State of T.N. vs Arulmighu Kallalagar Thirukoil

Periya Jeer Swamigal Mutt, Tirupati and five others

(hereinafter referred to as “devotees”) filed O.S.No.178 of

1982 in the Court of Subordinate Judge, Madurai for a

declaration that the entire forest area in Alagar Hills belongs

1 | Page to Sri Arulmighu Kallalagar also called Sri Sundarajasami or

Sundara Bahu or Paramasamy, the Presiding Deity of the

Respondent-temple. A consequential relief of possession of

the said forest area was also sought. O.S. No.171 of 1987

was filed by Arulmigu Kallalagar Thirukoil Alagar Koil (for

short “the Respondent”) in the Court of Subordinate Judge,

Madurai for a direction to the Government of Tamil Nadu (for

short “the Appellant”) to deliver possession of the schedule

mentioned property i.e. Alagar hills. Relief of permanent

injunction restraining the Defendant i.e. the Appellant-herein

and the Chief Conservator of Forest Department from

disturbing the underground water reserves by digging wells

or in any other manner was also sought. The schedule

mentioned property is to an extent of 15,838.4 acres at

Sellappa Naickenpatti Village. O.S. No.171 of 1987 filed by

the Respondent, was dismissed by a judgment dated

14.03.1988 and O.S. No.178 of 1982 filed by the devotees

was dismissed on 28.09.1995. The Appeals filed against the

judgments of the trial Court were allowed by the High Court

of Judicature at Madras vide judgment dated 27.06.2003.

Aggrieved by the judgment, the Appellant approached this

Court by filing the above Appeals.

2 | Page

2. In O.S. No.178 of 1982 filed by the devotees, it was

averred that the entire Alagar Malai was the property of Lord

Sri Kallalagar. The devotees further pleaded that from the

historical records and Sthalapurana that the Government

which was in management of the temple handed over the

temple to the Manager or the temple Committee members

but failed to hand over the forest area which is the subject

matter of the dispute. The devotees contended that the

provisions of the Madras Forest Act, 1882 (for short “the

Act”) were not complied with before declaring Alagar Hills as

a reserved forest. Claiming themselves to be members of

the Vaishnava Community who are deeply interested in the

preservation of the entire Alagarmalai as the property of

Lord Sri Arulmighu Kallalagar, the devotees filed a

comprehensive suit for declaration of title.

3. The Appellant filed a written statement contending that

the entirety of Alagar Hills belongs to the Government.

According to the Appellant, Alagar Hills have been classified

as reserved forest by the Government Notification No.187

dated 11.10.1883. It was argued that the entire suit

3 | Page schedule property i.e. Alagar Hills was in possession, control

and management of the Forest Department.

4. The trial Court dismissed the suit filed by the

Respondent by holding that no evidence was produced to

show that the suit property belonged to the Respondent-

temple. The contention of the Government that the suit

property was declared as a reserved forest in 1881 was

accepted by the trial Court. The Notification dated

11.10.1883 under Section 25 of the Act was relied upon by

the trial Court to hold that the Respondent-temple cannot

claim any right over the forest land on Alagar Hills.

5. The suit filed by the devotees was also dismissed by

the trial Court on the ground that the Notification dated

11.10.1883 under Section 25 of the Act was valid and it was

issued after following the procedure prescribed by the Act.

The trial Court also held that no evidence has been produced

by the devotees to show that the temple had any right over

the Alagar Hills. As the issue was substantially the same as

that in O.S. No.171 of 1987, the trial Court held that O.S.

No.178 of 1982 is hit by res judicata.

4 | Page

6. The High Court heard the Appeals filed against the two

judgments of the trial Court together and disposed them of

by a common judgment. The High Court framed the

following questions for determination:

“1. Whether Azhagar Hills belong to Azhagar

Temple?

2. Whether they were in the possession and

management of the first defendant Government in

their capacity as trustee and therefore, Section 10

of the Limitation Act would apply?

3. Whether the Government Order dated

11.10.1883 had been properly issued or is illegal

and invalid for non observance of the provisions of

the Tamil Nadu Forest Act, 1882? ”

7. The Applications filed by the Respondent under Order

41 Rule 27 of the Civil Procedure Code, 1908 (CPC) were

allowed and the documents produced by the Respondent

were marked as Exhibit A-46 to A-56. While referring to

Section 25 of the Act, the High Court held that there is no

order of reservation as contemplated in Section 25 of the

Act. It was further observed by the High Court that the

5 | Page procedure prescribed under Sections 6 and 8 of the Act was

not complied with. The Notification dated 11.10.1883 under

Section 25 of the Act was held to be illegal and void. It was

held that the suits were not barred by limitation as Section

10 of the Act would apply. The submission that the

Appellant had willfully suppressed material documents and

so the presumption of lost grant arises, was accepted by the

High Court. Being of the opinion that adequate material has

been produced by the Respondent-temple to prove its title of

the temple over Alagar Hills, the High Court held that the

Respondent was entitled to succeed. The entire land in

Alagar Hills which was hitherto being treated as a reserved

forest was directed to be reverted to the Respondent-

temple.

8. We have heard Mr. Balaji Srinivasan, learned Additional

Advocate General for the State of Tamil Nadu, Mr. Mohan

Parasaran, learned Senior Counsel for the Respondent-

temple and Mr. V. Ramasubramanian, learned counsel for the

devotees.

9. It is the case of the Respondent that the entire land in

Alagar Hills belongs to the temple. The Appellant denied the

6 | Page title of the Respondent over the Alagar Hills. According to

the Appellant, Alagar Hills Reserved Forest was notified by

Notification No.187 of 11.10.1883. Merely because a temple

was situated at the foothill of the Alagar Hills, the

Respondent cannot claim title or possession over the

reserved forest. According to the Appellant, all the grazing

land and other leases, revenue and expenditure in the

Alagar Hills Reserved Forest have been under the control of

the Forest Department.

10. It is not necessary for us to delve into the events prior

to 1881 for the purpose of determining the controversy in

this case. We proceed to examine the material on record.

The first document of relevance is Proceeding No.85 dated

20.01.1881 of the Board of Revenue. The Conservator of

Forests, Colonel R.H. Beddome inspected the forest tracks

and found that the area of the hills and forest in Madura

Forest Division was 1,098 sq. miles. An area of 305.48 sq.

miles was selected for reservation. Alagarmalai having an

area of 20.37 sq. miles was included in the proposed

reserves. The recommendation of the Conservator of

Forests was sent to the Superintendent of Revenue Survey

7 | Page by the Board of Revenue to prepare the outline map as

suggested by the Conservator of Forests. By Proceeding

No.626 dated 09.04.1881, the Board of Revenue proposed

20.37 sq. miles of Alagarmalai, “all Government property

and hill tracks” to be reserved for climatic reasons as well as

for fuel demands of the future. By an Order No.1284 dated

29.08.1881, the proposal made by the Committee to reserve

305.48 sq. miles in Madura District was approved. The

statement showing the area of reserves in Madura District is

annexed therewith, which includes Alagarmalai.

11. The Madras Forest Act, 1882 was promulgated for the

protection and management of forests in the Presidency of

Madras which came into efect on 01.01.1883. A Notification

was issued on 13.11.1883 under Section 25 of the Act,

declaring the blocks of forests described in the schedule

thereto as reserved forests. Alagarmalai is found at Serial

No.XXI. At this point, it is relevant to refer to Section 25 of

the Act which is as follows:

“ 25. The "Government may, by notification4 in the

3 (Official Gazette) declare any forest which has

been reserved by order of the Government

8 | Page previous to the day on which this Act comes into

force to be a reserved forest under this Act:

Provided that if the rights of the Government or of

private persons to or over any land or forest

produce in such forest have not been inquired into,

settled and recorded in manner which the

Government thinks sufficient, the same shall be

inquired into settled and recorded in the manner

provided by this Act for reserved forest, before the

date on which the notification declaring the forest

to be reserved takes efect.

All questions decided, orders issued and records

prepared in connection with the reservation of such

forest shall be deemed to have been decided,

issued and prepared hereunder, and the provisions

of this Act relating to reserved forest. shall apply to

such forests.”

12. For a better understanding of Section 25, it is

necessary to refer to the other relevant provisions of the Act.

Section 3 of the Act empowers the Government to constitute

9 | Page a reserved forest. Section 4 provides that a notification shall

be published by the Government in the Official Gazette of

the district whenever it is proposed to constitute any land as

reserved forest by specifying the details of such land.

According to Section 6, the Forest Settlement Officer shall

publish a proclamation after issuing the notification under

Section 4 specifying the particulars of the property and

fixing the time for receiving objections from interested

persons. Section 16 of the Act postulates issuance of a

notification declaring the forest as reserved after disposal of

the claims pursuant to the proclamation under Section 6,

specifying the limitations of the forests which are intended

to be reserved from a date to be fixed by the notification. As

per Section 25, the Government may issue a notification in

the Official Gazette declaring the area which was already

reserved by the Government prior to the Act coming into

force to be a reserved forest under the Act. Unsettled claims

shall be considered before the notification takes efect,

according to the proviso to Section 25 of the Act.

13. While examining the contention of the Respondent that

the Notification dated 11.10.1883 was issued without

10 | P a g e complying the requirements of Section 25 of the Act, the

High Court committed an error in finding that there is no

order of Reservation prior to 01.01.1883. The High Court

referred to Exhibit B-6 which contains Order No.187 issued

under Section 4 of the Act, to arrive at a conclusion that

there is no order of reservation. Exhibit B-6 also contains

the Notification dated 13.11.1883 by which certain blocks of

forest land described in the Schedule annexed thereto have

been declared as reserved forests. Serial No.XXI of the said

Schedule covers Alagar Hills which is the subject matter of

the suit. Order No.189 was issued under Section 4 of the Act

notifying the proposal to constitute certain area in Madura

District as reserved forest. The area mentioned therein

pertains to Aggamalais. Mr. F.E Robinson, Assistant

Collector, was appointed as the Forest Settlement Officer

and District Forest Officer of Madura to conduct the inquiry

under Section 4. The Notification pertaining to the suit

schedule land i.e. Alagarmalai was under Section 25 of the

Act whereas the Notification in respect of Aggamalais was

issued under Section 4 of the Act.

11 | P a g e

14. The High Court mixed-up the two Notifications to hold

that a reservation was not made in respect of Alagarmalai

prior to the Act coming into force. Relying on Order No.189

pertaining to Aggamalais, the High Court erroneously held

that the notification under Section 4 of the Act relates to

Alagarmalais. On such basis the High Court held that there

was no order passed by the Government declaring the

Algarmalai as reserved forest prior to 01.01.1883 i.e. the

date on which the Act came into force. Proceeding No.1284

dated 23.08.1881 would clearly demonstrate that the

proposal for reserving forest area in Alagarmalai was

approved by the Government prior to the commencement of

the Act.

15. Due to the misconception that Order No.189 issued

under Section 4 of the Act is applicable to Alagarmalai, the

High Court proceeded further to hold that the inquiry under

Sections 6 and 8 have not been conducted. Section 6, as

stated above, provides for an inquiry to be conducted

pursuant to the notification issued under Section 4. Section

8 is connected to the inquiry to be conducted under Section

6. Neither Section 6 nor Section 8 are applicable to a

12 | P a g e notification issued under Section 25 of the Act which deals

with forests which were already reserved by the Government

prior to the Act. Therefore, the finding of the High Court that

mandatory requirements of the Act were not complied with

before issuing Notification dated 11.10.1883 under Section

25 is not correct. The judgments relied upon by the High

Court in Sri Perarula Ramanuja Jeer Swami v. The

Secretary of State for India in Council through the

Collector of Tinnevelly1 and Mysore Balakrishna Rao v.

The Secretary of State for India in Council 2 are not

applicable to the facts of this case.

16. As the suit filed by the respondent was not dismissed

as barred by limitation, it is not necessary for us to examine

the point relating to Section 10 of the Limitation Act.

Another point decided in favour of the Respondent is that

lost grant has to be presumed. On the basis that the

Respondent-temple had been in long and continuous

possession of Alagar hills, the High Court was of the opinion

that lost grant was to be presumed. The High Court

observed that the Respondent-temple had been exercising

1 (1910) VI Indian Cases 691 2 (1915) XXIX M.L.J. 276

13 | P a g e acts of ownership over the suit hills for several centuries.

The Application filed under Order 41 Rule 27 of the C.P.C. by

the Respondent was allowed and the documents produced

by them were marked as Exhibits A-46 to A-56. We have

carefully examined those documents which only show that

honey and other forest produce were being collected by

those who were permitted by the Respondent-temple. The

right, title or possession of the temple over Alagar hills

cannot be determined on the basis of the above documents.

17. An adverse inference was drawn against the Appellant

for not producing the relevant material. The High Court was

of the opinion that the Appellant was guilty of suppression of

the documents which were available. Hence, the High Court

presumed lost grant. The circumstances in which the

presumption of lost grant can be made has been settled by

this Court in a judgment reported in Sri Manohar Das

Mohanta v. Charu Chandra Pal & Ors.3 as under ;

“7. The circumstances and conditions under which a presumption of lost grant could be made are well settled. When a person was found in possession and enjoyment of land for a considerable period of time under an assertion of title without challenge, Courts in

3 (1955) 1 SCR 1168

14 | P a g e England were inclined to ascribe a legal origin to such possession, and when on the facts a title by prescription could not be sustained, it was held that a presumption could be made that the possession was referable to a grant by the owner entitled to the land, but that such grant had been lost. It was a presumption made for securing ancient and continued possession, which could not otherwise be reasonably accounted for. But it was not a presumptio juris et de jure, and the Courts were not bound to raise it, if the facts in evidence went against it. “It cannot be the duty of a Judge to presume a grant of the non- existence of which he is convinced” observed Farwell, J. in Attorney-General v. Simpson [(1901) 2 Ch D 671, 698]. So also the presumption was not made if there was any legal impediment to the making of it. Thus, it has been held that it could not be made, if there was no person competent to be the recipient of such a grant, as where the right is claimed by a fluctuating body of persons. That was held in Raja Braja Sundar Deb v. Moni Behara [1951 SCR 431, 446] . There will likewise be no scope for this presumption, if there is no person capable of making a grant: (Vide Halsbury's Laws of England, Vol. IV, p. 574, para 1074); or if the grant would have been illegal and beyond the powers of the grantor. (Vide Barker v. Richardson [4 B & Ald 579 : 106 ER 1048 at 1049] and Rochdale Canal Company v. Radclife [18 QB 287 : 118 ER 108 at 118] ).”

15 | P a g e

18. We do not agree that the respondent was in continuous

possession under an assertion of title as there is no evidence

on record to reach such a conclusion. The presumption of

lost grant is therefore not permissible.

19. The finding recorded by the High Court that there is

adequate material to hold that Alagar hills belong to the

temple is erroneous. The trial Court is right in holding that

the Respondent miserably failed in producing any material to

prove its title.

20. On 02.04.2019, we were informed that the parties were

attempting a settlement. This Court directed the Member

Secretary, Hindu Religious and Charitable Endowments

Board (HR & CE) to convene a meeting with all the

stakeholders to facilitate a settlement. A meeting was

conducted on 03.08.2019 in the Office of the Commissioner,

HR & CE in which all the stakeholders participated. The

significant proposals of the Respondent were that the title in

respect of the Alagar Hills should be with that of the

presiding deity of the Respondent-temple and that the

income from the forest shall be shared equally by the

Respondent-temple and the Forest Department. The

16 | P a g e Appellant did not accept the said proposals. After joint

inspection by the Forest Department and the HR & CE

Department, the Appellant was willing to divert an area of

18.3032 hectares of land including the various religious

spots for ease of movement of the devotees. The Forest

Department was willing to permit 50 ft. of pathway to reach

all the spots and shrines from the foothill. The Forest

Department was of the view that the temple should

undertake very strict vigil on the ecosystem and

environment and no non-forest activities shall be permitted

within the 18.3032 hectares, except religious activities. We

are in agreement with the proposal made by the Appellant.

The Forest Department shall permit 50 ft. of pathway to

reach all the spots and shrines from the foothills for which

the earmarked area of 18.3032 hectares of land can be

used. No non-forest activities shall be permitted to be

undertaken by anybody, including the Respondent-temple

administration within the 18.3032 hectares of land which is

diverted for ease of movement of devotees to reach all the

spots and shrines from the foothill.

17 | P a g e

21. In view of the above, the judgment of the High Court is

set aside and the Appeals are allowed.

..…..........................J. [L. NAGESWARA RAO]

..…..….....................J. [HEMANT GUPTA] New Delhi, November 06, 2019

18 | P a g e