Telangana High Court
Smt. Pulyala Vasantha, vs The Agent To The Government And Project ... on 18 June, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
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THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No.16807 of 2023
ORDER:
This writ petition is filed seeking a Writ of Mandamus, declaring the judgment of the 1st respondent passed in the Court of Additional Agent to the Government and Project Director, ITDA, Eturunagaram in Rc.No.1.TR/G-Pet/420/2012-15 dated 29.04.2023 as illegal, arbitrary, opposed to law, and contrary to the procedure contemplated under CPC.
2. Heard Sri M. Vidyasagar, learned counsel for the petitioner; and the learned Government Pleader for Social Welfare for the respondents.
3. The case of the petitioner as per the averments in the writ affidavit is that the petitioner is the absolute owner of the land admeasuring an extent of Ac.30-00 in Survey No.109/A at Pasranagaram Village, Govindraopetmandal, Mulug District (earlier Warangal District) having acquired the said right through Sri S.K. Raghavachary who executed a Will on 29.04.2007 in favour of the petitioner herein and got it registered as Document No.57 of 2007. Thus, by virtue of the same the petitioner herein substantiated her right on the suit schedule property with absolute right and she is enjoying the property right since the said execution of the Will Deed. Sri S.K. Raghavachary passed away on 13.01.2011. The facts about the petitioner being the absolute owner of the suit schedule property has been substantiated by the order of the 2 Joint Collector, Warangal vide Rc.No.E5/4080/2006 dated 05.05.2007. wherein in a revision filed by Sri S.K. Raghavachary who executed the rights in favour of the petitioner herein and the Joint Collector while allowing the revision directed that the Tahsildar, Govindaraopet to delete the names of non-tribals in the revenue records in Sy.No.109/A situated at Pasranagaram village, Govindaraopetmandal, Mulug district, in contravention of the provisions of LTR, 1959 and thus consequently directed issuance of pattadar passbooks in favour of the petitioner in respect of the suit land and as per the demarcation of the Assistant Director, Survey and Land Records, Warangal, and in accordance with the Record of Rights Rules. The order impugned before the Joint Collector i.e., dated 09.05.2000 by the Mandal Revenue Officer and the consequent order of the Revenue Divisional Officer, Mulug incorporating the names of respondents 4 to 29 made several attempts to disturb the order by filing false and frivolous petitions were unsuccessful. Thus, it has got to be presumed that the petitioner, plaintiff in the suit is the absolute owner of the suit schedule property. The petitioner's possession on the suit schedule property was being disturbed by respondents 4 to 29 every now and then and thus to prevent them from interfering with the suit schedule property the petitioner herein filed O.S., before the Court of the Agent (District Collector), Warangal, Schedule Tribe area, wherein the petitioner herein sought an injunction restraining the 3 defendants i.e., respondents 4 to 29 from interfering on the suit schedule property. The Collector in conformity with the agency lands transferred the case to the Project Officer, ITDA, Eturinagaram, and the same was numbered as 420 of 2015. Along with the original petition filed before the Collector, the petitioner herein also filed an I.A seeking adinterim injunction against the defendants i.e., i.e., respondents 4 to 29 herein from interfering with the suit schedule property. The defendants did not file written statement but filed a Memo dated 04.12.2005 contending that the suit was not maintainable and the same has to be filed before proper Court. On the memo filed by respondents 4 to 29, the 1st respondent transferred the suit to the Original Agency Court ITDA i.e, Special Deputy Collector, TW ITDA., Eturinagaram on the point of original jurisdiction. The said order passed in the IA was assailed before this Court in W.P.No.26591 of 2017 and this Court by order dated 19.09.2017 allowed the same directing the 1st respondent to dispose of the suit in accordance with law. In pursuance of the same, an order was passed and the same was assailed in WP No.34955 of 2022. Once again an order was passed vide Rc.No.LTR/G-Pet-420/2012-2015 dated 08.06.2022 which was assailed in WP No.34955 of 2022 before this Court. The complaint in the writ petition was the judgment passed by the 1st respondent without perusing the contents of the plaint and not even taking into consideration the documents filed by the petitioner which substantiated her right on 4 the property and by not conducting a trial in conformity with procedure contemplated in the CPC. The Hon'ble Court in WP No.34955 of 2022 dated 20.10.2022 set aside the order and remanded the matter once again to the 1st respondent directing him to pass orders on the suit filed by petitioner for injunction within a period of 3 months. Once again the 1st respondent committed same error in passing a judgment in suit filed by petitioner dated 29.04.2023 totally dispensing with the procedure contemplated under CPC wherein it is mandatory that the 1st respondent who is given powers to adjudicate a suit in agency area must invariably follow the procedure contemplated under law. The adjudication has to be done by 1st respondent in conformity with the procedure followed by Civil Court. The 1st respondent neither framed an issue on the basis of the pleadings nor the petitioner as well as the respondents to adduce evidence on the strength of necessary documents marked as evidence. Thus, a perusal of the order passed by 1st respondent in the suit by the impugned judgment disclose that the Court below has passed the judgment in total ignorance of law and the impugned judgment does not contain a decree to be adjudicated in an appeal suit as per law.
4. Learned counsel for the petitioner contends while reiterating the factual aspects as contained in the writ affidavit would primarily contend that the impugned judgment is illegal as the 1st respondent has not followed the procedure contemplated under law and as an Agent to the 5 Government the 1st respondent is adjudicating the suit in an agency area and therefore the 1st respondent ought to have followed the procedure of the Civil Court and the documents filed by the petitioner were not taken into consideration which substantiated the right of the petitioner and by not conducting the trial in accordance with the procedure under CPC, the impugned judgment passed by the 1st respondent is bad in law.
5. Learned Government Pleader appearing for respondents would submits that the impugned judgment does not suffer from any illegality or infirmity as the same was passed after considering the documents filed by the parties and after framing the issues and by following the procedure contemplated under law, and therefore there is no merit in the writ petition.
6. On a perusal of the impugned judgment of the 1st respondent, it may be noted that in the plaint filed in Rc.No.LTR/G-Pet/420/2012- 2015, the plaintiff claimed that she is the absolute owner and possessor of suit land and that she was given Patta No.174 and Pass Book No.096505 by the Tahsildar, Govindaraopet in recognition of her title and possession and that she has been in continues to be in actual physical possession of the suit land; and that one S.K.Narsimha Chary (late) was the protected tenant of TVK Shastry (late) and a certificate was issued to S.K. Narasimha Chary under Tenancy and Agricultural Act, 1950. By 6 virtue of said certificate, he was treated as pattadar of the suit land and in addition to that he was also in possession of Ac.10-00 guntas of land as tenant and that land is adjacent and towards East of the suit land and the whole area of Ac.40-00 guntasia compact block; that one E. VenkatramNarsaiah began to trespass in the suit land, and S.K. Narasimha Chary filed a suit O.S.No.20 of 1966 on the file of I Additional DistritMunsiff, Warangal, against E. VenkatramNarsaiah including TVK Shastry, pattadar, and during pendency of suit S.K.Narasimha Chary passed away in the year 1968 and his son S.K. Raghava Chary came on record as L.R in the suit, and he also passed away on 13.11.2011 and he executed a Will Deed dated 24.09.2007 in favour of plaintiff and got it registered as Document No.57 of 2007. It was stated that the suit was contested and perpetual injunction was granted against defendants but E. VenkatramNarasaiah filed a petition filed seeking setting aside an ex- parte decree to be passed but it was dismissed and another petition was also dismissed and he filed a third petition which was allowed on payment of costs; and thereafter S.K. Raghva Chary challenged the said order in the Hon'ble High Court which was decided in favour of Raghava Chary and thereafter Raghava Chary filed an execution petition E.P.No.1 of 1984 before the District Munsiff, Mulugu for implementation of injunction decree. It was again contested by E. VenkatramNarsaiah in the said E.P., the Court got surveyed and identified the land in E.A.No.8 7 of 1987, Police Aid was also granted which was challenged in High Court by VenkatramNarsaiah but the High Court confirmed the orders passed by Munsif Magistrate Court in Cr.P.Nos.1552, 1553 and 1614 of 1988. Disclosing above facts, a petition was filed by late S.K.Raghava Chary, before the MRO Govindraopet, but he refused to issue a pass book, S.K. Narasimha Chary challenged the said Memo of refusal by an appeal before R.D.O. Mulugu, which resulted in filing a revision before the Collector, Warangal, who made over the appeal to the Joint Collector, and the Joint Collector examined the records thoroughly and came to the conclusion that the view taken by MRO is incorrect, and consequently the revision No.E5/4060/2006 dated 05.05.2007 was allowed. The Joint Collector directed the Tahsildar, Govindaraopet to delete the names of all non-tribals recorded in the pahanies in respect of Survey No.109 measuring about Ac.160-28 guntas. He has also directed to issue pass book in respect of suit land to late S.K. Raghava Chary, and the petitioner in pursuance of Will Deed vide Document No.57 of 2007 became the owner of the suit property and sought for impleading as L.R to the estate of the deceased Raghavachary to an extent of Ac.30-00 guntas of land. Hence, the petitioner prayed for an injunction restraining the defendants (respondents herein) from interfering with her possession of the suit land.
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7. The Court below has recorded that the petitioner filed the following documents in support of her plaint.
01. Will Deed registered vide Document No.57 of 2007 dt. Ac.30-00 gts of agricultural land situated in PasraNagaram village of GovindaraopetMandal, then Warangal District bequeathed by S.K. Raghavachary, S/o late S.K. Narasimha Chary.
02. Pattadar passbooks
03. Title deeds issued by Tahsildar, Govindaraopetmandal.
04. AdangalPahani for the year 2014-15 (meeseva) dated 10.07.2015.
05. Form Namuna - I 1973 A.P. Land Records (Agriculture Ceilings Act) U/S 18 dt.11.02.1975
8. The defendants (respondents herein) filed a written statement inter-aia contending that defendants 1 to 26 and 23 others have filed suit for permanent injunction vide O.S.No.54 of 2007 against the State of A.P. represented through District Cllector, Warangal, the Tahilsar, Govindaraopet and S.K. Raghava Chary contending that the plaintiff No.1 is the absolute owner and possessor and enjoyment of lands in Sy.No.109 of Pasra village, Govindaraopetmandal and statedthat land comprised of Sy.No.109 and other lands originally belonged to one TVK Shastry, r/o Nakkalagutta, Hanamkonda, and in or about the year 1954, (1) Smt. GundavarapuKanthamma, w/o late VeeraRaghavaRao, r/o Hanamkonda, entered into an agreement with TVK Shastry, the pattdar, owner of lands in Sy.No.85 (old) situated at Pasra to an extent of Ac.50-00 gts etc., for 9 sale consideration of Rs.5,000/- on 20.12.1954 in pursuance of which she was put in possession of the aboe land. Further stated that GundavarapuJanamma, w/o BheemRao, r/o Nayeem Nagar, Hanamkonda, entered into an agreement of sale dated 20.12.1954 with late TVK Shastry agreeing to purchase lands comprised in Sy.No.85 (old) measuring Ac.75-00 gts etc., totaling to Ac.125-00 gts for sale consideration of Rs.5,000/- and that she was put in possession. Thus both of them are in possession and enjoyment of the aforesaid land, and both the ladies have paid Rs.2,000/- each to TVK Shastry towards part of sale consideration. However, due to subsequent disputes O.S.No.31/1/1956 and 29/1/1956 for specific performance came to be filed, and the suits were transferred by the High Court to I Additional City Civil Court, Hyderabad and they were renumbered as O.S.Nos.20 and 21 of 1963 respectively and they ended in compromise. Thereafter the said Janamma/plaintiff in O.S.No.20 of 1963 executed an assignment deed in favour of her brother VenkatramNarsaiah in respect of land covered by the above said decree thereby VenkatramNarsaiah became the decree holder of the lands covered by the decrees. Likewise the plaintiff in O.S.No.21 of 1963 executed a Will Deed dated 18.04.1971 in favour of VenkatramNarsaiah bequeathing all her rights and interest in the decree in O.S.No.21 of 1963 after his death to his wife E. Susheela Devi (plaintiff No.1's mother) and after her death, to the children of VenkatramNarsaiah 10 including the plaintiff No.2. And that E. VenkatramNarsaiah died on 17.01.1998 intestate leaving behind his wife and plaintiff No.1 in the suit and five sons including plaintiff No.2 as his heirs and legal representatives to all the properties including the suit provperties covered by decrees in O.S.No.20 of 1963 and O.S.No.21 of 1963 properties by virtue. Thus, the plaintiff No.1 has succeeded to the suit lands after the death of the late E. VenkatramNarsaiah and also by virtue of Will Deed dated 18.04.1971 executed by Gundavarapujanamma in favour of E. VenkatramNarsaiah and also by virtue of she being the wife and legal representative of E. VenkatramNarsaiah in respect of the suit properties covered by the compromise decree in OS No.20/1963; and that the late E. VenkatramNarsaiah has entrusted the management of the said land during the lifetime situated in Pasra village to plaintiff No.2 and thus plaintiff No.2 managed the suit land by clearing the land and leveling and brought about Ac.70 guntas under cultivation; that after death of VenkatramNarsaiah, plaintiff No.1 also allowed plaintiff No.2 to continue to manage suit properties covered by two compromise decrees by virtue of oral partition affected by VenkatramNarsaiah in or about the year 1976. Further, the plaintiff submitted that in the year 1989, the plaintiff No.2 has filed O.S.No.68 of 1989 on the file of I Additional Senior Civil Judge, Warangal for permanent injunction against defendants therein when they tried to interfere with his possession and enjoyment over the suit lands. 11 The said Court also granted temporary injunction and on the strength of interim order, the defendants stopped their interference, thereafter the persons by name S.K. Raghava Chary and MittapallyVenkateshwaru filed impleading petitions in the said suit as defendant Nos.26 and 27 respectively and they were added a such; that later the lower Court after hearing the parties vacated the interim injunction thus resulting in CMA No.75 of 1989 before I Additional District Judge Warangal, and later defendant No.26 also filed CMA No.83 of 1989; that they resulted in filing of CRP No.894 of 1990 and CRP No.484 of 1991 and the High Court after hearing both sides remanded the matter back to lower Court; that finally plaintiff No.2 came to know that the said suit was closed on no instructions being supportd by his counsel T. VenkateshwaraRao, and further stated that S.K. Raghavachary did not turn up at any time subsequently to Pasra during all these years. Plaintiff No.2 entered into this agreement to plaintiff Nos.3 to 41 to cultivate the suit land on crop share basis and pay him half share after deducing fertilisers etc. accordingly plaintiff No.3 to 41 cultivating the suit land on ehalf of plaintiffs; as such the plaintiff Nos.1 and 2 sought for perpetual injunction from the IV additional District Judge, Warangal, where they obtained interim injunction; that they have also sought for declaration of pattadar pass book and title deed obtained vide Rc.No.E5/4060/2006 dated 05.05.2007 by the Joint Collector, Warangal in Sy.No.109 granted 12 in favour of defendant No.3 to cancel and grant perpetual injunction restraining the defendant Nos.1 to 3. When the suit came up for hearing and ended in dismissal by judgment dated 06.06.2022 invoking provisions of Regulation, 1959, and directed the Tahsildar to take possession of the suit land.
9. It may be noted that the plaintiff filed WP No.34955 of 2022 before this court assailing the dismissal order dated 06.06.2022 and this Court set aside the same and directed the Court below to pass orders in the suit filed by the plantiff for injunction within a period of three months. In compliance thereof, the case was reopened for fresh enquiry and notices dated 04.01.2023 were issued to the parties fixing the date of hearing as 18.01.2023 at the Office of P.O., ITDA, Eturunagaram, and in response to the said notice the parties appeared through their counsel and the plaintiff insisted for interim orders in the petition filed under Order 39 Rule 1 CPC to restrain the respondents from interfering in her physical possession over the suit land, and the Court below passed status quo order on 08.02.2023 in IA No.1 of 2023 in respect of the suit schedule property until further orders; and that defendant Nos.2 to 5, 7, 10, 13 to 17, 20 to 22, and 24 to 26 filed counter dated 18.03.2023; and the plaintiff and defendants submitted their contentions; the TahsildarGovindaraopet directed to submit the factual report in respect of suit land; and accordingly a report dated 10.03.2023 was submitted; 13 and no fresh documents were filed by the parties; and that some people of Pasranagaram village have submitted a representation on or about 25.01.2023 to the effect tht they have erected some temporary thatched sheds in Sy.No.109 and that the said land is in their possession; and in support of the same, news items published in daily newspapers are made available at subsequent at subsequent dates.
10. Upon considering the pleadings and the documents and the arguments advanced in support thereof, the Court below has recorded a finding as under:
"From thepleadings and the documents referred to above by both the parties and also the report of the Tahsildar, Govindaraopet, dt.10.03.2023, it is clear that there is a dispute between the parties and their predecessors in title since decades together. It is further observed from the records more particularly from the field enquiry report dt.10.3.2023 that there is dispute about the possession over the suit schedule properties and the plaintiff Smt. P. Vasantha is not in physical possession and cultivation of the suit land. Attested copies of pahani for the year 2009-2010 submitted by the Tahsildar, Govindaraopet further shows that the name of S.K.Narsimha Chary is recorded as pattadar to an extent Ac.25.30 guntas in Sy.No.109/A/aa (Telugu) of Pasranagaram (V) and the names of PagillaIndir, ShayamalaSammi Reddy, YanalaChiranjeevi, E. RaghunmohanRao, Vasampeli Indira, AaramVenkatesh, PattapuVenkatamma, Md. YazdaniSappidiVenkat Reddy, YanalaDhanalaxmi, Pannala Krishna Reddy, Vempalli Ram Reddy, SappidiSathemma, KolluBixam Reddy, KollluVenkat Reddy, BaddamPdma, Enugu Veeraswamy, SamanthapuBalaraju and SangaNarahari are recorded in cultivators column. Though the latest pahanies are not submitted 14 by anyp arties to the suit, the report of the Tahsildar, Govindaraopet, dt.10.03.2023 clearly shows that the plaintiff is notinossession of the suit schedule property and that some non- tribals belonging to Pasra (V) are cultivating the lands to an extent of Ac.30.00 guntas illegally. It is further reported that an extent of Ac.10.00 guntas of land in the said survey number is encroached by 200 and above persons belonging to Pasra (V) illegally.
From the above facts, circumstances, record and pleadings it is clear tht though the suit land is not in physical possession of the plaintiff as on the date of filing of the suit, she has filed the suit for the relief of permanent injunction restraining the defendants from interfering in her possession. As such, the plaintiff appears to have approached this court with unclean hands and suppressing the real facts. It is well settled in law that a person can be non-suited if he/she suppresses the facts and approach the court with unclean hands is not entitled to the relief before the court. Thus plaintiff has failed to prove her physical possession over the suit land as on the date of filing of the suit hence she is not entitle for the relief of permanent injunction. Therefore the suit of the plaintiff is liable to be dismissed accordingly dismissed without costs.
11. In the writ petition WP No.26591 of 2017, the issue raised by the learned counsel for respondents 4 to 29 is only with regard to jurisdiction, stating that the transfer of the suit by 1st respondent to the 2nd respondent is bad in law in view of Rule 7 of the Agency Rules, 1924, and therefore the suit filed by the petitioner in OS No.420 of 2015 has to be heard by the 1st respondent only; and after hearing both sides, this 15 Court by order dated 19.09.2018 allowed the writ petition directing the 1st respondent to dispose of the suit in accordance with law.
12. Having considered the rival submissions, the material on record, more particularly the impugned judgment, it may be noted that the Court below has considered the documents filed by the parties, and also afforded opportunity of hearing after issuing notices to the parties and it is only after considering the pleadings and the oral submissions made by the respective counsel for both the parties, the suit was dismissed. Further, it may be noted that in the plaint presented under Section 26 read with Order IV Rule 1 of CPC and Section 38 of the Specific Relief Act, before the Additional Agent to the Government and Project Officer, ITDA, Eturunagaram, it is the specific prayer of the petitioner to grant permanent injunction and restore physical possession in her favour. Further, the Court below observed as under:
"Though the defendant No.1 filed his written statement, not pressed for the issue for long. But, as per the pleadings made by him it is observed that, the original pattadar of the lands TVK Shastri, alienated the suit lands in favour of Gundavarapu Kantamma and Janamma, who are the ancestors of the defendant 1, on which his ownership was exhausted by then in the form of certificate issued under section 38E of Tenancy Act of 1950 in favor of S.K.Narsimha Chary, who was recognized as Protected Tenant by then. According to a Latin maxim, Nemo dotquod non- habet which means that no one can transfer a better title than he himself has, only the owner of the goods can pass the lawful ownership or title of goods to the buyer. In the instance case, also 16 TVK Shastri transferred a right already got exhausted in him. Hence, the transfer made by TVK Shastri and the resulting claims out of it are null and void."
13. Again the petitioner filed a suit before the Court of Additional Agent to the Government and Project Officer, ITDA, Eturunagaram, in Rc.No.LTR/G-Pet/420/2012-2018, seeking the relief of permanent injunction in respect of agricultural land admeasuring Ac.30-00 guntas in Sy.No.109/A situated in Pasaranagaram village of Govindaraopet mandal, and the Court observed as under:
"It is further observed from the records more particularly from the field enquiry report dt.10-3-2023 that there is dispute about the possession over the suit schedule properties and the plaintiff Smt. P. Vasantha is not in physical possession and cultivation of the suit land."
14. In that view of the matter, the Court below after due enquiry has categorically observed that the petitioner is not in physical possession of the land and therefore cannot seek relief of permanent injunction. In that view of the matter, there is no illegality in the impugned judgment and the writ petition is liable to be dismissed at the admission stage.
15. Accordingly, the writ petition is dismissed at the admission stage. No costs. Miscellaneous petitions, if any pending, shall stand closed.
_____________________________ Justice Nagesh Bheemapaka 18th June, 2024 ksm