HON'BLE Smt. JUSTICE P.SREE SUDHA
CIVIL REVISION PETITION No.825 of 2019
ORDER
1. This revision is directed against the order dated 14.02.2019 passed in file No.F1/IA-06/2004 on the file of the Joint Collector, Mahabubnagar.
2. Syed Zainulabuddin filed this revision during the pendency of the proceedings. He died on 26.04.2021 and his legal representatives were brought on record as per the order dated 13.08.2021 passed in I.A.No.1 of 2021 as Petitioner Nos.2 to 8. They submitted that in CRP No.14607 of 2017 this Court directed the authorities to deal with the issue of delay while deciding the main appeal but not permitted the first respondent to file a petition after a lapse of more than 25 years for condoning the delay. The first respondent failed to file the condone delay petition at the initial stage and as such it cannot be entertained at the belated stage and the delay of 27 years 8 months and 21 days cannot be condoned without valid reasons. The petitioners would further assert that his father-first petitioner was in continuous possession of land 2 from 1960 till date. The first respondent was never in possession and he has no right in the land and thus requested the Court to set aside the order of the Joint Collector.
3. Late Srinivasa Chary was the head of Brahmans in the Samasthan of Raja Balachander of Balanagar Samasthan. The lands of village Agraharam Potlapalli were service inams by the Raja of erstwhile Samasthan to Brahman Community. The total extent in Sy.No.79 was Ac.43.00 guntas. After the demise of Srinivasa Chary, his son Krishnama Chary inherited the property prior to 1953-54 and became owner, pattadar and possessor of the land along with other lands and that his name was also mutated in revenue records and also in Khasra Pahani for 1954-55. After Jamabandhi in 1975-76 the survey number was divided into three numbers viz., Sy.No.44 to the extent of Ac.19.27 guntas and the remaining extent in Sy.Nos.39 and 40. The said properties were partitioned between Krishnama Chary and his brother K.Narasimha Chary on 27.04.1980 under a partition deed and after partition their names were mutated in the revenue records. Sy.No.44 fell to the share of Krishnama Chary and 3 whereas Sy.Nos.39 and 40 fell to the share of his brother and that from the date of partition Krishnama Chary was in possession of the said land. The first respondent herein had worked in Electricity Department and his brother worked as Employment Officer and retired from service and due to their employment they are not living in the village. The first respondent cultivated the lands by giving them on lease till 1995 and thereafter, he left the lands without cultivation for some period. In the meanwhile, the petitioner herein managed the revenue officials and got entered his name as possessor of the land in Sy.No.44 and also filed an application for grant of Occupancy Rights Certificate (ORC) without making the first respondent as party to the proceedings and without any notice to them and obtained ORC vide proceedings D.Dis.No.K/3474/1989 dated 02.09.1989.
4. Perusal of the proceedings dated 02.09.1980 shows that Syed Zainulabuddin filed a declaration under A.P. (TA) Inam Abolition Act, 1955 (for brevity, 'the Act of 1955') for grant of ORC in respect of the lands in Sy.No.44 along with other survey numbers by stating that he purchased the same 4 by a private sale deed from Venkatacharyulu and Thirumalacharyulu who are inamdars. Notices were issued to all the interested persons and as there is no objection from any one, ORC was issued in his favour. Aggrieved by the said order Vijaya Mohan Sharma, son of Krishnama Chary, first respondent herein, filed Case No.F2/IA-6/2004 before the Joint Collector, Mahabubnagar, and his case is only restricted to Sy.No.44 to an extent of 19.27 guntas. He also enclosed copy of the judgment dated 14.07.2009 passed in O.S.No.7 of 2005 on the file of the learned Senior Civil Judge, Mahabubnagar, which was decreed in their favour. In the appeal, the appellant therein contended that ORC for Sy.No.44 was issued in favour of the respondent therein without their knowledge and notice. He also asserted that in O.S.No.7 of 2005 he was declared as owner and the respondent therein did not file counter. In the said judgment it was observed that in a written statement filed by the defendant before the Civil Court he stated that he purchased the land in Sy.No.44 from the father of the first respondent herein in the year 1974 through private sale deed. The Joint Collector observed that this admission clearly shows that 5 defendant was not in possession during 1973-74 as on the date of vesting i.e. 01.11.1973. As per the pahani of the year 1973-74 the father of the first respondent was in possession of Sy.No.44 and as per Section 8(1) of the Act of 1955 only the person who immediately before the date of vesting i.e. 01.11.1973 has an inam land under his personal cultivation, entitled to be registered as occupant of such inam land. In the case on hand, the petitioner herein purchased in the year 1974 and was not in possession as on 01.11.1973 and thus he is disentitled for ORC and accordingly the order dated 02.09.1989 passed in ORC No.K/3474/89 by the Revenue Divisional Officer, Mahabubnagar, was set aside and the appeal was allowed and the Revenue Divisional Officer was directed to issue ORC as per the provisions of the Act of 1955.
5. Aggrieved by the order dated 19.02.2011 the petitioner therein approached this Court by way of filing CRP No.1460 of 2017 by contending that the application is filed with the delay of twenty days. In fact, ORC was granted in the year 1989 and the appeal was filed in the year 2004 and the number of days delay was not properly calculated and not 6 explained properly and that there was no order regarding condonation of the delay and as such the order of the Joint Collector is to be set aside. The first respondent in the revision petition stated that fraud was played upon him by the revision petitioner and thus fraud vitiates all the proceedings and therefore the question of delay and condonation of delay does not arise. This Court after hearing both sides observed that the issue of fraud is a mixed question of law and fact and it must be pleaded in detail and establish by cogent evidence. As the Joint Collector did not deal with the delay and there is no separate order condoning the delay to set aside the order of the Joint Collector, remitted the matter to the Joint Collector for disposal afresh and directed him to deal and decide with regard to delay in presenting the appeal after taking into consideration the explanation offered by the first respondent herein for delay and objections raised by the petitioner herein.
6. In the light of the above observations passed by this Court, an application viz., I.A.No.6 of 2004 is filed by Vijay Mohan Sharma-first respondent herein on 28.11.2017 and submitted that Venkatacharyulu and Thirumalacharyulu are 7 not concerned with the subject land and they are pattadars of other lands. He also submitted that though the petitioner herein stated that he purchased the land through private sale deed, he did not file the same. His grandfather, father or himself never executed any sale deed in favour of the petitioner herein. It is also his contention that when the petitioner herein purchased the land on 12.07.1974 why he kept quiet for 15 years to get the ORC is not explained anywhere. He would also assert that the petitioner herein also preferred A.S.No.17 of 2011 against the judgment and decree in O.S.No.7 of 2005 and the said appeal was dismissed on 10.03.2017 and a copy of the judgment was also filed. He would also submit that no notice was served upon him and only when he came to know about the ORC order through his elder brother in the year 2004, he obtained certified copy of the same and filed appeal within thirty days from the date of knowledge and there is no negligence on his part in filing the appeal. The Joint Collector after considering the said application and the reasons explained by the first respondent herein, condoned the delay of 27 years 8 months 8 and 21 days in filing the appeal. Aggrieved by the said order, the petitioner herein filed this revision.
7. Heard the learned counsel appearing for the revision petitioners and the learned counsel appearing for the first respondent. Perused the record.
8. In CRP No.1460 of 2017 (old W.P.No.10629 of 2014) this Court observed that O.S.No.7 of 2005 was filed by the fourth respondent against the revision petitioner seeking for declaration of title, recovery of possession and mesne profits, which was decreed after elaborate trial and after dismissal of the first and second appeals the decree and judgment passed in the suit between the parties became final and binding on the parties. The first respondent in this revision would submit that against the judgment in O.S.No.7 of 2005, an appeal viz., A.S.No.17 of 2011 was preferred, which was dismissed on 10.03.2017. Aggrieved by the same S.A.No.407 of 2017 was preferred and stay was granted in it on 14.07.2017 and the main second appeal is still pending on the file of this Court. Vijay Mohan Sharma stated that in view of the orders of the Joint Collector dated 19.02.2011, ORC 9 was granted to Syed Zainulabuddin as per the provisions of the Act of 1955 by the Revenue Divisional Officer vide proceedings in Case No.K/9552/2013 dated 17.12.2016. The respondent would further state that while granting ORC in the year 1989 no notice was issued to him and the revision petitioner herein created false documents and misled the Court. He would also submit that the revision petitioner on the one hand says that he purchased the property from his father through private sale deed in the year 1974 and on the other hand he says that he purchased the property from Venkatacharyulu and Thirumalacharyulu for which he has not filed any sale deed in support of his contention and there is no basis for both the averments. Even as per the perusal of the proceedings of the ORC dated 02.09.1989 though the revision petitioner stated that notices were issued to all the interested parties, he has not issued notice to Krishnama Chary who was shown in the possession of the land in Sy.No.44 during 1973-74 as on the date of vesting i.e. 01.11.1973 inam land was under his personal cultivation and he was entitled to be registered as occupant of such inam land.
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9. Further, the revision petitioner herein stated that he purchased the property in the year 1974 and that the delay petition is filed after 27 years. In fact, the first respondent herein is pursuing the litigation from 2004 onwards. Initially he filed an application to set aside the ORC order before the Joint Collector in the year 2004, which was disposed of in his favour in the year 2011. Thereafter, the revision petitioner preferred revision before this Court and this Court after hearing both parties remitted the matter back. Again, the Joint Collector in an order dated 14.02.2019 condoned the delay and he clearly observed that Krishnama Chary has no knowledge of granting of ORC in favour of the revision petitioner herein.
10. The revision petitioner mainly argued that as per the directions of this Court in the Revision Petition, fresh application cannot be received and only considering the reasons explained in the previous application, the Appeal before the Joint Collector is to be disposed of. The respondent herein from the beginning stated that as he was working in Electricity Department and his brother was an Employment Officer and both of them were working at different places and 11 not living in the village. Though they cultivated the lands till 1995, they could not cultivate the lands for certain period and during that period the revision petitioner herein managed the revenue records and entered his name as possessor of the land in Sy.No.44. In fact, the revision petitioner herein obtained ORC for several survey numbers including Sy.No.44. But the respondent herein raised an objection only in respect of Sy.No.44 as it was issued in favour of grandfather of Vijay Mohan Sharma i.e. Srinivasa Chary by Raja Balachander of Balanagar Samasthan. Later his name was mutated in the revenue records and also in Khasra pahani for 1954-55. In view of Jamabandhi in the year 1975-76, Sy.No.79 was divided into three survey numbers i.e. Sy.No.44 to an extent of Ac.19.27 guntas and Sy.Nos.39 and 40 with remaining land and the said extent was divided between Srinivasa Chary and his brother Krishnama Chary on 27.04.1980 under a partition deed and Sy.No.44 fell to the share of his brother Narasimha Chary. From then onwards, he is in possession and enjoyment of the land and later his son Krishnama Chary was in possession and his name was reflected in the said pahanies.
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11. It is needless to state that the appeal filed before the Joint Collector is pending since 2004 onwards and in view of remand by this Court in the revision, the authority is directed to dispose of the appeal as expeditiously as possible, preferably within a period of three months from the date of receipt of the order in the revision.
12. Considering the above facts, this Court finds that there is no infirmity in the order dated 14.02.2019 passed by the Joint Collector, Mahabubnagar, in condoning the delay as the revision petitioner herein played fraud upon the Court and obtained ORC behind the back of the respondent herein, though the first respondent herein is having valid title and possession over the suit schedule property only to deprive his rights.
13. In the result the civil revision petition is devoid of merit and is accordingly dismissed confirming the order under challenge. In consequence, the interim orders granted on 26.08.2019 in I.A.No.1 of 2019 in CRP No.825 of 2019 shall stand cancelled.
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14. Miscellaneous Petitions, if any, pending in this revision shall also stand dismissed in the light of this final order.
____________________ P.SREE SUDHA, J.
12th OCTOBER, 2022.
PGS