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K.A. Srinivasa Ayyangar Vs. S. Ramanujachariar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1941)1MLJ322
AppellantK.A. Srinivasa Ayyangar
RespondentS. Ramanujachariar and ors.
Cases ReferredRamaswami Aiyangar v. Adivarahachari
Excerpt:
- - it has been suggested that the exercise of the right for a period of six years would give them a prescriptive right, but even if this argument were well founded--it is not necessary to decide the question--the vadagalais would still not have acquired a prescriptive right......of the time. there was no festival in the following year, but in 1929-30 the festival was again held and the vadagalais appear to have had complete control. on the 3rd january, 1930, that is, while the 1929-30 festival was being held, the appellant, who is a thengalai, filed the present suit in the court of the district munsif of nannilam for a declaration that an order under section 144 of the code of criminal procedure, which the vadagalais had obtained that day from the sub-magistrate of kodavasal, was illegal and that the vadagalais were not entitled to exercise any rights in connection with the temple to the exclusion of the thengalais. the defendants pleaded limitation and res judicata, relying for the second plea on the decree passed in os. no. 506. the district munsif held.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. This appeal arises out of another dispute between the Thengalais and Vadagalais. In the village of Thirukkannaraangai in the Tanjore District is a Thengalai temple known as the Sri Bakthavathsala Perurmal Temple. The dispute is with reference to the twenty days' festival, which commences in the month of December and ends in January and is known as Pagal Pathu and Ra Pathu. It is common ground that up to 1909 the right to conduct the festival, including the right to recite the Vedam, Mantrapushpam and Prabandam, was possessed by the Thengalais. In 1900 a number of Vadagalais filed a suit (O.S. No. 506 of 1900) in the Court of the District Munsif of Tiruvarur for a declaration that a certain shrine in the temple had been dedicated to the spiritual leader of the Vadagalais and they obtained a decree, which was confirmed by this Court on the 25th November, 1909. The Vadagalais maintain that the decree finally decided that the right to conduct the festival is in them, but this the Thengalais strenuously deny. The effect of the decree is in dispute in the present suit, but for the purposes of deciding this Letters Patent appeal it is not necessary to consider this matter as the appeal only relates to a question of limitation. If the appellant succeeds in establishing his contention, that the suit is not time-barred the case will have to be remanded to King, J., from whose judgment the appeal has been preferred, for decision on the question whether the decree in O.S. No. 506 of 1900 operates as res judicata. On the passing of this Court's decree on the 17th November, 1909 the Vadagalais asserted that they had been given right to conduct the festival and on 19th January, 1911, they obtained from a Magistrate an order under Section 144 of the Code of Criminal Procedure preventing the Thengalais from interfering with them in the conduct of the festival which was then being held, arid they obtained a similar order on the 19th December, 1914. There were other orders of a similar nature between these two dates, but it is not necessary to specify them.

2. After 1914 the festival was not held again until the year 1927. The trustee refused to allow it to be held. It has been suggested that the reason was that there were no funds available for the purpose, but I do not think that it is going too far to assign the real reason to a desire on the part of the trustee to avoid clashes between these antagonistic sects. The record does not show whether the festival which commenced in December, 1927, was conducted exclusively by the Vadagalais, but there is some indication that the Thengalais did participate for part of the time. There was no festival in the following year, but in 1929-30 the festival was again held and the Vadagalais appear to have had complete control. On the 3rd January, 1930, that is, while the 1929-30 festival was being held, the appellant, who is a Thengalai, filed the present suit in the Court of the District Munsif of Nannilam for a declaration that an order under Section 144 of the Code of Criminal Procedure, which the Vadagalais had obtained that day from the Sub-Magistrate of Kodavasal, was illegal and that the Vadagalais were not entitled to exercise any rights in connection with the temple to the exclusion of the Thengalais. The defendants pleaded limitation and res judicata, relying for the second plea on the decree passed in OS. No. 506. The District Munsif held that the suit was not barred and granted the declaration asked for by the appellant. On appeal the District judge of East Tanjore held that the suit was not barred so far as it related to the first ten days of the festival, but that it was barred by the doctrine of res judicata so far as it concerned the second ten days. Both sides appealed and their appeals were heard by King, J., who held that Article 120 of the Limitation Act applied and that the suit was barred in its entirety by-reason of the fact that it had not been instituted within six years of the 19th December, 1914, the date of the order passed by the Magistrate under Section 144 of the Criminal Procedure Code in that year. In these circumstances the learned Judge did not deal with the question whether the doctrine of res judicata had application.

3. The learned Judge considered that although the actual period of efficacy of the order of the 19th December, 1914 was only 19 days it had resulted in the interference with the rights of the Thengalais for at least thirteen years and that the case fell within the decision of this Court in Ponnu Nadar v. Kumaru Reddiar : (1935)69MLJ739 . I find myself unable to concur in either of the reasons given by the learned Judge for holding that the suit was barred by the law of limitation. The order of the 19th December, 1914 had not interfered with the rights of the Thengalais for thirteen years. An order passed under Section 144 of. the Code of Criminal Procedure can, at the most, be effective for two months, and in this particular case it was effective for only 19 days. The trustee was the person responsible for the cancellation of the festival in the intervening years from 1914 to 1924 and neither party was able to set up a claim against the other during this period. The facts in Ponnu Nadar v. Kumaru Reddiar : (1935)69MLJ739 , are altogether different from the facts in the present case. There certain Nadars sued to establish a right which they and their castemen claimed to pass in procession over certain public streets in the village in which they lived. Their right was denied by other villagers. In 1900 an order was passed by a Magistrate under Section 147 of the Code of Criminal Procedure directing that no organised procession of Shanars or Christians should pass along the route until a Civil Court had declared that there was a right to do so. The suit out of which ' the appeal arose was not filed until 1918. It was held that Art., 120 of the Limitation Act applied and that as the suit was not filed within six years of the order of 1900 it was out of time. On appeal it was contended that no rule of limitation would apply to such a case and that the right to use public streets, including the right to go in procession, was a natural right inherent in every member of the public, and could not be prescribed against or lost as other rights might be prescribed against or lost. Notwithstanding this contention it was held that the suit was governed by Art., 120. This decision may some day have to be reconsidered, but reconsideration is not called for now, because there is an important point of difference between that case and the present one. The order in that suit was of a permanent nature, being under Section 147 of the Code of Criminal Procedure while the order in the present suit was only of a temporary nature being under Section 144 and Ponnu Nadar v. Kumaru Reddiar : (1935)69MLJ739 , is distinguishable on this ground.

4. It is manifest that the Vadagalais have not obtained a prescriptive right to conduct the festival. It has been suggested that the exercise of the right for a period of six years would give them a prescriptive right, but even if this argument were well founded--it is not necessary to decide the question--the Vadagalais would still not have acquired a prescriptive right. They conducted the festival in 1910, 1911, 1912, 1913 and 1914, but then there was an interruption until 1927 and this suit was filed in 1930. Therefore the Vadagalais have not conducted the festival for even six years in succession.

5. I have already mentioned that it is common ground that the Thengalais possessed the right to conduct the festival up to 1909 and their right to conduct it must still remain unless they have given it up, which is not the case, or they have lost it by reason of prescription, which is also not the case. Now a person who possesses a right such as we have here does not lose it because he does not institute a suit in respect of the first infringement of the right. If it is a recurring infringement he can take action whenever he desires so long as he remains the holder of the right. I consider that the decision of the Full Bench in Ramaswami Aiyangar v. Adivarahachari : AIR1941Mad81 , has application here. The question in that case was whether a lawful holder of an office who had not performed the duties of the office for forty years was precluded from filing a suit to enforce his rights because his status had been challenged. The plaintiff was the mantrapushpakar of a temple and the archakas of the temple were antagonistic to him. They had not, however, dispossessed him of the office, although they had made the position such that he was not willing to perform his duties. The Court held that he could abide his time for taking action. The interference which the archakas were guilty of had not affected his position as the lawful holder of the office. The archakas had not displaced him. The interference by the Vadagalais here with the right of the Thengalais to hold the festival has not been sufficiently long to confer title on the Vadagalais and this being the case the appellant was entitled to institute a suit when the Magistrate passed the order on the 1st January, 1930.

6. The result is that the appeal will be allowed and the case remitted to King, J., to decide the question of res judicata and any other question which may arise out of the appeal. The appellant is entitled to his costs in this Court. The costs of the hearing before King, J., will abide his final decision.

7. These unedifying disputes between the Thengalais and Vadagalais occupy much judicial time to the detriment of more deserving litigants. Most of the disputes relate to ritual and are merely sentimental in character. So much time is taken up in deciding disputes between these two sects to the prejudice of cases which possess merit that I consider that the Legislative authority might take into consideration the question whether disputes with regard to temple ritual could be left to the decision of the Hindu Religious Endowments Board without the right of recourse to the Courts.

Happell, J.

8. I agree with my Lord the Chief Justice.


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