Kalyanapu Yasodha vs The Sttae Of Andhra Pradesh
2021 Latest Caselaw 41 AP

       HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

            WRIT PETITION No.21702 of 2020

ORDER:

The husband of the petitioner was in possession of 1111

sq.yards of land in T.Survey No.1917, 1918, 1920, 2000, 2002

and 1922, Ward No.5, Block No.25 situated in

Annapurnammapeta, Rajahmundry, East Godavari Districrt.

He claimed ownership over the property on the ground that he

had entered into an agreement of sale for purchase of the

property and had paid some amount of money. 3rd respondent

had filed O.A.No.224 of 2017 before the Endowment Tribunal

claiming that the husband of the petitioner was an encroacher

and has to be evicted. An exparte decree came to be passed

against the husband of the petitioner on 31.07.2019 and he was

evicted from the land. Aggrieved by the said exparte order, the

husband of the petitioner had approached the Tribunal by way

of an application to set aside the order along with an application

to condone the delay. While the applications were pending, the

respondents started fencing the land due to which, the husband

of the petitioner approached this Court by way of W.P.No.16916

of 2019 which was disposed of by an order dated 06.12.2019

directing the 2nd respondent to dispose of the application to

condone the delay and for setting aside the decree and judgment

dated 31.07.2019 certain observations were also made by this

Court. The applications filed before the Tribunal were allowed by

the Endowment Tribunal wherein the earlier exparte decree

dated 31.07.2019 was set aside on 20.01.2020. Thereafter, the

husband of the petitioner passed away on 04.08.2020. At that

stage, respondents 3 and 4 issued open auction notice date

04.11.2020 to lease out the said property. Aggrieved by the said

issuance of the auction notice, the petitioner has now

approached this Court for a declaration that the issuance of the

notification is invalid, arbitrary, illegal and for setting aside the

same. By the time, the petitioner approached this Court the

auction had been conducted. On 24.11.2020 this Court had

granted an interim direction to maintain status-quo obtaining as

on that day and the said order has been extended from time to

time.

2. The 4th respondent has filed a counter affidavit stating

that the husband of the petitioner had been dragging on the

matter with a view to avoid eviction and the amount paid by the

husband of the petitioner under the process of sale had been

adjusted towards use and occupation of the premises. The 4th

respondent further submitted that the public auction was held

on 19.11.2020 and the highest bidder who had obtained license

holder rights for a period of 11 years was also inducted into

possession of the property in the sense possession was handed

over on 23.11.2020 under proceedings

R.C.No.L2/4038107/2020 of the Sub-Commissioner,

Endowment Department and as such, nothing remains in the

writ petition. The stand taken by the 4th respondent is that

since the husband of the petitioner was not in possession of the

property, the question of dispossessing the petitioner from the

subject land does not arise. The 3rd respondent also filed a

counter reiterating the above facts and contentions.

3. The further ground taken by the 4th respondent is that the

petitioner cannot maintain the writ petition on the ground that

she is legal heir of Sri K.Stephen David and seek a declaration

in her favour.

4. Sri K.Madhava Reddy, learned Standing Counsel for

Endowments submits that the husband of the petitioner was

already evicted from the property and has been declared as an

encroacher. He further submits that the observations of this

Court in W.P.No.16916 of 2019, dated 06.12.2019 that the

petitioner has no title to the property as no conveyance was

executed in favour of the petitioner, were sufficient to non-suit

the petitioner herein. He further submits that the petitioner has

not chosen to file any application before the Tribunal to show

that she is the legal heir of Sri K.Stephen David and as such,

she is not entitled to maintain the present writ petition.

5. The learned Assistant Government Pleader for

Endowments reiterates and supports the stand taken by Sri

K.Madhava Reddy, learned Standing Counsel for Endowments.

The learned Assistant Government Pleader also submitted that

the petitioner has no locus to file the present writ petition.

6. Sri Ghanta Rama Rao, learned Senior Counsel appearing

for Sri Ghanta Sridhar, learned counsel for the petitioner

submits that the petitioner had already filed a memo before the

Tribunal stating the fact that her husband had passed away.

Despite the filing of the memo, the respondents have not taken

any steps to implead her and as such, the O.A. would have to be

treated as abated and as such, there is no declaration by the

Tribunal that the husband of the petitioner is an encroacher.

7. The pleadings in the counter affidavit as well as

submissions made by the respondents on the locus of the

petitioner is that the petitioner is a third party to the O.A

proceedings and as such, is not entitled to maintain the present

writ petition.

8. However, a closer look at the pleadings in the affidavit

would go to show that the objection taken is a technical

objection in relation to the proceedings in the O.A and not on

the ground that the petitioner is not the wife of Sri K.Stephen

David. At this stage, the contention of Sri G.Rama Rao, learned

Senior Counsel would have to be taken into account that the

failure of the respondents to implead the legal heirs of Sri

K.Stephen David would result in the abatement of the O.A itself.

In as much as proceedings cannot be initiated or continued

against dead persons. In those circumstances, the question of

whether the petitioner herein is a party to the O.A or whether

she is the legal heir to Sri K.Stephen David in the said O.A

would not be relevant.

9. In the absence of any declaration by the Tribunal that Sri

K.Stephen David is an encroacher on the said land, the

petitioner as the wife of Sri K.Stephen David would be entitled to

maintain the present writ petition to protect her interest as the

legal heir of Sri K.Stephen David.

10. In these circumstances, the present writ petition is being

disposed of with the following directions:

1) It would be open to the respondents to either take

steps to bring the L.Rs of Sri K.Stephen David on

record and continue O.A.No.224 of 2017 after

obtaining necessary orders of setting aside the

abatement of the proceedings or to initiate fresh O.A

against the legal heirs of Sri K.Stephen David for

obtaining such declarations as the respondents may

deem fit.

2) The declaration that Sri K.Stephen David is an

encroacher of the land by the Tribunal is not in

existence in more on account of the order dated

31.07.2019 which set aside the exparte decree. In

such a situation, unless and until a declaration that

Sri K.Stephen David was an encroacher is obtained,

the eviction of Sri K.Stephen David would require to

be reversed.

3) In these circumstances, there shall be a status-quo

in relation to the land in question for a period of one

month to enable the respondents to take appropriate

action.

4) In the event the respondents choose not to take any

action within the said period, it would be open to the

petitioner to take appropriate steps to obtain

recovery of possession of the property.

11. Accordingly, the writ petition is disposed of. There shall be

no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall

stand closed.

____________________________ R. RAGHUNANDAN RAO, J.

07.01.2021 RJS

HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

WRIT PETITION No.21702 of 2020

07.01.2021

RJS