IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY EIGHTH DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR APPEAL SUIT Nos.357 and 1468 of 2001 & CMP.No.116 of 2006 & WRIT PETITION No.12590 of 2001 APPEAL SUIT No.357 of 2001: BETWEEN The Executive Officer, Sri Bramaramba Mallikarjuna Swamy Temple, Beeramguda, Patancheru Mandal, Medak District. …APPELLANT AND Sai Krupa Homes and six others. …RESPONDENTS Counsel for the Appellant: MR. L. PRABHAKAR REDDY Counsel for the Respondents: MR. N. VASUDEVA REDDY APPEAL SUIT No.1468 of 2001: BETWEEN The Joint Collector, Medak District at Sangareddy. …APPELLANT AND Sai Krupa Homes and five others. …RESPONDENTS Counsel for the Appellant: GP FOR APPEALS Counsel for the Respondents 1 to 5: MR. N. VASUDEVA REDDY WRIT PETITION No.12590 of 2001: BETWEEN M/s. Sai Krupa Homes. …PETITIONER AND The Joint Collector, Medak District at Sangareddy and five others …RESPONDENTS Counsel for the Petitioner: MR. O. MANOHAR REDDY Counsel for the Respondents No.1: GP FOR REVENUE The Court made the following: - COMMON JUDGMENT: A.S.No.357 of 2001 is filed by the third defendant – Executive Officer, Sri Bramarambha Mallikarjuna Swamy Temple, Beeramguda, Patancheru Mandal, Medak District, against the decree in O.S.No.55 of 1997 on the file of the Senior Civil Judge, Sangareddy. A.S.No.1468 of 2001 is filed by defendants 1 and 2 i.e. Joint Collector, Medak District and Mandal Revenue Officer, Patancheru, against the very same decree. 2. Since the parties are common, both the appeals were heard together and are being disposed of by this common judgment. 3. Suit O.S.No.55 of 1997 was instituted by respondents 1 to 5 in both the appeals for relief of declaration of title and ownership of Sy.Nos.627/A and 674 admeasuring Ac.11.00 cents and Sy.Nos.627 and 674 also admeasuring Ac.11.00 cents at Beeramguda Village, Hamlet of Ameenpur Village, Patancheru Mandal, Medak District and for consequential perpetual injunction. The said suit was instituted by the aforesaid respondents on the basis of registered sale deeds executed in their favour by their vendors under Document Nos.6701 and 6702 of 1996 both dated 12.12.1996. 4. The aforesaid respondents/plaintiffs also claimed that they have been granted Record of Rights (ROR) for the year 1989-1990 under Ex.B31 and questioning the said record of rights, the Ex-Sarpanch of the village had filed a revision before the Joint Collector, Medak District, in case No.F3/5/Inam/96/F3/5060/95 and the said revision petition was allowed by modifying the said record of right by deleting the name of the respondents and recording the name of Sri Bramarambha Mallikarjuna Swamy Temple, by order of the Joint Collector dated 07.05.2001. Questioning the said order of the learned Joint Collector, the respondents have filed WP.No.12590 of 2001, which is also clubbed for hearing along with the aforesaid two appeals and is being disposed of by this judgment. 5. For the sake of convenience, the parties are referred to as they are arrayed in the suit. The relevant facts are as follows. 6. The suit schedule land of Ac.22.00 cents is claimed by the first plaintiff, which is a registered partnership firm and plaintiffs 2 to 5 are its partners. Under the registered sale deeds dated 12.12.1996, marked as Exs.A1 and A2, the plaintiffs claim that they have purchased the suit land from one T. Visweshwararao and Charka Raj @ Chakra Rao, sons of one T.V. Bhargava. It is claimed that the plaint schedule land fell to the share of their vendors as per compromise decree in O.S.No.95 of 1984 dated 01.02.1991 on the file of the Subordinate Judge, Sangareddy. The plaintiffs claimed that they have verified the title deeds and revenue records prior to purchase, had the schedule lands surveyed under a Panchanama by Survey Department dated 31.01.1994, marked as Ex.A6 and it is claimed that their vendors were enjoying the suit schedule land as absolute owners and pattadars right from 1345 Fasli (1934 AD) and from 1950-51 up to 1995-96 without any interruption and as such, even by prescription acquired title. The plaintiffs filed and marked their partnership deed as Ex.A3 and certified copies of title deeds were marked as Exs.A4 and A5 apart from Pahanis for the year 1965- 66 – Ex.A8; 1971-72 – Ex.A9; 1974-75 to 1980-81 – Exs.A10 to A14; 1985- 86 – Ex.A15; 1991-92 – Ex.A16 and 1995-96 – Ex.A17. The plaintiffs also filed land revenue receipts – Exs.A18 to A33; Encumbrance certificates – Exs.A34 and A35; acknowledgement of registration of firm – Ex.A36; certified copy of Wasool Baqui of 1344 Fasli (1935 AD) – Ex.A37 and Ex.A38 - Setwar of 1330 Fasli (1919). In addition to that they relied upon Ex.A39 memo issued by the MRO, Patancheru Mandal dated 21.04.1994 and Ex.A40 memo issued by the Joint Collector, Medak District dated 26.08.1977, to claim that the said authorities had certified that the aforesaid suit lands are not Inam lands but patta lands. It is further alleged that when they dug bore-well and were fencing the land they were threatened by MRO not to cultivate the land on 08.07.1997. The MRO is said to have visited the suit land and directed the plaintiffs to stop cultivation of the said land and based on the said cause of action the present suit is filed. 7. The first defendant filed a written statement, which was adopted by the second defendant. Later, the third defendant was also impleaded vide orders in I.A.No.822 of 1997 dated 24.03.1998 and he filed a separate written statement and additional written statement. The defendants claimed in the written statement that the civil Court has no jurisdiction to entertain the suit in view of Section 151 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter referred to as Act 30 of 1987). It is also claimed that the suit lands are temple lands and are entered in the book of endowments and even if patta stands in the individual name it is deemed to be a patta granted to the institution. Reliance is also placed on Wasool Baqui of 1344 Fasli, Khasra Pahani of 1954-55 and subsequent records to claim that the suit land is recorded in the name of Mallikarjuna Swamy and under Deval Nigrani under the supervision of Poojari. It is also claimed that the suit is not maintainable for non-compliance of Section 80 of the Civil Procedure Code, 1908 and even under Section 87 of the Act 30 of 1987 the civil Court would have no jurisdiction, as the authorities under the Act 30 of 1987 alone have to decide the nature of the land as to whether it belongs to endowment or private land. It was claimed that wrong entries were entered in some of the pahanis without sanction and after noticing the wrong entries, the District Registrar was informed by the Joint Collector not to register any sales but in spite of the same, the District Registrar has registered Exs.A1 and A2. It is also claimed that one A. Narasimha Reddy former Sarpanch of Ameenpur village, gave a complaint, which was enquired into by the Joint Collector, Medak and notices to all interested persons were issued. At this stage, the vendors of the plaintiffs sold away the land to the plaintiffs and the present suit is filed. 8. The third defendant claimed that the lands belong to the temple and stand in the name of Mallikarjuna Swamy Temple and were originally granted by HEH Nizam. Since the lands are Inam lands in the name of Diety, the Setwar and the Khasra Pahani record the name of Diety as pattadar and such subsequent wrong entries in the revenue record are of no consequence. It is alleged that the land was kept fallow as per the revenue record and the said claim of the plaintiffs that they were in possession is denied. 9. Based on the above, the trial Court framed the following issues and additional issues: 1. Whether the plaintiff is entitled for declaration of title of suit lands as prayed for? 2. Whether the plaintiff is entitled for seeking perpetual injunction against the defendants as prayed for? 3. Whether the suit lands belong to Mallikarjuna Swamy Temple lands (Endowment Book maintained by the Erstwhile Nizam Government) as prayed for? 4. Whether the civil Court has no jurisdiction to entertain the suit under Section 151 of Endowment Act? 5. Whether the VAO of Ameenpur village issued incorrect revenue receipts and there were wrong entries in the Revenue records as prayed by the defendants? 6. To what relief? ADDL. ISSUE: 1. Whether the plaintiff and their vendors perfected adverse possession and adverse title over the suit schedule land as pleaded by them? RECONSRUCTED ADDL. ISSUE: 1. Whether the vendors of the plaintiffs perfected their title to the suit schedule lands by way of adverse possession? 10. The plaintiffs examined their Managing Partner as P.W.1, one of their vendors as P.W.2 and two other witnesses as P.Ws.3 and 4. P.W.3 claimed that he is the Supervisor over the plaint schedule land on behalf of the plaintiffs and as such, he is only an employee of the plaintiffs. He claimed that he had approached the Revenue Divisional Officer to find out whether the suit lands are covered under endowment and he states that the RDO gave a certificate under Ex.A40 that the suit lands are not Inam lands. P.W.4 is a neighbour cultivator of the suit lands, who states that the temple is situated in Sy.No.993 whereas the suit lands bearing Sy.Nos.627 and 674 are patta lands. On behalf of the defendants, the MRO examined himself as D.W.1, the third defendant examined himself as D.W.2, the cultivator of the suit lands was examined as D.W3 and the Ex-Sarapanch, A. Narasimha Reddy, who had given complaint against the plaintiffs and at whose instance the ROR was corrected by the Joint Collector, was examined as D.W.4. The defendants filed Exs.B1 to B38, which primarily comprises of the revenue record beginning with Khasra Pahani – Ex.B2; pahanis from 1345 Fasli (1934) – Ex.B3; pahani extracts from 1950-51 to 1993-94 – Exs.B4 to B28; Setwar for the year 1330 Fasli – Ex.B29; Pahani for the year 1979-80 – Ex.B.30; ROR for the year 1989-90 – Ex.B31; Setwar for the year 1330 Fasli - Ex.B32 of 1330 Fasli (1919); Wasool Baqui of 1344 Fasli (1933) – Ex.B33 and Ex.B37 is page 230 of Endowment Register. In addition to the above exhibited documents, the plaintiffs have called for and marked Exs.C1 and C2, which are files of the endowments department relating to the minutes of the Renovation Committee of the temple. 11. After considering the aforesaid evidence, the trial Court found that (i) the civil Court has jurisdiction to entertain the suit as it is in the nature of declaration of title and for that purpose relied upon the Division Bench judgment of this Court in PINDI JAGGAYYA V. DEITY Of SEETHARAMASWAMY VARU [1987 (1) ALT 18] and came to the conclusion that the suit is maintainable; (ii) Issue No.5 was found to have been unnecessarily framed as it related to suspension of Village Administrative Officer for collecting land revenue, though it was abolished; (iii) On issue No.3 the trial Court found that the defendants are claiming the suit land as Inam land belonging to the temple and therefore, was of the view that the burden of proof is on the defendants; (iv) It was of the view that Ex.B37, which is the entry at page 230 of the Endowment Register, being in Urdu, in its translation filed by the defendant No.3 under Ex.37(a) found certain discrepancies and has refused to take into consideration the translation Ex.B37(a) as it was a translation done by a private agency, which has no authenticity, on the ground that the survey numbers mentioned in Ex.B37 are new survey numbers whereas the suit land had corresponding old Sy.Nos.475 and 528, which were not found in the old document Ex.B37; (v) the trial Court was also of the view that Exs.B2 to B28 and Exs.B30 and B31 shows that the lands are Sakari, which according to the trial Court means patta lands. The trial Court also relied upon the minutes of the renovation committee and accepted its minutes dated 20.01.1981, which are as follows: “The committee noted that the Hillock on which the temple is situated is covered by Sy.No.993/91 and admeasures altogether 354.34 acres except the land attached to the main temple, and the other subsidiary structures, no land at present is in the name of temple itself. The committee was of the view that the entire area should be got assigned by the Government in favour of the temple.” The above minutes are relied upon by the plaintiffs also to contend that there is no other land, which belongs to the temple. The trial Court, while discounting the aforesaid documents marked on behalf of the defendants, has accepted the pahanis marked by the plaintiffs viz. Exs.A8 to A17 and also entries in Exs.B2 to B33 to find that the vendors of the plaintiffs were in possession and enjoyment of the suit lands and also relied upon the evidence of D.W.1 that pattadar passbooks and title deeds under the Andhra Pradesh Rights in Land and Pattedar Pass Books Act, 1971 were issued to the vendors of the plaintiffs and his admission that the lands are not Inam lands. The trial Court also relied upon his statement that there is no document to show that the Nizam granted the suit land to the temple. Based on the above analysis, the trial Court came to the conclusion that the entries in Record of Rights are statutorily required to be presumed as true under Section 6 of the Andhra Pradesh Rights in Land and Pattedar Pass Books Act, 1971 and answered the issues in favour of the plaintiffs. The trial Court also found that the title deeds and pattadar passbooks show the possession of the plaintiffs and their predecessors over the statutory property and as such, they have perfected title by adverse possession also. Consequently, the suit was decreed as prayed for. 12. Mrs. A.B. Lalitha Gayathri, learned Assistant Government Pleader appearing in support of A.S.No.1468 of 2001 has contended that the suit is not maintainable in view of non-compliance of Section 80 of the Civil Procedure Code, 1908. It is also contended that the plaintiffs have failed to establish the title of their predecessors, though the plaintiffs claim that their vendors acquired title to the suit property through the decree passed in O.S.No.95 of 1984. The maintainability of the suit is also questioned in view of Section 87 (1) as well as Section 151 of the Act 30 of 1987. The finding of adverse possession is also questioned by contending that Article 65 of the Limitation Act is not kept in mind by the Court below while answering the said issues and lastly it is contended that the report of the committee under Exs.C1 and C2 has neither statutory nor has any probative value and is not conclusive. Learned Assistant Government Pleader places reliance on the following decisions: STATE OF MADRAS v. C.P. AGENCIES[1]; SAWAI SINGHAI NIRMAL CHAND v. UNION OF INDIA[2]; GOVERNMENT PRESS EMPLOYEES UNION v. RETURNING OFFICER AND DEPUTY COMMISSIONER OF LABOUR[3]; JUTURU SATYANARAYNA v. JUTURU LAKSHMI DEVAMMA[4]; KURELLA NAGA DRUVA VUDAYA BHASKARA RAO v. GALLA JANIKAMMA[5]; AMRENDRA PRATAP SINGH v. TEJ BAHADUR PRAJAPATI[6]; KSHITISH CHANDRA BOSE v. COMMISSIONER OF RANCHI[7]; STATE OF RAJASTHAN v. HARPHOOL SINGH[8] and MANDAL REVENUE OFFICER v. GOUNDLA VENKAIAH[9] 13. Mr. L. Prabhakar Reddy, the learned counsel appearing for the third defendant in support of A.S.No.357 of 2001, has supported the defendants 1 and 2 by contending that the plaintiffs suit documents Exs.A1 and A2 are mere certified copies and non-production of original documents warrants an adverse inference to be drawn against the plaintiffs, as plaintiffs failed to establish the ingredients of Section 65 of the Evidence Act. It is not a case of loss of originals and as such, the plaintiffs were not entitled to lead secondary evidence under Exs.A1 and A2. He also contended that the plaintiffs have not established that the suit properties are ancestral properties of their vendors and in view of Khasra Pahani - Ex.B2 and Endowment Register - Ex.B37; the title claimed by the plaintiffs is clearly unsustainable. He also contended that mere mutation of entries is not decisive and relied upon the following decisions: A.A. GOPALAKRISHNAN v. COCHIN DEVASWOM BOARD[10]; EERAPPA v. GOLLA NAGAIAH[11]; SAWARNI v. INDER KAUR[12]; T.K. MOHAMMED ABUBACKER v. P.S.M. AHAMED ABDUL KHADER[13]; JAGGAYYA v. DEITY OF SEETHARAMASWAMY VARU[14]; VEMAREDDI RAMARAGHAVA REDDY v. KONDURU SESHU REDDY[15]; H.P. VEDAVYASACHAR v. SHIVASHANKARA[16]; CHAKICHERLA AUDILAKSHMAMMA v. ATMAKURU RAMARAO[17] and SHEODHARI RAI v. SURAJ PRASAD SINGH[18]. 14. Mr. N. Vasudeva Reddy, learned counsel for the plaintiffs/respondents in both the appeals, support the judgment of the trial Court on the ground that Exs.A1 and A2 are certified copies of the sale deeds and they were received in evidence without any objection by any of the defendants and as such, at this distance of time, an objection under Section 65 of the Evidence Act cannot be raised. He also contended that the property originally belonged to one A. Venkanna, who was grandfather of the plaintiffs’ vendors. He was succeeded by his son Bharagava and later by Visweshwar Rao and Chakra Rao. He submitted that their possession from 1950 onwards is established and there is a decree by civil Court in O.S.No.95 of 1984 wherein the plaintiffs’ vendors succeeded to the property. He also relied upon the certificates issued by MRO and RDO – Exs.A39 and A40 that the suit lands are not Inam lands and also places reliance on Ex.B6 - Sesala Pahani of 1955-58, showing the vendors of the plaintiff as pattadars and possessors. He also argued that while the plaintiffs have discharged their burden based on Exs.A1 and A2 and revenue records, the defendants, however, have failed to discharge their burden. Learned counsel also raised a contention that pattadar passbooks and title deeds give rise to a presumption under Section 6-A(5) of the Andhra Pradesh Rights in Land and Pattedar Pass Books Act and that there is no document on record to show that the suit lands are given to the temple. Learned counsel also questions the authenticity of Ex.B37 entry in the endowment register by contending that it has neither any date nor any seal nor the authority, which has issued the same. He also questions as to how the new survey numbers could be mentioned in the said old documents and that no notification was published regarding the aforesaid land. He relied heavily on Exs.C1 and C2 to contend that the very responsible and high power committee has noted that there are no lands belonging to the temple except the hillock on which the temple exists and the suit lands are far away from the temple. He also contended that in the absence of registration of the temple under Section 43 of the Act 30 of 1987 it cannot be said to be a temple covered under Endowments Act and there is no question of the suit lands being the property of the temple. He also submitted that regarding non-compliance of Section 80 CPC there was neither any issue in the trial Court nor any contention raised and as such, the said question cannot be permitted at appellate stage. He has relied upon the following decisions in support of his contentions. JAGGAYYA v. DEITY OF SEETHARAMASWAMY VARU[19]; VIMAL CHAND GHEVARCHAND JAIN v. RAMAKANT EKNATH JADOO[20]; STATE OF GUJARAT v. MAHENDRAKUMAR PARSHOTTAMBHAI DESAI[21]; CHANUMOLU NIRMALA v. CHANUMOLU INDIRA DEVI[22] and D. SUBRAMANYAM v. K. BHAVANARAYANA[23] 15. On the basis of the above, the following questions arise for consideration: 1. Whether the plaintiffs’ suit is required to be held as not maintainable in view of non-compliance with Section 80 of the Civil Procedure Code? 2. Whether the plaintiffs can claim declaration of title based on secondary evidence under Exs.A1 and A2? 3. Whether the suit of the respondents is maintainable in view of Sections 87 and 151 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1857? 4. Whether the plaintiffs have discharged their burden under Section 34 of the Specific Relief Act? 5. Whether the plaintiffs have proved possession for over 30 years and whether they can claim adverse possession? 6. Whether the presumption of title has to be drawn in favour of the respondents/plaintiffs in view of memos of Mandal Revenue Officer and Revenue Divisional Officer under Exs.A39 and A40 and the pattadar passbooks and title deeds issued to the respondent/plaintiff under the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971? 7. What is the evidentiary value of Exs.C1 and C2? NOTICE UNDER SECTION 80 CPC: - 16. It is not in dispute that the respondents filed the present suit without issuing any notice under Section 80 CPC, though the suit was originally instituted against the Joint Collector, Medak District as defendant No.1 and Mandal Revenue Officer, Patancheru Mandal, as defendant No.2. Later, the Executive Officer of Bramarambha Mallikarjuna Swamy Temple was impleaded, as defendant No.3, vide orders in I.A.No.822 of 1997 dated 24.03.1998. Though the defendants are not impleaded as required under Section 79 CPC, in substance, the suit being one against the Government and the authority under the Endowments Act, compliance with Section 80 CPC was necessary. As required by Section 80 CPC, prima facie, the plaintiffs could not have maintained the suit without issuing notice in compliance with Section 80 CPC and the plaint must also contain a statement that such notice has been so delivered or left. 17. In the written statement filed by defendant Nos.1 and 2, it is contended in the very first sentence in Para 2 of the written statement that the suit is not maintainable for non-compliance with Section 80 CPC. However, it appears that all the parties lost their attention with regard to the said objection and consequently there was no issue on this aspect before the trial Court. In the grounds of appeal in A.S.Nos.1468 and 357 of 2001 filed by the defendants 1 and 2 as well as separately by defendant No.3 respectively, no such ground is raised objecting to the maintainability of the suit. 18. Learned Assistant Government Pleader appearing for the appellants in A.S.No.1468 of 2001 has relied upon the decisions of the Supreme Court in SAWAI SINGHAI NIRMAL CHAND’s case (2 supra); C.P. AGENCIES’s case (1 supra) and GOVERNMENT PRESS EMPLOYEES UNION’s case (3 supra) to contend that the suit is not maintainable. 19. Learned counsel for the respondents/plaintiffs submits that such contention cannot be allowed, as there was neither any issue nor any contention before the trial Court nor such ground was raised in any of the grounds of appeal. In substance, therefore, the learned counsel for the respondent submits that such objection is deemed to have been waived by the appellants. 20. The Supreme Court in BISHANDAYAL v. STATE OF ORISSA[24] considered the issue as to waiver of notice under Section 80 CPC and has held in Para 16 as follows: “16. There can be no dispute to the proposition that a notice under Section 80 can be waived. But the question is whether merely because in the amended written statement such a plea is not taken it amounts to waiver. This contention was argued before the Appellate Court. Even otherwise we find that in the suit itself Issue No. 4 had been raised as to whether or not there was a valid and appropriate notice under Section 80. Such a point having been taken in the original written statement and an issue having been raised, it was not necessary that in the amended written statement such a plea be again taken. On behalf of the Respondents, reliance has been placed on the case of Gangappa Gurupadappa Gugwad vs. Rachawwa [AIR 1971 SC 442] wherein it has been held that where the plaintiff's cause of action is against