*THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY +APPEAL SUIT No.715 OF 1993 %Dated 14-08-2014 # Sri J.R. Mritunjaya Singh, Represented by his Power of Attorney Holder, Sri Gangaraju Ramaraju, Gurachari Street, Vizianagaram. ..... Appellant. AND $ The State of Andhra Pradesh, Represented by Collector, Vizianagaram and three others. .… Respondents. ! Counsel for Appellant/s : Sri Venkateswara Rao Gudapati. Sri V.L.N.G.K. Murthy. ^ Counsel for Respondent/s. : Government Pleader for Appeals. < GIST : > HEAD NOTE : ? Cases referred : 1. AIR 1981 SC 798 2. 2014 (1) ALD 41 (DB) 3. AIR 1957 SC 133 (1) 4. AIR 1995 SC 167 5. AIR 1974 SC 1123 6. AIR 1977 SC 1192 7. AIR 1972 SC 1716 8. AIR 1970 SC 2025 9. LAWS (APH)-1975-9-S 10. AIR 1963 SC 510 11. (1956) 1 MLJ 309 12. AIR 1966 Madras 99 13. 2006 (2) ALD 301 This Court made the following : HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY APPEAL SUIT No. 715 OF 1993 JUDGMENT: The unsuccessful plaintiff in Original Suit No.1 of 1987, on the file of Additional District Judge, Vizianagaram (For short, ‘the trial Court’), preferred this Appeal against the decree and judgment dated 08.02.1993. 2. For convenience of reference, the ranks given to the parties in O.S. No.1 of 1987 will be adopted throughout this judgment. 3. The plaintiff, J.R. Mritunjaya Singh, represented by his Power of Attorney Holder Sri K. Suryarao, filed suit before the trial Court under Section 78 of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 (Act 17 of 1966) to set-aside the order dated 02.01.1986, passed in O.A. No.350 of 1973 by the Deputy Commissioner, Endowments Department, Kakinada, where under the temple known as Sri Ammagari Venkateswaraswami Vari Temple, Kotha Agraharam, Vizianagaram was declared as public temple. 4. During pendency of Appeal, Sri Kavalipati Suryarao died and Sri Gangaraju Ramaraju is brought on record as Power of Attorney Holder of Sri Gangaraju Ramaraju, as per Orders of this Court in C.M.P. No.2247 of 1998 dated 02.03.1998. 5. Aggrieved by the order dated 02.01.1986 passed in O.A. No.350 of 1973 by the Deputy Commissioner, Endowments, Kakinada, plaintiff filed the suit before the trial Court, which ended in dismissal confirming the order dated 02.01.1986, passed in O.A. No.350 of 1973 by the Deputy Commissioner, Endowments, Kakinada. 6. Late Sri Jayapal Kumarika Amma Saheba, Rajamatha, natural mother of Vizianagaram Zamindar, Sri Vijayarama Gajapathi Raju, with an intention to construct Vaishnava temple with her self-acquisitions, installed idol of Lord Sri Venkateswara Swamy Varu to perform daily poojas in her name, executed trust- cum-settlement deed dated 26.01.1938 in favour of her grand-son, Dr. Sir Pusapati Vijayananda Gajapathi Raju, Maharaja Kumar of Vizianagaram, appointed him as hereditary trustee of the temple while providing cash for construction of the temple. The property settled in favour of the trust was only ‘streedhana’ property of Late Sri Jayapal Kumarika Amma Saheba, Rajamatha; she created trust for the benefit of the members of Vizianagaram Royal House exclusively, executing the trust deed dated 26.01.1938 stipulating a condition that poojas to the deity should be performed in her gothra nama and the trustee should be hereditary. 7. In view of the settlement deed, keeping in mind, the intention of the donor, her daughter-in-law Smt. Lalita Kumari Devi Varu, Maharani Saheba of Vizianagaram, applied and got site of Ac.1.25 cents in T.S. Nos.139, 140 and 143 of Santhapeta Southward, Kotha Agraharam, Vizianagaram, granted by the Court of Wards, Madras in C.M.P. No.315, dated 23.03.1938, as by that time, Vizianagaram Estate was under the management of Court of Wards, Madras. Thus, the temple known as Sri Ammagari Venkateswara Swamy Vari Temple was constructed with the self acquisitions of donor and it is in private site. The 1st hereditary trustee of the temple Dr. Sir Vijayananda Gajapathi Raju filed an application in O.A. No.24 of 1956 before the Deputy Commissioner, Endowments, Mausilipatnam, under Section 57-A of the Act, seeking declaration that the temple is a private temple. After conducting necessary inquiry, the Deputy Commissioner, Endowments, Mausilipatnam, vide his order in O.A. No.24 of 1956 dated 24.07.1956 declared the temple as a private temple. After death of 1st hereditary trustee, Dr. Sir Vijayananda Gajapathi Raju, his eldest son, the plaintiff herein, became hereditary trustee of the temple in pursuance of the trust deed and managing the temple. 8. While managing the property, the plaintiff at the instance of Inspector of Endowments, Vizianagaram, and due to threat and coercion submitted a petition dated 30.07.1968 to the Deputy Commissioner, Endowments, Kakinada to declare him as hereditary trustee of the temple. on an erroneous impression. The Deputy Commissioner, Endowments, Kakinada vide his letter in R.C. No.7625/68 Judl.A-2, dated 15.08.1968 expressed a doubt about maintainability of the said application, in view of the earlier order of Deputy Commissioner, Endowments, Mausilipatnam that the temple is a private temple, posted the matter for enquiry on 30.08.1968. The plaintiff, after obtaining the legal opinion, realized the mistake of filing an application under Section 77 of the Act, filed another application seeking permission to withdraw the earlier application. Accordingly, the Deputy Commissioner, Endowments, Kakinada, vide order No.64 of 1969, dated 18.07.1969, permitted the plaintiff to withdraw his application and consequently the application of the plaintiff was dismissed as withdrawn. On the instructions of the Assistant Commissioner, Endowments, Vizianagaram vide R.C. No.2513/68 A-2, dated 29.05.1968, the hereditary trustee filed an application under Section 38 of the Act to register the temple; the Department also made a demand for payment of contribution for faslies 1374 - 1376 i.e., for the periods from 1967 - 69, to a tune of Rs.3,521-70 Ps., Due to pressure exerted on him by the Department, the then agent of the trustee paid amount ‘under protest’ and obtained receipt No.16530, dated 04.03.1969. 9. The 2nd defendant took-up inquiry into the matter and passed the order in O.A. No.350 of 1973, on 02.01.1986, holding the temple known as Sri Ammagari Venkateswara Swamy Vari Temple as public temple on erroneous view, recording evidence of 10 witnesses of Vizianagaram on 16.05.1983 at Vizianagaram, but their evidence is not based on any documentary proof. Thus, the order in O.A. No.350 of 1973 is not based on any material to establish conversion of private temple into public temple. The witnesses examined on behalf of the Endowments Department are only interested witnesses and due to ignorance or otherwise, they deposed against the plaintiff. On the other hand, the witnesses examined by the plaintiff testified in his favour, more particularly, about performance of poojas with the permission of hereditary trustee etc., The excess land of the temple was surrendered to the Government treating it as a private temple, since public temples are exempted from land ceiling law. There is no gopuram to construe the temple as public temple. However, due to mistake, the directions given by the Endowments Department were complied, which acts do not constitute estoppel. 10. While the matter stood thus, on the written instructions of the Assistant Commissioner, Endowments, Anakapalli, vide his letter in Dis. No.A1/3408/69, dated 11.06.1969, Manager of the temple, without knowledge and consent of the hereditary trustee, opened a Hundi in the temple and as such agent of the trustee paid contribution to the Department for 3 years, but this cannot operate as estoppel against the status of the temple. If the work of the Manager is considered as one by the trustee himself, the Manager was properly punished for his misdeeds and unauthorized acts, by issuing proceedings in Rc. No.1/69 dated 26.07.1969, which was marked as Ex.R-17 and, later, the hundi was removed, which was installed unauthorizedly, and the Manager was also removed from service, but on sympathetic grounds without taking any further action. 11. The plaintiff further contended that there is no gopuram and it is only a Pooja Mandir of Royal house. Further, one hand of the idol intended to be installed in the temple known as Sri Ammagari Venkateswara Swamy Varu, Kotha Agraharam, Vizianagaram was broken during transit. Therefore, it could not be installed in the temple, sentimentally. At the request of late Dr. Ramayyanger, the then royal family physician, late Sri Lalitha Kumari Devi Varu, Dowager, Maharani Saheba of Vizianagaram, got the idol replaced on the northern tank bund of Ayyakoneru, which is the personal property of Dr. Sir Pusapati Vijayananda Gajapathi Raj, opposite to the house of Dr. Ramayyanger, and provided a small protection to it, but no pooja or archana are being done to the mutilated idol and, by reason of sentiment, idol is not opened to the public. The door of the Mandir is being opened for switching on the electric light on Ekadasi days by the cook of the Kotha Agraharam temple for performing Tirumanjani Seva. There is a misnomer to call the small protection provided for the mutilated idol under the small protection which is locally known as Sri Veedhi Perumalla Varu on the north bund of Ayyakoneru, Vizianagaram to be a temple, much less a public temple. It is ancillary to the temple at Kotha Agraharam. As the matter stood thus, the Assistant Commissioner, Endowments, Anakapalli vide his letter in Rc.No.A-1/714/77, dated 28.01.1977 formed a trust board and appointed one Boddu Gurudas, as trustee of the temple and when the Mandir was not handed over by the hereditary trustee, the so called trustee of the temple, illegally appointed by the Assistant Commissioner, Endowments, Anakapalli, filed an application in M.P. No.919 of 1978 under Section 93 of the Endowments Act before the Additional District Munsif, Vizianagaram. Thereafter, the hereditary trustee of the Mandir filed Writ Petition No.5003 of 1978, which was allowed by this Court on 20.01.1984. Thus, the temple in question is a private temple in view of the order dated 24.07.1956, passed in O.A. No.24 of 1956 by the Deputy Commissioner, Endowments, Mausilipatnam, which attained finality. At best the inquiry ought to have been confined only to the question whether the private temple as on 24.07.1956, has been converted into a public temple, but the Deputy Commissioner, Endowments, Kakinada, without any satisfactory evidence held that the temple in question is a public temple. Moreover, the Deputy Commissioner, Kakinada observed that if it is for private purpose, it would have been constructed in the palace itself. This observation is germane to the inquiry. Further, the Deputy Commissioner, Kakinada did not consider Ex.R-15, inspection notes of the Assistant Commissioner, Anakapalli, vide his letter in Dis. No.A1/3498/69, dated 11.06.1969 containing instructions to open a Hundi in the temple and got poojas done to the deity on ticket system and observed that the trustee’s agent himself opened a Hundi with the trustees knowledge. As a matter of fact, those acts were done only under the threat or coercion of Assistant Commissioner, Anakapalli, without the knowledge of hereditary trustee. Finally, the Deputy Commissioner, Kakinada observed that sending an application, by the hereditary trustee, for registration of the temple under Section 38 of the Endowments Act is another circumstance to conclude that the temple is public temple, but overlooked withdrawal of the application by the hereditary trustee and dismissal of the same as withdrawn. Therefore, the inquiry should be confined only to find out whether the private temple is converted into public temple subsequent to 24.07.1956, in view of the order passed by the Deputy Commissioner, Mausilipatnam in O.A. No.24 of 1956. Thus, the Deputy Commissioner, Kakinada acted beyond the scope of inquiry and passed an erroneous order; thereby prayed to set-aside the order passed by the Deputy Commissioner, Kakinada in O.A. No.350 of 1973, dated 02.01.1986. 12. The 3rd defendant filed written statement denying material allegations of the plaint, while admitting that the temple in question has been declared as private temple under Section 67(a) of the Act 19 of 1951 by the Deputy Commissioner, Mausilipatnam, vide order in O.A. No.24 of 1956, dated 24.07.1956. But, due to changed circumstances and also due to change in treatment of temple by the plaintiff and his agent, an inquiry was made, wherein it was found that an application under Section 38 of the Act 17 of 1966 was filed by the hereditary trustee and also filed a petition under Section 77(1)(c) for declaring him as hereditary trustee, paid contribution to the Endowments Department, allowed accounts to be audited by the local fund officers and obtained budget sanctions, introduced ticket system for performing poojas and allowed the public for performing poojas and that the temple was also published under Section 6(C)(ii) of the Act 17 of 1966. Therefore, suo moto enquiry was started under Section 77(1)(c) by the Deputy Commissioner, Kakinada in O.A. No.350 of 1973 and after issuing notice to the hereditary trustee, the plaintiff filed Writ Petition No.6516 of 1973, challenging the notice issued by the Deputy Commissioner and sought for a direction restraining the Deputy Commissioner from proceeding with the inquiry pursuant to the notice, but this Court by its order in W.P. No.6516 of 1973 dated 28.08.1975 directed that the question to be inquired by the Deputy Commissioner in the matter is, “Whether the temple which must be deemed to be a private temple on 24.07.1956, has since been converted into public temple and whether it was then a public temple”. In pursuance of the order of this Court, the Deputy Commissioner, Endowments, Kakinada, continued inquiry in O.A. No.350 of 1973, after affording opportunity to hereditary trustee, Endowments Department adduced evidence. Basing on the evidence and acts of the agent and Manager of the temple, Deputy Commissioner, Endowments, Kakinada, passed the order declaring that the temple in question as “public temple”. 13. It is further contended that there is a Dwajam, Mukha Mandapam, Kalyana Mandapam, Archakas and Cooks to prepare prasadam. For performance of various ceremonies settling Ac.128.00 cents in the name of deity etc., shows that the dedication is in favour of the deity i.e., for public purpose and existence of Dwajam etc., is a positive proof that it is a public temple. Though, the temple was declared as private temple, by passage of time, it becomes a public temple and the temple was registered under Section 38 of the Act 17 of 1966, on the application of hereditary trustee and he also filed an application under Section 77(1)(c) declaring that he is the hereditary trustee. Thus, the temple is now possessed with all the requirements of a public temple like Mulavirat, Utsava Vigraham, Dwajam, Mandapam, Kratu Stambam, Prakar Gopuram, Nagara Bell etc., The archakas performing daily Doopa Deepa Naivedyam and Aradhana are posted with vast land as endowed by its founder. The accounts of the temple were also audited by the auditors. The hereditary trustee also used to pay the contribution to the Endowments Department. These are the two additional factors to treat the temple as public temple. Public are also allowed to visit the temple, perform poojas, prasadam is being distributed, installation of Hundi for collection of contribution from the public and collecting donations etc., also indicate that the temple is converted into public temple and does not continue as a private temple. 14. The trustee entrusted the management to its agent, who used to sign on all the papers sent to the Department and getting approved the acts of the trustee. Hundies were opened in the temple for public contribution and ticket system was also introduced for the benefit of the public. If really, it is a private temple, the question of collection of donations from the public and performance of poojas on tickets purchased by the public would not arise. If really, it is purely a private temple, the question of hereditary trustee without order of the Assistant Commissioner in managing the temple, opening Hundi and filing an application under Section 38 of the Act, would not arise. Therefore, all these acts indicate that the temple was treated as a public temple. 15. As seen from the contents of the trust deed, the intention of the founder is to construct a temple, but not a temple for the family, but she expressed her cherished desire for construction of Sri Venkateswara Swamy Vari temple and endowed the property for its management by appointing a hereditary trustee. The document, with regard to installation of the idol of Sri Venkateswara Swamy is silent that it is installed only for the benefit of the royal family. Therefore, dedication under the trust deed is only for public not for the private individuals. The temple was registered and a publication was made under Section 6(c) clause (ii) of the Act as public temple and no objection was raised by the hereditary trustee for such publication and the allegation that the excess land was surrendered to the Government proves that the temple is a public temple. The land reforms proceedings are purely between the State and the temple and the Endowments Department is not a party to the proceedings. Therefore, the Land Reforms Proceedings are not binding. Thus, the order under challenge cannot be set-aside, since the temple satisfies the requirements to declare the temple under question as a public temple. It is further contended that the order passed by the Deputy Commissioner, Kakinada is totally in accordance with the law and there is no error, therefore, prayed to dismiss the Suit. 16. Defendants 1 and 2 filed a memo adopting the written statement filed by 3rd defendant. 17. 4th defendant filed written statement, while adopting the written statement filed by 3rd defendant, contended that filing of an application under Section 38 of the Act by mistake and withdrawing the same, payment of contribution for faslies 1374 – 1376 was due to pressure of the Endowments Department and no documentary evidence was produced to prove that the temple in question is a private temple. The plaintiff no where in the plaint stated that the pooja Mandir is only meant for their royal family and there is no restriction to general public for performing any poojas or marriages in the temple. The trustee who filed an application under Section 38 of the Act cannot go back and say that it was made by mistake, which operates as estoppel against the conduct of the trustee. The contention of the plaintiff that the Manager of the temple without his knowledge of hereditary trustee opened Hundi in the temple and thereafter agent of the trustee paid contribution to the Department; subsequently, the Manager was punished vide proceedings of the hereditary trustee dated 26.07.1969, do not support the case of the plaintiff and the same is false. He specifically stated that existence of Dwajastambham, Mandapam, Prakaram, Gopuram, Hundi, immovable and movable property, allowing general public to perform poojas in their names and marriages, conducting Harikathalu on the festive occasions and appointment of trustees are conclusive proof that the temple in question is a public temple. Finally, It is contended that the order passed by the Deputy Commissioner, Endowments, Kakinada is totally in accordance with the law and there is no error and prayed to dismiss the Suit. 18. On the basis of the above pleadings, the trial Court framed the following issues: 1. Whether the private temple was converted into a public temple? 2. Whether the order of the Deputy Commissioner is liable to be set-aside? 3. Whether the plaintiff is entitled to the declaration? 4. To what relief the plaintiff is entitled? 19. During course of trial, on behalf of the plaintiff, P.W.1 was examined and Exs.A-1 to A-68 were marked. On behalf of the defendants, DWs.1 to 6 were examined and Exs.B-1 to B-4 were marked. 20. Upon hearing argument of both the counsel, considering oral and documentary evidence available on record, the trial Court dismissed the suit, confirming the order of Deputy Commissioner, Kakinada in O.A. No.350 of 1973, dated 02.01.1986, holding that the temple in question is a public temple and as such the plaintiff is not entitled for any declaration. 21. Aggrieved by the impugned decree and judgment of the trial Court, the unsuccessful plaintiff preferred this Appeal on various grounds mainly contending that the trial Court went back to the facts prior to order in Writ Petition No.6516 of 1973, dated 28.08.1975 and so also the order of Deputy Commissioner, dated 24.07.1956 declared the temple as private temple and erroneously concluded that the temple in question is a public temple. The trial Court went wrong in concluding that the settlement deed dated 26.01.1938 is the dedication for the idol and declared the temple as public temple. The trial Court also did not believe the trust deed though the Deputy Commissioner, Mausilipatnam, in the earliest order dated 24.07.1956 believed the genuineness of the trust deed and declared the temple as private temple. 22. The trial Court also failed to consider effect of the order in L.C.C. No.1426 of 1975, but the temple did not claim any exemption from surrendering excess land and claimed only a standard holding for the temple as a private temple. Therefore, the finding of the trial Court on this ground is prima-facie erroneous. 23. Failure to visit the temple by Dr. Sir Pusapati Vijayananda Gajapathi Raju, would not change the nature of the temple from private to public and it is not a ground to conclude that the private temple is converted into public temple. Failure to examine the original hereditary trustee by itself is not a ground for the reason that PW.1 is the person who is posted with the facts. Therefore, on the ground of non examination of the hereditary trustee, dismissal of the suit is erroneous. The trial Court mainly concentrated on the installation of Hundi, ticket system etc., they were done only on account of written directions given by the Assistant Commissioner, Anakapalli but not otherwise. As such it is not a ground to conclude that the temple is a public temple. 24. The applications filed under Sections 38 and 77 of the Act, 1966 are only due to coercion, threat by the Assistant Commissioner, Anakapalli, without knowing the consequences of such application. However, it was withdrawn by the trustee himself and the Deputy Commissioner permitted to withdraw it by dismissing the application. Hence, such withdrawal had no consequences regarding nature of the temple, the trial Court’s conclusion basing on the applications filed under Sections 38 and 77 is ex-facie erroneous. The trial Court also failed to consider the validity of Ex.A-29, in permitting any person to enter into the temple and perform poojas with permission does not amount to changing the nature of temple from private to public. Therefore, the orders of the trial Court and Deputy Commissioner are erroneous. 25. Though a specific plea of Res-judicata was raised in the pleadings the trial Court did not frame any issue and did not advert to the specific contentions of the plaintiff regarding bar of the proceedings by res-judicata. Thus, committed an error in dismissing this suit. 26. During course of argument, learned counsel for the plaintiff – appellant reiterated the grounds urged in the grounds of appeal, pointing out the evidentiary admissions and documents, placed reliance on the judgments of Apex Court and this Court reported in Radhakanta Deb and another Vs. The Commissioner of Hindu Religious endowments, Orissa and Bommu Raghurami Reddy (died) by L.Rs and others Vs. Special Deputy Collector (Land Acquisition), Telugu Ganga Project, Cuddapah and another respectively. 27. Whereas, learned counsel for the respondents – defendants argued totally in respect of the findings of the trial Court and pointed out certain admissions in evidence in the cross-examination of witnesses, examined on behalf of the plaintiff, relied on the judgments of Apex Court in Deoki Nandan Vs. Murlidhar and others and prayed to dismiss the Appeal confirming the decree and judgment of the trial Court and order passed by the Deputy Commissioner, Endowments Department, Kakinada. 28. Considering rival contentions, perusing the impugned decree and judgment of the trial Court, including oral and documentary evidence on record, the points that arise for consideration in this Appeal are as follows: 1) Whether the temple which was declared as private temple as per the orders of