IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE TWENTY NINTH (29TH) DAY OF JUNE, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5256 of 2007 Between: Chittampally Balamma … Petitioner And: The Joint Collector, Nalgonda & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5256 of 2007 ORDER: This revision petition is directed against the order dated 08.10.2007 in No.F2/18576/2004 on the file of the Joint Collector, Nalgonda, wherein the said appeal filed by the petitioners herein under Section 24 of A.P. (T.A.)Abolition of Inams Act (for short ‘the Act’), was dismissed confirming the order dated 30.05.2003 in Case No.B/2617/97 dated 30.05.2003 passed by the Revenue Divisional Officer, Bhongir. 2. Heard the learned counsel for the petitioners and the learned counsel for the respondents. Perused the record. 3. The Revenue Divisional Officer, Bhongir by order dated 30.05.2003 held that one Chittampally Eshwaramma-3rd respondent herein, shall be registered as occupant in respect of an extent of Ac.4.25 guntas, dry, situated in Malkapur village in accordance with the provisions of Section 10 of the Act, with further direction that she shall be liable to pay Rs.181/- towards premium to the Government. Aggrieved by the same, the petitioners herein preferred appeal before the Joint Collector, under section 24 of the Act claiming that they are entitled for 1/3rd share each in the said land and the Revenue Divisional Officer ignoring their rights, issued ORC (Occupancy Right Certificate) in favour of 3rd respondent herein for the entire land. According to the petitioners before issuing ORC in favour of 3rd respondent herein, the Revenue Divisional Officer, has not issued any notice to the legal heirs of Chittampally Yellaiah, who was the original possessor of the land and without holding any enquiry, the ORC was issued as if 3rd respondent is entitled for the entire land. The case of the petitioners is that the original possessor of the land by name Chittampally Yellaiah had three sons by name, Yadagiri, Asaiah and Narasimha and they acquired equal shares in the land and were in joint possession and enjoyment of the same and that the 3rd respondent is the wife of Yadagiri, the petitioners 1 and 2 are the wife and son of Asaiah, and petitioners 3 and 4 are the wife and son of Narsimha and that after the death of Asaiah, Narsimha and Yadagiri, the petitioners 1 and 2 became entitled for 1/3rd share of Asaiah, petitioners 3 and 4 became entitled for 1/3rd share of Narsimha and 3rd respondent became entitled for 1/3rd share of Yadagiri. The 3rd respondent, on the other hand contended that the petitioners were never in possession and they were residing elsewhere and they never applied for issuance of ORC in their favour and she alone was in possession and enjoyment of the entire land. She further contended that the petitioners 3 and 4 herein were granted patta for an extent of Ac.7.20 guntas of land in Sy. Nos.763, 697 and 765 and the appellants 1 and 2 left Malkapur village long back and residing at Palivela village. 4. As seen from the impugned order of the Joint Collector, an extent of Ac.1517.34 guntas of Khairathi inam lands and an extent of Ac.1966.36 guntas surplus land was in dispute since long time right from 1954-55 and after long drawn litigation, the dispute was finally settled by all party committee, Tenant Forming Cooperative Society, the Mandal Revenue Officer, Choutuppal and the Revenue Divisional Officer, Bhongir, where under surplus land was assigned under Lavoni Rules, which are not alienable and occupancy rights were issued in favour of 322 persons in respect of inam land, which is alienable. It is not disputed that the petitioners 3 and 4 were allotted the surplus land and 3rd respondent herein was granted ORC. No land was allotted in favour of petitioners 1 and 2, as they were not residents of Malkapur village. Though the certificates were issued in the year 2003, the petitioners have not questioned the same. It is seen from the impugned order that the Malkapur Tenant Forming Cooperative Society was recorded as occupant for the entire inam lands as well as surplus land. The petitioners herein have admittedly not filed any application to the Revenue Divisional Officer, seeking occupancy right certificate in their favour. The 3rd respondent applied for such certificate claiming to be in possession and after enquiry, the claim of 3rd respondent herein and several others was settled. The learned Joint Collector has therefore confirmed the order of the Revenue Divisional Officer, Bhongir in issuing ORC in favour of 3rd respondent. 5. The main contention of the learned counsel for the petitioners is that, even admittedly, the petitioners are also the members of the joint family along with 3rd respondent and all of them being legal heirs of three sons of the original inamdar, the name of 3rd respondent alone cannot be entered in the register as directed by the Revenue Divisional Officer ignoring the joint rights of the petitioners and the names of the petitioners also ought to have been entered in the register. Learned counsel for the 3rd respondent on the other hand would submit that as the petitioners were not in possession and 3rd respondent alone was in possession on the crucial date and in response to her claim, the occupancy right certificate was issued in her name. 6. In a similar set of facts, this Court in ‘Govind Rao vs. Joint Collector, Adilabad[1]’ while quashing the orders of the Joint Collector, directed issuance of fresh ORC incorporating the names of the petitioner and respondents 4 to 10 therein. In the above case also, 3rd respondent therein made an application before the Revenue Divisional Officer for grant of ORC for an extent of Ac.15.20 guntas of Bhainsa village and the same was granted in his favour and the appeal filed by the petitioners therein before the Joint Collector was rejected and questioning the same, the petitioner therein filed the said writ petition. It was contended by him that himself and respondents 3 to 10 therein were all legal heirs of the original owner and there was no partition in the family. The 3rd respondent therein maintained that there was oral partition and he was in exclusive and personal occupation of the lands by virtue of the said partition. The Joint Collector, while holding that the suit lands were jointly held by both parties, however, held that the 3rd respondent and his father were in personal cultivation of the lands and therefore, the Revenue Divisional Officer was justified in passing the order in favour of 3rd respondent alone. 7. Section 2(d) of the Act defines ‘inamdar’ as meaning 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 idiot, his lawful guardian, (ii) where an inamdar is a joint Hindu family, such joint Hindu family. 8. In ‘Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee[2]’, the apex 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’. 9. In ‘Darshan Singh v. Gujjar Singh[3]’, the apex Court held that ‘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’. 10. In ‘N. Padmamma v. Krishna Reddy[4]’, 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.’ It was further held as follows: “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.” 11. Following the principles laid down in the above decision of the apex Court, it was held in Govinda Rao’s case (supra) that issuance of ORC in the name of one co-parcener alone is not sustainable in law and fresh ORC incorporating the names of all the legal heirs be issued. 12. In the present case also, admittedly, petitioners 1 and 2 representing one branch, petitioners 3 and 4 representing second branch, 3rd respondent representing third branch of common ancestor of Chinna Yellaiah are members of the joint family and Chinna Yellaiah was Attender in Grama Panchayat and was member of the Tenant Forming Cooperative Society and the ORC was issued in respect of Ac.4.25 guntas out of total extent of Ac.1517.14 guntas held by the possessor but the name of 3rd respondent alone was registered on the ground that she was in possession and she alone made claim. In view of the principles laid down in the above decision as to the constructive possession of the other joint family members through the person in actual possession, holding that possession of one co-sharer shall be deemed to be the possession on behalf of other co-sharers also in the absence of any clear ouster, it must be held that grant of ORC in favour of 3rd respondent alone cannot be sustained in law. The petitioners, who are other co-sharers, are therefore held entitled for issuance of ORC along with the 3rd respondent. 13. It is not disputed that the petitioners herein have already filed a civil suit for partition in OS No.74 of 2005 on the file of the Junior Civil Judge, Ramannpet in respect of the subject land herein also. The grant of ORC in favour of the petitioners does not preclude the 3rd respondent from raising the plea of ouster of the petitioners in respect of the subject land and claiming exclusive rights for herself in the pending suit OS No.74 of 2005. It is open to both parties to raise all contentions including the plea of ouster in OS No.74 of 2005 and the civil Court shall adjudicate upon the same on its own merits without in any way being influenced by any of the observations made herein above. 14. In the circumstances, the impugned order is held liable to be set aside and is accordingly set aside. 15. In the result, the civil revision petition is allowed. No order as to costs. ___________________ G.V.SEETHAPATHY, J Date: 29.06.2011 bss [1] 2010 ALD (5) 650 [2] AIR 1971 SC 2251 [3] AIR 2002 SC 605 [4] 2008(6) ALD 1 (SC)