Andhra HC (Pre-Telangana)
M. Nagamma vs D.A. Nathan And Ors. on 13 July, 2004
Equivalent citations: AIR2005AP69, 2004(6)ALD274, 2004(6)ALT516
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao
JUDGMENT Elipe Dharma Rao, J.
1. The appellant herein who is the unsuccessful plaintiff has preferred the second appeal questioning the judgment and decree dated 2-12-2000 in A.S. No. 33 of 2000 on the file of the Court of Senior Civil Judge, Gooty reversing the judgment and decree dated 19-6-2000 in O.S. No. 199 of 1997 on the file of the Court of Junior Civil Judge, Gooty, Anantapur District.
2. For the sake of convenience, the parties are referred to hereinafter as they are arrayed in the suit.
3. Originally the suit was filed seeking permanent injunction restraining the respondents, their men and agents from interfering with her peaceful possession and enjoyment over the plaint schedule property.
4. The facts leading to the filing of this appeal can be summarised as follows:
5. Plaintiff is the owner of the plaint schedule property consisting of poramboke open site and she has been in possession and enjoyment of the same since about 20 years. In the year 1983, she gave a representation to the President, Gram Panchayat to grant patta in her name and subsequently the President recommended to the District Collector, Anantapur for granting patta in favour of the plaintiff. Subsequently the Mandal Revenue Officer, Gooty inspected the suit site and granted patta in RC.500 (B)/87 dated 30-4-1990 to her. Since then she is in possession and enjoyment of the suit schedule property by erecting a hut. The revenue records also show that she is in peaceful possession and enjoyment of the property. The Gram Panchayat records also stand in her name. Defendants, who are President, Secretary and Joint Secretary of St.Joseph Church, Gooty R.S., constructed the stalls on southernside of her hut. She replaced the old hut for constructing new house. Defendants are objecting her when she started to construct new house in the suit schedule property. Defendants are trying to encroach the plaint schedule property. The revenue authorities have recognized the right and title of the plaintiff over the suit schedule property and granted her No. 2 Adangal. Hence, the plaintiff perfected her title by way of adverse possession. No patta will be granted to any person without cancelling the patta of the plaintiff. When the defendants tried to disturb her peaceful possession and enjoyment, the elders of the locality conducted Panchayat and advised them not to disturb her. But the defendants tried to trespass and dispossess her from the plaint schedule property. Hence, the suit.
6. Defendant No. 1 filed written statement, which was adopted by Defendants 2 and 3. In the written statement filed by the defendants it is stated that the allegations of the plaint that the plaintiff is the owner of property since about twenty years is false. The suit site is abutting public road and it is a part of public road and as it is by the side of road, it is called as 'road margin'. The allegation that in the year 1983, she gave a representation to the Gram Panchayat to grant patta in her name is not correct. Defendants are not aware of the inspection made by the Mandal Revenue Officer, Gooty and thereafter issuance of patta in her favour. To the knowledge of the defendants, Mandal Revenue Officer never inspected the site and he never granted any patta. Patta filed by her is not true and legally valid document and it is fabricated document to lay false claim over the suit schedule property. Plaintiff was never in possession and enjoyment over the suit property and the suit site is abutting road on north and shopping complex of St. Joseph Church, Gooty R.S. is to the south of the site. If any construction is made in the suit site, access to the shopping complex of the church would be blocked and the shops would go waste and no one will occupy the shops of the church to do business. Every citizen of the town has got right over the suit site to make use it as a road and walk over it. The Mandal Revenue Officer has no right to grant patta over such a site. The church of which the defendants are the office bearers was not issued by any notice before issue of patta to the plaintiff by Mandal Revenue Officer. The right of church to have access to its shopping complex from the main road by walking over the suit site cannot be defeated or denied by any authority by issuing patta over road margins.
7. Further under the Gram Panchayat Act such sites vest with the Gram Panchayat and Revenue authorities have no right or competence to grant patta for house site in such places. The suit site was always an open site and no construction was existed in the said site. In fact, Gram Panchayat, Chetnepalli approved the building plan submitted by the authorities of St.Joseph Church to construct shopping complex in Proceedings No. 16/89-90 dated 23-6-1989 and accordingly six shops are constructed, by the church. Even if the Mandal Revenue Officer has granted such patta, it will not defeat or affect the Church to use the site for ingress and egress to the shopping complex. It is false to say that the plaintiff is in possession of the site since 1990 and she had erected a hut in it. No hut or any other construction is there over existed site at any time. It was always an open place. The allegation that Gram Panchayat records stand in her name is false. The allegation that she removed hut recently is false and she has not obtained permission of the Gram Panchayat to construct a house. Defendants, who represent St.Joseph Church objected the plaintiff when she planned to make constructions in the suit site as the said constructions are detrimental to the interest of church, which the defendants represent. Defendants never tried to encroach into plaint schedule property and there is no such necessity for them, as they have lot of open space in Church premises. As soon as they learnt that plaintiff had fraudulently obtained patta, they, filed objection petition before Mandal Revenue Officer, Gooty, who after due enquiries submitted his report to the Revenue Divisional Officer, Anantapur, before whom the entire issue is pending. No elder convened any Panchayat and no advise was given to the defendants. In fact the plaintiff was advised by some respectables not to create unnecessary problems to a religious institution like Church. But the plaintiff did not heed the advise but filed suit with false allegations. Plaintiff was never in possession and enjoyment of the suit site. It is only after obtaining temporary injunction she erected a hut in the site and immediately defendants complained to the authorities about her highhanded acts. The Adangal filed by her in the suit do not relate to the suit property. Even otherwise, she is an encroacher and not a person with any right in the property with the aid of a patta, which has no legal standing. Plaintiff cannot make constructions and create problems for peaceful and lawful enjoyment of the adjacent properties by the rightful owner. There is no cause of action to file the suit and suit is not maintainable. The suit for bare injunction, when she is not in possession is not maintainable in law. It is only after obtaining temporary injunction she erected a temporary hut.
8. On the basis of the above pleadings, the Trial Court framed the following issues:
1. Whether the plaintiff is entitled for permanent injunction against the defendants as prayed for?
2. To what relief ?
9. In support of their respective contentions, plaintiff examined herself as PW.1 and PW.2 and marked Ex.A1 Resolution copy of Chetnepalli Gram Panchayat, Ex.A2 Patta issued by the Government, Ex.A3 No. 2 Adangal, Ex.A4 No. 2 Adangal, Ex.A5 Plaint Plan and Ex.A6 Order of the Chief Commissioner of Land Administration, AP Hyderabad. On behalf of defendants, DWs.1 to 4 were examined and marked Ex.B1 Rough Plan of the suit properly in I.A.No. 563 of 1997 and Ex.B2 Order of Joint Collector, Anantapur.
10. On appreciation of both oral and documentary evidence, the Trial Court answered Issues 1 and 2 in favour of the plaintiffs holding that the Mandal Revenue Officer, Gooty after due enquiry granted patta in respect of suit property in favour of the plaintiff. By virtue of Ex.A2 the plaintiff became owner of the suit property and raised a hut in the same. Subsequently it cannot be said that Ex.A2 had been issued in favour of the plaintiff illegally and Exs.A6, A2 stands good and it can be presumed that plaintiff is in possession and enjoyment over the suit property and her possession cannot be disturbed by the defendants as long as Ex.A2 stands good.
11. Aggrieved by the same, the defendants preferred A.S. No. 33 of 2000 before the Court of Senior Civil Judge, Gooty, Anantapur District. On re-appreciation of both oral and documentary evidence on record, the first Appellate Court framed the following issues for determination:
(1) Whether the plaintiff is entitled for permanent injunction against the defendants as prayed for ?
(2) To what relief ?
12. On re-appreciation of the evidence on record and taking into consideration the entire material placed on record, the first appellate Court allowed the appeal arid held Points 1 to 4 against the plaintiffs holding that Ex.A1 does not show anywhere that she was in possession of the suit site for the last 60 to 70 years and there is no mention that she was having a house over the suit site. The granting of injunction is a discretionary relief of the Court and same cannot be granted over road margins. The judgment of the Trial Court suffers from material infirmities. Even if the decree of the Trial Court is maintained what will be the fate of the defendants and further the access to the defendants to their shopping complex from the road will be blocked resulting grave injustice to the defendants. If plaintiff is allowed to construct house on the road margin, the width of the road became narrow and congested and consequently there will not be any sufficient place for citizens to use the public road for free movement of traffic and it further leads to choking the traffic flow on the road. At any rate, the plaintiff is not entitled for injunction on the ground that patta granted by the Mandal Revenue Officer, Gooty is in the road margin.
13. Assailing the correctness of the judgment and decree dated 2-12-2000 in AS No. 22 of 2000, the plaintiff preferred the second appeal.
14. In this second appeal the learned Counsel for the appellant had raised the following substantial questions of law:
1. Whether the judgment and decree of the lower appellate Court in reversing the judgment and decree of the Trial Court and in dismissing the suit for permanent injunction is legally sustainable and is supported by evidence on record ?
2. Having regard to the fact that the plaintiff was granted patta by he Government and the order of cancellation passed by the Joint Collector is pending adjudication before the Commissioner of Land Revenue, whether the lower Appellate Court acted legally in relying on the order of he Joint Collector and dismissing the suit for permanent injunction ?
3. Whether the lower appellate Court acted legally in holding that the site assigned in favour of the petitioner is a rasta poramboke and in applying the principles laid down in Movva Butchamma v. Movva Venkateswara Rao and Ors., ?
4. In a suit for permanent injunction whether the lower appellate Court has jurisdiction to go into the validity of patta granted in favour of the appellant and in holding that the patta granted does not clothe the plaintiff any legal claim ?
5. Whether the lower appellate Court is justified in dismissing the suit for permanent injunction without taking into consideration of the law that possession follows title ?
6. Whether the reasoning of the lower appellate Court for setting aside the well considered order is legally sustainable and supported by evidence on record ?
15. Mr. O. Manohar Reddy, the learned Senior Counsel for the appellant-plaintiff submits that plaintiff is in possession and enjoyment over the suit property since about 30 years. The Government recognized her possession over the suit property and finally granted Ex.A2 patta in her favour. Exs.A2 and Ex.A4, which are No. 2 Adangal, are also supporting the case of the plaintiff to prove her possession and enjoyment over the suit property. In fact, the defendants also admitted Ex.A2, which was granted in favour of plaintiff. It is also admitted fact that the plaintiff raised kottam in the suit schedule property. In the aforesaid circumstances, plaintiff is having right and title over the suit property by virtue of Ex.A2 and by way of adverse possession. Plaintiff also raised kottam in the plaint schedule property, which cannot be demolished at present. The defendants did not produce any kind of evidence to prove their right and title over the suit schedule property. The defendants without having any valid right and title are trying to disturb the peaceful possession and enjoyment over the suit schedule property.
16. The first appellate Court went on wrong premise holding that Mandal Revenue Officer, Gooty has granted patta in favour of plaintiff on the road margin between the shopping complex of St.Joseph Church and Kurnool Road, obstructing the citizens from using the road and further it will infringe the rights of the defendants to reach their shopping complex from the road. The first appellate Court went wrong holding that defendants have got right to reach their shopping complex from the road as it is accessible to them. The said road is included in the suit site for which patta was granted in favour of the plaintiff.
17. The inference of the first appellate Court is that it is not a right acquired by the defendants but it is a right, which every owner of the property will have right over adjacent road and its margin. The said right of defendants to use as passage and use of public roads and highways are incidental to the ownership of property. If the public highways, roads and road margins are allowed to be used for dwelling purpose, the owner of adjacent property will suffer injury. So the plaintiff under the guise of house-site patta cannot be allowed to defeat the legitimate rights of public from using road margin including the defendants. When the plaintiff attempted to make constructions over the suit site, the defendants are within their right to obstruct such constructions and injunction cannot be granted to the plaintiff.
18. Per contra, Mr. K. Somakonda Reddy, the learned Senior Counsel for the respondents-defendants submit that the Joint Collector, Anantapur in his elaborate order under Ex.B2 has cancelled the house site patta granted to the plaintiff under Ex.A2. The Joint Collector, Anantapur has given clear finding that the plaintiff is not eligible for the house site patta, as she is not a houseless poor and she owns four houses within the limits of Chetnepalli Gram Panchayat, bearing door Nos. 8-13, 8-14, 8-15 and 8-16. This fact is deposed by DW.3 Executive Officer, Gram Panchayat, Chetnepalli and the evidence of DW.2 was not challenged by the plaintiff in her cross-' examination. So, when the plaintiff is not legally entitled to the house site patta and when the patta issued in favour of the plaintiff is not legally sustainable she cannot seek permanent injunction against the defendants, who own adjacent property. The issuing of patta by the Mandal Revenue Officer, Gooty over the suit poramboke in the road margin in front of shopping complex of defendants is against the principles laid by this Court in Sataraboyina Someswara Rao and Ors. v. Sangasetti Tirupathamma and Ors., 1988 (2) (HC) 469. Further the Joint Collector, Anantapur held that the plaintiff is not in possession of the suit site, except keeping some stones obstructing the way to the shopping complex of St. Joseph Church. As against the orders passed by the Joint Collector, Anantapur, plaintiff had preferred a Revision to the Commissioner, Land Revenue, who ordered status quo. Ex.A1 does not prove the possession of the plaintiff over the suit site. He also relied on the judgment stated in Satarboyina's case (supra), wherein it was held that Court can grant mandatory injunction to remove the encroachments -discretion under Section 39 of Specific Relief Act in the matter of granting mandatory injunction has to be exercised in accordance with law and having regard to facts and circumstances of a given case. Further the order of learned single Judge, Mr. Justice Ramanujulu Naidu referred the appeal to a Division Bench. Mr. Justice Jeevan Reddy (On reference in view of the difference of opinion between Mrs. Justice Amareswari and Mr. Justice Upendralal Waghray) at Para 25 of the judgment held:
No person can be allowed to occupy a portion of a public road, a highway, or even a public pathway, and argue that even after his encroachment there is sufficient space left for public to pass by. He cannot be the judge of the requirements of the public, nor can he decide for himself what extent must be left for public use and what extent must be occupied by him. At this rate, anybody will be free to occupy a portion of such public streets, highways and roads with the spacious argument that there is still space left for public to pass by. Slowly these encroachments may become permanent. It is evident that such a course cannot be permitted. It is true that Section 39 expressly speaks of discretion in the Court in the matter of granting a mandatory injunction; but, the said discretion has to be exercised in accordance with law. and having regard to the facts and circumstances of a given case. May be that granting a mandatory injunction would result in eviction of the poor people living in the huts, or the displacement of the school, which is said to be running there for the last several decades; but that can be taken care of by making appropriate directions.
19. Accordingly, in the above case, the learned Judge, Mr. Justice Jeevan Reddy granted mandatory injunction pursuant to the differed judgments of Mrs. Justice Amareswari and Mr. Justice Upendralal Waghray in the following terms; Defendants 2 to 5 shall remove their encroachment within a period of one year from this date. Within this period, the District Collector, West Godavari shall allot an alternate site for locating the school, which is being run in one of the sheds. So far as the other shed is concerned, the said defendant has to find an alternate site himself. He can of course, seek the assistance of the authorities also in that behalf. It is, however, made clear that whether the Government shows an alternate site to the school or not, the mandatory injunction shall come into force on the expiry of one year.
20. In Movva Butchamma v. Movva Venkateswara Rao and Ors., wherein Section 55 of the Specific Relief Act (1877) was dealt by the Division Bench of this Court in a suit for removal of obstruction to public street and for restraining defendant from interfering with plaintiff's right to use street for passage of cattle, carts etc. permanent injunction restraining defendant from interfering with plaintiff's right to use Street granted but mandatory injunction refused on ground that notwithstanding obstruction placed by plaintiff street was wide enough to afford passage to cattle and carts and that plaintiff had not proved special damage - Held, right of public to pass and repass extended over every inch of street and plaintiff was entitled to mandatory injunction for removal of obstructions without proof of special damage. SA No. 239 of 1960 D/- 21-8-1963 (AP) Reversed; and at Paras 1 and 5 of the judgment the Division Bench of this Court held:
The Appellant in this appeal under Clause 15 of the Letters Patent filed the suit out of which the appeal arises for a mandatory injunction for removal of certain obstructions placed on plots marked 2(a) and 3(a) in the plan and for a permanent injunction restraining the defendants from interfering in any manner with the right of the plaintiff to use the street A, B, C, D for the passage of men, cattle and carts for reaching plot No. 1 belonging to her. The A, B, C, D was a public street that the plots marked 2(a) and 3(a) were parts of the public street and that the defendants had encroached upon plots 2(a) and 3(a) and caused certain obstructions to be placed therein which interfered with the right of the plaintiff to the free use of the street for the passage of men, cattle and carts. Both the lower Courts found the facts substantially as alleged by the plaintiff, namely, that A, B, C, D was a public street, that plots 2(a) and 3(a) were parts of the public street and that the plaintiff had a right to use the street for the passage of her men, cattle and carts. On those findings both the lower Courts as well as our learned brother Kumarayyaa, J., were clearly of the opinion that the plaintiff was entitled to a permanent injunction restraining the defendant from interfering with her right to use the street for the passage of men, cattle and carts. The prayer of the plaintiff for a mandatory injunction for removal of the obstructions placed upon plots 2(a) and 3(a), though granted by the Trial Court, was rejected by the lower appellate Court on the ground that notwithstanding the obstructions placed in plots 2(a) and 3(a), the street was wide enough to afford a passage to men, cattle and carts and the plaintiff had not established any special damage entitling her to relief by way of a mandatory injunction. Our learned brother, Kumarayya, J., agreed with the view of the lower appellate Court that the plaintiff was not entitled to the relief of mandatory injunction.
It is, therefore, clear that once a highway, the whole and every part of it is a highway and the public right of way extends over every inch of the highway. A, B, C, D having been found to be a public street the defendant was not entitled to place any obstructions in plots 2(a) and 3(a) which were part of the public street, The defendant cannot be heard to say that the obstructions placed by him cannot be removed so long as he has left a passage of sufficient width to enable men, cattle and carts to go. As we have said, the right of the public to pass and re-pass extends over every inch of the street and the defendant cannot in any manner restrict the right and compel the plaintiff to confine herself to a part of the street of the choice of the defendant. The plaintiff is clearly entitled to the mandatory injunction for removal of obstruction and as rightly pointed out by Mr. Suryanarayana the permanent injunction granted by the lower Courts cannot have its full effect unless the mandatory injunction is granted too.
21. Except contending that the first appellate Court has passed orders reversing the judgment and decree of the Trial Court without appreciating the documentary evidence marked under Exs.A2 and Ex.A4, which are No. 2 Adangal, which are supporting the case of the plaintiff to prove her possession and enjoyment over the suit property, the plaintiff has failed to prove that when patta was granted to her for house-site towards road margin and vested with the Gram Panchayat, the Revenue Department does not get any power to assign the suit schedule land to the plaintiff, until and unless, it is converted and entrusted to the Revenue Department. A perusal of the material available on record does not show that the suit schedule land was converted and Gram Panchayat has entrusted the same to the Revenue Department, so that it can be assigned to her as a house-site. Moreover when the defendants without having any valid right and title are trying to disturb her peaceful possession and enjoyment over the suit schedule property, the learned Counsel for the appellant failed to explain as to how the first appellate Court went on wrong premise holding that Mandal Revenue Officer, Gooty has granted patta in favour of plaintiff on the road margin between the shopping complex of St.Joseph Church and Kurnool Road, which may not cause obstruction to the citizens from using the road and further infringing the rights of the defendants to reach their shopping complex from the road. But the first appellate Court on reappreciation of both oral and documentary evidence has gone to the root of the case wherein the Joint Collector, Anantapur in his elaborate order under Ex.B2 through Proceedings D.Dis.(E4)371/98, dated 23-12-1999 cancelling the house-site patta allotment made by the Mandal Revenue Officer, Gooty, in favour of the plaintiff under Ex.A2. The order of the Joint Collector, dated 23-12-1999 in Para 4 reads as follows:
"It is reported by the Mandal Revenue Officer, Gooty though house-site patta was granted to Smt. Nagamma wife of Govindu, she has not occupied the said plot by hut or pucca house since 1990. She kept some stone heaps obstructing the way to business stalls of St.Joseph Church"
22. The Joint Collector, Anantapur has given clear finding that the plaintiff is not eligible for house site patta, as she is not a houseless poor and she owns four houses within the limits of Chetnepalli Gram Panchayat, bearing Door Nos. 8-13, 8-14, 8-15 and 8-16. This fact is deposed by DW.3 Executive Officer, Gram Panchayat, Chetnepalli, and the evidence of DW.2 was not challenged by the plaintiff in the cross-examination. The above finding of the Joint Collector is further fortified by non-production of any kind of documentary evidence by the plaintiff to substantiate her allegation that there was a hut in the suit site at any point of time. So, when the plaintiff is not legally entitled to the house site patta and when the patta issued in her favour is not legally sustainable, she cannot seek permanent injunction against the defendants, who own adjacent property. Further Ex.A1 does not show anywhere that she was in possession of the suit site for the last 60 to 70 years and there is no mention that she was having a house over the suit site. The granting of injunction is a discretionary relief of the Court and same cannot be granted over road margins. The judgment of the Trial Court suffers from material infirmities. The learned first appellate Judge has rightly observed that even if the decree of the Trial Court is maintained what will be the fate of the defendants and further access to the shopping complex of the defendants from the road will be blocked resulting grave injustice to the defendants. If plaintiff is allowed to construct house on the road margin, the width of the road becomes very narrow and congested and consequently there will not be any sufficient place for citizens to use the public road for free movement of traffic and it further leads to choking the traffic flow on the road. At any rate, the plaintiff is not entitled for injunction on the ground that patta granted by the Mandal Revenue Officer, Gooty is in the road margin. In those circumstances, I hold that the learned Senior Civil Judge, Gooty has rightly passed the judgment and decree dated 2-12-2000 in A.S. No. 33 of 2000 on the file of his Court in reversing the judgment and decree dated 19-6-2000 in O.S. No. 199 of 1997 on the file of the Court of Junior Civil Judge, Gooty, Anantapur District, which does not call for any interference of this Court.
23. From the above discussion, admittedly, it may be recalled that when patta was granted to the plaintiff as a house-site towards road margin arid vested with the Gram Panchayat, the Revenue Department does not get any power to assign the suit schedule land to the plaintiff, until and unless, it is converted and entrusted to the Revenue Department. A perusal of the material available on record does not show that the suit schedule land was converted and Gram Panchayat has entrusted the same to the Revenue Department, so that it can be assigned to the plaintiff as a house-site. Therefore, candidly, it goes without saying that the assignment itself tantamount to be illegal and void. However, taking into consideration the fact that plaintiff had preferred Revision before Commissioner, Land Revenue against the orders passed by the Joint Collector, Anantapur, who ordered status quo, and in view of those circumstances, I deem it appropriate to direct the Commissioner, Land Revenue to expedite the hearing of the revision and pass appropriate order on merit and in accordance with law, uninfluenced by any of the findings of this Court in second appeal, within six months, from the date of receipt of a copy of the judgment, if not already disposed off.
24. In the result, the second appeal is dismissed. No costs.