Judgment :- K. Kannan, J. Nature of Lis: 1. The batch of cases arise out of the common order passed by the District Judge, Thuthukudi allowing the enforcement of a ‘foreign award’ through execution petitions filed in EP 22 and 23 of 2007 in favour of the respondent. The appellant had filed OPs 222 & 223/2007 for setting aside the ‘foreign award’ rendered by the arbitrator. Consequent on allowing further proceedings in EPs, the District Judge dismissed them summarily, even before serving the Ops on the respondent. The CRPs are against the order in EPs and CMAs are against the summary dismissals in OPs. The appellant/revision petitioner will be referred as judgment debtor and the respondent will be referred as the decree holder Nature of Foreign Award 2. The decree holder is Islamic Republic of Iran Shipping Lines of Tehran. The judgment debtor is M/s Alagar Exports. By a charterparty dated 9.4.2001, the Decree holder had undertaken to transport a certain quantity of cargo of bulk salt. The voyage was from Kandla, India to Belawan and Kosichang, Thailand. The charterparty stipulated demurrage charges payable in US $ for laytime at the time of loading and discharging cargo that occasioned for fault of the vessel. The demand made for US $ 67,915.53 was refused to be paid by the exporter and by invoking the arbitration clause in the charterparty, David Farrington, London was appointed to act as Sole Arbitrator. He purported to enter reference on 5. 6.2002. The decree holder scaled down the demand for US $ 59,433.98 in his claim statement. Notices of appointment of arbitrator, notice of hearings before the arbitrator were alleged to have been served on the judgment debtors and consequent on the latter’s failure to participate in the proceedings, a final award was passed on 26th August 2004 for US $ 58,933.98, with costs and interest. Proceedings for execution in India 3. Two EPs 22 and 23 of 2007 had been filed by decree holder against the judgment debtor before the District Court Thuthukudi for Rs.36,43,944.20 and Rs.40,09,835.90, with interest and costs respectively. The judgment debtor filed objections detailing several grounds, including the plea of non-issue of notice, the maintainability of EPs and the validity of the awards. Two EPs 22 and 23 of 2007 had been filed by decree holder against the judgment debtor before the District Court Thuthukudi for Rs.36,43,944.20 and Rs.40,09,835.90, with interest and costs respectively. The judgment debtor filed objections detailing several grounds, including the plea of non-issue of notice, the maintainability of EPs and the validity of the awards. The judgment debtor filed petitions under section 47 CPC read with sections 45-48 of the Arbitration and Conciliation Act, 1996 stating that the award is not valid and executable and filed also petitions OP 222 and 223 of 2007 before the same court under section 34 of the Act for setting aside the award on various grounds. The petitions filed in EP by the judgment debtor were unnumbered and the petitions for setting aside the awards had not even been served on the decree holder. The EPs alone had been taken up for consideration and allowed. While allowing the petitions, the District Judge observed that having regard to the fact that the foreign award was found to be enforceable, the petitions under section 47 CPC read with section 45-48 did not require to be re-appraised and decided the issue against the judgment debtor. Having regard to allowing the EPs, the Ops for setting aside the awards were summarily dismissed. Grounds of challenge 4. The grounds of challenge were both on procedural as well as substantial grounds. According to the judgment debtor, the petitions filed under section 47 CPC read with section 45-48 of Arbitration and Conciliation Act were dismissed even without numbering the same. The petitions for setting aside the award had similarly been dismissed without serving notice on the decree holder summarily by advancing the date of hearing by the only fact that further proceedings in the EPS were awarded. Of the substantive grounds, the judgment debtor would contend that when the petitions for setting aside the award were filed, the court ought to have put on hold execution petitions as the admission of the petitions under section 34 of the Act operated as automatic stay and the order passed allowing the EPs were contrary to law. The foreign award itself was not valid, since the judgment did not have any notice of arbitration proceedings at all. The foreign award itself was not valid, since the judgment did not have any notice of arbitration proceedings at all. The alleged facsimile messaged did not arrive at all and the transmission reports relied by the decree holder as having been made by the arbitrator and the decree holder were concocted. The award was fraudulent and not enforceable. There were other grounds also relating to the so called wrong assumptions of the award relating to the calculation of lay hours at the port of discharge amounting misconduct of the arbitrator, the delay in the award affecting the law of limitation and the award as being opposed to public policy. 5. The decree holder counters the arguments by contending that counters in the EPs filed were in pari materia to what had been set forth in the petitions under section 47 CPC read with sections 45-48 of the Arbitration and Conciliation Act and the court below had, while dealing with the objections to the EPs had adverted to all the objections in the counter and the grounds set forth in the unnumbered petitions. Consequently, the judgment debtor could not be said to be prejudiced. The OPs for setting aside the foreign award was not maintainable in Indian Court, having regard to the express provisions relating to arbitral clause in the charterparty and the other relevant clauses in the document. According to the respondent’s counsel, if the respondent did not object to want of notice in the applications filed by the judgment debtor, the latter cannot himself complain that notices should have been sent to the decree holder in the applications. Enforceability of Foreign Award in India 6. According to the respondent’s counsel, if the respondent did not object to want of notice in the applications filed by the judgment debtor, the latter cannot himself complain that notices should have been sent to the decree holder in the applications. Enforceability of Foreign Award in India 6. The Arbitration and Conciliation Act defines a foreign award under section 45 thus: “In this Chapter, unless the context otherwise requires, "foreign award" means an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960— (a) In pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and (b) In one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification in the Official Gazette, declare to be territories to which the said Convention applies.” It is not in dispute before us that we are concerned with the enforcement of a foreign award, having been rendered by agreement between parties providing for resolution of disputes arising out putting the charter party in operation through clause 36 of the Charter that “all disputes from time to time arising should, unless the parties agreed forthwith on a single Arbitrator, be referred to the final arbitration of two Arbitrators carrying on business in London who shall be engaged in the shipping trade and/or be LMAA members, one to be appointed by each of the parties. “ The seat of arbitration as per the Charter is England. The requirements of proof of the award and the agreement having been satisfied under section 47 by the Executing Court, when the duly authenticated copies of arbitration award and the charter party were put in Court, the Award being a decree of Court became enforceable as per section 49 of the Act. The assumption of jurisdiction by the District Court at Thuthukudi was unexceptional, having regard to the fact that the judgment debtor and the properties that were sought to proceeded against were within the territorial jurisdiction of the executing court. The assumption of jurisdiction by the District Court at Thuthukudi was unexceptional, having regard to the fact that the judgment debtor and the properties that were sought to proceeded against were within the territorial jurisdiction of the executing court. Grounds of post-award challenge under section 48 are the same as the grounds for setting aside the award under section 34 of the Arbitration Act The court before which a party puts in execution a foreign award may refuse enforcement if a judgment debtor challenges the award on any of the grounds mentioned under section 48 of the Act. The grounds are exhaustive: Sub-section (1) of Section 48 lists five conditions, any one or more of which needs to be satisfied for refusing enforcement of foreign award. Clause (a): Incapacity When any of the parties to the agreement or both were under some incapacity as per the law applicable to them, enforcement may be refused. This clause also speaks of invalidity of agreement under the law to which the parties have subjected it or failing any reference thereto under the law of the country where the award was made. Invalidity of an agreement may arise on account of factors like involuntariness, misrepresentation, fraud, undue influence, duress, etc., and non-compliance with the law governing the arbitration agreement. Clause (b): Absence of hearing The violation of the principles of natural justice in arbitral proceedings is a ground for refusing enforcement. Inability to present the case for want of proper notice of appointment of arbitrator, or proper notice of the arbitral proceedings or for similar valid reason are covered by the provision. Notice of the arbitral proceedings is not complete without supply of statement of claim and copies of the documentary evidence to the defendant. Accordingly, a foreign award made in violation of this principle cannot be enforced. Where a party refuses to participate or chooses to remain silent in arbitral proceedings, the award cannot be set aside. Inability referred to must arise on account of factors which are beyond the control of that party or in disregard to the principle of equal treatment to parties. Clause (c): Award on existing reference The award should restrict to questions actually submitted to the arbitral tribunal because the jurisdiction of the Tribunal is confined only to the terms of reference. The proviso to this clause carves out an exception. Clause (c): Award on existing reference The award should restrict to questions actually submitted to the arbitral tribunal because the jurisdiction of the Tribunal is confined only to the terms of reference. The proviso to this clause carves out an exception. It is to the effect that if the decision on matters submitted for reference and the decision on matters not submitted, are separable the former part may be enforced. It is for the party seeking enforcement to prove that separation is possible. Clause (d): Legality of composition of arbitral tribunal and procedure Under this clause, enforcement of a foreign award may be refused on the following grounds: (a) the composition of the arbitral tribunal was not in accordance with the agreement; or (b) arbitration procedure was not as agreed between the parties; or (c) failing such agreement if the composition of the arbitral tribunal or the procedure was not in accordance with the law of the country where the arbitration took place. Clause (e): Award not yet binding, set aside, or suspended Under this clause, enforcement of a foreign award may be refused where the award has not yet become binding on the parties or the award has been either set aside or suspended by a competent authority of the country in which or under the law of which that award was made. The courts of the country in which or under the law of which the award was made have the exclusive jurisdiction and competence to set aside or suspend that award. Sub section (2) affords two more grounds on which enforcement of an arbitral award may be refused by the court: (i) if the subject matter of difference between the parties is not capable of settlement by arbitration under Indian law; and (ii) its enforcement is contrary to the public policy of India. Section 34 contains similar provisions as grounds for setting aside the award. All the grounds under the section 48 are also available under section 34. Consequently, if a foreign award is susceptible to challenge under section 48, a fortiorari, it need not be set aside again under section 34 or put through the test of challenge under the said section. Section 34 contains similar provisions as grounds for setting aside the award. All the grounds under the section 48 are also available under section 34. Consequently, if a foreign award is susceptible to challenge under section 48, a fortiorari, it need not be set aside again under section 34 or put through the test of challenge under the said section. This obtains relevance in this case for two reasons: After the foreign award was filed in court for execution, apart from filing objections on grounds available under section 48 and also through independent applications under section 47 CPC, the judgment debtor filed OPs 222 and 223 of 2008. By such a process, the judgment debtor wanted to contend that the filing of the applications under section 34 operated as automatic stay of execution and the court could not have proceeded with the execution. Section 48 itself provides as one of the grounds under clause (e) such an eventuality. If the foreign award had already been set aside, the enforceability does not arise. The respondent provides a tabulation that proves that grounds under section 48 are the same under section 34, which we reproduce as under: Table Maintainability of petitions under section 34 in respect of foreign award, under the relevant clauses in charter party The petitions filed by the judgment debtor for setting aside the award under section 34 was dismissed by the District Court without adverting to the merits on the only ground that the award was found executable while disposing of the EPs. The appellant relied on the judgments of the Supreme Court in Bhatia International v Bulk Trading S.A. and another (2002) 4 SCC 105 and Venture Global Engineering v Satyam Computer Services Ltd and another 2008(1) CTC 348. In Bhatia International the Supreme Court dealt with the issue of when the arbitral agreement provided for a foreign country as a forum of arbitration, whether it was possible for an Indian court to grant interim protection under section 9. It said, it could on the ground that section 9 which was in Part I of the Act would apply to all arbitrations and to all proceedings and that included a foreign award also, unless the parties had contracted out of such a right. It said, it could on the ground that section 9 which was in Part I of the Act would apply to all arbitrations and to all proceedings and that included a foreign award also, unless the parties had contracted out of such a right. Venture Global has greater relevance because, there the foreign award had been put in execution in the foreign country where the award had been passed and a petition under section 34 had been filed in India. The Court while considering the contention that a foreign award could be set aside only before a competent authority of the country in which or under the law of which the award was made, said, "On close scrutiny of the materials and the dictum laid down in Three-Judge Bench decision in Bhatia International (supra), we agree with the contention of Mr. K.K. Venugopal and hold that paragraphs 32 and 35 of the Bhatia International (supra) make it clear that the provisions of part I of the Act would apply to all arbitrations including international commercial arbitrations and to all proceedings relating thereto. We further hold that where such arbitration is held in India, the provisions of Part I would compulsorily apply and parties are free to deviate to the extent permitted by the provisions of Part I. It is also clear that even in the case of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. We are also of the view that such an interpretation does not lead to any conflict between any of the provisions of the Act and there is no lacuna as such. The matter, therefore, is concluded by the three-Judge Bench decision in Bhatia International (supra)." Therefore, the maintainability of section 34 petitions before the Indian court for setting aside the foreign award could not be in doubt. But having regard to the congruence of the grounds available under sections 34 and 48, the disposal under one section will conclude the issue under the other. The ideal procedure would have been to dispose of the petitions under the respective sections by a common order after a common trial by a common order instead of a summary rejection of petitions under section 34 after disposal of executability of the foreign award. The ideal procedure would have been to dispose of the petitions under the respective sections by a common order after a common trial by a common order instead of a summary rejection of petitions under section 34 after disposal of executability of the foreign award. If the petitions under section 48 had been numbered and a disposal on merits adverting to all the grounds therein, we would have let the matter to reside there. But the court below did not even number the petitions under section 48, but proceeded to dispose of the execution petitions on the mere consideration of the aspect whether a foreign award was enforceable in Indian Courts and proceeded to deal with the objections under section 48 in the same order in a laconic fashion. We agree with the learned counsel for the respondent that even the execution petitions filed by the decree holder and objections filed by the judgment debtor adverting to the grounds under section 48 as substantial compliance, even if section 48 applications were not numbered. The Supreme Court has held in Fuerst Day Lawson Ltd v Jindal Exports Ltd (2001) 6 SCC 356 ) as follows: "Thus, in our view, a party holding a foreign award can apply for enforcement of it but the court before taking further effective steps for the execution of the award has to proceed in accordance with Sections 47 to 49. In one proceeding there may be different stages. In the first stage, the court may have to decide about the enforceability of the award having regard to the requirement of the said provisions. Once the court decides that the foreign award is enforceable, it can proceed to take further effective steps for execution of the same. There arises no question of making foreign award a rule of court/decree again. If the object and purpose can be served in the same proceedings, in our view, there is no need to take two separate proceedings resulting in multiplicity of litigation. It is also clear from the objectives contained in para 4 of the Statement of Objects and Reasons, Sections 47 to 49 and the scheme of the Act that every final arbitral award is to be enforced as if it were a decree of the Court. It is also clear from the objectives contained in para 4 of the Statement of Objects and Reasons, Sections 47 to 49 and the scheme of the Act that every final arbitral award is to be enforced as if it were a decree of the Court. The submission that the execution petition could not be permitted to convert as an application under Section 47 is technical is of no consequence in the view we have taken. In our opinion, for enforcement of a foreign award there is no need to take separate proceedings, one for deciding the enforceability of the award to make it a rule of the court or decree and the other to take up execution thereafter. In one proceeding, as already stated above, the court enforcing a foreign award can deal with the entire matter." Proof of notices in arbitration proceedings go to root of the matter: 8. We have seen above that absence of hearing is one of the potent grounds of attack for the non-enforceability of a foreign award. The learned district judge has gloated over the issue by a reference to what is contained in the award itself about the notices and the copies of documents referring to the fax transmissions of notices by the decree holder before and at the arbitral proceedings and the notices of the arbitrator. When the award itself is under challenge, it would be question begging to allow the recitals in the award about service of notice to decide the issue of whether notices had been properly served. The counsel for the respondent referred us to the decision of the Supreme Court in SIL Import, USA v Exim Aides Silk Exporters (1999) 4 SCC 567 ), which has laid down in the context of notice requirements of section 138 of Negotiable Instruments Act as follows: "15. Facsimile (or fax) is a way of sending handwritten or printed or typed material as well as pictures by wire or radio. In the West such mode of transmission came to wide use even way back in the late 1930s. By 1954, the International News Service began to use facsimile quite extensively. Technological advancement like facsimile, internet, e-mail etc. were in swift progress even before the Bill for the Amendment Act was discussed by Parliament. In the West such mode of transmission came to wide use even way back in the late 1930s. By 1954, the International News Service began to use facsimile quite extensively. Technological advancement like facsimile, internet, e-mail etc. were in swift progress even before the Bill for the Amendment Act was discussed by Parliament. So when Parliament contemplated notice in writing to be given we cannot overlook the fact that Parliament was aware of modern devices and equipment: already in vogue." The fax transmissions are all denied as having been received by the judgment debtor. The counsel for the respondent stated that all the copies of the documents filed in court have been filed in the paper book filed by the appellant/revision petitioner himself and he cannot deny them. This attempts to trivialize the ground of attack of want of notice taken by the judgment debtor. The court below has not marked any exhibits. If even without marking the documents, the court could have taken note of the documents in its file, it could be on matters of admitted documents. The facsimile messages could be copies because the fax transmission report must be of originals, when the truth is denied by the judgment debtor. The primary evidence is not before court nor are any explanations given for production of only the secondary evidence, even though the documents of proof of service had been specifically denied. The vital matter of service of notices and proof of opportunity for participation at the hearing could not have been matters of inference on conjectures. We are aware of the fact that mere marking of documents themselves will not render the documents admissible. The proof of the same will have to confirm to the requirements of the Indian Evidence Act. The learned Judge has made references to the dates of communication of the Fax massages as found placed in the Arbitration awards and as stated by the decree holder in the execution petitions. We are afraid that it would be impermissible to accept the documentary evidence without adequate proof of the same in the manner known of law viz. by requiring the decree holder to prove the mode of service with right of cross-examination given to the respondent. If the decree holder chooses not to let in any evidence at all, it would always be possible to make such judicial inference, as the law permits. by requiring the decree holder to prove the mode of service with right of cross-examination given to the respondent. If the decree holder chooses not to let in any evidence at all, it would always be possible to make such judicial inference, as the law permits. The Judgment Debtor will also have adequate opportunity to explain the reference to tele-fax numbers found in the transmission reports and also give evidence regarding the alleged suspicious entries in the report, as contended by the Judgment debtor. Failure to consider all objections by way of grounds of challenge under section 48 of the Arbitration Act vitiates order The order of the learned District Judge raises three issues for consideration viz. The court has dealt with under issue No.1. The aspect of the service of notices of the arbitral proceedings. The issue whether foreign award can be executed and challenged by either side in India under the Arbitration Act, cannot have any doubt any longer for the reasons given by us in the aforesaid paragraphs. The Court below has come to the correct conclusion that the foreign award can be enforceable, as if it were the decree under Section 48 of the Arbitration and Conciliation Act. It has not however adverted to several grounds urged by the Judgment debtor in the execution petition and replicated in the unnumbered petitions under Section 47 CPC read with 48 of the Arbitration and Conciliation Act as well as in the ground of challenge made in O.P.Nos.222 and 223 of 2008. The second issue regarding the fact whether the foreign award can be set aside on an re-appraisal in the ground set down under Section 48 as obtained, no more attention from learned District Judge, except to state that in view of his finding that the foreign award can be executed in a Court in India and for the reasons given by him under Issue No.1. Issue No.2 was not required to be dealt with in detail. This line of reasoning is clearly, in our view, not tenable. Issue No.2 was not required to be dealt with in detail. This line of reasoning is clearly, in our view, not tenable. While we may observe that the merits of the award of the line of reasoning of the arbitrator could not be examined, in the proceedings under Section 48 or Section 34 of the Arbitration Act, as if it were an appealable order, the Court will have to examine the enforceability of the award under the grounds specifically adumbrated in the sections. We have therefore to hold that the failure of the court below to examine all the objections by way of grounds of challenge under Sections 34 and 48 of the Arbitration and Conciliation Act vitiates to order of the learned District Judge. Conclusion and ultimate disposition: 10. In the circumstances, we set aside the common order passed in Execution Petition Nos.22 and 23 of 2007 on the file of the Principal District Judge, Toothukudi. Consequently, the order of dismissal passed in O.P.NOS. 222 AND 223 of 2008 are also set aside. The unnumbered petitions under Section 47 CPC read with Section 48 of the Arbitration and Conciliation Act shall be numbered and taken up along with the matters that stand remitted to the Court below. It will be open to the decree holder to treat his own averments in the execution petitions and the objection filed for both the petitions in O.P.Nos.222 and 223 of 2008 as well as for the unnumbered petitions which have been directed to be numbered as referred to above. The decree holder if he so chooses, may also file his independent petitions to the aforesaid petitions. The pleadings shall be completed within fifteen days from the date of receipt of the records before the Court below and thereafter the learned District Judge is requested to fix the date of hearing after affording opportunity to both the parties to adduce such documentary and oral evidence on the issues touching upon the respective petitions and conclude the matter within the period of two months from the date of commencement of enquiry and proceed to pass final orders, as expeditiously as possible. The CMAs, and CRPs. are disposed of on the above terms. No costs. Consequently, connected M.Ps. are closed. 51. The CMAs, and CRPs. are disposed of on the above terms. No costs. Consequently, connected M.Ps. are closed. 51. The complaint of the Temple is that the Temple records were not handed over to the Temple Committee and if only they had been handed over, it would have been possible to know where the Temple stood with regard to its properties, its rights and obligations, its income and expenses and so on and so forth. 52. We may now have to go back to Nelsons Manual page 138- “When Mr. Hurdis took charge of the country, he found that what were called the Hafta Devasthana lands were yielding to the Circar a revenue of Rupees 50,291 as. 9 p., 10, or about twice the amount of Mohammad Yusuf Khans original and larger allowance; and that only half that allowance was being made by the Circar to the seven Churches. He was therefore in doubt as to whether Government ought to retain possession of the lands, and reported accordingly. Upon this the Board of Revenue hastily wrote the order which has been noticed above, without sufficiently understanding the meagre report submitted for their consideration and without calling for such information as would have enabled them to form a just estimate of the merits of the case as between them and the managers of the Devasthanas. The question to be decided was the following:— A certain Telugu King of a Tamil kingdom which had been completely broken up and destroyed some sixty years previously, had some hundred and fifty years previously granted certain lands to a certain Pagoda. Some of those lands had been seized by invading enemies and others. The remainder had been taken away from the Pagoda by the Mahometan chief who destroyed the kingdom. Certain lands supposed to be those which formed that remnant had been restored, or were said to have been restored to the Pagoda by a certain Mahratta chief. If so, they had been again usurped by a Mahometan ruler: and for a period of some forty five years their revenues had certainly formed part of the revenues of the Circar. Certain lands supposed to be those which formed that remnant had been restored, or were said to have been restored to the Pagoda by a certain Mahratta chief. If so, they had been again usurped by a Mahometan ruler: and for a period of some forty five years their revenues had certainly formed part of the revenues of the Circar. In such case was it, or was it not necessary for the British Government to make an enquiry into the nature of the original grant; to endeavour to trace separately the ownership of each parcel of land which was represented in certain very doubtful accounts to be Hafta Devasthana, through endless political changes and convulsions to the time of the alleged grant? And if it appeared that the alleged grant had in fact been made, and that the lands alleged to the Hafta Devasthana lands had undoubtedly formed part of the original endowment, to restore them parties who, if they had ever possessed title deeds, could not produce them or give secondary evidence of their contents, and who had certainly been out of possession for a period of more than forty years.? Had the Board been made aware of the real nature of the question to be decided, there can be little doubt that they would have passed a very different order. But as it happened, their order led to no results. For some reason which cannot be ascertained, Mr. Hurdis never made the proclamation relating to the transfer of the lands, and never transferred them. And the Hafta Devasthana lands are to this day in the possession of Government, and bring in a revenue amounting to no less than Rupees 50,000 and o dd. The question of their disposal was revived in 1849 and again in 1859:”. 53. We have elsewhere extracted the passage from pages 148 to 151 of Nelsons Manual to note that an advice was given to restore possession of the endowed properties to the respective pagodas and that the Government occupied the position of a trustee. 54. The above are the materials available for the period 1817 to 1863. 55. In 1863, the Religious Endowments Act (Act XX of 1863) came to be passed. As per Section 4 there shall be transfer etc., of trust property in charge of Revenue Board of trustees. Section 4 runs as follows:— 4. 54. The above are the materials available for the period 1817 to 1863. 55. In 1863, the Religious Endowments Act (Act XX of 1863) came to be passed. As per Section 4 there shall be transfer etc., of trust property in charge of Revenue Board of trustees. Section 4 runs as follows:— 4. Transfer to trustees, etc., of trust property in charge of Revenue Board - In the case of every such mosque, temple or other religious establishment which, at the time of the passing of this Act, shall be under the management of any trustee, manager or superintendent, whose nomination shall not vest in, nor be exercised by, nor be subject to the confirmation of the Government or any public officer, the State Government shall, as soon as possible after the passing of this Act, transfer to such trustee, manager or superintendent, all the landed or other property which, at the time of the passing of this Act, shall be under the superintendence or in the possession of the Board of Revenue or any local agent, and belonging to such mosque, temple or other religious establishment, except such property as is hereinafter provided; Cessation of Boards powers as to such property.-and the powers and responsibilities of the Board of Revenue, and the local agents, in respect to such mosque, temple or other religious establishment, and to all land and other property so transferred, except as regards acts done and liabilities incurred by the said Board of Revenue or any local agent, previous to such transfer, shall cease and determine”. But the list of properties was not handed over, the Temple had been crying hoarse but of no avail. 56. From 1863 to 1883, the Temple committee was managing the Temple and its properties as could be seen from Exhibits A.28 to A.41 and the newly marked documents Exhibits A.46 to A.55. Ex. A.28 dated 21.10.1868 is a letter from the Manager of the Temple to Sekharam Sivarama Pillai to take necessary steps to guard the honey combs in Vellimalai Kombai Valaikevi, Vannanparai and Bonikallu etc., hills and to get the records relating to this secured by Sthanikar Narayana Battar and others from the Devasthanam archives. The letter further requires Sivarama Pillai to fence the gooseberry and the jack trees which are ready to yield. Ex. The letter further requires Sivarama Pillai to fence the gooseberry and the jack trees which are ready to yield. Ex. A.35 is a letter dated 20.5.1868 with regard to lease of coconut groves belonging to the Temple. Ex. A.36 dated 25.6.1868 is a letter from the Manager of the Temple to the Tahsildar of the Devasthanam in respect of lease of coconut groves. Ex. A.40 dated 16.12.1866 is a letter from Temple Tahsildar to the Manager of the Temple. It makes interesting reading. We extract below the letter which is in vernacular. Tamil It is seen that the request of the Tahsildar to do certain repair work to restore water supply from Nupura Gangai and Narayana Nair Theppakulam, which had been badly affected by reason of the burning out of mountain grass resulting in formation of sand mounds blocking the flow is rejected by the Temple Manager. Ex. A.41 is a letter from the Ameena of the Temple to Narayanasami Naicker a servant of the Temple to collect the lease dues from one Kothamalayarii in respect of the Mysore Endowment coconut grove. Ex. A.30 is a Kararnama by one Ramasamy in respect of honey combs in the Alagar Hills belonging to the Temple. Ex. A.31 dated 19.7.1873, Ex. A.32 dated 18.10.1873 and Ex. A.33 dated 12.11.1879 are Kararnamas by different persons in favour of the Temple in respect of the usufructs from the Alagar Hills. Ex. A.46 dated 18.7.1873 is a letter from Ramasamy Pillai to the Manager of the suit temple in respect of lease for collecting honey from the Azhagar Hills belonging to the Temple. Ex. A.47 dated 4.10.1873 is in respect of lease of the outlayer of roots of Vembatti trees. Ex. A.48 dated 25.11.1874 is in respect of lease arrears for Mysore Endowment coconut grove. Ex. A.49 dated 30.11.1874 relates to non payment of lease in respect of some usufructs. Ex. A.50 dated 31.12.1874 is in respect of honey combs belonging to the Temple. Ex. A.51 is also in respect of honey combs in Alagar Hills belonging to the Temple. Ex. A.52 dated 8.10.1875 is for public torn torn in respect of lease rights for honey combs in the suit temple. Under Ex. A.53 dated 10.10.1875 the servant who made the torn torn reports to the Temple authorities. Exd. A. 54 dated 13.10.1875 relates to the same event. Ex. Ex. A.52 dated 8.10.1875 is for public torn torn in respect of lease rights for honey combs in the suit temple. Under Ex. A.53 dated 10.10.1875 the servant who made the torn torn reports to the Temple authorities. Exd. A. 54 dated 13.10.1875 relates to the same event. Ex. A.55 dated 25.6.1880 is in respect of coconut grove under Mysore Endowment. This exhausts the list of documents for the period 1863 to 1883. Almost all the documents recite that Alagar Hills belong to the suit temple and make it abundantly clear that the Temple had been exercising rights of ownership in respect of the Hills and the usufructs thereon. 57. Thus Tirumala Naicker had endowed lands to various temples. Chanda Sahib and others intermeddled. Then Collector Hurdis entered the scene and made an earnest attempt to salvage the position. Regulation VII of 1817 came to be promulgated. The Board of Revenue took over the management till 1863. From 1863 to 1883, the Temple Committee constituted by the Government was in management. Then the vicious thing happened. Notification under the Forest Act came to be issued. 58. We will now turn our attention to the notification under Section 25 of the Tamil Nadu Forest Act, 1883 In paragraph 24 of the plaint it is pleaded as follows:— “But subsequently in the year 1890 the Government declared the Alagar Hills, the schedule mentioned properties as reserve forest as per the provisions of Section 25 of the Forest Act. As per the provisions of Section 25 of the Forest Act, only ‘forests at the disposal of the Government’ alone can be declared as reserve forests. The Government having come to possession of the hills in order to manage the same as per the provisions of Regulation VII of 1817 wrongly considered that the schedule mentioned property does not belong to the Temple”. 59. The first defendant in the written statement in paragraph 14 met the averments in para 24 of the plaint as follows:— “14. The allegations in paras 24 and 25 are absolutely incorrect. The entire Alagar Hills belong only to the Governemnt. The Nedu Hill and Chembuki Hill adjacent to Alagar Hills also belong to the Governemnt. All the above said three hills have been classified as ‘Reserve Forests’. The entire Range of Hills vest with the Forest Department as per Government notification No. 187 dated 11.10.1883 published in Fort St. The entire Alagar Hills belong only to the Governemnt. The Nedu Hill and Chembuki Hill adjacent to Alagar Hills also belong to the Governemnt. All the above said three hills have been classified as ‘Reserve Forests’. The entire Range of Hills vest with the Forest Department as per Government notification No. 187 dated 11.10.1883 published in Fort St. George Gazette. The notification has been made in accordance with rules and regulations. The suit was declared as R.F since it was a forest at the disposal of the Government. The entire range of Alagar Hills is adorned by thick foliage and grooves of fruit bearing and shadowed trees, and it was actually a forest at the disposal of the Government. The suit property was never in occupation of any one, much less the plaintiff temple. Hence it is false to allege to in para 25 that the plaintiff temple had been exercising right of possession and enjoyment of the suit property even at the time of the East India Company assumed governance over the territory and continued to exercise control. It is also false to state that the Government was exercising acts of possession and control, it was only as trustee of Manager of the Temples per the provisions of Regulation VII of 1887”. 60. The learned counsel for respondents 1 and 2 raised an objection that in paragraph 27 of the plaint it has been pleaded that the order of the Government declaring Alagar Hills as reserve forest is wrong, illegal and ultravires and therefore, without a prayer for declaration regarding the Government order, the suit for mere recovery of possession is not maintainable. Counsel also submitted that objection under Section 25 of the Tamil Nadu Forest Act (hereinafter referred to as ‘the Act’) had not been rai sed in the pleadings. The extract above of paragraph 24 of the plaint answers this objection clearly. If we find that the provisions of the Act had not been followed as required, then the order would be void ab initio and no declaration need be sought for. 61. Let us examine the position with reference to the provisions of the Act. 62. The extract above of paragraph 24 of the plaint answers this objection clearly. If we find that the provisions of the Act had not been followed as required, then the order would be void ab initio and no declaration need be sought for. 61. Let us examine the position with reference to the provisions of the Act. 62. Section 25 runs as follows:— “The Government may, by notification in the Official Gazette declare any forest which has been reserved by order of the Government previous to the day on which this Act comes into force to be a reserved forest under this Act; Provided that if the rights of the Government or of private persons to or over any land or forest produce in such forest have not been inquired into, settled and recorded in a manner which the Government thinks sufficient, the same shall be inquired into, settled and recorded in the manner provided by this Act for reserved forests, before the date on which the notification declaring the forest to be reserved takes effect. All questions decided, orders issued and records prepared in connection with the reservation of such forest shall be deemed to have been decided, issued and prepared hereunder, and the provisions of this Act relating to reserved forest shall apply to such forests”. The Section contemplates that there should be a previous order reserving any forest before it is declared by notification as a reserve forest. As rightly pointed out on behalf of the appellants, no order of such reservation has been produced in the present case. Learned counsel for respondents 1 and 2 contended that in view of the proviso it should be held that the Government was satisfied that the rights of the Government or of private persons had been inquired into, settled and recorded in a satisfactory manner. This contention overlooks that there was a further notification issued under Section 4 of the Act as could be seen from Ex. B.6 filed in the other suit. The learned Judge, who tried that suit has adverted to this in paragraph 15 of his judgment. In page 5 of Ex. B.6, this is what is found-XXI Madura Madura and Melur Alagarmalai North:— Cultivated lands of Melur Taluk. East: do. South: do. West: do. Melur Taluk. B.6 filed in the other suit. The learned Judge, who tried that suit has adverted to this in paragraph 15 of his judgment. In page 5 of Ex. B.6, this is what is found-XXI Madura Madura and Melur Alagarmalai North:— Cultivated lands of Melur Taluk. East: do. South: do. West: do. Melur Taluk. In page 9, it is stated as follows:— “No. 189- His Excellency the Governor in Council is pleased to notify, under Section 4 of the Madras Forest Act (Act No. V of 1882) that it is proposed to constitute the following area in the Madurai District a “Reserve Forest” under the said Act”. In page 11 it is stated as follows:— “His Excellency the Governor in Council further appoints Mr. F.R. Rabinson, Assistant Collector to be Forest Settlement Officer and the District Forest Officer of Madura for the time being to attend at the inquiry prescribed by Chapter II under Section 4. His Excellency the Governor in Council further appoints the Collector of the District for the time being to hear appeals under Section 14”. 63. There is thus substance in the contention on behalf of the appellants that the Government was not satisfied with Section 25 notification and that was why the notification was issued under Section 4. Respondents 1 and 2 have not produced any material to show that any order as contemplated under Section 10 was passed. Merely on the basis of Ex. B.6, it cannot be assumed that anything in furtherance of Section 4 was done as contemplated under Section 6 and whether any enquiry as per Section 8 was conducted. In the absence of any supporting material, it cannot be held that the mandatory requirements under the various provisions of the Act had been complied with. It is well established that statutory mandate in an expropriating statute, must be strictly observed and its observance is a condition precedent to the whole jurisdiction conferred. 64. In Sri Perarulala Ramanuja Jeer Swami v. The Secretary of State for India in Council through the Collector of Tinnevelly ((1910) VI Indian Cases 691) a Division Bench of this Court has held that where a claim was not raised and decided, Section 25 of the Forest Act does not apply, and Sections 6 and 17 do not extinguish a right merely because it was not claimed at an enquiry by the Forest Committee. It has been further held that where the evidence showed that the lands in suit had been attached to the Temple, then it was for the opposite poarty to show that the Temple had not acquired ownership.; That was also a case where the forest in question was reserved under Section 25 of that Act as one which had been reserved by order of Government previous to the day on which the Act came into force. Before the Act came into force, the forests were visited by a Committee, who took evidence on claims to various rights within the area which it was proposed to reserve and reported their opinion upon them to the Board of Revenue and the Government. At this enquiry, claims were made on behalf of the institution the plaintiff in the suit and the appellant before this Court - a claim of a right to cut firewood free within the whole Tirukarangudi forest and a claim of a right to free enjoyment for temple purposes of the forest at Nambikovil and for two miles westward. These claims were not the subject matter of the suit; on the contrary ownership in the forest itself was claimed in the suit. There was no enquiry into this claim by the Committee nor was there any settlement or record of any such claim. The Government Order marked in the suit also did not refer to any such claim. In such circumstances, the Bench held that it was not a question decided under Section 25 and that Sections 6 and 17 were not applicable that Section 25 refers only to questions which have been decided orders which have been issued or records which have been prepared and has no application to a claim which has never been made. 65. In Mysore Balakrishna Rao v. The Secretary of State for India in Council ((1915) XXIX M.L.J. 276) another Division Bench of this Court, has in a case, where the Forest Settlement Officer failed to give plaintiff owner of the adjoining land the notice prescribed by Section 6 of the Tamil Nadu Forest Act and the final notification under Section 16 was made declaring the land reserved land, held that the proceedings of the Settlement Officer were without jurisdiction and could not affect plaintiffs right of action under the general law. It has been further held that the irregularity was not cured by the plaintiff coming to know of the proceedings before the final proclamation and his failure to object. 66. Though the learned Judge who tried O.S. 178/1982 has adverted to this, he has not given a finding in this regard. The learned Judge who decided O.S. 171/1987 has misconstrued the provisions of Section 25 and assumed without any basis that the Government was satisfied and that the notification had reached finality. The finding in O.S. 171/1987 cannot therefore, be sustained. The notification purported to have been given under Section 25 of the Tamil Nadu Forest Act has therefore to be held to be illegal and void. We accordingly hold so. 67. Ms. Selvi George relied on the following paragraph in decision of the Supreme Court in T.N. Godavarman Thirumulpad v. Union of India and others (1997 2 S.C.C. 267)- “4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and formatters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word “forest” must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term “forest land”, occurring in Section 2, will not only include “forest” as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works v. State of Jugarat ( (1987) 1 SCC 213 , Rural Litigation and Entitlement Kendra v. State of U.P. (1989 Supp (1) SCC 504) and recently in the order dated 29.11.1996 ( Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority - WP (c) No. 749 of 1995 decided on 29.11.1996). The earlier decision of this Court in State of Bihar v. Banshi Ram Modi ( (1985) 3 SCC 643 ) has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this Court. It is reasonable to assume th at any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay”. and contended that willy nilly the suit hills have been declared to be Reserve Forest and there can therefore be no going back. We do not agree. When the very procedure adopted is questioned as illegal and void, it is highly illogical to contend that it is a fait accompli and therefore, it cannot be set at naught. 68. Counsel also relied on an interim order passed by the Supreme Court in Writ Petition (Civil) No. 202/1995 on 7.5.1999. We fail to see the relevance of the orders to the facts on hand. 69. The learned counsel then cited the decisions reported in Siddik Mahomed Shah v. Mt. Saran and others (A.I.R. 1930 Privy Council 57(1) and Kalyanpur Lime Works Ltd. v. State of Bihar and another (A.I.R. 1954 S.C. 165) and submitted that no evidence could be looked into for a plea not raised. The principle as far as it goes is beyond contention. But counsel was unable to point out as to what plea had not been raised for which the Court had been asked to look into evidence. Counsel referred to the decision in S.S. Yelmeli v. Chanabasappa Basappa Warad (A.I.R. 1979 Karnataka 52), wherein it has been held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Here also, we do not find that the appellants are attempting to travel outside the pleadings. 70. Here also, we do not find that the appellants are attempting to travel outside the pleadings. 70. The next question relates to limitation.- whether the appellants can invoke the provisions of Section 10 of the Limitation Act claiming the Government to be a trustee. We have already held that the defendants have kept back material documents notwithstanding the plaintiff calling upon them time and again to produce them. From Nelsons Manual of Madura Country, we have been able to see that Tirumala Naicker endowed large extents of properties to various temples including the suit temple. Over a period of time there was confusion and anarchy. Between 1801 and 1817, Mr. Hurdis, the first Collector of the Madura Country took charge of the administration of the District as also management of the suit temple. This position continued till 1817 when Regulation VII came to be promulgated and the Board of Revenue took over the adminstration till 1863 when the Temple was handed over to the Temple Committee under Act XX of 1863. 71. In 1883, the notification under Section 25 of the Forest Act is issued. We have dealt with the validity of the proceedings under the Forest Act elsewhere in this judgment. In our view, there can be least doubt that during the relevant period, viz., 1817 to 1863, the government had been a trustee in respect of the properties belonging to the plaintiff temple. Time and again, the Government had been expressing a desire to hand back the properties to the respective pagodas. 72. In Srinivasamurthy v. Venkata Varada Iyengar and others (21 M.L.J. 669 = 34 Madras 257 (Privy Council) it has been held that no person who has accepted the position of trustee and has acquired property in that capacity can be permitted to assert an adverse title on his own behalf until he has obtained a proper discharge from the trust with which he has clothed himself. 73. In Pachiappa Chetti v. Sivakami Ammal ( (1925) 49 M.L.J. 468 =23 L.W. 91), the facts were as follows:— “Plaintiff was the daughter of one P who, with his brother, formed an undivided family. They carried on money lending dealings and entrusted their dealings to their brother-in-law, S, the father of the defendants continued those dealings for some time and maintained accounts for the moneys in his hands. They carried on money lending dealings and entrusted their dealings to their brother-in-law, S, the father of the defendants continued those dealings for some time and maintained accounts for the moneys in his hands. In 1906 Ps brother divided off from him and removed his share of the property from the hands of S who, however, continued to deal with the property of P until the latters death in February, 1912, and e ven after that date remained in possession of all his property. Shortly before his death, P directed S to hold his property for the benefit of his wife and daughter (the plaintiff). S agreed to it and just before his death told his son, the defendant, to continue the arrangement and pay the ladies the moneys of P when wanted. At the time of his death S also informed the plaintiff and her mother that his son would continue to hold the property on their behalf. The bulk of the property originally entrusted to S was presumably money, and possibly promissory notes and bonds; there was no evidence that at that time any mortgages or immoveable property existed. The evidence showed that Ps friends were subsequently lent out by S on bonds and mortgages taken either in his own name or in the name of the defendant. The plaintiff, alleging that all the properties of her father were vested in S, and, after him, in his son, the defendant, in trust for her, sued the defendant for an account. The defendant, admitting that the properties vested in him, contended that they vested in him absolutely and that the plaintiff had no interest therein, and that the suit was barred by limitation. The contention of the defendant was found against, and that finding was not disputed in appeal. It was held, (1) that, in view of the pleadings and the course of trial in the court below it was not open to the defendant to plead that the plaintiff had not proved an effective transfer of the properties: (2) and that Section 10 of the Limitation Act applied to the case and the suit was not barred. The properties were originally vested in S in trust for a specific purpose, the trust being at the time one for the benefit of P himself. The properties were originally vested in S in trust for a specific purpose, the trust being at the time one for the benefit of P himself. There were no mortgages of immoveable property at that time, and therefore, no registered instrument of transfer was necessary, and the property would vest in S by the mere transfer of possession coupled with the intention of the parties that such delivery of possession should vest the property in S. On the conversion by S of the moneys and bonds into mortgages, such mortgages vested in him for the same purpose. The subsequent direction by P that the property should be held for the benefit of his wife and daughter was merely an alteration of the purpose of the trust. In both cases, the property was held for a specific purpose and an express trust, within the meaning of Section 10 was undoubtedly created”. 74. In the present case merely because by an invalid notification, the Government purported to convert the Temple property into Reserve Forest, the Government will not cease to be a trustee or that the property shall cease to be held for the benefit of the Temple. 75. In Hafiz Mohammed Fateh Nasib v. Sir Swarup chand Hakum Chand , a firm and another (1948 2 M.L.J. 70 (Privy Council= (1948) 61 L.W. 443 ), it has been held that a trustee entering into possession of property belonging to the trust cannot, whilst remaining a trusted, change the character of possession arid assert that he is in possession as a beneficial owner. 76. In Venkatarama Naidu and Another v. Jay ammal and Another (A.I.R. 1963 Madras 353 (D.B)= (1963) 76 L.W. 619 , it has been held that a person in such possession which had its foundation in a fiduciary obligation without discharge of it by redelivery to the trust or its representative, cannot plead that it is for that representative to show that, within 12 years of his suit he was in possession. 77. 77. In S.R. Varadarajulu Naidu v. Papanasam Labour Union and others (A.I.R. 1969 Madras 401=0968) 81 L.W. 630, dealing with Section 10, it has been held as follows:— “The specific purpose, under Section 10 Limitation Act, 1908, must be a purpose that is either actually and specifically defined in the terms of the will or the settlement itself, or a purpose which, from the specified terms, can be certainly affirmed. So long as the purpose specifically appears in writing, that will satisfy the requirement of Section 10. It is not necessary that the purpose should only find an express mention in a formal document. A further requisite of Section 10 is that the property should have become vested in the trustee for any specific purpose. Vesting in the context means that the trustee has absolute control over the trust property. It may also imply that the trustee as such is the legal owner of the property which he has to apply for purposes of the trust”. 78. In Uppalapati Venkataratnam v. Sri Chennakesavaswami Temple, Uppalapadu, represented by its Executive Officer, P. Suryanarayana ” (1971 2 An. W.R,. 383), it has been held as follows:— “A trustee by being merely removed from the Office of trusteeship, is not discharged of his obligations towards the Trust. When as a trustee, he was in possession of the Temple property, his fiduciary capacity as that of a Trustee could be discharged only by handing over possession of the Trust property to the successor trustee. The defendant-appellant has not obtained such discharge. His possession even after the removal would be in the fiduciary capacity of a defacto trustee. Therefore, his possession would still be the possession of the Temple. Therefore, neither the question of temple being out of possession, nor of the defendant, an extrustee, being in adverse possession arises”. 79. As pointed out by the Supreme Court in Sri Varadaraja Perumal Temple v. K. Ramachandra (dead) by L.Rs. And others (1996 1 Law Weekly 69), the spirit and purpose behind Section 10 of the Limitation Act reflect the public policy to protect trust properties. 80. In the present case, the Government was the trustee in management for the period 1801 to 1863. From 1863 to 1883, it was the Temple committee constituted under Act XX of 1863 by the Government. 80. In the present case, the Government was the trustee in management for the period 1801 to 1863. From 1863 to 1883, it was the Temple committee constituted under Act XX of 1863 by the Government. The Government did not hand over the list of properties belonging to the Temple to the Temple committee. By purporting to act under Section 25 of the Forest Act, the Government betrayed the trust reposed in it. Section 10 of the Limitation Act will definitely apply. The suit is not barred by limitation. The finding contra by the trial court is erroneous and cannot be sustained. It is vacated. The lower court has found fault with the plaintiff for not producing documents of title. The material documents are with the defendants. They do not say that they do not have them. What they say is they are not able to trace them. In such circumstances, the learned Senior Counsel submitted that lost grant is to be presumed. Counsel relied on Nagrentha Mudaliar v. Sami Pillai and Another (A.I.R. 1936 Madras 682=44 L.W. 139 = ILR 59 Madras 979) wherein it has been laid down that “to infer a doctrine of lost grant or a claim based on prescription all that is necessary to be alleged is long continual and peaceful possession. Where these incidents are found the Court will if possible presume a grant of the right in question”. There can hardly be any doubt that either the Temple had been in long, continual possession or the Government had been in possession as trustee on behalf of the Temple. This is a case of lost grant, the Temple had been exercising acts of ownership over the suit hills for several centuries. 81. From 1883 till the filing of the suits, the Temple had been addressing letters to the Government and the Forest Department for permission to do this or that in respect of the suit hills. In our view, this cannot be put against the Temple. It was done in ignorance of its rights and a trustee cannot take advantage of a situation like this. Memorials had also been sent to the powers that be for restoration of its property. 82. We have adequate materials in the present case to hold that the suit hills belong to the Temple. The Government was a trustee in possession on behalf of the Temple. Memorials had also been sent to the powers that be for restoration of its property. 82. We have adequate materials in the present case to hold that the suit hills belong to the Temple. The Government was a trustee in possession on behalf of the Temple. The notification under Section 25 of the Tamil Nadu Forest Act is non est and void. The conclusion reached contra by the Court below in both the suits cannot be sustained. 83. When once it is held that the proceedings purported to have been taken under the Forest Act are void, the ownership in the suit temple of the suit hills will revive; the lands hitherto treated as Reserve Forest will cease to be so and revert to the plaintiff temple administered by the Government through one of its wings viz., H.R. & C.E. Department and will henceforth be managed by the plaintiff temple through its Executive Officer acting to the dictates of the H.R. & C.E. Department. In effect the management changes hands from one Department to another Department of the same Government. The judgment and the decree, dismissing the suit O.S. No. 171 of 1987 are set aside. The suit shall stand decreed as prayed for. No costs. 84. The other suit apart from seeking declaration off the suit hills as belonging to Azhagar Koil, wants recovery of possession of the entire hills including the 3 acres of land ordered to be assigned to the Executive Officer of Sri Arul Mighu Murugan Temple. While declaring the title as prayed for, we direct that it is upto the H.R. & C.E. Department to maintain the assignment in favour of the other temple by passing suitable orders as per law. Both the appeals are allowed as indicated above. There will be no order as to costs. Consequently, C.M.P. Nos. 7097 and 12082 of 1989 are closed.