The Assistant Commissioner H.R.&C.E.Admn.Department v. Kamalammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.6.2009CORAM:THE HONOURABLE MR.JUSTICE M.VENUGOPALA.S.No.121 of 20021. The Assistant Commissioner H.R.&C.E.Admn.Department Salem-12. The Deputy Commissioner H.R.& C.E.Admn.Department Salem3. The Commissioner H.R.& C.E. Admn.Department Chennai .. Appellants/Defendants-vs-Kamalammal .. Respondent/PlaintiffThis appeal is filed under Section 70(2) of the H.R & C.E.Act 22of 1959, against the Judgment and Decree dated 14.11.2000 passed inO.S.No.746/93 on the file of the Second Additional Subordinate Judge,Salem.For appellants : : Mr.M.R.Murugesan, Spl.G.P.(HR & CE)For respondent : : Mr.P.MathivananJ U D G M E N T The appellants/defendants have preferred this appeal asagainst the Judgment and decree made in O.S.No.746 of 1993 by thelearned Second Additional Subordinate Judge, Salem in setting asidethe order the Commissioner(HR & CE) dated 5.3.1993 in A.P.No.57/1990and granting the relief of declaration that the suit temple is theprivate temple of the respondent/plaintiff's family.2.The short facts that are necessary for the disposal of thecase are as below:The suit temple Arulmighu Nagamuneswarar temple is a smalltemple is situated in Block 3 Ward F,Bazaar Street(Main Road) in doorNo.305, in T.S.No.109,Shevapet, Salem and the same belongs to therespondent/plaintiff's family exclusively. The ancestor of therespondent's/plaintiff's husband Amboiyra Naicker has acquired aland about 100 years ago and has put up a thatched shed and installedMuniappan Idol and founded the suit temple in the property. After the https://hcservices.ecourts.gov.in/hcservices/ death of said Amboiyra Naicker, his son Marimuthu Naicker has removedthe thatched shed and constructed the tiled building for the suittemple and he was in management of the affairs of the temple. Thesaid Marimuthu Naicker spent the amount exclusively for constructingthe tiled building for the suit temple. He was performing poojasduring his life span and was also administering the other templeaffairs. After the demise of Marimuthu Naicker, his son MuthusamyNaicker viz., the husband of the respondent/plaintiff has taken upthe affairs of the management of the suit temple. In his life time,he has renovated the temple by putting an extension and also builtGopuram. Further he has also built some shops adjoining the suittemple. The said Muthusamy Naicker met the expenses and theconstruction costs thereto. Nobody has contributed for theconstruction of the temple, Gopuram and other renovation works andthe respondent's/plaintiff's family at their cost have carried outthe development works. Therefore, except the respondent/plaintiff noone has any right, title, interest or possession over the suittemple. In the year 1991, Muthusamy Naicker expired and later therespondent/plaintiff, the wife of the deceased Muthusamy Naickersucceeded in as legal representative and she has been managing theaffairs of the temple exclusively.3.Till 1982, neither the appellants/defendants, departmentalofficials nor outsiders including the other family members of therespondent/plaintiff interferred in the affairs and management of thesuit temple. Later the first appellant/first defendant has beenissuing notices to the respondent/plaintiff calling for objections,if any,as to why the trustees should not be appointed in regard tothe suit temple for which the respondent/plaintiff has explained tothe authorities that the suit temple has been exclusive management ofthe respondent/plaintiff's family for well over 100 years without anyinterference from any quarters and that the H.R.& C.E.Departmentcannot appoint the trustees for the suit temple. Therespondent/plaintiff also stated that the suit temple is a privateone. Notwithstanding the same, the first appellant/first defendanthas been issuing notices and the respondent/plaintiff filedO.A.No.161/1987 before the second defendant under Section 69(1) ofthe Tamil Nadu Hindu Religious and Charitable Endowment Act 1959seeking declaration that the suit temple is a private temple and forother reliefs. The second appellant/second defendant has dismissedthe said original application. Patta in respect of the land in whichthe suit temple lies stands in the name of the respondent/plaintiff.The respondent/plaintiff has filed an appeal before the thirdappellant/third defendant in A.P.No.57 of 1990 being aggrievedagainst the order passed in O.A.No.161 of 1987 by the DeputyCommissioner, H.R.& C.E. Since the respondent/plaintiff is attendingthe affairs of the suit temple exclusively and because of the factthat except the plaintiff's family , none others are managing theaffairs of the temple till today. The present suit has been filed bythe respondent/plaintiff praying for the relief of declaration thatthe suit temple is a private temple of the respondent/plaintiff'sfamily. https://hcservices.ecourts.gov.in/hcservices/

4.The first appellant/first defendant has filed a writtenstatement(which has been adopted by defendants 2 and 3) inter aliastating that the respondent/plaintiff and their family is no wayconnected to the suit temple and the suit temple is a public templeand it is absolutely false that the husband of therespondent/plaintiff has constructed the bucca building for the suittemple with his own funds and that the suit temple is a public templeand that the festivities and other functions have been performed bymeans of collecting the money from the public and that the suittemple has been classified as non-listed temple and continuingfurther in the written statement, a further plea has been raised tothe effect that the appellants/defendants have taken steps to appointnon-hereditary trustees and also have taken steps to change thecategory of the temple from non-listed one to the listed temple. Theorder passed by the Department is a valid one and that therespondent/plaintiff has suppressed many real factors. In fact,there is no property to the suit temple and the expenses andfestivals of the temple have been performed by the public by means ofthe amount being collected from them. As such, therespondent/plaintiff or no one else has any right in regard to thetemple as the private temple.5.On the basis of the aforesaid pleadings, the trial Courthas framed five issues. On the side of the respondent/plaintiff'switnesses, P.W.1 and P.W.2 were examined and Exs P1 to P8 were markedand on the side of the appellants/defendants, D.W.1 and D.W.2 wereexamined and Exs D1 and D2 were marked.6.The trial Court, on an appreciation of the oral anddocumentary evidence and taking note of the available materialevidence on record, and after analysing the same, has granted therelief of declaration to the respondent/plaintiff that the suittemple is a private one of her family and set aside the order ofthird appellant dated 05.07.1993 passed in A.P.No.57 of 1990.Aggrieved against the said Judgment and decree passed by the trialCourt, the appellants/defendants have projected this appeal beforethis Court.7.Heard both the learned counsel appearing for the partiesand this Court has noticed their respective contentions.8.The points that arise for determination are(1) Whether the finding of the trial Court thatthe suit temple is a private temple ofrespondent/plaintiff's family is sustainable in law?(2) Whether the trial Court is right in settingaside the orders of third appellant dated 05.07.1993passed in A.P.No.57 of 1990?9. Point Nos. 1 and 2: According to Mr.M.R.Murugesan, the learned SpecialGovernment Plealder(H.R.& C.E), the trial Court has failed to https://hcservices.ecourts.gov.in/hcservices/ adjudicate the founder of the temple and the construction of thetemple in its Judgment and further that the trial Court has notappreciated all the facts that the festivals of the temple have beencelebrated only from and out of the funds collected from the publicand other donations and more over, the respondent/plaintiff has nomanner of right to claim the temple is a private one which fact hasnot been looked into by the trial Court in a proper perspective andthat the trial Court has not considered that the petition filed bythe respondent/plaintiff against the appointment of non-hereditarytrustee has been rejected by the appellants/defendants and the samehas also been confirmed in the appeal and these facts have beensuppressed by the respondent/plaintiff before the trial Court and asfar as the present case is concerned, there are no documentaryevidence available except the oral evidence to establish that thetemple is a private one and this aspect of the matter has not beenproperly adverted to by the trial Court and therefore prays forallowing the appeal in furtherance of substantial cause of justice.10.The learned Special Government Pleader( H.R.& C.E)relied on a decision reported in Hindu Religious and CharitableEndowment (A) Department-v- N.Sivarawajan Nadar(2001)(2) CTC 513)wherein it has been held that ' person alleging that temple underconsideration is private temple and not public temple, onus of proofis on person alleging that it is a private temple'.11.Mr .P.Mathivanan, the learned counsel appearing for therespondent/plaintiff submits that earlier the ancestor of therespondent/plaintiff's husband Amboiyra Naicker has acquired a landabout 100 years and has erected a thatched shed and installedMuniappan idol in the said property and founded the suit temple andlater after the death of the said Amboiyra Naicker, his son MarimuthuNaicker construcuted the tiled building for the suit temple afterremoving the thatched shed and he has been in management of theaffairs of the temple and that during his life time, he has beenperforming all poojas and administering the other temple works andafter the demise of Marimuthu Naicker, his son Muthusamy Naicker,viz., the husband of the respondent/plaintiff has taken up themanagement affairs of the suit temple and that he has renovated thesuit temple by putting up extension and also constructed Gopuram forthe temple and that the trial Court has come to the right conclusionthat the suit temple belongs to the respondent's/plaintiff's familyand that the daily affairs of the said temple has been looked afterby the respondent/plaintiff and the same need not be interfered withby this Court in an appeal.12.It is pertinent to refer to the evidence ofP.W.1/plaintiff that she has not filed any documents to show that thesuit temple has been in management of their family for well over 100years and that further after the death of her husband in the year1971, she has been in management of the temple for the past 29 yearsand that she has not looked into the revenue records to know whetherthe suit temple is situate in poramboke land or the patta land. Itis also further evidence of P.W.1/plaintiff that the priest isperforming poojas in the temple for a long time and that she has not https://hcservices.ecourts.gov.in/hcservices/ entered into any agreement with him and that she has not written anyaccounts as to the amount of expenditure involved in regard to theconstruction of the shop in the suit property. Added further it isthe evidence of P.W.1/plaintiff that in the suit temple every yearduring the month of Vaikasi Naga Munieswaran festival is conductedby her and during that time singers will be called for to conduct ofKatchery and that the temple idol will be taken in a processionthrough Periyaidathukkara Street etc and when the procession comesthe people will light camphor, perform Archanas etc.13.It is the evidence of P.W.2 that he is serving as aPriest in the Naga Muniappan temple connected with the suit and alsofor another Vinayagar Temple and that he has been priest for the pastof 46 years and that the suit temple initially has been maintained bythe respondent/plaintiff's father-in-law and later it was maintainedby the respondent's/ plaintiff's husband and after the death ofplaintiff's husband, the plaintiff is looking after the same.14.It is significant to make a mention that it is thecategorical evidence of P.W.2 that the respondent's/plaintiff'shusband has been maintaining the suit temple and during his period,he has removed the thatched shed and put up the terraced portion andconstructed the temple and all the expenses have been made by therespondent's/plaintiff's husband and the expenditure incurred by himabsolutely and in the suit temple, there is no hundial kept for thecollection of the money and that the suit temple belongs to therespondent's/plaintiff's husband in his individual capacity and thata shop which was situated near the temple has been constructed by therespondent/plaintiff and that personally the said shop has beenrented out to Mohan Chettiar etc.,15.On the side of the appellants/defendants, it is theevidence of D.W.1(The inspector of the Salem Division of H.R.&C.EDepartment) that the suit temple is a public temple for whichfestivals and ursavam have been performed with the income of thetemple shop and that it is not correct to state that the suit templebelongs to the respondent's/plaintiff's ancestors in their individualcapacity and that he is not aware that the respondent/plaintiff isthe trustee and before her, her husband has been trustee and that therespondent/plaintiff is not entitled to the reliefs prayed for in theplaint and that the suit temple has got all the ingredients of publictemple.16.During the course of his cross examination, D.W.1 hasdeposed that in the Salem Division, he has been serving as Inspectorfor the past 1 ¼ years and that he cannot say with certainty as tohow many years, the suit temple has been in possession and enjoymentof the respondent/plaintiff and her ancestors and that he is notaware of the fact that as to how the suit temple has been inexistence before and who has altered the construction of the templelater etc.,17.Continuing further, D.W.2 (Assistant of DeputyCommissioner, H.R. & C.E.) has deposed that the suit temple is not https://hcservices.ecourts.gov.in/hcservices/ situated in individual's land and the same is a public temple in aGovernment poramboke land and that he has not brought the suitrecords to the Court and based on Ex.B1, B2 documents, the placewhere the temple is situated is not mentioned as one belonging to theprivate individual. 18.It is to be noted that Section 6(20) of the Tamil NaduHindu Religious and Charitable Endowments Act 1959 refers to the term"Temple" meaning a "place by whatever designation known, used as aplace of public religious worship and dedicated to, or for thebenefit of, or used as of right by, the Hindu Community or anysection thereof, as a place of public religious worship". The test isto look into the fact as to whether the suit temple is a publictemple, whether it is dedicated to public religious worship and thatthe public have free access to the same as a matter of right.Needless to state that the origin of the temple, the manner in whichthe affairs are managed, the gifts received by it and the rightsexercised by devotees in regard to worship thereunder and theconsciousness of the devotees themselves as to the character of thetemple are factors which go to point out whether the temple is apublic or private one.19.Admittedly, there is no definition for a private templeunder H.R.& C.E.Act. The presumption is that temples in South Indiaare public and the burden is on the person asserting it to establishthat it is a private temple in the considered opinion of this Court.Further, the appearance of a temple is a significant circumstance butthe same is not a decisive factor. In a civil suit, it is the dutyof the respondent/plaintiff to establish his / her case. In theinstant case on hand, even though the respondent/plaintiff has soughtfor the relief of declaration that the suit temple is a privatetemple of the respondent's/plaintiff's family, this Court is of theconsidered view that on either side, there is no clinching evidenceto establish as to who has built the suit temple? and who is thefounder of the temple? and except the Ipsi Dixi of the witnesses, onboth sides, there is no satisfactory available material both oral anddocumentary evidence to the subjective satisfaction of this Court toprove the factum that the suit temple is the private temple of therespondent's/plaintiff's family and in that view of the matter, thisCourt comes to the conclusion that the Judgment of the trial Court indeclaring that the suit temple is a private temple of therespondent's/plaintiff's family and setting aside the order of thirdappellant dated 05.07.1993 passed in A.P.No.57 of 1990 are notcorrect in the eye of law and the same are liable to be set aside andresultantly, this Court allows the appeal in the interest of justice.20.In the result, the appeal is allowed and the Judgementand decree of the trial Court made in O.S.No.746 of 1993 are setaside. However, the matter is remanded back to the trial Court forfresh consideration of the matter and the parties have been givenliberty to adduce further oral and documentary evidence to provetheir respective contentions and the trial Court is directed todispose of the suit within a period of four months from the date ofreceipt of a copy of this order uninfluenced by any of the https://hcservices.ecourts.gov.in/hcservices/ observations made by this Court in this appeal and report complianceto this Court without fail. Considering the facts and circumstancesof the case, there shall be no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sgTo 1.The Second Additional Subordinate Judge, Salem.2. The Section Officer, Judicial Department, High Court, Madras-104.3. The Section Officer, V.R.Section, High Court, Madras-104.+ 2 CC to the Spl. Government Pleader SR NO.23061 & 23062+ 1 CC To Mr.P.Mathivanan, Advocate SR NO.22530A.S. No.121 of 2002RSN {CO}TP/23.6.2009.