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2010 DIGILAW 1050 (AP)

Kakuturu Ramanamma v. Arigundram Saralamma

2010-10-22

B.CHANDRA KUMAR

body2010
ORDER Aggrieved by the order and decree dated 23.10.2008 passed in E.P.No.178 of 2006 in O.S.N.1850 of 2004 by the I Additional Junior Civil Judge, Nellore, this revision has been filed. 2. The petitioner herein is the respondent and the respondent herein is the petitioner before the Court below. For the sake of convenience, the parties will be referred to as they were arrayed before the Court below. 3. The brief facts of the case are as follows:- Miss page 248 one Muthyala Shyamalamma on 21.10.1989 to Cherukumudi Murali Krishna and in the sale deed, the western boundary was shown as plot belonging to deceased K.Mallikarjuna Rao and that the deceased K.Mallikarjuna Rao was not having any estate during his life time and no estate of said K.Mallikarjuna Rao was devolved upon the Judgment Debtors. 5. Even though .no witnesses were examined and no documents were marked, the Court below allowed the said E.P. Aggrieved by the same, present revision has been filed. 6. Learned counsel for the petitioners submitted that assigned land or house site cannot be transferred as per Section 3 of the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977, ('the Act', for brevity) and in the light of the said Section, such lands cannot be brought to sale in Execution Proceedings. It is also his contention that originally, the petition schedule property was assigned to Kakuturi Rukminamma - mother of K.Mallikarjuna Rao, who executed a Will bequeathing the property to the second petitioner herein and that said K.Mallikarjuna Rao had no right to alienate the property as only right of enjoyment had been given to him as per the recitals of the Will. In support of his contentions, learned counsel had relied on judgment in case between Vaka Punnamma v. Yadavalli Jurala Narasimham (1) 2001 (1) ALT 362 wherein, it was held that irrespective of the fact that 10 years period had elapsed after the lands were assigned, such assigned lands cannot be sold. Learned counsel also relied on judgments in case between M. Anumakka and another v. Turupu Gopal Reddy (2) 2009 (4) ALT 401 and Harijmza Bazarappa v. H.Chakrala Ranganna (3) 2004 (1) An.W.R 646 (A.P.) = 2004 (1) ALD 284 . 7. Learned counsel also relied on judgments in case between M. Anumakka and another v. Turupu Gopal Reddy (2) 2009 (4) ALT 401 and Harijmza Bazarappa v. H.Chakrala Ranganna (3) 2004 (1) An.W.R 646 (A.P.) = 2004 (1) ALD 284 . 7. Per contra, Smt Y.L.Siva Kalpana Reddy, learned counsel representing Sri Kuruti Bhaskar Rao, learned counsel for the respondent, submitted that the petitioners herein and the second respondent had taken different pleas before the Court below; that the Court below considered all the facts and circumstances of the case; that there is nothing on record to show that the land was assigned to Kakuturu Rukminamma; that no documents have been marked by the Court below; and prays to dismiss the revision. 8. The only point that arises for consideration in this revision is whether the impugned order of the Court below is liable to be set aside. 9. As seen from the contents of the impugned order, no witnesses have been examined on behalf of the parties and no documents have been marked. The petitioners have filed a xerox copy of the Assignment Deed which shows that Kakuturi Rukminamma was assigned Plot No.127 in Block 'B' in Survey No.78/2 at Vedayapalem Village in Nellore District. They have also filed the xerox copy of the Will Deed dated 22.01.1996 said to have been executed by Kakuturu Rukminamma, resident of Chandramouli Nagar, Vedayapalem, Nellore District. 10. The settled legal position on this aspect is very clear. Section 3 of the Act is as follows:- 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 purpose of cultivation or as a house-site then, notwithstanding 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. (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 provision 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 of any award or order 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. 11. Sub-section (4) of Section 3 of the Act makes it very clear that the provisions of Section 3 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 of any award or order or order of any other authority. It is also clear that when the land has been assigned to the landless poor person for the purpose of cultivation or as house-site, the same cannot be brought to sale even in execution of a decree or order of a civil Court. Thus, the transfer of assigned land for the purpose of cultivation or a house-site has been prohibited under Section 3 of the Act. Thus, the settled legal position is that a decree-holder cannot bring the assigned lands for sale in execution of the decree passed in his favour by a Civil Court. Similar view had been taken in all the judgments referred supra which are relied upon by the learned counsel for the petitioners. 12. However, as seen from the records, though the petitioners' contended that the property brought to sale is an assigned land which is assigned as house-site in favour of Kakuturi Rukminamma - grand mother of petitioners 2 and 3, but, no such documents have been marked and no evidence has been adduced in support of such contention before the Court below. 13. 13. In the light of the above, I consider it just and reasonable to set aside the impugned order and remand the matter to the Court below. 14. Accordingly, the Civil Revision Petition is allowed by setting aside the impugned order of the Court below. The matter is remanded back to' the Court below granting liberty to the parties to adduce evidence in support of their contentions and mark documents, if any, and the lower Court shall consider the same in accordance with law and shall dispose of the matter as early as possible, preferably within a period of three (03) months from the date of receipt of the copy of this order. No order as to costs.