PERIYANAN CHETTY Vs. RAO BAHADUR MRGOVINDA RAO

JUDGEMENT

(1.) The defendants are the appellants in these eleven second appeals. The suits were brought on behalf of Sri Subramanyaswami temple at Kunnakudi one of the five temples collectively known as Anjukoil of which the dharmakarthaship belongs to the Pandarasannadhi of Tiruvannamalai Mutt. The suits were originally brought by a receiver during the pendency of litigation as to the person entitled to the office of Pandarasannadhi of the Mutt and as such of the office of dharmakartha of the temples. After the litigation ended in 1920 by the Privy Council decision reported in Nataraja Thambiran V/s. Kailasam Pillai (1920) L.R. 48 I.A. 1 : I.L.R. 44 M. 283 : 39 M.L.J. 98 (P.C.). the person declared entitled to the offices was substituted as plaintiff. The suits were brought for the possession of various plots of land in a hamlet called Muruganendal in the village of Uyyakondan belonging to the temple which had been alienated by a permanent cowle, dated 1 April, 1865, by the then dharmakartha in favour of the dharmakarthas of two other independent temples from whom the various defendants had obtained transfers of their several plots and either erected house and other permanent structures or built walls with a view to constructing such structures. The plaintiff urged in the alternative that even if possession could not be given in defeasance of the cowle the defendants were entitled under it only to rights as agricultural tenants, and have no right to change the character of the land or to erect permanent structures and walls, and prayed for an injunction for their removal or for compensation.

(2.) The defence as to the cowle was that it was beneficial to the Devasthanams and valid, and that even if it was invalid the cowledar and the defendants had by adverse possession acquired a valid title to a permanent tenancy. As to the right to put up buildings the defence was that the lease was not agricultural, that the use of the land for erecting houses was in no way an infringement of the conditions, that the houses had been built a very long time before the suit and that the plaintiff is not entitled either to an injunction for their removal or to compensation.

(3.) Most of the seventeen issues framed were not referred to in the; argument before us and are now immaterial. The District Munsif found that the cowle was not proved to have been granted for any beneficial purposes binding on the Devas-thanam, but he held that the suit to recover possession was barred by limitation and adverse possession. As to the nature of the cowle he held that it was not a purely agricultural lease and that the defendants were not prevented from building on the property. On these conclusions he dismissed the suits. The learned Subordinate Judge also held that the permanent cowle was beyond the power of the dharmakartha and not beneficial to or binding on the Devasthanam. But he differed from the Munsif on the question of limitation and relying on the decision of the Privy Council in Vidya Varuthi Thirtha V/s. Balusami Aiyar (1921) L.R. 48 I.A. 302 : I.L.R. 44 M. 831 : 41 M.L.J. 346 (P.C.), he held the suits not governed by Art. 134 and also that the defendants had not pleaded or proved any title: by adverse possession under Art. 144. The logical consequence of these findings was that the plaintiff became entitled to a decree for possession. But the learned Judge having held that the defendants had not acquired title to a permanent lease by adverse possession went on to consider the case; also on the footing that they had acquired such title. On that footing he held that the cowle was an agricultural lease and that the erection of permanent structures on agricultural land was improper and that by that act the defendants had forfeited the lease and disentitled themselves to retain possession. But he held that it would be too harsh to enforce the forfeiture by ordering delivery of possession and by way of relief he considered that it would be sufficient if the buildings and walls were ordered to be removed. He accordingly while refusing the plaintiff's prayer for possession awarded him a mandatory injunction ordering the defendants to remove the walls and buildings in their respective holdings in three months and to restore the lands to their former condition and raise cultivation on them as stipulated in the kararnama or counterpart Ex. B.