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Andhra High Court · body

2009 DIGILAW 294 (AP)

M. Anumakka v. Turpu Gopal Reddy

2009-04-21

R.KANTHA RAO

body2009
Judgment : This civil revision petition is filed against the order dated 23.10.2006 passed in E.P. No. 137 of 2006 in O.S. No. 131 of 2004 by the Additional Senior Civil Judge, Kurnool. 2. The E.P. was filed by the respondent/decree holder after obtaining a decree in a suit for specific performance of agreement to sell, whereunder the revision petitioners were directed to pay a sum of Rs.1,30,000/- together with interest and costs as indicated therein. On the ground that the revision petitioners failed to satisfy the decree, the respondent/J.Dr sought for attachment and sale of the schedule mentioned property which according to the revision petitioners is assigned to the second revision petitioner by the Government under the provisions of A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (Act 9 of 1977). 3. The execution Court after making an enquiry into the above mentioned E.P. after affording opportunity to both parties held that the objection raised by the revision petitioners that the property being house property built in the assigned house site cannot be sold in execution is not tenable and passed an order to proceed further in execution proceedings. 4. The said order passed by the execution Court is put to challenge by the revision petitioners on the ground that it is contrary to the provisions of Sections 3 and 4 of A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (Act 9 of 1977) and the same is being illegal is liable to be set aside in this appeal. 5. I have heard the learned Counsel appearing for the revision petitioners/J.Drs as well as the respondent/decree holder. 6. The facts of the case are not in dispute. Admittedly the E.P. schedule property is acquired by the second revision petitioner by means of an assignment under the provisions of Act 9 of 1977. The contention urged before the Court below by the respondent/decree holder is that under the patta issued to the second respondent transfer is prohibited only for a period of ten years from the date of issuance of patta, the second respondent also mortgaged the property to A.P. Village and Khadi Industries which is an organization of the Government, he, therefore, is the owner of the property having salable interest and as such the property can be sold in execution of a decree passed by the Civil Court for realization of the decretal amount. 7. 7. On the other hand it is contended by the revision petitioners before the Court below that by virtue of the provisions of Sections 3 and 4 of Act 9 of 1977 and also in view of the fact that the J.Drs are landless poor persons, the property is inalienable and therefore it cannot be sold in execution of the decree passed in favour of the respondent/J.Dr. 8. Before the learned Court below as well as at the hearing of the present revision petition reliance is placed by the respondent on Shaik Bade Vs. District Collector, Visakhapatnam ( 2005 (5) ALT 635 ) wherein a learned single judge of this Court held that where an assignee who is an ex-serviceman executed a sale deed in favour of the writ petitioner nearly thirty years after the assignment, the sale is held to be valid, since the transfer of an assigned land by an ex-service man is prohibited only for a period of ten years from the date of issuance of patta as per G.O.M.s. No. 1117. 9. On the other hand reliance is placed by the learned Counsel appearing for the petitioners on Vanka Punnamma Vs. yadavali Jurala Narasimham (21 (1) ALD 36) Harijana Bazarappa Vs. H. Chakarala Ranganna ( 2004(1) ALD 284 ) wherein learned single judge in each case held that by virtue of Sections 3 and 4 of Act 9 of 1977, despite the fact that conditions attached to patta enable the assignee to alienate the property ten years after the assignment, the assigned property cannot be sold in execution of a decree. 10. I have gone through the relevant provisions of the Act and the decision relied upon by the respondent/J.Dr (Shaik Bade1) which relates to a sale of assigned land by an ex-service man who by virtue of G.O.Ms. No. 1117 is not prohibited to sell, the assigned lands ten years after issuance of patta in his favour. Further in the said case the ex-service man who is the assignee executed the sale deed in favour of the writ petitioner nearly thirty years after the assignment. Therefore, the facts on which the learned single .judge rendered the above mentioned decision stand on altogether different footing from the facts of the present case and, therefore, is not applicable. 11. Further in the said case the ex-service man who is the assignee executed the sale deed in favour of the writ petitioner nearly thirty years after the assignment. Therefore, the facts on which the learned single .judge rendered the above mentioned decision stand on altogether different footing from the facts of the present case and, therefore, is not applicable. 11. According to Section 3 of the Act, the assigned land 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. The provision further lays down that any acquisition made in contravention of the provisions in Section 3 prohibiting transfer of assigned land shall be deemed to be null and void. 12. Whereas Section 4 dealing with the consequences of breach of provisions of Section 3 in case of transfer of the assigned land in violation of provisions of Section 3 empowers the Government to take possession of the land from the transferee and restore the possession of the same to the original assignee or to other eligible landless poor persons and where there are no eligible landless poor persons available the resumed land will be utilized for public purpose. 13. As such, from the scheme of the Act, it can be understood that the object is to protect the assignees who are landless poor persons from being exploited by the rich. If the assigned property is a land the same has to be under the cultivation of the original assignee or his legal heirs and if it is a house site, the same has to be utilized for the purpose of constructing a house in the said site by the assignee and has to be enjoyed by him or his legal heirs. All necessary safeguards have been provided under the Act to see that the assigned property shall remain with the original assignee or his legal heirs and it shall be enjoyed by them only. 14. The assigned property, thus, is only heritable but not transferable. All necessary safeguards have been provided under the Act to see that the assigned property shall remain with the original assignee or his legal heirs and it shall be enjoyed by them only. 14. The assigned property, thus, is only heritable but not transferable. However, Section 6 of the Act lays down that the provisions of the Act shall not apply to the assigned land held on to the State or Central Government, any local authority, a co-operative society, a scheduled bank or such other financial institutions owned, controlled or managed by a State Government or Central Government, as may be notified by the Government in this behalf. From this it can be understood that the assignee can mortgage the land to the bodies above mentioned held by or under the control of the Government for the purpose of securing loan. 15. Therefore, the view taken by the learned trial Court that since the revision petitioner mortgaged the property to the A.P. Village and Khadi Village Industries it cannot resist the execution of the decree passed in favour of the respondents is totally erroneous. Mortgage of the assigned land by assignee in favour of the organization of the State Government does not in any way authorize a private individual to attach the property in execution of a decree. Further sub-section 4 of Section 3 of the Act clearly lays down that the provisions of Section 3 shall apply to any transaction 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 authority. As such there is a specific bar against the execution of a decree or order of a civil Court in respect of an assigned land and therefore any such execution is impermissible according to the above mentioned provisions of the Act. 16. Thus, from the scheme of A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (Act 9 of 1977) and more particularly in view of the specific restriction imposed in subsection 4 of Section 3 of the Act, the respondent/decree holder is precluded from bringing the E.P. schedule property which is an assigned one for attachment and sale in execution of the decree passed in his favour by the civil Court. 17. 17. Further, the view taken by the learned judges in the above referred two cases relied upon by the learned Counsel appearing for the petitioners reflects the legislative intent and the true meaning of Sections 3 and 4 of Act 9 of 1977 and the said two decisions were rendered in cases where the facts are almost similar to the facts of the present case. 18. As such the order passed by the learned trial Court is not only erroneous and also illegal. The said order suffers from material irregularity. 19. Consequently, the order passed by the Court below is set aside and the revision is allowed. There shall be no order as to costs.