Kallam China Basivireddi and ors. Vs. State of Andhra Pradesh Rep. by Its Collector, Krishna - Court Judgment

Excerpt:
- - anjana, learned assistant government pleader, has vehemently urged, drawing support from certain decisional law, that where the accretion was not gradual or imperceptible, the adjacent owners are not entitled to any rights and that the plaintiffs failed to produce any evidence that the alleged accretion was to the land purchased by them.orderm.n. rao, j.1. this letters patent appeal is from the judgment of a learned single judge of this court in a.s.no, 549 of 1978 affirming the decree of the learned subordinate judge, vijayawada in o.s.no.56 of 1975 dismissing the suit of the plaintiffs-appellants. the parties herein, for the sake of convenience, are referred to as they are arrayed in the suit.2. the 35 plaintiffs have instituted the suit for a declaration that they have acquired legal title to the plaint schedule property of ac. 33-45 cents being the lateral accretion to the pre-existing 'lanka lands' belonging to them for which their vendors obtained patta from the government and for consequential permanent injunction restraining the state of andhra pradesh and its subordinates from interfering with the peaceful possession of the plaintiffs and their successors in interest in respect of the suit lands.3. the suit lands are situate in devarapalli village of vijayawada taluk. the village was originally an estate belonging to the erstwhile zamindar of south vallur and it abuts the river krishna. in the year 1943, four individuals(i) makineni appayya; (ii) sunkara veerayya; (iii) anne venkata subbaiah; and (iv) kodali punnayya - obtained leasehold rights of the 'lanka' called 'potti dibba lanka' in fasli 1353 from the erstwhile zamindar. during the subsistence of the lease, the zamindar granted another lease in respect of the same lands to another set of four persons viz., (i) gudibanda venkata reddy; (ii) gudibanda seetharami reddy; (iii) gudibanda subba reddy and (iv) bonthu gopireddy, for a period of ten faslis beginning from 1354 and ending with 1363. the first set of four persons instituted a suit - o.s.no.73 of 1944 - against the second set of four persons and also their lessor - the zamindar of south vallur - on the file of the court of subordinate judge, vijayawada, alleging that they were inducted into possession and they acquired occupancy rights in the said 'lanka' but the defendants (the second set of 4 persons) took forcible possession of the land. consequently they sought a declaration of their occupancy rights and for possession. the suit was compromised on 12-11-1947 whereby the plaintiffs therein were given 2/5th share of the land with occupancy rights while the defendants got 3/5th share with occupancy rights. both the parties, on 21-12-1947, paid a sum of rs. 1,40,000/- to the zamindar and obtained a joint patta.4. the estate was taken over under the estates abolition act, 1948 on 7-9-1949. the two sets of parties again applied in 1954 for patta under the estates abolition act in respect of the existing lanka lands admeasuring ac. 293-00 in four plots along with another extent of ac. 470-33 cents in one plot in r.s.nos. 127 and 128. on 23-74959, the board of revenue granted pattas in respect of these plots. later on under two registered sale deeds - exs. a-l and a-2 dated 20th july, 1967 and 27th august, 1967 - ac. 95-00 of the lanka lands were sold by the pattadars in favour of the plaintiffs herein in r.s.nos. 127 and 128.5. it is the case of the plaintiffs that because of the change of course of the river krishna, certain accretions to the lands had taken place; in the first instance ac.25-00 and later on, ac. 8-43 cents. the entire land, they claimed, was in their occupation and effective possession but as they were told by the village karanam that the revenue officials were contemplating issuing of eviction orders in respect of the accreted lands, they filed the suit in question seeking the reliefs adverted to supra.6. in the written statement filed by the defendant while denying the averment of the suit land having been accreted to the patta lands, a specific assertion was made that under the provisions of section 11 of the estates abolition act, the plaintiffs are not entitled to anything in excess of the extent for which pattas were granted to them or to their predecessors in title and whatever land was kept in their possession by the plaintiffs without a patta must be treated as illegal as the same was vested in the government under section 3 of the estates abolition act. the plaint schedule land, according to the defendant-state, was a poramboke land belonging to the government. a legal plea taken in the written statement is that the predecessors in title of the plaintiffs were parties to w.p.no.3286 of 1967 decided by this court wherein it was observed that the government was vested with ample powers to eject unauthorised occupants in respect of lands not covered by pattas and besides the above writ petition, the judgment of the subordinate court in o.s.no.4 of 1957 and o.s.no.36 of 1956 concerning the actions of the predecessors in title of the plaintiffs preventing the government from taking any action constituted as res judicata disentitling the plaintiffs from seeking the reliefs claimed by them.7. the learned trial judge, on the pleadings, framed as many as five issues, of which, issues 1 and 2 pertained to the claim of the plaintiffs for title to the suit land and issue no. 5 related to the aspect of res judicata. three witnesses were examined for the plaintiffs and two for the defendant, p.w.i is the eighteenth plaintiff, p.w.2 is a resident of the nearby village and p.w.3 is one of the vendors under ex. a-2 sale deed in favour of some of the plaintiffs. the village karanam figured as d.w.2 and a clerk working in the taluk office gave evidence as d.w.1. the learned trial judge, after considering the evidence, both oral and documentary, held that no evidence whatsoever was produced by the defendant concerning the plea of res judicata. but on the question of the right of the plaintiffs to be in possession of the suit land as the same was an accretion to their patta lands, the finding recorded was that the accretion was there even in 1959 'by which time, the patta was applied for and as the same was not granted to the predecessors-in-title to the plaintiffs, any subsequent accretions thereto cannot be an accretion to the patta land. from this finding, followed the conclusion of non-suiting the plaintiffs.8. on appeal, a learned single judge of this court expressed the view that only in respect of accretions of smaller extents of land, the adjacent owner is entitled to patta but where the accretions are large, the state is entitled to claim them. on that view, the appeal was dismissed.9. sri subba reddy, learned counsel for the plaintiffs, says that the finding recorded by the learned trial judge that even prior to 1959 there were accretions to the patta lands was factually incorrect and once this finding goes, the plaintiffs are entitled to the decree sought by them.10. in opposition to this, ms. anjana, learned assistant government pleader, has vehemently urged, drawing support from certain decisional law, that where the accretion was not gradual or imperceptible, the adjacent owners are not entitled to any rights and that the plaintiffs failed to produce any evidence that the alleged accretion was to the land purchased by them.11. we have carefully considered the rival contentions. it is uncontroversial that patta in respect of ac. 95-00 was granted by the board of revenue on 23-7-1959. there was no evidence whatsoever that anterior to that, any survey was conducted or measurements taken to ascertain the existence or otherwise of any accretions to the lanka lands. ex.b-30, the survey conducted on 18-2-1960, shows the existence of ac.97-00 of land. evidently, in respect of the excess of ac.2-00 of land, either patta was not granted or at the time of granting patta, no measurements were taken. we are not concerned with the question how this discrepancy had arisen. ex.b-32 is the sketch prepared by the surveyor. both these sketches show that the accretion is to the southern side of the patta lands.12. when there is no evidence that prior to 1959, there were accretions of any extent, the finding arrived at by the learned trial judge that because the same were prior to the grant of patta, the plaintiffs were not entitled to claim any rights cannot be sustained. from the evidence of d.w.2, the karanam, it is clear that from the fasli year 1376 to 1382, there was no variation in the extent of the land but the variation was noticed first in fasli 1383. the admitted case of both the sides is that the river krishna alters its course as a consequence of which, the land boundaries also get changed; lankas form, sometimes, the existing lands disappear and other times, there are accretions to the lands. no suggestion whatever was made to the witnesses in the cross-examination that the accreted lands were not to the southern side of the patta lands nor was any suggestion made much less independent evidence was adduced that between the patta lands and the accreted lands, there was some other land belonging to the government thereby laying the foundation for the inference that the plaint schedule land was an accretion to the land belonging to the government and not to the plaintiffs' lands.13. the legal principle concerning accretion of lands and the rights flowing therefrom is not in doubt. the opinion of the judicial committee of the privy council in 13 m.i.a. 467 that :'where there is an acquisition of land from the sea or river by gradual, slow, and imperceptible means, there, from the supposed necessity of the case, and the difficulty of having to determine year by year, to whom an inch, or a foot, or a yard belongs, the accretion by alluvion is held to belong to the owner of the adjoining land'was the basis for the subsequent decisions bearing on this aspect. patanjali sastri, j. (as he then was) in his separate but concurring opinion in madras province v. jagannadha raju, air 1945 madras 396. while adverting to the decision of the privy council referred to supra, observed:'in 45 madras 207, their lordships observe that in dealing with the great rivers in india, it is necessary to bear in mind the comparative rapidity with which formations and additions take place and that the words 'slow and imperceptible' used in the earlier decisions are only qualifications of the word 'gradual' and must be understood and applied with reference to the conditions of the country where the question arises.'the words 'slow and imperceptible' occurring in 45 madras 207 are equated with the expression 'gradual'.14. p. jaganmohan reddi, j. (as he then was) speaking for a division bench of this court in state v. raja saheb of pithapuram, 1959 alt 305 had examined the question of accretions in respect of the river godavari and recorded a finding that it has a tendency 'to throw up and wash away lankas', and when the river reaches certain points, 'the current is slackened resulting in the silt being deposited and islands and accretions are created in the river bed'. what is said of the river godavari, we think, applies also to the river krishna.15. a learned single judge of this court in state of andhra pradesh v. k. suryanarayana, : air1963ap94 after considering elaborately the precedents bearing on this aspect, expressed the view that when land is gained by gradual accession, it is considered as belonging to the estate to which it is annexed. the learned judge also cautioned that the rule applied concerning accretion's in relation to the english rivers need not necessarily be extended while dealing with similar questions concerning rivers in india.16. that the accretion in question was slow and gradual but not abrupt or sudden was fully borne out by the evidence. in fasli 1369 according to the evidence of d.w.2, the village karanam, in the chief-examination, the excess land was ac. 4-93 cents, which implies that was the extent of accretion and it increased to ac. 33-43 cents subsequently by the date of the filing of the suit. the chief-examination of the village karanam, d.w.2, also shows that one more extent of ac. 51-5 cents of land also was an additional accretion. in the cross-examination it was elicited from him that the accreted land was to the southern side of the patta lands. a specific admission made by the karanam, d.w.2, was that 'the accreted suit land has been in the occupation of the plaintiffs or their predecessors in title from the beginning of its formation'. one aspect of the finding recorded by the learned trial judge that the suit land abuts the patta lands accords with the evidence brought on record.17. when the accreted land was to the southern side of the patta lands and when the plaintiffs and their predecessors in title have been in possession of the accreted land, the subject matter of the suit, we are unable to comprehend how the case of the plaintiffs can be rejected. as already stated by us in the beginning, the error committed by the learned trial judge was in thinking that the accreted land was in existence even prior to 1959 when the patta was granted. as already noticed, the evidence on record points out that the accretion was subsequent to 1959. if that be so, the plaintiffs' right to the land in question cannot be rejected.18. the view expressed by the learned single judge of this court that where the accretion happens to be a large extent of land, the same should go to the state and if it is a small extent, the adjacent owner should be benefitted, is without any foundation either in legal principle or precedent, we have asked the learned assistant government pleader to cite any authority in the form of an opinion of a text-book writer or a precedent lending support to the view of the learned single judge, but the learned government pleader has expressed her inability. we also could not secure any authority or principle supporting the view taken by the learned single judge.19. in the result, the letters patent appeal is allowed. the judgment of the learned single judge and the learned trial judge are set aside and the suit is decreed. each party shall bear its own costs throughout.

Judgment:
ORDER

M.N. Rao, J.

1. This Letters Patent Appeal is from the judgment of a learned single Judge of this Court in A.S.No, 549 of 1978 affirming the decree of the learned Subordinate Judge, Vijayawada in O.S.No.56 of 1975 dismissing the suit of the plaintiffs-appellants. The parties herein, for the sake of convenience, are referred to as they are arrayed in the suit.

2. The 35 plaintiffs have instituted the suit for a declaration that they have acquired legal title to the plaint Schedule property of Ac. 33-45 cents being the lateral accretion to the pre-existing 'lanka lands' belonging to them for which their vendors obtained patta from the Government and for consequential permanent injunction restraining the State of Andhra Pradesh and its subordinates from interfering with the peaceful possession of the plaintiffs and their successors in interest in respect of the suit lands.

3. The suit lands are situate in Devarapalli village of Vijayawada taluk. The village was originally an estate belonging to the erstwhile Zamindar of South Vallur and it abuts the river Krishna. In the year 1943, four individuals

(i) Makineni Appayya; (ii) Sunkara Veerayya; (iii) Anne Venkata Subbaiah; and (iv) Kodali Punnayya - obtained leasehold rights of the 'lanka' called 'Potti Dibba Lanka' in Fasli 1353 from the erstwhile Zamindar. During the subsistence of the lease, the Zamindar granted another lease in respect of the same lands to another set of four persons viz., (i) Gudibanda Venkata Reddy; (ii) Gudibanda Seetharami Reddy; (iii) Gudibanda Subba Reddy and (iv) Bonthu Gopireddy, for a period of ten faslis beginning from 1354 and ending with 1363. The first set of four persons instituted a suit - O.S.No.73 of 1944 - against the second set of four persons and also their lessor - the Zamindar of South Vallur - on the file of the Court of Subordinate Judge, Vijayawada, alleging that they were inducted into possession and they acquired occupancy rights in the said 'lanka' but the defendants (the second set of 4 persons) took forcible possession of the land. Consequently they sought a declaration of their occupancy rights and for possession. The suit was compromised on 12-11-1947 whereby the plaintiffs therein were given 2/5th share of the land with occupancy rights while the defendants got 3/5th share with occupancy rights. Both the parties, on 21-12-1947, paid a sum of Rs. 1,40,000/- to the Zamindar and obtained a joint patta.

4. The estate was taken over under the Estates Abolition Act, 1948 on 7-9-1949. The two sets of parties again applied in 1954 for patta under the Estates Abolition Act in respect of the existing lanka lands admeasuring Ac. 293-00 in four plots along with another extent of Ac. 470-33 cents in one plot in R.S.Nos. 127 and 128. On 23-74959, the Board of Revenue granted pattas in respect of these plots. Later on under two registered sale deeds - Exs. A-l and A-2 dated 20th July, 1967 and 27th August, 1967 - Ac. 95-00 of the lanka lands were sold by the pattadars in favour of the plaintiffs herein in R.S.Nos. 127 and 128.

5. It is the case of the plaintiffs that because of the change of course of the river Krishna, certain accretions to the lands had taken place; in the first instance Ac.25-00 and later on, Ac. 8-43 cents. The entire land, they claimed, was in their occupation and effective possession but as they were told by the village Karanam that the Revenue Officials were contemplating issuing of eviction orders in respect of the accreted lands, they filed the suit in question seeking the reliefs adverted to supra.

6. In the written statement filed by the defendant while denying the averment of the suit land having been accreted to the patta lands, a specific assertion was made that under the provisions of Section 11 of the Estates Abolition Act, the plaintiffs are not entitled to anything in excess of the extent for which pattas were granted to them or to their predecessors in title and whatever land was kept in their possession by the plaintiffs without a patta must be treated as illegal as the same was vested in the Government under Section 3 of the Estates Abolition Act. The plaint Schedule land, according to the defendant-State, was a poramboke land belonging to the Government. A legal plea taken in the written statement is that the predecessors in title of the plaintiffs were parties to W.P.No.3286 of 1967 decided by this Court wherein it was observed that the Government was vested with ample powers to eject unauthorised occupants in respect of lands not covered by pattas and besides the above writ petition, the judgment of the Subordinate Court in O.S.No.4 of 1957 and O.S.No.36 of 1956 concerning the actions of the predecessors in title of the plaintiffs preventing the Government from taking any action constituted as res judicata disentitling the plaintiffs from seeking the reliefs claimed by them.

7. The learned trial Judge, on the pleadings, framed as many as five issues, of which, issues 1 and 2 pertained to the claim of the plaintiffs for title to the suit land and issue No. 5 related to the aspect of res judicata. Three witnesses were examined for the plaintiffs and two for the defendant, P.W.I is the eighteenth plaintiff, P.W.2 is a resident of the nearby village and P.W.3 is one of the vendors under Ex. A-2 sale deed in favour of some of the plaintiffs. The village Karanam figured as D.W.2 and a clerk working in the Taluk office gave evidence as D.W.1. The learned trial Judge, after considering the evidence, both oral and documentary, held that no evidence whatsoever was produced by the defendant concerning the plea of res judicata. But on the question of the right of the plaintiffs to be in possession of the suit land as the same was an accretion to their patta lands, the finding recorded was that the accretion was there even in 1959 'by which time, the patta was applied for and as the same was not granted to the predecessors-in-title to the plaintiffs, any subsequent accretions thereto cannot be an accretion to the patta land. From this finding, followed the conclusion of non-suiting the plaintiffs.

8. On appeal, a learned single Judge of this Court expressed the view that only in respect of accretions of smaller extents of land, the adjacent owner is entitled to patta but where the accretions are large, the State is entitled to claim them. On that view, the appeal was dismissed.

9. Sri Subba Reddy, learned Counsel for the plaintiffs, says that the finding recorded by the learned trial Judge that even prior to 1959 there were accretions to the patta lands was factually incorrect and once this finding goes, the plaintiffs are entitled to the decree sought by them.

10. In opposition to this, Ms. Anjana, learned Assistant Government Pleader, has vehemently urged, drawing support from certain decisional law, that where the accretion was not gradual or imperceptible, the adjacent owners are not entitled to any rights and that the plaintiffs failed to produce any evidence that the alleged accretion was to the land purchased by them.

11. We have carefully considered the rival contentions. It is uncontroversial that patta in respect of Ac. 95-00 was granted by the Board of Revenue on 23-7-1959. There was no evidence whatsoever that anterior to that, any survey was conducted or measurements taken to ascertain the existence or otherwise of any accretions to the lanka lands. Ex.B-30, the survey conducted on 18-2-1960, shows the existence of Ac.97-00 of land. Evidently, in respect of the excess of Ac.2-00 of land, either patta was not granted or at the time of granting patta, no measurements were taken. We are not concerned with the question how this discrepancy had arisen. Ex.B-32 is the sketch prepared by the Surveyor. Both these sketches show that the accretion is to the southern side of the patta lands.

12. When there is no evidence that prior to 1959, there were accretions of any extent, the finding arrived at by the learned trial Judge that because the same were prior to the grant of patta, the plaintiffs were not entitled to claim any rights cannot be sustained. From the evidence of D.W.2, the Karanam, it is clear that from the Fasli year 1376 to 1382, there was no variation in the extent of the land but the variation was noticed first in Fasli 1383. The admitted case of both the sides is that the river Krishna alters its course as a consequence of which, the land boundaries also get changed; lankas form, sometimes, the existing lands disappear and other times, there are accretions to the lands. No suggestion whatever was made to the witnesses in the cross-examination that the accreted lands were not to the southern side of the patta lands nor was any suggestion made much less independent evidence was adduced that between the patta lands and the accreted lands, there was some other land belonging to the Government thereby laying the foundation for the inference that the plaint Schedule land was an accretion to the land belonging to the Government and not to the plaintiffs' lands.

13. The legal principle concerning accretion of lands and the rights flowing therefrom is not in doubt. The opinion of the Judicial Committee of the Privy Council in 13 M.I.A. 467 that :

'Where there is an acquisition of land from the sea or river by gradual, slow, and imperceptible means, there, from the supposed necessity of the case, and the difficulty of having to determine year by year, to whom an inch, or a foot, or a yard belongs, the accretion by alluvion is held to belong to the owner of the adjoining land'

was the basis for the subsequent decisions bearing on this aspect. Patanjali Sastri, J. (as he then was) in his separate but concurring opinion in Madras Province v. Jagannadha Raju, AIR 1945 Madras 396. while adverting to the decision of the Privy Council referred to supra, observed:

'In 45 Madras 207, their Lordships observe that in dealing with the great rivers in India, it is necessary to bear in mind the comparative rapidity with which formations and additions take place and that the words 'slow and imperceptible' used in the earlier decisions are only qualifications of the word 'gradual' and must be understood and applied with reference to the conditions of the country where the question arises.'

The words 'slow and imperceptible' occurring in 45 Madras 207 are equated with the expression 'gradual'.

14. P. Jaganmohan Reddi, J. (as he then was) speaking for a Division Bench of this Court in State v. Raja Saheb of Pithapuram, 1959 ALT 305 had examined the question of accretions in respect of the river Godavari and recorded a finding that it has a tendency 'to throw up and wash away lankas', and when the river reaches certain points, 'the current is slackened resulting in the silt being deposited and islands and accretions are created in the river bed'. What is said of the river Godavari, we think, applies also to the river Krishna.

15. A learned single Judge of this Court in State of Andhra Pradesh v. K. Suryanarayana, : AIR1963AP94 after considering elaborately the precedents bearing on this aspect, expressed the view that when land is gained by gradual accession, it is considered as belonging to the estate to which it is annexed. The learned Judge also cautioned that the rule applied concerning accretion's in relation to the English rivers need not necessarily be extended while dealing with similar questions concerning rivers in India.

16. That the accretion in question was slow and gradual but not abrupt or sudden was fully borne out by the evidence. In Fasli 1369 according to the evidence of D.W.2, the village Karanam, in the chief-examination, the excess land was Ac. 4-93 cents, which implies that was the extent of accretion and it increased to Ac. 33-43 cents subsequently by the date of the filing of the suit. The chief-examination of the village Karanam, D.W.2, also shows that one more extent of Ac. 51-5 cents of land also was an additional accretion. In the cross-examination it was elicited from him that the accreted land was to the southern side of the patta lands. A specific admission made by the Karanam, D.W.2, was that 'the accreted suit land has been in the occupation of the plaintiffs or their predecessors in title from the beginning of its formation'. One aspect of the finding recorded by the learned trial Judge that the suit land abuts the patta lands accords with the evidence brought on record.

17. When the accreted land was to the southern side of the patta lands and when the plaintiffs and their predecessors in title have been in possession of the accreted land, the subject matter of the suit, we are unable to comprehend how the case of the plaintiffs can be rejected. As already stated by us in the beginning, the error committed by the learned trial Judge was in thinking that the accreted land was in existence even prior to 1959 when the patta was granted. As already noticed, the evidence on record points out that the accretion was subsequent to 1959. If that be so, the plaintiffs' right to the land in question cannot be rejected.

18. The view expressed by the learned single Judge of this Court that where the accretion happens to be a large extent of land, the same should go to the State and if it is a small extent, the adjacent owner should be benefitted, is without any foundation either in legal principle or precedent, We have asked the learned Assistant Government Pleader to cite any authority in the form of an opinion of a text-book writer or a precedent lending support to the view of the learned single Judge, but the learned Government Pleader has expressed her inability. We also could not secure any authority or principle supporting the view taken by the learned single Judge.

19. In the result, the Letters Patent Appeal is allowed. The judgment of the learned single Judge and the learned trial Judge are set aside and the suit is decreed. Each party shall bear its own costs throughout.