THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.992 of 2005 JUDGMENT: This second appeal is filed against the judgment and decree dated 12.02.2004 passed by the Court of Additional Senior Civil Judge (FTC), Gudivada, in A.S.No.46 of 1999 confirming the judgment and decree dated 30.09.1999 in O.S.No.74 of 1991 passed by the Court of Principal Junior Civil Judge, Gudivada. The appellants filed the suit for the relief of perpetual injunction in respect of Acs.8.80 cents of land in Survey No.33 of Kondiparru Village of Pamarru Mandal of Krishna District. The appellants claim to be the decedents of one Pujari Mallanna, who is said to have been granted the land way back in the year 1866, as archaka in first respondent - Sri Malleswaraswamy Vari Temple of that village. It was pleaded that Mallanna was exercising absolute rights of ownership over the land even while functioning as pujari. After the death of Mallanna, his son-Sambaiah is said to have succeeded to the land in the year 1902 and after Sambaiah his sons are said to have succeeded to him in the year 1932. There were some disputes as to the rights of the ancestors of the appellants vis-à-vis the said land. They filed O.S.No.235 of 1934 in the Court of District Munsiff, Gudivada, against the President, Hindu Religious Endowment, Board of Commissioners and another for the relief of declaration to the effect that the plaint schedule property was not endowed to the first respondent temple. The suit was dismissed by the trial Court. Thereupon, the plaintiffs therein filed A.S.No.208 of 1936 before the Court of District Judge, Krishna at Machilipatnam, which was later transferred to the Sub Court, Machilipatnam, and renumbered as A.S.No.10 of 1937 and the same was allowed. The President, Hindu Religious Endowment Board, Madras filed S.A.No.714 of 1938 in the Madras High Court. The second appeal was partly allowed modifying the decree passed by the lower appellate Court directing that the plaintiffs i.e., ancestors of the appellants herein shall be entitled to enjoy the land, subject to their rendering customary service in the first respondent temple and that the levy of contribution on the land is untenable. The appellants herein plead that though they have been rendering services to the temple, the respondents are interfering with their possession over the land. It is stated that a Trust Board was constituted from time to time and the Members of the Board are not permitting the appellants to enjoy the rights over the land. On behalf of the respondents, a written statement was filed. It was stated that though some of the appellants were functioning as archakas in the initial stage, all of them have ceased to be so and they are either employed in different organisation or working as archakas in the Temples in different villages. Other grounds, on the basis of the provisions of A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 were also pleaded. The trial Court dismissed the suit through order dated 30.09.2009. A.S.No.46 of 1999 filed by the appellants was also dismissed. Hence, this second appeal. Sri Tholeti Krishna Mohana Rao, fourth appellant herein argued the matter by appearing in person. He stated that he has been authorised by other appellants to advance arguments, in the Second Appeal. On behalf of the respondents, Sri C.Raghu, learned counsel appeared and he argued the matter at length. The suit was filed for the relief of injunction simplicitor. Initially, the trial Court framed one issue for its consideration, namely, whether the plaintiffs are entitled to permanent injunction. Thereafter, the following additional issues were framed: (1) Whether the plaint schedule land is marked by the plaintiffs? (2) Whether the condition relates obligation in the relinquishment deed executed by China Seshaiah is not valid and not binding on the plaintiffs? (3) What is the effect of the decision in S.A.No.714/38 of High Court of Madras? (4) Whether the plaintiffs are in possession of the plaint schedule land in their own right by the date of the suit; (5) Whether the Court has jurisdiction over the dispute. On behalf of the appellants, P.Ws.1 to 13 were examined and Exs.A.1 to A.65 were filed. On behalf of the respondents, D.Ws.1 to 3 were examined and Exs.B.1 to B.5 were filed. The documents marked as Exs.X.1 to X.3 were also taken on record. The suit was decreed and in appeal, the lower appellate Court framed the following points: (1) Whether the judgment and decree of the lower Court is sustainable according to law? (2) Whether there are any valid grounds in the appeal? The appeal was dismissed. The litigation in respect of the land started way back in the year 1934, with the institution of O.S.No.235 of 1934 by the ancestors of the appellants. That suit was filed for the comprehensive relief of declaration of rights. The suit was dismissed and the appeal preferred against it was allowed. In S.A.No.714 of 1938, the Madras High Court modified the decree passed by the lower appellate Court to the following effect: “In the result, therefore, I allow the appeal and modify the decree passed by the lower appellant court. There will be a declaration that the plaintiffs are entitled to the suit land subject to their obligation, to render the customary service in the Malleswara Swamy Vari Temple of Kondiparru and the contribution levied by the 1st defendant on the basis of that the land is an Endowment of the suit temple illegal and there will be a decree that the 1st defendant do repay Rs.65/- to the plaintiffs. The order of the lower appellate court regarding costs will stand and this court each party will bear his own costs.” From this, it becomes clear that the appellants or their ancestors are entitled to exercise the rights vis-à-vis the land, subject to their discharge of obligations to render the customary services in the first respondent temple. The respondents categorically stated that the appellants are not rendering services and in that view of the matter they are not entitled to exercise rights over the land. The record discloses that by the time the suit was filed, the appellants are not in possession of the land. In that view of the matter, very institution of the suit for the relief of injunction simplicitor becomes untenable. If the appellants are so advised, they have to institute proceedings for establishing their rights over the land and to seek recovery of possession. Two options are open. The first is to institute proceedings before the Endowments Tribunal, which is conferred with the jurisdiction to decide the nature and character of properties held by Hindu religious institutions. The second is to file an independent suit for declaration of title and for consequential reliefs. It is for the appellants to choose the forum. As the things stand now, this Court does not find any basis, or substantial question of law warranting interference with the concurrent findings recorded by the trial Court and the lower appellate Court. This much, however, can be said that in the event of any proceedings being instituted for declaration of title, none of the observations made in these proceedings shall be treated as final, as regards the rights of the parties, except the question of possession. The Second Appeal is accordingly dismissed. There shall be no order as to costs. ___________________________ L. NARASIMHA REDDY, J Date: 29.12.2011 va