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2014 DIGILAW 57 (AP)

Shankeramma v. Mallari

2014-01-21

M.S.RAMACHANDRA RAO

body2014
Judgment 1. This application for Review is filed seeking review of the order dt.20-01-2012 in C.R.P.No.3367 of 2010 of this Court. 2. The said Revision was filed under Art.227 of the Constitution of India by petitioners against respondents challenging the order dt.17-06-2009 in Case No.F1/4431 of 2008 of the Joint Collector-II, Ranga Reddy District (Respondent no.20 herein). The Joint Collector passed the said order under Section 24 of the A.P. (Telanga Area) Inams Abolition Act, 1955 (for short ‘the Act’) reversing the order dt.24-10-2007 in File No.L/2964/2005 dt.24-10-2007 of the Revenue Divisional Officer, Chevella (Respondent no.21 herein) whereunder the latter decided about grant of Occupancy Rights under Section 8 of the Act in respect of land of an extent of Ac.0-18 gts. in Sy.No.214, Ac.1-37 gts. in Sy.No.215 and Ac.3.01 gts. in Sy.No.217 of Palmakul village, Shamshabad Mandal, Ranga Reddy District.( for short ‘the subject land’). 3. As per the Classer register, the above land is a Mafi inam land recorded in the name of one Maqsood Ali Khan, S/o.Mehdi Jung Bahadur. As per the extract of Tenancy Register furnished by the respondents before the Revenue Divisional Officer, one Mallari Ballamma was the protected tenant in respect of Old Sy.No.10 comprising Ac.79. She died in 1965. 4. Originally the Revenue Divisional Officer, Chevella Division vide order dt.10.6.2005 in File No.L/1078/2004 granted Occupancy Rights Certificate (ORC) in favor of petitioners herein under Section 8 of the Act in respect of the subject land. 5. This was challenged by respondents before the Joint Collector, Ranga Reddy District in File Ref.F1/4537/2005. The said Appeal was allowed on the ground that there was no discussion of the issues on merits and the case was remitted to the Revenue Divisional Officer, Chevella for fresh adjudication on merits. 6. After remand, the Revenue Divisional Officer, Chevella in Ref.L/2964/2005 dt.24.10.2007 rejected the claim of the respondents and issued ORC in favor of the Venkateshwara Vyavasaya Sangam (24 others) and one Prabhaji Rao. He confirmed the order dt.10-06-2005 of the Revenue Divisional Officer in File No.L/1078/2004 and rejected the claim of the respondents on the ground that there are no protected tenants and no certificates under Section 38-E of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 were issued in respect of this land. 7. This order was challenged before the Joint Collector -II, Ranga Reddy under S.24 of the Act by the respondents. 8. 7. This order was challenged before the Joint Collector -II, Ranga Reddy under S.24 of the Act by the respondents. 8. The respondents contended that they are legal heirs of Mallari Balamma; that she was protected tenant in respect of Sy.Nos.210, 214, 215, 216, 217, 238, 239, 240 and 241 (Old Sy.No.10) situated at Palmakul village, Shamshabad Mandal, Ranga Reddy District including the subject land; that the Mandal Revenue Officer granted certificate under Section 38-E of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 in favour of legal heirs of late Balamma, w/o Mallari; that her family members had formed Venkateshwara Vyavasaya Sangam (for short ‘the Sangham’); that this Sangham was in possession of the subject land; this was also reflected in the pahani patrika of 1973; and so, they are entitled to an ORC. 9. The petitioners opposed the grant of ORC to respondents contending that they are in possession of the subject land; that they are members of the Sangham; that ORC was issued by the Revenue Divisional Officer, Chevella in favour of petitioners vide proceedings dt.10.6.2005 in Case No.L/1078/2004 of the Revenue Divisional Officer, Chevella; thereafter mutation was affected in their names and pass books were issued in their favor; and that they later sold the land in favor of different persons by executing registered sale deed and handed over physical possession of land to the purchasers. 10. By order dt.17-06-2009, the said appeal was allowed and the ORC dt.19-04-2006 issued by proceedings L/2964/2005 dt.24-10-2007 by the Revenue Divisional Officer, Chevella in favour of petitioners herein was set aside pending adjudication of respective rights of both parties by a competent Civil Court. The Joint Collector observed in the said order that both petitioners and respondents are staking claim in the capacity of possessors and both are contending that they are members of the same Sangham; that pahani for the year 1972-73 did not mention the names of the members of the Sangham; that the respondents failed to establish that they are entitled to grant of ORC and that they belong to one of the 5 categories mentioned in Sections 4 to 8 of the Act or that they were in possession of the lands as on the crucial dates or that the said lands were in their personal cultivation. He further held that though the lands are Inam lands, the dispute relates to inheritance which is essentially one of civil nature and needs to be adjudicated by a competent Civil Court, that the Tribunal and the appellate Authority under the Act are only empowered to deal with issues which are essentially having a bearing on Inam aspects and an Inam Tribunal, exercising power under Section 4 of the Act, cannot go into serious dispute of succession and shares of family members of a protected tenant. He held that even the appellate Authority under Section 24 of the Act cannot adjudicate the complicated issues of inheritance and when the primary issue relates to inheritance, partition etc. the issue, though pertains to Inam lands, ceases to be an Inam issue and assumes a civil nature. He observed that application for registration of occupancy rights has been made long after the date of vesting; the impugned order has been passed in the year 2007, almost 3 decades after the date of vesting; and in view of this, there is a possibility of emerging of multiple interests on the scene since the original claimants are no longer in the picture and have been succeeded by their legal heirs and successors in interest. He further held that a summary enquiry conducted by the Revenue Authorities cannot decide these complex issues and a comprehensive adjudication by a competent Civil Court only can determine these claims. 11. This was challenged before this Court by the petitioners in C.R.P.No.3367 of 2010. 12. By order dt.20-01-2012, the Revision was dismissed confirming the view of the Joint Collector in his order dt.17-06-2009 in Case No.F1/4431/2008. 11. This was challenged before this Court by the petitioners in C.R.P.No.3367 of 2010. 12. By order dt.20-01-2012, the Revision was dismissed confirming the view of the Joint Collector in his order dt.17-06-2009 in Case No.F1/4431/2008. This Court held that after abolition of the inams, all rights and title and interest of protected tenant ceased to exist and the same vested in the State free from all encumbrances under Section 3 of the Act; that under Section 7 of the Act, a protected tenant is entitled to be registered as ‘occupant’ subject to the condition that the person applying for ORC is in possession of the land on the crucial date i.e. 01-11-1973 and he is personally cultivating the land; that the pahanies for 1972-73 show that the Sangham consisting of 24 members is the possessor of the above land; that the pahani for the year 1973-74 also shows that possession of the land is with the Sangham; the names of the members of Sangham are not mentioned therein; therefore, since the Sangham is said to have been formed by the family members of the original protected tenant Mallari Balamma, it is necessary to go into issues of inheritance, partition etc. and then only decide who are the correct legal heirs of original protected tenant; that this exercise can only be done by a competent civil Court as it has a character of a civil dispute; that the petitioners had specifically pleaded before the Joint Collector that they had sold away the lands to different persons by executing different sale deeds and also delivered possession; having regard to the nature of the dispute raised in the matter and the scope of enquiry required to be conducted, no exception can be taken to the observations made by the Joint Collector in the impugned order that a comprehensive adjudication can take place only in a civil Court. It left it open to either of the parties or their successors-in-interest to approach the competent civil Court and avail appropriate remedies available under law. 13. The petitioners seek a review of this order under Section 114 r/w Order 47 Rule 1 CPC. 14. It left it open to either of the parties or their successors-in-interest to approach the competent civil Court and avail appropriate remedies available under law. 13. The petitioners seek a review of this order under Section 114 r/w Order 47 Rule 1 CPC. 14. The learned counsel for petitioners raised 3 contentions:- a) In para-3 of the order, this Court had observed that respondents herein are the legal heirs of Mallari Balamma, but in para-5, it had observed that she died issue-less, and that these findings are contrary to each other; b) Although this Court had noticed that the crucial date of vesting of the land, to be taken into account in considering the grant of ORC, is 01-11-1973, instead of looking into pahani for the year 1973-74, this Court had taken into the account only the pahani for the year 1972-73 in para6 of it’s order; that if the pahani for the year 1973-74, filed with the Review application, is looked into, it would indicate the names of petitioners only; and c) that this Court erred in upholding the view of the Joint Collector that the civil Court is the competent and appropriate authority to decide the claims of successors-in-interest of protected tenant claiming ORC under the Act; that such a view is contrary to the decision of this Court in unreported decision dt.14-11-2008 in W.P.Nos.18038 of 2001 and 2722 of 2005 in Mir Sadath Ali Vs. The Joint Collector, Ranga Reddy District at Hyderabad and others ( 2009(2) ALD 124 ); that in the said decision, this Court had held that the Act is a self-contained Code and provides for internal mechanism to resolve every dispute arises thereunder; and therefore, the Civil Court is not competent to go into the issues arising under the Act and both the Joint Collector and this Court erred in holding that the Civil Court is the appropriate forum to decide these issues. 15. I have noted the submissions of the learned counsel for petitioners. 16. The parameters of Review jurisdiction are very clear and have been settled by the Supreme Court in number of decisions. In Parsion Devi and others Vs. 15. I have noted the submissions of the learned counsel for petitioners. 16. The parameters of Review jurisdiction are very clear and have been settled by the Supreme Court in number of decisions. In Parsion Devi and others Vs. Sumitri Devi and others ( (1997) 8 S.C.C. 715 ), the Supreme Court held that proceedings for review should be considered within the ambit and scope of Order 47 Rule 1 CPC and a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. It held that it lies only for patent error and that an error apparent on the face of record is one which was not of such a nature which had to be detected by a long drawn process of reasons. 17. In Nehali Panjiyara and others Vs. Shyama Devi and others ( (2002) 10 SCC 578 ), the Supreme Court held that a review petition raising an entirely new issue, which was not raised at the time of hearing of the original proceeding before a Court, cannot be entertained. 18. Admittedly, this Court in its order dt.20-01-2012 noticed that 01-11-1973 is the appropriate date to be taken into account in determining the issue regarding grant of Occupancy Rights Certificate. 19. As per the order of the Revenue Divisional Officer dt.24-10-2007, the pahani for the year 1973-74 shows that the above land is recorded in the name of Sri Maqsood Ali Khan and is said to be in physical possession of Sangham consisting of 24 members. Before the Joint Collector, it appears that pahani for the year 1972-73 alone was filed and not pahani for the year 1973-74. Before this Court in the Revision also, pahani for the year 2009-10 issued by the Village Revenue Officer was filed. The pahani for the year 1973-74 was not filed by the petitioners in the C.R.P. For the first time along with this Review application, the petitioners have filed pahanis for the years 1970-71, 1972-73 and 1973-74 allegedly issued in the year 2004 by the office of the Mandal Revenue Officer, Shamshabad Mandal, Ranga Reddy District. On the basis of these documents, they seek to contend that if the pahani for the year 1973-74 is taken into account, they have to be treated as the occupants in possession of the land as on 01-11-1973. On the basis of these documents, they seek to contend that if the pahani for the year 1973-74 is taken into account, they have to be treated as the occupants in possession of the land as on 01-11-1973. No explanation is furnished by the petitioners as to why these documents were not produced at the time of hearing of the Revision before this Court. Therefore, I am not inclined to accept the plea of petitioners that the learned Judge should have looked at the pahani for the year 1973-74 and held in their favour since the said pahani was not placed before the learned Judge at the time of hearing of the said C.R.P. 20. The contents of the pahani for the year 1973-74 filed along with the Review petition, do not tally with the pahani for the year 1973-74 which appears to have been perused by the Revenue Divisional Officer, Chevella at the time of passing of his order dt.24-10-2007. According to the said Official, the Sangham (24 members) and one Prabaji Rao alone were shown as possessors in the said pahani and not the petitioners. In my opinion, reviewing an order passed on material which was not produced at the time of hearing of the C.R.P. and which contains discrepancies with a similar document filed before the Revenue Divisional Officer, would not be proper. It would virtually amount to treating the Review petition as an Appeal, which is impermissible in law. 21. As regards the issue “whether Balamma had died leaving behind the legal heirs or not?” is concerned, both petitioners and respondents claim to be her legal heirs to the exclusion of the other. Even the Joint Collector, in his order dt.17-06-2006 had observed at page-3 that the appellants in case No.F1/714/2008 (which appeal was heard along with the appeal case No.F1/4431/2008) have stated that Smt. Balamma, w/o. Mallari died issueless while the appellants before him in case No.F1/4431/2008 (respondents in this Review petition) have asserted that they are her legal heirs. Whether there are any legal heirs of Smt.Balamma at all and if so, who are the legal heirs of Smt. Balamma, is a matter which needs to be examined. 22. The question is whether this issue can be decided by the authorities under the Act in summary proceedings under Section 10 of the Act. 23. Whether there are any legal heirs of Smt.Balamma at all and if so, who are the legal heirs of Smt. Balamma, is a matter which needs to be examined. 22. The question is whether this issue can be decided by the authorities under the Act in summary proceedings under Section 10 of the Act. 23. In Mir Sadath Ali ( 1 supra)cited by the learned counsel for the petitioners, after considering the provisions of the Act, this Court no doubt took the view that the Act is a complete self-contained Code and the scope and power conferred on the Collector under Section 10 is wide enough to take within its sweep the power to enquire into and adjudicate not only the nature and history of all lands in respect of which claims for ORC are made, but also to decide in whose favour and in respect of which inam land the claim should be allowed. This Court also held that expression ‘in whose favour’ used in Section 10(a) is of wide amplitude, which comprehends all disputes concerning devolution of interest in the claimants through succession etc. It therefore concluded that the Collector is conferred with the power of deciding all the issues, which arise in the course of enquiring into the claims under Sections 4 to 8 of the Act including the issue relating to succession, and it is not necessary to relegate the parties to the Civil Court for adjudication of the issue of succession, as such a course would defeat the very purpose and object of creating the hierarchical machinery by the Act and conferring wide powers on them. 24. Attention of this Court in the said judgment does not appear to have been drawn to the judgment of the Supreme Court in N.Padmamma and others Vs. S.Ramakrishna Reddy and others ( 2008(6) ALD 1 (SC))dealing with the provisions of the same Act. The Supreme Court held that even if the Act is complete code, its operation must be limited to the purpose for which it was enacted. It held that the Act contemplates resolution of dispute between Inamdar on the one hand and his lessees and assignees on the other. It does not take into consideration the dispute, if any, inter se amongst the members of the joint family, particularly when as on the date of grant of occupancy right, there did not exist any such dispute. It held that the Act contemplates resolution of dispute between Inamdar on the one hand and his lessees and assignees on the other. It does not take into consideration the dispute, if any, inter se amongst the members of the joint family, particularly when as on the date of grant of occupancy right, there did not exist any such dispute. It held that Section 10 merely creates a forum for determination of the rights inter se between the parties claiming under the same title. It declared that Civil Court’s jurisdiction would be expressly barred only in respect of matters covered by the Act; that the Act contemplates only divesting of right of an Inamdar, but it does not contemplate cessation of a right in favour of co-sharer or recognition of a right in favour of other co-sharer; that the right has to be determined having regard to the possession by way of personal cultivation; that the word ‘possession’ in such cases should be given a broader connotation; therefore possession of one sharer would be deemed to be the possession others and the provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300A of the Constitution of India, must be strictly construed. It also held that the word ‘person’ cannot be given a limited meaning and would include a body of persons and association of person and when an occupancy right is granted in the name of the Manager of the joint family, it would enure for the benefit of the entire family; although lands vested in the State, as soon as the occupancy right is granted, in the event it is held that the same enured to the benefit of the entire family, it becomes partible; and therefore, the Civil Court’s jurisdiction is not completely ousted. The Court considered it’s earlier decision in Lokraj v. Kishanlal ( (1995) 3 SCC 291 ) and observed that the view expressed therein that civil court has no jurisdiction to entertain a claim for partition of lands governed by the Act, is not correct, and needs to be reconsidered and referred the matter to the Chief Justice for being placed before a larger bench. Therefore in view of the same, I am not inclined to follow the judgment in Mir Sadath Ali (1 supra). 25. Therefore in view of the same, I am not inclined to follow the judgment in Mir Sadath Ali (1 supra). 25. When the Joint Collector, in his order dt.17-06-2009, has himself taken a view that the issues relating to succession in this case are too complex, he would not be in a position to adjudicate them and only a Civil Court would be in a position to do so, and such a view has been confirmed by this Court in C.R.P, in my opinion, the said view does not warrant interference in exercise of the power of Review under Order 47 Rule 1 CPC. It cannot be disputed that the Revenue authorities such as Joint Collector or the Revenue Divisional Officer have not been trained to adjudicate complex issues relating to succession, which sometimes even the Civil Courts find it difficult to decide. In this scenario, to insist that the Revenue authorities alone should decide these disputes would not help the parties either, since any adjudication by such authority, would be wholly unsatisfactory. 26. For all the above reasons, I do not find any necessity to review the order dt.20-01-2012 in C.R.P.No.3367 of 2010. Accordingly, the Review Petition is dismissed. But in the circumstances without costs.