1 of 42 A.S.No.16 of 2022
IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE: HANUMAKONDA.
Monday, the 29th day of April, 2024
Present: M. Krishna Murthy,
Principal District Judge,
Hanumakonda.
A.S.No.16 of 2022 and Cross Objections S.R.No.1766 of 2022
BETWEEN:
Hindustan Petroleum Corporation Limited(A Government of India undertaking) Registered Office at 17 Jamshedji Tata Road, Bombay, represented by Chief Regional Manager, Warangal Retailer Regional Office. …Appellant/Defendant in the appeal and respondent/ defendant in the memorandum of cross objections.
And
1. Ghanshyam Sharma, S/o. late Madanlal Sharma, Age: 47 years, Occ: Pujari, R/o. Lashkar Bazar, Hanumakonda.
2. Sri Ram Temple represented by its Trustee and Worshipper Ghanshyam Sharma, S/o. Late Madanlal Sharma, Age: 47 years, Occ: Pujari, R/o. Lashkar Bazar, Hanumakonda.
...Respondents/plaintiffs in the appeal and cross objectors/
plaintiffs in the memorandum of cross objections.
On appeal against the Judgment and Decree dated 30.12.2021 passed in
O.S.No.171 of 1995 on the file of then Principal Senior Civil Judge,
Warangal.
O.S.No.171 of 1995
Between:
1. Ghanshyam Sharma, S/o. late Madanlal Sharma, Age: 47 years, Occ: Pujari, R/o. Lashkar Bazar, Hanumakonda.
2. Sri Ram Temple represented by its Trustee and Worshipper Ghanshyam Sharma, S/o. Late Madanlal Sharma, Age: 47 years, Occ: Pujari, R/o. Lashkar Bazar, Hanumakonda.
...Plaintiffs.
And
Hindustan Petroleum Corporation Limited(A Government of India undertaking) Registered Office at 17 Jamshedji Tata Road, Bombay, represented by Chief Regional Manager, Warangal Retailer Regional Office …Defendant 2 of 42 A.S.No.16 of 2022
This appeal came up before me for final hearing on 25.04.2024 in the presence of Sri T. Mahendra Prasad, Counsel for the appellant/ defendant in A.S and respondent/defendant in the memorandum of cross objections and of Sri B. Mandhani, counsel for the respondents/plaintiffs in A.S and cross objectors/plaintiffs in the memorandum of cross objections, upon perusing the material papers on record, upon hearing arguments and having stood over for consideration to this day this Court made the following:- – C O M M O N J U D G M E N T – 1.01).The above appeal is filed against the judgment and decree
dated 30.12.2021 passed by the learned Principal Senior Civil Judge,
Warangal (for short the trial court). Under the said judgment O.S.No.171 of 1995 was decreed directing the defendant to vacate the plaint schedule property and deliver vacant possession for the same within four months from the said date. The trial court also directed the defendant to pay mesne profits and damages at Rs.1,32,000/- to the second plaintiff for illegal use and occupation of suit premises for the period from 01.06.1993 to 01.06.2004 at the rate of Rs.12,000/- per year and till date with interest at 6 per cent per annum from 01.06.2004 till payment is made.
1.02).The trial court also directed the defendant to pay future damages at the same rate of Rs.12,000/- per year till delivery of possession. The plaintiff was directed to pay remaining court fee on claim of damages before executing the decree. Costs were also awarded under the said decree. Hence, the defendant filed this appeal. The respondents are plaintiffs and they filed the memorandum of cross objections against the findings of the trial court on issue No.5 in the said judgment. Hence, a common judgment is being passed.
3 of 42 A.S.No.16 of 2022 2.01).The brief facts which are necessary to dispose of this appeal are as follows:-The above suit was filed by one Ghanshyam Sharma, i.e., first plaintiff against the defendant for eviction of defendant and delivery of possession of the suit open land and also for a direction to the defendant to pay mesne profits on enquiry for use of occupation for the period from 01.06.1993 till date of suit and future mense profits from the date of suit and delivery of possession with interest and costs. During pendency of the suit Sri Ram Temple represented by first plaintiff was brought on record as second plaintiff as per orders of trial court dated 16.04.2004 in I.A.No.302/2004.
2.02).The case of the plaintiffs in brief as per plaint is as follows:-
The first plaintiff is son of one Madanlal Sharma who is trustee of Sri Ram
Mandir deity, a family deity of said Sri Madanlal Sharma, i.e., second plaintiff situated in premises bearing No.6-1-1. There was lease transaction with the predecessor of defendant then known as CAL
TEX(INDIA) LIMITED(for short caltex) in respect of suit schedule open land and possession was delivered to said caltex on 28.11.1973. The lease expired on 31.05.1993. The right, title and interest of said caltex was transferred and vested in the Central Government by virtue of caltex acquisition of share of Caltex Oil Refining(India) Limited( for short CORIL) by virtue of undertaking of India to caltex Ordinance 1976 since replaced by Act No.17 of 1977 with effect from 09.05.1978. The defendant had been paying rent to the said Madanlal Sharma after his death to the plaintiff.
4 of 42 A.S.No.16 of 2022 2.03).The first plaintiff accepted the rent till expiry of lease period.
The Defendant vide letter dated 06.05.1993 itself without any basis in law and on facts tried to claim right of lease for another 20 years. The first plaintiff in reply dated 21.05.1993 refuted the same and required the defendant to put the first plaintiff in actual possession thereof. The suit property is in prime locality and the market rent prevailing is Rs.50/- per square yard. The plaintiff informed the defendant that it would be liable to pay the amount calculated at the rate of Rs.25/- per square meter for use and occupation from 1.6.1993 till delivery of possession. The defendant denied the prevailing rent at Rs.25/- per square meter per month. The plaintiff is accordingly entitled to mesne profits from 1.6.1993 onwards. Hence, the suit.
2.04).Originally the defendant remained ex parte and after examining P.W.1 and after marking Exs.A-1 to A-5 the suit was decreed with costs on 08.07.1996. Thereafter on 14.11.2002 the suit was restored as per orders of Hon’ble High Court of Andhra Pradesh, Hyderabad dated 11.09.2002 vide CRP No.4019/2002. Under the said orders the trial court was directed to receive the written statement.
2.05).The defendant filed a written statement through its Chief
Regional Manager admitting the execution of lease deed by the father of the first plaintiff in favour of caltex in respect of suit property and also admitting acquisition of share of caltex by the Government of India, denying the other allegations of the plaintiff and materially contending as follows:- The father of the first plaintiff executed the lease deed and got it registered as a Trustee of Sri Rama Temple, Hanamkonda but not as a 5 of 42 A.S.No.16 of 2022 trustee of Sri Ram Mandir a family deity of Sri Madanlal Sharma. The said
Madanlal Sharma after his death, his son, i.e., first plaintiff were collecting the rents from the defendants as trustee of Sri Ram Temple but not in their individual capacity or as a trustee of family deity.
2.06).Sri Ram Temple Hanumakonda is a public temple and it was open to the people of all sects and castes and it was registered as such with the Commissioner of Endowments, Government of Andhra Pradesh.
The suit is liable to be dismissed as it was filed in individual capacity by the first plaintiff. CORIL was amalgamated with H.P.C Limited from 09.05.1978. Hence, the defendant became the tenant in occupation of the suit property by operation of law as per lease deed dated 28.11.1973 and with some additional rights accrued to it as per Act 17 of 1977. The lease period was 10 years with an option for extension for another 10 years.
The defendant/corporation exercised the option before the expiry of initial 10 years period and renewed the lease for further term of 10 years by letter dated 19.01.1983.
2.07).The plaintiff with an ulterior motive sent reply on 21.05.1993 in his individual capacity but not as trustee of Sri Ram Temple challenging the right of the defendant corporation to remain in occupation of site for another 20 years and demanding the defendant to vacate the site. The defendant/corporation sent a detailed rejoinder dated 05.06.1993 to the above said letter through its advocate once again asserting its right to remain in possession of the site. The plaintiff sent reply dated 26.09.1993 claiming the property as absolutely belonging to him in individual capacity 6 of 42 A.S.No.16 of 2022 and demanding the defendant to vacate the premises and also to pay damages at the rate Rs.20,608/- per month for illegal use and occupation of the site from 01.06.1993 and expressed his desire to enter into with dialogue with the defendant/corporation with regard to leased property.
2.08).The plaintiff always insisted the defendant to recognize him as absolute owner of the property and to enter into agreement with him in his individual capacity but not as a trustee of Sri Ram temple and defendant could not agree for the same. The plaintiff is bound by Section 7(3) of Act 17 of 1977 and if he was aggrieved by the same he ought to have challenged the constitutional validity of the provision before the competent court prior to filing of the suit suit. There were property tax dues from 01.10.1990 in respect of the suit site and on failure of the plaintiff to pay the tax dues by the dealer in occupation of the site paid
Rs.6,042/- from 01.10.1990 to 30.09.1993 and on the demand by the
Municipality Warangal it is being paid regularly now also and it was being reimbursed by the defendant to the dealer of the outlet.
2.09). The plaintiff quoted imaginary rental rates. The defendant disputed the right of plaintiff to claim mesne profits from 01.06.1993 at the rate quoted by him. The plaintiff is entitled only to the rent at the rate specified in the lease deed or at the rate agreed upon mutually between him and trustee of Sri Ram Temple and the corporation. The plaintiff is neither entitled to be put in actual possession of the site nor to claim damages from 01.06.1993 as the defendant is entitled to be in lawful possession of the suit site for 20 years from 01.06.1993. There is no 7 of 42 A.S.No.16 of 2022 cause of action to file the suit and court fee paid is insufficient in view of the rate of rent quoted by the plaintiff. The suit is false, frivolous and vexations in nature having been filed by the person who had no competency to file the same and hence, deserves to be dismissed with exemplary costs.
2.10).On the above pleadings the following issues settled for trial:-
1. Whether the plaintiff is entitled to vacant possession of suit land after evicting the defendant therefrom ?
2. Whether the plaintiff is entitled to mesne profits as claimed by plaintiff ?
3. Whether the plaintiff has no right to file the suit in his personal capacity ?
4. Whether the defendant became the tenant in occupation of suit schedule property by operation of law ?
5. To what relief ?
2.11).The first plaintiff got examined himself as P.W.1 and got exhibited Exs.A-1 to A-8. On behalf of the defendant D.Ws.1 to 3 were got examined and Exs.B-1 to B-16 were got exhibited. Later the trial court after hearing both sides decreed the suit with costs directing the defendant to vacate the premises within four months and to deliver the vacant possession to the second plaintiff. The trial court originally also directed the defendant to pay mesne profits of Rs.1,32,000/- to the second plaintiff for illegal use and occupation of suit premises from 01.06.1993 to 01.06.2004 at the rate of Rs.12,000/- per year with interest 8 of 42 A.S.No.16 of 2022 at 6 per cent per annum from the date of decree till payment and also direct the defendant to pay the future damages at the rate of Rs.12,000/- per year till delivery of possession. The trial court also directed the plaintiffs to pay the remaining court fee on the claim of damages before executing the decree.
2.12).Thereafter, as per judgment dated 12.03.2007 in
A.S.No.137/2004 passed by the then learned IV Additional District Judge,
Warangal the suit was remanded for fresh assessment of the evidence and for considering the legal pleas taken by the defendant. The defendant before the appellate court sought for amendment of written statement for taking plea that the present suit was barred under Order 2,
Rule 2, C.P.C by the dismissal of earlier suit for injunction and defendant also filed application to receive the document and as those applications were allowed the matter was remanded by the above said appellate court.
After remand D.W.4 was examined and Exs.X-1 to X-5 were got exhibited.
During pendency of the suit the plaintiffs challenged the above said remind order before Hon’ble High court and by filing C.M.A No.535/2007 and it was dismissed.
2.13).Thereafter, the plaintiffs approached the Hon’ble Supreme
Court by filing S.L.P. The said S.L.P was also dismissed. Later the plaintiffs filed an application under Order 6, Rule 18, C.P.C in I.A.No.603/2021 for not permitting the defendant to make amendment of written statement as ordered by the above said appellate court. The said application was allowed by the trial court on 30.12.2021 and on the same day the 9 of 42 A.S.No.16 of 2022 judgment under appeal was passed. Thereafter the trial court passed the judgment and decree under appeal as stated above.
3.01).Aggrieved by the said judgment the above appeal was filed by the defendant mainly contending as follows in the grounds of appeal while referring to pleadings and evidence on both sides in the main suit and judgment of the trial court:- The trial court failed to appreciate the oral and documentary evidence on record. The trial court did not hear arguments and passed judgment simply reproducing the judgment passed by the trial court on 02.07.2004 which was set aside in A.S.No.137/2004.
The trial court committed patent error by denying the opportunity to the defendant to submit arguments in clear violation of the principles of natural justice and rules of the Code of Civil Procedure. The trial court did not frame appropriate issues after remand of the suit by the then IV
Additional District Judge, Warangal.
3.02).It is clear case of the defendant that actually Sri Rama Temple taken over and being run by the single trustee appointed by Government is different from Sri Ram Mandir as claimed by the first plaintiff, worshipper and trustee, i.e., Ghanshyam Sharma but the trial court did not frame issue on that fact. The trial court erred in not recording any findings on that point. The trial court failed to appreciate that the Sri Ram
Temple, Hanamkonda was a public temple thrown open to people of all castes, creed and sects and which was registered with the Commissioner of Endowments, Government of Andhra Pradesh and therefore, the first plaintiff had no right to file and maintain the suit in his individual capacity 10 of 42 A.S.No.16 of 2022 without permission from the competent authority of the Endowments
Department. The management of Sri Ram Temple including the suit schedule property was taken over by the Endowments Department,
Government of Andhra Pradesh(for short A.P) for its better administration and safeguarding the temple properties as per order dated 11.10.1994 passed by the Assistant Commissioner(for short A.C), Endowments
Department and the trial court failed to appreciate the same.
3.03).The trial court also failed to appreciate that on 04.11.1994
Regional Joint Commissioner(for short R.J.C), Endowments Department dismissed the revision petition in R.P.No.87/1994 filed against the said orders dated 11.10.1994. The appeal against the said orders of R.J.C
dated 04.11.1994 was also dismissed on 14.03.1997 before Principal
Secretary, Government of A.P. Therefore, the orders of A.C dated 11.10.1994 attained finality and hence, the plaintiff had no right over the suit property. As the subject institution was brought under the management and control of Endowments Department, P.W.1 had no locus standi to maintain the suit for delivery of possession either in his personal capacity or as hereditary trustee of Sri Rama Temple. The trial court wrongly placed reliance on orders in W.P.No.12647/2003 without marking it as exhibit.
3.04).The trial court erred in holding that Hon’ble High Court set aside orders of Deputy Commissioner(short D.C) in appointing a single trustee for management of the temple and directed D.C to dispose of the
O.A.No.76/1995. The subject W.P.No.12647/2003 only decided the rights 11 of 42 A.S.No.16 of 2022 of the parties inter se each other who are before Hon’ble High Court and it had no bearing on the present lis or the lis between P.W.1 and the
Endowments Department. The orders of Hon’ble High court in the above said W.P did not specifically set aside the proceedings carried out by the
Endowments Department in the instant case and hence, it had no bearing on the same. The dispute whether the temple properties were private properties or belonging to the Endowments Department is still pending.
3.05).The Principal Secretary to the Government of A.P vide
G.O.No.404 dated 14.03.1997 clearly held that the institution was undoubtedly under the purview of the Endowments Department and father of plaintiff had no ground to object to the appointment of single trustee by the Endowments Department but the trial court failed to appreciate the above said aspects. The trial court erred in holding that the corporation was estopped from denying the ownership of P.W.1 over the suit property having agreed that P.W.1 was trustee of the temple and having paid rents for considerable period of time. The trial court failed to appreciate that a tenant was not debarred from raising a defense that the title of the landlord was lost or defeated or had ended by operation of law.
The claim of P.W.1 ended by an appointment of single trustee by the
Endowments Department and therefore, he was no longer a trustee of Sri
Rama Temple.
3.06).The trial court erred in holding that actually the Endowments
Department took possession of the suit property through process of law.
The defendant is liable to pay the rents or mesne profits to the second 12 of 42 A.S.No.16 of 2022 plaintiff only. The trial court failed to appreciate that the Endowments
Department had already taken possession of the Sri Rama Temple and its property by virtue of previously mentioned orders and that the defendant corporation was already continuously and regularly paying monthly rentals to the Endowments Department for the same. The trial court ought not to have allowed I.A.No.302/2004 in the facts and circumstances of the case. The trial court failed to observe whether the first plaintiff was still the worshipper and trustee of Sri Rama Temple in view of the appointment of single trustee by the Endowments Department.
3.07).The trial court failed to appreciate that the claim made by the plaintiffs that the trustee appointed by Endowments Department had not taken charge was incorrect. The trial court failed to appreciate that the subject suit was bad for non-joinder of necessary party as it already that the Endowments Department was not party in this suit. Without bringing the Endowments Department on record as party to the case lis could not be decided at all. The trial court failed to appreciate that it had power under Order 1, Rule 10, C.P.C to order suo motu that the name of any person who ought to have been joined either as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit be added.
3.08).The trial court failed to peruse the additional written statement of defendant on the basis of which either it ought to have ordered to implead
Endowments Department as a necessary party for proper adjudication of the suit or dismissed the suit for non-joinder of necessary party. The trial court 13 of 42 A.S.No.16 of 2022 erred in holding that P.W.1 was entitled for vacant possession of the property after evicting the defendant and the defendant was liable to pay mesne profits or damages to the tune of Rs.1,32,500/- to the second plaintiff for illegal use and occupation of the suit premises from 01.06.1993 to 01.06.2004 at the rate of Rs.12,000/- per year and also to till date along with interest at 6 per cent per annum from 01.06.2004 and until date of payment.
3.09).The trial court failed to appreciate that the Endowments
Department already taken possession of the Sri Rama Temple and its properties by virtue of previously mentioned order and that the defendant corporation was already continuously and regularly paying monthly rental to the Endowments Department for the same. The trial court erroneously granted final decree for mesne profits in favour of second plaintiff without holding an enquiry as contemplated under law. The trial court should have passed only preliminary decree even assuming but not admitting that the second plaintiff is entitled for such mesne profits instead of final decree. The trial court failed to observe that the second plaintiff did not lead any cogent evidence on the claim of mesne profits. The trial court failed to appreciate that the suit deserved to be dismissed for want of jurisdiction as it was hit by the provisions of the Telangana Charitable and Hindu Religious Institutions and Endowments Act, 1987(for short the Act of 1987).
3.10).The trial court erred in interpreting Section 7 of the Caltex (Acquisition of Shares of CORIL and the undertakings of India of Caltex (India)
Limited) Act, 1977 and came to untenable conclusions. The trial court failed to appreciate and apply the principles of law laid down by the Hon’ble 14 of 42 A.S.No.16 of 2022
Supreme Court in Bharat Petroleum Corporation Limited v. P. Kesavan and others(A.I.R 2004 SC 2206). The trial court also failed to appreciate that the corporation apart from having a right for renewal of lease as mentioned in the lease deed also had a statutory right to renewal of lease for a further period of twenty years from 01.06.1993 onwards by virtue of
Section 7(3) of CORIL and for undertakings in India of Caltex (India) Limited
Act, 1977. The trial court in spite of holding that Hon’ble Supreme Court in the above said decision clearly held that in the event, the corporation desires to renew the lease, the same would be renewed on the same terms and conditions on which the lease was held by the previous company, failed to provide relief to the defendant.
3.11).The trial court erred in interpreting the judgment of Hon’ble High court of A.P in Mustafa Hussain v. Union of India (A.I.R 1981 A.P 283) and holding that it does not mean that the corporation is entitled to continue in the demised premises forever as per Section 7(3) of the Act, 1987. The trial court failed to appreciate that the defendant never canvassed the plea of perpetual lease, much-less the right to be in possession beyond 2013.
3.12).The trial court ought to have declared that the plaintiffs did not have title and right over the suit property by operation of law and it ought to have seen that on a correct interpretation of the relevant statutory provision of the aforesaid Acts no decree for ejectment could be passed against the defendant. The trial court ought to have declared the alleged notice to quit and hand over vacant possession as against law and not enforecable. The trial court failed to appreciate that the first plaintiff alone was not only legal 15 of 42 A.S.No.16 of 2022 heir of his father late Madanlal Sharma and therefore, the suit was bad for non-joinder of other legal representatives of late Madanlal Sharma.
3.13).The trial court omitted to consider the admitted fact of filing of earlier suit in O.S.No.554/1994 by the plaintiffs which was dismissed as not pressed. Therefore, the present suit O.S.No.171/1995 is barred by Order 2,
Rule 2, C.P.C. The trial court failed to consider and take on record the application filed by the defendant under Order 7, Rule 11, C.P.C and it returned the same thereby causing grave injustice to the defendants.
3.14).The trial court completely erred in declaring that the judgment and decree in C.M.A No.535 of 2002 on the file of Hon’ble High court of
Telangana passed against the plaintiffs and the order of Hon’ble Supreme
Court dismissing S.L.P NO.13664/2021 against the plaintiffs had become redundant. The trial court failed to appreciate that it had no jurisdiction to sit upon the orders and judgments of the Hon’ble Supreme Court and Hon’ble
High Court. Hence, the judgment of trial court is perverse and such finding was without any pleading, issue and evidence by the plaintiffs.
3.15).The trial court erred in not declaring that the plaintiffs were not entitled to file I.A.No.603/2021 under Order 6, Rule 18, C.P.C in view of their conduct and acquiescence and orders of Hon’ble High court and Hon’ble
Supreme Court. The trial court erred in not declaring that the plaintiffs estopped to challenge the orders of Hon’ble High Court and Hon’ble Supreme
Court. The trial court erred in its findings on issues No.1 to 4 for being against the law and completely perverse, considering the subsequent events.
The findings of trial court on issue No.3 are perverse, illegal, arbitrary and 16 of 42 A.S.No.16 of 2022 without any basis and record and the trial court failed to consider the admissions made by P.W.1 in his evidence and Exs.B-1 to B-16 in their proper perspective.
3.16). The trial court erroneously gave credence to Exs.A-2 to A-7 under wrong notion. The trial court failed to take into consideration about the fact of rejection of claim of mesne profits and the respondents suppressed the fact of filing A.S.No.95/2009 before the District Court for mesne profits.
Thus, the plaintiffs are guilty of suppression of facts during entire proceedings and they cannot invoke jurisdiction of different courts for same relief. The trial court erred in not going through the written notes submitted by the defendants and the authorities cited therein. The trial court failed to consider the additional written statement of defendants and also the grounds of appeal in A.S.No.137/2004.
3.17).The trial court failed to frame additional issues basing on
additional written statement of defendants and it resulted in miscarriage of
justice. The trial court failed to give time and opportunity to submit arguments and hurriedly decreed the suit without going through the entire suit record. The trial court erred in not posting the suit for evidence of the defendant as per remand order in A.S.No.137/2004. Hence, the appeal may be allowed.
4). In the memorandum of cross objections it is mainly contended by the plaintiffs that the trial court ought to have found that Ghanshyam
Sharma was heir of Madanlal Sharma entered into lease as successor in interest and hence, entitled to decree as prayed for, that no enquiry was 17 of 42 A.S.No.16 of 2022 conducted in respect of issue No.5, that the defendant was estopped under
Section 116 of Indian Evidence Act from denying the title of the cross objector to the suit property so long as it continues in possession as lessee and that therefore, the cross objection may be allowed by setting aside the findings and observations made by the trial court while deciding issue No.5.
5).The defendant filed counter to memorandum of cross objections of the plaintiffs mainly contending as follows:- The cross objector has no locus standi to file objections, cross objections cannot be filed as finding on issue No.5 is only the consequential order basing on the findings on other issues. The cross objector claimed ownership over the property suppressing the facts and on coming to know of actual ownership with Endowment
Department. The defendant is having every right to dispute the claim of ownership by the cross objector as the title is now vesting with Endowment
Department. The order of dismissal in A.S.No.95/2009 operates as res judicata. The cross objector has not furnished any material and adduced any oral evidence in respect of issue No.5, i.e., to what relief ?. No arguments were submitted by the parties in the trial court in the suit after remand.
6).The cross objector did not plead before the trial court for holding enquiry on any point and no petition was filed in that context. The contents of para No.2 in the cross objections did not disclose as to on what point the cross objector wanted enquiry by the trial court. The cross objections are barred by limitation. The cross objector failed to pay necessary court fee for which cross objections are filed. Hence, the cross objections may be dismissed.
18 of 42 A.S.No.16 of 2022 7.01).Heard both sides and perused the record.
7.02).On behalf of the defendant it is mainly contended as follows while referring to pleadings of both sides in the main suit, judgment of the trial court and grounds of appeal:- There is no compliance of remand order by the trial court. Judgment under appeal is replica of earlier judgment. The judgment was passed on the same day of allowing I.A under Order 6, Rule 18,
C.P.C. Arguments of defendant were not heard. No notice under Section 106 of Transfer of Property Act(for short T.P.Act) was issued though the relief was for eviction. Ex.A-2 is not quit notice. Temple is the lessor and not individual.
Advance of Rs.6,000/- was kept with the lessor. Title dispute of 1968-1969 was suppressed. Earlier suit O.S.No.554/1994 for injunction was dismissed as not pressed and that fact was suppressed.
7.03).Interlocutory application in O.A No.76/1995 filed under Section 97 of the Endowment Act was dismissed by the tribunal and it was confirmed by the commissioner. C.M.A No.54/2008 against orders of commissioner was returned by II Additional District Judge, Warangal for want of jurisdiction.
Then the writ petition was filed and it was disposed of directing disposal of main O.A. The main O.A was disposed of on 15.03.2008 holding that the temple was public temple. The Commissioner confirmed the same on 02.05.2008. Civil court had no jurisdiction to decide the suit. It is only rent controller that had jurisdiction as property is described as land bearing municipal number. Rent is being deposited every month into account of
Endowment Department. Additional issues were not framed after filing
additional written statement and rejoinder. Section 116 of Evidence Act does
19 of 42 A.S.No.16 of 2022 not apply to the defendant. Hence, the appeal may be allowed and cross objections may be dismissed.
7.04).On the other hand on behalf of the respondents it is mainly contended as follows while referring to pleadings and evidence of both sides on record in the main suit, judgment of the trial court, grounds of appeal and cross objections:- Suit is filed for eviction of tenant under Section 111(a) of
T.P.Act. As per Section 108(q) the lessee is bound to put the lessor in to possession on determination of lease. As per Ex.A-1 clause 1 in page No.2 and page No.5(h) it is only contractual liability and hence, Section 106 of
T.P.Act does not apply. No plea regarding Order 2, Rule 2, C.P.C and under
Order 2, Rule 4, C.P.C title need not be and cannot be asked because of the nature of suit. Section 116 of Evidence Act applies.
7.05).After remand the defendant got examined as D.W.4 but the document was not got marked though the petition to receive document was allowed in respect of copy of plaint in the earlier suit. Remand was made after allowing amendment of written statement and to receive document and for fresh assessment of evidence. As written statement was not amended and as no additional evidence was produced the judgment of the trial court was correct as it could not have given a different finding than earlier one on the basis of same pleadings and evidence. The lease was for ten years and it was extendable with option only for once. As per Act 17 of 1977 lease can be extended for one year. Section 73 of Contract Act and Section 108 to 111(a) of T.P.Act were violated. Direction to deliver possession to second plaintiff is against findings of the trial court on issue Nos.1 and 2 20 of 42 A.S.No.16 of 2022 7.06).Endowment Department was not party to the suit. Hence, it cannot be questioned that plaintiffs had no right as temple is endowment.
The trial court did not conduct enquiry for deciding the mesne profits and straightaway granted the same though there was a prayer for ordering enquiry. Hence, the appeal may be dismissed and cross objections may be allowed.
8).The points that arise for determination are:-
(i)Whether the plaintiffs are entitled for delivery of vacant possession and for mesne profits after enquiry as prayed for ?
(ii)Whether the judgment of the trial court is proper and legal ?
(iii)Whether the appellant/defendant is entitled for setting aside the judgment under appeal as prayed for ?
(iv)Whether the plaintiffs are entitled for setting aside the findings and observations of the trial court while deciding issue No.5 in the judgment under appeal as prayed for in the cross objections ?
(v)To what relief ?
9).Points No.(i) to (iv):- P.W.1, the first plaintiff deposed generally in support of case of the plaintiffs. He further deposed about
Exs.A-1 to A-7. Ex.A-1 is certified copy(for short C.C) of lease deed dated 28.11.1973. Ex.A-2 is C.C of letter dated 21.05.1993 addressed by first plaintiff to defendant demanding to vacate the suit property. Ex.A-3 is letter dated 06.05.1993 addressed by the defendant to plaintiffs exercising their right to renew the lease for further period of 10+10=20 21 of 42 A.S.No.16 of 2022 years commencing from 01.06.1993 on the same terms and conditions.
Ex.A-4 is reply letter of defendant dated 05.06.1993 stating that the demand made on Ex.A-3 to vacate the premises cannot be complied.
Ex.A-5 is office copy of letter dated 26.09.1993 addressed to defendant for returning of four cheques mentioned in the same as there was no lease agreement from 01.06.1993. Exs.A6 and A-7 are postal acknowledgments of defendant.
10).In cross examination of P.W.1 Exs.B-1 to B-4 were got marked on behalf of the defendant. Ex.B-1 is C.C of order dated 11.10.1994 passed by A.C Endowments appointing Sri B. Papi Reddy as Executive
Officer of single trustee of Sri Ram Mandir and Sri Jagadish Mandir. Ex.B-2 is C.C of grounds of appeal filed by P.W.1 against the orders under original of Ex.B-1. Ex.B-3 is C.C of order dismissing the appeal covered by Ex.B- 2.Ex.B-4 is G.O.Rt.No.404 dated 14.03.1997 dismissing revision filed by the plaintiffs against revision before the Government against orders covered by Ex.B-3.
11).D.W.1, Senior Regional Manager of defendant-corporation deposed in support of case of the defendant and further deposed about
Exs.B-5 to B-16. Ex.B-5 is lease deed executed in between father of first plaintiff and Caltex (India) Limited on 28.11.1973. Ex.B-6 is letter from defendant addressed to first plaintiff for exercising option for ten more years. Ex.B-7 is postal acknowledgment for Ex.B-6. Exs.B-8 to B-16 are property tax receipts.
22 of 42 A.S.No.16 of 2022 12).D.W.2 is one Ch. Madan Mohan and he filed evidence affidavit stating that he is managing partner of registered partnership firm running the retail out let in the name and style of M/s.Vishweshwara Service
Station installed by the defendant-corporation and he supported the case of the defendant. D.W.3 is A.C of Endowments Department, Warangal. He deposed that he was summoned by the court and that he produced Exs.X- 1 to X-5. Ex.X-1 is copy of revision petition filed by first plaintiff before
Commissioner of Endowments in 1968. Ex.X-2 is copy of affidavit filed by the first plaintiff/revision petitioner in the said revision under Ex.X-1. Ex.X- 3 is true photo copy of order passed by J.C Endowments,Hyderabad on 12.03.1969 in R.P.No.156/1968. Ex.X-4 is letter dated 27.02.1997 addressed by A.C to Commissioner of Endowments for submitting administration report in respect of Sri Ram Mandir. Ex.X-5 is letter addressed by D.C addressed to M/s.Vishweshwara Service Station,
Hanumakonda on 25.03.1997 informing to deposit rents in bank pending disposal of O.A and R.P before the Government.
13).D.W.4 stated that he is working as executive sales officer in defendant-corporation from June, 2006.
14).Before analyzing the entire evidence on record it is necessary to refer to the various authoritative legal pronouncements cited on both sides.
15).On behalf of the the appellant/defendant the following judgments were cited:-(i) S.A.A.Annamalai Chettiar v. Molaiyan and others(A.I.R 1970 Madras 396):- From this judgment it is clear that the 23 of 42 A.S.No.16 of 2022 estoppel contemplated by Section 116 of the Evidence Act is restricted to the denial of title at the commencement of the tenancy and by implication, it follows that a tenant is not estopped from contending that the landlord had no title before the tenancy commenced or that the title of the lessor has since come to an end. It is contended for defendant relying on this judgment that the plaintiffs lost title in view of dismissal of
O.A.No.76/1995 and the rents are being deposited before the commissioner of endowments and it is a subsequent development. The defendant can deny the title of the plaintiffs and Section 116 of the
Evidence act does not apply to the defendants in this case.
(ii)Teki Venkata Ratnam and others v. Deputy
Commissioner, Endowment and others(A.I.R 2001 Supreme Court
2436):- From this judgment it is clear that the Deputy Commissioner of endowment can take decision as to character of temple not-withstanding decree passed by District court in view of the over riding effect given to 1987 Act under Section 87 of the said Act.
(iii)Kshitish Chandra Bose v. Commissioner of Ranchi (A.I.R 1981 Supreme Court 707):- From this judgment it is clear that interlocutory application can be challenged in appeal from final order.
The learned counsel for defendant also referred to Section 7(3) of the Act 17 of 1977 to contend that the lease can be renewed if so desired by the Central Government on the same terms and conditions on which the lease or tenancy or arrangements was originally granted or entered into.
24 of 42 A.S.No.16 of 2022 16).On behalf of the plaintiffs the following judgments were relied upon in support of their contentions:-(i) M. Vijayalaxmi v. G.
Goverdhan Reddy ((1997) 11 Supreme Court Cases 358):- From this judgment it is clear that if the tenancy was for a fixed period and if it came to an end by efflux of time, no notice for terminating the tenancy under Section 106 of Transfer of Property of Act was required for the purpose of filing the suit after the period of lease fixed. It is also clear from this judgment that if it was mentioned in the notice that by the notice the tenancy had been terminated from the date of notice it could be regarded as a notice indicating that the tenancy would not be continued after the term of the tenancy comes to an end.
(ii)M/s. Hindustan Petroleum Corporation Limited v.
Devaraj Chordia and others (2005-2L.W.355):- From this judgment it is clear that rule of law prevails and Public Sector Undertakings are subordinates to law and not above the law. In this judgment it was observed that the appellant/H.P.C.L being a Public Sector Undertaking blatantly violated the law and continued in possession of the suit property for 16 years beyond the term of its lease. In the said case before Hon’ble
High Court of Madras the appellant continued in possession even after the expiry of the period of lease. It is also clear from this judgment that appellant cannot continue in possession against law after expiry of lease period.
(iii)Union of India and others v. Nallapaneni Lakshmi
Kumari (2011 (1) A.L.D 329):- From this judgment it is clear that if 25 of 42 A.S.No.16 of 2022 there was no reference to any plea of bar of suit under Order 2, Rule 2,
C.P.C in the written statement either directly or indirectly, earlier suit for recovery of possession cannot be construed as barring subsequent suit for recovery of difference in rent and damages for the damage caused to the building and mental agony.
(iv)Chandra Kishore Jha v. Mahavir Prasad and others ((1999) 8 Supreme Court Cases 266):- From this judgment it is clear that if a statute provides for a thing to be done in a particular manner then it has to be done in that manner and in no other manner.
(v) Bansraj Laltaprasad Mishra v. Stanley Parker Jones ((2006) 3 Supreme Court Cases 91):- From this judgment it is clear that Section 116 of Evidence Act enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time. It is further clear from this judgment that a person who comes upon any immovable property by the licence of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at the time when such licence was given. Therefore, it is clear from this judgment the possession of lessee is relevant in a suit for eviction and title is not relevant in view of Section 116 of Evidence Act.
(vi) Bokka Sreeramulu v. Kalipatnapu Venkateswar Rao and another ( 1958 SCC online AP 280)= (AIR 1959 AP 92):- From this judgment also it is clear that a person inducted under the term of the contract cannot be permitted to rely on the defect in title of landlord to his 26 of 42 A.S.No.16 of 2022 advantage or to perpetuate his possession or to act in detriment to the landlord’s right. It is also clear from this judgment that if the person who put the lessee in possession had full title and if he was in actual possession and enjoyment of the law at the time of tenancy in view of both the clauses of Section 116 of the Evidence Act his title cannot be questioned by the lessee subsequently.
(vii)Union of India v. Pramod Gupta (dead) by L.Rs and others((2005) 12 Supreme Court Cases):- From this judgment it is clear that Order 6, Rule 18, C.P.C is mandatory provision and if it is not complied with the consequences flowing therefrom shall ensue. This judgment is useful to contend that if an amendment of written statement was not done within the time under Order 6, Rule 18, C.P.C it cannot be permitted to be amended later.
(viii)Southern Ancillaries Private Limited represented by its
Managing Director S. Sadasivam v. Southern Alloy Foundaries
Private Limited represented by its Managing Director(2003 SCC
Online Madras 254)=(A.I.R 2003 Madras 416):- From this judgment also it is clear that if the defendant failed to carry out amendment in the written statement the court should consider the claims of the defendant only on the basis of the unamended written statement of the defendant.
In this case before Hon’ble High Court of Madras what happened was that after ordering the amendment, the court straight away heard the arguments on 28.10.1987 and on subsequent days and the judgment was ultimately delivered on 03.02.1988. In those circumstances Hon’ble High 27 of 42 A.S.No.16 of 2022
Court held that it would not accept the submission of the counsel for appellant that the counter-claim cannot be filed subsequent to the filing of the written statement Hon’ble High Court of Madras further observed that it should not consider the counter-claim made by the defendant inasmuch as the amendment application was filed by the defendant purporting to include the prayer for counter-claim after recording the evidence of both sides. In this case it is clear that though the petition for amendment for written statement to include some paras regarding counter-claim it was not made within the time and hence, it was observed that the trial court should have considered the claims of the defendant only on the basis of unamended written statement of the defendant.
(ix)Menakuru Dasaratharami Reddy and another v.
Duddukuru Subba Rao and others ( 1957 SCC Online SC 19)=(A.I.R
1957 S.C 797):- From this judgment it is clear that the principles of
Hindu Law applicable to the consideration of questions of dedication of property to charity are well settled and dedication to charity need not necessarily be by instrument or grant and that it can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of private secular character of the property and its complete dedication to charity.
It was further held in this judgment that now it is clear that dedication of a property to religious or charitable purposes may be either complete or partial, that if the dedication is complete, a trust in favour of public religious charity is created, that if the dedication is partial, a trust 28 of 42 A.S.No.16 of 2022 in favour of the charity is not created but a charge in favour of the charity is attached to, and follows, the property which retains its original private and secular character.
It was further held in this judgment that whether or not dedication is complete would naturally be a question of fact to be determined in each case in the light of the material terms used in the document, that in such cases it is always a matter of ascertaining the true intention of the parties and that it is obvious that such intention must be gathered on a fair and reasonable construction of the document considered as a whole.
It was also held in this judgment that the use of the word "trust" or "trustee" is no doubt of some help in determining such intention; but the mere use of such words cannot be treated as decisive of the matter. It was further observed in this judgment that the answer to the questions “is the private title over the property intended to be completely extinguished ? Is the title in regard to the property intended to be completely transferred to the charity ?” can be found not by concentrating on the significance of the use of the word "trustee" or "trust" alone but by gathering the true intent of the document considered as a whole.
It is also clear from this judgment that in some cases where documents purport to dedicate property in favour of public charity provision is made for the maintenance of the worshipper who may be a member of the family of the original owner of the property himself and in such cases the question often arises whether the provision for the maintenance of the manager or the worshipper from the income of the 29 of 42 A.S.No.16 of 2022 property indicates an intention that the property should retain its original character and should merely be burdened with an obligation in favour of the charity.
(x)R.M.Sundaram alias Mennakshisundaram v. Sri
Kayarohanasamy and Neelayadhakshi Amman Temple(Through its
Executive Officer) Nagapattinam, Tamil Nadu (2022 SCC Online SC
888):- In this judgment the judgment of Hon’ble apex Court in Deoki
Nandan v. Murlidhar and Others(AIR 1957 SUPREME COURT 133) was referred to and in the said judgment five judges of Hon’ble Supreme Court held as follows:-“the true beneficiaries of religious endowments are not the idols but the worshippers and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty.
The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.
30 of 42 A.S.No.16 of 2022
(xi)Yogesh Kumar and others v. M/s. Bharat Petroleum
Corporation Limited and others (A.I.R 1990 Supreme Court 2216):-
In this judgment it was held that no objection certificate granted under
Rule 144 of Petroleum Rules 1976 can be cancelled wherever the licensee ceases to have any right to use the site for storing petrol and that right could be lost by a licensee either by his tenancy or right to the use of the site coming to an end or for any other reason whereby, in law, the right to use the site for storing petrol ceases.
xii)H.P.C.L and another v. Dolly Das ((1999) 4 SCC 450):- In this judgment it was held that the renewal of lease can be made only for one term.
(xiii)Sampath Kumar v. Ayyakannu and another ((2002) 7
Supreme Court Cases 559):- From this judgment is clear that the amendment of pleading incorporation relates back to the date of the suit but court can direct otherwise. Relying on this judgment is contended that the amendment regarding bringing on record the second plaintiff relates back to the date of suit.
(xiv) Rameshwar Lal Sharma v. Sardar Amrik Sing(A.I.R 1974
Patna 195):- From this judgment it is clear that in a suit for eviction of tenant the court is not bound to decide the question of title if the tenancy is established.
(xv)Villuri Subba Rao and others v. Sri Karyasiddeswara
Swamy Vari Temple, Dhinnayagudem represented by Fit-person
and Executive Officer and others(1989 SCC Online A.P
31 of 42 A.S.No.16 of 2022 508)=((1990) 1 An.W.R 313):- From this judgment it is clear that when the suit involves the determination of title to the property and if defendant contends that the suit property is his ancestral property or that he had prevented title to the property by adverse possession the suit is cognizable by the civil court as there is no provision in the Endowment
Act, 1966 taking away the jurisdiction of the civil court.
(xvi) Prataprai N. Kothari v. John Braganza((1999) 4
Supreme Court Cases 403):- From this judgment it is clear that when there is no plea or issue of a particular question no evidence whatever is admissible regarding the same.
(xvii) Babulal Satanalika v. Satya Narain Agarwalla and others((1996) 1 Call LT 468):- From this judgment it is clear that once the rents are proved under which the tenant allegedly claimed to have made payment subsequently it is not open to him to deny the title of the landlord and set up ownership in favour of another and such conduct is hit by the doctrine of estoppel under Section 116 of the Evidence Act. From this judgment it is also clear that under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant and it is therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such.
(xviii) Sri Ram Pasricha v. Jagannath and others ((1976) 4
Supreme Court Cases 184):- From this judgment also it is clear that a tenant cannot deny that landlord had title to the premises at the commencement of the tenancy and the question of title to the leased 32 of 42 A.S.No.16 of 2022 property is irrelevant in a suit between landlord and tenant and it is therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such.
(xix) Ali Jafar and others v. Hindustan Petroleum
Corporation Limited, Mumbai and others(2003 (6) A.L.D) 149):-
From this judgment it is clear that even a writ petition is also maintainable under Article 226 of the Constitution of India for getting the respondent/H.P.C.L vacated the premises leased out to it for not paying the rents and the petitioner cannot be driven to civil court.
(xx)A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu
Madalaya Nandhavana Paripalanai Sangam represented by its
president and others((2012) 6 Supreme Court Cases 430):- From this judgment it is clear that if abuse of process is made and undue benefits are derived by unscrupulous litigants from frivolous litigation restitutionary costs can be imposed.
(xxi) V.N.Krishna Murthy and another v. Ravikumar and others(2020 SCC Online SC 664)=(2020(9) SCC 501):-From this judgment it is clear that by decree and appeal has to be preferred by a person who is aggrieved by the decree or who is bound by the decree or who is prejudicially affected by it.
(xxii) Kshitish Chandra Bose v. Commissioner of Ranchi ((1981) 2 Supreme Court Cases 103):- From this judgment it is clear that if judgment of appellate court remanding the case to the Additional 33 of 42 A.S.No.16 of 2022
Judicial Commissioner was clearly without jurisdiction the order of remand and all proceedings thereafter would become void ab initio.
(xxiii) Sankara Pillai and others v. Mathunni Ittiera and another (A.I.R 1958 Kerala 245):- From this judgment it is clear that if the suit was doubtless premature when it was brought but since the mortgage has now become redeemable it would be unnecessary and unjust to drive the plaintiff to a separate suit and to mitigate hardships of this kind and shorten litigation, it is open to a court to take note of subsequent events in granting relief provided the substantive rights of the parties are unaffected.
17).Now this court proceeds to analyze the evidence on record keeping in view the above said contentions of both sides and the authoritative legal pronouncements cited on both sides referred to above.
18).P.W1 admitted that it is not mentioned in the lease deed Ex.
A-1 that Sri Ram Temple is their private temple and that he filed the suit in his individual capacity but not as trustee of the said temple. P.W.1 denied the suggestion that the defendant started paying rents to him on his representation that he is trustee of the said temple. He added that the rents are paid to him as he is owner of the property. He denied that the defendant never treated him as owner of the leased property. P.W.1 admitted that he did not file the proceedings pertaining to proceedings filed by him before the Hon’ble High Court against Ex.B-4 under which the revision petition was filed by him against the dismissal of their appeal
before Regional Joint Commissioner Endowments. He denied the
34 of 42 A.S.No.16 of 2022 suggestion that the defendant is entitled to continue as tenant in the schedule property for 20 years from 01.06.1993 under Section 7(3) of the
Act 17 of 1977.
19).It is elicited from P.W.1 that the injunction suit was dismissed by the court, that he filed the suit against the Chief Divisional Manager and the dealer Ch. Madan Mohan Rao(D.W.2) and it was dismissed for default. But on that ground itself it cannot be said that this suit is barred by Order 2, Rule 2, C.P.C. This is for the reason that P.W.1 did not prosecute the suit against D.W.2 and another as constructions were stopped.
20).The defendant though permitted to take plea regarding earlier suit of plaintiff and barring of present suit, failed to make necessary amendments. Hence, the defendant cannot take any advantage of said fact of dismissal of earlier suit.
21).D.W.1 admitted that he had no personal knowledge of the facts. Admittedly, fresh lease deed was executed for the renewal period commencing from 01.06.1983 and P.W.1 was receiving rents on death of his father Madanlal Sharma and cheques towards payments of rents were drawn in favour of P.W.1. D.W.1 further admitted that after expiry of lease under Ex.A-1, i.e., 01.06.1983 the defendant did not address the plaintiff for execution of lease deed informing its readiness to bear the expenses. D.W.1 admitted that P.W.1 returned the cheques towards rents from 01.06.1993 and intimated that he was not willing for renewal of lease from 01.06.1993. It is also admitted by D.W.1 that under Section 7(3) of the Act lease can be extended only once by exercising option.
35 of 42 A.S.No.16 of 2022 22).D.W.2 admitted that there is no documentary evidence or correspondence to show that their company instructed him to contact the plaintiff for entering into a fresh agreement with their company.
23).D.W.3 admitted that he did not bring the book of endowments containing the entries showing the Sri Ram Temple as public temple.
D.W.3 also admitted that there is no order to show that the father of
P.W.1 was admitted as Muthawalli. However, D.W.3 added that the petitioner himself stated in the revision petition that he was recognized in such capacity. D.W.3 next admitted that Ram Pratap was father of Madan
Lal Sharma. D.W.3 denied the suggestion that the said Ram Pratap constructed the Ram Temple and added that the temple was in existence even prior to said Ram Pratap. But he admitted that he did not come across any record to show the existence of the temple prior to the life time of said Ram Pratap.
24).D.W.3 clearly admitted that P.W.1, his father and grand father managed Sri Ram Temple and their department did not collect any rents prior to Ex.X-5 from the tenants. Even according to D.W.3 that there are four tenants now in the temple property and only the defendant is paying rents to their department and their department did not take any steps to collect the rents from the other tenants in view of the litigation.
25).The evidence of D.W.3 further shows that no single trustee took charge of the temple so far. D.W.3 clearly admitted that P.W.1 is maintaining Sri Ram temple with his expenses and the property belongs to Sri Ram Temple but not to the Government. Therefore, the defendant 36 of 42 A.S.No.16 of 2022 having admitted ownership of P.W.1 over the suit property is not expected to deny the title of P.W.1 as the defendant at the beginning entered into lease transaction admitting rights of father of P.W.1 and he paid rents to
P.W.1 after death of father of P.W.1.
26).In the facts and circumstances of the case Section 116 of the
Evidence Act applies to the defendant. Since the lease in this case is under an agreement, i.e., a contractual obligation it ends by expiry of period of prescribed under the contract. As admittedly the renewal of lease is only for one time and it was already renewed from 01.06.1983 the court is of the considered opinion that the lease in this case expired by 31.05.1993 and the defendant could not have insisted the plaintiffs for continuation of lease from 01.06.1993.
27).Since the second plaintiff Temple is brought on record and as
P.W.1 was shown as representative of second plaintiff and as P.W.1 is first plaintiff the suit is maintainable. The argument of learned advocate for defendant that the addition of second plaintiff is effective only from the date of filing of the petition to add second plaintiff and not relating back to the date of suit is not having any force as P.W.1 is representative of second plaintiff besides being first plaintiff. Simply because the O.A filed by the plaintiff was dismissed holding that the temple is a public temple and rents are paid to commissioner of endowments it cannot be said that the plaintiffs are not entitled to possession.
28).This is because the Endowment Department is not party to the suit and it did not take possession of the property and as per record, 37 of 42 A.S.No.16 of 2022 i.e., as per admissions on behalf of defendant P.W.1 is maintaining the
Temple property and there are other tenants also paying rents to P.W.1 and only the defendant is not paying rents to P.W.1 and it is only paying rents to Commissioner of Endowments. Moreover, P.W.1 did not accept to take rents in view of conduct of the defendant in continuing in possession of the suit premises even after expiry of lease period.
29).The Executive Officer of Sri Ram Temple, Hanumakonda filed
I.A No.474/2022 under Order 1, Rule 10, C.P.C to permit him to come on record. This court after hearing both sides dismissed the said petition on 29.08.2023 observing that it appears that the said petition was filed to drag on the proceedings and that the arguments of the plaintiffs that under Section 108 of the Transfer of Property Act possession had to be delivered to lessor by the lessee at the determination of lease and not to any other person had to be countenanced. In the said orders this court also observed that the petition filed by P.W.1 for describing him as trustee of temple was allowed after taking into consideration the plea in the written statement that the temple is a public temple registered with
Commissioner of Endowments and P.W.1 had no right to file the suit in his individual capacity.
30).This court also observed in the said orders that the proposed defendant did not try to come on record during pendency of the suit.
Though there was no mention of hearing arguments of both sides the trial court in its judgment under appeal at para No.9 and page No.8 clearly mentioned that it heard arguments of learned counsel for the parties.
38 of 42 A.S.No.16 of 2022
Though the judgment under appeal is having some similarities of earlier judgment dated 02.07.2004 it cannot be said that it is replica of the earlier judgment. The trial court mentioned on the docket that as petition under Order 6, Rule 18, C.P.C was dismissed the earlier judgment holds good as there was no amendment of written statement and no evidence.
31).Thus observing, the trial court passed the judgment under appeal. It is argued for the plaintiffs that as there is no further evidence there cannot be any different findings on the basis of the same evidence.
It is contended for the defendant that the trial court judgment is not correct as it simply followed the earlier judgment. This court perused the entire record and found that the judgment under appeal is not total replica or verbatim of earlier judgment to whatever that be the fact remains that both sides submitted elaborate oral arguments, written arguments and synopsis. On the side of plaintiff more than twenty judgments of superior courts were cited and for defendants also some judgments of superior courts were cited.
32).This court being a first appellate court and final court of fact carefully considered the entire material on record and the arguments and citations submitted on both sides. There is no much force in the contention on behalf of defendant that this case has to be straightaway remanded. This is because the case is of the year 1995. There would not be any meaning if the case is remanded without adjudicating it here.
Already once the case was remanded at the instance of defendant giving opportunity to amend the written statement and to adduce evidence in 39 of 42 A.S.No.16 of 2022 respect of plea of applicability of Order 2, Rule 2, C.P.C in view of dismissal of earlier suit. But that opportunity was not at all utilized.
Therefore, there would not be serving of any useful purpose if the case is remanded.
33).Moreover, for remanding the case there must be reasonable grounds and remanding the case is not automatic. As already stated as this court is final court of fact and as it heard both sides sufficiently giving considerable time to both sides to submit their arguments and as both sides submitted elaborate oral and written arguments it cannot be said that any prejudice will be caused to the defendant if the case is not remanded. For all the aforesaid reasons in view of evidence on record and in the facts and circumstances of the case, the court is of the considered opinion that the plaintiffs are entitled for delivery of vacant possession of the suit property.
34).Under the Proviso to Rule 22 of Order 41, C.P.C cross objections can be filed within one month from vakalath or from service of notice. Vakalath for plaintiffs was filed on 11.04.2022 and cross objections memo was filed on 22.04.2022. The defendant did not show to the court that notices were served on plaintiffs prior to 11.04.2022. Therefore, there is no any force in the contention of defendant that the written objections were not filed within the time prescribed under Order 41, Rule 22, C.P.C. Even otherwise the plaintiffs only challenged the judgment under appeal in so far as it related to deciding the mesne profits. In the facts and circumstances of the case and in view of the prayer in the cross 40 of 42 A.S.No.16 of 2022 appeal this court did not find any necessity of payment of court fee. In the plaint a specific prayer is made in page No.4 in clause(b) for direction to defendant to pay mesne profits on enquiry.
35).But the trial court straightaway granted mesne profits at the rate Rs.12,000/- per year. Under Order 20, Rule 12, C.P.C mesne profits can be directly granted or the court can direct conducting of enquiry.
However, as long time elapsed from the filing of suit there would be different factors affecting quantum of mesne profits such as rise in prices of essential commodities and other factors such as extension of road, etc.
Therefore, ordering of enquiry in the present case in the facts and circumstances in respect of mesne profits is essential instead of directly fixing mesne profits without any basis. Hence, the plaintiffs are entitled for delivery of vacant possession and for mesne profits on enquiry as prayed for. Point No.(i) is answered accordingly.
36).In view of the finding of this court on point No.(i) the court holds that the judgment of the trial court is proper and legal to the extent of ordering delivery of possession of the suit property to the plaintiffs and it is not proper and legal in respect of straightaway granting mesne profits at the rate fixed by it without any basis and without any enquiry and only on rough calculations. Point No.(ii) is answered accordingly.
37).In view of the findings of this court on points No.(i) and (ii) the court holds that the appellant/defendant failed to prove that it is entitled for setting aside the judgment under appeal as prayed for. Point No.(iii) is answered accordingly.
41 of 42 A.S.No.16 of 2022 38).In view of the findings of this court on points No.(i) to (iii) the court holds that the plaintiffs are entitled for setting aside the findings and observations of the trial court while deciding issue No.5 in the judgment under appeal to the extent of the trial court fixing the mesne profits directly without enquiry and ordering the delivery of possession only to second plaintiff and the plaintiffs are entitled for delivery of possession and for conducting enquiry into mesne profits. Point No.(iv) is answered accordingly.
39).Point No.(v):- In view of the findings of this court on points
No.(i) to (iv) this appeal has to be dismissed with costs also, in the facts and circumstances of the case as the defendant being a public sector undertaking continued in possession of the suit premises without legal rights and taking some technical pleas. A preliminary decree has to be passed directing the delivery of vacant possession of the suit premises to the plaintiffs by the defendant within one month from today. The trial court has to be directed to conduct enquiry into the mesne profits by giving opportunity to both parties to adduce evidence in that respect and mesne profits have to be fixed reasonably taking into consideration the contentions of both sides to be taken in the application for mesne profits and evidence adduced by them. Except to the costs of the appeal the plaintiffs are not entitled to any restitutional costs or any other costs as argued on their behalf as that plea can be raised and decided in the application for mesne profits. This point is answered accordingly.
42 of 42 A.S.No.16 of 2022 40).In the result, this appeal be and is hereby dismissed with costs. The suit O.S.No.171 of 1995 be and is hereby decreed preliminarily directing the defendant to deliver vacant possession of the suit premises to the plaintiffs within one month from today. The trial court be and is hereby directed to conduct enquiry into mesne profits and fix the mesne profits reasonably taking into consideration the contentions of both sides to be taken in the application for mesne profits and by taking into consideration the evidence adduced by them. The judgment and decree of the trial court are modified to the extent indicated above and the memorandum of cross objections of the plaintiffs is allowed to the extent indicated above.
(Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in the Open Court on this the 29th day of April, 2024).
Sd/-
PRINCIPAL DISTRICT JUDGE,
HANUMAKONDA
::APPENDIX OF EVIDENCE:: -Nil-
Sd/-
PRINCIPAL DISTRICT JUDGE,
HANUMAKONDA
Copy to:- The Principal Senior Civil Judge, Hanumakonda.