Andhra HC (Pre-Telangana)
Anisetty Krishna Rao And Another vs Sri Radhakrishna Vasuku Kshetram, ... on 6 October, 1998
Equivalent citations: 1999(1)ALD349, 1999(1)ALT269, 1999 A I H C 1196, (1999) 1 HINDULR 407, (1999) 1 ANDH LT 269, (1999) 1 CURCC 510, (1998) 2 LS 721, (1999) 1 ANDHLD 349
JUDGMENT
1. This appeal is directed against the Judgment and decree dated 31-12-1990 passed in AS No.10 of 1982 on the file of the Additional Sub-Court, Narasaraopet, confirming the Judgment and decree dated 14-12-1981 passed in OS No. 100 of 1978 on the file of the II Additional District Mtmsif Magistrate Court, Narasaraopet, Guntur District.
2. The appellants herein are the defendants and the respondent herein is the plaintiff in the said suit OS No.100 of 1978. The parties are being referred to as they are arrayed in the suit for the sake of convenience.
3. Sri Radha Krishna Vasitki Kshetram, Burnpet, Narasaraopet, represented by its founder Sri Kathula Rajasimhudu, filed the suit for the relief of permanent injunction restraining the defendants and their men from interfering with the peaceful possession and enjoyment of the suit property i.e., Ac.l.40 cents situtate in T.S. No.6 in Block 1 of Ward No. 1 of Narasaraopet Municipality. The case of the plaintiff is that the suit property originally belonged to one Tadepalli Venkata Narayana of Narasaraopet who was a philanthropist. In the middle of 1952 the founder of the plaintiffs temple and some other religious minded persons intended to bring into existence a temple in Burnpet locality and therefore approached Tadepalli Venkata Narayana to gift some of his land for construction of the temple. He gave his consent to gift the suit property which contained a step well in it after satisfying himself of the bona fides of the founder and delivered possession of the site in August 1952 promising that he wilt execute a proper deed later along with other gifts of sites which he made to some other persons. Since then the founder was in pursuit of funds to raise the construction of the temple. In the year 1954 the donor-Tadepalli Venkata Narayana died and he executed a will appointing his nephew Sri N. Narayana as the executor of his estate. The said executor N. Narayana all through had been promising to execute a deed with respect to the site of Ac. 1.40 cents donated by late T. V. Narayana for the temple. The founder of the temple also raised fencing all round the suit site and he commenced construction of the temple in 1956 and completed it by the middle of 1958 with the public funds raised by him. The diety was also installed. The founder of the temple also raised construction in some portions of the suit site making provision for the residence of the temple poojari. He also erected the main entrance gate and water storage in front of the temple which have been described in the plan appended to the plaint. The founder of the temple also paid land revenue to the suit site and house tax for the house raised therein. The plaintiff-temple is a public temple open to all persons. The plaintiff has been asserting his title to the suit site to the knowledge of the defendants and others since 1953 and thus the plaintiff has perfected his title by adverse possession. When the defendants tried to interfere with the possession of the plaintiff the suit has been filed for the relief of permanent injunction as stated supra.
4. The defendants resisting the claim of the plaintiff filed a common written statement. It is their case that the original owner T.V. Narayana had gifted only an extent of 21 cents from out of the suit property to the plaintiff-temple while the remaining site was purchased by Telaga Mahazana Sangam of which the first defendant is the President and the second defendant is the Executive Committee Member under registered sale-deed (original of Ex.B2) and by the second defendant under Ex.B3 in the year 1972 from DW3 and his mother who are adopted son and widow of late T. V, Narayana and since then the said Sangam and the second defendant have been in possession of their respective portions of the suit site. It is also their case that the temple was constructed on behalf of the said Sangam by PW1 who is also its Member and that the main entrance gate as well as the water storage were constructed on behalf of the Sangam and that the hut shown in the plaint plan also belongs to Sangam which is holding its meetings in the said hut and that Poojari never resided in that hut and that the defendants never interfered with the peaceful possession of the plaintiff in respect of 21 cents of the suit site. They have also taken up a plea that the person who has filed the suit has no locus standi to represent the temple.
5. The trial Court settled the following issues for trial:
(i) Whether the plaintiff has got any right of possession of the suit property on the date of suit?
(ii) Whether the suit against defendants as framed is maintainable?
(iii) Whether there is any cause of action for the suit?
(iv) Whether the suit is properly framed?
(v) Whether the plaintiff is entitled to the injunction?
6. During the course of trial, PWs 1 to 7 were examined and Exs.A1 to A35 were marked on behalf of the plaintiff. DWs.
1 to 5 were examined and Exs.B1 to B10 were marked on behalf of the defendants. On a consideration of the oral and documentary evidence on record, the trial Court held all the issues in favour of the plaintiff-temple and against the defendants. On appeal by the defendants in AS No. 10 of 1982, the lower appellate Court on reappraisal of the entire evidence on record confirmed the findings of the trial Court and consequently dismissed the appeal confirming the Judgment and decree passed by the trial Court. Aggrieved of it, the defendants have come up with this second appeal.
7. Heard the learned Counsel on either side. The learned Counsel for the appeltants-defendants submits that both the Courts below failed to appreciate the evidence on. record and came to a wrong conclusion that there was dedication of the suit land to the temple by the original donor- T.V. Narayana, that the oral gift set up by the plaintiff does not pass on a valid title, that there was no temple in existence in 1952 when the alleged oral gift was effected, that the Courts below also ignored the impact of Ex.B8 a registered sale-deed dated 1-4-1972 executed in favour of PW1 by DW3 with respect to 9 cents of land which forms part of the suit land and also Exs.B2 and B3 which were executed in favour of Telaga Mahazana Sangam and the second defendant, and that there are justifiable grounds for interference by this Court in this second appeal. The learned Counsel for the respondent-plaintiff, on the other hand, submits that the oral gift is valid as there is dedicalion of the suit land in favour of the temple to be constructed on the site, that both the Courts below gave concurrent finding of fact, that the plaintiff has been in possession and enjoyment of the suit land since 1952 and as such the plaintiff is entitled for permanent injunction and that no substantial questions of law are involved in this appeal and as such the appeal is liable to be dismissed.
8. The only substantial question of law involved in this case is whether a valid endowment can be created under a oral gift in favour of a temple. It is not in dispute that the suit land belonged to T. V. Narayana, The plaintiffs case is that the entire extent of Ac.l .40 cents was orally gifted to the temple to be constructed and the possession had been delivered to PW1 in 1952. The defendants also admit with regard to the oral gift in favour of the plaintiff, but they contend that only an extent of 21 cents was donated by T. V. Narayana and that the rest of the suit site was purchased by the Sangam and the second defendant under Exs.B2 and B3 from the legal heir of T. V, Narayana and others. The defendants themselves admit with regard to the donation of part of the suit site in favour of the plaintiff by the original owner T. V. Narayana. The learned Counsel for the appellants submits that provisions in the Transfer of Property Act require all gifts of immovable property have to be compulsorily registered and that the provisions under Section 123 are mandatory and imperative and no gift of immovable property could be made except by means of an instrument signed by or on behalf of the donor and attested by at least two witnesses, and there can be no oral dedication even to a temple and such a oral gift is void and it does not divest the donor or his legal heirs of their proprietary right to clothe the donee with any title to the same. The learned Counsel further submits that in the instant case the original owner has not executed any registered gift deed in favour of the temple or PW1 and that his legal heir DW3 who is his adopted son and his widow. While exercising their proprietary rights on the suit land, they alienated the same in favour of Sangam and D2 under registered sale-deeds Exs.B2 and B3. The learned Counsel for the respondent, on the other hand, submits that a Hindu can create an endowment with respect to immovable property by donating the same orally and such oral gift has been in vogue from the beginning and the said practice has been recognised by the Courts of Law. The learned Counsel for the respondent also relied on the decision in Harira Prasad v. C. V. GO Saheb, AIR 1930 Patna 610, and a decision of our High Court in Kisen Prashadv. Sukdev Prashad and others, 1970 A.P. High Court's Noles Page 263. It is held in the decision of the Patna High Court (AIR 1930 Patna 610) thus:
"An oral endowment according to Hindu Law is not necessarily invalid in the absence of a registered document. A Hindu therefore can create an oral dedication of immovable property in favotirof a idol. But in order to constitute a valid gift and dedication there must be a real sankalp and samapu, that is, ihe endowed property must be completely given away and the owner must completely divest himself of its ownership. In order to constitute a valid gift, there must be something to indicate the acceptance on the part of the donee. The fact and nature of acceptance depend upon the circumstances of each case."
In 1974 A.P. High Court's Notes Page 263, Justice Cliinnappa Reddy (as His Lordship as he then was) also took the same view stating that the execution of the document is not necessarily to constitute a valid dedication of property by a Hindu for a religious or charitable purpose. His Lordship further held that mere execution of a document is not enough to constitute a valid endowment unless it is proved that the donor bonafide intended to divest himself of its ownership in the property dedicated. I respectfully agree with these observations made in the above said decisions. In the instant case also there is ample evidence on record to show that ihe original owner T. V. Narayana had dedicated the entire suit premises to the plaintiff-temple in the year 1952 itself when the temple was proposed to be constructed by the founder (PW1) and other religious minded people who approached him for such dedication. PWs. 1 to 3 have deposed on this aspect. It is in their evidence that they approached the original owner T, V. Narayana for gift of the suit land for the temple to be constructed he readily accepted and delivered possession of the suit land to PW1 and since then PW1 has been in possession and enjoyment of the same. The testimony of PWs 1 to 3 clearly go to show that late T, V, Narayana endowed the entire suit land to the plaintiff and the gift was accepted by PW1 on behalf of the temple. The trial Court as well as the appellate Court have considered the other circumstances in this case which conclusively established that there was divestment of ownership as well as possession of suit property by late T. V. Narayana and as such there is complete and valid gift even in the absence of regular gift deed. Both the Courts below also have rightly held that in view of valid gift by the original owner, there were no subsisting proprietary rights over the same for being alienated by his legal heirs in favour of either Sangam or D2. Therefore, I hold that a Hindu can create an endowment with respect to his land by dedicating the same to a diety or a temple to be constructed subsequently and such gift need not be evidenced by any registered document.
9. The other findings in this case are findings of fact and it is well settled that the High Court should not exercise jurisdiction under Section 100 CPC to interfere with the concurrent findings of fact of both the Courts below. There are innumerable decisions of the Supreme Court which have held that the concurrent finding of fact of the trial Court and the first appellate Court should not be interfered with by the High Court in exercise of its jurisdiction under Section 100 CPC vide Smt. Kamala Devi Budha v. Hem Prabha Ganguli, ; Smt. Jahejo Devi v. Moharum Ali, ; P. Velayudan v. Kurunghat Imichivaia Moidu etc., 1990 Supp. SCC 9; Ramaswamy Kalingaryar v. Mathayan Padayachi, and Kashi Bai and another v. Parvathi Bai and others. ; Ramanuja Naidu v. Kannaiah Naidu and others, . Again in Navaneethammal v. Arjim Chetty, AIR 1996 SC 3521. Their Lordships of the Supreme Court reiterated thus:
"This Court, time without number, pointed out that interference with the concurrent findings of the Courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower Courts."
10. It is clear from this catena of precedents of the Supreme Court that where the first appellate Court had considered the evidence on record by applying its mind independently and considering the reasoning of the trial Court and thereafter concurred with the findings of the trial Court the same does not deserve to be interfered with. Interference would be justified if the finding reached by the lower appellate Court is vitiated by the non-consideration of the relevant evidence or the approach to decide the case is quite erroneous and the High Court can also interfere when there is perversity in finding of fact and the findings reached are not based on -any evidence or they are the results of surmises and conjectures.
11. A perusal of the Judgment of the trial Court and also the first appellate Court in this case amply discloses that the concurrent findings reached by both the Courts below are based on the evidence on record and they are not the result of surmises or conjectures. There is also no reason to hold that the findings of fact of both the Courts below are perverse or based on no evidence.
12. On a consideration of the oral and documentary evidence on record, both the Courts below gave a finding that the plaintiff-temple has been in exclusive possession and enjoyment of the suit property right from 1952. Both the Courts below also considered that the document Ex.BS which stands in the name of PW1 with respect of 9 cents of land in the suit property and held that document was created by the defendants themselves in support of their case. Both the Courts below held that the plaintiff has been in exclusive possession of the suit land and granted permanent injunction. In Ramaswamy Kalingaryar v. Mathayau Padayachi, . Their Lordships of the Supreme Court held that concurrent finding in favour of certain party as to his being in sole possession of the suit land is a finding of fact and the High Court cannot interfere with such a finding while exercising jurisdiction under Section 100 CPC. On a consideration of the facts and circumstances of this case, I am satisfied that there are no justifiable reasons to interfere with the impugned Judgment and the appeal is liable to be dismissed.
13. In the result, the appeal is dismissed with costs. The Judgments and decrees of both the Courts below are confirmed.