S. Padmanabhan, J.
1. The question that arises for consideration in this appeal is whether the suit which is for a declaration that the suit properties are trust properties belonging to Sri Vallaba Ganesar Devasthanam, Tiruvannamalai and for recovery of possession of the same is barred under Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act (Tamil Nadu Act XXII of 1959), (for short, the Act).
2. The plaintiffs in O.S. No. 24 of 1974 on the file of the Sub-Judge, Tiruvannamalai viz., Sri Vallaba Ganesar Devasthanam, Tiruvannamalai by trustees are the appellants.
3. The facts leading to the institution of the suit may be briefly stated as follows. There is a temple called Sri Vallaba Ganesar Devasthanam, Thiruvannamalai. The suit properties are the Devasthanam properties having been endowed by its original owner in favour of the temple. The first defendant had been appointed as a trustee of the temple. Subsequently, plaintiffs 1 to 4 have been appointed as trustees of the Devasthanam for a period of 3 years by the Hindu Religious and Charitable Endowment Board, (for short, the Board). The appointment was made on 29th September, 1973. The first plaintiff has been elected chairman, Board of Trustees at the meeting held on 19th October, 1973. The first defendant has been directed to hand over charge to the first plaintiff with all the relevant records as well as the properties of the Devasthanam. Without handing over the charge to the first plaintiff, the first defendant filed R.P. No. 221 of 1973 before the Commissioner of the Board and has obtained a stay of the election of the Chairman. In the meanwhile the first defendant alienated the suit properties to defendants 3 to 20 under various documents. The properties are inalienable, The sanction of the Board had not been obtained prior to the alienation. If at all the alienation of the properties has to be effected it could only be done by public auction. The first defendant is stated to have deposited the sale proceeds in fixed deposits with the Cooperative Urban Bank Limited, Tiruvannamalai, in the name of his wife nominating his wife as the heir. The properties have been sold for a ridiculously low price. The alienations are not binding on the trust. The first defendant is not entitled to remain in possession of the properties. The first defendant is denying the title of the Devasthanam to the suit properties. In the circumstances the suit has been filed for a declaration that the suit properties are trust properties belonging to the Devasthanam and for the recovery of possession of the same from the defendants.
4. The suit is resisted by defendants 1, 3 to 7, 10 to 13, 15, 16, 18 and 19. The first defendant has contended that the suit is barred under Sections 108 and 63 of the Act, in view of the fact that there is a specific provision in Sections 101, 63-d and 63-g of the Act to decide whether the suit properties are religious endowment. The suit properties have not been endowed to the Devasthanam at all. A charge has been created in favour of the temple to the extent of Rs. 150 per year. Under the compromise decree in O.S. No. 122 of 1909 a provision had been made for the creation of a private trust to carry on certain charitable and religious objects, partly for religious and partly for secular, in respect of items 15 to 20 therein. The properties were to be divided among three persons. All the sharers should out of the profits pay Rs. 150 for conducting the charitable and religious objects. The first defendant has been accordingly carrying out the directions contained in the compromise decree. The first defendant is the hereditary trustee of Ammamuthu Ammal Private Trust and only in that capacity he has sold the properties. The properties that have been sold are uncultivable lands yielding no income. It is admitted that the first defendant is keeping the money with him but only in the Interest of the trust. The various alienations said to have been effected by the first defendant are admitted. Neither the plaintiffs nor the Commissioner of the Board have any right whatever to question the alienations. The suit is not maintainable and is liable to be dismissed. The 3rd defendant has filed a separate written statement on the lines of the written statement filed by the first defendant. The rest of the defendants have adopted the written statement filed by the 3rd defendant. The 2nd defendant. Commissioner of the Board supports the plaintiffs and he has no objection to a decree being passed in favour of the plaintiffs. Defendants 9 and 14 remained ex parte.
5. The trial Court raised as many as six issues. Issue No. 1 related to the maintainability of the suit and it reads as follows:
Whether the suit is barred by Sections 63, 108 and 101 of the Hindu Religious and Charitable Endowments Act.
6. The issue was taken as a preliminary issue and tried. The trial Court found on a consideration of the relevant law on the subject, that the suit was barred under Section 103 of the Act and it dismissed the suit. Consequently the Devasthanam has filed the present appeal.
7. The question that arises for consideration is whether the civil Court has jurisdiction to try the suit.
8. Before we consider the issue arising for Consideration it will be useful to understand the nature of the suit. The plaintiffs 1 to 4 have been admittedly appointed trustees of the Devasthanam by the Board. The first plaintiff has been elected Chairman of the Board of Trustees. The first defendant, according to the plaint, was said to have been appointed as a trustee of the temple even before the plaintiffs. The first defendant has been directed to hand over charge to the first plaintiff of all the relevant records and properties of the Devasthanam. It is further stated that the first defendant had alienated all the suit properties in favour of defendants 3 to 20. Defendants 3 to 20 who are alienees are in possession of the suit properties belonging to the Devasthanam under alienations effected by the first defendant. The alienations have been challenged as unauthorised and not supported by consideration and not binding on the trust. Defendants 3 to 20 are said to be in wrongful possession of the suit properties. It is in these circumstances that the plaintiffs have filed this suit for a declaration that the suit properties are trust properties belonging to the Devasthanam and for recovery of possession of the suit properties from defendants 1 and 3 to 20. The substance of the contentions of the contesting defendants is that these properties did not belong to the Devasthanam at all. According to the defendants under the compromise decree in O.S. No. 122 of 1909 on the file of the District Munsif's Court, Tiruvannamalai only a charge has been created in favour of Ammamuthu Ammal Private Trust to the extent of Rs. 150 per year and that the properties had been divided among the first defendant and two others who are parties to the earlier suit.
9. Section 63 of the Act reads as follows:
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;
(b) Whether a trustee holds or held office as a hereditary trustee;
(c) Whether any property or money is a religious endowments;
(d) Whether any property or money is a specific endowment;
(e) Whether any person is entitled, by custom or otherwise to any honour, emolument or prequisite in any religious institution and what the established usage of a religious institution is in regard to any other matter;
(f) Whether any institution or endowment is wholly or partly of a religious or secular character, and whether any property or money has been given wholly or partly for religious or secular uses; and
(g) Where any property or money has been given for the support of an institution which is partly of a religious and partly of a secular character, or the performance of any service or charity connected with such an institution or the performance of a charity which is partly of a religious and partly of a secular character or where any property or money given is appropriated partly to religious and partly to secular uses, as to what portion of such property or money shall be allocated to religious uses.
10. Section 69 provides that any person aggrieved by any order passed by the Deputy Commissioner may within sixty days from the date of the publication of the order or of the receipt thereof as the case may be, appeal to the Commissioner and the Commissioner may pass such order thereon as he thinks fit. Section 70 provides that any party aggrieved by an order passed by the Commissioner: (i) under Sub-section (1) or Sub-section (2) of Section 69, and relating to any of the matters specified in Section 63 Section 64 or Section 67; or (ii) under Section 63, Section 64 or Section 67 read with Sub-section (1)(a), (2) or (4)(a) of Section 22 or under Section 65, may within ninety days from date of receipt of such order by him, institute a suit in the Court against Such order and the Court may modify or cancel such order, but it shall have no power to stay the order of the Commissioner pending the disposal of the suit.
Section 108 provides as follows:
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 provision is made in this Act shall be instituted in any Court of Law, except under, and in conformity with, the provisions of this Act.
11. The principle on which the jurisdiction of the civil Court is excluded under Section 108 of the Act are now well-settled. If the dispute raised in the suit relates to the administration or management of a religious institution or any other matter for the determination of which a provision has been made in the Act the bar under Section 108 of the Act will be attracted. On the other hand if the question arising for adjudication falls outside the scope and ambit of Section 108 of the Act, then the civil Court will have jurisdiction to entertain the suit and the bar of exclusion of jurisdiction provided for under Section 108 cannot be invoked.
12. It is equally settled that if in a suit any matter in respect of which a provision is made under the Act had to be incidentally decided, the jurisdiction of the civil Court will not be excluded. To be more specific if any other question, in respect of which the power is conferred on the Deputy Commissioner to decide under Section 63 of the Act, arises incidentally for consideration in a suit, the jurisdiction of the civil Court will not be excluded. Notwithstanding Section 108 of the Act, where the dispute relating to a temple is only between two private parties and the Board is not directly concerned, the civil Court has jurisdiction to try the suit.
13. In Venkatacharyulu v. Vasireddy Harihara Prasad : AIR1935Mad964 Varadachariar, J., has held that the bar under Section 73 is only in respect of suits relating to the administration or management of the trust, i.e., proceedings 'against the trustee and not in respect of proceedings against the person who is wrongly in possession of the property in which he is interested.
14. In S.A. No. 117 of 1959, the reliefs prayed for in the suit were for a declaration of the title to the temple and its properties and for delivery of possession of the properties. The Court observed that the dispute was about the title to the temple and its properties, that the suit was one for possession and the substantial issue was whether the contesting defendant's possession was lawful. It was found that the question for determination was not whether the defendant had got a hereditary right or not, but whether the plaintiffs had a superior right, and it might be that while considering the matter, the further question about the second defendant being a hereditary trustee might incidentally arise. But a question which arises incidentally cannot oust the jurisdiction of the civil Court to decide the suit, particularly when the substantive relief of declaration of title and possession can be only granted by that Court.
15. The next case to be referred to is the one reported in Ayisomma v. Kunhali : AIR1957Mad674 The case arose under Section 84 of the Act II of 1927. Confirming the judgment of Rajmannar C J., a Bench of this Court held that a civil Court has jurisdiction to decide whether a particular institution is a public temple or not when such a question arises incidental to other disputes in the case before the Court. The dispute referred to in Section 84 is a dispute between the trustee of an institution on the one hand and the Board on the other. The section does not bar either expressly or impliedly the jurisdiction of the civil Court when the dispute is not with the Board but between two private parties.
16. In Pooniah Nadar v. Chellian Nadar : (1970)2MLJ526 the question of exclusion of jurisdiction of the civil Court was raised before Venkataraman, J. There the suit was filed by the plaintiffs for a declaration that a certain temple known as Bhadrakali Amman Temple and its properties constituted a public trust and for recovery of possession of the properties from the defendants. The plaintiffs alleged that they were the only constituted trustees. In earlier proceedings under Section 145, Criminal Procedure Code, it was held that the defendants were in possession. The defendants raised a contention that the suit was not maintainable in a civil Court by virtue of Sections 63 and 108 of the Act. The case of the defendant was that the temple was not one in which the public had a right of worship and that it was, what is loosely termed, a private temple of the family of the defendants and that the properties also belonged to the private trust. The learned Judge in those circumstances held that where the dispute relating to a temple was only between two private parties and the Board was not directly concerned, the civil Court had jurisdiction to try the suit. In this case the learned Judge has followed the decision of Rajmannar, C.J., in S.A. No. 1396 of 1948, which was affirmed in Ayisomma case. : AIR1957Mad674 .
17. In State of Madras v. K. Melamatam. : AIR1965SC1570 one of the disputes was whether the institution was a religious institution within the meaning of Act XIX of 1951. Specific provision was made in Sections 57, 61 and 62 of the Act for determination of that dispute by the Deputy Commissioner, the Commissioner and eventually by a suit instituted in a Court under Section 62. The suit was not brought under or in conformity with Section 62 and consequently the Supreme Court held that in so far as the suit claims the relief of injunction restraining the levy of contribution and audit fees under Act XIX of 1951, it was barred by Section 93 of the Act. It may be noted that the case before the Supreme Court was directed against the Board in so far as there was a prayer for an order of injunction restraining the Board under Sections 69 and 70 of the Act on the allegation that the question was outside the purview of the Act and the levy was otherwise illegal.
18. In Vedagiri Temple v. I.P. Reddy : 1SCR280 the Supreme Court had an occasion to construe Section 93 of Act XIX of 1951 relating to the bar of jurisdiction of civil Court. Subba Rao, CJ., for the Bench held as follows:
Under Section 9 of the Code of Civil Procedure, the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is a well-settled principle that a party seeking to oust jurisdiction of an ordinary civil Court shall establish the right to do so. Section 93 of the Act does not impose a total bar on the maintainability of a suit in a civil Court. It states that a suit of the nature mentioned therein can be instituted only in conformity with the provisions of the Act, that is to say, a suit or other legal proceeding in respect of matters not covered by the section can be instituted in the ordinary way. It therefore imposes certain statutory restrictions on suits or other legal proceedings relating to matters mentioned therein. Now, what are those matters? They are: (1) administration or management of religious institutions; and (2) any other matter or dispute for determining or deciding which provision is made in the Act. The clause 'determining or deciding which a provision is made in this Act', on a reasonable construction, cannot be made to qualify 'the administration or management' but must be confined only to any other matter or dispute. Even so, the expression 'administration or management' cannot be construed widely so as to take in any matter however remotely connected with the administration or management. The limitation on the said words is found in the phrase 'except under and in conformity with the provisions of this Act'. To state it differently, the said phrase does not impose a total bar on a suit in a civil Court but only imposes a restriction on suits or other legal proceedings in respect of matters for which a provision is made in the Act. Any other construction would lead to an incongruity, namely, there will be a vacuum in many areas not covered by the Act and the general remedies would be displaced without replacing them by new remedies.
19. A similar question arose for consideration before a Bench of this Court in S.N.P. Nadar v. T.P. Charity : AIR1971Mad253 The suit related to the Thillayadi Pillayar Temple Charity in Nagapattinam. By virtue of the powers conferred on him under Section 20 of Act XIX of 1951, the Commissioner had appointed one M.S.Pandian as an interim trustee of the temple to take action to recover the properties of the temple and look after the management of the temple affairs. The interim trustee therefore filed a suit for the recovery of possession of the suit properties from the alienees and the prior trustees. The contention of the defendant was that under the terms of an earlier compromise decree there was only a charge on the income from the properties for religious and charitable purposes but since the temple was never built the dedication of the suit properties or its income failed and became void. There was a further plea that the question whether a valid trust or endowment was in existence was one within the exclusive jurisdiction of the Deputy Commissioner of the Board to enquire into and a civil suit in respect of such a dispute was barred under Section 93 of Act XIX of 1951. Ramanujam, J., speaking for the Bench observed as follows:
We will now come to the next point raised by the learned Counsel for the appellant Sri R. Gopalaswami Iyengar about the jurisdiction of the Civil Court. According to him, the question whether the suit properties are invested with a trust character, is one which falls under Section 57(d) of the Hindu Religious and Charitable Endowments Act, and under Section 93 of the Act, the civil Court will have no jurisdiction to entertain a suit of that kind, and that relief for that purpose should be obtained from the several provisions contained in the Statute itself. The short answer to this argument is that the present suit is not exclusively for a declaration that the plaint schedule properties are vested in trust. The main relief is recovery of possession of the properties of the trust from the alienee who is a stranger to the trust. The investigation of the trust character of the properties is only incidental to the main relief of recovery of possession. There is ample authority for the view that a suit for relief of such a kind is not barred.
20. The learned Judge has followed the decision of the Supreme Court in Sri V.L.N.S. Temple v. I. Pattabhirami : 1SCR280 and also the observation of Rajamannar, CJ., in S.A. No. 1396 of 1948 which decision was confirmed by a Bench of this Court in Ayisomma's case. (1951) 1 M.L.J. 5 : 69 L.W. 1023
21. The respondents strongly relied upon the judgment of Palaniswami, J., rendered for Ismail, J., and for himself, in Thiruvengada Varadchariar v. Srinivasa Iyengar : (1973)1MLJ266 The plaintiffs in that case claiming themselves to be hereditary trustees of Sri Venugopalaswami Temple, Katteri, Mannargudi, along with the defendants 3 and 4 filed a suit for recovery of possession of the trust properties from defendants 1 and 2. The defence of the first defendant was that the office of trustee was not hereditary, that from time to time the office of trustee was being filled up by the Area Committee and thereafter by the Board and the first defendant by virtue of such appointment was in possession. The first defendant also raised a contention that the suit was barred under Section 108 of Act XXII of 1959. Palaniswamy, J., speaking for the Bench held that the suit was barred. The learned Judge further held that the fact that the Deputy Commissioner cannot grant the relief of possession claimed by the plaintiff was not a ground to hold that the suit was maintainable. The form of relief is not the sole criterion to decide the question of maintainability of the suit. Reading the plaint as a whole, it irresistibly follows that only if the plaintiffs establish that they were hereditary trustees, they can succeed in getting the reliefs asked for. One of the main issues arising for consideration being whether the plaintiffs are hereditary trustees, that issue must be decided as laid down in Section 63. The suit therefore is. barred under Section 108 of the Act.
22. The question again came up for consideration before another Bench of this Court consisting of Kailasam, J. (as he then was) and N.S. Ramaswami, J in Sri Venkataramanaswamy Deity v. Vadugammal : (1974)1MLJ431 . There Sri Venkataramanaswami Deity at Kothur, by its trustee filed a suit for the declaration of its title to the suit properties, for possession and for past and future mesne profits. It was stated in the plaint that the defendant had obtained possession of the properties with the permission of the villagers on a promise to pay rent, but she failed to pay rent and started asserting her own title to the suit properties. The defendant contended that she was in possession of the suit property in her own right and had perfected title by adverse possession. The defendant also raised the ground that the civil Court is barred from trying the suit under Sections 57 and 93 of the Act XIX of 1951.
23. Kailasam, J., after referring to the various decisions on the question observed as follows:
As already pointed out, the procedure prescribed under the Act regarding the matters specified in Section 57 should be followed before the Deputy Commissioner and in the appeal or revision before the Commissioner, before a suit is filed. A relief which cannot be granted by the Deputy Commissioner can be asked for in a civil Court. If, in deciding whether the plaintiff is entitled to the relief asked for, the civil Court also has to decide certain issues which may fall within Section 57 of the Act, the civil Court's jurisdiction is not barred. There is no provision for reference by the civil Court of a particular issue which is within the scope of Section 57 to the Deputy Commissioner for determination. Equally, the plaintiff who seeks relief from a civil Court cannot be asked to get adjudication of an incidental question from the Deputy Commissioner before he filed a suit. Therefore, the preponderance of authority of our Court is that a civil suit is not barred in respect of a relief which cannot be granted by the Deputy Commissioner and that in such a suit, the civil Court has jurisdiction to decide incidental issues which are within the jurisdiction of the Deputy Commissioner.
24. The attention of the learned Judges was drawn to the decision of the Bench of this Court in Thiruvengada Varadachariar v. Srinivasa Iyengar : (1973)1MLJ266 . After referring to the facts of that case Kailasam, J., has observed as follows:
The reasoning and the conclusion arrived at by the Bench is not in conformity with the decision of the Supreme Court in V.L.N.S. Temple v. I. Pattabhirami : 1SCR280 and of this Court in Agasthiappa Mudaliar v. Manicka Gounder and three Ors. A.S.A. No. 117 of 1957 and Pachamuthu Nadar v. T.P. Temple Charity : AIR1971Mad253 . In fact the attention of the Bench was not drawn to the decision of the Supreme Court in V.L.N.S. Temple v. I. Pattabhirami : 1SCR280 and that of this Court in Pachamuthu Nadar v. T.P. Temple Charity : AIR1971Mad253 . The law laid down by the Supreme Court in the decision referred to above is that Section 93 of the Act will apply only to matters for which provision has been made in the Act. It does not bar suits under the general law which do not fall within the scope of any of the sections of the Act. Strictly construed this would mean that when any relief is asked for which could not be granted under the Act, a civil suit is not barred. This Court has further laid down the position in the above two decisions that the jurisdiction of the civil Court to try a suit and issues arising incidentally though such issues would fall within the jurisdiction of the Deputy Commissioner, is not barred. The observation of the Bench in Thiruvengada Varadachariar v. Srinivasa Iyengar : (1973)1MLJ266 , that one of the main issues that arises for consideration is whether the plaintiffs and defendants 3 and 4 are hereditary trustees and for deciding that issue, express provision is made in Section 63 of Act XXII of 1959 and hence the suit is barred by Section 108 of that Act is difficult to reconcile with the view expressed by the Supreme Court and this Court in the decisions referred to above.
25. Yet another case to be referred to is the one rendered by Nainar Sundaram, J., in C.R.P. No. 2176 of 1978. The learned Judge has summarised the legal position thus:
From the above discussion, it is clear that if the controversy raised in the suit is one in respect of 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 bar under Section 108 of the Act would come into play If the scope of the controversy raised in the suit could not come within the ambit of Section 108 of the Act, the civil Court will have jurisdiction to decide the suit and the exclusion of the jurisdiction under Section 108 of the Act cannot be invoked and applied to. such a case.
There may be cases where the questions which may come within the scope of Section 108 of the Act may come up for consideration incidentally for decision of the controversy in the suit. In such cases it would be very difficult to state that the civil Court has no jurisdiction to consider and adjudicate such questions incidentally for deciding the main controversy in the suit.
It was pleaded by the learned Counsel for the respondent that there is a conflict between T. Varadachariar's case : (1973)1MLJ266 and Sri Venkatanarayanaswamy Deity's case : (1974)1MLJ431 and that therefore, the matter should be referred to a larger Bench. The later Bench in Sri Venkatanarayanaswamy Deity's case : (1974)1MLJ431 has elaborately considered the decision of the Bench in T. Varadachariar's case : (1973)1MLJ266 and has come to the definite conclusion that the said decision was contrary to the ratio laid down by the Supreme Court in V.L.N.S. Temple's case : 1SCR280 . In view of the clear finding of the Bench in Sri Venkatanarayanaswamy Deity's case : 1SCR280 that the earlier Bench decision is contrary to the dictum in the Supreme Court case I do not agree that the question should be referred to a larger Bench for consideration.
26. Yet another contention was raised by the learned Counsel for respondents that the plain tiffs could have moved the District Magistrate for recovery of possession of the properties under Section 101 of the Act.
27. In this connection it will be useful to refer to the decision in M. Venkata Ramana v. Sri Rama Mandiram : AIR1966AP197 . In that case the religious Endowments Board assumed control of the suit temple, appointed the plaintiff as a trustee thereof by removing the defendant from the trusteeship. The plaintiff filed a suit for the recovery of the suit properties from the defendant on the allegation that the suit temple was a public temple, that the suit properties belonged to the deity and that he was authorised to institute the suit by the Board. The defendant contended that the suit temple was not a private temple, that the suit properties are his private properties and that the civil Court had no jurisdiction to entertain the suit by virtue of the bar created by Section 93 of the Act. In those circumstances it was held by the Bench of the Andhra High Court that the suit was not barred by Section 93 and the civil Court had jurisdiction to entertain the suit. When the defendant was removed as a trustee and the plaintiff appointed in his place it was open to him to have followed the remedies provided for by the Act and disputed the correctness of the plaintiff's appointment. But that was not done. It is no doubt true that Section 87 provides for summary remedy for the plaintiff to obtain possession of the properties endowed. But the Endowment Board thought fit to advise the plaintiff to file a regular suit and obtain possession. By this procedure, the defendant if at all was in an advantageous position, but in no way prejudiced'.
28. This decision is an answer to the contention raised by the learned Counsel for the respondents that the plaintiffs could have moved the District Magistrate for recovery of possession of the properties under Section 101 of the Act. Merely because there is a summary provision under Section 101 of the Act for the recovery of possession of the properties through the District Magistrate it does not mean the right to file a civil suit is taken away provided it is not barred under Section 108 of the Act.
29. Finally it is necessary to refer to the decision in Narayanan Chettiar v. Commr., H.R. & C.E. (1978) 2 M.L.J. 574 which is a case decided by me. There a suit was filed for a declaration that a temple is a private temple of the plaintiffs and that therefore, they are the hereditary trustees and for a permanent injunction restraining the defendants from interfering with their management of the temple and its properties. A contention was raised that the suit was not maintainable. On the facts of that case I upheld the plea that the suit was not maintainable. In that case the decision in Sri. Veakatanarayanaswamy Deity's case : (1974)1MLJ431 was cited before me. In that context I have stated that on the circumstances of that case it could not be said that the declaration sought for by the plaintiffs was only incidental to the relief of injunction. In view of the facts of the case I have stated that the Bench decision in Sri Venkatanarayanaswamy Deity's case : (1974)1MLJ431 was not applicable.
30. On the facts of this case it is clear that the jurisdiction of the civil Court is not excluded. The plaint proceeds definitely on the basis that the first defendant had been earlier appointed as trustee and subsequently plaintiffs 1 to 4 have been appointed trustees by the Board. There is a clear statement that the first defendant has been directed to hand over charge of all the records and properties of the trust to the newly appointed trustees, viz-, plaintiffs 1 to 4. The alienees from the first defendant are in possession of the suit properties. The alienees are strangers so far as the Devasthanam is concerned and naturally therefore, the plaintiffs have to recover possession of the properties from the strangers who are in wrongful possession, according to the plaintiffs, of the suit properties. This is the main and substantial relief asked for in the suit.
31. The Deputy Commissioner in exercise of his powers could not have granted this relief of recovery of possession of the suit property from the alienees. Therefore, the prayer for declaration of title of Devasthanam to the suit properties which has been necessitated on account of the denial of the right of the Devasthanam on the part of the defendants 1 and 3 to 20 is only incidental to the prayer for recovery of possession of the suit property. Further, the suit is not directed against the Board. This is a dispute between two private parties. In the circumstances, the nature of the suit falls within the four corners of the case in Sri Venkatanarayanaswamy Deity's case1. The plaintiffs cannot be directed to go before the Deputy Commissioner for first getting a declaration that the suit properties are Devasthanam properties and then file a suit for recovery of possession of the properties from the alienees.
32. I have, therefore, no hesitation in holding that the view of the trial Court that the suit is not maintainable is wrong. Evidently the decision of the Bench in Sri Venkatanaraanaswamy Deity's case1 does not appear to have been cited before the learned Judge. I respectfully follow the decision of the Bench in Sri Venkatanarayanaswamy Deity's case1 and hold that the suit is not barred by Sections 63, 101 and 108 of Act XXII of 1959.
33. In the result, the judgment and decree of the trial Court are set aside. The appeal is allowed. The suit is remanded back to the trial Court for consideration of the other issues in the suit according to law. Costs will abide the result.