Andhra Pradesh High Court - Amravati
Sri Potnuri Surya Prakasha Rao vs Sri Kasivisweswara Annapurna Dharma ... on 8 December, 2023
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
C.M.A.Nos. 224, 225, 226, 227, 228, 229, 230, 231, 232,
233, 234, 235, 236, 237 and 241 of 2022
COMMON JUDGMENT:
The batch of Civil Miscellaneous Appeals have been filed aggrieved by the Order dated 09.05.2022 passed in various O.As by the A.P. Endowments Tribunal, Amaravati at Pedakakani (in short "the tribunal'), whereby the learned Tribunal has directed the appellant herein to vacate and handover vacant possession of the petition schedule property within one month to the respondent/ Institution and also directed the appellant to pay damages for use and occupation of the schedule property from the date of petition till delivery of property and further directed the Station House Officer, Kothapeta Police Station, Vijayawada Urban to provide necessary police aid in implementation of the said orders to the respondents on requisition, in the event of failure of the appellant to comply with the orders and costs.
2. Since the facts and issue involved in all the Civil Miscellaneous Appeals, I find it expedient to decide these matters by a Common Judgment.
3. For the sake of convenience, C.M.A.No.241 of 2022 is taken into consideration as a leading case. The appellant herein 2 Dr.KMR, J CMA.No.224 of 2022 and batch is the respondent and respondent herein is the petitioner before the tribunal.
4. The claim of the respondent/ petitioner before the tribunal is that the respondent herein is the absolute owner of the petition schedule property. The appellant herein have encroached the petition schedule property highhandedly and illegally without permission of the Endowments Department and made illegal constructions therein and that the appellant is an encroacher. Therefore the respondent herein issued legal notice, but the appellant instead of vacating the petition schedule property, issued a reply notice. Therefore O.A has been filed for eviction of the petition schedule property and handover the same to the respondent herein.
5. The appellant/ respondent has filed counter therein and contended that the schedule property and its door number mentioned in the O.A is incorrect and the respondent herein has no locus-standi to file the petition for eviction. The petition schedule property was never in possession and enjoyment of the respondent herein at any point of time. It is for the respondent herein alone to prove that it has absolute rights and title. Since it was never leased out to the appellant at all, the question of 3 Dr.KMR, J CMA.No.224 of 2022 and batch relationship between them as landlord and tenant does not arise. Therefore there is no need to pay any amount or damages for use and occupation and requested to dismiss the O.A.
6. During the course of enquiry, on behalf of respondent/ petitioner examined PW-1 and marked Ex.A1 to A6 and on behalf of appellant/petitioner examined none examined and no documents were marked.
7. Learned tribunal has framed the following point for determination viz., "1. Whether the respondent is an encroacher of the property of the petitioner/institution/ temple?
2. To what result?
8. After hearing on both the sides, the learned tribunal directed the respondent therein i.e appellant herein to vacate and handover vacant possession of the petition schedule property within one month to the respondent herein and also to pay damages for use and occupation of the schedule property from the date of petition till delivery of the property and also granted police aid to the respondent herein for compliance of the impugned order of the learned tribunal. Aggrieved by the same, the present batch of C.M.As came to be filed.
4 Dr.KMR, J CMA.No.224 of 2022 and batch
9. Heard Mr. D.V.Sasidhar, learned counsel and Mr.M.Sri Atchyut, learned counsel, representing Mr. E.V.V.S.Ravi Kumar, learned counsel for the appellants and Mrs. Padmavathi Padnavis, learned Standing Counsel for the respondents.
10. During hearing learned counsel for the appellants would contend that the learned tribunal without appreciating the counter and material on record has simply directed the appellants herein to vacate and handover the possession of the petition schedule property to the respondent herein, ignoring the well settled principles of law. It is contended that learned tribunal held that there is a reference about the document No. 152 of 1899, but it was never either pleaded in the original petition or in the chief affidavit of PW-1 as if the institution become entitled to the petition schedule property by virtue of that 1899 document. Therefore the respondent herein has no right, title or ownership flows from the document to the Choultry, hence there is no landlord and tenant relationship. Since the ownership of the Choultry is not established, the O.A itself is not maintainable.
11. It is further contended that the O.A was filed against the appellant herein represented by one Mr. Vanaku Seshu as 5 Dr.KMR, J CMA.No.224 of 2022 and batch President in the year 2009, but the said President name is not Vanuku Seshu, but Panuku Seshagiri Rao and pending the O.A, the President died on 24.03.2020, as such he could not file the chief affidavit and the present President did not have knowledge of the said O.A, as the O.A was perused by the previous President, as such he also not filed any chief affidavit and not filed any evidence to substantiate its case.
12. It is further contended by the learned counsel for the appellants that the documents relied by the respondent Choultry i.e Town Survey Register dated 22.12.2009, Field Plan dated 20.01.2010 are all created and concocted for the purpose of filing the O.A, because the very document i.e Section 43 Register was prepared on 17.02.2009 and basing on the same, the said documents got to be obtained by the Choultry and relying the said documents, the learned tribunal allowed the O.A. In fact, a plain reading of the document No.152 of 1899 would show that there is no recital or mention is made about the property bearing D.No.11-25-4, Ward No. 09A, Kothapeta, Vijayawada-1 and only the reference is made about the 800 Sq.yds situated at Governorpet-2, as such the property was never bequeathed to the respondent/ Choultry. In view of the same, the very O.A itself is not maintainable.
6 Dr.KMR, J CMA.No.224 of 2022 and batch
13. Learned counsel for the appellant further submits that learned tribunal failed to consider the fact that when the notice was issued initially for eviction, but there was no documentary evidence in favour of the Choultry to substantiate their ownership. The appellant has got substantial evidence to establish that the property the property is a private property belonging to the appellant called "Sri Sardhar Marupilla Chitti Congress Kendra Karyalayam". Further the document would show that the appellant has been in possession from 1900. In support of his contention, the appellant obtained electricity connection in 1900 and registration of one of the rooms in the appellant office is registered as "Sri Sardar Marupilla Chitti Grandalayam" vide S.No.52 of 1961 dated 08.08.1961 at the District Registrar Office, Krishna District as per the Registration of Societies Act.
14. The learned tribunal observed that the appellants issued reply notice dated 21.10.2005, wherein it was stated that the property belonged to Puchavari family and the same was orally gifted around 70 years ago and that the property belongs to the Choultry is absorb. In fact, Puchavari family was the owner of vast extents of land, but the property orally gifted to the appellants herein was never endowed/ bequeathed, because 7 Dr.KMR, J CMA.No.224 of 2022 and batch the Puchavari family has also participated in the freedom fight and out of love and affection towards the country has gifted the land orally and none have claimed the property including the legal heirs of Puchavari family. As such gift given out of love and affection to the Congress party, cannot be claimed by the respondent. But these facts were not considered by the learned tribunal and allowed O.A. Therefore the impugned order passed by the learned tribunal is liable to be set aside.
15. Whereas, learned Standing Counsel for the respondents drawn the attention of this Court with regard to proof of title of the respondent and reiterated the facts mentioned in the impugned order at Page 12, wherein it was specifically said that "there is no dispute about either ward number of NTS number or the boundaries. To establish that all these schedule properties of this batch are part and parcel of same NTS number which stands in the name of the petitioner institution alone, the PW.1 has filed the extract from 'town survey register and got it marked as Ex.A1. The said Ex.A1 is so conspicuous about the fact that the entire extent of 16650 sq.feet having NTS No.484 is a private land and that too, it was registered in the name of Putcha Vari Choultry. Therefore it is very clear that as per Ex.A1 clearly established the title of the 8 Dr.KMR, J CMA.No.224 of 2022 and batch respondent and also Ex.A2, which is a sketch obtained from Municipal Authorities. But the appellant has not taken steps either to cross examine the witnesses or denying or dispute the genuineness of document before the court below.
16. It is further contended by the learned Standing Counsel for the respondent that the appellant has been in possession and enjoyment of the said property since 70 years, it is their burden to prove said fact before the learned tribunal to establish their long possession, but no evidence has been produced before learned tribunal to substantiate their plea at least. The appellant has not produced any tax receipts or municipal plan approved or electricity bills in support of their contention before the learned tribunal. Therefore learned tribunal holding that the appellants failed to establish his plea of possession of the petition schedule property since more than 70 years by filing any documents, except pleaded oral gift, hence the question of both the pleas of oral gift and also adverse possession could not be proved in any way by the appellants. Further it was held that "the respondent institution is their family institution. However, unless it is proved by the appellants, that it was gifted to them, it shall be presumed, that the said property is still with the Putcha Vari family alone. There is none to claim the 9 Dr.KMR, J CMA.No.224 of 2022 and batch said property, except the institution, which belongs to Putcha Vari Family alone. It is not the gift from third parties, to prove specifically. Therefore it is sufficient to prove the title of the institution i.e respondent by placing Ex.A1 to A6. Therefore the batch C.M.As are liable to be dismissed, as learned tribunal rightly decreed the O.A on merits and there is no illegality or impropriety in its order.
17. Both the counsel have painstakingly taken this Court through records of the case and presented their respective points of view very ably.
18. During hearing, learned counsel for the appellant in C.M.A.No. 241 of 2022 placed on record the order of this Court in W.P.No.12258 of 2021, dated 27.07.2021 and contended that the said writ petition is squarely applies to the facts of this case and drawn the attention of this Court with regard to Section 43(10) of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (in short "the Act'). This provision stipulates that the Assistant Commissioner has to conduct an enquiry before accepting the amendments or inclusions sought by the trustees to the list of properties or institution registered under Section 43 of the Act.
10 Dr.KMR, J CMA.No.224 of 2022 and batch
19. As could be seen from the material on record it is very clear that the property belongs to the respondent herein as per documents relied before learned tribunal as Ex.A1 to A6. As per document of 1899 would show that Putcha Sitha Rama Rao executed the document in the name of institution, but again represented by himself alone. Therefore learned tribunal held that the respondent institution is their family institution. As per RW-1, it is conceded that originally the petition schedule property belongs to Putcha Vari Family alone and as he failed to prove the specific plea and contention of oral gift, automatically the property shall vest with the respondent institution alone. Therefore learned tribunal came to a conclusion that the respondent has established the right and title of the institution. The court below further held that the appellants have not proved their so called long possession of around 70 years besides the oral gift pleaded by him and therefore, the respondent institution entitled for the relief of eviction as prayed for.
20. In the instant case itself the appellants have not shown prima facie title or any positive evidence, except showing the photographs and denying the entries made in the register as it is a spurious document is brought into existence for the 11 Dr.KMR, J CMA.No.224 of 2022 and batch purpose of this case. It is very clear and admitted fact that the appellants have not produced scrap of paper or examined any of the witnesses on their behalf before learned tribunal to substantiate their claim. If there is any cogent evidence is with them, they ought to have produced the same before learned tribunal by examining proper witnesses, which they failed to do so. To cover up these latches, now the appellants came forward with a contention that the present of institution has no knowledge about the O.A and the name of the president is differs from original name and that they have not filed any affidavit in chief and material papers to substantiate their claim. The said plea taken by the appellants is unbelievable and it is nothing but technical aspect, which cannot be considered.
21. Since the appellants have not produced any documentary proof to substantiate their claim before learned tribunal, though ample opportunity has been given and also none of the witnesses were examined on their behalf. In view of the said scenario, this Court finds no merit in the case of the appellants as the appellants failed to establish their case in proper manner and that they are not entitled to any relief as prayed for. Therefore, the impugned order passed by the 12 Dr.KMR, J CMA.No.224 of 2022 and batch learned tribunal does not warrant any interference by this Court.
22. Having regard to the facts and circumstances of the case and considering the submissions of both the counsel, the batch C.M.As are hereby dismissed by a common order. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
________________________________ Dr.JUSTICE K. MANMADHA RAO Date 08.12.2023.
KK 13 Dr.KMR, J CMA.No.224 of 2022 and batch THE HON'BLE DR.JUSTICE K. MANMADHA RAO C.M.A.Nos. 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237 and 241 of 2022 Date: 08.12.2023.
KK