1. The question dispute between the Temple authorities and the defendants is as to the ownership of the Gangai Kondan mantapam buildings at the junction of the Tholasinga Perumal and Venkatesa Naick Streets in Triplicane. Of this strip of land the eastern portion about 46 E.W. 36 is an open space in front of the Tholasinga Perumal Street. Next to it is the mantapam proper about 34 feet E.W. There is a door-way from it leading to the west where there are certain godown bazaars which also are claimed in this suit. On the northern side of the vacant space and the mantapam are certain shops on the Venkatesa Naick Street side which it is admitted and the evidence shows were built after 1894.
2. The same question was in dispute in 1895 in a suit brought unsuccessfully by some of the worshippers against Raghava Charry, the brother of the 1st defendant, who was also a trustee.
3. In that suit, Raghava Charry in claiming the property as his own admitted that it was subject to performance of a charity on special occasions, that the shops were built to utilize the income thereof for the performance of the charity, and that the rents derived from the bazaars were used for the same purpose. He claimed the godown as the private property. In the present suit the defendants admit the mantapam to have been built for the benefit of the Sree Parthasarathy Swami of the Triplicane temple and the bazaars to have been built for the income to be used as stated above and the 1st defendant states in his written statement the suit property with the mantapam thereon is the absolute property of the defendants but subject to the performance of certain charity at their own expense'.
4. The suit was dismissed by Mr. Justice Boddam and this is an appeal from that decision.
5. The temple was under the management of the East India Company till 1843 when it was handed over to three trustees one of whom was Sadagopacharry the 1st defendant's father who died in 1872 and was succeeded in 1880 by his son Raghava Charry who died in 1904. Another trustee appointed in 1843 was one Narasimhaloo who died in 1846 and was succeeded by his son Ramanjulu who died 1883. The third trustee was Venkatanarain Pillai who died in 1886. In 1897 the two plaintiffs were appointed trustees.
6. Thus from 1872 to 1880 no member of the defendants' family was a trustee and from 1886 to 1897 a member of the defendants' family was the sole trustee.
7. In proof of the plaintiffs' claim, it is first urged that this mantapam was built with the materials and on the site of an old mantapam which belonged to the temple. The documentary evidence shows that before 1843 for certain festivals the idol was taken to a Gangai Kondan mantapam which was decorated for the occasion by the temple authorities out of the temple funds and was probably in their possession on those days as it appears they were interfering with the structure itself by raising platforms. (Exs. O, T & P).
8. According to the plaintiffs' oral evidence (see the plaintiffs' 5th and 6th witnesses, supported to some extent by the 1st defendant himself) there was a small mantapam used in connection with the temple nearer the road than the present mantapam proper, probably in the open space to the west of the Tholasinga Perumal Street which was demolished by Sadagopacharry, the trustee appointed in 1843, after he purchased the land from one Appalachari and built the present mantapam to the east of the old one utilising the stones of the old mantapam. It is not suggested that the temple now has, or at any time had, any other Gangai Kondan mantapam. The temple accounts (Exs. O, P & T) and the oral evidence, therefore, must refer to the same mantapam. The sale-deed by Appalachari is not produced, but an assignment to Sadagopacharri dated August 1843 of a mortgage created by him is produced, and from the extent and measurements the land referred to in those documents comprise the land now in suit. (Exs. 33, 34, 35 and 35 a). There is nothing to show that Sadagopa took this assignment as trustee. As it was taken in his sole name while there were at that time two other trustees, it is probable that he purchased it for himself. We are, therefore, of opinion that an old mantapam existed there when he purchased the land, that he pulled it down and built the present mantapam with the old materials, and as the evidence shows that he was a trustee who had performed several charities in connection with the temple, we have no doubt, that he intended to, and did dedicate the new mantapam to the temple in the same way as the old one was dedicated. But the documentary evidence which alone is reliable (Exs. O, P & T) in this respect proves the right of the temple authorities to the use and possession of the mantapam only for the purpose of carrying on the festivals. We have to see whether the other evidence supports the claim to complete ownership.
9. In Ex.--C, the Survey Register of 1858, F and G, the Revenue Register of 1859, the land in dispute is stated to be Devasthanam in the enjoyment of the then trustees of the temple. No adequate explanation has been offered by the respondents of these enteries.
10. These entries are repeated in Ex.--H, the insert Register of quit rent payments from 1886 to 1888, and in a modified form in the similar register Ex.--J for the three subsequent years. Reghava Charry was then trustee, but as evidence of his admission they are valueless as his name is not entered as a co-trustee, but the names of the three deceased trustees alone are entered. Otherwise they stand on the same footing as Exs. C, F and G.
11. In Ex.--R, a list of temple lands prepared in 1881 and Ex.--S another list prepared in 1884 by the trustees (the 1st defendant's elder brother being one of them) to file in a suit, this land is entered as temple property. The respondents in reply rely upon the admission of the temple clerk that Ex.--R includes property admittedly not temple property and Ex.--S includes property only subject to a trust in favour of the temple. They rely further on a list Ex.--20, prepared by the receiver in which the property is shown to be in the possession of the defendants' family on information, however, which seems to have been supplied by the 1st defendant's brother himself.
12. It thus appears that the officials who prepared the Revenue accounts believed that this property belonged to the temple and that Raghava Charry the then head of the defendants' family admitted that the temple had such an interest in it as to describe it as its property.
13. We now come to the question of possession. It is significant that the temple accounts show expenses incurred only in connection with the ceremonies. They prove that the lighting, whitewashing, and putting up pandals at festive times were done out of the temple funds. The trustees also kept their own watchmen. This would show their possession of the mantapam proper and necessarily also of the space in front of it and on the east of the road during the days of the festivals, when the idol had to be carried to the mantapam. But, on the other hand, the family accounts of the defendants show that Sadagopa Chariar was making structural alterations, repairs and additions. It is argued by Mr. Krishnaswami Aiyar that Sadagopa Chariar may have done this out of the temple funds which his own accounts show he often had in his hands. This may be so, but there is nothing to support the suggestion. The accounts have not been examined with a view to finding out whether such funds have been otherwise accounted for. It is also urged that he may have done all this as charity. Whatever doubts there might be, as to the character in which he did all this, what happened after his death, as we will show presently, seems to place the matter beyond doubt. It also appears from the plaintiffs' own evidence that the keys of the mantapam have always been with the defendants' family and not the temple, and that the defendants' family paid the quit rent and Municipal assessment. It is proved that the defendants take their grain through the mantapam to the godown behind and to the west of the mantapam proper through the opening in the wall and they store their grain in that godown. This door in the mantapam is the only entry into that godown. It has a lock and the 1st defendant says that the key is with him. The defendants' family have been letting out portions of this property from 1891 and their is evidence Ex. --58 a that they received rent for a bazaar in the mantapam in 1884. It is possible that Sadagopa Charry may have been allowed to do all this as the active and energetic trustee living near the temple. But the evidence is that even after his death before his son became a trustee (i.e.) between 1872 and 1880 also the defendants were in possession (see Exs. 5, 55 and 66) and their paddy was being taken through the mantapam to be stored in the godown behind. The conduct of the parties between 1872 and 1880 is strong evidence against the plaintiffs and explains the nature of Sadagopa Charry's and Raghava Charry's possession before and after that date. It is unfortunate that Raghava Charry was allowed to remain sole trustee in possession of the temple records as any records favourable to the plaintiffs' contention, if any such existed, must have disappeared then. The conduct of Ragahava Charry in trying to tamper with the public records--for there can be no doubt that the attempt was made for his benefit and must have been made with his connivance--lends colour to that suggestion. But we have to decide the case upon the evidence adduced. The evidence of possession by the members of the defendants' family from 1843, in particular during the period when no member of that family was a trustee, is inconsistent with the claim set up on behalf of the temple. At the: same time it does not contradict any inference of the limited right to passes and use the mantapam with the space in front as it was before the shops were built in 1894 during the customary festivals when the idol is taken to the mantapam which is proved by the evidence relating to the old mantapam and the subsequent temple accounts. Without recognizing that claim we find it difficult to explain the official records and in particular the lists prepared when Ragahava Charry was a trustee, one of them signed by himself. The temple has only this right. The defendants admit that the income from the shops and the bazaars is used for the worship of the idol when brought into the mantapam. The suit for possession is, therefore, rightly dismissed. No relief based on the right we have found to exist is prayed for in the plaint. We dismiss the appeal.
14. In all the circumstances, we think the order as to costs should be that each party bear his own costs throughout.