Bhathu Radha Bhai Alias Hanuma ... vs The Tahsildar
2022 Latest Caselaw 6270 AP

    HON'BLE Mr. JUSTICE G. RAMAKRISHNA PRASAD

             WRIT PETITION No. 14049 OF 2010


ORDER:

Heard Sri Vedula Venkata Ramana, learned Senior

Counsel appearing on behalf of Sri K.V. Subrahmanya Narusu,

learned counsel for the Writ Petitioners and Sri Y. Subba Rao,

learned Assistant Government Pleader for Revenue.

2. The Writ Petitioner has made the following prayer:

"to issue a writ, order or direction, particularly a writ in the nature of mandamus, declaring the action of the Respondent Nos.1 to 3 herein in interfering with the possession and enjoyment of the land admeasuring Ac.1.82 cents in Sy.No.242/6 situated in Balaga Village and Mandal, Srikakulam District belonging to the Petitioners and Respondent Nos.4 and 5 herein as high handed, illegal, unconstitutional, without any right or title, and contrary to provisions of Article 300-A of the constitution of India and consequently direct the Respondent Nos.1 to 3 herein not to interfere with possession and enjoyment of the petitioners and Respondent Nos.4 and 5 herein in respect of the said land and pass such other order....".

3. The averments made in the Writ Petition are that:

a. The three Writ Petitioners and Respondent Nos.4

& 5 are family members of one Sri Bhathula Ramesh Prasad.

It is stated in the affidavit that an extent of Ac.1-82 cents in

Sy.No.242/6 in Balaga Village and Mandal, Srikakulam

District, is an ancestral property of Sri Bhathula Ramesh

Prasad and he is in possession and enjoyment of this land

during his lifetime being an absolute owner and died intestate

leaving behind the three Writ Petitioners along with

Respondent Nos.4 & 5.

b. It is also stated in the affidavit that this land was

acquired by the ancestors of Bhathula Ramesh Prasad and

their families have been in continuous possession and

enjoyment of this land for 150 years and after the life time,

father of Petitioner Nos.2 & 3 and also Respondent Nos.4 & 5

had died intestate. The said land has come into their exclusive

possession and enjoyment. However, it is also strangely

pleaded that the son of the 1st Petitioner (1st Petitioner is the

grandmother of Petitioner Nos.2 & 3 and Respondent Nos.4 &

5) entered into Registered Agreement dated 28.07.1998 for

repairing the said well, which is situated in about 30 cents of

land, which is also reflected in the Encumbrance Certificate

(Ex.P.2), which is issued on 12.05.2010. It is also averred that

the family members of the Petitioners have converted

agricultural land and raised crops in the land for the last 30

years.

c. It is also averred in the affidavit filed in support of

Writ Petition at Para No.4 that the Petitioners had stopped the

agricultural operations in the said land since last few years

due to coming-up of residential localities very close to the said

land.

d. In Para No.6 of the affidavit, it is averred that the

said land is a private land of the Petitioners and it was entered

as "Bhathuvari Cheruvu" in the Revenue Records including

Adangals of the Village (neither the Revenue Record nor the

Adangals have been placed on record), and therefore, the said

land does not belong to the Government. It is reiterated again

and again that it is a private land. It is further averred that

the Government should follow the due process of law, if it

wants to utilise the land for any developmental purpose and

shall not deprive the Petitioners from their possession and

enjoyment.

4. The Revenue Authorities have filed the Counter

Affidavit on 21.07.2022. The Official Respondents have denied

that the land was a private tank owned by the ancestors and

that it is the absolute responsibility of the Petitioners to prove

this fact by producing the relevant documentary evidence. It is

denied that the said tank got silted and changed into

cultivable land. It is also stated in the Counter Affidavit that

the Revenue Authorities have got every right to enter into the

land vested with the Government and it is the responsibility of

the Petitioners to prove their ownership by producing the

relevant documents. It is also further stated that it is a

"Sarkar Poramboke" and it is the legitimate duty of the Official

Respondents to protect irrigation sources. With these

averments, the Official Respondents have prayed for dismissal

of the Writ Petition.

5. Learned Senior Counsel appearing for the Writ

Petitioners has submitted that he is not touching upon the

issue of title and that it is not the scope of the present Writ

Petition, as the prayer so indicates. He submits that in the

year 1999, one Sri Kalubhattu Ramesh Prasad S/o Sri

Kalubhattu Atchuta Prasad entered into an Agreement (Ex.P.1)

with one Sri Nandigam Kantha Rao S/o Sri Nandigam

Ganapathi Rao for effecting repairs to the well which is

situated in Sy.No.318 (Old)/Sy.No.242/6 (New) at Balagam. It

is also stated that the said Agreement dated 28.07.1998 is said

to have been registered under Document bearing No.1513 of

1999.

6. The learned Senior Counsel has also drawn the

attention of Ex.P.2, which is Encumbrance Certificate. On

perusal of the said Encumbrance Certificate, said to have been

generated on 12.05.2010, it indicates that the "Agreement is

regarding use of well" and the Note on the document also is

with regard to the well and the persons who have executed this

"Agreement regarding use of well" are Sri KaluBhattu Ramesh

Prasad and Nadigam Kantha Rao. In other words, the Ex.P.2

(Encumbrance Certificate) only says that there is a registered

Agreement for effecting repairs to the 'Well' between Sri

KaluBhattu Ramesh Prasad and Sri Nandigam Kantha Rao. It

does not indicate any ownership or possession in favour of the

Petitioners' ancestors.

7. Learned Senior Counsel has also drawn the

attention of this Court to Ex.P.3 namely the Adangal, wherein

in Column-12 in place of name of the owner, it is shown as

"Batti vani Cheruvu". In Column-13 in place of enjoyers

name, it is also shown as "Batti vani Cheruvu".

8. Learned Senior Counsel has cited Judgment of the

Apex Court in State of Rajasthan Vs. Padmavathi (SMT)

(Died) by LRs and Others1, wherein the Apex Court explained

import of Section 91 of the Rajasthan Land Revenue Act, 1956

and stated that the said Section 91 can be employed only to

evict the unauthorised occupants, where the occupant has

1995 Supp (2) SCC 290

raised the serious disputes as regards their right to remain in

occupation over the land. Para No.6 of the said Judgment is

extracted hereunder:

6. As noticed earlier Section 91 of the Act prescribes a summary procedure for eviction of a person who is found to be in unauthorised occupation of Government land. The said provisions cannot be invoked in a case where the person in occupation raises bona fide dispute about his right to remain in occupation over the land. Dealing with similar provisions contained in Section 6 of the Andhra Pradesh Land Encroachment Act, 1945, this Court in Govt. of A.P. v. Thummala Krishna Rao has laid down that the summary remedy for eviction provided by Section 6 of the said Act could be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government and if the person in occupation has a bona fide claim to litigate he could not be ejected save by the due process of law and that the summary remedy prescribed by Section 6 was not the kind of legal process which is suited to an adjudication of complicated questions of title. For the same reasons, it can be said that summary remedy available under Section 91 of the Act is not the legal process which is suited for adjudication of complicated questions of title where the person sought to be evicted as an unauthorised occupant makes a bona fide claim regarding his right to be in possession. In such a case the proper course is to have the matter adjudicated by the ordinary courts of law.

9. This Judgment does not help the Writ Petitioners.

10. The learned Senior Counsel has also cited the

Judgment of the Apex Court in Vidya Devi Vs. State of

Himachal Pradesh and Others2, that deals with Right to

Property as human right. In Para No.12.3 of the said

Judgment, the Apex Court had dealt with forceful

dispossession of a person of his private property, without

(2020) 2 SCC 569

following due procedure of law, and held that it would be

violative of a human right, as also the constitutional right

under Article 300-A of the Constitution. This Judgment also

will not come to the rescue of the Writ Petitioners, for the

simple reason that this ratio would apply in cases where the

person being dispossessed, would in fact be the owner of the

property. Nevertheless, it is settled law that one who is in

possession, whether under lawful entitlement or otherwise,

can only be dispossessed by following the due process of law.

However, in the instant case, the prayer of the Writ Petitioners

is only to the effect that they shall not be dispossessed. The

Writ Petitioners have not been able to establish even their

possession, leave alone the title itself.

11. Sri Y. Subba Rao, learned Assistant Government

Pleader for Revenue had submitted that the documents

(Exs.P.1 to P.3) do not indicate either ownership or possession

of the Writ Petitioners. Ex.P.1 is only a registered Agreement

between Sri KaluBhattu Ramesh Prasad and Nadigam Kantha

Rao dated 28.04.1999 for undertaking some repair works for

an amount of Rs.3,000/-. This Court fails to understand as to

why in the year 1999 the registered Agreement is said to have

been executed between two parties where the total

consideration is only a meagre amount of Rs.3,000/- for

undertaking repair work. For, even in the year 1999 for

undertaking repair works for value of Rs.3,000/- as

consideration is too meagre, and therefore, this Court is

unable to persuade itself to believe the genuineness of this

document. This apart, as regards Ex.P.2 also, this Court is

unable to understand whether the Authorities can issue

Encumbrance Certificate on property in relation to a registered

Agreement for undertaking repair works of a well. Even if this

has been obtained from the Authorities, this has no bearing

and this Court cannot accept this document. As regards,

Ex.P.3 Column No.12 deals with the name of the owner and

Column No.13 deals with the name of the enjoyer. In both

these documents, it is indicated as "Batti vani Cheruvu",

which indicates that it is only a tank in the name of Battu.

12. In view of the above discussion, this Court is

unable to persuade itself that Writ Petitioners have

successfully proved, convinced this Court that they are in

possession of the land. It is also of extreme importance to

state that in Para No.4 of the affidavit filed in support of the

Writ Petition, the Petitioners averred :

"I submit that we have to stop the agricultural operations in the said land since last few years due to coming up of residential localities very close to the said land".

13. The above averment itself indicates that the Writ

Petitioners, admittedly, have not been cultivating the land for

few years before filing of the Writ Petition. In this view of the

matter, this Court can safely conclude that the Writ Petitioners

are not in possession of this land at the present.

14. This Court, therefore, is constrained to hold that

the Writ Petitioners have failed to establish that they are in

possession and control of Ac.1-82 cents in Sy.No.242/6

situated in Balaga Village and Mandal, Srikakulam District,

and therefore, the prayer sought for by the Writ Petitioners

cannot be granted. Accordingly, the Writ Petition is dismissed.

No order as to costs.

15. Interlocutory Applications, if any pending, stand

closed.

                                   ________________________________
                                    (G. RAMAKRISHNA PRASAD, J)

Dt:   .     .2022.
JKS





      HON'BLE Mr. JUSTICE G. RAMAKRISHNA PRASAD




           WRIT PETITION No. 14049 OF 2010




                      .   .2022




JKS