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2007 DIGILAW 216 (AP)

Chavali Ranga Reddy v. Chavali Seshareddy

2007-02-28

V.V.S.RAO

body2007
Judgment :- The fourth defendant is the appellant (hereafter called, the fourth defendant). Respondents 1 and 2 herein filed O.S.No.224 of 1986 on the file of the Court of the Munsif Magistrate, Kamalapuram, for permanent injunction restraining respondents 3 to 5 herein (hereinafter called, the defendants 1 to 3) from interfering with possession and enjoyment of the suit schedule land and for a declaration that defendants 1 to 3 have no right to sell or deal in any manner the land covered by Panchayat Samithi Road in survey Nos.3, 3B, 4, 4/2B, 4/3B and 7 situated at Akkampet village of Kamalapuram Taluk in Kadapa District. On 03.08.1990, the suit, in which defendants 1 to 3 remained ex parte after filing the written statement, was decreed. The fourth defendant carried the matter to the Court of Subordinate Judge, Proddatur, which dismissed A.S.No.32 of 1990 on 07.07.1995. The land admeasuring Acs.0.12 cents in survey No.4/2B and 4/3B out of an extent of Acs.1.38 cents of Akkampet village is classified as Rasta Poramboke (passage way), which was in possession of the first plaintiff. Besides this, the plaintiff was also owner of extent of Acs.0.40 cents in 3/A.1 abutting the Panchayat road in survey Nos.4/2B and 4/3B, over which they claim right of ingress and egress. The fourth defendant is the owner of land in survey Nos.3/A and 8/3. He dug a water filter point in survey No.3/A and so as to take the water to his lands in survey No.8/3, he wanted to dig a channel all along the suit schedule passage way, in such a manner, that the channel would have passed between the land of the plaintiff and the suit schedule passage way or Rasta Poramboke. The fourth defendant, therefore, made an application to the second defendant, namely, the Mandal Revenue Officer (MRO) for permission. The latter, by communication, marked as Ex.A.3, recommended to the first defendant to sell the land to the fourth defendant for market value. In turn, the Revenue Divisional Officer (RDO) by Ex.A.4, communication, also agreed with the MRO. The fourth defendant then approached the first defendant i.e., the District Collector, who agreed for alienation of the land. In the said order, the first defendant also informed that a revision would lie before the Commissioner of Land Revenue (CLR) against his order. However, plaintiffs chose to file a suit seeking the relief as above. The fourth defendant then approached the first defendant i.e., the District Collector, who agreed for alienation of the land. In the said order, the first defendant also informed that a revision would lie before the Commissioner of Land Revenue (CLR) against his order. However, plaintiffs chose to file a suit seeking the relief as above. The second defendant filed written statement, which was adopted by defendants 1 and 3. They opposed the suit inter alia alleging that when the revenue authorities permitted the digging of the channel adjoining the Samithi Road as ordered by the first defendant, the remedy of the plaintiffs was to approach CLR, that the plaintiffs were in unauthorized occupation of the Government land and that they were not entitled for injunction. In the separate written statement, fourth defendant denied possession of plaintiffs in respect of Acs.0.12 cents in survey Nos.4/2B and 4/3B. He further contended that civil Court is not a proper form to adjudicate the matter and that the suit is bad for want of notice under Section 80 of the Code of Civil Procedure, 1908 (CPC). The parties have amended their pleadings subsequently. The trial Court initially framed one issue for trial but subsequently added two more. The first plaintiff examined himself as P.W.1 and the Mandal Development Officer was examined as P.W.2. Exs.A.1 to A.5 are marked. The fourth defendant came to the box as D.W.1 and marked Ex.B.1, which is the proceedings, dated 25.11.1983, passed by the Joint Collector. On consideration of the evidence, the trial Court came to the conclusion that the defendants have no right to restrain the right of way of the plaintiffs by digging a channel between the plaintiffs’ land and the public street and accordingly decreed the suit. The appellate Court further held that no person can be allowed to occupy a portion of the public road, a highway or the public path way taking a plea that such encroachment would not cause inconvenience to the public to pass by. The Appeal was also dismissed. In this Second Appeal, the learned counsel for Appellant/fourth defendant submits that the suit was filed under Section 91 of CPC without obtaining sanction of the Advocate General of the State, and therefore, not maintainable. The Appeal was also dismissed. In this Second Appeal, the learned counsel for Appellant/fourth defendant submits that the suit was filed under Section 91 of CPC without obtaining sanction of the Advocate General of the State, and therefore, not maintainable. Secondly, he submits that second plaintiff had no injury to seek redressal and he was nominally added and therefore, sub-section (2) of Section 91 of CPC would not save the suit. Thirdly, he would urge that the plaintiffs approached the civil Court without availing the remedy of revision before the CLR, and therefore, the suit suffers from incurable defect. Lastly, he would urge that the plaintiffs failed to prove damage or legal injury, and therefore, the Judgments of the Courts below are erroneous. He placed reliance on Ramabrahma Sastry v Lakshmi Narasimham ( 1956 ALT 492 ), Saraswatibai Trimbak Gaikwad v Damodhar D. Motiwale ( AIR 2002 SC 1568 ), Perumal Naicker v Rathina Naicker (AIR 2004 MADRAS 492) and Smt Parvathi Sahu v Ayyalasamayajulu Venkata Ramana ( 2004 (3) ALT 731 (DB). Learned counsel for the plaintiffs/respondents 1 and 2 herein submits that the suit schedule property is admittedly classified as Rasta Poramboke. Therefore, defendants 1 to 3 had no right, power or jurisdiction under any law to alienate the pathway in favour of a person nor any lease can be granted in favour of such person. He submits that the pathway or Rasta Poramboke is the only passage providing ingress and egress for the plaintiffs to go to their lands and if respondents 1 to 3 permit the fourth respondent to dig an irrigation channel all along the pathway, it would certainly cause obstructions for the plaintiffs to enjoy their rights to the agricultural land owned by them. Nextly, he would urge that the suit under Section 91(1)(b) of CPC would be maintainable by two or more persons for seeking redressal for a wrongful act even then no special damage has been caused. The remedy under Section 91(2) of CPC to the civil Court is not barred if there is any affect on the enjoyment of the right, in which event Section 91 of CPC has no application. The remedy under Section 91(2) of CPC to the civil Court is not barred if there is any affect on the enjoyment of the right, in which event Section 91 of CPC has no application. Lastly, he submits that the defendants 1 to 3 or defendant No.4 (appellant herein) never raised such a plea in the written statement before the trial Court or appellate Court or in the Memorandum of grounds on Second Appeal, and therefore, they are not entitled to succeed on such a ground. Whether plaintiffs proved the prejudice, they would suffer by action of defendants 1 to 3 in permitting the fourth defendant to dig the channel? This is not seriously disputed though some submissions are made by the learned counsel for the Appellant. Indeed as rightly pointed out by the learned counsel for plaintiffs, it is a question of fact and therefore, any further examination of the factual issue is plainly barred in the exercise of second appellate jurisdiction. The only question that requires consideration is whether the suit was maintainable by the plaintiffs having regard to Section 91 of CPC. Section 91 of CPC as it stood prior to amendment in 1976 reads as under. 91. Suits Relating to Public Matters: (1) In the case of a public nuisance the Advocate General, or two or more persons having obtained the consent in writing of the Advocate General, may institute a suit though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case. (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit, which may exist independently of its provisions. If a suit is to be maintainable under Section 91(1), the consent of the Advocate General is mandatory. That was the position. Though under Section 91(2) the independent right of the suit is not taken away. After amendment in 1976, Section 91 reads as under. 91. If a suit is to be maintainable under Section 91(1), the consent of the Advocate General is mandatory. That was the position. Though under Section 91(2) the independent right of the suit is not taken away. After amendment in 1976, Section 91 reads as under. 91. Public nuisances and other wrongful acts affecting the public:- (1) In the case of a public nuisance or other wrongful act affecting, or likely to affect the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted- (a) by the Advocate General, or (b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act. (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit, which may exist independently of its provisions. After amendment as above, the position is as follows. A suit for declaration and injunction or other appropriate relief can be instituted in the case of (i) a public nuisance; (ii) other wrongful act affecting or likely to affect the public. Such a suit can be instituted by two categories of persons, namely, the Advocate General of the State or, two or more persons even if no special damage is caused. In this case, there are two plaintiffs, and therefore, there is compliance with section 91(1)(b) of CPC. Even otherwise sub-section (2) of Section 91 of CPC does not take away the general right of every person to seek redressal in a civil Court if any right is affected. The plaintiffs’ case before the trial Court was that they were in possession of land admeasuring Acs.0.12, that the land in survey No.4/2b and 4/3b on the southern side of the land was being enjoyed as a road by all the villagers of Kuppuruvaripalli. Permission to fourth defendant for digging a channel would certainly affect their right to use the suit schedule property. Therefore, a suit under Section 91(2) of CPC is certainly maintainable even if a suit under Section 91(1)(b) of CPC is not maintainable. It is alleged the second plaintiff had no cause of action, but in respect of this there is no evidence at all on record. Therefore, a suit under Section 91(2) of CPC is certainly maintainable even if a suit under Section 91(1)(b) of CPC is not maintainable. It is alleged the second plaintiff had no cause of action, but in respect of this there is no evidence at all on record. Ramabrahma Sastry (supra) is a decision rendered prior to amendment of Section 91 of CPC by Central Act No.104 of 1976, with effect from 01.02.1977. The provision as it stood prior to amendment required sanction of Advocate General. As per the amended provision, no such sanction is required and independent locus is conferred on every person aggrieved by public nuisance or wrongful act to file a suit for declaration or injunction. In view of the above, Second Appeal is devoid of merits and is accordingly dismissed with costs.