(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 21.02.2002 made in A.S.No.38 of 2000 on the file of Subordinate Judge, Sivaganga reversing the judgment and decree dated 12.11.1999 made in O.S.No.65 of 1999 on the file of Additional District Munsif Court, Sigaganga.
Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 21.02.2002 made in A.S.No.18 of 2000 on the file of Subordinate Judge, Sivaganga reversing the well considered judgment and decree dated 12.11.1999 made in O.S.No.65 of 1999 on the file of Additional District Munsif Court, Sigaganga.)
1. The plaintiff in the suit in O.S.No.65 of 1999 on the file of the Additional District Munsif Court, Sivagangai is the appellant in the above second appeals.
2. The plaintiff / appellant filed a suit for declaration that the suit property belongs to the temple and for consequential permanent injunction restraining the defendants from interfering with the enjoyment of the suit properties by the plaintiff/appellant. The suit property is an extent of 2.01.0 hectares equivalent to 6.46 acres in Survey No.291/1 in Poolangudi village (Sathanur Group) Eayangudi Taluk, Sivagangai District.
3. The case of the plaintiff / appellant is that the entire suit property consisting of temple, adjoining lands belongs to the temple by virtue of a grant that was in favour of the temple by the Maharaja of Ramanathapuram. It is the further case of the plaintiff / appellant that the land on the western side of the suit property, is used for the purpose of worshippers to assemble and to perform cultural programmes at the time of festivals, though it is admitted in the plaint that part of the suit property is a Oorani. It is further stated in the plaint that the Oorani is meant for the use of temple and hence, it is a private Oorani. Since the defendants 1 to 11 with the help of 12th defendant made an attempt to interfere with the lawful possession of the plaintiff / appellant, it is stated that the plaintiff temple was constrained to file the suit.
4. The contesting defendants filed a written statement disputing the claim of the plaintiff temple on the ground that Oorani and the substantial portion of the suit property are the public Oorani and communal land meant for the common use of the entire villagers and that the temple cannot claim exclusive ownership. Though the defendants admitted that the temple is in existence in respect of a small portion of the suit property namely about 5 cents, the remaining land namely the suit property is being enjoyed by the villagers as a communal land and as a thrashing floor (fsk;). The defendant also pleaded that they are residing in the neighbouring land which are located adjoining the suit property and that they are using the said property as a common land belonging to the villagers. Since the suit property is enjoyed only as a thrashing floor and Oorani and for other communal purposes, the property cannot be claimed to be a property of any individual including the plaintiff's / appellant's temple. The trial Court decreed the suit holding that the defendants have not proved their case that the suit property is being enjoyed as a thrashing floor or as a communal land. The trial Court on the basis of the document filed by the plaintiff / appellant came to the conclusion that the suit property belonged to the plaintiff's / appellant's temple. The defendants 1 to 3 and 11 filed an appeal in A.S.No.18 of 2000 on the file of the Sub Court, Sivagangai. Another independent appeal in A.S.No.38 of 2000 was also filed by defendants 13 and 15 before the Sub Court, Sivagangai, challenging the judgment and decree of the lower Court in the suit in O.S.No.65 of 1995. The lower appellate Court, after considering the documents filed by the plaintiff / appellant rejected the case of the plaintiff / appellant on the ground that the plaintiff / appellant failed to establish its title to the suit property. After noting that the suit property consists of a temple and Oorani, cart track and other communal land, the lower appellate Court correctly came to the conclusion that the entire suit property except the small portion wherein the temple is located vests with the Government under Section 3(b) of the Tamil Nadu Estates (Abolition and conversion into Ryotwari) Act, 1948. It is to be noted that by virtue of a subsequent amendment even the private tanks and private Ooranies vest only with the Government. Since Section 14A of the Tamil Nadu Estates (Abolition and conversion into Ryotwari) Act, 1948, specifically prohibit the grant of patta in respect of the land which is classified as private tank or Oorani, the lower appellate Court is legally right in coming to the conclusion that the entire suit property cannot be treated as the property of plaintiff's / appellant's temple.
5. The documents Ex.A1 and A2 are the documents with reference to the administration of the temple under the control of the Tamil Nadu Hindu Religious and Charitable Endowments Department. Ex. A3 is the title deed. However, after it was transcribed, it was found that the said document do not refer to any survey number or boundaries so as to conclude that the suit property was conveyed under the said document. Assuming for a moment that the said old document is referable to the suit property, the plaintiff / appellant has not produced any patta at the time of implementation of the settlement under Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948. When the entire suit property vest with the Government free of encumbrances and the temple was not given any patta by the settlement authorities, in recognition of the temple's pre-existence right, the contention of the plaintiff / appellant temple that the temple is the owner of the suit property cannot be accepted unless it is independently established before a Civil Court that they are entitled to title. In the present case, except the document Ex.A3, there is no other relevant document to prove either title or continuous enjoyment of the suit property by the plaintiff. In the absence of any material to prove the title in favour of the temple, it follows that the property remain vested with the Government under the provisions of the Tamil Nadu Estates (Abolition and conversion into Ryotwari) Act, 1948 and there is no scope for treating the said land as a private land or the property of the temple as contended by the plaintiff / appellant.
6. The learned counsel for the plaintiff / appellant tried to impress this Court by stating that the land has been classified as temple etc. From his own version, it can be seen that the classification of the land gives an indication that except a small portion, where the temple is located, the remaining lands were classified as a communal land which vest with the Government. The temple referred to in the settlement register is only to indicate ownership of the temple over the temple land where the temple itself exists. The land being vested with the Government, the classification of land as communal land or thrashing floor would only support the case of the defendants / respondents.
7. The learned counsel for the plaintiff / appellant also relied upon Ex.A6 village Field Map for Survey No.99. Surprisingly, the plaintiff / appellant after getting certified copy of the plan, has independently drawn the boundaries and marked certain portions as Iyyanar Oorani and substantial portion as Iyyanar Kovil. In view of the interpolation / insertion of figures and drawings by the plaintiff / appellant in this document, it is not admissible in evidence. The lower Court have also made a note of this and marked this document as inadmissible in evidence.
8. The learned counsel for the plaintiff / appellant relied upon a judgment of this Court in the case of Arulmighu Chokkanathasamy Thirukoil v. Chokklingapuram Devangar Varthaga Sangam and another reported in 2008-4-L.W. 322. The learned counsel for the plaintiff / appellant relied upon paragraph 19 of the said judgment which reads as follows:
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.
9. In the above judgment, the learned Judge of this Court has referred to G.O.Ms.1300, Revenue Department, dated 30.04.1971 and G.O.Ms.No.1108, Commercial Taxes and Religious Endowments Department, dated 27.10.1980. As far as G.O.Ms.No.1300, is concerned, the scope of the Government Order is well known and it is relating to the rights of the persons to claim Ryotwari patta for the lands which are in their possession outside the purview of Act 26 of 1948. With regard to G.O.Ms.No.1108, dated 27.10.1980, in paragraphs 30, the learned Judge has extracted the portion of the said Government Order. The full text of the Government Order vide G.O.No.1108, dated 27.10.1980 is not extracted. It appears that this particular Government Order refers to the right of religious institutions to retain water bodies like Oorani subject to certain conditions. The above Government Order if it is to confer any right on any individual or a temple in respect of water bodies like private tank or Oorani, it will be contrary to the specific provisions of Tamil Nadu Act 26 of 1948. It is a well settled law and proposition that the executive order cannot supersede a statutory provision. Hence, the judgment reported in 2008-4-L.W.322, holding that the temples cannot be deprived of their right over tanks and that those water bodies and the areas appurtenant thereto are kept out of the purview of Section 14-A of the said Act has not been decided in a correct perspective and hence, cannot be relied upon as a precedent binding on this Court. Having regard to the factual findings of the lower appellate Court that the plaintiff / appellant has not proved his title to the suit property, this Court is of the view that the plaintiff / appellant has to fail in this Second Appeal. However, going by the document and evidence, I am of the view that the temple is entitled to get patta for the piece of land in which the temple is in existence and a reasonable extent of land which is appurtenant to the temple. Hence, the District Collector, Ramanathapuram District namely 12th respondent / 10th respondent respectively in both the second appeals, is directed to consider the case of the plaintiff / appellant for grant of patta in respect of the land in which the temple exists and a reasonable portion of the land which is appurtenant to the temple for the benefit of the worshippers in that village. The District Collector, Ramanathapuram District, is also directed to conduct enquiry and maintain the communal land strictly for the purpose for which the land was being used for a long time as common to the villagers. As pointed out earlier, it will be in the interest of the public and the villagers to maintain and preserve water bodies. Hence, the District Collector concerned is directed to maintain and preserve water body with its full extent as per the old records and to see that the area which is being used as thrashing floor and for other communal purposes on ground should be reflected in the revenue records so as to prevent any encroachment by any individual. It is also conceded fairly by the learned counsel representing some of the respondents / party individuals that they are also permitting the land which are reserved as thrashing floor for the visiting public of the temple during festivals and on other important functions in the temple. The said statement is recorded for the purpose of revenue authorities while dealing with the issues relating to the enjoyment of the suit property by the villagers and the temple.
10. Subject to the above observations, both the Second Appeals are dismissed. However, there is no orders as to costs. Consequently, the connected miscellaneous petitions are closed.