(VENKATARAMAN, J.):

1. This is an appeal by the plaintiff, whose suit has been dismissed by the learned Subordinate Judge, Tirunelveli. The plaintiffs filed the suit in a representative capacity under O. 1, R. 8, C.P.C. for a declaration that a particular temple in their village, Sivagurunathapuram, belongs exclusively to the community of the plaintiffs residing in that village, namely, Hindu Nadars, and that it is a denominational temple, within the meaning of Art. 26 of the Constitution of India. The suit was necessitated by the fact that the Hindu Religious and Charitable Endowments Department (defendant in the suit) was trying to interfere with the management of the temple by the plaintiffs and was seeking to appoint some trustees. The plaintiffs contend that the defendant is not entitled to interfere with their management and they seek the necessary declaration and injunction.

2. The defendant filed a written statement disputing the claim of the plaintiffs that the temple was a denominational temple. They further contended that, even if it was a denominational temple, they were entitled to exercise supervisory control. An enquiry was pending under S. 49 of the Act (1959) and it was contended that, because the enquiry was still pending, the suit was premature. No other contention was specifically raised that the suit was not maintainable under any of the provisions of the Act. But at a later stage, on 23rd January, 1969, an issue was framed, apparently on the oral submission of the defendant, to the following effect:

Whether the suit as framed is maintainable by virtue of the provisions of Act XXII of 1959

The other five issues which had already been framed were these:

1. Whether the Muppidithi Amman temple of Sivagurunathapuram is a private temple belonging exclusively to the Hindu Nadars of Sivagurunathapuram

2. Is it a public temple and are other community people and people of other places entitled to any right in the said temple

3. whether the plaintiffs are the hereditary trustees of the said temple, and are they entitled to be in sole management thereof

4. Whether the defendant has any right to interfere with the management or affairs of the said temple

5. To what reliefs and costs are the plaintiffs entitled

Evidence was adduced on issues 1 and 2, and second plaintiff was examined as P.W. 1. A number of documents were marked on the side of the plaintiffs. The defendant did not mark any document and did not adduce any oral evidence. The second plaintiffs evidence was to the effect that the temple belonged to the religious denomination called Sivagurunathapuram Hindu Nadars, that it was an ancient temple, that other communities had no right or interest in the said temple and that similarly people from other places too had no right or interest in the temple. He swore that the management of the temple was exclusively with Hindu Nadars from ancient times and that the trustees were elected unanimously by the Hindu Nadars of Sivagurunathapuram. The cross examination did not really shake the above evidence. The learned Judge (Thiru D-S. Alexander), who tried the suit, accepted this evidence and recorded the following findings on issues 1 and 2:

Under the issues it is found that the Muddipathi Amman temple of Sivagurunathapuram, hamlet of Surandai village, belongs exclusively to the Hindu Nadars of Sivagurunathapuram village, who constitute a section of the public, and hence it is a public temple. But, it does not belong to other community people and people of other places. The issues are accordingly found.

He then went on to discuss additional issue, framed on 23rd January, 1969 and observed

In view of the discussion and finding on issue 1, it follows that the suit temple is a public temple belonging exclusively to the Sivagurunathapuram Hindu Nadars, who constitute a section of the public. Therefore, the Madras Hindu Religious and Charitable Endowments Act, XXII of 1959, applies to the institution in question. The remedy of the plaintiffs is to exhaust the remedies provided for under the Madras Act XXII of 1959, and then approach the civil court. In Santhanagopal Chettl v. Seetharama Chettl 1968-2-M.L.J. 41 it had been held that, when the applicability of the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1959 to a temple is challenged, the Deputy Commissioner has jurisdiction to decide that question under S. 63(a) of the Act, and consequently a suit filed in a civil court claiming certain reliefs on the basis that provisions of the Act do not apply to the suit tern, pie and as such is outside the purview of the Act would be barred by S. 63(a) read with S. 108 of the Act The claim of the plaintiffs is that the provisions of the Act do not apply to the temple in question and this claim could be decided by the Deputy Commissioner and, therefore, this suit is not maintainable. The issue is accordingly found.

3. In view of his findings on issues 1 and 2 and additional issue 1, the learned Judge left issues 3 and 4 open. On issue 5, in view of his findings on issues 1 and 2 and additional issue 1. he held that the suit was barred by S. 63(a) read with S. 108 of the Act and dismissed the suit. Aggrieved by the dismissal of the suit, the plaintiffs have preferred this appeal.

4. The submission of Mr. T.R. Ramachandran, learned counsel for the plaintiffs-appellants, is that the learned judge is wrong in holding that the suit is barred by the provisions of S. 108, read with S. 63(a) of the Act. S. 63(a) says

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(a) Whether an institution is a religious institution.

S. 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.

The submission of learned counsel is this. The plaintiffs proceed on the footing that the institution belongs to a section of the public, viz., the Hindu Nadars of Sivaguruanalha-puram village, it is a temple as defined in S. 6(20) of the Act which defines temple as

temple means a place by whatever designation known used as a place of public releigious 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.

Therefore, it is a religious institution within the meaning of Sec. 6(18) which says

Religious institution means a math, temple or specific endowment.

Thus, the plaintiffs themselves admit that the temple in question is a religious institution, and no question falls to be decided by the Deputy Commissioner under S. 63(a) of the Act whether it is a religious institution, because that is a matter of concession. The real question for determination by the court is whether it is a denominational temple under Art, 26 of the Constitution of India. If it is a denominational temple, S. 107 of the Act would restrict the power of interference by the department. The plaintiffs suit seeking a declaration that it is a denominational temple is not one that is contemplated by S. 63(a) or other provisions of the Act, and, therefore, the normal forum, viz, the civil court, will continue to have jurisdiction under S. 9 of the C.P.C.

5. In support of this submission, learned counsel refers to the decision of a Bench of this court (Satyanarayana Rao and Rajagopalan, JJ.) in Dr. Ananda Baliga v. Srimath Ananteswar temple 1952-1-M.L.J.678; 67 L.W. 450. He further contends that the learned trial Judge misapplied the decision of Ismail, J. in Santhanagopala Chettiar v. Seetharama Chettiar 1968-2-M.L.J. 41 and that even Ismail, J. has expressly stated in that decision that his decision would not cover a case where the relief claimed is a declaration that the particular temple is a denominational one. Learned counsel then referred to the decision of Ramanujam, J. in Muthusami Mudaliar v. Subbaraya 84 L.W. 91 where in a similar case, the learned Judge followed the decision of Satyanarayana Rao and Rajagopalan, JJ., aforesaid and referred to the observations of Ismail, J. that he was not dealing with a case where the declaration claimed is that a particular temple is a denominational one. Learned counsel also submitted that actually the decision of Ismail, J., in Santhanagopala Chetti v. Seetharama Chetti 1968-2-M.L.J. 41, was reversed by Kailasam and N.S. Ramaswami, JJ. In Santhanagopala Chetti v. Seetharama Chetti L.P.A. 58/68 & 31/69 d, 27th June 1973, since reported in 87 L.W. 182 and that the learned Judges in the said Letters Patent Appeal have held in that case also that the actual declaration sought was that the temple was a denominational one and that the suit for such a declaration would not be hit by the provisions of S. 63(a) of Act XXII of 1959. The learned Judges followed the decision of Satyanarayana Rao and Rajagopalan, JJ.

6. It seems to us that the argument of Mr. Ramachandran is sound and must be accepted. If we read the plaint, it is clear that it is definitely averred that the suit temple is a denominational temple belonging exclusively to the Hindu Nadars of Sivagurunathapuram Village,(the word denomination always being used in the sense of Art. 26 of the Constitution of India;. The plaintiffs specific case is that with such an institution the defendant department tried to interfere, at any rate substantially. The decision of Satyanaravana Rao and Rajagopalan, JJ. in Dr. Ananda Baliga v. Ananteswar temple 1952-1-M.L.J. 678; 67 L.W. 450, clearly shows that such a suit would not be barred at all under the provisions of Ss. 108 and 63 of Act XXII of 1939. It is true that it was a case under Act 2 of 1927, but the provisions were similar. The provision corresponding to S. 63 was S. 84(1) which ran as follows;

If any dispute arises as to (a) whether an institution is a math or temple as defined in this Act; (b) Whether a trustee is a hereditary trustee as defined in this Act, or not or (c) whether any property or money endowed is a specific endowment as defined in this Act, or not, such dispute shall be decided by the Board and no court in the exercise of its original jurisdiction shall take cognisance of any such dispute.

The provision corresponding to S. 108 was S. 73(4), which provided:

No suit or other legal proceeding claiming any relief provided in this Act, in respect of such administration or management shall be instituted except under and in conformity with the provisions of this Act.

There also the plaintiff proceeded on the footing that a particular temple belonged to the Gowd Saraswat Brahmin community in South Kanara. The Board contended that the suit was barred under the provisions of Ss. 84 and 73 aforesaid. This contention was upheld by the trial court. The plaintiff preferred the appeal. The appeal was allowed on this point. The learned Judges extracted the definition of temple which was similar to the definition in the present Act, and observed:

The argument is, if a question arises whether a temple is owned by the Hindu community as a whole or whether it is owned only by a section of that community, the dispute would then be which can aptly be described as raising the question whether the institution is a temple or not within the meaning of S. 84(1) of the Act. In our opinion, if this section is so construed, it would be placing a strained construction upon it and we think that the language of the section does not warrant such an interpretation. The section is intended to give jurisdiction to the Board to decide a dispute when a dispute is raised, whether a particular institution is a math or temple as defined by the Act, and not a dispute which admits the institution to be a temple but that the temple is owned by a particular religious denomination such as the Gawd Saraswat Brahmin community and not by the Hindu community as a whole. S. 84(1)(a) of the Act, therefore, in our opinion, does not cover the dispute raised in the present suit, and, therefore, the prohibition against the exercise of the jurisdiction by the civil court under S. 84(1) does not come into operation.

This decision has been followed by Kailasam and N.S. Ramaswami, JJ. in Santhanagopala Ghetti v. Seetharama Chetti L.P.A. 58/68 & 31/69, since reported in 87 L.W. 178. There also, the suit was substantially for a declaration that the temple was a denominational one, though the plaint was not happily worded, and the learned Judges held that such a suit was not hit by S. 63 of the Act. They observed:

Nowhere in the plaint there is any allegation that the temple is not a religious institution as defined under the Act. The very averments in the plaint go to show that it is a temple as defined in the Act and it is conceded that the members of the particular community had a right of worship in the temple. The learned Judge seems to have understood the pleadings in the plaint as saying that the temple in question was a private temple. But, there is nothing in the plaint to show that the plaintiffs claimed the temple as a private temple, not coming under the definition of the terms religious institution or temple under the Act. If the question really is as to whether the temple is a religious institution as defined under the Act or not, naturally it would be a question exclusively Within the jurisdiction of the Deputy Commissioner as per the provisions of S. 63 of the Act. But as a matter of fact that is not the question to be decided in the suit, because, from the very averments it is clear that the plaintiffs concede that it is a religious institution as defined under the Act. All that they claim is that it is a denominational temple entitled to the protection contained in Art. 26 of the Constitution, though it is not so specifically stated in so many words. Under these circumstances, we are of the view that the civil court has jurisdiction to entertain the suit regarding the main prayer also.

7. It is of interest to note that even Ismail, J., has expressly stated in Santhanagopala Chetti v. Seetharama Chetti 1952-1-M.L.J. 678; 67 L.W. 450., that he was leaving open the question whether a suit for a declaration that a temple was a denominational one would be maintainable in the civil court. There are, do doubt, some observations suggesting that the validity of the Bench decision in Dr. Ananda Baliga v. Ananteswar Temple 1952-1-M.L.J. 678; 67 L.W. 450 would be somewhat shaken by be decision of the Supreme Court in Stale of Madras v. Kunnakudi Melmatam 1966 2 S.C.J. 175; A.I.R. 1965 S.C. 1570 1966 2 M.L.J. 13 S.C. But, the decision of the Supreme Court did not touch this question at all.

8. Mr. Kumaraswami Pillai, learned Additional Government Pleader invited us to hold that the decision requires reconsideration, and referred in this connection to S. 51 of the Act, which says

In making appointments of trustees under S. 47 or S. 40, the Commissioner or the Area Committee, as the case may be shall have due regard to the claims of persons belonging to the religious denomination for whose benefit the institution concerned is chiefly intended or maintained.

The argument is that S. 51 would show that it is open to the Commissioner to appoint trustees even in the case of a denominational temple. Assuming that this is the scope of S. 51, it has no bearing on the construction on S. 63(a) of the Act on the question whether a suit for a declaration that a temple is a denominational temple is not maintainable in the civil court. In our opinion, such a suit is outside the purview of S. 63(a) and can be tried only by the civil court. The question as to the extent of the Commissioners powers of interference would arise after the decision of the court, at a subsequent stage, and it is no bar to the maintainability of the suit. The scope of the Commissioners powers of interference is raised by issues 3 and 4 in this case, and will not arise at the present stage.

9. We, therefore, reverse the finding of the learned Subordinate Judge, on additional issue 1, and hold that the suit is maintainable.

10. We now turn to issues 1 and 2. The reason why the learned Judge apparently tried those issues was that if the plaintiffs bad not been able to make out a case that the suit temple was a denominational one, it would be idle to try the question whether the suit would be maintainable (instructions of this court prohibit a preliminary disposal on a pure point of law). Though issues 1 and 2 proceed on the basis that the question at issue was whether the temple was a private temple, and therefore not governed by Act XXII of 1959, it is clear that that was not really the question raised by the pleadings. Though in paragraph 3 of the plaint it is stated (wrongly): It is a private temple belonging to this denomination, a reading of the allegations in the plaint, as a whole, clearly shows that the case of the plaintiff was that it was a denominational temple within the meaning of Art. 26 of the Constitution, and that the department was not entitled to interfere. That is how the plaint was understood by the defendant in their written statement and they disputed the claim of the plaintiffs that it was a denominational temple. Thus, despite the wrong wording of the issues, the real question at issue was understood by both the parties and they proceeded to trial. We would also refer to the observations of the Supreme Court in Nagubai Ammal v. Shamarao 1956 S.C.R. 451, 461 to show that though issues 1 and 2 were not correctly drafted in this case, that would not matter, since the parties understood the real issue for determination and went to trial. Their Lordships refer to observations of Lord Dunedin in Siddik Md. Shah v. Mt. Saran 58 M.L.J 7; A.I.R. 1930 P.C. 57 that no amount of evidence can be looked into upon a plea which was never put forward and proceed to observe

The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto.

11. The only available evidence is that of P.W. 1. There is no reason to reject his evidence, and that evidence, if accepted, clearly shows that the temple is an ancient temple, that it belongs exclusively to the Hindu Nadars of Sivagurunathapuram village and that throughout it has been managed only by them. Mr. Kumaraswami Pillai, the learned Additional Government Pleader, appearing for the defendant-department, invited us to hold that the evidence of P.W. 1 would not be sufficient to establish the claim of the plaintiffs. He referred to the decision of Ramamurti and Ganesan, JJ. in Rajagopalier v. Commissioner, H.R. & C.E. A.S. 645/63 D./31-7-70 since reported in 84 L.W. 86 wherein it was stated:

In order to establish that the temple in question is governed by the provisions of Art. 26(a) and (b) of the Constitution, it behoves the plaintiff to establish that the temple in question belongs to the Sowrashtra Hindu community of Madurai, that the said Sowrashtra community is a religious denomination and that the said community has the right to manage the affairs of the temple.

Learned counsel submitted that in that case there was much better evidence than is available in the present case and that that was why the learned Judges held that the temple in that case was a denominational one. In our opinion, however, the quantity and quality of evidence which is necessary is bound to vary from case to case and that, so far as this case is concerned, the criteria laid down by the learned Judges have been satisfied.

12. We, therefore, confirm the finding of the learned Subordinate Judge on issues 1 and 2, viz, that the suit temple is a denominational temple belonging exclusively to the Hindu Nadars of Sivagurunathapuram village and that it is governed by Art. 26 of the Constitution of India and S. 107 of the Act XXII of 1959.

13. Issues 3 and 4 raise the question whether, even on the finding that the temple is a denominational one, the defendant-department can interfere, and, if so, the extent of that interference. As already seen, the learned Subordinate Judge has left these questions open, and counsel on both sides before us agree that we may remand the suit for decision on those issues.

14. We accordingly set aside the finding of the learned Subordinate Judge on additional issue 1 and hold that the suit is maintainable. We confirm the finding on issues 1 and 2. We remand the suit for decision on issues 3, 4 and 5.

15. The parties will bear their own costs in this appeal. The court fee paid on the memorandum of appeal will be refunded.