1. In my opinion the suit is not barred by any provision of the Madras Forest Act. The forest in question was reserved under Section 25 of that Act as one which had been reserved by order of Government previous to the day on which the Act came into force.
2. Before the Act came into force the forests were visited by a committee who took evidence on claims to various rights within the area which it was proposed to reserve and reported their opinion upon them to the Board of Revenue and the Government. Atthis enquiry claims were made on behalf of the institution now represented by the present plaintiff--a claim of a right to cut firewood free within the whole Tirukarangudi forest and a claim of a right to the free enjoyment for temple purposes of the forest at Nambikovil and for two miles westward. That is not the present claim there was no claim before the committee of any right of ownership in the forest itself (this is clear from the report) and consequently no enquiry into and no settlement or record of any such claim. And the Government Order Exhibit III does not refer to any such claim as is now made and does not decide one. In short, the claim was not raised and, therefore, was not a question decided under Section 25. And Sections 6 and 17 are not applicable so as to extinguish a right merely because it was not claimed at an enquiry by the Forest Committee. We have not been shown that the Forest Committee were authorised to decide a claim in the way the Forest Settlement Officer can decide claims under the Act, or that any intimation was given to possible claimants that rights not claimed would be extinguished. In the absence of any such notice as is now given by Section 17, it would be wrong so to apply the provisions of Section 25 as to give retrospective effect to Section 17; moreover, Section 25 would not support such a construction; it refers only to questions which have been decided, orders which have been issued or records which have been prepared and has no application to a claim which has never been made.
3. I find in these circumstances nothing in the Forest Act to bar the suit. Nor do. I think the claim is barred by limitation: it is claimed that the Government by surrounding the reserved forest with cairns and excluding cattle took effective possession of the whole area including the portion claimed by the plaintiff, but there is nothing to show that any cattle of the plaintiff were excluded or that the erection of the cairns in any way altered or disturbed the plaintiff's enjoyment of the land, whatever was the nature of that enjoyment or even that it gave notice to the plaintiff that their enjoyment was intended to be disturbed.
4. The plaintiff was, therefore, not dispossessed before 1899, and his suit for recovery of possession is not barred by limitation. If the land was not laid at the disposal of the Government there is no need for the plaintiff to get the orders of the Revenue Board set aside before suing for its recovery. They are merely administrative orders and do not decide the plaintiff's claim under the Forest Act.
5. On the merits, I am of opinion that the plaintiff is entitled to a. decree declaring his ownership of the temple tope and nandavanam of which he is now in enjoyment. In the enquiry of 1881 no mention is made of the temple site or of the, nandavanam and tope; it is not suggested that the Government treated the temple site as land at its disposal or declined to recognise the mutt's ownership thereof, and there is evidence on both sides which proves that the tope and nandavanam have been attached to the temple and tended by the temple authorities at least since 1855. The accounts of that year which were laid before the Collector in 1896 and were apparently accepted by him as genuine refer to the tope as then existing.
6. That being so it would lie on the defendant to show that the temple had not acquired the ownership of the tope and nanadavanam by actual possession for sixty years, or that the possession of the site and tope is by license or other permission of the Government and no attempt has been made to show either.
7. As regards the forest land claimed, the evidence is very different. A claim in regard to this land was made in 1881 but it was not a claim to rights of ownership. The contention that it was intended to be such a claim is not supported by any evidence and, on the other hand, the reports of the Forest Committee indicate clearly enough that no claim to any 'private forest' was made on behalf of the mutt. If the mutt had really made use of the forest adversely to the Government, had been asserting a right to exclude the Government from the possession thereof, there can be no possible doubt that the claim would have been made before the Forest Committee. For much the same reason I am entirely unable to accept the evidence that from time immemorial the portion of the forest now claimed has been demarcated by means of certain marks cut on stones. If that were so it is to the last degree improbable that no claim would have been made to that area in 1881.
8. What was claimed was a right to free enjoyment of the forest for temple purposes for two miles west of the temple and there is no evidence that the area now claimed extends to that distance. I am, therefore, unable to accept the evidence that the marks on the stones represent an ancient boundary line. If any of them are old, they are probably not boundary marks at all and if any of them were cut as boundary marks, they have been fabricated for the purpose of this claim. I must also reject the counter-parts of leases (Ex. D series) produced for the first time in this suit and the cadjan accounts which were not produced before the Collector in 1896. All this may easily be evidence provided for the suit after the Collector refused to admit the claim and cannot possibly be relied on. The accounts are not proved by any satisfactory evidence, and were they really old documents, would certainly have been used to support the claim made in 1893. There is no evidence that they could not then be found. The accounts which were placed before the Collector and which I am, therefore, not prepared to reject, showed nothing as to any user of the forest apart from the tope before the year 1888. After that there are some sales of firewood but whether those sales of firewood were merely sales to pilgrims visiting the shrine or represent permission given to other persons to cut firewood within a certain area, there is nothing in the accounts to show. It is, of course, most probable that the men in charge of the temple made use of the forest for any purpose of the temple which it could serve. Before reservation there was nothing to prevent such use and after reservation it is, as the Government pleader points out, likely that such user would not be interfered with so long as it did not extend to the felling of timber for sale. And there is no evidence of any value that any timber other than that which might come from the tope was ever felled for sale or sold to be felled.
9. Such user as cutting firewood is not strong evidence of any claim against the owner of a large and remote tract of forest and was not made the basis of any claim to ownership in 1881.
10. If it had not commenced before that, it is, of course, useless as a method of acquiring ownership against the Government and if it had, it is clear from the absence of a claim that it was not considered to give anything more than a right of the nature of an easement. The evidence, therefore, does not show that the ownership of any portion of the Forest has been acquired by the plaintiff. Exhibit H is relied on as an admission of ownership, but there is no evidence to explain that document and it is not clear whether it relates to the area in dispute or to some; other waste lands (kadugal) attached to the mutt. It is also not shown under what circumstances or what authority the document was written. It is impossible, therefore, to accept it as evidence of ownership in the plaintiff.
11. In this state of the evidence I would modify, the decree of the Subordinate Judge and declare the plaintiff's title to the tope and nandavanam attached to the temple to an extent of two acres as stated in Exhibit Q and decree possession thereof and dismiss the claim for recovery of possession of forest land and I. would direct that each party pay its own costs throughout.
12. On the merits I agree with my learned brother. Whatever may have been the effect of the notification under Section 25 of the Forest Act, so far as land to which it applied was concerned, I am far from satisfied that the notification was ever intended to apply to the tope and nandavanam which were in the immediate vicinity of the temple, were in many ways necessary to it, and had even before 1881 been long maintained by the temple authorities. Had there been any idea of including those in the reserve, it is impossible to believe that the temple authorities would have made no definite claim to them and that there would have been no express reference to them in the Forest Committee's report.
13. The temple itself is manifestly excluded from the reserve and in the absence of strict proof to the contrary, I think the tope and the nandavanam, which were so intimately connected with the temple, were also excluded. I, therefore, agree to the decree proposed by my learned brother.