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CASE NO.: Appeal (civil)  3879 of 2001

PETITIONER: Chokalingaswami Idol thr. R.N.Pillai

RESPONDENT: Gnanapragasam (Dead) By Lrs

DATE OF JUDGMENT: 13/03/2008

BENCH: TARUN CHATTERJEE & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 3879 OF 2001

HARJIT SINGH BEDI,J.

1.              The plaintiff is the appellant in this appeal.  It arises  out of the following facts. 2.              The appellant idol was installed by one Mirasu  Nainar Pillai, the great grandfather of the trustee R.Nambla  Pillai in the year 1872.  After the death of Mirasu Nainar  Pillai his son Sattanatha Pillai and after his demise his son  Ramalingam Pillai was performing the ritual pooja.   Ramalingam Pillai executed a registered settlement deed  dated 21st September 1930 creating a charge over the  property mentioned in the deed for meeting the expenses of  the pooja for the deity.  In this settlement deed Ramalingam  Pillai clearly recited that the idol had been installed by his  grandfather and that the family had been carrying on the  pooja as trustees.  It also appears that Ramalingam Pillai  had constructed two houses in the land in question, one for  his residence and the other for rent and that he was  maintaining the temple and idol as per requirement from  the income received from the properties.  The appellant also  claimed that as per the record, the land belonged to the  temple and that the respondents were taking steps to assign  the vacant land to a society of ex-servicemen which was  bent upon encroaching on the suit land.  The appellant  accordingly filed a suit for declaration and permanent  injunction claiming title to the property as belonging to the  idol and that the respondents were not justified in seeking  to encroach upon it.  The first defendant i.e. the State of  Tamil Nadu represented by the District Collector in its  written statement controverted  the plea of the appellant  and alleged that the land did not belong to the idol and that  the appellant had no right to occupy the same as it was  poramboke land  belonging to the Government.  The plea of  the appellant that it was in possession of some of the vacant  land was also controverted by the second and third  defendants Gnanapragasam Kombiah Thevar respectively   whereas the fourth defendant, Shanmugathammal, took the  plea that he  was in possession of the land in question on  payment.  The Second Additional District Munsif,  Thirunelveli decreed the suit as prayed.  Aggrieved thereby  the second defendant Gnanapragasam alone preferred an  appeal in the sub-court, Tiruveneli.   The appeal was  allowed, and the suit dismissed holding that the suit  property was Government poramboke land and as such the  idol had no right over the suit property.  Aggrieved thereby

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the plaintiff-appellant went before the High Court in second  appeal.  The High Court in its judgment dated 10th January  2001 observed that the finding of the first appellate court  that the suit property was Government poramboke and as  such the plaintiff-appellant had no right over the suit  property and that that there was no evidence to show that  the land was indeed the land covered by the settlement  deed and concluded that the finding recorded by the  appellate court was fully justified.  The High Court also  noted the argument raised by the appellant that as  defendant No.1 i.e. the State Government had not preferred  any appeal against the order of the Munsif, the first  appellate court was not justified in interfering in the matter  at the instance of the private defendants and dealt with this   apparent anomoly  by observing: "Even though the first defendant, the  Government has not preferred any appeal, it  is the duty of the Court to find out, on  analysis of oral as well as documentary  evidence, whether the plaintiff has got title to  the suit property.  The plaintiff has come  forward with the suit for declaration of title  and injunction.  So, the burden is heavily on  the plaintiff to establish the title.  The  documents produced prove that only the  Government is the owner of the suit property  and the plaintiff has no manner of right.  On  analysis of such documentary evidence, the  first appellate court has come to the  conclusion that the plaintiff has no manner  of right over the suit property.  The Court is  bound to analyse the evidence and decide the  case of the plaintiff when the plaintiff has  sought for the relief of declaration and  injunction.  So, it cannot be stated that since  the first defendant, Government did not  prefer any appeal, the first appellate court  was not bound to decide the title in respect of  the suit property.  The first appellate court,  on analysis of the evidence has clearly found  that the documents filed by the plaintiff did  not establish that the plaintiff is entitled to  the suit property and as such the finding of  fact on analysis by the first appellate court is  perfectly justified."

3.              Having held as above, the High Court then went on  to consider the evidence on record and concluded that the  land in question was Government poramboke land and that  the other defendants were mere tenants thereon and that it  had no hesitation in holding that the "suit property is a  Government poramboke land and the plaintiff has no manner  of right over the suit property and the finding of the first  appellate court is perfectly justified."  The appeal was  accordingly dismissed. 4.              The only issue raised by the learned senior counsel  for the appellant is that in view of the findings of the trial  court with regard to the ownership of the land against the  defendant No.1 i.e. the State Government, no appeal had been  filed by the State Government and an appeal had been  prepared by only one of the private co-defendants who was  allegedly a lessee of the land in question and in the light of  this situation it was not permissible for the first and second  appellate courts to hold in favour of the State Government and  against the plaintiff-appellant.  We find merit in this plea.  In

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paragraph 16 of the judgment that we have quoted above, the  High Court was cognizant of the fact that it was perhaps over  stepping its jurisdiction in the matter but chose to circumvent  the requirement of law in the belief that it was justified in  doing so as  the plaintiff-appellant was attempting to swallow  Government property.  We are of the opinion, however, that  the State Government had accepted the judgment of the trial  court as no appeal had been filed by it.   We accordingly allow  the appeal, set aside the judgments of the first appellate court  and the High Court dated 21st November 1988 and              10th January 2001 respectively and restore the judgment of  the trial court.  There will be no order as costs.