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2015 DIGILAW 3533 (MAD)

Principal Secretary, HR & CE Department, Chennai-34 v. G. Paramasivam

2015-10-28

G.CHOCKALINGAM, S.MANIKUMAR

body2015
JUDGMENT : G. Chockalingam, J. Though the vacate stay petition in M.P.(MD).No.1 of 2015 in W.A. (MD).No.368 of 2014 is listed for disposal, by consent of the learned counsel appearing for the parties, W.A.(MD).No.368 of 2014 itself is taken up for final disposal, along with W.A.(MD).No.300 of 2014 and S.A.(MD). 189 of 2014. 2. Aggrieved by the learned single Judge's order dated 12.11.2013 passed in W.P.(MD).No.12139 of 2012, the sixth respondent in the said Writ Petition (i.e. G.V. Nagarajan) has filed Writ Appeal in W.A.(MD).No.300 of 2014 and the respondents 1 to 5 in W.P.(MD).No.12139 of 2012 have filed Writ Appeal in W.A.(MD).No.368 of 2014. 3. Second Appeal in S.A.(MD).No.189 of 2014 is filed the writ petitioner in W.P.(MD).No.12139 of 2012, who is the plaintiff in O.S.No.73 of 2009, challenging the judgment and decree, dated 23.09.2013 in A.S.No.12 of 2011, in which, the judgment and decree of the trial Court, dated 31.01.2011 in O.S.No.73 of 2009, were reversed by the lower appellate Court (first appellate Court) in A.S.No.12 of 2011. 4. As the issue involved in both the Writ Appeals and the Second Appeal, is one and the same, they are disposed of by this common judgment. For the purpose of convenience, the private parties are referred to as they are ranked before the trial Court in O.S.No.73 of 2009. 5. The case of the HR & CE Department/appellants in W.A. (MD).No.368 of 2014 is that Arulmighu Aadhi Mariamman Thirukkoil, K.Pudur, Madurai, is a public Temple, situated in the lands in S.Nos. 213/11 and 213/12 (part). Originally, the lands were classified as Government poramboke lands. It is alleged further that the first respondent, namely G.Paramasivam's father constructed the said Temple and the Patta stands in the name of the said Temple. While so, the second respondent, namely G.V. Nagaragan (in W.A.(MD).No.368 of 2014), claiming to be a Trustee, gave a complaint on 15.06.2011 to the H.R. & C.E. Department stating that the Temple yields huge income and that his paternal uncle, namely Mr.G.Paramasivam (who is the first respondent in both the Writ Appeals, i.e. the plaintiff in the suit) is misappropriating the funds, that the family circumstances are not conducive for easy management of the said Temple and that the official appellants-HR & CE Department could be permitted to take over the management of the Temple. As the internal disputes among them created law and order problem, the Revenue Divisional Officer, Madurai, initiated proceedings under Section 107 of the Criminal Procedure Code. 6. In the meanwhile, the first respondent in W.A.(MD).No.368 of 2014 filed a suit in O.S.No.73 of 2009 before the trial Court, as against V. Nagarajan and six others, seeking declaration that he is in possession of the suit property and for permanent injunction, describing the lands in which the said Temple is situated and without making the Hindu Religious and Charitable Endowments Department as a party. The said suit was decreed on 31.01.2011. On First Appeal in A.S.No.12 of 2011, the lower appellate Court, by judgment, dated 23.09.2013 allowed the First Appeal and dismissed the suit as not maintainable, in view of the bar provided under Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Department Act (Tamil Nadu Act 22 of 1959) (hereinafter referred to as 'the H.R. & C.E. Act'), as against which, the plaintiff (Paramasivam) filed Second Appeal before this Court in S.A.(MD).No.189 of 2014, which is being disposed of by this common judgment along with the above two Writ Appeals. 7. In view of the dispute in managing the affairs of the said Arulmighu Aadhi Maariamman Temple, the same was locked by the Police officials on the said complaint by the first defendant-Nagarajan. The third respondent-Commissioner, H.R. & C.E. Department, by proceedings dated 22.05.2012, registered the said Temple as a "public Temple" in the Register for List of temples. By the same proceedings, he directed the fifth respondent-Assistant Commissioner, Hindu Religious and Charitable Endowment Department, Madurai, to initiate appropriate action for appointment of "Fit Person" in accordance with law, apart from issuing other directions thereunder. Thereafter, the Assistant Commissioner, HR & CE, issued show cause notice dated 08.06.2012, to the plaintiff-Paramasivam, first defendant-Nagarajan and other concerned parties, to show cause as to why a "Fit Person" should not be appointed under Section 49(1) of the H.R. & C.E. Act. Subsequently, by proceedings dated 10.07.2012, the Executive Officer of Arulmighu Kaalamega Perumal Temple, Thirumogur, Madurai, was appointed as Thakkar (Fit Person) for the suit-Temple (i.e. Arulmighu Aadhi Maariamman Temple). 8. Thereafter, the appellant-plaintiff (Paramasivam) preferred W.P. (MD).No.11517 of 2012 challenging the above said proceedings, dated 10.07.2012 appointing the Executive Officer of Arulmighu Kaalamega Perumal Temple as Thakkar/Fit Person to the suit-Temple-Arulmighu Aadhi Maariammal Temple. 8. Thereafter, the appellant-plaintiff (Paramasivam) preferred W.P. (MD).No.11517 of 2012 challenging the above said proceedings, dated 10.07.2012 appointing the Executive Officer of Arulmighu Kaalamega Perumal Temple as Thakkar/Fit Person to the suit-Temple-Arulmighu Aadhi Maariammal Temple. This Court, by order dated 05.09.2012, dismissed the above said Writ Petition and it is stated by the learned counsel for the parties that the said order of this Court became final. Subsequently, the said Paramasivam (plaintiff in O.S.No.73 of 2009), also filed W.P.(MD).No. 12139 of 2012, challenging the above said proceedings dated 22.05.2012 issued by the Commissioner of the H.R. & C.E. Department, in and by which, the Temple was registered as a Public Temple in the Register for List of Temples. This Court, by order dated 12.11.2013, allowed W.P(MD).No.12139 of 2012 on the ground that no notice was issued under Section 71 of the H.R. & C.E. Act. Aggrieved by the said order dated 12.11.2013 in W.P(MD).No.12139 of 2012, the official respondents (H.R & C.E Department) preferred Writ Appeal in W.A.(MD).No.368 of 2014 and the sixth respondent-G.V. Nagarajan (in W.P.(MD).No.12139 of 2012) preferred another Writ Appeal in W.A.(MD).No.300 of 2014. 9. Learned Special Government Pleader appearing for the appellants in W.A.(MD).No.368 of 2014 submitted that the learned single Judge ought to have seen that Section 71 of the H.R & C.E. Act is not applicable to the facts of the present case. In this case, no notice is necessary, since this case may not come under the purview of Section 71 of the H.R. & C.E. Act, as the factual matrix of the case is entirely different. Since the writ petitioner-Paramasivam has not challenged the appointment of the Fit Person for the administration/management of the said Temple, the Writ Petition was liable to be dismissed and hence, he prayed for allowing W.A.(MD).No.368 of 2014. 10. The learned counsel for the first respondent/writ petitioner contended that the learned single Judge, after analysing the entire materials available on record, has passed a just and reasoned order, allowing the Writ Petition and prayed for dismissal of both the Writ Appeals. 11. It is seen that apart from filing W.P.(MD).No.12139 of 2012, the plaintiff (writ petitioner), namely G.Paramasivam also filed Second Appeal in S.A.(MD).No.189 of 2014 against the judgment and decree, dated 23.09.2013 in A.S.No.12 of 2011 on the file of the first appellate Court, which reversed the judgment and decree of the trial Court. 12. 11. It is seen that apart from filing W.P.(MD).No.12139 of 2012, the plaintiff (writ petitioner), namely G.Paramasivam also filed Second Appeal in S.A.(MD).No.189 of 2014 against the judgment and decree, dated 23.09.2013 in A.S.No.12 of 2011 on the file of the first appellate Court, which reversed the judgment and decree of the trial Court. 12. Learned counsel appearing for the appellant-plaintiff submitted that he is not pressing the Second Appeal as against the respondents 4 to 7 in the Second Appeal, and he has also made an endorsement to that effect on the Memorandum of Grounds of Second Appeal. 13. Earlier, the writ petitioner (G. Paramasivam) filed suit in O.S.No. 73 of 2009 praying: (i) to declare that he (plaintiff) is entitled to be in possession and enjoyment of the suit property and (ii) for permanent injunction restraining the defendants from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property. 14. The appellant/plaintiff submitted that he is in possession and enjoyment of the suit property for more than three decades. The vacant site of the suit property was originally a Government poramboke land, in which, the plaintiff constructed the suit Temple, namely "Arulmighu Aadhi Mariamman Thirukkovil" and he had consecrated several idols of God therein and had been performing the Poojas. It is his further case that he has been looking after all the affairs of the said Temple (which is a small Temple). In the year 1972, the then District Collector, Madurai assigned the vacant site of the suit property in the name of the Temple. The plaintiff alleges that the suit-Temple is an absolute private-Temple and no body has any right, title or interest over the same, much less the H.R. & C.E. Department. Thus, according to the plaintiff, he got possessory title than any body. The plaintiff constructed five shops out of his own funds in the suit property and the same are being let out to several tenants and the income accrued on those shops, is being spent for the Poojas and maintenance of the Temple. It is his further case that the property tax, etc., is being paid in the name of the plaintiff and he obtained Electricity Service Connections for the said Temple and those five shops. It is his further case that the property tax, etc., is being paid in the name of the plaintiff and he obtained Electricity Service Connections for the said Temple and those five shops. Thus, the plaintiff alleges that he is in possession and enjoyment of the entire suit property without any interference whatsoever for the past 39 years. The defendants, who are the plaintiff's brother's sons, have no right, title or interest over the suit property. Under the pretext of the joint family property, the defendants are trying to interfere with the plaintiff's peaceful possession and enjoyment of the suit property, as they have no legal right for the same to claim so. On 27.01.2009, the fourth defendant, along with the other defendants, tried to close the gate of Temple and locked the gate of the suit property. Immediately, the plaintiff complained to the jurisdictional Police and as it was a civil dispute between the parties, the Police advised both parties to approach the Civil Court. Hence, the plaintiff has filed the above suit seeking for the relief of declaration and permanent injunction. 15. The learned counsel for the defendants submitted that the defendants 1 to 3, who are the plaintiff's brother's son, have been administering the suit-Temple. The Survey Records in respect of the suit property, stand in the name of D.1 to D.3's father, namely Velusamy Servai and the suit-Temple was actually built by the father of the defendants 1 to 3. The averment of the plaintiff that the suit Temple is a private Temple, is denied by the defendants and even assuming that the suit Temple is a private Temple, the plaintiff ought to have got a declaration under Section 63(b) of the H.R. & C.E. Act. It is the further case of the defendants that as alleged by the plaintiff, the plaintiff has not constructed any shops in the suit property. The Temple has actually been founded and established by the father of the defendants and their family members. Thus, the suit is liable to be dismissed as it is not maintainable. 16. Before the trial Court, on the side of the plaintiff, P.W.1-plaintiff was examined and P.W.2 Veerarajan (Sub-Registrar of Madurai North Taluk Office) were examined and Exs.P-1 to P-18 were marked. 17. On the side of the defendants, first defendant-D.W.1 and D.W. 2-Chandran were examined and Exs.D-1 to D-20 were marked. 16. Before the trial Court, on the side of the plaintiff, P.W.1-plaintiff was examined and P.W.2 Veerarajan (Sub-Registrar of Madurai North Taluk Office) were examined and Exs.P-1 to P-18 were marked. 17. On the side of the defendants, first defendant-D.W.1 and D.W. 2-Chandran were examined and Exs.D-1 to D-20 were marked. The true copy of the Town Survey Register was marked as Court document in Ex.C-1. 18. After framing necessary issues and analyzing the oral and documentary evidence, the trial Court decreed the suit in favour of the plaintiff, against which, the defendants 1 to 3 preferred First Appeal before the lower appellate Court, which allowed the First Appeal and dismissed the suit, giving liberty to the plaintiff to approach the concerned authority of the H.R. & C.E. Department, against which, the plaintiff preferred the above Second Appeal. 19. At the time of admission of the Second Appeal on 19.03.2014, the following substantial questions of law were framed by this Court: "(i) Whether the lower appellate Court is right in invoking the provisions of Section 108 of the H.R. & C.E. Act, in excluding the jurisdiction of the civil Court in proceedings inter-se between parties not involving the H.R. & C.E. Department? (ii) Whether the lower appellate Court is right in understanding that the true possession should be protected only in the presence of true owner and the person in settled possession, has no right of protection? and (iii) Whether the lower appellate Court is right in holding that the "lis" is not falling within the purview of civil Courts' jurisdiction and that the scope and ambit of Section 9 of the Code of Civil Procedure creates express bar?" 20. After hearing the arguments of both sides, this Court hereby frames additional question of law in the Second Appeal, namely, "Whether the suit itself is maintainable?" 21. Learned counsel for the appellant/plaintiff contended that the dispute is between the plaintiff and the defendants 1 to 3 regarding the possession and enjoyment of the suit property and the H.R & C.E Department has come into picture only after filing of the suit, and the H.R. & C.E Department was not impleaded as a party to the suit. The matter in dispute is no way connected with the H.R. & C.E authorities/H.R. & C.E Act. The matter in dispute is no way connected with the H.R. & C.E authorities/H.R. & C.E Act. The suit was only filed for declaration of title to the suit-Temple and its properties and the preservation of possession against third parties, being the substantial issue, the lower appellate Court wrongly invoked the provisions of the H.R. & C.E Act. It is his further contention that the lower appellate Court misunderstood the scope and ambit of the provisions of Section 108 of the H.R. & C.E Act, which imposes "express bar" for the civil Courts to entertain suits relating to the administration of a religious institution, and the said "express bar" cannot be construed as conferring unfettered jurisdiction on the Civil Courts to entertain the suits pertaining to the provisions of the H.R. & C.E. Act. 22. Learned counsel for the appellant/plaintiff vehemently contended that the plaintiff is in possession and enjoyment of the suit-Temple, and to prove the same, the plaintiff marked various documents as exhibits, which includes the property tax receipts, electricity consumption charges and the like. The first appellate Court ought to have come to the conclusion that the appellant-plaintiff is in possession and the defendants have no right, title or interest in the suit property. He further submitted that suit-Temple is situated in S.Nos.213/11, 213/12 (part) and patta stands in the name of the Trustees of the suit-Temple and that public contributions and donations are being made/received for the conduct of the festivals, Thiruppani, etc., relating to the said Temple. The trial Court, after analyzing the entire materials available on record, while holding that the suit is maintainable, decreed the suit, which may not be interfered with by this Court. Hence, the learned counsel for the appellant/plaintiff prayed for setting aside the judgment and decree of the lower appellate Court and to restore that of the trial Court, by allowing this Second Appeal. 23. Learned counsel for the defendants submitted that the suit itself is not maintainable, as the plaintiff has to approach the H.R. & C.E. authorities for appropriate relief. 24. Heard the learned counsel for the parties and perused the materials available on record. 25. The plaintiff filed O.S.No.73 of 2009 praying inter-alia for declaration that he is entitled to be in possession and enjoyment of the suit property. 24. Heard the learned counsel for the parties and perused the materials available on record. 25. The plaintiff filed O.S.No.73 of 2009 praying inter-alia for declaration that he is entitled to be in possession and enjoyment of the suit property. But, the plaintiff has not stated as to under what capacity he is seeking for the above prayer of declaration. In the plaint, the plaintiff claims that he is in enjoyment of the suit-Temple for more than three decades and the vacant site of the suit property (Temple) was originally a Government poramboke land, in which the plaintiff constructed the said Temple and he had consecrated several idols of God and performing poojas and also maintaining the Temple as a Trustee, but the plaintiff has not proved as to how and under what capacity he is a Trustee or even the ownership. The relief of declaration sought for by the plaintiff in the plaint, is without seeking the declaration of his ownership or Trustee in respect of the suit Temple and hence, it is to be held that the declaratory relief of the plaintiff is not sustainable in law. But, the defendants in their written statement, while denying the allegations in the plaint, claim that the survey records in respect of the suit-Temple stand in the name of D.1 to D.3's father, i.e. Velsamy Servai and the Temple had been actually built by the father of D.1 to D.3. The defendants 1 to 3 (D.1 to D.3) further state that the Temple is not a private Temple of the plaintiff. That being so, the plaintiff ought to have got a declaration from the Joint Commissioner or the Deputy Commissioner of the H.R.& C.E. Department by invoking the provisions of Section 63(b) of the H.R. & C.E. Act, relating to the dispute with regard to the suit-Temple. Even though such Temple was not constructed by the plaintiff, and when the allegation of the plaintiff is that he has constructed the Temple, then he should have sought for a declaration in the plaint prayer to declare that the Temple belongs to him, he being the owner or Trustee. Hence, the learned counsel for the defendants submitted that the suit without such a declaratory relief, is not maintainable. 26. Hence, the learned counsel for the defendants submitted that the suit without such a declaratory relief, is not maintainable. 26. At this juncture, it is worthwhile to quote Section 6(20) of the H.R. & C.E. Act, as follows: "Section 6: Definitions :- In this Act, unless the context otherwise requires, - (20) "temple" 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;" 27. In this case, it is not in dispute that the land in which the suit-Temple is situated, is a poramboke land belonging to Government. The plaintiff produced Ex.A-4 (original of the tenancy agreement of the shop relating to the suit property), in which it is stated as follows: "xxx" 28. In Ex.A-5 (Acknowledgement letter for having given salary to Archakas), it is stated that, "xxx" Ex.A-9 is the permission receipt original copy issued by the Assistant Commissioner of Police, Tallakulam (L & O) Range, Madurai City, relating to the mike set preparation for the suit-Temple festival and Ex.A-10 series are the receipts issued to the plaintiff by the Sculptors showing the expenses (labour etc) spent for the formation of Idols of Gods of the suit-Temple. 29. It is admitted by both parties that the suit-Temple is situated on the "poramboke" land, which is evident and proved by Ex.A-13 (certified copy of the Town Survey Register). Ex.A-15 series are the tax receipts in respect of the suit Temple and Ex.A-14 is the original demand notice issued by the Corporation of Madurai to the suit-Temple, also shows that the suit-Temple is situated on the "poramboke" land. But the plaintiff has not proved his case by producing the electricity payment receipts, etc., in respect of the suit-Temple. Ex.A-16 is the receipt issued by the Prohit (Pandit) for the Consecration of the suit Temple on 11.05.2008. But, no acceptable document has been produced on the side of the plaintiff or even corroborated by any oral evidence of the witness, to show that the land in question is owned by the plaintiff and the plaintiff is the owner of the Temple. But, no acceptable document has been produced on the side of the plaintiff or even corroborated by any oral evidence of the witness, to show that the land in question is owned by the plaintiff and the plaintiff is the owner of the Temple. Ex.A-4 (original of the tenancy agreement of the shop relating to the suit property) clearly shows that the suit Temple and the building therein, superstructure, etc., belong to Arulmighu Adi Maariammal Temple and the plaintiff entered into the tenancy agreement as detailed in Ex.A-4 and thus, it shows that the land in question belongs to the suit Temple. Hence, the argument of the learned counsel for the plaintiff that the plaintiff alone constructed the building/superstructure, etc., for the Temple and he is a Trustee/Administrator, etc., is not acceptable, as the same is not proved either by oral evidence or documentary evidence. 30. Moreover, the defendants produced Exs.B-1 and B-2 are the letters addressed by the Public to the Madurai District Collector praying for notifying the Temple land as belonging to Public. The relevant portion of Exs.B-1 and B-2 proves the same, as extracted hereunder: Ex.B-1: Ex.B-1: xxxx 31. Thus, on a conjoint reading of Exs.B-1 and B-2, it is crystal clear that the entire people of the area/Village in question are worshiping in the Temple which it is alleged by the defendant being belonged to the public at large. 32. Furthermore, on the side of the defendant, Ex.B-4 (notice issued by the District Land Survey Inspector) is in the name of "Mariamman Temple In-charge (xxx) Ganapathy Servai son Velsamy". Thus, it is clear that the said Velsamy is also one of the Trustees/in-charge of the Temple and the people at large are also worshiping in the Temple and it is clear that the public gave petitions/letters in Exs.B-1 and B-2 to the District Collector concerned for notifying the suit-Temple as a public place of worship. Further, the said Velsamy collected donations from public, in proof of which, Ex.B-5 is produced by the defendant. Moreover, the defendants have also proved their case by producing Exs.B-6 to 16 series, which are the photographs of the suit-Temple, from which, it is clear that apart from the plaintiff and the defendants, the public at large have also been worshiping in the suit-Temple. Moreover, the defendants have also proved their case by producing Exs.B-6 to 16 series, which are the photographs of the suit-Temple, from which, it is clear that apart from the plaintiff and the defendants, the public at large have also been worshiping in the suit-Temple. To cap it all, the defendants have also produced Ex.B-19 (invitation of the suit-Temple for Consecration (Kumbhabhishekam), which shows that appropriate Committee had been constituted for the purpose of the Consecration of the Temple. Neither the name of the plaintiff nor the name of the said Velsamy is printed on the said Ex.B-19 invitation, thereby, they have thus been not indicated as Trustees. Hence, the entire public of the area/Village formed appropriate Temple Committee for conducting necessary festivals sought to be performed. Further, Ex.B-20 and Ex.X-21, which are the Land Survey Register (true copies) stand in the name of the suit-Temple and not the plaintiff or Velsamy. In view of all the above discussed exhibits/documents produced on the side of the defendants, it is clear and proved by the defendants that the public at large are worshiping in the suit-Temple by forming necessary Committees and the Public at large have also performed the Consecration for the suit-Temple. The above said Velsamy also collected donations from the public for performing the Consecration of the suit-Temple, coupled with the fact that as stated above, the public at large petitioned the District Collector for worshiping the suit-Temple as a public Temple. 33. Though the plaintiff claims that the suit-Temple is a 'private Temple' and he is a Trustee who constructed the building, but, the plaintiff did not pray for declaration in the suit to declare that the suit-Temple is a private Temple wholly owned and solely managed by himself, but prayed for a declaration in the suit, only to the effect that he is entitled to be in possession and enjoyment of the suit-Temple. The plaintiff did not even seek for the said declaration before the authority concerned of the H.R. & C.E. in respect of the suit-Temple so as to notify the same as a private Temple. 34. The plaintiff did not even seek for the said declaration before the authority concerned of the H.R. & C.E. in respect of the suit-Temple so as to notify the same as a private Temple. 34. In this regard, it is worthwhile to notice Section 6(20) of the H.R. & C.E. Act, which contemplates the meaning of a Temple to be 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. Unless the competent authority of the H.R. & C.E. Department declares a Temple to be a private Temple, all the Temples are deemed to be 'public Temples'. In this case, the plaintiff has not sought for declaration before the H.R. & C.E. authorities to declare the suit-Temple as a private Temple. 35. Further, the suit Temple had been constructed in a Government poramboke land, and the suit-Temple is being worshiped by the public at large. On the one hand, the plaintiff claims that he is a Trustee/Administrator/in-charge, etc., but on the other hand, the above said Velsamy/children of the said Velsamy, i.e. the defendants 1 to 3, also claims that they are the Trustees of the suit-Temple. It is to be noted that if there is dispute between the Trustees with regard to the management of the Temple, then the matter has to be decided only by the competent authority under Section 63 of the H.R. & C.E. Act. In the case on hand, no such proceedings under Section 63 had been initiated by the plaintiff before the competent authority so as to come to a conclusion and declare that the plaintiff alone is the hereditary Trustee eligible to manage the affairs of the suit-Temple. 36. Further, under Section 108 of the H.R. & C.E. Act, expressly bars Civil Court from entertaining any suit relating to the administration of a religious institution (i.e. Temple), thus the Legislature made it clear that only the H.R. & C.E. Department is vested with the powers to have control over the public Temple or even determining the issues with regard to the nature of the Temple, be it a public or a private Temple, more so, with regard to administration or the management of any religious institution (Temple). Hence, it is inferred that no suit shall be instituted in a Civil Court for determining the management of a Trustee of the Temple or even in any affairs relating to the Temple, or with regard to the dispute relating to the ownership of the Temple. 37. In the case on hand, the said Velsamy (Son of Ganapathy Servai) claims that he is a Trustee and the land revenue receipts/Revenue records are in the name of the said Velsamy, who collected donation from the public at large and this factum is proved from the documents available on record by the defendants, though the fact remains that the plaintiff claims to be a hereditary Trustee under the guise of he having constructed the suit-Temple. The dispute has to be decided only as per the provisions prescribed under Sections 63 and 108 of the H.R. & C.E. Act. Hence, it has to be held that the suit is not at all maintainable. 38. Moreover, during the pendency of the suit, it is admitted by both parties that "Fit Person" (Thakkar/Executive Officer) of Arulmighu Kalamega Perumal Temple, Thirumogur, Madurai, had been appointed to manage the affairs and administer the suit-Temple, i.e. Arulmighu Aadhi Mariamman Temple and it is not disputed that the Fit Person of the said Perumal Temple had taken over the possession and management of the Mariamman Temple (suit-Temple). 39. It is not explained by the plaintiff in conspicuous terms as to under what capacity he seeks for the relief in the suit to declare that he is entitled to be in possession and enjoyment of the suit property. Whether the plaintiff is the owner/Trustee, etc., in respect of the suit-Temple, had not been proved by him by oral and documentary evidence, coupled with the fact that apart from the plaintiff, the said Velsamy (son of Ganapathy Servai) also claims to be the owner/Trustee of the suit-Temple on the ground that donations have been obtained from public and he had administering the affairs of the suit-Temple. The public at large claims that the suit-Temple is a public Temple and they are worshiping time immemorial. The public at large claims that the suit-Temple is a public Temple and they are worshiping time immemorial. In these circumstances, if at all the plaintiff has any right to claim the administration or management of the suit-Temple, the same can be done only by approaching the competent authority under the H.R. & C.E. Act for appropriate relief relating to the suit-Temple and under Section 108 of the H.R. & C.E. Act, the Civil Court is expressly barred from entertaining the suit. Hence, the plaintiff is not entitled to the reliefs sought for in the suit. 40. In view of the foregoing discussion, the substantial questions of law, including the additional question of law, framed in this Second Appeal, are answered against the appellant/plaintiff and in favour of the respondents/defendants. 41. Coming to the issue involved in the Writ Appeals, the learned single Judge, by the impugned order dated 12.11.2013 in W.P. (MD) No. 12139 of 2012, held that no notice under Section 71 of the H.R. & C.E. Act was issued. 42. In this context, it is seen that Section 71 of the H.R. & C.E. Act deals with the issuance of notice on the Trustee and all other persons having interest in the religious institution, to show cause as to why such religious institution should not be notified under the H.R. & C.E. Act. 43. We have already held above that the suit filed by the writ petitioner/plaintiff, which was decreed by the trial Court, but dismissed by the lower appellate Court, is not maintainable, in view of the provisions of Sections 108 and 63 of the H.R. & C.E. Act. In this case, the suit-Temple is situated in Government poramboke land, and the Revenue Records marked as exhibits before the trial Court proves the same and that the shops are also under the control of the suit-Temple and these facts are admitted by both parties, more so, when the public at large are worshiping in the suit-Temple, as they have petitioned to the District Collector concerned for notifying it to be a public Temple, which is evident from Exs.B-1 and B-2, as discussed supra. The plaintiff did not take any steps by approaching the appropriate authority under the H. R. & C.E. Act for declaration of the suit-Temple as a private Temple on the lone and sole ground that the Temple belongs to him as he was allegedly instrumental in constructing the suit-Temple. 44. It is pertinent to note that subsequent to the filing of the suit in O.S.No.73 of 2009 before the trial Court, he has filed a Writ Petition before this Court in W.P.No.10890 of 2012 seeking for issuance of a Writ of Certiorarified Mandamus to quash the order dated 24.07.2012 issued by the Executive Officer of Arulmighu Kaalamega Perumal Temple, Thirumogur, Madurai (who is the Thakkar/Fit Person of the suit-Temple-Arulmighu Aadhi Maariamman Temple) and direct the Assistant Commissioner of the H.R. & C.E. (fourth respondent in W.A.(MD).No.368 of 2014) to issue the plaintiff a copy of the order in Se.Mu.Na.Ka.No. 2154/2011/A2, dated 10.07.2012. The said order dated 24.07.2012, passed by the Executive Officer of Arulmighu Kaalamega Perumal Temple, deals with the visit of the Executive Officer to the suit-Temple for taking the possession of the affairs of the suit-Temple. The order dated 10.07.2012 passed by the Assistant Commissioner of the H.R. & C.E. speaks about the appointment of the Executive Officer of Arulmighu Kaalamega Perumal Temple as Thakkar/Fit Person to the suit-Temple. This Court, by order dated 03.08.2012, disposed of W.P.(MD).No.10890 of 2012, directing the Assistant Commissioner to furnish a copy of the said order dated 10.07.2012 within two weeks from the date of receipt of a copy of the order in the said W.P.(MD).No.10890 of 2012. In obedience to the said order dated 03.08.2012 passed by this Court, the order dated 10.07.2012 was communicated to the plaintiff/writ petitioner. 45. Thereafter, the plaintiff (writ petitioner) filed W.P.(MD).No.11517 of 2012 before this Court seeking for issuance of a Writ of Certiorarai to quash the order of the Assistant Commissioner, H.R. & C.E. Madurai, dated 10.07.2012. In obedience to the said order dated 03.08.2012 passed by this Court, the order dated 10.07.2012 was communicated to the plaintiff/writ petitioner. 45. Thereafter, the plaintiff (writ petitioner) filed W.P.(MD).No.11517 of 2012 before this Court seeking for issuance of a Writ of Certiorarai to quash the order of the Assistant Commissioner, H.R. & C.E. Madurai, dated 10.07.2012. This Court, by order dated 05.09.2012, held that in view of the fact that the Temple (Arulmighu Aadhi Mariamman Temple) had been included in the list published under Section 46 of the H.R. & C.E. Act and there being dispute between the writ petitioner-plaintiff and the first defendant-Nagarajan (in O.S.No.73 of 2009) before Civil Court and also the fact that there has been 'Hundials' in the suit-Temple and the public are allowed to worship in the Temple, there is no illegality in the appointment of the Fit Person. This Court, after holding so, gave liberty to the writ petitioner-plaintiff that it is open for him to challenge the appointment of the Fit Person before appropriate forum, i.e. by way of Revision under the H.R. & C.E. Act. This order of this Court, dated 05.09.2012 in W.P.(MD).No.11517 of 2012 had become final, as the same has not been taken on appeal as stated by the learned counsel for the parties. This leads to the conclusion that the appointment of the Fit Person to the suit-Temple has become final. 46. Learned counsel for the plaintiff contended that as per Section 71 of the H.R. & C.E. Act, no notice had been issued to the plaintiff and hence, the impugned order, dated 12.11.2013 passed by the learned single Judge in W.P.(MD).No.12139 of 2012, may be confirmed. 46. Learned counsel for the plaintiff contended that as per Section 71 of the H.R. & C.E. Act, no notice had been issued to the plaintiff and hence, the impugned order, dated 12.11.2013 passed by the learned single Judge in W.P.(MD).No.12139 of 2012, may be confirmed. Section 71 of the H.R. & C.E. Act deals with the issuance of notice to show cause as to why an institution should not be notified, and as per Section 71(1), notwithstanding that a religious institution is governed by a Scheme settled or deemed to have been settled under the H.R. & C.E. Act, where the Commissioner has reason to believe that such institution is being mismanaged and is satisfied that in the interest of its administration, it is necessary to take proceedings under that Chapter, the Commissioner, may, by notice published in the prescribed manner, call upon the Trustee and all other persons having interest to show cause as to why such institution should not be notified to be subject to the provisions of that Chapter and Section 71(2) prescribes time limit and Section 71(3) deals with filing of objection by the Trustee or any person having interest on the institution and Section 71(4) deals with the time limit for filing such objection before the Commissioner. 47. In the case on hand, it is admitted that the suit-Temple is not a "Scheme Temple" as stated in Section 71(1) of the H.R. & C.E. Act. The plaintiff has not taken earnest efforts to declare the suit Temple as a private Temple. Ultimately, the suit-Temple had been listed under Section 46 of the H.R.& C.E. Act, having not been objected to by the plaintiff. The plaintiff has not taken earnest efforts to declare the suit Temple as a private Temple. Ultimately, the suit-Temple had been listed under Section 46 of the H.R.& C.E. Act, having not been objected to by the plaintiff. Further, in respect of the appointment of the Fit Person, due notice had been given to the plaintiff and only after issuance of such notice, the Fit Person took over the management of the suit-Temple and the appointment of the Fit Person having been challenged before this Court in W.P.(MD).No.11517 of 2012, this Court, by order dated 05.09.2012, dismissed the same, resulting in the fact that the appointment of the Fit Person has become final and conclusive, as the said order dated 05.09.2012 has not been taken on appeal as admitted by the learned counsel for the parties, though liberty was given by this Court to challenge the appointment of the Fit Person before appropriate forum, which not has been availed of by the plaintiff or any aggrieved party to the present judicial proceedings. Therefore, the argument of the learned counsel for the plaintiff that since notice under Section 71 of the H.R. & C.E. Act has not been allegedly issued to the plaintiff, the order dated 22.05.2012 passed by the Commissioner of the H.R. & C.E. Act, Madurai (second respondent in W.P.(MD).No.12139 of 2012) notifying the suit-Temple, has to be held to be illegal, cannot be countenanced, for the reason that the appointment of the Fit Person has become final and that the Civil Court is barred from entertaining a suit under Section 108 of the H.R. & C.E. Act and that no action had been initiated by the plaintiff as enunciated under the provisions of the H.R. & C.E. Act. 48. Thus, we hold that no such notice under Section 71 of the H.R. & C.E. Act is in fact necessary in the case on hand, taking into consideration the facts and circumstances of the case. Therefore, the observation of the learned single Judge while allowing W.P.(MD).No.12139 of 2012, in the impugned order dated 12.11.2013, that, notice under Section 71 of the H.R. & C.E. Act is necessary, has to be set aside. Therefore, the observation of the learned single Judge while allowing W.P.(MD).No.12139 of 2012, in the impugned order dated 12.11.2013, that, notice under Section 71 of the H.R. & C.E. Act is necessary, has to be set aside. Since the H.R. & C.E. authorities had duly followed the procedures prescribed under the provisions of the H.R.& C.E. Act and the petitioner (plaintiff) having failed to take recourse under the provisions of the H.R. & C.E. Act, the impugned order dated 12.11.2013 passed by the learned single Judge in W.P.(MD).No.12139 of 2012 is liable to be set aside. 49. Moreover, the Writ Petition in W.P.(MD).No.12139 of 2012 praying for issuance of a Writ of Certioraraified Mandamus to quash the proceedings dated 22.05.2012 of the Commissioner of H.R. & C.E. Department, Madurai and forbear the respondents in that Writ Petition (i.e. H.R.& C.E. authorities and the first defendant in O.S.No.73 of 2009) from interfering with the rights of the writ petitioner (plaintiff) in managing and administering the suit-Temple, had to be dismissed on the ground that the plaintiff was aware of the letter dated 15.06.2011 addressed by the first defendant-G.V. Nagarajan, in the capacity as a Trustee of the suit Temple, to the H.R.& C.E. authorities, seeking for handing over the administration of the suit-Temple under his control and appointment of Administrative Officer (i.e. Executive Officer) under Section 45(1) of the H.R. & C.E. Act for the suit-Temple. 50. Learned counsel for the plaintiff relied on a decision of this Court reported in AIR 1940 Madras 246 (Manavikraman v. Madras H.R.E. Board) to contend that where no Scheme has been framed by Civil Court, the procedures contemplated under the H.R. & C.E. Act are not applicable to the case, unless there is gross mis-management by a Trustee and unless the Scheme framed by the Court is given a fair trial. In the case on hand, the suit-Temple does not come under the purview of any Scheme framed under the H.R. & C.E. Act and that there is no allegation of mismanagement, etc., in respect of the suit-Temple, as the issue involved in the case is only with regard to the locus-standi of the plaintiff to seek declaration as sought for by him, when the fact remains that he has not proved as to under what capacity he claims ownership/Trusteeship of the suit-Temple, and hence, the said decision of this Court will not have any application to the facts of the present case. 51. Learned counsel for the plaintiff further relied on the decision of this Court reported in 1980 (1) MLJ 140 (Vallaba Ganesar Devasthanam v. Anandavadivelu), wherein, the earlier decision of this Court reported in AIR 1935 Mad. 964 : 1935 (42) LW 757 (Venkatacharyulu v. Vasireddy Harihara Prasad) was cited, in which, it was held that the bar under Section 73 (of the Madras Hindu Religious Endowments Act - i.e. old H.R. & C.E. Act), is only in respect of suits relating to the administration or management of the Trust, i.e. proceedings against the Trustee and not in respect of the proceedings against the person who is wrongly in possession of the property in which he is interested. In the case on hand, since the plaintiff herein seeks for declaration that he is entitled to be in possession and enjoyment of the suit property (Temple) on the ground that he has constructed the suit-Temple, the said decision has no bearing to the case on hand. 52. Learned counsel for the plaintiff also relied on a decision of a Division Bench of this Court reported in Vol.79 L.W. 672 (Krishnaswami Raju v. Krishna Raja) for the proposition that the Deputy Commissioner can only decide as to the status of the office of the Trusteeship, namely, whether it is hereditary and he is not competent to go into the further question as to which of the competing claimants is a hereditary Trustee or whether both are joint hereditary Trustees and it is a matter not covered by Section 57 of the Madras Hindu Religious and Charitable Endowments Act (old H.R. & C.E. Act) and has to be decided only by a separate suit. Therefore, on the facts and circumstances of the case, this Court held that a suit under Section 57 of the old Act, in respect of such a claim is therefore not maintainable. In the case on hand, this Court already observed that the suit filed by the plaintiff is not maintainable, on the ground that he has not proved his possession and as to under what capacity, he claims to be having the administration of the suit Temple. 53. Learned counsel for the plaintiff further relied on a decision of this Court reported in Vol.80 L.W. 137 (Rangayya Gounder v. Karuppa Naicker), which related to the dispute with regard to the conduct of a Temple festival by the parties therein. Such a dispute is not in the present case and hence, the same is not discussed here. 54. Learned counsel for the plaintiff further relied on a decision of this Court reported in Vol.90 L.W. 615 (Mooka Velar v. Baluchami) to contend that the bar under Section 63 of the Madras Hindu Religious and Charitable Endowments Act (Old Act) operates against a suit for establishing a hereditary right and not against a suit for enforcing it. In the case on hand, the plaintiff filed the suit for declaration that he is entitled to be in possession and enjoyment of the suit property and also for permanent injunction restraining the defendants from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property. The plaintiff in the case on hand has not sought for enforcement of any statutory right, much less the hereditary Trustee. Hence, the said decision has no application to the facts of the case on hand. 55. Learned counsel for the plaintiff further relied on a decision of a Division Bench of this Court reported in Vol.81 L.W. 342 (Tirumalaisami Naicker v. Villagers of Kadambur, Athur Taluk), wherein it was observed that exclusion of the jurisdiction of a Civil Court in a case where a person asserts a right and seeks remedy, cannot be readily inferred and exclusion of the suit in question from the cognizance of the Court must be either expressed or clearly and necessarily implied. It was further held therein that Section 93 of the Madras Hindu Religious and Charitable Endowments Act (old Act) imposes certain statutory restrictions in respect of suits mentioned therein - suits relating to administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in the old Act and that Section 93 of the old Act clearly bars only those suits for which provision has been made in the old Act and it does not prohibit the institution of suits under the general law, which do not fall under the scope of any of the Sections of the old Act. It was further held that it cannot mean that suits of the category for instituting which no provision is made in the old Act, are barred. In the case on hand, the plaintiff prays for declaration of his possession and hence, the said decision has no bearing to the case on hand. 56. Learned counsel for the plaintiff also relied on a decision of this Court reported in 1986 (Vol.99) LW 606 : 1986 (1) MLJ 465 : CDJ 1985 MHC 218 (Sri Thulukka Choodamani Mariamman Temple etc. v. Subramania Pandaram) and contended that the Civil Court has jurisdiction to try the suit. In the case on hand, as the plaintiff prayed for declaration of his possession based on his dominant ownership attitude, the Civil Court is barred from entertaining the suit, more particularly, when Section 108 of the H.R. & C.E. Act bars entertaining of suits in respect of administration or management of religious institutions, etc., as the plaintiff could have taken recourse to Section 63 of the H.R. & C.E. Act and got the dispute settled with regard to the ownership of the suit Temple, be it a public or private Temple. 57. Learned counsel for the plaintiff also relied on a decision of this Court reported in 2001 (3) MLJ 73 (Sayarakshai Kattalai and Arthajama Kattalai attached to Arulmighu Kayaroganaswamy and Neelayadakshi Amman Thirukoil, Nagapattinam v. Radhakrishnan), wherein it was held that notwithstanding Section 108 of the H.R. & C.E. Act, where the dispute relates to a Temple is only between two private parties and the Endowments Department is not directly concerned, yet, the Civil Court has jurisdiction to try the suit. In that decision, it is further held that if in a suit any matter in respect to which a provision is made under the H.R. & C.E. Act has to be incidentally decided, the jurisdiction of Civil Court is not excluded and if a question in respect of which the bar is conferred on the Deputy Commissioner to decide under Section 63 of the H.R. & C.E. Act, arise, incidentally, for consideration in a suit, jurisdiction of the Civil Court will not be excluded. In the case on hand, the plaintiff should have exhausted his statutory remedy by approaching the authority concerned under Section 63(a) of the H.R. & C.E. Act, by circumventing the said authority and directly approached the Civil Court. However, even before the Civil Court, the plaintiff did not seek the appropriate relief of declaration of his ownership or otherwise with regard to the management of the suit 35 Temple and has simply sought for declaration that he is entitled to be in possession and enjoyment of the suit-Temple, which in our considered view, is not legally sustainable. However, the plaintiff having not availed of the alternative statutory remedy under the H.R. & C.E. Act at the first instance, the suit itself is not maintainable. 58. Learned counsel for the defendants relied on a decision of the Supreme Court reported in 2009 (3) SCC 425 : AIR 2009 SC 1495 (C.R. Jayaraman v. M. Palaniappan), wherein the Supreme Court held that a Temple, be it a private or public, if visited by public at large as of right and the public offerings were accepted by the Priest and the public regarded the Temple with esteem and great veneration and the Temple not having been built on a private land of its founder, is a public Temple. The Supreme Court further observed 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 the case on hand, the suit-Temple is built on a Government poramboke land and the public at large are worshiping in the Temple and hence, it assumes the character of a public Temple, more so, when the public themselves petitioned the District Collector for notifying the suit-Temple as a public Temple. 59. In the case on hand, the suit-Temple is built on a Government poramboke land and the public at large are worshiping in the Temple and hence, it assumes the character of a public Temple, more so, when the public themselves petitioned the District Collector for notifying the suit-Temple as a public Temple. 59. Learned counsel for the defendants also relied on a decision of the Apex Court reported in 2001 (6) SCC 652 : AIR 2001 SC 3389 (M.S.V. Raja v. Seeni Thevar), wherein the Supreme Court held that the Temple built on poramboke land, showing possibility of being a public Temple, assumes the character of a public Temple. In the case on hand, it is crystal clear that the suit-Temple is built by the plaintiff on the Government poramboke land and is being worshiped by the public at large, and hence, it is deemed to be a public Temple. 60. Learned counsel for the defendants further relied on a decision of this Court reported in 2008 (7) MLJ 1059 (Sri Varasidhi Vinayagar Sath Sangam v. Commissioner, H.R. & C.E. Department), wherein this Court held that the initial presumption is that Temples in Tamil Nadu should be treated as Public Temples and if there is clinching material to prove the participation of public and their worship with offerings and "Thattukkanikka" as of right, the Temple in question should be construed as a Public Temple. The same is the case on hand, where the public offer worship in the suit-Temple and the defendants have proved through oral and documentary evidence that the suit-Temple satisfies the character of a public Temple and the offerings are made by the public and the expenses are met by the public contributions, and hence, it has to be held that the suit-Temple is a public Temple. 61. 61. Learned Special Government Pleader appearing for the H.R. & C.E. Department relied on a decision of the Supreme Court reported in 1981 (1) SCC 445 : AIR 1980 SC 2036 : CDJ 1980 SC 305 (T.V.Mahalinga Iyer v. State of Madras and others), in which the Apex Court, while dealing with the meaning of a Temple within the meaning of Section 6(20) of the H.R. & C.E. Act, held that it is undisputed law that so far as Tamil Nadu is concerned, there is an initial presumption that a Temple is a public one, it being up to the party who claims that it is a private Temple, to establish that fact affirmatively and this initial presumption must be rebutted by clinching testimony and the crucial question is as to whether the public worship in the Temple is as of right; ordinarily, there may not be direct evidence regarding the exercise of such right and inference has to be drawn from a wealth of circumstances; the dedications to the public need not be by a deed and may be spelt out of the circumstances present and the right of the public to worship again is a matter of inference. Applying the said ratio of the Apex Court to the case on hand, the suit-Temple invariably gets coloured by the worship of public at large, thereby it has to be held that the suit-Temple is a public Temple. 62. Learned Special Government Pleader also relied on a decision of this Court reported in 1992 (2) MLJ 93 (Lakshmiammal v. Ramalingam Chettiar), wherein this Court held that the presumption is that a Temple is a public one and whoever claims the Temple to be a private one, must have to prove it. In the case on hand, the plaintiff virtually failed to prove that the suit-Temple is a private Temple. 63. On an analysis of the above facts and circumstances and the decisions of Courts cited supra, this Court is of the view that the suit is not maintainable and the declaratory relief of possession and enjoyment of the suit property, as sought for by the plaintiff, is not sustainable, and hence, the suit has to be dismissed. Resultantly, the plaintiff is also not entitled for the relief of permanent injunction. 64. Resultantly, the plaintiff is also not entitled for the relief of permanent injunction. 64. With regard to the impugned order passed by the learned single Judge in W.P.(MD).No.12139 of 2012, dated 12.11.2013, we are of the view that the learned single Judge, on the facts and circumstances of the case, is not right in holding that notice under Section 71 of the H.R. & C.E. Act is necessary. 65. Further, the observation of the learned single Judge that the principles of natural justice had not been followed, is not sustainable, as the H.R.& C.E. authorities had duly followed the procedures prescribed under the H.R. & C.E. Act. 66. For the above reasons, the impugned order dated 12.11.2013 passed by the learned single Judge in W.P.(MD).No.12139 of 2012, is liable to be set aside. Accordingly, the impugned order passed by the learned single Judge is set aside and both the Writ Appeals are allowed. 67. In view of allowing of both the Writ Appeals as above, the Second Appeal in S.A.(MD).No.189 of 2014 filed by the plaintiff, is dismissed, confirming the judgment and decree dated 23.09.2013 made in A.S.No.12 of 2011 on the file of the first appellate Court, thereby, the suit is hereby dismissed. The above dismissal of the Second Appeal is on merits only as against respondents 1 to 3 in the Second Appeal. In view of the endorsement, dated 27.07.2015 made by the learned counsel for the appellant/plaintiff, on the Memorandum of the Grounds of Second Appeal, that he is not seeking the relief as against the respondents 4 to 7 in the Second Appeal, the Second Appeal is dismissed as not pressed as against respondents 4 to 7. The miscellaneous petitions are closed. No costs.