In the High Court of Judicature at Madras Dated: 19.04.2011 Coram: The Honourable Mr. Justice R.SUBBIAH Second Appeal Nos.269 to 271 of 1998 1. P.Arumugham 2. T.Periaswami (deceased) 3. Thangammal 4. Jayanthi 5. Jagadeeswaran 6. Sakunthala 7. Netaji (Appellants 3 to 7 are brought on record as LRs.of the deceased 2nd appellant vide order of Court dated 01.02.2006 made in CMP.Nos.7948 to 7950 of 2005 and 7954 to 7956 of 2005) ..Appellants in S.A.Nos.269 and 271 of 1998 ..vs.. 1. Sri Vinayagar & Sri Mariamman Koil, rep.by its Trustee Govindaswamy 2. Deputy Commissioner (Administration), Hindu Religious and Charitable Endowments Dept., Coimbatore. 3. Commissioner, Hindu Religious and Charitable Endowments Dept., Nungambakkam, Chennai-34. 4. Executive Officer, Salem Sooramangalam Periamariamman Koil, Salem-5. ..Respondents in S.A.Nos.269 and 271 of 1998 https://hcservices.ecourts.gov.in/hcservices/ 1. T.Periaswami (deceased) 2. Thangammal 3. Jayanthi 4. Jagadeeswaran 5. Sakunthala 6. Netaji (Appellants 2 to 6 are brought on record as LRs.of the deceased sole appellant vide order of Court dt. 01.02.2006 made in CMP.Nos.7951 to 7953 of 2005) ..Appellants in S.A.270/1998 ..vs.. 1. R.Ramaraj, (Takkar and Administrator), Officer,Mariamman Koil, Sooramangalam, Salem-5. 2. Executive Officer, Salem Sooramangalam Periamariamman Koil, Salem-5. ..Respondents in S.A.270/1998 Second Appeals under section 100 of Civil Procedure Code filed, against the common judgment and decrees dated 25.07.1997 made in A.S.Nos.155, 81 and 82 of 1995 respectively on the file of Principal District Court, Salem, against the common judgment and decrees dated 30.12.1994 in O.S.Nos.2212 of 1973 and 1339 of 1985 on the file of Principal District Munsif Court, Salem. For Appellants : Mr.B.T.Seshadri For Respondents : Mr.V.Raghavachari for R1 in all SAs. Mrs.Shanthi Rakkappan,G.A.(CS)-R2toR4 in SA.269&271/98 and R2 in SA 270/98 COMMON JUDGMENT Second Appeal No.269 of 1998 has been preferred against the common judgment and decree passed by the learned Principal District Judge, Salem in A.S.Nos.155 of 1995, whereby the common judgment and decree passed by the learned Principal District Munsif, Salem, dated 30.12.1994 in O.S.No.2212 of 1973 with regard to the declaration https://hcservices.ecourts.gov.in/hcservices/ granted in M.P.No.19/70 were set aside and the order in M.P.No.19/70 passed by the Deputy Commissioner, HR & CE Department, Sooramangalam, Salem, was confirmed. 2. Second Appeal No.270 of 1998 has been preferred against the common judgment and decree passed by the learned Principal District Judge, Salem in A.S.Nos.81 of 1995, whereby the common judgment and decree passed by the learned Principal District Munsif, Salem, dated 30.12.1994 in O.S.No.1339 of 1985 were confirmed and the suit was dismissed. 3. Second Appeal No.271 of 1998 has been preferred against the common judgment and decree passed by the learned Principal District Judge, Salem in A.S.No.82 of 1995, whereby the common judgment and decree passed by the learned Principal District Munsif, Salem, dated 30.12.1994 in O.S.No.2212 of 1973, were confirmed. 4. Since all the appeals arise out of the common judgment delivered in A.S.Nos.155, 81 and 82 of 1995, these appeals are also disposed of by this common judgment. 5. Firstly, we deal with S.A.Nos.269 and 271 of 1998. Appellants 1 and 2 in both the appeals are plaintiffs 2 and 3 and the respondents are the defendants. The short facts of the suit in O.S.No.2212 of 1973, which are necessary for disposal of the appeals, are as follows: One B.V.Ponnusami, son of Velusamy Gounder had filed a suit in O.S.No.2212 of 1973 against the respondents in S.A.No.269 of 1998 for the following reliefs; (1) to declare that the suit properties absolutely belonged to the plaintiff; (2) to declare that the order of the 2nd defendant in M.P.No.19/1970 is not valid nor binding on the plaintiff; (3) to restrain the defendants from in any way interfering with the possession and enjoyment of the suit properties by the plaintiff by a permanent injunction by enforcing orders issued by the 2nd defendant; stating that the suit properties consisting of three shops and one thatched residential shed belonged to the plaintiff under a registered sale deed dated 12.06.1955 and since then, he has been in possession and enjoyment of the same. The suit properties originally belonged to one Shanmuga Gounder and after his demise in 1951, his wife Kolandhai Ammal became the owner of the same and the patta also stood in her name and from her, the plaintiff purchased the suit properties in 1955. It is not correct to state that the suit https://hcservices.ecourts.gov.in/hcservices/ properties were originally dedicated by one Nangavalli Govindaraju Chettiar in favour of the Mariamman Temple of Sooramangalam and they were not the trust properties and they were not dedicated to the said temple. While so, one of the trustees, by name, Kuppusami (who was removed from the trusteeship in 1976 and one Govindasami, the 1st defendant has been appointed in his place) approached the 2nd defendant, the Deputy Commissioner (Administration), HR & CE Department, Coimbatore, under Section 101 of the Madras Act 22 of 1959 in M.P.No.19/1970 by filing a petition to issue a Certificate under section 101 of the said Act in his favour to take possession of the suit properties. Though the plaintiff made his objection, the Deputy Commissioner, the 2nd defendant passed an order in favour of the 1st defendant. Hence, the suit filed for the reliefs stated supra. During the pendency of the suit, the sole plaintiff died and his son Arumugam and his son-ion-law Periasamy were added as plaintiffs 2 and 3 and they continued the proceedings. 5. But the case of the plaintiffs was resisted by the 1st defendant by filing a written statement, stating that the eastern portion of S.No.10/3, where the suit properties are situated, originally belonged to one Venkatarama Chettiar and Mohammad Ghouse. The entire S.No.10/3 along with the surrounded properties originally belonged to one Govindaraja Chettiar of Nangavalli, father of the said Venkatarama Chettiar and he sold the properties to others retaining about 0.11 cents in S.No.10/3. On coming to know that the Mariamman Temple was constructed in a portion of the land given by Gudalur Abbu Chettiar, Govindaraja Chettiar dedicated the said 0.11 cents to Sri Mariamman Temple of Sooramangalam. The then trustee of Sri Mariamman Temple appointed one Vaiyapuri Gounder, father of Shanmuga Gounder and father-in-law of Kolandhai Ammal, as Poojari of the Mariamman Temple. After the death of Vaiyapuri Gounder, his son Shanmuga Gounder stepped into the shoes of his father as Poojari of the temple and he was put in possession of the temple and its property and he was looking after the affairs of the temple in a fiduciary capacity. Taking advantage of the confidence reposed on him, Shanmuga Gounder surreptitiously included his name as a joint pattadar along with G.Venkataraman and Mohammed Ghouse, who were the owners of the entire extent in S.No.151/4 part. After the death of Shanmuga Gounder, from 1951 to 1953, his wife Kolandhai Ammal was in charge of the temple with the help of Ponnusamy, her adopted son. In the General Body Meeting held on 08.03.1953, a resolution was passed appointing the said Ponnusamy Gounder as a Poojari and thereafter, he was managing the affairs of the temple. The vendor of the plaintiff has no right whatsoever in the suit properties. The alleged thatched shed was constructed by the people by raising donations and as a matter of fact, even in the Panchayat records, the temple is described as the owner of the property. Therefore, the sale made by Kolandhai Ammal in favour of the plaintiff was not valid. The 1st defendant has also filed a petition in M.P.No.19/1970 before the 2nd defendant for the issuance of a Certificate under Section 101 of the https://hcservices.ecourts.gov.in/hcservices/ HR & CE Act for possession of the property and a Certificate was issued in favour of the first defendant and the order of the Deputy Commissioner is correct and lawful. Thus, he prayed for the dismissal of the suit. 6. (S.A.No.270 of 1998): Apart from the said suit, the said Periasamy, the 3rd plaintiff in O.S.No.2212 of 1973 filed another suit in O.S.No.1339 of 1985 against the defendants, who are the respondents in S.A.No.271 of 1998 for a permanent injunction stating that the suit properties belonged to deceased Ponnusamy and on 13.09.1985, the plaintiff, by a lease deed, got the properties on a monthly rent of Rs.200/- and under the lease deed, the plaintiff is entitled to sub-lease the suit properties and to make repairs whenever necessary in the same and the defendants' temple situated on the western side of the suit properties and on 07.10.1985, the defendants made attempts to evict the plaintiff from the possession of the suit properties and hence, the suit. 7. The defendants filed a written statement denying the averments that the suit properties were purchased by Ponnusami, the deceased plaintiff from one Kolandhai Ammal and he has no right to lease the same to Periyasamy, the plaintiff. The suit properties belonged to Sooramangalam Mariamman Temple. The application in O.A.No.47/63 filed by the said Ponnusami for a declaration that the suit temple and the suit properties belonged to him was dismissed. Thereafter, in M.P.No.19/1970, it was declared that the suit properties belong to the Sooramangalam Mariamman Temple and before the temple took possession of the suit properties, the deceased plaintiff filed O.S.No.2212 of 1973. 8. The trial court tried both the suits together and framed necessary issues and on the side of the plaintiffs, Periasamy, the son-in-law of deceased Ponnusamy (the sole plaintiff in O.S.No.2212 of 1973) was examined as P.W.1 besides examining one Ganapathy as P.W.2 and marked ten documents as Exs.A-1 to A-10 and on the side of the defendants, two witnesses were examined as D.Ws.1 and 2 and 32 documents were marked as Exs.B-1 to B-32. On a consideration of the oral as well as the documentary evidence, the trial court dismissed the suit in O.S.No.1339 of 1985 in toto and only granted a declaration in O.S.No.2212 of 1973 that the order passed by the 2nd defendant in M.P.No.19/1970 is null and void and dismissed the other reliefs. Aggrieved by the dismissal of declaration of title of the suit properties, plaintiffs 2 and 3 filed an appeal in A.S.No.82 of 1995 and against the granting of declaration in M.P.No.19/1970, the defendants filed an appeal in A.S.No.155 of 1995 and also against the dismissal of the suit in O.S.No.1339 of 1985, the plaintiff Periasamy filed an appeal in A.S.No.81 of 1995 before the Principal District Court, Salem and the lower appellate court tried all the appeals together and allowed A.S.No.155 of 1995 and dismissed A.S.Nos.81 and 82 of 1995. Challenged the correctness of the same, these second https://hcservices.ecourts.gov.in/hcservices/ appeals are filed. During pendency of the second appeals, Periasamy died and his legal representatives were brought on record as appellants 3 to 7 in S.A.Nos.269 and 271 of 1998 and appellants 2 to 6 in S.A.No.270 of 1998. 9. At the time of admission of the second appeals, this Court has framed the following common substantial questions of law for consideration: S.A.Nos.269 and 271 of 1998: (1) Whether the finding of the First Appellate Court that even though an application under Sec.101 of Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959 has not been made by all the Trustees, but by only one, a suit for declaration in this behalf has to be filed only in the Subordinate Judge's Court and not in the District Munsif's Court ? (2) Whether the First appellate Court is right in holding that in a case where there are more than one Trustee, an application under Section 101 of the HR & CE Act, could be filed by one of the Trustees and seek for possession ? (3) If such application is not maintainable, whether the order passed by the Deputy Commissioner on the basis of the application filed by one of the Trustees, possession could be recovered and whether the affected person should have recourse only under the provisions of the HR & CE Act and filed a suit in the Subordinate Judge's Court or whether the order could be treated as non est and the suit for declaration could be filed in a Court having pecuniary jurisdiction ? (4) Whether the findings of both the Courts regarding declaration of title prayed for by the appellants are vitiated for want of evidence ? (5) Whether the First Appellate Court having considered the additional documents filed by the Appellants at the First Appellate stage is justified in rejecting the application on the ground that no reasons have been given for not filing these documents earlier ? S.A.No.270 of 1998: (1) Whether the findings of the Courts below that by reason of the title having been found in favour of the temple in O.S.No.2212 of 1973 the appellant herein is not https://hcservices.ecourts.gov.in/hcservices/ entitled to an injunction correct ? (2) When the appellant is in lawful possession of the building as a tenant, can his possession be disturbed on the ground that the person who inducted the appellant in possession has not title to the property ? (3) Whether the Courts below are justified in law in rejecting the prayer for injunction on the ground that the title to the property has been found in allowed party ? 10. Though three second appeals have been filed, the learned counsel for the plaintiffs restricted his arguments to the relief of setting aside the declaration granted by the trial court in A.S.No.155 of 1995, whereby the lower appellate court reversed the finding of the trial court that the order passed by the 2nd defendant, the Deputy Commissioner (Administration), HR & CE Dept., Coimbatore, in M.P.No.19/1970 is not binding on the plaintiffs. Hence, this Court deals only with the issue involved in S.A.No.269 of 1998. 11. It is the case of the appellants/plaintiffs that the suit properties situated in S.No.10/3 measuring to an extent of 11 cents of Bodinaickenpatti and consisting of three shops and one thatched residential shed originally belonged to one Shanumuga Gounder and he was in possession and enjoyment of the same as his own properties till his death in 1951. After his demise, his wife Kolandhai Ammal became the owner of the suit properties as the only legal heir of deceased Shanmuga Gounder. The patta of the said properties stood in the names of Shanmuga Gounder as well as Kolandhai Ammal. The deceased plaintiff B.V.Ponnusamy purchased the said properties from Kolandhai Ammal in and by a sale deed dated 12.06.1955 marked as Ex.A-1 and since then, Ponnusamy was in possession and enjoyment of the properties. Thus, the deceased plaintiff put forth the case denying the claim of the defendants that the suit properties belonged to Nangavalli Govindaraju Chettiar, who dedicated the same to Mariyamman Temple of Sooramangalam. The former trustee Kuppusamy approached the 2nd respondent, the Deputy Commissioner, Hindu Religious and Charitable Endowments Board (HR & CE Board) filed a petition in M.P.No.19/1970 under Section 101 of the Madras Act 22 of 1959 to issue a Certificate in favour of the temple and the same was also ordered and hence, the deceased sole plaintiff filed the suit and sought the declaration that the order passed by the 2nd respondent in M.P.No.19/1970 is not valid and binding on the plaintiff along with the prayer of declaration of his title to the suit properties. 12. In this regard, the learned counsel for the appellants further submitted that Kuppusamy, one of the trustees of the Mariamman Temple had filed an application under Section 101 of HR & CE Act, 1959, before the Deputy Commissioner to take possession of the suit properties since, according to the respondents, the suit https://hcservices.ecourts.gov.in/hcservices/ properties belonged to the Mariamman Temple. The 2nd respondent also passed an order in the said petition in 1973. But in the said petition before the Deputy Commissioner, the other trustees were not shown as parties along with the former trustee. In this regard, the learned counsel, by inviting the attention of this Court to the plaint, written statement and the decree passed in O.S.No.162 of 1966 marked as Exs.B-17, 18 and 22 on the side of the respondents, submitted that the said suit was filed by the Trustees of the temple, viz., Srinivasa Chettiar, Komaraswamy Udayar, K.Govinda Rao, Subramaniam and Kuppusami; but they were not shown as parties in the application filed under section 101. It is well settled legal principle that if the office of co-trustees is a joint one, all of them forming, as it were one collective body and, as such, one such trustee cannot represent the institution before the 2nd respondent. The trial court, by considering these aspects, correctly granted the declaration sought for by the plaintiffs. In support of his contentions, the learned counsel has also relied upon the judgments reported in ANGAPPAN ..vs.. DEPUTY COMMISSIONER, H.R.& C.E. (1965 (I) M.L.J. 151 and P.V.KUPPAYANDI PILLAI ..vs.. VEERAKUTTI GOUNDER AND OTHERS (1966 (II) M.L.J.152). 13. The learned counsel for the appellants further submitted that though the lower appellate court has not differed with the finding arrived at by the trial court that the petition filed by one trustee before the 2nd respondent was not maintainable, it has set aside the judgment and decree of the trial court on the ground that the District Munsif Court has no jurisdiction to go into the validity of the order passed under section 101 of HR & CE Act. The learned counsel further submitted that if the District Munsif Court has no jurisdiction to set aside the order passed under section 101, it should have returned the plaint at the initial stage itself. When the suit was taken on file, no infirmity could be found in the decree granted by the trial court. Since the petition was filed under section 101 of the HR & CE Act, the order passed by the Deputy Commissioner cannot be construed as an order passed under section 101 of the said Act since under section 101, all the trustees should join in the petition. Hence, on that ground also, the lower appellate court ought not to have interfered with the decree and judgment granted by the trial court. 14. Per contra, the learned counsel for the first respondent in all the appeals would submit that the deceased plaintiff was challenging the order passed by the 2nd respondent only on the ground that the petition under section 101 of HR & CE Act was not filed by all the trustees and he has not come forward to dispute the title of the temple or to assert his right as a lessee. When the deceased plaintiff had not asserted his right as a lessee, he has no right to challenge the order passed by the Deputy Commissioner and hence, no infirmity could be found in the finding arrived at by the lower appellate court. https://hcservices.ecourts.gov.in/hcservices/ 15. This court has paid its anxious consideration on the submissions made by the learned counsel on either side. 16. The submissions made by the learned counsel for the appellants fall under two folds; (1) since all the trustees not joined in filing petition under section 101 before the 2nd respondent, the order passed by the 2nd respondent cannot be construed as an order passed under section 101 and therefore, the lower appellate court ought not to have interfered with the decree passed by the trial court stating that the District Munsif Court has no jurisdiction to deal with that order; (2) if the trial court has no jurisdiction to go into the order under section 101, it ought to have returned the plaint at the initial stage and since the suit was taken on file, no infirmity could be found in the declaration granted by the trial court. 17. With regard to the first submission, I find from the materials on record, one application under section 101 of the HR & CE Act was filed by Kuppusamy, the former trustee, to enable him to take possession as the trustee of the temple. As contended by the learned counsel for the appellants, apart from Kuppusamy, there are four other trustees for the Mariamma Temple, which could be evident from the plaint and decree passed in O.S.No.162 of 1966 on the file of District Munsif Court, Salem, marked as Exs.B-18 and B-22, viz., namely, A.Srinivasa Chettiar, S.Komaraswamy Udayar, K.Govinda Rao, M.D.Subramaniam and K.Kuppusami, but they were not the parties to the said application filed under section 101. It is well settled legal principle that when more than one trustee has been appointed, all of them should jointly file a petition before the 2nd respondent; otherwise, the application will not be valid. In this regard, it would be appropriate to refer the judgment relied on by the learned counsel for the appellants in 1965(I) M.L.J.151, wherein it has been held as follows: "An application for the issue of a certificate under section 101 of the Madras Hindu Religious and Charitable Endowments Act, by one only of the trustees where there are more than one, even if he happens to be the Chairman of the Board of trustees or the Managing trustee, would be incompetent. It would be necessary that the entire body of trustees should apply. On a plain reading of the section it is clear that when a single trustee is appointed, he would undoubtedly have the right to apply for the certificate and then, armed with the https://hcservices.ecourts.gov.in/hcservices/ certificate, apply again to the Magistrate for being put in possession of the property of the institution. But when more than one trustee has been appointed, all of them should apply together. This is in accord with the true principle. It is well-settled that in the case of co-trustees the office is a joint one, all of them forming, as it were one collective body. They should therefore execute the duties of their office in their joint capacity. The application for the certificate is itself a statutory proceeding and it is only the entire body of trustees that can represent the institution in such proceedings. A "trustee" means all the trustees when there is more than one appointed". 18. In 1966 (II) M.L.J.152 (supra), it has been held as follows: "An application under section 101 of the Madras Hindu Religious and Charitable Endowments Act of 1959 has to be made by all the trustees appointed by the Area Committee. The fact that one of the trustees had resigned but whose resignation had not been accepted by the Commissioner on the date of application for delivery under section 101 renders the application as if that trustee had not joined in the application. Such an application under section 101 is not maintainable. 19. In fact, the courts below have accepted the said proposition and even there is no quarrel for this Court to accept the said proposition. Though the lower appellate court had accepted the finding of the trial court, the lower appellate court has set aside the judgment and decree of the trial court on the ground that the District Munsif Court has no jurisdiction to go into the validity of the order passed by the Deputy Commissioner (Administration), HR & CE Department under section 101 of the HR & CE Act. With regard to the findings of the lower appellate court on the jurisdiction of District Munsif Court, the learned counsel for the appellants contended that since the other trustees have not joined in filing the application under section 101, the order passed by the 2nd respondent Deputy Commissioner cannot be construed as an order passed under section 101 and the same has to be construed as an order not passed under section 101 and hence, the question of setting aside the decree and judgment of the District Munsif Court for want of jurisdiction may not arise. But, in my considered opinion, this submission made by the learned counsel for the appellants cannot be accepted because the former trustee had filed the application in the year 1970 only under section 101 of HR & CE Act and by considering the application under section 101, the 2nd respondent has also passed the order in 1973. Since the other trustees have not joined with