1
Dr. GRR, J
crp_1777_2022
THE HON'BLE Dr. JUSTICE G. RADHA RANI
CIVIL REVISION PETITION No.1777 OF 2022
ORDER:
This Civil Revision Petition is filed by the petitioners who are respondent Nos. 1 to 4/defendant Nos.1 to 4 aggrieved by the order dated 28.07.2022 passed in I.A.No.44 of 2022 in O.S.No.51 of 2022 on the file of the Sub-Divisional Magistrate and Special Assistant Agent to Government (Mobile Court) at Bhadrachalam.
2. The parties are herein after referred as arrayed before the trial court.
3. The plaintiffs filed O.S.No.51 of 2022 for permanent injunction and I.A.No.44 of 2022 for the relief of temporary injunction in respect of the petition/suit schedule property. The case of the petitioners-plaintiffs was that originally one late Koutha Suryanarayana purchased the petition-suit schedule property from one Maruthi Sarabaiah S/o. Guravaiah through sada sale deed on stamped paper, dated 29.06.1960. After the death of Suryanarayana, his daughter, late Koutha @ Nandula Padmavathi, w/o. Poornachandra Rao got the schedule property through succession. Thereafter, late Padmavathi paid cisth receipts for the years 1960-61. After the death of late Koutha @ Nandula Padmavathi, her elder son, the husband of Petitioner No.1, Nandula Satyanarayana got a total extent of Ac.7-11gts.
Dr.GRR,J 2 CRP No.1777 of 2022 as kartha of Hindu Undivided Family (for short "HUF") and was issued 13-B Dhruvapathram vide ROR/147/89, Malkaram in the year 1995 and based on the said Dhruvapathram, late Nandula Satyanarayana was also issued pattadar passbook. The said late Nandula Satyanarayana paid cisth receipts for the years 1963-64, 1968-69, 1972-73 and 1979-80. Till the death of Nandula Satyanarayana, he cultivated the schedule land as kartha of HUF. The Land Transfer Regulation (for short "LTR") case Nos. 1320/74 and 763/2000/DPT filed against late Nandula Satyanarayana by Maruthi Chandraiah, S/o. Maruthi Sarabaiah, were also dismissed and orders were passed in favour of Nandula Satyanarayana on 29.08.1975 and 14.03.2001 respectively. After the death of late Nandula Satyanarayana, the Petitioner No.1 got Ac.1-17 1/2 gts. in Survey No.532/2 and an extent of Ac.2-08gts. in Survey No.535/4/2, a total extent of Ac.3-25 1/2 gts. through succession and got pattadar passbook No.T27100080579. The petitioner No.2, the brother of Nandula Satyanarayana got the land to an extent of Ac.1-17 1/2 gts. in Survey No.532/1 and an extent of Ac.2-08gts. in Survey No.535/4/1, a total extent of Ac.3-25 1/2 gts. towards his share and got pattadar passbook No.T27100080580.
4. The respondents without any right or title over the petition-schedule property were trying to trespass and disturb the petitioners' peaceful Dr.GRR,J 3 CRP No.1777 of 2022 possession and were trying to grab the land of the petitioners and to dispossess them high handedly by show of force. On 18.02.2022, the respondents obstructed the petitioner from executing the soil work in the schedule property. Due to timely resistance of the petitioner and other neighbours, the respondents left the place threatening the petitioners with dire consequences. Thereafter, the petitioners approached the Police, Dammapeta to lodge a complaint, but the Police referred the matter to the Tahsildar, Dammapeta for enquiry. Then, the Tahsildar, Dammapeta conducted enquiry and issued his report vide Rc.No.B/147/2022, dated 21.02.2022 in favour of the petitioners and stated in his report that the petitioners were in possession for more than 20 years. The petitioners were apprehending danger to their possession of the schedule property in the hands of the respondents and their henchmen, as such, filed the petition for temporary injunction, and the suit for permanent injunction.
5. The petitioners filed photostat copies of thirteen (13) documents in support of their contention.
6. The respondents filed counter denying the petition averments. They contended that they were the owners and possessors of the schedule land situated at Malkaram Revenue Village of Dammapeta Mandal, Bhadradri- Kothagudem District. The revenue authorities assigned the schedule land to Dr.GRR,J 4 CRP No.1777 of 2022 the respondent's grandfather and issued passbooks for Ac.9-00gts. The name of the respondent's grandfather was recorded as pattadar in the entire revenue records. After the death of the respondent's grandfather and fathers, the respondents came into possession of the schedule land and were raising eucalyptus trees in the schedule land. The petitioners belonged to non-tribal community and were no way concerned with the schedule land and were never in possession of the schedule land at any point of time. The respondent's grandfather late Maruthi Sarabaiah, had not sold the schedule land to anyone. The un-registered sada sale deed filed by the petitioners was not clear and was not admissible in evidence under the Indian Evidence Act. The petitioners created false sale deed and misrepresented the revenue authorities and got the pattadar passbooks. Under the guise of the passbooks, they were trying to occupy the schedule land from the respondents. There was no prima facie case and balance of convenience in favour of the petitioners and prayed to dismiss the I.A.
7. They relied upon the photostat copies of old passbook No.U299483 in Khatha No.690 in favour of Maruthi Chandraiah to an extent of Ac.2- 20gts. in Survey No.535, photostat copy of the assignment patta list unsigned by any authority, photostat copy of hand written lineage of family Dr.GRR,J 5 CRP No.1777 of 2022 tree and photostat copy of TONCH Map issued by the Survey Inspector, Bhadradri-Kothagudem District.
8. On considering the oral and documentary evidence on record, the Sub-Divisional Magistrate and Special Assistant Agent to Government (Mobile Court), Bhadrachalam passed orders making absolute the ex-parte temporary injunction order granted in favour of the petitioners-plaintiffs restraining the respondents-defendants from interfering with the petitioner's possession and enjoyment of the schedule property.
9. Aggrieved by the said orders passed by the Special Assistant Agent to Government (Mobile Court), Bhadrachalam, the respondent Nos. 1 to 4- defendant Nos.1 to 4 preferred this revision contending that the lower court failed to see that the petitioners filed the petition showing the schedule property with false boundaries. The court below failed to understand the laws in Scheduled Areas of Telangana. Purchase of property by the petitioner's grandfather through sada sale deed was void under Scheduled Area Land Transfer Regulation. The purported sada sale deed was inadmissible under Indian Evidence Act, Transfer of Property Act and Indian Registration Act, 1908. The trial court failed to consider that the land to an extent of Ac.4-16gts. in Survey No.535/4 was allotted to the grandfather of the revision petitioners namely Maruthi Sarabaiah vide Dr.GRR,J 6 CRP No.1777 of 2022 proceedings B/102/92 dated 25.04.1995. Once, the land was allotted to tribal under assignment proceedings in Scheduled area, it was a bar to purchase the land by non-tribals. The entire revenue records in favour of the respondents were not valid in the eye of law and would not stand to judicial scrutiny. The land in Survey No.532 to an extent of Ac.2-35gts. and in Survey No.535 to an extent of Ac.334-16gts was government land situated at Malkaram Revenue Village, Dammapet Mandal, Bhadradri- Kothagudem District. Without looking into the revenue records, the impugned order was passed by the court below. The orders passed in LTR case Nos. 1320/74 and 763/200/DPT dismissing the cases filed by the revision petitioners were not received by the revision petitioners from the authorities. The court below without considering the procedure in Telangana Agency Rules, 1924, granted injunction order. In view of the impugned orders, the petitioners-plaintiffs were trying to interfere with their possession. The lower court considering the Tahsildar's report dated 13.04.2022 was erroneous. The lower court committed a fundamental error in calling for the report from the Tahsildar and placing reliance on the same. The lower court felt the necessity of eliciting the opinion of the Tahsildar regarding physical possession of the said property. The appropriate course for it would have been to summon the Tahsildar and Dr.GRR,J 7 CRP No.1777 of 2022 examine him as a court witness. By calling for a report from the Tahsildar and placing reliance thereon, without giving an opportunity to the revision petitioner to cross-examine the Tahsildar, the lower court committed a serious jurisdictional error. The lower court granted the impugned order basing on the Advocate Commissioner's report dated 05.07.2022. The same was also erroneous. The Advocate Commissioner, without taking the assistance of the Mandal Surveyor and revenue staff and without recording the statements of the neighbouring farmers of the subject land, issued the report. The same was not valid. It was unsustainable, erroneous and violative of principles of natural justice. The Advocate Commissioner could not be appointed for making an enquiry about the factum of possession. The Advocate Commissioner could not be appointed to find out the factum as to who was in possession of the property. When there was a dispute with regard to possession of the suit property, the same should be resolved on the basis of oral and documentary evidence. Material issue of determining the possession could not be left to an Advocate Commissioner and prayed to set aside the order passed in I.A.No.44 of 2022 in O.S.No.51 of 2022 dated 28.07.2022 on the file of the court of Sub-Divisional Magistrate and Special Assistant Agent to Government (Mobile Court), Bhadrachalam.
Dr.GRR,J 8 CRP No.1777 of 2022
10. Heard the learned counsel for the revision petitioners and the learned counsel for the respondents.
11. The contention of the learned counsel for the revision petitioners was three-fold. First, he contended that, the impugned order was passed in favour of the plaintiffs without considering Regulation 3 of the AP Scheduled Areas Land Transfer Regulation, 1959, which would prohibit transfer of immovable property by a member of Schedule Tribe to the persons outside the agency area. The contention of the revision petitioners was that their grandfather was allotted the schedule land vide proceedings No.B/102/92, dated 25.04.1995. As per Regulation 3 of the AP Schedule Areas Land Transfer Regulation, 1959, any transfer of immovable property situated in the agency tracts by any person shall be absolutely null and void, unless such transfer is made in favour of a person who is a member of Schedule Tribe or a society registered or deemed to be registered under the AP Co-operative Societies Act, 1964, which was composed solely of members of the Schedule Tribes. The contention of the learned counsel for the plantiffs, on the other hand was that the schedule property was purchased by the grandfather of the plantiffs on 20.06.1960 and the father of the revision petitioners challenged the sale deed executed by the grandfather of the revision petitioners in favour of the grandfather of the Dr.GRR,J 9 CRP No.1777 of 2022 plaintiffs vide Land Transfer Regulation Order in case No.1320/74 and the Special Deputy Collector (Tribal Welfare), Palvancha vide order dated 29.08.1975, dismissed the petition holding that there was no contravention of the provisions of the Regulations. No appeal was preferred against the said order within sixty (60) days, though an appeal would lie to the Agent to the Government and Collector, Khammam from the date of the order. But, the father of the revision petitioners, again filed another application before the Special Deputy Collector vide LTR Case No.763/2000/DPT. The same was also dismissed on the ground of res judicata. Once, the authorities closed the issue stating that, the transaction took place prior to 01.12.1969, the petitioners agitating the same before this Court was not proper.
12. The learned counsel for the respondents-plaintiffs filed the orders of the Special Deputy Collector (Tribal Welfare), Palvancha in LTR Case Nos.1320/74 and 763/2000/DPT, dated 14.03.2001 in support of his contention. He also further contended that no such argument was taken by the revision petitioners in their counter or in their written arguments filed before the trial court, so as to countenance the same effectively in I.A.No.44 of 2022 in O.S.No.51 of 2022.
Dr.GRR,J 10 CRP No.1777 of 2022
13. It is to be remembered that in a suit for permanent injunction and an interlocutory application for temporary injunction what is prima facie material is to see as to who is in possession of the property by the date of filing the suit and the application.
14. The second objection taken by the learned counsel for the revision petitioners was that the trial court relied upon the report of the Tahsildar and the same was not in accordance with law. The learned counsel for the revision petitioners relied upon the judgment of this Court in Maloth Veeru @ Heerala and others v. Guguloth Mangi1, wherein it was held that:
"The lower court committed a fundamental error in calling for the report from the Tahsildar and placing reliance on the same without summoning its author and examining him, which was alien to the procedure before the civil court".
15. The third objection taken by the learned counsel for the revision petitioners was that the trial court placed reliance upon the Advocate Commissioner's report and that the Advocate Commissioner could not be appointed to find out the fact as to who was in possession of the property. When there was a dispute with regard to the possession, the same should be resolved on the basis of oral and documentary evidence adduced by the parties, but the said duty could not be left to the Advocate Commissioner. 1 2012 (2) ALD 455 Dr.GRR,J 11 CRP No.1777 of 2022
16. The learned counsel for the respondents-plaintiffs, on these aspects, accepted the contention of the revision petitioners, that placing reliance upon the report of the Tahsildar and Advocate Commissioner by the trial court was an irregularity and prayed to remand the matter to the trial court to consider the issue basing on the documents filed by both the parties without placing reliance upon the reports of the Tahsildar and the Advocate Commissioner.
17. On a perusal of the order of the trial court, it would also disclose that, though the trial court referred to the various documents filed by both the parties, had not marked the same as exhibits. The same was also not proper. This Court in Civil Revision Petition No.155 of 2016, dated 22.04.2016, while referring to the earlier judgments of this Court in AP Minerals Development Corporation Limited, Hyderabad v. M/s. Trimex Minerals Private Limited2, and another decision in T.Bhopal Reddy and another v. K.R.Lakshmi Bai and another3, held that:
"No just decision as regards the property in dispute can be made without looking into the documentary evidence that may be relied upon by both the parties. In the light of the contentions urged by both the parties, it is always necessary to refer to and carefully examine the recitals in the documents before coming to a just decision in the matter. Unless, the documents filed by both the parties are exhibited, the documents will not be sent to this Court from the trial court along with the lower court records. Unless, the documents are before this Court and are duly exhibited, it is neither possible nor is just and 2 1998 (1) ALD 533 3 1998 (1) ALD 770 Dr.GRR,J 12 CRP No.1777 of 2022 proper to appreciate the rival contentions. The trial court ought to have allowed the parties to have their documents exhibited before disposing of the Interlocutory Application on merits. Even in a case where the parties failed to make a request to exhibit their documents for consideration in the Interlocutory Application, it is the duty of the court to see that the necessary documents are exhibited. It is not a case where the parties specifically opted not to exhibit for one reason or the other. Rule 60 of Civil Rules of Practice says that the enquiry into the Interlocutory Application shall be conducted by receiving affidavits but if the judge directs that the evidence be given orally, then it shall be recorded and the exhibits be marked in the same manner as in the case of suits. Even going by the principles of natural justice and equity and fair practices applicable to the judicial proceedings and in order to maintain transparency, it is necessary to allow the parties to exhibit the documents on which they rely upon to prove a prima facie case and the material propositions which they urged in their pleadings that call for consideration in an interlocutory enquiry."
18. Hence, it is considered fit to allow the Civil Revision Petition by setting aside the impugned order in I.A.No.44 of 2022 in O.S.No.51 of 2022 and remand the matter to the trial court to consider the issue basing on the documents filed by both the parties by marking them and dispose of the said application afresh on merits in strict accord with the procedure established by law without considering the Advocate Commissioner's report and the Tahsildar's report. This Court in Maloth Veeru @ Heerala and others v. Guguloth Mangi (1 supra) also held that:
"The lower court committed a fundamental error in calling for the report from the Tahsildar and placing reliance on the same. The lower court is discharging the functions of a civil court in the agency areas. Placing reliance on a report without summoning its author and examining him is something alien to the procedure before a civil court. If the lower court felt that the necessity of eliciting the opinion of the Tahsildar regarding the physical possession of the suit property, an appropriate course for it would have been to summon the Tahsildar and examine him as a court witness. Such a procedure Dr.GRR,J 13 CRP No.1777 of 2022 would have ensured that an opportunity is given to both the parties to cross-examine such witness. By calling for a report from the Tahsildar and placing reliance thereon, without giving an opportunity to the petitioner to cross-examine the Tahsildar, the lower court has committed a serious jurisdictional error"
19. Hence, in view of the judgments of this Court as extracted above, the matter is remanded to the trial court to dispose of the application afresh on merits in strict accord with the procedure established by law within a period of thirty (30) days from the date of receipt of copy of this order.
20. In the result, the Civil Revision Petition is disposed of with the above directions. No order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J December 05, 2022 nsk