Judgment :- 1. Plaintiff is the appellant in this appeal against the judgment and decree dated 13.3.1981 in O.S. No. 91/77 on the file of the Subordinate Judge, Kumbakonam. The suit is to set aside the dismissal order of the first defendant-first respondent-Commissioner, H.R. & C.E. Madras dated 20.4.1977 in A.P. No. 182/76 and for a declaration that the suit institution is not a religious institution or a temple coming within the purview of Tamilnadu Hindu Religious and Charitable Endowments Act (T.N. Act 22/59), hereinafter referred to as Act, and for consequential injunction. 2. The suit is under S. 70 of the Act and the above said A.P. No. 182/76 is the appeal by the plaintiff against the dismissal of his petition, O.A. No. 59/74, on the file of the second defendant 2nd respondent-Deputy Commissioner, H.R. & C.E. Tanjore for a declaration that the suit temple is not a temple coming under the Act and that it is a private temple and the H.R. & C.E. department has no control over the same. Both the respondents 1 and 2 and the trial court have concurrently held that the suit temple is not a private temple, but a public temple coming under the Act. 3. Now, in this appeal, the learned senior counsel for appellant, Mr. G. Subramaniam, initially argued that the burden of proving that the suit temple is a public temple, is on the respondents only. But this contention, is absolutely without any merit. The decision reported in T.V. Mahalinga Iyer v. State of Madras AIR 1980 S.C. 2036 has also held, 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 temple, to establish that fact affirmatively. Of course, this initial presumption must be rebutted by clinching Testimony and the crucial question is as to whether the public worship in the temple as of right. Ordinarily, There may not be direct evidence regarding the exercise of such right and Inference has to be drawn from a wealth of circumstances. The dedication to the public need not be by a deed and may be spelt out of the circumstances present. The right of the public to worship again is a matter of inference.” (emphasis supplied) 4. Ordinarily, There may not be direct evidence regarding the exercise of such right and Inference has to be drawn from a wealth of circumstances. The dedication to the public need not be by a deed and may be spelt out of the circumstances present. The right of the public to worship again is a matter of inference.” (emphasis supplied) 4. So, it is only to be seen whether the plaintiff has discharged this burden. The learned counsel for the respondents drew my altention to the following passages in the plaintiffs petition in the aforesaid O.A. No. 59/74, itself “The several poojas and Utsavams are purely for the Madhva Community to which the founder and the successors belong It is only the Madhva Community which participated in the Poojas and festivals narrated in paragraph 3 above.” The abovesaid petition is part of the file of the second respondents department and in the said file, another part, namely, the evidence recorded in the said petition before the second respondent, was alone marked as Ex. B1 in the present suit. On this ground, the learned counsel for the appellant sought to argue that the said petition, having not been marked as an exhibit separately, should not be looked into. But, there is no merit in this contention, since the said petition in O.A. No. 59/74, is virtually a part of the very record of the present case. So, when in the said petition itself, the plaintiff alleges that the poojas and Utsavams in the temple are purely for the Madhva Community and only the Madhva Community participated in the poojas and festivals of the temple, it is clear that the temple is dedicated for a section of the public, namely the Madhva Community. It is settled law that if the temple is even for a section of the public, it is only a public temple. Vide Deoki Nandan v. Muralidhar AIR 1957 SC 133 , wherein it has been held that “a religious endowment must be held to be private or public, according as the beneficiaries thereunder are specific persons or the general pubic or sections thereof’ (Emphasis supplied). 5. Further, as pointed out by the trial court, there is nothing to show, in Ex. Vide Deoki Nandan v. Muralidhar AIR 1957 SC 133 , wherein it has been held that “a religious endowment must be held to be private or public, according as the beneficiaries thereunder are specific persons or the general pubic or sections thereof’ (Emphasis supplied). 5. Further, as pointed out by the trial court, there is nothing to show, in Ex. A1, the oldest document of 1910 exhibited in the present case, that the public should not participate in the poojas of the temple or should not worship in the temple. Though in Ex. A2 the trustee appointment deed dated 13.10.55 it is mentioned for the first time that the suit temple has been treated as family private temple it is significant to note that it is also mentioned therein that in the event of failure on the part of the trustee concerned to nominate his successor, the Government shall intervene and appoint the successor from the members of the family. 6. So, there is no difficulty in holding that the plaintiff has not discharged his burden of proving that the suit temple is not a public temple, but only a private temple belonging to the family of the plaintiff. 7. The learned counsel for the appellant, no doubt also argued that there is no acceptable evidence on record to prove that there is dedication of the suit temple as public temple. He drew my attention to S. 6(2) and S. 6(18) of the Act. S. 6(18) defined the term “religious institution” as a math, temple or specific endowment. S. 6(20) defines the term, temple, as a place, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by the Hindu community or any Section thereof, as a place of public religious worship”, So a “temple is a religious institution and it should satisfy two ingredients, namely (1) it is used as a place of public religious worship and (2)(a) it is dedicated to, or for the benefit of, the Hindu Community or any section thereof, as a place of public religious worship or (b) it is used as of right by the Hindu Community or any section thereof as a place of public religious worship. This is also reiterated in Chinnammal v. Commr. This is also reiterated in Chinnammal v. Commr. H.R. & C.E. Madras 1989 (1) L.W. 348, cited by the learned counsel for the appellant himself. In the present case, from what is stated in the very petition O.A. 59/74 there is no doubt that the suit temple is used by Madhva Community, a section of the Hindu Community,” as a place of a religious worship. Since it is so used, it can be said to be used, by public and so, used as a place of Public religious worship. So, the first ingredient is satisfied. Nextly, on the same reasoning, it can be safely inferred that the suit temple was also dedicated for the benefit of Madhva community, a section of the Hindu Community as a place of public religious worship. Even otherwise, from what is stated in the above referred to petition O.A. No. 59/1974 it can certainly be concluded that the Madhva Community people used this suit temple as of right as a place of public religious worship. So, the second ingredient is also satisfied. In the light of the above conclusion, the other passages cited by the learned counsel for the appellant, taken out from AIR 1957 S.C. 133 , and dealing with Sankalpa, Uthsarga etc., in the matter of dedication of a temple, do not assume any importance in their application to the present case. Likewise, the other decision cited by him namely Commr. HR & CE, Madras v. Sethurama Pillai 1960 (1) M.L.J 157 (D.B) also has no application to the present case. The said decision has only held that when there is no proof that any dedication of the temple to the public, has been made or that the public worshipped in the temple as of right at any time, the institution is a private temple only. But, in the Eresent case, as I already pointed out, the plaintiff himself stated in his above said petition that the suit temple was for the benefit of the Madhva community and only the said community people participated in the poojas and festivals therein. Madhva Community being a section of public, it is clear in the present case, the temple is a public one. Madhva Community being a section of public, it is clear in the present case, the temple is a public one. The learned counsel for the appellant has also pointed out that the respondents have not examined any member of the public in the present case to give evidence that the members of the public are worshipping in this temple as of right. In this connection, he has relied on S. Krishnan v. Commr. HR & CE Madras 2 particularly para 12 therein. But, this attack cannot be made in this case in view of the above admission by the plaintiff himself in the petition in O.A. No. 59/74. Under the above circumstances, the dismissal of the suit is justified and this appeal has to be dismissed. 8. The learned counsel for the respondents also argued relying on Arulmigu Ranganathaswami Devasthanam v. Srinivasachariar 1989 (II) MLJ 54 (D.B)that the suit itself is not maintainable since notice under S. 80 C.P.C. has not been given. On the other hand, the learned counsel for the appellant contended that this question cannot be raised for the first time in this appeal by the respondents in view of the observations made in Commr. HR & CE. Madras v. Kannappa Naicker 1989 II LW 238 D.B which is a decision rendered subsequent to 5. But, I dont think it necessary to go into this question since I have already held on facts that the suit temple is not a private temple, but a public temple, coming within the definition under S. 6(20) of the Act and that hence the appeal has to be dismissed. 9. Therefore, this appeal fails and is dismissed with costs.