Paidi Sriramamurthy. 4 Others. vs Collector,S.Of.A.P.Srikakulam. ...
2021 Latest Caselaw 4047 AP

              HON'BLE SRI JUSTICE M.VENKATA RAMANA

                    SECOND APPEAL No.266 of 2001

JUDGMENT:

The plaintiffs are the appellants. The respondents are the

defendants. The deceased 1st appellant, who is now represented by the

appellants 2 to 5 in this second appeal, filed a suit in O.S.No.40 of 1989

on the file of the Court of then Subordinate Judge (now Senior Civil

Judge), Rajam for the relief of permanent injunction against the

respondents restraining them from interfering with his possession and

enjoyment of the water tank (Koneru in Telugu) described in the plaint

schedule as well as fishery rights therein. This tank shall be hereinafter

referred to as, 'the suit tank'.

2. The case of the deceased 1st appellant in the plaint was that he

had purchased the suit tank from Smt. Kuna Chinnammi and her sons

under registered sale deed dated 11.12.1941 and since then he continued

to be in possession and enjoyment of the same enjoying fishery rights

therein.

3. Repaka was an estate village and after its abolition under the

Madras Estates Abolition and Conversion into Ryotwari Act, 1948, the

deceased 1st appellant applied for issuance of ryotwari patta under Section

11 of the above Act to the Settlement Officer, Visakhapatnam. He was not

successful in that effort upto the Director of Survey Settlement and Land

Records as well as Commissioner of Survey settlement and Land Records,

Hyderabad and that he also filed W.P.No.5045 of 1982 on the file of then

High Court of Andhra Pradesh at Hyderabad against the order of the MVR,J S.A.No.266 of 2001

Commissioner of Survey settlement and Land Records, Hyderabad. This

writ petition was also dismissed.

4. The specific case of the deceased 1st appellant was that the suit

tank was dug and was improved by his predecessor-in-title and thus a

private tank, which he has been in possession and enjoyment including

exercising right to fish in that tank. However, the 1st respondent without

any manner of right or interest began to make a claim through the

2nd respondent over this tank stating to the effect that it was handed over

to the Gram panchayat. The deceased 1st appellant also got issued a

notice under Section 80 CPC to the respondents and in spite of it, since

the threat from the respondents continued, he claimed in the plaint that

he was constrained to lay the suit.

5. The defence of both the respondents in their separate written

statements is identical.

6. Both of them denied the right, possession and interest over the

said tank claimed by the deceased 1st appellant and that it being a private

tank as well as its purchase by the deceased 1st appellant under the sale

deed dated 11.12.1941.

7. The respondent claimed that the suit tank is vested in the

Government and that the Tahsildar, Ponduru handed over the same to the

Gram Panchayat under the provisions of A.P.Gram Pachyats Act. Both of

them contended that the suit tank located in Tungapeta, H/o. Rapaka

village in an extent of Ac.1-00 is in S.No.31/13 and it being used for

drinking water purposes by the villagers. They further contended that this

tank is classified in the revenue records as Poramboke.

MVR,J S.A.No.266 of 2001

8. Admitting the efforts of the deceased 1st appellant in getting a

ryotwari patta in respect of this tank, including W.P.No.5045 of 1982 filed

by him in then High Court of Andhra Pradesh, Hyderabad, it is stated that

the suit as filed could not have been entertained, since the civil Court did

not have jurisdiction. Thus claiming that the deceased 1st appellant did not

have any right to seek the relief of permanent injunction and questioning

his bona fides in filing the suit, asserting that the Gram Panchayat has

every right to this tank where fishery rights are being exercised by it by

conducting public auction of such rights, both the respondents sought

dismissal of the suit with exemplary costs.

9. On the pleadings, the learned trial Judge settled the following

issues for trial:

1. Whether the plaintiff is entitled for permanent injunction as prayed for?

2. Whether the civil Court has no jurisdiction to try the suit?

3. Whether the suit is not maintainable?

4. To what relief?

10. The deceased 1st appellant examined himself as P.W.1 and

three other witnesses in support of his claim, while relying on Ex.A1 to

Ex.A7. On behalf of the 1st respondent, Senior Assistant then working in

Office of the Mandal Revenue Office, Ponduru was examined as D.W.1

and Ex.B1 to Ex.B3 were relied on by them.

11. On the material, the learned trial Judge held that the deceased

1st appellant failed to make out his right and interest to the suit tank and

also exclusive possession of the same in as much as the material on

record discloses that the villagers were using this tank for private MVR,J S.A.No.266 of 2001

purposes and as a public utility. Thus holding that the deceased 1st

appellant was not entitled for permanent injunction as claimed, further

observing that the civil Court has jurisdiction to entertain the suit and that

the suit as filed could not have been maintained particularly in view of

pendency of W.P.No.5045 of 1982 then on the file of this Court, the suit

was dismissed with costs by decree and judgment dated 04.03.1986.

12. The appellants presented A.S.No.51 of 1996 on the file of

District Court, Srikakulam against this decree and Judgment of the trial

Court, where by the decree and judgment dated 30.12.2000 they were

confirmed and thus the appeal was dismissed with costs.

13. The appellants presented this second appeal in these

circumstances.

14. The substantial question on which this second appeal was

admitted on 28.06.2001 is predominantly with reference to application of

the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into

Ryotwari) Act, 1948 and if the suit tank is covered by the above Act, since

according to the appellants the village where this tank is located is in an

agency area covered by Schedule-5 of the Constitution of India. Further

contention of the appellants is that there is no notification applying the

above act to these agency areas.

15. Heard Sri P.Lakshmana Rao, learned counsel for the appellants

and the learned Government Pleader for Arbitration and Appeals.

16. The suit tank is admittedly located in Tungapeta village,

H/o. Rapaka, which is part of Ponduru Taluk in Srikakulam District. The

appellants based their claim to this suit tank on Ex.A1-a registered sale MVR,J S.A.No.266 of 2001

deed dated 11.12.1941 under which the deceased 1st appellant is said to

have purchased certain properties including the suit tank from Smt. Kuna

Chinnammi and her sons.

17. Location of this tank in that village is not in dispute. However,

both the Courts below found that the water tank referred in the original of

Ex.A1 sale deed did not match the description stated in the plaint

schedule of this tank. Thus, both the Courts below held that identity of

the property is in dispute. Thus, right and interest claimed by the

appellants to this tank were not accepted by both the Courts below and

held that the appellants failed to make out and establish the same. The

learned appellate judge in para-7 of the judgment also considered the

boundaries, given in the plaint schedule, comparing with the description of

the tank stated in the sale deed (Ex.A1) which was described being of an

extent of Ac.2-00 in Tungapeta village. This is a finding on fact.

18. The learned appellate Judge also observed that there is no

evidence to hold that the suit tank was dug by the predecessors-in-

interest of the appellants nor any documentary proof was adduced

showing that the suit tank is a private tank belonging to the appellants.

Rejecting the oral evidence adduced on behalf of the appellants through

the witnesses, namely P.W.1 to P.W.4 and questioning their capacity to

speak of the nature of this tank, the claim of the appellants was rejected

by the appellate Court on reappraisal of the material.

19. Ex.B1 to Ex.B3 relied on by the 1st respondent being village

plan, entries in records of right and adangal relating to the suit tank

respectively as recorded in revenue records being a part of poramboke is MVR,J S.A.No.266 of 2001

accepted by the learned appellate Judge discussing in para-10 of his

judgment.

20. The learned appellate Judge also considered the manner of use

of this tank particularly with reference to source of water to this tank.

Referring to admission of P.W.2 that the suit tank receives water from the

sluice through a canal which is the only source to this tank and the

manner of user of this tank by the villagers, considering the admission of

P.W.1 in this context, the learned appellate Judge held that the authorities

of Survey and Settlement Department are right in refusing to grant patta

in respect of this tank. Predominant consideration weighed with the

learned appellate Judge was that the source of this tank was through an

open source like canal and that this tank is being used by the villagers for

long. Thus holding that sufficient evidence has not been adduced by the

appellants, including the exclusive possession claimed by them, the

learned appellate Judge agreed with the findings recorded by the learned

trial Judge in this context.

21. An attempt is made on behalf of the appellants by their learned

counsel Sri P.Lakshmana Rao relying on Kadiyam Subba Rao vs.State

of Andhra Padesh, represented by Authorised Officer,

Bhadrachalam Division1 contending that the private tank did not stand

transferred to the Government consequent upon the abolition of the

estate and therefore, the Courts below are not right in refusing the relief

to the appellants. This ruling was cited before both the Courts below and

such contention on behalf of the appellants was rejected, rightly. This

. 1978(2) APLJ, 106 MVR,J S.A.No.266 of 2001

ruling is in relation to application of Andhra Pradesh Telangana Area

Mahals (Abolition and Conversion into Ryotwari) Regulation Act, 1969 in

consonance with Andhra Prasad Land Reforms (Ceiling on Agricultural

Holdings) Act, 1973. Therefore, the subject matter considered by this

Court in the above ruling was completely different than the present

situation on hand. Therefore, it cannot be an authority for the proposition

sought to be canvassed on behalf of the appellants in this second appeal.

22. Reliance is also placed by the learned counsel for the

appellants in Smt. Sarladevi widow of Kundanlal Bandawar,

Dharampeth, Nagpur Vs. Shailesh s/o Gourishankar Namdeo,

Tilaknagar, Nagpur2. It was a ruling where possession of the property

was considered and thus grant of injunction to protect such possession

was justified. In the above ruling not only judgment of Hon'ble Supreme

Court M.Kallappa Setty vs. M.V.Lakshminarayana Rao (AIR 1972

SC 2299), a judgment of one of the learned Judges of Kerala High Court

in Karthiyayani Amma v. Govindan (AIR 1980 Ker 224) was relied

on.

23. However, the fact situation in this case is not making out

exclusive possession and enjoyment of this tank by the appellants. Apart

from there being a serious question of identity of the tank to which they

have been claiming right and interest, in as much as it being put to use by

all the villagers since long, necessary ingredients relating to grant of

injunctive relief in terms of Section 38 of the Specific Relief Act, are not

established. The learned appellate Judge considered this ruling and its

. AIR 1996 BOMBAY 98 MVR,J S.A.No.266 of 2001

applicability in right perspective and observed that this ruling of Bombay

High Court did not help the appellants. There are no reasons good enough

to differ from this view.

24. The main contention advanced on behalf of the appellants in

this second appeal as is stated in the substantial questions of law

proposed on their behalf is want of notification by the Government of

India applying Andhra Pradesh (Andhra Area) Estates (Abolition and

Conversion into Ryotwari Pattas) Act under Schedule-5 of the Constitution

of India. In the memorandum of this second appeal, on behalf of the

appellants themselves it is stated that this plea was never raised in the

Courts below and thus it is being raised for the first time.

25. No material is placed to show that Rapaka village is a part of

the Schedule area and remaining within the scope of application of 5th

schedule of the Constitution of India. It is the major hurdle for the

appellants to get over in this second appeal. It is also not established that

the Estates Abolition Act referred to above is not applicable to such

villages. When this is the only substantial question of law which the

appellants tried to project in this second appeal apart from the question

relating to possession and enjoyment of the suit tank as of right, it is

rather difficult to accept the contentions of the appellants in this second

appeal.

26. The entire material considered by the Courts below is purely

based on questions of fact and proof in relation thereto. The proposed

substantial question of law sought to be raised by the appellants for the

first time in this second appeal, is not as such established.

MVR,J S.A.No.266 of 2001

27. Therefore, this Court having has been satisfied that there are

no substantial question of law requiring reconsideration of this matter and

its determination in terms of Section 100 CPC, this second appeal has to

be dismissed. The learned Government Pleader for Appeals referred to

these facts and circumstances rightly calling for no interference with the

consistent view taken by both the Courts below recording concurrent

findings.

28. In the result, the second appeal is dismissed confirming the

decrees and judgments of both the Courts below. The appellants are

directed to pay costs in this second appeal to the respondents and shall

bear their own costs.

As a sequel, pending miscellaneous petitions, if any, stand closed.

Interim Orders, if any, stand vacated.

_______________________ JUSTICE M.VENKATA RAMANA

Dt:20.10.2021 RR MVR,J S.A.No.266 of 2001

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL No.266 Of 2001

Dt:20.10.2021

RR