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2024 DIGILAW 653 (TS)

K. Bheemsen Rao v. state of Telangana

2024-09-04

K.LAKSHMAN

body2024
ORDER : (K. Lakshman, J.) : Heard Mr. M. Murtuza Ali Faruqui, learned counsel for the petitioners, Mr. Somu Srinivasa Reddy, learned Assistant Government Pleader for Revenue appearing on behalf of respondent Nos.1 to 4 and Mr. Raja Shekar Reddy Vanjari, learned counsel for respondent No.5. 2. This writ petition is filed by the petitioners seeking writ of mandamus declaring the certificate issued by respondent No.3 in File No.B/370/2018, dated 30.01.2024 and the proceedings No.D/388/2023, dated 22.02.2024 of respondent No.2 as illegal. 3. CASE OF THE PETITIONERS: i) The petitioners herein are the absolute owners and possessors of the land admeasuring Acs.1.08 guntas in Survey No.2 and admeasuring Acs.2.29 guntas in Survey No.3, situated at Kyathanpally Village of Damargidda Mandal, Narayanpet District, apart from the land in various other survey numbers after the demise of their father. It is their ancestral property. Originally, their forefathers and thereafter their father used to cultivate the said lands. They never let any part of the land to be cultivated by any other person either on contract, lease or hire etc. The revenue records pertaining to the years 1954 to 2017 disclose their names as pattadars and cultivators of the aforesaid lands. Pattadar Passbooks and title deeds were also issued in their favour. In fact, their family religious Deity is located in between the aforesaid survey numbers and they are offering prayers frequently. ii) The petitioners have surrendered substantial area of land under the Telangana Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short ‘Ceiling Act’) and the remaining is only the permitted holding as per the Ceiling Act. The aforesaid two survey numbers are part of two standard holdings which they retained. iii) After introduction of Dharani Portal, land in some of the survey numbers including the aforesaid Survey Nos.2 and 3 is missing in Dharani Portal. Therefore, they have submitted a representation dated 09.07.2018 to respondent Nos.2 to 4 and the same was not considered by them. iv) While so, respondent No.2 had issued proceedings in File No.D/388/2023, dated 22.02.2024 granting pattadar passbook in favour of respondent No.5 without any basis and without giving any notice to them in respect of the aforesaid survey numbers. In fact, respondent No.5 has no right, title or interest over the said property and she was never in possession of the same. In fact, respondent No.5 has no right, title or interest over the said property and she was never in possession of the same. The tenancy certificate said to have issued under Section - 38E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short ‘Tenancy Act’) in favour of respondent No.5 is forged and fabricated. In fact, the grandfather of respondent No.5, late Bugappa S/o Papanna was already assigned the land of the petitioners in Survey Nos.92 and 93 under the Tenancy Act and they are in possession and enjoyment of those lands since 1976. Therefore, the question of granting pattadar passbook in respect of Survey Nos.2 and 3 does not arise. v) The petitioners also made another representation dated 04.03.2024 to respondent No.2 to protect their possession and enjoyment over the land in Survey Nos.2 and 3. Despite receiving and acknowledging the same, they did not act upon the same. Aggrieved by the said inaction of respondent No.2, the petitioners filed the present writ petition. 4. CONTENTION OF RESPONDENT No.5: i) On the other hand, respondent No.5 filed counter denying the claim of the petitioners by contending as follows: ii) She is a PT over the land in Survey No.2 admeasuring Acs.1.08 guntas and Survey No.3 admeasuring Acs.2.29 guntas, situated Kyathanpalli Village of Damargidda Mandal and she has been in possession of the same. Originally, her grandfather, Buggappa, was the original protected tenant (hereinafter referred to as PT) over the said land and he was issued Tenancy Certificate under the Tenancy Act. Her grandfather had another brother i.e., Ammanna. Both of them cultivated the subject land and other lands. The brother of her grandfather died issueless. Therefore, 38-E Certificate was issued to her grandfather in respect of the subject land and other lands. Her grandfather got only one son, by name Laxmanna. She is the sole daughter to her father, who died due to ill-health. Therefore, her grandfather brought her husband illatom son-in-law. Her grandfather performed her marriage. iii) The petitioners tried to get some orders from Civil Court under the guise of possession, but they could not succeed. As per Section - 90 of the P.T. Act, Civil Courts are barred to entertain the matter in respect of PT. Respondent No.4 having considered all the documents and conducting enquiry only submitted his report vide Ref.No.A/389/2018, dated 10.07.2020 to respondent No.3. As per Section - 90 of the P.T. Act, Civil Courts are barred to entertain the matter in respect of PT. Respondent No.4 having considered all the documents and conducting enquiry only submitted his report vide Ref.No.A/389/2018, dated 10.07.2020 to respondent No.3. Basing on the said report of respondent Nos.3 and 4, respondent No.2, vide proceedings dated 22.02.2024 ordered to issue pattadar passbook in respect of the subject lands. Thus, there is no error in it. 5. CONTENTION OF RESPONDENT Nos.1 to 4: i) Respondent No.2 filed counter stating that respondent No.5 has applied under issue of PPB-Court Case in Dharani Module vide Application Nos.Rc.2400000, RC2400000862, RC2400000870, RC2400000872, RC2400000876 and RC2400000877 on 14.02.2024 for issue of pattadar passbook by enclosing copies of proceedings of ownership issued by respondent No.3 vide No.B/370/2018, dated 30.01.2024, Tenant Register and Certificate issued under Sections - 35 and 37 of the Hyderabad Tenancy and Agriculture Lands Act, 1950. ii) After verifying the said application and having found that respondent No.3 has examined the matter and after obtaining report from respondent No.4, issued the proceedings. In the report No.A/389/2018, dated 10.07.2020 submitted by respondent No.4, it is stated that Mangali Buggappa was the original PT over the subject land and he was issued Tenancy Certificate. Respondent No.3 in his proceedings stated that respondent No.5 is the granddaughter of original PT and her sons are in possession and enjoyment of the subject lands. Taking into consideration of the ownership certificate granted by respondent No.3, the application of respondent No.5 was considered and accordingly ordered to issue pattadar passbook in her favour. Thus, the contention of the petitioners that the ancestors of respondent No.5 were never in possession and cultivation of the subject land is far from truth. 6. Taking into consideration of the ownership certificate granted by respondent No.3, the application of respondent No.5 was considered and accordingly ordered to issue pattadar passbook in her favour. Thus, the contention of the petitioners that the ancestors of respondent No.5 were never in possession and cultivation of the subject land is far from truth. 6. ANALYSIS AND FINDNG OF THE COURT: i) As discussed above, the petitioners are claiming that petitioner No.1 is the absolute owner and possessor of the land admeasuring Ac.0.30 guntas in Survey No.2 and Ac.0.43 guntas in Survey No.3 making a total extent of Acs.1.33 guntas; petitioner No.2 is the absolute owner and possessor of the land admeasuring Ac.0.30 guntas in Survey No.2/“ and Ac.0.43 guntas in Survey No.3/ , making a total extent of Acs.1.33 guntas and petitioner No.3 is the absolute owner and possessor of the land admeasuring Ac.0.30 guntas in Survey No.2/ and Ac.0.43 guntas in Survey No.3/ , making a total extent of Acs.1.33 guntas, situated at Kyathanpally Village, Damargidda Mandal, Narayanpet District. They are also owners the land in other survey numbers of the very same village. It is their ancestral property. In proof of the same, they have filed copies of old title deeds and also pahanis including Khasra Pahani for the year 1954-55. It is their specific contention that their fore-fathers, father of the petitioners never let any part of the land to be cultivated by any other person either on contract, lease or on hire basis. Whereas, the case of respondent No.5 is that her grandfather, late Hajam Buggappa was the original PT over the subject land and tenancy certificate was issued in his favour. Her grandfather and his brother late Ammanna used to cultivate the subject land and other lands. The said Ammanna died issueless. Therefore, tenancy certificate under Section - 38-E of the Tenancy Act was issued in favour of her grandfather in respect of the subject land. After the death of her grandfather, her father, Laxmanna being only the legal heir of her grandfather succeeded the subject property. After the death of her father, respondent No.5 being the sole daughter and legal heir succeeded the subject property. Therefore, she is the PT over the subject property. After the death of her grandfather, her father, Laxmanna being only the legal heir of her grandfather succeeded the subject property. After the death of her father, respondent No.5 being the sole daughter and legal heir succeeded the subject property. Therefore, she is the PT over the subject property. ii) It is relevant to note that respondent No.5 has filed copy of certificate issued under Sections - 35 and 37 of the Tenancy Act, wherein her grandfather name i.e., Hajam Buggappa is mentioned as PT and the name of grand-father of the petitioners, Tirmal Rao Patwadi as landlord and pattadar in respect of the subject property. Respondent No.5 has also filed copy of P.T. Register wherein her grandfather name is mentioned as PT in respect of the subject property. Even in the Khasra Pahani filed by respondent No.5 for the year 1954-55, Mr. Tirmal Rao S/o Bheemsen Rao, grandfather of the petitioners name is shown as pattadar and Mr. Hajam Buggappa, grandfather of respondent No.5 as tenant in respect of the subject property. Respondent No.5 has submitted Online Applications with respondent No.3 vide Nos.Rc.2400000, RC2400000862, RC2400000870, RC2400000872, RC2400000876 and RC2400000877 on 14.02.2024 with a request to issue ownership certificate under Section - 38-E of the Tenancy Act. Respondent No.3 in turn called for the report from respondent No.4, who in turn submitted his report dated 10.07.2020. In the said report, respondent No.4 has mentioned that previously in the following files notices under Sub-Rule 3 of Rule - 4 of the Tenancy Act were issued; (i) C/3604/1976, dated 21.12.1976 and ii) C/3552/1979, dated 18.08.1979. iii) Referring to the same, respondent No.4 in his report dated 10.07.2020 mentioned as follows: “From the above it is clear that Provisional List and in accordance with the provisions of Tenancy Act, 1590 irrespective of Kyathanpally village and that Ownership Certificate U/s 38/E might have been issued in respect of P.T. lands including the present lands in question.” iv) It is further stated that that one Mangali Buggappa, grandfather of respondent No.5 was the original PT and being the sole legal heir, respondent No.5 and her sons are in possession and self- cultivation of the subject lands. Thus, respondent No.4 submitted proposals to respondent No.3 for the purpose of issuance of ownership certificate under Section - 38-E of the Tenancy Act. Thus, respondent No.4 submitted proposals to respondent No.3 for the purpose of issuance of ownership certificate under Section - 38-E of the Tenancy Act. v) Basing on the said report of respondent No.4, respondent No.3 vide proceedings No.B/370/2018, dated 30.01.2024, issued ownership certificate in respect of the subject land in favour of respondent No.5. Form-II was also appended to the same. Thereafter, vide proceedings No.D/388/2023, dated 22.02.2024, respondent No.2 ordered for issuance of pattadar passbooks in respect of the lands admeasuring Ac.0.12 guntas in Survey No.2/1; admeasuring Ac.0.12 guntas in Survey No.2/2, admeasuring Ac.0.12 guntas in Survey No.2/4, admeasuring Ac.0.28 guntas in Survey No.3/1, admeasuring Ac.0.27 guntas in Survey No.3/2 and admeasuring Ac.0.27 guntas in Survey No.3/4, making a total extent of Acs.2.38 guntas, situated at Kyathanpally Village of Damargidda Mandal, in favour of respondent No.5. Accordingly, e-pattadar passbook-cum-title deed was issued in favour of respondent No.5 vide epattadar passbook No.T01050250061 with Khata No.125 in respect of the aforesaid properties. It is the specific contention of the petitioners that neither their forefathers, nor their father nor the petitioners let cultivated the subject property by anybody including grandfather of respondent No.5 on lease. The tenancy certificate said to have issued in favour of respondent No.5 under Section - 38-E of the Tenancy Act is forged and fabricated. The grandfather of respondent No.5 was already assigned the land of the petitioners in Survey Nos.92 and 93 of the same village under the Tenancy Act and they are in possession and enjoyment of the subject land since 1976. Therefore, the question of issuance of ownership certificate in favour of respondent No.5 under Section - 38-E of the Tenancy Act does not arise. vi) It is apt to note that respondent No.2 has filed counter contending that respondent No.5 has submitted six Online Applications vide I.D. Nos.Rc.2400000, RC2400000862, RC2400000870, RC2400000872, RC2400000876 and RC2400000877 on 14.02.2024 with a request to issue e-pattadar passbook by duly enclosing copies of ownership proceedings, dated 30.01.2024 issued by respondent No.3, Tenancy Register and Certificate issued under Sections - 35 and 37 of the Hyderabad Tenancy and Agriculture Lands Act, 1950, and also the report dated 10.07.2020 of respondent No.4. Though respondent Nos.3 and 4 in their report and certificate specifically stated that respondent No.5 being the sole legal heir of Hajam Buggappa alias Mangali Buggappa, the PT and she is in possession of the subject property. Though respondent Nos.3 and 4 in their report and certificate specifically stated that respondent No.5 being the sole legal heir of Hajam Buggappa alias Mangali Buggappa, the PT and she is in possession of the subject property. The proceedings for issuance of tenancy certificate dated 30.01.2024 were not under challenge. It attained finality. Considering the said aspects, vide proceedings dated 22.02.2024, respondent No.2 ordered to issue epattadar passbook in favour of respondent No.5 in respect of the aforesaid property. vii) It is also apt to note that though the petitioners contended that respondent No.5 obtained Ownership Certificate under Section - 38-E of the Tenancy Act, the same was forged and fabricated by her, but they have not lodged any complaint with police with regard to the alleged forgery. The petitioners have also filed provisional list of PTs in Form-I of Rule - 4 (1) of Tenancy Rules, wherein the name of Bugappa and respondent No.5 being his granddaughter is mentioned as PT in respect of the land in Survey Nos.92 and 93 admeasuring Acs.2.08 guntas and Acs.1.30 guntas, respectively. Landholder name is mentioned as ‘Mr. Kishan Rao S/o Thirmal Rao’. Referring to the same, learned counsel for the petitioners would contend that respondent No.5’s grandfather was already assigned with land in Survey Nos.92 and 93 under the Tenancy Act and they are in possession of the said property. Neither grandfather of respondent No.5, nor respondent No.5 is the tenant of the land in Survey Nos.2 and 3 of Kyathanpally Village. Whereas, the Certificate issued under Sections - 35 and 37 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 and Protected Tenancy Register would disclose the name of grandfather of respondent No.5 i.e., Hajam Buggappa is mentioned as “PT’ in respect of the subject property. Even in the Khasra Pahani, the same is mentioned. viii) As discussed above, this Court cannot consider as to whether the ownership certificate obtained by respondent No.5 under Section - 38-E of the Tenancy Act is forged and fabricated as alleged by the petitioners under Article - 226 of the Constitution of India. If the said certificate is forged and fabricated one, it is for the petitioners to take steps in accordance with law. If the said certificate is forged and fabricated one, it is for the petitioners to take steps in accordance with law. ix) Section - 90 of the Tenancy Act deals with ‘appeals and revisions’, and as per sub-section (1) of Section - 90, from every order other than an interim order passed by the Tahsildar or the Deputy Collector or the Tribunal under this Act, an appeal shall lie to the Collector and the orders of the Collector on such appeal shall be final. x) Section - 93 of the Tenancy Act deals with ‘limitations’, and it says that every appeal and every application for revision under this Act shall be filed within sixty days from the date of the order against which the appeal or application is filed and the provisions of Section - 5 and 12 to 24 of the Limitation Act, 1963, shall apply for the purpose of extension and computation of the said period. xi) During the course of hearing, learned counsel for the petitioners submitted copy of the appeal filed by the petitioners under Section - 90 of the Tenancy Act before the Additional Collector, Narayanpet challenging the ownership certificate dated 30.01.2024 in File No.B/370/2018. However, learned Assistant Government Pleader for Revenue, on instructions, would submit that the Additional Collector did not receive the said appeal. Perusal of the copy of the said appeal filed by learned counsel for the petitioners would also reveal that it was filed before the Additional Collector, Narayanpet. They have also filed a petition seeking stay of execution of ownership issued by respondent No.3 and the said application is pending. xii) As discussed above, there are certain disputed questions of fact in the present case i.e., according to the petitioners, grandfather of respondent No.5, Mr. Hajam Buggappa was already assigned the land of the petitioners in Survey Nos.92 and 93 under the Tenancy Act and they are in possession and enjoyment of the same since 1976. In proof of the same, the petitioners have filed the provisional list of PT in Form-I under Rule - 4 (1) of the Tenancy Rules, whereas, according to respondent No.5, her grandfather, Hajam Buggappa was the PT in respect of the subject lands in Survey Nos.2 and 3. It is a disputed question of fact, which the Additional Collector being Appellate Authority has to consider and decide. It is a disputed question of fact, which the Additional Collector being Appellate Authority has to consider and decide. xiii) According to the petitioners, ownership certificate obtained by respondent No.5 under Section - 38-E of the Tenancy Act is forged and fabricated. This Court cannot consider the said aspect under Article - 226 of the Constitution of India and it is for the Additional Collector being Appellate Authority has to consider the same. xiv) Section - 40 of the Tenancy Act deals with ‘rights of PT heritable’. xv) The petitioners further contended that while submitting report dated 10.07.2020 and while issuing ownership certificate dated 30.01.2024 and while issuing proceedings dated 22.02.2024 ordering issuance of e-pattadar passbook, respondent Nos.4, 3 and 1, respectively, did not put the petitioners on notice and afford them an opportunity. Even the said aspect the Additional Collector being Appellate Authority under Section - 90 of the Tenancy Act has to consider. xvi) The petitioners filed a suit vide O.S. No.59 of 2018 against respondent No.5 seeking perpetual injunction, but respondent No.5 contends that in view of bar under Section - 99 (2) of the Tenancy Act, the said suit is not maintainable. In the light of the same, it is relevant to note that Section - 99 (2) of the Tenancy Act says that no order of the Tahsildar, Tribunal or Collector or of the Board of Revenue or Government made under this Act, shall be questioned in any Civil or Criminal Court. As discussed above, in the said suit, there is no challenge to the ownership certificate dated 30.01.2024 issued by respondent No.3. The petitioners filed the aforesaid suit against respondent No.5 seeking perpetual injunction. xvii) Section - 38-E of the Tenancy Act is relevant and the same is extracted as under: “38-E. (2) A certificate in the prescribed form declaring him to be owner shall be issued by the Tribunal after holding such enquiry as may be prescribed, to every such protected tenant and notice of such issue shall simultaneously be issued to the landholder. Such certificate shall be conclusive evidence of the protected tenant having become the owner of the land with effect from the date of the certificate as against the landholder and all other persons having any interest therein: Provided that where the land, the ownership of which has been transferred to the protected tenant under subsection (1), is in the occupation of a person other than the protected tenant or holder of the certificate issued under this sub-section, it shall be lawful for the Tahsildar to restore the possession of the said land to the protected tenant or holder of the certificate, after giving notice of eviction to the occupant thereof, in the prescribed manner.” Therefore, respondent No.3 being the Tribunal shall follow the said procedure while issuing ownership certificate under Section - 38-E of the Tenancy Act. xviii) As discussed above, in the revenue record including Khasra Pahani and protected tenancy certificate filed by the petitioners and respondent No.5, the grandfather of petitioners, Mr. Thirumal Rao name is mentioned as ‘landlord’. Being the legal heirs of the said Thirumal Rao, the petitioners are also entitled for notice and opportunity in the said enquiry. They have placed reliance on the judgment in Chinnam Pandurangam v. The Mandal Revenue Officer, Serilingampally Mandal : (2007) 07 AP CK 0025, but it is under ROR Act, 1971 and, therefore, the facts in the said decision are different to the facts of the present case. Therefore, the Additional Collector has to consider the said aspects while deciding the appeal filed by the petitioners under Section - 90 of the Tenancy Act. xix) As stated above, in the report, dated 10.07.2020, respondent No.4 stated that the provisional list and the provisions of the Tenancy Act, 1950 irrespective of Kyathanpally Village, ownership certificate issued under Section - 38-E of the Tenancy Act might have been issued in respect of P.T. lands including the present lands in question. Therefore, respondent No.4 is not sure of issuance of 38-E Certificate. Therefore, the Additional Collector, Narayanpet being the Appellate Authority shall consider the said aspects. xx) In the report, dated 10.07.2020, respondent No.4 stated that respondent No.5 and her sons are in possession of the property and they are cultivating the same. Respondent No.5 has also filed photographs to show that she is cultivating the subject property and that there is standing crop. xx) In the report, dated 10.07.2020, respondent No.4 stated that respondent No.5 and her sons are in possession of the property and they are cultivating the same. Respondent No.5 has also filed photographs to show that she is cultivating the subject property and that there is standing crop. Latest pattadar passbook and title deed were also issued in her favour in respect of the subject lands. In the light of the same, the parties shall maintain status quo with regard to the subject property till the Additional Collector, Narayanpet, decides the appeal filed by the petitioners under Section - 90 of the Tenancy Act. 7. CONCLUSION: i) As discussed above, to prove that the petitioners are the absolute owners and possessors of the land in Survey Nos.2 and 3, they have filed copies of old title deeds. Therefore, the Additional Collector, Narayanpet shall dispose of the appeal filed by the petitioners under Section - 90 of the Tenancy Act challenging the orders of respondent No.3, dated 30.01.2024 in File No.B/370/2018 and pass appropriate orders strictly in accordance with law by putting the petitioners and respondent No.5 on notice and affording them an opportunity. He shall pass a reasoned order and communicate copy of the same to the parties. He shall complete the entire exercise within a period of three (03) months from the date of receipt of copy of this order. ii) With the aforesaid observations and directions, this writ petition is disposed of. In the circumstances of the case, there shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in the writ petition shall stand closed.