Judgment :- 1. The defendants against whom the suit has been decreed by the trial court have come up with this appeal. The suit has been filed under S. 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 challenging an order passed by the first defendant commissioner, confirming an order passed by the second defendant Deputy Commissioner or H.R. & C.E. Board, holding that the temple involved in the suit is a public temple rejecting the plaintiffs claim that it is a private temple or atleast he is a hereditary trustee. 2. The temple in question is known as Sri Ayyanar temple, and it is situated at Sozhampattai, Mayuram Taluk, It is not in dispute that it is an ancient one. The case of the plaintiff is that the temple was constructed by his ancestor viz., his senior paternal uncle Sadasivam Pillai in or about 1885 and it is situate in the patta land of the plaintiffs family. The temple along with the properties dedicated to it was inherited by the plaintiffs father under a registered Will dated 12th Panguni of 1888 executed by the said Sadasivam pillai. Under the will Sadasivam pillai also endowed a portion of his property for maintenance and upkeep of the temple. Sadasivam pillai was managing the affairs of the temple and he was performing the religious rights in the temple. There was no public contribution to the temple from any quarters. No public was allowed as of right to worship is the temple. Thus the temple is a private temple of the plaintiffs family. After the death of Sadasivam pillai the temple and its properties were, as per the terms of the will, managed by the plaintiffs father till his death in or about 1936 and there after the plaintiff was managing. The plaintiff appointed a Gurukkal for the purpose of performing daily pooja on payment of 30 Kalams of paddy per year as nis salary and he also appointed a poosari for the sub-deities on payment of 6 Kalams of paddy per year. While so the Assistant commissioner, Hindu Religious and Charitable Endowments Board initiated proceedings to appoint trustees from the public totally neglecting the continuous management of the temple by the plaintiffs family. The plaintiff objected to the same and filed an application under Ss. While so the Assistant commissioner, Hindu Religious and Charitable Endowments Board initiated proceedings to appoint trustees from the public totally neglecting the continuous management of the temple by the plaintiffs family. The plaintiff objected to the same and filed an application under Ss. 63-A and 63-B of the Act in O.A. No. 14 of 1975 to the Deputy Commissioner but the authorities rejected the objection, and dismissed the application on 12.8.1975. He filed ah appeal to the Commissioner in A.P. No. 5 of 1976 against that order but the appeal was also dismissed on 25.11.1976, on these grounds the plaintiff has prayed for declaration that the temple is a private temple or in the alternative to appoint the plaintiff as a hereditary trustee of the temple. 3. The defendants contended that the temple is a public temple and not a private temple as claimed by the plaintiff. They denied that the temple was founded and constructed by Sadasivam pillai as alleged by the plaintiff. They contended that in the Will Sadasivam pillai of course has appointed Samiya Pillai plaintiffs father as manager of the temple but he has not created any line of succession. The temple owns properties other than those dedicated by Sadasivam pillai under the will. Public offerings are made to the deity. Therefore the suit is liable to be dismissed. 4. On consideration of the evidence adduced in the case the learned Subordinate Judge, Mayuram, accepted the case of the plaintiff that it is a private temple belonging to the plaintiffs family and therefore the orders passed by the Deputy Commissioner and Commissioner are liable to be set aside. In this view he passed a decree declaring the suit temple as the private temple of the plaintiffs family. Against this the defendants have come up in appeal. 5. It is contended by the learned Government pleader appearing for the appellants defendants that the finding of the trial Court that the suit temple is a private temple is contrary to the evidence and therefore it is erroneous, and he further argued that there is no proper prayer in the plaint and therefore the suit as framed is not maintainable. He then argued that notice under S. 80, C.P.C. should have been issued to the defendants but that having not been done the suit is bad. 6. He then argued that notice under S. 80, C.P.C. should have been issued to the defendants but that having not been done the suit is bad. 6. Regarding the first point raised by the learned Government pleader, after hearing both sides and carefully going through the evidence I find no reason to differ from the finding of the trial court that the suit temple is a private temple. It is not in dispute that Sadasivam pillai executed Ex. A-1 will and in that will he has endowed an extent of 16 mahs of land to the temple. In the same will he has also stated that after his life time his senior paternal uncles son Samiya pillai will take up the management of the temple. This recital indicates that Sadasivam pillai had been managing the temple. As said above Sadasivam pillai had dedicated 16 mahs of land to the temple. There is no clear evidence as to whether there was any other land belonging to the temple before then. The fact that Sadasivam pillai was managing the temple and he exercised a right to appoint his successor in management indicates the possibility of himself or his family having built the temple. From this it is more probable that the temple had been a private one rather than a public one. In accordance with what is stated in the will Ex. A1 of Sadasivam pillai, after the life-time of Sadasivam pillai Samiya Pillai was in management of the temple throughout till his death in 1936, and after his death the plaintiff has been in management. It does not at all appear that there was any interruption with the management of the temple by the plaintiffs family from any quarters at any time. It is not in dispute that the plaintiff has appointed a Gurukkal who is P.W. 2 and also a Poosari. It is also not in dispute that as spoken to by the plaintiff and P.W. 2 Gurukkal the temple key would be in the possession of the plaintiff only. Ex. A7 dated 30.8.1953 is a registered agreement between one Rajamanickam Poosari of the temple and the plaintiff as regards the terms of service of the poosari. In this document it has been stated that the temple had been constructed by the ancestors of the plaintiff in their private land. Ex. A7 dated 30.8.1953 is a registered agreement between one Rajamanickam Poosari of the temple and the plaintiff as regards the terms of service of the poosari. In this document it has been stated that the temple had been constructed by the ancestors of the plaintiff in their private land. Considering the fact that this document is dated as early as 30.8.1953 there is no reason to believe that purposely a false statement had been made. However it is argued by the learned Government pleader that this document has been purposely created with a view to defeat the effect of the Madras Hindu Religious and charitable Endowments Act. 1951 (Act 19 of 1951) on the suit temple. But when the document was filed through the plaintiff (P.W.I) no suggestion to that effect has been made to him, and even in the grounds of appeal no such plea has been raised, In this circumstance I do not think that the said recital in Ex. A7 can be rejected without giving any credence to it. Even in the plaint it has been stated that the temple has been constructed in a private land and that has not been denied. This is certainly a strong circumstance that would go to show that the temple could be a private temple rather than a public temple. Besides the plaintiff (P.W.I), P.W. 2 Gurukkal and P.W. 3 Pakkirisamy have been examined on the plaintiffs side. P.W. 2 Gurukkal has testified that for the past 22 years he has been doing pooja in the temple and the temple is in the management of the plaintiff and the temple keys are with him (plaintiff), that there is no Hundial in the temple and there is no festival also, and only with the permission of the plaintiff he would do Ab-his hekams for the public. P.W. 3 Pakkirisamy has deposed that he belongs to the village where the temple is situate and the temple belongs to the plaintiffs family He also states that only with the permission of the plaintiff the public worship in the temple. The above evidence of P.W. 2 and P.W. 3 shows that there is no public worship in the temple as a matter of right and only with the permission of the plaintiff the public will worship. The above evidence of P.W. 2 and P.W. 3 shows that there is no public worship in the temple as a matter of right and only with the permission of the plaintiff the public will worship. On the side of the defendants not a single witness from the public has been examined and no reason whatsoever has been given for the same. The only two witnesses examined on the side of the defendants viz. D.W.s. 1 and 2 are employees of the H.R. & C.E. Department. As pointed out by the trial Court D.W. 1 Narayanan who is an Inspector of the H.R. & C.E. Department claims to have visited the temple five times, and according to him there is Pragaram, Vimanam as well as Madappalli in this suit temple. He has further stated that during the festival of Vikasi Visagam, Kavadi also would be taken by the public, and that the Utsava Murthy belonging to the suit temple and been first entrusted with Thanthondriswamy temple and then with Mulavar Margasagayeswarar temple for safe keeping. D.W. 2 Pandurangam, Executive, Officer of Thanthondriswamy temple has given evidence corroborating the evidence of D.W. 1. As rightly stated by the trial Court only from the fact that there are Pragaram, Vimanam and Madappalli etc. in the temple the temple cannot be said to be a public temple. It cannot be stated that a private temple will not have these things. Persons who construct private temples may like to have these things also in their temples. Therefore the evidence of D.Ws. 1 and 2 will not help much the defendants to show that the suit temple is a public temple. The learned Government Pleader would contend that in the Will the suit temple has been described as a village temple But from a careful reading of the document it can be seen that the executant did not mean that the temple belongs to the village. On the other hand having first given the name of the village, then while latter referring to the temple he has stated to the effect that the Ayyanar temple in the said village. On the other hand having first given the name of the village, then while latter referring to the temple he has stated to the effect that the Ayyanar temple in the said village. Tamil The learned Government Pleader would rely on a decision of the Supreme Court in T.V. Mabalinga Iyer v. The State of Madras and another AIR 1980 S.C. 2036 = 1980 U.J.(S.C.)865 wherein the Supreme Court has stated that in so far as Tamil Nadu is concerned there is an initial presumption that the temple is a public one. But in the instant case the evidence let in by the plaintiff which has been discussed above has rebutted that presumption. From all these the only conclusion that can be arrived at is that the evidence indicates that the temple is a private temple and there is nothing on the basis of which it can be held to be a public temple, or it was a private temple which was later endowed to the public. 7. As regards the second point raised by the learned Government Pleader, it is pointed out that there is no prayer in the plaint for cancellation or modification of the order of the Commissioner for which a suit under S. 70 can be filed, and as such the suit is not properly framed. Of course there is no specific prayer for cancellation or modification of the order but it is prayed for declaration that the suit property is a private property and in the alternative for declaration that the plaintiff is a hereditary trustee. The effect of such a declaration would be to cancel or modify the order of the Commissioner. Thus considering the substance of the suit, not merely the form, it cannot be said that the suit has not been properly framed and therefore the suit is not sustainable. 8. As regards the third point raised by the learned Government pleader that there is no notice under S. 80, C.P.C., and therefore the suit is bad, such a contention has not been raised in the written statement, nor has it been raised in the grounds of appeal. No doubt a question of law especially which goes to the root of the matter can be raised at the appellate stage, and the question of notice under S. 80, C.P.C., can be taken if really there was no such notice sent. No doubt a question of law especially which goes to the root of the matter can be raised at the appellate stage, and the question of notice under S. 80, C.P.C., can be taken if really there was no such notice sent. In this case admittedly the plaintiff Balasubramaniam who filed the suit died during the pendency of the appeal and the appeal is being contested only by his legal representatives. If it had been contended in the written statement or atleast in the grounds of appeal that no notice under S. 80, CP.C, has been sent quite possibly the deceased plaintiff would have been in a position to say that a notice was sent. Now, he having died, his legal representatives will not be in a position to say that notice was sent or not. The fact that neither in the written statement nor in the grounds of appeal it is stated that no notice under S. 80, C.P.C., has been sent may also indicate that only because a notice has been sent this contention has not been taken. In this position, at this stage, the Government Pleader cannot be allowed to take this contention. 9. In the result, I find no merit in the appeal. Accordingly the appeal is dismissed. Considering the circumstances there will be no order as to costs.