Madras High Court
The Idol Of A/M.Sri Kalyana ... vs M.Palanivel on 19 June, 2023
2023/MHC/2725
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S(MD)NO.118 of 2020
The Idol of A/m.Sri Kalyana Venkataramanaswamy,
Thanthonimalai,
represented by its Executive Officer/The Assistant
Commissioner,
Thanthonimalai,
Karur Taluk and District. :Appellant/Plaintiff
.vs.
1.M.Palanivel
2.P.Kannadasan
3.M.Manju
4.S.Kayalvizhi
5.S.Vijayalakshmi
6.S.Muruganandham
7.J.Saravanan(died)
8.V.Subramani
9.P.Ravi
10.G.Prabavathi
11.P.Subramani
12.V.Sakthivel
13.Minor Sarabeshwaran
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2
(minor 13th appellant represented by his mother and natural
guardian, the fourth respondent herein Kayalvizhi)
14.Manoranjitham
(4th respondent who is already on record, is recorded as LR of the
deceased 7th respondent and respondents 13 and 14 are brought on
record as Lrs of the deceased 7th respondent as per order of this
Court made in C.M.P.(MD)No.2369 and 2371 of 2022 in
A.S(MD)No.118 of 2020, dated 22.3.2022)
:Respondents 1 to 14/Respondents 1 to 14
PRAYER: Appeal Suit filed under Section 96 of the Civil Procedure
Code against the judgment and decree made in O.S.No.14 of
2019(PDJ Court O.S.No.27 of 2012),, dated 29.3.2019, on the file of
Additional Sessions Judge/ Fast Track Mahila Court, Karur.
For Appellant :Mr.M.Saravanan
For Respondent-6 :Mr.M.Vallinayagam
Senior Counsel
for M/s.D.Nallathambi
For Respondent-10 :Mr.K.Suresh
For Respondents :No apperance
1 to 5 and 8 to 12
JUDGMENT
*************
Aggrieved over the dismissal of the suit filed for declaration
and for recovery of possession by the Plaintiff Temple, the present
appeal suit came to be filed.
2.The parties are referred to as per their ranking before the
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trial Court.
3.The case of the plaintiff, in brief, is as follows:
The suit properties absolutely belong to the Plaintiff temple.
The devadayam Inam was granted by Madurai Thirumalai Naicker
for the service of Thirumalaimatti permanently. The said
Devadayam Inam was confirmed on 29.4.1836 under title Deed
(TD) No.1234. Originally, patta has been granted to the plaintiff
under Section 8(2)(ii) of the Tamil Nadu Minor Inams(Abolition and
Conversion into Ryotwari)Act, 1963 in favour of the temple, which
has been challenged by some of the parties and the matter is
remanded back regarding the portion of the patta granted to an
extent of 4.88 ½ acres out of 6.77 acres to Matcha Naicker. The
said Matcha Naicker appears to have purchased A schedule suit
properties on 6.7.1992 and on 13.2.1968 from Vellaiyappan
Gounder and Katha Naicker respectively. The defendants 3 and 4
seems to have purchased the the above said 3.38 ½ acres on
9.7.2010 from the defendants 1 and 2, who are the son and grand
sons of the deceased Matcha Naicker respectively. The fifth
defendant seems to have purchased an extent of 1 acre and 50
cents on 9.7.2010 from the defendants 1 and 2 which has been
described as 'B' schedule of property. The first defendant claims
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that his father Matcha Naicker purchased the same on 22.11.1965.
On 1.3.2011, the defendants 3 and 4 sold 'A' schedule property
measuring an extent of 3.38 ½ acres to one Muruganandham the
sixth defendant herein. On 10.3.2011, the fifth defendant sold 'B'
schedule property measuring an extent of 1.50 acres to one
Saravanan, the 7th defendant herein. During the pendency of the
suit, propeties also sold by defendants 8 and 9. It is the contention
of the temple that the temple is the absolute owner of the suit
properties. The order passed by the Settlement Officer will not
nullify the rights of the temple. Hence the Suit.
4.The written statement filed by first defendant reads as
follows:
The first defendant filed a Written Statenent stating that
after enforcement of the Tamil Nadu Minor Inams(Abolition and
Conversion into Ryotwari) Act, 1963, Inam with respect of the land
stood abolished and the land became vested with the Government
free of all encumbrances. In the proceedings before the Settlement
Tahsildar, Tiruchirappalli, a joint patta was issued in favour of
Matcha Naicker, wherein, the temple is also a party, which has
been challenged before the Court. The very Settlement proceedings
was not appealed and hence, it became final and conclusive in
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nature. From that date onwards, Matcha Naicker was in possession
of the property and after his death, his legal heirs are in possession
of the said extent and as far as the 'C' schedule property is
concerned, Matcha Naicker and his legal heirs continued in
possession, as a tenant. In respect of the remaining 4.88 ½ acres,
patta was granted in favour of Matcha Naicker and prayed for
dismissal of the suit.
5.The defendants 6 and 7, who are the contesting defendants,
filed a Written statement admitting that S.No.793 as a whole is a
minor inam land granted to the plaintiff temple for providing the
service of making garlands to the deities Thirumalaikatti. The
service holders belong to the Konar community were in possession
and enjoyment of the said land rendering the designated service to
the temple. During 6.4.1892, one of the service holder Vadamalai
Konar, son of Seeranga Konar sold the entire exent comprised in
S.No.793 in favour of Nallamma Naicker @ Poosari Naicker and
Bomma Naicker @ Poosari Naicker. After a spate of transactions
relating to the said land, during the years 1962, 1965 and 1968,
Matcha Naicker, son of Muthu Naicker purchased an extent of
4.887 1/2 acres and he was in possession and enjoyment of the
same. Though the said sale transactions cannot be deemed to
vest absolute right with respect to the said properties, the said
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Matcha Naicker by virtue of the above stated sale, was in
possession and enjoyment of 4.88 ½ acres within specific four
boundaries in S.No.793. In the settlement proceedings, by order
dated 18.3.1971, the Settlement Officer held that Matcha Naicker,
son of Mutu Naicker was entitled to patta for 4.88 ½ acres of land
in S.No.793 and in respect of the remaining land patta was
granted to the temple. As against the order of the Settlement
Officer, no appeal was filed and hence, it reached its finality. In
respect of the other extent of land, Matcha Naicker become a
tenant under the plaintiff temple and thereafter, his legal heirs
continue as a tenant. According to the defendants, as far as the ' A'
and 'B' schedlue of property, the plaintiff ought to have initiated
proceedings within the period of limitation. The suit filed by the
plaintiff after a lapse of 40 years from the date of passing of the
order by the Settlement Officer is barred by Limitation. The
defendants 6 and 7 challenged the land acquisition proceedings in
W.P.Nos.4364 and 4365 of 2011, on the file of this Court and the
notification issued under the land acquisition also stands quashed.
Hence, it is his contention that as the Government through
Settlement Officer has decided the issue relating to the vesting of
the suit property and the same has attained its fianility, the suit
filed by the plaintiff without impleading the Government is not
maintainable. Hence prayed for dismissal of the suit.
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6.The defendants 3 to 5 adopted the written statement filed
by the defendants 6 and 7.
7.The averments in the additional written statement filed by
the defendnats 6 and 7 is as follows:
It is the stand of the defendants 6 and 7 that only service
holder was having the right of melvaram and kudivaram. In case of
non-drop of of service holder, the temple has no independent
right and the Government is the only competent authority.
8.The defendants 8 and 9 taken a similar defense.
9.Based on the above pleadings, the trial Court has framed
the following issues:
1.Whether the plaintiff is entitled to the relief of declaration,
recovery of possession and mesne profits, as claimed in the plaint?
2.Whether the suit is barred by the principle of constructive
resjudicata as alleged?
3.Whether the suit not maintainabhle in view of the provision
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of Tamil Nadu Public Trusts(Regulation of Administration of
Agricultural land)Act,1961, as alleged?
4.Whether the suit is barred by limitation, as alleged?
5.Whether the valuation and Court fees paid are correct?
6.To what relief, if any, the plaintiff is entitled to?
10.The following additional issues were framed on
29.3.2019,which reads as follows:
1.Whether the suit filed by the Executive Officer of the
temple is maintainable?
2.Whether the suit A and B schedule properties are the joint
family property of Macha Naicker and his brother Vaiyappan as
contended by the 12th defendant?
11.Before the Trial Court, on the side of the plaintiff, P.W.1 to
P.W.3 were examined and Ex.A1 to Ex.A6 were marked. On the side
of the defendants, D.W.1 to D.W.3 were examined and Ex.B1 to
Ex.B30 were marked.
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12.On the basis of the evidence and the materials available
before it, the trial Court had dismissed the suit in respect of 'A' and
'B' schedule of properties and decreed the suit in respect of 'C'
schedule of property. The dismissal of the suit was mainly on the
ground that the suit filed by the Executive Officer is not
maintainable. It is only a personal grant and not a service grant
and that patta has also been issued in favour of Matcha Naicker by
the Settlement Tahsildar as early as in the year 1971. That apart,
the suit is barred by limitation. On the above findings, the suit has
been partly allowed in respect of some properties and dismissed in
respect of some properties by the trial Court. Challenging the
same, the present appeal suit came to be filed by the appellant.
13.The learned counsel for the appellant would submit that
mere pleadinghs of the defendants itself clearly indicate that the
originally the property was dedicated to the temple for doing
service. Therefore, even assuming that it is only a service inam,
service holder has no right to alienate the said property.
According to him, the Executive Officer has every power to
institute a suit for recovery of the temple property. Idol being
minor, anyone interested to protect the temple property can
maintain a suit, otherwise, it is his contention that Section 34(B) of
the Tamil Nadu Hindu Religious and Charitable Endowments Act
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gives authority to the Executive Officer to take possession of the
property from the encroachers. Hence it is his contention that the
Division Bench Judgment relied on by the trial Court cannot be
applied in this regard. As far as the ownership and title of the
property is concerned, the defendants themselves have admitted in
the written statement as to the ownership of the temple.
Therefore, the patta issued under Act 30 of 1963, will not take
away the right of the Civil Court. Still the Civil Court can decide
the validity of the title and the suit filed for recovery of possession
is very well maintainable. As far as the limitation is concerned, it is
the stand that the property is a temple property and Section 109 of
the Act makes it clear that no Limitation Act is applicable.
Therefore the contention that earlier Limitation Act will apply,
cannot be countenanced. Further, it is his contention that the
absolute right not vested with any persons who is in occupation as
service holder and will continue only as a service holder and the
same cannot be vested with him. Further, it is the contention that
admittedly, the scheme has already been framed under the old Act.
After the introduction of the new Act, all the schemes in existence
also got ratified. Hence it is his contention that the trial Court has
not considered the legal position and simply partly allowed and
also dismissed the suit in respect of some of the suit properties.
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14.The following decisions were relied on by the appellant as
follows:
1.Judgment of this Court in 1998(1)CTC 630(FB)
in the case of Srinivasan and six others /vs/ Sri
Madhyarjuneswaraswami, Pattaviathalai,Tiruchy
represented by its Executive Officer at Pettavaithalai
Devasthanam and five others.
2.Judgment of the Honourable Apex Court
reported in 2023 SCC Online Mad 880 = (2023) 1 LW
85 in the case of S.M.Devi and another .vs. Lord of Sri
Jambukeswarar Akilandeswari Devasthamam,
represented by its Executive Officer.
3.Judgment of the Honourable Apex Court
repoted in 2011 SCC Online Mad 475 = (2013) 2
MWN (Civil) 801(DB) in the case of Thomas
Educational and Charitable Trust, Chennai .vs.
Arulmighu Ekambaranathar Thirukkoil,
Kancheepuram District.
4.Judgment of the Learned Single Judge of this
Court in A.S.No.397 of 2010, dated 14.12.2022, in the
case of Durgalakshmi Kalyanamandapam, specific
endowment to Arulmighu Siddhi Ganesar Nataraj
Perumal Durgaiamman Group Temples, represented
by K.Jeevanandam and other .vs.The idol of Arulmighu
siddhi Ganesar Nataraja Perumal Durgaiamman
Group Temples, represented by its Executive Officer
and other.
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5.Judgment of the Division Bench of this Court
made in STA.Nos.20 to 24 of 2001 and 1 to 8 and 10
to 19 of 2002 dated 3.3.2023. in the case of
Kandasamy @ Muthu Mudaliar /vs/ Sri
Ranganathaswamy (idol), represented through his
Executive Officer, Srirangam, Trichy.
15.It is the cotention of the learned counsel for the
respondents that only service inam was granted in favour of the
temple and in fact, the Inam Fair Register also support the same.
When the Act 30 of 1963 came into force, all the lands vested with
the Government and settlement proceedings were intitiated.
Originally, the Settlement Officer granted patta in favour of the
temple under Ex.B6 and thereafter, in appeal in C.M.A.No.76 of
1969 on 21.7.1970, the entire matter was remanded back to the
Settlement Officer, for fresh disposal. In the settlement
proceedings, the temple is also a party. The Setltement Officer
considering the entire evidence on record, by order, dated
18.3.1971, granted patta in respect of schedule 'A' and 'B' in
favour of Matcha Naicker and only in respect of 'C' schedule
property, patta was given in the name of the temple. Hence it is his
contention that the very temple was a party to the proceedings,
already the order had attained its finality and the present suit
filed after passage of more than 30 years, is not maintainable.
According to the learned Senior Counsel, the property has been
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sold in the year 1892 under Ex.B1 Sale. Thereafter, the same has
been dealt with under Ex.B2 one Matcha Naicker had purchased
the property under Ex.B3, Ex.B4 and Ex.B5. It is his contention
that the predecessor in title has purchased the property under Ex.
B1 in the year 1892, wherein, he was in possession of the lands for
a continuous period of 60 years immediately before the first day of
April 1960. Therefore the respondents who has also purchased the
property from the patta holder is entitled to the benefit of the
right conferred on the patta holder. It is his conention that once
patta is issued in favour of Matcha Naicker, the proceedings have
reached its finality, now the temple is estopped from claiming any
right over the suit properties.The properties are dealt with by
some other persons right from the year 1971 and the defendants 6
and 7 were contesting the suit and purchased the poperty under
ExB1 and Ex.B22 on 1.3.2011, even after the purchase they also
exercised their right and challenged the land acquisition
proceedings. The property is subject to mortgage executed by
Matcha Naicker in the year 1983 itself. Therefore it is the
contention that patta stands in the name of Matcha Naicker and
that the proceedings has also reached its finality, it is is the
specific proof as to the title. Therefore it does not mean that civil
suit can be filed at any time. Further even assuming that it is a
service inam tasdik allowance has been received by the temple.
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Such view of the matter,due to long possession, the predecessor in
title also become entitled to the property by long and continuous
possession of the property. It is his contention that the property
purchased by the predecessor in title is vested with them before
30.09.1951. Such being the possition, when the suit has been filed
at a later point of time, now the appellant cannot come and contend
that no limitation whatsoever is applicable to the temple property.
According to the learned Senior Counsel, as per the unamended
Section 109 of the Act, limitation will apply only after 30.09.1951.
Therefore when the persons have already perfected title and no
action is taken within the period of limitation, the temple cannot
maintain the suit for declaration and for recovery of possession.
Even as per the amended Section 109 of the Act, it apply only for
recovery of possession of the immovable properties, same cannot
be pressed into service for declaratory reliefs. Hence it is his
contention that the relief of declaratioon ought to have been
claimed within the period of limitaion. The other submissions of
the learned counsel that the suit filed by the Executive Officer is
not maintainable, he has not been conferred with the power by the
Commissioner as required under Section 45 of the Act. Therefore
the suit filed by the Executive Officer is not maintainable. It is his
further submission that even there was a scheme available
authorizing the Executive Officer, the said scheme has not been
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notified or renewed which has been clearly held by the trial Court.
Therefore the scheme relied on by the plaintiffs cannot be pressed
into service. The trial Court has considered the entire matter and
in fact,it disbelieved the title deed of the temple.
16 In the light of the above submission, now the point that
arose for consideration is as follows:
1.Whether the Executive Officer has no right to file the suit
for declaration and recovery of possession of the temple
properties?
2.Whether the Civil Court is debarred from going to the title
of the properties despite the fact that patta has been granted under
Act 30 of 1963?
3.Whether the suit is barred by limitation?
4.Whether the defendants have perfected title by adverse
possession ?
5.To what relief the plaintiff is entitled to?
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17.Point No.1:
As far as the contention that the Executive Officer cannot
maintain the suit, it is relevant to note that the Division Bench
judgment relied on by the trial Court as well as the learned
counsel for the respondent's concerned, in the case of Sri
Arthanareeswarar of Thiruchengode by its Executive
Officer Sri Sabapathy .vs. T.M.Muthuswamy Padayachi
reported in 2003 1 LW 386, the Division Bench has held that
the Executive Officer was not competent to file the suit, as he is not
empowered to file the suit. It is relevant to note that Condition for
appointment of Executive Officer Rules 2015 framed by the
Government of Tamil Nadu. The said rules, authorises the
Executive Officer to represent and also to file the suit for and on
behalf of the temple. The constitutional validity of the said rules
also upheld in M/s. Temple Worshippers Society, represented
by its President T.R.Ramesh .vs. Government of Tamil Nadu .
Further, the Division Bench of this Court in A.N.Kumar .vs.
Arulmighu Arunachaleswarar Devasthanam,
Thiruvannamalai, represented by its Executive
Officer(Assistant Commissioner),Thiruvannamalai and
others. While the Division Bench in the year 2011, while resolving
the issue, held that it is the duty of the Executive Officer to file the
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suit and it is useful to extract para No.32 of the said judgment
which reads as follows:
''32,............The Executive Officer, being an officer
appointed by a competent authority, is duty bound to
protect the property of the temple. Therefore, it is
incumbent on him to file a suit and prorect the right
of the temple.''
18.The Full Bench of this Court in the decision reported in
1949 2 MLJ 171 in the case of Sankarana Narayana Iyer .vs.
Poovanaatha Swami Temple, Kallipatti held that so long as
action for recovery of possession, a stranger has for the benefit of
the owner namely, idol or owner and person doing action who is in
the management of the idol or may be for the time being doing
their trustee, such action could be allowed to mainain the act on
behalf of the idol. Similarly, the Apex Court in the case reported in
1967 SC 1044 (Biswanth .vs. Shri Thakkur Radha Babuji)
held that the legal status of the idol is that of a minor when the
person represent left in lurch, the worshipper of the idol in his
official capacity can maintain the suit for possession.
''19.Section 45 of the HR and CE Act reads as follows:
45.Appointment and duties of Executive
Officers:---
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(1)Notwithstanding anything contained in this
Act, the Commissioner may appoint subject to such
conditions as may be prescribed, an executie officer
for any religious institution other than a math or a
specific endowment attached to a math.
(Explanation –In this section ''math'' shall not inclue a
temple under the controal of a math)
(2)The executie officer shall exercise such
powers and discharge such duties as may be
assigned to him by the Commissioner.
Provided that only such powers and duties as
appertain to the administration of the properties of
the religious institution referred in sub section(1)
shall be assigned to the executive officer.
(3)The Commissioner may define the powers
and duties which may be exercised and discharged
respectively by the executive officer and the trustee,
if any, of any religious institution other than a math
or a specific endowment attached to a math.
(4)The Commissioner may, for good and
sufficient cause, suspend, remove or dismiss the
executive oficer.''
20.It is relevant to note that Rule 4(b)(iii) of the Condition
for the Appointment of the Executie Officer Rules, 2015 referred to
above, the Executive Officer can sue or be sued in the name of
religious institutions in all the legal proceedings with the approval
of the competent authority. Therefore, once the Executive Officer
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has the power to administer the affairs of the temple, Rules also
specify that he can sue or be sued in the name of religious
institutions, power to institute a suit is inherent at any point of
time, as per the rules. When the Executive Officer is the
responsible Offier and it is his duty to maintain and protect the
interest of the temple, it cannot be said that for every action for
recovering the temple properties, a separate approval is required.
Such approval is inherent in view of the Rules 4(b)(iii) of the
Conditions for Appointment of Executive Officer Rules, 2015. It is
also relevant to note that subsequent to the judgment of this Court
as referred to above, there was an amendmenet in the form of 34-
A and 34-B which came into existence w.e.f 10.5.2003. Section 34-
A(2) gives absolute power to the Executive Officer in fixing the
lease of the land in respect of reliegious institutions. It is an
appealable order. 34(B)(3) is also clearly empowers the Executive
Officer to take possession of the property including buildings, if
any. When the amendment itself has brought in the statute
empowering the Executive Officer to recover possesion of the
temple properties, merely on technicalities, it cannot be said that
there is no power conferred by the Commissioner to institute a
suit,therefore the suit cannot be non-suited. Executive Officer in
the realm of affairs of the temple, duty is cast upon him to protect
the temple property and for recovery of the same. Therefore, this
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Court exercising the Parens patriae jurisdiction over the temple
properties, is of the view that the technicalities has to yield to
substantital justice. From the above discussions, this Court is of the
view that the suit filed by the Executive Officer is very well
maintainable, as also held by the learned Single Judges in the
latest judgments. It is also relevant to note that Ex.A5 is the
scheme framed under the old Act. Scheme was originally framed on
15.10.1956 for a period of five years.The trial Court has held that
there is no document to show that publication was effected in this
regard to show that the scheme was extended from time to
time.Therefore the Scheme is also not believed by the trial Court. It
is relevant to note that under Ex.B5, the Executive Officer is
specifically empowered to file a suit. It is relevant to note that
Section 118(b)(i) of the H.R& C.E Act deals with Repeal and
savings. If any provision contained in the Scheme settled or
deemed to have been settled under the old Act and only such
scheme is repugnant to any provision contained in this Act or rules
made thereunder, the later provisions shall prevail and the former
provision shall to the extent of the repugnancy be void and not in
its entirety. The Executive Officer is the person appointed to
exercise the powers of the of the appointing authority of the
religious institutions, as is assigned to him or under this Act or
Rules made thereafter or by any scheme settled or deemed to have
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been settled under this Act. Therefore, the Executive Officer in the
affairs of the temple, there is specific rules framed as referred to
above in the Rules 2015, wherein, he can sue or be sued in the
name of religious institutions. Therefore, it cannot be said that he
has no power to maintain the suit. Accordingly, this point is
answered.
Points 2 and 3:
21.It is relevant to note that only defendants 6 and 7 and 11
and 12 are the contesting defendants before the trial Court.
Though patta was issued under Ex.B8 in favour of one Matcha
Naicker, on a perusal of the order passed by the Settlement Officer
on 18.3.1971, the Settlement Officer admitted that the service
holders sold the properties. Therefore patta has been granted to
the subsequent purchasers. Despite the fact that the property was
endowed to the temple for doing some charities. Patta has been
mainly issued on the ground that since the service holder has sold
the properties and hence, the subsequent purchaser is entitled to
get patta. On a perusal of the entire order of the Settlement Officer,
though in one portion of the order, it is stated that the land in
respect of 'C' schedule property, patta has been granted in favour
of the temple, the fact remains that as far as 'A' and 'B' schedule of
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the suit properties, patta has been granted under Section 8 of the
Act in respect of 4.88 ½ acres in S.F.No.793 under Section 8(2)(1)
of the Tamil Nadu Minor Inams(Abolition and Conversion into
Ryotwari)Act, 1963.
22.On a careful persual of sub-clause (2)(i) of Section 8 of the
of the Act, it can be seen that for issuance of patta under Section
2(i) one may show continuous period of possession for sixty years
before the first day of April 1960 or continuous period of 12 years
immediately before the first day of April 1960.The only person who
was able to show that they were in possession for more than 60
years before the first day of April 1960, ryotwari patta can be
granted to such person.The order under Ex.A8 when carefully seen
that only on the basis of the sale made under Ex.B5, dated
13.2.1968 and Ex.B4, dated 22.11.1965, Ex.B3, dated 6.7.1962
and Ex.B2 dated 8.5.1962, Macha Naicker said to have purchased
the property. Further no document was filed before the Settlement
Officer to show that he or his predecessor in title were in
continuous possession for a continuous period of 60 years before
the first day of April 1960 or continuous period of 12 years
immediately before the first day of April 1960. Merely on the basis
of the said documents, the Settlement Officer has granted patta in
favour of Matcha Naicker. The very mandatory procedure for
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granting ryotwari patta is to find out the possession for 60 years
before the first day of April 1960 or for a continuous period of 12
years immediately before the first day of April 1960. No enquiry
whatsoever was held by the Settlement Officer in that regard.
23.Such being the position, now the question remains to be
answered is whether the Civil Court can go into the question of title
of the property in view of the order passed under Ex.B8 which has
reached its finality. In this regard, it is well settled now that the
orders passed by the authority in respect of issuance of patta will
not execlude the jurisdiction of the Civl Court. It is also held by the
Honourable Apex Court in the judgment reported in AIR 1985
SCC 10 in the case of State of Tamil Nadu .vs. Ramalinga
Samigal Madam. The Full Bench of this Court in the judgment
reported in 1998 1 CTC 630 in the case of Srinivasan and six
others /vs/ Sri Madhyarjuneswaraswami, Pattaivaithalai
Tiruchirappalli represented by its Executive Officer at
Pettaivaithalai Devasthanam, has held that Civil Court has got
jurisdiction to entertain the suit. Such suit is not barred by reason
of grant of patta under the provisions of Tamil Nadu Act 30 of
1963. Civil Court is entitled to nullify the decisions of the
authorities which had been accorded finality on proof of settled
exceptional factors. In view of the above judgments, this Court is
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of the view that though the orders of the Settlement Officer has
reached its finality, still the Civil Court can go into the title of the
properties. As referred to earlier, ExB8 patta has been granted on
the basis of four sale deeds and no enquiry whatsoever was held
in respect of the continuous possession as envisaged under Section
8(2)(a) and (b) of the Act 30 of 1963. In the absence of any enquiry
with regard to the continuous possession for more than 60 years or
12 years immediately before the first day of April 1960, granting
patta on the basis of the sale deeds alone, in the opinion of this
Court will not bar the Civil Court's Jurisidiuction to go into the
question of title.
24.It is also relevant to note that it is the specific case of the
defendants 6 and 7, they have purchased the property under the
sale deeds, dated 1.3.2011, 10.3.2021 under Ex.B21 and Ex.B22. In
the written statement they have specifically pleaded that the suit
property measuring an extent of 6.7 acres in S.No.793 was
originally a minor inam land granted to the plaintiff temple for
preparing garlands to the deities (Thirumalaikatti).Paragraph 2 of
the written statement of defendants 6 and 7 reads as under:
''2.The suit properties depicted in three
schedules are comprised in S.No.793 of Thanthoni
Village, measuring a total extent of 6.77 acres. It is
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admitted that S.No.793 as a whole was originally a
minor inam land granted to plaintiff temple for
providing the service of making garlands to the
deities, Thirumalaikatti. The service holders belonging
to Konar community were in possession of the said
land and were rendering the designated service to the
temple. During 6.4.1892, one of the service holder by
name Vadalamalai Konar, son of Seeranga Naicker @
Possari Naicker and Bomma Naicker @ Poosari
Naicker. After a spate of transactions relating to the
said land , during 1962, 1965 and 1968 Machcha
Naicker, son of Muthu Naicker totallhased an extent of
4.88 ½ acres and consequently was in possession and
enjoyment of the same. Though the said sale
transactions cannot be deemed to be vest absolute
title with respect to the said properties, the said
Machcha Naicker by virtue of the above stated sale
was in possession and enjoyment of 4.88 ½ acres
within specific four boundaries in S.No.793, which are
now shown as A and B schedules in the plaint;''
25.The very written statement itself clearly show that the
property was endowed and the minor inam land granted to the
temple and the service holders belonging to the Konar community
were in possession of the said land rendering the designated
service to the temple. The so-called predecessor one Matcha
Naicker purchased the property in the year 1961, 1962 and 1965
under three sale deeds. Therefore the patta issued in his name
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under Section 8(2)(A)(i) of the Act itself is against the provision of
the Act. No document was produced to show that his predecessor
in title were in continuous possession for more than sixty years
before the first day of April 1960 or 12 years immediately before
the appointed day. When the title itself is admitted by the
defendants, the trial Court, in fact, has disbelieved the title deeds
produced by the temple under Ex.A1-Inam Fair Copy Register on
the ground that there are some discrepancies in the entries. It is
relevant to note that a stand has been taken before the trial Court
that it is only a personal grant. When the pleading in the written
statmeent clearly indicates that the property was endowed to the
temple and service holders are enjoying the property and they
dealt with the property, the question of personal grant as
contended by the defendants does not arise at all and it is against
their own pleadings. The trial Court has disbelieved Ex.A1 mainly
on the ground that the entries were made in different dates. It is to
be noted that it is nobody's case that the property originally not
belong to the temple.Such being the position, the Trial Court giving
undue importance to some discrepancies in the entries to non-suit
Ex.A1, is also not proper.
26.Section 21 of the Tamil Nadu Minor Inam Abolition Act,
1963, reads as follows:
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''21. Service Inams:-(1) The provisions of this
Section shall apply in respect of any minor inam
which was held immediately before the appointed
day by an individual (hereinafter referred to in his
section as the service holder) on condition of
rendering service to a religious , educational or
charitable institution.
(2)The service holder shall, subject to the
provisions sub-section (3), be bound to continue to
render the service after the appointed day.
(3)(i)Where a service holder is entitled to a
ryotwari patta under Section 8 in respect of any land,
he shall have the option;
(a) either to pay to the religious institution the
amount specified in sub section (4) and on such
payment the land shall, notwithstanding anything
contained in sub section (7), be discharged from the
condition of the service; or
(b)to hold the land and continue to render
service subject to the provisions contained in sub
sections (1)(2),(6) and (7).
(ii)The option referred to in clause (i) shall be
exercised within such time from the appointed day,
and in such manner as may be prescribed.
(4)The amount referred to in sub section (3)
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shall be twenty times the difference between the fair
rent in respect of such land determined in
accordance with the provisions contained in the
Schedule and the land revenue due on such land.
(5)Where the service holder has exercised his
option to pay the amount specified in sub section (4),
the tasdik allowance referred to in sub section (6) in
respect of the period subsequent to the date of the
exercise of such option shall be the absolute
property of the institution and the institution shall be
at liberty to make such arrangements as it thinks fit
for the performance of the service.
(6)(a) For so long the service holder renders
service, the institution shall pay to the service holder
the tasdik allowance paid by the Government under
Section 20.
(b) If the service holder fails to render service ,
the prescribed office shall after such inquiry and
after such notice to the service holder as may be
prescribed in this behalf, notify such failure in such
manner as may be prescribed. He shall then declare
that the tasdik allowance payable to the institution
in respect of the period subsequent to the failure
shall be the absolute property of the institution and
the institution shall be at liberty to make such
arrangement as it thinks fit for the performance of
the service.
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(7)(a) For so long as the service holder renders
the service, he shall be entitled to occupy
permanently the lands in respect of which he is
entitled to a patta under Section 8, subject, however,
to the payment of the assessment fixed under
Section 16 or under Section 16-A, as the case may be
in respect of such lands.
(b)If the service holder fails to render the
service, the prescribed officer shall, after such
inquiry and after such notice to the service holder as
may be prescribed in this behalf, notify such failure
in such manner as may be prescribed. He shall then
declare that the service holder's right to occupy
permanently the land under clause(a) shall cease and
determine, and the institution shall be at liberty to
make such arrangement as it thinks fit for the
performance of the service and shall be entitled to
hold the land as its absolute property subject,
however to the payment of the assessment fixed
therefor under Section 16 or under Section 16-A, as
the case may be.
Explanation I- For the pruposes of this
Section
(i)service holder includes his heirs
(ii)non performance of the service due to
illness or other temporary disability shall not be
deemed to be failure to render service, provided that
the service holder makes alternative arrangements
for rendering the service during the period of such
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illness or of other temporary, disability.
Explanation II:- For the purposes of sub
section (4)''land revenue'' means the ryotwari
assessment including the additional assessment,
water cess and additional water cess.''
27.Section 44 of the Act raises presumption that whenever
any inam is granted to an individual for rendering services to a
religious institution, it shall be presumed that the inam consists of
both Melaram and Kudivaram. Section 44 reads as follows:
''44.Presumption in the case of service
inam:--In proceedings under this act relating to any
inam granted for the benefit of any religious,
educational or charitable institution or granted to
any individual for rendering service to a religious,
educational or charitable institution or for the
purpose of rendering any other service, it shall be
presumed, unless the contrary is proved that the
inam consists not merely of a grant of the melvaram
in the land but also the kudivaram therein.''
Therefore, if the stand of the respondents that it is only a personal
gant, it is only with an obligation to render service to the temple.
Further Section 21(7)(b) of the Act makes it clear that if the service
holders fails to render the designated service, the temple is
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entitled to resume the land. Further, no evidence whatsoever was
produced to show that the service holder was rendering service to
the temple.
28.Explanation to sub-section 17 of Section 6 of the Hindu
Religious and Charitable Endowments Act states that any inam
granted to Archaka/service holder, other employees of the
religious institution for the performance of any service or charity
shall not be deemed to be a personal gift to the service holder.
Therefore any sale made by service holder is not valid and did
not convey any title to the subsequent purchaser. Ex.B2 earlier
document of the year 1892 and on a perusal of the same, makes it
clear that only the persons working as Archaka(Poojari) and their
legal heirs dealt with the property. This fact clearly show that the
property is absolutely belong to the temple. Further no evidence
was produced to show that service holder was rendering service
to the temple. When the sevice holder has no right to deal with the
property, any sale made by the Archaka or the service holder
would not convey any title in favour of the subsequent
purchaser.Therefore the subsequent sale deeds based on the said
sale is also void. It is also relevant to note that Matcha Naicker in
whose name patta was granted under the Act 30 of 1963 based his
claim only on the basis of the sale deeds in his favour, dated
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6.7.962, 2.11.1965 and 13.2.1968 Ex.B2 to Ex.B5. The suo-motu
settlement proceedings were initiated in the year 1967, as it could
be seen from Ex.B6 and in the above suo-motu proceedings, a
claim was made by Matcha Naicker based on the sale deeds of the
year 1962. To show that his predecessor in title was in exclusive
possesion as required under Section 8(2) of the Act for a particular
period and no document whatsoever was placed. Even when the
matter was remanded, no such document was produced. Therefore,
when there was no evidence to show continuous possesion fore
more than 60 years before the appointed day or 12 years
immediately before the appointed day, the very grant of patta in
favour of Matcha Naicker based on three sale deeds of the year
1962, 1965 and 1968 by the Settlement Officer itself is not proper.
29.The Honourable Apex Court, in Civil Appeal No.2671 of
2012, dated 23.2.2022,in the case of Sankaranarayana Swamy
Devasthanam .vs. P.S.Chandrasekara Raja, held as follows:
''17.Once it is clear that even as per the
admitted case of the respondent, it was a grant
burdened with the service and that there was a right
of resumption under Section 21(7) of the Act, the
respondent cannot resist the reliefs sought by the
temple. In other words, the sale deeds in favour of the
respondent or his predecessors-in-title cannot take
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away the statutory right of the appellant-temple to
resume the land. An institution which has the right of
resumption, has a right to seek a declaration that the
sale is null and void. There is no point in allowing
title to remain with some one and possession with
another.''
30.The learned counsel for the respondents submitted that
the property is already vested with the third parties from the date
of the sale Ex.B1. According to him, prior to the amendment to
Section 109 of the Tamil Nadu Hindu Religious and Charitable
Endowments Act, old Limitation Act in fact applicable. It is relevant
to note that un amended Section 109 reads as follows:
''109.Nothing contained in any law of limitation
for the time being in force shall be deemed to vest in
any peson the property or funds of any religious
institution which was not vested in such person or his
predecessor intitle before 30th Sepetember 1951.''
31.A perusal of the above makes it clear that when the
property is not vested with any person before 30.9.1951,
thereafter limitation Act will apply. It is relevant to note that when
the service holder has no right to deal with the property and sold
the property and there is no evidence to show that service holder
doing service, further based on the said sale, the purchasers were
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in occupation of the property, the vesting cannot be inferred merely
on the basis of the sale deed. Further, no document whatsoever
was filed to show that the property has been vested before
30.09.1951 to invoke the unamended Section 109 of the Hindu
Religious and Charitable Endowments Act. Even in the present suit,
except the subsequent sale deeds and mortgage deed of the year
1983 and 2004 and some kist receipts of the year 1985 and 1986,
which came into existence only after Ex.B8 proceedings. No other
documents filed to show that property already vested with the
purchasers. Therefore, the contention of the learned counsel for the
respondents cannot be countenanced. Other contention of the
learned counsel for the respondents that the Amended Section 109
of the Hindu Religious and Charitable Endowments Act applicable
only to a suit for possession and not for declaratory reliefs, also
cannot be countenanced, for the simple reason that very object of
the amendment was to literally remove any restriction by way of
limitation in recovering the religious institution's immovavble
properties.Therefore, merely declaratory relief is claimed, where
the larger relief is for recovery of possession, the contention that
Section 109 of the HR &CE Act not applicable, has no legs to
stand.
32.It is also relevant to note that in the entire Written
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Statement of defendants 6 and 7, it is not their case that the very
predecessor in title have perfected title by prescribtion and
adverse possession even prior to 30.09.1951. In the entire written
statement of defendants 6 and 7, no pleadings whatsoever was
made with regard to adverse possession by the predecessor in
ttitle. In the absence of any evidence and pleadings with regard to
the adverse possesion, the plea of adverse possession has to fail,
Much reliance is placed on the judgment of the Honourable Apex
Copurt reported in (2008) 7 MLJ 534(SC)in the case of
T.Kaliamurthi and another .vs. Five Gori Thaikal Wakf and
others held that ''Before the commencement of the Wakf Act,
period of limitation prescribed under 1908 Act already got expired
in 1993, Further taking note of the fact that sale were made in the
year 1927, 1930 and persons who has obtained patta and enjoyed
the property absolutely, suit is barred by limitation''. This Court is
of the view that the above judgement is not applicable to the facts
of the present case. When the Act 30 of 1963 came into force, the
inam properties vest with the Government only exception was
issuance of ryotwari patta granted under Section 8(2) of the Act.
Only on specific paramaters contained in Section 8(2)(1b)),
ryotwari patta can be granted.Therefore the plea of limitation
cannot be pressed into service. Similarly, reliance was placed on
the decision of the Apex Court in 2023 (2) CTC 856 in the case
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of Sabir Ali Khan /vs/. /Syed Mohammed Ahamad Ali Khan
and others. The Honourable Apex Court in relation to the Muslim
Wakf Act held that Article 134(b) will not be applicable to the facts
of the present case and Article 96 will apply only to the valid
transfer and considering the nature of the pleadings proof in the
above case, held that the suit was filed beyond the period of
limitation. The above judgment is not applicable to the facts of the
present case.
33.From the above, this Court is of the view that the trial
Court has misdirected itself and held that proper doument has not
been filed to prove the case and finally decreed the suit in
respect of 'C' schedule of property and dismissed the suit in
respect of 'A' and 'B' schedule of property. Accordingly, the points
are answered and hence, the trial Court findings in dismissing the
suit in respect of 'A' and 'B' schedule of property has to be
necessarily be set aisde and accordingly the same is set aside.
34.In fine, the appeal suit is allowed setting aside the
dismissal of the suit in respect of 'A' and 'B' schedule of property
and the respondents are directed to hand over the possession of
'A' and 'B' schedule property to the appellant/temple within a
period of two months from the date of receipt of a copy of the
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judgment. The findings of the trial Court with regard to 'C'
schedule property stands confirmed. No costs.
19.06.2023
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
To
1.The Additional Sessions Judge,
Fast Track Mahila Court,
Karur.
3.The Section Officer,
V.R Section,
Madurai Bench of Madras High Court,
Madurai.
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N.SATHISH KUMAR, J.
vsn
JUDGMENT MADE IN
A.S(MD)NO.118 OF 2020
19.06.2023
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