HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.25153 & 22855 of 2008 Date : 22.07.2011 Between : G.C.Somi Reddy & another. …..Petitioners And The Commissioner, Appeals, Office of The Chief Commissioner of Land Administration, A.P. & others. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.25153 & 22855 of 2008 COMMON ORDER: Both these writ petitions are filed, questioning the order dated 26.09.2008, passed by the Chief Commissioner of Land Administration, Andhra Pradesh, in Proceedings No.BCWS/46/08, as such, they are heard together and are being disposed of by this common order. By the aforesaid order, the Commissioner (Appeals) has set aside the order, dated 13.12.2006, passed by the Joint Collector-cum-Additional District Magistrate, Kurnool, in Rc.No.E3/2483/2005, and remitted the matter to the said authority to conduct a de nova inquiry, survey the land and consider regularisation of the land covered by Sy.No.137 of Gudipadu village of Gudur Mandal, Kurnool District, in the names of claimants. 2. Necessary facts in brief, are as under : There is a land admeasuring Ac.2.68 cents in Sy.No.137 of Gudipadu village of Gudur Mandal in Kurnool District. The said land is classified as a village site poramboke, out of which, an extent of Ac.1.00 cents is covered by water body (Kunta), and in the remaining extent of Ac.1.68 cents, a portion of land is covered by rasta and remaining extent is in encroachment of petitioners, respondent No.6 and others. The encroachers were in possession of the said land by way of huts, straw yards, manure pits, etc. When notices for eviction were issued by the authorities of the revenue department, at first instance, a suit was filed in O.S.No.414 of 1978 on the file of the learned Principal District Munsiff, Kurnool, for declaration of title and for injunction. The said suit was filed on behalf of 33 persons, and it is not in dispute that respondent No.6 was one of the parties to it. In the aforesaid suit, the plea of plaintiffs was that all the encroachers, numbering about 33, including respondent No.6 herein, were in possession of the aforesaid land for more than 100 years and they have perfected their title by adverse possession. Subsequently, the said suit was dismissed as withdrawn and another suit was filed in O.S.No.289 of 1982 on the file of the learned II Additional District Munsiff, Kurnool, in representative capacity. The said suit was filed by two persons, namely, Boya Naganna and G.Thimma Reddy on their behalf and on behalf of 16 others, claiming that they are in occupation of the said land and they have perfected their title by adverse possession. The said suit in O.S.No.289 of 1982 is decreed by the learned II Additional District Munsiff, Kurnool, by a judgment and decree dated 26th March 1987, by holding that the plaintiffs therein are entitled for declaration of title in respect of the land covered by Sy.No.137 to the extent of their possession and consequently granted injunction. The aforesaid suit was filed by making the District Collector, Kurnool, Revenue Divisional Officer, Kurnool and the Tahsildar, Kodumur Taluk at Gudur, as defendants. 3. Basing on the said declaration given in O.S.No.289 of 1982 by the learned II Additional District Munsiff, Kurnool, the plaintiffs approached the Joint Collector-cum-Additional District Magistrate, Kurnool, seeking regularisation of encroachments. On their claim for regularisation, reports were called for from the Mandal Revenue Officer, Gudur and the Revenue Divisional Officer, Kurnool. It appears, in the said proceedings, reports were sent by the Mandal Revenue Officer on 24.07.2005, 02.02.2006 and 22.11.2006. There was also a report from the Revenue Divisional officer, Kurnool on 02.09.2006. Referring to such reports and also the judgment of the learned II Additional District Munsiff, Kurnool, dated 26.03.1987 in O.S.No.289/1982, the learned Joint Collector-cum-Additional District Magistrate, Kurnool, vide Proceedings No.Rc.E3/2483/2005, dated 13.12.2006, ordered for regularisation to an extent of Ac.0.46 cents on free of cost and the remaining extent of Ac.1.15 cents, by collecting market value at the rate of Rs.41,000/- per acre. 4. The 6th respondent herein has questioned the orders of the Joint Collector-cum-Additional District Munsiff, dated 13th December 2006, passed in Rc.E3/2483/2005, by way of appeal before the Commissioner (Appeals). It was the case of respondent No.6 before the appellate authority that all the occupants, who are in encroachment of the aforesaid land, are entitled for regularisation, including his claim. Mainly, it was the case of respondent No.6 that before ordering regularisation, no proper inquiry was conducted to ascertain the exact extents of land and number of encroachments, and by mis-construing the judgment and decree passed in O.S.No.289 of 1982, and based on the incorrect reports sent by the Mandal Revenue Officer and the Revenue Divisional Officer, regularisation orders are issued by the Joint Collector. The appellate authority, by recording a finding that there were no findings recorded by the trial Court with regard to the extents owned by the various claimants and also holding that the revenue authorities at Mandal level have arrived at the extents held by each encroacher without conducting proper survey and without examining the revenue records, has allowed the appeal and set aside the orders passed by the Joint Collector-cum-Additional District Munsiff, dated 13.12.2006, passed in Proceedings Rc.No.E3/2483/ 2005, and remitted the matter for fresh consideration by the Joint Collector, directing him to conduct de nova inquiry by surveying the land by giving reasonable opportunity to all the interested parties and to take a decision as per Rules. The said order of the appellate authorities is challenged in these writ petitions. 5. Heard Smt.Bobba Vijayalakshmi, learned counsel appearing for petitioners in W.P.No.25153 of 2008, Smt.K. Lalitha, learned counsel appearing for petitioners in W.P.No.22855 of 2008, learned Government Pleader for Revenue, appearing for respondents 1 to 5 in both the writ petitions and Sri N.Vidya Prasad, learned counsel appearing for respondent No.6 in both the writ petitions. 6. In W.P.No.25153 of 2008, it is mainly contended by the learned counsel for petitioners Smt. Bobba Vijayalakshmi, that in view of the judgment and decree passed in O.S.No.289 of 1982, it is not open for the appellate authority to unsettle the issues which are decided by the Civil Court. It is contended by her that the Commissioner (Appeals), under the guise of entertaining an appeal filed by the 6th respondent, cannot sit over the findings recorded by the civil Court, in which, relief of declaration of title and injunction was granted in O.S.No.289 of 1982 by the learned II Additional District Munsiff, Kurnool. It is further submitted that the suit was decreed as early as on 26th of March 1987, and since then, at no point of time, respondent No.6 has questioned the same and once the regularisation orders are issued in compliance of the declaration issued by the Civil Court, respondent No.6 has filed the present appeal before the Commissioner of Appeals, which is erroneously allowed by the appellate authority by impugned order. 7. Similarly, Smt. K.Lalitha, learned counsel appearing for petitioners in W.P.No.22855 of 2008, while adopting the arguments of learned counsel for petitioners in W.P.No.25153 of 2008, further contended that the petitioners in W.P.No.22855 of 2008 were not even made parties in the appeal filed by respondent No.6, and inspite of the same, without giving an opportunity of hearing, the appellate authority allowed the appeal by setting aside the order of the Joint Collector, dated 13th December 2006. 8. On the other hand, it is submitted by the learned Government Pleader appearing for respondents 1 to 5 in both the writ petitions that as much as there is discrepancy with regard to the individual extents of land covered by Sy.No.137, the appellate authority has remitted the matter and ordered for fresh consideration by surveying the land. It is submitted by the learned counsel that as there is no uniformity in the reports sent by the Mandal Revenue Officer, there is no illegality in the order passed by the appellate authority in remitting the matter for fresh consideration by the Joint Collector. 9. Sri N.Vidya Prasad, learned counsel appearing for respondent No.6 in both the writ petitions, would contend that though Ac.1.68 cents is in occupation of about 33 persons, by mis-construing the judgment rendered in O.S.No.289 of 1982, dated 26th March 1987, the Joint Collector has ordered for regularisation, relying on the reports of the Mandal Revenue Officer and the Revenue Divisional Officer, which were prepared without conducting proper survey and which were contrary to the ground reality. It is further submitted by the learned counsel that the first suit in O.S.No.414 of 1978 was filed on behalf of all the 33 persons who are in occupation of the land including the land claimed by the 6th respondent, but the subsequent suit in O.S.No.289 of 1982 was filed by two persons, representing 16 others, claiming exclusive possession. It is submitted that in the judgment rendered by the civil Court in O.S.No.289 of 1982, the individual extents covered by various encroachments were nowhere dealt with. It is further submitted that the declaration of title was granted in favour of plaintiffs in the suit in O.S.No.289 of 1982, only to the extent of land in their respective possession, and in that view of the matter, it cannot be said that the impugned order passed by the appellate authority is contrary to the judgment rendered by the civil Court. It is submitted that as the claims of all the occupants and their individual extents were never examined, no proceedings could have been issued by the Joint Collector for regularisation of entire land in favour of only 18 persons. It is submitted that though majority of claimants died, in the absence of any legal representatives claiming regularisation, orders could not have been issued by the Joint Collector. Learned counsel would contend that reports sent by the authorities are contradictory and contrary to the extents shown in B- Memos, as such, the appellate authority has ordered for de nova inquiry by setting aside the order, dated 26.09.2008. It is further submitted that as respondent No.6 was not given notice even by the primary authority, and in view of the directions issued by the appellate authority, no prejudice will be caused to the petitioners so as to seek for setting aside the orders of the appellate authority. It is further submitted that in view of the directions issued by the appellate authority directing the Joint Collector to consider the matter afresh, no interference is required in such directions. 10. Having heard the learned counsel for the parties, I have carefully gone through the impugned order dated 26.09.2008, passed in proceedings No.BCW5/46/08 and the order of the Joint Collector, dated 13.12.2006, issued in Proceedings Rc.No.E3/2483/2005 and also the judgment in O.S.No.289 of 1982, dated 26th March 1987, rendered by the learned II Additional District Munsiff, Kurnool. 11. Mainly, it is the case of petitioners in these writ petitions that the impugned order of the appellate authority is passed to unsettle the claims, which are already settled by virtue of the judgment and decree passed by the civil Court in O.S.No.289 of 1982. It is not in dispute that prior to filing of the suit in O.S.No.289 of 1982, a suit was filed in O.S.No.414 of 1978 on the file of Principal District Munsiff, Kurnool, and the said suit was preceded by a notice under Section 80(1) of the Civil Procedure Code. The 6th respondent is 18th plaintiff in the suit in O.S.No.414 of 1978 and his Uncle is 19th plaintiff in the said suit. In the notice issued under Section 80(1) of the Act, it was specifically pleaded that 26 claimants were in possession of the land in Sy.No.137. It is true that the said suit was subsequently withdrawn and the suit in O.S.No.289 of 1982 was filed by two individuals by name, Boya Naganna and G.Thimma Reddy, on their behalf and also on behalf of 16 others, but respondent No.6 herein is not a party to the said suit. In the said suit, a declaration is granted only to the respective extents of plaintiffs and there is no finding with regard to the individual extents claimed by them. In view of the claim of respondent No.6 herein, who claims that he is also in possession to an extent of Ac.0.09 cents and also succeeded to the rights of his Uncle to the extent of another Ac.0.09 cents, he is not even made party to the said suit. In that view of the matter, it cannot be said that the findings recorded in the aforesaid judgment are binding on the 6th respondent. On the other hand, it is his specific case that one G.Narayana Reddy alias Uravakiti Narayana Reddy was in possession of Ac.0.32 cents only, as such, in view of his death, his legal heirs G.Gidda Reddy, G.Pedda Somi Reddy and G.C.Somi Reddy, are entitled to shares only from an extent of Ac.0.32 cents, but curiously, in the absence of clear evidence to show that these three claimants are in possession of Ac.0.32 cents each, the primary authority has ordered regularisation to an extent of Ac.0.32 cents each in the aforesaid survey number, apart from the regularisation ordered in favour of other claimants. In the report sent by the Mandal Revenue Officer, dated 24.07.2005, in the remarks column, it is shown that several claimants were died among the 18 persons, who are said to be plaintiffs in O.S.No.289 of 1982, inspite of the same, in the absence of showing their legal representatives as claimants, regularizations were ordered in the name of dead persons. In the report, dated 02.02.2006, sent by the Mandal Revenue Officer to the Collector, Kurnool, it is clearly stated that cases were registered by issuing B-Memos against 33 persons, who are in possession of the land in question. In the report sent by the Mandal Revenue Officer to the District Collector, Kurnool, dated 31.07.2006, through the Revenue Divisional Officer, Kurnool in Rc.B.145/2005, the extent which is said to be in possession of Sri G.Narayana Reddy was shown as only Ac.0.32 cents and Sri G.Gidda Reddy, Sri G.C.Somi Reddy and Sri G.P.Somireddy, are shown as legal heirs to the said G.Narayana Reddy. But coming to the orders of the Joint Collector, regularisation is ordered in three shares of Ac.0.32 cents each, for which, there appears no basis. In the said report, the extent of land held in possession of respondent No.6 and his Uncle is also shown as Ac.0.09 cents each. Apart from the aforesaid reports, from the material placed on record on behalf of respondent No.6 i.e. copies of Adangals also show that respondent No.6 was in possession of Ac.0.09 cents and his Uncle in another Ac.0.09 cents. In the said Adangals, so far as Late G. Narayana Reddy is concerned, his possession is shown only to an extent of Ac.0.32 cents. The above said material establishes that respondent No.6 was in possession of a portion of land, which is part of the regularisation proceedings issued by the Joint Collector. In view of the declaration granted by the civil Court only to the extent of possession held by the plaintiffs in the suit in O.S.No.289 of 1982, the Joint Collector-cum-Additional District Magistrate has clearly erred in ordering regularisation to the entire extent in favour of 18 persons, who are said to be the plaintiffs in the suit. It is also borne out from the record that the suit in O.S.No.289 of 1982 was filed by two plaintiffs on behalf of 16 others, but it is not clear as to who are the said 16 other persons on whose behalf the suit is filed. In any event, as respondent No.6 is not made party to the said suit, even such a declaration granted by the civil Court is not binding on him. As evident from the orders of the appellate authority, it is clear as to how the authorities at Mandal level have arrived at the extents held by each claimant, without conducting proper survey. The regularisation orders issued by the Joint Collector appears to be contrary to the material on record, namely, Adangals and B-memos. It is also clear from the reports that several claimants have died and inspite of the same, without bringing their legal representatives on record, in a routine manner, orders were passed for regularisation, purported to be in compliance of adjudication by a civil Court in the suit in O.S.No.289 of 1982. In view of the discrepancies in the extents held by the claimants and in the absence of any finding in the suit in O.S.No.289 of 1982 with regard to the extents held by individual encroachers, this Court is of the view that it cannot be said that the order of appellate authority is contrary to the findings recorded in the suit in O.S.No.289 of 1982, as in the said judgment, there is no description with regard to the individual extents held by plaintiffs in the said suit, and as the declaration is granted by the civil Court only to the extent of extents which are in possession of plaintiffs, I do not find any illegality in the order passed by the appellate authority. In any event, it is to be seen that while setting aside the order, dated 13th December 2006, the appellate authority has ordered for de nova inquiry and to survey the land to ascertain the encroachments so as to take further steps in the matter. By virtue of such a direction, no prejudice is caused to any of the claimants. Although it is also the case of petitioners in W.P.No.22855 of 2008 that they were not put on notice before passing orders by the appellate authority, it is be noticed that though there is abundant material to show that respondent No.6 in both the writ petitions is in possession of certain extent of land, without giving any opportunity to him, the orders of regularisation are passed. In that view of the matter, as this Court is of the view that any interference with the impugned order of the appellate authority will result in revival of another illegal order, which itself is passed in violation of the principles of natural justice insofar as the claim of respondent No.6 is concerned, this Court cannot interfere on the said ground alone. This Court is always slow in exercising jurisdiction under Article 226 of the Constitution of India, if any interference will result in revival of another illegal order. As much as the matter is remitted back for fresh consideration, on the mere ground that the petitioners in W.P.No.22855 of 2008 were not put on notice before passing of order by the appellate authority, the said order cannot be set aside. 12. For the aforesaid reasons, I do not find any merit in these writ petitions, to interfere with the order of the Chief Commissioner of Land Administration, Andhra Pradesh, passed in Proceedings No.BCW5/46/08, dated 26.09.2008. Both the writ petitions are accordingly dismissed. No costs. _____________________ R.SUBHASH REDDY, J 22nd July 2011 ajr