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

1. H.H. Sri Sundara Ramanuja Periya Jeer Swamigal of 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 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 T amil 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.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.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 schedule property i.e. Alagar Hills was in possession, control and management of the Forest Department.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.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.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 forWhether Azhagar Hills belong to Azhagar TWhether 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 wouldWhether the Government Order dated 11.10.1883 had been properly issued or is illegal and invalid for non observance of the provisions of the T amil Nadu Forest Act, 1882?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 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.

Reasoning:
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.