IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY NINETH DAY OF JUNE TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.348 of 2006 Between:
The Horsely Hills School, Horsely Hills represented by its Correspondent Sri B. Dwarakanatha Reddy .. Appellant AND The State Government of A.P. represented by the District Collector, Chittoor and others .. Respondents JUDGMENT:
The second appeal is directed against the judgment and decree in A.S. No.10 of 2003 on the file of the VII Additional District Judge/Fast Track Court, Madanapalle, dated 02-03-2006.
The factual background for the dispute is that in O.S.
No.237 of 1993 on the file of the Principal Junior Civil Judge’s Court, Madanapalle, the appellant herein sought for a permanent injunction against the respondents herein from interfering with the possession and enjoyment of the suit schedule property and also from allotting or assigning the same to others, etc. The appellant claimed that the Government had assigned Ac.11.30 cents in S.No.539 and Ac.9.10 cents in S.No.540 to the 3rd respondent society after collecting Rs.10,000/- towards the land cost under challan No.275, dated 12-09-1973. The 3rd respondent society was alleged to have made the land into house plots and to have allotted the same to its members for construction of houses. The appellant claimed that the plots allotted to 11 members named in the plaint in S.No.539 had houses constructed by them long prior to 1985 and there were further transactions of transfer of plots by the society to the members and by some members to others. The appellant claimed to have taken originally Government buildings on lease for running the school from 10-02-1975 and as the Government took back the possession of its buildings, the school was moved into the buildings constructed by the 11 members of the 3rd respondent society specified in the plaint. The 3rd respondent society was stated to have filed O.S. No.97 of 1985 against some of the members against permitting the appellant school occupying their buildings. In that suit, a commissioner was appointed by the Court and he filed his report. The State Government, sued as the 1st respondent herein, had nothing to do with the running of the school in the buildings of the members of the 3rd respondent society and the Mandal Revenue Officer/2nd respondent herein passed an order of resumption of the land assigned to the 3rd respondent society except Ac.0.45 cents occupied by 9 houses and the said order of resumption was without any enquiry and without any opportunity to the affected persons. As market value of the assigned land was collected from the 3rd respondent society, the grant amounted to a sale and the State Government has no right of resumption. As the appellant school is in possession of Ac.6.44 cents along with various buildings therein, which land is not liable for resumption, it issued a notice under Section 80 of the Code of Civil Procedure and filed the suit for permanent injunction.
The Government and the Mandal Revenue Officer resisted the suit contending that though the land was assigned to the 3rd respondent society for a consideration of Rs.500/- per acre, the assignment was subject to the conditions in the D-form patta. The 3rd respondent society made the entire land into 53 plots and allotted 37 plots to its members, out of whom 27 members constructed houses. The defaulting members were proceeded against by the society and in the meanwhile, as the use of the buildings since 1986 was contrary to condition No.9 of the D-form patta, the Tahsildar, Madanapalle issued a notice for resumption of the land in 1983, reiterated it again in 1984. Further action was initiated for resumption of the land left unutilized by the 3rd respondent society and the assignment was cancelled by the proceedings dated 28-02-1992. The land was resumed on 29-07-1992 and the appeal before the Revenue Divisional Officer, Madanapalle against the resumption orders was dismissed. Therefore, respondents 1 and 2 desired the suit to be dismissed.
While the 3rd respondent remained ex parte, the trial Court framed appropriate issues about the possession and enjoyment of the appellant, the binding nature of the orders of resumption and the entitlement of the appellant for a permanent injunction. After examining P.Ws.1 to 3 and D.Ws.1 and 2 and marking Exs.A.1 to A.25, B.1 to B.6 and X.1 to X.7 during trial, the trial Court rendered its judgment on 23-07-1998.
In its judgment, the trial Court noted the chronology of events leading to the attempted resumption of the land by the Government, which was resisted by the appellant. The trial Court noted that the alienation order was passed in respect of Ac.20.60 cents in favour of the 3rd respondent society at Rs.500/- per acre, which amount was paid by the 3rd respondent society before the grant of the assignment patta. The trial Court also noted that out of the disputed land, the school building of the appellant is admitted to be in an extent of Ac.6.44 cents, while an extent of Ac.4.61 cents was vacant without any constructions and an extent of Ac.0.45 cents was occupied by the constructions made by 9 members. The trial Court observed that the stand taken by the Government in the course of evidence was never the stand taken in its pleadings about the society allotting any plots in violation of the conditions of the patta and it observed that the appellant school was run in Government building earlier on lease for six years and it was only on resumption of the Government buildings by the Government that the school was shifted to the suit schedule property. The trial Court with reference to the oral and documentary evidence came to the conclusion that so far as Ac.6.44 cents are concerned, it is in the possession of the appellant school with the school building, kitchen room and hostel building with play ground being located in the same. Even the resumption notices were considered to be probablising the possession of the appellant and the trial Court was of the opinion that the proceedings of resumption issued by the Mandal Revenue Officer, B.Kothakota are not binding on the appellant school, as the assignment in favour of the 3rd respondent society was after receipt of monetary consideration. The trial Court also observed that in consequence, the appellant school is entitled to permanent injunction against interference with its possession and enjoyment and also from any allotment or assignment to any others.
In A.S. No.10 of 2003 against the said judgment and decree, the first appellate Court in its judgment, dated 02-03-2006 reversed the judgment and decree of the trial Court and dismissed the suit. While dismissing the suit, the first appellate Court also observed that the defendants did not dispute about the allotment of sites by the 3rd respondent society, but only disputed the utilization of the property by the allottees. The lower appellate Court also noted that defendants 1 and 2 i.e., the Government and the Mandal Revenue Officer, were not disputing the possession of the appellant school to an extent of Ac.6.44 cents, but their contention was that the possession was not authorized. The first appellate Court felt that the period of lease under the lease deeds obtained by the appellant school on 01-02-1985 for a period of 20 years expired by 01-02-2005 and the appellant is not entitled to seek permanent injunction after expiry of the period of lease. Therefore, it considered the possession of the appellant to be not legal disentitling it to permanent injunction against the defendants and hence, set aside the decree of the trial Court and dismissed the suit with costs.
The appellant contended herein that the judgment of the lower appellate Court is vitiated by its wrong conclusion about the legality of its possession of the suit property. The plots allotted to the members of the 3rd respondent society now in possession of the appellant school were lawfully allotted with absolute rights and whatever be the period of lease mentioned in the lease deeds obtained by the appellant school, in the absence of any dispute between the lessors and the lessee, respondents 1 and 2 are not entitled to disturb the possession of the lessee in respect of Ac.6.44 cents. The appellant also contended that the relevant Board Standing Orders were misinterpreted by the first appellate Court and hence, it suggested two substantial questions of law for consideration of the appeal about the competency of respondents 1 and 2 to initiate resumption proceedings in respect of the land assigned by collecting market value without any opportunity to the 3rd respondent society or its members and the disentitlement of respondents 1 and 2 to resume possession from the appellant school when there was no dispute between the lessors and the lessee and the lessors have no objection to continue the appellant school in possession of the disputed land.
The second appeal was admitted on the said questions and the arguments of Sri M.N. Narasimha Reddy, learned counsel for the appellant and Sri T. Ramulu, learned Government Pleader for Arbitration are heard.
It should be noted before proceeding further that in its interim order, dated 20-06-2006, this Court observed that the suit land is covered by school buildings, due to which an interim direction was given in favour of the appellant school and was also made absolute pending the appeal. In the orders on 05-12-2007 in A.S.M.P. No.82 of 2007, the learned Judge noted that the order of resumption was set aside by the Commissioner for Appeals and the matter was remanded to the Joint Collector for fresh enquiry, which was in progress. The learned Judge further observed that the appellant is entitled to remain in possession on the strength of the order of temporary injunction in force till disposal of the suit and the decree for permanent injunction pending disposal of the appeal. Therefore, the learned Judge ordered that the appellant shall be entitled to remain in possession of the suit schedule property, but it shall not undertake any construction or otherwise alter the nature of the property or create any third party interest.
Questions 1 and 2:
The facts involved are not seriously in dispute and out of the land assigned to the 3rd respondent society, the subject matter of consideration in this dispute is only Ac.6.44 cents in S.No.539 said to be in possession of the appellant school. The original ownership of the land with the Government, the assignment of the same along with some other land to the 3rd respondent collecting the market value of Rs.500/- per acre, consequential delivery of possession to the 3rd respondent society and allotment of this land to some of the members of the society, are admitted and not in dispute. The trial Court and the first appellate Court also found on the basis of the oral and documentary evidence that the members to whom these Ac.6.44 cents were allotted, appeared to have made some constructions in the land and further appeared to have inducted the appellant school into possession of the same by the time of the suit. Respondents 1 and 2 have also admittedly initiated proceedings for resumption of the entire assigned land prior to the suit and by the time of the judgment in the suit, the matter was said to be pending before the Joint Collector in revision after the dismissal of the appeal against the order of resumption by the Revenue Divisional Officer. The first appellate Court referred to the orders of resumption, the dismissal of the appeal against the same, the filing of W.P. No.1631 of 1993, the interim orders passed by the High Court therein and the proceedings pending before the Joint Collector. The first appellate Court proceeded to dismiss the suit mainly on the ground of expiry of the period of lease between the appellant school and the members of the 3rd respondent society rather than on any decision on the entitlement of respondents 1 and 2 to disturb the possession of the appellant school in pursuance of any resumption proceedings. As rightly contended by Sri Narasimha Reddy, learned counsel for the appellant, the continuance in possession of the suit land by the appellant school with the pleasure of the members of the 3rd respondent society, who leased out the land to it for a period of 20 years, cannot be a matter of concern for respondents 1 and 2 nor will the expiry of any lease entered into between them confer any right on respondents 1 and 2 to disturb the possession of the appellant school, if it is otherwise entitled to the same. The possession of the appellant school cannot be considered to be not legal on any such ground, as the original assignment of the 3rd respondent society, its allotment of plots to its members and the possession of the members or persons claiming under the members cannot be considered, per se, illegal, while the claim of respondents 1 and 2 about the violation of the terms and conditions of the patta is due to the manner of utilization or enjoyment of the plots by the appellant school claiming through the members.
While the appellant cannot, therefore, be considered to be not in legal possession of the property, the other questions about the person representing the appellant school also representing the 3rd respondent society and the questionable manner in which the transactions were conducted by the society and by the members or by the school, may form the background for the way in which the appellant school came into possession of the suit property, but the same may not be relevant in determining whether the appellant school is entitled for protection of its possession.
The learned Government Pleader has brought to notice the proceedings of the Joint Collector, dated 16-12-2009 disposing of the matter after remand by the office of the Chief Commissioner of Land Administration, under which the Joint Collector had noted the entire land to have been resumed possession on 23-03-2006 after recording a panchanama. However, the proceedings themselves note about the appellant too approaching the Chief Commissioner of Land Administration with a revision on 01-05-2006 and the matter being remanded back again to the Joint Collector. This statement about the Mandal Revenue Officer taking possession of the entire land is also contrary to the positive findings of the trial Court and the first appellate Court and even the first appellate Court only doubted the legality of the possession of the appellant school, but not the factum of its possession, which it noted to be undisputed even by respondents 1 and 2 herein. In fact, if such a possession had been already taken, the said proceedings of the Joint Collector need not have directed the Tahsildar to proceed further as per law to take possession of the land, as originally intended by the order of resumption, dated 28-07-1992. Therefore, apart from the question as to whether the proceedings of the Joint Collector, dated 16-12-2009 can be straight away considered as admissible material in the second appeal, the proceedings do not in any way improbablise the conclusions of the trial Court and the first appellate Court about the existing possession of the appellant school as on the date of the suit and even on the dates of respective judgments and that possession can be considered to have been left undisturbed in the absence of any other material on record.
It is admitted that against the said orders of the Joint Collector, dated 16-12-2009, the appellant school has preferred a revision again before the Commissioner for Appeals, Office of the Chief Commissioner of Land Administration on 18-03-2010 and the same is pending.
Under such circumstances, as already observed by the learned Judge in the interim orders, dated 05-12-2007, the appellant school appears to be entitled to remain in possession of the suit schedule property subject, of course, to the final result of the proceedings for resumption pending in revision before the Commissioner for Appeals. No expression of opinion need be made herein about the right or otherwise of respondents 1 and 2 to resume possession from the appellant school or the 3rd respondent society or its members, as any such expression of opinion will prejudice the rights and interests of the parties in the proceedings before the Commissioner for Appeals or any further proceedings that may arise thereafter. But, for purposes of considering the relief of permanent injunction sought for by the appellant school, it can be safely noted that the possession of the appellant school cannot be considered unlawful or illegal in any manner whether it is liable to be continued or terminated in consequence of the final result of the resumption proceedings and therefore, respondents 1 and 2 cannot interfere with such possession except otherwise under due process of law in pursuance of the result of the proceedings for resumption or in any other permissible manner. The dismissal of the suit with costs by the first appellate Court, reversing the judgment and decree of the trial Court cannot be sustained on the admitted facts and at the same time it should be observed that the direction of the trial Court prohibiting defendants 1 and 2 from allotting or assigning the land to any others etc., and granting unqualified permanent injunction also cannot be sustained.
Therefore, while allowing the second appeal, the relief to be granted in the suit has to be moulded accordingly and in the peculiar facts and circumstances of the case, the parties should be directed to bear their own costs in the second appeal.
In the result, the judgment and decree in A.S. No.10 of 2003 on the file of the VII Additional District Judge/Fast Track Court, Madanapalle, dated 02-03-2006 are set aside and the judgment and decree in O.S. No.237 of 1993 on the file of the Principal Junior Civil Judge’s Court, Madanapalle, dated 23-07-1998 are modified by making the permanent injunction granted in favour of the plaintiff school operative against defendants 1 and 2 except otherwise than in due process of law. The second appeal is allowed accordingly without costs subject to the said qualification to the permanent injunction granted by the trial Court.
G. BHAVANI PRASAD, J Date: 29-06-2010 Svv