Gadde James and Others Vs. Kolla Upendra Babu and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/437382
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided OnApr-21-2000
Case NumberAS No. 2328 of 1986
JudgeB. Prakash Rao, J.
Reported in2000(4)ALD115; 2000(3)ALT511
ActsCode of Civil Procedure (CPC), 1908 - Sections 9 and 144; Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act
AppellantGadde James and Others
RespondentKolla Upendra Babu and Another
Appellant AdvocateMr. K. Somakonda Reddy, Adv.
Respondent AdvocateMr. B.V. Subbaiah, Adv.
Excerpt:
(i) civil - jurisdiction of civil courts - section 9 of code of civil procedure, 1908 and andhra pradesh land reforms (ceiling on agricultural holdings) act, 1973 - plaintiff's land taken over by state government under andhra act - land taken over was more than actually required to be taken over - plaintiff filed suit for possession by way of restitution - defendant resisted suit on ground that civil court has no jurisdiction under andhra act - court opined plaintiff cannot approach civil court as andhra act expressly bars jurisdiction of civil court - plaintiff entitled to get relief under land reforms act only. (ii) restitution - section 144 of code of civil procedure, 1908 - plaintiff sought to invoke section 144 to claim restitution of land - section 144 applicable only when decree or order of court is varied - held, plaintiff cannot invoke section 144 as no decree or order of court is involved. - 1. defendants 2 to 4, 7, 8 and 10 to 14 are the appellants in this appeal challenging the judgment and decree in os no.10 of 1982 dated 1-4-1985 on the file of the subordinate judge at chirala wherein the suit filed for recovery of possession of the suit schedule property by way of restitution was decreed.2. the plaintiff claims that in the land ceiling proceedings arising under the provisions of the andhra pradesh land reforms (ceiling on agricultural holdings) act, 1973 (for short 'the act'), he was found in excess to an extent of 0.2728 family holdings and he surrendered ac.7-55 1/2 cents to the defendant no.1, who is the government, in the proceedings in cc no.1295/clx/75. however, in appeal, as per the orders in lra no.91 of 1979 dated 9-1-1980, the extent of excess holding was modified and reduced to 0.1022 standard holding. therefore, he filed a petition before the defendant no.1 for restitution of the excess land surrendered i.e., to an extent of ac.3-97 cents. even as per the plaint allegations, the land, in the meanwhile, was distributed on assignment amongst defendants 2 to 14 as beneficiaries and they are in possession. hence the suit for possession by way of restitution.3. defendants 2 to 14 have remained ex parte. in the written statement of defendant no.l, the only plea taken is that the civil court has no jurisdiction under the provisions of the act.4. on these allegations, the court below had framed the issues. during the trial, the plaintiff examined himself as pw1 and marked exs.a1 to a6. none were examined on behalf of the defendants and no documents were marked.5. on a consideration of the evidence so let in on behalf of the plaintiff, the suit was decreed directing the defendant no. 1 to deliver the suit schedule land.6. in this appeal, sri k. somakonda reddy, learned counsel for the appellants sought to challenge the judgment and decree of the court below on the ground that admittedly the proceedings, pursuant of which the plaintiff is seeking restitution, were under the provisions of the act, which itself is a self contained code as to the remedies available thereunder and in view of the fact that prior to the order of variation, the land having already been assigned to defendants 2 to 14, the question of restitution does not arise.7. on behalf of the respondent no.1-plaintiff, it was stated that the restitution as sought for is only in pursuance of the variation of the excess holding and the state cannot take the land over and above the excess found and thus the plaintiff would be entitled to restitution.8. in view of these rival contentions, the question which arises for consideration in this appeal is whether the suit as filed for possession by way of restitution in pursuance of the variation of the excess holding under the act is maintainable?9. admittedly, the plaintiff was found in excess in the land ceiling proceedings by the primary tribunal initiallyto an extent of 0.2728 family holdings and the same was varied in the appeal by the orders in lra no.91 of 1979 dated 9-8-1980 reducing the excess extent to 0.1022 standard holdings. in the meanwhile, the plaintiff had surrendered ac.7-55 cents and odd which in fact goes beyond the excess holding i.e., 0.1022 standard holding. the land surrendered in excess of the determination comes to ac.3-97 cents. it is in pursuance of these land ceiling proceedings, the suit is filed for possession by way of restitution.10. the code of civil procedure provides for restitution under section 144 that too only in a case where a decree or order of a court is varied and in the meanwhile if any step is taken in pursuance thereof and it is that portion alone which can be sought for by way of restitution. however, in this case, there is no such decree or variation by a civil court nor it is the case of the plaintiff that there are any such orders. as already stated supra, the act is a self contained code in itself providing for various remedies at different levels including at the stage of surrender. no doubt, there is an excess extent of land lying with the government on the subsequent variation in the standard holding of the respondent no.1-plaintiff. therefore, the remedy of the plaintiff is only to approach the very same authorities under the act either for restitution or compensation etc. it is also not denied that defendants 2 to 14 are the assignees or the beneficiaries to whom the excess land surrendered by the plaintiff was assigned and admittedly they are in possession. it has been held by the apex court that in the event of any such variations and during the proceedings if possession is taken and the excess land is allotted to the beneficiaries, the declarant would not entitled to get back the land as the third party rights have already set in. the only alternative in such cases would be to seek for compensation.11. be that as it may, the civil court has no jurisdiction in respect of the matters for which ample remedies are provided and authorities are constituted therefor under the aci. thus the suit as filed by the plaintiff is not maintainable and the question of any restitution by any civil court does notarise. section 144 of the code of civil procedure contemplates specifically that in so far as a decree or an order is varied or reversed in any appeal, revision or other proceedings or set aside or modified in any suit instituted for the purpose, the court which passed the decree or order can entertain any such application. 12. in view of the same, it has to be held that the suit is not the proper remedy for the plaintiff to seek any relief of restitution of land. accordingly, the appeal is allowed and the judgment and the decree of the court below are set aside. in the circumstances, there shall be no order as to costs.
Judgment:

1. Defendants 2 to 4, 7, 8 and 10 to 14 are the appellants in this appeal challenging the judgment and decree in OS No.10 of 1982 dated 1-4-1985 on the file of the Subordinate Judge at Chirala wherein the suit filed for recovery of possession of the suit schedule property by way of restitution was decreed.

2. The plaintiff claims that in the land ceiling proceedings arising under the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short 'the Act'), he was found in excess to an extent of 0.2728 Family holdings and he surrendered Ac.7-55 1/2 cents to the defendant No.1, who is the Government, in the proceedings in CC No.1295/CLX/75. However, in appeal, as per the orders in LRA No.91 of 1979 dated 9-1-1980, the extent of excess holding was modified and reduced to 0.1022 standard holding. Therefore, he filed a petition before the defendant No.1 for restitution of the excess land surrendered i.e., to an extent of Ac.3-97 cents. Even as per the plaint allegations, the land, in the meanwhile, was distributed on assignment amongst defendants 2 to 14 as beneficiaries and they are in possession. Hence the suit for possession by way of restitution.

3. Defendants 2 to 14 have remained ex parte. In the written statement of defendant No.l, the only plea taken is that the civil Court has no jurisdiction under the provisions of the Act.

4. On these allegations, the Court below had framed the issues. During the trial, the plaintiff examined himself as PW1 and marked Exs.A1 to A6. None were examined on behalf of the defendants and no documents were marked.

5. On a consideration of the evidence so let in on behalf of the plaintiff, the suit was decreed directing the defendant No. 1 to deliver the suit schedule land.

6. In this appeal, Sri K. Somakonda Reddy, learned Counsel for the appellants sought to challenge the judgment and decree of the Court below on the ground that admittedly the proceedings, pursuant of which the plaintiff is seeking restitution, were under the provisions of the Act, which itself is a self contained code as to the remedies available thereunder and in view of the fact that prior to the order of variation, the land having already been assigned to defendants 2 to 14, the question of restitution does not arise.

7. On behalf of the respondent No.1-plaintiff, it was stated that the restitution as sought for is only in pursuance of the variation of the excess holding and the State cannot take the land over and above the excess found and thus the plaintiff would be entitled to restitution.

8. In view of these rival contentions, the question which arises for consideration in this appeal is whether the suit as filed for possession by way of restitution in pursuance of the variation of the excess holding under the Act is maintainable?

9. Admittedly, the plaintiff was found in excess in the land ceiling proceedings by the primary Tribunal initiallyto an extent of 0.2728 family holdings and the same was varied in the appeal by the orders in LRA No.91 of 1979 dated 9-8-1980 reducing the excess extent to 0.1022 standard holdings. In the meanwhile, the plaintiff had surrendered Ac.7-55 cents and odd which in fact goes beyond the excess holding i.e., 0.1022 standard holding. The land surrendered in excess of the determination comes to Ac.3-97 cents. It is in pursuance of these land ceiling proceedings, the suit is filed for possession by way of restitution.

10. The Code of Civil Procedure provides for restitution under Section 144 that too only in a case where a decree or order of a Court is varied and in the meanwhile if any step is taken in pursuance thereof and it is that portion alone which can be sought for by way of restitution. However, in this case, there is no such decree or variation by a civil Court nor it is the case of the plaintiff that there are any such orders. As already stated supra, the Act is a self contained code in itself providing for various remedies at different levels including at the stage of surrender. No doubt, there is an excess extent of land lying with the Government on the subsequent variation in the standard holding of the respondent No.1-plaintiff. Therefore, the remedy of the plaintiff is only to approach the very same authorities under the Act either for restitution or compensation etc. It is also not denied that defendants 2 to 14 are the assignees or the beneficiaries to whom the excess land surrendered by the plaintiff was assigned and admittedly they are in possession. It has been held by the Apex Court that in the event of any such variations and during the proceedings if possession is taken and the excess land is allotted to the beneficiaries, the declarant would not entitled to get back the land as the third party rights have already set in. The only alternative in such cases would be to seek for compensation.

11. Be that as it may, the civil Court has no jurisdiction in respect of the matters for which ample remedies are provided and authorities are constituted therefor under the Aci. Thus the suit as filed by the plaintiff is not maintainable and the question of any restitution by any civil Court does notarise. Section 144 of the Code of Civil Procedure contemplates specifically that in so far as a decree or an order is varied or reversed in any appeal, revision or other proceedings or set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order can entertain any such application.

12. In view of the same, it has to be held that the suit is not the proper remedy for the plaintiff to seek any relief of restitution of land. Accordingly, the appeal is allowed and the judgment and the decree of the Court below are set aside. In the circumstances, there shall be no order as to costs.