THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO AND THE HONBLE MRS. JUSTICE ANIS
APPEAL SUIT No. 609 OF 2015
10-02-2016
Sri Nandru Ramesh & others. .Appellants
Village Reconstruction Organization (VRO), Rep. by its Secretary Dr. T.
Nagender Swamy & others.Respondents
Counsel for the Appellants: Sri P. Shashi Kiran
Counsel for the Respondents:Sri P. Roy Reddy
<GIST:
>HEAD NOTE:
? Cases referred
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
AND
THE HONBLE MRS. JUSTICE ANIS
A.S.No. 609 OF 2015
J U D G M E N T: (per Honble Sri Justice Nooty Ramamohana Rao)
Defendants 2, 4 to 8, 10 to 12, 14, 16, 18 and 19 in the suit
are the appellants. The 1st respondent herein is the plaintiff. We
prefer to describe, now on, the parties as they are arrayed before
the civil Court, for convenience sake.
The suit, O.S. No. 1 of 2011 was originally instituted on the
file of the II Additional District Judges Court at Vijayawada.
Subsequently, it came to be transferred to the Court of the XVI
Additional District & Sessions Judge at Nandigama, Krishna
District on point of jurisdiction, where it was re-numbered as
O.S.No. 92 of 2013.
When this Appeal was entertained by this Court, an
interlocutory order was passed on 24.08.2015 in A.S.M.P. No.
1758 of 2015, which was moved seeking for stay of execution of the
decree, directing the appellants to deposit the suit costs within
four weeks. That order has not been complied with, but however,
on three different occasions, adjournments were sought for on one
ground or the other. On 07.12.2015, entertaining A.S.M.P. No.
2169 of 2015, which was moved seeking extension of time for
depositing the suit costs by four more weeks, this Court allowed
the said Application permitting the appellants to deposit the suit
costs by way of demand draft drawn at par in the name of the 1st
respondent herein and to deposit the same before this Court by
14.12.2015, as by then, four weeks time sought for to comply with
the order passed by this Court on 24.08.2015 has already expired.
The order passed by us on 07.12.2015 also remained un-
implemented. When the matter was taken up on 27.01.2016,
there was no representation on behalf of the appellants and none
appeared on their behalf either. Hence, we have adjourned the
matter by two weeks, on our own, observing that failing to appear
in the matter henceforth, the proceedings will be taken up ex parte.
Today, when the matter is taken up, none appears on behalf
of the appellants and there is also no representation made on
behalf of the learned counsel for the appellants. When the
appellants names are called out, there is no representation either.
We therefore, infer that they have no objection for us to proceed
with the further hearing of the case.
The plaintiff was established as a non-governmental
organization by a philanthropist from Belgium by name
Prof. Fr. M.A. Windey and it was got registered under the Societies
Registration Act, 1860 bearing Registration No. 101 of 1971. It
has, as its principal objective, to secure overall development of
poor people without any barriers like caste, creed, colour, religion
or region, etcetera. The plaintiff has been established with the
motto - better village for a better world. Its principal source of
revenue is the donations made by Fr. Windey and others as well.
With its own funds, the plaintiff was acquiring lands and
developing them as housing colonies and allotting the plots to the
eligible beneficiaries, who are essentially persons without having
any house of their own.
Sometime during the year 1982, the plaintiff appears to have
acquired land from the government near bout Vellanki Village of
Veerulapadu Mandal, Krishna District, developed the same into a
housing colony, got constructed houses and allotted one each to
56 families, which are essentially drawn from the lowest economic
and social strata, such as Scheduled Castes and Scheduled Tribes.
They have named the colony as Dharmapuri Colony. Subsequent
to establishing the said housing colony and finding its success, the
plaintiff has purchased from one Sri Gude Narayana and his three
sons land of an extent of Acs. 8.70 cents through Ex.A1 registered
sale deed dated 24.09.1982 for a valuable consideration. Since
these lands are agricultural lands, it appears, the plaintiff got the
same cultivated initially for a period of five or six years, by its
volunteers, but however, it appears, one of the elders of the
community of Dharmapuri Colony, by name Sri Nandru
Yesuratnam, who was also an Ex-Sarpanch of the Village, has
taken these lands on lease basis and cultivated the same. Sri
Yesuratnam was impleaded as the 1st defendant to the suit. It is
the specific case of the plaintiff that Sri Yesuratnam paid land
revenue to the lands cultivated by him on lease basis and obtained
tax receipts Exs.A24 and A25 in the name of the plaintiff from the
local Mandal Revenue Office on 11.12.2006.
However, due to the recent economic slowdown, particularly
in Belgium, the flow of donations to the plaintiff has almost dried
up. In those circumstances, the plaintiff has taken a decision to
sell off some of the assets acquired by it which are not being put to
effective use, so that it can still carry on its activities effectively.
Consequently, the suit schedule land of Acs.8.70 cents is what has
been decided to be sold off. On behalf of the plaintiff, it appears,
an offer was made to the residents of Dharmapuri Colony to
purchase the suit schedule lands and derive benefit there from by
cultivating those lands, but however, finding the response in that
regard being not very encouraging, the plaintiff organization has
decided to offer the lands for sale by conducting public auction. It
is appropriate to notice that at such auctions, the 1st defendant in
the suit, Sri Yesuratnam, participated and filed his bid for
Rs.75,000/- per acre, whereas another individual, by name Sri
Koti Ramayya gave the best offer of Rs.3,25,000/- per acre. In
those circumstances, the plaintiff organization has decided to
accept the offer made by Sri Koti Ramayya. At that stage, some of
the defendants made a false complaint against the plaintiff to the
District Collector, Krishna at Machilipatnam that it is indulging in
unauthorized sale of lands. With a view to protect the interests of
all concerned, the Collector reacted and directed the Office of the
Sub-Registrar not to entertain registration of any conveyance/sale
deed that would be presented by or on behalf of the plaintiff for
transferring the title over the suit schedule property. Coming to
know of the said development, the plaintiff has moved the District
Collector and also the local Mandal Revenue Officer-cum-
Tahsildar, who upon perusing Ex.A1 sale deed, realized that the
suit schedule lands are private patta lands purchased by the
plaintiff from out of its own funds and they have nothing to do with
the lands earlier secured by it from the government for developing
the housing colony known as Dharmapuri Colony in the village.
As a consequence of the inquiries conducted by the State
machinery, the pattadar pass book, Ex.A2, granted in favour of the
plaintiff under Section 6-A(2) of the Andhra Pradesh Rights in Land
and Pattadar Pass Books Act, 1971, the title deed, Ex.A3 and the
entries in 10(1) Adangal, Ex.A4, are found to be in order and
accurate and hence, the Tahsildar, through Ex.A5 letter dated
08.07.2010, has lifted the ban earlier imposed for registering any
conveyance. It will also be appropriate to note that under Section
6 of the aforementioned Act, every entry in record of rights shall be
presumed to be true until the contrary is proved or until it is
otherwise amended in accordance with the provisions of the said
Act. It will also be important to notice that for the purpose of
making a record of rights, the competent authority/appellate
authority/revisional authority exercises the same powers as that of
the civil Court, thus, signifying that grant of Ex.A2 pattadar pass
book and Ex.A3 title deed is not the result of any mechanical
exercise indulged in, but is the result of an exercise under a
statute.
Realizing that the revenue administration of the State has
lifted the ban and the plaintiff is likely to transfer the suit schedule
lands in favour of the highest bidder, Sri Koti Ramayya, the
defendants have encroached upon the suit schedule land and got
constructed a flag stand in the middle of it overnight. In those
circumstances, the plaintiff has approached the Superintendent of
Police of the District and the local Tahsildar to provide them the
necessary assistance for removing the flag stand illegally got
constructed in the suit schedule land. Though a couple of
constables from the local police station and the Revenue Inspector
came to the suit schedule land for extending the necessary
assistance to the plaintiff in removing the flag stand, but
nonetheless, because of the tense situation prevailing at the suit
schedule land, the helpless plaintiff together with the police and
the Revenue Inspector retreated from the suit schedule land. In
view of the encroachment, the plaintiff got issued the legal notice
Ex.A8 on 18.11.2010, requiring the defendants to remove
immediately the encroachments from the suit schedule land.
Finding that there is no response and the earlier correspondence
made by the plaintiff through Ex.A7 dated 11.11.2010 with the
Superintendent of Police and Ex.A6 dated 12.11.2010 with the
District Collector, Krishna at Machilipatnam has not produced the
desired result, a detailed legal notice has been got drawn through
Ex.A9 dated 24.11.2010 and got served not only on the defendants
but also on the District Collector. Excepting defendants No. 3 and
11, all other defendants have received the legal notice and the
District Collector also received the said Ex.A9 legal notice. The
respective postal acknowledgment cards in respect thereof were got
marked as Exs.A10 to A20. The registered postal covers addressed
to defendants No. 3 and 11 have been returned with an
endorsement by the Post Office that the addressees were
continuously absent for more than one week and hence, returned
to the sender. They were marked as Ex.A21.
At the stage when Exs.A6 to A9 were got issued by the
plaintiff, the defendants have trespassed into the entire schedule
land comprising Acs.8.70 cents and started raising thatched
houses in a skeleton form thereon. The plaintiff organization,
which is wedded to the concept of promoting the welfare of the
downtrodden, has gone to the extent of offering Acs.1.70 cents of
this land, free of cost, to be developed as a housing colony in
extension of the existing Dharmapuri Colony, when it was brought
to the notice of the plaintiff that the size of the 56 families for
whom houses were got constructed by the plaintiff at Dharmapuri
Colony has grown in the meantime, and consequently, more than
one family is forced to reside in one house. Therefore, with a view
to meet the needs of the community, the plaintiff organization has
agreed to set apart Ac.1.70 cents of land and allot it to the eligible
beneficiaries, free of cost, as well, but even that attempt has not
produced the desired result and the encroachers were not relenting
to vacate the suit schedule land. On the other hand, they have
taken a stand that the plaintiff organization does not have any
right whatsoever to alienate the suit schedule land and to make
profit out of it. Since the efforts made by the plaintiff organization
to impress upon one and all that its activities are no longer feasible
of being carried out in view of the meager flow of donations and
therefore, its resources have got to be augmented for carrying out
its objectives, have turned futile and the defendants kept on
representing that as Fr. Windey has died some time during the
year 2009, the plaintiff organization is not authorized to carry on
the activity of selling the suit schedule land. In those compelling
circumstances, the civil suit came to be instituted seeking a
declaration of title and a consequential mandatory injunction for
removing the encroachments from the suit schedule land and for
delivery thereof.
On behalf of the plaintiff, its Secretary, one Dr. T. Nagender
Swamy was examined as P.W.1. One of the three sons of Sri Gude
Narayana, by name Sri Gude Srinivasa Rao has been examined as
P.W.2 for the purpose of establishing the title of the plaintiff over
the suit schedule land. It is Sri Narayana, his son P.W.2 and his
other two sons, who jointly sold the suit schedule land through
Ex.A1 registered sale deed dated 24.09.1982. A 3rd party to the
entire lis, by name Sri Lanka Venkateswara Rao was examined as
P.W.3 on behalf of the plaintiff to establish that it is Sri Nandru
Yesuratnam, the 1st defendant in the suit, who cultivated the land
for sometime on behalf of the plaintiff and that encroachments
have been made over the suit schedule land only after the plaintiff
has initiated steps for disposing of the suit schedule land by
conducting pubic auction.
The 2nd defendant in the suit filed a detailed written
statement. Defendants, 4, 5, 6, 7, 8, 10, 11, 12, 14, 16, 18 and 19
adopted the said written statement filed by the 2nd defendant by
filing a memo to that effect on 17.06.2011, before the trial Court.
In the written statement, the 2nd defendant has taken the stand
that the plaintiff has no authority to dispose of the property,
inasmuch as Fr. Windey has intended the lands to be used for
constructing houses for the poorer segments of the society. The
2nd defendant has also taken the stand that the suit, as instituted
by the Secretary of the plaintiff organization, is unauthorized and
is not maintainable also. An extravagant stand was also taken
that since Fr. Windey died in the year 2009, the plaintiff is not
entitled to deal with the land in such a manner to deny peaceful
possession and enjoyment of the suit schedule land which is
allotted in favour of the defendants by Fr. Windey.
Dr. T. Nagender Swamy, P.W.1 has filed the affidavit in lieu
of his chief-examination, which, virtually, reiterates the suit claim.
P.W.1 has categorically deposed that because of the economic
slowdown, particularly in Belgium, the funding of the plaintiff
organization has suffered a great setback, as the flow of donations
has considerably become negligible. He has filed Ex.A27, copy of
the minutes of the meeting of the plaintiff held on 29.08.2010,
whereat, he was elected as the Secretary of the plaintiff
organization. He has also filed a copy of the byelaws of the plaintiff
as Ex.A26 to vouch for the fact that it is the Secretary of the
plaintiff organization, who is authorized to sue and be sued on
behalf of the plaintiff. He has been cross-examined extensively on
behalf of the defendants. During the course of his cross-
examination, the scheme of the defence of the defendants unfolds
clearly. P.W.1 has clearly deposed that he was elected as the
Secretary of the plaintiff organization and the resolution passed to
that effect in the minutes of the meeting held on 29.08.2010 was
already marked as Ex.A27. He therefore, denied the suggestion
that he has not been empowered to prosecute the suit. In fact,
P.W.1 has reiterated the earlier stand of making available Ac.1.70
cents, free of cost, to be developed as a housing colony as a
measure of extension of the existing Dharmapuri Colony. In
paragraph 4 of the plaint, the following statements have also been
made:
. The plaintiff invited tenders for the sale of
schedule property of Ac.8.70 cents and the 1st defendant
participated in tenders. Nearly 6 persons submitted their
tenders. One Mr. Koti Ramaiah stood as highest bidder by
quoting Rs.3,25,000/- per acre and 1st defendant stood as
least bidder by quoting Rs.75,000/- per acre. So the plaintiff
decided to accept the highest bid and he paid earnest money.
Some of the beneficiaries of Dharmapuri including the
defendants met the plaintiffs functionaries, appealed them
that their families have increased and two or more families are
staying in one house and so to allot some place for their
houses. The functionaries of plaintiff asked them to provide a
list of houseless people with their residence proof, so that they
may discuss the matter in the Governing Body and inform
them. The defendants and others submitted the list. The
matter was discussed with Governing Body and the Governing
Body was kind enough to consider their request and agreed to
allot Ac.1.70 cents and the same was informed to the
defendants and others. In the meantime, all the defendants
and their yes men joined hands with criminal intent to grab
the entire schedule land. All the defendants formed into an
unlawful assembly. Out of their evil plans they submitted an
application No. 8931 to the District Collector in Praja Vani
which was held on 08.04.2010 at Vijayawada stating that the
officials of Plaintiff for their selfish ends are selling the
schedule lands and to stop registration of it. Accordingly, the
Tahsildar, Veerulapadu issued a letter to Sub-Registrar,
Kanchikacharla to stop the registration of the schedule
land (Emphasis is brought out now)
All we need to observe from the above is that the plaintiff is
very truthful and faithful to the hilt to the cause for which it was
established as a non-governmental organization. As was already
noticed supra, P.W.2 is one of the vendors through whom the suit
schedule land was purchased by the plaintiff through Ex.A1.
Hence, the right, title and interest of the plaintiff over the suit
schedule land are held as established by virtue of Exs.A1, A2 and
A3. Therefore, the civil Court had found that the plaintiff has the
title and right over the suit schedule land and accordingly, held
that it is entitled for declaration of its right over the suit schedule
land. We affirm this finding of the civil Court as it is in accord with
the principles enshrined behind Sections 61, 62 and 91 of the
Indian Evidence Act.
So far as the defence of the defendants that the suit
schedule land has been acquired only for purposes of allotting to
them by the plaintiff organization is plainly meritless, for the 2nd
defendant, who was examined as D.W.1, in his affidavit filed in lieu
of the chief-examination, on 23.08.2014, has described himself in
the following words:
I, Nandru Ramesh @ Dasu, S/o Nageswara Rao,
Hindu, aged about 29 years, resident of Dharmapuri,
Veerulapadu Mandal, Krishna District, do hereby solemnly
affirm and state on oath as follows.
The 2nd defendant is hardly of 30 years age, whereas Ex.A1,
conveyance deed, through which the plaintiff has acquired title to
the suit schedule land, was dated 24.09.1982, thus, signifying that
by the time of Ex.A1, the 2nd defendant, perhaps, may not have
been born. Notwithstanding the above, in paragraph 2 of his
affidavit filed in lieu of his chief-examination, the 2nd defendant
would depose that he and other defendants are in peaceful
possession and enjoyment of their respective houses since 1984 as
they were allotted to them by the plaintiff organization. He
proceeds thereafter and makes the following statement:
.. The erstwhile authority allotted the land to myself
and other defendants and others who are belongs to
Scheduled Castes. At that time, myself and other defendants
and other occupants also paid some considerations to the
plaintiff organization and they allotted to poor and houseless
people for living..
During the course of cross-examination, the first question that has
been put to D.W.1 was about his date of birth. He feigned
ignorance but added that he was about 25 or 26 years and studied
up to IX class. He admitted that Dharmapuri Colony was
established in the year 1983 by the plaintiff organization. He also
admitted that the plaint schedule property is that of the plaintiff
and that it has purchased the said property from the villagers and
he also knows the sellers of the suit schedule property as Sri Gude
Narayana and his sons. D.W.1 admitted that there is no written
permission from the plaintiff organization permitting the
defendants to live in the suit schedule property. D.W.1, when
confronted about the alleged statement of payment of
consideration for the suit schedule property to the plaintiff
organization, has this to say:
..An amount of Rs.1,25,000/- was given to Mikhel
Anthony for purchase of the schedule property. There is no
documentary proof to that effect.
But, D.W.1 has failed to talk, much less establish, any relationship
which the said Michel Anthony has with the plaintiff. Therefore,
the extravagant stand adopted by the defendants in the written
statement and sought to be reiterated in the affidavit filed in lieu of
chief-examination by D.W.1 that the suit schedule land was
allotted to the defendants that too for a consideration has been
completely nailed during the course of his cross-examination.
When D.W.1 was confronted that it is the 1st defendant Sri
Yesuratnam, who has remitted the land revenue to the local
government on behalf of the plaintiff organization, as is evidenced
by Exs.A24 and A25, dated 11.12.2006, he feigned ignorance of it.
Exs. A24 and 25 are found clearly coming in his way when D.W.1
said that they are in possession of the land for the past 8 or 9
years. From Exs.A24 and A25, it has clearly emerged that the 1st
defendant has cultivated the suit schedule land sometime, at least
up to 2006, on behalf of the plaintiff organization. It is therefore, a
clear case where the defendants have tried to encroach upon the
suit schedule land sometime only after the year 2006 possibly to
thwart the plaintiff organization from disposing it of by way of
public auction undertaken by it during the year 2009. In this
context, it will be relevant to take note of the cross-examination of
D.W.2. Defendant No. 7 has been examined as D.W.2. Though in
the affidavit filed in lieu of his examination-in-chief, D.W.2 made
certain statements against the plaintiff organization, but however,
when he was cross-examined on 14.11.2014, he has admitted that
the house where he was residing in Dharmapuri Colony was got
constructed by the plaintiff and that the plaint schedule property
is located on the Southern side of the said Dharmapuri Colony.
The next statement of fact acquires lot of significance in the
present context and hence, we prefer to quote it:
It is true till the year 2009, the plaint schedule
property was cultivated by Sri Nandru Yesuratnam. There is
no documentary evidence to show that I am residing in the
plaint schedule property.
Sri Nandru Yesuratnam, as was already noticed supra, was the 1st
defendant to the suit. Thus, even by the version of the defendants,
the suit schedule lands were cultivated by the 1st defendant on
behalf of the plaintiff organization till the year 2009 and it is
thereafter, the suit schedule lands suffered encroachments. D.W.2
has this to say further in his cross-examination:
It is not true to suggest that in the year 2010, we
erected thatched huts on plaint schedule property. Witness
adds 30 years back we erected thatched huts. I erected my
thatched hut either in the year 2010 or 2011 on plaint
schedule property. I know that the plaint schedule property
belongs to the plaintiff society. Witness adds Fr. Windey told
to us that the property was purchased for us. It is true there
is no documentary evidence with regard to the said fact
The claim of the defendants that the suit schedule property was
purchased for their benefit is a totally irrelevant aspect of the
matter for deciding/declaring the title of the plaintiff over the suit
schedule property. Such a stand was developed because of a
recital in Ex.A1 that the suit schedule property has been
purchased by the plaintiff for the purpose of construction of
houses. Such a recital reflecting the purpose for which the plaint
schedule property was purchased by the plaintiff in 1982 for a
valuable consideration does not dither the plaintiff from putting it
to an effective utilization, as considered appropriate and desired by
it for carrying forward the objectives for which it is established.
The purpose for which the suit schedule lands are acquired does
not firstly mention the cause of the defendants in the suit nor does
it clothe them with any right to encroach upon it.
We are clearly of the view that there is no justification
whatever behind the resistance offered by the defendants to the
suit claim. The trial Court is fully justified in decreeing the suit as
prayed for.
Though the appellants have not chosen to appear and make
their submissions before us, but nonetheless, we consider that it is
our duty to do complete justice to the cause of the parties.
The plaintiff organization has been rendering great service
for the cause of the downtrodden. It has been serving the poorer
segments of the society with the sole motto of securing a better
village for a better world to prevail. The plaintiff was very honest in
making a candid disclosure of the negotiations, which it
entertained with some of the defendants and other elders of
Dharmapuri Colony during the year 2009. In fact, there was no
such necessity for it to do so, as there was never any written
assurance held out by the plaintiff that they will part with valuable
land to the extent of Acs.1.70 cents, but nonetheless, the plaintiff,
as was already noticed by us earlier in this judgment, made a very
honest and truthful statement in the plaint itself that the
Governing Body of the plaintiff has decided to set apart Ac.1.70
cents so as to form an extension for the existing Dharmapuri
Colony. P.W.1 has reiterated the commitment of the plaintiff to
that effect when he was cross-examined.
We therefore, modify the decree and judgment passed by the
trial Court by directing the plaintiff to set apart land of a total
extent of Ac.1.70 cents from out of the suit schedule land adjoining
the existing Dharmapuri Colony, Vellanki Village, Veerulapadu
Mandal, Krishna District, though the said land is a very valuable
piece of land. The plaintiff organization is also entitled to allot
house sites to the eligible beneficiaries considered appropriate by
them in this land of Ac.1.70 cents and it is not necessary that any
or all of the defendants must be so included in the list of
beneficiaries. It is for the plaintiff to take a decision entirely on its
terms and out of its free will and volition. The suit schedule land,
comprising of Acs.8.70 cents shall forthwith be vacated by the
defendants, duly removing whatever huts that they have
constructed thereon and deliver vacant and peaceful possession
thereof to the plaintiff organization, under a proper
acknowledgment, within a maximum period of 30 days from today,
failing which, the plaintiff is entitled to get the decree executed. In
the process of such execution, the defendants have no manner of
right to continue to occupy the land of an extent of Ac.1.70 cents
either, entirely on their own, unless, in the meantime, the plaintiff
organization has granted them allotment letters of house sites. The
plaintiff is further entitled to deal with the balance Acs.7.00 of
land, as is considered appropriate by it, entirely on its own,
including the right of disposition.
In view of the conduct of the defendants, which is completely
blameworthy, we are of the opinion that costs of this Appeal are
also liable to be recovered from them. We quantify the hearing fee
of this Appeal at Rs.50,000/- (Rupees fifty thousand only).
With this, the Appeal stands dismissed with costs.
Consequently, the miscellaneous applications, if any shall
also stand dismissed.
-----------------------------------------
NOOTY RAMAMOHANA RAO, J
-------------
ANIS, J
10th February 2016
APPEAL SUIT No. 609 OF 2015
10-02-2016
Sri Nandru Ramesh & others. .Appellants
Village Reconstruction Organization (VRO), Rep. by its Secretary Dr. T.
Nagender Swamy & others.Respondents
Counsel for the Appellants: Sri P. Shashi Kiran
Counsel for the Respondents:Sri P. Roy Reddy
<GIST:
>HEAD NOTE:
? Cases referred
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
AND
THE HONBLE MRS. JUSTICE ANIS
A.S.No. 609 OF 2015
J U D G M E N T: (per Honble Sri Justice Nooty Ramamohana Rao)
Defendants 2, 4 to 8, 10 to 12, 14, 16, 18 and 19 in the suit
are the appellants. The 1st respondent herein is the plaintiff. We
prefer to describe, now on, the parties as they are arrayed before
the civil Court, for convenience sake.
The suit, O.S. No. 1 of 2011 was originally instituted on the
file of the II Additional District Judges Court at Vijayawada.
Subsequently, it came to be transferred to the Court of the XVI
Additional District & Sessions Judge at Nandigama, Krishna
District on point of jurisdiction, where it was re-numbered as
O.S.No. 92 of 2013.
When this Appeal was entertained by this Court, an
interlocutory order was passed on 24.08.2015 in A.S.M.P. No.
1758 of 2015, which was moved seeking for stay of execution of the
decree, directing the appellants to deposit the suit costs within
four weeks. That order has not been complied with, but however,
on three different occasions, adjournments were sought for on one
ground or the other. On 07.12.2015, entertaining A.S.M.P. No.
2169 of 2015, which was moved seeking extension of time for
depositing the suit costs by four more weeks, this Court allowed
the said Application permitting the appellants to deposit the suit
costs by way of demand draft drawn at par in the name of the 1st
respondent herein and to deposit the same before this Court by
14.12.2015, as by then, four weeks time sought for to comply with
the order passed by this Court on 24.08.2015 has already expired.
The order passed by us on 07.12.2015 also remained un-
implemented. When the matter was taken up on 27.01.2016,
there was no representation on behalf of the appellants and none
appeared on their behalf either. Hence, we have adjourned the
matter by two weeks, on our own, observing that failing to appear
in the matter henceforth, the proceedings will be taken up ex parte.
Today, when the matter is taken up, none appears on behalf
of the appellants and there is also no representation made on
behalf of the learned counsel for the appellants. When the
appellants names are called out, there is no representation either.
We therefore, infer that they have no objection for us to proceed
with the further hearing of the case.
The plaintiff was established as a non-governmental
organization by a philanthropist from Belgium by name
Prof. Fr. M.A. Windey and it was got registered under the Societies
Registration Act, 1860 bearing Registration No. 101 of 1971. It
has, as its principal objective, to secure overall development of
poor people without any barriers like caste, creed, colour, religion
or region, etcetera. The plaintiff has been established with the
motto - better village for a better world. Its principal source of
revenue is the donations made by Fr. Windey and others as well.
With its own funds, the plaintiff was acquiring lands and
developing them as housing colonies and allotting the plots to the
eligible beneficiaries, who are essentially persons without having
any house of their own.
Sometime during the year 1982, the plaintiff appears to have
acquired land from the government near bout Vellanki Village of
Veerulapadu Mandal, Krishna District, developed the same into a
housing colony, got constructed houses and allotted one each to
56 families, which are essentially drawn from the lowest economic
and social strata, such as Scheduled Castes and Scheduled Tribes.
They have named the colony as Dharmapuri Colony. Subsequent
to establishing the said housing colony and finding its success, the
plaintiff has purchased from one Sri Gude Narayana and his three
sons land of an extent of Acs. 8.70 cents through Ex.A1 registered
sale deed dated 24.09.1982 for a valuable consideration. Since
these lands are agricultural lands, it appears, the plaintiff got the
same cultivated initially for a period of five or six years, by its
volunteers, but however, it appears, one of the elders of the
community of Dharmapuri Colony, by name Sri Nandru
Yesuratnam, who was also an Ex-Sarpanch of the Village, has
taken these lands on lease basis and cultivated the same. Sri
Yesuratnam was impleaded as the 1st defendant to the suit. It is
the specific case of the plaintiff that Sri Yesuratnam paid land
revenue to the lands cultivated by him on lease basis and obtained
tax receipts Exs.A24 and A25 in the name of the plaintiff from the
local Mandal Revenue Office on 11.12.2006.
However, due to the recent economic slowdown, particularly
in Belgium, the flow of donations to the plaintiff has almost dried
up. In those circumstances, the plaintiff has taken a decision to
sell off some of the assets acquired by it which are not being put to
effective use, so that it can still carry on its activities effectively.
Consequently, the suit schedule land of Acs.8.70 cents is what has
been decided to be sold off. On behalf of the plaintiff, it appears,
an offer was made to the residents of Dharmapuri Colony to
purchase the suit schedule lands and derive benefit there from by
cultivating those lands, but however, finding the response in that
regard being not very encouraging, the plaintiff organization has
decided to offer the lands for sale by conducting public auction. It
is appropriate to notice that at such auctions, the 1st defendant in
the suit, Sri Yesuratnam, participated and filed his bid for
Rs.75,000/- per acre, whereas another individual, by name Sri
Koti Ramayya gave the best offer of Rs.3,25,000/- per acre. In
those circumstances, the plaintiff organization has decided to
accept the offer made by Sri Koti Ramayya. At that stage, some of
the defendants made a false complaint against the plaintiff to the
District Collector, Krishna at Machilipatnam that it is indulging in
unauthorized sale of lands. With a view to protect the interests of
all concerned, the Collector reacted and directed the Office of the
Sub-Registrar not to entertain registration of any conveyance/sale
deed that would be presented by or on behalf of the plaintiff for
transferring the title over the suit schedule property. Coming to
know of the said development, the plaintiff has moved the District
Collector and also the local Mandal Revenue Officer-cum-
Tahsildar, who upon perusing Ex.A1 sale deed, realized that the
suit schedule lands are private patta lands purchased by the
plaintiff from out of its own funds and they have nothing to do with
the lands earlier secured by it from the government for developing
the housing colony known as Dharmapuri Colony in the village.
As a consequence of the inquiries conducted by the State
machinery, the pattadar pass book, Ex.A2, granted in favour of the
plaintiff under Section 6-A(2) of the Andhra Pradesh Rights in Land
and Pattadar Pass Books Act, 1971, the title deed, Ex.A3 and the
entries in 10(1) Adangal, Ex.A4, are found to be in order and
accurate and hence, the Tahsildar, through Ex.A5 letter dated
08.07.2010, has lifted the ban earlier imposed for registering any
conveyance. It will also be appropriate to note that under Section
6 of the aforementioned Act, every entry in record of rights shall be
presumed to be true until the contrary is proved or until it is
otherwise amended in accordance with the provisions of the said
Act. It will also be important to notice that for the purpose of
making a record of rights, the competent authority/appellate
authority/revisional authority exercises the same powers as that of
the civil Court, thus, signifying that grant of Ex.A2 pattadar pass
book and Ex.A3 title deed is not the result of any mechanical
exercise indulged in, but is the result of an exercise under a
statute.
Realizing that the revenue administration of the State has
lifted the ban and the plaintiff is likely to transfer the suit schedule
lands in favour of the highest bidder, Sri Koti Ramayya, the
defendants have encroached upon the suit schedule land and got
constructed a flag stand in the middle of it overnight. In those
circumstances, the plaintiff has approached the Superintendent of
Police of the District and the local Tahsildar to provide them the
necessary assistance for removing the flag stand illegally got
constructed in the suit schedule land. Though a couple of
constables from the local police station and the Revenue Inspector
came to the suit schedule land for extending the necessary
assistance to the plaintiff in removing the flag stand, but
nonetheless, because of the tense situation prevailing at the suit
schedule land, the helpless plaintiff together with the police and
the Revenue Inspector retreated from the suit schedule land. In
view of the encroachment, the plaintiff got issued the legal notice
Ex.A8 on 18.11.2010, requiring the defendants to remove
immediately the encroachments from the suit schedule land.
Finding that there is no response and the earlier correspondence
made by the plaintiff through Ex.A7 dated 11.11.2010 with the
Superintendent of Police and Ex.A6 dated 12.11.2010 with the
District Collector, Krishna at Machilipatnam has not produced the
desired result, a detailed legal notice has been got drawn through
Ex.A9 dated 24.11.2010 and got served not only on the defendants
but also on the District Collector. Excepting defendants No. 3 and
11, all other defendants have received the legal notice and the
District Collector also received the said Ex.A9 legal notice. The
respective postal acknowledgment cards in respect thereof were got
marked as Exs.A10 to A20. The registered postal covers addressed
to defendants No. 3 and 11 have been returned with an
endorsement by the Post Office that the addressees were
continuously absent for more than one week and hence, returned
to the sender. They were marked as Ex.A21.
At the stage when Exs.A6 to A9 were got issued by the
plaintiff, the defendants have trespassed into the entire schedule
land comprising Acs.8.70 cents and started raising thatched
houses in a skeleton form thereon. The plaintiff organization,
which is wedded to the concept of promoting the welfare of the
downtrodden, has gone to the extent of offering Acs.1.70 cents of
this land, free of cost, to be developed as a housing colony in
extension of the existing Dharmapuri Colony, when it was brought
to the notice of the plaintiff that the size of the 56 families for
whom houses were got constructed by the plaintiff at Dharmapuri
Colony has grown in the meantime, and consequently, more than
one family is forced to reside in one house. Therefore, with a view
to meet the needs of the community, the plaintiff organization has
agreed to set apart Ac.1.70 cents of land and allot it to the eligible
beneficiaries, free of cost, as well, but even that attempt has not
produced the desired result and the encroachers were not relenting
to vacate the suit schedule land. On the other hand, they have
taken a stand that the plaintiff organization does not have any
right whatsoever to alienate the suit schedule land and to make
profit out of it. Since the efforts made by the plaintiff organization
to impress upon one and all that its activities are no longer feasible
of being carried out in view of the meager flow of donations and
therefore, its resources have got to be augmented for carrying out
its objectives, have turned futile and the defendants kept on
representing that as Fr. Windey has died some time during the
year 2009, the plaintiff organization is not authorized to carry on
the activity of selling the suit schedule land. In those compelling
circumstances, the civil suit came to be instituted seeking a
declaration of title and a consequential mandatory injunction for
removing the encroachments from the suit schedule land and for
delivery thereof.
On behalf of the plaintiff, its Secretary, one Dr. T. Nagender
Swamy was examined as P.W.1. One of the three sons of Sri Gude
Narayana, by name Sri Gude Srinivasa Rao has been examined as
P.W.2 for the purpose of establishing the title of the plaintiff over
the suit schedule land. It is Sri Narayana, his son P.W.2 and his
other two sons, who jointly sold the suit schedule land through
Ex.A1 registered sale deed dated 24.09.1982. A 3rd party to the
entire lis, by name Sri Lanka Venkateswara Rao was examined as
P.W.3 on behalf of the plaintiff to establish that it is Sri Nandru
Yesuratnam, the 1st defendant in the suit, who cultivated the land
for sometime on behalf of the plaintiff and that encroachments
have been made over the suit schedule land only after the plaintiff
has initiated steps for disposing of the suit schedule land by
conducting pubic auction.
The 2nd defendant in the suit filed a detailed written
statement. Defendants, 4, 5, 6, 7, 8, 10, 11, 12, 14, 16, 18 and 19
adopted the said written statement filed by the 2nd defendant by
filing a memo to that effect on 17.06.2011, before the trial Court.
In the written statement, the 2nd defendant has taken the stand
that the plaintiff has no authority to dispose of the property,
inasmuch as Fr. Windey has intended the lands to be used for
constructing houses for the poorer segments of the society. The
2nd defendant has also taken the stand that the suit, as instituted
by the Secretary of the plaintiff organization, is unauthorized and
is not maintainable also. An extravagant stand was also taken
that since Fr. Windey died in the year 2009, the plaintiff is not
entitled to deal with the land in such a manner to deny peaceful
possession and enjoyment of the suit schedule land which is
allotted in favour of the defendants by Fr. Windey.
Dr. T. Nagender Swamy, P.W.1 has filed the affidavit in lieu
of his chief-examination, which, virtually, reiterates the suit claim.
P.W.1 has categorically deposed that because of the economic
slowdown, particularly in Belgium, the funding of the plaintiff
organization has suffered a great setback, as the flow of donations
has considerably become negligible. He has filed Ex.A27, copy of
the minutes of the meeting of the plaintiff held on 29.08.2010,
whereat, he was elected as the Secretary of the plaintiff
organization. He has also filed a copy of the byelaws of the plaintiff
as Ex.A26 to vouch for the fact that it is the Secretary of the
plaintiff organization, who is authorized to sue and be sued on
behalf of the plaintiff. He has been cross-examined extensively on
behalf of the defendants. During the course of his cross-
examination, the scheme of the defence of the defendants unfolds
clearly. P.W.1 has clearly deposed that he was elected as the
Secretary of the plaintiff organization and the resolution passed to
that effect in the minutes of the meeting held on 29.08.2010 was
already marked as Ex.A27. He therefore, denied the suggestion
that he has not been empowered to prosecute the suit. In fact,
P.W.1 has reiterated the earlier stand of making available Ac.1.70
cents, free of cost, to be developed as a housing colony as a
measure of extension of the existing Dharmapuri Colony. In
paragraph 4 of the plaint, the following statements have also been
made:
. The plaintiff invited tenders for the sale of
schedule property of Ac.8.70 cents and the 1st defendant
participated in tenders. Nearly 6 persons submitted their
tenders. One Mr. Koti Ramaiah stood as highest bidder by
quoting Rs.3,25,000/- per acre and 1st defendant stood as
least bidder by quoting Rs.75,000/- per acre. So the plaintiff
decided to accept the highest bid and he paid earnest money.
Some of the beneficiaries of Dharmapuri including the
defendants met the plaintiffs functionaries, appealed them
that their families have increased and two or more families are
staying in one house and so to allot some place for their
houses. The functionaries of plaintiff asked them to provide a
list of houseless people with their residence proof, so that they
may discuss the matter in the Governing Body and inform
them. The defendants and others submitted the list. The
matter was discussed with Governing Body and the Governing
Body was kind enough to consider their request and agreed to
allot Ac.1.70 cents and the same was informed to the
defendants and others. In the meantime, all the defendants
and their yes men joined hands with criminal intent to grab
the entire schedule land. All the defendants formed into an
unlawful assembly. Out of their evil plans they submitted an
application No. 8931 to the District Collector in Praja Vani
which was held on 08.04.2010 at Vijayawada stating that the
officials of Plaintiff for their selfish ends are selling the
schedule lands and to stop registration of it. Accordingly, the
Tahsildar, Veerulapadu issued a letter to Sub-Registrar,
Kanchikacharla to stop the registration of the schedule
land (Emphasis is brought out now)
All we need to observe from the above is that the plaintiff is
very truthful and faithful to the hilt to the cause for which it was
established as a non-governmental organization. As was already
noticed supra, P.W.2 is one of the vendors through whom the suit
schedule land was purchased by the plaintiff through Ex.A1.
Hence, the right, title and interest of the plaintiff over the suit
schedule land are held as established by virtue of Exs.A1, A2 and
A3. Therefore, the civil Court had found that the plaintiff has the
title and right over the suit schedule land and accordingly, held
that it is entitled for declaration of its right over the suit schedule
land. We affirm this finding of the civil Court as it is in accord with
the principles enshrined behind Sections 61, 62 and 91 of the
Indian Evidence Act.
So far as the defence of the defendants that the suit
schedule land has been acquired only for purposes of allotting to
them by the plaintiff organization is plainly meritless, for the 2nd
defendant, who was examined as D.W.1, in his affidavit filed in lieu
of the chief-examination, on 23.08.2014, has described himself in
the following words:
I, Nandru Ramesh @ Dasu, S/o Nageswara Rao,
Hindu, aged about 29 years, resident of Dharmapuri,
Veerulapadu Mandal, Krishna District, do hereby solemnly
affirm and state on oath as follows.
The 2nd defendant is hardly of 30 years age, whereas Ex.A1,
conveyance deed, through which the plaintiff has acquired title to
the suit schedule land, was dated 24.09.1982, thus, signifying that
by the time of Ex.A1, the 2nd defendant, perhaps, may not have
been born. Notwithstanding the above, in paragraph 2 of his
affidavit filed in lieu of his chief-examination, the 2nd defendant
would depose that he and other defendants are in peaceful
possession and enjoyment of their respective houses since 1984 as
they were allotted to them by the plaintiff organization. He
proceeds thereafter and makes the following statement:
.. The erstwhile authority allotted the land to myself
and other defendants and others who are belongs to
Scheduled Castes. At that time, myself and other defendants
and other occupants also paid some considerations to the
plaintiff organization and they allotted to poor and houseless
people for living..
During the course of cross-examination, the first question that has
been put to D.W.1 was about his date of birth. He feigned
ignorance but added that he was about 25 or 26 years and studied
up to IX class. He admitted that Dharmapuri Colony was
established in the year 1983 by the plaintiff organization. He also
admitted that the plaint schedule property is that of the plaintiff
and that it has purchased the said property from the villagers and
he also knows the sellers of the suit schedule property as Sri Gude
Narayana and his sons. D.W.1 admitted that there is no written
permission from the plaintiff organization permitting the
defendants to live in the suit schedule property. D.W.1, when
confronted about the alleged statement of payment of
consideration for the suit schedule property to the plaintiff
organization, has this to say:
..An amount of Rs.1,25,000/- was given to Mikhel
Anthony for purchase of the schedule property. There is no
documentary proof to that effect.
But, D.W.1 has failed to talk, much less establish, any relationship
which the said Michel Anthony has with the plaintiff. Therefore,
the extravagant stand adopted by the defendants in the written
statement and sought to be reiterated in the affidavit filed in lieu of
chief-examination by D.W.1 that the suit schedule land was
allotted to the defendants that too for a consideration has been
completely nailed during the course of his cross-examination.
When D.W.1 was confronted that it is the 1st defendant Sri
Yesuratnam, who has remitted the land revenue to the local
government on behalf of the plaintiff organization, as is evidenced
by Exs.A24 and A25, dated 11.12.2006, he feigned ignorance of it.
Exs. A24 and 25 are found clearly coming in his way when D.W.1
said that they are in possession of the land for the past 8 or 9
years. From Exs.A24 and A25, it has clearly emerged that the 1st
defendant has cultivated the suit schedule land sometime, at least
up to 2006, on behalf of the plaintiff organization. It is therefore, a
clear case where the defendants have tried to encroach upon the
suit schedule land sometime only after the year 2006 possibly to
thwart the plaintiff organization from disposing it of by way of
public auction undertaken by it during the year 2009. In this
context, it will be relevant to take note of the cross-examination of
D.W.2. Defendant No. 7 has been examined as D.W.2. Though in
the affidavit filed in lieu of his examination-in-chief, D.W.2 made
certain statements against the plaintiff organization, but however,
when he was cross-examined on 14.11.2014, he has admitted that
the house where he was residing in Dharmapuri Colony was got
constructed by the plaintiff and that the plaint schedule property
is located on the Southern side of the said Dharmapuri Colony.
The next statement of fact acquires lot of significance in the
present context and hence, we prefer to quote it:
It is true till the year 2009, the plaint schedule
property was cultivated by Sri Nandru Yesuratnam. There is
no documentary evidence to show that I am residing in the
plaint schedule property.
Sri Nandru Yesuratnam, as was already noticed supra, was the 1st
defendant to the suit. Thus, even by the version of the defendants,
the suit schedule lands were cultivated by the 1st defendant on
behalf of the plaintiff organization till the year 2009 and it is
thereafter, the suit schedule lands suffered encroachments. D.W.2
has this to say further in his cross-examination:
It is not true to suggest that in the year 2010, we
erected thatched huts on plaint schedule property. Witness
adds 30 years back we erected thatched huts. I erected my
thatched hut either in the year 2010 or 2011 on plaint
schedule property. I know that the plaint schedule property
belongs to the plaintiff society. Witness adds Fr. Windey told
to us that the property was purchased for us. It is true there
is no documentary evidence with regard to the said fact
The claim of the defendants that the suit schedule property was
purchased for their benefit is a totally irrelevant aspect of the
matter for deciding/declaring the title of the plaintiff over the suit
schedule property. Such a stand was developed because of a
recital in Ex.A1 that the suit schedule property has been
purchased by the plaintiff for the purpose of construction of
houses. Such a recital reflecting the purpose for which the plaint
schedule property was purchased by the plaintiff in 1982 for a
valuable consideration does not dither the plaintiff from putting it
to an effective utilization, as considered appropriate and desired by
it for carrying forward the objectives for which it is established.
The purpose for which the suit schedule lands are acquired does
not firstly mention the cause of the defendants in the suit nor does
it clothe them with any right to encroach upon it.
We are clearly of the view that there is no justification
whatever behind the resistance offered by the defendants to the
suit claim. The trial Court is fully justified in decreeing the suit as
prayed for.
Though the appellants have not chosen to appear and make
their submissions before us, but nonetheless, we consider that it is
our duty to do complete justice to the cause of the parties.
The plaintiff organization has been rendering great service
for the cause of the downtrodden. It has been serving the poorer
segments of the society with the sole motto of securing a better
village for a better world to prevail. The plaintiff was very honest in
making a candid disclosure of the negotiations, which it
entertained with some of the defendants and other elders of
Dharmapuri Colony during the year 2009. In fact, there was no
such necessity for it to do so, as there was never any written
assurance held out by the plaintiff that they will part with valuable
land to the extent of Acs.1.70 cents, but nonetheless, the plaintiff,
as was already noticed by us earlier in this judgment, made a very
honest and truthful statement in the plaint itself that the
Governing Body of the plaintiff has decided to set apart Ac.1.70
cents so as to form an extension for the existing Dharmapuri
Colony. P.W.1 has reiterated the commitment of the plaintiff to
that effect when he was cross-examined.
We therefore, modify the decree and judgment passed by the
trial Court by directing the plaintiff to set apart land of a total
extent of Ac.1.70 cents from out of the suit schedule land adjoining
the existing Dharmapuri Colony, Vellanki Village, Veerulapadu
Mandal, Krishna District, though the said land is a very valuable
piece of land. The plaintiff organization is also entitled to allot
house sites to the eligible beneficiaries considered appropriate by
them in this land of Ac.1.70 cents and it is not necessary that any
or all of the defendants must be so included in the list of
beneficiaries. It is for the plaintiff to take a decision entirely on its
terms and out of its free will and volition. The suit schedule land,
comprising of Acs.8.70 cents shall forthwith be vacated by the
defendants, duly removing whatever huts that they have
constructed thereon and deliver vacant and peaceful possession
thereof to the plaintiff organization, under a proper
acknowledgment, within a maximum period of 30 days from today,
failing which, the plaintiff is entitled to get the decree executed. In
the process of such execution, the defendants have no manner of
right to continue to occupy the land of an extent of Ac.1.70 cents
either, entirely on their own, unless, in the meantime, the plaintiff
organization has granted them allotment letters of house sites. The
plaintiff is further entitled to deal with the balance Acs.7.00 of
land, as is considered appropriate by it, entirely on its own,
including the right of disposition.
In view of the conduct of the defendants, which is completely
blameworthy, we are of the opinion that costs of this Appeal are
also liable to be recovered from them. We quantify the hearing fee
of this Appeal at Rs.50,000/- (Rupees fifty thousand only).
With this, the Appeal stands dismissed with costs.
Consequently, the miscellaneous applications, if any shall
also stand dismissed.
-----------------------------------------
NOOTY RAMAMOHANA RAO, J
-------------
ANIS, J
10th February 2016
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