IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE ELEVENTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.339 of 1999 BETWEEN P. Rajeshwar and others. …APPELLANTS AND Madas Ramloo (died) and others. …RESPONDENTS Counsel for the Appellants: MR. P.S. MURTHY Counsel for the Respondents: MR. GANESH RAO The Court made the following: - ORDER: This appeal is by the defendants against the concurrent decrees of both the Courts below decreeing the respondent’s suit O.S.No.223 of 1987 for possession. 2. The contest in the aforesaid suit arises out of two orders of assignment one in favour of the appellants/defendants - Ex.B3 dated 16.05.1977 and the other in favour of the respondent/plaintiff – Ex.A1 dated 27.09.1986. It is the case of the respondents that the appellant violated the conditions of assignment – Ex.B3 whereupon the appellant was given a show cause notice – Ex.A2 dated 28.07.1986 and as there was no response the order of cancellation – Ex.A3 dated 26.08.1986 was passed against him. Consequent upon the said cancellation, an order of assignment for the very same land was made in favour of the respondent/plaintiff. Alleging that the appellant is interfering with his possession, the respondent initially filed a suit being O.S.No.418 of 1986 before the District Munsif, Nizamabad seeking permanent injunction with respect to the suit schedule land and alleging that in spite of interim injunction orders passed in the said suit, the respondent/plaintiff was dispossessed by the appellant on 15.11.1986, he filed another suit O.S.No.223 of 1987 for possession and mandatory injunction for dismantling the structures on the suit plot. 3. The appellants/defendants resisted the suit by alleging that the order of assignment in favour of the respondent/plaintiff could not have been made under Section 4 of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (for short ‘the Act’), as neither the notice prior to cancellation was served on the appellants/defendants nor the said order of cancellation of assignment – Ex.A3 is valid as Government would utmost resume the land and assign the land again to the assignee as per Section 4 of the Act. 4. The parties went for trial by leading oral evidence. On consideration of the oral and documentary evidence, the trial Court rejected the case of the appellants/defendants by holding that the notice having been duly issued by the Government prior to cancellation of assignment of the appellants/defendants and there being prima facie violation of the conditions of the assignment, the appellants have no right to resist the assignment made in favour of the respondent/plaintiff. The suit was accordingly decreed. The said decree has been confirmed in appeal by the lower appellate Court. Hence, this second appeal. 5. This second appeal was admitted on 02.04.1999 on the following substantial questions of law and the execution of decree was stayed pending this appeal. 1. Whether the cancellation of the assignment made in favour of the third defendant is valid and in accordance with the provisions of the Act 9 of 1977? 2. Whether the sale of the assigned land by the third defendant to the second respondent is protected under sub-section 5 of Section 3 of the said Act? 3. Whether the civil Court is competent to entertain the suit or whether the plaintiff should move the competent authority under the said Act for appropriate relief? 6. Heard the learned counsel for the appellant and the learned counsel for the respondents. 7. Section 4 of the Act provides that in case of breach of Section 3 of the Act, the District Collector or any officer not below the rank of Mandal Revenue Officer authorized by him shall, by order, take possession of the assigned land after evicting the person in possession and restore the possession to the original assignee, if he or she is eligible, or assign to other eligible landless poor person. 8. Learned counsel for the appellants contends that there is no evidence of service of notice prior to cancellation and even assuming that the order of cancellation was warranted under the Act, the Government is bound to resume the land and then re-assign it to the original assignee. None of these things have been complied with by the authorities under the Act. He contends that the appellants have built a house on the property and that is evident from the relief of mandatory injunction sought for by the respondent in the present suit. Learned counsel, therefore, says that the presence of the assignee on the suit land with structures cannot be denied and as such, there is no evidence of any resumption of land by the Government and thereby, without assigning the land to the same assignee as provided under the Act, fresh assignment made in favour of the respondent/plaintiff is not sustainable. 9. Learned counsel for the respondent/plaintiff, on the other hand, submits that the show cause notice and the order of cancellation – Exs.A2 and A3 clearly show that the appellant was served by affixture, which is in accordance with the Rules framed under the Act and as there was no response to the show cause notice and as there was violation of the condition of assignment, evident on the site, the order of cancellation – Ex.A3 is valid. Learned counsel also places reliance upon the evidence of the wife of the original assignee – appellant, who according to the learned counsel admitted the alleged violation. He also places reliance upon the amendment made to Section 4 of the Act by AP Act 8 of 2007 wherein Section 4(b) is amended by providing that after cancellation of assignment, the Government is free to assign it to any other eligible landless poor person as well. He, therefore, submits that Section 2 of the said amendment Act having been given retrospective effect from 21.01.1977, even if there is any defect in the order of resumption – Ex.A1 in his favour, the same does not now survive in view of the amendment Act. He also submits that the dispute relating to the assignment or its cancellation was required to be adjudicated only before the authorities under the Act and not before the civil Court. 10. On the basis of the above, I have considered the aforesaid submissions and the fact that the respondent himself approached the civil Court by seeking decree of possession negatives any contention on behalf of the respondent that civil Court had no jurisdiction. Secondly, the suit being a suit for possession, the respondent/plaintiff had to establish his title as against competing title, as pleaded by the appellant/defendant. It is true that the provisions of the Act prior to the amendment lend support to the contention of the learned counsel for the appellant but the amendment Act, referred to above, changes the complexion of the dispute, particularly, in view of the contention of the learned counsel for the respondent that retrospective effect is given to the said amendment Act. Now, these submissions are, for the first time, being raised in this appeal and the Courts below did not have any occasion to examine the matter from that standpoint. Since the crucial question arising in this suit relates to validity or otherwise of the assignment, as claimed by respondent/plaintiff and keeping in view, the subsequent event of amendment of the Act aforesaid, I deem it appropriate to set aside the judgment of the lower appellate Court and remit the appeal for fresh consideration to the lower appellate Court in the light of the subsequent amendment to the Act to examine the contention of both parties. The lower appellate Court shall frame the following points for consideration: 1. What is the effect of the AP Amendment Act 8 of 2007 on the assignments – Exs.A1 and B3 claimed by the respondent/plaintiff and appellant/defendant respectively? 2. Whether the said amendment Act has any retrospective effect so as to validate the invalidity, if any, in the assignment – Ex.A1 in favour of the respondent/plaintiff? 11. The lower appellate Court shall determine the appeal afresh on the points for consideration earlier framed by it and also the points framed hereinabove and decide the appeal after giving due opportunity to both sides in accordance with law. Since the matter is sufficiently old, the lower appellate Court shall endeavour to dispose of the appeal expeditiously. The execution of decree was already stayed by this Court by interim order passed in CMP.No.7432 of 1999 dated 02.04.1999. In view of this appeal succeeding as above, the execution of decree of the trial Court shall abide the decision of the lower appellate Court, as directed above. The second appeal is allowed. The costs of this second appeal shall abide the result of the appeal remitted to the lower appellate Court, as above. ___________________ VILAS V. AFZULPURKAR, J March 11, 2011 DSK