Sri Vegilingeswara Swamy Vari ... vs Amanchi Sree Venkateswara Swamy, ...
2021 Latest Caselaw 52 AP

              HON'BLE SRI JUSTICE M.VENKATA RAMANA

            CIVIL MISCELLANEOUS APPEAL No.1047 of 2017

JUDGMENT :

This Civil Miscellaneous Appeal is directed against the order of

A.P.Endowments Tribunal at Pedakakani in O.A.No.2575 of 2010 (old

O.A.No.230 of 2009) dated 27.02.2017.

2. The 1st respondent temple before the Endowments Tribunal is

the appellant. The respondents 1 and 2 were the petitioners and whereas

the 3rd respondent was the 2nd respondent before the Endowments

Tribunal.

3. The respondents 1 and 2 filed a petition under Section 87(1)(c)

and Section 45 of A.P.Charitable and Hindu Religious Institutions and

Endowments Act, 1987 (For short, Act 30 of 1987) against the appellant

and the 3rd respondent to declare that they are the owners of the petition

schedule site and to delete the entries in the Property Register in respect

thereof. They further requested to direct the respondents not to interfere

with the possession and enjoyment of the petition schedule site in any

manner.

4. The petition schedule site shall be referred to hereinafter as, 'the

disputed site'. It is described in the petition as under:

"District : West Godavari Sub District for Registration : Chintalapudi Mandal : Chintalapudi Village : Chintalapudi S.No. : 913/1, Asst. No.534 Extent : 436 Sq. yards vacant site at present

Boundaries East : 54' Panchayat Road South : 65 hours and site of Jalli Sarveswara Rao West : 66 Garlapati Ramakrishna's house site North : 65' Panchayat Road MVR,J CMA No.1047 of 2017

The vacant site of 436 Sq.yards within the above mentioned boundaries with all easementary rights etc."

5. The case of the respondents 1 and 2 is that the disputed site is

the ancestral property of the 1st respondent which they have been in

possession and enjoyment for more than 90 years. Their contention is

also that there were two Mangalore tiled houses in that site that were

removed by them in the year 1987 and that they constructed a compound

wall around this site.

6. Further contention of the respondents 1 and 2 is that on

19.02.1987 the appellant issued registered notice for the first time to the

father of the 1st respondent claiming the disputed site with false

allegations and when his father brought to the notice of the then

Executive Officer of the appellant temple, he was satisfied with their claim

without pursuing the matter further. It is the further case of the

respondents 1 and 2 that the Executive Officer of the appellant temple

again issued a registered notice dated 03.07.1989 with similar false and

baseless allegations which they replied through their Advocate setting

forth the true facts on 11.07.1989. Thereupon, there was no action

according to the respondents 1 and 2, on the part of the appellant temple

and that they came to know that the staff of the appellant temple were

influenced whereby they got up certain entries in the register as if the

disputed site belonged to this temple without their knowledge.

7. It is the further contention of the respondents 1 and 2 that the

1st respondent executed a registered gift deed dated 30.04.2007 in favour

of the 2nd respondent gifting away the disputed site. Since they

apprehended action including their ejectment from this site, according to MVR,J CMA No.1047 of 2017

the respondents 1 and 2 they were constrained to lay the petition before

the Endowments Tribunal for the reliefs stated above.

8. The appellant as well as the 3rd respondent resisted the claim of

the respondents 1 and 2 on identical grounds particularly contending that

the disputed site is shown in the register of properties maintained under

Section 43 of Act 30 of 1987 and therefore it absolutely belonged to this

temple. Questioning the right and interest claimed by the respondents

1 and 2 as well as title to the disputed site they also contended that the

respondents 1 and 2 are not in possession and enjoyment of the same at

any time.

9. Basing on the pleadings, the Endowments Tribunal settled the

following issues for trial:

"1.Whether the schedule property is unendowed and absolute property of the petitioners as claimed?

2. To what result?"

10. The 1st respondent examined himself as P.W.1 apart from two

other witnesses P.W.2 and P.W.3 in support of their contention while

relying on Ex.P1 to Ex.P11 at the trial. The then Executive officer of the

appellant temple was examined as R.W.1 through whom Ex.R1 was

marked in the course of trial before the Tribunal.

11. On the material, the tribunal accepted the contention of the

respondents 1 and 2 particularly having regard to long possession and

enjoyment of the same basing on the documentary evidence produced by

them. While questioning the manner of making entries in Ex.R1 when

there is dispute with reference to right, title and interest, sought to be MVR,J CMA No.1047 of 2017

projected by the appellant since the year 1987, they were directed to be

set aside.

12. Sri K.Madhava Reddy, learned Standing Counsel for the

appellant temple and Dr.Sastry Jandhyala, learned counsel for

respondents 1 and 2, addressed arguments in the matter.

13. The learned Standing Counsel for the appellant also referred to

rulings of this Court in Vinjamuri Rajagopala Chary and Ors. Vs.

Principal Secretary, Revenue Department, Hyderabad and Ors.1

and Katari Seetha Rama Raju Vs. Ranganadha Swamy Temple

and Ors.2, in support of his contention.

14. Now, the following points arise for determination:

"1. Whether the respondents 1 and 2 established their right,title and interest to the disputed site against the appellant temple?

2. Whether the order of the Endowments Tribunal under appeal is proper and requires to be confirmed?

3. To what relief?"

Point No.1:

15. The contention of the respondents 1 and 2 is that the disputed

site is their absolute property where there were two tiled houses. It is

further their contention that these houses were demolished in the year

1987 and a compound wall was raised around this site. Thus, they

claimed that they have been in continuous possession and enjoyment of

this site.

.2016(2) ALD 236

.2020(1) ALD 385 MVR,J CMA No.1047 of 2017

16. Two notices were issued on behalf of the appellant temple

dated 19.02.1987 and 03.07.1989 to the respondents 1 and 2. The notice

dated 19.02.1987 was not produced in evidence on behalf of the

respondents 1 and 2. Ex.P4 dated 03.07.1989 bears relevance in this

matter. There is a reference in Ex.P4 notice to the earlier notice dated

19.02.1987. This fact of issuance of notice itself indicated the possession

and enjoyment of this site by the respondents 1 and 2 of the disputed

site. Though it is stated in Ex.P4 notice that there was a tiled house and

other structures in the disputed site as a quarters for Archaka of the

appellant temple and that this site stood recorded in the Government

records being the site of the appellant temple, no material was produced

before the tribunal in the course of trial in respect thereof.

17. In Ex.P5 reply dated 22.07.1989 to Ex.P4 notice, of the father

of the 1st respondent through his Advocate, there is denial of right and

interest claimed by the appellant temple. There is also reference in Ex.P5

reply to R.P.No.199 of 1981 on the file of Joint Commissioner,

Endowments Department, A.P.,Hyderabad to which the then Executive

Officer of the appellant temple was a party, where, by an order dated

05.06.1982 the right of the father of the 1st respondent to function as

Archaka of the appellant temple was upheld. It is also stated in this reply

notice that the tiled house in the disputed site bearing Assessment No.534

of Amanchivari street of Chintalapudi village bearing Door No.7/75 being

absolute property of father of the 1st respondent, denying that it is the

property of the appellant temple. No action was taken thereafter, by the

appellant temple against the father of the 1st respondent.

MVR,J CMA No.1047 of 2017

18. Thus, exchange of these notices indicated right and interest

claimed by the respondents through their predecessors to the disputed

site.

19. Ex.P1 refers to house tax demanded with reference to the

structures in the disputed site, from the years 1947-48 to 1986-87 as an

extract of property tax demand register. Ex.P2 is a statement dated

16.01.1941 in respect of occupation of the house in the disputed site, with

a tiled house by Sri Amanchi Venkatappaiah, the predecessor of the 1st

respondent. It is traceable since the years 1918-19 upto 1938-39. It was

issued by then President of Gram Panchayat, Chintalapudi.

20. The respondents 1 and 2 relied on Ex.P9 registration extract

of the sale deed dated 10.10.1961 between two third parties, where there

is reference to the house of Sri Amanchi Seetharamaiah as the eastern

boundary of the subject matter of this document. The property described

therein is in S.No.913.1A.

21. Ex.P10 is the proceedings of the Executive Officer, Gram

Panchayat, Chintalapudi dated 20.03.1987 whereby permission was given

to the father of the 1st respondent, to construct a house in the disputed

site, description of which is given in the plan enclosed to it. This house

bears Door No.7/75 with Assessment No.534 at Chintalapudi.

22. Thus, the documents placed by the respondents 1 and 2

confirmed that they were in possession and enjoyment of the disputed

site from the times of their ancestors.

23. The 1st respondent as P.W.1 deposed in respect thereof. Cross-

examination of this witness on behalf of the appellant temple did not elicit MVR,J CMA No.1047 of 2017

any material to discredit his testimony and his claim to the disputed site.

P.W.2 Sri Podili Somayya and P.W.3 Kanagala Subbarao, residents of

Chintalapudi supported the version of P.W.1. Cross-examination of these

witnesses on behalf of the appellant temple did not elicit any material to

discredit their testimony.

24. The entire case of the appellant is dependent on the entries in

Ex.R1 register. Apparently such entries were made in the year 1995. By

then there was a dispute with reference to its right, title and interest in

view of notices exchanged in between these parties, last of which is Ex.P4

dated 03.07.1989. In presence of such dispute, without taking note of it,

the Executive Officer of the appellant temple or the concerned authorities

of Endowments Department, could not have directed causing such entries

in the register in terms of Section 43 of Act 30 of 1987.

25. In cross-examination the 1st respondent (P.W.1) stated that he

had verified the above register of the appellant temple and that

thereupon, he did not issue any notice to this temple questioning such

entries. He added that he addressed a letter to Assistant Commissioner of

Endowments questioning these entries requesting to delete the same.

Of course he did not produce a copy of it in this case. However, it is not a

matter of any significance in this case, in as much as by the time the

appellant temple was declared an endowment, as stated in the counters

of the appellant as well as the 3rd respondent by the proceedings of the

Commissioner of Endowments Department, Hyderabad dated 20.03.1987

there was already a pending dispute in respect of the site in question.

Declaration of this temple in terms of Sec.6 of this Act 30 of 1987 cannot

in any manner partake inclusion of the disputed site as its property.

MVR,J CMA No.1047 of 2017

26. Except the entries in Ex.R1 which are in the nature of self-

supporting statements for the appellant and the 3rd respondent, no other

material was placed before the Tribunal in the course of trial. Cross-

examination of R.W.1 clearly reflected this situation. He clearly admitted

that he did not know the basis on which such entries were made and the

documents considered for this purpose. He also admitted that the entries

in Ex.R1 reflect availability of the structures in the disputed site though

claimed that they relate to the quarters of Archaka. He clearly admitted

that there is no proof that the disputed site belonged to the appellant

temple or with reference to its possession and enjoyment by this temple.

27. These facts were taken into consideration by the Endowments

Tribunal and thereby granted relief to the respondents 1 and 2.

28. The main objection of Sri K.Madhava Reddy, learned Standing

Counsel for the appellant, is that the entries in Ex.R1 register, until

contrary is proved bear a presumption as to their correctness and

therefore, Ex.R1 could not have been brushed aside by the tribunal.

Reasons are assigned supra, in respect of the manner of recording these

entries in the register without affording an opportunity to the respondents

1 and 2, on account of subsisting objections in respect thereof. Therefore,

in view of such material placed which seriously question these entries, in

as much as the presumption in terms of Section 46(3) of A.P.Act 30 of

1987 is rebuttal in nature, they cannot implicitly be relied on. Ex.R1

entries, hence, cannot stand and they are required to be deleted.

29. It appears, in the course of arguments in the Endowments

Tribunal, on behalf of the temple, it was contended that this site is a part

of Gramakantam or village site. The entries in Ex.P9 indicate this factor.

MVR,J CMA No.1047 of 2017

Even if it is a part of village site, by unilateral inclusion in the temple

register of properties (Ex.R1), when there is material to hold that the

respondents 1 and 2 since the time of their predecessors were and have

been in settled possession of this property, they cannot be subjected to

any action, at the instance of the appellant temple without following

recourse to due process of law.

30. However, it is made clear that the material produced by the

respondents 1 and 2 before the Endowments Tribunal did not make out

any independent right and title to hold possession of this property. Any

declaration of right and title, shall be based on proof of the same and

what the court does is to declare a pre-existing right, title and interest to

the property by its order. By granting such declaration, the court is not

clothed or vested with the power to create a new right or interest to the

property in dispute.

31. In the backdrop of the material available, in as much as the

respondents 1 and 2 did not make out title except their settled possession

of the disputed site, relief of declaration granted by the Endowments

Tribunal cannot be sustained nor can be confirmed.

32. In the circumstances, it is open for the appellant temple to

proceed in accordance with the provisions of Act 30 of 1987 requesting a

declaration that the disputed site belonged to the appellant temple and for

taking possession of the same. Without taking recourse to such steps, the

respondents 1 and 2 cannot be summarily be subjected to any action

including dispossession from this property.

33. Thus, this point is answered.

MVR,J CMA No.1047 of 2017

Point No.2:

34. In view of the reasons stated in point No.1, the order of the

Endowments Tribunal should require interference to the extent stated

above.

Point No.3:

35. In view of findings on points 1 and 2, this appeal has to be

allowed in part, setting aside the relief of declaration granted in favour of

the respondents 1 and 2 in respect of the disputed site, while confirming

in other respects including setting aside the entries made in section 43

Register relating to the disputed site holding them, incorrect.

36. In the result, this Civil Miscellaneous Appeal is allowed in part

setting aside the order of Endowments Tribunal dated 27.02.2017 in

O.A.No.2575 of 2010 (old O.A.No.230 of 2009) setting aside the relief of

declaration granted in favour of the respondents 1 and 2 in respect of the

petition schedule property (disputed site), while confirming that the

entries in Section 43 Register being incorrect which stand cancelled and

deleted. It is open for the appellant temple to take such steps following

due procedure in terms of Act 30 of 1987 to get a declaration that the

petition schedule property (disputed site) belonged to it and also for

ejectment of respondents therefrom. No costs.

As sequel thereto, pending miscellaneous petitions, if any, shall

stand closed. Interim Orders, if any, shall stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt:07.01.2021 RR MVR,J CMA No.1047 of 2017

HON'BLE SRI JUSTICE M.VENKATA RAMANA

CIVIL MISCELLANEOUS APPEAL No. 1047 of 2017

Dt:07.01.2021

RR