Varanasi Surya Prakash Rao vs The State Of Andhra Pradesh
2023 Latest Caselaw 240 AP

  IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

        THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

                    WRIT PETITION No.13024 OF 2021
                      (THROUGH PHYSICAL MODE)



Varanasi Surya Prakash Rao,
S/o. Satya Joga Rao, aged about 78
years, Occ: Railway Employee
(Retired), R/o. D.No. 8-147, Canal
Road, Indrapalem, Kakinada-533 006,
East Godavari District.

                                                     ......Petitioner
Vs.

      1. The State of Andhra Pradesh,
         rep. by its Principal Secretary,
         Revenue (Endowments)
         Department, Velagapudi,
         Amaravati,
         Guntur District.
      2. The Commissioner,
         Endowments Department,
         Velagapudi, Amaravathi,
         Guntur District.
      3. The Regional Joint
         Commissioner, Endowments
         Department, Multi Zone-I,
         Kakinada, East Godavari
         District, Andhra Pradesh.
      4. The Assistant Commissioner,
         Endowments Department,
         Rajahmundry, East Godavari
         District, Andhra Pradesh.
      5. Sri. Malleshwara Swamy
         Devasthanam, rep. By its
         Executive Officer cum
         Manager, Kuyyeru Village,
         Kajuluru Mandal, East
         Godavari District, A.P.
                                                 ....Respondents

6. Mandal Surveyor, Kajuluru Mandal, East Godavari District.

.... Proposed Respondent.

ORAL ORDER:

This writ petition is filed questioning the tender cum auction

notice issued by the respondent No.5 dated 24.06.2021 to auction the

leasehold rights of the land admeasuring Ac.2-51 cents situated in

Survey No.175/7 of Kuyyeru Village, Kajuluru Mandal, East Godavari

District on 05.07.2021 for the years 2021-22 to 2023-24.

2. Heard the counsel for the petitioner and the learned standing

counsel for the respondent No.5.

3. The counsel for the petitioner submits that the petitioner's great

grandfather by name late Sri Pendyala Kamayya, S/o.Ramayya had

two sons namely Late Sri Pendyala Kameswara Rao and late Sri

Pendyala Malleswarudu. The petitioner's grandmother namely Late

Smt.Pendyala Suramma is the wife of Late Sri Pendyala Kameswara

Rao. The petitioner's great grandfather acquired the subject land by

duly paying the arrears of land revenue to the State which was

defaulted by late Sri Nandikolla Tataiah. After the demise of the great

grandfather of the petitioner, the total extent of the land in Ac.4-89

cents was partitioned by his two sons. Initially there was an oral

partition and the Ac.4-00 of land fell to the share of late Sri Pendyala

Malleswarudu and the remaining Ac.0-89 cents fell to the share of the

petitioner's grandfather late Sri Pendyala Kameswara Rao. After his

death the subject land devolved upon his wife late Smt.Pendyala

Suramma. She executed a registered settlement deed on 22.05.1972

under the document No.3160 of 1972 settling several extents of lands in

favour of the petitioner who is the daughter's son including the subject

land of Ac.0-89 cents out of Ac.5-50 cents covered under the

proceedings of the respondent No.3 dated 11.12.2014. The said

partition was reduced into writing under a registered document

No.2153 of 1933 dated 12.09.1933. The petitioner's great grandfather

late Sri Pendyala Kamayya founded Sri Seetha Rama Swamy Temple

in Kuyyeru village of the then Kakinada Taluq of East Godavari

District during the year 1895. To keep up his reputation in fulfilling his

efforts to establish the temple, he volunteered Rs.2/- per month for the

maintenance of Nanda Deepam to the temple and continued to pay the

same during his lifetime. The same was also recorded in the

compromise decree in O.S.No.71 of 1901 which was instituted for

removal of the Archaka when he did not perform his duties properly.

When there was a high handed dispossession from the so called temple

committee members in the year 1921, other sharers namely Pendyala

Venkata Suba Rao represented by his paternal grandmother namely

Smt.Pendyala Venkamma filed O.S.No.81 of 1921 on the file of the

Subordinate Judge, Cocanada (Kakinada) against the said committee

members for recovery of subject land being the 'A' schedule and other

extents admeasuring Ac.0-89 cents being the 'B' schedule property.

The subject land was described in the said suit as the land to an extent

of Ac.4-00 in Survey No.178/2 of Kuyyeru village being the 'A'

schedule property therein whereas the land to an extent of Ac.0-89

cents in Survey No.179 (new Survey No.269/4) was mentioned as

'B' schedule land. Both the said extents are covered under paragraph 1

of the proceedings of the respondent No.3 dated 11.12.2014.

The said suit in O.S.No.81 of 1921 was ultimately ended in a

compromise decree dated 22.12.1922 on the file of the Subordinate

Judge, Cocanada (Kakinada). According to the said decree, the subject

land to the extent of 'A' schedule proerpty shall be handed over to the

other sharer being the plaintiff therein and the Ac.0-89 cents to the

petitioner's grandfather. Further, it was agreed on behalf of the

petitioner's side to pay 20 bags against the subject land of 'A' Schedule

(Ac.4-00 cents) and 4.5 bags against Ac.0-89 cents of 'B' schedule

corresponding to the suit in O.S.No.485 of 1921 on the file of District

Munsif Court, Cocanada. The said decrees became final. From the

generations thereafter the petitioner's side family members have been

observing the same till date by paying 4.5 bags against Ac.0-89 cents of

the subject land. Further during the year 1938 again some of the

members of the subject temple committee again raised dispute and

highhandedly encroached upon the subject land, which led to filing of

O.S.No.115 of 1938 on the file of District Munsif, Cocanada. The

petitioner's grandmother Smt.Pendyala Suramma, W/o.Pendyala

Kameswara Rao along with other sharer Sri Pendyala Venkata

Subbaiah, S/o.P.Mameswarudu filed the said suit against the said

committee members and the Hindu Religious Endowments Board,

represented by the then President for recovery of Ac.4-00 cents

including subject extent of Ac.0-89 cents. Similarly some of the

committee members also filed O.S.No.445 of 1938 for recovery of

schedule property therein for declaration and damages for use and

occupation with reference to another temple namely Sri Parvathi

Ammavaru. Yet another group of persons filed O.S.No.399 of 1939

claiming to be the trustees for recovery of arrears. All the three suits

were tried together, after contest, the District Munsif, Cokanada was

pleased to decree the suit filed by the other sharers and

Smt.P.Suramma in O.S.No.115 of 1938 for recovery of subject lands

vide common judgment and decree dated 28.01.1941 while recording

their willingness to pay the allowance fixed in the compromise decree

in O.S.No.81 of 1921 by declaring that they are entitled to the schedule

properties and they shall be put in possession of the subject properties

and for mesne profits. The said common judgment of the District

Munsif, Cocanada dated 28.01.1941 was challenged by the defendants

therein in appeal Nos.69, 71 and 72 of 1941 on the file of the

Subordinate Judge, Cocanada, whereas the appeal No.69 of 1941 was

corresponding to O.S.No.115 of 1938 which was filed by the

petitioner's grandmother and other sharer. Initially, the said appeals

were allowed while observing that the plaintiffs i.e., the grandmother of

the petitioner Smt.P.Suramma and other sharer have not acquired any

right by adverse possession as against the then trustees vide judgment

dated 30.09.1942.

Having aggrieved by the appellate court judgment,

the petitioner's grandmother Smt.P.Suramma and other sharer

preferred S.A.No.612 of 1943 on the file of the High Court of

Judicature at Madras. The Hob'le High Court in its judgment dated

25.10.1944 was pleased to allow the second appeal by setting aside the

judgment of the first appellate court while restoring the judgment of the

trial court in O.S.No.115 of 1938. Thus the judgment of the trial court

holding that the petitioner's grandmother and the other sharer are

entitled for possession and enjoyment of the subject land became final

and thus the petitioner has been enjoying all these decades till date

while complying the undertaking given therein to provide 4.5 bags

against Ac.0-89 cents of land and 20 bags against Ac.4-00 cents of

paddy for the lands in their possession to the temple every year without

any default. While so after commencement of the Act 30 of 1987, the

respondent No.5 has issued a notice on 20.03.1988 to the other sharer,

referring to the provisions of new Act and directed to handover the

possession of the subject land. The petitioner's grandmother gave

suitable answer while enclosing all the relevant documents. Upon

satisfying the same further proceedings were dropped and there was no

attempt thereafter interfering with the possession and enjoyment of the

petitioner. However, from the petitioner's side, they have been paying

worth of 20 bags of paddy by the other sharer and 4.5 bags by the

petitioner as per the terms of the decree in O.S.No.81 of 1921 and the

respondent No.5 has been passing the receipts to that effect as there is

no default on the part of the petitioner till date. While so, the

respondent No.3 in Rc.No.A1/3574/2014 dated 11.12.2014 directed

the respondent no.5 to take possession of the subject land out of

Ac.5-50 cents including the subject land of Ac.0-89 cents and the other

sharers' land in an extent of Ac.4-15 cents which are in the possession

and enjoyment of the petitioner to conduct public auction to give it for

lease along with the other extents. The respondent No.4 directed to

include all these lands in the list to be maintained under Section 22-A

of the Registration Act and correction of entries in the register to be

maintained under Section 43 of the endowments Act. The respondent

No.4 further directed to complete the said process of taking over of

possession and conducting of public auction before 31.12.2014.

In pursuance of the same, the respondent No.5 published a news item

on 20.12.2014 in the District Edition of Vaartha a telugu News daily

intimating that public auction will be conducted on 29.12.2014 at 10:00

AM which includes the subject lands. Having been aggrieved by the

same, to the extent of Ac.0-89 cents out of Ac.5-50 cents referred to in

paragraph 1 of the said proceedings dated 11.12.2014 and auction

publication, the petitioner was constrained to file W.P.No.39818 of

2014 on the file of the erstwhile High Court and there was an interim

order dated 24.12.2014 staying the public auction and dispossession of

the petitioner.

The subject matter of O.S.No.445 of 1938 on the file of the

District Munsif Court, Cocanada was to the extent of Ac.3-38 cents of

land in the old S.No.129 in Kuyyeru village, Cocanada Taluk, East

Godavari District. On resurvey, the old survey No.129 was given a new

number in Survey No.174. The said extent comprises of Ac.2-51 cents

of Zeroyathi land in Survey No.175/7 and Ac.0-91 cents of tank in

Survey No.175/8. This was sub divided and the above mentioned

Ac.2-51 cents forms part of Survey No.175/7 and the pahani copy for

the Fasli 1428 reflects the same. In IB Register also the petitioner's

name is shown against the extent of Ac.2-51 cents situated in Survey

No.175/7 as pattadar issued for the Fasli 1428 dated 05.07.2018. The

Katha No.558 was inadvertently shown as Survey No.558 even though

the correct survey number is old S.No.129 corresponding to the new

Survey No.175/7 and 175/8 of Koyyeru village, Cocanada Taluk, East

Godavari District.

The respondent No.5 sought to auction the lease hold rights in

respect of Ac.2-51 cents situated in the old Survey No.129 in the year

2017 as if it belongs to the respondent No.5 temple without issuing any

pamphlet or notice. The erstwhile High court was pleased to pass an

interim order in WP MP No.20949 of 2017 in the writ petition dated

18.05.2017. Later on the respondent No.5 filed I.A.No.6 of 2017 to

vacate the said order stating that the respondent no.5 temple is nothing

to do with the survey No.558 and the land sought to be auctioned

relates to the land in an extent of Ac.0-89 cents out of Ac.5-50 cents in

Survey No.259/4 and it belongs to Sri Seetha Ramaswamy temple,

Kuyyeru village, Kajuluru mandal, East Godavari District.

Then the order was passed by the Hon'ble High Court on 02.05.2018.

Then the petitioner made enquiries with the elders in the family and

also verified with the revenue records and the records of the respondent

No.5 temple. The respondent No.5 temple is nothing to do with the

Ac.2-51 cents in Survey No.175/7 or old Survey No.129. On

verification, it is further learnt that I-B register with reference to Ac.0-

89 cents in Survey No.269/4 belongs to one Smt.Davuluru Rajeshwari,

D/o.Bulli Veeraswamy. Section 43 Register of Sri Seetha Rama

Swamy temple or the respondent No.5 temple do not show the land

admeasuring Ac.2-51 cents situated in Survey No.175/7 of Kuyyeru

village, Kajulu Mandal, East Godavari District. The Deputy Collector

vide its letter No.111/SLP/2014 dated 25.09.2014 shows that Sri

Seetha Rama Swamy temple is not having any lands in Survey

No.175/7. The executive officer of the respondent No.5 temple refused

to receive the maintenance for Dhoopa Deepa Naivedyam as per the

arrangement before the Madras High Court. The survey No.558 which

was mentioned in the earlier writ petition No.10173 of 2017 is a Khata

number but it was inadvertently shown as survey Number and correct

facts were not stated before the Hon'ble High Court before passing the

order dated 02.05.2018 in I.A.No.6 of 2017. Once again the executive

officer of the respondent No.5 temple issued auction notice dated

09.06.2021 to auction the leasehold rights in respect of Ac.2-51 cents in

SurveyNo.175/7 showing it as survey No.178/7 even though there is

no such record to the effect that the respondent No.5 temple is having

lands in Survey No.175/7 or Survey No.178/7. The auction was

postponed. The respondent No.5 again issued fresh tender notice dated

24.06.2021 stating that the auction would be held on 05.07.2021.

The respondent No.5 sought to interfere with the land of the petitioner

under the guise of conducting auction in respect of Survey No.175/7

and indirectly trying to interfere with the land of the petitioner contrary

to the arrangement made before the Madras high Court. Once again it

is to be submitted that the respondent No.5 temple does not own any

land in these Survey numbers and they have no jurisdiction to conduct

any auction.

4. The standing counsel for the respondent No.5-temple by relying

upon the counter affidavit of the respondent No.5 submits that the

respondent No.5 is not aware of the family details of the petitioner and

the inter se family partition made between them and the wills and the

registered documents relating to the land measuring Ac.0-89 cents out

of Ac.5-59 cents in Survey No.269/4 which does not belong to the

respondent No.5 temple and the subject matter of the respondent No.5

temple is only relating to Ac.2-51 cents in Survey No.558. The

averment relating to the Seetharama swamy temple and the filing of

O.S.No.71 of 1901 is no way connected with the respondent No.5

temple. The averments made at paragraphs 4 to 10 of the petition are

relating to the filing of O.S.No.81 of 1921 for certain lands measuring

Ac.0-89 cents in Survey No.179 and not in Survey No.558.

The O.S.No.81 of 1921 and compromise made therein, O.S.No.115 of

1938, O.S.No.445 of 1938, O.S.No.399 of 1939 and the appeals filed

therein i.e., appeal Nos.69,71 and 72 of 1942 and the S.A.No.612 of

1943 and A.S.No.612 of 1943 and restoring the same are all relating to

Sri Seetharama Swamy Temple, Kuyyeru village, Kajuluru Mndal,

East Godavari District and the respondent No.5 temple is nothing to

do with the same. Sri Seetharama Swamy temple, Kuyyeeru village,

Kajuluru Mandal, East Godavari District is the absolute owner of the

total extent of Ac.19-77 cents in which the subject property is a part of

it. The present subject property out of Ac.5-50 cents is in an extent of

Ac.0-89 cents in Survey No.269/4 of Kuyyeru village, Kajuluru

Mandal, East Godavari District. The present subject property is the

exclusive property of Sri Seetharama Swamy Temple, Kuyyeru village,

Kajuluru Mandal, East Godavari District. In the property register

prepared under Section 38 of the Madras Endowments Act, 1925, the

entry of ownership was incorporated. The present subject property

including the other property in an extent of Ac.19-77 cents forms part

of the respective property registers which are maintained under the

statutes i.e., under Section 38 of the Madras Endowments Act, 1925,

the Endowments Act 17/66 and the present act of Endowments Act

30/87. The present subject property and the other property in an extent

of total Ac.19-77 cents was enrolled for the maintenance of the temple

as per section 46(3) of the Act 30/1987. Hence, the said entries made in

the property register shall be presumed to be genuine unless contrary is

proved. Even as per the decree and judgment of the Hon'ble High

Court of Madras in S.A.No.612 of 1943, payment of 4½ khata bags of

paddy to the temple for enjoying the present subject property of the

petitioner and his predecessors is only as licensees. Under Section 160

of the Endowments Act 30 of 1987, the prior judgments and decrees,

compromises etc would become null and void and as such the

petitioner is continuing illegally as encroacher in the present subject

property as defined under Section 83 of the Endowments Act 30 of

1987. When Sri Seetharama Swamy Temple, Kuyyeru village,

Kajuluru Mandal, East Godavari District proposed to take proceeding

under Section 83 of the Endowments Act 30 of 1987 the petitioner filed

W.P.No.39475 of 2015 before the erstwhile High Court of Andhra

Pradesh and the same is being contested by the said temple by filing

counter affidavit. In that writ petition there is an interim order of stay

of eviction of the petitioner therein by the respondents therein. But the

Hon'ble High Court has not prohibited the said temple in following the

due procedure to evict the petitioner from the scheduled land. Hence,

Sri Seetharama Swamy Temple, Kuyyeru village, Kajuluru Mndal,

East Godavari District filed O.A.No.388 of 2016 for eviction of the

petitioner herein and it is pending before the A.P.Endowments

Tribunal for its adjudication. Suppressing the pendency of the said OA

and without impleading the original landlord Sri Seetharama Swamy

Temple, Kuyyeru village, Kajuluru Mandal, East Godavari District

and by showing the wrong survey numbers, extents etc the present writ

petition is filed by the petitioner against the respondent No.5 temple

and others. The present land in dispute which is an extent of Ac.2-51

cents is exclusively belonging to the respondent No.5-temple and they

are not owned by Sri Seetharama Swamy temple as the later is the

owner of Ac.5-50 cents in Survey No.269/4 as stated above. The

standing counsel further submits that the survey No.129 was long back

subdivided and the present land in dispute in this writ petition is the

part of land in oldest survey No.129/8 for which the R.S.Number was

175 given along with other subdivided survey Numbers 129/5, 129/6,

129/7 and 129/8 (other part of Ac.0-91 cents) and in the fair adangal

the extent of Ac.2-51 cents and another extent of Ac.0-91 cents in

S.No.129/8, R.S.No.175 is in the name of Sri Parvathi Ammavari

l;and which means that the said lands are exclusively belonging to the

respondent No.5 temple Kuyyeru village, Kajuluru Mandal as there is

no separate temple for Parvathi Ammavaru in and around Kuyyeru

village and the idol of Ammavaru is with Sri Malleswara Swamy vari

idol in the respondent No.5 temple. In fact prior to allotting Survey

No.129 with sub divisions the oldest survey number for the entire

extent in S.No.129 was S.No.558 which means that subsequently the

same was changed with sub division survey Nos.129/1 to 129/8 and

again resurveyed and again survey numbers as 175 and at present the

survey number for the extent of Ac.2-51 cents is Survey No.175/7

which is also approved by the Special Grade Deputy Collector, Land

Protection and Endowments, Kakinada after making thorough Survey.

The standing counsel for the respondent No.5 further submits that in

fact from time to time the leasehold rights of the lands are being put to

public auction and from time to time the tenants are being changed.

The petitioner was never in possession of any part of the land of the

respondent No.5 temple more particularly for an extent of Ac.2-51

cents situated in the present Survey No.175/7 of Kuyyeru village.

Likewise on 17.05.2017 the lease hold rights of the land was put to

public auction and in pursuance of the same the highest bidder Sri

N.Narayana Rao, S/o.Suryanarayana continued as tenant from the

period 2017-18 to 2019-20. Althrough the proceeds i.e., rents collected

are clearly mentioned and noted in the DCB Register i.e., demand

collection and balance register which is being subjected to auditing by

the department from time to time. The land was not noted in Section

43 register of the respondent No.5 temple and now the proceedings are

being initiated for adding the present property also in Section 43

Register under Section 43(10) of the Endowments Act 30 of 1987. The

fact remains that all the revenue records, the DCB Register and the

land being given on lease from time to time by way of public auction as

explained above show that the petitioner or any other has no manner of

right in any part of the subject land in an extent of Ac.2-51 cents which

is otherwise belonging to the respondent No.5-temple. It is only an

attempt of the petitioner and his family members to grab the property

of the respondent No.5 temple as they are very much aware that they

have no case to succeed which is pending before the endowments

Tribunal. The petitioner suppressed the material facts and obtained an

ex parte order in I.A.No.1 of 2021 and I.A.No.2 of 2021 in

W.P.No.13024 of 2021 dated 09.07.2021 and as such it is liable to be

vacated and the main petition is liable to be dismissed.

5. The learned Government Pleader for Endowments also by

relying upon the counter affidavit filed by the respondent No.3

supported the case of the standing counsel who appeared for the

respondent No.5-temple.

6. The standing counsel also filed a Memo dated 30.08.2022

enclosing the letter of the Special Grade Deputy Collector,

Land Protection Cell, Endowments Department, Kakinada along with

the FLR true copy in survey No.175/7 and FMB sketch clarifying that

the subject land of this writ petition is in an extent of Ac.2-51 cents in

Survey No.175/7(old Survey No.129/8 part) and the details of the

pattadar as 755 Sri Parvati Ammavaru. The standing counsel also upon

instructions clarified that in the auction notice dated 09.06.2021 by

typographical mistake it was shown as Survey No.178/7 in stead of

Survey No.175/7 at Sl.No.7 of the table given in the said public

auction notice. Hence, admittedly the subject land is situated in Survey

No.175/7.

7. In the light of the above said rival submissions and averments,

it is to be seen that there is a dispute with regard to the title and possession of

the subject land situated in an extent of Ac.2-51 cents in Survey No.175/7 of

Kuyyeru Village, Kajuluru Mandal, East Godavari District. The petitioner

claimed various extents of land in different survey numbers basing

upon the different courts judgments, decrees and compromises which

were persued by his predecessors in the family, the Will and settlement

deeds said to have been executed by his ancestors as discussed above

leading to the claim of ownership and possession over the subject land

of this writ petition also. But the respondents seriously disputed the

same as stated supra contending that there is no flow of title and

establishment of possession by the petitioner over the subject land of

this writ petition, that apart claimed ownership and possession of the

respondent No.5 over the subject land. Hence it is a case for tracing of

the title and possession of the subject land which requires a detailed

enquiry/trial with the examination of all the parties concerned,

adducing of oral evidence and marking of the supporting link

documents on both the sides, appointment of an advocate-

commissioner if necessary to note down the physical features of the

subject land, examination of the revenue officials and the other officials

concerned for the purpose of explaining the classifications and sub

divisions occurred if any with respect to the subject land etc and the

said exercise cannot be undertaken by this court while exercising the

jurisdiction under Article 226 of the Constitution of India. Hence, it is

just and necessary to refer the dispute to the learned Endowments

Tribunal to go into the above said aspects/issues. Whether it is an

endowed property or specific endowment or private land as contended

by the petitioner shall be determined by the tribunal.

8. In view of the same, the petitioner is directed to approach the

Endowments Tribunal by filing the OA under the provisions of Act

30/1987 within four weeks from the date of receipt of this order against

the respondents herein by also arraying Sri Seeta Rama Swamy

Temple, Kuyyeru Village, Kajuru Mandal, East Godavari District as

one of the respondents for declaratory reliefs and other reliefs with

respect to the subject land of this writ petition. In the event of filing the

same, the learned Tribunal shall dispose of the same as expeditiously as

possible strictly in accordance with law by giving an opportunity to all

the parties concerned for participating in the enquiry/trial as indicated

above. Subject to further orders that may be passed by the learned

Tribunal, the respondent No.5 is at liberty to proceed with the auction

with respect to the subject land by informing the same to the

participants concerned in the public auction. In default of the petitioner

an adverse inference can be drawn with respect to the claim of the

petitioner over the subject land of this Writ Petition.

9. Accordingly, the writ petition is disposed of. Interim order if any

is deemed to have been vacated. No costs.

As a sequel the miscellaneous applications pending if any shall

stand closed.

_______________________________ JUSTICE B. KRISHNA MOHAN January 19, 2023 LMV

HON'BLE SRI JUSTICE B. KRISHNA MOHAN

WRIT PETITION No.13024 OF 2021

January 19, 2023

LMV