Allowed

V.Brahmachari, Died per Lrs 2 to 7 R.R District and amp Another v. K.Shankaraiah, R.R Dist and 7 Others

Telangana HC19 Oct 2022WA/1109/2008

Case brief

AI extract

What is this about?

The High Court allowed the writ appeal against the Single Judge's order which remanded a land ownership dispute to the Mandal Revenue Officer. The apex court held that failure of official respondents to file a counter-affidavit did not justify setting aside the revision-dismissal order, as the burden to disprove validity lay on those alleging procedural neglect.

What did the court decide?

The order dated 13.02.2007 of the Single Judge setting aside the Joint Collector's order was set aside and the writ appeal was allowed without costs.

V.Brahmachari, Died per Lrs 2 to 7 R.R District and amp… — Property and Title | Telangana HC (2022)

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[^32e5 ]

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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WEDNESDAY,THE NINETEENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE UJJAL BHUYAN AND THE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDY

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WRIT APPEAL NO: 't10I OF 2008

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writ Appeal under clause 15 of the Letters patent preferred against the order Dated 1310212007 passed in w.p.No.26089 of 1997, on the file of the High court.

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Between:

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V.Brahmachari, S/o Late V.Narsimha, (Died per LRs p-3 to 8)

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Yadla Ananthchari, S/o. .Late V. Narsimha, Aged 51 years, Occ RTC Employee, R/o. Hafeezpet,V. Serlingampally mandEl, nanga'Reaty Disirici.'^"

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Vadla Bala Narsimha Chary,, S/o.Late Vadla Brahma Clhary, Aged 48 years, occBusiness,Rr/o.prot No.- 29,H.No. 1-14BrA, t'tanoinin'rvaEii'ilivJprii Serlingampally, R.R. District.

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.Vadla Bhagyamani, Wo Late Vadla Brahma Chary Aged 63 years Occ Homemaker Rl/o ptot No 29,H.No 1_148/A,Njndin"i--Nrgr;- l,,l"iyf,,; Serilingampally, R.RDistrict.

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Mankalifushpalatha .(Dzughter), .!V/o Late trrl.Ravindra'Chary, Aged 4b years, ucc Homemaker, Ry_o.plot No. 29,H.No. 1_i4BtA, Nanciinin "Nagar, Miyapur, Serlingampally, R.R. District.

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6 F-yglgly_llematatha (Daughter), Occ Home maker, Rl/o. 11_3_3stt16t)t21, 5nntvasa Nagar, seunderabad.

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Bonala Jayalatha (Daughter),. W/o -lonala Ravinder,Aged 3g years, Occ Home ma ker, Fyo. 12-3-33lA,' Nea r Mahatma GanOfri' Siitue-Vooirp-.it, h*i District.

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B. Tatikonda Jyothi Lakshmi (Dagghle0, Wo.T.VBhargava jAged 35 years, Occ Homemaker, R./o.^ptot No.A/57, Bahk.Cotony, cniitilidnt'a r_.B i,6g;i, Rri District

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(Petitioner Nos.3 to 8 are brought on record as LRs of deceased per Court Order-dated 1gto4t\22 Vide tA No i-;ir0i9 fe!!i-o19r.N9l ". in WA No 1109 of 2008)

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...APPELLANTS/RESPONDENTS 4 to 5

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AND

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K.SHANKARAIAH, s/o Venkaiah, R/o Hafeezpet (V), Serlingampally (M), R.R.Dist.

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Kammari Lakshmi Narayana,, s/o Venkaiah, Fl/o Hafeezpet (V), Serlingampally (lV), R.R.Dist.

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Kammari Brahma chari, s/o Venkaiah, Fl/o Hafeezpet (V), Serlingampally^(M), R.R.Dist.

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Kammari Kanaka chari, s/o Venkaiah, Rl/o Hafeezpet (V), Serlingampally (M), R.R.Dist.

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Kammari Krishna chary, s/o Venkaiah, Rl/o Hafeezpet^(V), Serlingampally^(M), R.R.Dist.

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Government of A.P.,Rep. by Secretary Department of Revenue, Secretariat, Hyderabad.

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The Joint Collector, Ranga Reddy district.

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The Mandal Revenue Officer, Serilingampally R.R District

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...RESPON DENTS/PETITONERS/RESPONDENTS

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l.A. NO:^'l OF 2009(WAMP. NO: 2476 OF 2009)

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Between

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V.BRAHMACHARI, S/o Late V.Narsimha, Died per Lrs aged 57^years, Occ:BHEL Empoyee, Hafeezpet(V) Serilingampally(M) R.R District.

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Y adla Ananthchari, S/o. Late V. Narsimha, Aged 51^years, Occ RTC Employee, Rl/o. Hafeezpet,V. Serlingampally mandal, Ranga Reddy District.

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...PETITIONERS

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AND

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K.SHANKARAIAH, s/o Venkaiah, Rl/o Hafeezpet (V), Serlingampally^(M), R.R.Dist.

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Kammari Lakshmi Narayana,, s/o Venkaiah, Rio Hafeezpet (V), Serlingampally^(M), R.R.Dist.

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Kammari Brahma chari,s/o Venkaiah, Rfo Hafeezpet (V), Serlingampally^(M), R.R.Dist.

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Kammari Kanaka chari,s/o Venkaiah, Fl/o Hafeezpet (V), Serlingampally^(M), R.R.Dist.

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Kammari Krishna chary,s/o Venkaiah, Rl/o Hafeezpet (V), Serlingampally^(M), R.R.Dist.

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Government of A.P.,Rep. by Secretary Department of Revenue, Secretariat, Hyderabad.

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The Joint Collector, Ranga Reddy district.

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The lVandal Revenue Officer, Serilingampally R.R^District

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...RESPONDENTS

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Petition under Order 39 Rule 1 & 2 rlw Section 151 CPC^praying thatⁱⁿ the circumstances stated in the affidavit filed in support of the^petition, the^High Court may be pleased grant interim injunction restraining the respondents¹ to 5, their agents or any person claiming through them from interfering into the possession of petitioners in Sy.Nos.^'135,136, 137, admeasuring ac. 3.06 gts., situated at Miyapur Village, Serilingampally Mandal, R.R. District,^pending disposal of WA No. 1 109 of 2008

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Counsel for the Appellants :SRI.VEDULA VENKATRAMANA SENIOR^COUNSEL

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FOR SRI D. DEVENDER RAO

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Counsel for the Respondent Nos.1 to 5 : SRI SATISH KUMAR VARMA

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Counsel for the Respondent Nos.6, 7 & 8 : SRI T SRIKANTH REDDY

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GP FOR REVENUE

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Counsel for the Proposed Respondent NO.g : SRI K. MURALIDHAR^REDDY The Court delivered the following: JUDGMENT

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// ,,

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THD IION'BLE THE CHIEF JUSTICE UJJAL BHITYAN AND

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THE HON'BLE SRI JUS?ICE C.V.BHASKAR REDDY WRIT APPEAL No.11O9 of2OO8

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JUDGMENT: ter the Hoi'bte the^(-hief Justice Lljjat Bhuyoti

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Heard Mr. Vedula Venkatramana, learned Senior counsel for the appellants and Mr. Satish Kumar Varma, learned counsel for respondent Nos.1 to 5; Also heard Mr. T. Srikanth Reddy, learned Government Pleader for Revenue representing respondent Nos.6, 7 & B.

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This appea-i has been preferred against the order dated 13.O2.2007 passed by the learned Single Judge allowing Writ Petition No.26089 of L997 filed by respondent Nos.1 to 5.

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Respondent Nos. 1 to 5 had filed related writ petition assailing the order dated 24.06.1996 passed by the Joint Collector, Ranga Reddy District.

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Respondent Nos. 1 to 5 had filed a Revision

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Petition under Section 9 of the Andhra Pradesh Rights in \ Land and Pattadar Pass Books Act, 1971 (briefly 'the Act'

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hereinafter) before the Joint Collector taking exception to the order of the Mandal Revenue Officer, Serilingampally, dated 16.01 . 1992 validating sale agreement under Section 5-A of the Act in respect of lands admeasuring Ac.1-11 gts in Sy.No.l35, Ac. 1-1i gts in Sy.No.136 and Ac.0-24 gts in Sy.No.137 situated at Miyapur Village, Serilingampalty Mandal in the District of Ranga Reddy (briefly^,subject land, hereinafter).

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As revision petitioners, respondent Nos. I to 5 contended that order dated 16.01.1992 passed by the Mandal Revenue Officer was contrarJi to law, as the Mandal Revenue Officer did not follow the procedure prescribed in the Act.

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Joint Collector by the order dated 24.O6.t996 declined to entertain the revision petition and dismissed the same.

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Against the above dismissal order, the related writ petition came to be filed before the learned Single Judge. Respondent Nos.l to 5 contended that Mandal Revenue Officer had conducted the enquiry for validating the sale

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deed behind their back. No notice was served upon them. Learned Single Judge recorded that official respondent Nos.l to 3 did not file counter a-ffidavit, though counter affidavit was filed by respondent Nos.4 & 5 (appellants herein). Taking the view that the writ Court u,ould have to accept the contention that enquiry of the Mandal Revenue Officer was behind the back of respondent Nos.l to 5, learned Single Judge passed the order dated 13.02.2007 setting aside the order of Joint Collector dated 24.06.1996 and remalding the matter back to the Mandal Revenue Oflicer for fresh enquiry and decision, further directing the parties to maintain status quo pending disposal of the enquiry by the Mandal Revenue Officer.

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B. It is this order which is under impugnment in the present writ appeal.

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Learned Senior counsel Mr. Vedula Venkatramana appearing on behalf of the appellants has dra'"r,n the attention of the Court to the order passed by the learned , Single Judge and submits therefrom that learned Single Judge was not at all justified in allowing the writ petition

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merely on the ground that official respondent Nos. 1,2 & 3 did not file counter affidavit. Learned Single Judge failed to consider the counter affidavit filed by the appellants disputing the contention raised by respondent Nos.l to 5. Therefore, it was not proper for the learned Single Judge to take the view that allegations made by respondent Nos.1 to 5 in the writ petition remained uncontroverted.

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9.1. He has also dras,n the attention of the Court to the order passed by the Joint Collector. He submits that the sale deeds were made long back i.e., on 07.07.1957. It was validated on 16.01.1992. The original pattadars had expired long back. At this stage, learned Single Judge was not justified at all in directing Mandal Revenue Officer to reopen the enquiry. This is more so because according to the officia-l respondents, the related records pertaining to the subject land are not available. In the absence of the record, there is every possibility of miscarriage of justice at this distant point of time. He further submits that appellants are in possession over the subject land since more than 70 /75 years. It is high time that a quietus is

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r--

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given to the entire matter as no useful purpose would be served by reopening proceedings

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9.2. Per contra, learned counsel for respondent Nos. I to 5 submits that no notice was issued bv Mandal Revenue Officer while validating the saie deed. This aspect of the matter was overlooked by the Joint Collector. Notice issued to respondent Nos.1 to 5 pertains to some other land and not the subject land. Therefore, learned Single Judge was justified in relegating the parties to the forum of Mandal Revenue Officer for fresh enquiry and decision

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Submissions made by learned counsel for the parties have received the due consideration of the Court.

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1 1. Before the Joint Collector, order of the Mandal Revenue Olficer dated 16.O1.L992 validating sale agreement was under challenge. As already pointed out above, there was transfer of ownership in respect of the subject land vide the sale deed dated 07.O7.1957 u,hich was an unregistered one. Therefore, in accordance with the provisions contained under Section 5-A of the Act, application was moved by the appellants for regularization

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of sale deed. Mandal Revenue Officer bv the order dated 16.Ol .1992 validated the sale deed. It was this order which was assailed by respondent Nos.1 to 5 in revision proceedings. The revision petition was dismissed by the Joint Collector vide order dated 24.06.1996 in the following

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manner:

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'The suit lands are patta lands. The reuision petitioners haue not produced ang eutdence to proue fheir possession ouer the suit lands. The respondents' name is shown as possessor in pahanies from the uear 1974-75 onuards. The uillage elders deposed before the Mandal Reuenue Officer, that the respondents tuere in possession of the suit lands for the last seueral gears and also confi.ned that the respondents had purchased the lands.

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Hence I see no reason to interfere in the orders of the Mandal Reuenue OlJicer, Serilingampallg. The reuision petition is dismissed."

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From the above, it is seen that Joint Collector had noted that subject lands are patta land. Revision petitioners could not produce any evidence to show or demonstrate possession over the subject land. On the contrary, narnes of the appellants appeared in the Pahalies as being in possession in respect of the subject land from the year 1974-75 onwards. As per evidence

tendered before the Manda_l Revenue Officer, appellants were in possession of the subject land for the last several years besides confirming purchase of land by the appellants. In these circumstances, Joint Coliector declined to interfere with the order of the Manda_l Revenue Ofhcer and dismissed the revision petition.

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Challenge before the learned Single Judge was on the ground that Mandal Revenue Officer had carried out the enquiry while passing the validation order behind the back of respondent Nos. I to 5 by not issuing notice to them. In the writ proceedings, respondent Nos. 1 to 3 did not lile any counter affidavit. However, tl.e appellants who were arrayed as respondent Nos.4 & 5 in the writ proceedings filed counter affidavit contesting and denying the a-llegation of respondent Nos. 1 to 5 that the va-lidation order was passed without following the prescribed procedure.

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Curiously, learned Single Judge took the view 'that^contention of the appellants could not be accepted in the absence of any counter affrdavit by the official

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respondents. Noting that there were no materials before the Court whether the respondent Nos. 1 to 5 r.l,ere given aly notice while passing the validation order, learned Single Judge held that Court had to accept the contention of respondent Nos.1 to 5 that the enquiry by Mandal Revenue Officer was behind the back of the said respondents. Accordingly, order of the Mandal Revenue Officer as confirmed by the Joint Collector was set aside.

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1 5. We are afraid learned Single Judge was not justified 1n adopting such a procedure. Allegations / contentions of respondent Nos. 1 to 5 were contested by the appellants. Therefore it would be wrong to say that these allegations / contentions remain uncontroverted. For failure of the official respondents to file counter affidavit, appellants could not be made responsible and made to face the consequences when appeliants had duly contested the writ petition. That apart, it was for respondent Nos.1 to 5 to place materials on record to support their contention that no notice was issued to them before passing the validation order, because the said contention was raised by respondent Nos.l to 5. Thus, the burden was on

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respondent Nos. I to 5. The burden could not be shifted to the appellants more so when there was clear denial by the appellants

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At this stage, we may also mention that initially while entertaining the writ petition, learned Single Judge had granted stay on OZ.1}.lgg7 for which appellants liled an interlocutory application for vacating the stay which was registered as W.p.M.p.No.30325 of lgg7. While vacating the interim order dated OZ.lO.LggT learned Single Judge recorded as follows:

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According to the petitioners, their grandfather, Kummari Kamakshi and. Vadla ANthanna are joint pattedars and possessors o/ the agricultural land in Sy._l[os. i3 5, 136 and 137 to the extent of Ac.3.O6 gts. Sihtated in Migapur Village, Serilingampallg Mand.al, R..R.District and they got diuided and. each of them got Ac. 1.23 gts and. enjoging their respectiue half shares, after the deah of Kammai Kamakshi, his onlg son Kammai Venkaiah, father of the petitioners ts in continuous possessron and- enjogment of the s_aid property. On 01.03.1993 ttrc iespond.ents 4 & 5 tries to interfere tuith their pos{ession and. theg resisted an on enquiry theg came to know that their father Vadia Narsimha purchased. the lands under agreement of sale and. he fi)ed, petition before the Mandal Reuenue Officer for ualidating the sale and the Mandal Reuenue Officer, u,tithout giuing notice to ttLem passed orders. Then theg fi.led a reuision before the Joint Collector and the same was dismissed. on

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26.04.1996 the petitioner filed this tait petition seeking to quash the proceed.ings.

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,^{They also fited WpMp 30325 of 1992} seeking, interim injunction restrainiig the respondents 4 and S from interfering *itl, th. peaceful possession and enjogment of the said lands and this Court granted inteim injunction and notice and the respondents appeared_ and filed^{a petition} to uacate the interim injunctton in WVMP No.324t of 1997.

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The learned counsel for the respond.ents, utho filed WVMP No.3241 of 1997 to iacate the inteim injunction, submitted. that the Mand al Reuenue Officer passed the ord_ers ualid.ating the sale agreement on 06.0 1 . 1gg2 and the petitioners filed reuision against the said ord.ers before the Joint Collector and. the Jotnt Collector drsmissed the reuision on 24.06.1996 and. the e"^ti:!o".!"^{choseto file the writ petition in May,} 1997 afier lapse of nearlg oni gear and. the Mandal Reuenue Officer as u_tell as the Joint Collector specificallg hetd. that the respondent _ uacate petitioners are in possesslon o/ the suit schedule land and he also jlled. pattid.ar pass book to shotu that they are in poisession oy the said propertg and the petitioners or" nLt in possession and theg misrepresented the facts qnd obtained inteim injunction and requesied to uacate th.e same.

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But the learned counsel for the petitioners sub_mitted that he filed tow third. party affidauits of Kummari Yadaiah and. B. pimesn iia tn"y stuar that theg are in possesslon of the tand-s in the ^{said surueAnumbers and. without giuing} notice or opportunitg theg got managed. in the Mandal Reuenue Office and obtained the ord.ers and on that ground alone the proceed.ings are liable to be quashed and there is no meit in tLLe other side contention.

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It is not in dispute that the petitioners taho filed^uacate stay petition moued. the Mandal Reuenue Offi.cer for ualidating the agreement of sale said to haue been executed. bg the petitioners and he passed the ord.eis on 06.01.1992 ualidating the agreement against which the petitioners unsuccessfullg filed reuision before the Joint Collector. The Joint Collector obserued in his impugned. proceed.ings that the uillage elders deposed- before tte Mandal Reuenue Offi.cer that the respond-ents u.tere in possession of the suit lands for the last seueral qears and the petitioners faited. to produce ang euidence to show the possession of the suit lands. The sqid orders tuere passed on 24.06.96 and the writ petition was filed. in Mag 1997.^'lhe petttioners as uell as the respond.ents are cLaiming to be in possession of the propert in question and it is settled pincipte of law that the questions of fact cannot be d.ecided. in a wit proc3ecling. Whether proper opportunitg is giuen to the petittoners or not uhite ualid.ating thi sale bg the Mandal Reuenue Offtcer is a mitter to be considered duing final disposal of the wit petition. Therefore, taking into consid.eration the material on record and submission of both the counsel and the obseruations made bg tlte Joint Collector in the impugned proceed.iigs and in uiew of the fact that the question o;f possesslon cannot be decided in utrit proceedings, I d_o not find^{any pima} facie material to continue the inteim injunction.

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Reverting back to the order passed by the Joint Collector, we find that Joint Collector had appreciated the evidence taken on record by the Mandal Revenue Officer. The evidence disclosed that appellants were in possession

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of the subject land for the last several years and that they had purchased the lald.

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In these circumstances, we are of the vierv that learned Single Judge fell in error in interfering with the order passed by the Joint Collector and relegating the parties to the forum of Mandal Revenue Officer. Consequently we set aside the order dated 13.02 .2OOZ passed by the learned Single Judge in W.p.No.26Og9 of 1997.

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