Partly allowed

Gundabala Kamaladevi v. The Mandal Revenue Officer

Telangana HC17 Sept 2013AS/97/2012

Case brief

AI extract

What is this about?

Appeal against dismissal of a suit for declaration of title and injunction regarding agricultural land. The High Court held that title cannot exist for surrendered excess land but set aside the Section 80 CPC dismissal. The case was remitted to determine the exact surrendered extent and title to the remaining balance.

What did the court decide?

Suit allowed in part; remitted to trial court to determine precise extent of surrendered land and title to the balance.

Gundabala Kamaladevi Vs The Mandal Revenue Officer — Land Acquisition | Telangana HC (2013)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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TUESDAY, THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND AND THIRTEEN

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PRESENT

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THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR

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APPEAL SUIT No.97 of 2012

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BETWEEN

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Gundabala Kamaladevi.

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…APPELLANT

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AND

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The Mandal Revenue Officer, Gara Mandal, Srikakulam District and another.

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…RESPONDENTS

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Counsel for the Appellant: MR. P. KRISHNA PRAKASH

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Counsel for the Respondent: MS. A.B. LALITHA GAYATHRI AGP – APPEALS

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The Court made the following: -

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JUDGMENT:

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This appeal is preferred by the plaintiff, whose suit for declaration of ownership and consequential permanent injunction was dismissed by the learned Judge, Family Court – cum – Additional District Court, Srikakulam, vide judgment and decree dated 20.12.2011 in O.S.No.16 of 2005.

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2. The suit came to be filed in the following circumstances, which are

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reiterated in the plaintiff’s averments in the plaint as under:

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(a) Under four registered sale deeds, Exs.A1 to A4, all dated 19.06.1999 and another sale deed, Ex.A5 dated 10.03.2000, the plaintiff claims to have purchased the suit schedule property, which is described as total extent of Ac.27.00 cents of dry land in Sy.Nos.677P and 678P of Shrikhurmam village, Gara Mandal, Srikakulam District. The plaintiff claims that she purchased the aforesaid property from the rightful owners, who were in possession and enjoyment of the same and whose names were recorded in the revenue records. She also claims that the pattadar passbooks and title deeds, Exs.A6 to A9, were also issued by the revenue authorities and alleging that the defendants/respondents herein are trying to take possession of the said suit schedule property without any due process, the aforesaid suit was filed.

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(b) The defendants filed a detailed written statement stating that the predecessor in interest of the plaintiff viz. Sri Korada Jagannadham was the rightful owner of the plaint schedule property and that he had filed his declaration under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short ‘the Act’) wherein his holding was determined by order under Section 9 of the Act dated 21.07.1977 and the appeal against the same was dismissed by the appellate tribunal on 06.06.1978.

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The order of determination was, however, remitted by this Court by order in a civil revision petition dated 20.05.1987 whereupon the holding was determined afresh by the primary tribunal and the appeal against the same was dismissed by the appellate tribunal by order dated 30.08.1994, which became final.

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(c) It is further stated that under Section 10(4) of the Act notices were published by the primary tribunal in surrender proceedings and consequently, it was found that the sale transactions in favour of the vendors

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of the plaintiff as well as that of the plaintiff were void and non-est in law and accordingly, the primary tribunal accepted the surrender to an extent of Ac.20.40 cents = 0.5851 S.H. towards excess land vide order dated 07.03.1996. It was stated that consequent upon the extent surrendered, having vested with the State free from all encumbrances, the possession of the said land was taken through the Revenue Divisional Officer on 19.03.1996 and since then the defendants are in possession and enjoyment of the said land.

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It is further stated that the vendors of the plaintiff filed objection petition, before the primary tribunal under Rule 16(5) of the Rules framed under the Act, which was also dismissed on 06.04.1996 and the appeal, being LRA.No.2 of 1996, filed against the same was also dismissed on 30.06.2001. The alleged purchase by the plaintiff, even if true, the same was, apparently, after the vendors had filed objections before the primary tribunal. It was also stated that the land has since been pegmarked for issuing D-form pattas for landless poor persons, the suit is clearly not maintainable.

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3. The trial Court framed the following issues:

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1. Whether the plaintiff is entitled for declaration of title as an owner of the plaint schedule properties basing on the documents filed by the plaintiff?

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2. Whether the plaintiff is entitled for consequential permanent injunction over the schedule mentioned property?

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3. Whether the sale deeds dated 19-06-1999 and 10-03-2000 filed by the plaintiff for the schedule property purchased from one Nagampalli Satyanarayana Murthy are true and valid?

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4. Whether the suit is maintainable or not?

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5. To what relief?

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4. Plaintiff examined herself as P.W.1 and marked Exs.A1 to A9 whereas on behalf of the defendants D.Ws.1 to 3 were examined and Exs.B1 to B4 were marked.

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5. The trial Court, on consideration of the said issues during trial, came to the conclusion that except the documents of title under which the plaintiff

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purchased the suit lands, no other link documents are produced by the plaintiff and even the revenue record i.e. Exs.A5 to A9 viz. pattadar passbook etc. stand in the name of vendors of the plaintiff. It was also found that the plaintiff failed to examine her vendors and as such, the surrender of the land in favour of the defendants remained uncontraverted. Since all the sales in favour of the vendors of the plaintiff as well as that of the plaintiff were found to be in the teeth of the proceedings under the Act, the declaration of title as sought for by the plaintiff was denied on the ground that the plaintiff failed to prove that her vendors had title and possession of the suit schedule property. On issue No.4, with regard to compliance under Section 80 of the Code of Civil Procedure, 1908, the trial Court held that the suit is itself is not maintainable for want of compliance under Section 80 CPC as no notice prior to suit was given. The suit was accordingly dismissed against which the present appeal is preferred.

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6. Heard Mr. P. Krishna Prakash, learned counsel for the appellant and Ms. A.B. Lalitha Gayathri, learned Assistant Government Pleader representing the Government Pleader for Appeals.

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7. Learned counsel for the appellant/plaintiff contended that the finding of the trial Court on issue No.4 is erroneous inasmuch as the suit came to be decided on merits and was not only numbered but no objection was raised by the defendants in the written statement or during the trial. It was also pointed out that the petition to dispense with notice filed by the plaintiff was referred to in para 11 of the impugned judgment but there is no discussion with regard to the orders of the Court. So far as merits of the claim are concerned, learned counsel for the appellant states that based on the encumbrance certificate and due diligence, the plaintiff purchased the said land from its rightful owners and it is only now that the plaintiff has been informed and apprised of various proceedings under the Act and that the said lands are excess surrendered lands. In other words, the learned counsel would raise a plea that the appellant is a bonafide purchaser, who is required

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to be protected.

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8. Learned counsel for the appellant further points out that the suit schedule property is an extent of Ac.27.00 cents, as described in the schedule and even according to the defendants, the proceedings with regard to surrender of excess land, even if true, it relates to only Ac.20.48 cents, as per Exs.B1 to B4, though the written statement of the defendants refers to Ac.20.40 cents of excess land having been taken possession of. The trial Court, however, failed to appreciate that at least to the extent of balance extent of the land covered by the sale deeds, Exs.A1 to A5, the plaintiff was entitled to consideration of her case but the said aspect has escaped the attention of the trial Court.

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9. Learned Assistant Government Pleader, on the other hand, submits that Ex.B4 is a crucial document, which shows that the vendors of the plaintiff had filed objections and tried to obtain stay of dispossession by filing an appeal before the Land Reforms Appellate Tribunal in LRA.No.2 of 1996 but the said stay petition was dismissed on 06.04.1996 and subsequently, the appeal was also dismissed on 30.06.2001. In the interregnum, however, the sale deeds in favour of the appellant/plaintiff were executed. Surrender, which had attained finality and in pursuance thereof, when the possession of the land was taken, as is clearly established by Exs.B2 and B3, the plaintiff cannot be permitted to claim that she has either title or possession of the land, which is vested in the State. So far as the contention with regard to Section 80 CPC is concerned, the learned Assistant Government Pleader fairly states that no such plea was raised by the defendants in the written statement.

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10. In view of these contentions, the points that arise for consideration are as under:

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(1) Whether the appellant/plaintiff can set up a claim for title in spite of Exs.B1 to B4?

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(2) If so, to what extent?

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(3) Whether the appellant/plaintiff was rightly non-suited by the trial Court for non-compliance of Section 80 of the Code of Civil Procedure?

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Point No.1:

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11. On consideration of these rival contentions, it is evident that the sale deeds, under which the appellant/plaintiff claims title to the suit schedule property i.e. Exs.A1 to A5 are documents relevant to

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post-surrender events. When the declaration had become final by determining the excess vacant land, the original declarants and their alinees, who include the subsequent alinee viz. plaintiff/appellant,

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are bound by the said declaration as well as the orders passed thereon by the tribunal in the surrender proceedings. It is, perhaps, for this reason that the plaintiff did not choose to examine her vendors.

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More importantly, the objections were filed by the vendors of the plaintiff and before they could be decided, the sale transactions took place in favour of the appellant. The said order under Ex.B4, therefore, binds the vendors of the plaintiff as well as the plaintiff irrespective of whether the plaintiff was a party to the said proceedings, in view of the fact that the plaintiff is only successor in interest. The evidence of D.Ws.1 and 2 together with documents Exs.B1 to B3, therefore, conclusively establish that the excess vacant land was taken possession of by the defendants and the said land vests in the defendants without any encumbrance and they are free to deal with the said land for which the plaintiff had no right to object thereto.

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To the extent of the said surrendered land, therefore, the claim of the plaintiff based on Exs.A1 to A5 is clearly hit by Section 17 of the Act, which reads as follows:

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“17. Prohibition of alienation of holding:-

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1. No person whose holding, and no member of family unit, the holding of all the members of which in the aggregate, is in excess of the ceiling area as on the 24^th January, 1971 or at any time thereafter, shall on or after the notified date,

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alienate his holding or any part thereof by way of sale, lease, gift, exchange, settlement, surrender, usufructuary mortgage or otherwise, or effect a partition thereof, or create a trust or convert an agricultural land into non-agricultural land, until he or the family unit, as the case may be, has furnished a declaration under Section 8, and the extent of land, if any, to be surrendered in respect of his holding or that of his family unit has been determined by the Tribunal and an order has been passed by the Revenue Divisional Officer under this Act taking possession of the land in excess of the ceiling area and a notification is published under Section 16; and any alienation made or partition effected or trust created in contravention of this section shall be null and void and any conversion so made shall be disregarded.

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2. For the purpose of determining whether any transaction of the nature referred to in sub-section (1) in relation to a land situated in this State, took place on or after the notified date, the date on which the document relating to such transaction was registered shall, notwithstanding anything in Sec.47 of the Registration Act, 1908, be deemed to be the date on which the transaction took place, whether such document was registered within or outside the State.

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3. The provisions of sub-section (1) shall apply to any transaction of the nature referred to therein execution of a decree or order of a Civil Court or of any award or order of any other authority”

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Neither the vendors of the plaintiff nor the plaintiff, therefore, can seek any declaration of title on the basis of alienation in her favour when the proceedings under the Act have reached finality. Further, during pendency of objections of the vendors of the plaintiff, the sale transactions in favour of the plaintiff relating to the lands notified for surrender are void and non-est in law.

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Point No.1 is accordingly answered against the plaintiff.

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Point No.2:

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12. There is, however, a marginal discrepancy with respect to the extent of land, which was held excess and surrendered, as according to the written statement the said extent is described as Ac.20.40 cents whereas the documents Exs.B1 to B4 refer to an extent of Ac.15.07 cents in Sy.No.677P and an extent of Ac.5.41 cents in Sy.No.678P, aggregating to Ac.20.48

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cents. The said aspect has not been minutely examined by the trial Court and no reference thereto is found under the impugned judgment. Secondly, the extent of land claimed under the surrender having been vested in the State even if taken as Ac.20.40 cents, as mentioned above, the suit claim filed by the appellant/plaintiff is for Ac.27.00 cents. Thus, the balance of extent claimed by the plaintiff also remained unconsidered, as the written statement of the defendants make assertion of title only to the extent of surrendered land. The trial Court has missed the aforesaid aspect from its consideration, as even accepting the case of the defendants to the extent of Ac.20.48 cents, as noted above, still the balance extent is left over as per Exs.A1 to A5 of the plaintiff. The said aspect, therefore, also remains obscure.

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Point No.2 is accordingly answered.

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Point No.3:

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13. So far as the plea as to compliance under Section 80 CPC is concerned, no such plea is raised in the written statement by the defendants. Assuming, therefore, that requirement of Section 80 CPC is not fulfilled by the appellant/plaintiff, the defendants by their conduct had waived the said objection. Even otherwise, in para 11 of the impugned judgment, the trial Court has noticed that the plaintiff had filed objection under Section 80 (2) CPC to dispense with notice. However, no discussion with regard to that is found in the judgment nor the records, which were called for from the trial Court, throw any light on that aspect. The dismissal of the suit on the said ground is also vitiated inasmuch as the suit was numbered by the office of the trial Court and was tried on merits and was decided after considering the evidence led by both parties. It was, therefore, not open for the trial Court to dismiss the suit on the ground of non-compliance with Section 80 CPC. Thus, the finding of the trial court on issue No.4 is liable to be set aside and is accordingly set aside.

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Point No.3 is accordingly answered in favour of the plaintiff.

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14. In view of the discussion above and finding on point No.1 against the appellant/plaintiff, the decree of the trial Court dismissing the suit filed by the plaintiff to the extent of the land covered by Exs.B1 to B4 viz. the land surrendered to the State and vested in the State does not require any interference, as the appellant/plaintiff is not entitled to seek any declaration of title in that respect.

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15 For the reasons already found under point No.2 above, there is obscurity with reference to the extent of land surrendered and vested in the State viz. whether Ac.20.40 cents, as stated in the written statement or Ac.20.48 cents as found in the Exs.B1 to B4, is required to be ascertained by the trial Court with precision. Similarly, it has escaped the attention of the trial Court and though it is right in finding that the plaintiff is not entitled to the relief of declaration of title with respect to land surrendered to and vested in the State, the extent thereof at best is Ac.20.48 cents, as per Exs.B1 to B4 whereas the claim of the plaintiff in the suit is with reference to Ac.27.00 cents,

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as per the plaint schedule. Hence, with regard to the balance of the extent of the land claimed by the plaintiff, whether she is entitled to any relief in the suit is required to be examined. In view of that,

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the following two additional issues are framed and the suit shall stand remitted to the trial Court to the extent of adjudication on the said two additional issues, as framed hereunder:

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1. Whether the extent of land, which is subject matter of proceedings under Exs.B1 to B4 is Ac.20.48 cents or Ac.20.40 cents?

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2. Whether the plaintiff has any right, title and interest with respect to the balance of extent of suit schedule land after excluding the land, which is found to have been surrendered to the defendants and vested in the State?

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The appeal suit is accordingly allowed in part to the extent indicated above and the suit O.S.No.16 of 2005 shall stand remitted to the trial Court for determining the aforesaid issues. The trial Court shall give opportunity to both sides to adduce further evidence with reference to the said additional issues framed and shall, thereafter, record findings on the said two additional issues and decide the suit afresh to that extent, preferably, on or before 31.12.2013.

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As a sequel, the miscellaneous applications, if any, shall stand dismissed. There shall be no order as to costs.

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____________________ VILAS V. AFZULPURKR, J

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September 17, 2013 Note: Registry shall sent back the records along with this judgment to the trial Court within two (2) weeks from today. (B/o) DSK

Gundabala Kamaladevi v. The Mandal Revenue Officer

Case brief

What is this about?

What did the court decide?

Gundabala Kamaladevi v. The Mandal Revenue Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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