Marthi Boosamma And 3 Others vs Nandula Kamala And Another
2022 Latest Caselaw 6403 Tel

                                      1
                                                                       Dr. GRR, J
                                                                   crp_1777_2022

           THE HON'BLE Dr. JUSTICE G. RADHA RANI

           CIVIL REVISION PETITION No.1777 OF 2022

ORDER:

This Civil Revision Petition is filed by the petitioners who are

respondent Nos. 1 to 4/defendant Nos.1 to 4 aggrieved by the order dated

28.07.2022 passed in I.A.No.44 of 2022 in O.S.No.51 of 2022 on the file of

the Sub-Divisional Magistrate and Special Assistant Agent to Government

(Mobile Court) at Bhadrachalam.

2. The parties are herein after referred as arrayed before the trial court.

3. The plaintiffs filed O.S.No.51 of 2022 for permanent injunction and

I.A.No.44 of 2022 for the relief of temporary injunction in respect of the

petition/suit schedule property. The case of the petitioners-plaintiffs was

that originally one late Koutha Suryanarayana purchased the petition-suit

schedule property from one Maruthi Sarabaiah S/o. Guravaiah through sada

sale deed on stamped paper, dated 29.06.1960. After the death of

Suryanarayana, his daughter, late Koutha @ Nandula Padmavathi, w/o.

Poornachandra Rao got the schedule property through succession.

Thereafter, late Padmavathi paid cisth receipts for the years 1960-61. After

the death of late Koutha @ Nandula Padmavathi, her elder son, the husband

of Petitioner No.1, Nandula Satyanarayana got a total extent of Ac.7-11gts.

Dr.GRR,J

as kartha of Hindu Undivided Family (for short "HUF") and was issued

13-B Dhruvapathram vide ROR/147/89, Malkaram in the year 1995 and

based on the said Dhruvapathram, late Nandula Satyanarayana was also

issued pattadar passbook. The said late Nandula Satyanarayana paid cisth

receipts for the years 1963-64, 1968-69, 1972-73 and 1979-80. Till the

death of Nandula Satyanarayana, he cultivated the schedule land as kartha

of HUF. The Land Transfer Regulation (for short "LTR") case Nos.

1320/74 and 763/2000/DPT filed against late Nandula Satyanarayana by

Maruthi Chandraiah, S/o. Maruthi Sarabaiah, were also dismissed and

orders were passed in favour of Nandula Satyanarayana on 29.08.1975 and

14.03.2001 respectively. After the death of late Nandula Satyanarayana,

the Petitioner No.1 got Ac.1-17 1/2 gts. in Survey No.532/2 and an extent

of Ac.2-08gts. in Survey No.535/4/2, a total extent of Ac.3-25 1/2 gts.

through succession and got pattadar passbook No.T27100080579. The

petitioner No.2, the brother of Nandula Satyanarayana got the land to an

extent of Ac.1-17 1/2 gts. in Survey No.532/1 and an extent of Ac.2-08gts.

in Survey No.535/4/1, a total extent of Ac.3-25 1/2 gts. towards his share

and got pattadar passbook No.T27100080580.

4. The respondents without any right or title over the petition-schedule

property were trying to trespass and disturb the petitioners' peaceful Dr.GRR,J

possession and were trying to grab the land of the petitioners and to

dispossess them high handedly by show of force. On 18.02.2022, the

respondents obstructed the petitioner from executing the soil work in the

schedule property. Due to timely resistance of the petitioner and other

neighbours, the respondents left the place threatening the petitioners with

dire consequences. Thereafter, the petitioners approached the Police,

Dammapeta to lodge a complaint, but the Police referred the matter to the

Tahsildar, Dammapeta for enquiry. Then, the Tahsildar, Dammapeta

conducted enquiry and issued his report vide Rc.No.B/147/2022, dated

21.02.2022 in favour of the petitioners and stated in his report that the

petitioners were in possession for more than 20 years. The petitioners were

apprehending danger to their possession of the schedule property in the

hands of the respondents and their henchmen, as such, filed the petition for

temporary injunction, and the suit for permanent injunction.

5. The petitioners filed photostat copies of thirteen (13) documents in

support of their contention.

6. The respondents filed counter denying the petition averments. They

contended that they were the owners and possessors of the schedule land

situated at Malkaram Revenue Village of Dammapeta Mandal, Bhadradri-

Kothagudem District. The revenue authorities assigned the schedule land to Dr.GRR,J

the respondent's grandfather and issued passbooks for Ac.9-00gts. The

name of the respondent's grandfather was recorded as pattadar in the entire

revenue records. After the death of the respondent's grandfather and

fathers, the respondents came into possession of the schedule land and were

raising eucalyptus trees in the schedule land. The petitioners belonged to

non-tribal community and were no way concerned with the schedule land

and were never in possession of the schedule land at any point of time. The

respondent's grandfather late Maruthi Sarabaiah, had not sold the schedule

land to anyone. The un-registered sada sale deed filed by the petitioners

was not clear and was not admissible in evidence under the Indian

Evidence Act. The petitioners created false sale deed and misrepresented

the revenue authorities and got the pattadar passbooks. Under the guise of

the passbooks, they were trying to occupy the schedule land from the

respondents. There was no prima facie case and balance of convenience in

favour of the petitioners and prayed to dismiss the I.A.

7. They relied upon the photostat copies of old passbook No.U299483

in Khatha No.690 in favour of Maruthi Chandraiah to an extent of Ac.2-

20gts. in Survey No.535, photostat copy of the assignment patta list

unsigned by any authority, photostat copy of hand written lineage of family Dr.GRR,J

tree and photostat copy of TONCH Map issued by the Survey Inspector,

Bhadradri-Kothagudem District.

8. On considering the oral and documentary evidence on record, the

Sub-Divisional Magistrate and Special Assistant Agent to Government

(Mobile Court), Bhadrachalam passed orders making absolute the ex-parte

temporary injunction order granted in favour of the petitioners-plaintiffs

restraining the respondents-defendants from interfering with the petitioner's

possession and enjoyment of the schedule property.

9. Aggrieved by the said orders passed by the Special Assistant Agent

to Government (Mobile Court), Bhadrachalam, the respondent Nos. 1 to 4-

defendant Nos.1 to 4 preferred this revision contending that the lower court

failed to see that the petitioners filed the petition showing the schedule

property with false boundaries. The court below failed to understand the

laws in Scheduled Areas of Telangana. Purchase of property by the

petitioner's grandfather through sada sale deed was void under Scheduled

Area Land Transfer Regulation. The purported sada sale deed was

inadmissible under Indian Evidence Act, Transfer of Property Act and

Indian Registration Act, 1908. The trial court failed to consider that the

land to an extent of Ac.4-16gts. in Survey No.535/4 was allotted to the

grandfather of the revision petitioners namely Maruthi Sarabaiah vide Dr.GRR,J

proceedings B/102/92 dated 25.04.1995. Once, the land was allotted to

tribal under assignment proceedings in Scheduled area, it was a bar to

purchase the land by non-tribals. The entire revenue records in favour of

the respondents were not valid in the eye of law and would not stand to

judicial scrutiny. The land in Survey No.532 to an extent of Ac.2-35gts.

and in Survey No.535 to an extent of Ac.334-16gts was government land

situated at Malkaram Revenue Village, Dammapet Mandal, Bhadradri-

Kothagudem District. Without looking into the revenue records, the

impugned order was passed by the court below. The orders passed in LTR

case Nos. 1320/74 and 763/200/DPT dismissing the cases filed by the

revision petitioners were not received by the revision petitioners from the

authorities. The court below without considering the procedure in

Telangana Agency Rules, 1924, granted injunction order. In view of the

impugned orders, the petitioners-plaintiffs were trying to interfere with

their possession. The lower court considering the Tahsildar's report dated

13.04.2022 was erroneous. The lower court committed a fundamental error

in calling for the report from the Tahsildar and placing reliance on the

same. The lower court felt the necessity of eliciting the opinion of the

Tahsildar regarding physical possession of the said property. The

appropriate course for it would have been to summon the Tahsildar and Dr.GRR,J

examine him as a court witness. By calling for a report from the Tahsildar

and placing reliance thereon, without giving an opportunity to the revision

petitioner to cross-examine the Tahsildar, the lower court committed a

serious jurisdictional error. The lower court granted the impugned order

basing on the Advocate Commissioner's report dated 05.07.2022. The same

was also erroneous. The Advocate Commissioner, without taking the

assistance of the Mandal Surveyor and revenue staff and without recording

the statements of the neighbouring farmers of the subject land, issued the

report. The same was not valid. It was unsustainable, erroneous and

violative of principles of natural justice. The Advocate Commissioner

could not be appointed for making an enquiry about the factum of

possession. The Advocate Commissioner could not be appointed to find

out the factum as to who was in possession of the property. When there

was a dispute with regard to possession of the suit property, the same

should be resolved on the basis of oral and documentary evidence.

Material issue of determining the possession could not be left to an

Advocate Commissioner and prayed to set aside the order passed in

I.A.No.44 of 2022 in O.S.No.51 of 2022 dated 28.07.2022 on the file of the

court of Sub-Divisional Magistrate and Special Assistant Agent to

Government (Mobile Court), Bhadrachalam.

Dr.GRR,J

10. Heard the learned counsel for the revision petitioners and the learned

counsel for the respondents.

11. The contention of the learned counsel for the revision petitioners was

three-fold. First, he contended that, the impugned order was passed in

favour of the plaintiffs without considering Regulation 3 of the AP

Scheduled Areas Land Transfer Regulation, 1959, which would prohibit

transfer of immovable property by a member of Schedule Tribe to the

persons outside the agency area. The contention of the revision petitioners

was that their grandfather was allotted the schedule land vide proceedings

No.B/102/92, dated 25.04.1995. As per Regulation 3 of the AP Schedule

Areas Land Transfer Regulation, 1959, any transfer of immovable property

situated in the agency tracts by any person shall be absolutely null and

void, unless such transfer is made in favour of a person who is a member of

Schedule Tribe or a society registered or deemed to be registered under the

AP Co-operative Societies Act, 1964, which was composed solely of

members of the Schedule Tribes. The contention of the learned counsel for

the plantiffs, on the other hand was that the schedule property was

purchased by the grandfather of the plantiffs on 20.06.1960 and the father

of the revision petitioners challenged the sale deed executed by the

grandfather of the revision petitioners in favour of the grandfather of the Dr.GRR,J

plaintiffs vide Land Transfer Regulation Order in case No.1320/74 and the

Special Deputy Collector (Tribal Welfare), Palvancha vide order dated

29.08.1975, dismissed the petition holding that there was no contravention

of the provisions of the Regulations. No appeal was preferred against the

said order within sixty (60) days, though an appeal would lie to the Agent

to the Government and Collector, Khammam from the date of the order.

But, the father of the revision petitioners, again filed another application

before the Special Deputy Collector vide LTR Case No.763/2000/DPT.

The same was also dismissed on the ground of res judicata. Once, the

authorities closed the issue stating that, the transaction took place prior to

01.12.1969, the petitioners agitating the same before this Court was not

proper.

12. The learned counsel for the respondents-plaintiffs filed the orders of

the Special Deputy Collector (Tribal Welfare), Palvancha in LTR Case

Nos.1320/74 and 763/2000/DPT, dated 14.03.2001 in support of his

contention. He also further contended that no such argument was taken by

the revision petitioners in their counter or in their written arguments filed

before the trial court, so as to countenance the same effectively in

I.A.No.44 of 2022 in O.S.No.51 of 2022.

Dr.GRR,J

13. It is to be remembered that in a suit for permanent injunction and an

interlocutory application for temporary injunction what is prima facie

material is to see as to who is in possession of the property by the date of

filing the suit and the application.

14. The second objection taken by the learned counsel for the revision

petitioners was that the trial court relied upon the report of the Tahsildar

and the same was not in accordance with law. The learned counsel for the

revision petitioners relied upon the judgment of this Court in Maloth

Veeru @ Heerala and others v. Guguloth Mangi1, wherein it was held

that:

"The lower court committed a fundamental error in calling for the report from the Tahsildar and placing reliance on the same without summoning its author and examining him, which was alien to the procedure before the civil court".

15. The third objection taken by the learned counsel for the revision

petitioners was that the trial court placed reliance upon the Advocate

Commissioner's report and that the Advocate Commissioner could not be

appointed to find out the fact as to who was in possession of the property.

When there was a dispute with regard to the possession, the same should be

resolved on the basis of oral and documentary evidence adduced by the

parties, but the said duty could not be left to the Advocate Commissioner.

2012 (2) ALD 455 Dr.GRR,J

16. The learned counsel for the respondents-plaintiffs, on these aspects,

accepted the contention of the revision petitioners, that placing reliance

upon the report of the Tahsildar and Advocate Commissioner by the trial

court was an irregularity and prayed to remand the matter to the trial court

to consider the issue basing on the documents filed by both the parties

without placing reliance upon the reports of the Tahsildar and the Advocate

Commissioner.

17. On a perusal of the order of the trial court, it would also disclose

that, though the trial court referred to the various documents filed by both

the parties, had not marked the same as exhibits. The same was also not

proper. This Court in Civil Revision Petition No.155 of 2016, dated

22.04.2016, while referring to the earlier judgments of this Court in AP

Minerals Development Corporation Limited, Hyderabad v. M/s.

Trimex Minerals Private Limited2, and another decision in T.Bhopal

Reddy and another v. K.R.Lakshmi Bai and another3, held that:

"No just decision as regards the property in dispute can be made without looking into the documentary evidence that may be relied upon by both the parties. In the light of the contentions urged by both the parties, it is always necessary to refer to and carefully examine the recitals in the documents before coming to a just decision in the matter. Unless, the documents filed by both the parties are exhibited, the documents will not be sent to this Court from the trial court along with the lower court records. Unless, the documents are before this Court and are duly exhibited, it is neither possible nor is just and

1998 (1) ALD 533

1998 (1) ALD 770 Dr.GRR,J

proper to appreciate the rival contentions. The trial court ought to have allowed the parties to have their documents exhibited before disposing of the Interlocutory Application on merits. Even in a case where the parties failed to make a request to exhibit their documents for consideration in the Interlocutory Application, it is the duty of the court to see that the necessary documents are exhibited. It is not a case where the parties specifically opted not to exhibit for one reason or the other. Rule 60 of Civil Rules of Practice says that the enquiry into the Interlocutory Application shall be conducted by receiving affidavits but if the judge directs that the evidence be given orally, then it shall be recorded and the exhibits be marked in the same manner as in the case of suits. Even going by the principles of natural justice and equity and fair practices applicable to the judicial proceedings and in order to maintain transparency, it is necessary to allow the parties to exhibit the documents on which they rely upon to prove a prima facie case and the material propositions which they urged in their pleadings that call for consideration in an interlocutory enquiry."

18. Hence, it is considered fit to allow the Civil Revision Petition by

setting aside the impugned order in I.A.No.44 of 2022 in O.S.No.51 of

2022 and remand the matter to the trial court to consider the issue basing on

the documents filed by both the parties by marking them and dispose of the

said application afresh on merits in strict accord with the procedure

established by law without considering the Advocate Commissioner's

report and the Tahsildar's report. This Court in Maloth Veeru @ Heerala

and others v. Guguloth Mangi (1 supra) also held that:

"The lower court committed a fundamental error in calling for the report from the Tahsildar and placing reliance on the same. The lower court is discharging the functions of a civil court in the agency areas. Placing reliance on a report without summoning its author and examining him is something alien to the procedure before a civil court. If the lower court felt that the necessity of eliciting the opinion of the Tahsildar regarding the physical possession of the suit property, an appropriate course for it would have been to summon the Tahsildar and examine him as a court witness. Such a procedure Dr.GRR,J

would have ensured that an opportunity is given to both the parties to cross-examine such witness. By calling for a report from the Tahsildar and placing reliance thereon, without giving an opportunity to the petitioner to cross-examine the Tahsildar, the lower court has committed a serious jurisdictional error"

19. Hence, in view of the judgments of this Court as extracted above, the

matter is remanded to the trial court to dispose of the application afresh on

merits in strict accord with the procedure established by law within a period

of thirty (30) days from the date of receipt of copy of this order.

20. In the result, the Civil Revision Petition is disposed of with the above

directions. No order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J December 05, 2022 nsk