A temple is classified as private if it lacks features of public worship and management rests with a specific community, as established through historical evidence and refusal of public rights.

JUDGMENT :

S. Srimathy, J.

The First Appeal is filed by the HR&CE Department who was the defendant in the suit to set aside the Judgment and Decree dated 15.12.2014 passed in O.S.No.96 of 1990 on the file of the Principal Sub Court, Nagercoil. The plaintiffs in the suit are the respondents herein and the defendant in the suit is the appellant herein.

2. The suit in O.S.No.96 of 1990 is filed to set aside the order dated 26.02.1989 passed in A.P.No.19/1983 by the Commissioner of Hindu Religious & Charitable Endowment Department (hereinafter referred to as HR&CE Department), Madras declaring Arulimighu Kootar Ezhava Oor Arumuga Perumal Pillayar Swamy Kovil (hereinafter referred as temple) Kottar, Nagercoil, Agasteeswaram Taluk, Kanyakumari District as a religious institution and to declare the said temple is Private Temple which belongs to 52 Ezhavas families mentioned in the Udambady.

3. The plaintiff submitted that the temple was in existence for more than 100 years and when there was interference by the HR&CE Department, the litigation started between the temple and the department. The Deputy Commissioner, HR&CE Department had initiated suo motu proceedings for framing a scheme of administration for the temple in O.A.No.10 of 1967. The then trustees had filed O.A.No.24 of 1967 under section 63(a) of the HR&CE Act to declare the institution is not a religious institution. The Deputy Commissioner, HR&CE (Judicial) had dropped the proceedings in O.A.No. 10/1967. And dismissed the O.A.No.24/1967, against which the trustees had preferred appeal in A.P.No.31/1973 on the file of Commissioner HR&CE. The said appeal was allowed and the case was remanded back to the Deputy Commissioner, HR&CE, Tirunelveli. The said application was renumbered as O.A.No.3 of 1975 and the same was dismissed on 29.05.1976. Again, the Trustees had filed appeal in A.P.No.139/1976 under section 69(1) of the Act and the case was remanded back to Deputy Commissioner, HR&CE, Tirunelveli vide order dated 23.04.1979. On remand the case was numbered as O.A.No.31/1979, thereafter the Deputy Commissioner had inspected the temple after issuing notice dated 29.08.1981, but again dismissed the case on 08.12.1981. Again, the trustees had preferred appeal in A.P.No.19 of 1983 and the same was dismissed on 26.02.1990. After issuing notice dated 26.03.1990 under Section 80 of CIVIL PROCEDURE CODE , the trustees had preferred O.S.No.96 of 1990 on the file of Sub Court, Nagercoil inter alia praying to set aside the order dated 26.02.1990 passed in A.P.No.19 of 1983. The said suit was dismissed on 31.03.1997, aggrieved over the Trustees had preferred A.S.No.831 of 1998 before High Court. The said First Appeal was allowed vide judgment and decreed dated 26.11.2009, wherein the case was remanded back to the Trial Court for fresh disposal with a direction to the Deputy Commissioner, HR&CE to forward all the documents filed in A.P.No.19 of 1983 and O.A.No.37 of 1979 to Sub Court, Nagercoil. The Trial Court was directed to grant opportunity to both the parties to adduce evidence, if any and to consider the issues afresh.

4. In the Trial the plaintiff had examined witnesses PW 1 to 5 before remand and PW 7 to 9 after remand. Likewise, DW 1 was examined before remand and DW2 after reman