Andhra Pradesh High Court - Amravati
Vadlamuri Lakshmi vs The Grampanchayat, on 6 October, 2023
THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
APPEAL SUIT NO.594 OF 2009
JUDGMENT:
1. The Appeal, under Section 96 of the Code of the Civil Procedure, 1908 (for short, 'C.P.C.'), is filed by the appellants/plaintiffs challenging the decree and Judgment, dated 11.08.2009 in O.S.No.47 of 2005 passed by the learned District Judge, East Godavari, Rajahmundry, (for short, 'trial court').
2. The appellants are the plaintiffs, who filed the suit in O.S.No.47 of 2005 seeking a declaration of their right to have access to the road situated in R.S.No.524/1 through the red-marked area from every inch of the width of their site on its east and south situated in Chinakondepudi village and also for consequential injunction and costs.
3. The parties will hereinafter be referred to as arrayed before the trial Court.
4. The facts leading to the present Appeal, in a nutshell, are as under:
(a) The 1st plaintiff is the 2nd plaintiff's sister-in-law. The 1st plaintiff's husband, i.e., the 2nd plaintiff's elder brother, P. Dhananjaya Raju, died on 04.03.2000. The plaint 'A' schedule property belonged to the 1st plaintiff's husband under sale deed, dt.05.01.1997, and the plaint 'B' schedule property is in the name of 1st plaintiff by sale deed 2 TMR, J A.S. No.594 of 2009 dt.02.09.2002 and the remaining vacant site situated in Sy.No.524/1 belongs to the plaintiffs' family members. Further, the 1 st plaintiff, with the help of the 2nd plaintiff, started the Fly Ash Bricks Manufacturing unit in the plaint 'A' schedule property under the name and style of Dhananjaya Venkata Krishna Bricks, Chinakondepudi village in the 1st week of March 2005, after complying with necessary formalities by engaging 12 workers. There is a public road leading from Sithanagaram to Purushothapatnam village on its south with road margin (road margin shown as red colour in the plaint plan) in Sy.No.524/1 of Sithanagaram village classified as "Road Poramboke" in the Government records. Therefore, the plaintiffs have the right of access from their site to the public road and have been enjoying the same with absolute rights. Further, there were conflicts related to a public road access due to election disputes involving the 2nd plaintiff and other persons, namely K.S.N.Raju, V.V.Raju, V.K.V Prasadaraju, T.Somaraju, P.S.Varma in the village of Chinakondepudi. Due to that, the persons mentioned earlier influenced the defendant panchayat to obstruct the plaintiffs' access to the road. Further, they also placed hurdles by raising a fence around the red-marked site, which would prevent the plaintiffs from using the road margin to go to the public road.
Therefore, the plaintiffs lodged a report before the Sithanagaram police on 18.04.2005 to take necessary action.
(b) In addition, the plaintiffs initiated legal action by filing O.S.No.408 of 2005 in the court of I Additional Junior Civil Judge, 3 TMR, J A.S. No.594 of 2009 Rajahmundry, seeking a permanent injunction against the aforementioned individuals and asserting their right to access the public road from their properties. They obtained interim injunction (I.A.No.410 of 2005) against these individuals in that suit. An advocate commissioner was appointed, and he reported obstructions including bamboo sticks and coconut leaves placed to block vehicle passage to the plaintiffs' property from the southern side. To avoid legal consequences, the defendants colluded with the President of Chinakondepudi Gram Panchayat. They filed a caveat in the District Court and sent a false notice to the plaintiffs on 07.05.2005, claiming a road margin extent of Ac.0.45 cents. The plaintiffs responded with a registered legal notice dated 29.04.2005 and a telegraphic notice on 06.05.2005, disputing the defendant's case .
5. In the written statement, the defendant denied the plaintiff's claims and asserted that their property is separated from the road by the defendant's poramboke land. The defendant asserted that the plaintiffs lack the right to access the public road from their property. Additionally, the defendant contended that the defendant's poramboke site, once used as public latrines, had structures removed, leaving only foundation walls visible; the plaintiffs are attempting to encroach upon the defendant's property through false allegations and frivolous claims. Furthermore, the defendant contended that the plaintiffs did not issue a notice under section 138-A of A.P. Gram Panchayat Act before filing the suit, rendering the suit non-maintainable and liable for dismissal. 4
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6. Based on the above pleadings, the trial Court framed the following issues:
(1) Whether there is proper and legal notice under section 138-A of the A.P.Gram Panchayat Act?
(2) Whether the plaint plan is correct?
(3) Whether the plaint schedules are correct? (4) Whether the plaintiffs' site is abutting a public road? (5) Whether there is a defendant's site in between the plaintiffs' property and public road?
(6) Whether the plaintiffs are entitled to the reliefs of declaration and consequential injunction as prayed for? (7) To what relief?
7. The trial Court also framed the following additional issues:
(a) Whether the 2nd plaintiff is not a proper and necessary party to the suit and hence has no right to sue against the defendant?
(b) Whether the children of the 1stplaintiff are proper and necessary parties to the suit, and for not adding them, the suit is bad?
8. During the trial, on behalf of the plaintiff, P.Ws.1 to 4 were examined and marked Exs.A.1 to A.18. On behalf of the defendant, D.Ws.1 and 2 were examined, and Exs.B.1 to B.21 documents were marked.
9. After the completion of the trial and hearing the arguments of both sides, the trial Court dismissed the suit with costs.
10. Sri Y.Sudhakar, learned counsel for the appellants/plaintiffs, put forth an argument that there exists a road margin in Sy.No.524/1 on both sides of the blacktop road, abutting the plaintiffs' property. This road margin serves as the only access point for the plaintiffs to the 5 TMR, J A.S. No.594 of 2009 blacktop road in the south and has been used by the plaintiffs' vendors to reach the public highway. The counsel emphasized that as owners of land adjacent to a highway, the plaintiffs have the inherent right of access to the road from any part of their property. The defendant's obstruction of this right warranted the reliefs sought in the suit. Additionally, it was pointed out that prior election disputes involving the 2nd plaintiff and individuals like K.S.N.Raju led to the defendant's influence, resulting in the erection of a fence around the red-marked site. This obstruction prevented the plaintiffs from using it as a means to access the Z.P road. The counsel argued that the trial Court failed to properly assess the oral and documentary evidence, particularly in light of the absence of testimony from the President of the Gram Panchayat or its secretary, who are pivotal to the subject matter of the case.
11. Per contra, Sri N.Sri Hari, learned standing counsel for Z.P.P M.P.P and Gram Panchayat for the respondent, contends that the trial Court correctly appreciated the case facts and reached a correct conclusion. The reasons given by the trial Court do not require any interference.
12. Having regard to the pleadings in the suit, the findings recorded by the Trial Court and in light of the rival contentions and submissions made on either side before this Court, the following points would arise for determination:
1) Whether the plaintiffs entitled to access the road in RS.No.524/1 through the red-marked area from every 6 TMR, J A.S. No.594 of 2009 inch of the width of their site on its east and south situated in Chinakondepudi village?
2) Whether the Judgment passed by the trial Court needs any interference?
POINT NOs.1 & 2:
13. The 1st plaintiff is the sister-in-law of the 2nd plaintiff; the 1st plaintiff's husband, i.e., the 2nd plaintiff's elder brother, P.Dhananjaya Raju, died on 04.03.2000. It is the plaintiffs' case that the plaintiffs and their family have owned a vacant site in R.S.No.524/1 of Chinakondepudi village; A-schedule property belonged to the 1 st plaintiff's husband; B-schedule property stands in the name of 1st plaintiff, and the remaining vacant site is in the name of plaintiffs' family members. To establish the same, the plaintiffs relied on various sale deeds. Ex.A.1-registration extract of the sale deed dated 05.01.1997 shows that B-schedule property stands in the name of 1stplaintiff. The plaintiffs' case is that after the demise of P.Dhananjaya Raju, the 1st plaintiff has been in peaceful possession and enjoyment of the A-schedule property. To show that schedule vacant site stands in the name of the 1st plaintiff, the plaintiffs relied on Ex.A.2-registration extract of the sale deed dated 02.09.2002. Also, they relied on Exs.A.3 to A.5 sale deeds to show that the property covered under those documents belong to their family members. The plaintiffs' case, as deposed by PW.1 (Vadlamuri Ramakrishnan Raju), the 2nd plaintiff, is not seriously disputed.
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14. It is the plaintiffs' stand that the 1st plaintiff, with the help of the 2nd plaintiff, started the Fly Ash Bricks manufacturing unit in the A- schedule property under the name and style of 'Dhanjaya Venkata Krishna Bricks' at Chinakondepudi village; the plaintiffs 1 and 2 obtained provisional registration as a small scale industry from Department of Industries, Government of Andhra Pradesh; they also paid factory licence fee to the Gram Panchayat, Chinakondepudi village for the year 2005-2006 being the fee payable for cement bricks making. In support of the said case, the plaintiffs relied on Ex.A.6-certified copy of provisional registration as a small-scale industry issued by the Industrial Promotion Officer, Rajahmundry, in favour of the 2nd plaintiff; Ex.A.7-certified copy of the receipt issued by the Gram Panchayat, Chinakondepudi for licence fee. The said plaintiff's case is not in dispute.
15. It is also the plaintiffs' case that previously, they filed an injunction suit in O.S.No.408 of 2005 on the file of learned I Additional Junior Civil Judge, Rajahmundry and filed I.A.No.410 of 2005 seeking an ad-interim injunction restraining K.S.N.Raju, V.V.Raju, V.K.V.Prasadaraju, T.Somaraju, P.S.Varma and their men in interfering with the peaceful possession and enjoyment of the schedule property and from interfering with the right of the access to the public road from the property situated in Sy.No.524/1 of Chinakondepudi village. To establish the said fact, the plaintiffs relied on Ex.A.9-copy of the plaint in O.S.No.408 of 2005; Ex.A.10-certified copy of the petition in 8 TMR, J A.S. No.594 of 2009 I.A.No.410 of 2005 in O.S.No.408 of 2005 shows that an Advocate Commissioner was appointed to note down the existing physical features; Ex.A.11-certified copy of Commissioner's report in O.S.No.408 of 2005 as well as the PW.1's evidence show that the learned Advocate Commissioner visited the schedule property on 05.05.2005 and observed the functioning of bricks manufacturing unit and also he noticed the planting of some bamboo sticks with coconut leaves and the said structures are obstructing the passage of vehicles into the schedule property; Ex.A.12 photographs with corresponding negatives also establish the obstruction of passage of vehicles into the schedule property.
16. The plaintiffs relied on Ex.A.13-Caveat petition filed by Gram Panchayat, wherein it is alleged that the schedule property is in their occupation; Ex.A.14 office copy of the notice dated 29.04.2005 and Ex.A.5 office copy of the telegram notice dated 07.05.2005 to establish their stand before the filing of the suit.
17. The evidence of DW.1 (Padam Ramprasada Rao), Gram Panchayat Secretary, shows that there is a Gram panchayat poramboke site situated between A-schedule property and Z.P.road; it was previously used as public lavatories; they were removed upto foundation level. In support of their stand, the defendant relied on Exs.B.1, B.2 and B.18 (bunch of photographs and negatives with regard to suit property); Ex.B.3-xerox copy of minutes of the defendant Gram Panchayat; 9
TMR, J A.S. No.594 of 2009 Ex.B.4-xerox copy of emergency meeting of defendant Gram Panchayat; Ex.B.5-xerox copy of the minutes of the Gram Panchayat; Ex.B.11-letter addressed by the Sarpanch, Gram Panchayat, Chinakondepudi to the Secretary of the Grama Panchayat; Ex.B.12-letter addressed by the Secretary, Gram Panchayat, Chinakondepudi to the Sarpanch of the Gram Panchayat; Ex.B.13-Adangal of Chinakondepudi village; Ex.B.14- letter addressed by the Secretary, Gram Panchayat, Chinakondepudi to the Government Pleader, Rajahmundry; Ex.B.15-letter addressed by the Government Pleader, Rajahmundry to the Secretary, Gram Panchayat, Chinakondepudi; Ex.B.16-office copy of the registered notice issued by the Secretary, Gram Panchayat, Chinakondepudi to the plaintiffs' counsel; Ex.B.17-corresponding postal acknowledgment; Ex.B.19- proceedings of the Schedule caste corporation to the Secretary, Chinakondepudi; Ex.B.20-receipt issued by Rasmi Colour Photo studio and Ex.B.21-certified copy of chief affidavit of PW.1 in O.S.No.408 of 2005. The said documents relied on by the defendant show various steps taken by Gram Panchayat to pursue the litigation in the Courts with reference to the suits filed by the plaintiffs.
18. The plaintiffs undisputedly own the property as documented in various sale deeds for the mentioned schedule property. According to Ex.B.1 photograph, there is a Raja Veedhi to the east of the schedule properties. This photograph also indicates a small portion of road margin between the fence and the southern side of the road. The defendant, in their written statement, claims that their poramboke 10 TMR, J A.S. No.594 of 2009 property is located between the plaintiffs' property and the road. The disagreement between the parties centers on the plaintiffs' access to the public road from their property in Sy.No.524/1. The plaintiffs assert that the defendant is obstructing this access, emphasizing the presence of a public road leading from Sithanagaram to Purushottapatnam village on its south, with a road margin in Sy.N.524/1 classified as "road poramboke" in the Government records.
19. According to PW.1's evidence, the plaintiffs got the right of access from their site to the public road, and they have been enjoying the same without hindrance. The material on record indicates that the defendant Gram Panchayat, obstructed this access by placing bamboo sticks with coconut leaves, blocking the passage of vehicles to the schedule property from the southern side. The trial Court also took note of PW.1's evidence mentioning that a fence was erected on the eastern side of the plaint schedule property, and partially on the southern side, enclosing the property on all four sides.
20. It is acknowledged that according to Ex.A.1 sale deed, the southern boundary of the site is designated as poramboke property. The defendant's argument, backed by Ex.B.18, suggests the presence of lavatories in the past, which were removed up to ground level. The defendant's stance implies that since lavatories existed earlier, the plaintiffs cannot claim easement rights through the poramboke site, which once housed public facilities. However, it is crucial to note that 11 TMR, J A.S. No.594 of 2009 these lavatories no longer exist. The trial Court's interpretation seems to miss the core of the dispute. The plaintiffs do not contend that the defendant occupied their land, constructed lavatories, or caused obstruction. Instead, the plaintiffs assert that on the southern side of their property, there exists a poramboke site, which is essentially a road margin. Through this road margin, they accessed the road situated to the south. This fact is supported by DW.1's admission that the plaint schedule property borders the Z.P road leading from Sithanagaram to Purushottapatnam. DW.2 (V.Koti Vara Prasada Raju) also affirmed that the disputed property belongs to the Gram Panchayat, and to the south of the plaintiffs' property, there is a road leading from Sithanagaram.
21. Admittedly, even according to the defendant's case, in between the plaintiffs' property and road on southern side, the defendant's poramboke property is situated. The counsel for the respondent contends that the poramboke property vest in Gram Panchayat, the Gram panchayat shall have power to regulate the use of poramboke property.
22. In Koganti Venkata Suryanarayana V. State of A.P. represented by its Prl. Secretary, Municipal Administration and Urban Development Department, Secretariat, Velagapudi1, the composite High Court of Andhra Pradesh had an occasion to examine the rights of individuals having properties abutting the public road with reference to the case law as under:
1
2018 (2) ALT 459 12 TMR, J A.S. No.594 of 2009 Public streets and roads are vested in the State/local body, and the State/local body holds them as a trustee on behalf of the public. (Dr. Nitin G. Khot v. State Commandant, Belgaum A.I.R. 1998 Karnataka 300; Sujay Advertising v Union of India 1979(2) KantLJ 357. As public streets vest in the State/local body, every member of the public has a right to use the same subject to the rights of others and the law regulating traffic, etc. (Dr. Nitin G. Khot A.I.R. 1998 Karnataka 300; Saghir Ahmad v State of Uttar Pradesh A.I.R. 1954 Supreme Court 728). There is a duty cast upon the State/local bodies to maintain roads in a proper condition. Whenever it is brought to their notice that there are encroachments on public roads and streets, it is their duty to act and take steps to remove them. (D. Mallikarjuna Rao v. Member Secretary AIR 2001 Madras 324; Natarajan O.N. v. The Municipal Council, Turaiyur 1994 (1) (Mad) LW 470; Janarthanam, KVK v. State of Tamil Nadu AIR 1995 Madras 179; The Commissioner, Panruti Municipality, Panruti v. Sri Kannika Parameswari Amman Temple1996 (2) Mad LW 35; Damodara Naidu v. Thirupurasundari Ammal 1972 (2) Madras LJ 4; and Govinda Asari v. The Kancheepuram Municipality, rep. its Commissioner 1981 (2) Mad LJ 336). If any obstruction is caused over the roads/road margin, the person entitled to have such access can enforce that right. (K.V.K. Janardhanam KVK, AIR 1995 Madras 179; Bharathamatha Desiya Sangam Madha-varam v. Roja Sundaram AIR 1987 Madras 183) Public roads are public property, and these roads are constructed for a public purpose. It is only for the welfare and betterment of the public that all such developmental activities are undertaken. People should be allowed to enjoy the benefits of such development. Public roads can be used only for the travelling needs of the public. It cannot be converted for other collateral purposes. (P.N. Srinivasan v. The State of 13 TMR, J A.S. No.594 of 2009 Tamil Nadu 2014 (1) CTC 561). If, in respect of any street, the public has a right of way, it is a public street. The public way, public road, or public street is a way over which there exists a public right of passage. (Mishrimal Jethmal Oswal v. Municipal Council of Lonavala2006 S.C.C. Pm:ome Np, 796). The vesting of the public street in a local body is only for the purpose of maintaining it properly as a public street. (Govinda Asari 1981 (2) Mad LJ 336). Vesting of the public street does not confer any power even on the local body to treat it as its private property, nor does it imply a power to obstruct the use of the public street. (Govinda Asari).
23. Admittedly, the plaintiffs are not claiming any right over the poramboke property except the right of access to the road situated on the southern side. It is not the defendant's case that the plaintiffs occupied some portion of the poramboke property. If so, the defendant can take action against the plaintiffs and recover the poramboke property, which is said to be occupied. The main dispute is as to whether the defendant Gram Panchayat is supposed to prevent access to the southern road from the plaintiffs' property on the ground that the property, which is situated in between the plaintiffs' property and the road, is poramboke property.
24. Simply because, previously, some public lavatories were in existence in the said poramboke site, and they were removed, it cannot be contended that the plaintiffs have no right to claim access to the road and that the defendant can cause obstruction to the passage right of the plaintiffs. At this juncture, it is profitable to refer to the decision 14 TMR, J A.S. No.594 of 2009 in the case of Yelugula Subba Rao V. Perumalla Sri Ramakrishna Murthy and others2, the composite High Court of Andhra Pradesh observed as follows:
11. ...............Once it had emerged that the 1st respondent is the owner of the property covered by Exs.A.1 and A.2, the appellant cannot be permitted to obstruct his access to any portion of such property. It may be true that the appellant would be subjected to some hardship if the structure in question is removed. In his written statement, the 3rd respondent stated that the said structure is causing obstruction for the people. The 1st respondent stated that his privacy is severely affected and access to the road is hampered. Under these circumstances, this Court does not find any basis to interfere with the Judgment and decree of the lower Appellate Court.
12. To mitigate the hardship of the appellant, he is granted time up to 31st October 2005 to remove the structure. It shall be open to him to approach the authorities of the Gram Panchayat and R&B to allot an appropriate site in such a way as not to cause any obstruction, and if such a site is available, the concerned authorities shall consider the application of the appellant and take necessary steps.
However, the appellant shall not be allowed to stay beyond 31-10-2005 in the structure in question on the ground that the alternative site was not allotted.
25. By following the observations made in the aforesaid Judgments, this Court views that the respondent's contentions cannot be considered with regard to the existence of public toilets previously in the road margin. If it is the case that such toilets would obstruct the access to the 2 2005 (5) ALD 101 15 TMR, J A.S. No.594 of 2009 road, such structures shall be removed. This Court is of the opinion that no individual has any right to make constructions in the road margin and thereby obstruct the ingress and egress of the persons owing properties abutting the road as observed in the Judgment of the Court in Satyaboina Someswara Rao Vs. Sangasetty Tirupathamma3. This Court is of the view that the right of the public to pass and repass extends over every inch of the street, and the defendants cannot in any manner restrict the right and compel the plaintiffs to confine themselves to a part of the street of the choice of the defendants.
26. The evidence on record clearly establishes that there is a public road leading from Sithanagaram to Purushottapatnam Village on its southern road (margin shown as red colour) in the Sy.No.524/1 of Sithanagaram village is classified as road poramboke.
27. After careful appreciation of the record, this Court is of the view that the evidence adduced on behalf of both sides clearly shows that the defendant caused obstruction to the passage right of the plaintiffs to proceed to the road situated on the Southern side from their property through the panchayat poramboke site.
28. As already observed, the plaintiffs have the right to go upon the road from their land, and that right is obstructed by the defendant. The plaintiffs, being owners of the property abutting the road, are entitled to 3 1989 (1) A.L.T. 36 16 TMR, J A.S. No.594 of 2009 maintain suit for declaration of title and for consequential relief of injunction.
29. For the reasons stated above and regarding the case facts, this Court views that the plaintiffs have established their case. The findings and conclusions recorded by the trial court are based on something other than a proper appreciation of the evidence on record. Non- consideration of the evidence adduced on behalf of the plaintiffs vitiated the trial Court's findings. The trial court's Judgment is erroneous, cannot be sustained, and is liable to be set aside. Given the preceding discussion, the Appeal has to be allowed. Accordingly, the points are answered.
30. As a result,
(a) The Appeal is allowed without costs;
(b) The Judgment and Decree passed by the Trial Court in O.S.47 of 2005, dated 11.08.2009, passed by the learned District Judge, East Godavari, Rajahmundry, is set aside.
(c) The suit in O.S. No.47 of 2005 is decreed with costs as prayed for.
Miscellaneous petitions pending, if any, in this Appeal, shall stand closed.
_________________________________ JUSTICE T. MALLIKARJUNA RAO Date: 06.10.2023 SAK 17 TMR, J A.S. No.594 of 2009 THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO APPEAL SUIT NO. 594 OF 2009 Date: 06.10.2023 SAK