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Appu Pillay and ors. Vs. Perumal Pillay - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.630; (1912)23MLJ118
AppellantAppu Pillay and ors.
RespondentPerumal Pillay
Cases Referred and Rama Dass v. Hanumantha Row
Excerpt:
specific relief act (i of 1877), section 42 - declaration--consequential relief--charitable properties--suit for declaration of right to manage--plaintiff entitled to management in alternate years. - .....paid court-fees in the court of first instance, as in the lower appellate court, on the basis of a suit for possession but in the second appeal, they paid only a court-fee of rs 10 and on objection being taken by the office, the pleader for the appellants stated that he would confine the appeal to relief for a declaration of their rights. objection is now taken before us that the plaintiffs, being out of possession of the temple and properties, a suit for declaration alone cannot be maintained. we think this objection must prevail on the principle laid down in rathna sabapathi v. ramasami iyer 33 m.k 452 : 5 ind. cas. 630 : 7 m.l.t. 311 : 20 m.l.j. 306 and rama dass v. hanumantha row 21 m.l.j. 952 : 12 ind. cas. 449 : 10 m.l.t. 356 : (1911) 2 m.w.n. 387.2. the learned pleader for the.....
Judgment:

1. The appellants were the plaintiffs in the suit instituted by them asking for a declaration that they were entitled to right of management of certain charitable and endowed properties on alternate years, and they further asked that they might be given possession of the properties during their periods of management and that an injunction might be given restraining the defendant from entering upon the plaintiffs' properties during the plaintiffs' turns of management. The suit was dismissed by both the lower Courts, The plaintiffs had paid Court-fees in the Court of first instance, as in the lower Appellate Court, on the basis of a suit for possession but in the second appeal, they paid only a Court-fee of Rs 10 and on objection being taken by the office, the Pleader for the appellants stated that he would confine the appeal to relief for a declaration of their rights. Objection is now taken before us that the plaintiffs, being out of possession of the temple and properties, a suit for declaration alone cannot be maintained. We think this objection must prevail on the principle laid down in Rathna Sabapathi v. Ramasami Iyer 33 M.K 452 : 5 Ind. Cas. 630 : 7 M.L.T. 311 : 20 M.L.J. 306 and Rama Dass v. Hanumantha Row 21 M.L.J. 952 : 12 Ind. Cas. 449 : 10 M.L.T. 356 : (1911) 2 M.W.N. 387.

2. The learned Pleader for the appellants contends, however, that his clients are en-tided to management only in the alternative years, that as they would not be entitled today to be placed in possession of the properties, we could not give them such a relief and all that would be entitled to is a mere declaration of their rights. We do not think he is right in this contention in support, of which he has not adduced any authority. The learned Pleader then urges that having regard to the view we have taken of the law on this point, he might be allowed to pay full Court-fees now treating the appeal as if it was against the execution decree, But he advisedly limited the scope of the appeal to the first relief asked for in the plaint, viz., a declaration of his rights and we do not think we can allow him at this stage to enlarge the scope of his appeal.

3. The second appeal must be dismissed with costs.


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