IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.07.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A. Nos.231 and 812 of 1997 Sri Vedaranyeswarasami Devasthanam, Vedaranyam, by its Executive Officer. ... Appellant in SA231/97 /Plaintiff Arulmighu Vedaranyeswarasami Devasthanam, Vedaranyam, by its Executive Officer, Vedaranyam, Thiruthuraipoondi ... Respondent in SA 812/97 /Plaintiff Vs. 1.Mohammed Mariam 2.Shaiek Dawood Marikar (died) 3.Abdul Bari 4.Mohammed Yunus 5.Mohammed Mastan 6.Ayisha 7.S.Ameenammal (RR3 to 7 are brought on record as L.Rs. Of the Deceased Second Respondent vide order of Court dated 10.07.2008 made in CMP Nos.16466 to 16468/05 in S.A.231/97) ... Respondents in SA 231/97 /Appellantsin SA 812/97/Defendants Common Prayer: Appeals filed under Section of 100 of C.P.C. against the Judgment and Decree dated 24.06.1996 made in A.S.No.142 of 1995 on the file of the Principal Subordinate Judge, NagapattInam confirming in part and modifying the Judgment and Decree dated 30.12.1991 made in O.S.No.192 of 1986 on the file of the District Munsif Court, Thiruthuraipoondi Nagapattinam. For Appellant in SA 231/97 & Respondent in SA 812/97 : Mr.S.K.Rakhunathan For Respondents in SA 231/97 & Appellants in SA 812/97 :Mr.V.K.Vijayaraghavan https://hcservices.ecourts.gov.in/hcservices/ C O M M O N J U D G M E N T The Appellant/Plaintiff’s Temple has filed this Second Appeal S.A.No.231 of 1997 as against the Judgment and Decree dated 24.06.1996 in A.S.No.142/1995 passed by the Learned Subordinate Judge, NagapattInam in refusing to grant the relief of possession and also the claim of mesne profits. 2. The Appellants/Defendants has preferred the Second Appeal S.A.No.812 of 1997 as against the Judgment and Decree dated 24.06.1996 in A.S.No.142/1995 passed by the Learned Subordinate Judge, NagapattInam in granting the relief of injunction in favour of the Appellant/Plaintiff’s Temple. 3. The First Appellate Court viz, the Principal Subordinate Judge, NagapattInam in the Judgment dated 24.06.1996 in A.S.No.142/1995 has among other things held that '...The Appellant/Plaintiff’s Temple has right over the suit properties and is entitled to the relief of declaration and permanent injunction in favour of the Appellant/Plaintiff’s Temple and further held that the Appellant/Plaintiff’s Temple is not entitled to recover possession of the suit properties from the Respondents/Defendants (Appellants/Defendants in S.A.No.812 of 1997) and in regard to the claim of damages of Rs.2,000/- the claim of the Appellant/Plaintiff’s Temple is negatived and resultantly, allowed the Appeal in part'. 4. The following substantial questions of law were framed at the time of admissions of the Second Appeals. S.A.231/1997: i) Whether the Lower Appellate Court is right in refusing the relief of possession especially when a declaration and permanent injunction is granted in favour of the Appellant? ii) Whether the Lower Appellate Court is right in referring the parties to Revenue Court when there is denial of title by the Defendants in respect of the suit property for which a declaration of title having been granted in favour of the Appellants? S.A.812/1997: i) Whether the grant of injunction decree against the Appellants on the facts and circumstances of the case tenable when the Respondent was not the owner of the trees? https://hcservices.ecourts.gov.in/hcservices/ ii) Is the relief claimed by the Respondent against the Second Appellant in a Civil Court maintainable without resorting to fixation of Fair Rent in the competent Court? CONTENTIONS, DISCUSSIONS AND FINDINGS ON POINTS 1 AND 2 IN S.A.231/97 AND 1 AND 2 IN S.A.NO.812/1997: 5. According to the Learned counsel for the Appellant/Plaintiff’s Temple, the First Appellate Court has correctly held that the Appellant/Plaintiff’s Temple is entitled to the relief of Declaration since it is the owner of the suit property and also passed a Decree for permanent injunction restraining the Respondents herein from damaging the property but has declined to grant the relief of possession and mesne profits. 6. It is the contention of the Learned counsel for the Appellant/Plaintiff’s Temple that the suit lands are Inam property and the patta has been granted in favour of the Appellant/Plaintiff’s Temple and since the Defendants are only licensees and not Tenants, the First Appellate Court should have granted the relief of possession in favour of the the Appellant/Plaintiff’s Temple. 7. Advancing his arguments, the Learned counsel for the Appellant/Plaintiff’s Temple submits that the Respondents/Defendants have denied title of the Appellant/Plaintiff’s Temple and therefore, the suit for recovery and possession before the Civil Court is maintainable and accordingly, the Temple is entitled to recover the possession of the property from the Respondents/Defendants. 8. Further, the Learned counsel for the Appellant/Plaintiff’s Temple projects a plea that the First Appellate Court has committed an error in coming to the conclusion that the Respondents/Defendants are Tenants and therefore, the remedy for the the Appellant/Plaintiff’s Temple is to evict them through the Revenue Court and not through the civil proceedings. 9. Moreover, it is the contention of the Learned counsel for the Appellant/Plaintiff’s Temple that the First Appellate Court has rightly come to the conclusion that the Appellant/Plaintiff’s Temple is entitled to get the relief of injunction restraining the Respondents/Defendants from cutting and removing trees from the suit property but it erred in not granting the mesne profits which is based on the trees already cut and removed. 10. In short, the contention of the Learned counsel for the Appellant/Plaintiff’s Temple is that the First Appellate Court has not appreciated the factual aspects of the matter in a real https://hcservices.ecourts.gov.in/hcservices/ perspective and this has resulted in miscarriage of justice and therefore, prays for allowing S.A.No.231 of 1997 in the interest of justice. 11. The Learned counsel for the Appellants/Defendants in S.A.No.812/1997 submits that the First Appellate Court has not appreciated that the Respondent/Plaintiff’s Temple has not proved that the Appellants/Defendants are entitled to cut or had cut the trees in the suit property and as such, the grant of injunction is not proper. 12. Proceeding further, it is the Learned counsel for the Appellant/Plaintiff’s Temple that the trial Court should have held that the Respondent/Plaintiff is not the owner of the trees available in the suit property in view of the Tenancy right available to the Second Appellant/Second Defendant. 13. Expatiating his arguments, the Learned counsel for the Appellants/Defendants contends that the Respondent/Temple has not proved the exclusive ownership for all the trees available in the suit property and therefore, the grant of injunction is not a correct one. 14. It is the contention on the side of the Appellants/Defendants that the Second Appellant/Second Defendant alone is a Tenant under the Respondent/Temple and that the First Appellant/First Defendant (Wife of the Second Appellant/Second Defendant) is not a necessary party and further, in law, the Decree of injunction cannot be granted against a Tenant from enjoying the lands and trees belonging to an individual is not based on sound principle of Law. 15. The Learned counsel for the Appellants/Defendants urges before this Court that the Respondent/Temple is only entitled to kist Rent alone which has been fixed between the parties and the Respondent/Temple cannot claim any right to the crops or trees in the suit properties and at best legally speaking, the Respondent/Temple can claim for Fair Rent alone in respect of the trees and as such, the grant of injunction from enjoying the trees raised by the Tenant in the suit property is clearly unsustainable in the eye of law. 16. The Appellant/Plaintiff’s Temple in S.A.213/97 in the plaint has among other things stated that the suit properties and some other extents of land in Periyakuthagai Village were originally minor Inam lands coming within the purview of the Act 30 of 1963 and the Government has notified the lands for taking over on and from 15.02.1965 and from then onwards the minor lands were vested with the Government. https://hcservices.ecourts.gov.in/hcservices/ 17. Further, the Plaintiff’s Temple in the plaint has also pleaded that the Assistant Settlement Officer has conducted enquiries, etc., and that the suit lands in other minor Inam lands in the suit village were comprised in T.D.805, which were Devadayam Inam lands granted for the support and maintenance of the Plaintiff’s Temple. 18. According to the Learned counsel for the Appellant/Plaintiff’s Temple, the Temple owned both waram in the suit lands. Later, the Settlement Authorities granted Ryotwari patta in recognition of the Title of the Plaintiff’s Temple and its ownership of Iruwaram in the suit lands and the Ryotwari patta was granted in the year 1972 and the Revenue kist is collected by the Government from the Temple. Even in the updating Registry Programme, patta has been granted to the Temple. Therefore, the Appellant/Plaintiff’s Temple has got the absolute title in respect of suit lands. 19. It is not out of place for this Court to make a pertinent mention that the Appellant/Plaintiff’s Temple in paragraph 3 of the plaint has among other things averred that as the owner of the land, the standing trees also belonged to the Plaintiff’s Temple and in the erstwhile Inam lands minor and major for which patta were granted, individual cultivators were permitted to cultivate fuel crop of casurina with an understanding and agreement based on practice and customs of area to share half waram. 20. It is the case of the Appellant/Plaintiff’s Temple that the First Respondent/First Defendant some 8 years ago has agreed to share half waram in the yield cultivated in major portion in suit lands with casurina but she refused to agree for selling the casurina by public auction and to receive half share and apprehending stealthy cutting and removal of casurina in the suit lands, the Appellant/Plaintiff’s Temple filed a suit on the file of the District Munsif Court, Thiruthuraipoondi against the First Appellant/First Defendant in O.S.450/81 and that the Second Appellant/Second Defendant is the husband of the First Appellant/First Defendant. In the said suit, it was tried along with the other identical claims filed by several other Tenants. The Second Respondent/Second Defendant in his evidence has deposed that the suit lands are in his enjoyment and has not raised casurina on any waram agreement and he has paid fixed cash rent and he has got a kudikani or kudiwaram right which is in the nature of a permanent tenancy. The suit against the First Respondent/First Defendant has been dismissed holding that she is not a proper party. However, the Court has decreed the half share of the Plaintiff’s Temple in all other cases of identical claim and that the Court has not gone into the merits of other issues though the suit in O.S.450/81 has been dismissed, the appeal is being filed. https://hcservices.ecourts.gov.in/hcservices/ 21. The core contention put forward on the side of the Appellant/Plaintiff’s Temple is that there can be no permanent tenancy against the Temple’s property and that ‘claim of kudikani and kudiwaram’ is meaningless and untenable because of the fact that the Temple owns both the warrams and Ryotwari patta has been granted in favour of the Temple and since the Respondents/Defendants claim a permanent right and Title in themselves a cloud is cast on the Plaintiff’s Temple’s Title. 22. The next limb of the contention on the side of the Appellant/Plaintiff's Temple is that the suit lands with all standing trees have to be put in possession of the Plaintiff’s Temple and that because of the claim of the suit lands and trees standing thereto, the Title has to be declared and the suit lands have to be recovered from the Respondents/Defendants and possession has to be delivered to the Temple. 23. It is the contention of the Learned counsel for the the Appellant/Plaintiff’s Temple that the Respondents/Defendants have hatched a deep conspiracy to gradually and stealthily cut and remove the standing trees and cause huge loss to the plaintiff and even they are disputing the number of standing trees and till, the suit is finally disposed of and possession is delivered, the crops have to be preserved and the mischief of the Respondents/Defendants has to be prevented by the relief of injunction and the temple estimates the past profits at Rs.600/- and is willing to pay the required court fee for the actual past and future profits as determined by it after the appointment of the Commissioner. 24. Significantly, a perusal of the plaint indicates that the Appellant/Plaintiff’s Temple has averred that the Second Respondent/Second Defendant has cut a very big mango tree in the first week of May 1986 and the Second Respondent/Second Defendant has taken a plea that the mango tree stood in the land belonged to him and the police seized the trunk and two pieces of Tree and entrusted for safe custody and the market value of the tree at present is Rs.2,000/-, etc., 25. The Respondents 1 and 2/Defendants in the Written Statement have pleaded that even though the Ryotwari patta has been obtained by the Appellant/Plaintiff’s Temple, the Temple has admitted in the suit filed against the First Respondent/First Defendant that the Respondents/Defendants are cultivating Tenants and the real dispute between the Appellant/Plaintiff’s Temple and the Respondents/Defendants and other cultivating Tenants is that whether the Fair Rent in respect of the lands will have to be paid as kist or on lease or it has to be paid on waram basis? 26. Continuing further, it is the categorical stand of the Respondents/Defendants that the Respondents/Defendants have not https://hcservices.ecourts.gov.in/hcservices/ denied the ownership or right of the Appellant/Plaintiff’s Temple in respect of the suit lands. But, the stand of the Respondents/Defendants is that they are permanent kudikanidars and from them, the Fair Rent will have to be collected either in cash or in kind but the same cannot be asked as part waram and in short, the contention of the Appellant/Plaintiff’s Temple is that certain amounts are not sufficient but they require half waram. 27.According to the Learned counsel for the Respondents/Defendants, in suit O.S.450/81, filed by the Appellant/Plaintiff’s Temple, the stand of the First Defendant has been accepted by the concerned Court and the suit has been dismissed. The Learned counsel for the Respondents/Defendants submits that the Respondents/Defendants along with predecessors in possession for nurturing the trees and for cultivating paddy and casurina trees, etc., have paid one Rupee for one mango tree year by year to the Appellant/Plaintiff’s Temple and after obtaining the Ryotwari patta after a long time, the Appellant/Plaintiff’s Temple is claiming half waram and when the Appellant/Plaintiff’s Temple has received the certain amount as lease suddenly cannot claim half waram and in fact, the Second Respondent/Second Defendant is in enjoyment of the suit lands from the year 1954 and inasmuch as the Respondents/Defendants have not disputed the ownership of the Plaintiff’s Temple in the suit property, the relief claimed by the Temple in respect of the Declaration over the suit properties is not correct. 28. Further more, the Respondents/Defendants is not liable to give damages to the Appellant/Plaintiff’s Temple and the Second Respondent/Second Defendant is a Tenant and therefore, at best, the Appellant/Plaintiff’s Temple can ask for increased in lease amount but they cannot claim income and since the trees have been raised and nurtured, paddy cultivated by the Second Respondent/Second Defendant by his cultivation and enjoyed by him. Therefore, he is not entitled to give the entire income of the Temple. 29. The trial Court on an appreciation of oral and documentary evidence and scrutinizing the Exs.A1 to A8 and Exs.B1 to B22 and Ex.C1, Commissioner’s Report and Plan and also by taking into account of the evidence tendered by PWs.1 to 3 D.Ws.1 and 2 has come to the conclusion that the Appellant/Plaintiff’s Temple is not entitled to claim the relief of declaration and relief of possession because of the fact that as per Ex.A6 common Judgment in O.S.Nos.363, 420 and 450/1981 dated 30.04.1986 on the file of the District Munsif Court, Thiruthuraipoondi, the First Respondent/First Defendant (Wife of the Second Respondent/Second Defendant) has figured as Defendant in O.S.450/81 wherein it is held that she is a unnecessary party and that in the Written Statement filed in O.S.450/81, it is specifically mentioned that the First Respondent/First Defendant’s husband viz., https://hcservices.ecourts.gov.in/hcservices/ the Second Respondent/Second Defendant is in enjoyment of the suit properties mentioned thereto and resultantly, the said suit has been dismissed. 30. Added further, in the said suit O.S.450/81, it is clear from Ex.A6 common Judgment in O.S.Nos.363, 420 and 450/1981 dated 30.04.1986 that the Respondents/Defendants have been permitted as part weekly cultivating Tenant. The trial Court in O.S.192/86 has come to the fair conclusion that the Second Respondent/Second Defendant is a cultivating Tenant and also even PW1 has deposed that in respect of Tenants who cultivated the properties belonging to the Appellant/Plaintiff’s Temple in other village, a Fair Rent has been claimed before the Fair Rent Court and an order has been passed and that in the present case, the Appellant/Plaintiff’s Temple has not gone into the Fair Rent Court to determine the Fair Rent. In short, the trial Court has categorically opined that the Second Respondent/Second Defendant can be evicted from the suit properties as per the provisions of the Public Trust Act by instituting necessary proceeding before the Revenue Court and accordingly, the relief of declaration and recovery of possession, as prayed for by the Appellant/Plaintiff’s Temple. It has also opined that since the Second Respondent/Second Defendant is enjoying the suit property in the capacity of a tenant, the fear that he will cause damage to the suit property is unnecessary and since the Appellant/Plaintiff’s Temple is not in possession of the suit properties, the relief of permanent injunction has not been granted. 31. The trial Court as a matter of fact has come to an inevitable conclusion that the Second Respondent/Second Defendant is a Tenant in respect of the suit properties. Therefore, he is not an encroacher or a trespasser. That apart, he is paying kists and only due to increase in lease amount, as prayed for by the Appellant/Plaintiff’s Temple and since that has been refused to pay by the Respondents/Defendants, the present suit has been filed. In regard to the plea that the Second Respondent/Second Defendant has cut the mango tree, it has been established before the trial court that the Respondents/Defendants have cut the mango tree from the patta land of the Second Respondent/Second Defendant as per the evidence of DW2 and since it has not been proved to the satisfaction of the Court that the mango tree has been in the suit property, it has not awarded the relief of damages of Rs.2,000/- to the Plaintiff for destroying the trees by the Second Respondent/Second Defendant. 32.According to the Learned counsel for the Respondents/Defendants, the Landlord and Tenant relationship is spoken to by the (Plaintiff’s Witness) PW1 in Ex.A6, common Judgment in O.S.Nos.363, 420 and 450/1981 dated 30.04.1986 and in O.S.192/86 on the file of the District Munsif Court, Thiruthuraipoondi, it is https://hcservices.ecourts.gov.in/hcservices/ seen from Exs.B20 and B21 that the Receipts given by the Appellant/Plaintiff Temple is in the name of the First Respondent/First Defendant (Wife of the Second Respondent/Second Defendant) and paid on behalf of the husband, the Second Respondent and that the relationship between the Temple and the Second Respondent/Second Defendant has been lawful and that the Second Respondent/Second Defendant has raised casurina in the suit properties and therefore, he has right to take his produce and the Appellant/Plaintiff’s Temple is entitled to collect rent. 33. Proceeding further, the Learned counsel for the Respondents/Defendants submits that unfortunately, the First Appellate Court has granted the relief of injunction against the Respondents/Defendants and in favour of the Appellant/Plaintiff’s Temple and one cannot ignore an important fact that Ex.B20 and B21 Receipts issued by the Plaintiff Temple are prior to the grant of patta and since the Second Respondent/Second Defendant is not a trespasser or an encroacher in respect of the suit properties, the injunction granted by the First Appellate Court is legally unsustainable in the eye of law. 34. The Learned counsel for the Respondents/Defendants cites the Full Bench decision of this Court in SRINIVASAN AND 6 OTHERS V. SRI MADHYARJUNESWARASWAMI, POTTAVAITHALAI, TIRUCHIRAPALLI, DISTRICT BY ITS EXECUTIVE OFFICER AT PETTAVAITHALAI DEVASTHANAM AND 3 OTHERS, 1998(2)LW 189 at page 208 wherein it is among other things observed as follows: "14....... A comparison of the provisions contained in the Abolition Act, the Inam Abolition Act as also the Minor Inams Act, would go to show that the ultimate object of one or the other of these legislations is the introduction of ryotwari settlement in the areas covered and notified under the respective enactments, after abolishing existing land tenure and acquiring the rights of the landholders or Inamdars concerned, who under the system of land tenure which was in vogue in those areas, were considered to be intermediaries in between the actual tiller of the soil and the State and that the other provisions pertaining to the constitution of authorities, their powers, jurisdiction and the finality given to the orders passed, or incorporation of a provision in the nature of res judicata providing for the binding nature of the orders on the parties to the same and persons claiming under them in any suit or proceeding in a civil court insofar as such matters are in issue between the parties or persons in such suit or proceeding, are almost identical and similar, except https://hcservices.ecourts.gov.in/hcservices/ certain differences which, in our view, may not be that much relevant for the issue before us. Even while dealing with this aspect of the matter, the Supreme Court in the decision reported in Air 1986 SC 794=98 L.W. 849 [supra] observed that the powers of the statutory authority constituted under the Act are exercised in a summary manner and the claims of occupants comes to be determined only incidentally and they cannot be equated with the civil courts in respect of what they could do or the nature of relief that they could grant. A careful analysis of the scheme underlying these Abolition laws would go to show that the vesting on abolition under everyone of these legislations is subject to the pre-existing rights of the occupants, except in respect of what are known as public or communal properties, meant for common use and the grant of patta has been always considered and held to be in recognition of their pre-existing rights. The provisions relating to abolition and vesting, of the properties do not have the effect of obliterating or destroying such pre- existing rights, if any, except in respect of public or communal properties and the rights which inhere are the basic and fundamental rights which entitle a person to preferentially get patta under these legislations, and the same could not be equated to the grant of patta by way of assignment under the Revenue Standing Orders or under rules of assignment outside the scope of the statutory enactments. Similarly, a meticulous analysis of the scheme underlying the provisions of the Act dealing with the nature of rights dealt with by the various authorities, the manner in which such authorities adjudicate such rights and the consequences of such adjudication, disclose that they do not mean and even intend to be a substitute or alternate mode of resolution of the ordinary civil right of a citizen or for that matter persons asserting competing claims, in their attempt to project a claim for patta. Consequently, in our view, the ratio of the decisions of the Apex Court reported in AIR 1986 SC 794=98 L.W.849 (supra), (1995) 4 SCC 156=1995-1- L.W.731 (supra) and (1998) 2 SCC 642 (supra) and that of a Division Bench of this Court in 1988-2-L.W. 513 (supra) and of a Learned single Judge of this Court in 1992-1-L.W.207 (supra) would squarely apply and govern the case and consequently, it has to be necessarily held that the jurisdiction of the civil courts cannot be held to have been completely ousted or barred at any rate in respect of adjudication of https://hcservices.ecourts.gov.in/hcservices/ claims of title and questions or issues which are not obliged or required to be adjudicated for the purposes of enforcement of these laws which have, as their object and aim, to implement Ryotwari Settlement in the areas governed by them." 35. The Learned counsel for the Respondents/Defendants submits that the Special Deputy Collector