* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + Second Appeal Nos. 151 and 152 of 1999 and SA (SR) No.8875 of 1997 % 12.08.2010 S.A. No. 151 of 1999 Siripurapu Narasimha Rao (Died) per LRs. .. Appellants Vs. $ Chilla Kanaka Raju .. Respondent <GIST: >HEAD NOTE: ! Counsel for Appellants : Sri C. Kodanda Ram ^ Counsel for respondent : Sri V.S. Valluru ? CASES REFERRED : 1. AIR 1995 Supreme Court 430(1) 2. AIR 1993 SC 2313 3. AIR 1972 AP 341 THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Second Appeal Nos. 151 and 152 of 1999 and SA (SR) No.8875 of 1997 Common Judgment: Since these three appeals arise out of the common judgment and decree, they are being disposed of by this common judgment. Since the original appellant in S.A. Nos.151 and 152 of 1999 and SA (SR) No.8875 of 1997 died, his LRs have been brought on record as per the orders of this Court dated 18.12.2008 and 12.08.2010 in SAMP Nos.1375 and 1378 of 2007 and 652 and 637 of 2010 and in SA(SR) No. 929 of 2010 respectively. S.A. No. 151 of 1999 arises out of the judgment and decree dated 17.07.1996 passed in A.S. No. 56 of 1993 by the III Additional District Judge, Visakhapatnam, whereby and whereunder the judgment and decree dated 19.04.1993 passed in O.S. No.949 of 1988 by the III Additional District Munsif, Visakhapatnam, has been confirmed. S.A. No. 152 of 1999 arises out of the judgment and decree dated 17.07.1996 passed in A.S. No. 57 of 1993 by the III Additional District Judge, Visakhapatnam, whereby and whereunder the judgment and decree dated 19.04.1993 passed in O.S. No.65 of 1987 by the III Additional District Munsif, Visakhapatnam, has been confirmed. Similarly, S.A (SR) No. 8875 of 1997 arises out of the judgment and decree dated 17.07.1996 passed in A.S. No. 55 of 1993 by the III Additional District Judge, Visakhapatnam, whereby and whereunder the judgment and decree dated 19.04.1993 passed in O.S. No. 440 of 1988 by the III Additional District Munsif, Visakhapatnam, has been confirmed. O.S. Nos.657 of 1987 and 949 of 1988 have been filed by the original appellant herein. Since the original appellant died he is being represented by his legal heirs in the second appeals. The respondent herein is the plaintiff in O.S. No.440 of 1988. O.S. No.657 of 1987 has been filed seeking the relief of permanent injunction restraining the defendant from encroaching the ABCD property shown in the rough sketch and for costs. O.S. No.949 of 1988 has been filed seeking permanent injunction restraining the defendant from selling the site i.e., 40’ service road marked as ABCDEF. O.S. No.440 of 1988 has been filed for declaration that the plaintiff is the owner of the plaint schedule property and for possession of ABCD road marked portion encroached by the defendant and for mesne profits. The brief case of the plaintiff in O.S. Nos.657 of 1987 and 949 of 1988 is as follows. The plaintiff purchased 240 sq. yards of land for a consideration of Rs.48,000/- under a registered sale deed dated 06.09.1986, marked as Ex.A1, from one Smt. Kumuna Kumari Panda. The said Smt. Kumuna Kumari Panda purchased the said property from one K. Mallikarjuna Rao, who had purchased the same from the original owner Chilla Narasimhulu i.e., the father of the defendant. The property of the plaintiff is plot No.6 and to the south of the plaint schedule property there is a 40’ service road which is the only way to plot No.6. It is alleged that the defendant is making efforts to construct a fence across 40’ service road so as to obstruct the way to the plaintiff’s property. The 40’ service road is abutting the 200’ National Highway. It is also the case of the plaintiff that the father of the defendant sold several plots to several persons and that the defendant has no right over the 40’ service road. It is also alleged that the defendant is trying to alienate the 40’ service road and therefore he may be restrained by an order of injunction. The case of the defendant, as seen from the written statements filed by him in O.S. Nos.657 of 1987 and 949 of 1988 and the averments made in his plaint in O.S. No. 440 of 1988, is as follows. His father late Chilla Narasimhulu owned extensive properties in Respuvanipalem village and he made a lay out and sold plots to various persons and out of those plots, plot No.6 was sold under a registered sale deed dated 29.07.1971 to one Mallikarjuna Rao, from whom Smt. Kumana Kumari Panda purchased and from whom the plaintiff purchased the said plot in 1986. It is the case of the defendant that the plaintiff started business in selling marble stones and that he had also purchased plot No.5 from one K. Basave Purna Chandrasekhara Rao who purchased the property from the father of the defendant and thus the plaintiff is the owner of plot Nos.5 and 6 and that the plaintiff has access to National Highway through 60’ road situated to the west of plot No.5 and that the plaintiff encroached into ABCD property without having any manner of right and therefore he is entitled for declaration and to restrain the plaintiff from encroaching upon the plaint schedule property. In O.S. No.657 of 1987 he averred that he never tried to construct any fencing across 40’ road and that the plaintiff cannot claim any right over his property. In O.S. No.949 of 1988 he further averred that 40’ wide land is his absolute property ever since the death of his father and that there is no proposal of laying road by the Municipality and that his father had reserved the right of receiving compensation in case the properties were acquired by the Government and therefore he is the absolute owner of the property. All the above said three suits were clubbed and tried together. The evidence was recorded in O.S. No. 657 of 1987. The plaintiff in O.S. Nos.657 of 1987 and 949 of 1988 was examined as PW.1 and another witness namely Koneru Basava Punnaiah was examined as PW.2 on his behalf and Exs.A1 to A5 and Ex.X1 were marked. The defendant in the said two suits and plaintiff in O.S. No. 440 of 1988 was examined as DW.1 and another witness namely S. Chinnayya was examined as DW.2 and Exs.B1 and B2 were marked. The trial Court, on appreciation of the entire oral and documentary evidence on record, observed that the plaintiff cannot derive his right over 40’ service road because his title deed or the title deeds of his vendors are silent about their right over the service road. It was also observed that there is an approach road to the eastern side of plot No.6 which connects the National Highway and therefore he cannot claim any right over 40’ service road as an easement of necessity. It was also held that when the site left over for 40’ service road is not taken over by any authority and no improvements have been made over it the land of the defendant does not vest either in the Government or in the Municipal Corporation and the possession continues with the defendant (DW.1). Thus, the Court declared the defendant (plaintiff in OS No.440 of 1988) as owner of the plaint schedule property and dismissed the suits in O.S. Nos.657 of 1987 and 949 of 1988. The appellate Court also concurred with the findings of the trial Court. The main submission of the leaned counsel for the appellant/plaintiff in O.S. Nos.65 of 1987 and 949 of 1988 is that once the father of the respondent prepared a lay out and sold the plots showing the service road and other roads for the purpose of ingress and egress to the purchasers of the plots, the son of the said original owner cannot claim any right over the service road or any other pathway shown in the lay out. His main submission is that the service road and the other roads shown in the lay out are only for the purpose of providing access to the land owners to the main road of 200 feet National Highway. It is also his main submission that merely because the father of the respondent/defendant reserves any right to claim compensation in case the Government acquired the land for the purpose of laying roads or for any other purpose that does not mean that he had any legal right over the roads shown in the lay out so as to deprive the purchasers from using those roads to reach the National Highway. It is also his submission that as far as Plot No.6 is concerned there is no other way to the appellant/plaintiff to approach the National Highway except through 40’ service road. His submission is that though there is 30’ road but Gadda (uneven surface at the upper level) is intervening between plot No.6 and 30’ service road. In support of his contention he relied on decisions reported in Pt. Chet Ram Vashist (dead) by LRs v. Municipal Corporation of Delhi[1], M/s. Gobind Pershad Jagdish Pershad v. New Delhi Municipal Committee[2], and Kadiyala Venatasubbaiah v. Sarupuri Narayanamma[3]. The case of the defendant is that his father made a lay out and sold the plots and that he had reserved a right to claim compensation in case the Government acquired the land for the purpose of road and that admittedly the Government has not acquired the land and therefore the plaintiffs do not have any right to claim 40’ road. It is also their case that the plaintiffs are having road by the side of Plot No.5 and that there is no specific mention with regard to this 40’ road in the sale deeds filed by the plaintiff. The substantial questions of law formulated in these appeals are as follows. i) Whether a person who converts his lands into house sites and sold the same to the individual plot holders as plots is entitled to claim the title over the place left for roads and other amenities as his private property? ii) Whether a recital in the document executed by the defendants father in favour of plot owner at the time of sale reserving his right to receive the compensation from the Government in case acquisition will take away the right of possession of a plot owner? iii) Whether the appellant acquired right of easement of necessity over the 40 feet service road? iv) Whether the courts below is right in holding that respondent is not relinquished his right over the 40 feet service road until the land is acquired by the Government. v) Whether courts below is right in declaring that the respondent herein (plaintiff in O.S. No.440 of 1988) is absolute owner of the road in dispute? Normally, when house sites are offered for sale the intending purchasers would examine the layout plan and the roads leading to the plot intending to be purchased by them and after satisfying about the ingress and egress to their plot and the connectivity of such roads to the main roads the purchasers would purchase the plots. By showing the roads in a layout plan the owner of the land is undisputedly offering those roads for the purpose of use by the purchasers of those plots. Having made a promise to the purchasers that they can use the roads shown in the lay out plan neither the owner of the land who made the layout plan nor his successors or his legal heirs can claim any right over such roads particularly interfering with the right of the owners of the plots to use such roads. While dealing with the situation the Hon’ble Supreme Court in Pt. Chet Ram Vashist (dead) by LRs v. Municipal Corporation of Delhi (1 supra) observed as follows. “Reserving any site for any street, open space, park, school etc. in a lay-out plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it.” The Hon’ble Supreme Court in M/s. Gobind Pershad Jagdish Pershad v. New Delhi Municipal Committee (2 supra), while dealing with the provisions of Sections 3(13)(a) and 171(4) of the Punjab Municipalities Act observed that before a space can be held to be a "street" under the Act, there must be a dedication by the owner to the public. However, while dealing with an issue when a verandah in front of a shop was being used for about two decades by the public for passing and re-passing, the apex Court held that the owner of the shop has dedicated the verandah to the public use. It was further observed that when the owner of the property has, by his own volition permitted his property to be converted into a "street", then he has no right to claim any compensation when the same property is made a "public street". I n Pt. Chet Ram Vashist (dead) by LRs v. Municipal Corporation of Delhi (1 supra), the Supreme Court held as follows. “Reserving any site for any street, open space, park, school etc., in a lay-out plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it.” Section 53 of the Gram Panchayat Act is as follows. “53. Vesting of public roads in gram panchayats:- (1) All public roads in any village, other than National Highways, State Highways and roads vesting in Zilla Parishad or Mandal Parishad shall vest in the gram panchayat together with all payments, stones and other materials thereof, all works, materials and other things provided therefore, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the gram panchayat fund or otherwise, in along side or under such roads, and all works, materials and things appertaining thereto; Provided that the gram panchayat shall take steps to remove encroachments on, and prevent, un-authorised use of, any road other than a National Highway passing through the gram panchayat. (2) The Government may, after giving an opportunity to the gram panchayat of making a representation by notification, excluse from the operation of this Act any such public road, sewer, drain, drainage work tunnel or culvert, and may also modify or cancel such notification.” It appears that the plan filed by the plaintiff is not in dispute. This plan shows that there is 200’ National Highway towards south of the plot No.6 of the plaintiff. 40’ service road is shown between plot Nos.5 and 2-A. As far as plot No.6 is concerned, Gedda is shown in between Plot No.6 and 40’ service road towards south and east. After this Gedda, 30’ road is shown. As seen from the boundaries shown in the sale deed, wherein the plaintiff has purchased the plot No.6, towards west the Government well is shown and after that the plot of one Koneru Basava Purnachandra Rao is shown. Towards north plot of one Jari Krishnamma is shown. Thus it appears that there is no way to plot No.6 towards west and north. The only way left out is to reach the National Highway through south or to reach 30’ road towards east by crossing the Gedda. Admittedly, the service road is intervening the said Gedda and 200’ National Highway road. This ABCD is shown as 40’ service road in the rough sketch. The Courts below have mainly seems to have taken into consideration the fact that the plaintiff has purchased plot No.5 and plot Nos.5 and 6 are touching one another and that there is 60’ road towards the west of those plot No.5 and that there is no reference of service roads in the sale deed of the plaintiff. Admittedly, plot Nos.5 and 6 are two different plots, of course purchased by the plaintiff separately. When there are two separate plots, the plaintiff may sell one of the plots at any time in case of necessity. If such a situation arises then we have to examine whether those two plots have any separate access to the main road or not. The Courts below failed to consider that in the recitals of the sale deed in Ex.A1 the boundaries towards south and east have been shown as Gedda. They are not shown as the land of the father of the defendant. Gedda means which is having uphill with certain height and not useful for any other purpose. The very fact that the owner of the land has shown it as Gedda and not made it as plots clearly shows that it is a waste land. Thus, it is clear that the father of the defendant did not retain any right in the said Gedda land. As far as service road is concerned in the light of the above referred decisions it is clear that the father of the defendant has shown the same in the lay out as road abutting the National Highway or giving access to National Highway to the plot owners from southern side. Once the land has been shown as service road for the purpose of use by the owners of the plots neither the owner of the land who has shown it as service road nor his son can claim any right in such service road. Both the Courts below have not considered the right of way accrued to the owners of the plots who have purchased the plots from the father of the defendant. Similarly, as far as the plaintiff is concerned, it appears that he has no other way except to reach either to National Highway or towards south or to 30’ road towards east through Gedda. Therefore, the defendant cannot claim any right in the land shown as Gedda. Merely because the father of the respondent/defendant reserves any right to claim compensation in case the Government acquired the land for the purpose of laying roads or for any other purpose that does not mean that he had any legal right over the roads shown in the lay out so as to deprive the purchasers from using those roads to reach the National Highway. The defendant cannot seek any declaration of title over that land which has been left as service road and which is shown as Gedda by his own father. Thus, it is clear that the Courts below have not considered the facts of the legal position and committed an error in dismissing the suits filed by the appellant and decreeing the suit filed by the respondent. The substantial question of law framed is answered holding that when a person who converts his lands into house sites and sells the same to the individual plot owners he cannot claim right over the left over roads as his private property. Even if the recitals in the document executed by the owner of the plot shows that he had reserved any right to receive compensation in case of acquisition that will not take away the right of the owners of the plots to use the said roads. However, this order does not come in the way of the respondent claiming any compensation in case the Government acquires the 40’ service road and the place shown in Gedda in future. In the result, all the three appeals are allowed. Consequently, the suits in O.S. Nos.657 of 1987 and 949 of 1988 filed by the plaintiff are decreed and the suit in O.S. No. 440 of 1988 filed by the defendant is dismissed. However, in the circumstances, no costs. ______________________ B. CHANDRA KUMAR, J. Date: 12.08.2010 Nsr [1] AIR 1995 Supreme Court 430 (1) [2] AIR 1993 SC 2313 [3] AIR 1972 A.P. 341