Andhra HC (Pre-Telangana)
K. Seetharama Reddy And Anr. vs Hassan Ali Khan And Ors. on 28 November, 2002
Equivalent citations: 2003(1)ALD563, 2003(1)ALT276
Author: Ramesh Madhav Bapat
Bench: Ramesh Madhav Bapat
JUDGMENT Ramesh Madhav Bapat, J.
1. This is an appeal by the defendants 1 and 106 arising out of IA No. 926 of 2002 in OS No. 38 of 2002, which is pending on the File of the II Additional District Judge, Ranga Reddy District at NTR Nagar.
2. It appears from the record that the respondents 1 and 2, who were plaintiffs in the suit, had filed the suit for permanent injunction against the defendants-appellants herein and some other respondents herein, which was numbered as OS No. 38 of 2002.
3. The parties to the appeal are described as arrayed in the original suit.
4. During the pendency of the suit, the plaintiffs filed IA No. 926 of 2002 under Order 39 Rules 1 and 2 CPC with a prayer to grant temporary injunction against the defendants 1 and 106 restraining them from alienating the plaint schedule property to the extent of Ac.379-10 guntas situated at Bachepally Village.
5. The second plaintiff in her affidavit stated that the suit schedule properties originally belonged to her father late Mohd. Nawaz Jung, who died several years back, survived by her, the 1st plaintiff and other heirs. After the death of her father, one of her stepbrothers named Mohd. Hashim All Khan filed a suit bearing No. 182/1345 F in the Court of Darul Kaza for partition of the suit schedule properties and other properties. The said suit was re-numbered as OS No. 42 of 1962 on the File of the Senior Civil Judge, City Civil Court, Hyderabad. On 24-11-1970 a preliminary decree was passed for partition of the suit schedule properties. Thereafter the plaintiffs' filed IA No. 854 of 1984 for passing of the final decree in respect of the suit schedule properties and other properties. While so, the plaintiffs and other parties in OS No. 42 of 1962 entered into an agreement of sale on 28-6-1955 with one Kasani Ramulu, who is the father of defendants 106 and 107 for the sale of the suit schedule properties. But subsequently the agreement was given up, as the purchasers did not keep up to the terms of the contract. Therefore, a fresh agreement was entered into between the parties on 4-12-1972 in favour of Kasani Ramulu and also in favour of defendants 26 to 107. The said agreement was also given up, as the purchasers did not keep up the promise. Thereafter defendant No. 106 entered into memorandum of understanding dated 6-9-1995 with her and others as defendant No. 106 is the real beneficiary under the agreement of sale dated 4-12-1972. The said memorandum of understanding was not again kept up by defendant No. 106. Therefore it was also cancelled by a notice dated 3-3-1997 issued to the defendant No. 106 but he did not given any reply. Thus, the memorandum of understanding was also cancelled.
6. The plaintiffs came to know that the defendants 26 to 107 had filed an application for regualarization of the agreement of sale dated 4-12-1972 under Section 5-A of the ROR Act before the Mandal Revenue Officer without notice to the plaintiffs and other parties to the memorandum of understanding dated 4-12-1972. The Mandal Revenue Officer had regularized the said agreement of sale. When the matter came up before the Revenue Divisional Officer, East Division, Hyderabad, the defendants 1 to 107 had entered into a compromise under which the defendants 1 to 25 had taken Ac.80-00 of land and the balance of the land was given to defendants 26 to 107.
7. It was further alleged by the plaintiffs that the defendants 1 to 25 absolutely nothing to do with the suit schedule property and that their claim for cultivation or otherwise is totally unfounded and illegal and that those defendants were not given any possession either by the plaintiffs or any other parties to the suit. Thus, it is stated that the defendants 1 to 107 in collusion between themselves and the Mandal Revenue Officer and the Revenue Divisional Officer have caused the immense loss to the plaintiffs.
8. It is further pleaded by the plaintiffs that the declaration of their rights in the suit schedule property given by the Revenue Divisional Officer under Section 5-A of the ROR Act is totally fraudulent and therefore also she sought for temporary injunction against the 1st defendant, who is a leader of that team representing defendants 2 to 25 and injunction also sought against defendant No. 106, who is a leader of the team of the defendants 26 to 105 and 107 from alienating the suit schedule properties and therefore prayed for ad interim injunction.
9. On appearance the defendants filed their counter-affidavit in the aforesaid IA. In the counter-affidavit they stated that they filed OS No. 137 of 2000 and OS No. 167 of 2000 in the Curt of the I Additional District Judge, Ranga Reddy for declaration of their title and for mutation of their names in the revenue records from the year 1995-96. During the pendency of those suits, they filed an appeal before the Revenue Divisional Officer, East Division, Hyderabad against the order of the Mandal Revenue Officer, Qutubullapur, Qutubullapur Mandal. Due to the intervention of elders and well-wishers, they have compromised the suits as well as the appeal filed before the Revenue Division Officer. It is further pleaded by the defendants that it is not known as to how the plaintiffs were agreed for compromise. The other contentions were raised and ultimately it was prayed by the defendants that the suit as well as the application filed by the plaintiffs for temporary injunction be dismissed.
10. The learned Counsel Mr. V. Venkataramana appearing on behalf of the defendants 1 and 106 appellants herein submitted at the Bar that the enquiry was held by the Revenue Divisional Officer under Section 5-A of A.P. .Rights in Land and Pattadar Pass Book Act, 1971 (for short, "the said Act") who is a statutory authority under the said Act and who had conducted the enquiry and passed an order dated 5-6-1996, regularising an unregistered sale deed in their favour and in favour of other purchasers. The plaintiffs cannot be allowed to attribute motives on the part of the statutory authority and therefore prayed that the injunction application be dismissed.
11. On hearing both sides, the learned Judge framed the issue as under:
Whether the petitioners-plaintiffs are entitled to temporary injunction against the 1st and 106th resopondents-1st and 106th defendants restraining them from alienating the petition schedule lands as prayed for?
12. The learned Counsel Mr. V. Venkataramana invited our attention to Section 5-A of A.P. Rights in Land and Pattadar Pass Books Act, 1971, which reads as under:
"5-A, Regularization of certain alienations or other transfers of lands:--
(1) Notwithstanding anything contained in this Act, the Transfer of Property Act, 1882, the Registration Act, 1908 or any other law for the time being in force, (where a person is an occupant) by virtue of an alienation or transfer made or effected otherwise than by registered document, the alienee or the transferee may, within such period as may be prescribed, apply to the Mandal Revenue Officer for a certificate declaring that such alienation or transfer is valid.
(2) On receipt of such application, the Mandal Revenue Officer shall after making such enquiry as may be prescribed require the alienee or the transferee to deposit in the office of the Mandal Revenue Officer an amount equal to the registration fees and the stamp duty that would have been payable had the alienation or transfer been effected by a registered document in accordance with the provisions of the Registration Act, 1908, as fixed by the Registering Officer on a reference made to him by the Mandal Revenue Officer on the basis of the value of the property arrived at in such manner as may be prescribed:
Provided that the Mandal Revenue Officer shall not require the alienee or the transferee to deposit the amount under this sub-section unless he is satisfied that the alienation or transfer is not in contravention of the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, the Urban Land (Ceiling and Regularization) Act, 1976, the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 and the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977.
(3) Nothing contained in Sub-section (1) and Sub-section (2) shall be deemed to validate any alienation where such alienation is in contravention of the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, the Urban Land (Ceiling and Regulation) Act, 1976, the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 and the Andhra Pradesh Assigned Land (Prohibition of Transfers) Act, 1977.
(4) The Mandal Revenue Officer on deposit of an amount specified in Sub-section (2), shall issue a certificate to the alienee or the transferee declaring that the alienation or transfer is valid from the date of issue of certificate and such certificate shall, notwithstanding anything in the Registration Act, 1908 be evidence of such alienation or transfer as against the alienor or transferor or any person claiming interest under him.
(5) The recording authority, shall on the production of the certificate issued under Sub-section (2) make any entry in the pass book to the effect that the person whose name has been recorded as an occupant is the owner of the property."
And submitted at the Bar that the statute provides for regularization of certain alienations of transfer of property without registration and therefore the action taken by the Revenue Divisional Officer is perfectly legal and therefore the suit itself is not maintainable.
13. The learned Counsel Mr. V. Venkataramana further pointed out the provisions contained in the said Act. Section 5-B of the said Act provides appeal to the appellate authority to the aggrieved party. Section 5-B of the said Act reads as under:
"5-B Appeal :--An appeal shall He against an order passed by the Mandal Revenue Officer under Sub-section (4) of Section 5-A, to the Revenue Divisional Officer within thirty days of the date of communication of the order and the Revenue Divisional Officer shall, after due enquiry pass such order on the appeal as he deems fit, and such order shall, subject to revision under Section 9 be final."
14. The learned Counsel with this provision submitted that if at all they were aggrieved by the order passed by the Mandal Revenue Officer, the plaintiffs were free to file an appeal before the Revenue Divisional Officer.
15. The learned Counsel further invited our attention to Section 9 of the Act. Section speaks about the revisional powers.
16. The learned Counsel further submitted that the order passed by the Revenue Divisional Officer is revisionable by the Collector either suo motu or on application made in this regard. With these legal provisions on record, it was contended by the learned Counsel that there was no justifiable cause for the plaintiffs to file the present suit and the ask for ad interim injunction. The suit itself is not maintainable.
17. The learned Counsel further invited our attention to Section 8 of the said Act, which specifically laid down regarding the bar of the suits. Section 8 of the said Act reads as under:
"8. 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 any 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 rights 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 rights 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."
18. Therefore, the learned Counsel further submitted that the statute itself provides bar to the civil suits and therefore the suit has to be dismissed including the ad interim injunction application.
19. While rebutting the aforesaid arguments, the learned Senior Counsel Mr. Challa Seetharamaiah appearing on behalf of the plaintiffs-respondents herein submitted at the Bar that various agreements entered into between the parties were cancelled. Lastly the memorandum of understanding dated 6-9-1995 was also not acted upon. Therefore, now there is no agreement in existence.
20. The learned Senior Counsel further submitted that the proceedings of the Land Reforms Tribunal directing re-delivery of possession to the share holders by an order dated 23-3-1996.
21. The learned Senior Counsel further pointed out that on 6-6-1996 K. Gnaneswar approached the Mandal Revenue Officer, under Section 5-A of the said Act without notice to Hasan Ali Khan s/o late Mohd. Nawaz Jung and Smt Sharfunnissa Begum, w/o Murthuja Khan, the plaintiffs-respondents herein, for regularisation of the agreement of sale and Mandal Revenue Officer regularised the documents. Section 5-A of the said Act deals with regularization of unregistered documents relating to transfer of property and the agreement of sale are not covered by Section 5-A of the said Act. It was further pointed out that the procedure contemplated under Section 5-A or under Rule 22 of the said Act was not followed and the share holders were not given any notice by the Mandal Revenue Officer before the conclusion of the enquiry under Section 5-A of the said Act. It was further pointed out by the learned Senior Counsel that on 13-2-2002 an appeal was filed by some of the shareholders questioning the order of the Mandal Revenue Officer but subsequently it was compromised in a fraudulent manner without notice to the remaining share holders. The learned Senior Counsel further pointed out that OS No. 38 of 2002 is pending on the File of the II Additional District Judge, Ranga Reddy District for declaration of their right, title and interest in respect of their share to the extent of Ac.76-23 guntas undivided is not affected in any manner by fraudulent proceedings.
22. The learned Senior Counsel Mr. Challa Seetharamaiah further pointed out the provisions contained in Section 5-A of the said Act. It is said that such transaction can be regularised, if the other procedure in typing the sale deed on a proper non-judicial stamp, passing of the entire consideration and transferring the possession is completed except the registration of the documents, but not any other form of an agreement of sale. Only the formalities of registration remains to be completed, such transactions can be regularised under Section 5-A of the said Act. Section 5-A of the said Act is very clear on this point. But in the present case, nothing that sort of transaction was completed between the parties.
23. We have gone through Section 5-A of the said Act carefully and we are of the considered view that an agreement of sale simplicitor is not enough for regularisation of the document under Section 5-A of the said Act.
24. It is further from the record that the plaintiffs share have been divided and they were held to get 76 acres and 23 guntas. The preliminary decree has become final and passing of final decree proceedings is only pending. If injunction is not granted, there will be some more litigation if the defendants sell the properties. Therefore prayed that the present appeal filed by the defendants be dismissed with costs.
25. The learned Counsel Mr. V. Venkataramana appearing on behalf of the defendants-appellants herein submitted at the Bar that the plaintiffs may be having a share in the whole property to the extent of 76 acres 23 guntas, but it is indivisible share. In the final decree proceedings, the properties will be divided by metes and bounds and therefore if the entire property is sold, the prospective purchase gets a title only to the extent of the title, the defendants have in the suit. Thus, the property of the plaintiffs is also sold, the title in the property to the extent of 76 acres 23 guntas goes to the prospective purchaser as one of the co-sharers along with the plaintiffs. The rights of the plaintiffs are not affected in any manner. The entire property will be sold to the third parties recognizing the share of the plaintiffs' property. Therefore, it was prayed that the order passed by the Mandal Revenue Officer regularising the transaction under Section 5-A of the said Act is legal.
26. Considering the arguments and counter arguments, we are of the considered view that it is not in dispute that the plaintiffs are entitled to 76 acres 23 guntas out of the suit schedule property. If the entire property is sold by the defendants, the prospective purchaser will become a co-sharer along with the plaintiffs and that will be an initiation of further litigation between the plaintiffs, defendants and the prospective purchaser. Therefore, we are not inclined to set aside the order impugned in the appeal.
27. As already stated, the final decree proceedings in respect of 76 acres 23 guntas is pending before the Civil Court, it will be in the interests of both the parties to co-operate the Civil Court for passing the final decree.
28. Under the above circumstances, we are not inclined to set aside the order of the Trial Court and thus the appeal filed by the defendants-appellants herein is dismissed, The costs of the appeal will be costs in cause.
29. The findings given by this Court in this judgment will not weigh the mind of the trial Court while deciding the main suit The suit be disposed of as expeditiously as possible, preferably within six months.