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In Re: Syed Mahamad Gouse and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported in(1925)48MLJ571
AppellantIn Re: Syed Mahamad Gouse and ors.
Cases ReferredRathnasabapathi Pillai v. Ramaswami Pillai
Excerpt:
- - the plaintiff in that case having, for reasons best known to himself, combined two actions in one, namely, one action against the temple committee for the restoration of his trustee's office and for damages, and a second action for the recovery of the trust properties against persons who had -wrongfully dispossessed him of such property, was hound to ask for the relief of possession of the temple properties to which he asserted a present right of possession......proper trustee. it was held that the plaintiffs were not bound to sue for the possession of the temple properties and their omission to sue for such possession did not offend against the proviso to section 42 of the specific relief act. the learned judges had not to consider the question as to what is the court-fee payable if the plaintiffs had, as a matter of fact, asked for possession and nowhere do they say that in such a case ad valorem court-fee need not be paid. even as regards the necessity of asking for possession where the plaintiff alleges that some others had illegally taken possession of the temple lands, the learned officiating chief justice states thus when distinguishing the case in rathnasabapathi pillai v. ramaswami pillai ilr (1901) m 452 : 20 mlj 301 : 'the.....
Judgment:

Madhavan Nair, J.

1. These stamp references were posted to be spoken to at the instance of Mr. Govindaraghava Aiyar, but after hearing the arguments of the learned vakils on both sides, I do not see any reason to modify or alter the order which I have already made.

2. The only point now urged by Mr. Govindaraghava Aiyar is that the decision of this Court reported in Swaminatha Aiyar v. Ramier : AIR1925Mad421 is against the view which I have taken in my prior order and that I should, therefore, reconsider my order in the light of the said decision. I will assume that if the decision in Swaminatha Aiyar v. Ramier : AIR1925Mad421 has really taken a contrary view, it is open to me to reconsider my order. In that case the plaintiffs sued for a declaration that they and the 1st defendant were the lawfully appointed trustees of a certain temple; and they prayed for a direction that defendants 2 and 3 should be made to restore the office of trustee to them and for an injunction restraining them from interfering with the exercise by the plaintiffs and the 1st defendant of their duties as trustees. The tenants who were in possession of the properties were willing to pay the rents to whomsoever was the proper trustee. It was held that the plaintiffs were not bound to sue for the possession of the temple properties and their omission to sue for such possession did not offend against the proviso to Section 42 of the Specific Relief Act. The learned Judges had not to consider the question as to what is the Court-fee payable if the plaintiffs had, as a matter of fact, asked for possession and nowhere do they say that in such a case ad valorem Court-fee need not be paid. Even as regards the necessity of asking for possession where the plaintiff alleges that some others had illegally taken possession of the temple lands, the learned Officiating Chief Justice states thus when distinguishing the case in Rathnasabapathi Pillai v. Ramaswami Pillai ILR (1901) M 452 : 20 MLJ 301 : 'The maintainability of the suit must depend upon the allegations in the plaint... In this plaint he [the plaintiff in the case in Rathnasabapathi Pillai v. Ramaswami Pillai ILR (1901) M 452 : 20 MLJ 301 mentioned that the defendants 8 and 9 had illegally taken possession of the temple lands and leased out the fishery in the tank and collected rent. The plaintiff in that case having, for reasons best known to himself, combined two actions in one, namely, one action against the Temple Committee for the restoration of his trustee's office and for damages, and a second action for the recovery of the trust properties against persons who had -wrongfully dispossessed him of such property, was hound to ask for the relief of possession of the temple properties to which he asserted a present right of possession. On the allegations in the plaint in that suit it may have been right to require the plaintiff to add a prayer for possession of the lands, and if he refused to do so, his suit might have been dismissed. But he was not bound to sue for possession of the lands before he was restored to office. If he had chosen to strike out from his plaint his statement as to the part played by defendants 8 and 9, he might have waited till he was restored to his office of trustee, and he might then have brought a separate suit on behalf of the trust to recover the trust properties which had been wrongfully alienated. The plaintiff in the present case alleges in his; plaint that he was dispossessed by the 1st defendant and asks for possession from him, and I do not think that the remand by the High Court and the subsequent re-arrangement of the parties can in any way alter the nature of the case. It is not necessary for me to decide whether even in this case the plaintiff is bound to ask for possession. But as possession has been asked for and as the decree also directs that the durga should be taken possession of, I think that Court-fee should be paid under Article 7, Clause (5) of the Court Fees Act. Time for payment of the Court-fee is extended by six weeks from to-day in all the references.


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