The Deputy Commissioner H.R. & C.E., Admn Department v. V.P.Prithviraj

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.02.2008CORAM :THE HON’BLE MR. JUSTICE S.TAMILVANANA.S.No.662 of 19971. The Deputy Commissioner H.R. & C.E., Admn Department Chennai – 34.2. The Commissioner H.R. & C.E., Admn Department, Chennai – 34. .... Appellantsvs.V.P.Prithviraj .... RespondentAppeal filed against the Judgment and Decree, dated 18.12.1995 madein O.S.No.7644 of 1990 on the file of the First Assistant Judge, CityCivil Court, Chennai. For Appellants : Mr.M.R.Murugesan, Spl.G.P.(H.R & C.E.,)For Respondent : No appearance JUDGMENTThis appeal is directed against the judgment and decree dated18.12.1995 made in O.S.No.7644 of 1990 on the file of the FirstAssistant Judge, City Civil Court, Chennai.2. The appellants herein were the defendants in the suit beforethe trial Court. The suit had been filed by the respondent/Plaintiff.Though the learned Special Government Pleader appearing for theappellants has continuously present, there was no representation for therespondent and after hearing the arguments advanced by the learnedSpecial Government Pleader and also gone through the evidence both oraland documentary available on record, the judgment is delivered. 3. According to the respondent/Plaintiff, the suit temple inNo.270, T.T.K.Road, Chennai is a private temple belongs to the family ofthe respondent herein. According to the respondent / plaintiff, the idolof Sri Panchatshara Karumariamman was installed by his father in theyear 1905 by constructing a small place for his private worship, which https://hcservices.ecourts.gov.in/hcservices/ is available at paragraph number 5 of the plaint. As per the plaint, thefather of the respondent / plaintiff is V.Pushparaj @ V.P.Raj. Therespondent / plaintiff, who was examined as P.W.1 has deposed in hisevidence, contrary to his pleadings that the temple was founder by hisgrand father Venkatachalam in the year 1904. There is no evidence onrecord to show that neither grand father of the respondent / plaintiffnor his father V.Pushparaj @ V.P.Raj had installed the temple either inthe year 1904 or in 1905. 4. It is seen that Ex.A.9, xerox copy of a partition deed isbetween V.Pushparaj and 3 others, including V.P.Prithiviraj, therespondent / plaintiff, wherein in the schedule of properties, there isno whisper about the idol or the temple, alleged by the plaintiff.5. D.W1., who was the Inspector, VI Circle, Alwarpet in the year1983 has deposed that she had inspected the temple in the year 1982 and1983 wherein idol of Sri Panchatshara Karumariamman, idol of SriVinayagar and idol of Lord Murugan were being worshipped by public andthat there was a hundial for collecting public contribution. Accordingto D.W.1, while she was inspecting the temple, the respondent /plaintiff was present and by an enquiry with the public, she found thatit was a temple worshipped by public as a matter of right and thatprasadams, such as kumkum, vibuthi and flowers were given to the people,based on which, she had submitted the report to the first appellant, theDeputy Commissioner, H.R. & C.E. Department, Chennai. According to her,it was not a temple founded by the ancestors of the respondent /plaintiff as a private temple and during her second visit, she couldfound that the hundial was removed from the temple premises.6. P.W.1 has admitted in his evidence during his cross-examinationthat there was hundial in the temple premises. If there is no publicworship, hundial need not be placed in the temple premises, as contendedby the learned Special Government Pleader appearing for the appellant.He has also admitted that public use to perform pooja in the temple andvibuthi prasadam were given to them.7. In Ex.A.9, alleged partition deed, nothing had been stated bythe parties about the aforesaid idols, in fact in Schedule "E" someblank is left, where something has been filled by pencil and not even byink.8. According to Mr.M.R.Murugesan, learned counsel appearing for theappellant, the trial court has found that there is no evidence to showthat the temple was installed by the Grand Father Venkatachalam orFather V.Prithiviraj @ V.P.Raj of the respondent / plaintiff in the year1904 or 1905, as stated by the respondent in the plaint and in hisdeposition and further, there is a clear admission by the respondentthat there was a public worship and hundial was also their forcollecting public contribution. Subsequently, during the second visit of https://hcservices.ecourts.gov.in/hcservices/ D.W.1, Inspector, H.R. & C.E., the hundial was removed deliberately, soas to claim the right as a private temple. In support of his contention,the learned Special Government Pleader cited the following decisions :1. V.Mahadeva v. Commr. H.R.E, 1956 Madras 5222. Hindu Religious and Charitable Endowment (A) Department vs.N.Sivarawajan Nadar, 2001 (2) CTC 5133. Gedela Satchidananda Murthy vs. Dy. Commr., Endowments Deptt.,A.P, 2007 AIR SCW 3482.9. In Gedela Satchidananda Murthy vs. Dy. Commr., EndowmentsDeptt., A.P, reported in 2007 AIR SCW 3482, it has been held as follows :" We have noticed herein before that the Act itselfrecognizes Samadhi. A religious institution, thus,includes a Samadhi. When it is established ormaintained for public purpose together with a temple,it would indisputable come within the purview of thesaid definition of the said terms."As per this Judgment, even a Samadhi worshipped by public is construedonly as a religious institution. In the aforesaid Judgment, the Hon'bleSupreme Court has held that merely because the appellant has residentialhouse in a portion of the property, it cannot be said that the same isoutside the purview of the H.R. & C.E., Act.10. This Court in the decision, Hindu Religious and CharitableEndowment (A) Department vs. N.Sivarawajan Nadar, reported in 2001 (2)CTC 513, has held that as per Section 6(20) of Tamil Nadu HinduReligious and Charitable Endowments Act, 1959, onus of proof lies on theperson alleging that the institution is a private temple and not apublic temple. In this suit, the respondent, being the plaintiff, hasclaimed the suit temple as a private temple and therefore, the onus ofproof lies on the respondent / plaintiff and not on the H.R. & C.E.,Department, the appellants herein. 11. A Division Bench of this Court in the decision, V.Mahadeva v.Commr. H.R.E, reported in 1956 Madras 522, has held as follows :"We are informed that the room in which the temple islocated is easily capable of being demarcated fromthe rest of the building. So, no possible difficultycan arise by declaring the temple a public temple andrest of the building and the bakery to be the privateproperty of the appellant and the other Gurukkals, ifany. "12. In the instant case, though the respondent / plaintiff haspleaded that Sri Panchatshara Karumariamman idol was installed in theyear 1905 by his father, there is no evidence to show that the same wasinstalled in the said year by his father, V.Pushparai @ V.P.Raj.Similarly, in the oral evidence he has given a contrary version that the https://hcservices.ecourts.gov.in/hcservices/ temple was started in the year 1904 by his grand father Venkatachalam,for which also there is no evidence on record. The other documentsmarked by the respondent, such as property tax, receipts for electricconsumption charges, water tax and other documents would not besufficient to establish that the suit temple is a private temple belongsto the respondent / plaintiff. The respondent / plaintiff has admittedin his evidence that he got patta on 18.01.1988, only subsequent to thefiling of the suit. The sketch prepared by the respondent / plaintiffmarked as Ex.A.8 is also a self-served document.13. It is not in dispute that the respondent / plaintiff had filedan application in O.A.No.20/82 before the Deputy Commissioner(Judicial), H.R.& C.E., Administration Department, Chennai-34, underSection 63(a) of the Tamil Nadu H.R. & C.E., Act (22 of 1959). It isonly a typed paper, erroneously certified as xerox copy by the learnedcounsel for the plaintiff, which contains no signature or seal of theDeputy Commissioner, H.R. & C.E., Department or any other officials ofthe appellate department. Even as per this document, only based on thereport, Ex.C.1, filed by the Inspector, H.R. & C.E., Department, it hasbeen decided by the first appellant that the respondent is not entitledto the declaration sought for. The appeal preferred against the saidorder under Section 69(1) of H.R. & C.E., Act was also dismissed by thesecond respondent.14. From the evidence available on record, it is clear that thereare idols of Sri Panchatshara Karumariamman, Sri Vinayagar and LordMurugan and there was public worship and also hundial in the premises ofthe temple and subsequently, the hundial had been removed. In Ex.A.9,alleged partition deed, nothing had been stated about the idolsand other description. Therefore, it could be construed that there is adeliberate suppression of idols and physical features of the temple andin other words, the document is not related to the suit property.15. The trial court, without considering the evidence and the legalaspects, has erroneously decreed the suit as prayed for by therespondent. In such circumstances, this Court is of the view that theappeal has to be allowed and the impugned Judgment and Decree of thetrial court has to be set aside.16. In the result, the appeal is allowed with costs, confirming theorders passed by the appellants and the Judgment and Decree passed bythe Court below are set aside. Sd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ tsvnTo1. The First Assistant Judge, City Civil Court Chennai. 2. The Registrar, City Civil Court, Madras.3. The Superintendent, VR Section, High Court, Madras.1 cc To The Government Pleader, SR.8985.Rl (co)krd / 17.6.08 A.S.No.662 of 1997