JUDGMENT: The appeal arises out of O.S. No.142 of 1986 filed by the respondents herein against the appellant for a permanent injunction restraining the appellant from bringing the suit property to public auction on 23.10.1986, or on any other date and from interfering with their possession in respect of the suit properties. The respondents based their right to such a relief claiming that they were cultivating tenants in respect of the suit properties. C.R.P. No.2278 of 1994 arises against the order of the Revenue Court, Madurai in P.T. No.284 of 1999 granting the respondents herein permission to deposit the current rent and arrears of rents under Tamil Nadu Cultivating Tenant’s Arrears of Rent Relief Act 38 of 1990 (Act 38 of 1990 in short). The decision in both the matters will largely depend upon whether the respondents are entitled to any protection as cultivating tenants. The appeal is taken up first. 2. The averments in the plaint are as follows: The suit properties are topes. One Gurusamy Raja (G.R. in short) was in possession and enjoyment of the suit properties as a cultivating tenant under a registered lease deed dated 29.5.1957. The respondents are his legal heirs. Under this deed the suit properties and nanja lands are leased out to the said G.R. He continued in possession and enjoyment of the same contributing his physical labour and that of his family members. The lease was periodically renewed until 30.6.1963; the respondents wanted the lease deed to be renewed. Then, the appellant herein requested him to surrender the nanjalands and to retain the suit properties. G.R. surrendered the nanja lands alone. On 20.11.1963, the appellant herein issued a notice that there will be a public auction of the suit properties. G.R., filed O.S. No.55 of 1963 before, the Subordinate Judge, Ramanathapuram for a declaration that the lease of the suit property is valid and for an injunction against the defendant from holding auction of the lease of the suit property and from evicting the plaintiff otherwise than by due process of law. The suit was decreed on 9.11.1964 and there was no appeal there against. Subsequently, on 23.9.1969, a fresh lease deed was obtained in respect of the suit property. Ignoring the rights of G.R. the appellant executed a lease deed in favour of one Sankarapandy Thevar. So G.R. filed O.S. No.54 of 1970 for a bare injunction. The suit was decreed on 9.11.1964 and there was no appeal there against. Subsequently, on 23.9.1969, a fresh lease deed was obtained in respect of the suit property. Ignoring the rights of G.R. the appellant executed a lease deed in favour of one Sankarapandy Thevar. So G.R. filed O.S. No.54 of 1970 for a bare injunction. The suit was decreed on 31.7.1972. The appeal, A.S. No.20 of 1974 was dismissed on 6.8.1974. Against that a second appeal S.A. No.302 of 1975 was filed and that was also dismissed on 14.11.1977. The Special Leave Petition was also rejected. Therefore, the judgment and decree in O.S.No.54 of 1970 became final and absolute. Pending A.S. No.20 of 1974, G.R. died; the respondents were brought on record as L.Rs. Meanwhile, the appellant filed O.S. No.79 of 1974 before the Subordinate Judge, Ramanathapuram for recovery of arrears of rent. In that suit, inter alia two issues were raised; whether G.R. was entitled to the benefits of Tamil Nadu Cultivation Tenants Protection Act 25 of 1955 (Act 25 of 1955 in short) and whether the Act was applicable to the suit properties. The suit was decreed and the learned Judge held that the appellants were not entitled to raise the two issues referred to above, since they were barred by res judicata. Against this, the respondents filed A.S. No.884 of 1979 and the appellants filed cross-objection. By the judgment dated 26.2.1980, the High Court confirmed the decree for arrears of rent and the question whether the respondents are cultivating tenants was left open. On 5.8.1986, a fresh lease deed was executed and the respondents are in possession pursuant to that, cultivating the suit properties by raising plantain, sugarcane, paddy, digging wells and enjoying the usufructs of the trees. Since at this juncture, a notice of public auction has been sent by the appellants herein, the suit came to be filed. 3. The appellants herein filed their written statement denying the averments in the plaint except those that were specifically admitted. The judgment in A.S. No.884 of 1979 was referred to, wherein the Division Bench of this Court held that the Tamil Nadu Public Trusts Regulation and Administration of Agricultural Land Act 57 of 1961 (Act 57 of 1961 in short) alone applied to properties belonging to public trust and in respect of suit properties the Act 25 of 1955 had been repealed. Further, since the suit properties are Topes, they are exempted from the provisions of the Act 57 of 1961. The fact that the respondents had raised some crops in the inter-space will not change the character of the suit property from that of a tope into a cultivable land. It was also stated that by the provisions of H.R. & C.E. Act, the Executive Officer of the suit temple is bound to lease the suit Topes in public auction. The alleged lease deed dated 5.8.1986 was denied as inadmissible and invalid since there could be no lease of properties belonging to temples otherwise than by public auction. The appellants cannot be restrained from preventing what they are legality bound to do by an order of injunction. The properties have been wasted and damaged. The covenant to plant 250 trees per year has been breached. Moreover, rent has not been paid and there are arrears. In these circumstances, the suit itself is an abuse of process of law and must be dismissed. 4. The learned Subordinate Judge, Srivillipluthur framed the following issues: (1) Are the plaintiffs entitled to injunction? (2) Are not the plaintiffs cultivating tenants? (3) To what other reliefs are the plaintiffs entitled to? 27 documents were filed on the side of the plaintiff, 5 on the side of the defendants and Exs.C-1 and C-2 being the Commissioner’s report and plan were marked. 2 Witnesses were examined on the side of the plaintiff and one on the side of the defendant. All the issues were found in favour of the respondents herein and the suit was decreed, against that the present appeal has been filed. 5. Mr.S.Parthasarathy of Sarvabhauman Associates, appearing for the appellants would submit that the suit properties are topes, as seen from the description of the property in the Schedule to the plaint. Though originally nanja lands had been given on lease to G.R., on his own admission and as per the plaint averments the nanja lands had been surrendered. So what remained with G.R. and thereafter the plaintiffs/ respondents is only the suit tope. Though originally nanja lands had been given on lease to G.R., on his own admission and as per the plaint averments the nanja lands had been surrendered. So what remained with G.R. and thereafter the plaintiffs/ respondents is only the suit tope. According to the learned counsel, while there cannot be any denying the prior proceedings between the parties, the last and final judicial pronouncement inter partes was by the Division Bench of this Court in A.S. No.884 of 1979, which held that the status of the appellant under Act 57 of 1971 is not decided and that the same is left open. The findings of the trial Court that the respondents are entitled to the protection under Act 25 of 1955 were specifically set aside by the Division Bench. Therefore, the learned counsel would submit this question is still undetermined and it cannot be said to be barred by res judicata. The learned counsel would submit that since the suit property is a tope and the provisions of Act 57 of 1961 do not apply to lands which are converted into orchards or topes, whether or not such lands are continuous or scattered, the respondents cannot claim any right as cultivating tenant under the appellant- temple which is a public trust. He also assailed the validity of Ex.A-9, which is an unregistered lease deed and therefore, inadmissible as evidence. He would also submit that the provisions of H.R. & C.E. Act viz., Sec.34(1), Sec.116(2)(Xiii) and the Rules, regulate the grant of lease by a temple of immovable property and since Ex.A-9 is not in accordance with these provisions it is null and void. He relied on the following judgments: (1) Manjammal v. Arulmigu Nachadaithavirtharulia Swami Thirukoil, 100 L.W. 32; (2) M.V.P.B. Nammalwar v. Commissioner, H.R. & C.E. (Admn.) Department, (1997)2 M.L.J. 191 : A.I.R. 1997 Mad. 287; (3) A.C. Lakshmipathy v. A.M. Chakrapani Reddiar and others, (2000)1 L.W. 257; (4) Arulmighu Ammachi Ayyanar Mandu Koil v. Alagu Karuppannan Ambalam, (1996)2 L.W. 832 ; (5) Sri Madhavaperumal Devasthanam v. Tmt.Dhanalakshmi and others, (1996)1 L.W. 231; (6) Sayyed Ali and others v. A.P. Wakf Board, (1998)2 S.C.C. 642 . 6. 287; (3) A.C. Lakshmipathy v. A.M. Chakrapani Reddiar and others, (2000)1 L.W. 257; (4) Arulmighu Ammachi Ayyanar Mandu Koil v. Alagu Karuppannan Ambalam, (1996)2 L.W. 832 ; (5) Sri Madhavaperumal Devasthanam v. Tmt.Dhanalakshmi and others, (1996)1 L.W. 231; (6) Sayyed Ali and others v. A.P. Wakf Board, (1998)2 S.C.C. 642 . 6. Replying, Mr.R. Thiagarajan, learned senior counsel for the respondent would divide the previous history of litigation between the parties into three sets, one flowing out O.S. No.55 of 1963, which was for permanent injunction, on account of the appellants bringing the suit property for public auction, two, arising from O.S. No.54 of 1970 which was filed because the appellant inducted one Sankarapandy Thevar as leasee of the suit property; and three, finally arising from O.S. No.79 of 1974 which was filed by the appellants for arrears of rent. In the first suit the issue No.2 related to the entitlement of the respondents to the benefits of Act 25 of 1955 and whether the tope was exempt from the provisions of Act 57 of 1961. According to the senior counsel, it was not open to the appellants to challenge these issues now, after they reached finality. He also submitted that the rights of the parties as tenants do not flow from Ex.A-9, which was attacked as inadmissible but from the earlier lease deeds of the years 1967-71 wherein it is stated that they are not only in favour of the G.R. but also his family members. Therefore, according to the learned senior counsel for the respondents’ rights flow de hors Ex.A-9. He also submitted that the Advocate Commissioner has given clear evidence regarding the inter-space cultivation. Therefore, it is not open to the appellant-temple to say that the rights granted in favour of the respondents was only in respect of the tope trees and that no right was given in the land. He specifically referred to the extract in para. 13 of the judgment of the Court below wherein the Advocate Commissioner had referred to the existence of not only the trees but raising of cotton, plantain and even paddy. He specifically referred to the extract in para. 13 of the judgment of the Court below wherein the Advocate Commissioner had referred to the existence of not only the trees but raising of cotton, plantain and even paddy. He also referred to para 16 of the judgment wherein the Court below had said that if the only right given to the respondents was in relation to the usufructs of the trees the temple ought to have taken steps when the respondents did inter-space cultivation, since they did not do so the conclusion is that the respondents are only cultivating tenants. The learned senior counsel also referred to the RTR proceedings in T.R.A. Nos.14 of 1986 to 17 of 1986 wherein the respondents had applied to be recorded as tenants. Though a writ petition was filed by Devasthanam it ended in dismissal. Therefore, the learned senior counsel would state that the proceedings under Tamil Nadu Agricultural Lands Record of Tenancy Rights Act 10 of 1969 had also reached finality. The learned senior counsel would submit that in the oral evidence there is a clear admission regarding the right of the respondents to cultivate the lands in between the tope trees and also that the right granted to the G.R. would also bind the legal representatives, so there was a clear recognition of the rights of the respondents herein. The learned senior counsel further submitted that it is not the case of the appellant that the respondents are trespassers, that being so they cannot be unlawfully evicted. Learned senior counsel relied on the following decisions: (1) The Midnapur Zamindary Company, Limited v. Kumar Naresh Narayan Roy and others, 47 M.L.J. 23: L.R. 51 I.A. 293: A.I.R. 1924 P.C. 144 and (2) Krishna Ram Mahale (dead) by his L.Rs. v. Mrs.Shobha Venkat Rao, A.I.R. 1989 S.C. 2097. According to the learned senior counsel the judgment of the trial Court must be confirmed. 7. Let us examine the various points raised: I. Status of respondents as cultivating tenants: The properties which are in dispute are described thus in the plaint: So suit schedule item 1 and 2 are both ‘topes’? According to the documents referred to by the respondents namely Ex.A-1, which is the first deed between the parties the agreement relates to nanja lands and topes. According to the documents referred to by the respondents namely Ex.A-1, which is the first deed between the parties the agreement relates to nanja lands and topes. Clause 4 is as follows: Clause 6 is as follows: Clause 8 runs as follows: And Clause 11 runs as follows: This is Ex.A-1. Ex.A-10 which is of the year 1961 is almost similar with regard to the recitals. 8. In contrast to Clause 4 in Ex.A-1 extracted above, Ex.A-9 which is dated 5.8.1986 is slightly different. Clause 4 reads thus: And there is reference in the preamble of Ex.A-9 to the previous litigation between the two parties and also that the appellant is entering into this agreement as a cultivating tenant under the Tamil Nadu Public Trusts Act. Schedule (1) of this document is identical to Schedule (1) of the plaint referred to above. But Schedule (2) of this document makes a small but very vital change and the suit property is referred to as punjai instead of But as far as per the plaint the two properties are only It is also pertinent to not that though in the original lease deeds in favour of G.R., Clause 4 specifically said that only can be raised and not 9. In this Ex.A-9, Clause 4 in addition to ragi and plantain, the clause seems to say that permission was given to raise all crops in the punja. But even as per the learned senior counsel’s submission the rights of the respondent flow de hors Ex.A-9, perhaps realizing the legal infirmity in the document. So as per the agreement with G.R. the inter-space cultivation which is permitted by the appellants herein was only to do Clause 8 of Ex.A-1 stipulates that the recitals under the document would bind the lessee’s heirs. This cannot mean that all the rights that were granted in favour of G.R. were also granted to his heirs and that, if G.R. was a cultivating tenant in respect of the suit property his heirs also were cultivating tenants. If Ex.A-1 is read as a whole, the reason why this clause is included is apparent. In the first place Clause 8 makes it clear that the conditions in Clause 8 binds G.R.‘s legal heirs also. The reason why this clause has been introduced is because G.R. gave his own valuable property as security for due performance of his duties as a tenant. In the first place Clause 8 makes it clear that the conditions in Clause 8 binds G.R.‘s legal heirs also. The reason why this clause has been introduced is because G.R. gave his own valuable property as security for due performance of his duties as a tenant. This clause was introduced only to ensure that the heirs of G.R. do not try to attack this lease deed on the ground that G.R. had no right to give their properties as security. P.W.1, son of G.R. and the third respondent herein also states in his evidence that under the earlier lease deeds it was his father who was enjoying their property. And even according to P.W.1, Ex.A-1 and the subsequent lease deed were only in favour of his father. He has also clearly said, Therefore, in 1963 nanja lands were surrendered and G.R. was enjoying only the suit tope. The other recital in the lease deed which has been extracted above is Clause 6, which forbids the lessee from cutting or allowing others to cut the suit trees and topes. In fact, the lessee does not even have the permission to cut and remove the dead trees and the topes. The Court below has relied on Exs.A-14, A-15, A-16, A-17, A-19, A-20, A-21 etc., to come to the conclusion that since the persons who wanted to remove the dead trees could do so only after obtaining permission from the appellants it would clearly show that the respondents were in possession of the suit property. The relevant extract from the Trial Court judgment is as follows: 10. The learned Judge has drawn this conclusion from the evidence of P.W.1. However, if one sees these Ex.A-14 etc; it is not only in conformity with the conditions imposed by Clause 6, but it is also apparent that the permission that is required shall be given not by the respondents but by the appellants. As a sample, Ex.A-14 is reproduced herein: 11. From this, two facts are clear. It is only the appellant who has the right over the trees since it is the temple, which auctioned the dead trees and received the sale proceeds. The other fact is, the right to give permission to remove the trees belongs only to the appellant. As a sample, Ex.A-14 is reproduced herein: 11. From this, two facts are clear. It is only the appellant who has the right over the trees since it is the temple, which auctioned the dead trees and received the sale proceeds. The other fact is, the right to give permission to remove the trees belongs only to the appellant. Clause 6 which has already been extracted above forbids removal of the trees by the lessee or allowing another to remove the trees. So permits were issued by the appellant to the successful bidders so that they could produce those permits to the respondents to enable them to remove those trees. The respondents had no right to allow anyone to remove the trees without permission of the appellant. It is clear that the Court below has misconstrued Exs.P-14 to P-21. In fact they clearly show that it was only the appellants who had the exclusive right over the suit property and even entry upon the land to remove dead trees was by permission of the appellant. If, as the respondents would like us to believe, they were in total control over the suit lands and trees it was not necessary for the successful bidders to obtain prior sanction of the temple for entry into the tope. It is also clear that they only enjoyed the usufructs of the trees and not the trees. If under the lease agreement the respondents had the rights over the trees then it is they who would have had the right to remove the trees or deal with them in any manner that they deemed fit. Therefore, Exs.P-14 to P-21 clearly show that the land was under the control only of the appellant and the respondents could not permit anyone to enter upon the land without obtaining permission of the appellant. Now we will look at the oral and documentary evidence with regard to the nature of cultivation done by the respondents. 12. Though P.W.1 says, he ploughs the land with a tractor and that his mother and sisters also help in actual cultivation the cross-examination reveals that these women are affluent. The witness denies knowledge of his sister the 4th respondent owning spinning mills and lorry service. His questions are evasive when it comes to the 1st respondent, the mother and the fifth respondent, sister. The witness denies knowledge of his sister the 4th respondent owning spinning mills and lorry service. His questions are evasive when it comes to the 1st respondent, the mother and the fifth respondent, sister. The evidence that these women personally did cultivation is unlikely and unbelievable. Further, the witness is unable to say the number of trees in the suit tope. He has not maintained any account regarding the in the lands. 13. He does not know how many coconut trees were given on lease. There is absolutely no evidence regarding the crops he is supposed to have cultivated in the interspace. Even in the chief-examination these details are not given. On the other hand a perusal of the judgment in A.S. No.884 of 1979 shows that there was a Tree Register listing the variety of trees in it. But there is nothing to show that the witness is aware of the trees. In fact he very nonchalantly says that because the trees were not watered they died. The lease itself was given only to tend to the trees, even that he had not done. All that the Advocate Commissioner report speaks of is that paddy is grown in the suit lands. The Court below has accepted this without any question as though that by itself establishes personal cultivation. It is not enough to prove that paddy and cotton was cultivated in the suit lands; it must have been cultivated personally. The evidence in this regard is scrappy and insufficient. The respondents have not proved that they are personally cultivating the land. 14. The trial Court while discussing non-registration of Ex.A-9 does not give any finding regarding this apart from stating that Ex.A-9 has not been obtained by fraud. But, the Court below also bases its findings regarding the entitlement of the respondents not on Ex.A-9 but as flowing from G.R’s rights. 15. In fact the senior counsel repeatedly stressed that the rights of the parties flow not from Ex.A-9, but from the rights enjoyed by G.R. under Ex.A-1 and Ex.A-10. It is seen that the suit properties are only topes. The respondents were only permitted to tend to the trees. 15. In fact the senior counsel repeatedly stressed that the rights of the parties flow not from Ex.A-9, but from the rights enjoyed by G.R. under Ex.A-1 and Ex.A-10. It is seen that the suit properties are only topes. The respondents were only permitted to tend to the trees. The control over the land and the right to permit people to look upon the land was only with the appellant and even the right over the trees was with the appellants, since they alone could sell the dead trees and receive the sale proceeds. The only right that the respondents appear to have had was to enjoy the usufructs. G.R., the original lessee had no right to cultivate anything in the inter-space except like ragi and plantain. 16. The suit property having been found to be a tope we will have to look to the Act 57 of 1961 and the application of the said Act on properties, which is a Tope. The appellant is a temple and Sec.2(25) of the Act which defines public trust includes a temple within its definition. By Sec.62 of the Act 57 of 1961 of the Tamil Nadu Cultivating Tenants Protection Act 25 of 1955 is repealed and ceases to apply in respect of any land held by a person under a public trust. Therefore, the relation between a temple and its cultivating tenants will only be governed by Act 57 of 1961. Tope is defined under Sec.2(29) to mean any land containing a group of fruit or nut-bearing trees as constituting the main crop in that land. 17. It is apparent that the main crop of the land is coconut. Chapter 7 of the Act 57 of 1961 deals with exemptions and Sec.51 exempts the provisions of the Act to lands, which are converted into orchards or topes or areanut garden. Not only the pleadings but the documents relied on by the parties show that the suit properties were coconut topes. It has been specifically pleaded that though G.R. originally took on lease nanja lands and topes, nanja lands were surrendered in 1963. The Court below has found the respondents are cultivating tenants since they are cultivating the land with physical labour. But there is no proof of personal cultivation. It has been specifically pleaded that though G.R. originally took on lease nanja lands and topes, nanja lands were surrendered in 1963. The Court below has found the respondents are cultivating tenants since they are cultivating the land with physical labour. But there is no proof of personal cultivation. Further, the learned Judge failed to see that the oral and documentary evidence show that the subject of lease is only a tope, which is exempt from provisions of the Act. It is the case of P.W.1 in his evidence that his father was enjoying the suit property as per the conditions in Ex.A-1. As regards the respondent’s rights this is what the witness says: 18. Ex.A-9 is unregistered and no period is fixed in the deed. According to P.W.1 it was given to them permanently. The appellant- temple is governed by the provisions of H.R.& C.E. Act and therefore, the procedure for alienation of temple property must be strictly followed. The respondents are also aware that the procedure has not been followed. 19. In the absence of sanction under Sec.34(1) the lease is null and void. However, as stated earlier the learned senior counsel himself advanced his arguments stating that rights of the respondents are not under Ex.A-9, but as legal representatives of G.R. 20. The legal effect of the suit property being a ‘tope’ will be considered in the following paragraphs. But the respondents will not be entitled to any right merely by being G.R’s heirs. They must prove personal cultivation. The exhibits marked only show that the respondents do not even have the right to sell the trees on the land, they cannot allow anyone to remove the trees without the appellant’s permission and above all there is no evidence of personal cultivation. 21. In the decision reported in Thiagaraja Sendar v. Sri Pasupatheswararswami Devasthanam, (1979)1 M.L.J. 437 , the learned Judge held as follows: "The definition of "tope" does not exclude the cultivation of crops other than fruit or nut-bearing trees. It only emphasizes that the land must contain a group of fruit or nut-bearing trees as constituting the main crop in that land. On the evidence on record, in the present case there was no doubt whatever the suit land was predominantly a coconut tope. The evidence showed that in an area measuring 53 cents, there was as many as 48 coconut trees. On the evidence on record, in the present case there was no doubt whatever the suit land was predominantly a coconut tope. The evidence showed that in an area measuring 53 cents, there was as many as 48 coconut trees. The question was whether the suit tope was immune from the protective provisions of the Act. Sec.51(iv) of the Tamil Nadu Act (LVII of 1961) is quite clear and says the Act shall not apply to such topes so long as they continue to be used for such purposes as are provided in the Section. The expression "converted" occurring in Sec.51(iv) of the Act is not a term of art and it has not been used in any technical sense by the Legislature and all that it means is that if the land once becomes a tope as defined in Sec.2(29) of the Act, then the land must be regarded as having been converted into a tope as contemplated in Sec.51(iv) of the Act, and it would fall outside the scope of the Act and it will only cease to be so exempt if the land becomes reconverted into something other than a tope." 22. In this case also there is evidence to show the main user of the land is as a coconut tope and therefore the above decision applies to the suit property. In the above case also there was evidence to show that the tenant had raised punja crops. The learned Judge held that even assuming that this punja crops were raised the suit property would be a tope. 23. In the decision reported in A.Arunachalam Pillai v. Sri Mayuranathaswamy Temple, (1980)2 M.L.J. 247, the Division Bench of this Court held that Act 57 of 1961 does not lay down that for a property to be treated as tope the land should have no other crop on it except fruit or nut bearing trees. The Division Bench pointed out to the use of the words, "constituting the main crop in such a land". The Division Bench pointed out to the use of the words, "constituting the main crop in such a land". This is what the learned Judges of our Court said: "The legislature had advisedly used the words ,"constituting the main crop in such land", as otherwise the intention of the Legislature to exclude topes from the operation of the Act would get defeated by a lessee raising vegetables or agricultural crops on small portions of lands and then contending that by reason of negligible portions of the land being used for cultivation purposes the character of the land had become changed from tope to cultivable land. The proviso to Sec.51(iv) states that the exemption granted under the Section will have force as long as the land continues to be orchard, tope or arecanut garden. From this also it can be deduced that by reason of some crops or vegetables being raised or grown in small areas of an orchard, tope or arecanut garden, the land will not cease to be an orchard, tope or arecanut garden. Thus reading together Sec.2(29) and Sec.51(iv) along with its proviso, it is patently clear that a land which constituted an orchard, tope or arecanut garden at the inception of the lease will not cease to be a land of the same character just because the lessee had put small portions of the land to some agricultural use." This case also applies to the facts of the present case. 24. In the decision reported in G.Natesa Nainar v. Sri Karikudinathaswamy Devasthanan, (1985)1 M.L.J. 175 , the learned Judge held that when there is no dispute that the respondent being a ‘temple’ is a public trust within the meaning of the Act and even assuming that the respondents had obtained rights as cultivating tenants only the provisions of Act 57 of 1961 would apply which in turn would mean that the provisions of Act do not apply to tope. The learned Judge in that case negated the claim of the appellant that he was cultivating tenant in possession of the suit property. This decision also applies to the present case. 25. The learned Judge in that case negated the claim of the appellant that he was cultivating tenant in possession of the suit property. This decision also applies to the present case. 25. In the decision reported in R.Saravanan v. Sri Vedaranyeswaraswami Devasthanam, (1989)2 L.W. 374, this Court held that: "After carefully analysing the various provisions of this Act, it will clearly go to show with regard to the cultivating tenants under the public trusts, a separate piece of legislations has been found necessary. It was this which was carved out from the Cultivating Tenants Protection Act. Therefore, if a tenant had obtained his tenancy under public trusts within the meaning of the Act, the Cultivating Tenants Protection Act could not and would not apply because there cannot be over-lapping of both the Acts. To put the matter beyond doubt, Sec.62 of the Tamil Nadu Public Trusts Act had been enacted. Therefore, with the commencement of this Act i.e., on and from 12th April, 1961, the Tamil Nadu Cultivating Tenants Protection Act ceased to apply by reason of the repeal". So the Court came to the conclusion that the appellant cannot claim rights as a cultivating tenant against the temple. This also applies to the present case. Finally, the decision in Arulmighu Swaminathaswami Devasthanam, Swamimalai v. Jaganathan, (2001)1 L.W. 562 which is almost identical to the facts of the case wherein the learned Judge relying on all the judgments referred to herein before came to the conclusion that Cultivating Tenants Protection Act has no application to temple properties, which are topes and the tenants cannot claim any right under the same. Further the learned Judge also held that as far as properties under a public trust are concerned Revenue Authorities also have no jurisdiction to entertain any application under the RTR Act. Therefore, from the discussion in the above paragraphs it is clear that the respondents are governed only by Tamil Nadu Public Trusts Act. Since they are lessees of lands which are topes, they are not entitled to any protection since Sec.51 exempts topes from provision of the Act. 26.The effect of the previous proceedings on the present case. As stated by the learned senior counsel for the respondent the past proceedings can be grouped into three. Since they are lessees of lands which are topes, they are not entitled to any protection since Sec.51 exempts topes from provision of the Act. 26.The effect of the previous proceedings on the present case. As stated by the learned senior counsel for the respondent the past proceedings can be grouped into three. The earlier suit O.S. No.55 of 1963 was for a declaration that the lease of a tope by the appellants to the respondent is a valid one. In this case, the learned Judge held as follows: "Sec.51 of the Madras Public Trust Act clearly exempts a tope from the application of the Act. When the tope is exempted from the application of the Act then the provisions of the Madras Public Trust Act would not apply. Once the provisions of the Madras Public Trust Act is applicable then only the provisions of the Madras Cultivating Tenant Protection Act would not apply. In this case, the suit coconut tope clearly falls under the exemption provided under Sec.51 of the Madras Public Trust Act. Hence, issue No.3 is answered in favour of the plaintiff." 27. This of course, is totally in contradiction with the ratio in the various decisions referred to above. But the learned counsel for the respondent would submit that this question has acquired finality and therefore, the finding of the learned Subordinate Judge, Ramnad in the above suit has become final. Against this judgment no appeal was filed. But, in that case according to G.R. whose legal representatives are the respondents the lease period came to an end on 30.6.1963 when he surrendered the nanja lands retaining only the tope. There is a specific reference to the word tope. "Hence plaintiff has proved that there was a fresh lease of the suit coconut tope for a period of three years from 1.7.1963." This again reinforces the earlier finding that the property in dispute was only a tope. 28. A perusal of the earlier judgments shows that there is no dispute that the suit property is ‘a tope’ and that the appellant is a temple and ‘a public trust’. Though the question regarding the right of Gurusamy Raja as a cultivating tenant was not materially in issue, it was held so in the judgment in O.S. No.55 of 1963. The subsequent suits and appeals did not differ from this. 29. Though the question regarding the right of Gurusamy Raja as a cultivating tenant was not materially in issue, it was held so in the judgment in O.S. No.55 of 1963. The subsequent suits and appeals did not differ from this. 29. A.S. No.884 of 1979 arose from the last of the suits between the parties. The Division Bench deciding the appeal declined to accept the contention that the decision in O.S. No.55 of 1963 would operate as res judicata since that would amount to saying that in spite of the repeal of Tamil Nadu Act 25 of 1955 the appellant- temple will not be governed by the Tamil Nadu Act 57 of 1961. They relied on the decision reported in Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970)2 S.C.J. 585: A.I.R. 1971 S.C. 2355, in which it was held as follows: "But the doctrine of res judicata belongs to the domain of procedure, it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in is sue may be res judicata in another proceeding between the same parties: the "matter in issue" may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent Court is finally determined between the parties and cannot be reopened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding nor when the earlier decision declares valid a transaction which is prohibited by law". Therefore, the Division Bench left open the question of the status of the appellant under Act 57 of 1961 and they also pointed out that in all the earlier decisions there was an assumption regarding the status of the appellant. The learned senior counsel would rely on the decision reported in Sree Narayana Dharmasangham Trust v. Swami Prakasananda and others, (1997)6 S.C.C. 78 , wherein it was held that even an order of the Supreme Court dismissing the Special Leave Petition in limine would operate as a final order between the parties and the order of the High Court would stand merged with the appellate order of the Supreme Court. So according to Mr.R.Thiagarajan, learned senior counsel the dismissal of the Special Leave Petition between the parties would stand in the way of reopening the same issue. So according to Mr.R.Thiagarajan, learned senior counsel the dismissal of the Special Leave Petition between the parties would stand in the way of reopening the same issue. To counter this the learned counsel for the appellant relied on Kunhayameed and others v. State of Kerala and others, (2000)6 S.C.C. 359 , in which the Supreme Court held as follows: "Dismissal of SLP by the words "dismissed on merits" would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. Neither doctrine of merger nor Art.141 of the Constitution is attracted to such an order. The issue can be looked at from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage." 30. In the case relied on in the State’s Special Leave petition the Supreme Court dismissed since it decided that it was not a fit case for grant of leave. It was a non-speaking order. It only mean that the Supreme Court was not inclined to exercise its appellate jurisdiction. Therefore, the High Court was held to still have the right to review its own order and that the earlier order of the High Court did not get merged with the order passed by the Supreme Court. 31. In this case too even notice was not ordered and the Supreme Court dismissed the Special Leave Petition upon hearing the counsel for the petitioner. Therefore, following Kunhayameed v. State of Kerala, (2000)6 S.C.C. 359 , there is no merger. Therefore, the decision in A.S. No.884 of 1979 leaving the status of respondents undecided and open is the final one and the decision in the other suits do not stand in the way. 32.The issue of res judicata. Therefore, following Kunhayameed v. State of Kerala, (2000)6 S.C.C. 359 , there is no merger. Therefore, the decision in A.S. No.884 of 1979 leaving the status of respondents undecided and open is the final one and the decision in the other suits do not stand in the way. 32.The issue of res judicata. The learned counsel for the appellant referred to Allahabad Development Authority v. Nasiruzzaman and others, (1996)6 S.C.C. 424 . In that case, it was held that the principle of estoppel and res judicata does not apply where to give effect to that would be to counter some statutory direction or prohibition. 33. In a decision reported in M.V.P.B. Nammalwar v. Commissioner, H.R. & C.E. (Admn.) Department, (1997)2 M.L.J. 191 : A.I.R. 1997 Mad. 287, the jurisdictional question as regards to the applicability of Act namely H.R. & C.E. Act, 1927 came up for consideration. The question whether Dahshina Murthi Madam is a Madam or a Samadi was an issue. Then the Division Bench in that case also considered the effect of two conflicting judgments between the same parties, and they held thus: “The principle is that even assuming that the later judgment under Ex.A-6 was contrary to the earlier judgment under Ex.A-10 in A.A.O. No.472 of 1951, the later judgment alone has to be upheld and not the earlier judgment. This has been considered in the decision reported in Rathinasabapathi Kounder v. Sarangapani Kounder, 1976 T.L.N.J. 114. Natarajan, J. in the above judgment has considered the following few judgments in this aspect: (1) Matur Seshayya v. Sri Raja Venkatachari, 31 M.L.J. 219: A.I.R. 1917 Mad. 950; (2) Rukmani Ammal v. Kucharraja Narasimha Iyer, 41 M.L.J. 54: A.I.R. 1921 Mad. 612 and (3) Kailsetti Subbarayadu v. Pogadala Balarassappa, A.I.R. 1955 A.P. 194. It is useful to extract para. 2 of the above judgment as under:”The argument is that the settled principle of law is that if there are two judgments interpartes of a conflicting nature, the later adjudication should be taken as superseding the earlier. 612 and (3) Kailsetti Subbarayadu v. Pogadala Balarassappa, A.I.R. 1955 A.P. 194. It is useful to extract para. 2 of the above judgment as under:”The argument is that the settled principle of law is that if there are two judgments interpartes of a conflicting nature, the later adjudication should be taken as superseding the earlier. In 31 M.L.J. 219 at 220, it was held as follows: “We think that, on principle, in cases of judgments inter partes the later adjudication should be taken as superceding the earlier.” The Bench held that the same rule would apply even if one of the parties to the action had not raised a contention which was projected for the first time in the later action. That view is found in the following words: The fact that the tenants did not choose to plead the adjudication of 1993 in bar of the trial afresh of the same issue as to the rates of the rent cannot make any difference, as regards the operation of that determination as res judicata any more, than failure to let in a piece of evidence which might have resulted in a determination other than the actual finding.“This ratio was followed the second case 41 M.L.J. 54 and the Bench held as follows:”But where the rights obtained under two decrees both binding on both sides are in conflict with each other, the rights under the later decree must prevail. This follows from general principles of jurisprudence; and I need refer only judgment of a single judge of the Andhra High Court in A.I.R. 1955 A.P. 194 at 195. Having regard to the ratio in these cases there can be no doubt that the view of the subordinate judge that the earlier of the two judgments should prevail cannot be sustained. It must be noted that L, the decree holder was not a party to the earlier suit, whereas in the later suit she had impleaded all the concerned persons as party defendants. It must be noted that L, the decree holder was not a party to the earlier suit, whereas in the later suit she had impleaded all the concerned persons as party defendants. Having failed to contend in the later suit that the gift deed had been cancelled by compromise, it is not open to the parties to that suit or their successors-in-interest to now contend that the decree in the earlier suit should prevail and the finding of the latter suit should be ignored." This was relied on by the learned counsel for the appellant to show that after the decision in A.S. No.884 of 1979 which was subsequent to S.A. No.302 of 1975, the judgment later in point of time will alone prevail and the consequence is that the status of the respondents as cultivating tenants is undecided and left open. Therefore, following the decision reported in M.V.P.B. Nammalwar v. Commissioner, H.R. & C.E. (Admn.) Department, (1997)2 M.L.J. 191 : A.I.R. 1997 Mad. 287, it is now open to this Court now to give a finding in this regard. The learned senior counsel for the respondent referred to the decision reported in 1924 L.W. 779 which was a decision of the Privy Council. In that the question regarding Jotedari rights was decided. The trial Court did not consider the question necessary to be determined. But the Appellate Court proceeded to decide it. The Privy Council said that if the learned Judges think that the issue unnecessary they would have said so and not decided it. In the decree no reference to the tenancy right was made but a decree for possession was given. The question whether such possession was free of the alleged tenancy right was left untouched. When the question arose whether the decision on this right would operate as res judicata the Privy Council said, "We ought not, we think, to assume that the Judges discussed a question, which was irrelevant to the case, and then granted no relief in respect of it; but rather that as they had discussed and negatived the alleged tenancy right in the judgment they intended to, and did, give a decree which should give effect to these findings. If so, the learned Judges’ decree in effect gave to the respondents before us a right to the lands in that suit free of the alleged tenancy right claimed. If so, the learned Judges’ decree in effect gave to the respondents before us a right to the lands in that suit free of the alleged tenancy right claimed. We are of opinion therefore that the issue as to the appellants’ right is res judicata." 34. The learned senior counsel would therefore, submit that the decision in the earlier suit regarding the status as cultivating tenants whether necessary or unnecessary for the question had been decided and therefore, would operate as res judicata. In contrast we have the decision reported in Sajjadanashin Sayed Md. B.E.EDR (D) by L.Rs. v. Musa Dadabhai Ummer and others, (2000)3 S.C.C. 350 relied on by the learned counsel for the appellant, where the question of what are matters directly and substantially in issue and what are collaterally and incidentally in issue and what is the test to distinguish between the two were specifically discussed. In that case the suit was filed in 1928 under Sec.92, C.P.C. the District Judge held that the Wakf was a private Wakf. This finding was pleaded to be res judicata in the proceedings out of which the above decision arose. The Supreme Court held that after the decision by the Bombay Public Trusts Act 1950, the definition of Wakf Board was widened and therefore, the earlier decision would not operate as res judicata in the latter proceedings. The Supreme Court also held thus, Practice and Procedure - Precedent - An earlier decision which is binding between the parties loses its binding force if between the parties a second decision decides to the contrary - Then, in the third litigation, the decision in the second one will prevail and not the decision in the first." The Supreme Court held thus: "The words used in Sec.11, C.P.C. are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only "collaterally or incidentally"in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where that matter is directly and substantially in issue. The fundamental rule is that a judgment is not conclusive if any matter came collaterally in question. Judicial decisions have however held that if a matter was only "collaterally or incidentally"in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where that matter is directly and substantially in issue. The fundamental rule is that a judgment is not conclusive if any matter came collaterally in question. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter is the principal issue. The expression"collaterally or incidentally" in issue implies that there is another matter which is "directly and substantially" in issue". and held that when there are two proceedings between the same parties relating to the same issue the earlier decision loses its binding force if there is a second decision deciding to the contrary then for the purpose of the third litigation the latter decision will prevail. The final decision in this regard was that of the Division Bench and it was held therein that there had been no proper decision regarding the status of the appellant and therefore, the earlier findings were set aside and the question left open. This decision has now become final. The learned Judges set aside the trial Court’s findings not only on facts that there was no determination of the status of the appellants (respondents herein) as cultivating tenants but also on law that a decision in a previous proceedings cannot be considered as conclusive between the parties if it is in derogation of the rule declared by legislature and also because the finding whether G.R. was entitled to benefits of Tamil Nadu Act 25 of 1955 was wholly unnecessary for the adjudication in O.S. No.55 of 1963 and therefore, Sec.11 will not come into play. 35. In the decision reported in Sajjadanashin Sayed Md. B.E.EDR (D) by L.Rs. v. Musa Dadabhai Ummer, (2000)3 S.C.C. 350 , there has been a detailed discussion in this regard. Reference was made to Halsbury’s Laws of England and the Supreme Court held that, "14. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. v. Musa Dadabhai Ummer, (2000)3 S.C.C. 350 , there has been a detailed discussion in this regard. Reference was made to Halsbury’s Laws of England and the Supreme Court held that, "14. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression "collaterally or incidentally" in issue implies that there is another matter which is "directly and substantially" in issue (Mulla’s Civil Procedure Code, 15th Edn., p.104) Halsbury says (Vol.16 para 1538) (4th Edn.) that while the general principle is clear, "difficulty arises in the application of the rule, in determining in each case what was the point decided and what was the matter incidentally cognizable, and the opinion of Judges seems to have undergone some fluctuations." They also referred to Mulla. "It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on th facts of each case. A material test to be applied is whether the Court considers the adjudication of the issue material and essential for its decision." 36. The Supreme Court referred to three cases where inspite of a specific issue and an adverse finding in an earlier suit the finding was treated as not res judicata, as purely incidental, auxiliary or collateral and not necessary for the case foundation. The learned Judges also referred to Corlpus Juris Secundum where it is stated thus, "Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily in volved, the judgment is not conclusive on the question of ownership or title." 37. The same reasoning has been adopted by the Division Bench in Manjammal v. Arulmigu Nachadaithavirtharulia Swami Thirukoil, 100 L.W. 32 to arrive at the conclusion that for deciding O.S. No.55 of 1963 all that was necessary was the validity of the contract of lease which if upheld would entitle the plaintiff to injunction from interference with possession. In this context the learned Judges held that the decision that G.R. was a cultivating tenant in O.S. No.55 of 1963 was incidental and needless. The conclusion arrived at by the Division Bench in 100 L.W. 32 regarding the bar of res judicata is in accordance with the principles that have been followed and enunciated in Sajjadanashin Sayed Md. B.E.EDR (D) by L.Rs. v. Musa Dadabhai Ummer, (2000)3 S.C.C. 350 . The principles laid down in M.V.P.B. Nammalwar v. Commissioner, H.R. & C.E. (Admn.) Department, (1997)2 M.L.J. 191 : A.I.R. 1997 Mad. 287, if followed would have the same result, viz., by virtue of the decision in A.S. No.884 of 1979 (100 L.W. 32) which is latest in point of time, the decisions in the earlier proceedings will not operate as res judicata. 38. Further, the question whether Act 25 of 1955 will have any application to properties belonging to public trusts, after Act 57 of 1961 was enacted is a pure question of law. Facts are not necessary to decide this question, so a decision in this question cannot operate as res judicata. 39. In Supreme Court Employees Welfare Association v. Union of India, A.I.R. 1990 S.C. 334, the Supreme Court held, "A decision on an abstract question of law unrelated to facts which give rise to a right cannot operate as res judicata." There can be no dispute that the owner of the suit property is a temple and therefore, a public trust; and that the suit properties is a tope. These are findings of facts in all the earlier proceedings. The only question is which Act is applicable and it is an issue of law. 40. In Allahabad Development Authority v. Nasiruzzaman, (1996)6 S.C.C. 424 , the Supreme Court held, "In view of the above ratio, it is seen that when the legislature has directed to act in a particular manner and the failure to act results, in a consequence, the question is whether the previous order operates as res judicata or estoppel as against the persons in dispute. When the previous decision was found to be erroneous on its face, this Court held in the above judgment that it does not operate as res judicata. We respectfully follow the ratio therein. The principle of estoppel or res judicata does not apply where to give effect to them would be to counter some statutory direction or prohibition. A statutory direction or prohibition cannot be overridden or defeated by a previous judgment between the parties. This decision also applies to the case." 41. For all the above reasons the earlier case will not operate as res judicata and the judgment in A.S. No.884 of 1979 leaving the status undecided is final. The respondent’s rights can only be decided according to Act 57 of 1961 and not Act 25 of 1955. 42.The effect of the proceedings before the tenancy Tahsildar and the writ preferred in that regard. The learned senior counsel for the respondents referred to the proceedings before the record of tenancy Tahsildar, the respondents herein had applied to the record of tenancy Tahsildar to have their names entered as cultivating tenants. The Writ Petition No.3614 of 1987 was filed by the appellants herein for a prohibition against the Record Officer and Tahsildar, Rajapalayam Taluk not to make entries in the names of the respondents 2 to 5 in revenue records. The writ petition was dismissed on 14.7.1994. A copy of this order has been produced before me. When the matter came up for hearing the counsel for the petitioners before the writ Court the appellants herein were absent. The counsel for the respondents 2 to 5 submitted that the dispute between the parties had already been concluded. The extract from the said order may be relevant. “It is submitted by the counsel for the respondents 2 to 5 that the dispute between the parties had already been concluded and it has been held in their favour that they are entitled for the entries in the revenue records in their names. When the matter is concluded between the parties in a civil proceedings, the respondents 2 to 5 have asked for entering of their names in the revenue records and such proceedings is pending before the 1st respondent. When the matter is concluded between the parties in a civil proceedings, the respondents 2 to 5 have asked for entering of their names in the revenue records and such proceedings is pending before the 1st respondent. When the parties are entitled for the entry as per the judgment of the Civil Court in O.S. No.55 of 1963 on the file of the Sub Judge, Ramanathapuram at Madurai and later on O.S. No.54 of 1970 instituted by the father of respondents 2 to 5 was decreed and the appeal, A.S. No.20 of 1973 filed by the petitioner was dismissed by the District Court at Ramnad, thereafter second appeal S.A. No.302 of 1975, before this Court also was dismissed holding that the view taken by the Sub Judge in O.S. No.55 of 1963 even though was wrong, the petitioners cannot go behind it. Against the judgment of this Court, a Special Leave Petition, S.L.P. No.4688 of 1978, was preferred before the Supreme Court, which was also dismissed.” It is clear from the above that the learned Judge was not made aware of the decision in A.S.No.884 of 1979 reported in Manjammal v. Arulmigu Nachadaithavirtharulia Swami Thirukoil, 100 L.W. 32, wherein the findings were set aside and the dispute was still at large. It is apparent that the learned Judge was persuaded to dismiss the writ petition only on the ground that the dispute had attained finality. But admittedly the matter had not attained finality so the order of dismissal of W.P. will not help the respondents. 43. In the decision reported in Arulmighu Swaminathaswami Devasthanam, Swamimalai v. Jaganathan, (2001)1 L.W. 562 , this question came up for consideration and the learned Judge held, “15. When it is held that the Cultivating Tenants Protection Act has no application to the tope properties and the tenant cannot claim any right under the Cultivating Tenants Protection Act, it goes without saying that the tenant has no right to invoke the provisions under the Tamil Nadu Cultivating Tenants Protection Act. When the initiation of the proceedings itself is not lawful and by virtue of Sec.62 of the Tamil Nadu Cultivating Tenants Protection Act stands repealed, so far as the trust properties are concerned, then no revenue authorities can have any jurisdiction to entertain any application under the repealed Act. When the initiation of the proceedings itself is not lawful and by virtue of Sec.62 of the Tamil Nadu Cultivating Tenants Protection Act stands repealed, so far as the trust properties are concerned, then no revenue authorities can have any jurisdiction to entertain any application under the repealed Act. Hence the revenue authorities are in total lack of jurisdiction to entertain any application by the tenants under the Tamil Nadu Agricultural Lands Record of Tenancy Act. If that be so, Ex.A-13 being the proceedings without jurisdiction is null and void and as such the same is vitiated for want of jurisdiction. Consequently, the same cannot be considered.” So when Cultivating Tenants Protection Act has no application to tope properties belonging to a public trust, the Revenue Authorities can have no jurisdiction to entertain any application under the Repealed Act. Therefore, whether the respondents’ name were recorded as cultivating tenant or not is really neither here nor there since it has now been held that Act 25 of 1955 will have no application to the suit properties and only Act 57 of 1961 will apply. In the decision reported in G.Natesa Nainar v. Sri Karikudinathaswamy Devasthanan, (1985)1 M.L.J. 175 , this Court has held that the provisions of Tamil Nadu Act 10 of 1969 pertain to the preparation of the record and are not declaratory of the rights of the cultivating tenant. Therefore, the respondents cannot seek succour from their successes in any proceeding before the Tenancy Tahsildar. 44. Finally, the learned counsel for the respondent submitted that in any event the decision of the respondents could not be interfered with since they are not trespassers by any means. He relied on the two decisions Ram Rattan and others v. State of Uttar Pradesh, A.I.R. 1977 S.C. 619, in which it was held thus: “A true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing, and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law.” and Krishna Ram Mahale (dead) by his L.Rs. v. Mrs. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law.” and Krishna Ram Mahale (dead) by his L.Rs. v. Mrs. Shobha Venkat Rao, A.I.R. 1989 S.C. 2097, in which it was held thus, “It is a well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In the instant case the plaintiff had filed a suit for recovery of possession of premises upon which she had entered as a licensee to conduct the business of restaurant; she was subsequently dispossessed by the licensor unlawfully and behind her back. Immediately thereafter she filed suit for recovery of possession.” Therefore, the learned senior counsel would say that since they are in possession lawfully they could not be dispossessed except by recourse to law. In contrast to this the learned counsel for the appellant relied on Arulmighu Ammachi Ayyanar Mandu Koil v. Alagu Karuppannan Ambalam, (1996)2 L.W. 832 . In this decision the petitioner was the successful bidder and was in possession sought for injunction restraining the defendants from conducting the auction. The learned Judge held, “The respondents cannot hold the temple to ransom and claim equitable relief of injunction in a civil Court.” 45. In fact several of the decisions which have already been cited for the purpose of deciding whether Act 57 of 1961 would apply or Act 25 of 1955 have arisen out of the suits for injunction. In the decision reported in Thiagaraja Sendar v. Sri Pasupatheswararswami Devasthanam, (1979)1 M.L.J. 437 , there was a lease deed between the Temple and the appellant. The lease deed provided for inter-space cultivation. Even after the expiry of the period of lease the appellant continued in occupation of the topes and also paying the rent. Thus, the temple took proceedings for auction in the usufructs of the topes. The appellant issued a suit notice and filed a suit for permanent injunction restraining the respondent from the possession as a cultivating tenant. The High Court dismissed the suit holding that the tenant was not entitled to injunction. Thus, the temple took proceedings for auction in the usufructs of the topes. The appellant issued a suit notice and filed a suit for permanent injunction restraining the respondent from the possession as a cultivating tenant. The High Court dismissed the suit holding that the tenant was not entitled to injunction. In the decision reported in G.Natesa Nainar v. Sri Karikudinathaswamy Devasthanan, (1985)1 M.L.J. 175 , the appellant before this Court cannot claim right of possession as a lessee and as cultivating tenant and therefore, asked for injunction restraining interference with his possession. The learned Judge held that since the temple was a public trust the appellant was not entitled to any rights as a cultivating tenant and even though he may have raised punja crops he was only there as a licensee of the usufructs of the topes and therefore, he cannot claim possession as a cultivating tenant and refused to grant injunction. In the decision reported in R.Saravanan v. Vedarameshwara, (1989)2 L.W. 374, the appellant was the plaintiff who prayed for injunction restraining interference with his possession. The learned Judge held considering the effect of Secs.51, 52 and 62 of Act 57 of 1961 and came to the conclusion that the appellant has not right as cultivating tenant against the temple and therefore he is not entitled to injunction. 46. Finally, the decision reported in (2001)2 L.W. 291 was also a case where the tenant filed a suit for bare injunction against the Devasthanam, the Devasthanam resisted the suits stating that the suit is not maintainable because Devasthanam is entitled to auction the right to take the usufructs. The suit was decreed and the learned Judge held thus: “22. The suit having been laid in the year 1981 and now that almost 20 years over, this Court is of the view that even assuming the respondent is entitled for any compensation, he might have made it up by the enjoyment of the suit property which is the coconut tope for the past 20 years and as such the respondent is not entitled for any relief. The appellant is entitled to question the right to take the yield from the tope in order to augment their income”. 47. In this case after 1970 there has been no lease in favour of G.R. or his legal heirs. The appellant is entitled to question the right to take the yield from the tope in order to augment their income”. 47. In this case after 1970 there has been no lease in favour of G.R. or his legal heirs. They have continued in possession without renewal of lease and have enjoyed the suit tope. The respondents were fully aware that the H.R. & C.E. Act provided for any lease to be granted only by public auction. Inspite of this they produced Ex.A-9 claiming rights. Therefore, such a person cannot be heard to say he is entitled to injunction restraining the appellants from auctioning the suit tope. This objection is therefore, not accepted. Another reason also compels me to arrive at this conclusion. In the decision reported in Sri Madhavaperumal Devasthanam v. Tmt.Dhanalakshmi, (1996)1 L.W. 231 and relied on by the learned counsel for the appellant this is what the learned Judge says: “It should not be forgotten that an idol is in the position of a minor. It has been held in Biswanath v. Radha Ballabhji, A.I.R. 1967 S.C. 1044: (1967)2 S.C.J. 431, that an idol is in the position of a minor and when the person representing it leaves it in lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interests. The principle would certainly apply in a case where the persons in management of a temple have not been as diligent as is necessary in conducting a litigation on behalf of the temple. The Court can take notice of the fact that Executive Officers who are put in charge of the temple are changed periodically and in many a case, they do not get fully acquainted with the history or affairs of the temple. If there is some slackness on the part of the Executive Officer or even the trustees of the temple, it is the duty of the Court to see that the idol does not suffer thereby. Courts should be astute to protect the interests of an idol in any litigation.” And in the decision reported in The Executive Officer, Ardahanareeswarar Temple v. R.Sathyamoorthy and others, (1999)3 L.W. 227, the Supreme Court has held that the Courts have a general ‘parens patria’ jurisdiction over trust for charitable and religious purposes. Courts should be astute to protect the interests of an idol in any litigation.” And in the decision reported in The Executive Officer, Ardahanareeswarar Temple v. R.Sathyamoorthy and others, (1999)3 L.W. 227, the Supreme Court has held that the Courts have a general ‘parens patria’ jurisdiction over trust for charitable and religious purposes. Dakshinamurthy deposing as D.W.1 for temple, seems to have been more loyal to the respondents than need be, it is noteworthy that this same Dakshinamurthy was suspended by the appellant’s Executive Officer from 18.6.1992 as seen from the order of the Revenue Court which is impugned in the C.R.P. No.2278 of 1994. One is able to gauge the damage that may have been done to the temple’s interests by such persons. Reading between the lines, one guesses what may have transpired, so this is one another reason why the respondents cannot invoke the equitable relief of injunction. Therefore, for all the above reasons, the appeal is allowed. 48. Now we go to C.R.P. No.2278 of 1984, which is against the order of the Revenue Court, on an application filed by the respondent herein under Sec.4 of the Tamil Nadu Cultivating Tenants Payment of Arrears of Rent (Act 38 of 1990 in short). Sec.4 gives a cultivating tenant, who is in arrears of rent payable to the landlord for fasli year ending with 30.6.1989 and for any previous fasli years and outstanding on the date of publication of the Act the option to intimate his opinion in writing to the competent authority. The option is that he either has to pay the current rent and 1/4th of the arrears of the rent as specified in para 2 or to pay the current rent and 1/3rd of the arrears of rent specified in para 3 for availing relief under the said Act. The respondents exercised their option to pay the current rent and 1/4th of arrears of rent. Sec.5(2) deals with relief of payment of arrears of rent and states that any cultivating tenant may pay to the landlord or deposit in the Court or before the Competent Authority to the account of the landlord the current rent and 1/4th of the arrears on or before 31.3.1991. Sec.5(2) deals with relief of payment of arrears of rent and states that any cultivating tenant may pay to the landlord or deposit in the Court or before the Competent Authority to the account of the landlord the current rent and 1/4th of the arrears on or before 31.3.1991. The respondents herein assessed their arrears at Rs.37,500 and claimed to have deposited towards current rent a sum of Rs.27,500 and a sum of Rs.500 towards arrears of rent on the same date. The petitioners in the revision petition filed their counter stating that the respondents are not cultivating tenants since they are only lessees of the usufructs of the coconut topes and therefore, not entitled to the benefits of Act 38 of 1990. Reference was also made to the decision in A.S. No.884 of 1979 to support the petitioners’ case that the respondents were not tenants but only licensees. They denied the execution of the lease deed dated 5.8.1986. The reference was also made to the several suits that had to be filed by the petitioners herein for recovery of arrears of rent. The Revenue Court on a consideration of the materials before it ordered the application. The Revenue Court held that the respondents were entitled to the benefits of Act 57 of 1961 and were cultivating tenants governed by the provisions of that Act. It was also held that the suit property was used partly as a tope and partly as a cultivable land. Though the petitioners denied receipt of Rs.1000 as part payment on 27.3.1991 the learned Judge comes to the conclusion that the receipt was proved since it was paid to the temple’s lawyer. The Revenue Court also held that the rents for faslis 1389 to 1394 was time barred and accepted the claim of Rs.5,85,000 as expenses for digging 5 wells. 49. Mr.Parthasarathy attacked the order of the Revenue Court on the ground that the suit property being a tope the protection as a cultivating tenant was not available to the respondent. The Revenue Court also held that the rents for faslis 1389 to 1394 was time barred and accepted the claim of Rs.5,85,000 as expenses for digging 5 wells. 49. Mr.Parthasarathy attacked the order of the Revenue Court on the ground that the suit property being a tope the protection as a cultivating tenant was not available to the respondent. The term arrears of rent would take into account the entire arrears in a petition filed by the tenant and therefore, there was no justification to disallow the arrears for any fasli since it is time barred and payment to the lawyer not being contemplated under the Act would not amount to payment or deposit within the relevant date for the performance of the Act. As regards the Revenue Court rejecting the arrears of rent payable for faslis 1389 to 1394 is time barred. (sic.) 50. The learned counsel for the petitioner relied on the decision in Swamimalai Devasthanam v. T.Marimuthu and others, (1998)1 C.T.C. 213 . In that case an identical question came up for consideration. The Revenue Court had quantified the arrears of rent excluding certain amounts, which was held to be time barred. The learned Judge considered the provisions of Act 38 of 1990. As regards Secs.4, 5 and 7 which deal with option for payment of arrears of rent relief to be given on such deposit as is referred to the Act of payment of instalments respectively the learned Judge held as follows: “4. The Tamil Nadu Cultivating Tenants Arrears of Rent (Relief) Act, Act 38 of 1990, was enacted with a view of give relief to the cultivating tenants by discharging them from payment of all arrears of rent payable to the landlord or public trust for the fasli year ending with the 30th June, 1989 and for any previous fasli year and outstanding on the date of the publication of the proposed Act. If he pays the rent due for the current fasli year i.e., the 1st July, 1989 to the 30th June, 1990 in full and one fourth of the total amount of arrears of rent (without interest) which accrued due to the landlord or public trust for the period ending with the 30th June, 1989 on or before the 31st March, 1991: or if he pays the current rent in full on or before the 31st March, 1991 and one third of the total amount of arrears of rent (without interest) which accrue due to the landlord or public trust for the period ending with the 30th June, 1989 in five equal annual instalments and the first instalment shall be paid on or before the 31st March, 1991.” 51. After considering a number of cases, with respect to right to recover time-barred arrears, the learned Judge held that there is no difficulty to come to the conclusion that under Secs.5 and 7 the tenant is bound to pay these instalments on the basis of the entire amount payable on that date and that it can never mean that the tenant is liable to pay only the rent which is not time barred. Therefore, the order of the Revenue Court holding that the arrears in respect of certain faslis are time-barred is clearly erroneous in an application filed under Sec.4 of the Act 38 of 1990. The restriction imposed on the landlord to seek to recover time barred arrears are distinct from the tenant’s application to pay the entire arrears as on date. Therefore, the order of the Revenue Court excluding the time barred arrears of rent cannot be sustained and it is set arise. The Act also provides for relief to such tenants who have paid or deposited into Court or before competent authority the entire arrears of rent payable under Sec.5(1), (2) and (3) which should be read together. Sec.5(1) stipulates that all arrears of rent established shall be deemed to be discharged if a cultivating tenant pays to the landlord or deposits to the Court or before the competent authority to the account of the landlord in the manner satisfied in Sub-secs.(2) and (3). Sec.(2) states that this payment or deposit should be made on before 31.3.1991. Sec.5(1) stipulates that all arrears of rent established shall be deemed to be discharged if a cultivating tenant pays to the landlord or deposits to the Court or before the competent authority to the account of the landlord in the manner satisfied in Sub-secs.(2) and (3). Sec.(2) states that this payment or deposit should be made on before 31.3.1991. Sec.(3) directs that the Court in which the competent Authority before which the deposit is made shall cause the notice of the deposit to be issued to the landlord and determine after a summary enquiry whether the amount deposited represents the correct amount or if any further amount is due. ‘Payment’ is defined under the Act and so is ‘landlord’. This Act provides for relief to cultivating tenants in respect of arrears of rent. The preamble states that in view of the fact that the landlords may take action against cultivating tenants for eviction and for recovery of arrears of rent due to default in payment of arrears, the cultivating tenants should be given some relief as part of agrarian reforms. Therefore, the tenant’s liability to pay the entire arrears is deemed to be discharged on paying or depositing in the manner set out in the Act, the current rent plus 1/4th or 1/3rd of the arrears as the case may be, depending on the option. In such circumstances, the tenant who wants to avail of this benefit is bound to make the payment or deposit in the manner set down in the Act. Payment to the Advocate which is not borne out by the records of the temple is definitely not ‘payment’ or ‘deposit’ as per the Act. In the decision reported in Thulasi Ammal v. S.Mahamuni, (2000)2 M.L.J. 157 , which was relied on by the learned counsel for the petitioner the tenant claimed benefit under the Act. The tenant deposited a portion of the amount before the Civil Court before which the landlord had filed the suit for arrears of rent. The tenant claimed benefit under the Act for the balance. The learned Judge held that payment or deposit contrary to the provisions of the Act would not be proper payment. In the application filed for discharge, the Revenue Court directed the tenant to deposit a further sum. The tenant claimed benefit under the Act for the balance. The learned Judge held that payment or deposit contrary to the provisions of the Act would not be proper payment. In the application filed for discharge, the Revenue Court directed the tenant to deposit a further sum. Challenging this order, the civil revision petition was filed and it was contended therein that when a civil suit is pending the deposit should be made only in the civil Court and not the Revenue Court and the deposit made in the Revenue Court is not a proper deposit and the same cannot be discharged. This contention was accepted by the learned Judge and the application under Sec.4 before the Revenue Court was dismissed as not maintainable. 52. In the decision reported in Ammasai Gounder v. K.Namagiri, (1992)2 L.W. 679 , the learned Judge held thus: “When the Section speaks of Court or competent authority it does not leave the choice to the tenant. If a proceeding is before the Revenue Divisional Officer, who happens to be the competent authority under the Act, the deposit should be made only with the competent authority. It is not open to a tenant to make a deposit before the competent authority when the matter is before the Court. In cases in which decrees have already been passed the tenant should make the deposit only in Court. I have already referred to the definition of ‘Court’ in Sec.3(b). It speaks not only of the Court in which proceedings are pending but also of the Court, which has passed a decree and the Court to which the decree has been sent for execution. Sec.3(b)(i) clearly contemplates a situation in which a decree has been passed earlier and execution proceeding has not been instituted. If the legislature had thought that a deposit should be made before the competent authority in all events, it would have made such a provision. But the legislature did not intend to do so. The intention of the legislature is that in matters which had gone to Court, the deposit must be made with the Court so that the proceeding can be conveniently disposed of by the Court. In matters which had gone before the Revenue Court competent authority, deposits should be made before the competent authority, who shall dispose of the proceedings according to law. In matters which had gone before the Revenue Court competent authority, deposits should be made before the competent authority, who shall dispose of the proceedings according to law. Thus it is open to the tenant to make a deposit before the competent authority on the ground that on date of a publication of the Act there was no proceeding actually pending before a Court though a decree had been passed and an execution proceeding could be filed in that Court.” 53. Therefore, even when the deposit is made before the Civil Court or Revenue Court, this Court has held that there is no option to the tenant and the tenant must and strictly follow the rules and regulations. When it is so, payment made to the counsel which has not been “proved” cannot be held to be payment made to the landlord. 54. The Revenue Court held that only Act 56 of 1971 is applicable and that the respondents are cultivating tenants under the Act. In view of the discussion in this regard in A.S. No.20 of 1974, I hold that the suit property is a tope and exempt from the provisions of the Act. There is no legal basis for the Revenue Court to come to the conclusion that the suit property is partly ‘tope’ and partly land. This Court has repeatedly held that any intercepts cultivation will not change the predominant character of the property as ‘tope’. What was leased was only a ‘tope’ and it continued to remain thus. The respondents are not entitled to any benefits as a cultivating tenants under the temple. Therefore, the application under Sec.4 of the Tamil Nadu 38 of 1990 is not maintainable. The order of the Revenue Court excluding the arrears of rent payable in respect of certain faslis as time barred is also erroneous. The respondents not having made payments or deposited the rent as per the Act cannot invoke its benefit. 55. For the above reasons, the order of the Revenue Court is set aside. The civil revision petition is allowed. 56. For the reasons stated in paragraph Nos.1 to 43, the order of the trial Court in O.S. No.55 of 1963 is set aside. The Tr.A.S. No.367 of 1997 is allowed with costs.