THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.20416 OF 2008 DATED FEBRUARY, 2011 BETWEEN Smt.Madhavaram Sujathamma …Petitioner And The Joint Collector (I), R.R.District, Office at Lakdikapool, Hyderabad and others. …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.20416 OF 2008 ORDER: In exercise of revisionary power under Section 9 of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971, the Joint Collector-I, Ranga Reddy District, reversed the orders of the authorities below. Hence, this writ petition by the aggrieved respondent in the revision. The petitioner applied to the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal, Ranga Reddy District, the third respondent, under Section 5-A of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (for brevity, ‘the Act of 1971’) seeking regularization of the unregistered sale deed dated 05.12.1980 said to have been executed in her favour by the fourth respondent herein in respect of Ac.3.30 guntas in Survey No.589/3, Ac.0.03 guntas in Survey No.590/2 and Ac.0.02 guntas in Survey No.591/2 of Nadergul Village, Saroornagar Mandal, Ranga Reddy District. This application was made some time in the year 1992. Thereupon, the third respondent issued notice in Form-XI to the fourth respondent calling upon him to produce necessary evidence bearing upon the subject alienation. According to the petitioner, the fourth respondent appeared before the third respondent and his statement was recorded by the third respondent on 02.02.1994. Therein, the fourth respondent admitted the sale in favour of the petitioner under the unregistered transaction of 1980. He also admitted handing over the lands to the petitioner and certified that the petitioner was in possession of the lands at that point of time. He expressed no objection to the transfer of the subject lands in the name of the petitioner. Thereupon, the third respondent issued notice in Form-XIII(A) dated 03.02.1994 calling upon the petitioner to pay the necessary stamp duty and registration fee. The same was paid by the petitioner under challan dated 05.02.1994. The third respondent accordingly issued a certificate in Form-XIII(B) dated 07.02.1994 declaring that the alienation in favour of the petitioner was valid from that date. The same was communicated in Form-XIII(C) to the Sub Registrar concerned. Basing on the above, mutation was also carried out in the revenue records in favour of the petitioner in respect of the subject lands and she was issued a pattadar pass book in the year 1994 in accordance with the provisions of the Act of 1971. The petitioner stated that the original title deed in respect of Ac.0.03 guntas in Survey No.590/2 and Ac.0.02 guntas in Survey No.591/2 of Nadergul Village, Saroornagar Mandal, Ranga Reddy District, being registered sale deed bearing document No.2095 of 1980 dated 25.02.1980, was handed over to her by the fourth respondent. However, as regards the original title deed for the extent of Ac.3.30 guntas in Survey No.589/3 of Nadergul Village, Saroornagar Mandal, it is her case that the fourth respondent claimed the said document was misplaced and executed a notarized affidavit dated 16.06.1994 stating to that effect, duly certifying therein that he had not deposited the original document with any individual or institution or association for creating any charge on the property and that it was free from any charge, third party interest or litigation. The petitioner however stated that upon her enquiry into the matter, it was revealed that the fourth respondent had deposited the title deed of the said property with Andhra Pradesh Mahesh Co-operative Urban Bank Limited, Hyderabad, when he stood as a guarantor for a loan availed by one Sanjay Kumar Joshi. She claimed that she applied to the Bank bringing the facts to its notice and thereupon negotiated a One Time Settlement, whereby she paid a sum of Rs.1,58,216.20 ps. by way of cheque No.304211 dated 27.12.2003 drawn on Canara Bank, Uppal Branch, from her son’s account and got the property discharged from the equitable mortgage. While so, after a long lapse of eleven years, in the year 2005 the fourth respondent filed an appeal under Section 5-B of the Act of 1971 before the Revenue Divisional Officer (East Division), Ranga Reddy District, the second respondent, challenging the regularization of the sale deed dated 05.12.1980. The second respondent, taking note of the fact that the third respondent had followed the due procedure while regularizing the unregistered sale deed dated 05.12.1980 and the fourth respondent was issued notice as required and his statement was also recorded, rejected his contention that he was not given any notice. Further, as the appeal was barred by limitation as it had not been filed within the stipulated time, the second respondent dismissed the appeal by order dated 23.07.2007. Aggrieved thereby, the fourth respondent filed a revision before the Joint Collector-I, Ranga Reddy District, the first respondent. The first respondent, upon considering the matter, was of the opinion that as the land in question was mortgaged with a Bank as collateral security, its sale in favour of the petitioner was illegal. He accepted the fourth respondent’s claim that he had not sold the land to the petitioner and held that as there was a title dispute and the execution of the sale deed was in question, the authorities below could not have passed orders in favour of the petitioner. He accordingly set aside the said orders, directing the parties to approach the Civil Court to prove their title. Challenging this order dated 06.09.2008, the petitioner is before this Court. Interim suspension of the order under challenge was granted by this Court on 19.09.2008. The same was made absolute on 06.10.2010 while dismissing the vacate stay petition filed by the fourth respondent. Heard Sri D.Prakash Reddy, learned senior counsel representing Sri G.Vivekanand, learned counsel for the petitioner and Dr.Muddu Vijai, learned counsel for the fourth respondent. Though this Court ordinarily would not venture into the factual realm in a matter arising under the Act of 1971, keeping in mind the delay of 11 years in the filing of the appeal by the fourth respondent in the present case, his bona fides necessarily have to be tested on facts and consequently, his conduct becomes germane. The facts would also have to be examined to ascertain the truth behind the allegations now made by the fourth respondent and to verify whether there was any material irregularity in the exercise of revisionary jurisdiction by the first respondent warranting interference by this Court under Article 226 of the Constitution. The material placed on record clearly evidences that the due procedure stipulated in Section 5-A of the Act of 1971 read with Rule 22 of the Andhra Pradesh Rights in Land and Pattadar Pass Books Rules, 1989 (for brevity, ‘the Rules of 1989’) was scrupulously followed by the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal, the third respondent, while effecting the regularization of the petitioner’s unregistered title deed dated 05.12.1980. Sri D.Prakash Reddy, learned senior counsel, argued that the sequence of the events clinchingly established the petitioner’s case. He pointed out that record was available to bear out each and every step taken by the third respondent during the process of effecting regularization of the unregistered sale deed under Section 5-A of the Act of 1971. Similarly, the repayment of the loan by the petitioner to the Andhra Pradesh Mahesh Co-operative Urban Bank Limited, Hyderabad, is also borne out by record. He pointed out that the correspondence of the said Bank with the loanee, Sanjay Kumar Joshi, was addressed care of the petitioner at her residence address. This, the learned senior counsel asserted, clearly proved that it was the petitioner who negotiated with the Bank and settled the loan account for the release of the property from the charge. He also drew the attention of the Court to the Bank Account statement of the petitioner’s son reflecting the debit of Rs.1,58,216/- in favour of the Andhra Pradesh Mahesh Co-operative Urban Bank Limited, Hyderabad, being the sum due for closure of the loan account settled by the petitioner. The learned senior counsel further contended that the inaction on the part of the fourth respondent for 11 years clearly reflected that he was assailing the regularization belatedly for extraneous considerations. Learned senior counsel contended that the fourth respondent successfully developed a different case altogether before the revisionary authority. He argued that the understanding of the revisionary authority as to the effect of an existing charge upon a sale was legally untenable and contended that the observation of the said authority that when there was a title dispute the authorities below should not have passed orders, was without basis as the fourth respondent had not raised any dispute before the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal, the third respondent, at the time of regularization of the title document. Per contra, the fourth respondent’s case before this Court is that he did not execute the said document in favour of the petitioner; he was not given any notice by the third respondent and that, with the collusion of the said authority, the petitioner secured the regularization of her forged and fabricated title deed. Claiming ignorance of this regularization till the year 2005, the fourth respondent claimed that his appeal before the second respondent was within time and was not barred by limitation. In so far as the repayment of the Bank loan is concerned, it is his case that the loanee, Sanjay Kumar Joshi, discharged the loan and consequently, the Bank Officials returned the sale deed to him. Dr.Muddu Vijai, learned counsel, urged a new ground to the effect that the Mandal Revenue Officer/Tahsildar, the third respondent, had no jurisdiction to entertain the application submitted by the petitioner for regularization of the unregistered document as she was not in occupation of the subject land at that point of time as required by Section 5-A of the Act of 1971. He relied upon the Pahani Patrikas of the years 1990-91 and 1991-92 which reflected the name of his client as the owner and possessor of the disputed land during that period and contended that the proceedings before the third respondent were vitiated owing to this jurisdictional error. It is his case that the petitioner secured the regularization of her unregistered document with the collusion of the third respondent and that the fourth respondent had neither been given any notice nor did he sign any statement before the said authority. When asked by the Court as to how the fourth respondent would explain the documentary evidence with regard to repayment of the Bank loan by the petitioner, the learned counsel submitted that the Bank authorities had also colluded with the petitioner! He placed reliance on case law in support of his contention that the appeal filed by the fourth respondent before the Revenue Divisional Officer, (East Division), Ranga Reddy District, the second respondent, was not barred by limitation. He asserted that the revisionary authority was justified on facts in relegating the parties to the civil Court. Perusal of the grounds of appeal filed by the fourth respondent before the Revenue Divisional Officer (East Division), Ranga Reddy District, the second respondent, reflects that it was his claim therein that the Bank officials had issued notice of sale of the subject land to him and thereupon, he approached the loanee, Sanjay Kumar Joshi, and they settled the matter with the Bank Officials and cleared the loan amount on 31.12.2003. He therefore claimed to have participated in the repayment process. This statement, on the face of it, runs contra to the documentary evidence filed by the petitioner showing that the Bank dealt with her and settled the loan account upon payment of the due amount by her. Relevant to note, in these grounds of appeal, the fourth respondent did not state that he had not executed the unregistered sale deed dated 05.12.1980 in favour of the petitioner. On the other hand, it was his case that the Mandal Revenue Officer/ Tahsildar, Saroornagar Mandal, the third respondent, in a hasty manner without serving notices and giving opportunity to him to prosecute the matter, passed orders. It was only before the revisionary authority that the petitioner improved his case and came up with various new grounds. He alleged that the petitioner had played fraud upon the third respondent by getting a stranger to impersonate him, which was altogether a different version when compared to his stand before the second respondent. He further alleged that the unregistered sale deed was a forged and fabricated document and had no legal sanctity in the eye of law. He contradicted himself by contending thereafter that when the property was mortgaged with the Bank if any transaction had taken place, such transaction had no legal sanctity in the eye of law, impliedly admitting that a transaction did take place. Apart from this, the admitted inaction on the part of the fourth respondent for over 11 years causes any amount of suspicion. It is not in dispute that pursuant to the regularization of her unregistered title document, the petitioner’s name was mutated in the revenue records as regards the subject lands. It is well-nigh impossible to believe that the fourth respondent would have been unaware of this for 11 years. Further, there is no explanation forthcoming from the fourth respondent as to how and why the original title document relating to the extents of Ac.0.03 guntas in Survey No.590/2 and Ac.0.02 guntas in Survey No.591/2 of Nadergul Village, Saroornagar Mandal, Ranga Reddy District, came to be in the possession of the petitioner. Pertinent to note, these lands were also sold to the petitioner under the very same unregistered sale deed dated 05.12.1980. This fact unequivocally demonstrates the veracity of the petitioner’s claim as to the execution of the said document. Further, the fourth respondent’s inability to explain the documentary evidence relating to the repayment of the Bank loan by the petitioner also speaks against him. The inexorable and irresistible conclusion that emerges from a conspectus of the above facts is that the unregistered sale deed dated 05.12.1980 is genuine. While the facts are thus, the finding of the revisionary authority that the sale in favour of the petitioner was illegal as it was during the subsistence of the bank mortgage cannot be countenanced. Such sale would invariably be subject to the charge but would not, by account of the existence of such charge, become illegal. Further, as the petitioner herself discharged the mortgage as is evident from the documentary evidence, it cannot be held against her. As the regularization of her unregistered sale deed dated 05.12.1980 was in strict accordance with the procedure laid down by the Act of 1971 and the Rules of 1989, the finding of the revisionary authority that the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal, ought not to have passed an order as there was a title dispute, is opposed to the facts and the legal position. The third respondent examined all the necessary material and evidence before regularizing the unregistered document. Further, once the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal, scrupulously followed the prescribed procedure under Section 5-A of the Act of 1971 and Rule 22 of the Rules of 1989, it is not open to the fourth respondent to baldly cast aspersions against him by vaguely alleging that with the active collusion of the said authority, the petitioner secured the regularization. The statutory action of the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal, in the usual course of his duties duly borne out by record cannot be challenged on grounds of collusion except with substantial proof. Under Section 81 of the Indian Evidence Act, 1872, a presumption as to genuineness would attach to the record maintained by the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal, in respect of the subject regularization once the same was kept substantially in the form required by law and is produced from proper custody. That being so, the unsubstantiated and inconsistent allegations of the fourth respondent in this regard are liable to be condemned in no uncertain terms. The contention of Dr.Muddu Vijai, learned counsel, that the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal, lacked jurisdiction as the application under Section 5-A of the Act of 1971 has to be made by a person in occupation and the petitioner did not fulfil this prerequisite, is also liable to be rejected. The unregistered sale deed, which is found to be a genuine document, clearly records that possession of the land was handed over to the petitioner. This was affirmed by the fourth respondent in his recorded statement before the third respondent. In such view of the matter, merely because mutation had not taken place in her favour in the revenue records, the fourth respondent cannot claim that he was in possession of the lands even after the execution of the sale deed. Relevant to note, except for the Pahani Patrikas, the fourth respondent is not in a position to produce any other document, such as cist receipts etc., in proof of his being in possession after the sale of the subject lands in favour of the petitioner. It is the case of the petitioner that she was put in possession of the subject lands in the year 1980 itself as recorded in the unregistered sale deed dated 05.12.1980 and that she constructed poultry sheds in the said lands under the name and style of ‘Venkataramana Poultry Farms’ duly obtaining permission from the Gram Panchayat. Presently, the lands are said to be covered with poultry sheds, labour quarters and a house. It is also pertinent to note that until she got her unregistered sale document regularized, the petitioner could not have applied for and obtained mutation in her favour in the revenue records. Therefore, the Pahani Patrikas by themselves are of no assistance to the fourth respondent and his claim that the proceedings before the third respondent were without jurisdiction cannot be accepted. Dr.Muddu Vijai, learned counsel, further contended that the limitation prescribed under Section 5-B of the Act of 1971 would have no application to the case on hand as the order of the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal, was void for want of jurisdiction. This contention has already been rejected supra. Further, this Court is of the opinion that the Mandal Revenue Officer/Tahsildar was fully justified and well within his jurisdiction in entertaining the petitioner’s application under Section 5-A of the Act of 1971 in the light of the recital in the unregistered sale deed and also the admission by the fourth respondent in his recorded statement that possession was given to the petitioner at the time of the sale. This argument therefore deserves no consideration. I n DARA SINGH v. STATE THROUGH DIRECTOR OF ENFORCEMENT, NEW DELHI[1], it was held that where an order is appealable and is not pronounced in the presence of the person aggrieved, the date of his knowledge of the said order would be the date of the order for the purpose of computing the period of limitation, irrespective of the date on which it is actually passed. I n STATE OF ORISSA v. BRUNDABAN SHARMA[2], the Supreme Court held that validity of an order which is non est in the eye of law could be questioned in any proceeding at any stage. The above Judgments were cited by Dr.Muddu Vijai, learned counsel, to support his contention that his client’s appeal before the Revenue Divisional Officer (East Division), Ranga Reddy District, ought not to have been dismissed on the ground of limitation. It is however to be noticed that unless the learned counsel establishes that the order under challenge was non est in the eye of law or in the alternative, that his client did not have notice of the passing of the order till just before the filing of the appeal, the ratio of the above Judgments would not be applicable to the present case. For the reasons already stated hereinbefore, this Court does not find merit in the contention of Dr.Muddu Vijai, learned counsel, that the regularization effected by the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal, Ranga Reddy District, was without jurisdiction. That being so, the said order cannot be said to be non est in the eye of law or void, as contended. Further, as the record maintained by the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal, clearly evidences the participation of the fourth respondent in the proceedings before the said authority, there is no question of the fourth respondent claiming ignorance of the same. The decisions cited are thus of no avail. In MOVVA ANJAMMA v. ABHINENI ANASUYA[3], a learned Judge of this Court held that delay could be condoned even without the filing of a separate application if it is properly explained. There is no explanation for the delay forthcoming from the grounds of appeal filed by the fourth respondent before the Revenue Divisional Officer (East Division), Ranga Reddy District. Except for stating that the date of his knowledge was 29.09.2005, the significance of that date and the manner in which his knowledge came about are not explained. The ratio i n MOVVA ANJAMMA3 is therefore equally inapplicable to the case on hand. The decision of a learned Judge of this Court in K.SIDDIAH NAIDU v. DISTRICT COLLECTOR, CHITTOOR[4], relied upon by Dr.Muddu Vijai, learned counsel, also has no application to the obtaining fact situation. That was a case involving a serious dispute about possession and title over the land and this Court was therefore of the opinion that in such circumstances the authorities ought not to have effected change of entries in the revenue records on the basis of an agreement of sale. Factually dissimilar to the case on hand, K.SIDDIAH NAIDU4 does not advance the case of the fourth respondent. Dr.Muddu Vijai, learned counsel, also relied on B.PUSHPAMMA v. JOINT COLLECTOR, RANGA REDDY DISTRICT[5] to support his contention that Section 5-A(1) of the Act of 1971 would apply only to a case where the applicant was in occupation by virtue of the alienation or transfer under the unregistered document. There is no dispute with this proposition. However, it is established on facts that the petitioner was in fact in occupation at the time of applying under Section 5-A of the Act of 1971 to the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal. In B.PUSHPAMMA5, the application made under Section 5-A of the Act of 1971 was opposed by the other party raising a dispute. In such a situation, this Court was of the opinion that Section 8(2) of the Act of 1971 would apply and the issue could not be decided in a summary way under the Act of 1971, as rightly held by the revisionary authority therein, and would necessarily have to be subject to resolution in a civil suit. In the present case, the record of the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal, establishes that there was no dispute raised by the fourth respondent at the time of regularization of the unregistered sale deed dated 05.12.1980. There was thus no occasion for the said authority to relegate the parties to the Civil Court as would have been required had there been a bona fide dispute. In the light of the aforestated discussion, it is clear that the revisionary authority erred in understanding the legal position and in reversing the well reasoned order of the appellate authority confirming the regularization effected by the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal, under Section 5-A of the Act of 1971. The revisionary authority altogether failed to deal with the issue of delay and limitation in the filing of the appeal, which was one of the grounds on which the appellate authority dismissed the appeal. Thus, the order under challenge suffers from illegality and material irregularity on counts more than one and cannot be sustained. The Writ Petition is accordingly allowed setting aside the order dated 06.09.2008 passed by the Joint Collector-I, Ranga Reddy District, the first respondent, and upholding the regularization of the petitioner’s unregistered sale deed dated 05.12.1980 by the Mandal Revenue Officer/Tahsildar, Saroornagar Mandal, the third respondent, under Section 5-A of the Act of 1971, confirmed in appeal by the Revenue