(1) This second appeal arises out of the dispute between Sri Kalugachalamurthi Devastanam, represented by its hereditary trustee, the ex-Zamindar of Ettayapuram on the one hand and the Panchayat Board of Kalugumalai and the State of Madras on the other in respect of patches of lands surrounding the shrine of Sri Kalugachalamurthi at Kalugumalai village. The devastanam filed the suit O. S. No. 21 of 1952 on the file of the Subordinate Judge's court, Tuticorin, against the Panchayat Board Kalugumalai seeking relief for a declaration that the streets and open spaces in the village of Kalugumalai were the absolute private property of Sri Kalugachalamurthi temple and for a permanent injunction restraining the Panchayat Board from interfering in any manner with the said street and open spaces and for other reliefs. On objection being raised by the Panchayat Board that the State of Madras was a necessary party, and that the suit was bad for non-joinder the State came to be impleaded by the plaintiff Devastanam as the second defendant in the suit. The plaint was amended and the relief. were sought against both the defendants.
The Devastanam claimed to be the absolute owner with full proprietary rights in all the streets, roads and open spaces in the village of Kalugumalai lying in the vicinity of the temple, and that the defendants had no manner of right to interfere with those streets and open spaces affecting the enjoyment and user of the devastanam. The defendants denied that the devastanam had any proprietary right in the streets and open spaces and contended that they were public streets which vested in the Panchayat Board of Kalugumalai under the Panchayat Act. The defendants further pleaded that after the abolition and taking over of the zamin of Ettayapuram, of which the village of Kalugumalai formed part under Madras Act 26 of 1948 all the streets, roads and open spaces ill respect of which the Devastanam claimed rights vested in the State Government and that therefore the devastanam had no right to sue.
(2) The schedule attached to the plaint in O. S. No. 21 of 1952 described the suit property as being an area of an extent of 125 acres in S. No. 201/A and S. No. 203 in Kalugumalai village. In I. A. No. 130 of 1955 on the file of the Sub Court, Tuticorin, the devastanam sought permission to withdraw the suit in respect of portions of the plaint mentioned property except the streets, the west car street, the south car street, the east car street, the giri prakaram road and the nadu street. The trial court granted this permission by its order in the interlocutory application dated 29-3-1955. By another order of the trial court in the application I. A. No. 130 of 1955, S. No. 203 also became excluded from the compass of the suit. All the streets above mentioned lie within S No. 201/A.
(3) The material issues framed at the trial of the suit are as follows:
Issue 2 Whether the suit is bad in view of the provisions of the Zamin Abolition Act and. Temple Entry Act?
Issue 19: Whether the suit properties vest in the 2nd defendant under S. 3 of the Madras Act 26 of 1948?
Issue 4: Whether the suit is barred by the provisions of the Madras Village, Panchayats Act of 1950 and the provisions of the Local Boards Act. It is unnecessary to refer to the other issues as they are not relevant for the disposal of this second appeal.
(4) The learned Subordinate Judge of Tuticorin who tried the suit found on issues 2 and 19 that the Devastanam was not entitled to the declaration that they were the absolute owners of the suit properties and that in view of the Madras Estates Abolition Act, the suit properties except the spaces included between the two gates as shown in the Commissioner's plan, B. 1, B. 2 vested in the State Government. On issue 4 the learned Subordinate Judge found that except the portion of the street between the two gates the other four streets vested in the Panchayat Board, under the provisions of the Madras Village Panchayats Act (Act X of 1950). Accordingly a decree was passed in favour of the devastanam for declaration and injunction in respect of the portion between B. 1, B. 2 marked in the Commissioner's plan, Ex. B. 1(a) which was attached to the decree.
(5) The Devastanam preferred an appeal, A. S. No. 75 of 1955 on the file of the District Court, Tirunelveli, dissatisfied with the partial decree granted by the trial court in their favour, and the Panchayat Board filed a memorandum of cross objections objecting to the relief granted in respect of the portion between B. 1, B. 2 in. the Commissioner's plan. The appeal and the memorandum of cross objections were transferred from the file of the District Court Tirunelveli, to the file of the Court of the District Judge, Ramanathapuram, at Madurai, as per order of this court in R. Dis. 774/1955 dated 9-8-1955. The learned District Judge found that except for the portion B. 1 and B 2 the other properties vested in the State of' Madras after the notification under the Abolition Act, that the portion B. 1, B. 2 was appurtenant to the temple building and part of the temple itself and was therefore within the ambit of S. 18(4) of the Madras Estates Abolition Act and accordingly, dismissed both the appeal and the memorandum of cross-objections.
(6) The second appeal was heard in the first instance by Rajagopala Aiyangar J. as he then was, and he was of opinion that the courts below had not focussed their attention properly on the question, whether the streets and open spaces were dedicated to the public so as to extinguish the title of the devastanam in regard thereto. The learned Judge therefore called for a finding from the trial court on the question whether the streets, other than B. 1, B. 2 in the Commissioner's plan are public streets or not. The parties were given liberty to adduce fresh evidence in the matter. The Sub Court of Tuticorin has now submitted a finding that the streets are not public streets, as there is no proof of dedication to the public by the owner of the property at any time. After the return of the finding the second appeal was heard by one of us and the case was referred to a Division Bench in view of the large stakes involved in the suit, and the importance of the questions of fact and law raised by the parties.
(7) It will be convenient at the very outset to make clear the present position of the village of Kalugumalai after the advent of the Madras Estates Abolition Act. The zamin estate of Ettayapuram was notified by the State Government on 3-10-1951 and taken over by the State on 26-9-1954, under the Abolition Act. An extent of about 878-25 acres of land in the village of Kalugumalai comprised in the erstwhile zamin of Ettayapuram was granted as an inam by the holder of the zamin to Sri Kalugachalamurthi temple of which the hereditary trustee was no other than the zamindar himself. The village of Kalugumalai was not separately notified under the Act. The contention of the Devastanam that it was an under-tenure estate requiring separate notification before it could be taken over by the State under the Act was repelled by this court in dismissing W. P. No. 145 of 1957. Rajagopala Aiyangar J. held in that writ petition that the grant to the devastanam was only a minor inam, and that the notification of the Ettayapuram as an estate ipso facto vested the inam in the State. The learned Judge definitely held that the Kalugumalai village was not an under-tenure estate requiring a separate notification. as a condition precedent to its being taken over by the State. This legal position emerging from the Applicability of the Act to the Ettayapuram zamin has now become incontrovertibly final.
(8) The right of the Devastanam in regard to B. 1, B. 2 in the Commissioner's plan is no longer in dispute, as there is no memorandum of cross-objections by the Panchayat Board or the State in this second appeal. The only question that arises for consideration is whether the Devastanam can maintain the suit and claim any reliefs in regard to the subject matter of the suit other than B. 1, B. 2.
(9) Ex. B. 1(a) is the Commissioner's plan. The letter A denotes the temple proper. The letter B is a street just in front of the temple. The West car street is denoted by the letter D. In that street the premises D. 4 locates the local fund hospital. There is also a cart stand (vandipettai), D. 5 in that street. The letter G denotes the South car street. In this street there is the police station, F, a group of Christian houses, letter H and the office of the Electricity Department, letter J. The eastern car street is denoted by the letter K. That street locates a big market K. 1. A cluster of Harijan houses, letter I, a Roman Catholic church, letter N. 1, the Panchayat Board office, Letter N. There is a grave yard denoted by the letter Q for which access is provided from the East Car Street.
(10) The Commissioner was examined in court after the matter was remitted to the trial court, for recording the finding. He deposed that in some of the streets there are balipeetams that in the East Car Street and the West Car Street, there, are no public shops. Having regard to the fact that there are many public places like hospital, market, police station etc., abutting the streets it has to be conceded that the public at large of all castes, and communities pass and repass along these streets. On behalf of the respondents these features in the topography of the area are strongly relied upon as constituting evidence of the public character of the streets. According to the evidence of P.W. 1, the Peishkar employed under the devastanam, the general public have no right in the four streets for taking procession., nor have they any right of way over them. There is evidence to show that the devastanam utilised its funds for repairing the roads, that they auctioned street margins on special festival occasions for erecting temporary shops, that they levied special fee by way of penalty against persons encroaching on the streets by putting up construction thereon, that they have been making sanitary arrangements to keep the streets in hygienic condition, that they auctioned rubbish collected from the streets, that the officers of the Health department only addressed them on festival occasions. This evidence establishes a proprietary control of the devastanam over the streets.
(11) There is one important piece of evidence afforded by a litigation between the devastanam on the one hand and the taluk board of Srivilliputtur comprising the Kalugumalai village and certain Nadar residents on the other in respect of the right claimed by the Nadars to take procession through the streets. The devastanani was the plaintiff in O. S. No. 284 of 1889 on the file of the District Munsif's court, Srivilliputtur, and the Nadars and the Taluk board of Srivilliputtur were the defendants. It was claimed by the devastanam that the streets A B C D E marked in the plan produced in that suit belonged to the temple as its absolute property that the defendants, Shanars or Nadars and other people inferior in caste to them had no right to take marriage or other processions along the streets, and that there-fore a decree should be passed declaring the sole right of the temple in the streets, and granting a permanent injunction prohibiting the defendants and other Shanars from talking such procession.
Ex. A. 1 is the judgment of the trial court in that suit. Para 19 of that judgment is as follows:
'I therefore declare that Kaloogachella Moorthy swami' of the Kovil of Kaloogoomalai village, is the sole owner of the streets A B C D and N mentioned in the plaint schedule and plaintiffs' plan and direct that a permanent injunction be issued prohibiting the defendants 1 to 18 and other Shanars from going in marriage and other pro-cessions through the said streets.'
The Taluk Board of Srivilliputtur was the 19th defendant in that suit. Some of the defendants ;rx the suit preferred an appeal, A. S. NO. 39 of 1890 on the file of the Sub Court, Tirunelveli, against the said judgment and decree but the decree but the trial court was affirmed. There was a second appeal to this court, S. A. No. 16-24 of 1893 by-the aggrieved defendants and a Division Bench consisting of Sri Arthur Collins C. J. and Parker J. dismissed the second appeal. In the course of the-judgment the learned Judges observed as follows:
'There can be no question of dedication prior to 1849 as the streets were only made after the Zamindar gave the village to the temple. We are of opinion that the evidence legally justified the inference drawn by the Subordinate judge that there had been no absolute dedication of the streets by the temple as public highway and that it is still within the right of the temple authorities to refuse to allow Shanar processions through those streets.'
The litigation, which culminated in the second appeal, S. A. No. 1624 of 1893, referred to above is certainly an instance where the temple asserted its rights that the highways surrounding the temple were their absolute properties, in which the public could not exercise any fight except with their leave and licence.
(12) The owner of a property can create a highway enabling the general public to pass and repass over the property by a gift or dedication to that effect. A valid dedication can however be established only by proof of a clear intention on the part of the owner to dedicate the land. In the absence of any proof of 'animus dedicandi' on the part of the owner proof of dedication wilt fail. The law does not require an express dedication by way of a grant and it is open to presume an intention of the owner to dedicate by long open user of rights of way by the public. It is a probable inference from facts proved and in a particular case it is for the Judges of fact to determine whether on the evidence adduced it can be reasonably drawn Folkstone Corporation v. Brookman, 1914 AC 338. This presumption is a rebuttable presumption and mere length of user by the public is not conclusive proof of dedication. As Baron Parke pointed out in Poole v. Huskinson, (1843) 11 M & W 827.
'In order to constitute a valid dedication to the, public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate--there must be an animus dedicandi, of which the user by the public is evidence, and no more; and a single act of the interruption by the owner is of much more weight, upon a question of intention, than many acts of enjoyment.
'It is also well to remember what was observed by the Judicial Committee in Muhammad Rustam Ali Khan v. Municipal Committee Karnal City, 47 Ind App 25: AIR 1920 PC 43, regarding the distinction between a 'grant to the public' of a right of way and the permission given to the public to visit certain places. In that case Lord Shaw observed at page 30,
'It is in cases such as the present of crucial importance to distinguish between the grant to the public as such of a right of way, and the permission which naturally flow from the use of the ground as a passage for visitors to or traders with the tenants whose shops abut upon it. In the present case it appears to their Lordships extremely doubtful whether the term 'dedication' can with propriety be applied to what took place. If the term be employed, it can only be in this sense that the dedication of the solum of the courtyard was dedication not to the public, but to the uses of the shopkeepers and their customers, the principal use being the storing and display of grain.'
Every dedication confers on the public a right of passage or occupation of the surface of the land dedicated for the purpose of passing and repassing. The soil of the land still vests, even after such dedication, only in the owner, whose right to use it in any way not inconsistent with the rights of the public created over it remains unimpaired. The dedication may involve so much of the subjacent soil as is necessary for the proper maintenance of the surface as a road or street but the owner is not divested of all his proprietary rights in the subject matter of the dedication.
(13) In the light of the above principles of law which are now well settled and on a consideration of the evidence on record which need not be reviewed in detail in this second appellate court, we agree with the finding of the learned Subordinate Judge, that the subject-matter of the suit, namely, streets still in dispute between the! parties have not been proved to have been dedicated to the public.
(14) The question still remains whether the devastanam can claim any rights in respect of the suit properties barring B. 1, B. 2 after the vesting of the Kalugumalai village in the State Government as a result of the operation of the statute, Madras Act 26 of 1948. Section 3(b) of the Act vests the entire taken over estate, including all communal lands, porombokes, waste lands, pasture lands, lanka lands, forest lands, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries in the Government and the vesting is so comprehensive and complete that it is impossible to contend that the suit lands can escape such statutory vesting. Mr. Vedantachariar, learned counsel for toe devastanam frankly conceded that the subject-matter of the suit does not lend itself to the applicability of S. 12 of the Act so as to enable the devastanam to obtain ryotwari patta. His only contention is that based on S. 18(4) of the Act. Section 18 of the Act deals with buildings in estates.
Every building within the limits of the taken over estate which belonged to the landholder immediately before the notified date and was being used by him as an office in connection with the administration of the estate vests in the Government free of all encumbrances. Every building belonging to the landholder and in the occupation of any religious, educational or charitable institution also vests in the Government free of all encumbrances. Every building other than the buildings referred to above vests in the person who owned it immediately before the notified date. In regard to this class of buildings the Government is entitled to levy appropriate assessment and to collect such amount as the person in occupation was liable to pay to the landholder. This is pro-vided for under S. 18(5) of the Act. It is common ground that the premises of the temple pro-per is governed by S. 18(4) of the Act as they belonged to the Devastanam long prior to the notified date. Indeed the State Government is not claiming any right to take over the temple itself. Section 18(5) provides that the word 'building' occurring in S. 18 includes the site on which it stands and any adjacent promises occupied as an appurtenance thereto. If the streets, roads, open spaces etc. forming the subject-matter of the suit, which no doubt surround the temple can be called appurtenances within the meaning of S. 18(5), the devastanam can succeed in. obtaining the reliefs prayed for in this suit. Otherwise the suit must fail barring, of course, B1, B2.
(15) The words 'adjacent premises occupied as an appurtenance thereto' in S. 18(5) of the Act are apt to describe any building annexed to the main building covered by S. 18(1), (2), (3) and (4) constituting part and parcel of such main building. The word 'premises' is given the following meaning in Chambers dictionary:
'A building and its adjuncts'.
The Concise Oxford dictionary gives the following meaning to that expression: 'House, building with grounds and appurtenances'. Section 18(5) lays stress upon two important aspects in giving an extended meaning to the word 'building'. The first is proximity to the main building and the second is occupation as an appurtenance to the main building. The words 'occupied as an appurtenance thereto' are of pivotal importance.
'Appurtenances' according to the Dictionary of English Law by Earl Jowitt are,
'Things belonging to another thing, as hamlets to a manor, and common of pasture, turbary, etc., liberties and services, out-houses, yards, orchards and gardens are appurtenant to a messuage, but lands cannot properly be said to be appurtenant to a messuage.'
The word 'appurtenances' is said to have a secondary meaning equivalent to 'usually occupied with'.
(16) An appurtenance to any subject-matter of a devise or grant imports nothing more than what is strictly appurtaining to it. Evans v. Angell, (1858) 26 Beav 202, Romilly M. R. at page 205),
'It is settled by the earliest authority, repeated without contradiction to the latest, that land cannot be appurtenant to land. The word 'appurtenance' includes all the incorporeal hereditaments attached to the land granted or demised such as rights-of-way, of common, or piscary, and the like, but if does not include lands in addition to that granted.'
(Lister v. Pickford, (1864) 34 Beav 576, Romilly M. R. at page 580).
The decision in Trim v. Stuvminster Rural Dt. Council, 1938-2 KB 508 is very instructive. The question for consideration in that case was the proper interpretation of the definition of house in section 188 of the Housing Act of 1936. The word is defined under the Act as including 'any appurtenance belonging thereto or usually enjoyed therewith'. At page 515 Slesser, J., observed thus:
'That word has had applied to it, through a long series of cases, mostly dealing with the meaning of the word in demises, a certain limited meaning, and it is now beyond question that, broadly speaking, nothing will pass, under a demise, by the word 'appurtenances' which would not equally pass under a conveyance of the principal subject-matter without the addition of that word, that is to say......... that the word 'appurtenances' will pass with the house, the orchard, yard, curtilage and gardens, but not the land. That view...... has never been departed from except that in certain cases it has Peen held that the word 'appurtenances' may also be competent to pass incorporeal hereditaments. Certainly no case has been cited to us in which the word 'appurtenances' has even been extended to include land as meaning a corporeal hereditament, which does not fall within the curtilage of the yard of the house itself, than is, not within the parcel of the demise of the house.'
(17) We are unable to say that streets, reads and open spaces surrounding the temple premises can at all be called appurtenances to the temple. The existence of 'balipeetams' in some of the streets cannot make them fall within the meaning of the word 'appurtenance'. In our opinion the Devastanam cannot sustain their claim founded on sections 18(4) and 18(5) of the Act.
(18) The learned Government Pleader appearing for the State of Madras contended that the Civil Court had no jurisdiction to decide the question whether the suit lands constitute appurtenances to the temple in view of section 18(6) of the Act which is as follows:
'If any question arises whether any building or land falls or does not fall within the scope of sub-sections (1), (2), (3), (4) or (5), it shall be referred to the Government whose decision shall be final, and not be liable to be questioned in any Court of law.'
The suit was instituted on 5-1-1952 but the zamin of Ettayapuram was taken over by the State Government only in 1954 during the pendency of the suit. The jurisdiction of the court to adjudicated on this question cannot be said to have been taken away by the operation of section 18(4), the applicability of which only commenced on and after the notified date, which is 26-9-1954. Whatever might have been the, position if actually the reference has been made daring the pendency of this proceeding to the Government and a decision rendered in the matter, we are of opinion that there is no legal impediment to our deciding the-question at this stage when the matter has fully argued before us. The appeal fails and is dismissed. There will however be no order as to costs in this appeal.