Dismissed

B Ashok reddy v. Prl.Secy., Revenue dept.

Andhra Pradesh HC16 Aug 2023WP/44700/2017

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging revenue orders confirming a cancellation of title in favor of the petitioner's vendor. The Bench held that the writ was maintainable only if there was no dispute of fact, but since the petitioner sought a declaration of title based on an agreement for sale amidst conflicting claims, the question of title and possession was purely factual. Conseq

What did the court decide?

Writ petition dismissed; miscellaneous applications pending if any stood dismissed; petitioner directed to approach the competent Civil Court to settle the title dispute.

B Ashok reddy Vs Prl.Secy., Revenue dept. — Property and Title | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAV/®

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(Special Original Jurisdiction)

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WEDNESDAY. THE SIXTEENTH DAY OF AUGUST TWO THOUSAND AND TWENTY THREE .

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A
p “ , I
p

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PRESENT

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THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

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WRIT PETITION NO: 44700 OF 2017

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Between:

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g Ashok Reddy S/o B. Thippana Reddy. Aged about 59 vears Orc

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...PETITIONER

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AND

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The Joint Collector. Anantapur, Anantapuramu District.

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The Revenue Divisional Officer. Anantapur. Anantapuramu District.

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The Tahsildar. Vajrakaruru Mandal. Anantapuramu District.

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...RESPONDENTS

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‘'’® Constitution of India is filed praying that in the

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AXt:;uX%";XotToZ

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jurfedictionandconseSysl?a^d^h“^^^^^ "

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lA NO: 1 OF 2018

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Between:

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Smt.R. Gowramma, D/o Late Rachana Goud, Aged about 58 years, Occ.Agriculture, R/o C/o P. Shankar Goud, Gulapalyam (Vil), Vajrakaruru

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Mandal, Anantapuramu District.

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P. Pampana Goud, S/o Late Rachana Goud Aged about 64 years, Occ.Agriculture R/o C/o P. Shankar Goud, Gulapalyam (Vil), Vajrakaruru Mandal, Anantapuramu District.

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...Petitioner/Respondents

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AND

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1. B Ashok Reddy, S/o B. Thippana Reddy, Aged about 59 years, Occ Business, R/o D.No.261. Kanakasri Nilaya, Flat No.7, Nijalingappa Layout, Nearby National Convent, Devnagere Town, Devnagere District, Karnataka State.

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...Writ Petitioner/Respondent

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The Principal Secy., Revenue dept.. The State of Andhra Pradesh Rep. by its Principal Secretary, Revenue Department, A.P. Secretariat, Velagapudi Amaravahti, Guntur District, Andhra Pradesh State.

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The Joint Collector, Anantapur, Anantapuramu District.

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The Revenue Divisional Officer, Anantapur, Anantapuramu District.

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The Tahsildar, Vajrakaruru Mandal, Anantapuramu District.

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...Respondents/Respondents

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Petition under Section 151 CPC is filed praying that in the circumstances stated in the affidavit filed in support of the writ petition, the High Court may be pleased to vacate the interim order granted on 04-01-2018 in I.A.No.2/2017 in W.P.No. 44700 / 2017 and dismiss the same.

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lA NO: 2 OF 2017

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Petition under Section 151 CPC is filed praying that in the circumstances stated in the affidavit filed in support of the writ petition, the High Court may be pleased to suspend the order of the Joint Collector, Anantapur, Anantapuramu District in D.Dis.No.1583/2015/D4 dt. 04-08-2017 confirming the order passed by the Revenue Divisional Officer, Anantapur, Anantapuramu District in D.Dis.D2/4216/2010 dt.24-09-2011, pending disposal of the writ petition

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Counsel for the Petitioner: SRI. CH C KRISHNA REDDY

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Counsel for the Respondent Nos. 1 to 4: GP FOR REVENUE

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Counsel for the Respondent Nos. 5 &6: SRI. B. S. VENKATA RAMESH

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The Court made the following: ORDER

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THE HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

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WRIT PETITION No.44700 OF 2017

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ORDER;-

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This writ petition is filed under Article 226 of the Constitution of India, claiming the following relief:

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“To issue writ of mandamus declaring the order of the Joint Collector, Anantapur, Anantapuram District in D.Dis.No. 1583/2015/04 dated 04.08.2017 confirming the order passed by the Revenue Divisional Officer,, Anantapur, Anantapuram District in D.Dis.D2/4216/2010 dated 24.09.2011 as arbitrary, illegal, without jurisdiction and consequently set-aside the same.” 2. The brief facts of the case are that, originally land of an extent of Ac.8-37 cents situated in Sy.No.330 of Gulapalyam Village, Vajrakaruf Mandal, SPSR Nellore District belonged to one Sri P. Rachana Gowd (hereinafter referred as ‘subject property’). He died leaving behind his sons and daughters. Thereafter, the subject property fell to the share of Sri P. Chandrasekhar Gowd s/o P. Rachana Gowd as per the oral partition. Sri P. Chandrasekhar Gowd died leaving behind his wife Smt. P. Girijamma and his son Sri P. Kumar Gowd. Smt. P. Girijamma executed registered Gift Deed No.2424 dated 07.09.2009 in favour of his son i.e P. Kumar Gowd. Necessary mutations were carried out in the revenue records and pattadar passbooks and title deeds were issued in favour of P. Kumar Gowd. Later, the petitioner .herein purchased the above properly from P. Kumar Gowd for valuable consideration vide registered Sale Deed No.3814 of 2010 dated 08.11.2010. Since the date of purchase, the petitioner is in

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NV,J WP No.44700 of 2017

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peaceful possession and enjoyment of the property and thus the petitioner ' became the owner of the subject property.

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The Unofficial respondents/Respondent Nos.5 85 6 filed an appeal before the Revenue Divisional Officer, Anantapur, for cancellation of the pattadar passbook and title deed issued in favour of the vendor of the petitioner i.e. P. Kumar Gowd in respect of the subject land. Consequently,, the Revenue Divisional Officer, Anantapuram passed an order in Appeal in D.Dis.D2/4216/2010 dated 24.09.2011, by which he cancelled the pattadar passbooks and title deeds issued ir^. favour of P. Kumar Gowd, vendor of this petitioner.

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Thereupon, the petitioner preferred a Revision Petition before the Joint Collector, Anantapur, after hearing both parties, the Joint Collector disposed of the Revision, confirming the order passed by the Revenue Divisional Officer, Anantapur vide proceedings in D.Dis.No.l583/2015/D4 dated 04.08.2017. Challenging the proceedings of the Revisional Authority, as well as the Appellate Authority in D.Dis.No.l583/2015/D4 dated 04.08.2017 and D.Dis.D2/4216/2010 dated 24.09.2011, the present writ petition is filed. ;-r

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5. Respondent No.2 - Joint Collector, Anantapuram filed counter affidavit stating that, land of an extent of Ac.8-37 cents in Sy.No.330 of Gulapalyam Village of Vajrakarur Mandal is patta land and belongs to

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NV,J WP No.44700 of 2017

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; J one Sri P. Rachana Gowd who had two wives namely Smt. P. Parvathamma and Smt. P. Chayamma. Sri P. Rachana Gowd had two sons and two daughters with his first wife viz Mahabaleswara Gowd, Chennanna Gowd, Sivamma and Jayamma. Additionally, he had three sons and four daughters with his second wife viz P. Drakshayanamma, P. Gowramma, P. Bhuvaneswari, P. Bhagyalakshmi, P. Chandrasekhar Gowd, P. Pampanna Gowd and P. Shankara Gowd. Unfortunately, three of the children froni his second wife i.e. P. Drakshayanamma, P. Gowramma and P. Pampanna Gowd were are mentally challenged, and they are being looked after by P. Shankar Gowd. As per their Family Agreement dated 10.04.1989, the subject land has been allotted to Sint. P. Chayamma and Sri P. Pampanna Gowd by Smt. P. Girijamma and three others with limited rights. After the death of Smt P. Chayamma and others, the property again fell to the share of Smt. P. Girijamma. As against the family agreement, Smt. P. Girijamma has executed registered Gift Deed No.2424/2009 dated 07.09.2009 in favour of her son P. Kumar Gowd. It is further stated that Smt. P. Girijamma has no right to execute dana settlement deed in favour of his son P. Kumar Gowd, and hence P. Kumar Gowd is not eligible for getting pattadar passbook and title deed for the land in question and the orders passed in Appeal by the Revenue Divisional Officer dated 24.09.2011 and confirmed by the Joint Collector in Revision, Anantapuram on 04.08.2017 are not liable, for any interference.

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NV,J WP No.44700 of 2017

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6. It is also stated in the counter ;• affidavit that, since the Danasettlement Deed executed by Smt. P. Girijamma in favour of her son Sri P. Kumar Gowd' for the land in question is against the settled family agreement, the Pattadar Passbook and title deeds issued whatsoever to P. Kumar Gowd are liable to be cancelled, accordingly the same have been cancelled and in the said circumstances, requested to dismiss the writ petition.

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7. Respondent Nos.5 85 6/Unofficial respondents filed counter affidavit denying material allegations, inter alia contending that Smt. P. Girijamma who has no right over the subject land in question, has alienated the said land by way of Dana Settlement through Registered Document dated 07.09.2009 in favour of his son P. Kumar Gowd without knowledge of Respondent Nos.5 85 6 and obtained pattadar passbook and title deed. After coming to know about issuance of pattadar passbook and title deed in favour of P. Kumar Gowd, Respondent Nos.5 85 6 filed appeal before the Revenue Divisional Officer for cancellation of the pattadar passbook and title deed issued in favour of P. Kumar Gowd on the ground that, Smt. P. Girijamma created a spurious document in favour of her son P. Kumar Gowd. The then Tahsildar without conducting any enquiry as contemplated under the provisions of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971, issued pattadar passbook and title deed.

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NV,J WP No.44700 of 2017

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Respondent Nos.5 8& 6 further submitted that, they were not aware of the fact that land in question was purchased by the petitioner from Sri P. Kumar Gowd and they only came to know about the said purchase of land after receipt of notices from the 2’’'^ Respondent. Respondent Nos. 5 85 6 submits that the petitioner has no right to purchase the land in question when there is no vested right to Girijamma who gifted the property in question to his son when the matter is pending before the 3^ Respondent for cancellation of pattadar passbook and title deed. It is also submitted that. Respondent Nos.2 85 3 did not decide the title of the parties and came to the conclusion that, the Dana Settlement Deed executed by Smt. P. Girijama in favour of her son P. Kumar Gowd is illegal and against terms of the family agreement deed dated 10.04.1989.

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Learned counsel for the petitioner submits that the Appeal filed by Respondent Nos.5 85 6 is not maintainable under Section 5(5) of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (for short ‘Act, 1971’). He further submits that, as per Section 8(l)(ii) of the Act, 1971, if any person is aggrieved as to any rights of which he is in possession by an entry made in any record of rights, he may institute a suit before the competent civil court against any person denying or interested to deny his title to such right for declaration of his right under Chapter VI of the Specific Relief Act, 1963, but he cannot file an appeal before the Appellate

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NV,J. WP No.44700 of 2017

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Authority. In support of his contention, learned counsel places reliance on the judgment of the High Court of Judicature , at Hyderabad in K. Siddiah Naidu vs. District Collector, Chittoor* and the strength of the principle laid down in the above judgment, learned counsel contends that the question of title'and possession is purely a question of fact which cannot be decided by an authority like the Revenue Divisional Officer and unless and until the title of such a disputed properly is decided one way or the other necessary changes of entries in the revenue record cannot be effected by the revenue officials under the Act, therefore, the appeal filed by the unofficial respondents is liable to be rejected on the ground of maintainability of the appeal.

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.10. Learned counsel for the petitioner would further contend that, the pattadar passbooks or title deeds merely contains entries of 1-B register maintained under the Act and Section 6-A provides for obtaining pattadar passbook by a person whose name is already entered in the record of rights. He submits that issuing pattadar passbook under Section 6-A of the Act by itself does not decide any dispute between parties. The issuance of pattadar passbook by itself either under the scheme of the Act or otherwise does not provide for an appeal before the Revenue Divisional Officer. The learned counsel in support of his submission that no appeal is

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1999 (5) ALT 480

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NV.J WP No.44700 of 2017

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; ' maintainable contends that the right of appeal is not a natural or inherent right to a party and a right of appeal does not exist or cannot be assumed unless expressly provided by a statute or by rules having the force of statute. A right of appeal is a substantive right and not a procedural matter. Further, the ratio in N.Bal .Reddy vs. Revenue Divisional Officer^ that making of entry under Section 5 of the Act and issuance of pattadar passbook is interdependent and inseparable and consequently appeal under Section 5(5) of the Ac/: is maintainable suffers from patent infirmity inasmuch as under the scheme of the Act, a party is said to be aggrieved either at the stage of preparation, updating record of rights under . Section 3 of the Act or effecting changes to an existing record of rights on the acquisition of right in one or the other , way stipulated under Section 4 of the Act dr upon regularization of transactions under Section 5-A of the Act and consequent changes to the record of rights. But, appeal is not provided by the Act against mere issuance of pattadar passbook evidencing entries borne out by record of rights. According to the learned counsel, an appeal against an order or issuance of pattadar passbook under Section 6-A of the Act is not .provided under the Act and consequently the subject appeal is illegal and liable to be set-aside.

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2 2004 (2) ALT 457

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NV,J WP No.44700 of 2017

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Learned Government Pleader for Revenue would submit that, there is no dispute with regard to possession and tide in view of the Family Agreement dated 10.04.1989. As per the Family Agreement dated 10.04.1989, the land of an extent of Ac.8-37 cents in Sy.No.33O of Gulapalyam. Village, Vajrakaruru Mandal, Anantapuram District was allotted to the share of P. Chayamma (second wife) by Smt. P. Girijamma with limited rights and after the death of Smt. P. Chayamma, the property will again fall to the share of Smt. P. Girijamma. But, contrary to her own agreement, Smt. Girijamma executed registered Gift Deed No.2424/2009 dated 07.09.2009 in favour of her son P. Kumar Goud in respect of the said land and the said alleged alienation of land is between mother and son, which is contrary to the Family Agreement dated 10.04.1989. He further submits that, on the strength of this Gift Deed; the donee - P. Kumar Gowd obtained pattadar passbook vide Khata No.708. Therefore, issuance of pattadar passbook was challenged on the ground that the P. Kumar Gowd is not vested with any right over the property, since the subject alleged alienation is against the original Family Agreement dated 10.04.1989. Therefore, issuance of pattadar passbook and title deed was challenged before the Revenue Divisional Officer, Anantapur in an Appeal.

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Learned Government Pleader further submits that, no appeal lies before the Revenue Divisional Officer for cancellation of pattadar

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NV,J . WP No.44700 of 2017

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f ■ <•

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passbooks, in view of Section 8(2) of the Act, 1971 and it is contrary to Section 5(5) of the Act, 1971;

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Learned counsel for the unofficial respondents submit that, pursuant to the orders of Jhe Appellate Authority dated 24.09.2011 and Revisional Authority dated 04.08.2017, the unofficial respondents herein are entitled to pattadar passbooks and title deeds in their favour, therefore, the petitioner is not entitled to kny title over the property, since the pattadar passbooks and title deeds were cancelled in appeal in respect of P. Kumar Gowd. Therefore, the alleged alienation of the property by way of Sale Deed is null and void, since the vendor cannot transfer good title more than what he has and requested to dismiss the writ petition.

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Heard learned counsel for the petitioner, learned Government Pleader for Revenue and learned counsel for the unofficial respondents.

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On perusal of the material available on record, it appears that, after the death of P. Rachana Gowd, all the properties have been partitioned among the legal heirs of the deceased including the subject land. According » to the unregistered/oral partition deed, the subject land was allotted to the two children of late Rachana Gowd who are lunatic and unmarried for their livelihood until their lifetime. After their lifetime, the subject property was shared among other P. Maheswara Gowd, P. Chennanna Gowd, P. Shankar Gowd and Girijamma. The land is leased to Sri Shankar Gowd to take cae

•y

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NV,J WP No.44700 of 2017

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of the lunatic children, therefore, it clearly shows that the possession of c land is vested with two lunatic children as per the partition deed. But, however, Smt. P. Girijamma alienated the subject land by way of Dana Settlement through Registered Document Ne..2424 dated 07.09.2009 in favour of her only son P. Kumar Gowd and obtained pattadar passbook and title deed vide IB No.708.

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The unofficial respondents/Respondent Nos.5 & 6 happen to be the offspring of late P. Rachana Gowd. Meanwhile, the petitioner acquired the property in question from P. Kumar Gowd, who is also a son of the deceased P. Rachana Gowd. Notably, P. Rachana Gowd is deceased.. Evidently, a significant conflict regarding the title and ownership of the subject property has arisen between the petitioner and Respondent Nos.5 85 6.

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It is to be noted that, the petitioner has been seeking a relief with regard to change of entries in the revenue records only on the basis of Agreement of Sale. That itself indicates that there is any amount of dispute about the possession and title of the petitioner particularly in view of the matter being seriously disputed by Respondent Nos.5 85 6. In other words, maintaining this writ petition means indirectly seeking the verdict on the. disputed question of title and possession which has to be dissuaded by all means. Therefore, this question of title and possession is purely in the

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NV,J WP No.44700 of 2017

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; nature of question of fact but cannot be decided by an authority like the official respondents. Until and unless the title of such a disputed property is decided one way or the other, necessary changes of entries in the revenue record cannot be effected by the revenue officials under the Act. Hence, it is expedient for the petitioner to approach the competent Civil Court in order to get the title dispute settled in his favour and then only approach the authorities under the Act for appropriate relief.

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18. In view of the foregoing discussion, the writ petition is devoid of merits and liable to be dismissed. ».• 19. In the result, writ petition is dismissed. 20. Consequently, miscellaneous applications pending if any, shall stand

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dismissed.

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//TRUE COPY//

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SD/- K. TATA RAO DEPUTY REGISTRAR E(?^C^S-OFFICER

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To,

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One CC to SRI. CH C KRISHNA REDDY Advocate [OPUC] 2. Two CCs to GP FOR REVENUE, High Court Of Andhra Pradesh. [OUT] 3. Two CD Copies 4. One eC to SRI. B. S. VENKATA RAM ESH, ADVOCATE. [OPUC] csb

HIGH COURT

DATED:16/08/2023

ORDER

WP.No.44700 of 2017

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g 19) 9 SEP £S5I s

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DISMISSING THE WP WITHOUT COSTS

B Ashok reddy v. Prl.Secy., Revenue dept.

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B Ashok reddy v. Prl.Secy., Revenue dept.

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