Appinedi Pothuraju vs The Tahsildar
2022 Latest Caselaw 96 AP

   THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

           WRIT PETITION Nos.803 and 10612 of 2021


COMMON ORDER:

      These two writ petitions are filed by one Appinedi Pothuraju

and Sayyed Jany under Article 226 of the Constitution of India for

issue of Writ of Mandamus declaring the action of the respondent

No.1 in interfering with possession and enjoyment of the petitioners

over the land admeasuring 310.25 Sq.Yds and 351 Sq.Yds

respectively situated in R.S.R.No.671/1A of Pedana village and

mandal, Krishna District without following due process of law as

arbitrary, illegal and consequently direct respondent No.1 not to

interfere with the civil dispute pending between the petitioners and

respondent No.3 over the land referred above.

Both these petitions are filed claiming identical relief by

different petitioners having different extents of land in the same

survey number in Pedana Village and Mandal, Krishna District, and

the issue involved in these two petitions is one and the same.

Therefore, I am of the view that it is expedient to decide both these

petitions by common order.

The factual matrix in W.P.No.803 of 2021 is as follows:

Petitioner is claiming that he is the absolute owner of the land

310.25 Sq.Yds situated in R.S.R.No.671/1A of Pedana village and

mandal, Krishna District with exclusive possession and enjoyment

by virtue of Registered Gift Deed bearing Doc.No.865/2011 dated

16.05.2011 executed by his father. Petitioner's father purchased the

said land under Registered Sale Deed bearing Doc.No.1905/2009,

from Chennakcsavula Rambabu and Thota Paideshwar Rao. They

have also purchased the said land under Registered Sale Deed from MSM,J wps_803 and 10612_2021

Sala Sreenu. Respondent No.3 herein filed O.S.No.16 of 2011 against

her family members and others for partition of the land. The

petitioner's land is also part of the item No.2 of the schedule property

in the Partition Suit and he was added as defendant No. 14. On

contest the said suit was dismissed.

Aggrieved by the same, the respondent No.3 filed A.S.No.178 of

2019 and the same is pending before this court. Since there is a

threat of encroachment by the neighbours, petitioner intended to

clean the bushes in the land and construct the compound wall and

house after obtaining the permission from the Municipality. After

dismissal of the suit, the petitioner informed the said fact to

respondent No.1 and once again started clearance of bushes in his

land, but the staff of respondent No.1 office came and directed the

petitioner not to do any activity in the land on the ground that

A.S.No.178 of 2019 filed by respondent No.3, which is pending before

this Court. Respondent No.1 is no way concerned with the dispute

pending between the petitioner and respondent No.3 in A.S.No.178 of

2019 on the file of this Court. Without following due process of law,

respondent No.1 is interfering with petitioner's possession and

enjoyment at the instance of the respondent No.3, requested to grant

relief as claimed in the writ petition.

The factual matrix in W.P.No.10612 of 2021 is as follows:

The Petitioner is claiming that he is the absolute owner of the

land 351 Sq.Yds situated in R.S.R.No.671/1A of Pedana village and

mandal, Krishna District with exclusive possession and enjoyment

having purchased the same under Registered Sale Deed bearing

Doc.No.2167/2014 dated 25.08.2014 executed by his vendor -

Mohammed Athavulla. The Andhra Pradesh Housing Corporation

issued orders dated 28.01.2018 granted housing loan of MSM,J wps_803 and 10612_2021

Rs.3,50,000/- with subsidy benefit of Rs.2,50,000/- sponsored by

the Central and State Government. When the petitioner intended to

construct house, respondent No.1 without following due process of

law is interfering with his possession and enjoyment. When the

petitioner raised the tin roof shed in the land, the staff from the office

of respondent No.1 without issuing any notice, straightaway

demolished the shed. The petitioner erected thatched shed and

carrying on mutton business in the said premises. No dispute was

raised by any person including the respondent Nos.3 and 4 against

possession and enjoyment of the land. Respondent No.3 filed

O.S.No.16 of 2011 against his vendor and others for partition and

the said suit was dismissed. Thereafter, respondent No.3 filed

A.S.No.178 of 2019 and the same is pending before this Court.

Respondent No.4 is also not disputing the possession and enjoyment

of the petitioner over the land. Respondent No.4 is claiming the land

admeasuring Ac.1.00 cents as per the gift deed alleged to have

executed by the vendor out of the total extent of Ac.2.50 cents and

filed O.S.No.174 of 2014 against one Mohammed Ibrahim and

obtained exparte decree dated 26.10.2018. While things stood thus,

respondent No.1 without following due process of law is trying to

interfere with his possession and preventing him to raise

construction of the building in the said land on the ground that in

the year 2014 the respondent passed an order under section 146 (1)

of the Code of Criminal Procedure (for short "Cr.P.C.") in M.C.No.37

of 2014 dated 22.12.2014 in respect of the land extent Ac.2.50 cents

in R.S.No.671/1A and his extent is also located in the said land.

Once the rights and title of his vendor has been adjudicated by the

competent civil court and absolutely there is no dispute was raised

by any person over the subject land, respondent No.1 without MSM,J wps_803 and 10612_2021

following due process of law should not interfere with his possession

and respondent No.1 is not entitled to prevent him from making

construction of the building. The persons who have got legitimate

rights have agitated their rights through court of law and the

competent civil court adjudicated the dispute, passed the final

judgment. At this stage, the action of respondent No.1 in trying to

interfere with his peaceful possession and enjoyment and preventing

him to raise construction of the building is illegal and arbitrary,

requested to grant relief as claimed in the writ petition.

As this Court granted interim order, respondent No.3 filed

vacate stay petition along with counter denying all the material

allegations inter alia contending that the petitioner in W.P.No.803 of

2021 has no locus standi to file the present petition. One Hayath

Bee, who was the sister of late Hasan Ali, father of respondent No.3,

was the original owner of the land admeasuring Ac.4.00 in

Sy.No.671/1, Pedana village and mandal, Krishna District. Out of

the said Ac.4.00 cents, she gifted Ac.1-00 cents to Ajmathunnisa,

who is the sister of respondent No.3, out of love and affection and for

her bright future by virtue of registered document No.1269/1963

who is the daughter of Hasan Ali. Father of respondent No.3

succeeded the land admeasuring Ac.3.00 cents from Smt. Hayath

Bee and out of the said land of Ac.3.00, his father sold Ac.1.76 cents

to subsequent purchasers. Father of the respondent No.3 possessed

Ac.1.24 cents of land in Sy.No.671/1. As such, out of remaining

Ac.3.00 of land, only Ac.1.24 cents is left after alienation by the

father of respondent No.3.

It is further contended that the brother of respondent No.3 by

name Athaullah Mohammad got managed the revenue authorities

and obtained patta for Ac.2.50 cents of land instead of Ac.1.24 cents MSM,J wps_803 and 10612_2021

of land. After obtaining patta, his brother started executing various

sale deeds in favour of third parties. As the brother of respondent

No.3 did not come forward for partition of the property left behind by

his father who died intestate, he filed O.S.No.16 of 2011 on the file of

X Additional District and Special Sessions Judge, Krishna for

partition. The said suit was dismissed on 31.12.2018. Aggrieved by

the decree and judgment, he filed A.S.No.178 of 2019 which is

pending for adjudication. The land claimed by the present writ

petitioner is part and parcel of the schedule land mentioned in the

suit. When his brother's title and possession over the subject land is

disputed, the writ petitioner cannot claim possession over the said

land. The writ petitioner suppressing all these facts filed the present

writ petition and obtained interim direction in I.A. No.1 of 2021

directing the Tahsildar not to interfere with the possession of the writ

petitioner without following due process of law if he is in possession.

It is further contended that due to the execution of multiple

sale deeds by the brother of respondent No.3 without being in

possession of the land several disputes and law and order problem

arose. On the requisition of police, the Tahsildar issued 145 Cr.P.C.

proceedings and appointed Revenue Inspector as Receiver to the said

land and now the Tahsildar is the custodian of the subject land. As

such it is crystal clear that the writ petitioner is not in possession

over the subject land. More over when a comprehensive appeal is

pending before this Court with regard to the subject land the writ

petitioner cannot claim to be in possession, requested to dismiss the

writ petition.

Respondent No.1 filed counter in W.P.No.10612 of 2021

denying the material allegations narrating the history of the case.

MSM,J wps_803 and 10612_2021

The specific contention of respondent No.1 is that there is a civil

dispute between the petitioner in W.P.No.10612 of 2021 and

respondent Nos.3 and 4 regarding land admeasuring 351 Sq.Yds

situated in Rs.671/1A of Pedana Village of Krishna District, which

led to initiation of proceedings under Section 146 (1) in M.C.No.37 of

2014 dated 22.12.2014. Since civil suit is pending, the Tahsildar,

Pedana being the Executive Magistrate has promulgated orders

under Section 146 (1) of Cr.P.C. to maintain law and order and also

to maintain peace and tranquillity and the same is in force. Thus,

the subject land is in the custody of Revenue Inspector and the

petitioner has nothing to do with the possession of the land,

requested to dismiss the writ petition.

During hearing, Mrs.P.Srilatha Reddy, learned counsel for the

petitioners in both the petitions, would contend that when the

petitioners are in possession and enjoyment of the property, either of

the respondents cannot dispossess them without following due

process of law. There is absolutely no order of prohibition against the

enjoyment of the property by the petitioners having acquired title

either under the Gift deed or sale deed by both the petitioners and

the proceedings initiated under Section 146 (1) and 145 of Cr.P.C.

will not come in the way of the petitioners to enjoy the property, and

on the pretext of initiation of proceedings under Section 146 (1) and

145 of Cr.P.C., the respondents cannot interfere with the possession

and enjoyment of the property. Unless undue interference of

respondent No.1 is prevented, it is difficult for the petitioners to

protect their possession, requested to issue a direction as sought for

in the petition.

MSM,J wps_803 and 10612_2021

Sri B.Mayur Reddy, learned counsel for respondent No.3 would

submit that when the appeal is pending before this Court regarding

partition of the property, more particularly when the disputed

property is part and parcel of schedule land mentioned in the suit,

no order be issued restraining respondent No.1 from interfering with

the enjoyment of the property allegedly by the petitioners, but the

petitioners obtained interim direction suppressing real facts,

requested to dismiss the writ petition.

It is an undisputed fact that the land admeasuring Ac.4.00

cents in Sy.No.671/1, Pedana Village and Mandal, Krishna District

originally belongs to one Hayath Bee, sister of father of respondent

No.3. As she died issue less, father of respondent No.3 succeeded

Ac.3.00 cents from Hayath Bee. Out of Ac.3.00 cents, father of

respondent No.3, late Hasan Ali, sold Ac.1.76 cents while retaining

Ac.1.24 cents. Later, brother of respondent No.3 Athaullah

Mohammad got managed the revenue authorities, obtained pattadar

passbooks and title deeds in his favour for an extent of Ac.2.50 cents

instead of Ac.1.24 cents, executed sale deeds in favour of third

parties. Later, there were transactions among third parties. The

petitioners are claiming title from Athaullah Mohammad and the

property was transferred to different persons after obtaining sale

deed from the brother of respondent No.3. Thus, the execution of

sale deed by Athaullah Mohammad conveying the disputed property,

which is the subject matter of suit O.S.No.16 of 2011 on the file of

the X Additional District and Sessions Judge, Machilipatnam for

partition, which was dismissed on 31.12.2018, and the appeal is

pending in A.S.No.178 of 2019 before this Court are not in dispute.

No interim order was granted during pendency of suit or in the MSM,J wps_803 and 10612_2021

appeal. Therefore, the sale of property in favour of third parties is

valid till the suit is decreed. However, at this stage, it is difficult to

conclude that the possession of the petitioner is unauthorised or

illegal or without any title.

Learned counsel for respondent No.3 in the vacate stay

petition pleaded additional facts regarding filing of suit O.S.No.174 of

2014 on the file of the Principal Junior Civil Judge, Machilipatnam

by Mohammed Khizre Alam for permanent injunction to restrain

Mohammed Ibrahim, his men and supporters from interfering with

his peaceful possession and enjoyment of the land in an extent of

Ac.1.00 cents in Sy.No.671/1 (old), 671/1A (New) situated in Pedana

Village and Mandal, Krishna District based on the gift deed bearing

No.1174 of 2014 dated 04.07.2014 obtained from his junior maternal

aunt Ajmathunnissa @ Ajmathunnissa Begum and the said suit was

decreed on 26.10.2018 in favour of Mr. Mohamammed Khizre Alam

restraining the Mohamammed Ibrahim, his followers and supporters

from interfering with the possession and enjoyment of the said

property in Sy.No.671/1 (Old), 671/1A (New) situated in Pedana

Village and Mandal, Krishna District. The petitioner's vendor's

vendor Mr.Sala Srinu filed implead petition vide I.A.No.296 of 20214

in O.S.No.174 of 2014 which was dismissed on 28.08.2015 on

specific ground. In the said suit in O.S.No.174 of 2014 certain other

parties by name Mr. Mohd. Habibul Rehman, Mr. Mohd. Vasivul

Reham, Mr. Abdul Waheed and Habeebunissa filed implead petition

vide I.A. No.318 of 2014 and the same was dismissed on the ground

that they had no right or interest in the Plaint schedule property and

the C.R.P.No.50/2016 filed against the order was also ended in

dismissal on 08.07.2016.

MSM,J wps_803 and 10612_2021

It is also stated in the vacate stay petition that one Mr. Mohd.

Khizre Alam filed W.P.No.28589 of 2014 praying to direct

Commissioner, Pedana Municipality to take immediate action on the

representation of the petitioner dated 20.08.2014 which led to

initiation of proceedings under Section 146 (1) of Cr.P.C. and also

explained pendency of litigation in different Courts.

Thus, as seen from the material on record, A.S.No.178 of 2019

is pending before this Court for adjudication, but the suit

O.S.No.174 of 2014 filed by Mohammed Khizre Alam was decreed

restraining Mohammed Ibrahim, his men and followers by decree

dated 26.10.2018. The decree in O.S.No.174 of 2014 is binding on

Mohammed Ibrahim, his men and followers, but not binding on any

of the petitioners. If any of the petitioners are claiming title to the

property through him, it is binding on them. However, the petitioners

claiming title to the property based on registered gift deed bearing

No.865 of 2011 dated 16.05.2011 and sale deed document No.2167

of 2014 dated 25.08.2014 respectively, which are still valid as on

date. Therefore, the petitioners are deemed to be in possession and

enjoyment of the property in their own right by virtue of gift deed and

sale deed respectively.

In any view of the matter, when respondent No.1 in

W.P.No.10612 of 2021 admitted about the pendency of civil disputes,

the possession and enjoyment of either of the petitioners and

respondents cannot be decided by this Court while exercising power

under Article 226 of the Constitution of India and in view of the

judgment passed in O.S.No.174 of 2014 by the Principal Junior Civil

Judge, Machilipatnam the possession of the petitioner in MSM,J wps_803 and 10612_2021

W.P.No.10612 of 2021 is doubtful since he is claiming right through

Mohammed Ibrahim. Therefore, the title is in dispute.

The petitioner in W.P.No.803 of 2021 to substantiate his

contention that he is in possession of the property placed on record

gift deed dated 16.05.2011 executed in his favour by his father

gifting 310.25 Sq.Yds. So also sale deed obtained by his father from

Chennakesavula Rambabu. He also produced tax receipts evidencing

payment of tax for the house constructed in NTR Colony, Ward No.8,

Pedana, with assessment No.1072008778. These documents

cumulatively establish that the petitioner in W.P.No.803 of 2021 is

residing in the house and paying property tax to the Municipality,

but the house is in existence in the disputed land. Therefore, the

petitioner is able to establish his possession and enjoyment over the

property irrespective of the title to the property, which is the subject

matter of A.S.No.178 of 2019. Thus, the petitioner cannot be

dispossessed except by due process of law notwithstanding the

nature of the possession. Hence, any amount of interference with the

possession and enjoyment of the property by respondent No.1

without following due process of law is illegal and arbitrary as

respondent No.1 has no right to interfere with such possession

irrespective of its nature. Hence, the alleged attempt of respondent

No.1 to interfere with the possession and enjoyment of the petitioner

over the subject property is without any right and the same is

declared as illegal, arbitrary and violative of Article 14 and 300-A of

the Constitution of India.

When the petitioner in W.P.No.10612 of 2021 is claiming to be

in possession, it is for him to produce material to substantiate his

contention. To substantiate the contention of the petitioner, the MSM,J wps_803 and 10612_2021

petitioner in W.P.No.10612 of 2021 produced copy of sale deed, trade

license issued by Pedana Municipality, orders issued by the A.P.State

Housing Corporation to establish that he is in possession of the

property carrying on mutton business. The documentary evidence

produced by the petitioner in W.P.No.10612 of 2021 would establish

that the petitioner is in possession and enjoyment of the property as

on date, irrespective of title based on sale deed bearing document

No.2167 of 2014. Hence, any amount of interference with the

possession and enjoyment of the petitioner by respondent No.1 is

illegal and arbitrary.

Section 146 (1) of Cr.P.C. says that if the Magistrate at any

time after making the order under sub-section (1) of section 145

considers the case to be one of emergency, or if he decides that none

of the parties was then in such possession as is referred to in section

145, or if he is unable to satisfy himself as to which of them was

then in such possession of the subject of dispute, he may attach the

subject of dispute until a competent Court has determined the rights

of the parties thereto with regard to the person entitled to the

possession thereof. Such Magistrate may withdraw the attachment

at any time if he is satisfied that there is no longer any likelihood of

breach of the peace with regard to the subject of dispute. Sub-

section (1) of Section 146 of Cr.P.C. has no application as respondent

No.1 is contending that revenue inspector was appointed as receiver.

In the facts and circumstances of the case, the trial Court

already determined the rights of the parties in O.S.No.16 of 2011,

however A.S.No.178 of 2019 is pending before this Court. In such

case, a person in possession cannot be dispossessed by appointing a

receiver since the said person established his prima facie possession.

MSM,J wps_803 and 10612_2021

Apart from that the dispute is purely between two private

individuals, but taking advantage of the situation, respondent No.1

is trying to interfere with the possession and enjoyment of the

property, which is impermissible under law.

Further, when the petitioners are in settled possession and

enjoyment of the property, they cannot be dispossessed, without

following due process of law in view of the law declared by the Apex

Court in "Rame Gowda (dead) by L.Rs. v. M.Varadappa Naidu

(Dead) by L.Rs.1". Applying the said principle to the facts of the

present case, I find that the action of respondent No.1 in interfering

with the possession and enjoyment of the petitioners over the subject

property is illegal and arbitrary.

In the result, the writ petitions are allowed declaring the action

of the respondent No.1 in interfering with possession and enjoyment

of the petitioners over the land admeasuring 310.25 Sq.Yds and 351

Sq.Yds respectively situated in R.S.R.No.671/1A of Pedana village

and mandal, Krishna District without following due process of law as

arbitrary and illegal. No costs.

The miscellaneous petitions pending, if any, shall also stand

closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 07.01.2022 Ksp

2004 (1) SCC 769