Appeals against Tribunal awards holding respondents as encroachers on Temple property; Court upheld eviction order finding no adverse possession or title.
Civil Miscellaneous Appeals dismissed; impugned awards confirming eviction order confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE B.N. RAO NALLA
CIVIL MISCELLANEOUS APPEAL Nos.313, 316, 317, 318, 319, 321, 322, 323, 324, 325 AND 371 OF 2011
COMMON JUDGMENT:
These Civil Miscellaneous Appeals are filed assailing the awards in O.A. Nos.1377 of 2010 (Old No.53 of 2009), 1378 of 2010 (Old No.54 of 2009), 1384 of 2010 (Old No.60 of 2009), 1387 of 2010 (Old No.63 of 2009), 1381 of 2010 (Old No.57 of 2009), 1383 of 2010 (Old No.59 of 2009), 1385 of 2010 (Old No.61 of 2009), 1380 of 2010 (Old No.56 of 2009), 1379 of 2010 (Old No.55 of 2009), 1386 of 2010 (Old No.62 of 2009) and 1382 of 2010 (Old No.58 of 2009) respectively dated
07-02-2011 passed by the A.P. Endowments Tribunal, Hyderabad, whereby and whereunder, the respective appellants herein were held to be “encroachers” under Section 83 of the A.P. Charitable and Hindu Religious Institutions & Endowments Act, 1987 (for short “the Act”).
2. The respective appellants in all these appeals are the respondents; and respondent Nos.1 and 2 are petitioner Nos.1 and 2 i.e., the Assistant Commissioner of Endowments, Guntur and Sri Ganga Bramaramba Malleswara Swamy Temple, Mangalagiri Village and Mandal, Guntur District, respectively, in the O.As. before the Tribunal.
3. For the sake of convenience, the parties are hereinafter referred to as they arrayed before the Tribunal. However, petitioner No.2 – Sri Ganga Bramaramba Malleswara Swamy Temple will be hereinafter referred to as “Temple.”
4. Since the subject matter (i.e. with regard to vacant sites of different extents out of Ac.0-17 cents in Survey Nos.234 and 236 of Managalagiri Town and Mandal, Guntur District) in all these appeals
is one and the same, they are being disposed of by this common judgment.
5. The case of the petitioners before the Tribunal is that the respective vacant sites of different extents, which are under the occupation of the respondents, out of Ac.0-17 cents in Survey Nos.234 and 236 of Mangalagiri Town and Mandal, Guntur District (for short, hereinafter referred to as “schedule property”) belong to the Temple and that the respondents have been continuing in the schedule property unauthorisedly without any valid lease or orders of the competent authority and without paying any amount towards damages for use and occupation of the same and thus they are
squatting over the schedule property and did not vacate the same in spite of issuance of legal notice, as such, they are “encroachers” within the meaning of Section 83 of the Act. If the schedule property is leased out as per the Rules, it will fetch huge amounts. Therefore, the petitioners sought for a direction from the Tribunal for eviction of the respective respondents from the vacant sites of different extents of the schedule property which are under their unauthorised occupation and handover vacant possession of the same to the Temple.
6. Though all the respondents filed their respective counters in the O.As., all of them are on similar lines. They denied the averments made in the respective applications against them including the allegation that they encroached the schedule property belonging to the Temple. Their case is that prior to them, their ancestors were in possession of the schedule property and they have been living in the schedule property under their occupation for more than 60 years and they constructed pucca houses in the vacant sites of different extents of the schedule property and the same have been assessed to tax and they have been paying municipal taxes, electricity bills, all government taxes and obtained household ration cards, voter identity cards etc. It is also their case that though the petitioners got issued the notice dated 21-11-2008 to all of them demanding to vacate the schedule property, for which they got issued the reply notice dated 02-12-2008 demanding to show the title of the Temple to the property, they failed to furnish any material and simply filed the impugned applications without any basis.
7. Based on the rival pleadings, the following points were framed for consideration by the Tribunal below in all the O.As.:
8. To substantiate their case, petitioners got examined the Executive Officer of the Temple as PW.1 in each O.A. and also got marked Exs.P-1 to P-5 on their behalf. On behalf of the respondents, each of them got examined as RW.1 in their respective O.As. and got marked copies of the property tax receipt, electricity consumption receipt, household card and water bill.
9. The Tribunal, after an elaborate consideration of the entire material available on record and relying on Exs.P-1 to P-5, allowed all the O.As. vide impugned awards holding that the petitioners established their right, title and interest over the schedule property and the respective respondents are encroachers over the same within the meaning of Section 83 of the Act and directed them to vacate and handover the schedule property within one month thereof by written intimation to the petitioners, failing which petitioner No.1 was directed to evict the respective respondents with the police aid and deliver possession of the same to the Temple.
10. Aggrieved by the impugned awards, the respective respondents preferred these appeals, inter alia, contending that they are owners of the vacant sites of the schedule property under their occupation and are in possession of the same for the last 60 years and they perfected their title even by adverse possession. It is also their case that they constructed pucca residential houses in the schedule property and the municipality also developed the colony by laying cement roads and assessed the house properties, and they have been paying property tax, water cess, electricity consumption charges,
as such, the finding of the Tribunal that the respondents failed to discharge their burden of proving their title over the schedule property is erroneous.
11. Heard the learned counsel on either side and perused the material available on record.
12. Now the contention of the learned counsel for the respondents (appellants) is that though the respective respondents proved their ownership over the schedule property by marking the relevant documents, the Tribunal erroneously found them as encroachers within the meaning of Section 83 of the Act by relying on Exs.P-1 to P-5, which in any way do not disclose the ownership of the Temple. Their further contention is that as the respondents are in possession of the schedule property from the generations of their ancestors for the last 60 years without any interference, they perfected their title over the same by adverse possession also, but the Tribunal failed to appreciate the same. The Tribunal failed to see that the schedule property belongs to the respective respondents and they constructed pucca residential houses over the same and the Municipality also assessed the same to tax and developed the colony by laying cement roads and they have been paying the property tax, water cess and electricity consumption charges. It is also their contention that except Ex.P-1 property register, which also does not show as to who endowed the property to the Temple,
there is no other documentary evidence to show the title of the Temple to the schedule property. Therefore, the finding of the Tribunal that Ex.P-1 property register of the Temple prima facie proves that the schedule property belongs to the Temple is erroneous and without any basis, as such, the same is liable to be set aside.
13. Per contra, the learned Government Pleader for Endowments and the learned counsel for the Temple supporting the impugned judgment in all respects contended that the Tribunal rightly relying on Exs.P-1 to P-5, which show that the schedule property belongs to the Temple, found the respective respondents as encroachers squatting over the schedule property within the meaning of Section 83 of the Act as they are not paying any rents or damages for use and occupation of the same.
14. Now the point that arises for consideration is whether there are any grounds for allowing these appeals? POINT:
15. No doubt, the respective respondents are in possession of the vacant sites of different extents, which are in their occupation, of the schedule property and got constructed pucca residential houses therein and the same was assessed to tax by the Municipality, laid cement roads in the colony, and they have obtained water and electricity connections to their houses and paying all the taxes including the property tax and the bills to the respective authorities. But all these things do not establish their title to the schedule property except showing their possession. All the respondents failed to produce any material in support of their case that those vacant sites belong to them and not to the Temple. On the other hand, petitioners produced Ex.P-1 property register of the Temple prepared in 1976 and approved under Section 38 of the 1966 Act and the same clearly shows that among the properties of about Acs.13-5½ cents, the schedule property of Ac.0-17 cents besides Ac.0-10 cents in Survey Nos.234-236 are part of the Temple’s property.
16. However, the respondents disputed the genuineness of Ex.P-1 property register contending that the register prior to Ex.P-1, which was prepared basing on the oral statement of the Priest, is not available and there is no evidence to show as to who endowed the property to the Temple and that the procedure seeking registration of the schedule property under the Act was not followed.
17. According to the contents of page Nos.10 and 11 of Ex.P-1 property register, it was prepared on 14-09-1976 based on the statement of the Priest as the register
earlier to 1976 was not available.
Thus, as per Ex.P-1, the schedule property stands in the name of the Temple as early as in 1976 itself. On the other hand, all the respondents failed to produce any material to show that the schedule property belongs to their ancestors and they are in possession of the same for the last 60 years without any interference. Further even their possession on the schedule property was found to be only from 1985 that too as encroachers as found hereinbelow. In view of the same and since
sub-section (3) of Section 43 of the Act says that no application for registration shall be necessary in the case of any institution or endowment which was duly registered and entered in the book of endowments before the commencement of this Act, the question of not following the procedure under the Act seeking registration of the schedule property does not arise. Further, as per the decision of the Apex Court in Anant
Prasad Lakshminiwas Ganeriwal v. State of A.P. and others[1] , according to Section 11 of Hyderabad Endowment Regulations (1940), the presumption is that the entries made in the book of endowments are true and correct unless held to be otherwise by the civil Court. Therefore, the entries made in Ex.P-1 property register of the Temple which was prepared in 1976 itslef are true and correct, as such, the genuineness of Ex.P-1 cannot be doubted. In view of the above, the question of there being no evidence as to who endowed the property to the Temple is not fatal to the case of the petitioners. Therefore, it has got to be held that the schedule property belongs to the Temple and not the respondents.
18. Coming to adverse possession, the case of the respondents is that prior to them their ancestors were in possession of the schedule property for the last 60 years and thereafter they have been in possession of the same by constructing pucca residential houses therein and the Municipality also assessed the same to tax. To show their possession, most of the respondents marked photostat copies of the property tax receipt, electricity consumption receipt and household ration card and some of the respondents marked a copy of the water cess receipt also.
19. In view of the above, it has to be seen whether the respondents perfected their title over the schedule property by adverse possession. However, as per the provisions of the Act, there is no provision to claim adverse possession over the endowment property. Hence, the respondents cannot claim adverse possession over the schedule property.
20. Further, the receipts of payment of property tax, water cess or electricity consumption and the household ration card marked on behalf of the respondents are of the year 2010 only and therefore the same show their possession from 2010 onwards only and not prior to that. No document is filed to show that they are in possession from a long period and that the respondents, who were examined as RW.1 in their respective cases, admitted in the cross-examination that they have not filed any documentary evidence to show that their ancestors were in possession of the schedule property prior to them in any manner.
Even from the cross-examination of PW.1, what is elicited is that the respective respondents are in possession of the schedule property from 1985 only and not prior to that and there is no corroborative evidence also to that effect. Hence, the case of the respondents that for the last 60 years, their ancestors and after them they are in possession of the schedule property is false. Since the possession of the respondents over the schedule property is found to be only from 1985 onwards that too as encroachers and not as adverse to the knowledge of its true owner,
the plea of adverse possession is not available to them and in view of the same also they cannot claim adverse possession. Apart from that it is also absent in the pleadings of the respondents as to from what date their possession over the schedule property is adverse to its true owner. Further, the possession of the respondents is without any right, title or interest, as such, their possession is nothing but illegal as encroachers. In view of the same also, the plea of adverse possession fails.
21. Apart from the above, on one occasion the respondents claiming the schedule property as its owners and on the other as adverse possession. When the respondents claim ownership, they have to prove their title by producing relevant documents, however, since they are unable establish their ownership over the schedule property by producing the oral and documentary evidence as found hereinabove, they are claiming adverse possession, which falsifies their primary case that they are owners of the schedule property since when they claim adverse possession, it is inherently implied from the plea of adverse possession that they are not owners of the schedule property and someone else was owner of the same as held by the Apex Court in
P. Periasami v. P. Periathamb i[2] , wherein it is held that “whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.”
22. All the respondents also failed to produce any title document to show that the schedule property belongs to them or filed any lease document to say that they are in possession of the same as tenants.
All these circumstances clearly establish that the vacant sites of different extents of the schedule property belong to the Temple and all the respondents are in illegal possession of the schedule property by encroachment.
23. For the aforesaid reasons, this Court is of the view that the vacant sites of different extents of the schedule property, which is under the occupation of the respondents by constructing pucca residential houses belongs to the Temple and they (respondents) are squatting over the same as encroachers without any right or title within the meaning of Section 83 of the Act, as such, they are liable to be evicted as rightly held by the Tribunal. Thus, there are no grounds to allow these appeals. The point is accordingly answered.
24. However, considering the possession of the respondents over the schedule property, they may approach the Temple authorities for regularization or leasing out the same to the respective respondents which the Temple may consider on appropriate terms and conditions,
if they are so advised.
25. With the above observations, all the Civil Miscellaneous Appeals are dismissed confirming the impugned awards dated
07-02-2011 passed by the A.P. Endowments Tribunal, Hyderabad, in all respects. The miscellaneous applications, if any, pending are closed. No order as to costs.
B.N. RAO NALLA, J
Date:09-11-2012 PV
[1] AIR 1963 SC 853
[2] (1995) 6 SCC 523
3 issues framed by the court
Whether vacant sites under Temple claim and occupied by respondents for 60 years belong to the Temple or are held by adverse possession?
Whether the Tribunal correctly held the respondents as encroachers under Section 83 of the A.P. Endowments Act, 1987?
Whether payment of taxes and construction of houses establishes title against a registered Temple property?
Colour shows how this judgement treated each authority
Anant Prasad Lakshminiwas Ganeriwal v. State of A.P. and othersRelied on¶30
Anant Prasad Lakshminiwas Ganeriwal v. State of A.P. and others
P. Periasami v. P. PeriathambiRelied on¶38
P. Periasami v. P. Periathambi
2 provisions across 1 enactments
Assistant Commissioner of Endowments, Guntur
Sri Ganga Bramaramba Malleswara Swamy Temple, Mangalagiri
Respondent/Appellants (Occupants)
B.N. RAO NALLA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
