Judgment

RAGHUBAR DAYAL, J. : This is an appeal on a certificate granted by the High Court of Andhra Pradesh, against the judgment and order of the High Court reversing the judgment and order of the District Judge, Vizagapatam, holding that the place of worship in suit was not a temple as defined in the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927), hereinafter called the Act.

2. On March 28, 1947, the Board of Commissioners for Hindu Religious and Charitable Endowments, Madras, held the institution in suit to be a temple as defined in the Act. The appellants, thereafter, filed a petition under S. 84(2) of the Act, in the Court of the District Judge, Vizagapatam, and prayed for the setting aside of the order of the Board. They alleged that the institution known as the Poohari Fakir Sadvarthy, at Bondilipuram, Chicacole, a long-standing institution, was started by one Malukdas Bavajee, some time during the reign of the Moghul Emperor, Aurangazeb. The Emperor, in recognition of the Bavajee s piety and devotion to God, made certain grants to him with the object and purpose of enabling him to maintain himself and carry on the distribution of Sadavarthi to Fakirs and Sadbus and to pray to God for the prosperity of the Empire and the Emperor, according to what was stated in the well-known historical works like Bhakthamala by Maharaja Raghunadha Singh Deo of Rewa.

3. The institution flourished and continues up to this day. The original plaintiff No.2, Rajaram Das Bavajee, was the ninth in succession from the founder Malukdas Bavajee. He died during the pendency of the proceedings and is now represented by appellant No.2, Mahant Gangaram Das Bavajee. Sithaldas Bavajee, the sixth head of the institution who lived in the first half of the Nineteenth Century, built a temple and installed therein certain idols for his private worship. The shrine was an adjunct of the institution Poohari Fakir Sadavarthi. It is alleged to be a private temple known as Jagannadhaswami temple, Balaga, and is meant for the worship of the Mahant and his disciple, one of whom conducts the daily worship.

4. The income from the various properties granted to Malukdas Bavajee or his successors had been regularly utilised for the maintenance of the head of the institution and for distributing charities to the sadhus and pilgrims passing through Balaga. A part of the Income was, however, spent on the expenses of the worship in the temple and the incidental expenses connected with it.

5. The respondent Board denied that Jagannadhaswami temple was a private place of worship, that the public had no access to it without the permission of the Bavajee an alleged that the temple possessed all the features of a place of public religious worship and was dedicated to or for the benefit of or used as of right by the Hindu community as a place of religious worship.

6. The appellants examind five witnesses including plaintiff No. 2, in support of their case. The respondent examined one witness. The plaintiffs also filed a number of documents. The respondent filed a few documents which included the Board s order dated March 28,1947, and its enclosure.

7. The learned District Judge concluded, from the evidence, that Jagannadhaswami temple was not a temple as defined in the Act, it being a private temple existing for the benefit of the appellants only. He therefore set aside the impugned order of the Board. On appeal, High Court came to a different conclusion and allowed the appeal. It mainly relied on the entries in the Inam registers with respect to the institution and on the following facts which it considered to be established :

(i) the temple is a very old temple constructed in or about the year 1750;

(ii) the temple has the structure and polity of a public temple;

(iii) there are utsava vigrahams and vahanams;

(iv) it has a big compound wall with the gate opening into the Chinna Bazaar Road;

(v) regular worship is performed every day at the scheduled time;

(vi) there