THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.246 of 2010 JUDGMENT: The appellants filed O.S.No.219 of 1995 in the Court of Principal Junior Civil Judge, Addanki, challenging the order, dated 22.09.1995 passed by the Assistant Commissioner of Endowments, Ongole, Prakasam District, the 2nd respondent herein, appointing a Fit Person for the 1st respondent, on the assumption that it is a charitable institution. The appellants pleaded that an extent of Acs.2.52 cents of land was endowed subject to certain conditions, viz., that it would be available for public as long as tamarind trees thereon exist; and that they were entrusted with the duty to maintain it. According to them, the tamarind trees disappeared. It was stated that when suo moto proceedings were initiated by the Inams Deputy Tahasildar of the area, they have put forward their case, and taking the same into account, the Deputy Tahasildar held that the land does not belong to any charitable institution. It was their case in the plaint that over the period, they have purchased the shares of different persons and became absolute owners. Their plea was that the 2nd respondent does not have the jurisdiction to appoint a Fit Person, vis-à-vis a private property. The suit was contested by the 2nd respondent. He pleaded that the trial Court has no jurisdiction to entertain the suit, in view of the bar contained in Section 151 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short ‘the Act’). It was further pleaded that the second proviso to sub-section (3) of Section 2, would invalidate or extinguish any pattas or declarations of rights of ownership vis-à-vis the properties of a charitable institution or endowment. The trial Court decreed the suit, through judgment dated 29.03.2004. Aggrieved thereby, the 1st respondent filed A.S.No.12 of 2004 in the Court of Senior Civil Judge, Addanki. The appeal was allowed on 28.10.2009. Hence, this second appeal. Sri M.Venkata Narayana, learned counsel for the appellants, submits that the lower Appellate Court has taken an incorrect view as to the maintainability of the suit. He contends that as long as there was no alternative forum, in which the order appointment made by the 2nd respondent can be challenged, the jurisdiction of the civil Court remains intact. He further submits that even if the lower Appellate Court was of the view that the suit is not maintainable, it could have left the parties to work out their remedies before the proper forum, but expressed its opinion on merits, as regards the orders passed by the Inams Deputy Tahasildar, marked as Ex.A.1. Other contentions are also urged. Sri V.T.M.Prasad, learned Standing Counsel for the 1st respondent, on the other hand, submits that the trial Court proceeded on the assumption that there is no forum to challenge the order dated 22.09.1995 passed by the 2nd respondent and that on a close analysis, it has emerged that the actual dispute is as to whether the appellants have any rights over the property in question. According to the learned counsel, the appointment of a Fit Person is only a consequential step. The suit was filed by the appellants herein specifically challenging the order dated 22.09.1995 passed by the 2nd respondent, marked as Ex.B.2. A perusal of Ex.B.2 discloses that the 2nd respondent took the view that the land mentioned therein belongs to a charitable institution and that some persons including the appellants herein were trying to use it, to the exclusion of general public. Having said this, he proceeded to appoint a Fit Person. The suit was opposed on the grounds of maintainability as well as on merits. The trial Court framed the following issues for its consideration: i) “Whether the patta granted by M.R.O dated 31.12.1981 are true and valid? ii) Whether the trial Court has no jurisdiction to entertain the suit? iii) Whether the suit is not maintainable for non- joinder of necessary parties? Additional Issues i) Whether the suit schedule property is a charitable endowment in connection with a charitable institution? ii) Whether the appointment of first defendant as fit person is arbitrary, illegal and capricious and if so, whether the plaintiff is entitled for declaration as prayed for? iii) Whether the plaintiff is entitled for permanent injunction as prayed for?” On behalf of the appellants, PWs.1 to 3 were examined and Exs.A.1 to A.14 were filed. On behalf of respondents, DWs.1 and 2 were examined and Exs.B.1 and B.2 were filed. It is not in dispute that Section 151 of the Act bars the suits, in relation to the matter that arises under the Act. The trial Court took note of the same. However, it has taken the view that the bar does not operate, in view of the fact that no effective alternative remedy is provided for challenging the nature of orders that were passed by the 2nd respondent. It may be true that a Fit Person is appointed, in exercise of power under Section 29 of the Act and that Section 90 thereof does not take in its fold, the orders passed under Section 29 of the Act, for analyzing the remedy of appeal. The fact, however, remains that the appointment of a Fit Person takes place, only when the religious or charitable institution or any property held by it is taken to be, under the purview of the Act. The appointment of a fit person for administration of such properties is only a ministerial act. Unless the principal controversy, viz., whether the property belongs to a religious or charitable institution, or to a private individual, is resolved, the challenge to appointment of a Fit Person would be of no consequence. To decide the disputes pertaining to the claims relating to properties, the Act provides a perfect mechanism under Section 87 of the Act. Earlier the power to resolve such disputes was conferred upon the Deputy Commissioner of Endowments of the concerned area. In the recent past, an independent Tribunal is constituted for that very purpose under Section 162 of the Act. Therefore, the suit instituted by the appellants was barred by Section 151 of the Act. It is true that the lower Appellate Court ought not to have 1expressed its view on merits, once it took the view that the suit is barred. It is axiomatic that a Court, which finds that the proceedings before it, are not maintainable, it has to leave it to the parties to suit, to workout their remedies in accordance with law, and must desist from expressing views on merits. Therefore, the second appeal is partly allowed, setting aside the observations made by the lower Appellate Court upon the validity of Ex.A.1, but leaving it open to the appellants herein to work out their remedies in accordance with Section 87 of the Act. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J. Dated: 01.11.2011 L.R. copy to be marked. GJ