A SUBRAHMANYESWARA RAO Vs. H SANKARA MATAM

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the judgment of our learned brother, Chandrasekhara Sastry J., dismissing the appeal filed by defendants 1, 2, 5 and 6 and allowing the Memorandum of Cross- Objections, tiled by the plaintiff, in part and modifying the decree passed by the lower court.

(2.) The respondent herein, Sree Hanumanulupeta Sankara Matam (hereinafter referred to as 'the Matam') filed the present suit for declaration of the Matam's title to the plaint schedule properties and for possession of the same ejecting the defendants therefrom. The plaint schedules properties originally belonged to Sri Madapati Venkateswara Rao. They were gifted by him to the Matam, which was started by the late Sri Paramahamsa Chidananda Saraswati Swamy in or about the year 1917. At that time, 1214 sq. yards of site was gifted for constructing the Matam by Madapati Venkateswara Rao although no gift deed was actually executed then. Items 1 and 2 of the plaint schedule lie on the south of the Matam building. These also were gifted to the Matam for the construction of a school and other institutions. After the death of Venka-teswata Rao in the year 1917, his son Suryanarayana Rao confirmed the gift but Suryanaryana Rao also died on June 2, 1921. After the death of Suryanarayana Rao, the late Adusumalli Gopalakrishniah, the father of defendants 1 and 2. purchased the estate of the late Venkateswara Rao from his reversioners under a sale-deed, dtd. 29/1/1922, but the plaint schedule sites were nor included in that sale-deed. Item 1 of the plaint schedule had been in the possession and enjoyment of the Matam till about July, 1950, when the 4th defendant with some other people, at the connivance of defendants 1 and 2, tried to occupy it. The Matam filed a suit, O.S. No. 378 of 1950, for a permanent injunction but that suit was dismissed for want of payment of proper court-tee and also that a suit for a mere injunction would not lie. An appeal preferred against it was also dismissed. After the dismissal of that suit, the 4th defendant trespassed into item 1 of the plaint schedule and raised thatched sheds on it. It is said that defendants 1 and 2 had no title, nor even possession till 1952 and that their possession from April, 1952 was without any manner of right. Item No. 2 of the plaint A schedule also was in the exclusive possession and enjoyment of the Matam till about the end of 1944, when the father of defendants 1 and 2 and the husband of the 3rd defendant tried to forcibly occupy the site, Thereupon, one of the trustees of the Matam filed a petition and obtained an order under S. 144, of the Code of Criminal Procedure. Subsequently other proceeding of criminal nature, namely, complaint under Sec. 447 I.P.C. was instituted, but that was dismissed on the ground that the dispute was of a civil nature. The plaintiff thus continued in possession of item 2 till the end of 1944. In the year 1923 the late Chidananda Saraswati Swamy filed a suit, C.S. No. 22 of 1928, in the Sub-Court, Vijayawada, for administration of the legacies of Venkateswara Rao's estate. But the Swamiji colluded with the faher of defendants 1 and 2 and did not conduct the suit properly and ultimately it was dismissed. Then a compromise was effected between the late Swamiji and Gopalakrishniah, the father of defendants 1 and 2, on July, 2, 1931, whereby the father of defendants I and 2 agreed to sell items 1 and 2 to the Swamiji for a total consideration of Rs.5,000.00. Out of the said sum of Rs.5,000.00. Rs.4,000.00 was paid by the late Swamiji and he executed a promissory note for the balance of Rs.1,000.00 in favour of Gopalakrishnayya. The unregistered sale deed as well as the promissory note was kept by both the parties with Sri Prattipati Satyanarayana Rao, the then Advocate of Gopalakrishnayya, on the specific understanding that the sale deed should be registered after the payment of Rs.1,000.00 due on the promissory note. Subsequently, on July, 5, 1935, the late Swamiji executed trust deed mentioning all these facts. The late Gopalakrishnayya applied to the Court in O.S. No. 60 of 1921 in I.A. No. 808 of 1935 for permission to sell the vacant site at Vijayawada, but the plaint A schdule sites were not mentioned as his. Defendants 1 and 2 have no right of title to the suit properties, and they cannot claim possession of the same without repaying the sum of Rs.5,000.00 paid by the Swamiji. Subsequent to this suit, defendants I and 2 disposed of the item 1 of the plaint schedule to defendants 5 and 6, while the 3rd defendant alleges to have purchased item 2 of the plaint schedule long ago. They are, there-tore, impleaded in the present action as defendants.

(3.) Defendants 1 and 2, in their written statement, pleaded that Bodapati Subbarao, who filed the suit on behalf of the Matam, was not one of the trustees and he had, therefore, no locus standi to file the present suit. They further pleaded that in any view the suit brought by one of the trustees of the Matam also was not maintainable, They inter alia denied that the suit sites were gifted to the Matam by the late Madapati Venkateswara Rao or by his son and also that the Matam was in possession of these properties and stated that their father purchased the entire estate of Madapati Suryanarayana Rao including the suit sites. They also denied that there was any collusion between the Swamiji and their father in O.S. No. 22 of 1928, and also that there was any compromise between them or any sale as such, or that there was any sale of a portion of the suit site by the Swamiji to Annapurmamma for the construction of a Siva temple. Pleading ignorance of the proceedings in O.S. No. 60 of 1921 they stated that they were not estopped from claiming title to the suit properties and that the decision of the High Court in S.A. No. 2331 of 1947 was not binding on them as their father was not a party to it. Admitting the sale of 927 sq. yards of site in item 2 to the 3rd defendant by their father in 1937, a further extent of 485 and 400 sq. yards again in 1940. they stated that these sites had been in the possession of the 3rd defendant ever since the respective sales. They further averred that they partitioned item 1 and the remaining portion of item 2 in the year 1953 and the 1st defendant sold his share to the 6th defendant and the 2nd defendant also sold his share to the 6th defendant, It was further averred that the trust deed by the late Swamiji, relied upon by the plaintiff, was not binding on them. The 3rd defendant, while adopting the written statement of defendants 1 and 2, pleaded further that she purchased 900 sq. yards and 4 sq. feet in item 1 (mistake for item 2) in the year 1937 by a registered sale deed from the father of defendants 1 and 2 and ever since had been in possession of that property, In about the year 1940, she purchased 485 sq. yards and 1 sqfoot in item 2 and had been in possession thereof ever since. She further stated that she constructed a pucca building with compound walls in the year 1943 in that site She denied that Matam was in possession of the property till 1944 and stated that item 2 was not the subject-matter of the suit in O.S. No. 378 of 1950 and also that she was not a party to that litigation. She further stated that the criminal proceedings by the plaintiff against her were terminated in her favour. She pleaded that even if the incompleted sale deed alleged to have been executed by Gopalakrishnayya was true, it showed that the plaintiff had no title to the suit properties as the terms of the compromise had not been carried into effect. A legal plea was also taken that the suit was barred by limitation.