THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETIITON Nos.6423 & 6516 of 2006 Dated:-________ March, 2011 Between:- Gogineni Pitcheswara Rao …Petitioner AND The State of A.P. and others …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETIITON Nos.6423 & 6516 of 2006 COMMON ORDER:- As both these revisions are directed against same order and decree dated 06.11.2006 passed in L.R.A.No.21 of 2000 by the Chairman, Land Reforms Appellate Tribunal (II Additional District Judge, West Godavari, Eluru) (‘the lower appellate Tribunal’, for brevity), both these revisions are disposed of by this common order. 2. C.R.P.No.6423 of 2006 is preferred by respondents 1 and 2 and C.R.P.No.6516 of 2006 is preferred by the respondent No.3 before the lower appellate Tribunal. 3. The main submission of the learned counsel for the petitioner in C.R.P.No.6516 of 2006 is that after the appeal was remanded to the lower appellate Tribunal, no notice was issued to the petitioner and he was set ex parte. It is also his submission that the lower appellate Tribunal failed to consider that after the death of his wife, his minor children himself partitioned their properties on 31.12.1969 and as such, their holding cannot be computed to his holding. Per contra, learned Government Pleader for Arbitration representing the State, supported the impugned order and submitted that the contention of the learned counsel for the petitioner is incorrect that no notices have been served on the petitioner. It is also his submission that the lower appellate Tribunal has considered that the children of the petitioner/declarant, through his deceased wife, since were minors, the lands said to have been allotted to them were rightly computed to the holding of the petitioner and that the so called partition was also disbelieved. 4. It is most unfortunate that the learned counsel for the petitioner has advanced arguments without verifying the facts of the case. As seen from the record, after the matter has been remanded to the lower appellate Tribunal, the lower appellate Tribunal had issued notices to the petitioner and respondents 2 and 3 herein who were respondents 1 to 3 before the lower appellate Tribunal and it is clear that notices have been served on the them. In fact, the docket order of the lower appellate Tribunal reveals that Sri M.S.N.Murthy filed Vakalat for respondents 1 and 2 on 28.12.2005 and Smt.Y.Nirmala Devi filed Vakalat for the third respondent on 28.08.2006. The matter underwent adjournments from 12.09.2006. The judgment of the lower appellate Tribunal reveals that the arguments of the learned Assistant Government Pleader and Sri M.S.N.Murthy, learned counsel for respondents 1 and 2 were heard but however, Smt.Y.Nirmala Devi, counsel for the third respondent was absent and, therefore, the third respondent, who is the petitioner in C.R.P.No.6516 of 2006, was set ex parte. Admittedly, no application has been filed to set aside the ex parte order of the lower appellate Tribunal or to re-open the matter and no reasons have been assigned as to why the third respondent’s counsel could not appear before the lower appellate Tribunal and could not argue the matter on the date fixed for hearing. Therefore, I do not see any force in the contention of the learned counsel for the petitioner that no notices were served on the petitioner by the lower appellate Tribunal and no opportunity was given to him to put forth his case. 5. As seen from the record, previously when the petitioner in C.R.P.No.6516 of 2006 filed an appeal in I.A.No.10 of 1988 in L.R.A.(SR)No.39 of 1998 to condone the delay of 252 days in filing the appeal, the lower appellate Tribunal dismissed the same by its order dated 27.10.2000 and the petitioner carried the matter in revision before this court in C.R.P.No.599 of 2001 and this Court allowed the revision. Aggrieved by the same, the state carried the matter to the Apex Court in Civil Appeal No.7003 of 2004 and the Apex Court allowed the said appeal and directed the lower appellate Tribunal to restore the said appeal to file. In pursuance of the said order of the Apex Court, the appeal was restored back to file by the lower appellate Tribunal and as referred above, notices were issued to the parties and after hearing the arguments, the lower appellate Tribunal passed the impugned orders. 6. The brief facts of both the revisions are as follows:- The petitioner in C.R.P.No.6516 of 2006 – G.Pitcheswara Rao is the original declarant. He filed declaration in C.C.No.1366/VZA/75 before the Land Reforms Tribunal, Bandar (‘the Primary Tribunal’, for brevity) contending that his holding is less than the ceiling area and that his minor children, represented by their grand mother Sureddy Venkata Subbamma, filed separate declaration in C.C.No.1852/VZA/75 before the Primary Tribunal. The Primary tribunal clubbed both the declarations, formulated appropriate points for determination and finally held that the declarants possessed land equivalent to Ac 0.6036 standard holding in excess of ceiling area as on the notified date. Aggrieved by the said order, the declarants filed an appeal in L.A.No.57 of 1975, but were unsuccessful. Then, the matter was carried in revision before this Court in C.R.P.No.856 of 1977 which was also dismissed by this Court. Subsequently, they filed Writ Petition No.3052 of 1978 before this Court seeking a direction to the concerned authorities not to enforce the provisions of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, and to quash the proceedings so far taken under the Act. However, the said writ petition was dismissed by this Court on 18.07.1978. Questioning the same, they preferred Civil Appeal before the Apex Court being Civil Appeal No.774 of 1979 but the same was also dismissed by the apex Court on 28.11.1984. Then, the Primary Tribunal initiated steps for taking possession of the surplus land. Questioning the said notices, L.R.A.Nos.45 and 46 of 1986 were filed by the declarants before the Land Reforms Appellate Tribunal, Krishna at Machilipatnam, which had in turn confirmed the orders of the Primary Tribunal. Questioning the said orders, the declarants preferred C.R.P.No.1792 and 1796 of 1988 before this Court and this Court, by order dated 27.10.1989, held that the objection of the minor children is not tenable. Then again, the declarants filed Writ Petition No.1691 of 1996 before this Court, wherein, a direction was given to the Primary Tribunal by this Court to consider the application filed by the petitioners on the changed circumstances of the case. Then the primary Tribunal took up the matter, examined the declarants as P.Ws.1 to 3 and also marked the partition deed dated 31.12.1969 and deleted the lands said to have been allotted to the minor sons of the petitioner. Challenging the same, the state preferred appeal before the lower appellate Tribunal and the lower appellate Tribunal passed the impugned orders, mainly holding that the issue which was raised before it was already raised on earlier occasions before the Primary Tribunal, lower appellate Tribunals and also this Court, but the declarants failed to get favourable orders and, therefore, now the declarants cannot raise the same point once again before it. Aggrieved by the same, the first respondent before the lower appellate Tribunal/ declarant in C.C.No.1366/VZA/75 – G.Pitcheshwar Rao preferred C.R.P.No.6516 of 2006 and respondents 2 and 3 before the lower appellate Tribunal/declarants in C.C.No.1852/VZA/75 – G.Venkata Satyanarayana and Chintapalli Sri Lakshmi respectively preferred C.R.P.No.6423 of 2006. 7. The specific case of the petitioners in C.R.P.No.6423 of 2006, i.e., minor children of the declarant is that their mother – the declarant’s first wife – Jhansi died on 27.02.1969 and at the time of her death, they were minors and after the death of their mother Jhansi, their father Pitcheshwar Rao – petitioner in C.R.P.No.6516 of 2006 married second wife and that they were residing with their maternal grand mother – Smt. Sureddy Venkata Subbamma and that the properties were partitioned and their father executed a partition deed on 31.12.1969 allotting the ‘A schedule property’ and ‘B Schedule property’ to them respectively and since then, those properties are in their possession. Thus, their main contention is that the properties allotted to them in their family partition have to be treated as their separate properties and have to be excluded from the holding of the declarant. 8. The crux of the issue whether the lands said to have been allotted to the minor children of the declarant in their family partition have to be excluded from the holding of the declarant. 9. Section 3(f) of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (‘the Act’, for brevity) reads as follows:- i. In the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and their unmarried minor daughters, if any; ii. In the case of an individual who has no spouse, such individual and his or her minor sons and unmarried minor daughters; iii. In the case of an individual who is a divorced husband and who has not remarried, such individual and his minor sons and unmarried minor daughters, whether in his custody or not; and iv. Where an individual and his or her spouse are both dead, their minor sons and unmarried minor daughters. 10. In case between N.Ramaiah Vs. State[1], it was held as follows:- “Minor sons of the declarant through his first wife who was not living by the notified date have to be treated as members of the family unit.” 11. The same view was taken in case between B.Krishna Reddy Vs. Land Reforms Tribunal[2] wherein it was held as follows:- “Even in case of partition and allotment of share to the minor sons is not excludable from the holding of the father for determining the extent of the land in excess ceiling area.” 12. As seen from the above definitions, minor children of the declarant have to be included in the family unit of the declarant, even if they are living separately or even if any partition has taken place between the father of the minor children. Moreover, the Primary Tribunal, in its earlier order dated 31.10.1975 in C.C.No.1366/VZA/75, had categorically held that the declarant – G.Pitcheshwar Rao, in his declaration filed on 11.04.1975, did not refer about his second wife – Smt. Suryakanthamma and if at all he had married his second wife, he would have certainly mentioned about the same in his declaration. It also shows that the alleged partition deed was not filed before the Tribunal. Thus, it appears that the alleged partition deed did not see the light of the day, till a civil suit in O.S.No.297 of 2002 was filed on the file of the Subordinate Judge, Vijayawada. (now, Senior Civil Judge, Vijayawada.) 13. The Apex Court, in case between Meria Venkata Rao Vs. State of A.P. and others[3], had categorically held that “alienations made prior to 24.01.1971 have to be ignored.” It is true that there was no bar on transfers or alienations prior to 24.01.1971 and those have been left untouched by the Act, but the point in the case on hand is whether the minors have to be treated as separate from the family unit. Since the definition stipulated in Section 3(f) of the Act is very clear, therefore, I am of the view that even if it is held that there was partition among the declarant and his minor sons prior to 24.01.1971, the lands allotted to the minors in such partition cannot be treated as were belonging to a separate family unit. Moreover, in Meria Venkata Rao’s case (4 supra), Section 3(j) of the Act, i.e., the definition of a family unit did not come up for consideration. Thus, on facts, it appears that the above referred case is distinguishable. 14. Learned counsel for the petitioner has relied on Chanumolu Nirmala’s case (1 supra). The facts of that case are entirely different from the facts of the case on hand. The facts of that case are that the plaintiff instituted a suit claiming that she was married to one Bhaskar Rao and that the first defendant is the wife of said Bhaskar Rao and defendants 2 and 3 are son and daughter of said Bhaskar Rao by his first wife and that said Bhaskar Rao executed an unregistered will dated 14.08.1987 bequeathing certain properties to her. The main issue that came up for consideration in that case was whether the Will said to have been executed by Bhaskar Rao was valid or not. The second issue that came up for consideration is whether the properties that were said to have been allotted to the minor children in that family partition, which were said to be in the possession of the tenants, have to be excluded from the holding of the declarant. Considering the fact that the lands allotted to the minor children were in the possession of the tenants and once when the lands are in possession of the tenants, they have to be excluded from the holding of the declarant, it was held that the lands in possession of the tenants were liable to be excluded from the declarant’s holdings. It has to be seen that in that case, the lands were not excluded from the holding of the declarants on the ground that they were allotted to the minor children, but since those lands were in possession of the tenants, on that ground they were excluded from the holding of the declarants. So, the facts of that case are clearly distinguishable from the facts of the case on hand. 15. It is true that a direction was given by this Court in W.P.No.1691 of 1996 to the Primary Tribunal to consider the points raised by the declarants, but since the order of the Primary Tribunal is not in accordance with the definition of the family unit and against the settled legal position, the same was set aside by the lower appellate Tribunal. Moreover, the lower appellate Tribunal also found that the declarant had already raised these points on prior occasions and was unsuccessful and now he cannot raise those pints again at the stage of surrender proceedings. Moreover, the decisions of this Court in cases between Ponnam Chandrasekhara Rao and others Vs. State of A.P.[4] and Konda Venugopala Raju Vs. State of A.P.[5]make it clear that at the stage of surrender proceedings, no fresh points affecting the holdings already determined can be raised. 16. In view of the above and for the foregoing reasons, I do not find any illegality or irregularity in the order passed by the lower appellate Tribunal. Both the Civil Revision Petitions fail and are liable to be dismissed. 17. Accordingly, both the Civil Revision Petitions dismissed. No costs. ___________________________ Justice B.Chandra Kumar ______ March, 2011 Bvv [1] 1977 ALT 233 [2] 1977 ALT 51 [3] 1994 (1) APLJ 37 (SC) [4] 1994 (1) ALT 133 [5] 1996 (3) ALT 679