Chinnasamy Naidu and Others vs K.S. Sengoda Gounder and Others

M. Chockalingam, J.—This second appeal is brought forth from the judgment of the learned Principal District Judge, Salem, made in A.S.

No. 67 of 1992 by the defendants 2 and 4 to 17 in a suit for declaration that the suit property belonged to the suit mentioned temples and for

permanent in junction, whose defence was rejected by both the Courts below.

The following facts are noticed in the pleadings of the parties :

The public temples, called Mariamman Temple at Sengodampalayam and Vinayagar Temple at Kailasapalayam, were constructed by the

ancestors of the plaintiffs. One Seeranga Gounder as Dharmakartha, was administering the temples for 50 years. Thereafter, one Sengoda

Gounder was administering the same for 10 years. The first plaintiff acted as Dharmakartha from 1966 till 1980. The suit property belonged to the

said temples. They were registered in the names of the temples. The suit property was utilised for the purpose of conducting various poojas. The

defendants 1 to 5, who belonged to the family of priests, managed to obtain a fraudulent and invalid patta in the year 1960, without complying with

the provisions of Madras Minor Inam Abolition and Conversion into Ryotwari Act 30/1963, as if they have purchased the suit lands, and they

were in possession for more than 12 years. The same is void and of no legal effect. They attempted to sell the property in the year 1981. When the

plaintiffs questioned the same, the defendants filed a suit in O.S. No. 284/81 on the file of the District Munsiff''s Court, Sankari, for declaration and

permanent injunction. The said suit was transferred to the District Muinsiff, Tiruchengode and was renumbered as O.S. No. 734/81. The

defendants also initiated proceedings u/s 145 of Cr. P.O. The Executive Magistrate passed an order therein, keeping the property under

attachment till the Platter is decided by the Civil Court. They filed a petition to withdraw the said suit. They were also attempting to plot out the suit

lands. The patta cannot confer title, and thus the defendants'' title was fallacious. They have misled the authorities to issue patta. Even as per the

partition deed dated 10-12-1942, executed between the first defendant and others, the patta stood in the name of the temples. Since the property

was held in trust by the predecessor of the defendants, they were not entitled to claim adverse possession. They never denied the title of the

temples. Hence, the plaintiffs filed this suit in a representative capacity and separate affidavit under Order 1, Rule 8 of CPC has also been filed.

The suit was vehemently resisted by the defendants, stating that there is no dispute regarding the 2nd item of the suit property; that the first item

of the suit property only belonged to them; that originally the suit lands were Devadayam lands; that the defendants and their forefathers were doing

poojas at the temples for more than 100 years, and they have been enjoying the property; that the Government took the lands under Act 30/1963,

and thereby the temples lost title; that after due enquiry, the Settlement Tahsildar issued patta in favour of the defendants, and they were directed to

pay compensation; that accordingly, they paid Rs. 3,107/- for these lands; that no objections were raised either by the plaintiffs or by the villagers;

that the petition filed by a non-hereditary Trustee before the Minor Inam Tribunal, Salem, was rightly dismissed; that the Tribunal recognised the

patta that was granted in favour of the defendants; that the revision filed before the High Court by the aggrieved party was also dismissed; that the

suit property was also not utilised for the purpose of conducting religious functions, as alleged by the plaintiffs, that since the villagers gave lot of

troubles to the defendants, they initiated proceedings u/s 145 of Cr. P.C. that the Sub-Collector, who enquired the matter, found that the patta was

rightly granted in their favour; that the suit in O.S, No. 734/81 was rightly withdrawn by them, since the same was no longer necessary, in view of

the final orders passed by the Inam Tribunal; that the defendants were the absolute owners of the first item of the suit property; that they were

entitled to deal with the same; that the plaintiffs had no right to question the defendants about their intention to sell these lands; that the plaintiffs

cannot invoke the provisions of Section 10-C of the Minor Inam Abolition Act, since they did not object to the grant of patta in favour of the

defendants; that in view of the patta in their favour, they have been in continuous open and uninterrupted possession of the first item of suit

property; that when the villagers applied to the Collector of Salem to conduct the festival in these lands, the defendants filed O.S. No. 85/83 for

declaration and injunction, and the same was decreed, and it is still in force; that the sale deed in favour of the first defendant dated 10-12-1942

also establishes the case of the defendants that the temples; are no longer the owners of the suit property; that the suit property is not trust

property, as alleged by the plaintiffs; that the plaintiffs had exhausted all remedies before all the forums; that they failed in all the Courts; that it was

held by the High Court in those proceedings that no fraud has been either alleged or proved in respect of the patta granted in favour of the

defendants; that the further declaration sought for as to the title of the temples is preposterous; that the plaintiffs cannot reopen all the issues, raised

in the earlier proceedings, since they have already been over, and hence, the claim of the plaintiffs was to be rejected.

The trial Court framed the necessary issues, tried the suit and granted the relief, as asked for. The aggrieved defendants 2 and 4 to 17 took it on

appeal, and the first appellate Court, on consideration of the submissions made and scrutiny of the materials available, affirmed the judgment of the

trial Court by dismissing the appeal. Hence, this second appeal has been brought forth by the said defendants.

At the time of admission, the following substantial questions of law were formulated for consideration :

(a) Whether the suit without following the mandatory provisions of Order I, Rule 8(2), CPC is liable to be dismissed, since the said provision is a

pre-requisite for the trial of the suit?

(b) Whether the appellants have perfected title to the first item of the suit property by adverse possession?

(c) Whether the suit, as framed by the plaintiffs, is maintainable after the issue of patta (Ex. B-26,) and after the order passed by this Court (Ex. B-

33)?

(d) Whether the plaintiffs are entitled to the prayer of injunction, when the temple had lost its title, since the appellants have perfected title to the suit

first item by adverse possession?

(e) Whether the Courts below have erred in ignoring the law enacted u/s 46 of the Tamil Nadu Act 30/63 Minor Inams (Abolition and Conversion

into Ryotwari) Act, 1963 attaching finality to orders passed by the forum constituted?

(f) Whether in any event the claim of the respondents is barred by Explanation VIII, Section 11, CPC?

(g) Whether the Courts below have failed to note that suit in a representative capacity even with the leave of Court under Order 1, Rule 8, CPC

will lie only to establish a claim personal to the plaintiffs and not to establish the rights of someone else?

(h) In view of the plaintiffs'' seeking relief in respect of 2 temples, which are administered by the trustees for the time being and in the absence of

any plea that the trustees are either not acting to protect the interest of the temples or acting adverse to their interest, whether the suit as framed is

maintainable?

This Court heard the learned counsel for the appellants and also the learned Senior Counsel for the contesting respondents on those contentions.

Seeking a declaratory relief that the plaint mentioned immovable properties are the religious places for the plaintiffs'' villagers and their common

use and also a relief to declare the title of Sri Mariamman Temple of Sengodampalayam and Vinayagar Temple of Kailasampalayam over the suit

properties and for consequential permanent injunction, the plaintiffs 1 to 6 have filed the instant suit for themselves and as representatives of the

villagers of Kailasampalayam and Sengodampalayam. It was specifically averred in the plaint that the suit properties, shown as items 1 and 2. were

originally given to these temples by way of Maniam; that the plaintiffs'' ancestors constructed the suit temples and have been managing the same;

that one Seeranga Gounder was appointed as a trustee by the villagers, who was managing the temples and administering the properties; that

subsequent to him, one Sengoda Gounder was a trustee for a period of ten years; that the first defendant was a trustee between 1966 and 1980,

and thereafter, a trustee was appointed by the Hindu Religious and Charitable Endowment Department; that the first item of properties was

entered in the revenue records as one belonging to the temples; that the defendants were actually priests of the temples; that in, the year 1963,

when there was a minor inam abolition, patta was granted in their favour on the ground that they were in actual possession of the properties that

time; that in order to set aside the same, there was a petition filed by the plaintiffs along with an application to condone the delay; that the said

application was dismissed; that there was an enquiry by the Executive Magistrate u/s 145 of the Cr. P.C. wherein both the parties were advised

not to enter into the land till the matter is adjudicated upon by the Civil Court; that pending the same, the defendants, taking advantage of the grant

of patta in their favour, made attempts to plot out the properties and sell them to public, and hence, there arose a necessity for filing the suit. The

suit was resisted by the defendants, stating that originally the lands had the character of Devadayam maniam: that they have been enjoying the

properties for a period of 100 years by direct cultivation and enjoyment; that patta has also been given in their favour; that the properties have all

along been dealt by their families by mortgage and otherwise; that they acquired title to the properties by adverse possession; that apart from that,

patta has also been granted in their favour in the minor inam abolition proceedings, and thus, they became entitled to the same absolutely.

Advancing his arguments, the learned counsel for the appellants put forth three contentions :

(i) The plaintiffs have not strictly followed the procedural formalities, as contemplated under Order 1, Rule 8 of the Code of Civil Procedure;

(ii) The defendants have acquired title to the properties by adverse possession; and

(iii) The Civil Court had no jurisdiction to entertain the suit, in view of the grant of patta in favour of the defendants by the mi nor inam abolition

proceedings.

This Court is unable to agree with all or any one of the said contentions.

Insofar as the first contention that the procedural formalities under Order 1, Rule 8 have not been complied with, the same was rejected by the

first appellate Court on proper and sound reasoning. The plaintiffs have come forward with the suit in order to protect the interest of the plaint

mentioned temples, and they have not claimed any right for themselves. As could be seen from the pleadings, by the adjudication to be made by

the Court, ho one, except the defendants, would be affected, if a decree is passed against them, and the interest of the temples alone would be

affected, if the suit is dismissed, and hence, it would be abundantly clear that no prejudice would be caused to anyone in the village. In short, it can

be stated that it was a suit inter se between the plaintiffs, representing the temples and the villagers, and the defendants only, and thus, it was not a

case, where an application under Order 1, Rule 8 of CPC was actually expected of, but, however, it was filed. It is pertinent to point out that when

this application was taken out by the plaintiffs'' side, the defendants, who contested suit, appeared by a counsel and had made an endorsement of

no objection, and hence, the said application was allowed. Having made an endorsement of no objection and having made the application to be

allowed, now the defendants cannot be permitted to say that the procedural formalities under Order 1, Rule 8 of CPC were not strictly followed.

That apart, in the instant case, there is nothing to show that any one of the villagers mentioned, could be affected, if a decree is passed; but only the

defendants who has contested the suit vehemently, could be affected, if a decree is passed. Therefore, this Court is unable to notice any merit in

the first contention.

As far as the second contention that the defendants have acquired title to the property by adverse possession in view of their uninterrupted long

use, this Court is of the considered view that such a contention is thoroughly misconceived. The said contention cannot be countenanced on the

position either factual or legal. What was all contended by the appellants/defendants before the Courts below was that the properties were under

their continuous and uninterrupted possession; that the properties have been dealt with under Ex. B-1 sale deed; that a division was also effected in

the year-1942 under Ex. B-2; that apart from that, they have also been paying kist under Exs. B-3 to B-12; that a patta was also granted in their

favour on 14-4-1968 under Ex. B-25, and thus, they have been in long enjoyment for more than a statutory period. At this juncture, it remains to

be stated that the declaratory relief was asked for in respect of two items of properties. The defendants have not claimed any right over the second

item of property; but, their claim was only in respect of the first item, measuring 4 acres and 82 cents. When a patta was granted in favour of the

defendants, an objection was raised by the plaintiffs before the Minor Inam Tribunal in the year 1984. The third defendant, who was the first

respondent therein, was examined, and his statement, recorded by the Tribunal, was marked as Ex. A-12. The first appellate Court has clearly

pointed out that he has well admitted therein that the said landed property belonged to the temples, and the same was managed by Dharmakarthas,

and the lands also stood in the name of the temples, and they have been paying the kist only in the name of the temples. Equally the fourth

defendant, whose statement was marked as Ex. B-17, had stated that he was appointed as a trustee in the year 1976. He has also stated in the line

of the third defendant,

In the proceedings u/s 145 of Cr. P.C., the first defendant has also deposed that they claimed ownership to the property, pursuant to the patta,

granted in their favour, and prior to that, the properties were owned by the temples. The said statement, recorded from the first defendant, was

marked as Ex. A18. The fourth defendant has also deposed that till the proceedings under the minor inam abolition, the pattas in respect of the

properties in question stood in the name of the temples, and thus, till 1968, when Ex. B26 patta was granted in their favour, they have recognised

the title of the temples all along. It would be abundantly clear that they were in enjoyment of the properties as priests and trustees, in the sense that

their possession was only in respect of the temples and not in their individual capacity. In this context, the law laid down by the Apex Court in

1996 (1) MLW 63 : AIR 1995 SCW 4009 (A.T.S. Chinnaswami Chettiar v. Sri Kari Varadaraja Perumal Temple) is as follows :

This position is also strengthened/supported by the statutory presumption in favour of religious institution like the 1st respondent herein as per

Section 44 especially in the premise of appellants'' failure to prove the contrary. Once the position that the first respondent temple was granted

both warams, the claim of the appellants that they must be granted Ryotwari patta u/s 8(1) must fail as there is no scope for invoking Section 8(1)

by the appellants in view of Section 8(2) extracted above and also on the faces of these cases.

The contention based on adverse possession is misconceived. After coming into force of the Act, the right, title and interest in minor inam lands

vested free from encumbrances with the Government and Ryotwari pattas had to be claimed only under the provisions of the Act and not outside

the Act. If this position is borne in mind, there will be no difficulty in rejecting the contention based on adverse possession. Further in view of

Section 3(g), the claim of adverse possession cannot be countenanced.

Applying the said principles, it can be well stated that both factually and legally the second contention, put forth by the appellants'' side, is not

sustainable.

The last contention, raised by the appellants'' side that the pattas under Exs. B-26 and B-29 were granted in favour of the defendants in the

proceedings 6f the minor inam abolition, and the same has also been agitated by way of an appeal before the Tribunal, and the appeal has also

been dismissed, and thus, it has become final, and that could not be questioned before a Civil Court. The Court is of the considered opinion that

the said contention has no legal force. It is not in controversy that the first item of properties, measuring 4 acres and 82 cents in Survey Nos. 115/2

and 116 were actually maniam lands, given to Kailasampalayam Vinayagar Temple and Sengodampalayam Mariamman Temple. Exs. A-1 to A-3

the certified copies of the inam register, would clearly indicate that the properties were actually given to the temples. Ex. A-4 would also indicate

that those properties were also recorded in the settlement register in the name of the temples. There was a categorical admission, made by the first

defendant, that these properties were maniam lands of these temples, and pattas were also given in the names of the temples all along till 1968,

when pattas were granted in favour of the defendants. He has also admitted that they were in possession of the property, and kist was paid all

along in the name of the temples. At this juncture, it has to be necessarily mentioned that they have neither claimed either Kudivara rights or any

other rights in the property; but, they began to claim ownership in the property in the year 1968, pursuant to the grant of patta. With regard to

minor inam abolition proceedings, the suo moto enquiries were conducted, pursuant to which Exs. B26 and B29 pattas were granted in favour of

the defendants. It remains to be stated that merely because of the grant of patta as one taken place in this case, the ownership of the temples is

neither lost, nor the rights of the temples are extinguished.

It is not the case of the defendants anywhere during all the proceedings that these properties were given to them for the services rendered by

themselves or their predecessors. But, on the contrary, they have recognised that it was a temple maniam, that the properties belonged to the

temples; that it stood in the name of the temples; and that they have been paying kist only on behalf of the temples. From the available materials, it

could be well seen that they were directed to deposit a sum of Rs. 3,107.60 before the patta was granted. As rightly pointed out by the learned

Senior Counsel for the respondents, the patta was granted in the settlement proceedings on the impression that the properties were originally given

to them, and they were in possession of the same, in view of the services rendered; but, the available evidence is otherwise. Nowhere have they

pleaded or any material is available to hold that these properties were given to the contesting defendants, who were all along the priests of the

temples, in view of the services rendered by them. Only on that impression, the pattas under Exs. B-26 and 29 were given to them. The Apex

Court had an occasion to consider the question whether the jurisdiction of the Civil Court was excluded to adjudicate upon the rights of the parties,

when proceedings were actually pending and pattas were granted under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari)

Act, 1963 and had found that the Civil Court has got its jurisdiction to adjudicate upon when the title over the property was in dispute. The said

judgment of the Apex Court has also been followed by the Full Bench of this Court in Srintvasan v. Madhyarjuneswara Swami Pattavaithalai,

Tiruchirapalli District, 1998 (2) MLW 189. In the face of the above judicial pronouncements, it is clear that the jurisdiction of the Civil Court is not

excluded, and the Court can go into the question as to the title, when it is in dispute. In the instant case, the defendants have claimed title to the

property, only pursuant to the grant of patta in the year 1968 under Exs. B-26 and B29, which have been given in the revenue proceedings under

the impression that they have been in possession of the properties and in view of the services rendered by the defendants, but not so. On the

contrary, they have recognised the title of the temples all along in all the proceedings as stated supra. Hence, it would be futile on the part of the

appellants to contend that the Civil Court''s jurisdiction was excluded to adjudicate upon the matter, in view of the grant of patta in their favour,

and the proceedings have become final, and thus, they were entitled to the properties.

Therefore, all the above three contentions have got to be necessarily rejected. This Court is unable to see anything to interfere in the judgments

of both the Courts below. This second appeal deserves to be dismissed, and it is, accordingly, dismissed, confirming the judgments and decree of

the lower Courts and leaving the parties to bear their costs.