J U D G M E N T K. Venkataswami, J.
These three appeals arise out of the common judgment and order made in S.T.A.Nos. 174, 181 and 210 of 1974 on the file of the Madras High Court.
The brief facts leading to these appeals as noted in the High Court judgment are the following :-
The first respondent-temple was the grantee of a minor inam comprising of lands bearing old S.Nos. 173 and 175 of the total extent of 19.58 acres in Pollachi village. The terms of the original grant as such were not available, however, the Inam fair register produced in the proceedings showed that the grant was a devadayam religious inam of a permanent character given rent-free for the support of the temple. The Inam was confirmed in the year 1863 under the title deed No. 161. By the Tamil Nadu Minor Inam (Abolition and Conversion into Ryotwari) Act, 1963, (hereinafter called the Act) minor inams were abolished and Ryotwari settlement was introduced. The Settlement Tehsildar No. II Gobi Chettipalayam initiated an enquiry for the purpose of grant of a Ryotwari patta under the provisions of the said Act. The appellants herein and also the first respondent temple appeared before the said Settlement Tehsildar and asked for Ryotwari patta to be issued in their favour in regard to the lands in their respective possession. The appellants in particular, contended before the Settlement Tehsildar that the first respondent temple had lost possession of the Inam lands soon after the grant as the lands were alienated by one Thirumalai Ayyan, pujari of the temple in whose favour the Inam Commissioner had conferred the grant. Be it noted that no sale deed by the said individual was produced by the appellants before the Settlement Tehsildar at the time of the enquiry, nor before the appellate authority or before the High Court or even before this Court. Instead the appellants placed strong reliance on a partition deed dated 17.2.1888 between three members of a joint family by name Kuppanna Mudaliar, Marianna Mudaliar and Lakshmana Mudaliar. Placing reliance on the recitals in the said partition deed and also the sale deeds subsequent to the said partition deed executed by the successors-in-interest of the said joint family members, the appellants contended that the temple had lost its title to the Inam lands.
Though the Settlement Tehsildar did not agree with the contention of the appellants that the partition deeds relied on by the appellants could be taken as an alienation by the Inamdar of the lands in question, strangely granted patta to the appellants under Section 8(2) (i) (b) of the Act holding that the appellants were in continuous possession of the lands for more than 12 years before 1.4.1960.
The appellants not satisfied with the grant of patta under Section 8(2) (i) (b) of the Act preferred appeals to the Minor Inam Tribunal (Principal Subordinate Judge) Coimbatore claiming patta under Section 8(i) of the Act.
Before the Tribunal, the appellants contended that what was granted to the temple was only melwaram interest and the appellants alone were rightfully entitled to kudiwaram interest and on the abolition of Minor Inams they alone were entitled to Ryotwari patta.
The Tribunal accepting the case of the appellants granted patta under Section 8(i) of the Act in their favour.
Aggrieved by the grant of patta to the appellants, the first respondent temple preferred further statutory appeals to the High Court which were heard by a Division Bench and the learned Judges disagreeing with the conclusions reached both by the Settlement Tehsildar and the Tribunal reversed their findings and granted patta in favour of the temple.
Aggrieved by the decision of the High Court, the present appeals are filed by the appellants.
Mr. A.T.M. Sampath, learned counsel appearing for the appellants submitted that the High Court ought to have accepted the contention of the appellants raised before it placing reliance on a Division Bench judgment of that Court reported in 1949 (2) MLJ 609 entitled Bagavathi Aiman Temple vs. Krishna Goundar. Learned counsel further submitted that in view of he partition deed of the year 1888, the subsequent sale deeds and continuous possession of the lands, it was established that the appellants were in continuous possession and enjoyment of the lands, and therefore, they must be given Ryotwari patta under Section 8(i) of the Act on the basis of prescription of title to kudiwaram right by adverse possession. He also submitted that the view taken by the Tribunal that the grant in favour of the temple was only of melwaram interest was correct in the facts and circumstances of the case and the contrary finding given by the High Court is not sustainable. In addition to the judgment relied on by the appellants before the High Court, learned counsel placed reliance on two other judgments of the Madras High Court in STA Nos. 21/1976 and 103/1975 entitled Peria Alagunachiamman oil & Ors. vs. The Settlement Tehsildar, Coimbatore & Ors. and Sri Ayirathan Vinayakar Temple Arumughamangalam vs. State of Tamil Nadu & Ors. respectively.
Contending contra, learned counsel appearing for the first respondent Temple invited our attention to Sections 8(2) (i) and 44 of the Act. According to the learned counsel, there is nothing on record to show that the inamdar or any person claiming through him has legally parted with the title to the land. All the documents produced by the appellants were only transactions among the transferees without establishing who the original transferor was. That being the admitted position, according to the learned counsel, Section 44 of the Act is attracted and the presumption that follows is that the grant in favour of the Temple was both warams/iruwaram. This argument having rightly been accepted by the High Court, according to the learned counsel for the first respondent Temple, there is no case for interference.
Before considering the rival submissions, it will be useful to refer to some of the relevant provisions of the Act. The Act was enacted as per Preamble "to provide for the acquisition of the rights of inamdars in minor inams in the State of Tamil Nadu and for the introduction of Ryotwari settlement in such inams." Section 3(a) explicitly declares inter alia that as and from the appointed day, the provisions of the Act alone shall be applicable to the minors inams and that any other existing law on the subject shall be deemed to have been repealed. Section 3( ) declares that all rights created by the inamdar in or over his inam before the appointed day shall cease and determine as against the Government.
Sections 3(g), 8(i) & (2) and Section 44 read as follows :-
Section 3(g)
"any rights and privileges which may
have accrued in the minor inam to any
person before the appointed day against
the inamdar shall cease and determine
and shall not be enforceable against the
Government or against the inamdar and
every such person shall be entitled only
to such rights and privileges as are
recognised or conferred on him, by or
under this Act."
Section 8(1)
"Subject to the provisions of sub-
section (2) every person who is lawfully
entitled to the Kudivaram in an inam
land immediately before the appointed
day whether such person is an inamdar
appointed day, be entitled to Ryotwari
patta in respect of that land."
Section 8(2) :
"Notwithstanding anything contained in
sub-section (1) in the (Tamil Nadu)
Hindu Religious and Charitable
Endowments Act, 1959 (Tamil Nadu Act 22
of 1959) and in the (Tamil Nadu)
Transferred Territory) Incorporated and
Unincorporated Devaswoms Act, 1959
(Tamil Nadu) Act 30 of 1959), the
following provisions shall apply in the
case of lands in an iruvaram minor inam
granted for the support or maintenance
of a religious institution or for the
performance of charity or service
connected therewith or of any other
religious charity -
(i) where the land has been
transferred by way of sale and the
transferred by way of sale and the
transferee or his heir assignee legal
representative or person deriving rights
through him had been in exclusive
possession of such land;
(a) for a continuous period of
sixty years immediately before the 1st
day of April 1960, such person shall,
with effect on and from the appointed
day, be entitled to a Ryotwari patta in
respect of that land;
(b) for a continuous period of
twelve years immediately before the 1st
day of April, 1960, such person shall,
with effect on and from the appointed
day, be entitled to a Ryotwari patta if
he pays as consideration to the
Government in such manner and in such
number of instalments as may be
prescribed an amount equal to twenty
times the difference between the fair
rent, in respect of such land determined
in accordance with the provisions
contained in the Schedule and the land
revenue on such land;
(ii) in the case of any other land,
the institution or the individual
rendering service shall with effect on
and from the appointed day, be entitled
to a Ryotwari patta in respect of that
land."
Explanation :- For the purposes of
this sub-section, "land revenue" means
the Ryotwari assessment including the
additional assessment, water-cess and
additional water-cess."
Section 44 :
"In proceedings under this Act relating
to any inam granted for the benefit of
any religious educational on charitable
institution or granted to any individual
for rendering service to a religious,
educational or charitable institution or
for the purpose of rendering any other
service it shall be presumed, unless the
contrary is proved, that the inam
consists not merely of a grant of the
melvaram in the land but also the
kudivaram therein."
With this background, let us now proceed to consider the cases before us.
As noticed earlier, the Settlement Tehsildar though negatived the contention of the appellants that by reason of the partition deed dated 17.2.1888 and subsequent numerous sale deeds, it must be deemed that the first respondent had parted with disputed lands, has granted Ryotwari patta under Section 8(2) (i) (b) on the ground that the appellants were in possession of the lands in question for a continuous period of 12 years immediately before the 1st April, 1960. This view of the Settlement TEhsildar was rightly set aside by the High Court in view of the admitted fact that the appellants miserably failed to establish that the first respondent temple (inamdar) has transferred the lands by way of sale and mere possession of lands for the said period will be of no avail. It may be pointed out here that the Settlement Tehsildar has rightly held that the first respondent was granted a devadayam religious inam of a permanent character consisting of iruwarams (both melwaram and kudiwaram). This position is also strengthened/supported by the statutory presumption in favour of religious institution like the 1st respondent herein as per Section 44 extracted above especially in the premise of appellants’ failure to prove the contrary. Once the position that the first respondent temple was granted both warams, the claim of the appellants that they must be granted Ryotwari patta under Section 8(1) must fail as there is no scope for invoking Section 8(1) by the appellants in view of Section 8(2) extracted above and also on the facts of these cases.
We have seen earlier that the Inam Abolition Tribunal on appeals by the Appellants herein held that the temple was granted only melwaram and the appellants were lawfully entitled to the kudiwaram and therefore, entitled to Ryotwari patta under Section 8(1) of the Act. This view of the Tribunal cannot stand a moment’s scrutiny in view of statutory presumption provided in Section 44 of the Act. Further the Tribunal for coming to the above conclusion assumed certain facts which were either not established or substantiated. Therefore, very rightly the High Court set aside that view of the Tribunal. We may also point out that the learned counsel for the appellants before the High Court factually did not support that view of the Tribunal and therefore, advanced arguments claiming title to kudiwaram right based on adverse possession which also did not find favour with High Court. Learned counsel for the appellants reiterated before us the claim for Ryotwari patta on the basis of long and continuous possession coupled with sale deeds following partition deed dated 17.2.1888. Here again, the contention based on adverse possession is misconceived one. After coming into force of the Act, the right, title and interest in minor inam lands vested free from encumbrance with the Government and Ryotwari pattas had to be claimed only under the provisions of the Act not outside the Act. If this position is borne in mind, there will be no difficulty in rejecting the contention based on adverse possession. Further in view of Section 3(g) extracted above, the claim of adverse possession cannot be countenanced.
The High Court has rightly distinguished the case on which reliance was placed by the appellants, namely 1949 (21) MLJ 602 (supra) by pointing out that that was a case which did not deal with a statute like the present Act and High Court was called upon in the present case to consider the grant of Ryotwari patta under the provisions of the Act and not outside the Act. As pointed out earlier, before us two more decisions were cited and we find in both the cases the admitted fact was that the alienation was by the inamdar temple itself. That makes all the difference. Therefore, those decisions will not help the appellants. At the risk of repetition we may point out that it is an admitted fact that the appellants have failed to establish that there was any alienation by the inamdar to enable the appellants to claim Ryotwari patta under Section 8(2). The inam in question, as found earlier, was an inam granted for the benefit of a religious institution and so the statutory presumption provided under Section 44 will come into full play in the absence of the appellants proving anything contrary to get over the said statutory presumption. In this context, the decision relied on by the first respondent before the High Court and also relied on before us reported in Vol. 87 (1974) Law Weekly p. 652, helps the first respondent in sustaining the judgment and order of the High Court. The learned judges have clearly pointed out while considering the provisions of Section 8(2) as follows :<SLS>
"That provision, in our opinion will not
apply to a case of alienee. The policy
of the law, as it stood prior to Madras
Act 30 of 1963, was that alienations by
way of sale would be null and void. The
Madras Hindu Religious and Charitable
Endowments Act of 1959 and its
predecessors provided for resumption and
re-grant of such alienated service inam
lands. We have got to approach S.8 in
that context. The policy of the law in
respect of alienated religious or
charitable inam lands is indicated in
Sub. S. 2(i) of S. 8. The alienation
should have been made by the inamdar and
the transferee or his heir, assignee,
legal representative or person deriving
rights through him should have been in
exclusive possession for the period
provided by Cl.(a) or Cl.(b). These two
clauses lead to different results. If
possession with the alienee is proved as
coming within the ambit of Cl.(b)
subject to payment of consideration to
the Government as provided by the
Section, patta may be granted to the
alienee. Where a religious or charitable
inam land had been alienated but
possession was not proved as provided in
Cl. (i) of Sub. S. (2) of S. 8, the
alienee will not be entitled to patta."
Lastly, one argument advanced by the learned counsel for the appellants remains to be dealt with, namely, that in any event, the appellants are entitled to have patta under Section 8(2) (i) (b) as granted by the Settlement Tehsildar even though their claim for patta under Section 8(1) was rejected by the High Court. This was elaborately dealt with by the High Court and while repelling such argument, it observed as follows :-
"The entire scheme and structure of the
Act as well as the purpose of
constituting the authorities and
functionaries under the Act to
effectively administer the provisions of
this Act and to carry out the principal
objective of introduction of ryotwari
settlements in the place of the minor
inams in the State. In this context,
therefore, we do not think that the
rules of procedure applicable to trial
of suits in courts of first instance and
the entertainment of appeals against
decree and orders of Courts of first
instance provided under the Code of
Civil Procedure can at all be regarded
as applicable to proceedings under the
Act. Mr. Narayanaswami, referred to
section 30(3) of the Act which lays down
that the Special Appellate Tribunal
shall, subject to the provisions of
Section 47-A, have the same powers as
are vested in a Civil Court under the
Code of Civil Procedure 1908 (Central
Act V of 1908) when hearing an appeal.
He also referred to us Section 46 of the
Act which/provides that any order passed
by any officer, the Government or other
authority or any decision of the
Tribunal or the Special Appellate
Tribunal under this Act in respect of
matters to be determined for the purpose
of this Act shall, subject only to any
appeal or revision provided under this
Act, be final. But, we do not regard
these provisions in the Act as in any,
way restricting or limiting our powers
as an appellate Tribunals to determine
finally and effectively the question of
issue of ryotwari patta or any other
matter that may come before us in
appeal. Section 46 itself indicates that
the orders to be passed by the Special
Tribunals and Appellate Tribunal shall
not be liable to be questioned in a
Court of law, thereby implying that
while acting under Section 30 the High
Court does not function as a Court of
law."
For the above reasons, we hold that the Settlement Tehsildar and the Inam Abolition Tribunal fell into two different types of errors for granting ryotwari patta to appellants under Section 8(2) (i) (b) and Section 8(1) respectively which errors have been removed and set right by the High Court.
In the result, the appeals fail and are accordingly dismissed. However, there will be no order as to costs.