IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH
THURSDAY, THE THIRD OF JULY TWO THOUSAND AND FOURTEEN PRESENT THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
AS.No.2102 of 1991
Between :
Kamineni Narasimha Rao,
Died (per LRs Appellant Nos.2 to 7 Vide ASMP.No.1739 of 2011)
Vs.
The State of Andhra Pradesh, Represented by the District Collector, Guntur, Guntur District and others.
…Appellants
…Respondents/ Defendant Nos.1 and 2 and plaintiff Nos.3 and 4
Counsel for Appellants : Sri V.S.R. Anjaneyalu
Counsel for respondent : -
AS.No.2647 of 1993
Between :
Kamineni Narasimha Rao
Vs.
Shaik Abdulla and another.
…Appellant/Defendant/ Petitioner/Respondent
…Respondents/Petitioners/
Plaintiffs
Counsel for Appellants : Sri V.S.R. Anjaneyalu
Counsel for respondent No.1 : Government Pleader for Appeals Counsel for other Respondents : -
The Court made the following : [order follows] THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO AS.No.2102 of 1991 and AS.No.2647 of 1993 COMMON JUDGMENT :
Since the issue in these appeals is common, they are being disposed of by this common judgment.
A.S.No.2102 of 1991 :
2. The appeal A.S.2102 of 1991 is filed under Section 96 of CPC challenging the judgment and decree dt.23.08.1991 in OS.No.76 of 1984 on the file of the Sub-Ordinate Judge, Tenali.
3. The appellant herein is 4th defendant in the above suit.
4. Pending appeal he died and his legal representatives have been brought on record vide order dt.19.06.2012 in ASMP.No.1739 of 2011.
5. The subject matter of this appeal is an extent of Acs.1.16 cents (Dry) in D.No.193/A1 and Acs.1.52 cents within Acs.10.57 cents of wet in D.No.193/A-3 in Jampani Village, Tenali Taluk, Guntur District.
THE BRIEF FACTS OF THE CASE :
6. One Shaik Mohammed Yousuf (for short, ‘Yousuf’) is a resident of Jampani Village and was a landless person. He applied for assignment of certain land vide Ex.A.2 dt.08.01.1951. The Board of Revenue (Government of Madras) recommended vide letter B.8117/50-1 dt.04.07.1951 for assignment of land to h i m . Under Ex.A.3 (G.O.Ms.No.2246) dt.28.08.1951, the Government of Madras directed the District Collector, Guntur to assign Acs.1.16 cents in D.No.193/1A of Jampani Village and Acs.3.84 cents in D.No.193/A3 of the above village to Yousuf, since this land was already under his encroachment. Later, the Collector, Guntur in R.Dis.No.A.1119082 dt.28.09.1951 assigned five acres of land mentioned above to Yousuf.
7. One Khatum Bi and Safura Bi are the daughters of Yousuf. Karimbi is his wife.
8. Khatum Bi and Safura Bi filed the above suit for declaration of their title to the plaint schedule property and also for declaration that the order of the Government in Memo No.B1/898/66 dt.26.12.1970 is illegal, invalid and not binding on them; for a consequential mandatory injunction directing the Mandal Revenue Officer, Vemuru to issue D-Form Patta to them; for recovery of possession of the plaint schedule property after evicting defendant nos.3 and 4 from the land; and for past profits.
9. They contended that the plaint schedule property consisting of Ac.1.16 cts in D.No.193/A1 and Ac.1.52 cts in D.No.193/A3 in Jampani Village is part of the land assigned to Yousuf; that he continued in possession and enjoyment of the said land with absolute rights from 1957 onwards and raised paddy and other crops; that the said orders were binding on the Government of Andhra Pradesh; subsequent to the assignment, Yousuf spent huge amounts to lower the level of the dry land and made it fit for raising wet crops; and the State of Andhra Pradesh had also upheld the assignment in favour of Yousuf by an order in Memo No.3369-B-56-9 dt.27.12.1958. He contended that after Yousuf died, his widow Karimbi enjoyed the land; after her death, the plaintiffs are enjoying the said property; one Brahmayya, the husband of 3rd defendant and father of 4th defendant influenced the Tahsildar, Tenali to pass an order in favour of the said Brahmayya permitting him to do temporary cultivation of an extent of Acs.2.68 cents vide order dt.30.06.1970 for 1379 Fasli under Ex.B.9 without issuing notice to plaintiffs; and taking advantage of the said order, defendant nos.3 and 4 trespassed into the plaint schedule property using force. They alleged that plaintiffs filed OP.No.129 of 1971 against them before the Sub-Ordinate Judge, Tenali which was re-numbered as OS.No.78 of 1974; it was decreed after contest on 31.01.1976 under Ex.A.14; pursuant thereto, the plaintiff nos.1 and 2 had taken possession of the plaint schedule property in EP.No.68 of 1976 on 10.04.1976; Ex.A.9 is the delivery receipt issued in the said proceeding in their favour; and that defendant nos.3 and 4 had also filed OS.No.69 of 1976 which was dismissed.
10. They contended that the Tahsildar then brought into existence certain documents purporting to show that plaint schedule land is Government poramboke and that plaintiffs are encroachers and on that basis he evicted the plaintiffs on 05.09.1976 and put defendant nos.3 and 4 in possession of the land once again. They alleged that the State or its sub-ordinate officials had no jurisdiction to interfere with the land which has already been validly assigned in favour of the plaintiffs’ predecessors and to dispossess them; that the plea of the respondents that there was a modification by the Government in Memo No.B1/898/66 dt.26.12.1970 and the assignment to Yousuf was reduced only to Acs.2.50 cents cannot be accepted, since the modification orders were illegal, invalid, null and void and without jurisdiction; and therefore, they should be granted the above reliefs.
11. The State and defendant nos.2 to 4 filed a written statement, which was adopted by defendant nos.2 to 4, admitting that vide G.O.Ms.No.2246 of Madras Government dt.28.08.1951, the District Collector had assigned five acres of dry land in favour of Yousuf and the District Collector also passed assignment orders assigning the said extent to Yousuf. But they alleged that subsequently, vide Memo No.B1/898/66 dt.26.12.1970, there was a modification of the assignment in favour of the plaintiffs’ predecessor and the assignment was reduced to Acs.2.50 cents only and the balance of Acs.2.50 cents was resumed and handed over to the father of 4th respondent Brahmayya; that no patta was granted to the plaintiffs and therefore, the plaintiffs’ father had not acquired any right in the land. They alleged that the State had power/jurisdiction to cancel assignments or reduce the extents in view of change of policy. They denied the allegation that huge amounts were spent to convert the lands into wet lands or that the Tahsildar colluded with Brahmayya or that defendant nos.3 and 4 had trespassed into the said land. They also alleged that there was no valid notice under Section 80 CPC.
12. On the basis of the above pleadings, the trial court framed the following issues :
“1. Whether the plaintiffs have got absolute rights and title to the suit land ?
2. Whether the suit schedule land was assigned to Md. Yusuf, father of plaintiffs by the Collector, Guntur as alleged by the plaintiffs ?
3. If so, whether the 1st defendant State was entitled to alter the extent of assignment already made to father of plaintiffs and assign a portion out of Acs.5.00 to Kommineni Brahmayya, as pleaded by the 1st defendant ?
4. Whether the suit land is poramboke land, as pleaded by the 1st defendant ?
5. Whether the plaintiffs are entitled to the reliefs of declaration and possession ?
6. Whether the plaintiffs are entitled for the past profits ?
7. Whether the suit is bad for want of Sec.80 CPC notice against defendants 1 and 2 ?
8. To what reliefs plaintiffs are entitled to ? Additional Issues :
1. Whether the plaintiff is entitled for declaration that the modified order of the 1st defendant in Memo No.B/1/898 dated 26.12.1970 is illegal, in valid and not binding on the plaintiffs ?
2. Whether the plaintiff is entitled for mandatory injunction as prayed for ?”
13. Before the trial court, the plaintiffs examined one Raheem Baksh as PW.1 and marked ExsA.1 to A.21. The defendants examined DWs.1 and 2 and marked Exs.B.1 to B.11.
14. Pending suit, the plaintiffs 1 and 2 died and plaintiffs 3 and 4 were impleaded as their successors-in-interest.
15. By judgment and decree dt.23.08.1991, the trial court decreed the suit. It held that Yousuf was a landless poor person and he had encroached Acs.1.16 cents in D.No.193/1A and Acs.3.84 cents in D.No.193/A3 of Jampani Village and applied to Revenue officials for assignment of the said land to him under Ex.A.2 dt.08.01.1951; this was then referred to District Collector, Guntur under Ex.A.3 and ultimately, the Government of Madras vide G.O.Ms.No.2246 dt.28.08.1951 under Ex.A.3 directed assignment of land to him; this was done pursuant to the orders of Board of Revenue; in view of the said Government Order, the District Collector, Guntur under Ex.A.21 assigned five acres of land vide proceedings R.Dis.No.A1119082-50 dt.28.09.1951 to the said Yousuf; that Yousuf died on 13.05.1954; that his widow Karim Bi filed M.C.No.2 of 1955 before I Class Magistrate, Tenali under Section 145 Cr.P.C. against one Gali Ramayya alleging interference by him; that the said M.C.No.2 of 1955 was allowed on 06.08.1955 under Ex.A.4 holding that she is in possession of the land and an injunction was granted restraining the respondents therein from interfering with her possession; later one Kolla Subbayya and Kolla Krishnayya also tried to interfere with her possession and enjoyment of the said land; she then approached the Tahsildar who initiated proceedings for their eviction; that the appeal filed by the said persons to Revenue Divisional Officer was dismissed under Ex.A.5 dt.23.09.1960; subsequently, Kolla Subbayya filed a suit for permanent injunction against Karimbi and others in OS.No.215 of 1960 before District Munsif Court, Repalle, but the said suit was dismissed on 09.01.1963 under Ex.A.6 and the said judgment was also confirmed in AS.No.107 of 1963 by Sub-Court, Tenali under Ex.A.8 dt.16.11.1967.
16. It held that the Tahsildar, Tenali passed orders dt.30.06.1970 granting permission to the father of 4th respondent by name K. Brahmayya to temporarily cultivate an extent of Acs.2.68 cents in Sy.No.193/1A of Jampani Village for 1379 Fasli, pending finalisation of formal assignment proposals under Ex.A.9; that he had no jurisdiction to do so after assignment was granted by the Government in favour of Yousuf.
17. It held that plaintiff nos.1 and 2 filed OS.No.78 of 1974 under Section 9 of Specific Relief Act,1963 before the Sub-Court, Tenali against 4th respondent and his mother who are the heirs of Brahmayya, alleging trespass and it was decreed under Ex.A.14 dt.31.01.1976; that 4th respondent and his mother then filed OS.No.69 of 1976 before the Sub-Court, Tenali for declaration of their right to the land and for possession thereof, apart from permanent injunction but it was dismissed in Ex.A.12 dt.09.06.1978. It held that plaintiffs obtained possession of the plaint schedule property in execution of the decree in E.P.No.68 of 1976 in OS.No.78 of 1974 as can be seen from Ex.A.9 delivery receipt dt.13.04.1976.
18. It held that thereafter, again they were dispossessed by the State invoking Sections 6 and 7 of the Andhra Pradesh Land Encroachment Act, 1905 and orders of eviction were passed against them which were confirmed in appeal; thereafter, they filed revisions and the revisions were dismissed under Ex.A.10 and Ex.B.4, wherein the Joint Collector and the Commissioner of Land Revenue relied on a Government Memo No.898/66/23 dt.26.12.1970 whereunder only Acs.2.50 cents was assigned to plaintiffs (Ex.B.6).
19. It rejected the contention of the State that because no patta was issued to plaintiffs’ predecessor or to plaintiffs, the State has got jurisdiction and power to modify the earlier orders of assessment.
20. It further held that Ex.A.5 order dt.23.06.1960 of the Revenue Divisional Officer showed that Yousuf and his wife were treated as persons entitled to assignment of five acres of land pursuant to orders of the Government of Andhra Pradesh as well as the Government of Madras and plaintiffs’ predecessors have been in possession of the land as declared by the civil courts in the above decisions. It therefore held that the Tahsildar could not have initiated any proceedings for assignment of land in favour of 4th defendant or his father in contravention of the orders of the Government and District Collector; that the proceeding under Ex.B.6 dt.26.12.1970 does not show why the earlier orders of 1951 and 1958 were modified; that there was no jurisdiction to even modify the said orders since any suo moto revision should be done only within three years from the date of assignment and not thereafter as per Para 18 of BSO 15; in any event, it is the Board of Revenue which is empowered to set aside or cancel or modify any decision of any officers sub-ordinate thereto under the above provision and the said provision is not applicable since the decision was of the Government of Madras in 1951 and later of the Government of Andhra Pradesh in 1958, to assign the land to Yousuf; and as the Government was not sub-ordinate to the Board of Revenue, Ex.B.6 order is without jurisdiction.
21. It also held that Para 18 of BSO 15 was brought into effect vide G.O.Ms.No.1892 Revenue dt.30.10.1963 by which time already there was an assignment in 1951 or 1958 in favour of Yousuf and the said provision would have no retrospective effect. It noted that there was no allegation of misrepresentation or fraud against Yousuf in order to disentitle him to assignment of land.
22. It declared that Tahsildar had initiated proceedings for revision without any basis or reason and the plaintiffs were not out of possession at any time before the orders of revision. It declared that Ex.B.6 order, on account of lack of jurisdiction to pass it, is null and void, non-est in the eye of law and any consequential orders passed under the provisions of the Land Encroachment Act by the Joint Collector or the Commissioner of Land Revenue are equally invalid and void.
23. It held that merely because no patta is granted to plaintiff’s father, the State cannot take any action to evict the plaintiffs because the decision to make the assignment was made on a recommendation of the Board of Revenue and had been approved by Revenue Department and also the Government; the Tahsildar, who was sub-ordinate to the Government, Board of Revenue and the Collector, could not have deprived the plaintiffs of enjoyment of the land since he is bound by their decisions; and that patta is only a formal order pursuant to the assessment order and issuance of patta is a procedural aspect.
24. It declared that Ex.B.6 is illegal, invalid and non-est in the eye of law; that the plaintiffs were not encroachers and had succeeded to the land assigned to their father under a valid order of assignment; that their possession is not unlawful and they are not liable to be evicted under the provisions of the Andhra Pradesh Land Encroachment Act, 1908. It held that the plaintiffs are entitled to profits.
25. It held that the notice under Section 80 CPC was issued on 20.12.1983 under Ex.A.15 and since the suit was filed on 28.03.1984, there was valid notice under Section 80 CPC. It also directed the MRO to issue D-Form patta to an extent of five acres including the plaint schedule property as per the decision of the Board of Revenue and the Government in 1951 and 1958.
26. Challenging the same, the appeal AS.No.2102 of 1991 is filed.
A.S.No.2647 of 1993 :
27. The plaintiff nos.3 and 4 in the suit filed IA.No.846 of 1992 under Order XX Rule 12 CPC to determine the profits. In these proceedings an Advocate Commissioner had been appointed to assess the quantum of profits. Objections were filed by both sides to the determination made by the Advocate Commissioner. PWs.1 to 3 and DW.1 were examined.
28. By order dt.26.04.1993, the trial court determined the profits at the rate of Rs.56,500/- for the periods 1981-82 to 1992- 93.
29. Challenging this determination, AS.No.2647 of 1993 was filed by the 4th defendant.
30. Pending appeal A.S.2102/1991, the sole appellant died and his legal representatives have been brought on record.
31. Heard Sri V.S.R. Anjaneyalu, counsel for the appellants and the learned Govt.pleader for appeals for respondent no.1/State of Andhra Pradesh.
32. The other respondents were served but none appeared for them. In ASMP.No.656 of 2014 this Court had also permitted service of notice on the legal representatives of the deceased 2nd respondent through paper publication as well as other intermeddlers in the property by way of publication of notice in Andhra Jyothi Daily Newspaper, Guntur Edition and the same was done but there is no representation on their behalf.
THE CONTENTIONS OF THE APPELLANTS :
33. The counsel for appellants contended that the judgment and decree dt.23.08.1991 in OS.No.76 of 1984 is erroneous; that the court below erred in decreeing the suit by upholding the title of plaintiffs and in not accepting Ex.B.6 decision of the Government dt.26.12.1970 granting assignment of only Acs.2.50 cents to plaintiffs’ ancestor Yousuf and ignoring the temporary assignment made in favour of 4th defendant’s father under Ex.B.9 dt.30.06.1970 for temporary cultivation of an extent of Acs.2.68 cents in Sy.No.193/A.1. The learned Govt. Pleader for the State also supported the appellants.
THE ANALYSES BY THIS COURT :
34. The sole basis of the claim of the appellants to file this appeal is Ex.B.9, the assignment allegedly made by the Tahsildar, Tenali on 30.06.1970 for an extent of Acs.2.68 cents in Sy.No.193/A1 in favour of their predecessor and father Brahmaiah. Admittedly, this assignment was only for temporary cultivation for 1379 Fasli. There is no subsequent order in favour of 4th respondent’s father or 4th respondent permitting him to do any cultivation in respect of this land. In the absence of any further assignment in his favour, he has no locus to file the appeal.
35. Even otherwise, the premise on which Ex.B.9 assignment for temporary cultivation was made in favour of 4th defendant’s father in respect of Acs.2.68 cents in Sy.No.193/A1 is the order dt.26.12.1970 under Ex.B.6 in M.B1/898/68/23 of the Andhra Pradesh Government reducing the extent of assignment in favour of plaintiff’s predecessor-in-title from five acres to Acs.2.50 cents. The court below has given cogent reasons why the said order dt.26.12.1970 passed by the State Government is without jurisdiction. The State has not questioned the decision of the trial court on this point by filing a separate appeal. Therefore it is deemed to have accepted it. As a respondent in the appeal, it cannot be allowed to attack the decree of the trial court.
36. In fact, Ex.B.9 order assigning the land in favour of 4th defendant’s father on 30.06.1970 was passed even prior to the cancellation of assignment of Yousuf under Ex.B.6 dt.26.12.1970. Therefore, Ex.B.9 itself is without jurisdiction particularly, when Ex.B.6 was held to be without jurisdiction.
37. The court below had referred to the application Ex.A.2 dt.08.01.1951 submitted by Yousuf for assignment; Ex.A.3 dt.28.08.1951 G.O.Ms.No.7246 (Revenue Department) whereunder the then Government of Madras had, upon the recommendation of the Board of Revenue, directed the District Collector to assign five acres of land including the plaint schedule property to Yousuf; and also the proceedings under Section 145 Cr.P.C. in MC.No.2 of 1955 (Ex.A.4) apart from the civil court decisions in OS.No.215 of 1960 (Ex.A.7) and in AS.No.107 of 1963 (Ex.A.8), OS.No.69 of 1976 (Ex.A.12) as well as OS.No.78 of 1974 (Ex.A.14). These proceedings categorically show that Yousuf was assigned Acs.5.00 of land by the Government of Madras in 1951; that it was confirmed by the Government of Andhra Pradesh and was implemented by the Revenue Divisional Officer, Tenali under Ex.A.5 dt.23.03.1960 and on that basis, the above cases were decided in favour of plaintiffs and their predecessors-in-title.
38. In my opinion, the trial court has properly considered the evidence on record and held that Ex.B.6 order dt.26.12.1970 was without jurisdiction, null and void and not binding on the plaintiffs. It has also rightly held that Ex.B.9 order dt.30.06.1970 of the Tahsildar is also void, since he had no jurisdiction to pass orders contrary to the orders of the State Government and the District Collector.
39. I therefore do not find any merit in the appeal AS.No.2102 of 1991 and the same is accordingly dismissed with costs.
40. Coming to AS.No.2647 of 1993, this appeal arises out of an order passed in an application IA.No.846 of 1992 filed in O.S.76 of 1984 by the plaintiffs seeking past mesne profits as well as future mesne profits.
41. In this application, an Advocate-Commissioner had been appointed and he examined PWs.1 to 3 and also RW.1. The Advocate-Commissioner had come to the conclusion that in the plaint schedule property consisting of Acs.1.52 cents (Wet) and Acs.1.16 cents (Dry), patta and blackgram were grown with water supply from the southern side of Bhattiprolu main drain; and that the total mesne profits for the period 1981-82 to 1992-93 is Rs.51,000/-.
42. Objections to this assessment of the Commissioner were filed by both sides and although plaintiffs pleaded that the yield of paddy would be 30 bags per acre and that of blackgram would be 4 to 5 bags per acre, the trial court did not accept the same and came to the conclusion that the yield of paddy per acre would be only to 18 to 19 bags and the yield of blackgram would be 2 ½ bags per acre. It however felt that the deduction of 50% towards expenditure was on a higher side and concluded that expenditure would be at best 1/3rd for paddy and 1/5th for blackgram. It adjusted this correction in the assessment made by the Commissioner and arrived at a sum of Rs.56,500/- as mesne profits for the period 1981-82 to 1992-93.
43. Although the counsel for appellants sought to contend that even this assessment is excessive, since no documentary evidence had been led in by him and since only 4th defendant was examined before the Advocate-Commissioner, it is difficult to accept the plea of appellants that the assessment by the court below is wrong.
44. The court below had not accepted the plea of plaintiffs that the yield would be 30 bags of paddy or 4 to 5 bags of blackgram per acre on the ground that it was an exaggeration and took a reasonable figure of 18 bags of paddy per acre and 2 ½ bags of blackgram per acre of the yield. This assessment cannot be found fault with in the absence of any contra evidence. Therefore, I do not find any merit in this appeal also. Consequently, AS.No.2647 of 1993 is also dismissed with costs.
45. In the result, AS.No.2102 of 1991 and AS.No.2647 of 1993 are dismissed with costs.
46. Miscellaneous applications, pending if any, in this appeal shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date : 03-07-2014 Ndr/*