Point of law : where possession of the property was considered and thus grant of injunction to protect such possession was justified.

JUDGMENT :

M. VENKATA RAMANA, J.

1. The plaintiffs are the appellants. The respondents are the defendants. The deceased 1st appellant, who is now represented by the appellants 2 to 5 in this second appeal, filed a suit in O.S. No. 40 of 1989 on the file of the Court of then Subordinate Judge (now Senior Civil Judge), Rajam for the relief of permanent injunction against the respondents restraining them from interfering with his possession and enjoyment of the water tank (Koneru in Telugu) described in the plaint schedule as well as fishery rights therein. This tank shall be hereinafter referred to as “the suit tank.”

2. The case of the deceased 1st appellant in the plaint was that he had purchased the suit tank from Smt. Kuna Chinnammi and her sons under registered sale deed dated 11.12.1941 and since then he continued to be in possession and enjoyment of the same enjoying fishery rights therein.

3. Repaka was an estate village and after its abolition under the Madras Estates Abolition and Conversion into Ryotwari Act, 1948, the deceased 1st appellant applied for issuance of ryotwari patta under Section 11 of the above Act to the Settlement Officer, Visakhapatnam. He was not successful in that effort upto the Director of Survey Settlement and Land Records as well as Commissioner of Survey settlement and Land Records, Hyderabad and that he also filed W.P. No. 5045 of 1982 on the file of then High Court of Andhra Pradesh at Hyderabad against the order of the Commissioner of Survey settlement and Land Records, Hyderabad. This writ petition was also dismissed.

4. The specific case of the deceased 1st appellant was that the suit tank was dug and was improved by his predecessor-in-title and thus a private tank, which he has been in possession and enjoyment including exercising right to fish in that tank. However, the 1st respondent without any manner of right or interest began to make a claim through the 2nd respondent over this tank stating to the effect that it was handed over to the Gram panchayat. The deceased 1st appellant also got issued a notice under Section 80 CPC to the respondents and in spite of it, since the threat from the respondents continued, he claimed in the plaint that he was constrained to lay the suit.

5. The defence of both the respondents in their separate written statements is identical.

6. Both of them denied the right, possession and interest over the said tank claimed by the deceased 1st appellant and that it being a private tank as well as its purchase by the deceased 1st appellant under the sale deed dated 11.12.1941.

7. The respondent claimed that the suit tank is vested in the Government and that the Tahsildar, Ponduru handed over the same to the Gram Panchayat under the provisions of A.P. Gram Pachyats Act. Both of them contended that the suit tank located in Tungapeta, H/o Rapaka village in an extent of Ac. 1-00 is in S. No. 31/13 and it being used for drinking water purposes by the villagers. They further contended that this tank is classified in the revenue records as Poramboke.

8. Admitting the efforts of the deceased 1st appellant in getting a ryotwari patta in respect of this tank, including W.P. No. 5045 of 1982 filed by him in then High Court of Andhra Pradesh, Hyderabad, it is stated that the suit as filed could not have been entertained, since the civil Court did not have jurisdiction. Thus claiming that the deceased 1st appellant did not have any right to seek the relief of permanent injunction and questioning his bona fides in filing the suit, asserting that the Gram Panchayat has every right to this tank where fishery rights are being exercised by it by conducting public auction of such rights, both the respondents sought dismissal of the suit with exemplary costs.

9. On the pleadings, the learned trial Judge settled the following issues for trial:

1. Whether the plaintiff is entitled for permanent injunction as prayed for?

2. Whether the Civil Court has no jurisdiction to try the suit?

3. Whether the