Kasivisweswara Swami Temple, vs Syed Peeru Saheb,
2021 Latest Caselaw 4866 AP

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

                   SECOND APPEAL No. 169 of 2013

JUDGMENT :

The 1st defendant in O.S.No.24 of 1987 on the file of the Court of

the learned Additional Senior Civil Judge, Chittoor is the appellant. The

respondents 1 to 7 are the legal representatives of Smt. Rameeza Bi, Wife

of Sri Syed Peeru Saheb.

2. Smt. Rameeza Bi as the sole plaintiff instituted the suit against

the appellant and the respondents 8 and 9 to declare her right, title and

interest to the plaint schedule property and to deliver the same to her.

3. Smt. Rameeza Bi died during pendency of the suit. The

respondents 1 to 7 were brought on record as her legal representatives.

4. The plaint schedule described the land in dispute as an extent of

Ac.0-81 cents in S.No.372/3 being a wetland at Palamaner of Chittoor

District. There are 14 tamarind trees in this land. It shall be hereinafter

referred to as „the suit land‟, for convenience.

5. Sri Ballapalli Muninarayana Chetty, S/o. Sri Changala Chetty was

the original owner of an extent of Ac.1-74 cents covered by S.No.372 of

Palamaner. This land was sub-divided into S.Nos.372/1, 2 and 3. Sri

Muninarayana Chetty had a son Sri Chengaiah Chetty. Sri Muninarayana

Chetty was enjoying the above extent. Ac.0-33 cents out of it was given

away under a gift admittedly by him to the appellant temple where it is

located. Similarly, another extent of Ac.0-60 cents out of the same survey

number classified as S.No.372/2 was gifted to this temple by him.

MVRJ, S.A.No.169 of 2013

6. The contention of the respondents 1 to 7 is that

Smt.Venkatamma, daughter-in-law of Sri Muninarayana Chetty, sold the

suit land of Ac.0-81 cents under a registered sale deed on 21.6.1962 in

favour of Sri Mohd.Akbar, father of Smt. Rameeza Bi for valuable

consideration. Their further contention is that Sri Muninarayana Chetty

had gifted away the suit land on 25.02.1938 in favour of his daughter-in-

law Smt.Venkatamma. Their further contention is that in the above

settlement deed the survey number is described as 372/1 which is shown

similarly in the sale deed by her in favour of Sri Mohd.Akbar. Their further

contention is that there was conversion of these lands into sub divisions in

S.No.372 by the proceedings of the then District Collector, Chittoor in the

year 1940 whereby S.No.372/3 which was otherwise shown being an

extent of Ac.0-33 cents was rectified as Ac.0-81 cents and S.No.372/1

which was otherwise Ac.0-81 cents was rectified as Ac.0-33 cents.

7. The respondents 1 to 7 further contended that the suit land thus

in S.No.372/3 was allotted to Smt. Rameeza Bi in the partition by her

father as per the deed of partition dated 07.03.1972 and since then

Smt.Rameeza Bi continued to be in possession and enjoyment of this land

to which she also acquired right and interest by adverse possession.

8. The respondents 1 to 7 further contended that on behalf of the

appellant, the suit land was leased out to third parties including the

respondents 8 and 9 since the year 1980 including the tamarind trees

without any manner of right. The respondents 1 to 7 further contended

that a notice was caused on behalf of Smt. Rameeza Bi dated 01.10.1986

to the Chairman of Board of Trustees of the appellant temple to surrender MVRJ, S.A.No.169 of 2013

possession of this land, claiming damages at Rs.4,000/- per annum and

since such demand was not complied, she was constrained to lay the suit.

9. The respondents 8 and 9 remained ex parte in the suit.

10. The appellant alone contested the suit questioning its

maintainability and that Smt.Venkatamma had no right and title or

possession to convey the suit land to Sri Mohd. Akbar under the sale deed

dated 21.10.1962. Thus, the appellant questioned the nature of this sale

deed being nominal, sham document and that it was never acted upon.

The appellant further contended that though Smt.Rameeza Bi had

purchased the land in S.No.372/1, making a claim to S.No.372/3 is not

valid and that the sub divisions as well as their extents in S.No.372

remained as such that were also reflected in FMB, since time immemorial.

The appellant also contended that necessary parties are not added to the

suit and thus the suit is bad for non-joinder of necessary parties. It is

further contended that the suit claim is barred by limitation. It also

contended that no demand notice was issued on behalf of Smt. Rameeza

Bi to them. The appellant also contended that it acquired right, title and

interest to the suit land by adverse possession by prescription.

11. The trial Court basing on the pleadings settled the following

issues:

"1. Whether the suit is bad for non-joinder of necessary parties?

2. Whether the suit is barred by limitation?

3. Whether the plaintiff is entitled for declaration of title and for possession of the plaint schedule property?

4. Whether the plaintiff is entitled for past and future damages at Rs.4,000/- per annum as prayed for?

5. To what relief?"

MVRJ, S.A.No.169 of 2013

12. The parties went to trial. The 1st respondent examined himself

as P.W.1, the then Karanam of Palamaner as P.W.2 and Village

Administrative Officer, Palamaner as P.W.3, while relying on Ex.A1 to

Ex.A8 on behalf of the respondents 1 to 7. On behalf of the appellant,

then Executive Officer of Endowments Department at Palamaner was

examined as D.W.1 while D.W.2 was then one of the trustees of the

appellant temple and D.W.3 was then Executive Officer of the appellant

temple, to support its version while relying on Ex.B1 to Ex.B14.

13. On the material and evidence, the trial Court held that the

respondents 1 to 7 failed to establish their right, title and interest to the

suit land against the appellant-temple and the suit was dismissed with

costs.

14. A.S.No.38 of 2009 presented against the decree and judgment

of the trial Court on the file of the Court of the learned I-Additional District

Judge, Chittoor was allowed granting decree in favour of the respondents

1 to 7 as prayed, for declaration and possession. The appellate Court

directed the respondents 1 to 7 to file a separate application for

determining past and future mesne profits.

15. In these circumstances, this present appeal is presented.

16. Heard Sri M. Venkata Ramana Reddy, learned counsel for the

appellant and Sri A.V.Sivaiah, learned counsel for the respondents 1 to 7.

17. This second appeal was admitted on the following substantial

questions of law:

MVRJ, S.A.No.169 of 2013

"1. Whether the suit filed by the respondents is not barred under Sections 87 and 151 of the A.P.Charitable and Hindu Religious Institutions and Endowments Act, 1987?

2. Whether the suit was not barred by limitation?

3. Whether the lower appellate Court was not under obligation to decide as to when the respondents were dispossessed from the land, before granting the relief of declaration of title and delivery of possession of the property?"

Re: BAR OF LIMITATION

18. Issue No.2 settled by the trial Court is with reference to bar of

limitation in filing the suit. The learned trial Judge held this issue against

the appellant, holding that the suit was filed within the period 12 years

and thus is not barred by limitation in terms of Article-65 of the Limitation

Act. In the course of hearing this second appeal, Sri A.V.Sivaiah, learned

counsel for the respondents 1 to 7 brought to the notice of this Court that

the appellant did not question the above finding including on issue No.1

relating to non-joinder of necessary parties that was held in favour of the

respondents 1 to 7, either by means of cross-objections or separate

appeal before the appellate Court nor any contentions were advanced in

the appellate Court against such findings who while supporting the decree

of dismissal passed by the trial Court. The material is justifying such

stand. Apparently no contentions were advanced on behalf of the

appellant before the appellate Court questioning such findings nor

separate appeal or cross-objections was filed questioning the same.

19. Therefore, it is not open for the appellant to raise the question

of limitation now in this second appeal nor can it be canvassed basing on

the material, as a pure question of law which this Court can consider.

Reliance placed on behalf of the appellant in this context in

L.C.Hanumanthappa (since dead) represented by his Legal MVRJ, S.A.No.169 of 2013

Representatives vs. H.B.Shivakumar1 as such is not of assistance in

this backdrop.

20. Reliance is also placed by Sri M.Venkata Ramana Reddy,

learned counsel for the appellant, in Yeshwant Deorao v. Walchand

Ramchand2 in support of his contention that limitation being the legal

plea it can be raised in the second appeal and that Section 100 CPC is not

a bar. Not only for the above reasons but also it being a question of fact

and law, in these circumstances the appellant cannot raise such plea of

bar of limitation.

Re: BAR OF JURISDICTION FOR CIVIL COURT TO ENTERTAIN THE SUIT

21. Sri M.Venkata Ramana Reddy, learned counsel for the

appellant, strenuously contended that the appellant is a Religious

Institution governed by the provisions of A.P.Charitable and Hindu

Religious Institutions and Endowments Act, 1987 (A.P. Act 30 of 1987, for

short) and in view of specific bar under Section 151 of this Act, the civil

Court could not have entertained a dispute of this nature. The learned

counsel for the appellant further contended that in view of the constitution

of Endowments Tribunal under Section 162 of this Act, empowered to

decide such disputes, in terms of Section 87 thereunder, there is clear bar

for the civil Court to consider this dispute. Thus, it is contended that the

decrees and judgments of both the Courts below are bad in law.

22. Section 151 of the A.P. Act 30 of 1987 reads thus:

. (2016) 1 Supreme Court Cases 332

. AIR 1951 Supreme Court 16 MVRJ, S.A.No.169 of 2013

"151. Bar of Jurisdiction. - No suit or other legal proceeding in respect of administration or management of an institution or endowment or any other matters of dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law except under and in conformity with the provisions of this Act."

23. Section 151 of the Act 30 of 1987 requires that there shall be a

dispute relating to administration or management of an institution or

endowment or any other matters. Such dispute is amenable for

determination or decision under this Act, namely Act 30 of 1987. In such

an event, no suit or other legal proceeding in respect thereof shall be

instituted in any Court of law. It further states that except in terms of

provisions of this Act such dispute cannot be determined or decided.

24. In order to consider this question of jurisdiction, pleadings play

a vital role. As seen from the written statement of the appellant, no

objection was raised as a defence as to maintainability of the suit before

the trial Court nor any specific issue was settled therefor nor the trial

Court or the appellate Court was called upon to consider such question. A

faint attempt apparently was made at the trial, as seen from the

deposition of D.W.3, then Executive Officer of the appellate temple, where

he stated in examined-in-chief that the civil Court did not have jurisdiction

to entertain the suit. However, such plea at the trial, is not supported by

the pleadings in the written statement.

25. The nature of dispute in this case, requires consideration in

this context. Smt. Rameeza Bi instituted the suit questioning possession of

the suit land and the manner of leasing it out to third parties by the

appellant. She sought declaration of her right, title and interest to this

land against the appellant, which after her lifetime is being pursued by her MVRJ, S.A.No.169 of 2013

legal representatives, namely the respondents 1 to 7. Thus, the very

nature of dispute presented a scenario that it did not relate to any

administration or management relating to a religious or charitable

institution directly nor an endowment as such. In such an event, the bar

of jurisdiction as such for a civil Court to entertain a suit of this nature

cannot arise, that too when it is sought to be raised for the first time in

this second appeal, without there being any basis in the pleadings nor any

foundation laid, either at the trial or later in the appeal.

26. One of the rulings relied on by the learned counsel for the

appellant in this context is in Executive Officer, Sri Bramaramba

Mallikarjuna Swamy Temple, Beeranguda, Patancheru Mandal,

Medak District v. Sai Krupa Homes, Karimnagar and others3.

Referring to application of Section 34 of the Specific Relief Act when a

similar objection was raised under Section 151 as well as Section 87 of the

A.P. Act 30 of 1987, relying on an earlier judgment of Division Bench of

this Court in Jaggayya v. Deity of Seetharamaswamy Varu (1987(1)

ALT 18), in para-27 of this ruling it is thus observed:

"27. Similar issue was considered by this Court in a Division Bench judgment in Jaggayya's case (supra), which is based upon the decision of the Supreme Court, which considered similar contention with respect to Andhra Pradesh Charitable and Hindu Religious Institutions and Endowment Act, 1966 wherein similar question with reference to Section 77 of the 1966 Act was considered and the suit was held to be maintainable. The present Section 87 being similar to Section 77 of the 1966 Act, it has to be held that since it is a suit for declaration, the same would not fall within the purview of the authorities under the Act, 30 of 1987 under Section 87. Similarly, Section 151 contains a bar of jurisdiction that no suit or legal proceeding in respect of administration or management of an institution or endowment or any other matters of dispute for determining or deciding, for which the provision is made in this Act, 30 of 1987 shall be instituted in any Court. As a suit for declaration of title is not falling within the parameters of Section 151 of the Act, 30 of

. 2010(6) ALD 207 MVRJ, S.A.No.169 of 2013

1987 the said contention of the appellants is liable to be rejected and it is accordingly rejected."

27. Sri Venkata Ramana Reddy, learned counsel for the appellant,

further relied on for the same purpose S.Anjana Reddy vs. P.Ranga

Reddy and others4 and Jampani Trilokeswari and another v.

Dharmadaya Tope represented by its fit person and others5. In

both these rulings, not only the effect of Section 151 of the Act 30 of 1987

but also effect of Section 162 as well as Section 87 of this Act is

considered. In fact, in S.Anjana, when an objection was taken as to trial

of an issue relating to jurisdiction as a preliminary issue, observations

were so recorded. Any observation in an interlocutory matter cannot be

decisive nor can hold the field since such decision is subject to ultimate

determination in a cause.

28. Further it has to be borne in mind that Section 162 was

introduced by an amendment of Act 30 of 1987 by Act 33 of 2007 with

effect from 03.01.2008. Thus constitution of Endowments tribunal in

terms of Section 162 of this Act is a subsequent provision brought into

effect. Section 87 of this Act was similarly amended, by Act 33 of 2007

with effect from 03.01.2008 whereby the powers which an Endowment

tribunal can exercise to decide certain disputes and matters, are enlisted.

Predominantly when these two provisions are procedural in nature, they

are prospective in operation and can never be made applicable

retrospectively. Nor the amended provisions provide for such application

. 2017(2) ALT 393

.2012(1) ALD 464 MVRJ, S.A.No.169 of 2013

specifically. Therefore, contention of Sri M.Venkata Ramana Reddy,

learned counsel for the appellant, on this score cannot stand.

29. Sri Venkata Ramana Reddy, learned counsel for the appellant,

tried to persuade this Court that when there is a clear bar in this Act for a

civil Court to entertain a suit, the legislative intent has to be given effect

to and that it cannot be overlooked. Attempt is made by the learned

counsel for the appellant in this context relying on Union Bank of India

Calcutta vs. Abhijit Tea Co. Pvt. Ltd. and others6. The question of

jurisdiction of High Court of Calcutta on original side, upon constitution of

a Debt Recovery Tribunal under Recovery of Debts Due to Banks and

Financial Institutions Act, 1993 came for consideration in the above ruling.

Section 31 of this Act referred to transfer of pending cases. Having regard

to the effect of this provision in conjunction with Section 18 of the said

Act that provided for bar of jurisdiction, it is observed that the High Court

could not try the suit and necessarily it has to be transferred to the

appropriate tribunal under the above act.

30. Similar is not the situation in the present case. Act 30 of 1987

did not provide for any transitional provisions including for transfer of

pending matters as is found in Section 31 of Recovery of Debts Due to

Banks and Financial Institutions Act, 1993. The appellant cannot rely on in

this context the effect of Section 160 of Act 30 of 1987 which provided for

overriding effect of this Act.

. (2000) 7 SCC 357 MVRJ, S.A.No.169 of 2013

31. Further, Act 30 of 1987 came into force on 21.04.1987. The

suit was instituted in this case on 29.01.1987. Therefore, institution of the

suit was prior to coming into force of A.P.Act 30 of 1987.

32. Viewed from these factors and contingencies, the contention of

Sri M.Venkata Ramana Reddy, learned counsel for the appellant, in this

respect cannot stand.

33. Further effort is made by Sri M.Venkata Ramana Reddy,

learned counsel for the appellant, referring to The Premier

Automobiles Limited vs. Kamalakar Shantaram and others7,

wherein dispute was squarely covered by Industrial Disputes Act and in

that context the jurisdiction of civil Court to entertain a matter of such

nature was not accepted.

34. Another ruling relied on by Sri M.Venkata Ramana Reddy,

learned counsel for the appellant, in support of his contention is in Firm

of Illuri Subbaraya Chetty vs. State of A.P.8. It is a case where

assessment in terms of General Sales Tax Act was in issue and in those

circumstances it was held that the civil Court is not competent to entertain

a suit where the question is in relation to assessment made under the said

Act.

35. Therefore, rejecting the contention of Sri M.Venkata Ramana

Reddy, learned counsel for the appellant, it is held that the civil Court did

have jurisdiction to entertain a dispute of this nature.

. AIR 1975 SC 2238(1)

. AIR 1964 SC 322 MVRJ, S.A.No.169 of 2013

Re: Nature of suit claim vis-a-vis appreciation of material and evidence by

the appellate Court qua trial Court

36. The essential relief sought by the original plaintiff

Smt.Rameeza Bi in the suit is for declaration of her right, title and interest

to the suit land. The burden of proof in respect thereof is well settled.

Since Smt.Rameeza Bi approached the Court for this purpose it was her

burden in terms of Section 101 of the Evidence Act to establish her claim

by definite and unimpeachable evidence. Any weakness in the case set up

by the appellant, who is the 1st defendant cannot be the strength of the

plaintiff.

37. Canvassing on this question, Sri M.Venkata Ramana Reddy,

learned counsel for the appellant, relied on Union of India and others

vs. Vasavi Cooperative Housing Society Limited and others9. In

para-15 of this ruling it is stated:

"15.It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff."

38. Earlier rulings of the Hon‟ble Supreme Court in this context

were also considered in this ruling including Moran Mar Basselios

Catholicos v. Thukalan Paulo Avira10

39. Another ruling relied on by the learned counsel for the

appellant in this respect is Krishna (died) and others v. Indian

Institute of Economics, Hyderabad and others11. Referring to the

. (2014) 2 Supreme Court Cases 269

.AIR 1959 SC 31

. 2011(6) ALD 174 (DB).

MVRJ, S.A.No.169 of 2013

bounden duty of the plaintiff to establish identity of the property in

dispute in a declaratory claim, in para-22 of this ruling it is stated:

"22. ..... the plaintiff has to give description of the property sufficient to identify it and, if the property can be identified by boundaries, they must be given. This essential rule of pleadings has been given a go-by by the plaintiff......"

40. The appellant is admittedly in possession of the suit land.

Therefore, it is also the burden of the plaintiff who instituted the suit to

prove that the appellant is not the owner of the suit property in terms of

Section 110 of the Indian Evidence Act.

41. The cause of action set out in the plaint is that it arose in or

about the year 1980 when the appellant inducted its tenants into unlawful

possession of the suit land for the first time and subsequently when the

appellant continued to be in unlawful possession of this property through

tenants.

42. Therefore, it is the burden of Smt.Rameeza Bi to further

establish that she and her predecessor-in-title were in possession of the

suit land from which they were dispossessed in or about the year 1980 at

the instance of the appellant. The proof required in this context is

affirmative in nature.

43. The entire claim of Smt.Rameeza Bi is based on purchase of

the suit land by her father Sri Mohd. Akbar under Ex.A1 sale deed dated

21.06.1962. The land described in Ex.A1 is an extent of Ac.0-81 cents in

S.No.372/1. There is a reference in Ex.A1 that the vendor acquired right

and interest to the suit land under a settlement deed executed by Sri

Muninarayana Chetty in her favour on 25.02.1938. The registration extract

of this settlement deed is Ex.A4.

MVRJ, S.A.No.169 of 2013

44. The recitals in Ex.A4 are that Sri Muninarayana Chetty intended

to gift away property worth Rs.2,000/- in the nature of lands, gold

jewellary, silver ware etc., towards maintenance since she happened to be

the first wife of his son Sri Chengaiah Chetty, who had passed away by

then. This is to support her and towards her maintenance, the recitals in

Ex.A4 state that such properties were given to her. It is further recited

that they were given in possession to Smt.Venkatamma by the executant.

However, the recitals in Ex.A4 state that Sri Muninarayana Chetty retained

his life interest to these properties and that the right given to

Smt.Venkatamma was restricted, not to alienate including by means of

gift or sale. Recitals in Ex.A4 further are that Sri Muninarayana Chetty

would pay the cist etc., to the Government for the lands and after his

lifetime Smt.Venkatamma was to enjoy these properties, with absolute

rights.

45. The properties covered by Ex.A4 included an extent of Ac.0-81

cents in S.No.372/1 of Palamaner including fruit bearing trees like

tamarind etc.

46. Therefore, in terms of this settlement deed (Ex.A4) Sri

Muninarayana Chetty had retained his life interest to the properties

covered by it. It is not that life interest in respect of these properties,

albeit for supporting and maintaining Smt.Venkatamma was conferred

thereunder in her favour. Smt.Venkatamma would become absolute

owner of these properties with right, title and interest only upon death of

Sri Muninarayana Chetty and not otherwise. Till happening of such

contingency she did not have any right, title and interest either to alienate

or encumber the properties covered by it.

MVRJ, S.A.No.169 of 2013

47. The learned appellate Judge did not appreciate the recitals in

Ex.A4 in proper perspective and considered as if a life interest was created

in favour of Smt.Venkatamma by settlor in respect of these properties. It

is in inappropriate application of Section 14(1) of the Hindu Succession

Act, 1956. On account of this misapplication and improper appreciation of

Ex.A4, the learned appellate Judge held that the right in favour of

Smt.Venkatamma became absolute in terms of Section 14(1) of the Hindu

Succession Act.

48. Sri M.Venkata Ramana Reddy, learned counsel for the

appellant, is right in pointing out this fallacy in the reasons assigned by

the learned appellate Judge.

49. As pointed out by the learned counsel for the appellant, it is

not in dispute that Sri Muninarayana Chetty died in the year 1951. It was

before advent of the Hindu Succession Act, 1956. Provisions of this Act

are only prospective in nature. They are neither retrospective nor

retroactive.

50. Sri M.Venkata Ramana Reddy, learned counsel for the

appellant, rightly relied on in this context in Velamuri Venkayta

Sivaprasad (dead) by L.Rs. v. Kothuri Venkateswarlu (dead) by

L.Rs. And others12. Considering the application of provisions of the

Hindu Succession Act, 1956, it is observed in Para-16 of this ruling that

this Act,1956 is prospective in its operation and that no element of

retrospectivity can be attributed therein. In para-47 of this ruling, it is

further stated thus:

. (2000) 2 Supreme Court Cases 139 MVRJ, S.A.No.169 of 2013

"47. Incidentally, be it noted that the Succession Act of 1956 obviously is prospective in operation and in the event of a divestation prior to 1956, the question of applicability of Section 14(1) would not arise since on the date when it applied........."

51. Therefore, question of application of the Hindu Succession Act,

1956 did not arise in this case much less effect of Section 14(1)

thereunder.

52. Upon death of Sri Muninarayana Chetty, in terms of recitals in

the settlement deed (Ex.A4), in the year 1951 Smt.Venkatamma in usual

course, should have been the owner of these properties settled

thereunder. It was long prior to the year 1956.

53. However, the matter did not rest at that. Admittedly, Sri

Muninarayana Chetty gifted away Ac.0-33 cents and Ac.0-60 cents in

S.No.372 to the appellant temple. Ex.B13 is the registration extract of the

settlement deed dated 10.06.1940. Under the original of Ex.B13, Sri

Muninarayana Chetty gave away certain properties for the purpose of the

appellant temple including Ac.0-33 cents in S.No.372/3 (as described

therein). Ex.B13 refers to another registered gift deed executed in favour

of this temple dated 31.07.1939 by Sri Muninarayana Chetty conferring

certain properties including fruit bearing trees like tamarind. Thus, by the

years 1939 and 1940, properties were conferred on the appellant temple

by Sri Muninarayana Chetty. On behalf of the appellant, for the reasons

not known, the registered settlement deed dated 31.07.1939 was not

adduced in evidence at the trial. Only Ex.B13 was produced.

54. The omission to produce such document did not have much

impact in this case to consider the claim of the appellant.

MVRJ, S.A.No.169 of 2013

55. In this context regard should be had to the registered Will

executed by Sri Muninarayana Chetty on 16.03.1943 creating a bequest.

The recitals in this registered Will (Ex.B2) are that he had recalled the

earlier settlement deed executed by him on 25.02.1938 in favour of

Smt.Venkatamma. The reason assigned therein was that her husband died

on 02.02.1938 and in such anxious moments the original of Ex.A4 was

executed by him in her favour. It is further stated that it was a mistake on

his part to recite in the original of Ex.A4 that the properties were delivered

in possession to her, though it was not so. Finally it is stated in this

registered Will that the properties referred to therein should be enjoyed

by Smt. Venkatamma during her lifetime, thereafter to confer upon her

daughter Smt.Visalakshi and after her lifetime these properties should be

conferred in favour of Sri Kasivisweswara Swamy temple (appellant).

56. Thus, the recitals in Ex.B2 reflect a situation whereby Sri

Muninarayana Chetty had cancelled the gift made under the original of

Ex.A4 in favour of Smt.Venkatamma on 16.03.1943 and during his

lifetime. Whether such cancellation of gift deed by Sri Muninarayana

Chetty is valid or not is not germane for the present purpose. The recitals

in Ex.B2 when properly construed, did indicate that the properties were

not delivered to Smt.Venkatamma under the original of Ex.A4.

57. It is pertinent to note that on behalf of Smt.Rameeza Bi and

the respondents 1 to 7 at the trial when this document was introduced in

evidence through D.W.3, there was absolutely no cross-examination

including questioning its recitals. Only question offered to D.W.3 in this

context was about the original of Ex.B2 and its custody.

MVRJ, S.A.No.169 of 2013

58. Therefore, the situation is that the recitals in Ex.B2-Will as such

are not questioned on behalf of the respondents 1 to 7 at the trial or at

any stage.

59. Even otherwise, Smt.Venkatamma being the primary

beneficiary under this Will to whom the properties were conferred for

enjoyment during her lifetime, followed by her daughter, it is possible that

this Will was not chosen to be questioned or challenged on behalf of the

respondents 1 to 7. The properties referred in this will (Ex.B2) did not

include any extent covered by S.No.372.

60. The deduction to draw in these circumstances is that there was

no land of any extent available for Smt.Venkatamma to convey in

S.No.372, after the lifetime of Sri Muninarayana Chetty. The disposition of

the properties apparently was complete by the date he executed the will

on 16.03.1943 (Ex.B2). In such circumstances, Smt. Venkatamma did not

have any right or interest or possession of any extent in S.No.372 and

hence, could not have conveyed any extent in S.No.372 much less Ac.0-81

cents, described as the suit land in favour of Sri Mohd. Akbar under Ex.A1

sale deed dated 21.06.1962.

61. Sri M.Venkata Ramana Reddy, learned counsel for the

appellant, is right in contending that the burden is on Smt.Rameeza Bi and

the respondents 1 to 7 to establish the title of her vendor and right in

placing reliance in Executive Officer, Sri Bramaramba Mallikarjuna

Swamy Temple referred to above. Mere holding a registered sale deed

in the nature of Ex.A1 is not sufficient to establish the title in favour of the

plaintiff.

MVRJ, S.A.No.169 of 2013

62. In addition, continuous possession and enjoyment of the suit

land by Smt.Venkatamma and later by Sri Mohd.Akbar, should be proved

and established. It is the predominant requirement in the given facts and

circumstances of this case.

63. Both the Courts below entered into any amount of discussion

as to identity of the property. The learned trial Judge observed that the

respondents 1 to 7 failed to establish the boundaries in order to establish

this extent and particularly having regard to the fact that Ex.A1 and Ex.A4

described Ac.0-81 cents being in S.No.372/3. When an entire extent (full

extent) is described in a document of this nature, namely registered

document, it is not necessary that boundaries should be furnished.

However, it is desirable that sufficient description of the property which is

subject matter should be stated in a sale deed in order to avoid any

controversy in future as to identity.

64. The learned appellate Judge accepted the version of the

respondents 1 to 7 basing on the revenue records and held that Ac.0-81

cents in S.No.372/3 alone was the subject matter under the original of

Ex.A4 and under Ex.A1.

65. The respondents 1 to 7 relied on the revenue records as well

as the testimony of P.W.2 and P.W.3. The relevant among them is the

conversion statement of the extents in S.No.372 reflected in Ex.A8. The

contents of Ex.A8, which is an extract of „A‟ Register where area of the

land was converted to metric system, are that there was rectification

carried out in relation to S.No.372/1, showing Ac.0-33 cents and

S.No.372/3 as of Ac.0-81 cents. Basing on Ex.A7, which is also an extract MVRJ, S.A.No.169 of 2013

of „A‟ register reflecting the extent of S.No.372/3 being Ac.0-81 cents, it is

the contention of the respondents 1 to 7 that the suit land in fact is of

Ac.0-81 cents in S.No.372/3.

66. P.W.3-VAO of Palamaner deposed in this context. If there is

any doubt or suspicion about Ex.A7 and Ex.A8, the appellant should have

called for original records from the concerned revenue authorities to

challenge these entries. No such effort was made at the trial on behalf of

the appellant. Nonetheless, this omission on the part of the appellant has

no consequence, particularly when there is deficiency in the case set up

by the respondents 1 to 7 in relation to right and competence of

Smt.Venkatamma to convey the suit land to Mohd.Akbar under Ex.A1 sale

deed.

67. Want of material or evidence to establish that possession of

the suit land continued to rest with Smt.Venkatamma and later with Sri

Mohd.Akbar assumed significance. The case of the respondents 1 to 7

that the appellant is in possession of this land since the year 1980. But, it

appears it is not so.

68. Producing Ex.A9-adangal extract for the years 1993-94

showing as if Smt.Rameeza Bi was in possession of this land, is indicative

of false attempt by the respondents 1 to 7. Further, Ex.A6-Land Revenue

Receipts also did not advance their case. The reason is that Ex.A6 and

Ex.A9 are the documents relate to the period subsequent to the institution

of the suit. In the presence of the case set up by the respondent 1 to 7

that the appellant is in possession of this land, it is clear that they are MVRJ, S.A.No.169 of 2013

false and created documents to meet their case. Similar is the fate of

Ex.A3 ryotwari passbook and no credence as such can be attached to it.

69. Production of Ex.A5-certified copy of 10(1) account relating to

different lands in the name of Sri Mohd.Akbar for patta No.210 that

included S.No.372/3 of Ac.0-81 cents is not sufficient nor a substitute to

establish his possession of this land since the date of Ex.A1 dated

11.10.1962.

70. On behalf of the appellant, an attempt was made at the trial to

rely on Ex.B3-an unregistered lease agreement dated 09.01.1974 of the

suit land and other extents in S.No.372/2 and 1 in favour of Sri

Markandeya (respondent No.8) for three years. Ex.B4 is the original

receipt said to have been issued to respondent No.8 dated 02.02.1971

towards payment of lease amount. Ex.B5 is another original receipt dated

25.04.1985 for the same purpose issued to one Sri S.Muneppa. Ex.B6 to

Ex.B11 were also produced at the trial through D.W.3 to prove such fact.

But the proof offered on behalf of the appellant in this respect is not

sufficient. Had they examined the tenants who paid the lease amounts, it

would have been more appropriate.

71. Sri A.V.Sivaiah, learned counsel for the respondent 1 to 7,

strenuously contended that production of these original receipts itself cast

a doubt about their authenticity since such receipts must be in possession

of the tenants. Thus, it is contended by the learned counsel for the

respondents 1 to 7 that in the absence of production of their counterfoils,

these documents as such need not be considered. Nonetheless, no proof

as such is let in in establishing this fact.

MVRJ, S.A.No.169 of 2013

72. Sri A.V.Sivaiah, learned counsel for the respondents 1 to 7,

contended that the contentions on behalf of the appellant are based on

fact situation and therefore in terms of Section 100 CPC, this Court is

precluded from considering these questions.

73. In support of this contention, reliance is placed on

Thiagarajan and others v. Sri Venugopalaswamy B.Koil and

others13. In Para-26 of this ruling it is observed:

"26. To say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible."

74. Further reliance is placed on H.P.Pyarejan vs. Dasappa

(dead) by L.Rs.and others14 where the essential question is in relation

to application of Section 16(c) of the Specific Relief Act. In para-16 of this

ruling in the context of duty of High Court to interfere under Section 100

CPC, it is stated:

"16. .... Under Section 100 of the Code (a amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with finding of fact by the High Court is not warranted if it involves reappreciation of evidence (See panchugopal Barua v. Umesh Chandra Goswami15 and Kshitish Chandra Purkait v. Santosh Kumar Purkait16)....."

75. Another ruling relied on by the learned counsel for the

respondents 1 to 7 in this respect is G.Subrahmanyam (died) per

. (2004) 5 Supreme Court Cases 762

. (2006) 2 Supreme Court Cases 496

.(1997)4 SCC 713

. (1997) 5 SCC 438 MVRJ, S.A.No.169 of 2013

L.Rs. v. G.Leela and others17 and Indian Oil Corporation Limited,

Secunderabad, rep. By its Divisional Manager v. Epuri Prithvisen

Reddy18.

76. Considerations in terms of Section 100 CPC arise only when

there is substantial question of law and not mere such questions of law or

one based on facts. The learned counsel for the respondents 1 to 7 is

right in placing reliance on these rulings. However, it has to be borne in

mind that in case of misapplication of law and improper appreciation of

evidence on record, particularly the documentary evidence, it is the

bounden duty of the High Court sitting in second appeal to consider such

questions which are substantial in nature in terms of law. Similar situation

is found in the present case where the learned appellate Judge miserably

failed to appreciate the documentary evidence let in on behalf of the

parties properly. There is complete misapplication and improper

appreciation of fact vis-a-vis the law. These circumstances are sufficient

for this Court to interfere in terms of Section 100 CPC.

77. May be there are certain questions relating to identity of the

suit property and effect of the boundaries in relation thereto. Such

questions did not fall within the scope of Section 100 CPC as is observed

in V.Narayanaswamy Mudaliar v. Veluru Krishnavenamma19 relied

on by the learned counsel for the respondents 1 to 7. On behalf of the

appellant, in the same context reliance is placed in Dastagir Ahmd v.

.2011(5) ALT 790 (D.B.)

. 2015(4) ALT 256

.2007(3) ALT 653 MVRJ, S.A.No.169 of 2013

Khairunnisa Rahana and others20 and Jagannadha Rao vs. Y.

Subba Rao21.

78. Substantial question of law relating to obligation of the

appellate Court to decide, when Smt. Rameeza Bi or her father was

dispossessed from the suit land holds predominance now. It is one of the

substantial questions of law on which this second appeal was admitted.

79. Cause of action as already stated set out by the original

plaintiff Smt. Rameeza Bi as if the appellant through its tenants

dispossessed from the suit land in the year 1980 is not established. The

material on record did not indicate or prove that Smt.Venkatamma or Sri

Mohd. Akbar was in possession of the suit land at any time long prior to

the alleged date of cause of action, leading to hold that Smt.Venkatamma

had no right or interest to convey the suit land to Sri Mohd.Akbar. Thus,

Ex.A1 sale deed, as rightly contended for the appellants, remained a sham

and nominal document. Subsequent events like allotment of the suit land

in favour of Smt. Rameeza Bi under registered partition deed covered by

Ex.A2 on 07.03.1972 did not confer any right or interest to her since Sri

Mohd.Akbar had no such right or interest to convey.

80. When these factors were not appreciated by the appellate

Court, which has significant bearing to consider nature of possession by

the appellant temple, a substantial question of law thus is made out on its

behalf. The burden of proof of the respondents 1 to 7 in terms of Section

. 2012(3) ALD 13

. 1985(2) APLJ 149 MVRJ, S.A.No.169 of 2013

110 of the Indian Evidence Act is not effectively discharged and to hold

that the appellant was not the owner of the suit land.

81. Therefore, in the above circumstances, accepting the

contention of the appellant the second appeal has to be allowed setting

aside the decree and judgment of the appellate Court, restoring the

decree of the trial Court.

82. In the result, the second appeal is allowed. Consequently the

decree and judgment dated 19.10.2012 in A.S.No.38 of 2009 of the

learned I-Additional District Judge, Chittoor are set aside. The decree

dated 09.02.2009 in O.S.No.24 of 1987 of the Court of the learned

Additional Senior Civil Judge, Chittoor is restored. In the circumstances,

the parties are directed to bear their own costs throughout.

As a sequel, pending miscellaneous petitions, if any, stand closed.

Interim Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA

Dt: 29.11.2021 RR MVRJ, S.A.No.169 of 2013

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL No.169 of 2013

Dt: 29.11.2021

RR