HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION Nos.5099 of 2016
05-01-2017
S.Anjana Reddy Petitioner
Palvoi Ranga Reddy and 3 others .Respondents
Counsel for the petitioners:Sri D.Sudarshan Reddy
Counsel for the respondents:Smt. Annapurna Sri Ram
<GIST:
>HEAD NOTE:
? Cases referred
1. 2009 (2) ALT 431 (DB)=(2) ALD 356
2. 2010 (6) ALD 207
3. 1987 (1) ALT 18 (DB)
4. AIR 1969 SC 78
5. AIR 1975 SC 2238
6. AIR 1967 SC 436
7. 2010 (14) SCC 588
8. AIR 2010 SC 2897
9. 2012 (3) ALD 411
10. 2012 (2) ALT 294
11. 2009 (12) SCC 613
12. 2009 (12) SCC 544
13. 2012 (7) SCJ 487
14. 2009 (2) ALD 124
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION Nos.5099, 5098, 5087 &
5130 of 2016
COMMON ORDER:
These 4 revision petitions since involving common question
of law are taken up at request for common adjudication.
2. Coming to the facts, the Executive Officer of Bansuriwala
Krishna Mandir, Saidabad, Hyderabad, shown as adopted temple
to Sri Hanuman Temple, Karmanghat, Hyderabad, as 1st defendant
and with name as S.Anjana Reddy S/o. Dasi Reddy being the
Executive Officer also in the individual capacity as 2nd defendant in
whatever manner supra impleaded in O.S.No.976 of 2014
(originally as O.S.No.1833 of 2013) that is maintained by the 3
plaintiffs against him individually and in the capacity of Executive
Officer and by showing another defendant by name Sudarsan
Yadav, in the capacity of Ex-chairman of Karmanghat Hanuman
Temple.
3. They maintained the suit for the relief permanent
injunction restraining the defendants and any others claiming
through or acted under them from changing nature of suit
schedule property by way of alienation or raising structures
therein which consists of open house bearing No.17-1-382/H/11
admeasuring 320 square yards in S.No.110 in Hanuman Nagar,
Balaji Nagar new of Saidabad Village and Mandal of Hyderabad
District within the boundaries described with the claim of they
purchased the property from Smt. N.Andalu W/o. Sudhakar Reddy
under registered sale deed No.286, dated 24.10.2004 who
purchased from Dr. Niranjan Prasad the owner. It is the further
claim of illegal interference followed by forceful dispossession of the
3 plaintiffs from the suit schedule property supra by the
defendants supra on 20.07.2013 and demolished all of a sudden
the boundary wall, the structure and started leveling of houses
through debris by changing nature of the property without notice
or right or title over the property.
4. Coming to O.S.No.6 of 2014 the 3 plaintiffs maintained
the same against defendant Nos.1 and 2 and three more
defendants no other than Assistant Commissioner for
Endowments, R.R. District, Retired Assistant Commissioner by
name Sri K.Raghunanda Rao of R.R. District and Commissioner of
Endowments, Boggulakunta, Hyderabad, for damages of
Rs.18,00,000/- with interest from date of suit till realization on the
claim that plaintiff No.1 is absolute owner of plot Nos.18 & 25
admeasuring 519 square yards of Balaji Nagar, Saidabad, with
rooms and compound wall and plaintiff No.2 is absolute owner of
plot No.17 admeasuring 205 square yards of Balaji Nagar
(Hanuman Nagar) Hyderabad with 5 rooms and got by registered
settlement No.2149 dated 22.06.2004 and original plaintiff No.3 is
the owner of plot No.17 and one room in plot No.19 measuring 150
square yards of Balaji Nagar, Saidabad, by registered gift deed
No.2146 dated 22.06.2004 and they purchased the property which
is part of S.No.110 of Saidabad from the owner Dr. Niranjan
Prasad. The suit claim further is that the defendants demolished
compound wall, ground floor with 6 rooms and took away valuable
material and the demolition was done on 01.05.2013 by violation
of status quo orders in I.A.No.245 of 2013 in O.S.No.944 of 2013
suit for bare injunction and they got cause of action towards the
defendants for the suit reliefs including for physical and mental
torture, loss of good will and prestige and damages for demolition
of the rooms and they also filed W.P.No.21780 of 2013 challenging
the demolition and the High Court observed for entitlement of
damages to seek and therefrom also they got cause of action.
5. The suit O.S.No.687 of 2013 is filed by sole plaintiff
Mekala Prabhakar Reddy, for the relief of delivery of possession of
the plaint schedule in favour of plaintiff and for permanent
injunction restraining the two defendants of the temple supra from
interfering with plaint schedule and costs with averments of
plaintiff is owner of plot No.3 measuring 178 square yards in
S.No.110 pursuant to sale agreement dated 12.04.2000 from
S. Jeetu Prasad who purchased under registered sale deed dated
08.09.1996 from Dr. Niranjan Prasad the owner. The further
averments in the plaint are that the defendants all of a sudden on
20.07.2013 came with 4 JCBs with antisocial elements and
demolished boundary wall and also structures in some properties
and leveled 6 to 7 plots under threat which the plaintiff and others
could not resist and as per muntaqab of the year 1950 temple is
granted inam in S.No.78 of Karmanghat and not S.No.110
Saidabad and notice even sent to the defendants by the colony
president before filing of the suit in cause of action and hence
entitled to relief.
6. The sole plaintiff filed the suit in O.S.No.688 of 2013 for
possession of the plaint schedule property consisting of plot No.4
admeasuring 173 square yards of S.No.110 of Balaji Nagar,
Saidabad village and claiming title under gift deed dated
03.08.2013 in favour of plaintiff with the boundaries described
with claim of Dr. Niranjan Prasad the owner of Ac.1-20 guntas sold
to various people by forming layout including to one Jeetu Prasad
from whom Smt. Muthyala Suvarna purchased and executed gift
deed dated 28.07.2007 to his sister who in turn executed gift deed
dated 03.08.2013 in favour of the plaintiff. The other averments
are like in the pleadings of the other plaints referred supra that on
20.07.2013 the defendants came with JCBs leveled some plots by
demolishing wall etc and taken possession and hence plaintiff is
entitled to the reliefs.
7. It is with claim of all plaintiffs common in all the suits
that an inam was given 80 years ago to one Sri Bhagawan Das
Pujari by the then Hyderabad Nizam to an extent of Ac.2-35 guntas
and said Bhagwan Das sold away the same to Sri Jagannath
Prasad Shukla 60 years ago and after death of said J.P. Shukla his
only son Dr. Niranjan Prasad having succeeded the property and
executed General Power of Attorney (for short GPA) in favour of
one L.Sashank Reddy for Ac.1-20 guntas out of S.No.110 of
Saidabad Village, Hyderabad, to obtain Occupancy Rights
Certificate (for short ORC) from the Revenue Divisional Officer,
Hyderabad (for short RDO) and the GPA holder applied for ORC on
13.04.1992 and the RDO issued notice to all interest persons,
conducted enquiry with reference to the records and granted ORC
to Dr. Niranjan Prasad for Ac.1-20 guntas vide proceedings
No.B/6326/1990 dated 13.04.1992 basing on continuous
possession and enjoyment by Jagannath Prasad and his son
Dr. Niranjan Prasad since 1955 till date including during 1993 for
the entitlement as per Andhra Pradesh (Telangana Area) Abolition
of Inams Act, 1955 (for short the Act 1955) since amended and
consequently Dr. Niranjan Prasad became absolute owner for said
Ac.1-20 guntas and pursuant to the ORC he formed layout and
sold houses to various persons.
8. It is averred therefrom that the defendants on behalf of
the temple having kept an evil eye over the property are, are
troubling and interfering with plaintiffs and other house owners of
Balaji Nagar Colony supra despite resistance through their Colony
President M.Chandrasekhar Reddy and on 20.07.2013 with
antisocial elements with 4 JCBs and about 100 people, defendants
came to the schedule property and thrown out the tenants and
watchman and demolished the boundary wall and also structures
in some property and dumped 100 lorries of debris and leveled 6 to
7 houses under threat and the plaintiff and other neighbours
though chosen to resist could not against the antisocial elements
of defendants from the defendants grabbing the land of the
plaintiffs and others in collusion with the revenue, police and local
political people and there is cause of action to the suit therefrom.
It is also the averment that as per munthaqab dated 14.02.1950
that Bansuriwala Krishna Mandir presently known as Kishanjee
Temple was in S.No.84 of Karmanghat Village, R.R. District and
the temple is nothing to do with S.No.110 of Saidabad Village in
which the suit property is part and it is purely a private land of the
original owners supra and the plaintiffs who lost possession are
under the apprehension that defendants may create third party
interest in maintaining the suit.
9. The 1st defendant on behalf of the temple filed written
statements in all the suits respectively while denying the respective
plaint averments and claim in the suits and any entitlement and
existence of any cause of action to the respective plaintiffs and also
on jurisdiction of civil Court and maintainability of the suits
including from the special provisions of the Endowments Act,
No.30 of 1987 (for short the Act) with adjudicating authority
provided particularly from the bar laid down under Section 151 of
the Act and also for bare injunction not maintainable, but for if at
all for declaration of title and there is also Endowments Tribunal
duly constituted to decide any dispute or question or other matter
as per Section 162 of the amended Act and thereby also the suit is
not maintainable. It is also the contention that the property
belongs to the temple and it is endowed inam and there is also bar
to the maintainability of civil suit. It is also the contest that there
is no prior suit notice under Section 80 CPC. It is also contended
that no private person got any right over the property including
plaintiffs or their predecessors in title alleged much less with any
possession as of right. The service holder given inam for rendering
service to the temple and thereby any alienation unauthorizedly
made by the service holder, who is no other than mere trustee to
enjoy while in service for the inam burdened with service the
alienees cannot get any right. Dr. Niranjan Prasad through GPA
filed application under Section 7 of the Act 1955 to the RDO for
ORC for Ac.1-20 guntas in S.No.110 of Saidabad Village stating the
land as mafi inam granted in the name of Sri Bhagawan Das Pujari
from whom his father J.P. Sukhla purchased and they are in
continuous possession. In fact there is no any permission for sale
of the endowment land and ORC could not have been granted and
from the appeal filed and on remand, the RDO passed the order on
14.06.2013 rejecting their claim and cancelling the ORC, by
issuing ORC in favour of the temple as owner and pattadar and
there was also panchanama taking possession of the open land
and those having houses made representation of ready and willing
to regularize their occupations by payment of amounts to be fixed
by the Commissioner of Endowments and await action therefrom
and open land is leveled after taken possession by the Endowment
Department which is approximately Ac.2-10 guntas and in use as
parking place for vehicles etc., of devotees of the temple and the
contra averments are unsustainable.
10. It is with the contest the defendant temple filed
applications to decide as preliminary issue on maintainability of
the suit from the 5 issues framed including of maintainability for
want of jurisdiction as issue No.1. The 4 revisions filed are for not
deciding preliminary issue on the applications kept pending and in
ordering trial on all issues settled in the suits respectively.
11. In all the four revision petitions, it is the common
contention that the trial Court ought to have been framed
preliminary issue as sought for from the bar of jurisdiction to the
Civil Court, but for to the Endowments Tribunal constituted under
the Act No.30 of 1987 from reading of Section 151 of the Act and
framing of issues and putting on all issues for trial without
answering to decide preliminary issue on bar of jurisdiction and
very maintainability of the suit is by non application of mind and
by non-consideration of the requirement under Order XIV Rule 2(b)
CPC and hence to pass just orders by revising the impugned order
of the lower Court.
12. The learned counsel for the revision petitioners supra
reiterated the said grounds of revision. Whereas it is the
contention of the respondents/plaintiffs to the revisions that there
is no necessity to decide preliminary issue and when the trial
Court framed the issues including on jurisdiction to decide on all
issues after full dressed trial and there is nothing to interfere for
this Court and it is the claim that it is private property and once it
is private property there is nothing to say suit is not maintainable
from there is inherent lack of jurisdiction and therefore, the
revisions are liable to be dismissed. It is also the submission that
all issues are to be decided in the suit and not disposal by decision
on one issue.
13. Heard both sides with reference to the provisions covered
by Order XIV Rule 2 CPC and Order XX Rule 5 CPC and also with
reference to Sections 151 and 162 of the Act No.30 of 1987
amended by Act No.33 of 2007 with effect from 03.01.2008
including the Gazette notification issued pursuant to the
amendment constituting the Endowments Tribunal with
Chairman, Member and other staff respectively for its functioning
by framing the rules and perused the material on record.
14. Now coming to decide the lis covered by the revisions, it
is firstly in need to refer Order XX Rule 5 & Order XIV Rule 2 CPC.
14(a). Order XX Rule 5 CPC speaks that in suit in which
issues have been framed, the Court shall state its finding or
decision, with the reasons there for, upon each separate issue,
unless the finding upon any one or more of the issues is sufficient
for the decision of the suit.
14(b). Order 14 Rule 2 CPC reads that:
2. Court to pronounce judgment on all issues.- (1)
Notwithstanding that a case may be disposed of on a preliminary
issue, the court shall, subject to the provisions of sub-rule (2),
pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit,
and the court is of opinion that the case or any part thereof may be
disposed of on an issue of law only, it may try that issue first if that
issue relates to
(a) the jurisdiction of the court, or
(b) a bar to the suit created by any law for the time being in
force, and for that purpose may, if it thinks fit, postpone the
settlement of the other issues until after that issue has been
determined, and may deal with the suit in accordance with the
decision on that issue.
14(c). From its combined reading as also answered by this
Court in CCCA.No.128 of 2009 dated 02.12.2015 between Smt.
Maimoona Begum Vs. G.Sarat Babu on the scope of Order XX Rule
5 read with Order XIV Rule 2 CPC particularly from Paras 7 & 8 of
the judgment, a combined reading of these provisions make it
abundantly clear on question of law regarding jurisdiction or other
legal bar to a suit once required to be decided and if was decided
holding lack of jurisdiction or for other legal bar to maintain the
civil suit there is no need to deal with other issues for practically
the Court therefrom becomes functus officio. In this regard there
is no any inconsistency between the two provisions. It is to say at
the cost of repetition that if the Court gives any finding on the
preliminary issue of lack of jurisdiction or other legal bar
inherently which goes to the root of the matter, Court cannot
decide the lis on merits and consequently functus officio.
15. Having regard to the above and because Section 151 of
the Act also speaks that no suit or other legal proceeding in respect
of administration or management of an institution or endowment
or any other matters of dispute for determining or deciding, for
which provisions is made in this Act shall be instituted in any
Court of law except under and in conformity with the provisions of
this Act, it requires to decide jurisdiction and maintainability as a
preliminary issue.
16. Section 2 Sub Section 8 of the Act defines Court for
maintainability of any suit before any civil Court. A civil suit even
not maintainable other than before the Court defined in
Section 2 (8) of the Act. No doubt the City Civil Court in
Hyderabad in the municipal corporation limits of Hyderabad got
jurisdiction within the meaning of Court within territorial
jurisdiction irrespective of pecuniary limitation under Section 6 of
CPC and from the provisions of the Civil Courts Act 1972, read
with Section 2(8) of the Act supra provided there is no legal bar to
civil suit. Once there is a legal bar, civil suit wont lie but for to
approach the other machinery provided under the Act to decide the
lis from the wording of Section 151 of the Act referred supra.
17. On the scope of Section 151 of the Act, a Division Bench
of this Court in Sanjeeva Anjaneya Swamy Devastanam,
Rajahmundry, rep. by Archaka-cum-Trustee v. Thakkula
Dasaradha Ramaiah held that when there is a provision in the
Act to get relief, no civil suit lies in regular civil Court under
Section 9 of CPC from said bar contemplated by Section 151 of the
Act.
18. Here it is important to mention that by virtue of the
amendment by Act No.33 of 2007 to the Act No.30/1987 which
empowers the Government to constitute as many as Tribunals as it
may think fit for purposes of the Act, for the determination of any
dispute, question or the matter relating to charitable institution,
dharmadaya religious charity, religious endowments, religious
institutions or any institution defined in the Act and also defines
the local limitation and jurisdiction of each of such Tribunal. Sub
Section 1 of Section 162 speaks the above. Sub Sections 3 to 5 of
Section 162 speak that the Tribunal shall consist of Chairman and
one more member to be appointed by the Government and the
Chairman must be or has been a Judicial Officer not below the
rank of District Judge and the Member not below the rank of
Additional Commissioner of Endowments who holds or as held a
post and the Government may reconstitute the Tribunal may or
abolish the Tribunal and the manner of taking decision and the
procedure to be followed in conducting the proceedings are as may
be prescribed.
19. No doubt a single Judge expression of this Court in E.O.
SBMS Temple, Beeramguda Vs. Saikrupa Homes held that the
Tribunal constituted under the Act No.30/1987 is not competent
to decide the issue of title and suit for declaration of title would not
fall within the purview of the authorities under the Act within the
prohibition under Section 151 of the Act.
20. Even in said expression of E.O. SBMS Temple supra
what is referred the Division Bench expression of this Court in
Pindi Jaggayya Vs. Deity of Seetharamaswamy Varu . Pindi
Jaggayya supra is prior to the amended Act No.33 of 2007 and
there is no provision similar to Section 162 in existence by then
and a close reading of the decision one way shows concurrent
jurisdiction. From the expression in E.O. SBMS Temple supra only
in a case of declaratory relief sought, a civil suit can be maintained
from the concurrent jurisdiction to that extent and it no way shows
any other aspects.
21. In fact the law is fairly settled on implied ouster of civil
Court from the expressions of the Apex court in Dhulabhai And
Others Vs. The State of Madhya Pradesh that was also followed
in Premier Automobiles Ltd Vs. Kamlekar Shantaram Wadke
of Bombay and even the expression in VR Reddy Vs. KS Reddy
is under the Endowments Act 1967 and not under the Act 1987 for
no such, much less same or similar provisions to Section 151 of
the Act shown in existence, apart from Section 162 by Act
No.33/2007 introduced is a new provision similar to the provision
of the Wakfs Act No.43 of 1995.
22. Sections 83 & 85 of the Wakf Act, 1995 contain similar
to the wordings of Section 162 (1) of the Amended Act No.33/2007
providing by constitution of the Tribunal for the determination of
any dispute, question or the matter of any institution defined in
the Act. In interpreting the provisions of the Wakf Act supra
particularly Section 83, the Apex Court in Board of Wakf, West
Bengal Vs. Anis Fatma Begum also referred to and explaining
the earlier expression in Ramesh Gobindram (Deceased by LRs)
v. Sugra Humayun MirzaWakf held categorically that, the
Tribunal got exclusive jurisdiction since conferred to decide any
question, dispute or other matters relating to Wakf or Wakf board.
23. Relying upon said expression of Anis Fatima supra, this
Court in Srinivas Rao v. State of A.P. held that even revenue
authorities have no jurisdiction to decide the nature of land and to
grant ownership rights either under the Telangana Tenancy Act
1950 or AP (TA) Tenancy and Agricultural Lands Act, 1950 or for
determination of issuing ORC under the Act 1955 and Wakf
Tribunal alone got exclusive jurisdiction to decide for the aggrieved
parties to approach the Tribunal to decide any dispute, question or
other matters in relation to Wakf or Wakf Tribunal.
24. In CRP.No.5844 of 2011 between Mohd Ameerullah
Died per L.Rs. Vs. the A.P. State Wakf Board, this Court by
order dated 07.09.2016 also observed in this regard particularly
from Paras 6 to 8 that once the lands are notified as wakf lands,
but for the dispute to decide by the Wakf Tribunal under Sections
83 and 85 of the Wakf Act, 1995 and the revenue authorities
neither under AP (TA) Tenancy Act, 1950 nor under Abolition of
Inams Act, 1955 got jurisdiction to decide any dispute, question or
other matter in relation to the wakf property by also referring to
the expressions supra. It is also answered contextually of the
provision covered by Section 162 (1) of the Amended Act
No.33/2007 to the Act No.30/1987 is with similar wording of
Sections 83 & 85 of the Wakf Act. Thereby the civil Court has no
jurisdiction since exclusive jurisdiction conferred on the Tribunals
under the provisions of the 2 Acts.
25. From this it is also necessary to mention particularly
with reference to the Act No.30/1987 amended by 33/2007
incorporating Section 162 of the Act and also from Section 151 of
the Act, another expression of this Court in Jampani Trilokeswari
v. Dharmadoyatopu, rep. By its fit person where it was held
that civil Court has no jurisdiction but for the Endowments
Tribunal and earlier the Deputy Commissioners who were having
exclusive jurisdiction by virtue of the wording of Sections 151 and
162 of the Act.
26. From the above and after introduction of Section 162 (1)
by the amended Act 33 of 2007, which provides for the constitution
of the Endowments Tribunal to decide any dispute, question or
other matters in relation to any institution under the Act. It is in
fact pursuant to which and by G.O.Ms.No.837, Revenue
(Endowments I) Department dated 13.08.2009 read with
G.O.Ms.No.180 dated 28.02.2011 the Endowments Tribunal is
constituted and is functioning with procedure in relation to
deciding all the disputes with exclusive jurisdiction ousting thereby
civil courts jurisdiction.
27. Further the expressions of the Apex Court in Omprakash
Singh Vs. M.Lingamaiah , V.Lakshmi Narasamma v.
A.Yadaiah and State of Gujarat Vs. Gujarat Revenue Tribunal
Bar Association the Tribunals as per legal fiction be deemed as
civil Courts and also got jurisdiction to go into and decide any title
dispute even and can decide with all attributes of a civil litigation,
no doubt subject to disclosure of jurisdictional facts. Once such is
the case any dispute including title dispute when the Tribunal can
decide, civil courts jurisdiction is ousted and for that matter
including of any other Tribunal including the Tribunals under
Enams Abolition Act.
28. In fact in relation to the similar claim maintained against
the 1st defendant institution in CRP.No.2385, 2230 and 2359 of
2016 referring to Section 151 of the Act where a preliminary issue
was asked to decide among the 5 issues formulated on want of
jurisdiction by virtue of bar under Section 151 of the Act, it is
observed with a direction to decide as preliminary issue as per
Order XIV Rule 2(b) CPC out of the issues settled, in relation to the
jurisdiction because of the bar contained under Section 151 of the
Act No.30/1987.
29. In W.P.No.10606 of 2006 in relation to the issue of ORC
in favour of Sri Anjaneya Swamy Temple, Nalgonda District by
judgment dated 18.03.2009 it was held that for adjudication of the
dispute Section 87 of the Act No.30/1987 enables including to
establish the contention of land does not belong to the temple and
to grant any ORC in favour of private persons and the writ is
disposed of by leaving open to Section 87 of the Act. The same is
stated subject matter of W.A.No.1243 of 2009 with stay of
operation. In fact irrespective of the writ petition order of the
learned single Judge is subject matter of W.A. with stay of
operation, the single Judge expression of Srinivas Rao supra
referring to the expressions of the Apex Court in Anis Fatima supra
is when very clear under Section 83 of the Wakf Act of any dispute,
question or other matter exclusively to be decided by the Tribunal
and not even by the revenue authorities under the AP (TA)
Abolition of Inams Act, 1955. Once same is clear equally from the
wording of Section 162 of the Act No.30/1987 amended by
33/2007 from the Endowments Tribunal is constituted and
procedure for its functioning laid down and is functioning and the
Tribunal as per the expressions supra particularly of Om Prakash
supra, Gujarat Revenue Tribunal Bar Association and V.
Lakshmi Narasamma supra, got all the traits of the civil Court
and even can to go into and determine any title dispute and
because Section 87 of the Endowments Act also enables including
from Sections 151 and 162 of the Act which provide a bar for other
authorities but for exclusive jurisdiction to the Endowments
Tribunal to determine all disputes, questions or other matters in
relation to any existence including as to entitlement of any title or
grant of ORC or entitlement to tenancy rights etc., for the other
authorities there is implied ouster of jurisdiction, but for to the
Endowments Tribunal.
30. No doubt a single Judge expression of this Court in Mir
Sadath Ali Vs. Joint Collector, Ranga Reddy District observed
that AP (TA) Abolition of Inams Act 1955 is a self contained one
providing for internal mechanism to resolve every dispute arising
thereunder conferred power on RDO to decide all issues which
arise in course of arising into claims under Section 4(18) of the Act
including the issues in relation to succession and thereby not
necessary to relegate the parties to civil court for adjudication on
question of succession, that decision one way shows a Tribunal
provided with mechanism to decide a dispute can got into the title
and decide all disputes and parties cannot be relegated upon civil
court jurisdiction but for the special jurisdiction conferred on the
Tribunal.
31. In fact, subsequent to the provisions of the Act 1955
supra once by virtue of the Act No.30/1987 there is exclusion of
jurisdiction from Section 151 of the Act which is no doubt subject
to Section 77 of the Act which enables with concurrent jurisdiction
to approach the RDO for suo motu enquiry even by him to decide
nature of inam, once the Act is amended and Section 162 is
incorporated by Act No.33/2007 enables to decide any dispute,
question or other matter in relation to any institution under the
Act for that matter to decide any entitlement of occupancy rights
under the Act 1955 or any protected tenancy rights under Act
1950, the Tribunal constituted under the Endowment Act is since
functioning as discussed supra with the procedure and mechanism
that alone is having exclusive jurisdiction and not the other forums
including to exercise any concurrent jurisdiction.
32. In fact as referred supra, out of the 4 suits, one is for
damages, two are for possession and one is for bare injunction and
none of the suits are for declaration sought by any of the plaintiffs
for the property much less with the claim as private property so to
declare despite the ORC granted in favour of private person
Dr. Niranjan Prasad was on appeal by the temple authorities of the
Endowments Department remanded and ORC originally issued in
1992 was cancelled and consequently ORC issued in favour of the
temple by the primary authority-RDO under the Act 1955.
33. From the above, once there is inherently and prima facie,
lack of jurisdiction to the Civil Court but for to approach the
Endowments Tribunal and prima facie from the facts the ORC
granted in favour of the vendors or predecessors in title of the
respective plaintiffs of the four suits in 1992 were already
cancelled and ORC granted in favour of the temple under the Act
1955, still to claim as private property or to question the ORC from
Section 87 of the Act enables the remedy is to approach prima
facie the Endowments Tribunal and not by civil suits.
34. From the material appearing on the record when such is
the case the lower court has gravely erred in not considering the
application to decide the preliminary issue the lack of jurisdiction
of the civil Court.
35. Having regard to the above, all the four revisions are
allowed by directing the lower Court to decide the jurisdictional
aspect as a preliminary issue within the meaning of Order XIV
Rule 2 (b) with Order XX Rule 5 CPC with reference to Sections
151 read with 162 of the Act and the notifications issued in
G.O.Ms.837 dated 13.08.2009 and G.O.Ms.No.180 of 28.02.2011
and other connected Gazette notifications relevant, if any, and
further read with Sections 83, 84 and 87 of the Act No.30/1987
amended by Act No.33/2007.
Consequently, miscellaneous petitions, if any shall stand
closed. No costs.
_____________________________________
JUSTICE Dr. B.SIVA SANKARA RAO
Date: 05.01.2017
CIVIL REVISION PETITION Nos.5099 of 2016
05-01-2017
S.Anjana Reddy Petitioner
Palvoi Ranga Reddy and 3 others .Respondents
Counsel for the petitioners:Sri D.Sudarshan Reddy
Counsel for the respondents:Smt. Annapurna Sri Ram
<GIST:
>HEAD NOTE:
? Cases referred
1. 2009 (2) ALT 431 (DB)=(2) ALD 356
2. 2010 (6) ALD 207
3. 1987 (1) ALT 18 (DB)
4. AIR 1969 SC 78
5. AIR 1975 SC 2238
6. AIR 1967 SC 436
7. 2010 (14) SCC 588
8. AIR 2010 SC 2897
9. 2012 (3) ALD 411
10. 2012 (2) ALT 294
11. 2009 (12) SCC 613
12. 2009 (12) SCC 544
13. 2012 (7) SCJ 487
14. 2009 (2) ALD 124
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION Nos.5099, 5098, 5087 &
5130 of 2016
COMMON ORDER:
These 4 revision petitions since involving common question
of law are taken up at request for common adjudication.
2. Coming to the facts, the Executive Officer of Bansuriwala
Krishna Mandir, Saidabad, Hyderabad, shown as adopted temple
to Sri Hanuman Temple, Karmanghat, Hyderabad, as 1st defendant
and with name as S.Anjana Reddy S/o. Dasi Reddy being the
Executive Officer also in the individual capacity as 2nd defendant in
whatever manner supra impleaded in O.S.No.976 of 2014
(originally as O.S.No.1833 of 2013) that is maintained by the 3
plaintiffs against him individually and in the capacity of Executive
Officer and by showing another defendant by name Sudarsan
Yadav, in the capacity of Ex-chairman of Karmanghat Hanuman
Temple.
3. They maintained the suit for the relief permanent
injunction restraining the defendants and any others claiming
through or acted under them from changing nature of suit
schedule property by way of alienation or raising structures
therein which consists of open house bearing No.17-1-382/H/11
admeasuring 320 square yards in S.No.110 in Hanuman Nagar,
Balaji Nagar new of Saidabad Village and Mandal of Hyderabad
District within the boundaries described with the claim of they
purchased the property from Smt. N.Andalu W/o. Sudhakar Reddy
under registered sale deed No.286, dated 24.10.2004 who
purchased from Dr. Niranjan Prasad the owner. It is the further
claim of illegal interference followed by forceful dispossession of the
3 plaintiffs from the suit schedule property supra by the
defendants supra on 20.07.2013 and demolished all of a sudden
the boundary wall, the structure and started leveling of houses
through debris by changing nature of the property without notice
or right or title over the property.
4. Coming to O.S.No.6 of 2014 the 3 plaintiffs maintained
the same against defendant Nos.1 and 2 and three more
defendants no other than Assistant Commissioner for
Endowments, R.R. District, Retired Assistant Commissioner by
name Sri K.Raghunanda Rao of R.R. District and Commissioner of
Endowments, Boggulakunta, Hyderabad, for damages of
Rs.18,00,000/- with interest from date of suit till realization on the
claim that plaintiff No.1 is absolute owner of plot Nos.18 & 25
admeasuring 519 square yards of Balaji Nagar, Saidabad, with
rooms and compound wall and plaintiff No.2 is absolute owner of
plot No.17 admeasuring 205 square yards of Balaji Nagar
(Hanuman Nagar) Hyderabad with 5 rooms and got by registered
settlement No.2149 dated 22.06.2004 and original plaintiff No.3 is
the owner of plot No.17 and one room in plot No.19 measuring 150
square yards of Balaji Nagar, Saidabad, by registered gift deed
No.2146 dated 22.06.2004 and they purchased the property which
is part of S.No.110 of Saidabad from the owner Dr. Niranjan
Prasad. The suit claim further is that the defendants demolished
compound wall, ground floor with 6 rooms and took away valuable
material and the demolition was done on 01.05.2013 by violation
of status quo orders in I.A.No.245 of 2013 in O.S.No.944 of 2013
suit for bare injunction and they got cause of action towards the
defendants for the suit reliefs including for physical and mental
torture, loss of good will and prestige and damages for demolition
of the rooms and they also filed W.P.No.21780 of 2013 challenging
the demolition and the High Court observed for entitlement of
damages to seek and therefrom also they got cause of action.
5. The suit O.S.No.687 of 2013 is filed by sole plaintiff
Mekala Prabhakar Reddy, for the relief of delivery of possession of
the plaint schedule in favour of plaintiff and for permanent
injunction restraining the two defendants of the temple supra from
interfering with plaint schedule and costs with averments of
plaintiff is owner of plot No.3 measuring 178 square yards in
S.No.110 pursuant to sale agreement dated 12.04.2000 from
S. Jeetu Prasad who purchased under registered sale deed dated
08.09.1996 from Dr. Niranjan Prasad the owner. The further
averments in the plaint are that the defendants all of a sudden on
20.07.2013 came with 4 JCBs with antisocial elements and
demolished boundary wall and also structures in some properties
and leveled 6 to 7 plots under threat which the plaintiff and others
could not resist and as per muntaqab of the year 1950 temple is
granted inam in S.No.78 of Karmanghat and not S.No.110
Saidabad and notice even sent to the defendants by the colony
president before filing of the suit in cause of action and hence
entitled to relief.
6. The sole plaintiff filed the suit in O.S.No.688 of 2013 for
possession of the plaint schedule property consisting of plot No.4
admeasuring 173 square yards of S.No.110 of Balaji Nagar,
Saidabad village and claiming title under gift deed dated
03.08.2013 in favour of plaintiff with the boundaries described
with claim of Dr. Niranjan Prasad the owner of Ac.1-20 guntas sold
to various people by forming layout including to one Jeetu Prasad
from whom Smt. Muthyala Suvarna purchased and executed gift
deed dated 28.07.2007 to his sister who in turn executed gift deed
dated 03.08.2013 in favour of the plaintiff. The other averments
are like in the pleadings of the other plaints referred supra that on
20.07.2013 the defendants came with JCBs leveled some plots by
demolishing wall etc and taken possession and hence plaintiff is
entitled to the reliefs.
7. It is with claim of all plaintiffs common in all the suits
that an inam was given 80 years ago to one Sri Bhagawan Das
Pujari by the then Hyderabad Nizam to an extent of Ac.2-35 guntas
and said Bhagwan Das sold away the same to Sri Jagannath
Prasad Shukla 60 years ago and after death of said J.P. Shukla his
only son Dr. Niranjan Prasad having succeeded the property and
executed General Power of Attorney (for short GPA) in favour of
one L.Sashank Reddy for Ac.1-20 guntas out of S.No.110 of
Saidabad Village, Hyderabad, to obtain Occupancy Rights
Certificate (for short ORC) from the Revenue Divisional Officer,
Hyderabad (for short RDO) and the GPA holder applied for ORC on
13.04.1992 and the RDO issued notice to all interest persons,
conducted enquiry with reference to the records and granted ORC
to Dr. Niranjan Prasad for Ac.1-20 guntas vide proceedings
No.B/6326/1990 dated 13.04.1992 basing on continuous
possession and enjoyment by Jagannath Prasad and his son
Dr. Niranjan Prasad since 1955 till date including during 1993 for
the entitlement as per Andhra Pradesh (Telangana Area) Abolition
of Inams Act, 1955 (for short the Act 1955) since amended and
consequently Dr. Niranjan Prasad became absolute owner for said
Ac.1-20 guntas and pursuant to the ORC he formed layout and
sold houses to various persons.
8. It is averred therefrom that the defendants on behalf of
the temple having kept an evil eye over the property are, are
troubling and interfering with plaintiffs and other house owners of
Balaji Nagar Colony supra despite resistance through their Colony
President M.Chandrasekhar Reddy and on 20.07.2013 with
antisocial elements with 4 JCBs and about 100 people, defendants
came to the schedule property and thrown out the tenants and
watchman and demolished the boundary wall and also structures
in some property and dumped 100 lorries of debris and leveled 6 to
7 houses under threat and the plaintiff and other neighbours
though chosen to resist could not against the antisocial elements
of defendants from the defendants grabbing the land of the
plaintiffs and others in collusion with the revenue, police and local
political people and there is cause of action to the suit therefrom.
It is also the averment that as per munthaqab dated 14.02.1950
that Bansuriwala Krishna Mandir presently known as Kishanjee
Temple was in S.No.84 of Karmanghat Village, R.R. District and
the temple is nothing to do with S.No.110 of Saidabad Village in
which the suit property is part and it is purely a private land of the
original owners supra and the plaintiffs who lost possession are
under the apprehension that defendants may create third party
interest in maintaining the suit.
9. The 1st defendant on behalf of the temple filed written
statements in all the suits respectively while denying the respective
plaint averments and claim in the suits and any entitlement and
existence of any cause of action to the respective plaintiffs and also
on jurisdiction of civil Court and maintainability of the suits
including from the special provisions of the Endowments Act,
No.30 of 1987 (for short the Act) with adjudicating authority
provided particularly from the bar laid down under Section 151 of
the Act and also for bare injunction not maintainable, but for if at
all for declaration of title and there is also Endowments Tribunal
duly constituted to decide any dispute or question or other matter
as per Section 162 of the amended Act and thereby also the suit is
not maintainable. It is also the contention that the property
belongs to the temple and it is endowed inam and there is also bar
to the maintainability of civil suit. It is also the contest that there
is no prior suit notice under Section 80 CPC. It is also contended
that no private person got any right over the property including
plaintiffs or their predecessors in title alleged much less with any
possession as of right. The service holder given inam for rendering
service to the temple and thereby any alienation unauthorizedly
made by the service holder, who is no other than mere trustee to
enjoy while in service for the inam burdened with service the
alienees cannot get any right. Dr. Niranjan Prasad through GPA
filed application under Section 7 of the Act 1955 to the RDO for
ORC for Ac.1-20 guntas in S.No.110 of Saidabad Village stating the
land as mafi inam granted in the name of Sri Bhagawan Das Pujari
from whom his father J.P. Sukhla purchased and they are in
continuous possession. In fact there is no any permission for sale
of the endowment land and ORC could not have been granted and
from the appeal filed and on remand, the RDO passed the order on
14.06.2013 rejecting their claim and cancelling the ORC, by
issuing ORC in favour of the temple as owner and pattadar and
there was also panchanama taking possession of the open land
and those having houses made representation of ready and willing
to regularize their occupations by payment of amounts to be fixed
by the Commissioner of Endowments and await action therefrom
and open land is leveled after taken possession by the Endowment
Department which is approximately Ac.2-10 guntas and in use as
parking place for vehicles etc., of devotees of the temple and the
contra averments are unsustainable.
10. It is with the contest the defendant temple filed
applications to decide as preliminary issue on maintainability of
the suit from the 5 issues framed including of maintainability for
want of jurisdiction as issue No.1. The 4 revisions filed are for not
deciding preliminary issue on the applications kept pending and in
ordering trial on all issues settled in the suits respectively.
11. In all the four revision petitions, it is the common
contention that the trial Court ought to have been framed
preliminary issue as sought for from the bar of jurisdiction to the
Civil Court, but for to the Endowments Tribunal constituted under
the Act No.30 of 1987 from reading of Section 151 of the Act and
framing of issues and putting on all issues for trial without
answering to decide preliminary issue on bar of jurisdiction and
very maintainability of the suit is by non application of mind and
by non-consideration of the requirement under Order XIV Rule 2(b)
CPC and hence to pass just orders by revising the impugned order
of the lower Court.
12. The learned counsel for the revision petitioners supra
reiterated the said grounds of revision. Whereas it is the
contention of the respondents/plaintiffs to the revisions that there
is no necessity to decide preliminary issue and when the trial
Court framed the issues including on jurisdiction to decide on all
issues after full dressed trial and there is nothing to interfere for
this Court and it is the claim that it is private property and once it
is private property there is nothing to say suit is not maintainable
from there is inherent lack of jurisdiction and therefore, the
revisions are liable to be dismissed. It is also the submission that
all issues are to be decided in the suit and not disposal by decision
on one issue.
13. Heard both sides with reference to the provisions covered
by Order XIV Rule 2 CPC and Order XX Rule 5 CPC and also with
reference to Sections 151 and 162 of the Act No.30 of 1987
amended by Act No.33 of 2007 with effect from 03.01.2008
including the Gazette notification issued pursuant to the
amendment constituting the Endowments Tribunal with
Chairman, Member and other staff respectively for its functioning
by framing the rules and perused the material on record.
14. Now coming to decide the lis covered by the revisions, it
is firstly in need to refer Order XX Rule 5 & Order XIV Rule 2 CPC.
14(a). Order XX Rule 5 CPC speaks that in suit in which
issues have been framed, the Court shall state its finding or
decision, with the reasons there for, upon each separate issue,
unless the finding upon any one or more of the issues is sufficient
for the decision of the suit.
14(b). Order 14 Rule 2 CPC reads that:
2. Court to pronounce judgment on all issues.- (1)
Notwithstanding that a case may be disposed of on a preliminary
issue, the court shall, subject to the provisions of sub-rule (2),
pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit,
and the court is of opinion that the case or any part thereof may be
disposed of on an issue of law only, it may try that issue first if that
issue relates to
(a) the jurisdiction of the court, or
(b) a bar to the suit created by any law for the time being in
force, and for that purpose may, if it thinks fit, postpone the
settlement of the other issues until after that issue has been
determined, and may deal with the suit in accordance with the
decision on that issue.
14(c). From its combined reading as also answered by this
Court in CCCA.No.128 of 2009 dated 02.12.2015 between Smt.
Maimoona Begum Vs. G.Sarat Babu on the scope of Order XX Rule
5 read with Order XIV Rule 2 CPC particularly from Paras 7 & 8 of
the judgment, a combined reading of these provisions make it
abundantly clear on question of law regarding jurisdiction or other
legal bar to a suit once required to be decided and if was decided
holding lack of jurisdiction or for other legal bar to maintain the
civil suit there is no need to deal with other issues for practically
the Court therefrom becomes functus officio. In this regard there
is no any inconsistency between the two provisions. It is to say at
the cost of repetition that if the Court gives any finding on the
preliminary issue of lack of jurisdiction or other legal bar
inherently which goes to the root of the matter, Court cannot
decide the lis on merits and consequently functus officio.
15. Having regard to the above and because Section 151 of
the Act also speaks that no suit or other legal proceeding in respect
of administration or management of an institution or endowment
or any other matters of dispute for determining or deciding, for
which provisions is made in this Act shall be instituted in any
Court of law except under and in conformity with the provisions of
this Act, it requires to decide jurisdiction and maintainability as a
preliminary issue.
16. Section 2 Sub Section 8 of the Act defines Court for
maintainability of any suit before any civil Court. A civil suit even
not maintainable other than before the Court defined in
Section 2 (8) of the Act. No doubt the City Civil Court in
Hyderabad in the municipal corporation limits of Hyderabad got
jurisdiction within the meaning of Court within territorial
jurisdiction irrespective of pecuniary limitation under Section 6 of
CPC and from the provisions of the Civil Courts Act 1972, read
with Section 2(8) of the Act supra provided there is no legal bar to
civil suit. Once there is a legal bar, civil suit wont lie but for to
approach the other machinery provided under the Act to decide the
lis from the wording of Section 151 of the Act referred supra.
17. On the scope of Section 151 of the Act, a Division Bench
of this Court in Sanjeeva Anjaneya Swamy Devastanam,
Rajahmundry, rep. by Archaka-cum-Trustee v. Thakkula
Dasaradha Ramaiah held that when there is a provision in the
Act to get relief, no civil suit lies in regular civil Court under
Section 9 of CPC from said bar contemplated by Section 151 of the
Act.
18. Here it is important to mention that by virtue of the
amendment by Act No.33 of 2007 to the Act No.30/1987 which
empowers the Government to constitute as many as Tribunals as it
may think fit for purposes of the Act, for the determination of any
dispute, question or the matter relating to charitable institution,
dharmadaya religious charity, religious endowments, religious
institutions or any institution defined in the Act and also defines
the local limitation and jurisdiction of each of such Tribunal. Sub
Section 1 of Section 162 speaks the above. Sub Sections 3 to 5 of
Section 162 speak that the Tribunal shall consist of Chairman and
one more member to be appointed by the Government and the
Chairman must be or has been a Judicial Officer not below the
rank of District Judge and the Member not below the rank of
Additional Commissioner of Endowments who holds or as held a
post and the Government may reconstitute the Tribunal may or
abolish the Tribunal and the manner of taking decision and the
procedure to be followed in conducting the proceedings are as may
be prescribed.
19. No doubt a single Judge expression of this Court in E.O.
SBMS Temple, Beeramguda Vs. Saikrupa Homes held that the
Tribunal constituted under the Act No.30/1987 is not competent
to decide the issue of title and suit for declaration of title would not
fall within the purview of the authorities under the Act within the
prohibition under Section 151 of the Act.
20. Even in said expression of E.O. SBMS Temple supra
what is referred the Division Bench expression of this Court in
Pindi Jaggayya Vs. Deity of Seetharamaswamy Varu . Pindi
Jaggayya supra is prior to the amended Act No.33 of 2007 and
there is no provision similar to Section 162 in existence by then
and a close reading of the decision one way shows concurrent
jurisdiction. From the expression in E.O. SBMS Temple supra only
in a case of declaratory relief sought, a civil suit can be maintained
from the concurrent jurisdiction to that extent and it no way shows
any other aspects.
21. In fact the law is fairly settled on implied ouster of civil
Court from the expressions of the Apex court in Dhulabhai And
Others Vs. The State of Madhya Pradesh that was also followed
in Premier Automobiles Ltd Vs. Kamlekar Shantaram Wadke
of Bombay and even the expression in VR Reddy Vs. KS Reddy
is under the Endowments Act 1967 and not under the Act 1987 for
no such, much less same or similar provisions to Section 151 of
the Act shown in existence, apart from Section 162 by Act
No.33/2007 introduced is a new provision similar to the provision
of the Wakfs Act No.43 of 1995.
22. Sections 83 & 85 of the Wakf Act, 1995 contain similar
to the wordings of Section 162 (1) of the Amended Act No.33/2007
providing by constitution of the Tribunal for the determination of
any dispute, question or the matter of any institution defined in
the Act. In interpreting the provisions of the Wakf Act supra
particularly Section 83, the Apex Court in Board of Wakf, West
Bengal Vs. Anis Fatma Begum also referred to and explaining
the earlier expression in Ramesh Gobindram (Deceased by LRs)
v. Sugra Humayun MirzaWakf held categorically that, the
Tribunal got exclusive jurisdiction since conferred to decide any
question, dispute or other matters relating to Wakf or Wakf board.
23. Relying upon said expression of Anis Fatima supra, this
Court in Srinivas Rao v. State of A.P. held that even revenue
authorities have no jurisdiction to decide the nature of land and to
grant ownership rights either under the Telangana Tenancy Act
1950 or AP (TA) Tenancy and Agricultural Lands Act, 1950 or for
determination of issuing ORC under the Act 1955 and Wakf
Tribunal alone got exclusive jurisdiction to decide for the aggrieved
parties to approach the Tribunal to decide any dispute, question or
other matters in relation to Wakf or Wakf Tribunal.
24. In CRP.No.5844 of 2011 between Mohd Ameerullah
Died per L.Rs. Vs. the A.P. State Wakf Board, this Court by
order dated 07.09.2016 also observed in this regard particularly
from Paras 6 to 8 that once the lands are notified as wakf lands,
but for the dispute to decide by the Wakf Tribunal under Sections
83 and 85 of the Wakf Act, 1995 and the revenue authorities
neither under AP (TA) Tenancy Act, 1950 nor under Abolition of
Inams Act, 1955 got jurisdiction to decide any dispute, question or
other matter in relation to the wakf property by also referring to
the expressions supra. It is also answered contextually of the
provision covered by Section 162 (1) of the Amended Act
No.33/2007 to the Act No.30/1987 is with similar wording of
Sections 83 & 85 of the Wakf Act. Thereby the civil Court has no
jurisdiction since exclusive jurisdiction conferred on the Tribunals
under the provisions of the 2 Acts.
25. From this it is also necessary to mention particularly
with reference to the Act No.30/1987 amended by 33/2007
incorporating Section 162 of the Act and also from Section 151 of
the Act, another expression of this Court in Jampani Trilokeswari
v. Dharmadoyatopu, rep. By its fit person where it was held
that civil Court has no jurisdiction but for the Endowments
Tribunal and earlier the Deputy Commissioners who were having
exclusive jurisdiction by virtue of the wording of Sections 151 and
162 of the Act.
26. From the above and after introduction of Section 162 (1)
by the amended Act 33 of 2007, which provides for the constitution
of the Endowments Tribunal to decide any dispute, question or
other matters in relation to any institution under the Act. It is in
fact pursuant to which and by G.O.Ms.No.837, Revenue
(Endowments I) Department dated 13.08.2009 read with
G.O.Ms.No.180 dated 28.02.2011 the Endowments Tribunal is
constituted and is functioning with procedure in relation to
deciding all the disputes with exclusive jurisdiction ousting thereby
civil courts jurisdiction.
27. Further the expressions of the Apex Court in Omprakash
Singh Vs. M.Lingamaiah , V.Lakshmi Narasamma v.
A.Yadaiah and State of Gujarat Vs. Gujarat Revenue Tribunal
Bar Association the Tribunals as per legal fiction be deemed as
civil Courts and also got jurisdiction to go into and decide any title
dispute even and can decide with all attributes of a civil litigation,
no doubt subject to disclosure of jurisdictional facts. Once such is
the case any dispute including title dispute when the Tribunal can
decide, civil courts jurisdiction is ousted and for that matter
including of any other Tribunal including the Tribunals under
Enams Abolition Act.
28. In fact in relation to the similar claim maintained against
the 1st defendant institution in CRP.No.2385, 2230 and 2359 of
2016 referring to Section 151 of the Act where a preliminary issue
was asked to decide among the 5 issues formulated on want of
jurisdiction by virtue of bar under Section 151 of the Act, it is
observed with a direction to decide as preliminary issue as per
Order XIV Rule 2(b) CPC out of the issues settled, in relation to the
jurisdiction because of the bar contained under Section 151 of the
Act No.30/1987.
29. In W.P.No.10606 of 2006 in relation to the issue of ORC
in favour of Sri Anjaneya Swamy Temple, Nalgonda District by
judgment dated 18.03.2009 it was held that for adjudication of the
dispute Section 87 of the Act No.30/1987 enables including to
establish the contention of land does not belong to the temple and
to grant any ORC in favour of private persons and the writ is
disposed of by leaving open to Section 87 of the Act. The same is
stated subject matter of W.A.No.1243 of 2009 with stay of
operation. In fact irrespective of the writ petition order of the
learned single Judge is subject matter of W.A. with stay of
operation, the single Judge expression of Srinivas Rao supra
referring to the expressions of the Apex Court in Anis Fatima supra
is when very clear under Section 83 of the Wakf Act of any dispute,
question or other matter exclusively to be decided by the Tribunal
and not even by the revenue authorities under the AP (TA)
Abolition of Inams Act, 1955. Once same is clear equally from the
wording of Section 162 of the Act No.30/1987 amended by
33/2007 from the Endowments Tribunal is constituted and
procedure for its functioning laid down and is functioning and the
Tribunal as per the expressions supra particularly of Om Prakash
supra, Gujarat Revenue Tribunal Bar Association and V.
Lakshmi Narasamma supra, got all the traits of the civil Court
and even can to go into and determine any title dispute and
because Section 87 of the Endowments Act also enables including
from Sections 151 and 162 of the Act which provide a bar for other
authorities but for exclusive jurisdiction to the Endowments
Tribunal to determine all disputes, questions or other matters in
relation to any existence including as to entitlement of any title or
grant of ORC or entitlement to tenancy rights etc., for the other
authorities there is implied ouster of jurisdiction, but for to the
Endowments Tribunal.
30. No doubt a single Judge expression of this Court in Mir
Sadath Ali Vs. Joint Collector, Ranga Reddy District observed
that AP (TA) Abolition of Inams Act 1955 is a self contained one
providing for internal mechanism to resolve every dispute arising
thereunder conferred power on RDO to decide all issues which
arise in course of arising into claims under Section 4(18) of the Act
including the issues in relation to succession and thereby not
necessary to relegate the parties to civil court for adjudication on
question of succession, that decision one way shows a Tribunal
provided with mechanism to decide a dispute can got into the title
and decide all disputes and parties cannot be relegated upon civil
court jurisdiction but for the special jurisdiction conferred on the
Tribunal.
31. In fact, subsequent to the provisions of the Act 1955
supra once by virtue of the Act No.30/1987 there is exclusion of
jurisdiction from Section 151 of the Act which is no doubt subject
to Section 77 of the Act which enables with concurrent jurisdiction
to approach the RDO for suo motu enquiry even by him to decide
nature of inam, once the Act is amended and Section 162 is
incorporated by Act No.33/2007 enables to decide any dispute,
question or other matter in relation to any institution under the
Act for that matter to decide any entitlement of occupancy rights
under the Act 1955 or any protected tenancy rights under Act
1950, the Tribunal constituted under the Endowment Act is since
functioning as discussed supra with the procedure and mechanism
that alone is having exclusive jurisdiction and not the other forums
including to exercise any concurrent jurisdiction.
32. In fact as referred supra, out of the 4 suits, one is for
damages, two are for possession and one is for bare injunction and
none of the suits are for declaration sought by any of the plaintiffs
for the property much less with the claim as private property so to
declare despite the ORC granted in favour of private person
Dr. Niranjan Prasad was on appeal by the temple authorities of the
Endowments Department remanded and ORC originally issued in
1992 was cancelled and consequently ORC issued in favour of the
temple by the primary authority-RDO under the Act 1955.
33. From the above, once there is inherently and prima facie,
lack of jurisdiction to the Civil Court but for to approach the
Endowments Tribunal and prima facie from the facts the ORC
granted in favour of the vendors or predecessors in title of the
respective plaintiffs of the four suits in 1992 were already
cancelled and ORC granted in favour of the temple under the Act
1955, still to claim as private property or to question the ORC from
Section 87 of the Act enables the remedy is to approach prima
facie the Endowments Tribunal and not by civil suits.
34. From the material appearing on the record when such is
the case the lower court has gravely erred in not considering the
application to decide the preliminary issue the lack of jurisdiction
of the civil Court.
35. Having regard to the above, all the four revisions are
allowed by directing the lower Court to decide the jurisdictional
aspect as a preliminary issue within the meaning of Order XIV
Rule 2 (b) with Order XX Rule 5 CPC with reference to Sections
151 read with 162 of the Act and the notifications issued in
G.O.Ms.837 dated 13.08.2009 and G.O.Ms.No.180 of 28.02.2011
and other connected Gazette notifications relevant, if any, and
further read with Sections 83, 84 and 87 of the Act No.30/1987
amended by Act No.33/2007.
Consequently, miscellaneous petitions, if any shall stand
closed. No costs.
_____________________________________
JUSTICE Dr. B.SIVA SANKARA RAO
Date: 05.01.2017
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