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PETITIONER: C.   PERIASWAMI GOUNDAN AND ORS.

       Vs.

RESPONDENT: SUNDARESA IYER AND ORS.

DATE OF JUDGMENT: 31/07/1964

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. SIKRI, S.M.

CITATION:  1965 AIR  516            1964 SCR  (8) 347

ACT: Inam grant-Suit for ejectment-Defendant raised plea of  Lost Grant-When presumption of Lost Grant arises-Whether grant is melvaram or both varams --Right of Archakas-Whether Archakas can claim remuneration in a suit for ejectment.

HEADNOTE: The  appellants  filed  suits for the  recovery  of  certain properties  from  the possession of  the  respondents.   The plaintiffs  were  the  trustees  of  the  temples  and   the defendants  were the archakas and the alienees of  the  suit properties.  These suits were based on title and the  relief asked  for  was the eviction of the archakas from  the  suit property as they, according to the plaintiffs,  (appellants) had no title to remain in possession  The plaintiff  claimed that  the suit properties were the properties of  the  deity and that the defendants had no right therein.  The  archakas raised  the  plea that the title of the deity  was  confined only to melvaram in the plaint-schedule lands and that  they had  title to the Kudivarani.  Both the Trial Court and  the High  Court  confirmed the title of the deity  to  both  the interests (Varams) and negatived the title of the defendant- Archakas.   The High Court also held that the archakas  were entitled  to have a portion of the said properties  allotted to  them towards their remuneration for the services to  the temples and gave a decree directing the division of the said properties  into  two  halves and putting  the  archakas  in possession  of  one half.  Against this decree of  the  High Court  both  the  archakas  and  the  trustees  (appellants) preferred cross appeals to this Court. 348 The main point for consideration was whether the High Court, having  held that the title to the suit property  vested  in the  deity, had jurisdiction to compel the trustees  of  the temple to put the archakas in possession of specified extent of property towards their remuneration. Held:(i)  The  principle of a Lost Grant  can  only  be invoked  where there is no acceptable evidence of the  terms of  the  grant.  In the present case there is no  scope  for invoking  the  doctrine of Lost Grant as the  terms  of  the grant  are clear from the recitals in the lnam register  and the  inam statement, which conclusively establish that  both

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the Varams were granted to the deity. Sankaranarayana Pillayan v. H.R.E. Board, Madras I.L.R. 1949 Mad.  585,  Buddu  Satyanarayana  v.  Konduru  Venkatapayya: [1953] S.C.R. 1001, Maginiram Sitaram v. Kasturbai Manibhai, (1921)  L.R.  49 I.A. 54 and Mohamed Muzafar Ali  Musavi  V. Jabeda Khatun, (1930) L.R. 57 A. 125, relied on. (ii)The  High  Court erred in making an allocation  of  the lands  between the trustees and the archakas in a  suit  for ejectment because there was absolutely no material either in the   pleadings  or  in  the  evidence  to  make  any   such apportionment.  ’Me High Court had De option but to  deliver possession to the plaintiffs who had established their title to the suit properties.  In a suit for framing a scheme  for temple a court may in an appropriate case put the archaka in possession  of  a portion of the temple  lands  towards  his remuneration   for   services  of  the  temple;   but   such considerations are out of place in a suit for ejectment. Brahmayya  v. Rajaswaraswami Temple, A.I.R. 1953 ’,fad.  580 as Venkatadri V. Seshacharlu, I.L.R. 1948 Mad. 46.  referred to. (iii)On  the  facts of this case it was held  that  the conduct of the archakas, was consistent with the recitals in the  inam  register, namely, that what was  granted  to  the deity  was the land i.e. both the Varams and that  they  had been  put  in enjoyment the said land in their  capacity  as archakas   and  de  facto  trustees.   They  could  not   by mortgaging  or otherwise alienating the property  claim  any right  in derogation of the title of the deity.   They  also cannot claim any right because their names are mentioned  in addition  to  deity in the Inam register.   Their  names  in addition  to  the  deity  are  mentioned  as  they  were  in possession  of  the  land  in their  capacity  as  de  facto trustees. Arunachalam  Chetti  v.  Venkata  Chalapathi  Guruswamligal, (1920)  I.L.R. 43 Mad. 253 and Secretary of State for  India v. Vidhya Thirta Swamiga, I.L.R. 1942 Mad. 893, referred to. Narayanamurthi  V.  Achaya Sastrulu, A.I.R.  1925  Mad.  411 relied on.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  646-652  of 1960. 349 Appeals from the judgment and decree dated November 28, 1962 of  the  Madras  High Court in 385, 259, 260,  385  of  1947 respectively. A.V.  Viswanatha  Sastri and R. Gopalakrishnan,  for  the appellant  (in C.A. Nos. 648, 649 and 650 of 1960)  and  for the respondents (in C.A. Nos. 651 and 652 of 1960). T.V. R. Tatachari, for respondents Nos. 1. 2. 5 and 6 (in C.A.  No.  648 of 1960) and appellants (in C.A. No.  652  of 1960). S.T.  Desai,  K.  Jayaram  and  R.  Ganapathy  Iyer,  for respondents  No. 1, 3, 4, 5, 8 to 11, 15, 16, 18, 19 and  21 (in  C.A. No. 649 of 1960) respondents Nos. 1, 2 and  8  (in C.A. No. 650 of 1960) and the appellants (in C.A. No. 651 of 1960). July 31, 1964.  The Judgment of the Court was delivered by SUBBA RAO, J. These five appeals by certificate arise out of Original  Suits Nos. 183, 184 and 185 of 1945 filed  in  the Court of the Subordinate Judge, Coimbator, Madras State. O.S. No. 183 of 1945 relates to properties claimed on behalf of  Sri  Chowleswaraswami temple.   Periaswami  Goundar  and

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Samana  Goundar,  the plaintiffs in the said suit,  are  the trustees  of the said temple.  They filed the suit  for  the recovery   of  the  plaint-scheduled  properties  from   the defendants  who are the archakas and the alienees from  them on  the ground that the said properties were the  properties of  the deity and that the defendants had no right  therein. They  also  claimed mesne profits for a period  of  3  years prior to the suit.  The defendants filed a written statement admitting the claim of the deity to the melvaram interest in the  properties  but  claimed that the  archakas  owned  the kudivaram therein and that some of the said properties  were validly transferred to the alienees. O.S.  No.  184 of 1945 was filed in the said  Court  by  the trustees of Sri Pongali Amman temple situated in the village of Vengambur for the recovery of the properties 350 mentioned  in  the  schedule attached to  the  plaint.   The defendants,  who  are the archakas and alienees  from  them, inter   alia,  pleaded  that  only  melvaram  in  the   said properties  was granted to the deity and that  the  archakas owned  the  kudivaram  therein and  that  they  had  validly alienated their interest in the said properties in favour of the alienees. O.S.  No.  185 of 1945 was filed in the same  Court  by  the trustees  of  Sri Varadaraja Perumal    temple  situated  in Vengambur  village .  The plaintiffs sought to  recover  the properties  mentioned in the schedule annexed to the  plaint from  the  archakas and the alienees from them on  the  same grounds and the defendants raised similar pleas.  It is  not necessary  to mention other defences raised in  the  written statements  filed in the three suits as nothing  turns  upon them in these appeals. The main issue in O.S. No. 183 of 1945, O.S. No. 184 of 1945 and O.S. No. 185 of 1945 was whether the inam grants made to the  three  temples  consisted of both  varams  or  melvaram alone. The  learned  Subordinate Judge tried the said  suits  along with  two  other  suits  and  delivered  a  common  judgment therein.   On the said issue he held in all the three  suits that  the  grants to the three deities  comprised  both  the varams.   He further held that the alienations made  by  the archakas prior to May 16, 1931, were binding on the trustees of  the  respective temples and that  the  alienations  made subsequent to that date were liable to be set aside.  In the result  the learned Subordinate Judge gave a decree in  each of   the  suits  for  possession  of   the   plaint-schedule properties except those covered by the alienations  effected before  May 16, 1931.  He also decreed mesne profits to  the plaintiffs  for a period of 3 years prior to the  suits  and also  subsequent profits from the date of the suits  to  the date  of  delivery of possession at the rate fixed  by  him. The  defendants in the said suits preferred appeals  to  the High Court of Madras, being Appeals Nos. 259, 260 and 385 of 1947.   The said appeals were heard by a Division  Bench  of the  said  High Court, consisting of Satyanarayana  Rao  and Rajagopalan, JJ.  The High Court agreed with the 351 trial  court  on the finding relating to the nature  of  the grants  to  the  temples, that is to say it  held  that  the grants  to  the temples comprised both the  varams,  namely, melvaram  and kudivaram.  The learned Judges, for the  first time,  though  there  was  no  pleading,  no  issue  and  no contention  in the trial Court, held that the archakas  were entitled  to have a portion of the said properties  allotted to  them towards their remuneration for the services to  the

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temples and gave a decree directing the division of the said properties  into  two  halves and putting  the  archakas  in possession of one half.  They did not disturb the finding of the learned Subordinate Judge in regard to the  alienations, that is they maintained the alienations made before May  16, 1931. Against the decree of the High Court in A.S. No. 259 of 1947 and A.S. No. 385 of 1947 both the archakas and the  trustees preferred appeals to this Court questioning the  correctness of the decree of the High Court in so far as it went against them.  Against the decree in A.S. No. 260 of 1947 no  appeal was  filed  by the archakas, but the trustees  preferred  an appeal questioning that part of the decree directing a  part of the properties to be put in possession of the archakas. Mr.  Desai and Mr. Tatachari, appearing for the archakas  in the  different  appeals, contended that  the  Courts  below, having  regard to the consistent and continuous  conduct  of enjoyment  as  absolute  owners of  the  properties  by  the archakas  spread  over a long period of  time,  should  have invoked  the doctrine of lost grant particularly when  there was  no  clear and convincing evidence of the terms  of  the grant.   Alternatively, they argued that the  Courts  should have  held, on a fair construction of the recitals found  in the  inam  statements  and  the  inam  register,  that  only melvaram was granted to the deity. Mr.  Viswanatha  Sastri, learned counsel for  the  trustees, contested  this  position.  He would say that  there  is  no scope  for  invoking  the  doctrine of  lost  grant  as  the recitals in the inam register and the inam statement,  which are of great evidentiary value, conclusively establish  that both the 352 varams were granted to the deity and that all the documents, or  most  of them, disclosing the conduct  of  the  archakas would  support the conclusion that both the varams  were  so granted to the deity. At  the outset it would be convenient to notice briefly  the scope of the doctrine of lost grant, as the learned  counsel for  the  appellants  have strongly  relied  upon  it.   The doctrine  of  lost  grant  with  its  limitations  has  been succinctly  explained by the Judicial Committee in  Sankara- narayana Pillayan v. H.R.E. Board, Madras(1).  The temple in that case had 4 kattalais.  Though the temple had a  general trustee,  each  of  the kattalais was in  the  charge  of  a special  trustee  or  trustees.  In regard  to  one  of  the kattalais  after meeting all the expenses there  remained  a surplus which the trustees claimed for their own benefit and in  fact they were utilizing the surplus for the benefit  of their  families.   It was contended by the  appellants  that they  were  the owners of the suit  properties,  which  were subject  only to a charge in favour of the kattalai for  the performance  of  the  worship according  to  the  prescribed scale.   The Judicial Committee, after noticing the  earlier decisions, observed:-               "The presumption, it was stated, of an  origin               in some lawful title which the Courts have  so               often  readily made in order to  support  pos-               sessory  rights  long  and  quietly   enjoyed,               arises  where  no  actual proof  of  title  is               forthcoming,  and the rule has to be  resorted               to because of the failure of actual  evidence.               In the present case, where there is ample  and               convincing  proof of the nature of the  grant,               the  object of the endowment and the  capacity               of   the   persons  claiming  the   user   and

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             enjoyment,  the  rule  can  hardly  have   any               application." In  the result the Judicial Committee held that the  proper- ties  were granted only to the deity and that  the  trustees had no claim to any surplus income.  The said principle  has been  accepted  by  this Court  in  Buddu  Satyanarayana  V. Konduru Venkatapayya(2).  There a question similar to (1) I.L.R. 1948 Mad. 585,605-606. (2) (1953) 1 S.C.R. 1001, 1003. 353 that  now  raised  was considered.   The  archakas  claimed, relying  upon  the doctrine of lost grant,  that  under  the original inam grant only the melvaram interest was given  to the deity.  Rejecting that contention, Das, J., speaking for the Court, observed:               "There is no doubt, on the authorities, that a               presumption of an origin in some lawful  title               may  in  certain  circumstances  be  made   to               support  possessory  rights long  and  quietly               enjoyed  where  no actual proof  of  title  is               forthcoming but it is equally well established               that  that presumption cannot ’be  made  where               there  is sufficient evidence  and  convincing               proof  of  the  nature of  the  grant  an  the               persons to whom it was made." The  basis  of this doctrine is clearly brought out  by  two judgments  of  the Judicial  Committee.   Lord  Buck-master, delivering  the judgment in Maginiram Sitaram v.  Kasturbhai Manibhai(1), observed :               "At  the lapse of 100 years, when every  party               to  the original transaction has passed  away,               and   it  becomes  completely  impossible   to               ascertain  what were the  circumstances  which               caused  the original grant to be made,  it  is               only  following  the policy which  the  Courts               always  adopt, of securing as far as  possible               quiet possession to people who are in apparent               lawful  holding of an estate, to  assume  that               the  grant  was lawfully  and  not  unlawfully               made."               Viscount Sumner in Mohamed Muzafar Ali  Musavi               v.  Jabeda  Khatun(2) said much  to  the  same               effect thus               "The  presumption of an origin in some  lawful               title, which the Courts have so often  readily               made  in order to support  possessory  rights,               long  and  quietly enjoyed,  where  no  actual               proof of title is forthcoming, is one which is               not a mere               (1)  [1921] L.R.49 I.A. 54.               51 Sup.  Court.-23               (2) [1930] L.R. 57 I.A. 125.               354               branch of the law of evidence.  It is resorted               to because of the failure of actual evidence."               It   is,  therefore,  clear  that   the   said               principle  can only be invoked where there  is               no  acceptable  evidence of the terms  of  the               grant. In these appeals the trustees filed copies of the relevant extracts of the inam register and the   statements filed  by the  ancestors of the  archakas during the inam  enquiry  in support of the contention that both the varams were  granted to the deity.  The evidentiary value of the recitals in  the inam register has been emphasized by the Judicial  Committee

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in more than one decision.  In Arunachalam Chetti v. Venkata Chalapathi Guruswamigal(1), the Judicial Committee expressed its  view on the evidentiary value of the recitals  in  inam register thus:               "It  is true that the making of this  register               was  for the ultimate purpose  of  determining               whether  or not the lands were tax free.   But               it must not be forgotten that the  preparation               of this register was a great act of state  and               its preparation and contents were the  subject               of   much  consideration   under   elaborately               detailed  reports  and minutes.  It is  to  be               remembered   that  the   Inam   Commissioners,               through  their officials, made enquiry on  the               spot,  heard evidence and examined  documents,               and, with regard to each individual  property,               the Government was put in possession not  only               of  the conclusion come to as to  whether  the               land  was tax free, but of a statement of  the               history  and  tenure of the  property  itself.               While their Lordships do not doubt that such a               report would not displace actual and authentic               evidence  in individual cases, yet  the  Board               when  such  is not available, cannot  fail  to               attach  the utmost importance, as part of  the               history  of the property, to  the  information               set forth in the inam register."               (1)   [1920] I.L.R. 43 Mad. 253.               355 In the latest decision of the Judicial Committee reported in Sankaranayana  Pillayan’s  case(1), it reiterated  the  same position  when it said: "The question arose in a recent case  before this Board with reference to a Madras inam [see Secretary of State for India v.  Vidhya Thirta Swamigal(2)], where it was held  that  the title  deeds  and  the  entries in  the  inam  register  are evidence  of the true intent and effect of  the  transaction and of the character of the right which was being recognized and  continued.   The entries in the inam register  and  the description   of  the  inamdar  therein  were  accepted   as indications  of the nature and quantum of the right and  the interest  created  in the land."This view  of  the  Judicial Committee  has been accepted and applied by the Madras  High Court in many decisions when it was called upon to decide on the  conflicting  claims of a trustee and a archaka  to  the properties  dealt with in the inam registers. The documents  relating to Sri Pongali Amman temple are Exs. P-2 and P-3.  Ex.  P-2 is the statement filed by an ancestor of the present archakas before the Inam Commissioner.  It is of  the  year  1862.  Ex.  P-3 is an extract  of  ,the  inam register.   As  observed  by  the  Judicial  Committee,  the entries  made  in  the said register are the  result  of  an elaborate  enquiry  based upon oral evidence,  on  the  spot enquiry and scrutiny of available accounts and records.  The inam  statement is only one of the pieces of evidence  which the Inam Commissioner might have taken into consideration in compiling the inam register.  The recitals in the  statement must,  therefore,  give Place to the recitals  in  the  inam register, though an attempt shall be made to harmonize them, if possible.  Before considering the recitals in Ex.  P-3 it is  necessary to bear in mind the common case i.e., that  it is  the case of both the archakas and the trustees that  Ex. P-3  deals  only  with the property that was  given  to  the deity.  But the dispute is as regards the extent of the (1)  I.L.R. [1948] Mad. 585.    (2) 1.L.R [1942]  Mad.  893,

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908 (P.C.). 356 interest  in the property that was given to the deity.   WaS it  only the Melvaram in the said property that was  granted to  the  deity or was it that both the varams  therein  were granted  to the deity.  Now let us give a close look to  the recitals  under the various columns in Ex.  P-3.  The  first major  head is "class, extent and value of inam".  The  said major head is divided into 7 sub-heads.  in col. 2 under the sub-head  "General  class to which the  inam  belongs",  the entry is "religious".  In col. 3 under the head "the  survey number and the name of the field or fields comprised in  the grant-dry, wet or garden", the particulars of the lands  are given.  This entry shows that except a small extent which is a  garden  the  rest is dry land.  These  details  are  more consistent  with  the grant being of both  the  varams  than being  of  mere melvaram.  If it is of melvaram  alone,  the quality  of the field is quite irrelevant.  Sub-heads  4,  5 and  6 show that the extent is about 18 acres and  99  cents and the assessment is Rs. 24-14.-5. These recitals leave the impression  that  the lane, was a dry land bearing  a  small assessment  of Rs. 24-14-5 and the, income  therefrom  could not  have been appreciable in those days.  The  second  main head is "description, tenure and documents in support of the inam".   The  entries under the various columns  under  this head  establish that the dry lands bearing an assessment  of Rs. 24-14-5 described in cols. 3. 4, 5 and 6 were granted as Devadayam   to  the  deity  Pongali  Amman  permanently   by Madurayar Paligar of Midura.  The of the grant is not known; but  even in the accounts of 1209 F. the name of  the  deity was entered the grantee . The third major head is "name  and relationship  of the original grantee and of subsequent  and present heirs-length of possession".  In Col. 13 and 15 the, name  of  the deity alone is given.  In Col.  16  under  the heading  "name  and age" and in Col. 17  under  the  heading "place  of residence" only the name of the deity  is  given. Below  the name of the deity the name of the Pujari  "Pujari Muttandi,  age 45" is given.  In Cols. 18 and 1 9 under  the heading   "relation   to  orginal  grantee   or   subsequent registered  holders"  and "surviving heirs  of  the  present incumbent" no entry is made.  Obviously no entries are  made under  these sub-heads, as the deity cannot have  relations. The mention of Pujari Muttandi in the 357 context of other entries indicates that he was in charge  of the  temple.  If his name was mentioned because he had  some interest in the land the other suitable entries in regard to his  relations would have been made under the relevant  sub- heads.  Indeed it is not the case of the archakas that  they have  some  interest in the melvaram.  If the  document  was concerned  only with the melvaram interest,  strictly  there was no place for the archaka in the document, for he had  no interest therein.  His name was mentioned only as he was the person  who was in de facto management of the properties  of the deity.  In Col. 21 under the heading "Deputy Collector’s opinion  and recommendation", the entry is "To be  confirmed permanently  to  the Pagoda so long as it is well  kept  up, subject  to the existing jodi of Rs. 3-1-7".  Under Col.  22 the   inam  is  confirmed  to  the  Pagoda.   A   reasonable interpretation of the recitals in this document leads to the only conclusion that the Inam Commissioner was dealing  with the  entire  interest in the land, the  particulars  whereof were  given therein.  There is no evidence that at the  time the  grant  was  made  the  archakas  or  any  others   were kudivaramdars.   But  it  is said that Ex.   P-2,  the  inam

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statement,  filed by the then archakas would establish  that what  was -ranted was only the melvaram.  There, in  Col.  2 under  the  head "Name of the inamdar entered in  dowle  and names of the present enjoyer" the following entry is found:               Pongaliamman  poosari Kuppaiyandi  Muthuveeran               as per paimash entry.  For fields Nos. 595 and               597  no poosari’s name is mentioned.   Present               (enjoyer) Pongaliamman poosari Muthandi." It  is  said  that  pujari is  shown  as  the  enjoyer  and, therefore, the deity has no interest in the enjoyment of the land.  The deity was obviously represented by the pujari who was  the  de  facto trustee.  He was in  possession  of  the property in his capacity as the de facto trustee.  In  those circumstances if the pujari of the temple is described as an enjoyer,  it can only mean that he was in possession of  the land  on  behalf of the temple.   Whatever  ambiguity  there might be in the said recital it is dispelled by the entry in Col.  12 under the head "Particulars of present  enjoyment", namely 358 "By  directly  cultivating  this land  selling  the  produce derived  therefrom  and  applying the sale  proceed  to  the service of the deity.   and my agnates have been  performing pooja and enjoying the said land according to the conditions of  the  grant".   This  entry  is  couched  in  clear   and unambiguous terms.  It describes the nature of the enjoyment of  the  land by the archaka; it clearly says  that  he  was cultivating the land, selling the produce and from the  sale proceeds  he  was  doing  the  services  to  the  deity   in accordance  with the terms of the grant.  If the  deity  was entitled only to the melvaram, this recital is  inconsistent with it.  The recital indicates that the entire land was the subject-matter of the grant in favour of the deity and  that the produce from that land was utilized for the services  to the deity.  Strong reliance is placed upon the entry in col. 13 under the head "Income derived from the manibam;  whether sarvadambla  or jodigai, if jodigai, how much".   The  entry is, "Income Rs. 24-14-5; Jodigai Rs. 3-1-7." Basing upon the said  entries the argument is that Ex.  P-3 shows  that  the assessment  on  the  land  was  Rs.  24-14-5  and  Ex.   P-2 indicates  that the same amount was the income derived  from the inam and, therefore, what was granted in inam could have been  only the assessment i.e., Rs. 24-14-5.  This  argument is farfetched and based on a slender foundation.  One of the main  objects of the inam enquiry was to  ascertain  whether the  alienated lands were free of tax or not.   The  archaka who was in possession of the land on behalf of the deity had to give information as regards the tax payable in respect of the land in his possession.  In that context the  expression "income  derived  from  the  manibam"  can  only  mean   the assessment  fixed  on  the land.  After  stating  that  full assessment  was only Rs. 24-14-5 the archaka stated that  he was  not paying the entire amount, but was paying  only  the jodigai  of Rs. 3-1-7.  So understood the said recitals  fit into the scheme of other recitals in the said statement  and those  found in Ex.  P-3.  A similar argument  was  advanced before  this Court in Buddu Satyanarayan’s case(1)  and  was rejected.  Das, J., observed at p. 1006 thus: (1) [1953] S.C.R 1001 359               "Apart  from these points of  distinction  the               decision  relied on by the  learned  Attorney-               General  appears  to  us  to  be  of  doubtful               authority.   As will appear from the  passages               quoted  above, the decision rested mainly,  if

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             not  entirely, on the fact that the amount  of               assessment  and the amount of income were  the               same  and  the conclusion was drawn  that  the               Inam  grant  comprised  only  of  the  revenue               assessment, i.e., of melvaram rights.  We  are               unable to follow the reasoning." We, therefore, hold that, from the recitals in the said  two documents,  what  was granted to the deity was of  both  the varams. Learned  counsel  for  the archakas  relied  upon  the  long possession  and enjoyment of the suit lands by the  archakas and their ancestors in support of their contention that  the melvaram  alone could have been granted to the deity.   Long enjoyment is also consistent with an arrangement that  might have  been  entered into between the grantor  and  the  then functioning  archaka  or  archakas  having  regard  to   the conditions  prevailing  then.  The lands granted  were  com- paratively  of  small extent and they were  dry  lands.   In those  days  the income from the said lands must  have  been very  insignificant.  There was no trustee for  the  temple. In  those circumstances it is, more likely that the  grantor would have put the land in the possession of the archaka  so that  he might, from and out of the produce from  the  land, maintain   the  temple,  perform  the  puja  and  meet   the expenditure connected with the puja and also pay himself the remuneration  for  his services to the temple.  That  was  a convenient  arrangement  which was adopted in  many  of  the small  temples in that part of the country.   This  practice was  recorded  with  clarity by the  Madras  High  Court  in Narayanamurthi  v.  Achaya Sastrulu(1).  In dealing  with  a similar argument the learned Judge observed:               The  evidence of user and  enjoyment,  however               long uninterrupted and unquestioned, would  be               evidence of the grant only iN the absence of               (1)   A.I.R [1925] Mad.411,412-413-               360               any reliable or cogent evidence with regard to               the  terms of the grant itself or in the  case               of any ambiguity in the grant.  It seems to be               clear that almost very recently the suit lands               yielded  only  just what  was  sufficient  for               nitya  naivedyam  or the  daily  worship.   No               doubt  in such a state of things not only  the               persons  who established the temples and  made               the  endowments but succeeding generations  of               worshippers would have allowed the archakas to               cultivate  the  lands  and  take  the   income               performing  the puja as it was  obviously  the               most  convenient  mode of  arranging  for  the               worship  of  the deities and  the  payment  of               remuneration of the archaka service."               "But  when the income accruing from the  lands               came  to be considerable and the archakas,  by               reason of old habits and following their fore-               fathers, claimed the lands and surplus profits               therefrom to be their own, it was only natural               that  the  worshippers should  take  steps  to               secure    the   surplus   income    for    the               institutions." These  observations  are  very  apposite  and  they  clearly describe  the circumstances under which the archakas of  the temples  were  allowed  to be in possession  of  the  temple lands.   If that was the situation under which the  archakas came  into possession of the lands, they were  certainly  in the  position  of de facto trustees and they  could  not  by

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mortgaging or otherwise alienating the properties claim  any rights in derogation of the title of the deity.  Indeed  the documents on which the learned counsel relied contain  clear and  unambiguous admission on the part of the archakas  that the land itself was the property of the deity.  Exs.   P-12, P-13, P-14 and P-15 are copies of mortgages executed by  the archakas.    Under  these  documents  the  land   in   their possession was mortgaged and it was described as  paditharam Manyam.   They  also  disclosed  hat  the  paditharam  paddy directed  to  be paid to the temple was more than  the  kist payable thereon to the Government.  In the prior proceedings i.e., applications preferred by the                             361 archakas  for declaring the temples as excepted ones,  there was  no  claim that the melvaram alone was  granted  to  the deity.   In other proceedings the archakas claimed that  the lands were service inams, but they did not come forward with the  present  plea  that melvaram only was  granted  to  the deity.  Further, pattas for the suit lands were  transferred without  any  objection of the archakas in the name  of  the deities  in 1939 and the archakas also paid contribution  to the  Madras Hindu Religious Endowments Board on  tile  basis that both the varams belonged to the deity.  The conduct  of the archakas, therefore, is consistent with the recitals  in the  inam  register, namely, that what was  granted  to  the deity was the land i.e., both the varams, and that they  had been  put  in possession and enjoyment of the said  land  in their capacity as archakas and de facto trustees. Learned counsel for the appellants relied upon an order made by  A.R.C. Westlake, Collector of Coimbatore, on  April  14, 1941, wherein he held that only melvaram was granted to  the deity.   That  order  came to be made  under  the  following circumstances.   The  trustees appointed by  the  Coimbatore District  Temple Committee filed an application  before  the Revenue  Division Officer under s. 44-B11(a) of  the  Madras Hindu  Religious  Endowments (Amendment) Act,  1934,  for  a declaration  that the alienations of portions of  inam  land attached to the temple were null and void and for resumption and regrant of the same to the deity.  One of the issues  in the  application was whether the inam comprised melvaram  or both melvaram and Kudivaram.  The Revenue -Division  Officer held  that the inam comprised both the varams.   On  appeal, the  Collector  came  to the  contrary  conclusion.   But  a perusal  of  the order shows that his conclusion  was  based upon  pure  surmises.  The Collector did not  refer  to  any document or evidence for his conclusion.  The trustees filed a  suit in the Court of the Subordinate  Judge,  Coimbatore, for  a  declaration  that the inam grant in  favour  of  the plaint   temple  comprised  both  the  varams  The   learned Subordinate  Judge  held  that s. 44-B of  the  Act  had  no application  as  the grant was to the deity and  was  not  a service inam.  The result of this litigation was that  there was no final decision on the 362 question whether the grant was of both the varams or only of the melvaram.  These proceedings cannot, therefore, be    of any  evidentiary value in this case.  On a consideration  of the  entire  evidence we agree with the  conclusion  arrived at  by the High Court that the grant to the deity  comprised both the varams in the suit lands. Now  coming  to the appeals relating  to  chowleswara  swami temple,  the factual and legal position is exactly the  same as  in  the  case of Pongaliamman temple  Ex.   P-2  is  the statement  made  before the Inam Commissioner  by  the  then archaka and Ex.  P-3 is the extract from the Inam  register.

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Under  the  relevant entries in the  inam  register,  survey numbers, extent, quality and the assessment of the  subject- matter  of  the grant are given.  The land is  described  as Devadayam and is stated to have been granted for the support of the pagoda of Chowleswaraswami.  The nature of the  grant is  described  as permanent.  The date of the grant  is  not known.  The grantor’s name is given as Maduraiyar Paligar of Madura.   The  name  of the original  grantee  is  given  as Chowleswaraswami.   The grant of the land described  earlier is confirmed permanently to the pagoda as long as it is well kept  subject to the existing jodi of Rs. 24-8-2.  The  only mention of archaka is in col. 17 under the head "Particulars regarding  present  owner"  and  the  entry  thereunder   is "Chowleswaraswami,  stanika Muttaiyan".  The  other  columns where  the  relationship  of  the  present  owner  with  the previous  owners is expected to be recorded are  left  blank for the obvious reason that the said columns are  irrelevant in  the case of a deity.  The archaka’s name in addition  to the  deity is mentioned as he was in possession of the  land in  his  capacity  as  de facto  trustee.   The  deity  must necessarily  have to be represented by somebody and that  he can only be the stanika who was managing the temple and  its properties.   The relevant entries in the inam  register  do not  countenance any contention that the  melvaram  interest only  in the land was granted and that was confirmed to  the deity.   If  the  melvaram was  granted  or  confirmed,  the recitals would have been different.  The corresponding  inam statement is Ex.  P-2.  The entries are practically  similar to those found in Ex.  P-2 relating to 363 Pongaliamman  temple  with some slight variations.   Col.  2 makes a clear distinction between ownership of the land  and enjoyment.   The owner is shown as Chowleswaraswami and  the "present"  enjoyer is shown as Chowleswaraswami’s.  stanika. The nature of the enjoyment is described in col. 2 thus:               "The  said  lands  are leased  out  for  varam               cultivation  and I cultivate the  same  myself               some times and the income (masul) therefrom is               enjoyed  by  me and co-sharers  (Pangali)  and               used for Swami Viniyogam." It  is  manifest  from this recital that the  land  was  the subjectmatter  of  the grant and the  income  therefrom  was derived  either by direct cultivation or by leasing out  the same,  and  the said income was enjoyed by the  archaka  and used  for  viniyogam.   The point to be noted  is  that  the predecessorin-interest to the present archaka admitted  that the  produce from the land was utilized for the services  of the  deity.   The said admission is  inconsistent  with  the allegation that the grant was only of melvaram.  The entries in   col.  13  are  similar  to  those  contained   in   the corresponding Ex.  P-2 relating to Pongaliamman temple, and, for   reasons  already  given,  they  do  not  support   the contention  that  the  assessment of  Rs.  74-1-5  was  only granted to the deity. A combined reading of these two documents leads to the  only conclusion  that both the varams were granted to the  deity. Just as in the case of Pongaliamman temple so in the case of Chowleswaraswami  temple,  the  subsequent  conduct  of  the archakas  belie their assertion that only melvaram  interest in the land was granted to the deity.  Exs.  D-1 of 1867, D- 2  of  1868,  D-3 of 1870 and D-4 of 1883 are  some  of  the mortgages  executed  by the  archakas  ,of  Chowleswaraswami temple.   Exs.   D-5, D-6 and D-7 are sales.  In  all  these documents  the  property is  described  as  Chowleswaraswami manyam.   If really the kudivaram belonged to the  archakas,

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they would not have described the land they were  alienating as Chowleswaraswami manyam.  The description of the property as  that  of  the  deity is consistent  with  the  title  of kudivaram also being in the deity.  Further, as in the other case, the pattas were 364 transferred  in the name of the deity in 1939,  the  contri- butions  were paid to the Hindu Religious Endowments,  Board on the basis that the entire interest in the lands  belonged to  the deity and that in other proceedings  the  archakas’s case  was  not that the grant to the deity was only  of  the melvaram but the lands were service inam lands.  Though  the archakas   dealt  with  the  properties  by  mortgaging   or otherwise alienating them they never denied the title of the deity.   For the foregoing reasons we hold that even in  the case  of Chowleswaraswami temple the original grant made  to the deity comprised both the varams. In  regard to Sri Varadaraja Perumal temple, no  appeal  was filed  by the archakas and they allowed the judgment of  the High Court in regard to the title to become final.  Nothing, therefore, need be said on the question of title of the land in respect of this temple. Coming  to the cross-appeals filed by the  trustees  against that  part of the decree of the High Court apportioning  the property  of the deity between the deity and  the  archakas, the  question raised is whether the High Court, having  held that the title to the suit property vested in the deity, had jurisdiction  to compel the trustees of the temples  to  put the  archakas in possession of specified extent of  property towards their remuneration.  The High Court observed thus:               "On  these findings, it is no doubt true  that               the  decree  in favour of the  plaintiffs  for               possession of the properties on behalf of  the               deity   has  to  be  upheld  subject  to   the               consideration set forth below." Then it proceeded to consider whether any allocation of land should be made between the archakas and the trustees.  After noticing the relevant decisions on the subject, it  observed thus: .lm15 "These  decisions  are practically uniform  except  for  the decisions..........  (in)  A.  S.  No.  2  3  7  of  1950(1) and............  (in) Venkatadri v. Seshacharlu(2) and  have upheld the allocation (1)  Brahnyya v. Rajeswarawami temple A.I.R. 1953 Mad. 580. (2)  I.L.R. 1948 Mad. 46. 365               of   lands  between  the  archakas   and   the               trustees, the proportion however varying  with               the extent of the lands and the amount of  the               income.   None  of  the  Judges  were  of  the               opinion  that  the  arrangement  should  be  a               permanent  and an unalterable one and it  must               naturally be subject to revision or alteration               according to the circumstances of the case  at               the instance not only of the trustees but also               at  the  instance of the archakas, if  it  was               found  that the allocation was working to  the               detriment  of  either the archakas or  of  the               temple."               It concluded:               "We think, therefore, in these cases, the best               arrangement  would  be to  allocate  half  the               lands   in   each  of  the   suits   for   the               remuneration  of the archakas, to  be  divided

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             equally,  having  regard to the  wet  and  dry               extents,  and leave the remaining half to  the               trustees,  who  have to meet the cost  of  the               daily  worship and accumulate the  surplus  in               their hands as it belongs to the deity." On principle, in our view, the conclusion arrived at by  the learned  Judges  of the High Court  is  unsupportable.   The suits  were based on title and the relief asked for was  the eviction  of  the archakas from the suit property  as  they, according  to  the  plaintiffs had no  title  to  remain  in possession.  The archakas raised the plea that the title  of the  ,deity  was confined only to melvaram  in  the  plaint- schedule  lands  and that they had title to  the  kudivaram. Both the courts confirmed the title of the deity to both the interests and negatived the title of the defendant.  In  the circumstances  the Court has no option but to  deliver  pos- session to the plaintiffs who had established their title to the  suit properties.  In a suit for framing a scheme for  a temple a court may in an appropriate case put the archaka in possession  of  a portion of the temple  lands  towards  his remuneration  for services to the temple; but these are  not suits for framing a scheme.  That apart, there is absolutely no material either in the pleadings or in the evidence to 366 make  any such apportionment, for the allotment of a  parti- cular  share  to  the archaka would depend  upon  the  total income  from the lands, the value of the  articles  required for  the  worship,  the amount  of  reasonable  remuneration intended to be provided and other similar circumstances.  An allotment   cannot  possibly  be  made  on  the   basis   of allocations made in the circumstances and facts peculiar  to other  cases.   Indeed, this Court has already  expressed  a clear  opinion  on this aspect of the case in  Buddu  Surya- narayana’s case(1).  Therein, Das, J., said at p. 1008 thus:               In  a proceeding for the framing of  a  scheme               relating to a temple it may be permissible  to               take  into  account the claims, moral  if  not               legal,  of the Archakas and to make some  pro-               vision for protecting their rights, but  those               considerations appear to us to be entirely out               of  place in a suit for ejectment on proof  of               title." With  respect we entirely agree with the said  observations. It  follows  that  the High Court went wrong  in  making  an allocation  of  the  lands  between  the  trustees  and  the archakas in a suit for ejectment. Learned counsel for the archakas made an impassioned  appeal that we should give a direction to the authorities concerned to  make  an apportionment of the properties  on  the  lines suggested  by  the  High Court, having regard  to  the  long enjoyment  of  the  temple  lands  by  the  archakas.   Long enjoyment  of  the  temple lands by the archakas  is  not  a peculiar  feature of this case.  The  authorities  concerned have  made  suitable arrangements for  remuneration  in  the ,case of other temples and we have no doubt that they  would make a reasonable provision for the archakas in the  present case also for their remuneration in accordance with law. In the result, Civil Appeals Nos. 648 and 650 of 1960  filed by  the  trustees  are allowed but,  in  the  circumstances, without  costs.  Civil Appeal No. 649 of 1960 filed  by  the trustees is also allowed without costs except as against the               (1)   [1953] S.C.R. 1001                                    367 14th   respondent.   The  said  appeal  against   the   14th respondent is withdrawn on the ground that his interest as a

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mortgagee is not now subsisting and the said appeal  against the  14th respondent is dismissed as withdrawn but,  in  the circumstances,  without costs.  Civil Appeals Nos.  651  and 652 of 1960 filed by the archakas are dismissed with  costs. One hearing tee.               Ordered accordingly.