LPA/179/1991 of SRI VEERASWAMI VARI OF PADDA TADEPALLIGU Vs ILLURI RAMAYYA AND 17 OTHERS on 29 December 2009

COMMON JUDGMENT:

Per the Hon'ble Sri Justice Ghulam Mohammed These two appeals under, Clause 15 of the LettersPatent, are filed by the same parties as the dispute withregard to the property in question is also same, hence,both the appeals are heard together and are disposed ofby this common judgment.

L.P.A.Nos.178 & 179 of 1991 are filed against thecommon Judgment and Decree passed by the learnedsingle Judge of this Court, in A.S.No.82 of 1978 andA.S.No.35 of 1979, dated 22-11-1986, respectively.

For the sake of convenience, the parties arereferred to as arrayed in the court below.

The undisputed facts in nutshell are as under:

Both the abovementioned Appeal Suits (A.S.Nos.82of 1978 and 35 of 1979) are directed against theJudgment and Decree in O.S.No.143 of 1970, made bythe Subordinate Judge, Eluru. A.S.No.35 of 1979 was preferred by defendants 1 to 3, while A.S.No.82 of 1978was preferred by the plaintiff-diety.

It is the case of the plaintiff that the suit scheduleproperty was the absolute property of the diety. Defendants 1 to 3 were Archakas and were actingas de-facto trustees. In the year 1963, though dejure trustees were appointed, defendants 1 to 3 did nothandover the management of the subject temple to them. It is further stated that defendants 1 to 3 sold Ac.5.41cents in Item No.5, the whole of Item No.9, Ac.0-98 centsin Item No.10, Acs.10-29 cents in Item No.11 and Ac.0-62½ cents in Item No.12 of the Plaint ‘A’ schedule propertyto defendants 4 to 18 and put them in possessionthereof. It is contended that the defendants 1 to 3 haveno right to alienate the temple properties and thealienations made in favour of defendants 4 to 18, are notbinding on the plaintiff. The defendants are liable todeliver possession and to account for mesne profits forthree years prior to the filing of the suit.

Defendants 1 to 3 filed a written statementcontending that the plaintiff is entitled to Item Nos. 3, 4and 8 of the plaint ‘A’ schedule properties only, whereasItem Nos.1, 2, 5 to 7 and 9 to 12 are concerned, theywere the absolute owners, and also that Item Nos.6, 9and 12 originally belong to their great grand fatherAyaluri Ganganna, who was granted the same by the Collector Godavari District on 05-02-1874 and sincethen, the successors in interest of him have been inpossession and enjoyment. They also contended thatthey are in continuous possession of Item Nos.1, 2, 5 and7 for the last 90 years and thereby they perfected theirtitle by adverse possession. One Mr. T. Lakshmipathiclaiming to be the trustee of the plaintiff temple, filedO.P.No.124 of 1944 in the District Court, West Godavari,Eluru, under Section 78 of the Madras Hindu ReligiousEndowments Act, for recovery of the Plaint ‘A’ scheduleitems except Item No.8 against the 1[st] defendant andothers and that the said petition was dismissed, therefore,the claim of the plaintiff temple is barred by limitation.

The 10[th] defendant is in possession of Ac.2-50cents. The 12[th] defendant is in possession of As.1-20cents. The 2[nd] defendant is in possession of Ac.1-20cents of Item No.11. The 1[st] defendant is not inpossession of any item of the Plaint ‘A’ schedule lands. Item Nos.3, 4 and 8 are not in possession of thedefendants.

Defendants 4 to 7 and 14 filed a separate writtenstatement and contended that the 3[rd] defendant executedan agreement of sale dated 25-03-1968 in favour of the4[th] defendant to sell 6 cents in Item No.12 of the Plaint ‘A’schedule land and put him in possession of that site, having received the entire consideration. The 4[th]defendant has raised a thatched shed therein.

The 5[th] defendant contended that he purchased 8cents of site in Item No.12, under a registered sale deeddated 28-05-1959 from the 3[rd]defendant, andconstructed a house therein. The 6[th] defendantcontended that he purchased Ac.0-12 cents in Item No.12from defendants 1 and 2 under a registered sale deeddated 11-04-1959, and constructed a house therein. The14[th] defendant contended that himself and onePasumarthi Pattayya purchased 230 square yards in ItemNo.12 from the 1[st] defendant under a registered saledeed dated 26-09-1956 and that they constructed a shedtherein.

Defendants 8 to 13 and 15 to 17 filed a separatewritten statement in respect of Item No.11 of the Plaint ‘A’schedule property. They stated that the 8[th] defendantpurchased Ac.3-00 cents of land in Item No.11 from the2[nd] defendant and his sons under a registered sale deeddated 25-03-1960. He also purchased one acre in ItemNo.11 from the 1[st] defendant under a registered saledeed dated 19-07-1960. He also purchased Ac.3-16 inItem No.15 from the 2[nd] defendant under a registeredsale deed dated 02-06-1969. He also purchased Ac.2-15cents in Item No.5 of the Plaint ‘A’ schedule property from the 3[rd] defendant under a registered sale deed dated 01-06-1966. He improved the lands.

The 9[th] defendant contended that he purchasedAc.1-25 cents in Item No.11 from the 3[rd] defendant undera registered sale deed dated 23-01-1962. He alsopurchased Ac.1-90 cents in Item No.9 from the 3[rd]defendant under a registered sale deed dated 14-09-1965. The 20[th] defendant contended that he purchasedAc.2-50 cents in Item No.11 of the Plaint ‘A’ scheduleproperty from the 3[rd] defendant under a registered saledeed dated 19-04-1961. Defendants 11 and 16contended that they jointly purchased Ac.1-01 cents inItem No.11 of the Plaint ‘A’ schedule property from the 3[rd]defendant under a registered sale deed dated 03-07-1962. The 12[th] defendant purchased Ac. 0-60 cents inItem No.11 from the 1[st] defendant and another Ac.0-60cents from the same defendant respectively under tworegistered sale deed dated 10-05-1967 and 19-06-1968. The 13[th] defendant purchased Ac.0-98 cents in ItemNo.11 from the 3[rd] defendant under a registered saledeed dated 29-10-1967. The 15[th] defendant purchasedAc.0-50 cents in Item No.11 from the 1[st] defendant undera registered sale deed dated 06-06-1962. The 17[th]defendant purchased Ac.0-90 cents in Item No.11 fromthe 3[rd] defendant under a registered sale deed dated 22- 04-1963.

It is stated that all the defendants were purchasersas mentioned above for consideration and in good faithand that they have been in enjoyment of the propertyabsolutely, and that they have perfected title by adversepossession. Defendants 19 to 23 filed a memo adoptingthe written statement of the 8[th] defendant. The 18[th]defendant remained ex parte.

The learned subordinate Judge framed 14 issuesfor consideration.

Issues

Issues 2, 3, 4, 9 and 10 deal with the question oftitle and adverse possession. Upon those issues, it wasconceded by the defendants, as mentioned earlier, thatthey were not claiming any title in respect of Item Nos.3, 4and 8 of the plaint schedule. In respect of the others, thedefendants claimed title on the basis of certaindocuments or title by way of adverse possession. Thelearned Subordinate Judge then considered thedocumentary and oral evidence and came to theconclusion that the plaintiff had established title inrespect of all the suit properties and that the defendantshad not established adverse possession and that the suitis liable to be decreed in respect of all the Items in thePlaint ‘A’ schedule.

Under Issues 5 and 11, the learned Subordinate Judge held that defendants 4 to 17 are bona fidepurchasers for value but that they did not prove any titleto the property and they were not entitled to recover theamount spent by them for improvements. He also heldthat defendants 4 to 7 had constructed houses byspending the amounts mentioned by them in theirevidence. He further held that defendants 8 to 13, 15 and17 had spent various amounts as deposed to by them forreclamation and manuring of the respective landspurchased by them. He then stated that Issue 6 need notbe considered as the 12[th] defendant was a party to thesuit. He held on Issue No.7 that defendants 1 to 18 areliable to render account for 3 years prior to the filing of thesuit. On issue No.10, he held that inasmuch as thedefendants are bona fide purchasers and as defendants4 to 7 have constructed houses and the other defendantshave toiled and improved the lands inasmuch as theplaintiff has, in any event, leased out the land, it was a fitcase where defendants 4 to 7 who constructed thehouses should be continued in possession on paymentof reasonable lease amount and that so far as the otherdefendants who purchased the land are concerned, theyshould also be continued subject to payment of leaseamount to be fixed by the plaintiff temple. In case any ofthe defendants committed default in paying the leaseamount, the temple would be at liberty to takepossession. He held on issue No.1 relating to jurisdiction, that no arguments were advanced andsimilarly on issue Nos.8 and 12, he held that the suit wasnot barred by time and that the Court fee paid wascorrect. Finally, under Issue No.13, he passed a decreefor possession of the entire Plaint ‘A’ schedule propertiesbut stated that defendants 4 to 18 shall continue inpossession on payment of reasonable lease amounts orproduce to the plaintiff temple, to be fixed by the templeauthorities from time to time and that in default, thetemple could recover possession of the property fromsuch of the defendants who committed default. He alsoheld that defendants are liable for profits for three yearsprior to suit, and that the plaintiff temple should file aseparate application under Order 20 Rule 12 CPC.

Against the said Judgment, defendants 1 to 3preferred A.S.No.35 of 1979 insofar as the Judgment wasagainst them and the alliances, contending that the CivilCourt has no jurisdiction to try the questions arising in thecase and that even otherwise, on merits, defendants 1 to3 have made out a case against the temple in respect ofthe suit schedule items, except Item Nos.3, 4 and 8,which have been conceded in the lower Court. Defendants 1 to 3 have impleaded their alliances also asrespondents.

The plaintiff preferred A.S.No.82 of 1978 as againstthe finding and directions given under Issue No.10,

contending that the direction given by the learned Judgefor continuing defendants 4 to 18 in possession aslessees is not warranted.

The learned single Judge of this Court clubbedboth the appeals together, heard and held that theJudgment of the learned Subordinate Judge is quiteunsatisfactory and does not deal in detail with thedocumentary evidence on record. The learned Judgenoted the survey numbers of the suit items and theirextents and correlated them to the earlier documents andthe previous survey and settlements, right from 1275Fasli, i.e., 1865. The learned Judge noted that so far asItem Nos.3, 4 and 8 are concerned, the defendants havenot claimed any title and since, they have conceded thetitle of the deity and there has been no dispute in thelower Court nor has there been any dispute before thisCourt, they need not be dealt with. The dispute,therefore, remained in respect of other items, viz., ItemNos.1, 2, 5, 6, 7, 9, 10, 11 and 12 of the Plaint ‘A’schedule.

The learned Judge held that since the plaintschedule gives survey numbers of the land as obtainingfor some period before the filing of the suit and that in theMadras Presidency there have been separate surveysconducted roughly in 1860, 1890 and some time in 1930and each time the survey went on for some years and separate survey and settlements were made, inasmuchas the document in this case relate to the 19[th] century,the above survey numbers were correlated with the oldsurvey numbers, which are available from Ex.A-3 –certified copy of the resettlement register of the suitvillage. The learned Judge perused Ex.B-1- certifiedcopy of the register of lands in Tadepalli Village ofErnagudem Taluk, showing the names of the pattedarsfor Fasli 1275 (1865/66), which is in respect of SurveyNumbers 503, 504, 584 and 820 and correlated the oldsurvey numbers, extent and nature of land and on whomthe patta was granted. He has also considered Ex.A-2 –Inam Fair Register, dated 07-12-1869. After consideringthe voluminous material, the learned Judge, set aside theJudgment and Decree of the lower Court and dismissedthe suit except as regards Item Nos. 1 to 5 and 8 and partof Item No.10 (44 cents in Survey No.517) and theDecree will be against defendants 1 to 3 and defendants5 and 13. However, the possession of the 8[th] defendantrelating to Ac.5-41 cents in Item No.10 will not bedisturbed unless they fail to exercise the option to abideby the payment of reasonable rent that may be fixed bythe Assistant Commissioner as mentioned in theJudgment. So far as defendants 1 to 3 are concerned,they are liable to restore possession of Item Nos.1, 2, 3, 4and Ac.1-98 cents in Item No.5, the entire extent of ItemNo.8 and Ac.0-04 cents in Item No.10, if not already delivered. The mesne profits payable by the above saiddefendants will be only for a period of six yearsbackwards from that day. The mesne profits will have tobe ascertained with regard to the extent in actualpossession of all or any of defendants 1 to 3 and 13, andshall be limited to such land which is proved to be in theirpossession. The learned Judge categorically found thatthe temple has not established its case, since, underColumn No.22 of Ex.A-2, which deals with the decision ofthe Inam Commissioner is mentioned as “struck out” andsigned as 07-12-1969. With these directions, the learnedJudge allowed A.S.No.35 of 1979 in part and dismissedA.S.No.82 of 1978.

Arguments

Learned counsel for the plaintiff contended that thelearned Single Judge has erred in allowing somedefendants to continue as tenants even after a decreewas passed against them, without putting the leaseholdrights to public auction. He further contended that thelearned Single Judge ought not to have treated Ex.B.26as Ryotwari patta granted to Ayalani Ganganna. According to him, though the learned Single Judge heldthat the defendants have not established their title overitem 7 of the plaint schedule property, a decree in respectthereof was not passed against the plaintiff.

The learned counsel for the respondents hasdrawn our attention to the Judgment rendered by the Madras High Court in VADLAMANNATY BALATRIPURA SUNDARAMMA v. SECRETARY OF STATE

AND OTHERS[[1]], wherein a similar question has fallenfor consideration and the learned Judge while dealingwith the difference between grant to religious institutionand grant to a person, indicated the use of the word “devadayam”, which is not conclusive in favour of thetemple or mosque itself, and held as follows:

“………….. No doubt, if all the entries indicatethat the grant was for the mosque it would be avery clear case; but if not one of such indicia as inthat case is present, and there is a total absenceof the indication of ownership of the mosque, themere use of the word “devadayam” does notnecessarily show that the grant was to themosque, as the other cases cited by me show. InSIKKANDAR v. SECRETARY OF STATE ([1917] 5 M.L.W. 401 = 38 I.C. 200). SrinivasaAiyangar, J. says about “devadayam” that by itselfit is said to be prima facie strong proof. It is clearthat the word “devadayam” indicates a gift forreligious purposes, but does not necessarilyconnote anything more. The reason is in that theBritish Government when it dealt with imams in1859 appointed an Inam Commission forenquiring into the genuineness of the imams sothat they may be recognized and confirmed or notas the cases require. They dealt with bothclasses of cases, namely, the grants to templeand mosques and grants to servants on conditionof rendering services in temples and mosquestogether. From their point of view they were allconnected with Hindu or Mohammedan religionand their policy was not to impose quit-rent onthem, but to recognize and continue the inam solong as the conditions of the grants were beingfulfilled, that is, in the case of grants to mosquesor temples, as long as the institutions themselves lasted, and, in the case of grants on condition ofservices, as long as the services continued to beperformed. Title-deeds were accordingly issuedwith the clause.”

The learned counsel for the respondents has alsorelied upon a Judgment of our High Court in BOPPUDIPUNNIAH v. LAKSHMI NARASIMHASWAMY VARU, BY ITS TRUSTEE[[2]], wherein the learned Judge, whiledealing with the question whether the imams could bedescribed as grants to persons fulfilling a particularcapacity, i.e., to persons holding a particular office in thetemple, held as under:

“(6) The short question that fall for considerationin these writ petitions is whether the imams couldbe described as grants to persons fulfilling aparticular capacity, i.e., to persons holding aparticular office in the temple of SriVarahalakshminarasimhaswamy,

singarayakonda, Nellore district. The contentionurged on behalf of the petitioners that they weregrants made to named individuals subject to theobligation of rendering a particular service ismainly founded on the entries in columns 13, 16and 17 wherein the names of the originalgrantees and the names of persons enjoying theproperties at the time of the inam enquiry aregiven. These columns mention the names of theoriginal grantees as also those of the owners atthe relevant time.

(7) We do not think that these entries are in anyway conclusive. If we turn to the entries undercolumns 8, 10 and 21, it would clearly show thatthe imams were intended to serve an emolumentsannexed to an office. Column 8 shows that theimams were given for repeating Vedas in the pagoda in the festivals and that service was beingperformed. Under column 10, namely, “tenurehereditary unconditional for life only or for two ormore lives,” the entry made is “so long as serviceis performed”. Significantly enough, it does notsay that it was hereditary. When we come tocolumn 21, which is of a very decisive character,the recommendation of the Deputy collector wasthat, it should be confirmed so long as the servicewas performed. In consonance with thisrecommendation, the Inam Commissionerconfirmed the inams as recommended.

(8) Could it be postulated in the light of theseentries that the imams were personal to thegrantee. We feel that they were not granted tonamed individuals subject to the condition ofrendering service, but they were imams intendedto form part of the emoluments of the office ofparticular service. If really the grant was to anindividual with the added obligation, the grantwould have been confirmed to a named individualso long as the service was performed. On theother hand, the confirmation is couched inpassive language, namely, “so long as the serviceis performed”, which is a clear indication that itpertains to the office. In view of the recitals incolumns 8, 10 and 20, the mention of the namesof the grantees or of the enjoyers of the propertyunder columns 13, 16 and 17 cannot have muchsignificance. These names, in our opinion, werementioned as persons rendering service andenjoying the income from the lands and the grantscould have been made to individuals indicatedtherein not as personal grants but as incumbentsof a particular service.”

The other Judgment of this Court, relied upon bythe learned counsel for the respondents, in SRIVALLABHARAJASWAMI VARU (DIETY) OF

SWARNA, BY ITS MANAGING TRUSTEE v. DEEVIHANUMACHARYULU AND OTHERS[[3]], is to thefollowing effect:

“………………. On a consideration of thedocumentary evidence and the principles laiddown in the above decisions, the followingconclusions are deduced : Though the inam isdescribed as Devadayam, it is not conclusive ofthe fact that it was granted to the Diety but itmerely indicates that it is for a religious purpose. Unless the grant is made in favour of the Deity orthe Manager for the time being, as representingthe temple, it cannot be considered as a grant tothe Deity. The mere fact that column 22 of theInam Fair Register does not mention the name ofthe individual in whose favour the inam is to beconfirmed does not conclude the matter in view ofthe fact that column 21 of the Inam Fair Registercontains a clear recommendation that the inamshould be confirmed to an individual. Therecommendations contained in the Inam FairRegister have to be read along with the recitals inthe inam title deed which was issued as a resultof the inam proceedings. The description of theinam as Devadayam Pagoda inam in the titledeed is not indicative of the fact that it wasgranted to the Deity. It should be construed in thesame manner as the word “Devadayam” occurringin the Inam Fair Register, is construed, namelythat it is only for a religious purpose.”

We have perused the above cited Judgments. Thelearned counsel for the respondents contended that theinam proceedings were not confirmed and they were notapproved by the Commissioner and the same weredropped in respect of Ac.1-25 cents. We have perusedEx.A-2, which clearly indicates that the Inam Commissioner has not considered it appropriate tocontinue the Proceedings and he has concluded bystriking out further action in the matter.

The Judgment of the Madras High Court in BALATRIPURA SUNDARAMMA’s case ( cited 1 supra) alsomakes the position clear that when once the Inam FairRegister’s proceedings are dropped, it has to beconfirmed by the appropriate authority, namely, the InamCommissioner.

In our considered opinion, the decision of thelearned Judge does not warrant any interference now,inasmuch as the scope of L.P.A. is narrow and limited.

We have summoned Ex.A-2 along with otherrelated documents and given our anxious considerationto the same. Admittedly, Ex.A2 shows the extent of theland as Ac.1.28 cents and describes the same asdevadayam and Col. No. 10 states that “so long asservice is performed” and Col. No. 17 shows the name ofthe present owner as “Sri Veereswaraswamivari –worshipper Ayaluri Ganganna”. Col.No. 21 deals with theremarks of the Inam Commissioner, it is mentioned “to beconfirmed and is signed by one Srinivasa Mudali, Deputy Commissioner for the Inam Commissioner andCol. 22 deals with the decision of the InamCommissioner and it is mentioned as “struck out”. At thisjuncture, it is important to notice Ex.B26 which is a small printed book dated 05.02.1874. It shows that the pattawas issued by the District Collector, Godavari District inrespect of certain lands to Ayaluri Ganganna, archaka ofSri Veereswaraswamyvaru, Tadepalli Village. From thepoint of view of these documents, coupled with thesettled legal position that the words ‘devadayam’ doesnot necessarily mean an endowment to the diety and it isconnected with a religious purpose, it has to beconstrued that Ayaluri Ganganna is the present ownerand not the diety. Therefore, the learned Judge hasrightly held that the defendants have established title inrespect of items 6, 9, part of item 10, items 11 and 12. Placing reliance on Ex.A3, survey and settlementregister, the learned Judge held that the defendants havefailed to prove their adverse possession in respect ofitems 1, 2, 3, 4, 5, 8 and part of item 10 and therefore, it isto be construed that the plaintiff has title over the same.

The learned counsel for the plaintiff seriouslyopposes the judgment insofar as it contains the directionthat the defendants were directed to continue as lesseesof the land in question. We see no merit in the contentionof the learned counsel, inasmuch as the defendants willhave to be continued as lessees on payment of the rentfixed by the Assistant Commissioner of Endowments andif they fail to pay the same, it is needless to mention thatthe plaintiff will always be at liberty to recover thepossession of the land from them.

The learned counsel on either side after perusingthe exhibits summoned by us, have satisfied and agreedto our view point.

From the above discussion, we are of the opinionthat the judgment under LPA does not warrant anyinterference. Accordingly, both the Appeals aredismissed and the Judgment rendered by the learnedsingle Judge is confirmed. No costs.

---------------------------Ghulam Mohammed, J

mrk29[th] December 2009

---------------------------------Nooty Ramamohana Rao, J

[1]AIR 1928 MADRAS 282[2]1963 An WR 2[3]1968 An WR 242