Dr. T. Srinivasulu vs The Secretary
2023 Latest Caselaw 266 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                   APPEAL SUIT No.580 of 2006

JUDGMENT:

This appeal is filed against the Judgment and decree of

the trial Court in O.S.No.29 of 2000 dated 05.06.2006.

2. Plaintiff filed suit in O.S.No.29 of 2000 against the

Secretary of the Government of Andhra Pradesh, Revenue

Department and the Divisional Electrical Engineer, A.P.S.E.B

for declaration to declare the plaintiff as absolute owner and

possessor of the suit well which is abutting to Sy.No.266 known

as Panumalla Bhavi situated at Gaddiannaram Village,

Saroornagar and to grant permanent injunction restraining

defendants from causing any sort of interference to the peaceful

possession and enjoyment of the plaintiff with the suit well by

way of installing any electric transformer or in any manner.

3. Plaintiff stated that he is the owner and possessor of the

lands bearing Sy.No.2670/AA, 261, 266 and 268 total

admeasuring Acs.5 - 35 gts situated at Gaddiannaram village of

Saroornagar. There is an agricultural well abutting to Sy.No.266

known as Panumalla Bhavi. The said well is intervened and separated by a Government road which leads to Saroornagar

from Gaddiannaram. The well along with appurtenant open land

consisting of 621 Sq.yds and it is called as suit land for the sake

of convenience. Originally, one Ramulamma mother of the

plaintiff is the owner of the said well as well as the agricultural

lands. She used to irrigate those lands through the waters of the

suit well. Prior to her, her vendor enjoyed the suit well. She

constructed pump room and installed electric pump set to lift

the water and also erected a pipe line leading to agricultural

lands. A.P.S.E.B granted agricultural service connection under

V-4005 in favour of Ramulamma in the year 1960 and she was

continuously paid electric charges under agricultural category.

After her death, plaintiff succeeded the suit well and her lands

as her only son and he is continuously enjoying the possession

of the suit well. Recently, he constructed a theatre in the part of

the agricultural lands and some part of the land is used for

agricultural purpose and paying land revenue to the

Government regularly. The suit well is presently drained up. As

the plaintiff is enjoying possession of the suit well for 42 years,

he has perfected his title over the suit well by adverse

possession.

4. Plaintiff stated that defendant No.2 under the influence of

local political leaders intentionally trying to install an electric

transformer in the open land as shown in the Red colour in the

sketch plan annexed herein. He has no right whatsoever to

cause any sort of interference or install electric transformer in

the above land, which is part and parcel of suit well. The suit

well is previously being used by the plaintiff as "Bavi Gadda"

and he used to keep his buffalos and cattle in the above land as

a cattle shed. When he came to know about the proposed

installation of transformer, he filed an application dated

31.12.1999 before defendant No.2 requesting him not to install

any electric transformer. The defendant No.2 kept quiet for

some days and afterwards again he made his efforts to install

the same. On 21.02.2000, he came to the spot along with his

subordinates and started digging the open place of suit well.

When he questioned defendant No.2, he stated that they got

instructions from the defendant No.1, as such at any cost they

will install electric transformer. Hence, plaintiff filed suit for

declaration and also filed a separate petition to dispense with

the notice under Section 80 C.P.C, as there is urgency in the

matter.

5. In the written statement filed by defendant No.1, he

stated that suit itself is not maintainable in law or on facts and

is liable to be dismissed. He stated that there is no dispute with

regard to the well known as "Panumalla Baavi" abutting in

Sy.No.266 and the same is demarcated as Biladakala number

as per the Revenue Records. He further stated that plaintiff

cultivating the lands long back with the water of the suit well,

no rights will be acquired by the plaintiff to claim the well as it

is in abutting land to his own land. Well is located in the

Biladakala number and at presently it is dried up and no

irrigation is being carried either by the plaintiff or anybody else

in and around the well. Long back ago, all the structures came

up in the plaintiff land, as such the empty well and the

appurtenant land is in the possession of the Government as

Biladakala. As the suit well is a public well, the question of

perfecting the title by the plaintiff does not arise. Moreover, it is

dried up. The plaintiff with an intention to grab the same

intentionally filed a false suit. As the suit well is vested with the

Government, the local residents and political leaders wanted to

erect electric transformer for the welfare of residents to regulate

the supply in and around the locality and also demarcated the

suit land for the purpose of erecting transformer with the help

of second defendant as the land is within Biladakala number of

Gaddiannaram village. The plaintiff has no right over the suit

property. The land where the transformer is likely to be erected

abuts Sy.No.266 which is allegedly owned by the plaintiff. As

such the claim of the plaintiff cannot be entertained. He filed a

rough sketch of the proposed erection of the transformer and

stated that all the said allegations are invented and concocted

by the plaintiff. Even assuming that plaintiff got any title or

claim over the suit property, the Government is at liberty to

carry out all such activities for the common cause of the public

and plaintiff cannot restrain such activities. Therefore,

requested the Court to dismiss the suit. Defendant No.2 filed

the adoption memo adopting the written statement of defendant

No.1.

6. The plaintiff examined himself as P.W.1 and he also

examined P.W.2 on his behalf and marked Exs.A1 to A18.

Defendants examined D.W.1 & D.W.2 on their behalf and

marked Exs.B1 to B3 and Exs.X1 to X8 are marked through the

Commissioner. The trial Court considering the entire evidence

on record, dismissed the suit but the defendants are directed to

give priority to the plaintiff to give the land for the market

value/basic value register, if it is parted to the third parties on

some ground or other as the property has to be given to the

owner of the appurtenant government lands as the owner is

enjoying the said land since long time. Aggrieved by the said

Judgment, plaintiff in the suit preferred an appeal and mainly

contended that the case set out by the defendants is that the

suit land is recorded as "Bila Dakhala", but it does not mean

that it is Government land. The suit well was continuously

utilized by his mother and also by her vendor for over 40 years

and there was no proceeding initiated by the Government to

evict the encroachment or user of the well. Plaintiff was

successful in establishing all the ingredients of perfecting title

by adverse possession, but the trial Court misconceived that

usage of water for irrigation does not constitute adverse

possession. Therefore, requested the Court to set aside the

Judgment and decree of the trial Court.

7. Heard arguments of the appellant, as the respondents did

not turn up in spite of service of summons, it is reserved for

Judgment.

8. Now, it is for this Court to decide whether the Judgment

of the trial Court is on proper appreciation of facts or not, if so

to what extent.

9. The main contention of the plaintiff is that he is the owner

and possessor of the land in Sy.Nos.260/AA, 261, 266, 268

total admeasuring Acs.5 - 35 gts situated at Gaddiannaram

Village, Saroornagar Mandal, R.R.District. There is agricultural

well abetting to Sy.No.266 known as "Panumalla Bhavi" and the

said well along with open land appurtenant to it consisting of

621 Sq.yds. His mother Ramulamma and her vendor were using

the water of well for irrigation of the agricultural land for more

than 40 years. His mother constructed a pump room and

installed an electric pump set to lift the water and also erected

pipe line leading to agricultural lands and the A.P.S.E.B has

allotted service No.V-4005 in favour of his mother in the year

1960 itself and she is paying electricity consumption charges

from then onwards. As such, he perfected title by way of adverse

possession, but the defendant No.2 under the influence of local

political leaders trying to install an electric transformer in the

open land, as such he filed suit for declaration and also filed

petition to dispense with notice under Section 80 C.P.C. He

further stated that the main contention of the respondents is

that under Section 80 C.P.C notice is mandatory and it cannot

be dispensed with. He relied upon the decision of the Hon'ble

Supreme Court in the case of State of A.P and others Vs.

Pioneer Builders, A.P, in which it was held as follows:

"17. From a conjoint reading of sub-sections (1) and (2) of Section 80, the Legislative intent is clear, namely, service of notice under sub-section (1) is imperative except where urgent and immediate relief is to be granted by the Court, in which case a suit against the Government or a public officer may be instituted, but with the leave of the Court. Leave of the court is a condition precedent. Such leave must precede the institution of a suit without serving notice. Even though Section 80(2) does not specify how the leave is to be sought for or given, yet the order granting leave must indicate the ground(s) pleaded and application of mind thereon. A restriction on the exercise of power by the Court has been imposed, namely, the court cannot grant relief, whether interim or otherwise, except after giving the Government or a public officer a reasonable opportunity of showing cause in respect of relief prayed for in the suit.

18. Having regard to the legislative intent noticed above, it needs little emphasis that the power conferred on the court under sub-section (2) is to avoid genuine hardship and is, therefore, coupled with a duty to grant leave to institute a suit without complying with the requirements of sub-section (1) thereof, bearing in mind only the urgency of the relief prayed for and not the merits of the case. More so, when want of notice under sub-section (1) is also made good by providing that even in urgent matters relief under this provision shall not be granted without giving a reasonable opportunity to the Government or a public officer to show cause in respect of the relief prayed for. The provision also mandates that if the court is of the

opinion that no urgent or immediate relief deserves to be granted it should return the plaint for presentation after complying with the requirements contemplated in sub- section (1)."

10. Perusal of the record shows that at the time of filing the

suit plaintiff stated that there was urgency and requested the

Court to dispense with the notice under Section 80 of C.P.C.

Further defendants No.1 & 2 contested the matter and the suit

was disposed of on merits. Therefore, it cannot be said that

notice was not served upon the Government or the public officer

and the suit is in violation of the Section 80 of C.P.C.

11. The defendant No.2 is a statutory body constituted under

Section 5 of the Indian Electricity Act, 1948. The motive of the

electricity board is to provide power to the people at cheaper

rate and uninterruptedly and they have to supply power without

any profit on cost to cost basis, as such there is necessity to lay

overhead lines erecting the poles, transformer and Sub-stations

wherever required. In towns and cities transformers will be

erected on the road margins and they require 4x4 ft area and

this area will be used for the construction of the plinth to avoid

endanger to the public who are moving on the road and board

will take proper precaution from endanger to the public. Before

erecting the transformer the board contacted MRO, Saroornagar

to find out the information about the land. He clearly stated

that in the portion of the said land large plinth can be

constructed by showing the road margin. Therefore, plaintiff

cannot say that defendant No.2 is interfering with his

possession. The Indian Electricity Act clearly provides right of

erection of the transformer on the road margin and plaintiff is

having every right to get compensation from the defendants. As

per the instructions of the MRO, defendant No.2 erected

transformer for the benefit of the general public.

12. The Court Commissioner was examined as P.W.2 and

marked Exs.A1 to A18. M.R.O cum Deputy Collector was

examined as D.W.1 and Assistant Director Survey and Land

Records was examined as D.W.2 and marked Exs.B1 to B3 on

behalf of the defendants. Through Commissioner Exs.X1 to X8

are marked. Ex.X5 is the Commissioner's report. Ex.X6 is the

rough sketch, Ex.X7 is positive photos and negatives are under

Ex.X8. The Commissioner stated that the well which she

inspected was old and there is a room by the side of the well

which is meant for installation of electric motor. The doors and

windows are old and are in dilapidated condition. Existence of

the old well along with room abutting to the said well is

observed by the Commissioner. The pump room is having Zink

sheet roof. Ex.A1 is the extract of Sethwan. Ex.A2 is Pahani

Patrika for the year 1959-60. Under Ex.A2 under Col.No.7

against S.No.266 the source of irrigation is shown as Bhavi i.e,

well. Under all Pahani Patrikas the same recital is available. The

name of Ramulamma is shown as Kathadar under Col.No.11. As

per Ex.A4 one Mohamadi Begum W/o. Mirja Mohad ali Baigh

executed the document in favour of Ramulamma on 18.10.1958

and she sold S.Nos.266 & 268 full, 2.8 gts in S.No.260. There is

no mention in the said document regarding irrigation facilities of

the lands situated in S.Nos.266, 268 and 260, but in the pahani

patrikas filed by the plaintiff which are marked as Ex.A3 under

Col.No.7 the source of irrigation to S.No.266 is shown as well. It

was also observed that neither the mother of the plaintiff nor

the executants of the sale deed under Ex.A3 choose to mention

about the existence of the well and about the rights of the

vendor over the said well. Admittedly, it is not situated within

the Survey numbers of the plaintiff, but it is situated abutting to

S.No.266 of Gaddiannaram Village. The suit well is situated on

the southern side of the well, Nalla is going on the further south

of the suit well in order to discharge surplus water of the

Saroornagar tank. On the further south of Nalla the land

belongs to Hyderabad Municipal Corporation. The lands are

situated on the Northern side of the road and the well is

situated on the southern side. The Court Commissioner stated

that well also dried up and it is in dilapidated condition. Plaintiff

constructed Shivaganga Theater in the said Survey number and

he himself admitted all around those survey numbers buildings

came up. After 1985 all the lands converted into non-

agricultural lands and house plots raised in them. There were

no agricultural operations in S.No.266 and in other Survey

numbers and the well was dried up. The existence of the well is

known as Panumalla Bhavi and the appurtenant land is known

as Bhavi Gadda.

13. D.W.1 and D.W.2 stated that well is situated in Bilaldakla

land, abutting the said well there is Nalla which is meant for

discharging of surplus water from the Saroornagar tank. There

are no encroachments over the said Nalla. As seen from Ex.B1,

well is situated on the adjoining the said Nalla. Under Ex.B2 the

existence of the well is shown under Part No.8. If exclusive

rights are given to the plaintiff over the said well, it will

definitely cause hurdle to the other portion in the same line

which is shown 1 to 7 and 9 numbers under Ex.B2. Admittedly

in Ex.A3 existence of the well or about transferring of the rights

over the said well to Ramulamma were not mentioned. The trial

Court observed that the lands which are irrigated by the waters

of Panumalla Bavi was converted into non-agricultural lands in

the year 1983 itself and the well dried up and is in dilapidated

condition. It was not used for any purpose for more than a

decade prior to filing of the suit. Therefore, argument of the

plaintiff that he acquired rights over the suit well by way of

adverse possession cannot be accepted. When the residents of

the locality and the political leaders requested the electricity

department for installation of transformer for supply of

uninterrupted and quality power in that locality, authorities of

defendant No.2 approached the MRO, Saroornagar to show

them some land for the purpose of construction of plinth for

installation of transformer. M.R.O, Saroornagar under the

instructions of District Collector, R.R.District requested the

Electricity Department to construct flatform for installation of

the transformer by the side of the dilapidated well which is

situated in Biladakala land in the Revenue Records.

14. In the cross-examination of P.W.1, it was admitted that

A.P.TRANSCO constructed a transformer in the suit open site

for the purpose of installation of electricity transformer and

electricity pole is also installed near the said flatform.

A.P.TRANSCO intending to install a transformer for the public

utility to provide quality supply of power to the nearby people

and P.W.1 is also benefited with that. Defendants further stated

that defendant No.2 is having power under Indian Electricity

Act, 1938 to install electric poles, transformers and sub-stations

wherever it is necessitated as they are supplying power to the

public on no profit or no loss basis for general utility. If the land

belongs to the plaintiff, plaintiff is at liberty to claim

compensation but he has no right to seek the relief of

permanent injunction. It was also observed that merely because

the mother of plaintiff was using the water of the well in exercise

of their easementary right over the well to irrigate their lands.

As the lands were converted into non-agricultural lands and

when there is no water in the well, the question of exercising

easementary rights does not arise. D.W.1 stated that well

situated in 255 Sq.yds, pump room is situated to an extent of

100 Sq.yds and the entire land is around 600 Sq.yrds. The

learned Counsel for the plaintiff relied upon the

G.O.Ms.No.1601/05 dated 29.08.2005 and also other revenue

laws and defendants have to give priority to the plaintiff for

parting land in favour of the Government. Admittedly, land is

not situated in survey numbers of the plaintiff, but it abutting

to Sy.No.266. In the sale deed executed in favour of the mother

of the plaintiff it was not specifically mentioned that the suit

well is part and parcel of the survey numbers for which plaintiff

is the owner and possessor of the same. The main contention of

the plaintiff is that his mother and her vendor were using the

water of the well for irrigation purpose for more than 42 years

and it clearly amounts to easementary rights and it will not

confer any title to the plaintiff. Moreover, when he filed suit for

declaration, there was no water in the well and it is in

dilapidated condition and even agricultural lands converted into

non-agricultural lands, P.W.1 also constructed theatre in

certain portion of his land, as such the well was not used for

irrigation purpose. Defendants intend to install transformer in

the said place for the public purpose, therefore the trial Court

considering all the aspects rightly held that plaintiff is not

entitled for declaration and dismissed the suit. The trial Court

also held that as the plaintiff was using the suit well since long

time, defendants are directed to give priority to him to give land

for the market value or basic value register as he is parting with

the land with the third parties, this Court finds no infirmity in

the Judgment of the trial Court and it needs no interference.

In the result, appeal is dismissed confirming the

Judgment of the trial Court in O.S.No.29 of 2000 dated

05.06.2006.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________

JUSTICE P.SREE SUDHA

DATED: 20.01.2023

tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

APPEAL SUIT No.580 of 2006

DATED: 20.01.2023

TRI