IMPORTANT POINT
Where evidence in regard to foundation of temple is not clearly available, the answers to the questions namely, are the members of the public entitled to take part in offering service and taking darshan in the temple, are the members of the public entitled to take part in the festivals and ceremonies arranged in the temple and are their offerings accepted as a matter of right will establish the character of the temple.

JUDGMENT

Tarun Chatterjee, J. —

1. This appeal is filed against the judgment and order dated 25th of September, 2001 of the High Court of Judicature at Madras whereby the High Court had dismissed the L.P.A. No. 196 of 1996 preferred by the appellants before it.

2. The relevant facts leading to the filing of this appeal as emerging from the case made out by the appellants are narrated in a nutshell for a better understanding and determination of the disputes between the parties:

It is the case of the appellants plaintiffs before the trial court that their ancestor Ellu Iyer, constructed and built three temples, namely, Pillaiyar Temple, Anjaneyaswami Temple and Gopalakrishna temple out of his own funds some time before 1890. The aforesaid temples were throughout treated as private temples of the appellants and were virtually in their management. The members of the public never had any right to offer worship in the temples and the deities were never dedicated to the public. On 18th of March, 1965, the mother of the first appellant had received a letter from three persons alleging that they had been appointed as non-hereditary trustees of the aforementioned temples by the Hindu Religious and Charitable Endowments Board (in short “the Board”), directing the mother of the first appellant to hand over the property and records of the temples. In the same year, the mother of the first appellant filed a Writ Petition being WP No. 1492 of 1965 before the High Court at Madras, praying for quashing the order of the appointment of non-hereditary trustees of the said temples. On 15th of March, 1967, the High Court allowed the Writ Petition directing the mother of the first appellant to file an appropriate application before the Deputy Commissioner of the Board for declaration of the aforesaid temples as the private temples of the family of the appellant. Thereafter, the mother of the appellant filed an application being O.A. No. 28 of 1970 before the Deputy Commissioner of the Board under section 63(a) of the Hindu Religious and Charitable Endowments Act. The said application was dismissed on 1st of October, 1973, and on appeal, the Commissioner of the Board confirmed the said order on 19th of December, 1973. Thereafter, the appellant on 18th of March, 1974, filed a suit for setting aside the order of the Commissioner being O.S. No. 169 of 1974 before the Principal Subordinate Judge, Erode, Tamilnadu. The trial court held the aforesaid temples as public temples. Aggrieved by the judgment and order of the trial court, the appellants preferred first appeal before the Madras High Court being A.S. No. 665 of 1982 on 13th of August, 1982 which was dismissed by the High Court on 21st of June, 1996. Thereafter, the appellants preferred a Letters Patent Appeal being L.P.A. No. 196 of 1996 before the Division Bench of the High Court which dismissed the same. Thus, being aggrieved, the appellants preferred the present appeal, which on grant of leave was heard in the presence of the learned counsel for the parties.

3. We have heard the arguments of the learned counsel appearing on behalf of the parties and perused the materials on record. Having done so, we do not find any reason to interfere with the judgment of the High Court which was based practically on the question of fact arrived at not only by the High Court but also by the trial court. Reasons are as follows :

4. Learned counsel appearing on behalf of the appellants contended that the Board was not empowered under the Madras Hindu Religious and Charitable Endowments Act, 1959 to declare a private temple as a public temple. We are not in agreement with this argument of the learned counsel for the appellants. A perusal of the relevant provisions of the Act would clearly show that there is no bar for the Board to declare a particular temple as a public one. However, the suit that was filed by the appellants which gave rise to filing of this appeal in this Court was for a declaration that the afo