GOTTIPULLA VENKATASIVA SUBBRAYANAM Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) In this appeal by special leave directed against the order of the Andhra Pradesh High Court, the only question canvassed on behalf of the appellants before us relates to the plea of private defence raised by them at the trial. The appellants who are ten in number were tried on as many as 22 charges by the Court of Additional Sessions Judge, Masulipatam and acquitted of all the charges. On appeal by the State against their acquittal there was a difference of opinion between the two Judges of the High Court constituting the Division Bench hearing the appeal. Whereas Sharfuddin Ahmed, J., upheld the order of acquittal on the basis of the plea of private defence, Mohd. Mirza, J., was of the opinion that the prosecution case was proved by overwhelming evidence. The case was in consequence laid before Basi Reddy, J., as provided by Section 429, Criminal Procedure Code. That learned Judge accepted the prosecution case and convicted the appellants on some of the charges. He expressed his final conclusion thus:

(2.) In this Court, as already observed, the appellants' learned Advocate confined his submission only to the question of right of private defence. According to the prosecution case there is a low lying area covering about 11 acres known as Gabbilalakunta (hereafter to be referred as the Kunta) about one mile away from Surampalli village but within its limits. This Kunta serving as a tank is fed by rain water. The village of Surampalli was a Mokhasa village in the erstwhile zamindari of Mirzapuram. Under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, the zamindari of Mirzapuram was taken over by the Government in 1950. As a result thereof the entire estate including Surampalli village and the Kunta became vested in the Government free from all encumbrances. This Kunta thus belonged to the Government. Some poor landless persons like P. Ws. 13 and 14, Shaik Madarsaheb and Kandavalli Anandam, began cultivating a part of this Kunta and started raising wet and dry crops. This started in the year 1953. Their occupation being unauthorised the Revenue Authorities collected penalty cist from the occupants. Accused Nos. 1 to 4, Gottipulla Venkatasiva Subbarayanam, Gottipulla Bapaiah, Gottipulla Seshaiah Gottipulla Subba Rao, who are the former Mokhasadars have their lands measuring about 80 acres to the south of the Kunta. There is a big tank called Erracheruvu located about three or four furlongs to the north of the Kunta. There are some channels through which water flows from this tank to various fields and one such channel serves to irrigate the field of the accused Nos. 1 to 4. According to the prosecution the lands of these accused persons should be irrigated by means of the channel running along the western side of the Kunta. According to the accused persons, however, their fields should receive water from the Kunta through sluices in its southern bund. In 1958 the Settlement Authorities registered the Kunta as a source of irrigation for an ayacut of 34 acres. Prior to that, sometime in August 1957, the occupiers of the Kunta had instituted a suit for injunction restraining accused Nos. 1 to 4 from interfering with the possession of the occupiers and also claiming damages on the allegation that the defendants had spoiled their crops and an interim injunction was actually granted on August 21, 1957.

(3.) Accused Nos. 1 to 4 also filed an application seeking to injunct the occupiers from opening the sluices (outlets) or making breaches in the bund of the Kunta during the pendency of the suit. On this application also the Court, by an order dated August 29, 1957, granted a temporary injunction in the following terms: