Andhra HC (Pre-Telangana)
Medikonda Sambasiva Rao And Another vs The Panchayat Secretary, ... on 28 February, 2014
Author: L.Narasimha Reddy
Bench: L.Narasimha Reddy
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY
SECOND APPEAL No.440 of 2012
28-02-2014
MEDIKONDA SAMBASIVA RAO AND ANOTHER...APPELLANTS
THE PANCHAYAT SECRETARY, GRAMPANCHAYAT, BHATTIPROLU VILLAGE AND MANDAL,
REPALLE, GUNTUR DISTRCIT
!COUNSEL FOR THE APELLANTS; Sri.P.Phalguna Rao
Counsel
COUNSEL FOR THE RESPONDENT :Sri P.V.A.Padmanabham
<Gist:
>Head Note:
?Citations
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
SECOND APPEAL No.440 of 2012
28-02-2014
JUDGMENT:
The unsuccessful plaintiffs in O.S.No.426 of 2006 on the file of the Principal Junior Civil Judge, Repalle, filed this Second Appeal. The suit was filed for relief of perpetual injunction, against the sole defendant i.e., the respondent herein, in respect of items 1 and 2 of the suit schedule property, comprising of two plots.
The case of the appellants was that their father, by name, Nagaiah, was assigned the 2nd item a plot of Ac 0.02 cents by the Government on 05.07.1967, and the adjoining house site i.e., 1st item of Ac 0.02 cents was assigned in favour of their mother (Victoria) by the Mandal Revenue Officer, Bhattiprolu, through its order, dated 14.08.1986. Their parents i.e., Nagaiah and Victoria are said to have died in the years 1976 and 2002, respectively, and that the suit schedule property of Ac 0.04 cents, devolved upon the appellants. The grievance of the appellants was that, on 14.10.2006, the respondent, along with his employees visited the schedule property at the instance of the neighbours, and interested persons, and took measurement of the 1st item. They pleaded that the respondent has no right over the property, and accordingly, prayed for relief of perpetual injunction.
The respondent filed detailed written statement. According to him, the mother of the appellants was not assigned any plot at all, and that the deed of assignment, dated 14.08.1986, was a fabricated one. He further stated that the plot of Ac 0.02 cents was originally held by one Karra Mariyamma, and she sold away the same to one Tunuguntla China Kotaiah under a sale deed dated 14.06.1971 and the said China Kotaiah, constructed a shed with brick wall, and made it a reading room for the benefit of people of that locality. After the death of China Kotaiah, his legal representatives are said to have conveyed the property in favour of Bhattiprolu Rallpet Harijan Sangam. On representation made by the Sangam, several facilities are said to have been provided to the reading room, such as installation of a Radio by the Grama Panchayat, and that the appellants have no right, whatever over the property.
He further stated that on an earlier occasion, two persons, viz., Jangam Ella and Jangam Samson sought to obstruct the Sangam, from using the property, and in that context, the Sangam filed O.S.No.239 of 1985 in the Court of Principal Munsif Magistrate, Repalle, for the relief of perpetual injunction. The relief was said to have been granted in favour of Sangam.
Through its judgment, dated 26.03.2009, the trial Court dismissed O.S.No.426 of 2006. Thereupon, the appellants filed A.S.No.6 of 2009, in the Court of the Senior Civil Judge, Repalle. The lower appellate Court dismissed the appeal, through its judgment, dated 28.08.2010. Hence, this Second Appeal. Sri P. Phalguna Rao, learned counsel for the appellants submits that though the suit is filed for the relief of perpetual injunction, the trial Court and the lower appellate Court, have dealt with the question of title extensively, and denied the relief. He submits that the appellants are in possession of the suit schedule property, for the past several decades by themselves, and through their parents, and there is nothing on record to disclose that the respondent is in possession of the property.
Sri P.A.V. Padmanabham, learned counsel for the respondent, on the other hand, submits that the suit is not maintainable, either on facts, or in law. He submits that the Secretary has no independent existence, and it is only when the Gram Panchayat, is made a party to the suit, that the Secretary can represent that statutory body. He further submits that the appellants failed to prove the plea that item 1 of the suit schedule was assigned in favour of their mother. Learned counsel further submits that admittedly, a reading room was functioning in the property, and in fact, a suit was filed way back in the year, 1985, when, there was an obstruction by different persons. He submits that no substantial question of law, arises for consideration, in the Second Appeal, and it deserves to be dismissed.
As observed earlier, the suit was filed for the relief of perpetual injunction, in respect of the suit schedule property. The trial Court framed only one point for its consideration.
1) Whether the plaintiff is entitled for permanent injunction as prayed for On behalf of the plaintiffs, PWs.1 to 4 were examined, and Ex.A1 to Ex.A4 were filed. On behalf of the defendants, DW.1 was examined, and Ex.B1 to Ex.B11 were filed.
On dismissal of the suit in O.S.No.239 of 1985, the appellants filed A.S.No.6 of 2009, and the lower appellate Court framed the following points for its consideration:
1). Whether the appellants/plaintiffs have been in possession and enjoyment of item-1 of the suit schedule property 2). Whether the appellants/plaintiffs are entitled for permanent injunction in
respect of item-1 of the suit schedule property against the defendant Grampanchayat as prayed for
3). Whether the judgment and decree passed in the suit by the trial Court in respect of item-1 of the suit schedule property requires any interference and is liable to be set aside as asserted by the appellants/plaintiffs Ultimately, the appeal was dismissed.
It is evident from the cause title, that the appellants claimed the relief against the Secretary of Gram Panchayat, and not Gram Panchayat, as such. It is too well known that the Gram Panchayat is a creature under the A.P.Gram Panchayat Act, since replaced by A.P.Panchayat Raj Act. Whenever, citizen intends to claim relief against Gram Panchayat, it is that very statutory body, which must be shown as a party. The Gram Panchayat may be represented by Sarpanch, or Panchayat Secretary, depending on the facts and circumstances of the case. However, claiming relief against the Secretary, without making the Gram Panchayat, a party, becomes untenable in law. Though this objection was not raised in the suit or in the appeal, it can be taken into account, at this stage also, being purely legal in nature.
Coming to the merits of the matter, there is no dispute that the father of the appellants was assigned, one house site i.e., item No.2 of the plaint schedule, through Ex.A1. Even, the respondent did not lay any claim in relation thereto. The controversy is about item No.1 of the plaint schedule property, said to have been allotted to the mother of the appellants.
The witnesses examined by the appellants, comprised of themselves i.e., P.Ws 1 and 2, and two neighbours, PWs. 3 and 4. Once the respondent doubted and challenged the very validity and genuinity of Ex.A2, the appellants were under obligation to discharge their burden in this behalf. Obviously because, no efforts were made by the appellants to prove Ex.A2, the trial Court recorded a finding that the plea, as to assigning of plot in favour of the mother of the appellants, through Ex.A2, is not proved. Even before this Court, the learned counsel for the appellants, is not able to substantiate that contention. In addition to opposing the case of the appellants, the respondent has placed before the trial Court, voluminous material. Ex.B1 is the certified copy of the plaint in O.S. No.239 of 1985 and Ex.B3 is the judgment and decree therein. The sale deeds in relation to item-1 of the suit schedule property, house tax demand notice, resolution of the Gram Panchayat, were also filed, before the Court. The appellants do not dispute that a room is existing in item No.1 of the suit schedule property, and is being used by the general public as a library. The trial Court, and the lower Appellate court, have recorded the findings of fact, on the basis of evidence that the appellants are not in possession of item No.1 of the suit schedule property, this Court does not notice any question of law, much less, substantial question of law, in the Second Appeal. Accordingly, the Second Appeal is dismissed. There shall be no order as to costs.
________________________ L.NARASIMHA REDDY, J Date: 28.02.2014