Madras High Court
Arulmighu Chokkanathasamy vs Chokkalingapuram Devangar on 15 February, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 15/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1002 of 2000 Arulmighu Chokkanathasamy Thirukoil, the Presiding Deity Chokkanathasamy Chokkalingapuram, Aruppukottai through its Executive Officer, Aruppukottai. ... Appellant/Appellant /Plaintiff Vs 1.Chokkalingapuram Devangar Varthaga Sangam, through its President. 2.The State of Tamil Nadu represented by its District Collector, Kamarajar District, Virudhunagar. ... Respondents/Respondents/ Defendants Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree of the learned Subordinate Judge, Virudhunagar, dated 31.03.1999 in A.S.No.154 of 1996 in confirming the judgment and decree of the learned District Munsif, Aruppukkottai, dated 24.11.1995 in O.S.No.128 of 1986. !For Appellants ... Mr.T.Srinivasa Raghavan for Mr.S.Parthasarathy ^For Respondent ... Mr.T.Selvan for M/s.Srinath Sridevan for R.1 Mr.So.Paramasivam, Govt. Advocate for R.2 :JUDGMENT
This second appeal is focussed as against the judgment and decree of the learned Subordinate Judge, Virudhunagar, dated 31.03.1999 in A.S.No.154 of 1996 in confirming the judgment and decree of the learned District Munsif, Aruppukkottai, dated 24.11.1995 in O.S.No.128 of 1986.
2. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
3. Broadly but briefly, narratively but precisely, the case of the plaintiff, Arulmighu Chokkanathasamy Thirukoil, as stood exposited from the records could be portrayed thus:
The plaintiff is owning the temple by name Arulmighu Chokkanathasamy Thirukoil and also the nearby tank also which is called as 'Theppam'. The appurtenant area around the 'Theppam' is also owned by the plaintiff. The authorities under the Tamil Nadu Hindu Religious and Charitable Endowment Act is having the control over that temple. While so, the first defendant namely the Chokkalingapuram Devangar Varthaga Sangam trespassed into a portion of the area adjacent to the tank and made certain constructions. Being aggrieved by it, the suit was filed for removal of such encroachment; for mandatory injunction, for recovery of possession and for other reliefs.
4. Denying and refuting, challenging and impugning the allegations/averments in the plaint, the first defendant filed the refutatory written statement; the gist and kernel of it would run thus:
The plaintiff is having no right over the suit property and accordingly, the first defendant prayed for the dismissal of the suit.
5. The second respondent filed the written statement to the effect that the said tank does not belong to the temple and the adjacent area also does not belong to the temple as per Town Survey records. Accordingly, he prayed for the dismissal of the suit.
6. The trial Court framed the relevant issues.
7. During trial, P.W.1 and P.W.2 were examined and Exs.A.1 to A.24 were marked on the side of the plaintiff. D.W.1 and D.W.2 were examined and Exs.B.1 to B.9 were marked on the side of the defendants. Exs.C.1 to C.4 were also marked as the Court documents.
8. Ultimately, the trial Court dismissed the suit with the finding that the first defendant is a trespasser in the suit property, but the Government alone has got the right to evict the first defendant, namely, the trespasser.
9. Challenging the judgment and decree of the trial Court, the plaintiff filed the appeal in A.S.No.154 of 1996 before the Sub Court, Virudhunagar, which Court also confirmed the judgment and decree of the trial Court and it has also clearly and categorically held that only the second defendant has the dominant right to evict the first defendant, the trespasser.
10. Being aggrieved by and dissatisfied with, the judgments and decrees of both the Courts below, this second appeal has been filed by the plaintiff on the grounds inter alia thus:
Both the Courts below fell into error in wrongly applying the principles of law and in understanding Section 14(A) of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, which has been brought into statute book by virtue of Tamil Nadu Amendment Act 49 of 1974. Ex.A.2, the patta was not properly appreciated by the Courts below, however, the fact remains that Ex.A.2 binds both the Government as well as the Municipality. As a sequel to finding that the first defendant is the trespasser, the Courts below should have ordered for removal of the encroachment, but they failed to do so. The civil Court has got the right to adjudicate independently the title of the plaintiff over the suit property, de hors the patta or revenue proceedings. Accordingly, the plaintiff prayed for setting aside the judgments and decrees of both the Courts below and for decreeing the original suit.
11. At the time of admitting the second appeal, my learned Predecessor framed the following substantial questions of law:
"Whether Ex.A.2 Patta is a conclusive document which confers title to the plaintiff as against the rights claimed by the first defendant?"
12. However, during arguments, it transpired that one more substantial question of law could be framed and accordingly, I framed the following substantial question of law thus:
"Whether the Courts below fell into error in not appreciating the evidence relating to the pre-existing right of the plaintiff over the suit property which is being protected by virtue of (i) G.O.Ms.No.1300 Revenue Department, dated 30.04.1971, (ii) G.O.Ms.No.1108 Commercial Taxes and Religious Endowments Department dated 27.10.1980 and (iii) the full Bench decision of this Court in Srinivasan and 6 others v. Sri Madhyarjuneswaraswami, Pattavaithalai, Thiruchirappalli District by its Executive Officer at Pattavaithalai Devasthanam and 5 others reported in 1998 (II) M.L.J Page 722?
13. Both the points are taken together for discussion as they are interlinked and interwoven with each other.
14. Heard both sides.
The Points:
15. The learned Counsel for the plaintiff drawing the attention of this Court to various provisions of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 and the relevant G.Os, cited supra and also the full Bench decision of this Court in Srinivasan and 6 others v. Sri Madhyarjuneswaraswami, Pattavaithalai, Thiruchirappalli District by its Executive Officer at Pattavaithalai Devasthanam and 5 others reported in 1998 (II) M.L.J Page 722, would develop his arguments to the effect that none of the Tamil Nadu Estates Abolition Enactments Acts do contemplate that the pre- existing right of a legal person would get obliterated by virtue of the provisions of those special enactments.
16. I could see considerable force in the submission made by the learned Counsel for the plaintiff in view of the full Bench decision of this Court cited supra. An excerpt from it, would run thus:
"15. Further, the mere fact that the orders passed or decisions rendered under these Acts were given finality for the purposes of those Acts or that the issues, which they are obliged or required to be decided, when so decided are ordained to bind the parties to the proceedings or their privies and successors- in-interest applying the principles of res judicata does not have the effect of outing the jurisdiction of the Civil Court once and for all. It is by now well settled that even in cases where finality is accorded to any decision or order, there are certain well settled exceptions and proved the existence of such exceptional factors, the Civil Court is entitled to nullify any or all such decisions. Similarly, even in cases where the principles of res judicata are rendered applicable, the jurisdiction of the competent Civil Court to go into the question and find out whether the necessary ingredients to apply the principles of res judicata exist in a given case or not cannot be denied to the Civil Court and from the mere fact of according finality to the orders or decisions rendered under the Act or the application of the principles of res judicata a total or complete bar or ouster of the jurisdiction of the Civil Courts for all and any purpose cannot be automatically inferred or implied. Before a plea of res judicata can be given effect to, it must be sufficiently pleaded and established that the litigating parties must be the same, that the subject matter of the suit and the other proceedings also are identical, that the questions arising in the suit and the 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.
16. On coming to know of the existence of an unreported decision of the Apex Court rendered by a Bench consisting of three of their Lordships, efforts were made to secure the same when the judgments in this case was under preparation and it was ascertained that in Civil Appeal No.5141 of 1993 Sri-La-Sri Sivapradkasa Pandara Sannadme Avargal v. Smt.T.Parvathi Ammal and others, (1998)2 L.W. 188, their Lordships of the Apex Court by a judgment dated 20.2.1996, not only approved the earlier decision of the Apex Court reported in R.Manicka Naicker v. Elumalai Naicker, (1995) 4 S.C.C. 156 and set their seal of approval to the principles laid down therein, but had categorically held in unmistakable terms that the decision in (Vatticharularu Village Panchayat v.
Nori Venkatarama Deekchithulu, 1991 (2) S.C.C (Supp.) 228) has no application to the provisions or in respect of claims arising under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. Their Lordships of the Apex Court in coming to such a conclusion, held as follows:
"The only question for decision relates to the jurisdiction of the Civil Court to entertain the suit which was filed by the respondent. The trial Court decreed the suit. The First appellate Court set aside the decree taking the view that the civil Court's jurisdiction was barred. In the second appeal filed by the present respondents, the High Court has restored the judgment and decree of the trial Court taking the view that the civil Court's jurisdiction was not barred.
The plea of exclusion of the Civil Court's jurisdiction to adjudicate the title of the parties in the present case is based on the provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. This Court in a recent decision in R.Manicka Naicker v. Elumalai Naicker, (1995) 4 S.C.C. 156:(1995) 1 L.W 731, has clearly held that the Civil Court's jurisdiction to adjudicate title of the parties, is not barred by virtue of the provisions of the said Act. This is a direct decision of this Court on the provisions of the Act with which we are concerned in the present case. Learned Counsel for the appellant placed reliance on the decision in Vatticharularu Village Panchayat v. Nori Venkatarama Deekchithulu, 1991 (2) S.C.C (Supp.) 228. It is sufficient to observe that this decision relates to the provisions under a different Act of Andhra Pradesh. Moreover, in R.Manicka Naicker, this decision relating to the provisions in the Andhra Pradesh Act was considered and distinguished. In view of the direct decision of this Court in R.Manicka Naicker, there is no merit in this appeal. The appeal and the Contempt Petition are dismissed."
17. In view of the above unreported decision of the Supreme Court, the decision in S.Vanathan Muthuraja v. Ramalingam, (1997) 6 S.C.C. 143 : (1997) 3 L.W. 231 rendered without even referring to the earlier reported decision of the very same Court in R.Manicka Naicker v. Elumalai Naicker, (1995) 4 S.C.C. 156:(1995) 1 L.W 731 and the unreported decision of even a larger Bench directly arising under the Tamil Nadu Act 30 of 1963, cannot be said to lay down or declare the correct position of law or constitute a binding precedent.
18. For all the reasons stated above, we answer the question referred to the Full Bench in the negative by holding that the jurisdiction of the civil Court to entertain a suit for declaration of title and injunction is not barred by reason of the grant of patta under the provisions of Tamil Nadu Act 30 of 1963.
19. We direct the respective appeals to be posted before the learned single Judge concerned for the disposal of the appeals on merits in the light of the answer given on the reference made to the Full Bench. The cost in the appeals shall abide by the result of the appeals on merits."
17. The perusal of the aforesaid decision would leave no doubt in the mind of the Court, that de hors the provisions of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, and the patta issued thereunder, a legal person is having the right to establish its pre-existing right over the suit property before the civil Court. It also contemplates that even prescriptive title could be established. In this connection, G.O.Ms.No.1300 Revenue Department dated 30.04.1971, could also be cited, which would clearly enure to the benefit of an individual, if at all he is having continuous possession of land over the statutory period irrespective of the embargoes contemplated in the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 and Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1963 and other allied Acts.
18. Put simply, if the plaintiff could establish that it had pre-existing right over the suit property, then certainly its title to it could be upheld, irrespective of the provisions in those Special enactments as well as the subsequent pattas issued thereunder.
19. In this connection, the decision of this Court in Govt. of Tamil Nadu and others v. Peria Pallivasal, Abiramam and another reported in 2000-1-L.W.154 has been cited by the learned counsel for the plaintiff. A deep scrutiny of the aforesaid decision would enlighten the legal position that regarding the right of the religious institutions over Oorani, tank, theppam, Section 14-A of the Act which has been brought into the Statute book by virtue of the Tamil Nadu Act 49 of 1974, would have no effect, in view of G.O.Ms.No.1300 Revenue Department, dated 30.04.1971, G.O.Ms.No.1108 Commercial Taxes and Religious Endowments Department dated 27.10.1980. The Government in its wisdom thought that Oorani and tank etc, by whatever name it is called, is kept by the religious institutions for the welfare of the pilgrims and the public and consequently, those water bodies and the areas appurtenant thereto are kept out of the purview of Section 14-A of the said Act.
20. Accordingly, the Government felt that Section 14-A of the said Act, shall not be blindly applied to such tanks and that such religious institutions should not be deprived of their right over such tanks. It is therefore clear that the Government itself in its wisdom thought fit to take such a decision and it is not open for the District Collector to file such a written statement quite antithetical to what the Government had decided already over that issue.
21. In my considered opinion, the written statement filed by the Collector is untenable as overlooking those Government decisions and the Government stand, it was filed.
22. The learned Counsel for the plaintiff placing reliance on Ex.A.2, proceedings of the Settlement Officer dated 11.06.1968, would put forth his arguments to the effect that the authority concerned after applying its mind over the factual position conferred patta in favour of the plaintiff and subsequently, it was not at all cancelled.
23. However, the non-obstante or Henry the VIII clause as found embodied in Section 14-A of the Act would apply irrespective of any patta issued, for which the learned Counsel for the plaintiff would try to expound that Section 14-A of the Act is applicable only to the pattas issued relating to the lands other than Natham lands; so far as the suit property is concerned, it forms part of Natham land as per the aforesaid provision of the Act, Natham land did not get vested with the Government and that in such a case, the question of Section 14-A of the Act being applied, does not arise.
24. Be that as it may, I am of the considered opinion that in view of the full Bench decision of this Court cited supra and the subsequent G.Os passed by the Government, straight away it could be held that once the plaintiff is found to have been in possession as owner and also exercising the right of ownership over the suit property continuously ever since before and after the commencement of those special enactments, the question of that property getting vested with the Government does not arise at all.
25. Following the full Bench decision of this Court, there is one another decision emerged in M.E.A.Mohamed Ali and others v. The District Revenue Officerr, Ramnad Collectorate, Ramanathapuram and others reported in 2005 (4) CTC 9.
26. Absolutely, there is no iota or shred of evidence to prove that at any point of time, the Government exercised ownership or had possession over that land, including the tank. The perusal of Ex.A.2 would clearly demonstrate that in that tank, there is one Sithi Vinayagar temple attached to the plaintiff's temple at the north-eastern Padithurai; to the north of the temple, there is Kalyanamandapam of the Devasthanam; there is an inscription as "Sivankoil Theppam' in the rough stone below the 'Sithi Vinayagar temple; the Devasthanam has conducted Theppa Urchavam in the teppakulam as it is borne out by the expenditure items recorded in the Devasthanam account book, Ex.P.2 and by the vouchers Ex.P.3 series, marked before the Settlement Officer concerned.
27. As such, the Settlement Officer conducted elaborate enquiry and gave a categorical finding based on evidence that the said Theppam was actually under the ownership and control of the plaintiff and regularly Theppa Urchavam was conducted which was also borne by evidence. In such a case, it is clear that even before the promulgation of the relevant facts stated above, the plaintiff was owning the tank as well as the area adjoining the same. It is clear that the plaintiff acquired title over it, from time immemorial by its open and uninterrupted possession, control and enjoyment.
28. To the risk of repetition, without being tautologous, I would point out that such ownership right of the plaintiff was not divested by virtue of any subsequent enactments and in fact, subsequent G.O referred to supra, are protecting such rights. In the wake of the findings and the evidence set out in Ex.A.2, both the Courts below could have very well arrived at the conclusion that de hors the patta issued, the evidence available on the plaintiff's side was pointing towards the pre-existing ownership and the possessory right of the plaintiff over the tank and the land adjoining to it. As such, the failure to consider the same by both the Courts below is perverse which requires interference in this second appeal.
29. Both the Courts below held correctly that the first defendant happened to be the trespasser and has no right over the land concerned, nonetheless they simply held that only the Government has got the right to remove the encroachment. In view of the reasons set out supra, they misdirected themselves. In fact, admittedly and indisputably, the plaintiff Devasthanam is under the control of the authorities of the Tamil Nadu Hindu Religious and Charitable Endowments Act, who are in one sense part of the Government also. They have not chosen to issue any fiat or mandate against the plaintiff. As has been already highlighted supra, the written statement filed on behalf of the second defendant, due to misconception of law does not merit consideration.
30. The approach of the Courts below is mainly based on recognising the plea of 'jus tertii' so to say, setting up title in a third party other than the plaintiff. It has been repeatedly held that the plea of 'jus tertii' pleaded by a trespasser deserves rejection only. In the G.O.Ms.No.1108 Commercial Taxes and Religious Endowments Department dated 27.10.1980, the conditions are contemplated as under:
"a) The oorani is thrown open to the public without let or hindrance.
b) The Government shall have the revisionary right to the land and the oorani.
c) The oorani is to be maintained in good condition."
The religious institution could retain their right over such water bodies subject to the aforesaid conditions.
31. The learned Counsel for the plaintiff would convincingly argue that those conditions are being followed, because the plaintiff's temple is under the control of the authorities of the Tamil Nadu Hindu Religious and Charitable Endowment Act. The matter would be slightly different if the temple happened to be a private temple or a denomination temple. But, here the temple is a public temple under the control of the Tamil Nadu Hindu Religious and Charitable Endowments Act.
32. From any angle if the matter is viewed, it is crystal clear that both the Courts below are not correct and the plaintiff has got right over the suit property.
33. Accordingly, the substantial question of law No.(i) is decided to the effect that Ex.A.2 patta even though cannot be treated as a document of title, it has got evidentiary value and that in view of the discussion supra, the plaintiff had the pre-existing right of ownership and possession over the tank and in such a case, both the Courts below fell into error in adjudicating the lis. The additional substantial question of law No.(ii) is decided to the effect that both the Courts below without considering the pre-existing right of ownership and possession of the plaintiff, simply dismissed the suit with the finding that only the second defendant has got the right to evict the trespasser. Both the judgments and decrees of Courts below are liable to be set aside and accordingly, set aside.
34. In the result, the second appeal is allowed, setting aside the judgments and decrees of both the Courts below and consequently the original suit in O.S.No.128 of 1986, on the file of the District Munsif, Aruppukkottai, is decreed as prayed for. However, in the facts and circumstances of the case, there shall be no order as to costs.
rsb To
1.The Subordinate Judge, Virudhunagar.
2.The District Munsif, Aruppukkottai.