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Subramania Pillai and anr. Vs. the Secretary of State for India in Council Represented by the Collector of Tinnevelly - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1911)ILR34Mad353
AppellantSubramania Pillai and anr.
RespondentThe Secretary of State for India in Council Represented by the Collector of Tinnevelly
Cases ReferredBalvant Ramachandra Nath v. The Secretary of State
possession, nature of, necessary to prove lost grant or title by adverse possession - the madras forest act v of 1882, sections 3, 16, 25--notification under section 25 of reservation made before the act extinguishes all rights existing at time of reservation. - - (a) the subordinate judge finds that all the disputed sites lying to the west of the river bad (nos. this portion of the plaint property is clearly disunited by the river and the foot of the hill, and the subordinate judge's inclusion of the whole site west of the river bed in his award to the temple is justified. 2). this is situated at the very foot of the falls, and has been hollowed out of the natural rocky bed of the river partly by the action of the water, and partly by blasting (vide exhibit xviii-e). forming, as it.....1. the plaintiffs in the suit out of which these appeals arise are the trustees of the kuthalanathaswami temple of courfeallam, the defendant being the secretary of state for india. the plaintiffs sue to establish their title to about three acres of land lying immediately to the south of what are admittedly the temple premises, demarcated as s. no. 482 of courtallam village. the land sued for is valueless for cultivation purposes, but its importance lies in the fact that it contains the famous courtallam waterfall and bathing pool, and sundry mantapams and sacred sites adjacent thereto. the plaintiffs claim the site in virtue of immemorial possession as part of the temple precincts and also by adverse possession for more than the statutory period. the defendant denies that' there has been.....

1. The plaintiffs in the suit out of which these appeals arise are the trustees of the Kuthalanathaswami temple of Courfeallam, the defendant being the Secretary of State for India. The plaintiffs sue to establish their title to about three acres of land lying immediately to the south of what are admittedly the temple premises, demarcated as S. No. 482 of Courtallam village. The land sued for is valueless for cultivation purposes, but its importance lies in the fact that it contains the famous Courtallam waterfall and bathing pool, and sundry mantapams and sacred sites adjacent thereto. The plaintiffs claim the site in virtue of immemorial possession as part of the temple precincts and also by adverse possession for more than the statutory period. The defendant denies that' there has been any exclusive or adverse possession of any portion of the disputed site on the part of the plaintiffs, and further pleads that by virtue of its inclusion in block No. Ill of the Tenkasi reserved forest in 1883 all pre-existing rights which may have existed have become extinguished.

2. The learned Subordinate Judge has found that only a portion of the disputed site falls within the reserved forest. The excluded portion contains the bathing pool, the lower portion of the hill side immediately above it and the various mantapams; and in his decree, he recognises the temple's title to the following:

A. The whole of the site below the pool including the Sandhyavandana mantapam and the site of the Kasilingaswami shrine destroyed by flood in 1891 (Nos. 5 and 4 on the plan, exhibit P).

B. The bridge (No. 10).

C. The Tirthavari mantapam and its verandahs on the eastern side (Nos. 6 and 7).

D. The site of the foot of the waterfall.

E. The pool itself (No. 2).

F. The rock above the falls on which the Sivalingams are out.

3. He also recognises its right to carry on the customary puja at the falls and at the Tirthavari mantapam and the necessary right of way from the bridge to the foot of the falls and to the pool called Pongumakadal half way up the bill. The rest of the plaintiffs' claim is dismissed: and the decree farther declares that the waterfall itself, the remainder of the hill-slopes, and the river bed belong to Government subject to the bathing rights of the European community and high-caste public conformably to the ' rights of the temple to carry on customary worship.

4. Against this decree both parties appeal.

5. It is convenient first to consider the question of the rights of the parties without reference to the reservation under the Forest Act, and then to determine the manner and extent to which they are affected by the Act. This is also the procedure followed by the learned Subordinate Judge.

6. In connection with the first question, some preliminary remarks are necessary, The learned vakil for the plaintiffs has argued with considerable force that his clients' claim should be considered not so much as an attempt to prove a title as against Government by 60 years' adverse possession, as to establish exclusive possession as owner for a sufficiently long period to give rise to the presumption of a 'lost grant.' As far as the decision of this case goes, however, this is a distinction without a difference. The Subordinate Judge has not rejected any portion of the plaintiffs' claim on the ground that the period of their proved enjoyment was deficient; nor do we see any reason to do so. The vital point is as to the nature of the enjoyment. Whether enjoyment is set up as the basis of a title by prescription, or as evidence on which a lost grant should be presumed, the same characteristics will be necessary. The plaintiffs relied upon the decisions of the House of Lords in Lord Advocate v. Lord Blantyre (1879) 4 A.C. 770 and Lord Advocate v. Young (1887) 12 A.C. 544, but we do not think the evidence in the present case brings it within the principle of these decisions.

7. In the second place, it must be observed that it is impossible to treat the area covered by the plaint claim as a single unit. The plaintiffs' claim must be separately considered with reference to each portion of the property sued for. As explained in Sivasubramanya v. Secretary of State for India I.L.R. (1886) Mad. 285, acts done on parts of a tract of land will only be evidence of possession of the whole where the said tract of land possesses a defined boundary. That is not the case here, unless we accept the plaintiffs' theory of the position of the reserved forest boundary, in which case the plaint land might be regarded as enclosed between the revenue survey line on the north and the reserved forest boundary on the south. But for reasons which will appear later, we find the reserved forest boundary to be coterminous with the revenue survey line in the locality in question; and in 'consequence it is impossible to treat the plaint land as possessed of a defined boundary to the south or to deal with it as unit.

8. Before dealing with the evidence of enjoyment of the,- different items of the suit property, reference may be made to such old official records as are forthcoming. These are extremely meagre. The plaintiffs produce an extract from a Hinduvi inam chitta prepared in 1844 (exhibit C); while on the defendant's side we have an extract from the paimash olugu chitta (exhibit X), eight years earlier in date, and the revenue survey plan and settlement register (exhibits VIII and VIII-a) prepared in 1863 and 1874 respectively. The boundaries given in exhibits 0 and X are, as might be expected, very loosely expressed. Exhibit 0 describes the temple boundaries thus: 'west of the Adivettiparai bridge, north of Aruvi Karai Malai, east of Sitharuvi Malai and south of Kuthala Nangai Amman temple.' Both the northern and eastern boundaries, it will be noted, are points and not lines. Accepting the southern boundary (Aruvi Karai Malai) literally, it would give the temple the pool, bridge and mantapams (items Nos. 2, 10, 4, 5 and 6 as marked in exhibit P) with the intermediate spaces, but not the slopes of the hill, or the Ponguma-kadal or the land lying above the head of the waterfall. Exhibit X gives these boundaries: 'north of the river, east of the western slope, south of Padinettampadi tower gate, and west of the river.' These would give the temple the Sandhyavandana mantapam (No. 5) and the ruined site (No. 4) with the surrounding rock, and absolutely nothing else.

9. These old records are not devoid of value, but it is impossible to place much reliance on them in determining boundaries to a matter of a few yards. The remarks of the Subordinate Judge in this connection in paragraph 12 of his judgment possess considerable force. No attempt appears to have been made at the time of the preparation of these accounts to check the boundaries stated by the village officials; and when a proper survey was effected in 1863 very considerable modifications were made. From exhibits VIII and VIII-a it appears that the bulk of the temple premises (27'67 acres) were surveyed as S. No. 482 (pagoda poramboke). A smaller plot (2'02 acres) was marked as S. No. 483 (flower garden poramboke) and a small tope (1-48 acre) as S. No. 481 (assessed Government dry land). In so doing the demarcation stones, while extending the eastern boundary of S. No. 482 considerably beyond the Adivettiparai bridge, were so fixed as to exclude the whole of the site now in dispute; and so far as appears no objection whatever was raised to this demarcation. This is a point of the utmost importance.

10. If the plaintiffs then set up title to the site in dispute, it is impossible to understand why no objection was raised to a demarcation which visibly excluded the site from the temple premises.

11. We shall now proceed to deal with the evidence of possession by the plaintiffs of the various items of the suit property.

(A) The Subordinate Judge finds that all the disputed sites lying to the west of the river bad (Nos. 4 and 5) belong to the temple, which has acquired a right of absolute ownership to them by immemorial user; and in this, we have no hesitation in concurring. In fact the Government Pleader has practically nothing to say against it. The evidence fully warrants the conclusion that the Sandhyavandana mantapam with the courtyard, in which it stands, was originally constructed by the temple authorities, and that from time immemorial it has been used by them as part of the temple premises for Brahmins to recite the Sandhyavandanam prayer after bathing, Item No. 4 was formerly occupied by the Kasilingaswami shrine which was an appurtenance of the main temple and under control of the trustees. It existed from time immemorial till it was washed away with the idol in the great flood of 1891, The materials of the shrine were subsequently used by the temple authorities for constructing a pavement on the open space adjoining the Sandhyavandana mantapam and for other purposes. This portion of the plaint property is clearly disunited by the river and the foot of the hill, and the Subordinate Judge's inclusion of the whole site west of the river bed in his award to the temple is justified.

(C) The case of the Tirthavari mantapam (No, 6) is very similar to that of the Sandhyavandana mantapam (No. 5). The only difference is that there is the evidence of the Rev. Thomas Kimber to show that it was at one time used by European bathers as a dressing shad. This practice was discontinued more than 30 years ago, when separate bathing sheds were constructed, and in our opinion must be regarded as having been merely permissive. There is no reason to disturb the Subordinate Judge's finding regarding this mantapam.

(E) The next item for consideration is the pool itself (item No. 2). This is situated at the very foot of the falls, and has been hollowed out of the natural rocky bed of the river partly by the action of the water, and partly by blasting (vide exhibit XVIII-e). Forming, as it does, a portion of the bed of the river, particularly strong evidence should be required to establish either a grant by the zamindar, or the acquisition of a title on the part of the temple authorities by adverse possession; and such evidence is, in our opinion, not forthcoming. Great reliance is placed by the plaintiffs on certain extracts from old temple accounts, produced to show that the temple authorities were in the habit of annually leasing out the right to collect 'finds in the pool,' that is, any articles of value which may have been dropped or thrown into it by the numerous bathers. The Subordinate Judge has accepted these accounts (exhibit A series) as genuine, in which he is no doubt correct; but it is extremely difficult to say what the entries refer to. They relate to five faslis, between 1809 and 1840, and merely record leases of the 'pool' or the 'aruvi (falls) pool' for various sums. There appears to be no evidence to explain what they mean, or whether the explanation offered to the Subordinate Judge is correct. So far as appears no such leases of 'finds' have been held for the last 60 years. Apart from these accounts, there is absolutely nothing to support the temple's claim beyond the fact that the idol has been daily taken to the pool and solemnly bathed there; but it is impossible to treat this as evidence of possession, or of any form of title. Against it we have the admitted fact that as far back as can be traced Europeans and also respectable Muhammadans have been in the habit of bathing in the pool while low-caste Hindus have been excluded by magisterial orders of the District Magistrate (exhibits O and O-l) issued at the request of the temple authorities. The European residents of the district, as well as visitors, have not only bathed in the pool, but have annually formed a bathing committee and & have collected and expended money on cleaning, deepening, and improving the pool and in erecting bathing sheds near it. Similar improvements, such as the erection of iron hand-rails, have been carried out by the temple; but it is as difficult to reconcile the long acquiescence of the temple trustees in the above act with the present theory of a lost grant of the pool, as it is to treat their possession as exclusive. It is in evidence that arrangements were made and adhered to in a friendly spirit for the convenience of all parties, the Europeans having the exclusive use of the pool for two hours every morning fixed so as not to clash with temple worship, while on specially sacred days, they refrained from bathing at all. But such a sensible arrangement is no evidence of exclusive possession or recognition of title of either party. Special reference may be made to one incident in 1873 evidenced by exhibit XVIII-c. In that year, by the Collector's orders Rs. 100 were spent out of the 'waterfall fund' which was raised by subscription among bathers, on enlarging the bed of the pool by blasting during the dry season. We think it may be safely held that the acquiescence of the temple trustees in such a proceeding shows that any enjoyment of the pool exercised by them at the time was not exercised with any consciousness of ownership, or intention of asserting ownership. The issue of the orders above referred to, exhibits 0 and 0-1, in no way supports the plaintiffs case. Such orders must have been issued in the interests of the public peace and tranquility rather than for the protection of proprietary claims, which could have been otherwise enforced. In fact although the claims of different classes to bathe in the pool appear to have given rise to friction on several occasions, we can find no record of any assertion of ownership on the part of the temple trustees up to the time of institution of the present suit. We are of opinion that the plaintiffs' claim to ownership of the pool has not been established. A reference to exhibit 0-2 will indicate the spirit in which the aid of Government officers was invoked in the matter; the petitions giving rise to that order having apparently emanated not from the temple trustees alone, but from them together with 'other ryots.'

(D) The same decision must be arrived at in the case of what the Subordinate Judge describes as the site of the foot of the waterfall.

(F) The lower portion of the steep rooky side of the hill over which the water falls has been decorated at some unknown time with 'Sivalingams' carved in relief, which are now deemed sacred, and are the object of worship by the votaries of the temple: but it is impossible to treat this by itself as evidence of ownership on the part of the temple.

(B) There remains only the bridge which crosses the river, and forms the most convenient access to the falls. The present bridge was constructed in 1892, replacing a former structure which was partially destroyed in the same flood which washed away the Kasilingaswami and its shrine. Exhibit G-1 shows that it was constructed by the Local Fund Engineer under orders of the Shermadevi Taluk Board, which allotted Rs. 340 for the purpose from its reserve fund. At the same time the temple authorities were asked 'to contribute a share if possible'--a very natural course to adopt considering how keenly interested the temple was in the speedy repair of the bridge. This request gave rise to an interesting correspondence between the temple trustees and the Siva Temple Committee for the Tinnevelly district {vide exhibits G and G-2). On receipt of copy of the Taluk Board's resolution, the trustees addressed exhibit G to the Committee. In this they stated that, as the said bridge (meaning the former bridge) had always been under the control of the temple and chiefly useful to the temple, they had submitted an estimate for reconstructing it from temple funds (exhibit F-2), but had not obtained sanction. Meantime the Taluk Board had set the work in hand. They therefore recommend that the Taluk Board's request for a contribution should be complied with and one-third of the cost allotted. The letter proceeds thus:Further, as the said bridge has always been in the private control chiefly of the people and the temple there would be ground for the temple to have a greater right than the one which it naturally has, if a third portion were paid....

12. The District Committee replied taking a much stronger line and enquired: 'While this bridge and those places belong absolutely to the temple and while it is proper that that bridge-should be constructed out of the temple funds, what was the reason for allowing it to be built from Local Funds?' To this, in exhibit G-2, the trustees replied, as might be expected, acquiescing in the view of the District Committee; and it was then resolved that 'the full amount should be paid.' This was on the 3rd July 1893, No farther correspondence is exhibited, from which it may be fairly inferred either that no further steps were taken to pay the amount, or that the offer was rejected by the Taluk Board. It seems quite certain that no actual payment was made from temple funds; and as it is presumably in the power of the Temple Committee to produce the subsequent correspondence if there were any, it may be assumed that their failure to do so is due to the fact that it would not support their case. Altogether the correspondence and the course of events, while indicative of a desire on the part of both the trustees and the Committee to assert ownership to the bridge, in no way tends to support their claim; while the artless admissions of the trustees in exhibit G above quoted go strongly against it.

13. As to the repair and maintenance of the previous bridge or bridges, the evidence is conflicting Probably both the Temple and the Waterfall Committee incurred expenditure on the bridge from time to time. Exhibit B series shows that on several occasions between 1834 and 1840, when the temple was under the management of the revenue authorities, the bridge was repaired at the cost of temple funds; and it seems probable that in later times also the temple, being keenly interested, contributed to similar works. On the other hand exhibits XVIII and XVlII-a show clearly that repairs to the bridge were conducted from the waterfall fund under the Collector's orders in 1870 and 1873. Viewing the whole of the evidence we have no hesitation in finding that the plaintiffs' claim to the present bridge, which was admittedly constructed from Local funds, has not been established.

14. The plaintiffs' claim of ownership to the remaining portions to the plaint property was rejected by the Subordinate Judge and, in our opinion, quite rightly. It rests on nothing better than a certain amount of oral evidence to the effect that the temple servants and the pilgrims used to collect firewood on the slopes of the hills. This is very unsatisfactory; and exhibit XVII shows that in 1897 the temple trustees petitioned the Collector simply to allow them a right of way up the hill through this very land, without any suggestion of ownership.

15. From the above it will be seen that in our opinion, apart from all question of forest reservation, the plaintiffs have established their ownership only of the portion of the site west of the river bed(A), and the Tirthavari mantapam and its verandahs (C) and not to the remainder of the plaint property. The right of carrying on daily-puja at the falls and Tirthavari mantapam and the right of way from the bridge to the falls and the Pongumakadal are established and were rightly allowed in the decree.

16. We have now to determine to what extent, if any, the above rights have been affected by the process of forest reservation.

17. According to defendant, the whole of the disputed site is included in the reserved forest, Tenkasi block No. III, which was originally ordered to be reserved (prior to the introduction of the Forest Act) by GO No. 257, Revenue, dated the 1.1 th February 1881, and notified under Section 25 of the Forest Act by G.Q. No. 1611, Ravenue (Forest No. 142), dated the 20th December 1883. These orders are exhibits IV and V; and it is argued that the effect of the latter was finally to extinguish all preexisting rights in the reserved forest, which had not been admitted by Government prior to reservation. Admittedly no part of the present (suit) claim had been admitted, or even set up at the time of reservation.

18. The plaintiffs contend (a) that the plaint property falls outside the boundaries of the reserved forest; (6) that oven if it be included therein, the notification under Section 25 has no effect on pre-existing rights.

19. For the above reasons we are satisfied that the boundary of the reserved forest runs as stated by the defendant, and that the whole of the disputes site is included within it.

20. It remains to determine the effect; of the reservation on the right which the plaintiffs possessed in the property in dispute at the time when the reservation was notified, under, Section 25 of the Act.

21. The learned vakil for the plaintiffs argues that extinction of private rights in a reserved forest is only effected by the operation of Section 17 of' the Forest Act; which in its turn only takes effect; when the procedure laid down in Section 6 and following sections for inviting and enquiring into claims has been followed, We cannot accept this contention; Section 25 of the Act is no doubt, a very drastic provision of law: but its intention, in our opinion, is to place all forests reserved by executive order prior to the introduction of the Act on precisely the same footing as reserves subsequently constituted in accordance with the provisions of the same. The provision in paragraph 1 of the section that a forest which has been reserved before the Act shall be a reserved forest under the. Act and the last paragraph of the section, in our opinion, show that the intention was that the notification under Section 25 should operate in exactly the same manner as one under Section 16, to which Section 17 is a mere corollary. As pointed out by the Government Pleader, the continued existence in a reserved forest of rights which have not been admitted and registered after enquiry is incompatible with the intention and general scope of the. Act.

22. No doubt provision is made- in Section 25 for further enquiry being held into private rights, where Government' deems it' desirable; but the wording of the proviso unmistakably indicates that this is purely discretionary with Government; and the undoubted fact that in this case Government did not order further enquiry must be taken to show that Government did not regard the previous enquiry as insufficient.

23. It might be suggested, though the point was not taken by the plain-tiffs' vakil, that the order dated the 11th February 1881. (exhibit IV) does not amount to a final order of reservation. We have carefully considered this point, admitting, as additional exhibits for the purpose, the two Government Orders referred to at the commencement of the Forest Committee's report and have decided: that the argument is not really maintainable. Paragraph 17 of G.O. No. 1612, dated - the 2nd' August: 1879, certainly seems to imply that Government at the time of its issue contemplated, that, in future cases, a final notification should issue after survey and demarcation. But the issue of such an additional order would seem to have been in the discretion of Government. There does not appear to have been any legal obligation on Government to issue a further notification, and the fact that no further notification was issued does not, in our opinion, prevent the Government Order of the- 11th February 1881, from operating as a reservation for the purposes of section '25 of the Act; Exhibit II merely directs demarcation and survey in accordance with the earlier Government Order, without adding a word regarding the issue of any further notification. When issuing the order under Section 25 (exhibit V) Government certainly treated G.O. No. 257, dated the 11th February 1881, as if it were a final order of reservation: and there seems to be no reason to hold that it was not so intended at the time of its issue.

24. One further point remains for consideration and it is a point of great importance and one which is not free from difficulty.

25. Under Section 3 of the Act, the Governor in Council may constitute any land at the disposal of Government a reserved forest and by Section 2 of the Act, land at the disposal of Government is defined as including 'all unoccupied land whether assessed or unassessed.'

26. The Government Pleader conceded, as we understood him, that, when the reservation was made, or, at any rate, when the suit was brought, the plaintiffs had exclusive possession of the site marked No. 5, the site marked No 4, and the pavement between sites' Nos. 5 and 8 in the plan P. The question therefore arises, were these sites unoccupied land within the meaning of the Act when the reservation was made, and if they were not, is it open to the plaintiff's in this suit to set up a title to the land in question. The Subordinate Judge deals with this question in paragraphs Nos. 56 to 53 of his judgment (although, in the view he took on the question of the extent of the land reserved, it was not necessary for him to consider it). The learned Judge was of opinion that the question was governed by the principle of law which was the ground of the decision in Ramachandra v. The Secretary of State for India I.L.R. (1889) Mad. 105. [See too Subrahmanian Asari v. The Secretary of State for India (1907) 17 M.L.J. 557]. We doubt if this is so. In Ramaahandra v. The Secretary of State for India I.L.R. (1889) Mad. 105 the reservation was made under Section 16 of the Act, and the Act itself provides the mode of redress given to a party who deems himself to be injured. The proviso to Section 25 can scarcely be said to give to a party a mode of redress by way of further inquiry since it is left entirely to the discretion of Government to say whether there shall be a further inquiry or not. But, as we have pointed out, Section 25 is a very drastic enactment. Its object would seem to have been to give legislative sanction to any forest reservation made by Government before the Act in all cases in which Government thought fit to exercise the powers given by Section 25, and by so doing to prevent the question of the legality of any forest reservation which purported to have been made under the executive powers of Government, or under any prior legislative enactment, from being raised. An enactment of this sort must of course be construed strictly [se e, for example, the judgment of Lord Blackburn in Metropolitan Asylum District v. Hill (1881) 6 A.C. 193], but the words of the enactment in question seem clear. We do not think it necessary to discuss the case of Balvant Ramachandra Nath v. The Secretary of State for India I.L.R. (1905) Bom. 480. In that case the reservation had been made under the Act, and further, as the Judges point out on page 508 of the report, the decision was under the Indian Forest Act which was earlier in date to the Madras Act, and it is only reasonable to assume that all departures in the local Act from the language of the earlier enactment were advisedly made and indicate some material difference in the intention of the local Legislature that made them.

27. It is not necessary for us to decide whether a notification under Section 25 is in all cases conclusive on the question whether lands comprised in the reservation made before the Act came into force were lands at the disposal of Government at the time the original reservation was made. The Subordinate Judge finds in paragraph 57 of his judgment that, on the grounds given in paragraph 56, the Forest Committee though not trarumelled by the provisions of the Act was bound to carry on its duty in accordance with the requirements of justice and fairness, and has done so. We see no reason to differ from this conclusion. This being so, we are of opinion that the fact, which we have held to be established, that the whole of the land in question was included in the reservation made by Government before the Act came into force is a good defence to the plaintiffs' claim.

28. We are therefore constrained to hold that She rights, if any, which the plaintiffs possessed in the plaint property at the time of the reservation in 1881 were extinguished by the notification, exhibit VI, published in January 1884. We do so with reluctance, as it seems probable that the omission of the temple trustees to come forward at the time of the enquiry by the Forest Committee in 1881 was due to ignorance of the extent to which their rights would be affected, If they had represented their claims to the mantapams and to the right of access to the falls for purposes of bathing and worship, it may well be that they would have been admitted. Even in contesting the present suit, Government has declared its willingness to safeguard any customary right not only of the: temple, but of the public as well; and we do not imagine that Government will consider it its duty: to adopt a different attitude in the future from what it has maintained in the past. The plaintiffs seem: to have embarked on the present suit without making any attempt; beyond the notice prescribed by law, to secure recognition of the rights, they claimed by representations: to Government or its responsible- officers Such, at least, is the statement of the Government Pleader which is not contradicted on the other side.

29. The plaintiffs' suit must therefore be dismissed with costs in both courts; the appeal preferred by Government (Appeal Suit No. 153 of 1906) being allowed with costs.

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