G SEETHARAMAIAH Vs. DISTRICT COLLECTER AP STATE KHAMMAM

JUDGEMENT

(1.) The unsuccessful plaintiffs, who are the appellants herein, preferred this appeal, aggrieved by the Judgment and decree dated 24.08.1989 in O.S.No.2 of 1989 on the file of the Additional District Judge, Khammam. For the sake of convenience, the parties will be referred to as they are arrayed in the suit.

(2.) The facts, in nutshell, are as under: Plaintiffs 1 and 2 are the brothers and the third plaintiff is their sister. The fourth plaintiff is a resident of Nacharam village. The plaintiffs claim that they are in possession and enjoyment of the land admeasuring Ac.9.23 guntas in Sy.No.398/2 to 7 (old Sy.Nos.917 and 918), Ac.7.32 guntas in Sy.No.503, Ac.4.20 guntas in Sy.No.503, Ac.2.13 guntas in Sy.No.413 and Ac.1.26 guntas in Sy.No.415 respectively, situated at Nacharam village. Subsequently, the said lands were mistakenly shown as 'Khariz Khata land'. The third plaintiff was gifted with the land as 'pasupu kumkuma'. The case of the plaintiffs is that their lands were submerged in Bethupalli tank. Since they were not paid any amount, in lieu of compensation, they occupied the Khariz Khata Lands. When they were sought to be evicted, they filed W.P.No.2796 of 1979 against the defendant and others. It was disposed of on 11.03.1982 with a direction to the plaintiffs to seek relief in a civil Court by way of filing a suit, within a period of three months from that day. Consequently, the plaintiffs filed the above suit against the defendant for declaration of title over their respective lands and for grant of injunction restraining the defendant from interfering with their possession and enjoyment over the suit schedule lands.

(3.) The defendant filed its written statement contending that the pahanies from 1953 onwards have been verified and the lands in Sy.No.398/2 to 7 are shown as 'Khariz Khata'. Even at the time of implementation of Khasra Pahani, the first plaintiff did not file any objection nor did he produce any document at the time of conducting enquiry in pursuance of the notice issued under Section 7 of the Andhra Pradesh Land Encroachment Act, 1905 (for short "the Act"). In the writ petition also, the plaintiffs have not mentioned that the lands are patta lands and that they were shown by mistake as 'Khariz Khata land', is not correct. The first plaintiff is not entitled to continue in possession of the said land, which is the Government land. He was not entitled to any declaration. It is also contended that on issuance of notices under Section 7 of the Act, the second plaintiff on his behalf and on behalf of plaintiffs 1 and 4 submitted explanation. But, they failed to furnish any documents showing their right or entitlement to continue in possession of the property. After making an enquiry, notices under Section 6 of the Act were also issued to the plaintiffs seeking their eviction from the Government lands. Questioning the same, the plaintiffs filed W.P.No.2796 of 1979. They also filed W.P.M.P.No.3439 of 1979 and obtained ex parte interim orders on 06.04.1979. But, the plaintiffs were evicted prior to that date. Again, as the plaintiffs trespassed into the lands of the Government and raised paddy crop, the same were taken into Government custody. The plaintiffs obtained temporary injunction, by suppressing the real facts. The village Nacharam is in schedule area, where the assignment of the Government lands to non-tribals is prohibited vide G.O.Ms.No.971, dated 7.10.1969. Since the plaintiffs are non-tribals, the lands could not be given in lieu of the alleged submerged lands and therefore, they are not entitled to continue in possession of the Government lands. The averments made in the notice issued under Section 80 C.P.C., are inconsistent with the averments made in the suit, and accordingly prayed for dismissal of the suit.