K.S. Radhakrishnan, J.

Whether the suit filed under Sec. 62 (2) of the Madras Hindu Religious and Charitable Endowments Act, 1951, Act 19 of 1951 (for short “the Act”) would tantamount to an appeal filed against the order passed by the commissioner under Sec. 61 of the Act is inter alia the question that has come up for consideration in this case?

2. Appellants herein were defendants 1 to 5 in O.S.No. 107 of 1999. They filed O.S. No. 1 of 1990 before the Deputy Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, filed application for a declaration that Sree. Kannenkavu Bhagavathy temple is a public religious institution within the meaning of Sec. 57 (a) of the Act and also for framing a scheme for administration of the temple. The Deputy Commissioner by his order dated 5.1.1993 allowed the application on the following reasoning.

“Sree Kannenkavu Bhagavathy temple is an ancient temple and its trusteeship vest with Azhuvancherry Mana. It is true that properties were given out to the temple and this property does not yield any income. The temple is one run on mainly on donations received from the public and the poojas and festivals are mainly performed through public participation and donation. The public used to attend various duties in connection with the festival of the temple. Moreover the plaintiff in O.S. 67/82 of the Sub Court, Tirur viz. the trustee of the temple has stated in that original suit that the public’s right is only limited to worship the deity. So as admitted the public has got right to worship the deity. The evidences given by the witnesses also prove that the public has a right to worship in the temple and as a matter of right they attend certain duties in connection with the festival of the temple. All this show that this temple has got all the characteristics of a temple having public nature.”

On the above reasoning the Deputy Commissioner declared that the temple is a public religious institution.

3. First respondent preferred an appeal to the Commissioner under Sec. 61 of the Act. The Commissioner rejected the appeal and held as follows:

“There is no dispute over the ownership and Oorayama right of this temple which are vested with the Azhavancherry Mana. The temple is seen to have no income of its own and hence it is managed with the income received from the worshippers of the temple, by way of vazhipad offerings contribution etc. Though the temple has some properties, no income is derived from it. One well, one Kalyanamandapam, one Kalivilakku, one Aalthara etc. Were constructed for the temple solely with the contributed money of the worshippers of the temple and the public. The Devaswom has no direct role in these construction works. The public and the worshippers have done these constructions and handed them over to the temple as presentation on behalf of the worshippers of the temple. These facts are seen to have been admitted by Sri. K.T. Raghavan Nair, who is the power of attorney of the appellant and first witness; before; the Deputy Commissioner in O.A. 1/90. This evidence adduced by the power of attorney of the appellant points to the fact that this temple is a public religious institution as has been declared by the Deputy Commissioner.

Aggrieved by the said order first respondent filed O.S. No. 107 of 1999 under Sec. 62 of the Act in the court of the Subordinate Judge, Tirur. The Sub Court decreed the suit and the orders passed by the Deputy Commissioner and the Commissioner were set aside. The Sub Court while holding so took the view that it cannot exercise the jurisdiction of a court of appeal against the order of the Commissioner and cannot appreciate the evidence adduced before the Deputy Commissioner and enter into a finding regarding the character of the temple on the basis of that evidence. The court took the view that it has to independently appreciate the evidence adduced in the suit and to decide the issue whether the temple is a private or a pu