Gram Panchayat of Teluguraopalem vs Srikakuleswaraswamivari Temple

B.S. Raikote, J.—This Letters Patent Appeal is preferred by the original defendent-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 defendent who is an appellant before us.

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 denotees 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 & Conversion into Ryotwari) Act, 1948 (for short ''A.P. Estates Abolition Act'') the suit tank being under the ownership of the temple did not vest in the Government along with other properties of Estate 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 defendent-Gram Panchayat claiming a right under misconception under the provisions of the A.P. Gram Panchayats Act auctioned the 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 defendent. It is in these circumstances the plaintiff has filed a suit for declaration and for possession.

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 villages 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 u/s 85 of the A.P. Gram Panchayats 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. Estates 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 defendent-Gram Panchayat contended that the suit was liable to be dismissed. The defendent No. 3 filed the written statement on the same lines. Defendent No. 4 adopted the written statement of defendent No. 3. Defendent 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 plaintiff four witnesses were examined as P.W.1 to P.W.4 and on behalf of the defendants D.W.1, D.W.2 and D.W.3 were examined. Plaintiffs got marked certain documents vide Annexures A-1 to A-19 and the defendants also got marked certain documents vide Exs.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 defendent-Gram Panchayat which has come up in appeal in this Letters Patent Appeal.

The learned Counsel for the appellant strenuously contended that the learned single Judge has erred in granting the decree in favour of the plaintiff temple on the basis of the evidence on record. He submitted that on the basis of the evidence on record the plaintiff has not proved that the suit tank belonged to the temple. He further submitted that the temple is covered in R.S. No. 308 (old Survey No. 203 of Teluguraopalem village) and it extends to 8 acres, 82 cents and this land is shown as poramboke land, therefore, temple cannot be declared as owner. He further submitted that the tank in question being situated in Devarakota Estate and the said estate being abolished under the A.P. Estates Abolition Act it vests in the State Government and as such the learned single Judge could not have decreed the suit. On the other hand the Counsel for the respondent strenuously supported the judgment and decree of the learned single Judge contending that the tank was under the ownership of the temple. The tank is an appurtenant to the temple. Therefore, it formed part of the temple. He further submitted that it is not in dispute in this case that the temple as such do not vest in the State Government by virtue of the A.P. Estates Abolition Act and in fact such private owned lands do not vest in the State Government u/s 3 of the said A.P. Estates Abolition Act. Moreover it is only vide letter dated 6-9-1973 it was for the first time included in the list of poramboke lands illegally and without any authority or law and without any notice and opportunity to the plaintiff. Only on the ground that it is included in poramboke lands it cannot be said that the land vests in the State Government. He invited our attention to the definition of temple found under A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966 and A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987. Under both the Acts the definition of temple has been made an inclusive definition including subshrines, utsavamantapas, tanks and necessary appurtenant structures and land. This specific inclusion of tank as a temple property is only by way of clarification avoiding any ambiguity regarding the definition of temple that was found in the earlier Religious Endowment Acts. On the basis of the evidence on record the tank always belonged to the ownership of the temple and it did not vest in the State Government by virtue of the A.P. Estates Abolition Act. He, thus, contended that the learned single Judge has rightly decreed the suit having assessed the entire evidence on record and the same does not call for interference in this Letters Patent Appeal.

We have given anxious consideration to the case. The learned single Judge referred to the evidence both oral and documentary which established the ownership and possession of the temple/since time immemorial. From the evidence of P.W.I it is clear that the suit tank is being used for teppotsava and for taking bath by the devotees and this fact has not been denied by the defendents. P.W.2 who is an archaka of the temple deposed that the tank water is used for teertham and for cooking naivedyam of the deity of the temple. The description of the suit tank in the village accounts is as Sri Kakuleswaraswamivari cheruvu (Srikakuleswaraswami tank). From this description of the tank in the village accounts it is clear that the tank itself is known as Sri Kakuleswaraswami temple. Those accounts books are marked in this case as Exs.A-7 and A-8 and they relate to the period 1317 and 1318 Fasli. They also show that the temple was meeting the expenses for the repairs of Sri Kakuleswaraswamivari cheruvu situated in Srikakulam village from time to time. It is in this context the learned Counsel for the defendent submitted that the said account books relate to Sri Kakuleswaraswami temple situated at Srikakulam but not in Teluguraopalem. The same was the argument before the learned single Judge. The learned single Judge pointed out that there is no evidence to show that there is another temple other than Sri Kakuleswaraswami temple and if the suit tank did not belong to the temple absolutely there was no necessity for the plaintiff to spend huge amounts for the repairs of the tank. It is to be noted that from the evidence on record it is clear that this temple is nearer to both Srikakulum as well as Teluguraopalem. In fact Teluguraopalem appears to be a hamlet of Srikakulam town and many outsiders may be referring to it as Srikakulam temple. In fact the temple itself is known as Sri Kakuleswaraswamivaru. It is nobody''s case that there is one other tank in Srikakulam village which the plaintiff was maintaining and repairing and another tank in Teluguraopalem village. Having regard to the entire evidence on record the learned single Judge concluded that the tank belonged to Sri Kakuleswaraswami. u/s 3 of the A.P. Estates Abolition Act if there is any other tank belonging to the Devarakota Estate Inamdar such tanks vested in the State but not the tank belonging to the private ownership of the temple. Moreover the auction proceedings of the fishing rights conducted by the temple from time to time and crediting the sale proceeds to the funds of the temple is being approved by the Endowment Commissioner from time to time is not disputed. This fact also reinforces the contention of the plaintiff that even the Endowment Department treated this tank as belonging to the temple. Endowment Department nevertheless is a Government Department. In these circumstances including this tank in the list of poramboke lands in the year 1973 for the first time is clearly a mistake and without any opportunity to the temple authorities. Even otherwise such Revenue records have only a rebuttable presumption and such presumption, if any, stands rebutted on the basis of the evidence on record. The learned single Judge noted the judgment of the High Court of Madras in Sree Batchu Venkataratnam and Another Vs. The Secretary of State for India in Council and Others, in which it is held that the word ''poramboke'' is used in several senses. Merely because poramboke includes community property it cannot be said that it connotes no other kind of property. The same has been the view of this Court in an unreported decision dated 1-7-1987 in A.S. No. 475 of 1982 and A.S. No. 2788 of 1982 in which it is held that simply because the land was described in the revenue records as poramboke the same cannot be conclusive proof that the land is a Government poramboke, and the resettlement register describing it as a poramboke land cannot be taken to establish the title of the Government to the land in question. On the basis of Exs. A-1, A-2 and A-4 it is clear that this tank is known from time immemorial as Sri Kakuleswaraswamivari temple and not as a Government tank or a village tank etc. From the entire evidence on record, it is clear that this tank was under the ownership and enjoyment of the temple since times immemorial. As held by the Hon''ble Supreme Court in Kamaraju Venkata Krishna Rao Vs. Sub-Collector, Ongole and Another, that a tank by itself can be an object of charity and tank itself could be considered as a charitable institution within the meaning of Andhra Pradesh Inams (Abolition and Conversion into Ryotwari) Act, 1956, Section 2(R) of Andhra Act 37 of 1956. Even otherwise it is a common knowledge that majority of the famous temples in India have got a tank or a pushkarini as a part of the temple. Performing ganga puja and teppotsasvam has always been a part of religious activity of a temple. Either a pushkarini or a tank is maintained by the temple to perform the puja and prepare teertham and also naivedyam by preventing the public from spoiling its water. Even taking a holy dip in such a tank or pushkarini is considered to be a pious duty of the devotee before offering prayers to the deity and before getting darshan of the Lord. It is only to avoid this kind of dispute the A.P. Charitable Hindu Religious Endowment Act of 1966 provided an inclusive definition. The definition of temple found in earlier enactments i.e. Madras Hindu Religious & Endowment Act of 1926 (Act II of 1927) and Madras Hindu Religious and Charitable Endowment Act (Act XIX of 1951) itself indicate that a temple means.

"a place by whatever designation known, used as a place of public religious worship and dedicated to. or for the benefit of, or used as of right by the Hindu community or any section thereof, as a place of religious worship."

The temple and the pushkarini or the tank attached to the temple were the places of religious worship as we have already indicated above. In order to avoid any ambiguity the inclusive definition has been provided in subsequent Andhra Pradesh Charitable & Hindu Religious Institutions and Endowments Act (Act 17 of 1966) and the Andhra Pradesh Charitable & Hindu Religious Institutions and Endowments Act (Act 30 of 1987). We are extracting the definition of temple given in both these acts as under:

"Temple means a place by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community or any Section thereof, as a place of public religious worship and includes sub-shrines, utsava Mandapas, tanks and other necessary appurtenant structures and land."

From reading the definitions given in earlier enactment of 1926 and the latter Acts i.e. 17/1966 and 30/1987 it is clear that latter definition simply made explicit what was implict in earlier definition. The earlier definition of temple included all property of the temple including tank within the clause "as a place of public religious worship" if it was duly dedicated to the temple for the benefit of Hindu Community. However, the latter definition has made the definition of ''temple'' explict by including even the tanks and necessary other appurtenant structures and lands. Assuming for the sake of the argument that there was some ambiguity in the earlier definition of temple the same has been made clear by the definition found in the subsequent legislations. In State of Bihar Vs. S.K. Roy, the Hon''ble Supreme Court observed as under:

"It is a well recognised principle in dealing with matters of construction that subsequent legislation may be looked at in order to see what is the proper interpretation to be put upon the earlier Act where the earlier act is obscure or ambigious or readily capable of more than one interpretation. (See Ormoimd Investment Co. Ltd. v. Belts 1928 AC 143 at P.156)."

In view of the above law declared by the Hon''ble Supreme Court, we are of the opinion that in the definition of temple found in 1927 Act itself tanks dedicated for the public charity and attached to the temple were also included in the definition of temple being the place of religious worship.

The present suit is filed in the year 1987 and by that time the inclusive definition had already come into force by including the sub-shrines, utsavamantapas, tanks and other necessary appurtenant structures and lands. As we have already stated above the tank in question is a necessary appurtenant to the temples and it belonged to the temple. Therefore, the tank is a temple property and accordingly does not vest in the State Government u/s 85 of the A.P. Gram Panchayats Act so as to vest the same in Gram Panchayat. It is also an established principle of law that any land privately owned but situated in an Inam village does not vest in the State Government by virtue of the Estates Abolition Act. This Court in "State of A.P. v. Rangaiah" 1972 29 ALT 111 relying upon another judgment of the High Court of Madras in "Rengaraja lyengar v. Achikannu Annual" 1959 MLJ 513 (Madras) has held that.

"Then, on the basis of Section 18(4) it can be said that these buildings which are not the buildings belonging to the landholders have vested in the plaintiffs, who had owned them immediately before the notified date. It is undoubted that the buildings belonged to the plaintiffs. Therefore, by virtue of Sub-section 4 of Section 18 they vested, despite the abolition of the state, in the plaintiffs who had owned them before the Act came into force. Sub-section 5 of the same Section makes it clear that the expression "building" includes a site on which it stands and any adjacent premises occupied as an appurtenance thereto. Thus, the plaintiffs have got the rights to the suit buildings and the sites around them.

This conclusion can also be rested on the provisions of the Madras Land Encroachment Act, 1905. Section 2 declares that all public roads etc. are the properties of the Government. But it lays down certain exceptions to that declaration and one of them is lands owned as temple sites or owned as house sites or backyard. In the case before me it is clear that these are housesites belonging to the plaintiffs. Therefore, they do not vest in the Government. It is undisputed that the Land Encroachment Act applies to all the areas which were formerly estates but were subsequently abolished. This view is supported by a decision of the Madras High Court in Rengaraja lyengar v. Achikannu Annual 1959 MLJ 513 (Madras). Viewed from any angle, there is no doubt that the plaintiffs are entitled to a declaration of their title to the buildings and the sites around them."

From this it follows that the building and its appurtenant thereto owned by private persons before the notification, do not vest in the State Government, in terms of Estates Abolition Act. u/s 3 of the said Estates Abolition Act, the entire estate held by the ''landholder'' as defined under clause 8 of Section 2 of the said Act vests with the State Government but not any other private land. In the instant case the temple possessed and owned the disputed tank and as such it does not vest with the State Government. Viewed from any angle we are of the opinion that the judgment and decree of the learned single Judge do not call for interference in this Appeal and accordingly we pass the order as under:

The Letters Patent Appeal is dismissed but in the circumstances without costs.