IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE NINETEENTH DAY OF JANUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE P.SWAROOP REDDY SECOND APPEAL NO : 371 of 1995 (Appeal under Section 100 of CPC against the decree dated 11/08/1989 in OS No. 14 of 1982 on the file of the Court of JUNIOR CIVIL JUDGE COURT, KODANGAL preferred against the decree dated 26/04/1995 in AS No. 27 of 1989 on the file of the court of I Additional District Judge, Mahaboobnagar) Between: 1 Konati Mallappa S/o. Yellappa R/o. Angadi Raichur village, Kodangal Talukam Mahabubnagar District. 2 Konati Basappa S/o. Sayanna R/o. Angadi Raichur village, Kodangal Talukam Mahabubnagar District. ..... APPELLANT(S) AND Subhan Reddy S/o. Papi Reddy R/o Angadi Raichur Village, Kodangal Taluk, Mahabubnagar District. .....RESPONDENT Counsel for the Appellant:MR.N.ASHOK KUMAR Counsel for the Respondent : MR.N.VASUDEVA REDDY FOR RR2,R4,R5,R6 The Court Delivered the Following JUDGEMENT:-- PSR, J. S.A.No. 371 of 1995 J u d g m e n t: This second appeal is filed against the judgment of the learned Additional District Judge, Mahabubnagar in A.S.No. 27 of 1989, which was filed aggrieved by the judgment of the learned District Munsif, Kondangal in O.S.No. 14 of 1982. The parties herein would be referred to as they are arrayed before the trial court. 2. The relevant facts are as follows: The plaintiff was the owner of Ac.3.00 of land in Sy.No.124 known as Nagamma Chenu situated at Angadi Raichur village of Kondangal Taluka, Mahabubnagar District (hereinafter referred to as the suit schedule property). He agreed to sell the above land to the defendants by an agreement of sale dated:1.1.1967 for an amount of Rs.1600.00 and received an amount of Rs.1,300.00 on the same day itself and delivered possession of the land to the defendants. The agreement of sale was subject to the condition of obtaining permission from the Tahsildar under section 47 of the Andhra Pradesh (Telangana Area) Agricultural Lands Act, 1950 (for short “the Act”) and with the consent of the plaintiff’s wife and sons. Later, the defendants paid the balance consideration of Rs.300.00 also. The Plaintiff filed his declaration under the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 declaring that he has entered into an agreement of sale, for sale of the suit schedule property in favour of the defendants; but the Land Reforms Tribunal did not accept the said transaction; included the suit schedule property in the holding of the plaintiff and that finding was confirmed by the Land Reforms Appellate Tribunal. According to the plaintiff, the defendants suspecting the validity of the sale transaction asked the plaintiff to revoke the agreement of sale and take back possession of the suit schedule property by repaying the sale consideration. The plaintiff agreed for the same and paid back the amount of Rs.1,600-00 to the defendants on 28.9.1976 and the defendants delivered back possession of the land to the plaintiff and returned his agreement of sale and they have also entered into an agreement admitting the facts of revocation of the contract of sale and receiving the sale consideration and delivering back possession of the suit schedule property on 28.9.1976. Since then, according to the plaintiff, the defendants lost all their rights over the suit schedule property and the plaintiff has been in actual possession of the property, till the defendants caused service of a temporary injunction restraining the plaintiff from interfering with the land by filing O.S.No. 38 of 1978 before the learned District Munsif, Kodangal. O.S.No. 38 of 1978 was decreed against the present plaintiff which was confirmed in the appeal – A.S.No. 62 of 1979 by the learned Additional Judge, Mahabubnagar. The Second appeal – S.A.No. 955 of 1981 filed against the judgment in A.S.No. 62 of 1979 is pending and in the meanwhile the present suit was filed for recovery of possession. 3. Defendant Nos. 1 and 2 filed their written statement contending that the plaintiff agreed to sell the suit schedule property, obtained entire sale consideration and put them in possession of the same by executing document dated:1.1.1967. It is submitted that the plaintiff filed a declaration before the Land Reforms Tribunal showing the sale transaction. But the Land Reforms Tribunal did not accept the sale, which finding was confirmed by the Land Reforms Appellate Tribunal; but this finding would not have any bearing on the sale transaction. The defendants filed O.S.No. 38 of 1977 before the learned District Munsif, Kodangal for perpetual injunction, where also the present plaintiff raised the plea of revocation of sale and paying back the entire sale consideration to the defendants and of the defendants executing another document accepting the same and the suit O.S.No. 38 of 1977 was decreed on 30.4.1979. Aggrieved by the same, the present plaintiff filed A.S.No. 62 of 1979, which was dismissed on 5.3.1981 and against it S.A.No. 955 of 1981 which is pending. 4. It is further submitted that aggrieved by the Judgment of the Land Reforms Appellate Tribunal, the present plaintiff filed a writ petition before the Hon’ble High Court; as such the plaintiff is not entitled to file a suit for title and possession. The defendants are entitled to retain possession over the suit schedule property under section 53-A of the Transfer of Property Act. The defendants being in possession of the suit schedule property since 1.1.1967 are asserting their possession and denying that the plaintiff had perfected his title to the suit land by prescription and adverse possession. The plaintiff has never been in possession of the suit land within 12 years next before the date of institution of the suit. 5. On the basis of the above pleadings the following issues and additional issues were framed by the trial court. i) Whether the plaintiff is entitled to the relief of declaration of title in the suit land as prayed for? ii) Whether the plaintiff is entitled to the relief of possession of the suit land as prayed for? iii) To what relief? Additional issue No. 1 dated:7.8.1987: i) Whether the defendants have perfected their title over the suit land by adverse possession and prescription? Additional Issue dated:29.2.1988: i) Whether the defendant No.3 is mad and the instant suit is tenable without defendant No.3 being represented by court guardian? Additional Issue dated:10.3.1980 i) Whether the defendants revoked the agreement of sale by executing a deed date:28.9.1977 and redelivered the possession of the suit land to the plaintiff? 6. On behalf of the plaintiff PWs 1 to 5 were examined and on behalf of the Defendants DWs 1 to 4 were examined. Exs A-1 to A-6 and Exs B-1 to B-8 were also marked. 7. By considering the entire material on record, the learned District Munsif decreed the suit and the same was confirmed by the learned first appellate court. 8. It is pertinent to mention herein itself, that S.A.No. 955 of 1981 was allowed by this Court by judgment date:27-01-1987 holding that: “In this case no suit for specific performance has been filed by the respondents. Though they are in possession pursuant to the agreement of sale Ex A-1, but since no prior permission under section 47 of the Act has been obtained, their possession is unlawful. Under those circumstances, the doctrine of part performance is not available. Therefore, I have no hesitation to hold that the suit for mere injunction is not maintainable. The Courts below have not considered this question in proper perspective. This being a substantial question of law arising in this second appeal, the second appeal is accordingly allowed and the suit is dismissed.” 9. In fact, the present second appeal – S.A.No. 371 of 1995 was disposed of by this Court on 21.11.2006 dismissing the second appeal, after the death of the sole respondent. There after the appellants filed the following three miscellaneous petitions on 24.3.2009. S.No. CMP No. Prayer 1 730/2009 To condone the delay of 1702 days in filing the set aside the abetment petition. 2 731/2009 To set aside the abetment caused on 24.02.2004 due to death of the sole respondent in SA.No.371 of 1995. 3 732/2009 To bring: 1. Gopal Reddy s/o Late Suban Reddy; 2. Narasimha rEddy s/o late Suban Reddy 3. Smt. M. Prameela w/o M. Jayaram Reddy 4. Smt. S. Shakuntala w/o Laxmi Reddy; 5. Smt Yellamma w/o late Suban Reddy As LRS of Respondent No.1 who died on 24.02.2004. Contending that during the pendency of the present second appeal, the first respondent died on 24.2.2004, leaving behind respondent Nos. 2 to 6 as his legal heirs. (But that fact was not brought to the notice of the court and as such the appeal was disposed of on 21.11.2006). However, now, considering the circumstances, above three C.M.P.Nos. 730; 731 and 732 of 2002 allowed and the present second appeal is disposed of by bringing the legal representatives of the sole respondent as Respondent Nos.2 to 6, as they are represented by their counsel, Sri N. Vasudeva Reddy. 10. Now, the point that arises for consideration is whether there are any grounds for allowing the second appeal? 11. The fact of there being an agreement of sale dated:1.1.1967 between the parties for sale of the suit schedule property, subject to the condition of obtaining permission under section 47 of the Act is not in dispute and such permission being not granted is also not in dispute. The question - whether there was any re-conveyance of the property in favour of the plaintiff vide Ex A-1, under document dated:28-9-1976 is also raised; but in the circumstances of the case, where in the absence of permission under section 47 of the Act, the original transaction itself is not valid, the question of re- conveyance under document dated:28.9.1976 is not that important. 12. As already referred, this court vide judgment in S.A.No. 955 of 1985, in the suit filed by the present appellant held that “since no prior permission under section 47 of the Act has been obtained, their possession is unlawful”. Thus, the question that on account of want of permission under section 47 of the Act, the transaction is not valid has been upheld by this court, in S.A.No. 955 of 1981 and that has become final. If that question goes, no substantial question of law arises for consideration in this second appeal and even for that reason this second appeal is liable to be dismissed. 13. The learned counsel for the appellants had also relied on certain decisions; but in view of the earlier finding of this court in S.A.No.955 of 1982 with regard to the granting of permission by the Tahsildar under section 47 of the Act, they are not relevant. 14. The learned counsel for the appellants also tried to raise some technical pleas, which are not raised in the grounds of appeal, which have no substance. As this is the second round of litigation, as the first round ended with the dismissal of S.A.No. 955 of 1981, where the present appellants failed and the fate of this case, was, in fact, sealed on account of the finding that “since no prior permission under section 47 of the Act has been obtained, their possession is unlawful.” The other questions raised, including the plea of adverse possession are of no consequence. Further the record reveals that the defendants were put in possession after the injunction order in suit O.S.No. 38 of 1977 was passed. Thus the question of adverse possession also becomes a question of fact, as there is dispute as to since when the defendants are in possession of the land. 15. In the result, the second appeal fails and it is accordingly dismissed. In the circumstances, the parties are directed to bear their own costs. _______________________ P. SWAROOP REDDY, J. January 19, 2010. *BVS Note: As CMP.Nos. 730, 731 and 732 of 2009 are allowed, the Registry is directed to amend the cause title suitably, before issuing the certified copy. (BO) BVS.