1. This Second Appeal is directed against the decision of the learned Subordinate Judge, Srikakulam in A. S. 150 of 1958 on his file. The relevant facts may briefly be stated.
2. The plaintiff is the 'Deity of Srirama-mandiram of Gangada' in Srikaulam District re-presenfed by its trustee Ganta Vallablia Naidu. The suit was filed under the following circumstances.
3. He was appointed as a trustee under the Hindu Religious and Charitable Endowments Act (hereinafter referred to as the Act) by a resolution of the Area committee dated 3-5-1954. About 50 years ago, Dalinaidu, the paternal grand-father of the defendant (Marrapu Venkata Ramamurthy), Ganta Laxminaidu and Ganta Val-labha Naidu, raised public subscriptions and constructed the suit 'Srirama Mandiram' for the worship of the villagers. They persuaded one Neti Simhachalam who was having the patta for the plaint A schedule land to relinquish it in favour of 'Srirama Mandiram'. They approached the Raja of Bobbili to grant that patta in their names for the benefit of the Deity at a concessional rate of cist and, accordingly, the patta bearing No. 58 was granted to these three persons. They were utilising the income therefrom for the benefit of 'Srirama Mandiram'. They appointed one Venkata Seetharamayya as the Archaka of the temple.
4. When the cultivating tenant of the land Chukka Jagannadha Swamy did not vacate, the three trustees instituted O. S. No. 517 of 1955 in the court of the District Munsif, Parvathipu-ram for possession of the suit land and, by way of compromise, recovered possession of the land in question. Later, the trustees appointed one Mangu Gopal Rao, as the Archaka and after him one Kandukuri Appalaswamy. The temple was thus being maintained with the consent and for the benefit of the villagers from the income of the suit land. After the death of Ganta Vallabha Naidu, and after the defendant's father Jagannadha Swamy left the village the remaining trustee Ganta Lakshminaidu, Narayanaswami Naidu, the son of Vallabhanaidn and three or four others were managing the suit temple. One Ghukka Madanna and others cut and carried away the standing crop on the suit land in 1934, and thereupon, the defendant claiming himself to be the sole trustee and also the Archaka instituted O. S. 364 of 1934 and obtained a decree. The plaint schedule immovable property and B schedule properties belong to the Deity of Srirama Mandiram and that it is a public Temple. The plaintiff Ganta Vallabha Naidu as the trustee has therefore filed the suit for recovery of A and B schedule properties from the defendant, alleging that he was also authorised by the Board to institute the suit.
5. The defendant resisted the suit contending that the suit temple is not a public temple, but that it is a private temple constructed by his paternal grand-father for his own benefit that the suit property is his private property, and has been in his possession and enjoyment for more than thirty tour years, and that he is entitled to sell the same. He also challenged the appointment of the present trustee.
6. The learned District Munsif on a consideration of the evidence held that the suit temple was dedicated for the use of the public, that the present trustee Vallabha Naidu was properly appointed, that the property in question belongs to the temple and that the defendant is estopped by his admissions and conduct from denying the title of the Deity to it.
7. On appeal to the Subordinate Judge in A. S. No. 150 of 1956 the decision of the trial Court was upheld. Aggrieved by this decision the defendant has preferred this second appeal. Sri K. V. Rangachari, the learned counsel for the appellant raised the following contentions:
1. That 'Srirama Mandiram' is not a temple.
2. That in any event, it is a private temple but not a public temple;
3. that the suit properties are the appellant's absolute properties; and
4. that the Civil Court has no jurisdiction to entertain the suit.
8. We will consider the validity of these contentions seriatim.
9. Section 6(17) of the Act defines 'temple' thus :
' '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 commu nity or any section thereof, as a place of public religious worship.'
10. A Bench of the Madras High Court consisting of Varadachariar and Pandrang Row. JJ. in Commrs. for Hindu Religious Endowments, Madras v. Narasimham, AIR 1939 Mad 134 at p. 135 had to consider the test for determining whether a particular institution is a temple or not under Section 9(12) of the Madras Hindu Religious Endowments Act (Act II of 1927) which corresponds to Section 6(17) of the present Act. Varadachariar, J. summed up the position thus:
'The Hindu Religious Endowments Act, no doubt speaks of a temple as a place of 'public religious worship'. That what the evidence in this case describes as taking place in connection with the institution is public worship can admit of no doubt. We think it is also religious. The test is not whether it conforms to any particular school of Agama Sastras; we think that the question must be decided with reference to the view of the class of people who take part in the worship. If they believe in its religious efficacy, in the sense that by such worship they are making themselves the object of the bounty of some super-human power, it must be regarded as 'religious worship'.
It may be mentioned that in that ease the evidence disclosed that Nitya Neivedya Diparadhana was not performed all through the year but only either on 20 days in the year or on five days in the year. There was also no idol as such, though there were 66 stones placed along the three walls called Viranayakulu or Virlu Vigrahalu. The evidence was that rice which was distributed amongst the people present was carried home by them and scattered in their fields; obviously in the belief that it would make the fields more productive. The learned Judges held that the evidence satisfied the test of a temple.
11. In Ramaswami Servai v. Board of Com-missoners for the Hindu Religious Endowments Madras, : AIR1951Mad473 Viswanatha Sastry, J. held that
'the presence of an idol, though it is an invariable feature of Hindu temples, is not a legal requisite under the definition of a temple in Section 9(12) of the Act. If the public or that section of the public who go for worship consider that there is a Divine presence in a particular place and they by offering worship there are likely to be the recipients of the blessings of God, then we have the essential features of a temple as defined in the Act.'
12. These two decisions make it abundantly clear that the existence of an idol and a Dhwajasthambham are not absolutely essential for making an institution a temple; and that so long as the test of public religious worship at that place is satisfied it answers the definition of a temple within the meaning of the Act. It is not disputed that in this case the villagers are all entitled to worship and, that they gamer and offer religious worships in Srirama Mandiram.
13. The learned counsel for the appellant placed strong reliance on Elimalai Chetty v. Commr. Hindu Religious and Charitable Endowments, Madras, 68 Mad LW 260 (2). In that case in respect of a temple there was a clear deed of dedication by which all Hindris were enabled to worship therein, the word Devastanam was used in the deed frequently, and the owner had been holding out to the public that the temple was a public one and allowed them to exercise their rights of worship on that footing. Inscriptions have been set up in the temple showing it was not a private temple but a public temple where Hindu Public might come and worship, the original dedication was performed by Prana Prathista and Samprokshana and the temple bad appurtenances consisting of Moolvar, Uthsavar, Alankara Mandapam, Prakaram, Vaha-nam, Madapalli and Garudalwar. Ramaswami J. held that they were all circumstances to show that the temple was a public one and the mere fact that there were no Gopuram and Dwajastam-bam did not negative the fact of the temple being a public one, because they are indicia connected with some of the rich temples in South India.
14. This decision, therefore, cannot be relied on as an authority for the position that the mere absence of an idol or a Dwajasthambham would take away the character of an institution from being a temple. It may be mentioned that decision of the Bench in AIR 1939 Mad 134 at p. 135 had not been cited before the learned Judge. We cannot, therefore, consider the decision of Ramaswami J. as laying down a principle different from that enunciated in AIR 1939 Mad 134 at p. 135.
15. The other case relied on on behalf of the appellant is the decision of the Supreme Court in Poohari Fakir Sadavarthy v. Commr. Hindu Religious and Charitable Endowments, AIR 1963 SC 810. Raghubar Dayal, J. speaking on behalf of the Court held that a religious institution will be a temple if two conditions are satisfied. One is that it is a place of public religious worship and the other is that it if dedicated to, or is for the benefit of, or is used as of right by, the Hindu community or any section thereof, as a place of religious worship. It was also laid down that though in the greater part of the Madras Presidency, where private temples were practically unknown the presumption is that temples and their endowments form public charitable trusts, the presumption is certainly rebuttable and when the evidence in the casa sufficiently rebuts it and the temple is situate at a place which is practically at the boundary of the Madras Presidency, and close to the common boundary between the Presidency and Orissa, the presumption will be very weak. The learned Judges on the evidence held that it was a private temple. To our mind this decision is not of assistance to the appellant. On the other hand, it negatives his contention, as it laid down that the only condition required to make a religious institution a temple are that it should be a place of public religious worship and secondly it must have been dedicated to, or is for the benefit of, or is used as of right by, the Hindu community or any section thereof as a place of religious worship. Those facts, as already mentioned nave not been denied, in this particular case. We therefore, hold that the contention that Sriram Mandiram is not a temple has to be rejected.
16. The next contention on behalf of the appellant is that the temple is a private one and not a public temple dedicated to the use of the public. This and the other contention that the suit land (A schedule) and the immovables (B schedule) are his private properties, may be taken up for consideration together. There is evidence in the case to show that the endowment authorities determined the suit temple to be a public temple. The area committee by its resolution No. 273 dated 26-4-54 (copy of which is Ex. A. 1) appointed Ganta Vallabha Naidu as the trustee for a period of three years. The appellant put forward his title to the lands before the Endowments Department but it was not accepted. The commissioner passed an order dated 27-0-1955, Ex. A. 8 directing him to file a suit to establish his title to the suit lands, if so advised. It may be noted that the defendant-appellant did not file any suit subsequently. The Asst. Commissioner of Endowments however by his order, Ex. A. 5 dated 20-7-54 permitted the present trustee to file a suit in forma pauperis and recover possession of the temple lands. Accordingly, the trustee instead of seeking a summary remedy under Section 87 of the Act, filed the present suit. It may also be mentioned that the trustee on the strength of the order appointing him as a trustee filed M. C. 170 of 1954 before the Sub Divisional Magistrate. Parvathipuram and obtained possession of 'Sriram Mandiram.'
17. There is also clinching evidence to negative the contentions raised by the appellant. He filed O. S. 364 of 1954 on the file of tho District Munsif Court, Parvathipuram in respect of these suit lands. The true copy of the plaint was marked as Ex. A. 20 in the case. To that suit he impleaded one Ganta Laxminaldu (one of the three original trustees) and Narayanas-wami Naidu, son of Laxminaidu the other original trustee. He alleged therein that the land covered by Jiraiti patta No. 58 was obtained by the three trustees, and the income therefrom was being utilised for the benefit of 'Srirama Man-diram' for Bhoragadulu of Srirama Mandiram, which they got constructed with the aid of public subscriptions. He filed that suit for recovery of Rs. 75 as damages for the crop unlawfully taken away by defendants 2 to 5 therein. It is dear from these averments that the plaintiff filed the suit in his capacity as the trustee and impleaded D. 1 and D. 2 in the same capacity. These allegations negative the present contention of the appellant that the suit lands are his private properties. The fact that the two other trustees aid not evince sufficient interest in the present litigation and had to be impleaded as defendants, would not, in the least support the appellant's contention that it became his personal property. The judgment in that case is Ex. A. 9, The first issue raised in that suit was: Whether the plaintiffs and D. 1 and D. 2 had title to the suit lands. The learned District Munsif on a very exhaustive consideration of the evidence found that issue in the affirmative. It would thus be seen that the title of Sriram Mandiram to the suit lands was not only admitted by the appellant but also found by the Court of the District Munsif, Parvathipuram in O. S. No. 364 of 1984.
18. There is yet another litigation which may be referred to. The appellant filed a suit in forma pauperis. (O. P. 1 of 1931) on the file of the District Munsif's Court, Parvathipuram for partition of the family properties against his father and some others. The appellants did not include the suit property covered by patta No, 58 as one of the partible items belonging to the family. In support of his pauperism he also gave evidence, and in his cross-examination he clearly admitted that he had no share in Jiraiti No. 58 in Gangada. These admissions and the conduct of the appellant clearly establish that his claim to the suit property is clearly an afterthought, and has absolutely no basis whatever.
19. Further, having acted as a trustee and having obtained decrees of the courts in that capacity, he cannot now turn round and claim the temple to be a private temple, or the properties as his absolute properties. The explanation given for his non-inclusion of the suit property as one of the partible items viz., that they were his self-acquired properties, is a contention which is most fantastic, and has to be rejected. There is no evidence on record to show as to when and how he acquired palla No. 58 as his private property.
20. In a number of sale-deeds, Exs. A. 13 and A. 14, the parties to it had described the suit land as belonging to the Deity. As many as sixteen villagers were examined on behalf of the plaintiff. All of them supported the plaintiff's case and deposed that Sriram Mandiram was built by the three original trustees with public funds, and the suit land was acquired for the benefit of the Deity in the name of those trustees. That being the case, the mere fact that on account of the indifference of the other trustees the appellant was allowed to remain in possession would not, in the least, make it as a private property. In this view, the lease-deeds on which he relied Exs. B. 4 to B. 6, B. 16 and B. 18 are not entitled to any probative value. For all these reasons the courts below held that Sri Rama Mandiram is a public temple and that the suit properties belong to the Deity, but not to the appellant. The said conclusion is entirely warranted by the evidence on record, and sitting in second appeal, we cannot interfere, with the same.
21. The only contention on behalf of the appellant that remains to be considered is that the Civil Court has no jurisdiction to entertain the suit. The argument is that the questions whether an institution is a religious institution and whether any property is a religious endowment etc. are all questions to be decided under Section 57 of the Act, and against orders passed thereunder a right of appeal and other remedies have been provided for. Section 93 enacts thus:
'No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this act shall be instituted in any court of law, except, under, and in conformity with, the provisions of this Act.'
Relying on this section, it is contended that inasmuch as the questions whether the suit property is a religious endowment and whether the institution is a religious institution are matters provided for under Section 57 of the Act, the present suit would not lie. We are unable to accept this contention. As already stated, the Religious Endowment Board has assumed control over 'Srirama Mandiram' and has appointed the present plaintiff as a trustee thereof. When the appellant was removed as a trustee and the plaintiff appointed in his place it was open to him to have followed the remedies provided for by the Act and disputed the correctness of the plaintiff's appointment. But that was not done. It is no doubt true that Section 87 provides for summary remedy for the plaintiff to obtain possession of the properties endowed. In the instant case, the Endowment Board thought it fit to advise the plaintiff to file a regular suit and obtain possession. By this procedure, we feel, the defendant, if at all, was in an advantageous position, but in no way prejudiced.
22. Further, there is one impediment in the way of the appellant. If really there was any merit in his contention, he should have raised it in the trial court. But, that was not done, evidently with a view to try his chance in the litigation. Having lost the suit, he appears to have raised this contention in the lower appellate court which the learned Subordinate Judge allowed. In view of well established authority, an objection as to jurisdiction must be raised at the earliest possible stage so that the other party, if so minded, might abandon the proceedings in the Civil Court and approach the appropriate forum. We are, therefore, of the opinion that the lower appellate Court was not right in allowing this contention to be raised for the first time in appeal. By doing so, it prejudiced the rights of the plaintiff. In this view, we hold that the contention that the Civil Court has no jurisdiction also fails.
23. In the result, the second appeal fails and is dismissed with costs.