Judgement

BACHAWAT, J. : In the village of Thenkarai in the Madurai District there is an ancient temple of Sri Thirumoolanathaswami. Inams were granted by Hindu kings for performance of services of watchman, palanquin-bearer, background music player, dancing girl, musical instrument player, mason, blacksmith, carpenter, potter, washerman connected with the temple. The inams were confirmed by the British Government. For over 80 years, the inams were in the enjoyment of alienees from inamdars. By an order passed on April 10, 1947 under Sec.44-B of the Madras Hindu Religions Endowments Act, the Revenue Divisional Officer, Usilampatti resumed the inam lands and regranted them to the temple. On October 17 1947, his order was confirmed on appeal by the District Collector. The Revenue Divisional Officer and the District Collector held that the inams comprised both melwaram and kudiwaram rights in the land. The orders were passed on notice to the alienees. The alienees instituted a suit in the Court of the Subordinate Judge, Madurai under the proviso to Section 44-B (2) (d) (ii) asking for a decree declaring that the inam grants consisted of the melwaram only. The suit was withdrawn to the Court of the District Judge, Madurai and registered as O. S. No. 3 of 1954. They instituted another suit in the Court of the Subordinate Judge, Madurai, asking for a decree declaring that the order of the Collector dated October 17, 1947 was a nullity. This suit was transferred to the Court of the District Judge and registered as O. S. No. 4 of 1954. The District Judge dismissed O. S. No. 3 of 1954. He decreed O. S. No. 4 of 1954 and declared that the order resuming the inam lands was illegal and a nullity. The plaintiffs filed an appeal registered as A. S. No. 746 of 1954 in the High Court of Madras from the decree in O. S. No. 3 of 1954. The High Court, dismissed the appeal. The State of Madras filed an appeal registered as A. S. No. 808 of 1954 from the decree in O. S. No. 4 of 1954. The High Court allowed the appeal and dismissed the suit with respect to all the inams except the Dasi inam. Regarding the Dasi inam, the High Court dismissed the appeal as the inam was enfranchised and could not be resumed. It is from the decree of the High Court dismissing the suits in respect of the other inams that the plaintiffs have filed these appeals after obtaining special leave.

2. The two courts concurrently held that the inams comprised both the Kudiwaram and the melwaram. The District Judge held that the right to resume an inam could not be extinguished by adverse possession, and that, in any event the claim of adverse possession was not established. The High Court held that assuming the right of resumption could be so extinguished, it was not established that the plaintiffs and their predecessors-in-title were in possession of the inam lands adversely to the inamdars or the Government. The District Judge held that the inams were personal inams burdened with services and the order of resumption was therefore illegal and a nullity. The High Court reversed this finding and held that the inams were for performance of services connected with the temple and were resumable under Section 44-B. The District Judge held that Section 44-B was retrospective in operation. On this last point, the High Court did not express any opinion.

3. It may be noted that 0. S. Nos. 3 and 4 of 1954 were tried along with 0. S. Nos. 1 and 2 of 1954 and disposed of by the District Judge by a common judgment. O. S. Nos. 1 and 2 of 1954 related to inams granted for performance of puja in another temple. From the decrees passed in 0. S. Nos. 1 and 2 of 1954, there were appeals to the High Court and subsequently appeals to this Court. The judgment in those appeals is reported in Roman Catholic Mission v. State of Madras, 1966-3 SCR 283. One of the points in all the four suits was whether Section 44-B was ultra vires the powers of the legislature. This Court held that the Provincial Legislat