Lost Grant -presumption – when not – 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. likewise be no scope for this presumption, if there is no person capable of making a grant: Suit for Declaration of title and possession and injunction against forest department 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 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. = Apex court held that 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. – 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. 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 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 nonexistence 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. 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. 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. 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 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.

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
    1 | P a g e
    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.
    2 | P a g e
  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
    3 | P a g e
    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 Respondenttemple. 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.
    4 | P a g e
  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?
  7. 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?
  8. 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? ”
  9. 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
    5 | P a g e
    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 Respondenttemple.
  10. We have heard Mr. Balaji Srinivasan, learned Additional
    Advocate General for the State of Tamil Nadu, Mr. Mohan
    Parasaran, learned Senior Counsel for the Respondenttemple and Mr. V. Ramasubramanian, learned counsel for the
    devotees.
  11. It is the case of the Respondent that the entire land in
    Alagar Hills belongs to the temple. The Appellant denied the
    6 | P a g e
    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.
  12. 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
    7 | P a g e
    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.
  13. 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
    8 | P a g e
    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.”
  14. 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
    9 | P a g e
    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.
  15. While examining the contention of the Respondent that
    the Notification dated 11.10.1883 was issued without
    10 | P a g e
    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.
    11 | P a g e
  16. 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.
  17. 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
  18. Neither Section 6 nor Section 8 are applicable to a
    12 | P a g e
    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 Tinnevelly
    1
    and Mysore Balakrishna Rao v.
    The Secretary of State for India in Council
    2
    are not
    applicable to the facts of this case.
  19. 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
    13 | P a g e
    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.
  20. 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
    14 | P a g e
    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 nonexistence 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] ).”
    15 | P a g e
  21. 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.
  22. 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.
  23. 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
    16 | P a g e
    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.
    17 | P a g e
  24. 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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