JUDGMENT
K. Sampath, J.
1. The defendant/ Commissioner, H.R. & C.E. Department, in O.S.No. 71 of 1981 is the appellant in the second appeal.
2. The suit was filed by the respondents herein, as representatives of Sengunthar Mudaliar Samuthayam residing at Kottar in Agasteeswaram Taluk, on their behalf and as elected trustees of the said Samuthayam, for declaration that the suit temples were denominational ones and for injunction.
3. Their case was as follows:
Sri Chentra Disai Ventra Vinayagar temple and its sub-temple Sri Mutharamman temple along with their properties belonged to the Sengunthar Mudaliar Samuthayam of Kottar; the temples were founded by the Sengutha Mudaliar community people from out of their own contribution; besides several endowments also had been created and the said temples being maintained and administered by the elected trustees from out of the income from the properties, and the religious services and other festivals in the temples also being regularly conducted by the people of that community pursuant to a scheme in O.S.No. 65 of 1116 M.D. on the file of the District Court, Nagercoil, as confirmed by this Court in A.S.No. 633 of 1956; the decree had, thus, confirmed the right of the community to administer and manage the affairs of the temples and their properties; no member of the public outside the said community ever interfered in the administration of the temples and their properties; whileso, the authorities had taken steps to appoint trustees for the administration of the temples and their properties over looking that the temple were religious denominational ones belonging to the Kottar Senguntha Mudaliar Samuthayam and against the rights guaranteed under Article 26 of the Indian Constitution and under Section 107 of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959, (hereinafter referred to as ‘the Act’); the representatives of the community took proceedings for getting declaration under Section 63(a) of the Tamil Nadu Act 22 of 1959 before the Deputy Commissioner, H.R. & C.E., Madurai, in O.A.No. 49 of 1968; the said application was dismissed; the appeal filed before the appellant herein in A.P.No. 41 of 1968 was also dismissed; the suit O.S.No. 24 of 1971 was dismissed as also A.S.No. 465 of 1974 on the file of this Court on 14.6.1978; the defendant had no right to interfere with the administration and management of the temples by the representatives of the Samuthayam; and this had necessitated the filing of the suit for a declaration as stated supra.
4. The appellant/ defendant resisted the suit contending inter alia as follows:
The suit temples were public religious institutions coming within the purview of Act 22 of 1959 s defined under Section 6(20) of the Act; the temples did not belong to Kottar Senguntha Mudaliar Samuthayam; the plaintiffs were not the elected trustees and the representatives of the said community and the origin of the temples also were not known; there was no deed of dedication; the temples were not vested with the plaintiffs community; no doubt, the plaintiffs community was a section of the Hindu community, but the temples were not the private temples of the said community; they were public temples and the administration and management were not done by the people belonging to the plaintiffs community; the election for trustees under the scheme decree had so far not been done; the Department took steps to bring the administration within the ambit of the Act; moreover, a number of persons belonging to Senguntha Mudaliar Community filed O.S.No. 34 of 1971 claiming the temples as private temples; the suit was dismissed holding that it was a public religious institution; the decree in O.S.No. 34 of 1971 would operate as res judicata against the plaintiffs in filing the present suit; the Department had got power to appoint trustees for the suit temples; there were different Sannathis for Vinayagar, Shiva, Devi and Natrajar and there were separate Vimanams for each deity; the patta for the temples properties was in the name of the main deity; there was a paid archakar for the temples; all sections of Hindus were entitled to visit the temples as a matter of right; the present suit was also barred under Section 108 of the Act; this defendant advised that the plaintiffs could invoke Section 51 or 64(1) of the Act; and there was no cause of action for the suit.
5. The trial Court framed the necessary issues on the pleadings of the parties and on the materials granted the prayer by judgment and decree dated 21.10.1983.
6. The defendant filed appeal in A.S.No. 30 of 1984 before this District Court, Nagercoil. The learned District Judge, Nagercoil, framed the necessary point for determination and confirmed the decision of the trial Court and dismissed the appeal.
7. It is, as against that the present second appeal has been filed.
8. At the time of admission the following two substantial questions of law were raised for decision:
(1) Whether the suit is barred on the principle of res judicata?
(2) Whether the suit is barred in view of Section 108 of the H.R. & C.E. Act?
9. The learned Special Government Pleader vehemently contended that the earlier decision in O.S.No. 34 of 1971, wherein it was held that the suit temples were not private temples, but, public temples, would operate as res judicata. The learned Counsel also submitted that absolutely no documentary proof had been produced before the Courts below in support of the plaintiffs contention that the temples were denominational temples and in the absence of any conclusive piece of evidence the decision reached by the Courts below could not be sustained. The learned Special Government Pleader also relied on the following two judgments:
(1) The Assistant Commissioner, H.R. & C.E., Salem v. Nattamai K.S. Ellappa Mudaliar 100 L.W. 240 and (2) The Assistant Commissioner, H.R. & C.E., Tirunelveli v. Swaminathan Iyer 1987 T.L.N.J. 210.
10. No doubt, as rightly observed by the lower appellate Court, the burden was on the plaintiffs to show that the suit temples were denominational ones and that the administration and management were carried on only by the Senguntha Mudaliar community people. Moreso, no documentary evidence had been produced to show that the temples were founded by the ancestors of the plaintiffs community and that the properties were purchased by them. This was also noticed by the learned District Judge while adverting to the available materials, both, oral and documentary, to reach the conclusion he did in holding that the suit temples were denominational ones. The fifth plaintiff was examined as P.W.1 and he had stated that the suit temples were founded by the ancestors of Senguntha Mudaliar Samuthayam at Kottar about 35 years prior to the suit and the properties worth more than a lakh of rupees were also purchased in the names of the temples by the people belonging to their community. From time immemorial, elected representatives of the community were administering the affairs of the temples and the properties. There was a scheme framed for proper administration and management of the temples and their properties as would be evident from Ex.A-1 to Ex.A-10 certified copy of the judgment in O.S.No. 65 of 1116 M.E. and Ex.A-11, copy of the decree in the suit. The Courts below held that the temples could have been founded only by Senguntha Mudaliar Community. According to the Courts below, the very framing of the scheme for administering the temples would go a long way and would be a very strong circumstances to come to the conclusion that Senguntha Mudaliar Samuthayam, residing at Kottar, alone had got a right to administer and manage the temples and their properties. The Courts below have also noticed that no other community person had claimed any right in the temples and it was also not stated that they have got right to worship as matter of right. The witness examined on the side of the appellant/ defendant could not contribute anything towards the case. D.W.1/ Inspector attached to the Department, stated that he had no knowledge in respect of transactions prior to 1975. He was also not willing to assert that members belonging to other communities had worshipped in the temples and that he had seen it. The reliance on the proceedings in the previous suit would not avail. Those proceedings related to the claim by some of the representatives of the community that the suit temples were private temples. Section 6(2) of the Act is clear and it says a temple means the 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. That would clearly show that even if one particular community claimed the right of worship on the ground that there was dedication, by the representatives of that community, of the temple and the properties, it would be still a temple. The learned Counsel placed reliance on Section108 of the Act and contended that the suit filed by the plaintiffs was not maintainable under law.
11. It has been held in Santhanagopala Chettiar v. Seetharama Chettiar , that the question whether a temple was a denominational one coming under Article 26 of the Constitution was certainly within the jurisdiction of the Civil Court.
The contention on behalf of the appellant is therefore to be rejected regarding the want of jurisdiction of the Civil Court.
12. It has been held in R. Chinna Bhoyan v. The Commissioner, H.R. & C.E., Madras , that the suit for declaration, that the right to manage and administer a temple and its properties was vested in a particular community, was clearly maintainable. If at all the Deputy Commissioner could claim any jurisdiction, it would be under Section 63(a) of the Act to decide whether an institution was a religious institution; he had no power to decide whether it exclusively belonged to a particular community.
13. The learned Special Government Pleader contended that the people at large can worship in the suit temples as a matter of right and hence it could not be said that they were denominational ones. It is, now, settled law that the mere fact that the general public were freely admitted to the temples could not mean that there should be a ready inference that the temples were public ones, and that there was no dedication to the public. It would depend on the facts and circumstances of each case. As pointed out by the Courts below, the appellant had not been able to establish that the persons belonging to other communities were worshipping in the suit temples as a matter of right.
14. As regards the bar under Section 108 of the Act, when once it was established that the suit temples were denominational ones, then Section 108 would not apply. It had been clearly shown that the plaintiffs were the elected representatives of the said community. Exs.A-7 to A-9 were the entries in the Minutes Books. There is really no warrant for taking a different view.
15. As regards res judicata raised by the Special Government Pleader, it would not really come into play for the simple reason that the earlier suit was for declaration that the suit temples were private temples. No doubt, the representatives lost the suit and it had been held that the suit temples were not private temples. Now the claim of the representatives was that the suit temples were denominational ones. There is an ocean of difference between the two claims. The Courts below have rightly held that the principle of res judicata could not apply.
16. As regard the judgments relied on by the learned Special Government Pleader, namely,
(1) In The Assistant Commissioner, H.R. & C.E., Salem v. Nattamai K.S. Ellappa Mudaliar, 100 L.W. 240, M. Srinivasan, J. (as the learned Judge then was) had elaborately considered as to what a religious denomination was what kind of protection under Article 20 of the Indian Constitution was available to the members of the community claiming to be a religious denomination, and as to how the common faith of the community should be based on religion and there should be common tenders necessary.
(2) The other decision is The Assistant Commissioner, H.R. & C.E., Tirunelveli v. Swaminathan Iyer 1987 T.L.N.J. 210. S.A. Kader, J. (as the learned Judge than was) adverted to the decision of Srinivasan, J. and other decisions and laid down the tests for institution being declared as a religious denominational institution.
17. As it has been found that the requisites were satisfied in the instant case, it is not necessary to specifically refer to the details contained in the judgments.
18. In view of the above discussion, both the substantial questions of law are answered against the appellant. The second appeal fails and the same is dismissed. No costs.