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2025 DIGILAW 2 (AP)

Chairman APSRTC Hyd v. Mallidi Kanikireddy

2025-01-02

T.MALLIKARJUNA RAO

body2025
JUDGMENT : 1. This Second Appeal, under section 100 of Code of Civil Procedure, 1908 (for short, 'C.P.C'), has been filed by the Appellants/Respondents 1 to 4/Defendants against the Decree and Judgment dated 30.10.2002, in A.S.No.27 of 2001 on the file of Senior Civil Judge, Kothapeta, East Godavari District (for short, ‘the 1st Appellate Court’) reversing the decree and Judgment dated 10.09.1998, in O.S.No.82 of 1990 (Old O.S.No.101 of 1988)) on the file of Junior Civil Judge, Kothapeta (for short, ‘the trial Court’). 2. Respondents 1 to 3 are the Plaintiffs, who filed the suit in O.S.No.82 of 1990 (Old O.S.No.101 of 1988) seeking a declaration of the easementary right of the plaintiffs on the west of their shops through in-gate and outgate of the bus station for ingress and egress of the Plaintiffs and their men and for consequential permanent injunction restraining the Defendants from constructing a wall along with shops of the Plaintiffs on the western side. 3. Referring to the parties as they are initially arrayed in the suit is practical to mitigate confusion and better comprehend the case. 4. The factual matrix, necessary and germane for adjudicating the contentious issues between the parties inter se, may be delineated as follows: The Plaintiffs filed a plaint plan outlining the location of their property, pathway, the Defendants’ site, and a bus station. The Plaintiffs’ father purchased the land in 1969 through a registered sale deed, and since then, the Plaintiffs and their family have enjoyed the property. Following the father's intestate death in 1981, the Plaintiffs, as his sole legal heirs, have jointly enjoyed the property. To the west of the Plaintiffs’ land is a puntha, classified as a cart track, which was recently given to APSRTC by the Gram Panchayat for a bus station. The lane adjacent to the Plaintiffs' land has been used by them and their predecessors as a right of way for ingress and egress, as reflected in the Revenue Records. The Defendants are bound by this right of way, which also extends to the north and south. The Plaintiffs obtained approval from the Gram Panchayat to construct a shopping complex on their site. The western side of this complex has been used as a right of way for ingress and egress. However, two days ago, the Defendants attempted to construct a compound wall along the Plaintiffs’ property, which would block this access. The Plaintiffs obtained approval from the Gram Panchayat to construct a shopping complex on their site. The western side of this complex has been used as a right of way for ingress and egress. However, two days ago, the Defendants attempted to construct a compound wall along the Plaintiffs’ property, which would block this access. The Plaintiffs successfully resisted this construction and were assured by the Defendants that no harm would come to their pathway. Nonetheless, the Plaintiffs have reliably learnt that the Defendants intend to proceed with the wall, which would obstruct their right of way. 5. The 1st Defendant filed a written statement, adopted by Defendants 2 to 4, denying the plaint's allegations. They claim the plaint plan is incorrect and does not accurately depict the properties. The Defendants deny the existence of any pathway rights as claimed by the Plaintiffs and dispute the ownership details in the 1969 sale deed. They assert that they were lawfully allotted Ac.0.66 cents in R.S.No.211 and Ac.0.60 cents in R.S.No.212/4.B of Ravulapalem village by the Government, with no objections raised. The Defendants assert that any prior pathway rights were extinguished upon converting agricultural land into residential sites. They further state that constructing a compound wall is necessary to protect the bus station complex, and the Plaintiffs cannot prevent it. The Defendants also assert the suit is defective due to a misjoinder of parties and improper valuation, requesting its dismissal. 6. Based on the above pleadings, the trial Court has framed the following issues: i. Whether the plaint plan is correct? ii. Whether the Plaintiffs are not entitled to a declaration of easementary rights of passage as prayed for in the plaint? iii. Whether the Plaintiffs are entitled to the permanent injunction as prayed for? iv. Whether the suit is bad for misjoinder of parties? v. Whether the suit is properly valued and the Court fee paid is correct? vi. Whether the suit as framed is not maintainable? vii. To what relief? 7. During the trial, PWs.1 and 2 were examined and marked Exs.A.1 to A.3 on behalf of the Plaintiffs. Conversely, DWs.1 and 2 were examined on behalf of the Defendants, and Exs.B.1 to B.9 were marked. 8. After completing the trial and hearing the arguments of both sides, the trial Court dismissed the suit with costs. 9. To what relief? 7. During the trial, PWs.1 and 2 were examined and marked Exs.A.1 to A.3 on behalf of the Plaintiffs. Conversely, DWs.1 and 2 were examined on behalf of the Defendants, and Exs.B.1 to B.9 were marked. 8. After completing the trial and hearing the arguments of both sides, the trial Court dismissed the suit with costs. 9. Aggrieved by the same, the 1st Plaintiff filed an Appeal in A.S.No.27 of 2001 on file of the 1st Appellate Court. The 1st Appellate Court, being the final fact-finding Court, framed the following point for consideration: Whether the Appellant is entitled to set aside the decree and Judgment of the lower Court in O.S.No.82 of 1990 (old No.101/1988), dated 10.09.1998? 10. The 1st Appellate Court, after scrutinizing the oral and documentary evidence from both parties, allowed the Appeal without costs and set aside the trial Court's decree and Judgment in O.S. No. 82 of 1990. The 1st Appellate Court granted the Plaintiffs' easementary right to use the western side of their shop through the bus station's outgate for ingress and egress. The 1st Appellate Court also granted a permanent injunction, restraining the Defendants from constructing a wall along the western side of the Plaintiffs' shops. The 1st Appellate Court also directed the plaintiffs and their associates not to obstruct buses passing towards the outgate by placing vehicles. 11. Heard Sri. Vinod Kumar Tarlada, learned Standing Counsel for APSRTC representing the Appellants/Defendants and Sri M. Sri Atchyut, learned Counsel representing the Respondents/Plaintiffs. 12. The Learned Counsel for the Appellants asserts that the 1st Appellate Court failed to notice that about 50 years ago, the lands in question, including R.S.No.211, were agricultural, with no longer existing cart track. The Plaintiffs cannot claim an easementary right of way over R.S.No.211, given the existence of a public road adjacent to their shopping complex. The 1st Appellate Court overlooked that the shopping complex site was vacant until December 1984, and no easementary right arose before then. Furthermore, there was no prescription evidence, and the Plaintiffs' claim relied solely on their statements. The 1st Appellant Court wrongly stated that the Defendants failed to object during the construction of the complex, despite the Plaintiffs' acknowledgement that the Defendants were aware of the building plan. Furthermore, there was no prescription evidence, and the Plaintiffs' claim relied solely on their statements. The 1st Appellant Court wrongly stated that the Defendants failed to object during the construction of the complex, despite the Plaintiffs' acknowledgement that the Defendants were aware of the building plan. The 1st Appellant Court also erred in asserting that the Defendants allowed the Plaintiffs to use the site as a pathway and accept additional evidence (Ex.A.4) without justification for its earlier non-production. 13. Per contra, learned Counsel for the Respondents contends that the 1st Appellate Court evaluated the facts of the case and reached the correct conclusions. The reasons given by the 1st Appellate Court do not require any modifications. 14. Based on the Appellants’ contentions, the following substantial question of Law is involved in this Second Appeal: Whether the 1st Appellate Court is justified in reversing the Judgment of the trial Court while holding that the Plaintiffs have established their Easementary right of way through the site covered by R.S.No.211 of Ravulapalem village, East Godavari District, in view of the evidence on record notably when the entire nature of the land underwent drastic change? 15. Before delving into the matter, since the Appeal is filed under Sec.100 of C.P.C., this Court must see the scope of Section 100 of C.P.C. 16. In H.P.Pyarejan V. Dasappa (dead) by L.Rs. and others, 2006 (3) ALT 41 (SC), the Hon’ble Supreme Court held that: Under Section 100 of the Code (as amended in 1976), the jurisdiction of the High Court to interfere with the judgments of the Courts below is confined to hearing on substantial questions of Law. Interference with the finding of fact by the High Court is not warranted if it involves re-appreciation of evidence (see Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 713 ) and Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438 )…… 17. Considerations in Section 100 of C.P.C. arise only when there is a substantial question of Law and not merely such questions of Law or one based on facts. However, it has to be borne in mind that in case of misapplication of Law and improper appreciation of evidence on record, particularly the documentary evidence, it is the bounden duty of the High Court sitting in Second Appeal to consider such questions which are substantial in terms of Law. 18. However, it has to be borne in mind that in case of misapplication of Law and improper appreciation of evidence on record, particularly the documentary evidence, it is the bounden duty of the High Court sitting in Second Appeal to consider such questions which are substantial in terms of Law. 18. In the Second Appeal, while exercising jurisdiction under Section 100 of the C.P.C., this Court must confine itself to the substantial questions of Law involved in the Appeal. This Court cannot re-appreciate the evidence and interfere with the findings of the Courts below, where the Courts below recorded the findings judicially by appreciating both oral and documentary evidence. Further, a substantial question of Law is the sine qua non for the exercise of jurisdiction. This Court cannot substitute its own opinion unless the findings of the Courts below are manifestly perverse and contrary to the evidence on record. 19. As established by the judgments of both the Courts and the evidence adduced by both parties, the following facts are either admitted or undisputed: Through resolution Ex.B.6 dated 27.06.1977, the Grama Panchayat requested the District Collector of East Godavari to transfer the schedule land to APSRTC. In response, the District Collector issued letter Ex.B.7 on 07.11.1988 to the Secretary of the Government of Andhra Pradesh seeking further clarifications. Additionally, Ex.B.9, a letter from the Tahsildar of Kothapeta to the District Collector of East Godavari, confirms that the land in R.S.No.211 was sub-divided and assigned a new number, R.S.No.211/2. The Government, through G.O.Ms.No.239 Revenue (G) Department dated 11.03.1997, alienated the site in R.S.No.211, the subject of this suit, comprising an area of Ac.0.66 cents, along with the site in R.S.No.212/4B, to the Defendant Corporation for the construction of the RTC bus complex, as evidenced by Ex.B.3, a gazette extract. This alienation was made specifically to create an approach road to the APSRTC bus stand, and Defendants Corporation duly paid the required consideration for the acquisition. The Defendants hold absolute ownership of the disputed land in R.S.No.211, which is classified as poramboku puntha. The land was formally taken into possession by the Junior Engineer on behalf of the APSRTC, as per Ex.B.8. The Defendants have also produced the relevant correspondence between the Government and APSRTC regarding this alienation, including documents Exs.B.1 to B.5, all of which are undisputed in terms of their content and the transaction between the parties. The land was formally taken into possession by the Junior Engineer on behalf of the APSRTC, as per Ex.B.8. The Defendants have also produced the relevant correspondence between the Government and APSRTC regarding this alienation, including documents Exs.B.1 to B.5, all of which are undisputed in terms of their content and the transaction between the parties. It is not the Plaintiffs' contention that the Government failed to adhere to the necessary formalities in alienating the land, nor are they disputing the Defendants' ownership of the land in R.S.No.211, which amounts to Ac.0.66 cents. 20. The trial Court dismissed the suit, providing specific reasons for its decision. However, the trial Court's findings on certain issues, which were decided against the Defendants, have not been contested either before the 1st Appellate Court or this Court. 21. The trial Court addressed Issue No.1 by determining that the Defendants failed to prove that the plaint plan was incorrect. Furthermore, the trial Court concluded that the suit was not defective due to a misjoinder of parties, that the suit had been properly valued, that the court fee paid was accurate, and that the suit, as framed, was maintainable. 22. The 1st Plaintiff (Mallidi Kanikireddi), as PW.1, testified that their father purchased the site in 1969 through a registered sale deed. PW.1’s testimony regarding the death of his father in 1981 and the joint enjoyment of the plaint schedule property by the Plaintiffs is not disputed. The Plaintiffs' claim that they constructed a shopping complex on the land purchased by their father is also not in dispute. However, the trial Court discarded the evidence of PW.1 and PW.2 (Tarakagadda Daniel) for specific reasons. The trial Court observed that if the land was truly classified as cart-track puntha at the time of the Plaintiff's father's purchase in 1969, the sale deed should have mentioned that the western boundary of the site was a cart-track puntha or a pathway for ingress and egress. However, the Plaintiffs failed to produce this document in Court, and the trial Court drew an adverse inference against the Plaintiffs' case. In this regard, the 1st Appellate Court noted that the Plaintiffs failed to produce any documentary evidence in the trial Court to substantiate their claim, leading the learned Junior Civil Judge to conclude that the Plaintiffs did not present any evidence to prove the existence of a cart-track. 23. In this regard, the 1st Appellate Court noted that the Plaintiffs failed to produce any documentary evidence in the trial Court to substantiate their claim, leading the learned Junior Civil Judge to conclude that the Plaintiffs did not present any evidence to prove the existence of a cart-track. 23. As observed in the Judgment of the 1st Appellate Court, the Plaintiffs marked Ex.A.4, a certified copy of the registered sale deed, in the Appeal as per the orders in I.A.No.202 of 2001. The 1st Appellate Court noted that Ex.A.4 establishes the existence of a puntha on the western side of the site where the shopping complex was constructed. The 1st Appellate Court further observed that since the shops in the complex face the side of the west, the public must enter through this puntha. The 1st Appellate Court rightly concluded that Ex.A.4 demonstrates that the western boundary of the site is a pathway for ingress and egress to the Plaintiffs' land, thereby establishing their easementary right of way through the land in R.S.No.211 of Ravulapalem village, which was classified as cart-track bodhi. The 1st Appellate Court also noted that without this pathway, there would be no access to the shops on the western side of the complex if the Defendants had constructed the compound wall. 24. As evident from Ex.A.3, the approved building plan dated 17.12.1984 for the proposed building of the 1st Plaintiff is a specific mention of a puntha on the western side of the shopping complex, which the Gram Panchayat approved. The 1st Appellate Court relied on this approval to conclude that the Gram Panchayat had acknowledged the puntha's existence on the shopping complex's western side. Similarly, Ex.A.2, another approved building plan from the same date, also explicitly mentions the puntha's presence on the complex's western side. Consequently, the 1st Appellate Court rightly observed that the puntha indeed exists on the west side of the site where the shopping complex was built. Based on the evidence adduced, the 1st Appellate Court further concluded that the Plaintiffs had established their easementary right of way through the land in R.S.No.211 of Ravulapalem, over which the Defendants intended to construct a compound wall. 25. Based on the evidence adduced, the 1st Appellate Court further concluded that the Plaintiffs had established their easementary right of way through the land in R.S.No.211 of Ravulapalem, over which the Defendants intended to construct a compound wall. 25. The trial Court erroneously concluded that the Government's act of alienating the land to the Defendants indicated that the puntha, which is classified as cart-track bodhi in Ex.A.1 (certified copy of the settlement register of Ravulapalem village), had lost its significance. However, the trial Court also made a finding favourable to the Plaintiffs regarding the existence of the puntha, as per the Ex.A.1 settlement register, contradicting its earlier observation. 26. In Gadde Venkata Lakshmamma v. The State of Andhra Pradesh, MANU/AP/0742/2021, this Court held that a Donka poramboke leads from Kondapur to Kavali in Nellore District, over which a black-topped public road of 20 feet width was laid about 50 to 60 years back. Between the petitioner's land and the blacktopped road, there is a road margin used by the petitioner and others for ingress and aggression to reach their lands. When the Tahsildar proposed to assign the site earmarked as road margin to the 5th respondent and his henchmen as house site, the petitioner filed the writ petition. The learned Judge of this Court, relying upon the Supreme Court judgment in Jagpal Singh v. State of Punjab [Civil Appeal No.1132/2013 @ SLP No.3109/2011 held that even if the land is vested with the Government, it does not mean the villagers lost the right of common usage which they are entitled to protection. 27. In Jagpal Singh v. State of Punjab, (2011) 11 SCC 396 , the Hon’ble Apex Court referred the decision in Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496 (followed by the Madras High Court in L. Krishnan v. State of T.N., (2005) 4 CTC 1 (Mad)) held that land recorded as a pond must not be allowed to be allotted to anybody to construct a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied after taking away the house's materials. 28. The learned counsel for the Appellants asserts that the puntha (cart-track bodhi) used by the public can be considered communal property. The Court ordered the respondents to vacate the land they had illegally occupied after taking away the house's materials. 28. The learned counsel for the Appellants asserts that the puntha (cart-track bodhi) used by the public can be considered communal property. This Court finds merit in the Appellants' contention that even if the Government alienated the property, including the puntha, to the Defendants Corporation, such alienation does not automatically extinguish the rights of the community over it. The Defendants appear to have constructed a shopping complex on part of the property they purchased and now intend to build a compound wall, which would obstruct the Plaintiffs' and others' right to pass through the cart-track bodhi. The settlement register Ex.A.1 and the sale deed filed by the Plaintiffs (Ex.A.4) from 1969 confirm the pathway's existence. It is important to note that it is not the Defendants' case that these recitals were made in Ex.A.4 solely for this suit. Additionally, the suit was filed in 1988, 19 years after the execution of the registered sale deed. 29. The 1st Appellate Court, after recording proper reasons, set aside the trial Court’s findings. This Court needs to reproduce all the reasons recorded by the 1st Appellate Court to come to such conclusion. As previously noted, the trial Court failed to consider the Plaintiffs' case adequately, having drawn an adverse inference due to the Plaintiffs' failure to produce the sale deed. However, the 1st Appellate Court allowed the Plaintiffs to submit the sale deed, which corroborates the existence of the cart-track bodhi. Despite filing the Ex.A.1 settlement register, the trial Court did not uphold the Plaintiffs' contention regarding the existence of the cart-track bodhi. 30. The 1st Appellate Court is empowered to exercise powers and perform nearly the same duties as the original jurisdiction courts. Therefore, the 1st Appellate Court has the power to return findings of fact and Law. In so returning the finding, it can impliedly overturn the findings of the Court of First Instance if it is against the evidence on record or is otherwise based upon an incorrect interpretation of any document or misconstruction of any evidence adduced before the Court of First Instance. 31. In so returning the finding, it can impliedly overturn the findings of the Court of First Instance if it is against the evidence on record or is otherwise based upon an incorrect interpretation of any document or misconstruction of any evidence adduced before the Court of First Instance. 31. The findings of the fact recorded by the 1st Appellate Court are based on the appreciation of both oral and documentary evidence unless the Appellant demonstrates that substantial question of Law involved in the Second Appeal, interference of this Court with the judgments rendered by the trial Court as well as the 1st Appellate Court in the exercise of jurisdiction under section 100 of C.P.C., is not warranted. 32. For the reasons outlined above, this Court discerns no infirmity, much less perversity or illegality, in the Judgment rendered by the learned 1st Appellate Court. The findings and reasoning provided by the 1st Appellate Court align with established legal principles. The 1st Appellate Court meticulously reviewed all the evidence on record, omitting nothing pertinent, nor did it consider any extraneous material. 33. Regarding the scope of section 100 CPC, the Hon’ble Apex Court in Hero Vinoth V. Seshammal, AIR 2009 SC 1481 , held that: 19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact, being the first appellate Court. Indeed, the lower appellate Court should not ordinarily reject witnesses accepted by the trial court regarding credibility. Still, even where it has rejected the witnesses accepted by the trial court, there is no ground for interference in the second Appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where two inferences of fact are possible from a given set of circumstances, one drawn by the lower appellate Court will not be interfered with by the High Court in the second Appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate Court were erroneous, being contrary to the mandatory provisions of Law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. 24. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate Court were erroneous, being contrary to the mandatory provisions of Law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. 24. The principles relating to Section 100 CPC, relevant to this case, maybe summarised thus:- (i) ……….. (ii) The High Court should be satisfied that the case involves a substantial question of Law and not a mere question of Law. A question of Law having a material bearing on the decision of the case (that is, a question answer to which affects the rights of parties to the suit) will be a substantial question of Law if it is not covered by any specific provisions of Law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of Law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of Law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of case, the substantial question of Law arises not because the Law is still debatable but because the decision rendered on a material question violates the settled position of Law. 34. The Hon’ble Supreme Court in Randhir Kaur v. Prithvi Pal Singh and Ors., MANU/SC/0974/2019, held that: 16. A perusal of the judgments, as mentioned earlier, would show that the jurisdiction in the second Appeal is not to interfere with the findings of fact on the grounds that findings are erroneous, however gross or inexcusable the error may seem. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second Appeal is only where there is an error in Law or procedure, not merely an error on a question of fact. 35. In these circumstances, upon consideration of the decree and Judgment of the 1st Appellate Court, this Court is satisfied that the arguments presented pertain solely to the factual matrix and do not involve any substantial question of Law. The Appellant has not raised any legal issues in this Second Appeal that warrant consideration. 35. In these circumstances, upon consideration of the decree and Judgment of the 1st Appellate Court, this Court is satisfied that the arguments presented pertain solely to the factual matrix and do not involve any substantial question of Law. The Appellant has not raised any legal issues in this Second Appeal that warrant consideration. There is no sufficient ground to interfere with the Judgment of the 1st Appellate Court. Therefore, this Second Appeal must inevitably fail. 36. As a consequence, the Second Appeal is dismissed without costs. The Judgment dated 30.10.2002 of learned Senior Civil Judge Kothapeta, in A.S.No.27 of 2001, stands confirmed. Miscellaneous petitions pending, if any, in this Appeal shall stand closed.