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2011 (6) ALD 223
High Court of Andhra Pradesh
V.V.S.RAO & RAMESH RANGANATHAN
G.Subrahmanyam LRs & Others
Versus
G.Leela & Others
LETTERS PATENT APPEAL No.77 OF 1997
Decided on : 27-07-2011
Land Acquisition Act, 1894 – Income Tax Act, 1961 – Sections 2(24) and 17 – Constitution of India – Article 136 – Andhra Pradesh Charities and Hindu Religious Institutions and Endowments Act, 1987 – Letters Patent – clause 15 – Code of Civil Procedure, 1908 – Order VII Rule 1 and 7, Order XLI Rule 33, Order XX Rule 12, Section 2(12) – Recovery of Possession – Compensation – Letters Patent Appeal – This plaintiff’s Letters Patent Appeal, under clause 15 of the Letters Patent, is against the Judgment of the learned Single Judge dismissing the cross-objections in A.S. – The plaintiff filed the suit for declaration of his right to perform mirasi Service of Mutyala Harathi as successor of Tharigonda Vengamamba – He also sought for a direction to the first defendant to deliver possession of items 1 to 3 – Points for consideration, namely, whether the appellants/plaintiffs are entitled to the relief of compensation in lieu of possession of item No.1 and the backyard portion of item No.3 of plaint ‘A’ schedule; and whether the plaintiff can seek a direction to the first respondent to reimburse the compensation amount, she had received from the fourth defendant, to the plaintiff – Held, The law may be thus taken as well settled that Order VII Rule 7 does not bar the Court from granting relief which is not specifically stated if the relief to be given after trial is incidental to the general and larger relief, and such relief can be granted by the Court in the interest of justice – It is also well settled that, generally, it shall be the duty of the Court to consider the subsequent events which have a fundamental impact on the right to relief, and mould the relief accordingly – If the property, of the subject matter of the suit, is no longer available the Court will take notice of such event, and mould the relief so as to shorten the litigation, and to subserve the ends of justice – Applying these principles Court has no hesitation to hold that the first defendant, who was allegedly in wrongful possession after the plaintiff staked claim to get back the mirasi right, could not have accepted the compensation paid by the fourth defendant for a portion of the backyard of item 3 of the plaint schedule – As the relief claimed in the plaint, inter alia, was also for possession of this property, and the same was no longer completely available by the time trial concluded, the Court had jurisdiction to direct payment of compensation, received by the first defendant from fourth defendant, to the plaintiff – Court fails to see any bar in common law or statute law to pass a decree against the first defendant for payment of the money which he received by way of compensation from the fourth defendant – we hold that the learned single Judge was not correct in denying the relief – Directing the first defendant to pay the amount she received from the fourth defendant to the extent of Acs.0.45½ cents being the backyard portion of item No.3 (house) acquired by the fourth defendant – This shall be in addition to the decree for delivering possession of item 3 which remains after acquisition – Letters Patent Appeal Allowed
V.V.S.Rao, J.
1. This plaintiff’s Letters Patent Appeal, under clause 15 of the Letters Patent, is against the Judgment of the learned Single Judge dated 17.04.1995 dismissing the cross-objections in A.S.No.2582 of 1989. Be it noted that, during the pendency of this appeal, the sole appellant died, and his legal representatives have been brought on record as appellants 2 and 3. For the sake of convenience, the parties are referred to herein as they are arrayed in the original suit being O.S.No.211 of 1982 on the file of the Court of the Additional Subordinate Judge, Tirupati.
2. The plaintiff instituted the suit for declaration of his right to perform Tharigonda Vengamamba Mirasi Service in the temple of Lord Venkateswara at Tirumala, for permanent injunction, and for recovery of items 1, 2 and 3 of Plaint Schedule properties. These properties were originally owned by Tharigonda Vengamamba, a great devotee of Lord Venkateswara. She was rendering midnight Harathi known as ‘Mutyala Harathi Service’, and was celebrating Narasimha Jayanthi for ten days annually. The service came to be recognized as mirasi service. All the successors of Tharigonda Vengamamba acquired the right to perform the said service. In 1930 or so Garmitta Gammanna performed the mirasi service. Chidambarappa was his brother. Gammanna executed a Will on 02.04.1931 bequeathing/authorizing the right to perform the mirasi service to Gandepalli Suryanarayana with a condition that the right and property would revert back to the heirs of Chidambarappa. After Suryanarayana, his son Kuppaiah Sarma performed the service. He was succeeded by his son G.V.L.N.Murthy, the husband of the first defendant. Murthy died issueless on 27.12.1981. The plaintiff, being the son of Chidambarappa, staked his claim for the mirasi right, as well as the properties, based on Ex.B.1 Will. He issued legal notice on 16.09.1961 claiming right as successor-in-interest of Vengamamba family being the nephew of Gammanna, and then filed the suit.
3. The first defendant opposed the suit contending that, after the death of her husband Murthy, she had adopted the second defendant under registered adoption dated 16.06.1982; that the fourth respondent had recognized him as mirasidar; that, as he was a minor, mirasi services were being discharged through the third defendant; and that, as per Ex.B.1, it is the successors of Suryanarayana alone who had the right to perform the service. The fourth defendant, namely, Tirumala Tirupati Devasthanams (TTD) opposed the suit contending that the first defendant was recognized for rendering service; that she was also paid compensation; and that all hereditary mirasi rights stood abolished after the enactment of Andhra Pradesh Charities and Hindu Religious Institutions and Endowments Act, 1987 (hereafter called, the Endowments Act).
4. On considering the evidence – oral evidence of P.W.1 to P.W.3, and D.W.1 and D.W.2 as well as documentary evidence Exs.A.1 to A.17 and Exs.B.1 to B.17 – the trial Court granted declaration of the right of the plaintiff to Tharigonda Vengamamba Mirasi Service at Lord Sri Venkateswara Temple at Tirumala, and also granted permanent injunction restraining the defendants from performing the said service. In so far as the relief of recovery of possession is concerned, having regard to the evidence that out of Acs.0.58 cents of land in item No.1, Acs.0.45½ cents and the backyard portion of item No.3 (house) were acquired by the fourth defendant, the relief of recovery of possession was granted only in respect of item No.2 while denying the same in respect of portions of item Nos.1 and 3, which were acquired by fourth defendant.
5. The defendants 1 to 3 filed appeal. The plaintiff filed cross objections claiming the relief of recovery of possession of item Nos.1 and 3, which are said to have been acquired by the fourth defendant. The learned single Judge construing Ex.B.1, executed by Gammanna, as well as other evidence came to
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