Smt. Gaddam Kavamma v. The Joint Collector,

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO WRIT PETITION No.18340 of 2012 O R D E R:

Heard counsel for the petitioner, the Government Pleader for Assignment appearing for respondents 1 and 2 and Sri O.Manohar Reddy, Counsel appearing for respondents 3 to 5.

2. In this Writ Petition, the petitioner has assailed order in case No.D.Dis.No.(E5) 4803/2011 dt.29.12.2011 passed by the 1st respondent, setting aside the order dt.25.07.2011 in Rc.No.1285 of 2011 passed by the 2nd respondent partly.

3. Petitioner is wife of one Venkaiah @ Venka Reddy R/o Kavali village and Mandal. One Laxmaiah was the elder brother of said Venkaiah. On 28.01.1981 both Venkaiah and Laxmaiah were allotted an extent of Acre 1-84 cents (Ac.0-95 cents in Sy.No.869/1 and Ac.0-89 cents in Sy.No.870/5) and Acre 1-80 cents (Ac.0-75 cents in Sy.No.869/2 and Ac.1-05 cents in Sy.No.870/6) respectively.

4. The said Laxmaiah died without any legal heirs and it is not disputed that he had no children and his wife deserted him. Subsequently, Venkaiah also died.

5. It is a matter on record that an extent of Acres 3.56 cents in survey Nos.869/2, 870/6, 869/1 and 870/5 which had been assigned to Laxmaiah and Venkaiah had been alienated by them contrary to the provisions of A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (for short 'the Act') to one Bezawada Joseph Prasad under registered sale deed dt.19.02.1991.

6. Petitioner claims that she had no knowledge of the said alienation and that the sons of said Bezawada Joseph Prasad (respondents 3 and 4) had occupied the said lands. She therefore filed an application on 05.04.2011 to the 2nd respondent to evict the respondents 3 and 4 and restore possession of assigned lands to her stating that she is the successor of both her husband Venkaiah and his brother Laxmaiah for the said land.

7. Notices were issued by the 2nd respondent to respondents 3 to 5.

8. The 3rd respondent contended before the 2nd respondent that he is an educated unemployed person, that he is eking out his livelihood by doing agriculture, that his father Joseph Prasad worked in Electricity Department and retired in 1985 and his younger brother, the 4th respondent is working in a private office and the 5th respondent, who is wife of Bezawada Joseph Prasad is a house wife. He contended that Bezawada Joseph Prasad purchased the land in 1991 and obtained Pattadar Passbook and Title Deed also and at the time of purchase of the land Venkaiah and Laxmaiah had told his father that the lands were not assigned lands.

9. The 2nd respondent then referred the matter to the Tahsildar, Kavali to conduct an enquiry and furnish a report.

10. The Tahsildar, Kavali submitted report on 02.06.2011 stating that an extent of land of Acre 1-80 cents has been assigned to Venkaiah and Acre 1-84 cents had been assigned to Laxmaiah in 1981 under DKT Pattas, but the said lands are under the

occupation and possession of 3rd respondent.

11. On the basis of the said report and in view of Section 3(1) of the Act, (which prohibited transfer of assigned lands granted to landless poor persons by way of sale and it also declared that no right or title in such assigned lands shall vest in any person acquiring the land by such transfer and such transaction is deemed to have never taken place), the 2nd respondent held that transfer of the land in possession of 3rd respondent is hit by the provisions of the Act and directed the Tahsildar, Kavali to restore the land to the original assignee or his successors keeping in view of the provisions of the Act.

12. Challenging the same, an Appeal under Section 4(1)(2) of the Act was filed before the 1st respondent-Joint Collector, Nellore District by respondents 3 to 5. The same was numbered as Case No.D.Dis.(E5)4803/2011.

13. In the said appeal, respondents 3 to 5 contended that they had no knowledge that the lands purchased by their father - Bezawada Joseph Prasad were assigned lands, that they had brought the land under cultivation by spending huge amounts and obtained Pattadar Passbook and Title Deeds, and that the 2nd respondent instead of dismissing the application of the petitioner, came to the wrong conclusion and passed the order restoring the lands to her.

14. The petitioner contended before the 1st respondent that her husband and his brother were both granted DKT pattas; Laxmaiah's wife deserted him after their marriage and he had no children and he resided with them till his death; and that on the

date of Laxmaiah, Venkaiah became his successor and after the death of Venkaiah, the petitioner succeeded to their property. She contended that respondents 3 to 5 are encroachers and the appeal filed by them before the 1st respondent shall be dismissed.

15. The 1st respondent held that on 25.01.1981, the petitioner's husband - Venkaiah has been assigned Acre 1-85 cents in Sy.Nos.869/1 and 870/5 of Budamgunta Village and on his death the petitioner would be the legal heir and therefore this extent of land should be restored to her as per the order passed by the 2nd respondent. Coming to the extent of Acre 1-80 cents in Sy.Nos.869/2 and 870/6 which had been assigned to Laxmaiah on the same date, the 1st respondent noted that Laxmaiah had been deserted by his wife and he had no children. He held that the petitioner cannot be said to be the legal heir of Laxmaiah and so the said land should be resumed to the Government.

16. Assailing the same, this Writ Petition is filed insofar as the 1st respondent had denied restoration of Acre 1-80 cents of land in survey No.869/2 and 870/6 to the petitioner and resumed it to the Government.

17. Counsel for the petitioner contends that under Section 4(1) (b) of the Act, if any land, which had been assigned, had been transferred in contravention of sub-Section (1) of Section (3) of the Act, the competent authority should restore the land to the original assignee or his legal heirs and the finding of the 1st respondent that she is not the legal heir to the property assigned to Laxmaiah, is not correct.

18. The Government Pleader for Assignment appearing for

respondents 1 and 2 however supported the order of the 1st respondent.

19. From the facts on record, it is not in dispute that Laxmaiah was the elder brother of Venkaiah, who was the husband of the petitioner, that Laxmaiah's wife had deserted him and he had no children. It is also not disputed that Laxmaiah predeceased Venkaiah. Therefore any rights or assets of Laxmaiah would devolve on Venkaiah, his brother as per the Hindu Succession Act, 1956. Subsequently on the death of Venkaiah, all the assets and rights of Venkaiah (and of his brother Laxmaiah which had devolved on Venkaiah during his life time), would devolve on the petitioner, who is the widow of Venkaiah. Therefore, the 1st respondent is not correct in stating that the petitioner is not entitled to the lands, which had been assigned to Laxmaiah.

20. Sri O.Manohar Reddy, Counsel for the respondents 3 to 5 contends that respondents 3 to 5 are also landless poor persons and therefore the 1st respondent ought not to have directed resumption of Acre 1-84 cents land which had been assigned to Laxmaiah to the Government. He also sought to contend that the order of the 1st respondent insofar as 1st respondent directed restoration of Acre 1-80 cents of land to the original assignee or his legal heir, which had been assigned to Venkaiah and which had been alienated by Venkaiah to the 3rd respondent's father, cannot be sustained and the said land should also be allowed to be retained by respondents 3 to 5.

21. I am unable to agree with both these contentions. First, insofar as the 1st respondent had directed Acre 1-80 cents of land

in Sy.Nos.869/2 and 870/6 of Venkaiah to be restored to the petitioner, the respondents 3 to 5 have not assailed it by way of a Writ Petition. Therefore it is not open to them in a Writ Petition filed by the petitioner to seek restoration of the said land. Also the respondents 3 to 5 have nowhere pleaded that they are 'landless poor persons' in their submissions before respondents 2 and 1. Therefore, it is also not open to them to now contend that they should be allowed to retain the land of an extent of Acre 1-84 cents which had been assigned to Laxmaiah. Although counsel for respondents 3 to 5 had relied upon a judgment of this Court in P.Narasimha Rao v. Government of Andhra Pradesh, rep.

by its Principal Secretary, Revenue Department and Others[1] and contended that it was incumbent on the respondents 1 and 2 to consider whether the respondents 3 to 5 are also eligible landless poor persons, I am of the opinion that the said decision cannot be relied upon by the petitioner, since, in that case, there was a specific pleading by the purchasers, who were arrayed as respondents 5 and 6, that they belong to Scheduled Caste Community and they are also landless poor persons and are eligible for assignment under BSO(15) Para 10. In the present case, there is no such pleading. Therefore, the said decision is inapplicable.

22. For the aforesaid reasons, the Writ Petition is allowed; the order dt.29.12.2011 in Case No.Dis.No.(E5)4803/2011 of the 1st respondent insofar as the 1st respondent directed restoration of Acre 1-84 cents of land in Sy.No.869/2 and 870/6 of Budamgunta Village, Kavali Mandal, Nellore District is set aside; and respondents 1 and 2 are directed to restore possession of the said land also to the petitioner under Section 4(1)(b) of the Act. This

exercise shall be completed within two (02) months from the date of receipt of a copy of this order. There shall be no order as to costs.

23. Consequently, miscellaneous petitions pending, if any, shall stand dismissed.

_____________________________ M.S.RAMACHANDRA RAO, J 01st July, 2016 gra [1] 2014(2) ALT 717