Syed Zainulabuddin, vs Kheda Vijay Monan Sharma
2022 Latest Caselaw 5043 Tel

          HON'BLE Smt. JUSTICE P.SREE SUDHA

        CIVIL REVISION PETITION No.825 of 2019

                          ORDER

1. This revision is directed against the order dated

14.02.2019 passed in file No.F1/IA-06/2004 on the file of the

Joint Collector, Mahabubnagar.

2. Syed Zainulabuddin filed this revision during the

pendency of the proceedings. He died on 26.04.2021 and his

legal representatives were brought on record as per the order

dated 13.08.2021 passed in I.A.No.1 of 2021 as Petitioner

Nos.2 to 8. They submitted that in CRP No.14607 of 2017

this Court directed the authorities to deal with the issue of

delay while deciding the main appeal but not permitted the

first respondent to file a petition after a lapse of more than 25

years for condoning the delay. The first respondent failed to

file the condone delay petition at the initial stage and as such

it cannot be entertained at the belated stage and the delay of

27 years 8 months and 21 days cannot be condoned without

valid reasons. The petitioners would further assert that his

father-first petitioner was in continuous possession of land

from 1960 till date. The first respondent was never in

possession and he has no right in the land and thus

requested the Court to set aside the order of the Joint

Collector.

3. Late Srinivasa Chary was the head of Brahmans in the

Samasthan of Raja Balachander of Balanagar Samasthan.

The lands of village Agraharam Potlapalli were service inams

by the Raja of erstwhile Samasthan to Brahman Community.

The total extent in Sy.No.79 was Ac.43.00 guntas. After the

demise of Srinivasa Chary, his son Krishnama Chary

inherited the property prior to 1953-54 and became owner,

pattadar and possessor of the land along with other lands

and that his name was also mutated in revenue records and

also in Khasra Pahani for 1954-55. After Jamabandhi in

1975-76 the survey number was divided into three numbers

viz., Sy.No.44 to the extent of Ac.19.27 guntas and the

remaining extent in Sy.Nos.39 and 40. The said properties

were partitioned between Krishnama Chary and his brother

K.Narasimha Chary on 27.04.1980 under a partition deed

and after partition their names were mutated in the revenue

records. Sy.No.44 fell to the share of Krishnama Chary and

whereas Sy.Nos.39 and 40 fell to the share of his brother and

that from the date of partition Krishnama Chary was in

possession of the said land. The first respondent herein had

worked in Electricity Department and his brother worked as

Employment Officer and retired from service and due to their

employment they are not living in the village. The first

respondent cultivated the lands by giving them on lease till

1995 and thereafter, he left the lands without cultivation for

some period. In the meanwhile, the petitioner herein

managed the revenue officials and got entered his name as

possessor of the land in Sy.No.44 and also filed an

application for grant of Occupancy Rights Certificate (ORC)

without making the first respondent as party to the

proceedings and without any notice to them and obtained

ORC vide proceedings D.Dis.No.K/3474/1989 dated

02.09.1989.

4. Perusal of the proceedings dated 02.09.1980 shows

that Syed Zainulabuddin filed a declaration under A.P. (TA)

Inam Abolition Act, 1955 (for brevity, 'the Act of 1955') for

grant of ORC in respect of the lands in Sy.No.44 along with

other survey numbers by stating that he purchased the same

by a private sale deed from Venkatacharyulu and

Thirumalacharyulu who are inamdars. Notices were issued to

all the interested persons and as there is no objection from

any one, ORC was issued in his favour. Aggrieved by the said

order Vijaya Mohan Sharma, son of Krishnama Chary, first

respondent herein, filed Case No.F2/IA-6/2004 before the

Joint Collector, Mahabubnagar, and his case is only

restricted to Sy.No.44 to an extent of 19.27 guntas. He also

enclosed copy of the judgment dated 14.07.2009 passed in

O.S.No.7 of 2005 on the file of the learned Senior Civil Judge,

Mahabubnagar, which was decreed in their favour. In the

appeal, the appellant therein contended that ORC for

Sy.No.44 was issued in favour of the respondent therein

without their knowledge and notice. He also asserted that in

O.S.No.7 of 2005 he was declared as owner and the

respondent therein did not file counter. In the said judgment

it was observed that in a written statement filed by the

defendant before the Civil Court he stated that he purchased

the land in Sy.No.44 from the father of the first respondent

herein in the year 1974 through private sale deed. The Joint

Collector observed that this admission clearly shows that

defendant was not in possession during 1973-74 as on the

date of vesting i.e. 01.11.1973. As per the pahani of the year

1973-74 the father of the first respondent was in possession

of Sy.No.44 and as per Section 8(1) of the Act of 1955 only

the person who immediately before the date of vesting i.e.

01.11.1973 has an inam land under his personal cultivation,

entitled to be registered as occupant of such inam land. In

the case on hand, the petitioner herein purchased in the year

1974 and was not in possession as on 01.11.1973 and thus

he is disentitled for ORC and accordingly the order dated

02.09.1989 passed in ORC No.K/3474/89 by the Revenue

Divisional Officer, Mahabubnagar, was set aside and the

appeal was allowed and the Revenue Divisional Officer was

directed to issue ORC as per the provisions of the Act of

1955.

5. Aggrieved by the order dated 19.02.2011 the petitioner

therein approached this Court by way of filing CRP No.1460

of 2017 by contending that the application is filed with the

delay of twenty days. In fact, ORC was granted in the year

1989 and the appeal was filed in the year 2004 and the

number of days delay was not properly calculated and not

explained properly and that there was no order regarding

condonation of the delay and as such the order of the Joint

Collector is to be set aside. The first respondent in the

revision petition stated that fraud was played upon him by

the revision petitioner and thus fraud vitiates all the

proceedings and therefore the question of delay and

condonation of delay does not arise. This Court after hearing

both sides observed that the issue of fraud is a mixed

question of law and fact and it must be pleaded in detail and

establish by cogent evidence. As the Joint Collector did not

deal with the delay and there is no separate order condoning

the delay to set aside the order of the Joint Collector,

remitted the matter to the Joint Collector for disposal afresh

and directed him to deal and decide with regard to delay in

presenting the appeal after taking into consideration the

explanation offered by the first respondent herein for delay

and objections raised by the petitioner herein.

6. In the light of the above observations passed by this

Court, an application viz., I.A.No.6 of 2004 is filed by Vijay

Mohan Sharma-first respondent herein on 28.11.2017 and

submitted that Venkatacharyulu and Thirumalacharyulu are

not concerned with the subject land and they are pattadars of

other lands. He also submitted that though the petitioner

herein stated that he purchased the land through private sale

deed, he did not file the same. His grandfather, father or

himself never executed any sale deed in favour of the

petitioner herein. It is also his contention that when the

petitioner herein purchased the land on 12.07.1974 why he

kept quiet for 15 years to get the ORC is not explained

anywhere. He would also assert that the petitioner herein

also preferred A.S.No.17 of 2011 against the judgment and

decree in O.S.No.7 of 2005 and the said appeal was

dismissed on 10.03.2017 and a copy of the judgment was

also filed. He would also submit that no notice was served

upon him and only when he came to know about the ORC

order through his elder brother in the year 2004, he obtained

certified copy of the same and filed appeal within thirty days

from the date of knowledge and there is no negligence on his

part in filing the appeal. The Joint Collector after considering

the said application and the reasons explained by the first

respondent herein, condoned the delay of 27 years 8 months

and 21 days in filing the appeal. Aggrieved by the said order,

the petitioner herein filed this revision.

7. Heard the learned counsel appearing for the revision

petitioners and the learned counsel appearing for the first

respondent. Perused the record.

8. In CRP No.1460 of 2017 (old W.P.No.10629 of 2014)

this Court observed that O.S.No.7 of 2005 was filed by the

fourth respondent against the revision petitioner seeking for

declaration of title, recovery of possession and mesne profits,

which was decreed after elaborate trial and after dismissal of

the first and second appeals the decree and judgment passed

in the suit between the parties became final and binding on

the parties. The first respondent in this revision would

submit that against the judgment in O.S.No.7 of 2005, an

appeal viz., A.S.No.17 of 2011 was preferred, which was

dismissed on 10.03.2017. Aggrieved by the same S.A.No.407

of 2017 was preferred and stay was granted in it on

14.07.2017 and the main second appeal is still pending on

the file of this Court. Vijay Mohan Sharma stated that in view

of the orders of the Joint Collector dated 19.02.2011, ORC

was granted to Syed Zainulabuddin as per the provisions of

the Act of 1955 by the Revenue Divisional Officer vide

proceedings in Case No.K/9552/2013 dated 17.12.2016. The

respondent would further state that while granting ORC in

the year 1989 no notice was issued to him and the revision

petitioner herein created false documents and misled the

Court. He would also submit that the revision petitioner on

the one hand says that he purchased the property from his

father through private sale deed in the year 1974 and on the

other hand he says that he purchased the property from

Venkatacharyulu and Thirumalacharyulu for which he has

not filed any sale deed in support of his contention and there

is no basis for both the averments. Even as per the perusal of

the proceedings of the ORC dated 02.09.1989 though the

revision petitioner stated that notices were issued to all the

interested parties, he has not issued notice to Krishnama

Chary who was shown in the possession of the land in

Sy.No.44 during 1973-74 as on the date of vesting i.e.

01.11.1973 inam land was under his personal cultivation and

he was entitled to be registered as occupant of such inam

land.

9. Further, the revision petitioner herein stated that he

purchased the property in the year 1974 and that the delay

petition is filed after 27 years. In fact, the first respondent

herein is pursuing the litigation from 2004 onwards. Initially

he filed an application to set aside the ORC order before the

Joint Collector in the year 2004, which was disposed of in his

favour in the year 2011. Thereafter, the revision petitioner

preferred revision before this Court and this Court after

hearing both parties remitted the matter back. Again, the

Joint Collector in an order dated 14.02.2019 condoned the

delay and he clearly observed that Krishnama Chary has no

knowledge of granting of ORC in favour of the revision

petitioner herein.

10. The revision petitioner mainly argued that as per the

directions of this Court in the Revision Petition, fresh

application cannot be received and only considering the

reasons explained in the previous application, the Appeal

before the Joint Collector is to be disposed of. The respondent

herein from the beginning stated that as he was working in

Electricity Department and his brother was an Employment

Officer and both of them were working at different places and

not living in the village. Though they cultivated the lands till

1995, they could not cultivate the lands for certain period

and during that period the revision petitioner herein managed

the revenue records and entered his name as possessor of the

land in Sy.No.44. In fact, the revision petitioner herein

obtained ORC for several survey numbers including Sy.No.44.

But the respondent herein raised an objection only in respect

of Sy.No.44 as it was issued in favour of grandfather of Vijay

Mohan Sharma i.e. Srinivasa Chary by Raja Balachander of

Balanagar Samasthan. Later his name was mutated in the

revenue records and also in Khasra pahani for 1954-55. In

view of Jamabandhi in the year 1975-76, Sy.No.79 was

divided into three survey numbers i.e. Sy.No.44 to an extent

of Ac.19.27 guntas and Sy.Nos.39 and 40 with remaining

land and the said extent was divided between Srinivasa

Chary and his brother Krishnama Chary on 27.04.1980

under a partition deed and Sy.No.44 fell to the share of his

brother Narasimha Chary. From then onwards, he is in

possession and enjoyment of the land and later his son

Krishnama Chary was in possession and his name was

reflected in the said pahanies.

11. It is needless to state that the appeal filed before the

Joint Collector is pending since 2004 onwards and in view of

remand by this Court in the revision, the authority is directed

to dispose of the appeal as expeditiously as possible,

preferably within a period of three months from the date of

receipt of the order in the revision.

12. Considering the above facts, this Court finds that there

is no infirmity in the order dated 14.02.2019 passed by the

Joint Collector, Mahabubnagar, in condoning the delay as the

revision petitioner herein played fraud upon the Court and

obtained ORC behind the back of the respondent herein,

though the first respondent herein is having valid title and

possession over the suit schedule property only to deprive his

rights.

13. In the result the civil revision petition is devoid of merit

and is accordingly dismissed confirming the order under

challenge. In consequence, the interim orders granted on

26.08.2019 in I.A.No.1 of 2019 in CRP No.825 of 2019 shall

stand cancelled.

14. Miscellaneous Petitions, if any, pending in this revision

shall also stand dismissed in the light of this final order.

____________________ P.SREE SUDHA, J.

12th OCTOBER, 2022.

PGS