(A) Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (Act 9 of 1977) — Ss. 2, 3, 4 — Applicability — Assignments made prior to 18-06-1954 — Whether transfers prior to that date are hit by the Act — Held, No.
Where the Government assigned land by patta on 10-09-1920, i.e., prior to 18-06-1954, the assignment falls outside the operation of the Act. By virtue of G.O.Ms.No.1142, Revenue, dated 18-06-1954, and subsequent G.O.Ms.No.575, Revenue (Assignment-I) Department, dated 16-11-2018, Government lands assigned prior to 18-06-1954 stand deleted from the purview of Sec. 22-A of the Registration Act, 1908 and are not governed by Act 9 of 1977.
Hence, alienations made in 1964 based on such prior assignments cannot be declared null and void under the Act.
Held: Provisions of Act 9 of 1977 not applicable.
(Paras 16–24)
[Followed: Shaik Abdul Kalam Azad v. A. Babu, 2017 (2) ALD 214 (AP)]
(B) Limitation Act, 1963 — Art. 58, Art. 65 — Partition — Long possession by third parties — Suit filed after 27 years — Maintainability — Held, Barred by limitation.
Where the defendants had been in continuous possession of the property since 1964, constructing buildings and paying land revenue, and plaintiffs approached court for partition only in 1991 without seeking declaration of title, the suit is hopelessly barred by limitation. Continuous and open possession of more than 25 years to the knowledge of plaintiffs extinguishes their claim.
(Paras 25–27)
(C) Civil Procedure Code, 1908 — S. 96 — Appeal from original decree — Partition suits — Title of strangers — Whether adjudicable — Held, No.
In a simple partition suit, plaintiffs cannot seek adjudication of title against third parties/strangers who are not co-sharers. To challenge their ownership, a separate declaratory suit with proper valuation and court-fee is required.
Held: Title of strangers cannot be decided in a partition suit.
(Paras 29–31)
[Relied on: Trinity Infraventures Ltd. v. M.S. Murthy, 2023 SCC OnLine SC 738]
(D) Civil Procedure Code, 1908 — S. 96 — Appeal — Death of parties — Non-impleadment of legal representatives — Consequence — Discussed.
Failure to bring legal representatives on record results in partial abatement of the suit/appeal; however, in the present case, trial court’s finding on abatement not interfered with as the ultimate relief itself was refused on merits.
(Para 28)
[Referred: State of Punjab v. Nathu Ram, AIR 1962 SC 89]
(E) Practice and Procedure — Scope of relief — Partition without declaration — Effect.
Where plaintiffs value the suit as one for partition and pay court-fee on share claimed without seeking declaration of title, court cannot grant relief of declaration indirectly. Plaintiffs’ case fails.
(Paras 30–33)
Held that —
Appeals (A.S. Nos.624 & 688 of 2003) allowed.
Judgment and Decree dated 14.02.2003 in O.S. No.145 of 1991, Principal Senior Civil Judge, Guntur, set aside.
Suit dismissed. Each party to bear own costs.
APHC010572872003
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
(Special Original Jurisdiction)
[3397]
FRIDAY,THE TENTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 624/2003
Between:
Diocese Of Guntur Socy,rep By Secy & Anr and Others ...APPELLANT(S)
AND
Y Deenammadied 20 Others and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1.RAMA CHANDRA RAO GURRAM
Counsel for the Respondent(S):
1.B VASANTHA LAKSHMI
2.CH VIDYASAGAR
3.NALABOLU VENKATA PAVANKUMAR
4.RAMA CHANDRA RAO GURRAM
FIRST APPEAL NO: 688/2003
Between:
P.m. Vimala & 2 Ors and Others ...APPELLANT(S)
AND
Yanamala Deenamma Died 19 Ors and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
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1.RAMA CHANDRA RAO GURRAM
Counsel for the Respondent(S):
1.S SATYANARAYANA MOORTHY
2.A B LALITHA GAYATHRI
3.CH VIDYASAGAR
4.DAMODARA RAO THUNGANA
5.NALABOLU VENKATA PAVANKUMAR
The Court made the following:
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THE HON’BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT Nos.624 and 688 of 2003
COMMON JUDGMENT:
The Appeal in A.S.No.624 of 2003 has been filed, under Section 96 of
the Code of Civil Procedure [for short ‘the C.P.C.’], by the
Appellants/Defendant Nos.3 and 4, challenging the Decree and Judgment
dated 14.02.2003 in O.S.No.145 of 1991 passed by the learned Principal
Senior Civil Judge, Guntur [for short ‘the trial Court’].
2. The Appeal in A.S.No.688 of 2003 has been filed, under Section 96 of
the Code of Civil Procedure [for short ‘the C.P.C.’], by the
Appellants/Defendant Nos.2, 8 and 9, challenging the Decree and Judgment
dated 14.02.2003 in O.S.No.145 of 1991 passed by the learned Principal
Senior Civil Judge, Guntur [for short ‘the trial Court’].
3. Since both the appeals are filed against one Judgment and Decree,
they are clubbed together and a common judgment is being pronounced in
both these appeals.
4. Both the parties in these Appeals will be referred to as they are arrayed
before the trial Court.
5. The brief averments in the plaint in O.S.No.145 of 1991, on the file of
the Principal Senior Civil Judge, Guntur are as under:
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Originally, the suit schedule property belonged to the Government and
subsequently, the Government had assigned pattas on 10.09.1920, jointly in
favour of four (04) persons namely: 1) Ankam Jakrin, 2) Ankam Veeraiah, 3)
Ankam Peda Narasaiah and 4) Kancherla Samuel. Thereafter, Kancherla
Samuel had sold his share to the remaining three persons and Ankam Jakrin
died issueless, as such, his share was devolved on the remaining two persons
i.e., Ankam Veeraiah and Ankam Peda Narasaiah. The defendant Nos.5 to 7
and Smt. Mahalakshmamma are the successors of Ankam Veeraiah and
Ankam Ananda Rao, Smt. Yanamala Deenamma and
Smt. Gogulapati Punnamma are the children of late Ankam Peda Narasaiah.
Thereafter, Ankam Ananda Rao died and the plaintiff Nos.4 to 11 are his legal
representatives, Smt. Gogulapati Punnamma also died and
Smt. Yenamala Deenamma along with plaintiff Nos.2 and 3 are her legal
representatives. Therefore, the plaintiffs constitute of one branch i.e., Ankam
Peda Narasaiah and the defendant Nos.5 to 7 constitute of another branch
i.e., Ankam Veeraiah. Each branch is entitled to half of the share in the suit
schedule property i.e., to an extent of Ac.3.16 cents. Therefore, both the
branches are entitled to an extent of Ac.1.58 cents each. While so, the
defendant Nos.5 to 7, without the knowledge and consent of the plaintiffs, sold
land to an extent of Ac.2.00 acres to the defendant Nos.1 and 2.
The defendant Nos.1 and 2 filed a suit in O.S.No.1385 of 1987, on the
file of the III Additional Munsif Magistrate Court, Guntur against some of the
plaintiffs and defendants herein, seeking for permanent injunction. Further,
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when the plaintiff Nos.4 to 11 have tried to sell some portion of the suit
schedule property to the defendant No.4 without the knowledge and consent
of the plaintiff No.1 and one Smt. Gogulapati Punnamma, who is the mother of
the plaintiff Nos.2 and 3, the plaintiff No.1 had filed a suit in O.S.No.513 of
1987, on the file of the Principal Sub-Court, Guntur, against the plaintiff Nos.4
to 11, defendant No.4 and the Sub-Registrar, Guntur, seeking for partition. A
preliminary decree has been passed in O.S.No.513 of 1987 and subsequently,
the matter was compromised between the parties. At this stage, the defendant
No.3 had filed O.S.No.1350 of 1988, on the file of the III Additional Munsif
Magistrate Court, Guntur, against some of the plaintiffs and the defendant
Nos.5 to 7, seeking for permanent injunction. The defendant No.4 was
impleaded in O.S.No.513 of 1987, but he never claimed any share in the suit
schedule property. The aforesaid suit had been filed before the Principal Sub
Court, Guntur, seeking for partition of the suit schedule property between the
plaintiffs and the defendant Nos.1 and 2. As the defendant Nos.8 and 9 had
purchased the property from the defendant No.2, they were also added as the
parties to the suit before the court below. Hence, the suit.
6. The brief averments in the written statement filed by the defendant
Nos.1 and 2 are as follows:
Originally, the dry land to an extent of Ac.2.16 cents is situated at
Nallpadu Village, bearing Patta No.512 and D.No.566-A out of Ac.3.16 cents.
The said land was belonged to one Ankam Veeraiah and he died in the year
1946 leaving behind his wife Smt. Mahalakshmi and son Nagaiah @
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Prakasam. After the death of the said Ankam Veeraiah, his wife Smt.
Mahalakshmi, son Nagaiah and his children namely Yesudas and
Ms. Sowri, being minors represented by their next friend and guardian father
Nagaiah, have sold the aforesaid dry land admeasuring Ac.2.16 cents to one
Booragadda Simon, for a sum of Rs.400/-, under a registered sale deed dated
21.01.1964. Thereafter, Mr. Simon is in possession and enjoyment of the
property by paying land revenue to the Government and he also perfected his
title by way of adverse possession of the suit schedule property.
Subsequently, Mr. Simon died on 06.08.1978, leaving behind his wife, who is
defendant No.1 and his daughter, who is the defendant No.2 as the owners of
the subject property. While so, when Ankam Nagaiah and his men tried to
interfere with the possession of the defendant Nos.1 and 2 over the schedule
property, the defendant Nos.1 and 2 had filed a suit in O.S.No.1384 of 1987,
on the file of the III Additional Munsif Magistrate, Court, Guntur and the same
was decreed by the trial Court on 26.07.1990. Thereafter, no appeal has been
preferred on the decree and judgment passed by the Court below in
O.S.No.1384 of 1987. Hence, it is prayed to dismiss the suit.
7. The brief averments in the written statement filed by the defendant No.3
are as follows:
Originally, the suit schedule property belongs to the Government and it
has assigned the land in favour of some persons in the year 1920. Thereafter,
as the said persons have violated the conditions, the Government had
cancelled the Pattas. The defendant No.3 had purchased the property to an
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extent of Ac.1.05 cents in D.No.566/A from one Pancha Paramayya under a
registered sale deed, dated 17.02.1964 and the defendant No.2 had gifted the
subject property to the defendant No.4. The defendant No.4 had also
purchased the adjoining site to the suit schedule property and constructed a
pucca building and hostels, for the purpose of running a college and the suit
schedule property is in possession of the defendant No.4-college. Thereafter,
some of the defendants and the plaintiffs have filed a suit in O.S.No.513 of
1987, seeking for partition of the suit schedule property.
8. The defendant No.4 adopted the written statement filed by the
defendant No.3 and the defendant Nos.5 to 7 were remained ex parte. The
averments of the written statement filed by the defendant Nos.8 and 9 are that
they have purchased the property to an extent of Ac.2.16 cents from the
defendant No.2 under a registered sale deed dated 12.03.2001, for a valid
consideration and they are in peaceful possession and enjoyment of the suit
schedule property.
9. Based on the above pleadings, the trial Court framed the following
issues:
1. Whether the defendants 1 and 2 are the owners of Ac.2.16 cents of dry
land in D.No.566-A out of the plaint schedule land of Ac.3.16 cents?
2. Whether the defendants 1 and 2 and their predecessor perfected their
title to Ac.2.16 cents in D.No.566-A by adverse possession also?
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3. Whether the third defendant purchased Ac.1.05 cents in D.No.566-A
under Registered sale deed dated 17.02.1964 and later gifted it to
St. Joseph’s College as pleaded by him?
4. Whether the plaintiffs are entitled to partition of the plaint schedule
property and for separate possession as prayed for?
5. Whether the defendants 1 and 2 are entitled to exemplary costs?
6. To what relief?
The trial Court had also framed the following additional issues:
1. Whether the D-8 and D-9 are bona fide purchasers of written statement
schedule property?
2. Whether the D-8 and D-9 are necessary parties to the proceedings?
3. Whether the plaintiffs are entitled any share out of the property in the
written statement filed by D-8 and D-9?
10. During the course of trial in the trial Court, on behalf of the plaintiffs, the
plaintiff No.5 was examined as PW1 and Ex.A-1 to Ex.A-7 were marked. On
behalf of the Defendants, DW1 to DW5 were examined and Ex.B-1 to Ex.B-23
and Ex.X-1 were marked.
11. After completion of the trial and hearing the arguments of both sides the
trial Court decreed the suit in part vide its judgment, dated 14.02.2003, against
which the appeals in A.S.No.624 of 2003 is preferred by the defendant Nos.3
and 4 and A.S.No.688 of 2003 is preferred by the defendant Nos.2, 8 and 9, in
the suit questioning the Judgment and decree passed by the trial Court.
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12. Heard Sri G.Peddababu, learned Senior Counsel, representing on
behalf of Sri Ramachandra Rao Gurram, learned counsel for the appellants,
Sri N.Subba Rao, learned Senior Counsel, representing Sri Nelabolu Venkata
Pavan Kumar, learned counsel for the respondent Nos.22 and 24 in
A.S.No.624 of 2003 and respondent Nos.21 and 22 in A.S.No.688 of 2003
and Sri Ch.Vidya Sagar, learned counsel for the other respondents.
13. Sri G.Peddababu, learned Senior Counsel appearing for the appellants,
would contend that the Judgment and decree passed by the trial Court is
contrary to law. He would further contend that the Court below ought to have
seen that the plaintiff Nos.1 to 4 and 9 and the defendant No.1 died during the
pendency of the suit and their legal representatives were not brought on
record, as such, the suit relating to them is abated and deemed to be
dismissed under law. He would further contend that the 2nd appellant has
constructed a college in the year 1964 itself and has been in possession and
enjoyment of the same. Further, the suit is filed after 27 years, which is
hopelessly barred by the ‘Law of Limitation’ and the plaintiffs have forfeited
their title over the said property by way of adverse possession. He would
further contend that the Court below had failed to see that the suit for partition
seeking a relief for declaration of title is not maintainable and the suit is barred
by the law of limitation.
14. Per contra, learned Senior Counsel appearing for the respondents
would contend that on appreciation of the entire evidence on record, the
learned trial Judge rightly partly decreed the suit vide its judgment, dated
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14.02.2003 and there is no need to interfere with the finding given by the
learned trial Judge.
15. Now, the points for determination in the appeals are:
1. Whether the provisions of the A.P. Assigned Lands
(Prohibition of Transfers) Act, 1977 are applicable to the
present case?
2. Whether the suit is barred by the Law of Limitation?
3. Whether the plaintiffs are entitled for relief of partition as
prayed for?
16. Point No.1:
Whether the provisions of the A.P. Assigned Lands (Prohibition of
Transfers) Act, 1977 are applicable to the present case?
It is the specific contention of the plaintiffs that the Government had
issued a patta under original of Ex.A-2 dated 10.09.1920, in favour of four
persons namely:- 1) Ankam Jakrin, 2) Ankam Veeraiah, 3) Ankam Peda
Narasaiah and 4) Kancherla Samuel and any alienatition of the assigned
lands taking place prior to the commencement of the Act No.9 of 1977 shall
also be null and void and therefore, the sale deed said to have been executed
by the defendant Nos.5 to 7 and Smt. Mahalakshmamma in favour of the
husband of the defendant No.1 is null and void. The plaintiffs in the plaint had
specifically pleaded that originally, the suit schedule property belongs to the
Government and the Government had assigned patta on 10.09.1920, jointly to
four (04) person viz., 1) Ankam Jakrin, 2) Ankam Veeraiah, 3) Ankam Peda
2025:APHC:42439
Narasaiah and 4) Kancherla Samuel. The plaintiffs further pleaded that the
plaintiffs constitute of one branch i.e., Ankam Peda Narasaiah and the
defendant Nos.5 to 7 constitute of another branch i.e., Ankam Veeraiah and
each branch is entitled to half share in the suit schedule property i.e, to an
extent of Ac.1.58 cents each in Sy.No.566-A. The plaintiffs further pleaded
that the defendant Nos.5 to 7 and their mother late Smt. Mahalakshmamma
have sold the land to an extent of Ac.2.00 acres to the defendant Nos.1 and 2,
without the consent or knowledge of the plaintiffs, through a registered sale
deed dated 21.01.1964, under Ex.B-1, even though they are entitled to sell
land to an extent of Ac.1.58 cents out of Ac.3.16 cents and the defendant
Nos.5 to 7 and their mother late Smt. Mahalakshmamma have no right to
execute the sale deed for Ac.2.00 acres of land under Ex.B-1 in favour of the
defendant Nos.1 and 2.
17. The material on record goes to show that the plaintiff No.1, one
Smt. Gogulapati Punnamma has filed O.S.No.513 of 1987, against the plaintiff
Nos.5 and 6, seeking for partition of Ac.1.00 acre of land out of the suit
schedule property and the said suit was ended in compromise. The plaintiff
No.5/PW1 has admitted the same in his evidence at cross-examination itself
about the filing of suit in O.S.No.513 of 1987 and also the same has ended
with compromise. The material on record further reveals that the execution
proceedings vide E.P.No.15 of 1994 is also filed by the plaintiff seeking for
delivery of possession and the Ameen visited the E.P., schedule property and
subsequently, in view of the obstructions, the petitioner in E.P.No.15 of 1994
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had filed applications seeking to remove the structures as well as the
obstructions in the suit schedule property.
18. In order to prove the case of the plaintiffs, the plaintiff No.5 alone is
examined as PW1. PW1 admits in his evidence in cross-examination itself that
the plaint schedule land is divided into plots and he pleaded ignorance about
the contract of sale dated 05.04.1999, registered notice dated 10.05.2000 and
also the registered sale deed dated 12.03.2001, referred in the written
statement. He admits in his evidence that the Ex.A-1 is registered sale deed
dated 12.03.2001, in the name of the defendant Nos.8 and 9, executed by the
defendant No.2 and others. He further admits that, there is no documentary
evidence to show that one of the patta-holder by name
Samuel has sold his share to the other three (03) patta-holders. He also
admitted about the filing of the suit in O.S.No.1358 of 1988 by the 3rd
defendant, before the III Additional District Munsif, Guntur and he was shown
as the defendant No.4 in that suit and the defendant No.3 had obtained an
injunction in the said suit. He also admits about the filing of the partition suit
vide O.S.No.513 of 1987, by the plaintiff No.1 and others and the same is
ended with compromise. He further admits that he did not file any suit for
declaration of title with regard to the suit schedule property and he had filed
the suit seeking for partition of the plaint schedule property.
19. The trial Court had held in its judgment that as per the Act No.9 of 1977,
the alienation made by the assignee or their parties is non-est in the eye of
law either before the commencement of the Act No.9 of 1977 or subsequent
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there to. The trial Court further held in its judgment that the plea taken by the
plaintiffs that Kancherla Samuel, who got patta along with others had sold his
share to others cannot be taken into consideration. The trial Court had further
held that either the plaintiffs’ branch or the defendant Nos.5 to 7 branch are
not entitled to any right over the properties of one Kancherla Samuel. The trial
Court further held that Ankam Jakrin died un-married, there is no evidence to
show that Ankam Veeraiah and Ankam Peda Narasaiah are the legal
representatives of Ankam Jakrin or not and the plaintiff did not file any
evidence to show that the said Ankam Veeraiah and Ankam Peda Narasaiah
are the legal representatives of Ankam Jakrin, who died
un-married/intestate. The trial Court by referring the Act No.9 of 1977, held
that the defendant Nos.1 and 2 did not get any right or interest under Ex.B-1
property, since those lands are assigned lands, those are not alienable and
that the sale deeds said to have been executed under
Ex.A-1 and Ex.B-1 are null and void. The trial Court had held that the
defendant Nos.1 and 2 have no salable interest over the properties that are
sold to the defendant Nos.8 and 9, under the cover of Ex.A-1 sale deed. The
fact remains that Ankam Veeraiah’s branch i.e., defendant Nos.5 to 7 along
with their late mother Smt. Mahalakshmamma have alienated Ac.2.16 cents
out of Ac.3.16 cents of the suit schedule property under Ex.B-1 registered sale
deed dated 25.01.1964, in favour of the husband of the defendant No.1 by
name Simon. The material on record reveals that an extent of Ac.2.16 cents of
dry land originally belongs to one Ankam Veeraiah, who was enjoying the
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same with absolute rights and he died by leaving his wife Smt.
Mahalakshmamma and his son Nagaiah @ Prakasam. After the death of the
said Ankam Veeraiah, his wife Smt. Mahalakshmi, son Nagaiah and his
children, namely Yesudas and Sowri being minors, represented by their next
friend and guardian father Nagaiah, have sold the dry land admeasuring
Ac.2.16 cents to one Booragadda Simon, for a sum of Rs.400/-, under a
registered sale deed dated 21.01.1964. Thereafter, Mr. Simon is in
possession and enjoyment of the property by paying land revenue to the
Government. The material on record further reveals that the said Simon died
on 06.08.1978, leaving behind his wife i.e., the defendant No.1 and his
daughter i.e., the defendant No.2 and succeeded the property to Mr. Samuel.
The material on record reveals that the Revenue authorities had also
recognized their possession and enjoyment over the land to an extent of
Ac.2.16 cents in the plaint schedule.
20. Learned counsel for the respondents would contend that the question of
whether the transfer of assigned lands is void or not, would arise only in cases
where they are able to substantiate that the assigning patta or the patta which
was granted in favour of the plaintiffs’ ancestors contained a clause of
prohibiting such transfers. The respondents further contended that there is
neither evidence nor pleading on record to show that the provisions of the A.P.
Assigned Lands (Prohibition of Transfers) Act are not applied to the present
case and for the first time, the appellants have contended that any alienation
made before 18.06.1954 are valid.
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21. As seen from the plaint averments, the plaintiff pleaded in the plaint
itself that the plaint schedule property belongs to the Government and the
Government has given the assignment patta on 10.09.1920, jointly in favour of
Ankam Jakrin, Ankam Veeraiah, Ankam Peda Narasaiah and Kancherla
Samuel. The learned trial Judge held in its judgment that as per the Act No.9
of 1977, alienation made by the assignee or their parties is non-est in the eye
of law either before the commencement of the Act No.9 of 1977 or subsequent
there to. The trial Court has observed in its judgment that in view of the Act
No.9 of 1977, the alienation that has been made by the defendant Nos.1 and
2 in favour of the defendant Nos.8 and 9 and the alienation made by the
defendant Nos.5 to 7 in favour of the defendant No.2 are null and void and
thus, the said transactions are considered to be the void transactions. The
present appeal suits i.e., A.S.No.624 of 2003 is preferred by the defendant
Nos.3 and 4 and A.S.No.688 of 2003 is preferred by the defendant Nos.2, 8
and 9, but, no cross objections are filed either by the plaintiffs or the remaining
parties in the suit proceedings.
22. In a case of Shaik Abdul Kalam Azad and Ors. Vs. A. Babu and
Ors.1
, the Composite High Court of Andhra Pradesh held as follows:-
“7. The petitioners submitted an explanation thereto on 21.12.2015
stating that they are bona fide purchasers of the land; that the land
was assigned on 24.6.1919 by the then District Collector, Krishna
District in proceedings RC No. 384 of 1917, to one Abdul Jaleel; that
several sale transactions were entered into in respect of the land
1
2017 (2) ALD 214
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much before the commencement of the Andhra Pradesh Assigned
Lands (Prohibition of Transfers) Act, 1977; that the said Abdul Jaleel
was in fact a sepoy in the British Military Government (ExServiceman); that the assignment policy of the State Government
itself permits ex-servicemen to alienate after enjoying the land for 10
years; that G.O. Ms. No. 743, dated 30.4.1963 issued by the then
State Government had clarified that ex-servicemen were free to sell
away their assigned lands after a period of 10 years; that the sale of
the land in their favour is valid; and the respondents have no
jurisdiction to interfere with the land in their occupation, and there is
no violation of the provisions of the Act.”
23. In view of the aforesaid ratio laid down by the Composite High Court of
Andhra Pradesh, the provisions of the A.P. Assigned Lands (Prohibition of
Transfers) Act has no application in respect of lands assigned prior to the date
i.e., 18.06.1954 by virtue of G.O.MS.No.1142, dated 18.06.1954. Even, as per
the pleadings in the plaint, the patta was granted in the year 1920 under
Ex.A-2. Copy of G.O.Ms.No.1142 dated 18.06.1954, is also filed by the
appellants. Learned Senior Counsel for the appellants has brought to the
notice of this Court that the Government of Andhra Pradesh through
G.O.Ms.No.575, Revenue (Assignment-I) Department, dated 16.11.2018, has
ordered deletion of Government lands assigned prior to 18.06.1954, from the
purview of Section 22-A of the Registration Act, 1908. The learned trial Judge
had held in its judgment that the alienation of Ac.2.16 cents of land out of
Ac.3.16 cents under Ex.B-1 is non-est. Therefore, the said finding given by the
learned trial Judge is incorrect and the same is liable to be set-aside.
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24. For the aforesaid reasons and in view of the ratio laid down in the
aforesaid case law, it is held that the provisions of the A.P. Assigned Lands
Act, 1977, are not applicable to the present case. Accordingly, the point No.1
is answered in favour of the appellants.
25. Point No.2:-
Whether the suit is barred by the Law of Limitation?
It was contended by the defendant No.3 that he had purchased Ac.1.05
cents in D.No.566/A from one Pancha Paramayya, under a registered sale
deed dated 17.02.1964 and prior to the purchase of the said property, the
defendant No.4 had purchased the adjoining site and the Defendanat No.4-
college had constructed a pucca building and hostels, for the purpose of
running a college and from time-being, the suit schedule property is in
possession of the defendant No.4-college management. It is admitted by the
plaintiffs that the plaintiff No.1 and Smt. Gogulapati Punnamma have filed a
suit in O.S.No.513 of 1987, against the plaintiff No.5 and others, seeking for
partition of Ac.1.00 acre out of Ac.3.16 cents. The defendant No.4 and the
Sub-Registrar, Guntur were also made as parties to the said suit and no relief
is sought against the defendant No.4. It is admitted by PW1 that the suit in
O.S.No.513 of 1987 was ended in compromise. The material on record
reveals that the defendant No.4 had filed claim applications vide E.A.Nos.186
and 187 of 1994 in E.P.No.15 of 1994 and those applications are allowed.
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26. As seen from the material on record, the western boundary under
Ex.B-1 is shown as land of Mr. Dasari Allaiah, who is one of the vendors
under Ex.B-17 sale deed, under which the defendant No.3 purchased the land
to an extent of Ac.1.05 cents in the year 1964. The Eastern boundary of item
No.1 of the property under Ex.B-17 is the land of Mr. Booragadda Simon, i.e.,
the vendee under Ex.B-1. The revenue records filed in the present suit shows
that the defendant No.4 is in the physical possession, cist was paid in the
name of the defendant No.4 and no objections are raised at any point of time
by the plaintiffs until 1987, in which year the plaintiffs have raised a dispute for
the first time with regard to the possession and mutation of the name of the
defendant No.4 in the revenue records. There is ample evidence on record to
show that the plaintiffs are not in the possession of the said property for more
than 25 years.
27. As stated supra, the plaintiffs are not in the possession of the schedule
property for more than 25 years. The suit for partition is filed in the year 1991
i.e., more than 25 years from the date of knowledge of the plaintiffs. There is
ample evidence on record to show that the defendant Nos.3 and 4 have been
in possession over Ac.1.05 cents of land under Ex.B-17 from 1964 onwards
and the same is proved by way of documentary evidence. The defendant
Nos.3 and 4 are not the co-owners or the co-sharers; they are the third
parties. It is evident that the defendant Nos.3 and 4 are in long and
uninterrupted possession over Ac.1.05 cents of land for more than 25 years to
the knowledge of one and all including the plaintiffs. It is undisputed by the
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plaintiffs that the defendant Nos.5 to 7 and their mother late Smt.
Mahalakshmamma have sold Ac.2.00 acres of land to the defendant Nos.1
and 2, through registered sale deed under Ex.B-1 in the year 1964 itself. The
plaintiffs pleaded that the defendant Nos.5 to 7 and their mother are having
right to alienate Ac.1.58 cents only, but not Ac.2.00 acres. The plaintiffs have
approached the trial Court in the year 1991 for seeking relief for partition of the
plaint schedule property without seeking relief of declaration of title. As noticed
supra, the present suit is filed after lapse of more than 25 years from the date
of disposal of the main suit. For the aforesaid reasons, the present suit is
hopelessly barred by “the Law of Limitation’”. Accordingly, point No.2 is
answered.
28. Point No.3:-
Whether the plaintiffs are entitled for relief of partition as prayed
for?
Learned Senior Counsel for the appellants would contend that the
plaintiff Nos.1, 2, 4 and 9 died, but no legal representatives are impleaded in
the suit and the remaining plaintiffs cannot legally prosecute the suit. He also
placed a reliance on The State of Punjab Vs Nathu Ram2
, wherein the
Hon’ble Apex Court held as follows:
“6. The question whether a Court can deal with such matters or not, will depend
on the facts of each case and therefore no exhaustive statement can be made about
the circumstances when this is possible or is not possible. It may, however, be stated
that ordinarily the considerations which weigh with the Court in deciding upon this
2
AIR 1962 SC 89
2025:APHC:42439
question are whether the appeal between the appellants and the respondents other
than the deceased can be said to be properly constituted or can be said to have all the
necessary parties for the decision of the controversy before the Court. The test to
determine this has been described in diverse forms. Courts will not proceed with an
appeal (a) when the success of the appeal may lead to the Court's coming to a
decision which be in conflict with the decision between the appellant and the deceased
respondent and therefore which would lead to the Court's passing a decree which will
be contradictory to the decree which had become final with respect to the same
subject matter between the appellant and the deceased respondent; (b) when the
appellant could not have brought the action for the necessary relief against those
respondents alone who are still before the Court and (c) when the decree against the
surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not
be successfully executed.”
In the case on hand, the trial Court discussed the said issue of
abatement in the suit and the trial Court had held that the plaintiffs are the
legal representatives of Ankam Peda Narasaiah and the relief granted by the
trial Court is that the plaintiffs’ branch is entitled to 1/4th share out of the plaint
schedule property and the defendant Nos.5 to 7 are entitled to 1/4th share out
of the plaint schedule property. The learned trial Judge further held that out of
1/4th share of the suit schedule property, the plaintiff Nos.1 to 11 each are
entitled to 1/11th share and the legal representatives of the deceased plaintiffs
are also entitled to 1/11th out of the 1/4th to be allocated to the share of the
plaintiff Nos.1 to 11.
29. Learned Senior Counsel appearing for the respondents would contend
that the defendant No.2 has sold the schedule property to the defendant
Nos.8 and 9, under an agreement of sale dated 05.04.1990 and subsequently,
the regular registered sale deed was also executed in the year 2001, in
respect of the property to an extent of Ac.2.00 acres and further, she did not
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state anywhere about how she is entitled to a share of Ac.2.16 cents by
excluding Ac.1.66 cents for roads. He would further contend that DW3 is a
person who is said to be the Secretary and Correspondent of the defendant
No.4-college and they are claiming the land to an extent of Ac.1.05 cents said
to have been in their possession and no material has been placed about the
title of the said Pancha Premaiah, who executed the deed in favour of the
defendant Nos.3 and 4. The appellants herein have relied on the
Ex.B-1 registered sale deed and Ex.B-17, which is also a registered sale deed
and both the documents relate to the year 1964. The simple suit for partition
has been filed by the plaintiffs in the year 1991, but the plaintiffs are not
seeking relief of declaration of title of the defendant No.3. Moreover, as stated
supra, the defendant No.3 is the third party and the defendant Nos.3 and 4 are
not the co-heirs of the plaintiffs. Therefore, the Court cannot decide the title of
the third parties in a partition suit filed by the plaintiffs. If the plaintiffs are
disputing the title of the defendant Nos.5 and 7 and late Smt.
Mahalakshmamma, in respect of the sale deed said to have executed by them
in favour of the husband of the defendant No.1, namely Booragadda Simon,
they have to seek for the relief of declaration of title. Moreover, the alienation
of the defendant Nos.5 to 7 and late Smt. Mahalakshmamma, in favour of the
defendant Nos.1 and 2 is referred in the plaint itself, but the plaintiffs pleaded
that without their consent, the defendant Nos.5 to 7 and late Smt.
Mahalakshmamma have alienated the property to an extent of Ac.2.00 acres,
but, they are entitled to alienate Ac.1.58 cents only.
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30. The legal position in this regard is no more res integra and the same
has been well settled by the Hon’ble Apex Court in Trinity infraventures Ltd.
and Others Vs M.S.Murthy and Others3
, wherein it was held as follows:
“ 115. In a simple suit for partition, the parties cannot assert title against strangers,
even by impleading them as proforma respondents. The strangers who are impleaded
in a partition suit, may have nothing to say about the claim to partition. But they may
have a claim to title to the property and such a claim cannot be decided in a partition
suit.”
The ratio laid down in the aforesaid case law is squarely applicable to
the present case. In the present case also, the plaintiffs are claiming relief for
partition of suit schedule property, but, they are questioning the title of the
third parties in a partition suit. The defendant Nos.3 and 4 are strangers and
they are not co-heirs of the plaintiffs.
31. The present suit is only a suit for partition and all the suit schedule
properties have been valued at a particular rate and the Court fee was paid on
the value of the share, of which the plaintiffs are seeking partition. If it was a
suit containing a prayer for declaration of title, the Court fee was liable to be
paid on the whole value of the property and not on the share said to be
partitioned.
32. The conclusions drawn by the trial Court in its judgment are that the
sale deed said to have been executed by the defendant Nos.5 to 7 and late
Smt. Mahalakshmamma, in favour of the defendant Nos.1 and 2 under Ex.B-1
registered sale deed, in the year 1964 is void and the plaint schedule property
3
2023 SCC OnLine SC 738
2025:APHC:42439
is unalienable, since the patta was issued in the year 1920, i.e., prior to the
Act No.9 of 1977. The trial Court also further came to a conclusion that the
vendors of the registered sale deed dated 17.02.1964, under Ex.B-17 has no
right over the property covered under Ex.B-17 registered sale deed. In my
view, the trial Court was therefore apparently wrong in coming to the aforesaid
conclusions.
33. For the reasons stated above and having regard to the facts of the
case, this Court is of the view that the plaintiffs have failed to establish their
case. The findings and conclusions recorded by the trial Court are not based
on proper appreciation of the evidence on record. “The judgment of the trial
Court is erroneous and cannot be sustainable and the same is liable to
be set-aside and the appeals are deserves to be allowed”.
34. Resultantly, both the appeal suits are allowed and the Judgment and
Decree dated 14.02.2003, passed by the learned Principal Senior Civil Judge,
Guntur in O.S.No.145 of 1991 is set-aside and the suit in O.S.No.145 of 1991,
on the file of the Principal Senior Civil Judge, Guntur is dismissed. Each party
do bear their own costs in the suit and the appeals.
As a sequel, miscellaneous petitions, if any, pending in the Appeals
shall stand closed.
_________________________
V.GOPALA KRISHNA RAO, J
Date:10.10.2025
SRT
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30
THE HON’BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT Nos.624 and 688 of 2003
Dt. 10.10.2025
SRT
2025:APHC:42439
