JUDGMENT : This Appeal Suit has been filed by the plaintiffs in O.S. No. 109 of 1988, aggrieved by the dismissal of the said suit by judgment and decree dated 03.09.1993 by the Subordinate Judge, Tenkasi. 2. The plaintiffs in O.S.No.109 of 1988 on the file of the Subordinate Court, Tenkasi, aggrieved by the dismissal of the said suit by Judgment and decree, dated 03.09.1993 have filed this Appeal under section 70(2) of Tamilnadu Hindu Religious and Charitable Endowment Act 1959. Pending the Appeal, the first appellant Gomathinayaka Desikar died and his legal representative Kutrala Sabhapathi had been brought on record by the order of Court dated 18.07.2008 in CMP.No.7109/2002. O.S.No.109 of 1988 had been filed under section 70(2) of Tamilnadu Hindu Religious and Charitable Endowment Act 1959, for declaration that the suit Mutt called Sannadhi Madam at Tenkasi is not a Religious Institution and to set aside the order of the defendant namely the Commissioner, Hindu Religious and Charitable Endowment Department, Chennai, dated 07.04.1988 in C.92/65/87 and for costs. 3. In the schedule to the plaint, item No.1(1) is the property called Sannadhi Madam in Natham S.No.700/8A1A, D.No.39/81 in Tenkasi Town and Municipality in Tenkasi Registration District. The item No.1 (2) of the schedule were the Vigragams in the said Mutt namely (1) Pillaiyar 4, (2) Murugan, (3) Sattanathar, (4) Rajarajeswari, (5) Natarajar, (6) Deshinamoorthy, (7) Sivalingam 3, (8) Sivagami 2, (9) Meenakshi 3. The second item of schedule in the plaint was a land of total extent of 3.46 acres, which included 1.49 acres of wet lands in patta No.201 in S.No.1004/1 and S.No.1140 and also 1.97 acres of wet land in patta No.541 in S.No.282. The lands measuring 1.49 acres were in Vakkuvallamkudi, Kalpuruvu, Tenkasi Village, Tenkasi Taluk and the land measuring 3.46 acres were in Kodikurichi Village, Tenkasi Taluk. 4. It had been stated in the plaint that the Mutt called Sannadhi Madam, exclusively belongs to the plaintiffs who are Gomathinayaka Desikar, S/o Kutrala Sabhapathi Desikar and Karpaga Vinayagam, S/o Chokkalinga Desikar. They stated that vigragams mentioned in item No.1 and 2 are made up of brass and kept in a box in the Mutt. They are only for the personal worship of the plaintiffs' family. The plaintiffs used to carry the vigragams where ever they go. It had been further stated that the Mutt originally belonged to one 'Saminatha Gurukkal' a family ancestor. They are only for the personal worship of the plaintiffs' family. The plaintiffs used to carry the vigragams where ever they go. It had been further stated that the Mutt originally belonged to one 'Saminatha Gurukkal' a family ancestor. He died issueless. He was survived by his wife Maragatha Vadivu Ammal. She sold the plaint schedule 1 and schedule 2 properties and other properties to the plaintiffs' Great grand father Dashina Moorthy Desikar for a sum of Rs.150/- on 15.05.1872 by a registered sale deed. The plaintiffs claimed to be the descendents of Dashina Moorthy Desikar. It has also been stated that the said Dashina Moorthy Desikar purchased the Kudivaram rights of the Mutt Lands out of his own funds by sale deeds dated 27.05.1885 and 22.05.1890. He became the full owner of the Mutt and properties. The plaintiffs and their predecessors enjoyed the properties for more than 100 years and became owners by purchase and also by prescription and adverse possession. The Mutt consisted of properties and Vigragams as mentioned in item Nos. 1 and 2 and as mentioned above. It is stated that it is within a compound called 'Gurukkal compound' under the lock and key of the plaintiffs. It is not opened to public. The public cannot visit or worship it as of right. The plaintiffs performed poojas once a day and Gurupoojas for the ancestors on the 5th day after Chithira Pournami every year. There are no Prakarams, Vimanam or Kodikambam, Gopuram or other evidences to suggest it is a public temple. There is no Hundi. The plaintiffs control the entry to the Mutt. The admission is by invitation. 5. The plaintiffs claimed it is not a public religious institution. The plaintiffs had filed O.A.No.14/1981 under section 63(A) before the Deputy Commissioner, H.R & C.E, Tirunelveli, claiming that the Mutt is not a Religious Institution. The Deputy Commissioner dismissed the application on 29.10.1982. The first plaintiff filed an Appeal under section 69 of the Act on 03.09.1988. The defendant dismissed the same by order dated 07.04.1988. Claiming that the said order has to be set aside and further seeking a declaration that the Sannadhi Madam is not a Religious Institution, the suit had been filed as stated above before the Subordinate Court, at Tenkasi. 6. The defendant filed a written statement claiming that the Sannadhi Madam at Tenkasi is a public religious institution. Claiming that the said order has to be set aside and further seeking a declaration that the Sannadhi Madam is not a Religious Institution, the suit had been filed as stated above before the Subordinate Court, at Tenkasi. 6. The defendant filed a written statement claiming that the Sannadhi Madam at Tenkasi is a public religious institution. It had been stated that there are Pooja vigragams and the building is situated in Grama Natham in S.No. 700/8A1A in Tenkasi Town. The properties are in the name of the Mutt and not in the name of the plaintiffs. The plaintiffs are shown only as Managers of the Mutt. It has been stated that the Manager at the time of enquiry by the Inam Commissioner was one Sankar Pandaram @ Subramaniya Pandaram. It had been stated that the present Manager is not the legal heir of the original trustee. It had been further stated that in the sale deed dated 15.05.1872 by Maragatha Vadivu Ammal to Dashina Moorthy Desikar, it had been stated that it was not a sale granting title, but only granting rights as Dharma Kartha. It had therefore been stated that the plaintiffs were not the owners and were only managers. It had been stated that the properties are Inam properties. It had been further stated that the public and the residents worship at the Mutt everyday. They are offered vibuthi prasatham. There are two servants namely Subbiah Desikar and Lakshmi Ammal. In the Inam register it has also been noted as a public Mutt. The public are not prevented from offering worship. The Mutt is situated in Government Natham land. Annadhanam is being done during Chithira Pournami and Maheswara pooja festivals. It had been stated that the application in O.A.No.14/1981 and the appeal before the defendant were dismissed on merits. It had therefore been stated that the Sannadhi Madam is a public religious institution and consequently the defendants claimed that the suit should be dismissed. 7. On perusal of the pleadings, the learned Subordinate Judge, Tenkasi had framed the following issues for trial. 1. Whether the Sannadhi Madam is a private institution or a public religious institution? 2. Whether the plaintiffs are entitled to the relief of declaration? 3. To what reliefs are the plaintiffs entitled to? 8. 7. On perusal of the pleadings, the learned Subordinate Judge, Tenkasi had framed the following issues for trial. 1. Whether the Sannadhi Madam is a private institution or a public religious institution? 2. Whether the plaintiffs are entitled to the relief of declaration? 3. To what reliefs are the plaintiffs entitled to? 8. The parties went to trial and during trial, the first plaintiff Gomathinayaka Desikar was examined as P.W.1 and he marked Exhibits A1 to A6. Ex.A1 is the sale deed dated 18.05.1972 by Maragatha Vadivu Ammal to Dashina Moorthy Gurukkal. Ex.A2 is the sale deed dated 29.12.1974 by Sivarama Krishnan to Dashina Moorthy Gurukkal. Ex.A3 dated 27.05.1985 is the sale deed executed by the Theertharappa Mudaliyar Vagayara to Dashina Moorthy Gurukkal. Ex.A4 was the order passed by the defendant dated 07.04.1988 and Ex.A6 was the order passed by Deputy Commissioner in O.A.No.14/81 dated 01.02.1983. 9. On the side of the defendants, a Retired Inspector of the H.R & C.E Department, Munusamy was examined as D.W.1 and he marked Exhibits B1 to B9. These included the order, dated 29.10.1982 by the Deputy Commissioner, Tirunelveli as Ex.B3; the statement of the plaintiff to the Inspector, H.R & C.E Department, Tenkasi, dated 19.03.1982 as Ex.B4; The statement of Bagavathiapillai before the Inspector, dated 20.03.1982 as Ex.B5; the statement of Chidambarakambar before the Inspector, dated 20.03.1982 as Ex.B6; the order of the settlement Tahsildar, Kovilpatti as Ex.B7 series; the file relating to Sannadhi Madam maintained by the commissioner, H.R & C.E, Chennai, dated 06.04.1981 as Ex.B8 and receipt for fasli 1391 as Ex.B9. The report of the Inspector and the Rough Sketch of the Inspector H.R & C.E were marked as Exhibits C1 and C2. 10. On consideration of the oral and documentary evidence, the learned Subordinate Judge, Tenkasi, declined to grant the relief of declaration sought by the plaintiff and also upheld the order of the Commissioner, H.R & C.E Department, thereby upholding the order that the Sannadhi Madam is a public religious institution. Challenging the said order the appellants are before this court. As stated above the first appellant died during the pendency of the proceedings and the third appellant had been brought on record. 11. The learned counsel for the appellant Mr. Challenging the said order the appellants are before this court. As stated above the first appellant died during the pendency of the proceedings and the third appellant had been brought on record. 11. The learned counsel for the appellant Mr. G. Sridharan in the course of his arguments pointed that the Sannadhi Madam is a private religious institution, originally started by Saminatha Gurukkal and thereafter devolved to Dashina Moorthy Desikar who was the ancestor of the plaintiffs/appellants. The learned counsel further stated it is a private house set inside a compound within 'Gurukkal compound'. The lock and key are with the appellants. It is not open to the public. There are no Prakaram, Vimanam, Kodikmbam or Gopuram. There is no Hundi. The entry of the public is controlled by the appellants and the entry is by invitation only. The learned counsel further pointed Exs.A1 to A3 are the sale deeds in favour of the Dashina Moorthy Desikar who is the Great Grand Father of the appellants. The learned counsel pointed out the definition of the temple under section 6(20) of the H.R & C.E. Act and stated that the Sannadhi Madam does not have the requisite feature of a temple. Section 6 (20) of the H.R & C.E. Act defines a temple as follows: (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;? 12. The learned counsel relied on (2017) 1 MLJ 465 , in the case of Sri Ayyappa Seva Samajam, represented by its Secretary, Plot No. C-45 Avenue, Annanagar, Chennai - 600 040 Vs. Commissioner, Hindu Religious and Charitable Endowments, (Administration) Department, Nungambakkam, Chennai - 600 034, in particular at paragraph 29, wherein it has been held as follows: “Upon considering the evidence on record, I am of the considered opinion that the vital ingredients namely, the dedication of the temple to the public and the fact that the public had the right to worship have not been established. Though certain factors like resemblance in architecture, distribution of prasadam etc. have been established, they are only indicating the factors and not determining the factors. The cardinal point namely, right of the public to worship has not been established. Though certain factors like resemblance in architecture, distribution of prasadam etc. have been established, they are only indicating the factors and not determining the factors. The cardinal point namely, right of the public to worship has not been established. Even assuming that the statements made by the individuals that they had been worshipping the temple, as rightly pointed out by Mr. T.R. Rajagopalan learned Senior counsel, appearing for the appellant and as per the decisions of the Hon'ble Supreme Court, unless it is shown that such worship is of right, the temple in question cannot be considered to be a public temple.” 13. The learned counsel also relied on the judgment in (2003) 5 Supreme Court Cases 46, in the case of Kuldip Chand and another Vs. Advocate General to Government of H.P. And others, at paragraph 47, wherein the Honourable Supreme Court had laid down the guidelines to determine whether an endowment is a public or private endowment. Paragraph 47 is as follows: “47. This Court laid down the following tests as sufficient guidelines to determine on the facts of each case whether an endowment is of a public or private nature: (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right. (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large. (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature. (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.” Pointing out the above, the learned counsel stated that the Mutt being a private institution cannot be declared as a public religious institution and consequently stated that the Appeal should be allowed. 14. On the other hand Mr. R. Velmurugan, the learned Government Pleader, reiterated the findings of the learned Principal Subordinate Judge, Tenkasi and pointed out that there is evidence to show that the public worship in the temple as a matter of right and that vibuthi prasatham is given and there is no restriction on the entry of the general public into the Mutt. The learned Government Pleader also relied on the report Ex.C1 and the plan Ex.C2 of the Inspector, H.R. & C.E and stated that the characteristics of a temple are found. It was also pointed by the learned Government Pleader that the temple is situated in a Government natham land and consequently he reiterated that the Commissioner had given findings on merits that the Sannadhi Madam is a religious public institution and consequently urged that the court should dismiss the Appeal. 15. I have carefully considered the rival submissions. The suit schedule property as seen from the description is Government natham land in S.No.700/8A1A, D.No.39/89 in Tenkasi Town and Municipality, Tenkasi Sub Registrar Office, Tenkasi Registration District. It is called Sannadhi Madam. As it is seen from the description, the property is situated in Government natham land. It is also seen from the description given in item no.1 and 2 of the plaint that the following Vigragams are found in the Mutt. (1) Pillaiyar 4, (2) Murugan, (3) Sattanathar, (4) Rajarajeswari, (5) Natarajar, (6) Deshinamoorthy, (7) Sivalingam 3, (8) Sivagami 2, (9) Meenakshi 3. Apart from this the plaintiffs have also included the wet lands in Vakkuvallamkudi Village and Kodikurichi Village as schedule No.2. They have not stated anything about the title to the said wet lands. 16. (1) Pillaiyar 4, (2) Murugan, (3) Sattanathar, (4) Rajarajeswari, (5) Natarajar, (6) Deshinamoorthy, (7) Sivalingam 3, (8) Sivagami 2, (9) Meenakshi 3. Apart from this the plaintiffs have also included the wet lands in Vakkuvallamkudi Village and Kodikurichi Village as schedule No.2. They have not stated anything about the title to the said wet lands. 16. On perusal of Ex.A1, which is the sale deed mentioned in the plaint giving title to the ancestors of the plaintiffs dated 18.05.1872 and executed by Maragatha Vadivu Ammal in favour of Dashina Moorthy Desikar, it is revealed that what was actually conveyed is, not title to the lands but the rights to act as Dharma Kartha. In the sale deed it had been given as follows: xxxxxx The above recitals clearly prove that the appellants and their ancestors are not the owners of the suit Mutt and its properties. It is also seen that the property is actually situated in the Government natham lands. The definition of natham lands is given as follows In Ramanatha Aiyar’s Law Lexicon 3rd Edison: “Grama natham” has been described as follows: “Ground set apart, on which the house of a village may be built”. This is a classification of the Government lands and it indicates that the said land had been classified as a place where a house can be built. However it is not private land. It is common village land set apart where houses can be built. This naturally means that the Sannadhi Madam in the present case is also situated in the common land where houses can be built and instead a house being built a Mutt has been built. Still the fact remains that land belongs to the Government. 17. A further perusal of the records also reveal that the very presence of the vigragams as mentioned in schedule item No.1(1) indicate that as many as 17 vigragams are being worshipped in the Mutt. It naturally cannot be only for the exclusive use of the appellants. The vigragams are meant for the public. Moreover in the sale deed the right to act as Dharma Kartha alone has been granted. This naturally means that the appellants and ancestors had the restricted right to act as Managers. A manager cannot become a owner. Moreover it has also come out in evidence that there vibuthi prasatham is being given regularly during the Poojas to the vigrahams. Moreover in the sale deed the right to act as Dharma Kartha alone has been granted. This naturally means that the appellants and ancestors had the restricted right to act as Managers. A manager cannot become a owner. Moreover it has also come out in evidence that there vibuthi prasatham is being given regularly during the Poojas to the vigrahams. This indicates presence of the general public. The prasatham is given to the general public. When general public are offered prasatham, it would be highly inappropriate to hold that the general public are restricted from entering into the Mutt at the time the prasatham are offered. Any person can claim and receive prasatham in a temple. This also means that the characteristics of temple as given in definition under section 6(20) of the act namely that a temple is a place used to offer public religious worship and is dedicated as place of public religious worship is satisfied by the Sannadhi Madam, which is the subject matter of the present Appeal. It is thus seen that there is worship as of right. The Mutt satisfies the conditions necessary to be declared as a public religious institution as held by the Judgments relied on by the learned counsel for the appellant himself. The contention of the learned counsel for the appellant that it is an exclusive private property cannot be accepted since the Mutt itself is situated in a grama natham land. It is also seen from the written statement that the land was originally a part of the Inam settlement. This is established by Ex.B8 which is the entire file relating to the Sannadhi Madam maintained by the respondent office. Moreover as given in Ex.A2, the only right given to Dashina Moorthy Gurukkal was to act as Dharma Kartha. He was not given ownership rights, but only rights to act as a manager. Moreover it is also seen that in the plaint, the plaintiffs have also claimed title through adverse possession. This naturally means that they should accept the title of the Government. On this ground also the stand of the appellants that they are the owners of the Sannadhi Madam is rejected. Consequently for all the above reasons, I hold that the Appeal is to be dismissed. 18. In the result this Appeal Suit is dismissed with costs. This naturally means that they should accept the title of the Government. On this ground also the stand of the appellants that they are the owners of the Sannadhi Madam is rejected. Consequently for all the above reasons, I hold that the Appeal is to be dismissed. 18. In the result this Appeal Suit is dismissed with costs. The judgment and decree of the learned Subordinate Judge, Tenkasi in O.S. No. 109 of 1988, dated 03.09.1993 is confirmed.