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2022 DIGILAW 1445 (AP)

K. J. Pattabhi v. State of Andhra Pradesh

2022-12-09

D.V.S.S.SOMAYAJULU

body2022
ORDER: This Writ Petition is filed by the petitioners questioning the notice dated 15.09.2019, which is affixed on the wall of the petitioners’ house directing them to vacate the land and structures in respect of Ac.1-59 cents in Sy.No.54 of the 1st petitioner and further an extent of Ac.1-44 cents in Sy.No.55 of Patrapalli village, Yadamari Mandal, Chittoor District, issued by the 4th respondent-Tahsildar. 2. The petitioners claim to be the descendants of one Rama Goud, who supposedly purchased this property under sale deed dated 31.05.1936. The 1st petitioner claims to be the owner of Ac.1-59 cents situated in Sy.No.54 and the 2nd petitioner is the owner of Ac.1-44 cents in Sy.No.55 situated in Patrapalli Village, Yadamari Mandal, Chittoor District. 3. Sri S. Lakshminarayana Reddy, learned counsel for the petitioners argues that the 1st petitioner was issued a rythwari patta on 13.07.2000 for Ac.1-59 cents and the 2nd petitioner was issued a rythwari patta for Ac.1-44 cents in Sy.No.55 on 13.07.2000. The names of the petitioners were also mutated in the revenue records. Pattadar Passbooks and Record of Right books were also issued. Learned counsel draws the attention of this Court to the copies of the passbooks and 1-B Record / Namuna that is issued to buttress his arguments that the petitioners are in settled possession and enjoyment of the property. He also submits that initially a suit in O.S. No.903 of 2005 was filed in the I Additional Junior Civil Judge Court, Chittoor, for bare injunction and later after seeking permission from the Court the suit for declaration of title bearing O.S.No.303 of 2005 was filed by the petitioners and consequential relief of injunction was also sought. “A” schedule in the suit is the property involved in the Writ. Learned counsel for the petitioners points out that the 1st respondent is the District Collector, Chittoor and the 2nd respondent is the Mandal Revenue Officer in O.S.No.303 of 2005. He also points out that in the written statement filed the defendants have raised various pleas including the classification of the land. He contends that even in the civil suit it is contended that the property is Cheruvu. 4. Learned counsel for the petitioners also points out that in the vacate stay petition the respondents have filed RSR of the village, which shows that the land in Sy.Nos.54 and 55 is classified as “Cheruvu”. He contends that even in the civil suit it is contended that the property is Cheruvu. 4. Learned counsel for the petitioners also points out that in the vacate stay petition the respondents have filed RSR of the village, which shows that the land in Sy.Nos.54 and 55 is classified as “Cheruvu”. However, learned counsel for the petitioners relies upon the certified copy of the RSR filed by the petitioner in which it is shown that the land is not Cheruvu. This is filed with the rejoinder. Learned counsel also relies upon the Field Measurement Book (FMB) and other documents, which are filed to contend that the land in Sy.Nos.54 and 55 is not classified as Cheruvu. 5. Therefore, learned counsel for the petitioners submits that the summary procedure under the Land Encroachment Act cannot be followed and that the writ petition should be allowed and the order passed, which has been affixed on the wall directing the petitioners to vacate the premises, should be quashed. 6. In reply, learned Government Pleader for Revenue argues the matter at length. He relies upon the documents filed the counter affidavit. It is stated that as per the RSR the land in Sy.Nos.54 and 55 is classified as Cheruvu only. He also points out that the petitioners are clearly encroachers and their relationship to the person, who is allegedly purchased the property in 1936, is not established. Even the said document of 1936 is an unregistered document. Therefore, he submits that the same cannot be relied upon to support the case of the petitioners. He also states that the sale deed is a fake and created document, since in 1936 Chittoor Sub-Registrar was not found. Rythwari patta relied on by the petitioners is also strongly disputed by the learned Government Pleader. It is also stated that the 4th respondent in the writ is not competent to issue Inam patta and that only an Inam Deputy Tahsildar can issue Inam patta. Even otherwise it is stated that he also does not have the power to issue a patta for Cheruvu land. He relies upon the copy of “A” Register, which has been filed with the counter, shows that the land is classified as “Cheruvu” / Lake. As directed by this Court, the original “A” Register and a copy of the same was also produced and filed by the learned Government Pleader. He relies upon the copy of “A” Register, which has been filed with the counter, shows that the land is classified as “Cheruvu” / Lake. As directed by this Court, the original “A” Register and a copy of the same was also produced and filed by the learned Government Pleader. He points out that even in this record this land in Sy.Nos.54 and 55 is classified as Cheruvu and the Government Land. Learned Government Pleader, therefore, submits that the procedure under the Land Encroachment Act was actually followed and as the petitioners have not given a proper explanation, the order was passed. He also argues that this Court has active duty to prevent encroachments in water bodies and that petitioners are, therefore, not entitled to any relief. 7. This Court after hearing both the submissions notices that the petitioners are relying upon an unregistered sale deed of 1936 and claiming that they are the successors to the property. Both of them are claiming rights over the land measuring Ac.1-59 cents and Ac.1-44 cents respectively. They have been issued Pattadar Passbooks and Record of Rights books. The entries in these books as per Section 6 of the Andhra Pradesh Rights in Land and Pattadar Passbooks Act, 1971 carry a certain presumption of correctness. They were issued by the Mandal Revenue Officer. The procedure contemplated under the Act involves examination of records, issuance of notices and then making entries in the books. Similarly 1-B Namuna is also a document having a certain evidentiary value and it shows that the petitioners name is entered in the same for the land in question. 8. It is also a fact that the suit in O.S.No.903 of 2005 was filed for a bare injunction and later the same was withdrawn. A comprehensive suit in O.S.No.303 of 2015 was filed by the writ petitioners as plaintiffs claiming a declaration, of their right and title over the property. The respondents in the suit are Government of Andhra Pradesh represented by the District Collector and the Mandal Revenue Officer. In the said suit the written statement was filed, wherein the defenses that are raised in the writ are also raised. The classification of the land is also asserted as Cheruvu or tank land. The respondents in the suit are Government of Andhra Pradesh represented by the District Collector and the Mandal Revenue Officer. In the said suit the written statement was filed, wherein the defenses that are raised in the writ are also raised. The classification of the land is also asserted as Cheruvu or tank land. It is also a fact that it is admitted in the written statement that the plaintiffs have constructed poultry sheds, raised sugarcane crop and also raised an RCC building etc., in the land. 9. In the reply affidavit filed petitioners have also filed a copy of the RSR which they state on oath is a certified copy. It does not show that Sy.Nos.54 and 55 are classified as Cheruvu. The document filed by the petitioners and the document filed by the respondents are thus at direct variance with each other. The FMB filed by the petitioners also show that there is a distance between Sy.Nos.53, 54 and 55. 10. This Court at this stage is unable to appreciate the contention raised in the counter about the documents filed by the writ petitioners and cannot come to a definite conclusion that the documents are absolutely incorrect or forged or false. In fact, the counter affidavit says that the rythwari patta “appears” to be forged and fabricated and an issue is also raised about the competency of the officer who has issued it. The fact however remains that it is admitted that the petitioners’ names are recorded in 1-B account by the 4th respondent. It is also recorded that the 4th respondent has issued a pattadar passbooks to the writ petitioners. Therefore, it is clear that the petitioners’ documents and possession are admitted. 11. The law on the subject is also well settled. The summary procedure of the eviction under the ROR Act is not permissible when there are disputed questions of fact. In the case on hand the documents filed and the contentions raised clearly show that there are seriously disputed questions. Admittedly, a civil suit has already been filed and it is pending. Relief claimed in the civil suit is also for a declaration of title. The issue is raised in this Writ Petition are also covered in the said civil suit. Since there are clearly disputed questions of fact, this Court is of the opinion that it cannot enter into further adjudication of the matter. Relief claimed in the civil suit is also for a declaration of title. The issue is raised in this Writ Petition are also covered in the said civil suit. Since there are clearly disputed questions of fact, this Court is of the opinion that it cannot enter into further adjudication of the matter. Further, in view of the settled law on the subject the summary procedure for eviction under the Land Encroachment Act cannot be resorted to for the purpose of vacating the petitioners. There are seriously disputed issues to be decided. 12. Therefore, the Writ Petition is allowed. The order dated 15.09.2019 is set aside. The writ petition is allowed making it very clear that the opinions expressed in the writ petition are for the disposal of this writ only and that the determination in the civil suit i.e., O.S.No.303 of 2015 will be final decision in the matter. All the issues raised in the Writ Petition, including the correctness of the 1936 document, the entries in RSR etc., the competency of the officers, classification of the land etc., are left open to be decided in the said civil suit. The protection extended to the petitioners against forcible eviction will also continue till the appropriate orders are passed in the said suit. There shall be no order as to costs. 13. Consequently, Miscellaneous Applications pending, if any, shall stand closed.