Telangana High Court
Dr. Emandla Raja Rao vs The State Of Telangana And 4 Others on 11 September, 2024
HON'BLE SRI JUSTICE C.V. BHASKAR REDDY
I.A.No.1 of 2024
in/and
WRIT PETITION No.26475 of 2022
COMMON ORDER:
The Writ Petition has been filed by the petitioner seeking to issue writ of mandamus declaring the action of the respondent No.3 in registering the cancellation deed dated 10.04.2006 vide document No.8397/2006 executed by respondent Nos.4 and 5 and cancelling the sale deed vide document No.12592/2004 dated 09.12.2004 without issuing any notice, as illegal, arbitrary and violtiave of Rule 26(i)(k)(i) of the Registration Rules, 1908, Section 69 of the Registration Act, 1908 and Section 126 of Transfer of Property Act, 1882 and Articles 21 and 300-A of Constitution of India and consequently, prayed to set aside the same and for other reliefs.
2. The case of the petitioner is that he along with one Mr. Iqbal Ahmed purchased agricultural land admeasuring Ac.1-19 gts out of Ac.3-19 gts forming part of Sy.No.40 situated at Raidurga Nawkhalsa Village, Serilingampally Mandal, Ranga Reddy District, from the respondent Nos.4 and 5 under registered sale deed dated 09.12.2004 vide document No.12592/2004. It is his further case that ever since the date of purchase, he is in possession of the said 2 property. It is further case of the petitioner that with an intention to alienate the property, when he approached the respondent No.3, he was surprised to know that sale deed dated 09.12.2004 vide document No.12592/2004 executed in his favour has been cancelled through cancellation deed dated 10.04.2006 vide document No.8397/2006. It is further case of the petitioner that in view of his occupation in medical profession and old age, he is not in a position to pursue the matter and as such, he executed a Special Power of Attorney to protect his interest. It is also case of the petitioner that respondent Nos.4 and 5 without having any power or authority, executed the cancellation deed dated 10.04.2006 cancelling the registered sale deed dated 09.12.2004 bearing document No.12592/2004 and the respondent No.3 without putting him and other vendee on notice, registered the cancellation deed dated 09.12.2004 contrary to the Rule 26(i)(k)(i) of the Registration Rules, 1908. Hence the writ petition.
3. The respondent Nos.6 and 7 filed I.A.No.2 of 2023 seeking to implead them as party respondents in the writ petition. The said I.A. was allowed by this Court vide order dated 29.09.2023 and the respondent Nos.6 and 7 are impleaded as party respondents to the writ petition.
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4. The respondent Nos.6 and 7 filed counter affidavit denying the right and title of the petitioner and stated that respondent Nos.4 and 5 along with their mother Smt. Aleemunnisa Begum and Habeebullah Khan have sold the total land admeasuring Ac.4-34 gts forming part of Sy.Nos.40, 41, 44 and 46 situated at Raidurga Village, known as "Regul Bowli", now Serilingampally Mandal, under unregistered sale deed dated 20.09.1971 in favour of E.Gandaiah, G.Komraiah and Narsing Rao. The said Sadabainama/unregistered sale deed, was validated by the Mandal Revenue Officer, while exercising powers under Section 5A of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (for short "ROR Act, 1971") and the Rules made thereunder vide proceedings No.C/1309/1990 dated 06.04.1993. Thereafter, the names of subsequent purchasers were recorded in the revenue records and they are in uninterrupted possession of the property. The purchasers i.e, E.Gandaiah and others have alienated part of the land i.e, land admeasuring Ac.1-13 gts in Sy.No.40 to Smt.M.Pichamma and N.Subbayamma under registered sale deed dated 07.09.1995 vide document No.8893/1995 for a valid sale consideration. Further an extent of land forming part of Sy.No.40 admeasuring 462 sq.yards was sold in favour of N.Srinivas and M.Venkaiah under registered sale deed dated 07.09.1995 vide document No.8894/1995. It is their further case that said 4 M.Pichamma and N.Subbayamma who purchased property to an extent of Ac.0-18.5 gts in Sy.No.40 executed sale deed dated 18.10.2000 vide document No.8092/2000 in favour of Samata Jampala and the balance extent of land admeasuring Ac.0.06.5 gts in Sy.No.40 to Dr.Anil K. Jampala under registered sale deed dated 18.10.2000 vide document No.8093/2000. It is their further case that both Samata Jampala and Dr.Anil K.Jampala, who purchased the property under registered document Nos.8093/2000 and 8094/2000 have sold their property in favour of Smt. Neha Agarwal under sale deed dated 13.09.2004 vide document No.9666/2004. It is stated that said Smt.Neha Agarwal has obtained loan from Indian Overseas Bank, Secunderabad, mortgaging the land admeasuring Ac.0.25 gts in Sy.No.40 and as the said borrower (Neha Agarwal) failed to repay the loan amount, the Indian Overseas Bank, had auctioned the land and in the auction, the respondent No.6 has purchased the land admeasuring Ac.0-25 gts in Sy.No.40 of Raidurga Nawkhalsa and a sale certificate was executed in favour of respondent No.6. It is further case of the respondents that out of remaining extent of Ac.1-07 gts, Smt.Subbayamma and N.Pichamma sold an extent of Ac.0.15.98 gts in Sy.No.40 to the respondent No.7 under registered sale deed dated 16.12.2004 vide document No.12726/2004. Similarly, N.Srinivas Rao and M.Venkatesh, sold an extent of 462 sq.yards in 5 Sy.No.40 to respondent No.7 under a registered sale deed dated 18.12.2004 vide document No.12807/2004. It is the specific case of respondent Nos.6 and 7 that they have purchased the property under registered sale deeds and they are in enjoyment of the same.
5. While the matter stood thus, questioning the validation of the Sadabainama/sale deed by the Mandal Revenue Officer, vide proceedings No.C/1309/1990 dated 06.04.1993 in favour of E.Gandaiah and others, the respondent Nos.4 and 5 herein filed an appeal on the file of the Revenue Divisional Officer, vide case No.C/155/2005 and the same was allowed on 20.06.2005. Aggrieved by the same, N. Subbayamma and M.Pichamama, the vendors of the respondent Nos.6 and 7 filed W.P.Nos.16722/2005 and 1114/2006 on the file of this Court and the same were allowed by this Court on 01.09.2006 setting aside the orders dated 20.06.2005 passed by the Revenue Divisional Officer. Challenging the same, the respondent Nos.4 and 5 filed Writ Appeal (SR) Nos.13691/2007 and 13898/2007 on the file of Division Bench of this Court and the same were dismissed as withdrawn vide common order dated 18.03.2008. Thus the case of the respondent Nos.6 and 7 is that the orders validating the Sadabainama has attained the finality in view of the orders dated 01.09.2006 passed by this Court in W.P.Nos.16722/2005 and 1114/2006. It is their 6 case that since the date of purchase of property i.e, in the year 1993 and the subsequent validation of the same, the respondent Nos.6 and 7 and their predecessors-in-interest are in possession and enjoyment of the same and their names were also mutated in the revenue records. It is also their case that they have entered into development agreement with M/s.Sarveshvari Constructions with an intention to develop the property to the extent of Ac.1-19 gts. The developer M/s. Sarveshvari constructions has made an application and the GHMC after verifying all the documents has granted permission No.5754/GHMC/SLP/2023-BP dated 11.05.2023 for construction of residential apartments in the subject lands and other adjacent lands forming part of Sy.Nos.36, 37, 45, 54, 55/1, 56 and 56/2 of Raidurga Nawkhalsa Village. When the construction is in progress, the petitioner represented by his Special Power of Attorney made efforts to interfere and trespass into the subject property, which constrained respondent Nos.6 and 7 herein to lodge a complaint on the file of Raidurgam Police Station and the same was registered as a case in Crime No.468/2023 dated 11.05.2023 for the offences under Sections 447, 506 r/w 34 IPC. Thereafter, the present writ petition has been filed by the petitioner stating that the alleged sale deed dated 09.12.2004 executed in his favour was cancelled through the cancellation deed dated 10.04.2006 vide document No.8397/2004. 7 It is further stated that when the petitioner and his associates made illegal attempt to take forcible possession, the respondent Nos.6 and 7 instituted a suit vide O.S.No.80 of 2023 on the file of VI Additional District Judge, Prashanth Nagar, Ranga Reddy District, Kukatpally, seeking perpetual injunction restraining the petitioner and his power of attorney. The said Court also granted ad interim injunction vide order dated 13.06.2023 in I.A.No.373 of 2023 in O.S.No.80 of 2023 restraining the petitioner and his attorney from interfering with the possession and enjoyment of the respondent Nos.6 and 7 over the land in Sy.No.40. It is the case of the respondents that since the validation of Sadabainama/ordinary sale deed and its confirmation by this Court vide orders in W.P.Nos.16722/2005 and 1114/2006, the petitioner's alleged vendors i.e, respondent Nos.4 and 5 lost their title and interest over the property. It is specific case of the respondent Nos.6 and 7 that as on the date of filing of writ petition i.e, W.P.No.26475/2022, the respondent No.4 died and in proof of the same, the death certificate of respondent No.4 is also filed. It is their further case that even after knowing the fact that the respondent No.4 died on 12.02.2013, the petitioner made him as party respondent to the present writ petition and filed the present writ petition suppressing the material facts. It is specific case of the respondent Nos.6 and 7 that the writ petitioner has filed 8 W.P.No.13712/2023 on the file of this Court stating that the GHMC authorities are not taking any action to stop the illegal and unauthorised constructions being made by M/s.Sarveshvari Constructions in the subject property. The said writ petition was disposed of by this Court vide order 06.06.2023 directing the GHMC authorities to consider the representation submitted by the petitioner, in accordance with law. It is further stated that after lapse of more than 18 years, the petitioner has instituted the present writ petition seeking to set aside the cancellation deed dated 10.04.2006 vide document No.8397/2006 and therefore, the same is liable to be dismissed on the ground of delay and laches.
6. During the pendency of the writ petition, the petitioner filed I.A.No.1 of 2024 seeking to implead the Legal Heirs of respondent Nos.4 and 5 as respondent Nos.8 to 10 in the writ petition.
7. I have carefully considered the submissions of Sri K. Srikanth, learned counsel for the petitioner, learned Government Pleader for Stamps and Registration appearing for the respondent Nos.1 to 3, Sri Dammalapati Srinivas, learned Senior Counsel representing Sri Rohit Pogula, learned counsel for the respondent Nos.6 and 7 and perused the record.
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8. The case of the petitioner is that he is the absolute owner and possessor of the property admeasuring Ac.1-19 gts out of Ac.3- 19 gts in Sy.No.40 situated at Raidurga Nawkhalsa Village, Serilingampally Mandal, Ranga Reddy District, having purchased the same under registered sale deed dated 09.12.2004 vide document No.12592/2004 from the respondent Nos.4 and 5. The grievance of the petitioner is that said sale deed was cancelled unilaterally without issuing any notice to him and the said action on the part of the respondents-registration authorities amounts to violation of the procedure prescribed under Rule 26(i)(k)(i) of Registration Rules, 1908 and therefore, seeks to declare the cancellation deed dated 10.04.2006 as illegal. Admittedly, the alleged sale deed dated 09.12.2004 executed in favour of the petitioner was cancelled vide registered cancellation deed dated 10.04.2006.
9. Rule 26(i)(k)(i) of the-then Andhra Pradesh Registration Rules, 1908 was amended vide Notification No.R.R.1/2006 published in Andhra Pradesh Gazette Extraordinary No.18 dated 29.11.2006. The said Rule 26(i)(k)(i) reads as under:
"26. (i) Every document shall, before acceptance for registration, be examined by the Registering Officer to ensure that all the requirements prescribed in the Act and in these rules have been complied with, for instance:
(a) xxx 10
(b) xxx
(c) xxx
(d) xxx
(e) xxx
(f) xxx
(g) xxx
(h) xxx
(i) xxx
(j) xxx
(k) (i) The registering officer shall ensure at the time of presentation for registration of cancellation deeds of previously registered deed of conveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing mutual consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale;
Provided that the registering officer shall dispense with the execution of cancellation deeds by executant and claimant parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil Judge or a Government Officer competent to execute Government Orders declaring the properties contained in the previously registered conveyance on sale to be Government or Assigned or Endowment lands or properties not registerable by any provision of law
(ii) Save in the manner provided for above no cancellation deed of a previously registered deed of conveyance on sale before him shall be accepted for presentation for registration."
10. The aforesaid amended Rule came into force with effect from 29.11.2006 and it was very much applicable to the registration of cancellation deeds that have taken place even in the State of Telangana till 01.06.2014. The said Rule was substituted by the State of Telangana by issuing G.O.Ms.No.121 Revenue 11 (Registration-I) Department dated 01.06.2016 with effect from 02.06.2014, whereby the following Rule 26(i)(k) was substituted in the place of previous Rule 26 (i)(k)(i) and it reads as follows:
"(k) That the Cancellation Deed of the previously registered deed of conveyance on sale of immovable property is executed by both the executing and the claiming parties thereof unless such Cancellation Deed is executed under the orders of a competent Court or under Rule
243."
11. Rule 26(i)(k)(i) states that the registering officer shall ensure at the time of presentation for registration of cancellation deeds of previously registered deed of conveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing mutual consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale. Whereas Rule 26(i)(k) states that the Cancellation Deed of the previously registered deed of conveyance on sale of immovable property must be executed by both the executing and the claiming parties thereof unless such Cancellation Deed is executed under the orders of a competent Court or under Rule 243. In the instant case, the cancellation deed dated 10.04.2006 vide document No.8397/2006 executed by the respondent Nos.4 and 5 cancelling 12 the sale deed dated 09.12.2004 is much prior to amendment of Rule 26(i)(k)(i). It is settled law that a statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment. Therefore, the said Rule 26(i)(k)(i) would only operate prospectively for the documents which are presented after amendment of the said Rule. Further, the issues raised in this writ petition are no longer res integra.
12. The Full Bench of this Court in Yanala Malleshwari and others vs. Ananthula Sayamma and others 1, while dealing with the issues relating to cancellation deeds/extinguishment deeds nullifying earlier sale deeds, has observed that the disputed facts regarding allegations of fraud, misrepresentation by Vendor and Vendee against each other, cannot be decided without recording evidence and the same cannot be adjudicated under writ jurisdiction and writ petition is not proper remedy to resolve the disputes and relegated the parties therein to approach the competent Civil Court.
13. Following the said principle, when another Writ Petition in the matter of Thota Ganga Laxmi and another v. Government 1 2006 (6) ALT 523 (FB) 13 of Andhra Pradesh and others 2, has been dismissed by another Division Bench of this Court and the same was assailed before the Hon'ble Apex Court, the Hon'ble Apex Court vide its order dated 13.07.2010 while interpreting Rule 26(i)(k)(i) of the Rules, held that it is only when a sale deed is cancelled by a competent court that the cancellation deed can be registered and that too after notice to the parties concerned. The judgments of this Court in Yanala Malleshwari's case (supra) and Thota Ganga Laxmi's case (supra), came to be considered by a Division Bench of the Hon'ble Apex Court in the judgment dated 25.06.2015 passed in Satyapal Anand vs. State of Madhya Pradesh 3. In view of difference of opinion between the two learned Judges of Division Bench of Hon'ble Supreme Court, on the principles enunciated above, vide order dated 25.08.2015, the matter was referred to the Larger Bench. The Larger Bench of the Apex Court vide its order dated 26.10.2016 observed as under:
"31. In our considered view, the decision in the case of Thota Ganga Laxmi (supra) was dealing with an express provision, as applicable to the State of Andhra Pradesh and in particular with regard to the registration of an Extinguishment Deed. In absence of such an express provision, in other State legislations, the Registering Officer would be governed by the provisions in the Act of 1908. Going by the said provisions, there is nothing to indicate that the Registering Officer is 2 2010 Law Suit (SC) 1243 3 2015 Law Suit SC 796 14 required to undertake a quasi judicial enquiry regarding the veracity of the factual position stated in the document presented for registration or its legality, if the tenor of the document suggests that it requires to be registered. The validity of such registered document can, indeed, be put in issue before a Court of competent jurisdiction."
14. Coming to the case on hand, as on the date of execution of the cancellation deed dated 10.04.2006 there are no rules governing the presentation of the document as in the case of Thota Ganga Laxmi's case (supra). Therefore, the decision in Thota Ganga Laxmi's case (supra) is distinguishable from the facts and circumstances of the case on hand.
15. Be that as it may, the case of the respondent Nos.6 and 7 herein is that even as on the date of registration of the cancellation deed dated 10.04.2006 cancelling the sale deed dated 09.12.2004, the respondent Nos.4 and 5 are not the owners of the subject property by virtue of validation of the Sadabainama/ordinary Sale deed by the Mandal Revenue Officer, under the provisions of Records of Rights and Pattedar Pass Books Act, 1971 vide proceedings No.C/1309/1990 dated 06.04.1993. The petitioner's alleged vendors i.e, respondent Nos.4 and 5 having contested the matter questioning the validation of sada sale deed by filing an appeal on the file of Revenue Divisional Officer, in Proceedings No.C/155/2005 have executed alleged sale deed dated 09.12.2004 15 in favour of the petitioner vide document No.12592/2004. After disposal of the appeal on the file of the Revenue Divisional Officer, vide orders in Proc.No.C/155/2005 dated 20.06.2005, the respondent Nos.4 and 5 executed the cancellation deed dated 10.04.2006 vide document No.8397/2006 confirming rights in favour of vendors of respondent Nos.6 and 7. Further, the orders passed in favour of respondent Nos.4 and 5 have been set aside by this Court in W.P.Nos.16722/2005 and 1114/2006 confirming the orders of the regularisation/validation of sada sale deed in favour of vendors of respondent Nos.6 and 7. Challenging the said orders passed in W.P.Nos.16722/2005 and 1114/2006, the respondent Nos.4 and 5 filed Writ Appeal (SR) Nos.13691 and 13898/2007. The said Writ Appeals were withdrawn by the respondent Nos.4 and 5.
16. Thus a careful examination of the above facts would show that initially, the petitioner's vendors i.e, respondent Nos.4 and 5 transferred the title in favour of the vendors of the respondent Nos.6 and 7 by executing Sadabainama, which was validated vide Proceedings No.C/1309/1993 dated 06.04.1993. It is stated that the names of vendors of respondent Nos.6 and 7 were mutated in the revenue records from the year 1993 onwards and the validation orders issued in favour of vendors of respondent Nos.6 and 7 were 16 declared as valid. Having executed Sadabainama in favour of vendors of respondent Nos.6 and 7, which was validated vide Proceedings No.C/1309/1993 dated 06.04.1993, the respondent Nos.4 and 5 to create a right in favour of the petitioner executed sale deed dated 09.12.2004 vide document No.12592/2004 and thereafter, cancelled the same vide cancellation deed dated 10.04.2006. Challenging the cancellation deed dated 10.04.2006, the present writ petition is filed by the petitioner on 21.06.2022. It is stated that as on the date of filing of the writ petition, the respondent Nos.4 and 5 died. Suppressing the fact of death of respondent Nos.4 and 5, the petitioner proceeded with the matter and filed the present writ petition against the dead persons. It is only when the respondent Nos.6 and 7 raised an objection with regard to death of respondent Nos.4 and 5, the petitioner filed implead application vide I.A.No.1 of 2024 on 05.08.2024 seeking to bring the legal heirs of respondent Nos.4 and 5 as respondent Nos.8 to 10. In the said application also, the petitioner has not enclosed necessary documents and did not mention as to when and what date, the respondent Nos.4 and 5 died in order to substantiate his claim. No reasons are forthcoming from the petitioner for not arraying the Legal Heirs of respondent Nos.4 and 5 at the time of filing of the writ petition. After lapse of more than two years from the date of institution of writ petition i.e, on 17 05.08.2024, the petitioner filed said I.A.No.1 of 2024 without enclosing any proof. There is no dispute that Order XXII of CPC is applicable to the writ proceedings and it does not mean that the petitioner can ignore the death of the respondent, if right to pursue remedy even after death of the respondent survives. It is incumbent on the part of the petitioner to substitute the legal heirs of respondent Nos.4 and 5 within a reasonable time. Since the writ petition itself has been instituted against the dead persons, no useful purpose would be served permitting the alleged legal heirs of the dead persons to come on record and contest the writ petition. In view of the above, I.A.No.1 of 2024 is hopelessly barred by limitation and hence, the same is not maintainable and the petitioner is not entitled for grant of any equitable relief.
17. Yet, for another reason also, the relief sought in the present writ petition cannot be granted because much prior to amendment of Rule 26(i)(k)(i) of the Registration Rules, the cancellation deed dated 10.04.2006 vide document No.8397/2006 was executed. In view of disputed questions relating to execution of sale deed dated 09.12.2004 and subsequent cancellation of the same vide cancellation deed dated 10.04.2006 and multiple sale transactions being effected on the subject property and pendency of O.S.No.80 of 2023 on the file of VI Additional District Judge, Prashanth 18 Nagar, Ranga Reddy District, Kukatpally, entertaining the present writ petition at this stage, would cause unnecessary inconvenience to the rights of third parties.
18. Thus a conspectus reading of above facts and circumstances, would make it clear that the petitioner filed the present writ petition against the dead persons; that Rule 26(i)(k)(i) of Registration Rules was amended subsequent to execution of cancellation deed/extinguishment deed; that the sale deed executed by the respondent Nos.4 and 5 (vendors of the petitioner) has already been validated in favour of the vendors of respondent Nos.6 and 7; that the present writ petition has been filed nearly after 18 years of the execution of cancellation deed; that the suit vide O.S.No.80 of 2023 on the file of VI Additional District Judge, Prashanth Nagar, Ranga Reddy District, Kukatpally, filed by the respondent Nos.6 and 7 against the petitioner and his attorney is pending; that valuable rights have already been accrued in favour of third parties in respect of subject property, and as such, setting aside the cancellation deed dated 10.04.2006 vide document No.8397/2006 at this stage, would amount to disturbing the settled position and therefore, this Court is not inclined to grant any relief to the petitioner. Thus the present writ petition is devoid of merits and the same is liable to be dismissed.
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19. Resultantly, both I.A.No.1 of 2024 and the Writ Petition are dismissed.
As a sequel, the miscellaneous petitions pending, if any, shall stand closed. No order as to costs.
_________________________________ JUSTICE C.V.BHASKAR REDDY Date: 11.09.2024 scs