IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD SATURDAY, THE THIRTIETH DAY OF APRIL TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.C.C.A.Nos.38 of 1989 and 95 of 1995 C.C.C.A.No.38 of 1989 Between: Lona Butt and others .. Appellants AND Endowments Department, Government of Andhra Pradesh .. Respondent C.C.C.A.No.95 of 1995 Between: Lona Butt and others .. Appellants AND Endowments Department, Government of Andhra Pradesh and others .. Respondent COMMON JUDGMENT: CCCA.No.38 of 1989 is directed against the decree and common judgment in O.S.No.332 of 1982, while CCCA.No.95 of 1995 is directed against the decree and common judgment in O.S.No.488 of 1983 dated 31-10-1988 rendered by the Additional Chief Judge-cum-II Additional Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad. Both the appeals were filed in forma pauperis and it should be incidentally noted that as per the order of this Court dated 04- 02-1993, C.M.P.No.3819 of 1989 filed by the appellant for permission to sue in forma pauperis was dismissed for default against the 3rd respondent/3rd defendant Trust. Subsequently, C.C.C.A.No.95 of 1995 was taken on file after C.M.P.No.3819 of 1989 was ordered by this Court on 27-04-1995, but no order has been passed by this Court insofar as the status of the appeal concerning 3rd respondent- 3rd defendant at the time of taking the appeal on file or subsequently up to date. The parties are referred to herein as they are arrayed before the trial Court. O.S.No.488 of 1983 (O.S.No.336 of 1981) was filed by the plaintiff for a declaration of absolute ownership of the property bearing No.4-1-829 and specified sub numbers of the said number and the open place where a petrol pump and shop are located at Jawaharlal Nehru Road, Hyderabad and also for possession of the property by dispossessing the defendants from the suit property except four rooms under the possession of the plaintiff and for costs. The plaintiff claimed that George Tenducey was the absolute owner and possessor of the property, who died leaving behind him four daughters and two sons, the plaintiff being the daughter of Helen Tenducey, one of the daughters. The plaintiff pleaded that her mother died in the year 1937 leaving behind her as sole legal heir by which time, only her maternal aunt Emily Tenducey was the surviving legal heir of George Tenducey. The entire property, therefore, was claimed by the plaintiff to have devolved on her and Emily Tenducey in equal shares, more so, as Helen Tenducey and Emily Tenducey were in joint possession of the suit property till the death of Helen Tenducey. The plaintiff averred that Emily Tenducey died in 1949 on which her interest in the property devolved on her husband Charles Cornelius, who was in joint possession and enjoyment of the suit property along with the plaintiff till his death in 1963. The plaintiff claimed to have become the absolute owner and possessor of the property since then till the end of June, 1968, only when she came to know about the creation of a Trust in the name of Emily Cornelius by Charles Cornelius under a Trust deed dated 11-9-1951. The 2nd defendant took possession of the suit property leaving aside four rooms in the possession of the plaintiff after the death of Charles Cornelius and the plaintiff immediately approached the 2nd defendant for release of the suit property in her favour, which proceedings were pending by the time of the suit. The plaintiff contended that she was unaware of any Will executed by Emily Cornelius in 1930 or the Trust deed by Charles Cornelius, which, even if true, are null and void. The plaintiff claimed that she came to know that the 3rd defendant-Trust under the management of defendants 1 and 2, the State Government and the Endowments Department was desirous of transferring the property to the 4th defendant. Therefore, the plaintiff claimed to have given a notice under Section 80 of the Code of Civil Procedure to defendants 1 and 2 and to have filed the suit for necessary reliefs. The defendants 1 and 2 resisted the suit contending that Emily Cornelius bequeathed all her movable and immovable properties absolutely to Charles Cornelius, who created a Trust in her name with all such bequeathed properties under the Trust deed dated 11-09-1951. The Endowments Department was claimed to have constituted a Trust Board under A.P. Act 17 of 1966 and the trustees are in possession and enjoyment of the entire suit property since 1951. Defendants 1 and 2 put the plaintiff to strict proof of all the allegations to the contrary and claimed that the Trust Board or the Trustees or the persons, who are necessary parties to the suit, were not impleaded. Defendants 1 and 2 also contended that the suit without the permission of the Advocate General was incompetent and further claimed that in the absence of any challenge to the registered Trust deed of 1951, the plaintiff is not entitled to any possession. The suit was contended to be barred by limitation and the suit was further claimed to be premature in view of the pendency of the proceedings under the Endowment Act before the Deputy Commissioner. Hence, they desired the suit to be dismissed with exemplary costs. The 3rd defendant, who was impleaded during pendency of the suit, contested the suit claiming that by 08-12-1982 when the 3rd defendant was impleaded, the suit was barred by limitation against him. The 3rd defendant contended that the Will by Emily Cornelius on 25-03-1930 followed by the Trust deed dated 11-09- 1951 by Charles Cornelius made the claim of the plaintiff about the absolute ownership, possession and enjoyment over the suit property false and when the plaintiff failed in her statutory remedies before the Endowments officials, the civil Court has no jurisdiction to entertain the suit in the present form. The 3rd defendant also contended that the plaintiff is estopped from questioning the Trust deed and the order in O.A.No.49 of 1974 dismissing the plaintiff’s application under Section 77 of Act 17 of 1966 and the further order in O.A.No.93 of 1978 dated 14-10-1981 holding the property to be belonging to the 3rd defendant preclude the plaintiff from making any contrary claims. The suit filed during the pendency of the suit O.A.No.93 of 1978 was contended to be untenable and the suit was also claimed to have become infructuous and liable to be dismissed. Hence, the 3rd defendant sought for dismissal of the suit with costs. The 4th defendant resisted the suit contending that it was created under a Government Order and it purchased a portion of the suit property from the 3rd defendant for Rs.10,00,000/- to commemorate the memory of late Smt. Sarojini Devi Naidu, who was born in the property acquired. When there was no prayer to set aside the sale in favour of the 4th defendant, the interest of the 4th defendant, who is the bona fide purchaser for valuable consideration without any notice of defect in title, cannot be defeated. The 4th defendant otherwise supported the claims of the 3rd defendant and desired that the suit be dismissed. It should be noted that the defendants 3 and 4 were impleaded as per the orders in I.A.No.311 of 1992 dated 8-12- 1982, while the suit was originally filed only against the State and its Endowments Department. O.S.No.332 of 1982 was filed by the plaintiff to set aside the order dated 4-10-1981 in O.A.No.93 of 1978 passed by the Deputy Commissioner, Endowments, impleading the Endowments Department as the sole defendant. The pleadings of the plaintiff and the defendant in this suit are identical to those of the plaintiff and the 2nd defendant in O.S.No.488 of 1983. The following issues were settled for trial in both the suits respectively as follows:- O.S.No.488 of 1983: 1) Whether the plaintiff is related to the original owner and whether the genealogical tree is correct? 2) Whether the plaintiff is herited (inherited) after the death of the mother to half of the suit property and is in joint possession with her aunt and is entitled for declaration of title and possession of suit property? 3) Whether the suit is barred by limitation as defendants acquired title by adverse possession since 1951 and plaintiff is not in possession within 12 years prior to filing the suit? 4) Whether the suit, as framed, is not maintainable and is to be dismissed limine (in limini)? 5) Whether this suit is not maintainable as it is filed during pendency of case No.O.A.93 of 1978 before Commissioner, Charitable & Hindu Religious Endowment Department U/S.77 of the Act? 6) To what relief? O.S.No.332 of 1982 1) Whether the plaintiff is not bound by order of the Dy. Commissioner, Endowments dated 14-10-1981 in O.A.No.93/78? 2) Whether the order of the Dy. Commissioner Endowments dated 14-10-1981 is fit to be set aside as claimed by the plaint? 3) Whether the plaintiff has inherited half of the suit property and was in joint possession as co-owner along with her aunt Smt. Emily Cornelius since the year 1937? 4) Whether the Trust deed dated 11-09-1951 is null and void? 5) What is the effect of dismissal of O.A.No.49 of 1974 whether the suit is not maintainable? 6) Whether the suit is within limitation? 7) To what relief? Both the suits were clubbed and tried together on a joint memo filed by the parties on 14-06-1984 and the evidence was recorded in the comprehensive suit in O.S.No.488 of 1983. During trial, PWs.1 to 4 and DWs.1 to 15 were examined and Exs.A.1 to A.34, B.1 to B.56 and X.1 to X.3 were marked. The trial Court rendered the impugned common judgment in both the suits, and after extracting the pleadings and issues and the contents of oral and documentary evidence in brief, the trial Court noted that one George Tenducy was the original owner of the suit schedule property and some other properties and he had four daughters and two sons. While he died in 1896, his wife died in 1912 and by that time only three daughters and one son were alive. Helen, one of the daughters, died in 1937, while her sister Emily died in 1949. Their husbands, who are brothers and the father of the plaintiff, who is the daughter of Helen, also died prior to 1937. The plaintiff, who claimed to be entitled to half share in the property, while Emily was claimed to be entitled to the other half share, alleged the registered Trust deed executed by Charles Cornelius on 11-09-1951 to be null and void and to have become known to her only in June 1968. Consequently, the plaintiff contended the 3rd defendant-Trust to be incompetent to alienate the suit schedule property in favour of the 4th defendant-Trust. The defence was about a partition between the three daughters and one son, who were alive in 1912 in which the suit schedule property was claimed to have fallen to the share of Emily Cornelius, while Helen was allotted a share in another house, which was sold away by the plaintiff to Hyderabad Bank and another. The defence version is further that Emily Cornelius executed a Will in 1930 bequeathing the suit schedule property to her husband, who became the absolute owner on her death in 1937 and who created the Trust by the registered Trust Deed dated 11- 09-1951. It was further claimed in the defence that Charles Cornelius himself acted as Chairman since 1963 till his death and thereafter the Endowments Department took over the management in 1966 and appointed an Executive Officer. It was further pleaded that the plaintiff was allowed to live in the suit property without rent for her life by virtue of a resolution of the Trustees of the 3rd defendant, which Trust was registered in the register of Endowments in 1972. It is also contended in defence that to commemorate the memory of late Smt. Sarojini Devi Naidu, the 4th defendant-Trust was formed by the State, which purchased a portion of the suit house from the 3rd defendant as Smt. Sarojini Devi Naidu was born in that house. After noting the contentions of both parties, the trial Court observed that the relationship of the plaintiff with George Tenducy is not in dispute. While George Tenducy died on 04-06-1896, his wife Eva Tenducy died on 26-05-1912. The trial Court also noted that DW.11 is the son of Victoria, one of the sisters, while George, son of George Tenducey died as bachelor in 1891. One daughter of George, Mary died as spinster in 1912, the other son Dr. Charles also died in 1923. The trial Court deduced from the evidence that the evidence of DW.11, the first son of the plaintiff, shows that George Tenducy was having some more properties besides the suit property and that Ex.B.28-Partition deed and Ex.B.29-plans attached to the Partition deed clearly establish the suit schedule property to have fallen exclusively to the share of Emily Cornelius. The partition under a registered deed in 1321 Fasli exclude the plaintiff and her mother from claiming any share in House No.1458 belonging to Emily, while Helen got a house number 1455. The trial Court accepted the evidence of DW.11 and Exs.B.28 and B.29 as establishing that the plaintiff had no right in the suit property and considered that Exs.B.30 to B.36 extracts of the house tax demand register of Municipal Corporation, Hyderabad, correlateed to old house numbers probablise that the suit house fell to the share of Emily in 1912 partition. The trial Court further observed that Ex.B.32 extract of the house tax demand register probablised that after the death of Helen, the plaintiff sold away the house of Helen to Hyderabad Bank Limited and another. As such, the trial Court presumed the suit claim to be motivated to have wrongful gain. The registration extract of the Trust deed, Ex.B.3, by Charles Cornelius corroborated by the original register containing the copies of documents-Ex.X.1 were also accepted as showing the absence of any right to the plaintiff in the suit house. The competence of Emily Cornelius to execute the Will and the competence of Charles Cornelius to execute the Trust deed were upheld by the trial Court and even otherwise the trial Court noted that the admissions of PW.1, the plaintiff, about the relationship of DW.1 as the son of another sister of Victoria and the grandson of Charles, S/o George Tenducy belie the claim of the plaintiff about the exclusive ownership of the suit property on the death of Charles Cornelius. The trial Court also observed that when Helen and Emily were living in the suit house and when the plaintiff was also living in the same house even after the death of her mother till the death of Charles, she could not have been unaware of the Trust Deed executed in 1951. The trial Court refused to believe that the plaintiff was never informed by Charles about the execution of Trust Deed and from the resolutions/Exs.B.11 to B.27 passed by the Trust, the trial Court presumed the meetings of the Trust Board to have been held in the suit property under the Chairmanship of Charles Cornelius, which could not have been unknown to the plaintiff living in the same house. DW.11 was considered corroborated by DW.10, one of the trustees, about the knowledge of the plaintiff about the Trust Board meetings and consequently, the trial Court concluded that she had knowledge of the execution of the Trust deed and the creation and functioning of the trust. The trial Court also noted that the evidence of PW.4, who died before his cross-examination could be completed, itself was about the functioning of the Trust after the property was endowed. The trial Court refused to accept the further claim of PW.4 about revocation of the Trust under Ex.X.3- Revocation deed with reference to the conduct of Charles during his life time and also the removal of PW.4 from the Honourary Secretaryship of the Trust. The trial Court referred to the resolutions in the minutes of the Trust Ex.B.11 and B.12, which permitted Charles to discharge the debts incurred for carrying out the objects of the Trust and therefore, considered sale of some property by Charles for the purpose to be no way probablising the revocation of the Trust Deed. The trial Court also referred to the absence of any pleading by the plaintiff concerning revocation of Trust deed to refuse to consider any such plea and further referred to the circumstance that in O.A.No.93 of 1978 also, the plaintiff never stated before the Deputy Commissioner about such revocation. The silence of PW.1 on this aspect was also referred to and while thus refusing to recognize and act upon Ex.X.3, the trial Court also relied on the non-registration of document to ignore the same. The trial Court further referred to Charles not reserving any right to revoke the Trust expressly or impliedly under the original Trust Deed and the absence of any evidence to show any consent from the beneficiaries of the trust for such revocation. The trial Court considered that the question whether the administration of the Trust created by a Christian can be taken over by the Religious Endowments Department to be beyond the scope of the suit and it concluded the plaintiff to have had no right to the suit property or to have any delivery of possession except that she would be entitled to remain in possession of a portion of the suit property in terms of Ex.B.26 resolution of the Board of Trustees. The trial Court refused to consider any question of adverse possession as the defendants were claiming title itself under the Trust deed and while refusing to consider the suit to be barred by limitation under Article 65 of the Limitation Act, the trial Court also concluded that the order in O.A.No.93 of 1978 is valid and binding on the plaintiff. As O.S.No.488 of 1983 was much wider in scope and comprehensive, the trial Court considered any pendency of O.A.No.93 of 1978 by the time of filing of the suit to be not in any manner against the maintainability of the suit. It is also noted that as O.A.No.49 of 1974 was dismissed for default and not on merits and as any bar to any further relief to the plaintiff due to the same was not pleaded in O.A.No.93 of 1978 the same is not a bar to the present suit. Ultimately, the trial Court in view of its factual conclusions, dismissed both the suits with costs. The plaintiff challenged the said common judgment in these two appeals contending that the trial Court was erroneous in all its conclusions against the evidence on record, which ought not have ignored the revocation of the Trust by the setlor during his life and should not have given much weight to the alleged partition. The Will by Emily was not before the Court and the object of the alleged Trust was never fulfilled. The Minority Institution could not have been managed by the Endowments Department in violation of Article 36 of the Constitution of India. The plaintiff also contended that the order of the Deputy Commissioner was equally erroneous and hence, desired both the appeals to be allowed and the common judgment and consequential decrees to be reversed. The original appellant/plaintiff died during the pendency of the appeal and her seven legal representatives were brought on record as appellants. Similarly, the 3rd defendant in O.S.No.488 of 1983/ the Trust was impleaded as the 2nd respondent in C.C.C.A.No.38 of 1989 as per the orders of this Court in C.M.P.No.16673 of 1989 dated 13-11-1989. Sri Vedula Venkata Ramana, learned senior counsel for the appellants, extensively referring to the pleadings and evidence on record, contended that the house number of the suit property as referred to by the defendants in various documents did not tally making the identification of the property covered by such documents as the suit property not in tune with the contents of the documents. Apart from the absence of such correlation of the house number, the learned senior counsel also referred to the absence of any pleading from any of the defendants about any partition under Exs.B.28 and B.29 between any of the children of George Tenducy, due to which, any amount of evidence produced could not have been looked into by the trial Court. The learned Senior Counsel further contended that the identity of the properties covered by Ex.B.28 was also not established and DW.11, who was born only sometime in 1920, could not have been a competent and reliable witness to corroborate such claims. Why Emily allegedly executed a Will in favour of her husband 19 years before her death was strange and inexplicable and Exs.B.28 and B.29 were not proved by any evidence to have been acted upon. The learned Senior Counsel further contended that the alienations effected by Charles during his life time after the creation of Trust like Ex.B.43 do not suggest the object of the Trust being pursued or achieved and the positive evidence adduced on behalf of the plaintiff including the admitted relationship of the plaintiff with George Tenducey should have led to the declaration of her title and recovery of possession of the suit property, while reversing the orders of the Deputy Commissioner, Endowments to the contrary. Sri Y. N. Vivekananda, learned counsel representing Sri Y.N. Lohitha, learned counsel for the 3rd defendant-Trust, defended the impugned common judgment contending that the claim of the plaintiff that she was the only legal heir that became entitled exclusively to the entire suit property was belied by her own admissions about the successors to George Tenducy and his children surviving during different periods. The learned counsel also pointed out that the very manner in which the plaintiff was claimed to be living in the same house with her mother earlier and with Emily and Charles later will improbablise any absence of knowledge for the plaintiff about the execution of the Will by Emily and the Trust Deed by Charles. The learned counsel strenuously contended that the 3rd defendant-Trust is not in possession and enjoyment of the suit property being in the shoes of a co-sharer and having been in possession in its own right in pursuance of the registered Trust Deed, with the Endowments Department managing the property at least since 1966, the Trust must be construed to have perfected its title to the property by adverse possession. The learned counsel pleaded that the possession of the 3rd defendant-Trust cannot be anything except adverse to the plaintiff to her knowledge, more so, in view of the admitted continuance in possession of a portion of the property by the plaintiff under a resolution passed by a Trust. The learned counsel, therefore, contended the suit in O.S.No.488 of 1983 to be barred by time. He contended that while that suit should fail in fact and law, O.S.No.332 of 1982 should also fail as a consequence and there was absolutely no reason to interfere with the common judgment and consequently, dismiss the suit. Smt. A. Lalitha Gayatri, learned Assistant Government Pleader, representing the learned Government Pleader for Appeals, also reiterated the sustainability of the impugned judgment and decrees on the same lines as the learned counsel for the 3rd defendant-Trust Board. Sri Vedula Venkata Ramana, learned Senior Counsel, relied o n Ram Sarup Gupta (dead) by L.Rs v. Bishun Narain Inter College and others[1] for the principle that no amount of evidence can be admitted and considered in the absence of a pleading; and in State of Bihar and others v. Sri Radha Krishna Singh and others[2] for the principle that any pleading or document in an earlier proceeding cannot be considered as proof of any statements made in such pleading or proceeding in a subsequent judicial proceedings; and in Karnataka Board of Wakf v. Government of India[3] to illuminate under what circumstances any plea of adverse possession can be considered and upheld. With the