Transposition of commissioner as appellate whether necessary.

K.M. Natarajan, J.

This letters patent appeal is filed by the unsuccessful defendants against the judgment and decree passed by this court in A.S.No.730 of 1977, confirming judgment and decree passed by the City Civil Court, Madras, in O.S.No.547 of 1965.

2. The facts which are necessary for the disposal of this appeal can be briefly stated follow: For the sake of convenience the array of parties in the trial court is adopted appeal. The plaintiff Sri Siddha Raj Manicka Prabhu,Huminabad Mysore State, filed under Sec.70 of the Hindu Religious and Charitable Endowments Act to set aside the passed by the fourth defendant, Commissioner, Hindu Religious and Charitable Endowments, Madras. The case of the plaintiff is that the suit temple, Sri Kamala Kameswari, Tri Madras, was founded by late Raja Eswar-dos Dayavanth Bahadur and it was property. On his death, his son and guardian became the owners of the temple and were adjudicated as insolvents in I.P.No.50 of 1924. Their estate including the above temple and the right to manage the same came to be vested in the official Assignee, One of the creditors filed C.S.No.545 of 1926 on the file of the High Court of Madras the insolvents and others and a consent decree was passed in the suit and by virtue same, the ownership, possession and management of the temple was transferred predecessor Guru of the plaintiff temple. The plaintiff who had succeeded his predecessor was aged 7 years at the time of his succession. Since he was a minor his guardian O.A.No.76 of 1954 before the Deputy Commissioner for establishing the minor hereditary trusteeship of the suit temple. The Deputy Commissioner allowed O.A.No.76 1954. The necessity for filing the said petition was the fourth defendant appointed defendants 1 to 3 as non-hereditary trustees of the suit temple and taking advantage their appointment, they had installed idols of a different section. On appeal filed by trustees, defendants 1 to 3, before the commissioner, the said order was set Thereupon the guardian filed O.S.No.557 of 1955 on the file of the City Civil Court, for setting aside the order of the Commissioner. The said suit was dismissed. There appeal to the High Court, Madras, in A.S.No.14 of 1960. During the pendency of the minor who had attained majority by that time, filed C.M.P.No.5405 of 1962 withdrawal of the suit on the ground that the claim of hereditary trusteeship was made mistake as the temple was his private temple. The said C.M.P. was dismissed subsequently the appeal against the order in the said C.M.P. was also dismissed. During pendency of the appeal, the spiritual guru of the plaintiff temple filed O.A.No.38 of the file of the Deputy Commissioner for declaring the temple to be a private temple. The application was dismissed by the Deputy Commissioner and it was confirmed Commissioner in the appeal. It was only to set aside the said order of the Commissioner, present suit was filed under Section 70 of the Hindu Religious and Charitable Endowments Act, Act 22 of 1959, hereinafter referred to “the Act”, for setting aside the order Commissioner, the fourth respondent. Defendents 5, 6 and 7 are the present appointed by the fourth defendant. Hence they were impleaded in the suit.

3. The suit was resisted by defendants, and in the written statement filed by defendants and 2, which was adopted by defendants 5, 6 and 7, it was contended that the having earlier claimed hereditary trusteeship, is estopped from claiming now that the suit temple is a private temple. Further, the temple or its management did not vest in the Official Assignee and had no right to transfer the management and possession to anybody. The agent of plaintiff temple was never in possession and management of the temple. The suit temple was abandoned and the residents of the street, renovated it in 1946 and arranged worship. Thereupon, the Hindu Religious and Charitable Endowment Department appointed trustees for the management. The plaintiff cann