Telangana High Court
Rahat Unnisa Begum, vs The State Of Telangana, on 10 July, 2023
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THE HON'BLE SRI JUSTICE MUMMINENI SUDHEER KUMAR
I.A.Nos.3, 5 AND 6 OF 2022
IN/AND
WRIT PETITION No.7539 OF 2017
ORDER:
This Writ Petition is filed seeking a Writ of Certiorari to call for the records pertaining to the order in case No.D5/390/2015, dated 15.09.2016, passed by respondent No.2 and to quash the same and also sought for consequential direction to respondent Nos.2 to 4 to delete the names of respondent Nos.5 and 6 in the Title Deeds and Pass Books issued in respect of Sy.No.89 to an extent of Acs.11.14 gts., of Gangaram Village, Maheshwaram Mandal, Ranga Reddy District.
2. Though the legal heirs of respondent No.6 have filed an application to implead themselves as respondents and they were impleaded as respondent Nos.8 to 10 and they did not chose to contest the matter and no arguments were advanced on their behalf. Similarly some third parties have filed implead applications in I.A.Nos.3, 5 and 6 of 2022 claiming to be the successors-in-interest of the subject land from respondent Nos.5 and 6. In spite of affording them repeated opportunities on 13.12.2022, 26.12.2022, 28.12.2022, 11.04.2023 and 13.04.2023 they did not chose to pursue their applications, or to contest the main Writ Petition.
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3. However, this Court is not inclined to dismiss their applications for non-prosecution as, from the averments made in support of the said applications, the petitioners therein, prima facie, appears to be the persons claiming through respondent Nos.5 and 6. In view of the same, I.A.Nos.3, 5 and 6 of 2022 are ordered and the petitioners therein shall stand impleaded as respondent Nos.11 to 13 in the main Writ Petition.
4. Heard Sri Vedula Srinivas, learned Senior Counsel for the petitioners, learned Assistant Government Pleader for Revenue for respondent Nos.1 to 4 and Sri D.Jagan Mohan Reddy, learned counsel appearing for respondent No.7.
5. In the normal circumstances, this Court would not have entertained this Writ Petition and would have relegated the petitioners to approach the competent Civil Court to agitate their claim over the subject land, but for the serious allegation of fraud and fabrication of documents in the matter of changing the entries in the Revenue records at the instance of respondent Nos.5 and 6 basing upon an Ownership Certificate claimed to have been issued under Section 38E of the Andhra Pradesh (Telangana Area) Tenancy & Agricultural Lands Act, 1950 (for short 'the Act, 1950'), in favour of the father of respondent Nos.5 and 6 and the said allegation of fabrication of document remained uncontroverted. In other words, the ingenuinity of the said Ownership Certificate is tacitly admitted and a copy of the 3 said Ownership Certificate is also failed to be produced before this Court.
6. Sri Vedula Srinivas, learned Senior Counsel contended that the land admeasuring Acs.11.14 gts., situated in Sy.No.89 of Gangaram Village, was originally stood patta in the name of one Mr. Mohammed Riyasat Ali Khan and the same is evident from the Khasra Pahani of the year 1954-55. On the demise of the said Mr. Mohammed Riyasat Ali Khan in the year 1992, the petitioners herein succeeded to the said extent of land and the name of petitioner No.1 herein, who is the wife of Mr. Mohammed Riyasat Ali Khan, was entered in the Revenue records as pattadar and possessor and the same continued till the year 2006-07. However, the name of petitioner No.1 was deleted from the Revenue records and the names of respondent Nos.5 and 6 were entered fraudulently without putting the petitioners on notice by the Revenue Authorities behind the back of the petitioners basing upon an alleged Ownership Certificate said to have been issued in the name of the father of respondent Nos.5 and 6 under Section 38E of the Act, 1950, though there was no such Ownership Certificate, dated 24.07.1975, ever issued in respect of the subject land. In support of his contention, learned Senior Counsel placed a strong reliance on a Memo issued by the office of the Revenue Divisional Officer, Ranga Reddy District East Division, bearing Lr. No.K/22/2008, dated 31.01.2007, wherein in response to a request 4 made by the General Power of Attorney holder of the petitioners, it was stated that on verification of the connected file bearing No.B/398/LRE75 it is found that no 38E certificate was granted in respect of Sy.Nos.83, 88 and 89 of Gangaram Village, Maheshwaram Mandal to anybody. He also placed strong reliance on the copy of the Pahanies for the year 2006-07 contending that the name of petitioner No.1 was continuing in the Revenue records as pattadar and possessor till the year 2007. Thus, learned Senior Counsel contended that the names of respondent Nos.5 and 6 were entered in the Revenue records by playing fraud on the petitioners and by placing reliance on a fabricated Ownership Certificate and as such, the entries that were made in favour of respondent Nos.5 and 6 and all other consequential entries made thereafter are all liable to be declared as nonest in the eye of law and void. He further submitted that, respondent No.2 while considering the Revision Petition filed by the petitioners committed a grave error in not going into the aspect of genuineness of the Ownership Certificates setup by respondent Nos.5 and 6 and erroneously dismissed the Revision Petition on the ground of delay and also on the ground that the previous Revision Petition filed by the petitioners was closed by the very same Authority. He further contended that respondent No.2 erroneously came to the conclusion that the petitioners herein have not produced any evidence to show that they are the legal representatives of the deceased Mr. Mohammed 5 Riyasat Ali Khan, and also on the ground that the death certificate of the said Mr. Mohammed Riyasat Ali Khan is not produced. He further contended that the petitioners have approached the Competent Civil Court and got their status being legal representatives of deceased Mr. Mohammed Riyasat Ali Khan was declared. Thus, he contended that respondent No.2, instead of going into the core issue of genuineness/existence or otherwise of the Ownership Certificate setup by respondent Nos.5 and 6, has taken up trivial issues and rejected the Revision Petition filed by the petitioners. He also placed a strong reliance on the Judgment of the Hon'ble Apex Court in the case of Meghmala and Ors. v. G. Narasimha Reddy and Ors.1
7. On the other hand, Sri D.Jagan Mohan Reddy, learned counsel appearing for respondent No.7, contended that respondent No.6 after having got the land under the Ownership Certificate, dated 24.07.1975 sold the subject property to third parties under registered Sale Deed, dated 05.03.2001 vide document No.655 of 2001 and subsequently the same had changed various hands and ultimately respondent No.7 herein along with two others purchased an extent of Acs.5.07 gts., in Sy.No.89 under registered Sale Deeds, dated 28.11.2005 and 03.12.2005 vide documents Nos.7375 of 2005 and 7656 of 2005 respectively. Further, he also seriously disputed the General Power Attorney's said to have been executed by the petitioners herein on the 1 (2010) 8 SCC 383 6 ground that the executants of different General Power of Attorney's claim themselves as absolute owners independently and the executants of the General Power of Attorney's were shown as residents of United States of America, Canada and also disputed the genuineness of the said General Power of Attorney's on the ground that they were not notarized before the Embassy of India in the concerned country and also on the ground that they were not duly notarized in the country in which they were shown to have been executed. He has also drawn the attention of this Court to the mutation proceedings issued in proceedings No.D/482/2006, dated 24.06.2006, mutating the land in Sy.No.89/AA in favour of respondent No.7 and two others to an extent of Acs.2.00 gts.
8. This Court has carefully considered the arguments advanced by learned counsel on either side and perused the entire material on record.
9. From the pleadings on record and from the arguments advanced on behalf of the petitioners by learned Senior Counsel, it is evident that the main contention of the petitioners is that there is no Ownership Certificate issued under Section 38E of the Act, 1950 in respect of the land situated in Sy.No.89 of Gangaram Village at any point of time, but, by fabricating the Ownership Certificate, respondent Nos.5 and 6 got their names entered in the Revenue records in respect of the subject land basing on the said fabricated certificate. In spite of 7 raising such a serious allegation of fraud and fabrication, a copy of the said Ownership Certificate, dated 24.07.1975 is not produced before this Court for consideration of the same by this Court. From the Memo, dated 31.01.2007, issued by the Revenue Divisional Officer concerned, it is evident that on verification of the relevant file, no Ownership Certificate under Section 38E of the Act, 1950, was issued in favour of any person in respect of the land in Sy.No.89. The said Memo is neither disputed seriously by any of the contesting respondents nor they produced a copy of the so-called Ownership Certificate before this Court. In spite of this Court asking learned counsel for respondent No.7 to produce the said certificate the learned counsel expressed inability to produce such certificate.
10. Though Sri D.Jagan Mohan Reddy, learned counsel appearing for respondent No.7 raised a doubt about the genuineness of the General Power of Attorney's executed by the petitioners herein in favour of the deponent of the affidavit filed in support of the Writ Petition, after the learned Senior Counsel for the petitioners clarified about the execution of the said General Power of Attorney's in the respective countries and the attestation made by the concerned Embassy of India and the notary public, he did not further persuade this Court to go into that aspect.
11. Admittedly, the names of respondent Nos.5 and 6 were entered in the Revenue records by deleting the name of Mr. Mohammed 8 Riyasat Ali Khan or the name of petitioner No.1 herein in respect of the subject land basing upon the Ownership Certificate, dated 24.07.1975. It is not clear when exactly the names of respondent Nos.5 and 6 were entered in the Revenue records. From the Pahani of the year 2006-07 which is placed on record, it is noticed that the name of petitioner No.1 was shown as pattadar and possessor in respect of the land admeasuring Acs.10.14 gts., in Sy.No.89. If the Ownership Certificate, dated 24.07.1975 is a genuine document the name of petitioner No.1 could not have been entered in the Revenue records as pattadar and possessor in the year 2006-07. The said Pahani placed on record by the petitioners is also not disputed by any of the contesting respondents.
12. In the light of the above discussion this Court is left with no other option except to accept the contention of the learned Senior Counsel for the petitioners that the Ownership Certificate setup by respondent Nos.5 and 6 is not a genuine document, especially in the context of the failure of the respondents to produce at least a copy of the so-called Ownership Certificate, dated 24.07.1975, before this Court.
13. Further from the counter affidavit filed by respondent No.6 before respondent No.2, it is noticed that the said Ownership Certificate was stated to have been issued by the concerned Mandal 9 Revenue Officer of Maheshwaram Mandal, Ranga Reddy District. The relevant portion of the said counter affidavit reads as under:-
"Subsequently, the father of the respondents came on record as Tenant of the suit schedule property. Subsequently, in the year 1975, the concerned M.R.O of Maheswaram Mandal, R.R.District, issued Certificate of Ownership under Section 38E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, in respect of the suit schedule property, in favour of the father of the respondents, dated 24.07.1975, since then the father of the respondents was the absolute owner of the suit schedule property by virtue of Certificate of Ownership, under Section 38E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, issued by the concerned authority."
From the above, it is evident that it is the stand of respondent No.6 herein that the Ownership Certificate under Section 38E of the Act, 1950 was issued by the Mandal Revenue Officer of Maheshwaram Mandal on 24.07.1975, by which date the Mandals were not even existing. The system of bifurcating the District into various Mandals in the place of the then existing Talukas came into existence only after the year 1983. Hence, the question of Mandal Revenue Officer of Maheshwaram Mandal issuing an Ownership Certificate in the year 1975 i.e., much prior to the date of formation of Maheshwaram Mandal does not arise. Even otherwise, in terms of the provisions contained in the Act, 1950, it is only the Revenue Divisional Officer of the concerned Revenue Division who is empowered and competent to issue the Ownership Certificate under Section 38E of the Act, 1950. The Mandal Revenue Officer or the Tahsildar is not the competent Authority to issue any such Ownership Certificate. Perhaps, that is the reason why the respondents failed to produce a copy of the so-called 10 Ownership Certificate before this Court, realizing that the act of fabrication would come to light.
14. Then coming to the impugned order passed by respondent No.2, this Court has no hesitation to hold that respondent No.2 failed to exercise the jurisdiction conferred upon him under Section 9 of the Act, 1971. When a serious allegation of fraud and fabrication of documents is alleged resulting in amendment of the entries in the Revenue records, respondent No.2 ought have, prima facie, examined the said allegation and at least ought have directed respondent Nos.5 and 6 to produce a copy of such Ownership Certificate. But respondent No.2 failed to undertake such basic exercise and instead proceeded on the footing that the said Ownership Certificate was issued on 24.07.1975 and the petitioners filed Revision Petition after a lapse of sixty years. Once it is alleged that the said Ownership Certificate, dated 24.07.1975 is a fabricated document, there is no justification for respondent No.2 to take the date of that certificate as genuine date and count the period of limitation, especially in the absence of producing even a copy of such Ownership Certificate.
15. In the light of the conclusion already arrived at by this Court about the ingenuinity of the Ownership Certificate in question it is not known when exactly the said Ownership Certificate was brought into existence and when the entries in the Revenue records were altered. Respondent No.2 ought have undertaken such an exercise to ascertain 11 the genuineness of the said Ownership Certificate in question. Therefore, the ground of limitation on which the impugned order is passed rejecting the Revision filed by the petitioners is totally erroneous and a result of non application of mind besides being perverse.
16. The other grounds of not establishing the relationship of the petitioners with the original pattadar Mr. Mohammed Riyasat Alikhan and non production of the death certificate of the original pattadar etc., are all concerned, the relevant documents i.e., the decree passed by the competent Civil Court in O.S.No.61 of 2007 on the file of the Court of the Junior Civil Judge, Ibrahimpatnam, Ranga Reddy District, dated 04.04.2007, is already placed before this Court and a copy of the death certificate is also placed on record. The General Power of Attorney's that were relied upon by the petitioners are all registered documents, dated 21.02.2006 and 05.06.2006 and 10.06.1994. Therefore, it is not open for the contesting respondents to dispute the genuineness of the said General Power of Attorney's. Perhaps, it is only on realizing that their claim basing upon the so-called Ownership Certificate cannot be sustained nor supported, respondent No.7 appears to have taken technical objections to non suit the petitioners from pursuing the present Writ Petition.
17. This Court having taken note of the fraud resulting in changing the entries in the Revenue records in respect of the land 12 admeasuring Acs.10.14 gts., in Sy.No.89 of Gangaram Village, is of the firm view that it is the duty of this Court while exercising its jurisdiction under Article 226 of the Constitution of India to set right the things in order and avoid all actions resulting in from such fraud.
18. It is settled law that mere entries in the Revenue records neither confer title nor take away the title of any person. It is also settled law that a person by executing a registered conveyance deed cannot convey a better title than what he possess. In the light of the conclusion arrived at by this Court that the Ownership Certificate, dated 24.07.1975, is not a genuine document and the change of entries basing upon such Ownership Certificate are all void and nonest in the eye of law.
19. The view of this Court is also supported by the Judgment of the Hon'ble Apex Court in Meghmala's case (1 supra), wherein the Hon'ble Apex Court held as under:-
"It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent Authority, such order cannot be sustained in the eye of law. 'Fraud avoids all judicial acts, ecclesiastical or temporal.' (Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. & Ors.2) In Lazarus Estate Ltd. v. Besalay3, the Court observed without equivocation that 'no judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.' In Andhra Pradesh State Financial Corporation v. M/s. GAR Re-Rolling Mills & Anr.4 and State of Maharashtra & Ors. v. Prabhu5, this Court observed that a writ Court, while exercising its 2 AIR 1994 SC 853 3 (1956) 1 All ER 341 (CA) 4 AIR 1994 SC 2151 5 (1994) 2 SCC 481 13 equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the courts are obliged to do justice by promotion of good faith.
'Equity is always known to defend the law from the crafty evasions and subtleties invented to evade law.' In Smt. Shrisht Dhawan v. M/s. Shaw Brothers6 it has been held as under:
'Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct.' In United India Insurance Co. Ltd. v. Rajendra Singh & Ors.7 this Court observed that 'Fraud and justice never dwell together' (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.
The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud. (See District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram & Anr. v. M. Tripura Sundari Devi8 , Union of India & Ors. v. M. Bhaskaran9, Vice Chairman, Kendriya Vidyalaya Sangathan & Anr. v. Girdharilal Yadav10, State of Maharashtra v. Ravi Prakash Babulalsing Parmar11, Himadri Chemicals Industries Ltd. v. Coal Tar Refining Company12 and Mohammed Ibrahim & Ors. v. State of Bihar & Anr.13.
Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression 'fraud' involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. (Vide Dr. Vimla v. Delhi Administration14, Indian Bank v. Satyam Fibres (India) Pvt. Ltd.15, State of Andhra Pradesh v. T. Suryachandra Rao16, K.D. Sharma v. Steel Authority of India Ltd. & Ors.17 and Regional Manager, Central Bank of India v. Madhulika Guruprasad Dahir & Ors.18 An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in 6 AIR 1992 SC 1555 7 AIR 2000 SC 1165 8 1990 (3) SCC 655 9 1995 Supp (4) SCC 100 10 2004 (6) SCC 325 11 2007 (1) SCC 80 12 AIR 2007 SC 2798 13 (2009) 8 SCC 751 14 AIR 1963 SC 1572 15 (1996) 5 SCC 550 16 AIR 2005 SC 3110 17 (2008) 12 SCC 481 18 (2008) 13 SCC 170 14 relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Changalvaraya Naidu (2 supra); Gowrishankar & Anr. v. Joshi Amba Shankar Family Trust & Ors.19, Ram Chandra Singh v. Savitri Devi & Ors.20, Roshan Deen v.
Preeti Lal21, Ram Preeti Yadav v. U.P. Board of High School & Intermediate Education22, and Ashok Leyland Ltd. v. State of Tamil Nadu & Anr.23 In Kinch v. Walcott24, it has been held that:-
'... mere constructive fraud is not, at all events after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury.' Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury.
From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est."
20. In the light of the above Judgment of the Hon'ble Apex Court, yet another reason given by respondent No.2 for refusing to entertain the Revision Petition through the impugned order stating that the earlier Revision Petition filed by the petitioners was closed also does not stand, to legal scrutiny. 19 AIR 1996 SC 2202 20 (2003) 8 SCC 319 21 AIR 2002 SC 33 22 AIR 2003 SC 4268 23 AIR 2004 SC 2836 24 1929 AC 482 15
21. As respondent Nos.11 to 13 are also stand in the same lines as that of respondent No.7, and claiming through the very same Ownership Certificate, this Court is of the considered view that all the conclusions arrived at while considering the case of respondent No.7 would equally applies to the case of respondent Nos.8 to 11.
22. In the light of the above, the impugned order dated 15.09.2016 is quashed declaring that the entries that were made in the Revenue records basing upon the Ownership Certificate, dated 24.07.1975, entering the names of respondent Nos.5 and 6 and all other subsequent change of entries in the Revenue records in respect of the subject land admeasuring Acs.10.14 gts., in Sy.No.89 of Gangaram Village, Maheshwaram Mandal, Ranga Reddy District, are declared as illegal and consequentially respondent Nos.1 to 4 are directed to take immediate steps for restoration of entries in the Revenue records as were existing prior to entering the names of respondent Nos.5 and 6 and consider the claim of the petitioners for mutation of their names in the Revenue records being the successors-in-interest of Mr. Mohammed Riyasat Ali Khan by following due process of law. 16
23. The entire exercise as directed above shall be completed by respondent Nos.1 to 4 within a period of three (03) months from the date of receipt of a copy of this order.
24. Accordingly, the Writ Petition is allowed. No costs.
As a sequel, miscellaneous petitions, pending if any in this Writ Petition, shall stand closed.
___________________________________ MUMMINENI SUDHEER KUMAR, J Date: 10.07.2023 NDS 17 THE HON'BLE SRI JUSTICE MUMMINENI SUDHEER KUMAR I.A.Nos.3, 5 AND 6 OF 2022 IN/AND WRIT PETITION No.7539 OF 2017 Date: 10.07.2023 NDS