Decided on September 23,1963



- (1.) The defendants are the appellants. The suit was brought by the first respondent-plaintiff (since deceased) under section 62 of the Madras Hindu Religious and Charitable Endowments Act (XIX of 1951), for setting aside the order dated 25th January, 1957, made by the first defendant Commissioner in Appeal No. 16 of 1955 and for declaring that the first respondent is the hereditary trustee of the 2nd defendant temple, which is situate at Palakol. It will be convenient, to hereinafter refer to Act XIX of 1951, as the H.R.C.E. Act. The plaintiff's case is that, ever since about 1682, when his ancestor Veluvali Sambhudu was the trustee, the trusteeship of the 2nd defendant temple has been in the family of the plaintiff, that no outsider has ever taken part in the management of the temple, that his grandfather's elder brother Ramayya shifted to Bapatla for practising as a vakil and therefore nominated his grandfather Achanna as trustee, that the trusteeship has thereafter devolved by usage upon his father and upon himself and that he is a hereditary trustee within the meaning of section 6, clause (q) of the H.R.C.E. Act. He applied to the Deputy Commissioner under section 57, clause (b) in O.A. No. 217 of 1953 to declare him as the hereditary trustee of the temple. But the Deputy Commissioner dismissed the application on 4th July, 1955, on the ground that the petition was not maintainable in view of the earlier order dated 29th October, 1935 (Exhibit B-29,) of the erstwhile Hindu Religious Endowments Board in O.A. No. 167 of 1935 declaring the and defendant to be a non-excepted temple. The plaintiff than appealed to the Commissioner under section 61, sub-section (1) of of the H.R.C.E. Act in Appeal No. 16 of 1955 and the appeal was dismissed on 25th January, 1957. Consequently, he instituted the suit on 16th April, 1957, under section 62 of the Act.
(2.) The defendants traversed the allegations of fact in the plaint that the plaintiff's ancestor Veluvali Sambhudu was a trustee of the temple in 1682 and the trusteeship continued in the family ever since. Their main defence was that, the suit was not maintainable, because the plaintiff's application in O.A.No. 167 of 1935 under section 84 (1) of Act II of 1927 for declaring the temple as an excepted temple was dismissed by the Hindu Religious Endowments Board on 29th October, 1935 on the ground that he was not the hereditary trustee (Exhibit B-29) ; and he filed O.P. No. 84 of 1936 in the District Court, Eluru, under section 84 (2) of Act II of 1927, which was also dismissed for default on 24th July, 1941 (Exhibit B-3). They further pleaded that the Government had notified the temple under Chapter VI-A of Act II of 1927 in G.O. Mis. No. 4750 dated 29th October, 1936, that the Executive Officer appointed in pursuance of the notification obtained delivery of the properties of the temple on 19th July, 1940, under the District Court's order in O.P.No. 28 of 1937, that trustees were also being appointed under that Act from time to time and that the plaintiff's right was barred by limitation as his cause of action had arisen even in 1935.
(3.) The learned Subordinate Judge found, on a consideration of the evidence, that the plaintiff's family had been trustees and managing the temple affairs for four generations and this was sufficient in the circumstances to show that they were, hereditary trustees. He also found that neither the decision of the Board in O.A. No. 167 of 1935 (Exhibit B-29) nor the dismissal by the District Court of O.P. No. 84 of 1936 (Exhibit B-3) operated as res judicata. His reason was that, under section 84 (1) of Act II of 1927, the Board had power to decide only the status of the temple and not the status of the trustee; and that as to the application made by the plaintiff under section 84 (2) of that Act, it was dismissed only for default and not on the merits. He further found that even after Exhibit B-3 the plaintiff continued to enjoy rights as hereditary trustee, that new trustees were sought to be appointed only in 1952 giving rise to a fresh cause of action for the plaintiff and that the present suit is not barred as the plaintiff could apply at any time under section 57 (b) of the H.R.C.E. Act. As a result of these findings, he decreed the suit and the defendants have therefore come up in appeal.;

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