Telangana High Court
Endla Laxmi vs The State Of Telangana on 15 July, 2022
Author: B. Vijaysen Reddy
Bench: B. Vijaysen Reddy
HONOURABLE SRI JUSTICE B. VIJAYSEN REDDY
WRIT PETITION No.24970 OF 2021
ORDER:
This writ petition is filed challenging the order of respondent No.2 - the Special Tribunal, represented by the District Collector, Mulugu District in Case No.E/20-243/2021 (ROR RP No.E/358/ 2020) dated 18.08.2021 confirming the order dated 19.09.2019 in ROR Appeal No.E/33/2017 passed by respondent No.3 - the Revenue Divisional Officer, Mulugu Division by setting aside the mutation Proceedings No.B/647/2015 dated 21.07.2015 issued by respondent No.4 - the Tahsildar, Mulugu Mandal & District in respect of the agricultural lands admeasuring Acs.3-12 guntas in Survey No.588/B and Ac.1-24 guntas in Survey No.588/C situated at Bandarupalli Village, Mulugu Mandal and District, as illegal, arbitrary, null and void and violative of Articles 14, 19, 21 and 300A of the Constitution of India.
2. The case of the petitioner is that petitioner No.2 and respondent No.5 are real brothers. They have partitioned their ancestral properties through oral family partition during 1990s 2 whereby petitioner No.2 was allotted Ac.1-24 guntas in Survey No.588/C, Ac.1-23 guntas in Survey No.588/C1 and Ac.1-23 guntas in Survey No.588/C2 and respondent No.5 was allotted Acs.3-12 guntas in Survey No.588/B. Accordingly, they had been in exclusive possession and enjoyment of their respective lands and based on the partition, they have applied for mutation to respondent No.4 - the Tahsildar, Mulugu Mandal and District. Notices were issued by respondent No.4 in Form - VIII as provided under Rule 10(1) of the Telangana Rights in Land and Pattadar Pass Books Rules 1989 (for short 'Rules 1989') inviting objections from the interested persons. As there was no response, the Tahsildar issued Proceedings No.B/647/2015 dated 21.07.2015 ordering mutation in favour of petitioner No.2 as pattadar of the lands that fell to his share in the oral partition i.e., an extent of Ac.1-24 guntas in Survey No.588/C, Ac.1-23 guntas in Survey No.588/C1 and Ac.1-23 guntas in Survey No.588/C2. Consequently, petitioner No.2 was issued pattadar passbook cum title deed bearing No.T24120010451 with Khata No.910 on 27.06.2018. Thus, it is submitted that the petitioner became absolute owner and had been 3 cultivating the lands. Since respondent No.5 and his henchmen were trying to interfere with his possession and enjoyment of the land, petitioner No.2 filed O.S. No.96 of 2019 before the learned Junior Civil Judge, Mulugu and the same is pending.
(i) The claim of the petitioners is that the land admeasuring Acs.3-12 guntas in Survey No.588/B which was allotted to respondent No.5 under the oral family partition during 1990s, was offered for sale by respondent No.5 in 1996 and the same was accepted by petitioner No.1 and he sold the same to her for a sale consideration of Rs.66,000/- under a simple sale deed dated 30.06.1996 and delivered possession of the same on the same day. Later, the said simple sale deed was regularised under the ROR Act by the Tahsildar and the name of petitioner No.1 was recorded in the revenue records as pattadar and pattadar passbook cum title deed bearing No.T24120010067 with Khata No.159 was issued to petitioner No.1 on 21.04.2018.
(ii) The petitioners state that respondent No.5 having partitioned ancestral properties with petitioner No.2 and sold his 4 land to petitioner No.1, filed ROR appeal No.E/33/2017 before respondent No.3 - The Revenue Divisional Officer, Mulugu Division and District under Section 5(5) of the Telangana Rights in Land and Pattadar Pass Books Act 1971 alleging that Acs.1-24 guntas in Survey No.588/C was allotted to the share of petitioner No.2 on the condition to maintain their father and after the death of their father, said land has to be partitioned between them, but petitioner No.2 got mutation of the said land illegally in his name.
(iii) So far as Acs.3-12 guntas of land that fell to the share of respondent No.5, it is stated that mutation was illegally made in the name of petitioner No.1 and prayed to set aside the same. Though the petitioners have resisted claim of respondent No.5, the Revenue Divisional Officer without appreciating their contentions allowed the appeal by the order dated 19.09.2019 holding that the petitioners got mutated the land in their name fraudulently and directed the Tahsildar to delete the entries in the revenue records and incorporate the name of respondent No.5 as pattadar of the subject lands equally. The order of the Revenue Divisional Officer was challenged by the petitioners in revision petition vide ROR RP 5 No.E/358/2020 before the Joint Collector. However, in view of the enactment of the Telangana Rights in Land and Pattadar Pass Books Act 2020, the revision was transferred to the Special Tribunal and numbered as Special Tribunal Case No.E/20-243/2021. The Special Tribunal passed the order dated 19.02.2021 setting aside the order of the Revenue Divisional Officer dated 19.09.2019. Respondent No.5 fled objection / reopen petition on 07.04.021 and the Special Tribunal reopened the matter and passed the impugned order dated 18.08.2021 reversing its earlier order dated 19.02.2021 holding that the mutation proceedings in favour of the petitioners are illegal.
(iv) The claim of the petitioners is that the Special Tribunal failed to appreciate that the land admeasuring Ac.1-24 guntas in Survey No.588/C fell to the share of petitioner No.1 in the oral family partition and respondent No.5 failed to file a single document to establish that the above land was allotted to 'petitioner No.2 and their father in the oral family partition on the condition to maintain their father and after the death of their father, the said extent is to be partitioned again between them.' Further, it was 6 stated that mutations were effected in 2015 and the appeal was preferred on 12.07.2017, as such, the appeal is miserably barred by limitation and in spite of the same, the appellate authority entertained the appeal instead of dismissing the same.
(v) The Special Tribunal and the Revenue Divisional Officer failed to appreciate the report dated 07.07.2015 submitted by the Revenue Inspector which reveals that Ac.1-24 guntas in Survey No.588/C was allotted to petitioner No.2 in the oral family partition and petitioner No.2 is in possession of the same for more than 20 years and that the Tahsildar issued mutation proceedings No.B/647/2015 dated 21.07.2015 by following due procedure as required under Rule10(1) of the Rules 1989 and no objections were received.
(vi) Further in respect of Acs.3-12 guntas in Survey No.588/B is concerned, regularisation proceedings were issued in favour of petitioner No.1 by following due procedure under the Act 1971. It is further submitted that there is serious title dispute between the two brothers and several other legal heirs of original 7 pattadar viz., Endla Rajanna and the appellate authority and the revisional authority are not competent to verify genuineness of the simple sale deed.
3. Respondent No.5 filed counter. The case of respondent No.5 is that admittedly there was oral partition effected in 1990. However, it is contended that petitioner No.2 was not allotted Ac.1-24 guntas in Survey No.588/C. According to respondent No.5, petitioner No.2 was allotted Ac.1-23 guntas in Survey No.588/C1 and Acs.1-23 guntas in Survey No.588/C2; and respondent No.5 was allotted Acs.3-12 guntas in Survey No.588/B. At the time of partition of joint family properties, their father Mr. Endla Rajanna and petitioner No.2 was allotted agricultural lands admeasuring Ac.1-13 guntas in Survey No.588/B and Ac.1-24 guntas in Survey No.588/C, totalling Ac.2-37 guntas, forming one compact block for maintenance of their father Mr. Endla Rajanna subject to the condition that after the death of their father, petitioner No.2 and respondent No.5 are entitled to equal shares therein.
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(i) It is further stated that their father Mr. Endla Rajanna died on 01.11.2014 due to old age ailments. Respondent No.5 is also suffering from paralysis and in view of education of his children, he shifted his residence to Hanamkonda. Taking advantage of the same, petitioner No.2 colluded with the Tahsildar and got mutation proceedings issued in his name in respect of the land in Survey No.588/C for Ac.1-24 guntas and got pattadar pass books and title deeds for the said lands along with his allotted share. Respondent No.5 was not issued any notice by the Tahsildar.
(ii) Civil Suit in O.S. No.96 of 2020 was filed for perpetual injunction by making all false claims. The regularisation proceedings issued in favour of petitioner No.1 in respect of Acs.3-12 guntas in Survey No.588/B was not in accordance with the mandatory rules under the ROR Act. The alleged sale deed does not contain name and signature of the document writer and it contains signature of only one witness. Thus, the document is invalid. Hence, the regularisation proceedings do not carry any weightage.
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(iii) After examination of facts and circumstances and perusing the records, the Revenue Divisional Officer - appellate authority, cancelled pattadar passbooks issued earlier in favour of the petitioners vide order dated 19.09.2019. The Special Tribunal passed order dated 19.02.2021 setting aside the order of the appellate authority dated 19.09.2019. Respondent No.5 filed reopen petition and on hearing both sides and written arguments, the Special Tribunal passed the order dated 18.08.2021 by reversing its earlier order dated 19.02.2021.
4. Heard Mr. Jithender Rao Veeramalla, learned counsel for the petitioners, learned Assistant Government Pleader for Revenue for respondent Nos.1 to 4, and Mr. M. Yashwanth Kumar, learned counsel for respondent No.5, and perused the material on record.
5. The learned counsel for the petitioners has submitted to this Court that respondent No.5, who is arrayed as respondent No.3 in Case No.E/20-243/2021 (ROR RP No.E/358/2020) was absent due to ill-health and his wife Smt. Y. Buchchamma attended the Court proceedings on 19.02.2021 and made oral submissions. 10 The version of wife of respondent No.5 was duly recorded by the Special Tribunal. In the unnumbered paragraphs 3 and 4 of page No.3 of the order dated 19.02.2021, having held that the dispute regarding the subject property is civil in nature between the real brothers claiming share in ancestors property and there are other legal heirs of original owner Endla Rajanna, the Special Tribunal came to the conclusion that it is not competent for the Tribunal to verify genuineness of simple sale deeds or any other documents. Further, it was observed that as per the judgment of this Court in V. Goutham Rao v. Revenue Divisional Officer, Jagtial, Karimnagar District (2003 (1) ALD 681), serious disputes of title claims or rival title have to be adjudicated before the civil Court, and, thus the Revenue Divisional Officer acted beyond its jurisdiction in deciding the title issue between the parties and the order of the Revenue Divisional Officer was set aside by the order dated 19.02.2021. Thus, having passed a detailed order dated 19.02.2021 on merits, the Special Tribunal could not have reopened the matter and reversed its order dated 19.02.2021 by the 11 order dated 18.08.2021. The said order is a nullity and non-est as the Special Tribunal has no power of review.
6. On the other hand, learned counsel for respondent No.5 submits that respondent Nos.2 and 3 have not violated any statutory or constitutional rights and therefore the writ petition is not maintainable.
7. After hearing both sides and perusing the revenue records, by the order dated 18.08.2021, the Special Tribunal set aside the order of mutation dated 21.07.2015 issued in favour of petitioner No.2 cancelling mutation proceedings and validation of simple sale deed by reversing its earlier order dated 19.02.2021.
8. The first question which needs to be decided is whether respondent No.2 - the Special Tribunal was competent to reopen ROR RP No.E/358/2020 and pass order dated 18.08.2021 setting aside its earlier order dated 19.02.2021?
9. There is no power of review vested with the Special Tribunal under the provisions of the Act 2020. The revision case 12 which was filed under Section 9 of the Telangana Rights in Land and Pattadar Pass Books Act 1971 was transferred to the Special Tribunal consequent upon enactment of Act 2020. Even under the Act 1971, there was no power of review available to the revenue authorities at all levels including revisional authority under Section 9 of the Act 1971. The order dated 19.02.2021 was passed by the Special Tribunal on merits by hearing all the parties concerned.
10. A general order vide W.P. (PIL) No.20 of 2021 dated 18.03.2021 was passed by a learned Division Bench of this Court (to which I am a Member) directing the Special Tribunals in various Districts to reopen the matters wherever opportunity of hearing was not given to the parties. The said order is applicable only to the parties who were not heard and where there were violation of principles of natural justice. The order of the Division Bench is not applicable to the cases which were heard on merits and also to the instant case where the revision petition was heard on merits by giving opportunity to the wife of respondent No.5 and allowed by the order dated 19.02.2021. Therefore, the question of the Special Tribunal reopening the matter by exercising review 13 power, which is not available under the Act, would not arise. As such, the order of the Special Tribunal dated 18.08.2021 is illegal and is liable to be set aside.
11. The further question which needs to be decided is whether the Revenue Divisional Officer was competent to go into the issue of mutation proceedings issued in favour of the petitioners pursuant to oral partition / validation proceedings?
12. There is a serious dispute by respondent No.5 claiming that an extent of Ac.1-24 guntas of land in Survey No.588/C was allotted to petitioner No.2 for maintenance of their father Endla Rajanna. The oral partition in the year 1990 was not disputed, so also allotment of Acs.3-12 guntas in Survey No.588/B in favour of respondent No.5. Thus, the issue was purely a civil dispute to be decided by a competent civil Court.
13. Further, in respect of validation proceedings for an extent of Acs.3-12 guntas in Survey No.588/B stated to have been issued in favour of petitioner No.1, the same was not questioned by respondent No.5 by invoking appeal remedy under Section 5B of 14 the Telangana Rights in Land and Pattadar Pass Books Act 1971. The contention of respondent No.5 that two witnesses are required under law and the simple sale deed in the instant case containing only one witness, and for such reason, the sale deed is invalid; moreover the name of the document writer is not mentioned in the simple sale deed are totally irrelevant points which are not within the jurisdiction of the revenue authorities to adjudicate. It is for the civil Court to decide such issues.
14. For the aforesaid reasons, the writ petition is allowed setting aside the order of respondent No.2 - the Special Tribunal in Special Tribunal Case No.E/20-243/2021 (ROR RP No.E/358/ 2020) dated 18.08.2021. No order as to costs.
As a sequel thereto, miscellaneous applications, if any, pending in the writ petition stand closed.
______________________ B. VIJAYSEN REDDY, J July 15, 2022.
PV