Judgment :- 1. Both the appeals are preferred against the judgment and decree of the learned Subordinate Judge, Chidambaram made in O.S.No.15 of 1997 dated 5.12.2002. 2. Following are the allegations in short available in the plaint:- 2.(a) There is a private temple belonging to the petitioner’s family called Arulmighu Bhuvaneswari Ellai Amman Temple situate at Mel Bhuvanagiri Village, Chidambaram. The said private temple was constructed by the ancestors of the plaintiff. It has no property of its own except the temple site, occupied Grama Natham. From time immemorial patta was not granted to any body, by the Government, as the entire village, with all houses, building etc., are in Natham. The property in which the temple and the house are constructed by the Forefathers of the plaintiff and they enjoyed it as their own. 2. (b) The private temple was managed by Logappa Naidu in or about 1870, and after his life time, his son Kuppuswamy Naidu managed the same. After him, his son Pakkiriswamy Naidu continued to manage the administration of his family temple till he breathed his last. After Pakiriswamy Naidu’s death, his son Krishnaswamy Naidu, the father of the Plaintiff succeeded to the management of his family private temple as his eldest son, like his fore-fathers who have succeeded to the management of the temple in line of succession till 1984. Thereafter the plaintiff succeeded to the management of the private temple as the eldest son of his family and has been in effective control and management till date without any third party’s interference either by the Government or by the defendants. Not only the management of the Temple, but the performance of poojas, worship etc., have been done only by the plaintiff and his ancestors. No one ever interfered in the past for over a century and more. The private nature of the institution within the family of the plaintiff for over five generations uninterruptedly, was asserted, accepted and recognized by the public. 2. (c) The father of plaintiff Krishnaswamy Naidu, working as a constable in Bhuvanagiri Police Station was not only an ardent worshipper of his family deity Bhuvaneswari Amman but also used to cure ailments of the public who were living in and around Bhuvanagiri by his enormous acute supernatural powers. He was leading an ascetic life. 2. (c) The father of plaintiff Krishnaswamy Naidu, working as a constable in Bhuvanagiri Police Station was not only an ardent worshipper of his family deity Bhuvaneswari Amman but also used to cure ailments of the public who were living in and around Bhuvanagiri by his enormous acute supernatural powers. He was leading an ascetic life. Most of the Time, he used to be in "Yoga Nillai” before his family Goddess, Bhuvaneswari Ellai Amman. Devotees who used to come to have darshan of him, and for getting ailments cured by his “yoga Nillai” in turn, used to donate liberally as a holy offerings (Pathakanikkai) to him even without himself asking any money from them. Bhuvaneswari Swamigal used to be in most of the times in "Yoga Nillai" before the Amman. The pathakanikkai poured to Krishnaswamy by his devotees was used by him for reconstructing his private family temple, as he always believed, that he was blessed by the Goddess with such powers to cure and help the poor and other people. The temple which was in a highly dilapidated condition, drew his attention, and he decided to reconstruct it. 2. (d) He started the work of demolishing the entire old structure and put up a new construction which he did spreading over a period of 25 years in slow stages. Unfortunately he died on 26.01.1984 without completing the construction and performing kumbabishekam and he was succeeded by his son, the plaintiff herein who followed his father's footsteps in the matter of attaining "Gnanathirushty" and attaining "Yoga Nillai" and curing ailments by his power. He also completed his family Temple construction and performed kumbabishekam on 21.06.1989. The plaintiff's father constructed a dwelling house very near to the private temple and got E.B. Connection, living there till he breathed his last. 2. (e) Around the temple there is a compound wall erected by the plaintiff and the Temple is under the lock and key of the plaintiff. The temple is being managed and poojas performed by him. After the demise of the said Bhuvaneswari Swamigal, his mortal remains were interned and a Samadhi was erected on it by the plaintiff within the premises, adjoining the temple to the knowledge of all the public of Bhuvanagiri and the plaintiff's family people are worshipping the samadhi, performing Guru pooja to it. No Hundi has been kept in the temple. After the demise of the said Bhuvaneswari Swamigal, his mortal remains were interned and a Samadhi was erected on it by the plaintiff within the premises, adjoining the temple to the knowledge of all the public of Bhuvanagiri and the plaintiff's family people are worshipping the samadhi, performing Guru pooja to it. No Hundi has been kept in the temple. No collection has been made for day to day maintenance and upkeep of the temple. The temple has no Rajagopuram, Dwajasthambam, Praharam, Bell etc., etc., nor utchavasbeing performed which are the ordinary features of a public Temple. In fact, it lacks all the ingredients of public Temple. Even daily poojas are not being performed as per Agamasastras. 2. (f) On 7.09.1968 the plaintiff’s father executed a settlement deed in favour of his son wherein the private character of the institution has been well brought out. The plaintiff’s father has in fact mortgaged his personal property and raised funds for the construction of the New Temple. 2. (g) The caste men of the plaintiff who were the staunch devotees of his father, got jealous of the plaintiff who followed the footsteps of his father in his early lifehood of 20 [twenty] and got Yoga Nillai or Gnana Thirushti and thereby, rose to fame, began to create problem and trouble to him. So they instigated defendants 1 to 3 and others to file an application before the Deputy Commissioner, Hindu Religious and charitable Endowments Department, Myladuthurai in O.A.80/89 under sec.64[1] of Act 22[1959] as if the institution is denominational in character belonging to Naidu community people and sought for an order of appointment of a Fit person for the Temple behind the lack of the plaintiff. Coming to know about it he preferred an appeal to the commissioner and got a stay of the operation of the said order. The plaintiff as per legal advise moved an application under sec.63[a] of Act 22 of 1959, with the Deputy Commissioner, Hindu Religious Charitable and Endowments Department, Mayiladuthurai in O.A.No.4/90, seeking a declaration that the institution in question is not a religious institution as per the provisions of the Hindu Religious and Charitable and Endowments Act. The defendants 1-3 of course got themselves impleaded as partly respondents in the said application. The defendants 1-3 of course got themselves impleaded as partly respondents in the said application. The Deputy Commissioner allowed the application of the plaintiff, declaring that the suit temple is not religious institution as per the provisions of the Hindu Religious Charitable and Endowments Act 22/1959. 2. (h) Aggrieved over that order, the defendants preferred an appeal to the Commissioner, Hindu Religious Charitable and Endowements Department, Chennai, in A.P.No.9/96 and the Commissioner on 11-10-96 allowed the appeal of the Defendants and declared that the suit temple is a religious institution as per Sec.6[18] and 6[20] of Act of 22[1959]. Hence the plaintiff is now constrained to file this suit questioning the legality, validity, propriety of the order of the 4th defendant, the Commissioner, passed in AP 9/96 dated 11-10-96, before the Honourable Court. 3. In the written statement filed by the defendants 2 and 3 it is averred as under:- 3. (a) These defendants deny the allegations contained in the plaint except those which are specifically accepted. It is false to state that the temple at Mel Bhuvanagiri village is a private temple belonging to the plaintiff's family, that there is no detail as to the name of the person who is alleged to have constructed the temple and the year in which it was constructed, that the alleged documents of the year 1865 and 1871 are not true, that they are manipulated for the purpose of this case and they are inadmissible in evidence, that there was no house in the place before the renovation, and that the father of the plaintiff was a Government servant, was residing elsewhere wanted to grab at the property, created records. 3. 3. (b) The temple was never in the management of the plaintiff's ancestor much less as a private temple, that there is no genological table given by the plaintiff incorporating all the heirs of the plaintiff's ancestors, that the suit and the O.A. Filed by the plaintiff is bad for non-joinder of parties, that there are registered documents over 60 years old to show that the temple was managed by its then trustees hailing from Naidu Community of Bhuvanagiri, that the temple is a religious denomination belonging to the Naidu community people of Bhuvanagiri, that the plaintiff's father was entrusted to do the renovation work by the Naidu community people, that most of the community people migrated to far off cities and foreign countries, that the suit temple being their Kuladeivam, they wanted to reconstruct the temple after demolishing the old structure, that the plaintiff's father was quite sincere in his duties during the early period of renovation work, that later he became selfish and wanted to grab at the property creating documents and one such is the alleged settlement deed to his son and that the defendants believed the plaintiff's father and had been giving large sum of money for the renovation work. 3. (c) It is false to state that the plaintiff's father was leading an ascetic life. He was a greedy and avaricious man, having so many children and also misappropriated the funds of the defendants and other public on the guise of renovation work, that after the demise of the father the plaintiff followed his father's foot steps in misappropriating public funds, that defendants came to know only during Kumbabhishekam and they questioned his activities and requested him to give a true and proper account, but he secreted the temple funds and he kept all the registers and bills with his custody and never returned them despite several reminders. 3. 3. (d) The defendants and their family members are worshippers of the suit temple contributed huge sum for the renovation, that all their relatives and friends residing at far off countries also contributed liberally for the construction work, that several payments were made for the construction by bank draft and cheque, that the defendants and their relatives wanted to construct a rest house so as to enable them to stay during their visit to the village and worship the deity, that the criminal intention of the plaintiff was made known to all only during kumbabhishekam, that thereafter misunderstanding arose between parties and the plaintiff was not willing to vacate the house and also refused to hand over the temple keys, account books and other records. 3. (e) The defendants therefore filed O.A.8/89 before the Deputy Commissioner, Mayiladuthurai for better administration of the temple, that the plaintiff filed O.A.No.4/90 under Section 63(a) of the Act in order to squat on the property till the final disposal of O.A.4/90, that a fit person was appointed but the plaintiff finding that the he will be thrown out of the temple and temple's house, claimed that the nature of the institution should be decided before the appointment of fit person and hence the order could not be worked out, that in order to prevent the plaintiff from gaining time and squatting on the property, thought it fit to withdraw O.A.8/99 with liberty to file fresh petition after the disposal of O.A.No.4/90 and accordingly the application was withdrawn, that in O.A.No.4/90 the plaintiff was able to get a favourable order in his favour against which the defendants preferred appeal before the Commissioner and the same was allowed and that the plaintiff now filed this Appeal Suit. He cannot have any grievance since the order of appeal was pronounced after considering the facts, the documents filed and the law on the subject and hence this suit may be dismissed with costs. 4. He cannot have any grievance since the order of appeal was pronounced after considering the facts, the documents filed and the law on the subject and hence this suit may be dismissed with costs. 4. The contents contained in the written statement filed by the Commissioner of H.R. & C.E., the 4th defendant are as follows: 4.(a) Most of the allegations contained in the plaint are all after thought and they were not stated in the main O.A., that it is false that the suit temple is a private temple belonging to the plaintiff's family and the same was constructed by their ancestors, that the alleged documents of 1865 and 1871 are not valid nor will they confer any right or interest on the plaintiff in respect of the suit temple, that the documents are fabricated for the purpose of the case, that no details as to who constructed the temple and when the temple was constructed are given and that the plaintiff's father has admitted in earlier civil suit proceedings that the temple had been in existence from time immemorial and was constructed during the period of Pallava Kingdom. 4.(b) The plaintiff has not mentioned anything in the main O.A.No.4/90, that the plaintiff's father has admitted in the earlier proceedings that the pooja in the temple was done by engaging a poojari, that the temple is a public temple and the very name of the temple, its location, the existence of karpagraham, Dome, Kalasam, Palipeedam, Arthamandapa, Nagar Pradishtai and Neem tree in praharam will clearly show the public nature of the temple, that merely because the plaintiff's father was called as Bhuvaneswari Swamigal and his statue is kept in the front will not confer any ownership of the temple to the plaintiff and that the plaintiff's father had obtained donations from the public in large sum of money under the guise of renovation of the temple and also for the Thiruppani and Kumbabhishekam. 4.(c) The Thiruppani work was done with the public money, that the kumbabhishekam was conducted by the public at large and the worshipping public gathered at large and participated on their volition and accord, that the compound wall of the rest house were constructed only when the Thiruppani work was done and it will not render the plae as his private premises, that the alleged Samathi of the plaintiff's father is outside the praharam and compound wall and it is not inside the temple and that it being a small temple there is no Rajagopuram and Dwajasthambam. 4.(d) The alleged settlement deed by the plaintiff's father is a concocted document and it will not affect the right of the temple or convert the nature of the temple into a private one, that the mere reading of the document and the way in which it is written and registered, will clearly establish how the plaintiff's father during his later period wanted to grab at the temple property and shifted his stand taken in the civil suit, that the order of the Commissioner is based on the material documents, evidence and on the principles of law and that the suit filed without notice under Section 80 C.P.C. is not maintainable and that the suit may be dismissed with costs. 5. After analysing the pleadings, evidence and materials on record, the learned Sub-Judge, Chidambaram, has decreed the suit as prayed for, holding that the suit temple is private temple belonging to the family of the plaintiff. Aggrieved over this, the defendants 1 to 3 filed appeal in A.S.No.1012 of 2003 and 5th defendant has preferred appeal in A.S.No.1025 of 2003. 6. The following points have arisen for consideration in this appeal:- “1. Whether the suit temple is private temple belonging to the family of the plaintiff as contended? 2. Whether the suit temple is being maintained by the people belonging to Naidu community as pleaded by defendants 1 to3? 3. Whether the suit temple is a public temple as defined in Section 6(20) of HR and CE Act? 4. Whether the suit is bad for non-joinder of parties? 5. Whether the suit is maintainable without notice to 4thdefendant u/s 80 C.P.C.? 6. To what reliefs are the parties entitled to? Points No.1 to 3: 7. The suit temple is situate in Bhuvanagiri, Chidambaram Taluk, known as Arulmigu Bhuvaneswari Ellaiamman Temple. 4. Whether the suit is bad for non-joinder of parties? 5. Whether the suit is maintainable without notice to 4thdefendant u/s 80 C.P.C.? 6. To what reliefs are the parties entitled to? Points No.1 to 3: 7. The suit temple is situate in Bhuvanagiri, Chidambaram Taluk, known as Arulmigu Bhuvaneswari Ellaiamman Temple. It is the case of the plaintiff that the temple is situate in Natham, that his forefathers occupied the same and had been managing the suit temple along with the adjacent vacant property measuring totally 1.71 acres in Natham R.S.No.93/1A/1A at Mel Bhuvanagiri, that the temple was founded by the forefathers of the plaintiff, that nobody else from public are not having any right over the suit temple and the Deputy Commissioner HR & CE, Mayavaram has held in O.A.No.4/90, that it is a private temple belonging to the plaintiff family and the appeal in A.P.No.9/96 filed by the defendants 1 to 3 was allowed by the Commissioner of H.R. & C.E., Chennai, and hence the plaintiff has come forward and hence the plaintiff has come before the Civil Court. 8. Conversely, it is contended by the defendants 1 to 3 that the suit temple is belonging to the Naidu community people of Bhuvanagiri, that it is not correct to state that the plaintiff and his forefathers have been managing the suit temple as of their own and that the plaintiff is a trespasser into the property including the suit temple. 9. 9. Mr.V.K. Vijayaraghavan, the learned counsel appearing for the appellants/1to3 defendants in A.S.No.1012 of 2003 would contend that the case of the plaintiff is bereft of particulars of name of founder of the temple, that he has failed to establish origin of the temple i.e, in which year it came to existence, that the father of the plaintiff had admitted in an earlier proceeding that the temple was in existence even in Pallava period, that apart from Naidu community people, the public also are having Dharshan in temple, that it is admitted that the temple was re-constructed with the funds received as donations, that Kumbabishekam of the temple was performed on 21.6.1989 only after the funds obtained from various members of the Naidu community, that the documentary evidence would go to show that third parties were also in management of the temple, that the contribution received from third parties would indicate that the temple is not a private temple, that there is a presumption that in Tamil Nadu all the temples are public temples, that the existence of Karpagraham, Mandapam, Balipeedam, Praharam, Vimanam, etc., are specific features to hold that it is public temple, that a procession deity is available, that adequate evidence have been let in by the appellants which were not properly appreciated by the trial Court and that the appeals deserve to be allowed. 10. Mr. 10. Mr. Kannan, Special Government Pleader appearing for the appellant in A.S.No.1025 of 2003 would argue that the suit temple is public one which is meant for the public for worshipping, that the temple and the vacant land adjacent thereto are situate in Natham poramboke that when it is found that any temple is situate in Natham poramboke, it is a public temple, that the features available in the temple would show it is a public temple, that for renovation, much sum of money was collected by the plaintiff by means of which it can be easily seen that the suit temple partakes the character of a public temple, that merely because the father of the plaintiff was called as Bhuvaneswari Swamigal and the presence of his statue on the roof of temple would not confer any exclusive ownership of the temple to the plaintiff's family, that O.A.No.80/99 filed by the defendants 1 to 3 was withdrawn before the Deputy Commissioner of Hindu Religious and Charitable Endowments with liberty to file a fresh petition and that the father of the plaintiff wanted to grab at the temple property. 11. Mr. 11. Mr. Srinath Sridevan, the learned counsel appearing for 1st respondent / plaintiff in both the appeals would contend that there is no clinching evidence to see that the public are worshipping as a matter of right, that the Commissioner's Report in Ex.A.16 would show that the temple and the residential house of the plaintiff are situate inside compound which are under lock and key, that nobody could get entry into the compound without permission of the plaintiff, that the available evidence would show management of the temple is not vested with any larger group of Naidu community people but only with family members of the plaintiff, that even though certain documentary piece of evidence is available to show that the plaintiff received money from third parties, it was only for performing Kumbabhishekam and it is well settled that sporadic collection of money could not be an evidence to conclude that it is a public temple, that it is not shown that day to day maintenance of the temple and for daily poojas performed therein public contribution is availed, that the Samathi of father of plaintiff is constructed just adjacent to the temple hall and had it been a public temple, it would have been objected by the public, that the father of the plaintiff, though was working as a police constable, was possessing supernatural powers, who used to foretell the future of devotees and hence they gave offerings (padhakanikkai) by means of which he was maintaining the temple, that even though certain features akin to the public temple may be available, it is the settled law that they are not decisive proof to conclude that it is a public temple, that unimpeachable documents are available in Exs.A4 and A5 executed by Krishnasami, father of the plaintiff would indicate that he alienated his own properties for the maintenance and upkeep of the suit temple and that even though some documents would show that the plaintiff and his father were described as hereditary trustees, it could not be a circumstance to infer that it is a public temple and urge the claim and hence it could not be a bar for the Court to grant the relief and that out and out the temple is a private one. 12. 12. In order to ascertain the nature of the suit temple whether it is private or public, the oral evidence on record as well as the exhibits produced by both parties ought to be scrutinised in depth. As regards the origin of the temple, the evidence available on behalf of the plaintiff is that the temple has been in existence from time immemorial. The plaintiff P.W.1 would come out with an evidence that the suit temple had been in possession of his forefathers. His father is Krishnaswamy Naidu and Pakkirisamy Naidu is father of Krishnaswamy Naidu. Kuppusamy Naidu is father of Pakkirisamy Naidu and one Logappa Naidu is father of Kuppusamy Naidu. It is also stated that Logappa Naidu constructed the suit temple in 1800 and he died in 1873. Ex.A.29 is copy of plaint filed in O.S.No.344 of 1964 on the file of the District Munsif Court, Chidambaram and Ex.A.30 is the written statement filed by the defendants in the suit. One Sanjeevi Chettiar filed the suit with respect to the suit temple for a declaration that the land in which the temple situate belongs to him in the capacity as trustee of Vanuva Chettiar Community. In this case the above said Krishnaswamy Naidu is first defendant. Ex.P.30 is the copy of written statement filed by him in which he has alleged that he is the hereditary trustee of temple and temple has been in existence from the period of the Pallava Kings, that it is an ancient one attracting much number of pilgrims from the villages all around and the sites adjacent to the temple was dedicated for the use of the temple and have been in the possession and enjoyment of the temple from the time immemorial. 13. P.W.1 also says that his father was working in the police department, that he was possessing divine powers, that he used to remain in most of the time in "Yoga Nillai", that he was medically treating the devotees and by his mystic power of clairvoyance i.e., exceptional deep insight, also foretelling their future and hence they used to give offerings and the same was spent by his father for the renovation of the temple. 14. Krishnaswamy had executed a registered settlement deed on 7.4.1968 under Ex.A.1 endowing the land for the temple. In this document he has mentioned that the property belonged to him. 14. Krishnaswamy had executed a registered settlement deed on 7.4.1968 under Ex.A.1 endowing the land for the temple. In this document he has mentioned that the property belonged to him. But it is not his patta land. There is no record to show that he was the exclusive owner of the property. Even though he has made endowment the property in favour of the temple, he is not competent to make such an endowment. Ex.A.3 is a rectification deed for Ex.A.1. Exs.A.4 and A.5 are unassailable pieces of evidence to show Krishnaswamy alienated his own properties and raised funds for the maintenance of the suit temple. Ex.A.4 is sale deed dated 20.1.1970 executed by Krishnaswamy in favour of one Mirasu Ramasamy Naidu stipulating that for the purpose of renovation of temple, he sold the property for Rs.1700/-. Ex.A.5 is dated 24.11.1971 a registered mortgage deed executed by Krishnaswamy in favour of Viswanatham Pillai for a sum of Rs.2000/- for the purpose of further construction of the temple. 15. Ex.A.7 is proceedings of Executive Officer, Bhuvanagiri Town Panchayat, evidencing the fact that tamarind and Illuppai trees standing on the land in which the temple is situate, were being enjoyed by Krishnaswamy and he was permitted to continuously enjoy the trees. Ex.B.1 is proceedings of Natham Survey Inspector, Chidambaram dated 7.12.1990, stating that in the revenue records the land and the temple are entered in the name of temple. 16. P.W.1 has produced various records, bills such as receipts for electricity consumption charges, property tax receipts etc., In O.S.No.119/91 on the file of the Sub-Court Chidambaram an Advocate Commissioner was appointed, who inspected the suit temple and filed plan and report in Ex.A.8. In the plan the commissioner has shown the locations of the temple samadhi of Krishnaswamy Naidu, the house where the plaintiff is residing and a choultry as well. The Samathi of Krishnaswamy is situate just outside the wall of the temple. D.W.5 is deposing, on behalf of 4th defendant, who is working as Inspector in the Deputy Commissioner's office at Cuddalore. The Samathi of Krishnaswamy is situate just outside the wall of the temple. D.W.5 is deposing, on behalf of 4th defendant, who is working as Inspector in the Deputy Commissioner's office at Cuddalore. In the cross examination he has stated that in a file pertaining to the temple maintained by H.R. & C.E. Department, Chidambaram, it is mentioned that a common entry is available for both the residential house of plaintiff and the temple, but without the permission of the inmates of the house nobody could worship the temple and that the Inspector of the department in his report dated 14.3.1991 has stated that "on enquiry he came to know that the temple was constructed by the forefathers of plaintiff with their own funds. It is also in his evidence that the temple and the land are comprised in Natham and this is "occupied in Natham". In his chief examination he would state that the property is in Natham poramboke and if the temple is to be termed as a private one, it should have been constructed by the claimant with his own fund. 17. The oral testimony of D.W.1 who is 3rd defendant, would reveal remarkable features available in the temple. D.W.1 would say that the residential house has been in existence from 1945, where plaintiff's father was residing and he started renovating the temple from 1965 and in 1989 after his death the plaintiff P.W.1 performed Kumbabishekam and Ex.A.12 is invitation for the same. It is his evidence that if one enters into the compound he can see an altar (Palibeedam) and on the west side one hall is there, behind which Sanctum Sanctorum (Karpagraham), over which Vimanam (temple roof) is present, that inside the sanctum sanctorum, Bhuvaneswari Ellaiamman idol made of bronze has been installed, that an idol of deity Dhandapani made of metal is also there, and that two granite idols of Bhuvaneswari Ellaiamman are also there. 18. 18. D.W.1 in his chief examination would say that the suit temple is not belonging to the forefathers of plaintiff, that Naidu community people then and there would nominate persons and they would be managing, that he with his family members used to come on the occasions of Aadi 18 (Tamil month), Deepavali and other auspicious functions like marriage, that they have been worshipping the temple by generation to generation, that around the temple a compound wall is there, that an altar, procession deity and inner praharam are there, that opposite to altar a snake statue made up of granite is situate, and that the residential house in which the plaintiff is residing recently was meant for stay of devotees, but now the plaintiff is occupying the house. 19. In his cross examination he deposes that the survey record of the year 1922 is with him, in which it is stated that the suit property belongs to the temple, that he has got other records to show that the temple should be managed by the Naidu community people and that in the above said record it is not stated. 20. It is his further evidence that in 1938, the temple was completely dilapidated and one tiled structure alone was used as temple and Krishanasamy Naidu was trustee in 1961 and he has no document to show that the said Krishnaswamy Naidu was trustee, that in 1989 the construction of the temple was over and a sum of Rs.1,75,000/-was expended, that no estimate was prepared that he is auditor by profession and he checked the temple accounts in January 1988 in which the particulars of payments are available, that the accounts were found correct and there was no error and that so many persons also checked the accounts. This evidence on the part of D.W.1 would vouch safe the case of the plaintiff. P.W.2 is a resident of Bhuvanagiri who says that the temple was in a dilapidated condition and Krishnaswamy Naidu reconstructed the temple. P.W.3 is also a resident of Bhuvanagiri who would also say that the temple was in the dilapidated condition and Krishnaswamy Naidu reconstructed the temple. 21. D.W.2 claims that he is cousin brother of plaintiff and Defendant No.1. P.W.2 is a resident of Bhuvanagiri who says that the temple was in a dilapidated condition and Krishnaswamy Naidu reconstructed the temple. P.W.3 is also a resident of Bhuvanagiri who would also say that the temple was in the dilapidated condition and Krishnaswamy Naidu reconstructed the temple. 21. D.W.2 claims that he is cousin brother of plaintiff and Defendant No.1. D.W.2 in his cross examination would depose that prior to the existing temple there was a tiled shed, that the existing temple has been constructed afresh right from the foundation and that they have not prepared any estimation for the temple. He also says that when he (D.W.2) was in his tender years, the temple got crumbled and the father of the plaintiff took initiatives for construction of temple in the dilapidated structures. In view of the above said evidence, particularly from the admission of D.W.1, it comes to light that the temple, at one point of time was miserably dilapidated and the father of the plaintiff reconstructed it with his own funds as evident from Exs.A.4 and A5 and also from the oral evidence of D.Ws.1, 2, P.Ws.2 and 3. D.W.2 has produced certain photographs in Exs.B.35 to B.41 which have been marked subject to objection. Though in some photographs it is seen that the public are seen for celebration, the gathering was for Kumbabhizhegam. There is no iota of evidence to see that procession deity is in the temple and it was taken in possession during temple festival. 22. From the above said evidence, it transpires that earlier, the temple structure was existing which got dilapidated in entirety in one point of time and a tiled shed was put up in that place and Krishnaswamy Naidu reconstructed the entire temple structure from foundation which is now in existence. It is also seen that the present temple building is not the one, which existed previously. 23. On the defendant side, Ex.B.5 has been produced stating that the lineal forefathers of plaintiff were not holding the position of trustee for the suit temple, but some other persons had been in such capacity. Ex.B.5, a registered lease deed dated 5.4.1933 executed by one Pakkiri Naidu S/o Muthu Naidu in the capacity of Sri Ellaiamman Koil Trustee. 23. On the defendant side, Ex.B.5 has been produced stating that the lineal forefathers of plaintiff were not holding the position of trustee for the suit temple, but some other persons had been in such capacity. Ex.B.5, a registered lease deed dated 5.4.1933 executed by one Pakkiri Naidu S/o Muthu Naidu in the capacity of Sri Ellaiamman Koil Trustee. Ex.B.25 dated 12.5.1962 and Ex.B.26 dated 5.5.1962 are registered Lease Deeds executed by Krishnaswamy Naidu father of plaintiff in the capacity of Sri Ellaiamman Koil Trustee. Exs.B.27 and B.28 are also registered lease deeds dated 15.6.1962 and 19.6.1962 by means of which certain properties were given for lease to third parties. In Ex.B.27 Krishnaswamy Naidu has been described as Trustee whereas in Ex.B.28 he has been mentioned as Hereditary Trustee. On the strength of these recitals, the defendants' side argues that in one hand the plaintiff contends that his forefathers were holding and treating the said temple as Private Temple, but on the other, as described in the above documents they have also claimed office of Hereditary Trusteeship for the temple and hence both the contentions are inconsistent pleas which is not sustainable and impermissible. 24. In support of his contention the learned counsel for the appellants Mr.V.K. Vijayaraghavan would place reliance upon a decision of this Court in 1990(2) L.W.60 [R.Narayanaswami and others v. Sri Sidda Raja Manicka Prabhu Temple and another] in which it is held that the plaintiff cannot set up an inconsistent plea that the temple is a private one, while his earlier plea was that it is a public temple. It is further observed thus: "The plaintiff was entitled to choose one of the two inconsistent remedies, namely for a declaration that it is a private temple and for a declaration that the office of the trustee is hereditary, and since he elected one remedy namely for a declaration that he is holding the office as hereditary trusteeship and pursuing that same, he cannot thereafter turn round and come forward with a prayer for the relief that the suit temple is a private temple." 25. Even though there are materials available to show that Krishnaswamy Naidu styled himself as Trustee or Hereditary Trustee for the suit temple, presently it is not the plea of the plaintiff nor the relief sought for by him that he is holding the position as a Trustee or Hereditary Trustee. Even though there are materials available to show that Krishnaswamy Naidu styled himself as Trustee or Hereditary Trustee for the suit temple, presently it is not the plea of the plaintiff nor the relief sought for by him that he is holding the position as a Trustee or Hereditary Trustee. In the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, the term Hereditary Trustee is defined in Section 6(11) 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 the founder, so long as such scheme of succession is in force." 26. As per the intention of the legislature, the Hereditary Trustee has to be a one whose office devolves by hereditary right or it is to be regulated by itself or is specifically provided for by the founder. Except these documents, no other documents are available to show that Krishnaswamy Naidu was treated as Hereditary Trustee. Merely because he is mentioned as hereditary trustee in lease deeds, it cannot be presumed that he has asserted his right in such capacity. 27. In this case the plaintiff has not taken both the pleas. His definite plea is that the suit temple is a private one. O.A.No.4/90 was filed by this plaintiff before the Deputy Commissioner, H.R. & C.E., Mayiladuthurai, under Section 63(a) of the Act for a declaration that the suit institution is not coming under the purview of the Act. In that proceeding he has contended that the suit temple is private temple and he has not pleaded for any relief stating that he is in the capacity of hereditary trustee. 28. In the cross examination of P.W.1, on behalf of the defendants 1 to 3 certain documents were marked which would indicate that various amounts were received by him for the purpose of performing Kumbabhizhegam. P.W.1 admits that Rs.20,000/-was received in his father's lifetime at the time of constructing the temple, from abroad by means of a cheque through Indian Bank on 22.1.1986 and on 8.3.86 a sum of Rs.30,000/- was sent to his name from Bangalore through Canara Bank. It is to be noted that in 1984 Krishnaswamy Naidu died. Hence, if any amount was received in 1986 it could have been for the purpose of performing Kumbabishekam. It is to be noted that in 1984 Krishnaswamy Naidu died. Hence, if any amount was received in 1986 it could have been for the purpose of performing Kumbabishekam. P.W.1 also admits the signatures in Ex.B.3 which is Money Order Counterfoil dated 23.7.1988, which is for Rs.250/-. P.W.1 admits that Ex.B.4 dated 30.12.1978 was written by his father in which he has stated that he received Rs.1001/-for the purpose of construction of incomplete Ellaiamman temple. Ex.B.7 is receipt given by Krishnaswamy for donation of Rs.700/-. 29. Ex.B.8 series are two receipts each for Rs.25/-in which it is stated that Krishnaswamy is Hereditary Trustee. Ex.B.9 is a letter allegedly sent by father of plaintiff in which it is stated that the amount sent by the addressee was credited into the bank account. By means of Ex.B.10 he has sent temple Prasadam to his relative. Ex.B.11 is also a letter dated 9.3.1983 wherein he has stated that the deposit of Rs.9600/- is in bank which was meant for Construction work. Ex.B.13 is dated 5.1.1989 sent by plaintiff acknowledging receipt of demand draft for Rs.2000/-. Ex.B.14 is another letter sent by dated 15.6.1984 addressed to one Narayanan acknowledging receipt of Rs.15,000/- for Kumbabhizhegam expenses. On 1.7.1987 the plaintiff has sent a letter to one Kuppusamy Naidu in Ex.B.15 stating that the said Kuppusamy Naidu might arrange to construct Theerthamandapam. Ex.B.16 is yet another letter dated 27.11.1985 sent by the plaintiff which is produced by D.W.1 without postal cover. Ex.B.17 is the letter addressed to the plaintiff by one B.L.M.Krishna. This could not be relied upon for the reason that the author of the letter was not examined and the same was not sent to the plaintiff. 30. Though Ex.B.18 receipt is produced saying that Ex.B.17 was sent by Registered post, unless the sender B.L.N.Krishna is examined, no reliance could be placed upon this letter. Ex.B.19 is Carbon copy of letter sent by one Srihari to the plaintiff in which he has stated that he sent Rs.1001/-and demanded receipt. Ex.B.20 is acknowledgment Card signed by the plaintiff. Unless the said Srihari is examined, the document could not be acted upon. Ex.B.21 is xerox copy of letter sent to the plaintiff by one B.S. Saraswathi in which she has required the plaintiff to inform the total donations received from other persons along with the expenditure statement. Ex.B.20 is acknowledgment Card signed by the plaintiff. Unless the said Srihari is examined, the document could not be acted upon. Ex.B.21 is xerox copy of letter sent to the plaintiff by one B.S. Saraswathi in which she has required the plaintiff to inform the total donations received from other persons along with the expenditure statement. This letter bears no date and it is a xerox copy. There is no explanation for non-production of original. It is stated that the postal cover was refused by the plaintiff and the same is Ex.B.22. But in this postal cover, the sender's name is mentioned as B.K.Vijayanath. But in Ex.B.21 letter, the name of the sender is mentioned as B.S. Saraswathi. There is no correlating evidence between Ex.B.21 and Ex.B.22. Ex.B.21 is secondary evidence and under Section 65 of Indian Evidence Act, in the absence of explanation for non-production of primary evidence, it cannot be pressed into service. 31. Ex.B.23 counterfoils (3 in number) are the chalans for issue of draft. But there is no proof that these amounts were encashed by the plaintiff. They are for Rs.152/-, Rs.300/-and Rs.250/- respectively. The above said evidence would go to show that for the occasions of reconstruction and Kumbabishekam monies were obtained from third parties. Significant it is to note that there is no evidence of public contribution to the temple for day to day affairs and poojas. 32. The plaintiff had filed O.A.No.4/90 on the file of the Deputy Commissioner H.R. & C.E. Department, Mayiladuthurai, in which defendants 1 to 3 were impleaded as respondents and they contested the same. After analysing the materials, the learned Deputy Commissioner has allowed the applications. Hence, the defendants preferred appeal before the Commissioner of H.R. & C.E. Department, Chennai, in A.P.No.9/96 and on 11.10.1996, the appeal was allowed holding that the suit temple is a religious institution, as per Section 6(18) and 6(20) of the Act. When the application in O.A.No.4/90 was pending before the Deputy Commissioner, the defendants filed an application in O.A.No.80/89 for a declaration that the temple is denominational in character belonging to the Naidu community people and sought for appointment of a fit person. Both O.A.No.80/1989 and 4/90 were directed to be taken up together and disposed of simultaneously. But the defendants withdrew their application in O.A.No.80/1989. Both O.A.No.80/1989 and 4/90 were directed to be taken up together and disposed of simultaneously. But the defendants withdrew their application in O.A.No.80/1989. D.W.5 has stated in his evidence that the said O.A.was dismissed giving liberty to the defendants to file fresh application. But there is no material to show that such liberty was given. Even though D.W.5 says that on the petition filed by defendants 1 to 3 a fit person was appointed, there is no evidence to establish the same and it is not pleaded in the written statement too. 33. D.W.1 claims that he is the President of the Naidu community people. There is no evidence to show that then and there somebody else was looking after the management of the temple on behalf of the Naidu community people. D.W.1 would say in his cross examination that Exs.B.5 and B.6 would show that there are evidence to show that the Naidu community people were managing the temple. But there is no mention in both the documents that the executant represented Naidu Community people. There is no evidence to show that the properties covered by those documents belonged to the temple. If they belonged to the temple, it would have been shown as such in the records. Dealing with such properties by third persons will not alter the character of the suit temple as a public one. Ex.A.22 document is stated to have come into existence in 1865. It is contended by the plaintiff that Ex.A.22 being very ancient document would prove that the ancestors of plaintiff were in management of the temple. The Court could not place reliance upon this document for the reason that the contents are not readable and there is no evidence with regard to the import of the contents and the truthfulness of the document is also not known. 34. On a careful scrutiny of the circumstances aforestated as projected by parties coupled with the exhibits, the following points are discernible:- 1. For day to day management and poojas, no public contribution poured in. 2. Sporadic instances of receipts of monies are available to show that monies were obtained from third parties for performing Kumbabishekam. 3. No evidence to infer that public can worship as of right in the suit temple. There is no evidence that public are regularly worshipping the deity. 4. 2. Sporadic instances of receipts of monies are available to show that monies were obtained from third parties for performing Kumbabishekam. 3. No evidence to infer that public can worship as of right in the suit temple. There is no evidence that public are regularly worshipping the deity. 4. There is no procession deity and there is no evidence to see that any such deity is taken on procession out of temple during festivals. No evidence to infer that festivals are celebrated periodically. 5. No material to show that daily poojas are performed as per Aahamas. 6. There is no evidence showing that the suit temple has been maintained by public nor Naidu community people. 7. No instance of management of temple by any person on behalf of the Naidu community. 8. Earlier structure of the temple got dilapidated completely and in that place a tiled shed alone was erected and in the said site, father of the plaintiff constructed the existing temple structure right from the foundation. 9. There is no distinct Praharam inside the temple. 10. Material evidence are available revealing that the sites adjacent to the temple were leased out by the father of the plaintiff in the capacity as trustee. 11. Neither plaintiff nor his father did take any initiative before any legal forum to maintain that they are trustees/hereditary trustees for the temple. 12. The presence of Samathi of father of plaintiff by the side of the temple where his his mortal remains were interned. 13. The compound wall around the temple and the residential house of plaintiff is under lock and key with the plaintiff. Without his permission nobody can enter into the compound. 14. The accounts maintained by plaintiff for Kumbabishekam were checked by 3rd defendant, an auditor and others which were found correct. 15. There is no Hundial in the temple. 35. Adverting to the legal position holding the field, the learned counsel for both sides have relied upon various decisions of the Supreme Court and this Court. The learned counsel for the respondent/plaintiff Mr. Srinath Sridevan placed reliance upon a Full Bench decision of the Honourable Supreme Court reported in AIR 1970 SC 2065 = (1969)2 SCC 853 = [1970] 2 SCR 275 [Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas and Ors.]wherein Their Lordships have formulated certain tests to determine the character and nature of the temple. The learned counsel for the respondent/plaintiff Mr. Srinath Sridevan placed reliance upon a Full Bench decision of the Honourable Supreme Court reported in AIR 1970 SC 2065 = (1969)2 SCC 853 = [1970] 2 SCR 275 [Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas and Ors.]wherein Their Lordships have formulated certain tests to determine the character and nature of the temple. They are as follows: “(1) Is the temple built in such imposing manner that it may prima facie appear to be a public temple? (2) Are the members of the public entitled to worship in that temple as of right; (3) Are the temple expenses met from the contributions made by the public? (4) Whether the Sevas and Utsavas conducted in the temple are those usually conducted in public temples? (5) Have the management as well as the devotees been treating that temple as a public temple?” 36. As far as the first test is concerned, there is no evidence nor material to show that the building has been built in such an imposing manner. As regards test No.2, it is learnt that the public as of right are not entitled to worship. With respect to Test No.3, it is shown that the temple expenditure are not met by contributions made by public for day to day poojas and other expenses; no evidence is forthcoming to see that the public are offering contributions. As for test No.4, there is no scintilla of evidence to show that no sevas and utsavas are conducted in the suit temple as conducted in public temples. There is no versions from the mouth of defendants' witnesses nor from the pleadings, that Sevas and Utsavas are conducted in the suit temple periodically. Insofar as test No.5 is concerned, there is no evidence to show that devotees are regularly worshipping the idol in the suit temple and no question of devotees treating the temple as a public temple arises. 37. In view of the above said factors, it is held that the nature and character of suit temple have passed the 5 tests set out by Supreme Court in order to get the status of a private temple. 38. The above said decision has been followed by the Honourable Supreme Court and as well as this Court. 37. In view of the above said factors, it is held that the nature and character of suit temple have passed the 5 tests set out by Supreme Court in order to get the status of a private temple. 38. The above said decision has been followed by the Honourable Supreme Court and as well as this Court. In 2011 (13) SCC 431 [Parasamaya Kolerinatha Madam v. P. Natesa Achari (Dead) Through Lrs and others]the decision in GoswamiShri Mahalaxmi Vahuji's casehas been followed. It is observed therein that it is also well settled that mere installation and consecration of idols in a place will not make it a place of public religious worship. It is also observed therein that the fact that there are some idols installed in a math and members of the public offer worship to such idol will not make it a place of public religious worship, that is, a temple, if the other ingredients of a math exist or if it is established to be a premises belonging to a math and used by the math for its purposes. 39. The above said decision in GoswamiShri Mahalaxmi Vahuji's case has also been referred in (1972) 2 SCC 329 [T.D. Gopalan v. Commissioner of Hindu Religious and Charitable Endowments]. Apart from that, the Supreme Court has also laid down various guidelines to determine the nature and character of temple. The operative portions of judgment are as follows: "15. It is significant that the High Court did not attach sufficient importance to three matters which, in the present case, were of material consequence. The first was that the origin of the Mandapam had been proved to be private. The second was that its management had remained throughout in the members of the Thoguluva family. The third was the absence of any endowed property. There was no Gopuram or Dwajasthamba nor a Nagara bell nor Hundial in the suit temple. The learned District Judge adverted to the evidence on all these and other relevant matters and we concur with him in his conclusions. 16. It is true that the suit temple had some physical characteristics and features which are generally to be found in a public temple. The learned District Judge adverted to the evidence on all these and other relevant matters and we concur with him in his conclusions. 16. It is true that the suit temple had some physical characteristics and features which are generally to be found in a public temple. It was also established that persons who were outsiders in the sense that they did not belong to the Thoguluva family used to come and worship at the temple and made offerings there. There were also some jewels and other articles in the temple. But the determination of the question whether the temple was public or private did not depend on some facts or set of facts alone. The entire evidence, both documentary and oral, had to be considered as a whole keeping in view the principles already noticed by us. We are satisfied that the learned District Judge came to the correct conclusion that the suit temple was private in character." 40. Firstly as found in the above said judgment the Mandapam is known to have been constructed by plaintiff's father and Secondly the management of the temple is found to have been with plaintiff and his forefathers alone. Thirdly, admittedly there is no property endowed to the temple. Moreover, there is no Kopuram or Dwajasthamba nor Hundial, bell etc., are present in the suit temple. 41. In the above said decision, a Division Bench decision of this Court in 1953 (2) MLJ 688 [Madras Hindu Religious Endowments Board v. V.N.D.Ammal] has been referred wherein it is observed as follows: "It is true that the facts that there is an utsava idol and there are processions are generally indicative of the fact that it is a public temple. But then no property has been dedicated for the upkeep of the temple. The worship is maintained and the expenses are met from out of the private funds of the respondent. In the absence of any property being dedicated for the maintenance of worship in the temple, it is difficult to hold that the temple has been dedicated to the public." 42. The Apex Court has confirmed the said findings of this Court. The decision in the above said GoswamiShri Mahalaxmi Vahuji's case has also been followed by the Supreme Court in 2009 (2) L.W. 136 [C.R. Jayaraman & Others v. M.Palaniappan & Others]. The Apex Court has confirmed the said findings of this Court. The decision in the above said GoswamiShri Mahalaxmi Vahuji's case has also been followed by the Supreme Court in 2009 (2) L.W. 136 [C.R. Jayaraman & Others v. M.Palaniappan & Others]. While dealing with the matter, the Apex Court has rendered the following findings. "6. ... ... ... ... The High Court, in its impugned judgment, relied on its decision in Madras Hindu Religious Endowments Board v. V.N. Deivanai Ammal By Power of Attorney Agent TV. Mahalingam Iyer, [1952 (II) M.L.J.686=(1953) 66 L.W.1020] which held that where there was an utsava idol and processions were taken out, it would indicate the fact that the temple was a public temple. This principle was also reiterated in another decision of the Madras High Court in Commr., Hindu Religious & Charitable Endowments v. S. Kalayanasundara Mudaliar, [ 1957 (II) MLJ 463 = (1957) 70 L.W.850] wherein it was also held that the provisions of the settlement deed, taken along with the other features, such as the existence of a dwajasthambam, balipeetam and the utsava vigrahams, the carrying of the deity in procession and accepting deeparathana from the members of the public on that occasion conclusively established that the institution was a place of public religious worship, dedicated to or for the benefit of the Hindu community in the village as a place of religious worship, and that it was a public and not a private temple, and fell within the definition of Section 9(12) of the Madras Act 2 of 1927. We are in respectful agreement with the views expressed by the Madras High Court in the aforesaid two decisions regarding the principles to be applied to come to a finding whether the temple is private or public in nature." 43. When the principles laid down by this Court as approved by the Supreme Court as aforestated, are applied to the facts of the present case, the inescapable conclusion would be that the suit temple is a private one. In AIR 1963 SC 1638 [Tikayat Shri Govindlalji Maharaj etc. vs. State of Rajasthan and Ors.] it is held that the participation of members of the public in the darshan in the temple and in the daily acts of worship or in the celebrations of festive occasions are to be very important factors in determining the character of the temple. In AIR 1963 SC 1638 [Tikayat Shri Govindlalji Maharaj etc. vs. State of Rajasthan and Ors.] it is held that the participation of members of the public in the darshan in the temple and in the daily acts of worship or in the celebrations of festive occasions are to be very important factors in determining the character of the temple. With a risk of repetition it is stated that the members of the public have no participation in the dharshan in the temple and in the daily acts of worship, nor had they participated in any celebrations of festive occasions. There is no evidence to see that the festive occasions are celebrated. 44. It is contended by the learned counsel for the appellants that if the temple is found to be in the poramboke land it would be factor to decide that it is a public temple. In AIR 2001 Supreme Court 3389 [M.S.V.Raja and antoher v. Seeni Thevar and others] Their Lordships have observed in para 11 that it may also be mentioned that the suit temple is built on poramboke, though building of temple on a poramboke land by itself may not be conclusive evidence of it being a public temple in the absence of other evidence as in the present case, who found and established the temple, it may be a circumstance pointing in favour of it being a public temple. 45. As far as in the case on hand is concerned, though the temple is stated to have been situate in Natham, it comes to light that the forefathers had been looking after the temple, particularly speaking, when the father of the plaintiff has concededly established the temple structure afresh, it ought to be observed that it is a private temple as per the above said decision. As provided in the above decision, other evidence are available to ascertain the private nature of the temple. 46. Much was said about the presumption to be drawn as per the Division Bench decision of this Court reported in 1966-I-M.L.J.R. 109 [Sri Chidambareswara Sivagami Ambigai Temple v. The Commissioner of Hindu Religious and Charitable Endowments, Madras], cited by the learned counsel for the appellants, wherein it is observed as follows: "The principles for decision in such cases have been well established by several decisions of this court as well as of the Supreme Court. In the first place, unlike the temples in Malabar and in Kerala, there is a presumption in the case of temples in South India, that they are public, and the onus is on the party, who asserts their private nature, to prove it--VideRamaswami Jadaya Gounder v. Commr. H. R. and C. E., Madras [(1963) 2 M.L.J. 280]. This principle has been laid down many years ago in the Privy Council decision in Mundacheri Koman Nair v. Achuthan Nair, [67 M.L.J. 788 : (1934) L.R.61 I.A.405 : I.L.R.58 Mad.91], and has been followed thereafter in the decisions of this High Court." 47. Contending on the other side of the coin, the learned counsel for the respondent/plaintiff placed much reliance upon a Division Bench decision of this Court in (2003) 1 M.L.J. 414 [The Commissioner, H.R. & C.E. Board, Madras and another v. T.S.Palanichamy and others] wherein the learned Judges have elaborately dealt with the above siad presumption in the light of various judgments of the Supreme Court and the precedents. As per this decision, the question is to be decided on the consideration of the oral and documentary evidence in the case and not on the basis of any nonstatutory presumptions. It is inevitable to extract the relevant portions of the Division Bench decision which are as follows:- 5. Counsel relied on the decision of the Privy Council in the case of MundacheriKoman vs. Achuthan Nair, AIR1934 PC 230 to which the apex Court referred in the case of T.D.Gopalanvs. The Commissioner of Hindu Religious and Charitable Endowments, Madras, AIR1972 SC 1716. The decision in Gopalan's case was rendered by a two Judge Bench. The decision of the Privy Council is referred to in paragraph 10 of that judgment thus: "It seems that the approach of the High Court was also somewhat influenced by the observations of the Judicial Committee of the Privy Council in MundancheriKoman vs. Achuthan Nair,61 Ind. App. 405 = AIR 1 934 PC 230that in the greater part of the Madras Presidency private temples were practically unknown and the presumption was that the temples and their endowments formed public religious trusts. This was, however, not the case in Malabar where largest arwads often established private temples for their own use. ...." 6. App. 405 = AIR 1 934 PC 230that in the greater part of the Madras Presidency private temples were practically unknown and the presumption was that the temples and their endowments formed public religious trusts. This was, however, not the case in Malabar where largest arwads often established private temples for their own use. ...." 6. The case of MundancheriKoman v. Achuthan Nair, 57 M.L.J. 788 : L.R.61 I.A.405 : AIR 1934 PC 230 concerned a temple in a Tarwad in the Malabar area of the then Madras Presidency. It was observed by Sir John Wallis who wrote the opinion for the Council thus, "In the greater part of the Madras Presidency, where private temples are practically unknown, the presumption is that temples and their endowments form public charitable trusts. This was laid down by Seshagiri Ayyar, J., on an elaborate consideration of the whole subject in SubramaniaAyyar v. Lakshmana Goundan A.I.R.1920 Mad 42 which was affirmed by the Board in LakshmanaGoundan v. Subramania Ayyar, AIR 1924 PC 44." 7. The decision in the case ofLakshmanaGoundan vs. Subramania Ayyar, AIR1924 PC 44 does not set out the proposition set out in the judgment in the case of MundacheriKoman vs. Achuthan Nair, AIR1934 PC 230 even though in that appeal (AIR 1924 PC 44) decision rendered in AIR 1920 Madras 42 (Subramani Aiyyar vs. Lakshmana Goundan) was the subject matter of appeal. The Privy Council's opinion in that case was written by Sir John Edge. That appeal was decided on the basis of evidence adduced in the case and not on the basis of any presumption that in the greater part of the Madras Presidency the private temples were unknown; On the other hand what was assessed by the Court was the evidence actually before it without reference to any presumption." "13. Thus, the entire foundation for the assumption made that there is a presumption that all the temples in Madras Presidency are public is founded only on this statement of Seshagiri Aiyar, J. who did not decide the case before him on the basis of any presumption, but who after deciding the case with regard to the evidence placed before him, considered it necessary for him to make certain general observations to the effect that outside public have not established kattalais or built chatrams for private temples in southern India except Malabar. 14. 14. The observations so made are clearly not to the effect that there is a presumption that the temples in the Madras Presidency are public temples. What was actually said was that the learned Judge and also the counsel who appeared in the matter were not aware of cases where public had established kattalais and built chatrams for the accommodation of the travellers in private temples. The observation inMundacheri Koman v. Achuthan Nair, 57 M.L.J. 788 : L.R.61 I.A. 405 : AIR 1934 PC 230 that Seshagiri Aiyar, J. had stated that in the greater part of the Madras Presidency private temples are 'practically unknown', is factually incorrect." "17. A Division Bench of this Court in the case of Sri Chidambareswara Sivagami Ambigai Temple vs. Commissioner of H.R. & C.E., 1966 1 MLJ 109 after noting that the point for determining was whether the temple is a private one observed thus, "The principles for decision in such cases have been well established by several decisions of this Court as well as of the Supreme Court. In the first place, unlike the temples in Malabar and Kerala, there is a presumption in the case of temples in South India that they are public, and the onus is on the party , who asserts their private nature, to prove it - Vide RamaswamiJadaya Goundar v. Commissioner, H.R. And C.E., Madras (1963) 2 MLJ 280. This principle has been laid down many years ago in the Privy Council decision in KomanNair v. Achuthan Nair,67 MLJ 788, and has been followed thereafter in the decisions of this High Court." 20. The presumption on which the State wants to rely is thus a presumption which has been wrongly assumed to exist by the misreading of a judgment delivered way back in the year 1920. On appeal heard by the Privy Council from that judgment the Privy Council did not refer to any presumption and the case was decided on the basis of the evidence adduced in the case. The judgment of Sheshagiri Aiyyar, J., was misread and was stated as the source of authority for a proposition which he had not laid down in AIR 1934 PC. The judgment of Sheshagiri Aiyyar, J., was misread and was stated as the source of authority for a proposition which he had not laid down in AIR 1934 PC. The Privy Council in that case (MundacheriKoman v. Achuthan Nair, 57 M.L.J. 788 : L.R.61 I.A.405 : AIR 1934 PC 230) had no evidence on basis on which to lay down that the Court should presume that the temples in Madras Presidency are public temples." 48. In view of the illuminating judicial pronouncements in the Division Bench decision of this Court in T.S.Palanichamy'scase, it has to be necessarily held that there could be no presumption that the temples in South India are public. I prefer to follow the principles laid down in the Division Bench of this Court inT.S.Palanichamy's case and T.D. Gopalan's case supra, for determining whether the suit temple is a private or public one. 49. Even though it is held that such a presumption can be drawn, it has been treated as rebuttable presumption, since there is a rider in the opinion in the decision in Sri Chidambareswara Sivagami Ambigai Temple case, that the onus is on the party who asserts their private nature to prove it. Even assuming that if such presumption is stated to be existing, the plaintiff has established that the suit temple is a private one by means of which the presumption has been satisfactorily rebutted. 50. The learned counsel for the respondent also garners support from a decisin of this Court in 2001 (2) L.W. 774 [Commissioner , H.R. & C.E. Admn. Dept. v. N.Sundaraswamy Gounder and another] in which it is held thus:- "From a consideration of the evidence and Exhibits referred to above, it is clear that the suit temple is situated within the compound of the 1st respondent's property and that access to the temple is through the same gate through which one enters the residential premises of the 1st respondent. It is also clear that to enter the temple, one has to obtain the permission of the 1st respondent and also obtain the keys from him. Therefore, access is only upon the permission and pleasure of the founder and his family members. The absence of Hundi also shows that no contribution from the public is received at the temple." 51. It is also clear that to enter the temple, one has to obtain the permission of the 1st respondent and also obtain the keys from him. Therefore, access is only upon the permission and pleasure of the founder and his family members. The absence of Hundi also shows that no contribution from the public is received at the temple." 51. Two more decisions of this Court rendered by the leanred single Judges were cited by the learned counsel for the appellant. They are (1) 2008-3-L.W.931 [Sri Varasidhi Vinayagar Sath Sangam v. The Commissioner H.R. & C.E.Department] and (2) 2008-3-L.W.1174 [Om Sakthi Sri Periyapalayathamman Trust rep. By its President S. Siva v. The Commissioner, H.R. & C.E. Department]. In both the cases the principles laid down by the Supreme Court and this Court have been dealt with as discussed by me in this Judgment. 52. An overhaul study of the pleadings, evidence and the exhibits, in the light of the judgments of Supreme Court as well as this Court, paves way for me to form a firm opinion that the suit temple is a private one. There is no ground to hold that it is a public religious institution. The observation and conclusion of the Deputy Commission, H.R. & C.E., Mayavaram in O.A.No.4/90 are approved. I answer the point No.1 in affirmative and 2 and 3 in negative. Point No.4 53. In the written statement filed by defendants 1 to 3, it is pleaded that since it is claimed by the plaintiff that it is the private property of his family, the other heirs including families of his ancestors should have been added as parties. It is to be borne in mind that the right in the temple is not inherited by succession by the heirs of forefathers of plaintiff. It is not the pleading either. The right to the temple is not a property treated to have been inherited by the heirs by generation to generation. It is contended by the plaintiff that it is the private temple being maintained by his forefathers and it is not his pleading that it is private property. Hence, it is observed that all the heirs of lineal descendants need not be impleaded as parties. There is no occasion to find that the suit is bad for non-joinder of "necessary" parties. Hence, the suit is not bad for non-joinder of parties. Hence, it is observed that all the heirs of lineal descendants need not be impleaded as parties. There is no occasion to find that the suit is bad for non-joinder of "necessary" parties. Hence, the suit is not bad for non-joinder of parties. I answer this point in negative. Point No.5 54. A defence has been raised in the written statement of 4th defendant to the effect that the plaintiff should have issued notice to the 4th defendant under Section 80 C.P.C. The object and purpose of Section 80 C.P.C. is to give opportunity to Government and public officers, so that they may consider and decide for themselves whether the claim of the plaintiff should be accepted or rejected, and in case if they accepted, the parties could be prevented from indulging in unnecessary litigation. As far as this case is concerned, by means of filing of O.A.No.4/90 by the plaintiff, the authority concerned was well informed about the intention of the plaintiff. The defendants have taken further appeal before the Commissioner and the department has also been a party to the proceedings and it has got knowledge about the claim of the plaintiff. The suit has been filed under Section 70 of the H.R. & C.E. Act. The purpose of the provision u/s 80 C.P.C. was already served anterior to the filing of the suit. In these circumstances, there is no necessity to issue Notice u/s 80 C.P.C. by the plaintiff. This point is answered in affirmative. Point No.6 55. In the light of the observations obtained on a thorough consideration of the merits of the case, it is held that the suit temple is private temple and the suit institution does not come under the purview of the H.R. & C.E. Act. There is no valid ground to disturb or dislodge the findings and the conclusion of the trial Court and the judgment of the Court below deserves to be confirmed and it is accordingly, confirmed. These appeals are liable to be dismissed. The appellants are not entitled for any relief. This point is answered accordingly. 56. In fine A.S.Nos.1012 of 2003 and 1025 of 2003 are dismissed. No costs.