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2024 DIGILAW 624 (AP)

N. Sankara Prasad v. Prl Secy Rev Dept

2024-06-18

U.DURGA PRASAD RAO

body2024
ORDER : (U. Durga Prasad Rao, J.) : The petitioner prays for writ of mandamus declaring the action of the respondents 3 and 4 in issuing pattadar pass-books (PPBs) and title deeds (TDs) to respondents 5 to 7 with Khatha Nos.2651, 2652 and 2650 respectively for the lands mentioned in the petitioner’s notice dated 17.06.2017 as illegal, arbitrary and consequently set aside the PPBs and TDs. 2. Petitioner’s case succinctly is thus: (a) One Cherukuri Venkaiah was the owner of the subject properties and some other properties. His wife is Smt. Varalakshmamma through whom he begot a daughter by name Anasuya and the said Anasuya begot two daughters namely Velaga Kamala and Vadlamudi Sarada /respondents 5 and 6 herein. After the death of Varalakshmamma, he married one Cherukuri Satyavathi and she was blessed with son who died within one year after his birth. Venkaiah died on 20.05.1979. Thereafter Satyavathi adopted Cherukuri Ramakrishna/7th respondent under a registered adoption deed. (b) While so, V. Sarada / 6th respondent filed OS No.226/1987 on the file of Additional Senior Civil Judge, Guntur against Cherukuri Satyavathi and respondents 5 and 7 for partition of plaint schedule properties. The trial Court passed a preliminary decree holding that the respondents 5 and 6 herein are entitled to ¼th share each and Smt. Satyavathi is entitled to remaining ½ share. The court held that the adopted son i.e., 7th respondent has no right in the property as his adoption has not divested the rights of the adoptive mother. Questioning the preliminary decree, Satyavathi filed A.S.No.2437/2000 on the file of High Court of Andhra Pradesh. (c) Pending appeal Satyavathi died. She bequeathed all her properties in favour of the writ petitioner. Hence he filed petition to add him as LR of the deceased Satyavathi on the strength of the Will. The Appellate Court called for a report from the trial Court regarding the genuineness of the Will. The lower Court expressed doubts regarding the genuineness of the Will. However, the Division Bench of the High Court upheld the Will and permitted the writ petitioner to come on record as LR of Satyavathi. The Division Bench also directed him to deposit of Rs.2,29,544/- as mesne profits in the appeal and he obliged. While so, the High Court in its judgment dated 31.07.2000 confirmed the judgment of the trial Court. However, the Division Bench of the High Court upheld the Will and permitted the writ petitioner to come on record as LR of Satyavathi. The Division Bench also directed him to deposit of Rs.2,29,544/- as mesne profits in the appeal and he obliged. While so, the High Court in its judgment dated 31.07.2000 confirmed the judgment of the trial Court. It further held that as the writ petitioner was added as LR of Satyavathi on the basis of summary enquiry regarding genuineness of Will, as such he has to seek remedy by filing a separate suit and accordingly the writ petitioner filed OS No.202/2015 on the file of II Additional District Judge, Guntur against respondents 5 to 7 seeking for partition of plaint schedule properties into four equal shares and allot three such shares to him on the basis of Will. The said suit is pending. (d) Now the grievance of the petitioner is that pending the said suit respondents 5 and 6 initiated final decree proceedings and obtained a final decree in OS No.226 of 1987 and they are trying to execute the decree. The writ petitioner is in possession of the property after the death of late Satyavathi. However, without executing the decree, unofficial respondents executed registered partition deed among themselves and applied for issuance of PPBs and TDs on the basis of the final decree proceedings and registered partition deed even though they are not in possession of the properties. They cannot seek for PPBs and TDs as the suit filed by the petitioner is pending. Coming to know about their attempts, the petitioner issued a legal notice to the unofficial respondents and also the revenue authorities. Despite it, the 4th respondent is proceeding to issue PPBs and TDs to the unofficial respondents without hearing the petitioner. Hence the petitioner earlier filed W.P.No.24333 of 2017 and this Court passed the following order “It is to be noted that at the first instance, the petitioner sent notice dated 17.06.2017 on the proposed action of issuing pattadar passbooks or title deeds. This Court has no reason to doubt that the 4th respondent will not only take note of the notice but is under obligation to follow the procedure. This Court has no reason to doubt that the 4th respondent will not only take note of the notice but is under obligation to follow the procedure. This court has difficulty either in considering the prayer or granting the relief as prayed for on mere apprehension.” (e) In spite of the said order, the 4th respondent issued PPBs and TDs in favour of the unofficial respondents and thus violated the statutory procedure and also trust reposed on him by this Court. Hence the writ petition. 3. The 4th respondent filed counter opposing the writ petition contending thus: (a) Respondents 5 to 7 have, on 26.7.2017 applied through online for mutation of their names for the respective properties obtained by them through registered partition deed dt: 24.4.2017 which was executed pursuant to the final decree in O.S.No.226/1987 on the file of Additional Senior Civil Judge, Guntur and A.S.No.2437 of 2000 on the file of High Court of A.P. (b) While narrating the facts about the partition suit in O.S.No.226 of 1987 filed by 6th respondent and passing of the preliminary decree and thereafter Satyavathi’s filing A.S.No.2437/2000 and her demise pending appeal and the High Court’s confirming the judgment of the trial Court etc., facts, it is further mentioned in the counter that the writ petitioner who got added himself as LR of Satyavathi in the A.S.No.2437/2000, withdrew himself from final decree proceedings and therefore the civil Court passed the final decree on 28.01.2017 and addressed to the Sub-Registrar, Pedakakani on 20.01.2017 for making necessary entries in the concerned records as per the final decree and the same was registered as Document No.2/2017. Thus the registered partition deeds Nos.446/2017, 448/2017, dated 24.04.2017 were executed to the effect that ¼th share each allotted to respondents 5 and 6 and ½ share to 7th respondent and properties were also divided accordingly. The parties accordingly applied for mutation and when their applications were pending, the writ petitioner issued lawyer notice dated 16.06.2017 stating that as per the direction of the High Court in A.S.No.2437/2000 he filed O.S.No.202/2015 on the file of II Additional District Judge, Guntur for partition basing on the Will executed by Satyavathi in his favour and as the suit is pending, the PPBs may not be issued to the respondents 5 to 7 herein. The 4th respondent sought for legal opinion from Government Pleader, Guntur who opined that the Tahsildar is bound to make mutation on the basis of valid order of the civil Court. Therefore, after due enquiry and having found that the respective lands were in physical possession of the applicants, the 4th respondent effected mutation in webland adangal on 22.07.2017. After effecting the mutation, published the particulars and called for objections but no objections were received. Thereafter the 4th respondent issued PPBs and TDs in favour of the applicants. The 4th respondent thus prayed to dismiss the writ petition. 4. Respondents 5 and 6 filed counters opposing the writ petition contending thus: (a) It is contended that the claim of the petitioner that Late Satyavathi bequeathed all her properties in his favour under a registered Will is not correct and the said matter is an issue between the petitioner and the 7th respondent who are claiming the properties of late Satyavathi and respondents 5 and 6 are not concerned with the same. The said matter has to be decided in the suit OS.No.202 of 2015 filed by the writ petitioner on the file of II Additional District Judge, Guntur. (b) The allegation that Cherukuri Satyavathi blessed with a son who died within one year after his birth is false and petitioner has no right to make any claim to that effect. The rights of Satyavathi on one side and respondents 5 and 6 on the other were decided conclusively to the effect that Satyavathi would get ½ share and respondents 5 and 6 would get remaining ½ share in the properties in question as in O.S.No.226 of 1987. As against the judgment in A.S.No.2437/2000, SLP Nos.14697-14698 were filed by the writ petitioner before the Hon’ble Supreme Court and they were dismissed on 15.09.2014. (c) Be that as it may, if the petitioner succeeds in O.S.No.202/2015 now pending on the file of II Additional District Judge, Guntur, he will be entitled for ½ share in the properties that were allotted to the share of Satyavathi in O.S No.226 of 1987. The petitioner is barred and estopped under law to question the decree passed in O.S No.226 of 1987. The petitioner has no right to claim ¾ share on the basis of Will as his testatrix herself was not granted such share in O.S No.226 of 1987. The petitioner is barred and estopped under law to question the decree passed in O.S No.226 of 1987. The petitioner has no right to claim ¾ share on the basis of Will as his testatrix herself was not granted such share in O.S No.226 of 1987. (d) The contention of the petitioner that he is in possession of the property is not correct. Therefore, the petitioner cannot contend that respondents 5 and 6 cannot apply and obtain PPBs and TDs. (e) It is further contended that in O.S.No.226/1987, a final decree petition in I.A.No.970/2002 was filed and an Advocate Commissioner was appointed and he also filed report along with a plan dividing the plaint schedule properties into four equal shares. Pursuant to the Commissioner’s report, the 6th respondent herein filed a memo that she has no objection to allot items shown in the Commissioner’s report to her share and 5th respondent (petitioner therein). The counsel for 5th respondent (petitioner therein) and 7th respondent (3rd respondent therein) endorsed no objection on that memo. The counsel for the present writ petitioner (4th respondent therein) made an endorsement dated 01.11.2016 as follows: “Seen and opposed. Nandipati Sankara Prasad is no longer party to the case as the Hon’ble High Court did not recognize him as LR of Ch. Satyavathi” (f) Further the present writ petitioner filed a petition in I.A.No.173 of 2015 in IA No.1023 of 2008 in I.A.No.970/2002 in O.S.No.226 of 1987 seeking re-deposit of Rs.2,29,544/- by the plaintiff with interest for being paid back to him which was ultimately dismissed. The writ petitioner herein thus deliberately suppressed the above important and crucial facts relating to the final decree proceedings in the present writ petition. The above facts would clearly show that the writ petitioner abandoned his right to object the further proceedings pursuant to the decree in O.S.No.226 of 1987 including physical possession, even though he was impleaded in A.S.No.2437/2000 as party, may be fearing payment of mesne profits for the period from 1986 onwards. As the petitioner sought for stay of passing final decree for mesne profits in A.S.No.2437/2000 claiming himself as LR of late Satyavathi, he was directed to deposit some amount and that direction or deposit will not give him any right to claim exclusive possession of suit schedule property which were joint in between late Satyavathi and respondents 5 and 6. As the petitioner sought for stay of passing final decree for mesne profits in A.S.No.2437/2000 claiming himself as LR of late Satyavathi, he was directed to deposit some amount and that direction or deposit will not give him any right to claim exclusive possession of suit schedule property which were joint in between late Satyavathi and respondents 5 and 6. The petitioner did not participate either in the division of the properties or mesne profits proceedings and 7th respondent, the adopted son of late Satyavathi alone participated as LR of late Satyavathi representing her ½ share. In fact the said 7th respondent is in possession of ½ share of late Satyavathi. The daughters of Anasuya are in possession of their respective shares after final division. The decree dated 04.01.2017 for mesne profits for the period from 2005 to 2017 in favour of the respondents 5 and 6 was granted against the 7th respondent by treating him as LR of deceased Satyavathi as per the preliminary decree. Nobody admitted the petitioner’s possession as claimed. He had deliberately abandoned the same as submitted above. However the petitioner is deliberately misinterpreting the observation of this Court in A.S.No.2437/2000 that the finding recorded by the trial Court does not preclude the 2nd appellant to institute a fresh suit and trying to mislead the Courts. In the judgment in A.S.No.2437/2000 this High Court observed that the finding recorded by the learned trial Judge does not preclude the 2nd appellant (writ petitioner) to institute a fresh suit basing on the registered will allegedly executed by late Satyavathi. The validity of the Will is not at all necessary to decide the issue involved in the appeal. (g) From the above observation it is clear that the liberty was given to the petitioner to institute a suit to prove the validity of the Will said to have been executed by Late Satyavathi and not for questioning the other findings or shares or mesne profits granted in the decree. The dispute regarding the validity of the Will is in between the petitioner and 7th respondent and respondents 5 and 6 have nothing to do with the same and they are not claiming the shares of properties of late Satyavathi. After following due procedure only the revenue authorities issued PPBs and TDs. Hence the writ petition is liable to be dismissed. 5. The 7th respondent did not file counter. 6. After following due procedure only the revenue authorities issued PPBs and TDs. Hence the writ petition is liable to be dismissed. 5. The 7th respondent did not file counter. 6. Heard Sri Koneti Raja Reddy, learned counsel for the petitioner and learned Government Pleader for Revenue for respondents 1 to 4, Sri Gurram Ramachandra Rao, learned counsel for respondents 5 and 6 and Sri Doddala Koteswara Rao, learned counsel for respondent No.7. 7. The main plank of argument of learned counsel for the petitioner Sri Koneti Raja Reddy is that since Late Satyavathi executed a registered will dated 19.10.1994 under document No.447/13/C3/1994 in favour of the writ petitioner, pursuant to which he already filed suit O.S.No.202/2015 on the file of II Additional District Judge, Guntur against respondents 5 to 7 herein seeking partition of plaint schedule properties into four equal shares and allot three such shares to him by virtue of the aforesaid Will and as the said suit is pending, the 4th respondent ought not have issued PPBs and TDs in favour of the respondents 5 to 7 which is unjust and illegal and hence those PPBs and TDs issued in favour of the respondents 5 to 7 shall be liable to be set aside. 8. Per contra, Sri Gurram Rama Chandra Rao, on behalf of respondents 5 and 6 would argue that in A.S.No.2437/2000 this Court while affirming the judgment in O.S.No.226 of 1987 held that respondents 5 and 6 in this writ petition are entitled to ¼ share each whereas Late Satyavathi, the adoptive mother of 7th respondent is entitled to remaining ½ share. So far as the claim of the writ petitioner that Late Satyavathi executed a registered Will dated 19.10.1994 and thereby he is entitled to her properties in exclusion of her adoptive son i.e., the 7th respondent is concerned, learned counsel strenuously argued that so far as that issue is concerned, whether the writ petitioner or the 7th respondent shall get her share is in an issue between the petitioner and the 7th respondent and respondents 5 and 6 have nothing to do with the same. Learned counsel argued that this Court while deciding the appeal has held that so far as the validity of the Will propounded by the writ petitioner is concerned, he was not preclude to institute a fresh suit basing on the registered Will and validity of the said Will was not all necessary for deciding the issue involved in the appeal. Accordingly, the writ petitioner filed O.S.No.202/2015 on the file of II Additional District Judge, Guntur and the same is pending. Thus the validity and genuinity of the WILL is an issue between the petitioner and the 7th respondent but the respondents 5 and 6 are not concerned with the same. He would further argue that in view of findings in judgment in A.S.No.2437/2000, respondents 5 to 7 have taken the final decree proceedings through the Advocate Commissioner and obtained their respective shares. Thereafter the 4th respondent issued PPBs and TDs to them for their respective shares. Learned counsel thus concluded that the petitioner cannot challenge PPBs and TDs issued in favour of the respondents 5 and 6 and with regard to the remaining half share. Himself and 7th respondent can proceed in accordance with the judgment in O.S.No.202/2015. He thus prayed to dismiss the writ petition. 9. Sri Doddala Koteswara Rao, learned counsel for 7th respondent also argued in similar lines. His contention is that by virtue of the judgment of this Court in A.S.No.2437/2000 and consequent final decree proceedings, the 7th respondent got his ½ share as vested in his deceased mother Satyavathi. Unless the petitioner succeeds in proving the genuinity of the Will, he cannot lay any claim over the share of the Satyavathi vested in the 7th respondent. Therefore, it is preposterous on the part of the petitioner to seek or to set aside the PPBs and TDs issued in favour of the 7th respondent. He thus prayed to dismiss the writ petition. 10. The points for consideration are: (1) Whether the judgment in A.S.No.2437/2000 created any right in favour of the writ petitioner for the ½ share of Late Satyavathi by virtue of the Will dated 19.10.1994 propounded by the writ petitioner ? (2) If point No.1 is held in negative, whether the writ petition is maintainable ? (3) To what relief ? 11. (2) If point No.1 is held in negative, whether the writ petition is maintainable ? (3) To what relief ? 11. POINT Nos.1, 2 & 3: the nub of the issue is that the writ petitioner claims the ½ share of Satyavathi on the strength of registered Will dated 19.10.1994 in exclusion of her adopted son-the 7th respondent. In fact, he filed O.S.No.202/2015 against the respondents 5 to 7 herein on the file of II Additional District Judge, Guntur seeking partition of plaint schedule properties and allotment of ¾ share therein. His claim is that since Satyavathi begot a son who died in his infancy, he should be treated as Aurasa son of late Venkaiah and in the notional partition, himself and Venkaiah would get ½ share each and his ½ share would vest in his mother Satyavathi and remaining ½ share of Venkaiah on division between respondents 5 and 6 on one hand and Satyavathi on the other, each would get ¼ share and respondents 5 and 6 would get remaining ¼ share and in that manner Satyavathi’s share shall be ¾ (½ + ¼ ) and by virtue of the Will, he is entitled to ¾ share. Be that as it may, at this juncture, it is germane to peruse the findings of this Court in A.S.No.2437/2000 relating to the shares entitled to by the respondents 5 and 6 and Satyavathi, the rights of the adoptive son, and also the validity of the Will propounded by the writ petitioner. 12. Regarding the adoption of the 7th respondent this Court has observed thus: “The aforesaid judgment was rendered by the Supreme Court with regard to the identical facts. In the instant case also, the specific plea of the third defendant is that though he was aged more than 15 years, he can be validly taken in adoption and he adduced evidence to that effect before the trial Court. Therefore, in the instant case, the third defendant could be able to establish by convincing evidence that he was validly adopted by the first defendant under Ex.B-3 adoption deed dated 15.10.1979. Therefore, the finding of the learned trial Court that the third defendant is the adopted son of the first defendant is upheld in the present appeal.” Thus, this Court upheld the adoption of the 7th respondent by late Satyavathi. 13. Therefore, the finding of the learned trial Court that the third defendant is the adopted son of the first defendant is upheld in the present appeal.” Thus, this Court upheld the adoption of the 7th respondent by late Satyavathi. 13. Regarding the respective shares of the respondents 5 and 6 this Court gave the following finding: “The final question therefore would be as to the shares for which the respective parties are entitled to. In this appeal, the finding of the trial Court that the first defendant is the legally wedded wife of Venkaiah is affirmed. Admittedly, Venkaiah died on 25.09.1978 i.e., subsequent to coming into force of Hindu Marriage Act, 1956. The first defendant, plaintiff as well as second defendant are Class-I heirs under Section 8 of the Hindu marriage Act, 1956. They are therefore as per Section 8 are entitled to equal shares in the properties of Late Venkaiah. However, the plaintiff in the suit claimed 1/4th share. In her notice, she admitted that the first defendant has half share in the property, she has 1/4th share and the second defendant has 1/4th share in the property. Consequently the first defendant is entitled to ½ share, the plaintiff is entitled to 1/4th share and the second defendant is entitled to 1/4th share in the property. Thus, the finding of the trial Court relating to allotment of shares to the parties to the suit is also affirmed. In that view, Satyavathi would get ½ share and respondents 5 and 6 herein would get ½ share and this judgment has not been challenged and thus confirmed. Therefore, in O.S.No.202/2015 the petitioner and the 7th respondent have to fight out for the ½ share of Satyavathi only. 14. As can be seen, this Court left it to the discretion of the writ petitioner to establish the validity of the Will in a separate suit. Admittedly in O.S.No.202/2015 on the file of II Additional District Judge, Guntur filed by the writ petitioner seeking partition of the suit schedule properties on the strength of the said Will said to have been executed by Satyavathi, the said issue will be decided. Therefore, it is obvious that this Court has not created any present right in writ petitioner by virtue of the Will. 15. Therefore, it is obvious that this Court has not created any present right in writ petitioner by virtue of the Will. 15. In the light of the above findings, as rightly argued by Sri Gurram Ramachandra Rao the main tussle is between the writ petitioner and the 7th respondent only in respect the ½ share of Satyavathi. While so, the writ petitioner has challenged neither the judgment of this Court in A.S.No.2437/2000 nor the consequential final decree proceedings. The order in final decree petition in I.A.No.970/2002 in O.S.No.226/1987, a copy of which is filed along with the counter by the respondents 5 and 6 would show that when the notice was served on the present writ petitioner/4th respondent in final decree petition, his counsel endorsed as “Seen and opposed. Nandipati Sankara Prasad is no longer party to the case as the Hon’ble High Court did not recognize him as LR of Ch. Satyavathi”. Thus except making such endorsement, the writ petitioner did not participate in the final decree proceedings seriously and contest the same. Other parties reported no objection and accordingly final decree was drafted and consequently respondents 5 to 7 got divided their respective shares and obtained PPBs and TDs on the strength of the final decree proceedings. So far as O.S.No.202/2015 filed by the petitioner is concerned, admittedly the same is pending and no interim order like nonalienation of suit schedule property or non-mutation of the revenue records in favour of the 7th respondent etc., seems to be passed by the trial Court and same is also not brought to the notice of this Court. In that view, the mutation in favour of the 7th respondent regarding the properties fell to the share of Satyavathi and consequential issuance of PPBs and TDs in his favour cannot be found fault with. Therefore, the petitioner has to work out his remedy in O.S.No.202/2015 only. 16. I find no irregularity or illegality in the order of the 4th respondent in issuing PPBs and TDs in respect of the plaint schedule property in favour of the 7th respondent. This writ petition is bereft of merits and accordingly the writ petition is dismissed. No costs. As a sequel, interlocutory applications pending if any, shall stand closed.