Visakhapatnam (For Short "The ... vs Vasavi Cooperative Housing ...
2023 Latest Caselaw 3861 AP

        THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                     APPEAL SUIT No.520 OF 2009

JUDGMENT:

1. Aggrieved by the Decree and Judgment dated 30.01.2009 in O.S.

No.37 of 2004 passed by the learned Principal District Judge,

Visakhapatnam (for short "the trial Court"), the appellants/plaintiffs

preferred this Appeal questioning the correctness of the Decree and

Judgment passed by the Trial Court.

2. For the sake of convenience, the parties will hereinafter be referred to

as arrayed in the Original Suit.

3. The plaintiffs filed a suit for declaration of the plaintiffs' right and title

in respect of the plaint schedule property, which is an extent of 1600

square yards in S.No.71/3 in Peda Waltair, with a thatched house situated

therein and for consequential relief of permanent injunction restraining the

defendants from interfering with the possession and enjoyment of the

same.

4. The plaintiffs' case is that one Neelayya was the absolute owner of the

schedule property, which originally belonged to Rani Rukmini Devi and

Kamala Devi, the estate holders. For over 100 years, the plaintiffs' family

occupied a total extent of Ac.3.77 cents paying taxes to the estate holders

while enjoying the property as tenants. Neelayya's possession of the

property persisted with all rights even after the abolition of the estate.

While the matter stood thus, an extent of Ac.21.30 cents in several survey

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numbers, including the suit schedule property, was sought to be acquired

for a public purpose. Neelayya initiated legal action vide W.P. No.3888 of

1980 challenging the acquisition's legality. Subsequently, Award

No.8/1980 was passed on 23.06.1980 and took possession of Ac.17.50

cents, but the extent of Ac.3.77 cents belonging to the plaintiffs' family was

not taken possession because of the High Court orders. After that, on

18.12.1980, the High Court modified the order directing the defendant to

take possession of the property and deposit the amount for the acquired

land in a civil court pending adjudication under Sections 30 and 31 of the

Land Acquisition Act. Despite the orders of the High Court, there was no

delivery of possession of the schedule property, and the plaintiffs have been

in continuous possession of the property. Later, a complaint was also given

to Lokayukta in Complaint No.3763/1985, and the plaintiffs have been

residing in the suit schedule property by constructing a thatched house

with all amenities.

5. (a) The defendant filed a written statement refuting the allegations

outlined in the plaint contending that the plaintiffs and their predecessors

are not the rightful owners. The Government, upon the initiation of

V.U.D.A, acquired a total expanse of Ac.105.38 cents in Pedawaltair and

Venkojipalem Villages for the implementation of Muvvalavanipalem,

I.U.D.P. scheme under different awards in different extents. Award

No.8/1980 is one such award for acquiring Ac.21.30 cents, Smt. Rani

Rukmini Devi, Rajhamatha of Gangapur and Smt. Rani Kamala Devi and

Rani Saheba of Dasapalla were the absolute owners of Ac.3.77 cents in

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S.No.71/3A. Each of them possessed an equal share in the said land.

Moreover, Smt. Rani Kamala Devi alone was the absolute owner of Ac.0.40

cents out of Ac.0.80 cents in S.No.68/3, the other Ac.0.40 cents having

been sold away. Following the award, the possession of the aforesaid

mentioned properties was delivered to the Land Acquisition Officer. It was

undertaken by the late M.Venkata Rao on behalf of Smt. Rani Rukmini

Devi and late P.Ramachandra Rao, on behalf of Smt. Rani Kamala Devi as

their agent on 24.06.1980.

(b) Late Neelayya resided in a structure on the land and asserted

ownership over Ac.3.77 cents within S.No.71/3A. However, the Land

Acquisition Officer rejected his ownership claim, categorizing him as

entitled solely to compensation for the structure (hut) on the land.

Compensation was also awarded for the structures built by others on

the land, although Neelayya did not come forward to receive the

compensation for the superstructure. The Land Acquisition Officer

ordered the compensation to be deposited into Revenue deposits.

(c) Subsequently, Neelayya initiated a legal proceeding through O.S. No.459

of 1982, but the suit was ultimately dismissed. The land was admittedly

acquired and vested in the Government without any encumbrances and

the suit for declaration of title regarding the plaint schedule land is not

at all maintainable.

6. Based on the above pleadings, the Trial Court framed the issues,

which are as under:-

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1) Whether the plaintiff is entitled to the declaration and consequential permanent injunction?

2) Whether the schedule land was acquired and vested with the Government?

3) Whether the suit is bad for non-joinder of the Government (L.A.) as a party?

4) Whether the remedy of the plaintiff is to receive the compensation they are entitled?

5) To what relief?

7. On behalf of the plaintiffs, P.Ws.1 and 2 were got examined and

marked Exs.A1 to A16 and through P.W.2, Exs.X1 and X2 were marked,

and on behalf of the defendant, D.W.1 was examined and marked Exs.B1

to B6.

8. After considering the evidence on record, the trial Court dismissed the

suit with costs.

9. I have heard the arguments of the learned counsel for both parties.

10. Sri K. Sita Ram, learned counsel representing the appellants/plaintiffs

put forth an argument asserting that the trial Court should have

recognized the respondents' acknowledgment of the appellants' possession,

thereby warranting the safeguarding of said possession. It's contended that

the trial Court committed an error by noting that the appellants had not

yet presented any evidence showcasing their possession of the land.

Moreover, it failed to acknowledge that the 1st respondent,

a corporate entity, is only entitled to assert property

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possession claims within a twelve-year timeframe. Furthermore, it's

asserted that the trial Court overlooked the principle that enduring and

unbroken possession confers ownership rights upon those in possession,

thereby entitling them to assert their interests. The argument extends to

the trial Court's oversight in recognizing that an alleged transfer of

possession facilitated by unrelated parties does not constitute a valid

transfer of property from the lawful occupants. The trial Court's omission

to acknowledge that the respondents failed to establish possession of the

land for a span exceeding 30 years, implying an abandonment of their

acquisition claim, is highlighted. Additionally, it's argued that despite the

land's transfer to the Government free from any encumbrances,

subsequently handed over to the 1st respondent, the appellants possess

the right to assert adverse possession rights against the respondents. This

particular right, it's emphasized, should have been subject to

determination by the trial Court.

11. Per contra, Sri V. Surya Kiran Kumar, learned Standing Counsel for

V.M.R.D.A. and M.U.D.A. appearing for the respondents/defendants would

contend that the trial Court correctly appreciated the facts of the case and

reached a correct conclusion. The reasons given by the trial Court do not

require any modifications.

12. Having regard to the pleadings in the suit, the findings recorded by

the Trial Court and in the light of the rival contentions and submissions

made on either side before this Court, the points would arise for

determination are:

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1) Whether the Trial Court justified in holding that the plaintiffs are entitled to the reliefs of title, possession and injunction?

2) Whether the decree and Judgment passed by the Trial Court need any interference?

POINT NOs.1 & 2:

13. It is settled law that the plaintiffs in a suit for declaration of title and

possession could succeed only on the strength of their title, and that could

be done only by adducing sufficient evidence to discharge the onus on it,

irrespective of the question whether the defendants have proved their case

or not. In this regard, a reference can be made to a decision reported in

Union of India and others vs Vasavi Cooperative Housing Society

Limited and others1.

14. The plaint schedule property is an extent of 1600 Square Yards in

S.No.71/3 in Peda Waltair, with a thatched house situated therein. It is not

in dispute that the land of Ac.3.77 cents in S.No.71/3A was acquired by

the Government, and Ex.X1-Award has been passed and has become final.

The plaintiffs' case is centered around an extent of Ac.3.77 cents in

S.No.71/3A originally belonged to Smt. Rani Rukmini Devi and Rani

Kamaladevi, who were the estate holders, the plaintiffs' family, have had an

extent of Ac.3.77 cents for more than 100 years and paying taxes to the

estate holders and enjoying the property as a tenant. Admittedly, one

Neelayya, an ancestor of the plaintiffs, filed W.P. No.3888 of 1980

contesting the acquisition process, thereafter an Award was passed on

1 (2014) 2 SCC 269

T.M.R.,J A.S. No.520 of 2009

23.06.1980 vide Award No.8 of 1980 and took possession of Ac.17.50

cents, but the extent of Ac.3.77 cents belongs to the plaintiffs family was

not taken possession because of the High Court's Order.

15. At this juncture, it is pertinent to extract the relevant portion of the

Order in W.P. No.3888 of 1980 of the High Court (Ex.B.5), which is as

under:

"In the petition filed by Palikala Neelayya, he claimed the entire land as belonging to himself to the exclusion of Rani Rukmini Devi and another. The Collector rejected this on the ground that Neelayya had yet to show any document establishing his title to the land either as owner or as a tenant. It is, under those circumstances, the present writ petition is filed.

Although the grounds on which the Collector had refused to make a reference do not appear to me to be insubstantial, I think that the language of Section 18 does not vest the Collector with any choice to reject the petition filed by the petitioner for making a reference to a civil court. Section 6 notification has already shown the writ petitioner was a tenant. That declaration does not show the extent of his interest, even as a tenant. The petitioner participated in the award inquiry. It follows, therefore, that the writ petitioner is a person interested within the meaning of Section 18(1) of the Land Acquisition Act. As he had made a claim within six weeks from the date of the Collector's award, the Collector appears to me to be without any power to reject his request to refer the dispute to a civil court; however, perverse he might think the claim to be. I, therefore, direct the respondents to make a reference to a civil court under Sections 18 and 30 of the Land Acquisition Act regarding the compensation to be paid for the land of Acs.3.77 cents situated in S.No.71/3-a of Pedawaltair village, Visakhapatnam district. The writ petition is accordingly allowed with costs".

16. As rightly observed by the trial Court, the plaintiffs are not the owners

of the property of Ac.3.77 cents. The plaintiffs' assert that the 1600 square

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yards property, referred to as 'the suit schedule property', has not been

delivered, and the Land Acquisition Officer has not taken possession of the

said property. Upon examining Ex.B5, it is evident that the Neelayya's

dispute before the High Court was related to his entitlement a share of

monetary sum and interest in the property, not a claim to ownership of the

property itself. Following orders from W.P.M.P. No.5793 and 9272 of 1980

as per Ex.B3, a true copy of the Judgment, the High Court's order facilitated

permission for delivery. Subsequently, actions were taken by DW.1 towards

property delivery leading to the physical and symbolic possession of an

Ac.1.88½ cents area on June 24, 1980, as documented in Ex.B2 - Delivery

Receipt. Ex.B1 - Delivery Receipt dated June 24, 1980, affirms the

possession of Ac.2.28½ land in S.No.68/3 and 71/3A, backed by the

owners' authorization. Furthermore, Ex.B4 - Delivery Receipt validates the

property's handover on March 9, 1981. Notably, this document indicates the

presence of Palmyra trees, Date trees, and a thatched shed constructed by

Maddi Appala Reddy, along with four other thatched sheds and a Pooja

Mandiram operated by Palikala Neelayya, Appala Reddy, and Gopi. The note

in Ex.B4 emphasizes that possession will be granted once the encroachers

are evicted. Relying on the content of Ex.B4, the plaintiffs argue that the

schedule property has not been delivered. Given these circumstances, it

becomes highly difficult to accept the plaintiffs' assertions that the Land

Acquisition Officer has not taken possession of Ac.3.77 cents of land.

17. Exhibits B1 and B2, in the form of delivery receipts, provide a clear

indication that the entire expanse of land, measuring Ac.3.77 cents, was

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handed over by the original property owners. It's pertinent to emphasize

that the plaintiffs themselves are not the original property owners in

question. Even as per the plaintiffs' case, the property's original ownership

is attributed to Rani Rukminidevi and Rani Kamaladevi, who do not endorse

the plaintiffs' assertion. It's notable that the plaintiffs did not pursue the

submission of any application for the acquisition of a RythwariPatta. The

original property owners themselves acknowledged the delivery of

possession of Ac.3.77 cents of property. This acknowledgment holds binding

finality with respect to the plaintiffs. Consequently, it precludes any room

for dispute on the part of the plaintiffs concerning the delivery of the

schedule property or their attempts to challenge the efficacy of the delivery

process.

18. In a decision reported in Paramount Foods Corporation vs. Delhi

Development Authority2, wherein it is held that:

"10. xxx It is the case of respondents that the owner of the property participated in the acquisition proceedings and claimed compensation for it. The owner is not a party to these proceedings. The owner has not disputed that the property has not vested in the Government or that possession thereof was not taken by the authorities under the Land Acquisition Act. It is not the case of the petitioners that in the amount of compensation for the land or superstructure, they claimed any apportionment or sought reference under Section 18 of the Act for enhancement of compensation.

xxx Use or occupation of the plot by the petitioners thereafter, at the most, may be treated with the implied consent of respondent No.1, but that alone will not be sufficient to say that title of the owner has not vested in the Government or the petitioners is still the tenants over the plot more especially when the owner has not disputed the position. Use of the property by the petitioners after 26/06/1965, if any, cannot have the effect of divesting the title of the Government from the property.

2 1995(0) A.I.R. (Del) 75

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11. Once the possession of the property had been taken, on the strength of section 16 of the Act, the land stood vested in the Government.

xxx The owner has realized his claim of compensation, and in the plot of land, the petitioners have no independent right to remain."

19. Considering the aforementioned circumstances, the trial Court has

come to a correct conclusion that primarily the plaintiffs' contention, there

was no delivery of Ac.3.77 cents, is not accepted. Once it is firmly

established from the available records that the delivery of the acquired

property indeed is established, it logically follows that the plaintiffs claim

to right in the suit schedule property is not tenable. The plaintiffs have yet

to provide an explanation regarding the basis upon which they lay claim to

rights over the plaint schedule property. It's noteworthy that the plaintiffs

have themselves acknowledged the properties ownership by Rani

Rukminidevi and Rani Kamaladevi. In addition, they raised a plea that

they were unable to submit an application for Rythwari Patta. It is evident

from the record that the plaintiffs claimed right, title and possession over

the schedule property. In a decision reported in the State of Punjab and

others vs Sadhu Ram3, wherein the Hon'ble Apex Court observed that:

"3. xxx It is an undisputed fact that consequent upon the passing of the award under Section 11 and possession was taken of the land, by operation of Section 16 of the Act, the right, title and interest of the erstwhile owner stood extinguished and the Government became the absolute owner of the property free from all encumbrances. Thereby, no one has nor claimed any right, title or interest in respect of the acquired land.

3 (1997) 9 SCC 544

T.M.R.,J A.S. No.520 of 2009

It is further held that the Government has become the absolute owner of the property free from all encumbrances unless the title is conferred on any person per a procedure known to the law; no one can claim any title, much less equitable title by remaining in possession."

20. As noted in the previous paragraphs, the documents i.e., Exs.B1 and

B2 distinctly indicate the delivery of property to an extent of Ac.3.77 cents.

Nonetheless, it's worth highlighting that Ex.B4, the Delivery Receipt,

underscores the presence of four thatched sheds and a Pooja Mandiram.

This receipt further asserts to the physical or symbolic handing over of

Ac.3.77 cents to the concerned authority.

21. At this juncture, it is pertinent to place reliance on the Judgment

reported in Balmokan Khatri Educational and Industrial Trust,

Amritsar vs State of Punjab and others4, wherein it was held that:

"4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now a well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession."

22. Adhering to the established legal principles as outlined above, the

delivery receipt (Ex.B.4) effectively highlights the procedural aspects of the

property transfer that follows the eviction of the encroachers. In alignment

with the legal stance expounded earlier, it's appropriate to classify the

plaintiffs as encroachers. The trial Court rightly observed that once the

4 (1996) 4 SCC 212

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proceedings as per the Land Acquisition Act have been completed, the rights

of the landlord's are extinct. Once they are extinct as governed by Section

111 of the Transfer of Property Act, consequently results in the cessation of

tenant rights as well.

23. At this juncture, it is profitable to refer to a decision reported in The

Fruit and Vegetable Merchants Union vs The Delhi Improvement

Trust5, wherein it is held that:

"19. xxx On the other hand, Sections 16 and 17 of the Land Acquisition Act, 1894, provide that the property so acquired, upon the happening of certain events, shall "vest absolutely in the Government free from all encumbrances". In the cases contemplated by Sections 16 and 17, the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word "vest" has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation."

24. Given the absence of legal entitlement on the part of the plaintiffs,

having not obtained ownership documentation, and considering that the

original property owners effectuated the property's delivery, neither the

plaintiffs nor their predecessors in interest possess any valid claim or

interest to challenge the award or the government's action in transferring

property possession to the defendants. As aptly noted by the trial Court, the

plaintiffs effectively stand as unauthorized occupants on the property, and

as such, they hold no basis for seeking an injunction. This is particularly

5 1957 (0) A.I.R. (SC) 344

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relevant when dealing with a property that has been acquired for a public

purpose, benefiting the broader public.

25. Considering that the property owners actively participated in the

acquisition proceedings and did not dispute the property's transfer to the

Government, the plaintiffs are precluded from raising such objections. In

W.P. No.3888 of 1980, as detailed in Ex.B5, the plaintiffs did not contest the

acquisition. Furthermore, the Ex.A.4 proceedings dt.20.12.1985, in

Complaint No.3763/1985 of the Lokayukta indicates that the plaintiffs did

not challenge the delivery of possession, as asserted by the Land Acquisition

Officer. Ex.A.4 mentions compensation payment to the original owner and a

reference to the Civil Court. A clear finding was rendered, and it was

expressly noted in paragraph No.2 that V.U.D.A. assumed possession on

March 9, 1981. The plaintiffs, having not disputed the said fact in their

complaint before the Lokayukta, are precluded from repeatedly revisiting the

matter and arguing that the property was not delivered, especially

considering it's already a resolved issue. It's also pertinent to mention that

Neelayya had filed O.S. No.459 of 1982 seeking a permanent injunction

based on possession, and the I.A. No.953 of 1982, filed for an interim

injunction, was dismissed and the said suit was also dismissed for default.

No evidence has been provided to indicate that the plaintiffs retained

possession of the property after the dismissal of the injunction application

until the initiation of the current suit. The mere dismissal of the earlier suit

due to default does not negate its significance. The plaintiffs' assertion that

the reference ordered by the High Court under Sections 30 and 31 of the

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Land Acquisition Act was not executed is contradicted by Ex.A4 proceedings

issued by the Lokayukta and Ex.X2 - the original reference under Sections

30 and 31(2) and 18 of the Land Acquisition Act. The trial Court aptly

observed that if the reference was not carried out as mandated in the order

Ex.B5 issued in W.P. No.3888 of 1980, it's the plaintiffs' responsibility to

pursue their case questioning the authorities' inaction.

26. In the context of the case circumstances, this Court affirms the

correctness of the trial Court's Judgment. The plaintiffs failed to

substantiate their right and possession over the plaint schedule property.

After evaluating the evidence available with reference to the well-established

legal principles, it becomes evident that the trial Court's conclusions and

observations hold substantial merit. Thus, the plaintiffs are not entitled to

the reliefs as claimed in the suit, i.e., declaration of title and consequential

injunction. The view taken by the trial court does not call for any

interference, and this Appeal, therefore, fails. The impugned Judgment

passed by the trial court is upheld. Accordingly, the points are answered.

27. In the result, the Appeal is hereby dismissed with costs by confirming

the Decree and Judgment in O.S. No.37 of 2004, dated 30.01.2009 passed

by the learned Principal District Judge, Visakhapatnam.

Consequently, miscellaneous petitions pending, if any, shall also

stand closed.

_________________________________ JUSTICE T.MALLIKARJUNA RAO Dt.10.08.2023

MS

T.M.R.,J A.S. No.520 of 2009

THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

APPEAL SUIT NO.520 OF 2009

DATE: 10.08.2023

MS