IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTEENTH DAY OF JUNE TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.283 of 2006 Between: Koruprolu Appalanaidu and others .. Petitioners AND Kottapalli Apparao and others .. Respondents JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.149 of 2004 on the file of IX Additional District and Sessions Judge-cum-Fast Track Court, Visakhapatnam, dated 30-07-2005. The factual background for the second appeal is that O.S.No.15 of 2003 was filed by the appellants herein in the Court of Senior Civil Judge, Yelamanchili, to declare that they are absolute owners of the plaint schedule property and to grant a permanent injunction against the defendants and their men from interfering with their possession. They claimed to have purchased the property under a registered sale deed dated 19-08-1971 from the 1st defendant and to have made the land fit for cultivation at huge expense and trouble. They stated that defendants 1 to 4 attempted to interfere with their possession on which they filed O.S.No.66 of 1997 on the file of the Court of Principal Junior Civil Judge, Yelamanchili. It is also stated that the plaintiffs filed O.S.No.92 of 1997 against defendants 5 and 6 herein in the same Court for a permanent injunction concerning the same property and later withdrew that suit in order to file this comprehensive suit. The plaintiffs further claimed that their right to possession of the property is protected under Section 3 (5) of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act (Act 9 of 1977). The defendants 1 to 4 contested the suit contending the purchase to be vitiated by violation of Section 8 of the Hindu Minority and Guardianship Act due to the minor share holders being not parties to the same and further vitiated as the land was a Government land assigned to the grandfather of the 4th defendant. It is also contended that the 1st and 3rd plaintiffs working as a Senior Assistant and a Supervisor with a monthly salary of Rs.5,000/- each are not landless poor, while the 2nd and 4th plaintiffs also owned Ac.5.55 cents and Ac.5.25 cents of land respectively making them not landless poor. The defendants 5 and 6 contested the suit contending that the sale deed in favour of the plaintiffs dated 19-08-1971 is a void document in violation of the original assignment by the Government and hence, the Government has a right to resume the assigned land and make a reassignment of the same. They also contended that the plaintiffs are not landless poor and that the provisions of Section 80 of the Code of Civil Procedure were not complied with. On such pleadings, the trial Court framed the issues about the absolute ownership of the property with the plaintiffs, their right to purchase the property bona fide, the validity and operability of the sale deed in their favour, compliance with Section 80 CPC and the relief to which the plaintiffs are entitled. During trial, PWs.1 and 2 and DWs.1 and 2 were examined and Exs.A.1 to A.14 and B.1 to B.9 were marked. The trial Court in its judgment dated 23-04-2004 found that the purchase of the subject property by the plaintiffs under Ex.A.1 sale deed for due consideration is true and though the plaintiffs 1 and 3 are employees and the plaintiffs 2 and 4 owned lands, the evidence did not establish the plaintiffs 1 and 3 to be having annual income of more than Rs.1,800/- or plaintiffs 2 and 4 to be having land of more than 5 acres, due to which they have to be considered as landless poor persons within the meaning of G.O.Ms.No.1407, Revenue, dated 25-07-1958 and have to be further consequently considered as entitled to the protection under Section 3 (5) of the A.P. Assigned Lands (Prohibition of Transfers) Act 1977. The trial Court also concluded that the 1st defendant sold the lands for consideration to plaintiffs 1 to 4, who are bona fide purchasers and the trial Court further rejected the plea of Ex.A.1 sale deed being vitiated by violation of Sections 8 and 11 of the Hindu Minority and Guardianship Act as it considered the property to be the personal property of the 4th defendant. It, therefore, answered the relevant issues in favour of the plaintiffs including the issue about the compliance with Section 80 of the Code of Civil Procedure. However, in the light of the decision of this Court in P. Venkataramana v. District Collector, Visakhapatnam (2003 (6) ALD 1), the trial Court concluded the subject land to be continuing to be assigned land, the title to which is always with the Government preventing the plaintiffs from claiming absolute ownership of the property. Therefore, it expressed its inability to declare the plaintiffs as absolute owners of the suit property and dismissed the suit without costs. In A.S.No.149 of 2004 filed against the said judgment and decree, the first appellate Court rendered its judgment on 30-07- 2005 referring to the definition of a landless poor person under Section 2 (3) of the A.P. Act 9 of 1977 and opining that the plaintiffs 1 and 3, working as a Lower Division Clerk and a Supervisor by the time of purchase in 1971 or at least prior to A.P. Act 9 of 1977 coming into force, cannot claim to be landless poor persons as they admittedly have other means of livelihood. Though the first appellate Court did not disturb the findings of the trial Court about the plaintiffs 2 and 4, it considered the purchase of the land under Ex.A.1 sale deed to be inseparable and indivisible, due to which the protection of sub-section 5 of Section 3 of the A.P. Act 9 of 1977 cannot be extended to any plaintiff. The first appellate Court also concurred with the trial Court regarding the applicability of the decision reported in P. Venkataramana v. District Collector, Visakhapatnam (2003 (6) ALD 1), which disentitles the plaintiffs from getting their title declared. The first appellate Court also concluded that there could have been no perfection of title by adverse possession by the plaintiffs against defendants 5 and 6 and the existence of permanent injunction in favour of the plaintiffs against defendants 1 to 4 in O.S.No.66 of 1997 was also noted, which is no way inconsistent with the dismissal of the suit. Consequently, the appeal was dismissed subject to the modification about the finding on the status of the plaintiffs. The appellants contend herein that the exercise of the powers under Order 41 Rule 37 of the Code of Civil Procedure by the first appellate Court was incorrect and the finding that the transaction is inseparable and the plaintiffs are not entitled to the protection of Section 3 (5) of the A.P. Act 9 of 1977 is incorrect. Sri K. V. Subramanya Narusu, learned counsel for the appellants and Sri K. Subramanyam, learned counsel for the respondents 1 to 4 are heard. The following points for consideration arise on the substantial question of law framed at the time of admission, namely, - Whether the observations of the learned IX Additional District and Sessions Judge in para-8 at page 7 of his judgment, that, the plaintiffs are not entitled to claim exemption under Section 3 (5) of Act 9 of 1977, in view of inseparability of Ex.A.1 is legally sustainable? -- 1) Whether the appellants are entitled to the protection of Section 3 (5) of the A.P. Act 9 of 1977? 2) Whether the appellants are entitled to have their title declared against defendants 5 and 6? 3) To what relief? Point No.1: Under the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act 1977 (A.P. Act 9 of 1977), any transfer of an assigned land in violation of the prohibition under Section 3 was declared null and void and an exception was carved out by sub- section 5 in respect of any purchase of an assigned land by a landless poor person in good faith and for valuable consideration prior to the commencement of the Act, which land continues to be in possession of such landless poor person as under cultivation or as a house-site by the time of the Act. Who is a landless poor person for the purpose of the Act is defined by clause (3) of Section 2 with reference to the extent of the land owned by such person and also with reference to having no other means of livelihood. The admitted facts of this case are that the plaintiffs 1 and 3 were employees during the relevant period and obviously they had other means of livelihood. The definition clearly shows that the question of the extent of wet or dry land owned by a person becomes irrelevant, if such person has other means of livelihood, and therefore, it cannot be in dispute that the plaintiffs 1 and 3 cannot be claimed to be landless poor persons in order to claim the protection of sub-section 5 of Section 3. Even transfers of assigned lands, which took place prior to the coming into force of the Act, are governed by the provisions of the Act has been decided by a Full Bench of this Court in Dharma Reddy v. Sub- Collector, Bodhan[1] and the decision, which still holds the field, makes any consideration of the antecedent purchases prior to 1977 being not subject to the provisions of the Act untenable. While it is true that the plaintiffs 2 and 4 are described throughout to be cultivators or agriculturists, there is no clear evidence on record about the extent of the land owned or possessed or cultivated by them during the relevant times. Irrespective of their having no other occupation or means of livelihood except agriculture, they will be entitled to be called as landless poor persons only when they owned less than the prescribed extent of the land under clause 3 of Section 2. If the plaintiffs 2 and 4 desired to be entitled to the benefit of sub-section 5 of Section 3, the burden of proving that they are landless poor persons holding less than the prescribed extent of land is on them and the said burden does not appear to have been clinchingly discharged. If so, it has to be concluded that any entitlement to the benefit of sub-section 5 of Section 3 is not proved by the plaintiffs. The question of severability or otherwise of the purchase, hence, becomes superfluous and unnecessary. Point No.2: It was held in P. Venkataramana v. District Collector, Visakhapatnam (2003 (6) ALD 1) that even if the purchase of assigned land from the original assignee is governed by sub- section 5 of Section 3, the purchaser being a landless poor person, still that land does not cease to be assigned land under the Act and such purchaser cannot claim absolute right of alienation over the said land. The learned Judge, after an elaborate discussion of the relevant precedents, had laid down that a landless poor person, who purchased the land, cannot by reason of the benefit of sub-section 5 of Section 3 transfer the property for any other purpose. The relief claimed by the plaintiffs herein in the suit is declaration of absolute ownership and when it is not in dispute that the above precedent continues to hold the field, such declaration of absolute ownership could not have been granted to the plaintiffs irrespective of the proof of the status of plaintiffs 2 and 4. While it should be noted that in respect of plaintiffs 1 and 3 proved to be not landless poor persons, in any view, they will not be entitled to any reliefs claimed in the suit, in respect of plaintiffs 2 and 4 also even assuming that the rights to the property in respect of plaintiffs 2 and 4 are separable, still they cannot claim any declaration of title against defendants 5 and 6, as the land continues to be impressed with the nature of an assigned land. Point No.3: The learned counsel for the appellants referred to E. Karunakar Reddy v. Mandal Revenue Officer, Tirupathi Rural Mandal and another[2], Narapareddy Bujjamma v. District Collector, Nellore, Nellore District and others[3] to show the permissibility of the sale of assigned lands in favour of landless poor persons. But the question herein is not about the entitlement of a landless poor person to purchase an assigned land, but whether the plaintiffs are landless poor persons at all. The learned counsel also referred to Rameshwar Prasad and others v. Shambehari Lal Jagannath and another[4] and Bolin Chetia v. Jogadish Bhuyan and others[5] with reference to the powers of the appellate Court under Order 41 Rule 33 of the Code of Civil Procedure, but any discussion about the scope of such power of Appellate Court becomes superfluous in view of the findings of fact arrived at by the trial and first appellate Courts and in view of the inevitable legal consequences that follow from such status of the plaintiffs vis-à-vis the subject land, which is an assigned land. Therefore, the second appeal has to fail for the above reasons, but in the facts and circumstances of the case, the second appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 17-06-2010 Ksn [1] AIR 1987 AP 160 [2] 2001 (1) ALT 400 [3] 2005 (6) ALD 127 [4] AIR 1963 SC 1901 [5] AIR 2005 SC 1872