M HARIHARA PRASAD Vs. N NAGESWARA RAO

JUDGEMENT

(1.) The appellant, who is the defendant in O.S.No.293 of 1992 on the file of Principal Subordinate Judge, Guntur, preferred this appeal against order of injunction in I.A. No. 1457 of 1992 dated 15th September, 1992, restraining him from making further construction in the plaint 'A' schedule property till the disposal of the suit. The suit was filed by N. Nageswara Rao and V. Umamaheswara Rao, residents of Medikonduru in a representative capacity under Section 92 of Civil Procedure Code against the appellant, Akkaiah Choultry and two others for declaration that A- Schedule property consisting of Choultry situated on 250 Square yards of site at Medikonduru village is a charitable trust bearing the name of Akkaiah Choultry and also for direction to the appellant, who is the de facto trustee, to render account of the income of the trust from B-Schedule property consisting of 10 acres 75 cents situated in Medikonduru village and to remove the appellant from the management and appoint proper persons by framing a scheme. According to the plaint, the said Choultry was constructed by one Akkaiah for the purpose of providing shelter to the travellers and also to serve water in summer to the travellers (Chalivendram) and residents of the village. Akkaiah collected donations from the public, and after obtaining permission from the Government, started construction of the Choultry and also Chalivendram in the year 1924. Akkaiah, who had no children, fostered a daughter and endowed B-Schedule property by registered will dated 23-3-1937 wherein he directed that the eldest male member of his family must manage the B-Schedule property for the upkeep and maintenance of the Choultry. On Akkaiah's death in 1939, his foster daughter's son, Bhagawanrao, was managing the properties and after his death, the appellant, who is his son, was managing the properties. But the appellant entertained the idea of grabbing the properties and started demolishing the Choultry building alleging that it has become dilapidated. The representations of the villagers to the Endowment authorities to take the Choultry within the fold of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter referred to as 'Endowment Act') met with no response and taking advantage of this, according to the plaint, the appellant took away the material of the Choultry and started constructing shopping complex adverse to the interests of the trust. Along with the suit, the plaintiffs have filed separate application, I.A. No. 1455 of 1992, under Section 92 of Civil Procedure Code for the leave of the Court. The plaintiffs have also filed petition under Order 39 Rules 1 and 2 in I.A. No. 1457 of 1992 for injunction restraining the appellant, his men and followers from proceeding further with the construction on the plaint A-Schedule property.

(2.) The trial Court granted leave ex parte to file suit and also granted interim injunction. The appellant opposed the petition contending that the building and site was mutated in the name of Bhagawanrao, his father long back and that there was no Choultry and Chalivendram for the past 40 years, and that there is no public trust, much less public endowment. It was also contended that granting leave by the trial Court under Section 92 of Civil Procedure Code without notice to the, defendant is illegal, that he has already constructed shopping complex by spending an amount of 1,50,000 upto the ceiling level and only slab has to be put up and that he is 'willing to complete the laying of slab to aviod waste of material subject to the result of the suit." The trial Court after hearing both the sides made interim injunction absolute on 15th September, 1992. Against this order, the appellant-second defendant has come up with this appeal contending:

(3.) It may be noticed that the second contention regarding granting of temporary injunction in the declaratory suit is raised for the first time of the appeal. However, as it is a qeustion of law, we have permitted the counsel to raiseit. 1st Contention regarding Section 92 Civil Procedure Code: