SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR Vs. SRI KUTHALANATHASWAMI TEMPLE THROUGH ITS TRUSTEES SUBRAMANIA PILLAI (RESIGNED HIS TRUSTEESHIP) AND RAMASAMIA PILLAI

JUDGEMENT

(1.) This appeal relates to the Kuthalanathaswami temple at Kuttalam of which the plaintiffs (respondents) are the trustees. The suit is brought for a declaration that the plaint property belongs to the plaint temple and the Government has no right to levy any assessment on the same. The plaint property is Survey No. 482 of Kuttalam and the temple itself stands in this survey number. In 1874 the field was undivided and in the settlement register, Ex. V, it is classed as poramboke, while in the remarks column is the word "pagoda." The field itself is about 27 acres in extent. In the re-survey of 1908 the field has been sub-divided into 51 sub- divisions. The sites of the temple and of some mantapams and other buildings intimately connected with the temple have been left as poramboke, but in respect of the other sub- divisions the Government (defendant) issued inam pattas, but these pattas were refused and accordingly ordinary assessment has been levied on these items. The respondents contention is that the Government has no right to alter the classification of the land or to levy any assessment thereon, and this contention has been upheld by the Lower Court. The temple claims the whole property as its own absolute property, but has no title-deed for the same. It is not easy to understand on what ground the Subordinate Judge has found ownership in the temple. The finding appears to be based on evidence of acts of ownership on the plaint property, but it is evidently not intended to be a finding that the plaintiffs have acquired a prescriptive right, for there is in the judgment no reference to these acts having been continued for over 60 years. In this Court Mr. Rangachari for the respondents has not attempted to make out any prescriptive right, but has based his argument on the ownership of the plaintiffs. It has long been recognised that the Sovereign power is entitled to levy assessment on all lands within its territory. So long ago as 1850 in Maharajadheeraj Raja Mahatab Chund Bahadur V/s. The Bengal Government (1850) 4 M.I.A. 466 at 497 the principle was enunciated as being that the ruling power is interested in a certain proportion of the produce of every beegah, except so far as it shall have transferred, relinquished or compounded its right thereto, and all persons claiming the benefit of such exemptions being bound to establish their respective claims and titles. The same principle was affirmed in Secretary of State for India V/s. Bai Raj Bai (1915) L.R. 42 I.A. 229 : I.L.R. 39 B. 625 : 29 M.L.J. 242 (P.C.),where at page 646 it was observed with reference to inhabitants in some territory ceded to the Bombay Government that the only legal enforceable rights they could have as against their new sovereign were those, and only those, which that new sovereign, by agreement expressed or implied or by legislation, chose to confer upon them.

(2.) We therefore start in this case with an assumption that the defendant has a right to levy assessment on all lands within his jurisdiction, including the plaint property, unless it can be proved that either by statute or by agreement the plaint property is exempt from liability. This principle was not disputed, and cannot be disputed, by the respondents, but it is contended that the evidence in the case is sufficient to prove an implied agreement between the Government and the plaintiffs (respondents) that the suit property is exempt from taxation. When we come to examine this evidence it appears to be based upon the entry in the settlement register of 1874 in which Survey No. 482 is classed as "poramboke" and is said in the remarks column to be "pagoda poramboke". This seems to be a very slender basis for finding an implied agreement not to levy assessment. Reliance is placed on a single observation in Theivu Pandithan V/s. The Secretary of State for India (1898) I.L.R. 21 M. 433 (F.B.) where poramboke is referred to as follows: Poramboke...is land which the Revenue Officers at the settlement considered was required for these public purposes and which should not, therefore, at any time, be granted on patta, and on which it was for this reason useless to fix any assessment.

(3.) This observation merely relates to the opinion of the Revenue Officers and is no authority for holding that by classifying a land as poramboke the Government relinquishes the right to levy assessment on it for all time. Poramboke is defined in Wilson's Glossary thus: Such portions of an estate or village lands liable to revenue as do not admit of cultivation and are therefore exempt from assessment. a definition which was accepted by this Court in Seshachala Chetty V/s. Chinnaswami (1916) I.L.R. 40 M. 410 : 32 M.L.J. (Sup.) 1 (F.B.). That definition shows clearly that poramboke is liable to revenue, but that the right to levy assessment on it is given up by the Government for certain reasons; but it does not follow that, if those reasons cease to exist, or are held to be inadequate, the Government cannot levy assessment if it so chooses. It was sought to support this alleged prohibition of assessment by Board's Standing Order No. 15, which, while restricting the grant of poramboke land, recognises that it may be assigned in certain cases. In the present case a large portion of Survey No. 482 has been occupied by private individuals unconnected with the temple, and has been utilised for purposes not intended to benefit the pagoda. Apparently, in 1874, the Government considered that the whole of Survey No. 482 should be reserved for pagoda purposes, and in 1908, finding that this reservation of the whole extent was either impossible or undesirable, decided to convert the land from poramboke to ayan and grant inam pattas in respect thereof. Pattas were offered to the temple trustees free of assessment, and consequently revested in them rights, which possibly they had lost by adverse possession, and it appears that the action taken by the Government was wholly in the interests of the temple itself. This appears from Ex. II, Board's proceedings, dated 15 June, 1907. The trustees, however, refused this generous offer and now sue to enforce their supposed rights.