*THE HON’BLE SRI JUSTICE K.C.BHANU +CIVIL REVISION PETITION Nos. 5100, 5101 AND 5799 OF 2009. %07-04-2010 # The Trust Association of the Convention of the Baptist Churches Of the Northern Circars (CBCNC), rep. by its Chairman, TDS Kumar …Petitioner Vs. $ 1.Smt. J.Malini Tyagaraj others ….Respondents !Counsel for the Petitioner: Mr.D.Prakash Reddy for T.Narasimha Reddy in CRP 5100 of 2009 Mr.T.Niranjan Reddy, in CRP 5101 of 2009 Mr.N.Siva Reddy, in CRP 5799 of 2009 ^Counsel for the Respondents: Mr. D.V.Seetharama Murthy <Gist : >Head Note: ? Cases referred: 1.AIR 1975 AP 187 2.(2010) 1 SCC 689 3.AIR 1971 AP 380 4.1989 (1) LS 30 5.AIR 1987 Calcutta 194 6.AIR 1955 Madras 571 THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NOS.5100, 5101 AND 5799 OF 2009. DATED:7th APRIL, 2010. CRP NO.5100 OF 2009 Between: The Trust Association of the Convention of the Baptist Churches Of the Northern Circars (CBCNC), rep. by its Chairman, TDS Kumar … Petitioner/Plaintiff and 1.Smt. J.Malini Tyagaraj others …Respondents/Defendants. CRP NO.5101 OF 2009 Between: The Trust Association of the Convention of the Baptist Churches Of the Northern Circars (CBCNC), rep. by its Chairman, TDS Kumar … Petitioner/Plaintiff and 1.Dasari Samuel and others …Respondents/Defendants. CRP NO.5799 OF 2009 Between: Dasari Samuel … Petitioner/Defendant No.1 and 1. The Trust Association of the Convention of the Baptist Churches Of the Northern Circars (CBCNC), rep. by its Chairman, TDS Kumar and others …Respondents/Plaintiff and Defendants. THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NOS.5100, 5101 AND 5799 OF 2009. COMMON ORDER: These revisions under Article 227 of the Constitution of India, are directed against the common judgment, dated 19-10-2009, made in C.M.A.Nos.78 and 92 of 2007 on the file of the IV Additional District Judge, Visakhapatnam, in setting aside the order passed by the I Additional Senior Civil Judge, Visakhapatnam, dated 15-06-2007, made in I.A.No.556 of 2006 in O.S.No.454 of 2006, wherein the Receiver was appointed. 2. Petitioner herein is the plaintiff and the respondents herein are the defendants in the suit. 3. Brief facts, that are necessary for disposal of the present revisions may be stated as follows: The trust association of convention of Baptist Churches of the Northern Circars (hereinafter referred to as ‘Baptist Church’) filed the suit for perpetual injunction restraining the defendants, their men from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff association in any manner whatsoever including the alienation of the same and the defendants 14 to 27 from inducting third parties therein. Baptist Church is registered under the provisions of Societies Registration Act. The Baptist Church acquired movable and immovable properties in East Godavari, West Godavari, Visakhapatnam and Srikakulam Districts and in some other places. The plaintiff association was formed in the year 1960. As per byelaws, the Governing Body of the plaintiff is authorized to sue and be sued on behalf of the plaintiff association. The Governing body consists of Chairman, Secretary and Treasurer and all other members of the plaintiff association. TDS Kumar is the duly elected Secretary of the Baptist Church. The Baptist Church is paying taxes to the municipal corporation, Visakhapanam. After annual convention was held at Visakhapatnam on 14-01-1995 under the supervision of the Advocate Commissioner, no other convention was validly held and no valid election of the office bearers of Baptist Church took place until January, 2004. Later valid convention of all the members of Baptist Church was held under the supervision of the Advocate Commissioner appointed by the IV Additional District Judge, Visakhapatnam and in that election, TDS Kumar was elected as Chairman, K.Deva Sahayam as Secretary and Gompana John Peter as its Secretary. Defendants 2, 3 and others were proclaiming that they are the lawful office bearers of the Baptist Church and making unauthorized and illegal alienation of the properties of the Baptist Church by way of sale agreements, lease, etc. These rival groups also started filing cases in almost every court in the north Coastal Andhra Pradesh with false pleadings. One such suit is O.S. No.3 of 1994 on the file of the Principal Senior Civil Judge, Srikakulam, whereunder these unauthorized groups of people tried to legalize the unauthorized alienations made by them. But the said suit was dismissed after full trial. On appeal, the said dismissal of the suit was confirmed. In the suit filed by the plaintiff and another in O.S.No.98 of 1986 on the file of the Principal Senior Civil Judge, Kakinada, the sale transaction entered by one S.M.Kantha Raju was declared as not valid and binding on the plaintiff association. Therefore, S.M.Kantha Raju, Deniel Gandhi, defendants 2 and 3 and others have no right to claim office bearer ship of the Baptist Church or discharge any function as office bearers and as such, the transactions in the form of sale agreements, sale deed, memorandum of understanding etc., entered are illegal, void and unenforceable transactions as such they do not bind on the plaintiff in any manner. S.M.Kantha Raju, Deniel Gandhi, Marella Prasada Rao, P.Palus, in collusion with the defendants have created 22 sale deeds in respect of the suit schedule property during the year 1993 in a clandestine manner with an oblique motive of grabbing the suit property by ousting the plaintiff from possession and enjoyment of the suit schedule property. It was held by the competent Court that the said persons have no right to deal with the properties of the Baptist Church and the alienations made by them. Therefore, the sale deeds obtained by the defendants from these unauthorized persons are invalid and unenforceable and do not bind the plaintiff in any manner. This Court ordered that on intimation given by the Special Officer, Urban Land Ceiling, dated 28-02-1998, as an information as to the illegality of the 22 sale deeds wrongfully obtained and provided an opportunity to prefer an appeal against the said order, but no such appeal was preferred. Defendants 2 ,9 and 10 for the last few days have been making hectic efforts by dispossessing the plaintiff there from in a high handed and illegal manner. The plaintiff association through validly elected office bearers, TDS Kumar and G.John Peter have been managing all the properties of the Baptist Church. The trust also filed suit in O.S.No.189 of 2001 against the defendants 14 to 27 on the file of the Principal Senior Civil Judge, Visakhapatnam for eviction of the persons in occupation in a part of the suit schedule property and obtained interim orders. The Baptist Church also filed O..No.38 of 004 on the file of the IV Additional District Judge, Visakhapatnam, in respect of the western portion building of the suit schedule property and obtained injunction in their favour. When challenged in the High Court, the said order was dismissed confirming the lower Court order. The so called vendor of the defendants 9 and 10, S.M.Kantha Raju, claiming to be the President of the plaintiff association, also filed I.A.889 of 2001 in O.S.772 of 1996, claiming interest in item 2 of the suit schedule property and prayed for impleadment of the plaintiff association represented by him as President, as a party to the suit. After hearing both sides, the learned Judge dismissed the application, vide order, dated 16-10- 2003. The trust filed another suit in O.S.No.1263 of 2004 on the file this Court against defendants 9 and 10 besides 21 others in respect of the plaint schedule property excluding the built up portion in the occupation of the defendants 14 to 27 for permanent injunction restraining them from interfering n any manner whatsoever with the possession and enjoyment of the said property by the plaintiff. This Court after hearing both parties granted interim injunction pending disposal of the suit as per order in I.A.No.1580 of 2004, dated 06-05-2004. The said orders are in force. It is clear that the plaintiff through its legally elected office bearers, have right over the suit schedule property. The defendants who are from places outside Visakhapatnam, who enjoy strong political, police clout coupled with money and muscle power, have been trying to trespass into the plaint schedule property by dispossessing the plaintiff there from. Defendants 1 to 13 are wooing the defendants 14 to 27 to handover the vacant possession of the property in their occupation by offering substantial amounts to them so that the defendants 1 to 13 can trespass into the part of the suit property and then high handedly occupy the remaining portion of the suit schedule property. The plaintiff learnt that defendants 1 to 13 brought the mafia gangs from Mumbai with the help of some film producers who are reportedly planning to take over the suit schedule property with the active connivance of the defendants 14 to 27, in an illegal and unauthorized manner. It is also learnt that defendants 1 to 8 and 14 to 27 have also been planning to damage the structures and also demolish some portion of the building in occupation of the defendants 14 to 27, in order to facilitate third parties like the above mentioned film producers to convert the suit property into a commercial space and thus gain wrongfully, causing wrongful loss to the plaintiff association. Though the physical possession of the built up area, namely the portion of the bungalow/watchman quarter bearing Door No.10-1-6 is with the defendants 14 to 27, the constructive possession of the same lies with the plaintiff. In fact, defendants 14 to 7 were only under permissive possession of the plaintiff and therefore, have an obligation not only to quit the same as and when the plaintiff wants but also to preserve the property without causing any damage. It is learnt that the defendants 14 to 27 are making hectic efforts to handover physical possession of the property in their occupation to the defendants 1 to 8, in order to facilitate them to handover the same to a film producer who reportedly entered into an agreement of the sale with defendants 1 to 8. Further, defendants have been bringing unknown persons anti-social elements and also mafia gangs to the suit property and have been scrambling for possession of the suit property including the buildings therein. Even though there were interim injunctions in favour of the plaintiff association, on account of the illegal and high-handed acts, there is a scramble for possession of the suit property. That apart, there is a serious threat to the safety and security of the suit property at the hands of the defendants. The defendants 1 to 8 for the last few days, having been illegally raising the height of the boundary wall to serve as a cover their clandestine operations in the suit property, despite the strong protest by the plaintiff association. Under these circumstances, in order to effectively manage the suit schedule property and preserve the same from damaged or illegally alienated by the defendants 14 to 27 and interfered with by the defendants 1 to 13, it is just and proper for the Court to appoint an Advocate Receiver to take possession of the suit schedule property without disturbing the possession of the defendants 14 to 27 and supervise/manage the suit schedule property, prevent encroachments by third parties an alteration of physical features by the defendants and do all necessary things and act to safeguard the suit schedule property. 4. The 1st respondent filed counter denying the allegations in the affidavit filed in support of the petition. The allegations made in paras 3 and 4 of the petition in respect of the affairs of the society and right over the property are true. It is stated that the institution of suits are not binding on the first respondent as he is not a party to the said suits. The deponent of the affidavit and two others filed a petition to set aside the ex-parte order in I.A.2704 of 1996, but the same was dismissed on 29-01-1999 as such it is crystal clear that the deponent has no right to deal with the society and more particularly about the property. But suppressing the same the deponent has been indulging vexatious litigation. In fact there is no whisper about the suit in the affidavit and the plaint. A reply notice was issued to the present counsel of the petitioner in reply to the advertisement published by him on behalf of deponent in which number of civil suits, which were filed by the deponent which were dismissed were detailed out. The deponent is not competent to represent the association, more particularly when the respondent is the Chairman of the said association and as such the suit is not maintainable that too a mere suit for injunction without seeking for declaration. As per the plaint schedule, the extent of the property is 6500 sq. yards. In the plaint or in the petition, the petitioner failed to explain as to how he could be in possession of such an extent of property when the maximum limit is only 1500 sq. meters as per the provisions of Urban Land Ceiling Act. On 26-02-1998 the Special Officer and competent authority, ULC, Visakhapatnam in a C.C. after conducting enquiry, declared the institution is a surplus land holder to an extent of 1,6500 sq. meters in TS No.75. The order is to the effect that the society has right over 1,500 sq. meters of land only and the rest of the surplus land belongs to the Government. The result of the order of the Court in appointing a Receiver directing him to take possession of the property resulted in grave miscarriage of justice since what was taken possession of by the Official Receiver is Government land. In pursuance of the said proceedings, a declaration under Section 10 (3) of the Urban Land (Ceiling and Regulation) Act, 1976 (for short ‘ULC Act’) was also published in A.P. Gazette. This respondent along with committee of office bearers filed applications and letters before the competent authority and issued notice explaining the true state of affairs. If at all the deponent is the Chairman of the Society, what steps had he taken to protect the property of the Society. Actually, the respondents 14 to 27 who are inmates and who after recognizing the good services rendered by the office bearers of the society consisting of this respondent and others had vacated the property willfully and had also acknowledged the same in writing. This fact was suppressed by the petitioner. There are no merits in the petition. If at all the deponent is in possession of the land, he ought to have filed petition for temporary injunction, but filing a petition for appointment of Receiver shows that he is not having any possession over the said land. In respect of another property, which is known as Rockdale Bungalow, the deponent in collusion with two others created documents and passed over possession of the land to them and in that connection a legal notice was given. The deponent did not give any reply. Soon after the vacation of the inmates in the plaint schedule property, the respondent appointed Security Guards to the property because of the security guards the ulterior motive of the deponent to trespass into the property could not be successful. So, the deponent is using the court as medium of instrument who achieved his target of trespassing into the property by allowing the possession to be continued in the possession of the Advocate Commissioner. The future proceedings of the society by this respondent would be adversely affected. There are no grounds to justify the appointment of commissioner. The cost of the other property which was gifted to APCC by way of gift, since the donee had become non existent and the donee failed to achieve the object of the gift, the possession was taken over and civil suit in O.S.No.654 of 2004 was also instituted on the file of the Principal Senior Civil Judge, Visakhapatnam. The respondents and others are toiling hand to look after the property. In fact, after Receiver locked the property some of the henchmen of the deponent tried to wipe of the name of this respondent in the board that was fixed to the wall. Therefore, he prays to dismiss the petition. 5. Respondents 2 and 5 to 7 filed a memo adopting the counter filed by the 1st respondent. The 4th respondent filed separate counter supporting the claim of the petitioner and also sought appointment of Receiver to take possession of the suit schedule property and to manage the same till the rights are determined by the Court. 6. Respondents 9 and 10 filed counter denying all the material allegations made in the affidavit filed in support of the petition. According to them, the property originally belonged to Baptist Church an it was purchased by them and other 19 associated companies under 22 registered sale deeds in the year 1993 executed by S.M. Kantha Raju as President, P.Palus as Secretary of Baptist Church convention and one Prasada Rao as Secretary and C.John as Chairman of the Trust association. Since then, they have been in possession and enjoyment of the same. They are the power of attorney holders of the remaining 19 companies The present chairman TDS Kumar who filed the suit and petition styling himself as Chairman of the Trust Association of Baptist Church filed O.S.464 of 2006 against them and others for permanent injunction and other reliefs. He also filed a petition in I.A.553 of 2006 for appointment of Receiver. When urgent notice was ordered the said petition was not pressed on 31-03-2006. The said suit was filed on 29-03-2006. As it was not pressed it was dismissed giving permission to the plaintiff to file a fresh petition and again the present petition for appointment of Receiver was filed and the I Additional Senior Civil Judge, Visakhapatnam appointed ex-parte Receiver on 01-04-2006. The learned Senior Civil Judge heard and passed the order in the said application and the Court did not consider the very threat to the property for appointing Advocate Receiver in I.A.553 of 2006, but again on 01- 04-2006 the learned Senior Civil Judge took a very same threat as consideration and consequently appointed Advocate Receiver even without evicting any person in possession or custody of the plaint schedule property straight away authorized the receiver to take possession of the plaint schedule property without disturbing the possession of defendants 14 to 27. It is not clear from whom the receiver has to take possession. The orders in MC No.6/94 confirmed by the Hon’ble High Court would clearly indicate that the plaint schedule property was in custody of Asst., Tahsildar (Urban), Visakhapatnam. Hence, the plaintiff filed the present petition under Order 41 Rule 1 (A) (c) (d) r/w Section 151 CPC by omitting sub clause (B) with a mala fide intention and suppressed the details of the very same property being in the custody of the Assistant Tahsildar (Urban) Visakhapatnam. In the year 1994 David Raju and Krupa Rao claiming to be a group of Baptist Church and independently filed a petition under Section 482 of C.P.C. in Criminal Petition No.2429 of 1994 on the file of the High Court to quash the orders of the attachment in MC No.6 of 1994 and ultimately the petition was dismissed. The Special Leave Petition preferred by the Chairman of the petitioner association was also dismissed. In pursuance of the orders of the Special Divisional Magistrate in M.C.No.6 of 1994 the possession was also delivered to the defendants 1 to 10 who also employed security guards. Aggrieved by the final orders in M.C.No. 6 of 1994 P.S.David Raj filed Crl.R.C.No.975 of 1997 and also Crl.M.P.No.4878 of 1997 for interim stay. D. Krupa Rao also filed Crl. R.P.No.1008 of 1997 against the order in M.C.No. 6 of 1994 and also filed a petition for interim stay in Crl. M.P.No.975 of 1997. The Hon’ble High Court was pleased to direct the Commissioner of Police to inspect the premises and take steps and to maintain possession as on the date of orders of RDO, Visakhapatnam i.e., 08-10-1997 until further orders. The commissioner of police inspected the premises personally and directed the son of the 10th defendant and O.Sabestian, uncle of Dinakar Tyagaraj to vacate premises and the Commissioner of Police also prepared list. The Hon’ble High Court confirmed the possession of the defendants in respect of the said bungalow, which is plaint schedule property. John Peter having knowledge of this order filed O.S.163 of 2004 against these defendants and other 20 companies on the file of the I Additional Senior Civil Judge, Visakhapatnam for permanent injunction and obtained interim orders. TDS Kumar having had unsuccessful battle ought to have approached for recovery of the same and concealing all those facts, he filed the present suit. The suit is not maintainable since for the very self same reliefs O.S. 1263 of 2004 was already instituted wherein, the interim injunction already granted was made absolute. Petitioners 1 to 8 in W.P.No.25078 of 2001 submitted their application to the Special Officer and Competent Authority, ULC, Visakhapatnam to regularize the extent of sites in their favour covered by their sale deeds. TDS Kumar has no authority to represent the plaintiff and in fact S.M. Kantha Raju is the president of Baptist Church during the year 1992-93. The suit filed by D.Krupa Rao representing Baptist Church in O.S.137 of 1982 on the file of the Sub-Court, Visakhapatnam against S.M.Kantha Raju and others for permanent injunction and for other relies was dismissed. TDS Kumar and John Peter are the defendants 5 and 8 in O.S.57of 1985 on the file of the II Additional Senior Civil Judge, Visakhapatnam and the same was decreed. The suit filed by D.Krupa Rao, representing Baptist Church in O.S.127 of 1982 as Secretary in O.S. 137 of 1982 and O.S.356 of 1987 and also O.S.114 of 1985 on the file of the I Additional Senior Judge, Visakhapatnam, against S.M. Kantha Raju and others were also dismissed. Thus the plaintiff association has no locus- standi at all and therefore, they sought for dismissal of the petition. 7. The 14th respondent filed counter denying the averments in the affidavit filed in support of the petition and stated that he had vacated the property and handed over the same to D.Samuel, the Chairman of the petitioner society and he is unnecessarily added as party to the proceedings. 8. Respondents 15 to 26 filed their counters on the same and similar lines as that of the counter filed by the 14th respondent. 9. No oral evidence was adduced on either side, except marking Exs.A1 to A14 on behalf of the petitioner-plaintiff and Exs.B1 to B15 on behalf of the 1st respondent-1st defendant. 10. The trial Court by order, dated 15-06-2007, appointed Receiver to manage the suit schedule property. Challenging the said order of the trial Court, the 1st respondent herein filed CMA 78 of 2007, whereas respondents 9 and 10 filed CMA 92 of 2007. The 1st appellate Court after considering the material on record, set aside the order of appointment of Receiver and consequently I.A. filed by the Baptist Church was dismissed. Hence, these revisions. 11. Now the point for determination is whether the findings of the 1st appellate Court are perverse or there is error of law apparent on the face of the record. 12. Mr.D.Prakash Reddy, learned senior counsel appearing for the petitioner herein (plaintiff) contended that S.M.Kantha Raju and others who executed a sale deeds in favour of some of the defendants are not duly elected office bearers of the Baptist Church and therefore, the defendants who purchased the suit schedule property through various sale deeds are not valid in law, that the suit filed by S.M.Kantha Raju and some others on the file of the Principal Senior Civil Judge, Srikakulam to legalize the unauthorized alienations was dismissed, that on appeal the trial Court judgment was confirmed, that the petitioner and others filed suit in O.S.No.98 of 2006 on the file of the Principal Senior Civil Judge, Kakinada whereunder the sale transactions