Telangana High Court
Sri. Rajesh Tirumalaraju vs The State Of Telangana on 5 June, 2023
Author: K. Lakshman
Bench: K.Lakshman
HON'BLE SRI JUSTICE K.LAKSHMAN
WRIT PETITION No.15642 of 2021
ORDER:
Heard Sri P.James, learned counsel for the petitioner, learned Assistant Government Pleader for Revenue appearing for respondent Nos.1 to 5, Sri C.Hanumantha Rao, learned Counsel representing Sri V.Venumadhav, learned counsel appearing for respondent No.6 and Sri C.B.Ram Mohan Reddy, learned Senior Counsel representing Sri Siddharth C.B, learned counsel appearing for respondent No.7.
2. This Writ Petition is filed to set aside the impugned order passed in case No.D1/39/2020 dated 15.06.2021 by the respondent No.2, Special Tribunal, Mahabubnagar District as illegal and arbitrary.
Facts:
3. Originally Sri Laxman B.Binny son of late Balaiah was the absolute owner and possessor of land admeasuring Acs.5-20 gts in Sy.No.355 and Acs.3-20 gts in Sy.No.356, total land admeasuring Acs.9-00 gts, situated at Mothighanpur Village, 2 Balanagar Mandal, Mahbubnagar District. He has acquired the said property under a registered sale deed bearing document No.1661 of 2007 dated 21.02.2007 executed by Sri G.Lingam.
4. Sri Laxman B.Binny had executed a registered sale deed bearing document No.59 of 2012 dated 04.01.2012 in favour of respondent No.6 who inturn had executed a registered Deed of Mortgage by Conditional Sale dated 03.07.2013 bearing document No.7690 of 2013 in favour of the petitioner. In the said document, it is specifically agreed and declared that if the vendor shall at any time hereafter repay to the purchaser, the said sum of Rs.10,00,000/- before 14th day of August, 2013, the grant and transfer of the said property as herein before provided shall become void and in that event the purchaser shall retransfer the said property to the vendor or his heirs, executors, administrators or assigns by executing a document of re-sale.
5. It is further agreed that, if the vendor or his heirs, executors, administrators or assign shall fail to repay the said amount of Rs.10,00,000/- within the said period, then the grant and transfer of the said property to the purchaser hereby made 3 shall become absolute in favour of the purchaser his heirs, executors, administrators or assigns. It is also mentioned that the possession of the subject property was issued in favour of the petitioner and petitioner being purchaser shall quietly possess and enjoy the said property and receive the rents, income and profits thereof without any lawful interruption or disturbance whatsoever by the respondent No.6.
6. The respondent No.6 failed to pay the said amount of Rs.10,00,000/- on or before 14.08.2013. Therefore, the said sale become absolute in terms of Section 58(c) of Transfer of Property Act, 1882 and therefore the petitioner became absolute owner and possessor of the subject property. His name was mutated in the revenue records and respondent No.5 has issued proceedings No.B/1541/2017 of December, 2017. His name was also entered in the 1-B Registrar. He is in possession of the subject property.
7. Respondent No.6 filed an appeal under Section 5(5) of the Telangana State Rights in Land and Pattadar Pass Book Act, 1971 herein after referred to ROR Act 1971 for brevity before respondent No.4 challenging the mutation proceedings 4 issued by respondent No.5 in favour of the petitioner herein. Vide order dated 19.10.2019, respondent No.4 allowed the said appeal and set aside the mutation proceedings issued in favour of the petitioner and it is ordered to restore the original entries in the name of respondent No.6. Feeling aggrieved by the said order of respondent No.4, petitioner herein had filed a revision under Section 9 of the ROR Act, 1971 before the Special Tribunal, Mahabubnagar.
8. After promulgation of Telangana Rights in Land and Pattadar Pass Books Act, 2020, Special Tribunals were constituted in terms of Section 16 of the Act and G.O.Ms.No.4 dated 12.01.2021. All the pending revisions shall stand transferred to Special Tribunal in terms of Section 16(1) of the Act. The said revision was transferred to the file of respondent No.2 in terms of Section 16(1) of the Act. Vide order dated 15.06.2021, respondent No.2 dismissed the revision filed by the petitioner confirming the order dated 19.10.2019 passed by respondent No.4. Challenging the said order, petitioner herein had filed the present Writ Petition.
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9. Whereas, respondent No.6 is contending that he has repaid the aforesaid amount of Rs.10,00,000/- to the petitioner herein on 05.08.2013 itself i.e., much before 14.08.2013. Having received the said amount, petitioner herein had issued a receipt dated 05.08.2013 in his favour. Therefore, the said Mortgage of Conditional Sale became void and it is non-acceptable document. Despite specific requests, petitioner failed to return original documents to the respondent No.6. He has obtained mutation proceedings from respondent No.5 illegally by misrepresentation of facts and therefore, the said mutation proceedings were set aside by respondent No.4 vide order dated 19.10.2019 and the said orders were confirmed by the respondent No.2 vide impugned order dated 15.06.2021. There are serious disputed questions of fact, which recording authority under ROR Act cannot consider. Petitioner herein had already filed a suit vide O.S.No.100 of 2019 seeking declaration of title, cancellation of two registered Aggreements of Sale cum General Power of Attorney with possession and also permanent injunction and the same is pending. He has already executed a registered sale deed bearing document No.67 of 2020 dated 23.11.2020 in favour of 6 Smt. P.Shyamala, w/o P.Dhanveer Yadav and possession was already delivered in her favour and her name was mutated in the revenue records. She has also obtained latest Pattadar passbook and title deed. Therefore, there is no error in the impugned order passed by respondent No.2. With the said submissions, respondent No.6 sought to dismiss the present Writ Petition.
10. Whereas, respondent No.7 is claiming that she has purchased the aforesaid property under a registered sale deed bearing document No.67 of 2020 dated 23.11.2020 from the respondent No.6, she was put in possession. Her name was mutated in the revenue records and she has obtained latest Pattadar passbook and title deed. The said fact was known to the petitioner, even then, he has not impleaded the respondent No.7 in the said revision and during the pendency of the proceedings before the respondent No.2. Therefore, she is necessary party. According to her, the registered Mortgage Deed by Conditional Sale is void, non-acceptable and non-enforceable. In view of the fact that, respondent No.6 has already repaid the aforesaid amount of Rs.10,00,000/- to the petitioner on 05.08.2013 itself. 7 With the said submissions, she sought to dismiss the present Writ Petition.
11. Whereas, learned Assistant Government Pleader for Revenue would submit that respondent Nos.2 and 4 have considered the entire aspects and set aside the mutation proceedings issued in favour of the petitioner by respondent No.5 and the said order passed by respondent No.4 dated 19.10.2019 was confirmed by respondent No.2. There is no irregularity in the said orders.
12. The aforesaid facts would reveal that originally Sri Laxman B.Binny was the absolute owner and possessor of the subject property and he has purchased the aforesaid property under a registered sale deed bearing document No.1661 of 2007 dated 21.02.2007. He has sold the subject property in favour of the respondent No.6 by way of executing a registered sale deed bearing document No.59 of 2012 dated 04.01.2012. The name of respondent No.6 was mutated in the revenue records and pattadar passbook and title deed was also issued in his favour. 8
13. According to the petitioner, respondent No.6 and petitioner were known to each other and they worked together from 2006 to 2013. With the said acquaintance, respondent No.6 requested petitioner to advance a sum of Rs.10,00,000/- by offering to sell the schedule property. As on the said date, the cost of the land was only Rs.7,20,000/-. Even then, he has advanced the said amount of Rs.10,00,000/- to the respondent No.6 who inturn executed the aforesaid Deed of Mortgage by Conditional Sale vide registered document No.7690 of 2013 dated 07.07.2013.
14. It is also relevant to note that the said fact of acquittence with the petitioner, execution of the aforesaid Deed of Mortgage by Conditional Sale is admitted by respondent No.6 in the counter. In the said sale deed, it is agreed that respondent No.6 shall repay the said amount on or before 14.08.2013 and according to the petitioner respondent No.6 failed to repay the said amount on or before 14.08.2013 and thereafter. Whereas, according to respondent No.6, he has repaid the said amount on 05.08.2013 to the petitioner herein and on receipt of the said 9 amount, petitioner herein had issued a receipt dated 05.08.2013. Therefore, according to respondent No.6, the said sale deed become void and it is non-acceptable and non-enforceble document. Whereas, according to the petitioner, the respondent No.6 has forged the said receipt and created it. Therefore, he has filed a complaint under section 200 Cr.P.C before the learned Magistrate, who inturn referred the same to P.S, Balanagar, Mahabubnagar District who inturn registered a case in crime No.44 of 2021 dated 05.04.2021 against respondent No.6 for the offences punishable under Sections 406, 418, 423, 427, 468 and 471 of IPC. On completion of the investigation, the investigating officer has filed charge sheet and the same was taken on the file vide C.C.No.417 of 2021 and it is pending for trial.
15. It is also relevant to note that respondent No.6 had filed a petition under Section 482 of Cr.P.C vide Criminal Petition No.4867 of 2021 and the same was dismissed as infructuous by this Court vide order dated 20.04.2022, on considering the said submissions made by learned Public Prosecutor that Investigation was already completed and final 10 report was filed and the same was taken on file vide C.C.No.417 of 2021.
16. It is also relevant to note that Sri Laxman B.Binny also lodged a complaint against respondent No.6 and P.S, Balanagar has registered a case in Crime No.85 of 2021 against respondent No.6 and respondent No.6 had filed a petition under Section 482 of Cr.P.C vide Criminal Petition No.4866 of 2021 seeking to quash the proceedings in the said crime. In the said crime also the Investigating Officer on completion of the investigation laid charge sheet against respondent No.6 and the same was taken on the file vide C.C.No.418 of 2021. The same is pending. The said Criminal Petition was dismissed as withdrawn vide order dated 03.02.2022.
17. Perusal of record would reveal that respondent No.6 had executed two registered Agreements of Sale cum General Power of Attorney with possession bearing document Nos.22205 of 2018 and 22206 of 2018, both dated 05.12.2018 in favour of Smt. T.Shobarani w/o T.Prakash and Sri Kalvakuntla Ravinder Rao s/o K.Narsing Rao. In the said registered documents, there is 11 mention about an agreement said to have been entered by respondent No.6 with them on 24.12.2012. The said two registered documents were not cancelled.
18. Petitioner herein had also filed a suit vide O.S.No.100 of 2019 against respondent No.6, Smt. T.Shobarani and Sri Kalvakuntla Ravinder Rao for cancellation of two registered Agreements of Sale cum General Power of Attorney with possession and for Permanent Injunction. Thereafter, petitioner herein had sought amendment of the plaint to amend the suit for declaration, cancellation of the registered documents and permanent injunction. Learned Senior Civil Judge, Mahabubnagar has also granted interim injunction in favour of the petitioner against respondent No.6, Smt. T.Shobarani and Sri Kalvakuntla Ravinder Rao vide order dated 22.04.2019. According to learned counsel for the petitioner, the said interim injunction is subsisting and the said suit is pending.
19. It is also relevant to note that according to respondent No.6, petitioner herein had executed an agreement of sale dated 15.02.2021 in favour of Sri Laxman B.Binny in respect of the 12 schedule property. Petitioner suppressed the said fact in the present Writ Petition. Therefore, according to respondent No.6, petitioner approached this Court with unclean hands. However, petitioner disputes the execution of the said agreement of sale dated 15.02.2021 in favour of Sri Laxman B.Binny. The aforesaid facts would reveal that according to the petitioner, respondent No.6 failed to pay the aforesaid amount of Rs.10,00,000/- advanced by him and therefore the conditional sale became operative in terms of Section 58(c) of the Transfer of Property Act, 1882.
20. In view of the same, Section 58(c) of the Transfer of Property Act, 1882 which deals with Mortgage by Conditional Sale and the same is relevant, it is extracted below:-
"Where, the mortgagor ostensibly sells the mortgaged property, on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on 13 condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by conditional sale."
21. Therefore, according to the petitioner, respondent No.6 failed to pay the said amount on or before 14.08.2013. The said sale become absolute and therefore, petitioner herein is the absolute owner and possessor of the subject property, on the strength of the aforesaid registered Mortgage Deed by Conditional Sale bearing document No.7690 of 2013 dated 03.07.2013.
22. Petitioner specifically contended that respondent No.6 orally informed that he is not in a position to pay the said amount and petitioner can enjoy the same. According to him, respondent No.6 has also handed over the original link documents to him and the said original documents to which respondent No.6 has purchased the subject property from Laxman B.Binny is with 14 him. Considering the said facts, respondent No.5 has issued mutation proceedings.
23. Respondent No.6 has preferred an appeal under Section 5(5) of the ROR Act, 1971 before respondent No.4 challenging the mutation proceedings issued in favour of the petitioner by the respondent No.5. Vide order dated 19.10.2019, respondent No.4 set aside the mutation proceedings and ordered to restore the original entries in the name of respondent No.6 in the revenue records. Perusal of the said order dated 19.10.2019 would reveal that the said case was called for hearing on 13.09.2019, on the said date both the parties are absent. Even then, respondent No.4 mentioned that "heard the arguments by both the parties." In the said order dated 19.10.2019, respondent No.4 mentioned that respondent No.5 has implemented the mortgage document executed by respondent No.6 in favour of the petitioner. The Mortgage document cannot confirm any rights to the vendor to declare the title and as such the Mortgage documents are not liable to be implemented in ROR Act and records as per the existing rules under ROR Act. Whereas, 15 respondent No.5 has implemented the mortgage document which has no legal sancity.
24. Infact, respondent No.4 has passed the said order without hearing the petitioner as well as respondent No.6 and the said fact is evident from the order itself.
25. Respondent No.4 failed to consider Section 4 of the ROR Act, 1971 which says that "any person acquiring by succession, survivorship, inheritance, partition, Government patta, decree of a Court or otherwise any right as owner, pattadar of a land and any person acquiring any right as occupant of a land by any other method shall intimate in writing his acquisition of such right to the Tahsildar within thirty days from the date of such acquisition. As per Explanation I:- to the said provision, the right mentioned above shall include a mortgage without possession and a right determined by Civil Court. As per Explanation II:- A person in whose favour a mortgage is dischared or extinguished, or a lease is determined, acquires a right within the meaning of this Section.
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26. As discussed supra, the petitioner herein is claiming right over the subject property on the strength of aforesaid Deed of Mortgage by Conditional Sale bearing document No.7690 of 2013 dated 03.07.2013. According to the petitioner, respondent No.6 failed to repay the said amount of Rs.10,00,000/- advanced by him. Therefore, the said sale becomes absolute in terms of Section 58(c) of the Transfer of Property Act, 1882. The said facts were not considered by respondent No.4 in his order dated 19.10.2019. Therefore, the said order is not on consideration of actual facts and law.
27. The petitioner herein had filed a revision under Section 9 of ROR Act, 1971 and the same was transferred to the respondent No.2 which inturn, vide order dated 15.06.2021 dismissed the revision petition. In the said order dated 15.06.2021, respondent No.2 held that the Deed of Mortgage by Conditional Sale executed by respondent No.6 in favour of the petitioner is not a sale and cannot be implemented in the revenue records. In the event of failure to repay the amount by the respondent No.6, petitioner ought to have filed a specific 17 performance suit against the respondent No.6 herein in respect of the suit lands. Respondent No.5 hastely mutated the name of the petitioner based on the Mortgage Deed which has no value. As discussed supra, respondent No.2 failed to consider the aforesaid section 4 of the ROR Act, 1971 and Section 58(c) of the Transfer of Property Act, 1882. Without considering the said facts, respondent No.2 confirmed the order dated 19.10.2019 of respondent No.4. Therefore, even the order dated 15.06.2021 of respondent No.2 is not on consiseration of actual facts and law. Therefore, the said order is liable to be set aside and accordingly it is set aside. In view of the aforeaid discussion, the order dated 19.10.2019 of respondent No.4 is also set aside.
28. Respondent No.7 is claiming that she has purchased the subject property from respondent No.6 under a registered sale deed bearing document No.67 of 2020 dated 21.11.2020. She is also claiming that her name was mutated in the revenue records and she has filed copies of latest pattadar passbook and title deed. It is also relevant to note that petitioner herein had filed aforesaid suit vide O.S.No.100 of 2019 dated 22.04.2019 against 18 respondent No.6, Smt. T.Shobarani and Kalvakuntla Ravinder Rao on 20.04.2019 itself. Learned Senior Civil Judge, vide order dated 22.04.2019 has granted interim injunction. Petitioner herein had filed a petition vide I.A.No.493 of 2021 to implead Smt. Potel Shyamala as defendant No.4 to the said suit. According to lerned counsel for the petitioner, the said I.A was allowed and Smt.Potel Shyamala was impeaded as defendant No.4 to the said suit. The aforesaid facts would reveal that Smt. Potel Shyamala had purchased the subject property during the pendency of the aforesaid suit. Therefore, the said sale of Smt. Potel Shyamala is hit by doctrine of Lis Pendens in terms of Section 52 of Transfer of Property Act.
29. Having purchased the subject property/urban land, during the pendency of the said suit, Smt. P.Shyamala cannot claim that she is absolute owner and possessor of the subject property and she cannot obtain mutation proceedings, latest pattadar passbook and title deed in her favour. Mutation proceedings, latest Pattadar passbook and title deed obtained by 19 respondent No.7 is by way of misrepresentation of facts and therefore, there are not valid.
30. Respondent No.6 has executed the aforesaid two registered Agreements of Sale cum General Power of Attorney with possesion in favour of Smt. T.Shoba Rani and Sri Kalvakuntla Ravinder Rao both dated 05.12.2018. Supressing the said fact, he has executed the aforesaid registered sale deed bearing document No.67 of 2020 dated 21.11.2020 in favour of respondent No.7. The said action of respondent No.6 is illegal.
31. According to learned counsel for the petitioner, respondent No.7 is own sister of respondent No.6, which fact was not disputed by learned counsel appearing for respondent No.6. Thus, the aforesaid facts would reveal that respondent No.6, during the subsistence of the aforesaid registered Deed of Mortgage by Conditional Sale and Agreements of Sale cum General Power of Attorney with possession in favour of of Smt. T.Shoba Rani and Sri Kalvakuntla Ravinder Rao, executed the aforesaid sale deed in favour of respondent No.7, his own sister. 20 The said action of respondent No.6 is illegal and it is hit by Lis Pendens in tems of Section 52 of the Act.
32. As stated supra, initially petitioner herein had filed the aforesaid suit vide O.S.No.100 of 2019 seeking cancellation of the aforesaid registered Agreements of Sale cum General Power of Attorney with possession both dated 05.12.2018 and for Permanent Injunction. Thereafter, he has filed the amendment petition and the same was amended and now petitioner is seeking declaration of title to declare him as absolute owner and possessor of the subject property to cancel the Pattadar passbook issued in favour of respondent No.6 and also respondent No.7 and to dirtect respondent No.5/Tahsildar to cancel the Agreements of Sale cum General Power of Attorney Nos.22205 and 22206 of 2018 both dated 05.12.2018. He is also seeking Permanent Injunction. Thus, it is comprehensive suit. The petitioner and respondent Nos.6 and 7 have to wait for the outcome of the said suit.
33. It is relevant to note that the role of Recording Authority under ROR Act, 1971 or ROR Act, 2020 is very 21 limited. They will consider the documents produced by parties and acquisition of rights basing on the same. They are not having power to consider complicated questions of fact including title of parties. The Recording Authority under ROR Act cannot consider whether respondent No.6 has repaid the aforesaid amount of Rs.10,00,000/- advanced to the petitioner and the contention of the petitioner that respondent No.6 has created the aforesaid receipt dated 05.08.2013 said to have been executed by the petitioner by forging signature. The Recording Authority cannot consider fraud as alleged by the petitioner and respondent No.6. It is the competent Civil Court which has to consider the aforesaid facts.
34. It is also relevant to note that the aforesaid case in Crime No.44 of 2021 registered on the complaint lodged by the petitioner against respondent No.6, wherein the Investigating Officer has already completed investigation and laid charge sheet against respondent No.6. The same was taken on the file vide C.C.No.417 of 2021 against respondent No.6 and it is pending. On complaint lodged by Sri Laxman B.Binny, police have 22 registered a case in Crime No.85 of 2021 against the respondent No.6 and on completion of investigation, investigating officer laid charge sheet against respondent No.6. The same was taken on the file vide C.C.No.41 of 2021 and it is pending for trial. The said aspects of Criminal Breach of Trust, cheating etc will be considered by the Trial Court in the aforesaid C.C's and Recording Authority under ROR Act cannot consider the said aspects.
35. In view of the aforesaid discussion, this Writ Petition is disposed of, the impugned order dated 15.06.2021 passed by respondent No.2 in case No.D1/39/2020 and the order dated 19.10.2019 of respondent No.4 is set aside. Mutation proceedings No.B/1514/2017 of December 2017 issued by respondent No.5 in favour of the petitioner is restored. Petitioner, respondent No.6 and respondent No.7 are at liberty to raise all the grounds and contentions which they have raised in the present Writ Petition in O.S.No.100 of 2019, learned Senior Civil Judge, Mahbubnagar shall decide the said suit uninfluenced by any of 23 the findings made herein above.There shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending in the Writ Petition shall stand closed.
___________________ K. LAKSHMAN, J 05.06.2023 SSY 24 HON'BLE SRI JUSTICE K. LAKSHMAN WRIT PETITION No.15642 of 2021 June 5th, 2023 SSY