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Andhra High Court · body

2009 DIGILAW 386 (AP)

Airabelli Prabhakar Rao v. Emmadi Koteshwar

2009-06-19

R.KANTHA RAO

body2009
Judgment : This revision petition is filed challenging the order, dated 22.07.2006 passed by the Joint Collector, Warangal in Rc.No.E5/412/2004. 2. The revision petitioner filed a revision petition before the Joint Collector, Warangal under Section 9 of the A.P. Rights in Land and Pattadar Pass Books Act, 1971 r/w Rule 23(1) of A.P. Rights in Land and Pattadar Pass Books Rules, 1989 against the orders passed by the Revenue Divisional Officer, Warangal on 22.11.2004 in File no. A/959/03. 3. The brief facts relevant for consideration in the revision petition may be stated as follows: The revision petitioner having purchased schedule mentioned land in Sy.No. 492 admeasuring Ac.2.15 guntas situate in Waddepally villge of Hanmakonda mandal of Warangal District from one R.Ramachandram on 09.04.1980 under unregistered sale deed applied to the Mandal Revenue Officer, Hanmakonda for regularization and issuance of pattadar pass book in his favour. Considering his application, the Mandal Revenue officer passed orders in File No.B2/Spl/2654/02, dated 15.12.2002 and issued pattadar pass book in favour of the revision petitioner. The respondents 1 and 2 filed an appeal against the said order under Section 5-B of the A.P. Rights in Land and Pattadar Pass Books Act, 1971 before the Revenue Divisional Officer, Warangal contending that their father purchased the land in question i.e. an extent of Ac.03.07 guntas in Sy.No.542/A (old) corresponding to new Sy.No.492 from R.Ramachandram and his name was also entered in Khasra pahani for the year 1954-55 and the same was continued till 1976, but in the subsequent revisional survey, the survey numbers were changed and new Sy.No.492 was assigned in the place of old Sy.No.542. It was further contended that after the revisional survey, the revenue authorities have inadvertently recorded the name of the previous owner R.Ramchandram in the revenue records in respect of the land in question in the subsequent years. It was further contended by the respondents that the revision petitioner forged the thumb impression of R.Ramachndram on the alleged unregistered sale deed, dated 09.04.1980, whereas in fact, the said R.Ramachandram expired on 02.02.1968. In proof of the said fact, they filed the death certificate of R.Ramachandram. They also contended that the Mandal Revenue Officer on the basis of the forged unregistered document without issuing notices to them who are interested parties and real owners effected mutation in the revenue records in contravention of the provisions of the Act and Rules. In proof of the said fact, they filed the death certificate of R.Ramachandram. They also contended that the Mandal Revenue Officer on the basis of the forged unregistered document without issuing notices to them who are interested parties and real owners effected mutation in the revenue records in contravention of the provisions of the Act and Rules. It was also contended by them that the land in Sy.No.492 of Waddepally is a non-agricultural land, no agricultural operations have been carried out in the said lands since 1976 and the entire land is covered by house sites and residential houses, their father filed declaration before the Special Officer, ULC, and he was also declared as surplus landholder of 1382 square meters vide order No. A1/346/76, dated 07.11.1981. Nextly it was contended by them that after obtaining permission from the ULC authorities vide orders No.D.Dis.A4/683/86, dated 31.3.1986, they sold the house sites in the land in question to various persons from 1993 onwards. According to them, since it is a nonagricultural land wherein the agricultural operations were discontinued from 1976, the ROR Act has no application. In the order dated 22.11.2003 in File No.A/959/2003, the learned Revenue Divisional Officer held as follows: "As per the pahanies for the years 1954-55 to 1965-66 the name of late Emmadi Papaiah was recorded as pattedar against Sy.No.542/B9 (1-29) & 568 (0.22). The Mandal Revenue Officer did not issue notice to the respondents nor did he publish a copy of the notice in the village as contemplated under the rules. The respondents filed Rythu pass book and land revenue receipts for old Sy.Nos.568 and 542 up to the year 1978-79 in the name of the pattadar Emmadi Papaiah. They also filed death certificate of the original owner A.Ramachandram issued by Warangal Municipality wherein it was clearly mentioned that the said Ramachandram died on 02.02.1968. Whereas the revision petitioner filed sale deed dated 09.04.1980 said to have been executed by Ramchandram in respect of the schedule mentioned land of an extent of Ac.2.15 guntas in Sy.No.492. The learned Revenue Divisional Officer also gave a clear finding that the entire Waddepally is within the pheripheral of urban agglomeration and such lands have to he deleted from ROR record and issuance of mutation certificate by the Mandal Revenue Officer is illegal." 4. The learned Revenue Divisional Officer also gave a clear finding that the entire Waddepally is within the pheripheral of urban agglomeration and such lands have to he deleted from ROR record and issuance of mutation certificate by the Mandal Revenue Officer is illegal." 4. Arriving at the aforementioned conclusions, the learned Revenue Divisional Officer, Warangal cancelled the order passed by the Mandal Revenue Officer issuing mutation certificate in favour of the revision petitioner. 5. Feeling aggrieved, the revision petitioner filed a revision petition under Section 9 of the A.P. Rights in Land and Pattadar Pass Books Act r/w 23(1) of the Rules before the Joint Collector, Warangal. The learned Joint Collector while disposing of the revision took into consideration the report submitted by the Mandal Revenue officer, Warangal, dated 23.03.2006 wherein he specifically stated that in the revisional survey the old Sy.No.542/A and 542 were correlated with new survey numbers 492 and 493 and the land in question of an extent of Ac.2.15 guntas in Sy.No.492 and an extent of 2 guntas in Sy.No.493 is not an agricultural land which is also evident from the Xerox copy of the pahani for the year 1995-96 wherein it was recorded in the occupation column as residential houses. Accordingly, the learned Joint Collector concurred with the findings of the Revenue Divisional Officer that the A.P. Rights in Land and Pattadar Pass Books Act, 1971 has no application to the land in question. The learned Joint Collector also found that the Mandal Revenue Officer did not issue any notices to the interested parties and did not conduct any enquiry and thereby did not follow the procedure prescribed under the ROR Act before issuing certificate to the revision petitioner. It was also further observed by the learned Joint Collector that the unregistered sale deed relied upon by the revision petitioner was filed on 21.12.2002 whereas the Mandal Revenue Officer, Hanmakonda issued orders on 15.12.2002 which indicates that without verifying the document and without following procedure laid down under the ROR Act, the Mandal Revenue Officer issued orders illegally. 6. Arriving at the above said findings, the learned Joint Collector confirmed the order of the Revenue Divisional Officer and dismissed the revision petition filed by the revision petitioner. 7. Challenging the correctness and legality of the order passed by the learned Joint Collector, the revision petitioner filed the present revision. 8. 6. Arriving at the above said findings, the learned Joint Collector confirmed the order of the Revenue Divisional Officer and dismissed the revision petition filed by the revision petitioner. 7. Challenging the correctness and legality of the order passed by the learned Joint Collector, the revision petitioner filed the present revision. 8. The learned counsel appearing for the revision petitioner would contend that the third respondent/Joint Collector, Warangal failed to see that the land is not converted into non-agricultural land, there is no notification as such to that effect by the government, he also failed to exercise the jurisdiction properly vested in him by giving a finding that the pattadar pass books Act cannot be applied to the present case and that he ought to have seen that O.S.No. 10 of 2003 for declaration of title has already been filed by the revision petitioner in the Court of the II Additional District Judge, Warangal wherein an order granting status-quo was passed by the said civil Court on 26.02.2003 and he ought to have waited for the result of the suit. 9. On the other hand, the learned counsel appearing for the respondents would submit that the order passed by the 4th respondent/Revenue Divisional Officer is substantially on the ground that the 5th respondent/Mandal Revenue officer issued the certificate in favour of the revision petitioner without following the procedure contemplated under the Act and Rules and also not even serving notices on the respondents and without conducting any proper enquiry, and the same was rightly confirmed by the Joint Collector. It is further submitted that the only remedy open to the revision petitioner is to establish his rights by filing a suit in a competent civil Court, but the suit filed by him was dismissed for default on 12.10.2007 by the II Additional District Judge, Warangal and so far the revision petitioner did not take any steps to restore the same to file and as such, he is debarred from questioning the correctness of the order passed by the Joint Collector, Warangal. 10. I have heard both the counsel. Perused the material papers available on record and the relevant provisions of the A.P. Rights in Land and Pattadar Pass Books Act, 1971 including the Rules. 10. I have heard both the counsel. Perused the material papers available on record and the relevant provisions of the A.P. Rights in Land and Pattadar Pass Books Act, 1971 including the Rules. Before proceeding to discuss the legality and correctness of the order passed by the learned Joint Collector, I deem it essential to refer to certain provisions of the Act and Rules. 11. Under Section 5-A of the Act, the Mandal Revenue Officer is competent to regularize certain alienations or transfers relating to lands effected otherwise than by registered documents. But before issuing the certificate to the alleged alienation declaring that the transfer or alienation is valid, the Mandal Revenue Officer has to conduct an enquiry. 12. Under Section 5-B of the Act, an appeal lies to the Revenue Divisional Officer against the order passed by the Mandal Revenue Officer. Section 9 of the Act empowers the Collector to exercise powers of revision either suo motu or on an application made by any party against the orders passed by any recording authority i.e. Mandal Revenue Officer or Revenue Divisional Officer. 13. It may also be noticed that under Section 3(3) of the Act any person affected by an entry in such record of rights within a period of one year from the date of notification, apply for rectification of the entry and the decision of the officer concerned on the said application shall be final subject to the provisions of Section 9 which invests the Collector with the powers of revision. Section 8(2) lays down that 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 against any person denying or interested to deny his title to such right under Chapter VI of the Specific Relief Act, 1963 for declaration of his right and the entry in the record of right shall be amended in accordance with such any declaration. 14. From the scheme of the Act it is therefore obvious that the entry in the pattadar pass books does not confer any title on the person but it is a prima facie evidence that the person in whose name the entry is made is in possession of the land and also has some right or interest in the land. 14. From the scheme of the Act it is therefore obvious that the entry in the pattadar pass books does not confer any title on the person but it is a prima facie evidence that the person in whose name the entry is made is in possession of the land and also has some right or interest in the land. However, Section 6 of the Act lays down that every entry in the record of rights shall be presumed to be true until the contrary is proved. The presumption is a rebuttable presumption and the party who disputes the genuineness of the entry has to place rebuttal evidence to displace the presumption. Thus, the purpose of the act is to make entries in record of rights and to issue pattadar pass books to the persons in occupation of the land, which is prima facie evidence of the right or interest in the land and the nature of such right. As regards making entries in the record of rights and issuing pattadar pass books, the Act contains a prescribed procedure and lays down the powers of the authorities in relation to passing orders with regard to making entries and for the above stated limited purpose the Act contains a complete mechanism and the only remedy open for any party aggrieved by an entry made in record of rights regarding his rights is only to file a civil suit to declare such right and get the entry amended in accordance with the decree passed by the civil Court in his favour. 15. In support of his contention that the impugned order passed by the Joint Collector, Warangal is not in accordance with law, the learned Counsel for the revision petitioner relied upon the following decisions: 1) In R.S. MURTHY AND ANOTHER v. JOINT COLLECTOR, EAST GODAVARI DISTRICT, KAKINADA AND OTHERS ( 2001 (4) ALT 338 {D.B.}) it is held as follows: "When a person files an application for correction of pass book, he cannot be asked to file a civil suit because some third party has raised the question of adverse possession therein. It is true that the revenue authorities cannot decide the questions of title and possession but subject to any decree or order that may be passed in a civil suit, the revenue authority should exercise their statutory power. It is true that the revenue authorities cannot decide the questions of title and possession but subject to any decree or order that may be passed in a civil suit, the revenue authority should exercise their statutory power. The provisions of A.P. Rights in Land and Pattadar Pass Books Act, 1971 (for short 'ROR Act'} are required to pass appropriate reasoned order after giving opportunity of hearing to both the parties. 2) In B. PUSHPAMMA AND OTHERS v. JOINT COLLECTOR, R.R. DISTRICT, HYDERABAD AND OTHERS ( 2005(1) ALD 260 ) it is laid down as follows: "If any person is aggrieved as to any right by an entry made in any record of rights, he may institute a suit against any person denying or interested to deny his title by seeking declaration of title, in such an event Section 8(2) of the Act comes into operation and such questions cannot be decided in a summary enquiry under provisions of Act. It can be decided only by a competent civil Court but not in a writ proceeding." 16. The learned counsel appearing for the revision petitioner invited attention of this Court to Rule 9(1)(c) (ii) which relates to making entries in respect of cases involving succession by heirship where the Mandal Revenue Officer shall hold a summary enquiry as to who has the right to succeed to the property of the deceased registered holder according to the principles of law of succession governing the parties and shall give notice to all the persons interested and unless a declaration is filed within three months from the date of notice that a suit has been instituted in a civil Court by any person to establish his superior title and an authenticated copy of the plaint in the suit is produced by such person, the result of the suit should be awaited before taking further action. 17. Basing on the above rule, the learned counsel tried to impress upon this Court that the Revenue Divisional Officer who referred in his order about the pendency of O.S.No. 10 of 2003 on the file of the II Additional District Judge, Warangal should have waited for the result of the said suit filed by the revision petitioner without passing any orders in the appeal. 18. 18. Perusal of the order passed by the Revenue Divisional Officer does not contain any reference to O.S.No.10 of 2003 on the file of II Additional District Judge, Warangal nor is it the specific case of the revision petitioner that he produced any copy of the plaint in the said suit before the Revenue Divisional Officer. Moreover, the rule relied upon by the learned counsel relates to the procedure required to be adopted by the Mandal Revenue Officer before registering an entry in favour of a party wherein the question relating to the succession or heirship is involved. In the instant case, there is no such dispute between the parties. The only dispute is with regard to the sale deeds obtained by them from the original owner. Therefore, Rule 9(1)(c) (ii) has no application to the facts of the present case. Further it is submitted by the learned counsel appearing for the respondents that O.S.No. 10 of 2003 filed by the revision petitioner on the file of the Court of the II Additional District Judge, Warangal was dismissed for default on 12.10.2007 and so far even though more than one year six months has been elapsed, the revision petitioner did not take any steps to get the dismissal order set aside. In proof of the same, the learned counsel appearing for the respondents filed a Xerox copy of the order at the hearing of the revision petition. The learned counsel appearing for the revision petitioner did not dispute the said fact. In R.S. Murthy's case relied upon by the learned counsel for the revision petitioner, the Division Bench of this Court has specifically ruled that even though the revenue authorities cannot decide the title and possession, they should exercise their statutory power subject to any decree or order that may be passed in civil suit. Similarly in B.Pushpamma's case relied upon by the leaned counsel appearing for the revision petitioner, the learned single Judge of this Court has clearly laid down that until and unless the title of 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. 19. From the facts of the present case it is obvious that there is a serious dispute between the parties with regard to the title of the property in question. 19. From the facts of the present case it is obvious that there is a serious dispute between the parties with regard to the title of the property in question. The revision petitioner also instituted a civil suit but failed to prosecute the same, on account of which it was dismissed for default. More over, the grievance of the revision petitioner is not that any entry is registered in the record of rights in favour of the respondents in respect of the property in dispute. His grievance is that the order issuing certificate in his favour by the Mandal Revenue Officer to effect entry in his favour was set aside by the Revenue Divisional Officer in the appeal and the same was confirmed by the Joint Collector in the revision. 20. As discussed above, whenever any party disputes the entry registered in the record of rights, his remedy is only by way of civil suit to declare his right as provided under Section 8(2) of the Act but not otherwise. The only course having regard to the facts and circumstances of the case open to the revision petitioner therefore is only to get his title declared to the property by decree of a competent civil Court and then approach the revenue authorities to register his name in the record of rights. Further basing on the material available on record, the Revenue Divisional Officer as well as the Joint Collector gave concurrent findings to the effect that the Mandal Revenue Officer issued certificate in favour of the revision petitioner without conducting any enquiry and without even issuing notices to the respondents and also that the land in question is the nonagricultural land for which the A.P. Rights in Land and Pattadar Pass Books Act, 1971 has no application. Since the findings are based on evidence and strictly in accordance with law, they cannot be assailed in this revision. This Court in exercise of powers of revision under Section 115 C.P.C. or by exercising jurisdiction under Section 227 of Constitution of India is not supposed to issue directions to the revenue authorities to make entries in a particular way or to strike out the entries, which were already made. The entries have to be effected only in accordance with the provisions of A.P. Rights in Land and Pattadar Pass Books Act, 1971 by the revenue authorities. The entries have to be effected only in accordance with the provisions of A.P. Rights in Land and Pattadar Pass Books Act, 1971 by the revenue authorities. The Act provides a complete mechanism in respect of making entries in the revenue records. When once the order in respect of the entry made in revenue records became final, after confirmation by the Collector by exercising powers under Section 9 of the Act, the only remedy left open to the party aggrieved is to obtain a decree getting his rights declared by a competent civil Court, as provided under Section 8(2) of the Act. 21. For the reasons aforementioned, there is no illegality or irregularity in the order passed by the learned Joint Collector, Warangal in exercise of his powers under Section 9 of the Act, and the impugned order requires no interference in this revision and the same is confirmed. Consequently, the revision petition is dismissed with costs.