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NATESA UDAYAR versus ADHAM

High Court of Madras

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Natesa Udayar v. Adham - S.A.No.1815 of 1989 [2002] RD-TN 339 (7 June 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 07/06/2002

CORAM

THE HONOURABLE MR. JUSTICE P.D.DINAKARAN

S.A.No.1815 of 1989

1. Natesa Udayar

2. Pichai Pillai

(for himself and representing

the villagers of Keelarasur

Village, residing at Melarasur

Village, Lalgudi Taluk, Trichy Dist) .. Appellants Vs

Adham

(for himself and representing

the villagers of Keelavalaivu

Udayar Community people

Of Melarasur Village, Lalgudi

Taluk, Trichy District) .. Respondent PRAYER: Against judgment and decree of the learned Subordinate Judge, Ariyalur, dated 23.12.1987 made in A.S.No.71 of 1986 reversing the judgment and decree of the learned District Munsif, Ariyalur dated 9.7 .1986 in O.S.No.257 of 1982

For Appellants: Mr.Vam Sridhar

for Mr.M.N.Muthukumaran

For Respondent: Mr.M.Vijaya Kumar

Mr.S.Sukumaran,

Spl.Govt.Pleader (HR & CE) assisted the Court

:JUDGMENT



Heard both sides.

2.1. The appellants in the above second appeal are defendants 3 and 4 in O.S.No.257 of 1982 laid for declaration, to declare that the plaintiff and the members of his family as one group are entitled to conduct exclusively Kudiraivahana Mandagapadi in Mariamman and Selliamman Temples in Mela Arasur Village and receive the 1/5th share in the prasadam and offerings and all honours besides their right to participate in the celebration of the festival on other days, and for consequential permanent injunction. 2.2. In paragraph 5 of the plaint, the plaintiff/ respondent herein states that they are entitled for the above declaration based on immemorial custom, usage and age old practice that prevailed among the members of the community of the village.

2.3. The defendants 3 and 4/appellants herein resisted the suit based on a sale deed dated 15.5.1972 with regard tot he right to conduct ‘ Mandagapadi’, a right of honour claimed by the plaintiff for celebrating the Kudiraivahana festival in the village temple.

2.4. Even though the learned District Munsif, Ariyalur, by decree and judgment dated 9.7.1986 made in O.S.No.257 of 1982, dismissed the suit holding that the plaintiff/respondent herein had not proved that he is entitled for the Kudiraivahana Mandagapadi, as well as the first honour in celebrating the said festival, on appeal, the learned Subordinate Judge, Ariyalur, by decree and judgment dated 23.12.1987 in A.S.No.71 of 1986 reversed the decree and judgment dated 9.7.1986 made in O.S.No.257 of 1982 and allowed and appeal. Hence, the above second appeal.

3. Mr.Vam Sridhar, learned counsel for the appellants/defendants 3 and 4 in the suit contends that the respondent/plaintiff is not entitled to seek a declaration of religious honour or privilege in a temple, which is independent to any right to office. In this regard, the learned counsel for the appellants/ defendants 3 and 4 invited my attention to Section 63(e) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as the ‘Act’), which reads as follows: “Section : 63 – Joint Commissioner or Deputy Commissioner to decide certain disputes and matters : - Subject to the rights of suit or appeal hereinafter provided, the Joint Commissioner or the Deputy Commissioner shall have power to inquire into an decide the following disputes and matters: (a) to (d) ......

(e) Whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what the established usage of a religious institution is in regard to any other matter.” 4. Per contra, Mr.M.Vijayakumar, learned counsel for the respondent/ plaintiff, placing reliance on the decision in ARULMIGU KALLALAGAR DEVASTHANAM Vs. SEETHARAMAN reported in 1990 (1) MLJ 97, contends that the claim of right to do mandagapadi in a mandapam by law, usage and custom is of civil nature and therefore, that claim can be entertained by Civil Court. 5. I have given careful consideration to the submissions of both sides. 6. In ARULMIGU KALLALAGAR DEVASTHANAM Vs. SEETHARAMAN reported in 199 0 (1) MLJ 97, the plaintiff sought for a declaration that they are entitled for the suit mandapam, possession of appurtenant 42 cents and to perform mandagapadi every year during Chitra festival. Therefore, the plaintiff in the said suit sought for declaration to perform mandagapadi on the basis of their alleged established right. But, in the instant case, the plaintiff/respondent herein had pleaded specifically in the plaint seeking a declaration as prayed to celebrate Kudiraivahana Mandagapadi as a matter of custom and usage. The plaintiff/ respondent herein has thus come with a specific case that they are entitled for the declaration as prayed for as an honour based on custom and usage, and therefore it cannot be disputed that their case is attracted under Section 63(e) of the Act.

7. Therefore, I am of the considered opinion that the dispute relating to such rights of the plaintiff/ respondent herein can be decided only in appropriate proceedings by the Joint Commissioner or Deputy Commissioner concerned, by exercising the power conferred under Section 63(e) of the Act, as it is not disputed by either party that the suit temple is governed under the provisions of the Act and the trustees have also been appointed to administer the affairs of the temple and properties under the provisions of the Act.

8. In the result, the second appeal is allowed, however without prejudice to the right of either party to approach the Joint Commissioner or Deputy Commissioner concerned for appropriate relief, if they are so advised, and in which event, the Joint Commissioner of Deputy Commissioner shall exercise the power conferred under Section 63(e) of the Act and pass appropriate orders after hearing all necessary parties. No costs. Consequently C.M.P.No.7718 of 2000 is closed.

7.6.2002

Index: Yes

Internet :Yes

Sasi

To

1. The Subordinate Judge,

Ariyalur (With records)

2. The District Munsif,

Ariyalur (With records)

3. The Section Officer

V.R.Section, High Court,

Madras.

Sasi

P.D.DINAKARAN,J.

S.A.No.1815 of 1989




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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