Gontia Kirshna Murthy vs Smt. V. Lakshmi Devi

G. Rohini, J.—This Civil Revision Petition is directed against the order dated 02-12-2006 in E.A. No. 145 of 2006 in E.P. No. 101 of 2004 in O.S. No. 69 of 2003 on the file of the Court of the Principal Senior Civil Judge, Ananthapur.

The suit was filed by the petitioner herein for recovery of money on the basis of a mortgage deed dated 05-09-2002 and the same was decreed on 03-01-2004. Pursuant thereto, the revision petitioner/decree holder filed E.P.No. 101 of 2004 for realization of the decretal amount by sale of the mortgaged property. Pending the Execution Petition, the Judgment Debtor/respondent herein filed E.A. No. 145 of 2006 u/s 151 CPC to stop the sale claiming that the E.P. Schedule property being an assigned land cannot be sold or transferred in view of the prohibition u/s 3(2) of the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (for short "the Act").

The Decree Holder/revision petitioner filed a counter stating that the prohibition of sale under the conditions of patta was only for a period of ten (10) years and since the Judgment Debtor had been in possession or the said property for more than 25 years the prohibition under the Act was not attracted. The Court below by order dated 08-12-2006 allowed E.A. No. 145 of 2006 upholding the objection raised by the Judgment Debtor. Aggrieved by the same, the present Civil Revision Petition is filed.

I have heard the learned Counsel for the petitioner. Despite notice the respondent did not choose to appear.

The learned Counsel for the petitioner while pointing out that the assignment was made in favour of the Judgment Debtor in the year 1978 and as per condition No. 12 of the patta the prohibition of alienation was only for a period of ten (10 years, contended that the sale after ten(10) years cannot be held to be illegal. In support of his submission the learned Counsel cited a decision of this Court in Shaik Bade Vs. District Collector and Others, .

It is not in dispute that the land in question is an assigned land as defined u/s 2(1) of the Act. Section 3 of the Act which prohibits the transfer of assigned land runs as under:

Prohibition of transfer of assigned lands:

(1) Where before or after the commencement of this Act any land has been assigned by the Government to a landless poor person for purposes of cultivation or as a house-site then, notwithstanding anything to the contrary in any other law for the time being in force or in the deed to transfer or other document relating to such land, it shall not be transferred and snail be deemed never to have been transferred; and accordingly no right or title in such assigned land shall vest in any person acquiring the land by such transfer.

(2) No landless poor person shall transfer any assigned land, and no person shall acquire any assigned land, either by purchase, gift, lease, mortgage, exchange or otherwise.

(3) Any transfer or acquisition made in contravention of the provisions of Sub-section (1) or Sub-section (2) shall be deemed to be null and void.

(4) The provisions of this Section shall apply to any transaction of the nature referred to in Sub-section (2) in execution of a decree or order of a Civil Court or of any award or order of any other authority.

(5) Nothing in this Section shall apply to an assigned land which was purchased by a landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement of this Act and which is in the possession of such person for purpose of cultivation or as a house-site on the date of such commencement.

As could be seen from the language of the above provision, it is clear that the, prohibition of transfer is absolute and Sub-section (4) makes it clear that the said-prohibition applies even to execution of a Decree or Order of a Civil Court. In the circumstances, the contention of the petitioner that the prohibition of transfer is only for a period of ten (10) years from the date of assignment, cannot be accepted. In Shaik Bade''s case (1 supra) the petitioner therein was a purchaser from the assignee who was granted the assignment as an Ex-serviceman. The said sale was effected after a period of ten years from the date of assignment. However, when the petitioner was sought to be dispossessed by the Mandal Revenue Officer, the said action was challenged and it was held by this Court that since the ban period of alienation expired long back, the assignee was entitled to alienate the subject land. The said decision was rendered following the ratio laid down in the earlier decision that an Ex-serviceman was not prohibited to sell his assigned lands after ten years from the date of issuance of patta.

It is also relevant to note that the prohibition under the Act was not considered in the said decision while upholding the sale in favour of the petitioner therein.

In the circumstances, the objection raised by the Judgment Debtor cannot be rejected on the basis of Shaik Bade''s case. Hence the Court below was justified in allowing E.A. No. 145 of 2006 and the order under Revision did not suffer from any material irregularity in exercise of jurisdiction conferred under law.

Therefore the Civil Revision Petition is dismissed. No costs.