Lost Grant -presumption - when not - 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. likewise be no scope for this presumption, if there is no person capable of making a grant:
Suit for Declaration of title and possession and injunction against forest department
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 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. =
Apex court held that
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. -
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.
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 nonexistence 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.
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.
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.
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos. 559- 560 of 2008
The Government of Tamil Nadu & Anr. Etc. Etc.
.... Appellant(s)
Versus
Arulmighu Kallalagar Thirukoil Alagar Koil
& Ors. Etc. Etc.
…. Respondent(s)
J U D G M E N T
L. NAGESWARA RAO, J.
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
1 | P a g e
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 | P a g e
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 | P a g e
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 Respondenttemple. 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 | P a g e
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 | P a g e
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 Respondenttemple.
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 Respondenttemple 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 | P a g e
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 | P a g e
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 | P a g e
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 | P a g e
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 Tinnevelly
1
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 nonexistence 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
Suit for Declaration of title and possession and injunction against forest department
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 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. =
Apex court held that
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. -
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.
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 nonexistence 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.
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.
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.
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos. 559- 560 of 2008
The Government of Tamil Nadu & Anr. Etc. Etc.
.... Appellant(s)
Versus
Arulmighu Kallalagar Thirukoil Alagar Koil
& Ors. Etc. Etc.
…. Respondent(s)
J U D G M E N T
L. NAGESWARA RAO, J.
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
1 | P a g e
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.
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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
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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 Respondenttemple. 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.
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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
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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 Respondenttemple.
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 Respondenttemple 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
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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
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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
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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 | P a g e
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
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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.
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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 Tinnevelly
1
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
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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 nonexistence 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.
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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
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