M.K. Gulam Rasul vs A/M. Dharmaraja @ Dhrowapathi Amman Temple

P. Murgesen, J.—This appeal is directed against the decree and judgment passed in A.S. No. 64/2007 on the file of Additional Sub Court,

Thanjavur dated 13.11.2007 reversing the decree and judgment passed in O.S. No. 68/2006 on the file of District Munsif Court, Thiruvaiyaru

dated 23.04.2007, raising the following substantial questions of law:

a) When the Executive Officer of A/M. Dhrowapathi Amman Temple has no power to file suit for recovery of possession in respect of A/M.

Dharmaraja Temple''s property whether the decree and judgment of lower appellate court is correct in law?

b) When the respondent had not pressed the earlier suit against the appellant for the same relief in O.S. No. 251/2004 in respect of same property

without the permission of court to file fresh suit on the same cause of action whether the decree and judgment of lower appellate court are liable to

be reversed for not considering the same?

c) Whether the decree and judgment of lower appellate court are liable to be reversed for not framing proper points for consideration?

d) Whether the decree and judgment of lower appellate court are liable to be reversed for not considering the relevant evidence on record?

The appellant is the defendant and the respondent is the plaintiff before the Trial Court.

The plaintiff has filed a suit in O.S. No. 68 of 2006 on the file of District Munsif Court, Thiruvaiyaru praying for a direction to the defendant to

hand over vacant possession after removing the super structure within the time fixed by this Court; to pay Rs. 16,000/- towards arrears of rent and

also to pay damages and use and occupation.

Before the Trial Court, P.W.1 and D.W.1 were examined and Ex.A1 to A11 and Ex.B1 to B6 were marked.

On consideration of the materials and evidence on record, the Trial Court dismissed the suit.

Challenging the judgment of the Trial Court, an appeal was preferred in A.S. No. 64/2007 on the file of Additional Sub Court, Thanjavur. The

Appellate Court allowed the appeal.

Challenging the judgment of the Appellate Court, the present Second Appeal has been filed by the appellant.

Heard the learned Counsel on either side.

It was argued before the Trial Court that the plaintiff, who is an Executive Officer of the Arulmighu Dharmaraja @ Dhrowapathi Amman

Temple, has no power to file a suit for recovery of possession. So, the competency and capacity of the Executive Officer was questioned. The suit

property belongs to the plaintiff''s temple, Arulmighu Dharmaraja Temple. Learned Counsel for the appellant argued that notice was sent by the

Executive Officer of the Temple under Ex.A4. Ex.A5 is the reply notice sent by the defendant''s Counsel to the plaintiff''s counsel. The appellant

has admitted in that notice that the suit property belongs to Arulmighu Dharmaraja Temple and his father was a tenant. So, the appellant is the

tenant under Arulmighu Dharmaraja Temple. But the Counsel for the appellant argued that the suit was filed by Arulmighu Dharmaraja @

Dhrowapathi Amman Temple by the Thakkar/Executive Officer of the said Temple. The Counsel further submitted that there is no temple by name

Arulmighu Dharmaraja @ Dhrowapathi Amman Temple.

P.W.1 spoke that, in the Revenue Records, there was an entry in respect of Dharmaraja Temple and it was called as Dhrowapathi Amman

Temple also. Ex.A2 is the Chitta given by the Assistant Tahsildar of Papanasam, which would show that Dharmaraja Temple has got the property.

Even in Ex.A4-notice sent by the plaintiff''s Counsel to the defendant, it is averred that the temple is called Arulmighu Dharmaraja @ Dhrowapathi

Amman Temple, which has been replied under Ex.A5.

The question is whether the temple is Arulmighu Dharmaraja Temple or Arulmighu Dharmaraja @ Dhrowapathi Amman Temple.

Ex.A1 is the Proceedings issued by the Joint Commissioner of HR & CE, Thanjavur, dated 08.04.1997. Even in Ex.A1, the name of the

temple was referred as Arulmighu Dharmaraja @ Dhrowapathi Amman Temple only. Ex.A1 was issued long time prior to the dispute in the year

1997. Learned Counsel for the appellant relied on Page-4 of Ex.A1 and submitted that the Proceedings was addressed to the trustee,

Dhrowapathi Amman Temple, Ayyampettai and not Arulmighu Dharmaraja @ Dhrowapathi Amman Temple. It was stated by P.W.1 that both

Arulmighu Dharmaraja Temple and Dhrowapathi Amman Temple are one and the same and Dharmaraja is the deity of the temple in

Moolasthanam and the Goddess is known as Dhrowapathi Amman. Usually temples are called either by the name of the God or Goddess, but it

will not change the nature of the temple. Even in Madurai, the temple is called as Arulmighu Meenakshi Amman Temple in which Sundareswarar is

the deity. Merely calling the temple as Meenakshi Amman Temple would not mean that there is no deity by name Sundareswarar. In the same

way, Arulmighu Dharmaraja Temple can be called as Dharmaraja Temple or Dhrowapathi Amman Temple. There is no motive for the Joint

Commissioner to give a false statement. Hence it is clear that the temple is called Arulmighu Dharmaraja @ Dhrowapathi Amman Temple. Merely

because the copy of the Proceedings was issued by the Joint Commissioner to the trustee''s address mentioning Arulmighu Dhrowapathi Amman

Temple, the nature of the temple cannot be altered. It is true that an earlier suit was filed under the name Arulmighu Dhrowapathi Amman Temple

and the same was dismissed. But that will not be a bar to say that the name of the temple is Arulmighu Dharmaraja @ Dhrowapathi Amman

Temple. Hence it is established that the temple is called Arulmighu Dharmaraja @ Dhrowapathi Amman Temple.

Learned Counsel for the appellant claimed that the erstwhile trustee mortgaged the suit property in favour of him under Ex.B1. Except Ex.B1,

there is no evidence to show that this suit property was mortgaged by the erstwhile trustee in favour of the vendor of the defendant. The trustee

cannot mortgage the property of the temple of his own. Even D.W.1 admitted that the property belongs to Arulmighu Dharmaraja Temple and his

father was a tenant. In the chief examination, he stated that the property belongs to Dharmaraja Temple and in the cross examination he denied the

case of the plaintiff. Ex.A3 is the letter sent by the appellant to the Executive Officer of the plaintiff enclosing a Demand Draft for Rs. 550/-

towards rent. So, he admitted the tenancy. Having admitted the tenancy, it is not for him now to state that the plaintiff is not a landlord. Further,

Ex.B5 and B6 would show that the appellant paid rent to the temple. Ex.B3 is the letter sent by Goodyear India Limited to M/s. Bawa Cycle

Mart. This will not be helpful to the appellant to improve his case. Further Ex.B2-Notice for Property Tax and Ex.B4-Demand Notice for House

Tax, were issued for Salai Street and this property is not situated in Salai Street. So, it will not strengthen the case of the appellant. Therefore, the

appellant is the tenant of the suit property and he is liable to pay the rent. The claim of the defendant that Dharmaraja temple and Dhrowapathi

Amman Temple are different, falls to the ground.

The Counsel for the appellant questioned the status of the Executive Officer to file the suit. For this, he relied on the decisions of this Court in

the case of Sri Arthanareeswarar of Tiruchengode Vs. T.M. Muthuswamy Padayachi, M. Palanivelu, Smt. Dhanalakshmi Ammal, T.M. Thambiran

Padayachi, T. Kuberan and Varadayammal, and in the case of Dayalu Naidu (Deceased) and V. Manohar Vs. A/m Arunachaleswarar Thirukoil,

and argued that the Executive Officer must be empowered by the Commissioner to institute a suit and in the absence of authorisation, the Executive

Officer cannot institute the suit. No doubt, the principles laid down in the above judgments of this Court are not in dispute. But, in the present case,

it is clear from Ex.A1 that the Joint Commissioner has removed the erstwhile trustee and the Executive Officer was appointed as Thakkar, the fit

person. For this, the learned Counsel for the appellant relied on Section 101 of the Tamil Nadu Hindu Religious & Charitable Endowments Act,

1959 which deals with putting Trustee or Executive Officer in possession. Absolutely there is no evidence on record to show that the erstwhile

trustee resisted the order of the Joint Commissioner and the temple property was not handed over to the Executive Officer. Furthermore, under

Ex.A3, the appellant sent a letter to the Executive Officer enclosing a Demand Draft for Rs. 550/- towards rent. Further, Ex.B5 and B6 would

show that the appellant paid rent to the temple. This all would go to show that the Executive Officer is empowered to look after the temple.

Now we have to find out whether the Executive Officer is entitled to file a suit. In Sri Arthanareeswarar of Tiruchengode Vs. T.M.

Muthuswamy Padayachi, M. Palanivelu, Smt. Dhanalakshmi Ammal, T.M. Thambiran Padayachi, T. Kuberan and Varadayammal, , this Court, in

Paragraph-50 held that the Board of Trustees or the Fit Person are the competent people to initiate legal proceedings. As per the decision of the

above Division Bench Judgment of this Court, the Executive Officer of this temple is entitled to initiate legal proceedings. In the present case, the

Executive Officer was appointed as Thakkar under Ex.A1 by the Joint Commissioner. So, in the light of the above Division Bench judgment of this

Court, the Executive Officer of the temple is entitled to file a suit. Hence the statement of the appellant that the Executive Officer is not entitled to

file the suit is not correct. The plaintiff is entitled to file the suit. The suit is in order. The defendant has not paid the rent and hence he must

surrender possession.

In view of the reasons stated above, the respondent/plaintiff has proved the case. Therefore, the case of the appellant is bound to fail.

Accordingly, no substantial questions of law arise for consideration of this Court and hence the judgment of the Appellate Court is confirmed and

the Second Appeal is dismissed. Consequently, M.P.(MD) No. 1 of 2008 is closed. No costs.