Andhra Pradesh High Court - Amravati
P.Srinivasulu Reddy. Another. vs M.Raman.13.Others. on 2 August, 2024
1
APHC010118902001
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
FRIDAY, THE SECOND DAY OF AUGUST
TWO THOUSAND AND TWENTY
TWENTY-FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
SECOND APPEAL NO: 419/2001
Between:
P.srinivasulu Reddy.& Another. APPELLANT
AND
M Raman 13 Others RESPONDENT
Counsel for the Appellant:
1. P JAGADISH CHANDRA PRASAD
Counsel for the Respondent:
1. P HARINATH GUPTA
The Court made the following JUDGMENT:
1. The Appellants/Appellants
Appellants/Plaintiffs filed this Second Appeal under
Section 100 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.') against
the Judgment and decree, dated 12.02.2001 passed in A.S.No.92 of 2000 on
the file of III Additional District Judge, Tirupati (for short, 'the 1st Appellate
Court') partly reversing the Judgment and decree, dated 05.09.2000 passed in
O.S.No.30 of 1997 on the file of I Additional Junior Civil Judge, Tirupati (for
short 'the trial Court').
2. The Appellants/Appellant
/Appellants are the Plaintiffs, who filed the suit in
O.S.No.30 of 1997 for permanent injunction restraining the Defendants,
agents, servants, friends, relatives, nominees etc., from in any way changing
the suit channel poramboke land in any manner and for costs of the suit.
Respondents/Respondents are the Defendants in the said suit.
3. It is expedient to refer to the parties as they are initially arrayed in the
suit in O.S.No.30 of 1997 to mitigate any potential confusion and better
comprehend the case.
4. The factual matrix, necessary and germane for adjudicating the
contentious issues between the parties inter se, may be delineated as follows:
The Koramenugunta vanka is a crucial supply channel to the
Upparapalayam tank, flowing through S.No.51 to 54 of Akkarampalli
village, designated as channel poramboke or vagu poramboku.
During the rainy season, it carries water with dimensions of
approximately 50 feet in width and 7 feet in depth. The Plaintiffs
own ryotwari patta lands across several subdivisions, i.e., S.No.48,
49, 135 (subdivisions 1, 10, 16), 137/1, 2, 6, 7, 139/13, 146/14, 15,
and 55/1. Due to the channel's limited capacity, their lands are
inundated when the channel overflows in the rainy season.
Assignment of channel poramboke is prohibited under Board
Standing Orders 15, with no authority granted to the Government or
Revenue Authorities for such assignments. The Defendants have
no legal rights, title, or possession of the channel at any time. On
19.01.1997, Defendants attempted to clear thorny bushes along the
channel, presumably to block it. Plaintiffs intervened and sought a
permanent injunction from the Court to prevent channel closure.
Failure to restrain Defendants could potentially damage the
channel, rendering Plaintiffs' lands unusable due to erosion. The
High Court of Andhra Pradesh, in W.P.No.14362 of 1994, ordered
maintaining the status quo of the channel as it stood on the date of
the writ petition. Therefore, neither the Government nor the
Defendants have the right to assign or occupy the channel.
5. The 1st Defendant filed the written statement, and the other Defendants
adopted the same, asserting that the Plaintiffs copied the cause title from
O.S.No.565 of 1995 before the P.D.M., Tirupati, previously filed against
Pandurangaiah Chetty and others, to obstruct and delay the litigation, thus
preventing the Defendants from enjoying the property granted to them under
pattas. The Defendants further asserted that the Plaintiffs' claim regarding the
channel's necessity for water flow is incorrect, as all tanks have been closed
and converted into house sites. Only a portion of the channel was preserved
for rainwater, while the remaining portion was allocated as house sites for the
weaker sections of the community. The High Court ordered the Defendants in
O.S.No.565 of 1994 to approach the Revenue Divisional Officer, but they did
not. As a result, the Plaintiffs filed this suit on behalf of the Defendants. The
Defendants also highlight that, contrary to the Plaintiffs' claims, some
buildings have been constructed on the channel land and that the Plaintiffs'
patta lands are now used commercially rather than agriculturally. In 1993, the
Defendants obtained house site pattas from the District Collector, who
directed the Mandal Revenue Officer (M.R.O.), Tirupati Urban, to select
suitable land. The M.R.O., with the Mandal Surveyor's assistance, identified
the scheduled property as suitable for house sites and granted pattas after
converting the channel into house sites. Following this, the Defendants
cleared thorny bushes, prompting the Plaintiffs to file the present suit for
permanent injunction while allegedly concealing details of earlier litigation. The
suit is not maintainable without including the State, as it involves Government
land and asserts that the Plaintiffs should have sought a declaration instead of
an injunction.
6. Based on the above pleadings in O.S.No.30 of 1997, the trial Court
framed the following issues:
1) Whether the Plaintiff is entitled to the permanent injunction as
prayed for?
2) To what relief?
7. During the trial, P.Ws.1 to 3 were examined on behalf of the Plaintiff
and marked Exs.A.1 to A.4. Conversely, on behalf of the Defendants, DW.1
was examined and marked Exs.B.1 to B.8.
8. After the trial concluded and both sides presented their arguments, the
learned trial court dismissed the suit in its Judgment dated 05.09.2000.
Aggrieved by the said Judgment and decree in O.S.No.30 of 1997, the
Plaintiffs filed an appeal in A.S.No.92 of 2000 on the file of the 1st Appellate
Court.
9. The 1st Appellate Court, on scrutiny of oral and documentary evidence
adduced on behalf of both sides, had disposed of granting injunction in favour
of the Plaintiffs restraining the Defendants from making any construction in the
30 feet width channel through the S.No.51 to 54 of Akkarampalle village
accounts and also directed the Plaintiffs not to interfere with the constructions
and possession of the Defendants in their assigned lands, without costs by its
Judgment, dt.12.02.2001. Aggrieved by the 1st Appellate Court's Judgment
passed in A.S.No.92 of 2000, the Appellants/Appellants/Plaintiffs preferred the
present Second Appeal.
10. I heard Sri P. Jagadish Chandra Prasad, learned counsel
representing the Appellants/Appellants/Plaintiffs, and Sri P. Harinath Gupta,
learned counsel for the Respondents/Respondents/Defendants.
11. Based on the Appellants' contentions, the following substantial
question of law is involved in this Second Appeal:
Whether the 1st Appellate Court is correct in confirming the
Judgment and Decree of the trial Court partly having observed
that the channel poramboke cannot be assigned and when
once the grant itself is bad in law, the Respondents/Defendants
are not entitled to claim any right at all inasmuch as such
property is non-assignable inasmuch as the assignment of such
property is prohibited by law?
12. With the assistance of the learned counsel for the respective parties, I
have reviewed the Judgments, pleadings, and evidence on record. Before
delving into the matter, since the Appeal is filed under Sec.100 of C.P.C., this
Court must consider the scope of Section 100 of C.P.C.
13. In H.P.Pyarejan V. Dasappa (dead) by L.Rs. and others 1 , the
Hon'ble Supreme Court held that:
Under Section 100 of the Code (as amended in 1976), the
jurisdiction of the High Court to interfere with the judgments of
the courts below is confined to hearing on substantial questions
of law. Interference with the finding of fact by the High Court is
not warranted if it involves re-appreciation of evidence (see
Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC
713) and Kshitish Chandra Purkait v. Santosh Kumar
Purkait (1997) 5 SCC 438)......
14. Considerations in Section 100 of C.P.C., arise only when there is a
substantial question of law, not mere such questions of law or one based on
facts. However, it has to be borne in mind that in case of misapplication of law
and improper appreciation of evidence on record, particularly documentary
evidence, it is the bounden duty of the High Court sitting in Second Appeal to
consider such questions that are substantial in terms of law.
15. In the second Appeal, while exercising jurisdiction under Section 100 of
the C.P.C., this Court must confine itself to the substantial question of law
involved in the Appeal. This Court cannot re-appreciate the evidence and
interfere with the findings of the Courts below, where the Courts below
recorded the findings judicially by appreciating both oral and documentary
evidence. Further, the existence of a substantial question of law is the sine
qua non for the exercise of jurisdiction. This Court cannot substitute its own
opinion unless the findings of the Courts below are manifestly perverse and
contrary to the evidence on record.
16. The record unequivocally shows that the trial court dismissed the suit
seeking a permanent injunction to restrain the Defendants and their
associates from altering the channel poramboke land. On Appeal, the 1 st
2006 (3) ALT 41 (SC)
Appellate Court granted a permanent injunction restraining the Defendants
from constructing within a 30 feet width channel running through Survey
Nos.51 to 54 of Akkarampalli village; similarly, Plaintiff should not interfere
with the constructions and possession of the Defendants in their assigned
lands.
17. It is crucial to note that the Defendants did not seek any relief by filing a
counterclaim seeking direction from the Court restraining the Plaintiffs from
interfering with their construction and possession of the assigned land. Had
the Defendants maintained that the Plaintiffs were encroaching upon their
rights concerning the assigned lands, they could have pursued such relief or
initiated a separate suit against them. At this stage, it is pertinent to refer to
the fact that the trial Court observed in para No.14 of its Judgment that it is not
the Plaintiffs' case that the Defendants are going to encroach on their patta
lands. During the cross-examination, PW.1 admitted that his lands were far
from the suit channel. Without any such interference by the Plaintiffs, the 1 st
Appellate Court should not have issued these directions, as correctly argued
by the Appellants. This Court observes that unless a counterclaim or set-off is
presented, Defendants are not entitled to any affirmative relief against the
Plaintiffs in the main suit or original proceedings. In other words, while the
Plaintiffs may obtain positive relief in the main suit by paying the requisite
court fees, the Defendants are not entitled to any affirmative relief without a
counterclaim or set-off. If successful, the only advantage Defendants may
secure is the denial of relief to the Plaintiffs.
18. After considering the entire material on record, this Court concludes that
the observations made by the 1st Appellate Court, as previously mentioned,
are erroneous. Such directions should not have been given and are therefore
liable to be set aside.
19. The Plaintiffs contend that if they occupy part of the suit channel, their
lands will be inundated. The material on record suggests that the Government
granted pattas to the Defendants on the margin of the suit channel. The trial
Court observed in its Judgment that the Government assigned lands to the
defendants between the suit schedule channel and the plaintiffs' land. The
Plaintiffs contend that as per Board Standing Orders 15 in para 4, the water
course porambokes, namely margins of channels, streams, etc., are
prohibited from assignment. Appreciating the evidence, the trial court
observed no possibility of carrying water in the suit channel except rainwater.
As per the Advocate Commissioner's report, the depth of the channel is 3 to 4
feet and the width of the channel is about 20 feet in some places.
20. The trial Court's Judgment reading shows that it dismissed the suit as
the Plaintiffs failed to implead the Government as a necessary party. The trial
Court ignored that the Plaintiffs filed the suit for permanent injunction. The trial
Court, while referring to Ex.A.2 (certified copy of Technical opinion), Ex.B.5
(cc of report by E.O., Irrigation Department), Ex.B.3 (cc of Inspection report)
and Ex.B.4 (cc of report from M.R.O., to R.D.O., Tirupati), observed that both
parties approached the Revenue Authorities and Executive Authorities and
Irrigation Department and the said Authorities have made a joint inspection
and submitted a report. In the report, it is observed as follows:
S.Nos.53 and 54 of Akkarampalle village in Tirupati Urban Mandal are
located in a supply channel leading to Upparapalem Cheruvu. The
Upparapalem Cheruvu is currently abandoned and has been converted
into Auto Nagar. This supply channel starts at Tirupati Peddacheruvu,
which is abandoned and has been converted into a house site.
Therefore, this supply channel is currently useful only for carrying out
the rainwater from its self-catchment. As per observations made in the
field, the said S.Nos.53 and 54 of Akkarampalle village could be
alienated, provided the beneficiaries fulfil the following conditions before
they are assigned the said lands:
i) The occupants should raise the existing ground level to a minimum
of five feet to construct structures in the proposed sites.
ii) The occupants should construct revetment to the side slopes of the
vanka.
iii) The supply channel should be left at least 30 feet wide to carry out
the rainy water.
iv) No compensation should be claimed in case of any natural
calamities occurring due to rainwater for the house sites.
21. After appreciation of the evidence on record, the 1st Appellate Court
observed that vagu porambokes or the channel porambokes are not in the
same condition as they were previously. The 1 st Appellate Court has taken
note of the evidence of PW.1, who admitted that Upparapalem tank has been
converted as Auto Nagar and Peddacheruvu and part of Kaikala cheruvu have
been converted into house plots. It is borne out from the record that the
Executive Engineer, Irrigation Division and R.D.O., made a joint inspection
and advised that a 30 feet channel should be left for the free water flow. In
view of the above, the 1st Appellate Court observed that if a channel of 30 feet
is left, there will be a free flow of water, and it will not cause any harm to
anyone.
22. The 1st Appellate Court observed that if a 30 feet wide channel is left,
the problem can be solved. Therefore, as shown by the Revenue Authorities,
the Defendants are restrained from making any construction in the 30 feet
channel. As per the Executive Engineer, particularly as shown in Ex.B.7, they
may construct their houses as per the map shown in Ex.B.7.
23. After careful reading of the material on record, this Court views that the
1st Appellate court gave cogent and convincing reasons for granting the relief
of injunction in favour of the Plaintiffs restraining the Defendants from making
the 30-feet-wide channel throughout the surveys Nos.51 to 54 of Akkarampalli
village.
24. This Court discerns no perversity in the Judgment rendered by the
learned 1st Appellate Court. The findings and reasoning provided by the 1st
Appellate Court are consistent with established legal principles. The 1st
Appellate Court meticulously reviewed all evidence on the record, omitting
nothing pertinent, nor did it consider any extraneous material. Consequently,
the Judgment of the learned 1st Appellate Court is upheld. The Appeal lacks
merit in its entirety. However, the direction the 1st Appellate Court issued,
which enjoined the Plaintiffs from interfering with the Defendants' construction
activities and possession of their assigned lands, is unsustainable. This
direction is set aside on the grounds that there is no evidence of interference
by the Plaintiffs with the Defendants' possession of the assigned lands. It
cannot be inferred that the Plaintiffs have the right to interfere with the
Defendants' assigned lands. Consequently, the substantial question of law
raised in this Second Appeal is partly adjudicated in favour of the
Appellants/Plaintiffs and against the Respondents/Defendants.
25. As a result, this Second Appeal is partly allowed. The judgment and
decree dated 13.10.1995 of the learned Subordinate Judge of Gudur in
A.S.No.16 of 1990 are affirmed concerning the injunction granted to the
Plaintiffs, restraining the Defendants from constructing within the 30 feet wide
channel in Survey Nos.51 to 54 of Akkarampalle village. However, the
direction given to the Plaintiffs by the 1 st Appellate Court is set aside.
In this Second Appeal, miscellaneous petitions pending, if any, shall
stand closed.
_____________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 02.08.2024
SAK
THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
SECOND APPEAL NO.419 OF 2001
Date: 02.08.2024
SAK
