JUDGMENT (Prayer: This Appeal Suit has been filed, under Order 41 Rule 1 read with Section 96 of CPC, against the judgement and decree, dated 02.11.2012, made in OS.No.8455 of 2010, by the IV Additional Judge, City Civil Court, Chennai.) 1. This Appeal Suit has been filed, against the judgement and decree, dated 02.11.2012, made in OS.No.8455 of 2010, by the IV Additional Judge, City Civil Court, Chennai. 2. The suit was filed for declaration that the Plaintiff Temple is a Denomination Temple, coming within the meaning of the Article 26 of the Constitution of India and for permanent injunction. 3. The case of the Plaintiff is that the Plaintiff Temple belongs to Thiruneelakanda Marabinar, Shanmugananapuram or Kosapet Samuthayam of Kuyavars and it was established by the forefathers of the present Trustees about more than 200 years ago. The forefathers of the Trustees had built up the Temple in 1903 and properties were endowed to the Temple by C.Munusmy Pillai, who is the grandfather of the present Trustees. On 07.09.1978, the present Trustees established Sri Durgai Amman and Navagraha statues and renovated the same on 09.02.1998. The Trustees had filed an application before the Joint Commissioner, seeking to recognize them as Hereditary Trustees, under Section 63(b) of the Tamil Nadu Hindu Religious and Charitable Endowment Act. Without recognizing the rights of the Trustees as well as earlier litigations in OS.No.503 of 1859, the application was dismissed. Aggrieved by the same, the Trustees had filed an appeal in AP.No.20 of 2009. Pending the appeal, a fit person appointed to be in charge of the Plaintiff Temple disturbed the management of the Temple. Hence, the Trustees had filed WP.Nos.809 of 2009 and 1587 of 2009 and both WPs were disposed of by this Court, directing the Defendant Department to dispose of the appeal, dated 12.12.2008, within a period of three months and further observing that until the disposal of the appeal, the impugned order shall not be enforced. The Defendant has no right to interfere with the right and administration of the Plaintiff Temple. Even in 1859 a litigation was instituted in OS.No.503 of 1859, wherein the right of the founders was established and it was concluded that the Plaintiff Temple is a Denomination Temple and the said judgement is binding on the Defendant. The order of the Joint Commissioner in OA.No.8 of 2006 clearly established the same. Even in 1859 a litigation was instituted in OS.No.503 of 1859, wherein the right of the founders was established and it was concluded that the Plaintiff Temple is a Denomination Temple and the said judgement is binding on the Defendant. The order of the Joint Commissioner in OA.No.8 of 2006 clearly established the same. The rights of the present Trustees and establishment of the Temple as Denomination have been well recognized even as early as 1763. The Plaintiff had issued a notice, under Section 80 of CPC, dated 30.04.2009, to the Defendant, but no reply was sent. In such circumstances, the suit had been filed, seeking the reliefs, as stated above. 4. The case of the Defendant, in a nutshell, as set out in the written statement, is as follows:- a) The Plaintiff's Temple is a public Religious Institution as defined under Section 6(20) of the Tamilnadu Hindi Religious and Charitable Endowments Ac. The Plaintiff had already filed several Applications before the authorities under the Act for declaration that the Office of Trusteeship of the Temple is hereditary and subsequent suits were also filed and they failed in their attempts. The suit in OS.No.120 of 1977 filed under Section 70 of the Act was dismissed on 31.3.1978, holding that the order of the Commissioner, HR & CE is legally valid and the appeal filed as against the same in AS.No.1091 of 1978 was also dismissed on 24.11.1983. The Deputy Commissioner, Chennai had appointed the Executive Officer of the Arulmighu Ellaiyammal Temple, Periyamedu, Chennai, in his proceedings RC.20088/91/A1, dated 3.1.1992 as a fit person of the Plaintiff Temple. b) Thereafter, one S.Pandian had filed OS.No.7 of 92 before the Deputy Commissioner, Madras, under Section 63(b) of the Act and the same was dismissed, as withdrawn with a liberty to file a fresh application. The application had been called for by the Assistant Commissioner in his proceedings in RC.3767/1992/B2, dated 18.05.1992 for the appointment of non-hereditary Trustees to the Plaintiff Temple. Against the said notice, a revision petition had been filed by S.Pandian under Section 21 of the Act before the Commissioner in R.P.No.30/92 and the same was allowed on 7.9.1993. The said S.Pandian had filed an application under Section 63(b) of the Act before the Commissioner, Chennai in O.A.No.5/2002, impleading V.Chachithanantha Pillai and S.Sundaramurthy as the respondents. Against the said notice, a revision petition had been filed by S.Pandian under Section 21 of the Act before the Commissioner in R.P.No.30/92 and the same was allowed on 7.9.1993. The said S.Pandian had filed an application under Section 63(b) of the Act before the Commissioner, Chennai in O.A.No.5/2002, impleading V.Chachithanantha Pillai and S.Sundaramurthy as the respondents. The said application was also dismissed as withdrawn with a liberty to file fresh Original Application on 15.03.2006. The said V.Chachithanantha Pillai had filed the Writ Petitions in WP.No.809 of 2009 and WP.No.1587 of 2009, against the fit person order, till the disposal of the appeal filed under Section 69 of the Act before the Commissioner against the order dated 29.10.2008 made in O.A.No.8 of 2008. WP.No.681 was dismissed on 22.4.2009 as not pressed and the WP.Nos.809 and 1587 of 2009 were disposed of on 22.04.2009, with a direction to the 1st Respondent Commissioner to dispose of the appeal, dated 12.12.2008 within a period of three months and that until the appeal is disposed of, the impugned order shall not be enforced. The annual assessable income of the plaint Temple for Fasli 1417 is Rs.14,92,309/-. c) Now the very same persons have filed the present suit, suppressing all the above facts for declaring the Temple as a Denomination one, by invoking a new theory. The plaint Temple is not a religious Institution. There were earlier several litigations, regarding the administration of the Temple and nobody had established that the Temple was constructed by any particular person or family member. In the judgement in OS.No.120 of 1997, it had been observed that in OS.No.503 of 1859, it was held that 24 persons mentioned in the plaint were the Trustees of these Temples and the decree for injunction was granted against the Defendants, who are the villagers of Thirumullaivoyal. Thereafter, again in the year 1889, there was a dispute between the Trustees of the Temple and the Villagers and once again a suit in OS.No.516 of 1989 was filed by one Govindapillai and 23 others, against 25 persons, who were the members of that community and the suit also was for permanent injunction and for damages. d) In the judgement in OS.No.516 of 1989, it was held that the Plaintiff was the Dharmakartha of the Temple and they were entitled to a permanent injunction. This finding was upheld by the Appellate Court also. d) In the judgement in OS.No.516 of 1989, it was held that the Plaintiff was the Dharmakartha of the Temple and they were entitled to a permanent injunction. This finding was upheld by the Appellate Court also. It is made clear from Ex.A4 that Vadivelu, son of Munusamy Pillai was not the hereditary Trustee and he was nominated as the Trustee by Govinda Pillai only in consideration of the services rendered by him and his father. As a matter of fact, Munusamy Pillai, father of Vadivelu Pillai executed a gift deed, Ex.A5 on 25.11.1903 in favour of the Trustees of the suit Temple. Even, according to the documents of the Plaintiffs, the said Munusamy Pillai could not have been a hereditary Trustee of the suit Temple. Therefore, Plaintiffs 3 to 6 cannot claim themselves to be the hereditary Trustees. When the Assistant Commissioner called for applications for appointment of the Trustees in the year 1970, the Plaintiff and Shanmughasundaram filed an application in OA.No.34 of 1970 before the Deputy Commissioner not to appoint non hereditary Trustees for the suit Temple. e) From the above observations of the Civil Courts in various cases, the Plaintiffs had failed to establish their claim that their family was in management either as Hereditary Trustees or in any other capacity and further the establishment of the Temple by the forefathers of the Plaintiffs has also not been proved in the suits. Further, the averment that the Plaintiff's Temple belongs to Thiruneelakanda Marabinar, Shanmughananapuram or Kosapet Samuthayam of Kuyavars is not true. In fact, there is no separate category or class of people, having special form of worship. The Temple is under the control of the Department for more than 40 years. f) The Plaintiffs conveniently suppressed the earlier litigations in this regard. One of the Plaintiffs, namely, Sachithanandham Pillai had in OA.No.34 of 1970 and it was dismissed on 02.11.1973 and the appeal preferred against the above order in in AP.94 of 1975 was also dismissed on 14.10.1976. Further, the suit OS.120 of 1977 against the appeal petition order was also dismissed on 31.3.1978. The appeal is AS.1091 of 1978 filed before the High Court, Madras was also dismissed on 24.11.1983 and the said order became final. Further, the suit OS.120 of 1977 against the appeal petition order was also dismissed on 31.3.1978. The appeal is AS.1091 of 1978 filed before the High Court, Madras was also dismissed on 24.11.1983 and the said order became final. Further, in the common order passed by this Court in WP.No.809 of 2009 and WP.No.1587 of 2009, dated 22.4.2009, this Court had directed the Commissioner, to pass final orders in the Appeal petition filed by the Plaintiff on the request of the counsel of the writ petitions and further directed not to enforce the impugned order till the disposal of the appeal. g) The Temple is brought under the control of the Department for more than 40 years and it has been published under Section 46(ii) of the Act based on the annual income of the Temple. The person in management periodically paying contribution and audit fees levied by the Department from time to time. Hundials were installed in the Temple and opened before the Department officials periodically after getting the permission from the Joint Commissioner, HR & CE Department, Chennai. The Joint Commissioner has also sanctioned the budget for both income and expenditure of the Temple and the Audit Officials of the department have audited the accounts of the Temple periodically. Hence, the Plaintiff is not entitled to claim permanent injunction, against the Department. h) Admittedly, the Plaintiffs have filed another application before the Joint Commissioner for declaration under Section 63(b) of the Act and the same had been dismissed on 29.10.2008 and the appeal filed against the said order before the Commissioner, HR & CE in AP.20 of 2009 is pending. There is no cause of action arose in the suit. In such circumstances, the suit is liable to be dismissed. 5. On the pleadings of the parties, issues were framed by the Trial Court. On the side of the Plaintiff, Ex.A1 to Ex.A40 were marked and PW.1 and PW.2 were examined. On the side of the Defendant, DW.1 was examined. The Trial Court had dismissed the suit. Aggrieved against the same, this Appeal Suit has been filed by the Plaintiff. 6. This Court heard the submissions of the learned counsel on either side. 7. The learned counsel for the Appellant has submitted that the Plaintiff Temple is under the management of the present Trustees and it is a private Temple. The Temple belongs to Kuyavar Community. Aggrieved against the same, this Appeal Suit has been filed by the Plaintiff. 6. This Court heard the submissions of the learned counsel on either side. 7. The learned counsel for the Appellant has submitted that the Plaintiff Temple is under the management of the present Trustees and it is a private Temple. The Temple belongs to Kuyavar Community. Lands were given to the Temple by the Community People. Only the said Community Trustees are in charge of the Temple and administering it. Public are also worshipping. In the year 1859, the rights of the founders were established and it was concluded that the Plaintiff Temple is a Denomination Temple and it has not gone to the Respondent Department. The learned counsel would further submit that for the first time, the Appellant approached the Court for declaration, but the Trial Court held that the suit is hit by the principles of resjudicata and the suit is not barred by limitation and hence, he would pray for allowing this appeal. 8. The learned counsel for the Appellant would rely on the following decisions:- i. In 1958 1 MLJ 109 SC (Sri Venkataramana Devaru and Others Vs State of Mysore and Others), it was held as under:- “The right of a religious Denomination to manage its own affairs in matters of religion guaranteed under Article 26(b) of the Constitution of India is subject to and can be controlled by, a law protected by Article 25(2)(b), throwing open a Hindu Public Temple to all classes and sections of Hindus and Section 3 of the Madras Temple Entry Authorization is a law protected by Article 25(2)(b) of the Constitution of India.” ii. In 1971 1 MLJ 422 (The Deputy Commissioner for Hindu Religious and Charitable Endowment Board and Others Vs K.Sidhdhivinayaga Mudaliar), it was held as under:- “It is clear from the above decision that it is possible to acquire by prescription trusteeship of a Temple with power to appoint a successor. In this case, there can be no doubt that by long lapse of time the Nattamaikars of the Sengunthar Community have acquired prescriptive title to manage the suit Temples. For the foregoing reasons, the finding of the lower Court that the Plaintiff is the hereditary trustee of the suit Temples must be upheld.” iii. In this case, there can be no doubt that by long lapse of time the Nattamaikars of the Sengunthar Community have acquired prescriptive title to manage the suit Temples. For the foregoing reasons, the finding of the lower Court that the Plaintiff is the hereditary trustee of the suit Temples must be upheld.” iii. In 1980 5 MLJ 358 (Tamarakulam Vellala Samudhayam, Arya Kulasekhara Nangai Amman Temple Trustee, Subramania Pillai Vs The State of Tamil Nadu and Others), it was held as under:- “Even a Denomination Temple, so long as it is not a private one would be liable to the contribution and the audit fee. Therefore, except in the matter of declaration and any relief in consequence no other relief can be granted to the Plaintiff.” iv. In 2014 1 MLJ 622 SC (Subramanian Swamy Vs State of Tamil Nadu and Others), it was held as under:- “Even if the management of a Temple is taken over to remedy the evil, the management must be handed over to the person concerned immediately after the evil stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived.” v. In 2017 5 MLJ 288 (V.A.Kandasamy Mudaliar and Others Vs The Commissioner, Hindu Religious and Charitable Endowments, Madras), it was held as under:- “In every Hindu Temple, right to worship granted to not just every Hindu, but to every human being, however, right to manage or administer Temple exclusively by three named communities upheld – judgement and decree of the Trial Court set aside – appeal allowed.” 9. The learned counsel for the Respondent would submit that a public religious Institution is defined under Section 6(2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act and that for the past 40 years, it is under the control of the HR&CE Department and that the Appellant had initiated several proceedings and having failed in all their attempts, now they come forward with the same set of facts, by adding one more prayer for declaration and that the public have made voluntary contribution to the Temple. The learned counsel would further submit that they have filed a petition under Section 63(b) of the Act and the same was dismissed and that the suit is barred by limitation and hit by the principles of resjudicata and that the Trial Court, after perusal of the entire evidence, came to the proper conclusion and hence, no interference is warranted and he would pray for dismissal of this appeal. 10. This Court considered the submissions of the learned counsel on either side and also perused the materials available on record. 11. PW.1 had deposed that the Plaintiff Temple is, at present, under the Management of the Trustees and the Plaintiff Temple belonged to Thiruneelakanda Marabinar, Shanmugananapuram or Kosapet Samuthayam of Kuyavars. The suit Temple was constructed by the forefathers about more than 200 years ago. The properties were endowed to the Temple by the grand father Munusamy Pillai. At present, this Temple is under the Management by the present Trustees. Before that, their forefathers were the descendants of 24 families of the Kuyavar Community residing in and around Kundrathur and Shanmugananapuram of Kosapet area. They established the statutes and abishegam was also done. 12. PW.1 had further deposed that the Defendant has started to interfere with the management of the Temple without knowing the rights of the Trustees of the Temple. They filed an application before the Joint Commissioner, seeking recognition of the hereditary trustees under Section 63(b) of the Act and that petition was dismissed. Aggrieved over the dismissal, they filed an appeal before the Commissioner in AP.No.20 of 2009. Pending the appeal, the Defendant appointed a fit person to be in charge of the Plaintiff Temple. This was challenged by way of two Writ petitions. That WPs were disposed with certain directions. He had further deposed that the Plaintiff Temple belongs to Thiruneelakanda Marabinar, residing in and around Shanmugananapuram or Kosapet, who constituted a religious Denomination Temple and the HR&CE Department has no right to interfere with their right and administration of the Temple. 13. PW.1 had further deposed that in 1859, a suit was initiated in OS.No.503 of 1859. In that case, it was concluded that the Plaintiff Temple is a Denomination Temple. 13. PW.1 had further deposed that in 1859, a suit was initiated in OS.No.503 of 1859. In that case, it was concluded that the Plaintiff Temple is a Denomination Temple. In 1926, an agreement was entered into between the founders and the poojaris and in that agreement, it was established that the Temple in question is not only managed by the forefathers of the present trustees, but also it is a Denomination Temple. The Temple was recognised as a Denomination Temple even as early as 1763. Hence, he filed the suit for declaration and injunction. 14. DW.1 had deposed that the Plaintiff Temple is a public religious Institution as defined under Section 6(20) of the Act and it is not a Denomination Temple coming within the meaning of Article 26 of the Constitution of India. The Plaintiff and their men have filed many applications before the authorities under the Act for declaration that the Office of the Trusteeship is a hereditary and subsequent suits were also filed and they failed in their attempts. He had further deposed that the Sub Judge dismissed the suit on 31.03.1978, holding that the order of the Commissioner is legal and valid. The Plaintiff took up the matter to the Honourable High Court in AS.No.1091 of 1978 and it was also dismissed and no appeal was filed against the same. He had further deposed that suppressing the facts that the matter was already decided by the Department and confirmed by the High Court of Madras and that it was also held that the Office of the Trusteeship is non hereditary in nature, once again they filed a petition under Section 63(b) of the Act in OA.No.8 of 2006 and that petition was dismissed. After dismissal of the original petition, pending the appointment of non hereditary trustees, the Commissioner had appointed a fit person. That appointment was challenged in WP.No.809 of 2009 and 1587 of 2009 and that was disposed of with directions and the appeal has been numbered as AP.No.20 of 2009. The annual assessable income of the suit Temple for fasli year 1417 is Rs.14,92,309/-. This Temple is now under the control of the Department for more than 40 years. That appointment was challenged in WP.No.809 of 2009 and 1587 of 2009 and that was disposed of with directions and the appeal has been numbered as AP.No.20 of 2009. The annual assessable income of the suit Temple for fasli year 1417 is Rs.14,92,309/-. This Temple is now under the control of the Department for more than 40 years. Suppressing the earlier litigations in this regard before this Court, the Plaintiff are not entitled to any relief and there is no cause of auction for the suit and it is barred by the principles of resjudicata. 15. In the written statement, the Defendant has mentioned so many proceedings and suits and for that, no reply statement has been filed. Even in the cross examination of DW.1, they never asked any question regarding the earlier proceedings and the suits. The Plaintiff has to prove their case and they cannot shift the burden on the Defendant. For the past 40 years, they filed the proceedings and the suits only for declaring that they are the hereditary trustees. It is clearly proved that having filed so many proceedings and suits for declaring that they are the hereditary trustees and having failed in all their attempts, they cannot plead that the Temple is a Denomination Temple and are estopped from claiming the present relief. 16. PW.1 in the cross examination had deposed that “TAMIL” 17. PW.2 in his evidence deposed that “TAMIL” 18. From the above, it is proved that the other people of all castes are also worshipping in the Plaintiff Temple. For the purpose of invoking Article 26 of the Constitution of India, the Plaintiff has to prove two facts, namely, (i) they alone had established the Temple and (ii) they maintain the Temple. In this case, the Plaintiff has not proved these two facts. 19. In 2003 3 CTC 690 (Nallor Marthandam Vellalar and others Vs. The Commissioner, Hindu Religious and Charitable Endowment), the Honourable Supreme Court has held as follows:- “It is settled position in law, having regard to the various decisions of this Court that the words "religious Denomination" take their colour from the word `religion'. 19. In 2003 3 CTC 690 (Nallor Marthandam Vellalar and others Vs. The Commissioner, Hindu Religious and Charitable Endowment), the Honourable Supreme Court has held as follows:- “It is settled position in law, having regard to the various decisions of this Court that the words "religious Denomination" take their colour from the word `religion'. The expression "religious Denomination" must satisfy three requirements – (1) it must be collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being, i.e., a common faith; (2) a common organisation; and (3) designation of a distinctive name. It necessarily follows that the common faith of the community should be based on religion and in that they should have common religious tenets and the basic cord which connects them, should be religion and not merely considerations of caste or community or societal status.... Further, it was necessary for the plaintiffs to establish their claim in respect of the Temple that the said Denomination group has established and is maintaining and administering the suit Temple to take the protection of Article 26 of the Constitution and Section 107 of the Act. High Court found, after meticulous and careful consideration of material that there was no evidence to prove that the members of the Vellala Community have been shown to have any common religious tenets peculiar to themselves other than those who are common to the entire Hindu community..... In the light of finding of fact recorded by the first appellate court as affirmed by the High Court, the argument sought to be made that the Act gets attracted only to sectarian Temples which are public and not to sectarian Temples which are private in view of Sections 1(3), 6(18) and 6(20), do not help the appellants when there is a finding that it is not a private Temple. Added to this, the Temple was taken under the control of the Department in the year 1965. That was not challenged by the appellants.” 20. To prove that the Plaintiff Temple is a religious Denomination, the Plaintiff must satisfy three requirements, namely, (1) it must be collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being, i.e., a common faith; (2) a common organisation; and (3) designation of a distinctive name. To prove that the Plaintiff Temple is a religious Denomination, the Plaintiff must satisfy three requirements, namely, (1) it must be collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being, i.e., a common faith; (2) a common organisation; and (3) designation of a distinctive name. But, the Plaintiff has failed to prove those requirements. 21. In this case, the Plaintiff, having admitted that the public are worshipping in the Temple and the jurisdiction of the Defendant Department, by filing statutory applications and suits, is estopped from taking a different stand by pleading Denomination Temple. On a perusal of Ex.A16, Ex.A27 and Ex.A28, it is revealed that in the Plaintiff Temple, hundials are also installed and so, it is proved that contribution from the public are also being made. Hence, the court below came to the proper conclusion and dismissed the suit and no interference is warranted by this Court. Accordingly, this appeal is liable to be dismissed. 22. In fine, this Appeal Suit is dismissed. No costs.