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2021 Supreme(Mad) 3260
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N.Sathish Kumar, J.
Subramanian (Died) and ors. – Appellants
Versus
Veermalai (Died) and ors. – Respondents
A.S.(MD).No.37 of 2005 & Tr.As.(MD).No.159 of 2010
Decided On : 22-03-2021
Advocate Appeared:
For the Appellant : Mr.K.Govindarajan for M/s.Sarvabhauman Associates
For the Respondent: Mr.T.M.Hariharan, Mr.K.P.Narayanakumar
Additional Government Pleader, Mr.J.Gunaseelan Muthiah, Additional Government Pleader, Mrs.J.Maria Roseline
Headnote:
Application - Lands - Dispute - Decreed - Land totally to an extent of 93.24 acres appears to have been dedicated to deity - Persons numbering about 84 persons in a particular community was given service enam for rendering services to Temple - Lands have been granted to Chief, who used to employ several other members to assist him while rendering services to deity - Entire lands were in custody of Chief (Mason), namely, plaintiff and prior to him, his father, who used to lease out lands to third parties and get aggregate income from all lands and distribute same among Pattadars, who rendered their services to deity during festival times - Plaintiff and prior to him his ancestors, who were Chief Kothans, were managing and controlling affairs of all other Kothans and also doing services to deity - Plaintiff had filed an application in O.A.Nobefore Deputy Commissioner and same was allowed - Challenging same, an appeal was filed before Commissioner by one - Commissioner has held that he has no authority to decide rival claim between the parties and directed them to approach Civil Court - Whether such rights have been acquired by way of hereditary or by way of election, is to be decided in this list – Held, D.W.4, who examined on side of Temple in his evidence has stated in paragraph No.5 of chief examination that there is no evidence with regard to conduct of election every year - He has further stated that only on behalf of Pattadars, one person will receive honour and person, who receives such honour on behalf of the others will sign in records - Above fact will clearly indicate that only to render benefits and share paddy and other agricultural produce, one signature is being obtained in Register and therefore, merely on the basis of above i.e., signature found in Register, one cannot claim that there is a right accrued by way of hereditarily - It is stated that though consequential relief is not claimed when suit is filed challenging action of authority under old Act, suit cannot be non-suited - But fact remains that person, who claims right exclusively by way of custom, usage and hereditarily without seeking consequential relief cannot maintain the suit against persons, who are having equal rights in entire lands and recognized as service, particularly, without making them as parties - Accordingly, all points are answered - Both these Appeals stand allowed.
JUDGMENT :
These two appeals arise out of the common judgment of the trial Court in O.S.No.257 of 1995 and O.S.No.18 of 1999, dated, 29.10.2004. A.S.No.37 of 2005 is filed as against the judgment and decree of the suit in O.S.No.257 of 1995, on the file of the Sub Court, Kulithalai. A.S.No.159 of 2010 is filed as against the judgment and decree of the suit in O.S.No.18 of 1999, on the file of the Sub Court, Kulithalai.
2. The parties are referred to as per their ranking before the trial Court.
3. The brief facts leading to filing of A.S.No.37 of 2005 are as follows :-
3.1. The land totally to an extent of 93.24 acres appears to have been dedicated to Rathinagireeswarar deity. The persons numbering about 84 persons in a particular community was given service enam for rendering services to the Temple. The lands have been granted to the Chief Kothan, who used to employ several other members to assist him while rendering services to the deity. The entire lands were in the custody of the Chief Kothan (Mason), namely, the plaintiff in O.S.No. 257 of 1995 and prior to him, his father, who used to lease out the lands to the third parties and get the aggregate income from all the lands and distribute the same among the Pattadars, who rendered their services to the deity during the festival times. The plaintiff and prior to him his ancestors, who were the Chief Kothans, were managing and controlling the affairs of all other Kothans and also doing services to the deity.
3.2. As there was some dispute arose, the plaintiff had filed an application in O.A.No.60 of 1981 before the Deputy Commissioner and the same was allowed. Challenging the same, an appeal was filed before the Commissioner by one Shanmugam. However, the Commissioner has held that he has no authority to decide the rival claim between the parties and directed them to approach the Civil Court. Challenging the same, a suit in O.S.No.257 of 1995 was filed before the Sub Court, Kulithalai, to declare that the plaintiff as a Chief Kothan and also to set aside the order of the Commissioner / the third defendant in A.P.No.30 of 1987 by confirming the order of the learned Deputy Commissioner and for further relief.
4. The first defendant has filed a written statement admitting the fact that 84 people were given permission to serve as Kothans. It is his contention that the plaintiff has never been in possession and enjoyment of the entire property by way of usage, custom and honour and among 84 persons, one person will be elected unanimously for doing their services. The first defendant was also unanimously elected for doing the kothu service from Chithirai festival to the next Panguni of Yuva Tamil years. It has been the practice of Pattadars to elect the leader once in a year and also to do the service only by electing a leader by majority of Pattadars. The elected leader was entitled to receive honour from the Temple and also on behalf of other Pattadars. This practice of electing a leader is a long continuous practice, which is prevailing from ancient times and it has been followed and adopted by all the Pattadars. The plaintiff is also one of the Pattadars and he is not a Chief Kothan and there is no hereditary right to receive the Temple honour and to manage the kothu services.
5. The Temple Authorities have filed a written statement admitting the fact that the plaintiff, who is called himself as a Chief Kothan is one among 84 persons employed for rendering services to the said deity. It is submitted that there is no special occasion to give temple honour to the Chief Kothan on behalf of the other Pattadars. The prasadham has been given to one person. Hence, he prayed for dismissal of the suit.
6. A suit in O.S.No.159 of 1995 was filed before the learned District Munsif, Kulithalai, by the appellant herein to declare that the Pattadars were jointly entitled to do the service manyam given in 'A' Schedule by electing one among them as a leader and to all other consequential reliefs.
7. It
