JUDGMENT S. SRIMATHY, J. Both the appeals are arising out of the common judgment passed in the Appeal Suit and Cross Objection hence both the appeals are taken up together and a common judgment is passed. 2.i. The second appeal in S.A.(MD)No. 83 of 2017 is filed by the plaintiff / Temple against the Judgment and Decree dated 18.11.2013 passed in A.S.No.39 of 2012 on the file of the Principal Sub Court, Karur, reversing the Judgment and Decree dated 09.12.2011 passed in O.S.No.69 of 2008 on the file of the Principal District Munsif Court, Karur. 2.ii. The second appeal in S.A.(MD)No. 84 of 2017 is filed by the plaintiff /temple against the Judgment and Decree dated 18.11.2013 passed in Cross Appeal No.39 of 2012 on the file of the Principal Sub Court, Karur, partly confirming the Judgment and Decree dated 09.12.2011 passed in O.S.No.69 of 2008 on the file of the Principal District Munsif Court, Karur. 3. The plaintiff / temple in the suit is the appellant herein and the defendants in the suit are the respondents herein. For the sake of convenience, the parties are referred as plaintiff and defendants as per the ranking stated in the suit. 4. The suit is filed to declare the temple as an absolute owner of the suit property and consequently, direct the defendants to deliver the possession of the suit property to the plaintiff failing which the plaintiff may be permitted to execute the decree and recover possession and also direct the defendants to pay mesne profits. 5. The brief facts stated by the plaintiff temple is that the suit properties are situated at Punjaithottakuruchi Village and is unenfrachaised Devadayam land dedicated to the plaintiff temple by the ancient rulers for proper administration of Thirumanjanam to the temple and the said dedication had been intended to the person who renders service of Thirumanjanam to the temple. As long as the service is rendered, the said person would be permitted to enjoy the suit property but without any right of alienation or create any encumbrance. To substantiate this, the photocopy of Inam Fair Register with Title Deed No.940 was produced and marked as Ex.A2. Under Minor Inam Abolition Act 30 of 1963, the Government issued patta in favour of defendants without due enquiry with the plaintiff temple. To substantiate this, the photocopy of Inam Fair Register with Title Deed No.940 was produced and marked as Ex.A2. Under Minor Inam Abolition Act 30 of 1963, the Government issued patta in favour of defendants without due enquiry with the plaintiff temple. The defendants with able assistance of Village Munsif and Karnam managed to get patta in their name by misrepresenting the facts before the Settlement Tahsildar. The Settlement Tahsildar has not issued any notice to the temple and the alleged enquiry has not been intimated to the temple authorities. If notice had been issued, the Settlement Tahsildar would not have decided to issue patta in favour of the defendants. Hence the enquiry is arbitrary and is not binding on the plaintiff temple. The suit property is a dry land and taking advantage of the situation, the defendants misrepresented the facts and obtained patta. The documents produced by the defendants has no concern to the suit property. The temple is the absolute owner of the property and no other person can create any encumbrance. The Settlement Tahsildar failed to consider the directive rules of the Settlement Act 30 of 1963. Now, the defendants are enjoying the land without rendering any service to the temple. The service of Thirumanjanam is now being rendered by salaried persons and the present service doer is receiving remuneration but not enjoying the suit property. Hence, the possession of the suit property by the defendants is illegal and the defendants are the deemed trespassers and they have not obtained any permission from the temple to enjoy the same. The Government appointed Special Officer and found certain encroachment made by the defendants and advised the temple authorities to take legal action to recover the possession from the encroachers. Then, it came to the knowledge of the plaintiff temple that the defendants had encroached the suit property unlawfully on 24.08.2004. The plaintiff had persuaded the defendants to surrender possession, but the defendants failed to do so. Further the defendants attempted to cast cloud over the title over the suit property. Hence, the suit was filed by the temple for declaration and to evict the defendants and recover possession. 6. The 1 st defendant had filed written statement denying the averments stated in the plaint. Further the defendants attempted to cast cloud over the title over the suit property. Hence, the suit was filed by the temple for declaration and to evict the defendants and recover possession. 6. The 1 st defendant had filed written statement denying the averments stated in the plaint. The property unenfranchised devathayam land dedicated for Thirumanjanam service and the service doer was allowed to enjoy the property without right to encumber is denied as false. And denied all the averments stated in the plaint. The defendants submitted that the property situated in S.F.No.72 admeasuring 4 acres 11 cents and S.F.No.73 3 acres 71 cents of Punjaithottakuruchi village originally belonged to one Lakshmikantha Rao and his ancestors. The sons of Lakshmikantha Rao namely, Subba Rao and Gopal Rao inherited the property from their father. The sons had entered into registered partition deed, dated 18.12.1946 wherein the southern half 2 acres 05½ cents out of 4 acres 11 cents in S.F.No.72 and northern half in 1 acre 85½ cents out of 3 acre 71 cents in S.F.No.73 were allotted to L.Subba Rao and he was in possession and enjoyment till 25.06.1964. On 25.06.1964, the said Subba Rao along with his wife Devaki Ammal, their major son Rajagopal @ S.Lakshmikantha Rao and their minor sons Krishnamoorty and Sekaran represented by their father Subba Rao, sold the property to the defendants through registered sale deed dated 25.06.1964 marked as Ex.B2. Likewise, the said Gopal Rao was entitled to 28 3/6 th cents and 1 acre and 8½ cents out of 4 acres 11 cents in S.F.No.72 and 1 acre 23 cents in S.F.No.73. The said Gopal Rao along with his wife Saraswathi Ammal and their son Narasimhan and their minor sons Muralidharan and Ravichandran represented by father Gopal Rao had sold the property to the 1 st defendant as extent of 28 3/6 th cents, then an extent of 1 acre and 8½ cents out of 4 acres 11 cents in S.F.No.72 and 1 acre 23 cents in S.F.No.73 was sold to the 1 st defendant’s brother Sadayappan / 2 nd defendant through sale deeds, dated 15.11.1967 marked as Ex.A3 and 4. The 1 st defendant and 2 nd defendant had executed registered Exchange Deed, dated 05.06.1996 thereby the 2 nd defendant Sadaiappan was entitled to 1 acre 48 cents in S.F.No.72. The 1 st defendant and 2 nd defendant had executed registered Exchange Deed, dated 05.06.1996 thereby the 2 nd defendant Sadaiappan was entitled to 1 acre 48 cents in S.F.No.72. Then the 1 st defendant had entered registered Exchange Deed with the 2 nd defendant’s wife with respect to 94 cents in S.F.No.72. On the same day, another registered Exchange Deed with regard to 69 cents in S.F.No.72 and 2 acres 71 cents in S.F.No.73 was executed by the 1 st defendant and the 2 nd defendant’s son S.Palanisamy. Based on the same, the defendant's brother Sadayappan, his wife Thangammal and his son Palanisamy have become absolutely entitled to 3 acres 12 1/1 cents out of 4 acres 11 cents in S.F.No.72 and 3 acres 8 ½ cents out of 3 acres 71 cents in SF No.73 and they are in possession and enjoyment of suit properties. The said L.Subba Rao and L.Gopal Rao had sold the remaining 69 cents out of 4 acres 11 cents in S.F.No.72 and 63 cents ought of 3 acres 71 cents in S.F.No.73 to one S.Ramasamy Gounder son of Selllappa Gounder and in turn they he has sold the same to the 2 nd defendant Sadayappan. Thereby the said Sadayappan, his wife Thangammal and son S.Palanisamy had become absolutely entitled to 4 acres 11 cents in S.F.No.72 and 3 acres 71 cents in S.F.No.73 and was paying kist etc. The defendants further stated that an enquiry was conducted by the Settlement Tahsildar as per Act 30/1963 after issuing notice to the plaintiff temple, the 1 st defendant, the defendant's brother Sadayappan and the said Ramasamy Gounder son of Sellappa Gounder and also to L.Gopal Rao and others. In the enquiry proceedings, the 1 st defendant had appeared and produced all the documents, especially the sale deeds and exchange deeds were produced and marked before the Settlement Tahsildar. The said Gopal Rao and the Village Karnan had corroborated the evidence of the defendants before the Settlement Tahsildar. After due consideration of the evidence the Settlement Tahsildar had passed order dated 31.03.1967 granting ryotwari patta in favour of the 1 st defendant, his minor daughter Padmavathy, L.Gopal Rao and S.Ramasamy Gounder and thereafter, the defendants were in possession and enjoyment of the property. After due consideration of the evidence the Settlement Tahsildar had passed order dated 31.03.1967 granting ryotwari patta in favour of the 1 st defendant, his minor daughter Padmavathy, L.Gopal Rao and S.Ramasamy Gounder and thereafter, the defendants were in possession and enjoyment of the property. The temple authorities had also appeared before the Settlement Tahsildar for enquiry and the Settlement Tahsildar had considered the facts and circumstances, by considering the long, continuous possession and enjoyment of the predecessors-in-title of the defendants the patta was issued by the Settlement Tahsildar. The plaintiff temple is fully aware of the proceedings of the Settlement Tahsildar and has not preferred any appeal against the said order, hence the order passed by the Settlement Tahsildar had attained finality. Further under the updating patta scheme the defendants were also granted patta and the same is marked as Ex.B9,10,11,12 and 16. Further the defendants and their predecessors-in-title are continuously and uninterruptedly established their title by way of adverse possession. Assuming for a moment but not conceding that the plaintiff has got any right over the property, the same has been lost by non-enjoyment of the property for more than the statutory period and the plaintiff is not entitled to claim any possession or whatsoever over the suit property. Infact on and from the date of sale the defendants have been in exclusive possession and enjoyment of the suit property by paying kist for the same. There are unassailable documentary evidence to prove that the defendants were in possession and enjoyment of the property for 100 years and the defendants are unnecessary parties to the suit. The plaintiff has not preferred any appeal against the Settlement Tahsildar's order and the plaint is not maintainable under Order 2 Rule 2 of CPC and there is no cause of action. Therefore, defendants prayed to dismiss the suit. 7. The Trial Court had marked Ex.A1 to Ex.A6 and heard PW1 on the side of plaintiffs and Ex.B1 to Ex.B17 and heard DW 1 on the side of the defendants and after hearing the rival contentions, the suit was partly decreed granting the relief of declaration and directing the plaintiff temple to pay the upliftment charges to the defendants before the recovery of property and the time for delivery of possession was fixed as 6 months. With regard to mesne profits, the same was relegated to separate proceedings. With regard to mesne profits, the same was relegated to separate proceedings. Aggrieved over the same, the defendants preferred Appeal Suit and the temple had preferred a cross appeal. The Appellate Court had allowed the Appeal Suit filed by the defendants and set aside the judgment and decree passed by the Trial Court and the suit was dismissed. Since the suit was dismissed, the Cross Appeal filed by the temple was dismissed. Aggrieved over the same, the present second appeals are preferred. 8. The second appeals were admitted on the following substantial questions of law: (a) Whether the dismissal of the Cross Appeal by the Appellate Court without any finding whatsoever and whether the approach of the Appellate Court in this regard is not against the mandatory procedure envisaged under Order 41 of C.P.C? (b) Whether the Appellate Court is justified in law in dismissing the suit in toto reversing the Judgment and Decree of the Trial Court? (c) Whether the failure of the lower Appellate Court to correct the mistake committed by the Trial Court in granting upliftment charges in favour of the defendants in the absence of any pleading or the payment of any Court fee? Is not perverse calling for interference by this Court? 9. Thereafter, the Court had framed the following additional substantial questions of law on 06.04.2023: (d) Whether the complete inadvertence of the Lower Appellate Court to the nature and extent of grant as mentioned in Ex.A2 Inam Fair Register is not perverse and is not the entries contained in the Inam Fair Register entitled to great weight and consideration in determining the nature of grant? (e) When admittedly the suit property is Devadayam land dedicated to the plaintiff temple for the proper administration of "Thirumanjanam" service to the temple, whether the defendants who are the subsequent purchasers of the suit properties can claim title under Ex.B8, the order of the Settlement Tahsildar? (f) Whether the Lower Appellate Court is justified in law in relying upon the order of the Settlement Tahsildar under Ex.B8 to hold the title in favour of the defendants overlooking the settled principles of law that jurisdiction of the Civil Court to entertain the suit for declaration and injunction is not barred by reason of the grant of patta under the Act? (g) Whether the inadvertence of the Lower Appellate Court to column 10 of the Inam Fair Register which says the grant is permanent, which signifies the said grant is in favour of the temple and the finding of the Lower Appellate Court that the plaintiff had failed to establish that the grant in favour of the temple is not perverse? (h) When as per Section 44 of the Act 30 of 1963 there is a presumption that both warams are in favour of the temple unless the contrary is proved, whether the Lower Appellate Court is justified in law in holding that the order of the Settlement Tahsildar under Ex.B8 is unassailable?” 10. The first substantial question of law is that if any cross appeal is preferred by the aggrieved party, the same ought to be considered separately. Under Order 41 Rule 22 and sub rule 2, 3 and 4 states that the cross appeal shall be filed as per Rule 1. Rule 1 states that the cross appeal shall be filed by raising grounds of objection. When the aggrieved party had filed Appeal Suit, the other person who is also aggrieved by that portion of the judgement is entitled to file Appeal Suit, but instead of filing separate Appeal Suit he may file cross appeal, which means it has to be considered separate appeal. In other words, the object of the filing cross appeal is that when one of the aggrieved parties had already filed an appeal, the other aggrieved party in the same case instead of filing independent appeal he can file cross appeal. In such circumstances the cross appeal ought to be considered as separate appeal. In the present case, the Appellate Court has discussed the issue based on the Appeal Suit filed by the defendants and has subsequently, dismissed the Cross Appeal without any discussion. The cross appeal ought to be considered as an independent appeal and points of consideration ought to be formulated based on the grounds raised in the cross appeal. But the Appellate Court had not even discussed about the cross appeal and the grounds raised thereunder. The Appellate Court simply states since the appeal filed by the defendants are allowed and the cross appeal is dismissed and it is not necessary to consider the cross appeal. But the Appellate Court had not even discussed about the cross appeal and the grounds raised thereunder. The Appellate Court simply states since the appeal filed by the defendants are allowed and the cross appeal is dismissed and it is not necessary to consider the cross appeal. The Appellate Court failed to take the cross appeal as independent appeal, thereby gross injustice is committed. Therefore, the substantial questions of law (a) and (b) are held in favour of the plaintiff / appellant herein. 11. As far the substantial question of law (c) is concerned, the Trial Court has granted upliftment charges in favour of the defendants. The contention of the plaintiff temple is that there is no pleading for granting the relief of payment of upliftment charges by the defendants. When there is no pleading, the Courts cannot grant any relief. Further the courts can consider the plea only based on evidence. When the defendants had not submitted any evidence, then the payment of upliftment charges is without any evidence. Further the defendants cannot produce any evidence without pleading. It is seen that the defendants had not paid any court fees for the said relief. Hence from any angle the payment of upliftment charges is erroneous. But the Trial Court has taken into consideration the long possession of the defendants and has granted the upliftment charges. But for long possession, granting for upliftment charges is illegal, since the same would amount to legalize the possession of the defendants and hence the same cannot be granted. 12. Also it is seen that the Trial Court has granted upliftment charges and has also given liberty to proceed as per law to collect the mesne profits claimed by the plaintiff temple. The defendants were under the impression that the erstwhile vendor namely, Subba Rao and Gopal Rao were the owners of the properties and had purchased the property, after paying sale consideration and they have put up constructions and were enjoying the said property. But if the land belongs to the temple, then it has to be considered that the defendants were using temple land and the temple is entitled to collect any lease amount from the persons who had occupied the temple. But the temple has not taken any steps to evict them all these years. But if the land belongs to the temple, then it has to be considered that the defendants were using temple land and the temple is entitled to collect any lease amount from the persons who had occupied the temple. But the temple has not taken any steps to evict them all these years. Therefore, this Court is of the considered opinion neither mesne profits nor upliftment charges can be levied on either party. Hence the substantial question of law (c) is answered accordingly. 13. The contention of the temple is that as per Ex.A2 Inam Fair Register, the land is Thirumanjanam Grant Land. When the Inam Fair Register states that it is a grant land, the Settlement Tahsildar ought to have issued notice to the temple for conducting the proceedings or for granting patta to the defendants. On perusing Ex.B8, it is seen that notice was not sent to the temple. In such circumstances, the issuance of patta in the name of defendants, under Ex.A8 is violative of principle of nature justice and the patta is illegal. When the suit property is Devadayam land granted for Thirumanjanam service and it is a permanent grant, the same cannot be sold at all. Even in the Inam Fair Register in Column 10, it has been clearly stated it is a permanent grant. Therefore, the finding of the Lower Appellate Court that the plaintiff had failed to establish that the grant is in favour of the plaintiff is a perverse finding. The Appellate Court ought to have considered Ex.A2 Inam Fair Register which is the parent document of the temple. Infact, the erstwhile owner namely Subba Rao and Gopal Rao were in possession of the land, since their ancestors were carrying on the Thirumanjanam service. It is so unfortunate to note that the erstwhile vendors have sold the properties and stopped the Thirumanjanam service to the temple. Now, the temple is carrying on the Thirumanjanam service by paying salary to the persons carrying on the service from the temple income. When the Column 10 of Inam Fair Register says the inam is permanent, the inam cannot be changed at any point of time. Therefore, the substantial questions of law (d), (e) and (g) are held in favour of the plaintiff temple, the appellant herein. 14. When the Column 10 of Inam Fair Register says the inam is permanent, the inam cannot be changed at any point of time. Therefore, the substantial questions of law (d), (e) and (g) are held in favour of the plaintiff temple, the appellant herein. 14. As far the substantial question of law (f) and (h) are concerned, the defendants have claimed that the plaintiff has not come forward and questioned whether the temple is having iruvaram right. But the contention of the temple is that when the Inam Fair Register states the land as a permanent grant, there is a presumption that the temple is having both varams under Section 44 of Tamil Nadu Act No. 30 of 1963. The said provision is extracted hereunder: “44. Presumption in the case of service inam: In proceedings under this Act relating to any inam granted for the benefit of any religious, educational or charitable institution or granted to any individual for rendering service to a religious, educational or charitable institution or for the purpose of rendering any other service, it shall be presumed, unless the contrary is proved that the inam consists not merely of a grant of the melvaram in the land but also the kudivaram therein.” When there is a presumption, it is for the defendants to rebut the presumption to prove otherwise. When the burden is on the defendants, then defendants ought to prove the same. Further once the grant is attached with the service, then the temple has every right to seek resumption of the property to the temple section 2(17) of the HR&CE Act. This preposition is supported by the judgment of the Hon’ble Supreme Court rendered in the case of Sankaranarayana Swamy Devasthanam Vs. P.S. Chandrasekara Raja in Civil Appeal No. 2671 of 2013 dated 23.02.2022 ''17.Once it is clear that even as per the admitted case of the respondent, it was a grant burdened with the service and that there was a right of resumption under Section 21(7) of the Act, the respondent cannot resist the reliefs sought by the temple. In other words, the sale deeds in favour of the respondent or his predecessors-in-title cannot take away the statutory right of the appellant-temple to resume the land. An institution which has the right of resumption, has a right to seek a declaration that the sale is null and void. In other words, the sale deeds in favour of the respondent or his predecessors-in-title cannot take away the statutory right of the appellant-temple to resume the land. An institution which has the right of resumption, has a right to seek a declaration that the sale is null and void. There is no point in allowing title to remain with some one and possession with another.'' The aforesaid Supreme Court case is followed by the High Court in S.A.(MD) No. 652 of 2003 dated 18.07.2022. Therefore, even sale of the property to third parties will not take away the plaintiff / temple’s right to seek resumption of the property to the temple. Further under 21 (7) (b) of the Act makes it clear that upon resumption, the property shall become absolute property of the temple. Once plaintiff / temple has become absolute owner of the property the sale deed executed in favour of the defendants ought to be cancelled. Therefore, the plaintiff / temple is entitled to submit petition before the concerned registration authority to cancel the sale and on such petition the authority shall cancel the sale deeds and the cancellation shall reflect in the encumbrance certificate. Also, the plaintiff / temple is entitled to cancel the Settlement Patta issued in the name of the previous vendors under the Act 30 of 1963. 15. The defendants / respondents have filed C.M.P.(MD)No.1090 of 2024 to receive the additional document of partition deed, dated 07.08.1916, registered as Document No.2887 of 1916. The defendants rely on the said partition deed to claim that their ancestors, namely Lakshmikantha Rao and Ramachandra Rao were enjoying the suit properties, thereafter, they had partitioned among themselves. On perusing the said document, it is seen they have simply stated that they were in enjoyment of the property and they have not stated how they got the property and how the family got possession of the property. When the Inam Fair Register, which is the parent document for the temple, states that temple is the owner of the property as a “Thirumanjanam Service Inam”, then the land has to be construed as Devadayam land. When the said partition deed has not spelt out the earlier owner prior to 1916, it has to be construed that temple is the owner based on the Inam Fair Registrar marked as Ex.A2. When the said partition deed has not spelt out the earlier owner prior to 1916, it has to be construed that temple is the owner based on the Inam Fair Registrar marked as Ex.A2. Further it has to be taken that the said Lakshmikantha Rao and Ramachandra Rao and their ancestors were in possession based on their service rendered to the temple. Hence the same will not give any right to the defendants and their pervious vendors to sell the property. The said additional document is only supporting the case of the temple. The substantial question of law (f) and (h) are also answered in favour of the plaintiff temple. 16. The C.M.P.(MD)No.1090 of 2024 filed to accept the additional document is allowed. 17. Therefore, the judgment and decree passed by the Appellant Court in A.S.No.39 of 2012 is set aside and the judgment and decree passed by the Trial Court in O.S.No.69 of 2008 is confirmed except for the mesne profits and upliftment charges since both the mesne profits and upliftment charges are denied in the present second appeal. Hence the S.A.(MD)No.83 of 2017 is allowed to the extent stated supra. The Cross Appeal challenging the upliftment charges granted by the Trial Court is set aside. Hence the S.A.(MD)No.84 of 2017 is allowed. 18. For the reasons stared supra, S.A.(MD)No.83 of 2017 is allowed to the extent stated supra and the S.A.(MD)No.84 of 2017 is allowed. No costs. The C.M.P.(MD)No.1090 of 2024 is allowed.