{"id":61094,"date":"2003-06-27T00:00:00","date_gmt":"2003-06-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/in-the-high-court-of-judicature-at-vs-commissioner-on-27-june-2003"},"modified":"2016-09-11T11:29:05","modified_gmt":"2016-09-11T05:59:05","slug":"in-the-high-court-of-judicature-at-vs-commissioner-on-27-june-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/in-the-high-court-of-judicature-at-vs-commissioner-on-27-june-2003","title":{"rendered":"In The High Court Of Judicature At &#8230; vs Commissioner on 27 June, 2003"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">In The High Court Of Judicature At &#8230; vs Commissioner on 27 June, 2003<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 27\/06\/2003\n\nCORAM\n\nThe Honourable Mr. Justice P. SHANMUGAM\nand\nThe Honourable Mrs. Justice R. BANUMATHI\n\nAppeal Suit No.558 of 1986\n\nSengoda Goundar (died)\n\n2.  K.S. Pachiammal\n3.  K.S. Malaisamy Kounder\n4.  K.S. Kalidas                                        ..  Appellants\n\n    (Appellants 2 to 4 brought on\n        record as L.Rs. of deceased\n        sole appellant vide Order of\n        Court dt.4.4.2002 made in\n        CMP Nos.3240 to 3242 of 2002)\n\n-Vs-\n\n1.  Commissioner\n    Hindu Religious and Charitable\n    Endowments Department\n    Madras-34.\n\n2. Deputy Commissioner\n   Hindu Religious and Charitable\n   Endowments Department\n   Coimbatore.\n\n3. Assistant Commissioner\n   Hindu Religious and Charitable\n   Endowments Department\n   Erode.\n\n4.  K.S. Kaliappan\n5.  A.P. Thavasi\n6.  S.P. Duraiswamy                                     ..  Respondents\n\nPRAYER :        Appeal against the judgment and decree dated 30.9.1985 made in\nO.S.  No.150 of 1982 on the file of the Subordinate Judge, Gobichettipalayam.\n\n!For Appellant :  Mrs.  Hema Sampath\n\n^For Respondent :  Mr.  G.  Sukumar,\n                Special Government Pleader\n                for H.R.  &amp; C.E.  Department\n                (R-1 to R-3).\n\n:J U D G M E N T\n<\/pre>\n<p>P.SHANMUGAM, J.\n<\/p>\n<p>                Plaintiff is  the  appellant.    The  suit  was  filed  for  a<br \/>\ndeclaration  that  the  suit  property  was only a Samadhi and not a religious<br \/>\ninstitution and for permanent injunction.  The  suit  was  dismissed  and  the<br \/>\nappeal is against this judgment and decree.\n<\/p>\n<p>        2.      The  case of the plaintiff is that the suit property is called<br \/>\nMalaikaruppaswami Temple and is a Samadhi of the forefather of the  plaintiff,<br \/>\nnamely  Malaiswami; the said Malaiswamy had spiritual powers and became a Yogi<br \/>\nand he had been treating the diseases of the  villagers;  he  was  worshipping<br \/>\nMuneeswaram  and  Karuppannaswami;  he  attained Samadhi and was buried at the<br \/>\nfoot of Bargur Hills  and  a  samadhi  was  constructed;  subsequently,  &#8216;Bali<br \/>\nPeetam&#8217;  was  constructed  and  images of Thavasi and Muni were constructed to<br \/>\nguard his Tomb; for identification purposes, it is  called  &#8216;Malaikaruppaswami<br \/>\nTemple&#8217; and the Samadhi was treated as a sacred place by offering regular Guru<br \/>\nPooja; and  therefore, the said Samadhi is not a religious institution.  While<br \/>\nso, according to the plaintiff, the Assistant  Commissioner,  Hindu  Religious<br \/>\nand  Charitable  Endowments Department appointed defendants 4 to 6 as Trustees<br \/>\nfor the suit Samadhi, treating it as  temple  and  therefore,  it  had  become<br \/>\nnecessary for a suit for declaration and permanent injunction.\n<\/p>\n<p>        3.      The  Hindu  Religious  and  Charitable  Endowments  Department<br \/>\nopposed the relief by filing a written statement inter alia contending that it<br \/>\nis factually incorrect to state that the site in dispute is  only  a  Samadhi.<br \/>\nAccording  to them, the matter had been concluded against the petitioner in an<br \/>\nearlier proceedings initiated as early as in the year 1937 whereby  the  place<br \/>\nwas  declared  as  a public temple and in subsequent civil proceedings between<br \/>\nthe parties in reference to this temple, it was treated as a public  religious<br \/>\ntemple.   According  to  them,  the  plaintiff  has to prove that it is only a<br \/>\nSamadhi.  They therefore prayed for dismissal of the suit.\n<\/p>\n<p>        4.      After considering  the  exhibits,  the  documentary  and  oral<br \/>\nevidence,  the  learned  Subordinate  Judge  came  to  the conclusion that the<br \/>\nplaintiff is not entitled for a permanent injunction and that the suit  temple<br \/>\nis a public religious temple.\n<\/p>\n<p>        5.      Learned counsel  Mrs.  Hema Sampath appearing on behalf of the<br \/>\nappellants inter alia contended that the Sub-court had erred in  holding  that<br \/>\nit  is  a  public  temple  by  an  erroneous  interpretation and rejecting the<br \/>\ndocumentary and oral evidence.  According to her, the appellant  was  never  a<br \/>\nconsenting  party  to  all  the  previous  proceedings and therefore, the said<br \/>\nproceedings are not binding on him.  She also states that the existence of the<br \/>\nSamadhi in the suit premises is not denied and therefore, the judgment of  the<br \/>\nlearned Subordinate Judge is liable to be set aside.\n<\/p>\n<p>        6.      Learned counsel Mr.    G.  Sukumar, Special Government Pleader<br \/>\nappearing on behalf of the Department submitted that the issue  is  no  longer<br \/>\nres  integra  as  that  the  question  had  already been concluded against the<br \/>\nplaintiff and according him, the factual position that the suit premises is  a<br \/>\npublic religious temple requires no further consideration.\n<\/p>\n<p>        7.      We  have  heard  the  counsel,  gone  through  the records and<br \/>\nconsidered the matter carefully.\n<\/p>\n<p>        8.      The fact that the suit premises is located in the forest  area<br \/>\nof  Andiyur  Village and is called &#8216;Malaikaruppaswami Koil&#8217; is not in dispute.<br \/>\nThe Commissioner has filed his reports under Exhibits C.1, C.2 and C.3.    The<br \/>\nreports are  dated 19.4.1984 and 17.12.1984.  The Commissioner&#8217;s reports state<br \/>\nthat the suit temple is a temple consisting of a number of deities.  They  are<br \/>\nreferred  to as G.1 to G.5 &#8211; the figures of Thavaguru daities, G.6 &#8211; the deity<br \/>\nof Muni and G.7 &#8211; Kannimaswamis.  There are platforms for  these  deities  and<br \/>\nvarious  animal figures are placed adjoining these deities and spears are also<br \/>\ninstalled.   It  is  stated  that  there  are  deities  of  Thavasiappan   and<br \/>\nMuneeswaran with  a  height  of  8  feet  and  3  feet respectively.  Besides,<br \/>\nSivalinga, Nandi and Hari figures are drawn.  There are a number  of  pictures<br \/>\nof Hindu  Gods  and  lamps  adorning  the  Temple and Uggiragam.  A Sri Chakra<br \/>\npicture also is affixed on the wall.  It is also found to contain four deities<br \/>\nof a height of half feet each and they are called Kannimaswamis.  It  is  also<br \/>\nfound that  more than 50 steel spears appear to have been installed.  Besides,<br \/>\nthere are a number of bells.  The temple has got a number of figures of horse,<br \/>\ncow, elephant, deer and tiger made of clay.\n<\/p>\n<p>        9.      Apart from this factual existence of all the ingredients of  a<br \/>\ntemple, the  copy  of  the  judgment  in  O.S.   No.97 of 1937 dated 25.7.1937<br \/>\nproduced before us concludes the  issue.    That  was  a  suit  filed  by  one<br \/>\nKaruppuswami  for  a declaration of his right for possession and management of<br \/>\nthe Madappalli utensils and other properties of the deities and his  right  to<br \/>\nsupervise, conduct and control the regular pooja as well as the Mahasivarathri<br \/>\nand Chitra  festivals  pertaining to the said deities.  He has also sought for<br \/>\nan injunction to restrain the defendants therein and a  direction  to  deliver<br \/>\npossession of Madappalli and other movable properties.  The allegations of the<br \/>\nplaint  conceded  that  the  suit  temple was installed in a forest with three<br \/>\ndeities Thavasiappan, Malaikaruppaswami  and  Muniappan  and  that  they  were<br \/>\nestablished  by  the  plaintiff&#8217;s  ancestors  and  that  the  plaintiff  was a<br \/>\nhereditary trustee entitled to manage  and  perform  the  pooja  of  the  said<br \/>\ndeities.   One of the issues framed in that suit was whether the plaintiff was<br \/>\nthe Poojari and Dharmakarthari of the  suit  temple.    The  learned  District<br \/>\nMunsif  found  that it was not known as to who installed the deities, but both<br \/>\nthe parties agreed that they had been in  existence  for  a  very  long  time.<br \/>\nPoojas  were  being  conducted  every  Tuesday and four times in the year when<br \/>\nfestivals were  organized.    Besides,  there  was  a  Madappalli  which   was<br \/>\nconstructed  forty  years  ago on the site, which was given by the plaintiff&#8217;s<br \/>\nfather Manianna Gounder.  The age of the plaintiff was 75 years at  that  time<br \/>\nand  the  learned  District  Munsif  referred to a dispute in reference to the<br \/>\ntemple pertaining to the year 1919 and also criminal proceedings under Section<br \/>\n145 of the Code of  Criminal  Procedure.    Ultimately,  the  court  found  as<br \/>\nfollows:\n<\/p>\n<p>        &#8220;My  finding  on these issues, therefore, is that the plaintiff is not<br \/>\nthe Poojari or Dharmakartha of the  suit  deities  and  that  he  was  not  in<br \/>\nmanagement  and  possession  of the temple (shrines) and that the plaintiff is<br \/>\nnot entitled to the possession of the Madappalli.&#8221;\n<\/p>\n<p>The above said judgment was referred by the court below and the certified copy<br \/>\nof the said judgment produced before us clearly shows that the dispute was  in<br \/>\nreference  to the very temple and the findings of the existence of deities and<br \/>\nthe shrine, therefore, clearly shows  that  it  is  the  temple  that  was  in<br \/>\nexistence for nearly 100 years.\n<\/p>\n<p>        10.     Besides,  it  is  seen that by referring to these proceedings,<br \/>\nthe learned Sub-Judge has found that the plaintiff has admitted  that  in  the<br \/>\nproceedings in O.S.    No.97  of 1937 and O.S.  No.622 of 1939, the issue that<br \/>\nthe suit temple is a public temple has been decided.  Apart  from  the  above,<br \/>\nthe plaintiff&#8217;s  son had filed O.A.  No.183 of 1976 seeking to declare that he<br \/>\nis the hereditary Dharmakartha of the temple and the plaintiff was so declared<br \/>\nas per the consent letter given by the father of the plaintiff himself stating<br \/>\nthat he was not in a position to perform the functions of Dharmakartha.  There<br \/>\nwere further proceedings in O.A.  No.164 of 1983 and  O.A.    No.199  of  1982<br \/>\nwherein  additional  Dharmakarthas  were appointed as the son of the plaintiff<br \/>\nwas not performing his functions properly.  The further findings are that  the<br \/>\nincome  of  the  temple  has  increased  and the additional Dharmakarthas were<br \/>\nappointed due to the mismanagement of the son of the plaintiff and  therefore,<br \/>\nin order to get at the income of temple, the above suit had been filed seeking<br \/>\nto declare as if it is not a temple at all.\n<\/p>\n<p>        11.     As  rightly  pointed  out  by  the  learned  counsel  for  the<br \/>\nrespondents, temple has been defined under the Tamil Nadu Hindu Religious  and<br \/>\nCharitable  Endowments  Act,  1959 as &#8216;a place, by whatever designation known,<br \/>\nused as a place of public religious worship  and  dedicated  to,  or  for  the<br \/>\nbenefit  of,  or used as a right by the Hindu community or any section thereof<br \/>\nas a place of public religious worship&#8217;.  The suit  temple  comes  within  the<br \/>\nrequirements of  this definition.  Admittedly, the temple is under the control<br \/>\nof the Department from the year 1958 and the management of the plaintiff&#8217;s son<br \/>\nas the hereditary trustee was subjected to audit and report of the Department.<br \/>\nThe offerings and the Hundial income were submitted to inspection and audit of<br \/>\nthe Department and they  were  opened  and  the  collections  counted  in  the<br \/>\npresence of  the  Auditors  of the Department all these years.  Besides, it is<br \/>\nadmitted that people offer tonsures in the temple and  regular  offerings  are<br \/>\nalso made  to the temple by the devotees like pongal.  The devotees were given<br \/>\nVibudhi, all of which are important ingredients to show that it  is  a  public<br \/>\ntemple.   In  the  light  of  these  factual findings, the present plea of the<br \/>\nplaintiff that the institution is not a  public  temple,  but  it  is  only  a<br \/>\nSamadhi cannot  be  sustained.  In our view, the learned Subordinate Judge has<br \/>\ngone into the factual and the legal position in reference to the  suit  temple<br \/>\nand  has clearly found that the suit premises is a public religious temple and<br \/>\nthat the plaintiff has failed to prove that it is only a Samadhi\/<\/p>\n<p>        12.     For the above reasons, we find no grounds  to  interfere  with<br \/>\nthe judgment  of  the  court  below.    The appeal fails and it is accordingly<br \/>\ndismissed.  However, there will be no order as to costs.\n<\/p>\n<p>ab<\/p>\n<p>Index :  Yes<br \/>\nInternet :  Yes<\/p>\n<p>To<\/p>\n<p>1.  The Subordinate Judge,<br \/>\nGobichettipalayam (With Records).\n<\/p>\n<p>2.  The Record Keeper,<br \/>\nV.R.  Section,<br \/>\nHigh Court, Chennai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court In The High Court Of Judicature At &#8230; vs Commissioner on 27 June, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 27\/06\/2003 CORAM The Honourable Mr. Justice P. SHANMUGAM and The Honourable Mrs. Justice R. BANUMATHI Appeal Suit No.558 of 1986 Sengoda Goundar (died) 2. K.S. Pachiammal 3. K.S. Malaisamy [&hellip;]<\/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-61094","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>In The High Court Of Judicature At ... vs Commissioner on 27 June, 2003 - Free Judgements of Supreme Court &amp; 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\/in-the-high-court-of-judicature-at-vs-commissioner-on-27-june-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"In The High Court Of Judicature At ... vs Commissioner on 27 June, 2003 - Free Judgements of Supreme Court &amp; 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