IN THE HIGH COURT OF JUDICIATURE, ANDHRA PRADESH, AT
HYDERABAD
HON’BLE SRI JUSTICE A. GOPAL REDDY
SECOND APPEAL No.964 of 2010
Dated: 01-10-2010
Between:
Tadepalli Rama Rao
…Appellant
AND
Ganiwada Satyanarayana Murthy
Respondent
This Court made the following:
JUDGMENT:
Unsuccessful
plaintiff before the Courts below filed this second appeal aggrieved by the
judgment and decree passed by VI Additional District
Judge (Fast Track Court), East Godavari at Rajahmundry dismissing A.S.No.86 of
2004, dated 27.12.2007 and confirming the judgment and decree, dated 15.4.2004
passed by the Additional Senior Civil Judge, Rajahmundry in dismissing O.S.No.180
of 1997 filed for declaration of plaintiff’s title over the plaint schedule
property, for recovery of possession of house property and for future profits.
For
the sake of convenience, the parties hereinafter will be referred to as per
their array before the trial Court.
The
plaintiff instituted the above suit for declaration of his title over the suit
schedule property i.e. the house property in an extent of 72 sq.yds. contending
that originally the property belonged to one Ganiwada Surnarayana Murthy, the
father of the defendant. That the said Ganiwada
Suryanarayana Murthy obtained a patta from the stage Government in the year
1976 for an extent of three cents of house site in RS.Nos.253 and 254 on Gandhi
Prakasa nagaram Panchayat area and the plot No.682, and constructed two
thatched portioned house. By that time, the defendant was residing in the Southern
side portion of the said house, while his father Ganiwada Suryanarayana Murthy
lived in the Northern portion of the said house along with Smt. Marisetti
Atchayamma, who is no other than the sister of the defendant. Said
Ganiwada Suryanarayana Murthy to meet his family expenses sold away the
Northern portion of the said thatched house to the plaintiff on 30.6.1981 and
since then the plaintiff has been in possession and enjoyment of the same by
paying the municipal taxes. When the plaintiff was
making attempts to lease out the said portion, Marisetty Atchayamma, the elder
sister of the defendant, who is no other than the mother-in-law of the
plaintiff requested the plaintiff to allow them to live in the said house and
that the plaintiff allowed her to live in the plaint schedule house purchased
by him. While so, after the death of Ganiwada Suryanarayana
Murthy, the defendant with an evil intention to grab the plaint schedule house
property filed a suit in O.S.No.256 of 1991 and obtained ex parte decree and
got possession of the property. Later, the defendant filed
another suit in O.S.No.109 of 1996 on the file of I Additional District Munsif
Court, Rajahmundry for cancellation of sale deed, dated 30.6.1981 and that the
same is being contested by the plaintiff. Hence
the suit for declaration and recovery of possession from the defendant. Contesting
the said suit, the defendant filed a written statement contending that said
Suryanarayana Murthy alone lived in the said portion till his death in 1990 and
no other person was ever in possession of the same in any capacity. The
house was put up on the site of assigned pata which is hit by Act 9 of 1977 and
the same could not be alienated. The plaintiff cannot lay
any claim under invalid sale deed, dated 30.6.1981. Even
if the plaintiff relies on the so called sale covered by sale deed, dated
30.6.1981, he being not in possession at any time, and the defendant and his
family being in possession for all these years, it must be deemed that the
defendant has perfected his title by adverse possession. Since
the plaintiff brought into existence the fraudulent and invalid sale deed,
dated 30.6.1981, this defendant had to file a suit in O.S.No.109 of 1996 on the
file of I Additional District Munsif Court,
Rajahmundry.
The
trial Court framed necessary issues for trial. After
evaluating the evidence, oral and documentary, the trial Court found that even
the plaintiff did not deny the fact that the subject-land is the assigned land,
that even as per the contention of the plaintiff also, it is an assigned land
given patta to the father of the defendant by the Government and therefore, in
view of the prohibition contained under Act 9 of 1977, he will not derive any
title to the suit schedule property and accordingly dismissed the suit. On
appeal being filed by the plaintiff, the lower appellate Court confirmed the
judgment and decree of the trial Court while dismissing the appeal. Hence
the present appeal by the plaintiff.
The
facts pleaded depict that the house was put up on the site granted by the State
Government, which is prohibited from alienation in view of the provisions of
A.P. Assigned Lands (Prohibition of Transfers) Act, 1977. It is
not disputed that patta was granted by Government in respect of the said site
in favour of G.Suryanarayana Murthy and that P.W.1-plaintiff purchased the same
under Ex.A.1 sale deed for a consideration of Rs.3,000/- on 30.6.1981. Section
3 of the said Act declares any sale of the assigned land in contravention of
the terms as null and void. P.W.1-plaintiff has not
pleaded that he is a bona fide purchaser, that he is a landless poor person and
protected under sub-section (5) of Section 3 of A.P. Assigned Lands (Prohibition
of Transfers) Act, 1977, and that he has purchased the land in good faith from
the original owner prior to the commencement of the Act. In the
absence of any such evidence, the plaintiff cannot succeed in obtaining a
decree for declaration of his title over the plaint schedule property under
Ex.A.1-sale deed, which is null and void as per the legislative mandate under
Section 3 of the A.P. Assigned Lands (Prohibition of Transfers) Act,
1977. The concurrent findings of facts reached by the Courts below,
on appreciation of the oral and documentary evidence in proper perspective, do
not give rise to any question of law much less substantial question of law to
admit the second appeal.
The
Second Appeal fails and the same is accordingly dismissed at the stage of
admission. No order as to costs.
________________
A.
GOPAL REDDY, J.
OCTOBER 01, 2010
Tsr.
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