R. BANUMATHI, J.

1. Being aggrieved by judgment dated 20.2.2008 decreeing the Suit C.S. No. 914 of 1989 filed by the 1st respondent/ plaintiff directing the defendants to deliver possession of the suit property, defendants 3, 4 (appellants 1 and 2) and 43 to 45 (appellants 3 to 5) have preferred this appeal.

2. The suit property in S. Nos. 2364/1 and 2364/2 measuring 22 grounds and 282 sq.ft. In Pidariyar Koil Street, Gopathy Narayanaswamy Chetty Street, Mylapore, Chennai belongs to plaintiff temple Arulmigu Kolavizhiamman temple. The present case is a typical case as to how the Poojaris (Archagars), who came in for performing poojas and as in-charge of the temple seek to claim right of ownership in the vast extent of very valuable property of the temple as their private land. In the earlier proceedings before the Commissioner/Deputy Commissioner, the Hindu Religious and Charitable Endowment, the appellants have fought out making a claim that the temple is their private temple and were also unsuccessful in the subsequent proceedings claiming themselves as hereditary trustees. The appellants and their ancestors, who claimed to be in possession of the temple properties for performance of poojas in the temple, are squatting on the property by leasing the property to defendants 5 to 41 and collecting rent from the tenants and enriching themselves. Now they are fighting out the litigation through their power of attorney D. Kothandan (D.W.I). In the light of the innumerable documents and evidence adduced by the 1st respondent/plaintiff temple proving the title of the temple, we proceed to consider the rival contentions of the parties.

3. Averments in the plaint:- The plaintiff temple is an ancient temple. The land bearing S. No. 2364 measuring 1 cawnie, 7 grounds and 2306 sq.ft. was given as a grant by the Government to the plaintiff temple. One Senji Archagar, the grand father of Defendant No. 4 was the Poojari (Archagar) and de facto trustee of the plaintiff temple. He was in-charge and in management of the said temple and Its properties. After his death in 1928, one Rajoo Archagar, the father of defendants 1 to 3, his son Doraisamy Archagar and Shanmugam Archagar and their cousins were Poojaris and de facto trustees of the temple and were in-charge of the management of the temple and its properties.

4. Since the said Rajoo Archagar and others were acting against the interests of the temple, the Assistant Commissioner, H.R. & C.E. Department, Madras by order dated 4.8.1958 passed in D.Dis.6940/57 appointed one C.P. Munuswami Naicker as the trustee of the temple and directed him to take charge of the temple and its properties. In the proceedings before the Deputy Commissioner, H.R. & C.E., the appellants claimed that the temple is their private temple and their claim was negatived. In yet another proceedings before the Deputy Commissioner, the appellants were unsuccessful in their claim that they are the hereditary trustees.

5. Munuswami Naicker and the trustees appointed subsequently could not succeed in their attempt to recover possession of the temple properties. Rajoo Archagar and others filed O.S. No. 27 of 1959 on the file of City Civil Court, Madras for declaration that they were the absolute owners of the temple and Its properties and for permanent injunction restraining the said Munuswami Naicker and others from interfering with their management of the temple and its properties. On 9.8.1961, the said suit was dismissed as not pressed. The plaintiff represented, by the then trustees filed O.S. No. 2191 of 1971 on the file of the City Civil Court, Madras against Rajoo Archagar and others for possession of a portion of the land bearing S. No. 2364/1. The said suit was withdrawn on 19.12.1973 with liberty to file fresh suit on the same cause of action. In July 1979, the management of the temple was amalgamated with the management of Arulmighu Kapaleeswarar temple, Mylapore, Madras-4. In or about 1964, S. No. 2364/1 measuring 1 Cawnie, 7 Grounds and 1334 sq.ft was subdivided into S. No. 2364/1 measuring 21 grounds 1710 sq.ft., S. No. 2364/2 measuring 972 sq.ft., S. No. 2364/3 measuring 6 grounds and 1920 sq.ft. and S. No. 2364/4 measuring 2 grounds and 1532 sq.ft. The temple is situate in portion of S. No. 2364/3. S. No. 2364/4 has been alienated unauthorisedly. The patta in respect of the lands in S. Nos. 2364/1 and 2 stood in the name of Senji Archagar, in-charge of Kolavizhi Amman temple. The plaintiff temple is the absolute owner of the lands in S. Nos. 2364/1 and 2364/2.

6. The administration of the plaintiff temple is governed by Exhibit P-20 scheme decree applicable to Kapaleeswarar temple. S. No. 2364/1 was subsequently sub-divided. The patta in respect of the lands in S. Nos. 2364/1 and 2364/2 stood in the name of Senji Archagar only as in-charge of plaintiff temple. Plaintiff temple alone is the absolute owner of the lands in S. Nos. 2364/1 and 2364/2. Defendants No. 1 to 4 have absolutely no right, title or interest in the lands bearing S. Nos. 2364/1 and 2364/2 and they were in possession and management in the capacity as Poojaris and de facto trustees of the plaintiff temple. Even after they ceased to be Poojaris and de facto trustees of temple in 1958, they continued to be in unlawful possession and management of the said lands and are collecting rents from the temple in the property. Defendants No. 5 to 38 are the present tenants in respect of the said lands and hence they were impleaded as parties to the suit and the tenants have also put up superstructure. The plaintiff issued a legal notice dated 25.5.1989 (Exhibit P-15) to defendants 1 to 4 calling upon them to surrender possession of lands bearing S. Nos. 2364/l and 2 and they sent reply dated 12.6.1989 (Exhibit P-16) with false allegations claiming absolute title in the said lands. Hence, the suit is filed for recovery of possession of the said lands. The suit, being filed by the plaintiff temple, is not barred by limitation.

7. Averments in the written statement:- Resisting the suit, the appellants/defendants 1 to 4 have filed written statement contending that Senji Archagar and his predecessors in title owned and possessed the suit property for more than 200 years. They have been in absolute possession and enjoyment of the said lands without any interruption from any person and put up construction in their own capacity as absolute owners. Defendants 1 to 4 also are in possession of the suit property in their own right and title and not in the capacity of the trustees of the temple. The Urban land Tax authorities have correctly sent notice to defendants 1 to 4 for payment of Urban land tax in respect of the properties in S. Nos. 2364/1 and 2364/2. The patta originally stood in the name of Senji Archagar as he was the true owner of the said lands. The defendants deny the allegation of the plaintiff temple that it is the absolute owner of the lands bearing S. Nos. 2364/1 and 2364/2. The property is not an original endowment nor was it vested in the plaintiff temple.

8. It was further averred in the written statement that the plaintiff is not entitled to maintain the Suit invoking the provision under Section 10 of the Limitation Act. Earlier, the plaintiff filed a similar suit in O.S. No. 2191 of 1971 against Rajoo Archagar and others in respect of the very same property praying for similar relief and the said suit was withdrawn on 19.12.1973. After lapse of more than sixteen years, the plaintiff temple has filed this suit and the suit filed for possession without seeking declaration is not maintainable. It is averred that the defendants and their predecessors in title have been- and are in possession and enjoyment of the suit property in their own right for more than the statutory period of limitation and that they have prescribed title to the suit property by adverse possession. The Suit is barred by limitation and devoid of merits and the same is liable to be dismissed.

9. Before the single judge, Appellants No. 3 to 5 and respondent No. 40 were impleaded as legal representatives of 1st defendant as per order dated 6.1.2000 in A. No. 2847 of 1998. Respondents No. 41 to 44 are impleaded as legal representatives of 2nd defendant as per order dt.24.2.2003 in A. No. 580 of 2003. Respondents No. 3 to 44 remained ex parte in the suit.

10. Findings of the Trial Courts- On the above pleadings, the learned single Judge has framed seven issues and two additional issues. On the plaintiffs side, a clerk of plaintiff temple was examined as P.W.I and Exhibits P-1 to P.22 were marked. On the side of defendants, power of attorney of defendants 1 to 4 -Kothandan (D.W.I) was examined and Exhibits D-1 to D-46 have been marked. Upon consideration of the oral and documentary evidence, on Issue No. 1, the learned single Judge held that the plaintiff temple acquired title to the suit property by way of grant of land to the temple by the Government and that the plaintiff is the absolute owner of the suit property. On Issue No. 2, it was held that defendants 1 to 4 and their predecessors have been in possession and enjoyment of the suit property only as poojaris and de facto trustees of the plaintiff temple and were not in possession of the suit property in their own right. On the question of limitation (Issue No. 3), the learned judge held that as per the substituted provision under Section 109 of H.R. & C.E. Act, through T.N. Act No. 28 of 2003, which came into effect on 1.9.2003, the provisions of Limitation Act, 1963 shall not apply to pending suit for possession of immovable property belonging to religious institution. On issue No. 5, the learned judge held that the suit for bare recovery of possession without seeking declaration of title is maintainable in law. On those findings, upholding the title of plaintiff temple, the learned single Judge decreed the Suit holding that the plaintiff temple is entitled to a decree for recovery of possession.

11. Contentions:- Challenging the impugned judgment, learned senior counsel appearing for appellants inter alia raised the following contentions:

Exhibit P-2, where the temple has been shown as the owner of the property, is of the year 1895-1897, whereas Exhibit D-39, which relates to the year 1903; is for the same survey number, whereas ancestors of defendants are shown as the owners.Even though plaintiff temple amalgamated with Kapaleeswarar temple, Exhibit P-20 scheme decree does not contain any appendix showing that the suit property was administered by the plaintiff temple.

Suit filed by the plaintiff temple for recovery of possession without seeking for declaration of title is not maintainable.

Earlier Suit OS No. 2191 of was withdrawn in 1973 and the-present suit came to be filed only in 1989 after lapse of 16 years and the suit is barred by limitation and the Appellants have perfected title by adverse possession.

Suit filed by the Executive Officer is mot maintainable.

12. Reiterating the findings of the trial Court, the learned counsel for 1st respondent/plaintiff temple contended that Exhibits P-2 and P-3 and the various other proceedings would amply show that the plaintiff temple is the absolute owner of the suit property and their predecessors in title were only Poojaris and in-charge of the temple and cannot claim title in their own right. In so far as Exhibit D-39, it was contended that Exhibit D-39 is a created document. Taking us through the defendants documents, it was submitted that the payment of property tax will not confer any title upon defendants 1 to 4. It was further argued that the possession of defendants 1 to 4 and their predecessors in right was only for and on behalf of the temple and they cannot be permitted to raise plea of adverse possession.

13. We have considered the rival contentions and analysed the oral and documentary evidence. We have also gone through the citations relied upon by both the parties. The following points arise for determination in this appeal:

l. Whether the single Judge was right in holding that plaintiff temple is the absolute owner of the suit property

2. Whether the appellants are right in contending that they were in enjoyment of the suit property in their own fight

3. Whether the suit filed by the plaintiff temple for bare recovery of possession without seeding for declaration is not maintainable

4. Whether the suit is barred by limitation

5. Whether the suit filed by the Executive Officer of the plaintiff temple is not maintainable

6. To what relief, the parties are entitled to

14. Factual background of the matter:

Before adverting to the contentious issues urged, it is necessary to refer to the factual background of the temple and highlight certain aspects regarding the suit property and the administration of the temple. The temple Kulumalai Ammen Covil and the suit property are situated in Gopathy Narayanaswamy Chetty Street, Mylapore, Chennai and its original name is Pidariyar Koil Street and also known as Amman Koil street. The plaintiff temple is the ancient temple. It is stated that whenever Bramotsavam festivals are conducted in Arulmigu Kapaleeswarar temple, Mylapore, Madras 4, before the commencement of the festivals, preliminary poojas and abisekam are done first in this temple. It is treated as Ellai Pidari for that temple and was formerly known as Kolamoli Amman Temple. The land was endowed to the plaintiff temple several hundred years ago by the Government for conducting poojas, ceremonies and upkeep of the temple. In the Madras Town Resurvey Register 1895-97 (Exhibit P-2), the plaintiff temple (which was then known as Kulamalai Amman Covil) is shown as the owner of the land. S. No. 2364 was subdivided into S. No. 2364/1 measuring 1 cawnie, 7 grounds and 1334 sq.ft. and S. No. 2364/2 measuring 972 sq.ft.

15. Amalgamation of the temple with Kapaleeswarar templeSection 23 confers wide powers on the Commissioner of general superintendence and control in respect of all Hindu temples and religious endowments. In exercise of the power under Section 23 of the Act, under Exhibit P-18 Pa Mu No. 42100/79 dated 17.7.1979, the Commissioner has ordered amalgamation of the plaintiff temple with Kapaleeswarar temple. In the said proceedings, the Commissioner has ordered that the properties and the accounts of the plaintiff temple shall be maintained along with the properties and accounts of Kapaleeswarar temple.

16. Appointment of fit person: Under Section 47 of H.R. & C.E. Act, pending Constitution of Board of Trustees, Commissioner/Joint Commissioner/Deputy Commissioner may appoint a fit person to perform the functions of the Board of Trustees. The Deputy Commissioner, H.R. & C.E. has been appointed as a fit person for the plaintiff temple. The fit person has authorised Executive Officer to file the present suit, which we would shortly refer to.

17. As pointed out, one Senji Archagar was performing pooja and was in-charge of the plaintiff temple. The defendants claimed to be the descendants of Senji Archagar as under:

Table

18. Point No. 1: The original survey number for the suit properties was 2364, total extent is 1 Cawnie, 7 grounds and 2,306 sq.ft. The property was given to the temple by the Government by way of grant for maintaining temple. Exhibit P-2 is the Re-Survey Register of Town of Madras, Mylapore Division No. 1. The relevant entries in Exhibit P-2 shows that Survey No. 2364 as belonging to Kulumalai Amman Covil. The relevant entries in Exhibit P-2 reads as under:

Table

Survey No. 2364 was further sub-divided as under:

Table

19. Exhibit P-3 is the extract from the Register of Land exempted from assessment. Since Survey No. 2364/l,was grant to the temple, the same was exempted from Quit Rent, Exhibit P-3 reads as under:

From the above entries, it is clear that Senji Archagar was shown as only in-charge of Kulurmalai Amman Koil. After Senji Archagar, Rajoo Archagar, Doraisamy Archagar and Shanmugham Archagar were doing pooja in the temple. Even though defendants 1 to 4 claimed that they were in possession of the property in their own capacity, the contention of defendants 1 to 4 is falsified by the entries in Exhibit P-3.

20. For the properties of the temple, the temple has to pay urban land tax. Exhibit P-8 is the notice of attachment dated 29.9.1979 issued by the Tahsildar, Mylapore for the urban land tax due and payable for plaintiffs temple lands 2364/1 and 2364/2. Under Exhibit P-9, plaintiff temple sent a reply stating about the amalgamation of Kolavizhi Amman temple and that the main Kapaleeswarar temple has been granted exemption from the payment of urban land tax and requested to extend the same to the properties of plaintiffs temple also. We may usefully refer to Exhibit P-9, which reads as follows:

Tamil

The translated version of the above in English reads as under:

The notice for attachment of the Tahsildar for the remittance of the Urban Land Tax of Rs. 7,111.90/-in respect of the lands in S. Nos. 2364/1, 2364/2, 2364/3, 2364/4 respectively belonging to the Arulmighu Kola Mozhi Amman Temple received on 29.9.79.

The aforesaid temple has been considered as a Sub temple of the Arulmighu Kapaleeswarar Temple by the order of the Commissioner in Pa.Mu.49100/17.7.79 and had been annexed to this temple. Only after that all the lands belonging to the aforesaid temple has come under the in-charge of this temple.

Further, the properties belonging to the Arulmighu Kapaleeswarar Temple was given total exemption for urban land tax in G.O. No. 1178 Revenue Department dated 2.8.77. After that, all the properties belonging to the religious endowments in the State of Tamil Nadu has been accorded total tax exemption in G.O. No. 2625/Revenue Department dated 26.12.76. Hence, it is requested that the properties in Fasli 1373 to 1381 mentioned hereunder, belonging to Arulmighu Kolamozhi Amman Temple annexed along with this temple shall also been given tax exemption.

S. No. Extent of the Land

2364/1.22.232

2364/2 972

2364/3 6.1920

2364/3 2.1532

Plot 31,2306 Sq.Ft.

Further, the meagre revenue obtained from the aforesaid land has been expended only for the daily routines and poojas performed in the temple. Hence, it is requested that urban land tax exemption may be sanctioned for the aforesaid land and to recall the notice for attachment in No. 4.

21. As is evident from the proceedings in A2/8432/84 dated 5.8.1985, (Exhibit P- 10), the Assistant Commissioner (Urban Land Tax) has revised the urban land tax payable. In Exhibit P-10 proceedings, ownership of plaintiff temple in S. Nos. 2364/1 and 2364/2 has been categorically asserted as seen from the following:

Tamil

Table

and the translated version in English reads under:

The Land Tax order passed in proceedings of this office in Order No. F.C. No. I/Part 47/Mylapore/75 dated 8.12.81 is cancelled by the order of the Special Commissioner in Pa.Mu.1454/84 dated 9.1.95 and he has passed an order for re-enquiry. In the re-enquiry, the land comprised in Survey No. 2364/1 and 2364/2, belongs to Arulmighu Kolavizhi Amman Temple.

Therefore, the reassessed land tax is levied again from Fasli 1385 as hereunder :

Table

The copy of Exhibit P-10 was also marked to Executive Officer of plaintiff temple, the 1st defendant R.Shanmugam and others. By reading of Exhibit P-9 representation and Exhibit P-10 proceedings, it seems that the Assistant Commissioner (Urban Land Tax) had revised the tax payable and on the only basis that the property belongs to the temple.

22. As pointed out earlier, original patta was in the name of Senji Archagar, in-charge of Kolavizhi Amman temple. In his evidence, P.W. 1 has stated that in 1988, defendants 1 to 4 without reference to plaintiff temple transferred the patta in their names. Under Exhibit P-13, the then Deputy Commissioner had raised objection before the Tahsildar, Mylapore for issuance of patta in the name of third parties and that patta has to be issued only in the name of temple. Considering the said objection, patta was corrected and under Exhibit P-14, patta was again re-issued in the name of temple showing Senji Archagar as in-charge of Kolavizhi Amman koil. Exhibit P-11 is the lease deed dated 15.11.1973 under which the then de facto managing trustee Chandran had executed lease in favour of V.Mani for an extent of 625 sq.ft.

23. Earlier proceedings before H.R.& C.E. As per the proceedings of Assistant Commissioner, H.R. & C.E. Dept, Exhibit P-4 dated 4.8.1958, H.R. & C.E. Department has appointed C.P.Munuswami Nayakar as the trustee. In Exhibit P-4 proceedings, C.P. Munuswami Nayakar, who was appointed as trustee, was requested to take charge of the temple, its accounts, movables, immovable properties, cash balance, bank pass books and other documents belonging to the temple from the de facto trustee -R.Shanmuqam (1st defendant), Rajoo Archakar, Krishna Archakar and Dakshina Archakar, who were requested to hand over charge. Copy of Exhibit P-4 was also marked to the 1st defendant and the above said persons. Exhibit P-4 makes it clear that the properties are only the temple properties.

24. Soon after appointment of C.P. Munuswami Nayakar as trustee of the plaintiff temple, R.Shanmuga Archagar (Defendant No. 1), Dakshinamurthy Archagar (Defendant No. 4) and their family members viz., Raju Archagar, Krishnaswamy Archagar, V. Subramania Archagar and S. Shanmuga Archagar have filed O.A. No. 95 of 1998 under Section 63(a) of H.R. & C.E. Act, 1959 claiming that they are the descendants of Kumaran Archagar and that the temple was founded by their ancestors for their private personal worship and that the temple is a private one, having been constructed exclusively for the private worship of the petitioners ancestors. In the said petition, an elaborate enquiry was held and parties advanced arguments. Upon consideration of the contentions, by order dated 26.4.1960 (Exhibit P-5), the said petition filed by defendants 1 and 4 and others was dismissed. In the said order, the Deputy Commissioner has negatived the plea of defendants that the temple is intended only for the private worship and the Deputy Commissioner held that the temple has all the features of a public temple.

25. Defendants 1 and 4 and the above said four persons have also filed O.A. No. 93 of 1958 claiming that they are the hereditary trustees of plaintiff temple. By Order dated 30.4.1963; (Exhibit P-6), the said petition O.A. No. 93 of 1958 came to be dismissed. In the said order, the Deputy Commissioner has clearly held that

the available evidence go to show that the petitioners (defendants) or their ancestors have only been poojaris of the suit temple and that the poojaris, who were in possession of the properties of the suit temple, have been mismanaging the affairs of the temple, misappropriating the income from the properties and leaving the temple to go to ruins.

Being aggrieved by the dismissal of their application O.A. No. 93 of 1958, defendants 1 and 4 and the above said four persons have also preferred an appeal before the Commissioner, H.R. & C.E. In Appeal No. 27 of 1963. The said Appeal also came to be dismissed by order dated 21.3.1964 (Exhibit P-7) holding that the petitioners having failed in their attempt to claim the property as their personal property have come forward with a claim to hereditary trusteeship and the same cannot be sustained.

26. The fact that defendants 1 and 4 and their family members were unsuccessful in their claim in the various proceedings before H.R. & C.E. that the plaintiff temple is a private temple strikes a death knell to the defendants defence.

27. Re. Contention Exhibit P-20 Scheme decree and administration of suit temple properties:-As pointed out earlier, as per Exhibit P-18 proceedings of the Commissioner, plaintiff temple was amalgamated with Kapaleeswarar temple. Exhibit P-20 is the scheme decree governing Kapaleeswarar temple. The learned senior counsel for the appellants contended that Exhibit P-20 does not contain the schedule of properties of plaintiff temple. It was further contended that after merger of plaintiff temple, the scheme decree should have been suitably modified bringing the properties of Kolavizhi Amman temple to Exhibit P-20 scheme decree. It was further contended that in the absence of any appendix to Exhibit P-20 scheme decree, plaintiff temple cannot be said to be having continued right over the suit property and the plaintiff temple ought to have produced the register maintained for the plaintiff temple as contemplated under Section 29 of H.R. & C.E. Act.

28. The Scheme decree (Exhibit P-20) was framed in 1970. As per Exhibit P-18, plaintiff temple amalgamated with Kapaleeswarar temple in 1979. Since plaintiff temple was subsequently annexed with Kapaleeswarar temple as its sub-temple, the properties of plaintiff temple must be deemed to be part of Exhibit P-20 scheme. No amendment to Exhibit P-20 scheme was required. In fact, Clause 2 of Exhibit P-20 scheme decree stipulates that any property, which comes to the temple in future, shall devolve upon the respective deities and shall be governed by the scheme. Therefore, in our considered view, no amendment to the scheme Exhibit P-20 was required. For the sake of argument, assuming that it is necessary to be included in the Appendix, because of non-inclusion, the deity will not lose the title over the property. Lest, any unscrupulous official may choose to omit the properties mentioned in-the scheme. Would it mean that the deity will lose its title over the property The above argument advanced by the appellants cannot be countenanced.

29. Re-contention Non-maintenance of Registers as per Section 29 of H.R. & C.E.Act:- As per Section 29, for every religious institution, there shall be prepared and maintained a register in such form as the Commissioner may direct showing (a) the origin and history of the institution; (b) particulars of the scheme of administration; (c) the names of all officers with salary, emoluments, etc., (d) jewels, gold, silver, precious stones, vessels and other movables belonging to the institution; (e) particulars of endowments of the institution of all title deeds and other particulars as may be required by the Commissioner. Section 30 deals with Annual verification of the register. Section 31 deals with submission of register to the Commissioner for his approval directly or through the Assistant Commissioner once in ten years.

30. On behalf of the appellants, it was contended that after annexment with Kapaleeswarar temple, if really H.R. & C.E. Department was in management of the properties, plaintiff temple ought to have produced the statutory registers maintained under Section 29 to establish plaintiffs right over the suit property. It was further contended that in the absence of any register being produced by the plaintiff temple, an adverse inference has to be drawn against the temple for non-production of the relevant registers.

31. Per contra, learned counsel appearing for the plaintiff temple has submitted that as per Section 29, preparation and maintenance of register is intended only for proper and efficient administration of the temple and by non-production of those registers, plaintiff temple would not lose its title over the suit property, which is established by revenue records and other documents.

32. Of course, under Section 29, the religious institution has to prepare and maintain the registers, which is subject to annual verification, but the object of maintenance of registers is only for proper and efficient administration of the temple. Maintenance of registers and annual verification is only procedural and is concerning the internal administration of the temple. In case if the registers are not maintained properly, the Officer, who is in-charge of the temple is answerable. That would not in any way affect the title of plaintiff temple over the suit property, especially in the light of ancient documentary evidence adduced by the plaintiff temple. If at all, the appellants felt that those registers are essential, the appellants should have taken necessary steps calling for production of those registers. Now, in the appellate stage, the appellants cannot turn round and contend on the aspect of maintenance of registers.

33. Various documents filed by the plaintiff temple would clearly show that the suit properties are the temple properties and that the plaintiff temple is the absolute owner of the properties in Survey Nos. 2364/1, 2364/2, 2364/3 and 2364/4. It is also evident that name of Senji Archagar was only shown as in-charge of the plaintiff temple. In the chief examination, D.W.I has admitted that Senji.Archagar was managing the suit temple till his death in 1928. In his evidence, D.W.I has also admitted that prior to 1988, the patta for Survey Nos. 2364/1, 2364/2, 2364/3 and 2364/4 stood in the name of Senji Archagar as in-charge of Kolavizhi Amman temple. Exhibit P-3 clearly shows that there was no personal grant to Senji Archagar or to his predecessors. Learned single Judge rightly held that the plaintiff temple is the absolute owner of the suit property and we confirm the findings on Issue No. 1 and Point No. 1 is answered accordingly.

34. Point No. 2:- The case of defendants is that suit property is neither a temple property nor a religious endowment, but their predecessors in title have been in possession, control and enjoyment of the properties not as poojaris or trustees of the temple, but in their right as owners. In the written statement, the defendants averred that the defendants 1 to 4 are the true legal owners of the said lands with legal and legitimate right, title and interest in the suit property.

35. Case of defendants 1 to 4 is that their predecessors in title were in possession and enjoyment of the suit property in their own right as owners and not in the capacity of the trustees of the temple and that the defendants 1 to 4 are in lawful and absolute possession and enjoyment of the properties and in any event Defendants 1 to 4 and 42 to 45 have prescribed their title to the suit property by adverse possession.

36. Defendants claim that grant was made to the temple and that Defendants are in possession of the suit property in their own right. In his evidence, D.W.I D.Kothandan has stated that Kumaran Archagar was managing the trust properties and that after the death of Kumaran Archagar, his son Subbaraya Archagar and after his death, his sons Singara Archagar and Senji Archagar have been managing the suit temple. D.W.I would further state that after the life time of Senji Archagar, Defendants 1 to 4 or Defendants 42 to 45 have been managing the suit temple. All the documents of the Defendants have been produced only through D.W.1, who is power of attorney of Defendants 1 to 4. Defendants 1 to 4 did not get into the witness box to speak about their ancestors or documents. Under Exhibit D-4 (20.8.1998), Defendants 2 to 4 and Defendants 42 to 45 have given power of attorney to D.W.1. Under Exhibit D-4, Defendants 2 to 4 and 42 to 45 have given general power of attorney virtually giving away the property to D.W.I giving him the power to execute the sale deed, transfer the property by way of sale and also to complete the registration. D.W.I cannot be said to be a competent witness to speak about the ancestors of the Defendants 1 to 4 and also various documents relied upon by the Defendants.

37. Exhibit D-39:- The sheet anchor of the defendants case is that Exhibit D-39 is the extract of land settlement register issued by Assistant Settlement Officer, Tiruvannamalai dated 23.7.2000 and the same is stated to be the Land Settlement Register for 1903 for Survey No. 2364, both in the name of Kulumalai Amman koil and Kumaran Archagar. In the written statement, there is no whisper about the name of Kumaran Archagar nor about Exhibit D-39. As rightly pointed out by the learned single judge, name of Kumaran Archagar has been introduced for the first time through Exhibit D-39. The plaintiff attacks Exhibit D-39 contending that it is a document created by the defendants only in the year 2000 long after filing of the present suit to suit their version. If really Kumaran Archagar was the owner of the property along with Kulumalai Amman temple, the name of Kumaran Archagar would have been separately mentioned in Exhibit D-39.

38. As contended by the plaintiff temple, Exhibit D-39 dated 23.7.2000 was obtained long after filing of the suit. There are more than one circumstance to indicate that Exhibit D-39 has been brought into existence mainly for the purpose of this suit. If really Exhibit D-39 is true, name of Kumaran Archagar would have been found place in Exhibit P-2 Re-Survey Register, but that is not to be so. Exhibit P-3 would also fortify the same. In his evidence, D.W.I would admit that there is no title deed in the name of Kumaran Archagar to show that he was the original owner of the suit property. D.W.I would further state that there is no record to show that Kumaran Archagar was in possession of the suit property and thereafter, Subbaraya Archagar continued in possession of the property and managing the affairs of the temple. Except Exhibit D-39, no other document was produced to show that Kumaran Archagar was the owner of the suit property originally. The extent of old survey numbers in Exhibit D-39 and the extent of new survey numbers in 2364/1, 2364/2, 2364/3 and 2364/4 differs. Exhibit D-39 is inconsistent with the case put forth by the defendants in their written statement. As elaborated earlier, name of Senji Archagar is stated in Exhibit P-3 only as in-charge of the plaintiff temple.

39. If really Exhibit D-39 was in existence, defendants 1 to 4 could have well produced the same in the earlier proceedings before the Deputy Commissioner, H.R. & C.E./Commissioner. Exhibit D-39 was not produced before the authorities and nowhere the earlier proceedings reflect the existence of Exhibit D-39. It is also pertinent to note that there is no mention about the Land Settlement Register Exhibit D-39 in the name of Kumaran Archagar in the written statement. In fact, as pointed out earlier, defendants 1 to 4 have not got into the box to speak about Exhibit D-39. During trial, the power of attorney of the defendants (D.W.I) had only produced Exhibit D-39. The learned counsel for 1st respondent/plaintiff submitted that after D.W.1s evidence was over, the defendants counsel took time representing that they would summon the original of Exhibit D-39 to prove their case; but no steps were taken by the defendants and their evidence was closed. Considering the various circumstances, the learned single Judge rightly held that Exhibit D-39 was a document created by the defendants only in the year 2000 long after filing of the suit and that no weight could be attached to Exhibit D-39. We fully concur with the findings of the learned single Judge on Exhibit D-39.

40. Defendants other documents: To substantiate their defence, the defendants rely upon the following documents:

Exhibits D-27 and 28 Extracts from the Permanent Land Register (dated 14.6.1995) Issued by Tahsildar, Mylapore, Triplicane Taluk to the appellants 1 to 4 in respect of Survey No. 2364/2 and 2364/1 and also Exhibit D-29 series patta issued by the Tahsildar in respect of Survey Nos. 2364/2 and 2364/1;

Exhibits D-15 to D-20 Demand notices issued by the Urban Land. Tax authorities in respect of Survey No. 2364/1 and 2364/2 and

Exhibits D-21 to D-24 Urban Land Tax assessment orders in respect of Survey No. 2364/1;

Exhibit D-9 Series Corporation tax receipts in respect of Door Nos. 1 and 2, Pidariar koil street upto 1957;

Exhibits D-10 and D-11 series Corporation tax receipts in respect of D.Nos.2 and 1 of Pidariar koil street;

Exhibit D-12 series receipts issued by Madras Metropolitan and Water Supply Sewerage Board in respect of D. Nos. 1 and 2, Pidariar koil street from 1979 to 2001;

Exhibits D-13 and D-14 Memorandum of agreements entered into between Rajoo Archagar and Chennai Corporation.

41. Learned senior counsel for appellants contended that the above documents would show that the defendants are in possession of the properties in their own capacity and not as poojaris/ de facto trustees of the temple.

42. Exhibits D-27 and 28 Extracts of Permanent Land Register stand in the name of defendants 1 to 4 (B2/TR/913/84-85 dated 20.3.1985). Likewise, Exhibit D-29 series patta for S. No. 2364/1 and 2364/2 for the year 1988 stands in the name of defendants 1 to 4. As discussed earlier, patta in respect of Survey No. 2364/1 and 2364/2 and 2364/3 always stood in the name of Senji Archagar, in-charge of Kulurmalai Amman koil. Under Exhibit D-29; dated 17.8.1988, defendants 1 to 4 got the patta transferred in their name in respect of the suit property. In his evidence, D.W.1 admitted that defendants 1 to 4 have got patta for the suit properties transferred in their favour on 26.7.1988- and prior to that, patta was in the name of Senji Archagar, in-charge of Kulurmalai Amman koii. As discussed earlier, on coming to know about the obtaining of patta by defendants 1 to 4, temple had sent Exhibit P-13 representation (dated 14.10.1988) stating that the property belongs to the temple and requesting to cancel the patta issued in the name of third parties (Defendants). Subsequently, under Exhibit P-14, the patta was corrected in respect of Survey No. 2364/1 21 grounds 1710 sq.ft. was restored to the original position i.e., issued in the name of Kulurmalai Amman koil showing Senji Archagar as in-charge of said koil. Exhibit P-14 Permanent Land Register is much later than Exhibits D-27 to D-29. When the patta issued in the name of defendants 1 to 4 was cancelled and as per Exhibit P-14, patta was already restored to its original position i.e., in the name of plaintiff temple showing Senji Archagar as in-charge, no reliance could be placed upon Exhibits D-27 to D-29 and Exhibits D-27 to D.29 are of no assistance to the defendants.

43. Defendants 1 to 4 have also filed Exhibits D-21 to D-24 stating that they have been assessed to urban land tax for the suit properties. They also placed reliance upon Exhibits D-17 to D-20-Demand notices issued by the Urban Land Tax authorities. The Urban Land Tax assessment orders are all subsequent to the suit. The learned counsel for the 1st respondent/plaintiff temple would submit that during the pendency of the suit, defendants 1 to 4 were creating evidence to show that the suit property belongs to them. Defendants 1 to 4 seems to have voluntarily submitted the returns to assess the urban land tax in favour of defendants 1 to 4. In his cross examination, D.W.I has admitted that Exhibits D-21 to D-24 are the Assessment orders on the basis of the returns filed by the defendants 1 to 4.

44. As discussed earlier, the Executive Officer of plaintiff temple had sent Exhibit P-9 representation to exempt payment of Urban Land Tax for plaintiffs temples properties in Survey Nos. 2364/1, 2364/2, 2364/3 and 2364/4. The Assistant Commissioner, Urban Land Tax had also passed Exhibit P-10 proceedings dated 5.8.1985 revising the urban land tax payable. As pointed out earlier, in Exhibit P-10 proceedings, the Assistant Land Commissioner, Urban Land Tax had categorically stated that Survey Nos. 2364/1 and 2364/2 belong to plaintiff temple. Viewing in the light of Exhibit P-10, the assessment of urban land tax relied on by defendants 1 to 4 will not advance their defence. Urban Land Tax assessment orders produced by the defendants are only self-serving.

45. Insofar as the series of documents Exhibits D-9 to D-12 and memorandum of agreements entered with the Corporation (Exhibits D-13 and D-14), they are all related to the superstructures. Case of plaintiff temple is that the land belongs to the plaintiff temple and the superstructures have been put up by the defendants 1 to 4. Moreover, defendants 1 to 4 and their ancestors have been in possession of the land and superstructure as poojaris/ de facto trustees and hence the payment of property tax or entering into the memorandum of agreement with the Corporation for sewerage and water connection will not in any way confer title on the defendants 1 to 4. Hence, the series of documents -Exhibits D-9 to D-12 and D-13 and D-14 would not in any way advance the case of the defendants.

46. The documents filed by the defendants will no way advance their case. Once it is held that the property belonged to the plaintiff temple and that the ancestors of defendants 1 to 4 were only poojaris/archakas, the payment of property tax and entering into agreement with Corporation for sewerage and water connection could at the best be only for and on behalf of the plaintiff temple.

47. Viewed in the light of Exhibit P-10, Exhibits D-27 and 28 cannot in any manner confer title upon the defendants. Upon analysis of the evidence adduced by the defendants, the learned single Judge rightly held that the defendants 1 to 4 have been in possession and enjoyment of the suit property as poojaris and de facto trustees of the plaintiff temple and that they have not been in possession of the suit property in their own right as owners and this point is answered accordingly.

48. Point No. 3 Maintainability of Suit for recovery of possession without prayer for declaration of title:- The learned senior counsel for the appellants contended that the suit for recovery of possession without the prayer for declaration of title is not maintainable. It was further argued that the learned judge failed to appreciate that the appellants/defendants have denied right of the plaintiff temple to recover possession and when there is a denial of right, the suit filed for mere recovery of possession without any prayer for declaration as provided under Section 34 of the Specific Relief Act is not maintainable in law and this important aspect was not considered in proper perspective by the learned judge. It was further contended that in the light of defence and series of documents filed by the defendants, certainly, a cloud has been cast on the title and the ownership of the plaintiff temple and Section 34 of the Specific Relief Act makes it obligatory to sue for declaration of title and mere suit for recovery of possession is not maintainable and while so the learned judge erred in decreeing the suit for recovery of possession. In support of his contention, the learned counsel placed reliance upon the decision of the Supreme Court in AnathulaSudhakar v. P. Buchi Reddy, (2008) 4 SCC 594 [LQ/SC/2008/747] : LNIND 2008 SC 748 : (2009) 1 MLJ 1001 [LQ/SC/2008/747] , wherein the Supreme Court has held as under:

13.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened- by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

13.2Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

13.3Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiffs title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a persons title, when some apparent defect in his title to a property, or when some prima facie right of a third party over It, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiffs title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary, for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiffs title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the Court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.

49. In the above decision, plaintiff Rukminibal had no right to the property and there was no plea in the plaint about the ownership of Rukminibai and the plaintiff therein without seeking for declaration of title sought for prohibitory injunction. In those factual circumstances, the Supreme Court held that the prayer for declaration of title is necessary and that suit for bare injunction is not maintainable. The factual scenario of the above case is different from the case on hand.

50. As discussed earlier, the title of the plaintiff temple has been reiterated in revenue documents and various earlier proceedings. Only when a cloud is cast on the title, there is a need to file the suit for declaration. A cloud upon title is an apparent defect in it. Anything of the kind, which has a tendency to cast doubt about title and to stand in the way of full and free exercise of ownership, would amount to a cloud upon the title. In the instant case, in more than one proceedings before H.R. & C.E, Dept, defendants 1 to 4 and their ancestors have been held to be poojaris/Archakas, who were performing poojas and fn management of the temple. In number of documents filed by it, they could only be for and on behalf of the temple. Under no stretch of imagination, poojaris/archakas, who came into the temple/ possession of properties of the temple as Archakas to perform poojas, can cast a cloud upon the plaintiff temples right and title. When the right and title of the plaintiff temple has been reiterated in various revenue documents and upheld in various proceedings, there was no necessity for the plaintiff temple to seek for declaration of title and this point is answered accordingly.

51. Point No. 4:- Whether the suit is barred by limitation and whether the defendants have perfected their title to the suit property by adverse possession:- in paragraph No. 10 of the plaint, it is averred that defendants 1 to 4 were in possession of the said land in their capacity as poojaris and de facto trustees and even after they seized to be poojaries they continued in possession and management of the lands. In paragraph No. 12 of the plaint, it is averred that as the suit property is a religious endowment and as such vested interest for specific purpose and the defendants 1 to 4 and their ancestors were in possession and management of the temple as poojaris and de facto trustees (manager of the temple), under Section 10 of the Limitation Act, suit for recovery of possession of the land is not barred by limitation.

52. As discussed earlier, Exhibit P-3 would show that Survey No. 2364/1 measuring 1 Cawnie 7 grounds and 1330 sq.ft was granted by the Government to the temple and Senji Archagar was shown as in-charge of the temple. Considering the purpose for which the grant was made, the land was exempted from quit rent.

53. On behalf of the appellant, it was contended that only to bring the suit within the provisions of Section 10 of the Limitation Act, for the first time in Exhibit P-15 notice, it has been alleged that Senji Archagar was in possession of the properties as in-charge/Manager and the same has been carried forward in paragraph 12 alleging that the defendants 1 to 4 are in possession and management of the suit properties as poojaris/ de facto trustees (managers) of the temple. The learned senior counsel for the appellants contended that for placing reliance on Section 10 of the Limitation Act, certain sine qua non has to be established by the temple first of all, the plaintiff has to prove that the property has become vested for any specific purpose and that the property is a charitable endowment and secondly the defendants were the managers of the suit property and are deemed to be trustees thereof. Taking us through the evidence of P.W.I, the learned senior counsel for appellants contended that no document has been produced by the plaintiff showing that the defendants were managers/poojaris of the temple and in the absence of any such document filed on the side of plaintiff, the suit cannot be brought within Section 10 to save the limitation. The main contention of the appellants is that in the absence of the plaintiff establishing the condition precedent contemplated under Section 10 of the Limitation Act, the plaintiff cannot claim the benefit of Section 10 and the suit is barred by limitation.

54. For applicability of Section 10 of the Limitation Act, the following conditions should be satisfied:

(i) There must be property which has become vested in a person in trust for a specific purpose.

(ii)The suit must be against such person or his legal representatives or assigns (not being assigned for valuable consideration.

(iii)The suit must be for the purpose of following in the hands of such person the trust property or its proceeds or for an account of such property or proceeds.

55. As discussed earlier, in his evidence, P.W.I has clearly stated that Survey No. 2364 was given to the temple as grant by the Government for maintaining the temple and the suit properties belong to the temple. In the proceedings before the Deputy Commissioner/Commissioner, H.R. & C.E., referring to Exhibit P-2, it is clearly stated that land forms site of a temple and that the income from the garden is appropriated for the purpose of the temple and grant was made for the purpose of temple. In Exhibit P-10 -proceedings of Assistant Commissioner (Urban Land Tax), it is clearly asserted that Survey Nos. 2364/1 and 2364/2 belong to the temple. Even though no specific trust/endowment has been produced, the very purpose of grant would show that the property is intended for the purpose of the temple establishing that it is a religious endowment. Under the general law, though there may be no trust for its specified purpose, in the case of religious and charitable endowment of Hindus and Muslims, for the purpose of Section 10, the endowed property should be regarded as property vested in Trust for a specific purpose and the Manager thereof as a trustee.

56. Under Section 10 , the Manager of a trustee is in the same capacity as a trustee Archakas cannot acquire right of the lands of the temple to which the grant was made because the Archakas should be deemed to be in possession in a fiduciary capacity and as such they cannot claim right in their own right. As pointed out earlier, in Exhibit P-2, Senji Archagar has been shown as Kulurmalai Amman koil. In the earlier proceedings in O.A. No. 93 of 1958, it was clearly held that Senji Archagar and others were in possession of the temple and the properties as poojaris. Exhibit P-3 and the findings in the earlier proceedings before H.R. &-C.E. Department would clearly show that the defendants 1 to 4 and their ancestors were only managers of the temple and the properties and therefore the plaintiff temple has rightly invoked Section 10 of the Limitation Act.

57. In PadmanabhaBhatta and Others v. H. Ramachandra Rao and Others, AIR 1953 Mad 842 [LQ/MadHC/1953/54] : (1953) 2 MLJ 382 [LQ/MadHC/1953/54] , while considering the scope of Section 10 of the Limitation Act, the Division Bench of this Court held that Archakas cannot acquire proprietary rights in the lands as against the temple to which the properties had been granted, because they should be deemed to have been in possession in a fiduciary capacity, and as such could not claim adverse possession and the Bench has followed earlier judgment of Division Bench of this Court in Venkatadriv. Seshacharyulu, AIR 1948 Mad 72 [LQ/MadHC/1947/13] : (1947) 1 MLJ 287 [LQ/MadHC/1947/13] , where the Court has held that there is no question of adverse possession as between poojaris and the temple.

58. In GuthaHariharabrahmam and Others v. Doddappaneni Janikiramaiah, Managing Trustee of Sri Janardhanaswami and Sri Malleswaraswami Temples, Chataparru and Others, AIR 1955 A.P. 18 , the single Judge of Andhra Pradesh High Court held as under:

by reason of the provision added by Act 1 of 1929 in Section 10, any property comprised in a Hindu Religious endowment shall be deemed to be property vested in trust for a specific purpose. Thus, the necessary condition for the application of Section 10 is satisfied by the fiction introduced. It will not be therefore, necessary in each case to establish by independent evidence that the property has become vested in trust for any specific purpose.

59. In this case, the conducting of poojas and ceremonies and. upkeep, of the temple are sufficiently specific to satisfy the requirements of Section 10 and the ancestors of the appellants, being in-charge of the temple as Managers/Trustees, plaintiff temple has rightly invoked Section 10 of the Limitation Act.

60. Earlier suit O.S. No. 2191 of 1971 filed by plaintiff temple was dismissed as withdrawn on 19.12.1973 with liberty to file fresh suit on the same cause of action. The present suit has been filed in the year 1989 after nearly sixteen years of withdrawal of the earlier suit.

61. Contention of plaintiff is that under Section 109 of H.R. & C.E. Act, as amended by Act No. 28 of 2003, nothing contained in the Limitation Act shall apply to any suit for possession of immovable property. It was further submitted that from the statement of objects and reasons of the Bill it is clear that the object of the provision is mainly intended to protect the temple authorities and therefore, there is no question of limitation for possession of plaintiff temples properties and the suit is not barred by limitation. Per contra, learned senior counsel for appellants would contend that the applicability of the provisions of Act No. 28 of 2003 Section 109 (amended) is not retrospective in nature and that it is only prospective. Contention of appellants is that suit has been filed in September 1989 and amended Section 109 having been introduced in 2003 without making it retrospective, the limitation as provided prior to the amendment of Section 109 alone will apply. It was further submitted that Section 109 prior to the amendment would only apply and the suit property has already been vested in the appellants predecessors in interest much before 30.9.1951 and therefore, the provisions of Limitation Act are certainly applicable and therefore the suit is barred by limitation.

62. The contention of appellant is that the documents viz., Exhibits D-39 (extract of land settlement register), Exhibits D-13 and 14 (memorandum of agreements), Exhibits D-9 to. D.12 series (property tax receipts) would show that property had already been vested with the defendants predecessors in Interest before 30.9.1951 and therefore as per Section 109 (prior to amendment), the suit filed by the plaintiff temple is hopelessly barred by limitation.

63. Section 109 of H.R. & C.E. Act prior to amendment reads as under:

109. Property of religious institution not to vest under the law of limitation after 30.9.1951. Nothing contained in any law of limitation for the time being in force shall be deemed to vest in any person the property or funds of any religious institution which had not vested in such person or his predecessor-in-title before 30.9.1951.

64. A reading of Section 109 (prior to amendment) makes it clear that the provisions of Limitation Act cannot be set up against a religious institution when the property had vested in a person after 30.9.1951. Now the contention of the appellants is that the suit property vested with the predecessors of defendants 1 to 4 in interest prior to 30.9.1951 and therefore, the provisions of would apply and the suit is barred by limitation.

65. Earlier, we have elaborately- considered various documents/proceedings between the appellants and the plaintiff temple. As pointed out earlier, under Exhibit P-4 (4.8.1958), one Munuswaml Naicker was appointed as trustee to take charge of the plaintiff temple and also its accounts, movables, immovable properties, cash balance, bank pass books, etc. In 1958-64, there had been earlier proceedings before the H.R. & C.E. Department in which the temples right over the suit property has been upheld. The plaintiff temple, managed by the de facto trustees, had been dealing with the property by paying the urban land tax and other taxes. As seen from Exhibit P-11 (dated 15.11.1973), the then trustee N. Chandran had leased out the property 625 sq.ft in Survey No. 2364/1 to one Mani. Considering Exhibit P-13- representation (dated 14.10.1988) made by the plaintiff temple, patta of the suit property was restored to its original i.e., in the name of temple. The catena of documents would clearly show that the plaintiff temple has been dealing with the property and therefore, the appellants are not right in contending that the suit property became vested in them prior to the cut-off date i.e., 30.9.1951 and invoking the unamended Section 109 of H.R. & C.E. Act cannot be countenanced.

66. After the withdrawal of the earlier suit O.S. No. 2191 of 1971 on 1973, there has been some delay in filing the present suit. But it is pertinent to note that the earlier suit was dismissed as withdrawn on 19.12.1973 with Liberty to file a fresh suit on the very same cause of action. Thereafter, as per Exhibit P-18 proceedings of the Commissioner (17.7.1979), the plaintiff temple was annexment with Kapaleeswarar temple. Because of the amalgamation of the temple and because integration of the administration, some delay might have been caused in seizing up the matter and filing the suit. In our considered view, the delay in filing the present suit for recovery of possession would not in any way take away the right of tire plaintiff temple. This is because even after 1973 H.R. & C.E. Department has been continuously dealing with the suit properties.

67. Section 109 has been substituted by Tamil Nadu Act 28 of 2003 and the amended Section 109 reads as under:

109. Central Act 36 of 1963 not to apply for recovery of properties of religious institution. Nothing contained in the , 1963 (Central Act 36 of 1963) shall apply to any suit for possession of immovable property belonging to any religious Institution or for possession of any interest in such property.

68. A reading of Section 109 makes it clear that the entire provisions of the Limitation Act, 1963 shall not apply to any suit for possession of immovable property belonging to any religious institution. Observing that the intention of the legislature for substitution of Section 109 of the Act is to protect the property and the religious institutions from being lost by adverse possession, the learned single judge held that the provision under substituted Section 109 of the H.R. & C.E. Act will apply even for pending suit.

69. Contending that Section 109 of H.R. & C.E. Act (amended Section) is not retrospective and that it is only prospective, reliance was placed upon a decision of the Supreme Court in the case of T. Kaliamurthi v. Five Gori Thaikkal Wakf, (2008) 9 SCC 306 [LQ/SC/2008/1581] ) : LNIND 2008 SC 1550 . In the said decision, considering the scope of Section 107 of the Wakf Act, 1995, which repeals , 1963 so far as Wakf properties are concerned, the Supreme Court held as under:

40. In this background, let us now see whether this Section has any retrospective effect. It s well settled that no statute shall be construed to have a retrospective operation until its language is such that would require such conclusion. The exception to this rule is enactments dealing with procedure. This would mean that the law of limitation, being a procedural law, is retrospective in operation in the sense that it will also apply to proceedings pending at the time of the enactment as also to proceedings commenced thereafter, notwithstanding that the cause of action may have arisen before the new provisions came into force. However, it must be noted that there is an important exception to this rule also. Where the right of suit is barred under the law of limitation in force before the new provision came into operation and a vested right has accrued to another, the new provision cannot revive the barred right or take away the accrued vested right.

41. At this juncture, we may again note Section 6 of the General Clauses Act, as reproduced hereine arlier. Section 6 of the General Clauses Act clearly provides that unless a different intention appears, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect, or affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or affect any right, privilege, obligation or liability acquired, accrued, or incurred under any enactment so repealed.

From the above, it is clear that the right of action, which is barred by limitation at the time when the new Act came into force cannot be revived by the change in the law subsequently. As discussed earlier, the property was not vested with the defendants or their predecessors in title before 30.9.1951 and at the time when the 28 of 2003 came into force, the right of action was subsisting and not barred and therefore the ratio of the above decision is not applicable to the case on hand.

70. Contention of appellants is that Section 109 is not retrospective and while so the learned single Judge erred in saying that the provision under substituted Section 109 of H.R. & C.E. Act will apply even for pending suits. The contention of the appellants is to be examined only in the light of the objects and reasons for substituting Section 109 by T.N. Act No. 28 of 2003. By a reading of the statement of objects and reasons, it is clear that the purpose for which the Section was enacted reads as under:

Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 ( 22 of 1959), provides that nothing contained in the law of limitation for the time being in force shall be deemed to vest in any person, the property or funds of any religious institution, which had not vested in such person or his predecessor-in-title before the 30.9.1951. The purpose for which this Section was enacted is to safeguard the properties of the religious institutions from being acquired by others by prescriptive rights, adverse possession and the like under the law of limitation. The reason for fixing the date as 30.9.1951 is that the , 1951 ( XIX of 1951) which was repealed by the said 22 of 1959 came into force on that date. With a view to protect the property or funds of the institutions and its title from being lost by adverse possession, the Government have decided to totally exclude the suit for possession of immovable properties of the religious institutions from the purview of the , 1963 (Central Act 36 of 1963) by amending the said 22 of 1959 suitably on the lines of Section 107 of the Wakf Act, 1995 (Central Act 43 of 1955).

2. The Bill seeks to give effect to the above decision.

71. We fully concur with the view taken by the learned single judge that the substituted Section 109 of H.R. & C.E. Act will apply even for the pending suits. Laying emphasis upon the documents Exhibits D-39, 31, 13, 4 and D-9 to D-12 series, learned senior counsel for appellants contended that number of documents filed by the appellants would show that the appellants have also perfected title by adverse possession. As we have discussed earlier, the property tax and sewerage charges were paid by the defendants predecessors in interest only for and on behalf of the temple. Archakas/trustees cannot claim adversely to the temple and acquire proprietary rights in the lands of the temple, where patta stands in the name of the plaintiff.

72. Considering the similar question, in VenkataNarasimha Charyulu Peddinti v. Rayasam Gangamma Pantulu and Others, AIR 1954 Mad 258 [LQ/MadHC/1952/329] , the Division Bench of this Court has held as under:

The principle above stated, namely, that a trustee cannot acquire title by adverse possession of the trust property, applies equally to quasi or constructive trustees, the managers of religious endowments and in fact to all persons who stand in a fiduciary relation to others. The She-bait of a deity cannot acquire title in the deitys property by prescription. There can be no question of adverse possession between the temple and the Archakas. The possession of the Archakas of the temple property is in a fiduciary capacity and they cannot prescribe against the temple. The Archakas cannot claim to have acquired occupancy rights either by being let into possession of the property by the landholder or by cultivating it adversely to the trust as of right for over a period of 12 years. Where a person is in possession of trust property and purports to act as trustee in defiance of the rights of the true owner, such a person cannot be deemed to be landholder under the Madras Estates Land Act. In order to make time run he would have to surrender the property to the proper, custodian or mutawalli and then enter upon it as a trespasser. It is only in such circumstances that either he or those claiming under him can justifiably say that their title had become adverse.

(emphasis supplied)

73. When the plaintiff temple claims possession on the basis of title and the defendants allege adverse possession, the burden is on the defendants to prove adverse possession. Heavy burden lies on the person putting forth a plea of adverse possession. In order to constitute adverse possession, the possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the plaintiff. In order to give a title by adverse possession, the possession must be necvi, nee clam, nec precario, that is, peaceful, open and continuous.

74. Absolutely, there is no evidence to substantiate the plea of adverse possession. All the documents produced by the defendants would only show that they were in possession of the land. As discussed earlier, the possession of defendants 1 to 4 and their ancestors were only in their capacity as Archakas/ de facto trustees. In such circumstances, mere possession of the property, however long it may be, cannot confer a title by adverse possession.

75. Once when the defendants set up a title by adverse possession impliedly, the defendants accept the title of the plaintiff temple. As discussed earlier, the defendants 1 to 4 claimed title in themselves through their ancestors. While so, the defendants cannot put forward the defence plea of adverse possession. Absolutely, there is no evidence to show that the defendants have surrendered the property to the proper custodian and then entered upon it as a trespasser. Having been in possession of the property as Archakas/ de facto trustees, it does not lie in the mouth of the appellants to raise the plea of adverse possession and this point is answered accordingly.

76. Point No. 5:- Maintainability of the Suit filed by Executive Officer:- In the trial Court, during arguments, an objection was raised as to the maintainability of the suit filed by the Executive Officer. There was no such plea taken in the written statement and no evidence was let in and during trial maintainability of the suit filed by the Executive Officer was not made an issue. Since P.W. 1 was questioned during cross examination and raised during the arguments, the plaintiff recalled P.W. 1 and filed Exhibits P-20 and P-22. Exhibit P-20 is the certified copy of Gazette containing the Scheme framed in O.A. No. 125 of 1968 dated 8.5.1970 passed by the Deputy Commissioner, H.R. & C.E. Department in respect of Kapaleeswarar temple, Mylapore. As per the proceedings in Exhibit P-18, plaintiff temple was annexed with Kapaleeswarar temple. There was no separate Executive Officer for the plaintiff temple. As per Clause 7(c) of the Scheme decree (Exhibit P-20), the Executive Officer of the Kapaleeswarar temple alone is entitled to file a Suit; but he has to obtain prior permission of the Trust Board before filing the Suit. In 1989, there was no Trust Board for the temple. Hence, under Exhibit P-21 (dated 10.1.1989), prior permission had been obtained from fit person for filing of the suit. Exhibit P-22 (dated 22.2.1989) is an order of the Deputy Commissioner, H.R. & C.E. communicated to the Executive Officer of Kapaleeswarar temple granting permission to file the suit for recovery of possession of the plaintiff temples properties in Survey No. 2364/1, 2 and 3. Case of respondent/plaintiff is that in view of Exhibits P-18 to P.22, the suit filed by the Executive Officer is maintainable.

77. The learned senior counsel for appellants contended that after amalgamation of plaintiff temple, there should have been a comprehensive scheme decree and a separate register containing plaintiff temples properties should have been prepared and only thereafter the suit should have been filed. It was then contended that the Executive Officer is not authorised to file the suit and suit filed by the Executive Officer is without authority. Placing reliance upon decision of this Court in Sri Arthanareeswarar of Tiruchenode by its present Executive Officer Sri Sabapathy v. T.M. Muthuswamy Padayachi, (2003) 1 LW 386 : LNIND 2002 MAD 627 , it was contended that even though the plea of maintainability of the suit filed by Executive Officer was not raised in the written statement, such defence, being essentially a legal plea, the appellants are competent to raise the same even though no specific plea was taken in the written statement.

78. Accepting the contention of the appellants, the learned single Judge held that even though the defendants have not set up the plea in the written statement and no issue was framed, the defendants have every right to rake up such issue as it is only a legal issue.

79. In the above said judgment Sri Arthanareeswarar of Tiruchenode by its present Executive Officer Sri Sabapathy v. T.M. Muthuswamy Padayachi (supra), the Division bench has referred to the judgment of the Supreme Court in State of Rajasthan v. Rao Raja Kalyan Singh AIR 1971 SC 2018 [LQ/SC/1971/87] : (1972) 4 SCC 165 [LQ/SC/1971/87] ),wherein the Honourable Supreme Court has held that the plea of maintainability of a suit is essentially a legal plea. If the suit, on the face of it, is not maintainable, the fact that no specific plea was taken or no precise issues were framed is of little consequence. Therefore, it is open to the parties to raise the plea of maintainability of the suit as a legal plea without there being a specific plea in the written statement or the issues.

80. In the cited case, Board of Trustees were in existence and that the Executive Officer had not been assigned with the power of filing a suit and considering the fact that the Board of Trustees was in existence at that time and only the Board of Trustees) was competent to initiate the legal proceedings and that the trustees are not made parties to the suit, the Division Bench has held that the suit filed by the Executive Officer was without authority. Applying the ratio of the above decision, the learned single Judge held that plea to the maintainability of the suit is essentially a legal plea and the appellants are entitled to raise the legal plea even though there was no specific plea in the written statement.

81.In our considered view, in all fairness, the appellants should have raised the plea of maintainability in the written statement. Since the issue was raised for the first time during the course of arguments, the plaintiff temple had produced the relevant documents Exhibits P-20 to P-22. On behalf of the plaintiff, it was submitted that as per Clause 7(c) of Exhibit P-20 Scheme decree, the Executive Officer of Kapaleeswarar temple alone is entitled to file a suit. Since in 1989, there was no trust Board for the temple, the Executive Officer has obtained permission from the fit person (Exhibit P-21) and filed the suit, As per Section 47 of H.R. & C.E. Act, pending the Constitution of Board of Trustees, the Commissioner may appoint a fit person to perform the functions of Board of trustees. Since there was no Board of trustees, the fit person/Deputy Commissioner was discharging the duties and authorised the Executive Officer to file the suit. Considering Exhibits P-18 to P-22, the learned single Judge rightly held that the suit filed by the Executive Officer representing the plaintiff temple is well maintainable and we do not find any reason to take a different view.

82.Point No. 6: Upon analysis of the evidence and materials, the learned single judge rightly held that the plaintiff temple has established that it has got title by grant made by the Government and that the defendants were only in-charge of the temple in their capacity as poojaris and managers of the temple and that they do not have any legal right to be in possession of the suit property. It is very unfortunate that the appellants, who were only in-charge of the temple as poojaris, are squatting on the property for several decades and are enriching themselves by collecting rents from the tenants through their power of attorney. The plaintiff temple is entitled for recovery of possession and the defendants are liable to deliver vacant possession of the land after the removing the superstructures put up by them. If not, the superstructures are to be removed by the process of the Court.

83.In the result, the appeal is dismissed. However, there is no order as to costs.