Yenumula Sri Devi vs Teh Assistant Commissioner
2022 Latest Caselaw 8972 AP

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
 CIVIL MISCELLANEOUS APPEAL Nos.326, 302, 303, 304,
  305, 306, 307, 308, 309, 310, 313, 314, 315, 319, 320,
  322, 323, 324, 325, 327, 328, 330, 337, 345, 346, 347,
  348, 349, 350, 351, 352, 353, 354, 355, 356, 358, 366,
               367, 368 AND 407 OF 2019

COMMON JUDGMENT:

      The appellants herein were the respondents and the temple

authorities-respondents herein were the petitioners before the

Andhra Pradesh Endowments Tribunal, Amaravati at

Pedakakani. For the sake of convenience, the parties are

referred by their respective ranking before the Tribunal.

2. The petitioners-respondents herein filed Original

Applications under Section 83 of the Andhra Pradesh Charitable

and Hindu Religious Institutions and Endowments Act, 1987

(Act 30 of 1987) (hereinafter called, 'the Act 30 of 1987'), praying

the Andhra Pradesh Endowments Tribunal, Amaravati at

Pedakakani (hereinafter called, 'the Tribunal') to pass eviction

orders against the respondents-appellants herein in all the

Original Applications directing him/her to vacate and hand over

the petition schedule property to the 2nd petitioner and for costs.

The temple authorities-petitioners also filed Interlocutory

Applications in all the Original Applications under Section 83(6)

of the Act 30 of 1987, praying the Tribunal to direct the

respondents to pay Rs.1,500/- per month towards damages for

use and occupation of the petition schedule property till disposal

of the main application.

3. Though the Tribunal has passed orders in all the

Original Applications independently, since the issue is common

in all the Original Applications, this Court is inclined to dispose

of all the appeals by way of this common judgment. For the sake

convenience, this Court is inclined to mention the pleadings in

C.M.A.No.302 of 2019.

4. As per the averments made in the Original

Applications, the petition schedule property consists of Ac.1.32

cents, situated in Sy.No.658 of Bapatla Town, Guntur District,

within the specified boundaries and the said extent of land was

encroached by the respondents and the temple authorities-

petitioners have filed a batch of Original Applications for eviction

of the respondents.

5. The extent of land Ac.1.32 cents in Sy.No.658

situated in Bapatla Town, Guntur District, was shown under

Section 38 of the Endowments Act 17/1966 and approved in

C.No.2581/67 dated 31.01.1969 of the Assistant Commissioner,

Endowments Department, Bapatla, and it is also approved under

Section 43 in R.Dis.No.A4/5138/2002 dated 22.09.2002 by the

Assistant Commissioner, Endowments Department, Guntur

District.

6. The respondents are in the illegal and unauthorized

occupation in different extents of land in the above subject land

and raised some constructions unauthorizedly without obtaining

any permission or approval orders in their favour from the

competent authority of Endowment Department and enjoying the

same without paying the amounts towards damages for use and

occupation and thereby causing loss to the public institution.

The temple authorities-petitioners issued notices to the

encroachers of the Choultry site and after receipt of the said

notices, the respondents approached the composite High Court

and got filed Writ Petition No.5168 of 2013, seeking declaration

that the issuance of the said notices is bad in law and further

sought for a direction not to evict them from the land in

Sy.Nos.656 and 658 of Eastern Choultry, Bapatla, Guntur

District and the said Writ Petitions were disposed of, vide orders

dated 27.02.2013, with a direction to the temple authorities-

petitioners to take appropriate steps in accordance with law duly

providing an opportunity of hearing and contest to the

respondents by following the provisions of the Endowments Act

30 of 1987 for eviction of the respondents and there shall not be

any forcible eviction without undertaking the due process of law.

The said direction caused the temple authorities-petitioners to

file the present Original Applications against the respondents

and other encroachers for eviction.

7. The respondents, resisting the Original Applications,

filed counters denying all the contents made in the Original

Applications and stated that the land subject land was

purchased from their vendors since long back and they are in

peaceful possession and enjoyment of the said property without

any obstruction from the temple authorities and the said land

was required to provide house sites to the weaker sections and

the Commissioner of Endowments Department, Andhra Pradesh,

vide proceedings D.Dis.No.M2/3196/83 dated 24.05.1983,

informed to the Sub Collector, Tenali, Guntur District, that the

temple institution has no objection for acquisition of land

admeasuring Ac.1.32 cents in Sy.No.658 subject to payment of

the compensation of Rs.1,50,000/- per acre in one lumpsum

before taking the land. It is also pleaded in the counter that the

respondents are encroachers and claimed adverse possession

over the said land and the respondents are perfected their title

by adverse possession against the temples and, therefore, prayed

for dismissal of the Original Applications.

8. Basing upon the averments of the Original

Applications and the contents of the counter, the Tribunal has

framed the following issues:

"1) Whether the respondent is an encroacher of OA scheduled property U/s. 83 (1) of Act 30/1987 and if so liable to be evicted and to pay damages if any?

2) To what result?"

9. The temple institution-petitioners have filed, as many

as 3 documents, i.e., Exs.A1 to A3 to establish their right and

the respondents have filed Exs.R1 to R10 in support of their

case.

10. The Tribunal, after considering the oral and

documentary evidence adduced by both the parties, held that the

documents which are relied by the respondents do not confer

any right over the subject land and also negated the contentions

raised by the respondents. The Tribunal by relying on the

judgment of a Division Bench of the composite High Court and

also Section 143 of the Act 30/1987, held that the respondents

cannot claim any adverse possession and paragraph Nos.14 and

15 of the order, the Tribunal held as follows:-

"14. In this case on hand the right of ownership is also not lost by 2nd petitioner. The respondent has not acquired any right much less title by adverse possession. Even if we take the case of the respondent, which was vaguely mentioned in counter that from about 30 years he/she is residing in the land as true, the respondent cannot acquire title by adverse possession. The obvious reason is that the respondent must establish that his/her ancestors acquired title by adverse possession even by 1874

as per the statutory provisions envisaged in various enactments made from time to time regarding the properties of Hindu Religious Institutions, which is enunciated in the Judgment of the Hon'ble High Court in Tutta Chinnayya's case.

In view of the judgment of the Hon'ble High Court Division Bench, considering various provisions of law relating to endowments and clear principle laid down that it is not either proof for 12 years with animus, possession or even 12 years before to the date of the Act, 19/1951 came into force, for proof of adverse possession, but for the proof of perfecting title by adverse possession even by the year 1874 as per Section 44-B of the Act,2/1927 (Amended by Act, 11/1934), the judgment of Hon'ble High Court in Samudrala Pedda Subbaiah Sastry cannot be relied upon for any purpose.

15. Moreover, the respondent has not produced any documents to prove his/her title or to prove that the land is not an endowment land and belongs to Revenue department. The payment of house tax, water tax or electricity bill do not confer any right over the land in which the respondent has raised unauthorized constructed

which belongs to others. As per Sec.46 (3) of Act 30/87 the entries in Sec.43 Registers shall be presumed to be genuine until contrary is proved."

11. The Tribunal, eventually, held that the respondents

are the encroachers and directed them to evict the O.A. schedule

property and also directed to pay an amount of Rs.500/- per

month towards damages for use and occupation of the schedule

site to the temple authorities-petitioners. Assailing the order

dated 12.06.2019, the present Civil Miscellaneous Appeal came

to be filed on the ground that the Tribunal has failed to

understand the provisions of the Act 30 of 1987 and the

Tribunal failed to see that the respondents are in occupation of

the subject land since the decades and ought not to have been

negated the adverse possession and they are in the occupation of

small extent and the Tribunal ought not to have been passed the

eviction orders against the respondents.

12. Learned counsel for the temple authorities-petitioners

has relied on the judgment of this Court in the case of Katari

Seetha Rama Raju v. Ranganadha Swamy Temple rep. by its

Manager, Visakhapatnam District and another1 for the

proposition that since the occupation of the land on behalf of the

respondents is proved to be unauthorized and illegal, a direction

can be given to pay damages.

13. A Division Bench of this Court in the case of Tutta

Chinnayya and others v. Executive Officer, Sri Varaha Lakshmi

Narasimha Swamyvari Devasthanam2, at paragraph No.16, by

following the judgments of the Hon'ble Apex Court, held that the

burden is always on the person who takes the plea of prescriptive

title by way of adverse possession to prove the same and mere

possession of the land, for however length of time it may be,

unaccompanied by adverse possession will not ripe into a

prescriptive title and the person holding the land must have

requisite animus to possess the same hostile to the real owner,

besides having the actual possession and that possession shall be

adequate in continuity, in publicity and in extent and the classical

requirement in this regard is nec vi, nec clam and nec precario

meaning thereby and in extent, to show that it is the possession

2019 (6) ALT 122 (S.B.)

(2016) 3 ALT 120 (DB) = 2016 SCC Online, Hyderabad

adverse to the competitor, by relying on the judgment of the

Hon'ble Apex Court in P.Lakshmi Reddy v. L.Lakshmi Reddy3. It

is also held that in view of the Act 17 of 1966 came into force and

the same provision incorporated even in the Act 30 of 1987

covered by Section 143 which provides that nothing in the law of

limitation for the time being in force shall be deemed to vest in any

person the property governed by the Act which has not vested

before 30.09.1951.

14. In the present case, the respondents have not filed

any documents to establish their right and possession over the

land of the temple to claim adverse possession which ripe into a

prescriptive title on whom the burden lies. Hence, the

contention raised by the respondents is rightly rejected by the

Tribunal, vide the impugned order. The Tribunal rightly allowed

the Original Petitions relying on the registered file under Section

43 of the Endowments Act, vide R.Dis.No.A4/5138/2002 dated

22.09.2002 and the property register of the Choultry was

approved under Section 38 of the Endowments Act. Hence, I

AIR 1957 SC 314

found no flaw in the order passed by the Tribunal. Accordingly,

all the Civil Miscellaneous Appeals are dismissed.

15. Learned counsel for the respondents would submit

that the temple authorities-petitioners may be directed to receive

the representations made by them, as they are also landless poor

persons, for allotment of land as they are in possession of the

small extents of land and a direction may be given to the temple

authorities-petitioners to consider the representation of the

respondents for allotment of the land which they are in

possession.

16. Learned counsel for the respondents would submit

that already the respondents have filed Writ Petitions before the

High Court of Andhra Pradesh at Hyderabad, for a direction not

to evict them from the land in Sy.No.658 eastern Choultry,

Bapatla, and the same was duly disposed of directing the

petitioners to follow the procedure contemplated under Sections

83 and 85 of the Endowments Act and therefore they are not

entitled for such relief.

17. Considering the submission made by the learned

counsel for the respondents, the respondents are hereby directed

to submit an application before petitioner-temple authorities

within a period of two (2) weeks from today and, on receipt of the

applications from the respondents, the petitioner-temple

authorities shall pass orders in accordance with law within a

period of six (6) weeks from the date of receipt of the application

made by the respondents. On disposing of the representations

made by the respondents, if the same were not considered, the

respondents were directed to vacate and hand over the lands

which are in their possession to the temple authorities-

petitioners. Till such time, the temple authorities-petitioners are

precluded from taking out the possession of the subject land.

18. With the above direction, all the Civil Miscellaneous

Appeals are dismissed. There shall be no order as to costs of the

appeals.

As a sequel, interlocutory applications pending, if any, in these appeals shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 24.11.2022 siva

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

C.M.A.No.326 OF 2019 and Batch

Date: 24.11.2022

siva