*THE HONOURABLE SRI JUSTICE P.S.NARAYANA + AS.No.2712 of 1992 %01-04-2010 # The State of Andhra Pradesh, rep. by the Collector, Krishna, Chilakalapudi, Machilipatnam, DMC ..... APPELLANT AND $Prabhala Hemalatha Devi and others ..... RESPONDENTS !Counsel for the Appellants: Assistant Government Pleader for Appeals Counsel for the Respondents: <Gist : >Head Note: ? Cases referred: 1. AIR 1965 Andhra Pradesh 457 (V 52 C 110) 2. AIR 1966 Andhra Pradesh 277 3. 1960 Andhra Law Times 357 4. AIR 1979 Andhra Pradesh 255 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIRST DAY OF APRIL TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA APPEAL SUIT No.2712 of 1992 Between: The State of Andhra Pradesh, rep. by the Collector, Krishna, Chilakalapudi, Machilipatnam, DMC ..... APPELLANT AND Prabhala Hemalatha Devi and others ..... RESPONDENTS JUDGMENT: The State of Andhra Pradesh represented by the District Collector, Krishna, the first defendant in O.S.No.54 of 1983 on the file of the Subordinate Judge, Machilipatnam, had preferred the present appeal being aggrieved by the decree and judgment made therein. 2. The first plaintiff Prabhala Subrahmanyam died during the pendency of the suit O.S.No.54 of 1983 and plaintiffs 2 to 4 were added as per the orders dated 11-09-1990 in I.A.No.944 of 1990. The said plaintiffs 2 to 4 are shown as respondents 1 to 3 herein. The defendants 4 to 9 in the said suit are shown as respondents 4 to 11 in the present appeal. The appeal was dismissed for default as against R-7 to R-10 by virtue of an order made by this Court dated 27-07-2000. 3. The learned Assistant Government Pleader for appeals representing the appellant had taken this court through the respective pleadings of the parties, the evidence available on record, and the findings recorded by the trial Court and would maintain that even if such attachment to be taken as illegal, the Government cannot be fastened with liability. The learned Assistant Government Pleader for appeals also would maintain that no evidence was adduced on behalf of the plaintiffs to establish that the heaps harvested would fetch the amount as claimed. The only witness – 4th plaintiff had no knowledge about the same and no documents had been filed by the plaintiff in this regard. The learned counsel also would submit that the learned Subordinate Judge, Machilipatnam could not approve the legal position in proper perspective. 4. The learned Assistant Government Pleader for appeals also would submit that the provisions of Section 80 of the Code of Civil Procedure also had not been complied with and at any rate the suit is barred by limitation. The learned Assistant Government Pleader for appeals ultimately would conclude that in the light of the specific grounds raised this appeal shall be allowed. None represents the contesting respondents 1 to 3. As afore said the appeal was dismissed for default as against R-7 to R-10. R-4 to R- 6 and R-11 also are not represented by any counsel. 5. Heard the learned Assistant Government Pleader for appeals. 6. Before taken up further discussion on the points which may arise for consideration in this appeal, it may be appropriate to have a glance at the respective pleadings of the parties, the issues settled, the evidence available on record and the findings recorded by the trial Court, the learned Subordinate Judge, Machilipatnam, in brief. 7. Pleadings of the parties:- Averments made in the plaint: The plaintiff is the absolute owner of Ac.9.00 of wet land in patta Nos.1011, 304, and 443 bearing R.S.No.549, 552, 552 and 566/2 and 566/3 in the village of Peda Thummidi within the jurisdiction of Kaikaluru Taluk and the plaintiff is always in possession and enjoyment of the said lands and he is personally cultivating the lands with the assistance of the farm servants and also casual labourers. One Bolla Venkanna, son of Kanakayya of China Thummidi was functioning as the Nigaman of the plaintiff regarding the agricultural operations etc., in respect of the afore mentioned lands during the absence of the plaintiff who was employed as Senior Lecturer in English is the Sir C.R.Reddy College at Eluru. The plaintiff owned and possessed a thatched shed in China Thummidi village wherein the mother of the plaintiff was then residing and with who the plaintiff was staying during his visits to his lands in the village in connection with the effective carrying out of his cultivation and personal supervision of the agricultural operations whenever it become necessary. During Fasli 1390, the Plaintiff raised Dalva crop in an extent of Ac.8.00 out of his Ac.9.00 of land and he got the said crop harvested under his personal supervision and got the same heaped in five heaps in the said lands and accordingly to the most modest estimate, the total quantity of paddy contained in the said five heaps was not less than 130 bags of 75 kgs., of the 4-14 variety of paddy. After the heaping of the paddy, was completed the plaintiff unfortunately had a number of calamities including the simultaneous visitation of illness and disease on his mother and son respectively which necessitated the plaintiff to proceed to Madras on 31.3.1980 and made him a victim of much physical suffering as well as mental agony and unrest. Inspite of his condition the plaintiff returned to Eluru on 15.5.1980 from Madras, from where he had to proceed expeditiously to Waltair to attend an urgent meeting or the Board of Studies and could be back to Peda Thummidi only on the night of 22.5.1980 at 8 P.M. with a view of continue the harvesting operations of the paddy heaped by him in the five heaps as mentioned above. To the surprise and shock of the plaintiff, the paddy heaps including the hay were not in the fields as they were when he left for Madras. Enquiries revealed that the defendants 2 to 7 and late Shaik Davood the then Deputy Tahsildar and the father of 8th defendant, removed the heaps and took away the same high handedly both paddy and the hay, taking advantage of the absence of the plaintiff and his mother. The first defendant is the State of Andhra Pradesh, while the second defendant is the concerned Revenue Inspector; the 3rd defendant is Karnam of the village while the fourth defendant is the village Munsif. 5th defendant is the vetty and the defendants 6 and 7 are participants. The 8th defendant is the son of the then Dy. Tahsildar. Further enquiry by the plaintiff revealed that the staff of the Revenue Department consisting of the Dy. Tahsildar, and the defendants 2 to 7 invented a story that the five heaps of the paddy which belonged to the plaintiff were attached for the algid arrears of the Revenue due to the Government and sold on 28.5.1980 and that the same was purchased by the 9th defendant herein. The plaintiff further submitted that the entire version is also and is an imaginary invention. The plaintiff was not served with any notice what so ever either for the payment of the alleged arrears or any notice of attachment of the paddy heaps or of any proceedings intended to be taken or taken under the Revenue Recovery Act., which is mandatory and which alone creates jurisdiction in the Government to take proceedings under the said Act. The alleged auction of the paddy heaps to the 9th defendant on 28.5.1980 is palpably false and an impossibility as the paddy heaps have been removed from the land of the plaintiff and were not there, even by 8 P.M., on 22.5.1980 when the plaintiff visited the fields. The utter falsity of the alleged auction and purchase by the 9th defendant during enquiry by the Revenue Divisional Officer, Gudivada made a wrong statement that there was no auction and he never purchased the paddy heaps in the land of the plaintiff on 28.5.1980 or at any time. In view of the above facts, and circumstances, the plaintiff filed a petition before the first defendant on 11.6.1980 and receiving no response, the plaintiff filed a number of petition for relief and justice. The repeated petitions made the Revenue Department move,though belatedly and the Revenue Divisional Officer, Gudivada commenced enquiry on 13.6.1981 and two witnesses were examined on behalf of the plaintiff and the matter was adjourned to 20.9.1981 on which date eleven more witnesses were examined by the Revenue Divisional Officer, Gudivada on that date and adjourned to 9.8.1981 and 18.9.1981 when the evidence was closed. After hearing the arguments on 19.10.1981, the Enquiry Officer re-opened the case about an year later and several witnesses were recalled and further witnesses were examined and the matter was closed on 19.11.1982. Inspite of the same, the Enquiry Officer did not pass any order, obviously because the entire evidence disclosed serious fraud, and conspiracy on the part of the Government Servants throwing serious stigma on several officers of the Revenue Department. As justice has not been done and nothing has transpired inspite of the long and protracted enquiry, the plaintiff got issued notices to the defendants 1 to 8 on 11.4.1983 and inspite of the receipt of the same by the defendants 1 to 3 and 5 to 8 and 4th defendant refused the said notice, none of the defendants send any reply to the plaintiff and therefore, the plaintiff filed the suit against the defendants towards the value of the paddy heaps as the delivery of the same cannot be had now. The plaintiff begs to submit that the defendants 1 to 7 and the father of the 8th defendant are jointly and severally liable to the plaintiff to pay the value of the crop contained in the heaps which were not in existence now kept on the plaintiff’s land and also interest at the rate of 6% p.a., from 22.5.1980 till the date of plaint and also subsequent interest till the date of payment. The plaintiff had to spend an amount of Rs.1,525.00 for his expenses at the time of the enquiry before the Revenue Divisional Officer, Gudivada including fee of Rs.525.00 paid by the plaintiff to his advocate which the defendants 1 to 7 and the father of the 8th defendant are liable to pay the same. 8. Averments in the written statement of the first defendant are as hereunder: The material allegations in the plaint are not true and correct and the suit is not maintainable in Law. The suit is barred by limitation under the provisions of the Andhra Pradesh Revenue Recovery Act and therefore, the suit is liable to be dismissed in limine. The first defendant acted in exercise of its sovereign function of collecting the Land Revenue and Drainage Cess etc., and no suit lies against it. It is true that the plaintiff owns Ac.9.04 cents at Pedathummidi and he also owns lands at China Thummidi. The said lands are not under the self-cultivation of the plaintiff as he is working as Lecturer at C.R.R.College, Eluru and the lands being poor are not worthwhile for self-cultivation. He leased out the said lands to 1) Bolla Venkanna, 2) Vemula Pentaiah, 3) Ekula Ramaiah, 4) Arju Pentayya and 5) Garikimulla Venkata Reddy who have been in possession and cultivating the said lands. It is false to state that the plaintiff has been cultivating the lands personally under the Supervision of Bolla Venkana with the assistance of four servants and casual labourers B.Venkanna of Chinatummidi, has been a lessee since several years upto 1389 falsi. It is not true to say that he is Nigaman of the plaintiff, as he expressed his inability to cultivate the entire extent of the land with Dalwa during Fasli 1389, the lands of the plaintiff have been leased out to the above five lessees. The plaintiff has neither house nor the house site at Chinatummidi or any other surrounding villages. He has been residing at Eluru and working as Lecturer in C.R.R. College for the last 15 years and his mother is also is putting up with him. His brother, P.Lakshminarayana Sastry is working as Village Development Officer at Meturu Panchayat Samithi and he has no house either at China Tummidi or at any other surrounding villages. He is residing at Gudivada. Thus the plaintiff and his brother are absentee landlords of the lands. They used to lease out their lands to riots. It is false to state that the Dalva crop during Fasli 1389 was raised under the Supervision of Bolla Venkanna, harvested and heaped in five heaps and total quantity yield is not less than 130 bags of paddy at 75 kgs, per bag. The paddy crop was heaped in five heaps by lessees as stated above. The lands are poor lands subjected to vagaries of nature and the plaintiff neglected the lands without providing necessary funds to lessees and there are no proper irrigation facilities, the yield of land was very poor and meager. The lands in question and surrounding lands in the village are of poor fertility and with low yield in view of the lack of irrigation facilities at opportune time. Naturally late transplantation or lack of water or want of manures and want of funds and seasonal conditions and posts may result in low yield in Dalva Crop. The cultivation accounts of the lands in question and other surrounding lands would reveal the correct position of the crop. In any view of the matter, the lands were not capable of yielding and did not yield 130 bags of paddy for Dalva Crop during the fasli 1389 and the lands in question and other riots lands suffered from poor yield of crop for lack of water and other reasons. The position of the yield of the plaintiff’s lands are simple revealed by cultivation accounts from the last 9 seasons i.e., from 1383 to 1391 faslis. The estimated yield never exceeded to 10 bags of paddy per acre. As per the estimate of the Village Officer, the yield of the land in question as per Adangals was 27 bags of paddy, which was more than the actual yield. The value of the estimation of crop was duly noted in the demand notice No.2 as Rs.1500.00. The plaintiff is a chronic defaulter to pay the Government dues and he is always irregular in payment of the Government cist etc. By the time of the attachment, the amount reached to Rs.4032.88 Ps. towards the arrears of the Land Revenue from Fasli 1384 to 1389 including Drainage cess etc., the details of which are as follows (for which the demand notice was served on all the fire lessees) Land Revenue .. Rs.3131.88 Ps. Drainage Cess .. 901.00 Ps. ------------------------------ Rs.4032.88 Ps. ------------------------------ The plaintiff has been negligent in cultivating his lands and he has not provided funds to the lessees as and when they require for manures etc. He used to keep follow some of the extent of the land every year in this village and in Chinatummidi. He is willfully negligent without paying the Govt. dues. The paddy heaps have been attached by the Revenue Officials after observating all formalities under Law to recover the Govt. Arrears of the land revenue and other cess. As the plaintiff was not available, the persons in possession being lessees were duly served with all demand notices Nos.1 and 2. The sale notice under No.3 was also duly served and the sale was adjourned for two occasions. Finally the sale of the heaps was held in open auction at the Gram Panchayat Office on 28.5.1980 and the 9th defendant had been declared as highest bidder in the auction. He was put in possession of the paddy heaps. On account of the Village politics the 9th defendant turned hostile and supported the plaintiff during the enquiry before the R.D.O., Gudivada. He was estopped to deny the auction as he signed on the sale list at the time of auction when it was knocked down in his favour. The auction amount of Rs.1,000.00/- realized was duly credited towards the arrears of Government dues from the plaintiff. The attachment of the paddy heaps and the auction of the same is proper, legal and valid and in accordance with the provisions of Law. The defendants 2 to 8 being govt. servants have properly and legally conducted themselves in discharging duties according to Law. They bona fide and in good faith acted in discharging their official duties. The elaborate enquiry of Revenue Divisional Officer, Gudivada revealed that all the actions of plaintiffs are false and incorrect and the defendants have not committed any wrong. The suit is bad for misjoinder of parties and 8th defendant is not proper and necessary party to the sale. They are not jointly and severally liable for the suit amount or to interest on the said amount from 22.5.1980. The allegations that the plaintiff spent Rs.1525.00 for expenses at the time of the enquiry before the Revenue Divisional Officer, Gudivada and he is not entitled to claim the said amount or interest thereon. The plaintiff is not entitled to claim Rs.13,000.00 towards the value of the crop Rs.1,000.00 for value of hay Rs.2572.50 ps. Towards interest and Rs.1525.00 towards the expenses. The Value of the paddy as claimed in the suit is highly excessive and the plaintiff is not entitled to claim the same or any amount against the defendants and therefore, he prayed to dismiss the suit with costs. 9. Defendants 2 to 4 filed memo of adoption adopting the writ petition of the first defendant. The averments made in the written statement of defendants 5 to 7 are as hereunder: Defendants 5 to 7 filed a written statement alleging that the plaintiff has leased Ac.4.00 of land for three years and the land is not a fertile land and remission was also granted for one year. The government has attached the crop in Ac.4.00 of lead under the cultivation of these defendants, for the fasli 1390 towards the land revenue due to the Government. When the crop was attached, the fifth defendant watched it as he is the vetty of the village. Defendants 5 to 7 have nothing to do with the attachment or sale of the property. The auction purchaser Penumala Seshayya took away the crop but the said Penumala Seshayya turned hostile to the plaintiff and gave false statement and therefore, these defendants are not liable to pay the suit amount and the suit may be dismissed with costs. 10. Defendants 8 and 9 remained exparte. 11. Issues settled by the trial Court: 1. Whether the plaintiff is entitled for the amount as claimed in the suit and if so, from which of the defendants? 2. Whether the suit is in time? 3. Whether the plaintiff committed default in payment of the land revenue? 4. Whether the attachment of paddy heaps and their sale is proper, legal and valid? 5. Whether there is no proper notice under Section 80 CPC? 6. whether the suit is bad for mis-joinder of parties and cause of action? 7. Whether the 8th defendant is not a proper and necessary party to the suit? 8. To what relief? 12. Evidence adduced by the parties: On behalf of plaintiff PW-1 was examined and Exs.A-1 to A- 11 were marked. Likewise DWs.1 and 2 were examined and Exs.B-1 to B-7 were marked on behalf of the defendant. 13. Findings recorded by the trial Court: The learned Subordinate Judge, Machilipatnam after referring to the relevant provisions of Madras Revenue Recory Act and also Andhra Pradesh Revenue Recovery Act and further after referring to certain decisions came to the conclusion that the procedure was not followed in accordance with law and further came to the conclusion that the contention that the suit is barred by limitation also is not tenable. The learned Judge appreciated the evidence of PW-1 and also had taken into consideration the admissions made by PWs.1 and 2 as well and came to the conclusion that the plaintiffs would be entitled to recovery of amount of Rs.9,000/- only towards value of the paddy. The learned Judge further recorded that Ex.A-1 notice is in accordance with law and the provisions of Section 80 of the Code of Civil Procedure had been complied with. Further the learned Judge observed that the persons who participated either in attachment or in sale had been made as parties to the suit and hence, the suit is bad for mis-joinder of necessary parties. Thus, ultimately the learned Judge decreed the suit for Rs.9,000/- with proportionate costs against the defendants 1 to 7 and against the estate of Shaik Dawood in the hands of D-8 if any with subsequent interest at 6% p.a. till realization and rest of the plaintiffs’ claim is dismissed with costs. 14. Aggrieved by the same, the present appeal has been preferred. In the light of the submissions made by the learned counsel on record the following points arises for consideration in this appeal are: 1. Whether the findings recorded by the trial Court can be set up in accordance with law and whether such findings are to be confirmed or to be disturbed in the light of the facts and circumstances and also the evidence available on record ? 2. If so, to what relief the parties would be entitled to ? 15. POINT No.1: For the purpose of convenience the parties hereinafter would be referred to as shown in the original suit O.S.No.54/83 on the file of the Subordinate Judge, Machilipatnam as aforesaid. The original plaintiff Prabhala Subrahmanyam died during the pendency of the suit and plaintiffs 2 to 4 who are respondents 1 to 3 in the appeal were brought on record by virtue of an order dated 11-09- 1990 made in I.A.No.944 of 1990. The respective pleadings of the parties, the issues settled, the evidence available on record and the findings recorded by the trial Court in nutshell already had been referred to above. 16. The evidence of PW-1, DWs.1 and 2 is available on record and apart from this oral evidence documentary evidence Exs.A-1 to A-11 and Exs.B-1 to B-7 also had been relied upon. The deceased first plaintiff was the owner of Ac.9-00 cents in R.S.Nos.549, 552 and 566/2 and 566/3 of Pedathummidi village. It is the case of the plaintiff that these lands were under the personal cultivation of the deceased first plaintiff but however, the stand taken by the contenting defendants was otherwise to the effect that the lands were not under the cultivation of the first plaintiff and they were leased out to 5 persons. It is not in dispute that the paddy crop in Ac.8.00 gts., was got cut and heeped into 5 heaps. No doubt there is some controversy whether there were kept in 5 heaps or they were kept in small kuppas. The first plaintiff was a defaulter in payment of land revenue and he did not pay land revenue to the extent of Ac.4-88 gts., for F.1384 to 1389. It is also not in dispute that the said heaps were attached, however, the dispute is that there was no sale in accordance with law and the very attachment was not in accordance with law and inasmuch as the attachment and sale being in accordance with law and being illegal. The plaintiffs are entitled to the relief as prayed for. 17. The specific stand taken by the contesting defendants was to the effect that they discharged their official duties in accordance with law and hence, they cannot be fasten with any liability whatsoever. 18. Before taking up further discussion relating to the appreciation of evidence it will be appropriate to have a look at the relevant provisions of the Andhra Pradesh Revenue Recovery Act, 1864. The Andhra Pradesh Revenue Recovery Act (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) consolidated the law for recovery of arrears of revenue in the state of Andhra Pradesh. 19. Section 4