Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal Nos. 559- 560 of 2008

The Government of Tamil Nadu & Anr. Etc. Etc.  .... Appellant(s)

Versus

Arulmighu Kallalagar Thirukoil Alagar Koil  & Ors. Etc. Etc.

…. Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

1. H.H.  Sri  Sundara  Ramanuja  Periya  Jeer  Swamigal  of

Periya  Jeer  Swamigal  Mutt,  Tirupati  and  five  others

(hereinafter  referred to as “devotees”)  filed O.S.No.178 of

1982  in  the  Court  of  Subordinate  Judge,  Madurai  for  a

declaration that the entire forest area in Alagar Hills belongs

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to Sri Arulmighu Kallalagar also called Sri Sundarajasami or

Sundara  Bahu or  Paramasamy,  the  Presiding  Deity  of  the

Respondent-temple.  A consequential relief of possession of

the said forest area was also sought.    O.S. No.171 of 1987

was  filed  by  Arulmigu  Kallalagar  Thirukoil  Alagar  Koil  (for

short “the Respondent”) in the Court of Subordinate Judge,

Madurai for a direction to the Government of Tamil Nadu (for

short “the Appellant”) to deliver possession of the schedule

mentioned property  i.e.  Alagar  hills.   Relief  of  permanent

injunction restraining the Defendant i.e. the Appellant-herein

and  the  Chief  Conservator  of  Forest  Department  from

disturbing the underground water reserves by digging wells

or  in  any  other  manner  was  also  sought.   The  schedule

mentioned  property  is  to  an  extent  of  15,838.4  acres  at

Sellappa Naickenpatti Village.  O.S. No.171 of 1987 filed by

the  Respondent,  was  dismissed  by  a  judgment  dated

14.03.1988 and O.S. No.178 of 1982 filed by the devotees

was dismissed on 28.09.1995.  The Appeals filed against the

judgments of the trial Court were allowed by the High Court

of  Judicature  at  Madras  vide judgment  dated  27.06.2003.

Aggrieved by the judgment, the Appellant approached this

Court by filing the above Appeals.   

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2. In  O.S.  No.178 of  1982 filed by the devotees,  it  was

averred that the entire Alagar Malai was the property of Lord

Sri Kallalagar.  The devotees further pleaded that from the

historical  records  and  Sthalapurana  that  the  Government

which was in management of the temple handed over the

temple to the Manager or the temple Committee members

but failed to hand over the forest area which is the subject

matter  of  the dispute.   The devotees contended that  the

provisions  of  the  Madras  Forest  Act,  1882  (for  short  “the

Act”) were not complied with before declaring Alagar Hills as

a reserved forest.  Claiming themselves to be members of

the Vaishnava Community who are deeply interested in the

preservation  of  the  entire  Alagarmalai  as  the  property  of

Lord  Sri  Arulmighu  Kallalagar,  the  devotees  filed  a

comprehensive suit for declaration of title.  

3. The Appellant filed a written statement contending that

the  entirety  of  Alagar  Hills  belongs  to  the  Government.

According to the Appellant, Alagar Hills have been classified

as reserved forest  by the Government Notification No.187

dated  11.10.1883.  It  was  argued  that  the  entire  suit

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schedule property i.e. Alagar Hills was in possession, control

and management of the Forest Department.   

4. The  trial  Court  dismissed  the  suit  filed  by  the

Respondent by holding that no evidence was produced to

show that  the  suit  property  belonged to  the  Respondent-

temple.   The contention  of  the  Government  that  the  suit

property  was  declared  as  a  reserved  forest  in  1881  was

accepted  by  the  trial  Court.   The  Notification  dated

11.10.1883 under Section 25 of the Act was relied upon by

the trial  Court to hold that the Respondent-temple cannot

claim any right over the forest land on Alagar Hills.   

5. The suit filed by the devotees was also dismissed by

the  trial  Court  on  the  ground  that  the  Notification  dated

11.10.1883 under Section 25 of the Act was valid and it was

issued after following the procedure prescribed by the Act.

The trial Court also held that no evidence has been produced

by the devotees to show that the temple had any right over

the Alagar Hills.  As the issue was substantially the same as

that in O.S. No.171 of 1987, the trial  Court held that O.S.

No.178 of 1982 is hit by res judicata.   

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6. The High Court heard the Appeals filed against the two

judgments of the trial Court together and disposed them of

by  a  common  judgment.  The  High  Court  framed  the

following questions for determination:  

“1. Whether  Azhagar  Hills  belong  to  Azhagar

Temple?

2. Whether  they  were  in  the  possession  and

management of the first defendant Government in

their capacity as trustee and therefore, Section 10

of the Limitation Act would apply?

3. Whether  the  Government  Order  dated

11.10.1883 had been properly issued or is illegal

and invalid for non observance of the provisions of

the Tamil Nadu Forest Act, 1882? ”

7. The Applications filed by the Respondent under Order

41 Rule 27 of  the Civil  Procedure Code,  1908 (CPC) were

allowed  and  the  documents  produced  by  the  Respondent

were  marked  as  Exhibit  A-46 to  A-56.   While  referring  to

Section 25 of the Act, the High Court held that there is no

order of reservation as contemplated in Section 25 of the

Act.   It  was  further  observed by  the  High  Court  that  the

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procedure prescribed under Sections 6 and 8 of the Act was

not complied with.  The Notification dated 11.10.1883 under

Section 25 of the Act was held to be illegal and void.  It was

held that the suits were not barred by limitation as Section

10  of  the  Act  would  apply.   The  submission  that  the

Appellant had willfully suppressed material documents and

so the presumption of lost grant arises, was accepted by the

High Court.  Being of the opinion that adequate material has

been produced by the Respondent-temple to prove its title of

the temple over Alagar Hills,  the High Court held that the

Respondent  was  entitled  to  succeed.   The  entire  land  in

Alagar Hills which was hitherto being treated as a reserved

forest  was  directed  to  be  reverted  to  the  Respondent-

temple.   

8. We have heard Mr. Balaji Srinivasan, learned Additional

Advocate General  for  the State of  Tamil  Nadu,  Mr.  Mohan

Parasaran,  learned  Senior  Counsel  for  the  Respondent-

temple and Mr. V. Ramasubramanian, learned counsel for the

devotees.  

9.  It is the case of the Respondent that the entire land in

Alagar Hills belongs to the temple.  The Appellant denied the

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title of the Respondent over the Alagar Hills.  According to

the Appellant, Alagar Hills Reserved Forest was notified by

Notification No.187 of 11.10.1883.  Merely because a temple

was  situated  at  the  foothill  of  the  Alagar  Hills,  the

Respondent  cannot  claim  title  or  possession  over  the

reserved forest.  According to the Appellant, all the grazing

land  and  other  leases,  revenue  and  expenditure  in  the

Alagar Hills Reserved Forest have been under the control of

the Forest Department.   

10. It is not necessary for us to delve into the events prior

to 1881 for the purpose of determining the controversy in

this case.  We proceed to examine the material on record.

The first document of relevance is Proceeding No.85 dated

20.01.1881 of the Board of Revenue.   The Conservator of

Forests,  Colonel  R.H.  Beddome inspected the forest tracks

and found that the area of the hills  and forest  in Madura

Forest Division was 1,098 sq. miles.  An area of 305.48 sq.

miles was selected for reservation.  Alagarmalai having an

area  of  20.37  sq.  miles  was  included  in  the  proposed

reserves.   The  recommendation  of  the  Conservator  of

Forests was sent to the Superintendent of Revenue Survey

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by  the  Board  of  Revenue  to  prepare  the  outline  map  as

suggested  by  the  Conservator  of  Forests.   By  Proceeding

No.626 dated 09.04.1881, the Board of Revenue proposed

20.37  sq.  miles  of  Alagarmalai,  “all  Government  property

and hill tracks” to be reserved for climatic reasons as well as

for fuel demands of the future. By an Order No.1284 dated

29.08.1881, the proposal made by the Committee to reserve

305.48  sq.  miles  in  Madura  District  was  approved.   The

statement showing the area of reserves in Madura District is

annexed therewith, which includes Alagarmalai.   

11. The Madras Forest Act, 1882 was promulgated for the

protection and management of forests in the Presidency of

Madras which came into efect on 01.01.1883.  A Notification

was  issued  on  13.11.1883  under  Section  25  of  the  Act,

declaring  the  blocks  of  forests  described  in  the  schedule

thereto as reserved forests.  Alagarmalai is found at Serial

No.XXI.  At this point, it is relevant to refer to Section 25 of

the Act which is as follows:

“ 25. The "Government may, by notification4 in the

3 (Official  Gazette)  declare  any forest  which has

been  reserved  by  order  of  the  Government

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previous to the day on which this Act comes into

force to be a reserved forest under this Act:

Provided that if the rights of the Government or of

private  persons  to  or  over  any  land  or  forest

produce in such forest have not been inquired into,

settled  and  recorded  in  manner  which  the

Government  thinks  sufficient,  the  same  shall  be

inquired into settled and recorded in the manner

provided by this Act for reserved forest, before the

date on which the notification declaring the forest

to be reserved takes efect.

All  questions decided, orders issued and records

prepared in connection with the reservation of such

forest  shall  be  deemed  to  have  been  decided,

issued and prepared hereunder, and the provisions

of this Act relating to reserved forest. shall apply to

such forests.”  

12.  For  a  better  understanding  of  Section  25,  it  is

necessary to refer to the other relevant provisions of the Act.

Section 3 of the Act empowers the Government to constitute

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a reserved forest.  Section 4 provides that a notification shall

be published by the Government in the Official Gazette of

the district whenever it is proposed to constitute any land as

reserved  forest  by  specifying  the  details  of  such  land.

According to Section 6, the Forest Settlement Officer shall

publish a proclamation after  issuing the notification under

Section  4  specifying  the  particulars  of  the  property  and

fixing  the  time  for  receiving  objections  from  interested

persons.   Section  16  of  the  Act  postulates  issuance  of  a

notification declaring the forest as reserved after disposal of

the claims pursuant  to  the proclamation under  Section 6,

specifying the limitations of the forests which are intended

to be reserved from a date to be fixed by the notification.  As

per Section 25, the Government may issue a notification in

the Official  Gazette  declaring the area  which was already

reserved by the Government prior  to  the Act  coming into

force to be a reserved forest under the Act.  Unsettled claims

shall  be  considered  before  the  notification  takes  efect,

according to the proviso to Section 25 of the Act.    

13. While examining the contention of the Respondent that

the  Notification  dated  11.10.1883  was  issued  without

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complying the requirements  of  Section 25 of  the Act,  the

High Court  committed an error in finding that  there is  no

order of Reservation prior to 01.01.1883.  The High Court

referred to Exhibit B-6 which contains Order No.187 issued

under Section 4 of  the Act,  to arrive at a  conclusion that

there is no order of reservation.  Exhibit B-6 also contains

the Notification dated 13.11.1883 by which certain blocks of

forest land described in the Schedule annexed thereto have

been declared as reserved forests. Serial No.XXI of the said

Schedule covers Alagar Hills which is the subject matter of

the suit.  Order No.189 was issued under Section 4 of the Act

notifying the proposal to constitute certain area in Madura

District  as  reserved  forest.   The  area  mentioned  therein

pertains  to  Aggamalais.   Mr.  F.E  Robinson,  Assistant

Collector,  was  appointed  as  the  Forest  Settlement  Officer

and District Forest Officer of Madura to conduct the inquiry

under  Section  4.   The  Notification  pertaining  to  the  suit

schedule land  i.e. Alagarmalai was under Section 25 of the

Act whereas the Notification in respect of Aggamalais was

issued under Section 4 of the Act.  

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14. The High Court mixed-up the two Notifications to hold

that a reservation was not made in respect of Alagarmalai

prior to the Act coming into force. Relying on Order No.189

pertaining to Aggamalais,  the High Court erroneously held

that the notification under Section 4 of  the Act  relates to

Alagarmalais.  On such basis the High Court held that there

was  no  order  passed  by  the  Government  declaring  the

Algarmalai  as  reserved forest  prior  to  01.01.1883  i.e.  the

date on which the Act came into force.  Proceeding No.1284

dated  23.08.1881  would  clearly  demonstrate  that  the

proposal  for  reserving  forest  area  in  Alagarmalai  was

approved by the Government prior to the commencement of

the Act.  

15. Due  to  the  misconception  that  Order  No.189  issued

under Section 4 of the Act is applicable to Alagarmalai, the

High Court proceeded further to hold that the inquiry under

Sections 6 and 8 have not been conducted. Section 6, as

stated  above,  provides  for  an  inquiry  to  be  conducted

pursuant to the notification issued under Section 4.  Section

8 is connected to the inquiry to be conducted under Section

6.   Neither  Section  6  nor  Section  8  are  applicable  to  a

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notification issued under Section 25 of the Act which deals

with forests which were already reserved by the Government

prior to the Act.  Therefore, the finding of the High Court that

mandatory requirements of the Act were not complied with

before issuing Notification dated 11.10.1883 under Section

25 is not correct.  The judgments relied upon by the High

Court  in Sri  Perarula  Ramanuja  Jeer  Swami  v.  The

Secretary  of  State for  India  in  Council  through the

Collector of Tinnevelly1 and Mysore Balakrishna Rao v.

The Secretary  of  State  for  India  in  Council2 are  not

applicable to the facts of this case.   

16. As the suit filed by the respondent was not dismissed

as barred by limitation, it is not necessary for us to examine

the  point  relating  to  Section  10  of  the  Limitation  Act.

Another point decided in favour of the Respondent is that

lost  grant  has  to  be  presumed.   On  the  basis  that  the

Respondent-temple  had  been  in  long  and  continuous

possession of Alagar hills, the High Court was of the opinion

that  lost  grant  was  to  be  presumed.   The  High  Court

observed that the Respondent-temple had been exercising

1 (1910) VI Indian Cases 691  2 (1915) XXIX M.L.J. 276

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acts of ownership over the suit hills for  several centuries.

The Application filed under Order 41 Rule 27 of the C.P.C. by

the Respondent was allowed and the documents produced

by them were marked as Exhibits A-46 to A-56.  We have

carefully examined those documents which only show that

honey  and  other  forest  produce  were  being  collected  by

those who were permitted by the Respondent-temple.  The

right,  title  or  possession  of  the  temple  over  Alagar  hills

cannot be determined on the basis of the above documents.

  17. An adverse inference was drawn against the Appellant

for not producing the relevant material.  The High Court was

of the opinion that the Appellant was guilty of suppression of

the documents which were available. Hence, the High Court

presumed  lost  grant.   The  circumstances  in  which  the

presumption of lost grant can be made has been settled by

this  Court  in  a  judgment  reported  in  Sri  Manohar  Das

Mohanta v. Charu Chandra Pal & Ors.3 as under ;

“7. The  circumstances  and  conditions  under  which  a

presumption  of  lost  grant  could  be  made  are  well

settled. When a person was found in possession and

enjoyment  of  land for  a  considerable  period  of  time

under an assertion of title without challenge, Courts in

3 (1955) 1 SCR 1168

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England were inclined to ascribe a legal origin to such

possession,  and  when  on  the  facts  a  title  by

prescription could not be sustained, it was held that a

presumption could be made that the possession was

referable to a grant by the owner entitled to the land,

but  that  such  grant  had  been  lost.  It  was  a

presumption made for securing ancient and continued

possession, which could not otherwise be reasonably

accounted for. But it was not a presumptio juris et de

jure, and the Courts were not bound to raise it, if the

facts  in  evidence  went  against  it.  “It  cannot  be  the

duty  of  a  Judge  to  presume  a  grant  of  the  non-

existence of which he is convinced” observed Farwell, J.

in Attorney-General v. Simpson [(1901)  2  Ch  D  671,

698].  So also the presumption was not made if there

was any legal impediment to the making of it. Thus, it

has been held that it could not be made, if there was

no  person  competent  to  be  the  recipient  of  such  a

grant, as where the right is claimed by a fluctuating

body of persons. That was held in Raja Braja Sundar

Deb v. Moni  Behara [1951 SCR 431, 446] .  There will

likewise be no scope for this presumption, if there is no

person  capable  of  making  a  grant:  (Vide Halsbury's

Laws of England, Vol. IV, p. 574, para 1074); or if the

grant would have been illegal and beyond the powers

of  the  grantor.  (Vide Barker v. Richardson [4  B  &  Ald

579  :  106  ER  1048  at  1049]  and Rochdale  Canal

Company v. Radclife [18  QB  287  :  118  ER  108  at

118] ).”             

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18. We do not agree that the respondent was in continuous

possession under an assertion of title as there is no evidence

on record to reach such a conclusion.  The presumption of

lost grant is therefore not permissible.

19. The finding recorded by the High Court  that  there is

adequate  material  to  hold  that  Alagar  hills  belong  to  the

temple is erroneous.  The trial Court is right in holding that

the Respondent miserably failed in producing any material to

prove its title.   

20. On 02.04.2019, we were informed that the parties were

attempting a settlement.  This Court directed the Member

Secretary,  Hindu  Religious  and  Charitable  Endowments

Board  (HR  &  CE)  to  convene  a  meeting  with  all  the

stakeholders  to  facilitate  a  settlement.   A  meeting  was

conducted on 03.08.2019 in the Office of the Commissioner,

HR & CE in  which  all  the  stakeholders  participated.   The

significant proposals of the Respondent were that the title in

respect  of  the  Alagar  Hills  should  be  with  that  of  the

presiding  deity  of  the  Respondent-temple  and  that  the

income  from  the  forest  shall  be  shared  equally  by  the

Respondent-temple  and  the  Forest  Department.   The

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Appellant  did  not  accept  the  said  proposals.   After  joint

inspection  by  the  Forest  Department  and  the  HR  &  CE

Department, the Appellant was willing to divert an area of

18.3032  hectares  of  land  including  the  various  religious

spots  for  ease  of  movement  of  the  devotees.  The  Forest

Department was willing to permit 50 ft. of pathway to reach

all  the  spots  and  shrines  from  the  foothill.   The  Forest

Department  was  of  the  view  that  the  temple  should

undertake  very  strict  vigil  on  the  ecosystem  and

environment and no non-forest activities shall be permitted

within the 18.3032 hectares, except religious activities.  We

are in agreement with the proposal made by the Appellant.

The  Forest  Department  shall  permit  50  ft.  of  pathway  to

reach all the spots and shrines from the foothills for which

the  earmarked  area  of  18.3032  hectares  of  land  can  be

used.   No  non-forest  activities  shall  be  permitted  to  be

undertaken  by  anybody,  including  the  Respondent-temple

administration within the 18.3032 hectares of land which is

diverted for ease of movement of devotees to reach all the

spots and shrines from the foothill.

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21. In view of the above, the judgment of the High Court is

set aside and the Appeals are allowed.  

             ..…..........................J.                                                      [L. NAGESWARA RAO]

                                                    ..…..….....................J.                                                             [HEMANT GUPTA] New Delhi, November 06, 2019

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