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Judgment
Shanmukham, J.—The plaintiff who lost in both the courts below is the appellant. He filed O.S. No. 189 of 1975 in the court of the
Subordinate Judge, Coimbatore, for declaration of title to suit property and for injunction to restrain toe defendants from interfering with the
plaintiff''s possession and enjoyment. The trial Court framed six issues and held that the plaintiff has no right in the suit property; that the plaintiff is
not entitled to any declaration or injunction; that the suit is not bad for want of notice under S. 80, C.P.C., that the suit is not barred by res judicata
and that the Court has jurisdiction to entertain the suit and ultimately dismissed the suit with costs. On appeal, the learned Additional District Judge,
Coimbatore (West) framed three points for determination, viz:-
(1) Whether the plaintiff has title to the suit property?
(2) Whether the plaintiff is in possession of the suit property?
(3) Whether the plaintiff is entitled to the declaration and injunction prayed for?
Ultimately the learned Judge agreed with the trial court that the appellant has no title to the suit property and is not entitled to any declaration or
injunction. I must straightway point out that the judgment of the final court of fact is rather cursory. Be that as it may. The substantial question of
law that was formulated at the time of admission of the appeal is-
Whether the grant of patta under Tamil Nadu Act 30 of 1963 in 1965 in favour of one Chavadi Vinayagar temple of Iyampalayam of which
respondents 3 to 6 are the trustees will take away the right to possession of the plaintiff-appellant as an usufructuary mortgagee of the property
which came to be executed in the year 1880 without the usufructuary mortgage being redeemed.
At the outset it is essential to point out that Mr. T. Rangaswami Iyengar, learned counsel for the appellant, had unequivocally stated that the
appellant accepts the title of the temple in the suit property but then the appellant is claiming only as a Bogyamdar vis-a-vis the suit property. The
appellant''s case is that both the Varams belong to the temple; that being a small temple, the Poojari was also acting as a trustee of the temple; that
after the demise of Suppandi his wife Suppakkal came to act as a trustee as there is no impediment in the Hindu Law for a woman to act as a
trustee; and in the capacity of trustee, she executed a Bogyam deed in favour of one Jangama Naicker and that the plaintiff as the sole heir, is
entitled to the suit property. The Bogyam deed is dated 22nd September, 1880 evidenced under registration copy of Ex. A1. It is the contention of
the learned counsel for the appellant, that according to the then law of limitation the mortgage ought to have been redeemed, within (sic) sixty years
therefrom, that as it was not redeemed, appellant had acquired title as Bogyamdar by adverse possession, at the expiry of twelve years from 22nd
September, 1940. According to the learned counsel for the plaintiff, in the year 1952, the limited right of Bogyamdar has been acquired by the
plaintiff by prescription. So far as the resumption proceeding is concerned it was not pursued on account of Tamil Nadu Act 30 of 1963, which
intervened in the meanwhile. The Act had not affected the rights of the Bogyamdar though under the Act absolute title in the suit property came to
be vested in the Government. In support of the said contention, the learned Counsel invited my attention to two decisions of this Court, the latter
following the former, and they are:- Seethalakshmi Ammal v G. Krishnaswami Rao and others ILR 1961 Mad. 265 : 73 L.W. 4 (D.B.), and SKM
Muhammaed Mustafa Marakayar v. Udayanachiammal and others ILR 1968-1 Mad. 728 = 80 L.W. 424 (D.B.). It is further contended by the
learned counsel that though the appellant had claimed absolute title in this action, the court has enough powers to would the relief based on the
facts established in the particular case and this proposition of law is sought to be supported by a decision of this Court in P.V. Karuppannan
Ambalam v. Pandari Sundara Raja Aiyar 1939-2-MLJ 645 : 50 L.W. 611.
It is also urged by the learned counsel for the appellant that he now claims only as a Bogyamdar. It is unnecessary whether ibis court can
examine the question of title albeit the settlement officer granting patta under the Act 30 of 1963. Consequently, these is no need to be guided by
the decision in Subramania Gurukkal and others v. Arulmighu Thirumaleeswaraswami Deity, rep., by the Executive Officer and another 97 L.W.
The learned counsel also drew my attention to a decision in Muthuswami Gurukal v. Aiyasami Thevar and others ILR 1964-1 Mad. 566 : 77
L.W. 129, in support of his contention that in small temples there would be a presumption that the Poojari himself was the hereditary trustee of the
temple and also that there was no legal obstacle for a person functioning both as a trustee and Poojari and that in such a situation it was not likely
that the interest of the temple would suffer by a person holding both the offices. He called to his aid a decision of this Court in Venkateswara
Sarma styled Gnanasivacharia Swamial Matadhipati and Guru of Perur Melmath v. S.N. Venkatesa Aiyar and others ILR 1941 Mad. 599 : 53
L.W. 569 (F.B.) of five judges) and another decision of the Rajasthan High Court in Lachhmi Narain and Another Vs. Kalyan and Another, (S.B.
of three judges) to sustain his argument that the limitation will start immediately on the demise of the trustee who made an alienation and that any
subsequent void will not stop the limitation continuing to run.
The immediate question is whether the point formulated at the time of admission of the second appeal and argued by the learned counsel for the
appellant arises out of the pleadings in this case. It has to be noticed at this stage that in C.M.P. 17597 of 1983, as per order, dated 5th January,
1984, the plaint was amended pending the second appeal and by the amendment, relief for recovery of possession is also included.
Notwithstanding the above amendment, the plaintiff has claimed only absolute title by adverse possession. A reading of the amended plaint shows
that according to the plaintiff, the temple was entitled to Melwaram only and the plaintiff is the sole hair of his father Gurusami Naidu, in whose
favour the ''Oppadai Bogyam'' was conveyed under a settlement by Bogyamdar Jangama Naicker, that he has been in exclusive possession in his
own right of the suit properties and has been paying assessment on the land to the Pandarams for the last several years and after it is fully assessed,
is paying the assessment to the Government so that there is no room for doubt that what has been granted in Inam to the temple is Melwaram alone
(Paragraph 6 of the amended plaint) and also that ''the Oppadai Bogyam'' is a usufructuary mortgage and even under the law then existing the
period of sixty years for redemption is over and the parties, irrespective of the fact that there is a temple, as the Pand trams have lost their right to
redeem, the plaintiff has perfected his title as full owner thereof and sixty years having lapsed by 1940, and the plaintiff continued to be in
possession of the property for more than twelve years from 1940 till the Minor Inams Abolition Act came into force and as such no question of
anybody else having a right in the property arises, their remedy having become long ago barred'' (paragraph 9 of the amended plaint). Even in
paragraph 14 which relates to the reliefs, the reliefs claimed are to declare the title of the plaintiff to the suit property, to grant consequential
injunction, in the alternative to deliver possession. Thus it is beyond doubt that the plaintiff claimed title as full owner by adverse possession.
The present contention is that the plaintiff is entitled to be in possession because he had perfected the limited right as possessory mortgage and
there is no bar for such a relief being granted to the plaintiff, vide the ratio in P.V. Karuppan Ambalam''s case 1939-2-M.L.J. 645 : 50 L.W. 611
To attract the above dictum, not only should there have been necessary pleadings by both the parties but also issue should have been raised;
besides, the parties should have adduced evidence. The ruling in P.V. Karuppanna Ambalam''s case 1939-2-M.L.J. 645 : 50 L.W. 611 is that
though a plaintiff bases his suit on title, relief can be given on the strength of his possession alone and in certain circumstances, a decree can be
passed on the strength of plaintiff''s possession though it is not specifically made a ground of relief. It is relevant to recall the principle of law laid
down in Sri Sarangadevar Peria Matam and Another Vs. Ramaswamy Gounder (Dead) by Legal Representatives, The Supreme Court has held
thus:�
In the absence of legal necessity, the lease of 1883 endured only during the lifetime of the previous matadhipathi and terminated on his death in
1915, and possession thereafter of the respondent and his predecessor was adverse to the moth.
Therefore, if the temple were to be bound by the Bogyam of 1880, there must be a specific pleading that the said Bogyam was for the benefit of
temple and also such a pleading is proved by evidence. Above all, the opposite party must have had reasonable notice of such a claim so as to
enable the said party to put forth his defence about such a case. It is needless to point out that the burden is on the alienee and, in the instant case,
the appellant, not only to make such an allegation but also to adduce proof thereof. In this case, there is no reference to the legal necessity of the
Bogyam in the plaint even after the amendment ordered in this court nor is there any evidence, nor was any issue touching the subject. It would,
therefore, follow that the principle enunciated by the Privy Council in AIR 1946 97 (Privy Council) and reiterated by this Court in Kokila and
another v K.M. Rajabathar and another AIR 1957 Mad. 470 : 70 L.W. 457 would govern this case. In the former case, the Privy Council has
ruled that where a plea in any form is not taken before the trial court, there is no trace of it in the pleadings of the party, it is not the subject of an
issue, the trial court does not refer to the plea in its judgment, nor is any evidence led with regard to it, it is not open to the party to take such a plea
for the first time before the appellate Court; while this Court in the latter case had pointed out that where the point was not raised in the written
statement filed by the appellant, but for the first time in the memo of appeal, it would not be just and proper that the appellants should be allowed
to raise this plea in appeal when they did not choose to raise it at the trial and when the person interested did not contest the plaintiff''s claim in the
court below and had not chosen to contest his claim in appeal. Then the plaintiff is not entitled to put forward that the Bog yam is for the necessity
of the temple and is, therefore, binding on the temple and consequently there is still in the plaintiff a right as Bogyamdar and that the same is not
extinguished by the Act 30 of 1963.
Reverting to P.V. Karuppannan Ambalam''s case 1939-2-M.L.J. 645 : 50 L.W. 611, I must say that the facts in the decided case are quite
different from the facts established in this case and therefore, the ratio therein could not be availed of by the appellant in the instant case. In that
case, the suit was for a permanent injunction restraining the appellant from interfering with the respondent''s enjoyment of the suit property and in
the alternative for directing the respondent to put the appellant in possession, the respondent claimed title under an loam grant alleged to have been
made to his predecessor in-title by the Carnatic rulers for the supply of Tulasi to the Kallalagar Devastanam; that the respondent alleged that in or
about the year 1918, the trustees of the Ramalingeswami Mutt falsely set up title to the suit properties and at the instance or so no mediators, the
dispute with them was settled by the trustees giving what is described as release sale deed relinquishing the respondent''s title thereto and since
then, the respondent claimed to have been in possession and enjoyment of the suit properties down to the year 1933, when the appellant disturbed
his possession under colour of a sale deed obtained by him from one Singaram Pillai. The appellant naturally denied respondent''s title to suit
property and in turn he claimed title to one Narayana Paradesi. What was urged before the learned Judge who rendered the judgment is that when
the plaintiff based his suit on title, he could not claim relief on the strength of his mere anterior possession even alternatively and that he could rely
upon possession only as evidence of the title put forward by him but not as an independent ground of claim by itself. In the above back ground, the
learned Judge observed as follows�
In some of these cases, the suits were no doubt dismissed on the ground that the title set up by the plaintiff was not established, and that no decree
could be granted on the strength of mere possession as no possessory title had been put forward in the plaint. But I do not regard these decisions
m laying down an inflexible rule that under no circumstances can a decree be passed on the strength of plaintiff''s possession unless such possession
is specifically made the ground of relief in the plaint.
The claim based on possession is not contradictory to the title claimed by the appellant in that case. Therefore, the learned Judge laid down the law
as stated supra, but in this case, the appellant would give up his case of absolute ownership but claims only a limited title as Bogyamdar. I am,
therefore, constrained to hold that the decision cited supra will have no application to the instant case.
No doubt, this Court has uniformly taken the view that the charge holder would not be deprived of his securities over the same lands which,
though they have ceased to be private lands, continue to be the property of the landholder, as held in Seethalakshmi Ammal v. G. Krishnaswami
Rao and others ILR 1961 Mad. 265 : 73 L.W. 4 (D.B.) and followed in S.K.M. Muhammad Mustafa Marakayar v. Udayanachinammal and
others ILR 1968-1 Mad. 728 : 80 L.W. 424 But in this case the requisite facts as stated above are neither alleged nor proved.
On the other hand what could reasonably be referred that the Bogyam is not for legal necessity and the resultant position as per the Supreme
Court ruling in Sri Saranga devar Peria Matam and another v. Ramaswami Gounder AIR 1966-1-SC 1603, is that the alienation enured only
during the lifetime of Suppakkal and that thereafter the alienee''s possession was adverse to the temple. Venkateswara Sarma v. S.N. Venkatesa
Iyer and others ILR 1941 Mad. 599 : 53 L.W. 569, is another authority for the above proposition that possession after the demise of Suppakkal
in 1914 was adverse to the temple. Perhaps, it is, therefore, that the plaintiff claimed full ownership in the suit property by adverse possession.
Then on the advent of Tamil Nadu Estates Act 30 of 1963, the title acquired by Bogyamdar came to vest in Government (See The Idol of Sri
Ranganathaswami Devasthanam, Srirangam by its Executive Officer v. Mavadian and others 1981-1-M.L.J. 43 : 96 L.W. 528. The Division
Bench has, in Sri Ranganathaswami Devasthanam case 1981-1-M.L.J. 43 : 96 L.W. 528, ruled that all the rights including that of adverse
possession will vest with the Government under S. 3 of the Act, and the legislative intention not to recognise for the purpose of the Act any claim to
ryotwari patta on the basis merely of adverse possession. It would at once follow that the plaintiff has no title to the suit properly.
The document to be received as additional piece of evidence is the death extract of Suppakkal. As it is a Government record, and as the date of
which is relevant the application is ordered. The said document is marked as Ex. A47. In the result, the second appeal fails and is dismissed, but
with no order as to costs.