Andhra HC (Pre-Telangana)
Gunji Chittemma vs Kaki Immaniel And Ors. on 20 February, 2004
Equivalent citations: 2004(4)ALT354
JUDGMENT P.S. Narayana, J.
1. On 13-09-2002, the Second Appeal was admitted in view of the following substantial question of law.
2. Whether a civil Court has got power to go into the correctness of the patta granted by the Revenue Authorities?
3. Sri Korrapati Subba Rao, the learned counsel representing the unsuccessful plaintiff in both the Courts below-appellant submitted that apart from the substantial question of law, on the strength of which, the Second Appeal was admitted, the other substantial questions of law to be decided in the present Second Appeal are as hereunder:
1. Whether the judgment and decree of the appellate Court are not vitiated not being in conformity with Order 41, Rule 31 of the Code of Civil Procedure, 1908?
2. Whether non consideration of Exs.A9 and A10 by the Courts below can be said to be in accordance with law?
4. The learned counsel while elaborating the submissions, had pointed out that in the light of the evidence of D.W.1, it is clear that the plaintiff has been in possession of the property as on the date of institution of the suit. The learned counsel also had pointed out that Ex.A9 dated 10-12-1991 is the temporary patta issued in the name of the plaintiff, who was examined as P.W.1, by the Mandal Revenue Officer, Karamchedu and it is stated that the said patta was cancelled by Mandal Revenue Officer on the ground of misrepresentation. The learned counsel would maintain that the said cancellation made by the concerned Mandal Revenue Officer is without jurisdiction since Mandal Revenue Officer is not competent to make such an order under the Board Standing Orders. Even otherwise, the learned counsel would maintain that as against the said order, an appeal was preferred and the Revenue Divisional Officer, Ongole, had allowed the said appeal and the order passed by him Ex.A10 had become final. The validity, or otherwise of Ex.A10, cannot be gone into in the present civil proceeding and the same had attained finality since the respondents-defendants had not questioned the same. The learned counsel also had taken this Court through the evidence of P.Ws. 1 to 3 and also the evidence of C.W.1, the Court witness and certain admissions made by the witnesses examined on behalf of the defendants. The learned counsel also would explain that in the light of Ex.A10, Ex.B2=Ex.X2, the statement given by P.W.1 before the Mandal Revenue Officer, Karamchedu would be of no consequence. The learned counsel also contended that it is no doubt true that a concession was made by the learned counsel representing the appellant-plaintiff before the appellate Court that the party is not relying on Ex.A1 the registered sale deed executed by the 1st defendant in favour of plaintiff, dated 24-10-1983. However, the learned counsel would contend that even if the said sale deed is to be held to have been brought into existence in contravention of the provisions of the Andhra Pradesh Assigned Lands (Prohibition of Transfer) Act, 1977, Act 9 of 1977 (hereinafter in short referred to as "Act" for the purpose of convenience), till the procedure contemplated by the provisions of the Act is follow, the possession of the plaintiff cannot be disturbed. The learned counsel also would contend that the relief of perpetual injunction cannot be negatived on the ground of such a statutory infraction unless the procedure as contemplated by the provisions of the Act had been complied with. Till then, definitely, the appellant-plaintiff is entitled to be in possession, unless her possession is disturbed by taking due recourse to law as provided by the provisions of the Act. The learned counsel made elaborate submissions how the appellant is entitled to the relief of perpetual injunction at least to this limited extent both against the 1st and 2nd respondents, the husband and wife-defendants 1 and 2 in the suit on the strength of prior possession by virtue of Ex.A1 and subsequent thereto in view of Exs.A9 and A10 and especially in the light of Ex.A10 attaining finality and the 2nd respondent-2nd defendant not questioning the same.
5. Per contra, Sri Srinivasa Rao, representing Sri Ghanta Rama Rao, the learned counsel, representing respondents 1 and 2 would contend that specifically in the appellate Court, the rights if any, flowing out of Ex.A1 had been given up. The learned counsel also would contend that though the assignment patta in favour of 1st respondent-1st defendant of the year 1978 was not produced, in view of the material available on record and also the evidence of C.W.1 and in view of Ex.B2=Ex.X2, it is clear that the subject matter of the suit is only assigned land amenable to the provisions of the Act. In the light of Sections 3 and 4 of the Act, no enforceable legal right can be claimed by the plaintiff as against the respondents-defendants. The learned counsel also contended that there must be an enforceable obligation and equally a corresponding legal right, which can be enforced in Court of law in favour of the plaintiff-appellant so as to get the relief of perpetual injunction. The learned counsel also had pointed out that in the light of evidence of C.W.1 and also Exs.B1, B2, X1 to X3, even on equity, the appellant-plaintiff is not entitled to the relief of the perpetual injunction since she had not approached the Court with clean hands. The learned counsel also would maintain that having made a statement before the Mandal Revenue Officer, Karamchedu, marked as Ex.X2=Ex.B2, now the appellant-plaintiff cannot go back on such statement made and cannot take advantage of Ex.A10 on the ground that the said order had attained finality. At any rate, the learned counsel would contend that in the light of the concurrent findings recorded by both Courts below, it is not a fit case to be interfered with in a Second Appeal.
6. Heard both the learned counsel and perused the oral and documentary evidence available on record, the findings recorded by the Court of first instance and the findings recorded by the appellate Court as well. Several factual aspects are not in controversy between the parties, though there has been some controversy relating to the aspect of possession at the relevant point of time. In the light of the substantial questions of law, which had been already referred to supra, the said questions need not be repeated again. At para 10 in A.S.No.16 of 1998 on the file of Senior Civil Judge, Parchur, the points for consideration were framed as hereunder.
1. Whether the judgment and decree of the lower Court are sustainable?
2. To what relief?
7. As can be seen from the discussion commencing from paras 11 up to 23, since all the aspects had been considered by the appellate Court though the framing of the points for consideration cannot be said to be in conformity with Order 41, Rule 31 of the Code of Civil Procedure, 1908, this Court is of the opinion that the same had been complied within substance and hence, the appellant cannot succeed on this ground.
8. The other two questions relate to the jurisdiction of the civil Court to go into the correctness of the patta granted by the Revenue Authorities and non-consideration of Exs.A9 and A10 in accordance with law by the Courts below. The facts in nutshell are as hereunder:
9. The appellant herein as plaintiff filed O.S.No.113 of 1992 on the file of Principal Junior Civil Judge, Parchur, for permanent injunction restraining defendants 1 and 2 in the suit-respondents 1 and 2 herein from in any way interfering with peaceful possession and enjoyment of the plaint schedule property. The Mandal Revenue Officer, Karamchedu, District Collector, Ongole and Revenue Divisional Officer, Ongole, were impleaded as defendants 3 to 5 as per orders in I.A. No.77 of 1994, dated 22-08-1994. It was pleaded in the plaint that the suit land of an extent of Ac.0.30 cents has been in possession and enjoyment of the plaintiff and the plaintiff Gunji Chittemma has been cultivating the same in Sy.No.191/92 under Dhanya Lakshmi Lift Irrigation. It was also pleaded that originally, the land belonged to late Anisetti Ramanayya and as per the provisions of the Land Ceiling Act, patta was granted in favour of the 1st defendant, who in turn sold away the suit land to the appellant-plaintiff who is a landless poor, on 24-10-1983 under registered sale deed for a consideration of Rs.4000/- and possession was also delivered. It was also pleaded that she has been paying cist and has been paying water charges to the Lift Irrigation Society and the cist receipts and water charge receipts also were filed along with the plaint. It was further pleaded that she complained to the Revenue Divisional Officer, Ongole, having come to know that the 1st defendant played mischief and the Revenue Divisional Officer, Ongole, was kind enough to issue an order to reassess the suit schedule land in favour of the plaintiff and the Mandal Revenue Officer, Karamchedu issued 'D' namuna in favour of plaintiff vide R.C.C.No.582/91, dated 10-12-1991 paying the market value of Rs.150/- and Rs.450/- subsequently and thus the proceedings became final and thus, the assignment became complete as per the Government Grant Act. It was further pleaded that the 1st defendant who had relinquished his right on 24-10-1983 having received Rs.4,000/-, with a view to harass the plaintiff made an attempt to take forcible possession and also made an attempt to spoil the paddy crop. It was also further pleaded that the 2nd defendant obtained temporary patta on 12-06-1993 for the suit schedule land from the 3rd defendant without possession pending rejection. It was further pleaded that the 3rd defendant did not follow the procedure laid down by the provisions of the Act before issuing patta in favour of 2nd defendant. In such circumstances, these parties also were added as pro forma parties.
10. The 1st defendant filed written statement denying the allegations in the plaint and had pleaded that the appellant-plaintiff suppressed the factum of sale in his favour by the 1st defendant before the Revenue Authorities and obtained temporary assignment and the 2nd defendant, the wife of the 1st defendant approached the Revenue Authorities with true facts and the Revenue Authorities on thorough enquiry, learnt about the fraud committed by the plaintiff, and the people of Kunkalamarru agitated for justice on behalf of the 2nd defendant. The temporary permission 'D' namuna in favour of plaintiff was cancelled by Mandal Revenue Officer, Karamchedu and the suit land was assigned to the wife of the 1st defendant, the 2nd defendant. It was further pleaded that the suit is bad for non-joinder of proper and necessary parties and the 2nd defendant is in possession of the land in question and hence, no relief can be granted in favour of the plaintiff, since there is no cause of action to file the suit.
11. The 2nd defendant filed a written statement pleading that the 1st defendant sold the plaint schedule land in contravention of the provisions of the Act and later the Revenue Authorities granted patta in her favour and the 1st and 2nd defendants have been living together as a single family. It was further pleaded that the schedule land is assigned land under the provisions of the Act and the registered sale deed dated 24-10-1983 alleged in the plaint is null and void as per the provisions of the said Act, and hence, no right or tile in the schedule land shall vest on the plaintiff and the transfer is non est in the eye of law. It was further pleaded that the defendants have been in possession and enjoyment of the property and that either the Mandal Revenue Officer or the Revenue Divisional Officer alleged in the plaint had no jurisdiction or authority to issue the 'D' namuna vide R.C.C.No.582/91, dated 10-12-1991, since the schedule land was already assigned to the 1st defendant. So, the alleged orders passed by the Revenue Divisional Officer, Ongole or 'D' namuna issued by the Mandal Revenue Officer, Karamchedu are non est in the eye of law. Hence, these orders are of no consequence.
12. The 3rd defendant also filed a written statement denying the plaint allegations and stating that the 1st defendant is the original assignee and later the 1st defendant violated the assignment rules and sold away the land to the plaintiff and later he issued patta in favour of plaintiff and he made entries basing on an application filed by the 1st defendant as if the plaint schedule property was encroached by the plaintiff and requested for reinstatement of the property from the hands of the plaintiff. It was further pleaded that later he has taken necessary steps and passed orders on 12-06-1993 against the plaintiff and the said order was set aside on 10-07-1994 by the Revenue Divisional Officer, Ongole, on an appeal filed by the plaintiff. It was also pleaded that from that day onwards, he never interfered with the plaint schedule property and there is no cause of action to implead the defendant as a party to the suit.
13. Defendants 4 and 5 filed a memo adopting the written statement of the 3rd defendant.
14. On the respective pleadings of the parties, issues 1 and 2 as hereunder were settled.
1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?
2.To what relief?
Subsequent thereto, the following additional issues were also settled.
1. Whether the registered sale deed dated 24-10-1983 in favour of the plaintiff is not valid under law as pleaded by 2nd defendant in her written statement?
2. Whether the plaintiff is not in possession of the suit property as pleaded in the written statement of 2nd defendant?
3. Whether this Court has no jurisdiction to try the suit as pleaded in the written statement of 2nd defendant?
4. Whether the 3rd defendant is not a necessary party to the suit as pleaded in the written statement of 3rd defendant?
15. Before the Court of first instance, evidence of P.Ws. 1 to 3, D.Ws. 1 to 5 and also C.W.1 the then Mandal Revenue Officer, Karamchedu had been recorded and Exs.A1 to A12, Exs.B1 and B2 and Exs.X1 to X3 were marked.
On appreciation of oral and documentary evidence, the Court of first instance arrived at a conclusion that inasmuch as the transaction itself is in contravention of the provisions of the Act, the plaintiff is liable to be non-suited and accordingly dismissed the suit without costs.
16. Aggrieved by the same, the matter was carried by way of appeal A.S.No.16 of 1998 on the file of Senior Civil Judge, Parchur, and the appellate Court after framing the points for consideration, which had been referred to supra, proceeded to discuss all the aspects at paras 11 to 23 and ultimately while answering point No.2 at para 25, had dismissed the appeal confirming the judgment and decree of the Court of first instance.
17. Aggrieved by the same, the present Second Appeal is preferred.
18. As can be seen from the material available on record, it appears that this land was a surplus land and a portion thereof was assigned in favour of the 1st defendant-1st respondent in the year 1978. The said document is not brought on record. However, the sale deed executed by the 1st defendant in favour of the plaintiff was marked as Ex.A1, which is dated 24-10-1983. No doubt, there is some factual controversy between the parties relating to the factum of possession. The non-production of the patta granted in favour of the 1st defendant may not alter the situation in any way for the reason that both the parties had proceeded on the ground that the land assigned in favour of 1st defendant is an assigned land and in contravention of the provisions of the Act, the alienation Ex.A1 was made and that was the reason why at the appellate stage a concession was made by the learned counsel representing the appellant that no rights would enure to the benefit of the appellant-plaintiff under Ex.A1. On the strength of this crucial aspect and in view of the concurrent findings recorded by both the Courts below, a contention was advanced by the learned Counsel representing the respondents 1 and 2 that the findings recorded by both the Courts below cannot be disturbed. It is no doubt true that on the strength of Ex.A9, dated 10-12-1991, the temporary patta issued in the name of plaintiff by Mandal Revenue Officer, Karamchedu, the suit had been instituted. Apart from Ex.A9, Exs.A3 to A8, the cist receipts also had been relied upon. Exs.A11 and A12 also are receipts. The said patta was cancelled by Mandal Revenue Officer, but the said order was set aside in Ex.A10 by the appellate authority. It is no doubt true that as far as this controversy is concerned, it is as between the plaintiff and the 2nd defendant who is claiming to be in possession of the property by virtue of a temporary patta issued by Mandal Revenue Officer, dated 12-06-1993 Ex.B1. It is pertinent to note that the Madal Revenue Officer, Karamchedu had cancelled the temporary patta Ex.A9 on the ground of misrepresentation. In G.Munilakshmamma vs. the District Collector, Chittoor District1 , it was held that the Madal Revenue Officer has no power to cancel D-form patta on the ground of misrepresentation or suppression of material facts and only Collector has power to cancel the same under Paragraph 18 of Board Standing Order 15. This question need not detain this Court any further for the reason that even the said order was set aside by the appellate authority in Ex.A10. Strong reliance was placed on the statement Ex.B2=Ex.X2 wherein it is stated that P.W.1 made a statement before the Mandal Revenue Officer leaving the rights in the plaint schedule property. But, in the light of Ex.A10, which is subsequent in point of time, this statement of P.W.1 would be of no consequence. It is no doubt true that on both sides witnesses were examined and oral evidence was appreciated by both the Courts below. Certain admissions relating to the possession of the plaintiff made by D.W.1 also had been pointed out in this regard. Yet another crucial aspect in the matter is that in the pleadings it was specifically pleaded by the plaintiff that the Mandal Revenue Officer, Karamchedu issued 'D'namuna patta in favour of plaintiff vide R.C.C.No.582/91, dated 10-12-1991 paying the market value of Rs.150/- and Rs.450/- and thus the proceedings became final and the assignment was completed as per the Government Grant Act. This crucial aspect in my considered opinion has some relevance to the nature of the transaction and the applicability of the provisions of the Act 9 of 1977. Evidently, this aspect was left untouched. But, however, concurrent findings had been recorded by both the Courts below to the effect that inasmuch as, Ex.A1 came into existence in contravention of the provisions of Act 9 of 1977, there is no enforceable legal right in favour of the appellant-plaintiff and hence, she is liable to be non-suited. It is no doubt true that serious contentions were advanced on the strength of the provisions of the Act, definition of assigned land and also Sections 3 and 4 of the Act. It is no doubt true that this aspect when a grant was made on the market value whether it would fall within the definition of the assigned land of the Act or not, had not been adverted to. It is no doubt true that as far as Ex.A10 is concerned, it is in relation to the 2nd defendant only. But, it is pertinent to note that when the infraction of the provisions of the Act had been complained of, it would have been just and proper to place on record transaction relating to 1978 also before the Court for better appreciation of the facts. Evidently, this was not done.
19. Having gone through the findings recorded by the Court of first instance and also the appellate Court and the oral and documentary evidence, especially, Ex.A10 and B1, which came into existence subsequent to the institution of the suit, it would be appropriate to permit the parties to amend the pleadings on the strength of these subsequent events and frame necessary issues and to decide all the questions afresh by permitting both the parties to let in further evidence in this regard inclusive of the crucial aspect that when the grant was made by the Government on payment of market value, whether such land would fall within the definition of assigned land under the provisions of the Act.
20. In the light of the findings recorded above, this Court is left without no other option, except to remand the matter to the Court of first instance after setting aside the judgments and decrees made by the Courts below.
21. Accordingly, the judgments and decrees made in O.S.No.113 of 1992 by the Principal Junior Civil Judge, Parchur and A.S.No.16 of 1998 by the Senior Civil Judge, Parchur, are hereby set aside and the matter is remitted to the Court of first instance for the purpose of affording an opportunity to both the parties to amend the pleadings and to further let in evidence and to dispose of the same in accordance with law after affording appropriate opportunity to both the parties in this regard.
22. Accordingly, the Second Appeal is allowed to the extent indicated above. No order as to costs.