Andhra Pradesh High Court - Amravati
K Ganana Sekhar vs The Assistant Commissioner on 8 December, 2023
HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL MISCELLANEOUS APPEAL Nos.245, 259, 261,
262, 325, 330, 334, 376, 389 and 422 of 2023
COMMON JUDGMENT :
As the issue involved in these appeals is one and the
same, these matters are taken up together for disposal by this
Common Judgment.
2. The facts in these appeals are similar and
identical, therefore C.M.A.No.245 of 2023 is taken as lead
case, and the facts therein are referred to for convenience.
3. The impugned application in O.A No.303 of 2012
was filed by the petitioners/respondents herein under Section
83 of A.P. Charitable and Hindu Religious Institutions and
Endowments Act 30 of 1987 (for short "the Act"), against the
respondent/appellant herein declaring that the respondent as
an encroacher and also directing him to deliver vacant
possession of the petition schedule property, failing which
liberty may be given to the 2nd applicant temple to take
possession of the same, beside costs. The appellant herein is
the respondent and the appellants are the petitioners in
O.A.No.303 of 2012 on the file of the A.P. Endowments
Tribunal at Pedakakani (for short "The Tribunal").
4. For the sake of convenience the parties hereinafter
referred to as arrayed in O.A No.303 of 2012 on the file of the
Tribunal.
5. The 2nd petitioner temple Sri Vinayaka Swamy
Temple, Ponnaguru village, is a religious institution and
governed by the Act and it was published under Section 6(c)(ii)
of A.P. Act 30/1987. As per the approved property register, OA
schedule shop rooms are shown as property of the 2nd
petitioner temple. The Endowments department appointed M.
Veeramani as trustee to the 2nd petitioner temple to manage
the same. So, one P.R.T. Rajamanikyam purchased an extent
of 400 square yards of land in S.No.11/11 of Ponnaguru
village, Mallanur Post, Kuppam Mandal by virtue of registered
sale deed dated 4.11.1959. Consequent upon his demise, his
son Ganapathi orally donated the said site to the then Trustee
of 2nd petitioner temple. The said Ganapathi was also executed
settlement deed dated 21.01.2012 in favour of 2nd petitioner
temple on requisite stamp duty of Rs.10,780/- and registration
fee of Rs.1,000/- was also paid by the 2nd petitioner temple,
but the same was not yet registered, The Committee of 2nd
petitioner temple formed by the villagers of Ponnaguru village
leased out the O.A schedule shop rooms to the respondent on
payment of Rs.250/- to Rs.400/- per month for a period of 11
months in the year 2005 and the said lease was not approved
by the competent authority and it was expired in the year
2006. But the respondent is continuing therein without any
valid lease, which amounts towards damages for use and
occupation of the said rooms sine around two years, preceding
the date of filing of the petition. The OA schedule shop rooms
would fetch not less than Rs.1,000/- to Rs.1500/- per month,
if they are put to public auction in regular course and
therefore the respondents are liable to pay damages for use
and occupation from the date of demand/receipt of legal
notices, besides arrears of damages. Since the respondents
are continuing in the petition schedule premises belongs to the
2nd petitioner temple without any valid extension of lease,
which amounts to encroachment, as contemplated under
Section 83 of Act 30/1987, the respondents herein filed O.A
No303 of 2012 before the Tribunal.
6. Per contra, the respondent/appellant filed counter
and denied all the allegations made in the petition. It is
submitted that the in the year 1959 one Sri P.R.T
Rajamanikyam had orally gifted an extent of Ac.0.8 ½ cents of
land to their elders and also to some other persons and their
elders in turn constructed shops with asbestos sheets and
they ae in peaceful possession and enjoyment of O.A schedule
properties for the past 52 years. In the year 1959 their elders
alone constructed Sri Vinayaka Swamy temple with their own
funds. It is further contended that they have been eking out
their livelihood by running the present shops since 1980. No
notices were received by them before registration of the 2nd
petitioner and therefore Act 30/1987 does not apply to the 2nd
petitioner. Moreover the shops are located far away from the
temple and therefore the 2nd petitioner temple is nothing to do
with the said shop rooms. The said trustee must have
colluded with the 1st petitioner for registering the temple under
endowments. Donating the property orally by Ganaptathi, in
favour of 2nd petitioner temple is false and consequently
leasing out of the said shop rooms to the respondents for a
period of 11 months is absurd and there was no lease at all
between the respondents and the 2nd petitioner. it is also
stated that the respondents are having lease with Ganapathi,
who is the absolute owner of the land in S.No.11/11 to an
extent of Ac 0.08 ½ cents and the respondents are paying
monthly rents to the said Ganapathi without fail and he has
been renewing the lease in their favour. Therefore, the 2nd
petitioner/2nd respondent temple has no right to claim as if it
is the absolute owner of the property and consequently the
petition filed for eviction is not maintainable and hence prayed
to dismiss the same.
7. Basing on rival contentions of both parties, the
following issues were framed by the Tribunal:
i) Whether the 2nd petitioner temple is owner of
petition schedule property and the respondent is
in possession as an encroacher under Section 83
of the Act and liable to be evicted?
ii) To what relief?
8. During the course of trial, on behalf of the
petitioners, the Trustee of the 2nd petitioner temple was
examined as PW.1 and got marked Ex.P1 to Ex.P4. On behalf
of the respondents, RW.1 and RW.2 were examined and got
marked Ex.B1 to Ex.B5.
9. After careful examination of the material available
on record and recording the oral and documentary evidence,
the Tribunal has allowed the applications with costs and
directed the respondent to deliver vacant possession of the
petition schedule shop rooms to the 2nd petitioner temple
within one month and shall also pay damages for use and
occupation @ Rs.1,000/- per month preceding three years by
the date of filing of the petition till eviction/delivery of the
property. Challenging the same, the present appeals came to
be filed.
10. The pleadings which are cited by the appellants in
CMA No.245 of 2023, the same are adopted by the other
appellants in other civil miscellaneous appeals i.e., CMA
Nos.245, 259, 261, 262, 325, 330, 334, 376, 389 and 422 of
2023.
11. This Court vide order dated 19.07.2023 in CMA
No.245 of 2023 while issuing Notice before admission, granted
interim stay of operation of the decree and order passed by the
Tribunal in O.A.No.303 of 2012, dated 18.1.2023 subject to
condition that the petitioner depositing an amount of
Rs.1000/- per month towards damages for use and occupation
of schedule property from the date of filing the petition till
eviction/delivery of the property together with costs as per
decree passed by the Tribunal within a period of four weeks,
failing which the interim order stands vacated automatically.
12. Thereafter, when the matter was listed on
16.8.2023, this Court found that, in pursuance of the above
order dated 19.7.2023, the petitioner/appellant has not
complied with the order of this Court and hence the interim
order granted on 19.07.2023 was vacated.
13. Heard Sri K. Srinivas, learned counsel appearing
for the appellant and Sri T.V. S Kumar, learned Standing
Counsel for Endowments appearing for the respondents.
14. On hearing, learned counsel for the appellants
submits that the orders of the learned Tribunal in allowing the
applications are contrary to law, weight of evidence and
probabilities of the cases. He further submits that the
Tribunal failed to consider that even as per the 43 Register
submitted by the temple before the Tribunal shows that only
the measurements were mentioned in the schedule without
there being mentioned the Sy.No. and the land situated in
which village. He further submits that the tribunal also failed
to consider that the appellant already purchased the said land
from original owner of the land without considering the
documents filed by the appellant which were marked under
Ex.P1 to Ex.P5Therefore, the Tribunal failed to consider the
fact that once the property sold by the executants in the year
1959 before commencement of the Act 30 of 1987 and the
question of claiming of the property after lapse of 30 years is
impermissible. He further submits that once Section 43 of the
Act 30 of 1987 the limitation operates from 1959 and prayer to
any tile is vested by any person or his predecessors, in the
instant case the property belong to M.P Manikyam
subsequently it was purchased by the appellant herein. as
such the question of filing OA claiming the property, as illegal
and arbitrary and hence requests this Court to pass
appropriate orders by setting aside the impugned orders.
15. To support his contentions, learned counsel for
the appellants has relied upon a decision of Hon'ble Supreme
Court reported in Balaji Singh versus Diwakar Cole &
others1, wherein the Apex Court held that :
In view of foregoing discussion, we allow the appeal, set aside the impugned order
of the High Court and restore that of the first Appellate Court with modification as
mentioned in para 22.
33) Liberty is granted to the defendants to file in rebuttal any additional evidence
before the Trial Court in support of their case. The Trial Court will allow the
parties to lead oral evidence to prove additional documentary evidence and then
decide the suit afresh on merits strictly on the basis of evidence in accordance with
law without being influenced by any observations made by the first Appellate Court,
the High Court and this Court in their respective orders passed in these
proceedings.
http://Indiankanoon.org/doc/105560256
34) The Trial Court shall ensure disposal of the suit, as directed, within six months
as an outer limit. Parties to appear before the Trial Court on 01.05.2017 to enable
the Trial Court to decide the suit as directed above.
.
16. On a perusal of the above citation, this Court
observed that, the appeal was filed against the suit for
declaration and sought for permanent injunction and the
finding was that the trial Court will allow the parties to lead
oral evidence to prove additional documentary evidence and
then decide the suit afresh on merits strictly on the basis of
evidence. But in the instant case, it is not a case of permanent
injunction; it is only for delivering the vacant possession. The
tribunal has examined both petitioners and respondents and
has given sufficient opportunity for filing their documentary
evidence and both the parties have filed their respective
documentary evidence before the tribunal. Thereafter, the
tribunal, after examining all the material evidence filed by both
the parties, has allowed the applications, while appreciating
the evidence on record. Therefore, the facts of the above case
are not applicable to the present facts of the cases.
17. As seen from the impugned order, it is observed
that, admittedly, the Assistant Commissioner, Endowments
Department, Chittoor registered the 2nd respondent temple
under Section 43 of Act 30/1987 vide Certificate No.1160 in
R.Dis No.B5/5100/2009 Gnl. Dated 30.01.2010. The
Endowments Department appointed one M. Veeramani as
trustee to the 2nd respondent temple to manage the same and
consequent upon his demise, his son Ganapathi orally donated
the said site to 2nd respondent temple on 15.09.1983 and
executed a settlement deed dated 21.01.2012 on paying
requisite stamp duty of Rs.10,780/- and registration fee of
Rs1,000/- was also paid by the 2nd respondent temple. The
temple Committee formed by the villagers of Ponnaguru villae
leased out the O.A schedule shop rooms to the appellant on
payment of Rs.250/- to Rs.400/- per month for a period of 11
months in the year 2005 but the said lease was not approved
by the competent authority and it was expired in the year
2006. But the appellant is continuing therein without any
valid lease which amounts to illegal possession and enjoyment.
It is also observed that the appellant stopped paying any
amount towards damages for use and occupation of the said
shop rooms since around two years, preceding the date of filing
of the petition. The OA schedule shop rooms would fetch not
less than Rs.1,000/- to Rs.1,500/- per month, if they are put
to public auction in regular course and therefore respondents
are liable to pay damages for use and occupation from the date
of demand/receipt of legal notices, besides arrears of damages.
18. It is true that Gift of Immovable property shall be
by a registered instrument and no title would pass on unless it
is duly registered as per Sections 122 and 123 of Transfer of
Property Act. But here is a case where it is the dispute
between the third party and the temple to which the Gift of
property is said to have been given orally with delivery of
possession. The donor, who said to have gifted the property to
the temple orally, also conceded about execution of settlement
deed on proper stamps, of course, it is not yet registered. To
prove the said oral gift was acted upon, the respondents have
filed the copy of Section 43 Register as Ex.P1 Column NO.8 of
Section 43 Register shows the list of all the shop rooms with
measurements and so also, the rent for which they were leased
out. Of course, it is also observed that it did not contain any
entry that how the temple got the said property.
19. It is necessary to look into the cross examination
of RW.1 with regard to oral gift said to have been given in
favour of their elders. She categorically deposited that she did
not file any document to show that Sri P.R.T. Raja Manikyam
gifted the property to their elders. She also deposed that she
cannot file any document to show that the OA schedule
property belongs to her.
20. This Court further observed from the impugned
order that, the appellant has taken five stands i.e., the entire
extent of land of which the petition schedule property is the
part was said to have been gifted by Sri P.R.T. Raja Manikyam
to the elders of the respondents; (2) that the said Raja
Manikyam leased out the same to their elders; 3) the son of
Raja Manikyam by name Ganapathi has let out the shops to
them and he collecting the rents; 4) the said Ganapathi sold
the said property to them and that an agreement of sale was
executed in favour of each of them and the sale deed is not yet
registered and 5) they are only the absolute owners of the
property, since they are paying taxes to the Gram Panchayat,
having got mutated their names.
21. It is also observed from the impugned order that,
as seen from the evidence of RW.1, during his cross
examination, he categorically admitted about execution of
settlement deed at a later point of time i.e., on 21.01.2012 in
favour of the 2nd respondent temple, i.e., confirming the earlier
oral gift and the registration fee was also said to have been
paid by the 2nd respondent temple, but somehow it was not
registered.
22. In view of the foregoing discussion, this Court found
no illegality or perversity in the orders passed by the
Tribunal and warrants no interference by this Court.
23. Finding no merit in the instant civil miscellaneous
appeals and devoid of merits, the same are liable to be
dismissed.
24. Accordingly, all the Civil Miscellaneous Appeals
are dismissed. Further, the respondent in all the appeals is
directed to deliver vacant possession of the petition schedule
shop rooms to the 2nd respondent temple within ONE
month and shall also pay damages for use and occupation
@ Rs.1,000/- per month preceding three years by the date of
filing of the petition till eviction/delivery of property. There
shall be no order as to costs.
25. As a sequel, miscellaneous applications pending, if
any, shall also stand closed.
___________________________________
DR.JUSTICE K. MANMADHA RAO
Date: 08 -12-2023.
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THE HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL MISCELLANEOUS APPEAL Nos.245, 259, 261,
262, 325, 330, 334, 376, 389 and 422 of 2023
Date : 08 .12.2023
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