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2023 DIGILAW 377 (AP)

Tuplli Nageswara Rao v. Joint Collector Nellore

2023-02-13

D.V.S.S.SOMAYAJULU

body2023
JUDGMENT 1. This writ petition is filed for the following relief: '..to issue a writ in the nature of writ of Certiorari or any other appropriate writ direction, order or orders calling for the records relating to the order dtd. 5/11/2011 passed by the 1st respondent in Case No.Dis (E-10) 4106/2011 and quash the same as arbitrary, illegal without jurisdiction and void...' 2. This Court has heard Sri V.Eswaraiah Choudary, learned counsel for the petitioner, Government Pleader for Revenue and Sri P.Gangirami Reddy, learned counsel for the unofficial respondents. 3. The writ petition was initially filed by one T.Nageswara Rao and after his death; his brother is continuing the writ petition. 4. Learned counsel for the petitioner argued the matter at length and extensively. According to him, the impugned order dtd. 5/11/2011, passed by the Joint Collector-respondent No.1, is totally contrary to law. The petitioner claims title to the property involved in this dispute through his brother T.Nageswara Rao, who executed a Will in his favour bequeathing the property to him. He therefore claims absolute right to the property. According to the writ petitioner, it was realized that respondent Nos.4 and 5 have manipulated the records, created documents and secured Pattadar Pass Books etc., for the very same land. The original petitioners commenced legal action. Learned counsel for the petitioner argues that the petitioner's brother has not executed a valid sale deed in favour of the respondents, in that respondent Nos.4 and 5 are claiming title through an alleged agreement of sale which is also not on record. According to him, the agreement of sale does not confer any title and that the respondents did not even get the same adjudicated under law. He also submits that in the absence of validation, the respondents do not have any right over the property and that the revenue authorities overlooked the same. It is also submitted that on the basis of an unregistered Will also, the respondent Nos.4 and 5 are claiming rights. Learned counsel also relies upon the judgment of the Telangana high Court reported in D.Sudhakar Reddy v. Joint Collector, (Telangana), 2020 (5) ALT 270 and Nadiminti Varalakshmi and another v. The State of Andhra Pradesh, rep., by its District Collector, East Godavari at Kakinada and others., 2014 (1) ALD 677 in support of his submissions. Therefore, he prays for a writ of certiorari to set aside the order dtd. Therefore, he prays for a writ of certiorari to set aside the order dtd. 5/11/2011. 5. In reply to this, learned Government Pleader for Revenue argues the matter on behalf of the State. He points out that after following the due process, the rights of respondent Nos.4 and 5 were recognized. He also points out that the revision was filed by the petitioner's brother in 2007, whereas he had executed an agreement in favour of respondent Nos.4 and 5 on 15/4/1983. He also did not exercise the statutory right and file an appeal within the stipulated period as the Pattadar Pass Books were also issued to C.Venkata Ramanamma in December, 1989. She in turn bequeathed the property to respondent No.4. Thereafter, by following the procedure, the Pattadar Pass Books were also issued to respondent Nos.3 and 4. 6. For respondent Nos.4 and 5, Sri P.Gangirami Reddy argued the matter. It is his contention that the petitioner's brother T.Nageswara Rao sold the property to C.Venkata Ramanamma through an agreement of sale dtd. 15/4/1983 and delivered possession of the land. She paid taxes and obtained the Pattadar Pass Book in January, 1989. Thereafter, the said Venkata Ramanamma executed a Will in favour of the 4th respondent who became the absolute owner of the property. It is also argued that under the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (for short 'the Act'), a period of 30 days is provided to the party to make an appeal under Sec. 5-A of the Act. In this case, the order under Sec. 5-A was passed on 14/12/1997, but the appeal was filed on 21/8/2010. Yet the 2nd respondent entertained the appeal and passed an order. This was rightly challenged and the impugned order dtd. 5/11/2011 was passed clearly holding that the order dtd. 4/7/2011 passed by the respondent No.2 is not correct and the Pattadar Pass Books etc., granted on 14/12/1997 should be restored. Learned counsel also points out that respondent No.1 in the said order i.e. the petitioner herein was advised to file a civil suit under Sec. 8(2) of the Act for establishment of his rights. 4/7/2011 passed by the respondent No.2 is not correct and the Pattadar Pass Books etc., granted on 14/12/1997 should be restored. Learned counsel also points out that respondent No.1 in the said order i.e. the petitioner herein was advised to file a civil suit under Sec. 8(2) of the Act for establishment of his rights. Learned counsel also relies upon the following case law in support of his contentions (1) Smt. P.Ghousia Begum and others v. Basireddy Rukminamma and others, 2018 (5) ALT 148 (2) Ratnamma v. Revenue Divisional Officer, Ananthapur District and others., 2015 (5) ALT 228 and the order of the Division Bench in W.A.No.666 of 2022. It is his contention that the writ petitioner who has a purported claim over the property can only file a civil suit for a declaration when a dispute is raised and that the writ Court is not a proper forum. He also points out that the issues raised by the petitioner, even if they are correct, are disputed questions of fact which cannot be decided in a writ petition. 7. COURT: This Court after examining the issue at length, considering the submissions notices that there are serious issues of fact regarding title which are involved in this matter. T.Nageswara Rao, who initially filed the writ petition has supposedly alienated the property by executing an agreement of sale dtd. 15/4/1983. In the impugned order there is a reference to the agreement of sale and also the application made for regularization of the claim in terms of sec. 5-A of the Act. This Sec. 5-A of the Act, which starts with a non-obstante clause, states that when a person claims title through a transfer otherwise than by a registered document, may apply to the Mandal Revenue Officer for a certificate declaring that such transfer is valid. The order also refers to the said procedure being followed. 8. Apart from that, it is also visible that the Pattadar Pass Books were granted in 1989 to the respondent Nos.4 and 5. Similarly, against an order passed under Sec. 5 of the Act, an appeal shall lie to the Revenue Divisional Officer within 30 days. This procedure was not followed. The Pattadar Pass Books Act is a self-contained code and this Court has held that the hierarchy of challenge must be strictly followed. Similarly, against an order passed under Sec. 5 of the Act, an appeal shall lie to the Revenue Divisional Officer within 30 days. This procedure was not followed. The Pattadar Pass Books Act is a self-contained code and this Court has held that the hierarchy of challenge must be strictly followed. The inordinate delay by the writ petitioner in questioning the Pattadar Pass Book also defeats his rights. Admittedly, as per the record, Pattadar Pass Books were issued to unofficial respondents in 1989, but challenge to the same was mutated long thereafter in 2008. On this ground and the delay in failure to follow the procedure also, the petitioner's case has to fail. 9. The case law cited by the unofficial respondents are squarely applicable to the facts and circumstances of the case. In this case on hand, the petitioner is stating that under the agreement of sale, no title could have been passed from his brother to the predecessor-in-title of the unofficial respondents. It is also argued that the procedure was not followed. However, the effect of Sec. 5-A of the Act, as mentioned earlier, which starts with a non-obstante clause is also a matter which has to be kept in mind. Hence, this contention is negative in this case. 10. The Division Bench of this Court in the judgment reported in Smt. P.Ghousia Begum (3 supra) clearly held that cancellation of a Pattadar Pass Book is not an order that can be passed automatically and that once the Pattadar Pass Book has been issued, it cannot be cancelled automatically until the civil Court finds there is no justification for the same. It was clearly held that unless a competent civil Court decides the actual title of the property in favour of any person, the consequential measure for cancellation of the Pattadar Pass Book does not arise. Similarly, in the case of Ratnamma (4 supra), the Division Bench clearly held that the Act is a self-contained code and that the hierarchy of revisions and appeals should be followed. However, it was also observed in conclusion that a Pattadar Pass Book/the Title Deed Book is a consequential act and these books are reflection of the entries in the original 1-B Register. Therefore, the Division Bench held that it is the entries in the registers which should be cancelled and not the Pattadar Pass Book and Record of Rights Books. However, it was also observed in conclusion that a Pattadar Pass Book/the Title Deed Book is a consequential act and these books are reflection of the entries in the original 1-B Register. Therefore, the Division Bench held that it is the entries in the registers which should be cancelled and not the Pattadar Pass Book and Record of Rights Books. In this case, the entries per se are not challenged. In addition, in W.A.No.666 of 2022 also, the Division Bench held that when there are issues of title involved, both oral and documentary evidence are required to be taken and that the matter should be agitated before a civil Court. 11. Even the judgment in Nadiminti Varalakshmi (2 supra) cited by the learned counsel for the petitioner refers to sec. 8(2) of the Act and states that the person has to seek a declaration before a civil Court. It points out that in that case, since respondent No.5 has questioned the entry in the record of rights, he has to file a civil suit till the parties succeeds in the suit and gets a declaration of her right over the property, the entries already made in the record cannot be altered. In the opinion of this Court, this judgment reflects the correct position of law. The genesis of petitioner's case is, in the agreement of sale said to have been executed in favour of the predecessor in title of the current unofficial respondents. The questions that arise from this plea are: whether valid title is conveyed or not, whether the so-called regularization under Sec. 5-A of the Act confers title on the unofficial respondents or not. 12. In this Court's opinion these are all matters which require evidence, pleading and proof and cannot be decided upon in this writ petition. The writ petition is therefore, dismissed. No order as to costs. 13. All the opinions expressed so far are for the purpose of disposal of this writ petition only. If the writ petitioner still wishes to agitate his claims/rights, all the defences in the law are open to respondents and the order of this Court which is not on merits will not preclude the defendants in the said suit from raising all the available defences. 14. As a sequel, the miscellaneous petitions if any shall stand dismissed.