Madras High Court
(Title To Item 1 Property At The ... vs Palaniappa Pulipanipathira Swamigal ... on 1 March, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S.A.(MD) Nos.589, 590 of 2015 &
and S.A.(MD) Nos.652 & 653 of 2022
INDEX TO THE COMMON JUDGMENT
CONTENTS PARA NO.
Introductory 1- 3.3
Structure of the Judgment 4
PART-A
O.S. No. 105 of 1999
(Title to Item 1 property at the foothills)
Pleadings of the plaintiff 5 - 6.4
Pleadings of the 3rd defendant 7
The Trial 8.1 - 8.4
Findings of the Trial Court 9 - 10.4
The First Appeal and the Findings of the Court 11 & 12
The Second Appeal:
Prelude to the second appeal 13
Substantial questions of law 14
The Arguments :
Arguments of the appellants 16
Arguments of the first respondent / plaintiff 17
Appellant‟s Reply 18
Discussion & Decision:
Preludial Statement 19-21.3
On the maintainability of the suit 22 - 24
Outlining the Court‟s approach 25 - 27
Understanding the plaintiff‟s evidence 28 – 29
TABLE I (Extracts from Exts: A3, A4, A59, A86 to A88)
TABLE II (Mackenzie‟s Manuscripts)
TABLE III (Gazetteers of India- Madurai District)
TABLE IV (Palani VaralatruAavanangal (in Tamil OR
(Historical Documents of Palani)
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TABLE V (Kongu Mandala Varalarukal) (Tamil)
Delayering the historical facts of the plaintiff's case 30
Bhogar, Adhipulipani and Palani hills – Fact or Fiction? 31 - 33.2
Faith as an evidentiary fact 34 - 35.2
Proof of faith as a fact – Sec.57 of the Evidence Act 36 - 42
Plaintiff‟s lineage to Pullipani 43- 47.2
Ext. A6, the Memorandum of Zamindar of Ayakudi 49 - 53
Edict of Dalavoy Ramappier ( Copper Plate Inscription) 54.1 - 59
Acquisition of the title by the first occupant, res nullius, 60 - 65
pedis possessio and Sec.110 of Evidence Act
Defendants‟ case on its title and Plaintiff‟s title 66- 71.2
Conclusion 72.1 & 72.2
PART – B
O.S. No.106 of 1999
(Suit for management of Bogar Samadhi)
Pleadings of the plaintiff 73.1 - 74
Pleadings of the defendants 75
Issues and findings of the Trial Court 76.1 & 76.2
The First Appeal and the Findings of the Court 77
The Second Appeal: 78
Arguments for the appellants 79
Arguments for the first respondent 80
Reply of the appellants 81
Discussion and Decision :
On maintainability of the suit 82 - 90
On Evidence 91 – 92
Conclusion 93 - 95
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
CORAM : JUSTICE N.SESHASAYEE
Reserved on : 03.07.2023
Pronounced on : 01.03.2024
S.A.(MD) Nos.589, 590 of 2015 &
and S.A.(MD) Nos.652 & 653 of 2022
S.A(MD) Nos.589 & 590 of 2015 :
The Executive Officer,
A/M.Dhandayuthapaniswami Devasthanam,
Palani. ... Appellant in both appeals
3rd Respondent/3rd Defendant
Vs
Palaniappa Pulipanipathira Swamigal (Died)
1.Sri Sivanandha Pulipani Swamigal
S/o.Sri Palaniappa Pulipanipathira Swamigal
Pulipani Ashram, Giri Street, Palani.
... 1st Respondent in both Appeals/
Appellant/Plaintiff
2.The State of Tamil Nadu, Rep., by
The District Collector, Dindigul.
3.The Commissioner, HR & CE.,
(Administration) Department,
Holding his office at Nungambakkam,
Chennai-34. ... Respondents 2 & 3 in both Appeals/
Respondents 1 & 2/Defendants 1 & 2
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
S.A(MD) Nos.652 & 653 of 2022 :
The Commissioner
Hindu Religious and Charitable Endowments
(Administration) Department
holding his Office at
Nungambakkam, Madras - 600 034. ... Appellant in both appeals
2nd Respondent/2nd Defendant
Vs
Palaniappa Pulipanipathira Swamigal (Died)
1.Sri Sivanandha Pulipani Swamigal
S/o.Sri Palaniappa Pulipanipathira Swamigal
Pulipani Ashram,
Giri Street, Palani.
... 1st Respondent in both Appeals/
Appellant/Plaintiff
2.The State of Tamil Nadu, Rep., by
The District Collector,
Dindigul. ... 2nd Respondent in SA.(MD)No.652 of 2022
... 3rd Respondent in SA.(MD)No.653 of 2022 /
3rd & 1st Respondent / Defendants
3.The Executive Officer,
Arulmighu Dhandayuthapani Swami Devasthanam,
Palani. ... 3rd Respondent in SA.(MD)No.652 of 2022
... 2nd Respondent in SA.(MD)No.653 of 2022
Respondents 1 & 3/Defendants 1 & 3
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Prayer in S.A.(MD) No.589 of 2015: Appeal filed under Section 100 of
Civil Procedure Code to set aside the judgment and decree dated 23.06.2015
in A.S.No.78 of 2001 on the file of Additional District Court, Dindigul in
partly allowing the judgment and decree dated 22.02.2001 made in
O.S.No.105 of 1999 on the file of Subordinate Court, Palani.
Prayer in S.A.(MD) No.590 of 2015: Appeal filed under Section 100 of
Civil Procedure Code to set aside the judgment and decree dated 23.06.2015
in A.S.No.79 of 2001 on the file of Additional District Court, Dindigul in
reversing the judgment and decree dated 22.02.2001 made in O.S.No.106 of
1999 on the file of Subordinate Court, Palani.
Prayer in S.A.(MD) No.652 of 2022: Appeal filed under Section 100 of
Civil Procedure Code to set aside the judgment and decree dated 23.06.2015
made in A.S.No.78 of 2001 on the file of Additional District Court, Dindigul
in partly allowing the judgment and decree dated 22.02.2001 made in
O.S.No.105 of 1999 on the file of Subordinate Court, Palani.
Prayer in S.A.(MD) No.653 of 2015: Appeal filed under Section 100 of
Civil Procedure Code to set aside the judgment and decree dated 23.06.2015
made in A.S.No.79 of 2001 on the file of Additional District Court, Dindigul
in reversing the judgment and decree dated 22.02.2001 made in O.S.No.106
of 1999 on the file of Subordinate Court, Palani.
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
In S.A.(MD) Nos.589 & 590 of 2015 :
For Appellant : Mr.AR.L.Sundaresan, Senior Counsel
for Mrs.A.L.Gandhimathi
For Respondents : Mr.V.Raghavachari, Senior Counsel
assisted by Mr.S.Madavan for R1
Mr.R. Shunmuga Sundaram
Advocate General
assisted by Mr.R.Baskaran, A.A.G
& Ms.K.Christy Theboral for R2 & R3
In S.A.(MD) Nos.652 & 653 of 2022 :
For Appellant : Mr.R.Shunmuga Sundaram
Advocate General
assisted by Ms.K.Christy Theboral
Additional Government Pleader
For Respondents : Mr.V.Raghavachari, Senior Counsel
assisted by Mr.S.Madavan for R1
Mr.AR.L.Sundaresan, Senior Counsel
for Mrs.A.L.Gandhimathi
for R3 in S.A(MD).No.652 of 2022 &
for R2 in S.A(MD) No.653 of 2022
Mr.R.Shunmuga Sundaram
Advocate General
assisted by Mr.R.Baskaran, A.A.G
for R2 in S.A.(MD) No.652 of 2022 &
for R3 in S.A.(MD) No.653 of 2022 &
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COMMON JUDGMENT
Introductory:
1. This batch of four-second appeals arises from two separate suits, viz.,
(a) O.S.105 of 1999 and (b) O.S.No.106 of 1999, both instituted by
the same plaintiff before the Sub Court, Vedasandur. These suits
were earlier instituted before the Sub Court, Dindigul as O.S.No.101
of 1982 and O.S.No.97 of 1983 respectively.
2. An outline of the disputes involved in the two suits is as follows:
a) The dispute in O.S. 101 of 1982 pertains to the title to certain property
at the foothills of Palani Hills, where Pulippani Pathira Ashram is
located. The controversy in O.S.97 of 1983 pertains to the right of
management of the 'Bogar Samadhi' at the top of the Palani hill,
located within the precincts of Dhandayuthapani Swami temple.
b) In both the suits, ancillary reliefs of prohibitory injunction were also
sought against the officials of the Hindu Religious and Charitable
Endowments (hereinafter HR & CE) Department, the defendants in
the suits, from interfering either with the plaintiff's possession of the
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suit property as in O.S.No.101 of 1982 or with the right of
management of 'Bogar Samadhi' as in O.S.No.97 of 1983.
3.1 Both the suits came to be tried jointly by the Sub Court, Dindigul, and
these suits were dismissed on the ground that the plaintiff had not issued a
pre-suit statutory notice under Sec. 80 CPC. The matter was taken in
appeals by the plaintiff, which overturned the ground of dismissal of the trial
Court, and remanded the matter for de novo consideration.
3.2 By now, a Sub Court was established in Vedasandur. These suits were
remanded to the file of that Court, where they were taken on record as
O.S.105 of 1999 and O.S. 106 of 1999. Both the suits were jointly tried by
the learned Sub Judge, Vedasandur and were eventually dismissed vide a
decree dated 22.02.2001. Promptly, the plaintiff preferred first appeals to
the District Court in A.S.Nos.78 of 2001 and A.S.79 of 2001 respectively
against the decree passed in O.S.Nos.105 of 1999 and 106 of 1999. On
23.06.2015, the first appellate Court allowed both the first appeals. The
judgement and decree of the first appellate court are challenged in the
instant appeals.
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3.3 The second appeals are preferred both by the Executive Officer of the
Dhandayuthapaniswamy Devasthanam, Palani, and the Commissioner,
H.R.&C.E., who were the 3rd & 2nd defendants in O.S.105 of 1999, and 1st
and 2nd defendants in O.S.106 of 1999 respectively. The details are
tabulated below:
Original Suit First Appeal Second Appeal Appellant in S.A.
S.A.(MD)No.589 of 2015 E.O of the
Devasthanam
O.S.No.105 of A.S.No.78 of 2001
S.A.(MD)No.652 of 2022 The Commissioner
(HR&CE) Department
E.O of the
S.A.(MD)No.590 of 2015 Devasthanam,
O.S.No.106 of A.S.No.79 of 2001
1999 S.A.(MD)No.653 of 2022 The Commissioner
(HR&CE) Department
Other than the question involving title to the property where the plaintiff's
ashram is located and the right of management of Bogar samadhi, the
appellants also have raised two other questions: (a) The jurisdiction of the
civil court to entertain the dispute raised in O.S.106 of 1999 (relates to right
of management of Bogar Samadhi) is barred under Sec.108 of the H.R. &
C.E Act, and (b) the extent of authority which the officials of HR & CE
Department assert vis-a-vis the rights claimed by the plaintiff under Sec.63
of the Act. They will be dealt with at appropriate places of this judgement.
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Structure of the Judgement
4. Both suits have their distinctive features since the core fact constituting
the cause for the respective actions are different. Hence this Court chooses
to discuss both the suits separately. Part A will deal with the title suit in
O.S.105/1999, whereas in Part B, the dispute raised in O.S.106/1999 will be
considered. It is however, added that this compartmentalisation done for
convenience is not straight-jacketed, and there may be occasional references
to the suit in one part while considering the case dealt in the other part.
PART A
O.S.105 of 1999
(Title to item 1 property at the foothills)
Pleadings
5. This suit relates to the title to the suit property at the foot of Palani Hill,
the abode of Lord Dhandayudhapaniswami. The suit properties and the
reliefs claimed are now introduced:
There are four schedules of properties described in the plaint. They
are either the whole, or part of the whole, and are said to be comprised
in T.Sy.No.862/2 of Palani Town. The details are :
a) Item No.1 is a site measuring 198 ft x 140 ft (27,720 sq.ft.) with
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thatched-roof constructions, within which 'Agadi Samathi',
'Thottichi Ammal Temple' and 'Asari Madam' are located;
b) Item No.3 is part of Item No.1 property, and it is described as a
plot measuring 39.9 ft x18 ft (718.2 sq. ft);
c) Item No.4 is another part of Item No.1 property, and it
measures 26.6 ft x 10 ft (266 sq.ft.);
d) Item No.2 is [Item 1 - (Item 3 + Item 4)].
There are three principal reliefs sought, and they are: (a) to declare
that Item No.1 & 2 absolutely belonged to, and enjoyed by the
plaintiff; and (b) for allied relief of prohibitory injunction not to
interfere with their possession and enjoyment; the last set of reliefs
pertain to the recovery of vacant possession of Items Nos.3 and 4.
6.1 The cause of action for the suit rests on the following facts:
a) The plaintiff is Palaniappa Pulippani Pathira Swamigal. He died
pending the first appeal, and his successor is Sivanandha Pulippani
Swamigal. The present Pulippani Pathira Swamigal, is currently in
the management of Pulippanipathira Ashram established in Item No.1.
b) Some 5000 years ago, Bogar, a Siddhar1 brought into existence a
1 Siddha or Siddhar are spiritual masters gifted with immense spiritual and other intuitive powers and are also
known to be masters in various branches of sciences and medicine.
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'Nava-pashaana Vigraham' or deity of Sri Dhandaythapaniswami and
consecrated it at the Palani hills. He had a disciple named Pulipani or
Adhi Pulipani. He (Adhi Pulipani) was performing pooja to the deity
(Dhandayudhapani), which Bogar had consecrated. His descendants
constituted a lineage of Pulipani Pathira Swamigal, and they were
performing pooja to Dhandayudhapani. (Ext.A.4 is a publication of
the Pulipani Ashram which provides a list of Pulipani Swamigal
tracing their genealogical lineage to Adi Pulipani.
c) While so, the territory where the Palani hills are located came under
the rule of the Naickar dynasty. A certain Dalavoy Ramappaiyer, a
military general of Thirumalai Naickar (the prominent among the
rulers of the Naickar dynasty and ruled Madurai), had arrived at the
temple and decided to replace Pulipani Swamigal, a non-brahmin,
with brahmin Adhi Saiva Sivachariya for officiating as priests of the
temple. In exchange, he had granted three distinct privileges to the
ancestors of the plaintiff, namely, (i) the right of general
superintendence of the temple; (ii) certain annual emoluments; and
(iii) performing certain rituals viz., shooting the arrow, which
symbolises the destruction of demon/rakshas Indumbasura by the
presiding deity of the temple during Dusserah festival. This is
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inscribed on a copper plate, dated the 16 th day of Tamil month Thai of
Salivahana year 1399. (The contents of the copper plate inscription
are reproduced in the publications of the appellant marked as Ext.A4
and Ext.A59). Ever since, the honours or privileges conferred by
Dalavoy Ramappier are being continued to be enjoyed by every
successive Pulipani Pathira Swamigal till date.
d) This apart, the plaintiff also has the right to officiate as priest of
Bogar Samadhi (which is the subject matter of litigation in
O.S.No.106/1999).
e) Within item 1 is situated a thatched-roofed accommodation for
Pulippanipathira Swamigal who holds the office for the time being,
and other family members. Besides, there is a madam which is known
by the name Asari Madam where in are placed a few deities namely
Thottiochi Amman, Thanjavur Amman, and Valliamman. (As referred
to in paragraph 5 above, Item No.1 property is called the 'Agadi
Samathi').
f) In a portion thereof, the mortal remains of the earlier Pulippani
Pathira Swamigal and his family members had been interned. For
interning the mortal remains of then Pulippani Pathira Swamigal,
permission of the Municipality was sought, and the Commissioner of
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Palani Municipality had issued Ext.A17 proceedings dated
07.09.1938, for the purpose.
g) Long before this, on 15.11.1844, a certain Kumara Kondama Naicker,
the then Zamindar of Ayakudi, had issued Ext.A-6 memorandum to
the ancestor of the current Pulipanipathira Swamigal, who was then
in charge of the affairs of the ashram, declaring that item No.1
property had been in the enjoyment and possession of the plaintiff's
predecessor in interest from the day of Karnataka Rajas, and that Item
No.1 was the absolute property of Pulippani Pathira Swamigal.
h) Be that as it may, the Tahsildar of Palani had issued Ext.A15, notice
dated 06.08.1948 under Sec. 7 of the Land Encroachment Act to the
plaintiff's predecessor to vacate the suit item No.1 and this was
dropped by the Sub Collector, Dindigul vide Ext.A-18 proceedings.
i) Subsequently, the Palani Devasthanam had sent a notice to the
predecessor of the plaintiff claiming title to Item No.1 and this was
replied to by the plaintiff's predecessor, following which no action
was taken by the Devasthanam (no documents pertaining to this
allegation is marked).
j) The suit property has been assessed to property tax in the name of the
plaintiff and his predecessors. Exts.A22 to A33 and Exts.A62 to 82
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(dated between 1899 and 1982) vouchsafe for this.
6.2 The plaintiff and his predecessors are thus in continuous possession of
plaint Item No.1 for well over the statutory period, and even if it were
considered that the plaintiff had no title over the property, Pulippani Pathira
Swamigal and his successors-in-office are the absolute owners of Item No.1
by virtue of they holding the office.
6.3 While so, during 1975-1976, Palani Devasthanam, the third defendant,
had illegally encroached into a portion of Item 1 property, and put up some
construction and this portion is described as Item No.3. Again in April
1982, they put up a wire fencing to another portion in the remaining
property, and this is described as Item No.4. The further details of the
allegations made thereto are not very germane since the plaintiff has now
given up their claim over Item Nos.3 and 4.
6.4 It is in these circumstances, to safeguard their title and possession of the
property, the plaintiff had laid the suit, alleging as above and has sought
declaration of title over Item 1 with associated ancillary reliefs,
accompanied by an alternative relief for declaration of title by prescription.
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Pleadings of the Defendants:
7. The pleadings / written statements of the third defendant filed in both the
suits can be consolidated. In refuting the plaintiff's claim of suffixing his
name with 'Swamigal', the defendants would claim that neither the plaintiff
nor his predecessors have ever lived the life of an ascetic, but lead a normal
family life. The further allegations in defence of the cause of action in both
the suits are:
a) Neither the sthalapuranam, irrespective of who the publisher is, nor
the copper-plate inscription relied on by the plaintiff has any
relevance to the cause of action in both the suits. Indeed, the copper-
plate inscription cannot have any relevance after the temple was first
taken over by the East India Company and then by the British
Government, some 150 years and more, before the advent of the
Hindu Religious and Charitable Endowment Act, 1959.
b) Item 1 property in O.S.105 of 1999 at the foothills is a poromboke.
Indeed the entire hill is classified as a temple poromboke.
c) The grant of certain emoluments or privileges in terms of the alleged
copper-plate inscription is denied, and at any rate, neither the plaintiff
nor its ancestors had anything to do with Saint Boghar.
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d) The plaintiff's claim of title by prescription is denied. The payment of
property tax to the local body for the plaintiff's residence does not by
itself enable him to claim title by prescription.
e) The plaintiff was put in possession of a portion of the property at the
foot of the Palani hill by the temple administration to enable him to
discharge his duties more efficiently. The burial of some of the
plaintiff's ancestors has little relevance to the cause of action. It is
surprising that the plaintiff now attempts to include even the
surrounding temples and 'madams' as part of the 'Agadi Samadhi' and
claims title to it. Indeed item 1 property is classified as temple-
poromboke,
f) Ext.A.6, dated 15.11.1844 said to have been issued by the Zamindar
of Ayakudi cannot confer any title to the plaintiff. The Zamindar at
the best was only a manager of the temple, and as a trustee of the
temple, he had no right to alienate or encumber the temple-poromboke
to anyone. Indeed, there is no reference to Ext.A.6, memorandum in
the publication made by the plaintiff in 1968.
g) So far as the survey of the property goes, the entire Palani Hills/
Sivagiri Hills has been set apart by the Government as temple
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property, and it was originally assigned Old S.No.811. Its
corresponding Re-survey No. is 862, and it always stood in the name
of Dhandaythapani temple under the classification of 'temple
poromboke'. It being a temple property, it will not fall within the
ambit of Land Encroachment Act. Indeed, even going by the
statement of the plaintiff, till 1926, the property was held under the
classification of Government-poromboke, and hence the plaintiff
could not have acquired any title to the property prior to it.
h) It is true that sub-division was made to Sy.No:862, but it was made by
the Tahsildar, and it was made behind the back of the defendants in
1935. This came to the knowledge of the authorities of the temple,
who made efforts to cancel it and had it cancelled, vide proceedings
of the Sub Collector. Thereafter, in 1949, the plaintiff had obtained
an order for sub-division of the property and on coming to know of
this, the defendant had presented a petition to the Tahsildar, which is
marked as Ext.B19. Now, the latest Town Survey Extract Register
produced by the plaintiff does not show any sub-division as S.No.862/2.
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The Trial:
8.1 The battle lines were drawn in both the suits: To paraphrase the
pleadings in O.S.105 of 1999, the plaintiff case is found on a lineage
commencing from Adhipulipani, the disciple of Siddhar Bogar, both of
whom were believed to have lived some 5000 years ago (roughly about 3000
BC), based on which the plaintiff claims title to Item 1 through immemorial
occupation of the same, with an alternative plea of prescription of title by
adverse possession. In O.S.106 of 1999, he claims exclusive right to
manage the Bogar Samadhi.
8.2 The quintessence of the defence in the former suit is that whatever
material based on which the plaintiff claims title to item 1 property has zero
value in establishing a case for declaration of title, as item 1 property was
part of what is classified as (a) temple-poromboke; and (b) that the property
was under the administration of the erstwhile East India Company, and then
by the British, and none else could grant a right of occupancy.
8.3 In O.S.105 of 1999, the trial court framed 7 issues, whereas in O.S.106
of 1999, it framed 6 issues. As indicated earlier, both the suits were tried
together and the evidence was recorded in O.S.105/1999 (Originally
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O.S.No.101 of 1982 before Sub Court, Dindigul).
8.4 On the side of the plaintiff, the plaintiff examined himself as P.W.1 and
also examined certain S.Balasubramanian as P.W.2, and produced Ext.A1
to Ext.A88 (of which up to Ext.A59 was marked before remand of the suits).
Some of these documents have already been referred to in the narration on
pleadings. For the defendants D.W.1 to D.W.4 were examined, and in all
Exts.B1 to B 32 were produced and also Exts. X1 and X2. Of them, Ext.B1
to Ext.B14 were marked through the witnesses for the plaintiff during the
cross examination, Ext.B29 to B32 and Exts.X1 and X2 came to be marked
through D.W.2, D.W.3 and D.W.4. The trial Court also appointed a
Commission for local inspection and the Commissioner's Report was
marked as Ext.C1 to Ext.C87, and the Commissioner himself was examined
as C.W.1
Findings of the Trial Court:
9. The trial court dissected the facts on which the plaintiff has rested his
cause of action into the following heads: (a) Sustainability of the genealogy
of the present Pulipani Pathira Swamigal, tracing the plaintiff to Adhi
Pulipani who lived some 5000 years ago; (b) The believability of copper
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inscription of Dalavoy Ramappier; (c) Lost Grant; and (d) Sustainability of
the plea of adverse possession.
10.1 The findings of the trial court on each of these heads may now be
detailed. First, it disbelieved the plaintiff‟s claim of lineage to Adhi
Pulpani, and its reasoning is:
➢ That P.W.1 in his testimony has admitted that Adi Pulipani is a
Kannada Udayar, and has also admitted that the present Pulipani
Pathira Swamigal belonged to the Mudaliyar community, and it is
doubtful how a Canarese Udayar could become a member of
Mudaliyar community. At any rate, Ext.A4 is a post litem motam
document since it was published about three decades after the
commencement of the dispute between the Devasthanam and the
plaintiff in the mid-1930s, and it carried little evidentiary value.
➢ The trial Court first laid its hands on Ext.A4, a publication of the
plaintiff in 1965, and has held that if the lifespan of the list of
Pulipanis as given in this document were to be trusted, then each of
the Pulipani should have lived on an average for 443 years, which is a
biological impossibility.
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and S.A.(MD) Nos.652 & 653 of 2022
10.2 So far the believability of the copper-plate inscription attributed to
Dalavoy Ramappier, (whose contents are extracted in a few publications of
the Devasthanam such as Exts.A59 (published in 1941), A3 (published in
1970), the trial court held:
a) The extract of the copper-plate inscription refers to the year of its
making as the year 1399 of the Salivahana calendar, and it
corresponds to 1477 A.D. This copper plate inscription describes
Dalavoy Ramappier as the General of Thirumalai Naickar. But
Thirumalai Naickar‟s reign of Madurai was between 1623 and 1659
A.D, and hence it is improbable that a copper-plate inscription said to
have been made in 1477 A.D. could be attributed to Dalavoy
Ramappier during the reign of Thirumalai Naickar.
b) Adding to the improbability of its authenticity is the fact that the said
copper plate too was not produced.
c) So far as the reference to the contents of the copper plate inscription
in the publications of the Devasthanam referred to above goes, they
are not conclusive evidence as to operate as an admission and that its
evidentiary value depends on the circumstances of its making, and
that it can be shown to be erroneously made.
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10.3 Turning to the possibility of the plaintiff acquiring title through the
doctrine of lost grant, the trial court approached the issue with excessive
reliance placed on S.Sundararaja Iyengar's 'Land Tenure', (first edition,
1916). The trial court held:
a) A grant is but a gift. It is also referred to as inam in Arabic, or
manyam in Tamil. Under the British Government, when a grant or a
manyam is made for performing any religious service in the temple, it
would enter the same in the Inam Register, which the Madras Inam
Commission, established in 1858, had maintained. The information
for making entries in the register would be made on a personal
enquiry of the landholders. And, if only item 1 property were granted
as an inam to the ancestors of Pulipaniswamigal for performing
certain services in the temple (called devadayam), it would have been
entered in the Inam Register. In Roman Catholic Mission Vs State of
Madras [AIR 1966 SC 1457 (1464)], the Supreme Court has held that
in the absence of any positive or proper evidence to the contrary, such
declaration made in the Inam Register must possess supreme
importance. There is no contra evidence to negate the probability
which the Inam Register throws.
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b) This apart, in Ext.B.31, a photocopy of the original Settlement
Register of the year 1886 (which is in the District Collectorate which
the trial court appears to have accessed) it is seen that the Palani hill
was assigned Sy.No:811, and it was stated to cover 90.31 acres. Its
pattadar is shown to be 'Palani Sri. Dhandayudhapaniswami Rock
temple', and it is classified as 'poromboke'. In the re-settlement
register prepared in 1920, Palani Hill was brought under Sy.No:862.
In the copy of the Re-Settlement Register (marked Ext.B.32), the
extent is shown as 98 acres and 13,008 sq.ft, and was classified as
Government Poromboke, and was registered as Sri Palani
Dhandayudhapani temple. The plaintiff would rely on the revenue
sub-division of Sy.No:862 into Sy.No:862/1 and 862/2 in 1936, but it
was cancelled in 1938 as recorded in Ext.X2. Presently, this land is
with the Palani Municipality. The facts showed that there never was a
grant in favour of the plaintiff's ancestors, and communal lands such
as temple lands could never be a subject matter of grant. For a lost
grant to apply, facts must give rise to a situation where the court may
have to presume that there might have been a grant, which might have
been lost in antiquity.
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10.4 Turning to the plea of adverse possession, the trial court rejected the
same, and its reasoning is:
a) The plaintiff relies on the divine origin of Palani hills based on
mythology. Even if the plaintiff's case is considered, Adhi
Pulipani, the first disciple of Bogar could have been only an
officiating priest of the temple. The issue is about the right of an
archaka or a priest to claim adverse possession. The deity being a
juristic person, can hold property. Going by Ext.B31 and B32, (the
Old and the Re-Settlement Registers), the entire Palani hill is seen
as vested in the deity, and hence a manager or a priest cannot hold
it against the deity. Indeed, the plaintiff attempted to have a
revenue sub-division made, and his attempts, though initially were
successful when in 1936 Sy.No:862 was sub-divided into
Sy.No:862/1 and 862/2 (with the latter representing item 1
property), but it was thwarted within two years time, when in 1938,
the same was cancelled. As such no part of the land belonging to
the temple can be assigned. This is supported by Ext. B16, a
correspondence from the then Pulipani Swamigal to the
Devasthanam, that he had put up a compound wall only to protect
the temple property. It may be that the plaintiff's ancestors might
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have taken certain legal proceedings against the tenants vide
Exts.A18, 19, 21 and 40, but very obviously they were done
behind the back of the temple authorities. Even though the plaintiff
has produced Exts.A60 to A80 and A22 to A33 house tax receipts,
they are not adequate to extinguish the title of the true owner of the
immovable property.
b) Ext.A6 is a memorandum of Ayakudi Zamindar, it is not a
document of grant. He headed the temple Committee at the
relevant time. The British Government passed Regulation XVII
of 1817 in Madras to regulate and administer the Hindu and
Mohammedan Religious Institutions and vested the power of
superintendence in the Board of Revenue. In P. Ramanatha Iyer's
'The Madras Hindu Religious Endowment Act, it is mentioned that
between 1839 and 1842, the Government severed its connection
with the management of the temples, and no supervision was
exercised over the temples, and the temples came to be under the
management of honorary trustees who were there earlier. Ext.A6,
therefore, had come into existence when there was no
governmental supervision of the temples. And, if only it were a
grant in favour of Pulipani Swamigal at the relevant time, it would
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have been reflected in the Inam Register. In short, the Zamindar as the
manager of the temple did not have any power to assign the land.
c) Thirdly, a plea of adverse possession cannot be sustained unless
the plaintiff concedes the title of the deity.
The decision of the trial court is an obvious dismissal of O.S.105 of 1999.
As will be seen in Part B, it also dismissed O.S.No.106/1999.
The First Appeal & The Findings of the Court:
11. Aggrieved by the decree dismissing both his suits, the plaintiff preferred
A.S. 78 of 2001 against the decree in O.S.105 of 1999 (The decree passed in
O.S.106/1999 was challenged in A.S.79 of 2001 before the Additional
District Court, Dindigul, and as mentioned earlier it will find a place in Part
B). Vide its judgement and decree dated 23.06.2015, it reversed the trial
court decree and decreed the suit.
12. It may have to be stated that the plaintiff appeared to have produced the
copper plate inscription for the inspection of the first appellate court, but it
was still not produced as an additional evidence under Order XLI Rule 27
CPC. The first appellate Court has recorded that it had compared the
contents of the copper plate inscription (produced by the plaintiff under a
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memo) with its purported reproduction in Exts.A3, A4 and A59 and found
the same to be a correct reproduction of the copper plate inscription. Its
approach to the issue and findings are as below:
a) Even though the original copper plate inscription was not produced,
the fact remains that its contents are reproduced by the Devasthanam
in its Exts.A3, A59, A86 and A87 publications, and hence, it is
estopped from questioning the veracity of the contents under Sec.31
of the Evidence Act. The burden is on the Devasthanam to explain it,
but it chose not to discharge it.
b) The copper plate inscription details certain privileges or honours
granted to Pulipani. Even today, one of the honours referred to there
– shooting the arrow during the Navarathri/Dussehra festival is in
vogue, and it is continued to be done by successive Pulipani
Swamigal. The fact that it is performed as provided in the copper
plate inscription itself supports the fact that the copper plate
inscription is genuine.
c) Ext.A2 provides the genealogy of the plaintiff, but the defendants
have not challenged the names of the plaintiff's ancestors. Indeed, the
service rendered by Adhi Pulipani to Boghar is admitted and is
beyond challenge. There may be certain inaccuracies, but that will not
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affect the status of the plaintiff as the successor of the Pulipani.
d) Ext.A6, dated 15.11.1844, the memorandum of the Zamindar of
Ayakudi, shows that an extent measuring 140' N-S x 200' E-W had
been in possession of the Pulipani Ashram for a long time, and that it
had been permanently assigned to it. This shows that the said plot
was in possession of the Ashram even long before Ext.A6 document.
Further in Ext.A-87 (page 76-77) that in the 18th century, the Palani
temple was patronised by the Palaiyagars of Ayakudi and
Neiykkarapatti and others and that in 1792 Palani was taken over by
Mysore and later it was ceded away to the East India Company. This
lends credibility to Ext.A6.
e) Long thereafter, under Ext.A8, dated 29.02.1925, the Devasthanam
had granted permission to the then Pulipani Swamigal to construct a
compound wall, and it is recorded that it was granted only after
verifying Ext.A6. This is followed by Ext.A9, a notice from the
Palani Municipality requiring the matom to clear the bush around item
1. Thereafter, the Pulipanipani Swamigal had applied for the sub-
division of item 1, and the Tahsildar had issued Ext.A13 notice to the
plaintiff and Ext.A11 to the then Manager of the Devasthanam to
appear for enquiry with relevant documents. After this enquiry, the
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Tahasildar had passed Ext.A5 proceedings, sub-dividing Sy.No:862
into Sy.No 862/1 and 862/2, and assigned 862/2 to item 1. Even
though in Ext.B18 dated 27.07.1936, there is an endorsement that this
revenue sub-division was later cancelled by the Sub Collector vide his
proceedings dated 18.11.1944, the said proceedings of the Collector
were not produced. Attempts however, were made to prove the
cancellation of the sub-division through D.W.2 and D.W.3 along with
Exts.X1, X2 and Exts.B31 and B32, but they cannot be countenanced
in the absence of the order of the sub-Collector cancelling the sub-
division.
f) This apart, Exts.A7, A21, A40, A42, A47 (between 1887 and 1971)
show that the Pulipani Swamigal had at all points of time asserted
right over item 1 property in their possession, have granted a lease of
portion thereof to few tenants and have also initiated eviction
proceedings in assertion of their title. Further, a residential building
was constructed within the said property without any objection from
the temple authorities and they were assessed to property tax. To
cap it, vide Ext.A18, dated 12.10.1949, the Divisional Sub Collector
had directed the Tahasildar to drop the eviction proceedings under the
Land Encroachment Act.
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g) The suit property was not shown as a property of the temple in the
concerned register.
Ultimately it proceeded to hold that except item 3 and item 4 remaining
portion of item 1, namely item 2 property has been in continuous possession
and enjoyment of the plaintiff, and passed a decree declaring plaintiff‟s title
to item 1 excluding the constructions made in item 3 and 4 by the
Devasthanam.
Prelude to Second Appeals:
13. Challenging the aforesaid decree of the first appellate court the
Executive Officer of Palani Devasthanam had preferred S.A.(MD) No.589
of 2015 and S.A.(MD) No.590 of 2015, while the Commissioner, H.R & C.E
preferred S.A.(MD) No.652 of 2022 and S.A.(MD) No.653 of 2022. These
four second appeals respectively are filed challenging each of the first
appeals in A.S.No.78 of 2001 and A.S.No.79 of 2001 preferred by
Palaniappa Pulipanipathira Swamigal. The details of the second appeal, the
parties thereto, and its corresponding first appeals are tabulated in Para 3.3
above.
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and S.A.(MD) Nos.652 & 653 of 2022
Substantial Questions of Law:
14. The second appeals filed by Devasthanam in S.A.(MD) No.589 of 2015
and S.A.(MD) No.590 of 2015, are admitted on the following substantial
questions of law :
(a) Whether in law the appellate Court is right in coming to a
conclusion that the first respondent is a lineal descendant of
Pulipani Swamigal when Sidha Bogar was a sage and an
ascetic?
(b) Have not the appellate Court committed an error in coming
to a conclusion that when the Executive Officer failed to
prove that the suit property was assigned as a maaniyam or
grant or innam, the appellant cannot contend that the first
respondent can enjoy the suit property only in lieu of the
service rendered by them?
(c) Have not the appellate Court committed an error in
granting the relief in favour of the plaintiff especially when
there are evidence to establish that the averments in the so
called pattayam also denotes only rights of receiving certain
privileges assuming without admitting the pattayam is a
genuine document?
(d) Whether in law the appellate Court is right in shifting the
burden of proof on the appellant with respect to thamira
sasanam, when the pattayam was not produced before the
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Court but flashed before the Court on memo and the burden
is only with plaintiff?
(e) Whether the appellate Court erred in coming into conclusion
that the copper plate shown to the Court was original,
devoid of any evidence on merits?
(f) Whether the appellate Court right in reversing the well said
findings of the trial Court that the status of the respondent is
nothing more than a poojari of Bogar Samathi which is a
temple within the purview of the Hindu Religious and
Charitable Endowment Act attached to the appellant Temple?
Since the second appeals filed by the Commissioner, HR&CE Department
[S.A.(MD) Nos.652 & 653 of 2022] also challenge the decrees of the first
appeals in A.S.No.78 of 2001 and A.S.No.79 of 2001 respectively, a
learned Single Judge of this Court vide its order dated 10.10.2022, has
admitted these appeals on the same set of substantial questions of law
framed in S.A.(MD) No.589 of 2015 and S.A.(MD) No.590 of 2015.
The Arguments :
15. Of these appeals, S.A.(MD) No.590 of 2015 and S.A.(MD) No.653 of
2022 would be considered in Part B. It may also be stated that if the
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and S.A.(MD) Nos.652 & 653 of 2022
substantial questions as framed are scrutinized, except the last one, the rest
pertain to O.S.105/1999, the suit for declaration of plaintiff‟s title to item 1.
And, they alone will be considered in this part.
A. Arguments for the Appellants
16. For the Appellants in this batch of cases, the learned Advocate General
argued for the Commissioner, H.R. & C.E., the appellant in S.A.(MD) 652
of 2022, and Thiru. AR.L Sundaresan, senior counsel argued for the
appellant in the S.A.(MD) No.589 of 2015. Their submissions are as below:
a) So far as the right claimed in O.S.No.105 of 1999 is concerned, the
plaintiff claims title to 2 items of suit properties but it is covered
under Section 63(c), 63(d) or 63(g) of the H.R. & C.E.Act. In other
words, it implies that the Act has made provisions for deciding the
dispute under Section 63 of the Act, and therefore the dispute raised
by the plaintiff will fall within the 2 nd part of Section 108 of the Act
and hence, O.S.No.105 of 1999 is not maintainable.
b) Alternatively, even if it is considered that the suit falls outside the
purview of Sec.108 of the Act, still the plaintiff lacks locus standi to
maintain the suits. The plaintiff asserts locus standi only based on his
allegation or assertion that he is the 11 th Pulipani Swamigal. This
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implies that since the time of Bogar, each of the Pulipani Swamigal
should have lived for an impossible and inconceivable 433 years. The
plaintiff therefore has not established that which he chose to allege. It
is proof of this fundamental fact that will grant locus standi to
maintain the suits.
c) The plaintiff‟s possession of item 1 property is not denied. But he is
only a temple servant and is in possession of the same in lieu of his
services.
d) Turning to the plaintiff's title to the item 1 suit property, he pivots it
on Ext.A.6, a document purported to have been in the handwriting of
the zamindar of Ayakudi. He introduces himself essentially only as
the manager of Palani Devasthanam. This document can hardly assist
the plaintiff‟s attempt to establish his title to the suit property. Firstly,
the manager of the Devasthanam does not have the authority to give
away any property belonging to it. Secondly, the content of Ext.A.6
shows that the possession of then Pulipani Swamigal over a small
extent of the property alone was recognized, and it has not granted
any heritable right to him.
e) Next, the plaintiff places excessive reliance on the copper plate
inscription, but it has hardly seen the light of the day in the ongoing
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judicial proceedings, except for a brief appearance before the First
Appellate Court. The First Appellate Court was in error in relying on
this document, when it is not made part of the record. If at all the
plaintiff was interested, he should have produced the same under
Order XLI Rule 27 C.P.C. It might be true that the content of the
copper inscription has been published in the publication either of the
plaintiff or the defendant. But it does not go to the advantage of the
plaintiff, especially in a situation where the factum of the existence of
the copper inscription and its genuineness themselves are under
challenge.
f) If these two documents (Ext.A6 and the copper plate inscription) are
eliminated from the line of consideration, there is hardly any material
that can support the plaintiff‟s claim for title. That he may be in
possession of item 1, but ipso facto it will not be adequate to establish
title, for the plaintiff traces his title based on his claim that he is a
lineal descendant of Adhi Pulipani. On the contrary, the defendant
had produced Ext.B31 and Ext.B32, and they are the copies of
Settlement Registers for the years 1886 and 1920 respectively,
wherein item 1 is described as Government poromboke or temple
poromboke. This has to be appreciated in the context of the fact that
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since the turn of the 19th century, the property along with the temple
came under the administrative control of the Board of Revenue and it
then became part of the Madras Presidency. It was during the British
rule the property came to be surveyed. If only the plaintiff had title to
the property, it would have reflected in the Settlement Registers
themselves, but it did not.
g) Notwithstanding the fact that the entire Palani hills, including item 1
property, was classified as temple poromboke, the plaintiff made a
clandestine attempt to survey and sub-divide item 1 property and
achieved it when in 1936 the Tahsildar ordered revenue sub-division
of the property. But this was cancelled by the Sub Collector, and
today in Ext.X1 and X2, this property is shown to fall within the
Town survey field. This apart, the plaintiff had put up some
construction in item 1 and might have produced property tax receipts,
but they per se may be useful to prove possession, which at any rate is
not disputed, but not his alleged title over item 1.
Summing up the arguments, it was submitted that subject to the
contention on the maintainability of the suit when the entire Palani hill is
classified as a temple poromboke, the plaintiff cannot assert title to a
small portion thereof.
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and S.A.(MD) Nos.652 & 653 of 2022
Arguments for the First Respondent / Plaintiff
17. In response Mr.V.Raghavachari, the learned counsel for the plaintiff/first
respondent made the following submissions:
a) So far as the property which is the subject matter of O.S.No.105 of
1999 is concerned, it is a property which is in occupation of the
plaintiff from time immemorial. The continuous possession of the
plaintiff is also admitted by the appellant herein. Plaintiff‟s possession
is traceable to Adhi Pulipani, the first disciple of Siddhar Boghar to
whom the spiritual master had entrusted the maintenance and the
management of the Palani temple, and it devolved hereditarily until
Dalavoy Ramappier made his appearance and replaced Pulipani
Swamigal with brahmin Sivacharya to officiate as the priest of the
Palani temple. This is reflected in the copper plate inscription.
b) The copper plate inscription is recognised and accepted by the temple
in their official publications in Exts. A-3 and A-59, and the appellants
are estopped from challenging its correctness. The admission is the
best piece of evidence unless it is proved to be erroneous. Here there
is hardly any material forthcoming to prove the same is erroneous.
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c) Turning to the non-production of the original copper plate inscription
of Dalavoy Ramappier during trial, it was brought to the first
Appellate Court, and the Court itself compared it with the extract
contained in the official publications of the defendant, in the presence
of both the counsels and found them to be correct. It is now too late
in the day to question the same.
d) This apart the zamindar of Ayakudi who was then in the management
of the temple had recognized the continuous possession of the
plaintiff's predecessor in respect of 200 ft x 140 ft at the foothills of
Palani temple under Ext.A-6, 15.11.1844. Ext.A6 taken along with
the copper plate inscription of Ramappier establish the plaintiff‟s
continuous and uninterrupted possession.
e) The appellants try to portray that the plaintiff is a temple servant
merely and attempts to treat his occupation of item 1 as if it is a
servant-quarters and that he is a licensee. This position contradicts
the fact that the Pulipani Swamigal of the time is entitled to perform
shooting of the arrow event during the navarathri festival, not as a
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servant of the temple, but under the privilege conferred on the
Pulipani Swamigal under the copper plate inscription of Dalavoy
Ramappier. The defendants/appellants too have referred to the
plaintiff as Madathipathi in their own documents. DW1 during the
cross-examination categorically admitted that the suit property is
"Pulipani Swamigal Ashramam". In Ext.B-10 the defendant had
addressed the plaintiff as Pulipani Pathira Swamigal. They establish
that the plaintiff and his predecessors-in-office as the head of the
Pulipani Ashram and are in possession of item 1 as a servant of the
temple. It is demeaning to state the least.
f) The plaintiff exercised acts of ownership when it had the suit property
sub-divided and brought it under Sy. No.862/2. So far as the
argument that the plaintiff‟s predecessor in office had not challenged
the cancellation of the revenue sub-division of item 1 is concerned,
there is no proof that the cancellation of the sub-division was done
after conducting due enquiry. Sy.No.862 is classified as "Hill
Poromboke" and the temple is not having any independent right. This
apart, the revenue records will neither vest nor divest any title.
Reliance was placed on the ratio in Ajit Kaur alias Surjit Kaur Vs
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Darshan Singh (Dead) through Legal Representatives and others
[(2019) 13 SCC 70]. The Palani Municipality also has sent various
communications to the plaintiff's predecessors, recognising their
possession. This is evidence of the recognition of the pre-existing
right of the plaintiff and his ancestors, even long prior to the coming
into force of the H.R.&C.E. Act. To this may be added evidence such
as the house tax receipts and demand notice, besides various suits
filed by the plaintiff against the tenants for eviction such as Ext.A21,
Ext.A40 to Ext.A47.
g) During the cross-examination of DW1, he fairly admitted that the
property in question at the foothills of the temple is not shown in the
property register of the temple. During the cross-examination of
DW4, he admits that during the navarathri festival, the special
privilege of shooting the arrow is given to the plaintiff, an honour
conferred upon the Pulipani Swamigal under the copper plate
inscription of Dalavoy Ramappier. He also has conceded that
Devasthanam never took any steps to recover possession of item 1
from the plaintiff.
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h) The book titled "The Historical Documents of Palani (in Tamil)
written by S.Rasu, has a reference to the history of Pulipani Pathira
Udayar and the copper plate inscription of Dalavoy Ramappier. The
Gazetteer of India, Tamil Nadu State, Madurai District compiled by
W.Francis in the year 1906 (reprinted in 2012 by the Department of
Archaeology and Historical Research, Egmore, Chennai) also speaks
about the temple and the puranic beliefs associated with Palani hills.
After referring to Mackenize Collections, it also records the copper
plate inscription of Dalavoy Ramappier, and how he replaced the
Pulipani Swamigal with Brahmin Sivacharya for performing pooja
and the honours which were conferred on the former. The book titled
'History of Kongu Mandalam' also details the history of the Palani
temple. The Court can rely on all these literatures which provide the
historical background to the cause of action as the same is permissible
under Sec.81 read with Sec.35 of the Evidence Act. Reliance was
placed on the ratio in M. Siddiq Vs Suresh Das [(2020) 1 SCC 1],
Aliyathammuda Beethatheblyyappura Pookoya v. Pattakal
Cheriyakoya [2019 (16) SCC 1], Bala Shankar MahaShanker
Bhattjee Vs Charity Commr., Gujarat State [1995 (Supplement) 1
SCC 485], B.Shambu Kumar Vs M/s.Ragvendra Steels Ltd. [2001
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(4) CTC 399], Eesha Kumar v. Assistant Commissioner, Coimbatore
City Municipal Corporation [2011 (5) CTC 620].
i) The appellants‟ submission against the doctrine of lost grant is
founded on their misconception about the very doctrine. Doctrine of
lost grant is invoked to sustain the legitimacy of long possession
whose origin is unknown by presuming the legitimacy of the origin of
such possession.
j) The substantial questions raised are essentially that involve questions
of facts, and the appellants have not established how the findings of
the first appellate Court are perverse. Regarding the plea that the suit
is barred under Sec.108 read with Sec.63(c),(d) and (g) of the
H.R.&C.E. Act concerned, they are not applicable, since they do not
authorise the authorities to decide any dispute relating to the title
between a mutt and the temple. At any rate dispute regarding title to
the property cannot be decided by a tribunal.
Appellant’s Reply:
18. Replying to the same, it was argued for the appellant that the literatures
which includes the Madurai Gazetteer which the plaintiff has relied on are
not worthy of being considered. Sec. 81 of the Evidence Act only enables
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the court to presume the genuineness of the gazette and not a gazetteer.
There is a world of difference between a gazette and a gazetteer, and Sec. 81
of the Indian Evidence Act does not apply to a gazetteer. This implies, the
plaintiff, if he intends to prove the facts stated therein, may have to prove it
independently.
Discussion & Decision
Preludial Statement:
19.1 The suit is one for declaration of the plaintiff's title based on
immemorial possession, not an unusual lis to visit the civil court in this
country. What however, differentiates this suit and takes it out of the
ordinary is the plaintiff's pleading where he traced his possession to certain
facts hidden partly in history and partly, perhaps in mythology.
19.2 The plaintiff's narrative is made absorbing by an intertwining of a set of
tangible facts that could be proved through evidence, with certain
originating facts whose existence, which a rational mind trained to accept a
fact only on evidence, may struggle to accept. This court, however, needs to
identify the invisible line separating the historical facts and the rest, and to
understand how far the former could be accommodated as evidence, and the
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extent to which it might be allowed the space while appreciating the
evidence.
20.1 A sedulous examination of the plaintiff's pleadings in its deeper layers
enables the segregation of his case into the following parts:
a) The facts which provide the reason or ground as to why and how the
plaintiff and his ancestors came to be in possession of the suit property.
This includes tracing the plaintiff's lineage to Adhi Pulipani, and
necessary appreciation of his association with Bogar. It requires a short
time travel into the past by about 5,000 years, for appreciating the
contextual relevance of certain literatures.
b) The facts which constitute the current physical possession of the suit
property, (item 1 in O.S.105/1999) of the plaintiff and his ancestors
belong to the last millennia.
c) The facts which fix the approximate duration of this possession. Here
this Court will be concerned with the copper plate inscription attributed
to Ramappier, the Dalavoy of Thirumalai Naickar (Dalavoy, also spelt
Dalawai, is a post which is generally understood as a commander of the
army) and Ext.A6, the memorandum of the zaminder of Ayakudi, dated
in 1844.
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20.2 If the quintessence of the line of defence with which the defendants
resist the plaintiff's claim is analysed, it nowhere disputes the plaintiff's
physical possession of the suit property. Nor does it make a statement that
the plaintiff is a recent encroacher or a trespasser. Its principal line of attack
is on the plaintiff's right to be in possession of the suit property as of right,
since according to them item 1 belongs to the Palani temple as per the
original survey and settlement that took place in 1886 and the re-survey and
settlement that took place in 1920. In this process, it has chosen to invest a
sizeable portion of its defence denying the historical reason which the
plaintiff pleads for tracing his possession of the suit property.
21.1 In a civil dispute which this Court is required to decide on the rule of
preponderance of probability, its prime focus will be on the plaintiff's
possession of the suit property, a fact not disputed, and to endeavour to
ascertain his claim of right to be in possession, and to evaluate the evidence
to enter a finding if they are adequate enough to vest title to the suit property
in him.
21.2 Given the nature of the cause for the present action, it may have to be
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stated that even if the plaintiff is not found to be on a surer ground in
establishing the historical reason which he pleads for entering possession (of
the suit property), still the merit of plaintiff's claim for title based on his
immemorial possession of the suit property can be tested by testing it on
known and time-tested principles of jurisprudence. In other words, any
failure of the plaintiff to bring in a direct connect between his right to be in
possession of the suit property and the historical reason which he relies on
for establishing the same need not be construed as consuming the entire
cause of action for the suit. However, if he can establish the other facts,
then the acceptability of these historical facts can serve to provide a backup
force to strengthen the probability of the plaintiff's case.
21.3 Having made this preludial statement, this court is still constrained to
embark on an enquiry of a sizeable portion of the arguments were directed at
it. Indeed, the Court below has also engaged on it, more particularly the trial
court, to which appropriate reference would be made later in this judgement.
On Maintainability of the Suit:
22. Before considering the merit of the rival submissions, this Court is
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required to decide on the maintainability of the suit. According to the
appellants/defendants, the nature of the dispute falls within the ambit of
Sec.63(c), (d) and (g) of the T.N. H.R. & C.E. Act, and hence the dispute
can be decided exclusively only by the Joint Commissioner or the Deputy
Commissioner of H.R. & C.E. and hence the suit is barred under the second
part of Sec.108 of the Act.
23.1 The suit is laid for declaration of title to a piece of property by a mutt
against the temple. Essentially both are religious institutions. The point is
whether this dispute falls within the ambit of Sec.63 of the Act as to invite
the bar under Sec.108 of the Act. Sec.63 reads:
Joint Commissioner or Deputy Commissioner] to decide certain
disputes and matters.—
Subject to the rights of suit or appeal hereinafter provided, the
Joint Commissioner or the Deputy Commissioner, as the case may
be shall have power to inquire into and decide the following
disputes and matters:—
(a) & (b) ----
(c) whether any property or money is a religious endowment;
(d) whether any property or money is a specific endowment;
(e) & (f) ----
(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
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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.
The defendants/appellants make an unconfusing, straightforward statement
as their defence: That the suit property belonged to the temple and that the
plaintiff has been put in possession for the service he has been rendering. If
the plaintiff‟s stands are analysed, his cause of action is a negation of the
above-stated line of defence offered by the defendants, as the former asserts
the right to be in possession based on a title acquired through immemorial
occupancy of the suit property – to be precise for about 5000 years. It could
be easily derived that the plaintiff is in no mood to accept that he is the
servant of the temple and claim independent title in him, in continuation of
the title of his predecessors-in-office.
23.2 On the face of it, the dispute does not fall within Sec. 63(d) and 63(g)
of the Act, for it does not raise any issue as to whether there is a specific
endowment of the suit property, or if the endowment made is partial or not.
Nor does it raise a question whether the suit property is a religious
endowment as to attract Sec.63(c) of the Act. It is a simple suit on the title.
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The equation is immemorial occupancy versus entries in the settlement
registers plus the administrative control of the suit property by the East India
Company and the British earlier to it . Sec.63(c) in essence provides a
remedial forum where the dispute pertains to the character of a property as to
whether it is a religious endowment or not, but not title per se to the said
property.
24.1 Turning to the maintainability of the suit, it should be underscored that
the ouster of civil courts‟ jurisdiction cannot be and should not be readily
inferred. Since the soul of Sec.9 is the maxim ‗ubi just ibi remedium‟, the
jurisdiction conferred on a civil court must be granted optimum elasticity to
accommodate every dispute of a civil nature, unless the bar of jurisdiction is
readily indicated through an express provision, or the exclusion of
jurisdiction is self-evident by necessary implication. Sec.63 has not
authorised the authorities stated therein to decide any intricate dispute of
title. Bar of suits is provided for under Sec.108 of the Act, and it merely
states that a civil court‟s jurisdiction is barred only as regards “matter or
dispute for determining or deciding which provision is made” in the Act,
and no more. As explained earlier, Sec.63(c) does not speak of a dispute on
title to the land, and hence it cannot be decided by the authorities
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constituted under the Act. In Periathambi Goundan v District Revenue
Officer, [AIR1980 Mad 180], a Full Bench of this Court speaking through
Ismail, J (as the learned Chief Justice then was) had the occasion to observe
as under:
“ a suit or proceeding in a civil court may involve the determination of
several matters, some of which may be within the jurisdiction of the
authorities functioning under the Act and some others outside the
jurisdiction. In such a case the suit or proceeding as such cannot fail
unless it is of such a nature that it can be terminated solely on the
determination of the matter falling within the jurisdiction of the
authorities functioning under Act.‖
Consequently, a suit cannot fail unless the determination of the prayers
therein, in its entirety, falls within the exclusive jurisdiction of another
authority. See also: Church of North India Vs Lavajbhai Ratanjibhai
[(2005) 10 SCC 760], Dhulabhai Vs State of M.P [AIR 1969 SC 78],
Vedagiri Lakshmi Narasimha Swami Temple Vs Induru Pattabhiram
Reddi [AIR 1967 SC 781], Thirumalaisami Naicker Vs The Villagers of
Kadambur [(1968)81 LW 342 (DB)], Sri Venkataramanswamy Deity of
Kothur village Vs Vadugammbal [(1974)87 LW 481 (DB)], Sayarakshai
Kattalai and Arthajama kattalai attached to Arulmigu Kayaroganaswamy &
Neelayadakshi Amman Temple Vs R.Radhakrishnan & another [(2001)3
MLJ 73] Swaminathn Vs Subramaniaswamy Deity [(1999)1 MLJ 553].
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24.2. To conclude on this point, this court has least difficulty in holding that
the present suit is maintainable.
Outlining the Court's Approach
25. The stage is now set to consider the rival case on their merits. The
appellants have spent considerable effort for restoring the decree of the trial
court, exactly on the same line of reasoning which the trial court has
entertained to non-suit the plaintiff. Therefore, this Court considers it
appropriate to ascertain the justifiability of the reasoning of the trial court
which in effect will enable this Court to pronounce on the correctness of the
judgement of the first appellate court.
26. The cause of action for the suit is founded on a set of facts, part of which
are as old as the temple and the deity whose origin is lost in the fog cover of
time. The evidence made available is scanty, and is bound to be so. The
plaintiff places reliance on a few bits and pieces of evidence on which he
could lay his hands on, and they are pitted against certain recorded facts
which emerged towards the closing stages of the 19 th century and the early
part of the 20th century. The materials which the defendants rely on have
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emerged about a decade after Sir James Fitzjames Stephen had designed the
launching of the Indian Evidence Act. He had developed the rules on the
burden of proof, according to which the plaintiff's case can reach ashore
with safety, only if his evidence could pass the test of admissibility before
garnering requisite strength to improbabilise the case of the defendant.
Given the setting of the case, it would be a mind boggling achievement for a
plaintiff, relying on the existence of 5,000 years old unrecorded historical
facts to sustain his originating fact and to trace his ancestry through
evidence, and to seek its acceptance through the filters of Sir. Stephens'
creation.
27. The complexity of the facts poses obvious difficulty in proving every
limb of the fact which may provide a complete coherence to the plaintiff's
case. In that sense, this case is a rarity. And, finding a solution is akin to
solving a complex game of Sudoku – with more blank squares and few
disclosed numbers. Still, it is not beyond solution if the right rules are
picked from the Evidence Act for application. Hence, to make an easy
appreciation of the Court‟s approach to the task before it, an outline is
provided:
a) Let it be explained from the most fundamental elements of civil
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litigation. A cause of action for a suit (as well as the defence) rests on
a certain right which law recognizes. It may be founded on a solitary
fact or multiple facts, may be straightforward or layered, and confined
to a specific time or spread over an expanse of time. It depends on
how a litigant attempts to conceive his cause of action or the defence.
It is their prerogative. In the present batch of appeals, the facts are
layered and stretched over a few millennium years.
b) The Court's focus, however, should not be on how a litigant conceives
a right, but on ascertaining if the right as conceived is recognised in
law as to qualify for sustaining the cause of action or defence. Tested
on this plane, the plaintiff here claims a title to the suit property based
on his immemorial possession. In other words, both the right as
pleaded by the plaintiff and the manner of its conceptualisation are
permissible in law.
c) The next aspect is the proof of the facts which a litigant may present.
Contextually, this court is more concerned with the evidence which
the plaintiff relies on for establishing the cause for his action. Here
the facts that he relies on can be divided into (a) those which are
capable of proof through tangible evidence; and (b) those which
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cannot be so proved. Most evidence that the plaintiff presents relate to
his current possession, to be more specific, those which belonged to
the turn of the 19th century and early part of the last century. Exts.A8,
A9, A10, A11, A13, A16, A12, A5, A14, A17, A15, A18, A40, A21,
A42, property tax receipts fall in this category.
d) There is another set of facts, which this court may term as composite
facts of faith and history. If this court were to consider that walking
through the familiar and well-accustomed evidentiary-lane of direct
evidence is the only option, then it is up against a wall. Necessarily
the Court may have to look to other methods for ascertaining the
proof of the composite facts.
e) The composite set of facts on faith and history referred to earlier, can
be further divided into two parts: (a)those facts which are purely
historical; and (b)those which are purely in the realm of faith. In the
case of historical facts there may be bits and pieces of tangible evidence,
whereas in the case of faith, only its existence can be established.
f) In the process of understanding the evidence for appreciating the
correctness of findings on facts (where the Courts below have
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expressed their divergent views), this court encountered a few
situations where the existence of certain facts needs to be inferred
from a set of available evidence, nothing hitherto unknown, that goes
to establish either the historical facts or faith or a combination of both.
This requires a further classification of the historical facts into: (a)
those facts whose existence or non-existence may be inferred based
on any material which the court may choose to rely on and act upon;
and (b) those facts whose existence can only be presumed from
another fact so proved. This court considers it appropriate to term the
second category of the fact falling within (b) as presumptive historical
fact.
g) The bottom line in appreciating the evidence is that the Court cannot
compel a litigant to prove that which is impossible for him to prove
through direct evidence. The rule of best evidence readable in
Stephen's document is associated with the capacity of a litigant to
produce such evidence which is capable of being produced, for the
law does not insist on seeking proof of a fact which is beyond the
ability of a party to prove. It is hence, drawing the right inference
from the right material, subject to the condition where both the
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material and the inference it produces earn acceptability within the
scheme of the Evidence Act, becomes critical. After all, no court shall
feel helpless to deal with a situation which the suitor presents.
h) To sum it up: It is the litigant's prerogative to decide how a cause for
an action or defence must be conceived, and what evidence which are
within his capacity and ability to produce for sustaining it. In the
context of the case, the plaintiff traces the origin of his right to be in
possession to a period some 5,000 years ago. Most of the facts whose
existence might have been useful to prove their interconnection
covering five millennium years to form a logical sequence had
inevitably been lost in antiquity. And, the thumb rule is that the Court
should not require a litigant to do the impossible – requiring him to
produce such evidence which is beyond his ability to produce. And,
the Court cannot shy away from negotiating the situation either.
i) The situation amply indicates a need for a space-walk in history and
time, dark and void all around, with very few facts to guide. This
Court's duty is to examine if the evidence, though limited and scanty
in covering 5,000 years, is tested on the evidentiary rules and tools
which are best suited for the purpose, produces the most probable
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inference required for ascertaining the conceptualization of the cause
of action for the suit. A Star Trek moment.
j) The challenge is more, when the litigants or the courts below, in the
estimate of this Court, have missed a couple of rules or tools which
the Evidence Act provides. A suitor is only required to plead his facts
in aid of the remedy he seeks, and it is the Constitutional obligation of
this Court to ensure that he is not denied a remedy if it is permissible
in law, owing to the litigant's failure to find the right principle in
law. To apply the right principle of law on a set of facts is the job of
the Court after all.
What is outlined herein above has been let to influence this Court as it
engages to discuss the few critical aspects of this case.
Understanding the Plaintiff's evidence:
28.1 It is convenient to commence from here. The evidence on record can
now be classified under two distinct time zones: (a) From the early origin
and up to Ext.A-6; and (b) Evidence dated about the last quarter of the 19 th
century and thereafter.
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28.2 The first part in (a) above deals with early origin, Ramappier's copper
plate inscription upto Ext.A6. Since the original handwritten document of
zamindar of Ayakudi in Ext.A6, is available on record, the immediate focus
will be on the evidence up to Ext.A6, and its effect vis-a-vis the cause of
action.
29. For proving the same the plaintiff relies on: Exts.A3, Ext.A4, Ext.A59,
Ext.A86, and, Ext.A87 and A.88, besides the following literatures: (a)
Mackenzie Manuscripts1 (b) The Government Gazeteer, Madurai District2
(c) Kongu Mandala Varalarukal3 in Tamil which is Palani Varalaatru
Aavanangal4. The passages relevant are extracted below. Where the text is
in vernacular, an English translation is provided.
1 A University of Madras Publication, 1972, (Summaries of the Historical Manuscripts in the Mackenzie Collection)
VOLUME-I (Tamil and Malayalam)
2 1906 publication of the Department of Archives and Historical Research of the Government of Tamil Nadu, reprinted
in 2012.
3 Publication of a collection of palm-leaf inscriptions by the Government Oriental Manuscripts Library and Research
Institute.
4 By Mr.Rasu, formerly a Faculty of the Department of Archaeology, Tamil University, Tanjore, a publication of
palm leaf inscriptions in the custody of the Government Archives.
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TABLE I
(Extracts from Exts: A3, A4, A59, A86 to A88)
Details of Page Information
Literature No.
1 Ext.A3 6-7 Sthala Puranam. Mythological facts.
Devasthanam
Publication in
English 8 a) ― Legendary accounts apart, we have quite a few
(1970) pieces of recorded material pertaining to the origin of this
temple. One of the principal sources of information has
been a MS in the Mckenzie's collection which is
confirmed by local accounts. It is believed that the
consecration of the deity as Sri Dandayuthapaniswamy in
the sanctum sanctorum of the temple was done by Siddha
Bogar. It is likely that he had made his ashram on this
hill and had attended to the needs of his devotees given
them medical help as well as spiritual comfort. It is also
believed that the image of the Lord in the sanctum
sanctorum of the temple was made with an amalgam of
Navapashanam, a compound of nine poisonous medicines
under the expert guidance of Bogar.‖
b) ―...... ...... It was with this stone image with unique
chemical composition and miraculous curative properties
that Sidha Bogar seems to have found a place of worship
on the top of the Hill. Formal worship at this shrine is
said to have been started by a Kannada Udayar, a
descendent of Pulipani, a disciple of Siddha Bogar.”
9-10 a) ―Pulipani's descendants are said to have been the
officiating priests at the principal shrine from the time of
its inception. With the advent of the Nayak rulers of
Madurai who made many striking improvements over
what had been done to the temple by the Cheras, there
were some changes in respect of the priesthood. When,
Ramappayyan, a General of Tirumalai Naik worshipped
at this temple, he introduced the Adi-Saiva Sivacharyas as
recognized official priests. At the same time he conferred
on the older class of priests certain other rights and
privileges such as the general superintendence of the
temple, receiving certain amounts of money as annual
emoluments and shooting off the arrow symbolising the
destruction of Idumbasura by Muruga at the Dasra
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Details of Page Information
Literature No.
festival. Some of these time-honoured rights and
privileges are retained by the successors to the Pulippani
Matam even today and it is they who have the sanction to
officiate as priests at the Bogar Samadhi.‖
b) ―The sanctum of Siddha Bogar is now a small shrine in
the south-western corner of the inner quadrangle of the
Hill Temple. We find in this small shrine Nava Durga, in
the guise of Sri Bhuvaneshwari and a Marakatha Linga.
One is shown an underground passage just below the
sanctum through which, it is said, Siddha Bogar went in
and never came out. It is also said that this passage
connects the Bogar Samadhi and the garbagriha of Lord
Dandayuthapaniswamy. A successor of Pulippani in the
person of Sri-la-Sri Boganatha Pulippani Patra Udayar is
believed to be doing the Puja service at this shrine and to
be presiding over the madam bearing his name in the Giri
Veedhi”.
2 Ext.A4 9, 10 Sivalingatheva Udayar from Kannada Desam meditated
Plaintiff towards Bogar, and Bogar directed him to do pooja as
Ashram had decided to go into deep meditation.
Publication
(Tamil) Also, how Sivalingatheva Udayar came to be known as
Pulipani Pathira Udayar (as he came on the back of a
tiger ('Puli' in Tamil) with a vessel with water for
abhishekam
3 Ext.A59 4 (a) Sthala-puranam – Mythological facts.
(English)
Devasthanam 8 - 10 (b) “The consecration of the deity as Sri Dhandayudapani
Publication in the central shrine on the hill is ascribed to the great
Siddha Bogar. Possibly the hill was his ashrama at the
time from where-in he cared for the spiritual and medical
needs of his circle of votaries. The constituent image is
said to be an amalgam of (nava-pashana) nine minerals.
..... A Kannada udayar descendant of Pulipani, a disciple
of the Siddha Bogar is stated to have first set up the
worship at this small shrine on the Siva-giri; and that he
was conducting it for long time."
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Details of Page Information
Literature No.
(c) "The temple has been improved upon gradually to the
present proportions by succeeding Madura nayak rulers
and local chieftains. Pulipani's descendants were the
priests at the principal shrine from remote times, and,
when Thirumalai Nayak's (A.C. 1623-59) general
Ramappayyan visited the temple, he performed an ashta-
bandana Kumbabisheka for the hill-temple and
introduced the adi-siava Sivachayyas to officiate in pooja
services. He also seems to have bestowed on the former
priests certain duties of superintendence, the right to
receive certain annual emoluments, and at the Dasara
festival to shoot off the arrow which symbolises Muruga's
vanquishing the idumbasura. The present successors to
the Pulipani mutt as such have this privilege as well to
officiate at the sanctum of Bogar."
(d) "The siddha Bogar's sanctum is now a small shrine
on the corner of the south-western corridor of the inner
quadrangle of the temple. Nava-Durga, the goddess of
Sri Bhuvaneswari is in worship here, also with the
marakatha Linga. An under ground passage below the
sanctum is pointed to as the place where the sage entered
and never appeared again. The passage is also spoken of
as leading to the garbha-griha of Sri
Dhandayudhapaniswami. Sri-la-sri Boganatha Pulipani
Patra Udayar Swami said to be a successor of sage
Pulipani is doing service of Pooja at this shrine. He also
presides over a mutt of the name at the foot of the hill."
41 Reproduction if Ramappier's copper plate inscription.
4 Ext.A86, A87 10 Bogar made nava-pashanam deity of Dhandayudapani
(Tamil)
Devasthanam
Publication
5 Ext.A88 20 Bogar lived before 3000 B.C. He is a rare mathematical
(English) prodigy and an expert in the field of medicine. He
created the amalgam of nine chemicals (nava-
Devasthanam bhashanam) and installed the deity atop the hill and did
Publication daily services.
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TABLE II
(Mackenzie's Manuscripts§)
§ Colonel Colin Mackenzie is a distinguished member of this brilliant galaxy of Indologists on
whom the unknown Orient exercised a strange fascination. A highlander by birth, he came to
India in 1783 at the mature age of thirty. The remainder of his life, since then, he spent in India,
Ceylon and Java, without even once crossing the seas to revisit the land of his birth and
breeding, because of his unbroken1799 to 1806 and his survey of the Deccan earned him the
coveted position of the Surveyor-General of Madras in 1810 and subsequently the most
memorable position of the first Surveyor-General of India in 1815. .. Mackenzie's fascination for
the 'Orient' coupled with his special interest in India and his quest for knowledge may have
tempted Lord Napier to employ him as his assistant ...commended highly the statistical
researches of Mackenzie and also "his super added enquiries into the history of the religion and
the antiquities of the country, objects pointed out indeed in our general instructions to India, but
to which, if he had not been prompted by his own public spirit, his other fatiguing avocations
might have been pleaded as an excuse for not attending. Real history and chronology have
hitherto been desiderata in the literature of India, and from the genius of the people and their
past government, as well as the little success of the enquiries hitherto made by Europeans, there
has been a disposition to believe that the Hindus possess few authentic records. Lieutenant-
Colonel Mackenzie has certainly taken the most effectual way, tho' one of excessive labour, to explore any
evidence which may yet exist of remote eras and events, by recurring to remaining monuments, inscriptions
and grants preserved either on metals or on paper, and his success in this way is far beyond what
could have been expected. ....Whether the grants, which are generally of lands to Brahmins, are
all authentic . .or whether the whole of the materials shall be found to form a connected series of
historical facts respecting a country which seems to have been always subject to commotions and
changes, and unfavourable to the preservation of political records, still it must be allowed that
this effort promises the fairest of any which has yet been made to bring from obscurity any
scattered fragments which exist of true history, and undoubtedly encourages the expectation of
obtaining at length both considerable insight into the state of the country and its governments in
more modern periods and some satisfactory indications of its original institutions and earlier
revolutions." The Highlands too paid him a tribute by inscribing a memorial found near his sister's
tombstone probably dictated by sisterly affection and admiration. It refers in glowing sentiments
to his "indefatigable researches into the ancient history, literature and antiquities of India,
through which he had "furnished to the world a mass of valuable information far surpassing the
efforts of human industry". Colonel Colin Mackenzie achieved unique fame because he was
primarily a man of action with a wide outlook. Though by birth a highlander, by breeding a
European and by vocation an instrument of British Imperialism in India, he was a universal man.
His vision was never clouded by prejudice and narrow sentiments and he understood human
relationship as a delicate and sensitive flower, not to be crushed by fanatical zest.
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MANUSCRIPT No.2
Puranic account of the Palani hill. A Pulippanipatra
Odaiyar built an ashrama and consecrated
Section 4 Bhuvanesvari nava (vana) durga, a cakra and a meru of
43 konas and other objects of worship on the foot-stool of
GENEALOGICAL ACCOUNT the Simhasana of Bogar. At his bidding wolf that ate his
OF PARISPUTRA sheep is said to have rolled down the slope of the hill as
(PANIPATRA) ODAIYAR, an expiation; hence the name Nayuruttiparai. Then
SUPERINTENDENT OF Panipatra Odaiyar seeking his Mudaliyar disciple fit
PALANIMALAI, to be a spiritual teacher asked him to take a wife, and
DANDAYUDHASVAMI build a matha and after giving his blessings that he
KOYIL IN PALANI and his lineal descendants should continue to be
teachers with the title Lokaguru Nayinar. Lokaguru
WILSON P.417, III-4. Nayinar Pulippanipatra Odaiyar entered into the cave for
TAYLOR VOL.III, P.354. samadhi. The manuscript then traces the history of the
SHELF No. 17-5-30 line.
TELUGU SUMMARY15-3-1
Later on, during the time of Arumuka Pulippanipatra
Odaiyar, there came from Uttiradi (north) 163 families of
the Veda (Cencu) community led by the Kosala Cinnoba
Nayaka and settled at the foot of the Varahagiri after Kali
48. Cinnoba Nayaka became a disciple of
Pulippanipatra Odaiyar and a devotee of the God of
Palani, and founded the Palani palayapattu. One Vairavi
who tried to rob the deity of its divinity was murdered by
the Nayaka. At the instance of his Acarya
Ramappayyan, who visited the temple, he appointed
four Bhattars (Brahmin priests) in the place of
Pandarams who were till then officiating as priests,
performed astabandhanam and effected other changes
in the worship and administration of the temple.
Details of the celebration of the Navaratri festival in the
Palani hill and of the installation of Acaryas in the
hierarchy of Panipatra Odaiyar are given. Sixteen
Acaryas are mentioned from Arumukha
Pulippanipatra Odaiyar to Harikrsna Pulippanipatra
Odaiyar who took sacrament as Acarya on 28th
Arpisi, Srimukha and wrote the kaifiyat on the 4th
April, 1816, corresponding to 18th Cittirai, Dhatu. All
of them ruled over the matha in succession during the
period of the polegars. When worship in the temple
was done by Pandara priests, there was only one
matha namely, that of Pulippanipatra Odaiyar. The
Palliyyar matha and Paccakandayyar matha were also
established when Palani came under the rule of Polegars.
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TABLE III
(Gazetteers of India - Madurai District)
Page Contents
305 Sthala Puranam
306 “MS in the Mackenzie collection, which is confirmed by local
accounts, states that a Canarese non-Brahman Udaiyar first set up a
small shrine on Sivagiri, and that for some time he conducted
worship in it. Eventually, in the time of Tirumala Nayakkan, he
was induced by that ruler's general Ramappayya, who visited this
town, to hand over to the brahmans the actual performance of the
puja, and was given in return certain duties of superintendence and
a right to receive certain annual presents and to shoot off, at the
Dasara festival, the arrow which symbolises Subrahmanya's victory
over Idumban. His descendants have ever since performed this
rite. Many of them are buried at the foot of the steps leading up
to the hill. The present heir of the family, Bhoganatha Pulipani
Patra Udayar, is a minor.”
307 Reference to Mackenzie MSS
TABLE IV
(Palani Varalatru Aavanangal (in Tamil)
OR
(Historical Documents of Palani)
Page No. Nature of Note of Original version Note on Translated
Date / Year document and version
source
Page 47 & 48 Gift of income Kandaswamy Arasi from
1632 A.D. from seven villages Palani has written this
for performing (Charitable)gift pattaiyam
puja, festival etc. and gave it to Shree
to Palani temple by Pulipani Paathira
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Velayudha Swamy, with a direction
Chinnobha that this Charity should be
Naicker. performed without break
and should continue till
the moon, grass and earth,
stone and Kaveri ceases
to exist.
Following the order, if the
persons have performed
any help would get the
benefits from the pooja of
lord Shiva on the shores
of Ganga, Kasi. Anyone
who doesn‟t comply
would be subjected to the
disgrace of killing a holy
cow.
Page 49 at 53 in the presence of
Chinnoba Nayakkar,
Velatharaja Pandidhar,
Palaniyappa Nambiyar,
Aram Valartha Nambiyar,
Pulipani
Paathiravudaiyar...
before Balasubramaniya
Swamy sannathi...
(Around
January 15,
1766)
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Page 63/ Veeramudiyalar's
dedication to the
construction of a madam
Now stated to be in Palani. In presence of
Chinnoba Nayakkar,
available at
Thavarasa Pandidhar,
Museum run by
Kailasa Nambiyar,
Tamil Nadu Govt.
Kandipattar Nambiyar,
Archaeological
Nallakurukal,
Dept. at
Paanipathira Udaiyar
Ramalingavilasam
Periyavirumai Annaiillai,
Palace,
Palani Gounder, Muthu
Ramanathapuram)
Gounder... made the
copper plate inscription.
Page 76 & 77 sale deed in palm leaf
executed in the presence
07.01.1620
of Palani Chinoba
(Palm leaf Nayakkar, Paani Paathira
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inscription stated Udaiyar, Saravana
to be available in Kurukkul, and
the collection of Palaniyappa Nambiyar.
Melapannaiyur Nattu kannakku Saravanai
Rajendran) Kanni Pillai.
Scribe: Nattu kannakku
Saravanai Kanni Pillai
Page 81
Reproduced in para 55.1
below.
1623 – 1659
Time of the
incscription
as given does
not reconcile
Page 85 & 86 Dedication to Palani
temple. Pattayam handed
over to Pulipaani
Paathiraswamiyar to
continue the charity.
Time does not
reconcile
Page 87 This context consists of
Bogar‟s Student Pulipaani
Doct.
Paathira Udaiyar‟s
No.T.3160
History.
available at
Government Bogar worshipped
Oriental Thandaayuthapaani.
Manuscripts (28.04.1816) Kannadiya Udaiyar
Library, copied by Nittal became his disciple. As
Chennai Narayana Iyer from devotees raised, Bogar
the palm leaf required the Kannadiya
inscription of Udaiyar to perform pooja
Arikrishna and retired to a cave.
Pulipani Pathira
Udayar As he came atop a tiger's
back carrying the water
from the Shanmuga River
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for pooja, he came to be
called “Pulipaani Paathira
Udaiyar”
A certain Nayinaaththai
Mudaliyar became the
disciple of Pulipani
Pathira Udayar. He came
to be called Nayinaththai
Pandarathaar. .. and later
was called Nainar
Pandarathar Pulipani
athira Udayar. His
descendants also came to
be known by this name.
.During the time of
Dalavoy Ramappiyan of
Madurai, five Sivacharya
were appointed.
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Page 98 As he performed the
pooja by gathering all the
1816, April
By Nittala water while sitting on top
Narayana Iyer. One of a tiger, he got the name
“Pulipaani Paathira
of the documents
of Mackenzie Udaiyar”
Coillections
..... Pulipaani Paathiner
was a rishi thapasi. He
performed the pooja to
God by climbing on top
of the mountain gathering
all the water while sitting
on top of a tiger. In the
Durga Cave, the pooja
was performed for Linga
and Yanthram for 9 days,
and on Vijayadhasami
Paanipaathirar on the
account of the order, took
the Bow and Arrow and
gave it to Thavarasa
Pandidhar and thus by
saying the mantra, the
Bow and Arrow 'paari
vettai' festival is
conducted.
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source
Page 120 Paani Paathira Udaiyar
along with paalaiyakkarar
Time of the
residing at Palani,
copper
The District Judge, Chinnopa Nayakar, Palani
inscription
Madurai handed Nambiyar, Kumarasamy
does not
over the copper Nambiyar, Paani Paathira
reconcile but
plate inscription to Udaiyar, Saravanai
states that it
ASI (No.15, 1911) Kumaru Pillai,
was a Madam
Kandhasamy Pillai,
formed as per
Palani Kavundan,
the copper
Thiruvavinang Kudi
plate
Pulavan, Thirukaivel
inscription
Natuvan, Sokka Natuvan
made during
together signed this
the reign of
copper plate.
Thirumalai
Naicker.
172 & 175 Witnesses : Chinnoppa
Naicker, Naina
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Pandaratthar, Paani
Pathira Udayar and others
This copper plate
is available in the
Metropolitan
Museum situated
in New York City,
America.
Dedication to
Afternoon pooja at
Palani temple
Page 223 & A long time ago,
224 Pantinamoodaiyor who
gave asylum, to 22
community people from 7
(1727) temple places, Chinnopa
Naikar from Palani,
Paanipaathra Udaiyar,
and other Sthanigal in
front of Parikala was
ordered to be settled the
temple charity pattaiyam
in favour Kulanthaivellu
Pandaaram, son of
Nagappaa Pandaram.
Page 259 & He worshipped Pullipaani
260 sage and Phoganadhar
priest‟s place. Pulipaani
An article by T.A. sage worshipped the
throne, emerald Linga,
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(1923) Muthusamy Konar, Bhuvaneshvari,
a Tamil Scholar Navadhurgai in
(1858 - 1944). Phoganadhar place. The
Published in the Brahmins follow the way
magazine 'Kongu of the Pulipaani for
Mandalam' in worship practices.
1953.
The Brahmins won't
accept the food blessings
if you give it. Thus 1 guru
appointed 4 Nambiyars
for the said duty. During
Navaratri the place where
the Durga Goddess
resides, the pooja will be
performed and on the
10th day bow and arrow
will be placed on the
throne along with other
awards and the bow and
arrow competition will be
conducted while sitting
on the elephant. The
Brahmins started to
worship the Pulipaani
God in this temple.
Thalavai Ramappaiyyar
was a hero who was
appointed as a leader for a
period of A.D. 1623 to
1659 in Madurai Shree
Thirumalai
Aiyyanaadukaaru‟s place.
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TABLE V
(Kongu mandala Varalarukal) (Tamil)
It reproduces the palm leaf inscription dated 22.04.1816 of Nittala Narayana
Iyer at. Page 98 of “Palani Varalatru Avanangal” in Table IV above.
Delayering the Historical Facts of the Plaintiff's case:
30. This enquiry will now commence with the delayering of the historical
facts which the plaintiff relies on:
a) The early origin, the sthala purana of Palani hills as could be
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gathered from the literature above is more mythological. According
to this, rishi Agastya, directed Idumban, an asura, to lift the Sivagiri
hills (which is now known by the name Palani hills) along with
Idumban-malai or hills and to take it to Pothigai (now in Tenaksi
District), and that while Idumban could lift the Idumban hills, he
could not lift the Sivagiri hills. Later, he discovered that the mountain
could not be removed because Balasubramanya was there in the hills.
This puranic history says that Lord Subramanya, when as a child, was
upset with his parents - Lord Shiva and Goddess Parvathi in sharing a
fruit ('pazham' in Tamil), and chose to stay in the Sivagiri Hills, This
part of the mythological narrative stricto senso may not be relevant in
the context of the case. This Court, however, hastens to add that this
belief is deeply ingrained in the social consciousness, and for reasons
to be stated herein below, this court cannot reject wholesomely either.
b) Next in the chain of early facts is that which is found in Ext.A4. It
lists those who had worshipped Dhandayudhapani. It starts in Ktreta
Yug, and moves to Kali yug and lists 12 Pulkipani as having
worshipped the deity from the year 205 of Kali Yug. The trial court
has delved deep into this and concluded that if this statement were to
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be true, then each of these Pulkipani Swamigal should have lived for
443 years on an average, and doubted the plaintiff's claim of lineage
to them due to its biological impossibility.
Bogar, Adhipulipani and Palani hills – Fact or Fiction?
31.1 The curtain raises. Time was about 3000 B.C., some five thousand
years from now, when Bogar and Adhi Pulipani, had walked on this planet.
Still, none has seen them. Neither has anyone seen Bogar making his nava-
paashana deity of Dhandayudapani and consecrating it, nor has Adhi
Pulipani serving him as his disciple. No Chinese traveller had visited then
to write about them in his travelogue. And, little would they in their life as
an ascetic – as a Siddha and disciple, have contemplated that five
millennium years later, there would arise a day in the history of the world
when a certain entity, now known by the name the Hindu Religious and
Charitable Endowment Department, would be guarding the affairs of the
nava-paashana image of Dhandayudapaniswami that the former had made
and installed at the Palani hill, and that there might arise a litigation such as
the one now before this court, where certain aspects of their life and
existence might be litigated, which the law of the day might insist in
proving. Their quest was not worldly, earthly or secular, and hence they left
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no records of their life and existence and their purposes, to be used for
proving them before a court of law some 5,000 years later. If only these
Siddha gurus were distracted into contemplating the possibility of this
litigation, they might have possibly recorded it for the benefit of the
posterity, and more particularly for the benefit of the Court, and left them
safe beneath the layers of 5000 years old rocks and soil, for some
archaeologists to arrive in future to dig it up and discover. In that sense,
Ram Janambhoomi case, despite its own complications, had an advantage:
There is at least a report of the ASI indicating the existence of a temple at
the disputed site. But nothing of that sort here.
31.2 But they lived; they existed; and today they continue to live and exist in
the human consciousness as an aspect of social, religious and spiritual faith,
and that will be seen shortly. Until then the existence of the faith in their
existence may be presumed.
32. Faith ordinarily opts to roam beyond the reach of any rational enquiry
which constantly seek proof of its truth or correctness, and if it assumes the
character of a religious faith, it essentially stays beyond any rational
scrutiny. It can only be accepted if one does not choose to deny it, and
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hence faith always seeks its acceptance for its sustainability. The
Constitution indeed, acknowledges its acceptance of every religious faith
through Article 25, when it avows to protect it as an aspect of the
fundamental right to conscience. Unlike Article 14, the fundamental right
to faith and/or conscience under Article 25 does not require a citizen or a
group of citizens who hold a certain faith to support it with any justification
in reason for holding it. That Jesus was born to the virgin Mary, and that he
was resurrected after his crucifixion are biological impossibilities to a
rational mind, but if the belief in his immaculate conception is disturbed,
then Christianity will be devoid of any reason for its existence. It is this
belief, no matter whether it is rooted in reason, or founded on pure
irrationality, the Constitution protects as a facet of fundamental right to
conscience. The Constitution has never ceased to amaze its seekers with its
ability to blend and balance reason with its opposite. Where a religious faith
has earned the acceptability of the Constitution, it no longer can be
dismissed as a mythological story in the folklore of the country.
33.1 Before taking forward this discussion, this court intends to steer clear
of one aspect: In the beginning of the discussion this Court did indicate that
the proof of the cause of action for the suit does not depend on the proof of
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the faith and that it may chiefly have a corroborative force. But why a
discussion on it should be undertaken?
33.2 The necessity to delve into it has arisen since the trial court was
appeared to have been absorbed and consumed by the historical narrative of
the plaintiff's ancestry as well as the reason for his possession of the suit
property, and had engaged in a meticulous evaluation of the evidence to
seek proof of the plaintiff's case beyond reasonable doubt, when ascertaining
the probable existence of a fact is adequate in law. It may have to be stated
that it is precisely here that the trial Court appears to have lost its way. And,
in the process, it has also embarked to enter an ancillary finding that Adhi
Pulipani was a mere priest or an archaka who performed pooja to
Dhandayudapani swamy of Palani; and because he was a priest, even if the
plaintiff is a lineal descendant of Adhi Pulipani, still he cannot claim
prescriptive title to the suit property by adverse possession, on the principle
that a priest cannot claim adverse possession against the deity. (These
aspects, as to be expected, have engaged the first appellate court as well,
where the Court was seen trying to steer clear of some of the findings of the
trial court. However, it may have to be stated that the first appellate could
have articulated its views with greater clarity).
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Faith As an Evidentiary Fact:
34. Reverting to the discussion on faith, can faith, though an aspect of the
fundamental right, be accepted as a guiding evidence in a civil litigation?
When faith forms an ingredient of the cause of action or defence in a suit,
unless it is receivable as an evidence by conforming to some rule of
relevancy and admissibility as provided in the Evidence Act, the Courts in
this country will struggle to accommodate it and act on it. In other words,
what may appear to be the most obvious to the society may still have to be
proved before a Court of law.
35.1 For a faith to be accepted by the Court, it may have to be a fact within
Sec. 3 of the Evidence Act. The definition of a fact under Sec.3 includes
'any mental condition of which a person is conscious.' Faith is a state of
mental condition within the human consciousness. It thus qualifies to be
considered as a fact for being treated as a piece of evidence. And, since faith
as an evidentiary fact is a Constitutionally protected fundamental right under
Article 25, it only requires to be accepted, where Sir Stephen may have to
take a back seat to let the framers of the Constitution to lead the way.
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35.2 Accordingly, once the existence of a faith is established, then the truth
of the facts which form the soul of the faith cannot be questioned before the
Court. It must, however, be added that while faith as a fact can be an
evidence, its evidentiary value still depends on the facts that constitute the
cause of action or defence in a litigation.
Proof of faith as a fact – Sec.57 of the Evidence Act:
36. Faith as a fact still needs to be proved. And, the existence of Bogar and
his siddhic powers, and he making the navapashana deity of
Dhandayudapani, and his disciple Adhipulipani today lives and exists in
human consciousness essentially as an aspect of faith. Otherwise, why
should even the Devasthanam publish this fact in its publications? And, the
evidence made available are from the literatures, both exhibited in the case,
as well as those listed in paragraph 29. How far can they be acted upon as
proof of existence of faith?
37. Sec.57 of the Evidence Act enables the Court to take judicial notice of
certain facts, which inter alia includes facts of history and further enables
the court to resort “for its aid to appropriate books or documents of
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reference, ” in matters inter alia of public history. In M. Siddiq Vs Suresh
Das, [the Ram Janambhoomi case, (2020)1 SCC 1], the Supreme Court
had an occasion to consider the relevancy of historical literature for proving
historical facts. It held (from page 605) :
―859. Section 57 of the Evidence Act, of 1872 elucidates facts of
which judicial notice must be taken by the court. After delineating 13
categories of fact of which judicial notice may be taken, it stipulates
that ―in all these cases, and also on all matters of public history,
literature, science and arts, the court may resort to appropriate
books or documents for reference‖. The above provision enables the
court to resort ―for its aid‖ to books and reference documents inter
alia on matters of public history.
860. While extensive reliance has been placed on the gazetteers by
the counsel representing the plaintiffs in Suit No. 5 and by other
counsel appearing for the Hindu parties, it is necessary to read them
in the context of the principles of law which govern the reliance on
gazetteers.
861. Section 81 of the Evidence Act, of 1872 requires the court to
―presume the genuineness of every document purporting to be…any
Official Gazette". Section 81 raises a presumption of the
genuineness of the document and not of its contents. When the court
has to form an opinion on the existence of a fact of a public nature,
Section 37 of the Evidence Act indicates that any statement of it in a
Government Gazette is a relevant fact. While gazetteers have been
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noticed in several decisions of this Court, it is equally important to
note that the reliance placed on them is more in the nature of
corroborative material.
862. In Muttu Ramalinga Setupati Vs Perianayagum Pillai [Muttu
Ramalinga Setupati v Perianayagum Pillai, 1874 SCC OnLine PC 8 :
(1873-74) 1 IA 209], the Privy Council dealt with an objection to the
judgment of the High Court on the ground that excessive weight had
been given to the reports of Collectors. In that context, the Privy
Council held : (SCC OnLine PC)
―Their Lordships think it must be conceded that when these
reports express opinions on the private rights of parties,
such opinions are not to be regarded as having judicial
authority or force. But being the reports of public officers
made in the course of duty, and under statutable authority,
they are entitled to great consideration so far as they
supply information of official proceedings and historical
facts, and also insofar as they are relevant to explain the
conduct and acts of the parties in relation to them, and the
proceedings of the Government founded upon them.‖
(emphasis supplied)
The Privy Council cautioned against the use of the report of the
Collector when it opined on matters relating to private rights. But as
records of official proceedings or historical facts, and to explain the
conduct of parties in relation to them, they would provide useful
material.
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863. In Ghulam Rasul Khan Vs Secy. of State for India in Council
[Ghulam Rasul Khan v Secy. of State for India in Council, 1925 SCC
OnLine PC 12 : (1924-25) 52 IA 201] , the Privy Council held : (SCC
OnLine PC)
―…statements in public documents are receivable to prove the facts
stated on the general grounds that they were made by the authorised
agents of the public in the course of official duty and respecting facts
which were of public interest or required to be recorded for the benefit
of the community : Taylor's Law of Evidence, 10th Edn., S. 1591). In
many cases, indeed, in nearly all cases, after a lapse of years, it
would be impossible to give evidence that the statements contained in
such documents were in fact ture, and it is for this reason that such
an exception is made to the rule of hearsay evidence.‖ (emphasis
supplied)
864. In Sukhdev Singh v. Maharaja Bahadur of Gidhaur [Sukhdev
Singh v Maharaja Bahadur of Gidhaur, 1951 SCC 408 : 1951 SCR
534 : AIR 1951 SC 288] , this Court explored the nature of a
zamindari and examined the District Gazetteer in that context. The
Court observed : (AIR p. 291, para 10)
―10. … The statement in the Gazetteer is not necessarily
conclusive, but the Gazetteer is an official document of
some value, as it is compiled by experienced officials with
great care after obtaining the facts from official records.
As Dawson Miller, C.J. has pointed out in the Fulbati case
[Fulbati Kumari v Maheshvari Prasad Singh, 1923 SCC
OnLine Pat 271 : AIR 1923 Pat 453] there are a few
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inaccuracies in the latter part of the statement quoted
above, but so far as the earlier part of it is concerned, it
seems to derive considerable support from the documents
to which reference is made.‖
In the above extract, the Court carefully calibrated its reliance on the
gazetteer, noting that it was not ―necessarily conclusive‖, but of
―some value‖. The portion, which was relied upon by the Court, as it
noted, derived considerable support from documents and was hence
grounded in them. The rest was not relied upon. The Court
independently assessed its corroborative value. It rejected one part
and the part which it accepted was found to derive support from
other documentary material. In other words, the contents of the
gazetteer, even insofar as they were acceptable, were corroborative
865. In Srinivas Ramanuj Das Vs Surjanarayan Das [Srinivas
Ramanuj Das v Surjanarayan Das, 1966 Supp SCR 436: AIR 1967
SC 256], RaghubarDayal, J. while dealing with the contents of
O'Malley's Puri Gazetteer of 1908, which had elucidated the history
of a Math observed : (AIR p. 263, para 26)
―26. It is urged for the appellant that what is stated in the
Gazetteer cannot be treated as evidence. These statements
in the Gazetteer are not relied on as evidence of title but
as providing historical material and the practice followed
by the Math and its head. The Gazetteer can be consulted
on matters on public history.‖
The above observations indicate that the statements in the gazetteer
were not relied on as evidence of title but as providing a historical
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background including on matters relating to the practice followed
by the Math. A clear distinction must be drawn between relying on
a gazetteer to source a claim of title (which is impermissible) and
as reference material on a matter of public history (which the court
may consult to an appropriate extent with due circumspection).
866. In Vimla Bai Vs Hiralal Gupta [Vimla Bai v Hiralal Gupta,
(1990) 2 SCC 22], the issue was whether a female Bandhu was
entitled to succeed to the estate of the male holder through her
mother's side within five degrees of the male holder. On the issue of
the inam register, this Court observed that it had ―great
evidentiary value‖ but its entries had to be considered in the
context of other evidence on the record. On the evidentiary value of
an Official Gazette, the two-judge Bench of this Court dealt with
the provisions of Section 37 and Section 57(13) of the Evidence
Act, 1872 in the context of migration and observed : (SCC pp. 27-
28, paras 4-5)
―4. …Thus, it is clear that migration cannot be presumed
but it must be established by adduction of evidence. The
question then arises is whether the recital in Indore State
Gazette relied on, at the appellate stage, can form the
sole base to establish that the plaintiff's family were the
migrants from Mathura in U.P. Section 37 of the
Evidence Act, 1872 postulates that any statement made
in a government gazette of a public nature is a relevant
fact. Section 57(13) declares that on all matters of public
history, the court may resort for its aid to appropriate
books or documents of reference, and Section 81 draws a
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presumption as to the genuineness of gazettes coming
from proper custody. Phipson on Evidence, the Common
Law Library (13th Edn.) at p. 510 Para 25.07 stated that
the government gazettes … are admissible (and
sometimes conclusive) evidence of the public, but not of
the private matters contained therein. …
5. The statement of fact contained in the Official
Gazette made in the course of the discharge of the
official duties on private affairs or historical facts in
some cases is best evidence of facts stated therein and
is entitled to due consideration but should not be
treated as conclusive in respect of matters requiring
judicial adjudication. In an appropriate case where
there is some evidence on record to prove the fact in
issue but it is not sufficient to record a finding thereon,
the statement of facts concerning the management of
private temples, or historical facts of the status of
private persons, etc., found in official gazette may be
relied upon without further proof thereof as a
corroborative evidence. (emphasis supplied)
867. A statement of fact contained in the Official Gazette made in
the course of the discharge of official duties on private affairs or on
historical facts in ―some cases‖ is the best evidence of facts and is
entitled to ―due consideration‖. However, it should not be treated
as conclusive on matters requiring judicial adjudication. Questions
of title raise issues for adjudication. Conflicting claims of title
require judicial adjudication. Statements contained in a text of
history or in a gazetteer cannot conclude the issue of title.
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868. In other words, the gazette was not treated to be independent
evidence of a conclusive nature in itself. The Court has a caution in
the above extract. The contents of the gazetteer may be read in
conjunction with other evidence and circumstances. They may be
taken into consideration but would not be conclusive evidence
869. The historical material which has been relied upon in the
course of the proceedings before the High Court must be weighed in
the context of the salutary principles which emerge from the above
decisions. The Court may have due regard to appropriate books
and reference material on matters of public history. Yet, when it
does so, the Court must be conscious of the fact that the
statements contained in travelogues as indeed in the accounts of
gazetteers reflect opinions on matters which are not amenable to
be tested by cross-examination at this distant point of time.
Consequently, where there is a dispute pertaining to possession and
title amidst a conflict of parties, historical accounts cannot be
regarded as conclusive. The Court must then decide the issue in
dispute on the basis of credible evidentiary material.‖
The above-extracted passage from the Ram Janambhoomi case in the last
preceding paragraph is instructive of the fact that the Court may resort to
appropriate books or documents for aiding it. Relying on Sec.57, the Court
has taken the aid of several interpretive texts. [See: In Annakumaru Pillai v
Muthupayal, ILR 27 Mad 551 where the Division Bench placed reliance on
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“Nelson‘s ‗Manual of the Madura Country”; In Ramaswami Aiyar v
VengudisamiAyyar [(1898) 22 Mad 113] the Court had relied on Dubois‟
‗Hindu Manner, Customs and Ceremonies‘. In Secretary of State v
ShunmugarayaMudalier [20 I.A 84 (1893)], the Court placed reliance on
Fergussons‟ ‗History of Architecture‟; and in Subramanian Chettiar v
KumarappaChettiar [AIR 1955 Mad 144 (DB)] the Court had placed
reliance on Edgar Thurston‘s “Castes and Tribes of Southern India.”]
38. It may be added here that in Omkarnath Vs Delhi Administration [AIR
1977 SC 1108], the Hon'ble Supreme Court has held that Sec.57 is not
exhaustive of the facts of which the Court may take judicial notice. This
dictum was followed by the Constitutional Bench of the Supreme Court in
the Ram Janambhumi case. Accordingly, in appropriate cases, with the aid
of appropriate books, even faith can be taken judicial notice of as a fact.
39.1 Given the contextual setting of this case, where evidence is scanty, and
part of which needs an understanding on a plane of faith, this Court deems it
appropriate to rely on the Gazetteers and other literature which includes the
renowned Mackenzie Manuscripts, though, as the Supreme Court has held
may not be conclusive of the facts that they state. To this may be added two
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other books of certain significance:
The first is, Ext.A59, a 1941 publication of the Palani Devasthanam
(at a time which the trial court has considered as a period post the
arising of the dispute between the parties herein which it observed
when it dealt with Ramappaier's copper plate inscription, to be dealt
with later). That book was published some 47 years before the
present batch of cases were instituted. This book is in English, and it
not only has captured the faith associated with Palani temple, Bogar
and Pulipani but also makes the statement that the descendants of the
Canarese Udayar – read it as Adhi Pulipani, were performing pooja
for deity Dhandayudapani.
The second book is “Palani Varalatru Avanangal (in Tamil,
translated into English, 'The Historical Documents of Palani' ). It is a
collection of historical documents such as palm leaf inscriptions and
copper plate inscriptions. The book also discloses the source and
material and also where they are preserved.
All the literature referred to provides composite information on,
(a) mythological facts founded on pure faith;
(b) historical facts on tangible evidence; and
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(c) historical facts whose existence could be deduced from the other
two.
This treasure of information which the Gazetteer of the Government, or the
famed Mackenzie Manuscripts along with the other books – Ext.A59 (which
refers to Mackenzie Manuscripts) and “Palani Varalatru Avanangal'
provide are of invaluable assistance to this Court in forming its opinion
regarding the historical facts relvant for the current purpose.
39.2 It may, however, have to be added that the reliability of these books for
forming an opinion largely depends on the quality of submissions against
their credibility. The defendants, however, though show a single-minded
focus in non-suiting the plaintiff, yet have not come out with any credible
information rendering the reliability of these books suspect. To re-
emphasise, barring one book (Palani Varalatru Avanangal), others are
either a Government publication, or the publication of the Madras
University, or its publication – Ext.A59. The defendants appear to have
been caught in an embarrassingly awkward position, as they would be
compelled to negotiate severe moments of discomfiture if they have to now
speak against the reliability of these literatures. Turning to the other book
(Palani Varalatru Avanagal), as earlier mentioned the editor of the book is a
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former faculty of the Department of Archaeology of Tamil University, and it
discloses the source of information, most of which are predominantly in the
custody of the Government museum or its library of manuscripts. The
defendants did have the advantage of verifying the source, yet they did not
make a statement that the information that these books disclose is contrary
to the source material, nor chose to produce their certified copies before the
court.
39.3 Thus, the various books listed in paragraph 29, more particularly the
four books herein above referred to are found to be reliable enough for this
Court to seek assistance and to act upon.
40. Keeping the plaintiff's claim of lineage to the Adhi Pulipani aside for the
present, the rest of the narration as could be found in the literatures referred
to above, reflects a belief which the people of this territory and elsewhere
have held for few thousand years, perhaps long before the society had ever
contemplated on the need for geographical borders, which, to borrow
Tagore's poetical idea, for building narrow domestic walls to fragment the
world and the human race. The belief that Bogar and Adhipulipani lived
and that Bogar made the nava-paashana deity of Dhandayudapani and
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consecrated it in the Palani hills are inseparably ingrained in the
consciousness of the society, more significantly in those who believe in
Dhandayudapani of Palani hills. The origin of this belief may have been
lost in antiquity, yet it has transcended to stay as a reigning faith in the
consciousness of those who hold it.
41.1 Now, it is this faith, the existence of which this Court has taken judicial
notice of as a fact within the meaning of Sec.3 of the Evidence Act, the
Constitution has avowed to protect as an aspect of the fundamental right to
conscience under Article 25 of the Constitution. Should this Court disturb it
now? Or, can it? That which the Constitution protects, the Courts shall not
hazard a scrutiny to discredit. This, now peg-marks the contours of this
court's approach to the dispute before it: this court does not propose to
engage in any over-enthusiastic extravaganza to imperil the social belief
associated with Bogar and Adhipulipani and the Palani temple, while
engaged in the process of resolving an ordinary dispute of title over a piece
of land. And, the Indian jurisprudential minds, long trained in the Evidence
Act, its semantics and principles, are also required to be told that for
deciding the issue of the plaintiff's title to the suit property, there is hardly a
need to intervene with the social beliefs, more so when all those who hold
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the belief are not before the Court.
41.2. It now implies that this court will retain the faith associated with
Bogar, Adhi Pulipani and Palani hills is now a fact and is no more a matter
of presumption. Accordingly, it records its disagreement with the trial court
and holds that Adhi Pulipani was not a temple priest, an insulting
description which the trial court has unmindfully entered, and holds that
Adhi Pulipani was a revered disciple of the Siddha guru – Bogar. The
Pulipani Swamigal might have been performing pooja before and after the
advent of the H.R. & C.E. Act, but they are principally madathipathis of the
ashram, and not ordinary temple priests.
42. A word of caution, however, is required to be made. The Supreme
Court did point out the inadvisability of relying on texts on history to decide
private disputes on title, but that will be an aspect which this court may have
to remember when the discussion moves on to consider the plaintiff's claim
of title to the suit property.
Plaintiff's lineage to Pulipani.
43. For proving his lineage, the plaintiff, in essence, has relied on Ext. A4 a
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book titled ―Palani Sthala Varalaatrin Adhi kodi vazhi Vivaram', (which
when translated to English will read as 'Historical Details of the Lineage
of Palani'), which the plaintiff's Pulipani Ashram had published in 1965.
At page 33 the book lists those who worshipped Sri Dhandayudapani swami
of Palani. It states that:
(i) In Kreta Yug (also known as Satya Yug), Brahma worshipped;
(ii) In Treta Yug, Indra worshipped;
(iii) In Dwapara Yug, Boghar consecrated the deity for Dhandayudapani,
and worshipped till the year 204 of Kaliyug;
(iv) From the year 205 of Kaliyug, Adhipulipani worshipped.
(v) Thereafter the book lists 11 Pulipani Pathira Udayar, commencing
with Naina Pulipani Pathira Udayar and ending with Boganatha
Pulipani Pathira Udayar (and he is now succeeded by the present
plaintiff) as those who had worshipped the deity Dhandayudapani.
44. The trial court dismissed the plaintiff's claim of lineage to Adhi Pulipani
on the following grounds:
a) That Ext.A4 was published only in 1965 after dispute had arisen
between the parties (between 1936 and 1938 over the revenue sub-
division of the Palani hills) and hence it is unreliable.
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b) That Adhi Pulipani was a Canarese Udayar, but the plaintiff belongs
to the Mudaliyar community;
c) That going by the information provided in Ext.A4, each of the
Pulipani Pathiraswamigal should have lived, on an average, for 443
years, which is unbelievable. (For reckoning it, it fixed the
commencement of Kaliyug, and appeared to have divided the number
of years since then with the number of Pulipani Pathira Swamigals
listed in Ext.A4).
45. In paragraph 39.3 above, this Court has already held that the literatures
on the Palani temple, Bogar, Adhi Pulipani can be received in evidence
under Sec.57 of the Evidence Act. Some of them may now be referred to
ascertain the lineage of the plaintiff to Adhi Pulipani. (The keenly interested
are advised to flip on a few paragraphs backwards, and may re-ascertain)
46. Before dealing with the issue, it needs to be underscored that the trial
court had walked into a conceptual error. When the plaintiff seeks lineage to
some revered soul who lived 5,000 years ago, evidentiary facts may not be
complete, and few links are bound to be missing. Here, it is required to be
re-emphasised that courts cannot seek proof of those facts which are beyond
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the capacity of the parties to produce, for law does not demand the
impossible. And, where evidence which a logical mind seeks is beyond
human ability to produce, then the Court is duty-bound to read the evidence
on either side to draw necessary inferences on the probable existence or non-
existence of a fact. This would now imply that the defendants/appellants
cannot stop by merely spotlighting certain missing links in the plaintiff's
claim of lineage to Adhi Pulipani, but may have to produce evidence
credible enough to improbabilise the plaintiff's claim of lineage to Adhi
Pulipani. If the life of the law is not logic but experience, it is imperative
that the court's demand for evidence must not border on illogicality. That
precisely is the point where the trial court had misdirected its analysis in
entering its finding on the average life span of Pulipani Swamigal.
47.1 Is there a proof of the probable existence of the lineage which the
plaintiff claims to Adhi Pulipani? There are at least three/two references in
the following literatures (which have been already extracted in the Tables II,
I, and IV in paragraph 29 above):
a) Mackenzie Manuscripts based on local accounts that the ―then
Panipatra Odaiyar seeking his Mudaliyar disciple fit to be a spiritual
teacher asked him to take a wife, and build a matha (a madam or
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mutt) and after giving his blessings that he and his lineal
descendants should continue to be teachers with the title Lokaguru
Nayinar‖.
b) Pulipani's descendants were the priests at the principal shrine from
remote times, and, when Thirumalai Nayak's (A.C. 1623-59) general
Ramappier visited the temple, he performed an ashta-bandana
Kumbabisheka for the hill-temple and introduced the adi-saiva
Sivacharyas to officiate in pooja services (Ext.A.59, Table I
paragraph 29).
c) The palm leaf inscription of Nittala Narayana Iyer, dated 28.04.1816
records that Nayinaththai Mudaliyar had become the disciple of Adhi
Pulipani Pathira Udayar and that he later came to be known as
Nayinar Pandaraththar. This Nayinar Pandaraththar subsequently
came to be known as Pulipani Pathira Udayar. (page 87, Palani
Varalatru Aavanangal, Table IV in paragraph 29 above)
47.2 Since this Court has decided to act on these books and the historical
facts they provide, it could now be derived:
a) That Adhi Pulipani, though a Canarese Udayar, his disciple belonged
to the Mudaliyar community. (This instantly clarifies the confusion
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which the trial judge had entertained).
b) That the disciple and the descendants of the Adhi Pulipani were also
known by the name Pulipani Pathira Udayar.
c) That these Pulipani Pathira Udayar were also called Pulipani
Pandaraththar.
d) And, these pandaraththars were replaced by the brahmin priests by
Ramappier.
These facts preponderates the probability that the plaintiff has established
his lineage to Adhi Pulipani Pathira Swamigal. And, there are couple of
evidentiary materials aided by a rule of evidence that will render the claim
of lineage most probable. It will be considered in the next section.
Substantial Question (a) is thus held against the appellants.
Plaintiff's possession of the suit property & its antiquity:
48. Here the relevant evidences are: (a) Evidence prior to Ext.A6 dated
15.11.1884. This will comprise again the literature referred to above plus
the copper plate inscription attributed to Dalavoy Ramappier; and (b) Ext.
A6 itself.
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A. Ext. A6, the Memorandum of Zamindar of Ayakudi
49. Ext.A6 is the original memorandum under the hand of zamindar of
Ayakudi, dated 15.11.1844. Arguments were heard that this zamindar was
the manager of the temple, and as a manager, he had no authority to assign
the suit property to anyone. And, this argument was but a reiteration of the
findings of the trial court which it pivoted on the Regulation VII of 1817 of
the East India Company. The trial court‟s line of reasoning is:
a) Under this Regulation, the superintendence of Hindu and
Mohammedan religious institutions was vested in the Board of
Revenue, though it was later withdrawn between 1839 and 1842.
b) Ext.A6 was executed when there was no effective supervision of the
temple by the British sovereign, and that this document indicates that
the hill promoboke was granted in favour of the plaintiff's
predecessor.
c) And, if it was so granted then it would have been entered in the Inam
Register by the Inam Commission, which came to be established on
16.11.1858. And, since this grant was not entered in the Inam
Register, there is no grant.
d) The Ayakudi zamindar was only a custodian of the temple and he had
no power to make the grant.
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50. What does Ext.A6 state? It reads as below:
Original Tamil Version English Translation (to the extent
possible)
Sri Palani Devasthanam Manager
Ayakudi zamindar Kumara Kondama
Nayakkar
Account for land with Pulipani Pathira
Udayar Agadi madalayam.
At the foot hills of the hills, a plot
measuirng 200 feet East-west x 140 ft.
north-south, that lies to the south of the
pathway leading to the hill, to the west
of samiyar madom, to the east of the way
to the temple, to the north of 18 stepped
temple..
Palayapattu, from Karnataka time till
date, for a very long time, being enjoyed
by Pulipani Pathira Udayar
hereditarily, and since it is the Agadi
Samadhi Swamigal, and since this place
absolutely belonged to Pulipani Pathira
Swamigal and that he was in absolute
enjoyment of the Swamigal, its account
is informed to the Swamigal.
Nowhere the zamindar of Ayakudi had recorded that the plot referred to in
Ext.A6 belonged to the temple, and that he, as the manager of the temple,
had granted it in favour of the then Pulipani Pathira Swamigal. On the
other hand, he had acknowledged that:
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➢ Pulipani Swamigal was in occupation or possession and enjoyment of
the plot referred to (item 1) for a long time, and had been holding it
hereditarily; and
➢ that the plot described therein absolutely belonged to him.
51. When the Court is invited to understand the contents of a document, it
must be cautious not to travel beyond the words expressly employed in the
document, unless there is a compulsion on it to construct it for removing any
ambiguities. This is an unshakeable statement embedded firmly within the
scheme of the Evidence Act as well as in law of construction of documents,
and it hardly requires an authority to fortify it. When this rule is applied,
this Court does not find any ambiguity in Ext.A6, warranting its
construction and to substitute any of the express words of the document.
What, therefore, does Ext.A6 convey?
➢ That even in 1844, some 144 years before the institution of the suit,
Pulipani Swamigal had been in possession.
➢ That his possession had been in continuation of the hereditary
possession of the property (reference was also to Agadi Samadhi), and
for a considerable length of time.
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➢ That Pulipani Swamigal's title to the plot was acknowledged in
unequivocal terms even in 1844.
52. Since the plaintiff's title to item 1 suit property is now in dispute, this
Court chooses to concentrate more on his immemorial possession as has
been recorded in Ext.A6. As stated earlier, the defendants do not dispute the
genuineness of Ext.A6 but import a construction on it as if it discloses a
grant, when it is not.
53. The contextual significance of Ext.A6 however, is that it describes the
state of affairs that was in existence then. To make it more specific, it
informs:
➢ That the office of Pulipani Pathira Swamigal was unassailably in
existence even in 1844.
➢ That even in 1844, the possession of the item 1 property was with the
then Pulipani Swamigal.
This document in essence describes the state of affairs at the relevant time,
and explains the existence of the office of Pulipanipathira swamigal, and his
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possession of the item 1 property in 1844. However, it still does not trace
them to the time of Adhi Pulipani. It will be eventually ascertained.
A. Edict of Dalavoy Ramappier (The Copper-plate inscription) :
54.1 That Ramappier was the Dalavoy of Thirumalai Naickar was a
historical fact which the Gazetteer and the Macanzie Manuscripts have
recorded. And, it is never in dispute. Before introducing the contents of the
copper plate inscription, it is necessary to provide a background to it.
54.2 Initially, Adhi Pulipani (referred to as the Canarese Udayar in the
Gazatteer, Macanzie Manuscripts and Ext.A59), started worshipping
Dhandayudapani swami in the Sivagiri hills. The Devasthanam had also
adopted this belief which it had recorded in Ext.A59 that the descendants of
Pulipani were performing pooja from 'remote time. All the literature, which
includes the Gazetteer and the Mackenzie Manuscripts informs that Dalavoy
Ramappier had replaced the pandaram who was hitherto offering pooja with
brahmin Sivacharya.
55.1 The copper plate inscription of Ramappier reads as below (from page
41 of Ext.A59):
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Original Version in Tamil English Translation (***)
(Operative Portion)
Edict of Ramappier, Dalavoy of
Thirumalai Naickar made on Monday,
16th day of Thai, Srimugha year (as
per Tamil caldender), the 4578 year of
Kaliyuga and 1366th Salivahana year,
poorva paksha, sapthami thiti.,
As it is proposed to hold
ashtabhandhanam for Lord
Dhandayudapani and since
Ramappier did not incline to receive
Prasad from Pulipani
Pathiraswamiyar who was hither to
offering pooja to the said deity,
Ramappier along with Poligers
persuaded Pulipaniswamil and
appointed 1. Saraswathi Ayyan of
Kodumudi, 2. Thambaavaiyyan of
Maruthur, 3. Subbaiyan of Nattara
Ayyan Kovil, 4 Muthaiyyan of Karur
and 5 Akiladaiyan of Kadambakovil
brought by Polygar, from Kongu
Region for conducting pooja.
Pulipanipathira Udayar who had been
perfoming pooja to Dhadayudapani
from time immemorial are to be give
¼ portion of the „nirmalya swarna
pushpam‘ to be given to the nambi
now appointed. Besides the
Pulipanipathira Udayar are required to
perform pooja to durgainamman,
maragatha lingam, valapuri shankhu,
navarathiri pooja and shooting the
arrow with all the protocols reserved
to the deities from prathamai to
dhasami and to perpetually serve all
the 24 servants (Pandarams),who were
granted special privileges, with
services such as Tirumanjanam,
Maalai Santhanam (preparation of
sandal paste for making garland),
vilvam etc., Palliyarai Kattiyam,
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Original Version in Tamil English Translation (***)
(Operative Portion)
Oduvar (minstrel), Kandha Puranam,
Tirupugazh (recital of these liturgies),
Tiruvalagu, Sattakkaal, Thoopakkaal,
washing of parivattam cloth, Kolla
sevagam, Upaya Tirumanjanam,
Vagaiyara Kattalai (rotational
representation for each of the
communities).
Whereas, the hereditary title of
ownership of this holy place / shrine is
devolved on Pullippani Pathira
Udayar, since this shrine turns out to
be 'Kaaranasthalam' of all the five
Saivite Brahmins, four of them having
been re-christened as Viruma Nambi,
Vijaya Nambi, Vaala Nambi and
Kosala Nambi, while Kodumudi
Saraswathy having been rechristened
as Kalachthambitham Sthavarasa
Pandithat, with grant of privileges like
Kayaasamara (Ochre color dress),
Pancha Kothu (five vessels) and
Thaavadam and a few special
treatments of Aarukaal Peedam,
Abisheka Mariyaathais, which are
being performed to Pullipanni Pathira
Udayar Aadheenam, we having
brought Pandarams and Nambimaars
before Pullippani Pathira Udayar,
having obtained their loyalty so as to
ensure that the affairs of God suffers
no deviation, appointed Pullipani
Pathira Udayar to supervise them and
the temple servants and thiking
devised and framed a scheme whereby
Pullipani Pathira Udayar is enjoined to
Nivedhanam and Punyaasanam by
engaging Brahmins and 24 sovereigns
of gold and 12 salagai (80/60 padi /
measures) of paddy along with
provisions required therefore are
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Original Version in Tamil English Translation (***)
(Operative Portion)
supplied to Pullippani Pathira Udayar
all supplied from the temple. The
Parivattam for Sathupadi to Goddess
at Malaikovil and silk skirts for
goddess at Village templeare to be
procured after shooting of Ambu, on
goddess at Village temple are to be
procured after shooting of Ambu, on
presentation of Asmanagiri,
Kuthuvilakku, Saravilakku,
Manithattam and Deepa Musthidis.
We have ordered for sustenance of
this scheme as long as the moon, the
sun, the stone and river Cauvery, the
grass (vegetation) and the earth exists.
Whoever render assistance to this
Charity (Dharmam), through words,
thinking, labour and material will get
the benefits / blessings of installation
of a crore of Siva Linga on the banks
of Ganges at Kasi. Those who imperil
this arrangement would be obliged to
suffer a curse of cow slaughter in the
banks of Ganges.
Drafted by Kandasamy Achari of
Palani.
(***) As near a translation as possible is made.
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The trial court, however, disbelieved the copper plate inscription
fundamentally on two scores:
That the original copper plate inscription was not produced; and
The Salivahana year in which it was purported to have been made
does not reconcile with the reign of Thirumalai Naickar. (Here, it
must be stated that in the book 'Palani Varalatru Avananangal', the
editor had indicated that the time referred to in the copper plate
inscription is wrong. He makes a similar reference to some other
copper plate inscriptions as well).
55.2 It first needs to be stated that the contents attributed to the copper plate
inscription, on its face, do not deal with Pulipani Swamigal‟s occupancy of
item 1 property, nor does it disclose that item 1 property had ever been given
by Ramappier to the former, for this court to engage excessively on the
consequence of its non-production as evidence. On the other hand, it was
more exproprietary in character, as it records the taking away of the right
which the Pulipani Pathiraswamigal hitherto had vis-a-vis the offering pooja
to the principal deity of Boghar‟s consecration. Hence, notwithstanding the
fact that the trial court has suspected the genuineness of the copper plate
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inscription, even de hors this document, what remains as an unimpeachable
historical fact is that Ramappier was the general of Thirumalai Naickar, and
it was he who had replaced the non-brahmin Pulipani Pathiraswamigal with
brahmin Sivacharyas for performing pooja in the temple. And, all the
literatures on the topic discloses that till it happened, Pulipani
Pathiraswamigal was performing pooja, and going by Mackenzie
Manuscripts the descendants of Adhi Pulipani were performing it.
Therefore, even in the absence of the original copper plate inscription, the
historical facts of which this Court has taken judicial notice, guide it to
conclude that the Pulipani Swamigal was there until Sivacharyas, the
brahmin priests, were appointed for the temple during the reign of
Thirumalai Naicker. Substantial Questions (c) to (e) are answered
accordingly.
55.3 Turning to the genuineness per se of the copper plate inscription, it
particularly refers to granting Pulipani the right to shoot arrows during the
„navarathri‟ or dussera festival as part of the 'pari vettai' event. And,
Ext.A59, the Devasthanam publication candidly states that this right is being
exercised annually by the Pulipani Swamigal who hold the office for the
time being, a fact which D.W.4 admits, and the first appellate court has
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pointedly captured to trust the copper plate inscription. Its line of reasoning
is logical: If this copper plate inscription of Ramappier is not genuine, then
there is no way that the shooting of the arrow by the Pulipani Swamigal can
be explained.
56. To sum up, two facts emerge out of the discussion in this segment:
That in 1844, Pulipani Swamigal was there, and till date this office is
in existence;
During the reign of Thirumalai Naickar (between 1623 and 1659),
Pulipani Pathira Swamigal was there.
57. The disclosure in the Mackenzie Manuscripts about the existence of the
belief that the descendants of the Adhi Pulipani were performing the pooja
till they were replaced by brahmin priests notwithstanding, there is an
equally efficacious rule of evidence which enables to establish the same
conclusion. It is enabled by Illustration (d) of Sec.114 of the Evidence Act.
It reads:
Sec.114. Court may presume existence of certain facts: The Court
may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to
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the facts of the particular case.
Illustration (d) That a thing or state of things which has been shown
to be in existence within a period shorter than that within which such
things or state of things usually cease to exist is still in existence.
This provision with the illustration provides the most commonsensical
solution in presuming the continued existence of a state of affairs, by
providing the proof of its existence at any point of time which common
course of natural events and human conduct may guide a rational mind.
This implies that where the existence of a fact can be proved, till the
contrary is proved, its continued existence can be presumed.
58. In Ambika Prasad Vs Ram Ekbal Rai [AIR 1966 SC 605], the Supreme
Court has held that this presumption operates both forward and backwards
in point of time. Accordingly, where the facts point to the existence of a
state of affairs at a particular point in time, a presumption arises in law
that the state of affairs had existed prior in point of time. This principle is
explained by K.T Thomas, J (as he then was) in Saleem v. A.R.
Rajeswary, [(1990) 2 KLJ 245], wherein it was held as under:
―Presumption of fact is usually drawn by court when it has the
assurance of its existence of the fact or thing is in issue, prior
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existence of it, in human experience is inferable from proof of its
existence at a particular point of time, in the way as its continued
existence for some length of time. But the degree of proximity of this
prior existence as well as continuity depends on facts and
circumstances of each case‖.
The learned judge then went on to observe:
―8. Presumption of fact is usually drawn by the court when it has the
assurance of its existence with a reasonable degree of certainty.
When existence of the fact or thing is in issue, prior existence of it, in
human experience is inferrable from proof of its existence at a
particular point of time, in the same way as its continued existence
for some length of time. But the degree of proximity of this prior
existence as well as continuity depends on facts and circumstances of
each case. If there is evidence that a mountain was in existence at a
particular time, the inference that the mountain remained like that for
a century before also is perfectly permissible in the realm of
presumption. Instead of a mountain, if the subject is a hillock the
presumption backward can be stretched upto, say a few years. But if
the subject is a soap bubble it would be inept to presume that the
bubble remained like that even half an hour prior to the time. Hence
there cannot be any inflexible rule of presumption regarding the
space of time during which it would have existed earlier.‖
(emphasis supplied)
59. Sec 114 with Illustration (d) coupled with an understanding of its
functional utility in appreciating evidence, when applied to the facts of this
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case, two factual inferences can be instantly derived:
That the office of Pulipani Pathira Swamigal is there now, and was
there in 1844 and was also there in the 16th century. Since there is no
contra evidence, the lienage of this office continued till the date of
Adhi Pulipani. Therefore, this contention of the plaintiff is not only a
statement which the Court could take judicial notice of, aided by the
books and literatures, but is also sustainable through a rule of
evidence.
Similarly, Pulipani Pathira Swamigal is in possession of the suit
property now, that he was in possession of the suit property in 1844
(as evidenced by Ext.A6), and this possession, in the absence of
evidence to the contrary (where the defendants neither strain
themselves nor this court), has to be presumed backwards in point of
time till Adhi Pulipani. And, in the process it affirms the statement in
Ext.A6 that the Puplipani Pathira Swamigal had been in possession of
the suit property hereditarily for a long time.
In the absence of a dispute as to the existence of the office of Pulipani
Pathira Swamigal till now, with no contra evidence to challenge his
possession till the first survey and settlement in 1886, (and even thereafter
till date) this Court has least difficulty in holding that the plaintiff, the
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present Pulipani Pathira Swamigal has established his lineage to Adhi
Pulipani and that the successive Pulipani Pathira Swamigal since the time of
Adhi Pulipani have been in possession of item 1 suit property till now. The
point however is, does it confer title over item 1 property on the plaintiff?
Acquisition of title by the First Occupant:
60. This Court has just drawn presumptive inferences from an existing fact
under Sec.114 of the Evidence Act to conclude that Pulipani Swamigal‟s
possession of item 1 might have to be traced to the days of Adhi Pulipani.
This was made possible through time travel into the past from the present
day with stopovers in 1844 and the 17th century. The point which has now
arisen for consideration is whether the possession of item 1 since about 3000
BC provides a legal possibility of conferring title over it on the plaintiff. To
state it differently, whether occupancy of item 1 for a few millennium years
mature into ownership? In its engagement with this question, this Court
intends to summon the doctrine of pedis possessio and res nullius for
developing its solution.
61. Res nullius is a Latin expression derived from the Roman Law. It means
„nobody‟s property, or a property without an owner. Pedis possessio is
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another concept or theory in the ancient Roman law. In the Institutes of
Justinian, Chapter 41, it is stated thus:
―What does not belong to anyone by natural law becomes the
property of the person who first acquires it.‖
From the Roman civil law, the concept transplanted itself to the
common law of England which understands it as occupation of a property
to establish ownership as the first occupant of the land. Oliver Wendell
Holmes, The Common Law (1881, Lecture VI, 216) describes it as below:
―To gain possession, then, a man must stand in a certain physical
relation to the object and to the rest of the world, and must have a
certain intent. These relations and this intent are the facts of which
we are in search.‖
In his treatise on Evidence (12th Edition), Best has set out the position
thus:
―§366. The presumption of right in a party who is in the possession of
property, or of that quasi possession of which rights only
occasionally exercisable are susceptible, is highly favoured in every
system of jurisprudence, and seems to rest, partly on principles of
natural justice, and partly on public policy. By the law of England,
possession or quasi possession, as the case may be, is prima facie
evidence of property " Melior/potior est conditio possidentis"; and
the possession of the real estate, or the perception of the rents and
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profits from the person in possession, is primâ facie evidence of the
highest estate in that property; namely, seisin in fee. But the
strength of the presumption, arising from possession of any kind, is
materially increased by the length of the time of enjoyment, and the
absence of interruption or disturbance from others who, supposing
it illegal, were interested in putting an end to it. The rule is, that
where the facts show the long-continued exercise of a right, the court
is bound to presume a legal origin, if such be possible, in favour of
the right. And in such cases, the courts have presumed not only that
the right had a legal origin, but many collateral facts, so as to render
the title of the possessor complete, according to the maxim, ‗Ex
diuturni temporis omnia praesumuntur rite et solemniter esse acta‘.‖
The jurisprudential basis for possession and the root of title was explained
by Richard A. Epstein, in a seminal article titled „Possession as the Root
of Title,’ [Georgia Law Review 13, No. 4 (Summer 1979): 1221-1244] in
the following passage:
―Within this viewpoint, it is possible to show the unique place of
first possession. It enjoyed in all past times the status of a legal
rule, not only for the stock examples of wild animals and sea
shells but also for unoccupied land. ―...In essence, the first
possession rule has been the organizing principle of most social
institutions, and the heavy burden of persuasion lies upon those
who wish to displace it.‖
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This has been recognised in Indian law. In Thayarammal (Dead) by LRs Vs
Kanakammal and others [(2005) 1 SCC 457], there is a reference to it. See
also, Meenugu Mallaiah and others Vs Ananthula Rajaiah and another
[(2016) SCC OnLine Hyd 318], it is held as below:
"45. Jurisprudentially there are many modes of acquiring ownership.
On the principle of occupation, a person may become the owner of a
res nullius by taking possession of it. The thing concerned did not
belong to anybody.‖
But, the early case of Welb v Fox [7 T.R 397], contains the statement of the
rule that a person in possession is presumed to be the owner unless the
contrary is proved. Such a rule existed in the common law as well as the
civil law of other European systems (See: Rules 549 and 550 of the Code
Napoleon). The real treatise on the principle is contained in the seminal
work titled Ancient Law [10th (1908) Edition] Sir Henry Maine writes in the
Chapter titled „Early History of Property’ (extracted portions between pages
217 to 228]
"Occupancy is the advisedly taking possession of that which at
the moment is the property of no man, with the view (adds the
technical definition) of acquiring property in it for yourself. The
objects which the Roman lawyers called res nullius - things
which have not or have never had an owner - can only be
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ascertained by enumerating them. Among things that never had
an owner are wild animals, fishes, wild fowl, jewels disinterred
for the first time, and lands newly discovered or never before
cultivated. Among things which have not an owner are moveables
which have been abandoned, lands which have been deserted,
and (an anomalous but most formidable term) the property of
an enemy. In all these objects the full rights of dominion were
acquired by the occupant, who first took possession of them
with the intention of keeping them as his own - an intention
which, in certain cases, had to be manifested by specific acts."
(Page 218)
―...It was once universally believed that the proceeding implied
in occupancy was identical with the process by which the earth
and its fruits, which were at first in common, became the
allowed property of individuals. The course of thought which
led to this assumption is not difficult to understand if we seize
the shade of difference which separates the ancient from the
modern conception of Natural Law. The Roman lawyers had
laid down that occupancy was one of the natural modes of
acquiring property, and they undoubtedly believed that were
mankind living under the institutions of Nature, occupancy
would be one of their practices..... but they certainly do seem to
have the conjecture, which has at all times possessed much
plausibility, that the institution of the property was not so old as
the existence of mankind. Modern jurisprudence, accepting all
their dogmas without reservation, went far beyond them in the
eager curiosity with which it dwelt on the supposed state of
nature. Since then it had received the position that the earth and
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its fruits were once res nullius, and since its peculiar view of
nature led it to assume without hesitation that the human race
had actually practised the occupancy of res nullius long before
the organisation of civil societies, the inference immediately
suggested itself that occupancy was the process by which the 'no
man's goods' of the primitive world became the private property
of individuals in the world of history." (Pages 222-223)
Occupancy first gave a right against the world to an exclusive
but temporary enjoyment, and afterwards, this right, while it
remained exclusive, became perpetual. Their object in so
stating their theory was to reconcile the doctrine that in the
state of Nature, res nullius became property through occupancy,
with the inference which they drew from the scriptural history
that the Patriarchs did not at first permanently appropriate the
soil which had been grazed over by their flocks and herds."
(Page 225)
―... Occupancy is the advised assumption of physical
possession; and the notion that an act of this description
confers a title to 'res nullius', so far from being characteristic
of very early societies, is in all probability the growth of a
refined jurisprudence and a settled condition of the laws. It is
only when the rights of property have gained a sanction from
long practical inviolability, and when the vast majority of the
objects of enjoyment have been subjected to private ownership,
that mere possession is allowed to invest the first possessor
with dominion over commodities in which no prior
proprietorship has been asserted. The sentiment in which this
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doctrine originated is absolutely irreconcilable with the
infrequency and uncertainty of proprietary rights which
distinguish the beginnings of civilisation. Its true basis seems to
be, not an instinctive bias towards the institution of Property,
but a presumption, arising out of the long continuance of that
institution, that everything ought to have an owner. When
possession is taken of a 'res nullius', that is, of an object
which is not or has never been, reduced to dominion, the
possessor is permitted to become proprietor from a feeling that
all valuable things are naturally the subjects of an exclusive
enjoyment and that in the given case there is no one to invest
with the right of property except the Occupant. The Occupant,
in short, becomes the owner, because all things are presumed
to be somebody's property and because no one can be pointed
out as having a better right than he to the proprietorship of
this particular thing." (Page 227-228)‖
In between Maine also quotes Blackstone which reads:
"... by the law of nature and reason he who first began to use it
acquired therein a kind of transient property that lasted so long
as he was using it, and no longer, or to speak with greater
precision, the right of possession continued for the same time
only that the act of possession lasted. Thus the ground was in
common, and no part was the permanent of any man in
particular; yet whoever was in the occupation of any
determined spot of it, for rest, for shade,or the like, acquired
for the time a sort of ownership, from which it would have
been unjust and contrary to the law of nature to have driven
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him by force, but the instant that he quitted the use of
occupation of it, another might seize it without injustice.' He
then proceeds to argue that "when mankind increased in
number, it became necessary to entertain conceptions of more
permanent dominion and to appropriate to individuals, not the
immediate use only, but the very substance of the thing to be
used. (Page 223-224)
In State of U.P. Vs I Additional District Judge & Others [(2013) 6 All
LJ 316 : 2013 SCC OnLine All 13736] Sudhir Agarwal J has dealt with
extensively on the topic, and refers to Brihaspati Smriti (after citing
Maines), which inter alia states (from paragraph 71 of SCC OnLine):
―7. He whose possession has been continuous from the time of
occupation, and has never been interrupted for a period of thirty
years, cannot be deprived of such property.
9. He who does not raise a protest when a stranger is giving away (his)
landed property in his sight, cannot again recover that estate, even
though he be possessed of a written title to it.
26. When possession extending over three generations has descended
to the fourth generation, it becomes legitimate possession, and a title
must never be inquired for.
27 . When possession undisturbed (by other) has been held by three
generations (in succession), it is not necessary to produce a title;
possession is decisive in that case.
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30 . He whose possession has passed through three lives and has been
inherited from his ancestors, cannot be deprived of it unless a previous
grant should be in existence (in which the same property has been
granted to a different person by the king)‖
62.1 Was Palani Hill res nullius in 3000 BC?. At least for Bogar and Adhi
Pulipani, it was. Bogar chose to install the deity he made with navapashaana
atop the hill. No political government of whatever size and authority had
ever appeared to have taken an objection to it then and thereafter.
Otherwise, how to explain its continued existence for 5000 years? At least
prior to the sarasen invasion, the society would have been a large,
homogenous society of Hindus with their political governance rested with
the Hindus. Those might have been the times when saints and sages, rishis
and the Siddha were revered, and the political government of the times
might not have interfered with the Siddha Boghar occupying a piece of
hillock, then called Sivagiri hills, with his Canarese disciple Adhi Pulipani.
But millenniums of years later, no political government at any points of time
had chosen to disturb Pulipani occupying a piece of land at the foothills of
Palani – neither the Moghals, nor the East India Company, nor the British.
Even during the reign of Thirumalai Naickar, Dalavoy Ramppier, had
snatched the right to perform pooja to Dhandayudapani from Pulipani
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Swamigal and granted it to the brahmins, yet he did not harm the Pulipani
Swamigal‟s possession over a small plot of land at the foot hills – now
described as item 1 in the plaint. It is hence this Court considers that in its
search for a legal philosophy to ascertain the ownership of Pulipani over
item 1, it finds that the doctrine of res nullius coupled with pedis possessio
offers an unimpeachable explanation.
62.2 Be it the pedis possessio of the Roman law, or our own texts, the
smirits as extracted above, provide a preponderating probability, nay,
possibility, that the plaintiff has acquired title to the item 1 property founded
on its uninterrupted occupancy for five millennium years.
62.3 If the passage of Richard A. Epstein (quoted in paragraph 61) is
revisited, he has observed:
―...In essence, the first possession rule has been the organizing
principle of most social institutions, and the heavy burden of
persuasion lies upon those who wish to displace it.‖
This statement in essence is an aspect on the burden of proof, which under
the Evidence Act is embodied in Sec.110. It reads:
The burden of proof as to ownership: When the question is
whether any person is owner of anything of which he is shown
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to be in possession, the burden of proving that he is not the
owner is on the person who affirms that he is not the owner.
Epstein returned to the subject in another article titled ―Past and Future:
The Temporal Dimension in the Law of Property ”. The learned author has
proceeded to state as follows:
―In Anarchy, State and Utopia, Robert Nozick offers a historical
account of justice, which is consistent with his theoretical
perspective, but which is in no way sensitive to questions of
temporal degree: rights are strictly determined by temporal priority.
The older the title, the better the title-period. Sequence is
everything; the magnitude of the interval is nothing.‖
Dealing with Sec.110 of the Evidence Act, the Supreme Court in Ram
Janmabhumi case [(2020) 1 SCC 1] has held:
―1193.... Section 110 deals with the burden of proof. Where the
provision applies, the burden of proving that another person who is
in possession is not the owner lies on the person who affirms against
the ownership of that other person. But, for Section 110 to be
attracted, there must be a question as to whether any person is the
owner of anything and the ownership claimed must be that of which
he is shown to be in possession. Section 110 is based on the principle
that title follows possession. That is why the provision postulates that
where a person is shown to be in possession, and a question arises as
to whether that person is the owner, the law casts the burden of
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disproving ownership on the individual who affirms that the person in
possession is not the owner.‖
So far as the precondition for invoking Sec.110 goes, first, there is no
dispute here that the plaintiff is in possession, and it has been explained that
this possession is no less than 5,000 years old, and hence when the plaintiff
asserts his title based on immemorial physical occupancy and seeks
declaration of his title, the burden is on the defendants to disprove the effect
of the evidence which the plaintiff has produced. To state it differently,
when drawing an inference on the plaintiff‟s possession traceable to
Adhipulipani has become both compulsive and inevitable for this court, then
there must be a possibility for an alternative inference of greater persuasive
value to dislodge the former. After all civil disputes are decided on the basis
of preponderance of probability.
63. This takes forward the ongoing discussion on the plaintiff‟s title based
on possession to the quality of defence offered. However, this court intends
to make a statement on why it did not prefer to test the plaintiff‟s case for its
sustainability as per the doctrine of lost grant (on which the trial court had
invested its focus) and opted for res nullius and pedis possessio.
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64. The doctrine of lost grant intends to grant legitimacy to a grant whose
origin is lost in time. Its objective is to protect the current status quo of the
existence of a certain right whose origin is lost in antiquity, and is largely
founded on a presumption of the legitimacy of its origin, which Courts are
required to make. And in a dispute-situation, it helps in shifting the burden
on the one who opposes its application to prove the contrary to dislodge the
possibility of applying the doctrine. While the intent and purpose of the
doctrine will remain safe its application to the facts of a case may be affected
by contra evidence. If the doctrine of lost grant is analysed for its finer
nuances, it enables the court to make a set of presumption and not just the
presumption of the legitimacy of the origin of a grant. If analysed in its
deeper layers it reveals that there is presumption of a grantor and that the
grantor has made a grant. In the case now before this court, the facts as
pleaded and evidentially established defy the possibility of presuming the
existence of a grantor and a grant. It is hence this Court chose to apply the
doctrine of res nullius and pedis possessio backed by Sec.110 of the
Evidence Act as the most appropriate course in preference to lost grant.
65. During the course of the arguments, this Court did provide few cues to
the counsel on either side about the appropriateness of testing the evidence
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on the basis of the doctrine of acquisition of title by the first-occupant, but
in their passionate engagement with their arguments (which they may have
painstakingly prepared), both failed to capture it. As earlier mentioned in
paragraph 27(j) above, the parties‟ responsibility stops with pleading their
case and producing the evidence in support of them, and the advocates‟ role
stops with presenting what they consider the best for their clients, but it is
the court‟s duty that matters in the end. This Court has an obligation to stay
awake to preserve the public confidence in the institution of courts. It is
earned and not gifted. In Fathima Vs Rahamutullah [(2021) 1 CTC 499],
I had an occasion to hold that courts are doctors of bleeding rights. I
maintain it. It therefore, has become obligatory for the court to decide which
medicine – contextually which doctrine, is best suited to address the issue
before it when the facts and evidence necessary for its application are
available.
Defendants’ case on its title and Plaintiff’s title:
66. It is now time to test the quality of the defendants‟ case opposing the
plaintiff‟s claim of title to item 1. If the plaintiff‟s strategy is assessed, he
falls back on documents and those literatures which provide the historical
setting for creating a strong possibility in aid of his case. The latest
document that he relies on – Ext.A6, is at least about a century before the
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very creation of the H.R. & C.E. Department. Therefore unless the
defendants are on a surer plane that the item 1 property at all times has been
the property of Dhandayudapani, the presiding deity of the Palani hills, and
are also able to establish that this property has been enjoyed by the Pulipani
Swamigal only as a service inam, or a specific grant, the defendants may
find themselves on a tricky wicket.
67. The pleadings of the defendant commence with the assertion that the
Palani temple along with the suit property was under the administrative
control of the East India Company, who managed it through the Board of
Revenue as per the Regulation XVII of 1817, and it then came under the
British. And, this was followed by the Survey and Settlement proceedings.
So far as the plaintiff‟s possession goes, according to the defendants the
plaintiff and his predecessors are mere temple servants and that they are
given possession of item 1 property in view of the service they have been
performing. It is perhaps this plea which appeared to have over played in
the mind of the trial court excessively that it proceeded to presume that the
the plaintiff‟s possession of the suit property is the same as that of an
inamdar, and delved deeply into the significance of Inam Register, and read
the absence of any entry in the said register as a circumstance to reject the
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the plaintiff‟s claim of title. It may have to be added here that an entry in
the Inam Register may create a presumption in favour of its correctness (as
per AIR 1966 SC 1457), but absence of an entry does not mean anything. A
presumption can be drawn from the existence of a fact but not from its non-
existence.
68.1 Let the basic core contention of the defendants case – their basic
premise be now considered:
a) The first contention is that the Palani temple, including the suit
property, was under the administration of the Board of Revenue as per
the Regulation XVII of 1817 of the East India Company. This is
hardly about two hundred years from now, but this Court is
considering the history of the title to the suit property since 3000 BC.
And, the defendants have no evidence to offer before Regulation XVII
of 1817, more particularly anything that may render the evidence of
the plaintiff during this period suspect. The defendants‟ case plus
evidence, therefore, do not overlap the case of the plaintiff, both in
terms of their content and time.
b) Secondly, while there was Regulation XVII of 1817, still it is not
established if the Palani temple along with the suit property had
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actually come under the administration of the Board of Revenue.
And, the history also records that by 1839, the East India Company
itself had realised the futility of administering the religious
institutions, and post 1842 it allowed the trustees thereof to take over.
(It is now the Ayakudi zamindar had arrived on the scene and
authored Ext.A6 memorandum in 1844). And the formal death of
Regulation XVII of 1817 was officially declared vide the Religious
Endowment Act, 1863. Principally, there is no evidence to establish
what the defendants had pleaded.
c) Thirdly, the defendants are deliberately silent as to who was in the
management of the Dandayudhapani temple and the hill including the
suit property from Bogar‟s time till 1817 Regulation. If there should
be a grantor who ought to have granted item 1 to the plaintiff‟s
predecessors-in-office in terms of the defendants‟ case, then they
should have been there during this 4500 years period. The defendants
are silent on it. (It is hence this Court preferred the doctrine of res
nullius and pedis possessio in preference to lost grant). While the
proof in aid of the plaintiff‟s case makes it demonstrably evident that
the case of the plaintiff had preponderating probability about it
leading to an inference that he and his predecessors had acquired title
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even prior to 1817, the quality of resistance offered by the defendants
appears too weak to disturb it. Why should this court presume that the
plaintiff‟s title has been disrupted when it is admitted that the plaintiff
is in possession even to this day?
68.2 It is in this setting, the Settlement Register comes into existence in
1886. Ext.B31 is the extract of this document. According to it, the Palani
hill is stated to cover 98.13 acres and is assigned S.F.No:811/D. It further
shows the classification as „poromboke‟, and, in the remarks-column it was
recorded as ‘Subramania Rock Temple’. The next survey was in 1920,
presumably under the Survey and Boundaries Act, 1897. In this settlement,
the S.F.811D in the earlier survey was seen as correlated to S.No862. And,
in remarks column it is mentioned as Palani Sri Dhandayudapani swami
temple. And, the property is classified as Government poromboke.
68.3 Except to the extent covered and described as item 1 property, the
plaintiff is least worried about the classification of the entire Palani hills as
temple poromboke or revenue poromboke, or what is mentioned in the
remarks-column of the Settlement register. If the plaintiff has created a
strong probability, if not possibility of his case, then an entry in the
settlement register regarding the classification of the property – a unilateral
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statement by the survey official or his statement made in the remarks-column
of the Settlement register, can hardly acquire the potency to upset the
probability of the plaintiff‟s title and his case.
69.1 This court holds the statement in the settlement register as regards the
title to the property is not conclusive and cannot bind the court. The reasons
are:
a) A wrong classification of a property in the revenue or survey records
cannot affect the title vested in law. See: Ajit Kaur alias Surjit Kaur
Vs Darshan Singh (Dead) through Legal Representatives and others
[(2019) 13 SCC 70], and N.S.Kuppusamy Odayar & another Vs The
Panchayat Narthangudi [(1971) 1 MLJ 190]
b) A survey operation, by its very nature may be useful for fixing the
boundaries of a particular survey field, and to ascertain the extent of
property that falls within the field. A statement of a surveyor on the
title to the property has zero consequence since the survey official
does not have the authority either to vest or divest title to a property.
In other words, no surveyor can ever decide on title, and even if a
survey official ventures to make a statement on it, it can never be
conclusive. It is plainly one of jurisdiction and it belongs to the civil
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court See: Periasamy Goundan Vs District Revenue Office,
Coimatore [AIR 1980 Madras 180 (FB)], Rukkaiah Natchiar Vs
P.M.S. Mohammed Aamina Beevi & Others [2020(6) CTC 390].
c) Thirdly, beyond the call of his duty, a survey official is not expected
to be an expert in law and he cannot be presumed to know the law to
decide on title. Whether the title of Pulipani mutt vis-a-vis item 1
with its historical basis and roots in an originating faith could have
been noticed or appreciated by the survey officials itself is suspect
when the legal plane on which the plaintiff‟s right is required to be
appreciated is intricate and complex.
69.2 It would, therefore, be too dangerous to rely on a classification in the
settlement register as the conclusive proof of what it states on title. In the
instant case what is more significant, if not intriguing is that,
notwithstanding the said classification, the possession of the plaintiff or his
predecessor (at the relevant time when the survey operation took place) was
never attempted to be disturbed, and a couple of occasions when the
plaintiff‟s title faced some threat in the first half of the last century were also
not taken to their logic end. These circumstances are as below:
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a) On 29.02.1925, the Managing Trustee of the Palani Devasthanam
passed Ext.A8 poceedings enabling the then Pulipani to put up a
compound wall. This document refers to Ext.A6 memorandum of the
Zamindar of Ayakudi. However, ten years a notice dated 29.01.1935
was appeared to have been issued by the Devasthanam about the
compound wall built by the plaintiff, to which Ext.A16 reply dated
30.01.1935 was sent by the plaintiff, where it asserted that the
compound wall had been constructed only as per the boundaries
mentioned in Ext.A6. Nothing was done thereafter.
b) It seems that the Pulipani swamigal had approached the Municipality
for fixing the boundary stones for the plot which the Pulipani ashram
occupies. Under Ext.A10, dated 04.12.1934, the Municipality
required the Pulipani to approach the Tahasildar. This was appeared
to have been done, pursuant to which Ext.A13 notice of enquiry dated
30.08.1935 was issued by the Tahasildar, both to the plaintiff and the
Devasthanam. Vide Ext.A11, dated 01.02.1936 Tahasildar invited
objections from the Devathanam. Ultimately, it resulted in the
revenue sub-division of Sy. No 862 into Sy.No.862/1 and 862/2, with
the former representing the Palani hill other than item 1, and the latter
relating to item 1. These facts could be gathered from Ext.A18, dated
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27.07.1936 and Ext.A12 dated 06.08.1936 proceedings of the
Tahasildar. This revenue sub-division of S.F.862/2 was later stated to
have been cancelled by the proceedings of the Sub-Collector, but
there are two versions about it: (i) In Ext.B18, there is an endorsement
that it was cancelled on 11.03.1938, and (ii) in Ext.X-1 & Ext.X-2, it
gives the date as 23.12.1938. The first appellate court has taken
exception to the non-production of the very proceedings of the Sub-
Collector, but irrespective of the same, the plaintiff continued to be in
possession of item 1 even as the Devasthanam was put on notice that
the former was asserting independent title over item 1.
c) Another intriguing feature on this aspect is that in the written
statement of the 3rd defendant, it is alleged that sometime in 1949 the
plaintiff‟s predecessor-in-office had again clandestinely had item 1
sub-divided, and that the defendants have taken steps to have the same
rectified to restore status quo ante. This implies that the 3rd defendant
Executive Officer of the Devasthanam, after the alleged cancellation
of sub-division of S.No:862/2 in 1938, there was a subsequent sub-
division of S.No:862 in 1949, but he did not choose to produce any
records pertaining to it. What evidentiary value should now be
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assigned to the alleged cancellation of subdivision by which
S.No:862/2 was created in 1938?
d) An allied issue to the one discussed in (b) above is the argument that
that when there is no survey field as S.F.862/2, the plaintiff has
described item as one falling in Sy.No:862/2. The utility of a survey
number for describing the property in dispute in terms of Order VII
Rule 3 CPC is only to avoid ambiguity in identifying the subject
matter in dispute. However, there is hardly any confusion or dispute
regarding identity of the item 1 property in this case.
e) The next fact is that the Tahasildar had issued Ext.A.15 notice, dated
06.08.1948, under Sec.7 of the Land Encroachment Act, 1905, as if
the Pulipani Swamigal was an encroacher of poromboke land.
However, on 12.10.1949, the Sub Collector directed the Tahasildar to
drop the proposed eviction proceedings Vide Ext.A18. If the property
was a poromboke, then why the proceedings initiated under the Land
Encroachment Act was dropped?
f) On 30.06.1938, vide ext.A14, the Palani Municipality had granted
permission to Boganatha Pulipani Swamigal, who was the Pulipani
Swamigal of the time, to bury the mortal remains of his family in item
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1. And, when Boganatha Pulipani Swamigal died, his mortal remain
was buried only there. The Devasthanam did not raise any objection.
70. While it may be true that leasing a portion of item 1 property in 1877 or
obtaining a decree for his suits for eviction of tenants or paying property tax
may not affect the true owner of the property, the defendants are still on the
backfoot to establish that the Devasthanam has a better title than the
plaintiff.
71.1 And to the final limb of the defendant‟s case: The plaintiff is granted
possession of item 1 since he and his predecessors-in-office are servants of
the temple. It may be stated that there is a Durgai Amman temple of which
the plaintiff is the officiating priest. For this he was paid salary as seen in
Ext.B2 acquittence register dated 02.06.1935. This Durgai Amman temple
is also known as “Bhuvaneswari amman, and is at the hill top, in the Bogar
Samadhi. Vide, Ext.B3, dated 07.10.1948, the then Pulipani swamigal had
authorised his son, the plaintiff in the suit, to receive the salary payable to
the former for the Durgaimman temple, and this is seen done under Ext.B4.
Then there are certain departmental proceedings suspending him etc., which
are referred to in the discussion in Part B. But can this allowed to
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characterise plaintiff and his predecessors-in-office holding continuous
possession of item 1 for 5000 years now as an aspect of their service to
Durgai amman? This Court finds that it cannot, and the reasons are:
a) Historically Pulipani Swamigal had been performing pooja to the
principal deity Dhandayudapani until he was replaced by Brahmin
Sivacharya by Dalavoy Ramappier at the turn of 17 th century. As
found earlier, despite the fact that they had lost their right to
perform pooja to the principal diety, successive Pulipani Swamigal
continued to be in possession of item 1. If only item 1 was given
as a perquisite for officiating as the priest, then they should have
lost possession of item 1 simultaneously when they lost the right to
perform pooja to Dhandayudaswami. That however, did not
happen. Indeed, Ext.A6 provides a different story, which has not
been adequately explained.
b) D.W4 examined on behalf of the defendants categorically admitted
that the plaintiff is not a temple servant and that his name does not
find a place in the temple records as a servant of the
Dhandayudapani temple. They further admitted the fact that the
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suit property is not shown as temple property in the temple register
maintained under Sec.29 of the HR&CE Act.
c) The mortal remains of previous Pulippani Pathira swamigals were
interned in the suit property and it is also known by the name
Agadi Samadhi.
d) Both in Ext.A3 publication of the Devasthanam, at pages 4 and 10
it is stated that there are a number of ashrams around the Giri
veedhi, and that ―a successor of Pulipani in the person of Sri-la-
Sri Bhoganatha PulipaniPatra Udayar is believed to be presiding
over the matam bearing his name in the Giri Veedhi.” There is no
whisper about any service inam of the kind which the
Devasthanam now contends is seen even remotely made in this
passage. (But the Devasthanam is in denial mode and has even
gone to extent of making insulting statements about the plaintiff in
its written statement)
e) As would be seen later, the discussion in Part B throws up a
possibility that the Pulipani Swamigal might be a priest of
Durgaiamman, and despite this judgement, it is likely to continue
in the realm of a possibility for some more time. (The curious
kinds may have to read the result of Part B to know it). Even if it
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is ulmitately found that the plaintiff is a priest and hence servant of
the temple, it could have arisen only after the H.R. & C.E. has
begun exercising its administrative control over the deity to which
the Pulipani Swamigals have been offering pooja. The situation is
nascent, hardly few decades old, and is more akin to Ramappier
taking away the right of the Pulipani Swamigal to perform pooja to
deity Dhandayudapani. The only difference is that in the place of
Ramappier, it was the H.R. & C.E. that may have taken control
over the administration of Durgaiamman, and may have reduced
the Pulipani Swamigal to a temple priest. But it has little to upset
the title which the plaintiff has established based on the doctrine of
res nullius and pedis possessio.
The inferences that now emerge from the entire discussions thus for made
hardly support any possibility that the plaintiff and his predecessors-in-
office have been in possession of item 1 only because they were servants
of the temple. There is nothing on record to even suggest that a case of a
service inam as is attempted to be canvassed by the defendants/appellants
could be a remote possibility. Necessarilly this argument too fails.
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71.2 It may be added here that the problem of the H.R. & C.E.
Department appears to be that it has failed to realise that it had come into
existence only in 1951, and that it has no authority to re-write history to
suit its present day convenience. It is advised to better accept the reality
that it has merely inherited a certain legacy with the solitary purpose of
managing the affairs of the Palani temple, and not to manipulate facts to
stake claims to that which it is not entitled to in law.
71.3 Turning to Substatial Question (b), in the face of overwhelming
evidence aided by the law on the topic, establishing the case of the
plaintiff vis-a-vis the claim of his title over item 1 property, the burden to
prove the contra necessarily is on the defendants/appellants. Therefore
the first appellate court cannot be faulted for fixing the burden on them.
The question is decided against the appellants.
Conclusion:
72.1. This court is informed that the plaintiff had given up its entitlement
to recover the portions occupied by the constructions made by the
Devasthanam which are described as item 3 and item 4 in the plaint. The
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appellate court has also granted a decree except the portions occupied by
the constructions made by Devasthanam.
72.2 This Court finds that the plaintiff has established the preponderating
possibility of his title to item 1, though based on a different set of
doctrines. Necessarily these appeals must fail, and accordingly the decree
of the first appellate court in A.S.No.78 of 2001 stands confirmed. No
costs.
PART B
O.S.106 of 1999
(Suit for management of Bogar Samadhi)
Pleadings in O.S.No.106/1999:
A. The case of the plaintiff:
73.1 The dispute relates to plaintiff‟s right to exclusive management of
Bogar Samadhi, or the burial place of Bogar. Both the main temple – the
Dhandayudapani temple and Bogar Samadhi are situated within the same
compound. The compound has a single entry point. Within the compound
the main shrine for Dhandayudapani is situated on the east where the deity
faces the west. Outside the main temple, but in the inner corridor (and
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within the compound) and to the south-west of the main temple, is situated
the Bogar Samadhi.
73.2 According to the plaintiff the deity of Dhandayudhapani was
consecrated and worshipped by siddha Bogar, that Bogar “entered samadhi
at the moolasthanam” (the sanctum sanctorum of Dhandayudapani), which,
as earlier indicated is separated by a fair distance from the subject of this
suit – the Bogar Samadhi.
73.3 The outer compound has its separate lock and key and so also the main
temple. Bogar Samadhi has its separate keys. The dispute arose only with
regard to the custody of the keys of Bogar Samadhi. This is the setting.
74. As in the earlier case discussed and decided in Part A, the plaint in this
case also rests the cause of action for its institution on the foundation of the
same set of historical facts. In particular, the plaintiff refers to Bogar, Adhi
Pulipani and also plaintiff‟s lineage to the latter, and then proceeds to allege
that Bogar Samadhi at all times has always been managed by the plaintiff and
his predecessors Pulipani Pathira Swamigal. The plaintiff further alleges:
a) The keys of the main entrance (at the compound) are with the
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Executive Officer of the Palani temple, but the keys of Bogar Samadhi
are with the plaintiff.
b) While so, on 07.11.1982, Vide Ext.A52, the Executive Officer of the
temple, (the appellant herein) had communicated the decision of the
Board of trustees of the temple to share the custody of the keys of
Bogar Samadhi – one with the Peshkar of the temple and another with
the plaintiff for protecting the invaluable „maragatha lingam‘,
(emerald shiva-lingam). On 10.11.1982, the plaintiff had issued his
Ext.A53 reply, informing that he is entitled to retain the custody of the
keys of both the locks of Bogar Samadhi. While so, the Peshkar of
the temple demanded the plaintiff to hand over the keys ostensibly for
providing greater security.
c) On principle the plaintiff is not averse to the idea of providing
adequate security, but that should not interfere with the plaintiff‟s
right of management over the Bogar Samadhi.
And, the suit is duly laid for declaration that the plaintiff alone would be
entitled to the sole management of Bogar Samathi and for consequential
injunction.
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Pleadings of the Defendants:
75. The Executive Officer of the Devasthanam (the first defendant in this
suit) had filed his written statement. (He was arrayed as the 3 rd defendant in
O.S.105/1999. Part of his pleadings is also found in his written statement in
that suit). The defence raised is:
a) The plaintiff and his ancestors are mere officiating poojari or priests
of Goddess Bhuvaneshwari and Bogar shrine in the south western
corner of the inner corridor of the temple, and they were holding
office at the pleasure of the Mirasi Pandarams before the temple
came under statutory regulations. They are mere temple servants and
no more. Indeed, even the pandarams to whom the plaintiff and his
ancestors owe their appointment to are only the servants of the
temple.
b) Bhuvaneshwari and Bogar temples came under the administrative
control of the Palani Devasthanam. Indeed for the services which the
plaintiff renders, he receives paditharam in cash, besides 1/8th
measure of ghee per day and 'pattai satham', or the 'neivaidhyam'
offered to the deity. He also receives a cash payment called
'Navarathri Sudantram'. These are the perquisites of a temple priest,
and are attached to the office.
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c) On 11.12.1947 vide Ext.B22, the predecessor of the plaintiff was
placed under suspension for acts of indiscipline and misbehaviour.
He was relieved of his office and the responsibility was handed over
to one Kaliappa Pandaram, and this was challenged by the plaintiff's
ancestor before the Commissioner, H.R. & C.E. Board, and this came
to be dismissed vide Ext.B23 order, dated 24.01.1949.
d) Again there was another proceedings vide Ext.B24 dated,
09.01.1953. against the plaintiff's predecessor and it was challenged rather
futilely. Indeed, the plaintiff‟s predecessor was fined Rs.15/-for certain
damages to a tamarind tree, which led to the initiation of action under
Ext. B25.
e) So far as the present suit is concerned, at the place where Bogar
Samadhi is situated, a double-lock system was introduced, and
accordingly notice dated 07.11.1982 (Ext.B.52) was issued for the
purpose. It is essentially intended to protect the emerald Shivalingam
at Bogar Samadhi. The plaintiff has twisted the meaning of double
lock system to suit his own convenience. Bogar Samadhi contains
very ancient emerald sivalingam and other statues and jewelleries.
The decision to have double lock system is essentially based on the
resolution dated 30.10.1982 passed by the Board of Trustees of the
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temple. The double lock system enables neither the plaintiff nor the
temple authority to have access to the Bogar samadhi alone. The
plaintiff is merely a custodian of jewelleries and other valuables in
Bogar Samadhi, which he is holding in his capacity as the temple-
servant, and it has little to do with his claim of exclusive right of
management of Bogar Samadhi. The plaintiff has no exclusive right
to manage the Samadhi.
Issues and the findings of the Trial Court:
76.1 The trial court had framed six issues, of which only the 3 rd issue is
critical to the case. It reads: “Whether the management maintenance and
custody remain only with the first defendant?‖ In other words, the nature
of the pleadings on which the parties chose to litigate does not involve a
dispute seeking a decision as to whether the Bogar Samadhi constitute a
religious institution within the meaning of Sec.6(18) of the H.R. & C.E. Act.
The defendants did not raise any dispute on the maintainability of the suit
before the civil court under Sec.108 of the Act either, and hence no issue as
to whether Bogar Samadhi constitutes a temple or a religious institution was
ever framed by the trial court. Notwithstanding the same, arguments were
still heard on the maintainability of the suit in the second appellate stage,
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and they will be considered later.
76.2 Having stated thus, it may have to be added that the trial court did
examine the character of Bogar Samadhi and whether it qualifies to be
termed as a religious institution. For supporting its view, the trial court had
drawn inspiration from a passage from the judgement of Viswanatha Sastri J
in T.R.K.Ramaswami Servai and another Vs The Board of
Commissioners for the Hindu Religious Endowments, [(1950) 2 MLJ
511)], as well as the observation of the Supreme Court in Nagu Reddiar &
Others Vs Banu Reddiar & Others [AIR 1978 SC 1174 . It then
proceeded to reject the contention of the plaintiff that he and his
predecessors-in-office have been in the exclusive management of Bogar
Samathi and held that the plaintiff is only a temple priest and no more. Its
line of reasoning is:
a) While the plaintiff claims that he is the adheenakarta of
Dhandayudapaniswami temple, Ext. B2 and B4 acquittance roll show
that the plaintiff and his father had received remuneration for the services
rendered by them as archaka or poojari (temple-priest). Ext.B20 is a
communication from the plaintiff‟s predecessor, dated 25.07.1955,
authorising his son, the plaintiff herein, to receive the remuneration.
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b) Ext.B5 is a revision petition, dated 01.05.1953 given by the
predecessor-in-office of the plaintiff, wherein he had complained that
the Executive Officer of the temple (the first defendant herein) did not
pay the remuneration for the services rendered.
c) Ext.B6 is the Order of the Commissioner of Hindu Religious
Endowment, dated 10.08.1953 suspending the then Pulipani
Swamigal (father of the plaintiff).
d) Exts.B11, B12, and B13 are counterfoils of the archana tickets sold
by the Devasthanam vis-a-vis the Bogar samathi.
Findings of the First Appellate Court:
77. As observed elsewhere in this judgement ( in Part A), the first appellate
court‟s style of articulating its idea in reversing the findings of the trial court
lacks clarity, but what could be gathered is that it has granted a decree in
favour of the plaintiff based on its finding that the plaintiff and his
predecessors in office have been continuously in the management of the
affairs of the Bogar samathi.
The Second Appeals:
78. Challenging the said decree of the first appellate court, the present batch
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of second appeals are filed. As stated in paragraph 14 above (refer Part A),
substantial questions were framed in common, and the only substantial
question (f) is relevant to this case. It reads:
―Whether the appellate court right in reversing the well said
findings of the trial court that the status of the respondents is
nothing more than a poojari of the Bogar Samadhi which is a
temple within the purview of the Hindu Religious and Charitable
Endowments Act attached to the appellant temple?‖
The Arguments
For the Appellants:
79. Broadly, the learned Advocate General as well as Mr. AR.L. Sundaresan
adopted the line of reasoning of the trial court while advancing their
argument in aid of the appellants. But they made a marked deviation from it
when they argued on the maintainability of the suit. Their submissions are
summed up as below:
a) The suit is not maintainable on a combined reading of Sections 108,
and 6(18) and 6(20) of the Hindu Religious and Charitable
Endowments Act. In terms of Section 108 of the Act, civil suits are
barred in respect of any dispute relating to administration or
management of a religious institution and the same may have to be
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decided only under Sec.63(a) of the Act. Inasmuch as the cause of
action in the suit falls within Sec.63(a) of the Act, civil court
jurisdiction is expressly ousted under Sec.108 of the Act. More so
when samadhi is brought within the definition of a religious
institution under Sec.6 (18) of the Act vide T.N.Act 26/2012 (which
came into force on 27.06.2012).
b) The plaintiff‟s case is ambivalent. While in paragraph No.6 of plaint
in O.S.No.105 of 1999, he claims that he is a priest of Bogar Samathi,
whereas in paragraph 10 of O.S.No.106 of 1999, he claims himself to
be in management of the Bogar Samadhi, a religious institution.
Indeed, even in his evidence as P.W.1, the plaintiff introduces himself
as a priest performing poojas at Bogar Samadhi. If Bogar Samadhi
falls within the definition of Sec. 6(18) of the Act, then its
management can only be with the H.R. & C.E. Department and not
with any individuals.
c) The plaintiff's predecessor was suspended by the H.R.&C.E. Board,
and the documents pertaining to his suspension and subsequent
revocation by the H.R.&C.E. Board proved that he is only a temple
servant.
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d) Exhibits B11, B.12 and B.13 are the archanai tickets, and were issued
by the Devasthanam for the Bogar Samadhi. Indeed, P.W.2 had
categorically admitted it. He has also admitted that the Devasthanam
would share the portion of the income from the sale of archanai
tickets with the plaintiff.
e) The maintenance of the Bogar Samadhi has been undertaken by the
Devasthanam. P.W.1 in his cross examination has admitted that the
flooring of the Bogar Samadhi was laid by the Devasthanam, and so
was the electricity charges. This apart, he has also admitted that all
the items necessary for performing pooja at Bogar Samadhi too are
being provided by the Devasthanam. Hence the plaintiff's claim that
Bogar Samadhi is under his management is false on the very face of
the documents.
For the first respondent / plaintiff:
80. In response, Mr. V. Raghavachari, the learned counsel for the plaintiff
argued:
a) The appellant/ the first defendant Executive Officer contends that the
plaintiff was only a temple servant and that he has been allowed to
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stay in the property at the foothills only as a servant of the temple.
The plaintiff has given letter dated 27.10.1984, marked as Ext.P56, in
which he had sought the production of the property register of the
temple and other documents. The appellant had failed to produce the
documents sought and hence adverse inference necessarily has to be
drawn against it.
b) D.W.4, admitted that the plaintiff's name is not recorded in any of the
registers maintained by the temple either as servant or mirasi
pandaram.
c) The belief is that there is a tunnel that connects the Bogar samadhi
with the sanctum sanctorum of Dhandayudapani, and Bogar had
entered the tunnel and attained nirvikalpa Samadhi beneath the
sanctum sanctorum, or thereabouts, and he never returned. He is still
believed to live, and at any rate he has never left his mortal remains
for it to be interned. Therefore, notwithstanding its name as Bogar
Samadhi, the body of Bogar was not interned at the place where his
Samadhi is. Hence, Bogar Samadhi does not fall within the definition
of „samadhi‟ within the meaning of the Explanation (1) of Sec.6 (18)
of the Act. This would imply that Bogar Samadhi cannot be termed as
a religious institution, and hence does not qualify for the H.R. & C.E.
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to exercise its administrative jurisdiction over it. Therefore, unless a
samadhi, including Bogar samathi falls within the definition of
Sec.6(18) of the Act, no Samadhi can qualify to be treated as a
religious institution within the meaning of the Act, and consequently,
the H.R. & C.E. cannot wield administrative control over any samadhi
including the Bogar Samadhi.
d) So far as the main temple of Dhandayudapani is concerned, the
temple is not closed in the afternoon, whereas „nadai, or the door of
the Bogar Samadhi is closed every afternoon. This is admitted by
D.W.4. It may appear inconsequential, but it is significant in the
context of the right of management of the Bogar Samadhi, for if only
it were to be under the management of the Devasthanam, it would not
have been closed during the afternoons.
e) So far as Exts.B11 to B13, the counterfoil of the archanai tickets are
concerned, Exts.B11 and B13 relate to the Danadayudapani temple,
and only Ext.B12 purports to relate to Bogar Samathi. However, it is
dated from 14.10.1984, which is after the institution of the present
litigation. Hence, it does not merit consideration. Turning to sharing
the income from the sale of archanai tickets about which P.W.2 has
spoken to in his cross examination, this has to be considered in
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conjunction with Exts. B2 and B4 which show that they pertain to
Durgaiamman temple and not Bogar Samadhi. And merely because
Durgaiamman (also known as Bhuvaneswari amman) is in the Bogar
samathi, it should not be considered as referring to Bogar samadhi.
f) So far as the alleged suspension of the earlier Pulipani Swamigal by
the Executive Officer is concerned, it was later cancelled by the
Executive Officer himself and this is noted in Ext.B23 Order of the
Commissioner, dated 24.01.1949. There was a second suspension of
then Pulipani Pathira Swamigal by the Executive Officer vide
Ext.B24 dated 09.01.1953, for the alleged cutting down of a tamarind
tree in which the latter had also framed charges on 09.02.1953, and
also forcibly handed over the Bogar samadhi and the articles there
under Ext.B8 through the temple Peishkar to one Kuppusamy
Pandaram. The plaintiff however, challenged the authority of the
Executive Officer to suspend him as could be seen from Ext.B5
Revision Petition before the Commissioner, in which he had
contended that he was not a mirasi pandaram, or a temple priest and
hence he was not amenable to the administrative control of the
Executive Officer. This revision might have been dismissed by the
Commissioner vide Ext.B6 order, dated 10.08.1953, but the fact
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remains that the plaintiff had raised his exclusive right to manage the
Bogar Samadhi even in 1953, which is a relevant fact under Sec.13 of
the Evidence Act.
g) D.W.1 further admitted the possession of the plaintiff and also the fact
that the plaintiff has been doing poojas at Bogar Samadhi for more
than 30 years prior to the date of his examination.
h) Under Sec.107 of the Tamil Nadu HR&CE Act, right granted under
Article 26 of the Constitution of India is insulated from the application
of the Act as it is not meant to affect any pre-existing rights of the
citizen.
Reply Arguments of the Appellants:
81. In response Mr. Sundaresan, the counsel for the appellant argued that
the contention of the plaintiff that because the mortal remains of Bogar was
not interned at Bogar Samadhi, notwithstanding its name as Bogar samadhi
and hence it will not fall within the definition of a religious institution
within the meaning of Section 6(18) of the Act. But, this is a rearguard
action in desperation. This is because the Act has been amended to include
'Samadhi' within the definition of Sec. 6(18) of the Act. Therefore, when
once Bogar Samadhi comes within the definition of Sec. 6(18) of the Act,
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necessarily, the claim of administration or management of Bogar Samadhi, a
religious institution by definition, will be hit by Section 108 of the Act.
Alternatively, even if it is considered that it is not a 'Samadhi' as claimed by
the plaintiff, then, it will constitute a temple within the meaning of Section
6(20) of the Act, and again, it will be hit by Section 108 of the Act.
Discussion & Decision
On Maintainability of the suit
82.1 The substantial question as framed is directed at establishing or, to be
precise, re-establishing the findings of the trial court that the plaintiff is no
more than a priest of the Bogar Samadhi and that he is only a servant of the
Devasthanam. But, it is adjunct on two supplementary issues: (a) Whether
Bogar Samadhi is a temple or a religious institution as per the definition of
H.R & C.E. Act; and (b) has Bogar Samadhi been under the management of
H.R. & C.E. or to be more specific under the Palani Devasthanam? The
trial court addressed the first, but did not pointedly address the second
(based on the evidence which the rival parties herein have relied on to build
their respective arguments now). And, when the dispute reached the first
appellate court, it oversimplified its approach to the issue.
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82.2 To this now a third issue is required to be added: Whether Bogar
Samadhi will fall within the definition of a „Samadhi‟ within the meaning of
Explanation (1) to Sec. 6(18) of the Act as to constitute a religious
institution. This has become necessary owing to the amendment of Sec.6
(18) by which „Samadhi‟ was included in the definition of a religious
institution.
83. It has therefore become necessary to understand the law on the subject
before and after the amendment of Sec.6(18). As stated earlier, the trial
Court has relied on the ratio in Nagu Reddiar & Others Vs Banu Reddiar
& Others [AIR 1978 SC 1174] to support its finding that Bogar Samadhi is
a place of worship, since its judgement was delivered before the 2012
amendment to the H.R. & C.E. Act.
84.1 In T.R.K.Ramaswami Servai and another Vs The Board of
Commissioners for the Hindu Religious Endowments [(1950)2 MLJ
511(FB) : AIR 1951 Madras 473], the Court was considering a challenge to
the validity of an order passed by the Board constituted under the Madras
Religious Endowment Act, 1927, on the ground that it lacked jurisdiction
under Sec.84 of the said Act. The question was whether a temple under
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construction with an idol of Alargarsamy to be installed and consecrated
under a certain deed of endowment, would fall within the definition of a
temple and whether the Board had jurisdiction to decide a dispute viz-a-viz
its character. In his separate judgement Viswanatha Sastri J has opined that:
"43. It is common knowledge that there are in this Presidency
many institutions of a mixed character, whose exact place among
religious and chatitable foundations is likely to be a matter of
doubt or dispute. There are some samadhis or tombs and
sepulchres of holy men, where an image of Siva is usually installed
and worship, regular or occasional, is offered. Some of them have
come to be considered as public temples by reason of the sanctity
of the persons interred. There are private mausoleums where idols
are installed and pooja offered, but which are not temples or
temples as defined in the Act, becuase the public either do not care
or not allowed to worship at such places; ...... ...... ...... .......
45. ...... ...... ...... ...... If the public or that section of the public
who go for worship consider that there is a divine presence in a
particular place and by offering worship at that place, they are
likely to be the recipients of the bounty or blessings of God, then,
you have got the essential features of a temple as defined in S.9,
cl.(12) of the Act. ...... ...... ...... ......."
In C.Ratnavelu Mudaliyar Vs Commissioner for the H.R. & C.E. [(1953)
II MLJ 574 : AIR 1954 Madras 398], this court has held that a samadhi or a
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tomb of a certain Apparswami is a place of religious worship, because it was
come to be recognised as temple for over a century.
84.2 The above view of Viswanatha Sastri. J in T.R.K.Ramaswami Servai
came to be considered by this court in Ramanasramam by its Secretary Vs
The Commissioner, H.R &C.E. [(1960) II MLJ 121], where
Anathanarayan.J (at page 133) has held that, “Divorced from their contexts,
such observations ought not to be interpreted as supporting a theory or
thesis which would be opposed to the very purpose and scheme of the Hindu
Religious and Charitable Endowments Act.”. Having observed thus, the
learned Judge has also held in the opening of the same paragraph that, a
“Samadhi over on who comes to be regarded as of the Illumanati or even the
tombs of heroes, may evolve in course of time as a shrine of Hindu public
religious worship.” In Ramanasramam case the issue was whether the
Ramanasramam with the Samadhi of Bhagwan Ramana Maharishi would
fall within the dentition of a temple under Sec.6 (17) of the Madras Hindu
Religious and Charitable Endowments Act, 1951.
84.3 All the above mentioned judgements of this Court came to be referred
to by the Hon‟ble Supreme Court in Nagu Reddiar case [AIR 1978 SC
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1174]. That was a case which arose from a suit for removing a trustee and
for framing a scheme for certain charity. And, the Hon‟ble Supreme Court
embarked to enquire what constitutes a charity in Hindu law. The Supreme
court has observed that:
―The samadhi of saint Pattinathar is considered as a place of worship
in Tiruvottiyer near Madras. According to tradition great saints have
attained Yoga Samadhi in well known pilgrim centres: Saint
Tirumoolar attained Samadhi at Chidambaram, Saint Konganavar at
Tirupathi, Saint Valmiki at Srirangram and Bhogamuni at Palani‖
Now, notwithstanding the fact that the list of examples given by the Hon‟ble
Supreme Court, includes the Bogar Samadhi which could qualify for being
treated as a place of worship, the same cannot be considered as a finding,
since the Supreme Court was not required to decide an issue as to whether
Bogar Samadhi was a temple or a religious institution. But this required to
be done in this case based on the pleadings and evidence provided before
this court, more significantly in the context of the amendment of Sec.6(18)
of the Act.
85. It is evident from the context in which the Hon‟ble Supreme Court has
cited the Samadhi of Bogarmuni in Nagu Reddiar case, that it was not
intended to be a finding on the character of Bogar Samadhi since it was not
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in issue before the Supreme Court. However, in the present case this has
arisen as a specific point to be considered, and it is required to be probed
based on the law on the subject. Here, it appears that even the
defendants/appellants appear to have joined hands with the plaintiff as they
did not object to the maintainability of the suit in terms of the embargo
under Sec.108 of the Act even though they had an opportunity to plead that
inasmuch as Bogar Samadhi is a place of public religious worship within the
meaning of Sec.6(20) of the Act, it is a temple, and hence will fall within the
definition of a religious institution under Sec. 6(18) (as it was before its
amendment in 2012), and therefore, any dispute over its management would
fall within Sec.63(a) of the Act.
86.1 Now that Sec.6 (18) has undergone an amendment vide Act 26 of 2012,
and since the issue vis-a-vis the character of Bogar Samadhi is still pending
consideration, this court is under an obligation to take note of the change in
law and is required to evaluate the merit of the issue on the basis of
amended Sec. 6 (18). It reads:
―Religious institution‖ means a math, temple or specific
endowment and includes,: —
(i) a samadhi or brindhavan; or
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(ii) any other institution established or maintained for a religious
purpose.
Explanation.- For the purpose of this clause-
(1) ―samadhi‖ means a place where the mortal remains of a
guru, sadhu or saint is interned and used as a place of public
religious worship;
(2) ―brindhavan‖ means a place established or maintained in
memory of a guru, sadhu or saint and used as a place of
public religious worship, but does not include the samadhi;
86.2 The likely implications of the amended Sec. 6 (18) of the Act are:
(a) Prior to the amendment, the question whether a samadhi will
qualify for being termed as a religious institution must satisfy the
parameters prescribed for ascertaining a temple under Sec.6(20) of
the Act, more specifically, if it constitutes a place of public
religious worship of the Hindus or any section thereof. All the
judicial pronouncements that were delivered prior to the
amendment have attempted to test the issue only on this criterion.
This had an advantage, for whether a Samadhi is a place of public
worship within the meaning of Sec.6 (20) will be a question of fact
and may have to be decided on the facts of each particular case.
Not any more, since under the amended Sec. 6(18) „samadhi‟
forms a separate class of religious institution, and is distinguished
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from a temple with a special definition under Explanation (1) of
the Act.
(b) Sec.6 (18) is an inclusive definition as it opens with the phrase
“Religious institution‖ means a math, temple or specific
endowment and includes,‖ a Samadhi. The legislative intent here
does not appear to stretch the definition of a temple to include a
samadhi, but only aims to expand the definition of a „religious
institution‟ to include a samadhi as a separate class.
(c) Thirdly, it erased the space available to the judiciary to examine
every case to ascertain if a samadhi constitutes a temple, and hence
a religious institution, as it has now provided a different test-kit for
its identification vide Explanation (1) to Sec. 6 (18). The criterion
provided are: (a) that it must be a place where the mortal remains
of a guru, sadhu or saint is interned; and (b) that it must be used as
a place of public religious worship.
(d) While the word „includes‟ in the opening line of Sec. 6(18) made
the definition of a „religious institution‟ broad and wide, the
expression „means‟ employed by the legislature in Explanation (1)
of Sec. 6 (18) made the definition of a „samadhi‟ narrower, and
consequently it demands a strict adherence to this definition for
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any samadhi to be considered as a religious institution. This would
mean that it may not be adequate that a samadhi is a place of
public religious worship, but it must also be a place where the
mortal remains of a saint or a guru or a sadhu is interned or buried.
In other words, to term a samadhi as a religious institution under
the scheme of the H.R. & C.E. Act, it may be necessary to satisfy
the twin criteria prescribed in the Explanation (1) to Sec. 6 (18)
simultaneously and not in the alternative. This is evident from the
use of the conjunction “and” between the two conditions stipulated
therein.
(e) An allied issue that now arises is, should the conjunction „and‟
used in Explanation (1) of Sec. 6(18) to link both the criteria must
be read as „or‟? It is least likely, for it then obviates the felt need
of the legislature to identify „samadhi‟ as a separate class of
religious institution, and reduces the amendment to a meaningless
legislative exercise. And, it also goes against the narrow definition
given to a „samadhi‟ under Explanation (1) of Sec. 6 (18).
87. Is then the Bogar samadhi a religious institution? This has to be tested
on the backdrop of the understanding of amended Sec.6(18) of the Act. It
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
may be that Bogar samadhi may be a place of public religious worship. But
that may satisfy only one of the two requirements as envisaged in the
Explanation (1) of the Act. The point therefore required to be investigated
is whether Bogar‟s mortal remains was buried or interned at the place which
is now known by the name as „Bogar samadhi‟?
88. The question may appear ridiculous, but not when one appreciates the
legend that goes with the Bogar‟s end. There exists a belief that Bogar
Samadhi, and the sanctum sanctorum of Dhandayudapani temple, which are
separated by a fair distance, is connected by a tunnel, and that Bogar had
walked into the tunnel and had attained „nirvikalpa samadhi‟ beneath the
sanctum sanctorum. To state it differently Bogar had not left his mortal
remains for anyone to intern or bury at the Bogar Samadhi. This belief finds
some expression in some of the materials available on record:
a) In Ext.A3, (a 1970) publication of the Devasthanam, it is mentioned
that Bogar entered the tunnel connecting the place where Bogar
Samadhi is now located and the sanctum sanctorum and never
returned and is believed to have attained nirvikalpa Samadhi.
(However, in Ext.A87, another publication of the Devasthanam in
1975, it is said that Bogar was buried at the place).
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and S.A.(MD) Nos.652 & 653 of 2022
b) Ext.A4 (a 1965 publication of the plaintiff) also speaks about the
belief that Bogar went into the tunnel and attained Samadhi.
c) In the plaint, the plaintiff makes a similar allegation, but it was not
denied by the defendant.
89.1 This Court does not consider it fair to rely on these materials to
enter a finding at this stage, when the need for it itself has arisen pendent
lite – during the pendency of the first appeal. Unlike the suit on title to a
piece of land at the foot hills (discussed in Part A), this Court cannot
presume that the aforesaid material have been produced by either side
with the consciousness of leading evidence on the point. Indeed there
was no occasion for the parties to lead evidence on this specific point
when they went to trial. This therefore, requires to be investigated.
89.2 It may be nigh difficult for any parties herein to produce any direct
evidence of a certain fact said to have taken place some 5,000 years ago.
This may have to be again tested as a belief, something that has formed
the foundation of this court‟s approach in Part A. This belief may have
found expressions in literatures, and the Court may have to consider
these literatures. But not today, not on the basis of the material which are
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
before this court, for it will be plainly unfair to both the parties. This
implies that this case has to be remanded back. This is required to be
read along with paragraph 93 below.
90.1. There are still two points which remain to be discussed. The first
relates to the jurisdiction of the civil court to entertain the issue in view
of the bar under Sec. 108 read with Sec. 63(a) of the Act. The other one
pertains to certain evidence which the defendants have managed to load
against the plaintiff.
90.2 First to the issue on maintainability of the suit. The
defendants/appellants contend that the suit is not maintainable, and the
issue now raised can be considered only by the authorities who are
empowered to do it under Sec.63 (a) of the Act. This literally begs the
question, since the issue itself has arisen only during the pendency of the
first appeal. And, it is a jurisdictional fact. For ascertaining if Sec. 63 of
the Act will apply at this stage, the civil court may have to test whether
the dispute raised can be considered only exclusively in terms of Sec.63.
And it depends on the finding whether Bogar‟s mortal remains were
interned at the samadhi. If it is found that it was not interned at the
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
Bogar‟s samadhi, then the answer to the issue will be known.
Jurisdiction is determined by the question/issue to be answered, and not
by the answer. However, if the answer is known, then inductively there
does not arise a need for a question for a tribunal or a quasi-judicial
authority to answer. This court therefore, holds that the jurisdictional
fact raised can be considered by the civil court.
On Evidence
91.1 This Court now turns to the evidence which echoed in the high
amplitude arguments of the defendants/appellants. As rightly argued by
the plaintiff's counsel, of the counterfoils of the archanai tickets
produced (Ext.B11 to B13) only B12 states it pertains to Bogar Sannathi
(and not Samadhi). And, it is dated after the institution of the present
suit, and hence it may not command substantial evidentiary value.
However, it may have to be appreciated alongside the testimony of P.W.1
and P.W.2 and also Exts. B 14. Ext.B14 is the „Register for Return of
Deposit for Archanai Tickets‟. Its relevancy in the context of this case
could not be adequately ascertained.
91.2 The next set of documents is Exts.B2 to B4 and B15. Of these
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
documents Exts. B3 and B15 inform that they relate to „paditharam‟ for
Durgaiamman temple. As per the Madras University Lexicon
„paditharam‟ (in Tamil) means „daily allowance to a temple‟. This
necessarily implies that Exts.B3 and B15 relate to the daily allowance
payable to Durgai amman, and not to the priest.
91.3 Ext.B2 and B4 are the acquittance register of the servants of the
temple. Are they relate to Durgai amman or Bogar Samadhi?
92.1 It is gatherable from evidence that the idol of Durgai amman (also
known as Bhuvaneswari) along with „maragatha lingam, or emerald
sivalingam, (the legend is that they were worshipped by Bogar himself)
are kept atop the Bogar Samadhi (presumably at the mouth of the tunnel
that connects it to the sanctum sanctorum of the principal deity
Dhandayudapani) and that they are not permanently installed. Now, if
Bogar‟s mortal remains were not interned at the Bogar Samadhi, then it
can be deduced that it may not possibly fall within the definition of Sec.
6(18), and hence the remuneration stated to have been paid to the
Pulipani Swamigal can only relate to Durgai amman. And, it may then
mean that the plaintiff might be a priest of the Durgai amman temple, but
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
it goes against the testimony of D.W.4 where he has deposed that the
plaintiff‟s name does not find a place in the register of temple servants at
all. In Exts. A 59 (page 9) and Ext.A 86 (page 10) publications
Devasthanam concedes that those who are in the lineage of Pulipani are
performing pooja at Boghar Samadhi. Still there are orders of
suspension of the plaintiff by the Executive Officer of the Devasthanam,
and also the handing over the charge vide Ext..24 read with Ext.B8 etc.,
They may have to be now fitted in the context of above facts – do they
indicate that the H.R. & C.E. authorities had acted within their powers or
in excess of their powers in suspending Pulipani swamigal, and even if it
were to be found that the authorities were within their powers to initiate
disciplinary action against the Pulipani swamigal, was it relatable to
Durgai amman or Bogar Samadhi? Parties have produced some
documents before this court, but neither side cared to provide a logical
link to their line of the contention based on the evidence for this court to
evaluate the probable strength of their respective case.
92.2 And there is a last issue. In the context of the prayer in the suit, what
if the Bogar Samadhi had already come under the administrative control
of the H.R. & C.E., even long prior to the 2012 amendment to Sec.
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
6(18)? If Durgai amman is under the control of H.R. & C.E., and if its
idol is on the top of Bogar Samadhi, could it be possible that H.R. & C.E.
had administrative control over Durgai amman and not Bogar Samadhi?
Therefore, in addition to the need for ascertaining whether Bogar
Samadhi falls within the definition of a samadhi within the meaning of
the Explanation (1) to Sec. 6(18), it is also necessary to ascertain if it has
already come under the control of H.R. & C.E. within the meaning of
Sec. 6 (20) even earlier to 2012 amendment. It definitely throws a
possibility that investigating into the issue as to whether it is a Samadhi
within the meaning of Sec. 6 (18) may become unnecessary. But it is
unavoidable. Here, both the trial court and the first appellate courts‟
efforts are not adequate.
Conclusion
93. Remanding the case back to the first appellate court now emerges as
an automatic choice for this Court. But it intends to record that this court
is painfully disturbed by this prospect, since it is more likely to delay the
final conclusion of this 40 years old case further. But that appears
inevitable when this court notices the significance of the issue raised.
This issue cannot hang in eternal suspense, nor can it be short circuited
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
by showing delay as the cause. It is not adequately fathomable if parties
have realised it, for if only they had, the issue could have been raised and
sorted out even at the first appellate stage, since the line of argument now
presented, was available to them even in the first appellate stage. No
court can afford to gamble on the rights involved merely because it may
delay the disposal of the case.
94. To conclude this court is now constrained to set aside the judgement
and decree of the first appellate court, and remands the suit back to it for
determining the following:
a) Whether Bogar Samadhi qualify to be termed as a Samadhi within
Sec. 6(18) of the H.R. & C.E. Act.
b) What do Exts. B14, read along with B2 and B4 and other
documents pertaining to the disciplinary action initiated against the
plaintiff read along with the oral testimony of the witnesses
suggest? Do they relate to Durgaiamman temple, or Bogar
Samadhi, or both?
c) Whether Bogar Samadhi had come under the administrative
control of the H.R. & C.E. even before the institution of the suit?
d) How far the amendment to Sec.6 (18) will impact the cause of
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
action of the suit?
e) What is the status of the plaintiff in the context of the prayer
sought in the suit?
95. Whether Bogar‟s mortal remains were interned, or is Bogar Samadhi a
mere symbolistic representation of reverence to Bogar may not be proved by
any direct evidence today, but can still be established as an aspect of belief
associated with siddha Bogar. This implies what has been done in Part A,
may have to be repeated here, but to a different contextual setting. Parties
are therefore granted liberty to lead both oral and documentary evidence in
aid of the above points. They may relate to historical facts and those
necessary to establish any belief associated with the cause of action, and
other relevant facts. And, if they are on historical facts, or on aspects of
belief associated with Bogar samadhi, it is needless to remind the first
appellate court that it has to weigh them within the meaning of Sec. 57 of
the Evidence Act. For a greater understanding, the first appellate court may
refer to Part A where it is discussed at length.
96. In conclusion the appeals are allowed, and the judgement and decree of
the first appellate court in A.S.No.79 of 2001, dated 23.06.2015 is set aside
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
and the matter is remanded back to the first appellate court to determine the
aspects herein above delineated in paragraph 94. Till it is decided, the
present status quo shall continue. No costs.
RESULT :
A] S.A.(MD) No.589 of 2015 and S.A.(MD) No.652 of 2022 (Title suit):
In the result these appeals are dismissed and the decree of the first appellate
court declaring the plaintiff‟s title to item 1 less the portions occupied by the
constructions made by the Devasthanam (described as item 3 and item 4) is
hereby confirmed. The appellants and its officials are further injuncted from
interfering with the peaceful occupation and enjoyment of the property over
which the plaintiff‟s title is hereby declared in any manner whatsoever. No costs.
B] S.A.(MD) No.590 of 2015 and S.A.(MD) No.653 of 2022 (Bogar
Samadhi)
The Appeals are allowed, and the judgement and decree of the first appellate
court in A.S.No.79 of 2001, dated 23.06.2015 is set aside and the matter is
remanded back to the first appellate court to determine the aspects herein
above delineated in paragraph 94 above. Till it is decided, the present
status quo shall continue. No costs.
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
Note: The judgement in this case is delivered beyond the six months period
prescribed by the Hon‟ble Supreme Court. But this is a sui generis case that
belongs to an absolutely unfamiliar genre. It demanded considerable effort,
reading of historical documents, intense focus and lot of legal research and
analysis on my part. Hence the delay.
01.03.2024
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
To:
1.The District Collector,
Dindigul.
2.The Section Officer
VR Section
Madurai Bench of Madras High court.
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S.A.(MD) Nos.589 and 590 of 2015
and S.A.(MD) Nos.652 & 653 of 2022
N.SESHASAYEE.J.,
ds/CM
Pre-delivery Judgment in
S.A.(MD) Nos.589, 590 of 2015 &
and S.A.(MD) Nos.652 & 653 of 2022
01.03.2024
https://www.mhc.tn.gov.in/judis
