(1) This second appeal has been preferred by the second defendant in a suit for recovery of a sum of Rs. 980 against the defendants, by the first respondent as the general trustee of a temple. The basis of the suit it a joint memo which the second defendant and the first defendant by his mother as guardian, the defendants acting through their counsel filed, the other party to the memorandum being the general trustee of the temple the memo being filed on an application under S. 87 of the Hindu Religious and Charitable Endowments Act 1951. Under the compromise memorandum, the defendants had covenanted to put 70 cents of the Nandavanam poromboke land, which they were alleged to have unlawfully converted into wet land, to the best use and pay whatever income was realised therefrom to the general trustee of the temple with the sanction of the Deputy Commissioner for Hindu Religious and Charitable Endowments. The allegation in the plain is that the covenanted in spite of sanction having been obtained.
The suit was originally filed in the Sub-Court, Tirunelveli, as a small cause suit and later by an administrative order transferred to the District Munsif Court, Tirunelveli where it was tried as an original suit. The trial Court granted a decree against both the defendants, the principal contention of the first defendant who was a minor at the relevant time being that he was not bound by the compromise. Various defences had been raised on behalf of the second defendant questioning the validity of the compromise, the authority of his counsel to enter into compromise and the character and nature of the memorandum of compromise. It was impugned as invalid and beyond the powers of the trustees. He claimed to be the special trustee and it is contended that the compromise could not be valid in the circumstances and on its terms. The Courts below have not gone into the question of title set up by the parties to the Nandavanam poromboke land. The trial Court, as stated already, decreed the suit against both the defendants but limited the period for which the profits could be claimed.
There was an appeal and the lower appellate Court has allowed the appeal so far as the first defendants is concerned. He has been completely exonerated from liability. The appeal so far as the second defendant was concerned was dismissed. A memorandum of cross objections was filed by the plaintiff in the lower appellate Court in respect of the period for which profits had been disallowed and this was allowed by the lower appellate Court with costs.
(2) In this second appeal before me, learned counsel appearing for the second defendant appellant has raised various contentions some of which do not appear to have been raised in the Courts below. The jurisdiction of the court to entertain the suit is questioned. It is contended that the compromise as such is not enforceable. It is argued that the plaintiff will not be entitled to claim the entire income as such. It is pointed out that the lower appellate court erred in its view that the plaintiff could get a decree for the entire period and not for a period of three years prior to the suit as decreed by the trial court. So far as this point is concerned, there can be no doubt about its maintainability because the cause of action is the failure to pay and the fact that the sanction of the Deputy Commissioner may be necessary will not extend the period of limitation as viewed by the lower court.
(3) A preliminary objection was taken by the learned counsel for the plaintiff Mr. D. Ramaswami Aiyangar. It is pointed out that the suit is of a small cause nature and the second appeal is not competent. Mr. Gopalaswami Aiyangar contends that in the circumstances of the case, and in view of the questions that properly had to be decided in the suit the suit is not of a small cause nature. But the character of the suit has to be determined only by reference to the allegations in the plaint and the contentions put forward by the defendant cannot after the nature of the plaint. Sec 102 C.P.C. prohibits a second appeal in any suit of the nature cognisable by courts of small causes. On the allegations in the plaint, the claim in my view, is based on the failure of the defendants to pay according to the terms of the contract. The claim is not for rent, nor one for specific performance as suggested by the counsel for the appellant. The suit is of a small cause nature and so the second appeal is not tenable.
(4) Mr. Gopalaswami Aiyangar for the appellant makes an oral application that the second appeal may be converted into a civil revision petition under S. 115 C.P.C. if the second appeal is not competent. That may be done at the discretion of the court provided questions of jurisdiction are raised in the revision. No doubt learned counsel refers to certain errors having jurisdictional favour. But even so interference under S. 115 C.P.C. will not be in the interests of justice. The general trustee initiated proceedings under S. 87 of the Hindu Religious and Charitable Endowments Act for the issue of a certificate to get possession from the defendants as special trustee. These proceedings were dropped on the joint memo filed on behalf of the defendant. It may be that the second defendant himself might not have signed it. It may be that it is open to challenge on the various grounds raised by learned counsel for the appellant. I do not want to go into the merits of these contentions at the present juncture. One of the points raised by learned counsel for the appellant is that the memo does not even purport to be for a limited period; its terms are vague and therefore cannot be enforceable.
But the fact remains that the proceedings originally initiated under Sec. 87 were dropped in view of his consent Memo, and the present appellant had no need to contest the same then. The jurisdiction to interfere being discretionary and as in my view the plaintiff devastanam would be out of time to take effective steps to recover any income from the defendants for the period in question in the event of the appellant succeeding on some technical plea interfere is not called for under S. 115 C.P.C. One of the contentions of the appellant is that the general trustee had no power to condone the appellant's acts and claim and income as per the joint memo; in effect the appellant is pleading his own alleged illegal acts, in defence. I am therefore not permitting the appellant to convert the proceedings into a revision under S. 115 C.P.C. The second appeal is therefore dismissed. It is made clear that none of the contentions raised on behalf of the second defendant is decided in these proceedings. Any opinion that might have been expressed in these proceedings will not be binding between the parties in future proceedings.
(5) x x x x x x x
(6) Appeal dismissed.
(7) * Only portions approved for reporting are reported here.