Characteristics of a Samadhi dedicated.

S. Swamikkannu, J.

1. This is an appeal preferred by the sixth defendant-Commissioner for Hindu Religious and Charitable Endowments, Madras, against the judgment ' and decree dated 12-11-1975 in O.S.No. 309 of 1973 on the file of the Court of the learned Subordinate Judge, Dindigul, decreeing the suit, as prayed for with costs, filed by the first respondent herein - Shri. S. Krishnaswami Swamigal, claiming himself to be the Hereditary Trustee, for cancellation of the order of the appellant herein passed in A.P. No. 35 of 1973 in which it was held that the suit institution is a 'public temple' and not a private Samadhi as claimed by the first respondent herein, for declaration that this institution is a private Samadhi with the first respondent herein as its head and hereditary trustee, for a permanent injunction restraining the appellant herein and respondents 2 to 6 herein from interfering with the first respondent's peaceful enjoyment of the said institution viz., Guruswamy Samathi, Kottakadu, Odukkam, Adiyanoothu Village, Dindigul Taluk, and its properties.

2. The case, as set out in the plaint instituted by the first respondent herein, is briefly as follows:

3. The institution is called "Guruswami Samadhi", Kottakadu, Odukkam, Adiyanoothu village, Dindigul Taluk, is a Private Samadhi. The property over which the Samadhi exists was originally granted by the Karnatie King, several centuries ago. The said grant was confirmed by the subsequent Rulers. Daily pooja and annual guru pooja are performed to the Samadhi. So his Samadhi is called 'Gurusamy Samadhi. After Gurusamy Paradeshi, his 'Sishya' Arunachala Parades! became its head, and after him, his 'Sishya' Dandayuthapani Parades! became the head of the institution and he was also a trustee. Likewise the successive Sishyas, Vallinayaka Paradesi, Arumugaswamy Paradesi and Madhava Desika Swamigal became the heads of the suit institution, and after the attainment of 'Mukthi' by Madhava Desikaswamigai, which was in the year 1968, his 'Sishya' the present plaintiff - first respondent herein became the hereditary trustee and head of this institution, and since then he had been functioning as such. The Samadhi is situated in Survey No. 585 which is a Government poramboke. The Samadhi has been treated as such all through, and it can, in no event, be called a 'Temple' much less a 'Public temple' as it does not bear all or any of the characteristics of a 'Public temple'. While so, the Deputy Commissioner, Hindu Religious and Charitable Endowments, Madurai, instituted proceedings for appointment of trustees and the first respondent's attempts to prevent his action became of no avail. The defendants No. 1 to 5 of respondents 2 to 6 herein were appointed as trustees of this institution by the said authority, who had no right to do so, and the first respondent's appeal to the appellant herein also proved futile. Taking advantage of the confirmation order passed by 6th defendant-appellant herein, the so-called respondent's peaceful possession and management of the suit institution is denied and so the present suit has been' filed by the first respondent herein before the lower Court under Section 70 of the Hindu Religious and Charitable Endowment Act (Madras Act 22 of 1959), hereinafter called the 'Act', challenging the validity of the order of the appellant herein.

4. The first defendant/second respondent herein in his written statement which has been adopted by defendants 2 to 5, namely, respondents 3 to 6 herein, would contend, inter alia, that the suit institution is a 'Public' temple and not a 'Samadhi' pure and simple, that all the Hindu community people in Adiyanoothu village used to congregate in this place on several auspicious occasions and offer religious worship to the idols there openly and as of right without any let or hindrance. The head of this institution used to be appointed by the villagers of Adiyanoothu in a congregation, and so the claim of hereditaryship by the