M MUTHURAMA MUDALIAR DIED Vs. IDOL OF SRI MADHYARJUNESWARASWAMI AT SRI MADHYARJUNESWARASWAMI TEMPLE PETTVAI THALAI

JUDGEMENT

(1.) THIS is a second appeal filed by the defendant in O.S.No.372 of 1977 on the file of the Court of the learned District Munsif, Kulitalai, against the judgment and decree dated 28.7.1979 in A.S.No.54 of 1979 on the file of the Court of the learned II Additional Subordinate Judge, Tiruchirapalli, dismissing the appeal and confirming the judgment and decree of the trial Court.

(2.) THE suit was filed for possession with mesne profits and costs. THE defendant-appellant herein died, and his legal representatives were impleaded in the second appeal as per the order in C.M.P.No.7623 of 1980 dated 25.8.1980.

(3.) ON the other hand, the contentions raised on behalf of the defendant-appellant herein before the trial Court were as follows: The Inam Commissioner under section 14(1)(b) of Act 26 of 1963 granted the suit lands to the defendant. Both the warams were not vested with the temple. The defendant was a kudivaramdar, the plaintiff being the melwaramdar. The defendant is performing the services of Thavul and Thalam in the temple paying chathurbagam and poruppu at 6 marakkals per acre for the suit lands. The defendant is not a paid servant under the temple. The arrangement between the defendant and the then trustees is a permanent one and it is binding on the temple. The service is absolutely necessary and beneficial to the temple. The order of the Assistant Settlement Officer is not final and not conclusive. It is not binding on the civil court and the civil court has got every right to go into the question of title and decide the same. The defendant is not barred from questioning the title of the plaintiff. ONly the defendant and his predecessors-in-title have been in possession. By arrangement the defendant is performing four poojas instead of two originally performed. The original arrangement cannot be changed at the whims and fancies of the trustees. The allegation that the defendant is entitled only to remuneration and is not entitled to remain in possession is untenable. The notice of the plaintiff has been properly replied. The services of the defendant can be terminated only by the Commissioner for H.R, & C.E. till then, the plaintiff cannot interfere with his right. The plaintiff is not entitled to claim mesne profits. When it is admitted that the defendant� s possession is permissive one, the plaintiff can ask only for chathurbagam and not mesne profits, as his possession is lawful. As per the terms of hukumnamah, the grant was to the ancestors of the defendant burdened with service. So the plaintiff is entitled to have a charge over the suit properties for the due performance of the service. The temple was not granted both the warams and the kudiwaram was always with the defendant and his ancestors. The suit lands were ryoti lands and were never under pannai cultivation. They were never the private lands. Under section 65(1) of Act 26 of 1963, the lands must be presumed to be ryotwari and the defendant it entitled to continue in possession of the same. In any event, the defendant is a cultivating tenant by virtue of private arrangement or implied tenancy. In view of the amendment to Act 26 of 1963, by virtue of Act 22 of 1975, the defendant being a person in occupation of an inam land is entitled to continue in possession of the lands as a cultivating tenant, notwithstanding the fact that he has been denied the grant of ryotwari patta. In view of the amending Act 22 of 1975, the suit is not maintainable. The defendant is entitled to occupancy right under section 6 of the Estates Land Act. The suit has not been properly valued. There is no cause of action. The suit is barred by limitation. It is bad for nonjoinder of Venugopal, Srinivasan, Murugesan and Kanagasabapathy who have also rights in the suit properties.