Andhra HC (Pre-Telangana)
Sayanna (Died) Per L.R. And Anr. vs The District Collector, Mahabubnagar ... on 4 April, 2002
ORDER
1. This revision petition is filed against the order dated 21.8.2001 in E.P.No. 88 of 2000 in O.S.No. 264 of 1988 on the file of Junior Civil Judge, Mahabubnagar. The decree holders filed this revision petition.
2. Necessary facts for the disposal of this revision petition are as follows:
Ac.5.08 guntas of dry land in S.No. 89 of Mahabubnagar is classified in Revenue records as Government Poramboke land. The revision petitioners claimed that they are the absolute owners of the said land. They filed a suit in O.S.N o.160 of 1981 on the file of the District Munsif, Mahabubnagar, seeking the decl aration of their title and perpetual injunction against the defendants therein.
The first defendant is the State of A.P., represented by the District Collector, Mahabubnagar.The second defendant is the Tahsildar, Mahabubnagar. The suit wa s decreed on 23.12.1982. Thereupon the defendants therein preferred an appeal i n A.S.No.34 of 1983 in the District Court and the said appeal was dismissed by A dditional District Judge, Mahabubnagar, by judgment dated 5.2.1985. Immediately thereafter and within the period of limitation prescribed therefor, the defenda nts therein did not prefer any Second Appeal before the High Court. Though the plaintiffs were declared as absolute owners of the said property in December, 19 82, itself, curiously in November, 1988 the Mandal Revenue Officer issued evicti on notice to the revision petitioners under the provisions of Land Encroachment Act. The revision petitioners filed a writ petition in W.P.No.19067 of 1988 cha llenging the said eviction notice. The writ petition was allowed by this court on 7.2.1991.Thereafter the revision petitioners moved a petition before the District Collector, Mahabubnagar, for implementation of the said decree in the Revenue records and to alter and change the entry by deleting the name of the Government and recording the names of the revision petitioners-plaintiffs in the relevant columns in the Revenue records and for issuance of ryotwari passbook. The concerned authorities did not take any steps to make necessary entries in the revenue records. Thereafter after issuing Section 80 C.P.C., notice, the revision petitioners filed a second suit in O.S.No.264 of 1988 for a direction to the District Collector, Revenue Divisional Officer and Mandal Revenue Officer to alter and change in the revenue records by deleting the name of the Government in Column No.13 Old Pahani and Column No.12 of the present Pahani (Adangal) and to re cord the names of the plaintiffs - revision petitioners in those lands in respec t of the land covered by S.No. 89. The said suit was decreed by the District Mu nsif, Mahabubnagar, by judgment and decree dated 27.4.1993. The said decree and judgment have become final and conclusive. Thereafter the decree holder filed E.P.No. 24 of 1994 to get the decree implemented by ordering the arrest of judgment debtors-defendants in the above suit. By order dated 30.3.1995 the Executin g Court ordered the arrest of judgment debtors therein. Aggrieved by that order of arrest, the judgment debtors therein preferred a revision petition in C.R.P.No. 1895 1995 on the file of this court. Meanwhile the defendants in O.S.No.160 of 1981 filed a second appeal against the judgment and decree in A.S.No.34 of 1983 along with a petition to condone delay of about ten years in filing the second appeal before the High Court. The second appeal as well as C.R.P.No.1895 of 1995 came up for hearing before a Division Bench of this court. The Division Bench dismissed the delay condonation petition and consequently the second appeal. On 9.6.2001 a Division Bench of this court disposed of C.R.P.No.1895 of 1995. This court held that in view of the disposal of the second appeal, the logical consequence is that consequential steps have to be taken to implement the decree. This court further held that in case of failure to do so, it is open to the respondents, namely, the revision petitioners herein to file a fresh petition for execution. It is further observed that in view of the change of officers and long pendency of Second Appeal (SR), Their Lordships did not consider it just and proper to allow the same warrant of arrest to be operative and the present revision petitioners are given an option to file a similar application afresh in case of non-implementation of the decree. Subsequently the defendants in the suit preferred a Special Leave Petition before the Supreme Court challenging the orders of the Division Bench of this court refusing to condone the delay in filing the second appeal and dismissing the second appeal. The Supreme Court in SCLP.No. 19208 of 2000 by order dated 26.2.2001 dismissed the Special Leave Petition. Therefore, as on today the decree passed in O.S.No.160 of 1981 declaring the title of the revision petitioners regarding the disputed property had become final and conclusive. As already noticed the decree in O.S.No.264 of 1988 had also become final and conclusive.
3. After the disposal of C.R.P.No.1895 of 1995, as the defendants in the suit did not carry out necessary alterations and corrections in the revenue records in pursuance of the decrees in O.S.No.160 of 1981 as well as O.S.No.264 of 1988, the revision petitioners filed a fresh E.P., in E.P.No.88 of 2000 in the trial court invoking the provision in Order XXI Rule 32 C.P.C., requesting the executi ng court to issue notice to the judgment debtors for implementation of the decree and failing which to detain the judgment debtors in Civil Prison till they had complied with the decree passed by the said court. As the Executing Court did not take prompt steps in passing the orders in the above E.P., under Article 227 of the Constitution of India, the present revision petitioners filed C.R.P.No. 3145 of 2001 requesting this court to direct the Executing Court to dispose of E.P.No. 88 of 2000. By order dated 19.7.2001 this court directed the executing court to dispose of E.P.No.88 of 2000 in O.S.No. 264 of 1988 in accordance with law within four weeks from the date of receipt of a copy of the said order.
In the said order this court observed that the revision petitioners are made to run from pillar to post for realising the fruits of the decree. After the directions given in the above C.R.P., the Executing Court passed an order on 21.8.2001 dismissing the execution petition. The Executing Court stated in the impugned order that as per the provision in Order XXI Rule 32 C.P.C., the decree for an injunction may be enforced by detention of the judgment debtors in Civil Prison or by attachment of their property or by both. The Executing Court further observed that having regard to the fact that the decree is not against the persons as claimed in the E.P., it is not at all just and proper to issue arrest warrants against the judgment debtors and the decree holders may take steps by filing fresh E.P., for attachment of the properties of the judgment debtors, if they are so advised, to compel the judgment debtors to obey the decree and still if the judgment debtors failed to obey the decree, the decree holders are at liberty to make request to the court for awarding of compensation as envisaged under Order XXI Rule 33 sub-rule (3) C.P.C. Aggrieved by the said order of the Executing Court, the decree holders filed the present revision petition before this court.
4. The main objection of the respondents is that the decree passed by the tri al court in O.S.No.264 of 1988 is a nullity and the Civil Court has no jurisdiction to entertain and dispose of the said suit. According to the respondents the Civil Court lacked inherent jurisdiction to pass judgment and decree in question. Reliance was placed on the provisions in the Andhra Pradesh Record of Rights in Land Act, 1971 (hereinafter referred to as 'the Act'). The said Act was passed to consolidate and amend the law relating to the record of rights in land in the State of Andhra Pradesh. As per Section 2(9) of the Act "record of rights" means records prepared and maintained under the provisions, or for the purposes of the Act. Similarly Section 2(10) of the Act defines "recording authority" as such officer of the Revenue Department not below the rank of Revenue Inspector as may be notified by the Collector to be the recording authority for the purposes of this Act.At this juncture itself is to be stated that according to the respondents Mandal Revenue Officer of the concerned Mandal is notified as recording authority. Section 3 of the Act deals with preparation and maintenance of record of rights in all the lands. Section 4 prescribes the procedure in which any person who acquires the rights in any agricultural land intimating about his acquisition of rights to the prescribed authority. Section 5 of the Act lays down that on receipt of intimation of fact of acquisition of any right referred to in Section 4, the recording authority shall determine as to whether, and if so in what manner, the record of rights may be amended in consequence thereof and shall carry out the amendment in the record of rights in accordance with such determination. For the purpose of this revision petition, it is not necessary to state the other provisions in Section 5 of the Act. Section 6 provides for presumption ofcorrectness of the entries made in the record of rights. Section 6-A provides for issuance of pattadar passbooks to the land owners.
5. Section 8 is the provision relied upon by the learned advocate for the respondents in the present revision petition. Section 8 of the Act reads as follows:
" Bar of suits:- (1) No suit shall lie against the Government or any officer of Government in respect of a claim to have an entry made or in relation to an entry made in any record of rights or to have any such entry omitted or amended.
(2) If any person is aggrieved as to any right of which he is in possession by an entry made in any record of rights he may institute a suit against any person denying or interested to deny his title to such right for declaration of his right under Chapter VI of the Specific Relief Act, 1963 (Central Act 47 of 1963) and the entry in the record of rights shall be amended in accordance with any such declaration".
6. According to the learned counsel for the respondents the said provision in Section 8 of the Act bars a suit against the Government or any Officer of the Government in respect of a claim to have an entry made or in relation to any entry made in any record of rights or to have any such entry omitted or amended. According to him it is an absolute bar on the powers of the Civil Court to entertain a suit. It is the contention that the said provision indicates that the Civil Court lacks inherent jurisdiction to entertain the suit. Before analyzing the provisions contained in Section 8(1) and 8(2) of the Act, I propose to consider two decisions relied upon by the learned advocate for the respondents in this regard. The first decision isa judgment of the Supreme Court in Chandrika v. Bhaiyalal (1). It was held by the Supreme Court that where the court is inherently lacking in jurisdiction, the plea as to jurisdiction may be raised at any stage, even if it was not raised in the trial court. The second decision relied upon is a judgment of this Court in D. Satyanarayana Rao v. Vasudev Asrani (2). It was held that decree passed by a court lacking jurisdiction is a nullity and such a decree passed by the Civil Court is without jurisdiction and the Executing Court can reject an Execution Petition holding that the decree was not an executable one if it was passed by a court not having inherent jurisdiction.
7. There is no controversy regarding the said proposition of law laid down in those two decisions. This court has to consider now whether Section 8 of the Act inherently bars the jurisdiction of the Civil Court to entertain a suit similar to the suit in O.S.No.264 of 1988 and passing a decree. I am fully satisfied that the jurisdiction of the Civil Court to entertain and dispose of a suit similar to O.S.No.264 of 1988 is not barred. I propose to give the reasons hereunder for my conclusion.
8. As per the present entries in the revenue records the Government is the owner of plaint schedule properties. By virtue of the judgment and decree in O.S.No.160 of 1981, there was a declaration by the competent Civil Court that the present revision petitioners-plaintiffs are the absolute owners of the disputed property and there was also a perpetual injunction restraining the State of Andhra Pradesh from interfering with the possession and enjoyment of the disputed property by the plaintiffs. As the said decree was ultimately confirmed even by the Supreme Court by dismissing the Special Leave Petition, it is no longer open for the State of Andhra Pradesh to claim still that it is the owner of the disputed property. That judgment and decree further makes it clear that the present entries in the revenue records regarding the ownership of the disputed property are incorrect entries. In view of that judgment and decree, the correct or true entries in the revenue records must be to the effect that the plaintiffs are the owners of the disputed property.
9. As per the provisions of the said Act, the Mandal Revenue Officer, Mahabubnagar, is the recording authority to make entries in the revenue records as well as to alter or amend the entries in the revenue records subsequently. This is not in dispute. Section 9 empowers the District Collector either suo motu or on an application made to him, call for and examine any record of rights prepared or maintained under Section 3, etc., to satisfy himself as to the regularity of such record, order or proceeding or the correctness, legality or propriety of any decision passed or order made therein and if in any case it appears to him that any such record, order or proceeding should be amended, modified, annulled, reversed or remitted for reconsideration, he may pass orders accordingly. I have already stated supra that after the judgment and decree in O.S.No.160 of 1981 and before filing the second suit in O.S.No.264 of 1988, the revision petitioners-plaintiffs made an application to the District Collector to make correct entries in the revenue records. This fact is clear from the averments in the plaint as stated in the judgment in O.S.No.264 of 1988.
Undisputedly the District Collector did not order or direct the recording authority to make correct entries in the revenue records to reflect the judgment and decree of the Civil Court in O.S.No. 160 of 1981.
10. It is now relevant to narrate the contents of counter filed by judgment debtor No.3 (M.R.O., Mahabubnagar) on behalf of judgment debtors in E.P.No.88 of 2000. Para 2 of the counter reads as follows:
" It is submitted that the suit filed by the D.Hr in O.S.No.160/81 on the file of this court against the Govt. including M.R.O., and R.D.O. Mahabubnagar is for declaration of title in respect of the suit schedule lands. The decree is liable to be implemented in R.O.R. and in pahanies, because it is a decree for declaration of title to the property. More over it is obtained against the Govt. But the Govt. already filed First Appeal, Second Appeal and after dismissal of the Second Appeal, the Govt. also approached the Hon'ble Supreme Court of India to set aside the decree in O.S.No.160/81 vide Supreme Court S.L.P.No. 19208/2000, which is still pending".
The averment in the counter makes it clear that even according to the judgment debtors the decree in O.S.No.160 of 1981 is liable to be implemented in R.O.R. and in pahanies because it is a decree for declaration of title to the property. The reason given in the counter for not implementing the said decree is Special Leave Petition was filed in the Supreme Court and it was pending. The said Special Leave Petition, before the Executing Court passed the present impugned order, was dismissed by the Supreme Court of India. Therefore, the judgment debtors in the Execution Petition are bound to implement the decree in O.S.No.160 of 1981 in revenue records. The judgment debtors have not so far made necessary corrections and alterations in the revenue records to reflect the judgment and decree passed by the Civil Court in O.S.No. 160 of 1981.
11. Now keeping in view the above specific stand of the judgment debtors in t he E.P., concerned, I propose to give my further reasons. Section 8(2) of the Act is an important provision in my considered opinion. It lays down that if any person is aggrieved as to any right of which he is in possession by an entry made in any record of rights, he may institute a suit against any person denying or interested to deny his title to such right for declaration of his right under Chapter VI of the Specific Relief Act, 1963, and the entry in the record of rights shall be amended in accordance with any such declaration. In view of this specific provision in the Act itself, it is not open for the judgment debtors to contend in the present revision proceedings that the jurisdiction of the Civil Court is barred in entertaining and passing a decree in the above suit. It is the plaintiffs-decree holders who are aggrieved by the entries in the revenue records regarding the ownership over the disputed property. It is the District Collector and Mandal Revenue Officer who are denying the title of the plaintiffs over the disputed property. They are setting up rival claims over the suit property even after decree and judgment in O.S.No. 160 of 1981. Even thereafter they have taken steps to evict revision petitioners on the ground that they are the encroachers and that the said suit property is government property.Therefore they are the persons who are denying or interested in denying the title of the plaintiffs in O.S.No.264 of 1988. They are the persons " denying or interested to deny his title" within the meaning of Section 8(2) of the Act. Therefore, the provision in Section 8(2) of the Act confers a right on the present plaintiffs-decree holders to institute a suit in a Civil Court against them to get amended the entries in the record of rights maintained by the revenue officials in accordance with the provisions of the said Act. Therefore, absolutely there is no force whatsoever in the main objection raised by the judgment debtors in the execution proceedings.
12. The next contention advanced is that the second suit was not filed against the Government and as per Section 79 of the Code of Civil Procedure, the suit is to be filed against the Government, represented by the District Collector and in the second suit the Government is not made a party and only the District Collector, Revenue Divisional Officer and Mandal Revenue Officer are made parties to the suit and therefore the suit is bad in law. I find no force in that contention. When a suit is filed against the Government, then the Government shall be represented by the District Collector. Code of Civil Procedure does not bar an individual suit to be filed against the Officers of the Government in their official capacity. The second suit was filed against three officers of the Government and those officers of the Government are the persons who are bound to make correct entries in the revenue records and especially to obey the judgment and decree of the Civil Court and make necessary alterations or amendments in the revenue records. Therefore, I cannot accept the contention that the second suit filed is not maintainable in law. Even if that contention is tenable, it does not amount that the Civil Court lacks inherent jurisdiction to entertain such a suit and pass the decree in question. The objectionin that regard was not taken by the defendants in the suit. It is not an objection to be taken before the Executing Court. Further, such an objection was not even taken before the Executing Court.
13. The other contention urged is that in the second suit court fee for the relief asked for was paid under Section 43 of A.P. Court Fee Act and not under Section 26 of A.P. Court Fee Act and therefore the suit cannot be considered as a suit for injunction and therefore the provision in Order XXI Rule 32 C.P.C., is not attracted. There is no force in this contention also. The decree was passed in the second suit ordering the defendants to record the names of the plaintiffs in column No.13 of the Old Pahanies and Column No.12 of the Pahanies for the year 1987-88 by deleting the name of the Government in respect of land bearing S.No.89 measuring Ac.5.08 guntas situated at Mahabubnagar proper. This decree is undoubtedly a decree of injunction directing the defendants to make necessary entries in the revenue records. When this decree is not obeyed and implemented by the defendants concerned, the decree holders are at liberty to invoke the provision in Order XXI Rule 32 C.P.C., to detain the judgment debtors in Civil Prison till they implement the decree in question.
14. I would now consider the reason given by the Executing Court for not ordering the arrest of the judgment debtors.According to the Executing Court the decree holders could have sought for attachment of the property of the judgment debtors or for compensation and not the relief of arrest of judgment debtors. The option is given to the decree holders to seek any of the remedies provided in Order XXI Rule 32 C.P.C., to force the judgment debtors to implement the decree in question. Just because the persons holding the posts of District Collector, Revenue Divisional Officer and Mandal Revenue Officer at the time of institution of the suit are not the persons now holding those official posts, the relief of arrest cannot be denied. Even the officers now holding those three offices are quite aware of the decrees in the two suits concerned. They are not pleading that they are not aware of those judgments and therefore they did not implement the second decree and amend accordingly the entries in the revenue records. When such a plea was not even put forward by the judgment debtors themselves, in my considered opinion, it is too much for the Executing Court to come to the rescue of the judgment debtors just because they hold high offices as on today.I am, therefore, of the opinion that to make the judgment debtors to obey implicitly and implement the decree of the Civil Court and to make necessary entries in the revenue records, it is necessary to order their arrest and detention in Civil Prison till the judgment debtors implement the decree in question. Therefore, the impugned order is liable to be set aside.
15. In the result, the revision petition is allowed. The order dated 21.8.2001 dismissing E.P.No. 88 of 2000 is set aside. The said E.P., is restored to file of Junior Civil Judge at Mahabubnagar. It is further ordered that if the judgment debtors failed to implement the decree in O.S.No. 264 of 1988 by making necessary amended entries in the revenue records and file their sworn affidavits to that effect before the Executing Court by 03.06.2002, the Executing Court shall issue warrants of arrest to arrest the judgment debtors and detain them in Civil Prison till they implement the decree in question. The Executing Court shall not entertain any application from the judgment debtors and extend the time for implementing the above decree. The respondents are directed to pay the revision petitioners costs of Rs.1000=00 (Rs. One thousand only) in the present revision petition.