the wishes of the deity had been in
\nvogue from time immemorial and the Thanthri of Sabarimala also had suggested
\nconduct of Devaprasnam whenever occasion arose. The report of the Devaprasnam is
\nrather conclusive or decisive. The wishes of the Lord were thus revealed through
\nthe well-known method of Devaprasnam and the temple authorities and worshippers
\ncannot go against such wishes. If the wish of Lord Ayyappa as revealed in the
\nDevaprasnam conducted at the temple is to prohibit woman of a particular age
\ngroup from worshipping in the temple, the same has to be honoured and followed
\nby the worshippers and the temple authorities. The Board has a duty to implement
\nthe astrological findings and prediction on Devaprasnam. The Board has therefore
\nno power to act against the report which will be virtually disregarding the
\nwishes of the deity revealed in the prasnam.”\n<\/p>\n
\t116. Admittedly, in Kerala, “Deva Prasannam” is conducted in all the
\nTemples for performing the Poojas and other related matters. But there is no
\ncitation produced to prove that the “Deva Prasannam” is conducted in every
\nTemple in the State of Tamil Nadu and seeing the “Deva Prasannam” is the
\npractice prevailing in the Tamil Nadu while performing the annual Poojas and
\n“Kumbhabhishekarm” and other related matters.\n<\/p>\n
\tAIR 1925 Privy Council 139 (Pramatha Nath Vs. Pradhyumna Kumar):
\n    “It is open to an idol acting through its guardian the Shebait, to conduct
\nits worship in its own way at its own place always on the assumption that the
\nacts of the shebait expressing its will are not inconsistent with the reverent
\nand proper conduct of its worship by those members of the family who render
\nservice and pay homage to it.”\n<\/p>\n
The above citation in AIR 1925 Privy Council 139, is not applicable to the facts
\nof the present case, because, the Idol is a juristic person and the Shebait is
\nits representative and it can sue and be sued and the Idol can express its will
\nthrough “Shebait”.\n<\/p>\n
\t117. There is no evidence to show that the Deva Prasannam was an accepted
\npractice in the State of Tamil Nadu. There is no decision to show that Deva
\nPrasannam is well-known in the State of Tamil Nadu. In Ex.B-16, which is the
\nbook titled “Srirangam Koil Prasnam”, there is a mention about the dates  A.C.
\n7th, 8th and 9th February, 2001, on which dates, “Deva Prasannam” was conducted
\nin the said Srirangam Temple by the same Tantric, namely Shri.Unni Krishnan. In
\nthis context, it is to be noted that the “Deva Prasannam” of Arulmighu Azhagiya
\nNambirayar Temple at Thirukurungudi, was performed on 22.8.1996 by the same
\nTrantric Unni Krishnan, which is admittedly before the conduct of “Deva
\nPrasannam” at Srirangam Temple, which was in 2001. Hence, the argument advanced
\nby learned counsel for defendants that the “Deva Prasannam” is recognised in the
\nState of Tamil Nadu, as in Srirangam as stated above, the “Deva Prasannam” was
\nconducted, does not merit acceptance. Further, there is no document to show that
\nbefore the conduct of “Deva Prasannam” at Thirukurungudi, the “Deva Prasannam”
\nwas conducted in the Temples of the State of Tamil Nadu. Admittedly, Mr.Muthiah
\nSthabathai, who is the Sthabathi-Sculptor of the Tamil Nadu H.R. & C.E.
\nDepartment, was representing the State of Tamil Nadu and if really the said
\n“Deva Prasannam” was earlier conducted in Tamil Nadu, some persons would have
\nbeen nominated for such a post like the said Sthapathi-Sculptor. In such
\ncircumstances, I am of the view that the argument advanced by learned counsel
\nfor the defendants that the Deva Prasannam is accepted in the State of Tamil
\nNadu, does not merit acceptance. Furthermore, Tantric Unnikrishnan Panicker was
\nnot  examined before Court to prove the contents of the “Deva Prasannam”.\n<\/p>\n
\t118. Learned counsel for First defendant-Jeer submitted that the suit by
\nworshippers against the custodian of the Deity, to look at it in a particular
\nplace, is not maintainable before a Civil Court, as the plaintiffs are not
\nprevented from worshipping at the place where the Deity was situated before
\nremoval. To substantiate the same, he  relied upon a decision reported in AIR
\n1949 Orissa 1 (Radhakrishna Das Vs. Radharamana Swami), wherein the Orissa High
\nCourt observed as follows:\n<\/p>\n
\t“In a suit for a declaration that the alienation of the plaintiff deity
\nand its installation elsewhere is against the will and the interest of the
\nplaintiff deity and of its rights to revert to its original place of
\ninstallation, the Court must determine whether it is the will of the deity to be
\nso removed and whether it is in its interest to be so removed. It does not
\nmatter whether the “next friend” who brings the suit is wholly disinterested.”
\n\t“The will of the deity must be determined in the light of what is in the
\nbest interests of the idol. Where rival sebayets claim to represent the will of
\nthe deity in conflicting ways, the duty of determining what should be the will
\nof the deity must ultimately devolve upon the Court.”\n<\/p>\n
\t“A suit by a worshipper, not based on any right to the property in the
\nidol or to an office, against its custodians to locate it in a particular temple
\ninstead of in another, there being no allegation that the plaintiff is prevented
\nfrom worshipping the idol at the latter temple, is not cognizable by the Civil
\nCourt.”\n<\/p>\n
While considering the said decision of the Orissa High Court, in that citation
\nalso, the “Will” of the Deity has been considered by Court and in the facts
\nstated therein, there has been rival claims regarding the “Will” of the Deity
\nand in that background, it was held that the duty of determining as to what
\nshould be the “Will” of the Deity, must ultimately devolve upon the Court.
\nFurthermore, in the present case, the Lord Shiva\/Pakkam Nindraar was in front of
\nthe Lord Deity Veetrirundha Nambi and now the proposal is to instal the Lord
\nShiva Idol (which is now kept in “Dhanya Vaasam”) in the new Temple constructed
\nat the Third Prakaram (Quadrant). In such circumstances, the said decision of
\nthe Orissa High Court is not applicable to the facts of the present case.\n<\/p>\n
\t119. At this juncture, learned counsel for the plaintiffs submitted that
\nD.W.4 is the person who heard the Deva Prasannam, does not know Malayalam and
\nthe Tantric Unnikrishna Panicker does not know Tamil and without any
\nTranslator\/Interpreter, it is not known as to how both D.W.4 and the Tantric
\nUnnikrishna Panicker interacted each other and as to how the Deva Prasannam was
\nreduced into writing. Learned counsel for the plaintiffs mainly focussed on this
\npoint. Admittedly, the  script of Deva Prasannam is filed as Ex.B-26. In the
\nsaid Ex.B-26, Tantric Unnikrishnan Panicker stated that the Idol of Lord Shiva
\nwas installed only in a later point of time and also stated to be obscuring the
\nmain Deity and so, the Tantric advised to re-instal the same into another place
\nas per the advice of sculptor (Sthabathi).\n<\/p>\n
\t120. In this connection, learned Senior Counsel appearing for D7 to D9
\nsubmitted that Muthiah Sthabathi is the competent person in Tamil Nadu to fix
\nand find out the place as to where the Deity has to be installed. Learned Senior
\nCounsel further relied on Ex.B-38 which is the report of the Expert Committee in
\nthe meeting held on 31.3.2003, and the said Expert Committee was appointed by
\nthe H.R. & C.E. Department, and it consisted of the Joint Commissioner of
\nTirunelveli H.R. & C.E. Department; Mr.Muthiah Sthabathi, “Sthabathi Alosakar”
\nof the H.R.& C.E. Department, Chennai as members and other members including the
\nexperts in Agama Saastras, Sivacharya and Bhattacharya. It is stated therein
\nthat while the said Expert Committee was going on, the “Saiva Peravai”,
\nK.Chockalingam (first plaintiff) and others, gave representation objecting to
\nthe shifting of Lord Shiva Idol and on the said objection\/representation, the
\nExpert Committee decided as follows (as translated from Ex.B-38):
\n\t“(i) The Sivalinga in the main sanctum sanctorum of the Shiva Temple shall
\nnot be re-located.\n<\/p>\n
\t(ii) But in the Demi God (Parivara) Temples, if the Siva Shrine is
\ndislodged or it is changed by some persons unexpectedly, we establish the same
\nagain in the original place as per the Saastric customs. It could also be done
\nas per the “Prayachitta” Rules mentioned in the Saastras. For this,
\nThirumoolar’s song could not be taken as example. Further, the Lingas are of
\nthree types, namely Deivigam, Arsham and Manusham. Deivigam is installed by
\nDevas, Arsham is installed by Rishis. The ‘Suyambu’ lingas shall not be
\ndisturbed. The Lingam at present belongs to Demi-God (Parivara). It was
\ninstalled recently. The Committee opines that it can be re-installed again in
\nappropriate place as per the practice and Saastric  conventions.”\n<\/p>\n
\t121. Learned Senior Counsel appearing for the defendants 7 to 9 relied
\nupon a Division Bench judgment of this Court reported in 2009 (4) CTC 143 (Akila
\nand K.Periyakaruppan Vs. The Government of Tamil Nadu), and also relied another
\nDivision Bench judgment dated 19.8.2009 of Madurai Bench of this Court, in
\nW.P.(MD).No.8800 of 2008, and both the Division Benches have observed and
\naccepted the expert opinion given by Thiru.M.Muthiah Sthapathi,
\nPresident\/Sthabathi Advisory Committee, H.R.& C.E. Department, Government of
\nTamil Nadu. Learned Senior Counsel appearing for D7 to D9 therefore submitted
\nthat the opinion of the said Muthiah Sthapathi, has been accepted by a Court of
\nlaw and his opinion has also been taken into consideration by the Division Bench
\nof this Court and orders passed thereon. In Ex.B-38, which is the report of the
\nExpert Committee appointed by the Tamil Nadu H.R. & C.E., the said Muthiah
\nSthapathi who was also one of the members of the Expert Committee, viewed that
\nthe Idol of Lord Shiva could be installed again in appropriate place as per the
\npractice and “Saastric” conventions.\n<\/p>\n
\t122. D.Ws.1 and 2 stated that since the Temple was not in accordance with
\nthe “Agama Saastras”, to rectify the defects and restore the “Agama Saastras”,
\nthe Idol of Lord Shiva has been removed. But while perusing Ex.B-10, which is
\nthe book titled “Azhagiya Nambi Ula”, it is specifically mentioned that for
\ngiving “Dharshan” to “Nambaduvan”, the “Kodi Maram” of the Temple, moved from
\nits original place and so, the Temple is not in accordance with the “Agama
\nSaastras”. Admittedly, the authorities of the Temple\/Mutt did not take any steps
\nto correct the position of “Kodi Maram” in accordance with “Agama Saastras”.\n<\/p>\n
\t123. In this connection, it is appropriate to consider the arguments of
\nthe learned counsel for the plaintiffs that some important Temples are
\nconstructed in accordance with the “Agama Saastras” and in some Temples,
\n“Sishtachar” is being followed, which is also a recognised one and the same is
\nalso being followed in the Thirukurungudi Temple from time immemorial and it is
\nnot against the principles of “Agama Saastras” and that has been fortified by
\nthe evidence of D.W.4.\n<\/p>\n
\t124. At this juncture, it is appropriate to consider the evidence of
\nD.W.4, who stated as follows:\n<\/p>\n
\t\t“@@ …!;jy g[uhzj;jpYk; fA;fhBjtp g[uhzj;jpYk; rptd; ve;j gf;fkhf
\nvA;F epw;fBtz;Lbkd;W Twg;gltpy;iy. rptbgUkhd; gf;fk; epw;gJ, bfhokuk; tpyfp
\nepw;gJ midj;Jk; g[uhzg;go vd;why; rhpjhd. me;j nuz;Lk; Mfkg;go my;;y. Mfkj;jpw;F
\nvjpuhf cs;sJ vd;why; rhpjhd. Mfkj;jpd;go my;yhkYk; g[uhzg;goahd mk;rgoa[k;
\njpUf;Bfhtpy; mike;Js;sJ. mJBghd;w jdp eilKiwfis rp&;lhrhuk; vd;W Twthh;fs;. mJ
\nbghpBahh;fs; brhd;dJ. mija[k; Mfkk; Bghd;W Vw;fBtz;Lk;. Mfkg;goa[k; bghpBahh;fs;
\nbrhd;dgoa[k; ele;Jbfhs;sBtz;Lk;. nuz;ow;Fk; xBu kjpg;g[jhd. ePz;lfhykhf
\nnUe;JtUk; eilKiwia ehA;fs; khw;Wtjw;fhd fhuzA;fs; xBu klg;gs;spapy; nUtUf;Fk;
\nbea;Btj;jpak; jahhpg;gJ Br&k; vd;gjhy; khw;wBtz;Lbkd;gJ fhuzk; vd;W
\nbrhy;ypa[s;Bshk. …@”@<\/p>\n
\t125. D.W.5 Raju @ Lakshmana Battar, who is the Temple Priest (Archakar) of
\nThirukurungudi Temple, and who was examined on the side of the first defendant-
\nJeer of the Mutt, stated in his evidence as follows:\n<\/p>\n
\t“@@…. miwah;fs; rlhhpia vLj;J jhahhplk; xg;gilg;gJ rp&;lhrhuk; vd;w
\neilKiwahFk;. rp&;lhrhuj;ij khw;wpaikf;f KoahJ. Mfkj;jpw;F bfhLf;Fk; khpahij
\nmjw;Fk; cz;L. khwhf i& braYf;F Mfkk; tpyfp tHpglBtz;Lk;. jilahf nUf;ff;TlhJ.
\njpUf;FWA;Fo Mfk   tpjpfSf;F tpyfp jdpj;jpUg;gJ mjd; rpwg;ghFk. 2 itzt MfkA;fSk;
\nKytUf;F Beh; vjpuhf bfhokuk; mikaBtz;Lbkd;W tpjp brhy;fpwJ. Mdhy; Mfkj;jpd;go
\nmy;yhky; bfhokuk; tpyfp cs;sJ. mJ ek;ghLthDf;fhd jdp rpwg;ghFk;. mit Mfkj;jpw;F
\nvjpuhdJ vd;Wk; mij khw;wpaikf;f Btz;Lbkd;Wk; Mfk gz;ojh; vtUk; Twtpy;iy. mJ
\nrp&;lhrhuk; vd;gjhy; mij khw;wpaikf;f ahUk; Twg;Bghtjpy;iy\/ rptd; rd;djp mUfpy;
\ncs;sJ Mfkj;jpw;F vjpuhdJ vd;gJjhd; vA;fs; fUj;J. mJ rp&;lhrhuj;jpy; tUfpwjh
\nny;iyah vd;W ehA;fs; Mbyhrpf;ftpy;iy. …@ “@\n<\/p>\n
\t126. So, both “Sishtachar” and “Agama Saastra” are having equal
\nimportance. “Agama Saastras” have not been strictly followed in Thirukurungudi
\nTemple and “Sishtachar” has been followed. Furthermore, ‘Kodimaram’ is not in
\naccordance with the “Agama Saastras” in the Thirukurungudi Temple. Considering
\nthe evidence of D.Ws.4 and 5, I am of the view that the defence raised by the
\ndefendants that only as per the “Agama Saastras”, the Lord Shiva Idol had been
\nremoved from the original place, does not merit acceptance.\n<\/p>\n
\t127. In this context, it is appropriate to consider the arguments advanced
\nby learned Senior Counsel appearing for the defendants 7 to 9 that since the
\nvillagers have given a representation that because the Lord Shiva is in the
\nVaishnavaite Temple, the Saivaites are unable to perform the Poojas for
\n“Sivarathiri” and “Pradhosham”. But the above argument does not merit
\nacceptance, for the following reasons:\n<\/p>\n
\t(i) Admittedly, even from the Seventh Century onwards i.e. during the
\nperiod of the Saint Thirumangai Azhwar , the Lord Shiva Shrine was there in the
\noriginal place of the Temple and even though the defendants submitted that the
\nLord Shiva Idol is only a later addition, there is no evidence to show that the
\nIdol was installed only at a later point of time and no one has given
\nrepresentation till 2003 for shifting of the Lord Shiva so as to perform the
\nPoojas of “Sivarathiri” and “Pradhosham”.\n<\/p>\n
\t(ii) As per the evidence of D.W.4, the Lord Shiva Idol was installed in
\nthe Temple nearly 200 years ago and till 2003, no one has given representation
\nfor shifting the Idol of Lord Shiva, so as to perform the Poojas to Lord Shiva
\non “Sivarathiri” and “Pradhosham” days.\n<\/p>\n
\t(iii) Till 2003 and even when the “Deva Prasannam” was conducted in 1996,
\nno one has given representation for performing the said Poojas to Lord Shiva.
\n\tHence, the argument advanced by the learned Senior Counsel for D7 toD9
\nthat to fulfil the wishes of the villagers of Thirukurungudi, the Idol of Lord
\nShiva had been removed, does not merit acceptance.\n<\/p>\n
\t128. Further, the defence raised by D7 to D9 in their written statement is
\nthat after the removal of the Idol of Lord Shiva from the place where it was
\noriginally situated, there was been prosperity in the Village and there had been
\ncopious rain. Admittedly, no oral or documentary evidence has been produced by
\nthem on this aspect. Furthermore, as per the evidence of D.W.4, the Lord Shiva
\nIdol was in existence even before 200 years and there is no evidence for the
\npast 200 years that the people of the Village of Thirukurungudi were starving
\nand were in doom.\n<\/p>\n
\t129. It is also pertinent to note that the “Lord Kala Bairavar” Shrine is
\nin the Temple at Thirukurungudi, since the inception of the Temple. Admittedly,
\nthe “Lord Kala Bairavar” will only be in the Saivaite Temples. This has clearly
\nproved that the Idol of Lord Shiva been in existence from time immemorial and
\nthe defendants have not taken any steps to instal the “Kala Bairavar” Shrine in
\nthe newly constructed Temple.\n<\/p>\n
\t130. From the ancient documents marked as Exhibits, which are already
\ndiscussed earlier in this judgment, it is clearly proved that the Lord “Pakkam
\nNindrar” was there even during the period of Thirumangai Azhwar, i.e. in Seventh
\nCentury. Hence, I am of the view that the removal of the Idol of Lord Shiva is
\nnot in accordance with the “Agama Saastras”. Though the “Kodimaram” is situated
\nagainst the “Agama Saastras”, but no steps have been taken to instal the same
\nstraight to the Deity.\n<\/p>\n
\t131. Now this Court has to decide as to whether the shifting of the Lord
\nShiva was on the basis of the “Deva Prasannam” without reference to “Agama
\nSaastras”. It is pertinent to note that conducting “Deva Prasannam” is not in
\npractice in the State of Tamil Nadu while performing “Jeernodharana
\nKumbhabhishekam” (Temple consecration), as already discussed in this judgment.\n<\/p>\n
\t132. In this context, it is appropriate to consider the written statement
\nfiled by the first defendant, and in paragraphs 9 and 10, it is stated therein
\nthat as per the tradition and accepted practice, before taking up the renovation
\nwork, the “Deva Prasannam” was conducted to seek “Divine Sanction” and to
\nperform the requisite rituals found necessary to rectify the defects if any. In
\nparagraphs 9 and 10 of the written statement filed by First defendant, the
\nfurther disclosures of the “Deva Prasannam” were mentioned.  But while perusing
\nEx.B-38, which is the report of the Expert Committee appointed by the H.R. &
\nC.E. Department, it is seen that it does not contain the disclosures of the
\n“Deva Prasannam”. In paragraph 9 of the written statement filed by First
\ndefendant, it is stated that, “the acclaimed Tantric Sri Unnikrishnan was
\nconsulted and the divine ordination disclosed that the then dilapidated Siva
\nTemple on the north-east of the village known as Sri Analleswara Temple be
\nrenovated first before the renovation work in the Azhagiya Nambiraya Perumal
\nTemple was taken up.” In paragraph 10 of the written statement filed by First
\ndefendant, it is stated that, “The Deva Prasannam further diclosed that the
\npractice of preparation of Neivedyam in common in the Madapalli (Kitchen) in the
\nTemple was not proper and be discontinued. Since the offering thus made to Lord
\nSiva was inelegant as constituting a Sesham (residue) and that the separate
\nShrine and Madapalli be built exclusively for Lord Siva as per Saastric
\nprescriptions.” But as already stated, only one “Madapalli” (Divine Kitchen) was
\nthere in the Temple and that the Lord Pakkam Nindrar was there from time
\nimmemorial even during the period of the Saint Thirumangai Azhwar. Furthermore,
\nas per the documents filed on behalf of the defendants, even during the period
\nof 35th Jeer, the Temple consecration (Kumbhabhishekam) was performed for Lord
\nShiva “Pakkam Nindrar” along with the other Deities’ Gopuram (Vimanam), but no
\none suggested to remove the same at that time. Even in the year 1911, the Temple
\nconsecration was performed and during that period, it was not the case that at
\nthat time, “Deva Prasannam” was conducted suggesting  removal of the Lord Shiva
\nShrine. Furthermore, as per the decision reported in AIR 1949 Orissa 1 (cited
\nsupra), if there is conflict “Will” of the Lord as had been expressed by the
\nrival parties through the methods like “Deva Prasannam”, the Court has to
\ndevolve upon the same and render its judgment. Admittedly, in this case, the
\nDeva Prasannam was conducted only by the Tantric Unni Krishna Panicker, and
\nthere is no second person conflicting the views of the said Tantric in the
\nconduct of Deva Prasannam.  In such circumstances, I am of the view that the
\ncontention that only in accordance with “Deva Prasannam”, the Lord Shiva Idol
\nhas been shifted, is unacceptable.\n<\/p>\n
\t133. Moreover, while considering the day-to-day activities of the Temples,
\nonly in the Temples of Kerala State, the “Deva Prasannam” was conducted, that
\ntoo, only for the performance of “Poojas” in the  Temples and not for removal or
\ninstallation of any Deities. Hence, I am of the opinion that the first appellate
\nCourt has erroneously come to the conclusion that the shifting of the Idol of
\nLord Shiva was done on the basis of “Deva Prasannam”,  without any reference to
\n“Agama Saastras”. As already discussed earlier, not only in Thirukurungudi
\nAzhagiya Nambi Temple, but in most of the famous Hindu Temples, the “Agama
\nSaastras” are not being followed, for example, in the Temples of Nataraja Swamy
\nat Chidambaram, Thirumogur Temple, Tiruchendur Subramanya Swamy Temple,
\nThirukoshtiyur Temple, etc. So, the argument advanced by learned counsel for the
\ndefendants that only as per “Deva Prasannam” and without any reference to “Agama
\nSaastras”, the  Idol of Lord Shiva, was shifted, does not merit acceptance.
\n\tThe substantial questions of law (iv), (vi), (vii) and (ix) are answered
\nin the  above terms.\n<\/p>\n
\t134. Substantial question of law (v):\n<\/p>\n
\tWhether the lower appellate Court is right in holding that the first
\nrespondent, viz., Jeer, has got powers to make changes, which according to him,
\nis against Agama Saastras ?\n<\/p>\n
\tLearned counsel for the plaintiffs submitted that the Jeer is only the
\nHead of the Mutt, i.e. “Madathipathi” and since the Temple is under the
\nsupervision and control of H.R. & C.E., the Jeer has got no powers to make
\nchanges in the structures\/Idols\/Deities. To substantiate the same, he relied on
\nSections 23 and 105 of  the Tamil Nadu H.R. & C.E. Act, which read as follows:
\nSection 23: Powers and duties of Commissioner in respect of temples and
\nreligious endowments:\n<\/p>\n
\tSubject to the provisions of this Act, the administration of all temples
\n(including specific endowments attached thereto) and all religious endowments
\nshall be subject to the general superintendence and control of the Commissioner;
\nand such superintendence and control shall include the power to pass any orders
\nwhich may be deemed necessary to ensure that such temples and endowments are
\nproperly administered and that their income is duly appropriated for the
\npurposes for which they were founded or exist:\n<\/p>\n
\tProvided that the Commissioner shall not pass any order prejudicial to any
\ntemple or endowment unless the trustees concerned have had a reasonable
\nopportunity of making their representations.”\n<\/p>\n
Section 105: Saving: — Nothing contained in this Act shall–\n<\/p>\n
\t(a) save as otherwise expressly provided in this Act or the rules made
\nthereunder, affect any honour, emolument or perquisite to which any person is
\nentitled by custom or otherwise in any religious institution, or its established
\nusage in regard to any other matter;\n<\/p>\n
 or\n<\/p>\n
\t(b) authorise any interference with the religious and spiritual functions
\nof the head of a Math including those relating to the imparting of religious
\ninstruction or the rendering of spiritual service.”\n<\/p>\n
\t135. Section 6(13) of the Tamil Nadu H.R. & C.E. Act deals with “math”,
\nwhich reads as follows:\n<\/p>\n
Section 6: Definitions.–In this Act, unless the context otherwise requires–
\n….\n<\/p>\n
(13) “math” means a Hindu religious institution with properties attached thereto
\nand presided over by a person, the succession to whose office devolves in
\naccordance with the direction of the founder of the institution or is regulated
\nby usage and–\n<\/p>\n
\t(i) whose duty it is to engage himself in imparting religious instruction
\nor rendering spiritual service; or\n<\/p>\n
\t(ii) who exercises or claims to exercise spiritual head-ship  over a body
\nof disciples;\n<\/p>\n
and includes places of religious worship or instruction which are appurtenant to
\nthe institution;\n<\/p>\n
Explanation.–Where the headquarters of a math are outside the State but the
\nmath has properties situated within the State, control shall be exercised over
\nthe math in accordance with the provisions of this Act, in so far as the
\nproperties of the math situated within the State are concerned;”\n<\/p>\n
\t136. In this connection, learned counsel for the plaintiffs also relied
\nupon the book “V.K.Varadachari’s Law of Hindu Religious and Charitable
\nEndowments”, Revised by Dr.R.Prakash, Advocate, Supreme Court, Published by
\nEastern Book Company, Lucknow, Fourth Edition 2005, in which, page 466 deals
\nwith Chapter VIII regarding Maths and Mahants, and Clause 2 therein, deals with
\n“Maths and Temples” and submitted that there is a difference between “Math” and
\n“Temple” and so, the “Madathipathi” (Head of the Mutt) is only having
\nadministrative powers of the “Mutt” and not the Temple; the Temple and Math are
\nsupplementary to each other; a Temple is practical aspect while a Math is
\ntheoretical part and both have separate objects; in Math, provision for
\nresidence is a must and “Math” has been serving as a School, where the initiated
\nand lay disciples of some great Teacher are instructed in a certain philosophy
\nin order to help them lead a healthy, pure and spiritual life. Learned counsel
\nfor the plaintiffs further submitted that the “Madathipathi” has no right to add
\nor remove any features of the Temple and if he did anything in the features of
\nthe Temple, the same can be questioned by fling a representative suit. For this
\nsubmission, he relied upon the decisions reported in Vol.LVI, 1920 Indian Cases
\n459 (Hari Raghunath Patvardhan Vs. Antaji Bhikaji Patvardhan) and AIR 1958
\nOrissa 26 (Ramakrushna Vs. Gangadhar) and also relied on various provisions of
\nSection 116 of  the Tamil Nadu H.R. & C.E. Act to the effect that the Government
\nalone has power to make Rules by Notification to carry out the purposes of the
\nsaid Act for preservation of the image of the Temples. He also relied on Rules
\n31, 37 and 52 of the Management and Preservation of Properties of Religious
\nInstitutions Rules, 1964 and submitted that no one has power to alter the Idol
\nof Lord Shiva in the Temple, and therefore, he submitted that the
\nMadathipathi\/Jeer\/First defendant has no right to remove the Idol of Lord Shiva
\nfrom the place where it was originally situated. Admittedly, the Idol of Lord
\nShiva is now in “Dhanya Vaasam” (inside the paddy).\n<\/p>\n
\t137. Learned counsel for the defendants submitted that Section 105(b) of
\nthe Tamil Nadu H.R. & C.E. Act shall not apply to the religious activities of
\nthe Mutt and Section 105(b) specifically provides that the officials cannot
\ninterfere with the religious and spiritual functions of the Head of a Math. He
\nfurther submitted that the plaintiffs have not given any evidence in this
\naspect.\n<\/p>\n
\t138. It it true that the plaintiffs have filed the suit simpliciter for
\ndeclaration that the removal of Idol of Lord Shiva is null and void and they
\nhave not questioned the rights of the Jeer, whereas, the first defendant-Jeer
\nhimself stated that he has every right to alter the Idols of the Temple, and so,
\nit is the duty of the first defendant-Jeer to prove the contents in the
\nadditional written statement that, “….defendant as the Head of the Mutt, is in
\ncontrol and management of the entire Temple, he is the authority to decide the
\nreligious matters and his decision cannot be interfered by anybody….”\n<\/p>\n
\t139. Learned counsel for the defendants submitted that First defendant
\nJeer has administrative powers for management of the Temple\/Mutt and that the
\nJeer is the hereditary Trustee for administering the Temple and constructing the
\nTemple or of religious matters, and the Jeer has every right as per the
\nreligious practice to re-instal the Idols of Azhagiya Nambirayar Temple. D.W.4
\nwho is the Manager of the Mutt (Srikariyam of the Mutt) was examined on these
\naspects and there was no cross-examination of D.W.4 on the aspect of the powers
\nof Jeer to remove the Idol of Lord Shiva. Learned counsel for the defendants
\nfurther submitted that as per Section 105(b) of the Tamil Nadu H.R. & C.E. Act,
\nthe Jeer has control as the Head of the Mutt and he is having absolute powers in
\nthe administration and management of the Temple\/Mutt.  Learned counsel for the
\ndefendants further stated that the Rules 31, 37 and 52 of the Management and
\nPreservation of Properties of Religious Institutions Rules, relied on by the
\nlearned counsel for the plaintiffs, are not applicable to the facts of the
\npresent case on hand.\n<\/p>\n
\t140. Learned counsel for First defendant-Jeer relied on a judgment of a
\nDivision Bench of this Court reported in Vol.95 LW 502 (His Holiness Sri-la-Sri
\nAmbalayana Pandarasannathi Avergal Vs. State of Tamil Nadu), which relates to
\nthe powers of the “Madathipathi” in regard to appointment\/nomination of the
\nJunior of His Holiness “Madathipathi”, which is not the question in the case on
\nhand and hence, this citation is not applicable to the facts of the present
\ncase.\n<\/p>\n
\t141. Learned counsel for First defendant-Jeer also relied upon the
\ndecision of the Supreme Court reported in AIR 1954 SC 282 (Commr., H.R. E. Vs.
\nL.T.Swamiar), which deals with the rights and duties of “Mahant”. This decision
\nis not applicable to the facts of the present case, because the Tamil Nadu H.R.
\n& C.E. Act came into existence only in 1959 and this decision pertains to the
\nyear 1954. Furthermore, in the present case, then and there, First defendant-
\nJeer sought for permission from H.R. & C.E. Department and also requested the
\nauthorities of H.R. & C.E. to be present on the date of “Balalayam”, which is
\nevidenced by the documents marked on the side of the first defendant-Jeer.\n<\/p>\n
\t142. Learned counsel for First defendant-Jeer further relied on a judgment
\nof the Apex Court reported in 2002 (8) SCC 106 (N.Adithayan Vs. Travancore
\nDevaswom Board), which deals with violation of human rights, which is not the
\ncase here.\n<\/p>\n
\t143. While considering the arguments advanced by learned counsel on both
\nsides, it is seen that admittedly, the Temple in question is under the
\nsupervision and control of the Tamil Nadu H.R. & C.E. Department and under the
\nsuperintendence of the Joint Commissioner of H.R. & C.E. Furthermore, it is
\npertinent to note that after the removal of the Idol of Lord Shiva, the
\nGovernment passed a G.O., ratifying the act of the Jeer, which has clearly
\nproved that the Madathipathi has only administrative control in respect of the
\nMutt and not the Temple.\n<\/p>\n
\t144. Further, the document Ex.B-33 relied on by the learned Senior Counsel
\nfor D7 to D9, has clearly proved that, then and there, on behalf of the Jeer, a
\ncommunication was sent to the H.R. & C.E. Department in respect of the
\nperformance of renovation work and “Balalayam” of the Temple, and in Ex.B-33
\ndated 4.6.2002,  the letter addressed by the Manager of the Temple to the H.R. &
\nC.E. Authorities, in the “Subject” column, it is mentioned about the renovation
\nof “Sri Swami Azhagiya Nambirayar Thirukoil, Thirukurungudi” and “change of
\nSivan Temple” and in paragraph 4 therein, it was mentioned about the Siva
\nTemple. The Special Commissioner and Commissioner of H.R. & C.E. Department, has
\nappointed an Expert Committee, as evidenced by Ex.B-34.  There is another
\ncommunication\/Ex.B-35, dated 13.3.2003, sent by Joint Commissioner, H.R.& C.E.,
\nTirunelveli, to the Muthiah Sthapathi, Sivachariyar and Bhattachariar, asking
\nthem to inspect the Temple and give their views.  Ex.B-36 is the Minutes of the
\nMeeting of the Expert Committee, dated 31.3.2003 and on the same day, i.e. on
\n31.3.2003, the plaintiffs and villagers of Thirukurungudi, have sent a
\ncommunication (Ex.B-37) to the Assistant Commissioner, H.R. & C.E. Department,
\nTirunelveli, objecting to the shifting of Lord Shiva Idol. There is another
\nrepresentation by the villagers of Thirukurungudi, which is marked as Ex.B-40,
\naddressed to Commissioner of H.R. & C.E., Tamil Nadu, and in Ex.B-40, the seal
\nof the H.R. & C.E. Department contains the date 12.5.2003. The Commissioner of
\nH.R. & C.E. Department, Chennai, has sent a communication-Ex.B-44, to Jeer
\nSwamigal of Thirukurungudi of Arulmighu Azhagiya Nambirayar Temple, dated
\n6.8.2004, in which, it is stated that without obtaining prior permission, the
\nLord Mahendragirinathar\/ Lord Shiva, had been removed and put in “Dhanya Vaasam”
\nand the Commissioner called for explanation on the said aspect from the first
\ndefendant-Jeer. Ex.B-43 is the communication dated 23.6.2004 addressed by the
\nAssistant Commissioner of H.R. & C.E., Tirunelveli to the Joint Commissioner of
\nH.R. & C.E., Tirunelveli and it contains the correspondences relating to
\n“Balalayam” of Lord Siva Idol; it contains a communication dated 31.5.2004, in
\nwhich, it was mentioned on behalf of Jagadguru Sri Sankaracharya Swamigal,
\nKancheepuram, that consent was given by His Holiness Sri Acharya Swamigal for
\nBalalayam and renovation works of Lord Siva and Goddess Ambal Deities. On the
\nsame day, i.e. on 31.5.2004, on behalf of the Jeer Swamigal of Thirukurungudi,
\nthe Manager of the Temple has addressed a letter to Joint Commissioner of H.R. &
\nC.E. Department, Tirunelveli, seeking for permission for performance of
\n“Balalayam”, and in the said communication, on behalf of the Jeer, it is stated
\nthat without shifting the Deities, (Kh;j;jp rydkpy;yhky;), they are going to
\nperform the Balalayam and the relevant portion of the communication dated
\n31.5.2004 sent on behalf of the Jeer to Joint Commissioner, reads as follows:
\n   “@@mHfpa ek;gpuhah; jpUf;Bfhtpy; $Ph;Bzhjhuzj;jpd; xU gFjpahf rptd; re;epjp
\nghyhyak; 2\/6\/2004y; jpl;lkpl;lgo eilbgw;W tUfpwJ. fhq;rP _ _ $Bae;jpu !;thkpfSk;
\nxg;g[jy; bjhptpj;Js;shh;fs;. fPHf;;fz;l KyBgu Kh;j;jpfs; ghyhyak;, Kh;j;jp rydk;
\nny;yhky; eilbgWfpwJ. 1.kBcwe;jpu fphpehjh; 2.gps;isahh; 3.Rg;ukzpah; 4.ee;jp\n<\/p>\n
5.rz;Bl!;tuh;. MfBt i& jpdj;jpy; fhiy 9-10 kzpf;F Jiw  mjpfhhpfs;  gpurd;dkhf
\nnUf;ft[k;  ghyhyaj;Jf;F cj;jput[ gpwg;gpf;FkhW[k; gzptd;g[ld; Btz;of;
\nbfhs;fpBwd;. … “@\n<\/p>\n
\t145. So, all the communications discussed above, especially the
\ncommunication between First defendant-Jeer and the H.R.& C.E. Department,
\nclearly proved that the H.R. & C.E. Department alone has control over the Temple
\nand the Jeer is only the hereditary Trustee of the Mutt and is the Madathipathi
\nof the Mutt pertaining to Arulmighu Azhagiya Nambi Temple. Therefore, the
\nargument advanced by learned counsel for the defendants that the Jeer has every
\nright, power and authority to instal and remove the Deities in the Temple, is
\nunacceptable one.\n<\/p>\n
\t146. Admittedly, on 2.6.2004, the Jeer Mutt people removed the Idol of
\nLord Shiva from the original place and the Lord Shiva Idol is now in “Dhanya
\nVaasam” (kept inside paddy). This has clearly proved that the first defendant-
\nJeer acted against his earlier statement.\n<\/p>\n
\t147. In this regard, it is worthwhile to refer Rules 31, 37 and 52 of the
\nManagement and Preservation of Properties of Religious Institutions Rules, which
\nare extracted hereunder:\n<\/p>\n
“The Management and Preservation of Properties of Religious Institutions Rules,
\n1964:\n<\/p>\n
\tRule 31: Repairs, alterations, etc., to Antiquities: (1) A trustee or the
\nBoard of Trustees as the case may be, shall not repair, alter, replace, sell,
\ngift away or destroy any antiquities or other objects of interest such a
\nsculptures, carvings, inscriptions or paintings, without the written permission
\nof the Commissioner and such permission shall be granted only on obtaining
\ncompetent advice thereon.\n<\/p>\n
\t(2) While granting permission under Sub-rule (1) the Commissioner shall
\nissue such instructions to the Trustee or the Board of Trustees, as may be
\nnecessary, for preservation of works of art, sculpture paintings, antiquities
\nand other articles of interest and the trustees shall be bound to carry out such
\ninstructions.\n<\/p>\n
\tRule 37: Care of structures: It shall be the duty of the trustee or the
\nBoard of Trustees to ensure the utmost care is taken of the architectural,
\nsculptural and archaeological features of every structure in the temple or on
\nits lands in his or its charge.\n<\/p>\n
\tRule 52: Alterations to or melting of idols : No trustee or the  Board of
\nTrustees shall alter the character of, or repair, remove, melt, or replace any
\nmetallic or other idol or image in the temple, whether fixed or otherwise,
\nwithout the express permission of the Commissioner in writing.”\n<\/p>\n
\t148. As per Rule 52 of the Management and Preservation of Properties of
\nReligious Institutions Rules, 1964, the Jeer has no power to remove the Lord
\nShiva Idol from the original place of installation. Hence, I am of the view that
\nthe first appellate Court committed error in coming to the conclusion that First
\ndefendant-Jeer has every right to alter, change, etc., of the Idols and the
\nVimanam (Gopuram), which is against the “Agama Saastras”. The substantial
\nquestion of law (v) is answered accordingly.\n<\/p>\n
\t149. Substantial question of law (iii):\n<\/p>\n
\tWhether the lower appellate Court is right in holding that as per
\nG.O.(Ms).No.55, dated 8.4.2005, the H.R. & C.E. Department, has ratified the
\nshifting of the Idol of Lord Shiva, when especially the Division Bench of  this
\nCourt has directed the lower Court to decide the suit, without reference to
\nG.O.(Ms).No.55, dated 8.4.2005 ?\n<\/p>\n
\tSince the Idol of Lord Shiva was removed and kept in “Dhanya Vaasam” (kept
\ninside paddy), immediately, the plaintiffs and villagers of Thirukurungudi sent
\nrepresentation(s) to the Government, in pursuance of which, explanation has been
\ncalled for from the Jeer by the Tamil Nadu H.R. & C.E. Department. The suit has
\nbeen filed on 1.7.2004 by the plaintiffs. Only during the pendency of the suit,
\nG.O.(Ms).No.55, Tamil Development, Culture and Religious Endowments Department,
\ndated 8.4.2005, which is marked as Ex.B-45, has been passed. In the said G.O.
\nitself, it is specifically stated that the suit is pending before the District
\nMunsif Court and challenging the interim order passed in the suit, the Jeer has
\npreferred a Civil  Revision Petition (Madurai Bench) before this Court, and in
\nthe meantime, Hindu Bhaktha Jana Sabai and Divya Desa  Parambariya Padukappu
\nPeravari,  preferred Writ Petitions and as seen from the said G.O., the belated
\npermission sought for shifting has been accorded by ratifying the act.
\nAdmittedly, the validity of  the said G.O. has been under challenge in
\nW.P.No.18450 of 2005 before this Court. At this juncture, it is appropriate to
\nincorporate the order passed by this Court while disposing of W.P.No.18450 of
\n2005 along with the other connected cases, on 3.10.2005:
\n\t“5. …. …. The last of the writ petition is W.P.No.18450\/2005.  The
\nwrit petitioner in that writ petition challenges the validity of G.O.Ms.No.55
\nTDC RE Department dated 08.04.2005.  Under this Government Order, the Government
\nratified the action of the temple authorities in shifting the shrine of Lord
\nSiva from Arulmigu Nambirayar Temple at Thirukurungudi to a new shrine. This
\nratification is stated to be under Rule 52 of the Management and Preservation of
\nProperties of Religious Institutions Rules framed under section 116 of the Hindu
\nReligious and Charitable Endowments Act.  Of course, as rightly contended by the
\nplaintiffs in the suit, the validity of the above referred to Government Order
\ncannot be challenged in that suit. In our considered opinion, the decision in
\nthe pending suit may have a bearing on the validity of the Government Order
\nchallenged in this writ petition. In other words, if the civil court, on
\nevidence, holds that shifting the idol of Lord Siva from it’s original place to
\nthe new place is not in violation of either Agama Sasthras or any known
\nreligious principle or faith, then it cannot be said that such a finding may
\nhave no bearing at all in deciding the validity of the Government Order.
\nTherefore, we are not taking up W.P.No.18450\/2005 for disposal and instead,
\ndirect the Registry to post it before court after O.S.No.288\/2004 pending on the
\nfile of the learned District Munsif, Nanguneri is disposed of.”\n<\/p>\n
\t150. So, the challenge to the said G.O. is pending before this Court in
\nW.P.No.18450 of 2005. In the said order dated 3.10.2005, the Division Bench of
\nthis Court has specifically mentioned that, “Therefore, we are not taking up
\nW.P.No.18450\/2005 for disposal and instead, direct the Registry to post it
\nbefore court after O.S.No.288\/2004 pending on the file of the learned District
\nMunsif, Nanguneri is disposed of.”  In such circumstances, the first appellate
\nCourt has considered the G.O. and came to the conclusion that the H.R. & C.E.
\nDepartment has ratified the act of shifting the Shrine of Lord Shiva from the
\noriginal place to the new place, and the first appellate Court, in paragraphs 60
\nand 61 of its judgment, came to the conclusion that as per Rule 52 of the
\nManagement and Preservation of Properties of Religious Institutions Rules, the
\nG.O. had been passed, giving permission for re-installing the Shrine of Lord
\nShiva into the new constructed place of the “Third Prakaram of  the Temple” as
\nper the decision of the Expert Committee of the Tamil Nadu H.R. & C.E.
\nDepartment and the permission was accorded in the said G.O. only after the
\nremoval of the Shrine. Hence, the first appellate Court committed error in
\ncoming to the said conclusion, relying on the said G.O. while disposing of the
\nFirst Appeals, when admittedly, the challenge to the said G.O. is pending before
\nthis Court.  Substantial question of law (iii) is answered accordingly.\n<\/p>\n
\t151. Substantial question of law (viii) :\n<\/p>\n
\tWhether the lower appellate Court is right in rendering the judgment
\nwithout disposing of the applications filed under Order 1 Rule 8(5) of CPC and
\nOrder 1 Rule 10(2) of CPC ?\n<\/p>\n
\tLearned counsel for the plaintiffs submitted that when the impleading
\npetitions are pending before the first appellate Court, it is not proper on the
\npart of the first appellate Court to hastily dispose of the First Appeals
\nsimultaneously  along with those impleading petitions, and it has not considered
\nthe impleading petitions in proper perspective, when admittedly, the suit is
\nfiled in a representative capacity. In such circumstances, it is the duty of the
\nfirst appellate Court to consider those interlocutory applications for
\nimpleadment, in its own merits and only after giving a detailed order, the First
\nAppeals should have been heard for arguments and disposed of  subsequently.\n<\/p>\n
\t152. Admittedly, the impleading applications were disposed of
\nsimultaneously on the same day the First Appeals were disposed of.  The first
\nappellate Court did not consider those impleading applications in proper
\nperspective and it will have a bearing on the disposal of the First Appeals, as
\nthe suit has already been filed in a representative capacity and impleading of
\nthose parties is necessary or not, has to be decided and finding has to be
\nrendered separately on the said applications and then only, the First Appeals
\nshould have been heard and disposed of.  Hence, I am of the view that the first
\nappellate Court committed error in disposing of the impleading applications
\nalong with the First Appeals.  Substantial question of law (viii) is answered
\naccordingly.\n<\/p>\n
\t153. Substantial question of law (x):\n<\/p>\n
\tWhether the lower appellate Court is right in rendering the judgment, when
\nTr.O.P.Nos.148 and 149 of 2009 were filed and pending on the file of the
\nPrincipal District Judge, Tirunelveli, wherein serious allegations were made
\nagainst the learned Sub-Judge, Valliyoor, who disposed of the appeals ?
\n\tLearned counsel for the plaintiffs submitted that while Tr.O.Ps. were
\nfiled and pending, making serious allegations against the Judicial Officer
\nconcerned,  the Judicial Officer concerned has hastily disposed of the First
\nAppeals and hence, he prayed for setting aside the judgment and decree of the
\nfirst appellate Court. The pendency of the Tr.O.Ps. will have no bearing on the
\ndisposal of the First Appeals, since there is no evidence to show that the
\nplaintiffs have obtained any order of interim stay of disposal of the First
\nAppeals. Hence, I am of the view that the question as to whether the learned
\nSubordinate Judge, Valliyoor is right in rendering the judgment, when the said
\nTr.O.Ps. are pending, is not a substantial question of law to be considered and
\nhence, this Court is not answering this substantial question of law.\n<\/p>\n
\t154. One more aspect to be noted is that during the pendency of
\nS.A.(MD).Nos.1075 of 2009 and 176 and 646 of 2010, one Valli Manalan and
\nVadivazhagiya Nambi, filed an application seeking for leave to file Second
\nAppeal in S.A.S.R.(MD).No.16491 of 2010. These two petitioners earlier filed
\nI.A.No.130 of 2009 in A.S.No.29 of 2007, I.A.No.133 of 2009 in A.S.No.37 of 2007
\nand I.A.No.136 of 2009 in A.S.No.63 of 2007 before the lower appellate Court to
\nsubstitute their names in the name of the plaintiffs. After contest, the said
\nI.As. were dismissed. The Second Appeal has been preferred by the plaintiff(s)
\non 24.11.2009 in S.A.(MD).No.1075 of 2009. But the petition to leave to appeal
\nin S.A.S.R.(MD).No.16491 of 2010, was filed only on 12.4.2010, as the said
\napplications in I.As. seeking to substitute their names in the place of the
\nplaintiffs, were dismissed by the first appellate Court. Only during the course
\nof arguments in S.A.(MD).Nos.1075 of 2009 and 176 and 646 of 2010, the
\nappellants in S.A.S.R.(MD).No.16491 of 2010 appeared through counsel on 3.9.2010
\nwhich was the last date of hearing the Second Appeals, and their counsel filed
\nthe written arguments only on that day. Furthermore, in the said three Second
\nAppeals, the appellants\/plaintiff(s)\/defendant(s) in the respective cases,
\nengaged counsel(s) and argued the cases elaborately. The interest of the
\npetitioner\/appellant in S.A.S.R.(MD).No.16491 of 2010, is protected by the
\nappellants in the other three Second Appeals. In such circumstances, there is no
\nreason to allow the petition seeking leave to appeal in S.A.S.R.(MD).No.16491 of
\n2010, which is accordingly rejected. Consequently, S.A.S.R.(MD).No.16491 of 2010
\nis also rejected.\n<\/p>\n
\t155. In view of the answers given above to the substantial questions of
\nlaw:\n<\/p>\n
\t(i) The plaintiffs have locus-standi to file the suit in a representative
\ncapacity;\n<\/p>\n
\t(ii) D2 and D3\/H.R. & C.E. authorities sought for explanation from the
\nfirst defendant-Jeer regarding the removal of the Idol of Lord Shiva from the
\nplace, which is admittedly now kept in “Dhanya Vaasam” (inside paddy). This
\nshows that the first defendant-Jeer has no authority to remove the Idol of Lord
\nShiva from the place where it was originally situated;\n<\/p>\n
\t(iii)  the Government have also passed the G.O. ratifying the said action
\nof the Jeer, when admittedly, as on today, the challenge to the said G.O. is
\npending before this Court in W.P.No.18450 of 2005\n<\/p>\n
\t156. The judgment and decree of the first appellate Court are liable to be
\nset aside and that of the trial Court are to be restored. Therefore, the
\nplaintiffs are entitled to get the declaration that the demolition, removal and
\nre-location of the Lord Shiva\/Mahendragirinathar Sannadhi situated on the north-
\neast of Sancum Sanctorum of the Temple and in front of the Shrine Veetrirundha
\nNambi, to a different place, within the premises of Arulmighu Azhagiya
\nNambirayar Temple, Thirukurungudi, is illegal and invalid. Accordingly, the
\ndeclaration sought for by the plaintiffs, is granted. There will be a direction
\nto defendants 1 to 4 to restore the Lord Shiva Sannadhi, namely Arulmighu Sri
\nMahendragirinathar, to the original place from where it was removed, within
\nthree months from today.\n<\/p>\n
\t157. For the foregoing reasonings:\n<\/p>\n
\t(a) The Second Appeal filed the plaintiffs in S.A.(MD).No.1075 of 2009 is
\nallowed.\n<\/p>\n
\t(b) The Second Appeal filed by D5, in S.A.(MD).No.176 of 2010, is also
\nallowed.\n<\/p>\n
\t(c) The Second Appeal filed by D6,  in S.A.(MD).No.646 of 2010, is also
\nallowed.\n<\/p>\n
\t(d) The Second Appeal in S.A.S.R.(MD).No.16491 of 2010, filed by the
\nproposed parties who sought for impleadment before the first appellate Court
\nduring the pendency of First Appeals, and leave to sue in M.P.(MD).No.1 of 2010
\nin S.A.SR.(MD).No.16491 of 2010, are rejected.\n<\/p>\n
\t(e) The judgment and decree of the first appellate Court are set aside and
\nthat of the trial Court are restored.\n<\/p>\n
\t(f)  The suit in O.S.No.288 of 2004 is decreed as prayed for.\n<\/p>\n
\t(g) There will be a declaration that the demolition, removal and re-
\nlocation of the Lord Shiva\/Mahendragirinathar Sannadhi situated on the north-
\neast of Sancum Sanctorum of the Temple and in front of the Shrine Veetrirundha
\nNambi, to a different place, within the premises of Arulmighu Azhagiya
\nNambirayar Temple, Thirukurungudi, is illegal and invalid.\n<\/p>\n
\t(h) Three months’ time is granted to the defendants to re-instal the Lord
\nShiva Idol to its original place in Thirukkurungudi Azhagiya Nambirayar Temple.\n<\/p>\n
\t(i) No costs.\n<\/p>\n
\t(j) The Miscellaneous Petitions are closed.\n<\/p>\n
cs<\/p>\n
To<\/p>\n
1. Additional District Munsif, Nanguneri.\n<\/p>\n
2. Subordinate Judge, Valliyoor.\n<\/p>\n
3. Thirukurungudi Jeeyar Mutt,
\n   through its Jeeyer Swamigal,
\n   Thirukurungudi, Nanguneri Taluk.\n<\/p>\n
4. The Deputy Commissioner,
\n   H.R. & C.E., Nungambakkam, Chennai.\n<\/p>\n
5. The Joint Commissioner,
\n   H.R. & C.E., Tirunelveli,
\n   Thiruvanandapuram Road,
\n   Palayamkottai, Tirunelveli.\n<\/p>\n
6. The State of Tamil Nadu,
\n   through its District Collector,
\n   Kokkirakulam, Tirunelveli-9.\n<\/p>\n
7. The Record Keeper, V.R. Section,
\n     Madurai Bench of Madras High Court, Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Chockalingam (Now Died) vs Nambi Pandiyan on 29 November, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29\/11\/2010 CORAM THE HONOURABLE MS.JUSTICE R.MALA S.A.(MD).No.1075 of 2009 and S.A.(MD).No.176 of 2010 and S.A.(MD).No.646 of 2010 and S.A.S.R.(MD).No.16491 of 2010 and M.P.(MD).No.1 of 2010 in S.A.S.R.(MD).16491 of 2010 and M.P.(MD).Nos.1 of 2009 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-349","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nChockalingam (Now Died) vs Nambi Pandiyan on 29 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chockalingam-now-died-vs-nambi-pandiyan-on-29-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chockalingam (Now Died) vs Nambi Pandiyan on 29 November, 2010 - 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