Judgment :- Challenge in the S.A.No.1522/1993 is the concurrent findings of Courts below dismissing the suit for relief of mandatory injunction directing the Neelayathakshi Amman Temple to discharge the undertaking under Ex.A-2 letter and also seeking exclusive possession of the temple Kudavarai. Unsuccessful plaintiff is the appellant. 2. In S.A.No.829/2000, challenge is to the appeal of the Judgment of the lower Appellate Court in A.S.No.6/1999 reversing the Judgment of the trial Court in O.S.No.56/1996 and thereby dismissing temples suit for declaration and Permanent Injunction. 3. Since in both the second appeals common substantial question of law arise for consideration, both the second appeals shall stand disposed of by this common Judgment. For convenience, parties are referred as per their array in O.S.No.56/1996 suit filed by the temple. 4. Briefly stated background facts which led to the filing of the appeals are as follows:- Suit jewels – 26 items of jewels [some imbedded with diamonds and precious stones] worth more than Rupees One crore were gifted by Muthuthandapani Chettiars ancestors for the specific purpose of adorning the deity Sri Neelayathakshi Amman during Adipooram Festival celebrated by the temple by taking out around four car streets of the temple. The jewels are kept in kudavarai, which is under lock and key. There are two set of keys and one set of key is with the temple authorities and another set with the donors family. 5. During the period of Muthuthandapani Chettiar, he was having the custody of the keys and after his demise, his widow, Thangammal, was having the custody of the keys. The Defendant claims to be the adopted son of Muthuthandapani Chettiar and his wife Thangammal. 6. Case of the Defendant is that the temple has earlier filed suit claiming right over the jewels in O.S.No.99/1981 and the said suit was dismissed. Appeal preferred by the temple in A.S.No.113/82 was also dismissed. According to the Defendant, Muthuthandapani Chettiar had permitted the temple to keep temple jewels when Treasury Room was under repair and thereafter, temple authorities had not removed the temple jewels from Kudavarai. The Defendant has sent notice to the temple cancelling permission to use kudavarai and to hand over possession of kudavarai to the Defendant. According to the Defendant, Muthuthandapani Chettiar had permitted the temple to keep temple jewels when Treasury Room was under repair and thereafter, temple authorities had not removed the temple jewels from Kudavarai. The Defendant has sent notice to the temple cancelling permission to use kudavarai and to hand over possession of kudavarai to the Defendant. Since the plaintiff temple has not complied with the same, Defendant has filed suit O.S.No.156/1986 to direct the temple to discharge the alleged liability or undertaking given under Ex.A-2 letter allegedly written by previous Executive Officer and also seeking for exclusive possession of the temple Kudavarai. 7. Temple defended the suit contending that Ex.A-2 letter was not an undertaking but was only a request to Muthuthandapani Chettiar to bring one set of keys which was in his custody at that time for opening the doors of the temple kudavarai. According to the temple, there was no undertaking and assuming without admitting even if it was so, Ex.A-2 was not acted upon. The temple also contended that the Defendants suit is barred by the provisions of HR & CE Act under Secs.108 and 116 and therefore, the suit is not maintainable. The temple also raised the plea of limitation under Art.113 of Limitation Act and for want of notice under Section 80 CPC. 8. On the above pleadings trial Court framed necessary issues. The trial Court found that Ex.A-2 was not acted upon and took the view that the Defendant finding that the temple suit O.S.No.99/1981 was dismissed, hit upon a plan to grab the temple jewels for himself and to claim exclusive possession of the temple kudavarai so that he can remove the temple jewels and misappropriate the same for his benefit. The trial Court pointed out that O.S.No.99/1981 was filed by the temple only to take an inventory of Amman jewels and held that the dismissal of the suit O.S.No.99/1981 would not confer any right upon the Defendant. 9. Confirming the findings of the trial Court, the appeal preferred by the Defendant in A.S.No.354/1992 was also dismissed. Challenging the concurrent findings of the Courts below Defendant/appellant has preferred S.A.No.1522/1993. 10. In the proceedings in O.S.No.99/1981, Courts observed that the temple had not filed the suit O.S.No.99/1981 for declaration of its right to the jewels and cannot maintain the suit for appointment of Receiver. Challenging the concurrent findings of the Courts below Defendant/appellant has preferred S.A.No.1522/1993. 10. In the proceedings in O.S.No.99/1981, Courts observed that the temple had not filed the suit O.S.No.99/1981 for declaration of its right to the jewels and cannot maintain the suit for appointment of Receiver. Therefore, the temple filed the suit O.S.No.56/1996 for a declaration that 26 items of jewels belonged to the temple. Case of temple is that 26 items of jewels were donated by the ancestors of Muthuthandapani Chettiar for adorning the processional deity during Adipooram Festival and the jewels are kept in Kudavarai. During the period of Muthuthandapani Chettiar, he was having the custody of the keys and after his demise, his widow was having the custody. After the demise of Thangammal, the Defendant somehow or the other managed to get the custody of the keys. He did not cooperate with the temple authorities in opening the kudavarai and taking the jewels for adorning the deity. In O.S.No.99/1981, Commissioner was appointed and inventory was taken. Stating that the deity Neelayathakshi Amman, during Adipooram festival, is adorned with jewels and the suit jewels belong to the temple, plaintiff/temple has filed the suit for declaration that suit 26 items of jewels belong to the temple. The temple has also averred that since the Defendant is not cooperating with the temple authorities in opening the kudavarai and is also claiming exclusive ownership over the suit jewels, the plaintiff temple also prayed for Permanent Injunction restraining the Defendant from removing the suit jewels in any manner and interfering with the custody and possession of the jewels by the temple. 11. Upon consideration of oral and documentary evidence, the trial Court held that the jewels were gifted by the ancestors of Muthuthandapani Chettiar for adorning the processional deity Neelayathakshi Amman during Adipooram Festival and jewels donated for that specific endowment were not used by the family members of Muthuthandapani Chettiar or for their benefit. The trial Court also held that in O.S.No.99/1981, different issues were involved and therefore, O.S.No.56/1996 is not barred by Or.2 R.2 CPC. Observing that the suit is maintainable and not barred under the provisions of HR & CE Act, the trial Court found the title of the jewels in favour of the temple. The trial Court also held that in O.S.No.99/1981, different issues were involved and therefore, O.S.No.56/1996 is not barred by Or.2 R.2 CPC. Observing that the suit is maintainable and not barred under the provisions of HR & CE Act, the trial Court found the title of the jewels in favour of the temple. However observing that the Defendant is in possession of keys of kudavarai and that the family of the donor are to be given the honour of having the keys of kudavarai, the trial Court declined Permanent Injunction and directed the Defendant to cooperate with the temple authorities in opening the kudavarai and handing over jewels during festival season. 12. Being aggrieved by the Judgment of the trial Court the Defendant has preferred appeal in A.S.No.6/1999. The lower Appellate Court though confirmed the finding regarding gifting of suit jewels, has held that the suit filed by the temple is barred under Or.2 R.2 CPC and dismissed the suit filed by the temple. Insofar as the relief of injunction, both the trial Court and the Appellate Court gave a finding that the Defendant has not proved his claim that he is the adopted son but however, declined to grant injunction, as one set of keys is in the custody of the respondent/Defendant. Aggrieved by the reversal Judgment in A.S.No.6/1999, temple has preferred S.A.No.829/2000. 13. Aggrieved by the Judgment of the trial Court, Defendant has preferred the appeal. As against the declining of Permanent Injunction by the trial Court, plaintiff temple has preferred cross appeal. The Appellate Court accepted the temples contention that the suit jewels have been donated to the temple by Muthuthandapani Chettiars ancestors for adorning the processional deity Neelayathakshi Amman during Adipooram Festival. However, the lower Appellate Court held that in earlier suit filed by the temple in O.S.No.99/1981 for appointment of Receiver with regard to the suit jewels, the same issues were raised and the temple omitted to seek declaration of its ownership over the suit jewels in the said suit, which would bar the plaintiff temple from claiming ownership over the suit jewels in view of Or.2 R.2 CPC. Holding that the suit is barred under Or.2 R.2 CPC, the lower Appellate Court allowed the appeal dismissing the suit filed by the plaintiff temple. Holding that the suit is barred under Or.2 R.2 CPC, the lower Appellate Court allowed the appeal dismissing the suit filed by the plaintiff temple. The Appellate Court also held that custody of the keys by the Defendant is not illegal and on that score, the lower Appellate Court declined Permanent Injunction to the plaintiff temple. 14. Insofar as relief of Permanent Injunction both trial Court and Appellate Court recorded finding that the Defendant has not proved his claim that he is the adopted son of Muthuthandapani Chettiar. However, having regard to the fact that one set of keys are in the custody of the Defendant, both the Courts declined to grant injunction. 15. Observing that the sentiments of Muthuthandapani Chettiars ancestors enjoying the honour of having the keys and opening Kudavarai for taking out Ammans jewels during Adipooram festival has to be respected, the trial Court directed the Defendant to cooperate with the temple in opening the kudavarai and handing over jewels and on those findings, declined Permanent Injunction prayed for by the plaintiff temple. 16. At the time of admitting the second appeal, the following substantial questions of law were framed for consideration:- "S.A.No.1522/1993:- (i) Whether the Courts below are right in holding that the suit is barred under Section 108 and 116 of H.R.C.E. Act? (ii) Whether the Courts below are right in accepting the contention of the Defendant as it is when they are estopped from raising contrary averment from their statement between the parties in the earlier suit i.e., in Ex.A-15? (iii) Whether the Courts below are right in interpreting Ex.A-15, in which the temple had admitted the contents of the plaintiff in the present suit ? (iv) Whether the Courts below are right in holding that Sec.80 of CPC notice was not given, when the same was given?" S.A.No.829/2000:- Whether the decision of the lower Court that the appellants suit is barred under Or.II R.2 CPC is right?" 17. Laying emphasis upon Ex.A-1 register and location of kudavarai inside the temple and other materials on record, the learned Counsel for the plaintiff temple contended that the suit jewels having been dedicated are exclusive property of the temple and the Defendant cannot claim any right over the kudavarai and the suit jewels. Laying emphasis upon Ex.A-1 register and location of kudavarai inside the temple and other materials on record, the learned Counsel for the plaintiff temple contended that the suit jewels having been dedicated are exclusive property of the temple and the Defendant cannot claim any right over the kudavarai and the suit jewels. The learned Counsel further submitted that the Defendant is an utter stranger to the donors family, and that he is an inter-meddler, whose intentions are not bonafide. Taking me through the pleadings and relevant materials, the learned Counsel further argued that the Defendant is not cooperating with the temple in opening the kudavarai and taking the jewels for adorning the processional deity during Adipooram Festival, which aspect was not appreciated by the Courts below in proper perspective. It was further contended that taking note of the extreme defences taken by the Defendant claiming ownership over the temple jewels, the Courts below ought to have granted Permanent Injunction. The main plank of argument advanced is that the suit filed by plaintiff temple is not barred under Or.2 R.2 CPC and the findings of the lower Appellate Court is unsustainable. 18. Taking me through the Judgment in O.S.No.99/1981, the learned Counsel for the Defendant submitted that the earlier suit O.S.No.99/1981 ought to have been filed for declaration of title of the temple to the suit jewels and temple omitted to sue for efficacious relief of declaration and therefore, the present suit O.S.No.56/1996 filed by the plaintiff temple is barred under Or.2 R.2 CPC. 19. Denying dedication of jewels to the deity, the learned Counsel mainly argued that the plaintiff temple has not proved that the jewels belonged to them and no documents had been produced to prove the dedication of jewels to the deity, or any other authenticated records maintained by the temple. The learned Counsel further submitted that the suit jewels are kept in the possession of the Defendant and exclusive possession of kudavarai is established by the materials produced by the Defendant and the Courts below erroneously held that the jewels were dedicated to the deity. The learned Counsel further submitted that the suit jewels are kept in the possession of the Defendant and exclusive possession of kudavarai is established by the materials produced by the Defendant and the Courts below erroneously held that the jewels were dedicated to the deity. The learned Counsel would further submit that the jewels adorned by the deity were usually taken out to be worn by the ladies in the family of Muthuthandapani and the jewels were neither dedicated to the deity nor to the temple and therefore, the finding of fact recorded by the Courts below is erroneous. The learned Counsel would further submit that the lower Appellate Court has rightly held that the suit is barred under Or.2 R.2 CPC and the Judgment of the lower Appellate Court on that aspect is not to be interfered with. 20. Insofar as the concurrent findings of the Courts below in O.S.No.56/1986 and A.S.No.364/92, Defendant has preferred appeal in S.A.No.1522/1993. Appellant/Defendant – Sundaram @ Meenakshi Sundaram, appeared in person and contended that the trial Court completely overlooked the fact that notice under Section 80 CPC was issued and even if notice was defective, the suit cannot be dismissed. The party-in-person would further submit that notwithstanding the fact that kudavarai is situated inside the temple, Defendant continues to be in lawful possession of kudavarai and seeks appropriate direction to the temple to remove the temple jewels from Kudavarai. He would further contend that he is the adopted son of Muthuthandapani Chettiar as per the records and that adoption cannot be challenged by the third party temple. 21. About the Sri Kayarohana Swami Neelayathakshi Amman:- From Ex.A-3 Sthalapuranam, we find that temple is situated in Nagapattinam about half a mile north of the Railway Station and half a mile west of the Sea. 22. Administration of the temple originally vested with Nagai District Devasthanam Committee. Revised Scheme of Hindu Religious and Charitable Endowment was implemented as per Order No.G.O.135 dated 16.01.1942 and since then, temple is under the direct administration of Hindu Religious and Charitable Endowments and continued to be so, after passing of H.R. & C.E. Act, 1959. The Executive Officer and Trustees appointed by the H.R. & C.E. Department are in administration and management of the temple. 23. Two of the important festivals are ADIPURAM and PANCHAKROSAM. The Executive Officer and Trustees appointed by the H.R. & C.E. Department are in administration and management of the temple. 23. Two of the important festivals are ADIPURAM and PANCHAKROSAM. During Adipuram the coming of age the goddess is celebrated which is a unique festival in this place. The festival is of 10 days duration in which the several stages of goddess from birth to womanhood is exhibited. On the 10th day after the sacred bath, the idol of Goddess Neelayathachi is taken in procession in the famous temple car [gP;fhd; ujk;]. It is stated that during Adipooram Festival, the deity Neelathakshiamman is adorned with suit jewels. 24. According to the Defendant, he is the adopted son of Muthuthandapani Chettiar and suit jewels are free hold absolute properties of Defendants family inherited by him from his deceased father Muthuthandapani Chettiar and during his life time, Muthuthandapani Chettiar had exercised right of title, interest and enjoyment. It is the further case of the Defendant that the suit properties are excluded from that of the temple and there is no record evidencing the specific endowment. It is the further case of the Defendant that the mere fact that jewels were being adorned by processional deity would not lead to the conclusion that the suit jewels were donated to the temple. 25. By concurrent findings, Courts below held that jewels were donated to the temple by ancestors of Muthuthandapani Chettiar for the purpose of wearing the processional deity during Adipooram festival. Though concurrent findings were recorded by the Courts below, the Defendant, who appeared in person and also the Defendants counsel Mr.R.Subramanian would vehemently contend that there is no document showing dedication of jewels and creation of specific endowments. Defendant claims exclusive right over the suit jewels and also claims exclusive control over kudavarai. In the second appeal, though High Courts jurisdiction is confined to substantial questions of law, findings of fact is not open to challenge. But in exceptional circumstances, scrutiny of evidence is not totally prohibited. Where the conclusion of the lower Appellate Court is based on no evidence, the High Court would be justified in re-appreciating the evidence in proper perspective. Since there is reversal finding in respect of Or.2 R.2 CPC and in view of elaborate arguments advanced, it is necessary to re-appreciate the evidence and record the findings, though the second appeals are preferred under Section 100 CPC. Since there is reversal finding in respect of Or.2 R.2 CPC and in view of elaborate arguments advanced, it is necessary to re-appreciate the evidence and record the findings, though the second appeals are preferred under Section 100 CPC. 26. Gift/Endowment - whether the jewels were not dedicated to the temple:- According to the Defendant, the suit jewels do not belong to the temple but belong to the Defendants family and there was no valid gift or dedication. The learned Counsel for the defendant forcibly contended that there was no documentary evidence to show the specific endowment and the trial Court completely omitted to consider the oral evidence of PW-1 – Executive Officer. which in no way would prove dedication. The learned Counsel would also submit that from the oral evidence adduced by plaintiff temple, dedication cannot be said to have been established. It was the further contention that where dedication is pleaded, burden is on the person who pleads dedication of the property, to positively prove complete transfer of title in respect of the property, even though dedication may not necessarily be by instrument or grant. According to the Defendant, none of P.W.s 1 to 6 had spoken about oral donation nor pleaded in the plaint. The learned Counsel placed reliance upon – 1996 (1) LW 11 (SC) – Meenakshisundaram v. Arulmighu Sri Mariamman & Ors.; 2003 (1) LW 386 – Sri Arthanareeswarar of Tiruchengode by its Executive Officer v. T.M. Muthuswamy Padayachi & ors.; 2003 (3) LW 16 (SC) – Kuldip Chand and Anr. v.Advocate General of H.P. And ors.] ; AIR 1921 Cal 148. 27. Placing reliance upon 1940 (2) MLJ 963 – [Ida L. Chambers and ors. v. Kelland Huxford Chambers], the learned Counsel further submitted that when there is gift of movable properties, unless it is effected by registered deed, the gift can only be completed by delivery of the property to the donee and in the present case, the keys continued to lie with the Defendant. There is no delivery of jewels to the donee and therefore, there was no gift of jewels. 28. The above contention revolves around the question of dedication of jewels to the suit temple. There is no delivery of jewels to the donee and therefore, there was no gift of jewels. 28. The above contention revolves around the question of dedication of jewels to the suit temple. Before ascertaining the intention of Muthuthandapani Chettiar to dedicate the jewels to temple which is evident from Ex.A-1 and oral evidence of P.W.s 1 to 6, it is necessary to bear in mind the principles of Hindu Law applicable to the consideration of question of dedication of property to religious or charitable purposes. 29. Referring to M. Dasaratharami Reddy v. D.Subba Rao – AIR 1957 SC 797 : (1957) 2 MLJ (SC) 175: 1957 SCJ 835 : 1957 SCR 1122 : (1957) 2 An W.R. (SC) 175 : 1959 (1) SCA 91, in 1995 (1) MLJ 406 – Selvaraj Nadar v. Aruppukottai Agraharam, Pattabiramaswami Koil Durga (Fit Person), Karuppusami and ors., observing that dedication need not be by instrument, or grant, this Court has held as under:- "The principles of Hindu Law applicable to questions relating to charitable Trusts are well-settled. Whether or not a dedication to charity is complete must depend on the intention of the donor, which has to be gathered from the terms of the document in any particular case read as a whole. If the dedication is complete, a trust is created if not a charge follows. Dedication to charity need not necessarily be by instrument or grant and it can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity." 30. In AIR 1974 AP 316 [M. Appala Ramanujacharyulu v. M.Venkata Naramasimhacharyulu and ors.] , observing that to constitute a valid endowment it must be assumed that donor intended to divest himself of his ownership in the property, it was held as follows:- "4. An endowment can be created by the execution of a deed of dedication by the donor. But however, it must be noted that the mere execution of a deed of dedication without the donor intending to act upon the terms of the deed, would not create a valid document. In other words, to constitute a valid endowment, it must be established that the donor intended to divest himself of his ownership in the property dedicated. An endowment may be real or nominal. In other words, to constitute a valid endowment, it must be established that the donor intended to divest himself of his ownership in the property dedicated. An endowment may be real or nominal. Whether a particular endowment is nominal or real, is a question of fact depending upon the facts and circumstances of each case. In order to determine whether an endowment is nominal or real, the factors relevant and material are (i) whether, in fact, any endowment has been created or not, and (ii) the conduct of the parties and the surrounding circumstances". 31. The test of endowment/dedication is, how did the founder and the descendants treated the property. From long user of jewels by the temple, it can be inferred that it was dedicated for adorning the processional deity during Adipporam Festival. 32. To prove that ancestors of Muthuthandapani Chettiar have gifted 26 items of jewels, PW-1 – Executive Officer, PW-2 – an employee in the temple for more than thirty years, PW-6 – Sculptor and P.W.s 3 to 5 were examined. Referring to the documents, PW-1 had spoken about the dedication of the 26 items of jewels, gifted for being adorned by processional deity Neelayathakshi Amman during Adipooram Festival. PW-2 employee in the temple for more than thirty years had stated that the suit jewels are kept in Kudavarai for more than thirty years and were never taken outside the temple excepting for Adipooram. PW-2 has also stated that he had seen Muthuthandapani Chettiar handing over jewels from kudavarai during Adipooram festival and that the family of Muthuthandapani Chettiar never claimed any right over the suit jewels. 33. PW-3 – Abadhthothranam Chettiar aged about 75 years, who is son of erstwhile Trustee had also stated that the ancestors of Muthuthandapani, Kayaroganam Chettiar had gifted the jewels for being adorned by Neelayathakshi Amman and those jewels are exclusively meant for Neelayathakshi Amman. In his evidence, PW-3 had categorically stated as under:- 34. PW-4 – Sundarajan, the then Trustee of the temple during 1972 to 1977 also had spoken about the gift of jewels by ancestors of Muthuthandapani Chettiar for the purpose of being adorned by the deity Neelayathakshi Amman and that all the jewels belong to the temple and were never taken outside the temple. PW-4 has stated thus:- 35. PW-4 – Sundarajan, the then Trustee of the temple during 1972 to 1977 also had spoken about the gift of jewels by ancestors of Muthuthandapani Chettiar for the purpose of being adorned by the deity Neelayathakshi Amman and that all the jewels belong to the temple and were never taken outside the temple. PW-4 has stated thus:- 35. PW-5 – Kalimuthu aged about 73 years who was closely associated with Muthuthandapani Chettiar has spoken about the jewels being gifted by ancestors Muthuthandapani for the purpose of being adorned by Neelayathakshi Amman during Adipooram Festival. PW-5 had also stated that during Adipooram Festival, Muthuthandapani Chettiar would be happy to wait in anticipation to open the kudavarai and to take out the jewels for being adorned by the deity. Evidence of PW-5 would make it clear that Muthuthandapani Chettiar never claimed right in the jewels. PW-5 has also stated: 36. Much weight has to be attached to the evidence of P.W.s.2 to 5 who are either associated with the temple or closely associated with Muthuthandapani Chettiar. From the evidence of P.W.s 1 to 5, suit temple is shown to be in possession of the Adipoora Thiru Abaranam. The acts of adorning the jewels during Adipooram are indicative of possession and that temple is the owner of the jewels. I find no merits in the contention that actual user by the temple during Adipooram does not mean that the temple is the owner of the jewels. The contention that Muthuthandapani Chettiar and his family members used to take out the jewels is falsified by the consistent evidence of P.W.s 2 to 5. The learned counsel for the defendant contended that the jewels were adorned by the deity and the same were taken out for the purpose of being worn by the family ladies and again it was kept in kudavarai and such practice is in vogue for a number of years. This contention is neither based on evidence nor based upon the acceptable religious practices. In their evidence, P.W.s 2 to 5 have consistently stated that Adipooram Thiru Abaranam were never taken out from the temple. This contention is neither based on evidence nor based upon the acceptable religious practices. In their evidence, P.W.s 2 to 5 have consistently stated that Adipooram Thiru Abaranam were never taken out from the temple. The contention that what was being worn by the deity Neelayathakshi Amman was taken out for being worn by the family members of Muthuthandapani Chettiar and again the same was adorned by the deity and such practice was in vogue for a number of years is totally unacceptable. 37. Consistent oral evidence of P.W.s 1 to 5 is amply strengthened by Ex.A-1 Register, containing the details and particulars of available jewels etc. In Ex.A-1 – Register, in pages 1 to 13, 26 items of jewels are shown as "Adipooram Ambal Thiru Abaranam". In Ex.A-1 Register, below S.No.26, in the remarks column it is stated as, "These above jewels are in the custody of Mr. S.M.T.M. Muthuthandapany Chettiar of Negapatnam". 38. All other jewels are shown under different heading "Temple Series". The fact that 26 items of jewels are shown as Adipooram Ambal Thiru Abaranam is a strong piece of evidence strengthening plaintiff temples case. Ex.A-1 is a Register maintained in the regular course of administration of the temple. Even in the year 1960, 26 items of jewels were shown as Adipooram Ambal Thiru Abaranam. The same has been repeatedly verified over the years during annual inspection from 1961 onwards, which is made clear from various endorsements in Ex.A-1 Register. It is relevant to note that Muthuthandapani Chettiar died on 21.08.1969. The fact remains that even during the life time of Muthuthandapani Chettiar, 26 items of jewels were shown as Adipooram Andal Thiru Abaranam and the jewels belong to the temple. 39. From Ex.A-3 – Sthalapuranam, it is seen that the temple was under the administration of Devasthanam Committee of Nagapattinam District and thereafter, as per the revised scheme in 1942, BO 137-C, dated 11. 1942, the temple came under the administration of H.R. & C.E. Department. The temple was under the management of the Executive Officer and Trustees appointed by H.R. & C.E. Department. Ex.A-1 is the Register duly maintained in the official course. 40. Where any judicial or official act is shown to have been done in substantial regular manner, it will be presumed that formal requisites for its validity were complied with. The temple was under the management of the Executive Officer and Trustees appointed by H.R. & C.E. Department. Ex.A-1 is the Register duly maintained in the official course. 40. Where any judicial or official act is shown to have been done in substantial regular manner, it will be presumed that formal requisites for its validity were complied with. As held by the Supreme Court in ( AIR 1985 SC 114 ) – I.T. Commissioner, A.P. Vs. M. Chandra Sekhar, in my considered view, Ex.A-1 Register is an unimpeachable evidence showing that 26 items of jewels are Adipooram Ambal Thiru Abaranam. The presumption is founded in the principle that an officer entrusted with judicial or official duty must be presumed to have discharged his duties in a proper and definite manner. 41. As per Sec.29(d) of H.R. & C.E. Act, for every religious institution, there shall be prepared and maintained a Register in such form as the Commissioner may direct, showing the jewels – gold, silver, precious stones, vessels and utensils and other movables belonging to the institution, with their weights and estimated value. Evidently, Ex.A-1 is a Register maintained in compliance with Sec.29(d). Under Sec.114 Illustration (e) of the Indian Evidence Act, if an official act is proved to have been done, it will have to be presumed to be regularly done. 42. Contending that there is no specific document showing dedication of jewels or creation of specific endowment, the learned Counsel for the defendant argued that the suit temple has not maintained the Record in compliance with Sec.29(d) of the Act and Ex.A-1 cannot be said to be Register in compliance with Sec.29(d). The learned Counsel would further submit that no other documents were produced to substantiate the entries in Ex.A-1. The above contention does not merit acceptance. 43. That 26 items of jewels are Thiru Abaranam of Neelayathakshi Amman is also strengthened by subsequent conduct of the parties. Muthuthandapani Chettiar died on 21.08.1969. Thangammal, Kunjammal and Meenakshi Sundarammal, wives of Muthuthandapani Chettiar and his brother Rajamanickam made an arrangement regarding family properties and purpose of Dharmams and endowment in Ex.B-1 [marked in O.S.No.156/ 1986], dated 210. 1969. A reading of Ex.B-1 would show that vast extent of family properties were dedicated for endowment of various temples. The details of the other endowments may not be of much relevance in this appeal. 1969. A reading of Ex.B-1 would show that vast extent of family properties were dedicated for endowment of various temples. The details of the other endowments may not be of much relevance in this appeal. Suffice it to note that Muthuthandapani Chettiar and his ancestors were extremely liberal in creating endowments and dedicating vast extent of family properties to temples and performance of other Dharmams and endowments. 44. Ex.B-1 does refer to Adipooram Thiru Abaranam. After the death of Muthuthandapani Chettiar, his wife Thangammal had the keys of Kudavarai. In the family recitals, parties to Ex.B-1 agreed that the keys shall continue to remain with Thangammal and that Thangammal shall hand over the jewels during festival seasons. The relevant portion in Ex.B-1 reads thus:- 45. The above recitals would clearly show that the jewels were donated to the temple for adorning the processional deity and that Thangammal shall hand over jewels during festival seasons and other times, as and when jewels are required. 46. The learned Counsel for the defendant submitted that the plaintiff temple failed to prove that there is specific endowment or gifting of jewels and interalia raised the following contentions : - "There is no specific plea in the plaint about the existence of oral specific endowment and there is no document for the execution of specific endowment in compliance with Sec.29(e) of the Act; "Ex.A-1 cannot be construed as a document in compliance with Sec.29(d) of the Act. "As the keys continued to be with Muthuthandapani Chettiar and his wife – Thangammal and subsequently with the Defendant, there is no divesture of ownership or delivery of possession of suit jewels by the Defendants family to the temple or creation of any specific endowments by way of donation. "Burden is on the person who claims dedication of the property, to positively prove the complete transfer of title in regard to the property and control over the transferor. [1999 (1) LW 415 – Angamuthu v.K. Pugazhendi]. "As held in 2003 (3) LW 16 (SC) [Kuldip Ahamed anr. v. Advocate General, Govt. of H.P.], even from the long permissive user of property for 125 years, the dedication of property cannot be inferred, much less can be presumed as dedicated, when divesture ownership or control of jewels is retained by the donors and his heirs. "As held in 2003 (3) LW 16 (SC) [Kuldip Ahamed anr. v. Advocate General, Govt. of H.P.], even from the long permissive user of property for 125 years, the dedication of property cannot be inferred, much less can be presumed as dedicated, when divesture ownership or control of jewels is retained by the donors and his heirs. "At no point of time the suit jewels were with any of the Executive Officer or Trustee of the plaintiff temple. Where property is transferred by way of gift by the trustee of a temple it should comply with the requirement of Sec.122 and Sec.123 of T.P.Act, so that there should not only be acceptance of gift by the Transferee but it should also be by registered document duly executed and delivered. 47. In support of his contention, the learned Counsel for the defendant placed reliance upon a number of decisions. We need not burden this Judgment by referring to all the decisions. Suffice it to note that all the above arguments proceed on factual aspects. By concurrent findings, the Courts below held that ancestors of Muthuthandapani Chettiar have gifted the 26 items of jewels to Neelayathakshi Amman for being adorned during Adipooram Festival. As discussed earlier, gift of jewels to the deity during Adipooram Festival is also established by overwhelming evidence. 48. There is intrinsic evidence available to prove that the jewels were dedicated for adorning the processional deity during Adipooram Festival. Upon appreciation of oral evidence and Ex.A-1 register, Courts below have rightly held that the jewels were donated to the plaintiff temple for adoring the processional deity – Neeladhakshiamman, during Adipooram Festival. 49. When positive findings of fact is recorded by the Courts below regarding of gift of jewels for processional deity during Adipooram Festival and possession of the jewels by the temple, exercising jurisdiction under Section 100 CPC, such concurrent findings cannot lightly be interfered with. The concurrent findings of fact cannot be interfered with by the High Court in a routine and casual manner by reconsidering the evidence and substituting its own views. 50. Where both the Courts below have correctly appreciated the evidence and arrived at correct conclusion, the same cannot be interfered with, unless it is contrary to evidence. The concurrent findings of fact cannot be interfered with by the High Court in a routine and casual manner by reconsidering the evidence and substituting its own views. 50. Where both the Courts below have correctly appreciated the evidence and arrived at correct conclusion, the same cannot be interfered with, unless it is contrary to evidence. In 2000(9) SCC 218 [Govind Das v. Kanhiya Lal], the Supreme Court has held that where the conclusion of the Court below is more than a plausible one, the High Court has no jurisdiction to interfere with the concurrent finding of fact. 51. In O.S.No.156/1986 – Right claimed by Defendant in Kudavarai and Defendants prayer for delivery of possession of Kudavarai:- As stated earlier, Kudavarai is inside the temple, adjoining the third Gopuram. That the jewels were inside the Kudavarai and kudavarai adjoining the third Gopuram are factors to be reckoned with. Kudavarai being inside the temple, one fails to understand as to how an outsider to the temple can claim delivery of possession of kudavarai inside the temple. The acts of control or enjoyment in one part of a land are relevant to show possession of the whole. The temple, shown to be in possession of kudavarai, should be presumed to be owner of it. Possession has two fold value viz., it is evidence of ownership and is itself a foundation of a right to possession. 52. Defendant claims that he and Muthuthandapani Chettiar have been in possession of Kudavarai in which jewels are kept and that Kudavarai was never with temple at any time. On the strength of certain answers elicited from PW-1/Executive Officer, the learned Counsel for the Defendant would contend that temple authorities have no knowledge of know-how to open the Kudavarai which would show the operation of the Kudavarai by the Defendant only. Defendant seeks for delivery of possession of Kudavarai and mandatory injunction to implement the undertaking under Ex.A-2. In support of his contention, the Defendant relies upon Ex.A-2 letter sent by the Executive Officer to him, calling upon him to produce the key of Kudavarai. Defendant seeks for delivery of possession of Kudavarai and mandatory injunction to implement the undertaking under Ex.A-2. In support of his contention, the Defendant relies upon Ex.A-2 letter sent by the Executive Officer to him, calling upon him to produce the key of Kudavarai. Stating that the jewel room of the temple was under repair and requesting to hand-over the keys of kudavarai, the then Executive Officer has sent Ex.A-2 letter dated 04.06.1962 which reads as under:- On the strength of the above letter, the learned Counsel for the defendant submitted that Ex.A-2 would show that Kudavarai was under exclusive control and management of Muthuthandapani Chettiar and the temple had only sought for permission to keep the temple jewels in kudavarai which was under the control of Muthuthandapani Chettiar. 53. Like Ex.A-2, Ex.A-21 communication was sent to the Defendant calling upon him to appear with the keys for opening Kudavarai for the purpose of verification by the Appraiser. Regarding missing of jewels, police complaint was lodged and First Information Report was registered. Ex.A-14 letter was sent to the Defendant calling upon him to appear with two keys for opening of Kudavarai to enable the Investigating Officer to verify the jewels and proceed with the investigation. That apart, there are also other documents calling upon the Defendant to bring the keys in his possession for the purpose of opening Kudavarai where the jewels are kept. As per order in C.M.P.No.13718/2004, Exs.A.22 to A.25 (in O.S.No.156/1986), were received as additional documents in the High Court. Those documents are communications sent to the Defendant to be present in the temple with keys for opening of Kudavarai. On the basis that two keys are with the Defendant, Defendant contends that he and Muthuthandapani Chettiar and his ancestors were in control of kudavarai and that temple was only permitted to use Kudavarai for a short while when repairing work was undertaken in remaining room. 54. It is no doubt true that one set of keys were previously with Muthuthandapani Chettiar which the Defendant seems to be in possession. For appreciation of the arguments advanced by the Defendant, we need to understand the location of Kudavarai. From the plan of the temple given in Ex.A-3 – Shalapuranam, it is seen that here are three Gopurams for the temple. For appreciation of the arguments advanced by the Defendant, we need to understand the location of Kudavarai. From the plan of the temple given in Ex.A-3 – Shalapuranam, it is seen that here are three Gopurams for the temple. Though Kudavarai is not shown in Ex.A-3 Plan, it is seen from evidence that Kudavarai is near the inner Gopuram. Kudavarai being the place where the valuables and jewels are kept, being the highest safety place, to ensure safety of the jewels, kudavarai might not have been shown in Ex.A-3. Non mention of kudavarai in Ex.A-3 would not in any way lead to the conclusion that Muthuthandapani Chettiar was in exclusive possession and control of kudavarai. 55. The very fact that Kudavarai is situated adjacent to the inner Gopuram would clinchingly establish that Kudavarai is under the management and control of the temple. The learned Counsel for the defendant has contended that the possession of Kudavarai was never with the temple and the operation of the room is only by the Defendant and the Executive Officer did not know how to operate the opening and closing of Kudvarai. The Defendant seems to claim exclusive possession of Kudavarai based on the fact that he is in possession of one set of keys. 56. Kudavarai consists of Steel door with locks. Inside the Kudavarai there is Iron Safe where Adipooram Thiru Abaranam are kept. In other steel bureaus, the other temple jewels are kept. Iron door is with two locks for which one key is with the temple and another key is with the Defendant. For the Iron Safe where Adipooram Thiru Abaranam are kept, keys are with the Defendant. For two Steel bureaus one set of keys is with the Executive Officer and another set of key is with the Joint Sub Registrar – I Nagapattinam who is the Double Lock Officer. Possession of keys each one by the temple and the Defendant would show that without the cooperation of either one, Kudavarai cannot be opened and jewels cannot be taken out. 57. In O.S.No.56 /1996, Commissioner visited the suit temple and opened the Kudavarai and made an inventory. The Commissioner had also pointed out that for the outer lock, key is with the defendant and for two other locks, plaintiff temple had the keys. Key for the lock of iron safe was with the defendant. 57. In O.S.No.56 /1996, Commissioner visited the suit temple and opened the Kudavarai and made an inventory. The Commissioner had also pointed out that for the outer lock, key is with the defendant and for two other locks, plaintiff temple had the keys. Key for the lock of iron safe was with the defendant. The Commissioners Report reads as follows:- Commissioner had noticed that item no.14 was missing. 58. It is indeed true that the evidence on record would show the defendant being in possession of one set of keys for the outer door; and keys for the iron safe where Adipooram Thiru Abaranam are kept. The possession of keys with Muthuthandapani Chettiar has been clearly explained by the Plaintiff temple and PW-5, who was closely associated with the Muthuthandapani Chettiar. For the purpose of giving honour to the donor of the jewels, one set of keys were with Muthuthandapani Chettiar which the defendant happens to have got in possession. As discussed earlier, evidence of P.W.s 2 to 5 would clearly show that Muthuthandapani Chettiar and his family never claimed right in the Thiru Abaranam jewels and the jewels were never taken out of the temple. 59. To obtain the relief of possession of kudavarai, the Defendant must show better right in himself to possession than that of temple. The fact that Defendant possesses two keys does not mean that Defendant has right to kudavarai and therefore, he is entitled for possession of it. 60. Defence plea is two fold: Firstly, during the life time of deceased Muthu Thandapani Chettiar, "jewels" owned and possessed by him was licensed to be kept in kudavarai with the temple. Throughout his life, Muthu Thandapani Chettiar was exercising right of ownership of the jewels and therefore, the jewels are not temple properties. Secondly, in O.S.No.99/1981, trial Court has held that Thiru Abaranams are not the jewels of the temple and the relief for appointment of receiver was negatived which was confirmed by the Appellate Court in A.S.No.113/1982 and therefore, temple cannot now claim the jewels and the temple jewels. 61. The contention that Muthuthandapani Chettiar was licensed to keep his family jewels in kudavarai has no force. It is not as if the plaintiff temple was operating a Bank Locker inside the temple, licensing it to the public. It is relevant to note that no other jewels of public are kept inside the Kudavarai. 61. The contention that Muthuthandapani Chettiar was licensed to keep his family jewels in kudavarai has no force. It is not as if the plaintiff temple was operating a Bank Locker inside the temple, licensing it to the public. It is relevant to note that no other jewels of public are kept inside the Kudavarai. While so, why should Muthuthandapani Chettiar alone should have such privilege of keeping his family jewels in the kudavarai. The story that Muthuthandapani was granted licence over kudavarai by the temple is far fetched and does not stand the test of logic. Adipooram jewels and other temple jewels being kept in the kudavarai which is inside the temple coupled with oral evidence would conclusively prove the ownership of the suit temple. The contention that Muthu Thandapani Chettiar continued treating the jewels as his family jewels is untenable. 62. Possession of jewels by the Temple:- Based on the evidence, the courts below have recorded concurrent findings that Kudavarai which is situated in the third Gopuram is in possession of the plaintiff temple which is administered by H.R. & C.E. Department. Location of Kudavarai inside the temple and being situated near the third Gopuram is unimpeachable piece of evidence that Kudavarai is in possession of the temple. Under no stretch of imagination can it be said that Muthuthandapani Chettiar was in possession of Kudavarai. Based on the fact that Muthuthandapani Chettiar was in possession of one set of keys over the outer lock and key of iron safe, it is not possible to hold that the kudavarai was in the management of Muthuthandapani Chettiar. Based on the ipse dixit of the defendant, concurrent findings of the courts below cannot be disturbed. 63. Equally, there is no force in the second contention that in O.S.No.99/1981, findings were recorded against the temple. It is wrong to contend that in O.S.No.99/1981, Courts have decided that the properties were not temple properties. By a reading of Ex.A-5, it is seen that O.S.No.99/1981 was dismissed on the technical ground that plaintiff temple cannot maintain a suit simplicitor seeking for appointment of receiver for taking inventory of the suit jewels. In my considered view, the Defendant cannot take advantage of dismissal of the suit in O.S.No.99/1981. 64. In the suit O.S.No.156/1986 filed by the Defendant, he prayed for mandatory injunction to implement the alleged undertaking in Ex.A-2. In my considered view, the Defendant cannot take advantage of dismissal of the suit in O.S.No.99/1981. 64. In the suit O.S.No.156/1986 filed by the Defendant, he prayed for mandatory injunction to implement the alleged undertaking in Ex.A-2. During the life time of Muthu Thandapani Chettiar, the then Executive Officer of the temple sent Ex.A-2 letter dated 04.06.1962, which we have extracted already in paragraph ______, asking for delivery of keys of Kudavarai and stating that after repairing work of Treasury Room is completed, the keys would be handed over back to Muthu Thandapani Chettiar. The Defendant very much harps upon the contents in Ex.A-2. Based on Ex.A-2 letter, it is not open to the Defendant to contend that Muthu Thandapani Chettiar permitted the suit temple to keep the temple jewels in Kudavarai till the repairing work in the Treasury Room is completed. 65. The Defendant has vehemently contended that as per Ex.A-2, the temple is obligated to remove the temple jewels from Kudavarai and restore possession of Kudavarai to the Defendant. The Defendant has further contended that the temple jewels were permitted to be kept in Kudavarai only for a short while when the Treasury Room was under repair and the temple authorities sought for permission of Muthuthandapani Chettiar for keeping the temple jewels in Kudvarai. The Defendant has further argued that the temple is obligated to perform its undertaking under Ex.A-2. 66. Ex.A-2 letter is dated 010. 1962. Since Muthuthandapani Chettiar did not take any action under Ex.A-2, the Courts below held that Ex.A-2 was never acted upon. Muthuthandapani Chettiar died on 21.08.1969. During his life time, Muthuthandapani Chettiar had not chosen to call upon the temple to remove the temple jewels from Kudavarai. Over the years, when Muthuthandapani Chettiar did not seek to implement Ex.A-2, the Courts below were justified in arriving at the conclusion that Ex.A-2 was not at all acted upon. 67. Kudavarai is inside the temple. Only for giving honour of opening the Kudavarai and handing over the jewels during Adipooram Festival, the donors family was given possession of keys of Kudavarai. Under Ex.A-2 letter, the temple had only called upon Muthuthandapani Chettiar to handover two keys to enable the temple to keep other jewels in kudavarai till the repairing in Treasury Room is completed. That does not mean that temple has abdicated its right of Kudavarai in favour of Muthuthandapani Chettiar. Under Ex.A-2 letter, the temple had only called upon Muthuthandapani Chettiar to handover two keys to enable the temple to keep other jewels in kudavarai till the repairing in Treasury Room is completed. That does not mean that temple has abdicated its right of Kudavarai in favour of Muthuthandapani Chettiar. Ex.A-2 letter will not amount to undertaking to call upon the temple to implement its statement in Ex.A-2. 68. In (2000) 9 SCC 218 (219) (Govind Das v. Kanhiya Lal) the Supreme Court has held, where the conclusion of the Courts below is more than a plausible one, the High Court has no jurisdiction to interfere with the concurrent finding of fact. 69. On concurrent findings, Courts below have rightly negatived the plea of mandatory injunction to implement the alleged undertaking in Ex.A-2. The concurrent findings of Courts below cannot be interfered, unless it is contrary to the evidence on record. Where both the Courts below have concurrently appreciated the evidence and arrived at the correct conclusion, exercising the jurisdiction under Section 100 C.P.C. the High Court will not interfere with the concurrent findings in a casual manner. 70. Whether suit O.S.No.156/1986 is barred :- Insofar as O.S.No.156/1986, both the Courts below have recorded concurrent findings:- "Suit is bad for non-issuance of notice under Section 80 CPC, "Suit filed by the Defendant seeking delivery of possession of Kudavarai and mandatory injunction is barred under Sections 108 and 116 of H.R. & C.E. Act. 71. Challenging the concurrent findings, Defendant – party in person [S.A.No.1552/1993] contended that under Section 9 CPC, Civil Court has jurisdiction to try all suits of civil nature and there is an inherent right in every person to bring a suit of civil nature, unless a suit is barred by a statute, the suit is well maintainable. He further contended that the bar under Section 108 H.R. & C.E. is only in respect of suits relating to administration and management of the temple and that the dispute between himself and the temple would not fall under Sec.108 and the Courts below erred in saying that the suit is barred under Sec.108 H.R. & C.E. He further contended that under Sec.9 CPC, the Court shall have jurisdiction to try all suits of civil nature and therefore, suit in O.S.No.156/1986 filed by him is not barred under Sec.108 H.R. & C.E.. 72. 72. Sec.108 deals with bar of suits in respect of administration or management of religious institutions. Under Section 108 H.R. & C.E. Act, No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law, except under, and in conformity with, the provisions of the Act. There is certain statutory restrictions of suits or other legal proceedings relating to matters mentioned therein i.e. (i) administration and management of religious institutions; (ii)and other matters or dispute for determining or deciding a provision is made in the Act. 73. The Defendant party in person vehemently contended that the Courts below erred in holding that the Civil suit is barred. The Defendant has further contended that when the temple has earlier instituted O.S.No.99/1981, the suit filed by the Defendant O.S.No.156/1986 cannot be said to be barred. The Defendant has further argued that the temple is estopped from contending that the suit filed by the Defendant is not maintainable. 74. The above contention does not merit acceptance. As noted supra, the earlier suit O.S.No.99/1981 was a suit simplicitor for appointment of Receiver for the purpose of making inventory of the jewels inside the Kudavarai. For appointment of Receiver and for making inventory, the temple has to necessarily institute a civil suit. The fact that the temple has earlier filed suit O.S.No.99/1981 seeking appointment of Receiver would not confer any right upon the Defendant to invoke the jurisdiction of the Civil Court. 75. The claim of the Defendant is that suit jewels were not dedicated to the processional deity and kudavarai belongs to Muthu Thandapani Chettiar and then to the Defendant, may not fall within the expression management and administration of the temple. But it certainly falls within the next limb of Sec.108 i.e. " determining or deciding which provision is made in this Act". The Clause, "determining or deciding which provision is made in this Act", of a reasonable construction cannot be made to qualify "administration and management" but is confined to any other matter or dispute which provision is made in the Act. 76. On the scope of exclusion of jurisdiction of civil Court under Section 108 H.R. & C.E., in 1980(1) MLJ 140 [Sri Vallaba Ganesar Devasthanam, Sannadhi Street, Tiruvannamalai, rep. 76. On the scope of exclusion of jurisdiction of civil Court under Section 108 H.R. & C.E., in 1980(1) MLJ 140 [Sri Vallaba Ganesar Devasthanam, Sannadhi Street, Tiruvannamalai, rep. by Kailasa Mudaliar and ors. v. Anandavadivelu Mudaliar and ors.], it was held as follows:- "11. The principle on which the jurisdiction of the Civil Court is excluded under Section 108 of the Act are now well-settled. The dispute raised in the suit relates to the administration or management of a religious institution or any other matter or the determination of which a provision has been made in the Act the bar under Section 108 of the Act will be attracted. On the other hand if the question arising for adjudication falls outside the scope and ambit of Sec.108 of the Act, then the civil Court will have jurisdiction to entertain the suit and the bar of exclusion of jurisdiction provided for under Section 108 cannot be invoked. 12. It is equally settled that if in a suit any matter in respect of which a provision is made under the Act had to be incidentally decided, the jurisdiction of the civil Court will not be excluded. To be more specific if any other question in respect of which the power is conferred in the Deputy Commissioner to decide under Section 63 of the Act, arises incidentally for consideration in a suit, the jurisdiction of the civil Court will not be excluded. Notwithstanding Sec.108 of the Act, where the dispute relating to a temple is only between two private parties and the Board is not directly concerned, the civil Court has jurisdiction to try the suit". 77. Sec.63 H.R. & C.E. confers on the Deputy Commissioner, power to enquire and decide the question whether any institution or endowment is wholly or partially of a religious or secular character; and whether any property or money was given wholly or partly for religious or secular uses. Sec.63 Clause g contemplates determination by the Commissioner of the amount to be allotted to religious uses where any property or money has been given for the support of an institution which is partly of a religious or secular character. Under Section 63, the Deputy Commissioner was the competent authority to enquire and decide the question whether the kudavarai was not in the control of the temple and the question of dedication of jewels to the temple. Under Section 63, the Deputy Commissioner was the competent authority to enquire and decide the question whether the kudavarai was not in the control of the temple and the question of dedication of jewels to the temple. In view of bar under Sec.108 of the Act, the Courts below have rightly held that the suit filed by the Defendant in O.S.No.156/1986 is not maintainable. The concurrent findings of the Courts below that Sec.108 will be a bar to the suit cannot be interfered with. 78. As per the statute, the Defendant ought to have moved the Deputy Commissioner. Thereafter, if at all the Defendant is aggrieved by any decision of the Deputy Commissioner, he ought to have filed the statutory suit/appeal under Sec.70 of H.R. & C.E. For enforcing statutory right under Sec.70 of the Act, Sec.80 notice may not be necessary. But the Defendant had straight instituted the suit O.S.No.156/1986 seeking delivery of possession of Kudavarai and mandatory injunction. Such suit instituted directly in the Civil Court is barred under Sec.108 H.R. & C.E. Had notice under Sec.80 CPC been issued by the Defendant, Department would have suitably replied and the Department could have avoided the long drawn litigation for more than twenty years. Keeping in view the bar under Sec.108 of the Act, the trial Court has rightly held that the suit O.S.No.156/1988 is bad for non-issuance of notice under Sec.80 CPC. That finding cannot be said to be perverse or erroneous, warranting interference. 79. O.S.No.56/1996; whether barred under Or.2 R.2 CPC:- Though the lower Appellate Court confirmed the findings of the trial Court as to dedication of the jewels to the processional deity and confirmed the findings that the Defendant cannot claim any right in the jewels, the lower Appellate Court allowed the appeal A.S.No.6/1999 mainly on the ground that suit O.S.No.56/1996 is barred under Or.2 R.2 CPC. The lower Appellate Court took the view that : (i) The Judgment in O.S.No.99/1981 would operate as res-judicata; (ii) In O.S.No.99/1981, plaintiff temple omitted to ask for a comprehensive relief of seeking for declaration of the plaintiff temple. Having omitted to seek for declaration, subsequent suit is barred under Or.2 R.2 CPC. 80. Since the lower Appellate Court reversed the Judgment of the trial Court mainly on the ground of bar under Or.2 R.2 CPC, this aspect needs anxious consideration. Having omitted to seek for declaration, subsequent suit is barred under Or.2 R.2 CPC. 80. Since the lower Appellate Court reversed the Judgment of the trial Court mainly on the ground of bar under Or.2 R.2 CPC, this aspect needs anxious consideration. Earlier plaintiff temple has filed O.S.No.99/1981 to appoint a receiver for the purpose of taking inventory of the items of jewellery contained in the iron safe kept in kudavarai. By a reading of plaint in O.S.No.99/1981 [Ex.B-2], it is seen that the basis of the earlier suit was that Defendant, holding keys of the iron safe, was not cooperating with the temple in opening the kudavarai and iron safe. The plaintiff temple pleaded that few jewels were found missing from Kudavarai. As per the directions of Commissioner, H.R. & C.E., all the jewels are to be verified by Appraiser as per the original Appraisement Register, for which the Defendant was not cooperating in coming forward with the keys to open the kudavarai and under those circumstances, plaintiff temple sought for appointment of Receiver. 81. In O.S.No.99/1981, Defendant filed Written Statement [Ex.B-3], claiming right in himself that suit temple has no right in the jewels. Referring to 1992 LW part 1, page 1 – [Ananthachary and another v. Mohan Ram and others] Ex.A-5, Court has dismissed the suit O.S.No.99/1981, observing that the suit for appointment of a Receiver is not maintainable and the plaintiff temple has not filed the suit for declaration of its title to the jewels. Appeal and second appeal preferred by the temple were also dismissed. 82. Laying emphasis upon the dismissal of the suit O.S.No.99/1981, the learned Counsel for the defendant Mr. R. Subramanian contended that in the earlier suit, temple had the chance to amend the plaint and the temple omitted to do so and the suit O.S.No.56/1996 filed by the temple is barred under Or.2 R.2 CPC. In paragraph [4] of the grounds of second appeal [S.A.No.829/2000], the temple has averred that the lower Appellate Court erred in ignoring the legal aspect namely that, "..... the present suit O.S.No.56/1996 was filed in pursuance of the direction of the Court in the earlier suit which amounted to permission granted by the Court to file a fresh suit under Or.2 R.2 CPC .....". the present suit O.S.No.56/1996 was filed in pursuance of the direction of the Court in the earlier suit which amounted to permission granted by the Court to file a fresh suit under Or.2 R.2 CPC .....". Laying scathing attack upon ground no.4 in the Memorandum of Appeal, the learned Counsel for the defendant forcibly contended "the so called direction to file fresh suit is only self imaginatory and no such direction was ever given by the Court". The learned Counsel for the defendant advanced repeated arguments contending that the Courts normally do not give any such direction for filing fresh suit and the plea that the Court gave a direction to file a suit for declaration is only a time saving explanation to get over the bar under Or.2 R.2 CPC. 83. Placing reliance upon 2007(5) CTC 453 – Shiv Kumar Sharma v. Santosh Kumari, the learned Counsel for the defendant has contended that the Civil Court does not grant leave to file another suit. Placing reliance upon (AIR 2003 Rajasthan 319) – Hari Ram v. Lichmaniya and ors.], the learned Counsel further contended that when no permission was obtained from the Court to file fresh suit, subsequent suit instituted by the temple is not maintainable. 84. Rhetoric submission of bar under Or.2 R.2 CPC seems to have substantially weighed in the mind of the lower Appellate Court. Accepting the plea of bar under Or.2 R.2 CPC, the lower Appellate Court held that the earlier suit O.S.No.99/1981 should have been filed for declaration of temples right for the jewels, but the temple omitted to claim relief of declaration of its title to the jewels and therefore, the temple is not entitled to file the subsequent suit in view of bar under Or.2 R.2 CPC. 85. In order to attract bar of Or.2 R.2 CPC, the earlier suit should be founded on the same cause of action. 85. In order to attract bar of Or.2 R.2 CPC, the earlier suit should be founded on the same cause of action. The essential requirement for the applicability of Or.2 R.2 has been considered by the Supreme Court in AIR 1996 SC 378 [Deva Ram and another v. Ishwar Chand and another], wherein the Supreme Court has held as follows: "12.A bare perusal of the above provisions would indicate that if a plaintiff is entitled to several reliefs against the Defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the plaintiff has to place all his claims before the Court in one suit as Or.2 R.2 is based on the cardinal principle that the Defendant should not be vexed twice for the same cause. 13. In Palaniappa Chettiar v. Alagan Chettiar (AIR 1922 PC 228), it was laid down that the plaintiff cannot be permitted to draw the Defendant to Court twice for the same cause by splitting up the claim and suing, in the first instance, in respect of a part of claim only. 14. ..... 15. In Sidramappa v. Rajashetty, ( AIR 1970 SC 1059 ), it was laid down that if the cause of action on the basis of which the previous suit was brought, does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the latter namely, the subsequent suit will not be barred by the rule contained in Or.II R.2 CPC". 86. In order to make Or.2 R.2 applicable, the Defendant must satisfy the following three conditions: (i) The previous and second suit must arise out of the same cause of action; (ii) Both the suits must be between the same parties; and (iii) The earlier suit must have been decided on merits [Nirmala V. Hari Singh - AIR 2001 HP 1 (7)]. 87. In the light of the above, what is to be seen in the instant case is, whether the cause of action, on the basis of which previous suit O.S.No.99/1981 was filed, is identical to the cause of action, on which the subsequent suit, giving rise to the present appeal. 87. In the light of the above, what is to be seen in the instant case is, whether the cause of action, on the basis of which previous suit O.S.No.99/1981 was filed, is identical to the cause of action, on which the subsequent suit, giving rise to the present appeal. If the identical causes of action is established, Or.2 R.2 would immediately become applicable and it will have to be held that the relief claimed in the subsequent suit was omitted to be claimed in the earlier suit and the subsequent suit is liable to be dismissed, in view of bar under Or.2 R.2 CPC. Underlying principle is that the Defendant in both the suits cannot be vexed twice by two separate suits in respect of the same cause of action. In the present case, there is no material to show that cause of action for O.S.No.99/1981 and O.S.No.56/1996 are one and the same. 88. In 1981, admittedly the Defendant refused to cooperate with the temple for opening the Kudavarai for verification of jewels kept in iron safe. Few items of jewels were also missing from Kudavarai, regarding which a criminal case was also registered. Opening of Kudavarai was necessary for the purpose of making inventory of the jewels for verification. That apart, Commissioner of H.R. & C.E. had also issued direction to all the temples in Tamil Nadu to verify the temple jewels. The temple had issued notice to the Defendant calling upon him to cooperate with the temple for opening of Kudavarai for the purpose of verification of jewels. As the Defendant was not cooperating in opening Kudavarai, plaintiff temple had filed O.S.No.99/1981 seeking appointment of Receiver for taking inventory of jewels. In the Written Statement filed by the Defendant, Defendant had denied dedication/endowment and right of the temple. Likewise, only in the Written Statement Defendant had taken the plea that there was no dedication of jewels and if at all the temple want any declaration, it is open to them to file a statutory suit or to take action under the provisions of H.R. & C.E. Defendant had taken defence denying any dedication or endowment of the jewels to the temple. 89. 89. Though the Defendant had denied dedication of jewels and temples right in O.S.No.99/1981, cause of action is only non-cooperation of the Defendant to open the Kudavarai for the purpose of verification of jewels and to appoint the Receiver. In the context of denial of temples right in the earlier proceedings, the temple has filed the subsequent suit O.S.No.56/1996 for declaration of its right over the jewels and also for Permanent Injunction restraining the Defendant from interfering with the enjoyment of the jewels by the temple, while taking them out from Kudavarai. 90. No doubt, the temple could have done well had it filed a separate suit for declaration as to when the Defendant denied the temples right to the suit jewels. Unfortunately, the temple pursued the matter in O.S.No.99/1981 upto the level of second appeal [S.A.No.1955/1983]. In my considered view, non-filing of amendment application in the earlier suit in O.S.No.99/1981 or a separate suit at that stage, seeking for declaration of temples right over the suit jewels, would not in any way affect the temples right of filing the subsequent suit. 91. In my considered view, in both the cases, facts may be the same. But cause of action in both the suits are entirely different. The Defendant had not shown that the second suit O.S.No.56/1996 was in respect of the same cause of action as that on which previous suit was filed and even in 1981, the temple was entitled to more than one relief and the temple omitted to seek for that relief. 92. As the cause of action for both the suits are different, suit O.S.No.56/1996 is not barred and the bar under Or.2 R.2 CPC is not applicable. The lower Appellate Court committed serious and substantial error in holding that the subsequent suit O.S.No.56/1996 is barred under Or.2 R.2 CPC and those findings are liable to be set aside. 93. Plea of res-judicata:- Yet another contention was raised by the Defendant contending that the findings in O.S.No.99/1981 would act as resjudicata for the subsequent suit. As discussed supra, the earlier suit O.S.No.99/1981 was for the limited purpose of seeking for appointment of Receiver. By concurrent findings, Courts have held that an independent suit for appointment of Receiver is not maintainable. Plea of res-judicata:- Yet another contention was raised by the Defendant contending that the findings in O.S.No.99/1981 would act as resjudicata for the subsequent suit. As discussed supra, the earlier suit O.S.No.99/1981 was for the limited purpose of seeking for appointment of Receiver. By concurrent findings, Courts have held that an independent suit for appointment of Receiver is not maintainable. Issues involved in the present suit were not directly and substantially in issue in the earlier proceedings and therefore, the Judgment and findings in O.S.No.99/1981 would not amount to res judicata and the suit would be said to be barred under Section 11 CPC. 94. Plea of adoption – The Defendant claims that he is the adopted son of Muthuthandapani Chettiar and Thangammal. From Ex.A-6, it is seen that the Defendant is the step-brother of Thangammal, i.e. Thangammal is the daughter of Ramasami Chettiar through his first wife and the Defendant is the son of Ramasami Chettiar through his second wife. The Defendant is said to have been adopted by Thangammal under Ex.A-6 Adoption Deed dated 211. 1969. Though the Defendant has claimed that he was adopted by Muthuthandapani Chettiar and Thangammal even in 1947, prior to Ex.A-6, no document had been produced to substantiate the defence plea. The learned trial Judge disbelieved adoption observing that Defendant has not produced document showing the adoption. 95. Defendant had produced copy of various proceedings. Ex.B-9 is the certified copy of the Judgment in S.A.No.22/1995 arising out of some other proceedings. In Ex.B-9, High Court seems to have accepted the plea of adoption. The lower Appellate Court also held that the contention that Defendant was adopted even in 1947 was not supported by any material. However, referring to Ex.B-9 and the circumstances that the Defendant is having one set of keys of kudavarai, the lower Appellate Court held that the Defendant cannot be held to be a stranger. 96. Based upon the earlier proceedings, much argument was advanced both by Defendant and the learned Counsel for the defendant on the question of adoption. The learned Counsel for the defendant insisted the Court to record definite finding as regards the adoption. As rightly observed by the trial Court, excepting Ex.A-6, there is dearth of evidence to prove the adoption even from 1947. Ex.A-6 – Adoption Deed dated 211. 1969 is evidently after the death of Muthuthandapani Chettiar. The learned Counsel for the defendant insisted the Court to record definite finding as regards the adoption. As rightly observed by the trial Court, excepting Ex.A-6, there is dearth of evidence to prove the adoption even from 1947. Ex.A-6 – Adoption Deed dated 211. 1969 is evidently after the death of Muthuthandapani Chettiar. Though in Ex.A-6 recitals were incorporated stating that the Defendant was adopted even during the life time of Muthuthandapani Chettiar, no document had been produced to substantiate the same. In fact, before the Courts below, no specific issue was framed as to the adoption. Having regard to the fact that no issue was framed on adoption and that the Courts below recorded a diverse finding, I am not inclined to go deep into the question of adoption. Assuming for the sake of arguments that the Defendant is the adopted son, in view of other overwhelming evidence, proving adoption of jewels, the Defendant cannot go against the intention of Muthuthandapani Chettiar. Even assuming that the Defendant is the adopted son, it is not open to the Defendant to claim right of the jewels. 97. Permanent Injunction:- Observing that somehow the Defendant has got the keys of kudavarai and therefore, no Permanent Injunction could be granted against the Defendant, who is in possession of keys of Kudavarai, the learned trial Court held that Muthu Thandapani Chettiar had the honour of opening Kudavarai and handing over the jewels and therefore, to sustain the honour given to the family of Muthuthandapani Chettiar, and expressing hope that the Defendant would cooperate with the temple authorities, the trial Court declined Permanent Injunction. While so declining the relief of Permanent Injunction, the trial Court observed that there is no basis for the Defendant for objecting handing over the keys of Kudavarai to the temple authorities the Court directed the Defendant to cooperate with the temple authorities for taking out the jewels as and when required either during festival season for adoring the processional deity or for opening the Kudavarai for verification. 98. Though the trial Court expressed hope that the Defendant would cooperate with the temple authorities, evidently, the Defendant has not been cooperating with the temple authorities in opening the kudavarai and taking out the jewels. The Defendant has been fighting out the litigation for nearly three decades. 98. Though the trial Court expressed hope that the Defendant would cooperate with the temple authorities, evidently, the Defendant has not been cooperating with the temple authorities in opening the kudavarai and taking out the jewels. The Defendant has been fighting out the litigation for nearly three decades. The Defendant has gone to the extreme step of claiming right of the jewels in himself and denying dedication of the jewels and right of the temple. When the plaintiff temple has sought for injunction restraining the Defendant from disturbing the temple of its possession of the suit jewels and when the plaintiff temple has established that right, plaintiff temple is entitled for injunction. 99. As per the established practice, in cooperation with the temple authorities, Muthuthandapani Chettiar is to open the Kudavarai and have the honour of taking out the jewels and handing over to the temple authorities. Over the years, the duty of Muthuthandapani Chettiar had enlarged to become an obligation. The said obligation has become duty enforceable under law. When Muthuthandapani Chettiar was obligated to cooperate with the temple authorities in taking out the jewels and handing over to temple authorities during Adipooram Festival, the temple is entitled for injunction for preventing the Defendant from breach of that "obligation". 100. Perpetual injunction may be granted to the plaintiff when the Defendant invades or threatens to invade the plaintiffs right to or enjoyment of property where the invasion is such that compensation in money would not afford adequate relief and injunction is necessary to prevent multiplicity or judicial proceedings. The Court held that it is well settled that in a suit for injunction the primary question to be considered was one of possession on the date of filing the suit. A person in possession, though without title, can resist interference from another who has no better title than himself and get injunction [ AIR 1999 AP 188 – Buchi Reddy and ors. v. Anathula Sudhakar]. 101. Every year during Adipooram Festival, jewels are to be taken out. when the defendant is bent upon denying the right of the temple and claiming the right of jewels in himself, it would be preposterous to expect the defendant to cooperate with the temple authorities in opening the Kudavarai for taking out the jewels during Adipooram Festival. 101. Every year during Adipooram Festival, jewels are to be taken out. when the defendant is bent upon denying the right of the temple and claiming the right of jewels in himself, it would be preposterous to expect the defendant to cooperate with the temple authorities in opening the Kudavarai for taking out the jewels during Adipooram Festival. The hope expressed by the trial Court expecting the defendant to cooperate with the temple authorities would only end in vain. Each and every year, the temple authorities cannot call upon the defendant to get the keys for opening the Kudavarai for taking out the jewels during Adipooram Festival and invite one or other litigation or dispute. At this juncture, it is relevant to note that the temple Sri Kayarohana Swami Neelayathakshi Amman is a very famous temple, which attracts multitude of devotees during Adipooram Festival from all over the State. The festival of Adipporam is of ten days duration which is said to be a unique festival. On the tenth day, the deity Neelayathakshi is taken in procession in the famous temple car. Peoples sentiments are not out of place in deciding whether injunction should be granted. Balance of convenience lies only in favour of the temple. While so, expecting that the defendant may cooperate, it will not be proper for the Court to refuse permanent injunction. Findings of the Courts below, declining permanent injunction is liable to be set aside. 102. As stated earlier, the defendant is in possession of one set of keys. Without the keys, Kudavarai cannot be opened. Plaintiff temple has only sought for permanent injunction restraining the defendant from disturbing the temples possession of jewels. Though the plaintiff temple has not sought for any mandatory injunction, having regard to the fact that every year Kudavarai is to be opened without any hindrance, in my considered view, mandatory injunction has to be granted. The defendant has to be directed to hand over the keys to Joint Commissioner, Tanjore. 103. In the result, S.A.No.829/2000:- "Judgment and Decree of the lower Appellate Court in A.S.No.6/1999 is set aside and this appeal is allowed. The relief of declaration granted by the trial Court in O.S.No.50/1996 is confirmed. The defendant has to be directed to hand over the keys to Joint Commissioner, Tanjore. 103. In the result, S.A.No.829/2000:- "Judgment and Decree of the lower Appellate Court in A.S.No.6/1999 is set aside and this appeal is allowed. The relief of declaration granted by the trial Court in O.S.No.50/1996 is confirmed. In O.S.No.56/1996, Permanent injunction is also granted as prayed for by the temple; "The Defendant is directed to hand over the keys in his possession of the Kudavarai and the iron safe where the suit jewels are kept, to the Joint Commissioner - H.R.&C.E., Tanjore, within a period of eight weeks from the date of this Judgment; "Joint Commissioner, H.R.&C.E. Tanjore shall hold the keys of Kudavarai and iron safe where suit jewels are kept. During Adipooram Festival, Executive Officer of plaintiff Temple shall inform the Joint Commissioner, H.R.&C.E., Tanjore, the date of festival and the date on which the Kudavarai is to be opened. Such communication has to be sent to the Joint Commissioner I, Tanjore two weeks in advance. "Joint Commissioner, H.R.&C.E., Tanjore shall make himself available at the required time for opening the Kudavarai and iron safe and the Joint Commissioner, H.R.&C.E., Tanjore shall open the Kudavarai and iron safe along with the temple authorities and hand over the suit jewels, after verification by an approved appraiser, prepare a list and receive with due acknowledgment. "Immediately after the Adipooram Festival is over, the Executive Officer shall hand over the jewels to the Joint Commissioner, Tanjore. At the time of taking back the jewels, Joint Commissioner - Tanjore shall again verify the jewels with the help of an appraiser and keep it back in the iron safe, along with the Appraiser Certificate. "Subject to the above directions, Joint Commissioner, HR & CE Tanjore shall keep the keys of Kudavarai and iron safe in safe custody; "Joint Commissioner, HRCE, Tanjore, shall also cooperate with the temple authorities for opening the Kudavarai and iron safe for the purpose of any verification. "It is further directed that as and when the jewels are taken out, the jewels shall be verified with the help of an approved appraiser and list shall be prepared and the jewels shall be kept back only after verification from the approved appraiser. "It is further directed that as and when the jewels are taken out, the jewels shall be verified with the help of an approved appraiser and list shall be prepared and the jewels shall be kept back only after verification from the approved appraiser. S.A.No.1522/1993:- The concurrent findings of the Courts below made in A.S.No.354/1992 on the file of the Subordinate Judge, Nagapattinam, [confirming the Judgment and Decree dated 211. 1990 made in O.S.No.156/1986 on the file of the District Munsif Court, Nagapattinam], is confirmed and this second appeal is dismissed. No costs.