C.M.A.No.359/2014 (RR-3 amended vide Order of Court dt.28.07.2017 made in CMP No.12034/2017 in CMA NO.359/2014)
1.Tamilvel
2.The Tahsildar, Taluk Office, Avinashi.
3.The District Collector, Collectorate Office, Tiruppur.
PRAYER IN C.M.A.No.359/2014:- Appeal filed under Order XLIII Rule 1 (u) of Code of Civil Procedure, to set aside the decree and judgement in A.S.No.53 of 2011 dated 08.02.2013 on the file of Subordinate Court, Thiruppur reversing the decree and judgement in O.S.No.81/1996 dated 23.12.2010 on the file of District Munsif Court, Avinashi.
PRAYER IN C.M.A.No.360/2014:- Appeal filed under Order XLIII Rule 1 (u) of Code of Civil Procedure, to set aside the decree and judgement in A.S.No.54 of 2011 dated 08.02.2013 on the file of Subordinate Court, Thiruppur reversing the decree and judgement in O.S.No.353/1996 dated 23.12.2010 on the file of District Munsif Court, Avinashi.
For Appellants : Mr.M. Muthappan (in both Appeals) For RR-1 : Mr.Nithyanandam (in both Appeals) For RR-3 : Mr.M.Venugopal (in A.S.No.359/2014) Special Government Pleader (CS) COMMON JUDGEMENT These appeals have been filed by the appellants against the orders of remand passed by the Appellate Court under Order 41 Rule 23 of Civil Procedure Code.
2. The respondents filed two suits in a representative capacity in O.S. Nos. 81 & 353 of 1996. O.S. No. 81 of 1996 was filed by Ramasamy Gounder and three others seeking a declaration of the title of the Mariamman Temple at Devampalayam and for consequential injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit properties by the said Temple. Initially O.S.No.81/1996 was filed against the three defendants viz., (i) Ramasamy (ii) Shanmugham and (iii) the Revenue Divisional Officer, Tiruppur. The defendants 1 and 2 alienated the property in favour of third parties during the pendency of the suit in O.S.No.81/1996. Contending that the suit property has been alienated by creating a sale deed dated 15.07.1996 in favour of third parties, the subsequent suit in O.S. No. 353 of 1996 was filed by impleading the purchasers. But, the prayer in both the suits are same. The facts that led to the filing of the suits are narrated in the plaint as follows.
3. An extent of 8.62 acres in S.No.238, Devampalayam Village, Avinashi Taluk was granted to the Poojaris for performance of service to Devampalayam Mariamman Temple. The defendants 1 and 2 in O.S. No. 81 of 1996 are the legal heirs of the previous Poojaris of the temple in whose favour patta was granted under the Tamil Nadu Minor Inams Abolition and Conversion into Ryotwari Lands (Act 30 of 1963). The third defendant in O.S. No. 81 of 1996 was the competent authority under the Act to initiate proceedings against the defendants 1 and 2, for having failed to comply with the conditions imposed while granting patta. According to the plaintiffs, the lands being minor Inam lands, under Act 30 of 1963, suo motu enquiry was initiated by the settlement Tahsildar, Gobichettipalayam. The settlement Tahsildar has granted patta in favour of Palanipandaram and Kuppapandaram, ancestors of the defendants 1 and 2 under Section 8 (2) (III) of the Act. According to the plaintiffs, patta was granted to the ancestors of the defendants 1 and 2 subject to an option that they have to either pay the amount equal to twenty times the difference between the fair rent and the kist payable in respect of the land and get the land discharged from the service or to hold the lands with an obligation to render service. The ancestors of the defendants 1 and 2 did not discharge their obligation as per Section 21 of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act. If the amount is not paid, then they should continue to perform the service. The order also prescribed a period of six months within which the amount has to be paid. Claiming that the legal representatives of the grantees were performing the service till 1989 and thereafter they stopped the performance of the service and thereafter, the villagers have been in possession of the property, the suit in O.S. No. 81 of 1996 was filed for declaration of the title of the Temple and for consequential injunction.
4. The defendants in both the suits entered appearance and resisted the suit claim contending that the condition imposed in the order granting patta dated 03.11.1966 has been complied with and the amount directed to be paid by the grantees has already been paid. Therefore, the land is being enjoyed by the grantees without the liability to do service. It was also contended that the suit is not maintainable in view of the provisions of Section 21 of the Act.
5. The learned trial Judge heard the suits on the preliminary issue regarding the maintainability raised on behalf of the defendants. It was contended that the suit is maintainable in view of the judgement of the full Bench of this Court in Srinivasan and six others .Vs. Sri Madhyarjuneswaraswami, Pattaviathalai, Tiruchirapally District by its Executive Officer at pettavaithalai and five others reported in 1998 (1) CTC 630. The defendants would however contend that the said judgement of the full Bench of this Court would not apply to the present case. The plaintiffs are not questioning the grant of patta and they were also not setting up an independent title. It is the sole contention of the plaintiffs that the defendants have lost their right to be in the possession of the property because of the non performance of the service in the Temple. The trial Court on a reading of Section 21 of the Act held that whether there was a discontinuance of the service or whether the patta could be cancelled for the said discontinuance and the land be reassumed to the Temple or questions within the jurisdiction of the competent authority under Section 21 of the Act. On the said conclusion, the learned trial Judge dismissed the suit on the ground of maintainability. As against the said dismissal, the plaintiffs preferred two appeals in A.S. Nos. 53 and 54 of 2011 before the Appellate Court viz., the Subordinate Judge, Tiruppur.
6. The learned Subordinate Judge, relying upon the judgement of the full Bench of this court, concluded that the suit is maintainable and the Civil Court can go into question of discontinuance of service or resumption of the land to the temple. Upon the said conclusion, the learned Subordinate Judge set aside the Judgment of dismissal passed in the suits and remitted the suits to the trial Court to enable the trial Court to go into the other issues on merits. It is this decision of the learned Subordinate Judge, Tiruppur that is challenged in these appeals.
7. I have heard Mr.M.Muthappan, learned counsel appearing for the appellants, and Mr.N.Nithyanandam learned counsel appearing for the respondents/plaintiffs. Mr.M.Venugopal, learned Government Pleader appearing for the 3rd respondent/Revenue Divisional Officer. Though the Executive Officer of the Mariammankoil, Devampalayam Temple has been served, he has not chosen to enter appearance through counsel.
8. Mr.M.Muthappan, learned counsel for the appellants would vehemently contend that the Appellate Judge was wrong in concluding that the full Bench of this Court in Srinivasan and six others .Vs. Sri Madhyarjuneswaraswami, Pattaviathalai, Tiruchirapally District by its Executive Officer at pettavaithalai and five others reported in 1998 (1) CTC 630 would apply to the facts of the present case. He would invite my attention to the provisions of Section 21 of the Act to contend that the said Section provided for a machinery and procedure for deciding as to whether the service holders are bound to continue the service and as to the effect of such discontinuance. Rule 19 of the Rules, framed under the Act, prescribes elaborate procedure for an enquiry to be conducted under Section 21. Therefore, according to the learned counsel, unless appropriate authority authorised under the special enactment concludes that the service holders were liable to continue service or the discontinuance would result in resumption of lands, the suit for declaration of title of the Temple is not maintainable.
9. Per contra, Mr.Nithyanandam, learned counsel appearing for the plaintiffs/contesting respondents would contend that the plaintiffs have not questioned the very grant of patta. It is their categorical case that the defendants who are only the service holders and the patta granted in 1966 being a conditional patta subject to the performance of the service, they lost their rights to continue in the possession of the property, because of the discontinuance of the service. Therefore, according to him, since, the title of the property is not in dispute, the suit filed by the plaintiffs would be maintainable.
10. On the above rival contentions, the following point arise for determination in these appeals.
1.Whether the suits as framed seeking a declaration of title of the Temple on the ground that the service holders were granted patta subject to a condition to render service which they failed to perform?
11. The applicability of Section 21 of the Act to the facts of the case is not in dispute. The contention of the defendants is that patta was granted by the Authorised Officer on 02.11.66 subject to a condition that they will either pay the amount equal to 20 times of rent fixed by the Tahsildar or the land revenue due on that land. If such payment is made, the land will be discharged from the condition of the service, or in the alternative, the service-holder will continue to render the service subject to the provisions contained in sub sections (1), (2), (6) and (7) of Section 21 of the Act. The order granting patta also provides for exercise of option either to pay the amount or continue the service within a period of six months from the date of the order.
12. According to the defendants/appellants they had paid the amount as fixed by the Tahsildar and therefore, the land is discharged from the conditions attached to it and therefore the suit filed by the plaintiffs for declaration of the title of the temple is not maintainable.
13. The grievance of the defendant is that said claim has not been gone into by the trial court. No evidence has been let in either before the trial Court or the Lower Appellate Court on the merits of the rival contentions. Section 21 of the Act which deals with the service Inams, provides as follows:-
Section 21 imposes an obligation on the service holder to continue to render service after the appointed day. The application of Section 21 is subject to the provisions of sub Section (3), which gives an option to the service holder to either pay the religious institution the amounts specified under sub Section (4) and on such payment have the obligation to render service discharged or to hold the land and continue to render service subject to the provisions contained under sub-sections (1) (2), (6) and (7). Sub Section (5) provides that when the service holder has exercised his option to pay the amount specified in sub-section (4), the tasdik allowance referred to in sub-section (6) in respect of the period subsequent to the date of the exercise of such option shall be the absolute property of the institution and the institution shall be at liberty to make such arrangements as it thinks fit for the performance of the service. Sub Section 7 provides that the service holder who has not exercised his option to pay the amount but so long as the service holder renders the service, he shall be entitled to occupy permanently the lands in respect of which he is entitled to a patta under Section 8, subject however, to the payment of the assessment fixed in respect of such lands.
Section 21 makes it clear that a procedure is prescribed under the Act itself to decide as to whether the service holder has in fact failed to render service and as a result of such failure, the right to occupy the land vested in by grant of patta. Rule 19 of the rules contemplate the procedure for the enquiry to be conducted under Section 21(7)(b). The Revenue Divisional Officer of the revenue division has been appointed as an authorised officer and elaborate procedure has been prescribed under the rules to conduct enquiry regarding the failure on the part of the service holder to do the service to the religious institutions. A combined reading of Section 21 as well as Rule 19 rules framed under the Act would show that the Act contemplates a particular procedure for arriving at a decision as to the right of the service holder to be in occupation of the lands if the patta had been granted to him with the condition of performance of service. For the present, I am not going into the truth or otherwise of the claim of the defendants that they had paid the money payable under sub Section (4) of Section 21 and therefore, the land vested them absolutely. Since, it is the plaintiff's who plea that the defendants had not exercised their right to pay the amount or performed the service to the religious institution, I am proceeding on the assumption that the plaintiff's pleadings are correct. When a particular procedure is provided under particular enactment in deciding a particular issue, it is settled law that it can be done only in such a manner as contemplated. Section 46 of the Act provides for finality of the orders passed by the authorities.
14. The Lower Appellate Court, in my considered opinion, has not adverted to the provisions of Section 21 of the Act. The Lower Appellate Court has relied upon the full Bench of this Court Srinivasan and six others .Vs. Sri Madhyarjuneswaraswami, Pattaviathalai, Tiruchirapally District by its Executive Officer at pettavaithalai and five others reported in 1998 (1) CTC 630. The said full Bench decision dealt with Sections 43, 46 & 47 of the Act and held that Civil Court has jurisdiction. The issue that was before the full Bench was as to whether the rival claimant can seek declaration of his title after the grant of patta under the enactment by the settlement officer. While answering the said question, the full Bench relying upon the decision of the Hon'ble Supreme Court in Sri Lal Sri Sivaprakasa Pandara Sannadhi Avargal .V. Smt.T.Parvathi ammal & Others had concluded that such a suit will be maintainable. But, in the case on hand, the plaintiffs are not claiming any rival title, the plaintiffs are admitting the grant of patta as well as the nature of patta, but it was claimed that view of the non performance of the service the land will vest in the Temple. Unfortunately for the plaintiffs such vesting is not automatic. It is dependent on a decision being rendered by an officer authorised under the Act to go into the question of non performance of the service as well as the dis-qualification incurred by the service holder to hold the land due to non-performance. Therefore, in my considered opinion, the Lower Appellate Court was not right in holding that the suit is maintainable. Unless the non performance is held to have resulted in the service holders being dis-entitled to hold the property and their right is declared to cease and determine as provided under Section 21(7)(b) of the Act by the Authorised Officer, after an enquiry conducted as per the Rule 19 of the rules, the patta granted on 02.11.66 will continue to be valid and the plaintiffs cannot seek declaration of the title of the religions institutions on the assumption that the non performance of the service had resulted in the right of the service holders being determined. Therefore, the trial Court was right in dismissing the suit is not maintainable.
15. In view of the above discussion, these appeals are allowed, the order of remand passed by the Lower Appellate Court in A.S.Nos.53 & 54/2011 dated 08.02.2013 in O.S.Nos.81 & 353/1996, on the file of the Subordinate Court, Tiruppur is set aside and the judgement and decree of the trial Court holding that the suits are not maintainable is restored. It is open to the plaintiffs to invoke the jurisdiction of the Revenue Divisional Officer under Section 21 (7)(b) seeking an enquiry into alleged dis-qualification incurred by the service holders, due to non performance of the service and seek determination of their right to occupy the lands. There will be no order as to costs in these appeals.
Consequently, the connected miscellaneous petitions are closed. It is also made clear that the defendants would be entitled to show that they had exercised their objection under 21(3)(A) and had paid the amount payable under sub Section (4) of Section 21.
14.09.2017 Index : Yes Internet: Yes KP To
1.The Sub Court, Subordinate Judge, Thiruppur.
2.The District Munsif Court, District Judge, Avinashi.
3.The Tahsildar, Taluk Office, Avinashi.
4.The District Collector, Collectorate Office, Tiruppur.
5.The Section Officer, V.R.Section, High Court, Madras.
R.SUBRAMANIAN.,J.
KP CMA.NOS.359 & 360/2014 14.09.2017