JUDGMENT :

PRAYER: This Appeal Suit is filed under Section 96 of C.P.C. against the judgment and decree dated 31.07.2015 passed in O.S.No.33 of 2011, on the file of II Additional District Judge, Thoothukudi.

Aggrieved over the dismissal of the suit filed for declaration and recovery of possession, the present appeal came to be filed.

2. For the sake of convenience, the parties are referred to herein, as per their own ranking before the Trial Court.

3. The brief facts, leading to the filing of this Appeal, are as follows:-

3.1. The suit properties were purchased on 23.11.1894 by one Poovalingam Pillam, Veerabhagu Pillai and Vallinayagam Pillai as trustees to perform the 5th day Mandagapadi of Kanda Sasti Dharma at Arulmigu Subramaniya Swamy Deity, Thiruchendur. One of the Huqdar (Trustee) viz., Veerabagu sold his 1/3rd share in favour of Vallinayagam Pillai. After his death, on 30.01.1906, Vallinayagam Pillai's wife sold 2/3rd share to the Poovalingam, first defendant in the suit. Second defendant is the son of the first defendant. First defendant has sold first item of the property in favour of the 4th defendant without any authority to sell the property. For sale of any property endowed to the deity, a permission from the Commissioner of Hindu Religious and Charitable Endowment Act is mandatory. Therefore, the same is not valid in the eye of law. The 4th defendant has sold the property to defendants 5 to 35. Those sales also not valid in the eye of law. The above said sales also made during the pendency of the suit in O.S.No.215 of 1996.

3.2. In respect of the 2nd item of the suit property, the first defendant has filed a Trust O.P.No.5 of 1996 to sell the property. Originally, the District Court has granted permission. Pursuant to the said permission, the property has been alienated to the third defendant. However, the order of the District Court in Trust O.P.No.5 of 1996 was challenged in C.R.P.No.1312 of 1996 and C.M.A.No.1680 of 1996. This Court, by its order dated 23.06.1999, set aside the order passed by the District Court and remanded the matter to the District Court to dispose of the Trust O.P.No.5 of 1996 as afresh. Thereafter, the said Trust O.P.No.5 of 1996 was dismissed by the District Court and permission sought for sale of the properties was also rejected. As the defendants have derived no title to the said property and the property has been specifically endowed for performing Kattalai at Arulmigu Subramaniya Swamy Deity, the suit has been filed for declaration and recovery of possession.

4. Defendants 1 and 2 have filed a written statement stating that the suit schedule properties was purchased only for the purpose of conducting 5th day of Kanda Sasti Mandagapadi Kattalai festival. According to them, the properties are enjoyed by the first defendant's family. Therefore, the first defendant has every right to deal with the property as per the title deed. According to them, the first defendant need not necessarily to seek permission from the Commissioner of HR & CE. However, with abundant caution has sought permission from HR & CE and therefore, the innocent purchaser should not be put to any hardship. The mere permission sought by the first defendant will not confer any right over the HR & CE department and plaintiff. According to them, defendants 5 to 35 are bona fide purchasers and they are not trespasser.

5. The first defendant is the third generation Manager of the Kattalai. The first defendant and his predecessors are continuously doing Kattalai without interception out of his own income derived from his profession. It is also stated that Civil Court has also no jurisdiction. The first defendant has also taken a further stand that the Temple has already filed a suit in O.S.No.215 of 1996 for permanent injunction not to alienate the property. However, the suit has been dismissed. Therefore, the present suit is not maintainable and hit by Order 2 Rule 2 of C.P.C. Hence, prayed for dismissal of the suit.

6. The 4th def