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Judgment
S. Rajeswaran, J.—The second appeal has been filed by the plaintiffs 1 and 2 and 4 to 6 challenging the judgment and decree dated 29-11-1995 made in A.S. No. 41 of 1994 on the file of the learned Subordinate Judge, Tenkasi confirming the judgment and decree dated 24-02-1994 made in O.S. No. 313 of 1988 by the District Munsif Court, Tenkasi.
For the sake of convenience, the parties are referred to herein as per their rankings in the suit.
The case of the plaintiff in O.S. No. 313 of 1988 is as follows:
The suit in O.S. No. 313 of 1988 was filed by the plaintiffs /appellants herein along with others to conduct the suit for themselves and for the Hindu Viswakarma Community people living in Kulathur Ayyanar Street and Annaikarai Street and Ponniparai Street, in a representative capacity for the relief of declaration declaring that the suit temple belonged to their community and for permanent injunction restraining the defendants from appointing any trustee in the temple.
The case of the plaintiffs is that Alulmigu Sastha Veinayakar Temple at Tenkasi belongs only to Viswakarma community residing at Kulathur Iyyanar Street, Annaikarai Street and Ponniparai Street, Tenkasi and it is a community temple. This temple has been constructed about 200 years ago by the ancestors of the Viswakarma community and the temple belongs only to the plaintiffs and in that temple besides Sastha Kulathur Ayyannar there are Vinayaka idol, Nataraja idol and Kali idol. From the inscription of the temple mandapam it is seen that this temple belongs only to the plaintiffs community people. They are entitled to have a right in the temple and nobody else has given any donations. The plaintiffs ancestors have purchased properties in the name of this temple and the temple is managed and administered from the income derived from the said properties. The temple festivals are being conducted and the poojaries have been appointed and daily poojas, one in the morning and one in the evening, are being conducted regularly and the said poojaries are given five kalam paddy, every year, special poojas are also conducted during festival days. The entire expenditure for this has been borne by the Viswakarma Community and the temple is administered by the elected representatives of the Viswakarma community people residing in the aforesaid three streets. Such elected representatives shall hold office for one year and the daily administration of the temple is being looked after by the elected representatives and the trustees of the temple. The lock and key of the temple are with the temple trustees. The temple accounts are being supervised by the trustees and the trustees are answerable to the General Body in respect of the administration of the temple. Excepting the Vishwakarma community people, nobody else including the Government has any right to administer the temple. In June 1987 when the plaintiffs came to know that the third dependent took steps to appoint a trustee in the temple, the plaintiffs objected to it as there is no power for such appointment to the third defendant and that would also be against the provisions of the Hindu Religious Endowment Act, 1959. It would also take away the rights conferred upon them by the Hindu Religious & Charitable Endowment Act. It would also run contrary to the provisions of the Hindu Religious & Charitable Endowment Act, 1959. Further in this connection, the plaintiffs issued a notice u/s 80 CPC on 02-07-1987 to the defendants and the defendants received the same on 06-07-1987 and replied to it on 15-07-1987 denying all the contentions put forth by the plaintiffs. Since, the denial of the defendants is not correct, the plaintiffs filed the above suit for the above said prayer in the representative capacity.
A written statement was filed by the defendants denying the averments made in the plaint. They denied that the temple was established by the ancestors of the Viswakarma community and they also denied that the temple belongs to the said community. According to them, it is not their community temple. The said temple is situated in Survey No. 700/8A/1 Natham Poromboke, which belongs to public. The said temple has got all the features of a Hindu Public Temple as set out in Section 6(2) of the Hindu Religious & Charitable Endowment Act. Hence, the suit temple is a public temple belonging to the public. The patta to the properties of the suit temple stands in the name of Sastha Kulathur Ayyanar of Kulathur Ayyanar Koil Street and not in the name of any particular community. The public has a right of worship in the said temple. Further in the suit temple one Subramania Pattar belonging to some other community is performing daily poojas. M/s. G. Subramania Asari, P. Kamatchi Asari and S. Sudalaimuthu Asari belonging to the plaintiffs community have admitted before the Deputy Commissioner, H.R & C.E, Tirunelveli in O.A.No.5 of 1985 that in the suit temple on the day of Sasthapree all Hindu public are fed freely. Therefore, the suit temple belongs to the public and all the Hindu people are worshipping there. The keys of the temple are with the poojari, who belongs to a different community. The expenditure of the daily poojas of the suit temple are met from the income received from the lands of the temple. In addition to this, donations are also collected from the Hindu Public for celebrating festivals. Therefore, the suit temple is a Hindu public temple. Hence, the H.R. & C.E Department is entitled to issue notice with regard to the administration of the temple as per the provisions of the Act and only on that basis notice was issued by the third defendant. Notice was sent as early as on 17-11-1984 about the administration of the temple. Further, a petition filed u/s 63 of HR & CE Department by M/s. G. Subramania Asari, P. Kamatchi Asari and S. Sudalaimuthu Asari belonging to the plaintiff community to appoint their community persons as hereditary trustees, had been dismissed by the Deputy Commissioner, Hindu Religious and Charitable Endowment Department, Tirunelveli, after enquiry. As against that, no appeal was filed before the Commissioner, Hindu Religious and Charitable Endowment Department. Therefore, without doing that, the same community people have filed this suit which is not maintainable as the same is hit by res judicata. As per Article 26 of the Constitution of India, every religious denomination or any Section thereof shall have the right to establish and to maintain institutions for religious and charitable purposes. However, it cannot be said that the particular denomination could deal with the said institution and its properties without the intervention of the HR & CE at all times. For whatever purpose a denomination institution has been started, when there is a right of worship to the public in the said institution, it would come under the purview of the HR & CE Act. Therefore, the power cannot be said to be contrary to the provisions of Article 26 of the Constitution of India and it is only to regulate such institutions provisions are there under the Article 26 (C&D) of the Constitution. Therefore, the suit temple is public temple and the HR & CE Department is entitled to frame a scheme and handover the temple to proper persons. Hence, the suit is not maintainable as per Section 108 of the HR& CE Act and thus the defendants prayed for dismissal of the suit.
On the basis of the pleadings and evidence, the trial Court framed the following issues:
1) Whether the suit temple is a public temple belonging to all the Hindus?
2) Whether the suit is not hit by res judicata?
3) Whether the suit is maintainable as per Section 108 of the Hindu Religious & Charitable Endowment Act?
4) Whether the plaintiff is entitled to the reliefs sought for in the plaint?
5) To what other reliefs to the plaintiff is entitled?
Before the trial Court, the sixth plaintiff was examined as PW.1 and the 4th plaintiff was examined as PW.2 along with them, one Subbiah and Subramania pattar were also examined as PW.3 and PW.4. Documents were marked under Exs.A1 to A9 on the side of the plaintiffs. On the side of the defendants one Shanmugaiah was examined as DW.1 and Exs.B1 to B5 were marked.
The trial Court on the basis of the above pleadings and evidence found that the plaintiffs have not established their case that the temple belongs to their community and held that the suit temple cannot be considered as a Religious denomination one. The trial Court while arriving at the said conclusion also referred to the judgments reported in 1988 (2) LW Volume 102 page 487.
Applying the said three principles enumerated therein to the case on hand, the trial court after analysing the oral and documentary evidence, held that the suit temple cannot be considered as a religious denomination temple and in the result the trial Court dismissed the suit.
As against the said judgment and decree, the plaintiffs preferred an appeal in A.S. No. 41 of 1994 before the sub-Court, Tenkasi. The first appellate Court also on re-evaluating and re-appreciating the evidence held that the contention of the plaintiffs that the suit temple was built by the plaintiff community was not established by any acceptable evidence. It is further held that though there are some evidence to show that the plaintiffs are administering the temple, there is absolutely no evidence let in to establish the suit temple was established by the plaintiffs community. Thus the first appellate Court concurred with the findings of the trial Court and dismissed the appeal. As against that concurrent findings, the above second appeal has been filed by the plaintiffs. On 29-08-1996 the Second Appeal was admitted by this Court on the following substantial questions of Law and ordered notice:
1) Whether the finding of the Courts below that the suit temple is not a denominational one over-looking the evidence let in on the side of the plaintiffs is legally sustainable, particularly, when there is no evidence contra and the plaintiffs and their ancestors alone were exclusively exercising their right of management and adminstration of the suit temple?
Whether the dismissal of the suit without giving atleast a lesser relief of declaration of the plaintiffs exclusive right to the trustees of the suit temple on the finding that they alone were managing the affairs of the temple throughout is legally sustainable?
The respondents entered appearance through counsel. I have heard the learned Counsel for the appellants and the learned Additional Government Pleader for the respondents. I have also gone through the documents filed along with the second appeal and also the judgments of both the Courts below.
It is a case were the plaintiffs claimed exclusive right over the temple as the same belongs to their community and contended that it was a religious denomination temple. Though the plaintiffs contended that the temple was established by the ancestors of Acharias of Kulathur Ayyarnarkoil, Tenkasi, they could not establish the same by letting in legally acceptable evidence. Though the trial Court dismissed the suit without referring to Exs. A8 and A9, the first appellate Court after going through Exs.A8 and A9 observed that the plaintiffs proved that the suit temple is being administered by their community temple, but failed to prove that it was established by their community people. Therefore, both the courts below have erroneously held that there was no evidence with regard to the establishment of the suit temple by the plaintiff''s ancestors. Infact, Exs.A1 and A2 are only the book which will prove that taxs are being levied by the plaintiff for community people for the temple festival. Exs.A6 and A7 are the notebooks showing the division of tax. Exs.A8 and A9 would only show that in the year 1971 and 1973, the plaintiffs community people purchased properties for the suit temple. Excepting these Exhibits i.e. A1, A2 and A6 to A9, no other evidence was let in to prove that the suit temple was established by their ancestors. In such circumstances, this Court exercising its power u/s 100 CPC cannot interfere with the factual findings of both the courts below in this regard.
That apart the plaintiffs could not prove that they are the collection of individuals who have system of beliefs and doctrines which they regard as conducive to the spiritual well being that is a common faith. They also do not have a common organisation and a designation by a distinctive name. They only say that they are viswakarma living in three streets of Tenkasi but they have not shown how they are different from other Viswakarmar living elsewhere. Similarly, it was also not established that they follow certain rituals and principles which are different from other Hindus. In such circumstances, I am of the considered view that the plaintiffs failed to establish the fact that the suit temple is a denomination temple as contended by them. Thus, I am answering the first substantial question of law against the Appellants and in favour of the HR & CE authorities and the Government.
In so far as the second substantial question of law is concerned, no doubt it is the fact that the first appellate court clearly held in favour of the plaintiffs that the suit temple has been maintained and administered by the plaintiffs ancestors. No appeal has been filed either, by the Government or by the HR & CE department against this finding. In such circumstances, it is open to the plaintiffs to approach the authorities under the Tamil Nadu Act 22 of 1959 to appoint trustees from their community and if such application is made on behalf of the plaintiffs community, the Competent authority under the Act has to pass appropriate orders on merits and in accordance with law.
In the result, the Second Appeal is DISMISSED with the above observations. No costs.