THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.395 OF 2011
JUDGMENT:
Aggrieved by the Judgment (Award) dated 31.03.2011 in O.A.No.227 of 2010 (Old No.33 of 2005 of D.C.Hyd.) (hereinafter will be referred as 'impugned award') passed by the learned A.P. Endowments Tribunal at Hyderabad (hereinafter will be referred as 'the Tribunal'), the respondents/opposite parties has filed the present Civil Miscellaneous Appeal.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned Tribunal.
3. The brief facts of the case are that as under:
a) The applicant No.1 i.e., the Assistant Commissioner, Endowments Department, Mahaboobnagar has forwarded the proposals submitted by applicant No.1 i.e., Sri Anjaneya Swamy Temple, Budamarsu Village, Weddepally Mandal, Mahaboobnagar District represented by its Executive Officer under Section 83 of the A.P.Charitable and Hindu Religious Institutions and Endowments Act (hereinafter will be referred as 'the Act') for eviction of the respondents from the petition schedule property i.e., Ac.13.25 cents in Sy.No.79 of Budamarsu Village, Waddepally Mandal, Mahaboobnagar 2 MGP,J CMA_395_2011 District belonging to applicant No.2. It is alleged in the said proposals that the respondents, who are the tenants, after expiry of lease period, have been continuing in the property unauthorisedly without any valid lease extension since long time and without approval orders of the competent authority. The respondents were not even regular in paying amounts towards damages for use and occupation and also failed to vacate the property despite issuing notices that they fell in arrears towards damages for use and occupation and that the schedule property fetch huge amount if leased out as per rules in public auction. The application submitted by the applicant No.1 was taken on file and notice under Section 83 (2) of the Act was issued to the respondents to put forth their defence.
b) The respondents filed counter denying the averments of the application Smt. Bingi Yellamma in obedience to this Court's orders dated 09.07.1992 in W.P.No.11549 of 1988, had invoked the provisions under Section 87 of the Act by filing a petition before the Deputy Commissioner within stipulated time as per Clause Nos.1 and 2 and in furtherance of clause 3 of the order, she paid a sum of Rs.2,000/- through Bank. However, the petitioners ignoring all the aforesaid obligations merely at the best of Smt. Leelavathamma without ascertaining as to 3 MGP,J CMA_395_2011 whether she is Archaka or not, filed the present O.A.No.33 of 2005 before the Court saying that the respondents as tenants and not paying rents. The petitioners did not furnish the extract from the book of endowments due to non availability of any entry with them in respect of the above land and also about the Archakatwam of subject temple in favour of Smt. Leelavathamma.
c) It is further contended that the grandmother of respondent Nos.2 to 5 i.e., Smt.Bingi Eedamma purchased the said land from Venakta Seshaiah under document dated 21.03.1952 and since then Smt. Bingi Eedamma and her daughter i.e., Smt. Yellamma and thereafter respondent Nos.2 to 5 are in possession and enjoyment of the said land. The entries from the extract of Protected Tenancy Register officially prepared by the Revenue Department in the year 1951 reveals that Krishnamacharyulu is the Inamdar and whereas Bingi Thimma is the protected Tenant. The entries in Sethwar 1348 Fasli or equivalent to 1939 A.D. reveals the name of Poojari Krishnamacharyulu as a Khatedar/Inamdar. The extract of Inam Register 1360 Fasli or equivalent to 1939 AD relied upon by the petitioners having filed before the District Revenue Officer, Mahaboobnagar in Case No. A1/3/ROR/1985 shows 4 MGP,J CMA_395_2011 the Khatedar's name against Sy.No.79 at S.No.39, as Poojari Krishnamacharya. The entries of Khasara Pahani at column No.5 shows Poojari Vani Chenu and Maddur Eedamma's (grandmother of respondent Nos.2 to 5) name was incorporated as an occupant, which is a conclusive proof that the land is not temple land. In Pahani/Adangals, the name of Krishnamachary as Poojari of Anjaneya Swamy is written indicates as it is treated as Chirunama, but the Temple's name is not recorded in Pahani/Adangal.
d) As there was no entry of Temple's name in Revenue records and Endowment Records, Smt. Leelavathamma, who was not amicable to the family of the respondents and their ancestors, has applied to the District Revenue Officer, Mahaboobnagar vide Lr. No.B1/2308/84, dated 16.12.01984 under the repealed provision of Section 15 of the Record of Rights Regulation 1357 Fasli for the correction of entries by removal of name of Smt. Maddur Edamma from column No.13 of Khasra Pahani in 1954-55 and to insert by way of substitution of the name of "Anjaneya Swamy Temple) in the patta column and correct the same in the interest of Temple. The District Revenue Officer, Mahaboobnagar disposed of the said petition of Smt. Leelavathamma in Case No.A1/3/ROR/85 5 MGP,J CMA_395_2011 by order dated 21.05.1986. It is the root case for invoking the litigation by Leelavathamma that the Court has no jurisdiction to resume the Inam land to original inamdar and the case does not attract the provisions of A.P. (T.A.) ROR in Regulations, 1358 Fasli and remanded to the Sub-Collector, Gadwal for taking action under Section 74 of the Act in File No. B/2697/86 dated 11.07.1986. The Sub Collector has issued directions to the Mandal Revenue Officer, Waddepally to resume the said land in Sy.No.79 to the Government custody.
e) The appeal preferred against the District Revenue Officer, Mahabubnagar in Case No.KB6/6453/86 was disposed of on 21.02.1988 in W.P.No.8077 of 1988 and subsequently W.P.No.11549 of 1988. The respondents have complied with the orders in W.P.No.11549 of 1988 and for no fault on the part of the Respondents, the claim has been initiated on the flimsy allegations by the petitioners on the pretext that the Deputy Commissioner, Endowments Department, Hyderabad has informed through Lr.No.L.Dis.B2/7675/99, dated 20.11.1999 that Bingi Yellamma has not filed any O.A. before the Deputy Commissioner in this matter. The petition filed by the Assistant Commissioner, Endowments Department, Mahaboobnagar as many as 13 years after the disposal of W.P.No.11549 of 1988 is 6 MGP,J CMA_395_2011 neither tenable nor warranted in the eye of law and it is fit to be dismissed in limini.
f) During the course of enquiry, on the behalf of the applicants, Smt. Leelavathi was examined as PW1 and got marked EXs.A1 to A5. On the other hand, on behalf of respondents, RWs 1 and 2 were examined and Exs.B1 to B25 were got marked. After considering all the aspects, the learned Tribunal has allowed the application by directing the respondents to vacate and hand over the schedule premises within one month by written intimation to the petitioners or else to vacate the respondents or anybody claiming through them with the help of police aid. Aggrieved by the same, the respondents have preferred the present Civil Miscellaneous Appeal.
4. Heard both sides and perused the record.
5. It is the contention of the learned counsel for the claimants that the learned Tribunal erred to have proceeded on the erroneous presumption that the mother of the respondents has not filed any application under Section 87 of the Act and has not complied with the orders of the High Court in W.P.No.11549 of 1988 dated 09.07.1992. As seen from the record, aggrieved by the orders dated 24.02.1988 passed by the 7 MGP,J CMA_395_2011 District Revenue Officer, Mahabubnagar confirming the order dated 11.07.1986 passed by the Revenue Divisional Officer, Gadwal, the appellant No.1 i.e., Bingi Yellamma has filed W.P.No.11549 of 1988, wherein this Court advised the petitioner to invoke the provisions contained under Section 87 of the Act within one month from the date of order and also ordered that the petitioner shall not be disturbed from the possession of the land in question subject to deposit of Rs.2,000/- before the Assistant Commissioner Endowments, Mahabubnagar. The learned Tribunal in the impugned order observed that the petitioner failed to comply with the orders of this Court in W.P.No.11549 of 1988. In order to establish that the petitioner has complied with the orders of this Court in W.P.No.11549 of 1988, the claimants relied upon Exs.B1 and B2. Ex.B1 is the copy of application alleged to have been filed under Section 87 of the Act and Ex.B2 is the copy of cheque for Rs.2,000/-.
6. It is further contention of the claimants that until and unless claim under Section 87 of the Act is determined, the proceedings under Section 83 of the Act are not maintainable. However, the learned Tribunal rejected Exs.B1 and B2 holding that they are self - serving and has been fabricated for the 8 MGP,J CMA_395_2011 purpose of defending the application. As seen from the copy of Ex.B1, there is no signature of the petitioner on each and every paper and there is no evidence to show that proper court fee was paid for filing such petition before the Assistant Commissioner. If at all the claimant has filed petition under Section 87 of the Act, certainly she could have pursued the same and initiated necessary steps thereafter. Except filing the copy of petition, the claimants have not filed any material to establish that the claimants have complied with the orders of this Court in W.P.No.11549 of 1988. Furthermore, this Court has directed the Deputy Commissioner in W.P.No.11549 of 1988 to adjudicate the petition filed by the petitioner after affording reasonable opportunity within six months thereof. If at all the petitioner has filed petition under Section 87 of the Act and the Deputy Commissioner failed to adjudicate the dispute within six months as per the directions of this Court, certainly the claimants were at liberty to move a contempt application against the Deputy Commissioner for not complying with the orders of this Court. It is not the case of the claimants that in spite of their regular persuasion, the learned Commissioner failed to adjudicate the said application till date. Thus, any amount of suspicion arises with regard to compliance of the orders of this Court by the claimants. Moreover, the Deputy Commissioner, 9 MGP,J CMA_395_2011 Endowments Department, Hyderabad has informed through Lr.No.L.Dis.B2/7675/99, dated 20.11.1999 that Bingi Yellamma has not filed any O.A. before the Deputy Commissioner in this matter.
7. In the order dated 09.07.1992 in W.P.No.11549 of 1988 this Court has also observed that if the petitioner fails to file the petition within the stipulated time, the order will cease to have effect and respondents are at liberty to enforce the impugned orders. Since the claimants have not complied with the orders in W.P.No.11549 of 1988, the respondents therein were at liberty to enforce the orders dated 24.02.1988 passed by the District Revenue Officer, Mahabubnagar confirming the order dated 11.07.1986 passed by the Revenue Divisional Officer, Gadwal.
8. It is contended by the claimants that entire proceedings have been initiated at the instance of one Leelavathamma and is purely a personal litigation and the applicant No.1 ought not to have given a helping hand to the said Leelavathamma by filing the O.A. It is pertinent to note that Smt. Leelavathamma is also claiming her rights over the subject property and in pursuance of the same she has also filed O.S.No.20 of 2001 to declare the title in respect of subject property on the name of Sri Anjaneya 10 MGP,J CMA_395_2011 Swamy Deity, Budamarsu Village but the same was dismissed vide Judgment, dated 19.09.2003, wherein Smt. Leelavathamma was examined as PW1. Smt. Leelavathamma as PW1 deposed that defendant No.1 therein i.e., Bingi Yellamma failed to comply with the orders of the High court. PW1 admitted in her cross examination that her grandsons along with her were performing poojas and that though defendant No.1 is in possession of the suit properties, she is not paying any amount either to PW1 or to Endowment Department. PW1 also admitted that suit land belongs to temple only; only Endowment Department is entitled for possession of the suit property and plaintiff is entitled for lease amount for maintenance of the temple. Thus, it is clear that Smt. Leelavathamma is agitating her rights with regard to lease amount to maintain the temple. It is not the case of the claimants that Smt. Leelavathamma is not the Archaka of the said temple. Hence, it cannot be said that it is a personal litigation of Smt. Leelavathamm, more particularly, when she is claiming lease amount for the maintenance of the temple.
9. It is further contended by the claimants that there are absolutely no records whatsoever to establish that the land belongs to the temple and that the land is purely a private land 11 MGP,J CMA_395_2011 of the respondents having purchased by their mother from the Inamdar way back in the year 1952 and ever since they are in possession of the property and at no point of time nor anywhere in the record, which have mentioned that the land belongs to the temple. As seen from the judgment in O.S.No.20 of 2001 the learned Senior Civil Judge at Gadwal observed that Sri Anjaneya Swamy Temple is the owner of the subject property; defendant is in possession without paying any lease either to temple or to Archakatvam; it is the duty of the Endowment Department to take action against the defendant No.1 for taking possession of the land. In support of their contentions, the claimants got examined RW2, who deposed that the subject property is the private land of the poojari and not temple land. As seen from the impugned judgment, RW2 gone to the extent of deposing that there is no Anjaneya Swamy Temple in the past or at present and that he worked as Mali Patel of the Village Budamarsu only for the period 1972-78. Thus, it is evident that RW2 is not aware of the facts of the case. Though RW1 was examined on behalf of the claimants, he went to the extent of deposing that the subject property is their own private dry land, which is quite contrary to the version of the claimants in the pleadings. However, RW1 again admitted that the documents they placed reliance show the land referred in the revenue 12 MGP,J CMA_395_2011 records as Poojarivari Chenu. RW1 further admitted that the subject land belongs to Poojari Krishnamachari and under him his father's brother Bingi Thimmanna was tenant or Kouldar and not a protected tenant even. Hence, it is clear that the claimants have improved their version in the evidence when compared to their pleadings. If at all the grandmother of the claimants has purchased the land in the year 1952, then what made RW1 to depose that his father's brother Bingi Thimmanna was tenant or Kouldar of the land belonging to Poojari Krishnamachari. The claimants in Ex.B1 claiming that their grandmother i.e., Smt.Bingi Eedamma purchased the subject property from Venakta Seshaiah under document dated 21.03.1952; since Krishnamacharyulu died issues less, his brother Venkata Seshsaiah sold away the land to Smt. Bingi Eedamma in the year 1952. On the other hand, in the very same Ex.B1 the claimants are again contending that Smt. Bingi Eedamma was in occupation of the subject land since times immemorial and the same was devolved to her from her ancestors. The claimants cannot approbate and reprobate on the same aspect in two different ways. Thus, it is clear that the claimants have approached the Court with unclean hands.
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10. The Tribunal ought to have seen that the revenue authorities had also issued pattedar passbooks in favour of the mother of the respondents and it should have established that it is purely a private land and not a temple land. It is contended that even as per the version of claimants the entries of Khasara Pahani at column No.5 shows Poojari Vani Chenu and Maddur Eedamma's (grandmother of respondent Nos.2 to 5) name was incorporated as an occupant, which is a conclusive proof that the land is not temple land. It is settled law that entries in the revenue records do not conclusively confer title to a property, nor do they have any presumptive value on the title and they only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question. Though the claimants are claiming that their grandmother purchased subject lands in the name of her daughter through registered sale deed dated 21.03.1952, there is no material produced by the claimants to substantiate the same. Even as per the above said Khasara Pahani at column No.5 the name of Maddur Eedamma's name was shown as occupant apart from mentioning Poojari Vani Chenu. As stated supra, the entries in the revenue records do not conclusively confer title to a property and those entries are only meant for the purpose of collecting revenue in respect of the land in question. Thus, based on mere 14 MGP,J CMA_395_2011 entries in the revenue records, title of the subject land cannot be decided.
11. It is further contended by the claimants that the learned Tribunal has made much of the fact that the mother the respondents namely Yellamma did not choose to contest the suit filed by Leelavathamma. Admittedly, Smt. Bingi Yellamma has not contested the suit, though she was shown as defendant No.1 in the said suit. Though the suit filed by Smt. Leelavathamma was dismissed, the learned Judge has made certain observations with regard to wrongful possession of the subject property with Smt. Bingi Yellamma. It is the contention of the claimants that the evidence in a suit, which is dismissed cannot be a basis for allowing the application filed under Section 83 of the Act and in support of the same, the learned counsel for the claimants/appellant relied upon a decision of the High Court of Chhattisgarh in Shriram v. Suresh Kumar (dead) 1, wherein it was observed that against adverse finding, if any, has been recorded against the defendants, no appeal lies under the provisions of Civil Procedure Code against such finding, more particularly, when the said suit was dismissed finally. On one hand, the claimants are contending that the 1 2020 Law Suit (Chh) 314 15 MGP,J CMA_395_2011 findings in the suit are binding the parties to the suit proceedings and thereby the proceedings under Section 83 of the Act are not maintainable and on the other hand again contending that the evidence in a suit, which is dismissed cannot be a basis for allowing the application filed under Section 83 of the Act. It is pertinent to note that the learned Tribunal has not allowed the application for eviction of the claimants from the subject property solely based on the findings in O.S.No.20 of 2001 and in fact, while allowing the said application, the learned Tribunal has considered various aspects such as the evidence of PW1 and admissions of RWs 1 and 2 in OA claim, documentary evidence in the form of Exs.A1 to A5 and Exs.B1 to B25 and arrived to a conclusion. It is pertinent to note that the Smt. Leelavathamma, who is PW1 in O.S.No.20 of 2001, was also examined as PW1 in O.A.No.227 of 2010. Thus, it is clear that the learned Tribunal has considered the evidence of Smt. Leelavathamma, who was examined as PW1 in O.A.No.227 of 2010, which is subject case in this matter.
12. Even for the sake of arguments, if at all the above contentions of the claimants that the temple land is a private property is considered as true and correct, they are not entitled 16 MGP,J CMA_395_2011 to claim any right over subject property in view of non compliance of the orders of this Court in W.P.No.11549 of 1988.
13. In view of the above discussion, viewed from any angle, this Court is of the considered opinion that there is no infirmity or illegality in the impugned judgment passed by the learned Tribunal and thereby, interference of this Court with the impugned judgment is unwarranted. Therefore, this Civil Miscellaneous Appeal is devoid of merits and liable to be dismissed.
14. Accordingly, the Civil Miscellaneous Appeal is dismissed.
There shall be no order as to costs. The appellants/respondents are directed to vacate and hand over the schedule premises to the respondents/applicants within one month from the date of receipt of copy of this order, failing which, the respondents/applicants are directed to proceed in accordance with law.
Pending Miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI Date: 18.11.2023 AS