HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.20595 OF 2019
ALONG WITH I.A. No.1 OF 2021
COMMON ORDER:
This writ petition is filed to declare the action of respondent
No.3 in not providing the police protection to the petitioners for cultivating their agricultural lands admeasuring Acs.4-25 guntas in Survey No.189 and Ac.0-38 guntas in Survey No.188, making a total extent of Acs.5-22 guntas, situated at Dayara Village of Keesara Mandal, Medchal- Malkajgiri District, albeit there is a judgment and decree in O.S. No.1210 of 2008 against respondent Nos.4 and 5 and also despite receipt of complaint dated 09.07.2019, as illegal, and for a consequential direction to respondent No.3 to provide police protection for cultivating the lands, whereas, I.A. No.1 of 2021 is filed by respondent No.4 seeking to vacate the interim orders, dated 20.09.2019 passed by this Court in I.A. No.1 of 2019.
2. FACTS:
i. The petitioners herein are claiming that they are the owners of agricultural lands, admeasuring Acs.4-25 guntas in Survey No.189 and Ac.0-38 guntas in Survey No.188, making a total extent of Acs.5-22 guntas, situated at Dayara Village of Keesara Mandal, Medchal- Malkajgiri District, which is hereinafter referred to as 'subject lands', having purchased the same under KL,J W.P. No.20595 of 2019 2 registered sale deeds bearing document Nos.9152 of 2003, 10078 of 2003, 6365 of 2004 and 6366 of 2004. ii. They are in possession of the subject lands by erecting fencing with khadis and barbed wires.
iii. Their names were mutated in the revenue records, and the Revenue Authorities have also issued Pattadar Pass Books and Title Deeds in their favour.
iv. They are cultivating the subject lands. v. When respondent Nos.4 and 5 along with anti-social elements tried to interfere with their possession and enjoyment over the subject lands, they have filed a civil suit vide O.S. No.1210 of 2008 on the file of the Principal Senior Civil Judge, Ranga Reddy District at L.B. Nagar against them for perpetual injunction.
vi. The said suit has decreed vide judgment and decree dated 10.07.2018 and, thus, respondent Nos.4 and 5 were restrained from interfering with the peaceful possession and enjoyment of the petitioner over the subject lands.
vii. The said judgment and decree dated 10.07.2018 is in force.
3. Heard Mr. Gaddam Srinivas, learned counsel for the petitioners and Mr. J. Prabhakar, learned counsel for respondent No.4 KL,J W.P. No.20595 of 2019 3 and also Mr. S. Rama Mohana Rao, learned Assistant Government Pleader appearing on behalf of respondent Nos.1 to 3.
4. CONTENTIONS OF PETITIONERS:
i) Learned counsel for the petitioners would contend that on 07.07.2019, respondent Nos.4 and 5 along with anti- social elements came over the subject lands, removed the khadis and erected small stones and created hurdles, and thereby they have disobeyed the above said judgment and decree passed in O.S. No.1210 of 2008.
ii) He would further submit that then the petitioners have lodged a complaint with respondent No.3 dated 09.07.2019 requesting the police to provide police aid for implementation of the said judgment and decree in O.S. No.1210 of 2008.
iii) Despite receiving and acknowledging the said complaint, respondent No.3 did not act upon it.
iv) They have also filed E.P. against respondent Nos.4 and 5 for willfully disobeying the said judgment and decree and detaining them in civil prison along with an application seeking for police aid.
v) Therefore, the petitioners filed the present writ petition.
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5. This Court while admitting the writ petition on 20.09.2019, directed respondent No.3 to provide necessary police aid to the petitioners for implementation of injunction order, dated 10.07.2018 passed in O.S. No.1210 of 2008.
6. On receipt of notice, respondent No.4 made his appearance through his counsel and filed counter along with vacate stay petition vide I.A. No.1 of 2021 in W.P. No.20595 of 2019.
7. CONTENTIONS OF RESPONDENT No.4
i) Learned counsel for respondent No.4 would submit that originally, there is a Lay Out called 'Dayanand Nagar Colony in Survey Nos.189 and 190 at Keesara Village, Medchal - Malkajgiri District done way back on 11.10.1985 and plots were laid to an extent of Acs.4-20 guntas by assigning plot numbers.
ii) Original Pattadars had executed a registered GPA bearing document No.934 of 1985, dated 26.08.1985 in favour of Mr. Seelam China Ramaiah and Mr. Dayanand to sell and register the plots. Pursuant to the same, they sold the plots after laying the lay out to several persons, who have been in possession and enjoyment of the same as bona fide purchasers since then.
iii) Thereafter, Mr. Seelam China Ramaiah executed a registered GPA bearing document No.689 of 1986 dated KL,J W.P. No.20595 of 2019 5 20.05.1986 in favour of Mr. M. Dayanand for the purpose of selling the plots.
iv) Mr. M. Dayanand, the GPA Holder of the Pattadars filed a petition under Section - 5 (5) of ROR Act for cancellation of Pattadar Pass Books issued in favour of Pattadars after the plots were laid and the Special Grade Deputy Collector and RDO vide proceedings No.A2/116/2006, dated 29.09.2006, cancelled the Pattadar Pass Books / Title Deeds which were issued by MRO, Keesara Mandal, and directed to take steps to recover the said deeds. The said orders have become final.
v) The Tahsildar, Keesara Mandal, on the application made by respondent No.4 and 5 and after getting report from the Mandal Revenue Inspector under Memo No.B/41/2014, dated 10.01.2014, directed the Village Revenue Officer to record as "Plots" in the pahanies to an extent of Acs.4.00 guntas in the subject survey numbers.
vi) Respondent No.4 is owner of plot No.1, admeasuring 256 square yards in the said lay out vide registered document No.15557 of 2018 dated 08.08.2018 having purchased from one Ms. Konda Lakshmi Devi, who purchased the same under registered sale deed bearing document No.8092 of 1985, dated 05.12.1985.
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vii) He is also owner of plot No.2, in the said lay out vide registered document No.15558 of 2018 dated 08.08.2018 having purchased from his Vendor, who purchased the same under registered sale deed bearing document No.8091 of 1985, dated 05.12.1985.
viii) He is also owner of Plot Nos.52, 55, 56 and 61 purchased under registered sale deed bearing document No.2380 of 2018, dated 15.02.2018.
ix) Besides the above said plots, M/s. Satavahana Associates, represented by respondent No.4 herein, acquired Plot Nos.59, 35, 12 and 16 under an Agreement of Sale - cum
- GPA, dated 09.12.2005, and so also Plot No.58, admeasuring 335 square yards under Agreement of Sale - cum - GPA, dated 11.04.2005.
x) The Pattadars, who had already alienated the land to third party and after laying the plots, sold the very same land as agricultural land which was then non-existing as agricultural land.
xi) Based on the said fraudulent documents, the petitioners herein are trying to occupy the land and clandestinely trying to change the nature of land and the subject lands;
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xii) After obtaining ex parte decree and interim orders from this Court, the petitioners have been making attempts to remove the boundaries and make it into a plain land.
xiii) Then he gave a complaint to the Tahsildar on 10.05.2021;
xiv) Prior to the said complaint, he also gave a complaint to the Police, Keesara and the same was registered as FIR No.118 of 2021 against the petitioners.
xv) The petitioners are not entitled for any police protection as the land in Survey Nos.189 and 190 is non-existent. xvi) Since the petitioners obtained ex parte decree, he filed a petition vide I.A. No.1077 of 2019 in O.S. No.1210 of 2008 to set aside the ex parte decree and the same is pending.
xvii) With the aforesaid contentions, learned counsel for respondent No.4 sought to dismiss the writ petition by vacating the interim orders passed by this Court on 20.09.2019.
8. FINDING OF THE COURT:
i) In view of the above rival submissions and a perusal of the record would reveal that both the petitioners and respondent No.4 are claiming right over the very same land. According to the petitioners, the subject land is in Survey Nos.188 and 189 of Dayara Village, KL,J W.P. No.20595 of 2019 8 Keesara Mandal, Medchal - Malkajgiri District, whereas, respondent No.4 claiming that his plots are in Survey Nos.189 and 190 of the very same village. It appears the survey number in which both the parties are claiming is 189. According to respondent No.4, Mr. Dayanand and Mr. Seelam China Ramaiah were the GPA Holders of original Pattadars, and after developing the said land by converting them into plots, they have sold the plots to various people including respondent No.4 herein. The original pattadars, who had already alienated the land to third party and after laying the plots, sold the very same land as agricultural land which was then non-existing as agricultural land. Thus, both the petitioners and respondent No.4 are claiming right, title and possession over the same land.
ii) A perusal of the judgment and decree dated 10.07.2008 passed in O.S. No.1210 of 2008 would reveal that it was an exparte decree. According to the petitioners, respondent Nos.4 and 5 after entering their appearance through their counsel, remained ex parte and, therefore, the Court below passed the judgment and decree ex parte on 10.07.2018. According to the petitioners, the said judgment and decree were passed on merits, whereas, according to respondent No.4, due to various reasons, he could not appear before the Court below and, therefore, the Court below has passed the said judgment and decree ex parte. Thus, he has filed an application vide I.A. No.1077 of 2019 seeking to set aside the said judgment and decree and the same is pending for consideration.
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iii) A perusal of the record would further reveal that the petitioners herein have also filed an Execution Petition vide E.P. No.98 of 2019 seeking execution of the said judgment and decree in O.S. No.1210 of 2008. The petitioners herein have also filed E.A. in the said E.P. seeking police aid to protect the subject land. All the said facts have been specifically mentioned in paragraph No.8 of the writ affidavit. Thus, according to the petitioners, the said E.P as well as E.A. is pending before the Court below. As stated above, the interlocutory application filed by respondent No.4 seeking to set aside the ex parte judgment and decree in O.S. No.1210 of 2008 is also pending. Thus, the petitioners herein are pursuing parallel remedies i.e., by filing an application before the Court below vide E.A. in E.P. and by way of present writ petition.
iv) There is no dispute with regard to the legal position that this Court under Article - 226 of the Constitution of India is having power to grant police aid. Law is well-settled on the said issue right from the decision in Satyanarayana Tiwari v. S.H.O., P.S. Santhoshanagar1, P. R. Murlidharan v. Swami Dharmananda Theertha Padar2, Union of India v. Major General Madan Lal Yadav (Retd.)3, Kotak Mahindra Bank v. Station House Officer4, A. Bharathi v. State of Telangana5 and as confirmed by a Division Bench of High Court of Judicature at Hyderabad for the States of Telangana and 1 . AIR 1982 AP 394 (DB) 2 . (2006) 4 SCC 501 3 . (1996) 4 SCC 127 4 . 2016 (1) ALD 696 (DB) 5 . 2017 (1) ALD 503 KL,J W.P. No.20595 of 2019 10 Andhra Pradesh in B. Ravi Yadav v. A.Bharathi6. But, the facts in the present case are different. There are serious disputed questions of facts.
v) As discussed supra, the petitioners herein are claiming that they are the absolute owners and possessors of the subject land, whereas, according to respondent No.4, original pattadars through their GPA Holders, have developed the said property by converting them into plots and sold the plots to various persons including respondent No.4 herein. The original pattadars have already sold the said land through their GPA Holders, and again they cannot sell the said land to the petitioners herein. Thus, it is a fraud. There are serious complicated questions of law with regard to right, title and possession of the petitioners which cannot be decided in a writ petition filed under Article - 226 of the Constitution of India. It is settled law that this Court is having power to consider the questions of facts by invoking its power under Article - 226 of the Constitution of India. The Apex Court in ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd.7, and the same was reiterated by a Division Bench, to which I am a Member, of this Court in M/s. Agni Aviation Consultants v. State of Telangana8, but, certainly, not complicated questions of facts alike the present one. 6 . W.A. No.1066 of 2016, decided on 24.10.2016 7 . (2004) 3 SCC 553 8 . (2020) 5 ALD 561 KL,J W.P. No.20595 of 2019 11
vi) In Moran M. Baselios Marthoma Mathews v. State of Kerala9, the Apex Court held that considering the facts of the said case, where 200 civil suits are pending in different Courts in the State with regard to title and possession of the properties of the parties therein which involves serious disputed questions of facts and, therefore, the High Court in revision cannot go into rival contentions of the parties. Matter involving private law remedy cannot be entertained by High Court invoking its extra-ordinary powers under Article - 226 of the Constitution of India.
vii) At the cost of repetition, as discussed above, there are serious complicated questions of facts with regard to the right, title and possession of the petitioners. The same have to be decided by a competent jurisdictional Civil Court. The application filed by respondent No.4 seeking to set aside the judgment and decree in O.S. No.1210 of 2008, E.P. No.98 of 2019 and E.A. seeking police aid are pending.
9. CONCLUSION:
i) As discussed above, the petitioners herein cannot pursue parallel remedies. Thus, the petitioners are not entitled for the relief sought in the present writ petition. In the considered opinion of this Court, the petitioners have to pursue their remedy before the Court below in E.P. No.98 of 2019 in O.S.No.1210 of 2008. The petitioners failed to make out any case to grant relief in their favour as sought in 9 . AIR 2007 SCW 4367 KL,J W.P. No.20595 of 2019 12 this writ petition. The writ petition is devoid of merits and the same is liable to be dismissed.
ii) The present Writ Petition is accordingly dismissed. I.A. No.1 of 2021 is allowed, and the interim order granted by this Court on 20.09.2019 in I.A.No.1 of 2019 stands vacated. However, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the Writ Petition shall stand closed.
_________________ K. LAKSHMAN, J 26th July, 2021 Mgr