Judgment:
M. Venugopal, J.
1. The appellants/defendants have preferred this appeal as against the Judgment and decree made in O.S.No.746 of 1993 by the learned Second Additional Subordinate Judge, Salem in setting aside the order the Commissioner(HR & CE) dated 5.3.1993 in A.P.No.57/1990 and granting the relief of declaration that the suit temple is the private temple of the respondent/plaintiff's family.
2.The short facts that are necessary for the disposal of the case are as below:
The suit temple Arulmighu Nagamuneswarar temple is a small temple is situated in Block 3 Ward F.Bazaar Street(Main Road) in door No. 305, in T.S.No.109,Shevapet, Salem and the same belongs to the respondent/plaintiff's family exclusively. The ancestor of the respondent's/plaintiff's husband Amboiyra Naicker has acquired a land about 100 years ago and has put up a thatched shed and installed Muniappan Idol and founded the suit temple in the property. After the death of said Amboiyra Naicker, his son Marimuthu Naicker has removed the thatched shed and constructed the tiled building for the suit temple and he was in management of the affairs of the temple. The said Marimuthu Naicker spent the amount exclusively for constructing the tiled building for the suit temple. He was performing poojas during his life span and was also administering the other temple affairs. After the demise of Marimuthu Naicker, his son Muthusamy Naicker viz., the husband of the respondent/plaintiff has taken up the affairs of the management of the suit temple. In his life time, he has renovated the temple by putting an extension and also built Gopuram. Further he has also built some shops adjoining the suit temple. The said Muthusamy Naicker met the expenses and the construction costs thereto. Nobody has contributed for the construction of the temple, Gopuram and other renovation works and the respondent's/plaintiff's family at their cost have carried out the development works. Therefore, except the respondent/plaintiff no one has any right, title, interest or possession over the suit temple. In the year 1991, Muthusamy Naicker expired and later the respondent/plaintiff, the wife of the deceased Muthusamy Naicker succeeded in as legal representative and she has been managing the affairs of the temple exclusively.
3. Till 1982, neither the appellants/defendants, departmental officials nor outsiders including the other family members of the respondent/plaintiff interferred in the affairs and management of the suit temple. Later the first appellant/first defendant has been issuing notices to the respondent/plaintiff calling for objections, if any, as to why the trustees should not be appointed in regard to the suit temple for which the respondent/plaintiff has explained to the authorities that the suit temple has been exclusive management of the respondent/plaintiff's family for well over 100 years without any interference from any quarters and that the H.R.& C.E.Department cannot appoint the trustees for the suit temple. The respondent/plaintiff also stated that the suit temple is a private one. Notwithstanding the same, the first appellant/first defendant has been issuing notices and the respondent/plaintiff filed O.A.No.161/1987 before the second defendant under Section 69(1) of the Tamil Nadu Hindu Religious and Charitable Endowment Act 1959 seeking declaration that the suit temple is a private temple and for other reliefs. The second appellant/second defendant has dismissed the said original application. Patta in respect of the land in which the suit temple lies stands in the name of the respondent/plaintiff. The respondent/plaintiff has filed an appeal before the third appellant/third defendant in A.P.No.57 of 1990 being aggrieved against the order passed in O.A.No.161 of 1987 by the Deputy Commissioner, H.R.& C.E. Since the respondent/plaintiff is attending the affairs of the suit temple exclusively and because of the fact that except the plaintiff's family , none others are managing the affairs of the temple till today. The present suit has been filed by the respondent/plaintiff praying for the relief of declaration that the suit temple is a private temple of the respondent/plaintiff's family.
4. The first appellant/first defendant has filed a written statement(which has been adopted by defendants 2 and 3) inter alia stating that the respondent/plaintiff and their family is no way connected to the suit temple and the suit temple is a public temple and it is absolutely false that the husband of the respondent/plaintiff has constructed the bucca building for the suit temple with his own funds and that the suit temple is a public temple and that the festivities and other functions have been performed by means of collecting the money from the public and that the suit temple has been classified as non-listed temple and continuing further in the written statement, a further plea has been raised to the effect that the appellants/defendants have taken steps to appoint non-hereditary trustees and also have taken steps to change the category of the temple from non-listed one to the listed temple. The order passed by the Department is a valid one and that the respondent/plaintiff has suppressed many real factors. In fact, there is no property to the suit temple and the expenses and festivals of the temple have been performed by the public by means of the amount being collected from them. As such, the respondent/plaintiff or no one else has any right in regard to the temple as the private temple.
5. On the basis of the aforesaid pleadings, the trial Court has framed five issues. On the side of the respondent/plaintiff's witnesses, P.W.1 and P.W.2 were examined and Exs P1 to P8 were marked and on the side of the appellants/defendants, D.W.1 and D.W.2 were examined and Exs D1 and D2 were marked.
6. The trial Court, on an appreciation of the oral and documentary evidence and taking note of the available material evidence on record, and after analysing the same, has granted the relief of declaration to the respondent/plaintiff that the suit temple is a private one of her family and set aside the order of third appellant dated 05.07.1993 passed in A.P.No.57 of 1990. Aggrieved against the said Judgment and decree passed by the trial Court, the appellants/defendants have projected this appeal before this Court.
7. Heard both the learned Counsel appearing for the parties and this Court has noticed their respective contentions.
8. The points that arise for determination are
(1) Whether the finding of the trial Court that the suit temple is a private temple of respondent/plaintiff's family is sustainable in law?
(2) Whether the trial Court is right in setting aside the orders of third appellant dated 05.07.1993 passed in A.P.No.57 of 1990?
9. Point Nos. 1 and 2:
According to Mr. M.R.Murugesan, the learned Special Government Plealder(H.R.& C.E), the trial Court has failed to adjudicate the founder of the temple and the construction of the temple in its Judgment and further that the trial Court has not appreciated all the facts that the festivals of the temple have been celebrated only from and out of the funds collected from the public and other donations and more over, the respondent/plaintiff has no manner of right to claim the temple is a private one which fact has not been looked into by the trial Court in a proper perspective and that the trial Court has not considered that the petition filed by the respondent/plaintiff against the appointment of non-hereditary trustee has been rejected by the appellants/defendants and the same has also been confirmed in the appeal and these facts have been suppressed by the respondent/plaintiff before the trial Court and as far as the present case is concerned, there are no documentary evidence available except the oral evidence to establish that the temple is a private one and this aspect of the matter has not been properly adverted to by the trial Court and therefore prays for allowing the appeal in furtherance of substantial cause of justice.
10. The learned Special Government Pleader (H.R.& C.E) relied on a decision reported in Hindu Religious and Charitable Endowment (A) Department v. N. Sivarawajan Nadar (2001) (2) CTC 513 wherein it has been held that ' person alleging that temple under consideration is private temple and not public temple, onus of proof is on person alleging that it is a private temple'.
11. Mr. P.Mathivanan, the learned Counsel appearing for the respondent/plaintiff submits that earlier the ancestor of the respondent/plaintiff's husband Amboiyra Naicker has acquired a land about 100 years and has erected a thatched shed and installed Muniappan idol in the said property and founded the suit temple and later after the death of the said Amboiyra Naicker, his son Marimuthu Naicker construcuted the tiled building for the suit temple after removing the thatched shed and he has been in management of the affairs of the temple and that during his life time, he has been performing all poojas and administering the other temple works and after the demise of Marimuthu Naicker, his son Muthusamy Naicker, viz., the husband of the respondent/plaintiff has taken up the management affairs of the suit temple and that he has renovated the suit temple by putting up extension and also constructed Gopuram for the temple and that the trial Court has come to the right conclusion that the suit temple belongs to the respondent's/plaintiff's family and that the daily affairs of the said temple has been looked after by the respondent/plaintiff and the same need not be interfered with by this Court in an appeal.
12. It is pertinent to refer to the evidence of P.W.1/plaintiff that she has not filed any documents to show that the suit temple has been in management of their family for well over 100 years and that further after the death of her husband in the year 1971, she has been in management of the temple for the past 29 years and that she has not looked into the revenue records to know whether the suit temple is situate in poramboke land or the patta land. It is also further evidence of P.W.1/plaintiff that the priest is performing poojas in the temple for a long time and that she has not entered into any agreement with him and that she has not written any accounts as to the amount of expenditure involved in regard to the construction of the shop in the suit property. Added further it is the evidence of P.W.1/plaintiff that in the suit temple every year during the month of Vaikasi Naga Munieswaran festival is conducted by her and during that time singers will be called for to conduct of Katchery and that the temple idol will be taken in a procession through Periyaidathukkara Street etc and when the procession comes the people will light camphor, perform Archanas etc.
13. It is the evidence of P.W.2 that he is serving as a Priest in the Naga Muniappan temple connected with the suit and also for another Vinayagar Temple and that he has been priest for the past of 46 years and that the suit temple initially has been maintained by the respondent/plaintiff's father-in-law and later it was maintained by the respondent's/ plaintiff's husband and after the death of plaintiff's husband, the plaintiff is looking after the same.
14. It is significant to make a mention that it is the categorical evidence of P.W.2 that the respondent's/plaintiff's husband has been maintaining the suit temple and during his period, he has removed the thatched shed and put up the terraced portion and constructed the temple and all the expenses have been made by the respondent's/plaintiff's husband and the expenditure incurred by him absolutely and in the suit temple, there is no hundial kept for the collection of the money and that the suit temple belongs to the respondent's/plaintiff's husband in his individual capacity and that a shop which was situated near the temple has been constructed by the respondent/plaintiff and that personally the said shop has been rented out to Mohan Chettiar etc.
15. On the side of the appellants/defendants, it is the evidence of D.W.1(The inspector of the Salem Division of H.R.&C.E; Department) that the suit temple is a public temple for which festivals and ursavam have been performed with the income of the temple shop and that it is not correct to state that the suit temple belongs to the respondent's/plaintiff's ancestors in their individual capacity and that he is not aware that the respondent/plaintiff is the trustee and before her, her husband has been trustee and that the respondent/plaintiff is not entitled to the reliefs prayed for in the plaint and that the suit temple has got all the ingredients of public temple.
16. During the course of his cross examination, D.W.1 has deposed that in the Salem Division, he has been serving as Inspector for the past 1 years and that he cannot say with certainty as to how many years, the suit temple has been in possession and enjoyment of the respondent/plaintiff and her ancestors and that he is not aware of the fact that as to how the suit temple has been in existence before and who has altered the construction of the temple later etc.
17. Continuing further, D.W.2 (Assistant of Deputy Commissioner, H.R. & C.E.) has deposed that the suit temple is not situated in individual's land and the same is a public temple in a Government poramboke land and that he has not brought the suit records to the Court and based on Ex.B1, B2 documents, the place where the temple is situated is not mentioned as one belonging to the private individual.
18. It is to be noted that Section 6(20) of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 refers to the term 'Temple' meaning a 'place by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu Community or any Section thereof, as a place of public religious worship'. The test is to look into the fact as to whether the suit temple is a public temple, whether it is dedicated to public religious worship and that the public have free access to the same as a matter of right. Needless to state that the origin of the temple, the manner in which the affairs are managed, the gifts received by it and the rights exercised by devotees in regard to worship thereunder and the consciousness of the devotees themselves as to the character of the temple are factors which go to point out whether the temple is a public or private one.
19. Admittedly, there is no definition for a private temple under H.R.& C.E. Act. The presumption is that temples in South India are public and the burden is on the person asserting it to establish that it is a private temple in the considered opinion of this Court. Further, the appearance of a temple is a significant circumstance but the same is not a decisive factor. In a civil suit, it is the duty of the respondent/plaintiff to establish his/her case. In the instant case on hand, even though the respondent/plaintiff has sought for the relief of declaration that the suit temple is a private temple of the respondent's/plaintiff's family, this Court is of the considered view that on either side, there is no clinching evidence to establish as to who has built the suit temple? and who is the founder of the temple? and except the Ipsi Dixi of the witnesses, on both sides, there is no satisfactory available material both oral and documentary evidence to the subjective satisfaction of this Court to prove the factum that the suit temple is the private temple of the respondent's/plaintiff's family and in that view of the matter, this Court comes to the conclusion that the Judgment of the trial Court in declaring that the suit temple is a private temple of the respondent's/plaintiff's family and setting aside the order of third appellant dated 05.07.1993 passed in A.P.No.57 of 1990 are not correct in the eye of law and the same are liable to be set aside and resultantly, this Court allows the appeal in the interest of justice.
20. In the result, the appeal is allowed and the Judgement and decree of the trial Court made in O.S.No.746 of 1993 are set aside. However, the matter is remanded back to the trial Court for fresh consideration of the matter and the parties have been given liberty to adduce further oral and documentary evidence to prove their respective contentions and the trial Court is directed to dispose of the suit within a period of four months from the date of receipt of a copy of this order uninfluenced by any of the observations made by this Court in this appeal and report compliance to this Court without fail. Considering the facts and circumstances of the case, there shall be no order as to costs.