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Judgment
Srinivasan, J.—The appellant in the Second Appeal is the first defendant in the suit, which is a temple represented by its Executive Officer.
When the appeal was part-heard, the appellant filed C.M.P. No. 8049 of 1996 for receiving the documents filed therewith as additional evidence
in the appeal. It is a petition under O.41, R. 27 of the Code of Civil Procedure. Under that Rule, the Court may allow additional evidence, if (i) the
court, from whose decree the appeal is preferred, has refused to admit evidence, which ought to have been admitted, or (ii) the party seeking to
produce additional evidence establishes that notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not
after the exercise of due diligence be produced by him at the time when the decree appealed against was passed, or (iii) the appellate court
requires any evidence to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. The
present case cannot fall under (i). In the affidavit filed by the Present Executive Officer in support of the petition, it is averred that after assuming
charge of the temple, he searched the old records and on going through the same, he found that necessary records were kept in a bundle. Finding
that certain certificates issues by the Collector of Madras on 26.8.1822 were available, he applied to the Joint Director, Central Survey
Department, Madras-5 for furnishing an Extract from Madras Town Survey Register, since the survey was conducted in 1895-96. A certified
copy of the said extract was issued on 23.4.1996, from which it is seen that the suit property T.S. No. 3814 is shown as belonging to the
appellant-temple. It is stated in the affidavit that the said documents could not be filed earlier in spite of due diligence and the Extract from Madras
Town Survey Register was furnished only recently and non-production of the same earlier is neither wilful nor wanton. It is also stated that the
documents are necessary for proper appreciation of the point arising for consideration in the appeal. Thus, an attempt is made in the affidavit to
bring the case under (ii) and (iii). In the counter affidavit filed by respondents 1 to 4 it is stated that the documents cannot be filed at the Second
Appellate stage, as nothing prevented the temple authorities from filing documents at the earliest point of time. It is also pointed out that the suit is
of the year 1982. It is also averred that the documents are not relevant and admissible. After discussing the relevancy of the document, it is alleged
that a notice was issued to the Devasthanam during the pendency of the suit to produce documents, viz., patta and blue-print sketch showing the
location of R.S. No. 3814 and a notice on 12.4.1986 to the counsel for the temple to produce the register which in page 48 it was stated that the
Devasthanam was entitled for Melwaram. It is also pointed out that the Second Appeal has been in the list for more than two years and there is no
justification for admitting additional evidence at this late stage.
It is no doubt true that the requirements of O.41, R.27, C.P.C., should be strictly complied with before any document is admitted as additional
evidence in any appeal and in particular, in a Second Appeal. A view was also being taken in this Court that no additional evidence can be
admitted in a Second Appeal, as it involves only a question of law. But the matter has been considered in detail and it has been held by a Division
Bench that in appropriate cases additional evidence can be admitted even in Second Appeals. Vide: Kumaraswamy Gounder v. D.R. Nanjappa
Gounder (1977 T.L.N.J.375).
It should not be forgotten that an idol is in the position of a minor. It has been held in Bishwanath and Another Vs. Shri Thakur Radhaballabhji
and Others, that an idol is in the position of a minor and when the person representing it leaves it in lurch, a person interested in the worship of the
idol can certainly be clothed with an ad hoc power of representation to protect its interests. The principle would certainly apply in a case where the
persons in management of a temple have not been as diligent as is necessary in conducting a litigation on behalf of the temple. The court can take
notice of the fact that Executive Officers who are put in charge of the temple are changed periodically and in many a case, they do not get fully
acquainted with the history or affairs of the temple. If there is some slackness on the part of the Executive Officer or even the trustees of the
temple, it is the duty of the Court to see that the idol does not suffer thereby. Courts should be astute to protect the interests of an idol in any
litigation.
In the present case, the question is whether the suit property belongs to a temple or whether the temple is entitled only to Melwaram and
whether the kudiwaram rests in the plaintiffs. The prayer in the plaint is to declare that the plaintiffs are the absolute owners of the ''B'' Schedule
property, which forms part of ''A'' Schedule Property and for permanent injunction restraining the defendants from interfering with their possession
and enjoyment thereof. While the trial court negatived the case of the plaintiffs and dismissed the suit, the lower appellate court has held that the
plaintiffs are the owners of the kudiwaram and the temple has no right but to collect quit rent and granted a decree in favour of the plaintiffs.
Admittedly, the land has been described as the appellant-temple manyam in all the documents relied on by the plaintiffs. But, there is no document
whatever to prove the details or the extent of the original grant in favour of the temple. No doubt, there are several documents filed by the plaintiffs
describing the right dealt with therein as kudiwaram and proving the possession of the plaintiffs and their predecessors-in-title. At the same time, it
is not in dispute that the plaintiffs and several other occupants of the survey number have been paying quit rent to the temple. It is also admitted that
the temple had been issuing pattas to the plaintiffs and other occupants. There is also no record before the court to show that the land was covered
by the Madras Estates Land Act, 1908, the Madras Estates Abolition Act (26 of 1948), the Madras Inams (Assessment) Act (40 of 1956), the
Madras Inam Estates Abolition Act (26 of 1963) or the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act (30 of 1963).
In such a situation when the appellant comes forward with an application to admit documents, which are apparently official in nature, the prayer
cannot be rejected off-hand on the ground that the representative of the appellant was not diligent to produce the same earlier in the proceedings.
No doubt, the relevancy of the documents is questioned by the plaintiffs/respondents. But, that is a matter which has to be established by evidence.
Whatever may be said of the Collector''s certificates filed as documents nos. 1 to 7, the contention is that they do no relate to the suit property. It
is a matter for the appellant to establish the relevancy by appropriate evidence. But, there can be no dispute whatever that document No. 8, which
is an extract from Madras Town Survey Register for 1895-96 relates to the suit property, as it gives the Re-survey Number as 3814 and the old
Survey Number as 958 Part. In Column 5, R.S. No. 3814 is described as ''private'' as opposed to ''Government, Inam or Poramboke''. It is seen
from the said document that R.S. No. 3797 is described as ''Inam'', whereas R.S. No. 3814 is shown as ''private'' land. With regard to both the
lands, in the column providing for the name of the owners, it is stated as ''Madavah Perumal Maniam''. In Column 211 the remark regarding R.S.
No. 3814 is that it is exempted from quit rent. Prima facie, the document appears to be relevant and it is certainly a necessary document for
deciding the question which arises for consideration in these proceedings. Hence, I am of the opinion that the documents filed along with C.M.P.
No. 8049 of 1996 have to be admitted as additional evidence, as the matter falls under Clauses (aa) and (b) of 0.41, R.27 of the Code of Civil
Procedure. Accordingly, they are marked as Exs: B9 to B16.
As pointed out already, further evidence is necessary for connecting the Collector''s Certificates to the suit land. Further evidence is also
necessary for the purpose of enabling the court to decide the effect of the entry found in the extract from the Madras Town Survey Register. It is
absolutely necessary for the Court to consider the entire evidence on record including that which may be let in by the parties hereafter to decide the
question as to whether the plaintiffs are entitled to get a declaration as prayed for by them.
As stated already, the suit is of the year 1982 and even the Second Appeal is already ten years old. But, I am afraid that a remand of the matter
is absolutely necessary in the interests of justice for the following reasons:
As stated already, the parties must be given an opportunity to adduce further evidence, both oral and documentary:
Suits relating to other portions of the same Survey Number R.S.3814 occupied by other persons, who are also similarly paying quit rent to the
temple are still pending.
A joint trial of all the suits will safeguard the interests of justice as a common question of law and fact arises for consideration.
But, it is well settled that a remand cannot be made merely to enable a party in adduce additional evidence, even if it is necessary, and that
before an order of remand is made, the appellate court has to find out whether the findings given by the court below are correct or erroneous.
A perusal of the judgment of the lower appellate court shows that it has placed reliance on three circumstances to uphold the claim the plaintiffs.
The first is that there is overwhelming evidence to prove that the plaintiffs are paying quit rent to the temple. According to the appellate judge, the
very fact that quit rent is being paid to the temple shows without any doubt that the temple is having only melwaram right (see paragraph 12). There
is no warrant or justification in law for taking such view. The mere use of the expression ""quit rent"" will not by itself prove that the person who
collects quit rent is the owner off melwaram only. In Mozley and Whitelcy''s Law Dictionary ''quit rent'' has been defined as ''fixed rent paid by the
freeholders and copyholders (especially the latter) of a manor in discharge or acquittance of other services''. A ''copyhold'' is defined in the same
dictionary as ''signifying a tenure by copy of court roll at the will of the lord of a manor according to the custom thereof. It is stated the it is in
manors only that copyholds are to be found, and it is by the immemorial custom of the particular manor that the copyholder''s interest must be
regulated and originally copyholder were villains or slaves, permitted by the lord. In an act of pure grace or favour, to enjoy the land at his
pleasure; being in general bound to the performance of certain services.
In Ramanatha Aiyar''s Law Lexicon ""Quit-Rent"" is defined as ""A certain small rent payable by the tenant in token of subjection. In which the
tenant goes quiet and free. (Tomlins Law dictionary); Chief rent. This is a small yearly payment made by owners of land to a more or less nominal
landlord (2 Blackstone, 42.)"" There is nothing in Indian Law to show that quit rent is payable only to a melwaramdar by a kudiwaramdar. The
question as to the extent of ownership of the person who pays the quit rent and of the person who receives the same has to be decided only on the
basis of the entire evidence on record. Hence, that reasoning of the Appellate judge is erroneous.
The second reason given by the Appellate Judge is that the temple has not proved its case by producing the Inam Register or the Inam Title
Deed. No action has been taken under the legislations abolishing inams and patta has not been obtained under the said Acts by the temple. Hence,
the temple has no right to the land. The reasoning is obviously erroneous. The Appellate judge has forgotten that the expression ''manyam'' has a
significance. In the book ''Land Tenures in the Madras Presidency'' by S. Sundararaja Iyengar, 1st Edition, it is said in page 92:-
The existence of beneficial grants, known originally by the Sanskrit name, manyams, and latterly by the Arabic term, inams, after the Mahomedan
conquest, can be traced to a very remote antiquity in India. It was the custom of the Hindu Government to grant assignments of lands, revenue
free, or at low quit rents, for the payment of troops and civil officers, for the support of temples and their servants, and charitable institutions, for
the maintenance of holy and learned men, or for rewards for public service.
At pages 94 and 95 of the same book it is said:-
These beneficial grants are now known as inams, an Arabic term introduced into India after the Mahomedan conquest, the terra in use before that
date being manyams. The term manyam is now applied in South India to land held either at a low assessment or altogether free, in consideration of
services done to the State or Community, as in the case of the officers and servants of the village. This is the definition of that word given in
Wilson''s Glossary, 330, which represents the later signification of the term after the introduction of the Arabic term inam. The word inam literally
means a gift. Wilson''s Glossary, 217, defines it thus: ""In India and especially in the South, and amongst the Mahratas, the term was specially
applied to grants of land held rent-free, and in hereditary and perpetual occupation; the tenure came in time to be qualified by the reservation of a
portion of the assessable revenue, or by the exaction of all proceeds exceeding the intended value of the original assignment; the term was also
vaguely applied to grants of rent-free land, without reference to perpetuity or any specified conditions. The grants are also distinguishable by their
origin from the ruling authorities, or from the village communities, and are again distinguishable by peculiar reservations, or by their being applicable
to different objects."" In former times the distinction between a jagir grant and an inam grant was that the former was a larger political grant implying
conditions of service and the latter, a small personal grant with no condition of service.
It is well settled that only if the inam is granted by the sovereign and confirmed by the British Government, it would fall within the scope of the
legislation abolishing inams. There can be grants by private owners or villagers in lieu of wages for services etc., which cannot be treated as inams,
for, there is no grant of revenue either in whole or part by the Government. It can only be treated as the right of the person concerned to remain on
the lands under an arrangement entered into between the grantors on the one hand and the grantees on the other. One such instance of grant made
to the artisans of the village by the villagers has been considered by a Division Bench of this Court in Uthira Somasundareswarar v. Rajanga (AIR
1965 Madras 355). After referring to the fact that the terms of the original grant were not available, the Bench said that the grant in that case was
one by the villagers, which did not carry with it a grant of the assessment on the land and it cannot be regarded as an inam. The above passages
from the book on Land Tenures have been extracted by the Bench in its judgment. Then the Bench observed:-
It is true that the respondents at an earlier stage admitted that the lands were held by them as manyam, but the fact the party calls it a manyam
cannot invest it with a charter which it does not possess, that is, a grant of revenue.
It is a settled proposition that in this part of the country there can be a grant by persons other than the Sovereign and such grants will not be inams
falling within the scope of the Abolition legislation. Hence, the second reason given by the Appellate Judge is also erroneous.
The third reason is that the documents filed by the plaintiffs showing their dealings used the expression ""kudiwaram"" and therefore, they are
entitled to kudiwaram as against the melwaram owned by the temple. The expression ''kudiwaram'' literally means, ''the share of the cultivator in
the produce raised'' and in that sense, it belongs to the cultivating tenant whether he has permanent occupancy rights or is a mere lessee from year
to year or even a tenant at will, long as he is in possession of the land. (See Naina Pillai Markayar v. Ramanathan Chettiar (33 M.L.J.84) and
Suryanarayana v. Patanna (I.L.R.41 Madras 02).
In this connection, the Appellate judge has failed to consider the admission contained in paragraph 10-A of the plaint that the temple has issued
pattas to the plaintiffs'' predecessors for the extents enjoyed by them as well as to various other persons surrounding and adjacent to the suit
property. Exs. A-39 to A-41 are photo copies of some such pattas. They show that these pattas have been issued by the trustees of the temple.
They mention the extent of the land as well as the amount to be paid to the temple. In Column 8 of the patta, the nature of the property is
mentioned as ""hut"". The said documents are copies of pattas issued in 1953. They show that even at that time, the lands had ceased to be ryoti
lands. There are other documents in evidence and in particular Exs. A-12 and A-13 which prove that as early as in 1936-37, the Corporation of
Madras had made assessments and issued tax demands on the footing that the properties were house properties. The question whether the lands
were ryoti lands at the time when the Abolition Acts came into force has not at all been adverted to by the Courts below. In
Vedaranyeswaraswami Devasthanam v. State of Madras (1965-I-M.L.J.l), a Division Bench of this Court has traced the history of ''inams'' in this
State and pointed out that an inam by Sovereign authority need not necessarily consist merely of transfer of its right to revenue, but it may also
include the grant of the soil, the extent of the grant depending in each case on the construction of the terms thereof and that the dictum in the
concept of beneficial interest in land is and can be only with reference to cultivated lands in a village and the possession in regard to uncultivated
and uncultivable lands will be with the Sovereign the State alone, as an entire interest. If they were not ryoti lands, the payment of rent to the temple
by the occupants, be it called quit rent or by other name, will have much significance in the case. The lower Appellate Court has also not adverted
to the fact that the land had always stood registered in the name of the temple as ''temple manyam'' as is evident from the documents produced by
the parties.
It is contended that the entries in Ex. B-4 prove that the temple is the owner of only the melwaram and the kudiwaram is owned by the
plaintiffs and other occupants. There is a fallacy in the contention. Reliance is placed on the note at the end of Ex. B-4. But that note only relates to
T.S. No. 1338, which is shown as item No. 6. The suit property is shown as item No. 2 R.S. No. 3814/1. The entry in the remarks column is that
is not known whether the lands have been sold by the temple and that the lands were assessed for urban land tax. But, Ex. B-3 dated 21.10.1978
proves that the lands were exempted from payment of Urban Land tax on the ground that they belonged to temple. Ex. B-1 also show that the
lands are to be held rent free so long the income derived is used for the benefit of the temple.
The judgment of the Appellate Court thus suffers from many infirmities and the matter requires fresh consideration. As I have pointed out
earlier that further evidence is absolutely necessary, the matter has to be remanded to the trial court Consequently, the Second Appeal is allowed
and the judgments of the courts below are set aside. The suit O.S. No. 7012 of 1982 is remanded to the file of the City Civil Court, Madras for
fresh disposal in accordance with taw. Both the parties are permitted to adduce additional evidence. As the suit is already 14 years old the trial
court is directed to dispose of the same as early as possible and preferably before the 31st March, 1997. The Principal Judge, City Civil Court,
Madras is directed to post all the other suits which are said to be pending in that court relating to R.S. No. 3814 along with this suit O.S. No.
7012 of 1982 to be tried together. The appellant is directed to furnish a list of all suits to the Principal Judge, City Civil Court, Madras, on or
before 31.7.1996. The suit shall be called in the Court of the l1Assistant Judge, City Civil Court, Madras, on 1.8.1996. The parties are directed to
be present in that court on that date. It is open to the Principal Judge, City Civil Court, Madras, to direct any other Assistant Judge of the City
Civil Court to try all the suits together in accordance with the administrative convenience. The appellant herein will be entitled to the refund of the
court fee paid in the Second Appeal and respondents 1 to 4 herein are entitled to the refund of court fee paid by them in the lower appellate court
in the First Appeal. The Registry will issue the necessary certificates there for. The parties will bear their respective costs.