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Rathnasabapathi Pillai and ors. Vs. G. Ramasami Aiyar - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Judge
Reported in5Ind.Cas.630; (1910)20MLJ301
AppellantRathnasabapathi Pillai and ors.
RespondentG. Ramasami Aiyar
Cases ReferredIn Jagadindra Nath Roy v. Hemanta Kumari Debi
Excerpt:
specific relief act (1 of 1877), section 42 - suit by dismissed trustee of a temple--prayer for declaration of invalidity of his dismissal and for injunction--movable and immovable property attached to the office--non-maintainability of suit without a prayer for possession--possession with tenants--nature of claim for possession. - - the present case being clearly one of plaintiff having been ousted from possession, it is open to him to sue for joint possession with defendants nos. it has been well pointed out in the zemindar of vizianagaram v. it is thoroughly well established that the plaintiff cannot sue for a mere declaration when he is entitled to consequential relief......removal of the trustee was valid and that as the plaintiff was out of possession, the suit for a mere declaration and injunction was not maintainable. on appeal the district judge reversed the munsifs decree and allowed the plaintiff's claim. he held that the plaintiff's dismissal was irregular and that he was entitled to sue for the declaration and injunction. no ground was taken before him on appeal that the munsifs finding as to the plaintiff being out of possession was erroneous. he rests his judgment on the authority of the decision in kunj bihari v. keshavlal hiralal 28 b. 567, and distinguished the decision in narayana v. shankunni 15 m. 255, and the remarks of subrahmania aiyar, j., in vengan poosari v. chinnu alias patchamuttu 14 m.l.j. 290. we are unable to agree with his.....
Judgment:

1. The suit is by a dismissed trustee for a declaration of the invalidity of his dismissal and an injunction restraining the co-trustees and the temple committee from interference with his exercise of the rights of a trustee. The District Munsif dismissed the suit holding that the removal of the trustee was valid and that as the plaintiff was out of possession, the suit for a mere declaration and injunction was not maintainable. On appeal the District Judge reversed the Munsifs decree and allowed the plaintiff's claim. He held that the plaintiff's dismissal was irregular and that he was entitled to sue for the declaration and injunction. No ground was taken before him on appeal that the Munsifs finding as to the plaintiff being out of possession was erroneous. He rests his judgment on the authority of the decision in Kunj Bihari v. Keshavlal Hiralal 28 B. 567, and distinguished the decision in Narayana v. Shankunni 15 M. 255, and the remarks of Subrahmania Aiyar, J., in Vengan Poosari v. Chinnu alias Patchamuttu 14 M.L.J. 290. We are unable to agree with his view. No doubt the Bombay case referred to appears to support the District Judge, but in the face of the decisions of this Court we are unable to agree with him. The present case being clearly one of plaintiff having been ousted from possession, it is open to him to sue for joint possession with defendants Nos. 8 and 9, who are admittedly the other trustees of the temple. It is said that the lands of the temple are in the physical possession of the tenants, and that the plaintiff cannot have such possession himself. Besides the lands, there are the temple itself and movable properties belonging to the temple. And even as regards the landlord's right to receive rents, it is certainly capable of possession. It has been well pointed out in The Zemindar of Vizianagaram v. Behara Suryanarayana Patrulu 25 M. 587, that the interest of the landlord which may consist in the mere receipt of the rents is capable of delivery and possession, and Sections 264 and 319 of the Code of 1882 have been framed on that supposition. It has been held under Section 9 of the Specific Relief Act, by this Court that possession by receipt of rents may be disturbed and the person dispossessed may bring a suit for possession under that section within six months of such dispossession. See Jagannatha Charry v. Rama Rayer 28 M. 238. In Abdulkadar v. Mahomed 15 M. 15, and in Narayana v. Shankunni 15 M. 255, it appears that there were tenants in actual possession of the property. It was held by this Court, notwithstanding that circumstance, that a suit for possession should have been brought against the rival claimants to possession by receipt of rents. If the observations in Subramanyan v. Paramaswaran 11 M. 116, are at variance with the view expressed in the above cases, we cannot accept them as correct. We must, therefore, hold that property in the actual possession of the tenants is capable of possession by the landlord see also Suryanarayanamurti v. Tammanna 25 M. 504, and one person claiming to be landlord ousted by another cannot content himself with suing for a mere declaration but must sue for consequential relief in the nature of possession against his rival claimants. And if the rival claimants are entitled to joint possession with the plaintiff, the plaintiff must sue for joint possession with them. It is, however, contended on the authority of the Bombay case, first, that Section 42 of the Specific Relief Act does not require the whole consequential relief to be claimed; and that injunction is a sufficient relief consequent on the declaration, and, secondly, that the rule requiring a plaintiff to seek for possession as consequential relief where he asks for a mere declaration is not applicable to trustees of temples. As regards the first position, assuming that, Section 42 of the Specific Relief Act is to be understood as not requiring the whole consequential relief to be claimed, we think a plaintiff out of possession is not entitled to ask for an injunction merely against the person in possession. This question has been fully discussed in the judgment of Subrahmania Aiyar, J. in Venganpoosari v. Patchamuttu 14 M.L.J. 290, though his actual decision in the case was not upheld on appeal on another ground. Upon a review of the English cases the learned Judge came to the conclusion that injunction is not the appropriate relief where the plaintiff is entitled to claim possession against the defendants. Kerr on Injunctions (4th Edition) states at page 82: 'The result of the cases apart from the alteration made by the Judicature Act of 1873 was, that where the plaintiff was out of possession, the Court would refuse to interfere by granting an injunction, unless there was fraud or collusion, or unless the acts perpetrated or threatened were so injurious as to tend to the destruction of the estate.' Again at page 114 'if the trespass or damage is complete and the title is a pure legal title, the Court would not in general interfere by way of mandatory injunction, there being a full remedy at law by ejectment.' The passages above cited are supported by a number of English cases, some of which Mr. Justice Subrahmania Aiyar has referred to in his judgment in Vengan Poosari v. Patchamuttu 14 M.L.J. 290. It is true that the language of Section 25, Sub-section 8, of the Judicature Act of 1873, is wider and allows an injunction, whether the person against whom such injunction is sought is, or is not, in possession under any claim of title or otherwise. But notwithstanding the generality of the language the principle laid down by Kinderseley, Vice-Chancellor, in Lowndes v. Bettle 33 L.J. Ch. 451 : 4 N.R. 609 : 12 W.R. 399, and approved of by the Court of Appeal in Stanford v. Hurlstone L.R. 9 Ch. 116 : 30 L.T. 140 : 22 W.R. 422, has been re-affirmed, viz., that while defendant is in possession and the plaintiff seeks an injunction without possession, his claim will not be upheld. See Leeds and Liverpool Navigation Co. v. Horsfall 33 S J 83. An injunction is a discretionary relief under section 52 of the Specific Relief Act; and the considerations adverted to by Mr. Justice Subrahmania Aiyar in the case in Vengan Poosari v. Patchamuttu 14 M.L.J. 290, against the grant of such relief in this country where the plaintiff is entitled to ask for possession against the defendant, are entitled to full weight. If, therefore, the plaintiff in the present case cannot claim an injunction when he is out of possession and defendants Nos. 8 and 9 are in possession, the only other relief claimed in the plaint that remains is a mere declaration. It is thoroughly well established that the plaintiff cannot sue for a mere declaration when he is entitled to consequential relief. Speaking with all respect, it appears to us that the learned Chief Justice of Bombay has overlooked the fact that injunction is a discretionary relief and cannot be claimed by a plaintiff out of possession when he does not ask for possession against the defendant who is actually in possession.

2. Passing to the next point, viz., that the plaintiff is only a trustee of the temple, we are unable to appreciate the distinction. It. is said that the property is vested in the Idol and that an injunction restraining interference secures to the plaintiff the rights he claims in the most complete manner. In the Bombay case the plaintiff claimed the office of an Acharya, but it included the management of a temple and of inams and other properties attached to it. It was not a mere performance of certain duties which might involve no possession of properties. Under those circumstances, it is difficult to see that a mere restraint from interference is equivalent to the transfer of possession from the defendant to the plaintiff. The learned Chief Justice of Bombay asks, 'how would practical effect be given to an award of possession of an office otherwise than by preventing interference with the rights of which it is made up.' Where tangible movable and immovable property is also attached to the office, the question as regards the property is easily answered. There are provisions in the Code for giving possession of immovable property, and the possession of such property is a great deal more than the prevention of other people's interference. But even where it is a mere office of which possession is claimed, Article 124 of the Limitation Act explains the mode of possession, which certainly is more than the mere restraint of another from interference. Possession is positive, and connotes acts of dealing with the property, and sometimes beneficial enjoyment; while an injunction which restrains another from interference is negative. The fact of the Idol being the owner and the plaintiff the trustee, does not appear to us to affect the question. In Jagadindra Nath Roy v. Hemanta Kumari Debi 32 C. 129 : 7 Bom. L.R. 765 : 8 C.W.N. 809 : 1 A.L.J. 585, the Judicial Committee of the Privy Council, while recognizing that an Idol may be regarded as a juridical person capable as such of holding property, observed. 'Assuming the religious dedication to have been of the strictest character, it still remains that the possession and management of the dedicated property belongs to the shebait, and this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the shebait and not in the Idol.' It follows that the circumstance of a trustee suing is no answer to the objection that possession should have been sued for and not a mere declaration. For the foregoing reasons we hold that the present suit is not maintainable, and in reversal of the decree of the District Judge, we restore the decree of the District Munsif with costs in this and the lower appellate Court.


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