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2025 DIGILAW 4 (AP)

State Of Andhra Pradesh v. S Murali Mohan

2025-01-02

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : This second appeal is filed aggrieved against the Judgment and decree dated 04-6-2012 in A.S.No.87 of 2011 on the file of the IV Additional District Judge, Kurnool District, confirming the Judgment and decree dated 22-7-2011 in O.S.No.88 of 2007 on the file of the Additional Senior Civil Judge, Kurnool. 2. The appellants herein are defendants 1 and 2 and the respondents are plaintiffs 1 to 5 in O.S.No.88 of 2007 on the file of Additional Senior Civil Judge’s Court, Kurnool. 3. The plaintiffs initiated action in O.S.No.88 of 2007 on the file of Additional Senior Civil Judge’s Court, Kurnool, with a prayer for permanent injunction restraining the defendants, their men and agents from entering into or in any way interfering with the possession and enjoyment of the plaintiffs in the plaint schedule properties and for costs of the suit. 4. The learned Additional Senior Civil Judge, Kurnool, decreed the suit with costs in favour of the plaintiffs granting permanent injunction restraining the defendants, their men and agents from entering into or in any way interfering with the possession and enjoyment of the plaintiffs in the plaint schedule properties. Felt aggrieved of the same, the unsuccessful defendants in the above said suit filed the aforesaid appeal before the first appellate Court. The learned IV Additional District Judge, Kurnool, dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful defendants/appellants approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the second appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiffs, in brief, as set out in the plaint averments in O.S.No.88 of 2007, is as follows: (a) It is pleaded that the 1st plaintiff is the owner of plaint A-schedule properties purchased under a registered sale deed dated 18-9-2003 for valuable consideration of item No.1 from one V. Naga Bhusanam. The said Naga Bhusanam earlier purchased it under a registered sale deed dated 01-7-1996 from Degappa and two others, who are the sons of one Golla Seshanna. The said Golla Seshanna, in turn, purchased earlier from the earlier owner Gowli Rudrappa under a registered sale deed dated 11-9-1950. The said Gowli Rudrappa purchased earlier under a registered sale deed dated 26-9-1947. The said Golla Seshanna, in turn, purchased earlier from the earlier owner Gowli Rudrappa under a registered sale deed dated 11-9-1950. The said Gowli Rudrappa purchased earlier under a registered sale deed dated 26-9-1947. Ever since, the 1st plaintiff and his predecessors had been in possession and enjoyment of it absolutely and independently in their own right. (b) It is further pleaded that the 2nd plaintiff purchased plaint B-schedule property under a registered sale deed dated 16-8-2001 from Annamma, wife of Buchanna. The said Annamma earlier purchased it under a registered sale deed dated 27-01-1986 from one Chennamma, wife of Naganna. The said Chennamma earlier purchased it under a registered sale deed dated 17-8-1973 from Chinna Kesanna and Naganna. (c) It is further pleaded that the 3rd plaintiff is the owner of plaint-C schedule properties, purchased item No.1 of plaint C-schedule property under a registered sale deed dated 16-10-1996 from one Danamaiah. The said Danamaiah and his brother earlier purchased it under a registered sale deed dated 27-01-1986 from one Chennamma. The said Chennamma, in turn, purchased the said property under a registered sale deed dated 27-8-1973 from Chinna Kesanna and Naganna. The said documents show that earlier the said Chinna Kesanna and Naganna mortgaged the said property to Chennamma under a registered mortgage deed dated 23-9-1969 and to discharge the said mortgage, executed the registered sale deed dated 27-8-1973. It is further pleaded that the 3rd plaintiff also purchased item No.2 of plaint C-schedule properties under a registered sale deed dated 09-3-1998 from Mohammed Khasim’s sons, Sheik Mohammed Alla Baksh and Sheik Mohammed Hussain. The said Mohammed Khasim earlier purchased it under a registered sale deed dated 09-7-1984 from Thimmakka, wife of Telugu Yellappa. The said Thimmakka earlier purchased it under a registered sale deed dated 26-11-1979 from Madanna, which was ancestral property of the said Madanna. Thus, item No.2 of plaint C-schedule properties had been in possession and enjoyment of the 3rd plaintiff and his predecessors in title from times immemorial. It is further pleaded that the 3rd plaintiff also purchased item No.3 of plaint C-schedule properties under a registered sale deed dated 22-7-2004 from one Pedda Chennamma. The said Pedda Chennamma purchased it under a registered sale deed dated 27-01-1986 from one Chennamma, wife of Pedda Naganna. It is further pleaded that the 3rd plaintiff also purchased item No.3 of plaint C-schedule properties under a registered sale deed dated 22-7-2004 from one Pedda Chennamma. The said Pedda Chennamma purchased it under a registered sale deed dated 27-01-1986 from one Chennamma, wife of Pedda Naganna. So, from times immemorial, the 3rd plaintiff and his predecessors in title had been in possession and enjoyment of it absolutely and independently. (d) It is further pleaded that the 4th plaintiff is the owner of plaint D-schedule property, purchased it under a registered sale deed dated 14-02-2000 from Dasari Krishna Murthy. The said Dasari Krishna Murthy got the said property from his father by succession. It was their ancestral property. The 2nd defendant and the Revenue Divisional Officer of Kurnool issued patta pass book and title deed in favour of the 4th plaintiff’s vendor and the present sale is shown in the title deed of Dasari Krishna Murthy. (e) It is further pleaded that the 5th plaintiff is the owner of plaint E-schedule property, purchased it under a registered sale deed dated 01-7-1996 from S. Naga Bhusanam @ Naga Bhusanam. Earlier, it was the ancestral property of the 5th plaintiff’s vendor. It had been in possession and enjoyment of the 5th plaintiff and his predecessors in title from times immemorial. It is a private property. (f) It is further pleaded that the 2nd defendant is claiming that the plaint schedule lands are assigned lands and threatening to take possession of the plaint schedule properties on that pretext. The defendants are now threatening to distribute the said lands to the houseless and homeless people on the ground that they are Government lands. Hence, the suit. 7. The 2nd defendant filed a written statement, which was adopted by the 1st defendant by filing a memo, denying the contents of plaint averments and he further contended as follows: (a) It is contended that the land in Survey No.68/2 situated at Joharapuram village of Kurnool Mandal to an extent of Ac.54-30 cents and as per the entries made in Survey Register maintained by the Revenue Department, the land is shown as Government Assessed waste land. At the time of assignment, Survey No.68/2 was subdivided and assigned to depressed class with conditions. At the time of assignment, Survey No.68/2 was subdivided and assigned to depressed class with conditions. Accordingly, Survey No.68/2A1F to an extent of Ac.1-71 cents assigned to Malapothula Dubba Nagadu and Survey No.68/2A1B to an extent of Ac.1-66 cents assigned to Mala Thimmanna, son of Mala Nagappa. It is further contended that all the assignments, which were granted to various landless poor persons only on conditions that the land so assigned is heritable and assignee has no right to alienate and the assignee should bring land under cultivation as per the Andhra Pradesh Assigned Lands (Prohibition of Transfer) Act, 1977. The 1st plaintiff himself stated that the suit schedule land was purchased through a registered sale deed. When it has come to the notice of 2nd defendant herein that the original assignee and their legal heirs have alienated the land to others and the assignee has not brought the land under cultivation, a notice in Form-I under the provisions of the A.P. Assigned Lands (PoT) Act was issued on 17-02-2006 and personally served on the original legal heirs of assignees. Neither the original assignees nor their legal heirs have submitted any explanation to the notice dated 17-02-2006 and therefore, orders were passed by the Mandal Revenue Officer, Kurnool, dated 15-3-2006, cancelling the assignment made in favour of Malapathula Dubba Nagadu and Mala Naganna and resumed the land to the Government. In the said proceedings, appeal time was given to the legal heirs of original assignee, but they did not prefer an appeal before the Revenue Divisional Officer. The assigned land purchased by the 1st plaintiff is null and void and no right confer in favour of the 1st plaintiff under sub-section (1) of Section 3 of the A.P. Assigned Lands (PoT) Act, where before or after the commencement of this Act, this land has been assigned by the Government to a landless poor person for the purpose of cultivation or as a house site, though not withstanding any this to the contrary in any other law for the time being in force or in the deed of transfer of other document. (b) It is further contended that 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. (b) It is further contended that 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. Any transfer or acquisition made in contravention of the provision of sub sections (1) or (2) shall be deemed to be null and void. After resuming the land, a report was submitted to the District Collector, Kurnool, on 31-3-2006. The District Manager, Housing, in the letter dated 03-8-2006 requested the Collector for allotment of land for urban weaker sections under Integrated Housing and Slums Development Programme (IHDSP). Any transfer or acquisition made in contravention of the provision of sub sections (1) or (2) shall be deemed to be null and void. (c) It is further contended that the 4th plaintiff purchased the land through a registered sale deed. Since the assignee violated the provisions of A.P. Assigned Lands (PoT) Act, the Government is at liberty to resume the lands. The suit schedule land is never cultivated land, it remained a waste land till today. Accordingly, the land is resumed to the Government on 15-3-2006 after due process. The plaint E-schedule property to an extent of Ac.2-06 cents in Survey No.68/2A/1L was assigned to P. Chennanna, subsequently the 5th plaintiff purchased the plaint E-schedule property. When the land is an assigned land, the purchase made by the 1st plaintiff is null and void and it is in contravention of sub sections (1), (2) and (3) of Section 3 of the A.P. Assigned Lands (PoT) Act, 1977 as amended by Act 8 of 2007, no rights or interest would confer in favour of the 5th plaintiff. Therefore, plaint A to E-schedule properties, except the land in Survey No.68/1, are not private properties. Hence, permanent injunction should not be granted. They prayed to dismiss the suit with exemplary costs. 8. On the basis of above pleadings, the learned Additional Senior Civil Judge, Kurnool, framed the following issues for trial: (1) Whether the plaintiffs are entitled for permanent injunction against the defendants as prayed for ? and (2) To what relief ? 9. During the course of trial in the trial Court, on behalf of the plaintiffs, P.Ws.1 to 4 were examined and Exs.A-1 to A-26 were marked. On behalf of the defendants, D.W.1 was examined and Ex.B-1 to B-17 were marked. 10. and (2) To what relief ? 9. During the course of trial in the trial Court, on behalf of the plaintiffs, P.Ws.1 to 4 were examined and Exs.A-1 to A-26 were marked. On behalf of the defendants, D.W.1 was examined and Ex.B-1 to B-17 were marked. 10. The learned Additional Senior Civil Judge, Kurnool, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit with costs. Felt aggrieved thereby, the unsuccessful defendants filed the appeal suit in A.S.No.87 of 2011 before IV Additional District Court, Kurnool, wherein the following points came up for consideration. (1) Whether the suit for injunction simplicitor is maintainable without the relief of declaration of title in respect of the plaint schedule property by the plaintiffs ? (2) Whether the suit schedule property was resumed to the Government as under the proceedings No.RC.B.646/2005, dated 31-3-2005? (3) Whether the plaintiffs have been in possession and enjoyment of the plaint schedule property by the date of filing of the suit ? and (4) To what relief ? 11. The learned IV Additional District Judge, Kurnool, i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendants/appellants and in favour of the plaintiffs/respondents and dismissed the appeal filed by the defendants. Felt aggrieved of the same, the unsuccessful defendants in O.S.No.88 of 2007 filed the present second appeal before this Court. 12. On 05-9-2013, the composite High Court of Andhra Pradesh at Hyderabad framed the following substantial questions of law: (1) Whether the provisions of sub-sections 1, 2 and 3 of Section (3) of the A.P. Assigned Lands (POT) Act, 1977 have not been contravened in the instant case by the respondents/plaintiffs ? (2) Whether the respondents/plaintiffs established their legal possession and title over the suit schedule property ? and (3) Whether the Courts below considered the effect of the oldest documents i.e., Exs.B-1 to B-3 RSR and Sub-Division Record ? 13. Heard Ms. Anoosha, learned Assistant Government Pleader on behalf of the learned Government for appeals for the appellants/defendants and Sri P. Veera Reddy, learned Senior Counsel on behalf of the respondents/plaintiffs. 14. and (3) Whether the Courts below considered the effect of the oldest documents i.e., Exs.B-1 to B-3 RSR and Sub-Division Record ? 13. Heard Ms. Anoosha, learned Assistant Government Pleader on behalf of the learned Government for appeals for the appellants/defendants and Sri P. Veera Reddy, learned Senior Counsel on behalf of the respondents/plaintiffs. 14. The learned Assistant Government Pleader on behalf of the appellants would contend that both the Courts below did not properly appreciate the evidence on record and came to wrong conclusion resulting in decreeing the suit of respondents/plaintiffs, which was confirmed in the appeal suit resulting in filing of second appeal and she would contend that both the Courts below came to wrong conclusion and the second appeal may be allowed by setting aside the judgment and decree passed by the learned first appellate Judge. 15. Sri P. Veera Reddy, learned Senior Counsel on behalf of the respondents/plaintiffs, would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly decreed the suit in favour of the plaintiffs and on reappreciation of the evidence on record, the learned first appellate Judge dismissed the first appeal filed by the appellants, confirming the findings arrived by the learned trial Judge. He would further contend that the second appeal may be dismissed by confirming the judgments and decrees passed by both the Courts below. 16. In a second appeal filed under Section 100 of C.P.C., this Court is normally not expected to re-appreciate the evidence on record. It shall not reverse the judgment of the first appellate Court except under a few situations. If it is found that the material or relevant evidence was not considered by the first appellate Court and if considered, it would have led to an opposite conclusion, is one instance where this Court is entitled to interfere. The other situation is when the findings of the facts were arrived at by the first appellate Court by placing reliance on inadmissible evidence, which if it was omitted, an opposite conclusion was possible. It is on such occasions also this Court can interfere. It is also relevant to say that if the judgments of both the Courts below are contrary to the mandatory provisions of law applicable to the case, then also interference under Section 100 of C.P.C is permissible. 17. This Court has gone through the entire material on record. It is on such occasions also this Court can interfere. It is also relevant to say that if the judgments of both the Courts below are contrary to the mandatory provisions of law applicable to the case, then also interference under Section 100 of C.P.C is permissible. 17. This Court has gone through the entire material on record. It has considered the submissions made on both sides. The oral and documentary evidence on record goes to show that the plaintiffs 1 to 5 purchased plaint A to E-schedule properties, respectively, under registered sale deeds, much prior to institution of the suit. It is relevant to say that the present suit is instituted before the trial Court in the year 2007. Both the Courts below gave concurrent finding that the plaintiffs 1 to 5 are in possession and enjoyment of plaint A to E-schedule properties, respectively, under registered sale deeds. The plaintiffs purchased respective items of plaint schedule properties under registered sale deeds, which is well supported by the documentary evidence produced by the plaintiffs, much prior to institution of the suit and the plaintiffs are in possession and enjoyment over the plaint A to E-schedule properties. 18. The evidence of P.W.4 coupled with documentary evidence goes to show that the 1st plaintiff is in possession and enjoyment of plaint A-schedule properties from the date of registered sale deeds. The evidence of P.W.2 coupled with documentary evidence goes to show that he is the 3rd plaintiff and he purchased plaint C-schedule properties in his name and he also purchased plaint B-schedule property in the name of his son, the 2nd plaintiff herein. The documentary evidence under Exs.A-4 to A-6 and also Ex.A-7 patta supported the case of the plaintiffs. The 3rd plaintiff also relied on link documents Exs.A-10, A-11, A-13, A-14 and A-18. The oral and documentary evidence produced by the plaintiffs also goes to show that the 4th plaintiff purchased plaint D-schedule property under a registered sale deed and the 5th plaintiff also purchased plaint E-schedule property under a registered sale deed under Ex.A-21. 19. The defence put forth by the appellants/defendants in the written statement is that all the plaint A to E-schedule properties except item No.1 of plaint C-schedule properties is a Government land and assigned to some others at some point of time. 19. The defence put forth by the appellants/defendants in the written statement is that all the plaint A to E-schedule properties except item No.1 of plaint C-schedule properties is a Government land and assigned to some others at some point of time. The appellants relied on Ex.B-1 printed RSR filed by the appellants, except Survey numbers nothing was mentioned in Ex.B-1. Ex.B-1 does not disclose that the properties in those Survey numbers are assigned to whom ? Therefore, Ex.B-1 is no way helpful to the appellants to prove their defence. Ex.B-2 is a sub division record. It shows that Survey numbers are subdivided from original Survey No.68/2. The appellants also relied on Ex.B-3. There are corrections and over-writings in Ex.B-3, the same are visible to a naked eye. The 2nd defendant/D.W.1 admits in his evidence that the names of pattadars mentioned therein do not tally with the names said to have been assigned by the Government in respective Survey numbers. None of the aforesaid pattadars were examined by the defendants to prove their defence. Furthermore, there was a clear admission by D.W.1, who is the Tahsildar of Kurnool Mandal in his evidence that Ex.B-3 is prepared on seeing the assignment register and the assignment register is not available in the office. Admittedly, in the case on hand, on application filed by the appellants, an Advocate Commissioner was appointed to visit the suit schedule properties and he visited the suit schedule properties and executed the Warrant and filed a report of Advocate Commissioner before the trial Court. In the report of Advocate Commissioner, it was mentioned that constructions are going on in plaint B-schedule property at the time of his visit and all the remaining plaint schedule lands are vacant. The contention of appellants in the written statement is that the lands were given to the Andhra Pradesh State Housing Board Corporation for construction of houses and for allotment to poor persons and the construction work was going on. Therefore, the evidence of D.W.1 is not corroborated with the report of Advocate Commissioner. 20. It is the case of appellants that the plaint schedule properties are Government lands and they are assigned lands. Therefore, the evidence of D.W.1 is not corroborated with the report of Advocate Commissioner. 20. It is the case of appellants that the plaint schedule properties are Government lands and they are assigned lands. As per the A.P. Assigned Lands (PoA) Act, Rule 3 notice prescribes certain procedure for eviction and for taking possession of the alleged assigned lands, the said Rule 3 notice is mandatory for resuming the lands from third parties. The authorized officer has to issue a notice in Form-I to the person, who is in the possession of assigned land in contravention of the provisions of Section 3(2) of the A.P. Assigned Lands (PoA) Act. Admittedly, in the case on hand, no such notice was served on the plaintiffs or their family members. It is also not the specific case of the appellants that Rule 3 notice was served on the plaintiffs or their family members. Furthermore, D.W.1 Tahsildar of Kurnool Mandal admits that Rule 3 notice was not served on the plaintiffs or their family members. On appreciation of the entire evidence on record, both the Courts below came to the conclusion that the plaintiffs and their predecessors-in-title are in possession and enjoyment of the plaint A to E-schedule properties. The material on record reveals that the plaintiffs are in possession and enjoyment over the plaint A to E-schedule properties. As stated supra, in the case on hand, Rule 3 mandatory notice was not issued either to the plaintiffs or their family members. Furthermore, the best evidence is the assignment order passed by the Revenue Department, but no such assignment order is filed by the appellants for the reasons best known to them. As per the evidence of D.W.1, he has no personal knowledge about the assignment order and assignment register is not available in their office. D.W.1 Tahsildar also admits that Section 2(1) of the A.P. Assigned Lands (PoA) Act specifically says that the said Act will apply only if the assigned lands are subject to the condition of non-alienations. Therefore, the burden is on the appellants to prove that the plaint A to E-schedule properties are assigned lands and the said assigned lands were with a condition of non-alienation. In the instant case on hand, the appellants failed to prove the same. 21. Therefore, the burden is on the appellants to prove that the plaint A to E-schedule properties are assigned lands and the said assigned lands were with a condition of non-alienation. In the instant case on hand, the appellants failed to prove the same. 21. The evidence of P.Ws.1 to 4 and Exs.A-1 to A-26 clearly proves the possession of the plaintiffs in the plaint A to E-schedule properties as on the date of filing of the suit. The defendants failed to prove that the lands in question are Government lands and they are in possession of the Government and handed over to the A.P. State Housing Board Corporation and house constructions are going thereon to allot the same to poor people. In the case on hand, the plaintiffs are not claiming any relief of declaration of title, they approached the trial Court seeking the relief of permanent injunction only against the defendants and their men restraining them from ever interfering with their possession and enjoyment of the plaint A to E-schedule properties. For the aforesaid reasons, the plaintiffs are entitled to the relief of permanent injunction as granted by the trial Court, which was confirmed by the first appellate Court. In a suit for permanent injunction, the initial burden lies on the plaintiffs and the same was properly discharged by them. But, the appellants failed to prove that the plaint A to E-schedule properties are assignment lands by producing cogent evidence and the appellants also failed to prove that the Government handed over the same to the A.P. State Housing Board Corporation for constructing houses and to allot the same to poor people. All these facts were properly analysed by both the Courts below and no infirmity would be pointed out by this Court in the second appeal. Therefore, this Court finds no reason to disagree with the findings arrived by both the Courts below. Therefore, there are no merits in the second appeal filed by the appellants/defendants. 22. In the result, the second appeal is dismissed, confirming the judgments and decrees of both the Courts below. Pending applications, if any, shall stand closed. Each party do bear their own costs in the second appeal.