Ashok vs Baba Rao and Another

C.Y. Somayajulu, J.—This is an appeal by the 1st defendant in OS No. 3 of 1985 on the file of the Court of the Additional District Judge, Adilabad. For the sake of convenience, I would refer to the parties as they are arrayed in the trial Court.

Plaintiff filed the suit for recovery of possession of 15 acres 7 guntas of land in S. No. 83 of Pipri village, Utnoor Taluq, hereinafter called the ''suit land'' from the defendants alleging that the suit property, which was allotted to his share during the partition between him and his brother, was being cultivated by him through coolies and that the 2nd defendant, who is the father of the 1st defendant, who used to cultivate the suit land as a cooli had put the 1st defendant in possession thereof. After coming to know about the said fact, he demanded the 1st defendant to vacate the suit land and deliver the possession thereof to him, but the 1st, defendant refused to do so and hence the suit.

1st defendant filed his written statement contending that in the partition that was effected between the plaintiff and his brothers Govind Rao and another, the suit land was allotted to the share of Govind Rao and that Govind Rao in exchange of the suit land, took land in S.Nos.46 and 51 measuring 6 acres 11 guntas and 8 acres 12 guntas respectively of Devapur village from the 2nd defendant and during the partition between him and his father, the suit land was allotted to his share and so plaintiff is not entitled to recover possession of the suit land from him.

2nd defendant remained ex parte.

Basing on the said pleadings, five issues were settled for trial by the trial Court. In support of his case, plaintiff besides examining himself as PW1 examined one Govind Rao as PW2 and marked Ex.A1. In support of his case, the 1st defendant examined himself as DW1 and another witness as DW2 and marked Exs.B1 to B34. The trial Court, after considering the evidence on record, held on issues 2 and 3, which relate to the question whether the suit land was allotted to the share of Govind Rao and whether it was given in exchange to 2nd defendant in lieu of S.Nos.46 and 51 of Devapur, against the 1st defendant and in favour of the plaintiff. On issue No. 4, which relates to question whether the exchange (pleaded by the 1st defendant) is valid under the provisions of A.P. Scheduled Areas Land Transfer Regulations, 1959 (hereinafter called the ''Regulations") held against the 1st defendant. On issue No. 1, which relates to the question whether the plaintiff is entitled to recover possession, held in favour of the plaintiff, and on the basis of the findings on the other issues, on issue No. 5, which relates to result, decreed the suit against the 1st defendant with costs and dismissed the suit against the 2nd defendant without costs. Hence this appeal by the 1st defendant.

The point for consideration is whether the plaintiff is entitled to recover possession of the suit land from the 1st defendant.

The case in brief of the 1st defendant is that in the partition between the plaintiff and his brothers, the suit land was allotted to the share of plaintiffs brother Govind Rao and that Govind Rao exchanged the suit land with 2nd defendant and put the 2nd defendant in possession of the suit land after delivering possession of land in S.Nos.46 and 51 of Devapur village to Govind Rao and that in the partition between him and his father, the 2nd defendant, the suit land was allotted to his share. So it is clear that 1st defendant is claiming title to the suit property by virtue of an exchange between his father and Govind Rao. 2nd defendant remained ex parte. 1st defendant did not examine 2nd defendant or Govind Rao to speak about the exchange pleaded by him. To prove the exchange between the 2nd defendant and Govind Rao, no document is produced by the 1st defendant. As per Section 118 of Transfer of Property Act, exchange can be made only in the manner provided for transfer of property by way of sale. Sale of immovable property worth more than Rs. 100/- can be made only by a registered document. Since the value of suit land, admittedly is more than Rs. 100/-, exchange of suit property could be made only by way of a registered document in view of Section 118 of Transfer of Property Act. Since admittedly there is no registered document either in favour of any of the defendants in respect of the suit property, the exchange pleaded by the 1st defendant is in valid and hence cannot be taken into consideration. Except the oral evidence of the 1st defendant, there is no other evidence on record to show that there was an exchange of lands between the 2nd defendant and Govind Rao. Non-examination of Govind Rao and/or 2nd defendant on his behalf by the 1st defendant to speak about the exchange entails an inference being drawn that had they been examined they would not have supported his case. All these apart as rightly held by the trial Court, even if there were an exchange between Govind Rao and 2nd defendant in respect of the suit land and other lands since the same is hit by the, provisions of Regulation No. 3 of Regulations, it is void. Regulation No. 3 of the Regulation lays down that any transfer of immovable property'' situate in agency tracts by a person whether or not such person is a member of Scheduled Tribe shall be absolutely null and void unless such transfer is made in favour of a person, who is a member of Scheduled Tribe, or a society registered or deemed to be registered under the A. P. Co-operative Societies Act, 1964, which is composed solely of the members of Scheduled Tribes. Therefore the contention of the 1st defendant that his father the 2nd defendant, acquired title to the suit land by virtue of an exchange cannot be accepted or believed. That the family of the plaintiff has title to the suit land is admitted by the 1st defendant. So plaintiff has better title than the 1st defendant

The learned Counsel for the appellant relying on Regulation 3 (2) (a) of the Regulations contended that civil Court has no jurisdiction to entertain the suit and only the agent has jurisdiction to entertain the suit. I am unable to agree with the said contention. What Regulation 3(2)(a) of the Regulations lays down is that if transfer of immovable property is made in contravention of Sub-section (1), the Agent, the Agency Divisional Officer or any other prescribed Officer may on application by any one interested, or on information given in writing by a public servant or suo motu can eject any person in possession of the property claiming under such transfer, after due notice to him in the manner prescribed and restore possession to the transferor or his heirs. In my opinion the above said clause would apply only when restoration of possession is sought on the ground of invalidity of a transaction prohibited by the regulations, but not in case of recovery possession alleging trespass or unauthorised occupation. In this case plaintiff is not claiming possession of the suit land on the ground that the 1st defendant came into possession of the property under a transaction which is prohibited by the regulations. Therefore, Regulation 3(2)(a) does not apply to the facts of this case.

As per Regulation No. 4 a suit against a member of a Scheduled Tribe can be instituted only in the Court having jurisdiction over the agency tract. Since the parties to the suit are not members of a Scheduled Tribe, though the suit property is situated within a scheduled area, Regulation No. 4 has no application. No other provision in the regulations is brought to my notice to show that in respect of land situated in an agency area, where parties are non-tribals, civil Court has jurisdiction to entertain the suit for ejection of a non-tribal trespasser .

Since the case of the 1st defendant that he came into possession of the suit land by virtue of an exchange cannot be believed or accepted, I find no grounds to interfere with the decree of the Court below that the plaintiff is entitled to a decree for possession of the suit land from the 1st defendant. The point is answered accordingly.

In the result, the appeal is dismissed without costs.