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IN THE COURT OF III ADDL. SENIOR CIVIL JUDGE, VISAKHAPATNAM
Present: Sri T.Venkateswarlu, VI Additional Senior Civil Judge, FAC/ III Addl. Senior Civil Judge, Visakhapatnam.
Monday, the 7th day of December, 2016
O.S.No.311/2001
Between:-
1. K.V.Satyanarayana Raju, S/o late K.V.Rama Raju (DIED)
2. K.Narasimha Raju, S/o late K.V.Rama Raju (DIED)
3. K.Bharathi, S/o late Krishnam Raju, 48 yrs, Seethammadhara, Visakhapatnam.
4. K.Suryanarayana Varma, S/o late K.V.Rama Raju, 48 yrs, Sethubandan plot No.40, J.R. Nagar, Visakhapatnam.
(plaintiffs 1 and 2 died and as the right is surviving to the surviving plaintiffs 3 and 4, the suit shall proceed at the instance of surviving plaintiffs 3 and 4 vide I.A.65/2006, dt.17.02.2006) … Plaintiffs And:
1. State of A.P., rep. by the District Collector, Visakhapatnam.
2. Mandal Revenue Officer, Chinagadila, Visakhapatnam.
3. V.Sobha Rani, W/o L.Prem Sagar, Proprietrix of M/s Bhaskara Enterprises, D.No.50-81-48, Seethammapeta, Visakhapatnam.
4. Bharat Petroleum Corporation, rep. by its Senior Divisional Manager, Naval Base PO., Visakhapatnam.
(D4 is added as per orders in IA.1234/2001, dt.23.03.2002) … Defendants
This suit is coming on 30.11.2016 for final hearing before me in the presence of Sri B.A. Rajarao, Smt. M. Jayasree and Sri P.Gangopadhaya,
Advocates for the plaintiffs and of Sri Saka Rajendra Prasad, Government pleader for defendants 1 and 2 and Sri M.K. Sitaramayya, Sri
M.S.Venkatesh and Sri M.K.Srinivas, Advocates for defendants 3 and 4 and having stood over till this day for consideration and this court delivered the following:
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J U D G M E N T
This is a suit for declaration of plaintiffs' title to the suit schedule property and for permanent injunction. The property in dispute is land an extent of Ac.0.71 cents in S.No.2/2 of Endada village of
Visakhapatnam.
02.The plaint averments, in brief, are that plaintiffs' father Sri
K.V. Rama Raju purchased the land, an extent of Ac.7.27 cents from P.
Satyarao Patrudu and P. Nookaratnam under a registered sale deed dated 15.10.1967. The said Satyarao Patrudu and Nookaratnam purchased the said extent from one Mangina Suramma under the registered sale deed
dated 16.05.1962. This property is situated in Endada, the earstwhile
Zamindar village of Vijayanagaram estate. The village was taken over by the Government under Estate Abolition Act, 1948. There was a mango tope in the said land since times immemorial. Plaintiffs succeeded to the property from their father and they have been in possession and enjoyment of the said lands. While so, the Mandal Revenue Officer issued notice under Section 7 of Land Encroachment Act, 1905, alleging that plaintiffs encroached into Ac.0.71 cents of land in S.No.2/2 of Endada village. First plaintiff gave a reply that it was an agricultural land and it was purchased by their father in 1967 and it was not the Government land. However, without considering the said reply the Mandal Revenue
Officer passed orders for eviction. First plaintiff filed appeal before Revenue
Divisional Officer, but he was unsuccessful. He preferred revision before the Joint Collector. During the pendency of the revision before the Joint
Collector, the Mandal Revenue Officer tried to destroy the Mango trees to erase the evidence of cultivation. Then 1st plaintiff filed Writ Petition
No.8533/2000 and the Hon'ble High Court granted stay of orders passed by the Revenue Divisional Officer on 26.06.1999 and directed the Joint
Collector to dispose of the petition. Thus, plaintiffs have been in 3 continuous possession of the property. Later plaintiffs filed petition before
Settlement Officer and Joint Collector for ryotwari patta under Section 11(a) of Estate Abolition Act. The Joint Collector rejected the petition at the threshold and rejected I.A.No.6/2000, dated 24.02.2001, which was filed to condone the delay in filing the petition. It is perverse, arbitrary and illegal. The Mandal Revenue Officer, Chinagadili filed counter in
I.A.No.6/2000, contending that it was the Government property. Thus, plaintiffs got issued notice under Section 80 CPC, alleging that it is the patta land of the plaintiffs and the entries in revenue records should be corrected suitably.
03.Plaintiffs specifically pleaded that though lesser extents have been recorded in the sale deeds, the total property is Ac.7.60 cents and it is a compact block. As per the sale deed, the land in S.No.3 is an extent of
Ac.1.42 cents and as per the revenue record it is an extent of Ac.1.04 cents only, whereas on the ground the actual extent available is Ac.1.75 cents.
However, the Estate administration conducted survey on rough and ready method and thus they short recorded the extents. It is pleaded that as per the survey record, the western boundary of S.No.2/2 is an assessed waste dry, which was actually 'Kothacheruvu' on ground. The western boundary for S.No.3 as per the sale deed dt.15.10.1967 is Kotha Cheruvu. Thus the land in S.No.2/2 is not the Government land and it is part of S.No.3 and it is the part of compact block of Ac.7.60 cents, covered by S.Nos.3,4 and 7/1. It is pleaded that the land was wrongly measured and given S.No.2/2 instead of including the same in S.No.3. It is pleaded that in 1962 document, the western boundary of S.No.3 is shown as road. According to the plaintiffs, there was a big bund on the boundary of S.No.2/1 and the people used the same as a way to go to hill and thus in the sale deed, the same is mentioned as road. In due course of time, due to the stagnation of water on the western side of this bund, a tank was formed, which was 4 called as Kotha Cheruvu. Thus this tank was formed in S.No.2/1.
However, at a later point of time, the said water tank disappeared. Thus, there was some discrepancy in description of the properties in the sale deeds. It is pleaded that when the entire land of S.No.2 is the Government land, classified as 'assessed waste dry', there was no need to sub-divide the same as S.Nos.2/2 for an extent of Ac.0.71 cents. It is pleaded that the predecessors-in-title of the suit schedule property had been in occupation of the land 80 years prior to taking over the estate by the Government. It was a ryoti land during the estate administration and there was a Mango tope. The predecessors of the plaintiffs were not evicted under Section 3(d) of Estate Abolition Act and there was no threat from anybody for the plaintiffs' title and possession over the property and they were not evicted under due process of law. Hence, the suit for declaration of title and injunction.
04.Second defendant filed written statement. Defendants 1 and 4 adopted the same. They pleaded that Endada village is the erstwhile
Zamindar village of Vizianagaram Zamin estate and under Estate Abolition
Act, 1948, the estate was taken over by the Government and the settlement rates were introduced w.e.f. 01.07.1954. S.No.2/2 of Endada village was originally classified as 'gayalu' in the settlement records and the land was free from encroachments till 1996. Thus the said land vested with the Government. Later during the inspections of the Government lands, the Mandal Revenue Officer noticed that one K.V.S. Raju encroached into S.No.2/2, which was classified as 'assessed waste dry'.
After he was given notice under Section 7 and after receiving reply and after due enquiry the Mandal Revenue Officer directed the said K.V.S. Raju to vacate the said land. He was evicted and possession was taken on 11.07.1997. He filed appeal and the Revenue Divisional Officer rejected the same on 26.06.1999. The said K.V.S. Raju preferred 2nd appeal before the 5
Collector and the same was also dismissed. Later plaintiffs filed
W.P.No.8533/2008 and the Hon'ble High Court on 09.05.2000 gave a direction to the District Collector to dispose of the petition expeditiously.
They pleaded that since the plaintiffs were evicted long back to the date of filing of the revision petition, the orders of Hon'ble High Court became not executable. Later the District Collector on 03.03.2001 disposed the appeal.
They also pleaded that the application filed under Section 11(a) of Inams
Abolition Act for the land covered by S.No.2/2 of Endada village was dismissed as the plaintiffs failed to explain the delay. It is thus pleaded that the land is vested with the Government and the same was handed over to Bharat Petroleum Company Limited on 10.07.1999 vide RC.
No.2364/99 /E2, dated 08.07.1999. It is alleged that plaintiffs' father purchased the private land abutting the land in S.No.2/2 of Endada village and encroached into the Government land. Thus they sought for dismissal of the suit.
05.Third defendant filed separate written statement, contending that the suit property is the Government land and the plaintiffs were duly evicted and the Government allotted the land in favour of Bharat
Petroleum Corporation Limited and the possession was delivered to Bharat
Petroleum Corporation Limited and hence the suit is not maintainable.
She pleaded that she is the Proprietress of M/S. Bhaskara Enterprises and engaged in the business of Liquid Petrol Gas distribution and that she applied for purchase of suit land for the construction of L.P. Gas godown- cum-show room and the Mandal Revenue Officer, during the process of submitting alienation proposals, noticed the encroachment and plaintiffs were duly evicted.
06.With the above pleadings and after hearing both sides, this
Court settled the following issues for trial :-
1. Whether the plaintiff has got title to the plaint schedule property ?
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2. Whether the plaintiff is entitled for declaration and injunction to the plaint schedule property ?
3. To what relief ?
07.In the trial, 4th plaintiff is examined as P.W.1. One Ch.
Sankara Rao is examined as P.W.2. Exs.A1 to A24 are marked for plaintiffs. During the cross-examination of D.W.1, the notice issued under
Sec.7 of Land Encroachment Act, 1905 was confronted to D.W.1 and by over sight, the said notice was again marked as Ex.A23. Hence, this notice may be read as Ex.A23(a). One T. Venugopal, incharge Tahsildar is examined as D.W.1. One B. Ramesh, the Territory Manager of D4 company is examined as D.W.2. Exs.B1 to B5 are marked for the defendants.
08.Heard both the sides. The learned counsel for the plaintiffs would argue that plaintiffs' father purchased the land in S.No. 3,4 and 7, whereas in the records it was wrongly recorded as S.No.2/2. The learned counsel pointed out that two commissioners were appointed in this suit and the second commissioner surveyed the land with sophisticated survey method, known as 'Autocad Survey' and it is confirmed that the disputed land of Ac.0.71 cents is the part of land purchased by plaintiffs' father in 1967. The learned counsel argued that defendants did not file objections for the reports and the two commissioner reports form part of the record and can be relied on. The learned counsel would argue that the first commissioner noted the existence of mango tope, aged around 60 years, which confirms the plaintiffs' possession of the land for more than 60 years. The learned counsel would argue that since there is a mango garden, in the survey which was taken up after the taking over the
Vijayanagaram Estate, the suit land was given S.No.2/2. The learned counsel would argue that the proceedings under the Land Encroachment
Act, 1905 or Estate Abolition Act are not final and for declaration of title civil court's jurisdiction is always open. The learned counsel would argue that there is no evidence for the allegation that Government handed over 7 the land to Bharat Petroleum Corporation Limited. The learned counsel would argue that when the plaintiffs specifically pleaded that the survey was incorrect and basing on the rough method of survey the extents were short recorded, it is for the Government to prove otherwise. The learned counsel referred to the admission of plaintiffs' ownership over the adjacent lands. The learned counsel would argue that from the documents, marked as Ex.B1 to B4, it is clear that there is no chance of delivery of land to
Bharat Petroleum Corporation Limited and the same is confirmed with the 2nd commissioner's report. The learned counsel would clarify that the alleged date of delivery of possession of 11.07.1997 falls within the stay period under Ex.B2. The learned counsel would also submit that plaintiffs, through the retired VAO(P.W.2), proved the payment of land revenue to the land under Ex.A3 to A14, the tax receipts. According to the learned counsel, it is a settled law that boundaries prevail over the extent or numbers of the land and hence, plaintiffs are entitled to the relief. The learned counsel for the plaintiffs relied on the following judgments.
1. Government of Andhra Pradesh Vs. Bandi Ventatarama and others (AIR 1982 S C 1081).
2. State of Tamil Nadu Vs. Ramalinga Samigal Madam (AIR 1986 SC 794).
3. Kosuru Venkata Krishnaiah and others Vs. Molakala Sidda Reddy and others (1990 (1) ALT (D.B.).
4. Alla Basavapunnareddy Vs. Kalaga Krishnayya and others (1965
An.W.R (II) 366).
5. Life Insurance Corporation of India Vs. M/S. India Automobiles and Co. and others( AIR 1991 SC 884)
6. Sultan-ul-Uloom Education Society Vs. Sri Mir Shahmat Ali Khan (2001 (1) ALT 222).
09.On the other hand, the learned Government Pleader would argue that plaintiffs occupied the Government land in 1996 and the same was taken over under due process of law and alloted to Bharat Petroleum 8
Corporation Limited(D4). According to the learned Government Pleader plaintiffs paid only encroachment fee and not the land revenue.
10.The learned counsel for D3 and D4 argued that the suit is barred by time; that there are other heirs of Late Rama Raju, the orginal owner of the property and hence, only the plaintiffs 1 to 4 can not maintain a suit for declaration of title; that the property was delivered to
D4 and D4 has been in possession of the property and thus sought for dismissal of suit. The learned counsel relied on the following judgments:-
1) Khatri Hotels Private Limited & Anr. Vs. Union of India & Anr.
(AIR 2011 SC 3590)
2) Manapragada Swarnapathi Vs. Krovvidi Suryaprakasa Rao.
(AIR 1934 Madras 293).
11.ISSUES NO.1 & 2:-
Before going into the merits of the dispute, it may be
necessary to know about the legal position with regard to the maintainability of civil suit after suffering orders under A.P. Land
Encroachment Act, 1905 and the Estates Abolition Act, 1948. Admittedly the Mandal Revenue Officer, Visakhapatnam Rural issued notice under
Sec.7 of A.P. Land Encroachment Act, 1905. It is Ex.A23. It was issued on 19.03.1997. Under Ex.A15, the Mandal Revenue Officer passed eviction order under Sec.6 of the Act on 02.05.1997. The appeal, preferred by first plaintiff, under Sec.10 of the Act was dismissed under Ex.A16 on 26.06.1999. The revision, preferred by first plaintiff, under Sec.10 of the
Act, was met with same fate under Ex.B1 on 03.03.2001. Plaintiffs then tried their luck under Estates Abolition Act, 1948 and moved an application under Sec.11(a) of the Act for ryotwari patta and the same was dismissed as time barred. Ex.A19 is copy of order dated 24.02.2001. Now, plaintiffs approached the Civil Court with the present suit.
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11.The authorities, referred to hereunder say that when there is a bona fide claim, Government cannot resort to summary proceedings under
A.P. Land Encroachment Act, 1905. In Govt. of Andhra Pradesh Vs.
Thummala Krishna Rao1, the Apex Court held that it is for the government to file suit and to prove its title to the property in dispute. It was held, “7. It seems to us clear from these provisions that the summary remedy for eviction which is provided for by section 6 of the Act can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is "the property of Government". In regard to properly described in sub- sections (I) and (2) of section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in section 6. A person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is in unauthorised occupation of property which is declared by section 2 to be the property of the
Government and, therefore, it is in public interest to evict him expeditiously which can only be done by resorting to the summary remedy provided by the Act. But section 6 (1) which confers the power of summary eviction on the Government limits that power to cases in which a person is in unauthorised occupation of a land "for which he is liable to pay assessment under section 3''. Section 3, in turn, refers to unauthorised occupation of any land "which is the property of Government" If there is a bona fide dispute regarding the title of the Government to any property the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by section 6 for evicting the person who is in possession of the property under a bona fide claim or title. In the instant case, there is unquestionably a genuine dispute between the State
Government and the respondents as to whether the three plots of land were the subject matter of acquisition proceedings taken by the then Government of Hyderabad and whether the Osmania
1.AIR 1982 SC 1081.
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University for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the properly more than twelve years
before the date of the suit and the University was not in
possession of the property at any time within that period. Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed by section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process of law for evicting the respondents.
8. The view of the Division Bench that the summary remedy provided for by section 6 cannot be resorted to unless the alleged encroachment is of "a very recent origin", cannot be stretched too far. That was also the view taken by the learned single Judge him self in another case which is reported in Meherunnissa Begum v.
State of A.P. which was affirmed by a Division Bench.(2) It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. Facts which raise a bond fide dispute of title between the Government and the occupant must be adjudicated upon by the ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in the sense that a person who is in occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law.
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9. The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary inquiry contemplated by sections 6 and 7 of the Act. The long possession of the respondents and their predecessors-in-title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddio from whom the respondents claim to have purchased it. The
question as to whether the title to the property came to be
vested in the Government as a result of acquisition and the
further question whether the Nawab encroached upon that
property thereafter and perfected his title by adverse
possession must be decided in a properly constituted suit.
May be, that the Government may succeed in establishing its
title to the property but, until that is done, the respondents
cannot be evicted summarily.”
12.In G. Satyanarayana Vs. Government of Andhra Pradesh 2, their Lordship has done a thorough research into the entire subject about the cases under Land Encroachment Act, 1905 and evidentiary value of entries in several revenue records with regard to right of individuals vis-a- vis the Government. I am herewith extracting the final orders recorded in three of the writ petitions among the batch.
“W.P.Nos.25727 and 26106 of 2013: The petitioners have claimed ownership of the land in respect of a common property based on a compromise decree passed in O.S.No.1420/1983. The petitioners have traced their title through their grand mother late
Sultan Khatoon who has purchased an extent of 23445 sq. mtrs.
of land under registered sale deed 932 of 1336 Fasli (1926). In
O.S.No.1420/1983, compromise decree dated 2-12-1983, was
obtained by the petitioners whereunder the property was partitioned between them. The proceedings under the 1905 Act were initiated only based on the entry in the TSLR describing the land as G-Abadi. In the counter-affidavit, the respondents have
2.2014 (3) ALT 473.
12 not denied the existence of registered sale deed under which the petitioners grand mother has purchased the property as far back as the year 1926. They have also not disputed the plea of the petitioners that for almost 90 years, their family has been in possession of the property. The long standing uninterrupted possession of the petitioners family raises a reasonable presumption that the property in question is a private property and the same does not belong to the Government. Such a presumption can be displaced by the Government only in a properly constituted civil proceeding. On these undisputed facts of the case, the ratio in the Judgment of the Supreme Court in
Tummala Krishna Rao (1-supra) squarely applies. The respondents cannot therefore resort to summary proceedings of eviction under the provisions of the 1905 Act as there is a bona fide dispute relating to ownership of the land. Following the dicta laid down in Tummala Krishna Rao (1-supra) and the finding rendered by this Court on Point No.4, the only option left with the respondents is to file a civil suit. The impugned proceedings are
therefore liable to be quashed with liberty to the respondents
to approach the competent Civil Court.
W.P.No.27589/2013: From the uncontroverted facts recorded in the earlier part of the judgment, it is evident that the only ground on which eviction proceedings under the 1905 Act have been issued is that the land is recorded as G-Abadi in the TSLR. The respondents have not denied the genesis of the petitioners title.
There are as many as four registered sale transactions commencing from 17-6-1959. The property was also the subject matter of O.S.No.555/1985 wherein a decree was passed on 26- 9-1995 in favour of Satyamma and her husband, the predecessors-in-title of the petitioners. The long standing possession of the predecessors-in-title of the petitioners, at least from the year 1959, is not disputed by the respondents. In view of the finding on Point No.4, the respondents cannot initiate eviction proceedings under the provisions of 1905 Act only based on the entry in the TSLR describing the land as G-Abadi. The impugned
proceedings are liable to be quashed, however, with liberty to
the respondents to approach the competent Civil Court for
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declaration of title of the Government over the land in
question.”
13.In State Of A.P. vs B. Venkatamma And Ors.3, about the civil court's jurisdiction, the Hon'ble High Court has observed, “36. The learned Government Pleader appearing for the State further submits that when the proceedings under the Land
Encroachment Act have become final, it is not open for the plaintiffs to agitate the same question and file a Civil Suit and therefore, the Suit is not maintainable under Section 14 of the
Land Encroachment Act.
37. The Land Encroachment Act provides the measures, seeking un-authorised occupation of lands, which are the property of the
Government. Though the Government made a claim that it is the
Government land and the plaintiffs have illegally encroached into the said land, but they could not substantiate their claim by adducing any evidence to show that the said land is the
Government land. On the other hand, the plaintiffs are able to produce oral and documentary evidence to show their continuous possession from 1940 onwards and admittedly, the land in question is in a jagir village and the said survey number also covered within the jagir village and if that be the case, whoever is in cultivation as on the date of Jagir abolition, they are deemed to be the pattedars and their names shall be entered in the pattedar column. Therefore, I am of the opinion that the
Government failed to establish that it is a Government property.
Merely because a notice under Section 7 of the Act issued by the
Government has become final and admittedly the consequential order made under Section 6 of the said Act was challenged before the Appellate Authority, in which stay was also granted and pending the stay order, the Government itself filed a caveat petition and there is every justification on the part of the plaintiffs to apprehend that the subordinate officer cannot decide the issue impartially and however the same is not barred as held by the Supreme Court as the Government cannot evict the persons summarily who are having long standing possession and disputing the ownership of the Government and therefore, the suit is maintainable and Section 14 of the Andhra Pradesh Land
3. 2004 (5) ALD 605 14
Encroachment Act has no application in respect of the proceedings effecting the title to the land of a person. The issue decided by the authorities in respect of the notice issued under
Section 7 or the order under Section 6 is not directly or substantially the same and the nature of the present suit is for the declaration of title and injunction and whereas, the nature of the proceedings under the Land Encroachment Act were only under the presumption that it was a Government land, merely because there is an entry in the pattedar column as Bandikana
Sarkari or Poramboke.
38. The Division Bench of this Court in the case of Sajana
Granites, Madras and Anr. v. Manduva Srinivas Rao and Ors., (DB), held that Civil Court has got jurisdiction to decide the issue of title in spite of the earlier decision of Settlement Officer granting patta under Section 11 of Estes Abolition Act. If that be so, there is no patta granted in the instant case to any other person and there is no evidence to show that it is a Government land. Even in respect of the Government lands, whoever was in continuous possession from 1940 onwards, they are entitled for grant of ryotwari patta. Insofar as the non-khalsa villages i.e.,
Jagir villages is concerned, there is no dispute that the cultivators are entitled for the pattedari rights and therefore, I am of the opinion that the suit filed by the plaintiffs is maintainable.”
14.From the above authorities it is now clear that Government cannot summarily evict the encroachers, where there is a bonafide title dispute and in the present case, Government cannot say that there is no bonafide dispute, more particularly, when the plaintiffs and their predecessors-in-title have been in possession of the property for the last 65 years. Apart from that the highlighted portions of the above judgments further indicates that it is for the Government to establish its title before the Civil Court. However, in our case, Government has successfully driven the plaintiffs to Civil Court. From the above authorities, it is further clear that the long standing uninterrupted possession raises a reasonable 15 presumption that the property in question is a private property and the same does not belong to the Government. In view of this legal position, despite the fact that plaintiffs have come to Court for declaration their title, undoubtedly, the burden is heavy on the Government to prove its title.
15.With regard to provisions of A.P.(A.A.) Estates (Abolition and
Coversion into Ryotwari) Act, 1948, we have the judgment of our Hon'ble
High Court in Kosuru Venkata Krishnaiah and others Vs. Molakala
Sidda Reddy and others4. It was held, “11. In the case on hand it has already been noticed that the
Andhra Pradesh Act itself does not expressly exclude the jurisdiction of civil court. In such a case, the scope of the enquiry would be to examine the remedies provided under the scheme of the Act to ascertain the intendment of the Legislature as to whether the jurisdiction of the civil court is barred by necessary implication. If the statute creates special right or liability and provides for the determination of that right or liability and further lays down that all questions about such right and liability shall be determined by the tribunal constituted under the Act and if remedies normally associated with actions in civil suits are prescribed by the said statute, it can be said that the jurisdiction of the civil court in respect of those matters, is excluded impliedly. It may not be necessary for us to examine the provisions of the Act in view of the fact that the Supreme Court has examined the provisions of the Tamil Nadu Act and laid down that the remedy provided by the Civil Court on the basis of long possession cannot be provided by the tribunal constituted under the Act. The Andhra Pradesh Act is in pari materia with the Tamil Nadu Act. Thus it fallows that the scheme of the Act leaves no room to doubt that in respect of an order passed by the
Settlement Officer under Section 11 of the Act, the jurisdiction of the civil court is not impliedly barred. We are, therefore, of the opinion that the decision of the Division Bench of this Court in
Jaya Syamala Rao Vs. Radha Krishnaswamy ( 1 supra ) laying down that jurisdiction of civil court is barred, is no more good law in view of the decision of Supreme Court in State of T.N. Vs.
4.1990 (1) ALT 163 (D.B.) 16
Ramalinga ( 2 supra ). In this view of the matter, we agree with the observations of the learned single judge in K. Ranga Reddy
Vs. M. Venkatrami Reddi ( 3 supra ) and hold that the order passed by the authorities under Section 11 of the Act is not final and conclusive and that the jurisdiction of the civil court, to examine the issue of the nature of the land, which is incidentally determined by the Tribunal, is not ousted either expressly or impliedly and; therefore, the civil court has jurisdiction to entertain the suit and to go into the question of the nature of the land and decide the same on the material placed before it.”
16.Thus from the above authority, it is clear that dismissal of the application under Sec.11(a) is not a bar to sue for title. Plaintiffs' case in substance is that the suit land, an extent of Ac.0.71 cents, is the part of land purchased under Ex.A2 and hence, it is not the Government land and the allegation of encroachment is false and there is old mango tope, aged more than 65 years. The defense is that Government took over Endada village, the earstwhile Jamindar village under Vijayanagaram Zamin estate on 01.07.1949 and the settlement rates were introduced with effect from 01.07.1954 and the land in S.No.2/2 was classified as 'gayalu' in settlement records and there were no encroachments till 1996 and the
Mandal Revenue Officer, noticed such encroachment only in 1997. It is pleaded that plaintiffs father purchased the private land abutting the
Government land in S.No.2/2 and encroached into the Government land.
As said above, plaintiffs were not successful in the proceedings under
Land Encroachment Act, 1905 and Estate Abolition Act, 1948. Ex.A19 is the order passed under Section 11(a) of Estate Abolition Act, 1948. The said order was passed on 24.02.2001. Ex.B1 is the copy of order passed under Section 10 of A.P. Land Encroachment Act, 1905 on 03.03.2001.
Now let us look into the findings recorded by the very same officer under
Ex.B1 and Ex.A19. The operative portion of the order in Ex.B1 is as follows:- 17 “The revision filed by the petitioner is based on misrepresentation of facts. The petition is filed with a motive to obtain favourable orders by way of regularizing the encroachment or by obtaining a ryotwari patta from the Settlement Officer as the case may be. For the reasons mentioned above, I find no reason to interfere with the orders of the Mandal Revenue Officer,
Visakhapatnam (Rural) and the orders of the Revenue Divisional
Officer, Vishakhapatnam (Rural) Mandal as the petitioner is ineligible encroacher. Accordingly, the revision petition is dismissed.”
The result portion of Ex.A19 reads as follows:- “2. The documents filed by the claimants in support of their claim does not establish any prima facie case to consider the land as ryotwari land or the claimants as ryots prior to the crucial date as
they have purchased Government land along with some other
private lands. Therefore, the petitioners have no right to claim the lands.”
17.From above two orders, it is clear that there is any amount of inconsistency in the stand of Government. Once the Government accepts the plaintiffs' case that they purchased the suit land, it had to accept that plaintiffs have been in possession at least from date of Ex.A2, i.e., 15.10.1967. In such case, the very contention in the written statement that there were no encroachments till 1996 and the Mandal Revenue
Officer noticed such encroachment in 1997 is bound to fail.
18.Admitted fact is that plaintiffs' father purchased Ac.7.27 cents under Ex.2 sale deed dated 15.10.1967. As per sale deed this land is situated in S.No.3, 4 and 7 of Endada village. Plaintiffs claimed that their father in fact purchased an extent of Ac.7.60 cents as per the boundaries and it includes an extent of Ac.0.71 cents of S.No.2/2. Now, as per the findings under Ex.19, the Government is admitting the said contention that land an extent of Ac.0.71 cents is part of the land purchased by 18 plaintiffs' father under Ex.A2. In other words, it is contended that part of the land purchased under Ex.A2 is the Government land. However, contrary to the said fact, Government now, in this suit, pleaded that having purchased abutting land under Ex.A2, plaintiffs occupied the
Government's land, situated in S.No.2/2, which is classified as 'assessed waste dry'.
19.The Mandal Revenue Officer issued the notice under Sec.7 of
Land Encroachment Act, 1905. It is marked as Ex.A23. It is dated 25.03.1997. It is the specific case of the Government that there were no encroachments till 1996. It is their definite case that Government got the said land in the settlement operations. In Ex.A23, in Column No.6, the nature of encroachment is shown as mango garden'(mamidi thota). It is not the case of the Government that the garden is a tender age garden.
Admittedly, this Court appointed one M. Rajani, Advodate as a commissioner as per orders in I.A.No.628/2001, dated 25.04.2001. The purpose of commission was to note the number and the age of the fruit bearing trees. The learned commissioner visited the suit land on 25.05.2001. The learned commissioner, in her report, noted that there were 13 mango trees; that six of them were aged above 65 years; that four of them were aged 50 years and; that three of them were aged 40 to 50 years. She further noted that there were 69 teakwood trees aged below 15 years. She also noted the existence of two drumsticks trees, five bamboo trees, four cashew nut trees, two Jack fruit trees, one Neem tree, one pomegranate tree and one Sapota tree. Defendants did not dispute the physical features of land and they did not file any objections. If we reckon back the period of 65 years from 2001, the estimated approximate age of the mango trees, it goes back to 1936. Hence, from this factual situation, the allegation that plaintiffs occupied the land in 1997 is nothing but false.
19
20.Plaintiffs, by conducting survey over the suit land, wanted to prove that the land in possession of the plaintiffs is the land purchased under Ex.A2 in 1967. For this purpose, they sought for appointment of a commissioner in I.A.No.64/2006. One Sri S.V. Ramana, Advocate was appointed for the said purpose. The commissioner was given permission to take the assistance from a licensed surveyor. Thus the learned commissioner engaged the services of one P. Krishna Prasad. The survey was conducted on 24.09.2011. Despite an advance notice, none of the
Government officials attended this survey. The reason may be obvious that the Government is sure about the ensuing result. The Government may be conscious of its stand, which was reflected in Ex.A19 that plaintiffs father had purchased the Government land along with private land. The finding of the learned commissioner is that the land, an extent of Ac.7.55 cents is found within boundaries recorded in the sale deed dated15.10.1967. The next crucial finding is that an extent of Ac.0.66 cents in S.No.2/2 is found with in the said boundaries recorded under the above sale deed. The surveyor gave his report, sketch etc., The learned counsel also filed several photos. These findings are not disputed by the Government. Defendants 1 & 2 did not file objections. Though defendants 3 & 4 stated to have filed their objections, they did not take pains to summon the Advocate-
Commissioner and to cross-examine him on these findings. These two reports, given by two learned Advocate-Commissioners, form part of the record. They need not be proved by examination of the leaned commissioners. There cannot be any doubt for the said proposition. In this connection, the judgment of Hon'ble High Court of Karnataka may be relevant. In Parappa And Ors. Vs. Bhimappa And Anr5, it was observed, “13. A reading of the aforesaid provision makes it clear that the report of the Commissioner once submitted to the Court, shall be evidence in the suit and shall form part of the record. It is not
5.ILR 2008 KAR 1840 20 necessary that the said Commissioner's report is to be marked as an exhibit in the case. Similarly, it is not necessary that the said
Commissioner is to be examined, to prove the contents of the said report. It is up to the choice of the party to examine the commissioner in respect of the matters referred to him or mentioned in his report. The examination referred to in the aforesaid provision is to be understood in the context of the word examination referred to in Chapter 10 of the Evidence Act. The examination includes examination in chief, cross examination and re-examination. Therefore, if a party to the proceedings has no grievance whatsoever against the report of the Commissioner the question of that party examining the Commissioner would not arise. However, if either of the parties do not accept the correctness of the Commissioner's report, it is open for them to file their written objections opposing the said Commissioner's report. In order to substantiate the said objections and to request the Court not to act on the Commissioner's report, with the permission of the Court, they have been given an opportunity to examine the Commissioner personally in the open Court touching any of the matters referred to by him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. Normally, when objection is filed to the
Commissioner's report contending that the said report is incorrect, to substantiate the said stand it is necessary for the party to examine the Commissioner personally in Court and cross examine him on those aspects in the light of the objections taken.
If the party is successful in discrediting the entire report or a portion of the report in respect of which he has grievance, the
Court in its discretion may reject the report of the Commissioner.
However, if that cross examination do not substantiate the objection taken by the party, it is open to the Court to accept and act on the said Commissioner's report. Only when the
Commissioner is examined, then the Court has to consider the report along with the oral evidence in order to appreciate the probative value of the said report and on such appreciation, may accept the report or may reject the report. If the report is rejected in total, it is open to the parties to have one more Commissioner appointed for the very same purpose. But for admission of the said Commissioner's report as evidence, it is not necessary that 21 the Commissioner should enter the witness box, or he should produce the said report before the Court and the Court has to mark it as an exhibit in the case. In other words, without
marking the Commissioner's report as exhibit, without the
Commissioner being examined in the case, the said
Commissioner's report can be taken as evidence in the case.
Merely because the said piece of evidence is taken on record it does not follow that, all that is stated there is true or proved.
Proof and relevancy is different from admissibility of the evidence.”
21.Thus from the evidence on record, which includes the two commission reports, the contents of Ex.A23(a), the notice issued under
Sec.7 of Land Encroachment Act, 1905, there cannot be any semblance of doubt to say that the suit schedule land has been in possession of plaintiffs and their predecessors-in-interest way back from 1936. It is further proved that suit land, an extent of Ac.0.71 cents, is the part and pacel of land purchased under Ex.A2, the sale deed. The Joint Collector and Special Officer in his orders under Ex.A19 has also recorded this finding.
22.It is the specific case of the defendants that suit property was the part of estate property and under settlement operations under Estate
Abolition Act, 1948, the rates were introduced with effect from 01.07.1954 and the suit land was classified as 'gayalu'. In fact defendants did not file any document to prove this fact. Settlement operations comprises several important enquiries and preparation of important records. It starts with
Perambulation Report, where the Settlement authorities perambulate the areas concerned, study the local conditions and peculiarities and they would suggest means and methods of solving the problem. A notification follows under Sec.22 of the Act, which informs the public the principles of settlement operations, including the rates of assessment. Then the Survey
Officers take up survey and prepare survey and land register(SLR), 22 showing the details of lands and they also prepare the classification register with following details. 1) Area List; 2) Khandam sketch; 3)
Correlation statement; 4) A copy of field measurement book; 5) Rough village maps; 6) A statement of Encroachments, if any and; 7) Estate
Accounts. Basing on this information the settlement office finalise the classification and they prepare 1) A statement showing the occupied and un-occupied lands; 2) Statement of Irrigation sources and; 3) Wet Ayacut statement and other connected statements; including final check memo, pertaining to discrepancies between the estate and survey accounts.
Government is the custodian of these records, which would clinchingly prove the status of any land under the estate administration. If the
Government's contention is true that it acquired the land under settlement operations, free of encroachments, it could prove the same with the above referred information. Another important document is A-Register, which is also called Diglot, which gives the complete picture of the land, immediately prior to settlement operations. Government has not filed this document.
23.According to the learned Tahsildar(D.W.1), he has not seen the
Diglot with regard to the suit land. This witness denied the suggestion that land in S.No.2/1 only is the Government land and land in S.No.2/2 is the private land. When the entire land in S.No.2 is the Government land and classified as 'gayalu', no acceptable reason is given for the sub-division of the land. In absence of any such reason, when the Government withheld the concerned record, pertaining to the period before the introduction of settlement rates or subsequent to the said period, the only inference should be that as this piece of land has been under cultivation with mango tope, in the settlement operations, this land was sub-divided as S.No.2/2.
These facts go to show that Government, which is in the custody of this important piece of evidence, purposefully withheld it and it gives rise to 23 presumption that had the Government filed these documents, they would have proven the plaintiffs' title to the property. The Apex Court in Union
Of India vs Ibrahim Uddin & Anr 6 “16. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot loose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance.
Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court’s order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary.”
24.In the case on hand, one of contentions of Government is that the land has been classified as 'gayalu' in RSR and hence, it is the
Government's land. We can also find the pleading that the land is classified as 'assessed waste dry'(AWD). The Mandal Revenue Officer, Sri T.
Venugopal (D.W.1) deposed that the land classification 'AWD' and 'gayalu' is one and the same. In my humble opinion, he may not be correct in this respect. Under the ryotwari system waste are classified into (a) assessed,
(b) unassessed and (c) poramboke. Assessed waste are cultivated lands
6.(2012) 8 SCC 148.
24 which have been left uncultivated, lands relinquished by ryots and, lands bought in by government in revenue sales. Unassessed waste are lands to which no classification or assessment has been assigned because they are considered unfit for cultivation. Poramboke denote lands set apart for public or communal purposes. They are also unassessed. Hence, 'AWD' and 'gayalu' are not the same classification. They are different. It is not understood as to how the Government could classify the mango garden as 'AWD'. In G. Satyanarayana's case(cited supra), with regard to classifications 'poramboke' and 'waste lands', 'assessed' or 'unassessed', his Lordship observed, “(vii) While there is a presumption that all poramboke and communal lands vest in the Government, no such presumption arises in case of waste lands, assessed or unassessed. In deciding the claim of persons on these lands, isolated entries in documents such as RSR are not conclusive. All other relevant revenue record shall be considered while deciding this dispute.”
25.It may be relevant at this stage that plaintiffs filed Ex.A3 to
A14, the land revenue receipts, contending that they paid land revenue to the Government. Plaintiffs examined P.W.2, the retired VAO and he deposed the authenticity of these documents. Defendants did not choose to cross-examine this witness. It amounts to admission of the fact.
26.It is a fact that when the plaintiffs pleaded that during the time of estate administration, the land survey was not properly conducted and short recorded the extents, defendants did not dispute those pleadings in their written statements.
27.Fourth plaintiff(P.W.1), in his evidence, has asserted that their father purchased Ac.7.60 cents within certain boundaries recorded in the sale deed(Ex.A2) and the Government wrongly recorded the land as 'gayalu', which indicates that the land is unfit for cultivation and in fact 25 there are mango trees. The fact that the total land an extent of Ac.7.60 cents, which includes the suit land of Ac.0.71 cents, has been identified by commissioner within the boundaries of Ex.A2 sale deed is not disputed and this witness is not cross-examined on the said point. We cannot find even a single suggestion about the existing mango garden in the suit land.
In Sultan-ul-Uloom Education Society Vs. Sri Mir Shahmat Ali Khan 7 , it was held, “9. It is settled law that boundaries would prevail over extents.
Either the number covering the land or the extent of the land given in the document is only criterion. When there is difference between them and the boundaries mentioned in documents the description of the property as given in the schedule with reference to the boundaries will always prevail than the number covering the property or the extent of the property given in the document.
It seems the western portion of Ac.6.00 has also been included subsequently in the agreement of sale. Since there is no written agreement of sale between the parties it is expedient in the interest of justice to consider the letter correspondence between the petitioner society and the trustees some of which are now sought to be filed on the side of the petitioner and some on the side of the respondent. While exercising revisional jurisdiction, it is not expected of to reappraise the entire evidence perusing all the documents which are now sought to be filed by means of
additional evidence on either side, since this Court is expected to
see as to whether the Court below has exercised its jurisdiction properly and whether the impugned order suffers from any illegality or material irregularity or whether it would occasion any failure of justice. As afore discussed the very premise on which the lower appellate Court proceeded is not correct since the respondent is seeking injunction on the basis of his possession.”
28.In Alla Basavapunnareddy Vs. Kalaga Krishnayya and others8, the Hon'ble High Court observed, “7. Sri Sastry argued that there was no difference; and that the rule equally applied to the sale certificates issued by the Court
7.2001 (1) ALT 222.
8.AIR 1966 AP 260.
26 and he cited a Bench decision of the Madras High Court;
Subbayya Chakilivan v. Muttiah Goundan, 78 Ind Cas 414 : (AIR 1924 Mad 493). In the said case the question was directly raised
before the Bench as to what exactly was the land purchased in
Court auction which described the land as lying within specific boundaries and by extent when there was variation between the two. In the course of the judgment, the learned Judges observed that the rule of interpretation was that boundaries must prevail as against the measurements. The learned Judges also observed that there was no reason to suppose that, when the judgment creditor was putting up the property for sale in execution of his money decree, he was reserving any portion of the property to be left to his judgment-debtor and settling only a portion of the property belonging to him and that the property was a single property forming one block on the Avanasi Road. The observations, further to the statement of the rule, have impact only as the probabilities of a case; but in unmistakable terms the
Bench has expressed that the rule in the interpretation of a document was that boundaries prevailed as against the measurements. It is clear from the observations of the Bench that it was the rule of interpretation of a document. The matter should rest only on the application of the rule and nothing more.”
29.Hence, with the evidence on record, hereinbefore examined, it is proved that the suit land an extent of Ac.71 cents, situated in S.No.2/2 of Yendada village is the part and parcel of the land purchased under
Ex.A2. It is not the Government land and the said land was not taken over by the Government on 01.07.1949 under the provisions of A.P.(A.A.)
Estates (Abolition and conversion into Ryotwari) Act, 1948.
30.The next allegation is that Government evicted the plaintiffs on 11.07.1997. It is the further assertion of the Government that it handed over the land to Bharat Petroleum Corporation Limited on 10.07.1999.
Ex.B5 is the delivery receipt. Fourth plaintiff (P.W.1) has asserted that till date they have been possession of the land and there are mango trees, aged 65 to 70 years. Neither the Government Pleader, who appeared for D1 & D2, the Advocate for D3 & D4 put a suggestion to P.W.1 that the suit 27 land was handed over to D4. D.W.1, in his chief-examination deposed that defendants cut and removed the trees, cleared the bushes and shrubs the developed the land to suit their needs. D.W.2 also, in his chief- examination, deposed that on 10.07.1999, Government of Andhra Pradesh handed over the site to D4 company and D4 company removed the bushes and shrubs and the land was developed to suit their need. He further deposed that on 31.08.2001, their Engineering Officer and other people including the contractors started construction of compound wall and at that time plaintiffs 1 & 2 and their people came and obstructed the officials, but their officials resisted their acts and thus plaintiffs 1 & 2 left the place and immediately the officials lodged a complaint to the police.
The cross-examination of D.Ws.1 and 2 however, gives a different picture.
D.W.1 deposed that he does not know that whether D4 is in possession of the land or whether D4 gave the property to any person. This particular statement of D.W.1 is suffice to understand that he has no idea about the present status of suit land. The cross-examination of D.W.2 is more damaging. He deposed that in his last visit, he had seen a dwelling house and somebody was living there. He did not know whether the watchman employed by plaintiffs is residing there. He did not observe the electricity service connection to the said house. He also deposed that he was not aware whether the suit property was not physically handed over to D4. He deposed categorically that there was no any sort of development in the property till date. This evidence is sufficient to say that the delivery of property to D4 is only a paper delivery but not actual.
31.It is the plea of the Government that plaintiffs were evicted from the land on 11.07.1997. During the cross-examination of D.W.1, he deposed that mention of the above date is a type mistake and the plaintiffs were evicted on 19.05.1997. Ex.A15 is the eviction order dated 02.05.1997. The appeal was filed before the Revenue Divisional Officer on 28 24.06.2007. The learned Revenue Divisional Officer on 25.07.1997 passed interim orders under Sec.10(2) of the Act and suspended the execution of orders dated 02.05.1997. The learned RDO finally disposed the appeal on 26.06.1999 and vacated the interim orders. Hence, the interim order was continued till 26.06.1999. It is a fact that in W.P.No.8533/2000 on 09.05.2000, the Hon'ble High Court stayed the order of RDO dated 26.06.1999 till the disposal of appeal before Joint Collector. The Revision
Petition was disposed by the Joint Collector on 03.03.2001. Thus, the stay granted by the Hon'ble High Court continued till 03.03.2001. Hence, the contention that plaintiffs were evicted on 19.05.1997 and delivered the land to D4 on 10.07.1999 cannot be accepted. It is not the case of the defendants that plaintiffs were evicted some time later to 03.03.2001. All the orders and proceedings, contrary to the above stay orders are non-est and they deserve no consideration.
32.It is a fact that Government alienated the suit land to Bharat
Petroleum Corporation Limited under G.O.Ms.No.529 dated 01.08.2000.
Once the Government has no right over the property the alienation is void.
Plaintiffs need not ask for cancellation of such void transaction. In Prem
Singh v. Birbal and Others 9, the Apex Court observed:
"16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of the law, as it would be a nullity."
33.It is a fact that during the pendancy of suit plaintiffs 1 and 2 died. The surviving plaintiffs filed I.A.No.65/2006 under Order XXII Rule 2
CPC, praying the Court to allow the surviving plaintiffs to proceed with suit as the right to sue survived in their favour and the suit property is their joint family property. This Court allowed the petition on 17.02.2006.
9.(2006) 5 SCC 353.
29
The said order is not challenged and it attained finality. Hence, the cross- examination of P.W.1 about the legal heirs of deceased plaintiffs 1 and 2 is no way advantage to the defendants.
34.Now let us look into the objections raised by the counsel for defendants 3 & 4. The first objection is that the suit is barred by time.
Since, it is a purely legal issue, defendants can raise the objection though they have not taken the plea in the written statement. This suit was filed on 25.04.2001. Admittedly the Mandal Revenue Officer issued notice under Ex.A23(a) on 19.03.1997. First plaintiff gave reply on 19.04.1997.
The Mandal Revenue Officer passed eviction order under Ex.B4 on 02.05.1997. First plaintiff filed appeal before the Revenue Divisional
Officer and the same was dismissed on 26.06.1999. Ex.B2 is copy of the said order. First plaintiff filed Revision Petition before the Joint Collector,
Visakhapatnam and the same was dismissed on 03.03.2001. Ex.B1 is the copy of order. Admittedly, plaintiffs did not challenge the validity of eviction order by a declaratory suit. Plaintiffs filed the suit for declaration of their title to the suit property. It is noticed that till 03.03.2001, there was stay of operation of eviction orders passed by Mandal Revenue Officer under Ex. B4. Hence, there cannot be any cause of action for the plaintiffs to approach the Civil Court. Further in view of the judgment of Apex Court in Thummala Krishna Rao's case (cited above), under the provisions of
Land Encroachment Act, 1905, the Government has no right to evict the persons in occupation of the land with a bona fide claim and the
Government has to file the suit for declaration of its title. In G.
Satyanarayana's case (cited supra), the Hon'ble High Court, in the batch of writ petitions, held that Government cannot evict the alleged encroachers summarily and further held that Government shall file a suit for declaration of its title. Hence, in the light of above legal position, either the eviction notice or eviction order passed under A.P. Land Encroachment 30
Act, 1905 cannot be held to be the cause of action to file a suit for declaration of title.
35.In Khatri Hotels Private Limited case (cited supra), when the plaintiffs filed first suit in 1990, the Union of India filed written statement alleging that the land was vested with the Central Government and by notification the Central Government transferred the land to Delhi
Development Authority. Thus, the Apex Court held that the cause of action for the plaintiff first arose in 1990 with the averment in the written statement and hence, plaintiffs' third suit, filed in 2000 was barred by time. Hence, this judgment has no relevance to the facts of the case.
36.With regard to other objection about the maintainability of suit by the plaintiffs alone without impleading all the heirs of the original owner Rama Raju, the said objection shall not sustain for want plea in the written statement. The judgment relied on by the learned counsel for defendants 3 & 4 inManapragada Swarnpathi Vs. Krovvidi
Suryaprakasa Rao10 is not relevant in the facts of suit dispute. It was a suit for declaration of plaintiff's right to hold an office of Karanam, but the
Government was not impleaded as party to the suit. It was held that
Government, though not necessary party, it is certainly a proper party and in the absence of Government, being the party, the suit is not maintainable. Plaintiffs have filed the suit for declaration of their title, being the members of joint family. When the plaintiffs 1 and 2 died, they filed an application seeking permission for the remaining plaintiffs to continue the suit proceedings and this Court allowed the said application.
Defendants never challenged the right of the plaintiffs to file suit with out impleading all the legal heirs of K. Rama Raju. Accordingly, the two issues are answered in fovour of plaintiff and against the defendants.
37.ISSUE NO.3:-
10.AIR 1934 MADRAS 293 31
In view of the findings in the above issues, plaintiffs are entitled to reliefs asked in the suit.
In the result, suit is decreed with costs, declaring the plaintiffs' title to the suit property and granting permanent injunction, restraining the defendants from interfering with plaintiffs' possession over the suit property.
Dictated partly to Stenographer Gr-I, transcribed by her, partly
typed by me on my personal computer and pronounced by me in open Court this the 7th day of December 2016.
VI Addl. Senior Civil Judge FAC/ III Addl. Senior Civil Judge Visakhapatnam.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF: FOR DEFENDANTS:
P.W.1 :- K.Suryanarayana Varma DW.1: T.Venugopal
P.W.2: - Ch.Sankara Rao DW.2: B. Ramesh
DOCUMENTS MARKED
FOR PLAINTIFF:
Ex.A1/16.5.1962Registration extract of sale deed No.1309/62 executed in favour of P.Satyarao
Ex.A2/15.10.1967Registration extract of sale deed No.3590/67 executed by Pediredla people
Ex.A3/17.2.1970Fasli receipt No.98721
Ex.A4/24.12.1972Fasli receipt No.98799
Ex.A5/8.5.1972Fasli receipt No.103315
Ex.A6/14.12.1973Fasli receipt No.103387
Ex.A7/10.12.1974Fasli receipt No.315180
Ex.A8/2.2.1978Fasli receipt No.268232
Ex.A9/2.2.1978Fasli receipt No.268234
Ex.A10/9.10.1988Fasli receipt No.263021
Ex.A11/9.1.1988Fasli receipt No.163022
Ex.A12/4.10.1988Fasli receipt No.163089 32
Ex.A13/5.10.1988Fasli receipt No.163091
Ex.A14/6.10.1988Fasli receipt No.163090
Ex.A15/2.5.1997Orders of M.R.O. in RC No.640/96
Ex.A16/26.6.1999Orders of RDO in RC No.1999/97
Ex.A17/29.4.2000Revision petition filed before Collector, VSP
Ex.A18/9.5.2000Orders of Hon'ble High Court in WP No.8533/2000
Ex.A19/24.2.2001Order of the settlement officers in IA.6/2000
Ex.A20/22.12.2000Office copy of suit notice issued to District Collector
Ex.A21/--Sketch of the plaint schedule land
Ex.A.22/29.3.2001Letter to the Settlement Officer and Joint-Collector
Ex.A23/30.4.2001Postal receipt No.4415
Ex.A23(a)Notice issued under Sec.7 of Land Encroachment Act, 1905.
Ex.A24/--Postal acknowledgement
FOR DEFENDANTS:-
Ex.B1/3.3.2012Copy of proceedings in RC No.2095/2000/E2
Ex.B2/26.6.1999Copy of proceedings of RDO in RC No.1999/97D Ex.B3/19.3.2001Copy of proceedings of District Collector in RC No.2095/2000/E2
Ex.B4/2.5.1997Proceedings of MRO in RC No.640/96, HDT
Ex.B5/10.07.1999Delivery receipt along with copy of Field Map of S.No.2 and Photostat copy of settlement adangal for S.No.2.
VI ASCJ, VSP
FAC, III ASCJ, VSP