REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO           OF 2009 ARISING OUT OF S.L.P. (C) NO. 20197/2006

G. JAYALAKSHMI & ORS. … APPELLANTS

VERSUS

ARULMIGHU PAZKHIKANCHIYA VINAYAGAR & ITS TEMPLE        … RESPONDENTS

J U D G M E N T

S.B. SINHA, J.

1. Some of the defendants in the original suit, who purchased the suit  

property  from  the  defendant  Nos.  1-3,  are  before  us  questioning  the  

judgment and order dated 25.4.1996 passed by a learned single Judge of the  

High Court in Appeal Suit No.396/2000 whereby and whereunder judgment  

and  decree  dated  12.07.2000  passed  by  the  learned  Subordinate  Judge,  

Sivakasi in O.S. No.242 of 1999 was set aside.

2. Inter  se  relationship  between  the  plaintiffs  and  the  predecessor-in-  

interest of the original defendant Nos. 1-3 is not in dispute.  It would appear  

from the following genealogical tree:

Muthuswamy Othuwar

Seeni Othuwar Gnana Othuwar

Muthuswamy Othuwar Kulanthaively Othuwar

Seenia Pillai Gnanam Pillai Mariappa Pillai Shanmugam Pillai

Muthuramalingam Pillai

Ranthinam Ammal     Gomathi Muniasamy Panchavarnam    Visalakshi (1st Plaintiff) (4th Defendant)   2nd Plaintiff  3rd Plaintiff

Ravindran Aathi Naryaanan Sreenivasan                   1st Defendant   2nd Defendant 3rd Defendant

3. In 1963, one S. Muthuramalingam Pillai filed an application before  

the  Deputy  Commissioner,  Hindu  Religious  and  Charitable  Endowment  

(Administration)  Department,  Madurai  for  declaring  Sri  Pazhikanjia  

Vinayagar  Temple,  Sivakasi  is  not  a  religious  and charitable  endowment  

within  the  meaning  of  the  Madras  Hindu  Religious  and  Charitable  

Endowments  Act,  1959  (for  short  ‘the  1959  Act’)  and  that  he  is  the  

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hereditary trustee of the temple.  Shri K. T. T. Ramalingam Chettiar was  

impleaded as respondent in the application.

4. The learned Deputy Commissioner framed the following issues:

“(1) Whether  the  suit  institution  is  not  a  religious  institution? (2) Whether the petitioner is the hereditary trustee of  the suit temple?

(3) To what relief is the petitioner entitled?”

5. On the basis of the materials brought on record by the parties to the  

said proceeding, it was held: -

“I  therefore  find that  the suit  institution is  not  a  religious institution falling within the scope of the act.  I  find on issue No.1 accordingly.

Item No.2: In view of the finding on Issue NO.1  it is not necessary to determine whether the petitioner is  the hereditary trustee of the institution, as such this issue  does not arise.  I find accordingly on issue No.2.

Item No. 3: In view of the finding on issue No.1 it  is declared that Sri Pazhikanjia Vinayagar temple is not a  religious institution falling within the scope of the Act.”

6. Feeling  aggrieved  by  the  afore-mentioned  order,  Shri  K.T.T.  

Ramalingam Chettiar preferred an appeal before the Commissioner, which  

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was  marked  as  Appeal  No.49/1965.   By  an  order  dated  13.12.1960,  the  

Commissioner upheld the order of the Deputy Commissioner stating: -

“On a careful consideration of the entire evidence  placed  in  this  case,  I  am  satisfied  that  the  Deputy  Commissioner  has  gone  in  great  detail  of  the  entire  evidence placed in the matter and that he has come to the  correct conclusion that the temple in question is a private  temple of the respondent and his forefathers and that the  claim of the appellant that it is a ‘temple’ as defined in  Section 6(20) of the Act is unsustainable, but that it is not  a  ‘religious  institution’  falling  within  the  scope  of  Section 6(18) of the Act.  I am, therefore, of the view that  this  appeal  should  fail  and  consequently,  the  same  is  dismissed.”

7. Thereafter, Shri K.T.T. Ramalingam Chettiar filed a suit in the Court  

of Subordinate Judge, Ramanathapuram in terms of Section 70 of the 1959  

Act for grant of a declaration that the temple was a public temple and not a  

private one.  Shri S. Muthuramalingam Pillai also filed a suit for recovery of  

possession of certain properties  and damages against  K.T.T.  Ramalingam  

Chettiar which was marked as O.S. No.124/1969.   

Having regard to the pleadings of the parties, the learned trial Judge  

framed the following two sets of issues: -  

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“SET 1: 1. Whether  the  plaint  mentioned  temple  is  a  public  

temple as denied in Madras Act 25 of 1959?  2. Whether the order in OA 37 of 1963 on the file of the  

Deputy Commissioner,  HR & CE, Madurai and AP  No.49 of 1965 are liable to be set aside?

3. To what relief is the Plaintiff entitled?

SET 2: 1. Whether the Plaintiffs are entitled to possession of the  

suit properties? 2. Whether the Plaintiffs are entitled to any damages? 3. If so, what is the quantum? 4. Whether  the Plaintiffs  are  estopped from setting up  

title to the suit property? 5. Whether the Court has no jurisdiction to try the suit? 6. Whether the temple is a private one or a public one? 7. Whether the court fee paid is correct? 8. Whether the suit is barred by limitation? 9. Whether the suit is not maintainable? 10.To what relief if any, are the plaintiffs entitled?”  

8. The suit  filed  by K.T.T.  Ramalingam Chettiar  was  decreed  by the  

Trial  Court  and  it  was  declared  that  the  temple  in  question  is  a  public  

temple.   Simultaneously,  the  suit  filed  by  Muthuramalingam  Pillai  was  

dismissed and it was held that the plaintiff in that suit was not entitled to a  

decree  of  possession.   The  heirs  and  legal  representatives  of  Shri  

Muthuramalingam,  aggrieved  thereby  filed  two  appeals,  which  were  

dismissed by a learned Single Judge of the High Court on 4.10.1991.  Letters  

Patent Appeals filed by them were dismissed by the Division Bench and the  

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judgment and order of the Division Bench was affirmed by this Court by  

dismissing the SLP.

9. After  about  6  years  of  the  dismissal  of  the  letters  patent  appeals,  

Rathinammal and two others filed a petition under Section 63(b) of the 1959  

Act  for  being  declared  as  the  hereditary  trustees  of  the  temple.  That  

application  is  said  to  be  still  pending.   During  the  pendency  of  that  

application,  Rathinammal  and two others  filed a  suit  in  the  name of  the  

temple for declaring that properties mentioned in the suit schedule belong to  

the temple.  They also prayed for grant of a decree of permanent injunction  

to restrain defendant Nos. 1-4 and their successors/agents from selling or  

alienating  the  suit  property.   The  learned  Subordinate  Judge  by  a  very  

detailed judgment dated 12.7.2000 dismissed the said suit inter alia holding:-

(i) that the suit  properties were not involved in the earlier  

round litigation;

(ii) the plaintiff is bound by the admission made by P.W. 1,  

one of the plaintiffs, that the properties in suit had been  

mentioned in the deed of partition dated 1917.

10. On an appeal preferred by the plaintiffs, the High Court reversed the  

said judgment and decree of the Trial Court.   

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The High Court rested its conclusion principally on the observations  

made in the earlier litigation that the temple and its properties are public in  

character.  The High Court also relied upon the admission made by D.W. 1  

in his statement before the Court that his grandfather had no right, title or  

interest over the suit properties.

11. Before  us,  the learned counsel  for the parties  have made elaborate  

submissions.  We have been taken through various documents referred to in  

the  judgments  of  the  trial  court,  the  High  Court  as  also  the  judgments  

rendered in the earlier round of litigation.   

12. However, some of the basic documents including the deed of partition  

and the pleadings of the two suits filed by K.T.T. Ramalingam Chettiar and  

S. Muthuramalingam Pillai have not been produced so as to enable us to  

arrive at a definite conclusion inter alia with regard to the identity of the suit  

properties.   

13. A temple may be declared as a public temple inter alia when a grant is  

made  in  favour  of  the  public  by the  owner  of  the  property  although the  

temple is constructed by a private person, or if the temple is constructed on  

government land; and if the public in general have a right of worship the  

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deity as contra-distinguished from the right of worship in a temple which is  

confined to a family or a community.  If the suit properties had been the  

subject matter of partition and if the same had nothing to do with the temple  

in question it would be one thing; however, it will be a different thing if the  

temple and the suit properties in and around the same had all along been  

treated as temple properties.

14. Mr. Mohan, learned counsel appearing for the appellants herein has  

taken great pains before us to show that the suit property (shops) were in  

exclusive  possession  of  Muniaswamy  and  he  alone  was  realizing  rent  

therefrom, though he had not been able to participate in the management of  

the temple because he had been working elsewhere.  It was, furthermore,  

contended that even the property tax in respect of the shops in question used  

to be paid by Muniaswami.   

15. On the other hand, the contention of Mr. Padmanabhan, the learned  

senior counsel, is that the property tax used to be paid by the temple itself  

through the Hakdar namely the manager of the temple.   

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16. Mr.  Prabhakar,  learned  counsel  appearing  for  some  of  the  

respondents,  informed  us  that  the  nature  of  the  said  properties  were  

described as “natham” namely ‘village site’.   

17. It is, therefore, evident that the nature of the property in respect of the  

temple as also the suit properties are different.   

18. In our view, one of the questions which should have been posed and  

answered by the High Court is  as to whether like the land on which the  

temple was constructed, the suit properties were also situated on any public  

land or not.  The High Court should have also gone into other aspects of the  

matter in the backdrop of documents produced by the parties and should not  

have disposed of the appeal simply by relying upon some observations made  

with  regard to  temple properties  in  the  earlier  round of  litigation  by the  

courts.   

A finding of fact was required to be arrived at upon consideration of  

the pleadings of the parties and the documents produced by them, for the  

purpose of ascertaining the identification of land as well as the nature and  

character thereof.   

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19. It  has  been  contended  before  us  by  the  learned  counsel  for  the  

respondents that there are a large number of documents to show that the  

properties  belong to the temple.   As against  this,  learned counsel for the  

appellants pointed out that there are large number of documents to show that  

Muniaswami was realizing the rent.

20. We would have ourselves undertaken the exercise but we are not in a  

position to do so as most of the documents including the deed of partition,  

patta and other original documents are not before us.   

21. We,  therefore,  set  aside  the  impugned  judgment  and  remand  the  

matter to the High Court for consideration of the matter afresh.   

We request the High Court to consider the desirability of disposing of  

the matter as expeditiously as possible.

22. The appeal is disposed of in the aforesaid terms.

.………………………………J [S. B. SINHA]       

.………………………………J [G.S. SINGHVI]       

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.………………………………J [DEEPAK VERMA]       

New Delhi July 28, 2009.

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