Smt. K. Nagamani (incharge)

1

IN THE COURT OF THE PRL.SENIOR CIVIL JUDGE AT BAPATLA

Present: Smt. K. NAGAMANI, Addl.Senior Civil Judge, Tenali FACPrl.Senior Civil Judge, Bapatla.

Friday, this the 17 thday of August, 2018.

Appeal Suit No.27/2010

Between:

Konne Subbamma.... Appellant/Plaintiff

And

1.The State of Andhra Pradesh, Rep.by its District Collector, Guntur.

2.The Mandal Revenue Officer, (Tahsildar) Bapatla. … Respondents/Defendants

On appeal against the Judgment and decree dt.30-06-2010 passed by the learned Principal Junior Civil Judge, Bapatla made in

O.S.No.278/2005

Between:

Konne Subbamma.… Plaintiff

And

1.The State of Andhra Pradesh, Rep.by its District Collector, Guntur.

2.The Mandal Revenue Officer, (Tahsildar) Bapatla. … Defendants

This Appeal Suit is coming before me for final hearing on 10-08-2018 and upon perusing the grounds of appeal, Judgment and decree of the trial court and other material papers on record and upon hearing the arguments of Sri D.Sreerama Murthy., Advocate for the

Appellant/Plaintiff and of Sri Asst. Government Pleader, Advocate for the

Respondents/ Defendants and after having stood over for consideration till this day, this court delivered the following :-

J U D G M E N T

The appellant is unsuccessful plaintiff in O.S.No.278/2005 on the 2 file of Principal Junior Civil Judge Court, Bapatla and the first respondent is the State of Andhra Pradesh, Represented by District Collector, Guntur and second respondent Mandal Revenue Officer, Bapatla and appellant referred this appeal by challenging the decree and judgment passed in

O.S.No.278/2005 dated 30-06-2010 which was dismissed by the Principal

Junior Civil Judge, Bapatla.

2. For the sake of convenience, both parties in this appeal can be referred as they were arrayed in O.S.No.278/2005.

3. The appellant herein filed a suit against both the respondents i.e., D1 and D2 in O.S.No.278/2005 by seeking the relief of permanent injunction against the defendants from interfering with the plaintiff’s possession and enjoyment of the plaint schedule property, what so manner and grant cost of the suit and such other reliefs as the court deems fit and proper with the following averments :-

That the husband of the plaintiff by name Kotaiah encroached the plaint schedule property in the year 1954 and raised gradually the level of land and cultivating paddy crop in the schedule property and also paid encroachment taxes to the suit schedule property during his life time and the Government also issued Section 7 notices and the encroachment tax receipts and after the demise of the husband of the plaintiff she continued in possession and enjoyment of the plaint schedule property without any interruption by paying encroachment taxes to the defendants. Therefore, the plaintiff has been continuously uninterrupted possessing holding over the schedule property for the last 50 years to the knowledge of the defendants’ authority and her possession became hostile possession over the schedule property against the Government, when the Government 3 issued encroachment taxes in favour of plaintiff and her husband by name

Kotaiah and also issuing Section 7 Notices against the husband of the plaintiff in the year 1954 and the plaintiff acquired title by way of adverse possession against the defendants authority for the schedule property and the plaintiff belongs to the weaker section and she has no other property, except the schedule properties to maintain herself, that the defendants are trying to dispossess her from the plaint schedule property highhandedly, illegally with an intention to take the schedule property for alienating the schedule property by issuing pattas to the people due to political pressures.

Hence, she filed O.S.No.278/2005 by seeking the relief of permanent injunction against the defendants from interfering with her peaceful possession and enjoyment of the paint schedule property.

4.The second defendant filed written statement which was adopted by the first defendant. The second defendant denied the averments of the plaint and mentioned that they never gave any sort of permission either to plaintiff or to her late husband for encroachment and cultivation of the suit schedule property and that the encroachment is objectionable and the

State is the owner of the suit schedule property and if it is registered as “Kunta Poramboke” in the revenue records and the plaint schedule property is situated within the Bapatla Municipality, there is no provision for assignment of Government Land for agricultural purpose except house site in Municipal Area and the State Government have announced to provide house sites to the poor and weaker sections in Municipal Area under Rajiv

Gandhi Gruhakalpa or Prajapatham or such other allied schemes for the upliftment of the Urban Public and downtrodden and under Section 4 of

Land Encroachment Act there is bar of jurisdiction of the Civil Court the 4 appropriate action within the purview of the Statute will be adopted for the eviction of the unauthorized occupation of the plaintiff and they are not under influence of the political parties and they are bound to exercise their duties under the Statutes, therefore, the suit is liable to be dismissed.

5. Basing on the above pleadings, the learned trail court framed the following issues for trial:-

1.Whether this court has got jurisdiction to try this suit?

2. Whether the plaintiff has perfected her title by adverse possession?

3. Whether the plaintiff is entitled for permanent injunction as prayed for?

4. To what relief?

6.During the course of trail before the trial court, on behalf of the plaintiff, the plaintiff herself examined as P.W.1 and also examined her son as P.W.4 and got examined one Kolati Yesu and Allam Sankara Rao as

P.Ws.2 and 3 and Exs.A1 to A32 were got marked.

7.On behalf of the defendants, D.W.1 was examined and no documents were filed on behalf of the defendants.

8.Basing on the material available on record, the Learned Principal

Junior Civil Judge, Bapatla dismissedthe suit vide its decree and judgment

dated 30-06-2010. Aggrieved against the said decree and judgment the

plaintiff in O.S.No.278/2005 preferred this appeal. Hence, the present appeal.

9.I have gone through the evidence adduced by both sides before the learned Principal Junior Civil Judge Court, Bapatla and decree and judgment dated 30-06-2010 passed by the learned Principal Junior Civil 5

Judge Court, Bapatla and the grounds of appeal. Now the points for

determination is :-

1) Whether the appellant is entitled for permanent injunction against the respondents 1 and 2 by restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property as prayed for?

2) Whether the Principal Junior Civil Judge, Bapatla committed any error in dismissing the suit? Whether the decree and judgment passed by the Principal Junior Civil Judge, Bapatla needs to interfere by this court?

3) To what relief?

10.POINT NO.1 :-

The contention of the plaintiff/appellant is during the life time of her husband by name Kotaiah he encroached the plaint schedule property in the year 1954 and gradually raised the level of the land and cultivated the paddy crop in the plaint schedule property and also paid encroachment taxes to the plaint schedule property and the Government also issued

Section 7 Notices during his life time and after his death, the plaintiff continuing in the plaint schedule property by paying taxes to the defendants and they are in peaceful possession and enjoyment of the suit schedule property for the last 50 years to the knowledge of the defendants’ authority, therefore, her possession over the suit schedule property became hostile against the Government as the Government issued encroachment taxes in favour of the plaintiff and her husband namely

Kotaiah and plaintiff acquired title over the suit schedule property by way of adverse possession against the defendants authority over the suit schedule property and she belongs to the weaker section and she has no 6 other property, except the suit schedule property to maintain herself, but, the defendants are trying to dispossess her from the plaint schedule property highhandedly, illegally with an intention to take the suit schedule property, for issuing pattas to the public due to political pressures, but, the same was denied by the defendants, their contention is they never gave any sort of permission either to the plaintiff or her husband for encroachment and cultivation, but they themselves occupied the suit schedule property and the suit schedule property is registered as “Kunta

Poramboke” in the revenue records and the same is situated within the

Bapatla Municipality and the State is the owner of the suit schedule property and there is no provision for assignment of Government land for agricultural purpose except house site in municipal area and as per Section 4 of Land Encroachment Act, there is bar of jurisdiction of the Civil Court to dispose the matter and there is no cause of action to file the suit. Hence, the same is liable to be dismissed.

11.Both the counsels for the parties filed written arguments.

12.As discussed above in order to prove the contention of the plaintiff she herself examined as P.W.1 and got examined P.Ws.2 to 4 and got marked Exs.A1 to A32 before the learned Principal Junior Civil Judge Court,

Bapatla and on behalf of the defendants, D.W.1 only examined and no documentary evidence produced.

13. The grounds of Appeal are :-

The Lower Court went wrong in observation that the appellant and her husband are in possession and enjoyment of the suit schedule property since 1954 by the date of suit as a permissible possession and did not consider the documentary evidence submitted by the plaintiff and D.W.1 7 admitted in his cross-examination that the appellant and her husband have been in possession of the suit schedule property since 1954 as a encroacher by paying Land Revenue and the lower court is failed to distinguish that the difference between levy assessment under Section 3 of

A.P. Encroachment Act 1915 and Land Revenue Tax and also not considered the evidence of P.Ws.1 to 4. Hence, the same shall be set aside by this

Appellate Court.

14.It is an admitted fact that the plaintiff or her husband are not the absolute owners of the suit schedule property as the plaint schedule property belongs to the Government and it was mentioned as “Kunta

Poramboke” and it is also not the contention of the plaintiff that she is the owner of the suit schedule property and she is also admitting that the

Government is true owner of the suit schedule property but her contention is her husband encroached the suit schedule property in the year 1954 and cultivating the same since then by way of raising paddy crop and paying encroachment taxes to the defendants and received Section 7 Notices from the Government, therefore, the husband of the plaintiff during his life time and after his death, the plaintiff are in uninterrupted possession of the plaint schedule property for more than 50 years to the knowledge of the

Government and its authorities i.e., defendants 1 and 2 and therefore, they have perfected their title by way of averse possession.

15.As discussed above, P.W.4 is none other than the son of P.W.1, his

Chief-examination discloses the same contents of the plaint and through

P.W.1 Exs.A1 to A32 were got marked. Ex.A1 is the demand notice dated 20-01-1955. Ex.A2 is the cist paid by the husband of the plaintiff to the 8

Government from 1954 to 1963. Exs.A3 and A4 are the demand notices.

Exs.A5 to A29 are the cist receipts. Ex.A30 is the Valuation certificate issued by SRO, Bapatla and Ex.A31 is the adangal pertaining to the fasli 1383 and Ex.A32 is the adangal pertaining to the Fasli 1433.

16.As discussed above, it is an admitted fact that the suit schedule property belongs to the Government and it is situated within the municipal limits, as P.W.1 also admitted the same during her cross-examination and

P.W.1 admitted that the cost of the suit schedule property is about 2 crores and P.W.4 stated that the cost of the suit schedule property is 2 lakhs per acre and P.Ws.2 and 3 stated that they are not having any lands near to the suit schedule property and coming to the evidence of D.W.1 who worked as Deputy Tahsildar, Bapatla at the time of giving evidence before the Principal Junior Civil Judge Court, Bapatla he stated that the second defendant did not give any permission either to the plaintiff or to her late husband for encroachment and cultivation and encroachment is only permissible and there is no provision for assignment of Government land for agricultural purpose except house site in Municipal Area and during the course of cross-examination of D.W.1, he admitted that as per the records maintained by their department plaint schedule land is in possession of the plaintiff and her husband and since the year 1954 as encroachers and they have also paid land revenue to the government and as per Exs.A31 and

A32 the plaintiff and her husband were in possession of the suit schedule property from 1973 to 2005 and he cannot say the names of other persons who are in possession of the land covered under S.No.339/2 apart from the plaintiff without verifying the records and he cannot say whether the plaintiff is in possession of the plaint schedule property as on the day of 9 her evidence or not. Therefore, from the oral and documentary evidence adduced by the both the parties, it is clear that the Government is the owner of the plaint schedule property but the plaintiff and her husband have been in possession and enjoyment of the same since 1954 as encroachers. Now it shall be decided whether the plaintiff is entitled for permanent injunction against the Government or not?. The learned counsel for the appellant/plaintiff filed written arguments by mentioning that as per law encroacher’s possession is heritable, transferable and appellant/plaintiff taken the possession of her husband and adverse possession against Government can be sought for 30 years statutory period whereas the plaintiff and her husband are in possession and enjoyment of the suit schedule property for more than 50 years.

Therefore, the respondents/respondents lost their title over the suit schedule property and the plaintiff is entitled for permanent injunction. For that he relied upon a decision reported in 1981 AIR (SC) 707 wherein their lordship held that :-

The possession of the plaintiff was hostile to the full knowledge of the Municipality and the adverse possession must be open and without any attempt at concealment.

It is not necessary that the possession must be so effective so as to the specific knowledge of the owner.

He further relied upon a decision reported in 2016 (4) ALT 17 in

between Saraswati Bhagat v. Eswaramma @ Lakshmamma (died)

per L.R. and others wherein his lordship held that :- “The plaintiffs had acquired title by prescription and that the title or right of the defendants to the suit schedule 10 property stood extinguished on the determination of the period limited to her for instituting a suit for possession of the property and the law is well settled no one can convey better title than what he has”

17. By relying on the above decisions, the learned counsel for the appellant mentioned in his written arguments as the plaintiff is in possession and enjoyment of the plaint schedule property since 1954 along with her husband till his death and her husband possession is adverse possession against the Government, therefore, she is entitled for the relief of permanent injunction against the defendants.

18.But whereas the contention of the respondent is the plaintiff is not entitled for the relief of permanent injunction against the defendants as her possession is permissible possession and not the adverse possession against the defendants as they are paying taxes to the Government their possession is permissible possession and the learned counsel for the respondents relied upon a decision of the Hon’ble Apex Court in between

L.N.Aswathama and another Vs. P.Prakash dated 21-04-2009

wherein their lordship held that :- “Even assuming that there was a long and continuous possession more than 12 years, that by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi and their lordship further held that it is also well settled law that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually 11 inconsistent and the latter does not begin to operate until the former is renounced.”

He further relied upon a decision of the Hon’ble Apex Court in between R.Hanumaiah and another vs Secretary to Government of

Karnataka Revenue Department and others held on 24-02-2010

wherein their lordship held that :- “Before granting a decree for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for minimum period of thirty years prior to the date of the suit or by establishing adverse possession for a period of more than thirty years and courts cannot, ignore the presumptions available in favour of the government and the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession – authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed in possession and weakness of government’s defence or absence of contest, are not therefore sufficient to decree declaratory suits against the government.”

The above decision is very clear before the passing a decree against the Government the court shall bear in mind about the case of the plaintiff and the records submitted by the plaintiff.

19.Here in the present case on hand, the suit is for grant of permanent 12 injunction against the government but not a declaratory suit. But in that permanent injunction suit the plaintiff contesting that they got adverse possession over the suit schedule property against the defendants. But, admittedly Exs.A1 to A29 shows they are paying tax to the Government as per the demand of the Government. Therefore, as rightly held by the

Prinicpal Junior Civil Judge, Bapatla the possession of the plaintiff and her husband during his life time is only permissive possession and as per

Section 3 of A.P. Land Encroachment Act, 1905 Levy of assessment on lands unauthorizedly occupied.

(1) Any person who shall unauthorizedly occupy any land which is the property of Government shall be liable to pay by way of assessment.

(i) if the land so occupied forms an assessed survey number or part thereof, the full assessment of such number for the whole period of his occupation or a part thereof proportionate to the area occupied, as the case may be, provided that, for special reasons, the Collector or subject to his control the Tahsildar or Deputy Tahsildar may impose the full assessment of such number or any lesser sum irrespective of the are occupied;

(ii) if the land so occupied be unassessed, an assessment on the area occupied calculated for the same period at the rate imposed on lands of a similar quality in the neighbourhood, or at the highest dry or wet rate of the village, as the case may be, or when no such rates exist in such manner as may be prescribed in rules or orders under Section 8;Provided that payment of assessment under this sub section shall not confer any right of occupancy Explanation: For the purposes of this sub section occupation for an incomplete portion of a fasli may be deemed to be occupation for a whole fasli.

(2) In the case of any class of land which is ordinarily granted on lease or licence, the Government may levy, in 13 addition to the assessment imposed under sub section (1), a further sum equivalent to the annual rent or fee which would normally be realizable thereon.

20.Therefore, Section 3 of the Land Encroachment Act, 1905 is clear that a person who unauthorizedly occupied the Government land is liable to pay the assessment fixed by the Government authorities and it furthers lays down it shall not confer any right or occupancy on the encroachment.

Therefore, as per Section 3 the encroacher will not have any right over the encroached property and in this case according to the plaintiff since 1954 her husband and after his demise she is in possession and enjoyment of the suit schedule property by paying assessment to the government, therefore as discussed above the plaintiff is only in permissive possession but not adverse possession against the government as the name of the husband of the plaintiff or plaintiff not mutated in the revenue records as they became the absolute owners of the suit schedule property and no pattadar pass books and title deed were also issued in the name of the plaintiff or her husband. Therefore, the possession of the husband of the plaintiff or the plaintiff is only permissive possession over the suit schedule land as they have been paying the assessment to the Government as provided under Section 3 of A.P. Land Encroachment Act, 1905. But, their possession was never hostile towards the Government and she also not denied the title of the Government. Therefore, as rightly held by the learned Principal Junior Civil Judge, Bapatla, the possession of the plaintiff over the schedule property is not an adverse possession and it is only permissive possession.

21.As far as the jurisdiction of the Civil Court is concerned it was also 14 held in Para 14 of the Judgment in O.S.No.278/2005 that Section 4 of the

A.P. Land Encroachment Act bars the jurisdiction of the Civil Court.

However the perusal of Section 4 of the Act does not disclose any such bar.

But it only with regard to the suits challenging amount of assessment fixed by the Government authorities but not otherwise. Therefore, as discussed above, the plaintiff is not entitled for permanent injunction against true owner of the suit schedule property as her possession is only permissive possession over the suit schedule property. Accordingly, Point No.1 is answered.

22.POINT No.2:-

In view of the findings given in Point No.1 there is no error and illegality in discussing the suit by the Principal Junior Civil Judge, Bapatla.

Therefore, there is no need to interfere with the findings given by the

Principal Junior Civil Judge, Bapatla in its decree and judgment in

O.S.No.278/2005 dated 30-06-2010 on the file of Principal Junior Civil

Judge Court , Bapatla. Accordingly, Point No.2 is answered.

23.POINT No.3:-

IN THE RESULT, the Appeal is dismissed by confirming the decree and Judgment passed by the Principal Junior Civil Judge, Bapatla in

O.S.No.278/2005 dated 30-06-2010. Considering the circumstances of the

case, no costs are awarded in this appeal.

Dictated to the Stenographer Grade-II, transcribed by her, corrected and

pronounced by me in open court, this the 17 th day of August, 2018.

Sd/- K.Nagamani

Addl. Senior Civil Judge, Tenali FAC Prl.Senior Civil Judge, Bapatla.

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APPENDIX OF EVIDENCE

No oral or documentary evidence was adduced on either side.

Sd/- K.Nagamani

A.S.C.J., Tenali

FAC P.S.C.J., Bapatla

Copy to:

The Principal Junior Civil Judge, Bapatla.

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE :: BAPATLA

Present: Smt. K. Nagamani, (FAC, Tenali)

Principal Senior Civil Judge, Bapatla.

Friday, the 17th day of August, 2018.

E.P.No. 97/2015

Between:

Inturi Prasada Rao ... Petitioner/DHr.

And

Chandavolu Venkateswaara Rao...Respondent/JDr.

This E.P. is coming before me on this day and the petition is filed U/Or 21 ,RII(1)of CPC and upon perusing the material on record and stood over till this day, this Court made the following:

DO C K E T O R D E R

Publication filed JDR called absent. No representation. Hence JDR set exparte. Attachment made absolute. Hence E.P is closed.

Pronounced by me in the Open Court, this the 17th day of August, 2018.

Sd/- Smt. K. Nagamani, (FAC, Tenali)

Principal Senior Civil Judge,

Bapatla.

Appendix of Evidence

No oral or documentary evidence adduced on either side.

Sd/- Smt. K. Nagamani, (FAC, Tenali)

Principal Senior Civil Judge,

Bapatla.