Putur Nanemma vs Jilakara Gundaiah And Ors.

on 25 March, 2004

Andhra High Court Andhra High Court Putur Nanemma vs Jilakara Gundaiah And Ors. on 25 March, 2004 Equivalent citations: 2004 (3) ALD 639, 2004 (4) ALT 122 Author: E D Rao Bench: E D Rao JUDGMENT Elipe Dharma Rao, J. 1. This appeal is filed by the plaintiff against the judgment and decree dated 20-8-2001 in A.S. No. 11 of 1998 on the file of the Senior Civil Judge, Rajampet, dismissing the appeal as also the suit of the plaintiff. 2. The plaintiff filed the suit O.S. No. 12 of 1995 on the file of the Junior Civil Judge, Rajampet for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment over the suit schedule property. It is the case of the plaintiff that she is a landless poor person and on the application, the Revenue authorities assigned the suit schedule property and granted D.K.T. patta after following the procedure laid down in A.P. Board Standing Orders. She invested about Rs. 20,000/- and developed the land and cultivating the same. She also installed a bore well and electric motor by spending about Rs. 70,000/-. The defendants highhandedly burnt the thorny fencing laid around the suit schedule property and causing obstruction to irrigate the standing crop and, therefore, he filed the suit for permanent injunction. 3. Defendant No. 1 filed his written statement, which was adopted by Defendants 2 to 4. They contended that the photostat copy of patta filed by the plaintiff is bogus and even if the grant of patta is true, it is opposed to the Board Standing Orders, that Sy.No. 966 in which patta is granted is a kunta poramboke, which has an area of Acs.55.36 cents and has an ayacut of 100 acres, that some area out of the kunta was assigned to some persons thereby reducing the area of the tank to Acs.34.00 and the ayacutdars are made to suffer without sufficient water supply, and that assignment of land under the kunta is totally illegal and opposed to the rules and regulations, and, therefore, prayed for dismissal of the suit. 4. On the above pleadings, the Trial Court framed the following issues for trial1. Whether the plaintiff is entitled for permanent injunction as prayed for ? 2. To what relief? 5. On behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A1 and A2 were marked and Commissioner's report was marked as Ex.C1 and plan was marked as Ex.C2. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B12 were marked. 6. The learned Junior Civil Judge observed that the testimony of P.Ws.1 to 3 coupled with Exs.A1 and A2 and Exs.C1 and C2 clearly establish that the suit schedule property was assigned in favour of the plaintiff, but following the decision of this Court in Maddu Tatha and Ors. v. U. Nagamani, 1995 (1) ALD 484, held that the assignment of tank poramboke in favour of the plaintiff is illegal and unenforceable, and accordingly refused to grant permanent injunction. Aggrieved by the same, the plaintiff preferred an appeal before the Senior Civil Judge, Rajampet in A.S. No. 11 of 1998. The learned Senior Civil Judge, on re-appreciation of the entire evidence on record, observed that if the area for which the assignment was made will diminish the storage capacity of the tank and the area is objectionable for assignment, then the patta has got to be cancelled by the Revenue authorities. The learned Senior Civil Judge also observed that so long as the classification of the land continues to be tank poramboke, the patta in favour of the plaintiff is illegal and she cannot seek the relief of permanent injunction against the ayacutdars who are entitled to the benefit of taking water from the
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Putur Nanemma vs Jilakara Gundaiah And Ors. on 25 March, 2004

tank for irrigating their lands. Aggrieved by the said judgment, this second appeal is filed. 7. Learned Counsel for the appellant, Mrs. A. Chaya Devi, submits that both the Courts below erred in holding that the patta in favour of the plaintiff is illegal, as, in view of the proviso to B.S.O.15, tank-bed lands may be leased with a condition for resumption, when required for any public purpose without payment of compensation for improvements, if the land is not required immediately or if the occupation of the land is not objectionable. She submits that in view of the proviso to B.S.O.15, it is for the authorities to decide whether the assignment made in favour of the plaintiff is objectionable or not and the defendants cannot contend that the water level in the tank will be diminished because of the cultivation done by the plaintiff. She further submits that the lower appellate Court having held that the occupation of the land by plaintiff is objectionable or unobjectionable has to be decided by the Revenue authorities, ought not to have dismissed the appeal. She also submits that the facts in the case relied on by the Trial Court in Maddu Tatha and Ors. v. U. Nagamani (supra) are different from the facts of this case. She placed reliance on the proviso to B.S.O. 15(4), which is to the effect that tank-bed lands, fore-shore lands and lands under categories (g) (j), (k) and (m) above, if not immediately required or if their occupation be not objectionable at present, may be leased with a condition for resumption, when required for any public purpose without payment of compensation for improvements, if any effected. She also placed reliance on Note 1 to B.S.O.15(4) issued vide G.O. Ms. No. 1142, Revenue, dated 18-6-1954 which reads thus: "Whenever applications for assignment of lands classified as poramboke are received, it should be examined whether the lands are really required for the purpose for which they were originally set apart, or for any other purpose, and if they are not so required, steps should be taken to convert them to ayan and assign them." 8. Placing reliance on the proviso to B.S.O.15(4), the learned Counsel submits that the said proviso is an exception and tank-bed lands may be assigned if it is not objectionable. 9. In the above stated facts and circumstances of the case, the judgments delivered by both the Courts below are to be examined with regard to the application of the proviso to B.S.O. 15 (4) to the facts of this case. Note 1 to B.S.O. 15(4) says that whenever applications for assignment of lands classified as poramboke are received, it should be examined whether the lands are really required for the purpose for which they were originally set apart, or for any other purpose, and if they are not so required, steps should be taken to convert them to ayan and assign them. 10. For the purpose of this case, the facts in Maddu Tatha and Ors. v. U. Nagamani (supra) may be noted in some detail. As seen from the judgment reported, the plaintiff claimed to be the D. Patta holder in R.C. No. 2378/82 and Sy.No. 153 P. Punja (Mettu) with an extent of Ac.2.00 situate in Boddam Village, i.e., suit schedule property. The patta was issued to her in the year 1982. She claimed to be cultivating the land since the year 1982 and continued to be in possession till the date of the suit. On 2-5-1982, the Revenue authorities issued D. Patta to the plaintiff and the same was marked as Ex.A1 before the Trial Court. She paid land revenue to the suit land for the Faslies 1392-94 under land revenue receipt dated 10-11-1985 and the same was marked as Ex.A2. She alleged interference to her possession and cultivation of the suit land by the defendants. The defendants not only denied the issue of D. Patta to the plaintiff in regard to the suit property but also the legality of the same. They also denied the possession of the plaintiff regarding the suit property much less her cultivation at any time till the date of the suit. On the other hand, they contended that the suit property forms part of the Koneuru/water tank for the benefit of the village people regarding which no patta could have been issued to the plaintiff. They also set up their own right and possession over the suit property. The correctness of the suit schedule was also challenged. On these pleadings, the following issues were framed by the learned Junior Civil Judge, Rajam: (1) Whether the plaintiff is entitled for permanent injunction as prayed for ? (2) Whether the plaint schedule is correct?
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Putur Nanemma vs Jilakara Gundaiah And Ors. on 25 March, 2004

(3) To what relief? The learned Junior Civil Judge held issues 1 and 2 against the plaintiff and consequently did not give any relief to her. On appeal by the plaintiff, the learned Senior Civil Judge, Rajam framed the following points for determination. (1) Whether the plaintiff is entitled to the permanent injunction? (2) Whether the appeal can be allowed? (3) To what relief ? 11. The learned Senior Civil Judge held Points 1 and 2 in favour of the plaintiff and accordingly allowed the appeal and decreed the suit for permanent injunction. Aggrieved by the same, the defendants preferred second appeal before this Court. 12. In the appeal before this Court, a learned Single Judge of this Court (Hon'ble Sri Justice B.K. Somakasekhara), in the reported judgment, observed that in a simple suit for permanent injunction based on D. Patta issued by the Governmental authorities to the plaintiff and the possession based upon the same, the learned Senior Civil Judge appears to have dealt with the matter in a most improper and incorrect manner as against the correct and the proper approach of the matter by the learned Junior Civil Judge in giving clear findings of the real questions involved in the suit. The learned Single Judge felt that the Courts below ought to have framed the following issues for determination keeping in view the contentions raised in the pleadings: (1)(a) Whether the plaintiff was in possession of the suit property on the date of the suit ? (b) If so whether such a possession is lawful? (2) Whether the defendants interfered with the possession of the plaintiff regarding the suit property or whether they were justified in interfering with such a possession ? (3) Whether the plaintiff is entitled to the permanent injunction sought for? (4) To what order? 13. The learned Single Judge further observed that both the Courts below have adopted a very easy and short cut means of simply raising an issue or a point for determination whether the plaintiff is entitled to permanent injunction. While dealing with the question whether the suit schedule property claimed by the plaintiff forms part of the Koneru as contended by the defendants, or whether the boundaries as stated by the plaintiff in the suit schedule establish the fact that Ex.A.1 - D. Patta was given quite beyond or independent of Madduvani Koneru, the learned Single Judge considered the Commissioner's report and the Field Measurement Book, which supported the fact that the suit schedule land forms part of Madduvani Koneru, and observed that 'not only the identity of the suit property was not established by the plaintiff but also the cultivation of any portion in the Koneru was impossible or improper as found from the Commissioner's report. The learned Single Judge also observed that the learned Junior Civil Judge was totally justified in law in acting upon the report of the Commissioner and the Field Measurement Book as evidence and in drawing inferences against the plaintiff. On the other hand, the learned Senior Civil Judge, although accepted the report of the Commissioner and the findings therein, and although did not come to different conclusion, was totally unjustified in holding the possession of the suit property with the plaintiff when the positive evidence of the Commissioner disproved the possession of the plaintiff over the suit property. Disallowing the claim made by the defendants that the Koneru is a private tank of their ancestors, the learned Single Judge observed thus:
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Putur Nanemma vs Jilakara Gundaiah And Ors. on 25 March, 2004

It is true that both the Courts below have found that the defendants have failed to prove their rival claim over the suit property. Their claim is found to be inconsistent. Their contention that the suit property is a part of Koneru confers no individual right or possession for them. That the Koneru is a private tank of their ancestors finds no proof whatsoever. Their resistance to plaintiff's claim has no basis. But the plaintiff has to fail or succeed on her own case, but not on the weakness of the defendants, 14. A contention was raised by the defendants in the second appeal before the learned Single Judge that even if the plaintiffs possession is proved, it is unlawful violating the law and the rule of assignment thereby becoming repugnant to Section 23 of the Indian Contract Act making it void conferring no right on her. The learned Single Judge referred to the history leading to the enactment of the Andhra Pradesh Board of Revenue Standing Orders, which were issued under the Andhra Pradesh (A.A.) Board of Revenue Regulation, 1803, and were in force even now in Andhra Area except with the jurisdiction, powers and duties transferred and vested in and exercised by the Commissioner concerned by virtue of Section 3 of the Andhra Pradesh Board of Revenue (Replacement by Commissioners) Act, 1977. The learned Single Judge also referred to various judgments on the question whether the Board Standing Orders have the force of law or not and observed that the Board Standing Orders may not have the force of law, but those Orders which are issued by virtue of the statutory powers of the Board will have the force of law. Placing reliance on the judgment of this Court in Katta Rattamma and Ors. v. Gannamaneni Kotaiah, 1975 (II) An.WR 122, the learned Single Judge held that Board Standing Orders are both statutory and non-statutory depending upon the fact whether they are issued under any statute or whether they are issued in the form of a Government Order by the Government in exercise of their executive power to issue instructions under Article 162 of the Constitution of India. Dealing with B.S.O. 15 regarding assignment of lands, the learned Single Judge observed as under: "Admittedly, no other rule or statute is pointed out to deal with the disposal of lands by the Board of Revenue and now the Commissioner which is equivalent to Standing Order No. 15 and therefore, it must be taken to be the rule having force of law regarding disposal of lands. Therefore, the law now settled appears to be that orders regarding assignment of lands are to be disposed of in a quasi judicial manner and even the rules contained in the Standing Orders envisages disposal of applications for assignment in the same manner. The Officer who is competent to order the assignment is thus bound by Standing Order No. 15 in regard to disposal of land by way of assignment or otherwise. In sum and substance, the legality, propriety and the correctness of disposal of land by way of assignment or otherwise are to be decided with reference to Standing Order No. 15. Para (4) of Standing Order No. 15 contemplates two aspects viz., lands that may be assigned and that may not be assigned.........................." 15. While dealing with the grant of injunctions under Sections 36, 38 and 41 of the Specific Relief Act, 1963, the learned Single Judge observed that the grant of injunction is a judicial discretion and it must be governed by rule and not by human. It is apt to excerpt the following from the said judgment: "The grant of injunction is an act depending upon the discretion of the Court. It is not a matter of ex debito justitiae, but one which is purely within the sound discretion of the Court.............It cannot be demanded as of right............. Undoubtedly it is judicial discretion. Discretion when applied to a Court of law, says Lord Mansfeild, means discretion guided by law. It must be governed by rule and not by human. It must not be arbitrary, vague and fanciful, but legal and regular.............It will not be allowed against public convenience.............As distinguished from arbitrary discretion and from lack of discretion, sound discretion consists in an observance of the rules and considerations which have generally guided and influenced Courts in granting injunctions..........Such a discretion must be exercised with extreme caution and only in very clear cases............All these settled principles are to be read in Sections 36, 38 and 41 of the Special Relief Act, 1963..................." 16. Applying the above principles to the facts of this case, it has to be seen whether the plaintiff is entitled for grant of injunction or not. The D.K.T. patta was granted by the Revenue authorities in favour of the plaintiff in the year 1979 and since then she has been in possession of the land. She also raised mango garden in the
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Putur Nanemma vs Jilakara Gundaiah And Ors. on 25 March, 2004

said land. The defendants raised objection only in the year 1995. All these years, the plaintiff has been in possession of the land and cultivating the same. When the defendants tried to interfere with her possession, the plaintiff filed the suit. The defendants filed written statement contending that the patta granted in favour of the plaintiff is in contravention of the Board Standing Orders as the land in question forms part of kunta poramboke. The learned Junior Civil Judge, considering the evidence and other material made available on record, held that though the plaintiff established her possession and enjoyment over the suit schedule property on the date of filing the suit, the D.K.T, patta granted in her favour itself is void and unenforceable, and following the decision referred to supra, refused to grant permanent injunction. In appeal, the learned Senior Civil Judge confirmed the findings of the learned Junior Civil Judge and observed that so long as the classification of the land continues to be tank poramboke, the patta in favour of the plaintiff is illegal and the plaintiff cannot seek the relief of permanent injunction against the ayacutdars who are entitled to the benefits of taking water from the tank for irrigating their lands, and holding thus, dismissed the appeal. 17. After perusing B.S.O.15(4) and the case law on the subject and also the judgments of both the Courts below, I am of the view that the case on hand has to be examined with reference to B.S.O.15(4), and whether the assignment of land in favour of the plaintiff is objectionable or not, and whether the plaintiff is entitled for grant of permanent injunction following the principles laid down in the judgment referred to above. 18. In this case, the land was assigned by the Revenue authorities in favour of the plaintiff during 1979 and she has been cultivating the land and also raised mango garden. The evidence of P.Ws.2 and 3, Village Administrative Officer and Advocate-Commissioner respectively clearly show that the plaintiff has been in possession of the land and cultivating the same and there is no dispute over the assignment of the land. The only objection raised by the defendants is that the cultivation being done by the plaintiff will diminish the water level in the tank, and on that ground they filed an application before the Revenue Divisional Officer for cancellation of patta granted in favour of the plaintiff. Admittedly, the application filed by the defendants for cancellation of patta granted in favour of the plaintiff is pending consideration before the Revenue Divisional Officer. It is for the Revenue authorities to decide whether the assignment of land in favour of the plaintiff is objectionable or not depending on the nature of the land and purpose for which it was set apart. It is not within the purview of the Court to decide the question. Though both the Courts below observed that the plaintiff has been in possession of the land, failed to appreciate the fact that the application is pending before the Revenue authorities. 19. From the above discussion, it is clear that in view of the exception provided under the proviso to B.S.O.15(4) and Note 1 issued vide G.O. Ms. No. 1142, dated 18.6.1954, and having regard to the balance of convenience, whenever applications for assignment of lands classified as porambokes are received, it should be examined whether the lands are really required for the purpose for which they were originally set apart, or for any other purpose, and if they are not so required, steps should be taken to convert them to ayan and assign them. It is for the authorities who are conferred with the power to assign tank-bed lands to issue patta in respect of the lands forming part of such tank-bed lands to enquire into the purpose for which the lands were originally set apart, and whether those lands are not immediately required, and whether their assignment is objectionable, and if they are not so required, to take steps to convert them to ayan and assign them. 20. In this case, D.K.T. patta was granted in favour of the plaintiff by the Revenue authorities, and there is no counter claim by the defendants on the land assigned in favour of her. Their only objection is that such assignment will diminish the water level in the tank and the cultivation being done by the plaintiff reduces the source of irrigation to their lands. In the absence of any counter-claim by the defendants to the land in question, both the Courts below erred in dismissing the suit of the plaintiff for permanent injunction. 21. In the result, for the above reasons, I am of the view that the appeal deserves to be allowed and it is accordingly allowed. The plaintiff is entitled for grant of permanent injunction till the matter is decided by the Revenue Divisional Officer as to whether assignment of land is objectionable or not. No costs.
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