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Judgment
Ramanujam, J.—The defendants in O.S. No. 327 of 1974 on the file of the District Munsif, Devakottai who have been unsucessful in both the courts below are the appellants. The respondents herein filed a representative suit for a permanent injunction restraining the appellants herein from interfering with the conduct of the festival in Thoothu Ayyannar Singamuga Karuppar and Kalin uthu temple at Keerani village. The plaintiffs'' case is that the villagers of Keerani village have been performing the utsavams like Mahasivarathiri, Deepavali and Kuthirai Yeduppu in the said temple by collecting subscriptions from the villagers, that the temple has been built by the Keerani Villagers, that the festival consists of performance of a drama and of sacrificing ram and cock, that recently the defendants who are the neighbouring villagers and who have no manner of right to interfere with the performance of the festival or the giving of honours to the trustees have joined together and have been creating trouble from 12th July, 1974 and obstructing the conduct of the festival and the proper upkeep of the temple and conduct of utsavam, drama and sacrifice of ram and cock and hence the plaintiffs were constructed to file the suit for an injunction as set out above.
The defendants resisted the suit contending that the suit in a representative capacity is not maintainable, that one of the trustees of the temple has not joined as the plaintiff, that the right claimed by the plaintiffs is not sustainable, that there are two sets of worshippers in relation to the temple, one set being called Melavattam and the other set being called Keelavattam, that the people living in the west of Keerani village are called Melavattam worshippers and the people living in the village east of the temple were called Keelavattam worshippers, that the plaintiffs do not have the exclusive right to conduct the festival and the utsavams in the temple, that the temple was built and Kumbhabhishakam was preformed from contribution from both Melavattam and Keelavattam people and not by Keerani people alone, that the defendants belong to Keelavattam, that they did not interfere with the daily routine pooja and the conduct of festivals, that after Melavattam people offer worship through their poojari Keelavattam people worship through their own poojari, and that therefore, the Keelavattam people also are entitled to conduct worship with their own poojari and also conduct the festival side by side with the plaintiffs. The defendants also stated that there are two poojaris in the temple, one acting at the instance of Melavattam people and the other acting at the instance of the Keelavattam people, that archanas are done by Melavattam poojari for Melavattam people and by Keelavattam poojari for Keelavattam people and that the defendants are also exercising their right to offer worship, collection of hundies and doing Kuthirai Yeduppu festival from time immemorial. Therefore the plaintiffs have no cause of action as against the defendants.
The trial court held that the suit is maintainable and that the civil court has jurisdiction to entertain the suit and the plaintiffs'' right to manage the temple and conduct the festivals not having been disputed by the defendants and the defendants not having established their right to conduct the festival alongside the plaintiff with the assistance of a separate poojari, the respondents are entitled to the issue of an injunction. In this view, the suit was decreed.
The matter was taken in appeal to the lower appellate court and the lower appellate court confirmed the decision of the trial court substantially. The lower appellate court has, however, modified the decree of the trial courts so as to protect the defendants'' right to worship the deity in the suit temple as ordinary worshippers without any let of hindrance with the plaintiffs'' celebration of festival. The second appeal is directed against the said concurrent judgments or both the courts below.
In this second appeal two contentions have been urged: (1) The suit is not maintainable in the face of S. 63 (a) and 108 of the Hindu Religious and Charitable Endowments Act, 1959 and (2) that the suit is not maintainable when admittedly one of the trustees by name Ramaswami has not been impleaded as a co-plaintiff.
I shall take up the second contention first. As regards this question, the learned counsel for the appellants would point out that the fact that one of the trustees of the temple has not joined is fatal to the maintainability of the suit as it is well established that the trustees should act as a body and not independently. However, this contention of the learned counsel appears to have no substance for the reasons that the suit has been filed not by the Board of trustees but by some of the trustees and some others as representatives or the residents of Keerani village. Such a representative suit is maintainable even if all the trustees of the temple have not joined. Though some of the plaintiffs are trustees in the temple, the suit in substance is a representative suit by the villagers of Keerani and, therefore, it is not possible to say that the non-impleading of one of the trustees is fatal to the maintainability of the suit. Hence I find that the suit is maintainable even though one of the trustees has not been impleaded as a co-plaintiff.
Coming to the first question, the contention of the learned counsel is that though the suit has been filed as one for bare injunction restraining the defendants from interfering with the plaintiffs'' right to conduct the festival in the temple, it is in effect a suit for declaration of their right to establish a custom and usage which is prevailing in the temple all these years and to establish their right to receive honours and that both the rights have to be agitated under S. 63 (e) of the Hindu Religious and Charitable Endowments Act and not in a civil court. Both the courts below have, as already stated, held that the suit is not one pertaining to the established usages, rituals and ceremonies and, therefore, S. 63 (e) and S. 108 of the said Act are not a bar to the suit. The question is whether the said view taken by the courts below is tenable.
S. 63 (e) and S. 108 are as follows:
63 (e): Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following disputes and matters;
(e): Whether any person is entitled, by custom or otherwise, to any honour, element, or perquisite in any religious institution; and what the established usage of a religious institution is in regard to any other matter.
S. 108 : No suit or other legal proceedings in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any court of law, except, under and in conformity with, the provisions of this Act.
Dealing with the scope of Ss. 63 and 108 of Act 22 of 1959 this Court, in more or less similar circumstances held in Rangayya Goundar v. Karuppa Naicker 1971 I M.L.J. 358=84 L.W. 137, that where there are rival claims by two parties to be hereditary trustees of the temple, such a dispute between the parties as to which of them is entitled to be in management and to celebrate the Annual festival will fall within the ambit of S. 63 and as such the bar under S. 108 will not apply. In that case, after referring to the decisions of Somayya, J. in Velayudha Goundan v. Ponnuswami Udayar 1945 I M.L.J. 300=58 L.W. 287, of Veeraswami, J. (as he then was) in Chinnathambi Moopan v. Mamundi Moopan 1966 I M.L.J. 361=79 L.W. 173 and of a Bench of this Court in Thirumalaiswami Naicker v. Villagers of Kadambur, Athur Taluk 81 L.W. 342, which clearly laid down that a rival claim as to which out of the two parties is entitled to be in management of the temple to conduct the festivals therein will not be a dispute falling under S. 63 of the Act, this Court held that a suit between two rival elements to the office of trusteeship was not barred by S. 108 in view of S. 63. Somayya, J. has held in Velayudha Goundar v. Ponnuswami Udayar 1945 I M.L.J. 300=58 L.W. 287, that when there is dispute between one set of villagers and another set of villagers in relation to the conduct of Utsavam in a temple the villagers who prevented the plaintiffs from peacefully carrying on the proceedings and worship of a deity in a temple does not fall within S. 73 of Madras Act II of 1937 corresponding to S. 63 of the 1959 Act and as such the suit is maintainable in a civil court for a permanent injunction restraining the defendants from interfering with the conduct of the utsavam in the temple by the plaintiff. Veeraswami, J. (as he then was) in Chinnathambi Mooppan v. Mamudi Mooppan 1966 I M.L.J. 361=79 L.W. 173 laid down that where the controversy centres round as to which of the rival claimants to the office is entitled to it, it squarely does not fall within the ambit of S. 63 (e). In Krishnaswami Raja v. Krishna Raja 70 L.W. 672, a Division Bench of this Court held that though the Deputy Commissioner acting under S. 57 (b) of the Tamil Nadu Act 19 of 1951 has jurisdiction to decide as to the status of the office of the trusteeship, namely, whether it is hereditary or not, he is not competent to go into the further question as to which of the competing claimants is a hereditary trustee or whether both are joint trustees and that is a matter not covered by the said section and it has to be decided only by a separate suit. In Thirumalaiswami Naicker v. Villagers of Kadambur, Authr Taluk 81 L.W. 342, it has been observed as follows:
Under S. 9, C.P.C., a litigant having a grievance of a civil nature has, independently of any statute, right to institute a suit in a civil court under the provisions of the C.P.C., unless cognizance of the suit is either expressly or impliedly barred. If a suit is otherwise within the jurisdiction of the Civil court the person who seeks to oust the jurisdiction of that court must affirmatively establish the law, every presumption being in favour of the jurisdiction of the court. Exclusion of the jurisdiction of a civil court in a case where a person resorts to a right and seeks remedy cannot be readily inferred.
Having regard to the principle laid down in those cases that normally the jurisdiction of the civil court will not stand excluded unless the dispute specifically comes within the provisions of S. 63 (e), the appellant cannot succeed in his submission that the suit is barred by establishing that the dispute comes within S. 63 (e). In Muthuchami Naicker v. Seniappa Gounder 85 L.W. 263, a suit by members of one community was filed in a representative capacity against the defendants belonging to another community for an injunction restraining defendants from interfering with the plaintiffs'' right to conduct and perform the annual congregational worship of the Goddess Kaliamman in the manner in which they are accustomed to do in the month of Vaikasi. The defendants resisted the suit contending, inter alia that the suit is one covered by S. 63 (e) and therefore, the suit is not maintainable. This Court, after considering the various decisions and following the decision of P.N. Ramaswami, J. in Kattayan Achary v. Ramaswami Achary 1959 1 M.L.J. 123, held that such a suit is maintainable. The observations of P.N. Ramaswami, J. which were quoted with approval by the learned Judge in that case are as follows:
A suit by one Section of a community against a rival section of that community to enforce their right to participate along with the defendants in the conduct of a ceremony of their tutelary deity from which the plaintiffs have been excluded, and to ask for accounts of a fund constituted out of collections made by all the members of the community, including the plaintiffs to find out whether the terms of the community chest are being carried out cannot be held to be a suit for ''administration or management'' which is excluded from the jurisdiction of courts of law. A dispute of this nature between rival claimants seeking to ensure that the fund earmarked for a particular purpose is being managed properly would not fall under S. 57 of the Act so as to render a suit regarding such a dispute, a suit for administration or management even in a side sense.
The learned counsel for the appellant would further contend that the suit is one for establishing a usage and custom in the conduct of the festival in the temple and, therefore, it will come within the purview of S. 63 (e) of Tamil Nadu Act 22 of 1959. However, on the facts of this case it cannot be said that the suit is one for establishing a usage and custom. On the facts of this case there does not appear to be any dispute as regards the usage and custom. It is not a case where the plaintiffs are trying to establish a particular custom and usage and the defendants are seeking to establish to the contrary. What in substance the dispute between the parties is as to who between the two rival claimants is entitled to the management and conduct of the festival. As a matter of fact, the defendants did not dispute the plaintiffs'' right to be in management of the temple and conduct the various festivals in the customary manner. What the defendants contend is that they are also entitled to conduct the same festival alongside the plaintiffs with the assistance of their poojari. When there is no controversy as to the usage and custom referred to by the plaintiffs, but the defendants merely say that they are also entitled to conduct the festival alongside the plaintiffs in the customary manner, the suit cannot be taken to involve a dispute regarding the usage and custom prevalent in the temple. The lower Appellate court correctly appreciated the nature of the suit by observing that the relief claimed is an injunction restraining the defendants from interfering with the plaintiffs'' right to conduct certain celebrations, that the defence to the suit is that the defendants are not causing obstruction to the plaintiffs'' celebrating the festival but they are having independent right to have the festival in the temple side by side along with the plaintiffs. Thus the defendants have conceded the plaintiffs'' right to conduct the festival in the established manner and they merely claim a right to conduct the festival separately on the same day in the suit temple. The plaintiffs'' right to perform the festival in the usual manner has not been disputed by the defendants and they merely claim a rival right to conduct the festival in the said temple in the same manner. It will be clearly seen that the controversy between the parties is as to whether the defendants have also the right to perform the festival in the temple along with the plaintiffs and the dispute is not with reference to any particular custom or usage prevalent in the temple. In this view of the matter, I am in entire agreement with the view taken by the courts below that the suit is not barred by the provisions of Ss. 63 (e) and 108 of the Act. Therefore, both the questions raised by the appellants having failed, the second appeal is dismissed. There will, however, be no order as to costs.