HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.4856 of 2002 Date 02.08.2010 Between: Govind Rao. ..... PETITIONER AND The Joint Collector, Adilabad, Adilabad District & others. .....RESPONDENTS Counsel for the Petitioner : Sri V.Ravinder Rao Counsel for Respondent Nos.1 and 2 : AGP for Revenue Counsel for Respondent Nos. 4 to 9 : Sri K.Manik Prabhu HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.4856 of 2002 ORDER: This Writ Petition is filed for a Certiorari to quash the order dated 06.10.2001 of respondent No.1. One Amruthrao Pardikar was the original owner of the property admeasuring Ac.15.20 gts. of Bhainsa Village and Mandal, Adilabad District. Rajeshwar Rao Pardikar was his son. He had two sons by name Shankar Rao and Balwant Rao. Shankar Rao had a son by name Rajeshwer Rao, who is respondent No.3. Balwant Rao had two sons who are petitioner and respondent No.10. Respondent Nos.4 to 9 are the legal representatives of respondent No.3 who has died during the pendency of the litigation. The above mentioned land is admittedly an inam land. Respondent No.3 made an application before respondent No.2 for grant of Occupancy Right Certificate (ORC) for the said land. By his order dated 05.10.1976, respondent No.2 granted ORC in favour of respondent No.3. The petitioner filed an appeal before respondent No.1. Vide his order dated 16.04.1988, respondent No.1 allowed the appeal and remanded the matter to respondent No.2. Questioning the said order, respondent No.3 filed W.P.No.9230 of 1988, which was allowed by this Court by order dated 28.02.1988 directing respondent No.1 to consider the condone delay petition filed by the petitioner first, before deciding the case on merits. By his order dated 20.06.1998, respondent No.1 condoned the delay, considered the case on merits and again reiterated his earlier order remanding the matter to respondent No.2. After remand, respondent No.2 again reiterated his earlier decision by granting ORC in favour of respondent No.3 through his order dated 29.12.1999. Feeling aggrieved by the said order, the petitioner filed an appeal before respondent No.1 which was rejected by his order dated 06.10.2001. Questioning the said order, the petitioner filed the present writ petition. At the hearing Sri V.Ravinder Rao, Learned counsel for the petitioner, submitted that the decision of respondent No.2, as confirmed by respondent No.1, cannot be sustained in law. He contended that respondent No.1, having found that respondent No.3 and others constituted a joint family, committed a serious error in not incorporating all the coparceners’ names of the joint family and that he has completely ignored the definition of ‘inamdar’ under Section 2(d) of the A.P.(Telangana Area) Abolition of Inams Act, 1955 (for short ‘the Act’). Sri K.Manik Prabhu, Learned counsel for respondent Nos. 4 to 9, opposed these contentions and submitted that as his client, respondent No.3, was found in personal cultivation of the land as on 01.11.1973, the relevant date for granting ORC, both the fora below have rightly granted ORC in favour of respondent No.3. I have carefully considered the submissions of the learned counsel for the parties and perused the record. In the order passed by respondent No.1, he has observed that under Section 4(1) of the Act, every inamdar has to be registered as an occupant of all the inam lands which were under his personal cultivation on the crucial date i.e. 01.11.1973, that respondent No.3 alone applied for ORC over the lands in question and that the petitioner has neither approached the authorities nor filed any application for grant of ORC. He has further observed that it was the duty of every inamdar to file their claim for issue of ORC, that the suit lands were shown in the verification report in respect of declaration filed by respondent No.3 in CC.No.M/1041/75 and it is evident therefrom that he has held the lands in question even on 01.01.1975. Respondent No.1 also held that though the suit lands were jointly held by the parties before him, they were actually under personal cultivation of respondent No.3 on 01.11.1973 and, therefore, respondent No.2 had issued ORC in his name and that it is open to the petitioner and other coparceners to file a civil suit for redressal of their grievances. To appreciate the contentions of the learned counsel for the parties, it is necessary to refer a few relevant provisions of the Act. Section 2(d) defined ‘inamdar’ as a person holding as inam or a share therein, either for his own benefit or in trust and includes the successor in interest of an inamdar, and- (i) where an inamdar is a minor or of unsound mind or an idot, his lawful guardian, (ii) where an inamdar is a joint Hindu family, such joint Hindu family; Under Section 3, all inams are abolished and all rights and interest vesting in the inamdar etc. shall cease and be vested absolutely in the State free from all encumbrances. Section 4 envisages registration of inamdars as occupants in respect of the lands other than those which are excluded in clauses (a) to (c) of the said provision to which immediately before the date of vesting, were under his personal cultivation and which, together with any lands he separately owns and cultivates personally are equal to four and a half times the family holding. Before respondent No.1, while the petitioner has contended that the property in question was the joint family property, respondent No.3 has maintained that there was an oral partition by virtue of which he was in exclusive and personal occupation of the same under unregistered partition deed. The fact however remains that the pahanies for the year 1973, which is the relevant year, mentioned the names of both the branches namely, the names of respondent Nos.3 and 10, the petitioner and his father in column No.11. Further, in possession column, the names of respondent No.3 and his father are mentioned. While there was a serious dispute as to the status of the joint family, a finding has however been given by respondent No.1 that the suit lands were jointly held by both the parties, but, however, as respondent No.3 and his father were found to be in personal cultivation of the land, respondent No.2 was justified in granting ORC in favour of respondent No.3 alone. The law as to the constructive possession in the case of Hindu coparcenery is well settled. I n Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee[1], the Supreme Court held that the appellants who were not in actual possession were deemed to be in constructive possession through the plaintiff in view of their status as co-sharers. In Darshan Singh v. Gujjar Singh[2], the Supreme Court held as under: “In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possess the property on behalf of the other co- sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue record in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of other co-sharers was denied.” (emphasis supplied) The above settled legal position manifested itself by the very inclusive definition of inamdar in Section 2(d) of the Act which envisages that where an inamdar is a joint Hindu family, such joint Hindu family shall be the inamdar. Having regard to this indisputable legal position, I am of the opinion that granting ORC in favour of respondent No.3 alone on the ground that in possession column he was found in personal cultivation cannot be sustained in law. Apart from the finding of respondent No.1 that there was a joint Hindu family, as noted above, the pahanies for the year 1973 itself contain the names of both the branches in title column. It is also not in dispute that the Inam Register also contains all the names. This being the undisputed position, respondent Nos. 1 and 2 have ignored the settled legal position in law. The petitioner, being a coparcener in the joint Hindu family, is in constructive possession though respondent No.3 and his father were in actual possession of the property. My view of this stands further fortified by the judgment of the Supreme Court in N.Padmamma and Others v. Krishna Reddy[3], wherein the Apex Court disagreed with the view in its earlier judgment in Lokraj v. Kishan Lal[4], holding that unless an ORC is granted in favour of a person, he cannot file a suit for partition as all the inam rights stand abolished under the Act. In that case, a coparcener in whose favour ORC was not granted has filed a suit for partition. The question which arose in that case was whether such a suit was maintainable in view of the judgment of the Supreme Court in Lokraj (4 supra). While differing with the view taken in the said case, the Supreme Court has referred the said case to the Larger Bench. However, in the process, the Apex Court held that merely because a manager or coparcener was found in actual possession of the property, the rights of other coparceners cannot be defeated under the Law of Succession. Paras 9 and 10 of the judgment elucidate the position in law which are reproduced herein below: “In terms of Section 3 of the Act all inam lands vest in the State of Andhra Pradesh with effect from 20th July, 1955. Occupancy right as contemplated under Section 8 of the Act, however, was to be granted with effect from 1st November, 1973. No doubt, grant of such occupancy right is hedged with conditions as mentioned in Section 8 read with Section 10 of the Act; personal cultivation and possession inter alia being the relevant condition for grant of such right. What would be the meaning of the ‘personal cultivation’ and ‘possession’ is the question. The properties were in possession of S.Ramachandra Reddy despite the vesting of the land. Upon his death the parties hereto inherited his right, title and interest in the properties. Respondent No.1 being the only male member, assuming he had been cultivating the said land, must be held to have been doing so for and on behalf of the members of the joint family. There were 14 items of joint family properties. They were living in a house. There is no dispute in regard to item Nos. 7 to 14. Item Nos.1 to 6 of the Schedule of the Plaint only were the subject-matter of the said Act.” For the above mentioned reasons, I am of the view that the orders of respondent Nos.1 and 2 cannot be sustained in law and they are accordingly quashed. Respondent No.2 is directed to issue a fresh ORC incorporating the names of the petitioner and respondent Nos. 4 to 10. However, the parties are left free to agitate before the competent Civil Court for their respective shares in the property by initiating appropriate proceedings in accordance with law. The Writ Petition is accordingly allowed. As a sequel to disposal of the main petition, WPMP.Nos.6105 of 2002 and 33835 of 2007 filed by the petitioner for interim relief are disposed of as infructuous. C.V.NAGARJUNA REDDY, J Date:02.08.2010 Note:LR copy to be marked. Usd [1] AIR 1971 SC 2251 [2] AIR 2002 SC 606 [3] 2008(6) ALD 1(SC) [4] 1995(3) SCC 291