( 1 ) HEARD Sri. P. R. Prasad, the learned counsel representing appellant-plaintiff and the standing counsel representing the respondents. ( 2 ) THE following substantial questions of law arise for consideration in the present Second Appeal: (a) Whether the Defendant being a local authority can deprive the plaintiffs property without paying any compensation. (b) Whether the acquisition of the property for laying the electrical lines and other connected wires without initiating proceedings under the Land Acquisition Act is valid. (c) Whether Section 12 (2) of Indian Electricity Act can be interpreted to mean that the Defendant has the authority to occupy the entire plot in its entirety without paying any compensation and whether Sec. 12 (2)applies only for laying electrical line running from one end to other. (d) Whether the burden of proof lies on the defendant to prove that their exists only one electrical lien which runs upto Konda Mallepally and that the defendant has not laid another line in the plot owned by the plaintiff. ( 3 ) SRI. P. R. Prasad, learned counsel representing the appellant, would maintain that it is no doubt true that in O. S. No. 1762 of 1989 on the file of the District Munsiff, Nalgonda, the relief of recovery of possession of an extent of land admeasuring 301. 7 Sq. yards with plot No. 61 out of S. No. 1473 situated at Arjaia Bhavi village, H/o Pangal of Nalgonda Revenue Mandal had been prayed for. But however the counsel would submit that in the light of the peculiar facts and circumstances, since even recovery of possession at this point of time may not serve any useful purpose, it would be just and convenient to order just and proper compensation in relation to the said property. The learned counsel also would maintain that this is a case where by the un-authorised action of the respondents the appellant is totally deprived of the property and thus the right to the property of the appellant-plaintiff is affected. The learned counsel had also taken this Court through the evidence of PWs. 1 and 2 and also DW. 1 and would submit that in the light of cross-examination of DW. 1 the findings recorded by the Courts below that the respondents had erected the poles etc. The learned counsel had also taken this Court through the evidence of PWs. 1 and 2 and also DW. 1 and would submit that in the light of cross-examination of DW. 1 the findings recorded by the Courts below that the respondents had erected the poles etc. , occupying the whole of the land long prior to the sale in favour of the appellant-plaintiff, definitely cannot be sustained. The learned counsel had taken this Court through the respective pleadings of the parties and the evidence available on record and findings recorded by the Court of first instance and also the Appellate Court as well. ( 4 ) PER contra, the learned standing counsel for Electricity Board, would maintain that in the light of concurrent findings recorded by both the Courts below, no substantial question of law as such is involved in the present Second Appeal and hence the said findings being factual findings may have to be confirmed by this Court and the Second Appeal is liable to be dismissed. ( 5 ) HEARD the learned counsel and perused the material available on record. ( 6 ) THE appellant herein as plaintiff filed the suit O. S. No. 1762 of 1989 on the file of the District Munsif, Nalgonda as against the respondents-defendants for recovery of possession of the plaint schedule property pleading as hereunder; the plaintiff is the owner and possessor of an extent of land measuring 301. 7 Sq. Yards with plot No. 61 out of S. No. 1473 situated at Arjaia Bhavi village H/o Pongal of Nalgonda Revenue Mandal. The plaintiff purchased this piece of land from one Konduri Narasaiah through a Registered document No. 2660 dt. 25. 6. 1984 for a consideration of Rs. 3,100/ -. Since the date of purchase the plaintiff was put in possession by her vendor Konduru Narasaiah. Earlier to her purchase, her vendor was in possession and enjoyment of the above piece of land hereinafter called as suit plot. The plot being a house site, plaintiff did not raise any structures and kept it as a vacant place. Somewhere in the month of January 1989, the defendant No. 1 and his staff erected one electric poll that connected 33 K. V. Wire and also planted stay wires in the suit plot spreading over the entire suit plot. Thus making it unfit for use. Somewhere in the month of January 1989, the defendant No. 1 and his staff erected one electric poll that connected 33 K. V. Wire and also planted stay wires in the suit plot spreading over the entire suit plot. Thus making it unfit for use. This plaintiff being lady, and confirmed to the household affairs, could not see the planting of the polls in her plot, till the month of April 1989. However, her husband has visited the suit plot in the month of April, 1989 and found that the said plot was found to be useless in view o the erection of electric poll and connecting 33 K. V. Wires, over the plot and also planting of stay wires in the suit plot and the entire suit plot was covered with the stay wires and defendants 1 to 3 have made it unfit for use for any purpose. Having felt the inconvenience, the plaintiff got issued a legal notice to the defendants calling upon them to remove the electrical poll in the suit plot and also claimed damages. The said notice was received by the defendants 1 to 3. Defendants 2 and 3 did not care to give any reply. However, defendant No. 1 gave a reply stating falsely that this 33 K. V. Electric Line was laid over the suit plot much before 1980 and further stated that the plaintiff is in know of things and it was further alleged that in spite of knowing that this plaintiff purchased the suit plot from Eonduri Narasaiah, and thereby disowned the liability. On receiving the said reply notice, the advocate of the plaintiff gave another notice calling upon the defendant No. 1 to furnish certain particulars while reserving the right of the plaintiff in filing this suit. The particulars that were sought by the plaintiff from the defendant No. 1 are that in which year the alleged electrical poll was erected in S. No. 1473 and the other particulars sought by the plaintiff are that whether any compensation was paid to the owner of the land, if so, what was the amount paid to the owner of the land. The plaintiff sought these particulars for not only giving an effective rejoinder notice, but also to know the truth or otherwise of the defendant Nos. 1s allegation, contained in the reply notice dt. 6. 5. 1989 in Proceedings Lr. The plaintiff sought these particulars for not only giving an effective rejoinder notice, but also to know the truth or otherwise of the defendant Nos. 1s allegation, contained in the reply notice dt. 6. 5. 1989 in Proceedings Lr. No. TS/nlg/t, D. No. 483/89, dated 6. 5. 89. However, defendant No. 1 did not choose to give any reply to the said notice given by the plaintiff advocate. Having vexed with the attitude of the Electricity Board, again got issued another legal notice on 17. 8. 1989, calling upon the defendants 1 to 3, to hand over the possession of the suit plot forthwith, after receiving of the notice. Defendants 1 to 3 have received the legal notice, but they did not choose to give any reply to the said notice. The plaintiff lost her possession over the suit plot technically in the month of April 1989. As a owner of the land, the plaintiff is entitled to receive the suit plot from the defendants. The plaintiff is advised to submit that defendants 1 to 3 did not initiate any proceedings under Land Acquisition Act and acquiring the suit plot for the purpose of laying the electrical poll and 33 K. V. lines over it. Therefore, the plaintiff is entitled to sue the defendants for the relief of recovery of possession and the defendants are liable to answer. The plaintiff hereby reserves her right to file a separate suit for damages, as the defendants have unauthorisedly occupied the suit plot. ( 7 ) THE respondents herein as defendants filed written statement denying the allegations. It was pleaded in the written statement as hereunder: that the contents of Para No. 3 of the plaint specifically denied. This defendant is not aware of the sale transaction between the plaintiff and one Konduru Narasaiah till the date of first notice issued by the plaintiff. It is quite false that the said land is a vacant site on the date of purchase and that the plaintiff is in possession and enjoyment of the said plot. It is not true that in the month of January 1989. This defendant erected one electric poll that connected 33 KV wire and planted stray wires. The so called visit by the husband of the plaintiff in the month of April 1989 is concocted by the plaintiff. It is not true that in the month of January 1989. This defendant erected one electric poll that connected 33 KV wire and planted stray wires. The so called visit by the husband of the plaintiff in the month of April 1989 is concocted by the plaintiff. This defendant denies about the delivery of physical possession of the land to the plaintiff and her possession and enjoyment over the same. The so called sale transaction between the plaintiff and Konduri Narasaiah is only on paper but no consideration was paid by the plaintiff and no possession was delivered to the plaintiff is put to strict proof of her allegations. It is fact that the plaintiff got issued a legal notice and upon that this defendant suitably replied stating the facts. Again the plaintiff got issued a notice stating that she is taking steps against the department for existing supply lines in her plot. And she demanded for some particulars, which are not at all relevant, and she ought to have sought the particulars from her vendor. As such the department did not choose to reply as it is unnecessary. That the averments of para No. 4 of the plaint are specifically denied. It is quite false that the plaintiff lost possession in the month of April 1989 and that she is entitled to recover possession of the land. More over the plaintiff is not owner of the land at the time of erection of electric poles and as such she is not entitled for any compensation or recovery of possession of the land. ( 8 ) THE following issues were settled on the strength of the pleadings of the parties before the Court of first instance. 1. Whether the plaintiff is entitled for recovery of possession of the suit land? 2. To what relief? ( 9 ) THE evidence let-in before the Court of first instance: PW1 plaintiff and PW2 vendor of the plaintiff were examined and Exs. A1 to A6 were marked. Likewise, DW1-the Assistant Divisional Engineer (Operation), APSEB was examined and Exs. B1 and B2 were marked. The Court of first instance, after recording findings, ultimately, dismissed the suit. To what relief? ( 9 ) THE evidence let-in before the Court of first instance: PW1 plaintiff and PW2 vendor of the plaintiff were examined and Exs. A1 to A6 were marked. Likewise, DW1-the Assistant Divisional Engineer (Operation), APSEB was examined and Exs. B1 and B2 were marked. The Court of first instance, after recording findings, ultimately, dismissed the suit. Aggrieved by the same, the plaintiff carried the matter by way of appeal as A. S. No. 38 of 1994 on the file of District Court, Nalgonda and the Appellate Court at para-6 framed the following point for consideration: whether, as alleged by the plaintiff, the electric pole was fixed and 33 K. V. line was laid in April 1989? the appellate Court also had recorded the same findings, which had been recorded by the Court of first instance and ultimately dismissed the appeal. Aggrieved by the same, the present Second Appeal is preferred. ( 10 ) ON a careful scrutiny of the evidence available on record, it is clear that findings had been recorded by both the Courts below that the electric poles and 33 KV line had been in existence even by the date of the sale deed Ex. A6 dated 20. 6. 1984. PW1 the plaintiff deposed in detail that she purchased the property of an extent of 300 and odd sq. yards in the year 1984 for Rs. 3,100/- and after purchase for a period of 2 or 3 years, she was not at Nalgonda and taking advantage of her absence, the defendants erected electric poles fixed with 33 KV line by covering her entire plot. PW1 also deposed that she had issued a notice to vacate her plot and the defendants had issued a rely and again she had issued yet another notice, for which no reply and again she had issued yet another notice, for which no reply was given. PW1 also deposed that due to the existence of electric poles and 33 KV line, she cannot construct anything in the said plot since the entire plot was covered by the same. She also specifically deposed that the defendants did not issue any notice prior to the erection of the pole nor acquired her plot and hence she prays for a decree for recovery of possession. Ex. A1 is the office copy of notice dated 12. 4. 1989 and Ex. She also specifically deposed that the defendants did not issue any notice prior to the erection of the pole nor acquired her plot and hence she prays for a decree for recovery of possession. Ex. A1 is the office copy of notice dated 12. 4. 1989 and Ex. A2 reply notice dated 6. 5. 1989. Ex. A3 is yet another notice dated 17. 8. 1989 and Ex. A4 is yet another legal notice. Ex. A5 is the positive photos with negatives. Ex. A6 is the registered sale deed dated 20. 6. 1984. She was cross-examined. PW. 2 also was examined, who deposed that there were no electric poles in the suit property by the date he sold the suit property to the plaintiff through GPA. This witness also was cross-examined. ( 11 ) AS against this evidence, the evidence of DW1 is available on record. DW. 1 deposed that the electrical lines were erected through the site of the plaintiff prior to 1979 before commencing sub-station at Nalgonda. This witness also deposed that he is filing District statistical data as on 31. 3. 1992 prepared by S. C. Operation, Nalgonda showing all the electrical sub-stations and the services at Nalgonda District. At page 3 of the said book, it is shown when the sub-station was started i. e. on 25. 3. 1979. It is Ex. B2. DW. 1 also deposed that no electric poles were erected in connecting to the sub-station of Nalgonda in 1984. The cross-examination of this witness is very essential to appreciate whether the Courts below had recorded findings in accordance with the evidence on record. This witness in cross-examination deposed that he was not in-charge of the sub-station at Nalgonda in the year 1989 and he did not ask for any particulars by addressing notice to DE, APSEB, Nalgonda and hence those were not furnished. Ex. A2 is the letter addressed by their Department to the plaintiff. This witness also deposed that they filed only Ex. B1 and except that no other documents were filed. This witness further deposed, it is true that they prepared statistical data every year and prior to 1980 the Nalgonda circle fell under the jurisdiction of Khammam and the book filed before the Court does not show through which survey number the electric poles are passing. B1 and except that no other documents were filed. This witness further deposed, it is true that they prepared statistical data every year and prior to 1980 the Nalgonda circle fell under the jurisdiction of Khammam and the book filed before the Court does not show through which survey number the electric poles are passing. They prepared geological survey map at the time of erection of lines except that there will not be any record available with their department to show that through which survey number the electric lines are passing. This witness further deposed that after the year 1984 no new lines of 33 KV from the sub-station of Nalgonda in 33 KV category had been erected. They are having documents as to existence of lines from sub-station but he has not filed those documents before this Court. This witness also deposed that there is no necessity to take permission of any private land owner before erecting poles through the land under Telegraphic and Electric Lines Act. The witness also referred to the above said Acts. This witness also deposed that it is not true that the Electricity Board has to take consent of the pattadar of the land before laying electric lines under Section 12 of the Indian Electricity Act, 1910. This witness deposed that he does not know to whom the suit land belongs and the plaintiff is its owner and he is not the person who signed on the written statement and he does not know the contents of the written statement filed before the Court. He is not the person who prepared the book filed before the Court but the book was prepared basing on the information furnished by them. There is nothing in the book to show that the book was prepared basing on the information provided by them. Certain other suggestions had been denied. ( 12 ) ON the strength of this evidence the Courts below recorded findings that in the light of the evidence of DW. 1, it may be inferred that the poles and the line which had totally occupied the plot of the appellant were in fact in existence even prior to Ex. A. 6 sale deed executed in her favour and hence she is not entitled to recovery of possession. This is the approach which had been adopted by both the Courts below. The evidence of DW. A. 6 sale deed executed in her favour and hence she is not entitled to recovery of possession. This is the approach which had been adopted by both the Courts below. The evidence of DW. 1 had been discussed in detail supra. As per the evidence of DW. 1 it is clear the best evidence which could have established this fact had not been produced and for the reasons best known to them the persons concerned with the same had not been examined. ( 13 ) AS against this evidence, the evidence pf PWs. 2 and 3 is available on record. PW. 2 the vendor specifically deposed that on the date of sale under Ex. A6 such poles were not in existence at all. It is a case where a citizen was deprived of the property and no doubt the stand taken by the appellant-plaintiff is that she was deprived of this property without taking recourse to law. ( 14 ) THE stand taken by the respondents-defendants is that they are entitled to do so by virtue of certain statutory provisions. Section 42 of the Electricity (Supply) Act 1948, dealing with powers reads as hereunder: section 42: Powers to Board for placing wires, poles, etc:- (1) Notwithstanding anything contained in Secs. 12 to 16 and 19 of the Indian Electricity Act, 1910 (9 of 1910), but without prejudice to the requirements of Section 17 of that Act where provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall-brackets, stays apparatus and appliances of the transmission and distribution of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act, 1885 (13 of 1885) with regard to a telegraph established or maintained by the Government or to be so established or maintained. Provided that where a sanctioned scheme does not make such provisions as aforesaid, all the provisions of Sections 12 to 19 of the first mentioned Act shall apply to the works of the Board. Provided that where a sanctioned scheme does not make such provisions as aforesaid, all the provisions of Sections 12 to 19 of the first mentioned Act shall apply to the works of the Board. 1{ (2) A Generating Company may, for the placing of wires, poles, wall-brackets, stays apparatus and appliances for the transmission of electricity, or for the transmission of telegraphic or telephone communication necessary for the proper co-ordination of the works of the Generating Company, exercise all or any of the powers which the Board may exercise under sub-section (1) and subject to the conditions referred to therein} section 12 of the Indian Electricity Act, 1910 (Act 9 of 1910) dealing with the provisions of the opening of the street, railway, tramways as hereunder: section-12: Provisions as to the opening and breaking up of streets, railways and tramways: (1) any licensee may, from time to time but subject always to the terms and conditions of his licence within the area of supply, or when permitted by the terms of his licence to lay down or place electric supply lines without the area of supply, without that area: (a) open and break up the soil and pavement of any street, railway or tramway; (b) open and break up any sewer, drain or tunnel in or under any street, railway or tramway; (c) lay down and place electric supply-lines and other works; (d) repair, alter or remove the same; and (e) do all other acts necessary for the due supply of energy. (2) Nothing contained in sub-section (1) shall be deemed to authorize or empower license, without the consent of the local authority or of the owner or occupier concerned, as the case may be, to lay down or place any electric supply-lane, or other work in, through or against any building, or on, over or under any land not dedicated to public use whereon, whereover or whereunder any electric supply-line or work has not already been lawfully laid down or place by such licensee. According to the language employed in the said provisions under Section 12 (2) of Indian Electricity Act, when carefully read along with Section 42 of the Electricity Supply Act, it cannot be said that respondents-defendants can deprive the plaintiff of her right to property in toto without following the procedure specified by the aforesaid statutory provisions. ( 15 ) IN H. Bhadur Singh Vs. ( 15 ) IN H. Bhadur Singh Vs. Divisional Engineer APSEB (1991 (1) (SN) APLJ-32) WP. No. 10327 of 1990 dated 27. 11. 1990: It was held: by virtue of Section of 42 of the Electricity Supply Act vesting in the Board the power possessed by the telegraphic authority the Board for the limited purpose of erecting a transmission line is not obliged to acquire any land belonging to any person notwithstanding the provisions of Sections 12, 16, 18 and 19 of the Indian Electricity Act. When the Board has got ample power to lay the lines for public purpose and in public interest without recourse to the provisions of the Land Acquisition Act the petitioner has no right to question the same in writ proceedings under Article 226 of the Constitution. ( 16 ) IT is no doubt true that right to property is no longer a fundamental right, but however it is an ordinary legal right, it is pertinent to note that when a person is deprived of the total property like in the present case it cannot be said that by virtue of Section 42 of the Act aforesaid, the plaintiff-appellant can be deprived of the property without payment of any compensation whatsoever. It is no doubt true that the plaintiff in the present suit prayed for recovery of possession of the property. However, as per the stand taken by the learned counsel, the recovery of possession of the property in the present suit would be of no consequence at all, since the property virtually became useless by virtue of the erection of the pole and 33 KV line. It is also pertinent to note that the appellant-plaintiff was deprived of the total property and when that being so in the light of the vague evidence of DW. 1. who was unable to state anything about the particulars, the findings recorded by both the Courts below to the effect that this erection was long prior to 1982 i. e. Ex. A. 6 sale deed definitely cannot be sustained. The said findings had been recorded definitely on mis-appreciation of the evidence available on record and hence the said findings cannot be confirmed. Apart from this aspect of the matter, when the respondents-defendants had deprived appellant of the total property, the plot in question, the plaint schedule property, the appellant-plaintiff is entitled to just, proper, compensation in this regard. The said findings had been recorded definitely on mis-appreciation of the evidence available on record and hence the said findings cannot be confirmed. Apart from this aspect of the matter, when the respondents-defendants had deprived appellant of the total property, the plot in question, the plaint schedule property, the appellant-plaintiff is entitled to just, proper, compensation in this regard. It is no doubt unfortunate that such relief was not prayed for by the appellant-plaintiff on the ground that she had been deprived of the property un-authorisedly and without following the procedure as specified by the statutory provisions referred to supra. But, however, the relief of recovery of possession simplicitor had been prayed for and both the Courts below had negatived the same. ( 17 ) IN the light of the foregoing discussion and the view expressed by this Court that the findings recorded by the Courts below that the erection of the pole and 33 KV line was long prior to even Ex. A6 came into existence cannot be sustained in the light of the appreciation of the evidence and inasmuch as only the relief of recovery of possession had been prayed for. It would be just and proper to remand the matter to the Court of first instance. It is made clear that the appellant-plaintiff is given liberty to suitably amend the pleadings praying appropriate reliefs in this regard. The parties also are at liberty to adduce further evidence if any only on the limited question of quantum of compensation or damages which may be payable to the appellant-plaintiff in this regard. Accordingly, the Judgments and Decrees of the Courts below are hereby set aside and the matter is remanded to the Court of first instance to afford an opportunity to let-in evidence to the limited extent as indicated supra. The Second Appeal is allowed to the extent indicated above. No order as to costs.