IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE EIGHTEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.SWAROOP REDDY FIRST APPEAL NO : 1858 of 2001 (Appeal under Section:____ of C.P.C., Against the judgment and decree dated 10/04/2001 in OS NO : 12 OF 1998 on the file of the court of the Senior Civil Judge,Pithapuram) Between: 1 V. Latchanna S/o Apanna R/o Komaragiri, Kothapalli (M), E.G.Dist. 2 R. Ramakrishna S/o Pedda abbayi R/o Komaragiri, Kothapalli (M), E.G.Dist. 3 G. kameswari S/o late Surynarayana R/o Komaragiri, Kothapalli (M), E.G.Dist. ..... APPELLANT(S) AND 1 R. Veeraswamy S/o Nerellu R/o Komaragiri, Kothapalli (M), E.G.Dist. 2 The Govt. of A.P., Rep by the Dist. Collector, E.G.Dist. 3 R. arjuna Rao S/o Nerellu R/o Komaragiri, Kothapalli (M), E.G.Dist. 4 R. Srinivas S/o Arjuna Rao R/o Komaragiri, Kothapalli (M), E.G.Dist. 5 R. Narayana Murthy S/o veeranna R/o Komaragiri, Kothapalli (M), E.G.Dist. 6 K. Subba Rao S/o Appayyamma R/o Komaragiri, Kothapalli (M), E.G.Dist. 7 R. Simhachalam S/o Appanna R/o Komaragiri, Kothapalli (M), E.G.Dist. 8 G. Appanna S/o late Suryanrayana R/o Komaragiri, Kothapalli (M), E.G.Dist. 9 G. Venkataramana S/o late Suryanrayana R/o Komaragiri, Kothapalli (M), E.G.Dist. 10 K. Rajulamma W/o Subba Rao R/o Komaragiri, Kothapalli (M), E.G.Dist. .....RESPONDENT(S) Counsel for the Appellant: MR.VL.N.G.KMURTHY Counsel for the Respondent No.: MR.T.DURGA PRASAD RAO FIRST APPEAL NO : 2156 of 2001 (Appeal under Section:____ of C.P.C., Against the judgment and decree dated 10/04/2001 in OS NO : 12 OF 1998 on the file of the court of the Senior Civil Judge,Pithapuram) Between: The Govt. of A.P. rep. by the Collector, East Godavari, Kakinada ..... APPELLANT AND 1 Rayudu Veeraswamy S/o Nerellu Komaragiri, Kothapalli Mandal 2 Rayudu Arjuna Rao (not necessary party in this appeal) 3 Rayudu Srinivas (not necessary party in this appeal) 4 Rayudu Narayana Murthy (not necessary party in this appeal) 5 Kothapalli Subbarao (not necessary party in this appeal) 6 Rayudu Simhachalam (not necessary party in this appeal) 7 Vasamsetti Latchanna (not necessary party in this appeal) 8 Rayudu Ramakrishna (not necessary party in this appeal) 9 Gubbala Kameswari (not necessary party in this appeal) 10 Gubbala Appanna (not necessary party in this appeal) 11 Gubbala Venkataramana (not necessary party in this appeal) 12 Kothapalli Rajulamma (not necessary party in this appeal) Respondents 2 to 12 are R/o Komaragiri, Kothapalli Mandal .....RESPONDENT(S) Counsel for the Appellant:GP FOR APPEALS Counsel for the Respondent No.: MR.T.DURGA PRASAD RAO The Court Delivered the Following JUDGEMENT:-- PSR, J. A.S.Nos. 1858 and 2156 of 2001 Common judgment These two appeals are filed against the judgment in O.S.No. 12 of 1998, passed by the learned Senior Civil Judge, Pithapuram, East Godavari District. AS.No. 1858 of 2001 is filed by Defendant No.s 7 to 9 and A.S.No. 2156 of 2001 is filed by the first Defendant/government. As both the appeals arise out of one and the same judgment, both the appeals are heard together and are being disposed of by this common judgment. For the sake of convenience, the parties herein would be referred to as they are arrayed before the trial court. 2. The facts are as follows: According to the plaintiff, he is the owner of land measuring Ac.1.00 in Sy.No.785/1 and 785/2 of Komaragiri village. Out of that, an extent of 0.60 cents was acquired by the first defendant/government for the purpose of providing house sites. The land acquired was from Sy.No. 785/1 and the plaintiff was paid compensation of Rs.10,404.44 for sixty cents. In the remaining 30 cents of land in Sy.No.785/1 and Ac.0.10 cents in Sy.No.785/2, the he raised a mound and coconut trees. He has no other property. During 1992, defendant Nos.2, 5, 7; father of the 8th defendant, husband of the 9th defendant and father of defendant Nos.10 and 11, Gubbala Satyanarayana tried to trespass into the plaint schedule property claiming that the first defendant issued pattas to them. The plaintiff got issued notice under section 80 CPC to the first defendant and others. Thereafter, the officials of the first defendant promised that pattas if any, in respect of the Ac.0.40 cents would be canceled. In the meanwhile, defendants No.2 to 75, 7, Rayhudu Pedda Abbai and Gubbala Satyanarayana trespassed and occupied Ac.0.34 cents of land in Sy.No.785/1 and 785/2 leaving six cents of land in the possession of the plaintiff. To the knowledge of the plaintiff, the first defendant did not launch any acquisition proceedings for the remaining forty cents of land. The plaintiff improved the plaint schedule property. Without acquiring the land, the first defendant is not entitled to issue patta certificates to the other defendants. The officials of the first defendant tried to evict the plaintiff from even the six cents of land. 3. The first defendant filed its written statement contending that the entire Ac.1.00 land covered by Sy. Nos. 785/1 and 785/2 was acquired for the purpose of providing house sites to weaker sections under Award No. 10 of 1984. The plaintiff was paid compensation for the entire Ac.1.00 land, which was paid in two stages, for sixty cents in the first instance and for the forty cents, when it was about to be paid subsequently, the plaintiff avoided receiving the same by filing the suit. The plaintiff tried to trespass into the acquired land. The plaintiff cannot question the validity of the acquisition proceedings by way of a civil suit. If the plaintiff claims that he is not paid the compensation, he may seek the relief in an appropriate forum. 4. The other defendants filed written statement contending that they are not proper parties to the suit. This suit shall be proceeded only against the first defendant/government, as it granted pattas in their favour; delivered possession of the plots and they are in possession and enjoyment of the same. They are not trespassers. Possession of plot No.30 was given to the 7th defendant;Plot No.29 to the 8th defendant and plot No.24 to Gubbala Suryanarayana, whose legal representatives are defendant Nos.9 to 11. The plaintiff delivered the land to the government for allotment of house sites. If the plaintiff is not paid compensation, he has to proceed against the government under Land Acquisition Act. 5. On the basis of the above pleadings, the following issues are settled for trial: i) Whether the entire Ac.1.00 of land including the plaint schedule land was acquired by the government under the Award No.10 of 1984 and paid compensation for Ac.0.60 cents? ii) Whether the plaintiff evaded to receive notices when compensation for remaining Ac.0.40cents sought to be paid? iii) Whether pattas were granted and possession was delivered to the beneficiaries for the entire Ac.1.00? iv) Whether the suit is not maintainable in a civil court? v) Whether the plaintiff is entitled for declaration and consequential possession? vi) To what relief? 6. On behalf of the plaintiff, PWs 1 to 3 were examined and Exs A-1 to A-13 were marked and on behalf of the defendants DWs 1 to 3 were examined and Exs B-1 to B-9 were marked. 7. On the basis of the evidence and material on record, the trial judge answered Issue Nos. 1 and 2 in favour of the plaintiff; but, he did not give a clear finding as to whether the Award for the remaining 40 cents of land was passed and compensation was paid. In regard to issue No.3 - Whether pattas were granted and possession was delivered to the beneficiaries for the entire Ac.1.00, the learned trial judge held that pattas granted to the beneficiaries did not cover the plaint schedule land. There appears to be some confusion in giving the finding with regard to issue No.3, as the finding is that except the averment made in the plaint that his land to an extent of Ac.0.34 cents was high-highhandedly occupied by the beneficiaries, it is not established that pattas in respect of that Ac.0.40 cents was assigned to any particular individual. Here, instead of the word "Plaintiff", the word "defendants" must have been mentioned. However, the finding is that though Ac.0.34 cents of land was high-highhandedly occupied, it is not established that pattas in respect of that land was also given to which particular individual. With regard to issue No.5 - Whether the plaintiff is entitled for declaration and consequential possession?-the learned trial Judge held that the plaintiff is entitled for declaration and consequential possession of the plaint schedule property. 8. Now, the contention of the learned counsel appearing for the defendants is that there is absolutely no material to show that the land of the plaintiff to an extent of ac.1.00 was acquired by the government. He was paid compensation only for Ac.0.60 cents of land and for the remaining Ac.0.40 cents, he evaded to receive compensation and that there is no material to show that which portion, out of the land that was allegedly not acquired by the government, out of the remaining land of the plaintiff, was assigned to which person. It is stated that not only Ac.1.00 of the plaintiff, but, on the whole, Ac.6.00 of land was acquired, made into house sites and pattas were given to several persons and the plaintiff did not establish as to which portion of the land that belongs to him, was given to which person. 9. Now the point that arises for consideration is whether there any grounds for allowing these appeals. 10. POINT: There is no dispute about the plaintiff being the owner of Ac.1.00 of land in Sy.No. 785/1 and 785/2 of Komaragiri village. There is also no dispute about the government acquiring Ac.0.60 cents out of the above land and distributing the same by way of Pattas to different persons. The dispute is with regard to Ac.0.40 cents only out of which Ac.0.06 cents is admittedly in the possession of the plaintiff, thus the actual dispute is only with regard to Ac.0.34 cents of land. 11. The contention of the first defendant/government is that entire Ac.1.00 of land was acquired. There is absolutely no material to show the same. DW-1, in his chief examination has stated that Ac.1.00 land belonging to the plaintiff was acquired, but the plaintiff received compensation only for Ac.0.60 cents and did not receive compensation for the remaining Ac.0.40 cents. The land was acquired under Award No.10 of 1984 - a copy of the Award is marked as Ex B-1. In his cross examination, DW-1 admitted that the plaintiff filed a petition before the Mandal Revenue Officer to pay compensation for the rest of Ac.0.40 cents, which was acquired by the Government or to allot Ac.0.40 cents. On his representation enquiry was conducted. In his further cross examination DW-1 stated that in Ex B-1, it is mentioned that the Award is only to an extent of Ac.0.60 cents in Sy.No.785/1 belonging to the plaintiff and it does not show that Ac.1.00 of the land of the plaintiff was acquired. That there is no Award subsequently passed. DW-1 also admitted that there is no record in the file to show that more than Ac.0.60 cents belonging to the plaintiff was acquired. This evidence of DW-1 is sufficient to show that only Ac.0.60 cents of land belonging to the plaintiff was acquired; but not Ac.1.00. In case, the remaining Ac.0.40 cents of land was also acquired, the record should have revealed the same and as admitted by DW-1, there is no record. As such it has to be confirmed that only Ac.0.60 cents of land belonging to the plaintiff was acquired; but,in fact, possession of the Ac.0.34 cents out of the remaining Ac.0.40 was also taken and that the entire land was distributed by way of house site pattas to different persons. 12. As contended by the learned counsel for the defendants, there is no clear material to show, as to out of the entire land acquired, including the land belonging to others, apart from this Ac.0.60 cents belonging to the plaintiff and Ac.0.34 cents occupied, which portion is given to which defendant. Thus, there is no dispute that Ac.0.34 cents of land belonging to the plaintiff was taken by the government and allotted to others, but as stated, it was not done strictly in accordance with Law. Neither it was not acquired, nor was it separately purchased. As such the plaintiff is entitled for the relief to the extent of Ac.0.34 cents. But in the absence of clear and authentic material as to whom exactly pattas were granted out of those Ac.0.34 cents of land, it is difficult to pass any decree in favour of the plaintiff for recovery of possession of the same and it would not be in the interest of plaintiff also, as he would be put to any amount of trouble in execution proceedings. 13. Thus, admittedly, Ac.0.34 cents of land belonging to the plaintiff was taken over by the Government for the purpose of allotment of house sites, without any acquisition proceedings and without paying any compensation to the plaintiff. In the circumstances of the case, the best way is to compensate the plaintiff by awarding cost of land instead of passing a decree for recovery of possession and putting him into further trouble. 14. According to the plaintiff for Ac.0.60 cents of land an amount of Rs.10,404.44 was paid in the year 1984 and the proportionate cost for Ac.0.36 cents would be around Rs.6000.00 and granting the same as compensation after more than two decades would not be appropriate at all, as the value of the lands has gone up substantially during these years. There is no material to show as to what is the exact cost of those lands as of now and to enquire the same would not be that is at this stage. Even taking the value as per the Sub Registrar's office records also would not be of great help, as true market value would not be reflected in the official records. The plaintiff is a small farmer and the land acquired is also meager extent of Ac.0.30 cents. Granting compensation fifteen times more than what was granted in 1984, in my opinion, would be appropriate and that would be reasonable compensate to the plaintiff, in case appropriate interest is also granted on that amount. As such, I hold that instead of passing a decree for delivery of possession, the plaintiff shall be paid an amount of Rs.90,000-00 (Rs. Ninety thousands only) as on 16-3- 1984 (The date of Ex B-1). On that amount the plaintiff shall also be paid interest @ 9% per annum from that date i.e., 16.3.1984 till the date of actual payment of the amount by the first defendant/government, as no solatium is being granted as no exact value of the land is available and as the plaintiff is deprived of his land and income from the same till now and the amount is awarded as on 16.3.1984, interest @ 9% per annum is also awarded.. The plaintiff is also entitled for costs through out. 15. In the result, both the appeals are dismissed with costs. ______________________ P. SWAROOP REDDY, J. August 18, 2009. *BVS