JUDGMENT (Prayer: Second Appeal is filed under Section 100 of C.P.C, to set aside the judgment and decree dated 09.07.2004 passed in A.S.No.47 of 2001 on the file of the Subordinate Court, Padmanabhapuram and confirm the judgment and decree dated 03.06.1999 passed in O.S.No.213 of 1998 on the file of the Principal District Munsif Cum Judicial Magistrate, Eraniel.) The plaintiffs are the appellants. 2. The plaintiffs filed O.S.No.213 of 1998 before the Principal District Munsif Cum Judicial Magistrate, Eranial for declaration that the first plaintiff trust and temple is a religious denominational one belonging to the Nair Community of Thirunainarkurichy. The plaintiffs prayed for a consequential permanent injunction restraining the defendants from interfering with the administration of the trust by the plaintiffs 2 to 4 or the trustees elected from time to time. The said suit was decreed by the trial Court. Defendants 2 and 3 filed A.S.No.47 of 2001 before the Subordinate Court, Padmanabhapuram. The learned Subordinate Judge was pleased to allow the appeal and dismissed the suit. As against the said judgment, the present second appeal has been filed by the plaintiffs. 3. The plaintiffs had contended that the plaint trust and the plaint properties are administered by the trustees namely plaintiffs 2 to 4 in the present suit. According to the plaintiffs, the trustees are periodically elected from and out of by the members of Nair community of Thirunainarkurichy. According to the plaintiffs, the beneficiaries of the plaint trust being exclusively the members of the Nair community of Thirunainarkurichy Village, the plaint trust is a denominational one and no other section of the Hindu public has any right in the plaint trust and they are not even worshippers of the plaint temple. According to the plaintiffs, defendants 2 and 3 have no locustandi to interfere in the administration of the plaint temple or its property. 4. The plaintiffs further contended that the trust being a denominational one, it is entitled to the benefit and protection as contemplated under Article 26 of Constitution of India. The plaintiffs further contended that defendants 2 and 3 have issued a notice on 03.05.1975 under Exhibit A1 appointing first defendant as a fit person of the temple. The above said notice is without any jurisdiction and it amounts to interference in the administration of the temple and possession of the temple property. Hence, the present suit. 5. The plaintiffs further contended that defendants 2 and 3 have issued a notice on 03.05.1975 under Exhibit A1 appointing first defendant as a fit person of the temple. The above said notice is without any jurisdiction and it amounts to interference in the administration of the temple and possession of the temple property. Hence, the present suit. 5. Defendants 2 and 3 who are authorities under the Hindu Religious and Charitable Endowment Act, filed a written statement contending that the plaint temple is a place of public religious worship and it is worshiped by all sections of the Hindu communities from very ancient times. The defendants had further contended that the origin of the temple is not known and it is also not known when and by whom the plaint temple was founded and the deity was installed. The defendants had further contended that the temple is situated in a Government poromboke and all Hindu public are worshipping in the plaint temple as a matter of right. The defendants had further contended that the plaintiffs had originally filed O.S.No.49 of 1976 before the same Court for the same relief and the said suit was dismissed for default on 04.02.1977. Thereafter, the plaintiffs filed I.A.No.410 of 1977 to restore the said suit and the said application was also dismissed on 29.01.1980. Hence, the present suit is not maintainable. 6. Based upon the said pleadings and evidence, the trial Court arrived at a finding that Exhibit B2 which is said to be a document executed among the members of Nair community and two brahmins will show that the persons from all communities participated in the functions and festivals and that Nair community did not have sole right to have administration of the temple. Based upon the said findings, the trial Court concluded that the suit temple is not a denominational one. 7. On appeal, the learned Appellate Judge has reversed the findings and held that the public belonging to other communities were excluded in the management and affairs of the temple and it was only the Nair community of the particular village are maintaining the said temple. Based upon the said fact, the Appellate Judge proceeded to hold that the suit temple is a denominational one. As against the same, defendants had filed S.A.No.1122 of 1985 before this Court. Based upon the said fact, the Appellate Judge proceeded to hold that the suit temple is a denominational one. As against the same, defendants had filed S.A.No.1122 of 1985 before this Court. After hearing both parties, this Court arrived at a conclusion that both the trial Court as well as the Appellate Court have erred in not properly appreciating Exhibit B2 document. In order to arrive at a finding with regard to the fact that whether Exhibit B2 was acted upon or not, this Court had allowed the second appeal on 18.06.1988 and remitted the matter back to the trial Court for fresh consideration after letting in oral and documentary evidence on the either side. After remand, fresh oral and documentary evidence has been let in by the plaintiffs. Based upon the said oral and documentary evidence, the trial Court after careful analysis of various clauses in Exhibit B2, had arrived at a finding that the said document has not been acted upon. That apart, the only clause that is found in the said document relating to the administration of the temple has explicitly stated that the said issued would be decided in future. Based upon the said findings, the trial Court arrived at a conclusion that Exhibit B2 document has not been acted upon. 8. The trial Court further found that there is no evidence whatsoever to arrive at a conclusion that any other community has made a claim over the suit temple. The trial Court further found that no other community has ever made any claim with regard to the administration of the temple. Based upon the said findings, the trial Court concluded that the suit temple is a denominational temple of the plaintiffs and decreed the suit as prayed for. 9. The First Appellate Court held that the judgment in the previous suit proceedings namely Exhibit B1 will operate as res judicata. According to the learned Appellate Judge, the said suit was filed by the same plaintiffs for the same prayer and it was dismissed for default. Hence, the present suit is barred by principles of res judicata. The First Appellate Court further found that the entire burden is upon the plaintiffs to establish whether Exhibit B2 had come into an effect or not. However, the plaintiffs miserably failed to prove that Exhibit B2 has not come into effect. Hence, the present suit is barred by principles of res judicata. The First Appellate Court further found that the entire burden is upon the plaintiffs to establish whether Exhibit B2 had come into an effect or not. However, the plaintiffs miserably failed to prove that Exhibit B2 has not come into effect. A mere reading of Exhibit B2 will disclose that, apart from Nair community, general public from any other communities will also be entitled to become members of the said sangam. The First Appellate Court further found that from time immemorial, general public from Hindu religion belonging to various castes were offering their worship in the suit temple. Hence, the suit temple can never be considered to be a denominational temple of Nair community of Thirnainarkurichy. Based upon the said findings, the First Appellate Court reversed the judgment and decree of the trial Court and dismissed the suit. As against the same, the present second appeal has been filed by the plaintiffs. 10. The second appeal has been admitted on the following substantial questions of law: “(a) Whether the lower appellate court is legally correct in presuming that the suit temple is a public temple on the reason that the plaintiffs' witnesses are unable to mention the name of the person, who constructed the said temple and installed deity? and whether it is a valid presumption? (b) Whether the lower appellate court is legally correct in presuming that the temple is the public temple in case even if it has been situated in poramboke?” 11. The learned counsel for the appellants had contended that this Court by a judgment and decree dated 18.06.1998 in S.A.1122 of 1985 has remanded the matter for fresh consideration to consider the fact whether Exhibit B2 has been acted upon or not. No other issue was referred to the trial Court for consideration. In such circumstances, the First Appellate Court had exceeded the order of remand and proceeded to hold that Exhibit B1 judgment in the previous suit would operate as res judicata. No other issue was referred to the trial Court for consideration. In such circumstances, the First Appellate Court had exceeded the order of remand and proceeded to hold that Exhibit B1 judgment in the previous suit would operate as res judicata. The learned counsel had further contended that the previous suit in O.S.No.49 of 1976 was only dismissed on the technical ground due to non issuance of statutory notice under Section 80 of C.P.C. Hence, the present suit which has been filed after complying with the statutory provisions under Section 80 of C.P.C could never be presumed as one barred under the provisions of res judicata. The learned counsel had further contended that when the previous suit has not been decided on merits, the First Appellate Court was not legally correct in holding that the judgment under Exhibit B1 would operate as res judicata. 12. The learned counsel for the appellants had further contended that the temple is exclusively meant for the worship of Nair community of Thirnainarkurichy Village. According to him, Nairs of the said village are in administration of the said temple from time immemorial. He had further contended that no other community has made any claim for administration of the said temple. The learned counsel for the appellants had also pointed out that they have examined a person belonging to a different community as PW5 to prove that the suit temple exclusively belonging to Nair community. The learned counsel had further contended that the plaintiffs have established all ingredients to constitute a denomination and hence, they are entitled to get a decree as prayed for. The learned counsel had further contended that the findings of the First Appellate Court that the suit property is located in a poromboke land is factually incorrect and he had pointed out that Exhibits B3 and B4 extracts of settlement registers to impress upon the Court that the suit temple is located in a private patta land and it is not located in a Government poromboke. 13. Per contra, the learned Government Advocate appearing for the respondents had contended that originally the same plaintiffs have filed O.S.No.49 of 1976 for the same relief. The said suit was not dismissed on any technical ground of non issuance of Section 80 notice. 13. Per contra, the learned Government Advocate appearing for the respondents had contended that originally the same plaintiffs have filed O.S.No.49 of 1976 for the same relief. The said suit was not dismissed on any technical ground of non issuance of Section 80 notice. He had further contended that if really the said suit has been dismissed for non issuance of Section 80 of C.P.C notice, the plaintiffs would not have filed I.A.No.410 of 1977 to restore the suit. Hence, the present suit may not be barred under Section 11 of C.P.C, but barred under Order 9 Rule 9 C.P.C. The learned Government Advocate had further contended that the plaintiffs have not pleaded or proved the ingredients necessary or constituting a denominational temple. He had further contended that there are no pleadings or proof to the effect that who constructed/founder of the said temple. Just because members of a particulate community are in administration of the said temple for so many years, the temple cannot be construed to be a denominational temple. 14. The learned Government Advocate had further contended that the said temple is being worshipped by all sections of Hindus of the said locality irrespective of castes. When the suit temple is a public temple, as a matter of right when all sections of Hindus are worshipping in the said temple, the question of declaring the said temple as a denominational one exclusively belonging to the Nair community does not arise. He had further contended that the trial Court has not properly appreciated Exhibit B1 document which clearly points out that the society is being formed for the welfare of the members of all communities and the administration will vest with the members belonging to all communities. The First Appellate Court after careful consideration of oral and documentary evidence, has rightly reversed the judgment and decree of the trial Court. Hence, he prayed for dismissal of the second appeal. 15. I have considered the submissions made on either side. 16. The present second appeal is a second round of litigation before this Court. Earlier the same suit was dismissed by the trial Court but reversed by the First Appellate Court granting a decree in favour of the plaintiffs. The Hindu Religious and Charitable Endowment Department had filed S.A.No.1122 of 1985 before this Court. 16. The present second appeal is a second round of litigation before this Court. Earlier the same suit was dismissed by the trial Court but reversed by the First Appellate Court granting a decree in favour of the plaintiffs. The Hindu Religious and Charitable Endowment Department had filed S.A.No.1122 of 1985 before this Court. In the said judgment, this Court was pleased to remit the matter back to the trial Court with the following observation in Paragraph No.7 of the said judgment: “No.7. It is not necessary for this Court to go into the various decisions cited by both sides on the question of burden of proof and the requisites to qualify the temple as a denominational temple. The issue on the basis of which I am inclined to remand the matter for fresh consideration before the trial Court is as to whether Exhibit B2 was acted upon by the parties or not. The effect of Exhibit B2 will have considerable bearing on the nature of the temple and as such it is essential to record a finding as to whether Exhibit B2 was acted upon and if so, whether the totality of the evidence would be sufficient to hold that the suit temple was denominational or not. In this context both the parties will be entitled to adduce fresh evidence before the trial court and the trial Court may after providing opportunity for both sides to adduce oral and documentary evidence, consider as to whether Exhibit B2 was acted upon or not.” 17. In view of the judgment of the learned Single Judge of this Court, the trial Court was called upon to answer the question whether Exhibit B1 has been acted upon or not. In case if Exhibit B2 has been acted upon, the consequential result would be that the suit temple would belong to all sections of Hindu community. If Exhibit B2 has not been acted upon, then the trial Court would be constrained to consider the plea of the plaintiffs afresh whether the suit temple is a denominational temple or not. 18. A careful analysis of Exhibit B2 indicates the following aspects 18(i). It is an agreement entered into among 49 persons belonging to Thirnainarkurichy village. Out of them, 47 belonged to Nair community and two persons belonged to brahmin community. 18. A careful analysis of Exhibit B2 indicates the following aspects 18(i). It is an agreement entered into among 49 persons belonging to Thirnainarkurichy village. Out of them, 47 belonged to Nair community and two persons belonged to brahmin community. A perusal of the agreement demonstrates that the members of all communities who are aged about 18 years could become members of the said sangam. Except Clause 7 of the sangam, no other clause refers to the suit temple or its administration. As per Clause-7 of the said agreement, the members of the said sangam have decided to enter into an another agreement in future relating to the administration of the suit temple. Hence, it is clear that Exhibit B2 has no role to play with regard to the suit temple or its administration. There are no pleadings or evidence to the effect that subsequently an agreement was entered into between the concerned authorities relating to the administration of the suit temple. In the light of the above said discussion, it is clear that Exhibit B2 has not been acted upon. 19. In view of the above said discussions, it is clear that Exhibit B2 has not been acted upon and hence, the plaintiffs have to prove that the suit trust and temple are denominational one. 20. The learned Single Judge of our High Court in a judgment reported in 1987-100-LW-240 (The Assistant Commissioner, Hindu Religious and Charitable Endowment, Salem and others Vs. Nattainai K.S.Ellappa Mudaliar and others) in Paragraph Nos.22 and 33 has held as follows: “22..... Before referring to the evidence available on record with reference to this question, I am obliged to point out that very often the real question which arises for consideration is not understood or considered by the subordinate judiciary or the persons who conduct the cases before the subordinate Courts. In most of the cases, it is taken for granted that if a temple is owned and administered by a community the latter could be treated as a religious denomination automatically and the only question with reference to which evidence is let in by the parties is whether the community established and maintained the temple concerned and if that question is answered in the affirmative, the Court comes to the conclusion that such temple is a denominational temple. It must also be noted that a denominational temple is confused with a private temple and the tests which are laid down for deciding the character of the temple as private or public are applied while determining the denominational character thereof. The fact that a temple would become a denominational; temple only if it is established and maintained by a religious denomination or any section thereof is forgotten in many of the cases. That has led to some wrong decisions which create an impression in the minds of litigants that once the ownership and administration of a temple are proved to be resting with a particular community or a section thereof, that would be sufficient to declare, it to be a denominational temple..... 33. For the purpose of invoking Art.26 of the Constitution the plaintiffs have got to prove two facts (1) that they established the temple and (2) they maintain the temple. In fact, learned counsel for the respondents himself referred to the decision of the Supreme Court in Azeez Basha V.Union of India, MANU/SC/0039/1967: (1968) 1SCR833, where the Supreme Court held that the word “ establish and maintain” in Art.26(a) of the Constitution must be read conjunctively and it is only those institutions which a religious denomination establishes which it can claim to maintain and that the right under Cl.(a) of Art.26 will only arise where the institution is established by a religious denomination.....” 21. In view of the above said judgment, it is clear that for declaring a particular temple as a denominational temple, the following ingredients have to be satisfied. (i). It should be proved that the suit temple is being established/founded by a denominational community. (ii). The suit temple is in the management and administration of the said denominational community. (iii). Unless the suit temple is established by a denominational community, mere management or administration of the said temple for a longer period will not confer the status of denominational temple. 22. In the present case, there is no pleading whatsoever in the plaint that Nair community constitutes a denomination by itself. There is no evidence whatsoever to the said effect. When admittedly, the Nair community of Thirunainarkurichy does not constitute a denomination, the management and administration of the said temple for a longer time excluding the other community people of the locality will not be enough to confer denominational status on the suit temple. There is no evidence whatsoever to the said effect. When admittedly, the Nair community of Thirunainarkurichy does not constitute a denomination, the management and administration of the said temple for a longer time excluding the other community people of the locality will not be enough to confer denominational status on the suit temple. 23. The trustee of the temple has been examined as PW1 who has categorically admitted in his cross examination that he is not aware of the fact that who has constructed the said temple and in which year the said temple was constructed. One of the parties to Exhibit B2 document has been examined as PW4. In his cross examination, he has also admitted that he is not aware of the fact that who had constructed the suit temple. There is no averment whatsoever in the plaint with regard to the fact who had constructed the suit temple. Hence, the plaintiff not being a denominational community, not have constructed/founded the suit temple, will not be entitled to claim denominational status to the temple by the mere management/administration of the suit temple for attracting the benefits under Article 26 of Constitution of India. 24. In view of the above said discussion, it is clear that Exhibit B2 agreement has not been acted upon and the plaintiffs have miserably failed to prove that the suit temple is a denominational temple. The trial Court has merely concluded that Exhibit B2 has not been acted upon and proceeded to grant a decree in favour of the plaintiffs without considering whether the plaintiffs have established the ingredients of a denominational temple. The First Appellate Court merely concluded that Exhibit B2 has been acted upon and dismissed the suit. However, both the Courts below have not considered the fact whether the plaintiffs have established the ingredients of constituting a denomination and whether the plaintiffs have established that the suit temple is a denominational temple or not dehors of Exhibit B2. 25. In view of the above said discussion, both the substantial questions of law are answered as against the appellants. The second appeal is dismissed. No costs.