Andhra Pradesh High Court - Amravati
Pratap C. Josisher, vs The District Collector, on 24 March, 2025
APHC010137012008
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3506]
(Special Original Jurisdiction)
MONDAY, THE TWENTY FOURTH DAY OF MARCH
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
WRIT PETITION NO: 21407/2008
Between:
Pratap C. Josisher, and Others ...PETITIONER(S)
AND
The District Collector and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. D S SIVADARSHAN
Counsel for the Respondent(S):
1. VALLURU CHETAN SUSHEEL
2. A JAGAN
3. GP FOR REVENUE
4. T NAGARJUNA REDDY
The Court made the following:
2
CGR, J.
W.P. No.21407 of 2008
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
Writ Petition No.21407 of 2008
ORDER:
The present writ petition is filed questioning the action of 2nd respondent - Revenue Divisional Officer, Penukonda, Anantapur District, in holding enquiry to decide the possession and title of the lands belonging to the petitioner purportedly exercising powers and jurisdiction under Section 5(5) of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (for short, "the Act"), vide proceedings in Rc. No.CCH/1743/2007, despite the judgment, dated 30.09.2002 in O.S. No.7 of 1996 on the file of the learned Senior Civil Judge, Penukonda, confirmed by judgment, dated 22.02.2006 in A.S. No.1 of 2003 on the file of the learned Additional District Judge, Hindupur, and further confirmed by judgment, dated 20.11.2006, in Second Appeal No.822 of 2006 of this Court, as illegal, incompetent and without jurisdiction and consequently, sought to quash the said proceedings, which were initiated at the instance of the 4th respondent.
2. (a) Petitioner claims to be absolute owner and to be in peaceful possession and enjoyment of an extent of Ac.1847.67 cents in Survey Nos.80-1, 81, 93, 65, 83, 73-2, 97, 94, 67 and 99 of 3 CGR, J.
W.P. No.21407 of 2008Gudipalli village and Survey No.733-2 of Somandepalli Village and Somandepalli Mandal, Anantapur District. 4th respondent and his farther filed O.S.No.7 of 1996 on the file of the learned Senior Civil Judge, Penukonda, seeking perpetual injunction restraining the petitioner and others from interfering in any manner with the management, administration and possession of the factory viz., Bhanusali Sissal Fibre Industry and Plantations and properties mentioned therein which include those referred above. Petitioner being 1st defendant therein denied the title and possession of the plaintiffs and on contest, the said Suit was dismissed vide judgment, dated 30.09.2002. The learned trial Court has categorically recorded finding that the plaintiffs were not in possession and enjoyment of the plaint schedule property and on the other hand based on the admission of PW.1, none other than the father of the 4th respondent herein, Court found that the defendants were in possession and enjoyment of the plaint schedule property. Pending Suit, 1st plaintiff, father of 4th respondent herein, died. Respondents 5 to 8 herein came on record as plaintiff's legal heirs. Aggrieved by the dismissal of the Suit, they preferred A.S. No.1 of 2003 on the file of the learned Additional District Judge, Hindupur, which eventually got dismissed by judgment, dated 22.02.2006, confirming the 4 CGR, J.
W.P. No.21407 of 2008findings rendered by the learned trial Court and in particular that plaintiffs therein were not in possession of the plaint schedule property. Matter was carried in second appeal before this Court in S.A. No.822 of 2006 and the same was also dismissed, vide judgment, dated 20.11.2006, by observing that in case if the appellants felt that possession of respondents therein was illegal, liberty was granted to file a Suit for recovery of possession of the plaint schedule property. Taking clue from such observation, respondents 4 to 8 filed O.S. No.19 of 2007 on the file the learned Additional District Judge, Hindupur, for declaration of title to suit schedule property and for grant of consequential injunction restraining the defendants therein from interfering with the peaceful possession and enjoyment of the plaint schedule property and/or alternatively in the event, learned Court comes to conclusion that defendants were in possession of the plaint schedule property, sought for delivery of the same. That being so, petitioner sought for amendment of revenue records based on the judgments in O.S. No.7 of 1996; A.S. No.1 of 2003 and S.A. No.822 of 2006 for inclusion of his name and deletion of name of 4th respondent and his father.
5
CGR, J.
W.P. No.21407 of 2008
(b) The 3rd respondent - Mandal Revenue Officer, Somandepalli, after conducting enquiry as required under Section 5(1) to 5(3) of the Act and Rule 18 of the Andhra Pradesh Rights in Land and Pattadar Pass Books Rules, 1989 (for short, "the Rules"), ordered amendment in record of rights incorporating the name of petitioner in place of father of 4th respondent viz., Jethalal Haridas Joisher. The Adangal issued for Fasli 1416 i.e. for the year 2006 reflects the amendment and whereas the Adangals for the period prior to i.e. Faslis 1415, 1414, 1406 and 1405 corresponding to the years 2005, 2004, 1996 and 1995 earlier reflected the name of aforesaid Jethalal Haridas Joisher. Aggrieved by the orders of 3rd respondent Mandal Revenue Officer amending entries in record of rights, 4th respondent preferred appeal under Section 5(5) of the Act r/w. Rule 21 of the Rules before the 2nd respondent Revenue Divisional Officer. The appeal was taken on file as Rc. No.CCH/ 1743/2007 and the 2nd respondent while issuing notice to the petitioner herein passed ex parte interim order, dated 01.11.2007, suspending the entries/amendments made in the Adangal. In pursuance to the said interim order, the 3rd respondent rounded of the name of the petitioner in the Adangal for Fasli 1416 reflecting under Column No.12 as pattadar and Columns 14 and 15 as 6 CGR, J.
W.P. No.21407 of 2008possessor and restored the name of father of 4th respondent herein as pattadar and 4th respondent as possessor. The petitioner has immediately filed counter on 15.03.2008 and also memo on 24.05.2008 requesting to drop the proceedings as being infructuous in view of pendency of O.S. No.19 of 2007 on the file of the learned Additional District Judge, Hindupur. In spite of such plea that in view of the judgments which rendered categorical findings regarding possession of petitioner, besides respondents 4 to 8 themselves filing Suit in O.S. No.19 of 2007, by which, they sought for declaration of title and delivery of possession, the 2nd respondent clearly lacking jurisdiction in entertaining the appeal, issued notice dated 21.06.2008 calling upon the petitioner to attend hearing scheduled on 05.07.2008. Therefore, aggrieved by the very entertaining of appeal by 2nd respondent against the orders of 3rd respondent Mandal Revenue Officer amending entries in record of rights to be clearly being beyond his jurisdiction, the present writ petition is preferred.
3. This Court while issuing notice before admission on 29.09.2008 passed the following order:
"Notice before admission.
Petitioner is also permitted to take out notice on the unofficial respondents and file proof of service into Court.7
CGR, J.W.P. No.21407 of 2008
Govt. Pleader for Revenue takes notice for respondents 1 to 3 and seeks time to file counter.
Post after three weeks."
4. On 13.10.2008 the following order was passed:
"At the request of learned Asst. Govt. Pleader, post on 15.10.2008 for filing counter. The status quo order earlier granted shall continue till then."
5. On 22.10.2008 the following order was passed in WPMP No.27980 of 2008:
"No instructions reported by the Government Pleader. Notice sent by the petitioner is not served because respondents 4 to 8 left the village. In the circumstances, status quo order granted earlier by this Court on 13.10.2008 shall continue until further orders."
6. Two separate counter-affidavits of respondents 1 to 3 and 4 to 8, are filed. In both counter-affidavits, it is stated that as against the order passed by the 3rd respondent Mandal Revenue Officer under Section 5(3) amending the entries in revenue records, in as much as appeal leis to 2nd respondent Revenue Divisional Officer under Section 5(5) of the Act, appeal filed by 4th respondent was entertained and the matter was at the preliminary stage of enquiry, therefore, the writ petition itself was premature and not maintainable. It is stated that what all the 2nd respondent did was only entertained the appeal and called upon both the parties to place the relevant documentary evidence for deciding the matter on 8 CGR, J.
W.P. No.21407 of 2008merits. It is also stated that no decision has been rendered on merits of the matter as to whether the order passed by the 3rd respondent ordering amendment of entries based on material before him was legal and valid and the petitioner having filed counter on merits submitting to the jurisdiction of the 2nd respondent is precluded from raising objection on the jurisdictional aspect and at any rate, even such objection of jurisdiction can always be canvassed and will be decided by the appellate authority itself. When statute provided for a remedy of appeal before 2nd respondent against any of the orders passed by 3rd respondent, respondents 4 to 8 herein cannot be deprived of statutory right of appeal depriving their legal remedy. Respondents 4 to 8 have also pleaded in the counter-affidavit that writ petitioner has no right to the property, in support of such right, no documents have been pleaded or exhibited before the authorities below and all through name of Jethalal Haridas Joisher was recorded and mutated in the revenue records as pattadar and possessor, the same came to be amended by the Tahsildar only in the year 1996 by entertaining the application of writ petitioner, based on erroneous appreciation and understanding of the claim of the writ petitioner. These respondents have also raised various other factual aspects to buttress that petitioner's name was 9 CGR, J.
W.P. No.21407 of 2008never reflected in any of the revenue records and since the date of purchase in the year 1949 all through name of Jethalal Haridas Joisher was reflecting in the revenue records. In view of the aforesaid pleadings, they prayed to dismiss the writ petition.
7. Petitioner filed Memo., dated 03.12.2024, to bring on record the subsequent material developments happened after filing the writ petition such as the outcome in O.S.No.19 of 2007 and further appeal being preferred against the same. Petitioner has placed on record copies of judgment in O.S. No.19 of 2007, dated 29.03.2022; orders in I.A.No.2 of 2024 in A.S. No.101 of 2022, dated 02.05.2022 and 22.04.2024; and order in W.P. No.22454 of 2022, dated 27.07.2022. By referring to aforesaid documents, it is stated that Suit filed by respondents 4 to 8 herein has been decreed declaring their right and title to the subject property, however, as the plaintiffs were not in possession of the plaint schedule property, relief of permanent injunction was refused and the defendants therein were directed to deliver the plaint schedule property within a month and failing which plaintiffs were granted liberty to proceed in accordance with law. This judgment was assailed by the petitioner and others in A.S. No.101 of 2022 before this Court and by way of interim order, dated 02.05.2022, respondents 4 to 8 herein, who are respondents 10 CGR, J.
W.P. No.21407 of 2008therein as well, undertook not to take any steps for execution of the decree under appeal and the said interim order has been subsequently extended from time to time, therefore, even as per the aforesaid subsequent developments, the petitioner is found to be in possession of the subject property, but not respondents 4 to 8, therefore, in view of the declaration made by the competent civil Court, which is under appeal before this Court, the 2nd respondent cannot entertain the appeal under Section 5(5) of the Act and sit in appeal over the decree and judgment passed by the competent civil Court, therefore, clearly lack jurisdiction.
8. Heard Sri Avinash Desai, learned senior counsel, appearing for Sri D.S. Sivadarshan, learned counsel for the petitioner; learned Assistant Government Pleader for Revenue appearing for respondents 1 to 3; Sri P.Sri Raghuram, learned senior counsel, assisted by Sri Pathanjali P., Sri Valluru Chetan Susheel and Sri M.R.K. Chakravarthy, learned counsel, for unofficial respondents.
9. Sri Avinash Desai, learned senior counsel, appearing for the petitioner, contends that 2nd respondent lacks jurisdiction to entertain the appeal against the orders passed by 3rd respondent in as much as 3rd respondent Mandal Revenue Officer merely followed 11 CGR, J.
W.P. No.21407 of 2008and implemented the decree and judgment rendered by competent civil Court in O.S. No.7 of 1996 as confirmed by the appellate Court in A.S. No.1 of 2003 and further by this Court in Second Appeal No.822 of 2006. The amendment of entries in revenue records was clearly in pursuance to the decree passed by the competent civil Court, which categorically recorded a finding to the effect that respondents 4 to 8 were not in possession of subject property and rather the petitioner was in possession, therefore, rightly 3rd respondent Mandal Revenue Officer has made necessary amendments to the entries in the revenue records and such amendments could not be further enquired into to be illegal or invalid by the appellate authority in the teeth of orders passed by the competent civil Court, therefore, the 2nd respondent should have rejected the appeal at the threshold rather committed serious jurisdictional error in entertaining the same and passing an ex parte interim order suspending the amendments made to the entries in the revenue records. In order to buttress the aforesaid argument regarding the findings recorded by the competent civil Court, he has referred the relevant findings recorded by the learned trial Court in O.S. No.7 of 1996 and as well as the appellate Court in A.S. No.1 of 2003. By referring to the judgment passed in Second Appeal 12 CGR, J.
W.P. No.21407 of 2008No.822 of 2006, he contends that the appellants therein i.e., respondents 4 to 8 herein were granted liberty to file Suit for recovery of possession of subject property and taking benefit of the same, they filed O.S. No.19 of 2007 for declaration of title and permanent injunction with alternative prayer of recovery of possession. Even in the said Suit though the learned trial Court declared title to the subject property in favour of respondents 4 to 8 herein, in so far as possession was concerned, by following the judgment and decree rendered in O.S. No.7 of 1996 and as confirmed by the first appellate Court in A.S. No.1 of 2003 and the second appellate Court in S.A. No.822 of 2006, while rejecting the relief of grant of permanent injunction having found that the petitioner herein/defendants in the Suit, were in possession of the same, only granted alternative relief of delivery of possession to the plaintiffs, meaning thereby even as on that day, the petitioner continued to be in possession of the subject property. That the petitioner has preferred A.S. No.101 of 2022 before this Court in which the respondents 4 to 8 herein have undertaken not to take any steps for execution of the aforesaid decree as per interim order, dated 02.05.2022 in I.A.No.2 of 2022. Further, he also referred to the interim order passed in W.P. No.22454 of 2022 wherein this 13 CGR, J.
W.P. No.21407 of 2008Court directed the respondents to maintain status quo with regard to records and this order is being extended from time to time. In view of these subsequent developments, it is contended that as the dispute with respect to title between the petitioner and respondents 4 to 8 is pending in A.S. No.101 of 2022, in order to maintain transparency in making entries in revenue records, the same should reflect the name of petitioner in both columns i.e., pattadar and possessor, while name of 4th respondent should be entered only in pattadar column with necessary endorsement stating that such entries are made subject to the result of A.S. No.101 of 2022. In support of the said submission, reliance is placed on the judgment of Division Bench of this Court in Araveeti Venkatramana Reddy v. Yerrabali Venugopal Reddy1.
(b) He further contends that as the present writ petition was filed in the year 2008 and admitted long back, and considering to be pending nearly for 17 years, instead of relegating the parties to pursue alternative remedy, particularly, when the facts are not in dispute and having regard to the fact that the aspect of possession has attained the finality in view of the decree and judgment of the competent civil Court as confirmed further in Appeals, the issue 1 2024 (5) ALT 44 14 CGR, J.
W.P. No.21407 of 2008should be considered and decided in the present proceedings itself. In support of the said submission, he relied on Dr. Bal Krishna Agarwal v. State of U.P.2; Durga Enterprises (P) Ltd. v. Principal Secretary, Govt. of U.P.3 and Popcorn Entertainment v. City Industrial Development Corpn.4.
(c) He further contended that the writ petition essentially challenged the action of 2nd respondent in holding enquiry to decide the possession and title of the subject property, at the instance of respondents 4 to 8 to be illegal and without jurisdiction and consequently, to quash the proceedings, which in itself encompasses challenge to passing of ex parte interim order and once substantive proceedings are held to be without jurisdiction and quashed, any interim order granted in those proceedings shall automatically get merged with the final order and though no specific challenge is laid to the said ex parte order, the High Court has ample power to mould the relief sought in the writ petition to balance equities having regard to the factual situation. He places reliance 2 (1995) 1 SCC 614 3 (2004) 13 SCC 665 4 (2007) 9 SCC 593 15 CGR, J.
W.P. No.21407 of 2008on the judgment in K.B. Ramachandra Raje v. State of Karnataka5.
10. Opposing aforesaid submissions, Sri P. Sri Raghuram, learned senior counsel, appearing for the unofficial respondents, contended that the existing entries in revenue records as on the year 2006 which reflected the name of father of 4th respondent namely Jethalal Haridas Joisher were amended by 3rd respondent in pursuance of the claim made by the writ petitioner under Section 4 of the Act r/w. Rule 5(3) of the Rules, and such order making amendment of entries being appealable under Section 5(5), a statutory right is vested on the persons aggrieved, therefore, the appeal preferred by respondents 4 to 8 was very much maintainable before the 2nd respondent. The petitioner having taken benefit of getting his name included in the revenue records, by deleting the name of father of 4th respondent, is precluded from contending that such order recognising his entries should be final and not appealable before 2nd respondent. The 2nd respondent being appellate authority is bestowed with powers and functions to decide the appeal under Section 5(5) of the Act independently upon considering respective pleas of the parties including the judgment 5 (2016) 3 SCC 422 16 CGR, J.
W.P. No.21407 of 2008and decree passed by competent civil Court and at any rate the appeal cannot be rejected at the threshold without examining the above aspects and the same clearly amounts to abdication of the functions.
(b) Learned Senior Counsel further contended that O.S. No.7 of 1996 instituted by 4th respondent was merely a Suit for permanent injunction restraining defendants therein from interfering with the management, administration and possession of the factory viz., Bhanusali Sissal Fibre Industry and Plantations and properties mentioned therein, but not a substantive Suit for declaration of title, therefore, stray findings recorded with respect to possession in the said Suit of respondents would not enure to the benefit of the petitioner and particularly, when there is no decree in their favour. By referring to Section 8(2) of the Act, he would contend that only the decree in Suits seeking declaration of right under Chapter-VI of the Specific Relief Act, 1963, would be binding on the authorities under the Act and in the present case as the petitioner has no such decree in his favour, any findings recorded in a Suit for permanent injunction that too filed by respondents 4 to 8 herein would not bind the authorities.
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CGR, J.
W.P. No.21407 of 2008
(c) Learned Senior Counsel further contended that the subsequent Suit filed in O.S. No.19 of 2007 for declaration of title, permanent injunction or alternative plea for delivery of possession has been decreed, in favour of respondents 4 to 8, which also has bearing for the purpose of deciding appeal under Section 5(5) of the Act, and in as much as petitioner has already filed counter on merits before the 2nd respondent, in all fairness, the petitioner should be relegated to canvass all his pleas, even that of jurisdictional aspect, before the 2nd respondent. In support of the aforesaid submissions, reliance is placed on Erukala Uma v. Govt. of A.P.6.
11. Sri M.R.K. Chakravarthy, learned counsel appearing for the unofficial respondents, while supporting the arguments advanced by the learned senior counsel Sri P. Sri Raghuram, contended that the petitioner has not pleaded or demonstrated as to how he got the title to the subject property, except making a bald statement and that the long standing entries reflecting name of father of 4th respondent were altered and amended in pursuance of the orders passed by the 3rd respondent at the instance of the petitioner without proper appreciation and examination of the records and material placed before him, therefore, respondents 4 to 8 being aggrieved have 6 2014 (3) ALT 176 = 2014 (2) ALD 228 18 CGR, J.
W.P. No.21407 of 2008rightly filed appeal before the 2nd respondent under Section 5(5) of the Act. He further contends that the alterations done to the entries in the revenue records were without following the mandatory procedure under Sections 4 and 5 of the Act, therefore, these aspects have to be gone into upon proper scrutiny and examination of the relevant material and documents by the appellate authority and as the statute confers such power on the appellate authority, it cannot be said that entertaining the appeal amounted to acting without jurisdiction.
12. Learned Assistant Government Pleader for Revenue appearing for official respondents 1 to 3, while reiterating the submissions advanced by other respondents, contended that any order passed by the 3rd respondent under Section 5(3) of the Act being appealable under Section 5(5) of the Act, the 2nd respondent has rightly entertained the appeal filed by the aggrieved persons i.e., respondents 4 to 8 herein and when the matter was at the stage of completion of pleadings, the petitioner has approached this Court that too after having submitted to the jurisdiction of the appellate authority, therefore, the writ petition has to be rejected.
13. Perused the record and considered the rival submissions addressed by both parties.
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CGR, J.
W.P. No.21407 of 2008
14. The subject lands are purchased by Jethalal Haridas Joisher under registered sale deed, dated 20.09.1949. The revenue records reflected his name as pattadar and possessor. He filed O.S. No.7 of 1996 on the file of the Senior Civil Judge, Penukonda, against petitioner and two others seeking permanent injunction from interfering with the management, administration and possession of the factory viz., Bhanusali Sissal Fibre Industry and Plantations and properties mentioned therein. Petitioner contested the Suit contending that subject property was purchased in the name of 1st plaintiff viz., Jethalal Haridas Joisher, by joint family of sons of Velgi Narshi with joint family funds for the benefit of joint family and the same was never exclusive property of the 1st plaintiff. He being son of Chaganlal Velgi, under family settlement, dated 27.02.1991, the ownership to these properties got vested to him and that he was in possession of the subject property. The Suit was dismissed. Learned trial Court recorded finding that defendants i.e., petitioner herein and 2 others were in possession and enjoyment of the plaint schedule property and the plaintiffs/ respondents 4 to 8 herein, were not in possession and enjoyment of the plaint schedule property as on the date of filing of the Suit. Appeal preferred against the aforesaid judgment in A.S. No.1 of 2003 came to be dismissed and 20 CGR, J.
W.P. No.21407 of 2008so also the second appeal in S.A. No.822 of 2006 before this Court was also dismissed by judgment, dated 20.11.2006, however, with liberty to the appellants therein to file Suit for recovery of possession, if they felt that possession of respondents therein was illegal. Respondents 4 to 8 thereafter filed O.S. No.19 of 2007 on the file of the Additional District Judge, Hindupur, for declaration of title, permanent injunction or in alternative for delivery of possession. By judgment and decree, dated 29.03.2022, the aforesaid Suit came to be decreed declaring right and title of the plaintiffs/respondents 4 to 8 herein, to subject properties, as it was found that under the earlier judgment and decree, they were not in possession and enjoyment of the property, the relief of grant of permanent injunction was rejected and the alternative relief of delivery of possession was granted. Petitioner and two others preferred A.S. No.101 of 2022 before this Court and in I.A.No.2 of 2022 by way of interim order, dated 02.05.2022, there is an arrangement between the parties including respondents 4 to 8 herein not to take any steps with regard to execution of decree under appeal and the said interim order is being continued from time to time. Yet, another writ petition was filed by same petitioner in W.P. No.22454 of 2022 when there was an attempt to amend the 21 CGR, J.
W.P. No.21407 of 2008record of rights/adangal to the extent of Ac.202 in Survey No.83-1 of subject property in favour of third party pending status quo orders passed in the present writ petition, in which, this Court passed yet another interim order, dated 27.07.2022, directing respondents to maintain status quo with regard to record of rights for a period of two months and the same being extended from time to time.
15. After dismissal of S.A. No.822 of 2006 on 20.11.2006, the petitioner made claim for amendment of entries in revenue records to incorporate his name in place of Jethalal Haridas Joisher, the 3rd respondent Mandal Revenue Officer passed orders changing the entries in favour of petitioner. The said order being appealable, respondents 4 to 8 herein filed appeal in Rc.No.C.C.H/1743/2007 before the 2nd respondent Revenue Divisional Officer under Section 5(5) of the Act on 01.11.2007. The same was entertained and an ex parte interim order, dated 01.11.2007, was passed suspending the amended entries made in pursuance to the order under challenge therein. The entries till the year 2006 reflected the name of Jethalal Haridas Joisher and after the order passed by the 3rd respondent, name of the petitioner came to be substituted for a brief period and immediately upon suspension of the order passed by the 3rd respondent, the entries once again came to be restored back in 22 CGR, J.
W.P. No.21407 of 2008the name of Jethalal Haridas Joisher as pattadar and 4th respondent as possessor.
16. The controversy between the contesting parties revolves around amending of entries in revenue records. Till the year 2006 name of Jethalal Haridas Joisher was reflected in the revenue records both as pattadar and possessor. The aforesaid entry came to be amended at the instance of the petitioner in pursuance of the orders passed by the 3rd respondent. Order of 3rd respondent has not been annexed along with the writ petition. This order came to be suspended by 2nd respondent pending consideration of appeal. The petitioner, who is respondent in the appeal, initially chose to file counter on merits and also pleaded that in view of pendency of O.S. No.19 of 2007 on the file of the learned Additional District Judge, Hindupur, the appellate authority should refrain from entertaining the appeal and close it treating as infructuous. As the appellate authority again issued notice calling for hearing, petitioner has chosen to file the present writ petition. After filing of the writ petition, certain further developments took place as the Suit filed by respondents 4 to 8 for declaration of title came to be decreed. However, the relief of permanent injunction was refused and alternative relief of delivery of possession was ordered. Aggrieved 23 CGR, J.
W.P. No.21407 of 2008by the same, petitioner herein preferred appeal in A.S. No.101 of 2022 before this Court and there is no cross-appeal preferred by respondents 4 to 8 with regard to the rejection of their relief for grant of permanent injunction.
17. For better appreciation of the controversy, Sections 4, 5 and 8 of the Act, relevant for the present purpose, need to be extracted and they read as follows:
"4. Acquisition of rights to be intimated:- (1) Any person acquiring by succession, survivorship, inheritance, partition, Government patta, decree of a court or otherwise any right as owner, pattadar, mortgagee, occupant or tenant of a land and any person acquiring any right as occupant of a land by any other method shall intimate in writing his acquisition of such right, to the Mandal Revenue Officer within thirty days from the date of such acquisition, and the said Mandal Revenue Officer shall give or send a written acknowledgement of the receipt of such intimation to the person making it:
Provided that where the person acquiring the right is a minor or otherwise disqualified, his guardian or other persons, having charge of his property shall intimate the fact of such acquisition to the Mandal Revenue Officer.
(2) Notwithstanding anything contained in the Registration Act, 1908, every registering Officer appointed under the Act and registering a document relating to a transaction in land, such as sale, mortgage, gift, lease or otherwise shall intimate the Mandal Revenue Officer of the Mandal in which the property is situate of such transaction electronically by transferring the data to electronically maintained Record of Rights by the Tahasildar.
(3). Notwithstanding anything contained in sub-
sections (1) and (2), the Revenue Officer responsible for preparation of Village Records shall intimate to Tahsildar the acquisition of rights in land by any person in his jurisdiction within fifteen (15) days from the date of knowledge in the format as may be prescribed.
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CGR, J.
W.P. No.21407 of 2008Explanation-I: The right mentioned above shall include a mortgage without possession and a right determined by Civil Court.
Explanation-II: A person in whose favour a mortgage is discharged or extinguished, or a lease is determined, acquires a right within the meaning of this section.
5. Amendment and updating of record of rights -
(1) On receipt of intimation of the fact of acquisition of any right referred to in Section 4, the Mandal Revenue Officer shall determine as to whether, and if so in what manner, the record of rights may be amended in consequence therefor and shall carryout the amendment in the record of rights in accordance with such determination:
Provided that no order refusing to make an amendment in accordance with the intimation shall be passed unless the person making such intimation has been given an opportunity of making his representation in that behalf.
Provided further that when the registration is approved by the Registering Officer, the name of the claimant shall be mutated in lieu of name of the executants on real time basis provisionally in electronically maintained data duly assigned notional subdivision number as may be prescribed pending enquiry by the Tahsildar:
Provided also that the provisional mutation shall be confirmed by the Tahsildar electronically by following due procedure under sub-section (3) within 30 days of the registration. The aggrieved person may file an appeal to the Revenue Division Officer within a period of 15 days from the date of order of the Tahsildar and decision of the appellate authority thereon shall subject to the provisions of section 9 be, final.] (2) Where the Mandal Revenue Officer has reason to believe that an acquisition of any right of a description to which section 4 applies has taken place and of which an intimation has not been made to him under that section and where he considers that an amendment has to be effected in the record of rights, the Mandal Revenue Officer shall carry out the said amendment in the record of rights.
(3) The Mandal Revenue Officer shall, before carrying out any amendment in the record of rights under sub-section (1) or sub-section (2) issue a notice in writing to 25 CGR, J.W.P. No.21407 of 2008
all persons whose names are entered in the record of rights and who are interested in or affected by the amendment and to any other persons whom he has reason to believe to be interested therein or affected thereby to show cause within the period specified therein as to why the amendment should not be carried out. A copy of the amendment and the notice aforesaid shall also be published in such manner as may be prescribed. The Mandal Revenue Officer shall consider every objection made in that behalf and after making such enquiry as may be prescribed pass such order in relation thereto as he deems fit.
(4) Every order passed under this section shall be communicated to the persons concerned.
(5) Against every order of the Mandal Revenue Officer either making an amendment in the record of rights or refusing to make such an amendment, an appeal shall lie to the Revenue Divisional Officer or such authority as may be prescribed, within a period of sixty days from the date of communication of the said order and the decision of the appellate authority thereon shall, subject to the provisions of section 9, be final.
(6) The Mandal Revenue Officer shall have the power to correct clerical errors, if any, in the Pass Books.
....
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 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 43 of 1963), and the entry in the record of rights shall be amended in accordance with any such declaration."
18. Any person acquiring a right in any land by virtue of decree of Court as set out in Section 4(1) of the Act could approach the 26 CGR, J.
W.P. No.21407 of 2008Tahsildar for recognition of that right in the revenue records by mutation of the said records under Section 5 of the Act. Petitioner claiming right under decree of Court, approached Tahsildar for amending the entries in revenue records by substituting his name in place of Jethalal Haridas Joisher in view of the judgments rendered in O.S. No.7 of 1996, A.S. No.1 of 2003 and S.A.No.822 of 2006, claiming that those judgments have recognized petitioner to be in possession of the subject land. Section 5(5) of the Act provides for an appeal against an order passed under Section 5(3) of the Act amending the record of rights and in as much as name of Jethalal Haridas Joisher came to be deleted, being aggrieved thereby, 4th respondent, his son, preferred appeal before the 2nd respondent Revenue Divisional Officer. The 2nd respondent, being appellate authority, conferred with jurisdiction under Section 5(5) of the Act, is bound to entertain the appeal and decide the matter on merits, which decision shall be final subject to the provisions of the revisional powers conferred on the Collector under Section 9 of the Act.
19. Section 8 bars institution of Suit against Government or any officer of the Government in respect of any entry made in relation to record of rights either omitting or amending. Sub-section (2) of 27 CGR, J.
W.P. No.21407 of 2008Section 8 contemplates that any declaration of right and title made by competent civil Court under Chapter-VI of the Specific Relief Act, 1963, such rights of respective parties have to be entered in record of rights and the same shall be binding on the revenue authorities.
20. In Erukala Uma6, a Division Bench of this Court, on reference, while considering the divergent views expressed on the aspect whether mere pendency of civil Suit before the civil Court would exclude the jurisdiction of the Collector under Section 9 of the Act, answering the same, held that the judgment rendered in V.Gowtham Rao v. Revenue Divisional Officer, Jagtial, Karimnagar7 would apply to Suits as contemplated under Section 8(2) of the Act i.e. those which are in the nature of declaratory Suits and the same cannot be applied as a straight jacket formula to all other Suits to say that pendency of such Suit would denude revenue authorities in exercising their jurisdiction under the provisions of the ROR Act. Further it also clarifies that the Act itself provides a complete mechanism in respect of maintaining the revenue records, whenever the authority vested with jurisdiction initiates proceedings, just because a Suit is pending, ipso facto, the same will not entitle a party to approach the High Court under Article 226 of the 7 2003 (1) ALT 615 = 2003 (1) ALD 681 28 CGR, J.
W.P. No.21407 of 2008Constitution of India rather than pursuing the matter before the authority. Paras 13 to 15 of the said judgment read as under:
"13. The judgment rendered in V. Goutham Rao's case is applicable only in such cases where the nature of suit conforms to a suit contemplated under Section 8(2) of the Act and not as a straight jacket formula that wherever and whenever a suit is pending, the revenue authorities under the RoR Act cannot exercise their jurisdiction. We also concur with the view taken by the learned single Judge in the order of reference. The said contentions urged before this Court in the writ petition can as well be raised by the parties before the Collector by way of reply to the show cause notice instead of coming to the High Court.
14. We are of the opinion that the Act provides a complete mechanism in respect of making entries in the revenue records. The Act contains a prescribed procedure and lays down the powers of the authorities in relation to passing orders and making entries. The provision envisages that whenever an application is filed before the authorities intimating them about the acquisition of rights and seeking amendment of the entries, the authorities have to put all such persons to notice, whose names are entered in the record of rights, who are interested and who are going to be affected by the amendment. When a person receives a show cause notice from the authorities, it is incumbent upon him to appear before the authorities and by way of a reply, submit before the authorities all relevant facts including pendency of civil suit, if any. But he cannot straightaway approach this Court under Article 226 of the Constitution of India and seek a writ of Mandamus. In such cases, this Court should refrain from exercising the extraordinary jurisdiction under Article 226 of the Constitution of India.
15. Hence, we deem it appropriate to clarify the judgment of the learned single Judge of this Court in V. Goutham Rao's case, to the extent that, when a show cause notice is issued by a competent authority, just because a civil suit is pending, ipso facto, it will not entitle a party to approach the High Court under Article 226 of the Constitution in view of the law laid down in V. Gowtham Rao's case, but the party has to approach the authority by way of a reply and should bring all the relevant facts to the notice of the authority otherwise, the purpose of the Act 29 CGR, J.W.P. No.21407 of 2008
itself would be frustrated, which is enacted for effective implementation of entries in Record of Rights."
21. In the present case, admittedly order was passed under Section 5(3) of the Act by the 3rd respondent Mandal Revenue Officer amending the entries, aggrieved by the same, appeal came to be preferred under Section 5(5) of the Act before the 2nd respondent Revenue Divisional Officer, who later on exercising jurisdiction, as conferred, issued notice to the petitioner. The petitioner filed counter on merits and also besides raising various legal submissions. As on the date of filing of counter, the crucial considerations were that Suit filed by respondents 4 to 8 for injunction got dismissed and confirmed in appeals. Later, the same respondents filed Suit for declaration of title and for permanent injunction with alternative prayer of delivery of possession. No separate Suit has been instituted by petitioner nor was there any decree in favour of petitioner granting injunction. All through the entries in revenue records reflected the name of Jethalal Haridas Joisher till the year 2006 and only because of the application made by the petitioner which apparently based on the dismissal of the Suit in his favour instituted by respondents 4 to 8, entries were altered. The order of the 3rd respondent which is in appeal before the 2nd respondent has to be considered and tested from the perspective of 30 CGR, J.
W.P. No.21407 of 2008material available as on that day. As the order passed by 3rd respondent is not placed on record, the reasons or consideration by 3rd respondent in coming to conclusion for altering the entries are not known, at any rate, the appellate authority created under the statute is obligated to consider the legality or otherwise of the order passed by the 3rd respondent. In normal course and circumstances, this Court would not have ventured into entertaining the plea raised by petitioner as petitioner has already submitted to the jurisdiction of 2nd respondent.
22. Even the Division Bench in its judgment in Erukula Uma6 made it clear that when a person serves show-cause notice and submits to the jurisdiction of the authority pleading relevant facts cannot straightaway approach this Court under Article 226 of the Constitution of India and seek mandamus and that this Court refrain from exercising the extra-ordinary jurisdiction. Having said so, this Court cannot lose sight of the fact that the writ petition was filed in the year 2008, which was admitted and pending consideration for almost 17 years. That apart, the dispute between the parties since now has been adjudicated by competent civil Court in O.S. No.19 of 2007 on the file of the learned Additional District Judge, Hindupur, by which the title to the property has been declared in favour of 31 CGR, J.
W.P. No.21407 of 2008respondents 4 to 8, however, having found that they were not in possession of the property and rather the defendants therein i.e. writ petitioner and others being in possession, the prayer for permanent injunction was refused and the alternative relief of delivery of possession was ordered. Even in the appeal preferred against the said judgment, in A.S. No.101 of 2022, respondents 4 to 8 herein have undertaken not to execute the aforesaid decree meaning thereby, the decree of delivery of possession has not been implemented so far. As the facts narrated above are not in dispute, even if the matter is relegated back to the appellate authority i.e. 2nd respondent Revenue Divisional Officer, the only issue that requires to be considered and decided remains as to whether the amendment to the entries in the revenue records in the teeth of the subsequent developments would be valid and legal and require interference.
23. The contention of the petitioner that instead of relegating the parties to pursue alternative remedy before the appellate authority, in the light of the facts narrated above, including the subsequent developments, the matter be decided in the present writ petition has considerable force.
32
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24. In Dr. Bal Krishna Agarwal2, the question of seniority as fixed by Executive Council was assailed by filing writ petition by the petitioner therein, who was holding the cadre post of Professor as persons who were promoted to the grade of Professor under personal promotion scheme were placed above him in terms of seniority. The writ petition was filed in the year 1988 and it had been admitted and was pending in the High Court for more than five years. The High Court dismissed the writ petition and relegated the petitioner therein to avail alternative remedy of reference to Chancellor as provided under Section 68 of the U.P. State Universities Act, 1973. The Hon'ble Apex Court found fault with the said approach of the High Court in relegating the petitioner to avail alternative remedy when the writ petition was pending for almost more than five years. Para.10 of the said judgment reads as under:
"10. Having regard to the aforesaid facts and circumstances, we are of the view that the High Court was not right in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy under Section 68 of the Act especially when the writ petition that was filed in 1988 had already been admitted and was pending in the High Court for the past more than five years. Since the question that is raised involves a pure question of law and even if the matter is referred to the Chancellor under Section 68 of the Act it is bound to be agitated in the court by the party aggrieved by the order of the Chancellor, we are of the view that this was not a case where the High Court should have non-suited the appellant on the ground of availability of an alternative remedy. We, therefore, propose to go into the merits of the question regarding inter se 33 CGR, J.W.P. No.21407 of 2008
seniority of the appellant and Respondents 4 and 5. We may, in this context, mention that Respondent 4 has already retired in January 1994."
25. In Durga Enterprises (P) Ltd.3, when High Court relegated the party to avail alternative remedy of filing civil Suit, having kept the writ petition pending for a long period of 13 years, the Hon'ble Apex Court found fault with the approach of the High Court and remitted the matter back to the High Court for deciding the matter on merits.
26. Even in the present case, as mentioned above, the writ petition was filed and admitted way back in the year 2008 and the same has been pending consideration for almost 17 years. Further, unlike in the above referred judgments, in the present writ petition, there are certain new developments which have taken place, more significantly, the Suit filed by respondents 4 to 8 in O.S. No.19 of 2007 for declaration of title and delivery of possession came to be decreed. As the facts narrated above which are the admitted position as on today reveal that title to the property has been declared in favour of respondents 4 to 8 and so far as possession is concerned, the same is held to be with the petitioner and further there is a decree granted against the petitioner for delivery of such possession. It is admitted that as on today, respondents 4 to 8 have 34 CGR, J.
W.P. No.21407 of 2008not challenged the aforesaid decree to the extent of rejecting the claim to grant permanent injunction meaning thereby, they have accepted dismissal of such relief. Further, the said respondents have also undertook in A.S. No.101 of 2022 before this Court that they will not seek execution of the decree which ordered recovery of possession. In view of the above admitted position on behalf of either parties and having regard to the fact that the writ petition is pending for almost 17 years, this Court proposes to go into the merits of the matter rather than relegating the parties in pursuing the alternative remedy before the 2nd respondent.
27. The petitioner sought for correction of entries in revenue records based on the judgment and decree in O.S. No.7 of 1996 as confirmed in A.S. No.1 of 2003 and in S.A. No.822 of 2006, though the same was not preferred by the petitioner and it being simplicitor decree dismissing the claim seeking for permanent injunction at the instance of respondents 4 to 8. Whether basing on such decree, any right in the subject land got accrued in favour of petitioner to claim mutation of his name by amending the revenue records in terms of Section 4(1) r/w. Section 5 of the Act was to have been examined by the appellate authority under Section 5(5) of the Act. However, while considering the application for correcting or 35 CGR, J.
W.P. No.21407 of 2008amending the revenue records, it appears, respondents 4 to 8 filed O.S. No.19 of 2007 for declaration of title, permanent injunction with alternative relief for delivery of possession. The alternative prayer appears to be made as this Court in S.A. No.822 of 2006, while dismissing the appeal, granted liberty to seek delivery of possession in case the defendants therein found to be in illegal possession. If this matter has to be tested from the perspective of whether the dismissal of the Suit for injunction in favour of petitioner would accrue a right in his favour seeking amendment of entries in the revenue records, in the considered opinion of this Court, the same ipso facto does not entitle the petitioner to claim for amendment or mutation as there is no decree as such in his favour. Merely because Suit filed by respondents 4 to 8 for injunction was dismissed, the same shall not confer any right on the petitioner much less constitutes a decree in his favour for invoking Section 4(1) of the Act. But, after making amendments in the revenue records and more or less at the same time, respondents 4 to 8 instituted fresh Suit in O.S. No.19 of 2007, which later came to be decreed, by virtue of Section 8(2) of the Act, such decree inter se between the parties shall bind the revenue authorities. The aforesaid decree in so far as possession is concerned, orders 36 CGR, J.
W.P. No.21407 of 2008restoration of the same from defendants to plaintiffs i.e. from writ petitioner to respondents 4 to 8. Further, this decree is in further appeal in A.S. No.101 of 2022 before this Court, wherein the parties have undertaken not to execute the same and such arrangement continues even as on today. In effect, respondents 4 to 8 as on today are declared to be title holders and whereas petitioner is held to be in possession of the subject property. More or less placed with similar situation, the Division Bench in Araveeti Venkatramana Reddy1, while considering the issue as to whether pending preliminary decree, there could have been amendment or mutation of names of beneficiaries under such decree, has held as follows:
"25. Another aspect that needs to be looked at, while considering the above issue, is the fact that purchasers or persons interested in a property, though the Courts have consistently held that mere entries into the revenue records do not confer title or ownership over any property, normally look at the revenue records to ascertain the persons who are shown as owners or possessors of the property in the revenue records. Inclusion of names of persons, who have been declared to have a share in the property, by virtue of a preliminary decree would only promote transparency in the revenue records.
26. On the second issue of the manner in which the mutation had been carried out, we are in respectful agreement with the views of the learned Single Judge that the revenue authorities cannot step into the shoes of the Court and effectively create a final decree even before such a proceeding is issued by the Court. A perusal of the order impugned before the learned Single Judge would show that the 5th respondent- Tahsildar had sub-divided the land and created sub-divisions in the revenue records, after which each of the parties were allotted certain sub-division 37 CGR, J.W.P. No.21407 of 2008
numbers and the land in those sub-divisions were shown to be owned and possessed by such persons. This allocation of land and creating sub-divisions in the revenue records would effectively amount to separation of the property by metes and bounds. Such a course of action is not permissible.
27. The only option available to the 5th respondent- Tahsildar, was to have simply included the names of all the parties, who have held a share or interest in the said land, in the preliminary decree. In view of the fact that the quantum of shares could always change, till the passing of the final decree, the 5th respondent-Tahsildar could only have included the names without assigning any share to any of the parties who were found to have a right or share in the property, in the preliminary decree."
28. No doubt the entries in revenue records do not confer title or ownership over any property, but the said entries normally reflect true and actual position as existing physically.
29. Considering the facts above and having regard to the fact that the inter se dispute between the parties is now pending adjudication before this Court in A.S. No.101 of 2022, and that title to the subject property has been declared in favour of respondents 4 to 8, but possession is held to be with the petitioner and others, who were directed to deliver the same in terms of the decree under challenge, which the parties agreed not to seek execution, in a way tantamount to maintaining status quo, this Court feels it appropriate to dispose of the writ petition with the following directions: 38
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(1) The appeal filed by the 4th respondent before the 2nd respondent Revenue Divisional Officer is partly allowed to the extent of setting aside the order of the 3rd respondent Mandal Revenue Officer directing amendment of entries in the revenue records in deleting the name of Jethalal Haridas Joisher as pattadar/owner of subject property in Column No.12. In so far as amending or mutating the name of petitioner by substituting the name of Jethalal Haridas Joisher as possessor in Col.Nos.14 and 15 is sustained.
(2) The respondents 2 and 3 are directed to amend the entries in record of rights accordingly and further they are directed to mention that such entries shall be subject to the outcome of A.S. No.101 of 2022 pending before this Court.
30. With the above observations, the writ petition is disposed of. No order as to costs.
As a sequel, miscellaneous petitions pending consideration, if any, in this case shall stand closed.
_____________________________ JUSTICE CHALLA GUNARANJAN Date:24.03.2025.
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