Judgment :- K.M. Natarajan, J. This letters patent appeal is filed by the unsuccessful defendants against the judgment and decree passed by this court in A.S.No.730 of 1977, confirming judgment and decree passed by the City Civil Court, Madras, in O.S.No.547 of 1965. 2. The facts which are necessary for the disposal of this appeal can be briefly stated follow: For the sake of convenience the array of parties in the trial court is adopted appeal. The plaintiff Sri Siddha Raj Manicka Prabhu,Huminabad Mysore State, filed under Sec.70 of the Hindu Religious and Charitable Endowments Act to set aside the passed by the fourth defendant, Commissioner, Hindu Religious and Charitable Endowments, Madras. The case of the plaintiff is that the suit temple, Sri Kamala Kameswari, Tri Madras, was founded by late Raja Eswar-dos Dayavanth Bahadur and it was property. On his death, his son and guardian became the owners of the temple and were adjudicated as insolvents in I.P.No.50 of 1924. Their estate including the above temple and the right to manage the same came to be vested in the official Assignee, One of the creditors filed C.S.No.545 of 1926 on the file of the High Court of Madras the insolvents and others and a consent decree was passed in the suit and by virtue same, the ownership, possession and management of the temple was transferred predecessor Guru of the plaintiff temple. The plaintiff who had succeeded his predecessor was aged 7 years at the time of his succession. Since he was a minor his guardian O.A.No.76 of 1954 before the Deputy Commissioner for establishing the minor hereditary trusteeship of the suit temple. The Deputy Commissioner allowed O.A.No.76 1954. The necessity for filing the said petition was the fourth defendant appointed defendants 1 to 3 as non-hereditary trustees of the suit temple and taking advantage their appointment, they had installed idols of a different section. On appeal filed by trustees, defendants 1 to 3, before the commissioner, the said order was set Thereupon the guardian filed O.S.No.557 of 1955 on the file of the City Civil Court, for setting aside the order of the Commissioner. The said suit was dismissed. There appeal to the High Court, Madras, in A.S.No.14 of 1960. On appeal filed by trustees, defendants 1 to 3, before the commissioner, the said order was set Thereupon the guardian filed O.S.No.557 of 1955 on the file of the City Civil Court, for setting aside the order of the Commissioner. The said suit was dismissed. There appeal to the High Court, Madras, in A.S.No.14 of 1960. During the pendency of the minor who had attained majority by that time, filed C.M.P.No.5405 of 1962 withdrawal of the suit on the ground that the claim of hereditary trusteeship was made mistake as the temple was his private temple. The said C.M.P. was dismissed subsequently the appeal against the order in the said C.M.P. was also dismissed. During pendency of the appeal, the spiritual guru of the plaintiff temple filed O.A.No.38 of the file of the Deputy Commissioner for declaring the temple to be a private temple. The application was dismissed by the Deputy Commissioner and it was confirmed Commissioner in the appeal. It was only to set aside the said order of the Commissioner, present suit was filed under Section 70 of the Hindu Religious and Charitable Endowments Act, Act 22 of 1959, hereinafter referred to “the Act”, for setting aside the order Commissioner, the fourth respondent. Defendents 5, 6 and 7 are the present appointed by the fourth defendant. Hence they were impleaded in the suit. 3. The suit was resisted by defendants, and in the written statement filed by defendants and 2, which was adopted by defendants 5, 6 and 7, it was contended that the having earlier claimed hereditary trusteeship, is estopped from claiming now that the suit temple is a private temple. Further, the temple or its management did not vest in the Official Assignee and had no right to transfer the management and possession to anybody. The agent of plaintiff temple was never in possession and management of the temple. The suit temple was abandoned and the residents of the street, renovated it in 1946 and arranged worship. Thereupon, the Hindu Religious and Charitable Endowment Department appointed trustees for the management. The plaintiff cannot disown the acts of his agent in the earlier proceedings. The temple is and has always been a public temple and the claim in the plaint that it is a private temple is not correct. 4. Thereupon, the Hindu Religious and Charitable Endowment Department appointed trustees for the management. The plaintiff cannot disown the acts of his agent in the earlier proceedings. The temple is and has always been a public temple and the claim in the plaint that it is a private temple is not correct. 4. The fourth defendant though filed a separate written statement, reiterated the averments stated by other defendants in their written statement. 5. The trial court framed as many as five issues and on the basis of the oral documentary evidence, granted a decree in favour of the plaintiff as prayed for, holding under Ex.A-1, the private character of the temple is recognised, that under were transferred in the name of the predecessor Guru of the plaint temple, that the temple is a private temple, that the Hindu Religious and Charitable Endowment Department that the plaintiff not estopped from claiming to be so. Aggrieved by the same, the fourth defendant, Commissioner, Hindu Religious and Charitable Endowment Department, filed A.S.No.730 1977. The said appeal was dismissed by this court. The appellants herein who respondents 5 to 7 in the said appeal and defendants 5 to 7 in the suit, have preferred appeal. The fourth defendant, who was the appellant in A.S.No.730 of 1977 and the respondent in the present L.P.A. filed C.M.P.No.15683 of 1989 to transpose the second respondent as the fourth appellant. The said petition was filed on the ground that appellants were the respondents 5 to 7 in A.S.No.730 of 1977 and defendants 5 to 7 in trial Court, that defendants 5 to 7 were the trustees appointed by the fourth defendant the suit temple, that they preferred the present appeal in their capacity as trustees and the fourth defendant is advised to get himself transposed as the fourth appellant in present appeal as the interest of the appellants and the fourth defendant is similar identical. Though the fourth defendant has not preferred any independent appeal against judgment of the learned single Judge of this Court, he is entitled to get himself transposed as fourth appellant with a view to protect the interest of the suit temple as well as Hindu Religious and Charitable Endowment Department and the interest of the worshippers. temple has been in the continuous management of the Hindu Religious and Charitable Endowment Department since 1945. temple has been in the continuous management of the Hindu Religious and Charitable Endowment Department since 1945. The issue involved in the appeal is the character of temple, whether it is a public or private temple. As such, the Department and the temple only vitally interested in the proper adjudication of the case and the interests of justice require that the second respondent in the present appeal should be transposed as the fourth appellant to avoid any technical objection that may be raised. It is also stated that the fourth defendant has been under the impression that he could support the case of the appellants herein at the time of arguments since they represent the temple. The plaintiff, namely, first respondent in the present appeal filed objections wherein it is stated that defendants to 7 filed A.S.No.437 of 1973 and it was dismissed as they did not prosecute the appeal. A.S.No.730 of 1977 was dismissed after contest on 14.2.1983 and it was become against the fourth defendant. As far as defendants 5 to 7 are concerned, the decree of trial Court has become final by reason of the dismissal of A.S.No.437 of 1973. The present L.P. A.No. 119 of 1983 filed by defendants 5 to 7 is not maintainable. Hence the fourth defendant, against whom the decree has become final, cannot maintain this petition transposition. It is further stated that the appellants herein filed C.M.P.No.10179 of 1987 direction and the first respondent/plaintiff has raised objection regarding the maintainability of the appeal even in the year 1987. Hence, the present petition is not only highly belated but, if the appeal is filed to-day, it will be barred by limitation as six years have passed. petitioner/ fourth defendant is seeking the judicial discretion of this Hon’ble Court and he not entitled to any equity. He therefore prayed for dismissal of this petition. Both this petition as well appeal were heard and disposed of. 6. petitioner/ fourth defendant is seeking the judicial discretion of this Hon’ble Court and he not entitled to any equity. He therefore prayed for dismissal of this petition. Both this petition as well appeal were heard and disposed of. 6. The substantial questions that arise for consideration in this appeal are two fold: Whether the plaintiff, who is the first respondent herein, is precluded from filing the suit for the relief prayed for, by reason of the earlier proceedings and in view of O.2, C.P.C., and Sec.11, C.P.C., and on the principle of election of estoppel; and (2) whether the evidence adduced before court the plaintiff has made out a case that the suit temple private temple and whether the finding of the courts below is sustainable. The senior counsel appearing for the appellants, Mr.M.R.Narayanaswami, submitted that person is entitled to two inconsistent remedies, if he chooses one and pursues it, thereafter he cannot turn round and say that he would pursue the other remedy. In the instant the plaintiff originally pursued his remedy on the footing that he is a hereditary trustee the temple on the basis that it is a public temple. By pursuing the remedy for hereditary trusteeship, he is deemed to have given up the plea that it is a private temple. It is dispute that right to hereditary trusteeship and private temple are mutually inconsistent. this connection, the learned counsel drew the attention of this court that in 1954 the through his guardian instituted O.A.No.76 of 1954 under Secs.57 and 45 (1) of the Nadu Act 22 of 1959 praying that defendants 1 to 3, who are appointed Department, as non-hereditary trustees, should be removed and that it should be that the plaintiff is the hereditary trustee. He also prayed for passing interim restraining the trustees from taking proceedings in respect of the suit temple. The Commissioner, H.R. & C.E., Department, in his order dated 6.10.1954 Ex.B-7 declared the plaintiff is the hereditary trustee of the suit temple and allowed O.S.No.76 of 1954 against the same, an appeal was filed before the Commissioner. The appeal was under Ex.B-8, dated 31.12.1954. To set aside the said order, the plaintiff filed O.S.No.557 1955 before the City Civil Court, and the said suit was dismissed. One of the issue suit, namely, issue No.4 is whether the temple is a private one. The appeal was under Ex.B-8, dated 31.12.1954. To set aside the said order, the plaintiff filed O.S.No.557 1955 before the City Civil Court, and the said suit was dismissed. One of the issue suit, namely, issue No.4 is whether the temple is a private one. Against the dismissal said suit; the plaintiff filed A.S.No.14 of 1960. During the pendency of the appeal, plaintiff attained majority. He filed C.M.P.No.5405 of 1962 in A.S.No.14 of 1960 permission under O.23, Rules 1 and 2, C.P.C., to withdraw the suit O.S.No.557 of 1955 liberty to file a fresh suit. The said petition was dismissed on 1.10.1962 by virtue of the passed by this court under Ex.B-11 and consequently the appeal A.S.No.14 of 1960 was dismissed. Ex.B-12 is the order passed in the appeal. Even before the said order was the suit, which is now under appeal, to declare the suit temple as a private one, instituted. It was also submitted by the learned counsel that the plaintiff filed O.A.No.38 1962 under Sec. 63-A of Act 22 of 1959, on 21.4 .1962, before the Deputy Commissioner, during the pendency of the appeal in A.S.No.14 of 1960. The Deputy Commissioner an order on 4.10.1963 dismissing the application. Against the said order, Appeal No.15 1964 was filed before the Commissioner, and he too confirmed the order of dismissal by the Deputy Commissioner. Thereafter the suit was filed on 10.2.1965 to set aside order. According to the learned counsel, though the principle of res judicata is not applicable, yet the suit is not maintainable under O.2, Rule 2, C.P.C., and on the question the equitable doctrine of the principle of election. According to the learned counsel, plaintiff wanted only hereditary trusteeship. If it is a private temple, he should have his claim for the same in the earlier suit. But, he objected the remedy for recognizing a hereditary trustee, and having failed in the above proceedings and also having failed attempt to obtain permission for withdrawing the suit with liberty to -file fresh claiming the relief that it is a private temple, he should be deemed to have given claim that the temple is a private temple. 7. In this connection, the learned counsel invited our attention to the decision of this Samudra Vijayam Chettiar v. Srinivasa Alwar, A.I.R 1956 Mad. 7. In this connection, the learned counsel invited our attention to the decision of this Samudra Vijayam Chettiar v. Srinivasa Alwar, A.I.R 1956 Mad. 301: (1956)1 M.L.J. wherein it was held: “Where a man is entitled to one of two inconsistent rights and he has with full knowledge done an unequivocal act indicating his choice of the one, he cannot afterwards pursue other which after the first choice is by reason of the inconsistency no longer open to Such cases do not require detriment to the other party as foundation for their obligation. Lord Blackburn said in Scarf v. Fardine, (1882) L.R. 7A.C. 345 at P. 360, quoting a passage from coke on Littleton:” Where a man has an option to choose one or other of the two inconsistent things, once he has made his election, it cannot be retracted, it is final and cannot be altered This passage as well as the law contained in it received express approval from Lord Atkin the House of Lords in United Australia Ltd, v. Banclay’s Bank Ltd.,L.R.1941 A.C.1 at 30, where the leaned Lord said: “On the other hand, if a man is entitled to one of two inconsistent rights, it is fitting when with full knowledge he has done an unequivocal act showing that he has chosen to he cannot afterwards pursue the other, which after the first choice is by reason of inconsistency no longer his to choose. Instances are the right of principal dealing with agent for an undisclosed principal to choose the liability of the agent or the Principal right of a landlord where forfeiture of a lease has been committed to exact the forfeiture to treat the former tenant as still tenant and the like. To those cases, the statement of Blackburn in Scare v. Fardine, (1882) L.R. 7 A.C. 345 at 360 applies ’ where a man has opinion to chose one or other of two inconsistent things when once he has made his election it cannot be retracted”. The views in the above decision were affirmed by a Division Bench of this Court Margachari, V.K v. M.Krishnaswami Mudaliar etc., 97 L.W.562. It was further held: “This principle has been followed by Rajagopala Ayyangar, J., in R.Sumudra Vijayan Chettiar v. Srinivasa Alwar and others, (1956)1 M.L.J. 276 :69 L. W. 62. The views in the above decision were affirmed by a Division Bench of this Court Margachari, V.K v. M.Krishnaswami Mudaliar etc., 97 L.W.562. It was further held: “This principle has been followed by Rajagopala Ayyangar, J., in R.Sumudra Vijayan Chettiar v. Srinivasa Alwar and others, (1956)1 M.L.J. 276 :69 L. W. 62. The same principle has accepted by a Bench of this Court in L.Shanmugham Pillai v. S.Shanmughm Pillai, (1967)2 M.L.J. 581 : A.I.R.1968 Mad, 207:80 L.W. 458, Natesan, J., speaking for the Bench, thus: “ The doctrine of election is the principle that the exercise of a choice by a person himself of his own free will to do one thing or another binds him to the choice which he voluntarily made, and is founded on the equitable doctrine that he who accepts benefit an instrument or transaction of his choice must adopt the whole of it and renounce everything inconsistent with it. The Court exercising jurisdiction in equity will bind him election and precluded him from going behind the same”. Applying the ratio to the facts of this case, the learned counsel drew the attention of court to issue No.4 in the earlier suit O.S.No.557 of 1955 on the file of the First Assistant Civil Court, Madras filed by the plaintiff, who is the first respondent herein, which is marked as Ex.B-10. Issue No.4 in the said suit is: ‘Is the suit temple a private one? “In para 19 of Ex.B- 10, it was observed: “P.W.1 has not proved about temple being private to the exclusion of others” In para 21 it was observed as follows: “Ex.B-1 was filed for a declaration of plaintiff’s hereditary trusteeship of the temple comes under Sec.57(b) of the Act. No claim was made that the temple belongs to plaintiff’s and that they are entitled to possession on that ground. The petition proceeded the strength of the suit temple being a public temple. Therefore the question whether it private temple cannot and does notarise here. If the plaintiffs claim it as a private temple, they must have proceeded under Sec.57(a) and should have prayed for such relief, they have not done as seen from Ex.B-1. The petition proceeded the strength of the suit temple being a public temple. Therefore the question whether it private temple cannot and does notarise here. If the plaintiffs claim it as a private temple, they must have proceeded under Sec.57(a) and should have prayed for such relief, they have not done as seen from Ex.B-1. Sec.57(a) read with Sec.6(15) takes one “ temple ” which under: Sec.6(20) means a place by whatever designation known, used 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 there of as a place of public religious worship". In para 22 it was held: "The question canvassed in Ex.B-1 was only in respect of right of hereditary trusteeship this institution and not whether it was a religious institution". Ultimately the said suit was dismissed. The plaintiff therein filed Appeal No.14 of 1960 the file of this court. While the appeal was pending, the plaintiff filed C.M.P.No.5405 of 1962 praying to permit the plaintiff to withdraw the said suit with liberty to establish his claim proceedings before the Deputy Commissioner, Endowment Board, and also the appeal 14 1960 preferred to the High Court against decree of the City Civil Court, Madras O.S.No.557 of 1955. The said petition was dismissed. It was admitted in the said application that the plaintiffs filed the petition under Sec.57(b) of the Hindu Religious and Charitable Endowments Act and the Deputy Commissioner gave a decision in favour of the plaintiff recognising his right to be hereditary trustee of the temple. It was contended in the High Court that there was a formal defect in the prior petition, within the meaning of 0.23, Rule 1,2(a), C.P.C., and hence permission can be granted to the plaintiff to withdraw the suit. The contention was repelled by this Court and it was observed that "A formal defect connotes defect of a kind not affecting the merits of the case. But an omission to include all causes of action which the plaintiff has against the defendants, will not be a formal defect within the meaning of this rule. In the present case, it was open to the plaintiff to have contended before the Deputy Commissioner that this institution was a private temple, and that the Board had no jurisdiction to appoint any trustee whatsoever. In the present case, it was open to the plaintiff to have contended before the Deputy Commissioner that this institution was a private temple, and that the Board had no jurisdiction to appoint any trustee whatsoever. But, instead of doing so, the plaintiff applied to the Deputy Commissioner for the relief of recognising him hereditary trustee, which carries with it an admission, that the temple is a public religious institution, over which the Hindu Religious and Charitable Endowment Board has jurisdiction. Therefore, the omission to contend in the prior application that the temple is a private institution and that the Board has no jurisdiction to appoint any trustee for it, is not a formal defect". Consequently the petition was dismissed. It is to be noted that A.S.No.14 of 1960 was also dismissed. 8. In the present suit, defendants 1 and 2 contended in para 2 of the written statement that the-, present suit is false, vexatious and is a desperate attempt to continue the litigation which was already closed under a former judgement of the High Court in A.S.No.14 of which recognised and proceeded on the footing that the suit temple is a public temple. In same appeal, an attempt was made in C.M.P.No.5405 of 1962 for permission to file a suit to establish the private character of the temple and to grant leave to withdraw the out of which the Appeal No.14 of 1960 arose and it was rejected. It was held that having raised the contention that the plaintiff was a hereditary trustee and thereby impliedly conceding that it is a public temple is estopped from filing a second suit for getting declaration that the temple is a private one and outside the scope of the Hindu Religious Charitable Endowment Act. These judgments are conclusive in the matter and the plaint liable to be dismissed in limine on this ground alone. On these allegations issue No.2 framed to the effect, "Is plaintiff estopped from filing this suit as he claimed hereditary trusteeship in the prior proceedings?" Issue No.4 is, "Are the prior proceedings not binding on the plaintiff?". These judgments are conclusive in the matter and the plaint liable to be dismissed in limine on this ground alone. On these allegations issue No.2 framed to the effect, "Is plaintiff estopped from filing this suit as he claimed hereditary trusteeship in the prior proceedings?" Issue No.4 is, "Are the prior proceedings not binding on the plaintiff?". The trial Court found issue No.2 against the defendants distinguishing decision of this court reported in Elumalai Chety v. Commissioner, H.R. & C.E., Madras, L.W. 260, wherein it was held: "This petitioner moved the Board to recognise him as a hereditary trustee on the footing this is a public temple having got himself recognised as such and obtaining all advantages incidental thereto, he is now turning round and asking that the temple declared to be a private one and in which case the Board will have no jurisdiction whatsoever and no question of recognising this petitioner as hereditary trustee or otherwise, would The petitioner on the principles of equitable estoppel cannot be allowed to do so! “ According to the trial Judge, in the instant case, since the plaintiff applied for recognition his hereditary trusteeship and since it was negatived by the authorities and the said have been confirmed by courts also, the said decision is not applicable. We are unable agree with his view. The question involved is whether the plaintiff having chosen to remedy for declaring him as the hereditary trustee of the suit temple on the footing a private temple and subjected to himself to the jurisdiction of the Hindu Religious Charitable Endowment Board authorities, is it open to him to put forward now that temple is a private temple and to apply for a declaration that it is a private temple. The fact that he failed in the earlier proceedings would be of no consequence. The fact that he failed in the earlier proceedings would be of no consequence. Under issue trial Judge held against the plaintiff and further held that the earlier proceedings are on him and the plaintiff is not entitled to ignore the same on the ground that the agent acting negligently and had therefore fraudulently failed to safeguard interest of the It was contended that the learned single Judge had not considered the scope of contention regarding the plea of estoppel on the ground of election, but only considered question regarding res judicata or bar under O.2, Rule 2, C.P.C., and observed that the of res judicata or bar under O.2, Rule 2, C.P.C., was never raised in the pleadings filed defendants 5 to 7. It was also observed that ” unless a plea had been raised and issues framed and parties gone on trial on such pleas and issues the learned counsel respondents 5 to 7 cannot be permitted to raise these pleas at the appellate stage further stated by the learned single Judge that the plaintiff raised the plea that the temple is a private temple in O.S.No.557 of 1955 and that it is unnecessary to give a finding in the present suit. Both the reasons of the learned single Judge are not correct, as brought to the notice of this court that such a plea was raised and issue No.2 was framed. Further, the plea raised regarding the suit temple, whether the suit temple is a private temple, has been negatived, and in view of the fact that the suit itself was filed on ground that the suit temple is a public temple and the plaintiff sought for declaration hereditary trusteeship, the question of res judicata does not arise. On the other hand, learned counsel for the plaintiff first respondent, Mr.T.R.Rajagopalan submits that during pendency of the appeal, itself, the plaintiff filed an application before the Commissioner declare the suit temple as a private temple and the earlier proceedings wherein the relief for a declaration of hereditary trusteeship, would not operate as res judicata and that cannot be any estoppel. In this connection, he drew the attention of this Court to decision reported in Commissioner, H.R. & C.E., Madras v. Viswanatha Gurukkal, 87 160. In this connection, he drew the attention of this Court to decision reported in Commissioner, H.R. & C.E., Madras v. Viswanatha Gurukkal, 87 160. On going through the above decision, we find that the said decision is not at all helpful for deciding the issue, as that was a case of rival claim for trusteeship between two private parties. The question that arose for consideration was whether the earlier proceedings, wherein the claim was made by both the parties for declaration that they are the hereditary trustees of the temple and which was dismissed, would operate as res judicata. that subsequently the Department itself treated them as hereditary trustees and the Committee appointed a third party as a trustee. It was challenged and in the proceedings it was contended that the earlier proceedings would operate as res judicata the circumstances, it was held as follows: “In this case, the question whether the trusteeship of the temple was hereditary or not, not in issue between the parties in the earlier proceedings and consequently, the D.C., no jurisdiction whatever to decide a question which was not raised before him. Therefore, he had rendered a finding on that question which was not in controversy or dispute before him, his finding cannot be said to be final or conclusive so as to bar the agitation of the question in a properly framed proceeding instituted subsequently. In this view the earlier orders of the D.C., and the Commissioner on appeal therefrom, did not bar the application filed by the plaintiffs herein before the Deputy Commissioner under Sec.63(b) of Act 22 1959” . In the said case, the earlier decision of this Court reported in SastriAmmal Pravalavarne,Naicker, 68 L. W. 777 was cited, wherein it was held: “ If the dispute is whether the office of trustee of a given religious institution is hereditary, would certainly come within the scope of Sec57(b). In my opinion, that is all that provides for. A dispute between the claimants to succeed to an office, which it is all hands is hereditary, is in my opinion not within the scope of Sec.57 (b) of 1951”. After quoting the above observations, it was held in Ramasamy Naidu v. Commissioner, & C.E., Madras, 87 L.W 160: “This view was shared by Veeraswami, J. (as he then was) in Chinnathambi Mamundi Moopan, (1966)1 M.L.J. 361 : 79 L.W.I 73. After quoting the above observations, it was held in Ramasamy Naidu v. Commissioner, & C.E., Madras, 87 L.W 160: “This view was shared by Veeraswami, J. (as he then was) in Chinnathambi Mamundi Moopan, (1966)1 M.L.J. 361 : 79 L.W.I 73. We ourselves have approved correctness of the view of Rajagopalan, J. in our judgment in pages 479 Venugopala Chettiar v. Commissioner, H.R. and C.E., Madras, dated 27th August, It is only in the circumstances, the Bench came to the conclusion that” It is well the scope of the jurisdiction of the Deputy Commissioner under Sec.57 (b) of Act was to decide whether the trusteeship in relation to a religious institution was hereditary not, and not to decide whether a particular person was entitled to function as a trustee at a particular point of time with reference to a temple, the hereditary nature trusteeship of which had been admitted” . Such a question does not arise in this case is no rival claim to the office of hereditary trusteeship by two parties. The said decision at all relevant for deciding the issue in this case. As already observed in O. A.No.76 the plaintiff invited the jurisdiction of the authorities of the Hindu Religious and Endowment Department for declaring that he is the hereditary trustee on the ground suit temple is a public temple and it is not open to him now to say that it is a private and ‘that the authorities have no jurisdiction to decide the issue. Applying the ratio in the abovesaid cases, we find much force in the contention of the learned counsel respondents that the plaintiff was entitled to choose one of the two inconsistent namely, for a declaration that it is a private temple and for a declaration that the office trusteeship is hereditary, and since he elected one remedy, namely for a declaration is holding the office as hereditary trustee and pursuing the same, he cannot thereafter round and come forward with a prayer for the relief that the suit temple is a private It is not in dispute that both the reliefs are inconsistent with one another. By pursuing remedy for hereditary trusteeship, he is deemed to have given up the right that it temple. By pursuing remedy for hereditary trusteeship, he is deemed to have given up the right that it temple. As such, he is precluded from going behind the same as he is bound by his As rightly pointed out by the learned counsel for the appellants, in view of the conduct earlier case and, the conduct of the present case, on the equitable doctrine of election, plaintiffs claim must fail though not strictly on the ground aires judicata under C.P.C., or under O.2. Rule 2, C.P.C., and both the Courts below have not appreciated the said issue in proper prospective. Accordingly, we find this point in the appellant. 9. The next question that arises for consideration is, whether on the evidence Court below the Court below is justified in holding that it is a private temple and not temple. According to the learned counsel for the appellant, Mr.M.R.Narayanaswami, learned trial Judge as well as the learned single Judge of this Court are not proceeding that at the time of the origin of the temple, it was a private temple continued to be so and they failed to consider that there is no clinching evidence of the plaintiff to show that it is a private temple. According to the learned counsel, presumption is that in South India every temple is a public temple and the burden person who contends that it is a private temple to establish the same. In this connection learned counsel drew the attention of this court to various provisions of the Hindu and Charitable Endowments Act. As per Sec.1 (3) the said Act, the said Act applies Hindu public religious institutions and endowments including the incorporated Devaswoms and Unincorporated Devas-woms. As per Sec.6(11), hereditary trustee means the trustee of a institution, the succession to whose office devolves by hereditary right or is regulated usage or is specially provided for by the founder, so long as such scheme of succession force. Sec.6(18) deals with the definition of religious institution, and it means a temple or specific endowment. In Sec.6(20) temple has been defined as a place by whatever designation known used as a place of public religious worship, and dedicated to, or benefit of, or used as of right by the Hindu community or any section thereof, as a public religious worship. In Sec.6(20) temple has been defined as a place by whatever designation known used as a place of public religious worship, and dedicated to, or benefit of, or used as of right by the Hindu community or any section thereof, as a public religious worship. In the instant case, according to the plaintiff, the temple is by late Raja Iswardoss Daya-want Bahadur and that it was his private property death, his son T.Lakshmi Doss and grandson T.Venkata Prasad became the owners and were in management of the same. Since they became insolvents, their estate including suit temple and the right to manage the same, vested with the Official Assignee in I.P.No.50 of 1924. In the subsequent suit, C.S.No.545 of 1926 there was a consent decree virtue of the same, the ownership, possession and management were vested in the and the Official Assignee, Madras executed necessary documents on 28.8.1931. These all evidenced by Exs.A-1 to A-3. The learned counsel for the appellants contended though there was not much of information by way of record as to what took place regarding the management up to this period, it is not in dispute that in 1946 a complaint was the residents of the locality where the temple is situate. Further, it is only the residents Raja Hanumanthala Street, Triplicane, who have contributed funds for construction and they have maintained the same as public temple all along and the family of Raja Iswardoss Dayawant Bahadur became insolvents and ceased to have any interest in the temple any event the temple was abandoned and the residents took interest in or about 1946 they renovated the temple and performed the Kumbabhishckam. From that time, are being appointed once in 5 years by the H.R.& C.E., Department and the appointed trustees are managing the temple all along. In this connection, the learned counsel drew attention of this court to the evidence of D.Ws.1 to 3. D.W.1, who was a Headmaster who was appointed as a trustee by the Endowment Board in 1951 along with one Lakshmilal Naidu, has deposed that he was appointed as trustee for 3 times of 5 years each 1951 to February, 1966 and that defendants 5 to 7 became trustees after him and others. The suit temple is a Siva temple and a Gurukkal works in the temple. The temple is open public for worship. The suit temple is a Siva temple and a Gurukkal works in the temple. The temple is open public for worship. There is no restriction for admission to the temple. No fee is collected admission for worship. Donations from public subscription from public and offering of public are the only source of income for the temple. There is Bank account for the temple. is the Managing Trustee who pays for the Gurukkal. It is further stated that the deity taken out on procession and that they are conducting Brahmotsawam. There is a Hun the temple. Public contribute money to the hundial. The temple is open from 6 A.M. to P.M. for worship by the public. According to him, not less than 100 worshippers come in morning and the evening daily. The trustees have no right to exclude anybody in the temple. He has done kumbabishekam in 1954 and also renovated the dilapidated vimanam and gopuram in 1954. In 1964, he consecrated temples of Lord Ganesh, Lord Subramaniya and Lord Dakshinamoorthy and at that time performed another Kum-babhishekam. His further evidence is that Archa-nas are performed in the temple by the public. Naivethiyam prepared in the temple madapalli and offered to the deity. He has categorically stated that his knowledge, the plaintiff never came to the temple at any time. Nothing tangible was elicited in cross-examination except stating that though he knew about the temple from 1941, he knew the temple only from 1948 as a regular worshipper. It was elicited that did not know who built the temple originally. He categorically denied that the worship in temple is confined only to the people who get the consent of the plaintiff. His evidence not been challenged materially with regard to the character of the temple as a public one. The fact that from 1946 to 1951 and from 1951 to 1966 he and his predecessor were appointed as trustees was not disputed. D.W.2 is a Gurukkal of the suit temple from 1952. He has deposed that it is only the trustees who paid his salary and rice for offering pooja temple. This witness belongs to the office of hereditary Gurukkal. He would depose that suit temple is Siva Agama temple. Vinayagar, Murugan, Dakshi-namurthi, Mahavishnu, Durgai, Kameswarar, Kamakala Ambigai and Navagraham deities were consecrated temple. There were Nandhi Balibeedam and Thuvasthambam. Besides, there are Praharam, Artha Mandapam and Maha Man-dapam. This witness belongs to the office of hereditary Gurukkal. He would depose that suit temple is Siva Agama temple. Vinayagar, Murugan, Dakshi-namurthi, Mahavishnu, Durgai, Kameswarar, Kamakala Ambigai and Navagraham deities were consecrated temple. There were Nandhi Balibeedam and Thuvasthambam. Besides, there are Praharam, Artha Mandapam and Maha Man-dapam. Daily poojas were performed five times monthly utsavams were done according to Agamam. Brahmotsavam was conducted days every year. There are vaganams for deities and the deities are taken in procession street. No permission is required to enter the temple. People belonging to all castes come and worship from 6 a.m. to 12 noon and from 4 p.m. to 9.30 p.m. For performing Archanai, worshipper has to obtain chit from Devasthanam, and after the amount collected, the Archakas are paid half and the devasthanam was taking the remaining. There is a Hundial. Kumbabhishekams are performed. Collections are made for festivals well as for functions of the temple. According to him, in 1964 Anjaneyar deity consecrated by D.W.1 and he issued Ex.P4 notice in connection with the said celebrations. also produced other records Exs.P5 and P6 in regard to celebration of Kumbabhishekam other festivals. According to him, neither the plaintiff not his agent ever came to the and the temple is managed only by the trustees of the H.R.& C.E. Department and that in possession of the keys of the temple. His evidence has not been challenged on material particulars. It was elicited in cross-examination that he is aged 40 years at of the examination. In 1952 when he was appointed as Gurukkal, he came to know affairs of the temple. He emphatically denied that it is a private temple. However, he state that he is not aware as to when the temple was founded. D.W.3 is an official in Shell and he is a trustee of the temple from 1966. He produced Exs.B20 and B21, sanction order of the budget and Ex.B-22 report of the Verification Officer of the H.R. Department. It is clear from the evidence of these witnesses that from 1946 the temple under the control of the department and that it is being treated as a public temple and came to the temple as a matter of right and the public also contributed for the maintenance of the temple. It is clear from the evidence of these witnesses that from 1946 the temple under the control of the department and that it is being treated as a public temple and came to the temple as a matter of right and the public also contributed for the maintenance of the temple. The learned counsel for the appellants submitted that on the side plaintiff, except the plaintiff, who was examined on commission, no other witness examined and his evidence is also not in any way sufficient to hold that it is a private The learned counsel for the appellants pointed out that P.W.1 has categorically admitted the word ‘private’ before the word ‘temple’ is not there in Schedule C in Ex. A1 or in He has frankly admitted that he has no personal knowledge of the temple, during the Raja Ishwardosslala and he cannot say who built the temple. He has also stated that no accounts in regard to the income from 1931 to 1966 and that he has also no account show how much was spent by him on the suit temple. He was aged about 33 years, was examined on 24.1.1973. He has frankly admitted that he did not know the installation idols of Mahaganapathi and Murugan or building of Vimanam for Mahaganapathi Murugan. He also stated that he did not know whether any Kumbabhishekam was performed on 21.8.1964. He is unable to say how many sanctum sanctoriums are there in the temple praharams or about the physical features of the places where various idols are installed would state that he does not know the name of the poojari of the temple. According he attained majority in the year 1957. He did not know whether the residents of worship at the Kamakala Kameswari temple and whether celebrations of festivals Navarathri are performed in the temple and about the hours during which the temple opened. His evidence is not in any way helpful for deciding the question whether private temple. On the other hand, it only supports the case of the defendants that public temple. In this connection, the learned counsel for the appellants drew the attention this Court to various decisions wherein the question whether the temple is private or dealt with. His evidence is not in any way helpful for deciding the question whether private temple. On the other hand, it only supports the case of the defendants that public temple. In this connection, the learned counsel for the appellants drew the attention this Court to various decisions wherein the question whether the temple is private or dealt with. In Mahadeva Gurukkal v. Commissioner of H.R.E. Board, (1956)1 M.L.J. was held: "A temple which began as a private temple may, in course of time, become a public temple by express or implied dedication, the latter being proved by use of the temple by the public as of right and without taking any permission from anyone. Express dedication unnecessary to be proved where it is proved that the temple is used as of right by the community or any section thereof. There is no warrant for holding that once private, a temple will continue to be private. “In the absence of proof of express dedication. There is nothing in law preventing which began as private properly becoming public property later on. Where the evidence record conclusively proves that the Hindu public have been using the temple as a place public religious worship as of right, the definition in Sec.9(12) of the Madras Hindu Religious Endowments Act, 1927, applies to the institution”. In Nallakaruppan v. Commissioner, H.R & C.E., (1966)1 M.L.J. 109 .A.L.R. 1966 Mad. was held that “unlike the temples in Malabar and Kerala, there is a presumption in the of temples in South Indian, that they are public and the burden is on the party who that they are private to prove it.” In that case, the decisions in Mundacheri Koman Ahuthan Nair, A.I.R. 1934 P.C. 230: 151 I.C. 568 and Ramaswami Jayad Gounder Commissioner, H.R. and C.E., Madras, (1963)2 M.L.J. 28: A.I.R. 1964 Mad. 317, referred to. In T.V.Mahalingalyer v. State of Madras, A.I.R. 1980 S.C. 2036. Their Lordships of the Supreme Court held as follows: “It is undisputed law that so far as Tamil Nadu is concerned, there is an initial presumption that a temple is a public one, it being up to the party who claims that it is a private to establish that fact affirmatively. This initial presumption must be rebutted by clinching testimony and the crucial question is as to whether the public worship in the temple right. This initial presumption must be rebutted by clinching testimony and the crucial question is as to whether the public worship in the temple right. Ordinarily, there may not be direct evidence regarding the exercise of such right inference has to be drawn from a wealth of circumstances. The dedication to the public not be by a deed and may be spelt out of the circumstances present. The right of the present. The right of the public to worship is also a matter of inference. In the instant the temple itself is situate on government property, processions with the deity are taken and offerings are made, the structure especially of Gopuram and Mandapam also indicates the public nature of the temple. The fact that there had been contributions made public also leads to the conclusion that the temple was not a private one”. In Narayanana Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, 1960 S.C.J. A.I.R. 1960 SC. 100 at page 110, it was observed: “The question of intention to dedicate the place for the user of the public or of the public being as of right is necessarily a matter for inference from the institution and nature of the user and the way the institution has been administered..... once a long of user by the public for the purpose of worship is established, and the fact of a separate endowment is trust for the deity is also proved, it is fair to infer that the institution have been dedicated for user by the public unless the contrary is established-par when the character of the temple, its construction, the arrangement of the various parts the temple and the nature of the deities installed there are similar to what obtains admittedly public temples. Similarly, when user by the public generally to the extent to there is a worshipping public in the locality is established, it is not unreasonable to presume that the user by the public was as of right, unless there are circumstances clearly suggesting that the user must have been permissive or that the authorities in charge of the temple exercised such arbitrary power of exclusion that it can only be ascribed to the character of the institution”. In Ramasamy Naidu v. Commissioner, H.R. & C.E., Madras, 87 L.W. 595, after considering the above Supreme Court decisions and other decisions, a Bench of this court: “Held: that the institution in question does not bear the trapping of a private temple. On other hand, it is a public temple, as rightly pointed out by the trial Judge. The existence Moolasthanam, Mahamandapam, Prakaram, idols of Chief and other deities, Utsava daily poojas, special poojas and processions during Navarathri festivals, worship by the public belonging to different communities are all factors which positively give the undoubted impression that the temple is a public one. The public have been visiting the temple performing poojas therein and there are no circumstances suggesting that the user permissive or that the authorities in charge of the administration of the temple performing poojas therein and there are no circumstances suggesting that the user permissive or that the authorities in change of the administration of the temple never exercised the right so as to exclude such members of the visiting public” 10. The learned Judges in the above case also took into consideration the existence of hundies in the temple to which the public were contributing liberally, as a clinching factor. The learned Judges also took into consideration another factor of the appointment trustees for a continuous period of 20 years by the Religious Endowments Board administer the affairs of the institution and consequently the learned Judges held that only a public temple and not a private temple. The above ratio is in all fours applicable to facts of the instant case. It is needless to mulct the other decisions on this point. As already discussed the evidence of D.Ws.1 to 3 has not been challenged and it is not in dispute that least from the year 1946 the temple is being managed by the trustees appointed by Board continuously. Further, there is acceptable evidence that the public are visiting temple freely without any interruption, that they have been contributing, that idols were installed that poojas are performed regularly to the deities, that worship is being done, there are hundials in the temple to which the public are contributing and that there Mahamandapams, Moolasthanam and Praharams. Various deities are installed, processions are taken. Festivals are conducted. Special poojas are performed on Navarathri and other festival days. Various deities are installed, processions are taken. Festivals are conducted. Special poojas are performed on Navarathri and other festival days. The people in the locality belonging to different religion offer their worship. These clinching circumstances suggesting that the temple is only a public one and not a one. On a careful analysis of the entire materials, we find that the court below has properly appreciated the various factors and the and the learned Judge was carried away the transactions under Exs.Al to A3. Hence, we find this point also in favour appellants. 11. Next, we have to consider the question of allowing or disallowing the petition C.M.P.No. 15683 of 1989 filed by the second respondent herein who is the fourth defendant in the (Commissioner, Hindu Religious and Charitable Endowments, Madras) and who filed appeal A.S.No.730 of 1977. It must be noted that the present appellants are respondents to 7 in A.S.No.730 of 1977 and they are the trustees appointed by the Commissioner, C.E., Department, for the suit temple. They filed the appeal A.S.No.730 of 1977 challenging the judgment and decree of the trial Court in O.S.No.547 of l965 and their appeal dismissed for default for not complying with the pleading set. However, they were permitted to argue the appeal. It is observed in the judgment: “The learned counsel for the respondents 5 to 7 (defendants 5 to 7 in the suit) Vehemently contended that by not asking a relief of declaration that the suit temple is a private in the earlier suit, the plaintiff is barred by the principle of res judicata as well as under Rule 2, C.P.C., from again agitating the issue that the suit temple is a private one ” The Court negatived the same on the ground that no plea was raised and no issue framed and they cannot be allowed to agitate the same. Incidentally it was referred there was no separate written statement filed by defendants 5 to 7. The learned counsel the plaintiff submitted that the appeal filed by defendants 5 to 7 is incompetent and as the question of transposing the second respondent, namely, Commissioner, H.R. & Board, as the 4th appellant does not arise as it is barred by res judicata under Sec.11, Code of Civil Procedure. The learned counsel the plaintiff submitted that the appeal filed by defendants 5 to 7 is incompetent and as the question of transposing the second respondent, namely, Commissioner, H.R. & Board, as the 4th appellant does not arise as it is barred by res judicata under Sec.11, Code of Civil Procedure. In this connection, the learned counsel relied on the decision of the Supreme court in Sheodan Singh v. Daryao Kunwar, A.I.R. 1966 S.C. 1332: 1968 S.C.J. 768, wherein it was held: "Where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, limitation or default in printing, with the result that the trial court’s decision confirmed, the decision of the appeal court will be res judicata and the appeal Court must deemed to have heard and finally decided the matter. In such a case the result decision of the appeal court is to confirm the decision of the trial court given on merits, that is so, the decision of the appeal court will be res judicata". As rightly contended by the learned counsel for the appellants, the said decision is not to the case of the plaintiff, as in the instant case there are no two suits but in the very suit, decree was passed as against them and two appeals were filed and one of the was dismissed on the ground of default in furnishing pleading set. Yet, respondents the present appellants, were allowed to argue in the appeal filed by the second respondent herein. It is to be noted that the interest of the second respondent. Commissioner, C.E., Board and that of the appointed trustees, namely, the appellants herein, is one same, and the second respondent is also concerned in fighting for the same cause public temple and not a private temple and the plaintiff has title to it whatsoever. other hand, the learned counsel for the proposed fourth appellant as well as the appellants to 3 drew the attention of this Court to the decision in Narhari v. Shanker, A.I.R. 1953 419, where, while considering the Limitation Act when two appeals were filed in one suit one appeal was dismissed, it was thus stated: "From the decree of trial Court in favour of the plaintiff two separate appeals were taken two sets of the defendants. The appellate Court allowed both the appeals and dismissed plaintiffs suit by one judgment and ordered a copy of the judgment to be placed on the other connected appeal. The plaintiffs preferred two appeals. One of the appeals time barred and on the principle of ‘res judicata’ the High Court dismissed both the appeals. Held, that it was not necessary to file two separate appeals in this case. The question judicata’ arose only when there were two suits. As there was one suit and both the were in the same case and based on the same judgment and the matter decided concerned the entire suit, the principle of res judicata did not apply". The above view was affirmed in Sheodan Singh v. Daryao Kunwar, (1966)2 S.C.J. 772. In Maddanappa v. Chandramma, A.I.R. 1965 S.C. 1812 at page 1816, it was held: "The power under this provision is exercisable i.e., O.1, Rule 10(2), C.P.C., by the court suomotu. As pointed out by the Privy Council in Bhupendra v. Rajeswar, 58 I.A. 288: 1931 P.C. 162, the power ought to be "exercised by a court for doing complete between the parties. Here both the plaintiff and the first defendant, they have been considered and adjudicated upon by the High Court while allowing her appeal. Since the Court upheld the special defences urged by defendants 3 to 8 and negatived the claim unnecessary to order her transposition as plaintiff. But the High Court could while upholding her claim, well have done so. Apparently it either over looked the technical defect or felt under 0.41, Rule 33, it had ample power to decree her claim". The learned counsel for the plaintiff is not seriously challenging the proposition that the has got ample power to order transposition if it is necessary for final and complete adjudication of the dispute between the parties and to avoid multiplicity of proceedings, it is purely a discretion of the court and that it can be done at any stage. It was also brought to the notice of this court that the appellants herein filed petition C.M.P.No.4772 of 1975 to restore the appeal which was dismissed for default for furnishing pleadings and the same was not disposed of; but the appellants were allowed take part in the appeal filed by the second respondent who is sought to be transposed as fourth appellant. The learned counsel for the appellants drew the attention of this Court 0.41, Rule 4. C.P.C., which reads as follows: “Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs, or to all the defendants, any one of the plaintiffs, or of the defendants may appeal from the whole decree, thereupon the appellate court may reverse or vary the decree in favour of all the plaintiffs defendants, as the case may be”. The learned counsel also drew the attention of this Court to 0.41, Rule 33, C.P.C., reads as follows: “The Appellate Court shall have power to pass any decree and make any order which to have been passed or made and to pass or make such further or other decree or order the case may require, and this power may be exercised by the court notwithstanding the appeal is as to part only of the decree and may be exercised in favour of all although such respondents or parties, although such respondents or parties may not have filed appeal or objection and may, where there have been decree in cross-suits or where two more decrees are passed in one suit, be exercised in respect of all or any of the decrees although an appeal may not have been filed against such decree ” . The learned counsel submitted that the Code of Civil Procedure is applicable to Letters Patent Appeal under Clause 15, in view of Clause 39. According to the learned counsel the appellants, the right of appeal is available to any party to the proceedings and pointed out that Sec.96, C.P.C., refers to ‘decree’, whereas Clause 15 of the Letters Patent Appeal refers to ‘judgment’. According to the learned counsel, the objection by the plaintiff only technical and it is only purely the discretion of the Court and if the court feels that transposition is necessary for proper and final adjudication it can do so. The power transposition cannot be challenged. We find much force in the said contention. According to the learned counsel, the objection by the plaintiff only technical and it is only purely the discretion of the Court and if the court feels that transposition is necessary for proper and final adjudication it can do so. The power transposition cannot be challenged. We find much force in the said contention. In view of circumstances of the case and since the appellants in the case are the appointed trustees the second respondent and both of them represent the temple and put forth the contentions and in view of the fact that the second respondent herein is also a party to appeal in A.S.No.730 of 1977, certainly he can prefer this appeal irrespective of the fact the appeal filed by the present appellants, separately, was dismissed for default and cannot be said that the appeal filed by them is itself incompetent and is liable to dismissed. As already discussed, in view of the question involved in this appeal, we the view that the transposition is absolutely necessary for proper and final adjudication the dispute and to avoid multiplicity of proceedings. Accordingly, we allow C.M.P.No.15683 of 1989 for transposition. 12. In the result, this appeal is allowed; the judgment and decree passed by the single Judge of this Court in A.S.No.730 of 1977 confirming the decree and judgment trial Court in O.S.No.547 of 1965, are hereby set aside and the suit filed by the respondent herein in O.S.No.547 of 1965 is dismissed. Each parties are directed to their respective costs in this appeal. Appeal allowed.