IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.02.2008 CORAM : THE HON’BLE MR. JUSTICE S.TAMILVANAN A.S.No.662 of 1997 1. The Deputy Commissioner H.R. & C.E., Admn Department Chennai – 34. 2. The Commissioner H.R. & C.E., Admn Department, Chennai – 34. .... Appellants vs. V.P.Prithviraj .... Respondent Appeal filed against the Judgment and Decree, dated 18.12.1995 made in O.S.No.7644 of 1990 on the file of the First Assistant Judge, City Civil Court, Chennai. For Appellants : Mr.M.R.Murugesan, Spl.G.P.(H.R & C.E.,) For Respondent : No appearance JUDGMENT This appeal is directed against the judgment and decree dated 18.12.1995 made in O.S.No.7644 of 1990 on the file of the First Assistant Judge, City Civil Court, Chennai. 2. The appellants herein were the defendants in the suit before the trial Court. The suit had been filed by the respondent/Plaintiff. Though the learned Special Government Pleader appearing for the appellants has continuously present, there was no representation for the respondent and after hearing the arguments advanced by the learned Special Government Pleader and also gone through the evidence both oral and documentary available on record, the judgment is delivered. 3. According to the respondent/Plaintiff, the suit temple in No.270, T.T.K.Road, Chennai is a private temple belongs to the family of the respondent herein. According to the respondent / plaintiff, the idol of Sri Panchatshara Karumariamman was installed by his father in the year 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, the father of the respondent / plaintiff is V.Pushparaj @ V.P.Raj. The respondent / plaintiff, who was examined as P.W.1 has deposed in his evidence, contrary to his pleadings that the temple was founder by his grand father Venkatachalam in the year 1904. There is no evidence on record to show that neither grand father of the respondent / plaintiff nor his father V.Pushparaj @ V.P.Raj had installed the temple either in the year 1904 or in 1905. 4. It is seen that Ex.A.9, xerox copy of a partition deed is between V.Pushparaj and 3 others, including V.P.Prithiviraj, the respondent / plaintiff, wherein in the schedule of properties, there is no whisper about the idol or the temple, alleged by the plaintiff. 5. D.W1., who was the Inspector, VI Circle, Alwarpet in the year 1983 has deposed that she had inspected the temple in the year 1982 and 1983 wherein idol of Sri Panchatshara Karumariamman, idol of Sri Vinayagar and idol of Lord Murugan were being worshipped by public and that there was a hundial for collecting public contribution. According to D.W.1, while she was inspecting the temple, the respondent / plaintiff was present and by an enquiry with the public, she found that it was a temple worshipped by public as a matter of right and that prasadams, such as kumkum, vibuthi and flowers were given to the people, based on which, she had submitted the report to the first appellant, the Deputy 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 could found that the hundial was removed from the temple premises. 6. P.W.1 has admitted in his evidence during his cross-examination that there was hundial in the temple premises. If there is no public worship, hundial need not be placed in the temple premises, as contended by the learned Special Government Pleader appearing for the appellant. He has also admitted that public use to perform pooja in the temple and vibuthi prasadam were given to them. 7. In Ex.A.9, alleged partition deed, nothing had been stated by the parties about the aforesaid idols, in fact in Schedule "E" some blank is left, where something has been filled by pencil and not even by ink. 8. According to Mr.M.R.Murugesan, learned counsel appearing for the appellant, the trial court has found that there is no evidence to show that the temple was installed by the Grand Father Venkatachalam or Father V.Prithiviraj @ V.P.Raj of the respondent / plaintiff in the year 1904 or 1905, as stated by the respondent in the plaint and in his deposition and further, there is a clear admission by the respondent that there was a public worship and hundial was also their for collecting 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, so as 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 522 2. Hindu Religious and Charitable Endowment (A) Department vs. N.Sivarawajan Nadar, 2001 (2) CTC 513 3. Gedela Satchidananda Murthy vs. Dy. Commr., Endowments Deptt., A.P, 2007 AIR SCW 3482. 9. In Gedela Satchidananda Murthy vs. Dy. Commr., Endowments Deptt., A.P, reported in 2007 AIR SCW 3482, it has been held as follows : " We have noticed herein before that the Act itself recognizes Samadhi. A religious institution, thus, includes a Samadhi. When it is established or maintained for public purpose together with a temple, it would indisputable come within the purview of the said definition of the said terms." As per this Judgment, even a Samadhi worshipped by public is construed only as a religious institution. In the aforesaid Judgment, the Hon'ble Supreme Court has held that merely because the appellant has residential house in a portion of the property, it cannot be said that the same is outside the purview of the H.R. & C.E., Act. 10. This Court in the decision, Hindu Religious and Charitable Endowment (A) Department vs. N.Sivarawajan Nadar, reported in 2001 (2) CTC 513, has held that as per Section 6(20) of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, onus of proof lies on the person alleging that the institution is a private temple and not a public temple. In this suit, the respondent, being the plaintiff, has claimed the suit temple as a private temple and therefore, the onus of proof 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 is located is easily capable of being demarcated from the rest of the building. So, no possible difficulty can arise by declaring the temple a public temple and rest of the building and the bakery to be the private property of the appellant and the other Gurukkals, if any. " 12. In the instant case, though the respondent / plaintiff has pleaded that Sri Panchatshara Karumariamman idol was installed in the year 1905 by his father, there is no evidence to show that the same was installed 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 documents marked by the respondent, such as property tax, receipts for electric consumption charges, water tax and other documents would not be sufficient to establish that the suit temple is a private temple belongs to the respondent / plaintiff. The respondent / plaintiff has admitted in his evidence that he got patta on 18.01.1988, only subsequent to the filing of the suit. The sketch prepared by the respondent / plaintiff marked as Ex.A.8 is also a self-served document. 13. It is not in dispute that the respondent / plaintiff had filed an application in O.A.No.20/82 before the Deputy Commissioner (Judicial), H.R.& C.E., Administration Department, Chennai-34, under Section 63(a) of the Tamil Nadu H.R. & C.E., Act (22 of 1959). It is only a typed paper, erroneously certified as xerox copy by the learned counsel for the plaintiff, which contains no signature or seal of the Deputy Commissioner, H.R. & C.E., Department or any other officials of the appellate department. Even as per this document, only based on the report, Ex.C.1, filed by the Inspector, H.R. & C.E., Department, it has been decided by the first appellant that the respondent is not entitled to the declaration sought for. The appeal preferred against the said order under Section 69(1) of H.R. & C.E., Act was also dismissed by the second respondent. 14. From the evidence available on record, it is clear that there are idols of Sri Panchatshara Karumariamman, Sri Vinayagar and Lord Murugan and there was public worship and also hundial in the premises of the temple and subsequently, the hundial had been removed. In Ex.A.9, alleged partition deed, nothing had been stated about the idols and other description. Therefore, it could be construed that there is a deliberate suppression of idols and physical features of the temple and in other words, the document is not related to the suit property. 15. The trial court, without considering the evidence and the legal aspects, has erroneously decreed the suit as prayed for by the respondent. In such circumstances, this Court is of the view that the appeal has to be allowed and the impugned Judgment and Decree of the trial court has to be set aside. 16. In the result, the appeal is allowed with costs, confirming the orders passed by the appellants and the Judgment and Decree passed by the Court below are set aside. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ tsvn To 1. 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 https://hcservices.ecourts.gov.in/hcservices/