The Government Of Andhra Pradesh, vs Sri Anjaneya Swamy Temple ...
2022 Latest Caselaw 3552 Tel

     THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY

               SECOND APPEAL No.353 OF 2017

JUDGMENT:

1. This second appeal is filed under Section 100 of the Civil

Procedure Code, 1908 (for short 'CPC') by the unsuccessful

defendants assailing the concurrent findings of the trial Court in

O.S.No.2323 of 2006 and the first appellate Court in A.S.No.204

of 2009.

2. The plaintiff-Sri Anjaneya Swamy Temple Committee has

filed the original suit in OS No.2323 of 2006 on the file of the IV

Senior Civil Judge, City Civil Courts, Hyderabad, for perpetual

injunction in respect of suit schedule property all that, piece and

parcel of the temple land admeasuring Ac.0.21 guntas in Survey

No.403, Shaikpet Village, Banjara Hills, Hyderabad with precise

boundaries as mentioned in the schedule of property. The trial

Court after receiving the written statement of the defendants

framed issues and recorded the evidence on both sides. On

behalf of the plaintiff, PWs.1 to 4 are examined, Exs.A.1 to A.38

are marked, whereas on behalf of the defendants, DW.1 is

examined, Ex.B.1 to B.8 (a) are marked. After closing the 2 AVR,J SA_353_2017

evidence on both sides, on hearing the learned counsel on either

side and on careful appreciation of the oral and documentary

evidence available on record, decreed the suit of the plaintiff

granting perpetual injunction in favour of the plaintiff against

the defendants and their men from interfering with the

possession of the plaintiff over the suit schedule property.

3. Feeling aggrieved by the judgment and decree dated

29.04.2009 of the trial Court, the defendants have preferred an

appeal in AS No.204 of 2009, the learned XIV Additional Chief

Judge (FTC), City Civil Courts, Hyderabad, has confirmed the

judgment and decree of the trial Court in its entirety and

consequently, the appeal was dismissed.

4. Feeling aggrieved by the concurrent findings recorded by

the trial Court and the first appellate Court, the unsuccessful

defendants have preferred this second appeal. As per the

Memorandum of Second Appeal, the following substantial

questions of law are formulated:

i) Whether a committee stating to have been constituted for the purpose of administering a temple maintain a suit in respect of title and possession over and upon land claimed to be in possession of the said temple?

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     ii)    Whether the suit is liable to be dismissed on account

of improper description of plaintiff as per cause title?

iii) Whether the suit of the plaintiff is liable to be dismissed on account of non-issuance of notice u/s.80 of CPC, but so also non-filing of the application u/s.80 clause-2 of CPC thereby seeking leave to institute the suit without issuing mandatory notice u/s.80 of CPC?

iv) Whether the suit ought to have been decreed granting perpetual injunction as per the operative portion of the judgment and decree, more so in view of observation in the body of the judgment that states the appellants/defendants are not precluded from taking recourse to law to evict the plaintiff from the suit schedule property?

v) Whether the orders passed by duly constituted authority i.e., the HRC, that predate the institution of the suit whereby by specific orders of protection and possession of the State property have been passed, can be over ruled by the trial court as well as the appellate court?

vi) Whether the civil court would have jurisdiction to entertain the dispute pertaining to a duly registered temple in spite of the matter being covered under the Endowments Act?"

5. Heard the learned Government Pleader for Arbitration on

behalf of the appellants and the learned counsel for the

respondent/plaintiff. Perused the material placed on record.

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The submissions made on either side have received due

consideration of this Court.

6. I have carefully perused the judgments of the trial Court

and the first appellate Court. The plaintiff-Anjaneya Swamy

Temple Committee has filed a suit for perpetual injunction in

respect of suit schedule property to restrain the defendants from

interfering with the peaceful possession and enjoyment of the

suit schedule property. The plaintiff has been claiming the suit

land stating that it is in physical possession and enjoyment of

the same as per the documents under Ex.A.1, A.4, A.8, A.11,

A.13, A.14, A.19 and A.37. Admittedly, the suit schedule land in

Survey No.403 is a government land. The claim of the plaintiff is

that the suit land is in possession of the temple and they are not

claiming any declaration or title in respect of the same. However,

they have made efforts with the Government for allotment of the

suit land to the temple. The plaintiffs have also filed a certified

copy of the judgment in OS No.2792 of 1986 which is marked as

Ex.A.4, wherein it was held that the plaintiff-temple is in

possession of suit schedule property. The plaintiff has examined

as many as four witnesses. Out of which, PW.4-Inspector of 5 AVR,J SA_353_2017

Endowments Department has clearly confirmed the possession

of the plaintiff over the suit schedule property by the time of

filing of the suit. Ex.A.37 is plan drawn by Inspector,

Endowments Department confirming the possession of the

plaintiff-temple over the Ac.21 guntas of land.

7. Be it stated that the trial Court in para-18 of the judgment

has recorded finding to the effect that both the oral and

documentary evidence adduced on behalf of the plaintiff prima

facie establishes possession of the plaintiff-temple over the suit

schedule property since 1985. Whereas, the defendants have

not filed any document to substantiate their possession over the

suit schedule property after the dates mentioned on Exs.A.1,

A.4, A.8, A.11, A.13, A.19, A.28 and A.37. While appreciating the

documentary evidence of defendants, the trial Court has held

that the documents under Exs.B.1 to B.7 do not prove the

possession of the Government over the suit schedule property.

8. The learned Government Pleader for Arbitration submits

that the plaintiff has failed to issue notice under Section 80 of

CPC, the suit for injunction simplicter against the real owner the

Government is not maintainable. But both the trial Court and 6 AVR,J SA_353_2017

the appellate Court failed to appreciate this aspect and simply

decreed the suit and the first appellate Court has confirmed the

same.

9. I have given my anxious and thoughtful consideration to

the points raised by the learned Government Pleader for

Arbitration. In fact, the trial Court has answered both the

points. While relying on the principles relied in K. Peerareddy v.

Commissioner of Endowments1 and T.V. Parangodan v. District

Collector Trichur2 and also the contents of Ex.A.9 wherein the

intention of the plaintiff in informing the defendants not to

interfere with the possession is made out, held that no separate

notice as contemplated under Section 80 of CPC was required in

view of earlier litigation between the parties. Therefore, I do not

find any perversity or irregularity in the findings recorded by the

trial Court on this aspect.

10. The learned Judge of the first appellate Court on careful

appreciation of the oral and documentary evidence on record,

after hearing both sides formulated two points as contemplated

2006 (2) ALT 222

AIR 1989 Kerala 276 7 AVR,J SA_353_2017

under Order-41 Rule-31 of CPC and while answering point

No.(i), it was held that though the Government is the owner of

the suit schedule property, the Government has no right to

dispossess the plaintiff except under due process of law.

Therefore, the plaintiff is entitled for perpetual injunction as

prayed for. I do not find any perversity or irregularity in

appreciation or re-appreciation of the evidence available on

record by the trial Court and the first appellate Court.

11. While answering point No.(ii), the first appellate Court has

held that the contentions raised by the defendants are not

acceptable, as their own witness-DW.1 in his cross-examination

admitted that the plaintiff-temple is in possession of suit

schedule property as per Exs.A.1 and A.13 and in fact he has

also admitted about the proposals written by the Government to

the temple. Accordingly, the first appellate Court has held that

there are no reasons to interfere with the findings recorded by

the trial Court.

12. I have given my thoughtful consideration to the substantial

questions of law that are proposed by the appellants in the

Memorandum of Second Appeal.

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i)    The first point deals with the maintainability of suit in

respect of the suit schedule property. The second point deals

with the description of the plaintiff as per the cause title. The

third point deals with non-issuance of notice as contemplated

under Section 80 of CPC. All these points were categorically

answered by the trial Court and the first appellate Court. I do

not find any irregularity or perversity in the findings recorded by

the trial Court as well as the first appellate Court on this aspect.

ii) Point No.(iv) deals with granting of perpetual injunction

with an observation in the body of the judgment that the

appellants/defendants are not precluded from taking recourse to

law to evict the plaintiff from the suit schedule property. It is

true that when the plaintiff is in settled possession of the suit

schedule property and the defendant is owner of the same, the

defendant is entitled to take possession of suit schedule property

by due process of law and the defendants/government

authorities are not entitled to take law into their own hands and

dispossess the plaintiff. In fact, their own witness-DW.1 and the

official witness-PW.4 admitted the possession of the suit

schedule property with the plaintiff as observed in the 9 AVR,J SA_353_2017

judgments of the trial Court and the appellate Court. Therefore,

in that view of the matter, in my considered opinion, nothing

prevents the defendants/appellants from taking legal recourse

for eviction of the plaintiff from the suit schedule property.

iii) In a suit for injunction simpliciter, question of title will be

looked into incidentally, the possession of the parties over the

suit schedule property as on the date of filing of the suit is the

paramount consideration. Undisputedly, the oral and

documentary evidence adduced on behalf of the plaintiff coupled

with the admissions in the evidence of DW.1 establishes the

plaintiff's possession over the suit schedule property. Therefore,

both the Courts below have rightly concluded that the plaintiff is

entitled for perpetual injunction. I do not find any perversity or

irregularity in the findings recorded by the Courts below.

iv) Point No.(v) deals with the orders of State Human Rights

Commission and fencing the suit schedule property to protect

the same and the point No.(vi) deals with the jurisdiction of the

civil Court to entertain the suit, as the temple is duly covered by

Endowments Department.

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13. Be it stated that the original suit is not filed by the plaintiff

for declaration of title and it is a suit for injunction simpliciter,

in such circumstances, the jurisdiction of the civil Court under

Section 9 of CPC is not excluded. In that view of the matter, I do

not find any question of law involved much less substantial

question of law in any of the points that are formulated under

the caption 'substantial questions of law' in the grounds of

appeal.

14. The trial Court and the first appellate Court, while

appreciating the oral and documentary evidence available on

record, assigned valid reasons to decree the suit and for

dismissal of the first appeal. All the grounds as indicated/

extracted above from the memorandum of grounds of appeal are

either only on factual side or all those issues are discussed at

length by the trial Court and the first appellate Court and

answered while appreciating the evidence available on record.

15. Section 100 of CPC deals with second appeals. The

existence of a substantial question of law is the sine qua non for

the exercise of the jurisdiction under the amended provisions of

Section 100 of CPC. The jurisdiction of the High Court is now 11 AVR,J SA_353_2017

confined only to entertain such appeals wherein substantial

question of law has specifically set out in the memorandum of

appeal and formulated by the Court (Thiagarajan v.

Venugopalaswamy B. Koil3 and Dharmarajan v. Valliammal4).

16. Recently, the Hon'ble Apex Court in Gurnam Singh (D) by

LRs and others v. Lehna Singh (D) by LRs5 while dealing with the

scope of Section 100 of CPC held at para-18 as under:

"18. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.

Therefore, we are constrained to observe as above and remind the High Courts the limitations under Section 100 of the CPC and again hope that High Courts would keep in mind the legal

(2004) 5 SCC 762

(2008) 2 SCC 741

AIR 2019 SC 1441 12 AVR,J SA_353_2017

position before interfering in Second Appeal under Section 100 of the Code of Civil Procedure."

17. When the facts of the present case are tested on the

touchstone of the principles laid by the Hon'ble Apex Court in

the above decisions, the answer is in the negative. No question

of law much less substantial question of law is made out either

from a plain reading of the judgments of the trial Court and the

first appellate Court or from the points formulated by the

appellants under the caption 'substantial question of law' in the

grounds of second appeal. No material has been over looked nor

any inadmissible evidence has been considered by the Courts

below for recording such findings.

18. In fact, both the Courts below on appreciating and re-

appreciating the entire evidence available on record clearly

observed that apart from the oral evidence of PW.4-Inspector of

Endowments Department, DW.1 in his cross-examination

supported the plaintiff's case and the plaintiff-temple is able to

establish its possession over the suit schedule property as on

the date of filing the suit. Since the defendants/ Government is

the owner of the suit schedule property, nothing prevents the 13 AVR,J SA_353_2017

Government from taking the possession of the suit schedule

property by due process of law, as the plaintiff-temple is in

settled possession, entitled for perpetual injunction and also

entitled to continue their possession till evicted by due process

of law. The judgments of the trial Court and the first appellate

Court do not disclose any irregularity or perversity and there is

no scope for interference in such concurrent findings recorded

by the Courts below. No question of law much less substantial

question of law is made out in the second appeal.

19. In the result, the second appeal is dismissed at the

admission stage itself confirming the concurrent findings of the

trial Court in O.S.No. 2323 of 2006 and the first appellate Court

in A.S.No.204 of 2009. However, in the circumstances of the

case, there shall be no order as to the costs.

As a sequel, miscellaneous applications, if any, pending in

this second appeal, shall stand closed.

________________________________ A.VENKATESWHARA REDDY, J

Date: 08-07-2022 Isn