Tupili Nageswara Rao, vs The Joint Collector,
2023 Latest Caselaw 822 AP

       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                       W.P.No.7508 of 2012
O R D E R:

This writ petition is filed for the following relief:

'..to issue a writ in the nature of writ of Certiorari or any other appropriate writ direction, order or orders calling for the records relating to the order dated 05.11.2011 passed by the 1st respondent in Case No.Dis (E-10) 4106/2011 and quash the same as arbitrary, illegal without jurisdiction and void...'

2. This Court has heard Sri V.Eswaraiah Choudary,

learned counsel for the petitioner, Government Pleader for

Revenue and Sri P.Gangirami Reddy, learned counsel for the

unofficial respondents.

3. The writ petition was initially filed by one T.Nageswara

Rao and after his death; his brother is continuing the writ

petition.

4. Learned counsel for the petitioner argued the matter at

length and extensively. According to him, the impugned order

dated 05.11.2011, passed by the Joint Collector-respondent

No.1, is totally contrary to law. The petitioner claims title to

the property involved in this dispute through his brother

T.Nageswara Rao, who executed a Will in his favour

bequeathing the property to him. He therefore claims

absolute right to the property. According to the writ

petitioner, it was realized that respondent Nos.4 and 5 have

manipulated the records, created documents and secured

Pattadar Pass Books etc., for the very same land. The original

petitioners commenced legal action. Learned counsel for the

petitioner argues that the petitioner's brother has not

executed a valid sale deed in favour of the respondents, in

that respondent Nos.4 and 5 are claiming title through an

alleged agreement of sale which is also not on record.

According to him, the agreement of sale does not confer any

title and that the respondents did not even get the same

adjudicated under law. He also submits that in the absence

of validation, the respondents do not have any right over the

property and that the revenue authorities overlooked the

same. It is also submitted that on the basis of an

unregistered Will also, the respondent Nos.4 and 5 are

claiming rights. Learned counsel also relies upon the

judgment of the Telangana high Court reported in

D.Sudhakar Reddy v. Joint Collector, (Telangana)1 and

Nadiminti Varalakshmi and another v. The State of

Andhra Pradesh, rep., by its District Collector, East

Godavari at Kakinada and others2 in support of his

submissions. Therefore, he prays for a writ of certiorari to set

aside the order dated 05.11.2011.

5. In reply to this, learned Government Pleader for

Revenue argues the matter on behalf of the State. He points

out that after following the due process, the rights of

respondent Nos.4 and 5 were recognized. He also points out

that the revision was filed by the petitioner's brother in 2007,

whereas he had executed an agreement in favour of

respondent Nos.4 and 5 on 15.04.1983. He also did not

exercise the statutory right and file an appeal within the

stipulated period as the Pattadar Pass Books were also issued

to C.Venkata Ramanamma in December, 1989. She in turn

bequeathed the property to respondent No.4. Thereafter, by

following the procedure, the Pattadar Pass Books were also

issued to respondent Nos.3 and 4.

2020 (5) ALT 270

2014 (1) ALD 677

6. For respondent Nos.4 and 5, Sri P.Gangirami Reddy

argued the matter. It is his contention that the petitioner's

brother T.Nageswara Rao sold the property to C.Venkata

Ramanamma through an agreement of sale dated 15.04.1983

and delivered possession of the land. She paid taxes and

obtained the Pattadar Pass Book in January, 1989.

Thereafter, the said Venkata Ramanamma executed a Will in

favour of the 4th respondent who became the absolute owner

of the property. It is also argued that under the Andhra

Pradesh Rights in Land and Pattadar Pass Books Act, 1971

(for short 'the Act'), a period of 30 days is provided to the

party to make an appeal under section 5-A of the Act. In this

case, the order under section 5-A was passed on 14.12.1997,

but the appeal was filed on 21.08.2010. Yet the 2nd

respondent entertained the appeal and passed an order. This

was rightly challenged and the impugned order dated

05.11.2011 was passed clearly holding that the order dated

04.07.2011 passed by the respondent No.2 is not correct and

the Pattadar Pass Books etc., granted on 14.12.1997 should

be restored. Learned counsel also points out that respondent

No.1 in the said order i.e. the petitioner herein was advised to

file a civil suit under section 8(2) of the Act for establishment

of his rights. Learned counsel also relies upon the following

case law in support of his contentions (1) Smt. P.Ghousia

Begum and others v. Basireddy Rukminamma and

others3, (2) Ratnamma v. Revenue Divisional Officer,

Ananthapur District and others4 and the order of the

Division Bench in W.A.No.666 of 2022. It is his contention

that the writ petitioner who has a purported claim over the

property can only file a civil suit for a declaration when a

dispute is raised and that the writ Court is not a proper

forum. He also points out that the issues raised by the

petitioner, even if they are correct, are disputed questions of

fact which cannot be decided in a writ petition.

7. COURT: This Court after examining the issue at

length, considering the submissions notices that there are

serious issues of fact regarding title which are involved in this

matter. T.Nageswara Rao, who initially filed the writ petition

has supposedly alienated the property by executing an

agreement of sale dated 15.04.1983. In the impugned order

2018 (5) ALT 148

2015 (5) ALT 228

there is a reference to the agreement of sale and also the

application made for regularization of the claim in terms of

section 5-A of the Act. This section 5-A of the Act, which

starts with a non-obstante clause, states that when a person

claims title through a transfer otherwise than by a registered

document, may apply to the Mandal Revenue Officer for a

certificate declaring that such transfer is valid. The order also

refers to the said procedure being followed.

8. Apart from that, it is also visible that the Pattadar Pass

Books were granted in 1989 to the respondent Nos.4 and 5.

Similarly, against an order passed under section 5 of the Act,

an appeal shall lie to the Revenue Divisional Officer within 30

days. This procedure was not followed. The Pattadar Pass

Books Act is a self-contained code and this Court has held

that the hierarchy of challenge must be strictly followed. The

inordinate delay by the writ petitioner in questioning the

Pattadar Pass Book also defeats his rights. Admittedly, as per

the record, Pattadar Pass Books were issued to unofficial

respondents in 1989, but challenge to the same was mutated

long thereafter in 2008. On this ground and the delay in

failure to follow the procedure also, the petitioner's case has

to fail.

9. The case law cited by the unofficial respondents are

squarely applicable to the facts and circumstances of the

case. In this case on hand, the petitioner is stating that

under the agreement of sale, no title could have been passed

from his brother to the predecessor-in-title of the unofficial

respondents. It is also argued that the procedure was not

followed. However, the effect of section 5-A of the Act, as

mentioned earlier, which starts with a non-obstante clause is

also a matter which has to be kept in mind. Hence, this

contention is negative in this case.

10. The Division Bench of this Court in the judgment

reported in Smt. P.Ghousia Begum (3 supra) clearly held

that cancellation of a Pattadar Pass Book is not an order that

can be passed automatically and that once the Pattadar Pass

Book has been issued, it cannot be cancelled automatically

until the civil Court finds there is no justification for the

same. It was clearly held that unless a competent civil Court

decides the actual title of the property in favour of any

person, the consequential measure for cancellation of the

Pattadar Pass Book does not arise. Similarly, in the case of

Ratnamma (4 supra), the Division Bench clearly held that

the Act is a self-contained code and that the hierarchy of

revisions and appeals should be followed. However, it was

also observed in conclusion that a Pattadar Pass Book/the

Title Deed Book is a consequential act and these books are

reflection of the entries in the original 1-B Register.

Therefore, the Division Bench held that it is the entries in the

registers which should be cancelled and not the Pattadar Pass

Book and Record of Rights Books. In this case, the entries

per se are not challenged. In addition, in W.A.No.666 of

2022 also, the Division Bench held that when there are issues

of title involved, both oral and documentary evidence are

required to be taken and that the matter should be agitated

before a civil Court.

11. Even the judgment in Nadiminti Varalakshmi (2

supra) cited by the learned counsel for the petitioner refers to

section 8(2) of the Act and states that the person has to seek

a declaration before a civil Court. It points out that in that

case, since respondent No.5 has questioned the entry in the

record of rights, he has to file a civil suit till the parties

succeeds in the suit and gets a declaration of her right over

the property, the entries already made in the record cannot be

altered. In the opinion of this Court, this judgment reflects

the correct position of law. The genesis of petitioner's case is,

in the agreement of sale said to have been executed in favour

of the predecessor in title of the current unofficial

respondents. The questions that arise from this plea are:

whether valid title is conveyed or not, whether the so-called

regularization under section 5-A of the Act confers title on the

unofficial respondents or not.

12. In this Court's opinion these are all matters which

require evidence, pleading and proof and cannot be decided

upon in this writ petition. The writ petition is therefore,

dismissed. No order as to costs.

13. All the opinions expressed so far are for the purpose of

disposal of this writ petition only. If the writ petitioner still

wishes to agitate his claims/rights, all the defences in the law

are open to respondents and the order of this Court which is

not on merits will not preclude the defendants in the said suit

from raising all the available defences.

14. As a sequel, the miscellaneous petitions if any shall

stand dismissed.

________________________ D.V.S.S.SOMAYAJULU,J

Date: 13.02.2023 KLP