G. Ramanujam, J.
1. The above revision has been filed against the order of the lower Court dated 20th December, 1969 in O.S. No. 1022 of 1966 finding preliminary Issues 5 and 6 against the defendants and holding that the suit as framed is maintainable in the civil Court.
2. The facts giving rise to this revision may be briefly set out. The plaintiffs as the descendants and great grandsons of Karuppa Naicker and Mari Naicker filed the above suit in a representative capacity for a declaration that they are alone entitled to celebrate the annual festival in the suit temple which was to commence on 22nd December, 1966, and for an injunction restraining the defendants representing the Nattu Goundars of the village in which the temple is situate and other neighbouring villages from interfering with the plaintiffs' celebrating the festival. The said relief was claimed by the plaintiffs on the basis that the suit temple is an ancient temple, that originally their ancestors, Karuppa Naicker and Mari Naicker, were the hereditary poojaris and trustees, that after their death the trusteeship and poojariship vested always with the family of the said Karuppa Naicker and Mari Naicker, that the temple has got inam lands which are being enjoyed by the plaintiffs as the descendants of Karuppa Naicker and Mari Naicker, that the patta for those inam lands always stood in the name of the members of the plaintiffs' family, and that the title deeds for the inam lands have been issued and confirmed by the Inam Commissioner in the name of their ancestors. They also alleged that the annual festival for the above said temple was by mamool and custom celebrated in the month of Margali and would last for three months till the end of Masi, that the temple itself is, therefore, called 'Moonumasathu Mariamman temple', that when the plaintiffs were arranging to conduct the festival for the year 1966 the defendants as representatives of Nattu Goundars of the area, with their wealth and influence and with the good backing of the other villagers in the locality were denying the plaintiffs' right to conduct the festival and asserting that right in themselves. The plaintiffs had apprehended that the defendants with their status and their influence aimed to usurp their right to conduct the festival in the suit temple.
3. The plaintiffs' claim was resisted by the defendants on the ground that Karuppa Naicker and Mari Naicker, the ancestors of the plaintiffs were neither trustees nor poojaris of the suit temple, that they used to be appointed as poojaris by the Kaniyachikarars of the suit temple who were in management, that neither Karuppa Naicker nor Mari Naicker nor their descendants had any hereditary right for the poojariship or the trusteeship in the temple, that there were other poojaris for the suit temple, that the trusteeship and poojariship did not vest in the family of the said two persons, and that the inam has been confirmed in favour of the deity by the Inam Commissioner and not in favour of the said two persons as alleged. They also claimed that the deity is of the Nattu Vellala Goundars residing in certain villages nearby, that the administration of the temple and its properties had always vested from time immemorial in the Nattu Vellala Goundars of the above said villages that defendants 1 to 4 and four other persons were actually in management of the temple and its properties as representatives of the Nattu Vellala Goundars residing in those villages, that the family of the said 8 persons had been managing the suit temple and its properties as hereditary kaniyachikarars from the inception of the temple and that, no outsider had ever managed the temple and its properties. They also alleged that the plaintiffs were not in possession of the temple lands, and that they have actually been in possession of the temple lands all these years by paying the kist for the same from time immemorial and collecting lease amounts from their lessees. The defendants also denied that the patta stood in the name of the decendants of the said Karuppa Naicker and Mari Naicker, and in their turn claimed that they were in management of the temple and its properties hereditarily from the inception of the temple and that they were alone entitled to conduct the festival and not the plaintiffs who have been appointed by them as poojaris in the temple under their control and supervision. It was also the defendants' case that in any event some of the plaintiffs' ancestors had by various registered documents parted with their rights in the temple in favour of the defendants. The defendants also contended that the suit as framed is barred both under Section 70 and Section 108 of Hindu Religious and Charitable Endowments Act, 1959.
4. On these rival contentions of parties as many as 9 issues were framed in the suit and Issues 5 and 6 related to the jurisdiction of the Court to entertain the suit. Issues 5 and 6 were:
Issue 5 : Whether the suit is barred under Section 70 of the Madras Hindu Religious and Charitable Endowments Act of 1959 in view of the order in O.A. No. 78 of 1964 and O.A. No. 79 of 1964 on the file of the Deputy Commissioner, Hindu Religious and Charitable Endowments, Madras.
Issue 6 : Whether the suit is barred by Section 108 of the Hindu Religious and Charitable Endowments Act of 1959.
The said two issues were taken up as preliminary issues. It appears that some of the decendants of Karuppa Naicker filed an application under Section 63 (b) of the Hindu Religious and Charitable Endowments Act (hereinafter referred to as the Act) before the Deputy Commissioner in O.A. No. 79 of 1964 for recognition of their alleged poojariship right, but the said petition had been dismissed for default on 29th January, 1966. Another set of persons had filed another application O.A. No. 78 of 1964 before the Deputy Commissioner under Section 63 (a) of the Act for recognition of their right to do pooja and conduct the festival by mamool and custom. That petition also was dismissed on 4th January, 1967, as not maintainable. The defendants contend that the orders passed in those proceedings which had become final will bar the entertainment of a suit, under Section 70 of the said Act. It was alleged by the defendants that they had also filed an application before the Deputy Commissioner in O.A. No. 41 of 1966 for recognising their hereditary rights of trusteeship and that the same is pending disposal. Defendants also contended that the relief claimed in the suit is one coming under Section 63 of the Act and as such the suit was clearly barred by virtue of the provisions of Section 108 of the said Act. The Court below has held that the suit is not barred by the provisions of sections 70 and 108 of the Act. The correctness of the said decision has been canvassed before me.
5. From the facts set out above it is clear that the substantial dispute between the parties is as to who is entitled to conduct the annual festival in the temple as between the plaintiffs and the defendants. The plaintiffs claim that right as being the hereditary poojaris and trustees of the temple. The defendants also claim that they are entitled to conduct the festival as hereditary trustees appointed by the Nattu Vellala Goundars residing in certain villages around the temple, alleging that they are in management of the temple from its inception and that in any event they had acquired such a hereditary right under registered documents executed by the plaintiffs' ancestors. The question is not whether the office of trusteeship is hereditary or not but as to who among the parties are entitled to manage the temple and conduct the festival. Having regard to the main dispute between the parties and the relief claimed by the plaintiffs in the suit, the lower Court held that there being no controversy about the office or the emoluments attached thereto and the controversy being as to who is entitled to celebrate the festival, the relief claimed in the suit will not fall within the ambit of Section 63 of the Act and as such Section 108 will not be a bar to the suit. As regards the earlier proceedings in O.A. No. 79 of 1964 and O.A. No. 78 of 1964 which were put forward as constituting a bar under Section 70 of the Act, the lower Court held that those applications had been dismissed as not maintainable and that as such they would not bar the present suit.
6. The learned Counsel for the petitioners (defendants) contends that the view taken by the lower Court on both the issues is erroneous, that the plaintiffs' claim in the suit to conduct the festival in the suit temple is based on their being hereditary trustees and poojaris in the temple, that such a right cannot be established in a civil suit, that the only remedy for the plaintiffs is to approach the Deputy Commissioner under Section 63 (b) of the Act, that some of the ancestors of the plaintiffs having filed a petition for such a relief unsuccessfully before the Deputy Commissioner, they are not entitled to agitate the question once again in the civil Court and that the bar under Sections 70 and 108 of the Act fully operates in this case. The learned Counsel referred to the decision in Iswarananda Bharathiswami v. Commissioner, Hindu Religious Endowment Board : AIR1931Mad574 , where a Division Bench of this Court had held that 'when by an act of the Legislature powers are given to any person for a public purpose from which an individual may receive injury and when the mode of redressing the injury is also pointed out by the statute, as has been done in this case by Section 84 (2) of Madras Act II of 1927, namely, by an application to the District Court, the suit for the said purpose is not maintainable'. Narayana Mudali v. Periyakalathi Mudali : AIR1939Mad494 , was also referred to. Therein the civil Courts have been held to have no jurisdiction to decide matters of ritual except in so far as a decision on such matters is a necessary incident to the decision of a civil right and that the general rule was that once the general right to worship is conceded or established, the Courts will not endeavour to lay down the ritual which is to be followed nor will they prescribe the manner in which the worship is to be conducted. The above two decisions lay down the well known and established rule of law that where a statute prescribes the mode of redressing the injury that mode is to be resorted to, especially when the statute itself bars the matter being taken to a civil Court. But the question in this case is whether the relief claimed in the suit is one which can be got from the Deputy Commissioner under Section 63 of the Act.
7. In Velayudha Goundan v. Ponnuswami Udayar : AIR1945Mad234 , Somayya, J., had to consider the identical question, that if the right of one set of villagers to conduct an Utsavam in a temple against the opposition of another set of villagers, and the learned Judge expressed that the right of an individual to worship in a particular form as in the past is a civil right, that he is entitled to the protection of the Court in exercise of that right, that a suit by one set of villagers against the aggressive set of other villagers who' prevented the plaintiffs from peacefully carrying on the proceedings and worship of a deity in a temple does not fall within Section 73 of Madras Act II of 1927, and that as such a suit is maintainable in a civil Court for a permanent injunction restraining the defendants from interfering with the performance of the utsavam in the suit temple. In Chinnathambi Mooppan v. Mamundi Mooppan (1966) 1 M.L.J. 361 : (1966) 79 L.W. 173, Veeraswami, J., (as he then was) expressed while dealing with a similar question that:
the question, as is clear from the pleadings, is confined to the rival claims, whether the office is vested in the community of pallars or whether the first defendant is entitled to it as of right. Where the controversy centers round as to which of the rival claimants to the office is entitled to it, it squarely does not fall within the ambit of Section 63(e)....
In Krishnaswami Raja v. Krishna Raja : (1968)1MLJ119 , a Division Bench of this Court had to consider the scope of a similar section, Section 57 (b) of Madras Act XIX of 1951 wherein it was observed:
The jurisdiction of the Deputy Commissioner under Section 57(b) is confined to a decision whether a trustee holds or held office as a hereditary trustee. In other words, the Deputy Commissioner can only decide as to the status of the office of the trusteeship, namely, whether it is hereditary. 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 hereditary trustees. That is a matter not covered by Section 57 of the Act and has to be decided only by a separate suit.
Thirumalaiswami Naicker v. Villagers of Kadambur, Athur Taluk I.L.R. (1968) Mad. 638 : 81 L.W. 342, is also a decision of a Bench wherein it has been expressed:
Under Section 9, Civil Procedure Code, a litigant having a grievance of a civil nature has, independently of any statute, a right to institute a suit in a civil Court under the provisions of the Civil Procedure Code, unless cognisance 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 bar, 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 asserts a right and seeks remedy cannot be readily inferred. Exclusion of the suit in question from the cognisance of the Court must be either expressed or clearly and necessarily implied. A reading of Section 93 shows that it does not impose an absolute bar on the maintainability of a suit in a civil Court. It provides, that a suit of the nature contemplated therein, can be instituted only in conformity with the provisions of the Act. Clearly a suit or other legal proceedings in respect of matters not contemplated in the section can be instituted in the ordinary way.
It is clear from the principles laid down in these latter decisions that the relief claimed in the suit will not fall within the purview of Section 63 of the Act and as such the bar under Section 108 will not apply. For the same reason the orders passed in O.A. No. 79 of 1964 and O.A.N0.78 of 1964 holding that the applications are not maintainable cannot also bar the suit (under Section 70 of the Act. As already Istated the question here is not as to whether the office of the trusteeship in the suit temple is hereditary or not. Both the plaintiffs and defendants claim that they are entitled to be trustees of the temple and claim to have exercised their right hereditarily. Hence the substantial dispute between the parties is as to which of them are the persons entitled to be in management of the temple. The dispute centres round as to which of the rival claimants is entitled to celebrate the annual festival and such a dispute cannot fall within the ambit of Section 63. In the light of the real and substantial controversy between the parties and the relief claimed in the suit, the first issue as to whether Karuppa Naicker or Mari Naicker were the hereditary trustees and poojaris of the suit temple does not appear to be necessary for the purpose of granting relief to the plaintiffs. Issue 2 seems to be sufficiently wide so as to cover the plaintiffs' claim that they are trustees in management of the temple from time immemorial. While dismissing the revision petition upholding the decision of the lower Court on Issues 5 and 6, I direct the deletion of Issue No. 1. The suit will proceed on other issues. There will be no order as to costs.