This appeal is directed against the judgment of Sub Court, Salem in A.S No. 37 of 1986 in confirming the judgment of the learned District Munsif, Salem in P.S No. 1255 of 1982. The plaintiffs in the suit are the appellants in the above appeal.

2. The suit was filed for declaration that the order of the defendants for eviction in Na.Ka No. 16840/82 dated 25.8.1982, issued by the 3rd defendant was illegal, void and without jurisdiction and also for permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiffs. There was a temple in the Survey No and the plaintiffs were in possession and enjoyment of the suit property for the past 30 years. The land was classified as Koil Poramboke (Temple Poramboke). The plaintiffs have constructed permanent buildings and the assessment stands in the name of the plaintiffs. Each plaintiff is the owner of one house and they are also paying house tax for the buildings. They are paying kist and other taxes to the Government. The plaintiffs were asked to vacate the land in the year 1970, as per the order of the Estate Manager, Salem and they had preferred an appeal to the second defendant. The second defendant had passed order not to vacate the plaintiffs from the property and directed to convert the land from poramboke to patta lands and to grant patta as per Order dated 14.4.1971 Even after the Order, the Revenue Authorities were collecting encroachment charges and patta has not been granted, even though order was passed to the said effect and had become final. After the order dated 14.4.1971, the land had ceased to be a poramboke and procedures alone have to be completed. After the said order, the Government has ceased to be the owner of the property and hence, the plaintiffs are entitled to be in possession of the property. The management of the temple have attempted to dispossess the plaintiffs by unlawfully claiming that they are the owners of the lands. The plaintiffs have presented a petition to the District Collector and other authorities and their representation was under enquiry. The management of the temple have instigated the second defendant to vacate the plaintiffs from the property. The second defendant has passed orders to vacate the plaintiffs. Notice was issued under Section 6 of the Tamil Nadu Land Encroachment Act demanding the plaintiffs to vacate the land by the petitioners. The plaintiffs have preferred an appeal to the second defendant and the second defendant had refused to grant stay stating that the respondents have to issue patta and comply with the order dated 14.4.1971 Therefore, the order of eviction passed by the 3rd defendant dated 25.8.82 was without jurisdiction, illegal and void.

3. In the written statement filed by the first defendant, it was contended that the claim that the plaintiffs were in possession of the property for thirty years was false. It is true that the land is classified as ‘Temple Poramboke’. It is also incorrect to state that they have been permitted to construct permanent buildings in the suit property and that the assessment stands in their name. The plaintiffs have encroached the suit property only 20 years ago and there is no question of the plaintiffs having perfected title by adverse possession. The contention that the Revenue Divisional Officer's order was final was not correct. The plaintiffs have no right to remain in possession of the property as against the real owner, as long as no patta has been granted in their favour and their possession continues to be unlawful. The defendants are entitled to evict the encroachment by following due process of law. The order of eviction has been passed lawfully as against the plaintiffs, who are in lawful possession of the property. Therefore, they are not entitled to any relief of permanent injunction. An appeal provision is provided under the Tamil Nadu Encroachment Act. Hence, the suit filed without exhausting the alternative remedy was liable to be dismissed.

4. On consideration of the said contentions and evidence, the trial Court held that as no relief was claimed against the temple, there was no necessity to implead the temple. The trial Court also hold that in view of the G.O.Ms No. 1300 dated 26.6.1960, prohibiting any assignment of the land, the Revenue Divisional Officer could not have validly recommended assignment of the land, the plaintiffs were found to be in encroachment of the land and that therefore, they are liable to be evicted from the land. The Appellate Court also concurred with the said findings and dismissed the appeal. Hence, the present Second Appeal by the plaintiffs.

5. The following substantial question of law was framed at the time of the admission of this appeal.

“Were not the courts below in error in overlooking the fact when the suit property is a temple site, Act 3 of 1905 cannot be applied to the suit property?”

6. The learned counsel for the appellant very vehemently and strenuously contended that the provisions of the Land Encroachment Act 1905 (hereinafter called as the Act’), cannot at all be invoked in respect of the land in question. According to him, Section 2 of the Act exempts the applicability of the Act to ‘Temple sites’ or house sites or backyards etc. He would further contend that even if the property was to be considered as Grama Natham, the plaintiffs were entitled to continue in possession and no action could be taken to remove them under Land Encroachment Act. For this proposition, strong reliance is placed on the judgment of E. Padmanabhan, J. in 1998 3 L.W 603 (Thillaivanam and another v. the District Collector, Chennai Anna Dist. at Kanchipuram and others) in respect of his contention that provisions of the Land Encroachment Act cannot be invoked in respect of Grama Natham.

7. Reliance is also placed on the following judgments in respect of his contention: —

a) 62 L.W 204 = 1949 1 MLJ 290 (Palani Animal v. L. Sethurama Aiyangar)

b) 72 L.W 767 = 1959 2 MLJ 513 (S. Rangaraja Iyengar and another v. Achikannu Ammal and another)

c) 87 L.W 531 = 1974 TNLJ 145 (State of Madras v. Kasthuri Ammal and others)

8. The learned Government Pleader, however contends that the land in question had been classified as ‘Temple Poramboke’ in the revenue records. Therefore, the said land is not exempted from the applicability of the Land Encroachment Act. The term ‘Temple Poramboke’ is different from ‘Temple Site’ and hence, does not fall under any of the categories, viz., “temple site” or “Grama Natham” which are stated to be exempted from the provisions of the Land Encroachment Act.

9. It is not necessary to deal with the decisions relied upon by the learned counsel for the appellant in the context of applicability of the provisions of Land Encroachment Act with reference to the house sites and Grama Natham. Admittedly, the suit property stands classified as Temple Poramboke. In fact, this is not disputed by the plaintiffs and they have themselves pleaded so, in their plaint to the effect that the property is classified as Temple poramboke. Therefore, the statement of law as contained in the said judgments dealing with the grama natham or house site cannot have any relevance to the facts of the present case. It is also another question as to whether the said judgments cited above and relied upon by the learned counsel for the appellant, would come to the rescue of the persons other than the landholder, in the sense, the original grantee and whether it would apply to encroachers. In my opinion, the Government cannot seek to evict the original grantee of his legal heirs. On the other hand, a licensee, much less an encroacher will have no right to resist the Government from evicting them. But it is not necessary to go into the said issues in the present case having regard to the classification of the land as Temple poramboke.

10. I am inclined to agree with the contention of the learned Government pleader that the nature of the land being temple poramboke it cannot be treated as equal to “Temple site”. The word ‘Temple Site’ has to be assigned only the restricted meaning which is also the natural meaning, viz., the site on which the temple or its appurtenances are situated and the actual premises of the temple. It will not include other properties belonging to the temple. If the legislature had intended to give a wider meaning and application and intended to include the lands or properties belonging to the temple, then the legislature could have as well used the expression ‘Temple Lands’ or ‘Temple Properties’. The expression ‘Temple Poramboke’ can only signify one of the species of poramboke lands. Such a land does not cease to be a poramboke property over which the Government will have control subject only to the rights of the temple. It is certainly a property which is under the control of the Government and amenable to the provisions of the Land Encroachment Act. The Exhibits filed by the plaintiffs themselves disclose that they have been issued with B-Memo for several years.

11. Therefore, I am unable to sustain the contention of the learned counsel for the appellant that the provisions of the Land Encroachment Act cannot be invoked. The further contention that the order of the Revenue Divisional Officer dated 14.4.1971 “Ex.B-4” would have any binding force, cannot also be accepted. Such an order has been passed by the Revenue Divisional Officer, Salem on a representation made by the plaintiffs as against the orders passed by the Estate Manager, Salem, to evict the encroachers from the suit property, While disposing of the appeal, the Revenue Divisional Officer has merely stated his opinion that the encroachments need not be evicted and that the classification of the land may be transferred and assigned to the temple. A perusal of the said order shows that the appeal by the petitioners had not been allowed. But the Revenue Divisional Officer has merely expressed his recommendations or opinion to the effect that the encroachments need not be evicted and that the classification may be transferred. The Revenue Divisional Officer has no jurisdiction to pass such an order, either to assign the land or to convert the classification of the land. Such extraneous opinions and expressions and suo motu recommendations which have no legal sanctity or validity cannot have any binding effect on the Government. A reading of the order discloses that the Revenue Divisional Officer had chosen to plead for the encroachers and absolutely, no finding is given to the effect that they have any legal right. Therefore, the Courts below have rightly held that such an order deserves to be ignored. I am unable to appreciate as to how such an order would confer on the plaintiffs any rights to the extent of claiming that as a result of the said order, they have become the owners of the land or that they have any right to be assigned with the land.

12. Therefore, I do not find and merits in the above appeal and the same is, therefore, dismissed.

Pr./VCS.