Judgment vs Unknown
2023 Latest Caselaw 4115 AP

            HON'BLE DR.JUSTICE K.MANMADHA RAO
       CIVIL MISCELLANEOUS APPEAL.No.416 of 2022

JUDGMENT :

The Civil Miscellaneous Appeal is filed aggrieved by the

order and decree dated 13.06.2022 passed in O.A.No.863 of

2013 by the Chairman, Andhra Pradesh Endowments

Tribunal, Amaravati at Pedakakani, Guntur District (for short

„the Tribunal‟).

2. The appellant herein is the 2nd respondent; the

respondents No.1 and 2 herein are the petitioners and the 3rd

respondent herein is the 1st respondent in O.A No.863 of 2013

before the Tribunal.

3. For the sake of convenience, the parties herein after

referred to as arrayed in O.A No.863 of 2013.

4. The impugned O.A was filed by the respondents No.1

and 2 herein under Section 83 of A.P. Charitable and Hindu

Religious Institutions and Endowments Act 30 of 1987 (for short

"the Act") seeking for eviction orders against the 2nd respondent

and for a direction to the 2nd respondent to vacate and handover

the petition schedule property to the 2nd petitioner temple.

5. Brief facts of the case are that the 2nd respondent

temple herein filed a suit on the file District Court, Krishna,

Machilipatnam with regard to the properties situated in Krishna

and Guntur District and thereafter, it was transferred to the

Court of District Judge, Guntur renumbered as O.S No.39 of

1933 and subsequently a preliminary decree was passed on

16.01.1933 and thereafter a Final Decree on 19.12.1933 and

that the scheme settled by the Board in B.O.No.518, dated

14.09.1928 was modified to embody the arrangement of the

properties mentioned therein and the property described in the

schedule annexed to preliminary decree dated 16.01.1933

ordered to be divided into 4 equal shares and accordingly an

extent of Ac.0.32 cents from out of Ac.1.71 cents in R.S No.344

was devolved upon the 4th plaintiff therein Illuru Lingaiah, who

was one of the then Archakas of the 2nd petitioner temple

among the other Archakas shown as plaintiffs therein as

Archakatvam service Inam. Further contended that Iluru

Lingaiah do not have male issue, but he and his wife Suramma

were blessed with only daughter by name „Kondaveeti

Kameswaramma who is none other than the mother of the 1st

respondent herein, but she continued her archakatvam service

in the 2nd petitioner temple through her son as a substitute

Archaka by name Priyadarshan Sarma according to the

allotment of the duties as ordered in Rc.No.A3/11423/2005,

dated 28.02.2006 issued by the 1st petitioner herein.

6. While so, from out of Ac.0.32 cents of land given as

archakatvam service inam, the 1st respondent herein

constructed a temporary house in an extent of Ac.0.06 cents of

land and residing therein by performing their duties as Archaka

in the 2nd petitioner temple through her son as substitute

Archaka. But in the remaining site, the respondent and some

other persons, who have no sort of right, title or interest over

the said property, gradually encroached the piece of the

property i.e., an extent of 200 square yards of site and raised

temporary structures therein and carrying on business without

obtaining any prior permission either from the petitioners

herein or from the 1st respondent or from the higher authorities

of the endowments department. Moreover, not making any

payment towards rent or damages for the said site and the

petitioners herein do not want to continue the 2nd respondent

in the said encroachment further, the present impugned

petition has been filed for eviction before the Tribunal.

7. Per contra, the 2nd respondent filed counter and

denied all the averments and allegations made in the petition.

It is stated that this respondent is not an encroacher at all and

therefore the petition is not maintainable either under law or on

facts and it is liable to be dismissed in limini.

8. The 1st respondent filed counter reiterating the petition

and thereby supported the version of the petitioners stating that

the 2nd respondent and others have encroached into the site in

Sy.No.344 and they are liable to be evicted and hence prayed to

pass appropriate orders.

9. Basing on rival contentions of both the parties, the

Tribunal has framed the following issues:

i) Whether the respondent is an encroacher under Section 83 of the Act 30/1987, if so, liable to be evicted and to pay damages if any?

ii) To what relief?

9. During the course of trial, the Executive Officer of the

2nd petitioner temple filed his affidavit as PW.1 and got

marked Exs.A1 to A5. No witness was examined nor any

documents were marked on behalf of the respondents.

10. After careful consideration of the material on record

and on considering the oral and documentary evidence, the

Tribunal has allowed the application with costs and directed

the 2nd respondent to vacate and handover vacant possession

of the petition schedule property within one month to the 2nd

petitioner temple. The Tribunal made it clear that in the

event of failure of the 2nd respondent, the 2nd petitioner

temple is at liberty to take possession of the property along

with structures therein. The Tribunal also held that the

Station House Officer concerned was also directed to provide

necessary assistance in implementation of the above order to

the petitioners, on requisition, in the event of failure of the 2nd

respondent to comply with the orders. Challenging the same,

the 2nd respondent therein preferred the present Civil

Miscellaneous Appeal.

11. Heard Mr. T.Ramakoteswara Rao, learned counsel

for the appellants as well as Smt. P.Radhika, learned counsel

for the respondents. Perused the material on record.

12. Learned counsel for the appellant submits that

the present appeal was filed against the Order and Decree

dated 13.06.2022 passed by the learned Tribunal, wherein

the appellants have been declared as the encroachers under

Section 87 of the Endowments Act for being in illegal

possession of the suit schedule property admeasuring an

extent of 240 sq. yards out of an extent of Ac.0.32 cents of

land in R.S.No.344, of Veeravalli Village, Bapulapadu

Mandal, Krishna District, and the suit schedule property

admeasuring an extent of 200 Sq. yards from out of an extent

of Ac.0.32 cents of land in R.S.No.344 of Veeravalli Village,

Bapulapadu Mandal, Krishna District and thus ordered

eviction of the appellant herein from the suit schedule

properties as stated supra.

13. Learned counsel for the appellant contended that

the Tribunal erred in passing orders against the claim to pass

eviction orders against the appellant directing to vacate and

handover the vacant possession of the petition schedule

property to the respondent temple and also erred in

determining the appellant as encroacher as he has not

vacated from the schedule property, as there was no dispute

with regard to possession and enjoyment by the appellant

whose possession and enjoyment and have been in settled

possession from his ancestors since 1950. He further

submits that the tribunal ought not to have taken into

consideration of the issue settled in the presence of surveyor

in surrendering the land to the concerned for the claim of

alleged evicting the appellant/encroacher by filing O.A.

Learned counsel mainly contended that the Tribunal ought to

have dismissed at the outset as the appellant is in possession

and enjoyment as on the date of filing of O.A and no

adjudication of matter before the tribunal and amounts to

violation of principles of natural justice for the grievance of

the appellant.

14. On the other hand, learned counsel for the

respondents submits that while denying the allegations made

in the appeal, contended that from out of Ac 0.32 cents of

land given as Archakatvam service, the 3rd respondent herein

constructed temporary house in an extent of Ac.0.06 cents of

land and residing therein by performing their duties as

Archaka in the 2nd respondent temple through her son as

substitute Archaka. But in the remaining site, the

respondent and other persons encroached the piece of

property and carrying on business without obtaining any

permission and moreover not making any payment towards

rent or damages for the said site and the respondents No.1

and 2 do not want to continue the appellant in the said

encroachment, they filed an application before the tribunal

and the Tribunal has rightly concluded and passed

appropriate orders in favour of the respondents No.1 and 2

herein. Therefore, prayed to dismiss the appeal.

15. As seen from the impugned order, this Court

observed that, originally the 2nd respondent Gopala Swamy

vari temple was altered as Sri Kondeswara Swamy temple

because of the disputes that arose with regard to the scheme

framed by the orders for Hindu Religious Endowments,

Madras on 14.9.1928. There is no dispute or ambiguity in

respect of the title of the appellant/2nd respondent for Ac.0.32

cents of land from out of Ac.1.71 cents in Sy.No.344 of

Veervalli Village. It is further observed that an Advocate

Commissioner was also appointed for the purpose of getting

surveyed i.e., the disputed place to decide that whether place

where the 2nd respondent/ appellant has been

residing/staying comes under the survey No.344 or 345?

Thereafter, the said Advocate Commissioner conducted

survey in the presence of both parties and accordingly

submitted report along with the sketch to scale. As per the

survey report given by the MRO, Bapulapadu Mandal, the

possession of Sri Boyapati Madhusudana Rao is coming into

the survey No.345 and whereas the other respondents by

name Govada Satyanarayana, Mallavolu

Venkateswaramma/appellant and Nidumolu Subba Rao are

in survey No.344. Further, none of the parties have raised

any objection with regard to the report.

16. This Court further observed that, the appellant

basically did not put-forth any evidence at all even to

substantiate her contention of adverse possession. If it is the

Government property she has to establish her continuous

and uninterrupted possession of around 30 years. Moreover,

in the instant case, it is proved to be the temple property.

Further, as seen from the Ex.A3-Section 38 Register, it is

quiet manifest that the schedule property belongs to the 2nd

respondent temple alone and the 2nd respondent has been

admittedly in possession and enjoyment and that too without

any lease or licence or any valid document from the

competent authority, and therefore, the appellant is an

encroacher and she being an encroacher cannot be permitted

to remain in possession and therefore, the Tribunal rightly

concluded and rightly held that the appellant/2nd respondent

is liable for eviction and hence directed to vacate and

handover the possession of the petition schedule property to

the 2nd respondent temple.

17. In view of the foregoing discussion, this Court

found no illegality or perversity in the order passed by the

Tribunal.

18. Finding no merit in the instant civil miscellaneous

appeal and devoid of merits, the same is liable to be

dismissed.

19. Accordingly, the Civil Miscellaneous Appeal is

dismissed. Further, appellant/2nd respondent is hereby

directed to handover the vacant possession of the petition

schedule property to the 2nd respondent temple herein on or

before 08 .10.2023. There shall be no order as to costs.

20. As a sequel, miscellaneous applications pending, if

any, shall also stand closed.

____________________________ DR. K. MANMADHA RAO, J.

Date : 08 -09-2023 Gvl

HON'BLE DR.JUSTICE K.MANMADHA RAO

C.M.A.No.416 of 2022

Date : 8 -09-2023

Gvl