G.Babu Rao, vs Grampanchayat, Gaddiannaram,
2022 Latest Caselaw 5040 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                 SECOND APPEAL No.86 of 2014

JUDGMENT :

This appeal is arising out of the judgment dated 23.07.2012

in A.S.No.123 of 2010 on the file of Special Judge for trial of cases

under SC & ST (POA) Act-cum-Additional District and Sessions

Judge, Ranga Reddy, reversing the judgment and decree of the trial

Court dated 12.09.2008, passed in O.S.No.574 of 1991 on the file

of Principal Senior Civil Judge, Ranga Reddy.

2. For the sake of convenience, the parties are referred to as

arrayed before the trial Court.

3. Heard learned Senior Counsel for the appellant as well as the

Standing Counsel for Municipal Corporation, Ranga Reddy and

perused the record.

4. At the outset, it is pertinent to mention that this is the third

round of litigation. The appellant is the plaintiff in the suit. The

original suit was filed by the plaintiff for declaration of title in

respect of suit schedule property. In brief, the case of the plaintiff

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is that he is the absolute owner of the suit schedule property having

succeeded it, from his ancestors and perfected title by way of long

and continuous possession. As per the approved plan and

permission by the Grampanchayat, Lingojiguda, vide proceedings

dated 15.11.1978, the plaintiff has constructed compound wall

around the suit schedule land, for which, the defendant issued a

notice, asking the plaintiff to remove the compound wall. Being

aggrieved by the same, the plaintiff has filed writ petition

No.12567 of 1987 before the High Court of Andhra Pradesh and

the High Court has allowed the writ petition by quashing the notice

issued by the defendant. On 23.10.1990, the plaintiff made an

application for permission along with the plan in the prescribed

proforma as the earlier permission granted by the Gram Panchayat

had lapsed and also paid an amount of Rs.2,943/- towards

permission fees and betterment charges on 03.01.1991. Inspite of

receiving the application, the defendant neither sanctioned

permission nor rejected the same. Further, having waited for four

months, the plaintiff proceeded with the construction as per the

plan, but the defendant issued another notice dated 11.03.1991

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directing the plaintiff to produce evidence, for which, the plaintiff

issued reply notice dated 16.03.1991. Again, the defendant issued

another notice dated 20.03.1991 to remove the constructions, for

which, the plaintiff filed another writ petition No.4599 of 1991 and

later withdrawn it in order to file a comprehensive suit. During the

pendency of the suit, the defendant, along with his staff and Police

authorities, demolished the existing structures and took over the

possession of the property forcibly without following the due

process of law.

5. On the other hand, the defendant filed a detailed written

statement denying all the allegations made in the plaint. The

recitals of the written statement disclose that as per the application

made by the President and Secretary of Bhavani Nagar Association

to the Grampanchayat, Gaddiannaram, which was constituted in

the year 1979, the plot area was included under the

Grampanchayat. It is the contention of the defendant that the suit

schedule land is shown as a public place as per the proceedings

No.GPGA No.58 of 1987 and that the plaintiff has made

unauthorized constructions in the land which is meant for public

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purpose, therefore, the plaintiff was asked to remove the said

constructions within three days, for which, the plaintiff approached

this Court and got quashed the notice dated 18.08.1987. But, this

Court made an observation that option is left to the Grampanchayat

to issue fresh notice after complying the principles of natural

justice. It is also admitted in the written statement that the plaintiff

has made a fresh application for permission and also paid

betterment charges but the Grampanchayat has issued notice dated

07.12.1990, directing the plaintiff to submit layout and original

title deed within eight days, and inspite of it, the plaintiff has not

submitted any documents. Further, the Grampanchayat has

returned the application and plan along with notice dated

12.03.1991, rejecting the permission, but as the plaintiff refused to

receive the application, the defendant issued another notice dated

20.03.1991 to stop construction and for removal of structures.

Accordingly, the defendant prayed for dismissal of the suit.

6. It is pertinent to mention that during the pendency of the

suit, the structures in the suit schedule property were demolished

and possession was taken over by the defendants, as such, the

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plaintiff has amended the relief sought for initially in the plaint by

adding relief for recovery of possession, for which, the defendant

failed to file any additional written statement.

7. Basing on the pleadings, the trial Court has framed the

following issues for trial :

"1. Whether the plaintiff is entitled to be declared as owner of the suit schedule property ?

2. Whether the construction permission applied on 23.10.1990 by the plaintiff is deemed to have been granted in his favour ?

3. Whether the plaintiff is entitled for perpetual injunction ?

4. To what relief ?"

An additional issue was also framed subsequent to the amendment

of plaint :

Whether the plaintiff is entitled for recovery of possession of the suit property from the defendant ?

8. During the course of trial, on behalf of the plaintiff, PW.1

was examined and Exs.A-1 to A-17 were marked. On behalf of the

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defendant, DWs.1 and 2 were examined and Exs.B-1 to B-7 were

marked.

9. After considering the oral and documentary evidence on

record, the trial Court has decreed the suit with a specific finding

that the plaintiff is entitled for a decree as he is the owner and

possessor of the suit schedule property and he is entitled to

construct a house over the suit schedule property under the deemed

sanction permission and further the defendant is restrained from

interfering with the peaceful possession and enjoyment of suit

schedule property by the plaintiff and also with construction of the

house by the plaintiff over the suit schedule property.

10. Being aggrieved by the judgment and decree of the trial

Court, the defendant has filed an appeal before the Special Sessions

Judge-cum-Additional District Judge Ranga Reddy at L.B. Nagar.

11. The first appellate Court, after hearing the rival contentions

of the parties and considering the material on record, has framed

the following points for consideration:

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"1. Whether the plaintiff has proved that he is the owner of the suit schedule land for more than the statutory period ?

2. Whether the lower Court has committed an error in decreeing the suit and thereby the decree and judgment passed by the lower Court are liable to be set aside ?"

12. On considering the contentions and material on record, the

first appellate Court has allowed the appeal by setting aside the

judgment and decree of the trial Court in O.S.No.574 of 1991,

dated 12.09.2008.

13. Being aggrieved by the judgment of the first appellate Court,

this second appeal is filed by the plaintiff raising the following

substantial questions of law along with the grounds of appeal:

1. Whether the findings given by the appellate Court reversing the well considered judgment rendered by the trial Court, are perverse and contrary to the evidence on record ?

2. Whether the findings given by the appellate court with regard to the possession over the suit schedule property by the appellant are contrary to the well settled principle that when a person who is in possession of the property can maintain possession as against any other person in the world except the true owner ?

3. Whether the appellate court, having found that the respondent failed to establish that the suit schedule

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property is earmarked as public place, failed to discharge the burden of proof and having found that the trial Court rightly discarded Exs.B-6 and B-7, is justified in reversing the well considered judgment rendered by the trial Court ?

14. It is contended by the learned Senior Counsel for the

appellant that the suit schedule property comes under

Grampanchayat, Gaddiannaram and initially notice was issued

against the plaintiff, basing on the application of Bhavani Nagar

Association contending that the place was a "public place" and

even in the absence of proper evidence that the suit schedule

property is a "public place", the appellate Court allowed the appeal

by setting aside the decree passed in favour of the plaintiff, which

is bad in the eye of law and prayed to allow the second appeal.

15. On the other hand, the learned Standing Counsel for the

Municipality, Ranga Reddy, contended that the first appellate

Court has considered the entire oral and documentary evidence on

record and reversed the judgment of the trial Court and prayed to

dismiss the second appeal as devoid of merits.

16. The point that arise for consideration in this appeal is ;

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"Whether the first appellate Court has erred in setting aside the judgment and decree of the trial Court ?"

17. As already stated supra, this is the third round of litigation

with respect to the suit schedule property by the same parties.

Initially, the trial Court decreed the suit in favour of the plaintiff

vide judgment dated 24.11.1998. Being aggrieved by the same, the

defendant preferred A.S.No.2 of 1999 on the file of I Additional

District Judge, Ranga Reddy, and the said appeal was allowed

remanding the matter for fresh disposal, after giving opportunity to

both the parties. After adducing further evidence, the trial Court

dismissed the suit. Being aggrieved by the same, the plaintiff

preferred A.S.No.46 of 2002 on the file of Principal District Judge,

Ranga Reddy and the said appeal was dismissed. Being aggrieved

by the same, the plaintiff preferred Second Appeal No.219 of 2004

before this Court and this Court allowed the same by remanding

back the matter to the lower Court with an observation that Exs.B-

6 and B-7 are the photocopies attested by the defendant himself

and they do not contain the signatures of the persons who issued

them originally. After considering the material on record, the

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lower Court has decreed the suit vide its judgment dated

12.09.1998, which is the present round of litigation. Being

aggrieved by the same, the defendant filed an appeal, which was

allowed by the first appellate Court and the present second appeal

is filed by the plaintiff, aggrieved by the said judgment.

18. On perusal of the record, it is evident from the oral evidence

of plaintiff that he became the absolute owner of the property by

virtue of his long and continuous possession over the suit schedule

land. The entire litigation in this case has started with an

application made by the President and Secretary of Bhavani Nagar

Association to the defendant/Grampanchayat, contending that the

plaintiff has made illegal constructions and also constructed a

compound wall in a place which is meant for "public purpose".

The said representation is Ex.B-2. The first appellate Court has

reversed the judgment of the trial Court basing on Exs.B-6 and B-

7. Ex.B-6 is the layout of the suit survey number granted by

Grampanchayat, Nagole. Ex.B-7 is the original extract of base

map. The first appellate Court has considered these documents as

relevant.

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19. It is important to note that the suit schedule property is under

the territorial jurisdiction of Gaddiannaram Municipality but not

under Grampanchayat, Nagole. Inspite of it, it is not known as to

how the first appellate Court has considered Exs.B-6 and B-7 as

relevant documents to the case. Furthermore, there is no other

document filed by the defendant to establish that the suit schedule

property was earmarked as a "public place" and as to how the

defendant has right over the suit schedule property. Though Ex.B-

2 is the representation of President and Secretary of Bhavani Nagar

Association, none of the witnesses spoke about its contents.

20. It is pertinent to mention that as per Section 101 of the

Indian Evidence Act, whoever asserts a particular fact, it is for

them to prove such fact. In this case, it is the defendant who has

pleaded that the suit schedule property was earmarked for "public

purpose", therefore, the burden is on the defendant to establish the

said fact.

21. Ex.A-7, dated 16.11.1994, is the certificate issued by the

Grampanchayat, Gaddiannaram, which clearly disclose that the

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plaintiff has constructed a new house in the Grampanchayat,

Gaddiannaram area and as per Collector (P.W.) order, the General

Revision for the year 1994-1995 was going on and H.No.6-69/1 is

allotted to the above said house in the General Revision. Further,

Ex.A-1, dated 23.10.1990, is the receipt of the application which

was issued by the Grampanchayat office, Gaddiannaram.

22. The documents in Exs.A-1 to A-17 filed by the plaintiff

reveal the correspondence between the plaintiff and the defendant

and also the possession of plaintiff over the suit schedule property.

It is an admitted fact that during the pendency of the suit, the

defendant has high-handedly occupied the suit schedule property,

for which, the plaintiff has amended his relief portion in the plaint

seeking recovery of possession of property. It is the specific case

of the plaintiff that he succeeded to the suit schedule property from

his ancestors and perfected title by way of long and continuous

possession of property. As stated supra, if it is the property of the

Grampanchayat as pleaded by them, the burden is on the defendant

to prove the same. There is no scrap of paper filed before the

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Courts below to show that the property belongs to the

Grampanchayat, Gaddiannaram.

23. Except the oral evidence of DWs.1 and 2, there is no

documentary evidence to show that the suit schedule land is a

"public place". Further, Nagole Grampanchayat cannot issue

permission to Bhavani Nagar Residents' Welfare Association to

use the suit schedule land as park, which is not coming under their

territorial jurisdiction. Assuming for a moment that Gaddiannaram

Grampanchayat was merged with Nagole Grampanchayat, there

should be some document before the Court to believe Exs.B-6 and

B-7 and the oral evidence of DW-2. The defendant has failed to

examine the President or Secretary of Bhavani Nagar Residents'

welfare Association in order to prove that the suit schedule land

was allocated for public purpose and it comes under Nagole

Grampanchayat. Moreover, this Court has observed that Exs.B-6

and B-7 are only the Xerox copies and they don't even contain the

signatures of the persons issuing them. Therefore, the first

appellate Court has erred in relying upon Exs.B-6 and B-7.

Admittedly, Ex.A-1 relates to the year 1990 and in the year 1991,

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the plaintiff has applied for permission as the old permission

granted to him was lapsed.

24. Thus, it can be construed that the plaintiff is in long and

continuous possession of the property as on the date of filing of the

suit, and further, he succeeded to the property from his ancestors

and as such, acquired right over the property by way of adverse

possession and filed suit for declaration of title. As aforesaid,

during the pendency of trial, the plaintiff was dispossessed from

the property and as per the amended relief, the trial Court decreed

that the plaintiff is the absolute owner of the property and he is

entitled for constructing house over the suit schedule property. As

the defendant failed to produce documents to prove that the suit

schedule property is a public place, the first appellate Court has

erred in setting aside the judgment and decree in O.S.No.574 of

1991, dated 12.09.2008. Therefore, the judgment and decree of the

first appellate Court are liable to be set aside.

25. In the result, this second appeal is allowed, setting aside the

judgment and decree in A.S.No.123 of 2010, dated 23.07.2012 on

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the file of Special Judge for trial of cases under SC & ST (POA)

Act-cum-Additional District and Sessions Judge, L.B.Nagar,

Ranga Reddy District. No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 12.10.2022

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