Judgment :-

S.B. Sinha, J.

1. Leave granted.

2. Appellant before us is a Mandal Panchayat. Respondent is a Corporation constituted and registered under the Road Transport Act, 1951. It filed a suit for grant of a decree for mandatory injunction to demolish the shops constructed by the appellant herein as also for a decree for grant of perpetual injunction restraining them from proceeding with the illegal construction of shops over the disputed space alleging that just behind the same, it runs a bus stand and in the middle portion whereof, a PWD owned road is used for egress and ingress of the passengers. It has two gates through which the buses enter into and exit for their destination. For safety of the passengers, there exists a wicket gate. The said open space is said to be belonging to and maintained by the PWD authorities.

It was contended that the land over which the shops were being constructed by the appellant did not belong to it and, thus, the same was totally illegal. Appellants, in their written statement, accepted the topography but urged that the purported wicket gate is not in use. It was stated that there existed a 30 ft. space belonging to Mandal Panchayat in between the compound wall and the bus stand.

3. The learned Trial Judge decreed the said suit holding that the Secretary of the appellant-Panchayat having admitted in the cross-examination that they did not have any document of title in respect of the land in suit and furthermore having regard to the fact that the breadth of the major district road has to be 30 meters and, thus, appellant did not have any right, title or interest in or over the suit land. It was furthermore held :

"If at all the defendants wants to construct shopping complex, it should be beyond the 50 from the centre of the road. It can be seen from the sketch map Ex.D.7 that the shops are being constructed by the defendants at a distance of 9 meters from the centre of the road and the breadth of the shops upto the compound wall of the bus stand is 5.60 meter. In other words the total area between the centre of road up to the compound wall is 14.60 meters which is less than 15 meters from the centre of the road and so it can be said that whatever area is available from the centre of road up to the compound wall of the bus stand is the area belongs to the main road shall be 30 meters. Besides it can be said that 1 meter 3.3 and 14.60 meters 48.18 approximately and this area (48) is less than 50 and under Ex.P.25 the defendants were permitted to raise the construction of shopping complex beyond 50 from centre of the road, but now the construction undertaken is 48-49 which is not permissible. In sum & substance, it can be said that there are cogent and convincing materials on records to hold that the disputed area of 15 where upon the shopping complex is being raised by the defendants between the compound wall of the bus stand and the main road is the property belongs to PWD department rather than the defence of the defendants that it is Gouthana property, and the plaintiff was successful to discharge the duty imposed upon it in this regard. Having regard to all these facts and circumstances of the case the present issued on had is liable to be answered in affirmative and it is answered accordingly."

An appeal preferred there against by the appellant was allowed by a judgment and decree dated 16th June, 2004 passed by the Civil Judge (Senior Division) Yadgir in R.A. No.55 of 1993. The Appellate Court in its judgment, inter alia, took into consideration the contention raised on behalf of the appellant that the shops were being constructed for the welfare of the public under the Jawahar Rozgar Yojna, as also the fact that the Chief Secretary of the Zilla Parishad by an order dated 9.8.1989 granted approval for the work directing the appellant to open a gate where the `wicket gate was situated.

It was furthermore opined that as the PWD itself never claimed the ownership of the road, the plainti