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PETITIONER:

STATE OF ANDHRA PRADESH

Vs.

RESPONDENT:

MANJETI LAXMI KANTHA RAO (D) BY L.RS. & ORS.

DATE OF JUDGMENT: 04/04/2000

BENCH:

R.C.Lahoti, S.R.Babu

JUDGMENT:

RAJENDRA BABU, J. :

These appeals arise out of a suit brought by Manjeti

Venkata Nagabhushana Rao and Manjeti Lakshmi Kanta Rao

against the State of Andhra Pradesh and others for a

declaration that the property comprised in R.S. No. 400

with a building thereon bearing Municipal No. 15/184 at

Chilakalapudi, Masulipatnam measuring Ac. 17-61 cents in

which the plaintiffs have a half share is not subject to any

public or charitable trust or endowment or provisions of the

Madras Hindu Religious and Charitable Endowments Act, 1951

that the order G.O. Ms. No. 1501 dated July 12, 1979 is

void; and for certain other consequential reliefs. For

purposes of convenience we will refer to the parties as

arrayed in the suit.

The Trial Court framed several issues as to whether

(1) the notification dated July 28, 1960 is valid and

binding on the plaintiffs; (2) the suit property is subject

to any charitable trust of endowment; (3) the aggrieved

parties are estopped from questioning the ownership; (4)

any of the parties have perfected their title by adverse

possession; (5) the court has jurisdiction to try the suit

after Act 17 of 1966 came into force; (6) the order of the

third defendant dated May 26, 1969 in O.A. No. 50/69 is

conclusive and binding on the parties; and (7) any of the

parties are estopped from contending that the plaint

schedule property constitutes charitable endowment in view

of the order of the third defendant in O.A. No. 50/69. On

all the issues the trial court held against the plaintiffs.

Two appeals were filed in the High Court against the

judgment of the trial court which were dismissed. Thereupon

two Letters Patent Appeals were filed. When the suit was

pending in the trial court the Andhra Pradesh Charitable and

Hindu Religious Institutions and Endowments Act, 1966

[hereinafter referred to as `the Act'] came into force from

January 26, 1967 and defendants Nos. 4 to 12 filed a

petition (O.A. No. 50 of 1969) under Section 77 of the Act

before the third defendant in the suit and that petition

ended in their favour by holding that the property had been

purchased by the applicant and other members of his family

in a court auction and they had been enjoying the same for

nearly 40 years and no one had questioned their enjoyment on

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the ground that the property was subject to any public

charity of endowment. The third defendant made a

declaration that the said property is not public charity or

subject to any endowment. That order became final inasmuch

as no appeal or suit as contemplated under the Act had been

filed. In the circumstances when the order made by the

Deputy Commissioner had attained finality and conclusiveness

and the matter could not be challenged except in the manner

provided under the Act and that course having not been

adopted the High Court allowed the Letters Patent Appeals

and set aside the judgment and decree passed by the trial

court as affirmed by the learned single Judge of the High

Court. Hence this appeal. Three contentions are put forth

before us as was done before the High Court in the Letters

Patent Appeals. Firstly, that the order under Section 77 of

the Act does not affect a decision rendered in civil suit

No. 11/67 inasmuch as question of title had been raised in

the suit. Secondly, that both the order under Section 77 of

the Act and the suit had been decided by a competent

authority or court and, therefore, the proceeding under

Section 77 of the Act could not operate as res judicata.

Lastly, it was contended that to challenge an order made

under Section 77 of the Act a suit was required to be filed

under Section 78 of the Act, then the court could construe

the suit out of which the appeal itself arises as a suit

under Section 77 of the Act. The normal rule of law is that

civil courts have jurisdiction to try all suits of civil

nature except those of which cognizance by them is either

expressly or impliedly excluded as provided under Section 9

of the Code of Civil Procedure but such exclusion is not

readily inferred and the presumption to be drawn must be in

favour of the existence rather than exclusion of

jurisdiction of the civil courts to try civil suit. The

test adopted in examining such a question is (i) whether the

legislative intent to exclude arises explicitly or by

necessary implication, and (ii) whether the statute in

question provides for adequate and satisfactory alternative

remedy to a party aggrieved by an order made under it. In

Dhulabhai & Ors. vs. The State of Madhya Pradesh & Anr.,

1968 (3) SCR 662, it was noticed that where a statute gives

finality to the orders of the special tribunals jurisdiction

of the civil courts must be held to be excluded if there is

adequate remedy to do what the civil courts would normally

do in a suit and such provision, however, does not exclude

those cases where the provisions of the particular Act have

not been complied with or the statutory tribunal has not

acted in conformity with the fundamental principles of

judicial procedure. The suit is prior to initiation of

proceedings under Section 77 of the Act and, therefore, the

said suit cannot be a suit as contemplated under Section 78

of the Act. The order under Section 77 of the Act is

conclusive which determined the issue that the suit property

is not subject to public charity or endowment upholding the

case of the defendants Nos. 4 to 12 that the property is

private property and is not an endowment. Such a question

could have been decided in a proceeding under Section

77(1)(d) of the Act as to whether any property is an

endowment and, if so, whether it is charitable endowment or

a religious endowment. A person aggrieved could file a suit

under Section 78 of the Act. Since no such suit was filed

the declaration made by the Deputy Commissioner under

Section 77 of the Act the order made by him concluded the

issue whether or not the suit property is a charitable or

religious endowment. After the Act came into force the

Deputy Commissioner was competent to deal with such a

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question. The subject matter in G.O. 1501 which was passed

on July 12, 1966; the prayer in the suit in O.S. No.

11/67 and the decision under Section 77 pertains to the same

question whether or not the property was an endowed

property. The Deputy Commissioner considered the very

question raised in the suit as to nature of the suit

property and held that it is private property and having

concluded as public charity or endowment that conclusion

became final. In the present case, there is no allegation

that the Deputy Commissioner had acted contrary to the

provisions of the Act or not having followed the fundamental

principles of judicial procedure. On the other hand, the

Deputy Commissioner having followed the due procedure made

the order and that order could have been challenged as

provided under Section 78 of the Act by way of a suit or by

an appeal. When neither of these courses was adopted, the

order made by the authority in its special jurisdiction must

be held to be conclusive and final. In the circumstances,

the view taken by the High Court appears to us to be correct

and does not call for interference. In the result, the

appeals are dismissed but in the circumstances of the case

there shall be no order as to costs.