Telangana High Court
P.Lakshma Reddy, vs The State Of Andhra Pradesh on 9 June, 2023
THE HONOURABLE SRI JUSTICE MUMMINENI SUDHEER KUMAR
WRIT PETITION No.2714 of 2014
O R D E R:
This Writ Petition is filed seeking a Writ of Certiorari questioning the order passed by the 2nd respondent in case No.D5/3140/2013 dated 17.01.2014 and to quash the same being illegal and arbitrary.
02. The subject matter of this Writ Petition is the land admeasuring Ac.6-06 guntas situated in Survey Nos.454, 440 and 554 of Bowrampet Village, Quthbullapur Mandal, Rangareddy District.
03. The admitted facts of the case are that one late P.Veera Reddy is the common ancestor of petitioner and respondent No.5 herein. The said P.Veera Reddy had 4 sons namely Bal Reddy, Lakshma Reddy (the petitioner herein), Ranga Reddy (the deceased father of respondent No.5 herein) and Jagga Reddy. The said P.Veera Reddy was possessor of various lands situated in Bowrampet and Suraram Villages. The petitioner herein, the said Balreddy and the 5th respondent herein were issued ownership certificate under 38E of Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short 'the Act, 1950') in respect of the land situated in Survey Nos.440, 454 and 554 of Bowrampet Village totally 2 MSK, J wp_2714_2014 admeasuring Ac.18.18gts i.e., Ac.6.06gts each. The petitioner herein and respondent No.5 along with other shareholders approached the 4th respondent by submitting a joint application dated 13.02.1996 requesting for issuance of pattadar passbooks in their respective names in terms of the details furnished along with the said application. The respondent No.4 herein after having considered the said joint application submitted by the petitioner and respondent No.5 along with others issued proceedings No.A/91/96 dated 22.02.1996 for mutating their names and for issuance of passbooks in respect of the land as mentioned in the said joint application. In terms of the said proceedings dated 22.02.1996, the lands allotted to the respective parties including the petitioner and respondent No.5 were mutated in the revenue records and pattadar passbooks were issued in their favour respectively. The petitioner and respondent No.5 are signatories to the said joint application and a copy of the said joint application together with the proceedings dated 22.02.1996 is placed on record. The land admeasuring Ac.18.18 guntas that was covered by ownership certificate issued under Section 38E in favour of the petitioner, respondent No.5 herein and another was also subjected to the joint application referred to herein above and was also covered by the proceedings dated 22.02.1996 issued by the 4th respondent. The 3 MSK, J wp_2714_2014 said land admeasuring Ac.18.18 guntas stood allotted and mutated in favour of the petitioner herein. He was also issued pattadar passbooks in respect of the said extent of land. The respondent No.5 herein along with 2 others filed an appeal against the said proceedings dated 22.02.1996 before the 3rd respondent herein under Section 5(5) of the Andhra Pradesh Records of Rights in Lands and Pattadar Passbooks Act, 1971 (for short 'the Act, 1971') after a lapse of 10 years since the date of issue of such proceedings and the said appeal was dismissed by the 3rd respondent by an order dated 25.08.2008 in Appeal No.A2/5266/2007 on merits as well as on the ground of limitation.
04. Aggrieved thereby, the respondent No.5 filed a revision petition under Section 9 of the Act, 1971 and the said revision petition was allowed by the respondent No.2 through the impugned proceedings dated 17.01.2014 directing to delete the name of the petitioner from the revenue records in respect of the subject land and ordered for entering the name of the respondent No.5 herein. Aggrieved by the same, the present Writ Petition is filed. 4
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05. Heard Sri Pottigari Sridhar Reddy, learned counsel for the petitioner, the learned Assistant Government Pleader for Revenue and Sri Rajagopallavan Tayi, learned counsel for the respondent No.5.
06. It is the contention of the learned counsel for the petitioner that the proceedings dated 22.02.1996 was issued by the respondent No.4 on the joint application submitted by the petitioner and respondent No.5 along with two others and the proceedings, dated 22.02.1996 issued by respondent No.4 was a consenting order which was accepted by all the parties and was also acted upon for more than a decade and it is only after the respondent No.5 had exhausted most of the land fallen to his share, in terms of the proceedings dated 22.02.1996, the respondent No.5 filed an appeal under Section 5(5) of the Act, 1971 without explaining any reason for the delay and such an appeal is incompetent and the same was rightly dismissed by the 3rd respondent on the ground of limitation as well as on merits but the said order passed by the respondent No.3 was interfered with by the respondent No.2 in an arbitrary manner and without even looking into the issue of limitation though the same was specifically raised by the petitioner herein.
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07. It is also further contended that, having been aggrieved by the Appellate order dated 25.08.2008 passed by the respondent No.3, the appellants therein two different revisions were filed by respondent No.5 and another person by name P.Maniamma, W/o. P.Balram Reddy, but the respondent No.2 instead of deciding both the revision petitions together though the same were arising out of and against the very same common order dated 25.08.2008, decided both the revisions separately and one such revision was allowed by passing the impugned order and whereas the other revision petition filed by another person in Case No.D5/3135/2013 was dismissed by the very same respondent No.2 by an order dated 31.10.2014 on the ground of limitation. He also further contended that the respondent No.5 had accepted the order dated 22.02.1996 issued by the respondent No.4 in part and acted upon and has chosen to question the said proceedings only in respect of the land that had fallen to the share of the petitioner herein which is not permissible under law. Thus, learned counsel for the petitioner placed strong reliance on the ground of limitation as well as on the ground of estoppel.
08. Learned Counsel for the petitioner also placed reliance on Judgments in the case of M.B.Rathnam and Others v. Revenue Divisional Officer, Ranga Reddy District, East Division at 6 MSK, J wp_2714_2014 Hyderabad and Others1, Union of India and Others v. N.Murugesan and Others2, Vallabhdas Pallod (died) and Others v. Nagar Panchayat (Municipal Council), Zaheerabad and Others3.
09. On the other hand, Sri Rajagopallavan Tayi, learned counsel for the respondent No.5 contended that the petitioner is not aware of including the land which is covered by ownership certificate under Section 38E in the joint application submitted before the respondent No.4 and immediately on coming to know that the said land was included and subjected to the proceedings dated 22.02.1996, the respondent No.5 filed an appeal and on dismissal of the same, a revision petition was filed and the same was rightly allowed by the respondent No.2. He also contended that the land acquired by the respondent No.5 by virtue of ownership certificate under Section 38E of Act 1950 is a self-acquired property and as such the question of subjecting the same to the partition does not arise. He also further contended that the transfer of the land acquired under Section 38E is not permissible for a period of 8 years and as such there is no valid transfer of land in favour of the petitioner herein enabling him to seek 1 2003 (1) ALT 688 (D.B.) 2 2002 (2) SCC 25 3 2009 (4) ALD 129 (D.B.) 7 MSK, J wp_2714_2014 mutation of the same in his favour. Thus, he tried to support the impugned order passed by the respondent No.2.
10. This Court carefully considered the arguments advanced on either side and perused the entire material on record.
11. It is not in dispute that the petitioner and respondent No.5 along with others jointly submitted an application for mutation and issuance of pattadar passbooks under the provisions of Act 1971 in the year 1996. Consequent upon the said joint application, the respondent No.4 issued mutation proceedings dated 22.02.1996. Thereby, the subject land was mutated in the name of the petitioner herein in the revenue records, so also, the name of the respondent No.5 was also mutated in the revenue records in respect of the land allotted / fallen to his share in terms of the proceedings dated 22.02.1996. It is only after a lapse of more than 10 years, the respondent No.5 filed an appeal before the 3rd respondent and the said appeal was dismissed by the 3rd respondent by an order dated 25.08.2008 on merits as well as on the ground of delay. The operative portion of the order passed by the respondent No.3 reads as under:
"Perused the record and documents available on file. Perused the written arguments filed by the counsels of the both parties. In this case, the Mandal Revenue Officer, Quthbullapoor Mandal has passed mutation order basing on 8 MSK, J wp_2714_2014 the family partition among the both parties in file No.A/91/96 dated 22.02.1996 in respect of land in Survey Nos.440, 454 and 554 total extent of Ac.12.12gts situated at Bowrampet Village including all other survey numbers of the both parties. The above orders were implemented in the revenue records and the names of the parties are recorded as pattadars and per their family partition and possession in respect of all survey numbers including the subject lands. But, the appellants herein have filed all the present appeals questioning the mutation orders of the respondent in respect of only (3) survey numbers and requested for rectification of the records after a lapse of more than (10) years. Thus, these appeals are not maintainable in respect of limitation aspect."
12. The said appeal was filed by the respondent No.5 herein along with two others. Aggrieved by the said order dated 25.08.2008, the petitioner herein filed a revision petition under Section 9 of the Act,1971 in Case No.D5/3140/2013 and the wife of the 2nd appellant therein filed revision petition in Case No.D5/3135/2013 before the 2nd respondent under Section 9 of the Act, 1971. The petitioner herein contested the said revision petitions. The 2nd respondent taken note of the admitted fact situation about the submission of the joint application by the petitioner and the respondent No.5, but proceeded to decide the validity of the family partition deed relied upon by the parties and on finding that there is no transfer of title in favour of the petitioner herein as per law proceeded to interfere with the order passed by the respondent No.4. The 2nd respondent also found fault with the procedure followed by the respondent No.4 while issuing the 9 MSK, J wp_2714_2014 proceedings dated 22.02.1996 on the ground that the said proceeding was issued even before expiry of 45 days time as required under law. Thus, the 2nd respondent set aside the proceedings dated 22.02.1996 passed by the 4th respondent only to the extent of subject land admeasuring Ac.6.06 guntas and directed the name of the respondent No.5 to be entered in the revenue records in the place of the name of the petitioner herein. The 2nd respondent failed to advert to the serious objection raised by the petitioner about the issue of limitation in filing appeal under Section 5(5) of the Act, 1971.
13. As already noted above, the 3rd respondent herein dismissed the appeal filed by the respondent No.5 and two others on the ground of delay and latches, but surprisingly the 2nd respondent while deciding the revision filed against the said order of respondent No.3 failed to advert to the said aspect, which is a crucial one. On this ground alone, the impugned order is liable to be set aside and remand the matter back for fresh consideration. However, taking into consideration the fact that the very same Officer holding the Office of the 2nd respondent decided the other revision petition bearing Case No.D5/3135/2013 filed against the very same order passed by the 3rd respondent holding that the appeal filed before the 3rd respondent by the respondent No.5 and two others was barred by limitation through 10 MSK, J wp_2714_2014 an order dated 31.10.2014, this Court is not inclined to remand the matter back to the 2nd respondent.
14. In the light of the finding recorded by the 2nd respondent in Case No.D5/3135/2013 dated 31.10.2014 on the aspect of limitation, the same applies even to the impugned order in this Writ Petition. Therefore, the revision petition filed by the respondent No.5 ought to have been dismissed by the respondent No.2 on the ground of limitation / delay.
15. Even otherwise, in the absence of any dispute about submission of a joint application by the petitioner and respondent No.5 seeking for mutation and issuance of pattadar passbooks in respect of various extents of land including the subject land and the knowledge of the respondent No.5 about the proceedings dated 22.02.1996 issued by the respondent No.4 from day-one and also the fact that the respondent No.5 derived the benefit of the said proceedings, the respondent No.2 is not justified in entertaining revision petition to decide the validity of the proceedings dated 22.02.1996 or to look into the procedure that was followed by the respondent No.4 while issuing the said proceedings. When all the parties are before the respondent No.4 who are interested in the land, 11 MSK, J wp_2714_2014 which was the subject matter of enquiry before him and all of them consented for passing an order in a particular fashion, nothing prevents the 4th respondent from passing an order ahead of the time prescribed under the procedure contemplated under law. If any third party is aggrieved by such proceeding, it is always open for them to take all such objections under law but not to the parties who participated in the said proceedings and consented for the same, who are also the beneficiaries of such proceedings. Respondent No.5 herein is one such beneficiary and at his instance the said proceeding dated 22.02.1996 came into existence.
16. Further, whether the land acquired by the respondent No.5 by virtue of ownership certificate issued under Section 38E of the Act, 1950 can be blended into joint family properties of the joint family of the respondent No.5 and the petitioner herein and can be subjected to partition among all the joint family members or not, etc., are all larger issues that can be agitated before the Competent Jurisdictional Civil Court in a properly constituted suit. Under no circumstances, the Revenue Authorities dealing with the entries in the revenue records can be allowed to adjudicate such serious aspects, nor they have any such power or authority especially when serious dispute is raised in that regard.
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17. In the instant case, the respondent No.2 had entered into such arena and recorded his findings which in the considered view of this Court, is not open for the respondent No.2. Even on these aspects also the 2nd respondent while passing orders in Case No.D5/3135/2013 dated 31.10.2014 recorded findings contra to the findings recorded in the impugned order. The respondent No.5 failed to offer any reasonable explanation for not filing appeal against the proceedings dated 22.02.1996 within a reasonable period to convince this Court, except stating that the respondent No.5 noticed that the subject land was included in the joint application only after a decade.
18. The statute provides the remedy of appeal under Section 5(5) of the Act, 1971 subject to the parties complying with the other statutory requirements as provided under the said provision as well as under the rules made thereunder. In terms of the said provision, any person aggrieved by an order passed by the respondent No.4 is entitled to avail the remedy of appeal under Section 5(5) of the Act, 1971 within a period of 60 days from the date of passing of the impugned order.
19. In the instant case, the appeal was filed after a lapse of more than 10 years without even explaining the delay nor seeking 13 MSK, J wp_2714_2014 condonation of delay. In the absence of the same, the respondent No.3 lacks jurisdiction to entertain the appeal and the respondent No.3 rightly declined to exercise his jurisdiction but the same was reversed by the respondent No.2 through the impugned order in an arbitrary manner. The Hon'ble Division Bench of this Court in the case of M.B.Ratnam and Others v. Revenue Divisional Officer, Ranga Reddy District, East Division at Hyderabad and Others (cited supra), held as under:
"....51. The entries in the record of rights are made after holding public enquiries. The entries made in the record of rights carry with them a great evidentiary value, sometimes they constitute the only evidence available in order to establish one's title to the lands. The record of rights is thus prepared, maintained and updated by public servants in discharge of their official duties. It would be impossible to accept that the entries made in the record of rights in the instant case which remained in the record for a period of over 10 years have not been noticed by the respondents until they have preferred the appeals before the appellate authority. The vague explanation offered by the respondents about the entries and the orders passed by the Mandal Revenue Officer, is totally unacceptable.
52. For the aforesaid reasons, we are of the considered opinion that the so-called appeals preferred by the respondents herein ought not to have been entertained by the appellate authority after long lapse of more than 10 years virtually unsettling the settled rights of the parties. The rights accrued in favour of the petitioners cannot be set aside resulting in miscarriage of justice."
20. The said judgment aptly applies to the facts on hand. 14
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21. Further, the Hon'ble Apex Court in the case of Kale and Others v. Deputy Direction of Consolidation and Others4, held as under:
"....24. This Court has also clearly laid down that a family arrangement being binding on the parties to the arrangement clearly operates as an estoppel so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same. We shall deal with this point a little later when we consider the arguments of the respondents on the question of the estoppel. In the light of the decisions indicated above, we shall now try to apply the principles laid down by this Court and the other Courts to the facts of the present case."
....38. Rebutting the arguments of the learned counsel for the appellant, Mr. Sharma for the respondents, contended that no question of estoppel would arise in the instant case inasmuch as if the document was to be compulsorily registrable there can be no estoppel against the statute. In the first place in view of the fact that the family arrangement was oral and the mutation petition was merely filed before the Court of the Assistant Commissioner for information and for mutation in pursuance of the compromise, the document was not required to be registered, therefore, the principle that there is no estoppel against the statute does not apply to the present case. Assuming, however, that the said document was compulsorily registrable the Courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. This principle has been established by several decisions of this Court as also of the Privy Council. In Kanhai Lal v. Brij Lal and Anr.(AIR 1980 PC 70 at Pg.74) the Privy Council applied the principle of estoppel to the facts of the case and observed as follows:-
"Kanhai Lal was a party to that compromise. He was one of those whose claims to the family property, or to shares in it, induced Ram Dei, against her own interests and those of her daughter, Kirpa, and greatly to her own detriment, to alter her position by agreeing to the compromise, and under that 4 AIR 1976 SC 807 15 MSK, J wp_2714_2014 compromise he obtained a substantial benefit, which he has hitherto enjoyed. In their Lordships' opinion he is bound by it, and cannot now claim as a revisioner."
22. In another case, the Hon'ble Apex Court in the case of Union of India and Others v. N.Murugesan and Others (cited supra), held as under:
"APPROBATE AND REPROBATE:
....26. These phrases are borrowed from the Scott's law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally."
23. The law laid down by the Hon'ble Apex Court as above also applies to the facts of the case on hand, as the respondent No.5 availed the benefit of the proceedings dated 22.02.1996 partly and intended to question the same only in respect of the subject lands are 16 MSK, J wp_2714_2014 concerned that to after fully availing the benefit of the said proceedings in respect of other lands fallen to his share under the said proceedings.
24. In the light of the above, the contention of learned counsel for respondent No.5 that the transfer of land within 8 years from the date of issuance of the certificate under Section 38E also does not deserve consideration especially in the context of not placing on record any factual matrix nor any material is placed on record either before statutory authorities or before this Court.
25. In the light of the above, in the considered view of this Court, the impugned order is wholly unsustainable and the same is liable to be quashed.
26. Accordingly, this Writ Petition is allowed and the impugned proceedings is hereby quashed. However, it is open for the respondent No.5 to work-out his remedies as may be available under law to agitate his claim on the subject property if he is so advised in accordance with law. In case, if any such proceedings are initiated, the same shall be decided on their own merits without being influenced by any of the observations made in this order. There shall be no order as to costs. 17
MSK, J wp_2714_2014 As a sequel, Miscellaneous Petitions pending in this Writ Petition if any, shall stand closed.
____________________________________ MUMMINENI SUDHEER KUMAR, J Date: 09-Jun-2023 NSK/KHRM