Sree Bhagavathi Amman Temple and others vs Krishna Goundar and Others

Raghava Rao, J.—The appellants here-Sri Bhagavathi Amman Temple represented by three of its pujari trustees-sued in the Court of the

Subordinate Judge of Coimbatore for recovery of the lands described in plaint A schedule and for profits in respect thereof. The three trustees

representing the temple alleged that defendants 1 to 11 were tenants at will liable to be evicted and that defendants 13 to 15 were their co-trustees

who not having joined them in suing were impleaded as pro forma defendants. The 12th defendant was the Madras Hindu Religious Endowments

Board who like defendants 13 to 15 supported the case of the plaintiffs-trustees that the suit lands which had been originally granted by a Mysore

King and were later confirmed by the East India Company and later still by the British Indian Government at the time of the Inam Settlement

belonged to the deity in both the warams. It was also part of the plaint case that the decree of the District Munsif''s Court of Dharapuram in O.S.

No. 225 of 1939 on its file dated 27th September, 1940, was null and void, in so far as it wrongly held, in confirmation of the appellate order of

the District Collector in certain proceedings for resumption of the suit lands u/s 44-B of the Madras Hindu Religious Endowments Act, that the

grant was only of the melwaram. The contesting defendants maintained inter alia that the grant was only of the melwaram as, accord ing to them,

rightly held by the learned District Munsif of Dharapuram in the former suit, that the former decision operated as resjudicata in the way of the

present action, and that they and their ancestors had been in possession of the suit land from time immemorial and in any event acquired a right to

the kudiwaram by prescription. The learned Subordinate Judge in the Court below found against the plea of res judiata but otherwise upheld the

defence and dismissed the suit. The plaintiffs have accordingly appealed.

Mr. B.V. Viswanatha Ayyar, the learned advocate for the appellants, has argued before us that the grant ought to have been, on the material

available, chiefly furnished by Exhibits P-1, P-2, extracts of the inam statement and the Inam Fair Register relating to the suit inam, held to cover

both the warams and that the finding of the learned Subordinate Judge that the defendants are entitled to the kudiwaram by adverse possession is

erroneous in law as well as on the facts. On the other hand, Mr. Ramanatha Ayyar, the learned advocate for the respondents, has not only

maintained that the conclusions of the learned Subordinate Judge on these two points are correct but also urged that the learned Subordinate Judge

ought to have accepted the plea of res judicata.

With the first contention of the appellants'' learned advocate we agree. What is disclosed by the inam documents is that the grant was to the

temple of a Sarvadumbala inam of lands specifically described by boundaries, in respect of which the assessment payable to Government but for

the rent-free character of the grant would have been Rs. 31 -8-2 and which at the time were under letting by the pujari in charge to the cultivators

on a kandayam basis and were fetching produce which the pujari utilised for naivedyam to the deity. The description of the income in Exhibit P-1

as Rs. 31-8-2 which is shown in Exhibit P-2 as in fact the assessment payable to the Government on the land but for the grant, does not, in our

opinion, warrant the inference that the grant was in the nature of a mere remittance to the inamdar, the temple, of the rent payable to the

Government by tenants already in occupation. There is no reference in either Exhibit P-1 or Exhibit P-2 to any such tenants. On the other hand, the

only reference to tenants, which is to be found only in Exhibit P-1 is to tenants to whom the pujari himself leased out the lands on a kandayam basis

and from whom he was in perception of profits which were however used "" for distribution to the deity "". For the appellants it is further pointed out

that there were permanent leases, Exhibits P-4, P-5 and P-6 of 6th May, 1890, each in respect of one-third share of the suit lands granted by the

pujaris in their respective shares on the footing that the original grant was of the land covering both the warams and that under Exhibit P-3

Guruvayee, the widow of Vaduharandi, one of the members of the pujari family executed a deed of relinquishment in favour of the lessors under

Exhibits P-4 to P-6, her pangalis, abiding by the leases granted by them. The evidence furnished by the inam papers being unequivocal in its nature,

we are, even quite apart from Exhibits P-3 to P-6, clearly of opinion that the original grant was of the land itself. The conduct evidence furnished

by the actings of the contesting defendants and their predecessors which begins only in 1899 is even less pertinent than Exhibits P-3 to P-6 to the

determination of the question of the nature and scope of the original grant. We accordingly reject the conclusion of the learned Subordinate Judge

based upon such conduct evidence that the grant originally made was of the melwaram only.

The second contention of Mr. Viswanatha Ayyar has not, after all the careful consideration that we have bestowed on it, commended itself to

our acceptance. There is indubitable testimony furnished by the documents on record of enjoyment of the suit lands by the defendants and their

predecessors in their own right beginning certainly as early as 1899. Exhibit D-3 of the 23rd of May of that year evidences a partition amongst

members of the family of defendants 1 to 11 of S. No. 119, the suit property, amongst others. There is a subsequent division on 1st November,

1909, between the 9th defendant, minor reperesented by his mother and guardian, Govindammal, and his paternal uncle one Muthuswami

Goundan, which is evidenced by Exhibit D-4. There have been dealings with the suit property by way of sales effected by members of the family of

the defendants under Exhibits D-5 to D-8 ranging from 1918 to 1926. From 1932 to 1938 it is shown by Exhibit D-11 series that the defendants

have been paying the kist on the suit land. Exhibit D-12 is the patta issued to the defendants for fasli 1349, and Exhibit D-12(a) is an encumbrance

certificate filed by the defendants for showing the dealings with the suit property by themselves and their predecessors-in-title from the year 1865

to 1900.

On these facts it seems to us obvious that the defendants have established their title by prescription to the kudiwaram interest in the land. But

says Mr. Viswanatha Ayyar, they have been all through asserting an animus pertinent to their absolute ownership of the land and not the animus

relevant to or requisite for the acquisition of a kudiwaram interest only in the land in question. The distinction is, in our opinion, even if theoretically

real, much too thin to all practical interests and purposes to affect the proper inference to be drawn from the facts disclosed by the evidence. It is

common knowledge that in zamindari areas where in respect of ryoti land the tenant is only a kudiwaramdar, as well as in ryotwari areas where the

ryotwari pattadar is, alike in popular and legal parlance, the full owner, the ryots describe themselves as the owners of the land. That means nothing

more than that they have a right of permanent occupancy in the land which carries with it the liability to pay rent to the zamindar, even as the

ryotwari pattadar is under an obligation to pay the assessment to the Government. Likewise, where in respect of inam land persons in occupation

assert their right to the lands themselves in a course of dealings otherwise sufficient to fulfil the requirements of a prescriptive title there is nothing in

our opinion to prevent the Court from upholding such a title merely because they have described themselves in such course of dealings as the

owners of the property. Mr. Viswanatha Ayyar also urges in answer to this point of view of prescriptive title that the defendants could not, in view

of the Full Bench ruling of this Court reported in Katragadda Brahmayya, minor by mother and guardian Katragadda Jagadamba and Others Vs.

Katragadda Balatripura Sundaramma and Others, acquire any occupancy right by prescription. But, far from supporting any such contention, the

Full Bench ruling does assume the possibility of the acquisition of such a prescriptive right by persons in the position of tbe present defendants. In

the Full Bench case the facts as found were that the tenant did not establish the occupancy right set up by him, but still contended that the plaintiff

had to fail against him unless he proved that the tenancy between himself and the plaintiff was in the nature of a terminable tenancy which had been

validily terminated. All that the Full Bench case decided was that if such a defence of occupancy right set up by the defendant failed, the landholder

could very well succeed in an action for eviction without proving more and that it was no answer to the suit that there had been a mere non-

payment of rent for over the statutory period. Such nonpayment of rent, the learned Judges of the Full Bench held, does not by itself put an end to

the tenancy admittedly in existence between the parties or convert the possession of the tenant into adverse possession against the landlord. In the

present case the defendants are not proved by the plaintiffs to have been inducted into possession of the suit property at any time as their tenants.

It is no doubt the case of the plaintiffs that defendants 1 to 11 are the pangalis of the lessees let into possession under the three permanent leases of

the 6th of May, 1890 (Exhibits P-4 to P-6); but the defendants deny their relationship with the original lessees. It cannot on the evidence on record

be held that such relationship stands clearly established. There being therefore no evidence of any letting of the defendants or their predecessors-

in-title by the plaintiffs or their predecessors-in-title at any time, it seems to us that it is perfectly competent to the defendants to prove by necessary

evidence that they have acquired a right by prescripti n to the kudiwaram interest in the land. The onus probandi in regard to prescriptive title is, of

course, on the defendants, but they have in our opinion sufficiently sustained it. The learned Subordinate Judge has discussed the evidence in

regard to this matter in paragraphs 12 and 13 of his judgment and given reasons, with which we agree, in support of his conclusion in favour of the

defendants. The learned advocate for the appellants has in this connection, no doubt rightly, pressed on our attention '' the fact that there is no clear

or cogent proof of any payment of a uniform rate of rent by the defendants or their predecessors-in-title to the plaintiffs or their predecessors-in-

title. But DW. 1 in his evidence says that the defendants have been paying the Andis Rs. 31 per year, and there is no proof that there has been any

variation of that amount of rent at the instance of the temple. The learned Subordinate Judge accepted this evidence and we cannot say that he was

in error in so doing.

Such being the conclusion that we have reached in concurrence with the learned Subordinate Judge on this part of the case, it is unnecessary for

us to deal with the question of res judicata on which the appellants have a finding in their favour from the learned Subordinate Judge. We may

however observe that in view of the finding of the learned Subordinate Judge on issue No. 10 which stands unquestioned, the valuation of the suit

on the file of the Court of the District Munsif of Dharapuram, O.S. No. 225 of 1939, must be regarded as an under-valuation, and that the suit, if

properly valued, would have been beyond the jurisdiction of that Court. The present suit which has been correctly valued and brought in the Court

of the Subordinate Judge of Coimbatore cannot be regarded as a suit which could have been lawfully tried by the District Munsif''s Court of

Dharapuram. The plea of res judicata cannot therefore, in our opinion, avail the defendants. In this conclusion we are supported by the decision of

the Allahabad High Court reported in Hazari Singh Vs. Jhunna Singh and Others , to which our attention has been drawn by the learned advocate

for the appellants. The learned advocate for the appellants also tried, in order to get over the plea of res judicata, to show that the former litigation

was conducted by the pujaris, not exclusively as trustees in which capacity they have instituted the present suit but in their own personal capacity as

pujaris as well, which would be in conflict with their capacity as trustees. We wish to say nothing in regard to the merits of this contention as we are

inclined to hold against the plea of res judicata anyhow for the reason already given, and as in fact a finding on the question of res judicata is, as

already pointed out by us, not strictly necessary for the disposal of this appeal in view of our conclusion on the merits which goes against the

appellants with reference to the question of prescriptive title on the part of the defendants.

In the result the appeal fails and is dismissed with costs. The appellants will pay the Court-fee due on the appeal to the Government.