The Judgment of the Court was delivered by

Seshachelapathi, J.

2. This is an appeal against the judgment of the Subordinate Judge, Narasapur in O.S No. 84 of 1953.

3. The plaintiffs who are appellants before us were appointed as trustees of Sree Sarveswaraswamivari temple at Kakaramalli by the Asst. Commissioner, Hindu Religious and Charitable Endowments, Eluru by his order dated 2-9-1951. They instituted the present suit for a declaration that the properties set out in schedules A, B and C attached to the plaint belong to the temple, for delivery of possession of the suit properties, for mesne profits accounts and other ancillary reliefs.

4. Defendants 1 and 2 claim to be the hereditary archakas of the temple. Defendants 3 to 5 are stated in the plaint to be the lessees of defendants 1 and 2. The 3rd defendant, however, filed a written statement claiming that about 3 years ago he paid Rs. 4850/- to the defendants 1 and 2 for the sale of items 5 and 6 of A schedule and had been since then in possession of those items as purchasers. Defendants 4 and 5 are the lessees of certain ether items of A schedule. The 6th defendant claims to be the mortgagee of half of items 3 to 6 of A schedule under an instrument of mortgage executed by the 1st defendant. Defendants 1 and 2 filed a written statement alleging that items 3 to 6 of the plaint A schedule and items 1 of the B schedule did not belong to the temple, but that they were the personal properties of the archakas. As regards, items 1 and 2 of the ‘A’ Schedule, defendants 1 and 2 allege that they were granted to their ancestor burdened with service, that they had been in possession thereof in their own right from time immemorial, that the kudivaram rights in those properties were vested in them, and that in any event they cannot be evicted without making a proper and fair provision for them to cover the expenses of the daily worship and Naivedyam in the temple and for the remuneration of their services. Defendants 4 to 6 were set ex parte at the trial.

5. On the pleadings, the learned Subordinate Judge settled as many as 20 issues, but for the purpose of this appeal only issues 3 and 4 are relevant. They are in these terms:—

3. “Whether this Court has got jurisdiction to entertain the suit?

4. “Whether the jurisdiction is barred by Sections 87 and 93 of H.R and C. Endowments Act?”

6. The above two issues were taken up for trial and consideration by the learned Subordinate Judge as preliminary issues. He held that this Court had no jurisdiction to try the suit as it was barred under Section 93 read with Section 87 of Madras Act XIX of 1951. On his findings on the two preliminary issues, he dismissed the suit with costs. Hence the present appeal.

7. We are of opinion that the decision of the learned Subordinate Judge cannot stand. Section 9 of the Civil Procedure Code provides that the Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. In Secretary of State v. Mask & Company . A.I.R 1940 P.C 105. the Privy Council observed that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly implied. To the same effect are the observations of the Madras High Court in the Secretary of State for India v. Jagannadham . I.L.R 1941 Mad. 850 F.B.. The learned Subordinate in this case has held that the present suit is barred under Section 93 read with Section 87, of Act XIX of 1951. Section 93 of the Act is as follows:—

“No suit or other legal proceedings in respect of the administration or management of a religious institution or any other matter of dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law except under, and in conformity with, the provisions of this Act.”

8. It will be seen, as correctly observed by the learned Subordinate Judge, that the Section has two limbs. The first limb interdicts suits or other legal proceedings with respect to the administration or management of the religious institution. The second limb enacts an embargo on suits and legal proceedings on any other matter in dispute for the determination of which a provision had been made in this Act.

9. Section 93 referred to above has replaced Section 73 of Act II of 1927, as amended by Act X of 1946. Prior to the amendment of Section 73 by Act X of 1946, there was a difference of judicial opinion as to whether the expressions “except as provided by this Act” mean only “contrary to the provisions of this Act”, or they were meant to lay down a positive and substantive provision. In Vythilinga Pandara Sannadhi v. The Temple Committee, Tinnevelli Circle, Curgenven and Cornish, JJ., constructed the expressions “except as provided by this act” as meaning only “contrary to the provisions of this Act”. In Vythilinga Pandara Sannadhi v. Ranganadha Mudahar, Ramesam, O.C.J, and Venkata Subbarao, J., dissented from that view and held that there was no reason to construe the terms as being confined in their application to the procedure governing the suits and they were intended to lay down the substantive law also. This controversy has now been laid to rest by the addition of the further expressions “and in conformity with the provisions of this Act.”

10. The learned Subordinate Judge has held that the present suit is hit at by both the limbs of Section 93. He has taken the view that a suit for the recovery of the properties of the temple is one in respect of the administration and management of the temple. We are unable to agree. In Vythilinga Pandara's case . A.I.R 1945 Mad. P. 101., Ramesam O.C.J, pointed out that suits merely to recover money found due by the defendant on the taking of the accounts and to recover the property belonging to the trust, but in the possession of defendant and to recover damages for a tort committed by the defendant would always be maintainable under the general law. In Kothandarama Swami Temple v. V. Ayyar, Leach, C.J, and Shahabuddin, J., held that the suit filed by the trustees to recover money due to the temple and secured by a charge of immovable properties, did not come within the categories of Section 73(1) of Act II of 1927 and was not one for the administration and management of religious endowments. Section 93 has retained and reproduced the bar of suits enacted in sub-section 4 of Section 73 of Act X of 1946. It has been held repeatedly had that section 73 of Act II of 1927 as amended is similar in scope to Section 92 of the Code of Civil Procedure. In Abdul Rahim v. Abu Mohomed Barkat Ali . 55 Cal. P. 419., the Privy Council held that a suit for a declaration that a property belongs to a wakf can be maintained without the consent of the Advocate General, as the relief claimed in such a suit was outside the scope of clauses (a) to (g) of Section 92 C.P.C In Singam Atyangar v. Kasturiranga Aiyangar . 1937 II M.L.J P. 931., in interpreting Section 73(3) of the old act Venkatasubbarao and Newsman, JJ., held that a suit claiming for reliefs against third party will not fall within the purview of administration and management and, therefore, was not barred under Section 73(3) of the Act. We are unable, therefore, to agree with the view of the learned Subordinate Judge that a suit filed by the trustees for declaration that certain properties belong to the temple and to recover the same is not a suit in respect of the administration and management of the temple, so as to attract the embargo enacted in the first limb of the Section.

11. The learned Subordinate Judge has held that Section 87 of Act XIX of 1951 provides a machinery for the decision or determination of the dispute involved in the present suit and that being so, the second limb of prohibition of suit enacted in Section 93 is attracted in the instant case. Section 87 which has replaced Section 78 of the Old Act provides that where a trustee or executive officer of a religious institution, is resisted in or prevented from obtaining possession of religious institution, or of the records, accounts and properties thereof by a trustee or servant of the religious institution who has been dismissed or suspended from his office, or is otherwise not entitled to be in possession or by any person claiming or deriving title from such trustee, office-holder or servant, not being a person claiming in good faith to be in possession on his own account or on account of some person, may apply to the 1st class Magistrate having appropriate jurisdiction and the Magistrate shall on application by and on the production of the order of appointment of the trustee or executive officer or other persons referred to in clauses (b) and (c) of Section 87(1) and a certificate by the Commissioner, direct the delivery of the properties and the records etc.

12. The Section further provides that any person aggrieved by any order under this section may file a suit for establishing his title to the property in question.

13. The learned Subordinate Judge placing reliance on the decision of the Madras High Court in Dandaiah v. Venkatarama Dikshitulu, held that, inasmuch as the archaka is an office-holder or a servant within the meaning of section 87, the proper action that the trustees in this case should have taken was to have instituted proceedings under Section 87 of the Act.

14. It is not as if that in the present case the trustees did not purport to take action under section 87 of the Act. They filed a petition for the issue of a certificate under Section 87 of the Act. The present defendants who were impleaded as respondents to that petition pleaded that the Deputy Commissioner had no jurisdiction to grant a certificate as they denied the title of the temple. The petition, therefore, was withdrawn and dismissed on 17-5-1952.

15. In the first place, we may point out that having taken up the position that the Deputy Commissioner had no jurisdiction to entertain the petition for the grant of a certificate under Section 87 and on that objection having had the petition dismissed, it is not now open to the defendants to contend that the civil court has no jurisdiction to try the suit and the recourse must be had to the procedure prescribed in Section 87 of the Act. In the second place, Section 87 itself provides that a party aggrieved by any decision under that section may institute a suit. For these reasons we are unable to agree with the conclusions reached by the learned Subordinate Judge that the present suit is barred under Section 93 read with Section 87 of Act XIX of 1951.

16. We must, however, observe that it is most undesirable that courts against whose judgments appeals eventually lie to the High Court should dismiss the suits on preliminary issues. In Mahomed Sulaman v. Birendra Chandra Singh the Privy Council, following an earlier decision of Lord Justice Turner in Bannerjee v. Puddomoney Dossee, held that by forbearing from deciding all the issues the courts below not infrequently oblige the Court of Appeal to remand the case which otherwise might finally be decided involving serious inconvenience to the parties. The same view has again been reiterated in Jagannatharao Dam v. Rambharosa by the Privy Council. It is unnecessary to refer to the various decisions of the High Courts which hive uniformly upheld the principle that in appealable cases,it is desirable that the trial court should record its findings on all the issues settled. As pointed out by Viswanatha Sastri, J. in Shibathullahi Sahib v. Mohammed Labbai apart from the high authority of the decided cases a specific circular was issued by the High Court that as a general rule the Subordinate courts, as far as possible, receive the evidence adduced and decide all the issues in order to avoid a piecemeal trial and a protracted litigation in the shape of an appeal and remand in case the decision of the Subordinate Court on the preliminary issues is not upheld by the Appellate Court. This is the most salutary procedure and must be generally followed.

17. In view of the conclusion reached by us that the findings of the learned Subordinate Judge on the preliminary issue are nut sustainable, this appeal must be allowed.

18. The judgment and decree of the lower court is set aside and the suit remanded for disposal according to law on the remaining issues.

19. Since the appeal has been allowed and the suit remanded for disposal on the remaining issues, normally, we should have directed the refund of the court-fee, if the appellant had paid the court-fee on the memorandum of appeal. In this case, the appeal has been presented ‘in forma pauperis’ under O. 44, R. 1, C.P.C We, therefore, direct that the appellant need not pay court-fee to the Government. The costs of this appeal will be costs in the cause.

Ch. R.