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2020 DIGILAW 263 (AP)

M. Ramakrishna Prasad v. K. Singaiah, Vijayawada

2020-03-23

M.VENKATA RAMANA

body2020
JUDGMENT : 1. This appeal is directed against the decree and judgment in O.S.No.297 of 1988 dated 28.11.1998 of the court of learned Principal Senior Civil Judge, Narasaraopet. 2. The plaintiffs are the appellants. The defendants are the respondents. 3. During pendency of this appeal, the 1st respondent died. A memo was also filed on behalf of the appellants that his L.Rs. being the appellants as well as the second respondent were already on record and it was recorded. 4. The suit was instituted when the appellants were minors represented by their next friend Sri M.Apparao, son of Sri Venkatadri, resident of Jaggapuram, Edlapadu Mandal, Guntur District. During pendency of the suit, the appellants attained majority. The next friend, who represented them, in the suit when they were minors, continued the suit proceedings on their behalf, as their power of attorney holder. 5. The respondents 1 and 2 are the parents of appellants 1 to 3. The appellants 1 and 3 are gainfully employed living in different places, being the sons of respondents 1 and 2. The second appellant is the daughter of respondents 1 and 2 and after marriage she began to live with her husband at Chennai. The respondents 3 to 7 are the Government Authorities Belonging to Revenue Department. 6. The respondents 1,2 and 4 remained ex parte in the suit. 7. The suit was laid by the appellants for partition of the plaint schedule properties, to divide and allot three shares together to the appellants and for costs. 8. Item nos. 1 to 7 are agricultural lands, whereas item no.8 is a house along with a site and item No.9 is a vacant site. Items 1 to 9 are located at kavuru village whereas Items 10 to 18 are in Jaggapuram, H/o. Jaladi. 9. It is desirable to consider the case set up by the appellants and contesting respondents in their pleadings in the suit. 10. The appellants stated in the plaint that the plaint schedule properties are their joint family properties belonging to themselves as well as the 1st respondent wherein every one has 1/4th share. They further averred that the 1st respondent being their father was lazy and acted in a most negligent manner in conduct of the proceedings under A.P.Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short, ‘Act 1 of 1973’), detrimental to their interest. They further averred that the 1st respondent being their father was lazy and acted in a most negligent manner in conduct of the proceedings under A.P.Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short, ‘Act 1 of 1973’), detrimental to their interest. They also averred that the respondents 3 to 7 were trying to interfere with their possession and enjoyment of the plaint schedule properties wrongfully under the colour of orders in C.C.No.1919 of 1975 of the Land Reforms Tribunal, Narasaraopet under Act 1 of 1973 in respect of Ac.11-40 cents out of the plaint schedule lands, even though the orders so passed are void and without jurisdiction. They further averred that they have been claiming their right and interest to the plaint schedule properties and manner in which the nature of these lands was considered inappropriately by the above Tribunal without treating them as dry lands, since the property did not vest in the respondents 3 to 7 and did not determine or pay the compensation for the alleged excess lands, which were not taken over, they are entitled for their share. They further contended that the Civil Court has jurisdiction to entertain the suit and Section 26 of Act 1 of 1973 did not bar maintainability of the suit. They further averred that since conduct of the 1st respondent resulted in deprivation of their property, it shall be treated as alienation and therefore, the suit for partition could be laid. 11. Resisting the claim of the appellants, a written statement was filed by the 5th respondent adopted by the respondents 3,6 and 7. 12. In the written statement while denying the averments in the plaint it was stated that in view of Section 26 of A.P. Act 1 o 1973, the suit as filed could not be maintained, since the Civil Court has no jurisdiction to reopen and reassess the matter, which has already been decided before the competent Tribunal under the above Act. A reference was also made as to the steps taken in terms of the above Act, since the 1st respondent was found to have excess holding than the standard holding under the said Act in C.C.No.1919 of 1975 of the Land Reforms Tribunal, Narasaraopet. A reference was also made as to the steps taken in terms of the above Act, since the 1st respondent was found to have excess holding than the standard holding under the said Act in C.C.No.1919 of 1975 of the Land Reforms Tribunal, Narasaraopet. It was further averred in the written statement that after observing all the formalities under A.P. Act 1/1973, the Additional Revenue Divisional officer, Land Reforms, Guntur in his proceedings dated 01.06.1988 accepted the surrender of the lands at Kavuru and Jaladi and ordered to take possession. Possession of the lands at Jaladi was taken over by the Revenue Inspector, MRO Office, Edlapadu on 29.07.1988 and whereas lands at Kavuru could not be taken possession of, since there was standing crop. Stating that the respondents 3 and 5 to 7 could not be necessary parties and the suit so filed for partition being misconceived, they requested to dismiss the suit with costs. 13. Basing on the above pleadings, the trial Court settled the following issues for trial: “1. Whether the Civil Court has no jurisdiction to entertain the suit? 2. Whether the adoption in question is in accordance it the provisions of the constituted A.P. Act 1 of 1973? 3. Whether the plaintiffs are not entitled to partition? 4. To what relief?” 14. The trial Court felt that issue no.2 was unnecessary and it was not properly framed. It considered the evidence on record particularly with reference to issue No.1 as to jurisdiction of Civil Court to entertain the suit and held that in view of Section 26 of A.P.Act 1 of 1973, the suit as such could not be maintained against the respondents 2 to 7. Thus, answering issue no.1, on issue no.3, the learned trial Judge observed that there shall be partition of the plaint schedule properties except items 2,3,5 and 15 to 18, which were surrendered as excess holding of the 1st respondent under Land Ceiling Act, (A.P. Act 1 of 1973) to the concerned authorities. Thus, division of available properties was directed into four equal shares, the appellants and the 1st respondent being entitled for one share each. Accordingly, a preliminary decree was passed. 15. Thus, division of available properties was directed into four equal shares, the appellants and the 1st respondent being entitled for one share each. Accordingly, a preliminary decree was passed. 15. Sri P. Ananda Seshu, learned counsel for the appellants, contended that the suit as filed could be maintained having regard to the peculiar facts and circumstances and Section 26 of A.P. Act 1 of 1973 is not a bar to its maintainability. Asserting that so called excess lands attributed 1st to the respondent were never surrendered, the learned counsel contended that in view of the amendment brought out by Central Act 15/1997 (Urban Land (Ceiling and regulation) Repeal Act, 1999, since the possession of these lands is established to remain with the appellants and the 1st respondent, whatever steps taken by the revenue authorities under A.P,. Act 1 of 1973 cannot stand. Reliance is placed in this respect on issuance of pattadar passbook in favour of the 1st appellant in respect of certain lands, some among them were said to have been surrendered, according to the contention of the appellants, as an enabling factor to claim back these lands. Thus mainly contending, the learned counsel for the appellants requested interference with the decree and judgment under appeal. 16. The learned Government Pleader for Appeals and Arbitration strenuously contended that there is a clear bar in terms of Section 26 of Act 1 of 1973 and the manner in which the 1st respondent conducted himself opposing the proceedings before all the authorities, right from the primary tribunal up to this Court and subsequent efforts by him including filing a writ petition, clearly make out that the effort of the appellants is only to stall the proceedings which were legitimately carried out in terms of A.P. Act 1 of 1983. Asserting that in terms of Section 10(3) of A.P. Act 1 of 1973 once an order is passed by the competent authority viz., Land Reforms Tribunal determining the excess holding and directing taking over the excess lands, it shall be deemed that such excess holding has been surrendered by the 1st respondent. Thus, supporting the decree and judgment of the trial Court, the learned Government Pleader requested not to interfere with the findings so recorded by the learned trial Judge. 17. Thus, supporting the decree and judgment of the trial Court, the learned Government Pleader requested not to interfere with the findings so recorded by the learned trial Judge. 17. In as much as there is no dispute in respect of entitlement of shares of the family properties among the appellants as well as the 1st respondent, the question relating to division of properties by means of partition as directed by the trial Court need not be considered in this appeal. Appropriate findings have been recorded by the learned trial Judge with reference to issue No.3. Therefore, it need not be considered here. Particularly, since the respondents 1 and 2 not only remained ex parte in the trial Court but also did not choose to contest this appeal, it is another factor to have considerable bearing in this respect. This question has not been canvassed for the appellants by their learned counsel, in this appeal. 18. The only question that required consideration in this appeal is whether the claim of the appellants vis-à-vis the proceedings under Act 1 of 1973 with reference to excess holding declared by the 1st respondent out of the plaint schedule lands viz., items 2,3,5 and 15 to 18 be considered for partition and if a suit of this nature is barred in terms of Section 26 of A.P. Act 1 of 1973. Therefore, this question, which squarely considers the material on record as well as the evidence including findings recorded by the learned trial judge on issue No.1, is relevant. 19. Thus, the following point arises for determination in this appeal: Whether the civil Court has jurisdiction to entertain the suit and if the claim for partition of the appellants against the 1st respondent with reference to the plaint schedule properties is proper, more particularly relating to item nos. 2,3,5 and 15 to 18 of the plaint schedule? POINT: 20. The appellants relied on the testimony of P.W.1 viz., their GPA in support of their contention that the 1st respondent did not act diligently in relation to the proceedings under A.P. Act 1 of 1973 and to their detriment in filing a declaration under A.P. Act 1 of 1973. 2,3,5 and 15 to 18 of the plaint schedule? POINT: 20. The appellants relied on the testimony of P.W.1 viz., their GPA in support of their contention that the 1st respondent did not act diligently in relation to the proceedings under A.P. Act 1 of 1973 and to their detriment in filing a declaration under A.P. Act 1 of 1973. At the trial,P.W.1 also deposed that the 1st respondent was given to vices and thus, it was one of the reasons sought to be pointed out affecting the proceedings under the above Act with reference to the plaint schedule properties. However, the evidence so let in from P.W.1 is not based on pleadings. Therefore, on this premise alone, such version of P.W.1 has to be rejected. 21. There is clear reference of the extent of holding held by the joint Hindu family constituted by the 1st respondent as manager, in the deposition of then MRO, Edlapadu, examined as D.W.1 in the suit. An extent of Ac.16-47 cents at Kavuru and Ac.19-50 cents at Jaladi villages were the properties of the joint family. It is not disputed. There are reflected in Ex.B4 declaration filed by the 1st respondent before the Land Reforms Tribunal. 22. The third appellant was born in the years 1975 or 1976 according to P.W.1. However, he was born after the 1st respondent filed his land ceiling declaration under Ex.B4 dated 07.04.1975. 23. The fact undisputed in this case is that the declaration under Ex.B4 filed by the 1st respondent was considered in C.C.No.1919 of 1975 of Narasararaopet by the Land Ceiling Tribunal, Narasaraopet and an order was passed on 30.03.1976 vide Ex.B3 holding that the 1st respondent held Ac.35-97 equivalent to 1.4863 standard holding. Thus, it was held that the family unit of the 1st respondent had an excess extent of 0.4868 standard holding. The excess holding held by the family unit of the 1st respondent is described in para 6 of the written statement with necessary details. It is not in dispute as such. It consisted of Ac.5-71 cents at Kavuru village and whereas it is Ac.5-69 cents at Jaladi. 24. On the declaration filed by the 1st respondent in this respect pursuant to the orders passed in Ex.B3, a notice was also issued in Form No.9 as per Ex.B1, directing the first respondent to deliver Ac.5-69 cents at Jaladi to the Revenue Inspector, Edlapadu. 24. On the declaration filed by the 1st respondent in this respect pursuant to the orders passed in Ex.B3, a notice was also issued in Form No.9 as per Ex.B1, directing the first respondent to deliver Ac.5-69 cents at Jaladi to the Revenue Inspector, Edlapadu. It is also proved that possession of the lands at Jaladi was taken over on 29.07.1988. Ex.B2 certificate of taking over possession confirms this fact. 25. According to the appellants, possession of excess holding at Kavuru village was not taken. It is the version of the contesting respondents that on account of standing crop in the lands at Kavuru, the possession was not taken. However, according to them, possession of this land at Kavuru was taken on 19.01.1983. The contention of the appellants is that there was an order of status quo passed by the trial Court on 14.10.1998 and therefore possession of the lands vested with them by then, was never disturbed. When once an order is passed in terms of Section 10(3) of A.P. Act 1 of 1973, as rightly contended by the learned Government Pleader, it is immaterial whether physical possession of the land was taken over or not. When an order approving the surrender of the land is passed by the Land Reforms Tribunal under section 10(3) of A.P. Act 1 of 1973, it shall be deemed to have been surrendered. 26. The first respondent dissatisfied with the order passed in Ex.B3 filed LRA 150 of 1976 on the file of the Land Reforms Appellate Tribunal, Guntur. It was dismissed on 15.10.1976. This fact is admitted by P.W.1 and D.W.1. Against it, the 1st respondent preferred CRP No.2522 of 1976 on the file of the erstwhile High Court of A.P. at Hyderabad as seen from Ex.B11 and it was dismissed on 31.03.1977. The 1st respondent sought interim stay in CMP No.13419 of 1976 in CRP No. 2522 of 1976 and as seen from Ex.B12 order dated 29.12.1976 an interim stay therein was granted. 27. Thereafter, not satisfied with the orders passed by then High court of A.P. at Hyderabad by Ex.B11 order, the 1st respondent filed W.P.No.3766 of 1977 as per Ex.B9 and it was dismissed on 14.10.1977. An interim stay was granted in the above W.P. in W.P.M.P.No.5390 of 1977 on 27.09.1977 as per Ex.B10. 27. Thereafter, not satisfied with the orders passed by then High court of A.P. at Hyderabad by Ex.B11 order, the 1st respondent filed W.P.No.3766 of 1977 as per Ex.B9 and it was dismissed on 14.10.1977. An interim stay was granted in the above W.P. in W.P.M.P.No.5390 of 1977 on 27.09.1977 as per Ex.B10. The effort of the appellants to rely on the above documents is to establish the fact that possession of the excess holding was never delivered to the concerned authorities by the 1st respondent and that they remained with their family. 28. The 1st respondent also filed I.A.No.2 of 1984 in C.C.No.1919 of 1975 before Additional Revenue Divisional Officer (Land Reforms), Guntur requesting to change the classification of the lands from single crop wetlands to dry lands. As seen from Ex.B7, the above petition was dismissed on 03.02.1984. The 1st respondent filed LRA No. 2 of 1984 on the file of Land Reforms Appellate Tribunal, Guntur and it was dismissed on 06.09.1984. Against it, the first appellant also preferred CRP No.3379 of 1984 on the file of the erstwhile High Court of A.P. at Hyderabad and as seen from Ex.B8 order, it was dismissed on 17.03.1987. 29. The proceedings so ensued and culminated, have not been disputed by P.W.1 and they are proved by the testimony of D.W.1. A careful consideration of the manner by which the 1st respondent pursued the remedies in various fora referred to above clearly indicated that he defended his cause diligently and without giving up any effort. It should also be noted that the appellants 1 and 2 were minors by the date, he filed the declaration on behalf of the family under Ex.B4. Therefore, now neither the appellants 1 and 2 nor the appellant No.3 claim and contend that their father did not pursue the matter in right perspective nor they can contend that they were not parties to all the above proceedings and therefore they did not bind them. 30. At this stage, it is imperative that effect of Section 26 of A.P. Act of 1 of 1973 shall be considered. Section 26 of this Act reads as under:- 26. 30. At this stage, it is imperative that effect of Section 26 of A.P. Act of 1 of 1973 shall be considered. Section 26 of this Act reads as under:- 26. Bar of jurisdiction:- Save as otherwise provided in this Act, no order passed or proceeding taken by an officer or authority under this Act shall be called in question in any suit or application and no injunction shall be granted by any Court in respect of any action taken or to be taken by such officer or authority in pursuance of any power conferred by or under this Act. 31. It is explicit that Section 26 clearly bars any suit or application to question an order or proceedings under A.P. Act 1 of 1973. 32. It is manifest, as rightly observed by the learned trial Judge in para 16, that under the guise of the suit for partition, the appellants attempted to question the proceedings and orders passed by the Land Reforms Tribunal and those connected thereto up to then erstwhile High Court of A.P. When there is clear bar to raise a question of this nature under Section 26 of this Act, this camouflaged attempt of the appellants could not have been entertained and rightly the trial Court rejected such version. The trial Court only relied on Section 26 of the Act, but also considered the rulings of Hon’ble Supreme Court in Rajaram Kumar Barghava v. Union of India AIR 1989 SC 752 and Anwar v. I Addl. Dist. Judge AIR 1986 SC 75 in this respect. 33. Therefore, in the light of these circumstances, the attempt of the appellants to reopen the issue which otherwise became final in the land reforms tribunal, cannot stand. 34. However, in this appeal, Sri P. Anand Seshu tried to rely on the amendments brought to Urban Land (Ceiling and Regulation) Act, 1976 by Central Act 15 of 1977 repealing it. G.O.M.S.No.747, Revenue (UC.I) Department, dated 18.06.2008 issued by then Government of A.P. (of erstwhile composite State) is also relied on, contending that when once possession of the alleged excess lands remained with the declarant and his family, in view of this amended provision, these lands revert to the family of the declarant. G.O.M.S.No.747, Revenue (UC.I) Department, dated 18.06.2008 issued by then Government of A.P. (of erstwhile composite State) is also relied on, contending that when once possession of the alleged excess lands remained with the declarant and his family, in view of this amended provision, these lands revert to the family of the declarant. Therefore, the contention of the appellants now is that in view of the subsequent events and changed legal position, they are entitled for the benefit whereby the excess holding so declared remained with their family. 35. There is a clear fallacy in this contention. Declaration filed by the 1st respondent under Ex.B4 was under A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 viz., A.P. Act 1 of 1973 on which the initial order passed by the LRT was on 30.07.1976 as per Ex.B3. Therefore, it is not a case where Urban Land (Ceiling and Regulation) Act, 1976, Central Act 33 of 1976 was made applicable. Thus, the contention advanced on behalf of the appellants is completely unrelated to the matter in issue. On this ground alone such contention has to be rejected. 36. Attempt is also made to show that pattadar passbooks were issued in respect of these lands to the appellants confirming their possession and enjoyment of these alleged excess lands. No material has been brought on record in this direction on behalf of the appellants nor any additional evidence is sought to be adduced by them in this appeal. Even otherwise, having regard to the effect of Section 10(3) of A.P. Act 1 of 1973 and the clear evidence of D.W.1 as well as of P.W.1 as to excess holding and surrender of such excess lands to the revenue authorities by the 1st respondent during his lifetime, these contentions cannot stand. As rightly contended by the learned Government Pleader, the pattadar passbooks so issued to the appellants, should have been manipulated and it is desirable that the District Collector, Guntur to enquire into this manner. Therefore, offshoot of this discussion leads to hold that the suit in the garb of relief of partition directly and substantially questioning the proceedings under A.P.Act 1 of 1973 is clearly barred under Section 26 thereunder and thus, the suit could not have been maintained. 37. Therefore, offshoot of this discussion leads to hold that the suit in the garb of relief of partition directly and substantially questioning the proceedings under A.P.Act 1 of 1973 is clearly barred under Section 26 thereunder and thus, the suit could not have been maintained. 37. The lands affected by the proceedings under A.P. Act 1 of 1973 viz., items 2,3,5 and 15 to 18 cannot be subject matter of partition among the appellants and the respondent no.1. Further, these lands were not available for partition by the date of filing the suit itself. Thus, no relief for partition and division of these items could have been sought by the appellants and rightly, it was rejected by the learned trial Judge. 38. Thus, the appellants were granted the relief by the trial Court rightly only with reference to unaffected items under A.P. Act 1 of 1973 and which were available for the family to effect a division among the eligible members. 39. It is also contended for the appellants that the judgment and decree of the trial Court did not clearly state that the relief in respect of items 2,3,5 and 15 to 18 has been rejected and no finding was recorded dismissing the suit to that extent. However, it is not a circumstance to offer any concession to the appellants in as much as there are clear findings in the judgment under appeal in this respect denying the relief to the appellants in so far as the above lands are concerned. 40. Thus, this point is answered. 41. In view of the findings recorded above, when the learned trial Judge took into consideration the material on record in right perspective and had drawn appropriate conclusions therein, they cannot be interfered with. Consequently this appeal has to be dismissed with costs of the respondents 3 and 5 to 7. 42. In the result, this appeal is dismissed with costs of the respondents 3 and 5 to 7 and the appellants shall bear their own costs throughout. As a sequel thereto, all pending miscellaneous petitions, if any, shall stand closed.