GRAM PANCHAYAT Vs. YARLAGADDA ANKENEEDU PRASAD

JUDGEMENT

(1.) The 1st defendant has filed the appeal against the judgment and decree of Principal Subordinate Judge, Tenali in O.S.No.33 of 1986. The suit was filed by respondents 1 and 2 originally for declaration and injunction. Declaration was sought that the plaintiffs had the right of fishery in the suit tank and that they had also the right to enjoyment of usufruct and right to management over the suit tank. Consequential relief of injunction restraining the defendants from interfering was also sought. Subsequently the plaint was amended and a declaration for ownership was also sought for from the Court. The assertions made in the plaint were that the plaintiffs were the sons of late Raja Yarlagadda Sivaram Prasad, Zamindar of Devarakota paragana who was Zamidar till the abolition of zamindari. The plaintiffs contended that the suit tank was dug and constructed by one Yarlagadda Kodandaramana, one of their ancestors in or about 18th century and they and their ancestors had been exercising the rights of ownership over the suit tank. They had been enjoying the usufruct of the trees on the banks of the tank since the time immemorial. They were also using the tank for growing fish and fishery rights were being leased out by them. They were also repairing the tank and its banks. According to them they were in possession of the suit tank and were also exercising ownership rights over the tank. They had uninterrupted possession and enjoyment of ownership as owners which was within the knowledge of one and all. The rights of the plaintiffs were never interfered by anybody since the excavation of the tank in 18th century. According to them there was an area of 10 acres in the same survey number in which the suit tank is situated and a portion of that land was even sold by the plaintiffs. They had also filed suits against encroachers. They had also granted permission to the local board for laying roads over a portion of the suit land. In 1920 when some of the villagers of Kuchipudi tried to interfere with the rights of the plaintiffs' ancestors Raja Yarlagadda Ankineedu Prasad Bahadur filed O.S.No.326/23 on the file of District Munsif, Tenali for declaration and for perpetual injunction and the suit was decreed on 6-7-1925. In this suit the rights of ownership and possession of the suit tank and right to fishery and usufruct of the plaintiffs' ancestors were upheld. Against the judgment the defendants in the suit preferred an appeal being A.S.No.340/25 before the District Court, Guntur which was transferred to Sub Court, Bapatla and numbered as A.S.No. 193/96. The appeal was dismissed on 28-2-1927 upholding the Judgment of the lower Court. It was also contended by the plaintiffs that their father filed suits in the District Munsif Court, Repalle for evicting the encroachers in 1945 to 1953. Some of the suits were referred to arbitrators and awards were passed recognizing the rights of plaintiffs' ancestors over the property which forms part of survey No.408 and 409. Some suits were decreed on contest. The plaintiffs also contended that their ancestors, their father and they themselves were leasing out the fishery rights in the suit tank every year. The income realised from the tank was partly used by the plaintiffs and partly it was used for the repairs of the tank. Their ownership had never been challenged by anybody. The plaintiffs further contended that one Tumala Sriramulu the present Sarpanch of the defendant panchayat himself was taking on lease the fishery rights in the suit tank from the plaintiffs. Two years before filing of the suit the lease was not given to him because a third party offered higher price. Since Tumala Sriramulu could not get the lease rights of fishing, that became the reason for filing the suit on behalf of panchayat by Sriramulu. The said Sarpanch started creating trouble to the plaintiffs and influenced the Executive Officer of the panchayat who made a representation to the Panchayatraj Department stating therein that the suit property had vested in the Panchayat and the Panchayat then tried to lease out the fishery rights of the suit tank. Then the second plaintiff filed a Writ petition against the defendant questioning the rights of the 1st defendant in putting the fishery rights to auction. The defendant filed his counter and the High Court passed orders on 18-12-1985 directing the 2nd plaintiff to file a suit against the defendant for declaration of his rights within three months from the date of the judgment. The High Court also directed the second plaintiff to give bank guarantee for an amount of Rs. 50,000.00 to the defendant Panchayat towards the lease of fishery rights in the suit tank for 1985-86 within six weeks. Andhra Bank, Morrispet branch, Tenali gave the bank guarantee for Rs.50,000/- to the defendants on behalf of the second plaintiff. The Executive Officer of the Gram Panchayat returned the guarantee on the ground that it was not in the proper form and made an advertisement for auction on 26-2-1986. The second plaintiff thereafter approached the High Court again and the High Court directed the second plaintiff to deposit Rs.50,000.00 by way of demand draft with defendants on or before 4-3-86 and to file a suit on or before 18-3-86. The second plaintiff thereafter deposited the amount of Rs.50,000.00 with the defendant before expiry of time granted by the High Court and filed the suit. The first defendant filed written statement denying the plaint allegations. He stated that the suit tank in survey No. 409/2 was government poramboke in the revenue records and the revenue entry clearly shows that Raja Yarlagadda Ankineedu Bahadur, Zamindar was appointed as trustee in the vacancy caused by the death of his father Mallikarjuna Prasad Naidu Bahadur in the proceedings No.264, dated 20-12-1921. The endorsement was signed on 20-6-1922 and the same had been filed in I.A.No. 1140/86. The first defendant also contended that the revenue record clearly showed that tank was being referred to as "Sri Rajah Yarlagadda Mallikarjuna Prasad Naidu Bahadur Zamindar's His Dharma Cheruvu' and the said Zamindar was acting as its trustee and on his death the Tahsildar issued orders appointing his son Raja Yarlagadda Ankineedu Bahadur as trustee of the said Dharma cheruvu and for some time it continued so and after the death of Raja Yarlagadda Ankineedu Bahadur, Zamindar no other successors were appointed and therefore right from 1921 the tank was shown in revenue records as Government poramboke. The first defendant further contended that after coming into force of the Madras Village Panchayat Act, 1950 the suit tank vested with the defendant Gram Panchayat. In the list prepared under the Act the suit property was shown as Government poramboke and after coming into force of A.P. Gram Panchayats Act the District Collector, Guntur published in Guntur District gazette the list of porambokes vested in the Panchayat under various sections in Tenali taluk and at page 60 of the gazette S.No. 409/2 was referred as "Cheruvu". Therefore, they contended that even prior to 1921 the suit tank was a Government poramboke and subsequently it vested with Panchayat first on coming into force the Madras Village Panchayat Act and thereafter by virtue of A.P. Gram Panchayats Act. The Gram Panchayat passed a resolution No.60 on 26-8-85 to effect necessary repairs to the suit tank. Another resolution was passed on the same day requesting the Divisional Panchayat Officer to fix up upset price for conducting auction of the tank and the upset price was fixed at Rs. 1,50,000.00. The resolution dated 24-10-85 accepted the same and auction of fishery rights was fixed at 2.30 p.m. on 11-11-85, thereafter the plaintiff approached the High Court. The second defendant also filed written statement denying the allegations made in the plaint and stated that after coming into force of A.P. Gram Panchayats Act all the tanks were vested in the Gram Panchayat and so the contention of the plaintiffs that the suit tank was private tank of Rajas of Charlapalli was not correct and the suit was liable to be dismissed. A rejoinder was filed by the plaintiffs stating that the plaint schedule tank was not Government poramboke and District Collector has no power to issue notification or communication to show that the plaint schedule property had vested in the Gram Panchayat. The plaintiffs have been maintaining and enjoying the suit tank from times immemorial.

(2.) On the basis of these pleadings the following issues were framed:

(3.) In view of the facts narrated hereinabove and the issues framed we are of the view the issue No.4 was one of the most important issues to reach to a conclusion. The trial Court on the basis of documents and evidence came to the conclusion that the tank was owned by the plaintiff, therefore it passed the decree. On issue No.4 the trial Court was cryptic in its order by saying, "As the first defendant failed to prove that the suit tank vested with it, I hold that the suit tank is not vested with the 1 st defendant Gram Panchayat. I answer the issue accordingly." At present we are not adverting to scrutinize the evidence as to whether the plaintiffs were really the owners of the tank or the trustees for management of the tank. We are deferring this question because if it is found that the tank had vested in Gram Panchayat by virtue of Madras Village Panchayat Act, 1950 and again by virtue of A.P. Gram Panchayats Act, 1964 then the questions of ownership may become secondary. Addressing these two questions also is of prime importance.