THE HONOURABLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR
WRIT APPEAL No.1290 of 2008
JUDGMENT: (Per the Hon'ble Sri Justice N.V. Shravan Kumar)
Heard the learned counsel Mr. Haziz Hussain for
Mr. J.Prabhakar, appearing for the appellant, Mr. P.Ram Prasad,
learned Government Pleader for Social Welfare and Mr. S.Srinivasa
Sharma, appearing for the 4th respondent and perused the material
made available on record.
2. This appeal has been preferred by the appellant against the order dated 22.06.2007 passed in W.P. No.21839 of 2001 by the learned Single Judge.
3. The appellant herein is the writ petitioner in W.P. No.21839 of 2001 that was filed seeking to declare the orders passed in CMA. No.79 of 1998 dated 21.01.2001 by the respondent No.1 confirming the orders of the respondent No.2 in Case No.631-88/KMP dated 18.12.1989 including the action of the respondent No.2 in suo-motu delivering the property to respondents No.3 and 4, as illegal and arbitrary and consequently to set aside the same directing the respondents to redeliver the possession of the land admeasuring Acs.6.00 guntas in Sy.No.185/254 of Maddulapalli village, Kamepalli Mandal, Khammam district.
HC, J & NVSK, J 2 W.A. No.1290 of 2008
4. The case of the appellant/writ petitioner, in a nutshell, is that she was in possession of land to an extent of Acs.6.00 guntas in Survey No.185/254, situated at Maddulapalli village of Khammam district, having acquired the same on 01.06.1962 from Gunda Laxminarasaiah and Elka Thirupathaiah, (prior to promulgation of Regulation 1 of 1970), who purchased the same from the respondent No.3 and his three other brothers on 25.04.1960 and they were in possession of the subject property till they sold the same to the petitioner.
5. While the things stood thus, the respondent No.2 had issued a notice to the appellant/petitioner under the Regulation 3 of the A.P. Scheduled Areas Land Transfer Regulations and sought her eviction from the subject land vide notice in Case No.631/88/KMP for which, the appellant/petitioner had submitted a detailed representation and thereafter, she was informed that she will receive a fresh notice regarding the date of hearing but after a lapse of 18 months after final hearing, the respondent No.2 passed orders on 18.12.1989 without any notice to the appellant/petitioner and subsequently she came to know that the respondent No.2 had passed further orders on 06.07.1990 ordering her eviction. Against the said order, she preferred an appeal before the respondent No.1 and along with the said appeal, she filed an application seeking to condone the delay in preferring the appeal that was ended in dismissal. Thereafter, she filed W.P. No.5693 of 1991, which was allowed by this HC, J & NVSK, J 3 W.A. No.1290 of 2008 Court on 07.02.1997 directing the appellate authority to number the appeal and dispose of the same in accordance with law. However, during the pendency of that proceedings itself, she was dispossessed from the subject land. Subsequent thereto, the appeal was also disposed of in favour of the respondent No.4.
6. Aggrieved by the order dated 09.01.1977 passed in CMA. No.79 of 1998 by the respondent No.1, confirming the order dated 18.12.1989 passed by the respondent No.2 in Case No.631-88/KMP, the appellant/petitioner filed W.P. No.21839 of 2001, which was dismissed on 22.06.2007 holding that the sale deed dated 01.06.1962 being an unregistered document, cannot be admitted as evidence in proof of sale in favour of the petitioner and the same being a question of fact, cannot be re-adjudicated in the writ petition. Assailing the same, the appellant/petitioner preferred the present appeal.
7. The learned counsel appearing for the appellant/petitioner would submit that the order dated 09.01.1977 passed in LTR Case No.817 of 1975 would operate as res-judicata or even otherwise estopped fresh proceedings from being initiated and it is not a case of any new cause of action different from the one decided in LTR Case No.817 of 1975 and that the sale dated 01.06.1962 is binding upon the respondents No.3 and 4 and the same could not have been discarded as unregistered one. He would further submit that the validity or otherwise of the unregistered sale deeds could not have been decided by the regulation authorities or by the appellate HC, J & NVSK, J 4 W.A. No.1290 of 2008 authority being agent to Government and the entire procedure followed is contrary to the provisions of the A.P. Scheduled Area Land Transfer Regulations.
8. On the other hand, the learned Government Pleader Sri P.Ram Prasad appearing for the Social Welfare Department would submit that the sada sale deed is no value in the eye of law and as per the provisions of Registration Act, 1908, Section 17(1)(b) for transfer of immovable property requires registration which is mandatory to complete the sale transaction and convey the title from the Transferor to Transferee by operation of the law. It is further submitted that if a statue provides for a thing to be done in a particular manner, then it has to be done in that manner and no other manner.
9. The following are the issues that falls for consideration before this Court.
i) whether the earlier orders passed in LTR Case No.817 of 1975 on 09.01.1977 operates as res-judicata?
ii) what is the validity and effect of the unregistered sale deed?
10. In the counter affidavit filed on behalf of the respondent No.1 in W.P. No.21839 of 2001, it has been submitted that based on a representation submitted by the respondent No.3 stating that the non tribals namely Gunda Laxmi Narasaiah and another (vendors of appellant/petitioner) have illegally occupied his patta land to an extent of Acs.10.00 guntas in Sy.No.185 of Maddulapalli village and HC, J & NVSK, J 5 W.A. No.1290 of 2008 requested to restore the land to him. The case was taken on the file and after issuing notices and upon hearing and on examination of the material papers submitted by both the parties, the respondent authorities concluded that the non-tribal respondents are in possession of the land prior to enforcement of APSALTR 1/59 read with Regulation 1/70 and dropped the case vide order dated 09.01.1977 in LTR Case No.817 of 1975. Thereafter, in the year 1988, the UDRI (CAP), Palvancha has submitted a report to the 2nd respondent stating that the petitioner namely Gunda Varamma (appellant/petitioner) has illegally occupied the tribal patta land belonging to Sri Kalthi Muthaiah (ST) to an extent of Ac.6.00 guntas in Sy.No.185/254 situated at Maddulapalli village and requested to initiate a case under the provisions of APSALTR 1/59 read with Regulation 1/70. Accordingly, the respondent No.2 has taken on file for enquiry and issued notices to both the parties and upon hearing and on perusal of the material papers on record, the respondent No.2 concluded that the appellant/petitioner (non-tribal) has entered into the schedule land after commencement of APSALTR 1/59 read with Regulation 1/70 and had passed ejectment orders against the appellant/petitioner vide LTR Case No.631/88/Kmp dated 18.12.1989 and directed the Mandal Revenue Officer, Kamepalli to restore possession of the writ schedule land to the tribal pattedar or his legal heirs under cover of panchanama. Accordingly, the Mandal Revenue Officer, Kamepalli has handed over possession of the schedule land to Sri Kalthi Muthaiah (ST) under cover of panchanama on 05.07.1990.
HC, J & NVSK, J 6 W.A. No.1290 of 2008 Thereafter, assailing the order dated 18.12.1989, the appellant/petitioner filed CMA. No.79 of 1998 and the same was also ended in dismissal confirming the order dated 18.12.1989 passed in LTR Case No.631/88/Kmp.
11. It is further submitted that a sada sale deed dated 01.06.1962 was executed by Gunda Laxmi Narasaiah and Yelka Tirupathaiah (vendors of appellant/petitioner) jointly in favour of the appellant/petitioner on a stamped paper worth Rs.3/- and the same is not registered under Section 17(b) of the Registration Act, which cannot be considered as evidence of proof. The petitioner has failed to produce any corroborative evidence to substantiate her valid right and admissible possession over the writ schedule land, hence, the CMA. No.79 of 1998 under the provisions of APSALTR 1/59 read with Regulation 1/70 was dismissed. It is further submitted that Sri Gunda Malla Reddy, husband of the petitioner, attended the proceedings held on 25.06.1988 and deposed that the schedule land was purchased in the year 1962 and the land is under their possession from the date of purchase and he has filed true copy of sada sale deed dated 01.06.1962 and pahani extracts for the years 1979-80, 1980-81 and 1983-84. As seen from the deposition of the husband of the petitioner, which is available in file No.631/88/Kmp, there is no such information about previous case and its result.
12. In earlier case i.e. LTR Case No.817/75, the respondents in the said proceedings were Gunda Laxmi Narasaiah (died) represented by HC, J & NVSK, J 7 W.A. No.1290 of 2008 Gunda Malla Reddy, Yelka Thirupathaiah and Morrimekala Bazaru and that the extent involved in this case is Acs.12.00 in Sy.No.185 of Maddulapalli village of Kamepalli Mandal. In later case i.e. in case No.631/88/Kmp the respondents in the said proceedings are the appellant/petitioner and extent involved in this case is Acs.6.00 guntas in Sy.No.185/254 of Maddulapalli village of Kamepalli Mandal. Since the respondents and extent involved in the two cases are not one and the same, as such, the principle of res-judicata does not apply in this case.
13. Insofar as the second issue of validity of the unregistered sale deed is concerned, it is submitted in the counter affidavit that the appellant/petitioner has not produced original sale deed in the appellate Court at any time during the trial of the case except a copy of sada sale deed dated 01.06.1962 in the proceedings in case No.631/88Kmp. The document is executed by Gunda Laxmi Narasaiah and yelka Tirupathaiah jointly (vendors of the appellant/petitioner) in favour of the appellant/petitioner on a non-judicial stamp paper worth Rs.3/-. As the sale deed is not duly stamped and registered under Section 17(b) of the Registration Act, the same cannot be considered as evidence of proof. Section 17(b) of the Registration Act, 1908, reads as under:
"17. Documents of which registration is compulsory. - (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been examined HC, J & NVSK, J 8 W.A. No.1290 of 2008 on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force namely-
(a) ......
(b) Other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hudred rupees and upwards, to or in immovable property;
......"
14. From the above proviso, it is to be seen that for non-testamentary instruments for the value of One Hundred Rupees and upwards for immovable property, registration is compulsory. In the case on hand, the document is executed in favour of the appellant/petitioner on a non-judicial stamp paper worth Rs.3/- only, which is an unregistered document. In order to complete the sale transaction and convey the title from the transferor to transferee, it is mandatory for registration, which is not done in the present case. Hence, the learned Single Judge has rightly held that "the appellate authority also found that the sale deed, dated 01.06.1962, was executed by Laxmi Narasaiah and Thirapaiah on a stamp paper of Rs.3/- and the same being an unregistered document, it cannot be admitted as evidence in proof of sale in favour of the petitioner. In any view of the matter, the same being question of fact, it cannot be re-adjudicated in the writ petition." and in view of the same HC, J & NVSK, J 9 W.A. No.1290 of 2008 we do not find any error in the impugned order dated 22.06.2007 passed in W.P. No.21839 of 2001 by the learned Single Judge.
15. In view of the reasons assigned by the learned Single Judge in the impugned order and having regard to the findings recorded, this Court is not inclined to interfere with the impugned order dated 22.06.2007 passed in W.P. No.21839 of 2001 by the learned Single Judge.
Accordingly, this writ appeal is dismissed. There shall be no order as to costs.
As a sequel, miscellaneous applications, if any pending, shall stand closed.
___________________________ ALOK ARADHE, CJ ___________________________ N.V. SHRAVAN KUMAR, J Date: 11-09-2023 LSK