Partly allowed

Guda Raghava Reddy, v. Government of Ap, Rep. by its Principal Secretary

Telangana HC6 Feb 2017WP/24775/2012

Case brief

AI extract

What is this about?

The Court set aside the second appellate authority's order which partly allowed the respondent's revision to annul the first appellate authority's order. It held that since the partition deed's genuineness was disputed and involved title questions, the Civil Court is the appropriate forum, directing parties to seek adjudication there.

What did the court decide?

Order of the 3rd respondent setting aside the order dt.22.08.2007 of the 4th respondent is partly allowed; parties directed to approach Civil Court for title and possession claims.

Guda Raghava Reddy, Vs Government of Ap, Rep. by its Principal… — Partition | Telangana HC (2017)

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THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO

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WP.No.24775 of 2012

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ORDER :

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This Writ Petition has been filed by the petitioner challenging the order dt.23.06.2012 in R.C.No.E5/2078/2008 of the 3^rd respondent passed under Section 9 of the Andhra Pradesh Record of Rights in Land and Pattadar Passbooks Act, 1971 (for short, ‘the Act’) .

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2. The petitioner and the 6^th respondent are brothers and they are sons of one G. Raja Reddy.

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3. The subject matter of the Writ Petition is an extent of Acs.17.26 guntas in Survey Nos.37, 38, 40, 152 and 153 of Tapasapalli Village, Cheriyal Mandal, Warangal District.

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4. Some of these lands, which the petitioner as well as the 6^th respondent contend to be their joint family properties, were occupied by third parties by name Kankanala Kistaiah and twenty others and the names of the said persons had been entered in the cultivation column of Pahanies for the year 1991-92.

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5. On a joint application made by petitioner as well as 6^th respondent on 02.10.1995 for deleting the names of the encroachers and to issue pattadar pass books and title deeds to them, the District Collector, Warangal on 01.10.2002 directed the Tahsildar, Cheriyal Mandal (R.5) to take action.

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6. The 5^th respondent conducted an enquiry and submitted a report on 12.12.2002 to the 4^th respondent to delete the names of the illegal occupants from the occupier column in the Pahanies and to issue rectification orders in the Pahanies from 1991-92 onwards.

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7. Thereafter, the 4^th respondent directed the 5^th respondent to initiate proceedings under Section 5 (3) of the Act and conduct an enquiry into the matter and then rectify the record in favour of the rightful owners.

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8. It is alleged by the Writ Petitioner that a joint statement was given in the enquiry conducted by the 5^th respondent by himself and the 6^th respondent setting out the portions of land to which each of them was entitled to and seeking further action on the basis of the said statement.

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9. On 14.08.2004, the 5^th respondent addressed the 4^th respondent to issue orders to remove the names of the illegal occupants and to issue pattadar pass book and title deeds according to Thaksimnama / Phaisalanama dt.20.07.1989 produced by both parties.

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10. Ultimately, proceedings were issued by the 4^th respondent on 22.08.2007 on the basis of the Thaksimnama / Phaisalanama dt.20.07.1989.

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“1. The names of illegal occupants i.e., Kankanala Kistaiah and (20 others be removed / deleted from cultivation column in pahanies from 1991-92 to till this year in Sy.Nos.37, 38, 40 & 152 of Tapaspalli (V).

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2. The name of Sri Guda Raghava Reddy to be entered in pattedar column from 1979-80 to till this year in Sy.Nos.37, 38, 40 & 152 in ½ share.

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3. To issue PPBS / TDS according to Thaksimnama / Phaisalanama which their shares given below.

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*G. Ranga Reddy Share by Sy.Nos.40 (13.07), 35 (1.10), 126 (0.29), 26 (0.04) Total extent 15.10 acres.

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*G. Raghava Reddy share Sy.Nos.37 (9.37), 38 (4.02), 153 (1.06), 152 (1.33). Total extent 16.38 acres.”

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11. This order was questioned by the 6^th respondent by way of Revision before the 3^rd respondent under Section 9 of the Act taking a specific plea that the 4^th respondent had not issued any notice to him though the 5^th respondent conducted an enquiry at the behest of the 4^th respondent and examined him and that the order of the 4^th respondent is therefore in violation of principles of natural justice. He further contended that his signature on the Thaksimnama / Phaisalanama dt.20.07.1989 relied upon by the 4^th respondent was forged; that it was a fabricated document apart from being unregistered; and the 4^th respondent was not competent to decide the title disputes basing on such document.

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12. The petitioner opposed the said application and contended that the said partition deed / Thaksimnama / Phaisalanama dt.20.07.1989 was in fact acted upon and that the 6^th respondent had admitted the petitioner’s ownership over the lands in other proceedings apart from proceedings under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. He also stated that the 6^th

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respondent filed O.S.No.72 of 2008 before the Junior Civil Judge, Janagaon seeking perpetual injunction against him, that though an ex parte ad interim injunction was granted initially, it was vacated on 13.04.2001 in I.A.No.307 of 2008, and that the 6^th respondent preferred C.M.A.No.8 of 2009 before the Senior Civil Judge, Janagaon which was also dismissed on 14.07.2010.

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13. The 3^rd respondent then passed the impugned order holding that the order passed by the 4^th respondent was in violation of principles of natural justice since the record of enquiry did not show that the 4^th respondent himself had issued any notice to the affected parties before passing of the impugned orders though in the enquiry by 5^th respondent (as directed by the 4^th respondent) notices were issued to the parties. She held that the genuineness of the Thaksimnama / Phaisalanama dt.20.07.1989 being seriously disputed before her, it being a dispute of civil nature, Revenue Authorities are not proper Forums to decide it. She further held that proceedings before Civil Court in O.S.No.72 of 2008 were pending adjudication; as per the order dt.29.05.1979 of the Land Reforms Tribunal, there was allotment of lands to petitioner and 6^th respondent; if the petitioner was aggrieved by the said order, he had to challenged the said award of the Land Reforms Tribunal; without doing so, he filed a petition for rectification of records before the 4^th respondent; and that the order passed by the Land Reforms Tribunal would operate as res judicata . The 3^rd respondent therefore held that the order of the 4^th respondent

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was passed without following principles of natural justice and was legally void ab initio and that the 4^th respondent had no competence or jurisdiction to decide when the matter was already decided under the Land Ceiling Act. It was also observed that the basis of the order passed by the 4^th respondent for cancellation of the pattadar pass books, is bad in law.

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14. Assailing the same, the present Writ Petition is filed by petitioner.

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15. The counsel for petitioner contended that not only before the Land Reforms Tribunal but also in proceedings in LA.OP.No.35 of 2010 before the Senior Civil Judge, Janagaon, the 6^th respondent’s son on 21.06.2013 admitted that there was a partition between the petitioner and the 6^th respondent, and in any event, since the civil suit filed by 6^th respondent against the petitioner was dismissed for nonprosecution on 20.11.2013, the 3^rd respondent’s order deserves to be set aside.

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16. Pending the Writ Petition, the 6^th respondent died and his legal representatives have been brought on record.

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17. The learned Government Pleader for Revenue as well as Sri K. Chidambaram, counsel for legal representatives of the deceased-6^th respondent supported the order passed by the Court below.

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18. From the facts on record, it is not in dispute that the subject properties originally belong to the father of the petitioner and the 6^th

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respondent and he died. Therefore, petitioner and 6^th respondent would both have a half share in the properties. Though an unregistered partition deed / Thaksimnama / Phaisalanama dt.20.07.1989 was relied upon by the 4^th respondent and the division of the properties mentioned therein was taken as the basis for rectification of records under Section 5 of the Act, the 6^th respondent disputed his signature on the said document before the 3^rd respondent, and contended that it is a forged and fabricated document. He also raised a contention that the 4^th respondent did not issue any notice to him before passing his order on 22.08.2007 and the order is vitiated by principles of natural justice.

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19. The fact that the 4^th respondent had not given any notice to 6^th respondent before passing the order dt.22.08.2007 is not disputed by the counsel for petitioner. But he contended that the 4^th respondent had directed an enquiry through the 5^th respondent and the 5^th respondent had issued notices to the 6^th respondent. It may be that the 5^th respondent was asked to do an enquiry and collect the material by the 4^th respondent, but after such material was collected, before passing a final order, the 4^th respondent ought to have heard the 6^th respondent also. Since this has not been done, there is a clear violation of principles of natural justice.

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20. Had the 4^th respondent given an opportunity to the 6^th respondent, the 6^th respondent might have clarified with regard to the Thaksimnama / Phaisalanama dt.20.07.1989 and stated whether it was

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his signature thereon or not. When this point was specifically raised by 6^th respondent before the 3^rd respondent, since the 3^rd respondent is not competent to decide the question of forgery, the 3^rd respondent rightly took the view that it was for the Civil Court to go into the issue; and since a civil suit was any way pending at that point of time, the order passed by 4^th respondent cannot be sustained. No doubt, while doing so, the 3^rd respondent also expressed a view that the order passed on 29.05.1979 by the Land Reforms Tribunal, to which both petitioner and 6^th respondent were parties, operated as res judicata . When the 3^rd respondent was setting aside the order of 4^th respondent on the ground of violation of principles of natural justice and also on the ground that Civil Court is the appropriate Forum, the 3^rd respondent ought not to have expressed any view on the binding nature or otherwise of the order dt.29.05.1979 of the Land Reforms Tribunal to which both petitioner and 6^th respondent were parties. To this extent only order of 3^rd respondent is set aside. But, I do not find any infirmity in the rest of the order passed by the 3^rd respondent setting aside the order dt.22.08.2007 passed by the 4^th respondent.

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21. Therefore, the Writ Petition is partly allowed to the above extent only. It is held that the decision of the 3^rd respondent in setting aside the order dt.22.08.2007 of the 4^th respondent was correct and both parties are directed to approach a competent Civil Court to adjudicate their inter se claims of title and possession and seek appropriate relief there.

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22. Since considerable time has lapsed, since proceedings under the Land Ceiling Act attained finality and more than 4 ½ years have elapsed since the filing of the Writ Petition and it is not clear as to who is in possession of the subject properties at this point of time, I am not inclined to say anything about the possession of either party, and as and when any party approaches the appropriate Civil Court, the Civil Court will decide the said issue along with the other issues raised by the parties. No order as to costs.

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23. As a sequel, miscellaneous petitions pending if any, in this Writ Petition shall stand closed.

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__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 06-02-2017 Ndr/*

Guda Raghava Reddy, v. Government of Ap, Rep. by its Principal Secretary

Case brief

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Guda Raghava Reddy, v. Government of Ap, Rep. by its Principal Secretary

Case brief

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