BHUVANAGIRI MALLIKHARJUAUDU Vs. PINJALA MALLIKHARJUNUDA

JUDGEMENT

(1.) Defendants 3 to 5 in O.S.No. 246 of 1961 on the file of the Additional District Munsif, Magistrate's Court, Bapatla are the appellants in Second Appeal No. 846 of 1968 and the 1st defendant, the State of Andhra Pradesh, is the appellant in Second Appeal No. 846 of 1969. The suit was filed by the respondent No. 1 herein for a declaration that the order of the Board of Revenue, dated 11th February, 1959 is not valid and binding on the plaintiff and for specific performance of an agreement given by the 1st defendant for granting a patta for the suit land in favour of the plaintiff and for an injunction restraining defendants 2 to 5 from interfering with the plaintiff's enjoyment of the suit land. The suit land, situated in the village Kodavalivaripalem belonged to the Government, The plaintiff had encroached upon the suit land in or about the year 1946 and according to him he was in continuous possession of the suit land. In 1950 a provisional assignment was made in favour of one Ramakotayya, who was a political sufferer. The plaintiff preferred an appeal to the Collector who allowed the appeal and directed the political sufferer to choose the land elsewhere. Ramakotayya thereupon preferred a revision petition to the Board of Revenue. The Board of Revenue called for a report from the Collector who stated that the encroacher had been in continuous possession of the land from 1357, Fasli and the Board of Revenue therefore held that the provisional assignment in favour of the political sufferer was properly cancelled.

(2.) After the revision petition of the political sufferer was dismissed, the plaintiff who was the encroacher was granted a D-Form patta in 1955. He was asked to pay a sum of Rs. 250 per acre in 20 instalments. The plaintiff accordingly commenced paying the instalments, and continued to be in possession of the land. Apparently the political sufferer aggrieved by the order of the Board of Revenue dismissing his revision petition seems to have approached the Government and the Government issued a memo to the Board of Revenue to take action in the matter as it was informed that the encroacher had not been in possession in the year 1949. The Board of Revenue thereupon initiated proceedings under the Board's Standing Order 15, clause (18). It asked the plaintiff to show cause why the patta in his favour should not be cancelled as it was given under a m1stake of fact viz., that he was in continuous possession whereas in fact he was not in possession in 1949. After considering the representation of the plaintiff, the Board of Revenue passed aa order dated 11th February, 1959 which is Exhibit A-20. It observed that the grantee had represented that he was in continuous occupation of the land from 1357 Fasli and that this plea could not be accepted as it is clear from the village account that the land in question was vacant in 1359 Fasli. The Board of Revenue therefore, cancelled the assignment made by the Special Deputy Collector under the powers conferred on them under the Board's Standing Order 15, clause (18). Thereafter the land was assigned to one Nagalakshmamma the wife of Ramakotayya. Defendants 3 to 5 claim through the said Nagalakshmamma. As they sought to interfere with the possession of the plaintiff asserting their claims under the patta granted to Nagalakshmamma, the plaintiff filed the present suit for a declaration that the order of the Board of Revenue dated nth February, 1959 cancelling the patta in his favour was invalid and for a specific performance of the agreement to grant a patta in 1959 as evidenced by Exhibit A-11.

(3.) The defendants contended that the Board of Revenue exercised its powers of revision properly and cancelled the patta in favour of the plaintiff . In any event it was submitted that the civil Court had no jurisdiction to go into the question whether the order of the Board of Revenue was correct or not. It was also contended that the plaintiff could not claim specific performance of the agreement to grant a patta. The defendants also stated that the plaintiff was not in possession of the land in 1949 and the patta granted to him in 1955 was under the m1staken assumption that he was in possession and the Board of Revenue rightly revised the said order when it was brought to its notice that the patta was granted under that m1staken assumption. The trial Court after considering the evidence came to the conclusion that the plaintiff did not cultivate the suit land in 1949. It, therefore, held that he could not be treated as sivaijamadar in continuous possession of the suit land and therefore the original assignment was made in his favour under a mistake of fact and was liable to be cancelled by the Board of Revenue under the Board's Standing Order 15, clause (18), but held that the civil Court had no jurisdiction to interfere with the said order of the Board of Revenue as it had exercised its revisional powers according to law. In view of the said finding it held that the plaintiff was not entitled to specific performance of the agreement Exhibit A-11 set up by him. In the result the suit was dismissed with full costs of the 1st defendant and with half costs of defendants 3 to 5.