GRAM PANCHAYAT OF TELUGURAOPALEM Vs. KAKULESWARASWAMIVARI TEMPLE

JUDGEMENT

(1.) This letters patent appeal is preferred by the original defendant- Gram Panchayat of Teluguraopalem being aggrieved by the judgment and decree of the learned single Judge dated 27-3-1989 in Appeal No.628 of 1982. By the impugned judgment and decree the learned single Judge decreed the suit of the respondent/plaintiff Srikakuleswaraswamivari Temple, Srikakulam by reversing the judgment and decree of the Subordinate Judge, Machilipatnam, dated 21-7-1980 passed in O.S.No.70 of 1975. In other words the learned Subordinate Judge, Machilipatnam had dismissed the suit of the plaintiff, but the learned single Judge decreed the same. It is in these circumstances it is the defendant who is an appellant before us.

(2.) In order to appreciate the rival contentions we summarily note the facts of the case. We refer to the parties as per the ranking assigned to them in the Trial Court. The plaintiff filed a suit for declaration and injunction but latter sought for possession by amending the plaint regarding a tank popularly known as "Srikakuleswaraswamivari Cheruvu" situated at a distance of 100 yards from the plaintiff temple. The tank is situated in Teluguraopalem village and at the same time it is very nearer to Srikakulam. It is the case of the plaintiff that the tank always belonged to the temple and it is the temple which enjoyed the same from time immemorial as a part of the temple property. It was used by the devotees to take bath before they come to the temple. The water of this tank was used to perform the puja of the deity in the temple. The temple is of more than 100 years old and the tank is attached to the temple right from the ancient times for being used by the worshippers. Even the zamindar of Devarakota Estate always recognised this tank as the property of the temple. The temple was always attending to the repairs of the suit tank whenever it was necessary, the fishing rights in the tank were being auctioned by the temple and the proceeds of which were credited to the temple funds. Moreover the grass on the bunds and the trees on the bunds, lotus leaves in the tank are also being auctioned by the temple and the sale proceeds were credited to the plaintiff temple fund. Even though Devarakota Estate was abolished in the year 1949 under The Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short 'A.P.Estate Abolition Act') the suit tank being under the ownership of the temple did not vest in the Government along with other properties of estates but continued to be owned and managed by the plaintiff temple authorities. The proceedings of auctioning the fishing rights by the temple were being approved by the Commissioner of Endowments of Hyderabad from time to time. When the facts stood thus, the 1st Defendant-Gram Panchayat claiming a right under misconception under the provisions of the A.P.Gram Panchayat Act auctioned the right of fishing rights in the suit tank and also auctioned the grass grown on the bunds of the tank in the month of August 1974-75 and in the said auction the bid was knocked down in favour of the 4th Defendant. It is in these circumstances the plaintiffs have filed a suit for declaration and for possession.

(3.) The suit was resisted mainly by the Gram Panchayat contending that the suit tank is a public tank and it is used by the public of Teluguraopalem and Srikakulam village for the purpose of washing their cattle and clothes from a very long time. The suit tank has been included in the village revenue records as a poramboke. Thus, the suit tank has been a public tank vested in the Gram Panchayat under Section 85 of the A.P.Gram Panchayat Act and the land occupied by tank is one of the lands included in the list of poramboke lands as directed by the Tahsildar vide his letter dated 6-9-1973. Therefore, the Gram Panchayat is in possession of the same from 6-9-1973. The Gram Panchayat further contended that the fact that the auction sale of fishing rights and grass rights conducted by the temple were approved by the Endowments Commissioner, it does not mean that the temple is the owner. In the written statement Gram Panchayat further contended that the village Teluguraopalem was within the limits of Devarakota Estate which was notified and taken over by the Government under the provisions of the A.P.Estate Abolition Act. The suit tank along with non-ryoti land and other properties in the village vested in the Government free from all encumbrances, and the right of the plaintiff to the suit tank has got to be recognised by the Government under the A.P.Estates Abolition Act, but no such recognition has been made so far. Thus, the defendant-Gram Panchayat contended that the suit was liable to be dismissed. The Defendant No.3 filed the written statement on the same lines. Defendant No.4 adopted the written statement of Defendant No.3. Defendant Nos.3 and 4 were the auction purchasers in an auction conducted on 29-7-1975. They also contended that if they were not allowed to reap the fruits of the auction they would be put to great loss and hardship. Thus, they also contended that the suit was liable to be dismissed. On behalf of the plaintiffs four witnesses were examined as P.W.1 to P.W.4 and on behalf of the Defendants D.W.I, D.W.2 and D.W.3 were examined. Plaintiffs got marked certain documents vide Annexure A-1 to A-19 and the defendants also got marked certain documents vide Ex.B-1 to B-5. The learned Subordinate Judge on appreciation of the evidence dismissed the suit filed by the plaintiff. The plaintiff preferred an appeal to this Court in Appeal No.628 of 1992. The learned single Judge has allowed the appeal and decreed the suit. As we have already stated above, it is the defendant-Gram Panchayat which has come up in appeal in this letters patent appeal.