IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.07.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.792 and 794 of 1997 N.Natesa Iyer .Appellant in both appeals/Plaintiff Vs. 1. The Commissioner H.R. & C.E. (Admn) Dept Madras-34 2. T.Venkatarama Reddiar .Respondents in both appeals/Defendant These appeal suits have been filed under Section 96 of the Civil Procedure Code r/w Section 70(2) of the Hindu Religious and Charitable Endowment Act 22/59 as against the common judgment and decrees of the learned Subordinate Judge, Vriddhachalam dated 24.12.1996 made in O.S.Nos.252/1991 and 251/1991 respectively and to set aside the same. For Appellant : Mr.K.Jayaraman (both Appeals) For Respondents : Mr.M.R.Murugesan, (for R1) Spl. Govt. Pleader (HR & CE) (for R2) No appearance (both Appeals) J U D G M E N T These two appeals have been preferred against the common judgment and decrees of the Trial court dated 24.12.1996 made in O.S.No.252/1991 and O.S.No.251/1991. 2. The circumstances under which these appeal happened to be preferred, can be briefly stated as follows:- i) The appellant in both the appeals filed an application before the Deputy Commissioner (HR & CE), Tiruchirapalli for a declaration under Section 63(b) of the Hindu Religious and Charitable Endowments Act, 1959 that he was holding office as a hereditary trustee of Sri Vinayagar temple, Sri Pidari temple, Sri Ayyanar temple and Sri Mariamman temple at Ko-Poovanur village in https://hcservices.ecourts.gov.in/hcservices/ Vriddhachalam Taluk, Cuddalore district. The said claim was made on the basis of his contention that the temples were founded by his forefather Chinnasamy Iyer and the management of the temple continued to vest with the members of the appellant's family hereditarily from generation to generation; that the name of the appellant's grand father had been inscribed on the "Thiruvachi" and that the entire 6.35 acres of land belonging to the temples continued to be in the possession and enjoyment of the appellant's grand father, after his death in the enjoyment of the father of the appellant and then at last in the possession and enjoyment of the appellant. It was his further contention before the Deputy Commissioner (HR & CE), Tiruchirapalli that they were doing daily pooja and 'Neivathyam' with the income derived from the above said land; that they were doing it in their capacities as hereditary trustees of the temples and that the further fact that all panchaloga Vikrahas and jewels of the temples were in the custody of the appellant and before him his father and before him his grand father, would be a clear evidence to show that the appellant was the hereditary trustee of the temples. ii) The said application filed under Section 63(b) of the Hindu Religious and Charitable Endowment Act, 1959 was initially taken on file as O.A.No.125/1978 by the Deputy Commissioner (HR & CE), Tiruchirapalli on his file. After enquiry, the said application was dismissed. The Commissioner (HR & CE) allowed an appeal filed by the appellant herein and remitted the matter back to the Deputy Commissioner (HR & CE) for fresh disposal after further enquiry. After remand, the said application was re-numbered as O.A.No.16/1983 on the file of the Deputy Commissioner (HR & CE), Tiruchirapalli. iii) When the said petition was thus pending before the Deputy Commissioner (HR & CE), Tiruchirapalli one Venkatarama Reddiar, the second respondent herein, got himself impleaded in the said application by filing an application for impleadment, which was ultimately allowed by the Deputy Commissioner (HR & CE). The second respondent also filed a parallel application, which was taken on file by the Deputy Commissioner (HR & CE) as O.A.No.64/1983, for declaring him to be the hereditary trustee of the above said temples. iv). A common enquiry was conducted in both the applications by the Deputy Commissioner (HR & CE) and at last, on 11.08.1996, the Deputy Commissioner (HR & CE) passed a common order dismissing the application filed by the appellant (O.A.No.16/1983) and allowing the application filed by the second respondent herein (O.A.No.64/1983). As against the said orders, the appellant preferred two appeal petitions before the Commissioner (HR & CE) in A.P.No.48/1986 and A.P.No.50/1986. The Commissioner (HR & CE), by orders dated 30.07.1991 and 31.07.1991 dismissed both the appeals (A.P.No.50/1986 and A.P.No.48/1986). v) Challenging the said orders and praying for decrees setting aside the above said orders of the Commissioner (HR & CE), the appellant herein filed two suits O.S.Nos.251/1991 and 252/1991 on the file of the Subordinate Judge, Vriddhachalam under Section 70 of https://hcservices.ecourts.gov.in/hcservices/ the Hindu Religious and Charitable Endowments Act, 1959. The said suits were resisted by the Commissioner (HR & CE) and Venkatarama Reddiar, the present respondents in these appeals, who were arrayed as defendants 1 and 2 in the said suits. The Commissioner (HR & CE)/first respondent herein resisted the suit contending that the forefathers of the appellant and the appellant himself functioned only as Poojaris (priests) of the temples in question; that the properties of the temples were with them as they were enjoined with the duty of doing daily pooja and neivethyam from the income derived from the properties of the temples and that neither the appellant nor his forefathers functioned as trustees of the temples at any point of time. It was also contended by the first respondent that in a previous case, namely O.S.No.1306/1928 on the file of District Munsif Court, Vriddhachalam, filed by the mother of the second respondent herein challenging the mortgage created by Nallathambi Pandaram, father of the appellant herein, in respect of the temple properties, a compromise decree was passed in which the said Nallathambi Pandaram (father of the appellant) admitted that the mother of the second respondent and her male issues and one Mutthal Reddiar were the hereditary trustees of the temples; that the said admission made by the father of the appellant was binding on the appellant/plaintiff and that the appellant/plaintiff was estopped from contending otherwise. vi) The second respondent also contested the suits raising similar objections in his written statements. In addition to that, it was also contended by the second respondent that patta was issued in the name of second respondent herein in respect of the temple properties, as he happened to be the hereditary trustee of the said temples and that the appellant herein filed an appeal I.A.T.Appeal No.7/1968 on the file of Sub-Court, Cuddalore, which was ultimately decreed in terms of a compromise memo in which also the appellant herein/plaintiff once again reiterated his commitment to be bound by the compromise decree passed in O.S.No.1306/1928 on the file of District Munsif Court, Vriddhachalam. vii) Based on the pleadings made on either side in both the suits, a common trial was conducted. The court below re-arranged and recast the issues common for both the cases which are as follows:- i) Whether plaintiff's contention that the plaintiff and his forefathers were the hereditary trustees of the suit temples is sustainable? ii) Whether the plaintiff and his forefathers have perfected title by adverse possession in respect of the suit temples? iii) Whether the orders passed by the Commissioner (HR & CE) in A.P.No.48/1986 and 50/1986 are liable to be set aside? iv) Whether the suits are liable to he dismissed for want of service of notice under Section 80 C.P.C.? https://hcservices.ecourts.gov.in/hcservices/ And v) Whether the appellant/plaintiff is entitled to the relief of permanent injunction as prayed for? 3. The appellant/plaintiff figured as the sole witness (PW-1) on the side of the appellant/plaintiff and the second respondent/second defendant figured as sole defence witness on the side defendants/respondents. 53 documents were marked as Ex.A1 to Ex.A53 on the side of the appellant/plaintiff, whereas eight documents were marked as Ex.B1 to Ex.B8 on the side of the respondents/defendants. 4. The court below considered the evidence brought before it in the light of the arguments advanced by the parties and upon such a consideration, came to the conclusion that there was no scope for interference with the order passed by the Deputy Commissioner (HR & CE), which stood confirmed by the orders of the Commissioner (HR & CE) and that the appellant herein/plaintiff was not entitled to the reliefs sought for in the Plaint. 5. Aggrieved by and challenging the above said common judgment and decrees dated 24.12.1996, the appellant herein/plaintiff has come forward with these appeals on various grounds set out in the Appeal Memoranda. 6. The fourth issue found in the judgment of the trial court after re-arranging and recasting the issues was to the effect, whether the suit was liable to be dismissed because of the failure to issue notice under Section 80 CPC? Though such a contention had been raised in the written statement, during the course of trial, it was admitted that notice had been given under Section 80 CPC prior to the filing of the suit and that the requirement of the said Section had been complied with. Thus, the court below, after recording the admission, made an observation that a decision on the said issue was not warranted in view of the admission. In fact the said issue was decided in favour of the appellant herein/plaintiff. All other issues were decided against the appellant and in favour of the respondents herein. As such the points that arise for consideration in these appeals are as follows:- 1) Whether the finding of the court below to the effect that the appellant/plaintiff and his forefathers were not the hereditary trustees of the suit temples requires any interference? 2) Whether the orders passed by the Commissioner (HR & CE)/first respondent herein in A.P.No.48/1986 and 50/1986 are liable to be set aside? And 3) Whether the appellant/plaintiff is entitled to the relief of permanent injunction as prayed for in this suit? https://hcservices.ecourts.gov.in/hcservices/ 7. The arguments advanced by Mr.K.Jayaraman, learned counsel for the appellant and Mr.M.R.Murugesan, learned Special Government Pleader (HR & CE) for the first respondent were heard. The materials on record were perused. 8. Though the appellant has included a number of grounds in the Appeal memorandum filed in each one of the appeals, the learned counsel for the appellant mainly based his arguments on the following two grounds alone:- 1) In small village temples, there is nothing wrong in the trusteeship residing with the Poojaris of the temples and in fact it is quite natural for such small temples to have the Poojariship and trusteeship in one and the same person/s. 2) The Deputy Commissioner (HR & CE) under Sections 63(b) of the Hindu Religious and Charitable Endowments Act, 1959 does have power only to decide the question whether a trustee holds or held office as hereditary trustee and in case of rival claims to hereditary trusteeship, the Deputy Commissioner does not have power to decide who among the rival claimants is the hereditary trustee. 9. On the other hand, it is argued on behalf of the respondents that the learned counsel for the appellant confined his arguments with regard to the above said aspects alone knowing fully well that, on merits the appeals are bound to fail. It is the further contention raised on behalf of the respondents that the appellant himself having approached the Deputy Commissioner (HR&CE) with a prayer for a declaration that he is the hereditary trustee of the suit temples and thus having invoked the powers of the Deputy Commissioner (HR&CE), shall not be allowed to plead that the Deputy Commissioner does not have the authority to decide the rival claims to hereditary trusteeship to the suit temples. It has also been contended that the question - "who was the hereditary trustee" - had already been decided in two former cases in which decrees were passed on the basis of compromise effected between the parties thereto; that the father of the appellant in one of those cases and the appellant himself in the other case had acknowledged the fact that the mother of the second respondent herein and her male issues were the hereditary trustees of the suit temples and the appellant and his forefathers were only poojaris entitled to enjoy the properties of the temples with an obligation to perform daily pooja and neivethyam using the income derived from the properties and that hence, apart from being bound by the said decrees, the appellant is also estopped from contending otherwise. 10. The further contention raised on behalf of the respondents is that in view of the earlier judgments which are binding on the appellant, the Deputy Commissioner could not have taken any other view than the one taken by him and that the same was rightly confirmed by the Commissioner (HR&CE)/first respondent herein/first defendant. It is also contended on behalf of the respondents that though the suits were filed under Section 70 of the Hindu Religious and Charitable Endowments Act, 1959, the court below, on an https://hcservices.ecourts.gov.in/hcservices/ appreciation of evidence adduced before it, has taken an independent decision that the appellant is not the hereditary trustee of the suit temples as claimed by him and on the other hand, the second respondent is the hereditary trustee and that therefore, the very plea made by the appellant in these appeals that the Deputy commissioner (HR&CE) did not have the power to decide who among the rival contestants is the hereditary trustee, has lost its significance, as the suit filed under Section 70 of the HR&CE Act cannot be construed to be an appeal and the court has to arrive at a decision based on the pleadings made before it and the evidence adduced before it. 11. In support of his contention that Section 63(b) of the Act does not enable the Deputy Commissioner (HR&CE) to decide who is the hereditary trustee, as there are rival claims made by the appellant/plaintiff and the second respondent/second defendant, the learned counsel for the appellant has cited the judgment of a single judge of this court pronounced in Aviyur Mariamman Temple by Hereditary Trustee Parasuraman v. T.N.Sundramoorthi Pillai and another reported in 1981 (1) MLJ 392. Thiru.Justice G.Ramanujam relying on the decisions made by this court in two earlier cases, namely Krishnaswami Raja v. Krishna Raja reported in (1968) 1 MLJ 119 and Rengayya Gounder v. Kannappa Naicker reported in (1971) 1 M.L.J. 358, has held that the power given to the Deputy Commissioner under Section 63(b) of the Hindu Religious & Charitable Endowments Act, 1959 was confined to a decision "whether a trustee holds or held office as a hereditary trustee" i.e. that decision should be in relation to the status of the office of the trusteeship, namely whether it is hereditary or not and that the Deputy Commissioner (HR&CE) is not competent to go into the further question as to who among the competing claimants is a hereditary trustee, as the same is not covered by the above provision. It has also been observed in the said judgment that the decision made by the Deputy Commissioner under Section 63(b) of the Hindu Religious and Charitable Endowments Act, 1959 regarding who among the competent claimants is a hereditary trustee, cannot bind the civil court and the civil court has to decide the question independently on the evidence adduced by the parties. 12. A careful reading of the said judgment relied on by the learned counsel for the appellant will show that the same will not lend any support to the contention raised in this case on behalf of the appellant. In the said case cited on behalf of the appellant, the status of the office of the trusteeship was not in dispute and it was admitted by both parties that the office was hereditary. The appellant therein filed an application before the Deputy Commissioner of HR&CE under Section 63(b) of Hindu Religious and Charitable Endowments Act, 1959 for a declaration that the office of the trusteeship in the temple was hereditary and that he was the hereditary trustee of the temple. The Deputy Commissioner granted the declaration as prayed for by him. Therefore, there was no occasion for any rival claim as no one was made a party respondent https://hcservices.ecourts.gov.in/hcservices/ before the Deputy Commissioner, to challenge the said order by filing a suit under Section 70 of the HR & CE Act and in fact no suit under Section 70 was filed to challenge the said order of the Deputy Commissioner (HR & CE). Under such circumstances alone, the rival claimant filed a regular suit before the District Munsif for a declaration that he was the hereditary trustee of the temple and for a permanent injunction restraining the defendants therein from interfering with his functioning as a trustee of the temple. The defendant therein, in whose favour the order of the Deputy Commissioner declaring him to be a hereditary trustee was there, contended that the order had become final and conclusive, as the same was not challenged under Section 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. The trial court upheld the contention of the defendants therein, which was reversed by the first appellate court holding that the Civil Court should have made a decision independent of the decision made by the Deputy Commissioner, since the order of the Deputy Commissioner was not challenged by way of a suit under Section 70 of the Act. Resultantly the suit was remitted back to the trial court for fresh disposal on merits. The said order of remand was challenged before the High court and the High Court concurred with the lower appellate court and dismissed the appeal filed against the order of remand. 13. Two things emerge from the said judgment relied on by the learned counsel for the appellant. First of all, it was held therein that the decision of the Deputy Commissioner as to who among the rival claimants was the hereditary trustee of the temple was not binding on the Civil Court because the said order was not challenged in a statutory suit under Section 70 of the HR&CE Act, 1959. The power given to the Deputy Commissioner under Section 63 (b) of the HR&CE Act is confined to render a decision as to the status of the office of the trusteeship, i.e. 'whether the same is hereditary or not?' When the status of the office is decided or admitted, then the further question as to who among the rival claimants is the hereditary trustee, is outside the scope of "the exclusive power" given to the Deputy Commissioner, in the sense that any decision rendered by the Deputy Commissioner in this regard, shall not be binding on the Civil Court and the Civil Court has to render an independent finding. Application of such a restriction shall not be extended to the decisions rendered by the Civil Courts even in a suit filed under Section 70 of the HR&CE Act. Though the scheme of the Act provides for filing a suit for setting aside the order of the Deputy Commissioner passed under Section 63(b) of the HR&CE Act, the same is nonetheless an original suit in which the question whether who among the rival contestants is the hereditary trustee of the suit temple shall be very much within the scope of the suit if the same is raised as an issue in the suit, with a rider that the said question has to be decided independently based on the evidence adduced before the court. When such a decision is rendered by the Civil Court in a statutory suit filed under Section 70 of the HR&CE Act, the parties to the suit and anybody claiming through such parties will lose their right to file a fresh (regular) suit. https://hcservices.ecourts.gov.in/hcservices/ 14. In the case on hand, the appellant himself invoked the jurisdiction of the Deputy Commissioner which led to the invocation of the said power of the Deputy Commissioner by the second respondent also. The Deputy Commissioner, rightly or wrongly rendered a decision, of course based on earlier judgments between the parties, to the effect that the appellant was not the hereditary trustee and the second respondent was the hereditary trustee. The same was challenged initially before the Commissioner (HR&CE), the first respondent herein/first defendant, who also confirmed the order of the Deputy Commissioner. Thereafter, the appellant himself filed the suits under Section 70 of the HR&CE Act, not only to set aside the order of the Commissioner (HR&CE) confirming the order of the Deputy Commissioner, but also for an injunction restraining the defendants from interfering with his peaceful possession and management of the suit temples in his capacity as hereditary trustee of the suit temples. The prayer in the plaint has been made in an ingenious way as if the suit was for setting aside the order of the Deputy Commissioner and for an injunction. However, in the plaint, the appellant had challenged the order of the Deputy Commissioner only on factual matrix and not on the ground that the Deputy Commissioner did not have power to decide whether one holds or held office as hereditary trustee. For the purpose of deciding whether the appellant/plaintiff shall be entitled to the relief of injunction as sought for, a decision as to whether he is a hereditary trustee of the suit temples has become necessary. As the prayer for injunction was made on the specific plea that the appellant/plaintiff was in possession and enjoyment of the temples and their properties in his capacity as hereditary trustee, which was disputed by the respondents/defendants, decision on the issue regarding the said claim, at least incidentally, has become a necessary one. After having invited framing of an issue to that effect and a decision regarding the said issue, the appellant/plaintiff shall not be entitled to contend that the said question was decided without jurisdiction. A proper reading of the judgment relied on by the learned counsel for the appellant in the light of the concerned provision of law, will make it clear that though it was observed in the said decision that the Deputy Commissioner's power under Section 63(b) did not extend to rendering a finding as to who between the rival claimants was the hereditary trustee, the same should be interpreted to mean that such a decision rendered by the Deputy Commissioner shall not be binding on the Civil Court and that the Civil Court has to decide the question independently. Section 63 of the Hindu Religious & Charitable Endowments Act reads as follows: "Subject to the rights of the suit or appeal hereinafter provided the Joint Commissioner or the Deputy Commissioner, as the case may be, shall have power to enquire into and decide the following disputes and matters:- https://hcservices.ecourts.gov.in/hcservices/ (a) ---- (b) whether a trustee holds or held office as a hereditary trustee." 15. The question whether a person is a trustee can be said to be in-built in the question whether such person holds or held the office as hereditary trustee. Therefore, we cannot totally detach the first question from the second question to deny the power of the Deputy Commissioner to decide the issue. Therefore, while deciding the issue, whether the claimant holds or held office as hereditary trustee? whether he is the trustee?, can also be decided by the Deputy Commissioner incidentally. If such a decision is rendered when there are rival claimants, it is not obligatory on the part of the losing party to file the statutory suit under Section 70 of the HR&CE Act. The rival claims can be agitated by an ordinary suit in a civil court. On the other hand, if the losing party chooses to file a statutory suit under Section 70 of the HR & CE Act, then it cannot be said that the civil court dealing with the statutory suit under Section 70 shall have no power to decide the question who among the rival claimants is the hereditary trustee. But such a decision should be rendered by the court independently. When such an independent decision is rendered by the civil court, albeit, in a suit filed under Section 70 of the HR&CE Act, the same cannot be challenged citing the limitation of the