Judgment

GROVER, J. :- This is an appeal by certificate from a judgment of the Madras High Court.

2. The appellant s predecessor in office T. G. Kuppuswamy Iyer filed on April 14, 1950 a suit in the District Court, Madurai, under S. 84 (2) of the Madras Hindu Religious Endowments Act, (Act II of 1927) against the respondent and two other persons who are not parties to the appeal for a declaration that the suit Mandapam was a private Mandapam i.e. family property of Thoguluva Thirumalier and was not a temple covered by the provisions of the aforesaid Act. This suit had to be instituted because the authorities appointed under the Madras Act II of 1927 had held that the premises No. 29 South Masi Street, Madurai wherein the idol of Sri Srinivasaparumal and certain other idols were located was a temple within the meaning of the said Act. The District Judge decreed the suit in favour of the appellant but the High Court, on appeal, reversed that judgment and passed a decree holding that the premises constituted a temple. The appellant thereupon filed a petition for leave to appeal to this court but the High Court refused to grant the certificate. The matter was brought to this Court. By a judgment which is reported in T. D. Gopalan v. Commr. of Hindu Religious & Charitable Endowments, Madras, 1966 SCR (Supp) 154 this court directed that the subject matter of the dispute should be ascertained with reference to the claim made by the plaintiff in his plaint. Consequently the valuation of the property should have been done according to the claim made in the plaint, namely, that the property was private property of the family capable of alienation. Thereafter the High Court granted a certificate on determination of the value of the suit property.

3. The only question which had to be decided by the District Court and the High Court was whether the property in dispute was a private Mandapam and not a public temple. The District Judge appointed a Commissioner to submit a report regarding the physical features of the property. The Commissioner reported that the suit premises was a temple and in front of it there was a Garbah Graha on either side. There were two stone idols called Dwarabalakas. The implements necessary for offering puja were also found by the Commissioner. But there was no Dwajasthamba, Balipeeda or Gopuram.

4. There is no dispute that the premises where the temple is situated originally belonged to one Kuppiyan. A decree was obtained by Tirumalaiyyan against Kuppiyan and in execution of that decree the property was put to sale by public auction. It was purchased by Tirumalaiyyan in 1885 (vide Ext. B-1 - extract from the suit register dated 14-1-1885). The title to the property thus vested in Tirumalaiyyan and the members of the family who later on came to be known as Thoguluva family.

5. The case laid in the plaint was that the Mandapam came to be constructed on the suit property by the members of that family which belonged to what is known as the Saurashtra community in Madurai town. It was a private mandapam which was in the exclusive and absolute control of the said family and worship was performed there for the spiritual benefit of the members of the Thoguluva Tirumalaiyyam family. It is common ground that at all times the management and control over the Mandapam was with some or other members of the Thoguluva family. In 1932 or 1933 some shops in the eastern and western side of the Mandapam were constructed for which the Municipality levied a tax which had been paid by the members of the Thoguluva family which was in the management of the temple.

6. The learned District Judge s approach to the appreciation of the evidence, oral as well as documentary, was on the principle that once the private character of the temple was established more strong proof was necessary to hold that the temple was subsequently dedicated to the public; (Babu Bhagwan Din v. Gir Har Saroop, 67 Ind App. 1 He considered the evidence produced by the part