Andhra Pradesh High Court - Amravati
O R D E R vs Krishna on 24 July, 2023
1
HOB'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.No.4737 of 2009
O R D E R:
This writ petition is filed for the following relief:
„..to issue a writ order or direction more one in the nature of writ of
Mandamus declaring the action of the 1st respondent in
regularizing the plot No.261 in favour of the 5th respondent vide
G.O.Ms.No.242 dated 28.02.2007 is arbitrary, illegal and
unconstitutional and pass...‟
2. This Court has heard Sri Sriman, learned counsel for the
petitioner, learned Government Pleader for Revenue and Sri K.S.Gopal
Krishna, learned senior counsel representing Sri P.V.Raghu Ram,
learned counsel for the respondents.
3. The petitioner claims to have acquired a plot bearing No.261 in
Sy.No.13 of Kapparada Village from one Sri Ch.S.V.Ratna Kumari.
The said Ratna Kumari and the petitioner are members of the NGGO
Co-operative House Building Society-3rd respondent. Initially,
according to the writ petitioner, the plot was allotted on 13.04.1985 to
Ratna Kumari. Later, the transfer of the plot was approved and
communicated on 26.10.1993 in favour of the writ petitioner. It is
stated that the 5th respondent get a forged transfer letter dated
19.02.2021 for the allotment of the said land. Thereafter, using his
influence in the Government, he prevailed upon the Government and
secured the regularisation of the plot in his favour, which is now
questioned in the writ appeal. Learned counsel also relies upon a list
of allottees, which is filed along with a writ petition, to show that his
name is mentioned at Sl.No.284 for plot No.261. Therefore, he
questions the action of the respondents in regularising the plot and
issuing G.O.Ms.No.242 dated 28.02.2007. It is his contention that the
Government cannot "regularise" a plot through a G.O. In the writ
petition, a reference is made also to a suit for an injunction which was
filed and is pending. In addition, the writ petitioner also referred to
the orders passed in Land Grabbing Case (LGC.Sr.No..653 of 2008)
and also the order in W.P.No.14917 of 2008, wherein his attempt to
secure an order in his favour was negative.
4. In reply to this, Sri K.S.Gopala Krishna, learned senior counsel
appearing for the 5th respondent, takes the lead and argues that the
writ is totally misconceived application. He relies upon the additional
documents filed by him, which includes the decree and judgment in
O.S.No.2050 of 2007 and the further appeal filed in A.S.No.68 of 2013
which confirmed the order in O.S.No.2050 of 2007. Learned senior
counsel points out that the suit was initially filed by the writ petitioner
against respondent No.5 claiming permanent injunction. Later, in
view of the fact that respondent No.5 was in possession, he also
wanted a mandatory injunction to remove the constructions made in
plot No.261. The trial Court went into the evidence and concluded
that in para 12, when there is a serious dispute as to the plaintiffs
title, he should seek a declaration of his title over the plaint schedule
property. Even the possession of the plaintiff of plot No.261 which is
the suit schedule property, was held to be not proved. It is also held
that the petitioner is not entitled to any damages since plaintiff could
not prove his title over his suit schedule property. Learned senior
counsel also points out that some of the documents filed in this writ
petition are also marked as exhibits in the suit. He refers to Exs.A.1
and A.2 and Exs.B.2 and B.3 to show that the same issue was
agitated in an indirect form and the prayer was negatived. He also
points out that in an appeal A.S.No.68 of 2013, the findings of the trial
Court referred to earlier has been upheld. Even the appellate Court
clearly held that in para 24, the plaintiff has to seek a declaration of
his title and should not be content with filing of a suit for permanent
injunction and for other reliefs. It is important to note that both the
decisions of the trial Court in O.S.No.2050 of 2007 and the appellate
Court in A.S.No.68 of 2013 are delivered after the writ petition was
filed and while it is pending. Even before the Land Grabbing Court,
the writ petitioner made some attempt to declare that he has a right to
retain the schedule property and also to redeliver the same along with
other reliefs. This plea was also negatived by the Special Court.
5. These facts as stated above are clearly established by record.
Concurrent findings of fact in the suit and appeal are against the writ
petitioner. He did not file a proper suit to get his title/possession
recognised. In a proceeding under Article 226 of the Constitution of
India, disputed questions cannot be decided. The findings of fact are
by competent Courts whose jurisdiction was invoked by the
plaintiff/writ petitioner. Pleadings of fraud etc., are also made in the
writ. These are again disputed questions.
6. Learned Government Pleader and other counsel appearing for
the other respondents have also supported the submissions of the
learned senior counsel.
7. In the light of all of the above, this Court is of the opinion that
the writ petition is not the proper relief and the petitioner is not
entitled to a Mandamus as prayed for.
8. The writ petition is therefore dismissed. No order as to costs. As
a sequel, the miscellaneous petitions if any shall stand dismissed.
__________________________
D.V.S.S. SOMAYAJULU,J
Date: 24.07.2023
KLP
