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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.