MALIMATH, J. ( 1 ) THIS is a Regular First Appeal against the decree passed by the Civil judge, Mangalore, South Kanara, in OS. No. 29/66, by the original defendants 1 and 2, the State of Mysore and the Area Committee, respectively. Respondent No. 1 brought the suit for a declaration that Shree Hosa somanatha Temple situate in RS. No. 446 and TS. 192/1-2 of Attavar village, mangalore City, is a religious denominational temple belonging exclusively to Charodi Community of Mangalore taluka and that all the rights of administration and its affairs belong to this denomination represented by the plaintiff and that defendants 1 and 2 have no manner of right to appoint trustees and enforce the provisions of Ss. 31, 39, 41, 42, 44 and 76 (5) of the Madras Act No. 19 of 1951 and for possession of 'a' schedule properties from the defendants. The suit was brought invoking the provisions of Order 1 Rule 8 CPC. on behalf of the members of the charcdi community. The plaintiff's case is that 'shree Hosa Somanatha' temple in Attavar village, Mangalore City, is a temple belonging exclusively to the charodi community of Mangalore Taluka, The plaintiff's case is that as this temple belongs to a religious denomination, viz. , charodi community, and the defendants 1 and 2. the State of Mysore and the area Committee constituted under the provisions of the Hindu Religious and Charitable Endowments Act, 1951, have no right to enforce the provisions of Ss. 31, 39, 41, 42, 44 and 76 (5) of the said Act. According to the plaintiff, defendant No. 3. who is also a member of the charodi community, is in possession of the suit schedule properties. It is averred that defendant No. 3 has mis-managed the affairs of the temple. Defendant no. 3 did not file any written statement resisting the suit. Defendants 1 and 2, however, filed a written statement contesting the suit. The principal contention of defendants 1 and 2 is that temple is not a denominational temple belonging exclusively to the members of the charodi community, but that it belongs to the members of the Hindu community at large. They, therefore, contended that they are entitled to enforce the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951, and in particular, the provisions of Ss. 31. 39, 41, 42, 44 and 76 (5) of the said Act. They, therefore, contended that they are entitled to enforce the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951, and in particular, the provisions of Ss. 31. 39, 41, 42, 44 and 76 (5) of the said Act. ( 2 ) THE learned Civil Judge after considering the evidence on record made a decree in favour of the plaintiff as prayed for. He held that the temple in question is a denominational temple of the charodi community. ( 3 ) IT is the decree passed bv the learned Civil Judge that is challenged by defendants 1 and 2 in this regular first appeal under S. 96 CPC. ( 4 ) DEFENDANT No. 3, who remained exparte in the trial Court has not preferred any appeal and the decree against him has become final. ( 5 ) THE principal contention urged by Sri N. Venkatachala, learned high Court Government Pleader appearing on behalf of the appellants, is that the finding recorded by the learned Civil Judge that the temple is a denominational temple exclusively belonging to the members of the charodi community, is not legal and proper. He took us through the evidence placed by the parties in this connection. In order to establish the plaintiff's case that the temple in question is a denominational temple belonging exclusively to the charodi community, the plaintiff has examined in all four witnesses. PW. 4 is a photographer who has been examined only to prove the photographs which have been produced in this case as exts. A6 and A7, of which Exts. A8 and A9 are the negatives. The material evidence produced on behalf of the plaintiff consists of the evidence of PWs. 1 to 3. On behalf of the defendants the only evidence is that of the Inspector of Hindu Religious and Charitable Endowments, Mangalore, who has been examined as DW. 1 in this case. ( 6 ) PW. 1, Laxmana Mestha, is a member of the charodi community. He is an old gentleman of 85 years. He has stated that the temple in question is one which exclusively belongs to the members of the charodi community. He has categorically stated that the members of other communities have no right, whatsoever, over the said temple. This witness resides very near the temple in question. He is an old gentleman of 85 years. He has stated that the temple in question is one which exclusively belongs to the members of the charodi community. He has categorically stated that the members of other communities have no right, whatsoever, over the said temple. This witness resides very near the temple in question. He has categorically stated that the members belonging to the other communities have not at all contributed in any manner, to the construction or the maintenance of the temple. It is no doubt true, as pointed out by Sri N. Venkatachala, the learned high Court Government Pleader that this witness has stated that the members of the other communities attend the functions in the temple. But it is necessary to note that the witness has categoricallv stated that the members of other communities do not give any kanike or participate in those functions, This witness was managing the affairs of the temple in question for about five years. He is, therefore, a very competent person to speak about the temple and the devotees that come to worship in the said temple. This witness has stated that the temple gets from the Government as 'tasdiq' only Rs. 26 per annum, whereas about Rs. 250 are required for the purpose of the poojas and other ceremonies in the temple. That money, according to this witness, is collected from the members of the charodi community. Neither this witness nor the other witnesses examined in this case are in a position to sav anything about the origin of this temple. But this witness has clearly spoken about the inscrintion that is found on the stone slab in the garbha gudi of the temple which is in kannada in the following words: "charodi Vargada Hattu Samastaru Devasthana. " when rendered into English, it reads thus' "temple "belonging to charodi people". This witness has stated that he saw this inscription for the first time about 40 years back. As the inscription is rn the main stone slab of the garbha gudi it is reasonable to infer that the said inscription was there right from the date of the construction of the temple There is no evidence on record, nor is there anv suggestion of the defendants that the said inscription came to be carved out recentlv. As the inscription is rn the main stone slab of the garbha gudi it is reasonable to infer that the said inscription was there right from the date of the construction of the temple There is no evidence on record, nor is there anv suggestion of the defendants that the said inscription came to be carved out recentlv. The aforesaid inscription is the most important circumstance or piece of evidence in the case, which clearly indicates that the temple in question belongs exclusively to the members of the charodi community. Otherwise, there was no peed or necessity to carvo out such inscrintion in such a prominent manner on the stone slab in the garbha gudi of the temple. There is no reason to reject the evidence of PW. 1 whose evidence has been accepted by the trial Court. ( 7 ) THE next witness examined is. P. W. 2, N. Balakrishna Naik. This witness claims to be the president of the Sanch of members of the charodi community. This witness fully corroborates the evidence of P. W. 1 and states that the temple exclusively belongs to the members of the charodi community. He resides near the temple only about 20 yards away. He has categorically stated that, except the members of the charodi community no-one-else visits the temple. It was suggested to this witness that the persons who perform the pooja are brahmin archakas. It is necessary to note that the members of the charodi community are a section of the hindu community. It is not uncommon to have the services of brahmins for performing the pool as and religious ceremonies by sections, of the hindu community. Merely because Brahmins are employed for performing the pooias and other religious ceremonies in the temple, it does not necessarily follow that the temple is not one exclusively belonging to the members of the charodi community. The learned Civil Judge has accepted the evidence of this witness and we do not find any good reasons to reject the same. ( 8 ) THE next witnesss examined on behalf of the plaintiff is, PW. 3, krishna Mestha. This witness also is a member of the charodi community who resides about four furlongs away from the said temple. This witness also speaks about the inscription in the gurbha gudi of the temple to which I have already adverted. ( 8 ) THE next witnesss examined on behalf of the plaintiff is, PW. 3, krishna Mestha. This witness also is a member of the charodi community who resides about four furlongs away from the said temple. This witness also speaks about the inscription in the gurbha gudi of the temple to which I have already adverted. He has also stated that the temple in question exclusively belongs to the members of the charodi community. Nothing worth mentioning has been elicited in the cross-examination of this witness to dis-credit his testimony. The learned Civil Judge has accepted his evidence and we do not find any good reasons to reject his testimony. ( 9 ) AS already mentioned, the evidence on behalf of the defendants as that of DW. 1, B. Krishna Bhat. This witness claims to have been the inspector of Mangalore Division, since October 1966. He has stated that from 1950 to 1958 also he was the Inspector of Mangalore Division, and therefore, knows about the temple in question. This witness has, no doubt, stated that the members of the public used to worship and that the worship is not confined to the members of the charodi community alone. He has asserted that the temple is not a denominational temple, and that it belongs to the members of the Hindu community at large. It is necessary to note that this witness, who is an officer functioning under the Commissioner for Religious and Charitable Endowments, has not produced any records pertaining to the temple, except one proceeding book. This witness has admitted that the temple-war file pertaining to this temple is missing. It is necessary to note that in the written statement a positive stand is taken by defendants 1 and 2 that the management of the temple was transferred to the charodi community people some time back and and that the members of the charodi community did not claim any right to the management of the temple or to the properties attached thereto. The proceedings pertaining to the transfer of the temple to the members of the charodi community, though referred to in the written statement, have not been produced on behalf of defendants 1 and 2. The fact that the authorities under the Religious and Charitable Endowments Act themselves at one stage considered it proper to transfer the temple to the members of the charodi community, is significant. The fact that the authorities under the Religious and Charitable Endowments Act themselves at one stage considered it proper to transfer the temple to the members of the charodi community, is significant. If the temple really belongs to the Hindu community at large, it is ununderstandable as to why the concerned authorities decided to transfer the management of the temple only to the members of the charodi community. As the proceedings pertaining to the transfer have not been produced an adverse inference has to be drawn against defendants 1 and 2. Though this witness claims to know about the affairs of the temple, it is significant to note that he has admitted in his cross-examination that he has not seen the inscription on the wall of the Sanctum Sanctorum. The inscription which I have already extracted, clearly shows that the temple belongs to the members of the charodi community. This witness who is the Inspector of the Religious and Charitable Endowments in mangalore Division, could not have missed this important inscription, had he visited the temple and acquainted himself about the functioning of this temple. The admission of this witness about his not seeing the important inscription, clearly shows that he has not visited the temple and has no personal knowledge about the functioning of the temple. Therefore, it is difficult to accept the evidence of this witness when he states that the members belonging to other communities also visit the temple and that the temple belongs to the members of the Hindu community at large and not exclusively to the members of the charodi community. This witness has also admitted in the cross-examination that he has not seen the members of other communities worshipping in the temple. He has further admitted that he cannot say now which community people are worshipping. He has further admitted that he has not made any record as to what all communities worship there. All these admissions made by this witness clearly show that he has no personal knowledge about the functioning of the temple in question. We have, therefore, no hesitation in rejecting the evience of DW. 1. ( 10 ) IT is necessary to note that the suit was instituted under the provisions of Or. 1, R. 8 CPC. All these admissions made by this witness clearly show that he has no personal knowledge about the functioning of the temple in question. We have, therefore, no hesitation in rejecting the evience of DW. 1. ( 10 ) IT is necessary to note that the suit was instituted under the provisions of Or. 1, R. 8 CPC. It is necessary to note that though the plaintiff claimed that the temple exclusively belongs to the members of the charodi community, none of the members of the other sections of the hindu community has come forward to resist the suit. It is also interesting to note that the defendants have not been able to adduce the evidence of witnesses belonging to other communities. These circumstances indicate that the members belonging to the other sections of the Hindu community in the locality are not interested in claiming or asserting that the temple in question belongs to the members of the Hindu community at large, and that it does not belong to the members of the charodi community only. ( 11 ) FOR the aforesaid reasons, we affirm the finding recorded by the learned Civil Judge that the temple in question is a denominational temple exclusively belonging to the members of the charodi community. ( 12 ) AS the temple is a denominational temple, it is clear that defendants 1 and 2 are not entitled to enforce the provisions of Ss. 39, 41, 42, 44 and 76 (5) of the Madras Hindu Religious and Charitable Endowments act, 1951, in as much as, all those provisions have been struck down by this Court in Mukundaraya v. State of Mysore, 1959 Mys. L. J. 708. It is conceded by both the sides that so far as S. 31 is concerned, it has no application at all, the lower Court was, therefore, justified in issuing an order of injunction restraining the defendants 1 and 2 from enforcing the aforesaid provisiond of the Madras Hindu Religious and Charitable Endowments Act, 1951. ( 13 ) SHRI N. Venkatachala, learned High Court Government Pleader, contended that the plaintiff has no locus standi to maintain the suit. There is no substance in this contention. It is necessary to note that the suit has been brought under Or. 1, R. 8 CPC. on behalf of the members of the charodi community. ( 13 ) SHRI N. Venkatachala, learned High Court Government Pleader, contended that the plaintiff has no locus standi to maintain the suit. There is no substance in this contention. It is necessary to note that the suit has been brought under Or. 1, R. 8 CPC. on behalf of the members of the charodi community. Charodi Abhyudaya Sangha is an association of the members of the charodi community, as borne out by the memorandum of Association, Ext. A1. The President of the Sangha is himself a member of the charodi community. It is the President, Sri N. Balakrishna Nayak, who has signed the plaint as well as verified the same. It cannot be contended with any justification that the 'sangha' in question whose members are all persons belonging to the charodi community, is not entitled to file the present suit. Besides, the suit has been filed by N. Balakrishna nayak who is admittedly a member of the charodi community. There is, therefore, no substance in the contention of the learned High Court government Pleader that the suit brought by the registered sangha is not maintainable. ( 14 ) THE next complaint of Sri N. Venkatachala, learned High Court government Pleader, is that the suit was not maintainable. He contended that under S. 57 of the Madras Hindu Religious and Charitable Endowments act, 1951, it is the Deputy Commissioner that has jurisdiction to decide whether the institution is a religious institution. Defts. 1 and 2 did not raise any such contention in their written statement in the trial Court. They also did not seek any issue on this question. The learned Counsel for the respondent contended that we should not permit the appellants to raise this question for the first time in appeal. We do not find any substance in the contention raised by Sri Venkatachala. The provisions of Ss. 39, 41, 42, 44 and 76 (5) have been struck down by this Court in Mukundaraya v. State of Mysore. The suit of the plaintiff for restraining defendants 1 and 2 from enforcing these provisions was clearly maintainable as a dispute of this type does not at all come within the ambit of Sec. 57 of the Act. ( 15 ) SRI N. Venkatachala, learned High Court Government Pleader, next contended that the decree for possession passed by the lower Court against all the defendants is not proper. ( 15 ) SRI N. Venkatachala, learned High Court Government Pleader, next contended that the decree for possession passed by the lower Court against all the defendants is not proper. The plaintiff has categorically stated in para (7) of the plaint that the properties are in the possession of the 3rd defendant. The defendants 1 and 2 also do not claim that they are in possession of the properties. Therefore, the learned High Court government Pleader, is right when he contends that no decree for possession could have been passed by the learned Civil Judge against defendants 1 and 2. We, therefore, modify the decree passed by the learned civil Judge and confine the decree for possession only against defendant no. 3. The decree, in so far as it relates to the delivery of possession against defendants 1 and 2, is set aside. ( 16 ) FOR the reasons stated above, this appeal fails, except for the modifications made above. In the circumstances, the parties shall bear their respective costs. --- *** --- .