*THE HONOURABLE SRI JUSTICE P.V.SANJAY KUMAR +WRIT PETITION No.23945 OF 2000 % 26-12-2008 # K.Pratap Reddy and Others ..Petitioners Vs. $ The Joint Collector, Lakdikapool, Hyderabad, Ranga Reddy District, and others. ..Respondents ! Counsel for the Petitioners: Sri V.Ramakrishna Reddy. ^ Counsel for the Respondents 1 & 2 : G.P.for Revenue Counsel for the Respondent 3 : Sri M.V.Durga Prasad < Gist: >Head Note ? Citations: 1. 1999(4) ALT 209 (D.B.) 2. AIR 1969 SUPREME COURT 1297 3. 1999(5) ALT 480 4. 2001 AIHC 1990 5. 2003(1) ALT 615 6. 2002(4) ALT 465 (DB) 7. (2003) 2 SCC 464 8. (2003) 7 SCC 667 9. 2005(1) ALT 240 10. (2008) 8 SCC 12 11. (2007) 6 SCC 186 12. AIR 1954 SUPREME COURT 340 13. AIR 1979 SUPREME COURT 193 14. (2003) 7 SUPREME COURT CASES 418 15. AIR 1976 SUPREME COURT 109 16. AIR 1980 SUPREME COURT 1655 17. AIR 1965 SC 295 18. 2004(7) ALT 963 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SIXTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION No.23945 OF 2000 Between: 1 K.Pratap Reddy, S/o.K.Gopal Reddy, R/o. H.No.3-10/A, Balaji Nagar, Ghatkesar Village & Mandal, Ranga Reddy District. 2 K.Sudhakar Reddy, S/o.K.Gopal Reddy, R/o. H.No.3-10, Balaji Nagar, Ghatkesar Village & Mandal, Ranga Reddy District. 3 K.Upender Reddy, S/o.K.Gopal Reddy, R/o. H.No.3-10/B, Balaji Nagar, Ghatkesar Village & Mandal, Ranga Reddy District. 4 K.Ravinder Reddy, S/o.K.Gopal Reddy, R/o. H.No.3-10/C, Balaji Nagar, Ghatkesar Village & Mandal, Ranga Reddy District. 5 K.Ram Reddy, S/o. Sidda Reddy, R/o. H.No:LIG B-47, A.S.Rao Nagar, ECIL, Hyderabad. 6 K.Laxma Reddy, S/o. Sidda Reddy, R/o. H.No:Plot No.38,Phase-II, J.P.Nagar, Hyderabad. ..... PETITIONERS AND 1 The Joint Collector, Lakdikapool, Hyderabad, Ranga Reddy District. 2 Mandal Revenue Officer, Ghatkesar Mandal, Ghatkesar, Ranga Reddy District. 3 K.Jaipal Reddy, S/o.K.Ramchandra Reddy, R/o. Kondapur Village Within Ghatkesar Revenue Mandal, Ranga Reddy District. 4 K.Indrasena Reddy, S/o. late Sidda Reddy, R/o. Gummadidala Village, Narsapur Taluq, Madak District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue any Writ or direction more particularly one in the nature of Writ of Certiorari calling for the records of the proceedings or Order dated 24-07-2000 passed by first Respondent herein his proceedings No.D5/9418/97 and also calling for records of proceeding or order dated 10-11-2000 passed by second Respondent herein in his Proceedings No.B/2186/2000 and be pleased to quash the same as illegal, arbitrary and without jurisdiction violating all constitutional guarantees and norms and pass any appropriate order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioners:MR.A.ANANTHA REDDY Counsel for the Respondent :MR.M.V.DURGA PRASAD FOR R.3 GP FOR REVENUE FOR R. The Court made the following : THE HONOURABLE SRI JUSTICE P.V.SANJAY KUMAR WRIT PETITION NO.23945 OF 2000 O R D E R The extent and scope of jurisdiction of Revenue Authorities in exercise of powers conferred by Sections 5 and 9 of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (for short, ‘the Act of 1971’) fall for consideration in this writ petition. The order passed by the Joint Collector, Ranga Reddy District, Hyderabad, the 1st respondent herein, in Proceedings No.D5/9418/1997 dated 24.07.2000 in exercise of revisional jurisdiction under Section 9 of the Act of 1971 and the consequential order passed by the Mandal Revenue Officer, Ghatkesar Mandal, Ghatkesar, Ranga Reddy District, the 2nd respondent herein, in proceedings No.B/2186/2000 dated 10.11.2000 in exercise of powers conferred by Section 5 of the Act of 1971 are under challenge. The petitioners claim that they and respondents 3 and 4 herein share a common lineage. According to them, Kommidi Kanna Reddy and his brothers Kommidi Venkat Reddy, Kommidi Laxma Reddy, Kommidi Tirumal Reddy and Kommidi Ramachandra Reddy had several ancestral properties. Kommidi Ramachandra Reddy had three sons, Narsimha Reddy, Jagga Reddy and Narayan Reddy. Jaipal Reddy, respondent 3 herein, is the grandson of Sri Jagga Reddy through his son Ramachandra Reddy. The petitioners on the other hand are the descendents of the other brother Laxma Reddy. Laxma Reddy had one son Ram Reddy. Ram Reddy had two wives and the sons of one wife were Siddha Reddy and Gopal Reddy. Petitioners 1 to 4 herein are the sons of Gopal Reddy, while petitioners 5 and 6 and respondent 4 are the sons of Siddha Reddy. According to the petitioners there was a partition in the family whereby the subject ancestral lands admeasuring Ac.23.07 guntas at Kondapur Village were retained by two sections of the family, namely Jagga Reddy who had 50% share and Siddha Reddy and Gopal Reddy, who jointly had 50% share. After the death of their predecessors-in-title, the petitioners lay a claim to 50% share with respondent 4 in these lands and state that the remaining 50% fell to the share of respondent 3, claiming through his grandfather Jagga Reddy. The petitioners state that the names of Gopal Reddy, Siddha Reddy and Jagga Reddy were entered in the khasra pahani of 1954- 55 under the ownership column and that the entries found under the column ‘pattadar’ in the revenue records continued to show the names of Gopal Reddy and Siddha Reddy also. While so, it is stated that respondent 3 approached the Revenue Authorities in 1988 as he intended to sell away Ac.7-22 guntas out of his half share in the land admeasuring Ac.15-04 guntas in Sy.No.244 in Kondapur Village which formed part of the larger extent of Ac.23-07 guntas. When the other half sharers, Gopal Reddy and Siddha Reddy, questioned the same, respondent 3 challenged the correctness of the entries in the khasra pahani of 1954-55 by filing an appeal under Section 15(2) of the Andhra Pradesh (Telangana Area) Record of Rights in Land Regulation of 1358 Fasli (for short, ‘Regulation of 1358- F’) before the District Revenue Officer, Ranga Reddy District. Thereupon, Gopal Reddy filed a partition suit, O.S.No.348 of 1989 on the file of the Principal Subordinate Judge, Ranga Reddy, against respondent 3 and others seeking partition of the land at Kondapur admeasuring Ac.23-07 guntas. Gopal Reddy filed a counter bringing this aspect to the notice of the District Revenue Officer who dismissed the appeal filed by respondent 3 by his order dated 26.10.1989, recording that the parties had approached the civil Court for establishing their rights. It is the petitioners’ case that after the dismissal of the appeal before the District Revenue Officer there was a compromise between the parties and the G.P.A. Holder of respondent 3 submitted a ‘no objection form’ stating to the effect that half of land in Sy.No.244 of Kondapur Village was owned by Gopal Reddy and Siddha Reddy. In view of this admission, it is stated that Gopal Reddy got his suit, O.S.No.348 of 1989 dismissed for default on 07.08.1996. As matters stood thus, respondent 3 filed an application before the Joint Collector, Ranga Reddy District, to re-open his appeal which had been dismissed on 26.10.1989. It is further stated that without notice to the petitioners herein, the said case was re-opened and numbered as Case No.D5/9418/97 converting the appeal into a revision under Section 9 of the Act of 1971. It is alleged that the said revision was not maintainable as it was not filed against an order of the Mandal Revenue Officer or of the appellate authority, the Revenue Divisional Officer. The Joint Collector, Ranga Reddy, passed orders in the revision on 24.07.2000 advising respondent 3 to move the Mandal Revenue Officer, Ghatkesar Mandal, the second respondent, for deciding the succession in respect of the subject property. Thereupon, the second respondent came to the erroneous conclusion that only the name of the grandfather of respondent 3 was recorded as the pattadar of the lands in question. This was in contradiction with the khasra pahani of 1954-55 which showed the names of Gopal Reddy and Siddha Reddy, the predecessors-in-title of the petitioners and respondent 4, as the joint pattadars and the entries in the revenue records in the same vein. It is stated that merely because the possession of the land was shown to be with respondent 3 the same did not have the legal implication that the joint pattadars had no rights in the lands. The possession of one joint owner should be presumed to be and treated as joint possession of all the owners. The petitioners participated in the proceedings before respondent 2 but were unable to convince him of their rights over the subject lands. The orders passed by the Joint Collector, Ranga Reddy District, under Section 9 and the Mandal Revenue Officer, Ghatkesar Mandal under Section 5 of the Act of 1971 are challenged before this Court. Respondent 3 filed a counter affidavit stating to the following effect: He denied the sharing and enjoyment of the family’s ancestral properties under the alleged partition put forth by the petitioners and more specifically, the claim put forth by them that the grandfather of respondent 3, Jagga Reddy, and their predecessors-in-title, Gopal Reddy and Siddha Reddy, jointly owned the lands at Kondapur. The petitioners, without making a distinction between a great grandfather and a grandfather, were trying to lay a claim spanning five generations when law posited that a coparcenary can extend only upto three generations from the holder. Even in O.S.No.348 of 1989, respondent 3 had denied the relationship alleged to exist between him and the predecessors-in-title of the petitioners herein. The said suit was dismissed for non-prosecution after being dragged on for seven years. Petitioners 4 and 5 had come on record in the said suit after the death of Gopal Reddy. The dismissal of the suit had become final as no appeal was preferred and no steps were taken to restore the case to the file. According to respondent 3, Gopal Reddy and Siddha Reddy, the predecessors-in-title of the petitioners herein, with a view to grab the subject lands got their names interpolated in the khasra pahani of 1954-55 in collusion with the Village Patwari, who was their first cousin. It is asserted that they did not have any right in respect of the subject lands and the mere fabricated entry in the revenue record did not vest them with any entitlement over the subject lands. In the Sethwar of 1953 only the name of respondent 3’s grandfather, Jagga Reddy, found mention both as the pattadar as well as the possessor. Similar is the case with the Wasool Baqi of the year 1354-F. The Village Patwari, Sri K.Surender Reddy, was in the habit of making illegal entries and was ultimately removed from service. Respondent 3’s grandfather, Jagga Reddy, had filed an appeal under Section 15(2) of the Regulation of 1358-F and the Tahsildar submitted a report on 21.06.1967, which was in favour of Jagga Reddy. However, owing to the expiry of Jagga Reddy and the ignorance of his heirs about the filing of the said appeal, the same was dismissed for default. Having come to know of the wrong entries in the revenue records, respondent 3 filed an appeal afresh under Section 15(2) of the Regulation of 1358- F. The said proceedings were closed owing to the fact that Gopal Reddy had filed O.S.No.348 of 1989 before the Principal Subordinate Judge, Ranga Reddy District, and brought it to the notice of the District Revenue Officer. While closing the proceedings by his order dated 26.10.1989, the Revenue Authority stated that he had no jurisdiction to interfere with the civil dispute until final orders were passed by the Civil Court and stating so, dismissed the appeal. As the only ground for the dismissal of his appeal was the pendency of the suit and as the suit had been dismissed on 07.08.1996, it was lawful and appropriate for the Revenue Authority to re-open the proceedings upon an application. Reliance is placed upon Rule 32 of the A.P. Rights in Land and Pattadar Pass Books Rules, 1989 (for short, ‘the Rules of 1989) which states that after the disposal of the civil suit the party is required to communicate the result to the Revenue Authority which shall take necessary steps in the matter thereafter. The petitioners failed to participate in the proceedings before the Joint Collector in spite of notices being served upon them. Substituted service of notice was permitted on 08.04.2000 which was carried out by publication of the notice in Eenadu Newspaper. In spite of these steps, as the petitioners failed to put in an appearance, they were set ex parte and the matter was heard on merits. Thereupon, the Joint Collector directed respondent 3 to approach the Mandal Revenue Officer by his order dated 24.07.2000. Before the Mandal Revenue Officer, Ghatkesar, the petitioners responded to the notices issued and filed their objection petition. It is specifically pointed out that the petitioners did not choose to challenge the order of the Joint Collector dated 24.07.2000 at that stage and merely acted in pursuance thereof, by agitating their claim before the Mandal Revenue Officer who was seized of the matter, solely because of the order dated 24.07.2000 passed by the Joint Collector. The Mandal Revenue Officer passed orders in favour of respondent 3 after due and proper enquiry. The said order is appealable under Section 5(5) of the Act of 1971 and circumventing the said statutory remedy, the petitioners had approached this Court by way of the present writ petition. Respondent 3 also placed reliance upon the fact that he and his father had filed a declaration under the provisions of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for brevity, ‘the Act of 1973) and proceedings were issued in their favour showing the subject lands in their land holding. Respondent 3 claimed to have sold part of the land to the knowledge of one and all and stated that the petitioners had not taken any steps at that point of time. Respondent 3 also relied upon the fact that the sale deed executed by him did not allude to any admission on his part that Gopal Reddy and Siddha Reddy, the predecessors-in-title of the petitioners herein were the joint owners of 50% share of the subject lands. In summation, it is contended that if the petitioners are aggrieved by the entries made in the revenue records in respect of the land which was in their alleged possession, their remedy is to institute a suit under the provisions of Section 8(2) of the Act of 1971 or in the alternative, file an appeal under Section 5(5) of the Act of 1971 and that the present writ petition is not maintainable. No counter affidavit is filed by respondents 1 and 2. Heard Sri V.Ramakrishna Reddy, learned counsel for the petitioners, learned Government Pleader for Revenue for respondents 1 and 2, Sri M.V.Durga Prasad, learned counsel for respondent 3 and perused the original record pertaining to the Revision. Respondent 4 remained ex parte. The learned counsel for the petitioners contended that the finding of title recorded by the revenue authorities in favour of respondent 3 is devoid of jurisdiction. The authorities, according to him, failed to note that the petitioners and respondent 3 along with respondent 4 were members of a joint family and were co-owners of the subject property under a family partition. The counsel contended that the title of the co-owners was not ousted merely because of the fact that one amongst them alone was in possession. He submitted that it was not open to the revenue authorities to go into complex questions or disputes of title over immovable property. He contended that the objections raised by the petitioners, with regard to the entitlement of respondent 3 being limited to only a half share in the subject lands, were not considered in the proper perspective by the revenue authorities. He placed reliance upon the judgment of a Division Bench of this Court in COMMISSIONER OF SURVEY, SETTLEMENTS AND LAND RECORDS, GOVERNMENT OF A.P. V/s. G.PADMAVATHI[1] to support his contention that a person whose name finds place in the records will have a right to assert that he is entitled to make a claim as an owner unless the same is negatived by rebuttal evidence. It is however to be noticed that in the very same judgment, the Division Bench held that a person who asserts ownership over a property shall establish the same by resorting to a civil suit. The learned counsel also relied upon observations made in this judgment to the effect that the authority exercising revisional power, be it on an application or suo motu, should do so within reasonable time. In that case, the revisional power involved was that under Section 166-B of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 F. The learned counsel for the petitioners submitted that on an analogy of the provisions under Section 9 of the Act of 1971, the same proposition of law would stand extended and the exercise of revisional power by the Joint Collector, Ranga Reddy District, in the present case was ‘well beyond reasonable time’. He also placed reliance in this regard upon the judgment of the Supreme Court in STATE OF GUJARAT V/s. PATEL RAGHAV NATHA[2]. The Supreme Court, in the said case, held that revisional power must be exercised in reasonable time even if no period of limitation is prescribed and that the length of reasonable time must be determined on the facts of the case and the nature of the order revised. The Supreme Court also observed that when the title of an occupant is disputed and the dispute is serious, the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent court and not to decide the question of title himself against the occupant. The judgment of a learned single Judge of this Court in K.SIDDIAH NAIDU V/s. DISTRICT COLLECTOR, CHITTOOR[3] is relied upon to support the contention that the Mandal Revenue Officer in exercise of powers under Section 5 of the Act of 1971 cannot effect changes of entries in the revenue records under the Act of 1971, if there was a dispute with regard to the title over a property. Therein, the Court upheld the action of the Mandal Revenue Officer refusing to exercise powers under Section 5 of the Act of 1971 until the title over the disputed property was decided one way or the other. The learned counsel also drew the attention of this Court to the judgment of the Rajasthan High Court in SHANTI LAL V/s. BOARD OF REVENUE [4], wherein a learned Judge of the Rajasthan High Court held that once there was a dispute about the right to succession, it was not open to the revenue authorities to adjudicate upon such right and the matter should be referred to the civil Court or the parties should be directed to get their rights adjudicated through appropriate proceedings before the civil Court. Another judgment relied upon by the learned counsel for the petitioners is that of a learned Judge of this Court in V.GOUTHAM RAO V/s. REVENUE DIVISIONAL OFFICER, JAGTIAL, KARIMNAGAR DISTRICT[5]. In that case, the learned Judge relying upon the Division Bench judgment of this Court in SANNEPALLI NAGESWAR RAO V/s. DISTRICT COLLECTOR, KHAMMAM[6], reaffirmed that where a special statute prescribed remedies before a hierarchy of authorities, a person aggrieved has to take recourse only to such forum by the method and manner in which it is prescribed under the said law. The learned Judge also held that wherever there is a serious dispute of title or claims of rival title, it would not only be proper for the authorities to refrain from proceeding with the enquiries under the provisions of the Act of 1971 but also pragmatic for the parties to approach the civil Court for establishing their right, title and interest. It is pointed out that the Supreme Court in MAHILA BAJRANGI (DEAD) THROUGH LRS. V/s. BADRIBAI, W/o. JAGANNATH[7] held that the Tahsildar or authorities exercising powers of mutation (original, appellate or revisional) have not been accorded the status of civil Courts or Courts of exclusive jurisdiction and such orders cannot be used as a basis or source for asserting a claim of res judicata before a competent civil Court in a subsequent suit involving adjudication of title to the immovable property. The Supreme Court also observed that mutation proceedings before the revenue authorities were not judicial proceedings in a Court of law and do not decide questions of title to immovable properties. The learned counsel also relied upon the judgment of the Supreme Court in IBRAHIMPATNAM TALUK VYAVASAYA COOLIE SANGHAM V/s. K.SURESH REDDY[8], wherein it was held that orders attaining finality, the certainty of rights of the parties accrued in the light of such orders must have sanctity. Stating so, the Supreme Court also observed that exercise of suo motu power ‘at any time’ only means that no specific period such as days, months or years are prescribed from a particular date. But that does not mean that ‘at any time’ should be unguided and arbitrary, and must be understood as being within a reasonable time depending on the facts and circumstances of the case. The judgment of a learned single Judge of this Court in B.PUSHPAMMA V/s. JOINT COLLECTOR, RANGA REDDY DISTRICT[9] is relied upon to support the contention that any person aggrieved by an entry made in the record of rights under the provisions of the Act of 1971 must institute a suit against such person who is denying or who is interested to deny his title for a declaration. This is as per Section 8(2) of the Act of 1971. In that case, the revenue authorities had held that issues relating to disputes over title could not be decided in the summary enquiry which would be held under the provisions of the Act of 1971 and the same found favour with this Court. The judgment of the Supreme Court in FAQRUDDIN (DEAD) THROUGH LRS. V/s. TAJUDDIN (DEAD) THROUGH LRS.[10] is cited for the proposition that mutation takes place only for certain purposes and that it is well settled that an entry in the revenue records is not a document of title. The Supreme Court held that revenue authorities cannot decide a question of title. A title does not remain in vacuum and must be determined keeping in view the law operating in the field viz. religious law or statutory law or customary law. Reference was made therein to its earlier judgment in SURAJ BHAN V/s. FINANCIAL COMMISSIONER[11], wherein it was held that entries in the revenue records do not confer title and are only intended for achieving the fiscal purpose and no ownership is conferred on the basis of such entries. It was also held therein that so far as the title to the property is concerned, it could only be decided by a competent civil Court. The Supreme Court also held in FAQRUDDIN’s case (10 supra) that once the revenue authorities had no jurisdiction to decide the question of title, their decision being without jurisdiction would be a nullity. The learned counsel relied upon the above decision to support his other contention that the orders challenged in this writ petition passed by the revenue authorities in exercise of the powers conferred by the Act of 1971 being without jurisdiction were nullities in the eye of law. He drew the attention of this Court to the observation made in FAQRUDDIN’s case (10 supra) that a jurisdictional fact would not attract the principles of estoppel as there can be no estoppel against a statute and the decision of the Board of Revenue in that case, being a decision on the question of title, was held to be without jurisdiction and consequently, a nullity. The learned counsel also supported this contention with the judgment of the Supreme Court in KIRAN SINGH V/s. CHAMAN PASWAN[12], wherein