Gram Panchayat, Cherukupalli v. Marisetti Sambasivarao

HONOURABLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.25 OF 2004 JUDGMENT: This Second Appeal is directed against the Decree and Judgment passed by the Principal Senior Civil Judge, Tenali in A.S.No.47 of 1995 confirming the Decree and Judgment passed by the Munsif Magistrate, Repalle in O.S.No.85 of 1988. I have heard the learned counsel appearing for the appellant-Gram Panchayat and the learned counsel appearing for the 1st respondent-plaintiff. The 1st respondent/Plaintiff filed the suit against the appellant and respondent 2 to 4 seeking permanent injunction restraining them from interfering with the ingress and egress to the road margin marked as E.F.G.H. of the plaint plan which is in front of the plaintiff’s house and its appurtenant site marked A.B.C.D. and also for mandatory injunction to remove the enclosures made with barded wire around the schedule road margin. Admittedly, the plaintiff has title and possession over the “ABCD” house and it is appurtenant site and constructions were made in front of his house after obtaining approval of the appellant- Gram panchayat. The schedule property against which, injunction was sought by the 1st respondent/Plaintiff belongs to the Government and it is a road margin adjacent to the Repalle-Bapatla road. The 1st respondent, however, did not claim any right in the said vacant site which is a road margin but his grievance is only that by putting barded wire around the said site, the access to the shop rooms is totally prevented resulting in huge loss to him. On the other hand, it was contended before the Courts below on behalf of the appellant-Gram Panchayat that since the property is vested in the Gram panchayat, no injunction in respect of the said property can be granted in favour of the 1st respondent/Plaintiff. Both the Courts below however recorded concurrent findings that if some constructions are made or any allotment was made to other individuals by the Gram Panchayat, it would affect the business of the 1st respondent-plaintiff which is being carried from four shop rooms constructed in front of the house and there is no place left to park the vehicles which come to the said shop rooms. Both the Courts below also while recording the concurrent findings to the effect that unless injunction is granted, the plaintiff will be deprived of ingress and egress to the shop rooms, took into consideration the report filed by the Advocate-Commissioner which is to the effect that “F to E” is an obstruction to the shop rooms of the 1st respondent-plaintiff and that the business in the said shop rooms would be affected if the site is used for any other purpose by the Gram Panchayat. Learned counsel appearing for the appellant/Gram Panchayat contended that by virtue of Section 144 of Gram Panchayat Act, 1994, all roads, markets, wells, tanks, reservoirs and water ways vested in or maintained by a gram panchayat shall be open to the use and enjoyment of all persons, irrespective of their caste and creed and granting of perpetual and mandatory injunction by both the Courts below is nothing but imposing restrictions on the right of the Grampanchayat. I am unable to agree with the contention of the learned counsel appearing for the appellant-Gram Panhayat since the 1st respondent-plaintiff is not claiming any rights in the plaint schedule site. The suit was filed only on the ground that the access from his shops to the main road shall not be obstructed by the defendants. Therefore, apparently, the suit filed by the 1st respondent is not meant for either occupying the schedule mentioned site or to make any constructions. It is not the case of the 1st respondent that nobody should pass through the plaint schedule site which is a road margin. His only grievance is that the access to the shop shall not be obstructed. Learned counsel appearing for the appellant-Gram Panchayat further contended that the suit itself is not maintainable for want of notice under Section 80 C.P.C. According to him, the 1st respondent-plaintiff filed the suit without issuing notice under Section 80 C.P.C. to the defendants and therefore he is not entitled for any relief. Learned trial Court did not frame any issue whether the suit is bad for non-issuance of notice under Section 80 C.P.C. and the Gram Panchayat also did not raise any such contention before the 1st appellate Court. Moreover, Section 80 C.P.C. in its strict sense is not applicable in case of suit against the appellate-Gram Panchayat. The plaintiff filed the suit against the appellant-Gram Panchayat and the relief is sought for against the appellant Gram Panchayat. The remaining defendants are only added as they are proper parties to the suit. Further, the suit has been instituted twenty two years ago and at this length of time, concurrent findings recorded by both the courts below cannot be disturbed on the technical ground that a notice Section 80 C.P.C. was not issued to the defendants in the suit. Learned counsel appearing for the appellant relied upon the decision apex Court reported in GANGAPPA GURUPADAPPA GUGWAD v. RACHAWWA AND OTHERS ([1]) wherein it was held that “In Suit against Government, Decision based on applicability of Section 80 C.P.C. as well as on merits would operate as res judicata in respect of all issues raised.” The said decision has no applicability to the facts of the present case. Strictly speaking, issuance of notice under Section 80 C.P.C. against Gram Panchayat is not necessary. Moreover, whether the decision operates as res judicata or had not arisen for consideration in the second appeal. It is well settled that unless there substantial question of law arises for consideration, the second appeal is not maintainable. This Court, while dealing with the Second Appeal, is not supposed to disturb the concurrent findings of fact even if some other view is possible. Here is a case where it is not possible to hold that the Judgment rendered by the trial Court confirmed by the 1st appellate Court are either perverse or not based on the evidence on record. Further, no substantial question of law is involved for consideration in the present second appeal. For the foregoing reasons, this Second Appeal is dismissed. There shall be no order as to costs. __________________________ Justice R.KANTHA RAO Dated 27-1-2011. Dvs HONOURABLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.25 OF 2004 Dated 27-1-2011 [1] AIR 1971 SC 442