HON'BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR A.S.No.2963 OF 1996 JUDGMENT: (Per Hon'ble Sri Justice B. Chandra Kumar) This Appeal has been filed challenging the order, dated 07-10-1994 in O.P.No.11 of 1982 passed by the Subordinate Judge, Warangal, whereby and whereunder the claim of the Appellants that they have each 1/4th share in the disputed well has been denied in a Reference under Section 30 of the Land Acquisition Act. 2. The brief facts necessary for the disposal of the Appeal are as follows: An extent of Ac.2-00 in survey No.506-A and Ac.1-00 in Sy.No.506-B land was acquired for excavation of Kakatiya canal. The disputed well is with stone construction in 20 guntas in Sy.No.506-A. Various extents of lands in Sy.Nos.506-A, B, C and E, 533, 536, 539, 541, 550 and 554 originally belonged to Billa Narasimha Reddy and Billa Lakshma Reddy, who were brothers. Venkata Reddy, Ramana Reddy, Chinna Krishna Reddy, Ramachandra Reddy are the sons of Narasimha Reddy. Narasimha Reddy is the son of Venkata Reddy and Vasudeva Reddy is the son of Narasimha Reddy and grandson of Venkata Reddy. Vasudeva Reddy sold his share to V. Ramanaiah, who is claimant No.12. B. Satyanarayana Reddy, who is claimant No.8, is the son of Ramana Reddy. Chinna Krishna Reddy died about 12 years back. Radhamma is the wife of Chinna Krishna Reddy. Pratap Reddy is the son of Laxma Reddy and grandson of Ramachandra Reddy, who is claimant No.9. Thus claimant Nos.8, 9, 10 and 11 viz., B.Satyanarayana Reddy, B. Pratap Reddy, B. Radhamma and V. Ramanaiah (herein after referred to as 'Radhamma and others') are claiming each 1/4th share in the disputed well through Billa Narasimha Reddy @ Narsaiah. Though the name of claimant No.10 is mentioned as Radhamma in the claim petitions, in the cause title it was mentioned as Rudhramma . 3. The other branch is as follows: Mukunda Reddy, Ramachandra Reddy, Narasimha Reddy, Narayana Reddy and Krishna Reddy are the sons of Billa Lakshma Reddy. Narasimha Reddy is the son of Mukunda Reddy. As seen from the contents of the Award, Krishan Reddy and Narasimha Reddy son of Mukunda Reddy sold away their shares in favour of Narayana Reddy and they have no claim for compensation for the well and they have no objection for payment of compensation to the said Narayana Reddy. Narasimha Reddy, son of Lakshma Reddy, sold away his share to Ramachandra Reddy. Thus Billa Ramachandra Reddy and Billa Narayana Reddy together have got each half share in the share allotted to Billa Lakshma Reddy i.e, Billa Narayana Reddy and Lakshma Reddy have got each 1/4th share in the disputed well. Billa Ramachandra Reddy sold an extent of Ac.5-14 cents in Sy.No.506-A, B, C and E with well and 3 HP motor in 506-A vide Ex.A-1, sale deed, dated 09- 05-1969, to Balaramaiah and V. Kanakaiah. Thus V. Kanakaiah and Balaramaiah become joint owners of the above lands and 3 HP motor and to 1/4th share in the well. Kanakaiah is claimant No.5. Adepu Vemanna, Adepu Anandham, Adepu Venkateshwarlu and Adepu Narayana are the sons of Balaramaiah. They are claimant Nos.1 to 3 and 10 respectively, (hereinafter referred to as 'Vemanna and others'). Adepu Narayana died and his legal representatives have come on record as claimant Nos.17 to 21. 4. The specific case of the Radhamma and others is that they have each 1/4th share in the disputed well and that neither Lakshma Reddy nor his sons had any share in the disputed well and therefore, Ramachandra Reddy had no right to sell his share in the disputed well. The further case of Radhamma and others is that there is another well in Sy.No.506 belonging to Ramachandra Reddy and the well mentioned in the sale deed executed by him in favour of Vemanna and others refers to that well. Their further case is that the entire well exclusively belongs to them and they are drawing water through 5 HP motor fitted by Radhamma to the said well and that she was paying electricity bills. 5. The case of Vemanna and others is that Radhamma and others were taking water with the permission of Ramachandra Reddy and they have no right in the disputed well. 6. In order to prove their case, the claimants examined Pws.1 to 8, among whom, Adepu Vemanna was examined as PW-1 and Billa Radhamma was examined as PW-2 and Exs.A-1 to A-62 were marked. The Reference Court, on evaluation of the oral and documentary evidence, came to the conclusion that Ramachandra Reddy was having the motor in the disputed land and that he sold the land in Sy.No.506-A and the well situated therein vide Ex.A-1, sale deed, and therefore, Vemanna and others and Narayana Reddy have the right to share the compensation awarded to the well and Radhamma and others have no right in the disputed well. 7. The learned counsel for the appellants submitted that the Reference Court has not properly appreciated the evidence on record and failed to analyze the oral and documentary evidence. It is his further submission that the evidence adduced on behalf of the appellants, particularly documentary evidence, clinchingly establishes that Radhamma was having electric motor and she had been regularly taking water from the disputed well. It is also his submission that the khasra pahanies reveal that the source of water to the land of Radhamma and others, situated to the east of the disputed well, is from the disputed well. It is also his contention that the respondents (Vemanna and others) have no right in the disputed well since the well referred in the sale deed executed by Ramachandra Reddy in Ex.A-1 is a different well and not the well acquired in the land acquisition proceedings. 8. The learned counsel for the respondents submitted that the disputed well is in Sy.No.506-A and that the appellants have no right in Sy.No.506-A and that the said land was allotted to Ramachandra Reddy and therefore, it is clear that the disputed well fell to the share of Ramachandra Reddy and his brothers. It is also his submission that Ramachandra Reddy had fixed a motor to the disputed well and that the evidence of PW-7 itself proves that the motor of Ramachandra Reddy was dismantled after acquisition of land and this establishes that the disputed well fell to the share of Ramachandra Reddy and therefore, Vemanna and others are only entitled to share compensation. 9. The points that arise for consideration are whether the disputed well fell to the share of Radhamma and others or to the share of Ramachandra Reddy and his brothers and who can share the compensation awarded to the disputed well? 10. The main contention of the learned counsel for the Appellants is that the disputed well and the well referred in Ex.A-1, in which Ramachandra Reddy sold his share to Vemanna and others, are different and that the well referred in Ex.A-1 was not acquired. 11. Admittedly the disputed well is in Sy.No.506-A. According to Radhamma and others, Radhamma had fixed a motor in the disputed well and her service connection Number is 59. According to Vemanna and others, Ramachandra Reddy had fixed a motor to the disputed well and his service connection number is 55. 12. Radhamma has been examined as PW-2. She herself admitted that Lakshma Reddy, the father of Ramachandra Reddy, was having well even prior to her taking electricity connection (to the motor fixed) to the acquired well. Thus it appears to be not in disputed that Ramachandra Reddy had a motor to the acquired well. She had also admitted that she does not know in whose name the patta of the land, in which the disputed well situate, stands. She had also admitted that Ramachandra Reddy might have a share in Sy.No.506. 13. On behalf of Vemanna and others, Adepu Vemanna alone was examined as PW-1. He deposed that his father Balaramaiah and his uncle B. kanakaiah jointly purchased an extent of Ac.5-14 cents in Sy.Nos.506-A, B, C and E from Billa Ramachandra Reddy together with the well situated in Sy.No.506-A with 3 HP motor. Ex.A-1 is the sale deed, dated 09-05-1969. His further case is that they had purchased half share of the Ramachandra Reddy and the remaining half share belongs to Narayana Reddy and his brothers. His evidence further shows that subsequently they had dug a well in Sy.No.506-E. But the well in Sy.No.506-E is not acquired. However, damages for severance were paid to them. According to him, there is no electric motor in Sy.No.506-E. During the cross-examination, PW-1 admitted that the lands of Radhamma and others are situated to the east of Sy.No.506. He had further admitted that as the disputed well was at a low level, claimant No.4 got another well dug to the south of this land. He had also admitted that Radhamma installed current motor to the disputed well after taking permission from Ramachandra Reddy and that Radhamma and others used to draw water from the well occasionally with their permission. Thus the evidence of PW-1 shows that Radhamma installed current motor to the disputed well and that herself and others used to draw water from that well. Even the admission of PW-1 that Radhamma was taking water from the disputed well was not considered by the Reference Court. 14. PW-6 is examined on behalf of Radhamma and others. According to him, he was present at the time of partition of the land and at the time of partition, the disputed well was left out from the partition and only the lands were partitioned. 15. PW-7 is the Assistant Engineer in APSEB. According to him, service connection No.55 is in the name of B. Ramachandra Reddy and service connection No.59 is in the name of B. Radhamma and that both the service connections were dismantled during the excavation of Kakatiya canal. 16. PW-5 admitted that he has not paid any land revenue for Sy.No.506-A. He had also admitted that the well situated in Sy.No.506 was only acquired, but the other well situated in the same Survey number was not acquired. According to him, the distance between the two wells is about two furlongs. 17. Thus the evidence of PW-7 clinchingly establishes that the service connection No.55, which is in the name of Ramachandra Reddy was dismantled during the excavation of Kakatiya canal. Admittedly, the other well in Sy.No.506 was not acquired. When the other well is not acquired, the question of dismantling service connection in that well does not arise. Since only one well is acquired and when the service connection Nos.55 and 59 are dismantled according to PW-7, it is clear that service connections of Ramachandra Reddy and Radhamma were dismantled during excavation of Kakatiya canal and those two service connections pertain to the disputed well. Therefore, the theory of Radhamma and others that the well referred in Ex.A-1 is different well and not the disputed well has no basis. Once it is established that Ramachandra Reddy had motor and service connection in the disputed well, it is clear that he had sold his share along with motor to Vemanna and others. Admittedly the sale under Ex.A-1 is not in very much dispute. 18. Now it has to be seen whether the disputed well was allotted to the ancestors of Radhamma and others or to the ancestors of Ramachandra Reddy and his brothers. Admittedly no partition deed has been filed by any of the parties. In the absence of partition deed all the circumstances have to be taken into consideration. The sale deeds executed by the parties, the water source to their lands, fixing of motors, paying electricity charges etc. have to be examined. Ex.A-1 is the registered sale deed, dated 19-05-1969 executed by Ramachandra Reddy in favour of Kanakaiah and Balaramaiah. This sale deed clearly shows that an extent of Ac.5-14 guntas in Sy.Nos.506-A, B, C, and E was sold by Ramachandra Reddy along with the well in Sy.No.506-A and 3 HP motor. Ex.A-2 is the copy of the pahani for the year 1977-78, which clearly shows that the land in Sy.Nos.506-A, B, C and E is in possession of Vemanna, Narayana Reddy and Kanakaiah. Ex.A-5 to A-50 are the electricity receipts and demand notices show that Radhamma was issued demand notices and she paid electricity bills for service connection No.59. Ex.A-53 is the Khasra Pahani for the year 1954-55 relating to Sy.No.506-A, which shows that the land in Sy.No.506-A stands in the name of Billa Vasudeva Reddy, but Billa Ramachandra Reddy was shown as possessor of the land. In column No.15, it is mentioned as follows: “There is a well in this land, but these persons have no right and the owners of of the land in Sy.Nos.533, 539, 536, 550 and 541 have the right to irrigate their lands through disputed well”. It is also not clear on what basis the above entry was made in Ex.A-53. Ex.A-54 is the claim petition filed by Adepu Ramanaiah and others. Ex.A-56 is the copies of the pahani for the years 1950-60 and 1960-61 for the Sy.Nos. 541 and 550 reveal that Billa Radhamma was shown as pattedar and possessor of those survey numbers and the source of irrigation to these lands is shown through tank water. Ex.A-58 is the certified copy of the pahani for the years 1955-56, 1956-57 and 1957-58 for the Sy.Nos.536-A, 536-B, 539 and 541, which shows that Billa Vasudeva Reddy, Pratap Reddy and Billa Radhamma are the pattedars of these lands and they were cultivating those lands. It is specifically mentioned that the source of irrigation is through tank water for one month and subsequently with the disputed well water in Sy.No.506-A. Similarly Ex.A-59 also shows that Bill Radhamma is the pattedar and possessor of an extent of Ac.1-40 guntas and the source of irrigation for one month is from the tank and subsequently from the water of the well situated in Sy.No.506-A. Ex.A-60 shows that the lands in Sy.Nos.536-A, 536-B, 541, to an extent of Ac.4-12 guntas owned by Vasudeva Reddy, Pratap Reddy and Radhamma were irrigated with tank water for one and half month and subsequently with well water. Similarly the lands in Sy.Nos.560-C, 527-C, 539 and 550 owned by Bandi Narayana, Vasudeva Reddy and Radhamma were irrigated by tank water for one and half month and subsequently with well water. Ex.A-62 shows that B. Ramachandra Reddy is having 3 HP motor with service connection No.55 and B. Radhamma is having 5 HP mother with service connection No.59 in Sy.No.506. Admittedly it is not the case of respondents that Radhamma and others were taking water from some other well. 19. The above referred documentary evidence shows that the lands of Radhamma and others are towards the east of the disputed well and they were taking water from the disputed well. The Reference Court failed to examine the contents of the above referred documents. The oral evidence also, if analyzed carefully, reveals that the appellants were also drawing water from the disputed well. 20. PW-3, Billa Satyanarayana Reddy, is claimant No.8. According to him, there are four motors to the disputed well belonging to the four share holders i.e, Radhamma and others. But that is not the case of PW-2 and other witnesses and there is no other evidence in support of such contention. This witness had admitted that they had never paid any land revenue in respect of the disputed well, which is situated in Sy.No.506. 21. Claimant No.8, Billa Pratap Reddy, is examined as PW-4. According to him, the lands in Sy.Nos.536, 539, 541 and 550 were irrigated with the water of the disputed well. He had admitted that the patta of theland Sy.No.506 is not in their name and that the well is in Sy.No.506. He had also admitted that they had not paid land revenue to the land in which the well is situate. 22. Claimant No.12, B. Ramanaiah, was examined as PW-5. According to him, he purchased an extent of Ac.2-05 guntas belonging to Billa Vasudeva Reddy and 1/4th share in the disputed well. According to him, the current motor fixed to the disputed well jointly belongs to Radhamma and others and that he has 1/4th share in the current motor and the well. PW-8 deposed that Radhamma and others had been enjoying the disputed well till it is acquired. He had admitted that Ramachandra Reddy was also having lands near the disputed well and that he has sold his lands to Vemanna and others and that there is a well in the land of Ramachandra Reddy which is purchased by Vemanna and others. 23. A reading of the entire evidence gives an impression that the disputed well is in Sy.No.506-A and that the entire land in Sy.Nos.506-A, B, C and E fell to the shares of Ramachandra Reddy and his brothers. Radhamma and others had no share in Sy.No.506-A or in any sub- divisions of Sy.No.506. Admittedly they never paid land revenue for the land in Sy.No.506-A in which the disputed well is situated. However, PW-1 himself admitted that Radhamma was having electric motor in the disputed well and that Radhamma and others were drawing water from the disputed well. PW-7 himself admitted that Service connection No.55 of Ramachandra Reddy to the disputed well was dismantled after the well was acquired. 24. Thus the evidence on record shows that Ramachandra Reddy and Radhamma had fixed motors and were taking water. If we carefully examine the entire evidence on record, the only reasonable conclusion that can be arrived is that both the parties were jointly taking water from the disputed well and irrigating their lands though the disputed well is situated in Sy.No.506-A and Sy.No.506-A fell to the share of Ramachandra Reddy. 25. Now it has to be seen whether Radhamma and others were permitted to draw water or whether they had any right in the disputed well. It is an admitted fact that the disputed well is in Sy.No.506-A and patta of Sy.No.506-A was mutated in the name of Ramachandra Reddy. Admittedly, no partition deed has been filed by any of the parties to the litigation. There is nothing on record to say that the disputed well fell to the share of Ramachandra Reddy and his brothers. Similarly there is nothing to say that the disputed well exclusively fell to the share of Radhamma and others. When there is no evidence to say to whom the disputed well fell in the partition, the evidence of PW-6 assumes importance because according to him, there was no partition of the disputed well. Therefore, it appears that there was no partition of the disputed well. Or course Ramachandra Reddy had sold his lands and also his share along with the motor to claimant No.5 and father of claimants 1 to 3 and 10. In the circumstances, it appears that he could not have sold more than what he had i.e., more than the share he had in the disputed well. 26. In view of the above discussion, it is clear that the Reference Court has not taken into consideration the admissions made by PW-1 and the contents of khasra pahanies and other revenue records and failed to appreciate the evidence in proper perspective and reached to wrong conclusions. Therefore, the findings of the Reference Court that the Appellants have no share in the disputed well is not based on record and the same is liable to be set aside. 27. In the absence of proof of partition, Radhamma and others together get half share in the disputed well and the other branch gets half share. 28. Admittedly, Billa Ramachandra Reddy sold his share in favour of claimant No.5 and father of claimants 1 to 3 and 10. Thus out of 1/4th share of Ramachandra Reddy, claimant No.5 gets half share i.e., 1/8th share and other claimants together get 1/8th share in the well. 29. Accordingly, the Radhamma and others (claimants 8, 9 11 and 12), those who are claiming originally through Narasimha Reddy, jointly get half share in the disputed well i.e., each 1/8th share. 30. In the result, the Judgment of the Reference court is set aside and the Appeal is allowed in part as indicated above. No costs. __________________ A. GOPAL REDDY, J __________________ B.CHANDRA KUMAR, J Date: 17-08-2009 YCR