Andhra HC (Pre-Telangana)
Gram Panchayat, Kuchipudi, Guntur vs Yarlagadin Ankeneedu Prasad And Ors. on 31 August, 2001
Equivalent citations: 2001(6)ALD379, 2001(6)ALT390
Author: Bilal Nazki
Bench: Bilal Nazki, Elipe Dharma Rao
JUDGMENT Bilal Nazki, J.
1. The 1 st defendant has filed the appeal against the judgment and decree of Principal Subordinate Judge, Tenali in OS No.33 of 1986. The suit was filed by respondents 1 and 2 originally for declaration and injunction. Declaration was sought that the plaintiffs had the right of fishery in the suit tank they had also the right to enjoyment of usufruct and right to management over the suit tank. Consequential relief of injunction restraining the defendants from interfering was also sought. Subsequently the plaint was amended and a declaration for ownership was also sought for from the Court. The assertions made in the plaint were that the plaintiffs were the sons of late Raja Yarlagadda Sivarama Prasad, Zamindar of Devarakota paragana who was Zaminder till the abolition of zamindari. The plaintiffs contended that the suit tank was dug and constructed by one Yarlagadda Kodandaramana one of their ancestors in or about 18th century and they and their ancestors had been exercising the rights of ownership over the suit tank. They had been enjoying the usufruct of the trees on the banks of the tank since the time immemorial. They were also using the tank for growing fish and fishery rights were being leased out by them. They were also repairing the tank and its banks. According to them they were in possession of the suit tank and were also exercising ownership rights over the tank. They had uninterrupted possession and enjoyment of ownership as owners which was within the knowledge of one and all. The rights of the plaintiffs were never interfered by anybody since the excavation of the tank in 18th century. According to them there was an area of 10 acres in the same survey number in which the suit tank is situated and a portion of that land was even sold by the plaintiffs. They had also filed suits against encroachers. They had also granted permission to the local board for laying roads over a portion of the suit land. In 1920 when some of the villagers of Kuchipudi tried to interfere with the rights of the plaintiffs' ancestors Raja Yarlagadda Ankineedu Prasad Bahadur filed OS No.326 of 1923 on the file of District Munsif, Tenali for declaration and for perpetual injunction and the suit was decreed on 6-7-1925. In this suit the rights of ownership and possession of the suit tank and right to fishery and usufruct of the plaintiffs' ancestors were upheld. Against the judgment the defendants in the suit preferred an appeal being AS No. 340 of 1925 before the District Court, Guntur which was transferred to Sub-Court, Bapatla and numbered as AS No. 193 of 1996. The appeal was dismissed on 28-2-1927 upholding the judgment of the lower Court. It was also contended by the plaintiffs that their father filed suits in the District Munsif Court, Repalle for evicting the encroachers in 1945 to 1953. Some of the suits were referred to arbitrators and awards were passed recognizing the rights of plaintiffs' ancestors over the property which forms part of Survey Nos. 408 and 409. Some suits were decreed on contest. The plaintiffs also contended that their ancestors, their father and they themselves were leasing out the fishery rights in the suit tank every year. The income realised from the tank was partly used by the plaintiffs and partly it was used for the repairs of the tank. Their ownership had never been challenged by anybody. The plaintiffs further contended that one Tumala Sriramulu the present Sarpanch of the defendant Panchayat himself was taking on lease the fishery rights in the suit tank from the plaintiffs. Two years before filing of the suit the lease was not given to him because a third party offered higher price. Since Tumala Sriramulu could not get the lease rights of fishing that became the reason for filing the suit on behalf of Panchayat by Sriramulu. The said Sarpanch started creating trouble to the plaintiffs and influenced the Executive Officer of the Panchayat who made a representation to the Panchayatraj Department stating therein that the suit property had vested in the Panchayat and the Panchayat then tried to lease out the fishery rights of the suit tank. Then the second plaintiff filed a writ petition against the defendant questioning the rights of the 1 st defendant in putting the fishery rights to auction. The defendant filed his counter and the High Court passed orders on 18-12-1985 directing the 2nd plaintiff to file suit against the defendant for declaration of his rights within three months from the date of the judgment. The High Court also directed the second plaintiff to give bank guarantee for an amount of Rs. 50,000/- to the defendant Panchayat towards the lease of fishery rights in the suit tank for 1985-86 within six weeks. Andhra Bank, Morrispet branch, Tenali gave the bank guarantee for Rs. 50,000/- to the defendants on behalf of the second plaintiff. The Executive Officer of the Gram Panchayat returned the guarantee on the ground that it was not in the proper form and made an advertisement for auction on 26-2-1986. The second plaintiff thereafter approached the High Court again and the High Court directed the second plaintiff to deposit Rs. 50,000/- by way of demand draft with defendants on or before 4-3-1986 and to file a suit on or before 18-3-1986. The second plaintiff thereafter deposited the amount of Rs.50,000/- with the defendant before expiry of time granted by the High Court and filed the suit. The first defendant filed written statement denying the plaint allegations. He stated that the suit tank in survey No. 409/2 was Government poramboke in the revenue records and the revenue entry clearly shows that Raja Yarlagadda Ankineedu Bahadur, Zamindar was appointed a trustee in the vacancy caused by the death of his father Mallikarjuna Prasad Naidu Bahadur in the proceedings No.264, dated 20-12-1921. The endorsement was signed on 20-6-1922 and the same had been filed in 1A No. 1140 of 1986. The first defendant also contended that the revenue record clearly showed that tank was being referred to as "Sri Rajah Yarlagadda Mallikrarjuna Prasad Naidu Badadur Zamindar's His Dharma Cheruvu" and the said Zamindar was acting as its trustee and on his death the Tahsildar issued orders appointing his son Raja Yarlagadda Ankineedu Bahadur as trustee of the said Dharma Cheruvu and for some time it continued so and after the death of Raja Yarlagadda Ankineedu Bahadur, Zamindar no other successors were appointed and therefore right from 1921 the tank was shown in revenue records as Government poramboke. The first defendant further contended that after coming into force of the Madras Village Panchayat Act, 1950 the suit tank vested with the defendant Gram Panchayat. In the list prepared under the Act the suit property was shown as Government poramboke and after coming into force of A.P. Gram Panchayats Act the District Collector, Guntur published in Guntur District gazette the list of porambokes vested in the Panchayat under various sections in Tenali taluk and at page 60 of the gazette S.No. 409/2 was referred as "Cheruvu". Therefore, they contended that even prior to 1921 the suit tank was a Government poramboke and subsequently it vested with Panchayat first on coming into force the Madras Village Panchayat Act and thereafter by virtue of A.P. Gram Panchayats Act. The Gram Panchayat passed a resolution No. 60 on 26-8-1985 to effect necessary repairs to the suit tank. Another resolution was passed on the same day requesting the Divisional Panchayat Officer to fix up upset price for conducting auction of the tank and the upset price was fixed at Rs. 1,50,000/-. The resolution dated 24-10-1985 accepted the same and auction of fishery rights was fixed at 2-30 p.m., on 11-11-1985, thereafter the plaintiff approached the High Court. The second defendant also filed written statement denying the allegations made in the plaint and stated that after coming into force A.P. Gram Panchayat Act all the tanks were vested in the Gram Panchayat and so the contention of the plaintiffs that the suit tank was private tank of Rajas of Charlapalli was not correct and the suit was liable to be dismissed. A rejoinder was filed by the plaintiffs stating that the plaint schedule tank was not Government poramboke and District Collector has no power to issue notification or communication to ' show that the plaint schedule property had vested in the Gram Panchayat. The plaintiffs have been maintaining and enjoying the suit tank from times immemorial.
2. On the basis of these pleadings the following issues were framed:
1. Whether the plaintiffs are entitled to the declaration as prayed for in the suit?
2. Whether the plaintiffs are entitled for the consequential relief of permanent injunction as prayed for?
3. Whether Y. Mallikarjuna Prasad and Y. Ankineedu Prasad the ancestors of the plaintiffs were the trustees of the suit tank?
4. Whether the suit tank vested in the defendant Gram Panchayat?
5. Whether the plaintiffs cannot claim any rights over the suit tank adverse to the interest of either the Government or the defendant Gram Panchayat?
6. Whether the State Government is a proper and necessary party to the suit?
7. Whether the suit is bad for non-joinder of necessary "arties?
8. Whether the suit is not maintainable?
9. Whether the plaintiffs and their predecessors in title were ever in possession and enjoyment of the suit tank?
10. To what relief?
The following additional issues were also framed :
1. Whether the plaintiff is entitled for declaration and injunction as prayed for?
2. Whether the suit is maintainable against the 2nd defendant for want of Section 8- CPC Notice?
3. In view of the facts narrated hereinabove and the issues framed we are of the view that issue No.4 was one of the most important issues to reach to a conclusion. The trial Court on the basis of documents and evidence came to the conclusion that the tank was owned by the plaintiff, therefore it passed the decree. On issue No.4 the trial Court was cryptic in its order by saying, "As the first defendant failed to prove that the suit tank vested with it, I hold that the suit tank is not vested with the 1st defendant Gram Panchayat. I answer the issue accordingly. " At present we are not adverting to scrutinise the evidence as to whether the plaintiffs were really the owners of the tank or the trustees for management of the tank, we are deferring this question because if it is found that the tank had vested in Gram Panchayat by virtue of Madras Village Panchayat Act, 1950 and again by virtue of A.P. Gram Panchayat Act, 1964 then the question of ownership may become secondary. Addressing these two questions also is of prime importance.
4. Section 77 of the Madras Village Panchayat Act, 1950 lays down :
,"77. Vesting of water-works in Panchayats ;--(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 exising at the commencement ' of this Act or afterwards made, laid or erected, and whether made, laid or erected at the cost of the Panchayat or otherwise, and also any adjacent land (not being private property) appertaining thereto, shall vest in the Panchayat and be subject to its control;"
After the Madras Village Panchayats Act, 1950 the A.P. Gram Panchayats Act, 1964 came into force. Section 85 of the 1964 Act lays down :
"85. Vesting of water works in Gram Panchayats :--(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;"
5. In terms of Section 85 of A.P. Gram Panchayats Act gazette notification was issued on 9-3-1966 which is exhibited as Ex. X4 in the suit. In this notification the suit tank was shown to have vested with the Gram Panchayat, but even after issuance of such a notification the Gram Panchayat did not treat the property as its own till 1985 when for the first time they tried to sell the fishing rights. On the other hand, the Gram Panchayat even after 1966 made representations to the plaintiff on various occasions treating the tank to be property belonging to the plaintiffs. As per Ex. A137 the Gram Panchayat passed a resolution on 8-6-1960 in its extraordinary meeting requesting the Zamindar to permit them to construct septic tank, latrines, Panchayat Board office building, Veterinary Hospital, reading room on the southern side of the tank and for laying roads on the eastern side of the tank. Ex. A137 is the agenda for the special meeting and Ex. A138 is the copy of the resolution passed in the said meeting. The agenda and the resolution are reproduced:
"Agenda To seek the permission of Sri Raja Yarlagadda Sivarama Prasad Bahadur Zamindar for construction of septic tank and latrines, Panchayat Board office building, Veterinary Hospital, reading room and to lay a road for the convenience of the farmers, carts and animals, on the southern side and eastern sides of the tank bund belonging to the Zamindar of our village.
Resolution It is unanimously resolved to seek the permission of the Zamindar."
Ex.A155 is a letter written on 29-4-1966 i.e., after the gazette notification of 9-3-1966. It was written by the Sarpanch to Raja Yarlagadda Sivarama Prasad Bahadur. In this letter also the Gram Panchayat wanted to construct a septic tank. The following paragraph of the letter is important.
"Along with the said revetment, it is requested that permission may be granted for laying a metal road on the bund. We request that permission may be granted for construction of a septic tank in 2 cents of land on the tank bund. For which we are always grateful to your Highness."
By another letter dated 9-6-1960 then Sarpanch of Kuchipudi requested the Raja of Charlapally to grant sites from the suit land for construction of Panchcayat Board office and public latrines. Ex. A158 is the said letter. Then, the Zamindar of Charlapally transferred 85 cents of land to Kuchipudi Panchayat as gift for laying roads and for construction of septic tank and latrines on the tank bund in survey No. 409/ 2 at Kuchipudi village on condition that it will vest back of him if at any time in future it was not used for the purpose for which it was gifted out. The schedule of the land is in Ex. A157 dated 18-6-1967. The Zamindar executed a gift deed in favour of the Panchayat for construction of latrines, Panchayat Board office building and for laying roads. Thereafter in an emergency meeting dated 12-1-1968 the Panchayat passed a resolution to make a request to the Zamindar to purchase 100 Sq. yards of site belonging to Mangamma and after purchasing gift it out to the Panchayat as the land gifted out by him was not suitable. In pursuance of this resolution a letter was addressed by the Sarpanch on 14-6-1968 to Zamindar to take back the land gifted by him and give the land after purchasing it from Mangamma,
6. No doubt there is overwhelming evidence that the plaintiffs had been using the suit property and its usufruct for a long time but at the same time there is no evidence to show that the proprietary rights of the suit property were ever given to the plaintiffs-respondents. Even if it was so, the plaintiffs-respondents had been divested of their rights first by the Madras Village Panchayats Act, 1950 and secondly by A.P, Gram Panchayats Act, 1964. By virtue of vesting of rights of the suit tank in the Gram Panchayat all the rights which the plaintiffs-respondents might have had got extinguished. It is curious to note that even in the amended plaint the respondents-plaintiffs have not challenged the notification which was gazetted in terms of Section 85 of the A.P. Gram Panchayats Act, 1964 which has been referred to hereinabove. There is no evidence to show that any notification had been issued in terms of Section 77 of Madras Village Panchayats Act, 1950, but there is positive evidence that notification has been issued in terms of A.P. Gram Panchayats Act, 1964. In the absence of any challenge to the notification and to the provisions of law the trial Court should have decided issue No.4 against the plaintiffs. It is true that even after issuance of notification the Gram Panchayat treated the suit property to be the property of the plaintiffs but they had no right to do so and if the Panchayat was treating the suit property as the property of plaintiffs they were also acting illegally. There cannot be a waiver by Panchayat against the rights vested in it by operation of law. Section 85 of the A.P. Gram Panchayats Act clearly lays down that all public water courses, springs, reservoirs, tanks, cisterns, fountains, wells etc., vest in the Gram Panchayat. This provision not only deals with existing rights at the time of commencement of the Act but also rights over public water courses, springs, reservoirs, tanks, cisterns, fountains, wells etc., afterwards made, laid or erected. So, even if public water courses, springs, reservoirs, tanks, cisterns, fountains, wells etc., were made after the commencement of the Act even then the rights stood extinguished and the properties stood vested in the Gram Panchayat.
7. Though many arguments were made at the Bar and many judgments were cited but we feel that issue No.4 relating to vesting of the suit property in the Gram Panchayat was the most, important issue. This issue had not at all been dealt with by the trial Court. The trial Court has misdirected itself by scrutinising the evidence and coming to the conclusion that the plaintiffs have been enjoying the property from times immemorial but it failed to see the impact of A.P. Gram Panchayats Act, 1964. The plaintiffs did not challenge neither Section 85 of the A.P. Gram Panchayats Act nor the notification issued under the appropriate provision vesting the land in Gram Panchayat. The dictionary meaning of 'vest' is, "to bestow or confer power or authority to a person; to confer property or power on a person with immediate fixed right or immediate or future projection; come into possession of a person". Therefore, by operation of the A.P. Gram Panchayats Act the rights, if any, of the plaintiffs got extinguished. We are fortified in our view by the judgment of Supreme Court in Pushpagiri Math v. Kapparaju Veerabhadra Rao, . The Supreme Court had the occasion to consider similar provisions in the A.P. Inam Abolition and Conversion into Ryotwari Act (37 of 1956). While interpreting Section 3 and 7 of the Act the Court said; "It would, therefore, be clear that after the Inam stood abolished the pre existing rights extinguished and the obligation to render service burdened with the land was relieved..... Thus the pre existing right, title and interest stood extinguished.....It would thus be clear that by statutory operation of the provisions of the Act the pre-existing right or interest held by the inamdar or the institution stood extinguished.....". Therefore, it is clear that after the vesting of the rights in Gram Panchayat by operation of law the rights or interests of the plaintiffs stood extinguished. As has been stated earlier also the plaintiffs had not even taken care of challenging the gazetted notification by which the tank has been declared to have vested with the Gram Panchayat.
8. For the reasons, we find that the trial Court had misdirected itself by merely stating "As the 1st defendant failed to prove that the suit tank vested with it, I hold that the suit tank is not vested with the 1st defendant Gram Panchayat" We fail to appreciate that what proof the 1st defendant could produce except Section 85 of the A.P. Gram Panchayats Act, 1964 and the notification issued under the Act for stating that the suit tank had vested with it. It is a different matter that the Gram Panchayat did not act as the owner of the tank for some time, but we are of the considered view that after vesting of the rights with the Gram Panchayat by their conduct they could not give up the rights vested in the Gram Panchayat as the tank was not being held by an individual but by Gram Panchayat for communal purposes.
9. Therefore, we set aside the judgment of the trial Court and allow the appeal.