Kannam Rajaiah vs The Singareni Collaries Co Ltd
2022 Latest Caselaw 5214 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                 SECOND APPEAL No.197 of 2013

JUDGMENT :

This Second Appeal is arising out of the judgment and

decree dated 18.07.2012 in A.S.No.137 of 2009 on the file of II

Additional District Judge, Warangal, which is arising out of the

judgment and decree dated 13.07.2009, passed in O.S.No.261 of

2004 on the file of Principal Senior Civil Judge, Warangal.

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

arrayed before the trial Court.

3. The plaintiff is the appellant. The plaintiff has filed the suit

against the respondent i.e., Singareni Collaries Company Limited,

Bhupalpally for removal of accumulated drainage water and

garbage in item No.1 of the suit schedule property and permanent

injunction restraining the defendant from interfering and

constructing drainage canal in item No.2 of plaint schedule

property. It is the case of the plaintiff that one A.Nallaiah was the

owner of an extent Ac.4-04 gts of land in Sy.No.397 and One

Sambaiah and the plaintiff purchased the said land under the

GAC, J S.A.No.197 of 2013

registered sale deed dated 13.05.1988 and since then, they were in

possession and enjoyment of the same.

4. During 1989, the employees of the defendant began to dig

pits in the land of A.Sambaiah, for which the plaintiff had filed a

Writ Petition vide W.P.No.5657 of 1989. On 11.06.1993, they

received notice under Section 9(3) of the Land Acquisition Act,

from the Land Acquisition Officer/RDO, Mulug in respect of the

said land, as defendant intended to take possession of the land in

advance, in anticipation of the award to be passed by the Land

Acquisition Officer. The plaintiff and co-owner have preferred

another Writ Petition vide W.P.No.20718 of 1993 before the High

Court and obtained stay orders of the notification of Land

Acquisition Officer. Further, the plaintiff and his co-owner made

another application to the Sub-Collector with a request, to delete

the said land from land acquisition proceedings and they also

addressed a letter dated 09.021996 and there upon, the defendant

reviewed the changed situation and decided to delete Ac.3-20 gts

of land, out of Ac.4-04 gts of land from the proposals and only

acquired Ac.0-24 gts of land, out of which the plaintiff has got only

GAC, J S.A.No.197 of 2013

Ac.0-12 gts of land. Later, the defendants submitted proposal for

Ac.0-12 gts of land for the purpose of re-requisition for the

formation of road to KTM mines and construction of township.

After formation of roads, the defendant permitted the hawkers of

Bhupalpally to raise their Sheds, Talas and Hotels by collecting

license fee from them for which plaintiff filed O.S.No.73 of 2002

on the file of II Additional Senior Civil Judge, Warangal, claiming

damages.

5. It is the further contention of the plaintiff that defendants

started digging the trenches in the land of the plaintiff for

construction of drainage channel and that drainage water is

accumulated in Item No.1 of the suit schedule property and

defendants are trying to lay drainage channel in item No.2 of plaint

schedule property. Therefore, filed the suit, for perpetual

injunction.

6. On the other hand, the defendants filed a detailed written

statement denying all the averments of the plaintiff and contended

that the defendant company took advance possession of land

including Ac.4-04 gts, in Sy.No.397 on 20.12.1991. The defendant

GAC, J S.A.No.197 of 2013

Company already laid two roads on both sides in Sy.No.397,

covering an extent of Ac.0-12 gts on each of the road and sent their

revised proposal dt.12.05.1996 withdrawing land acquisition

proceedings to an extent of Ac.3-20 gts to the District Collector.

The recitals of the written statement further disclose that the High

Court vide its order dated 08.08.2001 directed Land Acquisition

Officer, Mulugu to proceed with the award and as per the said

order, the defendant Company requested RDO to pass an award to

an extent of Ac.0-24 gts in Sy.No.397 by deleting land to an extent

of Ac.3-20 gts . The road laid by the defendant company leads to

the guest house of land which was acquired from A.Sambaiah.

Further, the defendant Company intended to construct a drainage

canal, in order to clear wastage and rainy water. Further, the

defendant was collecting license fee from owners of Talas and

Dabbas and that the defendant is the absolute owner of the road

and margin where such Dabbas are situated and rents are being

collected, for which the plaintiff has no right to interfere.

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

issues:-

GAC, J S.A.No.197 of 2013

"i. Whether the plaintiff is entitled for mandatory injunction as prayed for?

ii. Whether plaintiff is entitled for injunction as prayed for?

iii. Whether plaintiff is the owner and possessor of suit land covered in item No.1 and 2?

iv. To what relief?"

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

and 2 were examined and Exs.A1 to A3 were marked. Ex.A-4 is

marked in cross-examination of DW.1. On behalf of defendants,

DW.1 was examined and Exs.B-1 to B-3 were marked.

9. Considering the oral and documentary evidence on record,

the trial court has dismissed the suit with a finding that the

defendant can lay drainage pipeline in his land and the plaintiff is

not entitled for mandatory injunction.

10. Being aggrieved by the same, the plaintiff preferred an

Appeal vide A.S.No.137 of 2009, before the II Additional District

Judge, Warangal. On hearing the arguments and considering the

material on record, the 1st appellate Court has framed the following

points for consideration:-

GAC, J S.A.No.197 of 2013

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

2. Whether the plaintiff is entitled for perpetual injunction as prayed for?

3. Whether the plaintiff is owner and possessor of suit land covered by schedule I and II?

4. To what relief?"

11. Considering the entire material on record, the 1st appellate

Court have also dismissed the appeal confirming the judgment and

decree of the trial Court. Being aggrieved by the same, the

unsuccessful plaintiff has preferred Second Appeal with the

following substantial question of law along with grounds:-

"a. Whether the contentions of the requisition department/beneficiary is acceptable with regard to taking of possession directly from the land owners?

b. Whether the requisition Department is authorized under Land Acquisition Act to take advance possession from the land owners? c. Whether the requisition department on its own can dispense with 5(a) enquiry under Land Acquisition Act?

d. Whether the Courts below without looking into the provisions of the Land Acquisition Act can adjudicate the dispute involved in the suit?"

GAC, J S.A.No.197 of 2013

12. Heard the learned counsel for the appellant. Perused the

record.

13. On perusal of the substantial questions of law, it is evident

that they are on the fact findings of the Court below and are not on

the question of law. Further, some of the questions are relating to

land acquisition act, which do not come under the purview of Civil

Court jurisdiction. Moreover, the substantial questions of law

which are raised in this appeal was not part of the pleadings of the

plaint either in the suit or in the grounds of appeal and as such,

there is no opportunity for the Court below to frame an issue on

that particular point, to adjudicate the rights of the parties.

14. Initially, it is the plaintiff who has preferred the suit before

the Civil Court. If at all, if the matter does not come under the

jurisdiction of Civil Court, the plaintiff ought not to have filed a

suit seeking relief against the defendant Company. Therefore, such

a question cannot be raised at this stage and it cannot be treated as

substantial question of law. Furthermore, it is an admitted by the

plaintiff himself with regard to existence of road in the defendant's

land and also about the laying of drainage channel to be made only

GAC, J S.A.No.197 of 2013

within the area of the defendant without entering or encroaching

the plaintiff land or any other property. In view of the admission

of the plaintiff, he cannot seek relief restricting the defendant in

laying drainage pipe in their own land. There is no specific

evidence before the Court that accumulation of water and garbage

is being dumped into the land of the plaintiff. In the absence of

oral and documentary evidence, the trial Court has rightly rejected

to grant either mandatory injunction or perpetual injunction against

defendant.

15. It is pertinent to mention that there is limited scope under

Section 100 of CPC while dealing with the appeals by the High

Courts. In a Second Appeal, if the High Court is satisfied that the

case involves a substantial question of law, only then, this Court

can interfere with the orders of the Courts below. On perusal of

the entire material on record, this Court is of the considered view

that the orders of the Courts below are not perverse and there is no

misreading of evidence, and therefore in the absence of substantial

question of law, it is not proper to interfere with the concurrent fact

GAC, J S.A.No.197 of 2013

findings of the Courts below. Therefore, the Second Appeal

deserves to be dismissed.

16. In the result, the Second Appeal is dismissed at the stage of

admission confirming the judgment dated 18.07.2012 in

A.S.No.137 of 2009 on the file of II Additional District Judge,

Warangal. No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 20.10.2022 dv