Suit barred by res judicata.

P. Shanmugam, J.

1. The defendant in the suit is the appellant. In the plaint filed under Section 70 of the Tamil Nadu Hindu Religious Act 22/59, his prayer is for cancelling the orders of the Deputy Commissioner and Commissioner of H.R. & C.E. dated 20.5.78 and 30.8.80 respectively and for declaring that the temple is a private temple. The suit was decreed as prayed for. The present appeal is filed by the Commissioner, H.R.& C.E.

2. The brief facts of the case are as follows:

The parties are referred to as per the ranking in the trial Court.

The plaintiff, namely Arulmighu Arasadi Karpaga Vinayagar Temple, represented by its hereditary Trustee C.S. Mani Mudaliar, has filed an application O.A. No.21 of 1976 under Section 63 (a) of Tamil Nadu H.R. & C.E. Act for a declaration that the temple in question is not a temple as defined under the Act before the Deputy Commissioner, who by an order dated 20.5.78, held that the temple is a public temple. According to him, the decision rendered in C.S.320/1912 dated 21.8.1914 has become final in establishing the public character of the temple and observed that the petition is only to prolong the misappropriation of the income of temple properties and ultimately dismissed the application, directing the proper authorities to take effective action to prevent further misappropriation of the temple funds and to make suitable arrangements by way of appointing an Executive Officer to set right the administration.

3. As against the order of the Deputy Commissioner, C.S. Mani Mudaliar filed an appeal in A.P.NO.30 of 1979 before the Commissioner, Hindu Religious Charitable Endowment Administration, who by order dated 30.8.1998, confirmed the order of the Deputy Commissioner and dismissed the appeal. The present suit in O.S.NO.1677 of 1981 came to be filed under Section 70 of the Act for the relief referred to above.

4. Sri Arasadi Karpaga Vinayagar Temple (hereinafter referred to as suit temple) came into existence in or about the year 1850. The deity of God Vinayagar was enshrined in the temple and there were also deities of God Subramania and others. The temple is said to have been originally constructed and dedicated by the ancestors of Chinnakavaram Solayappa Mudaliar. The temple is situated in the premises at No. 120, Veeraraghava Mudali Street, Triplicane, Madras. In order to make proper management of the temple, a Deed of Indenture was entered into on 20.4.1911 between Chinnakavanam Solayappa Mudaliar, son of Chinnakavanam Arunagiri Mudaliar and Chinnakavanam Thathulinga Mualiar, son of the said Chinnakavanam Sollayappa Mudaliar. As per this deed, all the estate, right and title which vested with the Chinnakavanam Solayappa Mudaliar shall devolve upon Chinnakavanam Thathulinga Mudaliar as Dharmakartha of the Trustee of the said temple.

5. In reference to this temple, a suit in O.S.No.320 of 1912 was filed before the High Court of Judicature at Madras on the Original Side against C.Thathulinga Mudaliar praying for a declaration to declare that the plaint Foundation is a public religious trust, that the defendant has no right to be Dharmakartha or Trustee of the said temple to finalise a scheme for election or appointment of Trustees of the said temple and for the management and administration of the affairs of the said temple.

6. The defendant Thathulinga Mudaliar in paragraph 7 of his written statement claimed to be the Dharmakartha, besides claiming a hereditary title as per the deed executed by his father dated 20.4.1911. He had specifically pleaded as follows :

"The defendant denies all the allegations set out in the plaint that the temple is a private Trust. On the other hand, the defendant even during the lifetime of his father was always anxious to safeguard the interest of the temple as & public place of worship." (emphasis added)

7. The suit was decreed holding that the defendant as eldest member of the family was entitled to be Dharmakartha and that the Trustees