Madras High Court
Sri Arulmighu Subramaniaswamy vs K.Subramanian on 29 April, 2015
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 29.04.2015 Coram: THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI S.A.No.2137 of 2001 Sri Arulmighu Subramaniaswamy Thirukoil rep. by its Executive Officer, Pollachi. .. Appellant vs. 1.K.Subramanian 2.D.Amuthavalli 3.Palanichamy 4.P.Thangam 5.Somaskandan 6.Sumathi 7.A.Venkatasubramaniam 8.P.Illango(deceased) 9.The Secretary, Pollachi Town Co-op. Building Society, Pollachi. 10.Jayalakshmi 11.Venkatasubramanian 12.Thilagavathi 13.E.Sumathi 14.E.Narendran 15.E.Srudha 16.Nallammal (R13 to R16 are impleaded as the legal heirs of the deceased 8th respondent vide order of this court dated 6.11.2013 made in CMP.860 of 2013) .. Respondents Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 13.01.2000 made in A.S.No.153/1999 on the file of the Principal District Judge, Coimbatore confirming the judgment and decree dated 30.04.1990 made in O.S.No.187 of 1990 on the file of the Subordinate Judge, Udumalpet. For Appellant : Mr.T.R.Rajagopalan, SC for Mr.N.Anand Venkatesh For Respondents : Mr.V.Raghavachari for Mr.E.K.Kumaresan -R1 to R7 & R10 to R12 & R13 to R16 Mr.AR.L.Sundaresan, SC for Mr.P.Krishnan R9 R8-died JUDGMENT
The unsuccessful plaintiff/temple is the appellant herein. The present second appeal is filed against the concurrent judgment of the trial court as confirmed by the lower appellate court.
2.The suit in O.S.187/90 is filed by the plaintiff for declaring the plaintiff's title to the suit property and for recovery of vacant possession of the suit property. The plaint proceeds as if the suit property belongs to the temple by way of devadayam Inam vide TD no.111 and the grant was confirmed till the temple was maintained from and out of the income from the same and the property was registered in Inam Fair Register as belonging to the temple and the same had been maintained so, by the predecessor and thereafter by the first defendant who was the hereditary trustee of the plaintiff temple and the income of the property had been treated as temple property and utilised for the maintenance of the temple and the first defendant has been in possession and enjoyment of the same in her capacity as hereditary trustee of the same, on behalf of the temple and after coming into force of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act (hereinafter shortly referred to as Act), steps were taken to obtain ryotwari patta in respect of the suit property belonging of the temple and the ryotwari patta was duly issued to the temple by the Settlement Tahsildar and patta issued by the Settlement Tahsildar was set aside by the Minor Inam Tribunal, Coimbatore in CMA.334/69 wherein, the first defendant claimed independent right over the suit property and on the failure of the temple to produce relevant documents, before the appellate authority, the order of the settlement Tahsildar was set aside and ryotwari patta was issued in the name of the first defendant and thereafter no step was taken to file further appeal against the order of the settlement Tahsildar. While so, the first defendant was removed from the hereditary trusteeship by the HR&CE Department and the same was challenged by a suit, which is now culminated and pending as appeal before the Supreme Court. In the mean while, an Executive officer was appointed as in-charge of the temple, who preferred an appeal with inordinate delay before the High Court, Chennai against the order made in CMA.334/69 and the High Court refused to condone the delay and dismissed the appeal on the ground of delay. Thereafter, the first defendant had been continuing in possession and enjoyment of the property belonging to the temple and by utilising the income from the same for his personal use without any right to do so and also sold a portion of the same to the defendants 2 to 10 during 1990 which compelled the plaintiff to come forward with the suit for the relief stated supra.
3.During the pendency of the suit, the purchasers of a portion of the suit property and on death of the first defendant, her legal heirs were brought on record as the defendants 2 to 10 and 11 to 13 respectively. The first defendant in the written statement filed by her during her lifetime, seriously resisted the claim of the temple. The first defendant opposed the relief by challenging the maintainability of the suit on the ground of limitation and by applying the principle of resjudicata and by claiming prescriptive title by adverse possession. The suit relief was also opposed by the defendants 2,4,6,7,9 10, and 11 to 13 on the same grounds as raised by the deceased first defendant.
4.The contesting parties, in support of their respective contentions during trial, examined the Executive officer, HR&CE Department, Coimbatore as PW1 and no witness is examined on the side of the defendants. The parties produced Exs.A1 to A25 and Exs.B1 to B18 documents on both sides. The trial court on the basis of the available evidence, arrived at a conclusion that though the grant was made in favour of the temple in 1862 vide Ex.A2 and though the property was treated as temple property, Exs.A3 to A7 auditor's reports for the temple do not establish the exclusive title of the temple in respect of the suit property. It is also found Ex.B16 patta issued in 1805 in favour of poojari kuppaiyan for the suit property and Ex.B17 Jarimania patta issued in the name of the same person and Ex.B1 order made in CMA.334/69 by the Inam Tribunal thereby granting ryotwari patta in favour of the first defendant, Exs.A3 and A4 patta issued by the special Tahsildar, Ex.B7 Extract of permanent register for inam for the faslis 1620 and fasli for 1342 and other documents produced on the side of the defendants, would prove that the patta was issued to individual Kuppaiyan Poosari, who was the predecessor-in-title of the defendant as early as 1805 by the then District Collector, as such, the plaintiff cannot be held to be the owner on the strength of A2 patta issued in the year 1962 and the property granted as 'Maniyam' to Kuppaiyan Poosari was later on partitioned between Kuppaiyan Poosari and others and the same has been since the date of patta, in possession and enjoyment of predecessor in title and thereafter in the hands of the first defendant and thereafter with her legal heirs and the subsequent purchasers from her and there was no evidence to show that the same was treated as temple property and the income from the same was never utilised for the temple purpose and it is the first defendant and her legal heirs who were entitled to kudivaram right. The trial court has also held that the suit having not been filed for declaration within 3 years from the date of order passed by the Inam Tribunal in 1972, and from the date of issuance of ryotwari patta in favour of the first defendant during 1978 is barred by limitation. The trial court also arrived at the conclusion that the first defendant having claimed title in her favour in respect of the suit property as early as in 1972 and having obtained ryowari patta in 1973, the first defendant by her open, continuous, uninterrupted and adverse possession from 1973 to the knowledge of the temple, acquired prescriptive title in respect of the suit property and the claim of the plaintiff/temple if any is already lost. The trial court also found that the issue relating to right of the parties for obtaining patta having been ultimately decided by Minor Inam Tribunal, the same cannot be permitted to be re-agitated by way of civil suit and the civil suit is barred by resjudicata. The trial court on the basis of such findings, held the temple to be dis-entitled to get the suit relief and dismissed the suit. Aggrieved against the same, the plaintiff preferred AS.153/1999. The lower appellate court agreed with the findings of the trial court, with regard to non-maintainability of the suit on the ground of limitation and upheld the claim of the first defendant for independent title over the suit property on the basis of Exs.B1, B4, B7 and B16 to B18 documents and her claim for prescriptive title by adverse possession and accordingly dismissed the appeal filed by the plaintiff temple. Hence, this second appeal by the plaintiff before this court.
5.Originally the second appeal was by judgment dated 21.12.2001 dismissed by this court on the ground that both the courts below have considered the claim of the parties on appreciation of evidence both oral as well as documentary, pertaining to the title of the property and ultimately found that the appellant temple failed to establish their title to the suit property. The correctness of the same was challenged by way of civil appeal before the Apex Court, which set aside the judgment and decree of this court and remanded the appeal for fresh disposal strictly in accordance with law and gave liberty to the parties to raise all factual and legal issues which are permissible in law.
6.After the remand, this court by order dated 4.11.2013 framed 9 substantial questions of law for determination of this second appeal and the same were by order dated 20.2.2004 re-framed, which read as follows:
"(i)Whether the Ryotwari patta granted under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act 1963 in favour of the first respondent will act as bar by virtue of Section 46 of the Act in maintaining a civil suit for declaration of title and possession by the appellant temple?
(ii)whether the suit filed by the appellant temple for declaration and possession can be dismissed on the ground of limitation when the application of the provisions of the Limitation Act is barred insofar as the religious institutions are concerned, in view of Section 109 of the Tamil nadu Hindu Religious and Charitable Endowments Act 1959?
(iii)whether the defendant is entitled to raise a plea of res-judicata without pleading in this second appeal?
(iv)whether the entries in the Inam Register is presumed to be made only after due enquiry?
7.During the pendency of this second appeal, both the appellant/plaintiff and the contesting defendants have come forward with CMP.Nos.854 and 874 of 2013 and 353 of 2014 for receiving the petition mentioned additional documents on their respective sides and this court by order dated 04.02.2105, on consent of the parties, allowed CMPs and received the additional documents as Exs.A26 to A40 on the plaintiff's side and Exs.B19 to B24 on the defendants' side.
8.Heard the rival submissions made on both sides and perused the records.
9.As already stated, the plaintiff temple claimed the suit relief for declaration and recovery of possession of the suit property on the strength of devadayam inam granted in favour of the temple by Zamindar of Ramnad vide T.D.No.111. The facts that the predecessor-in-title of the first defendant and the first defendant were the service holders-cum-hereditary trustees of the plaintiff temple and had been managing the affairs of the temple and had been in possession and enjoyment of the property belonging to the temple and the property granted by way of Inam and also the suit property, are not denied. While the plaintiff claims that the suit property belongs to the temple by way of Devadayam Inam granted by Zamindar of Ramnad vide T.D No.111 and as evident from Ex.A2 Inam fair register extract, Exs.A3 to A7 auditor's reports and Ex.A24 order of the Settlement Tahsildar in SR.No.410 and 462/1968 made under the Minor Inams (Abolition and Conversion into Ryotwari) Act 30/1963, the deceased first defendant denied the plaintiff's title and set up title in favour of her predecessors and thereafter in her favour by virtue of Ex.B1 order made in CMA.334/69 by the Inam Tribunal, Coimbatore for issuance of ryotwari patta in favour of the first defendant, Ex.B3 patta issued by the Special Tahsildar, Exs.B7 and B8 Inam register extracts, Ex.B11 lease deed Ex.B16 order of the Collector of Chennai to issue jarimania patta to her predecessors, Ex.17 jarimania patta and Ex.B18 patta for the fasli 1348.
10.Both the courts below have rejected the plaintiff's claim for title solely based on Ex.A2 Inam fair register extract, in the absence of any other records relating to grant by Zamindar, such as, inam title deed. The courts below placed more reliance on Exs.B16 and B17 Jarimania Pattayam and Jarimania patta issued in 1805 by then District collector, Madras in the name of Kuppaiyan, Poosari of Subramaniaswamy Temple, in respect of certain lands in Sangampalayam, forming part of which is the suit property and Ex.B3 dated 18.10.1973 ryotwari patta issued in name of the first defendant Subbulakshmiammal and Ex.B7 register 'B' permanent Inam register, and Ex.B18 patta issued in the name of the first defendant Subbulakshmiammal for the fasli 1348 corresponding to 1938. Both the courts below have, after due appreciation of oral and documentary evidence adduced in the suit, rendered the following findings: (i)the suit property was granted in favour of the predecessors of the first defendant above 100 years back by way of Jarimania pattayam and even much before the grant, the predecessors of the first defendant had been in enjoyment of Kudivaram right and after the grant in favour of the predecessors, they had been in enjoyment of both melvaram and kudivaram and the name of one Nagappa Gurukkal who was the successor of the original grantee and the predecessor of the first defendant was mentioned as grantee in register B permanent inam register for the faslies 1326 and 1343 and the first defendant and his predecessors had been in possession and enjoyment of the property only in their own capacity and the predecessors and thereafter the first defendant had been in management of the temple as Dharmakartha and Managing Trustee and they had been paying the tax and had leased out the property to third parties and had been enjoying Iruvaram right vested on the predecessors in recognition of their possession and enjoyment of the property for more than four decades. (ii)The Settlement Officer, who is the competent authority, set aside the ryotwari patta issued in the name of the temple under section 8(2)(ii) of Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act and issued ryotwari patta in the name of the first defendant under the Act and the same became final and binding on the temple as well as on the first defendant and was conclusive under section 46 of the Act. (iii)as the ryotwari patta was issued in the name of the first defendant as early as in 1973 and as further appeal preferred by the temple before the Special Appellate Tribunal, questioning the correctness of the order was dismissed and the possession and enjoyment of the suit property by the first defendant became adverse to the temple from that time, she started claiming independent title during 1973 and any suit filed for declaring the title to the temple ought to have been filed within 3 years and the suit filed after more than the statutory period i.e., in 1990 was barred by limitation.
11.The findings so rendered by the courts below based on oral and documentary evidence adduced therein are challenged in this second appeal on the following grounds:(i)as Ex.A2 Inam fair Register is a great act of state and its preparation and contents are the subject of much consideration under elaborately detailed reports and minutes and the entries contained therein are entitled to great weight and consideration in construing the nature and extent of the grant and has great evidenciary value. (ii)the possession and enjoyment of the property by the predecessors and thereafter by the first defendant was only on behalf of the temple as hereditary trustee-cum-poosari and not on their own manner, as admitted by them in some of the records; (iii)the relevant provision of law applicable to the maintainability of the suit under the Limitation Act is section 10 and not Articles 59 and 65 of the Limitation Act. Further, by virtue of section 109 of HR&CE Act, the provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act 30/1963 are not applicable to the suit for immovable property belonging to religious institution and the suit is hence not barred by limitation; (iv)the finding rendered by the Settlement Officer for issuing ryotwari patta in favour of the first defendant on the aspect of nature or character of the land will have to be regarded as incidental to and merely for the purpose of passing the order to grant the patta and for no other purpose and the purpose of enquiry by him under the Act is only for revenue purposes i.e., to effect settlement, to assess the land and to ensure payment of such assessment to the State, as such, it is within the jurisdiction of the civil court to decide whether the title deed is inam, notwithstanding the finding of the Settlement Officer has accorded its finality and the doctrine of res judicata is not applicable to the reliefs sought for in the civil suit.
12.Based on the contentions raised above, the substantial questions of law are framed by this Court relating to the evidentiary value of Inam fair register, final and binding nature of ryotwari patta issued, the issue of limitation and applicability of doctrine of res judicata. As far as the entry made in Ex.A2 Inam Fair Register is concerned, it is well settled law that the entries contained in Inam Fair Register are great acts of the State made after elaborate enquiry and have great weight and consideration in construing the nature and extent of the grant. However, it is equally well settled law that Inam Fair Register is not conclusive with regard to title, when there is other evidence bearing on the question.
13.As far as the issuance of ryotwari patta granted under section 8(2)(ii) of the Minor Inams Act 30/1963 is concerned, it is well settled in catena of decisions that the same will not oust the jurisdiction of the civil court for deciding the question of title. The Division Bench of our High Court in the judgment reported in 1988-2- LW.513 (T.K.Ramanujam Kavirayar and others v. Sri La-Sri Sivaprakasa Pandara Sannadhi Avargal, Hereditary Trustee of Vilapoojai Kattalai attached to Sri Courtalanathaswami Temple) by following the ratio of the earlier Division Bench decision reported in 1982 TLNJ 490 (Udiappan and another v. Karuppan and another) held that the finality conferred by section 46 of the Minor Inams Act on the orders passed by the authorities constituted under the Act will not oust the jurisdiction of the civil court to decide the question of title. It is further held therein that the decision by the authorities under the Act is only 'for the purpose of the Act', because the machinery is provided under the Act to decide certain matters and it does not mean that the jurisdiction of the civil court to decide the question of title to the land is excluded. The Hon'ble Supreme Court in the decision reported in (1985) 4 SCC 10 (State of Tamil Nadu v. Ramalinga Samigal Madam) observed that any decision impliedly rendered on the aspect of nature or character of the land on that occasion will have to be regarded as incidental to and merely for the purpose of passing the order of granting or refusing to grant the patta and for no other purpose. It is further observed therein that the Settlement Officer has no power to do what civil court would normally do in a suit and it is therefore difficult to imply ouster of civil court's jurisdiction simply because finality has been accorded to the Settlement Officer's order. The Division Bench of our High court in the same judgment, by applying the observation of the Hon'ble Supreme court (cited supra), is of the view that in the absence of any provision, for deciding any dispute between two rival claimants who claim to be the inamdars or two rival claimants who claim to be lawfully entitled to kudivaram on the date of the notification, any decision of such authorities cannot conclude the matter and exclude the jurisdiction of the civil court. That being the legal position, the issuance of ryotwari patta in favour of the deceased first defendant though reached its finality, will not affect the maintainability of the suit for declaring the title of the temple in respect of the suit property and principle of res judicata is not applicable to the facts of the present case.
14.Further, the defendants having failed to raise such plea in terms of the observation of the Full Bench of our High Court in the judgment reported in 1998 (II) MLJ 314 (Srinivasan and 6 others v. Sri Madhyarjuneswaraswami, Pattavaithalai, Tiruchirapalli District by its Executive Officer at Pettavaithalai Devasthanam and 5 others), cannot be permitted to raise the plea of res judicata, herein. It is clearly held therein that before a plea of res judicata can be given effect to, it must be sufficiently pleaded and established that the litigating parties are the same, that the subject matter of the suit and the other proceedings also are identical, that the questions arising in the suit and other proceedings were directly and substantially in issue and the same was finally decided and that too by an authority or court of competent jurisdiction.
15.In view of the well settled legal position that Ex.A1 Inam Fair Register, the contents of which were made after elaborate enquiry, is not conclusive proof and the order issuing ryotwari patta in favour of the first defendant though attained finality, will not oust the jurisdiction of the civil court; and the decision of the Settlement Officer to grant patta on the aspect of nature or character of the land will have to be regarded as incidental to and merely for the purpose of the Act; and the same cannot attract the principle of res judicata to the issue of title involved in the suit and the plea of res judicata has to be raised only in the manner as laid down by the Full Bench of our High court in the decision cited supra, the substantial questions of law 1, 3 and 4 are accordingly answered.
16.Regarding the limitation issue raised herein by the defendants, the same is sought to be answered by the appellant/plaintiff, by invoking the provisions of law under section 109 of the Hindu Religious and Charitable Endowments Act, which was introduced by the Tamil Nadu Act 28 of 2003. As the present suit was filed in 1990, the provisions of law introduced in 2003 cannot be retrospectively applied to the suit reliefs. Other ground raised herein is that Articles 59 and 65 of the Limitation Act, providing 3 years and 12 years period for filing the suit for cancelling or setting aside the instrument and for filing the suit for possession of immovable property or any interest thereon based on title, are not applicable to the present suit and the relevant section applicable to the present case is section 10.
17.As far as the applicability of Section 10 of the Limitation Act is concerned, the same is applicable to such cases, wherein the suit is filed against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. As far as the present case is concerned, it is nobody's case that the suit property vested on the predecessors of the first defendant and thereafter on the first defendant for any specific purpose. In the absence of such plea that the interest of the suit property vests either on the predecessors of the first defendant or on the first defendant, Section 10 of the Limitation Act cannot be invoked in the present case.
18.Excluding the applicability of section 109 of HR&CE Act and Article 59 and Section 10 of the Limitation Act, the period of limitation applicable to the present suit filed for declaration and recovery of possession is 12 years as per Article 65. Both the courts below have rightly held that as on the date of issuance of grant of ryotwari patta in favour of the deceased first defendant in 1973, her possession of the suit property became adverse to the right claimed by the temple, the first defendant on the strength of her open, continuous and uninterrupted possession adverse to the knowledge of all including the temple, acquired prescriptive title and the right, title or interest of the temple if any is lost and the suit claiming title if any, ought to have been filed within 12 years from 1973, as such, the suit filed in 1990 is beyond the statutory period and the same is rightly held as barred by limitation and this court finds no reason to interfere with such finding rendered by the courts below and the second substantial question of law is accordingly decided against the appellant/plaintiff.
19.On facts, the material documents relied on the side of the plaintiff temple are Ex.A2 Inam fair register and Exs.A3 to A7 auditors' reports. As far as Ex.A2 is concerned, the same contains the name of Subramaniaswamy as the name of the original grantee and the name of Archagar Ayyasami aged 40 years in Column 15 relating to name entered into the survey or in any subsequent accounts and relationship to predecessors. Col.22 refers to TD.No.111 which was issued in the name of the predecessors of the first defendant in the capacity as Manager of the temple. Exs.A3 to A7 auditors' reports are of no much help to the appellant temple as they do not specifically refer to the suit property in Sangampalayam as inam land mentioned in the auditors' reports.
20.The appellant/plaintiff and contesting respondents have also in support of their respective claims for title, adduced additional documentary evidence i.e., Exs.A26 to A40 and Exs.B19 to B24 and the same are as follows:
On the side of the appellant/plaintiff :
Ex.A26 -Fasli 1271 (1862) Copy of Inam Statement given by Archakar Ayyasami to Subramania Swami Temple submitted before the Inam Dariafat Mr.Taylor Ex.A27 -22.11.1918 Copy of sale deed executed by Nagappa Gurukkal in favour of Nanjappa Pillai vide Doc.No.3877 of 1918 Ex.A28 -22.11.1918 Copy of sale deed executed by Nanjappa Pillai in favour of Nagappa Gurukkal vide Doc.No.3878 of 1918 Ex.A29 -05.08.1939 Communication issued to the Secretary, HR&CE, Madras from the Coimbatore District temple Committee in ROC No.211/1939 Ex.A30 -08.08.1939 Statement given on behalf of Mrs.Subbulakshmi ammal in O.A. No.151 of 1939 before HR&CE, Madras Ex.A31 -17.07.1939 Statement of Errappa Gounder before HR&CE, Madras in OA.No.151 of 1939 Ex.A32 -16.08.1939 Order passed by the HR&CE Board in Board Order 4481 of 1939 in OA No.151 of 1939 Ex.A33 - Genealogy Tree submitted before HR&CE, Madras in OA.No.151 of 1939 Ex.A34 -16.08.1939 Annexure HR&CE Board Order No.4451 in OA No.151 of 1939 Ex.A35 -16.08.1939 Annexure HR&CE Board Order No.4481 in OA No.151 of 1939 Ex.A36 -08.09.1939 Plaint in O.S.No.12/1939 on the file of the District Court, Coimbatore. Ex.A37 -31.10.1939 Written Statement of D1 in OS No.12 of 1939 Ex.A38 -13.11.1939 Written Statement of D2 in & 05.08.1942 OS No.12 of 1939 and additional written statement Ex.A39 -17.08.1943 Judgment in OS No.12 of 1939 on the file of the District Court, Coimbatore Ex.A40 -05.11.1945 Judgment in AS No.89/1944 on the file of the High Court, Madras On the side of the respondents/defendants Ex.B19 -15.09.1947 Register maintained by the Inspector of Hindu Religious Endowment Ex.B20 -15.05.1948 N.Subbulakshmiammal's Power Agent sent the notice to Assistant Commissioner, Coimbatore, Devasthanam Board. Ex.B21 -25.08.1964 Judgment passed in Appeal No.197/1961 Ex.B22 -16.08.1971 Copy of Judgment made in LPA.No.40/1965 Ex.B23 -16.08.1971 Copy of decree made in LPA.No.40/1965 Ex.B24 -27.02.1976 Order passed by the Deputy Commissioner for HR&CE, Coimbatore in MP.14/1970.
21.All the additional documents produced on the plaintiff side, except Exs.A26 and A27, also do not advance the claim of the plaintiff. Ex.A26 is inam statement given by the Archagar Ayyasami for the fasli 1271 (1862). The suit property is in the above two documents Ex.A26 and Ex.A27 referred to by the predecessors of the first defendant as the land belonging to the temple. However, in view of the documents produced during trial on the side of the first defendant (i.e,) jarimania patta issued in favour of the first defendant, no serious reliance can be placed on Exs.A26 and A27 additional documents. The other documents above referred to are relating to OA.151/1939, OS.12/1939 and AS.89/1944 against OS.12/1939. The suit OS.12/1939 is filed by Subbalakshmi ammal against (i)Zamindar of Ramapatnam and (ii)Madras Hindu Religious Endowment Board in respect of the temple in dispute in OA.No.151 of 1939 i.e., Sri Subramaniaswami temple and not in respect of the land in question.
22.The document produced as Ex.A39 is the judgment made in OS.No.12 of 1939 on the file of District Court, Coimbatore. The list of exhibits produced in OS.No.12 of 1939 is appended at inner page 13 of Ex.A39 judgment. The perusal of the list of documents reveal that the document produced as Ex.P4(a) is the title deed No.111 which is admittedly the title deed referred to in the present suit in Ex.A2 Inam Fair Register. When present suit Ex.A2 Inam Fair Register refers to the same as the document under which the suit lands are granted to the suit temple under Devadayam inam, the said document is in the list of Exhibits in Ex.A39 judgment described as title deed No.111 granted to the Manager for the time being of Subrahmanyaswami temple. The Manager of the temple mentioned in para 28(3) of the same Ex.39 judgment in OS.No.12 of 1939 is one Nagappa Gurukkal who was the predecessor in title of the first defendant herein. The trial court in para 13 at inner page 5 of its judgment in OS.No.12 of 1939 discussed about Ex.P4 and P4(a) documents and referred to Ex.P4 as the title deed in English issued regarding the land of Unjavelampatti relating to the temple in favour of the Manager for the time being of Subramanyaswami Pagoda and that the inam was confirmed in favour of the Manager and his successors tax free. It is further referred to Ex.P4(a) as a similar title deed relating to the lands of Sangampalam with a similar entry in Tamil. The present suit Ex.B16 Jarimaniya Pattayam dated 1803 issued by the Collector of Coimbatore in favour of one Kuppayyar, ancestor of Nagappa Kurukkal who was noted as poojari, was also produced as Ex.P1 in the same suit and the present suit Ex.A2 Inam Fair Register was also produced therein as Ex.P3(a). The finding rendered in para 14 of the judgment in OS.No.12 of 1939 is that the title deeds for all the lands were in respect of Nagappa Gurukkal's ancestor and the plaintiff Subbulakshmiammal was in possession of Sangampalayam lands. The suit was decreed in favour of the plaintiff Subbulakshmiammal, holding that Subbulakshmiammal and her ancestors have owned title deeds for the inam lands and have been in possession of a major portion of them and have been enjoying the same unchallenged by the first defendant therein and his ancestors and Nagappa Gurukkal actually asserted his right before the HRE Temple Committee of Coimbatore and forced it in 1929 to recognise his name to sole management of the temple. Accordingly, the decree was issued in favour of the plaintiff Subbulakshmi in OS.No.12 of 1939 and against the first defendant.
23.Ex.A40 is the judgment made in AS.No.89/1944 by the High Court, Madras and the appeal is filed against the judgment and decree made in O.S.No.12/1939 by the first defendant. In Ex.A40/title deed was again referred to at inner page 9 as inam title deed granted to the Manager for the time being of Subrahmaniaswami Pagoda. Both the courts below have negatived the theory put forth that Nagappa Gurukkal and his ancestors have been in possession and enjoyment of the temple lands on the understanding as remuneration for their services. In inner page 31 of the same judgment it is also found that the temple and its properties have been in charge of Nagappa's family continuously for four generations from before 1803 and no body outside the family was shown to have exercised any acts of control or management in respect of them and accordingly, the judgment and decree of the trial court in OS.No.12 of 1993 was confirmed in AS.No.89 of 1944 by the Division Bench of this Court. While doing so, the Division Bench negatived the suggestion to issue a direction to HR&CE Board for framing a Scheme. It is observed therein that no act of misfeasance and malfeasance on the part of Nagappa or his ancestors has been brought to light or even suggested before the Division Bench. The appeal was dismissed by judgment dated 5.11.1945 by observing that it is open to the worshipers in the temple, including the first defendant therein whose family has been taking a special interest in the temple and a prominent part in the conduct of its festivals, to move the Board for framing a suitable scheme if so advised. However, till date, no Scheme suit is filed either by HR&CE Department or any worshipers interested in the temple.
24.The contesting defendants have also produced Exs.B19 to B24 additional documents, relating to Appeal No.197/1961, LPA.No.40/1965 and the order passed by the Deputy Commissioner of HR&CE, Coimbatore dated 27.02.1976 made in MP.14/1970, relating to the disciplinary proceedings initiated against the deceased first defendant/Subbulakshmi ammal for acting adverse to the interest of the temple in claiming ryotwari patta based on her title for the land in question. In the course of discussion in the same, Ex.B16 Jarimania patta of the year 1805 is also referred to. It is further referred to therein that the genuineness of the same is not disputed by anyone. It is relevant to point out at this juncture that the additional documentary evidence adduced on the side of the plaintiff would disclose that T.D.No.111 referred to Ex.A2 Inam Fair Register extract, which is according to the plaintiff, title deed relating to the property in question, was issued only in the name of the predecessors of the first defendant and not in the name of the temple.
25.Further it is sought to be argued on the side of the appellant that no greater reliance can be placed on Ex.B16 jarimania pattayam and other documents standing in the name of the predecessors of the first defendant and thereafter the first defendant and the entries found in Ex.A2 Inam fair register are made after deliberate enquiry and deserve due weightage and importance. It is argued that in that event, section 44 of the Minor Inams Act has to be invoked, as per which, inam granted for the benefit of religious institution or granted to the individual for rendering service to the religious institution, has to be presumed as iruvaram grant, consisting of both melvaram and kudivaram and the issuance of ryotwari patta is governed under section 8(2)(ii) of the Act, as such, transfer of the same in favour of the predecessors-in-title and issuance of ryotwari patta in the name of the predecessors of the first defendant under Section 8(2)(1) of the Act cannot be held valid. In my considered view, such argument advanced on the side of the plaintiff deserves no merit and acceptance, in view of Ex.B16 and others documents produced on the side of the contesting defendants.
26.Ex.B16 Jarimaniyam patta granted in favour of Kuppaiyan was earlier in point of time and the manner of his enjoyment in the property in question as absolute owner thereof is evident from Ex.B6 partition deed and B7 inam register extract and Ex.B8 and Ex.18 inam register extract for the faslies 1343 and 1348, Ex.B9 kist receipt, Ex.B10 order passed by the Income Tax Officer, Coimbatore and Exs.B11 to B14 lease deeds etc. The sole witness examined on the side of the plaintiff temple is the Executive officer, HR&CE department, who would also in the course of his evidence, admit the genuineness of Jarimania pattayam and patta issued in the name of the predecessors of the first defendant and thereafter in the name of the first defendant. The oral evidence adduced on the side of the plaintiff would only support the findings of the courts below regarding the title of the predecessors of the first defendant and thereafter by the first defendant and the validity of ryotwari patta issued in favour of the first defendant.
27.The factual findings rendered by the courts below in respect of grant in favour of the predecessors of the first defendant during 1805 and the grant in the name of the manager of the temple vide TD.No.111 and the possession and enjoyment of the right of melvaram and kudivaram by the predecessors of the first defendant and thereafter by the first defendant and their exercise of ownership by obtaining patta, by paying tax, by leasing out and by selling it to third parties and by enjoying the income derived from the property etc. much before 1805 are based on due appreciation of oral and documentary evidence adduced on both sides. Thus, the overall appreciation of the entire oral and documentary evidence would only support the findings rendered by the courts below regarding the title of the predecessors of the first defendant and thereafter the first defendant in respect of the property in question.
28.Hence, for the discussions held above, this court is of the view that the plaintiff is not able to make out any valid ground to interfere with the well considered judgment and decree of the courts below and the appellant/plaintiff is hence dis-entitled to get any relief in this second appeal.
29.In the result, the second appeal is dismissed. No costs.
29.04.2015 rk Index:Yes/No Internet : Yes/No To
1.The Principal District Judge, Coimbatore.
2.The Subordinate Judge, Udumalpet.
Additional Documents received at the second appeal stage are :
On the side of the appellant/plaintiff :
Ex.A26 -Fasli 1271 (1862) Copy of Inam Statement given by Archakar Ayyasami to Subramania Swami Temple submitted before the Inam Dariafat Mr.Taylor Ex.A27 -22.11.1918 Copy of sale deed executed by Nagappa Gurukkal in favour of Nanjappa Pillai vide Doc.No.3877 of 1918 Ex.A28 -22.11.1918 Copy of sale deed executed by Nanjappa Pillai in favour of Nagappa Gurukkal vide Doc.No.3878 of 1918 Ex.A29 -05.08.1939 Communication issued to the Secretary, HR&CE, Madras from the Coimbatore District temple Committee in ROC No.211/1939 Ex.A30 -08.08.1939 Statement given on behalf of Mrs.Subbulakshmi ammal in O.A. No.151 of 1939 before HR&CE, Madras Ex.A31 -17.07.1939 Statement of Errappa Gounder before HR&CE, Madras in OA.No.151 of 1939 Ex.A32 -16.08.1939 Order passed by the HR&CE Board in Board Order 4481 of 1939 in OA No.151 of 1939 Ex.A33 - Genealogy Tree submitted before HR&CE, Madras in OA.No.151 of 1939 Ex.A34 -16.08.1939 Annexure HR&CE Board Order No.4451 in OA No.151 of 1939 Ex.A35 -16.08.1939 Annexure HR&CE Board Order No.4481 in OA No.151 of 1939 Ex.A36 -08.09.1939 Plaint in O.S.No.12/1939 on the file of the District Court, Coimbatore. Ex.A37 -31.10.1939 Written Statement of D1 in OS No.12 of 1939 Ex.A38 -13.11.1939 Written Statement of D2 in & 05.08.1942 OS No.12 of 1939 and additional written statement Ex.A39 -17.08.1943 Judgment in OS No.12 of 1939 on the file of the District Court, Coimbatore Ex.A40 -05.11.1945 Judgment in AS No.89/1944 on the file of the High Court, Madras On the side of the respondents/defendants :
Ex.B19 -15.09.1947 Register maintained by the Inspector of Hindu Religious Endowment Ex.B20 -15.05.1948 N.Subbulakshmiammal's Power Agent sent the notice to Assistant Commissioner, Coimbatore, Devasthanam Board. Ex.B21 -25.08.1964 Judgment passed in Appeal No.197/1961 Ex.B22 -16.08.1971 Copy of Judgment made in LPA.No.40/1965 Ex.B23 -16.08.1971 Copy of decree made in LPA.No.40/1965 Ex.B24 -27.02.1976 Order passed by the Deputy Commissioner for HR&CE, Coimbatore in MP.14/1970. 29.04.2015 K.B.K.VASUKI, J. rk SA.No.2137 of 2001 29.04.2015.