1 VS,J C.M.A.No.114 of 2019 APHC010112322019 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] THURSDAY,THE SIXTEENTH DAY OF APRIL TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA CIVIL MISCELLANEOUS APPEAL NO: 114/2019 Between: 1. KANDEPI SRINIVASA RAO, R/O BESIDE POST OFFICE, S.N.PADU VILLAGE AND MANDAL, PRAKASAM DIST. ...APPELLANT AND 1. THE ASSISTANT COMMISSIONER ENDOWMENTS DEPARTMENT, ONGOLE, PRAKASAM DISTRICT 2. SRI KODANDA RAMA SWAMY TEMPLE SANTHANUTHALAPADU, SANTHANUTHALAPADU, REP. BY SRI VELAMPALLI KASI VISWANADHAM, S/O LATE RANGANAUYAKULU, AGED ABOUT 63 YEARS, R/O S.N. PADU VILLAGE AND MANDAL, PRAKASAM DIST. ...RESPONDENT(S): Appeal Under Section_____against ordersof the Order and Decree DT. 26-02-2019 in O.A.No. 447 of 2012 on the file of the Andhra Pradesh Endowments Tribunal, Amaravathi at Pedakakani pending disposal of the above Civil Miscellaneous Appeal IA NO: 1 OF 2019 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of the Order and Decree Dt. 26.02.2019 in O.A.NO. 2 VS,J C.M.A.No.114 of 2019 447 of 2012 on the file of the Andhra Pradesh Endowments Tribunal, Amaravathi at Pedakakani pending disposal of the above CMA and pass Counsel for the Appellant: 1. SRIDHAR TUMMALAPUDI Counsel for the Respondent(S): 1. DEVI SUBHASHINI ANNE SC For Endowments The Court made the following: 3 VS,J C.M.A.No.114 of 2019 JUDGMENT: This Civil Miscellaneous Appeal is filed by the appellant/respondent under Section 84(2) of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 challenging the order dated 26.02.2019 passed in O.A.No.447 of 2012 by the Member, A.P. Endowments Tribunal, Amaravathi at Pedakakani, whereby, the Tribunal allowed the petition directing appellant/respondent to vacate and deliver vacant possession of the petition scheduled property. 2) For the sake of convenience, the parties to the appeal will hereinafter be referred as petitiones and respondent, as arrayed before the Tribunal in O.A.No.447 of 2012. 3) It is the case of the petitioners that the petition schedule property belongs to one Sikhakolli Kodanda Ramaiah’s family and the same was being used for the service of lord Sri Kodanda Rama Swamy temple; the said property to an extent of 20½ gadies was gifted to the 2nd petitioner by Sikhakolli Durgmba and her sons by way of a registered gift deed bearing document No.153/1964, dated 12.03.1964; ever since, the 2nd petitioner’s temple has been in possession and enjoyment of the same. The respondent started encroaching the said land from April, 2012 by digging trenches for foundation for construction as if it is his own site. Hence, the petitioners filed a petition before the Tribunal seeking eviction of the respondent from the petition schedule property. 4) The respondent contested the said application by filing a counter affidavit stating that originally, Sikhakolli Kodanda Ramaiah’s family owns the property to an extent of 46 gadies of land and on 06.11.1914, vide document No.1527/1914, the said Sikhakolli Kodanda Ramiah and his father Addenna partitioned the said land and secured 23 gadies each. After the death of 4 VS,J C.M.A.No.114 of 2019 Addenna, Kodanda Ramaiah and his mother Smt. Kotamma jointly sold an extent of 10 gadies situated towards northern side of the respondent’s property to one Kormala Subbaiah. Vide document NO.1533/1914, Kodanda Ramaiah purchased an extent of 51 gadies in the same Sy.No.997 in his individual capacity and in the year 1923, he got his property mortgaged vide document No.369/1923 to Matta Subbaraidu, Venkata Subbaiah. After the death of Kodanda Ramaiah, the property admeasuring 69 gadies was registered in favour of Matta Subbaraidu, Venkata Subbaiah in the year 1936. Matta Venkata Subbaiah sold 38 gadies to the father of the respondent, 12 gadies to Appala Balaiah and 19 gadies to Munada Chanaiah. Subsequently, the father of the respondent is said to have purchased 19 gadies from Munada Chanaiah vide document No.1325/1970 and has constructed a small shed with compound wall, wherein, the respondent’s family has been residing since 1971. Hence requested the Tribunal to dismiss the application. 5) Basing on the above pleadings, the Tribunal framed the following issues: 1) Whether the 2nd applicant is owner of petition scheduled property and if so the respondent is liable for eviction as encroacher U/s 83 of the Act 30/1987? 2) To what result? 6) During the course of trial, the Chairman of the 2nd petitioner was examined and got marked Exs.P1 to P5. The respondent himself was examined as R.W.1 and got marked Exs.R1 to R6 in support of his case. 7) The Tribunal, relying on the documentary evidence produced by either side, came to a conclusion that though the father of the respondent purchased many pieces of land surrounding the petition schedule property, he has constructed a shed in his land and after his death, the respondent herein 5 VS,J C.M.A.No.114 of 2019 might have encroached upon the scheduled property and tried to construct a permanent house. It further observed that the boundaries of the properties in Sy.No.997 were not demarcated because of many complicated issues; that an advocate Commissioner has also been appointed for physically inspecting the site and demarcate the boundaries, however the advocate Commissioner was also unable to come to a clear conclusion as to where the petition schedule property is situated. Thus, the Tribunal allowed the application vide the impugned order dated 26.02.2019, filed by the applicants and directed the respondent to vacate and deliver vacant possession of the petition schedule property to the 2nd petitioner temple and answered issue No.1 holding that respondent would fall within the definition of encroacher under Section 83 of the Act 30 of 1987 and liable to be evicted and directed respondent to vacate and deliver vacant possession of the petition scheduled property to the 2nd petitioner. 8) Aggrieved by the said order, the present appeal has been preferred by the respondent on the ground that the Tribunal erred in granting decree though no boundaries were mentioned in the document relied on by applicants. 9) When the matter listed for admission, on 09.04.2019 this Court passed the following interim order in I.A.No.1 of 2019. “…there shall be interim suspension as prayed for till 16.04.2019.” The aforesaid interim order was extended thereafter from time to time. 10) Learned counsel for the appellant has strenuously contended that the Tribunal failed to observe that the registered gift deed on which the respondents were relying has not specific boundaries of the land and that without discussing the proper schedule of the petition schedule property, it has passed the impugned decree directing the appellant to vacate the petition 6 VS,J C.M.A.No.114 of 2019 schedule property. Furthermore, he seeks attention of this Court to paragraph No.15 of the impugned order which makes it clear that there is no material available for the Tribunal to come to a conclusion that the petition schedule property belongs to the 2nd respondent temple. Having observed that though an advocate commissioner was appointed to demarcate the petition schedule property, he could not demarcate the same, the Tribunal ought not to have passed the impugned order. Hence requested to set aside the impugned order. 11) Learned counsel for the respondents contended that appellant would fall within the definition of encroachers under Section 83 of Act 30 of 1987, therefore, the Tribunal rightly ordered for eviction of appellant and supported the order of the Court below in all respects, requested this Court to dismiss the present appeal. 12) Heard Sri. Sridhar Tummalapudi, learned counsel for the appellant and Ms. A. Devi Subhashini, learned counsel for the respondents. 13) Perused the entire material on record. Undisputedly, it appears from the record, there is a dispute with regard to the title between the parties, which has to be proved by producing oral and documentary evidence and the same will be decided after full-fledged trial conducted by a competent Civil Court, but not in a summary proceedings before the Tribunal. 14) Learned counsel for the appellant relied on the judgment of this Court in “Nathani Ravindrudu Vs. Assistant Commissioner, Endowments Department, Ongole, Prakasam District 1 ” in support his contentions, wherein this Court discussed about the power of Endowments Tribunal to decide certain disputes as per Section 87 of the Act 30 of 1987, which is as follows: 1 2024 (3) ALD 662 (AP) 7 VS,J C.M.A.No.114 of 2019 “Section 87(1) The Endowments Tribunal having jurisdiction shall have the power, after giving notice in the prescribed manner to the person concerned, to enquire into and decide any dispute as to the question- (a) Whether an institution or endowment is a charitable institution or endowment; (b) Whether an institution or endowment is a religious institution or endowment; (c) Whether any property is an endowment, if so whether it is a charitable endowment or religious endowment; (d) Whether any property is a specific endowment; (e) Whether any person is entitled by custom or otherwise to any honour, emoluments or perquisites in any charitable or religious institution or endowment and what the established usage of such institution or endowment is in regard to any other matter; (f) Whether any institution or endowment is wholly partly of a secular or religious character and whether any property is given wholly or partly for secular or religious uses; or (g) Where any property or money has been given for the support of an institution or endowment which is partly of a secular character and partly of a religious character or the performance of any service or charity connected with such institution or endowment or the performance of a charity which is partly of a secular character and partly of a religious character or where any property or money given is appropriated partly to secular uses and partly to religious uses, as to what portion of such property of money shall be allocated to secular or religious uses; (h) Whether a person is a founder or a member from the family of the founder of an Institution or Endowment.” 15) Adverting to the above provision, in the above referred judgment, this Court directed the parties therein to approach the competent civil Court as the dispute with regard to title cannot be decided by the Tribunal. 8 VS,J C.M.A.No.114 of 2019 16) In “Union of India (UOI) and Ors. Vs. Vasavi Co-op. Housing Society Ltd. and Ors.2” the Apex Court held that in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. The Hon'ble Apex Court further held that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. 17) Relying on the said judgment, the Division Bench of this Court in “Matam Ashok Kumar Vs. State of Andhra Pradesh, Represented by its District Collector, Kurnool (First Appeal No.609 of 2011)”, dismissed the appeal preferred against the Endowments Department, holding that in a suit for declaration of title, the burden of proof is always on plaintiffs to prove the title by adducing cogent evidence to the satisfaction of the Court and that mere mutation in revenue records does not confer any title nor is a proof of title. 18) In the present case, the 2nd petitioner institution is claiming right over the petition schedule property basing on revenue records such as registered gift deed executed by Smt. Sikhakollu Durgamba and her two sons in favour of the 2nd petitioner dated 12.03.1964 and the respondent is claiming right over the same property basing on Exs.R1 to R6. It appears from the material available on record, there is a title dispute between the parties. Title dispute is a mixed question of fact and law, which can be decided by the competent Civil Court after full-fledged trial, but the Tribunal cannot decide the title of the 2 (2014) 2 SCC 269 9 VS,J C.M.A.No.114 of 2019 property in a summary proceedings. Therefore, the present appeal deserves to be allowed. 19) Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the order dated 26.02.2019 passed in O.A.No.447 of 2012 by the Member, A.P. Endowments Tribunal, Amaravathi at Pedakakani, however, with a liberty to the parties to approach the competent Civil Court seeking declaration of their title, if any. No costs. Consequently, miscellaneous applications pending if any, shall also stand closed. __________________ JUSTICE V.SUJATHA 16.04.2026 Gss