IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD FRIDAY THE ELEVENTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 3 2 5 OF 2004 Between: Gorrela Lagumakkagari Anjappa … Appellant V/s. Gorrela Langamakkagari Narsimhulu & 2-Ors. … Respondents Counsel for the Appellant : Sri SV. Sundararajan Counsel for the Respondents : Sri R.Radhakrishna Reddy for R3 The court made the following judgment: (judgment follows 2nd page) THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 3 2 5 OF 2004 O R D E R : This second appeal is filed against the decree and judgment dated 28-02-2004 passed in A.S.No. 19 of 2003 by the Senior Civil Judge, Punganur, Chittoor district, whereby and whereunder the learned Judge reversed the decree and judgment dated 26-08-2003 passed in OS.No. 154 of 1991 by the learned Principal Junior Civil Judge, Punganur. 2. Heard the learned counsel appearing on either side and perused the record. 3. The plaintiff is the appellant. For the sake of convenience, the parties will be referred to as ‘plaintiff” and ‘defendants’. 4. The facts relevant for considering this second appeal may be stated as follows: According to the plaintiff, the plaintiff and the first defendant are brothers, they became divided about two decades ago and since then they have been living separately. The defendants 2 and 3 are the sons of the first defendant. The plaintiff had re-claimed the suit land by spending huge amount and made fit for cultivation and has been cultivating the same. The State Government considering the possession and enjoyment of the plaintiff, issued D.K.T. patta in A.M. No. 598/4/84 in favour of the plaintiff, which fact is not in dispute. The plaintiff has been paying the land revenue to the Government and he was also granted ryot passbook in his name. The defendants never raised any objection as to the exclusive peaceful possession and enjoyment of the plaintiff over the plaint schedule land, which was assigned to the plaintiff. It is the version of the plaintiff that the defendants having become jealous of the improvements made by the plaintiff to the plaint schedule land asked him to permit them to draw water from one of the wells which is situated on the western side of the plaint schedule land, for which the plaintiff refused. Keeping the said fact in mind, the defendants started openly proclaiming in the village that they would forcibly occupy the possession of the plaint schedule land by dispossessing him and under the said circumstances, the plaintiff filed the suit for permanent injunction against the defendants. 5. The first defendant filed the written statement, which was adopted by defendants 2 and 3. Their contention is that after their father late Sri Narasimhappa, became old the plaintiff occupied the position of the manager of Hindu joint family consisting of himself and defendants, obtained “D” form patta on 31-08-1974 . But the said land infact belongs to the joint family and the patta was granted in his name because he is the kartha of the joint family and in fact the DKT patta was granted for the benefit of joint family members. Therefore, according to them, the plaint schedule land is a joint family property and the plaintiff cannot claim any exclusive rights in the plaint schedule property. According to the defendants, the plaint schedule land, was taken over by the Government on 05-02-1999 under the provisions of AP Estates (Abolition and Conversion into Ryotwari) Act, 1948 and it was included in Survey No.15 of Mangalam survey group. An enquiry under section 15 (1) of the Estates Abolition and Conversion into Ryotwari Act was held by the Additional Assistant Settlement Officer, Chittoor. During the said enquiry, the Executive Officer, Temples, Punganur on behalf of Sree Someswara Swamy Temple and archakas of the said temple set-up the claims for grant of Ryotwari patta for the lands situated in the village Guttapalle. The suit property was one among several other lands of an extent of 884 acres. The plaintiff, defendants and their father raised objection for grant of Ryotwari patta for the suit lands either in the name of deity or in the name of archakas in S.No.162/15(1)/61 PGR. It is their case that their family has been in continuous and uninterrupted peaceful possession and enjoyment since the time of their ancestors. However, they admitted that ultimately the Assistant Settlement Officer by his order S.R. 276 and 289/11(a)/64 PGN (press note) dated 31-01-1966 rejected the claims of the ryots on the ground that no documentary evidence was forthcoming. Ultimately the order passed by the Assistant Additional Settlement Officer became final, vide Memorandum No. 2498/68-8 dated 08-10-1971 stating that Government cannot interfere on behalf of the plaintiff and defendants under the p Estate (Abolition and Conversion into Ryotwari) Act, 1948. However, it is stated that the parties to the suit were directed to approach the District Collector, Chittoor for assignment of land, if they are eligible for any such assignment under the assignment rules. 6. Thus, the defendants also admitted that ultimately the land was vested in the Government. But their contention is that in fact though “D’ form patta was granted in the name of the plaintiff, it was granted on behalf of the joint family members i.e., plaintiff as well as defendants. Therefore, they assert that it is not open for the plaintiff to claim that it in is his exclusive possession and later was assigned to him by the Government. 7. Since the schedule mentioned land was assigned to the plaintiff under “D” form patta, all the relevant revenue records are being maintained the name of the plaintiff and a ryotpassbook was also issued to him. The said fact had not at all been denied by the defendants. However, the voters list and certain documents relating to electricity consumption charges and some land revenue receipts would show that the defendants are in joint possession of the land with the plaintiff. The learned trial court having thoroughly considered the evidence of PWs 1 to 3 and the documents namely Exs.A-1 to A- 17 on behalf of the plaintiff and the evidence of DWs 1 to 5 and Exs.B-1 to B-21 and Exs.X-1 to X-13 on behalf of the defendants, ultimately arrived at positive finding that the schedule mentioned land is assigned to the plaintiff by the Government under “D” form patta and the defendants cannot claim any rights as joint owners of the said property and that the plaintiff has exclusive right over the said property, and therefore, the plaintiff is entitled for permanent injunction. Thus, the trial Court decreed the suit for permanent injunction as prayed for by the plaintiff. Against which, the defendants preferred A.S.No. 19 of 2003, it was heard and disposed of by the learned Senior Civil Judge, Punganur, Chittoor district, who by his judgment dated 28-2-2004 reversed the findings recorded by the trial Court and dismissed the suit filed by the plaintiff. The learned first appellate court held that even though “D” form patta is granted in the name of the plaintiff, in fact it was granted on behalf of the joint family and the documentary evidence adduced by the defendants reveals that the schedule mentioned property is the joint family property of the plaintiff and defendants, and therefore, the plaintiff is not entitled for permanent injunction against the defendants. The first appellate court further taking into consideration the counter-claim made by the defendants in respect of part of the property and report of the Commissioner who was appointed for noting down the physical features of the schedule mentioned land held that the decree granted by the trial Court in favour of the plaintiff for permanent injunction stood set aside to the extent of defendants share on the western side in survey No.300/3. The first appellate court also granted permanent injunction in favour of the defendants basing on the counter-claim pleaded by them against the plaintiff with regard to part of the property which is mentioned in the counter-claim. The said judgment and decree passed by the learned first appellate court is challenged by the plaintiff in the second appeal. 8. The substantial question of law which arises for consideration in this second appeal is when the “D’ form patta is granted in favour of the plaintiff in respect of the schedule mentioned land as per the assignment rules, whether it can be treated as joint family property and the defendants who are the brothers of the plaintiff can claim any rights in the said property ? 9. It has been contended by the learned counsel appearing for the defendants that even though “D’ form patta is granted in the name of the plaintiff, since it was granted on behalf of the joint family the defendants can claim rights in the property, and therefore, the first appellate court is perfectly justified in reversing the decree and judgment passed by the trial court and restricting the decree only to the part of the plaint schedule land. In support of his contention the learned counsel relied on a decision in M. PAKAMMA @ CHITTEMMA V/s. LAND ACQUISITION OFFICER, KAKINADA[1], wherein the learned single Judge of this Court while dealing with the A.P. Estates (Abolition & Conversion into Ryotwari) Act, 1948 held as follows: “The effect of the patta issued under section 11 of the Estates Abolition Act was for conversion of the tenure and for imposing a higher land revenue and making the pattedar responsible for recovery of such land revenue. It does not however alter the principal title existing in the property and representative character of the person, who obtained the patta. When a tenure is terminated there is no doubt an alteration in the relationship between the owners inter se unless it is brought about by any relinquishment or any transfer between the owners prior to the date of granting patta. According to the learned single Judge therefore when patta was granted under section 11 of the 1948 Act in favour of one co-sharer it enures to the benefit of other co-sharer also. But the said decision is not applicable to the facts of the present case. The decision was rendered while dealing with the situation, which had arisen under the AP Estates (Abolition & Conversion into Ryotwari) Act, 1948. Here the defendants specifically admitted that when they approached for grant of Ryotwari patta in respect of the schedule mentioned land, the Settlement Officer and the Government refused to grant Ryotwari patta for want of jurisdiction under the AP Estates (Abolition & Conversion into Ryotwari) Act, 1948 and that they advised them to approach the Collector, Chittoor district for assignment as per assignment rules, if they are otherwise eligible for any such assignment. Therefore, admittedly the schedule mentioned land is a land assigned by the Government in favour of the plaintiff under “D” form patta. As per the A.P. Assigned Land (Prohibition on Transfers) Act, 1977 the assigned land has tobe enjoyed exclusively by the individual in whose favour the assignment is made and it is not liable for partition between the joint family members. The assigned land may be heritable but it cannot be divisible among the joint family members and it also cannot be alienated as laid down under the various provisions of the A.P. Assigned Land (Prohibition on Transfers) Act, 1977. 10. The ownership of the assigned land would be with the Government, the assignee has a mere possessory right. As per the assignment policy under the Act and Rules the assignment shall be in favour of a single person. Therefore, the joint family members getting any right and claiming partition does not arise. The decree and judgment passed by the learned first appellate court restricting the decree of permanent injunction granted by the trial Court only to certain extent of land is illegal and cannot be sustained. Since the decree and judgment passed by the first appellate court is contrary to law and the provisions of A.P. Assigned Land (Prohibition on Transfers) Act, 1977 and this being the substantial question of law arose for consideration in the second appeal, the decree and judgment passed by the learned first appellate court, is set aside in this second appeal. The judgment and decree passed by the trial Court is confirmed. Consequently, the second appeal succeeds and the same is allowed. There shall be no order as to costs. ________________________ JUSTICE R. KANTHA RAO 11-03-2011 I s L N B : LR Copy to be marked. B/o. I s L THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 325 OF 2004 CIRCULATION NO.61 DATE: 11-03-2011 COURT MASTER: I s L COMPUTER No. 43 [1] ) 1988 (1) (SN)