SA/992/2005 of Tholeti Mallikarjuna Rao (died) Vs Sri Malleswara Swamy Temple, Kondiparru, on 29 December 2011

JUDGMENT:

This second appeal is filed against the judgment and decreedated 12.02.2004 passed by the Court of Additional Senior Civil Judge(FTC), Gudivada, in A.S.No.46 of 1999 confirming the judgment anddecree dated 30.09.1999 in O.S.No.74 of 1991 passed by the Court ofPrincipal Junior Civil Judge, Gudivada.

The appellants filed the suit for the relief of perpetual injunctionin respect of Acs.8.80 cents of land in Survey No.33 of KondiparruVillage of Pamarru Mandal of Krishna District. The appellants claim tobe the decedents of one Pujari Mallanna, who is said to have beengranted the land way back in the year 1866, as archaka in firstrespondent - Sri Malleswaraswamy Vari Temple of that village. It waspleaded that Mallanna was exercising absolute rights of ownershipover the land even while functioning as pujari. After the death ofMallanna, his son-Sambaiah is said to have succeeded to the land inthe year 1902 and after Sambaiah his sons are said to havesucceeded to him in the year 1932.

There were some disputes as to the rights of the ancestors ofthe appellants vis-à-vis the said land. They filed O.S.No.235 of 1934 inthe Court of District Munsiff, Gudivada, against the President, HinduReligious Endowment, Board of Commissioners and another for therelief of declaration to the effect that the plaint schedule property wasnot endowed to the first respondent temple. The suit was dismissed bythe trial Court. Thereupon, the plaintiffs therein filed A.S.No.208 of1936 before the Court of District Judge, Krishna at Machilipatnam,which was later transferred to the Sub Court, Machilipatnam, andrenumbered as A.S.No.10 of 1937 and the same was allowed. ThePresident, Hindu Religious Endowment Board, Madras filed S.A.No.714 of 1938 in the Madras High Court. The second appealwas partly allowed modifying the decree passed by the lowerappellate Court directing that the plaintiffs i.e., ancestors of theappellants herein shall be entitled to enjoy the land, subject to theirrendering customary service in the first respondent temple and that thelevy of contribution on the land is untenable.

The appellants herein plead that though they have beenrendering services to the temple, the respondents are interfering withtheir possession over the land. It is stated that a Trust Board wasconstituted from time to time and the Members of the Board are notpermitting the appellants to enjoy the rights over the land.

On behalf of the respondents, a written statement was filed. Itwas stated that though some of the appellants were functioning asarchakas in the initial stage, all of them have ceased to be so and theyare either employed in different organisation or working as archakas inthe Temples in different villages. Other grounds, on the basis of theprovisions of A.P. Charitable and Hindu Religious Institutions andEndowments Act, 1987 were also pleaded.

The trial Court dismissed the suit through order dated30.09.2009. A.S.No.46 of 1999 filed by the appellants was alsodismissed. Hence, this second appeal.

Sri Tholeti Krishna Mohana Rao, fourth appellant herein arguedthe matter by appearing in person. He stated that he has beenauthorised by other appellants to advance arguments, in the SecondAppeal.

On behalf of the respondents, Sri C.Raghu, learned counselappeared and he argued the matter at length.

The suit was filed for the relief of injunction simplicitor. Initially,the trial Court framed one issue for its consideration, namely, whether the plaintiffs are entitled to permanent injunction. Thereafter, the following additional issues were framed:

(1) Whether the plaint schedule land is marked by theplaintiffs?plaintiffs?

(2) Whether the condition relates obligation in therelinquishment deed executed by China Seshaiah isnot valid and not binding on the plaintiffs?relinquishment deed executed by China Seshaiah isnot valid and not binding on the plaintiffs?(3)What is the effect of the decision in S.A.No.714/38of High Court of Madras?of High Court of Madras?

(4) Whether the plaintiffs are in possession of the plaintschedule land in their own right by the date of the suit;schedule land in their own right by the date of the suit;

(5) Whether the Court has jurisdiction over the dispute.

On behalf of the appellants, P.Ws.1 to 13 were examined andExs.A.1 to A.65 were filed. On behalf of the respondents, D.Ws.1 to 3were examined and Exs.B.1 to B.5 were filed. The documents markedas Exs.X.1 to X.3 were also taken on record.

The suit was decreed and in appeal, the lower appellate Courtframed the following points:

(1) Whether the judgment and decree of the lower Courtis sustainable according to law?is sustainable according to law?

(2) Whether there are any valid grounds in the appeal?

The appeal was dismissed.

The litigation in respect of the land started way back in the year1934, with the institution of O.S.No.235 of 1934 by the ancestors of theappellants. That suit was filed for the comprehensive relief ofdeclaration of rights. The suit was dismissed and the appeal preferredagainst it was allowed. In S.A.No.714 of 1938, the Madras High Courtmodified the decree passed by the lower appellate Court to thefollowing effect:

“In the result, therefore, I allow the appeal and modifythe decree passed by the lower appellant court. There will bea declaration that the plaintiffs are entitled to the suit landsubject to their obligation, to render the customary service inthe Malleswara Swamy Vari Temple of Kondiparru and thecontribution levied by the 1[st] defendant on the basis of that theland is an Endowment of the suit temple illegal and there will be a decree that the 1[st] defendant do repay Rs.65/- to theplaintiffs. The order of the lower appellate court regardingcosts will stand and this court each party will bear his owncosts.”

From this, it becomes clear that the appellants or their ancestorsare entitled to exercise the rights vis-à-vis the land, subject to theirdischarge of obligations to render the customary services in the firstrespondent temple. The respondents categorically stated that theappellants are not rendering services and in that view of the matterthey are not entitled to exercise rights over the land.

The record discloses that by the time the suit was filed, theappellants are not in possession of the land. In that view of the matter,very institution of the suit for the relief of injunction simplicitor becomesuntenable. If the appellants are so advised, they have to instituteproceedings for establishing their rights over the land and to seekrecovery of possession. Two options are open. The first is to instituteproceedings before the Endowments Tribunal, which is conferred withthe jurisdiction to decide the nature and character of properties held byHindu religious institutions. The second is to file an independent suitfor declaration of title and for consequential reliefs. It is for theappellants to choose the forum.

As the things stand now, this Court does not find any basis, orsubstantial question of law warranting interference with the concurrentfindings recorded by the trial Court and the lower appellate Court. Thismuch, however, can be said that in the event of any proceedings beinginstituted for declaration of title, none of the observations made inthese proceedings shall be treated as final, as regards the rights of theparties, except the question of possession.

The Second Appeal is accordingly dismissed. There shall beno order as to costs.

Date: 29.12.2011

va

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L. NARASIMHA REDDY, J