V. Venkat Reddy, vs The District Collector,
2023 Latest Caselaw 4392 Tel

Telangana High Court

V. Venkat Reddy, vs The District Collector, on 27 December, 2023

Author: G. Radha Rani

Bench: G. Radha Rani

         THE HONOURABLE DR.JUSTICE G. RADHA RANI
                    SECOND APPEAL No.1260 of 2006
JUDGMENT:

This appeal is filed by the appellants-plaintiffs aggrieved by the

judgment and decree dated 28.07.2006 passed in A.S.No.62 of 1999 by the V

Additional District and Sessions Judge (FTC), Mahabubnagar, confirming the

judgment and decree dated 25.03.1997 passed in O.S.No.169 of 1991 by the District

Munsiff, Kalwakurthy.

2. The suit was filed by the appellants-plaintiffs seeking declaration that

the initiation of proceedings in file No.B/2461/91 and order dated 02.12.1991 passed

by the defendant No.2 (Mandal Revenue Officer, Amangal) as illegal and for

permanent injunction to restrain the defendants from evicting the plaintiffs from the

suit schedule property. The appellants-plaintiffs contended that one Krishnama

Charyulu, S/o. Narayana Chary was the original owner and pattedar of the suit land in

Sy.No.1284 of 2002 to an extent of Ac.10-00 gts., situated at Mangalpalli hamlet of

Amangal Village and Mandal. The fore-fathers of the plaintiffs were cultivating the

said land. The plaintiffs purchased the suit land under private sale documents from

the sons of Krishnama Charry. On the application of the plaintiffs, the Mandal

Revenue Officer, Amangal took up the matter for mutation of patta in the name of the

plaintiffs vide file Nos.ROR/32/1991 and 33/1991 to an extent of Ac.5-00 gts each in

the name of the plaintiffs. The Mandal Revenue Officer, Amangal issued notices to

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the plaintiffs as well as the legal heirs of the original pattedars. As the plaintiffs did

not pay the demanded amount to the legal heirs of the original pattedars, they filed a

false complaint to the defendant No.2 with incorrect facts. On that, the defendant

No.2 without any material initiated proceedings under the provisions of the Andhra

Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (for short, 'The A.P.

Assigned Lands (POT) Act') alleging that the suit land was government land and it

was assigned to late Krishnama Charyulu. The plaintiffs filed counters stating that

the land in question was patta land and in the khasra pahani of 1954-55 itself, the

name of the father of the vendor of the plaintiffs was recorded as pattedar to the suit

land. The defendant No.2 suo-motto without any material after enquiry at the

instance of the legal heirs of late Krishnama Charyulu held that the suit land was a

government land assigned by the government before 1954 in favour of Krishnama

Charyulu, without any material and passed orders on 02.12.1991 to deliver

possession of the suit land to the government. The plaintiffs were challenging the

said orders of the defendant No.2 as illegal on the following grounds:

i. The suit land was not a government land but it was a patta land and the provision of Assigned Lands Prohibition of Alienation Act was not applicable.

ii. No record was secured that it was assigned to late Krishnama Chary before 1954-55.

iii. Powers not vested in M.R.O. were exercised.

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3. The defendants 1 and 2 i.e., the District Revenue Officer,

Mahabubnagar and Mandal Revenue Officer, Amangal filed written statements

contending that the suit land was government land. Out of it, an extent of Ac.12-02

gts. was assigned to Sri Krishnama Charyulu prior to 1950-51 and therefore, the

survey number had been sub-divided as 1284/02, to that effect a supplementary

sethwar had also been issued by the survey and land records showing the assignee

i.e., Krishnama Charyulu as land holder. The said fact was admitted by the sons of

late Krishnama Charyulu, therefore, the suit land was not a patta land. The plaintiff

had purchased the suit land through a private sale deed. After the A.P. Assigned

Lands (POT) Act had come into force, as per Section 3 of the said Act, alienations of

government assigned lands was prohibited, therefore the alienations were void. The

plaintiffs purchased the suit land which was an assigned land. Hence, they do not get

any right or title over the suit schedule property. Therefore, defendant No.2 had

initiated proceedings under the A.P. Assigned Lands (POT) Act for violation of

Section 3 of the Act and passed orders resuming the suit land under Section 4 of the

said Act. The Sethwar would vividly discloses that Sy.No.1284/2002 was a

government land. The averment of the plaintiffs that the suit land was a patta land

was a false claim. The order of the defendant No.2 dated 02.12.1991 passed in file

No.B/2461/91 would lucidly elucidates the prehistory of the case. There were cogent

grounds for resumption of the suit land and the Mandal Revenue Inspector, Amangal

had taken the possession of the suit land into government custody on 04.12.1991

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under the cover of panchnama. The suit land was vested with the government

together with possession. Thus, the possession of the suit land had already been

taken over by lawful means. The suit land so resumed was proposed for assignment

free of cost to indigent landless poor, but the plaintiffs were putting hurdles and

threatening the proposed assignees with dire consequences under influence and

opposed granting of any injunction in favour of the plaintiffs. He further contended

that the civil court's jurisdiction was barred under the A.P. Assigned Lands (POT) Act

and the suit was liable to be dismissed on the said sole ground. The plaintiffs were

provided relief by way of an appeal before the Revenue Divisional Officer against the

orders of the defendant No.2 under the amended provisions of the A.P. Assigned

Lands (POT) Act and prayed to dismiss the suit with compensatory costs.

4. Basing on the said pleadings the trial court framed the issues as

follows:

i. Whether the plaintiffs are entitled for declaration that the order dated 02.12.1991 in file No.B/2461/91 passed by defendant No.2 is illegal and invalid?

ii. Whether the plaintiffs are entitled for perpetual injunction in respect of the suit land against the defendants as prayed for? iii. Whether the suit land is an assigned land? iv. Whether this Court has jurisdiction to entertain this present suit in view of the provisions of the A.P. Assigned Lands (POT) Act,1977?

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v. Whether the plaintiffs are actually in physical possession of the suit property as on the date of filing of the suit? vi. To what relief?

5. The plaintiff No.2 was examined as PW.1 and Exs.A1 to A5 were

marked on behalf of the plaintiff. Ex.A1 was the plaint sketch, Ex.A2 was the

certified copy of pahani for the year 1990-91, Ex.A3 was the proceedings of M.R.O.

Amangal in file No.2461/91 dated 02.12.1991, Ex.A4 was the ROR proceedings and

Ex.A5 was the khasra Pahani (1954-1955). The then M.R.O. Amangal was examined

as DW.1. Exs.B1 and B2 were marked on behalf of the defendants. Ex.B1 was the

certified copy of Sethwar for the year 1963 and Ex.B2 was the certified copy of the

Sethwar for the year 1954.

6. On considering the oral and documentary evidence on record, the

learned District Munsiff, Kalwakurthy vide judgment dated 25.03.1997 dismissed the

suit, observing that as per the entries in Exs.B1 and B2, the suit land was an assigned

land, Ex.A3, proceedings were passed after giving reasonable opportunity to the

plaintiffs, the entries in revenue records as well as the mutation proceedings would

not determine the right and title of the plaintiffs over the suit schedule property. The

trial court also further held that the jurisdiction of the civil court was barred under

Section 4 of the A.P. Assigned Lands (POT) Act, as such, it was not necessary to go

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into the issue as to who were in physical possession of the suit schedule property as

on the date of filing of the suit for granting the relief of perpetual injunction.

7. Aggrieved by the said dismissal of the suit, the plaintiff No.2 alone

preferred an appeal. The appeal was heard and decided by the V Additional District

Judge (FTC), at Mahabubnagar on 28.07.2006, confirming the judgment and decree

dated 25.03.1997 passed by the District Munsiff at Kalwakurthy in O.S.No.169 of

1991.

8. Aggrieved by the said dismissal of the suit by the courts below, the

appellants-plaintiffs preferred this second appeal. This Court on 01.05.2007

formulated the following substantial questions of law:

i. Whether the prohibition of alienation applies to the suit schedule land?

ii. Whether the suit schedule lands are not assigned lands within the meaning of Assigned Lands Prohibition of Alienation Act?

9. Heard Sri Vedula Srinivas on behalf of Ms. Vedula Chitralekha, the

learned counsel for the appellants on record and the learned Government Pleader for

appeals for respondents.

10. The learned counsel for the appellants contended that no document

was filed by the respondents to prove that it was an assigned land. The courts below

presumed that it was an assigned land because of the resumption order. The original

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patta of assignment was not placed before the Court. The plaintiffs were admittedly

in possession of the suit schedule property. To dispossess them valid proceedings

need to be passed. The A.P. Assigned Lands (POT) Act was a self-contained statute

providing for appellate remedy, but since the order passed by the M.R.O. was without

going through the assignment deed and the conditions of assignment, the order was a

nullity. When there was jurisdictional error, the civil court's jurisdiction could not be

barred and relied upon the judgment of the Hon'ble Apex Court in Harkishan Lal vs

State of Jammu & Kashmir 1 and the judgment of the combined High Court of

Andhra Pradesh and Telangana in Shaik Abdul Kalam Azad and Ors. Vs. A. Babu

and Ors. 2.

10.1. He further contended that khasra pahanis are the basic record of rights

and a presumption carries with regard to the entries recorded in the khasras and relied

upon the judgment of the Hon'ble Apex Court in Joint Collector, Ranga Reddy

Dist.& Another vs D.Narsing Rao & Ors. 3

11. Learned Government Pleader for Appeals on the other hand contended

that the entries in the record of right would carry evidentiary value, but they would

not confer any title on the plaintiffs. The claimants have to establish a clear title

superior to or better than the title of the Government in a suit for declaration of title

and relied upon the judgments of the Hon'ble Apex Court in Union Of India & Ors

(1994) 4 SCC 422

C.C.No.1459 of 2016 dated 02.06.2017 reported in MANU/AP/0575/2017

(2015) 3 SCC 695

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Vs. Vasavi Co-Op. Housing Society & Ors. 4, R. Hanumaiah and Anr. Vs.

Secretary to Government of Karnataka Rev.Dept. and Ors. 5.

11.1. He also contended that the A.P. Assigned Lands (POT) Act was

retrospective in its operation and it applies to the alienations made prior to the

commencement of the Act also and relied upon the Division Bench judgment of this

Court in Vemulapalli Chinna Kondayya and Ors. Vs. District Collector, West

Godavari District, Eluru and Ors. 6

12. On considering the arguments of the learned counsel on record and

the judgments of the courts below, it is considered fit to reformulate the substantial

questions of law as follows:

1. Whether the civil court's jurisdiction is barred in view of the provisions of the A.P. Assigned Lands (POT) Act?

2. Whether the suit lands are assigned lands or patta lands and whether the prohibition of alienation applies to the scheduled lands?

Substantial Question No.1:

Whether the civil court's jurisdiction is barred in view of the provisions of the A.P. Assigned Lands (POT) Act?

2014 AIR (SC) 937

210(2) SCC (Civil) 343

AIR 1981 AP 62

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13. The contention of the learned Government Pleader as well as the

observations of the courts below are that as per Section 4 of the A.P. Assigned Lands

(POT) Act, the jurisdiction of civil court to entertain any suit pertaining to the A.P.

Assigned Lands (POT) Act is barred. The learned counsel for the appellants on the

other hand contended that the civil courts' jurisdiction could be barred only if there

was no jurisdictional error. If the order was nullity, then the civil courts would have

jurisdiction to entertain the matter. He further contended that the M.R.O. proceeded

to pass the order without even going through the original patta. No document was

filed by the respondents-defendants to prove that it was an assigned land. Only

basing on assumptions and presumptions, the courts below validated the resumption

order.

14. In view of the rival contentions, it is considered fit to consider the

definition of the 'assigned land' under the A.P. Assigned Lands (POT) Act. Section

2(1) of the Act defines 'assigned lands' as follows:

"(1) "assigned land" means lands or house sites assigned by the Government to the landless or homeless poor persons under the rules for the time being in force, subject to the condition of non-alienation and includes lands allotted or transferred to landless or homeless poor persons under the relevant law for the time being in force relating to land ceilings; and the word "assigned" shall be construed accordingly."

(emphasis supplied).

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15. The landless poor person was also defined under Section 2(3) of the

Act as under:

"landless poor person" means a person who owns an extent of land not more than 1.011715 hectares (two and half acres) of wet land or 2.023430 hectares (five acres) of dry land or such other extent of land as has been or may be specified by the Government in this behalf from time to time and who has no other means of livelihood."

16. Section 3 of the Act prohibits transfer of assigned lands, it reads as

follows:

"3. Prohibition of transfer of assigned lands -

(1) Where, before or after the commencement of this Act any land has been assigned by the Government to a landless poor person for purposes of cultivation or as a house-site then, notwithstanding anything to the contrary in any other law for the time being in force or in the deed of transfer or other document relating to such land, it shall not be transferred and shall be deemed never to have been transferred; and accordingly no right or title in such assigned land shall vest in any person acquiring the land by such transfer.

(2) No landless poor person shall transfer any assigned land, and no person shall acquire any assigned land, either by purchase, gift, Lease (except in the case of Lease to the Andhra Pradesh Green Energy Corporation Ltd., for use as deemed fit and including for usage of non-agriculture purpose), mortgage, exchange or otherwise.

(2A) No assignee shall transfer any assigned house site, and no person shall acquire any assigned house site, either by purchase, gift, Lease (except in the

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case of Lease to the Andhra Pradesh Green Energy Corporation Ltd., for use as deemed fit and including for usage of non-agriculture purpose)], mortgage, exchange or otherwise, till completion of the period of 20 years from the date of assignment.

(2B) Where the assigned House site was alienated by the assignee as on the date of commencement of this Act, such house site shall be regularized in favour of the alienee as a one-time measure.

(2C) The eligible family shall be assigned house site only once in life time.

(3) Any transfer or acquisition made in contravention of the provision of sub-section (1) or sub-section (2) or sub-section (2A) shall be deemed to be null and void.

(4) The Provisions of this section shall apply to any transaction of the nature referred to in sub-section (2) in execution of a decree or order of a civil court or of any award or order of any other authority.

(5) Nothing in this section shall apply to an assigned land which was purchased by a landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement of this Act and which is in the possession of such person for purposes of cultivation or as a house-site on the date of such commencement."

17. For the application of Section 3 of the Act, it has to be first established

that an agricultural land or house site was assigned by the Government and the

assignee was a landless poor person and he alienated the same and the purchaser shall

not be another landless poor person who purchased for a valuable sale consideration.

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18. Section 4 deals with consequences of breach of provision of Section 3

of the Act, it reads as under:

"4. Consequences of breach of provisions of Section 3 :-

(1) If, in any case, the District Collector or any other officer not below the rank of a [Mandal Revenue Officer], authorised by him in this behalf, is satisfied that the provisions of sub-

section (1) of section 3, have been contravened in respect of any assigned land, he may, by order

(a) take possession of the assigned land after evicting the person in possession after such written notice as the Collector or Mandal Revenue Officer may deem reasonable and any crop or other produce raised on such land shall be liable to forfeiture and any building or other construction erected or anything deposited, thereon shall also be forfeited, if not removed by him, after such notice, as the Collector or the Mandal Revenue Officer may direct Forfeitures under this section shall be adjudged by the Collector or Mandal Revenue Officer and any property forfeited shall be disposed of as the Collector or Mandal Revenue Officer may direct; and;

(b) (i) reassign the said resumed land, other than those lands/areas as may be notified by the Government from time to time in public interest and for public purpose, to the transferee who purchased the land in good faith and for valuable consideration on or before 29th January, 2007, subject to the condition that he/she is landless poor person, and is in occupation of the land by using the said land for agriculture or as house site, as on the date of taking possession by eviction: Provided that the reassignment in case of transferee shall be

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limited to only such an extent that the total holding of the reassignee including any other land held by him/her does not exceed 5.00 Acres dry land or 2 ½ Acres wet land: Provided further that where the transferee who has purchased the land and got reassignment of it, or his legal heir, transfers the reassigned land, the land shall be resumed for assignment to the other eligible landless poor;

(ii) restore the said assigned land, other than those lands/areas as may be notified by the Government from time to time in public interest and for public purpose, to the original assignee, subject to the condition that he or she is landless poor person as on the date of restoration for one time; or

(iii) assign to other eligible landless poor person: Provided that the restoration of land shall be limited to only such an extent that the total holding including any other land held by him/her does not exceed 5.00 Acres dry land or 2 ½ Acres wet land: Provided further that where the original assignee or his legal heir, after first restoration transfers the assigned land, the land shall be resumed for assignment to the other eligible landless poor;

Provided also that if no eligible landless poor persons are available in the village/area, the resumed land will be utilised for public purpose.

Explanation: For the purpose of this clause "Public Interest" and "Public Purpose" shall mean and include, the Weaker Section Housing, Public Utility, Infrastructure Development, promotion of industries and Tourism or for any other public purpose;

(c) In the areas which may be notified by Government from time to time, time, lands resumed under clause 4(a) above, shall be utilized for public purpose.

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(2) An eviction under sub-section (1) shall be made by serving a notice in the manner prescribed in section 25 of the Andhra Pradesh Revenue Recovery Act, 1864 (Act II of 1864), or in any such other manner as the State Government may direct, on the person reputed to be in occupation or his agent requiring him within such time as the Collector or the Mandal Revenue Officer may deem reasonable after receipt of the said notice to vacate the land, and, if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and if the officer removing any such person shall be resisted or obstructed by any person, the Collector shall hold a summary inquiry into the facts of the case and if satisfied that the resistance or obstruction was without any just cause and that such resistance or obstruction still continues, may issue a warrant for arrest of the said person and on his appearance commit him to close custody in the office of the Collector or of any Mandal Revenue Officer for such period not exceeding thirty days as may be necessary to prevent the continuance of such obstruction or resistance or may send him with a warrant in the form of schedule for imprisonment in the civil jail of the District for the like period;

Provided that no person so committed or imprisoned under this section shall be liable to be prosecuted under sections 183, 186 or 188 of the Indian Penal Code, 1860 (Central Act No.45 of 1860) in respect of the same facts.

(3) Any person who unauthorisedly re-enters and occupies any land from which he was evicted under this section, shall be punished with imprisonment for a term which may extend upto six months or with fine upto rupees five thousand or with both.

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(4) Any order passed in revision under section 4B and subject to such order, the decision in appeal under section 4A and subject to the said orders in revision and appeal, any order passed under sub-section (1) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by any officer or authority or Government in pursuance of any power conferred by or under this Act.

(5) For the purposes of this section, where any assigned land is in possession of a person, other than the original assignee or his legal heir, it shall be presumed, until the contrary is proved, that there is a contravention of the provisions of sub-section (1) of section 3."

19. Section 4A of the Act provides for an appeal against the order passed

under Section 4 by the Mandal Revenue Officer (M.R.O.) to Revenue Divisional

Officer (R.D.O.).

20. The contention of the appellants was that they were also landless poor

persons and they were entitled for re-assignment of the subject matter land and the

respondent No.2 failed to initiate the said course of action under the Rules instead of

passing eviction order.

21. Basically, to pass an order under this Act for taking resumption of the

assigned land, it is necessary for the respondents to show that the land was assigned

to Krishnama Charyulu. No document was filed by the respondents to show that the

suit schedule property was assigned to Krishnama Charyulu. As per the written

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statement filed by the respondents, an extent of Ac.12-02 gts was assigned to Sri

Krishnama Charyulu prior to 1950-51. As such, the survey number had been sub-

divided into 1284/02 and a supplementary Sethwar was issued by the survey and land

record which was showing the name of the assignee, Krishnama Charyulu as land

holder. The said fact was admitted by the sons of late Krishnama Charyulu. As such,

the suit land was not a patta land as stated by the plaintiffs and relied upon Exs.B1

and B2 certified copies of Sethwar for the years 1954 and 1963. The contention of

the appellants-plaintiffs was that the suit land was the patta land of Krishnama

Charyulu and they filed khasra pahani of 1954-55 as Ex.A5 in support of their

contention.

22. As the plaintiffs were admittedly in possession of the suit schedule

property, heavy burden lies upon the respondents to dispossess them under valid

proceedings, but no proof was filed by the respondents to show that the suit schedule

was assigned to Krishnama Charyulu. Once the respondent authorities failed to prove

that the suit schedule property was an assigned land, the resumption order was bad in

law. The jurisdiction of civil court would be ousted only when the respondents

followed the procedure in accordance with law. When there is violation of principles

of natural justice, the civil court would have jurisdiction to entertain the matter. The

Hon'ble Apex Court in Harkishan Lal vs State of Jammu & Kashmir (1 supra)

held that:

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"10. In support of his submission, Shri Mehta has also relied on Shiv Kumar Chadha v.

Municipal Corpn. of Delhi [(1993) 3 SCC 161] in which a three-Judge Bench of this Court speaking through N.P. Singh, J., while examining the question of bar of civil courts' jurisdiction because of the provisions contained in Delhi Municipal Corporation Act, 1957, held that the order being nullity in the eye of law, the same amounted to "jurisdictional error" because of which civil courts' jurisdiction was not barred as the impugned order was outside the Act.

11. We may not labour much on this point because of the aforesaid legal proposition and also because of what was pointed out by a Constitution Bench in Dhulabhai v. State of M.P.[AIR 1969 SC 78] that exclusion of jurisdiction of civil court should not be readily inferred..."

23. The Hon'ble Apex Court by referring to the Constitutional Bench

judgment in Ram Swarup Vs. Shikar Chand 7 while considering the effect of

Section 3(4) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 opined

in paragraph 13 that the bar created by the aforesaid provision would not operate in

cases where the plea raised before the civil court goes to the root of the matter and

this would be so where the impugned order is a nullity.

24. The learned Government Pleader for Appeals contended that it was

the plaintiffs who filed the suit for declaration, as such, the burden lies upon the

plaintiffs but not upon the defendants and relied upon the judgments of the Hon'ble

AIR 1966 SC 893

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Apex Court in Union Of India & Ors Vs. Vasavi Co-Op. Housing Society &

Ors.(4 supra) and in R. Hanumaiah and Anr. Vs. Secretary to Government of

Karnataka Rev.Dept. and Ors.(5 supra). However, both these judgments are

pertaining to the suits for declaration of title, wherein the burden lies on the plaintiff

to make out and establish a clear case for granting such a declaration. However, the

present case is not a suit for declaration of title, but declaration of proceedings of the

M.R.O. issued in file No.B/2461/91 and order dated 02.12.1991 by defendant No.2 as

illegal. There is a difference between the suits filed for declaration of title and the

suits filed for declaration of proceedings issued by the revenue authorities as illegal.

As admittedly, the respondents were in possession of the suit schedule property,

heavy burden lies upon the respondents when they were ousting the plaintiffs from

the possession of the suit schedule property by virtue of the alleged proceedings.

Without even filing any document to show that the land was assigned to late

Krishnama Charyulu, the initiation of proceedings by the respondents is considered

as illegal, null and void. As such, the civil courts jurisdiction is considered as not

barred.

Substantial Question No.2:

Whether the suit lands are assigned lands or patta lands and whether the prohibition of alienation applies to the scheduled lands?

25. The plaintiffs failed to file the sale deeds in their favour, but filed

ROR proceedings marked under Ex.A4 and the certified copy of pahani for the year

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1990-91 marked under Ex.A2 to show that they were in possession of the suit

schedule property and that the M.R.O. had also entered their names in the revenue

records. Likewise, the respondents also failed to file any document to show that the

suit schedule property was an assigned land. No doubt that the Act was intended to

be retrospective.

26. This Court in Shaik Abdul Kalam Azad and Ors. Vs. A. Babu and

Ors. (2 supra) considering the similar aspect whether the Tahsildar had jurisdiction to

pass an order directing eviction of the petitioners observed that:

"54. So if the respondents insist that the provisions of the Act apply to the land, they ought to produce the assignment patta copy granted to Abdul Jaleel and satisfy the Court there was a condition prohibiting alienation therein. The failure of the respondents to produce the same thus justifies the drawing of adverse inference against them that if they produced the patta, it would not support their case.

55. It is difficult to believe that the Tahsildar had not perused the Patta granted to Abdul Jaleel before issuing the show cause notice dt.dt.2.12.2015 to the petitioners. I therefore hold that the action of respondents is mala fide and they have deliberately withheld the patta in order to grab the land of petitioners.

58. In A.P. State Electricity Board Employees union v. The Joint Collector, Chittoor (Order dt.14.9.2007 in W.P.19258 OF 1998), this court considered the definition of the term 'assigned land' in Sec.2 (1) of the Act and held:

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'A plain reading of the above definition shows that the land, which was assigned by the Government subject to the condition of non- alienation can only be treated as an assigned land for the purpose of Act 9 of 1977. As a natural corollary, the prohibition of transfer as contained under Section 3 of Act 9 of 1977 is attracted only in cases where the land is assigned subject to the condition of non- alienation. In the case on hand, the specific case of the petitioner is that the assignment in favour of K.Obulappa in the year 1933 was not subject to the condition of non-alienation. To substantiate the said plea, the learned counsel for the petitioner has relied upon the instructions issued by the Government of Andhra Pradesh in G.O.No.1142, Revenue Department, dated 18.06.1954, under which, the terms and conditions of assignment were promulgated by the State Government for the first time.

Clause 5 of G.O.No.1142, dated 18.06.1954, is as under:

The assignment of lands shall be subject to the following conditions:

'1) Lands assigned shall be heritable but not alienable.........'

It is submitted by the learned counsel for the petitioner that since the assignment in favour of K.Obulappa was made much prior to G.O.No.1142, dated 18.6.1954, the said assignment was not subject to the condition of non-alienation.

I find force in the submission of the learned counsel for the petitioner, since, admittedly, the condition that the land assigned shall not be alienable was not in force in the year 1933 when the assignment was made in favour of K.Obulappa.

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Nothing has been placed before this Court to show that the Order promulgated in G.O.Ms.No.1142 dated 18.4.1954 has retrospective application, muchless any material is produced to show that the 'D Form Patta' granted in favour of K. Obulappa contained such a condition. As a matter of fact, even the impugned order dated 12.6.1998 did not reflect that the second respondent had taken any steps to verify as to whether the assignment granted to K.Obulappa in the year 1933 contained any such condition prohibiting alienation.

Hence, the impugned order of cancellation of assignment is vitiated by non-application of mind to the relevant aspects and liable to be set aside on that ground alone.'

(emphasis supplied)

27. The Court had also referred to several earlier judgments on this aspect

wherein it was held that:

"59.In P.V.Rajendra Kumar v. Govt. of Andhra Pradesh [(2011) 3 ALD 571] it was held:

'The provisions of Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977(for short, "the Act") prohibit the transfer of assigned lands. The term 'assigned land' is defined by Section 2(1) of the Act to the effect that the lands assigned by the Government to the landless poor persons under the rules for the time being in force subject to the condition of non-alienation and includes lands allotted or transferred to landless poor persons under the relevant law for the time being in force relating to land ceilings.

Dr.GRR, J Sa_1260_2006

In order to attract the bar of registration, the land must be an assigned land within the above mentioned definition. Unless the patta under which the assignment is made contains a condition of non-alienability, such land cannot be treated as assigned land within the provisions of the Act.

It is not the pleaded case of the Respondents that the assignment made in favour of Neeruganti Yerranna prior to 1942 contained any condition of non-alienation.

The fact that several registered transactions were allowed to take place raises a presumption in favour of absence of such non- alienability.

For the first time, the Government by G.O. Ms. No. 1142, dated 18-6-1954, in respect of Andhra Area, introduced the condition of non- alienability of assigned lands and the assignments made there after invariably contained such a condition.

Inasmuch as the land was admittedly assigned prior to the year 1942 and in the absence of any record to show that such assignment contained the condition of non-alienability, it is not permissible for the Respondents to presume the existence of such a condition and refuse registration of the land.' (emphasis supplied)

60. In K.M. Kamallula Basha and others Vs. District Collector, Chittoor District, Chittor and others (2009 (3) ALD 385) also it has been held that conditions prohibiting alienation were incorporated by the State Government for the first time vide G.O.Ms.No.1142 dt.18-06-

1954 and that such a condition imposed under this G.O. cannot operate in respect of assignments made long prior thereto.

Dr.GRR, J Sa_1260_2006

61. In G.Satyanarayana v. Govt. of A.P (2014) 4 ALD 358), it was reiterated:

'The ratio that could be culled out from the slew of authorities of this Court is that assignments made prior to issue of G.O.Ms.1142, dt. 18-6-1954 in Andhra Area and that were made prior to issue of G.O.Ms. No. 1406, dt. 25-7-1958 in Telangana Area, did not contain prohibition on alienation that the assignees are entitled to exercise all the rights including transfer of lands; that the initial burden lies on the Government and its functionaries to show that the assignments contain a condition against alienation of the land and that unless the revenue functionaries are first satisfied that the land is an assigned land within the meaning of sub-section (1) of Section 2 of Act 9 of 1977, no proceeding for cancellation of assignment can be initiated.'

62. In Boya Ramappa v. Joint Collector and Ors (2017) 2 ALD 214), also it was reiterated that as per G.O.Ms.No.1142, dated 18.6.1954, nonalienation of assigned lands was introduced only in 1954; by virtue of the said G.O., the Government has introduced the condition of nonalienation of assigned lands;

and when once the assignment was made prior to that date initiation of proceedings under the Act of 1977 is without jurisdiction, as the provisions of the Act have no application in respect of lands assigned prior to 1954.

63. From the above decisions, it is clear that before 1954 there was no condition prohibiting alienation of assigned lands at all. No decision taking a different view was cited by the respondents before me."

Dr.GRR, J Sa_1260_2006

28. On considering the above judgments, the Court in Shaik Abdul

Kalam Azad and Ors. Vs. A. Babu and Ors. (2 supra) held that:

"65. The Tahsildar/4th respondent cannot confer jurisdiction on himself under the Act by wrongly presuming that the original assignment to Abdul Jaleel was subject to a condition prohibiting alienation (when there is no evidence in support of the same) and seek to evict the petitioners from the land on the said basis. Thus, he has acted totally without jurisdiction."

29. In the present case also, the respondents failed to produce any

document showing assignment of land in favour of Krishnma Charyulu and that it

contained a non-alienation clause. As the assignment alleged to have been made by

the respondents in favour of the Krishnama Charyulu was prior to 1950-51 which was

prior to issuance of G.O.Ms.No.1406, dt. 25-7-1958 in Telangana Area, which did not

contain any prohibition on alienation, the assignees are entitled to exercise all the

rights including transfer of lands. As per the judgment of this Court in G.

Satyanarayana Vs. Government of Andhra Pradesh 8, the initial burden lies on the

Government and its functionaries to show that the assignment contains a condition

against alienation of the land and that unless the revenue functionaries are first

satisfied that the land is an assigned land within the meaning of sub-section (1)

of Section 2 of Act 9 of 1977, no proceeding for cancellation of assignment can be

initiated.

2014 (4) ALD 358

Dr.GRR, J Sa_1260_2006

30. In view of the authoritative pronouncement of the above judgment,

the dismissal of the suit by the trial Court and confirmation of the same by the first

appellate Court is considered as perverse and against the provisions of the A.P.

Assigned Lands (POT) Act and in violation of the principles of natural justice.

31. In the result, the second appeal is allowed setting aside the judgment

and decree dated 28.07.2006 passed in A.S.No.62 of 1999 by the V Additional

District and Sessions Judge (FTC), Mahabubnagar, confirming the judgment and

decree dated 25.03.1997 passed in O.S.No.169 of 1991 by the District Munsiff,

Kalwakurthy, declaring the proceedings in file No.B/2461/91 and order dated

02.12.1991 passed by the defendant No.2 (Mandal Revenue Officer, Amangal) as

illegal and invalid. No order as to costs.

As a sequel, miscellaneous applications pending this appeal, if any, shall

stand closed.

____________________ Dr. G. RADHA RANI, J

Date: 27-12-2023 ss