Madras High Court
S.Rani Selvaraj vs State By on 21 April, 2022
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
CRL.O.P.No.8938 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.04.2022
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.No.8938 of 2018 and
Crl.M.P.No.4612 of 2018
S.Rani Selvaraj ... Petitioner
Versus
1.State by,
Inspector of Police,
S12, Chitlapakkam Police Station,
Chitlapakkam,
Chennai-67.
2.R.Chanthirasekaran ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to call for the records in Crime No.82 of 2018 on
the file of S12, Chitlapakkam Police Station and quash the same.
For Petitioner : Mr.D.Alexis Sudhakar
For R1 : Mr.A.Damodaran,
Additional Public Prosecutor
For R2 : Mr.R.C.Paul Kanagaraj for
Mr.S.Arivazhagan
*****
Page No.1 of 21
https://www.mhc.tn.gov.in/judis
CRL.O.P.No.8938 of 2018
ORDER
This Criminal Original Petition has been filed to quash the FIR in Crime No.82 of 2018, on the file of the 1st respondent Police.
2.The gist of the case is that the property in survey No.133/2B of 52 cents belongs to Thangam Murugappan Naicker, after his demise, all his legal heirs settled the property in favour of one Mohana, husband of Athikesavan on 13.12.2017 vide document No.10090 of 2017, thereafter, the said Mohana on 21.12.2017 executed a power of attorney over the above said property in favour of the 2nd respondent vide document No.10369 of 2017. Later, the 2nd respondent came to know that one Kumar and Kalyani had executed a release deed in document No.8186 of 2017 in favour of the petitioner by creating forged death certificate, legal heir certificate etc and subsequently, the petitioner executed the general power of attorney in favour of one Lakshmi Narasimhan vide document No.8196 of 2017. A complaint to the Special Tahsildar, Pallavaram and to the Sub Registrar, Pallavaram for creation of forged document, death certificate, legal heir certificate was given. During enquiry, it was found Page No.2 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 that the documents of the 2nd respondent are proper and true and the documents submitted by the other parties were forged documents. Hence, the 2nd respondent lodged a complaint to the Commissioner of Police, Vepery, Chennai on 02.01.2018 and the same was forwarded to the 1st respondent Police on 08.01.2018. Since no action was taken on his complaint, he approached this Court in Crl.O.P.No.1771 of 2018, wherein this Court, by order, dated 22.01.2018 directed the 1st respondent Police to register the FIR and proceed with the investigation. Thereafter, a case in Crime No.82 of 2018, for offence under Sections 465, 468, 471, 420 and 506(i) of IPC was registered on 07.02.2018 against Kumar, Kalyani, Rani Selvaraj (petitioner), Lakshmi Narasimhan, Ramesh, Karthikeyan and Sekar.
3.The learned counsel for the petitioner submitted that according to the petitioner, the land of 53 cents in survey No.133/2B situated at Jamin Pallavaram originally belong to her grandfather Murugappa Naicker. After the death of her grandfather, the property got devolved on her father Velayutha Naicker, after his demise, the petitioner and his brother Page No.3 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 Vembuli are the legal heirs for the above said property. After the demise of her brother Vembuli, the petitioner obtained release deed from the legal heirs of Vembuli viz., Kumar and Kalyani vide document No.8186 of 2017 on 12.10.2017 before the Sub Registrar, Pallavaram. Thereafter, the petitioner executed a power of attorney in favour of one Lakshmi Narasimhan and made him as power agent for maintaining the proerty in dispute, since the petitioner was suffering ill-health and due to old age. The learned counsel further submitted that the petitioner is the rightful owner of the property. When she was called for enquiry by the 1st respondent Police on the complaint of the 2nd respondent, the petitioner produced all documents in support of her contention, despite the same, she was made as one of the accused in this case. The documents produced by the 2nd respondent during enquiry are all falsified documents. After the preliminary enquiry, the 1st respondent Police ought to have referred the case as civil nature and ought to have directed the petitioner and the 2nd respondent to approach the civil Court, since there are claim and counter claim. On the contrary, the 1 st respondent Police held panchayat and attempted to resolve the issue in favour of the 2 nd Page No.4 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 respondent by force.
4.He further submitted that the petitioner's document are earlier to the documents of the 2nd respondent. The 2nd respondent has created forged document and claiming right over the property of the petitioner. If at all the 2nd respondent is aggrieved, he has to approach civil Court and not to the Police. The 1st respondent Police are in hand in glove with the 2nd respondent, who is a land broker, threatened the petitioner to settle the portion of land in favour of the 2nd respondent or else she and her relatives will be detained under Goondas Act. He further submitted that when the petitioner's grandfather Murugappa Naicker was in possession and enjoyment of the property, he took loan from the Cooperative Society and obtained loan in No.1668 during the year 1950. The learned counsel for the petitioner produced the passbook particulars of Cooperative Society, the patta issued in favour of Velayutha Naicker, voter ID card of Velayutha Naicker, Vembuli, Palaniyammal and Padma, death certificate of Velayutha Naicker, legal heir certificate of Velayutha Naicker, death certificate of Palaniyammal and the complaint given by the petitioner to Page No.5 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 the Commissioner of Police, Vepery, Chennai. He further produced the typed set containing 'A' Register copy, the letter of the Special Tahsildar, Town Settlement, Pallavaram in R.C.No.1585 of 2017, dated 24.10.2017, the proceedings of the Special Tahsildar, Pallavaram in R.C.No.18 of 2017, dated 24.11.2017.
5.In support of his contention, the learned counsel for th petitioner relied on the decision of the Hon'ble Apex Court in the case of "Mohammed Ibrahim & Ors., Versus State of Bihar & Anr., in Criminal Appeal No.1695 of 2009."
6.The learned Additional Public Prosecutor appearing for the 1 st respondent Police filed status report and submitted that during investigation, it was ascertained that the land in survey No.133/2B of Zamin Pallavaram does not belong to the 2 nd respondent, who is the defacto complainant and further, it came to light that the land belongs to Hindu Religious and Charitable Endowment Department (Hereinafter referred to as 'HR & CE Department'). A complaint now received from Page No.6 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 the Assistant Commissioner, HR & CE, Chengalpet on 11.01.2022. He further submitted that the Additional Commissioner of Police, Central Crime Branch, Chennai received a complaint from one Lakshmikanth Barathidasan, Assistant Commissioner, HR & CE, Chengalpet complaining that the property around 53 cents belonging to Sri Kanagavalli Thayar Samadhe Sri Vaikundavasa Perumal Kovil situated at Jamin Pallavaram is encroached by some miscreants. From the copy of the complaint, it is seen that from the revenue records, the property in dispute is mentioned as FD No.20 service Inam land of Sri Kanagavalli Thayar Sametha Shri Vaikundavasa Perumal Kovil. The revenue records proved that the land belongs to the temple and it is an inam land. The release deed in document No.8186 of 2017 executed in favour of the petitioner by Kumar and Kalyani and the power of attorney executed in favour of Lakshmi Narasiman vide document No.8196 of 2017 are all forged documents. Likewsie, the document No.10090 of 2017 executed in favour of one Mohana by legal heirs of Thanga Murugappa Naicker and the power of attorney in document No.10369 of 2017 executed by the said Mohana in favour of the 2 nd respondent, are all forged Page No.7 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 documents. The Hon'ble Apex Court in S.L.P.Civil Appeal No.1995 to 2021 had passed guidelines that the patta wrongly given in the name of individuals for temple property to be cancelled. On the complaint of the 2nd respondent, a case in Crime No.82 of 2018 was registered, for offence under Sections 465, 468, 471, 420 and 506(i) of IPC by the 1 st respondent Police and thereafter, the case was transferred to the file of the Inspector of Police, Central Crime Branch, Greater Chennai Police on 21.07.2018 as CCB Crime No.119 of 2018, who is the Specialized agency to investigate document based offence. Hence, he prayed for appropriate direction of this Court.
7.The learned counsel for the 2nd respondent/defacto complainant submitted that on the complaint, dated 02.01.2018, the above case came to be registered on 07.02.2018. Initially, the Police were reluctant to register the FIR and only on the direction of this Court, the FIR could be registered. Immediately, the petitioner approached this Court, due to which the investigation is stalled. He further submitted that the petitioner along with his complaint produced the proceedings of Special Tahsildar Page No.8 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 (Settlement), Pallavaram in R.C.No.18 of 2017, dated 24.11.2017, patta in the name of Mohana, Town survey sketch and other documents and the same are produced before this Court by way of typed set. He further submitted that the claim by the Assistant Commissioner, HR & CE, Chenglapet is not proper and the same shall be defended appropriately in a Court of law. In any event, the petitioner creating forged document and making claim over the property, cannot be justified. Hence, he prayed for dismissal of the petition.
8.This Court considered the rival submissions and perused the materials available on records.
9.It is seen that the property in survey No.133/2B of 53 cents situated at Zamin Pallavaram is inam land belongs to Sri Kanagavalli Thayar Samadhe Sri Vaikundavasa Perumal Kovil as per the revenue records. The service inamthar misused the same and obtained patta in his favour. The inam land always rest with deity, it can never devolve to any person either in the name of petitioner's group or to the 2 nd respondent's Page No.9 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 group.
10.This Court on earlier occasion in the case of "P.Moorthi Versus the Superintendent of Police, Tiruvannamalai District, Vengikkal, Thiruvannamalai reported in 2021-2-LW(Crl)703 " dealt with the same cause of action and held as follows:-
29.For a clear understanding of Inam Abolition Act, this Court extracts the relevant portion of the judgment in the case of "Sri Karivardaraja Perumal Temple and Ors.
Versus K.S.J. Raju Chettiar and Ors. reported in MANU/TN/0463/1976":-
"12. As we mentioned earlier the whole purpose of Tamil Nadu Act XXX of 1963 was to abolish the minor inams in the State and introduce the ryotwari settlement in their place. The scheme of the Act, in its operative provisions, was so contrived to effectuate this desired legislative objective. One of the objects being abolition of the minor inams, it was necessary for the legislature first to do away with the rights and obligations, powers and privileges that were in vogue under the pre- exacting system, which it was decided to destroy. Understandably enough therefore, Section 3(a) explicitly declares, inter alia, that as and from the appointed day, the Tamil Nadu Page No.10 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 Act XXX of 1963 alone shall be applicable to the minor inams and that any other existing law on the subject shall be deemed to be repealed. Section 3(c) declares that all rights created by the inamdar in or over his inam before the appointed day shall cease and determine as against the Government. Section 3(g), which is important for the present discussion, lays down that:
any rights and privileges which may have accrued in the minor inam to any person before the appointed day against the inamdar shall cease and determine and shall not be enforceable against the Government or against the inamdar and every such persons shall be entitled only to such rights and privileges as are recognised or conferred on him, by or under this Act.
It is in the context of these previsions that the statutory machinery for the introduction of the ryotwari settlement and the grant of ryotwari patta should be considered.
13. In our considered opinion, the claim, as put forward by the Respondents cannot lie in view of the dear provisions of Section 3(g) of the Act. While Section 3(c) destroys the rights created by the inamdar himself in or over his inam, Section 3(g) applies to rights which had accrued to any person against the inamdar and puts an end to all such rights and interests which had accrued before the appointed day.
Title by adverse possession, obviously does not fall under Section 3(1), but the language of Section 3(g) apply covers it. Acquisition of title Page No.11 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 to the Kudivaram by prescription or adverse possession must, in in our view, be held to answer the description accrual of rights against the inamdar occurring in Section 3(g) of the Act. Two results flow from this position. In the first place, such right as might have accrued to the Respondents against the Temple cease to exist. Secondly in the place of these accrued rights which have ceased to exist, nothing would be recognised by the law excepting such rights as are conferred or recognised under the Act itself. It follows therefore, that the Respondents could not rely on their so sailed prescriptive title which accrued to them as against the temple as a foundation for claiming ryotwari patta under Section 8(1) of the Act.
14. There is yet another consideration. In our view the very scheme of Sections 8 rules out of the recognition of prescriptive title to Kudivaram right in a religious inam. We have earlier referred to the terms of Section 8(1) to the effect that its provisions are subject to the provisions of Sub-section (2). Section 8(2) reiterates the same overriding effect in its opening words, Notwithstanding anything contained in Sub-section (1)...Section 8(2) as we have noted earlier, is a special provision in the matter of grant of ryotwari patta specially designed for iruvaram religious inams. Section 8(2) has two clauses, clause (i) and clause (ii). Under the scheme of the sub-section, clause (ii) would apply only where clause (i) does not apply. Clause (i) has two sub-causes, (a) and
(b). They are in the following terms:
Page No.12 of 21
https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018
8.(2)(i) where the land has been transferred by way of sale and the transferee or his heir, assignee, legal representative or person deriving rights through him had been in exclusive possession of such land:
(a) for a continuous period of sixty years immediately before the 1st day of April, 1960, such person shall, with effect on and from the appointed day, be entitled to a ryotwari patta in respect of that land;
(b) for a continuous period of twelve years immediately before the 1st day of April, 1960, such person shall, with effect on and from the appointed day, be entitled to a ryotwari patta if he pays a consideration to the Government in such manner and in such number of instalments as may be prescribed an amount equal to twenty times the difference between the fair rent in respect of such land determined in accordance with the provisions contained in the Schedule and the land revenue due on such land.
These two sub-clauses contemplate that ryotwari patta in an iruvaram minor inam of a religious institution would be denied to that institution and would be granted to any other person only in cases where that other person is able to establish two things; (i) that he had obtained a transfer of the land from the religious institution by way of sale; and (ii) that he had been in uninterrupted possession of the Page No.13 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 land for a period of sixty years or twelve years, as the case may be immediately before 1st April 1960. Both the conditions, the transfer by sale as well as the continuous possession, must be fulfilled in order that the said provision may be relied on. In Marimuthu v. K.K. Sri Sankaranarayanaswami Temple 87 L.W. 652 it was held that where a religious or charitable inam land had been alienated, but possession was not proved as provided in Clause (1) of Sub-section (2) of Section 8, the alliance will not be entitled to patta. In a case where, such as the present, persons claim kudivaram interest solely on the basis of adverse possession, Section 8(2)(i)(a) or (b) cannot, obviously apply. The fact that these provisions require not merely long possession, but also a right derived from actual transfer of title by purchase as the foundation of the claim shows that the legislative intention was not to recognise, for the purposes of the Act, any claim to ryotwari patta on the basis, merely, of adverse possession.
15. To sum up, on the very language of the provisions of Section 8(1), read in the context of Section 8(2), Respondents cannot ask for a ryotwari patta in their favour. The expression lawfully entitled to the Kudviaram occurring in Section 8(1) would only be applicable to cases where the person claiming to be entitled to ryotwari patta is in a position to show that he was entitled to the kudivaram interest under the very terms of the grant of the inam. On the terms of Section 8(1) an inamdar who is the grantee of both the varams would certainly be entitled to Page No.14 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 the kudivaram interest. So too would be a person holding land as a kudivaramdar under an inamdar the grant to whom is of the melwaram alone. In cases where the grantee is of both the varams and is, in additions religious institution, Section 8(1) cannot apply, because of the special provisions under Sub-section (2). We have already referred to the provisions of Section 8(2)(i) clauses (a) and (b). Section 8(2)(ii) provides for those cases which are not covered by Section 8(2)(i)(a) and (b) clause (ii), in other words, provides for all cases of iruvaram religious, in as much in which there have been no transfer by way of sale of the land and the transferee is not in possession at all or is in possession for less than twelve years continuously prior to 1st January 1960. In the case of such lands, it is categorically enacted that the ryotwari patta has got to be granted only to the religious institution and to no other persons. In Marimuthu v. K.K. Sri Sankaranarayanaswami Temple 87 L.W. 652 it has been held that if either of the provisions in clause (a) or (b), is not satisfied, then under clause (ii) of Section 8(2) the Tribunal will have to grant patta to the institution itself. To the same effect is an unreported decision of this Bench dated 15th March 1976 in S.T.A. No. 66 of 1973. In that case, Sri Sandhi Vinayagar Devasthanam, Tirunelveli, was the grantee of a Devadhayam Inam Grant consisting of both the varams. It was found as a fact that the lands were, however, in the possession and enjoyment of the Respondents. But, it was also found that there was no sale of the land on the basis of Page No.15 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 which possession was claimed within 60 years or within 12 years before 1st April 1960 in favour of the Respondents or their predecessors-in- interest. In the circumstances, the Bench held that Section 8(2)(ii) being applicable, the religious institution cannot be deprived of a patta. It was observed that a reading of that sub-section itself would show that the application should succeed and the relief prayed for by him had to be granted.
16. In view of the above legal position, we have no doubt whatever that in this case it is the Appellant temple that should get the ryotwari patta in regard to the lands in question. There can be no question at all that Section 8(2)(ii) applies to the temple in regard to these lands. We have already held the grant in the temple's favour to be iruvaram lands, and although the possession may not be with he temple for over 12 years or even 60 years, the persons in possession have not been able to make out that their possession and those of their predecessors in title are derived from a transfer of title by the temple by way of sale. It follows that Section 8(2)(i) does not apply. Thus, the residuary provision in Section 8(2)(ii) clearly applies and the temple would be exclusively entitled to the patta. We hold accordingly."
30. On appeal, the Hon'ble Apex Court confirmed the above decision of this Court reported in MANU/SC/0060/1996 : AIR 1996 SC 234. In the case of Page No.16 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 "A.A. Gopalakrishnan Versus Cochin Devaswom Board and Ors. reported in MANU/SC/7819/2007 : AIR 2007 SC 3162", the Hon'ble Apex Court held as follows:-
"10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their Trustees/Archaks/Sebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the concerned authorities. Such acts of fences eating the crops' should be dealt with sternly. The Government, members or trustees of Boards/Trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation."
11.It is not in dispute that the Assistant Commissioner, HR & CE, Chengalpet lodged a complaint claiming that the land in survey No.133/2B of Zamin Pallavaram is a temple property, iruvaram Page No.17 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 devadayam land of Sri Kanagavalli Thayar Samadhe Sri Vaikundavasa Perumal Kovil. The presumption under Section 44 of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 is in favour of the temple authorities. Idol is a minor and the Court is the custodian to safeguard the same and hence, the minor interest cannot be abandoned.
12.In view of the above, the Additional Commissioner of Police, Central Crime Branch, Chennai is directed to monitor the investigation in Crime No.119 of 2018 and investigate the complaint of the Assistant Commissioner, HR and CE, Chengalpet, dated 11.01.2022 as part of Crime No.119 of 2018 and inform the Commissioner, HR and CE, Chennai about the progress of the investigation periodically every two months. The Commissioner, HR & CE, Chennai to take appropriate action to retrieve the temple inam land.
13.The Assistant Commissioner, HR and CE, Chengalpet to appear before the 1st respondent Police, submit documents and records in support Page No.18 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 of his complaint, dated 11.01.2022. The concerned Tahsildar to produce the temple revenue records pertaining to the inam lands to the 1 st respondent Police and cooperate with the investigation.
14.The Temple, Revenue and Police officials to ensure that the right of the idol is safeguard and the property is retrieved. It is also made clear that no civil Court to entertain vexatious petitions on the above property in dispute.
15.In the result, this Court is not inclined to quash the FIR against the petitioner. Hence, this Criminal Original Petition stands dismissed.
21.04.2022 Index: Yes/No Internet: Yes/No vv2 To
1.The Inspector of Police, S12, Chitlapakkam Police Station, Page No.19 of 21 https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 Chitlapakkam, Chennai-67.
M.NIRMAL KUMAR, J.
vv2
2.The Public Prosecutor, High Court, Madras.
Copy To:
1.The Commissioner, HR & CE, Nungambakka, Chennai.
2.The Additional Commissioner of Police, CCB, Vepery, Chennai.
3.The Assistant Commissioner, HR & CE, Chengalpet.
4.The Inspector of Police, CCB, Vepery, Chennai.CRL.O.P.No.8938 of 2018 Page No.20 of 21
https://www.mhc.tn.gov.in/judis CRL.O.P.No.8938 of 2018 21.04.2022 Page No.21 of 21 https://www.mhc.tn.gov.in/judis