THE HON’BLE SRI JUSTICE K.C.BHANU APPEAL SUIT NO.294 OF 1993 DATED:01-12- 2010. Between 1.The District Collector, Nizamabad and others … Appellants-Defendants And Sripada Venkataramaiah …Respondent-Plaintiff THE HON’BLE SRI JUSTICE K.C.BHANU APPEAL SUIT NO.294 OF 1993 JUDGMENT: This appeal is filed against the judgment and decree, dated 18-03- 1991 in O.S.No.2 of 1989 on the file of the Subordinate Judge, Nizamabad, whereunder and whereby the suit filed for recovery of a sum of Rs.2,00,000/- was decreed for Rs.1,80,000/-with proportionate costs and subsequent interest at 12% per annum from the date of suit till the date of realization and dismissed the claim of the plaintiff for damages. 2. The appellants herein are the defendants and the respondent herein is the plaintiff in the suit. 3. The averments of the plaint in brief are as follows: The plaintiff is the Chairman of Sarvodaya Sangam, Nizamabad and exclusive owner and possessor of the building No.10-3-298 situated at Sivaji Nagar, Nizamabad and in possession of the said building since last 25 years. The plaintiff is the Chairman of a religious and Charitable institution duly registered under the provisions of Section 38 of the A.P. Charitable Hindu Religious Institution and Endowment Act, 1966 and about 8 years back in the month of August, the defendants with the assistance of their official powers, illegally occupied the said building and let it out to D3 for running Dharugalli Government High School, Nizamabad and the occupation of the premises by the school authorities is illegal and without any authority. At the initiation of plaintiff, the Asst., Commissioner, Endowment Department has submitted a proposal under Section 75 of the said Act to Deputy Commissioner, Hyderabad, basing on which O.S.47 of 1983 was registered adjudging occupat6ion of defendants as illegal and directed them to vacate the premises, failing which, the plaintiff is entitled to file E.P. proceedings and the plaintiff filed E.P.30 of 1984 before Munsif Magistrate, Nizamabad, who passed eviction orders and directed the defendants to hand over vacant possession of the suit premises. The defendants contested the case before Addl. District Judge, Nizamabad and consequently, the plaintiff filed Revision wherein the order of the Additional District Judge, Nizamabad was dismissed. On reference of Joint Collector, the Joint Commissioner, Endowments stayed the orders of Dy. Commissioner, Endowments, Hyderabad and the plaintiff filed writ petition, which was allowed. The Joint Collector filed writ appeal wherein the High Curt directed the Joint Commissioner to fix the rent, who in turn fixed the rent at Rs.1500/- per month and the defendants are liable to said rent from the date of their illegal occupation and on failure to pay the rent, it was ordered to file a civil suit. The plaintiff was put in possession of the building with the assistance of Superintendent of Police as directed by Munsif Magistrate in the execution proceedings. D1 addressed a letter to the Commissioner, Endowments, Hyderabad stating that the department will pay the rents. As the defendants failed to pay the rent, the suit is filed for recovery of rent amount of Rs.1500/- pm and also for damages caused to the building. The plaintiff got issued a notice to defendant on 12-09-1988 following the principles laid down in Section 80 CPC. Hence, the suit for recovery of Rs.2 lakhs towards rent and Rs.50,000/- towards damages caused to the building. 4. The defendants filed written statement denying the averments in the plaint. The plaintiff has no right to file the suit and only the Commissioner, Endowment can file the suit. They admitted that the plaintiff is the Chairman of the institution, but it was not registered. The institution applied for loan and A.P. Khadi and Village Industries Board sanctioned the loan which is due by the institution including interest accumulated to Rs.1,89,519.77ps. The A.P. Khadi and Village Industries Board requested the District Collector for recovery of loan and the Collector, instructed Tahsildar to recover the amount under R.R. Act. The Tahsildar attached suit premises on 23-09-1967 and took possession of the property. The plaintiff filed W.P.2331 of 1967 and the same was dismissed. Later on the pauper O.P. filed by the Managing Trustee was dismissed for default and a petition filed to restore the suit was dismissed. The matter was carried to High Court by the plaintiff and the same was also dismissed. The Tahsildar who attached the premises, put in auction and sold it for Rs.80,000/-, but the chief executive of A.P. Khadi and Village Industries Board found that the amount is very less, and as such O.S.56 of 1972 operates as resjudicata to this suit. There was protest from the students of Dharugalli High School for providing good accommodation, and as such, the Joint Collector, directed the Tahsildar to lease out the suit premises to education institution and accordingly, the suit premises was given to accommodate Dharugalli High School on 08-08-1980. The plaintiff approached the Asst. Commissioner, Endowments, who submitted a proposal to the Dy. Commissioner of Endowments that the school authority illegally occupied the suit premises and a case was registered by Dy. Commissioner of Endowments in O.A.47 of 1985 making Head Master, Dharugallli High School and another as parties and issued show cause notice to them, wherein they represented that they have not encroached the premises and they are lease holders in pursuance of the orders of Joint Collector, Nizamabad. Thereafter, the Dy. Commissioner passed ex part order directing the school authority to vacate the premises and got executed by filing petition in the Court. Against the said order, revision was filed and obtained stay order. The suit premises was under attachment under R.R. Act and without notice to authority, Dy. Commissioner passed ex parte order which is an error. When the proceedings under R.R. Act were not initiated by Government of A.P., the Dy. Commissioner, Endowments is not justified in passing the order treating the school authority as encroacher. Aggrieved by the order of Joint Commissioner, the defendant filed a revision petition before Government of Endowments and obtained stay order and as such, the suit cannot be entertained. The defendants are not bound to pay any rent. The notice under Section 80 CPC is not in accordance with the provisions of CPC. The State Government is a necessary party and as such, the suit is bad for non joinder of State Government and further A.P. Khadi and Village Industries Board is also necessary party. Hence, they pray to dismiss the suit with costs. 5. Basing on the above pleadings, the following issues were settled for trial: 1. Whether the plaintiff can maintain the suit? 2. Whether the suit is hit by principles of resjudicata? 3. Whether the suit premises was attached for recovery of amount due to A.P. Khadi and Village Industries Board, Hyderabad? 4. Whether State Government, Endowment, A.P. has stayed operation of order of Dy. Commissioner, dt.23-08-1984? 5. Whether Section 80 CPC notice s defective? 6. Whether suit is bad for non joinder of necessary parties? 7. To what relief the parties are entitled to? 6. On behalf of the plaintiff, P.Ws. 1 and 2 were examined and Exs.A1 to A21 were marked. On behalf of the defendant, D.Ws. 1 to 4 were examined and Exs.B1 was marked. 7. After considering the oral and documentary evidence available on record, the trial Court partly decreed the suit as above. Challenging the said judgment and decree, defendants preferred this appeal. 8. The contention of the learned counsel appearing for the appellants-defendants is that the respondent-plaintiff has no authority to file the suit for recovery of money as the suit premises is under attachment under Revenue Recovery Act, that the Joint Commissioner, Endowments has no right to fix the rent over the property as it is not endowment property, that P.W.D. authorities are competent to fix the rent, that the plaintiff’s organization is not registered under the institution under A.P. Charitable Hindu Religious Institution and Endowments Act, 1966, that there was no proper compliance of Section 80 CPC and the judgment in O.S.56 of 1972 operates as resjudicata and hence, he prays to set aside the impugned judgment. 9. None appears for the respondent-plaintiff in spite of giving several opportunities. 10. Points that are necessary for disposal of the present appeal are as follows: 1.Whether the plaintiff can maintain the suit? 2.Whether the suit is hit by principles of resjudicata? 3.Whether the suit premises was attached for recovery of amount due to A.P. Khadi and Village Industries Board, Hyderabad? 4.Whether State Government, Endowment, A.P. has stayed operation of order of Dy. Commissioner, dt.23-08-1984? 5.Whether Section 80 CPC notice s defective? 6.Whether suit is bad for non joinder of necessary parties? 7.To what relief the parties are entitled to? 11. With regard to point No.1, the evidence of P.W.1 coupled with Ex.A6 would go to show that P.W.1 was elected as Chairman of Sarvodaya Sangam and the same is recorded in the office of Assistant Commissioner, Endowments. The Assistant Commissioner, Endowments, in his evidence stated that P.W.1 is the Chairman of Sarvodaya Sangam, which is registered and the election to the said Sangam was recorded by the department and that P.W.1 is authorized by the department to file the suit. Ex.A19 is the trust deed of Sangam and Ex.A20 is the particulars of registration under Section 38 of the Act, in which, the name of the institution is noted as Nizamabad Sarvodaya Sangam. Therefore, the proceedings of the Commissioner clearly establish that P.W.1 is authorized to file the suit under Ex.A12, to collect the rents from the Head Master, Dharugalli High School, Nizamabad. Furthermore, there is no contra evidence adduced by defendant to show that P.W.1 is not competent to file the suit. Therefore, the findings of the trial Court cannot be said to be perverse. 12. With regard to point No.2, the contention of the learned counsel for the appellants is that the plaintiff filed the suit against A.P. Khadi and Village Industries Board, seeking declaration that the demand of Rs.1,89,519.77ps by the Board is illegal and judgment rendered by competent civil Court operates as resjudicata. The suit was filed for recovery of rent and damages. The defendants are not parties to the suit. When they are not parties to the suit, question of resjudicata does not arise. The lower Court held that the subject matter in O.S.56 of 1972 and the subject matter in the present suit is entirely different as the present suit is filed for recovery of damages. On the other hand, the previous suit was filed against A.P. Khadi and Village Industries Board seeking declaration that payment of loan amount by them is illegal. Question of Res judicata comes when an issue or a point decided by competent Court and attaining finality should not be allowed to be reopened and reagitated twice over. As such, when the issues in both the suits are entirely different, question of resjudicata does not arise. 13. With regard to point No.3, it is stated that the plaintiff obtained loan from the A.P. Khadi and Village Industries Board and a sum of Rs.1,89,519.77 ps was due and therefore, the suit premises was attached under Revenue Recovery Act. To substantiate the same, the defendants did not produce any evidence to show that the suit property was attached or that the plaintiff was due to an amount of Rs.1,89,519.77 ps. Ex.A13 is the report of the joint Commissioner, Endowments, whereunder the orders of the Deputy Commissioner was confirmed treating the school authority as encroachers. The defendants did not contest before the Deputy Commissioner saying that the property was attached. The proceedings of the Endowment department would go to show that the premises under which the school is in occupation is the property endowed to Sarvodaya Sangam, which is the Charitable Institution registered under Section 38 of the Act. The proceedings of the District Collector, to realize the dues are not made as part of record by producing the documents for the purpose of the case. Therefore, the possession that was handed over to the plaintiff from the Munsif Magistrate Court, Nizamabad under a cover of panchanama on 07-07- 1988 can safely be accepted. Therefore, this issue was answered in favour of the respondent herein. 14. With regard to point No.4, the stay order granted by the Government has become infructuous because the possession was already delivered prior to passing of stay granted by Government. The proceedings of the Deputy Commissioner as well as the Joint Commissioner of Endowments would go to show that the defendants are encroachers to the suit premises and ordered for eviction. The plaintiff filed petition to execute the order passed by the Joint Commissioner and the Principal District Munsif, Nizamabad, directed the bailiff to execute the order of the Joint Commissioner. When resistance was given, police aid was granted and the plaintiff was put in possession of the premises by the bailiff . Therefore, the contention on this aspect is untenable. 15. Coming to point No.5, suit is bad for non issuing of notice under Section 80 CPC, Ex.A2 is the office copy of notice issued by the plaintiff to the defendants on 12-09-1998. The said notice was received by the defendants under Exs.A3 to A5, which are the acknowledgments. After waiting for lapse of statutory period, the plaintiff filed the suit. The defendants did not explain as to how the suit is not maintainable under Section 80 CPC. 16. With regard to point No.6, for non-impleading of State Government and A.P. Khadi and Village Industries Board, they are not shown to be necessary parties because the Collector was representing the State in the capacity of District Collector. Further, A.P. Khadi and Village Industries Board is nothing to do with the title or possession of the property. Though it is alleged that certain amount was due by the plaintiff to A.P. Khadi and Village Industries Board, but that has to be decided in a separate forum, but not in this suit. 17. Coming to the fixation of rent by the Joint Commissioner of Endowment, the contention of the learned counsel for the appellants is that only R & B is competent to fix the rent. It is not in dispute that the suit premises was in possession of the defendants from 08-08-1980. The report of the Deputy Executive Engineer marked as Ex.A21 would go to show that he fixed monthly rental value of the building as Rs.3,250/- and assessed the damages at Rs.1,30,000/-. Therefore, the contention that the rent was not fixed by R & B cannot be accepted. The trial Court after elaborate consideration of evidence on record, rightly decreed the suit and absolutely, there are no grounds to interfere with the same. 18. Accordingly, the Appeal Suit is dismissed, but in the circumstances of the case, no order as to costs. -------------------- K.C.BHANU, J DATED:01-12- 2010 Hsd