Andhra HC (Pre-Telangana)
Guttula Munisetti vs Guttula Dharma Rao And Ors. on 4 February, 2004
Equivalent citations: 2004(4)ALD375, 2004(3)ALT482
JUDGMENT P.S. Narayana, J.
1. Heard Kurella Subrahmanyam, representing the appellant and Sri Chidambaram representing the 1st respondent.
2. The only substantial question of law pointed out by the learned Counsel for the appellant runs as follows:
"Whether the appellate Court is justified in reversing the Judgment and decree of the Trial Court though Ex. A-1 is inadmissible in evidence."
The learned Counsel for the appellant, apart from this substantial question of law, had pointed out to several other factual aspects which are incidental thereto and made elaborate submissions pointing out the findings recorded by the Trial Court in O.S. No. 30/91 on the file of Principal Junior Civil Judge, Narsapufand the appellate Court in A.S. No. 50/96 on the file of Senior Civil Judge, Narsapur. The learned Counsel also had pointed out that even if Ex.A-1 is taken into consideration, it is highly doubtful whether the said document is well returned and even other wise the 1st respondent plaintiff had contravened the several terms and conditions specified therein and in any view of the matter the relief of perpetual injunction being an equitable relief, definitely the same cannot be granted. The Counsel also had pointed out that reasons in detail had been recorded by the Court of first instance and had pointed out that the appellate Court had reversed the said judgment and decree of the Trial Court proceeding on the ground as though the burden lies on the defendants and not on the plaintiff and this approach is totally erroneous. The learned Counsel had taken this Court through several factual findings recorded by the Court of first instance dismissing the suit and the appellate Court reversing the same.
3. Per contra, Sri Chidambaram, the learned Counsel had pointed out that in a matter of this nature, it may have to be compared as to who is entitled for the relief of perpetual injunction. The learned Counsel also pointed out that as far as Ex.A-1 is concerned it is for the Gram Panchayat to question validity of the said document if the concerned Gram Panchayat is so aggrieved. The learned Counsel also further commented that prima facie as per the provisions of the A.P. Panchayat Raj Act, 1994, this property is vested in the Gram Panchayat and the Gram Panchayat had permitted the 1st respondent/plaintiff to plant coconut trees and in default of payment of the fee payable to the Gram Panchayat during any year, the Gram Panchayat is at liberty to proceed with auction without issuing any notice. The Counsel would submit that hence this document is a permission simpliciter and in the light of the stand taken by the defendants, inasmuch as they claimed rights of way by encroachment, a comparison may have to be made who is entitled for the relief of perpetual injunction in a case of this nature. In the said circumstances, inasmuch as the 1st respondent/plaintiff is having better rights, the appellate Court is well justified in reversing the judgment and decree of the Court of first instance. The learned Counsel also pointed out that at any rate in a suit for perpetual injunction simpliciter, this cannot be a substantial question of law at all for the reason that the concerned Gram Panchayat is not-disputing Ex.A-1 and hence the Gram Panchayat was not even added as a party and the defendants who have nothing to do with this property cannot dispute Ex.A-1 transaction.
4. Heard both the Counsel.
5. The 1st respondent/plaintiff filed O.S. No. 30/91 on the file of Principal Junior Civil Judge, Narsapur for perpetual injunction restraining the defendants, their family members from trespassing into the Southern bound of Darbareve drain canal and bunds of cattle water tank and fresh water tank situated at Ramannapalem village and causing damage to 150 coconut trees and saplings raised by the plaintiff on the said bunds of the said tanks and in any way interfering with the peaceful possession and enjoyment of the said coconut trees and saplings and for costs of the suit. The 1st respondent/plaintiff pleaded in the plaint that Ramannapalem Gram Panchayat by its Resolution No. 6 granted permission and executed a permission deed dated 17-2-1987 in his favour to plant coconut plants on the Southern bund of Darbareve drain canal and on the bunds of cattle water tank and fresh water tank in the year 1987 and accordingly he planted 150 coconut trees on the bunds and some of them began yielding coconuts. The plaintiff also pleaded that he had raised coconut saplings and thus had been in peaceful possession and enjoyment of the same by paying the necessary fee or tax to the said Gram Paychayat and the defendants who also tried for the same and could not be successful have been trying to trespass into the said bunds in order to cause damage to the coconut trees and the saplings.
6. Defendants 2, 3 and 5 filed a written statement denying the allegations and taking a stand that Resolution No. 6 of Ramannapalem Gram Panchayat granting permission and executing permission deed dated 17-12-1987 is invalid and not binding on them and also it has no right to grant such permission to the plaintiff as the said Gram Panchayat in its proceedings dated 13-9-1982 vested the drain poramboke in R.S.No. 1115 an extent of Ac. 0-60 cents which is the subject-matter of the suit for the benefit of L.B. Cherla Village within the L.B.Cherla Gram Panchayat. The other allegations that the plaintiff had planted 150 coconut trees in the above bunds and had raised coconut saplings also had been denied. It was further pleaded that their forefathers encroached and they have been in possession and enjoyment of these properties and these defendants used to pay encroachment taxes, but the receipts were lost in floods and hence some of them are only are filed. It was further pleaded that the Government was pleased to dig a fresh water tank and cattle water tank in the drain poramboke in R.S. No. 1115 and also the sites encroached by these defendants fell in tanks to some extents while digging the above two tanks and they reserved their right to have possession and enjoyment of the same which were formed as bunds and there are coconut trees prior to digging of tanks which were planted by these defendants and after digging tanks, the bunds were formed thereon and these defendants have got coconut trees planted long back and saplings on the bunds and are enjoying the usufruct of the trees without any obstruction to the knowledge of each and every one in the village, and in particular to the plaintiff and hence Ramannapalem Gram Panchayat has no right to give permission to the plaintiff who is not in possession and enjoyment of the bunds. It was further pleaded that the defendants alone had planted the coconut trees and the Government collected tax from the 5th defendant on 5-11 -1989 for the single bund which is larger in extent and it is not collecting any encroachment tax from Defendants 2 and 3 as the bunds are very meager and the said Panchayat has been conducting auction to leasehold rights of the tanks for every three years by L.B. Cherla Gram Panchayat and hence the suit is liable to be dismissed.
7. On the strength of the respective pleadings of the parties, the following issues were settled by the Court of first instance.
(1) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ?
(2) To what relief ?
On behalf of the 1st respondent/plaintiff, P.W.1 to P.W.4 were examined am Exs.A-1 to A-4 were marked and on behalf of defendants, D.W.1 to D.W.4 were examined and Exs.B-1 to B-14 were marked. Ex.X-1 was marked through P.W.4 and Exs.C-1 to C-3 were marked by consent. The Court of first instance had recorded a finding that Ex.A-1 is inadmissible in evidence and also had pointed out that even otherwise he have violated the terms and conditions of Ex.A-1 and at any rate on appreciation of the oral and documentary evidence on both sides, had arrived at the conclusion that the discretionary relief of perpetual injunction cannot be granted and ultimately dismissed the suit without costs. Aggrieved by the same, the plaintiff preferred A.S.No. 50/96 on the file of Senior Civil Judge, Narsapur and the appellate Court after examining in detail the respective pleadings of the parties and the grounds raised in the Appeal have framed the following Points for consideration:
(1) Whether Ex.A-1 is liable for stamp duty and registration ?
(2) Whether Ex.B-1 is also liable for stamp duty and registration ?
(3) Whether the plaintiff has got possession to the property in question ?
(4) Whether the plaintiff is entitled to the permanent injunction prayed for ?
(5) To what relief ?
and ultimately arrived at a conclusion that the plaintiff is entitled to permanent injunction in respect of 150 coconut trees on the Southern bund of Darbarevu canal and on the bunds of cattle water tank and the fresh water tank, but the plaintiff is not entitled to any injunction in respect of those bunds and accordingly the Appeal was partly allowed. It was also specifically observed that injunction does not bind the Gram Panchayats or the State. Aggrieved by the same, the 2nd defendant in the suit, 2nd respondent in the Appeal, alone had preferred the present Second Appeal.
8. I had given my anxious consideration to the findings recorded by the Court of first instance and also the appellate Court. No doubt there is some controversy relating to Ex.A-1 on the ground of competency to issue the said proceedings and also whether these properties in fact vest in the Gram Panchayat at all for the purpose of exercising such rights. It is needless to say that when there is no controversy that these properties are poramboke lands, these properties would vest either in the Government or in the local body, the concerned Gram Panchayat, as the case may be. It is pertinent to note that even as per the oral and documentary evidence relied upon by the contesting defendants they are claiming rights over these properties only as encroachers. Section 80 of the A.P. Panchayat Raj Act, 1994 corresponds to Section 85 of the A.P. Gram Panchayat Act 1964. Section 80 of the A.P. Panchayat Raj Act 1994 deals with Vesting of water works in Gram Panchayats and on issue of notification under Sub-section (3), the Government becomes owner of the land specified in the provision. Section 80 of the said Act reads as hereunder:
(1) All public water-courses, springs, reservoirs, tanks, cisterns, fountains, wells, stand-pipes and other water works (including those used by the public to such an extent as to give a prescriptive right to their use) whether existing at the commencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the Gram Panchayat or otherwise for the use or benefit of the public and also any adjacent land, not being private property, appertaining thereto shall vest in the Gram Panchayat and be subject to its control:
Provided that nothing in this sub-section shall apply to any work which is, or is connected with a work of irrigation or to any adjacent land appertaining to any such work.
(2) Subject to such restrictions and control as may be prescribed, the Gram Panchayat shall have the fishery rights is any water work vested in it under Sub-section (1), the right to supply water from any such work for raising seed beds on payment of the prescribed fee, and the right to use the adjacent land appertaining thereto for planting of trees and enjoying the usufruct thereof or for like purpose.
(3) The Government may, by notification define or limit such control or may, assume the administration of any public source of water supply and public land adjacent and appertaining thereto after consulting, the Gram Panchayat and giving due regard to its objections, if any.
The evidence of P.W.1 to P.W.4 and also Exs.A-1 to A-4 and Exs.X-1, Exs.C-1 to C-3 had been discussed in detail. Equally the evidence of D.W.1 to D.W. 4 and Exs.B-1 to B-14 also had been discussed. Several violations of the conditions of Ex.A-1 also had been pointed out and these aspects also had been discussed by both to the Courts below. No doubt, as already referred to supra, the Court of first instance came to the conclusion that Ex.A-1 permission requires registration and for want of registration it is inadmissible in evidence and the same was reversed by the appellate Court.
9. The suit is for perpetual injunction I simpliciter and in relation to the property of either the Gram, Panchayat or the Government. When these parties are fighting the present litigation - one on the ground that permission had been given and the other on the ground that they have been in possession as encroachers, and prima facie when these properties vest in the Gram Panchayat, the validity or otherwise of Ex.A-1 and also the violation of the conditions, if any, may definitely be raised by the concerned Gram Panchayat. No doubt, there is some controversy in this regard also as to which Gram Panchayat has to exercise these rights. Be that as it may, it is made clear that inasmuch as this judgment and decree definitely are not binding either on the Government or on the respective Gram Panchayats, the said parties referred to supra who are non-parties to this litigation, may initiate appropriate and suitable action if they are so advised in this regard. However, the defendants in the suit claiming to be the encroachers cannot claim better rights when compared to the plaintiff who is claiming his rights flowing out of the permission granted by the Gram Panchayat in this regard. The validity or the invalidity of the said proceeding definitely can be questioned by the appropriate party if the said party is so advised, and in my considered opinion, definitely not by the defendants in the suit. It is also pertinent to note that only the 2nd defendant/2nd respondent had carried this matter by way of Second Appeal and all other defendants in fact had been shown as respondents even in the present Second Appeal.
10. On consideration of both the oral and documentary evidence available on record and also the findings recorded by the appellate Court especially in the light of the specific observations made that the judgment and decree would not be binding on the concerned Gram Panchayats, the non-parties to the litigation, I do not see any compelling reasons to record different findings and hence the findings recorded by the appellate Court are hereby confirmed. No doubt, already it was clarified that Government or the concerned Gram Panchayats are at liberty to initiate appropriate action if they are so advised in this regard. Except making this observation, the appellant definitely is not entitled to any relief at the hands of this Court.
11. Accordingly, the Second Appeal shall stand dismissed. No costs.