Madras High Court
Sri.Ahobila Mutt vs The State Of Tamil Nadu on 27 October, 2021
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 S.A.No.1564 OF 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.10.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.1564 of 2003 and
C.M.P.(MD)No.8866 of 2021
Sri.Ahobila Mutt, Kumbakonam,
By its 46th Jeer Srivan Sadagopa
Sri Ranganatha Yatheendra Mahadesikan,
Rep. By his General Power of Attorney,
S.Rajagopalan. ... Appellant / Respondent /
Plaintiff
Vs.
1. The State of Tamil Nadu,
Rep. By its District Collector,
Thanjavur.
2. The Forest Officer,
Forest Department,
Kumbakonam. ... Respondents / Appellants /
Defendants
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the Judgment and Decree of the learned I
Additional District Judge cum Chief Judicial Magistrate,
Thanjavur at Kumbakonam dated 21.02.2003 passed in
A.S.No.45 of 2002 reversing the well considered judgment of
the learned I Additional District Munsif, Kumbakonam, dated
30.06.2000 passed in O.S.No.176 of 1994.
https://www.mhc.tn.gov.in/judis
1/9
2 S.A.No.1564 OF 2003
For Appellant : Mr.T.V.Ramanujam,
Senior Counsel,
for Mr.M.Saravanan.
For Respondents : Mr.R.Ragavendran,
Government Advocate.
***
JUDGMENT
The plaintiff in O.S.No.176 of 1994 on the file of the I Additional District Munsif, Kumbakonam, is the appellant in this second appeal.
2. The suit was filed for directing the defendants to put the plaintiff in possession of the suit properties. The plaintiff also asked for half share of the trees raised by the defendants in the suit properties. The defendants filed written statement controverting the plaint averments. An Advocate Commissioner was appointed and he inspected the suit properties and also filed his report and plan. Based on the divergent pleadings, the trial Court framed the necessary issues. The mutt official was examined as P.W.1. Ex.A.1 to Ex.A.3 were marked. One Panneerselvam, Forest Department https://www.mhc.tn.gov.in/judis 2/9 3 S.A.No.1564 OF 2003 official was examined as D.W.1. No document was marked by the defendants. Court Exhibits 1 to 6 were marked. After a consideration of the evidence on record, the trial Court by judgment and decree dated 30.06.2000, decreed the suit as prayed for. Aggrieved by the same, the defendants filed A.S.No.45 of 2002 before the Additional District and Sessions Judge cum Chief Judicial Magistrate, Kumbakonam. By the impugned judgment and decree dated 21.02.2003, the first appellate Court reversed the decision of the trial Court and allowed the appeal and dismissed the suit. Challenging the same, this second appeal came to be filed.
3. This second appeal was admitted on the following substantial questions of law:-
“(i) Whether the lower appellate Court has properly appreciated and applied the law that what is admitted need not be proved when D.W.1 has admitted the title of the plaintiff?
(ii) Whether the lower appellate Court is right in law in giving a finding of permissive occupation which is not supported by any https://www.mhc.tn.gov.in/judis 3/9 4 S.A.No.1564 OF 2003 pleading or evidence but contrary to the admission of D.W.1?
(iii) Whether the lower appellate Court is right in law in giving a finding that the Teak wood trees have been planted in channel poramboke or channel bund which finding is based on no evidence and contrary to specific findings in the report of Advocate Commissioner which has been accepted by D.W.1? ”
4. Heard the learned Senior counsel appearing for the appellant and the learned Government Advocate appearing for the respondents.
5. The learned Senior counsel appearing for the appellant took me through the plaint averments. He pointed out that the plaintiff is a religious institution. The suit properties belonged to the plaintiff mutt. On the said suit properties without getting permission from the Madadhipathi, the Forest Department had planted trees. When the mutt became aware of the same, it instituted the said suit for https://www.mhc.tn.gov.in/judis 4/9 5 S.A.No.1564 OF 2003 directing the defendants to hand over vacant possession of the suit property. Since the trees were grown on the suit property belonging to the mutt, the plaintiff had also asked for half share in what was on their property. The learned Senior counsel also pointed out that before the first appellate Court, the defendants were permitted to mark additional evidence without following the procedure set out in Order 41 Rule 27 of C.P.C. The first appellate Court after referring to Section 2 of the Tamil Nadu Forest Act 1882, came to the conclusion that the river bunds also belong to the Government and that therefore, the plaintiff was not entitled to maintain the suit. He also submitted that the title of the plaintiff over the suit property was admitted by the defendants themselves. He pointed out that before the trial Court, no document was marked by the defendants. The Forest Department official who was examined as D.W.1 fairly and frankly admitted that the suit properties belonged only to the plaintiff mutt. Admission is a best form of proof. What was admitted need not be proved. The learned Senior counsel produced before this Court a copy of “ A ” Register. It can be seen therefrom that the entries in “ A ” Register tally with the Advocate Commissioner's report https://www.mhc.tn.gov.in/judis 5/9 6 S.A.No.1564 OF 2003 and plan. He also pointed out that the Advocate Commissioner had also filed Chitta along with the report. From a perusal of this document, one can very well come to the conclusion that the suit properties belonged to the plaintiff mutt. I am more than satisfied with the submission advanced by the learned Senior counsel. As rightly pointed out by the learned Senior counsel, what was admitted need not be proved. That the suit properties belong to the plaintiff mutt is too obvious. The Advocate Commissioner had enclosed Chitta along with his report. It can be seen therefrom that the suit survey numbers are found in the petition mentioned Chitta.
6. A mere perusal of “ A “ Register also shows that the suit lands stand in the name of Arulmighu Lakshmi Narasima Temple. It is true that Beeman Vaikkal is flowing in the vicinity. For instance, Survey No.16/1 is in the name of the plaintiff mutt. Beeman Vaikkal flows across Survey No.16/2 as well as Survey No.17. Likewise Survey No.18/4 is in the name of the plaintiff. Channel lays through Survey No.18/5. As rightly pointed out by the learned Senior counsel, Section 2 of Tamil Nadu Forest Act, 1882 defines that "river" includes streams, canals, backwaters, creeks, and other channels, https://www.mhc.tn.gov.in/judis 6/9 7 S.A.No.1564 OF 2003 natural or artificial. If the suit lands formed part of the river in the revenue records, they could not have been shown as patta lands. The Government cannot speak in different voices. If the Revenue Department acknowledges and accepts the title and ownership of the suit lands, the Forest department cannot argue contrarily. However, the plaintiff cannot claim any share on the trees planted by the Forest Department. It is well settled that the person who had planted the tree is entitled to cut and remove the same. The plaintiff could not ask for damages against the Department for having encroached on their property. The trial Court erred in granting half share to the plaintiff on the trees grown on the suit properties. Therefore, the first appellate Court is justified in interfering with that part of the decree. The decree granted by the trial Court for directing the defendants to hand over the vacant possession of the suit property ought to have been sustained. The substantial questions of law are answered in favour of the appellant. The judgment and decree of the Court below is interfered to the extent mentioned above. The decision of the trial Court in this regard is sustained and the defendants are granted four months time to cut and remove the trees. https://www.mhc.tn.gov.in/judis 7/9 8 S.A.No.1564 OF 2003
7. This second appeal is partly allowed. No costs. Consequently, connected miscellaneous petition is closed.
27.10.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: 1. In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
2. Issue Order copy on 24.01.2022.
To:
1. The I Additional District Judge cum Chief Judicial Magistrate, Thanjavur at Kumbakonam.
2. The I Additional District Munsif, Kumbakonam.
3. The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 8/9 9 S.A.No.1564 OF 2003 G.R.SWAMINATHAN,J.
PMU S.A.No.1564 of 2003 27.10.2021 https://www.mhc.tn.gov.in/judis 9/9