WP/27062/2010 of Subhash Kapoor Vs The Andhra Pradesh Endowments Tribunal on 30 December 2010

O r d e r:

Assailing the order dated 24.09.2010, passed by A.P.Endowments Tribunal, Hyderabad, the 1[st] respondent herein, in Memoin CFR. 259/2010 in O.A. No. 80 of 2002, transposing the AssistantCommissioner, Endowments, Hyderabad, respondent No.3 in the O.A.,as petitioner No.2 in the O.A., the petitioners filed the present writpetition.

Originally, respondent No.3 herein filed O.A. No. 80 of 2002under Section 87(1) of the A.P. Charitable and Hindu ReligiousInstitutions and Endowments Act, 1987 (hereinafter referred to as ‘theEndowments Act’) on the file of the Deputy Commissioner,Endowments, to declare that the property in question bearing Nos.14-11-1048 to 14-11-1054 and 14-11-1066 to 1084 (Old Nos. 2195 to 2222), situated at Birbanbagh,Shahinyath Ganj, Hyderabad, belongs to Sri Mahadev Temple,Birbanbagh, Hyderabad (hereinafter referred to as ‘the Temple’). While so, the petitioners stating that the property in question is theirprivate property and that it does not belong to the Temple, and thatrespondent No.3, having filed the O.A., did not lead any evidence, theyfiled application in I.A. No. 82 of 2004, praying to dismiss the O.A.However, the Deputy Commissioner, Endowments Department,Hyderabad, vide orders dated 11.11.2005, dismissed the saidapplication, holding that notwithstanding respondent No.3 did notadduce any evidence, burden is on the petitioners to prove that theproperty in question is not an endowed one, by adducing necessary oral and documentary evidence. Questioning the said order, thepetitioners filed revision in R.P. No. 27 of 2005 on the file of RegionalJoint Commissioner, Endowments Department, Hyderabad, who byorder dated 06.07.2006 rejected the same and directed the DeputyCommissioner, Endowments Department, Hyderabad, to proceed withthe trial of the O.A. on merits by giving due opportunity to thepetitioners and respondent No.3. Questioning the said order thepetitioners filed writ petition in W.P. No. 16626 of 2006, and this Courtby order dated 09.08.2006, dismissed the same, holding that theDeputy Commissioner, Endowments Department, Hyderabad, shalldetermine the claim of respondent No.3, based on the evidence let inby him, and he ought not to have called upon the petitioners to leadevidence to disprove a claim that is not established by respondentNo.3. While the matters stood thus, for exercising the powers of theDeputy Commissioner and other endowment authorities, theEndowments Tribunal, came to be constituted, and the O.A. filed byrespondent No.3 was transferred to the Endowments Tribunal. Duringthe course of enquiry of the O.A., respondent No.2 herein, namely theAssistant Commissioner, Endowments Department, Hyderabad, filed aMemo praying to transpose him as petitioner No.2. The petitionersfiled their objections stating that the Memo is not maintainable in law. The Endowments Tribunal, vide orders dated 24.09.2010, allowed theMemo and transposed respondent No.2 herein, namely the AssistantCommissioner, Endowments Department, Hyderabad, as petitionerNo.2. Questioning the said order of the Endowments Tribunal, thepetitioners filed the present O.A.

Heard the learned counsel for the petitioners and the learnedGovernment Pleader for Endowments Department.

As respondent No. 3 herein, having filed the O.A., is notcontesting the same, and having regard to the fact that this Court byorder dated 09.08.2006 passed in W.P. No. 16626 of 2006 had heldthat the Deputy Commissioner, Endowments Department, Hyderabad(now Endowments Tribunal) shall determine the claim of respondentNo.3, based on the evidence to be let in by him, it is the contention ofthe petitioners that the Endowments Tribunal, committed a grave errorin passing the impugned order, allowing the Memo filed by respondentNo.2 herein, namely the Assistant Commissioner, Hyderabad, for histransposition as petitioner No.2 in the O.A. I am unable to agree withthis contention of the petitioners. Admittedly, respondent No.3 hereinfiled O.A. to declare that the property in question belongs to theTemple. In the O.A., respondent No.3 herein arrayed the AssistantCommissioner, Endowments Department, Hyderabad, as respondentNo.3. For the reasons best known to respondent No.3 herein, he is notcontesting the O.A., and no doubt, if he does not contest the O.A., itcan be dismissed for default, but the fact remains, in the instant case,respondent No. herein, namely the Assistant Commissioner,Endowments Department, Hyderabad, who is arrayed as respondentNo.3 in the O.A., wants to protect the interest of the Temple, and asrespondent No.3 herein was not prosecuting the O.A. in which event,the interest of the Temple would be jeopardized, he wanted to betransposed as petitioner No.2 in the O.A. As respondent No.3, havingfiled the O.A., abandoned its prosecution, the Endowments Tribunal,considering the request of respondent No.2 herein, namely theAssistant Commissioner, and having regard to the provisions of Order XXIII, Rule 1-A and Order I Rule 10 of the Code of CivilProcedure, 1908, which provides that in the event the plaintiff who files the suit and abandons, a defendant, if claims to have substantialinterest in the property, can be transposed as plaintiff, passed theimpugned order, allowing the Memo filed by respondent No.2 hereinand transposed him as petitioner No.2 in the O.A., and no interferenceis called for therewith, particularly when in the O.A., respondent No.3though claimed that Temple is the owner, yet did not array it as party-respondent, and instead merely arrayed the Trustee as a party-respondent.

Though the petitioner, placing reliance on the compromisedecree dated 27.02.1989 in O.S. No. 1227 of 1981 on the fie of VAdditional Judge, City Civil Court, Hyderabad; judgment and decreedated 17.04.2009 in O.S. No. 1820 of 1999, which is re-numbered asO.S.

No. 890 of 2007 on the file of Junior Civil Judge, Hyderabad, in whichthe Endowments Department, is a party-defendant, contends that asthe property in question was declared as private property, and the saidfinding having attained finality, nothing would subsist for considerationin the O.A. by the Tribunal, the fact remains, the said suits are suits forpermanent injunction and not declaration of title. Though theEndowments Department is shown as party-defendant in the saidsuits, the Temple, which claims to be the owner of the property inquestion is not arrayed as party-defendant. Be that as it may, thejudgments and decree, relied on by the petitioners being merely withrespect to perpetual injunction and not declaration of title, and it notbeing their case that they perfected their title to the property by way ofadverse possession, and having regard to the rival claims put up bythe parties, the question as to who is the owner of the property inquestion, is a question that has to be decided by the Endowments

Conclusion

Tribunal in the O.A. Therefore, based on the judgments and decree,relied upon by the petitioners, it cannot be conclusively said that theyare owners of the property in question, and if according to thepetitioners, the property in question is their private property, it is forthem to disprove the claim of the Assistant Commissioner,Endowments Department, Hyderabad, who is transposed as petitionerNo.2 that it is Temple property.

For the foregoing reasons, I find no reason whatsoever tointerfere with the impugned order passed by the EndowmentsTribunal, transposing respondent No.2 as petitioner No.2 in the O.A.

The writ petition is devoid of merit, and the same is accordinglydismissed. No costs.

Dated: 30[th] December, 2010IBL

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N.V. RAMANA, J.