Case: THE GOVERNMENT OF TAMIL NADU AND ANR. ETC. ETC Vs. ARULMIGHU KALLALAGAR THIRUKOIL ALAGAR KOIL ETC. ETC

Secretary of State for India in Council through the Collector of Tinnevelly (1910) VI Indian Cases 691 and Mysore Balakrishna Rao v. The Secretary of State for India in Council (1915) XXIX M.L.J. 276 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 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. (1955) 1 SCR 1168 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 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 Halsburys 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] ).? 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. While examining the contention of the Respondent that the Notification dated 11.10.1883 was issued without 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.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.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 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 Tinnevelly (1910) VI Indian Cases 691 and Mysore Balakrishna Rao v. The Secretary of State for India in Council (1915) XXIX M.L.J. 276 are not applicable to the facts of this case.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 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.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.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.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.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 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.