IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE SEVENTH DAY OF JULY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD S.A.No.80 of 2010 Between: The District Collector, Guntur and 4 others .. Appellants AND Padmidi Naga Raju and another .. Respondents JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.17 of 2004 on the file of the Court of Senior Civil Judge, Bapatla, dated 04-04-2009. The factual background for the dispute is that O.S.No.129 of 1998 was filed by the 1st respondent herein against the appellants herein and the 2nd respondent herein claiming a declaration that the sale deed dated 10-03-1998 in his favour is true, valid and binding on the defendants, a permanent injunction against interference with his possession and a mandatory injunction to direct the defendants to remove all the constructions in the suit property. The basis for the claim is that the 1st respondent herein purchased the property from Sanka Linga Raju under a registered sale deed dated 10-03-1998 and was in possession and enjoyment since then. The land was claimed to be originally belonging to Sanka Seetharamaiah, father of the vendor of the 1st respondent, who was assigned this land by the State in proceedings No.Rc.No.207/50-A-13, dated 07-03-1950. The permanent assignment free of market value was the subject of a writ petition filed by Sanka Seetharamaiah against the members of the Potter community and the High Court in its order dated 14-08-1959 held in favour of late Sanka Seetharamaiah. The vendor of the 1st respondent compromised ultimately with the members of the Potter community in O.S.No.452 of 1973 through I.A.No.1344 of 1975 dated 16-09-1975 before the Court of District Munsif, Baptla. The 1st respondent claimed in the suit that attempts were being made by the officials and the Revenue Department to remove the boundary stones and encroach into the land notwithstanding a notice under Section 80 of the Code of Civil Procedure dated 28- 05-1998. He also claimed that notwithstanding the pendency of the suit and C.M.A.No.8 of 2001 on the file of the Senior Civil Judge’s Court, Bapatla, the official defendants made illegal constructions in the suit property, which have to be removed. The official defendants contended that the Tahsildar, Ponnur in his proceedings in R.Dis.No.3118/79-A3, dated 07-05-1983 converted Ac.0.70 cents of land in Sy.No.83/2 into Police Department poramboke and the possession was delivered to the Inspector of Police, Ponnur on 08-05-1983. The possession of the 1st respondent or his vendor was denied and the Police Department is stated to be in continuous possession of the suit land in which construction was taken up by the Andhra Pradesh State Police Housing Corporation Limited through the 6th defendant-contractor. The construction of the Police Station was of course completed and as per the compromise in O.S.No.452 of 1973 and S.A.No.476 of 1955, the 1st respondent’s vendor was not the owner of the suit land and could not have executed any sale deed in favour of the 1st respondent. The constructions in question were made much prior to the orders of the Senior Civil Judge, Bapatla, and hence, the official defendants desired the suit to be dismissed. On such pleadings, the trial Court framed issues on the entitlement of the 1st respondent herein to the reliefs of declaration and permanent and mandatory injunctions and examined PWs.1 to 9 and DWs.1 and 2 and marked Exs.A.1 to A.40, B.1 to B.5, X.1 to X.19 and C.1 to C.9. It rendered its judgment on 23-02-2004 referring to the rival contentions and evidence and noted that the Mandal Revenue Officer stated about Potters informing that they gave up their rights in the property and considering the evidence of PWs.2, 4, 7, and 9 and Ex.X.3, the trial Court concluded that the rights of the members of the Potter Community recognized by the High Court in W.P.No.421 of 1957 were surrendered to the vendor of the 1st respondent herein. Consequently, the vendor of the 1st respondent was held entitled to alienate the suit land to the 1st respondent under Ex.A.1. The trial Court also referred to the judgment in O.S.No.86 of 1999 in support of its conclusion. The trial Court further referred to grant of a temporary patta in favour of Sanka Seetharamaiah under Ex.A.2 and delivery of possession under Ex.A.3. The trial Court also referred to the further permanent assignment made in his favour with the prohibition against alienation being in force only for a period of ten years. The purchase in 1998 under Ex.A.1 was noted to be not in violation of that condition and the alleged conversion of the land into a police poramboke land was treated to be non-est in the absence of any eviction of the 1st respondent or his vendor from the subject land under due process of law. The trial Court also found that the Board Standing Orders or any other Revenue Law do not provide for any classification as a Police poramboke land and the official defendants also failed to show any possession and enjoyment of the suit land from the date of Ex.B.1 orders of conversion till the date of construction. The payment of land revenue shown by the documents marked, following the registered sale deed in favour of the 1st respondent and other circumstances made the trial Court conclude that the 1st respondent was in possession and enjoyment of the suit property on the date of the suit in which the official defendants high handedly trespassed in spite of prohibitory orders from the Court. The constructions made in the subject land were noted to be in violation of status quo orders against the District Collector and the report of the Advocate Commissioner was taken aid for such a conclusion. The trial Court refused to give any benefit of trespass and encroachment to the official defendants, who claimed to have constructed the Police Station building in the site by spending huge amount of nearly Rs.10,00,000/-. Consequently, the suit was decreed granting three months time to the defendants to remove all the constructions in the suit property. In A.S.No.17 of 2004 against the said judgment and decree, the first appellate court delivered the impugned judgment on 04-04- 2009 again referring to the rival contentions and the evidence and opined that the contentions of the appellants before it cannot be accepted and without the necessity of replicating the analysis of the rival contentions and the evidence by the first appellate Court, it suffice to note that for more or less the same reasons adopted by the trial Court, the first appellate Court also concluded in favour of the 1st respondent herein and dismissed the appeal with costs. In the second appeal, the official defendants 1 to 5 seek to contend that the validity and binding nature of Ex.A.1 sale deed in the light of prohibitory orders against registration of the property, the validity of the conversion order issued by the Tahsildar before the sale in favour of the 1st respondent, the binding nature of the compromise decree in O.S.No.452 of 1973 against the defendants and proof of possession and title of the 1st respondent are the substantial questions of law involved in the second appeal. When the matter came up for hearing on 21-06-2010, the learned Assistant Government Pleader representing the appellants was advised to explore the possibility of an amicable settlement outside the Court in view of the concurrent findings of fact by the courts below, but the learned Assistant Government Pleader reported that there is no possibility of such settlement. Therefore, the arguments of Sri N.A. Ramachandra Murthy, learned Assistant Government Pleader and Sri N. Subba Rao, learned counsel for the 1st respondent are heard and the 2nd respondent is unrepresented before this Court. The second appeal was admitted on the same questions framed by the appellants as the substantial questions of law, which are answered together herein. Though the appellants seek to refer to some prohibitory orders of the Government against registration of the suit schedule property, it has been noted by the trial Court in its judgment at para-15 that no existence of such orders of prohibition was proved by producing any such orders by the defendants and otherwise there can be said to be no prohibition against registration of property under Ex.A.1 under the Registration Act. The said factual conclusion was not deviated from by the first appellate Court and the factual conclusion that there was no proof of any such prohibitory orders cannot be deviated from in the second appeal in the absence of any material. The orders of conversion of the land under Ex.B.1 dated 07-05-1983 are of course anterior to Ex.A.1 registered sale deed in favour of the 1st respondent herein on 10-03-1998. But, the trial Court has noted that firstly, there was no such permissible classification of the land into a “Police poramboke land” under the Board Standing Orders or any other Revenue Law and secondly, the defendants had not filed any document to show any possession and enjoyment of the suit property from the date of Ex.A.1 till the commencement of the construction in the suit property. The detailed discussion by the trial Court on this aspect was concurred with by the first appellate Court, which gave its own reasons and again this finding of fact about the absence of proof of possession and enjoyment by the Courts below cannot be said to be not based on the evidence on record. The first appellate Court relied on the evidence of the 1st respondent and his vendor as PWs.1 and 2 and concluded that though the sale in favour of PW.1 was said to be opposed to the prohibitory list in the Sub- Registrar’s office, Kakumanu, the same cannot be accepted in view of Exs.A-1 to A-40 corroborating the claims of PWs.1 and 2. The first appellate Court also noted the absence of production of any such prohibitory order and referred to the approval the compromise between the predecessors in title of the 1st respondent and the Potter Community in the civil and writ litigation concerning this land. While admittedly the rights of the Potter Community were recognized by the High Court under Exs.A.7 and A.8, their giving up their rights enabling the vendor of the 1st respondent to convey absolute rights in the property to the 1st respondent will definitely be binding on the defendants whose claim to possession since Ex.B.1 was not substantiated and who did not allege or prove any rights in the lands to be still remaining with them after the permanent assignment made in favour of the vendor of the 1st respondent. While the prohibition against alienation of assignment was only for a period of ten years, the purchase by the 1st respondent can be presumed to have been acted upon conferring possession and enjoyment to the 1st respondent. As noted by the trial and first appellate Courts, the officials never appeared to have taken any steps for resumption of the land in any manner for any purpose and they could not have, therefore, high handedly entered into possession of the property. While the defendants are still claiming their right by making the constructions in the suit property in violation of the interim orders of the Court in force during the pendency of A.S.No.28 of 2000 and C.M.A.No.8 of 2001, the conclusions of the trial and first appellate Courts are corroborated by the findings of the independent advocate commissioner in this regard, and therefore, in a second appeal, the consideration of which is confined only to substantial questions of law, these findings of fact do not appear to be open for reassessment and reconsideration and even if such reassessment is permissible, a close consideration does not reveal any reasons for deviating from the conclusions of the Courts below. Hence, all the four questions framed should be answered against the appellants. However, the factual situation obtaining now is that the construction of a Police Station was completed including over the suit land and a police station is functioning in the premises since about 10 years. Implementation of the decree for mandatory injunction will obviously cause loss to the public exchequer and may also be detrimental to public convenience in view of the admitted strategic location of the Police Station in the village. As the State has the option to take recourse to acquisition of the subject land in question under appropriate law, an opportunity should, therefore, be given to the appellants by granting a reasonable time to take recourse to any such procedure, if they so desire. But, if they fail to do so, the civil rights of the 1st respondent herein declared and upheld by the Civil Court have to be implemented and enforced. While the second appeal should fail and the parties can be directed to bear their own costs, such a reasonable time should be given to the appellants before the judgment and decree can be executed. Therefore, the second appeal is dismissed without costs. But, the defendants 1 to 5 are granted six (6) months time from today to initiate appropriate proceedings in accordance with law for acquisition of the decree schedule land in default of which the judgment and decree in O.S.No.129 of 1998 on the file of the Court of Principal Junior Civil Judge, Bapatla, dated 23-02-2004 can be executed and the said judgment and decree cannot be executed in the meanwhile. The prohibition against such execution is not of course concerning the directions of the trial Court and the first appellate Court granting costs to the 1st respondent herein, which shall be paid, if not already paid, by the defendants forthwith. _____________________ G. BHAVANI PRASAD, J Date: 07-07-2010 Ksn