THE HONOURABLE SMT. JUSTICE K. SUJANA

JUDGMENT:

Challenging the judgment and decree dated

30.08.2017 passed in O.S.No.126 of 2015 by the learned Judge, Family Court - cum - VII Additional District and Sessions Judge, Medak at Sangareddy, the present Appeal Suit is filed.

2. The brief facts of the case are that the plaintiff had filed a suit seeking perpetual injunction against the defendants to restrain them from interfering with his possession and enjoyment of the schedule property measuring Ac.14.10 guntas in Sy.No.135 of Rudraram village, Patancheru Mandal stating that his father, late Ghouse Mohd. Oosman, was the owner of extensive lands in Sy.Nos.135 to 154, including Komati Kunta situated in Sy.No.135, which had been dug by the previous pattadar and purchased along with the land in 1950. After the death of his father, the plaintiff and his family succeeded the property and declared their holdings under land ceiling proceedings, wherein no surplus land was declared. He asserted that Komati Kunta was a private kunta forming part of their patta land, which was earlier used for agriculture and cattle but had become polluted due to industrial influence. Consequently, the family decided to convert the land for non-agricultural purposes, obtained permission from the Revenue Divisional Officer, Sangareddy, and a layout was sanctioned in 2003 for development of plots including the kunta area. The grievance of the plaintiff was that, in October 2015, revenue and irrigation officials attempted to treat Komati Kunta as a Government tank and tried to fix the full tank level under Mission Kakatiya, ignoring his objections and without furnishing any authority to show control over the land. He therefore apprehended interference with his possession and filed the present suit.

3. The defence of the Government and its officers was that Komati Kunta was identified as a water source and included in the list of irrigation tanks transferred from Panchayat Raj to the Irrigation Department, with about Ac.23-27 ayacut being irrigated under it. They contended that under law, construction in full tank level area was prohibited, that the kunta was necessary to protect the interests of ayacutdars, and that the Government had a duty to safeguard water bodies. They therefore objected to the plaintiff and the developer from proceeding with constructions and urged that no injunction could be granted.

4. Basing on the above pleadings, the trial Court framed two issues and on behalf of the plaintiffs i.e., PW.1 was examined and Ex.A1 to A4 are marked. DW.1 was examined and Exs.B1 and B4 were marked on behalf of the defendants.

5. The trial Court, on a consideration of the pleadings, oral evidence and exhibits, found that the plaintiff’s claim was supported by revenue records and proceedings of the Revenue Divisional Officer permitting conversion of the entire land, including Komati Kunta, from agricultural to non-agricultural use and also noticed that the layout plan had been approved and plotting work was going on. Further, D.W.1 (Executive Engineer, Irrigation Department) admitted in cross-examination that Komati Kunta was a private kunta forming part of the plaintiff’s patta land, that once land was converted into non-agricultural use the irrigation department had no control, and that no objection had been raised at the time of conversion or sanction of layout. The trial Court further held that although Komati Kunta had earlier been shown in the irrigation department’s list of tanks, such entries did not confer any right over private property. The trial Court also relied on the principle laid down by the Hon’ble Supreme Court in Susetha v. State of Tamil Nadu, (2006 (7) SCJ), holding that once the nature of a private tank or kunta was irreversibly changed and converted to other use, the Government could not insist on restoring it as a water body. Since the defendants neither claimed title nor sought possession by counterclaim, the Court concluded that thei