Bingi Yellamma And 4 Others vs The Asst. Commissioner ...
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     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

           Civil Miscellaneous Appeal No.395 OF 2011

JUDGMENT:

Aggrieved by the Judgment (Award) dated 31.03.2011 in

O.A.No.227 of 2010 (Old No.33 of 2005 of D.C.Hyd.) (hereinafter

will be referred as 'impugned award') passed by the learned A.P.

Endowments Tribunal at Hyderabad (hereinafter will be referred

as 'the Tribunal'), the respondents/opposite parties has filed the

present Civil Miscellaneous Appeal.

2. For the sake of convenience, hereinafter, the parties will

be referred as per their array before the learned Tribunal.

3. The brief facts of the case are that as under:

a) The applicant No.1 i.e., the Assistant Commissioner,

Endowments Department, Mahaboobnagar has forwarded the

proposals submitted by applicant No.1 i.e., Sri Anjaneya Swamy

Temple, Budamarsu Village, Weddepally Mandal,

Mahaboobnagar District represented by its Executive Officer

under Section 83 of the A.P.Charitable and Hindu Religious

Institutions and Endowments Act (hereinafter will be referred as

'the Act') for eviction of the respondents from the petition

schedule property i.e., Ac.13.25 cents in Sy.No.79 of

Budamarsu Village, Waddepally Mandal, Mahaboobnagar 2 MGP,J CMA_395_2011

District belonging to applicant No.2. It is alleged in the said

proposals that the respondents, who are the tenants, after

expiry of lease period, have been continuing in the property

unauthorisedly without any valid lease extension since long

time and without approval orders of the competent authority.

The respondents were not even regular in paying amounts

towards damages for use and occupation and also failed to

vacate the property despite issuing notices that they fell in

arrears towards damages for use and occupation and that the

schedule property fetch huge amount if leased out as per rules

in public auction. The application submitted by the applicant

No.1 was taken on file and notice under Section 83 (2) of the Act

was issued to the respondents to put forth their defence.

b) The respondents filed counter denying the averments of

the application Smt. Bingi Yellamma in obedience to this

Court's orders dated 09.07.1992 in W.P.No.11549 of 1988, had

invoked the provisions under Section 87 of the Act by filing a

petition before the Deputy Commissioner within stipulated time

as per Clause Nos.1 and 2 and in furtherance of clause 3 of the

order, she paid a sum of Rs.2,000/- through Bank. However,

the petitioners ignoring all the aforesaid obligations merely at

the best of Smt. Leelavathamma without ascertaining as to 3 MGP,J CMA_395_2011

whether she is Archaka or not, filed the present O.A.No.33 of

2005 before the Court saying that the respondents as tenants

and not paying rents. The petitioners did not furnish the

extract from the book of endowments due to non availability of

any entry with them in respect of the above land and also about

the Archakatwam of subject temple in favour of Smt.

Leelavathamma.

c) It is further contended that the grandmother of

respondent Nos.2 to 5 i.e., Smt.Bingi Eedamma purchased the

said land from Venakta Seshaiah under document dated

21.03.1952 and since then Smt. Bingi Eedamma and her

daughter i.e., Smt. Yellamma and thereafter respondent Nos.2

to 5 are in possession and enjoyment of the said land. The

entries from the extract of Protected Tenancy Register officially

prepared by the Revenue Department in the year 1951 reveals

that Krishnamacharyulu is the Inamdar and whereas Bingi

Thimma is the protected Tenant. The entries in Sethwar 1348

Fasli or equivalent to 1939 A.D. reveals the name of Poojari

Krishnamacharyulu as a Khatedar/Inamdar. The extract of

Inam Register 1360 Fasli or equivalent to 1939 AD relied upon

by the petitioners having filed before the District Revenue

Officer, Mahaboobnagar in Case No. A1/3/ROR/1985 shows 4 MGP,J CMA_395_2011

the Khatedar's name against Sy.No.79 at S.No.39, as Poojari

Krishnamacharya. The entries of Khasara Pahani at column

No.5 shows Poojari Vani Chenu and Maddur Eedamma's

(grandmother of respondent Nos.2 to 5) name was incorporated

as an occupant, which is a conclusive proof that the land is not

temple land. In Pahani/Adangals, the name of Krishnamachary

as Poojari of Anjaneya Swamy is written indicates as it is treated

as Chirunama, but the Temple's name is not recorded in

Pahani/Adangal.

d) As there was no entry of Temple's name in Revenue

records and Endowment Records, Smt. Leelavathamma, who

was not amicable to the family of the respondents and their

ancestors, has applied to the District Revenue Officer,

Mahaboobnagar vide Lr. No.B1/2308/84, dated 16.12.01984

under the repealed provision of Section 15 of the Record of

Rights Regulation 1357 Fasli for the correction of entries by

removal of name of Smt. Maddur Edamma from column No.13

of Khasra Pahani in 1954-55 and to insert by way of

substitution of the name of "Anjaneya Swamy Temple) in the

patta column and correct the same in the interest of Temple.

The District Revenue Officer, Mahaboobnagar disposed of the

said petition of Smt. Leelavathamma in Case No.A1/3/ROR/85 5 MGP,J CMA_395_2011

by order dated 21.05.1986. It is the root case for invoking the

litigation by Leelavathamma that the Court has no jurisdiction

to resume the Inam land to original inamdar and the case does

not attract the provisions of A.P. (T.A.) ROR in Regulations,

1358 Fasli and remanded to the Sub-Collector, Gadwal for

taking action under Section 74 of the Act in File No. B/2697/86

dated 11.07.1986. The Sub Collector has issued directions to

the Mandal Revenue Officer, Waddepally to resume the said

land in Sy.No.79 to the Government custody.

e) The appeal preferred against the District Revenue Officer,

Mahabubnagar in Case No.KB6/6453/86 was disposed of on

21.02.1988 in W.P.No.8077 of 1988 and subsequently

W.P.No.11549 of 1988. The respondents have complied with

the orders in W.P.No.11549 of 1988 and for no fault on the part

of the Respondents, the claim has been initiated on the flimsy

allegations by the petitioners on the pretext that the Deputy

Commissioner, Endowments Department, Hyderabad has

informed through Lr.No.L.Dis.B2/7675/99, dated 20.11.1999

that Bingi Yellamma has not filed any O.A. before the Deputy

Commissioner in this matter. The petition filed by the Assistant

Commissioner, Endowments Department, Mahaboobnagar as

many as 13 years after the disposal of W.P.No.11549 of 1988 is 6 MGP,J CMA_395_2011

neither tenable nor warranted in the eye of law and it is fit to be

dismissed in limini.

f) During the course of enquiry, on the behalf of the

applicants, Smt. Leelavathi was examined as PW1 and got

marked EXs.A1 to A5. On the other hand, on behalf of

respondents, RWs 1 and 2 were examined and Exs.B1 to B25

were got marked. After considering all the aspects, the learned

Tribunal has allowed the application by directing the

respondents to vacate and hand over the schedule premises

within one month by written intimation to the petitioners or else

to vacate the respondents or anybody claiming through them

with the help of police aid. Aggrieved by the same, the

respondents have preferred the present Civil Miscellaneous

Appeal.

4. Heard both sides and perused the record.

5. It is the contention of the learned counsel for the

claimants that the learned Tribunal erred to have proceeded on

the erroneous presumption that the mother of the respondents

has not filed any application under Section 87 of the Act and

has not complied with the orders of the High Court in

W.P.No.11549 of 1988 dated 09.07.1992. As seen from the

record, aggrieved by the orders dated 24.02.1988 passed by the 7 MGP,J CMA_395_2011

District Revenue Officer, Mahabubnagar confirming the order

dated 11.07.1986 passed by the Revenue Divisional Officer,

Gadwal, the appellant No.1 i.e., Bingi Yellamma has filed

W.P.No.11549 of 1988, wherein this Court advised the

petitioner to invoke the provisions contained under Section 87

of the Act within one month from the date of order and also

ordered that the petitioner shall not be disturbed from the

possession of the land in question subject to deposit of

Rs.2,000/- before the Assistant Commissioner Endowments,

Mahabubnagar. The learned Tribunal in the impugned order

observed that the petitioner failed to comply with the orders of

this Court in W.P.No.11549 of 1988. In order to establish that

the petitioner has complied with the orders of this Court in

W.P.No.11549 of 1988, the claimants relied upon Exs.B1 and

B2. Ex.B1 is the copy of application alleged to have been filed

under Section 87 of the Act and Ex.B2 is the copy of cheque for

Rs.2,000/-.

6. It is further contention of the claimants that until and

unless claim under Section 87 of the Act is determined, the

proceedings under Section 83 of the Act are not maintainable.

However, the learned Tribunal rejected Exs.B1 and B2 holding

that they are self - serving and has been fabricated for the 8 MGP,J CMA_395_2011

purpose of defending the application. As seen from the copy of

Ex.B1, there is no signature of the petitioner on each and every

paper and there is no evidence to show that proper court fee

was paid for filing such petition before the Assistant

Commissioner. If at all the claimant has filed petition under

Section 87 of the Act, certainly she could have pursued the

same and initiated necessary steps thereafter. Except filing the

copy of petition, the claimants have not filed any material to

establish that the claimants have complied with the orders of

this Court in W.P.No.11549 of 1988. Furthermore, this Court

has directed the Deputy Commissioner in W.P.No.11549 of 1988

to adjudicate the petition filed by the petitioner after affording

reasonable opportunity within six months thereof. If at all the

petitioner has filed petition under Section 87 of the Act and the

Deputy Commissioner failed to adjudicate the dispute within six

months as per the directions of this Court, certainly the

claimants were at liberty to move a contempt application against

the Deputy Commissioner for not complying with the orders of

this Court. It is not the case of the claimants that in spite of

their regular persuasion, the learned Commissioner failed to

adjudicate the said application till date. Thus, any amount of

suspicion arises with regard to compliance of the orders of this

Court by the claimants. Moreover, the Deputy Commissioner, 9 MGP,J CMA_395_2011

Endowments Department, Hyderabad has informed through

Lr.No.L.Dis.B2/7675/99, dated 20.11.1999 that Bingi

Yellamma has not filed any O.A. before the Deputy

Commissioner in this matter.

7. In the order dated 09.07.1992 in W.P.No.11549 of 1988

this Court has also observed that if the petitioner fails to file the

petition within the stipulated time, the order will cease to have

effect and respondents are at liberty to enforce the impugned

orders. Since the claimants have not complied with the orders

in W.P.No.11549 of 1988, the respondents therein were at

liberty to enforce the orders dated 24.02.1988 passed by the

District Revenue Officer, Mahabubnagar confirming the order

dated 11.07.1986 passed by the Revenue Divisional Officer,

Gadwal.

8. It is contended by the claimants that entire proceedings

have been initiated at the instance of one Leelavathamma and is

purely a personal litigation and the applicant No.1 ought not to

have given a helping hand to the said Leelavathamma by filing

the O.A. It is pertinent to note that Smt. Leelavathamma is also

claiming her rights over the subject property and in pursuance

of the same she has also filed O.S.No.20 of 2001 to declare the

title in respect of subject property on the name of Sri Anjaneya 10 MGP,J CMA_395_2011

Swamy Deity, Budamarsu Village but the same was dismissed

vide Judgment, dated 19.09.2003, wherein Smt.

Leelavathamma was examined as PW1. Smt. Leelavathamma as

PW1 deposed that defendant No.1 therein i.e., Bingi Yellamma

failed to comply with the orders of the High court. PW1

admitted in her cross examination that her grandsons along

with her were performing poojas and that though defendant

No.1 is in possession of the suit properties, she is not paying

any amount either to PW1 or to Endowment Department. PW1

also admitted that suit land belongs to temple only; only

Endowment Department is entitled for possession of the suit

property and plaintiff is entitled for lease amount for

maintenance of the temple. Thus, it is clear that Smt.

Leelavathamma is agitating her rights with regard to lease

amount to maintain the temple. It is not the case of the

claimants that Smt. Leelavathamma is not the Archaka of the

said temple. Hence, it cannot be said that it is a personal

litigation of Smt. Leelavathamm, more particularly, when she is

claiming lease amount for the maintenance of the temple.

9. It is further contended by the claimants that there are

absolutely no records whatsoever to establish that the land

belongs to the temple and that the land is purely a private land 11 MGP,J CMA_395_2011

of the respondents having purchased by their mother from the

Inamdar way back in the year 1952 and ever since they are in

possession of the property and at no point of time nor anywhere

in the record, which have mentioned that the land belongs to

the temple. As seen from the judgment in O.S.No.20 of 2001

the learned Senior Civil Judge at Gadwal observed that Sri

Anjaneya Swamy Temple is the owner of the subject property;

defendant is in possession without paying any lease either to

temple or to Archakatvam; it is the duty of the Endowment

Department to take action against the defendant No.1 for taking

possession of the land. In support of their contentions, the

claimants got examined RW2, who deposed that the subject

property is the private land of the poojari and not temple land.

As seen from the impugned judgment, RW2 gone to the extent of

deposing that there is no Anjaneya Swamy Temple in the past or

at present and that he worked as Mali Patel of the Village

Budamarsu only for the period 1972-78. Thus, it is evident that

RW2 is not aware of the facts of the case. Though RW1 was

examined on behalf of the claimants, he went to the extent of

deposing that the subject property is their own private dry land,

which is quite contrary to the version of the claimants in the

pleadings. However, RW1 again admitted that the documents

they placed reliance show the land referred in the revenue 12 MGP,J CMA_395_2011

records as Poojarivari Chenu. RW1 further admitted that the

subject land belongs to Poojari Krishnamachari and under him

his father's brother Bingi Thimmanna was tenant or Kouldar

and not a protected tenant even. Hence, it is clear that the

claimants have improved their version in the evidence when

compared to their pleadings. If at all the grandmother of the

claimants has purchased the land in the year 1952, then what

made RW1 to depose that his father's brother Bingi Thimmanna

was tenant or Kouldar of the land belonging to Poojari

Krishnamachari. The claimants in Ex.B1 claiming that their

grandmother i.e., Smt.Bingi Eedamma purchased the subject

property from Venakta Seshaiah under document dated

21.03.1952; since Krishnamacharyulu died issues less, his

brother Venkata Seshsaiah sold away the land to Smt. Bingi

Eedamma in the year 1952. On the other hand, in the very

same Ex.B1 the claimants are again contending that Smt. Bingi

Eedamma was in occupation of the subject land since times

immemorial and the same was devolved to her from her

ancestors. The claimants cannot approbate and reprobate on

the same aspect in two different ways. Thus, it is clear that the

claimants have approached the Court with unclean hands.

                                13                           MGP,J
                                                     CMA_395_2011

10. The Tribunal ought to have seen that the revenue

authorities had also issued pattedar passbooks in favour of the

mother of the respondents and it should have established that it

is purely a private land and not a temple land. It is contended

that even as per the version of claimants the entries of Khasara

Pahani at column No.5 shows Poojari Vani Chenu and Maddur

Eedamma's (grandmother of respondent Nos.2 to 5) name was

incorporated as an occupant, which is a conclusive proof that

the land is not temple land. It is settled law that entries in the

revenue records do not conclusively confer title to a property,

nor do they have any presumptive value on the title and they

only enable the person in whose favour mutation is recorded, to

pay the land revenue in respect of the land in question. Though

the claimants are claiming that their grandmother purchased

subject lands in the name of her daughter through registered

sale deed dated 21.03.1952, there is no material produced by

the claimants to substantiate the same. Even as per the above

said Khasara Pahani at column No.5 the name of Maddur

Eedamma's name was shown as occupant apart from

mentioning Poojari Vani Chenu. As stated supra, the entries in

the revenue records do not conclusively confer title to a property

and those entries are only meant for the purpose of collecting

revenue in respect of the land in question. Thus, based on mere 14 MGP,J CMA_395_2011

entries in the revenue records, title of the subject land cannot

be decided.

11. It is further contended by the claimants that the learned

Tribunal has made much of the fact that the mother the

respondents namely Yellamma did not choose to contest the

suit filed by Leelavathamma. Admittedly, Smt. Bingi Yellamma

has not contested the suit, though she was shown as defendant

No.1 in the said suit. Though the suit filed by Smt.

Leelavathamma was dismissed, the learned Judge has made

certain observations with regard to wrongful possession of the

subject property with Smt. Bingi Yellamma. It is the contention

of the claimants that the evidence in a suit, which is dismissed

cannot be a basis for allowing the application filed under

Section 83 of the Act and in support of the same, the learned

counsel for the claimants/appellant relied upon a decision of

the High Court of Chhattisgarh in Shriram v. Suresh Kumar

(dead) 1, wherein it was observed that against adverse finding, if

any, has been recorded against the defendants, no appeal lies

under the provisions of Civil Procedure Code against such

finding, more particularly, when the said suit was dismissed

finally. On one hand, the claimants are contending that the

1 2020 Law Suit (Chh) 314 15 MGP,J CMA_395_2011

findings in the suit are binding the parties to the suit

proceedings and thereby the proceedings under Section 83 of

the Act are not maintainable and on the other hand again

contending that the evidence in a suit, which is dismissed

cannot be a basis for allowing the application filed under

Section 83 of the Act. It is pertinent to note that the learned

Tribunal has not allowed the application for eviction of the

claimants from the subject property solely based on the findings

in O.S.No.20 of 2001 and in fact, while allowing the said

application, the learned Tribunal has considered various

aspects such as the evidence of PW1 and admissions of RWs 1

and 2 in OA claim, documentary evidence in the form of Exs.A1

to A5 and Exs.B1 to B25 and arrived to a conclusion. It is

pertinent to note that the Smt. Leelavathamma, who is PW1 in

O.S.No.20 of 2001, was also examined as PW1 in O.A.No.227 of

2010. Thus, it is clear that the learned Tribunal has considered

the evidence of Smt. Leelavathamma, who was examined as

PW1 in O.A.No.227 of 2010, which is subject case in this

matter.

12. Even for the sake of arguments, if at all the above

contentions of the claimants that the temple land is a private

property is considered as true and correct, they are not entitled 16 MGP,J CMA_395_2011

to claim any right over subject property in view of non

compliance of the orders of this Court in W.P.No.11549 of 1988.

13. In view of the above discussion, viewed from any angle,

this Court is of the considered opinion that there is no infirmity

or illegality in the impugned judgment passed by the learned

Tribunal and thereby, interference of this Court with the

impugned judgment is unwarranted. Therefore, this Civil

Miscellaneous Appeal is devoid of merits and liable to be

dismissed.

14. Accordingly, the Civil Miscellaneous Appeal is dismissed.

There shall be no order as to costs. The

appellants/respondents are directed to vacate and hand over

the schedule premises to the respondents/applicants within one

month from the date of receipt of copy of this order, failing

which, the respondents/applicants are directed to proceed in

accordance with law.

Pending Miscellaneous applications, if any, shall stand

closed.

_______________________________ JUSTICE M.G.PRIYADARSINI Date: 18.11.2023 AS