(Prayer: Appeal under section ---- against judgment and decree dated 27.07.2001 in A.S.No.178 of 1996 on the file of the Court of learned II Additional District Judge, East Godavari at Rajahmundry.)

1. This second appeal under Section 100 Code of Civil Procedure is directed against the decree and judgment in A.S.No.178 of 1996 dated 27.07.2001 on the file of the Court of learned II Additional District Judge, East Godavari at Rajahmundry (hereinafter referred to as “first Appellate Court”).

2. The respondent/plaintiff herein instituted the suit in O.S.No.1112 of 1989 before the Court of learned I Additional District Munsif at Rajahmundry (hereinafter referred to as “Trial Court”) for permanent injunction restraining the defendants, their men and agents from interfering with the peaceful possession and enjoyment of the plaint schedule land by the plaintiff and for costs of the suit.

3. Before adverting to the material and evidence on record and nature of findings in the judgment of the trial Court, it is necessary to scan through the case pleaded by the parties in their respective pleadings.

4. The case of the respondent/plaintiff in brief in the plaint was as follows:

                  i). The plaintiff is the absolute owner of the plaint schedule property by virtue of sale deed dated 25.07.1989 obtained from one Miriyala Varalakshmi, who acquired title by virtue of sale deed dated 25.06.1988 from one Pothabathula Ramarao and others, thereby, himself (plaintiff) and his predecessors are always been in possession and enjoyment of the same with absolute right and title.

                  ii). The defendants/appellants interfered with the possession and enjoyment of the plaintiff over the suit schedule property without initiating any proceedings. No notice was served disclosing the intention of the defendants to occupy any portion of the schedule land. Three days prior to the suit, the Government Surveyor took the measurements of the schedule land in the absence of the plaintiff and then he came to know that the defendants are proposed to occupy the portion of the suit land without assigning any reason and they tried to dispose the plaintiff forcibly. Thereby, the plaintiff is constrained to file the suit without issuing a notice under Section 80 of C.P.C. Hence, the suit.

5. The respondent No.3/defendant No.3 denying all the allegations in the plaint and contending in the written statement, which was adopted by the respondent Nos.1 and 2/defendant Nos.1 and 2 by filing memo, as follows:

                  i). The land in Survey No.186 measuring Ac.9.36 cents as against the total extent of Ac.13.80 cents which was originally notified has been only acquired under Notation Survey No.186/2 leaving an extent of Ac.4.48 cents. The land acquired by the Government belongs to four persons. The plaintiff purchased the acquired land in 1989 from his vendor, who acquired it only in the yar 1988 and these transactions have nothing to do with them, since the Government has already acquired and took possession and created a title in 1986 itself. Thereby, the plaintiff cannot be claimed as owner of the said property, and he did not raise any objection before the land acquisition officer while the land acquisition proceedings were going on, and Award was already prepared.

                  ii). The land acquisition proceedings were started in 1985, and the award was passed on 04.02.1986 and the notice of award was duly made to the rightful owner under Section 12 of the Land Acquisition Act, and the lands were taken possession on 22.03.1986 and under Section 16 it vests absolutely in Government free of all encumbrances.

                  iii). In compliance with the order of the High Court, Section 5(a) enquiry was also conducted and after the enquiry his lands were eliminated from acquisition proceedings. The plaintiff has no locus standi to file the suit. The plaintiff is not the owner of land in S.No.186/2 and the Government has nothing to give any notice at the time of enquiry as the lands were taken out prior to the alleged purchase.

                  iv). The land in Survey No.186/2 has been marked and duly measured by the surveyor and the subdivision record was scrutinized by the Deputy Inspector of Survey as required under Section 8 of the Land Acquisition Act and inspected by the Land Acquisition Officer and award was passed and taken possession by the Government. The plaintiff has nothing to do with the land acquired as he is not the owner, but the Government is the absolute owner of the land. Thereby, the suit is not maintainable and prayed to dismiss the suit with costs.

6. On these pleadings, the Trial Court settled the following issues for trial:

                  “1.Whether the defendants have not taken possession of plaint schedule land on 12.03.1986 by way of acquisition?

                  2. Whether the sale deeds dated 25.06.1988 and 25.07.1989 are valid?

                  3. Whether the plaintiff is in possession of the plaint schedule as on the date of suit? and

                  4. To what relief?”

7. During the trial, on behalf of the plaintiff/respondent, P.Ws.1 to 3 were examined, while relying on Exs.A.1 to A.3 in support of his contentions. On behalf of the defendants/appellants herein, D.Ws.1 and 2 were examined and Exs.B.1 to B.7 were exhibited.

8. Basing on the material and evidence, Trial Court came to conclusion that the plaintiff is not in possession and enjoyment of the entire extent of Ac.2.50 cents of land in Survey No.186 and as a part of it was acquired by the Government and as the plaintiff suppressed it and as the plaintiff did not approached the court with clean hands, he is not entitled to the equitable relief of permanent injunction. Moreover, as the suit is filed against the Government, notice under Section 80 C.P.C. is mandatory and the plaintiff did not give any such notice to the defendants prior to the institution of the suit. Mere filing of a petition under Section 80(2) of C.P.C. to dispense with the prior notice does not absolve the plaintiff to issue Section 80 C.P.C. notice. For that reason, the suit is not maintainable, and he is not entitled to the relief of permanent injunction, thus, dismiss the suit with costs, vide judgment and decree, dated 07.11.1996 in O.S.No.1112 of 1989.

9. It is against this decree and judgment in O.S.No.1112 of 1989, the respondent/plaintiff preferred an appeal before the first Appellate Court, vide A.S.Nos.178 of 1996 and the said appeal was allowed, vide judgment dated 27.07.2001, by setting aside the judgment and decree passed by the Trial Court.

10. Aggrieved by the said decree and judgment, dated 27.07.2001 passed in A.S.No.178 of 1996 by the first Appellate Court, the appellants/defendants preferred the present Second Appeal. This Court admitted the present appeal on 22.03.2002 by framing the following substantial questions of law:

                  “a). Whether the Civil Court can interfere with the Land Acquisition Proceedings with respect to 0.17 cents? and

                  b). Whether the suit is maintainable for want of Section 80 C.P.C. notice, which is mandatory?”

11. Heard Sri K.Vijay, learned Assistant Government Pleader appearing for the appellants/defendants. None appeared on behalf of the respondent/plaintiff despite sufficient opportunity.

12. Sri K.Vijay, learned Assistant Government Pleader appearing for the appellants/defendants submits that the plaintiff purchased the part of acquisition land, thereby, he cannot claim any injunction for the said land; that plaintiff never get possession of the land by virtue of sale deed obtained from his vendors and he got title over Ac.4.83 cents of land only, but not Ac.5.00 cents; that plaintiff did not approach the Court with clean hands; that the Civil Court has no jurisdiction to entertain the suit; that the plaintiff has not given Section 80 C.P.C. notice to the defendants prior to the filing of the suit, which is mandatory, thereby, prays to consider the present appeal.

13. For the sake of convenience, the parties hereinafter referred to as they arrayed before the Trial Court.

14. To decide the present appeal, this Court of the considered view that it is enough to answer the above substantial questions of law by evaluating the material available on record.

15. POINT NOs.1 & 2:

                  To decide the present points, it is required to note some factual aspects as culled out from the record. It is an admitted fact that the plaintiff is owner of the suit schedule property by virtue of Ex.A.1 sale deed dated 25.07.1989 obtained from one Miriyala Varalakshmi, who get the title over the said property under Ex.A.2 sale deed dated 25.06.1988 purchased from one Pothabathula Ramarao and others. As per the pleadings of defendant No.3 in the written statement itself, the said Pothabathula Ramarao approached the High Court and eliminated the property of him from the Land Acquisition proceedings. It is also an admitted fact that no survey notice was served by the defendants on the plaintiff, which is definitely fatal in the eye of law.

16. It is the categorical testimony of P.W.1 that by the time himself and his son purchased the land from Varalakshmi, it was surrounded by a fence with Kithanara Kattava. Before they purchased the land, their vendor was in possession of the same. Till now the Government has not given any notice to him informing him that they intend to survey his land or suggesting that he encroached any land belonging to Government.

17. Admittedly, there is a ‘Kattava’ separating the land of the plaintiff and others by virtue of consistent testimony of P.Ws.1 and 2. Furthermore, the testimony of P.Ws.1 and 2 is fortified by the testimony of P.W.3, who is adjacent landowner of the plaintiff. He (P.W.3) categorically also testified that the land purchased by P.Ws.1 and 2 is surrounded by Kattava and the Government never acquired any land of P.W.2.

18. It is also not the case of the defendants that the plaintiff encroached the lands that were acquired by the Government. As per the testimony of D.W.1 the total extent of land is Ac.13.84 cents under Survey No.186/2 and the Government acquired Ac.9.36 cents of land only in the said survey number. D.W.1 also admits that P.W.2 owns some land in Survey No.186/1 and he filed a writ petition before the High Court and his land was exempted from Acquisition and after excluding his land, the remaining land in S.No.186 for an extent of Ac.9.36 cents was acquired by the Government. Furthermore, as per the testimony of D.W.1, Ex.B.4 delivery report does not contain the signature of P.W.2. Thereby, it is clear in vivid terms that the land of P.W.2 was not acquired by the Government.

19. It is also categorical testimony of D.W.1 that he is not aware how much extent P.W.2 was owning as per the subdivision register and no land of P.W.1 was acquired and that he did not verify the adangal register relating to the schedule property. It is also his testimony that he is not aware that whether there is any ‘Kattava’ surrounding on all sides of the land of P.W.1.

20. As admitted by D.W.2-Surveyor, the subdivision of the land in S.No.186 took place only after the notifications relating to the Land Acquisition without any notice to the owners of the land, thereby, the same is not anymore valid and binding.

21. Furthermore, D.Ws.1 and 2 categorically admits that the acquired land is not very adjacent to the land of the plaintiff and it is only in the middle and that too the extent of Ac.9.34 cents as alone acquired and that the lands of the plaintiff were not measured in order to show that the plaintiff is possessing only Ac.4.83 cents. More so, as per Ex.B.1 Award the land of Pithabathula Ramarao was not acquired.

22. On perusal of the testimony of P.Ws.1 to 3 coupled with Exs.A.1 to A.3 and admissions made by D.Ws.1 and 2, it is categorical that any part of the land of the vendors’ vendor of the plaintiff was not acquired and there is a ‘Kattava’ on the eastern side of the plaintiff land demarking the lands of Janapureddivari people, which was acquired by the Land Acquisition proceedings.

23. The first Appellate Court on thorough and elaborate appreciation of the material on record rightly considered the case of the plaintiff. Admittedly, in view of the above discussion when there is no land acquisition taken place over the schedule property, even any notice to that effect, the apprehension that the Civil Court has no jurisdiction to entertain a suit against land acquisition proceedings does not arise.

24. Coming to the maintainability of the suit for want of Section 80 C.P.C. notice, it is pleaded by the plaintiff that three days prior to the suit the Government Surveyor without issuing any notice has taken the measurements of schedule land, and came to know that the defendants are proposed to acquire the portion of the suit land, which compelled him to file a suit without waiting any period under Section 80 C.P.C. The said cause also mentioned in the petition to dispense with the said notice, which is contemplated under the law. Admittedly a petition under Section 80(2) C.P.C. to dispense with the prior notice, and perusing the contentions in the said petition filed in support of the affidavit, was considered by the Trial Court, thereby, the question of maintainability for want of Section 80 C.P.C. notice absolutely does not arise. D.Ws.1 and 2 consistently admitted before the Trial Court that the plaintiffs land was excluded for acquisition by virtue of order of the High Court. Furthermore, altogether the defendants/Government contested the suit before the Trial Court and on merits only it was disposed off. Thereby, the said contention raised by the learned counsel for the defendants absolutely has no legs to stand. Thus, these points are answered accordingly.

25. Having regard to the above discussion, this Court has no hesitation to concluded that absolutely there are no valid grounds urged by the appellant to meddle with the well- articulated judgment of the first Appellate Court, which requires no interference of this Court. Thereby, this appeal has no merits and the same is liable to be dismissed.

26. In the result, the second appeal is dismissed by confirming the decree and judgment dated 27.07.2001 in A.S.No.178 of 1996 on the file of the Court of learned II Additional District Judge, East Godavari at Rajahmundry. There shall be no order as to costs.

                  Interim orders granted earlier, if any, stand vacated. Miscellaneous petitions pending, if any, stand closed.