THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO L.P.A.NOs.178 & 179 OF 1991 COMMON JUDGMENT: Per the Hon'ble Sri Justice Ghulam Mohammed These two appeals under, Clause 15 of the Letters Patent, are filed by the same parties as the dispute with regard to the property in question is also same, hence, both the appeals are heard together and are disposed of by this common judgment. L.P.A.Nos.178 & 179 of 1991 are filed against the common Judgment and Decree passed by the learned single Judge of this Court, in A.S.No.82 of 1978 and A.S.No.35 of 1979, dated 22-11-1986, respectively. For the sake of convenience, the parties are referred to as arrayed in the court below. The undisputed facts in nutshell are as under: Both the abovementioned Appeal Suits (A.S.Nos.82 of 1978 and 35 of 1979) are directed against the Judgment and Decree in O.S.No.143 of 1970, made by the Subordinate Judge, Eluru. A.S.No.35 of 1979 was preferred by defendants 1 to 3, while A.S.No.82 of 1978 was preferred by the plaintiff-diety. It is the case of the plaintiff that the suit schedule property was the absolute property of the diety. Defendants 1 to 3 were Archakas and were acting as de-facto trustees. In the year 1963, though de jure trustees were appointed, defendants 1 to 3 did not handover the management of the subject temple to them. It is further stated that defendants 1 to 3 sold Ac.5.41 cents in Item No.5, the whole of Item No.9, Ac.0-98 cents in Item No.10, Acs.10-29 cents in Item No.11 and Ac.0-62 ½ cents in Item No.12 of the Plaint ‘A’ schedule property to defendants 4 to 18 and put them in possession thereof. It is contended that the defendants 1 to 3 have no right to alienate the temple properties and the alienations made in favour of defendants 4 to 18, are not binding on the plaintiff. The defendants are liable to deliver possession and to account for mesne profits for three years prior to the filing of the suit. Defendants 1 to 3 filed a written statement contending that the plaintiff is entitled to Item Nos. 3, 4 and 8 of the plaint ‘A’ schedule properties only, whereas Item Nos.1, 2, 5 to 7 and 9 to 12 are concerned, they were the absolute owners, and also that Item Nos.6, 9 and 12 originally belong to their great grand father Ayaluri Ganganna, who was granted the same by the Collector Godavari District on 05-02-1874 and since then, the successors in interest of him have been in possession and enjoyment. They also contended that they are in continuous possession of Item Nos.1, 2, 5 and 7 for the last 90 years and thereby they perfected their title by adverse possession. One Mr. T. Lakshmipathi claiming to be the trustee of the plaintiff temple, filed O.P.No.124 of 1944 in the District Court, West Godavari, Eluru, under Section 78 of the Madras Hindu Religious Endowments Act, for recovery of the Plaint ‘A’ schedule items except Item No.8 against the 1st defendant and others and that the said petition was dismissed, therefore, the claim of the plaintiff temple is barred by limitation. The 10th defendant is in possession of Ac.2-50 cents. The 12th defendant is in possession of As.1-20 cents. The 2nd defendant is in possession of Ac.1-20 cents of Item No.11. The 1st defendant is not in possession of any item of the Plaint ‘A’ schedule lands. Item Nos.3, 4 and 8 are not in possession of the defendants. Defendants 4 to 7 and 14 filed a separate written statement and contended that the 3rd defendant executed an agreement of sale dated 25-03-1968 in favour of the 4th defendant to sell 6 cents in Item No.12 of the Plaint ‘A’ schedule land and put him in possession of that site, having received the entire consideration. The 4th defendant has raised a thatched shed therein. The 5th defendant contended that he purchased 8 cents of site in Item No.12, under a registered sale deed dated 28-05-1959 from the 3rd defendant, and constructed a house therein. The 6th defendant contended that he purchased Ac.0-12 cents in Item No.12 from defendants 1 and 2 under a registered sale deed dated 11-04-1959, and constructed a house therein. The 14th defendant contended that himself and one Pasumarthi Pattayya purchased 230 square yards in Item No.12 from the 1st defendant under a registered sale deed dated 26-09-1956 and that they constructed a shed therein. Defendants 8 to 13 and 15 to 17 filed a separate written statement in respect of Item No.11 of the Plaint ‘A’ schedule property. They stated that the 8th defendant purchased Ac.3-00 cents of land in Item No.11 from the 2nd defendant and his sons under a registered sale deed dated 25-03-1960. He also purchased one acre in Item No.11 from the 1st defendant under a registered sale deed dated 19-07-1960. He also purchased Ac.3-16 in Item No.15 from the 2nd defendant under a registered sale deed dated 02-06-1969. He also purchased Ac.2-15 cents in Item No.5 of the Plaint ‘A’ schedule property from the 3rd defendant under a registered sale deed dated 01- 06-1966. He improved the lands. The 9th defendant contended that he purchased Ac.1-25 cents in Item No.11 from the 3rd defendant under a registered sale deed dated 23-01-1962. He also purchased Ac.1-90 cents in Item No.9 from the 3rd defendant under a registered sale deed dated 14-09- 1965. The 20th defendant contended that he purchased Ac.2-50 cents in Item No.11 of the Plaint ‘A’ schedule property from the 3rd defendant under a registered sale deed dated 19-04-1961. Defendants 11 and 16 contended that they jointly purchased Ac.1-01 cents in Item No.11 of the Plaint ‘A’ schedule property from the 3rd defendant under a registered sale deed dated 03-07- 1962. The 12th defendant purchased Ac. 0-60 cents in Item No.11 from the 1st defendant and another Ac.0-60 cents from the same defendant respectively under two registered sale deed dated 10-05-1967 and 19-06-1968. The 13th defendant purchased Ac.0-98 cents in Item No.11 from the 3rd defendant under a registered sale deed dated 29-10-1967. The 15th defendant purchased Ac.0-50 cents in Item No.11 from the 1st defendant under a registered sale deed dated 06-06-1962. The 17th defendant purchased Ac.0-90 cents in Item No.11 from the 3rd defendant under a registered sale deed dated 22- 04-1963. It is stated that all the defendants were purchasers as mentioned above for consideration and in good faith and that they have been in enjoyment of the property absolutely, and that they have perfected title by adverse possession. Defendants 19 to 23 filed a memo adopting the written statement of the 8th defendant. The 18th defendant remained ex parte. The learned subordinate Judge framed 14 issues for consideration. Issues 2, 3, 4, 9 and 10 deal with the question of title and adverse possession. Upon those issues, it was conceded by the defendants, as mentioned earlier, that they were not claiming any title in respect of Item Nos.3, 4 and 8 of the plaint schedule. In respect of the others, the defendants claimed title on the basis of certain documents or title by way of adverse possession. The learned Subordinate Judge then considered the documentary and oral evidence and came to the conclusion that the plaintiff had established title in respect of all the suit properties and that the defendants had not established adverse possession and that the suit is liable to be decreed in respect of all the Items in the Plaint ‘A’ schedule. Under Issues 5 and 11, the learned Subordinate Judge held that defendants 4 to 17 are bona fide purchasers for value but that they did not prove any title to the property and they were not entitled to recover the amount spent by them for improvements. He also held that defendants 4 to 7 had constructed houses by spending the amounts mentioned by them in their evidence. He further held that defendants 8 to 13, 15 and 17 had spent various amounts as deposed to by them for reclamation and manuring of the respective lands purchased by them. He then stated that Issue 6 need not be considered as the 12th defendant was a party to the suit. He held on Issue No.7 that defendants 1 to 18 are liable to render account for 3 years prior to the filing of the suit. On issue No.10, he held that inasmuch as the defendants are bona fide purchasers and as defendants 4 to 7 have constructed houses and the other defendants have toiled and improved the lands inasmuch as the plaintiff has, in any event, leased out the land, it was a fit case where defendants 4 to 7 who constructed the houses should be continued in possession on payment of reasonable lease amount and that so far as the other defendants who purchased the land are concerned, they should also be continued subject to payment of lease amount to be fixed by the plaintiff temple. In case any of the defendants committed default in paying the lease amount, the temple would be at liberty to take possession. He held on issue No.1 relating to jurisdiction, that no arguments were advanced and similarly on issue Nos.8 and 12, he held that the suit was not barred by time and that the Court fee paid was correct. Finally, under Issue No.13, he passed a decree for possession of the entire Plaint ‘A’ schedule properties but stated that defendants 4 to 18 shall continue in possession on payment of reasonable lease amounts or produce to the plaintiff temple, to be fixed by the temple authorities from time to time and that in default, the temple could recover possession of the property from such of the defendants who committed default. He also held that defendants are liable for profits for three years prior to suit, and that the plaintiff temple should file a separate application under Order 20 Rule 12 CPC. Against the said Judgment, defendants 1 to 3 preferred A.S.No.35 of 1979 insofar as the Judgment was against them and the alliances, contending that the Civil Court has no jurisdiction to try the questions arising in the case and that even otherwise, on merits, defendants 1 to 3 have made out a case against the temple in respect of the suit schedule items, except Item Nos.3, 4 and 8, which have been conceded in the lower Court. Defendants 1 to 3 have impleaded their alliances also as respondents. The plaintiff preferred A.S.No.82 of 1978 as against the finding and directions given under Issue No.10, contending that the direction given by the learned Judge for continuing defendants 4 to 18 in possession as lessees is not warranted. The learned single Judge of this Court clubbed both the appeals together, heard and held that the Judgment of the learned Subordinate Judge is quite unsatisfactory and does not deal in detail with the documentary evidence on record. The learned Judge noted the survey numbers of the suit items and their extents and correlated them to the earlier documents and the previous survey and settlements, right from 1275 Fasli, i.e., 1865. The learned Judge noted that so far as Item Nos.3, 4 and 8 are concerned, the defendants have not claimed any title and since, they have conceded the title of the deity and there has been no dispute in the lower Court nor has there been any dispute before this Court, they need not be dealt with. The dispute, therefore, remained in respect of other items, viz., Item Nos.1, 2, 5, 6, 7, 9, 10, 11 and 12 of the Plaint ‘A’ schedule. The learned Judge held that since the plaint schedule gives survey numbers of the land as obtaining for some period before the filing of the suit and that in the Madras Presidency there have been separate surveys conducted roughly in 1860, 1890 and some time in 1930 and each time the survey went on for some years and separate survey and settlements were made, inasmuch as the document in this case relate to the 19th century, the above survey numbers were correlated with the old survey numbers, which are available from Ex.A-3 – certified copy of the resettlement register of the suit village. The learned Judge perused Ex.B-1- certified copy of the register of lands in Tadepalli Village of Ernagudem Taluk, showing the names of the pattedars for Fasli 1275 (1865/66), which is in respect of Survey Numbers 503, 504, 584 and 820 and correlated the old survey numbers, extent and nature of land and on whom the patta was granted. He has also considered Ex.A-2 – Inam Fair Register, dated 07-12-1869. After considering the voluminous material, the learned Judge, set aside the Judgment and Decree of the lower Court and dismissed the suit except as regards Item Nos. 1 to 5 and 8 and part of Item No.10 (44 cents in Survey No.517) and the Decree will be against defendants 1 to 3 and defendants 5 and 13. However, the possession of the 8th defendant relating to Ac.5-41 cents in Item No.10 will not be disturbed unless they fail to exercise the option to abide by the payment of reasonable rent that may be fixed by the Assistant Commissioner as mentioned in the Judgment. So far as defendants 1 to 3 are concerned, they are liable to restore possession of Item Nos.1, 2, 3, 4 and Ac.1-98 cents in Item No.5, the entire extent of Item No.8 and Ac.0-04 cents in Item No.10, if not already delivered. The mesne profits payable by the above said defendants will be only for a period of six years backwards from that day. The mesne profits will have to be ascertained with regard to the extent in actual possession of all or any of defendants 1 to 3 and 13, and shall be limited to such land which is proved to be in their possession. The learned Judge categorically found that the temple has not established its case, since, under Column No.22 of Ex.A-2, which deals with the decision of the Inam Commissioner is mentioned as “struck out” and signed as 07-12-1969. With these directions, the learned Judge allowed A.S.No.35 of 1979 in part and dismissed A.S.No.82 of 1978. Learned counsel for the plaintiff contended that the learned Single Judge has erred in allowing some defendants to continue as tenants even after a decree was passed against them, without putting the leasehold rights to public auction. He further contended that the learned Single Judge ought not to have treated Ex.B.26 as Ryotwari patta granted to Ayalani Ganganna. According to him, though the learned Single Judge held that the defendants have not established their title over item 7 of the plaint schedule property, a decree in respect thereof was not passed against the plaintiff. The learned counsel for the respondents has drawn our attention to the Judgment rendered by the Madras High Court in VADLAMANNATY BALA TRIPURA SUNDARAMMA v. SECRETARY OF STATE AND OTHERS[1], wherein a similar question has fallen for consideration and the learned Judge while dealing with the difference between grant to religious institution and grant to a person, indicated the use of the word “ devadayam”, which is not conclusive in favour of the temple or mosque itself, and held as follows: “………….. No doubt, if all the entries indicate that the grant was for the mosque it would be a very clear case; but if not one of such indicia as in that case is present, and there is a total absence of the indication of ownership of the mosque, the mere use of the word “devadayam” does not necessarily show that the grant was to the mosque, as the other cases cited by me show. In SIKKANDAR v. SECRETARY OF STATE ( [1917] 5 M.L.W. 401 = 38 I.C. 200). Srinivasa Aiyangar, J. says about “devadayam” that by itself it is said to be prima facie strong proof. It is clear that the word “devadayam” indicates a gift for religious purposes, but does not necessarily connote anything more. The reason is in that the British Government when it dealt with imams in 1859 appointed an Inam Commission for enquiring into the genuineness of the imams so that they may be recognized and confirmed or not as the cases require. They dealt with both classes of cases, namely, the grants to temple and mosques and grants to servants on condition of rendering services in temples and mosques together. From their point of view they were all connected with Hindu or Mohammedan religion and their policy was not to impose quit-rent on them, but to recognize and continue the inam so long as the conditions of the grants were being fulfilled, that is, in the case of grants to mosques or temples, as long as the institutions themselves lasted, and, in the case of grants on condition of services, as long as the services continued to be performed. Title-deeds were accordingly issued with the clause.” The learned counsel for the respondents has also relied upon a Judgment of our High Court in BOPPUDI PUNNIAH v. LAKSHMI NARASIMHASWAMY VARU, BY ITS TRUSTEE[2], wherein the learned Judge, while dealing with the question whether the imams could be described as grants to persons fulfilling a particular capacity, i.e., to persons holding a particular office in the temple, held as under: “(6) The short question that fall for consideration in these writ petitions is whether the imams could be described as grants to persons fulfilling a particular capacity, i.e., to persons holding a particular office in the temple of Sri Varahalakshminarasimhaswamy, singarayakonda, Nellore district. The contention urged on behalf of the petitioners that they were grants made to named individuals subject to the obligation of rendering a particular service is mainly founded on the entries in columns 13, 16 and 17 wherein the names of the original grantees and the names of persons enjoying the properties at the time of the inam enquiry are given. These columns mention the names of the original grantees as also those of the owners at the relevant time. (7) We do not think that these entries are in any way conclusive. If we turn to the entries under columns 8, 10 and 21, it would clearly show that the imams were intended to serve an emoluments annexed to an office. Column 8 shows that the imams were given for repeating Vedas in the pagoda in the festivals and that service was being performed. Under column 10, namely, “tenure hereditary unconditional for life only or for two or more lives,” the entry made is “so long as service is performed”. Significantly enough, it does not say that it was hereditary. When we come to column 21, which is of a very decisive character, the recommendation of the Deputy collector was that, it should be confirmed so long as the service was performed. In consonance with this recommendation, the Inam Commissioner confirmed the inams as recommended. (8) Could it be postulated in the light of these entries that the imams were personal to the grantee. We feel that they were not granted to named individuals subject to the condition of rendering service, but they were imams intended to form part of the emoluments of the office of particular service. If really the grant was to an individual with the added obligation, the grant would have been confirmed to a named individual so long as the service was performed. On the other hand, the confirmation is couched in passive language, namely, “so long as the service is performed”, which is a clear indication that it pertains to the office. In view of the recitals in columns 8, 10 and 20, the mention of the names of the grantees or of the enjoyers of the property under columns 13, 16 and 17 cannot have much significance. These names, in our opinion, were mentioned as persons rendering service and enjoying the income from the lands and the grants could have been made to individuals indicated therein not as personal grants but as incumbents of a particular service.” The other Judgment of this Court, relied upon by the learned counsel for the respondents, in SRI VALLABHARAJASWAMI VARU (DIETY) OF SWARNA, BY ITS MANAGING TRUSTEE v. DEEVI HANUMACHARYULU AND OTHERS[3], is to the following effect: “………………. On a consideration of the documentary evidence and the principles laid down in the above decisions, the following conclusions are deduced : Though the inam is described as Devadayam, it is not conclusive of the fact that it was granted to the Diety but it merely indicates that it is for a religious purpose. Unless the grant is made in favour of the Deity or the Manager for the time being, as representing the temple, it cannot be considered as a grant to the Deity. The mere fact that column 22 of the Inam Fair Register does not mention the name of the individual in whose favour the inam is to be confirmed does not conclude the matter in view of the fact that column 21 of the Inam Fair Register contains a clear recommendation that the inam should be confirmed to an individual. The recommendations contained in the Inam Fair Register have to be read along with the recitals in the inam title deed which was issued as a result of the inam proceedings. The description of the inam as Devadayam Pagoda inam in the title deed is not indicative of the fact that it was granted to the Deity. It should be construed in the same manner as the word “Devadayam” occurring in the Inam Fair Register, is construed, namely that it is only for a religious purpose.” We have perused the above cited Judgments. The learned counsel for the respondents contended that the inam proceedings were not confirmed and they were not approved by the Commissioner and the same were dropped in respect of Ac.1-25 cents. We have perused Ex.A-2, which clearly indicates that the Inam Commissioner has not considered it appropriate to continue the Proceedings and he has concluded by striking out further action in the matter. The Judgment of the Madras High Court in BALA TRIPURA SUNDARAMMA’s case ( cited 1 supra) also makes the position clear that when once the Inam Fair Register’s proceedings are dropped, it has to be confirmed by the appropriate authority, namely, the Inam Commissioner. In our considered opinion, the decision of the learned Judge does not warrant any interference now, inasmuch as the scope of L.P.A. is narrow and limited. We have summoned Ex.A-2 along with other related documents and given our anxious consideration to the same. Admittedly, Ex.A2 shows the extent of the land as Ac.1.28 cents and describes the same as devadayam and Col. No. 10 states that “so long as service is performed” and Col. No. 17 shows the name of the present owner as “Sri Veereswaraswamivari – worshipper Ayaluri Ganganna”. Col.No. 21 deals with the remarks of the Inam Commissioner, it is mentioned “to be confirmed and is signed by one Srinivasa Mudali, Deputy Commissioner for the Inam Commissioner and Col. 22 deals with the decision of the Inam Commissioner and it is mentioned as “struck out”. At this juncture, it is important to notice Ex.B26 which is a small printed book dated 05.02.1874. It shows that the patta was issued by the District Collector, Godavari District in respect of certain lands to Ayaluri Ganganna, archaka of Sri Veereswaraswamyvaru, Tadepalli Village. From the point of view of these documents, coupled with the settled legal position that the words ‘devadayam’ does not necessarily mean an endowment to the diety and it is connected with a religious purpose, it has to be construed that Ayaluri Ganganna is the present owner and not the diety. Therefore, the learned Judge has rightly held that the defendants have established title in respect of items 6, 9, part of item 10, items 11