THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.M.P.NOS.11764 OF 2002, 29692 OF 2003 AND A.S.M.P.2427 OF 2004 & A.S.NO.2205 OF 1992 JUDGMENT:- The defendants 1, 3, 5, 7, 11, 15 and 20 in O.S.No.145 of 1986 on the file of the court of Principal Subordinate Judge, Visakhaptnam are the appellants. The suit was filed for recovery of possession of the property which is said to be in long possession of the defendants. The allegations in the plaint in brief are as follows:- The plaintiff is a religious institution and the schedule lands are situated in Adavivaram village, which is an Inam estate and the possession of the village Adavivram was not taken. The Inam Deputy Tahsildar conducted an enquiry under Section 3 of the Inams (Abolition and Conversion into Ryotwari) Act of 1956 and declared that the lands in the village are imam belonging to the plaintiff-institution. An enquiry for grant of Ryotwari patta under Section.7 is pending for which the plaintiff is entitled. The Government did not undertake survey of the lands of the village Adavivram and one of the topes which is known as “Nagur Karim Saheb Garden” is in Sy.No.278 and shown as belonging to the institution. From the records, the ancestor of defendant Nos.1 to 31 by name Sanepale Varaha Narasimham was the licensee for the usufruct of the garden shown in the plaint schedule and was paying a licence fee of 14 Anas 3 paise and thereafter it was noted as Rs.4.89 paise as licence fee. Defendant Nos.1 to 13 are enjoying usufruct, but, they did not pay the licence fee from 1981-1982. While the matter stood thus, the defendant Nos.1 to 31 have laid out plots and executed sale deeds in favour of defendant Nos.32 to 97 who raised unauthorized constructions. The defendants have no right or interest in the property. Hence the suit is filed for declaration of title and recovery of possession of plaint schedule property and for consequential injunction from making any construction. The first defendant filed a written statement which was adopted by the other defendants. The defendants admitted that Ac.13.04 cents of land in Sy.No.276 of Adavivaram village is locally known as “Nagur Karim Saheb Garden”. The allegations that the plaintiff is recorded as the owner of the schedule property and that ancestors of the defendants are the licensees is also disputed. The further contention of the defendant in para.9 of the counter as follows:- “The plaintiff in fact and under law has no rights whatsoever in the land measuring Ac.13.04 cents and known as “Nagur Karim Saheb Garden”. The said land was originally part of Madavadhara village to the knowledge of the plaintiff. The said Madavadhara was also known as Madhavadharapalem and Madhavapalem. It was part of the Vizianagaram estate. Some time during the 18th century the said land along with the appurtenant land totally measuring about Ac.40.00 cents was given to one Nagur Karim Saheb by the Maharajah of Vizianagaram. The village was not surveyed by then. A kattubadi of Rs.4-12-0 was fixed by the Maharajah of Vizianagaram. The said Nagur Karim Saheb and later his successors in interest have been exercising absolute rights of ownership and possession over the propertysince then. Kattubadi was being paid to the Vizianagaram Estate of Pedagadi Thane to the Rajah of Vizianagaram. The Gudikalse account of 1826 and all other subsequent records relating to Madhavadhara village confirmed the same. While the land was so enjoyed byNagur Karim Saheb and his successors in interest, Smt.Sanapale Sanyasamma, w/o Sitaramayya was induced into the land as permanent kauldar by “Chikkam people” who were by then in possession and enjoyment of the land as owners. The husband of the said Smt.Sanapala Sanyasamma viz., Sri Sitaramayya is a lineal male ascendant of this defendant and defendants 2 to 30. Down from 1903 to date the defendants have been in continuous and uninterrupted possession and enjoyment of the land known as Nagur Karim Saheb Thota which is the subject matter of the suit in their own right and as absolute owners thereof. The plaintiff has never been in possession or enjoyment of this land at any point of time. It has neither proprietary interest nor possessory rights in the same. All the said lands totally measuring about Ac.40.00 were also mortgaged on several occasions by the predecessors in interest of defendants 1 to 30 thus making it clear that they were enjoying the property with all rights and incidence of ownership”. It was further pleaded that in 1903 a survey was conducted by the Government and during the said survey, a part of Madavadhara village was tacked on to the Adavivaram village for administrative purpose. The suit land was also part of Madavadhara village and original village of Adavivaram excluding the land that were tacked from Madavadhara village were given away by Maharaza of Vizianagaram to the plaintiff as an endowment with some other villages. For some reasons, the annual kattubadi was being colleted. It was further pleaded that for the lands in Madavadhara village pattas were issued under the Estates Abolition Act, but, however for such of those lands which were tacked on to the Adavivaram village, they were not given for which the defendants are entitled. The claim that defendant Nos.1 to 31 and their predecessors are licensees is not correct. With the advent of the Estates Abolition Act and abolition of all estates the defendants have become entitled for the pattas. Though there was no need to pay kattubadi after 1952 but the payment of Rs.4.89 paise was being made for the benefit of the deity. The suit as framed is not maintainable and is barred by limitation. On the basis of the above pleadings, necessary issues have been framed for trial and on behalf of the plaintiff PWs.1 to 3 are examined and marked Exs.A-1 to A-7. On behalf of the defendants Dws.1 and 2 are examined and marked Exs.B-1 to B-10. After considering the evidence on record, the lower court has decreed the suit of the plaintiff and aggrieved by the said judgment some of the defendants have preferred this appeal. Pending the appeal, the appellants have filed an application which is numbered as CMP No.29692 of 2003 to receive memorandum of appeal and the notices received from the R.D.O about the grant of patta to the plaintiff. The plaintiff has filed C.M.P.No.11764 of 2002 to receive the proceedings of the M.R.O which shows that a patta was issued on 14-08-1996. The above two applications therefore relate to the subsequent development of a patta issued in favour of the plaintiff which were being questioned before the RDO and before whom the appeal is said to be pending. Consequently, for a determination of the rights of the parties C.M.P.No.11764 of 2002 is allowed and the proceedings of the M.R.O dated 14-08-1996 issuing the patta to the plaintiff is marked as Ex.A-8 and the grounds of appeal and the notices of the R.D.O as sought to be filed by the appellants are marked as Exs.B-11 and 12. The plaintiff has also filed C.M.P.No.2427 of 2004 to receive the proceedings dated 09-08-1977 of the Inams Deputy Tahsildar under Section 3(3) of the Inams Abolition Act,1956 as an additional evidence and mark the same as Ex.A-9. This proceeding was also referred in the plaint and this being an order passed by the competent authority, the application is allowed and it is marked as Ex.A-9. Now the points that arise for consideration are:- 1. Whether the plaintiff is the owner of the schedule property? 2. Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? POINTS:- An objection has been raised by the counsel for the respondent/plaintiff contending that though there are 97 defendants, the appeal is not filed by all the defendants and therefore, the appeal is liable to be dismissed. However, the learned counsel for the appellants relied upon the provisions of Order 41, Rules. 4 and 33 and also a decision reported in Bajrangalal Shivchandrai Ruia Vs. Shashikant N.Ruia and others([1]) wherein it was held that even if all the aggrieved defendants have not filed the appeal, the appeal filed by the aggrieved persons cannot be said to be not maintainable. Order 41, Rule 4 is clear on this aspect and consequently the said objection has to be rejected. The substance of the contention of the counsel for the appellants is since the pattas said to have been granted after the institution of the suit in favour of the plaintiff-institution, which is under challenge before the R.D.O, the matter may be remanded to the lower court and for fresh disposal after considering the rights of the parties about the entitlement of pattas. It has also been contended that ancestors of the defendants have been continuous possession and enjoyment of the property in their own right and the land is not belonging to the institution and consequently it is a case where the plaintiff has failed to prove the title to the property. The main contention is that the plaintiff having come to the court should establish the title and the weakness of the case of the defendants, if any, is no ground to decree the suit of the plaintiff when once the possession of the defendants is established since long time. The question is as to whether the suit schedule properties are situated in Madavadhara village originally and thereafter tacked on to the Adavivaram village as contended by the defendants. The lower court has found that there is no material to prove the same and none of the documents filed by the defendants. It is the contention of the appellants that the lands are in estate village and the Madavadhara estate was taken over in 1949. But it is not in dispute that both the villages Madavadhara and Adavivaram belonged to Maharaja of Vizianagaram. The evidence of Dw.1 shows that they have preferred a claim before the Settlement Officer in 1948 with regard to this land and it is still pending and he does not know the details of it. Further more, he admits that out of ignorance they paid kattubadi to temple till 1973. Therefore, these two admissions of DW.1 clearly go to show that apart from the failure to prove that a patta was granted to them, they were paying kattubadi to the institution. Evidently, the lands are known as “Karim Saheb Garden”. Even as per the own showing of the defendants, these lands were leased out for cultivation in 1903 or earlier. Therefore, what ever rights enjoyed by the predecessors-in-title of the defendants is only the right of occupancy as tenants and not as owners. The fact that the defendants and their predecessors have admittedly paid the kattubadi till 1973 is a proof positive of the fact that the lands belong to the institution and that they are only the tenants having entered into possession as tenants of the property, they cannot deny the ownership of the lands. Even otherwise, the mortgage deed said to have been executed earlier will not create any right or title and the contention of the counsel for the appellants basing on Exs.B-9 or B-10 has no value at all. It is not in dispute that on 09-08-1977 the Special Deputy Tahsildar (Inams), Visakhapatnam has served notices to the some of the cultivating tenants and verified the records and these are all inam lands covered by T.D.Nos.1174 to 1182 and the lands were held to be imam lands belonging to the institution which is the plaintiff excluding the poromboke or waste lands. Evidently, the suit schedule properties are not poromboke or waste lands. This is the order, which is now marked as Ex.A-9 and it was also referred in the plaint. Evidently, there was no challenge against this order. In this connection, the learned counsel for the respondent has relied upon the decision reported in Moolavisal Nagabhushanam and others Vs. Revenue Divisional Officer, Markapur and others ([2]) wherein it was held that when once the decision under Section. 3(3) has become final, there can be no further opportunity to be heard under Section.7 of the Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwardi) Act,1956. He also relied upon a decision reported in Lingamgunta Venkateswarlu Vs. Gram Panchayat, Lingamgunta ([3]) wherein it was held that the proceedings under the above Act under Sections. 4 or 7 are binding and cannot be re-agitated in a civil court to the extent the decision has become final. He also further relied upon the decision reported in Sri Malleswara Swami Vari Temple, Dharmavaram, rep. by the Executive Officer Vs. Juttiga and others([4]), which reiterates the earlier decision and wherein it was held that Section.3 decision is final and personal notice is also necessary. It is not in dispute that there is no admit made by the appellants or their predecessors at any point of time to show that the lands does not belong to the institution. In fact, the order-Ex.A-8 which was issued subsequently clearly goes to show that as the lands belong to the institution, patta was granted. Merely because under Exs.B-10 and B-11, the defendants are challenging the same, it does not mean the binding nature of Ex.A-8 or A-9 is lost. It is pertinent to note that the appellants have not filed any application till this day to grant patta on the basis of the occupancy as tenants under the Inams Abolition Act. Having kept quite for long years and when once the declaration that the property is the property of the institution has become final, it is not permissible for the appellants now to contend that the land is not belonging to the plaintiff and that they are the owners of the property. As already stated having claimed the property from the predecessors also as tenants and paying kattubadi to the institution cannot deny the title of the plaintiff. When once the defendants deny the right of the plaintiff and denying the factum of tenancy, they become trespassers without any right. Their possession, therefore, cannot be protected. The counsel for the appellants relied upon a decision reported in Nori Madhusudan and others Vs. Vatticherukuru Village Panchayat ([5]) to show that the civil Court has no jurisdiction but the judgment in that case has no application to the facts of this case as it does not relate to the challenge with regard to grant of patta. The suit is based on title and for recovery of possession of the property. The lower court has considered all the aspects in the right perspective. Exs.A-1 and A-4 shows that the lands in Adavivaram village which is abutting Madavadhara and Ex.A-2 the register maintained by the temple shows that it is inam dry land as per entry at page No.105 in “A” register. The lower court has also believed Ex.A-3 which goes to show that there was payment of rent till 1981 and it is difficult to believe that they were manipulated. When defendants themselves plead that they have been paying kattubadi till 1973, it is difficult to accept the contention of the appellants that out of charity or for the benefit of the temple only they were paying the kattubadi. An intention to have a hostile title is not inferable from the above conduct. In fact, the land itself was a grant by the Maharaja on payment of kattubadi and Ex.B-10 mortgage deed refers only to the usufruct. Even otherwise, when the owner was given only a right of occupation, a mortgage of the rights in the property cannot be taken as valid. What ever documents the predecessors of the defendants claims to have derived are not before the court. Therefore, from the material evidence on record, I have no hesitation in holding that the lands belong to the temple and it is abundantly made clear by Exs.A-8 and A-9 and also admission of the defendants about the kattubadi to the institution treating the plaintiff as owner of the property and setting up of title by the defendants is not valid and the request of the counsel for the appellants for remand of the case for fresh determination till the disposal of the appeal under Ex.B-10 is not tenable since the institution was already recognized as owner of the property and till this date there is absolutely no attempt made by the defendants to get patta of any nature and, therefore, their rights are not recognisable under law. Therefore, I find that there are no merits in the appeal and the appeal is liable to be dismissed. In the result, A.S.M.P.Nos.11764 OF 2002, 29692 OF 2003 and A.S.M.P.2427 OF 2004 are allowed and Appeal Suit is dismissed with costs. _______________________ N.R.L. NĀGESWARA RĀO,J 18-10-2011 TSNR [1] AIR 2004 S.C. 2546 [2] 1963 (II) A.W.R.201 [3] 1988(1) ALT 281 [4] 1971 (1) A.W.R.27 [5] 1991 Supp (2) S.C.C. 228