IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWELFTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.5290 OF 2003 BETWEEN G. Sankar Rao. …PETITIONER AND N. Samuel. …RESPONDENT Counsel for the petitioner: Mr. V. Mallik Counsel for the Respondent: Mr. K. Rathangapani Reddy The Court made the following: - ORDER: This revision is at the instance of the petitioner-decree holder questioning the impugned order of the Executing Court in E.P.No.150 of 2000 in O.S.No.25 of 1994 dated 07.04.2001. 2. Petitioner herein had filed a suit being O.S.No.25 of 1994 before the Principal Senior Civil Judge, Kurnool for recovery of a sum of Rs.60,183.50 ps. with future interest at 24% per annum on Rs.35,000/- based on a pronote executed by the respondent/judgment debtor. The said suit was decreed by decree of the said Court on 19.02.1998 decreeing that the respondent herein is liable to pay to the plaintiff a sum of Rs.60,183.50 ps. with future interest at 24% per annum on Rs.35,000/- from the date of plaint i.e. 30.04.1994 till 18.02.1999 (date of decree) and at 6% per annum on Rs.35,000/- from 19.02.1999 till the date of realization together with costs of Rs.6,045.25 ps. 3. The aforesaid execution petition was filed by the petitioner/decree holder seeking attachment of the immovable property viz. house property belonging to the respondent herein bearing H.No.45-185-75, Narasimha Reddy Nagar, Kurnool. 4. The respondent filed a counter to the said EP contending that the respondent has no saleable interest in the EP schedule property as the said property is in the nature of grant for the residence of the respondent as he belongs to weaker section. He also pleaded that as per the condition of grant of patta it is not alienable and as such, the said property is not attached. Xerox copy of the patta was filed along with the said counter bearing No.RCB 8979 of 1979. 5. Both the sides led evidence and the executing Court came to the conclusion that the said attached EP schedule property being an assignment in favour of the respondent/judgment debtor as per Ex.B1 xerox copy of the patta produced by the respondent, the petitioner/decree holder cannot proceed against the said property in view of the prohibition of alienation imposed against assigned lands under Section 3 of the Andhra Pradesh Assigned Land (Prohibition of Transfers) Act, 1977 (for short ‘the Act’). Consequently, the EP was dismissed and the said order is questioned in this revision. 6. Heard Mr. V. Mallik for the petitioner and Mr. Rathangapani Reddy for the respondent. 7. Learned counsel for the petitioner/decree holder contends that the executing Court committed serious error in thinking that it is an assignment covered under the Act, while it is evident from Ex.B1 patta itself that it is not relating to any land but is in respect of the very same house property and the house number itself is mentioned in the document. Learned counsel also relied upon the evidence of the respondent recorded by the executing Court as R.W.1, wherein he has stated that he is a retired RTC employee having retired about three years ago. He stated that the Government assigned the house site and thereafter he constructed the house and has produced Ex.B1 patta certificate in support of the same. He stated that he constructed the house in Government poramboke land by occupying the said land in 1960 by incurring Rs.2 or 3 lakhs to construct the house and he has paid Rs.1,000/- challan in respect of the site covered by Ex.B1 in the year 1992 and thereafter, the patta was granted to him. Learned counsel, therefore, submits that the respondent has occupied the Government land, constructed the house which bears house number as shown in the EP schedule and later on got the said house regularized by paying challan of Rs.1,000/- and thereafter, got Ex.B1 patta. Learned counsel further submits that it is not a case of assignment of land as contended by the respondent but, in fact, is a regularization of an encroached land on which the house was constructed by the respondent. Learned counsel, therefore, submits that it is not a case falling under the Act so as to claim protection by the respondent. 8. Learned counsel for the respondent/judgment debtor, on the contrary, submits that the patta itself shows that the land on which the EP schedule house stands is an assigned land and as such, prohibition under Section 3 of the Act applies. The respondent being a retired RTC employee is, therefore, rightly held to be having no right to alienate the said land and consequently, the order of the executing Court warrants no interference. 9. The point, therefore, for consideration is whether the executing Court was right in treating the EP schedule house as subject to prohibition of alienation under Section 3 of the Act. 10. A close look at the evidence adduced on behalf of the petitioner and the respondent shows that the respondent, admittedly, has occupied the Government poramboke land and constructed a house and further, the fact that he has paid challan of Rs.1,000/- and got Ex.B1 patta issued in his favour. Further, the patta itself mentions the house number of the EP schedule property and its dimensions viz. 60’ x 29’ on which the said house stands. The condition 12 of Ex.B1 patta, further, shows that at Rs.25/- per sq. yard the respondent has paid Rs.4,834/- as STO charges vide challan No.1608 dated 17.08.1992. The aforesaid, therefore, clearly shows that the respondent, in fact, got the encroached poramboke land regularized by paying the market value fixed by the Government at Rs.25/- per sq. yard and in view of that, the EP schedule house with house number already existing thereon is also mentioned in Ex.B1. The said D-form patta issued in favour of the respondent, therefore, is clearly not an assignment of land as contemplated under the Act but, in fact, is a regularization of the occupied land with EP schedule house standing thereon. The executing Court has obviously missed to notice the above circumstances and came to an erroneous conclusion as if the EP schedule house cannot be proceeded against. 11. Secondly, the prohibition contained under Section 3 of the Act is relating to transfer of assigned lands, which are assigned by the Government to landless poor persons for the purpose of cultivation or as a house site. Admittedly, the respondent is a retired APSRTC employee and in fact, the decree describes the respondent as working as Supervisor (leading hand) in APSRTC, Adoni depot. He would, therefore, not fall into the category of landless poor persons for the purpose of assignment of land as defined under the Act, apart from the fact that such assignment contemplated is with regard to land for cultivation or land as a house site. In the present case, neither it is a cultivable land nor a house site as, in fact, the house already exists thereon. Further, a larger Bench of this Court has already held that even assigned lands are the property of the assignee and it is heritable though not transferable and in the event of its acquisition the assignee would be entitled to seek compensation thereupon. (s ee LAND ACUQUISTIOIN OFFICER CUM REVENUE DIVISIONAL OFFICER v. MEKALA PANDU [AIR 2004 AP 250]) 12. Thirdly, even assuming that Section 3 of the Act applies; the prohibition contained therein is with respect to voluntary sale by the assignees and would not have application when the property is put to sale in proceedings of the Court in execution of decrees. The evidence of the petitioner shows that the respondent has sufficient capacity and means to pay the EP amount but he is purposefully evading to pay the EP amount and the respondent as R.W.1 does not even state in the chief-examination nor in the counter that he has no means to pay the EP amount but has conveniently taken a stand that the attached EP schedule house cannot be proceeded against in view of prohibition under the Act. He admits that he might have spent Rs.2 or 3 lakhs to construct the EP schedule house, which clearly establishes that the respondent has means and capacity to pay the EP amount. Thus, examining the matter from any of these angles, the order impugned in the revision is clearly unsustainable and is liable to be set aside. 13. In the circumstances, therefore, the impugned order is set aside and the executing Court shall proceed against the attached EP schedule house and realize the EP amount in accordance with law. As the impugned order of executing Court dated 07.04.2001 is now reversed, the further proceedings shall be proceeded with if the respondent does not deposit the EP amount in two equal installments, the first instalment payable by the end of April 2010 and the second by the end of June 2010 together with interest accrued as per the decree up to June 2010. The civil revision petition is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J March 12, 2010 DSK