076-NLR-NLR-V-05-CHANGARAPILLA-v.-CHELLIAH.pdf
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1902.
February 13.
CHAXGrARAPTLLA v. CHELLTAH.D. C., Jaffna, 1,966.
Possessory suit— Action by manager of Hindu temple.
Bonser, C.J.—If the manager of a Hindu temple has the controlof the fabric' of the temple and of the property belonging to it. hispossession is such as would entitle him to maintain a possessory suit. ♦Ahamado Lebbe v, Semberem, 3 Lorensz. 28 disapproved; Mascoreen v.Genye, Ramanathan, 1862, p. 196. and Tissera v. Costa. 8, S. C. C. 193,explained.
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HE plaintiff, claiming to be the manager of the KandaswamiTemple at Nallur and its property, complained that the
defendant unlawfully kept him out of possession of a labd calledPandaranpoddu Valavu from the 15th August, 1899. His actionwas filed on the 23rd December, 1899. He prayed that, as managerof the said temple, he be declared entitled to possess the said land,and that defendant be ejected therefrom.
The defendant denied plaintiff’s right to be manager of thesaid temple, and pleaded that he was a lessee under one Mr.Kandaiya, the lawful manager of the said temple.
The District Judge found, after hearing all the evidence, thatplaintiff possessed the land in dispute, for more than a year and aday before the action was instituted, as manager of the temple, andthat defendant ousted him on the 15th August, «1899. He gavejudgment for plaintiff.
Plaintiff appealed.
Rdmandthan, S.-G., and Samyayo appeared for appellant.
Domhorst and H. Jayawardene, for respondent.
The following authorities were cited in the course of thenrgument: Grotius, 11., 2, 7; Mascoreen v. Genys, Rdmandiihan,1862, p. 195; Miguel. Perera v. Sobana. 6 S. 0. C. 61; AyaturaiAiyar v. Navaratnasingam, 7 'S. G. C. 27; Duncan v. Kiria,Rdmandthan, 192; MacOarogher v. Balter, Wendt, 253; Tisserav. Costa, 8 S. Cv C. 193; Voet, VI., 1, 29; Ahamado Lebbev. Semberem, 3 Lorenz, p. 28; Alim Saibo v. Cadersa Lebbe, 9
S.C. C.4.
13th February, 1902. Bo.vseh, C.J.—
This is an action brought by a person who is described as themanager of the Hindu temple, complaining that he has beenforcibly dispossessed of the property and asking to be restored to
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possession, in a possessory suit. The District Judge gave him the I90:"relief he sought, and the dispossessor has appealed to this Court f'ebmart/13-
The only point argued before us was as to the competency of Bonskb, C.Jthe plaintiff to maintain the action. It was urged that whateverhis duties and rights were, and whatever his powers were, he did,not claim to be the owner of the property ut dominux, and thattherefore he could not maintain this action.
Now we think that that is too narrow a view to take of the require-ments of a possessory action. The remedy given by such anaction is a most beneficial one. and it seems to me that the Courtshould not seek to narrow its operation, but rather to enlarge it ifit can do so consistently with principle. No doubt in anordinary case the person who seeks to maintain such an actionmust be a person who claims a beneficial- interest in the property,and it was laid down by Voet that persons such as tenants ofhouses, coloni, agents, .and bailiffs had not such an interest in theproperty as entitled them to maintain the action. But even that rulewas subject to exceptions in the case, of absent owners, whose agentsand bailiffs were allowed to maintain an action for the purpose ofprotecting their masters’ property. Otherwise irreparable damagemight be done, and the right of restoration to possession be lostowing to the absence of the owner. In the case of propertybelonging to churches and religious. bodies, .it is distinctly, laiddown in Voet, VI, 1, 29, that persons whom he calls cconomi andother like officers 'eiyi recover property belonging to churches orreligious institutions by an action rei vindicatio, and if that is so. itfollows a fortiori that they can recover it- bv. the lesser remedyofa possessory action.
As far back as 1858 it was. decided by this Court that the mohideenor principal manager or trustee of a mosque, who had the manage-ment- in trust for the mosque, was entitled to maintain an actionagainst those who turned him out of possession. That ease isreported in 3 Lorenz, />. 28. There is indeed a later case, of 1880,where my predecessor and Mr. Justice Dias held that the officiatinghigh priest of a mosque was not entitled to maintain a. possessoryaction, but it 3eems to me that that case was decided on too narrowa ground. It may have been rightly decided upon the facts, butthe Court held the broad proposition that, inasmuch as hispossession was not avowedly ut clominvs (because he claimed that hehad possession on behalf of the mosque and the congregation of themosque), therefore it followed as a matter of course that his actionwas not maintainable. But that judgment is inconsistent withthe judgment to which I have referred, but which was not thencited, and is not supported by the Roman Dutch authorities which
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1®02‘ we have been able to consult. It seems to me that each case must-February 13.UpDn j^g facts. The only case which was cited apparently
Boksbb, C.J. to the Court in that last case was the case of Tissera v. Costareported in 8 &. C. C. 193, where it was held that a person calledthe muppu of a Roman Catholic church was not entitled tomaintain an action. It seems to me that that case was rightlydecided on the facts. The muppu, who appears to be a kind ofbeadle, has no control over the fabric of the church, and was onlya caretaker entrusted with the custody of certain movables, avery subordinate servant, whose duty it was to keep the churchclean, but who had no sort or kind of possession either on behalfof himself or anybody else.
In this present case it seems to me that if the plaintiff, who iscalled the manager of the temple, has the control of the fabric ofthe temple and of the. property belonging to it, he has suchpossession as would entitle him to maintain an action, eventhough he makes no pretence of claiming the beneficial interestof the temple or its property, but is only a trustee for thecongregation who worship there. If the parties are unable toagree whether or not the plaintiff does fall within the categoryI have just referred to, the case, must go back for. the DistrictJudge to take evidence on the point.
Wendt, J.—
I am of the same opinion, and agree with the Chief Justice inthinking that a remedy like that of a possessory action ought tobe beneficially and liberally construed, and not- restricted undulyin its . operation. The principle of possession ut dominus whichwas laid down in the caseof Tissera v. Costa has been, I think, too
far extended in some oftheother caseswhich havebeen cited
to us, without sufficiently attending to the difference in thecapacity of the plaintiffs as disclosed by the facts of the differentcases.
In the present case, I think, evidence should be taken as to theexact nature of the interest which the plaintiff has in the templeproperty. Our judgmentinthe presentcase is inaccordance
with the decision of this Court in Mascoreen v. Gettys reportedin Rdmanatfian, 1862, p. 195, where the Court referred to certainauthorities as establishing that precarious possession on the partof the defendant was enough as against strangers, and that posses-sion virtute officii, suchasthat of theplaintiff inthat case,
a Roman Catholic priest, came under the category of precariouspossession.
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It would seem that the word not in the third line from the end 1902.of the report is a mistake, which just reverses the sense of what February ISthe Court intended to say. The concluding part of the judgment. Wendt, J.as I have ascertained from an examination of Chief Justice SirEdward Creasy’s draft, should run as follows:" A passage in
“ Grotius showed that precarious possession is not enough as“ against the true owner, but it is enough as against strangers.
" Another passage cited from Bart’s Tracts establishes that posses-“ sion virtute officii is precarious possession. Assuming then that“ the defendant is right in his assertions as to the nature of“ plaintiff's possession, the plaintiff can maintain this action“ against a stranger, which the defendant has proved himself‘ to be.”
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