Andhra Pradesh High Court - Amravati
Pyla Venkata Swamy Babu, vs The State Of Andhra Pradesh, on 19 March, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.534 of 2020
ORDER:
This writ petition under Article 226 of the Constitution of India is filed by Pyla Venkata Swamy @ Babu claiming Writ of Mandamus to declare the Form VIII dated 19.12.2019 issued under Rule 19 (1) of the Andhra Pradesh Rights in Land and Pattadar Pass Books Rules (for short "the Rules"), read with Section 5 (3) of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (for short "the Act"), by respondent No.4 during pendency of the comprehensive suit O.S.No.357 of 2004 on the file of the II Additional District Judge, Visakhapatnam, in respect of the lands of an extent of Ac.29.78 cents situated at Bhogapuram, Dupputuru Village, Visakhapatnam District without conducting any enquiry as illegal, arbitrary and violative of the Principles of Natural Justice and contrary to the provisions of the Act, consequently grant stay of all further proceedings pursuant to the publication dated 19.12.2019 issued by respondent No.4 in respect of lands of an extent of 0.40 cents in Sy.No.52, 0.15 cents in Sy.No.54, 0.30 cents in Sy.No.56, 0.15 cents in Sy.No.60/2, 0.80 cents in Sy.No.103, 2.00 cents in Sy.No.112, 0.60 cents in Sy.No.113, 0.60 cents in Sy.No.114, situated in Bhogapuram Village and an extent of 6.70 cents in Sy.No.40/2, 2.60 cents in Sy.No.30, 3.86 cents in Sy.No.31, 2.65 cents in Sy.No.38, 4.28 cents in Sy.No.39, 1.53 cents in Sy.No.41/2, 1.20 cents in Sy.No.478, 0.35 cents in Sy.No.448, 0.44 cents in Sy.No.490/1, 1.15 cents in Sy.No.29, 0.40 situated at Dupputuru Village, Visakhapatnam district totalling Ac.29.78 cents.
The petitioner purchased an extent of Ac.29.78 cents in different survey numbers (referred above) from Kundrapu Kondadu MSM,J WP_534_2020 2 vide registered sale deed dated 14.07.2004, since then he is in possession and enjoyment of the property without any interruption from anybody.
Originally, the vendor of the petitioner Kundrapu Kondadu executed an agreement of sale in respect of the above said lands and other lands on 16.08.1992 for a total sale consideration of Rs.3,00,000/- and received a sum of Rs.2,70,000/- as an advance on various dates. As the vendor of the petitioner Kundrapu Kondadu failed to execute registered sale deeds in favour of the petitioner, he filed O.S.No. 132 of 1995 on the file of the subordinate judge at Yalamanchili for specific performance of agreement of sale. The trial Court decreed the suit on 12.02.2001. Aggrieved by the said decree and judgment, Kundrapu Kondadu filed A.S.No.986 of 2001, pending appeal Kondarapur Kondadu died and his legal representatives i.e. Kundrapu Lakshmi and others were impleaded as parties to the appeal and Kundrapu Venkata Lakshmi who is one of the legal representatives, filed A.S.No.3664 of 2004 before the High Court of Andhra Pradesh at Hyderabad. During the life time of Kundrapu Kondadu, he handed over possession to the petitioner on 01.11.2002, executed registered sale deed on 14.07.2004 in his favour. Kundrapu Kondadu also filed an application under Order XXIII Rule 1 of Code of Civil Procedure (for short "C.P.C.") in A.S.No.986 of 2001 to withdraw the appeal. Since the legal representatives of Kundrapu Kondadu objected for compromise in the appeal, the appeal was heard on merits along with the CMA.No.772 of 2006 which was filed by the petitioner against respondents 7 and 8 herein and others against the order in I.A.No.1072 of 2004 in O.S.No. 357 of 2004 on the file of the II Additional District Judge at Visakhapatnam. The appeals filed by MSM,J WP_534_2020 3 Kundrapu Kondadu and his legal representatives were allowed and CMA No. 772 of 2006 filed by the petitioner was dismissed by common judgment on 14.03.2011.
Aggrieved by the common judgment and decree, the petitioner filed SLP.No.25016-25018 of 2011 before Hon'ble Supreme court of India and the same were dismissed on 18.08.2017. Subsequently, the petitioner filed Review Application in A.S.No. 986 of 2001 vide I.A.No.4 of 2017 and the same is pending for adjudication.
Respondents 7 and 8 herein along with others filed O.S.No.357 of 2004 against the petitioner, his vendor and others for declaration of title and possession of the plaintiff therein in respect of the plaint schedule property annexed to the plaint in the said suit and for permanent injunction restraining the defendants therein from interfering with their possession and also to declare the sale deed dated 14.07.2004 executed by Kundrapu Kondadu in his favour is collusive, nominal and to declare it as void. The said suit is pending for adjudication.
While the proceedings in review application I.A.No.04 of 2017 in A.S.No.986 of 2001 and the suit O.S.No.357 of 2004 are pending, the petitioner submitted an application to the then Thasildar for issuance of the pattadar pass books. Upon that application the then Sub-Collector Narsipatnam conducted enquiry and passed an order on 07.01.2005 directing the parties to seek declaration of title before the competent Court. Aggrieved by the said order, the petitioner filed revision petition No.7/05/D2 before the Revisional authority and Joint Collector, Visakhapatnam, but the same is ended in dismissal on 29.03.2008.
MSM,J WP_534_2020 4 It is the specific contention of the petitioner that when the petitioner approached respondent No.4 for issuance of pattadar pass books, the authorities declined to issue pattadar pass books in view of pendency of O.S.No.357 of 2004 and review application before the High Court. The respondent Nos.7 and 8, with the support of local M.L.A., submitted an application to respondent No.4 for issuance of pattadar pass books and title deeds. Respondent No.4 without issuing any notice to the petitioner conducted enquiry and respondent No.5 directed the petitioner to approach the M.L.A. and settle the issue. Immediately, the petitioner submitted documentary evidence available with him and stated that the suit filed by unofficial respondents is pending for adjudication before the competent Civil Court. In fact, R.C.No.639/A/2017, the then Tahsildar filed report in the Court below informing that the petitioner is in possession and enjoyment of the property in dispute.
Respondent Nos.4 to 6 in collusion with respondent Nos.7 and 8 conducted enquiry without issuing any notice to the petitioner. On coming to know about the same, the petitioner submitted a representation dated 11.10.2019 to respondent Nos.2 to 6. Respondent No.4 having received the same, without issuing any notice to the petitioner, again conducted enquiry behind him on 14.10.2019. Thereafter, the petitioner made a representation in SPANDANA vide application VSP20191014264 dated 14.10.2019. Since the authorities are not considering the representation of the petitioner, he filed W.P.No 15917 of 2019 questioning the inaction of the respondents and this Court was pleased to issue a direction on 16.10.2019 to respondent No.4 to issue notices and give an opportunity to all the concerned including the petitioner before MSM,J WP_534_2020 5 taking any action on the application filed by respondent Nos.7 and 8 and pass appropriate orders.
To the utter surprise and dismay to the petitioner, respondent No.4 sent a copy of the publication dated 19.12.2019, which was served on the petitioner on 28.12.2019 for amending Form-1B in the name of respondent Nos.7 and 8 in respect of the subject property in the present writ petition as well as in O.S 357 of 2004 which was filed for comprehensive relief of declaration of title, permanent injunction and to declare the sale deed dated 14.07.2004 executed in favour of the petitioner as collusive and nominal, and the said suit is still pending before the competent civil court. In the publication, the names of unofficial respondents were shown as pattadar and their names were shown in 1-B namuna in place of vendor of the petitioner by name Kondadu. The 1st part of the publication shows that the petitioner was asked to appear within 15 days before respondent No.4 for filing objections. The 2nd part of the publication shows that if anybody has objections in respect of amendment they have to file appeal before the appellate authority within 60 days. The impugned notice dated 29.12.2019 issued by respondent No.4 is ambiguous in the sense that whether it is a notice for calling objections to hold enquiry or an order was passed. Therefore, the notice itself is ambiguous and not in accordance with provisions of the Act and the rules framed thereunder.
The issuance of notice itself shows that it is illegal, arbitrary and contrary to the orders passed in W.P.No.15917 of 2019. Conducting enquiry for issuance of pattadar pass book and title deed in favour of unofficial respondent Nos.7 and 8 during pendency of the suit O.S.No.357 of 2004 and review petition before this Court MSM,J WP_534_2020 6 and in view of the rejection of the claim of the petitioner in the earlier round of litigation by Revenue Divisional Officer on 11.10.2019 and Joint Collector on 25.10.2019 directing the parties to obtain the decree from the Competent Court, itself sufficient to conclude that respondent Nos.4 and 5 are acting mala fide, at the instance of the sitting M.L.A. Therefore, the proposed action of the respondent Nos.2 to 6 is illegal, arbitrary and requested to set aside the same and pass appropriate orders.
Unofficial respondent Nos.7 and 8 filed their counter along with vacate stay petition denying material allegations inter alia contending that the petitioner has no locus standi to file the writ petition as the suit O.S.No.132 of 1993 on the file of the Senior Civil Judge's Court, Elamanchili, Visakhapatnam, filed for specific performance based on agreement of sale dated 16.08.1993 alleged to have been executed by Kundrapu Kondadu was dismissed by common judgment dated 14.3.2011 passed in A.S. No. 986 of 2001, A.S. No. 3664 of 2004 and C.M.A. No.772 of 2006 on the file of the High Court of Andhra Pradesh at Hyderabad, and confirmed by the Apex Court in SLP Nos. 25016 - 25018 of 2011 dated 18.08.2017. Review Petition Nos.2228 to 2230 of 2017 dated 05.10.2017 were also dismissed. Suppressing the said fact, the writ petition is filed, on this ground the petitioner is disentitled to claim any relief, that the Court categorically held that the agreement of sale set up by the writ petitioner is not genuine and it was brought up for the purpose of the filing the suit. Since the petitioner lost his claim in the suit for specific performance, the petitioner has no right, title or interest in the subject property. During pendency of the appeals A.S.No.986 of 2011 and A.S.No. 3664 of 2004 on the file of the High Court, the MSM,J WP_534_2020 7 petitioner colluded with Kundrapu Kondadu, which resulted in execution of a sale deed dated 14.07.2004 in favour of the petitioner and subsequently the name of the petitioner was shown in the Encumbrance Certificate, and in as much as the petitioner was trying to interfere with the possession and enjoyment of the subject property, which was purchased by respondent Nos.7 and 8 under registered sale deed dated 28.05.2004 executed by Kundrapu Kondadu in their favour, they were constrained to file implead petition A.S.M.P. No. 1280 of 2010 in A.S. No. 986 of 2001 and the said petition was allowed and they were impleaded as respondents in the appeal and opposed the petition filed by Kundrapu Kondadu for withdrawal of the appeal. The High Court was also pleased to dismiss the petition for withdrawal of the appeal. When the petitioner failed to obtain any decree as on date, the sale deed allegedly executed by Kundrapu Kondadu in favour of the petitioner is collusive one, which is the subject matter of O.S.No.357 of 2004 on the file of the II Additional District Judge, Visakhapatnam. It is further contended that in the earlier petition, a direction was given, in pursuance of the direction, impugned notice in Form-VIII was issued and that there are no merits in the writ petition.
It is also further contended that there is no ambiguity in the impugned notice issued in Form VIII and said notice was issued in consonance with proforma of notice prescribed under Rules. Therefroe, on any ground, the impugned notice issued in Form VIII cannot be declared as illegal and arbitrary and the petitioner is not entitled to claim any stay during pendendy of the suit O.S.No.357 of 2004 on the file of the II Additional District Judge, Visakhapatnam and requested to dismiss the petition.
MSM,J WP_534_2020 8 During hearing, Sri A.S.C. Boss, learned counsel for the petitioner reiterated the contentions urged in the petition, more particularly, highlighted the alleged ambiguity in the impugned Form-VIII notice published, and served on the petitioner, so also about the pendency of the suit O.S.No.357 of 2004 on the file of the II Additional District Judge, Visakhapatnam for declaration of title and permanent injunction and to declare the sale deed executed in favour of the petitioner as collusive and nominal.
Apart from the above argument, it is specifically contended that when the petitioner submitted an application in Form-VIA, the Revenue Divisional Officer directed the petitioner to approach the competent Civil Court to obtain declaration and the same was confirmed by the Revisional Authority - Joint Collector vide order dated 29.03.2008. When the authorities under the Act issued such direction, the same is applicable to the petitioner, thereby processing of the application of the petitioner following the procedure under Section 5 read with Rule 19 of the Rules framed thereunder is an illegality and contrary to the findings of the competent authority under the Act and requested to set aside the impugned notice and grant stay of all further proceedings during pendency of the suit O.S.No.357 of 2004 on the file of the II Additional District Judge, Visakhapatnam.
Sri S.Subba Reddy, learned counsel, appearing for unofficial respondents supported the action of respondent Nos.2 to 6 and the notice in Form-VIII published and issued to the petitioner as a statutory requirement as per Rule 19 of the Rules. Absolutely, there is no ambiguity in the impugned notice. It is also further contended that mere pendency of the suit before the competent Court in MSM,J WP_534_2020 9 O.S.No.357 of 2004 on the file of the II Additional District Judge, Visakhapatnam is inconsequential to the present proceedings and such pendency would not debar the respondent Nos.2 to 6 from conducting necessary enquiry as per the provisions of the Act and Rules framed thereunder. Hence, on the ground of pendency of Suit O.S.No.357 of 2004, impugned notice in Form-VIII cannot be set aside and requested to dismiss the writ petition while allowing the respondent Nos.2 to 6 to proceed further with the enquiry and pass appropriate orders in accordance with law.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are:
(1) Whether the notice in Form-VIII published, issued to the petitioner is ambiguous and contrary to the provisions of the Act? If so, the same is liable to be set aside?
(2) Whether issuance of notice in Form-VIII during pendency of the suit O.S.No.357 of 2004 on the file of the II Additional District Court, Visakhapatnam, filed for declaration of title, consequential permanent injunction and to declare the sale deed executed in favour of the petitioner as collusive and nominal, is contrary to any of the provisions of the Act and Rules framed thereunder? If so, the impugned notice is liable to be set aside?
(3) Whether issuance of notice in Form - VIII during pendency of O.S.No.357 of 2004 on the file of II Additional District Court, Visakhapatnam filed by respondent Nos.7 and 8 and when a direction was issued against the petitioner in the application filed by him for issuance of Pattadar Pass Book and title deed by R.D.O. and by the revisional authority - Joint Collector in Revision petition No.7/05/D2 is illegal, irregular? If so, the impugned notice is liable to be set aside?
MSM,J WP_534_2020 10 P O I N T No.1:
The first and foremost contention of the petitioner is that impugned notice published in Form VIII is ambiguous since first part consists of proposed amendment and in the second part, respondent No.4 called for objections from interested persons. The core contention of the petitioner before this Court is that when amendment is made, the question of consideration of objections from the persons interested does not arise. Therefore, it creates confusion due to ambiguity in the notice in Form VIII itself and the petitioner challenged the same on account of ambiguity.
Section 5 of the Act deals with procedure to be followed for amendment and updating of record of rights. Sub-section (1) of Section 5 mandates publication of notice as per rules. According to sub-section (2) of Section 5 of the Act, 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. But the sub-section (2) of Section 5 of the Act is silent as to the rules, but conferred power on the Mandal Revenue Officer to amend or effect such modification when no intimation is issued under Section 4 of the Act, is given to the Mandal Revenue Officer.
Section 4 of the Act obligates 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 MSM,J WP_534_2020 11 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 ninety 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.
Thus, in case the person, who acquired right by any of the modes specified in sub-section (1) of Section 4 of the Act, the Mandal Revenue Officer can exercise such power as per sub-section (2) of Section 5 of the Act. Sub-section (2) of Section 5 of the Act is silent as to the rules as to how such amendment is to be effected.
In the present facts of the case, the petitioner made a representation as to acquiring right in the immovable property in view of execution of sale deed by Kundrapu Kondadu. However, the said Kundrapu Kondadu died during pendency of the suit, ultimately the suit filed by the petitioner for specific performance of contract of sale was ended in dismissal against the petitioner. Whether or not, a review petition is pending as on date, the petitioner has no title though deed of conveyance is executed prima facie. In any view of the matter, respondent Nos.7 and 8 also filed civil suit O.S.No.357 of 2004 for declaration of title based on deed of conveyance executed by Kundrapu Kondadu in their favour and for other consequential reliefs. One such relief is for cancellation of sale deed executed in favour of the petitioner by Kundrapu Kondadu during pendency of the suit on the basis of deed of conveyance executed by Kundrapu Kondadu in favour of respondent Nos.7 and 8, and still the suit O.S.No.357 of 2004 is pending on the file of the II Additional District Court, Visakhapatnam for adjudication. While the suit is pending, an application is made by respondent Nos.7 and 8 for mutation of their MSM,J WP_534_2020 12 names in the revenue records for the property in dispute. Thereupon, the Mandal Revenue Officer/Tahsildar commenced the process following the procedure prescribed under Section 5 of the Act, published notice in Form VIII in terms of Rule 19 (1) of the Rules.
It is an undisputed fact that a notice in Form VIII is published, which consists of two parts and the proforma of notice is extracted hereunder.
Form VIII (See Rule 19(1)) Notice Whereas the undersigned has received an intimation of the fact of acquisition of a right as described in the schedule hereunder and it appears that an amendment has to be made in the Record of Rights in consequence thereof ...................
and/or Whereas the Recording Authority has reason to believe that an acquisition of a right has taken place as described in the schedule hereunder and it appears that amendment has to be made in the Record of Rights in consequence thereof.
Now, therefore, under sub-section (3) of Section 5 of Andhra Pradesh [Rights in Land] and Pattadar Pass Book Act, 1971. All persons interested or affected are hereby required to show cause on or before .................. (date to be specified not being earlier than 30 days from the service/publication of the notice) as to why the amendment should not be carried out.
You.................... ..................... ............................. All persons interested or affected are hereby required to appear on or before the undersigned on .................... (date not earlier than forty five days from the service/publication of the notice) as ....................... (Place) .......................... time in connection with the enquiry proposed to be held in respect of the above matter.
Recording Authority
SCHEDULE
S.No. etc., of the entry relating Brief purport of proposed
to which is sought to be amended amendment
MSM,J
WP_534_2020
13
Form VIII consists of two parts. First part consists of recording of reason to believe that applicant has acquired right in the immovable property. According to last paragraph, the persons interested are entitled to submit their objections. Therefore, the second part of the impugned notice is only an intimation to the persons interested expressed his prima facie opinion as to acquisition of right in the immovable property and in the last paragraph, the Mandal Revenue Officer called for objections from the persons interested. When a proforma is prescribed under Rule 19 (1) of the Rules and its publication under Rule 19 (2) of the Rules in Form VIII, unless the Court finds lack of clarity in the notice, the Court many not interfere with such notice. But the impugned notice in Form VIII as per Rule 19 (1) of the Rules was published in accordance with the mandatory procedure prescribed under Section 5 of the Act read with Rule 19 of the Rules and the proforma of impugned notice Form VIII is strictly in consonance with the proforma prescribed under Rules. Even a bare reading of the entire notice, I find no ambiguity. Therefore, this Court cannot exercise power to quash such notice due to lack of clarity.
Proviso to Section 5(1) and Section 5(3) of Act No.26 of 1971 represent statutory embodiment of the most important facet of the rules of natural justice i.e. audi alterem partem. These provisions contemplate issue of notice to the persons likely to be affected by the action/decision of the Mandal Revenue Officer to carry out or not to carry out amendment in the Record of Rights. Proviso to Section 5(1) lays down that if the Mandal Revenue Officer decides not to make an amendment in the Record of Rights, then he shall pass appropriate order only after giving an opportunity of making representation to the person, who gives intimation regarding MSM,J WP_534_2020 14 acquisition of any right referred to in Section 4. Section 5(3) provides for issue of written notice to all persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment. Similarly, a notice is required to be issued to any other person whom the recording authority has reason to believe to be interested in or affected by the amendment. A copy of the amendment and the notice is also required to be published in the prescribed manner. The publication of notice in the prescribed manner is in addition to the notice, which is required to be given in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and also to any other person whom the recording authority has reason to believe to be interested in or affected by the amendment. To put it differently, the publication of a copy of the amendment and the notice is only supplemental and not the alternative mode of giving notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and to any other person to whom the recording authority has reason to believe to be interested in or affected by the amendment. If the Legislature thought that publication of a general notice in Form-VIII will be sufficient compliance of the rules of natural justice, then there was no occasion to incorporate a specific requirement of issuing written notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment. The requirement of issuing written notice to such persons clearly negates the argument that publication of notice in Form-VII is sufficient. Thus the language of Form VIII in which notice is required to be published cannot control the interpretation of substantive provision contained in Section 5(3), which casts a duty MSM,J WP_534_2020 15 on recording authority to issue notice in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the proposed amendment. (vide: "Chinnam Pandurangam v. Mandal Revenue Officer, Serilingampally Mandal and others1").
In view of the principle laid down in the above judgment, certain procedure prescribed under Section 5 of the Act and proviso thereto is mandatory.
When the respondent Nos.7 and 8 submitted intimation in compliance of Section 4 of the Act, the procedure prescribed in Section 5 of the Act read with Rule 19 of the Rules is to be followed. Issue of notice in Form VIII vide Rule 19 (1) of the Rules and its publication vide Rule 19 (2) of the Rules framed is only in compliance of mandatory procedure prescribed under the Act. Respondent Nos.2 to 6 though not required to decide the title of the immovable property, still they are bound to follow the procedure. When a person files an application for correction of passbook, he cannot be asked to file a civil suit on the ground that some third party has raised the question of adverse possession. The authorities cannot escape from their responsibility to make an entry or amend the entries in the revenue records according to the procedure; though they cannot decide the title and possession, but they should exercise their power subject to any decree or order passed by Civil Court in view of the law laid down by the Division Bench of the High Court of Andhra Pradesh at Hyderabad in "R.S.Murthy v. Joint Collector, East Godavari District, Kakinada2". Hence, publication of notice in Form VIII is only in compliance of statutory obligation, but not for 1 AIR 2008 AP 15 (F.B) 2 2001 (4) ALT 337 (D.B.) MSM,J WP_534_2020 16 extraneous reasons as attributed by the petitioner as it is not substantiated by any material. Therefore, I find no ambiguity in the notice or statutory violation in publication of notice in Form VIII under Rule 19 of the Rules. Consequently, the impugned notice cannot be declared as illegal and arbitrary. Accordingly, the point is answered in favour of the respondents and against the petitioner. P O I N T Nos.2 and 3:
These two points are interconnected to one another. Therefore, I find that it is appropriate to decide both the points by common discussion.
It is an undisputed fact that the petitioner filed O.S.No.132 of 1995, obtained decree in the trial Court, but on challenge before the appellate Court, the decree was reversed. Though the petitioner obtained sale deed during pendency of the suit, the application filed by Kundrapu Kondadu for withdrawal of suit on account of execution of sale deed by invoking under Order XXIII Rule (1) of C.P.C. was also rejected by the Court, but still the sale deed executed by Kundrapu Kondadu in favour of the petitioner remained as it is. Within few days, after execution of registered sale deed in favour of the petitioner, he allegedly executed another sale deed in favour of respondent Nos.7 and 8. They also filed an application to implead in the appeal A.S.No.986 of 2001, and opposed the application filed for withdrawal of appeal by Kundrapu Kondadu, and the appeal was heard on merits along with C.M.A.No.772 of 2006 filed by the petitioner, but the C.M.A.No.772 of 2006 filed by the petitioner was dismissed. Respondent Nos.7 and 8 succeeded in their attempt to oppose the petition filed by Kundradpu Kondadu under Order XXIII Rule 1 of C.P.C. The petitioner also submitted an application under Section 4 of the Act to Revenue Divisional Officer, which ended in MSM,J WP_534_2020 17 dismissal while directing the petitioner to approach the competent civil Court to obtain necessary declaration of title to the property and the same was confirmed by the revisional authority under Section 9 of the Act. Hence, the findings recorded by Revenue Divisional Officer and confirmed by the Joint Collector on the application of the petitioner attained finality. Till date, the petitioner did not file any suit for declaration of title, obtained any decree for declaration of title so as to enable the respondent Nos.2 to 6 to mutate the name of the petitioner. On the other hand, respondent Nos.7 and 8 filed O.S.No.357 of 2004, pending on the file of II Additional District Judge, Visakhapatnam for declaration of title, perpetual injunction and to declare the sale deed allegedly executed by Kundrapu Kondadu in favour of the petitioner as collusive and nominal. One of the contentions of the petitioner is that when once the suit is pending and the petitioner was directed to obtain decree of declaration of title on the application he made, the same procedure has to be adopted in case of respondent Nos.7 and 8 also. This contention cannot be accepted for the reasons that the Mandal Revenue Officer/Tahsildar on receipt of intimation under Section 4 of the Act, has to follow the procedure under Section 5 of the Act by issuing notice in Form VIII vide Rule 19 of the Rules; that too any mutation is only a prima facie proof of tile and it is always subject to decree in a suit passed by the competent Court. In "R.S.Murthy v. Joint Collector, East Godavari District, Kakinada" (referred supra), the Court clearly held that exercise of power is always subject to any decree or order passed by the Civil Court. Hence, issue of notice in Form VIII having reason to believe that there is prima facie acquisition of title in the immovable property is subject to decree or order passed by the Civil Court.
MSM,J WP_534_2020 18 Initiation of proceedings under the Act to mutate the names of unofficial respondents is only for limited purpose and mutation will not create or confer any right, title or interest in the immovable property. In case, respondent Nos.7 and 8 failed to substantiate their claim before the Civil Court, the petitioner is always at liberty to approach the authorities for necessary mutation or the petitioner may approach the competent Civil Court to obtain a decree regarding his title, so as to enable the authorities to mutate his name in the revenue records. Hence, pendency of O.S.No.357 of 2004 on the file of II Additional District Court, Visakhapatnam will not come in the way of initiation of proceedings under Section 5 of the Act by issuing notice in Form VIII and its publication vide Rule 19 of the Rules on receipt of intimation under Section 4 of the Act from respondent Nos.7 and 8.
Undisputedly, when the petitioner made an application, a direction was given by the Revenue Divisional Office to approach the Civil Court, obtain a decree. The same was confirmed by the revisional authority - Joint Collector in R.P.No.7/05/D2. Though the suit filed by the petitioner was dismissed, the deed of conveyance executed in favour of the petitioner is not yet set aside, it is the subject matter of Civil Suit O.S.No.357 of 2004 on the file of the II Additional District Judge, Visakhapatnam. It appears, respondent Nos.2 to 6 adopted different scales in considering the application of the petitioner and respondent Nos.7 and 8. But the notice issued in Form VIII is only preliminary consideration of the intimation submitted under Section 4 of the Act to the Tahsildar/Mandal Revenue Officer. However, it is difficult to expect a favourable order to the respondent Nos.7 and 8 even after completion of enquiry by MSM,J WP_534_2020 19 following the procedure under Section 5 of the Act read with Rule 19 and Rule 15 and 16 of the Rules, which mandates an enquiry. Hence, at this stage, this Court cannot scuttle the authorities to exercise their statutory power on account of pendency of the suit O.S.No.357 of 2004 on the file of the II Additional District Court, Visakhapatnam on the ground that the application of the petitioner was rejected while directing him to approach competent Civil Court, the same was confirmed by the revisional authority. Hence, I find no merit in the contention of the petitioner and the same is hereby rejected.
In view of my foregoing discussion, I find no merit in the contentions of the petitioner to set aside the notice issued and published in Form VIII in compliance of Rule 19 of the Rules by following the procedure under Section 5 of the Act, on receipt of intimation under Section 4 of the Act. Similarly, I find no ground to grant stay of further proceedings in pursuance of the notice issued in Form VIII, published under Rule 19 of the Rules on account of pendency of the Civil Suit O.S.No.357 of 2004 on the file of the II Additional District Court, Visakhapatnam for the simple reason that mutation, if any, is subject to decree or order that may be passed by competent civil Court in the pending suit. Consequently, the writ petition is liable to be dismissed.
In the result, the writ petition is dismissed. No costs. The miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 19.03.2020 Ksp Note:
Issue C.C. today B/o Ksp