JUDGMENT
K. Gnanaprakasam, J.
1. The State of Tamil Nadu, represented by the District Collector, Tirunelveli, who is the 1st defendant in OS. No. 166/1979, has preferred this appeal.
2. For the purpose of convenience, the parties would be arrayed, as they were arrayed in OS. No. 166/1979, on the file of the Subordinate Judge, Tirunelveli.
3. One T. Ponnuswami Pillai, as Manager of joint family and joint trustee of ‘Arthajama Pushpa Kattalai in Sri Swami Nellaiappar Kanthimathi Ambal Devasthanam, Tirunelveli (hereinafter referred to as ‘Kattalaidar’), filed a suit in OS. No. 123/1978, before the District Munsif Court, Tirunelveli, for the grant of permanent injunction, against the defendants, more particularly against the 1st defendant in the said suit, viz. State of Tamil Nadu, not to distribute house site patta, with regard to the suit property to anyone, including the defendants 2 to 39 in the said suit. The said suit was subsequently transferred to the file of the Subordinate Judge, Tirunelveli and renumbered as OS. No. 166/1979. Another suit in OS. No. 162/1977 was filed by 13 persons, raising the very same defence of the defendants in OS. No. 166/1979. Both the suits were tried together, by the learned Subordinate Judge, Tirunelveli and the suit in OS. No. 166/1979 was dismissed and the suit in OS. No. 162/1977 was decreed. As against the said judgment and decree, the plaintiff preferred appeals in AS. No. 126/1980 and AS. No. 127/1980 and also filed IA. No. 95/ 1981 in AS. No. 126/1980 and both of them were heard together by the learned District Judge, Tirunelveli, who by judgment and decree dated 18.11.1981, allowed both the appeals, including IA. No. 95/1981, thereby the suit filed by the plaintiff was decreed and the suit filed by other persons was dismissed. As against the said judgment and decree, the State of Tamil Nadu, who is the 1st defendant, has preferred this second appeal.
4. The facts, which are necessary to dispose of this second appeal, are as follows:-
The plaintiff’s case is the suit property is classified as ‘Nandavanam Poramboke’ and the plaintiff and his predecessors in title were huqdars of the Kattalai, known as Arthajama Puspha Kattalai, attached to Swami Nellaiappar and Kanthimathi Ambal Devasthanam, Tirunelveli and they have been in possession of the suit property and performing the Kattalai. They were also paid cash allowances for the services, by the Government. It is also stated that they have been rearing flower plants and supplying flowers to the Temple for more than a century. It appears that Tirunelveli Municipality applied for assignment of the suit property and the same was negatived by the Government, on the ground that it was a Nandavanam and subsequently, the suit property was reclassified, as assessed waste and on the protest made by the plaintiff’s predecessors, it was once again retransferred as ‘Nandavanam’. It is stated that one Duraipandian and 37 persons trespassed into the suit property and put up huts, after destroying the flower plants on 23.3.1973 and the plaintiff’s brother, T. Subramania Pillai filed OS. No. 335/ 1973, on the file of the District Munsif Court, Tirunelveli, under Section 6 of the Specific Relief Act and the said suit was decreed on 6.10.1976. The defendants preferred a revision before this court in CRP. No. 3150/1976 and the same was dismissed on 23.6.1977. It appears that the defendants and others have applied for assignment and a notice was issued to the plaintiffs by Tahsildar, Tirunelveli to submit his objections and they have also submitted their objections and the enquiry was posted on 17.10.1977 and the plaintiff also filed all the relevant records. Thereafter, the plaintiff had not heard anything from the Tahsildar. But, however, there was a talk in the Village on 23.10.1977 that the Government was going to issue patta to the defendants and others and hence, the suit.
5. The 1st defendant, the State of Tamil Nadu resisted the suit, contending that the suit land was not a floral garden from 1973 onwards and it was ever a ‘Nandavanam Poramboke’ belonging to the Government. As such, it has got the supreme authority to deal with the land and the defendants 2 to 35 encroached upon the land and hence, B Memos were issued. It is claimed that it has got every right to assign it and the same cannot be questioned by anyone.
6. The defendants 2 to 39, in their written statement, have stated that there was no Nandavanam for the last 15 years and as it was lying vacant, they moved the Government for assignment of the site and the Revenue Officials recommended for the assignment. The defendants 2 to 39 have encroached the land belonging to the Government and they are in possession. It is also stated that the Government is the paramount title holder and entitled to assign the said land. If the decree passed in OS. No. 335 of 1973 is executed, it would put the defendants into irreparable loss.
7. As it has already been observed that, the trial court did not accept the case of the plaintiff and dismissed the suit. But, however, the lower appellate court accepted the case of the plaintiff and allowed the appeal.
8. The plaintiff’s contention that the land measuring 81 cents in Sindupoondurai Village was granted by the Government for the specific purpose of rearing flowers and offering the same to Nellaiappar and Kanthimathi Ambal Temple at Tirunelveli and the plaintiff and his predecessors in title, have been in management of the Nandavanam for more than a century and during 1973, there was a trespass into the suit property and the plaintiff filed the suit OS. No. 335/1973, on the file of the District Munsif, Tirunelveli, against the trespassers, making the Temple as 38th Defendant in the said case. The said suit was decreed by judgment and decree dated 6.10.1976, (Ex.A30). Some of the defendants in the said suit, who are the defendants 1 to 8, 10 to 19, 21 to 23, 25, 28 to 30, and 32 to 35, filed a revision in CRP. No. 3150/ 1976 before this court and during the pendency of those proceedings, some of the defendants in OS. No. 166/1979, along with others, have chosen to trespass into the suit property. The said CRP came to be dismissed by this court on 23.6.1977. Despite this, the Government made an attempt to grant patta to the defendants and others and only in the said circumstances, the plaintiff has filed the suit.
9. The learned additional Government Pleader has submitted that the Government is the paramount owner of the suit property and that therefore, it can deal with the suit property, as it likes. It is submitted that the defendants have put up huts/buildings and based upon their request for grant of patta, the Government initiated to grant patta for them. The plaintiff has no right to tie the hands of the Government from granting patta to these persons.
10. The learned advocate for the respondents 1,4,5,17,18,26,27,29,32 and 34 would submit that the suit land was lying vacant and therefore, they have trespassed into the suit property and B Memos were also issued in their favour. It is also submitted that the Government was willing to grant patta for them and therefore, the plaintiff cannot thwart the said proceedings.
11. It is so unfortunate that the 1st respondent, who is the plaintiff in OS. No. 166/1979 remained exparte. But, however, this court feels that it is its duty to dispose of the appeal on merits, by taking into consideration that the suit property is a Nandavanam, intended for rearing flowers and offering the same to the Kattalai of the Temple.
12. Ex.A1 is the certified copy of the Settlement Register, titled as ‘Tirunelveli Taluk Register of Ready Money Inam’. But, I do not find the word ‘Ready Money Inam” in any of the columns from 1 to 19. Column 1 contains the survey number. Columns 2 and 3 indicate the name of the Village and Column 4, the kist payable and Column 5, “Class to which the Inam belongs”, in which it is stated, “Devadayam Nanthavanam”. Column 6 ‘Description of Inam’ says, “For the upkeep of a flower garden belonging to Ganthimathi Amman Temple at Tirunelveli, which is in the village of Sindupunthorai.” Column 11 to 16 are unnecessary. Column 17 deals with the result of enquiry, which states, “This is an Inam granted for the upkeep of a flower garden at Sindupunthorai, which belongs to Kanthimathi Amman of Tirunelveli for supplying the flowers thereof every day for the use of the Amman at mid night. This Inam first appears in the Mania Jamabandy account.” Column 18 indicates about the opinion of the Tahsildar, which states, “I have examined the Maniam account received from the Huzur Vernacular Record Keeper. The grant is recognised in fasly 1217. I am of opinion that the grant may be continued subject to control of the Siva Committee (signed) G.V. Chinnanatan, Tahsildar, 16th September 1875.” In fact, this has already been accepted by the Inam Commissioner on 14th June 1881 (Column 19 of Ex.A1). From Ex.A1, it emerges that the suit land is intended for the upkeep of a flower garden and supply flowers to the Amman Temple, which is situated in the Village of Sindupunthorai and the classification of the suit property is described as “Devadayam Nanthavanam”. The plaintiff and their predecessors in title, have claimed that they have been rearing flower plants and supplying flowers for the Kattalai of the Temple. On examining, Ex.A1, I do not find any money demand for the service done by the plaintiff. The lower appellate court had referred to all the relevant documents filed and relied upon the plaint. Ex.A3 would indicate that the plaintiff’s predecessors have taken necessary action, by filing appeal/petition before the Board of Revenue, as the land was wrongly classified as assessed waste and at their instance, it was retransferred as Nandavanam and Ex.A4 is the notice issued by the Tahsildar, confirming the same. Ex.A5 is the True Extract of the proceedings of the Board of Revenue, regarding the appeal filed by the plaintiff’s predecessors. Ex.A7 is the Miscellaneous patta granted in favour of the Temple. Ex.A9 is the Extract from the Survey Register, Tirunelveli Town, indicating the S. No. 132 of Sindupunthurai Village concerned, which is noted as ‘Nandavanam’. In Ex.A10, the Property Tax demand Register, the name of Subramaniam Pillai is shown, who is the predecessor of the plaintiff, who has filed the suit in Os. No. 335/1973. Ex.A11 reveals that a political sufferer by name Varadarajaperumal Pillai wanted the land to be assigned in his favour and the same was negatived by the Government, stating that the land is not available for assignment, as it is required for the purpose for which it is registered. In 1959, the Municipality made an attempt to get it alienated and the same was negatived by the Government, (Ex.A12). Ex.A15 to 17 (series) are the kist receipts paid by the plaintiff and his predecessors. Ex.A18 and A19 (series) are the tax receipts. The Temple authorities issued a certificate for the services rendered by T. Subramania Pillai, by way of supply of flowers (Ex.A20). These documents would undoubtedly prove that the suit property is a Nandavanam, that is being maintained as Nandavanam and flowers were supplied by the plaintiff and his predecessors. The other documents filed by the plaintiff support the case of the plaintiff. The case of the plaintiff is also further fortify their contention that they have taken action against the trespassers in 1973, by filing the suit in OS. No. 335/ 1973, which was decreed on 6.10.1976 and the CRP. No. 3150/1976 was dismissed by this court on 23.6.1977. These documents would abundantly prove the case of the plaintiff and when the plaintiff made arrangements to execute the decree in OS. No. 335/1973, some of the defendants in that suit along with others, whose ranks are shown by the lower appellate court in para 17 of the judgment, wanted to take away the property and also to thwart the plaintiff from executing the decree in OS. No. 335/1973 and only in the said circumstances, the plaintiff has come forward with the present suit in OS. No. 166/1979.
13. The lower appellate court has properly appreciated the case and also the evidence and came to the conclusion that the suit land has been granted in favour of Nellaiappar Kanthimathi Ambal Devasthanam and earmarked for the specific purpose of maintaining Nandavanam and the plaintiff and the predecessors have been in the management of the Nandavanam. It was rightly held by the lower appellate court that even the Government, 1st defendant/appellant itself cannot have any right in the suit property, till it resumes the suit land. I am in complete agreement with the stand taken by the lower appellate court and it does not at all warrant any interference by this court.
14. The following substantial questions of law were formulated, at the time of admission of the second appeal:-
1. Whether the court below is correct in not considering that when only a money grant by way of remuneration for supplying flowers to the temple is made it does not amount to a grant of the land itself?
2. Whether it was considered that when a duty is imposed by way of money grant or supplying flowers to the temple it has absolutely no connection with the land?
3. Whether it was considered that Government has got every right to revoke when there is no grant?
4. Whether it was considered that the temple is a necessary party to the suit?
15. Question Nos.1 and 2 are overlapping and in view of the finding that there is no indication in Ex.A1 for the money payment and supplying of flowers to the Kattalai of the Temple, these questions were answered against the appellant.
16. With regard to the question No. 3, the lower appellate court has clearly observed that the Government cannot deal with the property before it could resume the land. The plaintiff approached the court, when they came to know that the Government was making arrangements to distribute patta before ever resumption of the land. Therefore, the plaintiff was well within his right to approach the court for such a relief. The sovereign power of the Government over the land is not questioned, but the said power could also be exercised only in a manner known to law and not arbitrarily and capriciously and that therefore, this question is also answered against the appellant.
17. As far as the question No. 4 is concerned that whether the Temple is a necessary party to the suit, I would like to indicate that the Temple has already been made as a party in the earlier suit in OS. No. 335/1973 and that therefore, it has become unnecessary to implead the temple, once again, in the suit.
18. Before parting with the appeal, I would like to observe that admittedly, the suit land is a Nandavanam, intended for the specific purpose of rearing and supplying flowers to the deity. Offering flowers to the deity is a day-to-day affair and the purpose, for which it was intended, should not be defeated by the encroachers. In fact, in Ex.A1, it is notified that it is a Devadayam Nandavanam, intended for the temple. If for any reason, it is very difficult to rear flowers and supply the same for deity, there are ways and means, how it should be done. For that matter, we cannot tolerate the trespassers and the same is being encouraged by the Government. If at all the Government wants to help the houseless persons, it is always open to the Government to identify the lands available and also the need of the persons, by holding due and proper enquiry and then to allot. But, in this case, handful of persons have trespassed into the suit lands and trying to get patta and the Government is also supporting their claim. This is not the way, with which the Government should act in distribution of patta for the encroachers. It is not the case of the Government that all the defendants are houseless persons. Before ever distributing patta, it is incumbent upon the Government to identify, whether these persons are houseless persons and then to take necessary steps to grant patta. But, the Government is trying to support the case of the trespassers and the same is not permissible. If the trespassers are given patta, the genuine houseless persons, who have refrained from committing an illegal act of trespass, would be deprived from getting patta. The Government is trying to recognise the trespasers and it cannot be done and appreciated. Doing it on the reverse order is not the proper procedure. I also feel that the Government should not have encouraged this kind of trespass at the initial stage itself and instead of preventing the encroachers, it had encouraged the trespassers and it should not be the way, in which the Government should act. As I have already come to the conclusion that if the Government feels that these persons are houseless persons, it is always open to the Government to ear-mark certain lands and identify the houseless persons and allot the lands to them and not in this manner.
19. In the result, the second appeal is dismissed. No costs.