Judgment :- K. SAMPATH, J. 1. The plaintiff in O.S. No. 171 of 1987 on the file of the Principal Subordinate Judge, Madurai is the appellant in A.S. No. 563 of 1989. The plaintiffs in O.S. No. 178 of 1982 on the file of the Principal Subordinate Judge, Madurai are the appellants in Tr. A.S. No. 504 of 2002. 2. The range of hills going by the nomenclature Azhagar Hills in Chellappanaickenpatti Village, Natham Taluk, Anna District, measuring 15838.4 acres within stated boundaries is claimed by the plaintiff temple in O.S. No. 171 of 1987 viz., Arulmighu Kallalagar Tirukoil, Alagar Koil, represented by its Executive Officer as belonging to it and recovery of possession as also injunction restraining defendants 1 and 2, who are respectively the State of Tamil Nadu, represented by Collector, Anna District, Dindigul, and Chief Conservator of Forest, Tamil Nadu Forest Department, Madras from in any way disturbing underground water source by digging well or in any other manner are sought. 3. The averments in the plaint in O.S. No. 171 of 1987 are as follows:— 3.1: the Temple is an ancient one and the plaint schedule Alagar Hills had always belonged to the plaintiff temple from time immemorial and are in the possession and enjoyment of the plaintiff temple. There are several other shrines and sacred spots such as Madavi Mandapam, Sambakodu Mandapam, Sri Rakkayee Amman, Vellimalai Andi of the plaintiff temple in the schedule mentioned hills. There are several sacred tanks and springs such as ‘Lingamma Naicker Vavi’, ‘Narayana Theppam”, Hanumar Theertham, Garuda Th eertham, Peria Aruvi, and Nupura Ganga - which flows into a river Silambaru supposed to have sprung from Vishnus anklet - at various places in the Hills. The water from the various springs is being used for the performance of rituals in the plaintiff temple. The holy water from Nupura Gangai is brought daily in pots by the priests for the rituals to the sacred idol of the plaintiff temple. The priests have also been granted inams for bringing the holy water. The water from the river is emptied in the irrigation tanks on the plains near the Temple. Many gardens have come up on the hills for the use of the plaintiff temple. The pathways to the various places of sacred spots in the hills have been in existence and maintained by the Temple. The water from the river is emptied in the irrigation tanks on the plains near the Temple. Many gardens have come up on the hills for the use of the plaintiff temple. The pathways to the various places of sacred spots in the hills have been in existence and maintained by the Temple. Thus, the entire hills have always been possessed and enjoyed by the plaintiff temple as its property. Worshippers had donated large number of cattle to the Temple. The cattle thus donated are reared in the hills and the forests on the hills have been used as grazing area by the cattle. Thus, the forest area also has been in the possession and enjoyment of the plaintiff temple from time, immemorial. On the northern part of the hills is also situate Sri Alagar Koil. Successive Governments starting from Pandia Kingdom, Nayak Kingdom, Mahomedan Kingdom and the British Regime had recognised the schedule mentioned hills as belonging to the Temple, the Temple also has been using the forest produce from the hills by leasing out collection of honey, tree barks cutting and in other ways. The fire wood from the forest in the schedule mentioned hills has been used in abundance in the kitchen of the plaintiff temple called ‘Madapalli’, the Temple also has been protecting the schedule mentioned hills by posting guards and by other means. In 1801 the East India Company assumed governance over the territory. Mr. Hurdis, the first Collector of Madurai and succeeding Collectors were having superinte ndence and control over the Temples properties including the schedule mentioned hills. On the passing of regulation VII of 1817, the Board of Revenue assumed control over the Temples properties including the schedule mentioned hills. All the previous records, deeds, account books and other documents of the plaintiff temple were taken over by the Government. The income and expenditure relating to Alagar hills were entered in the accounts of the Government to the credit of the Temple. From this it can be seen that the schedule mentioned Alagar hills was administered and managed as the plaintiff temples property. The Board of Revenue had prepared a list of properties that be longed to the plaintiff temple and Alagar hills was included as a property belonging to the Temple. In spite of several requests made on behalf of the plaintiff temple, the list was not furnished to the plaintiff. The Board of Revenue had prepared a list of properties that be longed to the plaintiff temple and Alagar hills was included as a property belonging to the Temple. In spite of several requests made on behalf of the plaintiff temple, the list was not furnished to the plaintiff. In subsequent years the then trustee of the plaintiff temple required the Tahsildar of Melur, Deputy Collector and Treasury Officer to grant copies of the Temple accounts maintained by the Taluk Office during the period the Board of Revenue was in control. A clerk was appointed to write entries relating to the accounts of the Temple and certified copies were granted. In those copies the expenses relating to the maintenance of Alagar hills, and the income derived therefrom are mentioned confirming the fact that Alagar hills was administered by the Board of Revenue as the property belonging to the plaintiff temple. In the first settlement, Paimash Nos. 791 to 818 measuring 16832 acres were mentioned as hills and the other paimash numbers were shown as relating to the Temple, tanks, gardens etc., The classification of the lands clearly reveals that these lands were in enjoyment and that the plaintiff temple had been in the possession and enjoyment of Alagar hills, the schedule mentioned property. However, in the subsequent settlement the entire lands and paimash numbers 791 to 818 were surveyed as S. No. 758. After the passing of Religious Endowments Act XX of 1863 the Government relinquished its supervision and control over all the Temple properties and they were handed over to the respective temple committees to be formed as per the provisions of the said Act. The Government handed over the records and documents relating to the management and the properties belonging to the Temples to the Temple authorities. Unfortunately, the Government did not hand over the records, documents and list of properties relating to the management of the plaintiff temple, nor were the properties including Alagar Hills, handed over to the plaintiff. The, then, temple committee was unaware that the schedule mentioned Alagar hills belonged to the plaintiff temple as the Board of Revenue had not handed over the list of properties to the Temple committee. 3.2: In 1893 the Government declared the Alagar hills as a reserve forest as per the provisions of Section 25 of the Forest Act (hereinafter referred to as ‘the Act’). 3.2: In 1893 the Government declared the Alagar hills as a reserve forest as per the provisions of Section 25 of the Forest Act (hereinafter referred to as ‘the Act’). As per the provisions of Section 25 of the said Act, only forests at the disposal of the Government alone can be declared as reserve forests. In the present case the Government having come to manage the properties pursuant to Regulation No. VII of 1817 wrongly declared the schedule property as a reserve forest. As per general law, only unoccu pied lands and forests are presumed to be the properties of State. The suit property was never unoccupied lands. The plaintiff temple had been exercising right of possession and enjoyment even at the time when East India Company assumed governance over the Territory. When the Government was exercising acts of possession and control, it was only as a Trustee or Manager of the Temple as per the provisions of Regulation VII of 1817. The Government had no independent control or possession of the property. Thus, the order under Section 25 of the Act declaring the schedule mentioned Alagar hills as reserve forest is wrong, illegal and ultravires. By the said G.O., the Government cannot become the owner of the Alagar hills and get rid of their fiduciary relationship of a trustee towards the Temples properties and refuse to hand back the hills to the plaintiff temple. There was protest over the Notification in the year 1925. On 20.7.1926 the then temple committee of the plaintiff temple mentioned in the address of welcome to His Excellency the Governor of Madras that schedule mentioned Alagar hills belonged to the plaintiff temple and thus protested the notification declaring Alagar hills as reserve forest. In 1938 the then trustee of the plaintiff temple Thiru K.N. Radhakrishnan sent a memorial to the then Government of Madras requesting inter alia to restore back Alagar hills to the plaintiff temple. This was followed by Section 80 C.P.C notice dated 4.8.1938. The Government received the notice, but did not send any reply nor did they restore back the schedule mentioned Alagar hills. On receipt of the memorial, the Government considered the matter. The District Forest Officer sent a report dated 27.3.1939 to the Conservator of Forests, Coimbatore about Alagar hills. A copy of the said report was sent to the trustee of the plaintiff temple. On receipt of the memorial, the Government considered the matter. The District Forest Officer sent a report dated 27.3.1939 to the Conservator of Forests, Coimbatore about Alagar hills. A copy of the said report was sent to the trustee of the plaintiff temple. In the said report, the Forest Officer has mentioned that the valley called Thirusilambaru is the natural appendage of Alagar Koil because there are many shrines of Alagar Koil in the subsidiary places in the said valley. He merely considered the question in his report whether the Temple administration could maintain the forests without maintaining the forests free of thefts. The Government of Madras sent an order in G.O. No. 1289 Revenue dated 26.5.1939 stating that the request by the then trustee for restoration of Alagar hills to the plaintiff temple was declined. The Government did not consider the legal question whether the Government was under a legal duty to restore the hills to the plaintiff temple or not. There was no reply sent to the lawyer notice issued under Section 80 C.P.C. 3.3: The Forest Department is maintaining the Alagar hills. The actions of the officials of the Forest Department are causing trouble and hindrance to the performance of religious rites in the various holy spots situate in Alagar hills. At the time of filing the suit, the forest officials in the process of forming a deer park are digging a deep well near Theertha Thotti, where there is a natural water fall. The deity is used to be taken in procession to Theertha Thotti every year and the water in the natural falls is used for religious purposes. The worshippers of the plaintiff temple also go in abundance to the Theertha Thotti to have a holy bath, which is a sacred fall. The action of the forest officials affects the springs leading to the water falls and in that process the water falls will become dry. The officials of the plaintiff temple sent telegrams to the officials of the Forest Department to stop the digging up the well. They did not stop digging. Thus, the possession of Alagar hills with the Government is causing hindrance and hardship to the performance of religious functions of the plaintiff temple in several holy spots within Alagar hills. It is no longer possible to allow the Government to continue to have possession of Alagar hills. They did not stop digging. Thus, the possession of Alagar hills with the Government is causing hindrance and hardship to the performance of religious functions of the plaintiff temple in several holy spots within Alagar hills. It is no longer possible to allow the Government to continue to have possession of Alagar hills. In these circumstances, the present suit has been tiled for the reliefs already stated. The suit is also not barred by limitation as the Government took possession of the property under the provisions of Regulation VII of 1817 as trustee or Manager of the Temple and possession was not restored back as per the provisions under Act XX of 1863. In view of Section 10 of the Limitation Act, the suit is maintainable. The suit is filed after 2 months from the date of receipt of Section 80 C.P.C notice by the defendants. 3.4: There are 77 documents listed in the plaint under Order 7 Rule 14 C.P.C. It is mentioned that the documents of the years 1835 to 1897 are available with the Deputy Collector, Huzur Treasury, Madurai District. 75 documents are stated to be with the Government. The other two documents are copies of Section 80 C.P.C notice with acknowledgments due respectively from the first and the second defendants. 4. The first defendant-State filed a written statement and the same was adopted by the second defendant. The contents of the written statement of the first defendant are as under:— 4.1: The first defendant besides denying the title of the plaintiff temple to the suit Alagar Hills states further as follows:— There is a range of hills called Alagar hills covered with forest of an extent of 6811.38 hectares and the boundary of R.F. 37.2 miles (containing 396 R.F. stones). The Alagar Hills are reserve forests. They are notified under Notification No. 187 dated 11.10.1883 published at pages 719 to 721 of Gazette dated 13.11.1883. They are notified as Alagar Hills and not Alagar Koil. They are situate about 20 km north of Madurai City. The hills are the northern boundary for Madurai City and its suburbs. Alagar Temple at the foot of the hills is a public temple and a pilgrim centre. The hills are called Alagar Hills on account of the fact that it is situate adjacent to Alagar Temple in the plains. They are situate about 20 km north of Madurai City. The hills are the northern boundary for Madurai City and its suburbs. Alagar Temple at the foot of the hills is a public temple and a pilgrim centre. The hills are called Alagar Hills on account of the fact that it is situate adjacent to Alagar Temple in the plains. The shrines mentioned in the plaint as existing in the hills do exist, but they do not belong to the plaintiff temple. They are independent shrines. The inams alleged to have been granted to the priests are not within the limits of Alagar Hills and these grants were given to them for services rendered. The names given to the rivers as Silambaru and Nupuragangai are of recent origin. Poets and Scholars have given interpretations regarding the origin of Silambaru, but they cannot be accepted on their face value. The Public Works Department is looking after the maintenance of the irrigation tanks where the river empties itself. The water is used by the general public. It is therefore not correct to say that the river Silambaru is considered to be the sacred river of the plaintiff temple and venerated by the worshippers from time immemorial. Equally the river flowing on the northern slopes called Peria Aruvi and the other rivers mentioned in the plaint do not belong to the plaintiff temple. Due to various geological formation and presence of vegetation, natural streams flow from the hills. Nature does not belong to any individual and is vested with the Government. It is not correct to say that the schedule mentioned properties were in exclusive possession and enjoyment of the Temple as its property. The plaintiff temple is not within the hills and on the contrary away from the hills. The properties set out in the plaint were never owned by the Temple and they do not form part of the Temple. The springs which come naturally are being utilised by the public after obtaining permission from the Forest Department. For cattle to graze, necessary grazing permission is issued by the Forest Department, the Temple authorities sold away the cattle donated by the devotees in auction held every Wednesday. There is no cattle grazing inside the reserve forest. Grazing illegally in the forest does not mean the rearing of cattle in the forest by the plaintiff. For cattle to graze, necessary grazing permission is issued by the Forest Department, the Temple authorities sold away the cattle donated by the devotees in auction held every Wednesday. There is no cattle grazing inside the reserve forest. Grazing illegally in the forest does not mean the rearing of cattle in the forest by the plaintiff. The allegations regarding treatment and recognition of the schedule mentioned hills as belonging to the Temple by kingdoms and successive Governments are false. Leasing out honey, tree cutting and the timber set up in the plaint is false. 4.2: The East India Company with their policy adopted throughout India avoided offending the religious feelings of the Hindus and they did not prevent anybody from constructing temples and managing by themselves. On the establishment of British Government in India, they appointed temple committees. They did not interfere with the religious affairs of anybody, the Temple committee was appointed only for the management of the Temples. They never had any superintendence and control over the suit hills. It is not correct to say that the income and expenditure relating to Alagar Hills were entered in the accounts of the Government to the credit of the Temple accounts. But the grazing and other leases, revenue and expenditure are under the control of Forest Department in the Alagar Hills Reserve Forest. The income mentioned is only from the Temple and not from the forest area. The allegation that from the perusal of the accounts of the Government in the Taluk Office, Melur, it could be seen that Alagar Hills were administered and managed as the plaintiffs property is false. Equally false is the allegation that in the list of properties the schedule property was shown as the property of the Temple. The plaintiff has no title to the suit property and occasional user and expenses incurred for such occasional use even if true cannot confer any title on the plaintiff in respect of the suit property. The very fact that in the first settlement Paimash Nos. 791 to 818 were shown as hills shows that those Paimash Nos. were never enjoyed by the plaintiff temple. The fact that in the subsequent survey it was included in Paimash No. 758 and the plaintiff temple not having objected to the classification is estopped from claiming title to the suit property. 791 to 818 were shown as hills shows that those Paimash Nos. were never enjoyed by the plaintiff temple. The fact that in the subsequent survey it was included in Paimash No. 758 and the plaintiff temple not having objected to the classification is estopped from claiming title to the suit property. The hills were not handed over to the Temple after the passing of Act 29 of 1863 as they did not belong to the Temple. The entire hills belong only to the Government as also the Nadu Hills and Chembuki Hill adjacent to Alagar Hills. All the three hills have been classified as reserve forests. The entire range of hills vest with the Forest Department as per Governments Notification No. 187 dated 11.10.1883. The Notification has been made in accordance with the rules and regulations. Since it was a forest at the disposal of the Government, it was so declared. The suit property was never in the occupation of any one, much less the plaintiff temple. It is false to say that the Government was exercising right of possession and control as Trustee or Manager of the plaintiff temple as per the provisions of Regulation VII of 1887. The Government is the owner of the property and has been asserting its right over the same. The Notification issued under the Forest Act has become final and conclusive. The road leading to the holy bath is maintained by the Highways and Rural Works. For grazing, permission was issued to the Temple by the Forest Department. Sale of tamarind minor forest produce and leases have been conducted every year in the hills by the Forest Department. The Government has also sanctioned the post of Forester, Forest Guards for protection and maintenance. The entire suit property is in the actual possession and enjoyment of the second defendant-Department. The plaintiff has no independent right over the suit property. The plaintiff has been using the property and conducting festival only after obtaining necessary permission from the second defendant. The plaintiff never disputed the title and always submitted to the authority of the 2nd defendant. Hence the plaintiff is estopped from disputing the title of the defendants. As per G.O.Ms. No. 764 F & F Department dated 3.7.1984 forming a mini Zoo at Alagar Hills has been sanctioned by the Government. Accordingly, a mini zoo has been formed. The plaintiff never disputed the title and always submitted to the authority of the 2nd defendant. Hence the plaintiff is estopped from disputing the title of the defendants. As per G.O.Ms. No. 764 F & F Department dated 3.7.1984 forming a mini Zoo at Alagar Hills has been sanctioned by the Government. Accordingly, a mini zoo has been formed. There is no proposal to dig a well and the proposal has been abandoned. The suit for mere recovery of possession without declaration of title, when the title of the plaintiff has been denied, is not maintainable. The suit notice is defective. The suit has not been properly valued. The suit is barred by limitation. Section 10 of the Limitation Act does not apply. There is no cause of action for the suit. The suit is liable to be dismissed. 5. On the above pleadings the trial Court framed the following issues:— 1. Whether the suit property was in the possession and management of the first defendant on behalf of the plaintiff till the coming into force of Act 20 of 1863? 2. Whether the order bearing No. 187 dated 11.10.1883 issued by the first defendant is illegal and invalid? 3. Whether the Government Order dated 11.10.1883 changes the ownership of the property? 4. Whether Section 10 of the Limitation Act is not applicable to the present suit? 5. Whether the suit is barred by limitation? 6. Whether the first defendant is liable to hand over possession of the suit property to the plaintiff temple? 7. To what reliefs are the parties entitled? 6. On the side of the plaintiff Exhibits A1 to A45 were marked and one Ramasubramanian, Junior Assistant in the suit temple was examined as P.W. 1. On their side, the defendants marked Exhibits B1 to B9 and examined one Subramanian working as Forest Officer as D.W 1. 7. On the oral and the documentary evidence the learned Subordinate Judge held as follows:— 7.1 The plaintiff temple has not produced any document to show that the schedule hills belonged to it. It has also not been shown whether there was any assignment, gift or endowment in respect of the hills in favour of the Temple. It is also not pleaded that the Temple acquired right by adverse possession. It has also not been shown whether there was any assignment, gift or endowment in respect of the hills in favour of the Temple. It is also not pleaded that the Temple acquired right by adverse possession. Even if any such contention had been raised, it would not avail the Temple, the Temple cannot also ask for relief on the basis of possession as it does not have possession. It cannot also be accepted that the suit temple is situated in a portion of the schedule hills and therefore, the schedule hills should be deemed to belong to plaintiff temple. There are several other temples in the schedule hills and there is no material produced to show that they are connected with the suit temple. Merely because there is a single Executive Officer to all the Temples, it cannot mean that the other temples are the sub temples of the plaintiff temple. Permission granted for carrying on puja will not clothe the Temple with any right in the schedule hills. Exs. A25 to A41 will show that even for leasing out for collection of honey and other products and for grazing cattle in the suit hills, plaintiff had obtained permission from the Government. From a scrutiny of documents, it is seen that the Tahsilar had given certain guidelines to be observed by the plaintiff temple. Only on the basis of the said guidelines the plaintiff temple had been enjoying certain rights. If really the suit hills belonged to the plaintiff temple, no such permission would have been necessary. P.W. 1 has also in his evidence accepted this position. If some licence powers are given, it will not show absolute rights. From the documents produced on the side of the defendants and the evidence of D.W. 1, it is seen that steps were being taken even from 1881 to declare the suit hills as reserved forest, that the details relating to this are set out in page 17 of Ex. From the documents produced on the side of the defendants and the evidence of D.W. 1, it is seen that steps were being taken even from 1881 to declare the suit hills as reserved forest, that the details relating to this are set out in page 17 of Ex. B1, that prior to that, there were settlement proceedings from which it could be seen that the suit temple had rights of passage till the Theertha Mandapam and also to cut across from Theertha Mandapam to the top slope and from there to Peria Aruvi and Pattam Village hill and also permission subject to conditions for going to the small temple, that all these things would be evident from pages 25 and 31 of Ex. B.1 which bad itself been issued on the basis of the enquiry made by the Committee appointed by the Revenue Department in 1881. The plaintiff has not disputed the enquiry and the report by the Committee constituted. It is not the case of the plaintiff temple that it was not given sufficient opportunity to participate in the enquiry or that the enquiry itself was illegal. To put it short, the plaintiff temple had not challenged the enquiry relating to Ex. B. 1, at any time. It is also not raised in the present proceedings that the said enquiry will not bind the su it temple. There can be little hesitation in concluding that the enquiry relating to Ex. B.1 and the consequent order based on the enquiry is legally valid and binding on the plaintiff temple. The following particulars found in Ex. B.1 would also make the position relating to ownership of the schedule hills clear:— Ex. B1, page 2 paragraph 8 serial number 21 runs as follows:— “ALAGHARMALAL, area 20.37 Square miles, all Government property, hill tracts, reservation important for climatic reasons, as well as fuel demand for the future. “The Alagarmali (area 20-37 square miles) is in the Melur and Madura Taluks. Madura Town only about 10 miles distant from its southern extremity, which has naturally long since been denuded for the firewood supply of that place. The supply is now chiefly drawn from the north westernly slopes (where there are two jungle conservency reserves which we propose to include in the reservation now proposed), Temulimalai and the Katchakutty jungles on the southern slopes of the Sirumalais. The supply is now chiefly drawn from the north westernly slopes (where there are two jungle conservency reserves which we propose to include in the reservation now proposed), Temulimalai and the Katchakutty jungles on the southern slopes of the Sirumalais. Adequate administrative arrangements should, of course, be made by the Forest Department to prevent any abrupt curtailment of the firewood supply of Madura Town”. Page 18- “The records show that as regards these reserves, the Forest Committee have carefully inquired into, settled and recorded the several rights and claims respecting each of them; and that the result of their inquiry, as embodied in their report, may be taken as a final settlement of all the various rights involved. As there is no necessity for any further investigation respecting these reserves, the Government may removed to declare them outright as reserved forests under Section 25”. Thus it would be clear that the suit hills belong to the Government and pursuant to Government order, they have been notified as Reserve Forest and the plaintiff temple cannot claim any right contrary to Ex. B.1. 7.2: Again as per the provisions of Section 25 of the Act, the publication effected in 1881, was on the basis of the enquiry by the Committee constituted for the purpose that it had reached finality and the plaintiff temple had no right whatsoever to question the same; there was no need to send any notice under Section 6 that only if the rights had not been decided, there was need to send notice under Section 6 that any person who felt affected by the notification could object to the same within a stated time and the plaintiff temple had not raised any objection at any time, that only a right of passage had been given to the plaintiff temple that such a right is not derived to the plaintiff temple, nor have the defendants acted contrary to the terms of such right in favour of the Temple. 7.3: The evidence on the side of the plaintiff temple is wholly inadequate to prove the right claimed by it. The evidence of P.W. 1 clearly shows that he had little or no knowledge about the suit hills and does not support the plaintiffs case. 7.3: The evidence on the side of the plaintiff temple is wholly inadequate to prove the right claimed by it. The evidence of P.W. 1 clearly shows that he had little or no knowledge about the suit hills and does not support the plaintiffs case. Thus it has not been established that till the passing of Act 20 of 1863, suit hills had been in the management and possession on behalf of the Temple. Order 187 dated 11.101.1883 is legally valid and it has not changed the ownership of the suit hills. 7.4: When once it is found that the suit hills belong to the Government and that the defendants are not in possession as trustees, that the rights claimed by the plaintiff temple had been continuously objected to by the defendants, the plaintiff cannot invoke the provisions of Section 10 of the Limitation Act. 8. By judgment and decree dated 14.3.1988 the trial court dismissed the suit. 9. Aggrieved, the present appeal has been filed by the plaintiff temple. 10. The other suit O.S. 178/82 filed by three Jeers of Sri Vaishnava Siddhanta and three Vaishnavite devotees of Sri Azhagar Koil against the Collector of Madurai and six others is for a declaration that the entire alleged forest area in the Azhagarmalai or Azhagar Hills called Thirumal Irum Solai in Madurai District, Melur Taluk Azhagar Hills in Alagapuri Village-near Kidaripatti, now in the possession of the Government belonged to Sri Kallalagar Deity called Sundarajasamy or Sundara Babu or Paramasami in Alagar Koil, Melur Taluk, Madurai District and for consequential possession of the said Forest area inclusive of the 3 acres of lands on the said Hills ordered to be assigned to the Executive Officer of Sri Ami Mighu Murugan Temple under the administration of the Hindu Religious and Charitable Endowments Department. 10.1: The plaint details about the antiquity of the Temple and the hills, how Vrishabadri Mahatmiyam handed down by ancient Rishis and prayer songs of Vaishnavite Saints and Alvars and Andal and Silappadikaram conclusively established that Silambaru is nothing but Nupura Ganga flowing from the splashed water of the anklet of Lord Narayanan and how the entire Hills are described as belonging to Lord Vishnu in the two forms of Paramasamy and Sundaraja or Kallalagar. The plaint further gives in detail, what according to the plaintiffs is the historical background as narrated in the booklet Tirumal Irum Solaimalai Sthalapuranam, and how the East India Company took over the management of the Temple till it was handed over to the Temple Committee appointed by the British Government in due course and how the Government stopped with collection of assessment of the land and never interfered with the possession and administration of the Temples endowments including in the case of Alagar Temple of Alagar Hills. The plaint finds fault with the Temple Committee formed under Act XX of 1863, for betraying the rights of the Lord and of the worshippers by submitting to the authority or fiat of the Government, either in ignorance of the rights of the Temple or actuated out of fear, which further resulted in the Government claiming the forest areas as its own. The plaint further states that a plot was conceived to establish the Hill as one of the Houses of Lord Subramanya and a proposal was submitted to put up a Murugan idol at the Mantapam known as Sambalaputhur Mantapam or Solaimalai Mantapam, that some Vaishnavite worshippers filed O.S. No. 219/1960 before the District Munsif Court, Madurai Town to thwart the attempt of some individuals to instal Sri Subramanyasami at what was and is called Theertha Thotti where Lord Kallalagar is taken during the Tamil month of Arpisi to celebrate the Theerthavari Utsavam; though the learned District Munsif held that the suit mantapam belonged to Kallalagar Devasthanam dismissed the suit holding that the suit was barred under Section 108 of Act 22 of 1959 and therefore, the Civil Court had no jurisdiction to entertain the suit. The appeal in A.S. 281/1961 was dismissed only on the ground that the Civil Court had no jurisdiction. The appeal in A.S. 281/1961 was dismissed only on the ground that the Civil Court had no jurisdiction. The Second Appeal therefrom in S.A. No. 839/1962 ended in a compromise as follows:— (i) declaring the suit Mantapam to be the property of Lord Sri Kallalagar Decvasthanam; (ii) directing the 3rd defendant to surrender possession of the Mantapam suit shrine to the first defendant Executive Officer and the succeeding trustees who assume charge, (iii) that the Mantapam of suit shrine will be treated by the trustees as a distinct different and separate endowment or institution though under the management of the trustees of Lord Sri Kallalagar Devasthanam and that; (iv) There will be no further construction outside or over the suit Mantapam or introduction of new idols in the inside or over of surrounding the Mantapam; (v) there shall be no procession of any idol or vel from the new shrine beyond north Gate of Alagar temple. (vi) that it will not prevent the trustees at any time to arrange for the idol of Kallalagar being taken along the Sambalaputhur Mantapam route to Noopuraganga, if they think and if circumstances permit; (vii) that all the boards or signs posters bearing “PAZHAMUDIR SOLAI” be removed throughout; (viii) that the Devasthanam trustees will arrange for poojas under the Saiva Agama under their control.” The plaint then refers to the following observations made by the learned Judge in the Second Appeal:— “even so Alagar Hills are extensive enough to enable defendants 3 and 4 and persons with similar convictions to put up a temple at a site of their choice by getting an assignment of it from the Government or purchasing a piece of property and putting a temple” and avers that the observations are based on a wrong notion that the Government is the owner of the Hills and that these observations have been taken advantage of and on an application alleged to have been made by the Executive Officer of Lord Murugan Koil Alagarmalai and after consulting the Commissioner, H.R. & C.E. Department, Madras and the Chief Conservator of Forests, 3 acres in Alagar Hills preserved as Alagarmalai ‘Reserve Forest’ were assigned to and placed at the disposal of the Executive Officer of Arulmighu Subramanyasamy Temple, Alagarmalai. It is further stated in the plaint that the Commissioner, H.R. & C.E, Madras, his subordinates, the Executive Officer. Sri Kalyanasundareswarar Temple. It is further stated in the plaint that the Commissioner, H.R. & C.E, Madras, his subordinates, the Executive Officer. Sri Kalyanasundareswarar Temple. Avaniapuram, the Chief Conservator of Fore sts of the Madras Government and the Government have been encouraging this infraction of the rights of the Vishnu Temple in Alagar Koil to whom the entire Hills belong, the Temple Committee of Alagar Koil according to the plaint had been inactive on account of ignorance of the rights of the Temple to the Hills and the plaintiffs worshippers can therefore take action. It is also learnt that, in the eighteen eighties, when the Government parted with possession to the Forest Department, the statutory rules framed under the Forest Act and provisions of the Forest Act were not complied with, followed or observed; whatever was purported to have been done would not bind the deity or the worshippers. It is stated further in the plaint that: The Board of Trustees was appointed by the Commissioner, H.R. & C.E. Department, who in his turn was subordinate to the Government and under its disciplinary control had to abide by the policy decisions of the Government which was against the interest of the Temple; it would not have been possible to revolt against the classification of the portion of the Hill as Forest Area; in any event there was no acquiescence on the part of any of them; the compromise entered into in S.A. No. 839/1962 was against the interest of the Temple and the worshippers; the provisions under the Code of Civil Procedure for service on the General Public were not followed; there was no proper publication; the Commissioner, H.R. & C.E failed in his duty and ought hot to have accorded permission for compromise detrimental to the interest of the Temple and the worshippers; even otherwise the earlier suit did not relate to the entire Hills; the Government was not a party; the deity was not properly represented; in such circumstances the present suit has been filed for the reliefs already set out. 10.2: Defendants 1, 4 and 8 filed independent written statements while defendants 6 and 7 filed a joint written statement and an additional written statement. Defendants 2 and 3 adopted the written statement of the first defendant. 10.2: Defendants 1, 4 and 8 filed independent written statements while defendants 6 and 7 filed a joint written statement and an additional written statement. Defendants 2 and 3 adopted the written statement of the first defendant. 10.3: The first defendant, Collector contended inter alia as follows:— 10.3.1: The history or legends set out in the plaint do not confer any title or any right over the Hills. The Committee appointed by the Government did not betray the interest of either the Temple or the worshippers. The Committee managed the affairs of the Temple only as the Hills did not belong to the Temple. 10.3.2: The entire Alagar Hills and the adjacent Nadu Hill and Chembuli Hill, all three belong to the Government and have been classified as Reserve Forests and excluded from settlement. As per the notification bearing No. 187 dated 11.10.1883, the entire range of Hills vested with the Forest Department and is under the control and Management of the Forest Department the second defendant in the suit. The claim in the plaint that the Hills belong to the Temple is untenable. 10.3.3: In view of the observations made in the Second Appeal, the Government has got every right to deal with the property (Alagar Hills) in the interest of the public or in its own interest. 10.3.4: The assignment of 3 acres of land just above the existing Solai Murugan Temple which is ‘Forest Land’ had been granted for adequate consideration and possession also taken in 1974. The Government ratified the assignment in G.O. No. 657 Ms. Forest and Fisheries Department dated 9.7.1975. The authorities concerned have discharged their duties lawfully. There has not been any infringement of the rights of the Vishnu Temple. 10.3.5: The Government or the Forest Department is not holding the property as trustee for the benefit of Alagar Temple as falsely alleged. The Forest Department is in possession and enjoyment of the entire hills except the assigned portion. The river Nupura Gangai is also under the control of the Forest Department, the Temple is paying fees to the Forest Department for using the water from the river through pipes for deity, and also for using a portion of the land in the Alagar Hills as Nandavanam. 10.3.6: There is no cause of action for the suit. The suit notice is not valid and proper. The property description is not correct. 10.3.6: There is no cause of action for the suit. The suit notice is not valid and proper. The property description is not correct. The suit has not been properly valued. Proper court fee has not been paid. 10.4: The fourth defendant Commissioner, H.R. & C.E. Department filed a written statement to the following effect:— 10.4.1: It can be easily asserted that the Temple was built and the idol consecrated some centuries before the reign of Tirumalai Naicker from 1627 to 1659 and that the origin is therefore lost in antiquity. 10.4.2: At a distance of a mile and a half up the hill there was a dilapidated mantapam considered to be the ruins of a former Murugan Koil, and one of the Arupadai Veedus. Improvements were effected and the Temple became popular and came to be known as Arulmighu Solai Malai Murugan Temple. 10.4.3: This provoked some interested Vaishnavites including the first plaintiff to file the earlier suit which ended in a compromise in the High Court. The first plaintiff having been a party to the proceedings is estopped from questioning the compromise decree. 10.4.4: Assignment was sought for, granted by the Chief Conservator of Forests, ratified by the Government and His Holiness Sri Sankaracharya Swamigal came and performed the ceremony to construct a new temple. 10.4.5: The Commissioner, H.R. & C.E. Department and his subordinates are discharging their duties lawfully. There is no question of their infringing the rights of Vishnu Temple. 10.4.6: In the earlier proceedings, the entire hill was not the subject matter; only a particular mantapam and its appurtenances were the subject matter; the judgment in the Second Appeal will operate as res judicata. 10.4.7: The plaintiffs claim is speculative. There is no cause of action. 10.5: Defendants 6 and 7 filed a joint written statement and an additional written statement and their contents are as follows:— The pasurams of Andal and the Sanskrit work Rishbagiri Mahatmiyam have only literary excellence and cannot be the basis for claiming title to the suit hills. Stalapuranam does not contain true facts. What the East India Company did or did not do is immaterial for the purpose on hand. From time immemorial Muruga worship in Alagar Malai had been there. Because some Vaishnavites raised dispute, for having a peaceful solution, compromise was effected. The plaintiffs are suppressing the judgment of the High Court in the earlier proceedings. What the East India Company did or did not do is immaterial for the purpose on hand. From time immemorial Muruga worship in Alagar Malai had been there. Because some Vaishnavites raised dispute, for having a peaceful solution, compromise was effected. The plaintiffs are suppressing the judgment of the High Court in the earlier proceedings. The Vaishnavites are bound by the earlier decisions. Even conceding without admitting that Alagar temple had any right in the suit property, the same had been lost. After a number of invasions, change of rulers, Alagar Hills are now with the Government. The claim is barred by limitation. The earlier request by the Vaishnavites under Act 11/27 for the Hills was rejected by the Government. The rejection was not challenged. After such a long time, it cannot be challenged now. The construction in the assigned land were completed as per Sastras. One T. Srinivasaraghavan, Advocate, who claimed to be the President of United Vaishnava Sabha filed a Writ Petition in the High Court without mentioning about the present proceedings. Some of the plaintiffs are important members of that Sabha. The suit is barred by the provisions of Section 108 of the H.R. & C.E. Act. There is no cause of action for the suit. 11. The eighth defendant/Executive Officer, Kallalagar Devasthanam filed a written statement contending that the question of title may be decided by the Court. 12. The learned Subordinate Judge framed the following issues for trial:— 1. Whether the suit property belongs to Arulmighu Kallalagar @ Sundarajaswami @ Sundarababhu @ Paramasami and whether it is right to seek declaration on that basis? 2. Whether the plaintiffs can maintain the suit? 3. Whether the suit is barred by the principles of res judicata and estoppel? 4. Whether the Government of Tamil Nadu has acquired title to the suit property by adverse possession? 5. Whether the suit has not been properly valued and whether proper court fee has not been paid? 6. Whether proper notice has not been issued under Section 80 of the Code of Civil Procedure 4? 7. Whether the plaintiffs are entitled to reliefs? 8. If so, what are the reliefs? 13. On the side of the plaintiffs, Exhibits A1 to A18 were marked. The fourth plaintiff was examined as P.W. 1 and one Rama Ramanujam as P.W. 2. Whether proper notice has not been issued under Section 80 of the Code of Civil Procedure 4? 7. Whether the plaintiffs are entitled to reliefs? 8. If so, what are the reliefs? 13. On the side of the plaintiffs, Exhibits A1 to A18 were marked. The fourth plaintiff was examined as P.W. 1 and one Rama Ramanujam as P.W. 2. On the side of defendants, Exhibits B1 to B17 were marked and one Vajravel was examined as D.W. 1. The order in W.P. No. 2090/1982 was marked as Ex. C1. One of the documents filed on the side of the defendants was the judgment in the other suit viz., O.S. No. 171/1987, as Ex. B. 13. 13.1: On the materials placed the learned Subordinate Judge held as follows:— 13.1.1: The suit by the plaintiffs is maintainable. Section 80 C.P.C notice has been validly issued. From the various Exhibits filed and oral evidence let in, it has to be found that the suit property belonged to the Government and had been properly declared to be Reserve Forest. Further, apart from the payment of salary to Watchers, there is no other material supporting the case of the plaintiffs and that certain permissive rights have been given to the Temple and nothing more, that the Government is not administering the Hills as trustee and that the plaintiffs are not entitled to the declaration prayed for. The decision in O.S. 171/1987 will not operate as res judicata, as the present plaintiffs were not parties in that suit. No arguments were advanced on adverse possession, and suit valuation. 13.1.2: So holding by judgment and decree dated 28.9.1995 the learned Subordinate Judge dismissed the suit. 14. Aggrieved plaintiffs 3 to 5 filed appeal before the District Court. The appeal has been transferred to this Court to be heard along with A.S. No. 563/1989. 15. Mr. S. Desikan, the learned Senior Counsel took us through the pleadings, the oral and the documentary evidence, Silappadikaram and the Pasuramas of the various Aazhvaars, who had sung in praise of the Lord of Azhagar Hills where there is reference to the Azhagar Hills being owned by Lord Azhagar. The learned Senior Counsel submitted that since no grant is produced, lost grant should be presumed. The learned Senior Counsel submitted that since no grant is produced, lost grant should be presumed. In this connection counsel relied on the judgment in “ Nagarentha Mudaliar v. Sami Pillai ” (A.I.R. 1936 Madras 682=44 L.W. 139 = ILR 59 Madras 979). Counsel also submitted that inscriptions are referred to in the Sthalapurana. In the further submission of the learned Senior Counsel, the lower Court failed to note that the entire Azhagar Hill known as Azhagar Malai is referred to in the Temple documents and in some of the early Government records that such acts of ownership as are capable of being exercised in the case of a Hill of this character have been consistently enjoyed by the Temple authorities for the greater part of a century; that the Temple had been enjoying the forest produce from the Hills by leasing out honey, tree barks cutting and in other ways and also using firewood from the forest in the Temple kitchens. Counsel drew our attention to Tamil Nadu Regulation VII of 1817 pursuant to which the Board of Revenue took over the management of the Temple and Religious Endowments Act (Act XX of 1863) when the management reverted to temple Committee and Nelsons Manual on the Madura Country giving copious details about how the Temple properties were being managed over the centuries. Counsel submitted that the notification issued under the Forest Act 1882 was illegal and wholly void, the procedure thereunder not having been followed, that the Forest Department had no control or possession prior to notification dated 6.7.1883, that the defendants had kept back vital documents, that adverse inference should be drawn against them in the light of the decisions of the Privy Council and the Supreme Court, that the Government being a trustee, in view of Section 10 of the Limitation Act, there was no bar of limitation. 16. Ms. Selvi George appearing for Special Government Pleader representing respondents 1 and 2 submitted as follows:— In para 27 of the plaint there is an admission that the G.O declaring the Hills as Reserve Forest, is illegal and without seeking a declaration that the G.O is illegal, the plaint is defective. There is no pleading that the Government did not hand over the forest nor is there reference to any eviction by the Government. Mere songs in praise of the Lord cannot give title to the Lord. There is no pleading that the Government did not hand over the forest nor is there reference to any eviction by the Government. Mere songs in praise of the Lord cannot give title to the Lord. The appellants who did not raise any objection regarding Section 25 of the Tamil Nadu Forest Act before the lower Court ca nnot therefore, be allowed to raise before this Court. Again from the reading of the plaint, and cross-examination of P.W. 1, Section 25 objection cannot be raised. No new case can be put forward in the absence of pleading. The trial court has considered all the points and found that the suit is not maintainable. Today it is a forest. It has been so for over 100 years. Plaintiff cannot have any relief. Counsel relied on the following judgments in support of her submissions. “ Siddik Mohomed Shah v. Mt. Saran & Others ” (A.I.R. 1930 Privy Council 57), Kalyanpur Lime Works Ltd. v. State of Bihar and another ” (A.I.R. 1954 Supreme Court 165), “ S.S. Velemeli v. Chanabasappa Basappa Warad ” (A.I.R. 1979 Karnataka 52), “ T.N. Godavarman Thirumulkpad v. Union of India and others ” (1997 2 S.C.C. 267) and the interim orders passed by the Supreme Court in W.P. (Civil) No. 202/1995 dated 7.5.1999. 17. In reply, Mr. Desikan submitted that the Government was not satisfied with Section 25 notification and therefore, the other notification was issued to proceed under Section 4 as would be evident from the documents filed in the other suit. The Government has not followed the procedure contemplated under the Forest Act. The illegality goes to the root of the matter and it is totally unnecessary to seek a declaration. Counsel also submitted that the suit is not barred in view of Section 10 of the Limitation Act. He also cited some further decisions. 18. The common points for determination in the appeals are:— 1. Whether Azhagar Hills belong to Azhagar Temple? 2. Whether they were in the possession and management of the first defendant Government in their capacity as trustee and therefore, Section 10 of the Limitation Act would apply? 3. Whether the Government Order dated 11.10.1883 had been properly issued or is illegal and invalid for non observance of the provisions of the Tamil Nadu Forest Act 1882? 19. 2. Whether they were in the possession and management of the first defendant Government in their capacity as trustee and therefore, Section 10 of the Limitation Act would apply? 3. Whether the Government Order dated 11.10.1883 had been properly issued or is illegal and invalid for non observance of the provisions of the Tamil Nadu Forest Act 1882? 19. POINTS:— The term ‘temple’ means a place, by whatsoever designation known, used as a place of public religious worship and dedicated to or for the benefit of or used as of right by a community or any section thereof as a place of public religious worship ( Jagannath v. Satva Narain , AIR 1973 Raj. 13 ). 20. The origin of the Temples in the form of structure is shrouded in mystery, Gautamas Dharma Sutra, fixed roughly about 500 years before Christ, refers to a temple of God in several places. We do not know the images worshipped in that temple. 21. But then we need images, as plausibly reasoned by Dr. Radhakrishnan and which is referred to in In re Temples in the erstwhile Malabar area O.P. No. 214/1992 - A.I.R. 1995 Kerala 172- “Man is anthropomorphic and is inclined to conceive God in vivid and pictorial form. He cannot express his mental attitude except through symbolism and art. However inadequate the symbols may be as expressions of the real, they are tolerated so long as it suggests the right stand point. Realising as it does the force of the lower forms of worship, Hinduism has developed a religious atmosphere permeated by the highest philosophic wisdom as well as symbolic worship round which much glorious art has gathered. It has room for all men of all grades of cultural equipment and religious instinct. It is idle to stifle the impulses of the child by breaking its playthings, simply because we are grown up and do not find any need for them”. 22. Distinct forms have been ascribed to the Gods. Answering the question as to why Hindus worship many Gods, Dr. David Frawley said, “Human beings through history have formulated many different names and forms for the Divine or Eternal. 22. Distinct forms have been ascribed to the Gods. Answering the question as to why Hindus worship many Gods, Dr. David Frawley said, “Human beings through history have formulated many different names and forms for the Divine or Eternal. Just as we have many names and forms for other things, whether it is foods, or types of art, so too, in religion a similar great diversity has been created.” “Having many names for something is not necessarily a sign of ignorance of its real nature. On the contrary, it may indicate an intimate knowledge of it. For example, Eskimos have forty eight names for snow in their language because they know snow intimately in its different variations, not because they are ignorant of the fact that all snow is only one. The many different deities of Hinduism reflect such an intimate realization of the Divine on various levels.” 23. Hindus have the Triad - Brahma the Creator Vishnu - the Preserver and Siva - the Destroyer. Temples for Brahma have been few and far between. His concert Saraswati Goddess of Learning has perhaps more worshippers than He has Vishnu has His devotees who are called Vaishnavites. Saivites worship Siva. It was Avvaiyar who said Tirumalukku Adimai Sey. Serve Vishnu) and Aranai Maravel Do not forget Siva). Nayanmars sang Sivas glory and their out-pourings speak volumes about our rich cultural heritage, while Aazhvaars, meaning those who are ‘immersed’ in the worship of God, composed ‘Nalayira Divya Prabandham’ on Vishnu. The Aazhvaars were twelve in number. Their divine verses would have been lost to us but for the Herculean efforts taken by that philosopher saint Nathamuni of Kattumannarkoil, Legend has it that he had a vision of Nammalvar who had contributed the maximum number of ‘pasurams’ (verses), and got the ‘pasurams’ direct from him. 24. We are told that there is more devotional literature in Tamil than in any other regional language for which the credit goes to Aazhvaars and Nayanmars. They went from temple to temple in their devotional ecstasy and sang about God, as the belief goes, He manifested Himself in each temple. 25. Dravida Desa contains more temples than the rest of India put together. Similarly, in respect of devotional, philosophic, ethical and religious works, India has produced more works than the total output of such works in the rest of the world. 25. Dravida Desa contains more temples than the rest of India put together. Similarly, in respect of devotional, philosophic, ethical and religious works, India has produced more works than the total output of such works in the rest of the world. In this respect too, Dravida country leads the rest of India and the tradition has it that Vedic religion, philosophy and dharma and bhakti are preserved much more on the banks of Kaveri and Tambraparni than anywhere else in India. Greatmen, in the abundance of their devotion built temples and also endowed them with considerable properties. 26. The Vishnu Kshetras or Divya Desams are stated to be 108 in number out of which 106 are found on this earth. A majority of them is in South India. More than ninety are in Tamil Nadu, the Temples dedicated to Siva are innumerable. 27. One of the 108 Divya Desams of Vaishnavites is Tirumalyirum Solai, better known these days as Azhagar Koil. The origin of the Temple is not very clear but the ‘sthalapuranam’ mentions a few legends associated with this temple. Yama, the deity who presides over death once visited this place and enchanted by its beauty stayed here for meditation. Lord Vishnu appeared before him in response to his meditation. He requested that the Lord remained in this place so that people could worship him. In granting h is wishes Vishnu stayed there with his two consorts, Sri Devi and Boo Devi. 28. There is also a legend associated with the river Silambar that runs on the western side of the Temple. A king by the name of Bali by his severe penance became very powerful and brought all the three worlds under his domain. The Devas who had thus lost all their possessions and exalted position approached Mahavishnu and requested that he should restore them to their rightful place. Mahavishnu then took the form of dwarf by the name of Vamanan and went to King Bali and sought three paces of land for hims elf. King Bali seeing this dwarf acceded to his request. Then Mahavishnu assumed a gigantic form (Brammanda soroopam). He measured the three worlds by two paces and asked King Bali where he could measure his third pace. King Bali, unable to find any other place, showed his head whereupon Mahavishnu put his foot on his head and pushed him into the netherworld. Then Mahavishnu assumed a gigantic form (Brammanda soroopam). He measured the three worlds by two paces and asked King Bali where he could measure his third pace. King Bali, unable to find any other place, showed his head whereupon Mahavishnu put his foot on his head and pushed him into the netherworld. Lord Brahma seeing this large foot washed it with water from his ‘Kamandalam’ (pot). The water that trickled from the Silambu (Anklet) worn by Mahavishnu formed into a river thus taking the name ‘Silambar’ (Silambu+Aaru). The sanctity of this place is further enhanced by the fact that all twelve Vaishnavite saints (Azhwars) had visited this temple and had sung in praise of the presiding deity. 29. The memorial Ex. A.24 submitted by Mr. K.N. Radhakrishnan the then trustee of the Temple in the late thirties to the then Revenu Minister of the Government of Madras makes very interesting reading. It traces the origin, the legendary as well as the modern history of the Temple and makes a fervent appeal to restore back Sri Azhagar Hills to Lord Sri Azhagar. The shrine at Azhagarmalai is one of the two where the Lord is worshipped in a golden image, the other one being at Trivandrum Sri Padmanabhaswami. The antiquity of the Temple is sought to be established by reference to Nalayira Divya Prabandham and Silappadikaram. Silappadikaram scripted by Elangovadigal belonged to the second century AD. In Madurai Kaandam Kaadukaan Kaadhai, the following stanza appears: Tamil Direction to reach Madurai is given. Tirumalirum Solai is given as a land mark. The hill is stated to belong to Tirumal. Most of the twelve Aazhvaars are stated to have sung in praise of the Lord in Tirumalirum Solai. The first Aazhvaars Poygai Aazhvaar born in a tank in Vehka near Kanchi, Butattaazhvar born in Mahabalipuram and Pey Aazhvar born in a well in Mylapore, are placed in the 5th and the 6th Centuries AD. Tirumazhisai Aazhvar born in Tirumazhisai near Chennai was a contemporary of the first three Aazhvars. All the four laid the foundation for Bhakti cult through poetry which later on took wings and developed into music, dance, drama and sculpture. Nathamuni had a great role to play in setting them to music and reciting them in temples. 30. Tirumazhisai Aazhvar born in Tirumazhisai near Chennai was a contemporary of the first three Aazhvars. All the four laid the foundation for Bhakti cult through poetry which later on took wings and developed into music, dance, drama and sculpture. Nathamuni had a great role to play in setting them to music and reciting them in temples. 30. Peyaazshvar in his Moonram Tiruvanthathi (stanza 2342) it is said sang on Azhagar- Tamil meaning that the young Lord, who has all along been residing in Paarkadal and in Tiruvenkatam giving them equal status has found a new home in kadigai surrounded by flower gardens with bees humming around. We have our own doubts whether kadigai referred to here is Tirumalyirunsolai or Sholingar. Butattaalwar in Irandam Tiruvanthathi. Tamil Nammaazhwar whose date is 300 years prior to Nathamuni has sung 46 songs in praise of Thirumaliyurum Solai. A sample is stanza 2886 Tamil It says that the mountain belongs to Lord Vishnu. Thirumangai Aazhwar sang 33 pasurams eulogising the Lord. A sample is stanza 1837 Tamil Periaazhwar lived during the reign of King Vallabha Devaraya of the Pandya Dynasty, who ruled from Madurai during the 8th Century A.D. His foster daughter was Aandal. Both Periaazhwar and Aandal have sung in praise of the Lord at Thirumalyirun Solai. Periaazhwar has called Him, the king of Solaimalai. He describes the ‘malai’ variously as, Tamil and addresses the Lord as Aandal has sung 11 songs. A sample is- Tamil The then Government of Madras in their order No. 2162 dated 9th September, 1865 directed James Henry Nelson Esquire of the Madras Civil Service to compile the Manual for the Madura District. Accordingly, he completed the compilation and had it printed and published in five parts in 1868 under the caption “The Madura Country”. Portions of the said Manual have been made available and relied on by the learned Senior Counsel for the appellants. From this Manual, it is seen that there was once a large city n ear the Azhagar mountain (Page 45), that Saint Ramanuja lived in the time of the son of Sundara Pandiya, in 1117 AD (Page 65). Ramanuja, it is Said lived for six scores of years. His period can be fixed in the 11th and 12th Centuries AD. Nathamuni was before Ramunaja. All the Aazhvaars were long prior to Nathamunis period. Ramanuja, it is Said lived for six scores of years. His period can be fixed in the 11th and 12th Centuries AD. Nathamuni was before Ramunaja. All the Aazhvaars were long prior to Nathamunis period. The Temple at Azhagar Malai has long been in existence, if not prior to Christ, atleast by the 2nd Century AD, the period during which Silappadigaram was written though Sri Vaishnavites claim that the Temple belongs to Thretha Yuga and the first Aazhwars lived in 5000 B.C. Whatever it may be, there can be least doubt about the antiquity of Azhagar Temple and Azhagar Hills. But that by itself cannot mean that the Hills belong to the Temple. It is the privilege of the poet or the devotee to exaggerate and say that everything belongs to the Lord. We cannot, therefore, on the above basis alone, conclude that Azhagar Hills belong to Lord Azhagar. We need something more than this. 31. A similar question regarding right to a Hill arose for decision by the Privy Council in Tirupparankundram etc., Madura Devasthanams v. Alikhan Sahib & Ors. (AIR 1931 PC 212=(1931) 34 L.W. 340). 32. In that case, the Temple represented by its Manager claimed a whole Hill viz., Tirupparankundram Hill with the exception of certain cultivated and assessed lands and the site of a Mosque, as temple property. The Mahommedan defendants asserted their ownership of the particular eminence upon which the Mosque stood and of a portion of the main hill known as the Nellitope. The Secretary of the State claimed to be the owner of all the unoccupied portions of the hill as Government poromboke or waste appertaining to the village of Tirupparankundram, admittedly Government property. 33. The trial Court decided against the Government claim and in favour of the Temple, except in respect of the Nellitope and the actual site of the Mosque with its flagstaff and flight of steps leading upto it, which it held to be the property of the Mahomedan defendants. The Mahomedans alone appealed. As their only grievance was against the Temple, they did not make the Secretary of State a party. At the instance of the High Court, the Secretary of State was made a party. He put in cross-objections contesting the decision of the trial Court upon every head of its judgment. The Mahomedans alone appealed. As their only grievance was against the Temple, they did not make the Secretary of State a party. At the instance of the High Court, the Secretary of State was made a party. He put in cross-objections contesting the decision of the trial Court upon every head of its judgment. The High Court dismissed the appeal by the Mahomedans, allowed the cross objections and dismissed the suit. The Privy Council referred to the antiquity of the Temple, how the inner shrine of the Temple is hewn out of the hill, and in it, the rock itself, is the image of the deity and how perambulation of the hill is an important religious rite. The Privy Council further referred to the existence of several smaller shrines of almost equal sanctity, a number of old established mandapams or rest houses, together with tanks and bathing places for the pilgrims and at least in one place a garden for the use of the Temple, how they are scattered over the lower slopes of the hill which contains various springs, the water of which is supposed to be of great religious efficacy. The Law Lords further noticed that in a report of the Director General of Archaeology in India which is embodied in an order of the Local Government that the whole rock is worshipped by the Hindu community and that the hill itself is frequently referred to in temple documents and also in some of the early Government records as the Swamimalai or Gods Hill. In the opinion of their Lordships, it was clear on the evidence that such acts of ownership as were capable of being exercised in the case of a hill of that character had been consistently so exercised by the Temple authorities for the greater part of a Century; the records dated back to 1835; there was no record found to suggest any limitation of the Temples proprietory rights over the unoccupied portions of the hill. The Privy Council then traced the fortunes of the Temple in the 17th and the 18th Centuries by relying principally on “Madura Gazetteer” and Nelsons “Manual of the Madura Country”, how the Nayakkan kings of Madura and in particular Tirumala Naicken endowed the seven temples known as the Hafta Devasthanams in the immediate neighbourhood of the capital with large revenues derived from a number of villages; how there is a confused record of internecine warfare in which the incursions of Mahomedan, Mysorean and Mahratta invaders played the largest part, and these were succeeded by the gradual, b ut by no means peaceful, penetration of the East India Company; how during these troublous times the Hafta Devasthanam lands seem to have disappeared piecemeal; how what remained of them when Chanda Sahib, nominally representing the Nawab of Arcot established himself in Madura in 1738, were then confiscated; how his dominion was interrupted by another invasion of the Mahrattas who probably restored a portion of the old endowments; how they again were ousted by the Nizam in 1744, and temples fared no better than before; how the intervention of East India Company then followed; how Madura was eventually subdued by their troops under Mohamed Yusuf Khan, who in due course established himself as Ruler; how he, who was apparently a Hindu by birth reestablished the endowment of the Temples by a money grant, possibly derived from the revenues of the confiscated villages but the villages themselves were not restored; how in 1763 he was beseiged in Madura by the Companys Army and how after a memorable defence, he was betrayed and executed; how thence forward Madura had come gradually under the Companys control and after the fall of Seringapatnam (Srirangapatnam) the civil and military administration of the District was formally made over, as part of the Carnatic, to the British under Lord Clives treaty with Azim-ul-Dowlab of 31st July, 1801 (Aitchisons Treaties Edn. 4, X.57); how Mr. 4, X.57); how Mr. Hurdis who became the first British Collector of Madura, carried out an elaborate survey and settlement of the country; how he was in considerable doubt as to the course that should be adopted with regard to the Hafta Devasthanams lands; and how the Board of Directors ordered their restoration to the Temples, but for some unexplained reason, this order was not carried out, a tasdik or annual allowance in money being paid in lieu thereof to each of the Temples. 34. The Privy Council then addressed itself to the question whether any presumption should be drawn from the confiscation of the endowed villages as to the proprietory rights in the waste land situate within the ‘ghiri veedhi’ and forming part of the ‘malai prakaram’, on the admitted position that the village of Tirupparankundram in which the Temple is situated, was part of this endowment. The Privy Council found that there was no trace in the historical work referred to, of any interference by the Mahomedan invaders with the sacred hill or the immediate surroundings of the Temple, though the revenue producing lands which formed the joint endowment of all the Temples including the cultivated and assessed lands within the ‘ghiri veedhi’ had been seized. It ultimately held that the appellant before it had shown that the unoccupied portion of the hill had been in the possession of the Temple from time immemorial and had been treated, by the Temple authorities as their property, reversed the decision of the High Court and restored that of the trial Court. 35. This decision of the Privy Council was relied on by the appellants before the trial Court in O.S. 178/82 but the lower court except for referring to it and recording the respective contentions did not express any view. Counsel for the appellants laid great stress on this ruling and submitted that the ratio will apply on all fours to the case on hand. We will now get back to our case. 36. It is not necessary to repeat the chain of events recorded by the Privy Council decision. Suffice it to say that it has equal relevance to the case on hand. We may also note that one of the seven (Hafta) Devasthanams to which lands were endowed was the suit temple. We will now get back to our case. 36. It is not necessary to repeat the chain of events recorded by the Privy Council decision. Suffice it to say that it has equal relevance to the case on hand. We may also note that one of the seven (Hafta) Devasthanams to which lands were endowed was the suit temple. We should also incidentally extract a passage from Nelsons Manual which has been commented upon by the Privy Council in the decision cited supra “as a compilation of great interest.” “On the 14th of April 1849 the Collector, Mr. Parker, proposed to the Board of Revenue to surrender to the Hafta Devasthana managers twenty of the villages which were styled Hafta Devasthana in the accounts and of lands situated in two other villages, and to incorporate the remaining Hafta Devasthana villages with the Government villages. He calculated that the amount of the revenues so surrendered would be a trifle in excess of the sum annually allowed for the paditaram expenses, and that those finally assumed would amount to over Rs. 31,000/- per annum. The landed endowments of the entire district were classified by Mr. Parker as follows“— “1st - Endowment of the Haftah Devasthanums of the Madura Division, No. of villages 58 “And an allowance of Rupees 169-12-8 “out of Rupees 343-10-2, the quit-rent of” the Mussulman Inam Village of “Annonjyoor.” “2nd:—Endowments of 14 sundry Devastanums of the Madura Division, 23 “An allowance of Rs. 636-5-10, from the revenue of the resumed Chuttrum village of Mullankenner.” “3rd:—Do. Of 11 Devastanums in Dindigul 16 “Lands in the village of Cumbuim classed as a separate village, 1 “4th:—The village of Pandagoody in “Maylore which once belonged to “Peramalay Devastanum, but has not “been enjoyed by it during the Companys Government, 1 Total 99.” As the Hafta Devastanum villages had been “Sequestrated some time before the British Rule,” and as the British had “found the Pagodas in the enjoyment of only one-half the amount of the tusdeek which, ever since, we have allowed them;” Mr. Parker was of opinion that the assumption of the lands in excess of what was sufficient to yield the customary allowance, was perfectly justifiable. The lands belonging to the other Devasthanas stood on a different footing. They too had been assumed by Mr. Parker was of opinion that the assumption of the lands in excess of what was sufficient to yield the customary allowance, was perfectly justifiable. The lands belonging to the other Devasthanas stood on a different footing. They too had been assumed by Mr. Hurdis: but the revenues which flowed from them were wholly devoted to the maintenance of the Devasthanas, and were in some instances inadequate to the charges incurred. Mr. Parker proposed to surrender the greater part of them to the institutions to which they had been severally granted. Nothing came of this proposal, and on the 12th of August 1859 Mr. Clarke, the Collector, submitted for the consideration of the Board another plan for the disposal of the Devasthana lands, in obedience to a requisition contained in the proceedings of the Board of Revenue, under date the 26th February, 1859, upon an order from Government which called for a report:— “I. — As to whether in cases in which the endowment and grant to “Pagodas and other religious establishments was originally in land, that “land cannot be granted in lieu of money payments now made.” “II — When the grant has always been in money, whether an “assignment of land cannot now be given in lieu.” After stating what Mr. Hurdis had done in the matter of the Hafta Devasthanas, and the proposals of Mr. Parker described above, Mr. Clarke observed with regard to the latter:— “but he appears to have “overlooked one very material point in the consideration of this subject: “viz, the order of Government to proclaim the restoration of these lands, “whereby it appears to me they gave up altogether any right which they “may have derived from the Mahomedan Government in these lands, and “constituted themselves simply the trustees of the endowments, on “behalf of the Pagodas. I, therefore, conceive that we are morally, as well “as in strict justice, bound to restore the whole of the villages with their “immense revenue of Rupees 78, 336-14-8 to the Pagodas.” The only question which in Mr. Clarkes opinion required careful consideration, was the disposal of the surplus funds which had accrued from the revenues of the Hafta Devasthanas during their management by the British. Clarkes opinion required careful consideration, was the disposal of the surplus funds which had accrued from the revenues of the Hafta Devasthanas during their management by the British. This surplus amounted, after deducting the amount of the annual allowance paid since 1802, and the expenses incurred in repairs and other charges, to Rupees 13, 32, 269 and odd in favour of the Devasthana. What was to be done with it? Mr. Clarke thought it advisable to follow the established rule, in accordance with which all surplus funds which accrued from Pagoda revenues whilst under the management of Government Officers, were customarily appropriated to purposes of public utility, such as roads, bridges, the improvement of towns, educational grants, and the like. The annual allowance was more than sufficient to meet all necessary expenses; and the revenues of the Pagoda would be more than doubled by the transfer to the Pagoda of the endowed lands. In like manner Mr. Clarke recommended that all the other Devasthana lands should be restored to the institutions to which they severally belonged. The objection that whereas in some cases the endowments yielded revenues in excess of the tasdik or customary allowances made for the maintenance of the institutions in favour of which they had been made, in other cases the revenues fell short of the allowances, should be allowed no weight, in as much as it was not the duty of Government to redress any inequalities observable in endowments made for the purpose of maintaining heathen worship. The words of the report are as follows: — “I do not think we could, with any propriety “or shew of justice, appropriate the excess in the “endowment over the tusdeek without making good “the deficiency; but the adoption of the later “course would subject the Government to the charge “and opprobrium of newly endowing Pagodas as much “as the following one would lay them open to the “accusation of spoliation and injustice. “It appears to me there is a marked “difference between distributing the proceeds of “Devastanum lands, under our control, among the “several Devastanums, in such proportions as may “have been sanctioned by time, and the “readjusting the endowments themselves. “It appears to me there is a marked “difference between distributing the proceeds of “Devastanum lands, under our control, among the “several Devastanums, in such proportions as may “have been sanctioned by time, and the “readjusting the endowments themselves. If the “endowments originally conferred on the Pagodas, “by those who may be presumed to have had the “strongest motives for maintaining them in “becoming grandeur, are secured to the people “intact and complete, they have no just grounds “for calling on a Christian Government to make “good any supposed deficiency or to make new. “It is not for a Christian Government but for “the devotees of the Temples, to devise measures “for making good any deficiency which they may “complain the transfer occasions,” But little was done upon this report: and the Devasthana lands have not yet been transferred. 37. There is a particular reason for our extracting this passage. The plaintiffs have been claiming the Government to be a trustee and this concept finds expression in the passage from Nelsons Manual extracted above. We will have occasion to refer to it a little later. 38. Madras Regulation VII of 1817 (The Madras Endowments and Escheats Regulation, 1817) came to be promulgated on 30.9.1817 for the due appropriation of the rents and produce of lands granted for the support of the Mosques, Hindu temples and Colleges or other purposes; for the maintenance and repair of bridges, Choultrie or Chattrams and other public buildings and for the custody and disposal of escheats. By virtue of Rule 2, the general superintendence of all endowments in land or money granted for the support of the Mosques, Hindu temples became vested in the Board of Revenue to carry into effect the duties entrusted to them by the Regulation. Rule 9 required the agents to ascertain particulars of endowments etc., and report to the Board. Rules 10, 11 and 12 provided for the agents to report: names etc., of the then trustees or managers and also by what authority they were appointed; vacancies or casualties and pretensions of claimants and to recommend fit persons where right of nomination rested with the Government and to appoint persons or make other provisions for trust with reference to conditions of endowment. Rule 15 made it clear that the object of the Regulation was solely to provide for the due appropriation of lands or other endowments granted for public purposes agreeably to the intent of the grantor and not to resume any part of them or of their produce for the benefit of the Government. It would thus appear that management of the endowed lands was taken over by the Board of Revenue pursuant to Regulation VII of 1817. 39. It is now necessary to refer to the averments in paragraphs 16 to 20 of the plaint in O.S. 171/1987. They are as follows:— “16. In the year 1801, the East India Company assumed Governance over the territory. Mr. Hordis the 1st Collector of Madurai and succeeding Collectors were having superintendence and control over the Temples properties including the schedule mentioned hills. Then regulation VII of 1817 was passed whereby the Board of Revenue assumed control over all the Temple properties. The plaintiff temples properties including the schedule mentioned hills were under the control and superintendence of the Board of Revenue from the year 1817. All the previous records, deeds, account books and other documents of the plaintiff temple were taken over by the Government. 17. All the incomes and expenditure relating to Alagar Hills the schedule mentioned property were entered in the accounts of the Government to the credit of the Temple accounts. Hence from the perusal of the accounts of the Government in the Taluk Office, Melur it can be seen that Alagar Hills, the schedule mentioned property was administered and managed as the plaintiff temples property. 18. When the Board of Revenue assumed superintendence of the plaintiff temples properties a list of properties that belonged to the plaintiff temple was prepared and Alagar Hills, the schedule mentioned property was included as a property of the plaintiff temple. But unfortunately a copy of the list was not given to the plaintiff temple even in spite of several requests in later years by subsequent trustees. 19. In subsequent year, the then trustee of the plaintiff temple required the Tahsildar of Melur and Deputy Collector and Treasury Officer to grant copies of the Temple accounts, maintained by the Taluk Office during the period in which the Board of Revenue was in control. A Clerk was appointed to write the entries relating to the accounts of the Temple and certified copies were granted. A Clerk was appointed to write the entries relating to the accounts of the Temple and certified copies were granted. 20. In the said certified copies, the expenses relating to the maintenance of the Alagar Hills, the schedule mentioned property and also the income derived therefrom are mentioned therein, thus confirming the fact that the Alagar Hills was administered by the Board of Revenue as the property of the plaintiff temple.” 40. We are also to further recall that in the list of documents given in the plaint under Order VII Rule 14 C.P.C it is specifically mentioned that seventy five documents serial numbers 1 to 75 being records of orders relating to plaintiff temple for the period 1835 to 1897 are available with the Deputy Collector Huzur Treasury, Madurai District. 41. Meeting the above, in paragraphs 9 to 11 of the written statement of the first defendant, this is what is stated. 9. The allegations in paras 13 to 15 are all incorrect. Merely because a temple is situated on the Northern Part of the Hills and number of sacred places are situate and festivals have all along been conducted, the plaintiff cannot consider himself to be in possession and enjoyment of the suit property. The hills are called ‘Alagar Hills’ not because it belonged to the Temple, but because the hills are situate nearby to the Temple. The allegation in para-14 that successive Governments nd Kingdoms and th e British Regime recognised that the schedule mentioned hills belonged to the Temple is false. The hills were never considered nor treated as the property of the Temple. The allegation in para-15 that temple were enjoying forest produce from the hills by leasing out honey, tree cutting and the timber were used in the kitchens is false. The allegation that the Temple had also been protecting the schedule hills by posting guards and by other means is also false and untenable. There was no such system of protecting the forests existing them. 9. The allegations in para 16 of the plaint are all incorrect. The East India Company with their policy, adopted throughout India, avoided offending the religious feelings of the Hindus and they did not prevent anybody from constructing temples and managing by themselves. On the establishment of British Government in India, they appointed temple committees. The British Government did not interfere with the religious affairs of anybody. The East India Company with their policy, adopted throughout India, avoided offending the religious feelings of the Hindus and they did not prevent anybody from constructing temples and managing by themselves. On the establishment of British Government in India, they appointed temple committees. The British Government did not interfere with the religious affairs of anybody. In the circumstances that the 1st Collector of Madurai and succeeding Collectors were having superintendence and control over the Temple and its properties including the schedule mentioned hills is absolutely incorrect, the Temple committee was appointed only for management of the Temple above. The committee never had any superintendence and control over the suit hills. 10. The allegations in para 17 are all false. It is false to state that all the income and expenditure relating to Alagar Hills, the schedule mentioned property were entered in the accounts of the Government to the credit of the Temple accounts. All the grazing and other leases, Revenue and expenditure are under the control of Forest Department in the Alagar Hills Reserved Forest. The income mentioned is only from the Temple and not from Forest area. Hence the allegation that from the perusal of the accounts of the Government in the Taluk Office, Melur it can be seen that Alagar Hills, the schedule mentioned property was administered and managed as the plaintiffs property is false. 11. The allegations in paras 18 to 20 are not fully correct. The allegation that in the list of properties the schedule property was included as a property of the Temple is false. The allegation that a copy of the list of properties was not given in spite of several requests is false. The further allegation, that in the certified copies, the expenses relating to the maintenance of Alagar Hills and also the income derived therefrom are mentioned therein thus confirming the fact that Alagar Hills was admi nistered by the Board of Revenue as the property of the plaintiff temple. This defendant submits that the plaintiff has no title to the suit property and occasional user and expenses incurred for such occasional use even if true, cannot confer any title on the plaintiff in respect of suit property”. 42. There is no denial anywhere about the availability of the documents. This defendant submits that the plaintiff has no title to the suit property and occasional user and expenses incurred for such occasional use even if true, cannot confer any title on the plaintiff in respect of suit property”. 42. There is no denial anywhere about the availability of the documents. According to learned Senior Counsel, the defendants have deliberately kept back the documents and therefore, adverse inference has to be drawn against them. He relied on the following judgments in this connection. (a) Gangadharan Ayyar and others v. Subramania Sastrigal and Others (A.I.R. 1949 Federal Court 88=(1949) 62 L.W. 403) where it has been held that where the defendants are guilty of suppression of evidence which it was their duty to place before the Court, no conclusion in their favour should be arrived at merely on the ground of paucity of evidence which is of their own creation. (b) Atyam Veeraraju and others v. Pechetti Venkanna and others (A.I.R. 1966 S.C. 629), where it has been held by the Constitution Bench of the Supreme Court that if the defendants deliberately withhold crucial document, the Court should make every presumption against them to their disadvantage consistent with the facts. (c) Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others (A.I.R. 1968 S.C. 1413) holding that even if the burden of proof does not lie on a party, the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. (d) Baljit Singh and Another v. State of U.P. (A.I.R. 1976 S.C. 2273) holding that party in possession of material documents should produce them and that otherwise adverse inference should be drawn against such a party. (e) Ramdas Oil Mills v. Union of India (A.I.R. 1977 S.C. 638) which is also to the same effect. 43. The appellant in A.S. 563/1989 has now filed before this Court a petition in C.M.P. No. 6110 of 2003 under Order 41 Rule 27 C.P.C for reception of the documents set out therein as additional evidence in the appeals. (e) Ramdas Oil Mills v. Union of India (A.I.R. 1977 S.C. 638) which is also to the same effect. 43. The appellant in A.S. 563/1989 has now filed before this Court a petition in C.M.P. No. 6110 of 2003 under Order 41 Rule 27 C.P.C for reception of the documents set out therein as additional evidence in the appeals. It is stated in the affidavit in support of the petition that along with the plaint, xerox copies of documents 1 to 77 were filed of which the originals of 1 to 75 were with the respondents/defendants and they were requested to produce the aforesaid documents for the purpose of effective adjudication of the claim in the suit, that they neither filed those documents nor sent any reply to the petitioner/plaintiff temple, that in the trial, though all the xerox copies of the documents were delivered to the counsel for the petitioner temple, only some of them were marked and the remaining documents though referred in the plaint were not marked that in order to substantiate that the petitioner temple had been in effective occupation of the Alagar Hills even long before the notification (under the Forest Act) was issued and at no point of time, the said Alagar Hills were at the disposal of the government, that the remaining unmarked ten documents already referred to in the plaint are being filed by way of additional evidence in the appeal for effective adjudication. It is further alleged that the respondents have been requested to produce the original documents. C.M.P. 6111/2003 has been taken out also under Order 41 Rule 27 C.P.C for reception of the communication dated 14.10.1986 from the Joint Commissioner, H.R. & C.E to the Executive Officer of Alagar Koil as additional evidence. It is stated that the Executive Officer of Alagar Koil had been assigned with the power to file the suit but the power was omitted to be filed into court at the time of trial that in view of the judgment of a Bench of this Court in Sri Arthanareeswarar of Tiruchengode v. T.M. Muthuswamy Padayachi (2003 1 L.W. 386) holding that unless the Executive Officer of a temple is specifically empowered to file the suit, he cannot maintain the suit, the document is sought to be produced as additional evidence. 44. The respondents/defendants have not filed counters. 44. The respondents/defendants have not filed counters. A memo has been filed into court stating that all sincere and earnest efforts were taken by the Forest Department along with the Collector, Dindigul to trace out the records, that the records called for are more than 150 years old, and the same are not traceable. The memo further states that in the above circumstances, both the appeals may be dismissed. It is rather strange and we wonder how this prayer could be granted under the circumstances set out in the memorandum. 45. We have already pointed out that there is no express or even implied denial of the existence of the documents in the written statement. For example it is stated in paragraph 10 of the written statement that the averment that all the income and expenditure relating to Alagar Hills were entered in the accounts of the Government to the credit of the Temple accounts is false and that the income mentioned is only from the Temple and not from the forest area. Again in paragraph 11, it is stated that the allegation that in the list of properties the schedule property was included as a property of the Temple is false. Be it noted the accounts and the list of properties have not been produced by the defendants. The availability of the accounts and the list is not denied. As has been pointed out in several decisions of the Supreme Court adverse inference against the defendants has to be drawn. We accordingly draw adverse inference against the defendants for non production of material documents viz., accounts and list of properties. We hold that if those documents had been produced, they would have been against the stand of the defendants. 46. The documents now sought to be produced are true copies of plaint documents 35, 36, 40, 41, 42, 47, 52, 53, 55 and 63. They relate to the period 18.7.1873 to 25.6.1880. The genuineness of the documents sought to be produced is not disputed. They have come from proper custody. They are not any new documents. The plaintiff had called upon the defendants to produce the originals. It has not been done. No doubt mere nonfiling of counter cannot be a ground for receiving additional evidence. The genuineness of the documents sought to be produced is not disputed. They have come from proper custody. They are not any new documents. The plaintiff had called upon the defendants to produce the originals. It has not been done. No doubt mere nonfiling of counter cannot be a ground for receiving additional evidence. However, in our view, the materials already on record are not enough to pronounce judgment without taking into consideration the documents sought to be produced now. The trial court has also criticized the plaintiff stating that the plaintiff temple has not produced any document to show that the schedule hills belonged to it. In the circumstances, a clear case is made out for reception of these documents as additional evidence. We, therefore, allow both the Civil Miscellaneous Petitions C.M.P. Nos. 6110 and 6111 of 2003 and direct the documents set out therein to be marked as Exhibits A. 46 to A. 56. 47. It is now necessary to find out as to what happened after 1817 when Regulation VII was passed. Under Ex. A.5 dated 14.3.1916 the Manager of Kallalagar Devasthanam writes to the Collector of Madura to pass orders for the preparation of an abstract of the records belonging to Sri Kallalagar Devasthanam in the custody of the Madura Collectorate for about 60 years from 1804 to 1865 and furnish the same to him as was done in the case of Madura and Co. Devasthanams and Thirumuhur Devasthanam. 48. Under Ex. A.6 dated 2.4.1916, the Collector writes to the Manager, Sri Kalla Alagar Devasthanam that special staff have to be employed for the purpose for two months and that they have to be remunerated by the Temple. 49. Ex. A.7 dated 25.4.1916 is also to the same effect as Ex. A.6. Under Ex. A.8 dated 12.6.1916, the Collector writes to inform that the Government have sanctioned the appointment of three temporary clerks for the said purpose and that the Temple should furnish the marginally noted stationery for use by the clerks to prepare the records abstract. 50. Under Ex. A.9 dated 26.6.1916, the receipt of the stationery articles is acknowledged. Under Ex. A.10 the Collector informs the Temple that progress reports are being obtained daily from the three temporary clerks and that the abstracts would be sent after the expiry of two months. Under Ex. 50. Under Ex. A.9 dated 26.6.1916, the receipt of the stationery articles is acknowledged. Under Ex. A.10 the Collector informs the Temple that progress reports are being obtained daily from the three temporary clerks and that the abstracts would be sent after the expiry of two months. Under Ex. A.11 dated 22.8.1916, extension by two months is sought by the Collector. Under Ex. A.12 dated 19.10.1916, famine batta to the temporary clerks is asked for. Under cover of Ex. A.13 dated 31.10.1916, the ab stract of records is sent. Under Ex. A.25 dated 20.1.1832, Tahsildar, Melur writes to suit temple maniam in reply to the complaint made by the latter about the disappearance of honey combs from Alagar Hills stating that steps were being taken through Nattanmai. The letter further instructs the maniam to separate the honey and the wax through servants, measure the honey and pour it in jars and keep both the honey and the wax safe. This letter talks of securing the honey in Alagar Hills by the then maniam of plaintiff temple. Unless the Temple had some interest in the hills, there was no need for this letter. Ex. A.26 dated 8.3.1856 is also a letter of significance. The then Head of Police writes to the Manager of the Temple stating that he had received his letter regarding theft of tamarind from the trees near Nupura Gangai banks in Alagar Hills belonging to the Temple and further requiring the Temple to produce proof that the Temple had been enjoying the usufructs from the tamarind trees in the Alagar Hills either personally or by leasing out and whether the trees belonged to the Temple and whether there were accounts relating to the same, whether the Temple had paid kist and so on and so forth. Under Ex. A.27 on 9.4.1856 Samuvaiyyan the peshkar of the Temple writes to the manager reporting about the removal of 24 loads of tamarind brought from the trees in the hills above the passage to Nupura Gangais belonging to the Temple, by Kambaii Koundan as per instructions given. Ex. Under Ex. A.27 on 9.4.1856 Samuvaiyyan the peshkar of the Temple writes to the manager reporting about the removal of 24 loads of tamarind brought from the trees in the hills above the passage to Nupura Gangais belonging to the Temple, by Kambaii Koundan as per instructions given. Ex. A.29 is a Karar nama executed by Chinnan and three others on 3.1.1861 undertaking to remove and collect the honey from the honey combs in the various trees in several places on Alagar Hills belonging to the Temple, as per the usual practice, give 2/3rd to the Temple and retain 1/3rd for themselves towards their guarding services and in case of any misfeasance or malfeasance they would be answerable to the Temple. Ex. A.38 dated 12.8.1848 is a letter from Meenakshi Karuppan Konar to the Tem ple. He is the shepherd taking care of the cattle totalling 130 belonging to the Temple, requiring the Temple to make 18 tin bells and 20 bell metal bells for tying round the necks of the cattle for easy identification while they grazed in the hills. Ex. A.39 dated 15.11.1848 is a letter from the peshkar of the Temple to the manager of the Temple giving details of the expenses incurred and the balance available for repairing the Nupura Gangai road so that the deity could be taken to Thotti during the “Ennaikappu Utsavam”. Ex. A.37 dated 29.11.1848 is a letter from the the Head of Police Narayana Rao to temple Ameena about fixing doors on all four sides of the Temple fort for reasons of security from theft and safety from tigers. Ex. A.34 dated 23.8.1850 is an important and crucial document. It is a letter from the Manager of the Temple to the Peshkar asking the latter whether it was true that on account of the rains in the hills belonging to the Temple, there was flooding inside the Temple by rainwate r entering through the Temple northern door and whether recurrence could be avoided by deepening the old channel. None of these documents is disputed by the defendants. These documents clearly show that between 1817 and 1863 the Temple had exercised rights of ownership in the suit hills and claimed that they belonged to the Temple.