M. M. Ismail, J.
1. The first defendant in O.S. No. 11 of 1966 on the file of the Court of the Subordinate Judge of Mayuram is the appellant herein. The suit related to a temple known as Sri Panchavatiswaraswami Temple, situate in Ananthandavapuram in Thanjavur district. Exhibit B-I is an extract of the Inam Statement of one Appa Gurukkal dated 16th December, 1861 made before the Inam Commissioner. That statement shows that properties were endowed for Sri Panchavatiswaraswami Temple and that Appa Gurukkal was the person in possession, of the properties and was also the Archaka of the temple. Exhibit A-I is an extract for the Inam Register of Anathandavapuram village. That extract shows, that Appa Gurukkal was the worshipper in possession and the inam itself was confirmed and continued so long as the worship was regularly rendered. Exhibit B-2 is the copy of the inam title deed No. 633 granted to the manager for the time being of the pagoda of Sri Panchavatiswaraswami. Exhibit B-3 dated 18th August, 1884, is a lease chit executed in favour of Appa Gurukkal with reference to the property granted in inam to Sri Panchavatiswaraswami temple. Exhibits A-2 to A-6 are kist receipts for the period 1936 to 1964 for payment of kist for the lands in question by the successors of Appa Gurukkal. At this stage it must be mentioned that Appa Gurukkal himself had no issue and after him one Annu Gurukkal was in charge of the poojas in the temple. Annu Gurukkal is the great grandfather of the two plaintiffs in the suit. After Annu Gurukkal one Swami Gurukkal succeeded him. The father of the plaintiffs was one Sambasiva Gurukkal who succeeded Swami Gurukkal. Sambasiva Gurukkal had two wives: the first plaintiff is the son through his first wife, while the second plaintiff is the son through his second wife. The first plaintiff herein filed a petition, Exhibit B-16, Under Section 57 (b) of the Madras Hindu Religious and Charitable Endowments Act XIX of 1951, before the Deputy Commissioner, Hindu Religious and Charitable Endowments, Thanjavur. That petition was numbered as O.A. No. 128 of 1957. In that petition the first plaintiff prayed for a declaration to the effect that he was holding his office in the temple of Sri Panchavatiswaraswami, Anathandavapuram, Mayuram Taluk, as a hereditary trustee, and he contended that the temple itself was a private temple, that it was constructed by his forefathers and that they were performing poojas in the temple hereditarily as well as managing the lands of an extent of 7 acres 88 cents which were obtained for the benefit of the temple by his forefathers as inam. To that petition no respondents were originally impleaded. The father of the first plaintiff, Sambasiva Gurukkal, as well as the second plaintiff, objected to the declaration prayed for by the first plaintiff, and they filed objection petitions before the Deputy Commissioner.. Thereafter they, as well as the legal representatives of another brother of the first plaintiff, were impleaded as respondents to the said petition. They put forward the contention that, so long as Sambasiva Gurukkal was alive, the first plaintiff was not entitled to claim to function as a hereditary trustee of the temple and that consequently the declaration prayed for by the first plaintiff should not be granted. They affirmed the stand taken by the first plaintiff that the trusteeship to the temple was hereditary, but their case was that, so long as the father was alive, the first plaintiff could not claim, to be a trustee. They, however, prayed that, in the event of the first plaintiff being declared as a hereditary trustee, they should also be declared as hereditary trustees along with, the first plaintiff. This petition filed by the first plaintiff came to be disposed of by the Deputy Commissioner by his order dated 7th June, 1959, marked as Exhibit A-19 in these proceedings. He posed two questions for consideration: (i) whether the office of trustee of the suit temple is hereditary; and (ii) whether the petitioner (first plaintiff) is entitled to get a declaration as prayed for. He held that no hereditary right to the office had been proved to have vested in the first plaintiff's family and that consequently the claim to that office by succession by the first plaintiff could not be recognised. Against this order of the Deputy Commissioner the first plaintiff preferred an appeal to the Commissioner and that appeal was dismissed by the Commissioner on 2nd July, 1960 under the original of Exhibit A-20. No further steps were taken to challenge the correctness of this order made under the original of Exhibit A-20. However, there is evidence to show that even after the dismissal of the petition of the first plaintiff, the officers of the Hindu Religious and Charitable Endowments Department themselves treated the first plaintiff as well as his father as hereditary trustees of the temple, issued notices to them calling upon them 10 pay contribution payable under the previsions of the Act, collected the same from them and also issued receipts therefor. Between 1960 and 1964 nothing appears to have happened. However, under the original of Exhibit B-24 dated 2nd December, 1964, the Area Committee, Hindu Religious and Charitable Endowments, Nagapattinam, appointed the second defendant herein as a trustee for the temple in question. By that time Sambasiva Gurukkal himself was dead. It was under these circumstances that the two plaintiffs, who are step-brothers, filed an application before the Deputy Commissioner, Hindu Religious and Charitable Endowments, Under Section 63 (b) of the Madras Hindu Religious and Charitable Endowments Act XXII of 1959, corresponding to Section 57 (b) of Act XIX of 10-51, for a declaration that they performed the functions as hereditary trustees of the temple in question. This petition (O.A. No. 21 of 1964) was dismissed by the Deputy Commissioner on 31st August, 1954, under the original of Exhibit A-22, holding that the decision in O.A. No. 128 of 1957 constituted res judicata with regard to the claim of the plaintiffs to hereditary trusteeship of the temple in question. Against that order the plaintiffs preferred an appeal, A. No. 58 of 1964, on the file of the Commissioner, Hindu Religious and Charitable Endowments, and that appeal was dismissed by the Commissioner on 19th October, 1965, as evidenced by the original of Exhibit A-23. It was thereafter that, pursuant to the provisions of Section 70 of Act XXII of 1959, the present suit was instituted by the plaintiffs for setting aside the orders of the Deputy Commissioner and the Commissioner referred to above.
2. The appellant herein, in the written statement, filed before the trial Court, contended that the plaintiffs were not the hereditary trustees of the temple, and that apart from that fact, that question could not be agitated again in view of the finality of the orders in O.A. No. 128 of 1957 and the appeal arising therefrom. The third respondent herein (the second defendant) filed an independent written statement putting forward the contention that the plaintiffs and their forefathers were not trustees of the temple in question, that they were only poojaries of the temple, that it was the villagers who had been in management of the temple and its properties, that the villagers had appointed trustees to the temple for that purpose, and that lease deeds had been executed by the tenants with reference to the suit property in favour of one Sundarappier as Well as one Sundaresa Iyer, who had been appointed as trustees of the temple by the villagers.
On the basis of these pleadings, the learned Subordinate Judge framed the following issues for trial:
1. Whether the plaintiffs are the hereditary trustees of the suit temple?
2. Whether the suit claim is barred by reason of the order of the Deputy Commissioner in O.A. No. 128 of 1957 and appeal therefrom?
3. To what relief are the plaintiffs entitled?
On a consideration of the oral and documentary evidence placed before him, the learned Subordinate Judge, by his judgment and decree dated 30th November, 1966, answered both issues 1 and 2 in favour of the plaintiffs and decreed the suit as prayed for, setting aside the orders of the Deputy Commissioner and Commissioner, dated 31st August, 1964 and 19th. October, 1965 respectively. It is against this judgment and decree that the present appeal has been preferred by the first defendant in the suit.
4. As in the trial Court, the two points that arise for consideration in this appeal are (i) whether plaintiffs 1 and 2 are the hereditary trustees of the suit temple, and (ii) whether the suit claim is barred by reason of the order of the Deputy Commissioner in O.A. No. 128 of 1957 and the order of the Commissioner in appeal therefrom
5. Before proceeding to consider these two points separately, we may immediately mention that the judgment of the learned Subordinate Judge, though long is rambling, and it is difficult to find out where he was referring to the arguments advanced before him and where he was recording his own conclusions thereon. In view of this, we ourselves have gone through the entire materials placed before the Court and arrived at our own independent conclusions on the controversy before the trial Court.
6. As far as the first point is concerned, we have already referred to Exhibits B-I B2 A-I and A-2 to A-6, and the conduct of the officers of the Department itself in recognizing and dealing with the plaintiffs and their father as trustees of the temple, demanding contributions from them, collecting the contributions and issuing receipts therefor. Having regard to the evidence afforded by Exhibits B- , A-I, B-2 and A-2 to A-6, it would follow that it was the plaintiffs and their forefathers who were in possession and management of the temple and its properties. However, the learnt Counsel for the appellant brought to our notice that the trial Court has not considered certain material pieces of evidence, such as, Exhibits B-7 to B-10 B-13, B-15 and B-23, showing that the villagers were managing the properties and appointing trustees in that behalf We are unable to hold that any one of these documents establishes that the villagers did any act in the management of the temple and its properties. Exhibit B-7 dated 14th July, 1917 is a registered paguthi chit executed by one Rangaswami Padayachi, in favour of Sambasiva Iyer. In this document Sambasiva Iyer, has been described as the agent of Sri Panchavatiswaraswami Temple. Exhibit B-8 is another registered rent deed executed by one Srinivasa Pillai in favour of one Sundarappier, who is described as the trustee of the temple in question. Exhibit B-9, dated 21st January 1924 is yet another registered paguthi deed executed by one Kalayanarama Iyer in favour of Sundarappier described as the trustee of the temple in March, 1925 is a certified copy of the lease deed executed by one Rathnaswami Padayachi in favour of trustee Sundarappier. Exhibit B-13, dated 28th December, 1930 is yet another registered rent deed executed by Rathna Padayachi in favour of Sundarappier. Exhibit B-15, dated 29th May, 1946 is a list of jewels of the plaint temple countersigned by the Gurukkal. The only significance that Gurukkal. The only significance that was claimed with reference to this document was that Sambasiva Gurukkal has not been described there as the trustee of the temple and that, if Sambasiva Gurukkal, was the trustee of the temple there was no occasion for the preparation of this list Exhibit B-23 is the minutes book said to relate to the plaint temple and its affairs, maintained by the villagers. We are not able to place any reliance whatever on any one of these documents for more than one reason. In the first place, it was second defendant who put forward these documents in his written statement itself in support of his case that the plaintiffs or their forefathers were not in management of the temple in question but notwithstanding this, the second defendant did not go into the box to give evidence on behalf of himself or on behalf of the first defendent. Only of the defendants. The failure of the second defendant to give evidence in support to the case put forward by him in the written statement was for obvious reasons. On 31st go into the box to October, 1957 admittedly the second defendant had not been appointed as a the Inspector, Hindu Religious and Charitable Endowments, Mayuram, and that statement has been marked as Exhibit B-4. In this statement he had categorically and clearly stated that it was the plaintiffs and their father Sambasiva Gurukkal and their forefathers who were performing the poojas in the temple as well as functioning as trustees of the temple and that at no point of time did the villagers have anything to do with the management of the temple and its properties. The stand taken by the second defendant in his written statement was totally contrary to the statement made by him in Exhibit B-4 and it Was precisely for this reason that the second defendant did not choose to go into the box to give evidence in support of his case put forward in his written statement. On the other hand, one A. K. Narayanaswami Iyer, as already pointed out, has been examined as D.W. I He stated in his evidence that the villagers had appointed Sundarappier, as trustee of the temple and that he was in management of the temple and its properties, receiving rents from the various persons who as already referred to, had executed paguthi chits in his favour. However, he categorically admitted that he did not know whether any receipts Were issued for the receipt of rents and that he did not know it personally. In one place he stated that Sundarappier, attended to the affairs of the temple for a period of forty-five years and that he died in 1939. If so, Sundarappier should have been in management of the temple and its properties even during the close of the nineteenth century, but there is no evidence whatever to show that Sundarappier had anything to do with the temple and its properties, before Exhibit B-8 dated 8th November, 1921. He further admitted that in Exhibit B-23 there was no mention of any person as being the trustee of the suit temple. The learned Subordinate Judge, who had occasion to watch this witness and notice his demeanour has chosen not to place any reliance on his evidence. We entirely agree with this conclusion of the learned Subordinate Judge for the simple reason that D.W. 1 has not proved, with reference to his personal knowledge, any of the transactions on which reliance has been placed, and there is absolutely no evidence, independent of these documents, that Sundarappier or the villagers were in management of the temple and its properties, were receiving the income from the temple properties and were applying such income in the performance of poojas and other festivals connected With the temple in question. The result is that there is absolutely no evidence to show that the villagers had anything whatever to do with the temple and its properties. On the other hand, the evidence adduced on the side of the plaintiffs is categorically to the effect that the plaintiffs and their forefathers alone were in sole and exclusive management of the temple and its properties and that at no point of time did the villagers interfere with such management. As a matter of fact, none of the documents on which reliance has been placed on behalf of the defendants was put to P.W. 1 and no questions were asked about it. To the general questions put to him, P.W. 1 replied that neither Sundarappier nor Sundaresa Iyer was ever in management of the temple and its properties as trustee.
7. There is one other significant circumstance which would probabilise the case of the plaintiff and negative the case of the appellant. We have already referred to the order of the Deputy Commissioner, dated 7th June, 1959 in O.A. No. 128 of 1957. In that order the Deputy Commissioner himself has recorded a categorical finding that it was the first plaintiff and his father and their forefathers who had been in possession of the temple and its properties. He has recorded in the course of his order:
No doubt, to the knowledge of the public, the Archakas have been in possession for over hundred years rendering pooja services. There have been no other endowed properties for the temple as to suggest other acts of management to the public, and even assuming it implies management to the exclusion of the public, it is not by a third party but by an office-holder which cannot prevail against the right of the public to partake in it when they choose to do so being a public temple. The public interested themselves only in the worship and in giving donations for the deity.
These observations of the Deputy Commissioner himself clearly establish that nobody other than the first plaintiff and. his forefathers was in possession and management of the temple and its properties, and the Deputy Commissioner rejected the case of the first plaintiff solely on the ground that he and his ancestors were not recognized as trustees either by the Government or by any other authority.
7-A. A Bench of this Court had to consider the question whether there is anything illegal or improper in Archakas being trustees of small temples in Muthuswami Gurukkal v. Aiyaswami Thevar (1964) 2 M.L.J. 660. The following head-note itself brings out the principle of the decision:
There is nothing illegal in hereditary trusteeship and pujariship being combined in the same person, especially in the case of small temples where there has been no interference or control by any of the villagers of the place. In the case of small village temples, where the temple property is of insignificant value and the income is hardly sufficient even to meet the routine expenses of the temple, if the Archaka or Poojari is left in management of the temple lands and the affairs of the temple without any interference by any of the villagers for a long number of years, it has to be presumed that with the consent and acquiescence of the worshippers of the village the pujari is the trustee, as well. In such a case it must be held that the poojari managing the lands and affairs has made out his right to hereditary trusteeship and the interests of the temple are not likely to suffer, when the person concerned admits that the lands are temple lands and has never set up any rights to them as his own property.
8. In this case, as we already pointed out, there is no dispute whatever that at all stages the plaintiff's were the hereditary poojaries of the temple. As already pointed out again, the evidence clearly establishes that it was those hereditary poojaries who were in management of the temple and its properties and that at no stage did the villagers interfere with such management. Under these circumstances, we are clearly of the opinion that the principle laid down in the above decision applies to the facts of this case and that consequently it is established that the plaintiffs are the hereditary poojaries and trustees of the suit temple.
9. This takes us to the second point posed for consideration, namely, whether the order passed by the Deputy Commissioner in O.A. No. 128 of 1957 (Exhibit A-19) is a bar to the plaintiffs herein to agitate their claim to hereditary trusteeship to the temple in question. The learned Counsel for the appellant contends that the Act provided for a right of suit against the order of the Commissioner in appeal, that no such suit having been filed against the order of the Commissioner (Exhibit A-20), that order has become final and that therefore the plaintiffs were not entitled to reo on and reagitate the question by filing a fresh application before the Deputy Commissioner Under Section 63 (b) of Madras Act XXII of 1959 in O.A. No. 21 of 1964. The learned Subordinate Judge considered this contention and rejected it. We are clearly of the opinion that the conclusion of the learned Subordinate Judge in this behalf is correct. Section 57 (b) of Act XIX of 1951 enacted :
Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following disputes and matters:..
(b) whether a trustee holds or held office as a hereditary trustee.
The scope of this provision came up for consideration by this Court in Sastri Ammal v. Pravalavarna Naicker (1955) 2 M.L.J. 612 : (1955) 68 L.W. 777 : I.L.R. (1957) Mad. 631 : A.I.R. 1956 Mad. 146 where Rajagopalan, J., held:
If the dispute is whether the office of trustee of a given religious institution is. hereditary, it would certainly come within the scope of Section 57 (b). In my opinion that is all that Section 57 (b) provides for. A dispute between the claimants to succeed to an office, which it is admitted on all hands is hereditary, is, in my opinion not within the scope of Section 57 (b) of Act XIX of 1951.
10. This view was shared by Veer-swami, J. (as he then was) in Chinnathambi Moopan v. Mamundi Moopan (1966) M.L.J. 361. We ourselves have approved of the correctness of the view of Rajagopalan, J., in our judgment in (Venugopala Chettiar v. The Commissioner, H. R. & C. E. Madras) Appeal No. 479 of 1967, dated 27th August, 1973. Consequently it is well-settled that the scope of the jurisdiction of the Deputy Commissioner Under Section 57 (b) of Act XIX of 1951 was to decide whether the trusteeship in relation to a religious institution Was hereditary or not and not to decide whether a particular person was entitled to function as a hereditary trustee at a particular point of time with reference to a temple the hereditary nature of the trusteeship of which had been admitted. It is against the background of this legal position that we have to consider the effect of the order of the Deputy Commissioner in O.A. No. 128 of 1957 and the order of the Commissioner in appeal arising therefrom, as evidenced by Exhibits A-19 and A-20. A copy of the petition filed by the first plaintiff in O.A. No. 128 of 1957 has been marked in this case as Exhibit B-16. In that petition the first plaintiff put forward the categorical contention that he and his forefathers had been functioning not only as poojaries of the temple but also as hereditary trustees of the temple. It was only on the basis of this contention that he sought for a recognition of his hereditary status and rights at the hands of the Deputy Commissioner and for a declaration that he was holding his office in the temple of Sri Panchavatiswaraswami, Anathandavapuram, as a hereditary trustee. As we pointed out already, he had not impleaded any persons as respondents in that petition, though subsequently, his father Sambasiva Gurukkal, his step-brother Subramania Gurukkal, and the legal representatives of another deceased brother, Kailasa Gurukkal, were impleaded as respondents. In the counter filed by those parties, they also asserted along with the first plaintiff that trusteeship to the temple in question was hereditary, and the only contention they put forward was that, so long as Sambasiva Gurukkal, the father was alive, the first plaintiff was not entitled to claim to function as a trustee. Alternatively they contended that, if, for any reason, the Deputy Commissioner was to recognize the first plaintiff also as a hereditary trustee even during the lifetime of Sambasiva Gurukkal, the father, then the others also must be recognized as hereditary trustees. The result was that before the Deputy Commissioner in O.A. No. 128 of 1957 there was no controversy or dispute about the hereditary character of the trusteeship to the temple. All the persons who had been made parties to O.A. No. 128 of 1957 unanimously claimed that trusteeship to the temple in question was hereditary. Consequently the only matter in controversy Was whether the first plaintiff herein could be recognized as a hereditary trustee even during the lifetime of his father, Sambasiva Gurukkal. Therefore the Deputy Commissioner was not called upon to decide whether the trusteeship of the temple was hereditary or not; what he was called upon to decide was Whether during the lifetime of Sambasiva Gurukkal the first plaintiff could be recognized as a hereditary trustee or not. On the first point, if there was controversy, the Deputy Commissioner would have jurisdiction to decide, and on the second point he had no jurisdiction at all. Under these circumstances, we are clearly of the opinion that the Deputy Commissioner should have dismissed. O.A. No. 128 of 1957 on the ground that he had no jurisdiction to decide as to who functioned as hereditary trustee at a particular point of time, where trusteeship of the temple was admittedly hereditary. Having regard to the scope of the controversy between the parties in O.A. No. 128 of 1957 there was neither occasion nor necessity for the Deputy Commissioner to go into the question whether the trusteeship of the temple in Question was hereditary or not. Unfortunately, as we already pointed out, the Deputy Commissioner posed for himself the first question for consideration, whether trusteeship of the temple was hereditary or not, even though that question did not at all arise for consideration before him. It is against this background that we have to consider whether that order and the order of the Commissioner on appeal therefrom are a bar to the filing of a fresh petition Under Section 63 (b) of Act XXII of 1959 by the plaintiffs herein. It is admitted that there were no provisions in Act XIX of 1951 to the effect that the order of the Commissioner on appeal shall be final, if no suit was filed to set aside the same, as contemplated by the Act. Consequently, the question will be a general one, namely, whether the order of the Deputy Commissioner in O.A. No. 128 of 1957, and of the Commissioner in appeal, would constitute res judicata so as to prevent the plaintiffs herein from reagitating the same question under the provisions of Section 63 (b) of Act XXII of 1959. The principles of res judicata in relation (to suits have been enunciated in Section 11 of the Code of Civil Procedure. However, it he provisions contained in that section are not exhaustive, and consequently it he general principles of res judicata would apply to other proceedings even though Section 11 of the Code of Civil Procedure would not in terms apply. For the purpose of the application of the general principles of res judicata a particular matter should have been directly and substantially in issue in former proceedings so as to bar the reconsideration of the same matter in subsequent proceedings. As we pointed out already, in this case the question whether the trusteeship of the temple was hereditary or not was not in issue between the parties in O.A. No. 128 of 1957, and consequently the Deputy Commissioner had no jurisdiction whatever to decide a question which was not raised before him. Therefore, if the Deputy Commissioner had rendered a finding on that question which was not in controversy or dispute before him, his finding cannot be said to be final or conclusive so as to bar the agitation of the same question in a properly framed proceedings instituted subsequently. In this view, We are clearly of the opinion that the order of the Deputy Commissioner in O.A. No. 128 of 1957 and the order of the Commissioner on appeal arising therefrom did not bar the application filed by the plaintiffs herein before the Deputy Commissioner Under Section 63 (b) of Act XXII of 1959.
11. The result is that there are no merits; in the appeal and it is accordingly dismissed with costs.
12. While decreeing the suit instituted by the plaintiffs herein, the learned Subordinate Judge has not awarded costs in favour of the plaintiffs. Questioning this, the plaintiffs have preferred a memorandum of cross-objections. In view of the conclusion we have come to on the merits of the controversy, once the suit was decreed, the learned Subordinate Judge, except for reasons to be recorded, to the contrary, ought to have awarded costs in favour of the plaintiffs. The learned Subordinate Judge himself has not given any reasons whatever in his judgment for not awarding costs in favour of the plaintiffs. However, as we have held that the plaintiffs were entitled to succeed, we are of the opinion that the learned Subordinate Judge should have awarded costs in favour of the plaintiffs. The memorandum of cross-objections is therefore allowed, the result of which is that the suit is decreed with costs throughout. But there will be no order as to costs in the memorandum of cross-objections.