Rangaswami Chetty and Others vs P. N. Perumal and Another

Somasundaram, J.—There are three temples by names (i) Selleeswaraswami (ii) Ponnathi Naryanaperumal and (iii) Mariyammam in Alikuli,

a village in Gobi taluk, in Coimbatore Dt. These temples own some lands and they are in the possession of the Petitioners in these two revisions.

Perumal, the first Respondent herein, as trustee of these temples, obtained a certificate from the Deputy Commissioner of Endowments to the

effect that these properties belong to the temples. Later, he filed an application before the Sub-Divisional Magistrate, Erode, u/s 101 of the Hindu

Religious and Charitable Endowment Act, 1959, for possession of the properties. The Petitioner resisted his claim treating the lands in question are

Inam lands, that they are in lawful possession of the lands for the past over 60 years having purchased them from the lawful owners, that they are

neither trustees nor ex-trustees within the ambit of S. 101 and that as such, they could not be evicted in the summary manner. Not accepting their

contentions, the learned Sub-Divisional Magistrate has directed them to deliver possession of the properties to the appointed trustee Perumal. The

correctness of this order is now canvassed in these revisions.

S. 101 of the Madras Hindu Religious and Charitable Endowments Act, 1959, which corresponds to S. 87(2) of the earlier Act, provides for a

summary procedure whereby a person appointed as trustee, can summarily obtain possession of the properties of religious institution from an

obstructor, on the certificate issued by the Commissioner. The Commissioner or Deputy Commissioner who issues a certificate under the Section

should not only find that the property in question belongs to the religious endowment concerned but should also find that the person from whom

delivery is sought comes within the terms of the section. As pointed out in Ponnuswamy Padayachi and Others Vs. Nallamuthu Padayachi and

Others, , if there is no such finding the order is null and void and is not capable of implementation by a Magistrate. Under S. 101 of the Act, where

an appointed trustee is resisted in, or prevented from, obtaining possession of the religious institution or of the records, accounts and properties

thereof, by a trustee, office-holder or servant of the religious institution who has been dismissed or suspended from his office or is otherwise not

entitled to be in possession or by any person claiming or deriving title from such trustee, office holder or servant, not being a person claiming in

good faith to be in possession on his own account or on account of some person not being such trustee, office holder or servant, any Magistrate

shall on application by such trustee, and on the production of the order of appointment or the certificate, as the case may be, direct delivery to the

person appointed, the possession of the institution, or the records, accounts and properties thereof. Proceedings u/s 101 cannot be taken against

every person who may be in possession of the properties of a religious institution. The provision is explicitly restricted to a person in possession as

a trustee, office holder or servant of the religious institution or one who has been dismissed or suspended from such office or any person claiming

or deriving title from such trustee, office holder or servant. This is a positive limitation. There is also a negative limitation, in that a person who could

claim in good faith to be in possession of his own account or on account of some person not being such trustee, office holder or servant is definitely

excluded. The Petitioners in both these revisions do not come, within the purview of S 101 of the Act. The first Respondent, in the application filed

by him before the Deputy Commissioner, for the certificate has averred that these Petitioners got into possession of the lands as tenants under a

former trustee. Contrary to these allegations, he, in the application filed by him u/s 201 before the Divisional Magistrate has averred that the

Petitioners are in wrongful possession of the properties. There is no whisper that they are in possession as tenants of any previous trustee. The

Deputy Commissioner has issued a certificate only to the effect that the properties belonged to the temples. It is not enough if he gives a finding that

the property belongs to the religious endowment in question. He must also find that the person from whom delivery is sought comes within the

terms of S. 101. There is no such finding in this case. Therefore, the certificate is null and void, in the sense, that it lacks one essential decision or

finding that makes it capable of implementation before a Magistrate.

The Petitioners, in their counter, contend that they are in possession of the lands in their own right for the past over 65 years by purchase from

previous owners. They further contend that under the recent Inam legislation, they are entitled to get pattas for these lands. They also contend that

they do not come within the purview of S. 101 of the Act. They have produced registration copies of some sale deeds for substantiating their

claims. Previously, this Perumal and some others had attempted to evict these persons u/s 87 of the Act, on the strength of a certificate issued by

the Deputy Commissioner. These certificates were challenged in this Court in W. P. 1134 and 1135 of 1956. Observing that the Deputy

Commissioner in issuing the certificates failed to consider that these persons were in bona fide possession of the property for over 80 years and

stating that the trustee had failed to substantiate his case of permissive possession as lessees from one previous trustee, the orders passed by the

Deputy Commissioner and the certificate issued by him were set aside by this Court in the above proceedings.

Thus, the Petitioners claim to be in possession of the lands in their own right. They are not ex-trustees or office-holders or servants of these

temples; nor are they persons dismissed or suspended from such office or are persons who claim or derive title from such trustees, office holder or

servant. On the other hand, they are persons who claim in good faith to be in possession on their own account. They do not come within the

purview of S. 101 of the Act. The Deputy Commissioner has also not given a finding to that effect in his proceedings. The certificate issued by him

lacks this important finding and as such, it is void. On the face of it, it is essentially defective. The first Respondent admits in his petition that these

Petitioners are in wrongful possession of the properties. It is indisputable that an order u/s 101 cannot be made against a trespasser who claims to

have perfected title to the property otherwise or by adverse possession.

The orders passed by the Sub Divisional Magistrate are set aside and these revisions are allowed.