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2011 DIGILAW 28 (AP)

Mamidi Sambasiva Rao v. Bali Ammanna

2011-01-20

B.CHANDRA KUMAR

body2011
Judgment 1. This Civil Revision Petition, under Section 115 of the Code of Civil Procedure, 1908, is directed against the judgment and decree, dated 28.07.2004, in C.M.A.No.15 of 2004 on the file of Additional Senior Civil Judge (Fast Track Court) Gudivada. 2. The brief facts of the case are as follows: The suit schedule property admeasuring 73 square yards, a residential site with premises bearing No. 6/339, with assessment No. 6781, consisting of two rooms with cement sheet roof, was originally assigned to the second defendant under Ex.B-1 patta, dated 10-10-2010. The second defendant is no more. Defendant Nos.3 to 6, who are his legal representatives, have been added as parties to the suit. The petitioner herein claims that he has purchased the suit schedule property from the second defendant under an agreement of sale, dated 03.01.1990, for a valuable consideration of Rs.5,000/- and he obtained the decree in O.S.No.152 of 1999, dated 28.04.2000. Pursuant to the said judgment, the petitioner filed E.P.No.148 of 2001 seeking a direction to the respondents to execute a registered sale deed. 3. The respondents have resisted the claim of the petitioner contending that the petitioner had obtained an ex parte decree and the property in question is a Government Porambok land and that it was assigned to the second defendant. Since it is an assigned land for construction of a house, the same cannot be alienated and the agreement of sale is hit by the provisions A.P. Assigned Lands (Prohibition of Transfer) Act, 1977 (for short, ‘the Act’). 4. Sri V.Parabrahma Sastri, learned counsel for the petitioner contended that the vendor cannot raise the defence that he has no title to the property. His second submission is that originally the second defendant had been in possession of the property since more than 32 years prior to agreement of sale and, therefore, he had already perfected his title by virtue of an adverse possession, and even the Government would not have evicted him and, therefore, by virtue of an adverse possession, he had alienated the property in favour of the petitioner. 5. Sri Raghu, learned counsel for the respondents submitted that the Courts below have considered the provisions and the legal aspect and gave concurrent findings, which cannot be disturbed in a revision. 6. As far as the identity of the property is concerned, the same is not in dispute. 5. Sri Raghu, learned counsel for the respondents submitted that the Courts below have considered the provisions and the legal aspect and gave concurrent findings, which cannot be disturbed in a revision. 6. As far as the identity of the property is concerned, the same is not in dispute. Ex.B.1 is the patta granted in favour of the second defendant as a house site. In this regard Section 3 of the Act, reads as follows: “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, notiwithstanding 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.” 7. A reading of the above provision makes it crystal clear that the prohibition of alienation covers in respect of the lands assigned before or after the commencement of the Act. A reading of the above provision makes it crystal clear that the prohibition of alienation covers in respect of the lands assigned before or after the commencement of the Act. There is a deemed provision that any transfer or acquisition made in contravention of the provisions of Section 1(2) of the Act shall be deemed to be null and void and the provisions shall apply to any transaction of the nature referred to in sub Section (2) of the Act in execution of a decree or order of civil Court or any award or of any other authority, irrespective of the fact whether a vendor can raise such a defence or not and whether he had title or not. The provision is absolute and it is not conditional. Therefore, the petitioner cannot say that the alienation is hit by the above referred provision of the Act. 8. Coming to the second aspect whether the second defendant had been in possession of the property since more than 32 years prior to the date of the agreement of sale or not, the learned Senior Counsel has read the recitals of the agreement of sale, which is a registered document. But, unfortunately, the said document has not been marked by the lower Court. Since the document is not marked, the recitals of the same cannot be looked into. It appears that there was no dispute between the second defendant and the Government of Andhra Pradesh with regard to the possession of the second defendant and title of Government of A.P. When it is a Government land and even if it is accepted that the second defendant had been cultivating the land since last 32 years, in my view, the same should be treated as a permissive possession. 9. It is well settled to acquire title by virtue of adverse possession, a person should be in continuous, uninterrupted possession of the property and his possession should be open and adverse to real owner. That means the original owner i.e., Government of Andhra Pradesh should never claim its right over the property during the last thirty years. There is no such evidence in this case to show that the second defendant’s possession was adverse to the Government of Andhra Pradesh or that he had perfected his title by virtue of adverse possession. That means the original owner i.e., Government of Andhra Pradesh should never claim its right over the property during the last thirty years. There is no such evidence in this case to show that the second defendant’s possession was adverse to the Government of Andhra Pradesh or that he had perfected his title by virtue of adverse possession. Mere pleading that he had been in possession of the property since more than 32 years is not sufficient to hold that he had perfected his title. It is nobody’s case that the revenue officials did not issue any notice to the petitioner seeking his eviction at any time during that period. 10. Now, at this stage, this Court cannot give a finding in revision disturbing the concurrent findings of both the Courts below. The legal position has been well settled that even a decree obtained by a civil Court is also hit by the provisions of the Act. Thus, it is clear that there are no merits in the revision petition and the same is liable to be dismissed.11. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.