THE HON'BLE SRI JUSTICE VILAS V. AFZALPURKAR CIVIL REVISION PETITION No. 1634 OF 2005 Dated: 04-03-2010 Between: Tiruveedula Seetharama Swamy ... PETITIONER AND State of A.P., rep., by the Authorised Officer, Land Reforms, Bandaru, Krishna District and another ... RESPONDENTS THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No. 1634 OF 2005 ORDER: This revision is directed against the orders of the Land Reforms Appellate Tribunal, West Godavari allowing Land Reforms Appeal No. 2 of 1998 by order dated 21-02-2005. The facts in brief are as follows: The petitioner herein claims to be the purchaser of Acs.2.78 cents in R.S Nos.26/1A and 26/1B of Vinjaram Village by virtue of a registered sale deed bearing document No.1373/89, dated 15-06-1989. The petitioner traces title to the said property through the predecessors of the declarant who is arrayed as respondent No.2 herein. The aforesaid land was sought to be taken possession of towards surrender of excess land so far as respondent No.2 – declarant is concerned. At that stage, the petitioner approached the Land Reforms Tribunal, Bandar by I.A No. 12 of 1995 in C.C.No.1471/KKL/75. In the said proceedings, the petitioner exhibited several documents which were marked as Exs.O-1 to O-10 which are in the nature of sale deed and photocopies of earlier title and link documents, copies of pattadar passbooks and encumbrance certificate. The Tribunal found on evidence as well as on the basis of the report of the Mandal Revenue Officer that the petitioner herein is in possession of the said land and also found that the declarant’s family, though had declared this land had also stated that they have no right to the said land in view of alienation made by them long back in favour of predecessor in title of the petitioner. The Tribunal therefore allowed the application on finding that the declarant is no way concerned with the land, computation of this land in the holdings of the declarant was not justified and consequently, deleted the aforesaid land form the holdings of the declarant. Questioning the aforesaid order, the State had preferred the appeal before appellate Tribunal referred to above and the said appeal has been allowed under the impugned order. Heard Sri A.V. Sivaiah, learned counsel for the petitioner and the learned Government Pleader for Arbitration appearing for the respondents. The learned counsel for the petitioner states that the petitioner has fully established his title to the property by tracing his title from 1967/1968 onwards when the land was originally alienated by Smt. B. Rajeswaramma to Sri Uppalapati Pandurangarao as early as on 03- 05-1967 under an agreement of sale and possession was also delivered to the said purchaser. Since that date, Smt. B. Rajeswaramma, the predecessor in title of the declarant had no title over the said land. He also submits that this was verified by the Verification Officer at the time of enquiry relating to declaration filed by respondent No.2. The said declaration no doubt was finally determined by order of the Land Reforms Tribunal, Bandar, dated 24- 02-1986 quantifying an extent of 0.8554 Standard Holdings of the declarant as excess. The said declarant though having declared that he has no concern with the land in question has conveniently chosen to surrender this very land of the petitioner. Therefore, the petitioner was justified in approaching the Tribunal. Though the Tribunal rightly allowed the petitioner’s claim, the appellate Tribunal has reversed the same on the basis of hyper technical examination of the exhibited documents and on the ground that the documents prior to 1971 were not produced. The appellate Tribunal committed an error in not appreciating the encumbrance certificate marked as Ex.O-10. He therefore submits that even the official record of continuous possession of the petitioner and his predecessor has been ignored by the appellate Tribunal while allowing the appeal. The learned Government Pleader submits that the primary Tribunal committed an error in revising the declaration filed by respondent No.2 which was finalised as early as on 24-02-1986. The said declaration having become final it was not open for the primary Tribunal to modify the standard holdings by deleting the land in question from the holdings of the declarant. He also submits that there is no direct and clinching evidence to establish that the transaction claimed by the petitioner is traceable to the agreement of sale by Smt. B. Rajeswaramma in favour of Sri Uppalapati Pandurangarao dated 03-05-1967 and, therefore, submits that the order of the appellate Tribunal does not warrant interference. The point therefore that arises for consideration is whether the petitioner’s claim is entertainable with respect to the lands in question, in the light of the evidence on record. It is not in dispute that the declarant – respondent No.2 had declared this very land in the declaration. However, while filing the said declaration, a footnote is made in the declaration specifically mentioning that Smt. B. Rajeswaramma had sold the land in question to Sri Uppalapati Pandurangarao for Rs.4,000/- on 03-05-1967 under an agreement of sale and possession was delivered to him on that day itself. It was also stated that Smt. B. Rajeswaramma has no right in that land. Further, the aforesaid land is shown in the declaration without prejudice to the contention of the declarant that this land should not be included in the holdings. It is also very crucial to notice that the Verification Officer has not controverted the aforesaid statement of the declarant and has categorically shown the land in question in part II of the verification report. Enclosure II in the standard proforma of the declarant as specified in the rules framed under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 prescribes that such of the lands owned by others but held by the declarant be included in this Enclosure. The fact that the Verification Officer has shown this land in part II of the verification report therefore presupposes that this land is owned by others and not by the declarant. Secondly, the primary Tribunal records that when this land was proposed to be surrendered by the declarant, the Mandal Revenue Officer, Kaikalur has inspected the land and found that the land has been in occupation of the petitioner herein. Further, Exs.O-1 to O-10 are the copies of title and link documents of the petitioner, apart from his own sale deed marked as Ex.O-1. The most crucial among them i.e., ExO-10 which is a encumbrance certificate shows existing encumbrance of the land in question from 1966 to the date of 04-09-1995. These documents clearly show that neither the declarant nor any of his family members have ever been in possession and enjoyment of the said land for the period from 1966 to 1995, which is covered by the said encumbrance certificate. In the light of these documents, therefore, the primary Tribunal rightly came to the conclusion that the petitioner has established his claim to the aforesaid land and in view of this rightful claim subsisting with respect to the said land, the declarant could not have surrendered this land towards excess. Even otherwise, since there is an encumbrance existing on the property in the nature of claim of the petitioner, under section 10(5) (a)(ii) the land is not free of dispute with respect to title and encumbrance so far as the declarant is concerned. Even accepting the same, surrender itself is erroneous. The appellate Tribunal in the impugned order has not appreciated these aspects. It has also not drawn appropriate inference on the documents referred to above and in particular to encumbrance certificate together with the manner in which respondent No.2 had declared the land and the endorsement of the Verification Officer. The land therefore may have been included in the holdings of respondent No.2, as there is no registered sale deed transferring title from the declarant in favour of the purchaser & even the part performance of the agreement executed as early as in the year 1967, when the purchaser was put in possession and has successfully continued in possession either through himself and or through his transferees , the declarant’s title to the said land, in law, is lost. It was therefore not open for the declarant to have surrendered this very land as it would directly affect and prejudice the petitioner. The order of the primary Tribunal to the extent of upholding the claim of the petitioner with respect to the said Acs.2.78 cents of land in question is therefore sustainable and justified and to that extent, the order of the appellate Tribunal reversing the aforesaid order of the primary Tribunal is liable to be interfered with. The other objection raised by the learned Government Pleader is well founded. The Land Reforms Tribunal while accepting the claim of the petitioner has modified the declaration filed by the declarant by reducing his extent so far as the land in question is concerned. The Tribunal lost sight of the fact that the declaration attained finality when the Land Reforms Tribunal, Bandar by its order dated 24-01-1986 had redetermined the holdings of the declarant and arrived at his excess ceiling area equivalent to 0.8554 Standard Holdings. Even if the land in question is held to be belonging to the petitioner, the said declaration so far as respondent No.2 is concerned, having attained finality, the determination made therein could not have been revised by the primary Tribunal. In the result, therefore, so far as the claim of the petitioner with respect to the land admeasuring Acs.2.78 cents in R.S No. 26/1A and 26/1B of Vinjaram Village is concerned, the same shall stand excluded from the proceedings of surrender in view of the petitioner establishing his claim. However, the State shall be free to select the excess land determined against respondent No.2 declarant, surrendered from other holdings. The revision petition is accordingly allowed. No order as to costs. VILAS V. AFZULPURKAR, J 04-03-2010 ks