IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FOURTEENTH DAY OF DECEMBER TWO THOUSAND AND TEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.1504 of 2004 Between: Kakatiya University .. Appellant AND Kotagiri Venkata Swamy & another .. Respondents AND WRIT PETITION No.10955 of 2008 Between: Kotagiri Venkata Swamy & another .. Petitioner AND Kakatiya University & 4 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.1504 of 2004 and WRIT PETITION No.10955 of 2008 COMMON JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.81 of 1998, on the file of the IV Additional District and Sessions Judge, Warangal, dated 09.12.2003, by which the First Appellate Court reversed the judgment and decree of the Principal Junior Civil Judge’s Court, Warangal, in O.S.No.218 of 1994, dated 12.08.1998, and granted a decree of the suit for a permanent injunction without costs through out. 2. Respondents 1 and 2 in the Second Appeal filed W.P.No.10955 of 2008 against the appellant and the Police officials and the Station House Officer of Kakatiya University Campus, Warangal, in respect of the same property covered by the civil dispute. 3. The factual background for the dispute is that respondents 1 and 2 in the Second Appeal filed the suit for a permanent injunction in respect of the suit schedule property of Ac. 5.38 guntas in S.No.214 of the Plaint ‘A’ Schedule out of which Ac. 0.28 guntas shown in the Plaint ‘B’ Schedule were acquired for the benefit of the appellant university under the Land Acquisition Act, 1894. Respondents 1 and 2 in the Second Appeal claimed Kotagiri Venkata Narayana to be the original owner of Ac. 5.38 guntas covered by the Plaint ‘A’ Schedule land and after him, they succeeded to the property under a registered Will, dated 10.06.1976, and are in possession and enjoyment. The State Government initiated action for acquisition of the entire land for the purpose of establishment of the Post Graduate Centre of the Osmania University and by the time of declaration under Section 6 of the Land Acquisition Act, 1894, the extent of site to be acquired was reduced to Ac. 2.24 guntas. Later, after having found that only Ac. 0.28 guntas was fit for construction purposes, the acquisition was ultimately confined to Ac. 0.28 guntas and the unacquired land continued to be in the possession of respondents 1 and 2 in the Second Appeal. Still, the appellant university and its officials were interfering with the possession and enjoyment of Respondents 1 and 2 in the Second Appeal and were even giving complaints to the police against respondents 1 and 2 in the Second Appeal. Hence, the suit. 4. The suit was resisted by the appellant university contending that though the acquisition was confined to only Ac. 0.28 guntas, the possession of Ac. 2.24 guntas in S.No.214, etc., was taken over by the Government on 01.02.1969, after which there was an award enquiry and passing of an award. Though the acquisition was later confined to Ac. 0.28 guntas, the possession was not given up which was stated even by the original owner Kotagiri Venkata Narayana in his declaration under the Urban Land Ceiling Act before the competent authority. Respondents 1 and 2 in the Second Appeal cannot travel beyond what was claimed by Kotagiri Venkata Narayana himself and they never demanded redelivery of possession and their remedies are elsewhere and not in a suit for permanent injunction. The suit is, hence, not maintainable without seeking any declaration of title and hence, the appellant desired the suit to be dismissed. 5. On such pleadings, the trial Court framed issues on the entitlement of respondents 1 and 2 in the Second Appeal for a permanent injunction, the maintainability of the suit without seeking declaration of title and any bar of limitation for the suit. 6. During trial, P.Ws.1 to 3 and D.W.1 were examined and Exs.A-1 to A-11 and B-1 were marked. 7. The trial Court rendered its judgment on 12.08.1998 referring to the rival contentions and evidence and noted the undisputed facts as disclosing the claim of respondents 1 and 2 in the Second Appeal to be under Ex.A-1-Registered Will executed by their paternal uncle Kotagiri Venkata Narayana which was proved by the evidence of the attestor of the Will as P.W.2. The trial Court also noted that the other documents filed by the plaintiffs show that the Government which proposed to acquire Ac. 5.38 guntas, later reduced it to Ac. 2.24 guntas, possession of which was taken over as per the order on 01.02.1969, which was admitted by P.W.1. The trial Court further noted that the Pahanies filed by the plaintiffs mentioned the land beyond the Post Graduate Centre to be in the possession of Kotagiri Venkata Narayana and in the absence of any evidence about redelivery of the remaining land excluding Ac. 0.28 guntas out of Ac. 2.24 guntas, the trial Court refused to place any reliance on Exs.A-4 to A-6-Certified copies of Pahanies for the years 1968- 1969, 1976-1977 and 1991-1992 and Exs.A-8 to A-11 in this regard. The trial Court, therefore, opined that the Government or the defendant must be deemed to be in possession of the entire Ac. 2.24 guntas and not Kotagiri Venkata Narayana or respondents 1 and 2 in the Second Appeal and consequently opined that on the admission of P.W.1, a mere suit for permanent injunction without seeking declaration of title and recovery of possession is not maintainable, more so, in the absence of impleading the Government as a party and the trial Court, hence, considered respondents 1 and 2 in the Second Appeal to be not entitled to any relief notwithstanding any lacunae in the version of the appellant university. While refusing to consider the suit as not maintainable due to bar of limitation, the trial Court dismissed the suit without costs in view of its other findings. 8. In appeal, the First Appellate Court rendered the impugned judgment again referring to the rival contentions and the evidence and deciding the point whether respondents 1 and 2 in the Second Appeal continued to be in possession and enjoyment of the suit land with lawful right and interest. The First Appellate Court noted that Ex.A-1-Registered Will in favour of respondents 1 and 2 in the Second Appeal cannot be questioned by the appellant university and the admission of P.W.1 that the possession was taken on 01.02.1969 in terms of Ex.A-3-copy of Gazette Notification was referred to. The ultimate acquisition of Ac. 0.28 guntas on payment of compensation to that extent of land only was also noted, followed by reference under Section 18 of the Land Acquisition Act, 1894, in respect of that land, with a further appeal to the High Court. The First Appellate Court noted the information from the Collector specifying that only Ac. 0.28 guntas were acquired and the admission of D.W.1 that only Ac. 0.28 guntas was delivered to them out of Ac. 2.24 guntas taken possession by the Government. The stand of the appellant university that the possession of respondents 1 and 2 in the Second Appeal is confined to Ac. 3.14 guntas was also noted and the contention of the appellant university that the possession of the land proposed to be acquired must be deemed to be with the Government and under it, with the appellant university with reference to the precedents cited before the First Appellate Court, was not accepted noting that on the lapse of the Land Acquisition Proceedings, the effect is that the open plot of land must be considered to be not continuing in the possession of the Government. The First Appellate Court referred to the precedents of this aspect in which it was observed that mere entry into the land by the officers of the Government for purposes of the Land Acquisition Proceedings does not amount to dispossession of the interested persons and does not amount to vesting of the land with the Government. The First Appellate Court, hence, concluded that when the acquisition did not materialize in respect of the entire land as originally proposed, the appellant university cannot contend that it continued to be in possession from 01.02.1969 when the predecessor of respondents 1 and 2 in the Second Appeal was not divested of his title, right or interest in the land not acquired. The First Appellate Court felt that no relief of declaration of title or possession is sought for by the appellants in this regard. The undesirability of the instrumentality of the State attempting to deprive private citizens of their right to property was also emphasized and with reference to the Urban Land Ceiling declaration given by Kotagiri Venkata Narayana, the First Appellate Court felt that Ex.B-1-copy of the order of Special Officer ULC, Warangal, cannot have any bearing on the claims in the suit. Respondents 1 and 2 in the Second Appeal were, therefore, considered to be continuing in possession of the disputed land in the eye of law with which the appellant university or its officials cannot interfere. In tune with its conclusions, the First Appellate Court reversed the judgment of the trial Court and decreed the suit without costs. 9. The appellant university challenges the said judgment and decree in this Second Appeal contending that the equitable relief of permanent injunction should not have been considered when the suit property has been part and parcel of Kakatiya University Campus in the physical possession of its Post Graduate Centre. The appellant university claimed the Government to have handed over Ac. 2.14 guntas in S.No.214 to the appellant university and the said possession was admitted by Kotagiri Venkata Narayana in his Urban Land Ceiling Declaration. The possession was never redelivered by the Government nor the appellant university and alleging that the First Appellate Court did not consider any question in its proper perspective, the appellant university claimed that the questions raised by it in the grounds of appeal are the substantial questions of law involved in the Second Appeal. 10. Subsequently, the appellant university filed a separate memo listing the substantial questions of law raised by it in the Second Appeal as relating to the liability for dispossession even if it were a trespasser without following the due process of law notwithstanding that no compensation was paid by the Government for the land and more so, in the absence of any redelivery of possession by the Government. This Court admitted the Second Appeal on such substantial questions of law raised in the grounds of appeal. 11. During the pendency of the Second Appeal, respondents 1 and 2 in the Second Appeal filed W.P.No.10955 of 2008 claiming that they filed W.P.No.21686 of 2004 earlier in which this Court directed to conduct a survey over S.No.214 as early as possible. They claimed that the survey conducted revealed the appellant university to be in possession of only Ac. 0.28 guntas and not the remaining land. The District Collector issued a letter, dated 29.07.2003, even earlier clarifying that only Ac. 0.28 guntas were acquired and not the rest of the land. Still the appellant university is interfering with the peaceful possession and enjoyment of the property by respondents 1 and 2 in the Second Appeal sending its security personnel, etc., and the Police are not responding in spite of complaints to them. Therefore, they sought for issuance of the writ of mandamus declaring the acts of the appellant university in interfering with the property to be illegal and declaring the inaction of the Police officials also to be illegal. They sought for consequential directions against non-interference with the possession in the subject land. 12. The appellant university resisted the writ petition contending that the land in question is utilized as a playground by the Pharmacy College in the appellant university campus and the survey report in pursuance of W.P.No.21686 of 2004 was only about acquiring Ac. 0.28 guntas paying compensation, but not about physical possession. The appellant university claimed to have filed photographs probablising its possession and the land was claimed to have been vested with the Government under the Land Acquisition Act, 1894, which made over the same to the appellant university which cannot be interfered with in writ jurisdiction. 13. The Police officials who are the other respondents to the Writ Petition contended that they did not receive any complaint in this regard and have nothing to do with the dispute. 14. As both the Second Appeal and the Writ Petition relate to the same subject matter, they are being heard and decided together, at request and with the consent of both the parties. 15. Sri Deepak Bhattacherjee, learned counsel for the appellant/first respondent in the Writ Petition and Sri P. Venugopal, learned counsel for respondents 1 and 2 in the Second Appeal/the writ petitioners are heard. 16. The substantial question of law on which the Second Appeal was admitted is also the question which arises for consideration in the Writ Petition on the conflicting contentions of the parties. 17. The findings of the trial Court and the First Appellate Court about the proof of Ex.A-1-Registered Will in favour of respondents 1 and 2 in the Second Appeal by which they became entitled to Ac. 5.38 guntas in S.No.214 of Kumarapally, Hanamkonda Mandal, Warangal, are not in question in the Second Appeal or the Writ Petition and the original ownership of Kotagiri Venkata Narayana whom respondents 1 and 2 in the Second Appeal succeeded under Ex.A-1-Registered Will in respect of the suit property is never in dispute. The possession and enjoyment of Kotagiri Venkata Narayana admittedly stood undisturbed and uninterfered with till the commencement of the Land Acquisition Proceedings. It is also not in dispute that the initiation of Land Acquisition Proceedings for the entire extent was later confined to Ac. 2.24 guntas and ultimately was taken to its logical conclusion by payment of compensation only in respect of Ac. 0.28 guntas. That the land beyond Ac. 0.28 guntas ceased to be the subject of Land Acquisition and the Proceedings in respect of the same stood lapsed also is not in dispute, but the appellant university is trying to take advantage of the possession of Ac. 2.24 guntas said to have been taken over by the State Government on 01.12.1969 under Ex.A-3-copy of gazette notification with no further record of redelivery of possession on confinement of the acquisition to Ac. 0.28 guntas. However, respondents 1 and 2 in the Second Appeal had produced before the trial Court Exs.A-4 to A-6- Pahanies, Ex.A-8-memo, dated 11.08.1994, Ex.A-9-Map and Ex.A- 10-Sethwar for the year 1994-1995 in support of their claim of being in possession subsequent to the lapse of Land Acquisition Proceedings and as to how the entries in the public records can be straight away thrown out is not quite intelligibly stated by the trial Court. The Government being not made a party was also criticized by the trial Court, but if respondents 1 and 2 in the Second Appeal were aggrieved of the interference with their possession by the appellant university, why the Government becomes a necessary and proper party is also equally unintelligible. Assuming that any redelivery of possession by the Government to the original owner or his successors would have been in the normal course evidenced by official documents as presumed by the trial Court, the admission of D.W.1 relied on by the First Appellate Court about the appellant university being delivered possession of only Ac. 0.28 guntas can be equally taken advantage by respondents 1 and 2 in the Second Appeal. Respondents 1 and 2 in the Second Appeal, as rightly opined by the First Appellate Court, could not have been compelled to sue for any declaration of title or recovery of possession in the light of their documents Exs.A-4 to A-6 and Exs.A-8 to A-11 being corroborated by the admission of the sole witness for the appellant university as D.W.1 about their taking possession through the Government of only Ac. 0.28 guntas. 18. The First Appellate Court scanning through the evidence in detail and relying on Exs.A-4 to A-6 and Exs.A-8 to A-11, referred extensively to the legal position on this aspect also and the lapse of the Land Acquisition Proceedings was interpreted with reference t o SECRETARY INDUSTRIES, GOVERNMENT OF A.P. AND OTEHRS VS. KHAJA MUMIN AND OTHERS[1] as signifying the absence of any dispossession of the original owner/interested persons in the meanwhile, due to the infructuous Land Acquisition Proceedings. While it cannot be in dispute that no vesting of the disputed land can be claimed to have taken place in favour of the Government or the appellant university, the admitted lawful ownership of the subject land with respondents 1 and 2 in the Second Appeal under a Registered Will executed by the admitted original owner and possessor can also lead to the consequential presumption under law of possession following title with the Government itself never claiming to have continued its possession taken on 01.12.1969 or to have transferred such possession even in respect of the land not acquired to the appellant university. The communications from the officials of the Government, more particularly Ex.A-8-Memo stand in support of respondents 1 and 2 in the Second Appeal. The Collector had clearly stated that compensation was paid only in respect of Ac. 0.28 guntas acquired for the purposes of the Post Graduate Centre and the balance area beyond Ac. 0.28 guntas in the occupation of the appellant university, in S.No.214 to an extent of Ac.5.10 guntas is in the possession of the owner. The Collector also referred to the Sub-Division Work, Supplemental Sethwar and implementation in the revenue records and the beneficiary could not have claimed more than what the Government itself did not claim. 19. Ex.B-1-Order of the Special Officer under the Urban Land Ceilings Act in which Kotagiri Venkata Narayana was stated to have requested for deletion of 9512 square meters out of S.No.214/2 on the ground of acquisition by the Government is relied on by the appellant university, but it is seen from the said Proceedings that the Special Officer did not even verify the award, dated 20.05.1970, which was confined only to Ac. 0.28 guntas. If the Special Officer had relied on the notice for acquisition for the entire extent of 9512 square meters for deleting the said area from computation of excess land without verification of the subsequent proceedings, the same may be open to appropriate further proceedings under that Act (which now stood repealed in the State of Andhra Pradesh), but it cannot lead to any presumption of the unacquired land continuing to be in the possession of the Government when the Government itself makes no such claim. Even the oldest claims of the appellant university in W.P.No.10955 of 2008 in its counter affidavit are about the subject site being utilized as a playground obviously without any permanent construction which can signify the possession and enjoyment of the said land by the appellant university. Even according to respondents 1 and 2 in the Second Appeal, if the students of the appellant university start playing in the open place unenclosed by any compound wall or fencing as seen from the material papers, the same may not be susceptible to being construed as signifying any conscious assertion of exclusive possession by the appellant university. The judgment of the First Appellate Court in due compliance with the principles laid down in the binding precedents cannot be considered to be perverse or unreasonable or against the broad human probabilities arising out of the evidence on record. Apart from the undesirability of an instrumentality of State trying to claim rights over an admittedly private property without taking recourse to the due process of law and without payment of any compensation, the Second Appeal cannot be considered to be raising any substantial questions of law when the trespass by the appellant university or the custody of the property with the Government and the appellant university, requiring any redelivery of possession or the necessity for respondents 1 and 2 in the Second Appeal to seek any declaration of title or possession or respondents 1 and 2 in the Second Appeal being disabled by any promissory estoppel due to Urban Land Ceiling Proceedings cannot be considered to be probablised on record. In the absence of any substantial questions of law, the Second Appeal is not tenable and has to fail. In consequence, if respondents 1 and 2 in the Second Appeal are entitled to a permanent injunction against the appellant university, they are also to be entitled to appropriate reliefs in the Writ Petition against interference with their possession otherwise than in due course of law. 20. While considering the Second Appeal for admission, after hearing both the learned counsel, this Court recorded on 02.12.2004 that respondents 1 and 2 in the Second Appeal were not making any constructions on the land in question. In W.P.No.10955 of 2008, an interim direction was given in W.P.M.P.No.14264 of 2008 directing status quo obtaining as on that day to be maintained pending further orders. The statement of the learned counsel for respondents 1 and 2 in the Second Appeal recorded by this Court and the status quo orders in the Writ Petition continued to be operative till today. The contentions of the appellant university seem to be about the land being used as a play ground by the students of the Post Graduate Centre. While the land continued to be an open plot of land till now during the pendency of the entire litigation as seen from the material on record, while disposing of the Second Appeal and the Writ Petition, if respondents 1 and 2 in the Second Appeal/the writ petitioners were to be directed not to change the physical features of the suit property for a period of one month to enable the parties to take recourse to any appropriate remedies available to them under law concerning this judgment and the subject land, the same will meet the ends of justice. 21. Accordingly, the Second Appeal is dismissed without costs and the Writ Petition is allowed without costs by directing the first respondent not to interfere with any other land in S.No.214 of Kumarapally Village, Hanamkonda Mandal, Warangal, beyond the extent of Ac. 0.28 guntas acquired by the Government for its benefit and in its possession and enjoyment. Respondents 1 and 2 in the Second Appeal/the writ petitioners shall not change the physical features of the subject property in any manner until the expiry of one month from the date of receipt of certified copy of this common judgment by both the parties. _____________________ G. BHAVANI PRASAD, J Date: 14th December, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.1504 of 2004 and WRIT PETITION No.10955 of 2008 Date: 14th December, 2010 KL [1] 1996 (4) ALD 723