Judgment

GOSWAMI, J.:- This appeal by the defendant in the original suit is by certificate granted by the High Court of Andhra Pradesh to appeal against the judgment and decree of the said Court of 27th February, 1968. The facts may briefly be stated.

2. The respondent (hereinafter to be described as the plaintiff) is the Tirumalai Tirupathi Devasthanam represented by its executive officer. The plaintiff instituted a suit in the court of the Subordinate Judge, Chittoor, on 10th March, 1961 praying for a declaration that the building known as "Tirumala Tirupathi Devasthanam New Choultry situated within the area of the Municipal Council Tirupathi (hereinafter described as the defendant) bearing assessment No. 5361 of Tirupati Municipality, is exempted from property tax under Section 83 (1)(b) of the Madras District Municipalities Act 1920 (Madras Act V of 1920), briefly the Act, and for directing the defendant to refund the sum of Rupees 22,306.40, the amount of tax so far paid under protest. It appears that the plaintiff paid property tax in respect of this building for several years under protest and without prejudice to its right to file a suit. After the plaintiff failed to get redress from the authorities, the suit was filed. The plaintiff states in the plaint.

"that the said building is a free Devasthanam as choultry intended purely for the convenience of the pilgrims visiting the famous Holy Shrine of Sri Venkateswara Swami at Tirumala and other Devasthanams attached to the plaintiff Devasthanams and is used solely and exclusively for the said purpose and no other.

The plaintiff further, inter alia, avers in para 7 of the plaint as follows -

"The defendant has failed to note and taken into consideration, as it ought to have the fact that the canteen, the firewood stores, the Transport Office, Workshops, Garages, the galvanised Iron Sheet Sheds for parking the transport vehicles, the Railway Booking Office, the Mysore Government Transport Office, the Devasthanams Sanitary Inspector s Office, the Enquiry Office, Garages for cars, shed for water pump, Laundry, Hair-cutting Saloon, the Post Office and Free Medical Dispensary are all located within the schedule mentioned premises only with a view to providing conveniences which the plaintiff is under a statutory obligation to provide to the visiting pilgrims without deriving any rents, returns, profits or other receipts.

The defendant resisted the suit. It denied in the written statement that the building "is an out and out free Choultry . The defendant further avers that

"While pilgrims are accommodated in the ground floor portion of the Choultry free of charge, the rooms in the first floor are rented out to pilgrims and others. Further in the main building, as well as in the other buildings within the compound of the choultry, there are several shops, stalls and offices. There is the canteen, which admittedly caters not only to the pilgrim visitors staying in the choultry but also to the general public. There is a brass vessel shop, a fire wood depot, a Transport Office, a motor workshop with 9 garages, a Railway Booking Room, a Mysore Transport Office Room, the Sanitary Inspector s Office Room, Enquiry Office, 6 garages, (2) residential portions for Superintendent, a water pump shed, a laundry, a barber shop, and a Post Office. It will be seen that the business in several of the above shops and stalls and the amenities provided therein are not solely connected with the purpose of either the choultry or the worship in the temple. The plaintiff is deriving a very large income from the said stalls and shops..... The annual rental value of the building was calculated only after excluding the portions that are being used for the purposes of the free choultry.

3. By consent of parties, a large number of documents were marked as exhibits, and the plaintiff examined only the Superintendent of the New Choultry as the sole witness while the defendant did not adduce any oral evidenc