THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1653 of 1992 JUDGMENT: The plaintiffs in O.S.No.38 of 1985 on the file of the Subordinate Judge, Tadepalligudem are the appellants herein. The suit was one filed for declaration of title and also to declare the resolution of the Municipal Council dated 12.10.1984 as illegal and for consequential injunction. The suit was filed in a representative capacity. The allegations in the plaint go to show that about 300 small traders were doing business in weekly shandy at Tadepalligudem in small plots in the schedule sites with sheds or stalls. The plaintiffs came to know that the defendant Municipality was taking steps for construction of a permanent market and accordingly tenders were called for. If the municipality follows its resolution, it will cause loss to the plaintiffs. According to the plaintiffs from 1925 onwards “Todd Market” in Tadepalligudem was there and the predecessors of the plaintiffs and other traders were openly, exclusively and continuously doing business with the knowledge and approval of the revenue authorities and ground rent was being collected from the occupants annually. The village panchayat was also collected the ground rent. Subsequently, the defendant collected the ground rent after 1958. After the abolition of the imams, only vacant sites vest with the Municipality under the Estate Abolition Act, hence there is no right for the defendant. The proposed constructions are not valid. Hence, the suit. The defendants 1 and 2 remained ex parte and the 3rd defendant filed a written statement contending that the suit filed in a representative capacity, is not maintainable and the Court Fee paid is not correct, the particulars of the occupation of the land by use of the plaintiffs is also not given. According to the defendant, the then Taluk Board was holding weekly shandy in Siddi Cheruvu from 1926 and some people were bringing their goods for the sale and similarly the disputed area is called as Brahmananda Reddy market, such business was being done. The entire area of the land in Sy.No.215 vested in the Taluk Board and thereafter with the District Board and Zilla Parishad and the Municipality. The market was handed over to the Municipality by the Government in G.O.Ms.No.397, dated 29.03.1962 to an extent of Ac.10-64 cents. The application of the Estate Abolition Act or the Inams Abolition Act has no relationship. The entire area was split up in 1928 survey. Therefore, the suit is not maintainable On the basis of the above pleadings, the necessary issues have been framed for trial. On behalf of the plaintiffs, P.Ws.1 to 6 were examined and marked Exs.A-1 to A-16 and on behalf of the defendants, D.W.1 was examined and marked Exs.B-1 to B-9. After considering the evidence on record, the learned Subordinate Judge, Tadepalligudem dismissed the suit and aggrieved by the said judgment and decree dated 06.08.1992, the present appeal is filed. The points that arise for consideration are: 1) Whether the plaintiffs are entitled to the relief of declaration and injunction as prayed for? 2) Whether the defendant is entitled to make the construction in the schedule property? 3) Whether the judgment and decree passed by the learned Subordinate Judge is legal and sustainable? POINT Nos.1 to 3: Evidently, the suit is based on possession and there is no title individually claimed by the plaintiffs or the body of the traders. It is the contention of the plaintiffs that about 300 families were doing business as weekly shandy in small plots with their own structures and they have been doing this business since 1926 with the knowledge of the revenue authorities and the Municipality. It is to be particularly mentioned that the ground rent was being collected from the respective occupants annually by the panchayat and thereafter by the Municipality. This fact itself clearly establishes that the property does not belong to the plaintiffs or the other persons doing the business. If the plaintiffs are asserting the rights or title by continuous possession and enjoyment, there was no need to pay any ground rent and such payment can only be in recognition of the title of the panchayat or the Municipality and being in permissive possession or as licensees. Therefore, in view of the above circumstances, however long the possession may be, it disentitles the plaintiffs to claim by possession. Even otherwise, they are holding only markets as weekly shandy and not continuously doing business everyday. Though an effort was made to show that the land was in inam estate and one Mokhasadar has given the land for the purpose of holding the market, but there is no proof of the same. Evidently, no inam patta was granted to any of the plaintiffs or their representatives. In fact, the defendants do not deny the running of the market since 1976 but it is only recognizing the right of the defendants alone. As can be seen from the judgment under Ex.A-7, which is writ petition No.4253 of 1975, the plaintiffs did not show their title and on the other hand, they have questioned the enhancement of the license fee. The observation of this Court in the above judgment clearly goes to show that there was no permanent business being run by the plaintiffs in the schedule property. That being so, the plaintiffs are recognizing the right of the defendant being owner of the property and they have no independent right and consequently they cannot claim any title to the property. In fact, some other traders have filed a suit on similar grounds in O.S.Nos.44, 67 and 72 of 1984 and they were dismissed and the Appeal Suits were filed, which were also dismissed by the District Judge, West Godavari District at Eluru and the Second Appeals were filed as S.A. Nos.234, 247 and 248 of 1990 and they were also dismissed and after finding no merits in the contentions raised by the other traders only time for eviction has been granted. The learned counsel for the appellants filed copy of the proceedings of the Chief Commissioner of Land Administration, Andhra Pradesh, dated 16.03.2006, where on a representation made by Sri Venkateswara Retail Merchants Union, an order was passed that taking into consideration the long possession and enjoyment, the possession can be regularized on payment of market value. The authority concerned shall consider their request as per Rules. Evidently, this does not confer any right on the appellants in the suit and the appellants have to approach the concerned authorities for the consequential action, if any, to be taken on the basis of the said order. Therefore, that cannot have any relevance and on the other hand, it shows that the title claimed by the appellants is not proper. However, some writ petitions were said to have been filed by about 145 traders and in Writ Appeal No.1423 of 2009 and W.P.No.1900 of 2005, this Court has passed a common judgment dated 17.12.2009, whereunder the Municipality, which is the defendant herein, is permitted to take possession of the land and construct a shopping complex and after completion of the construction the shops shall be allotted to the petitioners as per the procedure governing allotment of shops and on such terms as are being followed for such allotment. It is needless to say that such a benefit can also be allotted to the plaintiffs and the representatives herein. Therefore, so far as the merits in the appeal are concerned, the plaintiffs have absolutely no title and on the other hand, their claim and conduct shows that they are recognizing the Municipality and the other authorities as owners of the property and paying ground rent and license fee. Therefore, the judgment and decree passed by the learned Subordinate Judge, Tadepalligudem does not call for any interference. In the result, the Appeal Suit is dismissed. No costs. In view of the above observations made in the appeal, the A.S.M.P.No.244 of 2010 is closed. ________________________ N.R.L.NAGESWARA RAO, J DATE: 21-09-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1653 of 1992 DATE: 21-09-2011 MR