IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FOURTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.C.C.A.No.179 OF 1994 Between:- Manmohan Pershad …Appellant A n d Bhagwandas @ Lal Baba Chela Gopal Das and another …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.C.C.A.No.179 OF 1994 JUDGMENT: This appeal is directed against the judgment and decree dated 27-02-1986 in O.S.No.10 of 1982, on the file of the Chief Judge, City Civil Court, Hyderabad, wherein the said suit filed by the appellant herein for setting aside the order dated 07-01-1982 in O.A.No.99 of 1976, on the file of the Deputy Commissioner of Endowments, Hyderabad, was dismissed. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents. Perused the record. 3 . The appellant herein filed an application in O.A.No.99 of 1976 before the second respondent-Deputy Commissioner of Endowments under Section 40 read with Section 77 of the A.P. Charitable and Hindu Religious Institutions and Endowment Act, 1966 (for short ‘the Act’) seeking modification of the entries in the certificate issued by the Assistant Commissioner, Endowments, Hyderabad under Section 38 of the Act and to describe him as mahant and founder trustee of Sankat Mochan Hanuman Temple, Kolsawadi, Begum Bazar, Hyderabad. After due enquiry, the Deputy Commissioner found that the first respondent herein renovated the temple by collecting funds from the devotees and it was a temple worshiped by the members of public and the claim of the appellant that the site on which the temple was located once belonged to his family was not established and there was no evidence to show that the ancestors of the appellant founded the temple. It was further held by the Deputy Commissioner that there is consistent evidence that the first respondent was managing the temple from 1962 and he was responsible for the pujapat, renovation, upkeep and maintenance of the temple and he alone constructed the structures over the idols. Aggrieved by the said order dated 10-10-1982 passed in O.A.No.99 of 1976, the suit O.S.No.10 of 1982 was filed by the appellant herein before the City Civil Court for declaration that the suit temple is a private temple and it need not be registered in the books of endowments and in the alternative if the temple is to be a public temple to declare the plaintiff as its hereditary trustee and to direct the Assistant Commissioner, Endowments to make necessary changes in the muntaqab issued by him with regard to the suit temple. 4. According to the plaintiff, the suit temple was private worshipping place of his family and about 50 years prior to filing of the suit, the open land surrounding the suit temple was acquired for construction of Osmania General Hospital and an extent of 28’ x 28’ together with a passage of about 88’ length and 8’ width was left out of acquisition and was retained by the plaintiff’s family. The plaintiff further pleads that his family appointed the first defendant as pujari on salary and in 1975 the first defendant turned hostile to the plaintiff’s family and filed an application before the Assistant Commissioner to register the temple as a public temple and to declare him as a founder and hereditary trustee. The plaintiff and his brothers filed objections and contested the said application. The Assistant Commissioner passed an order that the suit temple be registered as a public temple and the first defendant be recognized as pujari. The first defendant filed an application before the Deputy Commissioner under Section 40 read with 77 of the Act to modify the certificate and after enquiry, the Deputy Commissioner passed order in O.A.No.99 of 1976 holding that the suit temple is a public temple and the first defendant is founder and hereditary trustee of the suit temple. 5. The first defendant contested the suit on the ground that the suit temple is in a two storied building bearing municipal No.15-6-141, Kolsawadi, Begum Bazar, Hyderabad and that originally the idol of Hanuman was found under a neem tree in the area and no puja was being performed regularly and D-1 renovated the area and constructed the temple and installed navagrahas by raising donations from the members of the public and has been managing the affairs of the suit temple for the last 20 years. He further pleads that with the permission of the doctors and RMO of Osmania General Hospital, he has been performing the puja and managing the temple as hereditary trustee with the help of donations received from the members of the public. D-1 has been paying the municipal taxes and electricity charges. The entire land, including the area covered by the temple, was acquired by the Government for construction of Osmania General Hospital and on the request of the first respondent, the then RMO permitted him to render services to the idol of Hanuman in the area measuring 281.42 sq. yards, which area was left out of the acquisition proceedings. The first respondent denied that he was appointed as a pujari by the plaintiff’s family on a salary. According to him, the Assistant Commissioner, having registered the suit temple wrongly, declared D-1 as pujari and so he filed O.A.No.99 of 1976 and the Deputy Commissioner, Endowments by order dated 10-10-1981 declared that the first defendant was the founder and hereditary trustee of the suit temple. 6. The second defendant-Deputy Commissioner filed a written statement stating that the open land surrounding the suit temple was acquired for Osmania General Hospital and the area covered by the suit temple was left out of the acquisition and there was an idol of Hanuman under a neem tree and D-1 renovated the same and constructed the temple with donations raised from pubic and D-1 has been managing the affairs of the suit temple for 20 years and the plaintiff and his family was never in possession of the suit temple. D-2 further stated that the suit temple was registered in the books of endowments on the application of D-1 in the year 1986. He further states that the suit temple satisfied all the requirements of a public temple and, therefore, it is registered as a public temple. 7. On the strength of the pleadings, the trial Court framed the following issues: i) Whether the suit temple is a private temple? Whether the entry in the muntaqab is not correct? ii) Whether the 2nd defendant’s order for reasons stated in para 8 of the plaint is bad? iii) Whether the plaintiff is entitled to be declared as the hereditary trustee? iv) Whether the suit is within time? v) To what relief? 8. During trial, P.Ws.1 to 3 were examined and Ex.A- 1 was marked on behalf of the plaintiff. D.Ws.1 to 5 were examined and Exs.B-1 to B-10 were marked on behalf of the defendant. 9. On a consideration of the evidence available on record, the trial Court held that the plaintiff is not entitled to be declared as a hereditary trustee and the suit temple is not a private temple of the plaintiff’s family and the entries in the muntaqab are correct. The trial Court further held that the order passed by the second defendant is valid. On the question of limitation covered by issue No.4, the trial Court held that the suit is within time. However, in view of the findings on other issues, it was held that the plaintiff was not entitled to any other releifs claimed in the claim and accordingly the suit was dismissed. Aggrieved by the same, the plaintiff filed the present appeal. 10. The only question, which arises for consideration is – whether the suit temple was a private temple founded by the family of the plaintiff, as claimed by him, and, therefore, the entries in the muntaqab wherein the suit temple is registered as a public temple require alteration and in the event of the suit temple found to be a public temple, whether the plaintiff is entitled for the alternative relief that he is the hereditary trustee of the suit temple? 11. It is not disputed that originally there was no temple as such and the idol of Lord Hanuman was found under a neem tree and the defendant has been performing the puja etc., for the last over 20 years prior to filing of the suit. It is also not disputed that the surrounding area was acquired by the Government for construction of Osmania General Hospital, but, however a small extent of 281.42 sq. yards covering the temple and the access thereto was left out of the acquisition proceedings. The plaintiff contends that the entire extent, including the area covered by the temple, belonged to his family and the place where the temple exists was originally a private place of worship for their family and at the time of acquisition, the said portion was left out and his family has been responsible for the construction and maintenance of the temple and they appointed D-1 as pujari on salary. The first defendant denies the same and contends that he alone developed the area and renovated the temple premises by constructing the rooms and for housing the idol and installed navagrahas, idols, all with the help of donations raised from the members of the public and as the said temple is surrounded by hospital premises, he was conducting the worship with the permission of the hospital authorities. 12. The plaintiff has not filed any document either during enquiry before the Deputy Commissioner in O.A.No.99 of 1976 or before the trial Court to show that the suit temple or the area covered by it belonged to their family and the said area was left out of the acquisition proceedings. According to D-1, the suit temple was part of hospital premises and a public place of worship. When the plaintiff claims that the area covered by the suit temple was part of the private property owned by the plaintiff’s family and that the said piece of land of 281.42 sq. yards was left out of acquisition, the burden squarely lies on him to establish the same by producing necessary documentary evidence. The plaintiff has not filed any documentary evidence in support of the said contention. According to P.W.1, his elder brother and his paternal grandfather looked after the acquisition proceedings and he does not know about the same and he does not know how much compensation was paid and for what extent. The plaintiff’s brother also did not produce any record before the Deputy Commissioner to show that the said extent of 281.42 sq. yards belonged to their family and was left out of acquisition proceedings. As rightly observed by the trial Court, the land acquisition proceedings are public documents, but no attempt was made by the plaintiff to produce certified copies of the award or any other record relating to the acquisition proceedings. Even the notification of the proposed acquisition was not filed to show that the extent of 281.42 sq.yards, though belonged to the plaintiff’s family was out of the acquisition proceedings. The evidence of P.Ws.2 and 3 was rejected by the trial Court, as they admittedly had no personal knowledge of what they have deposed regarding the status of the suit temple. The oral evidence adduced on behalf of the plaintiff was, therefore, found to be of no help and in the absence of any documentary evidence, the trial Court had rightly held that the plaintiff failed to establish that the area of 281.42 sq. yards covered by the temple belonged to his family that it was left out of the acquisition proceedings and that the said area constituted private place of worship for the plaintiff’s family. 13. According to the plaintiff, his family was in management of the suit temple and D-1 was appointed by them as pujari on a salary of Rs.26/- per month besides 1 kg of rice and 1 kg of ghee. P.W.1, however, admitted that his family has not maintained any accounts regarding payment of any salary to D-1 or payment of taxes and incurring of other expenditure for the maintenance of the temple. He, however, admitted that D-1 was residing in the suit temple from the beginning and was doing the puja and the devotes also made offerings to the first defendant. The evidence of P.Ws.2 and 3, who claimed to be instrumental in joining D-1 as pujari on a monthly salary of Rs.25/-, was found artificial. On the other hand, the evidence adduced on behalf of the defendant disclosed that when idol alone was existing under a neem tree, it was the first defendant who started doing puja and improved the same by constructing temple with the donations raised from the public. Though P.W.1 claimed that he has proof to show that the temple was constructed by his family by spending amounts, he has not produced any such evidence. He does not even know when the navagrahas and idols were installed in the suit temple. In the absence of any evidence to show that the plaintiff or his family constructed the suit temple or renovated the same or installed the idols or that they were in management of affairs of the temple, the trial Court had rightly held that the plaintiff is not entitled for declaration that the suit temple was a private temple of the plaintiff’s family or that the plaintiff is a hereditary trustee. Admittedly, the suit temple is situate in a public place and the same is accessible to the members of the public and the same is being visited by public and the idol is worshipped by public. Even if the temple originated by way of an idol under a tree in a private place, by afflux of time it assumed the character of a public temple by being accessible to the members of the public and also worshipped by the public. In the absence of any evidence to the contra and the plaintiff having miserably failed to establish the character of the suit temple, as a private temple, the trial Court was justified in holding that the suit temple was rightly registered as a public temple in the muntaqab and the same does not require any alteration. Again there is absolutely nothing on record to show that the plaintiff appointed D-1 as a pujari or paid any salary to D-1. Of course, D-1 has not filed any document to show that he obtained any written permission from the hospital authorities to manage the affairs of the temple. But it does not absolve the plaintiff of discharging the burden cast on him to establish his claim of hereditary trusteeship. The documentary evidence adduced by the defendant would show that the first defendant has been managing the affairs of the suit temple, including its renovation, maintenance and performance of pujas. When the plaintiff failed to establish that their family spent any amount for construction of the temple or for conducting the rituals or for maintenance of the temple and when the evidence on record shows that the temple was being managed with the help of the donations raised from the members of the public, the plaintiff is not entitled to be declared as a hereditary trustee for the suit temple. It is not known as to who installed the idol. The evidence on record only shows that D-1 has been instrumental in renovating the area around the idol, which was found under a neem tree and giving it the shape of a temple and conducting pujas and other rituals in the temple. As the plaintiff failed to establish his claim that it was a private temple and even if it is held to be a public temple, he should be declared as a hereditary trustee, the impugned judgment and decree of the trial Court, dismissing the suit, do not call for any interference. There are absolutely no merits in the appeal. 14. In the result, the appeal is dismissed. There shall be no order as to costs. _____________________ G.V. SEETHAPATHY, J 14th September, 2010. Lrkm