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SUPREME COURT OF INDIA
N.V. RAMANA, AMITAVA ROY, JJ.
Vijendra Kumar & Ors. – Appellants
Versus
The Commissioner, A.P. Charitable & Religious Institutions & Endowment Department & Anr. – Respondents
Civil Appeal No. 6460 of 2008
Decided On : 15-12-2017
Facts of the case:
the grandfather of the respondents, Ram Harak Tiwari (since deceased) had acquired the premises in question from one Kondaiah by sale deed dated 18.12.1893 and had installed the family idol of Shri Hanuman Ji made of silver which was movable and not attached to the earth exclusively for the worship by the family members. The suit temple, as asserted by the respondents, came to be registered in the Books of Endowment recording the name of Gokarnath Tiwari, the father of the appellants as the endower of Wakf (that is the temple) in 1936. It had been published in the contemporary Official Gazette.
In the year 1965 the appellants received a letter from the Endowment Department requiring them to submit an account/budget of the temple. The appellants denied that the temple had ever been dedicated or endowed to the public by their father.
The appellants thereafter in the year 1975 filed an application under Section 77 of the Andhra Pradesh Hindu Charitable and Religious Institutions and Endowment Act of 1966 with the same contention which was eventually dismissed.
The appellants instituted the suit being OS 58 of 1977 in the Court of Chief Judge, City Civil Court, Hyderabad under Section 78 of the Act praying for an affirmation that the suit temple was a private property and claimed for a decree for a declaration.
The Trial Court decreed the suit of the appellants whereupon the respondents have filed an appeal before the High Court.
The learned Single Judge, on an assessment of the materials on record, reversed the findings of the Trial Court and held that the temple was a public temple, both in view of the proved fact that it was being visited by the members of the public in profuse numbers daily with offerings in cash and kind, but also in view of the entry in the Register of Endowment, Exh.B6, which even otherwise in view of Section 114(e) of the Indian Evidence Act, 1872 permitted a presumption of validity of official acts pertaining thereto. The Single Judge negated the plea of the appellants that neither such an endowment had been made by their father nor any notice had been received by them with regard thereto at any point of time.
The appellants preferred Letters Patent Appeal before the Division Bench of the High Court, which has been dismissed.
Finding of the Court:
Appellants should be given opportunity to rebut presumption of validity of Ext. B6.
Result: Appeal allowed.
JUDGMENT :
Amitava Roy, J.
1. The appellants in their relentless pursuit for a declaration that the temple, which is the subject matter of the lis is their private place of worship and not a public shrine, has put to challenge the determination to the contrary made by the High Court vide impugned judgment and order dated 10.07.2007 rendered in Letters Patent Appeal No. 393 of 1992. Thereby the verdict of the Single Judge in the writ petition filed by the appellants had been affirmed.
2. We have heard Mr. V.V.S. Rao, learned senior counsel for the appellants and Mr. P. Venkat Reddy, learned counsel for the respondents.
3. The background facts in short need be outlined at the threshold for the desired comprehension of the issue seeking resolution. The flow of events demonstrate that the grandfather of the respondents, Ram Harak Tiwari (since deceased) had acquired the premises in question from one Kondaiah by sale deed dated 18.12.1302 Fasli corresponding to 18.12.1893 (as per English Calendar) and as claimed by them had installed the family idol of Shri Hanuman Ji made of silver which was movable and not attached to the earth exclusively for the worship by the family members. The suit temple, as is asserted by the respondents, came to be registered in the Books of Endowment (Muntakab of Registry of Endowment) recording the name of Gokarnath Tiwari, the father of the appellants as the endower of Wakf (that is the temple) on 16th Aban 1345 Fasli (corresponding to the year 1936 as per the English Calendar). The extract from the Registry of Endowment discloses that the entry had been made as per the order of the Minister, Ecclesiastical Department as contained in File No.60/1 of 1945 Fasli (corresponding to the year 1933) of the Directorate of Endowment. This document also indicated that it had been published in the contemporary Official Gazette. According to the appellants, the initial structure was temporary in nature being a tin shed and was later on converted into a permanent one with RCC roof by obtaining due sanction from the concerned municipal authority.
4. As the matter stood at that, in the year 1965 the appellants received a letter from the Endowment Department requiring them to submit an account/budget of the temple on the ground that the same had been endowed by their father for public purpose. The appellants filed their counter in case No.28 of 1968 before the Deputy Commissioner, Andhra Pradesh Charitable Hindu Religious Institutions and Endowments, Government of Andhra Pradesh, Hyderabad, instituted by one Mr. Laxmanrao and another, where they denied that the temple had ever been dedicated or endowed to the public by their father. They claimed as well that all the investments made in the structure/premises were with the funds of the family and with the due sanction of the municipal authorities.
5. After the death of their father, Gokarnath Tiwari on 21.06.1969, the appellants continued to manage the affairs of the temple and conduct the worship therein as an exclusive family affair.
6. The appellants thereafter in the year 1975 filed an application under Section 77 of the Andhra Pradesh Hindu Charitable and Religious Institutions and Endowment Act of 1966 (hereafter to be referred to as “the Act”) with the same contention.
7. This proceeding, later on, under Section 92 of the Act, was transferred to the Deputy Commissioner (Endowment) at Guntur for disposal and was numbered as OA 66 of 1975. By order dated 28.2.1977, this application of the appellants was dismissed with the observation that the suit temple was a public temple.
8. Situated thus, the appellants instituted the suit being OS 58 of 1977 in the Court of Chief Judge, City Civil Court, Hyderabad under Section 78 of the Act praying for an affirmation that the suit temple was a private property and claimed for a decree, inter alia for a declaration:
a. That the order dated 28.2.1977 of the Deputy Commission, Endowment, Guntur proclaiming the temple to be a public templ
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