M. Natesan and Others vs Thiruvanaikoil Arulmighu Sri Jambukeswarar Temple and Akilandeswari Temple and Others

The defendants, who lost in both the courts below, have preferred these second appeals.

The case in brief is as follows:- The plaintiff temple represented by the Executive Officer filed the suits against the respective defendants for

delivery of possession of the suit properties and for past and future mesne profits till date of delivery. The suit properties belong to the plaintiff

temple absolutely and they were also granted patta under Act 30 of 1963. The defendants or their predecessors were also parties in the enquiry.

The plaintiff succeeded only in S.T.Appeal No.209 of 1974, whereby the orders passed by the Settlement Authorities as well as the Tribunal were

set aside and the temple was granted ryotwari patta. The defendants are estopped and barred by the principles of resjudicata from claiming any

right to the suit lands and also from denying plaintiffs title. Even after the verdict of this Court, the defendants in the respective suits have neither

surrendered possession nor measured any paddy. They are in unauthorised possession of the properties and, as such, bound to pay mesne profits

past and future in accordance with law.

The defendants in the respective suits filed separate written statement and denied the title of the plaintiff temple. The proceedings under Act 30

of 1963 are all restricted to the grant of ryotwari patta under the Act and have no relevance to the title to the lands concerned. As such, the

reliance placed by the plaintiff on the patta granted under the Act is misconceived. The defendants in the respective suits are the owners of the

lands, having acquired Kudivaram interest in the property, reclaimed the same and made improvements. They were in possession even prior to

1900 in pursuance of the sale in their favour from the lawful owners of the properties. The kudivaram interest of their predecessors-in-interest was

also duly recognised by the plaintiff temple in the compromise decree in O.S.No. 644 of 1910 on the file of District Munsif Court, Kulithalai.

Hence, the plaintiff is estopped from denying the kudivaram interest of the defendants. The plaintiff had no subsisting title in the suit property as the

institution had never exercised such a right. As per the compromise decree, the institution was given only right to claim Melvaram dues. The plaintiff

is not entitled to get possession of the properties. Moreover, the defendants have acquired title by adverse possession. Even assuming that the

plaintiff is the owner of the lands, the defendants are entitled to claim benefit under Act 25 of 1955 as cultivating tenants. There is no proper notice

to quit and the suits are liable to be dismissed. The plaintiff is not entitled to mesne profits also.

The trial court framed 14 issues and on behalf of the plaintiff, P.W.I was examined and Exs.A-1 to A-11 were marked and on the side of the

defendants, D.W.I was examined and Exs.B-1 to B-20 were marked. The trial court decreed the suits for delivery of possession and mesne

profits was left open to separate proceedings under Order 20, Rule 12 of Civil Procedure Code. Aggrieved against this, the defendants in O.S.

Nos.1198, 505, 508, 504, 502, 509 and 506 of 1982 preferred A.S.No.155, 157, 158 of 1985 and 163 to 165 of 1988 respectively on the file

of Sub Court, Trichirappalli and after hearing the parties, the learned Judge dismissed all the appeals and aggrieved against this, the defendants in

O.S.Nos.506, 505, 508, 509, 1198 and 502 of 1982 respectively have come forward with the present second appeals.

At the time of admission of these second appeals, this Court framed the following substantial questions of law for consideration-.

(1) Whether the settlement patta granted to the plaintiff under Tamil Nadu Act 30 of 1963 would affect the right, litle and interest of the defendants

in the suit land and enable the plaintiff to recover possession de hors the right of the defendants ?

(2) Whether in view of the compromise decree in the 1910 suits, the plaintiff could recover possession of the suit land from the defendants ?

(3) Whether the suits for eviction are maintainable and the civil court has jurisdiction to entertain the suits in view of the specific provisions of

Section 47A of Tamil Nadu Act 30 of 1963?

The temple represented by the Executive Officer is the plaintiff in all the suits. Although the defendants are different in the suits, since common

question of law is involved, a common judgment is pronounced in all the second appeals.

Heard the learned counsel of both sides.

Anilmighu Thiruvanaikoil Temple represented by the Executive Officer filed these suits for delivery of possession from the respective defendants

in the suits and also claimed past and future mesne profits. It is admitted that inam title deed was granted to the plaintiff under No.104 and 923.

There were proceedings under Act 30 of 1963 before the authorities concerned and the matter was taken upto this Court in S.T.A.No.208 and

209 of 1974, whereby the orders passed by the Settlement officer as well as the Inam Abolition Tribunal were set aside and Ex.A-4 is the copy of

the order. It is made clear under Ex.A-4 that patta was granted to the temple in question u/s 8(2)(ii) of Act 30 of 1963. This order has become

final and binding upon the parties.

Learned counsel for the appellants / defendants mainly contended that the courts below erred in resting their judgment in S.T.A.208 and 209 of

1974 which is not conclusive in the present proceedings wherein the question of title prescribed arise for decision before the Civil Court, The Civil

Court has got jurisdiction to adjudicate on title including the plea of adverse possession and prescription. The Courts below have not properly

appreciated the scope and effect of the proceedings in O.S.Nos. 644 and 645 of 1910 and the compromise decree is binding on the parties. By

virtue of the compromise decree, permanent occupancy right was created in favour of the defendants and they cannot be evicted from the land in

question. The lower appellate court has also not properly appreciated the nature, scope and purpose of Section 47-A of Act 30 of 1963.

Learned counsel for the appellants/defendants contended that even though there is an order passed by this Court granting ryotwari patta to the

temple in question under Act 30 of 1963, yet the Civil Court has got jurisdiction to go into the question of title as well as adverse possession.

Based upon the finding given by this Court under Ex.A-4, both the courts below came to the conclusion that the plaintiff temple has got title to the

property and ordered delivery of possession without going into the question whether the defendants are cultivating tenants in the properties or

whether they are liable to pay only melvaram to the plaintiff temple in question and whether the defendants have acquired kudivaram right in the

properties. All these things have not been gone into by the courts below and as such, the learned counsel for the appellants pleaded that the matter

can be remitted back to the trial court for fresh trial in accordance with law.

Learned counsel for the appellants also relied on the Full Bench decision of this Court in Srinivasan and six others Vs. Sri

Madhyarjuneswaraswami and five others, , wherein it was clearly stated that ""the civil court has got jurisdiction to entertain suits for declaration of

title and Injunction and such suit is not barred by reason of grant of patta under provisions of Tamil Nadu Act XXX of 1963 jurisdiction of civil

court is not totally and completely ousted or barred in respect of adjudication of claims of title, questions or issues which requires to be decided for

implementing ryotwari settlements in areas governed by legislation abolishing minor inams"". There is no dispute about this principle but the

applicability depends upon the facts and circumstances in each case.

Perusal of the judgment of the trial court clearly indicates that as many as 14 issues have been framed. The question of title, kudivaram right,

res judicata and the benefit under the cultivating tenants were also considered. The parties were also given liberty to adduce evidence oral and

documentary. On the side of the appellants, number of sale deeds have been filed, but no one connected to these documents was examined and

under the circumstance, it will not establish that the defendants have purchased the properties from the lawful owners. There is also nothing to

indicate that they are in possession and enjoyment of these properties in their own right. The defendants have gone to the extent of denying the title

of the plaintiff temple in question and this being so, it is not known how they are claiming benefit under the Cultivating Tenants'' Protection Act,

namely Act 25 of 1955.

Learned counsel for the appellants also placed much reliance upon the compromise decree under Ex.B-1 in O.S.No.644 and 645 of 1910 on

the file of District Munsif Court, Kulithalai. Obviously these suits were filed by the temple in question for enhancement of melvaram. This does not

mean that the defendants in question have got kudivaram right and accordingly presume that the plaintiff temple has got only melvaram right in the

property and not entitled to get recovery of possession. The lower appellate court clearly and categorically stated that the word ""Kudivaram"" does

not find a place anywhere under Exs.B-1 and B-2. When the earlier proceedings and the ultimate compromise between the parties relate to the

enhancement of melvaram only, much weight cannot be attached to the same and come to the conclusion that the defendants in question are

entitled to kudivaram right and the plaintiff temple has got only melvaram right. Further more, Ex.A-4, the decision in S.T.A.No. 203 and 209 of

1974 was given on 3.3.1976 long after the compromise decree under Ex.B-1. There is a clear finding that the temple in question is entitled to get

ryotwari patta. Immediately thereafter, the defendants in question have not chosen to approach the civil court to establish their title to the

properties; but on the other hand, the plaintiff temple in question alone has approached the Court as early as 1982 for delivery of possession. It is

patently clear that the defendants were given opportunity to let in evidence to establish their title or plea of adverse possession; but they have failed

to avail the same. When once the defendants took a stand that they are liable to-be pay melvaram to the plaintiff temple in question, they cannot

turn round and take a plea as if they have prescribed title to the property in question. Both the courts below based upon the evidence oral and

documentary came to the conclusion that the plaintiff temple has got ryotwari patta and the same has not been either cancelled or modified by any

authority competent under law and the defendants having failed to establish that they have got any tenancy right in the properties, have rightly

ordered delivery of possession to the temple in question. However, the mesne profits past and future has been left open to separate proceedings.

The next contention raised by the appellants is that there is no valid notice to quit. As adverted to, the defendants took a plea that they have

prescribed the title to the property by adverse possession and this being the state of affairs, it is not necessary that the temple in question has to

send a legal notice calling upon the defendants to deliver possession. A reading of Section 47-A of Act 30 of 1963 would also establish that it has

no application to the case on hand. The lower appellate court had extracted Section 47-A, 2(5), and 2(6) and met the contentions of the

appellants and ultimately came to the conclusion that they are not entitled to claim benefit under any of these provisions. Even assuming that the civil

court has got jurisdiction to go into the question or title and adverse possession, the appellants have failed to adduce satisfactory evidence, which

resulted in granting a decree in favour of the plaintiff temple. In fact, the learned counsel for the appellants pointed out the admission of P.W.I in the

course of evidence as if they have demanded melvaram from, the defendants, but it was not paid. The period when it was asked has not been

explained but however; after Ex. A4, much weight cannot be attached in respect of the plea kudivaram or melvaram raised by the appellants. I am

of the view that the lower appellate court has correctly considered the contentions raised by the appellants and there is no erroneous appreciation

either in law or on facts and hence, no interference is called for.

For the reasons stated above, all the second appeal fails and accordingly dismissed. No costs. Time for delivery 3 months. Consequently,

CMPs.No. 10628 to 10633 of 1989 are also dismissed.