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Chandrasekharan Pillai and ors. Vs. Muthu Bogi (Decd.) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1969)2MLJ643
AppellantChandrasekharan Pillai and ors.
RespondentMuthu Bogi (Decd.) and ors.
Cases ReferredSubramania Aiyar v. Nagarathna Naicker
Excerpt:
- .....was that they were the worshippers in the mariamman temple in ammayanaickanur village, that the suit property belongs to that temple and that the defendants have encroached upon the suit property. the defendants contended that the temple did not belong to the bogis alone but belonged to the villagers of ammayanaickanur and that the site does not belong to the temple and the plaintiffs who are only a section of the community cannot maintain the suit. the trial court gave a decree declaring the title of the temple to the suit property. on appeal by both the parties, the lower appellate court has held that the temple is entitled only to the portion marked himl in exhibit c-2 plan and dismissed the suit in regard to the third defendant and the plot abgf in exhibit c-2 plan. the defendants.....
Judgment:

A. Alagiriswami, J.

1. The defendants in the suit are the appellants. The suit was filed by the plaintiffs for possession on the ground that the suit site belongs to the Mariamman temple which belongs to the plaintiffs and to other Bogi families of seven villages. The case of the plaintiffs was that they were the worshippers in the Mariamman temple in Ammayanaickanur village, that the suit property belongs to that temple and that the defendants have encroached upon the suit property. The defendants contended that the temple did not belong to the Bogis alone but belonged to the villagers of Ammayanaickanur and that the site does not belong to the temple and the plaintiffs who are only a section of the community cannot maintain the suit. The trial Court gave a decree declaring the title of the temple to the suit property. On appeal by both the parties, the lower appellate Court has held that the temple is entitled only to the portion marked HIML in Exhibit C-2 plan and dismissed the suit in regard to the third defendant and the plot ABGF in Exhibit C-2 plan. The defendants have filed this second appeal in respect of the declaration of the title granted and the plaintiffs have filed the memorandum of Cross-objections in respect of the dismissal of their prayer for possession.

2. The finding of the Courts below as regards title is amply supported by evidence and it is unnecessary to discuss that question because it arises on a pure question of fact. Therefore, the only questions for decision are (1) whether the plaintiffs are not entitled to maintain the suit, they being only a section of the community and (2) whether the plaintiffs are not entitled to the relief of possession. As regards point (1), it must be pointed out that the Courts below have found that the temple belongs not only to the Bogis but also the other residents of the village of Ammayanaickanur. But even so, I see no objection to the plaintiffs maintaining the suit for declaration of the title of the temple to the suit property. . The suit is not to establish the title of the plaintiffs and the members of their community to the temple to the exclusion: of the other residents and members of other communities in the village of Ammayanaickanur. It is only to establish the right of the temple itself to the suit property. There is no objection to such a suit being filed. In a decision of mine, reported in Amirjan v. Shaik Sulaiman Sahib : (1968)2MLJ559 , I have discussed all the relevant authorities relating to this question. I have, there, drawn attention to the decision of Venkataramana Rao, J., in Ahmed Kutti v. Ayithraman Kutti : AIR1937Mad819 , where the learned Judge has observed:

The principle underlying such a suit has been that the suit is really on behalf of the trust and the worshippers must be deemed to be suing in right of the trustees as pointed out in Chidambaranatha Thambiran v. Nallasiva Mudaliar : AIR1918Mad464 , but in cases where possession cannot be awarded to the plaintiffs on the ground that there is a lawful trustee and that such a trustee has not been made a party to the suit, the suit cannot be dismissed, for other reliefs can be granted, for example, a declaration that the property is trust property vide Kazi Hassan v. Sagun Balkrishna I.L.R. (1899) 24 Bom. 170.

3. Thus in so far as the relief of declaration of title of the temple to the suit property is concerned, the plaintiffs are entitled to maintain the suit. It is also necessary to mention that the first plaintiff is the Poojari of the temple.

4. As regards the second point, though it is true that the defendants had contended that there was a trustee for the temple, neither party focussed its attention on this question, apparently because, the defendants contended that the property belonged to themselves and not to the temple. It is, therefore, not possible to permit them to now raise the question that the plaintiffs are mere worshippers about which there is no dispute at all cannot maintain the suit for possession. I have pointed out in the above decision of mine that where trust property has been alienated by the trustee and is in the wrongful possession of a trespasser, it is open to any worshipper to maintain a suit even for possession, if there is no lawful trustee. This Court has held in Subramania Aiyar v. Nagarathna Naicker (1910) 30 M.L.J. 151, that it is competent to a worshipper to maintain a suit in ejectment against the alienees in possession of the trust property to the trustee after declaring the alienation invalid. Therefore, there is no objection to a worshipper taking steps to regain possession of the properly belonging to a trust which is in the possession of a trespasser, if the trustee has not taken any steps to recover possession of the property. It, therefore, follows that while the Courts below were undoubtedly right in declaring the title of the temple over the property marked HIML in the plan Exhibit C-2, they were not right in dismissing the plaintiff's suit for possession. The second appeal is therefore dismissed and the Memorandum of Cross-objections is allowed and there will be a decree for possession also in favour of the plaintiffs. It is unnecessary to mention that the possession decreed to the plaintiffs is not in their individual rights or even in their right as representing the members of the Bogi community but purely as worshippers of the temple. It is of course open to the lawful trustee to take possession of the property at any time he chooses from the plaintiffs. The appellants will pay the costs of the respondents.


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