P.R. Gokulakrishnan, J.
1. The second defendant is the appellant in this appeal. The first and the second respondents herein filed O.S. No. 203 of 1963 in the District Munsifs Court, Tirunelveli, for a decree declaring the properties set out in the suit schedule as absolutely endowed kattalai properties for the performance of Nithiya Pooja, Neivethiyam, etc., in Perumal Koil, Sivan Koil, Kulakarai Ganapathi Koil and Sastha Elangavu Kannar Koil at Puliyoorkurichi village, Nanguneri Taluk and to direct the defendants 1 to 8 to deliver possession of them on behalf of the trust either to the plaintiffs as worshippers or to the lawful trustee of the Kattalais. The suit further prays for mesne profits from the date of the plaint to the date of delivery of possession. The plaintiffs inter alia alleged that as per the registered partition deed dated 2nd February, 1872, executed between Arunachalam Pillai his brothers, and sons of Ramasubramania Pillai of Puliyoorkurichi village, the schedule properties are absolutely endowed for the performance of Nithiya pooja, Neivethiyam etc., in Perumal Koil, Sivan Koil, Kulakarai Ganapathi Koil and Sastha Elangavu Kannar Ron at Puliyoorkurichi village. The dedication is absolute and the entire income from these properties are to be spent for the said kattalais at Puliyoorkurichi. The recitals in the partition deed clearly establish the trust and admit no other interpretation. The properties were enjoyed by the first defendant and his father only as trustees and not in any other capacity. In short, the properties are to! be the absolute endowment for the kattalais. The plaintiffs further alleged that the first defendant in the suit alienated certain properties either by sale or by mortgage with possession to the defendants 3 to 8 in the suit. But those alienations in favour of defendants 3 to 8 are void. It is further stated in the plaint that the defendants 1 and 2 have obtained razinama decree in O.S. No. -, 620 of 1961 on the file of the District Munsifs Court, Tirunelveli. on 29th November, 1962, wherein they have collusively and fraudulently laid their claims to those properties by the said decree as if they are their own. It is also stated that the said decree, if any, would not bind the trust or the plaintiffs. In fact, it is after the said razinama decree, dated 29th November, 1962. the plaintiffs were aware of the alienation and the said transaction of the first defendant in respect of the plaint schedule properties belonging to the trust. With the above said allegations O.S. No. 203 of 1963 was filed.
2. The District Munsif took up for consideration the first issue in the suit which is as follows:
Is the suit not maintainable by virtue of the provisions of Act (XXII of 1969) and by virtue of the plaintiffs not having obtained the consent in writing of the Advocate-General for instituting the suit?
The District Munsif observing that the dispute arises as to whether the schedule property is a religious endowment, whether it is a specific endowment and whether this endowment if true is wholly or partly of the religious! or secular character and whether the property has been given wholly or partly for religious uses, that under Section 63 of the Hindu Religious and Charitable Endowments Act, 1959, a Deputy Commissioner has been granted power to enquire into and decide the matters, that the proper forum for the decision of these questions would be the Deputy Commissioner, that Section 69 provides for the appeal to the Commissioner by an aggrieved person of an order passed by the Deputy Commissioner, that any party aggrieved by the order passed by the Commissioner has under Section 70 of the Act, the right to institute a suit in Court against such! order, that the Court may modify or cancel such order and any party aggrieved by a decree of the Court may within 90 days appeal to the High Court, that Section 108 of the Hindu Religious and Charitable Endowment Act, 1959, is a specific bar to suits in respect of administration or management of religious or any other matter or dispute for determining or deciding which provision is made in this Act from being instituted in any Court of law, except under and in conformity with! the provisions of this Act, that it is obvious that the plaintiffs who seek to establish the suit schedule property as an endowment must first of all seek their remedies provided for them under the Act and it is only after exhausting the remedies granted to them therein, they may sue in this Court held that the plaintiffs in this case must seek the remedies provided for them under the Act before taking the present action and as such the suit has to be dismissed.
3. On appeal, the Additional District Judge of Tirunelveli took up for consideration as to whether the suit is maintainable in view of Section 108 of Act (XXII of 1959). The Additional District Judge, after going through decision in Viratteeswarar Devasthanam v. Ramanathan : (1953)1MLJ682 which states that it is too much to say that the civil Court has lost its jurisdiction to try suits in which such disputes arose, held that the suit is maintainable. The Additional District Judge, after setting aside the decree of the trial Court, remanded the suit to the lower Court for fresh disposal according to law.
4. Against this decision of remand! order of the Additional District Judge, Tirunelveli, the second defendant has preferred the above Civil Miscellaneous Appeal.,
5. Learned Counsel for the appellant Mr. Kumaraswami Pillai questions the remand order on the ground that the main 'suit without the sanction of the Advocate-General under Section 92 of the Code of Civil Procedure, is not maintainable, that sections! 63 and 108 of Act (XXII of 1959) is a bar to the present suit and that only a revision lies against the order of the trial Court and the appeal is not maintainable. : As regards the argument that only a revision lies, the learned Counsel Mr. Shanmugham brings to my notice Sections 2 and 96 and Order 41, Rule 23 of the Code of Civil Procedure and argues that only an appeal lies.
6. I am convinced that only an appeal lies against the order of the trial Court in this case and as such I do not find any substance in the argument that only a revision lies against the order of the trial Court.
7. As regards the argument that Section 108 is a bar to the filing of the suit, learned Counsel for the appellant has placed before me the relevant sections of the Hindu Religious and Charitable Endowments Act, 1959, and! also the facts of the present case. Section 63 is analogous to Section 57 of the old Act and Section 108 of the present Act is analogous to Section 93 of the old Act. Section 63 of the present Act states:
Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following disputes and matters:
(a) whether an institution is a religious institution;
(c) whether any property or money is a religious endowment;
(d) whether any property or money is a specific endowment;
Section 108 of Act (XXII of 1959) states that no suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provisions is made in this Act shall be instituted in any Court of Law, except under, and in conforming with, the provisions of this Act.
8. Taking the facts of the present case into consideration, the plaintiff in the suit has prayed for a decree for declaring the properties set out in the plaint schedule as absolute endowed kattalai properties for the performance of Nithya Pooja, Neivethiyam, etc., kattalais in the Perumal Koil, Sivan Koil, Kulakarai Ganapathi Koil and Sastha Elangavu Kannar Koil all at Puliyoorkurichi Village, Nanguneri Taluk and for directing the defendants 1 to 8 to deliver possession of the suit properties on behalf of the trust either to the plaintiffs as worshippers or to the lawful trustee of the kattalais. The further prayer in the suit is for directing the! defendants to pay mesne profits from the date of the plaint to the date of delivery of possession and for costs of the suit. No doubt in the body of the plaint they have alleged with regard to defendants 1 and 2 obtaining a Razinama in O.S. No. 620 of 1961 on the file of the District Munsif, Tirunelveli on 29th November, 1962 wherein they have collusively and fraudulently laid their claims to the suit properties by the said decree as if they are their own property. Admittedly the plaintiffs in the suit are not parties to O.S. No. 620 of 1961. : As for the present suit on which the present Civil Miscellaneous Appeal has arisen it is a simple one for declaring the suit properties as absolute endowed kattalai properties for due performance of certain pujas., Hence it is declared that the Deputy Commissioner has power to decide the prayer made in this suit under Section 63 (c) of the Act. Section 108 specifically mentions that no suit can be filed in a civil Court when a provision is made to decide such dispute in the Madras Act (XXII of 1959)| itself. Taking into consideration Sections 63 (c) of the Act reading with Section 108 of the said Act, it will be clear that the scope of the suit and the decision required in the suit will clearly come within the purview and jurisdiction of the Deputy Commissioner of the Hindu Religious and Charitable Endowments. The lower appellate Court while remanding the suit after holding that the civil Court has jurisdiction to try the suit, referred to the decision cited in Viratteswarar Devasthanam v. Ramanathan : (1953)1MLJ682 . In that decision it is clear from the facts of that case that a suit had been filed much earlier to the passing of Act (XIX of 1951). Section 93 of Act XIX of 195.1 is analogous to Section 108 of the present Act. Basheer Ahed Sayeed, J., delivering the judgment in Viratteswarar Devasthanam v. Ramanathan : (1953)1MLJ682 , has stated:
Similarly even Section 93 does not appear to have any retrospective effect so as to prevent the trial of a suit already filed and pending at the time the Act came into force., It has reference only to suits to be filed under the new Act and possibly such suits! cannot be filed under this Act after the Act has actually come into effect without exhausting the remedies provided in the special Act. But before the Act came into force, it cannot be said that suits could not have been filed for determining the relevant merits in any religious institution is wholly or partly religious or secular. There is no section in the new Act which makes Section 93 retrospective in effect.
From the above decision it will be dear that Basheer Ahmed Sayeed, J., meant that Section 93 of Act (XIX of 1951) has specifically put a bar to a civil suit when the disputes involved in the suit can be filed before the Deputy Commissioner of Hindu Religious and Charitable Endowment under Section 50 of the then Act. But he refused to apply the said Section 93 to the particular case tried by him) in view of the fact that the dispute and the filing of the suit tried by him was much earlier to the passing of Section 93 of Act (XIX of 1951). Applying the principles evolved in that decision, it is clear that the present case which has arisen subsequent to the passing of Act (XXII of 1959) can definitely come under the spirit and the bar mentioned and stated in Section 108 of the said Act. The learned Counsel for the respondent Mr. Shanmugam has cited Seshu Reddi v. Rama-Raghavareddy : AIR1964AP118 and Ramaraghava Reddy v. Seshu Reddi : AIR1967SC436 and argued that in view of the fact there is a plea in the suit that the razinama decree has to be set aside the Deputy Commissioner cannot do the same and only a civil Court can set aside such a decree. Ramaraghava Reddy v. Seshu Reddy : AIR1967SC436 deals with a case reported in Seshu Reddi v. Ramaraghava Reddy : AIR1964AP118 on appeal., In the Supreme Court decision there is nothing much to support the proposition taken by the learned Counsel for the respondent since that decision deals with Section 42 of the Specific Relief Act as to whether a suit for a mere declaration will lie or not. But the High Court when it disposed of the said case in Seshu Reddy v. Ramaraghava Reddy : AIR1964AP118 held:
Whether the plaintiff is entitled to the declaration is a different matter but looked at purely from the standpoint of the bar under Section 93 of the Act, it cannot be maintained that the present plaintiff could seek the relief which he wants, namely, the setting aside of the compromise decree in O.P. No. 3 of 1950, in a proceeding under Section 57 of that Act., There can be little doubt that a Deputy Commissioner, acting under Section 57 has no jurisdiction to go into the validity of a compromise decree. It is beyond the scope of his powers vested under Section 57., If so much is conceded, the conclusion becomes inescapable that the present suit, in which the primary relief sought for is the setting aside of the compromise decree, can only be maintained in a civil Court., The jurisdiction of the civil Court to grant relief with regard to the binding nature of the compromise decree is neither expressly nor impliedly barred by any of the provisions of the Hindu Religious and Charitable Endowments Act. Therefore, looked at from any point of view, we have no doubt that the ban under Section 93, of the Act cannot be set up; by the defendants.
I do not think that the facts of the case reported in Seshu Reddy v. Ramaraghava Reddy : AIR1964AP118 can be made applicable to the facts of the present case. The primary relief sought for, in the present case is not for setting aside any razinama decree but for declaring a suit property as absolutely endowed kattalai properties for the performance of certain religious functions.] Further, in the present case the plaintiffs were not parties to the suit wherein razinama decree has been passed nor the prayer in the suit is for setting aside the said razinama. The declaration prayed for in the present suit can be easily decided by the Deputy Commissioner foil Hindu Religious and Charitable Endowments under Section 63, (c) of the Act and to get such a decision from a civil Court is already barred under Section 108 of the Madras Act XXII of 1959. In Tirummalaisami v. Villagers of Kadambur : AIR1969Mad108 Natesan, J., delivering the judgment on behalf of the Bench has stated;
It is nobody's contention that the present suit relates to the administration or management of a religious institution. The next question 1st whether the suit relates to any other matter or dispute for determining or deciding which provision is made in the Act. Clearly there is no provision in the Act for determination of the dispute as raised in the suit. This is a simple suit by the landlord against his tenant who sets up title in a third party. Relief is no doubt claimed also against the person who happens to be one of the trustees of the institution on the averment that he is interfering with the. lawful title and the realisation of the rent by the plaintiff from the second defendant Board. 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 fight and seeks remedy cannot be readily inferred., Exclusion of the suit in question from the cognisance of the Court must be either expressly 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. Section 93 imposes certain statutory restrictions in respect of suits mentioned therein, suits relating to the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in the Act., The suits under the two categories mentioned in the section must be instituted under and in conformity with the provisions of the Act. This last limb of the section brings out that the restriction on suits or other legal proceedings, is in respect of matters for which provision is made in the Act. It cannot mean that suits of the category for instituting which, no provision is made in the Act are barred., There can be suits not covered by the Act and aggrieved parties will be deprived of all remedies where no provision is made under! the Act for securing the relief they desire and at the same time it should be held that remedies outside the Act are barred. Section 93 clearly bars only those suits for which provision has been made in the Act and it does not prohibit the institution of suits under the general law which do not fall under the scope of any of the sections of the Act.
It is clear from the reading of the above passage in Tirumulaisami v. Villagers of Kadambar I.L.R. (1968) Mad. 638 : A.I.R. 1969 Mad. 108 the facts of the said case are completely different from the facts of the present case.] In that case Natesan, J., has stated that there is no provision in the Act for the determination of the dispute as raised in that suit. But in the present case there is a clear! provision under Section 63 (c) of the Act for determination of the dispute raised in the suit. The principle laid down in that decision is clear to the effect that Section 93 which is analogous to the present Section 108 is a clear bar to those suits for which provision has been made in the Act. Applying the principle it is clear that for deciding the dispute and giving a decision for, the prayer raised in that suit, there is a provision under Section 63 (c) in the Act itself.
9. The next argument advanced by Mr. Kumaraswami Pillai, the advocate for the appellant is that the suit itself is not maintainable without the sanction of the Advocate-General as per Sections 92 and 93 of the Code of Civil Procedure.) Mr. Shanmugam, the advocate for the respondent brings to my notice under Section 5(e) of the Act XXII of 1959 which states:
The following enactment shall cease to apply to Hindu religious institutions and endowments, namely.
(e) Sections 92 and 93 of the Code of Civil Procedure, 1908 (Central Act V of 1908).
Mr. Kumaraswami Pillai meets this argument by stating that if Sections 92 and 93 cannot be applied to the facts of the case, it will be clear that only the Act applies to the present dispute and hence the jurisdiction of the civil Court is completely barred under Section 108. If the respondent argues that that the civil Court has jurisdiction, in that case, the dispute must be taken out of the purview of the Hindu Religious Institutions and Endowments Act and as such Sections 92 and 93 must be made applicable to the suit.
10. In view of my finding that Section 108 of Act XXII of 1959 will be a bar to the present suit, it is unnecessary to go into the question whether sanction under Section 92 of the Code of Civil Procedure, is necessary or not in this case. In view of my discussion and finding as stated above, I allow the Civil Miscellaneous Appeal and set aside the judgment and decree passed in A.S. No. 165 of 1964 by the Additional District Judge, Tirunelveli and confirm the decision of the Trial Court on the preliminary issue holding that the plaintiffs' suit is not maintainable by virtue of the provisions of Act XXII of 1959. In the circumstances of the present case, there will be no order as to costs.