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Judgment
K. Sampath, J.—The plaintiff in O.S. No. 171 of 1987 on the file of the Principal Subordinate Judge, Madurai is the appellant in A.S. No.
563 of 1989. The plaintiffs in O.S. No. 178 of 1982 on the file of the Principal Subordinate Judge, Madurai are the appellants in Tr. A.S. No. 504
of 2002. The range of hills going by the nomenclature Azhagar Hills in Chellappanaickenpatti Village, Natham Taluk, Anna District, measuring
15838.4 acres within stated boundaries is claimed by the plaintiff temple in O.S. No. 171 of 1987 viz., Arulmighu Kallalagar Tirukoil, Alagar Koil,
represented by its Executive Officer as belonging to it and recovery of possession as also injunction restraining defendants 1 and 2, who are
respectively the State of Tamil Nadu, represented by Collector, Anna District, Dindigul, and Chief Conservator of Forest, Tamil Nadu Forest
Department, Madras from in any way disturbing underground water source by digging well or in any other manner are sought.
The averments in the plaint in O.S. No. 171 of 1987 are as follows:-
2.1: the Temple is an ancient one and the plaint schedule Alagar Hills had always belonged to the plaintiff temple from time immemorial and are in
the possession and enjoyment of the plaintiff temple. There are several other shrines and sacred spots such as Madavi Mandapam, Sambakodu
Mandapam, Sri Rakkayee Amman, Vellimalai Andi of the plaintiff temple in the schedule mentioned hills. There are several sacred tanks and
springs such as ''Lingamma Naicker Vavi'', ''Narayana Theppam'', Hanumar Theertham, Garuda Theertham, Peria Aruvi, and Nupura Ganga -
which flows into a river Silambaru supposed to have sprung from Vishnu''s anklet- at various places in the Hills. The water from the various springs
is being used for the performance of rituals in the plaintiff temple. The holy water from Nupura Gangai is brought daily in pots by the priests for the
rituals to the sacred idol of the plaintiff temple. The priests have also been granted inams for bringing the holy water. The water from the river is
emptied in the irrigation tanks on the plains near the Temple. Many gardens have come up on the hills for the use of the plaintiff temple. The
pathways to the various places of sacred spots in the hills have been in existence and maintained by the Temple. Thus, the entire hills have always
been possessed and enjoyed by the plaintiff temple as its property. Worshippers had donated large number of cattle to the Temple. The cattle thus
donated are reared in the hills and the forests on the hills have been used as grazing area by the cattle. Thus, the forest area also has been in the
possession and enjoyment of the plaintiff temple from time immemorial. On the northern part of the hills is also situate Sri Alagar Koil. Successive
Governments starting from Pandia Kingdom, Nayak Kingdom, Mahomedan Kingdom and the British Regime had recognised the schedule
mentioned hills as belonging to the Temple, the Temple also has been using the forest produce from the hills by leasing out collection of honey, tree
barks cutting and in other ways. The fire wood from the forest in the schedule mentioned hills has been used in abundance in the kitchen of the
plaintiff temple called ''Madapalli''. the Temple also has been protecting the schedule mentioned hills by posting guards and by other means. In
1801 the East India Company assumed governance over the territory. Mr. Hurdis, the first Collector of Madurai and succeeding Collectors were
having superintendence and control over the Temple''s properties including the schedule mentioned hills. On the passing of regulation VII of 1817,
the Board of Revenue assumed control over the Temple''s properties including the schedule mentioned hills. All the previous records, deeds,
account books and other documents of the plaintiff temple were taken over by the Government. The income and expenditure relating to Alagar hills
were entered in the accounts of the Government to the credit of the Temple. From this it can be seen that the schedule mentioned Alagar hills was
administered and managed as the plaintiff temple''s property. The Board of Revenue had prepared a list of properties that belonged to the plaintiff
temple and Alagar hills was included as a property belonging to the Temple. In spite of several requests made on behalf of the plaintiff temple, the
list was not furnished to the plaintiff. In subsequent years the then trustee of the plaintiff temple required the Tahsildar of Melur, Deputy Collector
and Treasury Officer to grant copies of the Temple accounts maintained by the Taluk Office during the period the Board of Revenue was in
control. A clerk was appointed to write entries relating to the accounts of the Temple and certified copies were granted. In those copies the
expenses relating to the maintenance of Alagar hills, and the income derived therefrom are mentioned confirming the fact that Alagar hills was
administered by the Board of Revenue as the property belonging to the plaintiff temple. In the first settlement, Paimash Nos. 791 to 818 measuring
16832 acres were mentioned as hills and the other paimash numbers were shown as relating to the Temple, tanks, gardens etc., The classification
of the lands clearly reveals that these lands were in enjoyment and that the plaintiff temple had been in the possession and enjoyment of Alagar hills,
the schedule mentioned property. However, in the subsequent settlement the entire lands and paimash numbers 791 to 818 were surveyed as S.
No. 758. After the passing of Religious Endowments Act XX of 1863 the Government relinquished its supervision and control over all the Temple
properties and they were handed over to the respective temple committees to be formed as per the provisions of the said Act. The Government
handed over the records and documents relating to the management and the properties belonging to the Temples to the Temple authorities.
Unfortunately, the Government did not hand over the records, documents and list of properties relating to the management of the plaintiff temple,
nor were the properties including Alagar Hills, handed over to the plaintiff. The, then, temple committee was unaware that the schedule mentioned
Alagar hills belonged to the plaintiff temple as the Board of Revenue had not handed over the list of properties to the Temple committee.
2.2: In 1893 the Government declared the Alagar hills as a reserve forest as per the provisions of Section 25 of the Forest Act (hereinafter
referred to as ''the Act''). As per the provisions of Section 25 of the said Act, only forests at the disposal of the Government alone can be declared
as reserve forests. In the present case the Government having come to manage the properties pursuant to Regulation No. VII of 1817 wrongly
declared the schedule property as a reserve forest. As per general law, only unoccupied lands and forests are presumed to be the properties of
State. The suit property was never unoccupied lands. The plaintiff temple had been exercising right of possession and enjoyment even at the time
when East India Company assumed governance over the Territory. When the Government was exercising acts of possession and control, it was
only as a Trustee or Manager of the Temple as per the provisions of Regulation VII of 1817. The Government had no independent control or
possession of the property. Thus, the order u/s 25 of the Act declaring the schedule mentioned Alagar hills as reserve forest is wrong, illegal and
ultravires. By the said G.O., the Government cannot become the owner of the Alagar hills and get rid of their fiduciary relationship of a trustee
towards the Temple''s properties and refuse to hand back the hills to the plaintiff temple. There was protest over the Notification in the year 1925.
On 20.7.1926 the then temple committee of the plaintiff temple mentioned in the address of welcome to His Excellency the Governor of Madras
that schedule mentioned Alagar hills belonged to the plaintiff temple and thus protested the notification declaring Alagar hills as reserve forest. In
1938 the then trustee of the plaintiff temple Thiru K.N. Radhakrishnan sent a memorial to the then Government of Madras requesting inter alia to
restore back Alagar hills to the plaintiff temple. This was followed by. Section 80 C.P.C notice dated 4.8.1938. The Government received the
notice, but did not send any reply nor did they restore back the schedule mentioned Alagar hills. On receipt of the memorial, the Government
considered the matter. The District Forest Officer sent a report dated 27.3.1939 to the Conservator of Forests, Coimbatore about Alagar hills. A
copy of the said report was sent to the trustee of the plaintiff temple. In the said report, the Forest Officer has mentioned that the valley called
Thirusilambaru is the natural appendage of Alagar Koil because there are many shrines of Alagar Koil in the subsidiary places in the said valley. He
merely considered the question in his report whether the Temple administration could maintain the forests without maintaining the forests free of
thefts. The Government of Madras sent an order in G.O. No. 1289 Revenue dated 26.5.1939 stating that the request by the then trustee for
restoration of Alagar hills to the plaintiff temple was declined. The Government did not consider the legal question whether the Government was
under a legal duty to restore the hills to the plaintiff temple or not. There was no reply sent to the lawyer notice issued u/s 80 C.P.C.
2.3: The Forest Department is maintaining the Alagar hills. The actions of the officials of the Forest Department are causing trouble and hindrance
to the performance of religious rites in the various holy spots situate in Alagar hills. At the time of filing the suit, the forest officials in the process of
forming a deer park are digging a deep well near Theertha Thotti, where there is a natural water fall. The deity is used to be taken in procession to
Theertha Thotti every year and the water in the natural falls is used for religious purposes. The worshippers of the plaintiff temple also go in
abundance to the Theertha Thotti to have a holy bath, which is a sacred fall. The action of the forest officials affects the springs leading to the water
falls and in that process the water falls will become dry. The officials of the plaintiff temple sent telegrams to the officials of the Forest Department
to stop the digging up the well. They did not stop digging. Thus, the possession of Alagar hills with the Government is causing hindrance and
hardship to the performance of religious functions of the plaintiff temple in several holy spots within Alagar hills. It is no longer possible to allow the
Government to continue to have possession of Alagar hills. In these circumstances, the present suit has been filed for the reliefs already stated. The
suit is also not barred by limitation as the Government took possession of the property under the provisions of Regulation VII of 1817 as trustee or
Manager of the Temple and possession was not restored back as per the provisions under Act XX of 1863. In view of Section 10 of the
Limitation Act, the suit is maintainable. The suit is filed after 2 months from the date of receipt of Section 80 C.P.C notice by the defendants.
2.4: There are 77 documents listed in the plaint under Order 7 Rule 14 C.P.C. It is mentioned that the documents of the years 1835 to 1897 are
available with the Deputy Collector, Huzur Treasury, Madurai District. 75 documents are stated to be with the Government. The other two
documents are copies of Section 80 C.P.C notice with acknowledgments due respectively from the first and the second defendants.
The first defendant-State filed a written statement and the same was adopted by the second defendant. The contents of the written statement of
the first defendant are as under:-
3.1: The first defendant besides denying the title of the plaintiff temple to the suit Alagar Hills states further as follows:-There is a range of hills
called Alagar hills covered with forest of an extent of 6811.38 hectares and the boundary of R.F. 37.2 miles (containing 396 R.F. stones). The
Alagar Hills are reserve forests. They are notified under Notification No. 187 dated 11.10.1883 published at pages 719 to 721 of Gazette dated
13.11.1883. They are notified as Alagar Hills and not Alagar Koil. They are situate about 20 km north of Madurai City. The hills are the northern
boundary for Madurai City and its suburbs. Alagar Temple at the foot of the hills is a public temple and a pilgrim centre. The hills are called Alagar
Hills on account of the fact that it is situate adjacent to Alagar Temple in the plains. The shrines mentioned in the plaint as existing in the hills do
exist, but they do not belong to the plaintiff temple. They are independent shrines. The inams alleged to have been granted to the priests are not
within the limits of Alagar Hills and these grants were given to them for services rendered. The names given to the rivers as Silambaru and
Nupuragangai are of recent origin. Poets and Scholars have given interpretations regarding the origin of Silambaru, but they cannot be accepted on
their face value. The Public Works Department is looking after the maintenance of the irrigation tanks where the river empties itself. The water is
used by the general public. It is therefore not correct to say that the river Silambaru is considered to be the sacred river of the plaintiff temple and
venerated by the worshippers from time immemorial. Equally the river flowing on the northern slopes called Peria Aruvi and the other rivers
mentioned in the plaint do not belong to the plaintiff temple. Due to various geological formation and presence of vegetation, natural streams flow
from the hills. Nature does not belong to any individual and is vested with the Government. It is not correct to say that the schedule mentioned
properties were in exclusive possession and enjoyment of the Temple as its property. The plaintiff temple is not within the hills and on the contrary
away from the hills. The properties set out in the plaint were never owned by the Temple and they do not form part of the Temple. The springs
which come naturally are being utilised by the public after obtaining permission from the Forest Department. For cattle to graze, necessary grazing
permission is issued by the Forest Department, the Temple authorities sold away the cattle donated by the devotees in auction held every
Wednesday. There is no cattle grazing inside the reserve forest. Grazing illegally in the forest does not mean the rearing of cattle in the forest by the
plaintiff. The allegations regarding treatment and recognition of the schedule mentioned hills as belonging to the Temple by kingdoms and
successive Governments are false. Leasing out honey, tree cutting and the timber set up in the plaint is false.
3.2: The East India Company with their policy adopted throughout India avoided offending the religious feelings of the Hindus and they did not
prevent anybody from constructing temples and managing by themselves. On the establishment of British Government in India, they appointed
temple committees. They did not interfere with the religious affairs of anybody, the Temple committee was appointed only for the management of
the Temples. They never had any superintendence and control over the suit hills. It is not correct to say that the income and expenditure relating to
Alagar Hills were entered in the accounts of the Government to the credit of the Temple accounts. But the grazing and other leases, revenue and
expenditure are under the control of Forest Department in the Alagar Hills Reserve Forest. The income mentioned is only from the Temple and not
from the forest area. The allegation that from the perusal of the accounts of the Government in the Taluk Office, Melur, it could be seen that Alagar
Hills were administered and managed as the plaintiff''s property is false. Equally false is the allegation that in the list of properties the schedule
property was shown as the property of the Temple. The plaintiff has no title to the suit property and occasional user and expenses incurred for
such occasional use even if true cannot confer any title on the plaintiff in respect of the suit property. The very fact that in the first settlement
Paimash Nos. 791 to 818 were shown as hills shows that those Paimash Nos. were never enjoyed by the plaintiff temple. The fact that in the
subsequent survey it was included in Paimash No. 758 and the plaintiff temple not having objected to the classification is estopped from claiming
title to the suit property. The hills were not handed over to the Temple after the passing of Act 29 of 1863 as they did not belong to the Temple.
The entire hills belong only to the Government as also the Nadu Hills and Chembuki Hill adjacent to Alagar Hills. All the three hills have been
classified as reserve forests. The entire range of hills vest with the Forest Department as per Government''s Notification No. 187 dated
11.10.1883. The Notification has been made in accordance with the rules and regulations. Since it was a forest at the disposal of the Government,
it was so declared. The suit property was never in the occupation of any one, much less the plaintiff temple. It is false to say that the Government
was exercising right of possession and control as Trustee or Manager of the plaintiff temple as per the provisions of Regulation VII of 1887. The
Government is the owner of the property and has been asserting its right over the same. The Notification issued under the Forest Act has become
final and conclusive. The road leading to the holy bath is maintained by the Highways and Rural Works. For grazing, permission was issued to the
Temple by the Forest Department. Sale of tamarind minor forest produce and leases have been conducted every year in the hills by the Forest
Department. The Government has also sanctioned the post of Forester, Forest Guards for protection and maintenance. The entire suit property is
in the actual possession and enjoyment of the second defendant-Department. The plaintiff has no independent right over the suit property. The
plaintiff has been using the property and conducting festival only after obtaining necessary permission from the second defendant. The plaintiff never
disputed the title and always submitted to the authority of the 2nd defendant. Hence the plaintiff is estopped from disputing the title of the
defendants. As per G.O. Ms. No. 764 F & F Department dated 3.7.1984 forming a mini Zoo at Alagar Hills has been sanctioned by the
Government. Accordingly, a mini zoo has been formed. There is no proposal to dig a well and the proposal has been abandoned. The suit for mere
recovery of possession without declaration of title, when the title of the plaintiff has been denied, is not maintainable. The suit notice is defective.
The suit has not been properly valued. The suit is barred by limitation. Section 10 of the Limitation Act does not apply. There is no cause of action
for the suit. The suit is liable to be dismissed.
On the above pleadings the trial Court framed the following issues:-
Whether the suit property was in the possession and management of the first defendant on behalf of the plaintiff till the coming into force of Act
20 of 1863?
Whether the order bearing No. 187 dated 11.10.1883 issued by the first defendant is illegal and invalid?
Whether the Government Order dated 11.10.1883 changes the ownership of the property?
Whether Section 10 of the Limitation Act is not applicable to the present suit?
Whether the suit is barred by limitation?
Whether the first defendant is liable to hand over possession of the suit property to the plaintiff temple?
To what reliefs are the parties entitled?
On the side of the plaintiff Exhibits A1 to A45 were marked and one Ramasubramanian, Junior Assistant in the suit temple was examined as
P.W. 1. On their side, the defendants marked Exhibits B1 to B9 and examined one Subramanian working as Forest Officer as D.W1.
On the oral and the documentary evidence the learned Subordinate Judge held as follows:-
6.1: The plaintiff temple has not produced any document to show that the schedule hills belonged to it. It has also not been shown whether there
was any assignment, gift or endowment in respect of the hills in favour of the Temple. It is also not pleaded that the Temple acquired right by
adverse possession. Even if any such contention had been raised, it would not avail the Temple, the Temple cannot also ask for relief on the basis
of possession as it does not have possession. It cannot also be accepted that the suit temple is situated in a portion of the schedule hills and
therefore, the schedule hills should be deemed to belong to plaintiff temple. There are several other temples in the schedule hills and there is no
material produced to show that they are connected with the suit temple. Merely because there is a single Executive Officer to all the Temples, it
cannot mean that the other temples are the sub temples of the plaintiff temple. Permission granted for carrying on puja will not clothe the Temple
with any right in the schedule hills. Exs.A25 to A41 will show that even for leasing out for collection of honey and other products and for grazing
cattle in the suit hills, plaintiff had obtained permission from the Government. From a scrutiny of documents, it is seen that the Tahsilar had given
certain guidelines to be observed by the plaintiff temple. Only on the basis of the said guidelines the plaintiff temple had been enjoying certain rights.
If really the suit hills belonged to the plaintiff temple, no such permission would have been necessary. P.W.1 has also in his evidence accepted this
position. If some licence powers are given, it will not show absolute rights. From the documents produced on the side of the defendants and the
evidence of D.W.1, it is seen that steps were being taken even from 1881 to declare the suit hills as reserved forest, that the details relating to this
are set out in page 17 of Ex.B1, that prior to that, there were settlement proceedings from which it could be seen that the suit temple had rights of
passage till the Theertha Mandapam and also to cut across from Theertha Mandapam to the top slope and from there to Peria Aruvi and Pattam
Village hill and also permission subject to conditions for going to the small temple, that all these things would be evident from pages 25 and 31 of
Ex.B.1 which had itself been issued on the basis of the enquiry made by the Committee appointed by the Revenue Department in 1881. The
plaintiff has not disputed the enquiry and the report by the Committee constituted. It is not the case of the plaintiff temple that it was not given
sufficient opportunity to participate in the enquiry or that the enquiry itself was illegal. To put it short, the plaintiff temple had not challenged the
enquiry relating to Ex.B.1, at any time. It is also not raised in the present proceedings that the said enquiry will not bind the suit temple. There can
be little hesitation in concluding that the enquiry relating to Ex.B.1 and the consequent order based on the enquiry is legally valid and binding on the
plaintiff temple. The following particulars found in Ex.B.1 would also make the position relating to ownership of the schedule hills clear:-
Ex.B1, page 2 paragraph 8 serial number 21 runs as follows:-
ALAGHARMALAI, area 20.37 Square miles, all Government property, hill tracts, reservation important for climatic reasons, as well as fuel
demand for the future.
The Alagarmali (area 20-37 square miles) is in the Melur and Madura Taluks. Madura Town only about 10 miles distant from its southern
extremity, which has naturally long since been denuded for the firewood supply of that place. The supply is now chiefly drawn from the north
westernly slopes (where there are two jungle conservency reserves which we propose to include in the reservation now proposed), Temulimalai
and the Katchakutty jungles on the southern slopes of the Sirumalais. Adequate administrative arrangements should, of course, be made by the
Forest Department to prevent any abrupt curtailment of the firewood supply of Madura Town"".
Page 18- ""The records show that as regards these reserves, the Forest Committee have carefully inquired into, settled and recorded the several
rights and claims respecting each of them; and that the result of their inquiry, as embodied in their report, may be taken as a final settlement of all
the various rights involved. As there is no necessity for any further investigation respecting these reserves, the Government may be moved to
declare them outright as reserved forests u/s 25"".
Thus it would be clear that the suit hills belong to the Government and pursuant to Government order, they have been notified as Reserve Forest
and the plaintiff temple cannot claim any right contrary to Ex.B.1.
6.2: Again as per the provisions of Section 25 of the Act, the publication effected in 1881, was on the basis of the enquiry by the Committee
constituted for the purpose that it had reached finality and the plaintiff temple had no right whatsoever to question the same; there was no need to
send any notice u/s 6 that only if the rights had not been decided, there was need to send notice u/s 6 that any person who felt affected by the
notification could object to the same within a stated time and the plaintiff temple had not raised any objection at any time, that only a right of
passage had been given to the plaintiff temple that such a right is not derived to the plaintiff temple, nor have the defendants acted contrary to the
terms of such right in favour of the Temple.
6.3: The evidence on the side of the plaintiff temple is wholly inadequate to prove the right claimed by it. The evidence of P.W.1 clearly shows that
he had little or no knowledge about the suit hills and does not support the plaintiff''s case. Thus it has not been established that till the passing of
Act 20 of 1863, suit hills had been in the management and possession on behalf of the Temple. Order 187 dated 11.101.1883 is legally valid and
it has not changed the ownership of the suit hills.
6.4: When once it is found that the suit hills belong to the Government and that the defendants are not in possession as trustees, that the rights
claimed by the plaintiff temple had been continuously objected to by the defendants, the plaintiff cannot invoke the provisions of Section 10 of the
Limitation Act.
By judgment and decree dated 14.3.1988 the trial court dismissed the suit.
Aggrieved, the present appeal has been filed by the plaintiff temple.
The other suit O.S. 178/82 filed by three Jeers of Sri Vaishnava Siddhanta and three Vaishnavite devotees of Sri Azhagar Koil against the
Collector of Madurai and six others is for a declaration that the entire alleged forest area in the Azhagarmalai or Azhagar Hills called Thirumal Irum
Solai in Madurai District, Melur Taluk Azhagar Hills in Alagapuri Village-near Kidaripatti, now in the possession of the Government belonged to
Sri Kallalagar Deity called Sundarajasamy or Sundara Babu or Paramasami in Alagar Koil, Melur Taluk, Madurai District and for consequential
possession of the said Forest area inclusive of the 3 acres of lands on the said Hills ordered to be assigned to the Executive Officer of Sri Arul
Mighu Murugan Temple under the administration of the Hindu Religious and Charitable Endowments Department.
9.1: The plaint details about the antiquity of the Temple and the hills, how Vrishabadri Mahatmiyam handed down by ancient Rishis and prayer
songs of Vaishnavite Saints and Alvars and Andal and Silappadikaram conclusively established that Silambaru is nothing but Nupura Ganga
flowing from the splashed water of the anklet of Lord Narayanan and how the entire Hills are described as belonging to Lord Vishnu in the two
forms of Paramasamy and Sundaraja or Kallalagar. The plaint further gives in detail, what according to the plaintiffs is the historical background as
narrated in the booklet Tirumal Irum Solaimalai Sthalapuranam, and how the East India Company took over the management of the Temple till it
was handed over to the Temple Committee appointed by the British Government in due course and how the Government stopped with collection
of assessment of the land and never interfered with the possession and administration of the Temples endowments including in the case of Alagar
Temple of Alagar Hills. The plaint finds fault with the Temple Committee formed under Act XX of 1863, for betraying the rights of the Lord and of
the worshippers by submitting to the authority or fiat of the Government, either in ignorance of the rights of the Temple or actuated out of fear,
which further resulted in the Government claiming the forest areas as its own. The plaint further states that a plot was conceived to establish the Hill
as one of the Houses of Lord Subramanya and a proposal was submitted to put up a Murugan idol at the Mantapam known as Sambalaputhur
Mantapam or Solaimalai Mantapam, that some Vaishnavite worshippers filed O.S. No. 219/1960 before the District Munsif Court, Madurai
Town to thwart the attempt of some individuals to install Sri Subramanyasami at what was and is called Theertha Thotti where Lord Kallalagar is
taken during the Tamil month of Arpisi to celebrate the Theerthavari Utsavam; though the learned District Munsif held that the suit mantapam
belonged to Kallalagar Devasthanam dismissed the suit holding that the suit was barred u/s 108 of Act 22 of 1959 and therefore, the Civil Court
had no jurisdiction to entertain the suit. The appeal in A.S. 281/1961 was dismissed only on the ground that the Civil Court had no jurisdiction.
The Second Appeal therefrom in S.A. No. 839/1962 ended in a compromise as follows:-
(i) declaring the suit Mantapam to be the property of Lord Sri Kallalagar Decvasthanam;
(ii) directing the 3rd defendant to surrender possession of the Mantapam suit shrine to the first defendant Executive Officer and the succeeding
trustees who assume charge,
(iii) that the Mantapam of suit shrine will be treated by the trustees as a distinct different and separate endowment or institution though under the
management of the trustees of Lord Sri Kallalagar Devasthanam and that;
(iv) There will be no further construction outside or over the suit Mantapam or introduction of new idols in the inside or over of surrounding the
Mantapam;
(v) there shall be no procession of any idol or vel from the new shrine beyond north Gate of Alagar temple.
(vi) that it will not prevent the trustees at any time to arrange for the idol of Kallalagar being taken along the Sambalaputhur Mantapam route to
Noopuraganga, if they think and if circumstances permit;
(vii) that all the boards or signs posters bearing ""PAZHAMUDIR SOLAI"" be removed throughout;
(viii) that the Devasthanam trustees will arrange for poojas under the Saiva Agama under their control.
The plaint then refers to the following observations made by the learned Judge in the Second Appeal:-
even so Alagar Hills are extensive enough to enable defendants 3 and 4 and persons with similar convictions to put up a temple at a site of their
choice by getting an assignment of it from the Government or purchasing a piece of property and putting a temple"" and avers that the observations
are based on a wrong notion that the Government is the owner of the Hills and that these observations have been taken advantage of and on an
application alleged to have been made by the Executive Officer of Lord Murugan Koil Alagarmalai and after consulting the Commissioner, H.R. &
C.E. Department, Madras and the Chief Conservator of Forests, 3 acres in Alagar Hills preserved as Alagarmalai '' Reserve Forest'' were
assigned to and placed at the disposal of the Executive Officer of Arulmighu Subramanyasamy Temple, Alagarmalai. It is further stated in the plaint
that the Commissioner, H.R.& C.E, Madras, his subordinates, the Executive Officer, Sri Kalyanasundareswarar Temple, Avaniapuram, the Chief
Conservator of Forests of the Madras Government and the Government have been encouraging this infraction of the rights of the Vishnu Temple in
Alagar Koil to whom the entire Hills belong, the Temple Committee of Alagar Koil according to the plaint had been inactive on account of
ignorance of the rights of the Temple to the Hills and the plaintiffs worshippers can therefore take action. It is also learnt that, in the eighteen
eighties, when the Government parted with possession to the Forest Department, the statutory rules framed under the Forest Act and provisions of
the Forest Act were not complied with, followed or observed; whatever was purported to have been done would not bind the deity or the
worshippers. It is stated further in the plaint that:
The Board of Trustees was appointed by the Commissioner, H.R. & C.E. Department, who in his turn was subordinate to the Government and
under its disciplinary control had to abide by the policy decisions of the Government which was against the interest of the Temple; it would not
have been possible to revolt against the classification of the portion of the Hill as Forest Area; in any event there was no acquiescence on the part
of any of them; the compromise entered into in S.A. No. 839/1962 was against the interest of the Temple and the worshippers; the provisions
under the CPC for service on the General Public were not followed; there was no proper publication; the Commissioner, H.R. & C.E failed in his
duty and ought not to have accorded permission for compromise detrimental to the interest of the Temple and the worshippers; even otherwise the
earlier suit did not relate to the entire Hills; the Government was not a party; the deity was not properly represented; in such circumstances the
present suit has been filed for the reliefs already set out.
9.2: Defendants 1, 4 and 8 filed independent written statements while defendants 6 and 7 filed a joint written statement and an additional written
statement. Defendants 2 and 3 adopted the written statement of the first defendant.
9.3: The first defendant, Collector contended inter alia as follows:-
9.3.1: The history or legends set out in the plaint do not confer any title or any right over the Hills. The Committee appointed by the Government
did not betray the interest of either the Temple or the worshippers. The Committee managed the affairs of the Temple only as the Hills did not
belong to the Temple.
9.3.2: The entire Alagar Hills and the adjacent Nadu Hill and Chembuli Hill, all three belong to the Government and have been classified as
Reserve Forests and excluded from settlement. As per the notification bearing No. 187 dated 11.10.1883, the entire range of Hills vested with the
Forest Department and is under the control and Management of the Forest Department the second defendant in the suit. The claim in the plaint that
the Hills belong to the Temple is untenable.
9.3.3: In view of the observations made in the Second Appeal, the Government has got every right to deal with the property (Alagar Hills) in the
interest of the public or in its own interest.
9.3.4: The assignment of 3 acres of land just above the existing Solai Murugan Temple which is ''Forest Land'' had been granted for adequate
consideration and possession also taken in 1974. The Government ratified the assignment in G.O. No. 657 Ms. Forest and Fisheries Department
dated 9.7.1975. The authorities concerned have discharged their duties lawfully. There has not been any infringement of the rights of the Vishnu
Temple.
9.3.5: The Government or the Forest Department is not holding the property as trustee for the benefit of Alagar Temple as falsely alleged. The
Forest Department is in possession and enjoyment of the entire hills except the assigned portion. The river Nupura Gangai is also under the control
of the Forest Department, the Temple is paying fees to the Forest Department for using the water from the river through pipes for deity, and also
for using a portion of the land in the Alagar Hills as Nandavanam.
9.3.6: There is no cause of action for the suit. The suit notice is not valid and proper. The property description is not correct. The suit has not been
properly valued. Proper court fee has not been paid.
9.4: The fourth defendant Commissioner, H.R,. & C.E. Department filed a written statement to the following effect:-
9.4.1: It can be easily asserted that the Temple was built and the idol consecrated some centuries before the reign of Tirumalai Naicker from 1627
to 1659 and that the origin is therefore lost in antiquity.
9.4.2: At a distance of a mile and a half up the hill there was a dilapidated mantapam considered to be the ruins of a former Murugan Koil, and one
of the Arupadai Veedus. Improvements were effected and the Temple became popular and came to be known as Arulmighu Solai Malai Murugan
Temple.
9.4.3: This provoked some interested Vaishnavites including the first plaintiff to file the earlier suit which ended in a compromise in the High Court.
The first plaintiff having been a party to the proceedings is estopped from questioning the compromise decree.
9.4.4: Assignment was sought for, granted by the Chief Conservator of Forests, ratified by the Government and His Holiness Sri Sankaracharya
Swamigal came and performed the ceremony to construct a new temple.
9.4.5: The Commissioner, H.R. & C.E Department and his subordinates are discharging their duties lawfully. There is no question of their infringing
the rights of Vishnu Temple.
9.4.6: In the earlier proceedings, the entire hill was not the subject matter; only a particular mantapam and its appurtenances were the subject
matter; the judgment in the Second Appeal will operate as res judicata.
9.4.7: The plaintiffs'' claim is speculative. There is no cause of action.
9.5: Defendants 6 and 7 filed a joint written statement and an additional written statement and their contents are as follows:-
The pasurams of Andal and the Sanskrit work Rishbagiri Mahatmiyam have only literary excellence and cannot be the basis for claiming title to the
suit hills. Stalapuranam does not contain true facts. What the East India Company did or did not do is immaterial for the purpose on hand. From
time immemorial Muruga worship in Alagar Malai had been there. Because some Vaishnavites raised dispute, for having a peaceful solution,
compromise was effected. The plaintiffs are suppressing the judgment of the High Court in the earlier proceedings. The Vaishnavites are bound by
the earlier decisions. Even conceding without admitting that Alagar temple had any right in the suit property, the same had been lost. After a
number of invasions, change of rulers, Alagar Hills are now with the Government. The claim is barred by limitation. The earlier request by the
Vaishnavites under Act 11/27 for the Hills was rejected by the Government. The rejection was not challenged. After such a long time, it cannot be
challenged now. The construction in the assigned land were completed as per Sastras. One T. Srinivasaraghavan, Advocate, who claimed to be
the President of United Vaishnava Sabha filed a Writ Petition in the High Court without mentioning about the present proceedings. Some of the
plaintiffs are important members of that Sabha. The suit is barred by the provisions of Section 108 of the H.R. & C.E. Act. There is no cause of
action for the suit.
The eighth defendant/Executive Officer, Kallalagar Devasthanam filed a written statement contending that the question of title may be decided
by the Court.
The learned Subordinate Judge framed the following issues for trial:-
Whether the suit property belongs to Arulmighu Kallalagar @ Sundarajaswami @ Sundarababhu @ Paramasami and whether it is right to seek
declaration on that basis?
Whether the plaintiffs can maintain the suit?
Whether the suit is barred by the principles of res judicata and estoppel?
Whether the Government of Tamil Nadu has acquired title to the suit property by adverse possession?
Whether the suit has not been properly valued and whether proper court fee has not been paid?
Whether proper notice has not been issued u/s 80 of the Code of Civil Pro-cedure4?
Whether the plaintiffs are entitled to reliefs?
If so, what are the reliefs?
On the side of the plaintiffs, Exhibits A1 to A18 were marked. The fourth plaintiff was examined as P.W.1 and one Rama Ramanujam as
P.W.2. On the side of defendants, Exhibits B1 to B17 were marked and one Vajravel was examined as D.W.1. The order in W.P. No.
2090/1982 was marked as Ex.C1. One of the documents filed on the side of the defendants was the judgment in the other suit viz., O.S. No.
171/1987, as Ex.B.13.
12.1: On the materials placed the learned Subordinate Judge held as follows:-
12.1.1: The suit by the plaintiffs is maintainable. Section 80 C.P.C notice has been validly issued. From the various Exhibits filed and oral evidence
let in, it has to be found that the suit property belonged to the Government and had been properly declared to be Reserve Forest. Further, apart
from the payment of salary to Watchers, there is no other material supporting the case of the plaintiffs and that certain permissive rights have been
given to the Temple and nothing more, that the Government is not administering the Hills as trustee and that the plaintiffs are not entitled to the
declaration prayed for. The decision in O.S.171/1987 will not operate as res judicata, as the present plaintiffs were not parties in that suit. No
arguments were advanced on adverse possession, and suit valuation.
12.1.2: So holding by judgment and decree dated 28.9.1995 the learned Subordinate Judge dismissed the suit.
Aggrieved plaintiffs 3 to 5 filed appeal before the District Court. The appeal has been transferred to this Court to be heard along with A.S.
No. 563/1989.
Mr. S. Desikan, the learned Senior Counsel took us through the pleadings, the oral and the documentary evidence, Silappadikaram and the
Pasuramas of the various Aazhvaars, who had sung in praise of the Lord of Azhagar Hills where there is reference to the Azhagar Hills being
owned by Lord Azhagar. The learned Senior Counsel submitted that since no grant is produced, lost grant should be presumed. In this connection
counsel relied on the judgment in Nagarathna Mudaliar Vs. Sami Pillai and Another, . Counsel also submitted that inscriptions are referred to in the
Sthalapurana. In the further submission of the learned Senior Counsel, the lower Court failed to note that the entire Azhagar Hill known as Azhagar
Malai is referred to in the Temple documents and in some of the early Government records that such acts of ownership as are capable of being
exercised in the case of a Hill of this character have been consistently enjoyed by the Temple authorities for the greater part of a century; that the
Temple had been enjoying the forest produce from the Hills by leasing out honey, tree barks cutting and in other ways and also using firewood
from the forest in the Temple kitchens. Counsel drew our attention to Tamil Nadu Regulation VII of 1817 pursuant to which the Board of Revenue
took over the management of the Temple and Religious Endowments Act (Act XX of 1863) when the management reverted to temple Committee
and Nelson''s Manual on the Madura Country giving copious details about how the Temple properties were being managed over the centuries.
Counsel submitted that the notification issued under the Forest Act 1882 was illegal and wholly void, the procedure thereunder not having been
followed, that the Forest Department had no control or possession prior to notification dated 6.7.1883, that the defendants had kept back vital
documents, that adverse inference should be drawn against them in the light of the decisions of the Privy Council and the Supreme Court, that the
Government being a trustee, in view of Section 10 of the Limitation Act, there was no bar of limitation.
Ms. Selvi George appearing for Special Government Pleader representing respondents 1 and 2 submitted as follows:-
In para 27 of the plaint there is an admission that the G.O declaring the Hills as Reserve Forest, is illegal and without seeking a declaration that the
G.O is illegal, the plaint is defective. There is no pleading that the Government did not hand over the forest nor is there reference to any eviction by
the Government. Mere songs in praise of the Lord cannot give title to the Lord. The appellants who did not raise any objection regarding Section
25 of the Tamil Nadu Forest Act before the lower Court cannot therefore, be allowed to raise before this Court. Again from the reading of the
plaint, and cross-examination of P.W.1, Section 25 objection cannot be raised. No new case can be put forward in the absence of pleading. The
trial court has considered all the points and found that the suit is not maintainable. Today it is a forest. It has been so for over 100 years. Plaintiff
cannot have any relief. Counsel relied on the following judgments in support of her submissions. "" AIR 1930 57 (Privy Council) Kalyanpur Lime
Workers Ltd. Vs. State of Bihar and Another, ""S.S. Velemeli.vs. Chanabasappa Basappa Warad"" (A.I.R. 1979 Kar 52), T.N. Godavarman
Thirumulkpad Vs. Union of India and others, and the interim orders passed by the Supreme Court in W.P. (Civil) No. 202/1995 dated 7.5.1999.
In reply, Mr. Desikan submitted that the Government was not satisfied with Section 25 notification and therefore, the other notification was
issued to proceed u/s 4 as would be evident from the documents filed in the other suit. The Government has not followed the procedure
contemplated under the Forest Act. The illegality goes to the root of the matter and it is totally unnecessary to seek a declaration. Counsel also
submitted that the suit is not barred in view of Section 10 of the Limitation Act. He also cited some further decisions.
The common points for determination in the appeals are:-
Whether Azhagar Hills belong to Azhagar Temple?
Whether they were in the possession and management of the first defendant Government in their capacity as trustee and therefore, Section 10 of
the Limitation Act would apply?
Whether the Government Order dated 11.10.1883 had been properly issued or is illegal and invalid for non observance of the provisions of the
Tamil Nadu Forest Act 1882?
POINTS:- The term ''temple'' means a place, by whatsoever designation known, used as a place of public religious worship and dedicated to
or for the benefit of or used as of right by a community or any section thereof as a place of public religious worship Jagannath and Others Vs.
Satya Narain and Others,
The origin of the Temples in the form of structure is shrouded in mystery. Gautama''s Dharma Sutra, fixed roughly about 500 years before
Christ, refers to a temple of God in several places. We do not know the images worshipped in that temple.
But then we need images, as plausibly reasoned by Dr. Radhakrishnan and which is referred to in In re Temples in the erstwhile In Re:
Temples in the erstwhile Malabar area,
Man is anthropomorphic and is inclined to conceive God in vivid and pictorial form. He cannot express his mental attitude except through
symbolism and art. However inadequate the symbols may be as expressions of the real, they are tolerated so long as it suggests the right stand
point. Realising as it does the force of the lower forms of worship, Hinduism has developed a religious atmosphere permeated by the highest
philosophic wisdom as well as symbolic worship round which much glorious art has gathered. It has room for all men of all grades of cultural
equipment and religious instinct. It is idle to stifle the impulses of the child by breaking its playthings, simply because we are grown up and do not
find any need for them"".
Distinct forms have been ascribed to the Gods. Answering the question as to why Hindus worship many Gods, Dr. David Frawley said,
Human beings through history have formulated many different names and forms for the Divine or Eternal. Just as we have many names and forms
for other things, whether it is foods, or types of art, so too, in religion a similar great diversity has been created."" ""Having many names for
something is not necessarily a sign of ignorance of its real nature. On the contrary, it may indicate an intimate knowledge of it. For example,
Eskimos have forty eight names for snow in their language because they know snow intimately in its different variations, not because they are
ignorant of the fact that all snow is only one. The many different deities of Hinduism reflect such an intimate realization of the Divine on various
levels.
Hindus have the Triad - Brahma the Creator Vishnu - the Preserver and Siva -the Destroyer. Temples for Brahma have been few and far
between. His concert Saraswati Goddess of Learning has perhaps more worshippers than He has. Vishnu has His devotees who are called
Vaishnavites. Saivites worship Siva. It was Avvaiyar who said Tirumalukku Adimai Sey. Serve Vishnu) and Aranai Maravel c Do not forget Siva).
Nayanmars sang Siva''s glory and their outpourings speak volumes about our rich cultural heritage, while Aazhvaars, meaning those who are
''immersed'' in the worship of God, composed ''Nalayira Divya Prabandham'' on Vishnu. The Aazhvaars were twelve in number. Their divine
verses would have been lost to us but for the Herculean efforts taken by that philosopher saint Nathamuni of Kattumannarkoil, Legend has it that
he had a vision of Nammalvar who had contributed the maximum number of ''pasurams'' (verses), and got the ''pasurams'' direct from him.
We are told that there is more devotional literature in Tamil than in any other regional language for which the credit goes to Aazhvaars and
Nayanmars. They went from temple to temple in their devotional ecstasy and sang about God, as the belief goes, He manifested Himself in each
temple.
Dravida Desa contains more temples than the rest of India put together. Similarly, in respect of devotional, philosophic, ethical and religious
works, India has produced more works than the total output of such works in the rest of the world. In this respect too, Dravida country leads the
rest of India and the tradition has it that Vedic religion, philosophy and dharma and bhakti are preserved much more on the banks of Kaveri and
Tambraparni than anywhere else in India. Greatmen, in the abundance of their devotion built temples and also endowed them with considerable
properties.
The Vishnu Kshetras or Divya Desams are stated to be 108 in number out of which 106 are found on this earth. A majority of them is in South
India. More than ninety are in Tamil Nadu, the Temples dedicated to Siva are innumerable.
One of the 108 Divya Desams of Vaishnavites is Tirumalyirum Solai, better known these days as Azhagar Koil. The origin of the Temple is not
very clear but the ''sthalapuranam'' mentions a few legends associated with this temple. Yama, the deity who presides over death once visited this
place and enchanted by its beauty stayed here for meditation. Lord Vishnu appeared before him in response to his meditation. He requested that
the Lord remained in this place so that people could worship him. In granting his wishes Vishnu stayed there with his two consorts, Sri Devi and
Boo Devi.
There is also a legend associated with the river Silambar that runs on the western side of the Temple. A king by the name of Bali by his severe
penance became very powerful and brought all the three worlds under his domain. The Devas who had thus lost all their possessions and exalted
position approached Mahavishnu and requested that he should restore them to their rightful place. Mahavishnu then took the form of a dwarf by
the name of Vamanan and went to King Bali and sought three paces of land for himself. King Bali seeing this dwarf acceded to his request. Then
Mahavishnu assumed a gigantic form (Brammanda soroopam). He measured the three worlds by two paces and asked King Bali where he could
measure his third pace. King Bali, unable to find any other place, showed his head whereupon Mahavishnu put his foot on his head and pushed him
into the netherworld. Lord Brahma seeing this large foot washed it with water from his ''Kamandalam'' (pot). The water that trickled from the
Silambu (Anklet) worn by Mahavishnu formed into a river thus taking the name ''Silambar'' (Silambu+Aaru), The sanctity of this place is further
enhanced by the fact that all twelve Vaishnavite saints (Azhwars) had visited this temple and had sung in praise of the presiding deity.
The memorial Ex.A.24 submitted by Mr. K.N. Radhakrishnan the then trustee of the Temple in the late thirties to the then Revenu Minister of
the Government of Madras makes very interesting reading. It traces the origin, the legendary as well as the modern history of the Temple and
makes a fervent appeal to restore back Sri Azhagar Hills to Lord Sri Azhagar. The shrine at Azhagarmalai is one of the two where the Lord is
worshipped in a golden image, the other one being at Trivandrum Sri Padmanabhaswami. The antiquity of the Temple is sought to be established
by reference to Nalayira Divya Prabandham and Silappadikaram. Silappadikaram scripted by Elangovadigal belonged to the second century AD.
In Madurai Kaandam Kaadukaan Kaadhai, the following stanza appears:
Direction to reach Madurai is given. Tirumalirum Solai is given as a land mark. The hill is stated to belong to Tirumal. Most of the twelve
Aazhvaars are stated to have sung in praise of the Lord in Tirumalirum Solai. The first Aazhvaars Poygai Aazhvaar born in a tank in Vehka near
Kanchi, Butattaazhvar born in Mahabalipuram and Pey Aazhvar born in a well in Mylapore, are placed in the 5th and the 6th Centuries AD.
Tirumazhisai Aazhvar born in Tirumazhisai near Chennai was a contemporary of the first three Aazhvars. All the four laid the foundation for Bhakti
cult through poetry which later on took wings and developed into music, dance, drama and sculpture. Nathamuni had a great role to play in setting
them to music and reciting them in temples.
Peyaazshvar in his Moonram Tiruvanthathi (stanza 2342) it is said sang on Azhagar-
meaning that the young Lord, who has all along been residing in Paarkadal and in Tiruvenkatam giving them equal status has found a new home in
kadigai surrounded by flower gardens with bees humming around. We have our own doubts whether kadigai referred to here is Tirumalyirunsolai
or Sholingar. Butattaalwar in Irandam Tiruvanthathi.
(stanza 2227)
Nammaazhwar whose date is 300 years prior to Nathamuni has sung 46 songs in praise of Thirumaliyurum Solai. A sample is stanza 2886
It says that the mountain belongs to Lord Vishnu. Thirumangai Aazhwar sang 33 pasurams eulogising the Lord. A sample is stanza 1837
Periaazhwar lived during the reign of King Vallabha Devaraya of the Pandya Dynasty, who ruled from Madurai during the 8th Century A.D. His
foster daughter was Aandal. Both Periaazhwar and Aandal have sung in praise of the Lord at Thirumalyirun Solai. Periaazhwar has called Him, the
king of Solaimalai. He describes the ''malai'' variously as,
and addresses the Lord as
Aandal has sung 11 songs. A sample is-
The then Government of Madras in their order No. 2162 dated 9th September, 1865 directed James Henry Nelson Esquire of the Madras Civil
Service to compile the Manual for the Madura District. Accordingly, he completed the compilation and had it printed and published in five parts in
1868 under the caption ""The Madura Country"". Portions of the said Manual have been made available and relied on by the learned Senior Counsel
for the appellants. From this Manual, it is seen that there was once a large city near the Azhagar mountain (Page 45), that Saint Ramanuja lived in
the time of the son of Sundara Pandiya, in 1117 AD (65). Ramanuja, it is said lived for six scores of years. His period can be fixed in the 11th and
12th Centuries AD. Nathamuni was before Ramunaja. All the Aazhvaars were long prior to Nathamuni''s period. The Temple at Azhagar Malai
has long been in existence, if not prior to Christ, atleast by the 2nd Century AD, the period during which Silappadigaram was written though Sri
Vaishnavites claim that the Temple belongs to Thretha Yuga and the first Aazhwars lived in 5000 B.C. Whatever it may be, there can be least
doubt about the antiquity of Azhagar Temple and Azhagar Hills. But that by itself cannot mean that the Hills belong to the Temple. It is the privilege
of the poet or the devotee to exaggerate and say that everything belongs to the Lord. We cannot, therefore, on the above basis alone, conclude
that Azhagar Hills belong to Lord Azhagar. We need something more than this.
A similar question regarding right to a Hill arose for decision by the Privy Council in AIR 1931 212 (Privy Council)
In that case, the Temple represented by its Manager claimed a whole Hill viz., Tirupparankundram Hill with the exception of certain cultivated
and assessed lands and the site of a Mosque, as temple property. The Mahommedan defendants asserted their ownership of the particular
eminence upon which the Mosque stood and of a portion of the main hill known as the Nellitope. The Secretary of the State claimed to be the
owner of all the unoccupied portions of the hill as Government poromboke or waste appertaining to the village of Tirupparankundram, admittedly
Government property.
The trial Court decided against the Government claim and in favour of the Temple, except in respect of the Nellitope and the actual site of the
Mosque with its flagstaff and flight of steps leading upto it, which it held to be the property of the Mahomedan defendants. The Mahomedans alone
appealed. As their only grievance was against the Temple, they did not make the Secretary of State a party. At the instance of the High Court, the
Secretary of State was made a party. He put in cross-objections contesting the decision of the trial Court upon every head of its judgment. The
High Court dismissed the appeal by the Mahomedans, allowed the cross objections and dismissed the suit. The Privy Council referred to the
antiquity of the Temple, how the inner shrine of the Temple is hewn out of the hill, and in it, the rock itself, is the image of the deity and how
perambulation of the hill is an important religious rite. The Privy Council further referred to the existence of several smaller shrines of almost equal
sanctity, a number of old established mandapams or rest houses, together with tanks and bathing places for the pilgrims and at least in one place a
garden for the use of the Temple, how they are scattered over the lower slopes of the hill which contains various springs, the water of which is
supposed to be of great religious efficacy. The Law Lords further noticed that in a report of the Director General of Archaeology in India which is
embodied in an order of the Local Government that the whole rock is worshipped by the Hindu community and that the hill itself is frequently
referred to in temple documents and also in some of the early Government records as the Swamimalai or God''s Hill. In the opinion of their
Lordships, it was clear on the evidence that such acts of ownership as were capable of being exercised in the case of a hill of that character had
been consistently so exercised by the Temple authorities for the greater part of a Century; the records dated back to 1835; there was no record
found to suggest any limitation of the Temple''s proprietory rights over the unoccupied portions of the hill. The Privy Council then traced the
fortunes of the Temple in the 17th and the 18th Centuries by relying principally on ""Madura Gazetteer"" and Nelson''s ""Manual of the Madura
Country"", how the Nayakkan kings of Madura and in particular Tirumala Naicken endowed the seven temples known as the Hafta Devasthanams
in the immediate neighbourhood of the capital with large revenues derived from a number of villages; how there is a confused record of internecine
warfare in which the incursions of Mahomedan, Mysorean and Mahratta invaders played the largest part, and these were succeeded by the
gradual, but by no means peaceful, penetration of the East India Company; how during these troublous times the Hafta Devasthanam lands seem to
have disappeared piecemeal; how what remained of them when Chanda Sahib, nominally representing the Nawab of Arcot established himself in
Madura in 1738, were then confiscated; how his dominion was interrupted by another invasion of the Mahrattas who probably restored a portion
of the old endowments; how they again were ousted by the Nizam in 1744, and temples fared no better than before; how the intervention of East
India Company then followed; how Madura was eventually subdued by their troops under Mohamed Yusuf Khan, who in due course established
himself as Ruler; how he, who was apparently a Hindu by birth reestablished the endowment of the Temples by a money grant, possibly derived
from the revenues of the confiscated villages but the villages themselves were not restored; how in 1763 he was besieged in Madura by the
Company''s Army and how after a memorable defence, he was betrayed and executed; how thence forward Madura had come gradually under
the Company''s control and after the fall of Seringapatnam (Srirangapatnam) the civil and military administration of the District was formally made
over, as part of the Carnatic, to the British under Lord Clive''s treaty with Azim-ul-Dowlab of 31st July, 1801 (Aitchison''s Treaties Edn. 4, X.57);
how Mr. Hurdis who became the first British Collector of Madura, carried out an elaborate survey and settlement of the country; how he was in
considerable doubt as to the course that should be adopted with regard to the Hafta Devasthanams'' lands; and how the Board of Directors
ordered their restoration to the Temples, but for some unexplained reason, this order was not carried out, a tasdik or annual allowance in money
being paid in lieu thereof to each of the Temples.
The Privy Council then addressed itself to the question whether any presumption should be drawn from the confiscation of the endowed
villages as to the proprietory rights in the waste land situate within the ''ghiri veedhi'' and forming part of the ''malai prakaram'', on the admitted
position that the village of Tirupparankundram in which the Temple is situated, was part of this endowment. The Privy Council found that there was
no trace in the historical work referred to, of any interference by the Mahomedan invaders with the sacred hill or the immediate surroundings of the
Temple, though the revenue producing lands which formed the joint endowment of all the Temples including the cultivated and assessed lands
within the ''ghiri veedhi'' had been seized. It ultimately held that the appellant before it had shown that the unoccupied portion of the hill had been in
the possession of the Temple from time immemorial and had been treated, by the Temple authorities as their property, reversed the decision of the
High Court and restored that of the trial Court.
This decision of the Privy Council was relied on by the appellants before the trial Court in O.S. 178/82 but the lower court except for referring
to it and recording the respective contentions did not express any view. Counsel for the appellants laid great stress on this ruling and submitted that
the ratio will apply on all fours to the case on hand. We will now get back to our case.
It is not necessary to repeat the chain of events recorded by the Privy Council decision. Suffice it to say that it has equal relevance to the case
on hand. We may also note that one of the seven (Hafta) Devasthanams to which lands were endowed was the suit temple. We should also
incidentally extract a passage from Nelson''s Manual which has been commented upon by the Privy Council in the decision cited supra ""as a
compilation of great interest.
On the 14th of April 1849 the Collector, Mr. Parker, proposed to the Board of Revenue to surrender to the Hafta Devasthana managers twenty
of the villages which were styled Hafta Devasthana in the accounts and of lands situated in two other villages, and to incorporate the remaining
Hafta Devasthana villages with the Government villages. He calculated that the amount of the revenues so surrendered would be a trifle in excess of
the sum annually allowed for the paditaram expenses, and that those finally assumed would amount to over Rs. 31,000/- per annum.
The landed endowments of the entire district were classified by Mr. Parker as follows""?
1st - Endowment of the Haftah Devasthanums of the Madura Division, No. of villages 58
And an allowance of Rupees 169-12-8 ""out of Rupees 343-10-2, the quit-rent of ""the Mussulman Inam Village of ""Annonjyoor.
2nd:-Endowments of 14 sundry Devastanums of the Madura Division, 23
An allowance of Rs. 636-5-10, from the revenue of the resumed Chuttrum village of Mullankenner.
3rd:--Do. Of 11 Devastanums in Dindigul 16
Lands in the village of Cumbuim classed as a separate village, 1
4th:-The village of Pandagoody in."" Maylore which once belonged to ""Peramalay Devastanum, 1
but has not ""been enjoyed by it during the Company''s Government,
Total 99.
As the Hafta Devastanum villages had been ""Sequestrated some time before the British Rule,"" and as the British had ""found the Pagodas in the
enjoyment of only one-half the amount of the tusdeek which, ever since, we have allowed them;"" Mr. Parker was of opinion that the assumption of
the lands in excess of what was sufficient to yield the customary allowance, was perfectly justifiable.
The lands belonging to the other Devasthanas stood on a different footing. They too had been assumed by Mr. Hurdis: but the revenues which
flowed from them were wholly devoted to the maintenance of the Devasthanas, and were in some instances inadequate to the charges incurred.
Mr. Parker proposed to surrender the greater part of them to the institutions to which they had been severally granted.
Nothing came of this proposal, and on the 12th of August 1859 Mr. Clarke, the Collector, submitted for the consideration of the Board another
plan for the disposal of the Devasthana lands, in obedience to a requisition contained in the proceedings of the Board of Revenue, under date the
26th February, 1859, upon an order from Government which called for a report:--
I. -- As to whether in cases in which the endowment and grant to ""Pagodas and other religious establishments was originally in land, that ""land
cannot be granted in lieu of money payments no made.
II -- When the grant has always been in money, whether an ""assignment of land cannot now be given in lieu.
After stating what Mr. Hurdis had done in the matter of the Hafta Devasthanas, and the proposals of Mr. Parker described above, Mr. Clarke
observed with regard to the latter:-- ""but he appears to have ""overlooked one very material point in the consideration of this subject: ""viz, the order
of Government to proclaim the restoration of these lands, ""whereby it appears to me they gave up altogether any right which they ""may have
derived from the Mahomedarl Government in these lands, and ""constituted themselves simply the trustees of the endowments, on ""behalf of the
Pagodas. 1, therefore, conceive that we are morally, as well ""as in strict justice, bound to restore the whole of the villages with their ""immense
revenue of Rupees 78, 336-14-8 to the Pagodas.
The only question which in Mr. Clarke''s opinion required careful consideration, was the disposal of the surplus funds which had accrued from the
revenues of the Hafta Devasthanas during their management by the British. This surplus amounted, after deducting the amount of the annual
allowance paid since 1802, and the expenses incurred in repairs and other charges, to Rupees 13, 32, 269 and odd in favour of the Devasthana.
What was to be done with it?
Mr. Clarke thought it advisable to follow the established rule, in accordance with which all surplus funds which accrued from Pagoda revenues
whilst under the management of Government Officers, were customarily appropriated to purposes of public utility, such as roads, bridges, the
improvement of towns, educational grants, and the like. The annual allowance was more than sufficient to meet all necessary expenses; and the
revenues of the Pagoda would be more than doubled by the transfer to the Pagoda of the endowed lands.
In like manner Mr. Clarke recommended that all the other Devasthana lands should be restored to the institutions to which they severally belonged.
The objection that whereas in some cases the endowments yielded revenues in excess of the tasdik or customary allowances made for the
maintenance of the institutions in favour of which they had been made, in other cases the revenues fell short of the allowances, should be allowed
no weight, inasmuch as it was not the duty of Government to redress any inequalities observable in endowments made for the purpose of
maintaining heathen worship. The words of the report are as follows:--
I do not think we could, with any propriety ""or shew of justice, appropriate the excess in the ""endowment over the tusdeek without making good
the deficiency; but the adoption of the later ""course would subject the Government to the charge ""and opprobrium of newly endowing Pagodas as
much ""as the following one would lay them open to the ""accusation of spoliation and injustice.
It appears to me there is a marked ""difference between distributing the proceeds of ""Devastanum lands, under our control, among the ""several
Devastanums, in such proportions as may ""have been sanctioned by time, and the ""readjusting the endowments themselves. If the ""endowments
originally conferred on the Pagodas, ""by those who may be presumed to have had the ""strongest motives for maintaining them in ""becoming
grandeur, are secured to the people ""intact and complete, they have no just grounds ""for calling on a Christian Government to make ""good any
supposed deficiency or to make new.
It is not for a Christian Government but for ""the devotees of the Temples, to devise measures ""for making good any deficiency which they may
complain the transfer occasions,
But little was done upon this report: and the Devasthana lands have not yet been transferred.
There is a particular reason for our extracting this passage. The plaintiffs have been claiming the Government to be a trustee and this concept
finds expression in the passage from Nelson''s Manual extracted above. We will have occasion to refer to it a little later.
Madras Regulation VII of 1817 (The Madras Endowments and Escheats Regulation, 1817) came to be promulgated on 30.9.1817 for the
due appropriation of the rents and produce of lands granted for the support of the Mosques, Hindu temples and Colleges or other purposes; for
the maintenance and repair of bridges, Choultrie or Chattrams and other public buildings and for the custody and disposal of escheats. By virtue of
Rule 2, the general superintendence of all endowments in land or money granted for the support of the Mosques, Hindu temples became vested in
the Board of Revenue to carry into effect the duties entrusted to them by the Regulation. Rule 9 required the agents to ascertain particulars of
endowments etc., and report to the Board. Rules 10,11 and 12 provided for the agents to report: names etc., of the then trustees or managers and
also by what authority they were appointed; vacancies or casualties and pretensions of claimants and to recommend fit persons where right of
nomination rested with the Government and to appoint persons or make other provisions for trust with reference to conditions of endowment. Rule
15 made it clear that the object of the Regulation was solely to provide for the due appropriation of lands or other endowments granted for public
purposes agreeably to the intent of the grantor and not to resume any part of them or of their produce for the benefit of the Government. It would
thus appear that management of the endowed lands was taken over by the Board of Revenue pursuant to Regulation VII of 1817.
It is now necessary to refer to the averments in paragraphs 16 to 20 of the plaint in O.S. 171/1987. They are as follows:-
In the year 1801, the East India Company assumed Governance over the territory. Mr. Hordis the 1st Collector of Madurai and succeeding
Collectors were having superintendence and control over the Temple''s properties including the schedule mentioned hills. Then regulation VII of
1817 was passed whereby the Board of Revenue assumed control over all the Temple properties. The plaintiff temple''s properties including the
schedule mentioned hills were under the control and superintendence of the Board of Revenue from the year 1817. All the previous records,
deeds, account books and other documents of the plaintiff temple were taken over by the Government.
All the incomes and expenditure relating to Alagar Hills the schedule mentioned property were entered in the accounts of the Government to
the credit of the Temple accounts. Hence from the perusal of the accounts of the Government in the Taluk Office, Melur it can be seen that Alagar
Hills, the schedule mentioned property was administered and managed as the plaintiff temple''s property.
When the Board of Revenue assumed superintendence of the plaintiff temple''s properties a list of properties that belonged to the plaintiff
temple was prepared and Alagar Hills, the schedule mentioned property was included as a property of the plaintiff temple. But unfortunately a
copy of the list was not given to the plaintiff temple even in spite of several requests in later years by subsequent trustees.
In subsequent year, the then trustee of the plaintiff temple required the Tahsildar of Melur and Deputy Collector and Treasury Officer to grant
copies of the Temple accounts, maintained by the Taluk Office during the period in which the Board of Revenue was in control. A Clerk was
appointed to write the entries relating to the accounts of the Temple and certified copies were granted.
In the said certified copies, the expenses relating to the maintenance of the Alagar Hills, the schedule mentioned property and also the income
derived therefrom are mentioned therein, thus confirming the fact that the Alagar Hills was administered by the Board of Revenue as the property
of the plaintiff temple.
We are also to further recall that in the list of documents given in the plaint under Order VII Rule 14 C.P.C it is specifically mentioned that
seventy five documents serial numbers 1 to 75 being records of orders relating to plaintiff temple for the period 1835 to 1897 are available with the
Deputy Collector Huzur Treasury, Madurai District.
Meeting the above, in paragraphs 9 to 11 of the written statement of the first defendant, this is what is stated.
The allegations in paras 13 to 15 are all incorrect. Merely because a temple is situated on the Northern Part of the Hills and number of sacred
places are situate and festivals have all along been conducted, the plaintiff cannot consider himself to be in possession and enjoyment of the suit
property. The hills are called ''Alagar Hills'' not because it belonged to the Temple, but because the hills are situate nearby to the Temple. The
allegation in para-14 that successive Governments and Kingdoms and the British Regime recognised that the schedule mentioned hills belonged to
the Temple is false. The hills were never considered nor treated as the property of the Temple. The allegation in para-15 that temple were enjoying
forest produce from the hills by leasing out honey, tree cutting and the timber were used in the kitchens is false. The allegation that the Temple had
also been protecting the schedule hills by posting guards and by other means is also false and untenable. There was no such system of protecting
the forests existing them.
The allegations in para 16 of the plaint are all incorrect. The East India Company with their policy, adopted throughout India, avoided offending
the religious feelings of the Hindus and they did not prevent anybody from constructing temples and managing by themselves. On the establishment
of British Government in India, they appointed temple committees. The British Government did not interfere with the religious affairs of anybody. In
the circumstances that the 1st Collector of Madurai and succeeding Collectors were having superintendence and control over the Temple and its
properties including the schedule mentioned hills is absolutely incorrect, the Temple committee was appointed only for management of the Temple
above. The committee never had any superintendence and control over the suit hills.
The allegations in para 17 are all false. It is false to state that all the income and expenditure relating to Alagar Hills, the schedule mentioned
property were entered in the accounts of the Government to the credit of the Temple accounts. All the grazing and other leases, Revenue and
expenditure are under the control of Forest Department in the Alagar Hills Reserved Forest. The income mentioned is only from the Temple and
not from Forest area. Hence the allegation that from the perusal of the accounts of the Government in the Taluk Office, Melur it can be seen that
Alagar Hills, the schedule mentioned property was administered and managed as the plaintiff''s property is false.
The allegations in paras 18 to 20 are not fully correct. The allegation that in the list of properties the schedule property was included as a
property of the Temple is false. The allegation that a copy of the list of properties was not given in spite of several requests is false. The further
allegation, that in the certified copies, the expenses relating to the maintenance of Alagar Hills and also the income derived therefrom are mentioned
therein thus confirming the fact that Alagar Hills was administered by the Board of Revenue as the property of the plaintiff temple. This defendant
submits that the plaintiff has no title to the suit property and occasional user and expenses incurred for such occasional use even if true, cannot
confer any title on the plaintiff in respect of suit property"".
There is no denial anywhere about the availability of the documents. According to learned Senior Counsel, the defendants have deliberately
kept back the documents and therefore, adverse inference has to be drawn against them. He relied on the following judgments in this connection.
(a) AIR 1949 88 (Federal Court) where it has been held that where the defendants are guilty of suppression of evidence which it was their duty to
place before the Court, no conclusion in their favour should be arrived at merely on the ground of paucity of evidence which is of their own
creation.
(b) Atyam Veerraju and Others Vs. Pechetti Venkanna and Others, where it has been held by the Constitution Bench of the Supreme Court that if
the defendants deliberately withhold crucial document, the Court should make every presumption against them to their disadvantage consistent with
the facts.
c) Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, holding that even if the burden of proof does not lie on a party, the Court may
draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not in our opinion,
a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession
which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.
(d) Baljit Singh and Another Vs. State of Uttar Pradesh, holding that party in possession of material documents should produce them and that
otherwise adverse inference should be drawn against such a party.
(e) Ramdas Oil Mills Vs. Union of India (Military Deptt.), which is also to the same effect.
The appellant in A.S.563/1989 has now filed before this Court a petition in C.M.P. No. 6110 of 2003 under Order 41 Rule 27 C.P.C for
reception of the documents set out therein as additional evidence in the appeals. It is stated in the affidavit in support of the petition that along with
the plaint, xerox copies of documents 1 to 77 were filed of which the originals of 1 to 75 were with the respondents/defendants and they were
requested to produce the aforesaid documents for the purpose of effective adjudication of the claim in the suit, that they neither filed those
documents nor sent any reply to the petitioner/plaintiff temple, that in the trial, though all the xerox copies of the documents were delivered to the
counsel for the petitioner temple, only some of them were marked and the remaining documents though referred in the plaint were not marked that
in order to substantiate that the petitioner temple had been in effective occupation of the Alagar Hills even long before the notification (under the
Forest Act) was issued and at no point of time, the said Alagar Hills were at the disposal of the government, that the remaining unmarked ten
documents already referred to in the plaint are being filed by way of additional evidence in the appeal for effective adjudication. It is further alleged
that the respondents have been requested to produce the original documents. C.M.P.6111/2003 has been taken out also under Order 41 Rule 27
C.P.C for reception of the communication dated 14.10.1986 from the Joint Commissioner, H.R.& C.E to the Executive Officer of Alagar Koil as
additional evidence. It is stated that the Executive Officer of Alagar Koil had been assigned with the power to file the suit but the power was
omitted to be filed into court at the time of trial that in view of the judgment of a Bench of this Court in Sri Arthanareeswarar of Tiruchengode Vs.
T.M. Muthuswamy Padayachi, M. Palanivelu, Smt. Dhanalakshmi Ammal, T.M. Thambiran Padayachi, T. Kuberan and Varadayammal, holding
that unless the Executive Officer of a temple is specifically empowered to file the suit, he cannot maintain the suit, the document is sought to be
produced as additional evidence.
The respondents/defendants have not filed counters. A memo has been filed into court stating that all sincere and earnest efforts were taken by
the Forest Department along with the Collector, Dindigul to trace out the records, that the records called for are more than 150 years old, and the
same are not traceable. The memo further states that in the above circumstances, both the appeals may be dismissed. It is rather strange and we
wonder how this prayer could be granted under the circumstances set out in the memorandum.
We have already pointed out that there is no express or even implied denial of the existence of the documents in the written statement. For
example it is stated in paragraph 10 of the written statement that the averment that all the income and expenditure relating to Alagar Hills were
entered in the accounts of the Government to the credit of the Temple accounts is false and that the income mentioned is only from the Temple and
not from the forest area. Again in paragraph 11, it is stated that the allegation that in the list of properties the schedule property was included as a
property of the Temple is false. Be it noted the accounts and the list of properties have not been produced by the defendants. The availability of the
accounts and the list is not denied. As has been pointed out in several decisions of the Supreme Court adverse inference against the defendants has
to be drawn. We accordingly draw adverse inference against the defendants for non production of material documents viz., accounts and list of
properties. We hold that if those documents had been produced, they would have been against the stand of the defendants.
The documents now sought to be produced are true copies of plaint documents 35, 36, 40, 41, 42, 47, 52, 53, 55 and 63. They relate to the
period 18.7.1873 to 25.6.1880. The genuineness of the documents sought to be produced is not disputed. They have come from proper custody.
They are not any new documents. The plaintiff had called upon the defendants to produce the originals. It has not been done. No doubt mere
nonfiling of counter cannot be a ground for receiving additional evidence. However, in our view, the materials already on record are not enough to
pronounce judgment without taking into consideration the documents sought to be produced now. The trial court has also criticized the plaintiff
stating that the plaintiff temple has not produced any document to show that the schedule hills belonged to it. In the circumstances, a clear case is
made out for reception of these documents as additional evidence. We, therefore, allow both the Civil Miscellaneous Petitions C.M.P. Nos. 6110
and 6111 of 2003 and direct the documents set out therein to be marked as Exhibits A.46 to A.56.
It is now necessary to find out as to what happened after 1817 when Regulation VII was passed.
Under Ex.A.5 dated 14.3.1916 the Manager of Kallalagar Devasthanam writes to the Collector of Madura to pass orders for the preparation of
an abstract of the records belonging to Sri Kallalagar Devasthanam in the custody of the Madura Collectorate for about 60 years from 1804 to
1865 and furnish the same to him as was done in the case of Madura and Co. Devasthanams and Thirumuhur Devasthanam.
Under Ex.A.6 dated 2.4.1916, the Collector writes to the Manager, Sri Kalla Alagar Devasthanam that special staff have to be employed for
the purpose for two months and that they have to be remunerated by the Temple.
Ex.A.7 dated 25.4.1916 is also to the same effect as Ex.A.6. Under Ex.A.8 dated 12.6.1916, the Collector writes to inform that the
Government have sanctioned the appointment of three temporary clerks for the said purpose and that the Temple should furnish the marginally
noted stationery for use by the clerks to prepare the records abstract.
Under Ex.A.9 dated 26.6.1916, the receipt of the stationery articles is acknowledged. Under Ex.A.10 the Collector informs the Temple that
progress reports are being obtained daily from the three temporary clerks and that the abstracts would be sent after the expiry of two months.
Under Ex.A.11 dated 22.8.1916, extension by two months is sought by the Collector. Under Ex.A.12 dated 19.10.1916, famine batta to the
temporary clerks is asked for. Under cover of Ex.A.13 dated 31.10.1916, the abstract of records is sent. Under Ex.A.25 dated 20.1.1832,
Tahsildar, Melur writes to suit temple maniam in reply to the complaint made by the latter about the disappearance of honey combs from Alagar
Hills stating that steps were being taken through Nattanmai. The letter further instructs the maniam to separate the honey and the wax through
servants, measure the honey and pour it in jars and keep both the honey and the wax safe. This letter talks of securing the honey in Alagar Hills by
the then maniam of plaintiff temple. Unless the Temple had some interest in the hills, there was no need for this letter.Ex.A.26 dated 8.3.1856 is
also a letter of significance. The then Head of Police writes to the Manager of the Temple stating that he had received his letter regarding theft of
tamarind from the trees near Nupura Gangai banks in Alagar Hills belonging to the Temple and further requiring the Temple to produce proof that
the Temple had been enjoying the usufructs from the tamarind trees in the Alagar Hills either personally or by leasing out and whether the trees
belonged to the Temple and whether there were accounts relating to the same, whether the Temple had paid kist and so on and so forth. Under
Ex.A.27 on 9.4.1856 Samuvaiyyan the peshkar of the Temple writes to the manager reporting about the removal of 24 loads of tamarind brought
from the trees in the hills above the passage to Nupura Gangais belonging to the Temple, by Kambali Koundan as per instructions given. Ex.A.29
is a Karar nama executed by Chinnan and three others on 3.1.1861 undertaking to remove and collect the honey from the honey combs in the
various trees in several places on Alagar Hills belonging to the Temple, as per the usual practice, give 2/3rd to the Temple and retain l/3rd for
themselves towards their guarding services and in case of any misfeasance or malfeasance they would be answerable to the Temple. Ex.A.38
dated 12.8.1848 is a letter from Meenakshi Karuppan Konar to the Temple. He is the shepherd taking care of the cattle totalling 130 belonging to
the Temple,requiring the Temple to make 18 tin bells and 20 bell metal bells for tying round the necks of the cattle for easy identification while they
grazed in the hills. Ex.A39 dated 15.11.1848 is a letter from the peshkar of the Temple to the manager of the Temple giving details of the expenses
incurred and the balance available for repairing the Nupura Gangai road so that the deity could be taken to Thotti during the ""Ennaikappu
Utsavam"". Ex.A.37 dated 29.11.1848 is a letter from the the Head of Police Narayana Rao to temple Ameena about fixing doors on all four sides
of the Temple fort for reasons of security from theft and safety from tigers. Ex.A.34 dated 23.8.1850 is an important and crucial document. It is a
letter from the Manager of the Temple to the Peshkar asking the latter whether it was true that on account of the rains in the hills belonging to the
Temple, there was flooding inside the Temple by rainwater entering through the Temple northern door and whether recurrence could be avoided
by deepening the old channel. None of these documents is disputed by the defendants. These documents clearly show that between 1817 and
1863 the Temple had exercised rights of ownership in the suit hills and claimed that they belonged to the Temple.
The complaint of the Temple is that the Temple records were not handed over to the Temple Committee and if only they had been handed
over, it would have been possible to know where the Temple stood with regard to its properties, its rights and obligations, its income and expenses
and so on and so forth.
We may now have to go back to Nelson''s Manual page 138-
When Mr. Hurdis took charge of the country, he found that what were called the Hafta Devasthana lands were yielding to the Circar a revenue of
Rupees 50,291 as. 9 p., 10, or about twice the amount of Mohammad Yusuf Khan''s original and larger allowance; and that only half that
allowance was being made by the Circar to the seven Churches. He was therefore in doubt as to whether Government ought to retain possession
of the lands, and reported accordingly.
Upon this the Board of Revenue hastily wrote the order which has been noticed above, without sufficiently understanding the meagre report
submitted for their consideration and without calling for such information as would have enabled them to form a just estimate of the merits of the
case as between them and the managers of the Devasthanas. The question to be decided was the following:- A certain Telugu King of a Tamil
kingdom which had been completely broken up and destroyed some sixty years previously, had some hundred and fifty years previously granted
certain lands to a certain Pagoda. Some of those lands had been seized by invading enemies and others. The remainder had been taken away from
the Pagoda by the Mahometan chief who destroyed the kingdom. Certain lands supposed to be those which formed that remnant had been
restored, or were said to have been restored to the Pagoda by a certain Mahratta chief. If so, they had been again usurped by a Mahometan ruler:
and for a period of some forty five years their revenues had certainly formed part of the revenues of the Circar. In such case was it, or was it not
necessary for the British Government to make an enquiry into the nature of the original grant; to endeavour to trace separately the ownership of
each parcel of land which was represented in certain very doubtful accounts to be Hafta Devasthana, through endless political changes and
convulsions to the time of the alleged grant? And if it appeared that the alleged grant had in fact been made, and that the lands alleged to the Hafta
Devasthana lands had undoubtedly formed part of the original endowment, to restore them parties who, if they had ever possessed title deeds,
could not produce them or give secondary evidence of their contents, and who had certainly been out of possession for a period of more than forty
years.
Had the Board been made aware of the real nature of the question to be decided, there can be little doubt that they would have passed a very
different order. But as it happened, their order led to no results. For some reason which cannot be ascertained, Mr. Hurdis never made the
proclamation relating to the transfer of the lands, and never transferred them. And the Hafta Devasthana lands are to this day in the possession of
Government, and bring in a revenue amounting to no less than Rupees 50,000 and odd. The question of their disposal was revived in 1849 and
again in 1859:"".
We have elsewhere extracted the passage from pages 148 to 151 of Nelson''s Manual to note that an advice was given to restore possession
of the endowed properties to the respective pagodas and that the Government occupied the position of a trustee.
The above are the materials available for the period 1817 to 1863.
In 1863, the Religious Endowments Act (Act XX of 1863) came to be passed. As per Section 4 there shall be transfer etc., of trust property
in charge of Revenue Board of trustees. Section 4 runs as follows:-
Transfer to trustees, etc., of trust property in charge of Revenue Board - In the case of every such mosque, temple or other religious
establishment which, at the time of the passing of this Act, shall be under the management of any trustee, manager or superintendent, whose
nomination shall not vest in, nor be exercised by, nor be subject to the confirmation of the Government or any public officer, the State Government
shall, as soon as possible after the passing of this Act, transfer to such trustee, manager or superintendent, all the landed or other property which,
at the time of the passing of this Act, shall be under the superintendence or in the possession of the Board of Revenue or any local agent, and
belonging to such mosque, temple or other religious establishment, except such property as is hereinafter provided;
Cessation of Board''s powers as to such property.-and the powers and responsibilities of the Board of Revenue, and the local agents, in respect to
such mosque, temple or other religious establishment, and to all land and other property so transferred, except as regards acts done and liabilities
incurred by the said Board of Revenue or any local agent, previous to such transfer, shall cease and determine"".
But the list of properties was not handed over, the Temple had been crying hoarse but of no avail.
From 1863 to 1883, the Temple committee was managing the Temple and its properties as could be seen from Exhibits A.28 to A.41 and the
newly marked documents Exhibits A.46 to A.55. Ex.A.28 dated 21.10.1868 is a letter from the Manager of the Temple to Sekharam Sivarama
Pillai to take necessary steps to guard the honey combs in Vellimalai Kombai Valaikevi, Vannanparai and Bonikallu etc., hills and to get the
records relating to this secured by Sthanikar Narayana Battar and others from the Devasthanam archives. The letter further requires Sivarama Pillai
to fence the gooseberry and the jack trees which are ready to yield. Ex.A.35 is a letter dated 20.5.1868 with regard to lease of coconut groves
belonging to the Temple.Ex.A.36 dated 25.6.1868 is a letter from the Manager of the Temple to the Tahsildar of the Devasthanam in respect of
lease of coconut groves. Ex.A.40 dated 16.12.1866 is a letter from Temple Tahsildar to the Manager of the Temple. It makes interesting reading.
We extract below the letter which is in vernacular.
It is seen that the request of the Tahsildar to do certain repair work to restore water supply from Nupura Gangai and Narayana Nair
Theppakulam, which had been badly affected by reason of the burning out of mountain grass resulting in formation of sand mounds blocking the
flow is rejected by the Temple Manager. Ex.A.41 is a letter from the Ameena of the Temple to Narayanasami Naicker a servant of the Temple to
collect the lease dues from one Kothamalayani in respect of the Mysore Endowment coconut grove. Ex.A.30 is a Kararnama by one Ramasamy in
respect of honey combs in the Alagar Hills belonging to the Temple.Ex.A.31 dated 19.7.1873, Ex. A.32 dated 18.10.1873 and Ex.A.33 dated
12.11.1879 are Kararnamas by different persons in favour of the Temple in respect of the usufructs from the Alagar Hills. Ex.A.46 dated
18.7.1873 is a letter from Ramasamy Pillai to the Manager of the suit temple in respect of lease for collecting honey from the Azhagar Hills
belonging to the Temple. Ex.A.47 dated 4.10.1873 is in respect of lease of the outlayer of roots of Vembatti trees. Ex.A.48 dated 25.11.1874 is
in respect of lease arrears for Mysore Endowment coconut grove.Ex.A.49 dated 30.11.1874 relates to non payment of lease in respect of some
usufructs. Ex.A.50 dated 31.12.1874 is in respect of honey combs belonging to the Temple. Ex.A.51 is also in respect of honey combs in Alagar
Hills belonging to the Temple. Ex.A.52 dated 8.10.1875 is for public tom tom in respect of lease rights for honey combs in the suit temple. Under
Ex.A.53 dated 10.10.1875 the servant who made the tom tom reports to the Temple authorities. Exd.A.54 dated 13.10.1875 relates to the same
event.Ex.A.55 dated 25.6.1880 is in respect of coconut grove under Mysore Endowment. This exhausts the list of documents for the period 1863
to 1883. Almost all the documents recite that Alagar Hills belong to the suit temple and make it abundantly clear that the Temple had been
exercising rights of ownership in respect of the Hills and the usufructs thereon.
Thus Tirumala Naicker had endowed lands to various temples. Chanda Sahib and others intermeddled. Then Collector Hurdis entered the
scene and made an earnest attempt to salvage the position. Regulation VII of 1817 came to be promulgated. The Board of Revenue took over the
management till 1863. From 1863 to 1883, the Temple Committee constituted by the Government was in management. Then the vicious thing
happened. Notification under the Forest Act came to be issued.
We will now turn our attention to the notification u/s 25 of the Tamil Nadu Forest Act, 1883 In paragraph 24 of the plaint it is pleaded as
follows:-
But subsequently in the year 1890 the Government declared the Alagar Hills, the schedule mentioned properties as reserve forest as per the
provisions of Section 25 of the Forest Act. As per the provisions of Section 25 of the Forest Act, only '' forests at the disposal of the Government''
alone can be declared as reserve forests. The Government having come to possession of the hills in order to manage the same as per the provisions
of Regulation VII of 1817 wrongly considered that the schedule mentioned property does not belong to the Temple"".
The first defendant in the written statement in paragraph 14 met the averments in para 24 of the plaint as follows:-
The allegations in paras 24 and 25 are absolutely incorrect. The entire Alagar Hills belong only to the Government. The Nedu Hill and
Chembuki Hill adjacent to Alagar Hills also belong to the Government. All the above said three hills have been classified as '' Reserve Forests''.
The entire Range of Hills vest with the Forest Department as per Government notification No. 187 dated 11.10.1883 published in Fort St. George
Gazette. The notification has been made in accordance with rules and regulations. The suit was declared as R.F since it was a forest at the disposal
of the Government. The entire range of Alagar Hills is adorned by thick foliage and grooves of fruit bearing and shadowed trees, and it was
actually a forest at the disposal of the Government. The suit property was never in occupation of any one, much less the plaintiff temple. Hence it is
false to allege to in para 25 that the plaintiff temple had been exercising right of possession and enjoyment of the suit property even at the time of
the East India Company assumed governance over the territory and continued to exercise control. It is also false to state that the Government was
exercising acts of possession and control, it was only as trustee of Manager of the Temples per the provisions of Regulation VII of 1887"".
The learned counsel for respondents 1 and 2 raised an objection that in paragraph 27 of the plaint it has been pleaded that the order of the
Government declaring Alagar Hills as reserve forest is wrong, illegal and ultravires and therefore, without a prayer for declaration regarding the
Government order, the suit for mere recovery of possession is not maintainable. Counsel also submitted that objection u/s 25 of the Tamil Nadu
Forest Act (hereinafter referred to as ''the Act'') had not been raised in the pleadings. The extract above of paragraph 24 of the plaint answers this
objection clearly. If we find that the provisions of the Act had not been followed as required, then the order would be void ab initio and no
declaration need be sought for.
Let us examine the position with reference to the provisions of the Act.
Section 25 runs as follows:-
The Government may, by notification in the Official Gazette declare any forest which has been reserved by order of the Government previous to
the day on which this Act comes into force to be a reserved forest under this Act;
Provided that if the rights of the Government or of private persons to or over any land or forest produce in such forest have not been inquired into,
settled and recorded in a manner which the Government thinks sufficient, the same shall be inquired into, settled and recorded in the manner
provided by this Act for reserved forests, before the date on which the notification declaring the forest to be reserved takes effect.
All questions decided, orders issued and records prepared in connection with the reservation of such forest shall be deemed to have been decided,
issued and prepared hereunder, and the provisions of this Act relating to reserved forest shall apply to such forests"".
The Section contemplates that there should be a previous order reserving any forest before it is declared by notification as a reserve forest. As
rightly pointed out on behalf of the appellants, no order of such reservation has been produced in the present case. Learned counsel for
respondents 1 and 2 contended that in view of the proviso it should be held that the Government was satisfied that the rights of the Government or
of private persons had been inquired into, settled and recorded in a satisfactory manner. This contention overlooks that there was a further
notification issued u/s 4 of the Act as could be seen from Ex.B.6 filed in the other suit. The learned Judge, who tried that suit has adverted to this in
paragraph 15 of his judgment. In page 5 of Ex.B.6, this is what is found-
XXI Madura Madura -and Melur Alagarmalai North:-Cultivated lands of Melur Taluk. East:.do. South:.do. West:.do. Melur Taluk.
In page 9, it is stated as follows:-
No. 189- His Excellency the Governor in Council is pleased to notify, u/s 4 of the Madras Forest Act (Act No. V of 1882) that it is proposed to
constitute the following area in the Madurai District a ""Reserve Forest"" under the said Act"".
In page 11 it is stated as follows:-
His Excellency the Governor in Council further appoints Mr. F.R. Rabinson, Assistant Collector to be Forest Settlement Officer and the District
Forest Officer of Madura for the time being to attend at the inquiry prescribed by Chapter II u/s 4.
His Excellency the Governor in Council further appoints the Collector of the District for the time being to hear appeals u/s 14"".
There is thus substance in the contention on behalf of the appellants that the Government was not satisfied with Section 25 notification and that
was why the notification was issued u/s 4. Respondents 1 and 2 have not produced any material to show that any order as contemplated u/s 10
was passed. Merely on the basis of Ex.B.6, it cannot be assumed that anything in furtherance of Section 4 was done as contemplated u/s 6 and
whether any enquiry as per Section 8 was conducted. In the absence of any supporting material, it cannot be held that the mandatory requirements
under the various provisions of the Act had been complied with. It is well established that statutory mandate in an expropriating statute, must be
strictly observed and its observance is a condition precedent to the whole jurisdiction conferred.
In Sri Perarulala Ramanuja Jeer Sxvami vs. The Secretary of State for India in Council through the Collector of Tinnevelly ((1910) VI Ind Cas
691) a Division Bench of this Court has held that where a claim was not raised and decided, Section 25 of the Forest Act does not apply, and
Sections 6 and 17 do not extinguish a right merely because it was not claimed at an enquiry by the Forest Committee. It has been further held that
where the evidence showed that the lands in suit had been attached to the Temple, then it was for the opposite party to show that the Temple had
not acquired ownership.; That was also a case where the forest in question was reserved u/s 25 of that Act as one which had been reserved by
order of Government previous to the day on which the Act came into force. Before the Act came into force, the forests were visited by a
Committee, who took evidence on claims to various rights within the area which it was proposed to reserve and reported their opinion upon them
to the Board of Revenue and the Government. At this enquiry, claims were made on behalf of the institution the plaintiff in the suit and the appellant
before this Court- a claim of a right to cut firewood free within the whole Tirukarangudi forest and a claim of a right to free enjoyment for temple
purposes of the forest at Nambikovil and for two miles westward. These claims were not the subject matter of the suit; on the contrary ownership
in the forest itself was claimed in the suit. There was no enquiry into this claim by the Committee nor was there any settlement or record of any
such claim. The Government Order marked in the suit also did not refer to any such claim. In such circumstances, the Bench held that it was not a
question decided u/s 25 and that Sections 6 and 17 were not applicable that Section 25 refers only to questions which have been decided orders
which have been issued or records which have been prepared and has no application to a claim which has never been made.
In Mysore Balabis(sic)na Rao.vs. The Secretary of State for India in Council ((1915) 19 M.L.J. 276) another Division Bench of this Court,
has in a case, where the Forest Settlement Officer failed to give plaintiff owner of the adjoining land the notice prescribed by Section 6 of the Tamil
Nadu Forest Act and the final notification u/s 16 was made declaring the land reserved land, held that the proceedings of the Settlement Officer
were without jurisdiction and could not affect plaintiff''s right of action under the general law. It has been further held that the irregularity was not
cured by the plaintiff coming to know of the proceedings before the final proclamation and his failure to object.
65.Though the learned Judge who tried O.S.178/1982 has adverted to this, he has not given a finding in this regard. The learned Judge who
decided O.S.171/1987 has misconstrued the provisions of Section 25 and assumed without any basis that the Government was satisfied and that
the notification had reached finality. The finding in O.S.171/1987 cannot therefore, be sustained. The notification purported to have been given u/s
25 of the Tamil Nadu Forest Act has therefore to be held to be illegal and void. We accordingly hold so.
Ms. Selvi George relied on the following paragraph in decision of the Supreme Court in T.N. Godavarman Thirumulkpad Vs. Union of India
and others,
The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance;
and therefore, the provisions made therein for the conservation of forests and formatters connected therewith, must apply to all forests irrespective
of the nature of ownership or classification thereof. The word ""forest"" must be understood according to its dictionary meaning. This description
covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest
Conservation Act. The term ""forest land"", occurring in Section 2, will not only include ""forest"" as understood in the dictionary sense, but also any
area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2
of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must
apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the
decisions of this Court in Ambica Quarry Works v. State of Gujarat and Ors., (1987) 1 SCC 213 Rural Litigation and Entitlement Kendra Vs.
State of U. P., and recently in the order dated 29.11.1996 (Supreme Court Monitoring Committee.v. Mussoorie Dehradun Development
Authority- WP (c) No. 749 of 1995 decided on 29.11.1996). The earlier decision of this Court in State of Bihar Vs. Banshi Ram Modi and
Others, has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position
emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority. This has become
necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in
such area which is clearly contrary to the decisions of this Court. It is reasonable to assume that any State Government which has failed to
appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay"".
and contended that willy nilly the suit hills have been declared to be Reserve Forest and there can therefore be no going back. We do not agree.
When the very procedure adopted is questioned as illegal and void, it is highly illogical to contend that it is a fait accompli and therefore, it cannot
be set at naught.
Counsel also relied on an interim order passed by the Supreme Court in Writ Petition (Civil) No. 202/1995 on 7.5.1999. We fail to see the
relevance of the orders to the facts on hand.
The learned counsel then cited the decisions reported in AIR 1930 57 (Privy Council) and Kalyanpur Lime Workers Ltd. Vs. State of Bihar
and Another, and submitted that no evidence could be looked into for a plea not raised. The principle as far as it goes is beyond contention. But
counsel was unable to point out as to what plea had not been raised for which the Court had been asked to look into evidence. Counsel referred
to the decision in S.S. Yelmeli vs. Chanabasappa Basappa Warad ( AIR 1979 Karn 52), wherein it has been held that the decision of a case
cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Here also, we do not find that the
appellants are attempting to travel outside the pleadings.
The next question relates to limitation.- whether the appellants can invoke the provisions of Section 10 of the Limitation Act claiming the
Government to be a trustee. We have already held that the defendants have kept back material documents notwithstanding the plaintiff calling upon
them time and again to produce them. From Nelson''s Manual of Madura Country, we have been able to see that Tirumala Naicker endowed large
extents of properties to various temples including the suit temple. Over a period of time there was confusion and anarchy. Between 1801 and
1817, Mr. Hurdis, the first Collector of the Madura Country took charge of the administration of the District as also management of the suit
temple. This position continued till 1817 when Regulation VII came to be promulgated and the Board of Revenue took over the administration till
1863 when the Temple was handed over to the Temple Committee under Act XX of 1863.
In 1883, the notification u/s 25 of the Forest Act is issued. We have dealt with the validity of the proceedings under the Forest Act elsewhere
in this judgment. In our view, there can be least doubt that during the relevant period, viz., 1817 to 1863, the government had been a trustee in
respect of the properties belonging to the plaintiff temple. Time and again, the Government had been expressing a desire to hand back the
properties to the respective pagodas.
In Srinivasamurthy vs. Venkata Varada Iyengar and others (21 M.LJ. 669 = 34 Madras 257 (Privy Council) it has been held that no person
who has accepted the position of trustee and has acquired property in that capacity can be permitted to assert an adverse title on his own behalf
until he has obtained a proper discharge from the trust with which he has clothed himself.
In Pachaiyappa Chetti Vs. Sivakami Ammal, the facts were as follows:-
Plaintiff was the daughter of one P who, with his brother, formed an undivided family. They carried on money lending dealings and entrusted their
dealings to their brother-in-law, S, the father of the defendant. S continued those dealings for some time and maintained accounts for the moneys in
his hands. In 1906 P''s brother divided off from him and removed his share of the property from the hands of S who, however, continued to deal
with the property of P until the latter''s death in February, 1912, and even after that date remained in possession of all his property.
Shortly before his death, P directed S to hold his property for the benefit of his wife and daughter (the plaintiff). S agreed to it and just before his
death told his son, the defendant, to continue the arrangement and pay the ladies the moneys of P when wanted. At the time of his death S also
informed the plaintiff and her mother that his son would continue to hold the property on their behalf. The bulk of the property originally entrusted
to S was presumably money, and possibly promissory notes and bonds; there was no evidence that at that time any mortgages or immoveable
property existed. The evidence showed that P''s friends were subsequently lent out by S on bonds and mortgages taken either in his own name or
in the name of the defendant. The plaintiff, alleging that all the properties of her father were vested in S, and, after him, in his son, the defendant, in
trust for her, sued the defendant for an account. The defendant, admitting that the properties vested in him, contended that they vested in him
absolutely and that the plaintiff had no interest therein, and that the suit was barred by limitation. The contention of the defendant was found against,
and that finding was not disputed in appeal.
It was held, (1) that, in view of the pleadings and the course of trial in the court below it was not open to the defendant to plead that the plaintiff
had not proved an effective transfer of the properties: (2) and that Section 10 of the Limitation Act applied to the case and the suit was not barred.
The properties were originally vested in S in trust for a specific purpose, the trust being at the time one for the benefit of P himself. There were no
mortgages of immoveable property at that time, and therefore, no registered instrument of transfer was necessary, and the property would vest in S
by the mere transfer of possession coupled with the intention of the parties that such delivery of possession should vest the property in S. On the
conversion by S of the moneys and bonds into mortgages, such mortgages vested in him for the same purpose. The subsequent direction by P that
the property should be held for the benefit of his wife and daughter was merely an alteration of the purpose of the trust. In both cases, the property
was held for a specific purpose and an express trust, within the meaning of Section 10 was undoubtedly created"".
In the present case merely because by an invalid notification, the Government purported to convert the Temple property into Reserve Forest,
the Government will not cease to be a trustee or that the property shall cease to be held for the benefit of the Temple.
In AIR 1948 76 (Privy Council) it has been held that a trustee entering into possession of property belonging to the trust cannot, whilst
remaining a trustee, change the character of possession and assert that he is in possession as a beneficial owner.
In Venkatarama Naidu and Another Vs. Jayammal and Another, it has been held that a person in such possession which had its foundation in a
fiduciary obligation without discharge of it by redelivery to the trust or its representative, cannot plead that it is for that representative to show that,
within 12 years of his suit he was in possession.
In S.R. Varadarajulu Naidu Vs. Papanasam Labour Union, Ambasamudram and Others, dealing with Section 10, it has been held as follows:-
The specific purpose, u/s 10 Limitation Act, 1908, must be a purpose that is either actually and specifically defined in the terms of the will or the
settlement itself, or a purpose which, from the specified terms, can be certainly affirmed. So long as the purpose specifically appears in writing, that
will satisfy the requirement of Section 10. It is not necessary that the purpose should only find an express mention in a formal document. A further
requisite of Section 10 is that the property should have become vested in the trustee for any specific purpose. Vesting in the context means that the
trustee has absolute control over the trust property. It may also imply that the trustee as such is the legal owner of the property which he has to
apply for purposes of the trust"".
In Uppalapati Venkataratnam.vs. Sri Chennakesavaswami Temple, Uppalapadu, represented by its Executive Officer, P. Suryanarayana
(1971 2 An.W.R,.383), it has been held as follows:-
A trustee by being merely removed from the Office of trusteeship, is not discharged of his obligations towards the Trust. When as a trustee, he
was in possession of the Temple property, his fiduciary capacity as that of a Trustee could be discharged only by handing over possession of the
Trust property to the successor trustee. The defendant-appellant has not obtained such discharge. His possession even after the removal would be
in the fiduciary capacity of a defacto trustee. Therefore, his possession would still be the possession of the Temple. Therefore, neither the question
of temple being out of possession, nor of the defendant, an extrustee, being in adverse possession arises"".
As pointed out by the Supreme Court in Sri Varadaraja Perumal Temple vs. K. Ramachandra (dead) by L.Rs. And others (1996 1 Law
Weekly 69), the spirit and purpose behind Section 10 of the Limitation Act reflect the public policy to protect trust properties.
In the present case, the Government was the trustee in management for the period 1801 to 1863. From 1863 to 1883, it was the Temple
committee constituted under Act XX of 1863 by the Government. The Government did not hand over the list of properties belonging to the
Temple to the Temple committee. By purporting to act u/s 25 of the Forest Act, the Government betrayed the trust reposed in it. Section 10 of the
Limitation Act will definitely apply. The suit is not barred by limitation. The finding contra by the trial court | is erroneous and cannot be sustained.
It is I vacated. The lower court has found fault with the plaintiff for not producing documents of title. The material documents are with the
defendants. They do not say that they do not have them. What they say is they are not able to trace them. In such circumstances, the learned
Senior Counsel submitted that lost grant is to be presumed. Counsel relied on Nagrentha Mudaliar.vs. Sami Pillai and Another (A.I.R. 1936 Mad
682=44 L.W.139 = ILR 59 Madras 979) wherein it has been laid down that ""to infer a doctrine of lost grant or a claim based on prescription all
that is necessary to be alleged is long continual and peaceful possession. Where these incidents are found the Court will if possible presume a grant
of the right in question"". There can hardly be any doubt that either the Temple had been in long, continual possession or the Government had been
in possession as trustee on behalf of the Temple. This is a case of lost grant, the Temple had been exercising acts of ownership over the suit hills for
several centuries.
From 1883 till the filing of the suits, the Temple had been addressing letters to the Government and the Forest Department for permission to do
this or that in respect of the suit hills. In our view, this cannot be put against the Temple. It was done in ignorance of its rights and a trustee cannot
take advantage of a situation like this. Memorials had also been sent to the powers that be for restoration of its property.
We have adequate materials in the present case to hold that the suit hills belong to the Temple. The Government was a trustee in possession on
behalf of the Temple. The notification u/s 25 of the Tamil Nadu Forest Act is non est and void. The conclusion reached contra by the Court below
in both the suits cannot be sustained.
When once it is held that the proceedings purported to have been taken under the Forest Act are void, the ownership in the suit temple of the
suit hills will revive; the lands hitherto treated as Reserve Forest will cease to be so and revert to the plaintiff temple administered by the
Government through one of its wings viz., H.R.& C.E Department and will henceforth be managed by the plaintiff temple through its Executive
Officer acting to the dictates of the H.R. & C.E. Department. In effect the management changes hands from one Department to another
Department of the same Government. The judgment and the decree, dismissing the suit O.S. No. 171 of 1987 are set aside. The suit shall stand
decreed as prayed for. No costs. The other suit apart from seeking declaration of the suit hills as belonging to Azhagar Koil, wants recovery of
possession of the entire hills including the 3 acres of land ordered to be assigned to the Executive Officer of Sri Arul Mighu Murugan Temple.
While declaring the title as prayed for, we direct that it is upto the H.R.& C.E. Department to maintain the assignment in favour of the other temple
by passing suitable orders as per law. Both the appeals are allowed as indicated above. There will be no order as to costs. Consequently, C.M.P.
Nos. 7097 and 12082 of 1989 are closed.