THE HON'BLE SRI JUSTICE M.GANGA RAO
WRIT PETITION NOs. 7117 OF 2019 & 8170 OF 2019
COMMON ORDER:
The petitioners filed these two writ petitions
complaining interference of the official respondents without
following due procedure established by law. The cause of action for both the writ petitions arises out of the same facts and question of law. Hence, these two writ petitions are taken up for adjudication and disposed of by this common order.
2. The petitioners state that they are the absolute owners and possessors of land an extent of Ac.0.11 cents situated in Sy.No.476/4 of Duppituru Village, Atchutapuram Mandal, Visakhapatnam District, by virtue of the registered Gift settlement deed dated 31.12.2018 executed by one K.Venkata Rao and K.Satyanarayana vide Document No.8035 of 2018. They state that originally one Narasimhamam was the absolute owner and possessor of the land in Sy.No.476 of Duppituru Village. The said Narasimhamam executed a registered sale deed dated 08.07.1991 in favour of K.Devudu and Ramaswamy in respect of the land an extent of Ac.1.16 cents situated in Sy.No.476/4 and land an extent of Ac.1.55 cents situated in Sy.No.477 of Duppituru Village, Atchutapuram Mandal, Visakhapatnam District. In family partition between Demudu and Ramaswamy, land an extent 2 of Ac.0.48 cents situated in Sy.No.476/4 was fallen to the share of Ramaswamy. The remaining extent was allotted in favour of Demudu. The said Ramaswamy had three children, namely, Nageswara Rao, Venkata Rao and Satyanarayana. The said three brothers inherited the land and in oral partition, the land an extent of Ac.0.48 cents in Sy.No.476/4 was allotted in favour of Venkata Rao. He was issued a pattadar passbook No.874 in respect of the land an extent of Ac.0.45 cents instead of Ac.0.48 cents by the Mandal Revenue Officer, Atchutapuram Mandal. Devudu died in the year 2016. The adangals also reflect the name of Ramaswamy. The recent adangal dated 01.08.2018 reflects the name of the donor of the petitioners by name K.Venkata Rao. K.Venkata Rao constructed a thatched shed in that land and applied for electricity connection. The Electricity department provided electricity connection vide S.C.No.113442A016001572 to the thatched shed. He paid electricity charges regularly, without any default. As per the Gift settlement deed dated 31.08.2018, the petitioners took possession of thatched shed. The petitioners made an application to change the electricity connection in their name. The petitioners further state that while things stood thus, surprisingly on 27.06.2019, the respondent officials/ Electricity department affixed a letter dated 24.06.2019 to their thatched shed which was addressed to their donors stating that a civil suit is pending in O.S.No.28 of 2018 and that one L.Demudamma made a 3 complaint to disconnect the power connection, and therefore, a notice was issued to submit the documents. In the meanwhile, the Panchayat Secretary issued a letter to the electricity authorities that they cancelled the No objection letter which was issued by them in favour of the donor of the petitioners. Hence, they disconnected the power connection on 27.06.2019 highhandedly. They submit that the dispute in O.S.No.28 of 2018 is in respect of the other land but not the present subject land. But, the electricity authorities without conducting any enquiry illegally disconnected the power connection on the instructions of local M.L.A. In fact, they are residing in the thatched shed since December, 2018 and in view of the disconnection of power supply, they are suffering irreparable loss and injury. They further state that when the revenue authorities are trying to interfere with their possession, they filed Writ Petition No.7117 of 2019 before this Court and this Court granted interim direction on 11.06.2019 directing the revenue authorities not to dispossess the petitioners from the subject land without following due process of law. Devudamma now by colluding with the local MLA pressurized the respondents 2 and 3 to disconnect the power connection and the respondent authorities even though they are nothing to do with the civil disputes, without conducting any enquiry, illegally disconnected the power connection.
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3. This Court, by order dated 28.06.2019 in W.P.No.8170 of 2019, directed the respondent authorities therein to restore the electricity service connection vide bearing S.C.No. 113442A016001572 to the premises situated in Sy.No.476/4 of Duppituru Village, Atchutapuram Mandal, Visakhapatnam District, forthwith.
4. In both the writ petitions, the impleaded respondents (as respondents 4 to 8 in W.P.No.8170 of 2019 by order dated 06.02.2020 passed in I.A.No.2 of 2019 and as respondents 5 to 9 in W.P.No.7117 of 2019 by order dated 13.02.2020 passed in I.A.No.2 of 2019) filed counter denying the averments of the affidavit stating that their grandfather by name Kundrapu Narasimham S/o.Venkayya was the absolute owner and possessor of land to an extent of Ac.0.45 cents out of Ac.1.16 cents situated in Survey No.476/4 of Duppituru Village, Atchutapuram Mandal, Visakhapatnam District, having purchased the same through a registered Sale deed vide Document No.1468 of 1953 dated 19.05.1953. He was in continuous possession and enjoyment of the same. He had no issues, but he adopted their father by name Kundrapu Kondadu and their father filed a suit in O.S.No.201 of 1971 against their grandfather - Kundrapu Narasimham for partition of the suit schedule properties into two half shares and for allotment of separate possession. One Pyla Narasimham Naidu (who was the 4th defendant in O.S.No.201 of 1971) claimed that he was the adopted son of Kundrapu 5 Narasimham S/o.Venkanna. After contest, the suit was decreed by holding that their father was the adopted son of their grandfather-Kundrapu Narasimham. It was also held that the transactions that took place during pendency of the suit including the Sale deed dated 08.07.1991, through which the writ petitioners are claiming source of title was creative and collusive document. The same was brought into existence to show that Pyla Narasimham Naidu was the adopted son of their gather. The said judgment and decree had become final. After the death of their grandfather, their father was in continuous possession and enjoyment of the land and after the demise of their father, they succeeded to the property. Since then, they have been in continuous possession and enjoyment of the land. The writ petitioners have no manner of right, title and possession to the subject land and even otherwise they prayed for writ of Mandamus for non-existing land. The husband of the 1st petitioner by name K.Venkata Rao got only Ac.0.45 cents in Survey No.476/4 and he sold the same to one Dharmireddy Satyam under the registered Sale deed dated 11.09.2017 and the entire land has been accounted. Therefore, there is no land available to the husband of the 1st petitioner to convey the subject land of Ac.0.11 cents in Survey No.476/4 in favour of the writ petitioners. The petitioners filed these writ petitions in collusion with their husbands by suppressing true and material facts including filing of O.S.No.28 of 2018 on the file 6 of the Principal Senior Civil Judge, Yalamanchili against the donor - husband of the 1st petitioner, for declaration of title and injunction and no injunction orders are obtained till date.
5. Sri A.S.C.Bose, learned counsel for the petitioners, would contend that by virtue of registered Gift Settlement deed dated 31.12.2018, the petitioners have been in possession of the land to an extent of Ac.0.11 cents situated in Survey No.476/4 of Duppituru Village. They made an application on 05.06.2019 to the Electricity department to change the electricity connection vide S.C.No. 113442A016001572 in their name from the donor's name. The revenue officials and electricity department officials are interfering with their peaceful possession and enjoyment without following due process of law and disconnected the power supply. In view of the interim directions of this Court dated 28.06.2019 passed in W.P.No.8170 of 2019, the electricity service connection was restored and now the petitioners are in continuous possession and enjoyment of the subject land.
6. Sri Prabhala Rajasekhar, learned counsel appearing for the impleaded unofficial respondents, would contend that the impleaded respondents have been in continuous possession and enjoyment of the land to an extent of Ac.0.45 cents out of Ac.1.16 cents situated in Survey No.476/4. Their grandfather by name Kundrapu Narasimham succeeded in the suit in 7 O.S.No.201 of 1971. The vendors' vendor of the writ petitioners have no title and no land is existing on ground. By suppressing the pendency of the suit in O.S.No.28 of 2018 on the file of the Principal Senior Civil Judge, Yalamanchili and misrepresenting the electricity department, the writ petitioners obtained electricity service connection, for which the 4th respondent filed a complaint to the electricity department and on her complaint, they issued notices and disconnected the power supply. The contention of the writ petitioners that on the influence of the local M.L.A. the respondents 2 and 3 are interfering with their possession and enjoyment, is false and in fact the writ petitions are devoid of merit and are liable to be dismissed.
7. In the facts and circumstances of the case and considering the submissions of the learned counsel, and on perusal of the record, this Court found that to decide the lis between the parties, the disputed questions of fact in respect of the land to an extent of Ac.0.11 cents situated in Sy.No.476/4 of Duppituru Village, Atchutapuram Mandal, Visakhapatnam District and its possession by the contending parties do arise for consideration. Normally, this Court while exercising power under Article 226 of the Constitution of India cannot embark on the disputed questions of fact by conducting roving enquiry into the documents of their claim and possession.
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8. The impleaded respondents are already filed suit in O.S.No.28 of 2018 for declaration of title and for permanent injunction before the Principal Senior Civil Judge, Yalamanchili and they can effectively pursue the said suit. Whereas, the grievance of the writ petitioners is that they are in possession and enjoyment of the land to an extent of Ac.0.11 cents by virtue of Gift settlement deed and obtained electricity connection and staying in the said property and the respondents 2 and 3 at the instance of the local M.L.A. are interfering with their possession and enjoyment without following due process of law.
9. The official respondents are not filed any counters in these writ petitions. In these circumstances, the respondents 2 and 3 in W.P.No.7117 of 2019 are directed not to interfere with the possession and enjoyment of the petitioners over the subject property without following due process of law. The respondents in W.P.No.8170 of 2019 are also directed not to disconnect the power supply of the petitioners' thatched house premises, without any notice and opportunity as per law. However, the writ petitioners are directed to approach the Civil Court for any interference of the impleaded respondents and if the official respondents are interfering without following due process of law, obtain appropriate orders to protect their possession and enjoyment from the competent Civil Court. Therefore, both the parties are relegated to the Civil Court to obtain necessary orders to 9 protect their possession and enjoyment. The Civil Court, if the petitioners approached, shall decide the lis without being influenced by any of the observations made in these writ petitions.
10. Accordingly, both the Writ Petitions are disposed of with the above observation. No order as to costs.
11. Miscellaneous Petitions, if any, pending in these two writ petitions shall stand closed.
___________________________ JUSTICE M.GANGA RAO 07-01-2021 anr 10 THE HON'BLE SRI JUSTICE M.GANGA RAO WRIT PETITION NOs. 7117 OF 2019 & 8170 OF 2019 07-01-2021 anr