Andhra Pradesh High Court – Amravati
Sri V.G.K.Yachendra vs The State Of Andhra Pradesh on 30 January, 2025
APHC010614132003
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
THURSDAY ,THE THIRTIETH DAY OF JANUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 827/2003
Between:
Sri V.g.k.yachendra and Others ...APPELLANT(S)
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. P HEMACHANDRA
2. S V S RAVI KIRAN
3. .
Counsel for the Respondent(S):
1. GP FOR APPEALS
2. Sireesha Rani Vallabhaneni,Standing Counsel For Municipalities
3. GP FOR PANCHAYAT RAJ RURAL DEV
The Court made the following:
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.827 OF 2003
JUDGMENT:
–
This Appeal, under Section 96 of the Code of Civil Procedure [for short
„the C.P.C.‟], is filed by the Appellants challenging the decree and judgment,
dated 16.01.2003 in O.S.No.89 of 1994 passed by the Senior Civil Judge,
Gudur [for short „the trial Court‟].
2. The appellant Nos.1 and 2 herein are the plaintiffs and respondent
Nos.1 to 3 herein are the defendants in O.S.No.89 of 1994. It is to be noted
here during the pendency of the appeal, the 1st appellant died and his legal
representatives are brought on record as appellant Nos.3 and 4.
3. The appellants/plaintiffs filed the suit for cancellation of the gift deed,
dated 04.10.1968 and for recovery of possession of the plaint schedule
property and also remove the unauthorized encroachments therein.
4. Both the parties in the Appeal will be referred to as they are arrayed
before the trial Court.
5. The brief averments of the plaint, in O.S.No.89 of 1994, are as under:
The suit schedule property was gifted in favour of the 2nd
defendant/Panchayat for the purpose of constructing a bus stand. The gift is a
conditional gift which by non-fulfillment of the conditions adumbrated therein
stands cancelled and the property gifted reverts to the donor and his heirs.
The plaintiffs have called upon the defendants to surrender the schedule
mentioned property as per the notice, dated 14.06.1992 and on 25.09.1992.
The 1st defendant did not reply. The 2nd defendant gave notice contending
that 2nd defendant is entitled to a clear two months notice under Section 144
of the A.P.G.P. Act and that the plaintiffs are constrained to file the suit to
deliver possession of the suit property to the plaintiffs and direct the
defendants to remove the unauthorized encroachments in the suit site.
6. The brief averments in the written statement filed by the 3rd
defendant is as follows:
The father of plaintiffs by name Late Raja Velugoti Sarvanga Kumara
Krishna Yachandra gifted the plaint schedule site in favour of Venkatagiri
Gram Pancyayat under a registered document bearing No.987/68, dated
04.10.1968 for the purpose of providing bus stand, tea stalls and shelter in
that place. Accordingly, the Gram Panchayat taken possession and
constructed shelter in the plaint schedule site for the benefit of the
passengers. The Panchayat also installed a bore-well in the said site for
drinking water purpose to the passengers. The Panchayat also constructed
urinals and latrines on the eastern side of the plaint schedule site for the
benefit of the passengers. The Panchayat is taking necessary steps for
evicting the unauthorized encroachers. When the government proposed to
construct RTC bus stand near Chevireddypalli Village at a distance of 3 kms
from Venkatagiri, the Gram Panchayat passed a resolution vide PR.No.265,
dated 30.09.1886 for the construction of river side elementary school building
in the plaint schedule site on the ground that the plaint schedule site may not
be used for bus stand purpose. The 1st plaintiff filed a suit O.S.No.55 of 1987,
on the file of District Munsif, Venkatagiri for grant of permanent injunction
restraining the defendants to construct a school building in the suit schedule
site. The District Munsif also granted temporary injunction to the same effect
till the disposal of the said suit. Finally, the said suit was decreed on
31.12.1990 restraining the defendants from constructing a school building in
the schedule mentioned site. Therefore, the construction of the school building
was stopped. The Gram Panchayat passed a resolution, dated 20.10.1994
cancelling the previous resolution, dated 30.09.1986. The government
provided a by-pass road from Bangarupet to Venkatagiri town for the
convenience of the passengers. The plaint schedule site is being used
continuously for the bus stand purpose only.
7. Based on the above pleadings, the trial Court framed the following
issues:
(1) Whether the plaintiffs are entitled for cancellation of the gift deed,
dated 04.10.1968 as prayed?
(2) Whether the plaintiffs are entitled for vacant possession of plaint
schedule property?
(3) Whether the suit is bad for want of proper notices under Sections 80
of CPC and 144 of A.P.G.F. Act?
(4) Whether the Court fee paid is not correct?
(5) To what relief?
The trial Court also framed following additional issues on 26.07.1999:
[
(1) Whether the suit is within limitation?
(2) Whether the value of the plaint schedule property is Rs.5,00,000/- as
per the present market value?
(3) Whether there is a cause of action? If so, the suit is liable to be
dismissed?
8. During the course of trial in the trial Court, on behalf of the Plaintiffs,
PW1 was examined and Ex.A1 to Ex.A5 were marked. On behalf of the
Defendants, DW1 to DW3 were examined and Ex.B1 to B8 and Ex.C.1 to
Ex.C.3 were marked.
9. After completion of the trial and hearing the arguments of both sides,
the trial Court dismissed the suit vide its judgment, dated 16.01.2003, against
which the present appeal is preferred by the plaintiffs in the suit questioning
the Decree and Judgment passed by the trial Court.
10. Heard Sri P. Hemachandra, learned counsel for the appellants and
heard the learned Government Pleader for appeals appearing for respondent
Nos.1 to 3 and heard Smt.V. Shireesha Rani, learned Standing Counsel for
Municipalities appearing for 4th respondent.
11. Learned counsel for the appellants would contend that the decree
and judgment passed by the trial Court is contrary to law, weight of evidence
and probabilities of the case and the trial Court failed to assign any provision
of law on limitation that the suit is to be filed within three years. He would
further contend that the trial Court also failed to notice that under Article 66,
the forfeiture on the breach of condition constituted the cause of action on
31.12.1990 and continued in 1992 as well on the dates of issuance of notices
as mentioned in the plaint, as such, the suit is filed on 11.03.1994 which is
within 12 years. He would further contend that the learned trial Judge
dismissed the suit and the decree and judgment passed by the learned trial
Judge is contrary to law and the same may be set aside by allowing this
appeal.
12. Per contra, learned counsel for the respondents/defendants would
contend that on appreciation of the entire evidence on record, the learned trial
Judge rightly dismissed the suit and there is no need to interfere with the
findings given by the learned trial Judge and the appeal may be dismissed by
confirming the decree and judgment passed by the learned trial Judge.
13. Now the points for determination are:
1) Whether the suit is barred by limitation?
2) Whether the plaintiffs are entitled the relief of cancellation of gift
deed, dated 04.10.1968 and also for recovery of possession of the
plaint schedule property?
3) Whether the trial Court is justified in dismissing the suit?
14. Point No.1:
Whether the suit is barred by limitation?
The undisputed facts are the donee i.e., the Executive Officer, Gram
Panchayat, Venkatagiri, approached the donor who is none other than the
father of plaintiffs with a request to give the schedule mentioned property on
free of cost as a gift to the panchayat for construction of a panchayat bus
stand to be used as bus stand and other connected sheds for the benefit of
the general public. Having accepted the same, the donor i.e., the father of the
plaintiffs executed a registered conditional gift deed, dated 04.10.1968 in
favour of Gram Panchayat, Venkatagiri and a specific condition was made by
the donor in the gift deed is that if the property is not used for the purpose of
constructing bus stand and other connected sheds in the plaint schedule
property for the benefit of the public, then the property has to be reverted back
to the donor or his legal representatives. The material on record reveals that
when the panchayat tried to construct a riverside school building in the plaint
schedule property in the year 1986 by passing a resolution, the 1st plaintiff
herein filed O.S.No.55 of 1987 before the District Munsif‟s Court, Venkatagiri
against the gram panchayat and the government i.e., defendants herein for
claiming the relief of permanent injunction restraining the defendants and
others for construction of riverside school building in the plaint schedule
property. The suit was decreed on 31.12.1990 on contest by both sides and
the same is ended with finality.
15. It is a fact that the plaint schedule property was gifted in favour of
Gram Panchayat, Venkatagiri for particular purpose i.e., for construction of a
bus shelter at Venkatagiri for the purpose of general public. If the schedule
property is not used for the aforesaid purpose, then the property has to be
reverted back to the donor or his legal representatives. It is also undisputed
fact that on 30.09.1986 the Gram Panchayat, Venkatagiri passed a resolution
vide resolution No.265, dated 30.09.1986 for construction of a riverside
elementary school building in the plaint schedule property by violating the
condition as stipulated in the original of Ex.A.1 gift settlement deed. In the
written statement itself the Executive Officer of Gram Panchayat, Venkatagiri
pleaded that the Gram Panchayat passed a resolution vide Resolution
No.265, dated 30.09.1986 for construction of a riverside elementary school
building in the plaint schedule property on the ground that the plaint schedule
property may not be used for bus stand purpose and the District Collector also
allotted funds for the construction of school building as the government
accorded sanction for the same. The aforesaid own admissions of the
Executive Officer of Gram Panchayat, Venkatagiri in the written statement go
to show that a resolution was passed by the gram panchayat, Venkatagiri vide
resolution No.265, dated 30.09.1986 for construction of riverside elementary
school building in the plaint schedule property and the government also
passed administrative sanction by allotting required funds for the construction
of a school building in the plaint schedule property and as such the specific
condition for which purpose the plaint schedule property was gifted by the
father of plaintiffs herein was broken on 30.09.1986. Therefore, the suit for
recovery of possession of the plaint schedule property and the relief of
cancellation of gift deed has to be filed within 12 years from the date of
30.09.1986 i.e., when the condition in Ex.A.1 gift deed was broken.
Admittedly, the donee violated the terms and conditions mentioned in Ex.A.1
gift deed. Admittedly, the suit is filed in the year 1994 within 8 years from the
date when the condition in Ex.A.1 gift deed was broken. The learned trial
Judge came to a conclusion that Article 59 of the Limitation Act is applicable
and the suit has to be filed within 3 years from the date of gift deed and that
the suit is barred by limitation. The said finding given by the learned trial
Judge is absolutely incorrect.
Article 59 of the Limitation Act reads as follows:
To cancel or set aside an Three When the facts entitling the plaintiff to have
instrument or decree or for years the instrument or decree cancelled or set
the rescission of a contract. aside or the contract rescinded first become
known to him.
Article 66 of the Limitation Act reads as follows:
For possession of immovable property Twelve When the forfeiture is
when the plaintiff has become entitled to years incurred or the condition is
possession by reason of any forfeiture or broken.
breach of condition.
In the case on hand, the father of the plaintiffs gifted the plaint schedule
property in favour of Gram Panchayat, Venkatagiri with a specific condition
that the same has to be used for construction of bus shelter in the plaint
schedule property for the purpose of general public, otherwise it has to be
reverted back to the donor or his legal representatives. Admittedly, in the
case on hand, after taking possession of the plaint schedule property, the
panchayat passed a resolution vide resolution No.265, dated 30.09.1986 for
construction of riverside elementary school building in the plaint schedule
property and the government also accorded administrative sanction by
providing required funds as per the own admission of the Executive Officer of
the gram panchayat in the written statement itself.
16. As stated supra, in the gift settlement deed, a specific condition is
made by the donor that if the property is not used for the construction of a bus
stand for which purpose, the property was gifted to the gram panchayat,
Venkatagiri and if the condition is broken, the property has to be reverted back
to the donor or his legal representatives. The intention of the donor is clear
that for particular object the property has given to 2nd defendant-panchayat.
Now the 2nd defendant-panchayat upgraded as a municipality in view of order
issued by the government and the appellants herein consequently amended
the plaint and the Commissioner, Venkatagiri Municipality is also added as 4th
respondent herein. It is relevant to say after passing resolution by the
panchayat, the 1st plaintiff herein approached the Junior Civil Judge‟s Court,
Venkatagiri and filed a suit for prohibitory injunction restraining the defendants
and their men from construction of school building in the plaint schedule
property. The said suit was decreed on contest by both the parties and the
same was ended with finality. As stated supra, the specific condition for which
purpose the property was gifted to the panchayat was broken, therefore, the
property has to be reverted back to the donor or his legal representatives. The
donor was not alive and his legal representatives i.e., plaintiffs are alive,
therefore, the property has to be reverted back to the plaintiffs since the
specific condition incorporated in the gift deed for which purpose the property
was gifted by the father of the plaintiffs is broken and object of the gift is
defeated.
17. Learned counsel for the respondents/defendants placed a reliance
of Kanne Venkataramudu and others vs. Congregation of Mother of
Carnel, Head Office at Alwaye, Kerala State, represented by its superior
of St. Joseph Convent, Pattikonda, Kurnool District and others in Second
Appeal No.329 of 2013 of composite High Court of Andhra Pradesh at
Hyderabad.
The facts in the aforesaid case are a second appeal is filed against the
concurrent findings given by both the Courts below. The issues framed before
the trial Court are whether the father of the plaintiffs executed a registered gift
settlement deed, dated 12.01.1976 with undue influence of 1st defendant?
The ratio laid down in the aforesaid case law is “under Article 59 of
Schedule I of the Limitation Act, 1963, limitation for filing a suit for cancellation
or setting aside an instrument or decree or for the recision of a contract is
three years from the day when the facts entitling the plaintiff to have the
instrument or decree cancelled became known to him for the first time.”
The facts in the aforesaid case are quite different to the instant case.
Therefore, the ratio laid down in the aforesaid case law is not applicable to the
present facts of the case.
18. In a case of State of Uttar Pradesh vs. Bansi Dhar and others1,
the Apex Court held as follows:
1
(1974) 1 Supreme Court cases 446
In Halsbury’s Laws of England (3rd edn.) the rule has been thus
expressed :
“Where, however, the particular mode of. application prescribed by the
donor was the essence of his intention (which may be shown by a
condition or by particularity of language) and that mode is incapable of
being performed, there is nothing left upon which the Court can found its
jurisdiction so that in such circumstances the Court has no power to
direct any other charitable application in place of that which has failed.”
(p. 318; para 654)
So much so, although a charity once established does not die (though its
nature may be changed) the gift must first take effect which takes us to
the question of conditional gifts. The law is clear in this area and is found
stated in Halsbury:
“611. Conditions precedent A charitable gift my be made subject to conditions
precedent, as that the institution which is to benefit shall perform some act or
that if the trust is declared unlawful it shall revert, or that the gift shall take effect
only if the testator’s estate be sufficient for the intended object, or amount to a
certain sum or that a bequest to a hospital shall not take effect if at the
testator’s death the hospital has ceased to be run on a voluntary system and
come under state, control, or if it comes under government control. The gift fails
if the condition precedent is impossible, or is not satisfied, or need not be
fulfilled within the perpetuity period.”
The Apex Court further held as follows:
“In the, law of real property the vesting of an estate can be made to
depend on a condition precedent and the transfer fails if the condition is
not fulfilled (c.f.ss. 25 & 26, T.P. Act). We. may sum up the situation now.
If the donation by Dubey was conditional the Government was a mere
custodian of the cash till the condition was complied with and if the
performance thereof was defeated by Government, the gift did not take
effect.”
The law is well settled by the Apex Court in Thakur Raghunath Ji
Maharaj and another vs. Ramesh Chandra2 as follows:
2
(2001) 5 Supreme Court Cases 18
“Article 54 of the Limitation Act relates to specific performance of a
contract. It has no application at all to the present suit, as the suit filed
was not for specific performance but one for possession based on
reason of forfeiture by breach of condition. Article 66 prescribes period of
limitation as 12 years for filing a suit for possession of immovable
property when the plaintiff has become entitled to possession by reason
of any forfeiture on breach of condition and the time begins to run when
the forfeiture is incurred or the condition is broken.”
19. For the aforesaid reasons and in view of the law laid down by the
Apex Court, as stated supra, Article 66 of the Limitation Act is applicable to the
present case. Therefore, the suit filed by the plaintiffs is within a period of
limitation.
Accordingly, point No.1 is answered in favour of the appellants/
plaintiffs.
20. Point Nos.2 and 3:
Whether the plaintiffs are entitled the relief of cancellation of gift
deed, dated 04.10.1968 and also for recovery of possession of the
plaint schedule property?
Whether the trial Court is justified in dismissing the suit?
The case of the plaintiffs is that their father executed a conditional gift
deed, dated 04.10.1968 in favour of Venkatagiri Gram Panchayat at request of
the Panchayat for the purpose of providing bus stand together with tea stalls
and shelter for the general public who are visiting the bus stand in the said
place and Gram Panchayat taken possession of the schedule property. The
plaintiffs further pleaded that if the aforesaid object of the gifted property is
defeated and if the property used for other than the purpose mentioned in the
gift deed, then the property has to be reverted back to donor or his legal
representatives. As stated supra, the material on record clearly reveals that
the Gram Panchayat passed a resolution vide resolution No.265, dated
30.09.1986 for construction of riverside elementary school building in the
schedule property and the government also accorded administrative sanction
by allocating required funds for construction of the school building. The said
plea has been taken by the Executive Officer of Gram Panchayat in the written
statement itself and that the plaintiffs are constrained to file the suit for
cancellation of the gift settlement deed and also recover of possession.
21. The evidence of P.W.1 goes to show that the Gram Panchayat has
not established the bus stand in the plaint schedule property and the bus
stand is situated in Chevireddipalli village and there is no other bus stand
except RTC bus stand as stated supra in Venkatagiri and the gram panchayat,
Venkatagiri has not taken any steps in establishing bus stand in the plaint
schedule property. The evidence of P.W.1 further goes to show that the
purpose for which the gift deed was executed by their father is not fulfilled.
The plaintiffs issued a legal notice to all the defendants and the defendants
received the same. In cross examination it was admitted by P.w.1 that after
execution of gift deed, the gram panchayat took possession over the plaint
schedule property. In cross examination nothing was elicited by the
defendants to discredit the testimony of P.W.1. In cross examination by the
learned counsel for the defendants, the evidence of P.W.1 was not shattered
on the material aspects of the case.
22. The Executive Officer of 2nd defendant-Gram Panchayat is
examined as D.W.1. He admits in his evidence in cross examination itself that
the gram panchayat has not filed any plan for construction of bus shelter on
other side of the plaint schedule property and the bus shelter is at a distance
of about 25 yards from the plaint schedule property and the encroachments in
front of the plaint schedule property has been inexistence for the last 25 years
and the buses cannot enter into the plaint schedule property and the same is
existing for the last 15 years. He further admits in his evidence in cross
examination itself that the District Revenue Officer approved the proposal of
Gram Panchayat, Venkatagiri to acquire Ac.0-48 cents of private land in
Sy.No.227/10 for the construction of a bus stand on payment of market value
of Rs.1,638/- as per order, dated 14.02.1974. The above admissions of 2nd
defendant goes to show that the gram panchayat paid necessary amount for
construction of a bus stand at Venkatagiri other than the plaint schedule
property. The defendants relied on the evidence of D.W.2 and D.W.3. D.W.2
admits in his evidence in cross examination itself that he cannot say the
boundaries of the plaint schedule property and he cannot say the extent of the
plaint schedule property and the buses are not going inside the plaint
schedule property. Therefore, his evidence is no way helpful to the defendants
to prove the defence taken by them in the written statement. D.W.3 also
admitted in his evidence in chief examination itself that RTC bus stand is at a
distance of 2 or 3 kms., from the plaint schedule property.
23. Ex.C.2 the report of Advocate-Commissioner clearly goes to show
that the Advocate-Commissioner was appointed by the trial Court to visit the
plaint schedule property and to note down the physical features of the plaint
schedule property and the learned Advocate-Commissioner visited the plaint
schedule property in the presence of both parties and filed his report. His
report goes to show that all the constructions in the suit site are made by
private parties and there is nothing to indicate that it is for bus stand. The
evidence of P.W.1 coupled with Ex.C.2 and coupled with own admissions of
D.W.1 clearly proves that bus band is situated at a different place and the
purpose for which the property was gifted by the father of plaintiffs is defeated
and the condition made in Ex.A.1 original gift settlement deed is broken.
24. The intention of the donor is makes it clear that the plaint schedule
property has to be used only for specific purpose by the panchayat for
construction of a bus stand. Another recital made in the gift deed is if the
specific condition incorporated in the gift deed is broken, the property has to
be reverted back to the donor or his legal representatives. The terms and
conditions in the gift deed are clearly violated by the defendants and the
object of the donor to gift the property is defeated. Therefore, the specific
condition incorporated in Ex.A.1 gift settlement deed is broken and not fulfilled
by the gram panchayat, the property has to be reverted back to the donor or
his legal representatives. Admittedly, the donor was no more, the plaintiffs are
no other than the legal representatives of the donor, therefore, the plaint
schedule property has to be reverted back to the plaintiffs. Therefore, the
plaintiffs are entitled the relief of recovery of possession of the plaint schedule
property since the object of the gift for which the father of the plaintiffs is gifted
the property is defeated. In view of the specific recitals incorporated in
conditional gift deed i.e., the original of Ex.A.1, since the condition was broken
on 30.09.1986 on which date the panchayat passed resolution to establish the
riverside elementary school building and also government accorded
administrative sanction for providing required funds to construct the school
building in the plaint schedule property and in view of the specific recitals
made by the donor in the gift deed, the property has to be reverted back to the
legal representatives of the donor since donor was not alive.
25. For the aforesaid reasons, the plaintiffs are entitled to the relief of
recovery of possession of the plaint schedule property since the specific
condition incorporated in gift deed is broken and the gift deed is a conditional
gift deed. The object for which purpose the property was gifted by the father of
plaintiffs is broken and the suit is also filed within a period of limitation i.e.,
within 12 years as per Article 66 of the Limitation Act from the date when the
condition in gift deed is broken. Therefore, the gift deed is liable to be
cancelled and the plaintiffs are entitled for recovery of possession of the plaint
schedule property.
26. In the result, the appeal is allowed by setting aside the decree and
judgment, dated 16.01.2003 in O.S.No.89 of 1994 passed by the Senior Civil
Judge, Gudur and consequently the suit in O.S.No.138 1984 is hereby
decreed in favour of the plaintiffs by granting recovery of possession of the
plaint schedule property and the gift deed, dated 04.10.1968 is hereby
cancelled. The respondents/defendants are directed to deliver the vacant
possession of the plaint schedule property to the plaintiffs within a period of
four (04) months from the date of judgment; failing which the plaintiffs are
entitled to take necessary steps as per law. Considering the facts and
circumstances of the case, each party do bear their own costs in the suit as
well as in the appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall
stand closed.
_________________________
V. GOPALA KRISHNA RAO, J
Date: 30.01.2025
PGR
