1. Plaintiffs' suit O.S No. 232 of 1963, for declaration of their title to the suit lands and for permanent injunction, was dismissed by the District Munsif Narasaraopet and appeal A.S No. 154 of 1970, against the judgment and decree of the trial court, was also dismissed by the first appellate Court. Hence this second appeal by the plaintiff.
2. The material facts are:—Plaintiffs purchased Ac. 8.05 cents out of Ac. 9-53 cents of land, comprised in Demarcation Nos. 546/1 and 553, situated at Poonur village for Rs. 1000/- from defendant No. 3, Meka Rosaiah, under a registered sale-deed dated 27-8-1962 (Ex. A.1). Ever since the date of purchase, plaintiffs have been in possession and enjoyment of the said lands. Defendant No. 1 is a rich and powerful man. He has been trying to interefere with the plaintiff's peaceful possession and enjoyment of the said lands. Four days before the institution of the suit, when the plaintiffs were actually ploughing the lands by engaging their caste men, the defendants obstructed the plaintiffs and threatened them and their men. With those averments, the plaintiffs filed the above suit. Defendant No. 2 filed a written statement, which was adopted by defendant No. 1. The 2nd defendant contended that the sale-deed in favour of the plaintiffs is a sham and nominal document brought about by defendant No. 3 who is closely related to the plaintiffs. The 2nd defendant purchased Ac. 3.30 cents of land, in Demarcation No. 546/1 and Ac. 4,20 cents in D. No. 552/1 from Meka Rosaiah, defendant No. 3, under an agreement of sale dated 10-5-1950 for a consideration of Rs. 5,000/- and took delivery of the same on the date of the agreement. Since the 2nd defendant has been in continuous possession and enjoyment of the said lands, in his own right and to the knowledge of one and all, defendant No. 3 executed a registered sale-deed in favour of defendant No. 2 on 12-12-1952 (Ex. B.2). Out of the said Ac. 3.30 cents in D. No. 546/1, the 2nd defendant sold 0.25 cents of land to one Chukkapalli Seshamma, under a registered sale-deed, dated 14-10-1956 (Ex. B.6) Chukkapalli Seshamma is a necessary party and the suit was bad for non-joinder of a necessary party. The remaining portion of the land was in his personal cultivation or under the cultivation of a tenant to whom he had given on lease. Defendant No. 2 has been in continuous possession of the said land and has perfected his title by adverse possession. Since the suit land is the subject-matter of the grant by the Government, the Civil Court has no jurisdiction to adjudicate upon the legal effects of the sale-deed dated 16-5-1950 in favour of defendant No. 2, because the grantor Government alone is entitled, if at all, to resume it.
3. Defendant No. 3 filed a separate written statement. The said land was granted in favour of persons belonging to depressed classes. The main condition of the grant was that alienation of the same in favour of persons belonging to non-depressed classes would be void. The sale by him to the plaintiffs is true and supported by consideration. Defendant No. 3 did not execute any agreement of sale in favour of defendant No. 2. He did not receive the consideration of Rs. 5,000/- from defendant No. 2. It is true that the 3rd defendant executed a sale-deed dated 12-12-1952 in favour of defendant No. 2 but consideration was not paid, on the understanding that Defendant No. 2 would pay the same after enquiry into the validity of the sale. The 2nd defendant thereafter, did not pay any consideration under the sale-deed and he was not even put in possession of those lands. The sale-deed remained a dead letter and it was not acted upon. It is the 3rd defendant that has been paying the land-revenue till he sold the lands to the plaintiffs. Defendant No. 3 being meek and submissible and the 2nd defendant being a very rich and powerful person, he could not take back the document of sale from defendant No. 2. Defendant No. 2 is closely related to the village Munsiff.
4. On those pleadings, 10 issues were framed by the trial court. The crucial issues are;—
“(1) Whether the sale-deed dated 27-8-1962 in favour of the plaintiffs is true and valid?
(2) Whether the plaintiffs have got title to and possession of the suit sale land if not whether they are entitled for the relief prayed for?’
5. Additional issues framed on 17-9-1964
“(1) Whether the alienation of the suit land in favour of the 2nd defendant is invalid and inoperative?
(2) Whether the sale in favour of the plaintiffs is not supported by consideration’?
6. Additional issues framed on 19-10-1964.
“(1) Whether the 2nd defendant has perfected his title by adverse possession?
(2) Whether the Civil Court has no jurisdiction to entertain the suit?
Issues 1 and 2 framed originally, and additional issue No. 2 framed on 17-5-64 were held against the plaintiffs, and the other issues in favour of the 2nd defendant. In view of those findings and the findings on other issues, the trial court dismissed the plaintiffs' suit with costs of the 2nd defendant.
7. Aggrieved by the above judgment and decree of the trial Court, the plaintiffs filed A.S No. 154 of 1970 in the Court of the Subordinate Judge, Chirala. The first appellate Court framed the following four points for its consideration;—
‘(1) Whether the sale in favour of the 2nd defendant is invalid and in-operative and it violates the conditions laid down in Depressed Class Grants?
(2) Whether the plaintiffs have to prove their title and possession in the circumstances of the suit for obtaining the relief asked for?
(3) If so, whether the plaintiffs have got title to and possession of the suit lands?
(4) Whether the 2nd defendant has title to and possession of the suit land by virtue of the sale or by virtue of any adverse possession?’
8. After considering the evidence on record and the arguments advanced before him the learned Subordinate Judge found that the alienation of the suit land in favour of the 2nd defendant is not Inoperative or invalid, since the sale-deed was not in violation of the conditions laid down for a Depressed Class Grant. The burden of proof lay upon the plaintiffs to establish that they have got title to and possession of the suit land. Ex. B-1 agreement was really executed by defendant No. 3, preceding Ex. B-2 sale-deed. Exs. B-1 and B-2 are genuine transactions supported by consideration. Ex. A-21 is the certified copy of No. 2 account which also shows that Kadiyala Raghavaiah, had raised tobacco in that land. D.W 2 Kadiyala Raghavaiah claimed that he cultivated one piece of land in S. No. 546/1 as a lessee of the 2nd defendant for three years and raised tobacco therein. It is true that the enjoyment of defendant No. 2 was not noted in No. 2 village account but No. 2 village account will be maintained by the Village Karnam and it is for him to make necessary and proper entries as per the actual enjoyment, and from the documentary and oral evidence it was clear that the 2nd defendant was in continuous possession of the land ever since he purchased the same under Ex. B.1 Since the village karnam was not examined in the suit by the plaintiffs, even in the absence of any entries showing the enjoyment of the 2nd defendant, in No. 2 village-account, from the above circumstances it appears that the 2nd defendant is in possession of the land covered by Exs. B-1 and B-2, eversince the date of Ex. B-1 and even by the date of suit, although by the date of the suit, the 2nd defendant did not perfect his title by any adverse possession.
9. With those findings, the learned Subordinate Judge dismissed the plaintiff's appeal. Hence this second appeal by the plaintiffs.
10. The learned counsel, Sri N. Rajeswara Rao, appearing for the appellants, raised two contentions before me viz. (1) a sale in violation of the Board's standing order, which permitted the assignment of Government lands to persons belonging to depressed classes only, is Illegal and void. Defendant No. 2 is a rich Kamma gentleman and is not a person belonging to a depressed class. Hence the sale by defendant No. 3 in favour of defendant No. 2, evidenced by Ex. B-2 is void and illegal and, therefore, no rights accrued to defendant No. 2 under the sale-deed (Ex. B.2) dated 12-12-1952, and (ii) the sale of the land in favour of defendant No. 2 by defendant No. 3 being against the public policy, under section 23 of the Indian Contract Act the sale is void. The concurrent findings of fact that the plaintiffs were not in possession of the suit land, is vitiated for the simple reason that Exs. A.21 and A.22 and other important documents have not been considered by the first appellate Court.
11. I will dispose of the second contention first. It is admitted by the learned counsel for the appellants that the concurrent finding of the courts below that the plaintiffs were not in possession of the suit land, is a finding of fact. That is why, the contention that has been raised by the learned counsel for the appellants was that, that finding of fact being vitiated, by reason of non-consideration of the important documents filed by the plaintiffs, is not binding on the second appellate Court. There is, in my opinion, no substance in this submission. The first appellate Court confirmed the judgment of the trial Court. In delivering an affirming Judgment, the first appellate Court is not bound to repeat what all the trial court has said. The effect of the various documents filed by the plaintiffs in support of their plea that they were in possession of the suit land, was considered by the trial Court, in paragraph 15 of its judgment. This is what the trial court has said—
“Exs. A.16 to A.20 are entries in a cist receipt book produced, by the plaintiffs. The entries are from the year 1958 onwards. In 1958 we find an entry showing payment of Rs. 31-6-0 for patta number 450. Again in the year 1959 an amount of Rs. 32-6-0 was shown as having been paid by Rosaiah for patta No. 450. These are written in a clumsy way, and with corrections. They are said to have been issued by the Karnam of the village. The said Karnam was not examined. They do not contain the signature of the Karnam even. So, no reliance can be placed upon such spurious cist receipts.
12. In confirming the finding of the trial court in regard to the possession of the suit land, the first appellate Court must be considered to have upheld that finding for the reasons stated by the trial court. In regard to Ex. A.21, the fine appellate Court has already considered it. In paragraph II of his judgment, the learned Subordinate Judge stated thus in regard to Ex. A.21:—
“.. Ex. A.21 is the certified copy of No. 2 account which also shows chat Kadiyala Raghavaiah raised tobacco in that land. D.W 2, Kadiyala Raghavaiah claimed that he cultivated one piece of land in S. No. 546/1 as a lessee of the 2nd defendant, for three year and raised tobacco therein. It is argued that the enjoyment of the 2nd defendant was not noted in No. 2 account as can be sen from Ex. A.21 It is quite true that the enjoyment of the 2nd defendant was not noted in No. 2 village account. But No. 2 village account will be main ained by the Village Karnam and it is for him to make necessary and proper entries as per the actual enjoyment. From the above documentary and oral evidence and the other circumstances of the suit, it is clear that the 2nd defendant is in continuous possession of the land ever since he purchased the same under Ex. B.1 There is no reason as to why the village karnam did not show the enjoyment of the 2nd defendant in No. 2 village account. The village Kirnam is not examined in this suit by the plaintiffs. Even in the absence of any entries showing the enjoyment of the 2nd defendant in No. 2 village account, from the above circumstances it appears to me that the 2nd defendant is in possession of the land covered by Exs. B.1 and B.2, ever-since the date of Ex. B.1 and even by the date of the suit..”
13. The next document, relied upon by the appellants' Course, Sri N. Rajeswara Rao, was Ex. A.22 is an extract from Register No. 6. Register No. 6 is the current-register of applications for transfer of registry in Narasaraopet Taluk, Guntur District for Fasli 1372. In Ex. A.22 the name of the transferor has been shown as Meka Rosayya and, under the column “names of the transferees” plaintiffs' names have been shown. The consideration for Transfer is noted as Rs. 1,000/-. Great stress is land by Mr. N. Rajeswara Rao, the learned counsel for the appellants, on this document. Mere mutation of name of the owner in Register No. 6 does not establish the title of the person shown therein. If, in entering the plaintiffs' names as ???, in register No. 6, the concerned authority had gone into the claims of defendant No. 2, then, it would have had some evidentiary value. Defendant No. 3, who is closely related to the plaintiffs, was Interested in suppressing his earlier sale of the said land in favour of defendant No. 2. Without considering the claims of defendant No. 2 to the said land and hearing his objections, if any the entries made in Ex. A.22 would have no evidentiary value at all. I, therefore, hold that the finding of the learned Subordinate judge, confirming the finding of the trial, Court in regard to the possession of the suit land by defendant No. 2, is not vitiated in any manner. That finding is binding on the second appellate Court.
14. It is unthinkable that the 2nd defendant, who had purchased the land in 1952, would have kept quiet without receiving the possession of the said land till 1962. The 2nd defendant has also sold away a part of the said land in favour of one Chukkapalli Seshamma. That also confirms the fact that he was in possession of the said land. I, therefore, reject the second contention raised by the appellants' counsel.
15. The next contention relates to a question of law. Originally, the land, in question, belonged to the Government. The Government assigned the same to a co-operative society. That co-operative society in its turn, sold the said land in favour of Meka Rosaiah According to the rules relating to the assignment of Government lands, alienation cannot be effected in favour of persons who do not belong to depressed classes. The relevant Board's Standing order (B.S.O) No. 38, reads thus—
“B.S.O 38(f)—Assignments whether of ordinary land or of valuable land in these areas, will be subject to the condition that the lands shall not be alienated to any person Whether a member of the depressed classes or not in any manner before the expiry of ten years from the date of the grant nor even thereafter, except to other members of these classes……”
“….If the condition of non-alienation is violated or if the land ceases to be owned by the assignee or his legal heirs or (after the ten years) other members of their class, owing to sale by process of law or otherwise, or if default is made in the payment of the Government revenue on the dates prescribed, the grant will be liable to be resumed by the Government who will be entitled to reenter and take possession of the land without payment of any compensation or refund of the purchase money…..”
16. A careful perusal of this Board's Standing Order shows that it is not the policy of the Government or restrict alienations. The restriction is that such land should not be sold within ten years from the date of assignment by the Government and that, even after the expiry of 10 years, it should be sold only to the members of the depressed classes. If this rule is violated, then the Government would be entitled to re-enter and resume the land, without payment of any compensation to the purchaser. It is thus clear that the policy of the Government is not that such land of the Government, assigned to a member of a depressed class, should not at all be alienated.
17. A question of law, at this stage, has been raised that the Board's Standing orders have the force of a statute and that the policy laid down in those Board's Standing orders is a public policy and, if any alienation is made against that public policy, such alienation is void under section 23 of the Indian Contract Act. There is absolutely no force in this submission. In Genesa Nalcken v. Arumugha Naicken (I) 1954 (II) M.L.J 35) a Division Bench of the Madras High Court held that—
“….The darkhast grant is in the nature of a gift by the Government. It is intended to be personal to the grantee. That is why there is a specific provision in the grant that the property shall not be alienated without the consent of the Tahsildar. Any contract which has the effect of circumventing this policy of the Government would, in our opinion, be opposed to public policy. It can well be imagined that serious and disastrous consequences might cause if we were to uphold the plea of the plaintiff-respondent that there could be benami acquisitions of sites on darkhast. Government may in accordance with their avowed policy grant sites on darkhast to Harijans or members of Scheduled Caste. If the respondent's plea were to be accepted a rich exploiter could make the members of the privileged classes apply for grants of sites and subsequently set up his own title to them on the ground that the applicants were only his “Benamidars” or namelonders. That would be completely destroying the object of the Government.
When there is a specific provision in the grant that there should be no alienation without the consent of the Tahsildar, by declaring the plaintiff's title we would in effect be circumventing that provision….”
18. section 23 of the Indian Contract Act says that the consideration or object of an agreement is lawful, unless (i) it is forbidden by law, or (ii) it is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the Court regards it as immoral, or opposed to public policy.
19. The learned counsel, Mr. N. Rajeswara Rao, contended that the Board's Standing orders have the force of law and their contravention or violation would be considered as opposed to public policy in support of this argument, the learned counsel relied upon the Madras decision, referred to above, in authority has been cited by the learned counsel to show that the Board's Standing orders have the force of a statute. Unless it is established that the Board's Standing orders would have the force of law, a violation of those B.S.Os cannot be said to be an act which is forbidden by law. The principle of ‘public policy’ is: Ex dolo malo non oritur actio. No court will lend its and to a man who finds his cause of action upon an immoral or an illegal act. If the cause of action appears to arise ex turpi causa or the transgression of a positive law of this country, there the court says he has no right to be assisted. Thus, the question that has been raised by the learned counsel for the appellants, depends upon the answer that is to be given to the question whether the Board's Standing order is or tantamount to law.
20. Sale of land by one person in favour of another is perfectly a legal transaction and is neither immoral, nor unlawful. Even the B.S.O has not prohibited alienation of the land, but has fixed only a time limit, and the persons to whom it has to be alienated. There is, therefore, no doubt that the transaction of sale by defendant No. 3 in favour of defendant No. 2 is neither immoral nor illegal, or contrary to law, unless the B.S.O amounts to a law.
21. In Shanmuganandam v. Madural Municipality (2) (1956) 69 Law Weekly, 44 (Short Notes); Krishnaswamy Nayudu, J. held that;—
“…..it will not be open to the plaintiff, a non-Harijan who with open eyes purchased the property which was specially set apart for the benefit of Harijans, to take advantages of a grant made to ameliorate the conditions of the depressed classes, and no court can in justice, equity and good conscience uphold such a transaction…”
22. The decision of the Supreme Court in Megharaj Kothari v. Delimtation Commission (3) AIR 1967, Supreme Court, 669) cannot help the appellants to establish that the Board's Standing Orders have the force of law. There, their Lordships were considering whether the orders issued under sections 8 and 9 of the Delimitation Commission Act, have the force of law. Section 10(2) of the said Act itself gives the clue to the answer. Section 10(2) wanted to make it clear that the orders passed under sections 8 and 9 were to be treated as having the binding force of law and not mere administrative directions. In this case, it has not been established by the learned counsel for the appellants as to under what section of law have these standing orders been issued by the Board. Therefore, the above decision of the Supreme Court does not help the appellants.
23. Considering the decision rendered by a Division Bench of the Madras High Court in L.P.A No. 225 of 1952, a Full Bench of the Madras High Court in K. Nagarathnamal v. Ibrahim Saheb (4) AIR 1955, Madras, 305) observed thus in paragraph 22:—
“…With all respect to the learned Judges who decided Thimmaiah's case, we have to observe that they appear to have been under a misapprehension as regards the true scope and legal effect of the standing orders of the Board. They stated:—
“After all, the standing orders of the Board of Revenue are merely collections of resolutions made by the Board for its own conduct of business as well as for regulating the procedure in the matter of collection of revenue by subordinate revenue tribunals, and executive functionaries.’
24. They observed further:
‘As we have already remarked standing orders of the Board are merely executive Instructions by the Board to its subordinate officers whereby they lay down the procedure to be adopted in certain cases…’
25. Actually, however, that is not so. The standing orders of the Board of Revenue consist of atleast three categories of rules: (1) Rules framed either by the Government or by the Board itself in pursuance of a statutory power. Thus for instance, S. 20 of Madras Act, 3 of 1895 confers on the Board power to make rules on various matters with the approval of the Government after previous publication. Such rules are incorporated in the Board Standing orders. We have mentioned Madras Act 3 of 1895 only by way of Illustration. There are several other statutory provisions incorporated in the Board's Standing orders (2) the Board's standing orders next consist of a large number of orders issued by the Government. (3) The third category consist of orders issued by the Board itself with the approval and very often with the previous sanction of the Government. All these have been arranged in the Board Standing orders in a manner that should make reference to them easy. It is not therefore entirely correct to say that the orders of the Board are all merely executory instructions devoid of statutory force….”
26. A careful perusal of this judgment shows chat it is only when the Board's orders are issued under the rule making power conferred on it, under an Act, that they would constitute a law or have the force of law and, in other matters, they will be mere resolutions passed by the Board for the conduct of its own business, as well as for regulating the procedure in the matter of collection of revenue by its subordinate revenue tribunals and executive functionaries.
27. In Pasupuleti Krishnamurty v. Annadasu Bapanayya (5) 1956, Andhra Law Times, 566) Subba Rao, C.J (as he then as) and Viswanatha Sastry, J. held that—
“….The instructions issued by Government regulating the grants of lands to political suffers do not confer rights enforceable in a court of law and the property of the decision of the Darkhast authority acting within the scope of its powers cannot be questioned by the Civil Courts. Even if the decision did not strictly conform to the instructions, a civil Court cannot set it aside on that ground….”.
28. This decision clearly establishes that the rules regulating the grant of lands to political sufferers cannot be enforced in a Court of law. What that ruling says is that the Board issuing the Standing Orders is bound by such Standing orders. If a grant is made purporting to be under those Board's Standing orders, it would not be open to the Civil Court to challenge those grants. This decision, in my opinion, helps the respondents to show that the Board's standing orders are only executive instructions for the guidance of the Board, and nothing more than that.
29. In Anji Raju v. State of Andhra Pradesh (6) (1960) II An. W.R 272, a Division Bench of this Court, consisting of Chandra Reddy, C.J and Sanjeva Row Nayudu, J. observed, at page 274, that:
“In our considered opinion, this Government order should not clothe the political sufferers with any legal right, as it is merely an executive instruction Issued for the guidance of the officers who were to carry out the policy of the Government.”
30. The decision in State of Andhra v. Gangappa (7) (1957), II A.W.R 123), does not say that the Board's Standing orders have the force of law, and it is not of any help to the appellant's Counsel.
31. In Murlidhar v. State of Uttar Pradesh (8) (1974) 2 SCC 472 : A.I.R 1974, Supreme Court 1924). the Supreme Court was considering the validity of an alienation made in contravention of Section 7(2) of the U.P (Temporary) Control of Rent and Eviction Act, wherein it was enacted that the vacancy of any accommodation should be reported, and if the same is not reported the District Magistrate may call upon the person. In occupation to show cause why, within the time to be fixed by him, he should not be evicted therefrom. In paragraph 16 of the judgment, the Supreme Court upholding the view taken by the Allahabad High Court in Udhoo Das v. Prem Prakash (9) AIR 1964, Allahabad page 1 (F.B) held that a lease made in violation of the provisions of Section 7(2) would be valid between the parties and would create the relationship of landlord and tenant between them although it might not bind the authorities concerned.
32. The learned counsel for the appellants invited my attention to the decision of Ramachandra Rao, J. in S.A Nos. 680 to 682 of 1967 dated 3-12-1969 but, in my opinion, the observations made therein do not help the appellant's counsel. Thus, there is no direct authority for the proposition that the Board's Standing orders have the force of law and that, if any alienation is made in violation of those Rules, it would amount to a violation of law. The observations made in other cases, that have been referred to above, only show that the Board's Standing orders are only executive instructions Issued for the guidance of the officers who carry out the policy of the Board of Revenue, Beyond that they do not have any statutory force, or force of a law, contravention of which would be hit by section 23 of the Indian Contract Act. Even assuming that the sale in favour of Defendant No. 2 by defendant No. 3 has been in contravention of the Board's Standing orders, even then it is for the Government to question the alienation and resume the land, but the plaintiffs, who are closely related to defendant No. 3, cannot be benefited by the subsequent alienation made by the defendant No. 3 in their favour. Thus, I do not see any valid reason to take a view different from the one taken by both the Courts below.
33. I am constrained to observe that defendant No. 3 is a person who was abused the benefits or the concessions shown by the Government, by the issue of B.S.O 38. He has, with knowledge and deliberately, alienated the suit lands once in favour of defendant No. 2 and, for the second time, in favour of his own wife and others. The 3rd defendant deserves to be prosecuted for cheating. With these observations, I dismiss the second appeal with costs. Leave granted.
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