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2018 Supreme(Mad) 3342
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
C.V. Karthikeyan, J.
Commissioner Hindu Religious and Charitable Endowments – Appellant
Versus
A. Krishna Iyer – Respondent
Appeal Suit No. 105 of 2005
Decided On : 03-10-2018
J. Gunaseelan Muthaiah, S. Ramesh, V. Raghavachari.
Headnote:
Tamil Nadu HR and CE Act 1959 - Section 70 – Hindu Religious And Charitable Endownment Act, 1959 - Section 63(A) - Section 69(1) - Section 6(20) - Indian Evidence Act, 1872 - Section 114(g) - Temple – Public Trust - In plaint in O.S. No. 183 of 1990, plaintiffs claimed that first plaintiff Trust is a private trust - It owns several items of immovable properties obtained on Royal grants by then Raja of Travancore - Families who reside in Agraharam are descendants of persons who originally settled there - It was claimed that at western extreme end of Agraharam, a temple had been constructed by name Sree Venugopalaswamy Temple - Residents alone perform pooja in Temple - Administration is by trustees - They have sufficient funds to conduct poojas and special functions - It was stated that in year 1960, officials of HR and CE, Administration Department called upon trustees to furnish particulars and accounts - It was furnished - Again,officials of HR and CE, Administration Department, called for production of accounts - Accounts were furnished - However, in 1985, once again HR and CE, Administration Department, attempted to interfere in administration of Temple - Trustees then filed O.A – Held, In present case, origin of temple is obscure - But it is seen from Exs.A11 to A14 that Travancore Samasthanam have given a specific grant to community at Parvathipuram village and that management of Sree Venugopalaswamy Temple had been vested with members of the Brahmin community in village - It is clear that temple is a private temple - It is also seen that DW-1 had admitted that Exs.A11 to A14 relate to grant made by Travancore Samasthanam to temple more than 150 years ago - It is also seen that DW-1 had admitted that in schedule of incorporated and unincorporated temples in Travancore Cochin Hindu Religious Institutions Act, Sree Venugopalaswamy Temple was not included - Thereafter, even after territories had been transferred to Tamil Nadu and said Act has been repealed by Tamil Nadu Hindu Religious and Charitable Endowment Act, in schedule-1 of Act, Sree Venugopalaswamy Temple, Parvathipuram is not included as an incorporated or unincorporated temple - Above points clearly establish that Sree Venugopalaswamy Temple, Parvathipuram is a private temple belonging to first plaintiff Trust - It is under exclusive management of members of trust - Defendants have not produced any evidence contradicting these facts established by plaintiffs - It is also seen that inspection report had not been produced which goes to root of case - Plaintiffs did not have any opportunity to cross examine defendants witness on issues raised in said report - It is to be presumed that report had not been produced only because it was adverse to stand of defendants – Appeal Dismissed.
1. This Appeal had been filed by the defendants in O.S. No. 183 of 1990 on the file of the First Additional Subordinate Court, Nagercoil. O.S. No. 183 of 1990 had been filed by the first plaintiff, the Parvathipuram Gramam Brahmana Samudayam Trust, represented by its Trustees and Manager and by the Trustees who were shown as plaintiffs 2 to 13 against two defendants namely, the Commissioner of HR and CE Administration Department, Madras and Assistant Commissioner of HR and CE Administration Department, Nagercoil. It was filed under Section 70 of the Tamil Nadu HR and CE Act 1959, seeking a Judgment and Decree to set aside and reverse the order passed by the first defendant on 31.07.1990 and declare that Sree Venugopalaswamy Temple in Parvathipuram, is a private temple and belongs to the first plaintiff.
2. This suit came up for consideration before the First Additional Subordinate Court, Nagercoil and by Judgment and Decree dated 28.10.2003, the suit was decreed. Challenging that Judgment, the defendants have filed the present first appeal.
3. In the plaint in O.S. No. 183 of 1990, the plaintiffs claimed that the first plaintiff Trust is a private trust. It owns several items of immovable properties obtained on Royal grants by the then Raja of Travancore. The families who reside in the Agraharam are descendants of the persons who originally settled there. It was claimed that at the western extreme end of the Agraharam, a temple had been constructed by the name Sree Venugopalaswamy Temple. The residents alone perform the pooja in the Temple. The administration is by the trustees. They have sufficient funds to conduct poojas and special functions.
4. It was stated that in the year 1960, the officials of the HR and CE, Administration Department called upon the trustees to furnish particulars and accounts. It was furnished. Again in 1982, the officials of HR and CE, Administration Department, Nagercoil called for production of accounts. The accounts were furnished. However, in 1985, once again the HR and CE, Administration Department, attempted to interfere in the administration of the Temple.
5. The Trustees then filed O.A. No. 7 of 1986, under Section 63(A) of HR and CE Act before the Deputy Commissioner Tirunelveli. That petition was dismissed. The appeal in A.P. No. 82 of 1989 filed before the first defendant under Section 69(1) of the HR and CE Act was also dismissed. Thereafter, the plaintiff had filed the present suit under Section 70 of the HR and CE Act.
6. It had been stated in the plaint that the temple had been constructed by the ancestors of the families now living in the Agraharam. It was stated that the general public cannot worship in the temple as a matter of right. It was stated that the findings given by the Deputy Commissioner and by the Commissioner were against established facts. It had been stated that the temple had been constructed more than 150 years before. It was therefore contended that the order of the first defendant declaring the temple as a public temple should be cancelled and set aside.
7. The defendants in their written statement, stated that the temple is situated on a Poromboke land. It was stated that the worship by the were never restricted. It was stated that all the community members in the village worshipped in the temple as a matter of right. The street is not private street. The temple tank is used by various community people. There is no documentary evidence to prove who constructed the temple. It had been stated that the findings given by the Deputy Commissioner and by the Commissioner are legally sustainable and it was prayed that the suit should be dismissed.
8. The plaintiffs, then filed a reply statement. They have denied the averments made in the written statement. They have further stated that only the plaintiffs and their community people alone administer the temple and perform the poojas. They stated that the Temple Idols are not taken out in procession and there are no publi
