IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.06.2008 CORAM : THE HONBLE MR. JUSTICE S.TAMILVANAN A.S.No.516 of 1996 1. The Leigh Bazaar Merchants Association Ltd., Salem  9, rep. by its Secretary A.Jayaseelan, S/o. Arumuga Mudaliar having its Regd. Office at III Road, Leigh Bazaar, Salem  9. 2. The Committee of Trustees of Kaliamman Koil, Sandaipettai, Salem-2, rep. by its President V.R.Venugopal Chettiar, Businessman, Leigh Bazaar, Salem  9. .... Appellants vs. 1. The Commissioner Hindu Religious and Chatirable Endowment (Admn) Dept. having its Office at 119, Nungambakkam High Road, Nungambakkam, Madras  34. 2. The Assistant Commissioner Hindu Religious and Charitable Endowments Suramangalam Main Road, Near Woodlands Hotel, Salem  4. 3. The Executive Officer Hindu Religious and Charitable Endowment (Admn) Dept, Arulmighu Mariamman Koil, Salem  1. .... Respondents Appeal filed against the Judgment and Decree, dated 30.04.1996 made in O.S.No.285 of 1996 on the file of the Sub-Court, Salem. For Appellants : Mr.K.Doraisami, Senior Counsel for Mrs.Muthumani Doraisami For Respondents : Mr.M.R.Murugesan, Spl.G.P. JUDGMENT This appeal has been preferred against the Judgment and Decree dated 30.04.1996 made in O.S.No.285 of 1996 on the file of the Sub-Court, Salem. 2. The appellants herein were the plaintiffs in the suit. The suit was filed against the order dated, 11.04.1986 passed by the Commissioner, H.R & C.E., Chennai, the first respondent herein in A.P.No.49 of 1982, seeking a decree for setting aside the order, and for permanent injunction, restraining the respondents herein not to interfere with the management of the affairs of the suit temple. 3. According to the appellants, the first appellant is a company incorporated under the Indian Companies Act, being managed by its Board of Directors, elected as per Rules and Regulations of the Company and represented by its elected Secretary. The first appellant has stated that the Company is a welfare organisation, started for the protection and promotion of the trading interest of its members, as per its Articles and Memorandum of Association and bye laws, which provides inter alia, for the management of the affairs of the suit temple, owned by it. In the plaint, the appellants have further averred that the suit temple called "Kaliamman Temple" was constructed and owned by the appellants' association in a portion of the land belonged to it, situated at Sandaipettai Main Road, Sevvapet, Salem, that about 120 years ago, there was a snake putru (ant hill) in the aforesaid land, which was worshipped by the members of the first appellant-association. In or about 1958, at the time of re-survey and settlement, the trustees appointed by the appellants' association, by virtue of the resolution, dated 23.05.1958, 1) Sundaram Chettiar, s/o. Srirangam Chettiar, 2) Arumugam Chettiar, s/o. Manickam Chettiar and 3) one Alwar Naidu were appointed by the first appellant to look after the entire management and affairs of the suit temple. 4. According to the appellants, during the enquiry of Survey Resettlement, the Survey Department officials wrongly noted the name of the trustees in the settlement and pattas, by quoting the father's name of the said persons wrongly, due to clerical mistake, though the persons, then acting on behalf of the first appellant's association were only the aforesaid members. Soon after the mistake came to the knowledge of the first appellant, steps were taken by the association before the Estate Manager, Salem, and it was transferred in the name of the first appellant, by virtue of order, dated 23.11.1973. According to the appellants, the Association had put up constructions and installed idols of Madurai Veeran and also Sannathis of Vinayagar, Anchaneyar and Natarajar and three years prior to the date of filing of the suit, Vimana Gopuram of the main deity was also constructed by the first appellant. "Mahakumbabishekam" was performed on a grand scale by raising huge funds collected from the members of the first appellant. 5. According to the appellants, there was no dedication or any public contribution for the suit temple, nor any hundial is installed and no money was collected from the public, hence, it is a private temple. The appellants have averred that the Assistant Commissioner, H.R & C.E., (Admn) Salem  4, pursuant to his proceeding had sent a notice, calling upon the first appellant to hand over the temple administration to the Executive Officer, the third respondent herein, for which the first appellant sent a reply notice on 22.09.1978 and also filed a petition on 03.10.1978 before the Assistant Commissioner, Salem to drop the Proceedings in ROC.11538/78/A1/ dated 3.11.78. The Assistant Commissioner, H.R. & C.E., Salem, the second respondent herein, by his order, dated 23.02.1979, directed the appellants to file a petition to the Deputy Commissioner, H.R & C.E., under Section 63 (a) of the H.R. & C.E., Act, for seeking appropriate relief, stating that the second respondent has not been empowered to act under Section 63 (a) of the said Act. 6. The first appellant took steps against the order passed by the second respondent before the Deputy Commissioner, H.R & C.E., Act, for declaration that the suit temple is not falling within the purview of Section 6 (20) of the Act. However, the Deputy Commissioner, held that it is a public temple and hence, the first appellant preferred an appeal under Section 69(1) of H.R. & C.E., Act (Act 22/59) against the order of the Deputy Commissioner, H.R & C.E., Coimbatore in O.A.77/79, dated 28.01.1981 and before the Commissioner, H.R & C.E., Chennai, in Appeal 49/82. The Commissioner, H.R & C.E., the first respondent herein by his order, dated 11.04.1986 held that the suit temple is a public temple and therefore, the appellants filed a statutory suit. 7. According to the respondents, the appellants' association is nothing to do with the suit temple. The respondents have denied the contention of the appellants that the suit temple was owned by them and also situated in a portion of the land, belonged to the association. The respondents further contended that the suit temple is an ancient temple, which is in existence for several decades before the inception of the association of the appellants, hence, it is a public temple worshipped by vast general public. According to the respondents, the appellants' association has nothing to do with the function and affairs of the suit temple as private temple and the construction and other developmental activities of the temple, were made only from the public contribution. It has been further stated that the festivals and Mahakumbabishekam, relating to the temple would attract the provisions under Section 6(20) of the Tamil Nadu Hindu Religious and Charitable Endowment Act and urchava idol is being taken by possession and festivals are celebrated with the contributions of the public. With the above averments, the respondents have pleaded for the dismissal of the suit. 8. Considering the oral and documentary evidence and also the arguments advanced by both sides, the trial Court held that the first appellant association is not entitled to the relief sought for in the suit and accordingly, dismissed the same with costs. Aggrieved by which, this appeal has been preferred by the plaintiffs in the suit. 9. Based on the grounds of appeal, with reference to the impugned Judgment, the following points for determination are framed : 1) Whether the appellants have established that the suit temple is a private temple, belongs to the first appellant ? 2) Whether the appellants are entitled to the relief sought for in the suit ? 10. Mr.K.Doraisami, learned Senior Counsel appearing for the appellants submitted that the suit temple has been constructed in the patta land, belongs to the first appellant association. According to him, a snake putru (ant hill) had been developed into a temple, by way of various constructions by the appellants, however, it was not considered by the Court below. The learned Senior Counsel further submitted in his arguments that there was neither hundial, nor any public contribution and the festivals were conducted by the appellants out of their own funds and therefore, it is a private temple, not falling within the definition of Section 6(20) of Tamil Nadu Hindu Religious and Charitable Endowment Act. According to the learned Senior Counsel for the appellants, public are being allowed to worship the deity, only owing to the centiments prevailing among the Hindu community and therefore, considering the same, he pleaded for allowing the appeal. 11. Per contra, Mr.M.R.Murugesan, learned Special Government Pleader appearing for the H.R. & C.E., Submitted that there is no evidence to show that the temple was constructed by the first appellant-association. Even as per the pleadings of the appellants, the alleged snake putru (ant hill) has been a place of worship for about 120 year, though the first appellant's association was registered only in the year 1955. According to the learned Special Government Pleader, the first appellant's association has been created for the welfare of the members of the Leigh Bazaar Merchants association, Salem, having its members belonging to various religions. According to the respondents, the suit temple is in existence from time immemorial in the public place. Only on public contribution, development of the temple is being made and the festival and Mahakumbabishekam of the suit temple would attract the provision under Section 6(20) of the Tamil Nadu H.R & C.E., Act. With the above submissions, learned Special Government Pleader submitted that there is no error on the part of the court below in dismissing the suit with costs. 12. As per the decision of this Court, in Thanumalayaperumal Mudaliar vs. Commissioner, Hindu Religious and Charitable Endowments (Admn) Dept, reported in 88 LW 649, it has been held that three guidelines which enables the courts to decide whether a particular religious institution comes within the scope of S.6(20) of the Tamil Nadu H.R & C.E., Act. In order toe decide a public temple, it should be a place of public worship, there should be acceptable proof of dedication for the benefit of the Hindu Community or a section thereof and incidentally it should also be established that the worshippers have been using as of right the religious institution as a place of public religious worship. 13. As per the ruling of this Court in Commissioner for H.R & C.E., vs. Swamikeela Arasalwar Dharman etc, reported in 96 LW 548, there should be proof of user of the temple for public is of right without interference, for which there should be cogent evidence and there has been a dedication in favour of the public. 14. In T.D.Gopalan vs. Commr., H.R. & C.E., Madras, reported in AIR 1972 SC 1716, the Hon'ble Supreme Court has held as follows : "The origin of the temple, the manner in which its affairs are managed, the nature and extent of the gifts received by it, rights exercised by devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple are factors that go to establish whether a temple is public or private." 15. Learned counsel appearing for the appellants also relied on the decision, Board of Commissioner, H.R. & C.E., Madras, vs. Sama Rao, reported in 67 LW 789. As per this decision rendered by a learned single Judge of this Court, under Section 9, burden lies upon the party, who claims the temple to be public one to prove the requirements of the definition. 16. However, it is not in dispute that the aforesaid decision is not applicable, after the amendment of Tamil Nadu H.R & C.E., Act, 1959. In Hindu Religious and Charitable Endowment (A) Department, vs. N.Sivarawajan Nadar, reported in 2001 (2) CTC 513, this Court has held that under Section 6(20) of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959, onus of proof lies on the person alleging that the temple under consideration is private temple and not a public temple. It is not in dispute that the appellant / plaintiff has filed the suit, claiming the suit temple as a private temple belongs to the first appellant and therefore, even as per Indian Evidence Act, the burden is heavily upon the appellants / plaintiffs to establish that it is a private temple belongs to the first appellant. 17. In Pichai vs. Commissioner, H.R & C.E., reported in 1971 MLJ 166, as per Section 6(20) of H.R & C.E., Act, the definition of "temple" has been stated as follows : "The definition of "temple" contemplates following conditions, namely, "temple" means "place by whatever designation known used as a place of public religious worship (1) and dedicated to the Hindu community or any section thereof as a place of public religious worship; or (2) and dedicated for the benefit of the Hindu community or any section thereof as a place of public religious worship; or (3) and used as a right by the Hindu community or any section thereof as a place of public religious worship." 18. In the decision, Lakshmiamal vs. Ramalingam Chettiar, reported in 1992 MLJ 93, this Court has held that the person, who claims a temple to be a private one should establish the same. Therefore, it is well settled by various decisions that the General presumption is that a temple is a public one, until the contrary is proved. Whoever claims the temple to be a private one should prove the same, that it is a private temple, otherwise, the temple should be construed only a public one. 19. In the instant case, in order to establish the claim of the appellants / plaintiffs, P.W.1 was examined, apart from marking documents, Exs.A.1 to A.96. On the side of the respondents, D.W.1 and D.W.2 were examined and Exs.B.1 to B.14 were marked. The appellants as plaintiffs have stated at paragraph number VI of the plaint as follows : "It is submitted that about 120 years ago there was a snake putru (ant hill) in the aforesaid land and this was worshipped by the members of the first plaintiff's association." 20. Admittedly, the first appellant-association was registered only in the year 1955. Therefore, the averments that the snake putru (ant hill) was worshiped by the members of first appellant- association, prior to its formation, since 120 years cannot be accepted. It is clear that the appellants have categorically admitted that there was a snake putru (ant hill) for about 120 years back, which was a place of worship and at that period of time, the appellant's association could not be in existence and therefore, the members of the first appellant could not be the worshippers of the temple. According to the appellants, in or about in the year 1958, at the time of re-survey and settlement, the trustees were appointed by the first appellant, by virtue of the resolution, dated 23.05.1958. During Survey Resettlement enquiries, the Survey Department officials wrongly stated the name of the trustees in the settlement and pattas, issued by them. Accordingly, patta was issued in the name of 1) Sundaram Chettiar, 2) Arumugam Chettiar and 3) Alwar Naidu and subsequently, steps were taken by the first appellant before the Estate Manager, Salem and it was then transferred in the name of the first appellant, by virtue of order, dated 26.11.1973. Though the place of worship, according to the appellants is in existence for about 120 years, only on 26.11.1973 patta was transferred in the name of the first appellant. 21. Ex.B.2 is the certified copy of the order passed in O.A.No.463 of 1937 by the Board of Governors for Hindu Religious Endowment, Madras, wherein the Board's Order No.2646, dated 01.10.1938 has been referred. The matter relates to Sri Kaliamman Temple, Sandaipettai Main Road, Sevvapettai, Salem Town, Salem District. After a detailed enquiry, the Commissioner had passed an order that the Temple cannot be decided as a private temple belongs to Sevvapettai Merchants Association Limited, as per Section 9 of the old Act. In the aforesaid order, it has been clearly specified that the said matter relates to "Sri Kaliamman Temple", Sandaipettai Main Road, Sevvapettai, Salem Town, Salem District. The evidence available would clearly show that it is none other than the suit temple. The Sevvapettai Merchants Association, presently named as Leigh Bazaar Merchants Association Ltd., Salem was a party to the said proceedings. 22. P.W.1, who was examined on the side of the appellants herein, has admitted in his evidence that patta was transferred in the name of the association in the year 1973 and according to him, he did not know whether there was any proceeding initiated by the merchants association in the year 1938 or not. When Ex.B.2 was produced before the witness, he denied the same saying that it was not related to the suit temple. According to him, O.A.No.463 of 1937 is not related to the suit temple. Even, he denied the suggestion that it relates to the suit temple and the proceedings was initiated by the first appellant- merchants association. 23. Ex.A.1 is the memorandum of association of the first appellant. Its Register Number is stated as 4/1935. In the memorandum of association, at the first page itself, it has been printed that the association was registered in the year 1935 under the Companies Act, 1913 in the name of Sevvapettai Merchants Association Ltd., and the Register Number was 4/1935. Subsequently, on 05.09.1966, the name was changed as Leigh Bazaar Merchants Association and therefore, it is clear that Ex.B.2 order relates to the suit temple and the first appellant was a party to it. The 23rd Annual Report of Sevvapettai Merchants Association for 1957 to 1958 has been marked as Ex.A.32. 24. So far as the public worship is concerned, D.W.1 has stated that he did not know, whether the general public used to worship the temple. He has further stated that if they worship, it would not be prevented. According to him, Leigh Bazaar Merchants Association and their family members are entitled to the suit temple and that they collected money only from the members of the appellants' association for constructing Gopuram. However, the appellants have not produced any documents or registers containing the names of all the members of the Association. Similarly, the appellants have not produced the account books relating to the donations or subscriptions obtained from the persons, in order to find out, whether contributions were obtained only from the members of the association or from the general public. He has admitted that mill-owners of one Annamalai Cotton Mills were not members in the first appellant-association and he denied the suggestion that they spent amount for construction of the temple and for performing Kumbabishekam. 25. As per Ex.A.15, it is seen that the first appellant association was registered under the Companies Act and P.W.1, has also admitted that the details about Directors and the members of the association are available with the association, however, the same were not produced for the reasons best known to them. According to him, once in a year, subscriptions are being collected and that there were 150 members in the association. It was suggested to the witness that whether there are Muslims and Christians, other than the members of the Hindu community in the association, since the first appellant is only a merchants association. As per Ex.A.1, memorandum of association, it is seen that there is no restriction for persons becoming members of the association, irrespective of their religion. 26. Mr.M.R.Murugesan, learned Special Government Pleader appearing for the respondents would contend that the list of Directors and other members of the association has not furnished by the appellants, since there are members in the association from various religions, other than Hindus. As contended by the learned counsel appearing for the respondents, if there are persons other than Hindus in the first appellant -merchants association, they may not have interest in performing poojas and other festivals in the suit "Kaliamman Temple" and the appellants cannot claim exclusive right as their Private Temple. 27. P.W.1 has admitted in his cross-examination that partners of one Jagannatha Chettiar and Co., are members in the appellant's association and his son is a Director in the first appellant association, though he had converted himself to Christianity and the said person and his brother got married in a church. He had denied that one M.O.Basheer Khan was not a member in the first appellant- association. However, as per the evidence of the respondents witnesses, even non-Hindus are members in the merchants association of the appellants. 28. It is seen that Ex.B.12 is a printed voters list of Leigh Bazaar Merchants Association, the first appellant herein, wherein in Sl.No.142, one G.Moses, Sl.No.164, Badshah traders company proprietor, A.M.Badshah Khan and Sl.No.180, Annai Traders, Proprietor, Francis Raja are stated as members. 29. In the instant case, though the appellants have stated that the suit temple was a place of worship for about 120 years, on the date of filing of the suit, they have not produced any supporting documents to show, as to who originally constructed the temple at the place of worship, while it was a snake putru (ant hill). It cannot be disputed that the land was originally a poromboke land and then, during Survey Resettlement, patta was issued in the name of three persons. Subsequently,it was transferred in the name of the first appellant temple, only by virtue of an order, dated 26.11.1973. As per the verdict of the Hon'ble Apex Court, reported in AIR 1972 SC 1716 (cited supra), the origin of the temple has to be established to be construed as a private one. In the instant case, the appellants have not established the origin of the temple, with reference to the appellants' association. 30. Per contra, the evidence of the appellants themselves would go to establish that the temple was in existence long prior to the formation of the association, consequently, the management of the temple could have been with the members of the association at the inception and thirdly, there is absence of any endowed property solely by the first appellant. According to the respondents, there was contribution from the public for constructing Gopuram and performing Kumbabishekam and other festivals. As the burden lies on the appellants, who claim the suit temple as a private temple, the appellants should have established that entire contribution was made and collected only from the members of the association to construct the Gopuram and perform Kumbabishekam and other festivals. The appellants have not produced any authenticated documents containing names of all the members of the appellant association for the reasons best known to them. Similarly, in order to establish that the huge amount was collected for the construction, Kumbabishekam and other festivals, only from the members of the Association, as alleged by the appellants, relevant account books were not produced. 31. It has been established that non-Hindus are also members in the first appellant, merchants association and the evidence available on record would also show that general public worship the temple, as a matter of right and not on any permission granted by the appellants. In such circumstances, I am of the view that the appellants have not established that the suit temple is a private temple, belongs to the appellants' association. 32. As per Ex.B.2 and the evidence available on record, it has been established that as early as in the year 1937, Sevvapettai Merchants Association Ltd., presently, called as Leigh Bazaar Merchants Association Ltd., had filed a petition in O.A.No.463 of 1937, before the Board of Commissioner for Hindu Religious Endowment, Madras and by the Boards Order No.2646, dated 01.10.1938, after enquiry, it was held that the suit temple is not a private temple and the said order has also reached its finality. As discussed earlier, the evidence available on record would clearly establish that Sri Kaliamman Temple, Sandapettai, Sevvapettai Main Road, Salem Town, Salem District mentioned in Ex.B.2 is the suit temple herein and the Sevvapettai Merchants Association Ltd., has been renamed as the appellants' association, as per the provisions of Companies Act and therefore,