1. These two appeals arise out of one common judgment rendered by the Subordinate Judge of Ramanathapuram in Madurai, in O.S. No. 65 of 1969 and O.S. No. 124 of 1969. O.S. No. 65 of 1969 was decreed, while O.S. No. 124 of 1969 was dismissed. As against the decree in O.S. No. 65 of 1969 A.S. No. 710 of 1981 has been filed and as against the decree passed in O.S. No. 124 of 1969 A.S. No. 828of 1983 has been filed. O.S. No. 65 of 1969 was filed by one K.T.T. Ramalingam Chcttiar against Muthuramalingam Pillai and seven others, the eighth defendant being the Commissioner, Hindu Religious and Charitable Endowments, Madras, while O.S. No. 124 of 1969 was filed by the said Muthuramalingam Pillai and six others against the said K.T.T. Ramalingam Chettiar, the plaintiff in O.S. No. 65 of 1969and that suit was filed for recovery of possession and for damages. Both the appeals can be disposed of in one common judgment. In both the suits the case of the respective parties is the same. For convenience sake, as the trial Judge has done, the plaintiff in O.S. No. 65 of 1969 will be hereafter referred to as plaintiff and the defendants in that suit as the defendants.
2. Now the case of the plaintiff in brief is that, the suit temple which is known as Pazhikkanjia Vinayagar temple at Sivakasi is a public temple. It was founded by Ayira Vysya Kasukara Chettiars community. It was managed and administered by the plaintiff and their predecessors. The defendants and their predecessors were only Poosaries in the temple and they had nothing to do with the ownership of the temple. The defendants filed an application before the Deputy Commissioner, Hindu Religious and Charitable Endowment Department for declaration that the suit temple is a private temple and that was ordered. The appeal preferred before the Commissioner was dismissed. The plaintiff filed statutory suit under Section 70 of the Hindu Religious and Charitable Endowments Act for setting aside that order and to declare the suit temple as a public temple.
3. The defendants contended that it is a private temple belonging to the family of the defendants. They also contended that the suit temple was constructed by their ancestors-Muthulinga Othuvar in his own land and the idol was consecrated as a family deity. The defendants and their ancestors have been in possession and management of the temple throughout and they are not mere Othuvars.
4. On consideration of the evidence adduced in the case the trial court held by its judgment dated 30.11.1971 that the suit temple is a private temple. Accordingly it decreed the suit O.S. No. 124 of 1969 filed by the defendants and dismissed the suit O.S. No. 65 of 1969 filed by the plaintiff.
5. The matter was taken on appeal to this Court and in that appeal, observing that the trial court has not considered properly some of the relevant evidence in the case set aside the said judgment of the trial court and remitted it back to the. trial court for fresh disposal.
6. The trial court by its judgment dated 29.11.1980 in reversal of its earlier judgment, held that the suit temple is a public temple as pleaded by the plaintiff and not a private temple as contended by the defendants. Accordingly it decreed the suit O.S. No. 65 of 1969 and dismissed the suit O.S. No. 124 of 1969. As against this, now the defendants have filed these two appeals.
7. Mr. W.C. Thiruvengadam, learned Counsel appearing for the appellants-defendants would contend that the finding of the trial court is quite contrary to the evidence in the case. He would lay much stress on Ex.82 filed by the defendants. This is a photo of a Silasasanam of the year 1669. As per the said Silasasanam the temple has been built by Muthusamy Othuvar, the ancestor of the appellants.
8. It is not in dispute that there is such a Silasasanam in the temple. But however it is argued for the plaintiffs that even if this Silasasanam is a genuine one that alone will not prove that the temple is a private one. No doubt this Silasasanam would show that the temple has been built by Muthusamy Othuvar, but the question is whether he intended it to be a private temple or public temple. In this connection it may be noted that in South India excepting Malabar, it is well established now by court decisions that the presumption is that a temple is a public one and whoever claims the temple to be a private one he must have to prove it. It has been so held by the Privy Council in Koman Nair v. Achuthan Nair A.I.R 1934 P.C. 230 : 67 M.L.J. 788 : I.L.R. 58 Mad. 91, and by a Division Bench of this Court in Sri Chidambares-wara Sivagami Ambigai Temple v. The Commissioner H.R. & C.E., Madras .
9. As against this the learned Counsel for the defendants cited a decision of this Court in Soundharathammal v. The Thiruchirapalli Mahasuruli Alaya Bakthargal Madya Sangam , wherein, while considering whether a Samathi is a public place of worship or private place of worship it is stated that before a temple or shrine or other holy place can be accepted and recognised as a place of public religious worship there must be evidence of dedication of the same for the benefit of the Hindu Community or a section thereof. This being single Judge decision and the controversy is with regard to a Samathi and not a temple this decision will not help the plaintiff.
10. One important thing that has to be borne in mind is that admittedly the temple has been built in a poramboke land. If the builder of the temple wanted it to be a private one it is unlikely that he would have built it in a poramboke land. Therefore the fact that the building is in a poramboke land gives an indication that quite possibly the builder wanted to dedicate the temple to the public.
11. Mr.Thiruvengadam would however rely on a decision in E. Subbiah Pillai and Anr. v. The Commissioner H.R & C.E. (Admn.) Dept, Madras 77 L.W. 94, wherein it has been held that only because the temple is situatedon a Natham it cannot be called a public temple. There is vast difference between Natham and a poramboke land. In that case the temple was built not only adjacent to the plaintiffs' house but the plaintiffs had access and entrance to the temple directly from their house. Further in our case too just for the reason the temple is built on a poramboke land we do not hold that it is a public temple, but, as stated above, this is a strong circumstance probabilising that it could be the intention of the builder that the temple was to be a public temple.
12. Then even if at the time of building of the temple the builder had no intention that the public should worship there, it could be that in the course of time the temple had become a public one by uninterrupted user by the Public. In a Full Bench decision in Subramania Aiyar and Ors. v. Pujari Lakshmana Goundan and Anr. A.I.R. 1920 Mad. 42 : 1919 M.W.N. 899, a temple built on a private land and exclusively managed by the founder and his family, was by inference from the acts of the founder and his family members, held that the temple had been dedicated to the public.
13. The next document the appellants would rely on is Ex.832 which is called Cadman leaves written by one Muthusamy Udayar on 11.1.1965. Therein it is written that, From this it is argued that as per Ex.832 the suit temple has been established by the above said Muthusamy Othuvar. That may be so, but this document does not show that the temple was a private temple. It reads that the writer had been doing pooja and service to the deity.
14. The next evidence for the appellants is the oral testimony of first defendant as D.W.1, and D. Ws.2 and 3. The evidence of first defendant (D.W.1) is an interested one. Therefore the only evidence that can be said to be independent is of D.Ws.2 and 3 who would say that the public do not worship in the temple.
15. As against this on the side of the plaintiff, Mr. T.R. Srinivasaraghavan, learned Counsel for the respondent-plaintiff would submit that thedefendants' family had been the poosaries of the temple and they were not the owners. In support of their case the plaintiff would first rely on a grant of maniam Ex.A-14, dated 9.10.1929 by the Government of Rs. 5 and and as 4 only for the purpose of pooja. This grant is in favour of the temple and not in favour of any individual, not to speak of any of the defendants' ancestors. From this it is submitted by the plaintiff that the Government believed the temple to be or treated it as a public temple.
16. However it is argued on the side of the defendants that only because the Government has granted maniam it cannot be said to be a public temple since there is nothing preventing the Government granting maniam to a private temple also. In this connection the learned Counsel would rely on a Division Bench ruling of this Court in Thanumalaya Perumal Mudaliar and Ors. v. The Commissioner H.R. & C.E. (Admn.) Department, Madras and Ors. , wherein it is stated that, The fact that at one particular point of time a small extent of two acres and odd was additionally granted to the deity by some strangers cannot alter the nature of the initial grant or the character of the institution from a private one to a public one.
But in the instant case there is no question of any strangers granting anything to the deity but it is the Government that has granted the manibam. Therefore the said decision would not help the defendants. I agree with the trial court that the grant of maniam by the Government is one of the strong circumstances that would go to show that the suit temple could be a public one.
17. Sivakasi Municipality also has treated the suit temple as a public temple inasmuch as it is not in dispute that it has exempted the suit temple from payment of tax. As per Ex.A-20 the municipality has levied tax on the properties of the temple and the owner of the property has been described as Pazhikkanjia Vinayagar temple, and Ex.B-21 is a receipt for payment of tax for the properties of the temple and there too the owner has been described as Pazhikkanjia Vinayagar temple.
18. Exs.A-1 to A-9 are statements recorded by the Revenue Inspector in connection with the said temple, given by the residents of Sivakasi and some of them are of 1896 and the others are of 1897. A reading of these documents would show that the residents have complained about the poosari in the temple i.e. Muthusamy Othuvar stating that he was not properly doing poojas and was misusing the funds of the temple properties. Therein the residents have stated clearly that the temple had been built by the people of Chettiar community and now Muthusamy Othuvar was doing pooja in the temple but he was not doing pooja properly. The genuineness of these documents is not in dispute and these being ancient documents they have great evidentiary value.
19. Ex.B-14 is an order dated 31.8.1890 issued by the Tahsildar upon a complaint made by one Arunachalam Chettiar against Muthusamy Othuvar in connection with the temple properties, and in that order the Tahsildar has stated that it appeared that Muthusamy Othuvar had not appropriated to himself any of the temple properties and therefore the complaint need not be pursued further. This is an indication that it did not appear then that Muthusamy Othuvar claimed the suit temple as his family temple.
It is not in dispute that this temple mentioned as the boundary is the suit temple. Therefore as per the mortgage deed Ex.A-26 which is also as early as of the year 1874 the suit temple has been stated to be belonging to the Chettiars.
21. Ex.B-8, dated 28.7.1917 is a partition deed among the then members of the defendants family. Therein they have referred to the private properties and poosari right in the suit temple. No mention of the temple or temple properties has been made as their private property. This only shows that according to the members of the defendants' family then the temple was not a private property belonging to their family.
So the defendants' ancestor has been described as one who did service in the temple. To this effect is Ex.A-12 also which is a cancellation deed cancelling Ex.A-11. If really the said defendant's ancestor was the owner of the temple he would not have been described as a 'panividaidhar'. This description 'panrvidaidhar' is incompatible with the temple being a private one belonging to the defendants' family.
24. The first defendant himself as D.W.1 has categorically admitted that people of all communities go to the temple. He would also say that he used to do pooja daily two times and there will be poojas on festival days, and there will be pooja on the Vinayaga Chadhurthi day. In the face of this evidence of the first defendant himself the evidence of D.Ws.2 and 3 that the public does not go to the suit temple to worship has to be rejected as untrue.
25. The plaintiff besides himself as P.W.1 has examined P.Ws.2 to 9. All of them have uniformly deposed that the suit temple is a public temple and the public go there and worship without any interruption, and no permission to worship in the temple is needed for anybody. This evidence of P.Ws. has not been seriously challenged in the cross examination.
26. Considering the circumstances discussed above, I am clearly of the view that the suit temple is a public temple and not a private temple as decided by the trial court.
27. It is next argued by the learned Counsel for the appellants-defendants that in the plaintiffs suit i.e., O.S. No. 65 of 1969 eighth defendant is the Commissioner, Hindu Religious and Charitable Endowments, Madras and to him no notice under Section 80, C.P.C. has been given and for this reason the suit is incompetent and is liable to be dismissed. In this connection the learned Counsel cited a Division Bench decision of this Court in The Executive Officer, Arulmigu Rangana thas swami Devasthanam, Srirangam v. His Holiness Srivan Satagopa Sri Vedantha Desika Yathindra Maha Desigan . But in the very same judgment in paragraph 13 it has been clearly held that the point regarding notice under Section 80, C.P.C. can be raised by the Government or Public Officer against whom the suit is filed and not by a third party. Therefore this contention of the learned Counsel has no merit.
28. The result is, both the appeals are liable to be dismissed. I order accordingly. In both the appeals the appellants shall pay costs to the respondents.