JUDGMENT : 1. A suit for declaration of co-ownership right, possession thereof over plaint A and B schedule and a permanent prohibitory injunction not to meddle with the right of plaintiff, was decreed by both the trial court and the first appellate court. Earlier the suit was dismissed, but the first appellate court set aside the decree and remanded back to the trial court. It is thereafter both the courts below decreed the suit, against which defendants 1, 3, 8, 9 , 10, 13, 14, 15, 21 and 23 came up with this appeal. 2. The plaint A schedule is having 24.5 cents in Sy.No.5/8 A of Thiruppuram village, Neyyattinkara and the B schedule is the structures situated therein, the temple and its connected structures. The plaint A schedule property was a part of large extent of 1 acre 83 cents in Sy.No.5/8 A. Earlier this property was subjected to a settlement by the settlement officer under the Travancore Oodukur settlement proclamation 1122 (ME), by which it was divided into 14 plots and allotted to 10 persons. The plot No.11 is the plaint A schedule. It was kept in common to the 10 persons under the settlement order -Ext.A1, over which the plaintiffs claim co-ownership right and possession. The suit was instituted in a representative capacity for themselves and also for and on behalf of all the co-owners. 3. The defendants contested the suit that the temple is a public temple belonged to a section of people, the Ezhava community and from time immemorial they were managing and administering the affairs of the temple through an elected body by name Kshetra Yoga Committee headed by its President. Inter alia it was contended that they have acquired so many immoveable properties in the name of deity. On 14.10.1982, they have executed and registered a trust udampady based on the decision taken by the general body of section of people belonged to Ezhava community dated 8.8.1982. The trial court and the first appellate court rejected the contention of the defendants and granted a declaration in favour of the plaintiffs besides a prohibitory injunction not to meddle with the right, title and interest of the plaintiffs over the property. 4. During the pendency of this appeal, some of the defendants and the plaintiffs were passed away. But their legal heirs were not impleaded. 4. During the pendency of this appeal, some of the defendants and the plaintiffs were passed away. But their legal heirs were not impleaded. Hence, it was submitted that the present appeal is abated as against those who are dead. 5. The questions to be addressed in this appeal are: (1) Whether an appeal would stand abated on death of some of the appellants and respondents during its pendency, due to non-impleadment of legal heirs/legal representatives ? Is there any difference in the legal position if it is in a representative capacity or defended in a representative capacity ? What would be the legal position if it is both under individual and representative capacity ? (2) What is the right held by the plaintiffs over the plaint schedule property and whether it is a divisible or an indivisible right of co-ownership ? What is the legal impact of acts done by some of the co-sharers over the property, if it is related to indivisible co-ownership right over the said property ? (3) When some of the co-owners having indivisible right had acted in derogation of others, can a suit be maintained in a representative capacity for and on behalf of the said co-owners and whether estoppel by conduct would not come into play against the plaintiffs ? (4) Is it permissible to have conflicting interest and divergent contention between the plaintiffs in a suit and what is the legal position if it is a representative suit for and on behalf of the person having the same interest, but some of them acted against the said interest ? (5) What would be the legal impact when there is no challenge regarding the act done against the interest of the plaintiffs by others in whose behalf also the suit was instituted in a representative capacity and whether the plaintiff would stand bound by the act done against their interest by other co-owners ? 6. (5) What would be the legal impact when there is no challenge regarding the act done against the interest of the plaintiffs by others in whose behalf also the suit was instituted in a representative capacity and whether the plaintiff would stand bound by the act done against their interest by other co-owners ? 6. It was submitted that the appeal will stand abated on the death of some of the parties and there cannot be a decree against a dead person and relied on various decisions viz., (1) Masilamani Nadar v. Kuttiamma [ 1960 KLT 901 ] (2) Pandit Sri Chand and others v. Jagdish Parshad Kishan Chand and others [ (1966) 3 SCR 451 ] (3) M. Shambhatta v. Mena Ramakrishna Bhatta [1971 KLT SN 50] (4) Ramagya Prasad Gupta and others v. Shri Murli Prasad and others and Brahamdeo Prasad Gupta and others v. Shri Murli Prasad and others [ (1973) 2 SCC 9 ] (5) Zilla Singh and another v. Chandgi and others [1991 supp (2) SCC 430] (6) Satguru Sharan Shrivastava v. Dwarka Prasad Mathur (dead) through LRs and others [ AIR 1996 SC 3504 ] (7) State of Kerala v. Ramachandran Pillay [1999 (2) ILR Kerala 663] (8) Amba Bai and Others v. Gopal and Others[ (2001) 5 SCC 570 ] (9) James v. Mathew [ 2012 (4) KLT 666 ]. 7. The question of abatement came up before this court as early as in the year 1960 Masilamani Nadar's case (supra), wherein it was held that the suit will not stand abated in entirety, but would abate only with regard to the share of the deceased. But it has only a contextual application as it is one for recovery of property with arrears of rent. 8. But it has only a contextual application as it is one for recovery of property with arrears of rent. 8. A Three Judge Bench of the Apex Court in Pandit Sri Chand's case (supra) in continuation of the decision drawn in State of Punjab v. Nathu Ram [ (1962) 2 SCR 636 ] laid down the legal proposition that “abatement of an appeal against the deceased respondent means not only that the decree between the appellant and the deceased respondent has become final, but also as a necessary corollary that the appellate court cannot in any way modify that decree directly or indirectly” by following the tests laid down in Nathu Ram's case(supra), that is to say, “(a) when the success of the appeal may lead to the court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent;(b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed.” 9. The impact of a ground common to all the defendants and non-impleadment of legal heirs of deceased appellant was considered by this Court in M. Shambhatta's case (supra) as follows: “In a suit there may be several plaintiffs and defendants. The decree of the court may proceed on any ground common to all the plaintiffs or all the defendants. In such a case any one of the plaintiffs or defendants may appeal from the whole decree. He may make the other non-appealing plaintiffs or defendants, as the case may be, respondents in the appeal or he may not make them parties at all. In either case, in the appeal the appellate court is competent to reverse or vary the decree in favour of the appealing or non-appealing plaintiffs or defendants, as the case may be. He may make the other non-appealing plaintiffs or defendants, as the case may be, respondents in the appeal or he may not make them parties at all. In either case, in the appeal the appellate court is competent to reverse or vary the decree in favour of the appealing or non-appealing plaintiffs or defendants, as the case may be. Even if one of the non-appealing plaintiffs or defendants dies that does not in any way bar the appellate court from varying or reversing the decree in favour of all the plaintiffs or defendants, as the case may be. That will not be the case where all the plaintiffs or defendants, as the case may be, have jointly filed the appeal. In such case, on the death of any one or more of the appellants, the surviving appellants cannot seek to obtain a decree reversing or varying the decree in favour of all the plaintiffs or defendants as the case may be. It would also follow that, if there cannot be a decree varying the decree in its entirety, the surviving appellants cannot obtain a decree for themselves in the appeal reversing or modifying the decree of the lower court. That is because it would then mean a different decision in their favour in the appeal that the one reached or deemed to have been reached in regard to the appellant as against whom the appeal abates. It would lead to conflicting decisions. By reason of the death of the 4th appellant and the abatement of the appeal as against him, it is not open to the appellate court to enter into the merits of the appeal.” 10. Another Three Judge Bench of the Apex Court in Ramagya Prasad Gupta's case (supra) had applied the legal position and the tests applied in Nathu Ram's case (supra) and held that the three tests laid down in Nathu Ram's case are not cumulative tests and on satisfaction of one of the tests, the court may dismiss the appeal as abated. The very same legal position was reiterated by the Apex Court in Zilla Singh's case (supra) and in Satguru Sharan Shrivastava's case (supra). 11. The very same legal position was reiterated by the Apex Court in Zilla Singh's case (supra) and in Satguru Sharan Shrivastava's case (supra). 11. Another Three Judge Bench of the Apex Court in Amba Bai's case (supra) had applied the rigour of Order 22 Rule 3 and 9 of C.P.C. in a second appeal even after its disposal on merit without noticing the death of the sole appellant. It was held that the second appeal abated and as such the decree and judgment of the first appellate court became final. It was further held that there is no application of doctrine of merger in that situation. The relevant portions of the judgment is extracted below for reference : “As the judgment in the second appeal was passed without the knowledge that the appellant had died, the same being a judgment passed against a dead person is a nullity. When R died during pendency of the second appeal, his legal representatives could have taken steps to get themselves impleaded in the second appeal proceedings and as it was not done, the second appeal should be taken to have abated by operation of law. When the second appeal had abated and the legal representatives of the appellant were not brought on record, the decree which was passed by the first appellate court, would acquire finality. By virtue of the order passed by the first appellate court, the plaintiff's suit for specific performance was decreed. Failure on the part of the legal heirs of R to get themselves impleaded in the second appeal and pursue the matter further shall not adversely affect the plaintiff decree-holder as it would be against the mandate of Rule 9 Order 22 of the Code of Civil Procedure.” 12. All these decisions are dealing with abatement of suit or appeal, which would normally come under the purview of Order 22 C.P.C. and not dealing with the question of abatement of a suit or appeal instituted under Order 1 Rule 8 C.P.C. in a representative capacity. A suit instituted under Order 1 Rule 8 C.P.C. in a representative capacity or defended in a representative capacity is an exception to the general rule that all necessary parties should join as parties to the suit. A suit instituted under Order 1 Rule 8 C.P.C. in a representative capacity or defended in a representative capacity is an exception to the general rule that all necessary parties should join as parties to the suit. It is because of the reason that when there are numerous persons or a fluctuating body, it may not be possible to make them in the party array of the suit and a representative suit would be a proper solution to get over the said difficulty, provided that there should be a proper publication by way of notice to all concerned, having the same interest, to come and join with the proceeding. Thereafter the decree that may be passed would bind on all such persons irrespective whether they were made parties to the suit or they themselves impleaded in the suit or proceedings by virtue of Order 1 Rule 8(6) C.P.C. and their status would be a deemed party to the suit or proceedings and the decree thereof. By virtue of Order 1 Rule 8 (6) C.P.C., the decree passed in a representative suit would bind on all persons on whose behalf or for whose benefit the suit is instituted, or defended, as the case may be. There is a cardinal difference between a suit instituted or defended in a representative capacity, apart from other suits which are normally governed by Order 22 C.P.C. In fact, there is no abatement due to non-impleadment of legal heirs in a representative suit on the death of one or some of several plaintiffs who were permitted to sue in a representative capacity for numerous persons or a fluctuating body of numerous persons having the same interest in the suit. But, the death of any of the defendants would attract the rigour of Order 22 C.P.C. ( Rule 3 or 4),unless it was defended in a representative capacity for the persons having the same defence in the suit. But, the death of any of the defendants would attract the rigour of Order 22 C.P.C. ( Rule 3 or 4),unless it was defended in a representative capacity for the persons having the same defence in the suit. In a representative suit under Order 1 Rule 8 C.P.C., there cannot be any question of non-joinder of necessary parties regarding the non- inclusion of a person as a co-plaintiff who is holding the same interest as that of the plaintiffs when sued or as a co-defendant when defended based on a common interest, in compliance with the mandate under Order 1 Rule 8 C.P.C. The principle behind it is that certain persons can maintain a suit or defend a suit to protect an identical interest available to numerous persons. The expression 'same interest' as embodied under Order 1 Rule 8 C.P.C. constitutes the core ingredient so as to enable some of them or one of them to maintain a suit without the juncture of the numerous persons or a fluctuating body having the same interest provided that there should be compliance of the mandate under that provision by publication. On its compliance, the question of non-joinder of a person having the same interest would pale into insignificance, for short, the question of non-joinder does not arise on account of non-impleadment of a person who is having the same interest. The resultant effect of the said principle is that it is immaterial the number of plaintiffs who joined in a suit in a representative capacity and even one person having the same interest can very well maintain a suit in a representative capacity. The non-inclusion of some of the persons having the same interest in the suit, hence may not be fatal to the suit. The non-inclusion of some of the persons having the same interest in the suit, hence may not be fatal to the suit. Necessarily, if some of the persons who joined as the plaintiffs want to withdraw the suit and expressed their intention not to proceed with the suit, the suit can be proceeded with, with the remaining plaintiffs even after the deletion of other plaintiffs from the party array of the suit either by withdrawal or by abandonment and in that situation, the restriction imposed and the mandate to be complied with under Order 1 Rule 8(4) of C.P.C. may not have any application unless there is withdrawal or abandonment of the entire suit by the parties, for which the compliance of requirement of a fresh publication under sub-rule (4) intimating the withdrawal or abandonment of suit or any compromise, satisfaction entered into, cannot be avoided, without which there cannot be a withdrawal of the suit or abandonment. When several persons were permitted to sue for and on behalf of numerous persons having the same interest in the suit, the death of one or some of the plaintiffs and non-impleadment of their legal heirs would not abate the suit or the appeal as the case may be. The same would be the legal position in the case of death of one or some of the defendants who were defending the suit for the person having the same interest in a representative capacity. The only requirement is that atleast there should be one person among the persons who represented the interests of numerous persons in the litigation. The same would be the legal position in the case of death of one or some of the defendants who were defending the suit for the person having the same interest in a representative capacity. The only requirement is that atleast there should be one person among the persons who represented the interests of numerous persons in the litigation. Further, the court can implead any interested person having the same interest by exercising the power under Order 1 Rule 10 C.P.C. In short, a suit or an appeal, either sued or defended in a representative capacity would abate only when there is no person either to proceed with the suit or the appeal in a representative capacity or to defend the same in a representative capacity even after the compliance of requirement by way of publication under sub-rule(4) of Order 1 Rule 8 C.P.C. The presence of atleast one person in a representative status either to proceed with the suit or appeal or to defend the same would not cause abatement of the suit or appeal simply on the death of some of the persons having the same interest due to non-impleadment of their legal heirs. It is within the power of the appellate court or the trial court to have a fresh compliance of the requirement under Order 1 Rule 8 C.P.C. on the death of any of the persons in the party array of the suit or appeal in a representative status so as to enable other interested persons to join in a representative capacity. 13. A Division Bench of this Court in C.R.Ramakrishnan v. Raman and Others ( 1983 KLT 63 ) had laid down the legal position that there is no necessity to implead the legal heirs of one of the persons who was in a representative capacity in a suit. 14. In the instant case, the suit was instituted and defended in a representative status. Only some of the plaintiffs and some of the defendants alone were passed away during the pendency of the second appeal and their legal heirs were not impleaded. This Court during the pendency of this appeal, after the death of some of the parties had directed the existing appellants to have a fresh compliance of requirement under Order 1 Rule 8 C.P.C. and it was accordingly published in a news paper. This Court during the pendency of this appeal, after the death of some of the parties had directed the existing appellants to have a fresh compliance of requirement under Order 1 Rule 8 C.P.C. and it was accordingly published in a news paper. The existence of atleast one of the plaintiffs or one of the defendants who are in the representative status, would be sufficient to proceed with the suit or appeal or to defend it. 15. It is a suit for declaration of ownership right over plaint A and B schedule properties by the plaintiffs and the suit was instituted in their individual capacity as well as for an on behalf of all legal heirs and persons litigating under the ten persons under Ext.A1 settlement order of the year 1954. Admittedly, plot No.11, the temple property ( plaint A schedule) was allotted jointly to the ten persons who are the parties to Ext.A1 settlement order. On the other hand, the defendants claim that the temple situated in A schedule property is a public temple belonged to a section of people and it is being possessed and managed by a section of people from time immemorial through their representatives elected annually. They have also disputed the alleged co-ownership right claimed by the plaintiffs over the property. 16. The document of acquisition was not made mentioned in Ext.A1 settlement order and there is no statement anywhere in Ext.A1 settlement order to show the nature of acquisition of large extent of 1 acre 83 cents which is the subject of Ext.A1. On the other hand, the division effected into 14 plots out of large extent of 1 acre 83 cents and its separate allotment to ten persons, who were parties to Ext.A1 settlement order would itself show their co-ownership right over the entire extent of 1 acre 83 cents, in the absence of challenge against Ext.A1. The plot No.11, the temple property ( plaint A schedule), kept in common to all these ten persons which would sufficiently show that they are having co-ownership right over the property. Further, the defendant had purchased the share of two co-owners, subsequent to Ext.A1, in the year 1964 and 1981 under Exts.B9 and B6 and as such they are estopped from challenging the validity of Ext.A1 settlement order and the allotment of various shares to the ten persons therein. 17. Further, the defendant had purchased the share of two co-owners, subsequent to Ext.A1, in the year 1964 and 1981 under Exts.B9 and B6 and as such they are estopped from challenging the validity of Ext.A1 settlement order and the allotment of various shares to the ten persons therein. 17. Ext.A1 further shows the nature of co-ownership over plot No.11, the temple property. It was kept in common presumably on the reason that there is a temple in it and it was kept in common for the purpose of maintaining the temple and the deity. This would show the nature of co-ownership held by ten persons over plot No.11, the temple property, which was kept for the welfare and well maintenance of the deity and the temple, hence it would be an indivisible co-ownership right, not capable of division by partition. A divisible co-ownership right can be severed and partitioned either by a deed or by a decree of partition. But when it is indivisible as in the case of a temple property kept in common for the well being of the temple either by family arrangement or by partition or otherwise, the same would stand as not capable of partition or division. But that does not mean that the sharers will lose their co-ownership over the property. Their co-ownership right can be exercised only to a limited extent without causing any division of property. In the instant case, plot No.11 was kept in common in the year 1954 ME under Ext.A1 settlement order by the settlement officer constituted under the Travancore Oodukur settlement proclamation 1122 (ME) and the rest of property out of the large extent of 1 acre 83 cents was divided into 13 plots and given to ten persons. The plot No.11 kept in common for all the ten persons as it was a temple property not capable of division. So the co-ownership right, if any held by the above said persons or the persons litigating under them should be understood with respect to the nature of the holding - an indivisible co-ownership right. 18. As discussed earlier, it is a representative suit for declaration of co-ownership right of plaintiffs and other co-owners based on Ext.A1 settlement order of the year 1954 and those who are litigating under them and also in the personal capacity of plaintiffs being co-owners and persons litigating under them. 18. As discussed earlier, it is a representative suit for declaration of co-ownership right of plaintiffs and other co-owners based on Ext.A1 settlement order of the year 1954 and those who are litigating under them and also in the personal capacity of plaintiffs being co-owners and persons litigating under them. It is a simple suit for declaration of co-ownership right over A and B schedule property and for permanent prohibitory injunction. There is no challenge with respect to any of the deeds and acts done by the other co-owners who are parties to Ext.A1 settlement order or persons litigating under them. 19. Ext.B9 is the document executed in the year 1964 by one of the parties to Ext.A1 by which he had relinquished his co-ownership right in favour of the deity represented through an elected body of a section of people by name Kshethra Yogam and the Committee thereof, headed by its president. Thereby, the deity became one of the co-owners. The executant of Ext.B9 had admitted the status and authority of Kshethra Yogam and the committee thereof headed by the President to represent the deity even in the year 1964, by which he had relinquished his ownership right in favour of the deity represented through the Kshethra Yogam and the Committee thereof headed by the President. Since the suit is one for declaration of ownership right over the property, instituted in a representative capacity for all co-owners under Ext.A1 settlement order and the persons litigating under them, the act done by one of the co-owners on an earlier occasion under Ext.B9 would bind on the plaintiffs when the suit was instituted representing that co-owner also, the executant of Ext.B9 document, unless the same was brought under challenge in his/their individual capacity either as co-owners or otherwise. No such challenge was raised. But the suit was filed for and on behalf of that co-owner also, one of the party to Ext.A1 settlement order, wherein there is a clear recognition of the status and authority of Kshethra Yogam, a section of people (which would constitute and satisfy the expression 'public') represented by annually elected committee members headed by its President to represent the deity and to acquire immoveable property in the name of deity. Ext.B9 of the year 1964 was executed in favour of the deity represented by the Kshethra Yogam through its elected members, the Committee headed by its President. Ext.B9 of the year 1964 was executed in favour of the deity represented by the Kshethra Yogam through its elected members, the Committee headed by its President. In fact, it amounts to an admission made by one of the co-owners regarding the status and authority of Kshethra Yogam and the elected Committee headed by its President in the year 1964. It is an act of declaration by the executant of Ext.B9 admitting the status and authority of Kshethra Yogam and elected committee and its President to represent the deity. By virtue of Ext.B9, the deity would step into the status of one of the co-owners with all liberties and liabilities under Section 45 of the Transfer of Property Act and became a co-sharer having indivisible right over the property. When there is an admission by declaration in a registered document of transfer by admitting the status of the defendants, the Kshethra Yogam, the elected Committee and its President even in the year 1964 by one of the co-owner in whose behalf also, the suit was instituted, the plaintiffs who instituted the suit and acted in a representative capacity would stand bound by the admission made by the other co-owner in whose behalf also the suit was instituted,unless the admission was brought under challenge either on any vitiating ground such as mental incapacity, minority, undue influence, coercion, fraud, misrepresentation or voidability under Section 23 or 24 of the Contract Act. If such grounds are not available, there cannot be a representative suit for and on behalf of the person who had made an admission earlier, and when such a representative suit was filed on his behalf also, the admission made by him would operate against all the plaintiffs who bring up the action by way of a suit or appeal, as the case may be by applying the principle that there cannot be conflicting interest or conflicting contention between the plaintiffs, but there should be unity and identity in their interest and contention. Then the estoppel by conduct would come into play not only against the person who had made the admission, but also against all the plaintiffs who joined in the suit in a representative capacity or brought up the suit for and on behalf of the person who had made the admission, irrespective of the fact that the suit was also filed under their individual capacity, besides the representative capacity. The legal position would be different when the suit was filed in another capacity excluding the transferor of Ext.B9 or the transferee thereunder. But the suit was filed for and on their behalf also. When several plaintiffs joined in a suit based on a cause of action so as to enforce their common interest, the mere fact that they joined themselves as plaintiffs would amount to accepting every act and deeds done by each and every plaintiff before the suit as there is no scope for conflicting interests between the plaintiffs. The admission of status of the defendants even in the year 1964 hence would operate against all the plaintiffs and they are estopped from denying the same by virtue of the conduct of one among them -one among the numerous persons in whose behalf the suit was instituted. But the estoppel may not have any application when there is a challenge against the admission on any vitiating ground as stated above. No such vitiating ground was brought up. On the other hand, the suit was filed in a representative capacity representing all persons who are parties to Ext.A1 settlement order and persons litigating under them. 20. Out of plot No.14, an extent of 7.59 cents of property was assigned under Ext.B6 document dated 3.1.1981 by one of the sharers of Ext.A1 settlement order. It was obtained by the deity through the Kshethra Yogam, the Committee and the President who were representing the deity at that time and the executant of the document had recognized the status and authority of the Kshethra Yogam and the Committee headed by the President and also admitted their authority to acquire immoveable property in the name of deity. The suit is filed for and on behalf of the above said transferor also, who is a party to Ext.A1 settlement order, and the transferee thereunder. The suit is filed for and on behalf of the above said transferor also, who is a party to Ext.A1 settlement order, and the transferee thereunder. The transferor of Ext.B6 document also standing on the very same pedestal with the executant of Ext.B9 document and as such the plaintiffs are also bound by the admission made by the executant of Ext.B6 document. 21. There are so many documents showing subsequent acquisition of immoveable property in the name of deity by the Kshethra Yogam and the elected Committee thereof headed by its President. Under Ext.B2 dated 2.3.1970 an extent of 4.95 cents was purchased from another allottee under Ext.A1 document in the name of deity, wherein also the deity was represented by the Kshethra Yogam, the elected Committee and its President. In other words, the status of Kshethra Yogam and their authority to represent the deity through the elected members headed by the President was recognized by another sharer of Ext.A1 document in the year 1970 and as such, the plaintiffs are bound by the said admission also and estopped from challenging the above said admission by the act of one of the persons in whose favour also the suit was filed. 22. Ext.B3 is yet another document by which another extent of 4.5 cents was purchased on 20.3.1969 from a party to Ext.B10, another settlement order, with respect to some other property belonged to the very same persons. It was also obtained in the name of deity represented through the Kshethra Yogam and the Committee thereof headed by its President. Ext.B4 is the document by which an extent of 2.5 cents of property was acquired on 10.6.1976 from another allottee under Ext.B10 in the name of deity represented by the Kshethra Yogam, the Committee and the President. Ext.B5 is the document dated 22.10.1980 by which another four cents of property was acquired in the name of deity represented by the Kshethra Yogam, the committee and its President from another allottee under Ext.B10. Another extent of 6.372 cents of property was also obtained in the name of deity through its President under Ext.B7 dated 6.3.1982 from one of the allottee under Ext.B10 settlement order. An extent of 7.380 cents was also obtained in the same manner in the name of deity under Ext.B8 document dated 24/07/1982. Another extent of 6.372 cents of property was also obtained in the name of deity through its President under Ext.B7 dated 6.3.1982 from one of the allottee under Ext.B10 settlement order. An extent of 7.380 cents was also obtained in the same manner in the name of deity under Ext.B8 document dated 24/07/1982. In all these documents, the status and authority of Kshethra Yogam and the elected Committee headed by its President to represent the deity was well recognized and admitted from the year 1964 onwards and hence the plaintiffs are bound by the above said admission made by some of the sharers having the same interest with that of the plaintiffs. A representative suit can be maintained only when there is no conflicting interests or contentions between the plaintiffs who were permitted to sue in a representative capacity for and on behalf of some other person having the same interest. In maintaining a suit in a representative capacity, the core requirement is the existence of 'same interest' and in the absence of such interest, there cannot be a representative suit. The admission made earlier regarding the status and authority of the defendants would bind on the plaintiffs. Both the trial court and the first appellate court failed in appreciating the admission made in the earlier documents by some of the sharers who were having indivisible right of ownership over the property and impact of the said admission in a suit under Order 1 Rule 8 C.P.C. and that has resulted in miscarriage of justice. 23. Ext.B20, B21, B22 are the minutes commencing from the year 1967 to 1982 of the Kshethra Yogam dealing with the affairs of the temple. The conduct of annual election of office bearers and formation of the committee is also well evident from Ext.B20, B21 and B22. There are corresponding entries regarding the annual general body of a section of people and election of committee and office bearers. The accounts maintained for the said period, Ext.B23 was also produced from the custody of proper persons right from the year 1965 onwards and are of ancient in character. These documents would clearly show that atleast from the year 1967 onwards, the Kshethra Yogam through its elected Committee was managing the entire affairs of the temple in exclusion of the person who claims co-ownership right and also acquired several immoveable properties in name of deity. These documents would clearly show that atleast from the year 1967 onwards, the Kshethra Yogam through its elected Committee was managing the entire affairs of the temple in exclusion of the person who claims co-ownership right and also acquired several immoveable properties in name of deity. The three special rituals -erakki pooja, thattu pooja and dik bhali and its observance was also found a place in the minutes and accounts for the respective period. On the other hand, three documents alone was produced by the plaintiffs Ext.A4 programme notice of the year 1983 and Exts.A2 and A3 earlier decree and judgment. Ext.A4 admittedly obtained and prepared only after the institution of the suit under the guise of a stay order granted by the trial court. Regarding Exts.A2 and A3 earlier decree and judgment, both the courts below found that it will not constitute res judicata as the earlier suit was dismissed on the ground of incompetency due to non-compliance of Order 1 Rule 8 of C.P.C.. Hence it will not operate as res judicata in defending the present suit. In short, Exts.B1 to B9 and B20 to B23, would clearly show the authority of Kshethra Yogam to represent the deity and its assets. Admittedly, Kshethra Yogam stands for a section of people belonged to Ezhava community. A section of people would also satisfy the expression 'public'. As such, the temple, the deity and its property, the plaint A schedule and B schedule were held and managed by 'public', a section of people belonged to Ezhava community, from 1967 onwards in total exclusion of the persons claimed to be its co-owners till the date of suit. There is total exclusion of all the co-owners from the affairs of the temple, its management and its assets. The deity being a perpetual minor should always be represented by an animate body. 24. At the fag end of argument by relying on the legal proposition in Pakeerappa Ravi v. Seethamma (Dead) by LRs and Others [ 2001 (9) SCC 521 ], Babulal and Others v. Shankar Lal and Others [2008 (17) SCC 638] and Dalip Singh v. Bhupinder Kaur [2018 KHC 6138], it is submitted that the question whether a temple is a private or public is essentially a question of fact and the concurrent finding rendered cannot be altered. But in the instant case, there is omission to consider the material facts and to apply the legal position in its correct perspective and the same would constitute a substantial question of law. The decision rendered in Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Ka Kalidas and Others ( 1969 (2) SCC 853 ) was also pressed into service to show that the burden to show that the temple is a public is on the person who claims it. The evidence tendered by the defendants Exts.B2to B9 and Exts.B20 to B 23 would amply show that the temple in question managed by a section of people representing the deity and thereby acquired the character of a public temple under the authority of the public, a section of people, represented through its committee and President. The decree and judgment of the trial court and the first appellate court in the said circumstance cannot be sustained and liable to be set aside. I do so by allowing this appeal. The appeal is allowed. The decree and judgment of both the courts below are set aside. The suit is dismissed. No costs.