Telangana High Court
Kunche Mallaiah vs The Additional Collector And Joint ... on 9 June, 2025
Author: B. Vijaysen Reddy
Bench: B. Vijaysen Reddy
THE HONOURABLE SRI JUSTICE B. VIJAYSEN REDDY
WRIT PETITION No.17657 OF 2020
ORDER:
The writ petition is filed by the petitioner challenging the order of respondent No.1 - the Additional Collector and Joint Collector, Jagital District, in Revision Petition No.D1/876/2019 dated 29.08.2020 confirming the order passed by respondent No.2 - the Revenue Divisional Officer, Jagital District, in Case Nos.B/11919/2017, B/1195/2017, B/1196/2017, B/1235/2017 dated 18.06.2019, and the order of respondent No.3 - the Tahsildar, Pegadapalli Village and Mandal, Jagital District, in Case Nos.B/1235/2017, B/251/2017 dated 25.04.2017, B/242/2017 dated 25.04.2017, Proceeding No.SB/KA/JG/PG/2016/170667 dated 30.04.2017, as being illegal and arbitrary.
2. Heard Mr. E. Madhan Mohan Rao, learned senior counsel, appearing for Mr. Venugopal Julakanthi, learned counsel for the petitioner, Mr. K. Muralidhar Reddy, learned Government Pleader for Revenue, appearing for respondent Nos.1 to 3 and, Mr. B. Mayur Reddy, learned senior counsel, appearing for 2 Mr. M. Yadagiri, learned counsel for respondent Nos.4 to 6, and perused the material on record.
3. The claim of the petitioner is that he owns land admeasuring Acs.4-19 guntas in Survey No.276, Acs.3-14 guntas in Survey No.16, Acs.5-19 guntas in Survey No.313, Acs.0-03 guntas in Survey No.3, Acs.0-39 guntas in Survey No.19, Acs.0-16 guntas in Survey No.17, Ac.0-33 guntas in Survey No.294, Acs.1-03 guntas in Survey No.295, Acs.3-04 guntas in Survey No.296, Acs.5-28 guntas in Survey No.302 and Acs.2-13 guntas in Survey No.314 of Vengalaipet Village, Pegadapalli Mandal, Jagital District, having inherited from Mr. Gurijala Mallaiah, who is the maternal grandfather (Sic. Maternal granduncle) of the petitioner. As Mr. Gurijala Mallaiah had no children, he adopted petitioner. After the death of Mr. Gurijala Mallaiah, the name of the petitioner was recorded in revenue records, Pahanies and 1B - Register as pattadar and possessor of the subject land in the year 1975-76, and the same continued till 2015-16.
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4. It is submitted that respondent No.3 passed order dated 25.04.2017 and 30.04.2017 mutating the names of respondent Nos.4 to 6 in respect of the subject land without issuing any notice to the petitioner and contrary to the Section 5(3) of the Telangana Rights in Land and Pattadar Pass Books Act 1971 (for short 'ROR Act 1971'); the respondent No.5 made application on 15.04.2017 to respondent No.3, who passed the order in Proceedings No.B/242/2017 dated 25.04.2017 within ten (10) days. Respondent No.4 also made an application dated 17.04.2017 to respondent No.3 without mentioning the particulars of the property for which corrections are sought to be made; however, respondent No.3 issued notice to the public for enquiry and passed order in Proceedings No.B/251/2017 dated 25.04.2017, without issuing any notice to the petitioner, and contrary to the Rule 9(1)(a)(iv) of the Telangana Rights in Land and Pattadar Pass Book Rules 1989 (for short 'ROR Rules 1989').
5. It is submitted that respondent No.3 has passed order in Proceedings No.SB/KA/JG/PG/2016/170667 dated 30.04.2017 in respect of the land admeasuring Acs.1-37 guntas in Survey No.314 without issuing any notice, incorporating the name of respondent 4 No.6 basing up on a sada bainama alleged to have executed by respondent No.4. Further, respondent No.3 also incorporated the name of respondent No.4 in respect of the land admeasuring Acs.4-19 guntas in Survey No.276 in the revenue records without issuing notice to the petitioner.
6. It is submitted that the four (4) appeals preferred by the petitioner in Case Nos.B/11919/2017, B/1195/2017, B/1196/2017 and B/1235/2017, challenging the mutation made in favour of respondent Nos.4 to 6 before respondent No.2, were dismissed by respondent No.2 by the common order dated 18.06.2019. The contention of the petitioner before respondent No.2 was that the impugned orders were passed without issuing notice to them. Respondent Nos.4 and 5 are younger brothers of the petitioner and children of Mr. Kunche Rajaiah and Mrs. Kunche Suramma. The maternal grandfather of the petitioner i.e., Mr. Gurijala Lingaiah had elder brother by name, Mr. Gurijala Mallaiah, who did not have children. The petitioner was taken in adoption by Mr. Gurijala Mallaiah, with the consent of his parents i.e., Mr. Kunche Rajaiah and Mrs. Kunche Suramma. After the death of 5 Mr. Gurijala Mallaiah, petitioner succeeded to the lands in Survey Nos.276, 3, 16, 17, 294, 295, 296, 302 and 214 of Vengalaipet Village. The petitioner contended that as per Section 5(3) of the ROR Act 1971 and Rule 9(1)(a)(iv) of the ROR Rules 1989, notice ought to have been issued to the petitioner before affecting the mutation in the names of respondent Nos.4 to 6, as petitioner was recorded as pattadar and possessor of the subject land.
7. It is submitted that respondent No.2 passed impugned order by recording that respondent Nos.4 and 5 are younger brothers of the petitioner and respondent No.6 is the purchaser of the land admeasuring Acs.1-37 guntas in Survey No.314 from respondent No.4 under sada bainama which was regularized by respondent No.3 and proceedings to that effect were issued in Form-13B vide No.SB/KA/JG/PG/2016/170667 dated 30.04.2017. Respondent No.2 further held that as per the report of respondent No.3, petitioner and respondent Nos.4 and 5 partitioned the ancestral properties situated at Lingapur and Vengalaipet Villages among them. As per their shares, respondent Nos.4 and 5 got lands in Vengalaipet Village and petitioner got land in Lingapur Village. 6 Thus, respondent No.2 held that petitioner has concealed the family partition of ancestral properties, and he did not have any possession over the subject lands. In conclusion respondent No.2 held that there are some procedural lapses, he did not find any reasons to interfere with the entries made in favour of respondent Nos.4 to 6 and dismissed the appeals filed by the petitioner. It is submitted that the petitioner filed revision petition bearing No.D1/876/2019 before respondent No.1 challenging the common order dated 18.06.2019 passed by respondent No.2, and the same was dismissed by respondent No.1 by the order dated 29.08.2020.
8. The relevant portion of the order dated 29.08.2020 passed by respondent No.1 is here as under:
"Perused the revision, counter and written arguments of both the parties and also the orders of lower court. It is seen from the impugned orders that the appellant and the Respondents (Kunche Sathiah and Devender) are own brothers and sons of Kunche Rajiah - Suramma who was earlier brought as Illutom son in law by late Gurijela Lingiah. As per the report of Tahsildar, Pegadapelli, there are lands in Lingapur and Vengalaipet villages and the name of appellant was recorded as pattedar, being elder of the family against the lands in Vengalaipet (v) but he is not issued pattedar pass book since 7 he is not having possession over the lands under contest. It is seen that there was an agreement in family vide settlement deed dated. 19.04.1980 among the parties for the lands in Lingapur&Vengalaipet villages and the respondents have informed that the revision petitioner got the lands of Lingapur
(v) whereas the respondents got the lands in Vengalaipet (v).
The revision petitioner has neither mentioned in his appeal nor in the present revision about not issuing pass book to him, which otherwise supports the version of respondents that their brother (rev.petitioner) got lands in Lingapur(v) and they got lands in Vengalaipet (v) as per family partition. The claim of revision petitioner with regard to his adoption taken by Gurijela Mallaiah and possession held by him over the lands under contest, is also not supported by any documentary evidence, except his contention that his name is recorded as pattedar in the records and he has not made any attempts to contest the possession of respondents for all these years. The appellate authority, i.e, the Revenue Divisional Officer, Jagtial has thoroughly examined all these aspects in perspective manner and passed order on 18.06.2019 and there is no Infirmity in the said orders. As a consequence, I do not find any reason to interfere with the orders of Revenue Divisional Officer, Jagtial."
9. The relevant portion of the order dated 18.06.2019 passed by respondent No.2 is here as under:
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"Though there is some procedural lapse noticed while processing the file in favor of respondent No.1, the sale of land in the year 2009 by Respondent No.2 confirms that the Respondent No.2 got the valid possession over the lands under appeal much earlier to the sale of lands to Thota Gangaiah and the appellant has not made any attempts to contest the same. According to the shares, the appellant got lands in Lingapur(v), the respondent being brother of appellant got lands under appeal in Vengalaipet(v) and he sold the land under appeal to Thota Gangaiah in the year 2009, who later sold it to respondent no.1."
10. Counter affidavit has been filed by respondent Nos.4 to 6. It is submitted that petitioner is not the adopted son of Mr. Gurijala Mallaiah as claimed by him. That Mr. Gurijala Mallaiah and Mr. Gurijala Lingaiah were biological brothers. Mr. Gurijala Mallaiah did not have any biological children, whereas Mr. Gurijala Lingaiah had four (4) daughters. Mr Gurijala Lingaiah performed marriage of his youngest daughter Ms. Gurijala Suramma with one Mr. Kunche Rajaiah and subsequently declared them as his legal heirs by keeping them as illatom (adopted son-in-law).
11. It is submitted that Mr. Gurijala Lingaiah and Mr. Gurijala Mallaiah owned several properties in Vengalaipet and Lingapur 9 Villages which are ancestral properties of the petitioner and respondent Nos.4 and 5. The ancestral properties situated in Lingapur Village were mutated in the name of Ms. Kunche Suramma and the lands in Vengalaipet Village were mutated in the name of the petitioner. Mr. Kunche Rajaiah, who was the father of the petitioner and respondent Nos.4 and 5, was mentally unstable, as such, the subject lands were directly mutated from Mr. Gurijala Lingaiah and Mr. Gurijala Mallaiah, in the name of the petitioner, being the elder son and Mrs. Kunche Suramma being the mother of petitioner and respondent Nos.4 and 5.
12. It is submitted that oral partition took place between the petitioner and respondent Nos.4 and 5 prior to 1980; whereby petitioner and respondent Nos.4 and 5 received their respective shares. The petitioner and respondent No.4 received their respective share of lands in Vengalaipet Village, while respondent No.4 was allotted in Lingapur Village and all of them took possession of their respective shares.
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13. It is submitted that in 1980, the petitioner created disturbance within the family with an intention to exchange his lands located in Vengalaipet Village with the land belonging to respondent No.5 in Lingapur Village as the lands in Lingapur Village had easy access to water and more fertile than the lands in Vengalaipet Village. On 19.04.1980, under pressure of the petitioner, respondent No.5 executed a settlement deed before the Village Panchayat elders stating that all the lands of respondent No.5 in Lingapur Village would be exchanged with the lands of the petitioner situated at Vengalaipet Village and respondent No.5 would receive Ac.0-10 guntas of land in Survey No.5 towards compensation, while respondent No.4 would remain unaffected.
14. It is submitted that pahani for the year 1975-76 indicates that respondent No.4 was in possession of the lands admeasuring Acs.4-19 guntas in Survey No.276, Acs.5-19 guntas in Survey No.313 and Acs.2-13 guntas in Survey No.314 of Vengalaipet Village. The notarized agreement dated 02.01.2017 entered between the petitioner and respondent Nos.4 and 5 clearly indicates that subject lands are ancestral lands and belonging to respondent Nos.4 11 and 5 and the petitioner is not the adopted son their grand uncle Mr. Gurijala Mallaiah.
15. It is submitted that respondent No.5 sold a portion of his land in Survey No.296 of Vengalaipet Village in 1990s and 2000s to several individuals and few of them have constructed houses on the lands purchased by them. The land admeasuring Acs.4-19 guntas in Survey No.276 in Vengalaipet Village has already been mutated in the name of respondent No.4 in the revenue records granting him valid title and recording him as pattadar in 2010-11 and he was issued pattadar pass book. The petitioner did not challenge mutation and pattadar pass book for seven (7) years despite having knowledge about the same. In 2009, respondent No.4 sold a portion of his land in Survey Nos.313 and 314 to one Mr. Thota Gangaiah who in turn sold the same to respondent No.6. The petitioner also sold land admeasuring Acs.3-00 guntas in Survey No.634 of Lingapur Village to one Mr. Ramancha Lachaiah which evidences that the petitioner has valid title and possession of the lands in Lingapur Village as per the settlement deed dated 19.04.1980. The petitioner has suppressed the crucial facts of the case i.e., existence of oral partition and 12 settlement deed and notarized agreement dated 02.01.2017 entered between the petitioner and respondent Nos.4 and 5.
16. Mr. E. Madhan Mohan Rao, learned senior counsel, appearing for Mr. Venugopal Julakanthi, learned counsel for the petitioner, submitted that impugned proceedings are in violation of principles of natural justice and contrary to Section 5(3) of the ROR Act 1971 and Rule 9(1)(a) and (c) of the ROR Rules 1989. As there were serious disputes of title with regard to subject land, respondent No.1 ought to have allowed the revision. Even as per the findings given by respondent No.2 in the common order dated 18.06.2019 there are procedural lapses committed by respondent No.3. The alleged oral partition and settlement deed are pressed into service before this Court, however, the mutation and pattadar passbooks were not issued based on such documents. The writ petition may be allowed, and the matter may be remanded to respondent No.3 for further enquiry.
17. Mr. B. Mayur Reddy, learned senior counsel, appearing for Mr. M. Yadagiri, learned counsel for respondent Nos.4 to 6, 13 submitted that petitioner has instituted a suit in O.S. No.9 of 2021 before the learned Senior Civil Judge, Jagital, (for short 'Trial Court') seeking declaration of title and perpetual injunction. Thus, when the title suit is pending before the Trial Court the instant writ petition was filed. As the petitioner availed effective alternate remedy, the writ petition is not maintainable. It is not in dispute that petitioner was allotted lands in Vengalaipet Village. The claim of the petitioner that he is adopted son of Mr. Gurijala Mallaiah cannot be decided neither in the mutation proceedings nor in this writ petition. The only remedy available to the petitioner is to pursue his civil suit. Petitioner and respondent Nos.4 and 5 are natural brothers and they were given equal shares. Thus, assuming that there are procedural lapses by revenue authorities, it does not warrant any interference in this writ petition.
18. Mr. E. Madan Mohan Rao, learned senior counsel, has drawn attention of this Court to the Memo dated 22.01.2024 filed by the petitioner along with the copy of the order dated 19.10.2023, wherein, the suit in O.S. No.9 of 2021 pending on the file of Trial Court was withdrawn by the petitioner with a liberty to file fresh suit 14 after disposal of this writ petition. Thus, contended that the objection taken by the learned senior counsel appearing for respondent Nos.4 to 6 will not come in the way of petitioner in pursuing this writ petition.
19. Mr. B. Mayur Reddy, learned senior counsel, submitted that petitioner cannot be allowed to approbate and reprobate. The writ petition was filed in the year 2020, the suit was filed in the year 2021 and the same was withdrawn on 19.10.2023. Having instituted the suit and availed effective alternate remedy, petitioner cannot be allowed to pursue the writ petition.
20. Section 5(3) of the ROR Act 1971 reads as under:
" 5(3) The [Mandal Revenue Officer] shall, before carrying out any amendment in the record of rights under sub-section (1) or sub-section (2) issue a notice in writing to all persons whose names are entered in the record of rights and who are interested in or affected by the amendment and to any other persons whom he has reason to believe to be interested therein or affected thereby to show cause within the period specified therein as to why the amendment should not be carried out.
A copy of the amendment and the notice aforesaid shall also be published in such manner as may be prescribed. The [Mandal Revenue Officer] shall consider every objection 15 made in that behalf and after making such enquiry as may be prescribed pass such order in relation thereto as he deems fit." Rule 9(1) of the ROR Rules 1989 reads as under:
"9. (1) (a) After due completion of enquiry, referred to in Rule 6 of the Recording Authority shall pass orders in respect of-
(i) All cases requiring change of Registry necessitated by the death of registered holder i.e., succession by heirship, if succession is not disputed. With regard to the entry of the names of the heirs, the names of all the heirs entitled to shares in the property should be registered;
(ii) all cases requiring change of registry necessitated by sale, gift, etc., through registered documents, if there is no dispute. In all cases of absolute transfer of title, the Registry of a holding should be altered to correspond with the transfer of its ownership. Where the Registered holder is not a party to a registered transaction, the registered holder should be enquired. The parties involved in a transfer should be connected by a complete chain of registered documents. Unregistered documents are not admissible as evidence in this enquiry to prove the ownership or title of the property. Where the chain is not complete, no transfer of registry shall be done.
Such cases shall be referred to the Mandal Revenue Officer, for disposal after confirmation of the Record of Rights for the villages;
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(iii) All cases requiring splitting of joint pattas which do not involve any dispute. Joint pattas held by a Hindu Joint Family shall not be split up unless the family request for it in writing. The Recording Authority shall enquire the joint Pattadars and after enquiry, by order, determine the share of land of each pattadar in the joint holding. The shares of the land shall be sub-divided in due course and the cost of sub-division recovered from the pattadars in proportion of their shares. After the confirmation of the Record of Rights, a person excepting a Hindu Joint Family in a village shall have only one patta for all his lands in the village as far as, it is practicable. Joint Patter cases in which there is a dispute shall be referred to the Mandal Revenue Officer after confirmation of the Records of Rights for the village;
(iv) ....
......
(c) (i) All disputed cases of transfer of registry, splitting of joint pattas, registering the names of [tenants, mortgagee and occupants] shall be submitted by the Recording Authority after the confirmation of the Record of Rights to the Mandal Revenue Officer for disposal in due course.
(ii) In respect of cases falling under Rule 9(1)(a)(i), the Mandal Revenue Officer shall hold a summary enquiry as to who has the right to succeed to the property of the deceased registered holder, according to the principles of Law of Succession which govern the case and give notice 17 to all persons known or believed to be interested to the effect that the registry will be made in the name of the person found to be entitled, unless a declaration if filed, within three months, from the date of the notice, by any person objecting to the registry, stating that he has instituted a suit in a Civil Court to establish his superior title and an authenticated copy of the plaint in the suit is produced. If no declaration is filed, the registry should be made as stated in the notice, at the expiration of three months. If a declaration is filed, the result of the suit should be awaited before taking further action. ..... "
21. It is clear from the above provisions that notice has to be issued to the persons interested whenever application is filed for mutation of revenue records and issuance of pattadar pass book. The name of the petitioner was entered in revenue records as pattadar in respect of the subject land. Even otherwise, petitioner is elder brother of respondent Nos.4 and 5 and they are children of Mr. Kunche Rajaiah and Mrs. Kunche Suramma. Thus, the petitioner has interest over the subject land and the respondent No.3 ought to have issued notice to him before effecting mutation. Respondent No.2 held that there was partition between the brothers i.e., petitioner and respondent Nos.4 and 5 and lands in Vengalaipet 18 Village were allotted to the petitioner and lands in Lingapur Village were allotted to respondent Nos.4 and 5. When appeal was filed challenging the order of mutation passed by respondent No.3, and when there were procedural lapses admittedly committed by respondent No.3, the normal course available to respondent No.2 is to remand the matter. Instead, respondent No.2 went into the merits of the case and gave finding about partition.
22. It is not the case of respondent Nos.4 and 5 that mutation was sanctioned in their favour and pattadar pass books were issued based on any partition. Had mutation been affected by partition/settlement deed as contended by respondent Nos.4 and 5, the situation would have been different. Thus, in the opinion of this Court respondent No.2 has committed error in dismissing the appeals. The same error was committed by respondent No.1 in the impugned order dated 29.08.2020 holding that there was settlement deed dated 19.04.1980 between the parties and prior to it there was oral partition between the petitioner and respondent Nos.4 and 5. Interestingly, the alleged family settlement deed was not part of the proceedings before respondent No.2. Whether there was any partition and whether 19 petitioner was in possession of the lands in Vengalaipet Village, and not in possession of the lands in Lingapur Village are the points to be decided by respondent No.3 who is the original authority. As there was violation of procedure contemplated under Section 5(3) of the ROR Act 1971 and Rule 9(1)(a) and (c) of the ROR Rules 1989, prejudice was caused to the petitioner by not giving opportunity to defend his case. The suit was filed in the year 2021, thus, objection taken by Mr. B. Mayur Reddy, learned senior counsel, cannot be accepted as the petitioner has chosen to withdraw the suit with a liberty to institute fresh suit. Further, as there were procedural lapses admittedly committed by respondent No.3 in issuing mutation proceedings in favour of respondent Nos.4 to 6 and it caused prejudice to the petitioner, the writ petition deserved to be allowed.
23. Accordingly, the writ petition is allowed setting aside the order of respondent No.1 in Revision Petition No.D1/876/2019 dated 29.08.2020. Consequently, the order passed by respondent No.2 in Case Nos.B/11919/2017, B/1195/2017, B/1196/2017, B/1235/2017 dated 18.06.2019, and the order of respondent No.3 in Case 20 Nos.B/1235/2017, B/251/2017 dated 25.04.2017, B/242/2017 dated 25.04.2017, Proceeding No.SB/KA/JG/PG/2016/170667 dated 30.04.2017, are also set aside. The matter is remitted back to respondent No.3 who shall conduct enquiry, by issuing notice to the petitioner, respondent Nos.4 to 6 and all other interested persons, and pass orders, in accordance with law, by affording them an opportunity of hearing. This exercise shall be completed within a period of three (3) months from the date of receipt of a copy of this order. There shall be no order as to costs.
As a sequel thereto, miscellaneous applications, if any, pending in the writ petition stand closed.
______________________ B. VIJAYSEN REDDY, J June 09, 2025.
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