K.S. Venkataraman, J.
1. This is an appeal against the order of remand passed by the learned District Judge of Kanyakumari in A.S. No. 38 of 1967 on his file remanding the suit O.S. No. 11 of 1965, on the file of the Subordinate Judge of Nagercoil, for trial. The suit was dismissed by the learned Subordinate Judge on a preliminary point that the Civil Court had no jurisdiction to try the suit. The decision was reversed by the learned District Judge, who has held that the Civil Court has jurisdiction. The question, therefore, for decision is whether the Civil Court has jurisdiction to try the suit. The question arises under the following circumstances:
The suit was filed by the plaintiffs for a declaration that a certain temple known as Bhadrakali Amman Temple and its properties constituted a public trust and for recovery of possession of the properties from the defendants. The plaintiffs alleged that they were the only constituted trustees. Earlier proceedings under Section 145, Criminal Procedure Code, were resorted to. In these proceedings, it was held that the defendants were in possession. That order was passed on 25th September, 1963. The plaintiffs wanted to get rid of that order also and urged that also as a reason for saying that the Civil Court had jurisdiction.
2. The contention that the suit was not maintainable in a Civil Court was raised by the defendants by an application, I.A. No. 485 of 1965, invoking Sections 63, 69, 70 and 108 of the Madras Hindu Religious and Charitable Endowments Act, (XXII of 1959). Section 63 of the Act says:
Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide following disputes and matters: (a) whether an institution is a religious institution.
3. Section 69 of the Act provides for a right of appeal to the Commissioner against the order of the Deputy Commissioner. Section 70 provides for a suit in the Court (defined as the Subordinate Judge's Court in the area in Section 6 (7) (m) of the Act) within ninety days of the receipt of the order of the Commissioner.
4. Section 108 says:
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.
It was urged in the application, I.A. No. 485 of 1965, that an application O.A. No. 8 of 1964, had been filed before the Deputy Commissioner under Section 63 (a) for a declaration that the Bhadrakali Amman Temple was a religious institution as defined in the Act, that is to say, was a temple in which the public had a right of worship. The case of the defendant was that the temple was not one in which the public had a right of worship and that it was, what is loosely termed, a private temple of the family of the defendants and that the properties also belonged to the private trust. On the question of jurisdiction, their contention was that the plaintiffs could not come to Court straightaway and that they should pursue the application filed under Section 63 before the Deputy Commissioner, file an appeal if necessary to the Commissioner against the order of the Deputy Commissioner, and only thereafter, file a suit under Section 70 of the Act. It is said that Section 108 of the Act forbids the plaintiffs coming to Court straightaway.
5. As a matter of detail, it may be stated that it is pointed out by the plaintiffs in their counter in I.A. No. 485 of 1965, that the petition, O.A. No. 8 of 1964, has been filed by some other villagers, and not by the plaintiffs in this case, and that the plaintiffs in this case are only respondents in the said O.A. No. 8 of 1964. But that does not really affect the question we have to decide, because the contention of the defendants (Appellants before me) is that irrespective of the circumstances that O.A. No. 8 of 1964 has not been filed by the plaintiffs in this case, the only course left open to the plaintiffs is to file such an application before the Deputy Commissioner in the first instance, then undergo the process of an appeal to the Commissioner and only thereafter, institute a suit, and that the Court had no jurisdiction to entertain the suit filed straightaway. That is the point for decision.
6. The question need not be considered elaborately because there is a direct decision of a Bench of this Court in Avisomma v. Kunhali (1957) 1 M.L.J. 5, confirming the decision of Rajamannar, C.J., S.A. No. 1396 of 1948. That was no doubt a decision under the Madras Hindu Religious Endowments Act (II of 1927). But, as we shall see, the material provisions are the same, and in my opinion, that decision governs the present case. The question before Rajamannar, C.J., arose out of a suit filed for redemption of some items of properties which originally belonged to a certain Devaswom. They had been demised to the Koothambath Koyitti tarward. The Koothambath Koyitti tarward sub-mortgaged the properties to one Ayyammad in or about 1923. Later in 1930, Ayyammad executed a consolidated kanom deed including some other items. The Devaswom conveyed the six items of properties in 1943 to the plaintiff in the suit O.S. No. 513 of 1945, on the file of the District Munsif of Kuthuparamba, which gave rise to the second appeal. Basing on this conveyance, the plaintiff filed the suit for redemption of the sub-mortgage of 1923. The defence, which is material to us, was that the plaintiff had no title to redeem. The argument was based on the contention that Devaswom was a temple within the meaning of the Madras Hindu Religious Endowments Act (II of 1927), and that the sale of the properties of the temple to the plaintiff by the trustees without the sanction of the Hindu Religious Endowments Board was void under Section 76 of Act (II of 1927). It was therefore, necessary to decide the question whether there was a temple as defined in the Act. On the evidence, Rajamannar, C.J., had no hesitation in agreeing with the Courts below that there was a temple in the sense that the public had a right of worship. It followed that, because of Section 76 of Act II of 1927, the plaintiff had no title. It was, however, urged before him that the question whether there was a temple could not be gone into by the Civil Court at all and that had to be decided only by the Hindu Religious Endowments Board under Section 84 of the Act. The section ran thus:
1. If any dispute arises as to whether an institution is a math or temple as defined in this Act or whether a temple is an excepted temple, such dispute shall be decided by the Board.
2. Any person affected by a decision under Sub-section (1) may, within one year, apply to the Court to modify or set aside such decision; but, subject to the result of such application, the order of the Board shall be final.
7. Incidentally, it may be stated that the above section was amended by Act (X of 1946) substituting the following (so far as is material):
(1) If any dispute arises as to
(a) Whether an institution is a math or temple as defined in this Act,
(c) ...such dispute shall be decided by the
Board and no Court in the exercise of its Original jurisdiction shall take cognizance of any such dispute.
(2) Any person affected by a decision under Sub-section (1), may, within six months, apply to the Court to modify or set aside such decision.
8. A right of appeal to the High Court was provided. The contention as urged before Rajamannar, C.J., and the way in which he repelled it, appear from the following passage:
The argument of Mr. Achuthan Nambiar for the respondent if I understood him aright, was that whenever there was any dispute between any parties in any connection as to whether a particular temple was or was not a temple as defined in the Act no Court has jurisdiction to decide that dispute and it was only the Board that was competent to decide it. According to this argument it did not matter that one of the parties to the dispute was or was not the Board itself. When I asked him what practical result would follow from such a state of law, that is to say, what should happen if incidentally in a suit between the parties this question arose, learned Counsel was unable to give a satisfactory reply. At one time he suggested that the suit must be dismissed if it was necessary to establish the fact that a temple was a public temple. At another time he said that the question should be referred to the Board. I am unable to see under what provision an ordinary civil Court, say a Munsif's Court, will have jurisdiction to make a reference to the Board and compel the Board to take up the matter on file and submit its decision to the Court. It may be that the Board in a particular case may not at all be interested in deciding the dispute. Apart from any consideration of practical difficulty, I am clearly of opinion that on a reasonable construction of Section 84 the contention of the respondent is untenable. I think that the dispute referred to in Section 84 is a dispute between the trustees of an institution, on the one hand and the Board on the other. In such a case the Act specially provides that the dispute shall be decided by the Board in the first instance and it is only thereafter that the District Judge is given the right to set aside or modify or confirm such decision. It will not be open to an aggrieved person to file a suit against the Board for a declaration that a particular temple is not a temple within the meaning of the Act and therefore the Board had no jurisdiction in respect of it. The decisions relied upon by learned Counsel for the respondent support him only thus far.
It is not necessary to quote the rest of the passage.
9. The above decision was affirmed by the Bench (Govinda Menon and Rama-swami, JJ.) in Avisomme v. Kunhali (1957) 1 M.L.J. 5:
We agree with the learned Chief Justice that a Civil Court has jurisdiction to decide whether a particular institution is a public temple or not when such a question arises incidental to other disputes in the case before the Court.
10. Against that view, it appears to have been pressed before the Bench by the learned Counsel for the appellant that there might be a conflict of decisions between the view expressed by the civil Court in a litigation purely between two private parties and the view which the Board may take in a dispute between the Board and the parties. This argument was repelled thus:
When once this Court agreeing with the Court below, holds that the institution is a public temple, it is next to an impossibility that the Hindu Religious Endowment Board would come to a different conclusion in order to create conflict of decisions. We are in entire agreement with the observations of the learned Chief Justice and it is not necessary to reiterate the reasons given by him in his judgment.
11. It will thus be seen that in deciding the title of the plaintiff in that case to redeem, it was necessary to decide the question whether the institution was a temple (in which the public had a right of worship) and notwithstanding Section 84 of the Act, it was held that because the dispute was only between two private parties and the Board was not directly concerned, the civil Court had jurisdiction. Two reasons are given in support of this view, (1) that there is no provision by which the ordinary civil Court can make reference to the Board and compel the Board to submit a decision to the Court and (2) that the Board may not be interested in deciding the dispute. In view of the reasons, the learned Chief Justice held that Section 84 would operate as a bar only when the Board itself was interested in deciding the question. I respectfully adopt these reasons and I would add that one could well understand the reason for such a provision like Section 84 of the Act and the corresponding provisions in the succeeding Act giving the initial jurisdiction of the determination of the question to the Board where the Board wants to move in the matter. The Board's band should not be tied where the Board itself wants to initiate action about a particular institution, and, therefore, the Board is given initial jurisdiction to determine the question. But its decision is subject the result of a suit, but no stay has to be granted by the civil Court. The provision against stay itself fortifies the view that where the Board is concerned, its hand should not be fettered and conversely, where the Board is not concerned, there is no reason why the ordinary civil Court cannot decide the dispute. It only remains to point out that the provision in the present Act, Act XXII of 1959, on this point, are similar to the provisions in Section 84 of Act II of 1927. Hence the reasoning of the Bench binds me.
12. The decision of the learned District Judge is, therefore, right, though a reading of his judgment shows that he has missed the real point of the Bench decision. It is unnecessary to refer to the other decisions quoted before me. Similarly, it is not necessary to go into the other question whether the plaintiffs had necessarily to come to the civil Court because of the order passed under Section 145, Criminal Procedure Code, in favour of the defendants. It is enough to note the contention of the plaintiffs that Article 47 of the Schedule to the Limitation Act of 1908 prescribed a period of three years to get rid of an adverse order under the Code of Criminal Procedure.
13. The appeal is accordingly dismissed, but without costs. Leave to appeal is applied for, but finding that there is a Bench decision on the point, about the correctness of which I have little doubt, leave is declined. I would only add that I understand the observations of the Bench to recognise that the decision between the private parties will not be res judicata against the Board, but that as a matter of probability, it is unlikely that the Board will come to a different conclusion.