1. This is a petition under Article 226 of the Constitution by the hereditary trustees and poojaries of the Velloi Vinayagar temple of Puliampati, Palladam taluk, Coimbatore Dt. for the issue of a writ of certiorari to remove the order passed by the District Collector on 14-2-1957 in R. Dis. No. 30402/56 to the file of the court and to quash the said order.
2. S. No. 50 in Puliampatti village known as Andikadu has been granted as Devadayam inam by a King of Mysore for the support of Pagoda of Vellai Vinayagar. At the time of the Inam Commission proceedings, Poojari Pangi Andi was in possession of the inam. The Inam Commissioner confirmed the inam permanently to the Pagoda so long as it was well kept up and issued on 19-12-1863 inam title deed No. 1076 in the name of Pangi Andi, Poojari of the temple. In 1956 the land was in the possession of respondents 4 and 5. The Sub Collector of Pollachi, exercising the powers of Collector under Section 35(2) of the Madras Hindu Religious and Charitable Endowments Act 1951 (Madras Act XIX of 1951) initiated proceedings suo motu for resumption of the land.
Notice was issued (1) to the authorities constituted under the Hindu Religious and Charitable Endowments Act having jurisdiction over the area, (2) to the persons who were at that time poojaries and trustees of the temple and (3) to respondents 4 and 5. The fifth respondent filed a written statement that she found that the land was inam land granted for the service of pooja in the temple and that she had no objection to the land being resumed and re-granted. The fourth respondent filed a statement of objections making the following allegations. The inam land, namely, S. No. 50, belonged to his ancestors and had been in the possession of the family for about 150 years.
The 5th respondent was his great grandfather's brother's grandson's wife. His branch of the family was entitled to half share in the land, and her branch of the family to the other half. He was in separate possession of a half of the land about 5 1/2 acres in extent, as full owner and she was in possession , of the other half of the land. The members of the family had never paid any quit rent or jodi nor had they paid any rent to the authorities of the temple. On those allegations, he pleaded that he was the owner of the land in his possession and that, at any rate, he had acquired title to that land by adverse possession on the part of himself and his predecessors-in-title.
3. The Sub Collector (hereinafter referred to as the Collector) after enquiry held that the land was Devadayam inam land granted to the poojari of Vellai Vinayagar temple for doing pooja in the temple; that the respondents were In possession and enjoyment of the land; that they have not shown cause against resumption of the inam land; that Chinna Andi and Ganapathi Pandaram were the grandsons of Pongiandi in whose name title deed 1076 was issued on 19-12-1863 and that they were the poojaries of the temple at the time of the order. On those findings, the Collector ordered resumption of the inam land and regrant of it to Chinna Andi Pandaram and Ganapathi Pandaram, who were trustees and Poojaries of the temple, for the performance of pooja in the temple.
4. Against the order of the Collector, the 4th respondent appealed to the District Collector under Section 35(2)(d) of the Act. The District Collector held that the property had been in the possession of the appellant's family for 60 years prior to 30th September 1954, the date of commencement of Madras Act XIX of 1951, that the appellant had acquired title by adverse possession and that the Collector had no power to resume the kudiwaram of the inam land. In regard to the melvaram of the assessment, the District Collector held that there was no period of limitation for the exercise by the Government of the right to impose assessment.
In that view, he set aside the order of the Collector in so far as the order of the resumption of the land and regrant of the same to Chinna Anadi Pandaram and Ganapathi Pandaram, trustees and poojaries of the temple was concerned and left it to the Collector to consider by independent proceedings the question of imposing assessment on the land. The trustees and poojaries in whose favour regrant was ordered by the Collector file this petition praying that the District Collector's order be quashed.
5. In holding that the members of the 4th respondent's family had been in possession of the main land for 60 years before 30-9-1951, the District Collector did not act on the oral evidence of the fourth respondent, who said that the land had been in the possession and enjoyment of his family for about 150 years. He was 56 years old in 1956 and could not have personal knowledge of possession and enjoyment before, say 1910. He said that his. mother had told him about possession and enjoyment of the land. The mother was alive and was not called.
6. The District Collector based his finding of adverse possession on the hypothecation deed executed by the 4th respondent's father in 1899 and the deed of partition entered into on 16-3-1892 between the 5th respondent's father-in-law and his father. The District Collector held that in order that the fourth respondent might succeed in his contention of having acquired title by adverse possession to defeat the Government's right of resumption, the fourth respondent would have to prove adverse possession for at least 60 years ending with 30-9-1951, that is to say, adverse possession commencing not later than 30-9-1891.
According to the District Collector, the documents produced proved adverse possession from 18-3-1892. The partition deed dated 16-3-1892 stated that the properties, which were being divided and which included the inam land, were the fifth respondent's father-in-law's ancestral and self acquired properties. The inam land which was divided by that document between the father and the son consisted of the southern six acres of S. No. 50, which is 10-41 acres in extent. Of the southern six acres, the northern parcel, three acres was allotted to the father's share and the southern parcel to the son's share.
The father's share was stated to be south, of the land of Maniyam Kasturi Naicken. Maniyam Kasturi Naicken was the father of the fourth respondent. According to the partition deed, the land in Kasturi Naicken's possession would be 4.41 acres in extent. In the mortgage deed dated 25-3-1899 a half of S. No. 50 was mortgaged along with other properties. The mortgage deed also stated that the properties mortgaged consisted of the mortgagor's ancestral and self acquired properties.
There was no evidence before the District Collector that the inam land S. No. 50 was one of the properties claimed either under the partition deed or under the hypothecation deed to be ancestral properties. The District Collector said that since the document of 1892 referred to ancestral as well as self acquired properties in general, there was a natural presumption that this inam land among others should have come into the possession of the family at least some years prior to that date. On the basis of what he called that natural presumption, he found that the properties of the 4th respondent's family had been in the possession of the family from before 30-9-1891 claiming to be owners thereof.
7. In holding that the recitals in the partition deed gave rise to a natural presumption that the property had been in the possession of the family for at least some years before that date, the District Collector was plainly in error. Assuming that the Government's power of resumption could, in this case, be defeated by adverse possession on the part of a person in the position of the 4th respondent for 60 years ending with 30-9-1951, there was not evidence of such possession before the District Collector, and his order is liable to be quashed on that ground.
8. The District Collector chose the date 30-9-1951 as the date beyond which adverse possession could be of no avail as against the Government by reason of Section 94 of the Madras Act XIX of 1951. Section 94 enacts,
'Nothing contained in any law of limitation for the time being in force shall be deemed to vest in any person the property or funds of any religious institution which had not vested in such person or his predecessor-in-title before the commencement of this Act.'
The District Collector held that, if by 30-9-1951, the fourth respondent had not acquired title by adverse possession, he could not, thereafter, by reason of adverse possession, acquire title which would be effective against the Government's power of resumption. If the District Collector is right in his view that the power of the Government to resume the land could be defeated by adverse possession on the part of the 4th respondent and his predecessors-in-title, the period of 60 years, of such adverse possession should be counted and riot immediately before 30-9-1951, but immediately before the coming into force of Madras Act XI of 1934, which introduced Section 44-B in Madras Act II of 1927.
The Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951) repealed, and superseded the Madras Hindu Religious. Endowments Act, 1927 (Madras Act II of 1927). Section 44-B was introduced in Madras Act It of 1927 by Amending Act XI of 1934. In Madras Act XIX of 1951, Section 35 takes the place of Section 44-B of Madras Act II of 1927. Under Section 44-B (2) of Madras Act II of 1927, the Collector had power, either on his own motion or on the application of the persons specified in that section, to resume an inam and regrant it. The order passed by, the Collector resuming and regranting the inam could be executed by him in the manner prescribed.
9. The argument in support of the view that, by 60 years adverse possession on the part of a person in the position of the 4th respondent, the Government's right to resume the inam is defeated may be thus stated. The inam was granted for the performance of pooja in the temple. The land could be held by the poojari so long as the temple was in existence and he was doing pooja. If the land got into the possession of a person who was not a poojari and such person made no contribution towards the performance of the pooja or the maintenance of the poojari while the temple was in existence and pooja was being regularly performed, the inam became liable to be resumed by the Government.
Unless the person in possession surrendered possession to the Government, the Government should, for resuming such inam, institute a suit in the civil court having jurisdiction, Such suit would, for purposes of limitation be governed by Articles 130 and 149 of the Limitation Act. Such a suit would become barred on the expiry of 60 years from the date on which adverse possession commenced. The suit if instituted would in essence be a suit for possession. Failure to institute such a suit would bring in the consequences enacted in Section 28 of the Limitation Act which is in these terms :
'At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.'
The result is that, on the expiry of 60 years from the commencement of adverse possession, the Government's right to resume the land gets extinguished.
10. The argument set out above is centred on Section 28 of the Limitation Act. The essential condition for the application of Section 28 is the right of an aggrieved person to institute a suit for possession of the property concerned. If the right of such person to institute a suit for possession is expressly or by necessary implication barred by statute, Section 28 cannot be invoked and there can be no extinguishment of the title of such person to the property concerned. For an application of that principle, please see Srinivasa Vavadachari v. Narasinga Pillai, 1911 1 M.W.N. 208.
11. Section 44-B (2) of Madras Act II of 1927 enacts, that the Collector may, on his own motion or on the application of any of the persons mentioned in that section, pass an order directing the resumption and regrant of the inam which is not serving the purposes for which it had been granted. Since that method of enforcement of the Government's right of resumption and regrant is expressly provided by the Legislature, the Government's right of suing to enforce its right to resume and regrant the land, in cases to which Section 44-B (2) applies, is by necessary implication, barred. It follows that, if the Government's right to resume and regrant the land had not been extinguished when Section 44-B (2) of Madras Act II of 1927 came into force, such right could not be extinguished thereafter by the operation of Section 28 of the Limitation Act. That would be the position even if we assume that there could be extinguishment of such right by reason of adverse possession prior to the enactment of Section 44-B (2).
12. The respondent's learned counsel contends that the proceedings before the Collector under Section 44-B (2) are themselves in the nature of a suit, to which the provisions of Articles 130 and 149 and Section 28 of the Limitation Act become applicable. Learned counsel says that the Collector, acting under Section 44-B (2) is a Revenue court and that, in proceedings under that section, the Government should be regarded as the plaintiff.
13. Several statutes dealing with matters concerning public welfare vest powers in designated officers for determining questions which might affect rights of citizens. In every such case, such officers have to act judicially after giving notice to the persons likely to be affected and after giving them opportunity of adducing evidence and of being heard. Whenever an officer has legal authority to determine questions affecting rights of citizens, he is under an obligation to act judicially and he becomes subject to the controlling jurisdiction of the High Court exercised in the writs of certiorari and prohibitions. But that circumstance would not, by itself, make such an officer a court.
The facts that the Collector, who has to pass orders under Section 44-B (1) is usually an officer of the Revenue department, and he has to act judicially in determining the questions arising for decision under that section would not make him a revenue court any more than the facts that, in relation to matters of marketing or agriculture, an officer of the agricultural department is invested with power to determine questions relating to the rights of traders or ryots would constitute such officer an agricultural court. Further the Government do not have the right to apply to the Court to exercise his powers under Section 44-B (2) of Act II of 1927, or Section 35 (2) of Act XIX of 1951, and cannot, in any sense of the term, be regarded as the plaintiff in proceedings under either of the sections.
14. In support of the proposition that the Collector, exercising his powers under Section 44-B (2), of Madras Act II of 1927 or Section 35 (2) of Act XIX of 1951, should be regarded as a revenue court, the respondents's learned counsel relies on Harryhur v. Madub Chander, 14 Moo Ind App 152 and Maharaja Dheevraj Raja Mahtab Chund Bahadur v. Bengal Government, 4 Moo Ind App 468 . These cases related to suits for resumption of rent free tenure, instituted under Bengal Regulation XIX of 1793, and Regulation II of 1879. Under those Regulations, lekhraj lands fell under three categories, lands in respect of which the grant had been made before 12-8-1765, lands in respect of which grants had been made between that date and 1-12-1790 and lands in regard to which the grant had been made subsequent to 1-12-1780,
The inams falling in the first category were declared to be valid and not resumable. Lands in the second category, with certain exceptions and subject to certain conditions, were declared to be invalid and as such liable to be resumed. Grants falling under the third category were declared void. In regard to lands of the second category, the Government or the landholder could institute suits for resumption according as the lands exceeded 100 beeghas or did not exceed 100 beeghas.
In regard to lands of the third category which were void, the landowner was authorised to 'dispossess the grantee by the high hand, without having recourse to the machinery provided by other sections of the Regulation for the resumption or assessment of resumable Lekhraj tenures; or to any other legal proceeding.' Suits for resumption for which provision had been made by Regulation XIX of 1793 and Regulation II of 1819 had, in some cases, to be instituted in the civil court and in some other cases before the Collector. But owing to confusion in the mind of litigants and their advisers, suits were instituted in Collector's courts even in cases in which he did not, under a proper construction of the enactment, have jurisdiction to entertain such suits.
Entertainment of such suits by the Collector and decision of such suits by him 'had grown into a custom' (Please see page 156 in 14 Moo Ind App Cases), There was further a Regulation relating to limitation in Bengal, namely, Regulation II of 1805. Sub-section (2) of Section 11 of that Regulation was to the effect that all claims on the part of the Government, whether for the assessment of the land held exempt from public revenue or for any other public right, should be heard, tried and determined, if the same be preferred at any time within the period of 60 years from and after the origin of the cause of action. (Please see Anand Kumar Battacharjee v. Secretary of State, I.L.R. Cal 973 :A.I.R. 1916 Cal 446
In that state of the law, the Judicial Committee decided in Maharajah of Burdwan's case, 4 Moo Ind App 466 , that the right of the Government to resume a voidable lekhraj tenure comprising more than 100 beeghas was subject to sixty years' limitation. That wag the statement of the law made in relation to suits which the Government of Bengal could institute under the laws in force in that Presidency for resumption of a tenure, which, under the relevant Regulations, was held under invalid title and was, for that reason, resumable. That statement of the law was re-affirmed in 14 Moo Ind App 152 .These rulings can have no application to proceedings which a Collector could take suo motu under Section 44-B (2) of Madras Act II of 1927 or Section 35 (2) of Madras Act XIX of 1951.
15. We are unable to agree with the respondent's learned counsel that proceedings before the Collector under Section 44-B (2) of Madras Act II of 1927 or under Section 35 (2) of Madras Act XIX of 1951 are in the nature of a suit to which the provisions of Articles 130 and 149 and Section 28 of the Limitation Act can he applied.
16. We hold that, assuming that the Government's right to resume a land granted in inam for the purpose of service connected with a temple and to regrant the land to the temple for the performance of the service, can be extinguished by adverse possession on the part of a person unconnected with the temple or the service, such adverse possession should have lasted for at least 60 years before the commencement of Section 44-B of Madras Act II of 1927.
17. In the case before us, on the evidence adduced before the District Collector, adverse possession commenced in 1892, that is 42 years before the commencement of the Amending Act of 1934, and was therefore, ineffective, even on the assumption made above, to extinguish the Government's right of resumption. Since even on that assumption the 4th respondent had not acquired title secure against proceedings under Section 35 (2) of Madras Act XIX of 1951, the order of the Collector was right and the order of the District Collector is liable to be quashed for errors of law apparent on the face of the record.
18. The District Collector gives no reasons why he set aside the order of the Collector in regard to land which was in the possession of the 5lh respondent and as to which she had no objection to resumption. According to the partition deed dated 10th March 1892, which is accepted by the Collector as evidence of possession, her branch of the family was in possession of the southern six acres of S. No. 50, 10-41 acres in extent.
19. Subsequent to the enactment of Section 44-B (2) of Madras Act II of 1927, inams granted for the performance of pooja in a temple may be resumed only in accordance with the provisions of that section and, after its repeal in accordance with the provisions of Section 35(2) of Madras Act XIX of 1951. The question whether the Collector would have no power to pass an order of resumption under the provisions of that section if the person who would be dispossessed in execution of the order had been in adverse possession against the inamdar for over 60 years prior to the enactment of S. 44-B (2) of Act II of 1927, we leave undecided.
20. The order passed by the District Collector on 14th February 1957 in R. Dis. No. 30402/56 is hereby quashed. No costs.