Andhra HC (Pre-Telangana)
Babulal Yadav Bhoriwala And Ors. vs The Assistant Commissioner Of ... on 5 April, 1996
Equivalent citations: 1997(4)ALT344
Author: V. Bhaskar Rao
Bench: V. Bhaskar Rao
JUDGMENT N.Y. Hanumanthappa, J.
1. This appeal is directed against the judgment and decree passed by the Chief Judge, City Civil Court, Hyderabad in O.S. No. 212 of 1982, dated 10-3-1986 filed Under Section 78 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966, where by the learned Chief Judge confirmed the order passed by the Deputy Commissioner of Endowments i.e., the 2nd respondent herein, in O.A. No. 68 of 1981, dated 3-2-1982, wherein he had refused to declare the suit temple (Santoshimatha and Durgamatha temple) as private temple.
2. A few facts, which are necessary to dispose of this appeal, are as follows:-
In this appeal, the rank of the parties is referred to as Plaintiff and Deputy Commissioner of Endowments.
3. The plaintiff filed an application Under Section 71(1) (b) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, hereinafter referred to as Act No. 17 of 1966, before the Deputy Commissioner of Endowments to declare the Santoshimata Temple at premises No.15-7-276/1, Muslim Jung Bridge, Hyderabad as private temple belonging to the plaintiff. The reason for him to approach the Deputy Commissioner to declare the said temple as private temple was that the Assistant Commissioner of Endowments in his Proceedings R.C. No. D/1010/80, dated 7-4-1980 appointed the Board of non-hereditary trustees to the temple in question including the plaintiff as one of the trustees. Before the Deputy Commissioner of Endowments, it was contended that the plaintiff by name Babulal Yadav Bhoriwala son of Mohanlal wanted to devote his entire life seeking solace. As such, he has purchased a site adjacent to his house under registered sale deed, dated 2-1-1970, which is marked as Ex.A-1, with the following schedule:-
SCHEDULE OF THE PROPERTY Low lying vacant land of a part of No. 15-7-277/2 with a private 'Gudi' on it, admeasuring (33.7 x 38) square feet situated at Muslim Jung Bridge, Hyderabad (A.P.) as shown in the Plan annexed herewith is bounded by:
East : Common open space leading to Omkarnath Temple West : House of Narasimhachary North : Common Passage leading to public road South : Property of Narsimhachary.& "
The plaintiff purchased the site from one Narayan Gir, son of Ramajivan Gir, residing at 15-7-277/2, Begum Bazar, Muslim Jung Bridge, Hyderabad as guardian of Suryakant Gir, s/o Sankan Chaila Tuljagir. A copy of the said sale deed was marked before the Deputy Commissioner as Ex.A-1 and in condition No. 2 there is a mention about the existence of 'gudi' and it reads as follows:-
"2. The land is low level land, adjacent to the Moosi River and as the Vendee expressed his intention to level up the land and wanted to construct a temple for the worship of his family members the vendor agreed to sell the schedule ancestral land along with a private 'gudi' to the vendee for a consideration of Rs. 90/- (Rupees ninety only) to meet the legal necessities of the owner of the schedule property."
Pursuant to the sale deed, the plaintiff was put in possession of the scheduled property. He has purchased the said temple as he is taken to religious activities and he purchased the said property together with the temple so that he and his family members could perform pooja. After purchase of the suit temple, he brought idols of Santhoshi Mata and Durga Mata from Jaipur and they were installed in the temple on 21-4-1970. The temple bears the inscription of the plaintiff. The expenditure for purchasing the site, construction cost of idols and their installation was met by the plaintiff. At no time, the plaintiff collected amounts from the public for such purchase, installation, construction, etc. The temple started attracting the public as it is in a busy place. Though he was not under an obligation to allow the public to enter the temple and offer prayers, but as a man of pious sentiments he did not prevent the public to come to the premises and perform poojas. This resulted in Assistant Commissioner of Endowments passing an order, dated 7-4-1980 appointing the Board of non-hereditary trustees including the plaintiff. Inspite of such appointment, the plaintiff alone is continued to be in exclusive management of the temple. None of the Board of non-hereditary trustees appointed by the Assistant Commissioner of Endowments took charge of the temple or its affairs. The temple is not an ancient one, but it is a recent one. As the appointment of Board of non-hereditary trustees was incorrect and as by virtue of the same the Endowment Department wanted to lay its hands on the temple saying that it is a public temple, the plaintiff thought that it is better to get the dispute resolved once for all as to whether the temple is a private temple or public temple. Accordingly, he filed an application in O.A. No. 68 of 1981 Under Section 71(1) (b) of the Act No. 17of 1966 to declare the temple in question as private temple. To establish his case, the plaintiff gave both oral and documentary evidence. He examined himself as P. W. 1 and got examined two other witnesses as per P.Ws. 2 and 3 and got marked Exs.A-1 to A-8. All the witnesses examined on behalf of the plaintiff spoke about the nature of the scheduled property, the plaintiff's exclusive possession and enjoyment of the property,installation of idols in the temple, their up-keep and about the construction, for which expenditure was met by the plaintiff out of his pocket. Ex.A-1 is the sale deed under which the plaintiff purchased the suit schedule property from one Narayan Gir, son of Ramajivan Gir. Exs.A-2 and A.3 are the bills towards the charges for obtaining permission from the Municipality for construction of the temple in the suit property. He also produced Ex.A-4, a registered sale deed under which a bit of land was purchased by the plaintiff. Plan of the premises is marked as Ex.P-5. The photo of the idols is Ex.P-6 and the tax receipt is marked as Ex.P-7. The plaintiff has also got marked Ex.P-8, which is the permission granted by the Municipe-1 Corporation of Hyderabad for construction of store room. In the evidence of these witnesses, nothing was elicited to say that the premises were dedicated to public.
4. To deny the claim of the plaintiff, the Assistant Commissioner submitted his remarks stating that the plaintiff has purchased the premises in the year 1970 and installed the idols of Sri Santhoshi Matha and Sri Durgamatha after having purchased them from Jaipur and the expenditure towards purchase of idols, their installation and construction charges were met by the plaintiff himself. He further stated that the plaintiff constructed the temple for worshipping by the family members and not for the public purpose. The non-hereditary trustees have elected the plaintiff as their Chairman. The plaintiff has appointed a poojari to perform pooja in the temple and his salary is being paid by the plaintiff himself. He also reported that the suit temple has been registered in the year 1980 as required Under Section 38 of Act No. 17 of 1966. The Deputy Commissioner of Endowments considered the evidence on record and came to the conclusion that the plaintiff has admitted in his evidence that he has appointed a poojari for performing pooja and constructed a small room to store pooja materials and that he never objected the public to enter the temple and to perform poojas and the devotees offer milk, bananas and prasadam to the deity. From the above evidence, the Deputy Commissioner held that the temple in question is a religious temple of Hindu denomination having permitted the public to enter the premises and has attained the traits of a public temple. The temple is located in a busy area which is on the road side in Muslim Jung Bridge area. Generally, public comes to the temple in large numbers on Fridays. They enter the premises of the temple without anybody's permission. These are the factors which established that the temple in question is a public temple. Thus, the Deputy Commissioner of Endowments held that the temple in question is a public temple and not a private temple and accordingly, he dismissed the plaintiff's application in O.A. No. 68 of 1981 by his order, dated 3-2-1982.
5. Aggrieved by the order of the Deputy Commissioner of Endowments, dated 3-2-1982 passed in O.A. No. 68 of 1981 dismissing the application, the plaintiff has filed a suit in O.S. No. 212 of 1982 on the file of the Chief Judge, City Civil Court, Hyderabad Under Section 78 of A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966. In the plaint, the plaintiff while reiterating the averments made in the application in O.A. No. 68 of 1981 on the file of the Deputy Commissioner of Endowments has alleged that the order of the Deputy Commissioner is quite incorrect and it is not in conformity with Section 77 of Act No. 17 of 1966 and contended that appointment of Board of non-hereditary trustees did not take away the plaintiff's right to make use of the property in question as his own. Mere nominating him as Chairman of Board of Trustees has in no way abridged his right of ownership over the property. Even otherwise, the so called appointment of Board of non-hereditary trustees made in the absence of the plaintiff is not binding on the plaintiff. However, the same was refuted by the Deputy Commissioner of Endowments.
6. The Deputy Commissioner of Endowments had filed the written statement. It was averred in the written statement that the temple in question satisfies all the requirements of a public temple as the public are worshipping and making prayers to the presiding deity in the suit temple. Though the suit temple has no Gopuram and Mandapam, public in large numbers are worshipping and making offers and these circumstances are sufficient to establish that the temple in question is a public one so as to bring the temple in question within the ambit of Act No. 17 of 1966. When it is a public temple, the public have a right to ask for accounts and take steps regarding management of the temple. A Board of Trustees was constituted and the plaintiff was made as Chairman. The plaintiff also filed an application seeking registration of the temple in the book of Endowments, wherein the plaintiff admitted the temple in question as public temple. On the basis of the evidence on record, the Deputy Commissioner rejected the application of the plaintiff for declaring the temple in question as private temple.
7. On the basis of the pleadings, the trial Court framed the following points for consideration:-
"1. Whether the suit temple is a private temple? and
2. To what relief the plaintiff is entitled?"
8. To establish the case of the plaintiff, he got examined three witnesses. Plaintiff himself was examined as P.W. 1 and other two witnesses as P.Ws.2 and 3. Four documents were marked as Exs. A-1 to A-4. Ex. A-1 is the registered sale deed, Ex. A-2 is the copy of the order passed by the Deputy Commissioner, Ex.A-3 and A-4 are the tax receipts. On defendant's side, four persons were examined as D.Ws. 1 to 4. 21 documents were marked as Exs.B-1 to B-30. Ex.B-1 and B-2 are the marked portions in the deposition of Plaintiff before the Deputy Commissioner of Endowments, Ex.B-3 is the registration certificate of suit temple, Ex. B-4 is the certificate issued to the President of the Committee on suit temple, Ex.B-5 is the application filed by the plaintiff for registration, Ex.B-6 is relating to particulars of other persons submitted to Endowments Department, Ex.B-7 is the plan of the suit temple, Ex.B-8 is the Gazette notification, Ex.B-9 is the report of the Inspector regarding service of notification, Ex.B-10 is the application submitted by plaintiff for inclusion of the name of its trust board, Ex.B-11 is the order constituting trust board, Ex.B-12 is the report of Inspector about oath administered to the trustees, Ex.B-13 is the form of oath signed by the plaintiff as Chairman of the trust, Ex.B-14 is relating to the election of the plaintiff as Chairman recorded by the office, Ex.B-15 is the report of the inspection, Exs.B-16 to B-21 are the forms of oath administered by the members, Exs.B-22 to B-27 are the applications filed by trustees in person, Ex.B-28 is the report of the inspection, Ex.B-30 is the application filed by the plaintiff to the Assistant Commissioner, dated 13-3-1980. The trial Court after appreciating the entire evidence declared the temple in question as public temple by giving reasons as under:-
"So taking into consideration the totality of the evidence and the fabricated nature of the evidence of P.Ws. 1 to 4 and considering the documentary evidence and the evidence of D.Ws. 1 to 4 I hold that the plaintiff has failed to make out a case that the suit temple is a private temple. Having applied for trusteeship and having filed the application for registration of the suit temple and having made an admission that it is a temple dedicated to the public the plaintiff cannot be permitted to get against his own admissions to have control over the management of the suit temple for his personal gains. Under these circumstances, I hold on issue No. 1 that the suit temple is not a private temple and the order passed by the Deputy Commissioner, Endowments, Hyderabad is correct."
Thus, the trial Court declared the temple in question as public temple and not a private temple and dismissed the plaintiff's suit.
9. Sri Koka Raghava Rao, learned Counsel for the appellant has urged that the approach of the Deputy Commissioner of Endowments and the Court below to reach the conclusion that the temple in question is a public temple and not a private temple is quite incorrect and arbitrary. Both the Deputy Commissioner of Endowments and the Court below have erred in not appreciating the entire evidence on record, particularly the report of the Assistant Commissioner of Endowments supporting the case of the plaintiff. The Deputy Commissioner of Endowments committed a mistake in declaring the temple in question as public temple without holding the report of the Assistant Commissioner of Endowments as incorrect. Mere giving an ¦ application seeking registration of the temple in the Book of the Endowments Department is not sufficient to hold that the temple in question is a public temple unless an order as required under the provisions of Act No. 17 of 1966 is passed. He further submitted that the evidence adduced by the plaintiff as per P.Ws. 1 to 3 and the documentary evidence clearly established that the temple in question is a private temple and not a public temple. To support his contentions, the learned Counsel for the appellant has relied on certain authorities, which will be adverted to a little later.
10. As an answer to the contentions made by the learned Counsel for the appellant, Smt. Swarna Reddy, learned Government Pleader for Appeals has submitted that the order of the Deputy Commissioner of Endowments and the judgment of the lower Court dismissing the plaintiff's suit are quite perfect and valid. The plaintiff having admitted in his representations that the temple in question is attracting large number of devotees and the public are giving their offerings, now he cannot say that the temple in question is a private temple and the authority and the Court below are right in declaring the temple in question as public temple. The conduct of the plaintiff in giving representations to the authorities requesting them to declare the temple as a public temple has estopped him from subsequently contending that it is a private temple and not a public temple. If the temple in question is presumed to be a private temple, there was no reason for the plaintiff to give so many representations to the authorities to declare the temple as a public one. The socalled report of the Assistant Commissioner of Endowments supporting the case of the plaintiff was rejected, which is clear from its non-consideration by the Deputy Commissioner of Endowments. To support her contentions, she submitted that the presence of 'dhwaja stambham' or 'gopuram' are relevant to reach the conclusion whether a particular temple is a public temple or a private temple. To determine whether a particular temple is a public temple or a private one, she requested us to go through the observations made by the learned single Judge of this Court in Commissioner, A.P. Charitable and Religious Institutions and Endowments Department, Hyderabad and Anr. v. Vijendra Kumar and Ors., , wherein it was held that there is a presumption that the temples in South India are public and the onus of proof is on the person asserting it to prove that it is a private temple and it was further held as follows:-
"The mere fact that the plaintiffs obtained permission from the Municipality and made alterations from time to time and paid property tax to the premises does not show that it is a private temple. It may be true, as observed by the learned Chief Judge, that being a public temple the plaintiffs might have claimed exemption from payment of property tax. That is a right vested in the plaintiffs to have claimed such an exemption from the property tax and the mere fact that they have not exercised that right by claiming exemption from the payment of property tax does not take the temple away from out of the character of a public temple. The payment of electricity charges by the plaintiffs is not relevant to determine whether the temple is a public temple or a private temple."
Thus urging, she sought that the appeal be dismissed with costs. It is said that the judgment in Commissioner, A.P.C. and R.I. and E. Department case (1 supra) is under challenge before this Court. As such, we do not like to say anything on the correctness or otherwise of the view taken by the learned single Judge.
11. In order to understand whether a particular temple is a private one or a public one, it is proper to bear in mind some of the provisions of the Act, particularly which deal about the religious endowments and institutions. Section 2, sub-section (20) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 deals with the term 'religious charity', which is defined as under:-
"(20). Religious charity means a public charity associated with a Hindu Festival or observance of a religious character, whether connected with a religious institution or not."
Section 2, sub-section (21) of the Act defines the term 'religious endowment' as under:-
"(21). 'Religious endowment' means property belonging to or given or endowed for the support of a religious institution, or given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity; and includes the institution concerned and also the premises thereof; but does not include gifts of property made as personal gifts to the archaka, service holder or other employee of a religious institution."
In the explanation to Section 2, sub-section (21) of the Act, it has been explained as follows:-
"Explanation:- Property which belonged to or was given or endowed for the support of a religious institution, or which was given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity shall be deemed to be a religious endowment within the meaning of this definition, notwithstanding that, before or after the commencement of this Act, the religious institution has ceased to exist or ceased to be used as a place of religious worship or instruction or the service or charity has ceased to be performed."
section 2, sub-section (22) of the Act defines 'religious institution' as follows:-"
(22). 'religious institution' means a math, temple or specific endowment and includes a Brindavan, Samadhi or any other institution established or maintained for a religious purpose."
section 2, sub-section (24) speaks about 'specific endowment' and it reads as follows:-
"(24). 'specific endowment' means any property or money endowed for the performance of any specific service or charity in a charitable or religious institution or for the performance of any other charity, religious or otherwise."
Section 2, sub-section (26) of the Act deals with the temple, with which we are concerned, which is defined as follows:-
"(26). 'temple' means a place by whatever designation known, used as a place of public religious worship, and dedicated to, or for the benefit of, or used as of right by, the Hindu community or any section thereof, as a place of public religious worship and includes sub-shrines, utsava mantapas, tanks and other necessary appurtenant structures and land."
As to the authority which has to make a declaration whether a particular temple is a private temple or a public temple, the Deputy Commissioner of Endowments having jurisdiction has to decide, the dispute as laid down by Section 77 of the Act. The entire Section 77 of the Act, which deals with the procedure for enquiry and how it has to be decided is extracted below and it reads as follows:-
"77. Power of Deputy Commissioner to decide certain disputes and matters:- (1). The Deputy Commissioner having jurisdiction shall have the power, after giving notice in the prescribed manner to the person concerned, to enquire into and decide any dispute as to the question-
(a) whether an institution or endowment is a charitable institution or endowment;
(b) whether an institution or endowment is a religious institution or endowment;
(c) whether trusteeship is hereditary or not;
(d) whether any property is an endowment, if so whether it is a charitable endowment or a religious endowment;
(e) whether any property is a specific endowment;
(f) whether any person is entitled by custom or otherwise to any honour, emoluments or perquisite in any charitable or religious institution or endowment and what the established usage of such institution or endowment is in regard to any other matter;
(g) whether any office-holder or servant is holding or has held his office or service hereditarily;
(h) whether any office or service is of a hereditary nature;
(i) where a permanent or temporary vacancy occurs in the office of a hereditary trustee, as to the person who is entitled to succeed to such office;
(j) whether any institution or endowment is wholly or partly of a secular or religious character and whether any property is given wholly or partly for secular or religious uses; or
(k) where any property or money has been given for the support of an institution or endowment which is partly of a secular character and partly of a religious character, or the performance of any service or charity connected with such institution or endowment or the performance of a charity which is partly of a secular character and partly of a religious character or where any property or money given is appropriated partly to secular uses and partly to religious uses, as to what portion of such property or money shall be allocated to secular or religious uses.
(2) The Deputy Commissioner may, pending his decision under subsection (1), pass such order as he deems fit for the administration of the property or custody of the money belonging to the institution or endowment.
(3) Every decision or order of the Deputy Commissioner under this Section shall be published in the prescribed manner.
(4) The Deputy Commissioner may while recording his decision under sub-section (1) and pending implementation of such decision, pass such interim order as he may deem fit for safeguarding the interests of the institution or endowment, for preventing damage to or loss of or mis-appropriation or criminal breach of trust in respect of the properties or moneys belonging to or in the possession of the institution or endowment."
Section 78 of the Act lays down that if any person is aggrieved by the decision of the Deputy Commissioner Under Section 77, he may within one year from the date of publication of such decision institute a suit in the District Court.
12. Unless one goes deep into the nature of acquisition, flowing of funds for such acquisition, full control and management of the temple, etc., it is very difficult to decide whether a particular temple is a public one or a private one. It is not uncommon of late that even a private temple attracts a large number of public whereas public temple is closed almost for the reasons best known to the authorities and to the public. The factors which are necessary to justify whether a particular temple is a private one or public one can be drawn from the principles laid down by the Supreme Court and this Court and other High Courts and some of the important decisions are referred to in this regard. In the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, , popularly known as Shirur Mutt's case, the Supreme Court held as follows:-
"It is well known that there can be no such thing as an unregulated and unrestricted right of entry in a public temple or other religious institution, for persons who are not connected with the spiritual functions thereof. It is a traditional custom universally observed not to allow access to any outsider to the particularly sacred parts of a temple, as for example, the place where the deity is located. There are also fixed hours of worship and rest for the idol when no disturbance by any member of the public is allowed."
In Sri C.S. Ambigai Temple v. Commissioner of H.R. and C.E., Madras, 1966 (1) MLJ 109 the Madras High Court held as follows:-
and rest for the idol when no disturbance by any member of the public is allowed."
In Sri C.S. Ambigai Temple v. Commissioner of H.R. and C.E., Madras, 1996 (1)MLJ 109 the Madras High Court held as follows:-
"It is now well settled that unlike, the temples in Kerala, there is a presumption that temples in South India are public and the onus of proof is on the person asserting it to prove that it is a private temple. Even a temple dedicated for the use of a particular section of the Hindu Community could also be a public temple if the community constitutes a considerable section of the Hindu public and the members of which worship in the temple as of right."
In Nanjappa Chettiar v. Commissioner, H.R. and C.E., Madras, 1966 (1) MLJ 149 a Division Bench of the Madras High Court has laid down the test to determine whether a particular temple is a private temple or a public one and it reads as follows:-
"The well-known tests to decide whether a temple is a private or public one is to see whether the temple is located inside a private house or a public building, whether the idols are permanently installed on pedestals inside the temple, whether there are permanent archakas appointed for performing puja in the temple, whether the deity is taken out in public in procession periodically and public make offerings on that occasion and so on."
Similar was the view of a Division Bench of this Court in E.O., Anjaneyaswami Temple v. L.N. Murthy, 1978 (1) ALT 359. In G.S. Mahalaxmi v. Shah Ranchhoddas, the Supreme Court has laid down the test to be applied to determine whether a particular temple is a public temple or a private one and the learned single Judge of this Court in the case (1 supra) has summed up the view of the Supreme Court in the following words:-
"The fact that the temple had the appearance of the residential house does not in any manner militate against the contention that the temple in question is a public temple. In that case it was established by evidence that the public were asked to enter the temple only after the Maharaj had finished his worship. Their Lordships held that even that circumstance is of no consequence in determining whether the temple is a public temple or a private temple. According to their Lordships, the above usage pleaded by the appellant in that case was not inconsistent with that temple being the public temple. Though an attempt was made to prove that certain individuals were forbidden from entering into the temple, the learned Judges of the Supreme Court observed that such a plea was not satisfactorily established and that the evidence was only that certain individuals were kept out of the temple because of some act of indiscipline on their part. Relying upon the overwhelming evidence that the members of the public are entitled to worship in the temple as of right, the learned Judges came to the conclusion that it is a public temple."
While reiterating the earlier view of the Supreme Court in G.S. Mahalaxmi's vase6 and also taking into consideration the principles laid down by the Privy Council in Babu Bhagwan Din v. Gir har Saroop, AIR 1940 P.C. 7 and Mundancheri Koman v. Achuthan Nair, AIR 1934 P.C 230 the Supreme Court in T.D. Gopalan v. Commissioner, H.R. and C.E., Madras, 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."
13. Sri Koka Raghava Rao, learned Counsel for the appellant has placed reliance on the decision of the Supreme Court in Jammi Raja Rao v. Sri Anjaneya Swami Temple Valu and Ors., wherein it was held that a temple can be declared as a public temple provided that it is proved that the said temple is in usage by the public for a considerably long period. The latest decision on this point is the one decided by the Supreme Court in Bala Shankar Maha Shankar Bhattjee and Ors. v. Charity Commissioner, Gujarat State, while making reference to earlier decisions and the Supreme Court has laid down the tests to determine as to whether a temple is a public one or a private one and the same is as follows:-
"An idol is a juristic person capable of holding property. The property endowed to it vests in it but the idol has no beneficial interests in the endowment. The beneficiaries are the worshipers. Dedication may be made orally or can be inferred from the conduct or from a given set of facts and circumstances. There need not be a document to evidence dedication to the public. The consciousness of the manager of the temple or the devotees as to the public character of the temple; gift of properties by the public or grant by the ruler or Government; and long use by the public as of right to worship in the temple are relevant facts drawing a presumption strongly in favour of the view that the temple is a public temple. The true character of the temple may be decided by taking into consideration diverse circumstances. Though the management of a temple by the members of the family for a long time is a factor in favour of the view that the temple is a private temple it is not conclusive. It requires to be considered in the light of other facts or circumstances. Internal management of the temple is a mode of orderly discipline or the devotees are allowed to enter into the temple to worship at particular time or after some duration or after the head-man leaves the temple are not conclusive. The nature of the temple and its location are also relevant facts and circumstances of a given case. No set of general principles could be laid."
Having gone through the above decisions, which dealt with elaborately on the test to determine whether a particular temple is a private temple or a public temple and after comparing the same to the evidence in the present case, we are of the firm opinion that the temple in question is a private temple and not a public temple. The circumstances which support our view are that earlier to the purchase of the suit temple, the said place belongs to one Narayan Gir, son of Ramajivan Gir, wherein a small 'gudi' was existing and no semblance of public were going to the temple for the purpose of worshipping the deity and that has been the evidence in condition No. 2 of the sale deed, Ex.A-1. It is admitted by the Assistant Commissioner of Endowments that the plaintiff has purchased two idols of 'Sri Santhoshi Matha' and 'Sri Durga Matha' from Jaipur, installed them in the scheduled premises, renovated the temple for which expenditure was met by the plaintiff, paying the salary to the Archaka and the premises is situated exclusively within the precincts of the plaintiff's house. It is also admitted by the Assistant Commissioner that the plaintiff alone is performing pooja in the suit temple and he has allowed the devotees also to enter the temple and he is not collecting any 'kanukas' either for 'archanas' or for different poojas from the public. It was also stated that no donations from the public either for purchasing of idols or for construction or renovation of temple and the management of the suit temple is exclusively under the control of the plaintiff. The hours of visit to the temple for the devotees are regulated by the plaintiff. The tax receipts and other documents together with the testimony of the other two witnesses also support the case of the appellant. Thus, the evidence on record suggests that the temple in question is a private temple and not a public one. The finding of the Deputy Commissioner of Endowments made in O.A.No. 68 of 1981, dated 3-2-1982 and confirming the same by the Court below in O.S. No. 212 of 1982, dated 10-3-1986 are quite arbitrary and perverse since it is proved by the plaintiff by adducing evidence that the temple in question is a private temple and not a pubic one. The order of the Deputy Commissioner and the Court below deserve to be declared as illegal.
14. In the result, the order of the Deputy Commissioner of Endowments passed in O.A. No. 68 of 1981, dated 3-2-1982 and the judgment of the learned Chief Judge, City Civil Court, Hyderabad passed in O.S. No. 212 of 1982, dated 10-3-1986 are set aside and consequently, the suit property including the temple is declared as private temple of the plaintiff. The appeal is accordingly allowed. There shall be no order as to costs.