P.SHANMUGAM, J.

Plaintiff is the appellant. The suit was filed for a declaration that the suit property was only a Samadhi and not a religious institution and for permanent injunction. The suit was dismissed and the appeal is against this judgment and decree.

2. The case of the plaintiff is that the suit property is called Malaikaruppaswami Temple and is a Samadhi of the forefather of the plaintiff, namely Malaiswami; the said Malaiswamy had spiritual powers and became a Yogi and he had been treating the diseases of the villagers; he was worshipping Muneeswaram and Karuppannaswami; he attained Samadhi and was buried at the foot of Bargur Hills and a samadhi was constructed; subsequently, 'Bali Peetam' was constructed and images of Thavasi and Muni were constructed to guard his Tomb; for identification purposes, it is called 'Malaikaruppaswami Temple' and the Samadhi was treated as a sacred place by offering regular Guru Pooja; and therefore, the said Samadhi is not a religious institution. While so, according to the plaintiff, the Assistant Commissioner, Hindu Religious and Charitable Endowments Department appointed defendants 4 to 6 as Trustees for the suit Samadhi, treating it as temple and therefore, it had become necessary for a suit for declaration and permanent injunction.

3. The Hindu Religious and Charitable Endowments Department opposed the relief by filing a written statement inter alia contending that it is factually incorrect to state that the site in dispute is only a Samadhi. According to them, the matter had been concluded against the petitioner in an earlier proceedings initiated as early as in the year 1937 whereby the place was declared as a public temple and in subsequent civil proceedings between the parties in reference to this temple, it was treated as a public religious temple. According to them, the plaintiff has to prove that it is only a Samadhi. They therefore prayed for dismissal of the suit.

4. After considering the exhibits, the documentary and oral evidence, the learned Subordinate Judge came to the conclusion that the plaintiff is not entitled for a permanent injunction and that the suit temple is a public religious temple.

5. Learned counsel Mrs. Hema Sampath appearing on behalf of the appellants inter alia contended that the Sub-court had erred in holding that it is a public temple by an erroneous interpretation and rejecting the documentary and oral evidence. According to her, the appellant was never a consenting party to all the previous proceedings and therefore, the said proceedings are not binding on him. She also states that the existence of the Samadhi in the suit premises is not denied and therefore, the judgment of the learned Subordinate Judge is liable to be set aside.

6. Learned counsel Mr. G. Sukumar, Special Government Pleader appearing on behalf of the Department submitted that the issue is no longer res integra as that the question had already been concluded against the plaintiff and according him, the factual position that the suit premises is a public religious temple requires no further consideration.

7. We have heard the counsel, gone through the records and considered the matter carefully.

8. The fact that the suit premises is located in the forest area of Andiyur Village and is called 'Malaikaruppaswami Koil' is not in dispute. The Commissioner has filed his reports under Exhibits C.1, C.2 and C.3. The reports are dated 19.4.1984 and 17.12.1984. The Commissioner's reports state that the suit temple is a temple consisting of a number of deities. They are referred to as G.1 to G.5 - the figures of Thavaguru daities, G.6 - the deity of Muni and G.7 - Kannimaswamis. There are platforms for these deities and various animal figures are placed adjoining these deities and spears are also installed. It is stated that there are deities of Thavasiappan and Muneeswaran with a height of 8 feet and 3 feet respectively. Besides, Sivalinga, Nandi and Hari figures are drawn. There are