JUDGMENT R.S. RAMANATHAN, J. The defendants are the appellants in the above appeal. 2. The plaintiff filed the suit for a declaration that the temple of 'Sri Kamatchiamman' at Adampur village is not a temple as per the provisions of Hindu Religious and Charitable Endowment Act or in the alternative declaring that the office of the trusteeship to the temple is hereditary in nature and for setting aside the orders and judgment of the Commissioner, H.R & C.E, Madras, made in A.P. No. 30 of 1990 dated 12.11.1992. 3. The case of the plaintiff is that the temple of Sri Kamatchiamman was founded by his grand-father Lakshmana Servai in his patta land at his cost and it was intended for family worship and public were not permitted to worship the deity and no contributions or donations were collected from the public. Further, under the registered deed dated 5.12.1959 an extent of 19 acres of 'nanja' lands were set apart to meet out the expenses connected with the temple. The founder of the temple died in the year 1920 leaving behind him his two sons Arunachalam and Kuppyusamy and Arunachalam died in the year 1940 without leaving any issue and Kuppusamy died in the year 1953 leaving behind his two sons namely the plaintiff and one Lakshmanan and they are only exclusively managing the aforesaid temple. 4. It is further stated that O.A. No. 43 of 1984 was filed for declaring the temple as private temple and it was dismissed by the Deputy Commissioner HR & CE, Tiruchy and the appeal filed in A.P. No. 30 of 1990 was also dismissed by the Commissioner, HR & CE, Madras. Hence, the plaintiff prayed for the reliefs above mentioned. 5. The defendants disputed the claim of the plaintiff and alleged that the temple was constructed in a Government poromboke land and there is no proof for the allegation that the temple was constructed by the plaintiff or his predecessor in title at their own expenses. Further, Viswakarma Community people, who are residing in that locality are performing festival in Adi month every year in the temple and the origin of the temple is not known and the plaintiff is not entitled to declaration and other reliefs as prayed for. 6. Before the lower Court, the plaintiff examined himself as P.W.1 and one another witness and marked 4 documents. 6. Before the lower Court, the plaintiff examined himself as P.W.1 and one another witness and marked 4 documents. The defendants marked a file relating to the temple. 7. The lower Court on the basis of the pleadings and evidence framed the following issues: 1. Can the temple be declared as not a religious institution as prayed by the plaintiffs? 2. Or in the alternative can the plaintiff be declared as a hereditary trustee of the temple? 3. To what relief the plaintiff is entitled to? 8. The lower Court gave a finding that the temple is not a religious institution and decreed the suit. Aggrieved by the same, the present appeal is filed by the defendants. 9. The point for consideration in this appeal is whether the temple can be declared as not a religious institution and if declared as a public temple, can the appellant be declared as Hereditary Trustee? 10. Before adverting to the facts of the case, it is relevant to see the definition of religious institution. 11. Section 6(18) of the Tamil Nadu Hindu Religious & Charitable Act, defines "religious institution" means a Math, temple or specific institution. This definition was substituted by an act of 10 of 2003 and thereafter, the original definition was restored by 4 of 2008. Therefore, for the purpose of this case, the definition of religious institution is as stood now. 12. Section 6(20) defines, temple which means a place by whatever designation known, 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 of any Section thereof, as a place of public religious worship; Therefore, from the definition of religious institution and temple, a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community or of any Section thereof, as a place of public religious worship will be construed as a temple. 13. In this case, it is contended by the respondent/plaintiff that it is a private temple. Admittedly, it is Kamatchiamman temple, and though the respondent/plaintiff claimed that the temple was constructed in the patta land by his ancestor, no proof has been produced by him, except Exhibit A-1, the settlement deed dated 5.12.1959, whereby lands were settled by Ramanathan Servi for conducting festivals and poojas in the Kamatchiamman temple. Admittedly, it is Kamatchiamman temple, and though the respondent/plaintiff claimed that the temple was constructed in the patta land by his ancestor, no proof has been produced by him, except Exhibit A-1, the settlement deed dated 5.12.1959, whereby lands were settled by Ramanathan Servi for conducting festivals and poojas in the Kamatchiamman temple. No doubt in that settlement deed, it was mentioned that the temple was constructed by the family members and it is the family deity. Except the recitals in Exhibit A-1, no document has been produced by the respondent/plaintiff to that effect the temple was constructed by his ancestors. 14. P.W.2 also admitted in his evidence that during pooja outsiders would come and participate and during festivals, people, who are originally in that area and who migrated from that area, used to come and participate and the public contributed cash and kind during the festival period. Therefore, from the evidence of P.W.2 also, it is made clear that public are worshiping the temple as of right and they also contributed money for the festivals. A perusal of Exhibit B-1, the file relating to the temple would further make it clear that there is no door for the temple and it is situate in the Government poromboke and Viswakarma Community people in and around Karaikudi are conducting festival in the month of Adi. Therefore, from the evidence of P.W.2 and the records available in this case, one can safely come to the conclusion that the public are worshiping the deity as of right in the temple and it was not proved to be dedicated only for the family members of the respondent/plaintiff and the public are using the temple for public religious worship and hence, I hold that the finding of the lower Court that the temple is not a religious institution as defined in the Act is without any basis and is liable to set aside. 15. It was argued by the learned counsel appearing for the respondent that the settlement deed Exhibit A-1 would prove that it is a private temple. As stated supra, in that deed it was mentioned that the temple was constructed by the plaintiff's ancestor and the temple was established for the family only. 15. It was argued by the learned counsel appearing for the respondent that the settlement deed Exhibit A-1 would prove that it is a private temple. As stated supra, in that deed it was mentioned that the temple was constructed by the plaintiff's ancestor and the temple was established for the family only. In my opinion, when the plaintiff is not able to prove the origin or failed to produce any evidence to show that the temple was constructed by his ancestors and the fact that the temple is situate in a porompoke land and villagers are worshiping the deity as of right and Viswarkarma Community people are performing poojas in the month of Adi, all would go to show that the temple is only public temple and the Court cannot declare it as a private temple only on the basis of Exhibit A-1. My finding is further fortified by the decision in the case of AIR 1980 SC 2036 : (1981) 1 SCC 445 , so far as Tamil Nadu is concerned there is 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 in order to establish that a temple is a private temple. In the same judgment, the vary situation of temple on Government property was also taken as a piece of evidence in support of public temple. In the case on hand, as already stated above, there was neither pleading nor clinching evidence as to who founded the temple and as to how the temple belonged to the appellants. It is also on record that the temple was constructed on pormboke land. Under the circumstances, it is clear that the appellants have failed to establish that denomination of Rajus constructed the temple." The above passage in the judgment squarely applies to the facts of the case and therefore, I have no hesitation to hold that the Kamatchiamman temple is not a private temple (sic) and but only a public temple. 16. The Next point for consideration is whether the plaintiff can get declaration as a hereditary trustee-ship of the temple? 17. 16. The Next point for consideration is whether the plaintiff can get declaration as a hereditary trustee-ship of the temple? 17. Section 6(11) of the Tamil Nadu Hindu Religious & Charitable Endowment Act defines hereditary trustee as follows: "hereditary trustee" means the trustee of a religious institution, the succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by founder, so long as such scheme of succession is in force:" 18. Admittedly, the respondent/plaintiff has not established how he got the hereditary trustee-ship whether it is by way of devolution or directly by the founder of the temple by usage. It has been held in earlier judgments of this Honourable Court that if the management of the temple was done without anybody inference, for more than three generations then a person can be declared as hereditary trustee of the temple in the absence of any other evidence. In this case, except the oral evidence of P.W.1, there is no proof that the plaintiff and his ancestors were in exclusive management and looking after the affairs of the temple. Therefore, it cannot be held that the plaintiff is a hereditary trustee of the temple and he is entitled to that declaration. 19. The lower Court without properly appreciating the evidence, has erroneously held that the temple is not a religious institution. That finding is against the definition and the evidence available in this case. Hence, I have no hesitation to set aside the finding of the lower Court and hold that Kamatchiamman temple is a public temple and the plaintiff has not proved that he is entitled to declaration of hereditary trusteeship and therefore, I set side the finding of the lower Court to that effect. 20. In the result, the decree and judgment of the lower Court is set aside and the suit in O.S. No. 282 of 1993, on the file of the Sub Court, Pudukottai, is dismissed and the appeal is allowed. There is no order as to costs. Appeal allowed.