Andhra Pradesh High Court - Amravati
Supuri Pullaiah vs Shaik Hasmath on 8 January, 2020
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
Civil Revision Petition Nos.2576 & 2582 of 2019
COMMON ORDER:
These two revision petitions, under Article 227 of the Constitution of India, are filed by the unsuccessful petitioner - defendant, having been aggrieved of two separate orders, both dated 07.08.2019, of the learned Senior Civil Judge, Mangalagiri, passed in IA.nos.554 & 555 of 2019 in OS.no.259 of 2017 respectively filed for reopening the matter for the purpose of filing additional written statement; and, for permission to file additional written statement.
I have heard the submissions of learned counsel appearing for the revision petitioner - defendant ['defendant', for brevity]. Notice served on the learned counsel for the respondents in the proceedings before the trial Court is held sufficient. None appeared for the respondents. I have perused the material record.
The introductory facts are as follows: - 'The wife and children of late Shaik Bashu instituted the suit against the defendant - petitioner herein on the foot of a registered mortgage deed, dated 25.05.2010, for recovery of Rs.5,00,000/-, which is the sum secured with interest and costs, inter alia, stating that the defendant borrowed the said sum from late Shaik Bashu and mortgaged the suit schedule property by duly executing the registered mortgage deed. The defendant having filed a written statement is resisting the suit. In the said suit, the defendant filed the subject IAs requesting to reopen the suit and accord permission to file additional written statement. The said applications were also resisted by the plaintiffs. On merits and by the orders impugned in these revisions, the trial Court dismissed the said applications of the defendant. Hence, the defendant is before this Court.' 2 MSRM, J C.R.P.Nos.2576 & 2582 of 2019 The case of the defendant in support of the present requests, in brief, is this: - 'The suit is filed for recovery of money on the foot of a registered mortgage deed. The suit is filed with false allegations. The alleged mortgaged property, that is, plaint schedule property is an assigned land. Its alienation by transfer or mortgage is prohibited under law. Since the property is an assigned land, the same was shown as a prohibited land (assigned land) of Mangalagiri municipality in the list of prohibited properties as per the proceedings in RC.no.2207/2015, E5, dated 18.05.2016, issued by the Collector, Guntur. Therefore, the question of passing of a preliminary mortgage decree against the said assigned land does not arise. The plaintiffs suppressed the said fact and filed the suit to grab the land and harass this defendant. When the defendant applied for issuance of market value certificate in respect of the schedule land, the office of the Sub-Registrar, Mangalagiri, by a letter, dated 05.03.2018, informed to the petitioner that the entire extent of land in Sy.no.232/3 is a prohibited land (assigned land) of Mangalagiri municipality as per the aforestated proceedings of the Collector, Guntur District. The said letter of the sub-registrar clearly reveals that the schedule land is an assigned land. In the said circumstances, the petitioner intends to file additional written statement to take the necessary defence in the above regard for proving the said defence. Hence, the two IAs, one for reopening the matter; and, the other to accord permission to file additional written statement are filed.' Per contra, the case of the plaintiffs is this: 'The allegations that the suit schedule land is a prohibited land (assigned land) of Mangalagiri Municipality as per the proceedings of the Collector, dated 18.05.2016, and that the question of passing the preliminary mortgage decree in respect of the said land does not arise and that the plaintiffs suppressed the facts and the suit is filed with false allegations are all false. The schedule property is not a property assigned by the Government. It is not an assigned land. The 3 MSRM, J C.R.P.Nos.2576 & 2582 of 2019 defendant has got valid title to the schedule property in terms of registered partition deed, dated 27.12.2005, vide partition deed no.9113 of 2005 registered in the office of the sub registrar, Mangalagiri. The said fact is mentioned in the registered mortgage deed. By the time of the registration of the registered mortgage deed, plaint schedule property is not earmarked as an assigned land or prohibited land. The petitions are filed only with a view to drag on the proceedings. The petitions filed are not bona fide. The petitioner is not entitled to the reliefs claimed in the petitions.
As already noted, after hearing both sides and considering the contentions of both the sides, the Court below dismissed both the applications of the defendant. Hence, the defendant is before this Court.
Learned counsel for the defendant, while reiterating the pleaded case of the defendant, which is already extracted supra, contended as follows: - 'The trial Court erred in dismissing the petitions of the defendant merely on the ground that the petitions are belatedly filed when the suit is at the stage of hearing arguments and on the further grounds that in the original written statement filed, on 18.06.2018, the defendant has not taken the proposed plea and that the assignment patta is not filed in support of the proposed pleading being sought to be introduced by way of additional written statement. The trial Court ought not to have held that the petition seeking permission to file additional written statement is liable for dismissal for not filing a document to prove the proposed pleading as at the time of considering the application seeking permission to file additional pleading, the Court is not supposed to examine the merits of the proposed pleading. The trial Court ought to have seen that along with the application seeking permission to file additional written statement, the petitioner already filed the letter issued by the sub- registrar to the petitioner wherein it is clearly mentioned that the subject land is a prohibited/assigned land of Mangalagiri municipality as per the proceedings 4 MSRM, J C.R.P.Nos.2576 & 2582 of 2019 of the Collector, Guntur. Therefore, there is adequate proof of the proposed defence of the petitioner - defendant. Hence, the orders impugned of the trial Court are liable to be set aside.' As already noted, the plaintiffs have not entered appearance. I have given earnest consideration to the facts and submissions. The question for consideration is - 'whether the defendant can be permitted to seek reopening of the matter and file additional written statement?' Admittedly, the suit is filed on the foot of a registered mortgaged deed for recovery of the money from the mortgaged property. The plaintiffs, who are prosecuting the suit, are the wife and children of the original mortgagee, who is no more. The defendant in the written statement (originally filed) has taken certain defences; but, did not take a defence that the land, which is the subject matter of the suit mortgage deed, is an assigned land. When the suit is at the stage of arguments and is ripe for posting for judgment, the defendant filed the present two IAs seeking to reopen the suit and to permit him to file the additional written statement to enable him to take a plea that the suit schedule property, which is mortgaged under the suit mortgage deed, is an assigned land and that the office of the sub-registrar, Mangalagiri, also furnished information informing that the entire extent of land in Sy.no.232/2 is prohibited land (assigned land) of Mangalagiri municipality as per the proceedings of the Collector, Guntur, dated 18.05.2016, and that, therefore, the property in the said survey number is in the list of prohibited properties, the registration of which is prohibited under the Indian Registration Act. The plaintiffs opposed the application inter alia stating that the petition is belatedly filed when the suit was posted for judgment by the trial Court after the arguments are concluded and that by the time the property is mortgaged and the mortgage deed is executed, the plaint schedule property is not 5 MSRM, J C.R.P.Nos.2576 & 2582 of 2019 earmarked as assigned land or prohibited land and that the defendant is unable to produce any patta like a DKT patta or assignment patta to show that the mortgaged property, that is, suit schedule property is an assigned land and that on the other hand, the defendant has got valid title to the property by virtue of registered partition deed, dated 27.12.2005, bearing document no.9113/2005, registered in the sub-registrar office, Mangalagiri, and that, therefore, the defence is a false defence and that the suit schedule property is not an assigned land.
In this backdrop, it is necessary to refer to the relevant provisions. Section 3 of A.P Assigned Lands (Prohibition of Transfers Act, 1977) reads as under:
3. Prohibition of transfer of assigned lands: -
(1) Where before or after the commencement of this Act any land has been assigned by the Government to a landless poor person for purposes of cultivation or as a house-site then, notwithstanding anything to the contrary in any other law for the time being in force or in the deed to transfer or other document relating to such land, it shall not be transferred and shall be deemed never to have been transferred; and accordingly no right or title in such assigned land shall vest in any person acquiring the land by such transfer.
(2) No landless poor person shall transfer any assigned land, and no person shall acquire any assigned land, either by purchase, gift, lease, mortgage, exchange or otherwise.
(3) Any transfer or acquisition made in contravention of the provisions of sub-section (1) or sub-section (2) shall be deemed to be null and void.
(4) The provisions of this section shall apply to any transaction of the nature referred to in sub-section (2) in execution of a decree or order of a civil court or of any award or order of any other authority.
(5) Nothing in this section shall apply to an assigned land which was purchased by a landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement of this Act and which is in the possession of such person for purposes of cultivation or as a house-
site on the date of such commencement.
Section 2 (1) of the said Act, which deals with the definition of assigned land reads as under:
"assigned land" means lands assigned by the Government to the landless poor persons under the rules for the time being in force, subject to the condition of non-alienation and includes lands allotted or transferred to landless poor persons under the relevant 6 MSRM, J C.R.P.Nos.2576 & 2582 of 2019 law for the time being in force relating to land ceilings; and the word 'assigned' shall be construed accordingly;
Explanation: - A mortgage in favour of the following shall not be regarded as an alienation, namely: -
(i) the Central Government, or the State Government or any local authority;
(ii) any co-operative society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964; and
(iii) any bank which includes - -
(a) the Agriculture Development Bank;
(b) the Reserve Bank of India constituted under the Reserve Bank of India Act, 1934;
(c) the State Bank of India constituted under the State Bank of India Act, 1955;
(d) a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959; and
(e) a corresponding new bank constituted under Section 3 of the Bank Companies;
As per the above said provisions, no landless poor person shall transfer any assigned land and no person shall acquire any assigned land, either by purchase, gift, lease, mortgage, exchange or otherwise. However, under the explanation supra a mortgage in favour of Central Government or the State Government or any local authority or any co-operative society registered or deemed to be registered under the AP Co-operative Societies Act, 1964 and any bank shall not be regarded as an alienation. Placing reliance on the provisions of the said Act 9 of 1977, it is sought to be contended that the suit mortgage transaction is prohibited under law and that the said mortgage transaction is void and, therefore, not enforceable under facts and in law. Be that as it may. The defendant is certainly required under law, if he wishes to succeed on this defence, to establish that the mortgaged property is an assigned property and that it was assigned by the Government under the Rules, which are in force at the time of assignment, if any, subject to the condition of non-alienation, as alienation is permissible under certain assignments. Be that as it may. Learned counsel for the defendant contends that this plea that the mortgage transaction is itself void being a legal plea can be taken even at the time of execution of the mortgage decree in the event the suit is decreed and that the 7 MSRM, J C.R.P.Nos.2576 & 2582 of 2019 defendant can always contend that the decree that may eventually be passed is not executable. He, therefore, submits that the defendant is entitled to raise the present defence by filing an additional written statement, with the permission of the Court, as even in the absence of a written defence, he can always urge that the mortgage transaction is void and the alienation through Court of the mortgaged property pursuant to the decree that may be passed is impermissible under law. As rightly contended merits of the proposed defence cannot be gone into while considering an application that is filed seeking permission to file additional written statement. [See Sampath Kumar Vs. Ayyakannu and another1] In view of the facts & legal position enunciated and as the defence is based on the provisions of law and subject to proof of the fact that the property in question is assigned by the Government, under the relevant rules for the time being in force, subject to the condition of non alienation, this Court finds that this is a fit case to permit the defendant to take the proposed defence by filing an additional written statement. Such a course meets the ends of justice, in the considered view of this Court.
For the aforesaid reasons, this Court holds that the Court below is not justified in dismissing the petitions merely on the ground that the requests were made belatedly.
In the result, both the Civil Revision Petitions are allowed and the orders impugned are set aside and IA.nos.554 & 555 of 2019 in OS.no.259 of 2017 on the file of the Court of the learned Senior Civil Judge, Mangalagiri, are allowed.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
____________________ M.SEETHARAMA MURTI, J 08.01.2020 Vjl 1 (2002) 7 SCC 559 8 MSRM, J C.R.P.Nos.2576 & 2582 of 2019 THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Civil Revision Petition Nos.2576 & 2582 of 2019 08.01.2020 Vjl