When the petitioners are in settled possession, they cannot be dispossessed: Andhra Pradesh HC

THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION Nos.803 and 106121 COMMON ORDER: These two writ petitions are filed by one Appinedi Pothuraju and Sayyed Jany under Article 226 of the Constitution of India for issue of Writ of Mandamus declaring the action of the respondent No.1 in interfering with possession and enjoyment of the petitioners over the land admeasuring 310.25 Sq.Yds and 351 Sq.Yds respectively situated in R.S.R.No.671 1A of Pedana village and mandal Krishna District without following due process of law as arbitrary illegal and consequently direct respondent No.1 not to interfere with the civil dispute pending between the petitioners and respondent No.3 over the land referred above. Both these petitions are filed claiming identical relief by different petitioners having different extents of land in the same survey number in Pedana Village and Mandal Krishna District and the issue involved in these two petitions is one and the same. Therefore I am of the view that it is expedient to decide both these petitions by common order. The factual matrix in W.P.No.8021 is as follows: Petitioner is claiming that he is the absolute owner of the land 310.25 Sq.Yds situated in R.S.R.No.671 1A of Pedana village and mandal Krishna District with exclusive possession and enjoyment by virtue of Registered Gift Deed bearing Doc.No.865 2011 dated 16.05.2011 executed by his father. Petitioner s father purchased the said land under Registered Sale Deed bearing Doc.No.1905 2009 from Chennakcsavula Rambabu and Thota Paideshwar Rao. They have also purchased the said land under Registered Sale Deed from MSM J wps_803 and 10612_2021 Sala Sreenu. Respondent No.3 herein filed O.S.No.111 against her family members and others for partition of the land. The petitioner s land is also part of the item No.2 of the schedule property in the Partition Suit and he was added as defendant No. 14. On contest the said suit was dismissed. Aggrieved by the same the respondent No.3 filed A.S.No.178 of 2019 and the same is pending before this court. Since there is a threat of encroachment by the neighbours petitioner intended to clean the bushes in the land and construct the compound wall and house after obtaining the permission from the Municipality. After dismissal of the suit the petitioner informed the said fact to respondent No.1 and once again started clearance of bushes in his land but the staff of respondent No.1 office came and directed the petitioner not to do any activity in the land on the ground that A.S.No.1719 filed by respondent No.3 which is pending before this Court. Respondent No.1 is no way concerned with the dispute pending between the petitioner and respondent No.3 in A.S.No.178 of 2019 on the file of this Court. Without following due process of law respondent No.1 is interfering with petitioner s possession and enjoyment at the instance of the respondent No.3 requested to grant relief as claimed in the writ petition. The factual matrix in W.P.No.106121 is as follows: The Petitioner is claiming that he is the absolute owner of the land 351 Sq.Yds situated in R.S.R.No.671 1A of Pedana village and mandal Krishna District with exclusive possession and enjoyment having purchased the same under Registered Sale Deed bearing Doc.No.2167 2014 dated 25.08.2014 executed by his vendor Mohammed Athavulla. The Andhra Pradesh Housing Corporation issued orders dated 28.01.2018 granted housing loan of MSM J wps_803 and 10612_2021 Rs.3 50 000 with subsidy benefit of Rs.2 50 000 sponsored by the Central and State Government. When the petitioner intended to construct house respondent No.1 without following due process of law is interfering with his possession and enjoyment. When the petitioner raised the tin roof shed in the land the staff from the office of respondent No.1 without issuing any notice straightaway demolished the shed. The petitioner erected thatched shed and carrying on mutton business in the said premises. No dispute was raised by any person including the respondent Nos.3 and 4 against possession and enjoyment of the land. Respondent No.3 filed O.S.No.16 of 2011 against his vendor and others for partition and the said suit was dismissed. Thereafter respondent No.3 filed A.S.No.178 of 2019 and the same is pending before this Court. Respondent No.4 is also not disputing the possession and enjoyment of the petitioner over the land. Respondent No.4 is claiming the land admeasuring Ac.1.00 cents as per the gift deed alleged to have executed by the vendor out of the total extent of Ac.2.50 cents and filed O.S.No.174 of 2014 against one Mohammed Ibrahim and obtained exparte decree dated 26.10.2018. While things stood thus respondent No.1 without following due process of law is trying to interfere with his possession and preventing him to raise construction of the building in the said land on the ground that in the year 2014 the respondent passed an order under section 146of the Code of Criminal Procedurein M.C.No.37 of 2014 dated 22.12.2014 in respect of the land extent Ac.2.50 cents in R.S.No.671 1A and his extent is also located in the said land. Once the rights and title of his vendor has been adjudicated by the competent civil court and absolutely there is no dispute was raised by any person over the subject land respondent No.1 without MSM J wps_803 and 10612_2021 following due process of law should not interfere with his possession and respondent No.1 is not entitled to prevent him from making construction of the building. The persons who have got legitimate rights have agitated their rights through court of law and the competent civil court adjudicated the dispute passed the final judgment. At this stage the action of respondent No.1 in trying to interfere with his peaceful possession and enjoyment and preventing him to raise construction of the building is illegal and arbitrary requested to grant relief as claimed in the writ petition. As this Court granted interim order respondent No.3 filed vacate stay petition along with counter denying all the material allegations inter alia contending that the petitioner in W.P.No.803 of 2021 has no locus standi to file the present petition. One Hayath Bee who was the sister of late Hasan Ali father of respondent No.3 was the original owner of the land admeasuring Ac.4.00 in Sy.No.671 1 Pedana village and mandal Krishna District. Out of the said Ac.4.00 cents she gifted Ac.1 00 cents to Ajmathunnisa who is the sister of respondent No.3 out of love and affection and for her bright future by virtue of registered document No.1269 1963 who is the daughter of Hasan Ali. Father of respondent No.3 succeeded the land admeasuring Ac.3.00 cents from Smt. Hayath Bee and out of the said land of Ac.3.00 his father sold Ac.1.76 cents to subsequent purchasers. Father of the respondent No.3 possessed Ac.1.24 cents of land in Sy.No.671 1. As such out of remaining Ac.3.00 of land only Ac.1.24 cents is left after alienation by the father of respondent No.3. It is further contended that the brother of respondent No.3 by name Athaullah Mohammad got managed the revenue authorities and obtained patta for Ac.2.50 cents of land instead of Ac.1.24 cents MSM J wps_803 and 10612_2021 of land. After obtaining patta his brother started executing various sale deeds in favour of third parties. As the brother of respondent No.3 did not come forward for partition of the property left behind by his father who died intestate he filed O.S.No.111 on the file of X Additional District and Special Sessions Judge Krishna for partition. The said suit was dismissed on 31.12.2018. Aggrieved by the decree and judgment he filed A.S.No.178 of 2019 which is pending for adjudication. The land claimed by the present writ petitioner is part and parcel of the schedule land mentioned in the suit. When his brother s title and possession over the subject land is disputed the writ petitioner cannot claim possession over the said land. The writ petitioner suppressing all these facts filed the present writ petition and obtained interim direction in I.A. No.1 of 2021 directing the Tahsildar not to interfere with the possession of the writ petitioner without following due process of law if he is in possession. It is further contended that due to the execution of multiple sale deeds by the brother of respondent No.3 without being in possession of the land several disputes and law and order problem arose. On the requisition of police the Tahsildar issued 145 Cr.P.C. proceedings and appointed Revenue Inspector as Receiver to the said land and now the Tahsildar is the custodian of the subject land. As such it is crystal clear that the writ petitioner is not in possession over the subject land. More over when a comprehensive appeal is pending before this Court with regard to the subject land the writ petitioner cannot claim to be in possession requested to dismiss the writ petition. Respondent No.1 filed counter in W.P.No.10612 of 2021 denying the material allegations narrating the history of the case. MSM J wps_803 and 10612_2021 The specific contention of respondent No.1 is that there is a civil dispute between the petitioner in W.P.No.10612 of 2021 and respondent Nos.3 and 4 regarding land admeasuring 351 Sq.Yds situated in Rs.671 1A of Pedana Village of Krishna District which led to initiation of proceedings under Section 146in M.C.No.37 of 2014 dated 22.12.2014. Since civil suit is pending the Tahsildar Pedana being the Executive Magistrate has promulgated orders under Section 146of Cr.P.C. to maintain law and order and also to maintain peace and tranquillity and the same is in force. Thus the subject land is in the custody of Revenue Inspector and the petitioner has nothing to do with the possession of the land requested to dismiss the writ petition. During hearing Mrs.P.Srilatha Reddy learned counsel for the petitioners in both the petitions would contend that when the petitioners are in possession and enjoyment of the property either of the respondents cannot dispossess them without following due process of law. There is absolutely no order of prohibition against the enjoyment of the property by the petitioners having acquired title either under the Gift deed or sale deed by both the petitioners and the proceedings initiated under Section 146 and 145 of Cr.P.C. will not come in the way of the petitioners to enjoy the property and on the pretext of initiation of proceedings under Section 146and 145 of Cr.P.C. the respondents cannot interfere with the possession and enjoyment of the property. Unless undue interference of respondent No.1 is prevented it is difficult for the petitioners to protect their possession requested to issue a direction as sought for in the petition. MSM J wps_803 and 10612_2021 Sri B.Mayur Reddy learned counsel for respondent No.3 would submit that when the appeal is pending before this Court regarding partition of the property more particularly when the disputed property is part and parcel of schedule land mentioned in the suit no order be issued restraining respondent No.1 from interfering with the enjoyment of the property allegedly by the petitioners but the petitioners obtained interim direction suppressing real facts requested to dismiss the writ petition. It is an undisputed fact that the land admeasuring Ac.4.00 cents in Sy.No.671 1 Pedana Village and Mandal Krishna District originally belongs to one Hayath Bee sister of father of respondent No.3. As she died issue less father of respondent No.3 succeeded Ac.3.00 cents from Hayath Bee. Out of Ac.3.00 cents father of respondent No.3 late Hasan Ali sold Ac.1.76 cents while retaining Ac.1.24 cents. Later brother of respondent No.3 Athaullah Mohammad got managed the revenue authorities obtained pattadar passbooks and title deeds in his favour for an extent of Ac.2.50 cents instead of Ac.1.24 cents executed sale deeds in favour of third parties. Later there were transactions among third parties. The petitioners are claiming title from Athaullah Mohammad and the property was transferred to different persons after obtaining sale deed from the brother of respondent No.3. Thus the execution of sale deed by Athaullah Mohammad conveying the disputed property which is the subject matter of suit O.S.No.16 of 2011 on the file of the X Additional District and Sessions Judge Machilipatnam for partition which was dismissed on 31.12.2018 and the appeal is pending in A.S.No.1719 before this Court are not in dispute. No interim order was granted during pendency of suit or in the MSM J wps_803 and 10612_2021 appeal. Therefore the sale of property in favour of third parties is valid till the suit is decreed. However at this stage it is difficult to conclude that the possession of the petitioner is unauthorised or illegal or without any title. Learned counsel for respondent No.3 in the vacate stay petition pleaded additional facts regarding filing of suit O.S.No.174 of 2014 on the file of the Principal Junior Civil Judge Machilipatnam by Mohammed Khizre Alam for permanent injunction to restrain Mohammed Ibrahim his men and supporters from interfering with his peaceful possession and enjoyment of the land in an extent of Ac.1.00 cents in Sy.No.671 1671 1Asituated in Pedana Village and Mandal Krishna District based on the gift deed bearing No.11714 dated 04.07.2014 obtained from his junior maternal aunt Ajmathunnissa @ Ajmathunnissa Begum and the said suit was decreed on 26.10.2018 in favour of Mr. Mohamammed Khizre Alam restraining the Mohamammed Ibrahim his followers and supporters from interfering with the possession and enjoyment of the said property in Sy.No.671 1 671 1A situated in Pedana Village and Mandal Krishna District. The petitioner s vendor s vendor Mr.Sala Srinu filed implead petition vide I.A.No.29214 in O.S.No.174 of 2014 which was dismissed on 28.08.2015 on specific ground. In the said suit in O.S.No.1714 certain other parties by name Mr. Mohd. Habibul Rehman Mr. Mohd. Vasivul Reham Mr. Abdul Waheed and Habeebunissa filed implead petition vide I.A. No.3114 and the same was dismissed on the ground that they had no right or interest in the Plaint schedule property and the C.R.P.No.50 2016 filed against the order was also ended in dismissal on 08.07.2016. MSM J wps_803 and 10612_2021 It is also stated in the vacate stay petition that one Mr. Mohd. Khizre Alam filed W.P.No.28589 of 2014 praying to direct Commissioner Pedana Municipality to take immediate action on the representation of the petitioner dated 20.08.2014 which led to initiation of proceedings under Section 146 of Cr.P.C. and also explained pendency of litigation in different Courts. Thus as seen from the material on record A.S.No.1719 is pending before this Court for adjudication but the suit O.S.No.174 of 2014 filed by Mohammed Khizre Alam was decreed restraining Mohammed Ibrahim his men and followers by decree dated 26.10.2018. The decree in O.S.No.174 of 2014 is binding on Mohammed Ibrahim his men and followers but not binding on any of the petitioners. If any of the petitioners are claiming title to the property through him it is binding on them. However the petitioners claiming title to the property based on registered gift deed bearing No.8611 dated 16.05.2011 and sale deed document No.2167 of 2014 dated 25.08.2014 respectively which are still valid as on date. Therefore the petitioners are deemed to be in possession and enjoyment of the property in their own right by virtue of gift deed and sale deed respectively. In any view of the matter when respondent No.1 W.P.No.106121 admitted about the pendency of civil disputes the possession and enjoyment of either of the petitioners and respondents cannot be decided by this Court while exercising power under Article 226 of the Constitution of India and in view of the judgment passed in O.S.No.1714 by the Principal Junior Civil Judge Machilipatnam the possession of the petitioner MSM J wps_803 and 10612_2021 W.P.No.106121 is doubtful since he is claiming right through Mohammed Ibrahim. Therefore the title is in dispute. The petitioner in W.P.No.803 of 2021 to substantiate his contention that he is in possession of the property placed on record gift deed dated 16.05.2011 executed in his favour by his father gifting 310.25 Sq.Yds. So also sale deed obtained by his father from Chennakesavula Rambabu. He also produced tax receipts evidencing payment of tax for the house constructed in NTR Colony Ward No.8 Pedana with assessment No.1072008778. These documents cumulatively establish that the petitioner in W.P.No.803 of 2021 is residing in the house and paying property tax to the Municipality but the house is in existence in the disputed land. Therefore the petitioner is able to establish his possession and enjoyment over the property irrespective of the title to the property which is the subject matter of A.S.No.178 of 2019. Thus the petitioner cannot be dispossessed except by due process of law notwithstanding the nature of the possession. Hence any amount of interference with the possession and enjoyment of the property by respondent No.1 without following due process of law is illegal and arbitrary as respondent No.1 has no right to interfere with such possession irrespective of its nature. Hence the alleged attempt of respondent No.1 to interfere with the possession and enjoyment of the petitioner over the subject property is without any right and the same is declared as illegal arbitrary and violative of Article 14 and 300 A of the Constitution of India. When the petitioner in W.P.No.106121 is claiming to be in possession it is for him to produce material to substantiate his contention. To substantiate the contention of the petitioner the MSM J wps_803 and 10612_2021 petitioner in W.P.No.106121 produced copy of sale deed trade license issued by Pedana Municipality orders issued by the A.P.State Housing Corporation to establish that he is in possession of the property carrying on mutton business. The documentary evidence produced by the petitioner in W.P.No.106121 would establish that the petitioner is in possession and enjoyment of the property as on date irrespective of title based on sale deed bearing document No.2167 of 2014. Hence any amount of interference with the possession and enjoyment of the petitioner by respondent No.1 is illegal and arbitrary. Section 146 of Cr.P.C. says that if the Magistrate at any time after making the order under sub section of section 145 considers the case to be one of emergency or if he decides that none of the parties was then in such possession as is referred to in section 145 or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. Such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. Sub sectionof Section 146 of Cr.P.C. has no application as respondent No.1 is contending that revenue inspector was appointed as receiver. In the facts and circumstances of the case the trial Court already determined the rights of the parties in O.S.No.16 of 2011 however A.S.No.178 of 2019 is pending before this Court. In such case a person in possession cannot be dispossessed by appointing a receiver since the said person established his prima facie possession. MSM J wps_803 and 10612_2021 from that the dispute is purely between two private individuals but taking advantage of the situation respondent No.1 is trying to interfere with the possession and enjoyment of the property which is impermissible under law. Further when the petitioners are in settled possession and enjoyment of the property they cannot be dispossessed without following due process of law in view of the law declared by the Apex Court in “Rame Gowda by L.Rs. v. M.Varadappa Naidu Dead) by L.Rs.1”. Applying the said principle to the facts of the present case I find that the action of respondent No.1 in interfering with the possession and enjoyment of the petitioners over the subject property is illegal and arbitrary. In the result the writ petitions are allowed declaring the action of the respondent No.1 in interfering with possession and enjoyment of the petitioners over the land admeasuring 310.25 Sq.Yds and 351 Sq.Yds respectively situated in R.S.R.No.671 1A of Pedana village and mandal Krishna District without following due process of law as arbitrary and illegal. No costs. The miscellaneous petitions pending if any shall also stand closed. JUSTICE M. SATYANARAYANA MURTHY 1 2004SCC 769 

Summary:  A person in possession cannot be dispossessed by appointing a receiver since the said person established his prima facie possession. It is impressible under the law for another person to enjoy the property by dispossessing the person who has legal possession of the property, as was held in the matters between Appinedi Pothuraju v Tahsildar by  Hon’ble Justice M. Satyanarayana Murthy in WP Nos.803 and 10612 of 2021, decided on 7 January,2022. The two writ petitions were filed by Appinedi Pothuraju and Sayyed Jenny under Article 226 seeking relief since their property was interfered in an arbitrary way without following due process of law. Since the relief pleaded by both the petitions was same, they were taken under Common Order. In the first case, the petitioner claimed that he is the rightful owner of the land since his father purchased the land via a Registered Sale  Deed. The respondent filed against this; however, the potion was dismissed. When  the petitioner started to maintain his land by clearing bushes, he was stopped by the staff of the respondent who tried to interfere into his land by not following due process of law. In the second case, it is claimed that the petitioner being the rightful owner of the land, started to construct the house and while he was doing so, he was interfered by the respondent without following due legal process. It is also contended that the brother of the respondent was selling the land to third parties claiming that the land is in their possession since a dispute in that regard was pending. It was submitted by petitioners that in both the cases, the petitioners are in possession and enjoyment of the property, either of respondents cannot disposes them without following due process of law. Even if there is a proceeding under Section 146 (1) and 145 of Cr. P. C , it does not mean that portioners lose their protection of possession under the law. However, the respondents submitted that the appeal is pending before the court and no order shall be issued to restrain the respondents from interfering the property. The court after hearing the pleadings from both the sides, stated that the dispute is between the two private individuals and the respondents taking advantage of that is impermissible under the law. Applying the precedent set out by the apex court in the case of Rame Gowda (dead) by L.Rs. v. M. Varadappa Naidu (Dead) by L.Rs., the court stated that , when the petitioners are in settled possession and enjoyment of the property, they cannot be dispossessed, without following due process of law in view of the law. The court declared the actions of the respondent of interring into the portioners property without following the due process of law as arbitrary.