S.A.No.305 of 2004: (Prayer: This Second Appeal filed under Section 100 CPC, preferred against the judgment and decree dated 7.4.2003 passed in A.S.No.85 of 2001 on the file of the Subordinate Judge, Padhmanabhapuram, confirming the judgment and decree dated 28.6.2001 passed in O.S.No.121 of 1994 on the file of the Principal District Munsif Court, Padhmanabhapuram.) Contempt Petition No.22 of 2005: (Prayer: This Contempt Petition is filed under Section 10 of the Contempt of Courts Act, 1871, to punish the respondents for violating the order in CMP No.1526 of 2004 in S.A.No.305 of 2004 dated 14.11.2004.) W.P.No.1727 of 2005: (Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records pertaining to the proceedings of the third respondent in No.501/2004 dated 9.7.2004, quash the same as illegal, void and ultra vires and direct the second respondent to conduct an enquiry in accordance with law upon the legal notice of the petitioner dated 29.6.2004.) 1. One Mr.Parameswaran Pillai and Damodaran Pillai jointly filed a suit in O.S.No.121 of 1994 on the file of the Principal District Munsif Court, Padmanabhapuram against one Manikandan Nair and Manmadan, praying for a decree of declaration of their right to administer a temple known as "Badrakaliamman Temple" and for a decree of permanent injunction restraining the defendants from interfering with the plaintiffs right to administer the temple and the properties comprised in Schedules A and B to the plaint. The said suit was taken up along with two other suits in O.S.Nos.324 of 1996 and 145 of 1998 by the Trial Court. In the meantime, during the pendency of the suit O.S.No.121 of 1994, the first plaintiff Parameswaran Pillai died and his legal heir P.Madhavan Pillai was impleaded as the third plaintiff. But later he also died. One Mr.P.Sundareswaran Nair was impleaded as the fourth plaintiff and in addition to the two defendants, who were originally made parties, 24 others were additionally impleaded as defendants. 2. By a common judgment and decree dated 28.6.2001, the Trial Court dismissed all the three suits. Two appeals were filed in A.S.Nos.85 of 2001 and 123 of 2001, the former arising out of the judgment in O.S.No.121 of 1994 and the latter arising out of the judgment in O.S.No.324 of 1998. The Sub Court, Padmanabhapuram, dismissed both the appeals. Therefore, the fourth plaintiff and the seventh defendant in O.S.No.121 of 1994 have come up with the Second Appeal S.A.No.305 of 2004. 3. At the time of admission of the Second Appeal, an interim order of injunction was granted, restraining the respondents/defendants from demolishing the temple any further. Complaining that the said order had been violated, the appellants in the Second Appeal have also filed a Contempt Petition in Contempt Petition No.22 of 2005. 4. In the meantime, the villagers, who were the contesting defendants in O.S.No.121 of 1994 and who claimed the suit temple to be a public temple, created a Trust in the name of the temple and registered the same. Contending that the registration of an institution for the management and administration of the suit temple, was an illegal act, the appellants have filed a writ petition in W.P.No.1727 of 2005, challenging the proceedings of the Sub Registrar. This is how, we have on hand, a Second Appeal, a Contempt Petition and a Writ Petition and all of them were taken up together for disposal. 5. I have heard Mr.D.Rajagopal, learned counsel appearing for the appellants in the second appeal and the petitioners in the Contempt petition and the writ petition. I have also heard Mr.K.Sreekumaran Nair, learned counsel appearing for the respondents-3 to 13 in the Second Appeal, who support the case of the appellants in the second appeal and Mr.S.S.Sundar, learned counsel appearing for the respondents 1 and 15 to 26, who are the contesting parties in the second appeal. 6. Since a decision in the Second Appeal would actually throw light on the facts leading to the various disputes between the parties and would make the task of deciding the contempt petition and the writ petition easy, let me now take up the second appeal first. SECOND APPEAL: 7. As stated in the first paragraph, one Mr.Parameswaran Pillai and Mr.Damodharan Pillai filed a suit in O.S.No.121 of 1994, praying for the following reliefs:- "(a) The right of the plaintiffs to administer the plaint temple and its properties scheduled as A and B schedule properties be declared. (b) The defendants be restrained by a permanent injunction from interfering with the administration of the temple and the properties comprised in plaint A and B schedule properties." 8. Their case in the plaint was that the suit properties originally belonged to Anuvattathu Vallu Veedu of Mangalam Desam; that the said Tarwad was divided into two branches by name Pattanam Kadu and Kizhakku Veedu; that Kizhakku Veedu was later known as Marikkonathu Puthan Veedu; that the temple described in suit A schedule and item 1 of suit B schedule was constructed and an idol installed there before the division of the Tarwad; that certain properties described in the plaint schedule were set apart for the maintenance of the temple and performance of poojas; that the branch Pattanam Kadu partitioned their properties on 31.11.1101 Malayalam Era and the plaint A schedule properties were included in schedule K to the Partition Deed and set apart for the administration of the temple; that under the said partition, one Easwara Pillai, who was arrayed as the 14th party to the Partition Deed, was conferred the right to deal with the plaint A schedule properties and to administer the temple as its trustee; that in the partition, it was stipulated that the eldest male member had to deal with the properties and administer the temple; that after the death of Easwara Pillai, his brother Narayana Pillai succeeded to the trusteeship by virtue of being the eldest male member; that after his death in 1990, the first plaintiff succeeded, as the senior most male member of the family; that similarly, Kizhakku Veedu (which later became Marikkonathu Puthan Veedu) was also partitioned by a Deed dated 16.7.1089 Malayalam Era; that the temple properties were described in schedule E to the said Partition Deed; that these properties are described in schedule B to the plaint; that under the said Partition Deed, one Ayyappan Ananthan was made the trustee and it was stipulated that the eldest male members in succession would become trustees; that the said partition was reiterated in a second Partition Deed dated 5.5.1106 Malayalam Era; that the trustees of both the branches were managing the affairs of the temple; that the second plaintiff was the eldest male member of the Kizhakku Veedu; that besides the family members of both branches, the members of the public of the locality were also permitted to offer worship and their offerings were accepted only on permission from the trustees; that the general public have no manner of right to interfere with the administration of the temple; that on 23.1.1994, the people of the village Mangalam Desam attempted to convene a meeting within the temple compound and attempted to form a Committee for the administration of the temple; and that therefore, the plaintiffs were compelled to file the suit to assert their right of ownership and the right to administer the temple and its properties. 9. The first defendant in O.S.No.121 of 1994 filed a written statement contending inter alia that the original Anuvattathu Vallu Veedu got divided not into 2 branches, but into 4 branches by name (i) Puthan Veedu of Mangalam Desam (ii) Kunju Veedu of Ittakaveli Desam in Thiruvattar Village (iii) Tharisam Veedu of Ittakaveli Desam and (iv) Chundanvilagathu Veedu of Thumbacode in Thirunandikkara Desam; that subsequently, Pattana Kadu Veedu and Mela Veedu also got divided from Ittakaaveli Desam, resulting in the birth of a total of 6 branches, with each branch having more than 100 members at present; that in the Partition Deeds of different branches, there was provision for the administration of the temple, leading to conflicts; that the representatives of all the branches never met and took a decision; that no particular branch has any special right, since all the 6 branches have equal rights; that though the plaint temple was originally a private temple, it was so only till the original Tarwad existed; that after the original Tarwad was divided, the temple was neglected, resulting in the Hindus of Mangalam Desam taking up the administration of the temple in the year 1950, with the active participation of the members of all the 6 branches; that ever since that time, the temple came to be known as "Mangalam Sree Badrakali Temple"; that from that time onwards, the administration of the temple was with a Committee elected every year; that the said Committee is managing the affairs of the temple and conducting festivals including Pongal Mahotsavam; that the temple was improved by the contribution made by the public; that a hundi was established near the temple; that the monthly collection comes to Rs.2,000/-; that a tower was built installing a temple bell; that during Pongal Mahotsavam, the deity is taken in procession throughout the village, with the public participating in the procession; that the public not merely worshipped at the temple, but actually attended functions as a matter of right, since the temple happened to be a public temple; that the participation of the public in the administration of the affairs of the temple was as a matter of right and that therefore the suit had to be dismissed. 10. The following issues were framed for consideration by the Trial Court:- (i) Whether the suit temple was a public temple or a private temple (ii) Whether the temple was being administered by trustees appointed for the purpose (iii) Whether the temple was being administered by the villagers of Mangalam Desam (iv) Whether the plaintiffs were entitled to declaration and permanent injunction (v) To what reliefs the plaintiffs are entitled 11. As stated earlier, apart from O.S.No.121 of 1994, two more suits came to be filed on the file of the same Court. One was in O.S.No.324 of 1996. It was filed by one Muralidharan Nair, who also claimed to be a hereditary trustee, hailing from one particular branch of the Tarwad. His case was also almost identical to the case of the plaintiffs in O.S.No.121 of 1994. Actually, the defendants 3, 5 and 7 in O.S.No.121 of 1994 were made the defendants in O.S.No.324 of 1996 and the prayer in O.S.No.324 of 1996 was similar to the prayer in O.S.No.121 of 1994. 12. The third suit O.S.No.145 of 1998, was filed by one P.Gopalakrishnan Nair (D-3 in O.S.No.121 of 1994) and T.Harinarayan Nair, against the plaintiffs in O.S.No.121 of 1994. The prayer in the third suit was for a permanent injunction. 13. Thus in essence, two suits were by the members of different branches of the Tarwad making a claim that the suit temple was a private temple. The third suit was by the members of the public claiming the temple to be a public temple. Therefore, all the 3 suits were taken up together and evidence was let in common in O.S.No.121 of 1994. 14. One Mr.Rajasekaran, claiming to be the nephew of Madhavan Pillai (3rd plaintiff in O.S.No.121 of 1994) was the only witness examined on the side of the members of the families of the Tarwad. He filed as many as 42 documents as Exx.A-1 to A-42. The 7th defendant in O.S.No.121 of 1994 by name Sadasivam Nair was examined as DW-1. The plaintiff in O.S.No.324 of 1996 by name Muralidharan was examined as DW-2 and he filed 51 documents which were marked as Exx.B-3 to B53. The second plaintiff in O.S.No.121 of 1994 by name Damodharan Pillai was examined as DW-3. Interestingly, he was examined by summoning him through Court, despite his being a party to the proceeding. The first defendant in O.S.No.121 of 1994 by name Manikandan Nair was examined as DW-4 and he filed about 42 documents which were marked as Exx.B-54 to B-95. The 23rd defendant in O.S.No.121 of 1994 by name Ramakrishnan was examined as DW-5. A third party by name Raghavan Achari was examined as DW-6. A total of 97 documents were marked on the side of the defendants. 15. The report filed by the Court appointed Commissioner was filed as Ex.C-1. The photographs taken by him were filed as Exx.C-2 and C-3. 16. On the basis of the Partition Deed dated 31.11.1101 M.E., and its translated copy, filed as Exx.A-6 and A-7 and on the basis of the Partition Deed dated 5.3.1106 M.E., and its translated copy, filed as Exx.A-8 and A-9, the Trial Court came to the conclusion that the management and administration of the temple was vested with the eldest male member (known as "Karanavar") of one branch of the Tarwad. On the basis of the Partition Deeds of the years 1089 ME and 1104 ME and their translated copies filed as Exx.B-1 to B-4, the Trial Court came to the conclusion that the other branch of the Tarwad was also vested with similar rights. 17. After having so found the origin of the temple to be in private domain, the Trial Court recorded a finding that there was no iota of evidence to come to the conclusion that the administration of the temple was handed over to the public of the village in the year 1950. The evidence of DW-4 to the effect that the public of the village took over the administration in 1950 and that festivals were conducted from out of the donations collected from the public etc., were simply rejected by the Trial Court on the ground that he was only 53 years old and that therefore, in 1950, he would have been just 3 years old and that therefore, would not be competent to speak to these facts. 18. But at the same time, the Trial Court also found from the report filed by the Advocate Commissioner marked as Ex.C-1, that all features to hold the temple to be in use as a public temple are present. From the evidence of DW-3 (second plaintiff in O.S.No.121 of 1994), the Court also came to the conclusion that the administration of the temple was not in his hands and that there was no evidence to come to the conclusion that the members of the families of both the branches were administering the temple and performing poojas. The Court also rejected the claim of the plaintiff in O.S.No.324 of 1996 that he derived the rights of administration from Damodharan Nair. 19. After having recorded the above findings, the Trial Court came to the conclusion that it had no jurisdiction to decide the question whether the temple is a public or a private temple and that only the competent authority of the Hindu Religious and Endowment Department had jurisdiction to decide the issue. Accordingly, the Trial Court dismissed all the suits, on the ground of jurisdiction, despite holding that both the plaintiffs as well as the defendants failed to prove their respective claims and despite holding that the temple had all the features of a public temple. 20. As stated already, as against the common judgment delivered in 3 suits, only 2 appeals were filed. A.S.No.85 of 2001 was against the judgment in O.S.No.121 of 1994 and A.S.No.123 of 2001 was against the judgment in O.S.No.324 of 1996. Both these appeals were taken up together by the Sub Court, Padmanabhapuram. In both the appeals, the Appellate Court simplified the issue arising for consideration, into the question as to whether the appeals deserved to be allowed or not. 21. The Appellate Court also rejected the contention that the plaintiffs were managing and administering the temple as eldest male members of the branches of the Tarwad. At the same time, the Appellate Court accepted the findings of the Trial Court that the temple was a private temple in its origin and that there was no evidence to show that the public took over the administration from the year 1950. However, on the basis of the public notices issued in relation to the temple festivals, filed as Exx.B-54 to B-66 and on the basis of the receipts filed as Exx.B-67 to B-89, the Appellate Court also came to the conclusion that the temple had all the features of a public temple. Nevertheless, the Appellate Court also confirmed the findings of the Trial Court that the question whether the temple was a public or a private temple, could be decided only by the Hindu Religious and Charitable Endowments Department. Consequently, the Appellate Court dismissed both the appeals and hence the 4th plaintiff and 7th defendant in O.S.No.121 of 1994 alone have come up with the above Second Appeal, challenging the dismissal of the suit O.S.No.121 of 1994 by both the Courts below. 22. The Second Appeal was admitted on 4.11.2004 and the following were framed as substantial questions of law arising for consideration:- "(i) Whether the Courts below is right in coming to the conclusion that the admitted character of the temple of private nature has been changed into public character from 1950 onwards simple because of certain gifts made by the public in favour of the temple (ii) Is the Courts below right in coming to the conclusion that the public have been administering the temple as of right especially when the plaintiffs by documentary evidences have proved that the temple administration vested with their families alone (iii) Is the lower Courts right in holding that the character of the temple changed from private one to a public one when the temple could never be changed into a public one and that without the consent of families which have inherited the private right (iv) Is the lower Court is right in coming to the conclusion that Section 108 of HR&CE Act, is a bar to the suit especially when the relief claimed could not be granted by the authorities under the and more so the authorities could not decide the change of character of the temple (v) Whether the judgment of the Lower Appellate Court is in accordance with the mandatory provisions of law under Order 41, Rule 31, CPC, and in conformity with the rulings reported in 1997 (1) LW 704 and 1996 (2) LW 574 (vi) Have not the Courts below erred in law in holding that the suit temple is a public temple in the absence of the clearest possible evidence of the alleged conversion into a public temple especially when the origin of the temple is known as a private temple as held in 1973 (2) ML 1442 (DB) (vii) Is not the suit relating to the substantial dispute between the parties as to which of them are the persons entitled to be in management of the temple maintainable notwithstanding the bar under Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (viii) Whether the hereditary nature of the Trust could by a subsequent act can be changed and is antithesis to hereditary succession " 23. Though the above 8 questions were framed at the time of admission of the second appeal, as questions of law arising for consideration, Mr.D.Rajagopal, learned counsel for the appellants conceded that if cut into precision, there are only 3 substantial questions of law that actually arise for consideration. They are:- (i) Whether the Courts below were right in thinking that the Civil Court had no jurisdiction to decide the issue, in view of the bar under Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (ii) Whether the Courts below were right in coming to the conclusion that the temple is a public temple, after having clearly found its origin to be a private temple and after having found that there was no evidence to show that the public took over the administration of the temple after the year 1950 (iii) Whether the manner in which the lower Appellate Court decided the appeals, was in accordance with the provisions of Order 41, Rule 31, CPC BAR OF SUIT: 24. Let me now take up the first question as to whether the civil suit was barred in view of Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. 25. Section 108 of the Act, bars the jurisdiction of Civil Courts. It reads as follows:- "108. Bar of suits in respect of administration or management of religious institutions, etc. - 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." 26. A reading of the above provision shows that a suit or other legal proceeding, in respect of the administration or management of a religious institution or any other matter or dispute for which provision is made under the, is barred. Therefore, we have see (i) whether the dispute on hand is one relating to the administration or management of a religious institution or (ii) whether the dispute on hand is one for the determination of which, a provision is made under the. 27. Section 6(18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 defines a " religious institution to mean a math, temple or specific endowment". Sub Section (20) of Section 6 defines a temple as follows:- "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 Community or of any section thereof, as a place of public religious worship; Explanation. - Where a temple situated outside the State has properties situated within the State, control shall be exercised over the temple in accordance with the provisions of this Act, in so far as the properties of the temple situated within the State are concerned." 28. Therefore, to invoke the bar under Section 108 of the Act, the institution whose right of administration or management is in question, should be a religious institution within the meaning of Section 6(18) and/or a temple within the meaning of Section 6 (20). We are not concerned here, with the other religious institutions such as math or specific endowment. Since the definition of the expression "temple" under Section 6(20), means only a place of public religious worship, a private temple may not come within its purview. 29. But as pointed out earlier, Section 108 has two limbs. The first relates to the administration or management of a religious institution. The second relates to any other mater or dispute, for the determination of which, a provision is made in the. The first limb is not attracted in this case since the very question that arises for consideration is whether the temple is a public or a private one and whether it will fall within the definition of the expression "temple" under Section 6(20). 30. In so far as the second limb is concerned, we have to see the other provisions of the, to find out if any provision is made under the, for the determination of any other matter or dispute. Section 63 of the Act, empowers the Joint Commissioner/Deputy Commissioner to decide certain disputes and matters. They are as follows:- "(a) whether an institution is a religious institution; (b) whether a trustee holds or held office as a hereditary trustee; (c) whether any property or money is a religious endowment; (d) whether any property or money is a specific endowment; (e) whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what the established usage of a religious institution is in regard to any other matter; (f) whether any institution or endowment is wholly or partly of a religious or secular character; and whether any property or money has been given wholly or partly for religious or secular uses; and (g) where any property or money has been given for the support of an institution which is partly of a religious and partly of a secular character, or the performance of any service or charity connected with such an institution or the performance of a charity which is partly of a religious and partly of a secular character or where any property or money given is appropriated partly to religious and partly to secular uses, as to what portion of such property or money shall be allocated to religious uses." 31. Therefore, Section 63 of the Act, empowers the Joint Commissioner or the Deputy Commissioner, to inquire into and decide the dispute whether an institution is a religious institution. In other words, he is empowered to decide whether an institution is a math or temple or specific endowment, so as to fall within the definition of the expression "religious institution" under Section 6(18). Consequently, he is entitled to decide whether it is a temple within the meaning of Section 6(20). 32. Therefore, it appears, prima facie, that the question taken up by both the Courts below, as to whether it is a public or a private temple, is a question which could be decided by the Joint/Deputy Commissioner under Section 63(a) of the. Once it is found that the Joint/Deputy Commissioner is empowered to decide the question whether a temple is a private or public temple, then the second limb of Section 108 gets attracted. In other words, a provision is made under Section 63 (a) of the Act, for deciding the question whether a temple is a public or a private temple. Consequently, the bar under Section 108 appears to get attracted. 33. But curiously in this case, the learned counsel appearing on both sides contended that the bar under Section 108 is not attracted and that there is no complete exclusion of jurisdiction of the Civil Court. In support of his contention that the jurisdiction of the Civil Court is not ousted, Mr.D.Rajagopal, learned counsel for the appellants relied upon the following decisions:- (i) Dhulabhai etc., vs. State of Madhya Pradesh {AIR 1969 SC 78 [LQ/SC/1968/102] } (ii) Ponniah Nadar vs. Chellian Nadar {1970 (II) MLJ 526} (iii) S.Rangayya Goundar vs. Karuppa Naicker {1971 (I) MLJ 358} (iv) Thiruvengada Varadachariar alias R.Varadachari vs. Srinivasa Iyengar {1973 (I) MLJ 266} (v) Sri Vallaba Ganesar Devasthanam vs. A.Anandavadivelu Mudaliar {1980 (I) MLJ 140} 34. In Dhulabhai, a Constitution Bench of the Supreme Court, considered the question of bar of jurisdiction of Civil Courts, with reference to various statutes and laid down certain principles in para-35 of its decision. The relevant portion of para-35 reads as follows:- "35. ....The result of this inquiry into the diverse views expressed in this Court may be stated as follows:- (1) Where the statute gives a finality to the orders of the special Tribunals the Civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been compiled with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. ................ ................ (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply." 35. In Ponniah Nadar, this Court was concerned with a case arising out of a suit for a declaration that a temple known as "Badrakaliamman Temple" and its properties constituted a public trust and for the recovery of the properties from the defendants. When a question as to the bar of jurisdiction of the Civil Court was raised in view of Sections 63 and 108 of the Act, K.S.Venkataraman, J., following the opinion expressed by P.V.Rajamannar, C.J., in S.A.No.1396 of 1948, that when the dispute was only between two private parties and the Board (HR&CE) was not directly concerned, the Civil Court had jurisdiction. The reasoning given by P.V.Rajamannar, C.J., with reference to Section 84 of the Madras Hindu Religious Endowments Act (II of 1927) was adopted by K.S.Venkataraman, J., for an interpretation to Section 108 of the present Act and was held that the bar would operate only when the Board itself was interested in deciding the question. 36. In S.Rangayya Gounder, G.Ramanujam, J., held that when the substantial dispute between the parties is as to which of them are the persons entitled to be in management and when the dispute centres around the question as to which of the rival claimants are entitled to celebrate the annual festival, it would not fall within the ambit of Section 63 and hence the bar under Section 108 would not apply. 37. However, in Thiruvengada Varadachariar, a Division Bench of this Court, considered the views earlier expressed by P.V.Rajamannar, C.J., and K.S.Venkataraman, J., in the aforementioned cases and disagreed with the views expressed in Ponniah Nadar. Then it was held in para 8 as follows:- "8. With great respect to the learned Judge, we are unable to agree with the above view. As already pointed out, the question as to whether a particular institution was a public temple or not did not directly arise for consideration before the learned Chief Justice. It was only incidental to the other disputes arising in a suit for redemption. That was obviously the reason for the Bench, in the very first sentence of its judgment, to agree with the learned Chief Justice holding that the Civil Court has jurisdiction to decide whether a particular institution is a public temple or not when such a question arises incidentally to the other disputes. The Bench has not made any reference to the casual observation of the learned Chief Justice that the bar would operate only in a case where the dispute is between the trustees of the institution on the one hand and the Board on the other. Neither the language of Section 84 of the 1927 Act nor the language in the two corresponding Sections of the 1951 Act and the 1959 Act warrants such an inference. Whatever be the policy underlying the 1927 Act, it is clear from the scheme of things adumbrated in the 1951 Act and the 1959 Act, that the Legislature has conferred exclusive jurisdiction upon the Deputy Commissioner to decide the disputes and matters enumerated in the relevant sections. We have already extracted Section 63 of the 1959 Act and it would be seen therefrom that there are some matters in which the Board may not be interested. For instance, the Board may not be interested whether a particular person is entitled by custom or otherwise to any honour. The privilege as to who is entitled to an honour would arise only if rival claims are put forward by two private individuals. It is true that the Deputy Commissioner cannot decide a dispute as to who among the rival claimants is entitled to succeed to an office. If a particular office of trustee is admitted to be hereditary, the question as to whether A or B is entitled to succeed is beyond the jurisdiction of the Deputy Commissioner under Section 63 of the. But where A asserts that an office is hereditary and claims appropriate relief on that basis and where B denies that the office is hereditary, but claims to have been appointed as a trustee by the Endowment Board, in our view such a case would fall squarely within the ambit of Section 63 of the 1959 Act, even though the Board is not impleaded as a party." 38. In Thiruvengada Varadachariar, the Division Bench went to the extent of holding that even though the Deputy Commissioner cannot grant the relief of possession, that would not be a ground to hold that the suit is maintainable. It was held that the form of relief cannot be the sole criterion to decide the question of maintainability of the suit. 39. In Sri Vallaba Ganesar Devasthanam, S.Padmanabhan, J., took note of the decisions of P.V.Rajamannar, C.J., K.S.Venkataraman, J., as well as the decision of the Division Bench in Thiruvengada Varadachariar and held in para 12 of his decision that "if in a suit any matter in respect of which a provision is made under the had to be incidentally decided, the jurisdiction of the Civil Court will not be excluded". In other words, the learned Judge held that if any other question in respect of which the power is conferred on the Deputy Commissioner to decide under Section 63 of the Act, arises incidentally for consideration in a suit, the jurisdiction of the Civil Court will not be excluded and that notwithstanding Section 108 of the Act, where the dispute relating to a temple is only between two private parties and the Board is not directly concerned, the Civil Court has jurisdiction to try the suit. 40. For coming to the above conclusion, S.Padmanabhan, J., not only took note of the decision of the Division Bench in Thiruvengada Varadachariar, but also took note of a subsequent Division Bench judgment in Sri Venkataramanaswamy Deity vs. Vadugammal {1974 (1) MLJ 431 [LQ/MadHC/1973/252] }. In the said decision of the latter Division Bench in Sri Venkataramanaswamy Deity, the Division Bench of Kailasam, J., and N.S.Ramaswamy, J., held that the reasoning and conclusion arrived at by the previous Division Bench in Thiruvengada Varadachariar, was not in conformity with the decision of the Supreme Court in V.L.N.S. Temple vs. I.Pattabhirami {AIR 1967 SC 781 [LQ/SC/1966/174] }. In Sri Venkataramanaswamy Deity, the latter Division Bench pointed out that "the observation of the Bench in Thiruvengada Varadachariar vs. Srinivasa Iyengar {1973 (1) MLJ 266 [LQ/MadHC/1972/277] }, that one of the main issues that arises for consideration is whether the plaintiffs and defendants 3 and 4 are hereditary trustees and for deciding that issue, express provision is made in Section 63 ofXXII of 1959 and hence the suit is barred by Section 108 of that Act is difficult to reconcile with the view expressed by the Supreme Court and this Court in the decisions referred to above". 41. Incidentally, in an earlier decision in Narayanan Chettiar vs. Commissioner, HR&CE {1978 (2) MLJ 574}, S.Padmanabhan, J., himself held that a suit was not maintainable in the facts and circumstances of that case. But it was distinguished by the learned Judge in his latter decision in Sri Vallabha Ganesar Devasthanam, by pointing out that the declaration sought for in the former case, was not incidental to the relief of injunction and hence the suit was held to be not maintainable. 42. In N.K.S.Sankarakumara Nadar vs. Assistant Commissioner, HR&CE {1975 (1) MLJ 12 [LQ/MadHC/1974/241] }, a Division Bench of K.S.Venkataraman and P.R.Gokulakrishnan, J.J., held that a suit for a declaration that a particular temple is a denominational temple within Article 26 of the Constitution, would fall outside the purview of Section 63(a) and hence could be tried only by the Civil Court. 43. In Inspector/Fit Person, HR&CE, Arulmighu Sundaresa Gnaniar Koil, Dharapuram vs. Amirthammal {2003 (1) MLJ 435 [LQ/MadHC/2002/1757] }, a Division Bench of R.Jayasimha Babu and Mrs.Prabha Sridevan, J.J., referred to the two decisions of the Supreme Court in State of Madras vs. Kunnakudi Melamatam alias Annathana Matam {AIR 1965 SC 1570 [LQ/SC/1965/46] } and in Sri Vedagiri Lakshmi Narasimha Swami vs. Induru Pattabhirami Reddi {AIR 1967 SC 78}. After pointing out that there was no conflict of views between the decisions in Kunnakudi Melamatam and Sri Vedagiri Lakshmi Narasimha Swami, the Division Bench held that a suit for a declaration that the property is not a public temple, would fall under Section 63(a) and that it was not an incidental question and that therefore, the dispute should be adjudicated only by the competent authority in the first instance. 44. Therefore, the above line of decisions make it clear that if the dispute is one, for the determination of which a provision is made in the, then the jurisdiction of the Civil Court is ousted. But if such a question, for the determination of which a provision is made in the, arises only incidentally for consideration, in a civil suit, then the jurisdiction of the Civil Court is not ousted. Keeping the above principles in mind, if we now have a look at the facts leading to the Second Appeal on hand, the following picture emerges:- (a) that the suit O.S.No.121 of 1994 is between a group of persons claiming to be hereditary trustees of a private temple on the one hand and the members of the general public on the other hand; (b) that the prayer in the suit is for a declaration of the right of the plaintiffs to administer the temple and its properties described in schedules A and B to the plaint and for a consequential decree of permanent injunction; (c) that the very claim of the defendants in the suit was that from the year 1950, the Hindus of the village Mangalam Desam, took over the administration of the temple with the active participation of the members of the different branches of the Tarwad; and (d) that therefore, the main issue (also the first issue) that arose for consideration in the suit was whether the suit temple was a public temple or a private temple. 45. Therefore, it cannot be said that the question whether it is a public or a private temple arose merely incidentally to the main issues involved in the suit. The main issue that arose in the suit itself was whether it was a public or a private temple. The question whether the temple is a private or a public one, did not arise as an issue ancillary to any main issue. The case pleaded by the plaintiffs and the reliefs sought for by them, depended entirely upon the answer to the question whether it was a public or a private temple. Such a question which constituted the very life line of the case, cannot be said to be an incidental or ancillary issue. 46. As a matter of fact, the Code of Civil Procedure does not talk about main issues and ancillary or incidental issues. Order XIV speaks only about two types of issues viz., (i) issues of fact and (ii) issues of law. Order XIV, Rule 1 (1) states that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Sub Rule (2) of Rule 1 of Order XIV, makes it clear that "material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to use or a defendant must allege in order to constitute his defence". Sub Rule (3) of Rule 1 of Order XIV makes it mandatory for the Court to frame a distinct issue in respect of every material proposition affirmed by one party and denied by the other. 47. Thus the Code does not recognise the existence of main issues in contra distinction to ancillary/incidental issues, though the Code recognises (i) the existence of issues of law and issues of fact {Order XIV, Rule 1(4)} (ii) the existence of preliminary issues and other issues {Order XIV, Rule 2} and (iii) the existence of matters directly and substantially in issue {Section 11}. 48. Be that as it may, it is clear from the pleadings, the issues framed and the evidence let in, that the question whether the temple is a private temple or a public temple, was the substantial issue that arose for consideration in the present proceedings. This issue is an issue which falls within the ambit of Section 63 (a) of the. In other words, the Deputy/ Joint Commissioner is empowered under Section 63 (a) to decide whether an institution is a religious institution or not and whether the institution is a temple within the meaning of Section 6(20) or not. 49. Therefore, both the Courts below were right in concluding that the jurisdiction of the Civil Court stood ousted. It is a different matter altogether that any decision rendered by the Joint/Deputy Commissioner under Section 63 (a), is appealable to the Commissioner under Section 69 (a) and a suit can thereafter be instituted under Section 70 (1). The mere fact that ultimately the Civil Court is vested with a jurisdiction under Section 70 (1) to deal with a suit arising out of the decisions of the Deputy/Joint Commissioner and that of the Commissioner, would not take away the rigour of the bar under Section 108 of the. 50. Mr.D.Rajagopal, learned counsel for the appellants contended that in O.S.No.121 of 1994, out of which the present Second Appeal arises, no issue was framed by the Trial Court with respect to the bar of suits under Section 108 of the. Therefore, the learned counsel contended that a finding recorded by both the Courts below that the suit was barred, cannot be sustained in the absence of any issue framed for the determination of the same. 51. It is true that in O.S.No.121 of 1994, the Trial Court framed 5 issues, which I have listed in paragraph-10 above. No issue was framed on the question of bar of suit under Section 108. It is only in the third suit O.S.No.145 of 1998 that the question of maintainability of the suit was raised as an issue. 52. But I do not think that the failure of the Trial Court to frame an issue with reference to Section 108 of the Act, in O.S.No.121 of 1994, disentitled the Court from holding the suit as not maintainable. As a matter of fact, a careful consideration of the judgment of the Trial Court would show that on the issue whether the suit temple is a public temple or a private temple, the Trial Court refused to record a finding (in para-23), on the ground that it had no jurisdiction to decide that issue, in view of the bar under Section 108. In other words, instead of framing an issue relating to the bar of suit under Section 108 and recording a finding thereon, the Court took up the issue whether the suit temple is a public temple or a private temple and refused to record a finding thereon on the ground that there is a bar of jurisdiction. The refusal to answer the substantial issue, on the ground of lack of jurisdiction, cannot really be said to be contrary to law merely because the question of jurisdiction was not raised as an issue. 53. Therefore, I reject the contention of the learned counsel for the appellants that the finding of the Courts below relating to jurisdiction, cannot be sustained in the absence of an issue being framed. In fine, I answer the first substantial question of law against the appellants and hold that the suit was barred in view of Section 63 (a) read with Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. PUBLIC OR PRIVATE TEMPLE: 54. After finding that they had no jurisdiction in view of the bar under Section 108, both the Courts below also went into the question whether the temple in question was a public temple or a private temple. Both the Courts below found (i) that though the origin of the temple was in private domain, there was no evidence to show that the plaintiffs in O.S.No.121 of 1994 and O.S.No.324 of 1996, were in management and administration of the temple on the date of the suit; (ii) that there was also no evidence to establish that the public took over the administration of the temple from 1950 onwards; and (iii) that however, the public notices issued for the festivals of the temple and the receipts issued for the donations collected, established that the members of the public had a right in the management and administration of the temple. 55. Though in the light of the overwhelming evidence on record, these findings of both the Courts below cannot be assailed, I think that the Courts below could not have gone into these details, after having recorded a finding that there was a bar under Section 108. Towards the end of paragraph-23 of its judgment, the Trial Court held that it had no jurisdiction to decide the question whether the suit temple was a public temple or a private temple. In paragraph-28 of its judgment, the Appellate Court affirmed the said finding of the Trial Court. 56. Therefore, once the Courts below came to the conclusion that the issue arising for consideration fell within the jurisdiction of the Deputy/Joint Commissioner under Section 63 (a), it was not open to the Courts to adjudicate on the issue whether the suit temple is a public or a private temple. The findings recorded on such issues, will be of no consequence, as they were rendered by Courts which claimed to have no jurisdiction to decide them. 57. Therefore, I hold on the second substantial question of law that the findings of both the Courts below on the question whether the temple is a public or a private temple, are of no consequence, in view of their other finding that there was a bar of jurisdiction. ORDER XLI, RULE 31, CPC: 58. The third question of law raised in the Second Appeal is as to whether the judgment of the lower Appellate Court is in conformity with the provisions of Order XLI, Rule 31, CPC. 59. Order XLI, Rule 31, CPC requires the judgment of the Appellate Court to state (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Unfortunately, in the case on hand, the only point for determination framed by the Appellate Court was whether the appeal deserved to be allowed or not. Therefore, there is no doubt that there was a failure on the part of the Appellate Court to frame appropriate points for determination. 60. But I do not think that the same would entitle the appellants to have the judgment and decree of the Appellate Court set aside and the matter remanded back to the Appellate Court. On the question relating to the bar under Section 108, the Appellate Court has confirmed the decision of the Trial Court and held that it had no jurisdiction to decide the question whether the suit temple was a public temple or a private temple. Once this finding is upheld, all other findings on the substantial issues, become insignificant, since those findings are by a Court which thought that it had no jurisdiction. Therefore, in the case on hand, I hold that the failure of the lower Appellate Court to comply with Order XLI, Rule 31, CPC, has not vitiated to its judgment. The third substantial question of law is answered accordingly. CONTEMPT PETITION: 61. Coming to the Contempt Petition, it arises out of an interim order passed by this Court in CMP No.1526 of 2004 dated 4.11.2004, which reads as follows:- "It is represented by the counsel on record for the respondents that already the temple building has been demolished and so, the following order is passed. If, it is not already demolished, the respondent should not do any act in continuing further demolition or otherwise. Notice." 62. According to the appellants, the respondents 1, 15, 21 and 24 in the Second Appeal, along with one Gopinathan Nair and Radhakrishnan Thampi violated the interim orders by demolishing the temple-building and destroying the coconut trees worth about Rs.10,000/-, standing in the suit property. The appellants claim that a complaint was lodged with the Superintendent of Police, on 10.12.2004. 63. To show that the temple-building was demolished and the coconut trees were cut, in violation of the interim order, the petitioners in the contempt petition have not filed any material except the copy of the complaint given to the Superintendent of Police. Moreover, the very interim order of injunction granted by this Court, was not an absolute order of injunction, but a qualified order. The statement made by the counsel for the respondents that the temple-building had already been demolished, has also been recorded in the interim order passed on 4.11.2004. The injunction granted by this Court was qualified with a preface that it was granted only if the temple-building had not already been demolished. 64. With such a thin line of attack, a contempt can never be made out by the appellants. There is no finding recorded by this Court as to what was the status of the temple-building on 4.11.2004 when the interim order was passed. This Court has gone to the extent of recording the statement of the respondents that the temple-building had already been demolished. Therefore, no contempt is made out and hence the Contempt Petition is dismissed. WRIT PETITION: 65. The writ petition has been filed by P.Sadasivan Nair, son of Parameswaran Pillai, claiming to be the present trustee and eldest male member of Kizhakku Veedu, challenging the registration of a Deed of Trust dated 21.6.2004, under the name and style of "Mangalam Sri Badrakaliamman Koil", by a group of villagers. The only ground on which the challenge is made to the registration of the trust is that the subject matter of the trust was the subject matter of the civil proceedings, pending in Second Appeal on the file of this Court. 66. But I do not think that the prayer in the writ petition can be granted. Three persons who are cited as respondents-4 to 6 in the writ petition, have executed the Deed of Trust dated 21.6.2004, for the purpose of regulating the management and administration of the temple in question. The fundamental right of persons to form themselves into an association and register the same, cannot be questioned by the writ petitioner. If at all, the writ petitioner has a right only to prevent the Trust so created, from interfering with the administration and affairs of the temple. The mere creation of a Trust by a few individuals, would not per se amount to an interference with the administration and management of the temple. 67. Suppose the petitioner initiates proceedings before the Joint/ Deputy Commissioner under Section 63 (a) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and succeeds in getting a finding that the temple in question is a private temple, the Trust created by the respondents 4 to 6 in the writ petition, would actually fail. If on the other hand, the competent authority holds that it is a public temple, it may be possible for the competent authority to constitute a Board of Trustees. Even then, the Trust registered by the respondents 3 to 6 may not serve the ultimate purpose. Therefore, the challenge to the registration of the Trust has to fail, especially in view of the dismissal of the Second Appeal. Accordingly, the writ petition is dismissed. There will be no order as to costs. 68. In the result, the Second Appeal, Contempt Petition and the Writ Petition are dismissed. There will be no order as to costs.