1. The plaintiffs for themselves and on behalf of 24 families of the Erumaikara Naicker community instituted a suit in the Court of the Subordinate Judge, Dindigul, to set aside the order of the first defendant viz., the Commissioner, Hindu Religions and Charitable Endowments, Madras, who in turn confirmed that of the Deputy Commissioner whereunder the department declared a temple known as "Dhroupathi Amman Temple " situate in West Car Street, Dindigul Town as a public temple. The case of the plaintiffs as is seen from the pleadings is that the temple was established about 330 years ago by the families known as Santhakula Sowmiya Narayana Gowraya community or Erumaikara Naicker community and that these families were living in different places, such as, Dindigul, Madurai, Quilon, Palani, Palghat, Nilgiris, Calicut, Cannanore, Mananthavadi, Mercara and Sivaganga. It is admitted that there was no dedication of the temple. But it is contended that at no time the temple or its precincts or its accessories wore built by subscriptions from the public. The plaintiffs are emphatic that the public did not contribute any amount towards the income of the said temple. According to the pleadings the temple was being maintained from marriage fees levied from the descendants of 24 families as above, Mahimai realised exclusively from them and the fine levied by the members of the community for any misconduct of its members. There are certain shops in and around the temple precincts and it is claimed that the rental income from the shops is added to supplement the income of the temple and they form a source for its maintenance and sustenance. They admit that in 1940 the Madras Hindu Religious Endowments Board attempted to interfere with the administration of the temple by appointing trustees thereto and by consent the offer of the then trustees of the temple to have such election of trustees periodically once in five years was accepted by the department. Ever since by rotation the trustees are being appointed by the Endowments Board Department. But in 1960 when attempts were made by the department to appoint an Executive Officer, the plaintiffs and defendants 2 to 4 filed an application under the provisions of Madras Act XXII of 1959 for a declaration that the temple is not a religious institution within the meaning of the said Act. That application was dismissed by the Deputy Commissioner and an appeal against that order of the Deputy Commissioner was equally unsuccessful. To set aside the said order the present suit was filed by the plaintiffs.

2. Considerable reliance was placed upon the observations made by this Court and the decision made in second Appeal No. 1037 of 1932, which was a case which arose on account of certain disputes between the trustees and the pujari of the temple. It is on these contentions the present action has been laid.

3. The first defendant in his written statement categorically maintains that the suit temple is not a private one, but a public one and bases his claim on the following features which are gathered from the pleadings: (1) There is no record or evidence to show who built the temple and when it was built. The origin and construction of the temple is not known. (2) There is nothing to connect the old 24 families with the present families, who claimed a right to be in management and administration of the temple. (3) Municipal tax has been exempted as a place of public religious worship under the provisions of the District Municipalities Act. (4) For a period of 22 years and more the trustees have been appointed by the Religious Endowments Board in exercise of the powers under Act XXII of 1959. (5) The temple has been contributing its share to the Board and maintaining what is popularly known as "Register" under Section 38 of the Act. (6) There is a regular audit by the department regarding the accounts of the temple. (7) The temple has been used as a place of public religious worship and as of right by members of the Erumaikara Naicker community and the general public. Commenting on the decision of this Court in S.A. No. 1037 of 1932 the defendants would state that there was no issue in that case whether the temple in question was a private or a public one. It was on such pleadings the parties went to trial.

4. The plaintiffs examined as many as 6 witnesses. The plaintiffs' witnesses fairly conceded that there was no deed of dedication. But P.W.1 would say that there were hundis inside the temple and that there were registers maintained as regards certain collections made by the temple from the public and that that register was not produced by him and that there is no restriction by the members of their community in the matter of offering public worship in the temple and ultimately he would say that he belongs to Erumaikara Community and that the temple belongs to the community. He did not mention in his deposition that he prohibited any member of the public from rendering pooja to the deities inside the temple. P.W.2 also maintains that the suit temple belongs to Erumaikara community. Though in the chief examination he says that only their community people offer worship in the temple, he would pretend in cross-examination that during his visit to the temple, he has not seen other community people in the temple. He says that he visited the temple only during some of the meetings and Navarathiri festival time. As regards the hundis the specific case is that there is no sign board in the hundis prohibiting persons of other community from putting monies into it. They can put money into the hundis P.W.2 would say that only his community people and none else would come to the temple. There is no sign board to indicate that other community people should not enter the temple. To a similar effect is the evidence of the other witnesses.

5. It is not claimed by Mr. Rangaswami Iyengar that any deed or dedication was filed in the trial Court to sustain that the temple originated as a private temple and continued to be so in spite of the manner and pattern by its user for 3 centuries and more. In the wake of this evidence the learned Subordinate Judge found that the documentary evidence let in and which he considered, such as, Exhibits B-o, B-10, B-11, B-12 and B-14 to B-20 were all documents which did not establish positively that the temple was originally founded by the community people and was dedicated to the Section of the community and for its benefit. In fact, he refers to the deposition and the evidence of P.Ws. 1 to 6, who are unable to say as to who founded the temple and who built the temple and when. In such a state of affairs the learned trial Judge was unable to accept the self-serving assertion of the plaintiffs that the temple is a private one. Whilst endorsing the views expressed by the learned Subordinate Judge, we like to add that there is also no proof that the plaintiffs or the successors of the 24 families of the community seem to have taken the initiative to put up the temple with the prakaram and instal the idols therein, the ordinary features which a Hindu temple would possess. From the pleadings it is seen that the 24 communities came from various districts or probably States, some of them from the State of Madras and some from the State of Kerala and the State of Mysore. The plaintiffs are unable to prove by acceptable evidence that they are the successors of such 24 families who seem to have constructed the temple centuries ago.

6. In the above perspective the other features and the incidents which are running with the temple for a considerable length of time, by usage, by conduct and by acceptance may immediately be noticed. Nearly 20 years ago the Religious Endowments Board interfered and wanted that a body of the trustees should be appointed to administer the affairs of the institution. The so-called members of the Community, who are in charge of the temple, did not protest against such interference by the Board. But, on the other hand, they agreed to the constitution of the said body of trustees and it is the said trustees, who are so constituted under the old Act, are functioning new as the body in charge of the affairs of the temple in question.

7. There is also the clinching factor about the existence of the 2 hundis in the temple to which the public were contributing liberally as spoken to by P.W.2 and this was not objected to by any of the members of the community or by the body of trustees who claimed to be the representatives of the Erumaikara Naicker community and the founders of the temple.

8. The third factor, which is again a strong circumstance against the view that the temple in question is a private temple, is that the public as of right were participating in almost all festivals and functions of the temple without any let or hindrance by those who claimed the exclusive right and privilege to so participate in it. As a matter of fact, though P.Ws. would claim that the public were not allowed to enter into the temple, some of the witnesses gave up this stand and admitted that the public were so allowed and they were allowed to contribute liberally to the hundials placed inside the temple premises. It is, therefore, clear that by long usage and acceptance the public were visiting the temple and performing poojas therein and participating in the processions and daily poojas and this by itself raises a very strong presumption against the private character of the temple. As was pointed out by the Supreme Court in Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors.

The question of intention to dedicate the place for the use of the public or of the user by the public being as of right is necessarily a matter for inference from the nature of the institution and the nature of the user and the way the institution has been administered .... once a long course of user by the public for the purpose of worship is established, and the fact of a separate endowment in trust for the deity is also proved, it is fair to infer that the institution must have been dedicated for user by the public unless the contrary is established --particularly when the character of the temple, its construction, the arrangement of the various parts of the temple and the nature of the deities installed there are similar to what obtains in admittedly public temples. Similarly, when user by the public generally to the extent to which there is a worshipping public in the locality is established, it is not unreasonable to presume that the user by the public was as of right, unless there are circumstances clearly suggesting that the user must have been permissive or that the authorities in charge of the temple have exercised such arbitrary power of exclusion that it can only be ascribed to the private character of the institution.

With respect, adopting the language of the learned Judges of the Supreme Court we do find in the instant case that the public have been visiting the temple and performing poojas therein and there are no circumstances suggesting that the user was permissive or that the authorities in charge of the administration of the temple ever exercised the right so as to exclude such members of the visiting public.

9. To a similar import is the decision of the Supreme Court in Goswami Shri Mahalaxmi Vahuji v. Shah Ranchhoddas Kalidas (dead) and Ors. . which runs thus:

The circumstances that the public or a section thereof have been regularly worshipping in the temple as a matter of course and they can take part in the festivals and ceremonies conducted in that temple apparently as matter of right is a strong piece of evidence to establish the public character of the temple.

10. In the light of the ratio of the decisions of the Supreme Court and the facts and the circumstances of this case we are satisfied that the institution in question does not bear the trappings of a private temple. On the other hand it is a public temple, as rightly pointed out by the trial Judge. The existence of Moolasthanam, Mahamandabam, Prakaram, idols of chief and other deities, uthsavamurthies, daily poojas, special poojas and procession during Navarathiri festival, worship by the local public belonging to different communities are all factors which positively give the undoubted impression that the temple is a public one.

11. No doubt reliance is made on the observations made by this Court in S.A. No. 1037 of 1932. That was a case where the trustees took action against the poojari for misconduct. In that the poojari accepted certains contributions from the temple without the trustees' knowledge. Apparently the trustee's found fault with the poojari and the poojari was dissatisfied with the decision of the Board of trustees. This was the subject-matter of the dispute which ultimately came up for decision by this Court. There was no point either directly or indirectly in issue in that suit regarding the public or private nature of the temple. It is by now well-established that a decision in an earlier action between the appropriate parties can either operate as res judicata or as binding authority on them only if the earlier action raises certain issues which are substantially the same as those raised in the later action. But if the subject-matter of the earlier action is totally different and if the circumstances under which the parties litigated are entirely distinct, then the resultant decision in that suit may not have an impact or bearing while considering the real issues that arise in another case and which bears on a subject which is totally alien to the one which was the subject-matter in the earlier suit. That is the position here. In S.A. No. 1037 of 1932 there was no issue as to whether the institution was a private or a public temple, whereas the only issue in the present action is whether the institution is a private temple or a public temple. The decision on this would depend on the evidence let in by the persons in management or control of that institution. Mere assertions by trustees of their right to punish a poojari on the assumption that he misconducted himself would by, itself not render the position clear, nor would it establish by itself the fact that the temple in question is a private one.

12. We have already traversed the oral and documentary evidence in this case as also the law as declared by the Supreme Court in the various decisions. We are satisfied that in the instant case there is clinching evidence to show that the institution is a public temple. Applying the principles and the well-known decisions to find whether a temple is a private or a public temple, we are of the view that the learned Subordinate Judge of Dindigul was right when he declared the institution as a public temple and confirmed the order of the first defendant.

13. In this view, the appeal fails and is dismissed. There will be no order as to costs.