In this Second Appeal, Rajagopala Ayyangar, J. (as he then was) called for a finding. After the receipt of the finding, the Second Appeal was argued before me. Mr. Vedentachari, learned counsel for the appellant, has raised several substantial and important questions of law and I feel that the questions raised by him have to be dealt with and decided before the Second Appeal can be properly disposed of. In view of the fact that the questions raised are substantial questions of law and far reaching importance, I am of opinion that the matter should be heard by a Division Bench. The papers will be placed before my Lord the Chief Justice for directions as to posting the matter before a Division Bench.

The learned Government Pleader wants to prepare a typed set of papers. He is permitted to point out the necessary portions to be typed from the records of the Court to facilitate the preparation of the typed set of papers.

The Second Appeal accordingly came on for hearing before a Division Bench (Jagadisan and Sadasivam, JJ.).

V. Vedantachari, for Appellant.

S. Mohan, The Government Pleader (A. Alagiriswami) and V. Ramaswamy for Respondents.

The Judgment of the Court was delivered by

Jagadisan, J.-

This Second Appeal arises out of the dispute between Sri Kalugachalamurthy Devasthanam, represented by its hereditary trustee, the ex-Zamindar of Ettayapuram on the one hand and the Panchayat Board of Kalugumalai and the State of Madras on the other in respect of patches of lands surrounding-the shrine of Sri Kalugachalamurthy at Kalugumalai village. The Devasthanam filed the suit, O.S. No. 21 of 1952 on the file of the Subordinate Judge’s Court, Tuticorin, against the Panchayat Board, Kalugumalai, seeking relief for a declaration that the streets and open spaces in the village of Kalugumalai were the absolute private property of Sri Kalugachalamurthi temple and for a permanent injunction restraining the Panchayat Board from interfering in any manner with the said streets and open spaces and for other reliefs. On objection being raised by the Panchayat Board that the State of Madras was a necessary party, and that the suit was bad for non-joinder the State came to be impleaded by the plaintiff-Devasthanam as the second defendant in the suit. The plaint was amended and the reliefs were sought against both the defendants. The Devasthanam claimed to be the absolute owner with full proprietary rights in all the streets, roads and open spaces in the village of Kalugumalai lying in the vicinity of the temple, and that the defendants had no manner of right to interfere with those streets and open spaces affecting the enjoyment and user of the Devasthanam. The defendants denied that the Devasthanam had any properietary right in the streets and open spaces and contended that they were public streets which vested in the Panchayat Board of Kalugumalai under the Panchayat Act, The defendants further pleaded that after the abolition and taking over of the zamin of Ettayapuram, of which the village of Kalugumalai formed part under Madras Act (XXVI of 1948) all the streets, roads and open spaces in respect of which the Devasthanam claimed rights vested in the State Government and that therefore the Devasthanam had no right to sue.

The schedule attached to the plaint in O.S. No. 21 of 1952 described the suit property as being an area of an extent of 125 acres in S. No. 201/A and S. No. 203 in Kalugumalai village. In I.A. No. 130 of 1955 on the file of the Sub-Court, Tuticorin, the Devasthanam sought permission to withdraw the suit in respect of portions of the plaint mentioned property except the streets, the West Car Street, the South Car Street, the East Car Street, the Giri Prakaram road and the Nadu Street. The trial Court granted this permission by its order in the interlocutory application, dated 29th March, 1955. By another order of the trial Court in the application, I.A.No.130 of 1955, S.No.203 also became excluded from the compass of the suit.