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Judgment
Venkataramana Rao, J.—This second appeal arises out of a suit to recover possession of the plaint Siva temple called, Vatakketath by
plaintiffs who constitute the board of trustees of the Tiruvangad devaswom appointed by the decree in O.S. No 8 of 1925 on the file of the District
Court of North Malabar. The basis of the claim is that this Siva temple is a shrine subordinate to the Sri Rama temple of the devaswom and situate
in the same compound but the defendants who are the archakas of the Siva temple have set up a hostile title thereto alleging that they own it. The
main defence is that the plaint temple does not belong to the Tiruvangad devaswom and it is not a sub-ordinate shrine as alleged in the plaint. The
defendants further pleaded that the plaint temple belongs to their illom in jenm right and their illom has been in exclusive possession of the plaint
temple to the knowledge of and against the trustees of the Tiruvangad devaswom. They also pleaded that the suit was barred by limitation and
adverse possession. Two main questions to which both the lower Courts addressed themselves were the following : (1) whether the plaint temple
belongs to the Tiruvangad devaswom or whether it belongs to the defendant''s illom; and (2) whether the suit is barred by limitation and adverse
possession. Both the Courts have concurrently found that the plaint temple belongs to the Tiruvangad devaswom and is not the private property of
the defendants'' illom, but in regard to the question of adverse possession the lower Courts differed. The learned Subordinate Judge was of the
opinion that the right of the Tiruvangad devaswom to the plaint temple was barred by adverse possession while the learned District Judge held it
was not and he therefore gave a decree for possession in favour of the plaintiffs.
Mr. Kuttikrishna Menon on behalf of the defendants-appellants contends that the view taken by the learned District Judge in regard to the
adverse possession was wrong, that even assuming the right of the Tiruvangad devaswom was not barred by adverse possession, the plaintiffs can
have no right to oust the defendants from their possession of the suit temple on the ground that they have acquired a right to the exclusive
management of the suit temple by prescription and that the suit is liable to be dismissed even on the findings of both the Courts. The concurrent
finding of both the Courts is that the plaint temple is a subordinate temple of the Tiruvangad devaswom. Tiruvangad temple is admittedly a public
temple and there can be no doubt that the plaint temple in also a public temple. In deciding the question of adverse possession it seems to me that
both the Courts have not kept in view this fact. Being a public temple and therefore res extra commercium it is not open to a private individual to
acquire by prescription any private ownership in regard thereto. The character of the temple as a public temple cannot be taken away by any
assertion of private right and there is no evidence that the public have ever been excluded therefrom. Mr. Kuttikriahna Menon rightly concedes
before me that he would not dispute the fact of the temple ''being a public temple. The plaint temple must therefore be deemed to be a public
temple and a subordinate shrine to the main Tiruvangad temple. But the question still remains, are the plaintiffs entitled to oust the defendants from
their possession of the suit temple? The concurrent finding of both the Courts in regard to the possession is that an ancestor of the defendants was
introduced into this temple as an archaka and that after his death, his descendants continued to be in possession doing archaka service. Both the
Courts have also found that the defendants have set up an exclusive right to the possession and management of the temple at any rate from 1903.
None of the trustees of the temple ever sought to interfere with the management or possession of the defendants'' family. The learned District Judge
observes thus:
It does not also appear that the trustees of the devasthanam attempted at any time to exercise any acts of control in the plaint temple...
It is in evidence that the defendants'' family have been always performing puja and appropriating all perquisites and offerings received at the
temple and were generally attending to the management of the temple and at no time the trustees ever interfered with such management or claimed
to receive any portion of the perquisites or offerings, even after the open assertion by the defendants of their absolute rights. It is also in evidence
that such repairs as were needed have been done by the defendants in assertion of their absolute rights. It may be that the omission of the trustees
of the Tiruvangad devaswom to interfere with such control may have been due to long continued mismanagement of the trustees of the main temple
which necessitated the framing of a scheme by the Court. But if the defendants have been openly setting up exclusive right to the possession and
management of the temple adverse to the right of the management which may inhere in the trustees of the main temple by virtue of the fact that the
suit temple was a subordinate shrine, the right of the trustees of the temple would certainly be lost by adverse possession. Probably the absence of
such control is due to the fact that the usage is that the archaka should be in such possession and management subject to general supervision the
trustees of the main temple may have over them. The terms under which the defendants'' ancestor was introduced into the temple are not known.
On the findings of both the Courts, there can be no doubt that the defendants'' family at any rate for a period of 30 years has been setting up a right
of exclusive possession and management to the knowledge of the trustees. Therefore, the facts I of this case warrant the inference that the
defendants have acquired the right of being hereditary archakas of the suit temple and as such to be in possession and management of it. They are
therefore entitled to be in possession of the said temple, to perform the puja and appropriate the perquisites and offerings offered at the temple for
their own use subject of course to the obligation of performing the puja. The plaintiffs-trustees have no right to interfere with the said management
except to exercise a general supervision over them as trustees of the main temple. The plaintiffs would not therefore be entitled to a decree for
possession. In my opinion the defendants are the hereditary archakas of the suit temple subject to the supervision of the trustees of the main temple
as mentioned by me aforesaid.
In the view I have taken that the defendants are the hereditary archakas of the suit temple subject to the supervision of the trustees of the main
temple as mentioned by me as aforesaid, the decree of the lower Appellate Court negativing their right must be reversed and the decree of the
subordinate Judge dismissing the suit must be upheld on the basis that the defendants are entitled to be in possession as hereditary archakas. The
result is that the plaintiffs'' suit will be dismissed, but I direct each party to bear their own costs throughout. Leave to appeal is refused.
Some doubt was raised by the office with regard to the refund of court-fee in this case. I issued notice to the Government Pleader. Mr. Krishna
Rao on behalf of the Government Pleader frankly stated to me that refund should be ordered and I think he is right. Apart from Sections 13, 14
and 15, Court-fees Act, the Court has got inherent power to refund court-fee: vide Thammayya Naidu v. Venkataramanamma AIR (1932) Mad.
438 As the temple in this case is incapable of valuation I think the appellants are entitled to a refund of the excess court-fee paid by them. The
proper court-fee in this case is Rs. 100. The appellants are therefore entitled to a certificate for the refund of the balance. Mr. Govinda Menon
asks me to make an order also in his client''s favour. I cannot do so in this appeal. If so advised, he is entitled to make an application to the lower
Court.