Desai Amaranath Reddy, vs The State Of Andhra Pradesh
2023 Latest Caselaw 5088 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

                 WRIT PETITION No.7634 OF 2018

ORDER:

This Writ Petition is filed under Article 226 of the

Constitution of India for the following relief:

"To issue a Writ, Order or Direction more particularly one in the nature of Writ of Mandamus, declaring the action of the respondents are excavated the supply channel through the agricultural lands of the petitioner in Sy.No.139 an extent of Ac.1.24 cents and Sy.No.140 an extent of Ac.2.85 cents situated at Thummala Revenue Village, Amadaguru Mandal, Ananthapuramu District, under the guise of "NEERU-CHETTU" programme without following the due process of law as illegal, arbitrary, unconstitutional and in violation of principles of natural justice and in violation of Art.14, 19 and 300-A of the Constitution of India and consequently direct the respondents to pay the compensation of the above said lands and may pass such other order or orders."

2. The present Writ Petition is filed for issuance of mandamus

on the ground that the respondents are striving to construct

ditches that will direct water through the lands belonging to the

petitioner herein of an extent of Ac.1.24 cents in Sy.No.139 and

an extent of Acs.2.85 cents in Sy.No.140 at Thummala Revenue

Village, Amadaguru Mandal. It is asserted in the writ affidavit

that the said land was devolved upon the petitioner by way of

settlement deed executed by his father in his favour and the said

property was got to the father of the petitioner in partition. Now

the respondents are striving to construct ditches that will direct

the water to the other fields under "Neeru-Chettu" programme

and the said action of the respondents is in violation of Articles

21 and 300A of the Constitution of India and therefore, he

prayed to direct the respondents herein to follow due procedure

of law, before striving to dig ditches in the lands belong to the

petitioner herein. To establish his right, the petitioner herein

has filed revenue records, viz., pattadar pass books, Form-1B

and the settlement deed executed by his father in favour of the

petitioner.

3. Per contra, the Government has filed its counter and would

contend that the land in Sy.No.139 in an extent of Acs.1.24

cents is classified as „assessed waste government land‟ and the

land in Sy.No.140 of an extent of Acs.2.85 cents is classified as

„vanka poramboku‟ land and the petitioner is enjoying the same

without paying any lease amount and he is the encroacher of the

said land and the re-survey and re-settlement register

categorically emphasizes that the above said land is a

government land and the petitioner is not having any right or

title over the said property and therefore prays to dismiss the

Writ Petition.

4. As seen from the recitals of the document filed by the

petitioner, though the nomenclature of the document is stated as

settlement deed, it shows that a gift was made by the father in

favour of the petitioner herein and the relevant portion is hereby

extracted to substantiate the document executed is gift deed:

5. As per the law, the gift deed is a compulsorily registrable

document under Section 17 of the Registration Act, 1908, and

the gift deed filed by the petitioner herein is an unregistered gift

deed. As such, it is not admissible and it is pertinent to mention

that the recital of the gift deed does not allude that how did

father of the petitioner derived the property and on the said two

counts, the gift deed is liable to be discarded. The petitioner

cannot rely on the said gift deed, as it does not contain as to how

the father of the petitioner derived the property and how the

same can be devolved upon the petitioner herein.

6. Set apart, the above referred document, the petitioner

herein relies on pattadar passbook and Form-1B, which were

issued in favour of the petitioner herein, to claim title over the

property and contends that the respondents cannot construct or

dig any ditches in the said property in the above said survey

numbers.

7. As held by the Apex Court in Narain Prasad Aggarwal (D)

by LRs v. State of M.P.1, the record of right is not a document of

title and the entries made therein in terms of Section 35 of the

Indian Evidence Act although are admissible as a relevant piece

of evidence and although the same may also carry a presumption

of correctness, but it is beyond any doubt or dispute that such a

(2007) 11 SCC

presumption is rebuttable and the principle that any entries in

the revenue records is only for fiscal purpose and does not confer

title on the person in whose name appears in record of rights

and title to the property and it can only be decided by a

competent civil Court.

8. It was reiterated in the decision of the Apex Court in Suraj

Bhan v. Financial Commissioner2, wherein it is held that "It is

well settled that an entry in revenue records does not confer title

on a person whose name appears in record-of-rights and no

ownership is conferred on the basis of such entries. So far as title

to the property is concerned, it can only be decided by a competent

civil court."

9. As seen from the documents filed by the respondents, i.e.,

re-survey and re-settlement registers, they emphasize that the

lands in survey Nos.139 and 140 are government lands. This

Court cannot decide the disputed question of fact while

exercising jurisdiction under Article 226 of the Constitution of

India, in view of the law declared by the Apex Court in D.L.F.

Housing Construction Pvt. Ltd., v. Delhi Municipal Corporation and

(2007) 6 SCC 186

others3. The issue involves factual dispute and is purportedly

subject to alternative statutory remedy available before the

appropriate civil court. As such, this Court is not inclined to

decide the dispute pertaining to settlement of claim which is a

disputed question.

10. In view of the law settled by the Apex Court in the aforesaid

judgments, the documents filed by the petitioner are not relevant

to establish the right of the petitioner herein over the subject

property. Therefore, the petitioner has to approach competent

civil court for declaration of his right and title over the subject

property.

11. For the aforesaid reasons, it is made clear that any act

done by the respondents herein in the above said survey

numbers, it is subject to the result of right over the property. As

this Court cannot adjudicate the title dispute in between the

petitioner and the respondents herein, the Writ Petition fails

and, accordingly, it is liable to be dismissed.

12. Resultantly, the Writ Petition is dismissed. However,

liberty is given to the petitioner herein to approach appropriate

AIR 1976 SC 386

civil Court to establish his right over the subject property so as

to claim any compensation from the respondents herein. There

shall be no order as to costs of the Writ Petition.

As a sequel, interlocutory applications pending, if any, in

this Writ Petition shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 18.10.2023 siva

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

WRIT PETITION No.7634 OF 2018

Date: 18.10.2023

siva