Smt. Pulyala Vasantha, vs The Agent To The Government And Project ...
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Telangana High Court

Smt. Pulyala Vasantha, vs The Agent To The Government And Project ... on 18 June, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

                                     1



         THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

                  WRIT PETITION No.16807 of 2023

ORDER:

This writ petition is filed seeking a Writ of Mandamus, declaring

the judgment of the 1st respondent passed in the Court of Additional

Agent to the Government and Project Director, ITDA, Eturunagaram in

Rc.No.1.TR/G-Pet/420/2012-15 dated 29.04.2023 as illegal, arbitrary,

opposed to law, and contrary to the procedure contemplated under CPC.

2. Heard Sri M. Vidyasagar, learned counsel for the petitioner; and

the learned Government Pleader for Social Welfare for the respondents.

3. The case of the petitioner as per the averments in the writ affidavit

is that the petitioner is the absolute owner of the land admeasuring an

extent of Ac.30-00 in Survey No.109/A at Pasranagaram Village,

Govindraopetmandal, Mulug District (earlier Warangal District) having

acquired the said right through Sri S.K. Raghavachary who executed a

Will on 29.04.2007 in favour of the petitioner herein and got it registered

as Document No.57 of 2007. Thus, by virtue of the same the petitioner

herein substantiated her right on the suit schedule property with

absolute right and she is enjoying the property right since the said

execution of the Will Deed. Sri S.K. Raghavachary passed away on

13.01.2011. The facts about the petitioner being the absolute owner of

the suit schedule property has been substantiated by the order of the

Joint Collector, Warangal vide Rc.No.E5/4080/2006 dated 05.05.2007.

wherein in a revision filed by Sri S.K. Raghavachary who executed the

rights in favour of the petitioner herein and the Joint Collector while

allowing the revision directed that the Tahsildar, Govindaraopet to delete

the names of non-tribals in the revenue records in Sy.No.109/A situated

at Pasranagaram village, Govindaraopetmandal, Mulug district, in

contravention of the provisions of LTR, 1959 and thus consequently

directed issuance of pattadar passbooks in favour of the petitioner in

respect of the suit land and as per the demarcation of the Assistant

Director, Survey and Land Records, Warangal, and in accordance with

the Record of Rights Rules. The order impugned before the Joint

Collector i.e., dated 09.05.2000 by the Mandal Revenue Officer and the

consequent order of the Revenue Divisional Officer, Mulug incorporating

the names of respondents 4 to 29 made several attempts to disturb the

order by filing false and frivolous petitions were unsuccessful. Thus, it

has got to be presumed that the petitioner, plaintiff in the suit is the

absolute owner of the suit schedule property. The petitioner's possession

on the suit schedule property was being disturbed by respondents 4 to

29 every now and then and thus to prevent them from interfering with

the suit schedule property the petitioner herein filed O.S., before the

Court of the Agent (District Collector), Warangal, Schedule Tribe area,

wherein the petitioner herein sought an injunction restraining the

defendants i.e., respondents 4 to 29 from interfering on the suit schedule

property. The Collector in conformity with the agency lands transferred

the case to the Project Officer, ITDA, Eturinagaram, and the same was

numbered as 420 of 2015. Along with the original petition filed before the

Collector, the petitioner herein also filed an I.A seeking adinterim

injunction against the defendants i.e., i.e., respondents 4 to 29 herein

from interfering with the suit schedule property. The defendants did not

file written statement but filed a Memo dated 04.12.2005 contending that

the suit was not maintainable and the same has to be filed before proper

Court. On the memo filed by respondents 4 to 29, the 1st respondent

transferred the suit to the Original Agency Court ITDA i.e, Special Deputy

Collector, TW ITDA., Eturinagaram on the point of original jurisdiction.

The said order passed in the IA was assailed before this Court in

W.P.No.26591 of 2017 and this Court by order dated 19.09.2017 allowed

the same directing the 1st respondent to dispose of the suit in accordance

with law. In pursuance of the same, an order was passed and the same

was assailed in WP No.34955 of 2022. Once again an order was passed

vide Rc.No.LTR/G-Pet-420/2012-2015 dated 08.06.2022 which was

assailed in WP No.34955 of 2022 before this Court. The complaint in the

writ petition was the judgment passed by the 1st respondent without

perusing the contents of the plaint and not even taking into consideration

the documents filed by the petitioner which substantiated her right on

the property and by not conducting a trial in conformity with procedure

contemplated in the CPC. The Hon'ble Court in WP No.34955 of 2022

dated 20.10.2022 set aside the order and remanded the matter once

again to the 1st respondent directing him to pass orders on the suit filed

by petitioner for injunction within a period of 3 months. Once again the

1st respondent committed same error in passing a judgment in suit filed

by petitioner dated 29.04.2023 totally dispensing with the procedure

contemplated under CPC wherein it is mandatory that the 1st respondent

who is given powers to adjudicate a suit in agency area must invariably

follow the procedure contemplated under law. The adjudication has to be

done by 1st respondent in conformity with the procedure followed by Civil

Court. The 1st respondent neither framed an issue on the basis of the

pleadings nor the petitioner as well as the respondents to adduce

evidence on the strength of necessary documents marked as evidence.

Thus, a perusal of the order passed by 1st respondent in the suit by the

impugned judgment disclose that the Court below has passed the

judgment in total ignorance of law and the impugned judgment does not

contain a decree to be adjudicated in an appeal suit as per law.

4. Learned counsel for the petitioner contends while reiterating the

factual aspects as contained in the writ affidavit would primarily contend

that the impugned judgment is illegal as the 1st respondent has not

followed the procedure contemplated under law and as an Agent to the

Government the 1st respondent is adjudicating the suit in an agency area

and therefore the 1st respondent ought to have followed the procedure of

the Civil Court and the documents filed by the petitioner were not taken

into consideration which substantiated the right of the petitioner and by

not conducting the trial in accordance with the procedure under CPC, the

impugned judgment passed by the 1st respondent is bad in law.

5. Learned Government Pleader appearing for respondents would

submits that the impugned judgment does not suffer from any illegality

or infirmity as the same was passed after considering the documents filed

by the parties and after framing the issues and by following the

procedure contemplated under law, and therefore there is no merit in the

writ petition.

6. On a perusal of the impugned judgment of the 1st respondent, it

may be noted that in the plaint filed in Rc.No.LTR/G-Pet/420/2012-

2015, the plaintiff claimed that she is the absolute owner and possessor

of suit land and that she was given Patta No.174 and Pass Book

No.096505 by the Tahsildar, Govindaraopet in recognition of her title and

possession and that she has been in continues to be in actual physical

possession of the suit land; and that one S.K.Narsimha Chary (late) was

the protected tenant of TVK Shastry (late) and a certificate was issued to

S.K. Narasimha Chary under Tenancy and Agricultural Act, 1950. By

virtue of said certificate, he was treated as pattadar of the suit land and

in addition to that he was also in possession of Ac.10-00 guntas of land

as tenant and that land is adjacent and towards East of the suit land and

the whole area of Ac.40-00 guntasia compact block; that one E.

VenkatramNarsaiah began to trespass in the suit land, and S.K.

Narasimha Chary filed a suit O.S.No.20 of 1966 on the file of I Additional

DistritMunsiff, Warangal, against E. VenkatramNarsaiah including TVK

Shastry, pattadar, and during pendency of suit S.K.Narasimha Chary

passed away in the year 1968 and his son S.K. Raghava Chary came on

record as L.R in the suit, and he also passed away on 13.11.2011 and he

executed a Will Deed dated 24.09.2007 in favour of plaintiff and got it

registered as Document No.57 of 2007. It was stated that the suit was

contested and perpetual injunction was granted against defendants but

E. VenkatramNarasaiah filed a petition filed seeking setting aside an ex-

parte decree to be passed but it was dismissed and another petition was

also dismissed and he filed a third petition which was allowed on

payment of costs; and thereafter S.K. Raghva Chary challenged the said

order in the Hon'ble High Court which was decided in favour of Raghava

Chary and thereafter Raghava Chary filed an execution petition E.P.No.1

of 1984 before the District Munsiff, Mulugu for implementation of

injunction decree. It was again contested by E. VenkatramNarsaiah in

the said E.P., the Court got surveyed and identified the land in E.A.No.8

of 1987, Police Aid was also granted which was challenged in High Court

by VenkatramNarsaiah but the High Court confirmed the orders passed

by Munsif Magistrate Court in Cr.P.Nos.1552, 1553 and 1614 of 1988.

Disclosing above facts, a petition was filed by late S.K.Raghava Chary,

before the MRO Govindraopet, but he refused to issue a pass book, S.K.

Narasimha Chary challenged the said Memo of refusal by an appeal

before R.D.O. Mulugu, which resulted in filing a revision before the

Collector, Warangal, who made over the appeal to the Joint Collector, and

the Joint Collector examined the records thoroughly and came to the

conclusion that the view taken by MRO is incorrect, and consequently

the revision No.E5/4060/2006 dated 05.05.2007 was allowed. The Joint

Collector directed the Tahsildar, Govindaraopet to delete the names of all

non-tribals recorded in the pahanies in respect of Survey No.109

measuring about Ac.160-28 guntas. He has also directed to issue pass

book in respect of suit land to late S.K. Raghava Chary, and the

petitioner in pursuance of Will Deed vide Document No.57 of 2007

became the owner of the suit property and sought for impleading as L.R

to the estate of the deceased Raghavachary to an extent of Ac.30-00

guntas of land. Hence, the petitioner prayed for an injunction restraining

the defendants (respondents herein) from interfering with her possession

of the suit land.

7. The Court below has recorded that the petitioner filed the following

documents in support of her plaint.

01. Will Deed registered vide Document No.57 of 2007 dt. Ac.30-00 gts of agricultural land situated in PasraNagaram village of GovindaraopetMandal, then Warangal District bequeathed by S.K. Raghavachary, S/o late S.K. Narasimha Chary.

02. Pattadar passbooks

03. Title deeds issued by Tahsildar, Govindaraopetmandal.

04. AdangalPahani for the year 2014-15 (meeseva) dated 10.07.2015.

05. Form Namuna - I 1973 A.P. Land Records (Agriculture Ceilings Act) U/S 18 dt.11.02.1975

8. The defendants (respondents herein) filed a written statement

inter-aia contending that defendants 1 to 26 and 23 others have filed suit

for permanent injunction vide O.S.No.54 of 2007 against the State of A.P.

represented through District Cllector, Warangal, the Tahilsar,

Govindaraopet and S.K. Raghava Chary contending that the plaintiff No.1

is the absolute owner and possessor and enjoyment of lands in Sy.No.109

of Pasra village, Govindaraopetmandal and statedthat land comprised of

Sy.No.109 and other lands originally belonged to one TVK Shastry, r/o

Nakkalagutta, Hanamkonda, and in or about the year 1954, (1) Smt.

GundavarapuKanthamma, w/o late VeeraRaghavaRao, r/o Hanamkonda,

entered into an agreement with TVK Shastry, the pattdar, owner of lands

in Sy.No.85 (old) situated at Pasra to an extent of Ac.50-00 gts etc., for

sale consideration of Rs.5,000/- on 20.12.1954 in pursuance of which

she was put in possession of the aboe land. Further stated that

GundavarapuJanamma, w/o BheemRao, r/o Nayeem Nagar,

Hanamkonda, entered into an agreement of sale dated 20.12.1954 with

late TVK Shastry agreeing to purchase lands comprised in Sy.No.85 (old)

measuring Ac.75-00 gts etc., totaling to Ac.125-00 gts for sale

consideration of Rs.5,000/- and that she was put in possession. Thus

both of them are in possession and enjoyment of the aforesaid land, and

both the ladies have paid Rs.2,000/- each to TVK Shastry towards part of

sale consideration. However, due to subsequent disputes

O.S.No.31/1/1956 and 29/1/1956 for specific performance came to be

filed, and the suits were transferred by the High Court to I Additional City

Civil Court, Hyderabad and they were renumbered as O.S.Nos.20 and 21

of 1963 respectively and they ended in compromise. Thereafter the said

Janamma/plaintiff in O.S.No.20 of 1963 executed an assignment deed in

favour of her brother VenkatramNarsaiah in respect of land covered by

the above said decree thereby VenkatramNarsaiah became the decree

holder of the lands covered by the decrees. Likewise the plaintiff in

O.S.No.21 of 1963 executed a Will Deed dated 18.04.1971 in favour of

VenkatramNarsaiah bequeathing all her rights and interest in the decree

in O.S.No.21 of 1963 after his death to his wife E. Susheela Devi (plaintiff

No.1's mother) and after her death, to the children of VenkatramNarsaiah

including the plaintiff No.2. And that E. VenkatramNarsaiah died on

17.01.1998 intestate leaving behind his wife and plaintiff No.1 in the suit

and five sons including plaintiff No.2 as his heirs and legal

representatives to all the properties including the suit provperties covered

by decrees in O.S.No.20 of 1963 and O.S.No.21 of 1963 properties by

virtue. Thus, the plaintiff No.1 has succeeded to the suit lands after the

death of the late E. VenkatramNarsaiah and also by virtue of Will Deed

dated 18.04.1971 executed by Gundavarapujanamma in favour of E.

VenkatramNarsaiah and also by virtue of she being the wife and legal

representative of E. VenkatramNarsaiah in respect of the suit properties

covered by the compromise decree in OS No.20/1963; and that the late

E. VenkatramNarsaiah has entrusted the management of the said land

during the lifetime situated in Pasra village to plaintiff No.2 and thus

plaintiff No.2 managed the suit land by clearing the land and leveling and

brought about Ac.70 guntas under cultivation; that after death of

VenkatramNarsaiah, plaintiff No.1 also allowed plaintiff No.2 to continue

to manage suit properties covered by two compromise decrees by virtue of

oral partition affected by VenkatramNarsaiah in or about the year 1976.

Further, the plaintiff submitted that in the year 1989, the plaintiff No.2

has filed O.S.No.68 of 1989 on the file of I Additional Senior Civil Judge,

Warangal for permanent injunction against defendants therein when they

tried to interfere with his possession and enjoyment over the suit lands.

The said Court also granted temporary injunction and on the strength of

interim order, the defendants stopped their interference, thereafter the

persons by name S.K. Raghava Chary and MittapallyVenkateshwaru filed

impleading petitions in the said suit as defendant Nos.26 and 27

respectively and they were added a such; that later the lower Court after

hearing the parties vacated the interim injunction thus resulting in CMA

No.75 of 1989 before I Additional District Judge Warangal, and later

defendant No.26 also filed CMA No.83 of 1989; that they resulted in filing

of CRP No.894 of 1990 and CRP No.484 of 1991 and the High Court

after hearing both sides remanded the matter back to lower Court; that

finally plaintiff No.2 came to know that the said suit was closed on no

instructions being supportd by his counsel T. VenkateshwaraRao, and

further stated that S.K. Raghavachary did not turn up at any time

subsequently to Pasra during all these years. Plaintiff No.2 entered into

this agreement to plaintiff Nos.3 to 41 to cultivate the suit land on crop

share basis and pay him half share after deducing fertilisers etc.

accordingly plaintiff No.3 to 41 cultivating the suit land on ehalf of

plaintiffs; as such the plaintiff Nos.1 and 2 sought for perpetual

injunction from the IV additional District Judge, Warangal, where they

obtained interim injunction; that they have also sought for declaration of

pattadar pass book and title deed obtained vide Rc.No.E5/4060/2006

dated 05.05.2007 by the Joint Collector, Warangal in Sy.No.109 granted

in favour of defendant No.3 to cancel and grant perpetual injunction

restraining the defendant Nos.1 to 3. When the suit came up for hearing

and ended in dismissal by judgment dated 06.06.2022 invoking

provisions of Regulation, 1959, and directed the Tahsildar to take

possession of the suit land.

9. It may be noted that the plaintiff filed WP No.34955 of 2022 before

this court assailing the dismissal order dated 06.06.2022 and this Court

set aside the same and directed the Court below to pass orders in the

suit filed by the plantiff for injunction within a period of three months. In

compliance thereof, the case was reopened for fresh enquiry and notices

dated 04.01.2023 were issued to the parties fixing the date of hearing as

18.01.2023 at the Office of P.O., ITDA, Eturunagaram, and in response to

the said notice the parties appeared through their counsel and the

plaintiff insisted for interim orders in the petition filed under Order 39

Rule 1 CPC to restrain the respondents from interfering in her physical

possession over the suit land, and the Court below passed status quo

order on 08.02.2023 in IA No.1 of 2023 in respect of the suit schedule

property until further orders; and that defendant Nos.2 to 5, 7, 10, 13 to

17, 20 to 22, and 24 to 26 filed counter dated 18.03.2023; and the

plaintiff and defendants submitted their contentions; the

TahsildarGovindaraopet directed to submit the factual report in respect

of suit land; and accordingly a report dated 10.03.2023 was submitted;

and no fresh documents were filed by the parties; and that some people

of Pasranagaram village have submitted a representation on or about

25.01.2023 to the effect tht they have erected some temporary thatched

sheds in Sy.No.109 and that the said land is in their possession; and in

support of the same, news items published in daily newspapers are made

available at subsequent at subsequent dates.

10. Upon considering the pleadings and the documents and the

arguments advanced in support thereof, the Court below has recorded a

finding as under:

"From thepleadings and the documents referred to above by both the parties and also the report of the Tahsildar, Govindaraopet, dt.10.03.2023, it is clear that there is a dispute between the parties and their predecessors in title since decades together. It is further observed from the records more particularly from the field enquiry report dt.10.3.2023 that there is dispute about the possession over the suit schedule properties and the plaintiff Smt. P. Vasantha is not in physical possession and cultivation of the suit land. Attested copies of pahani for the year 2009-2010 submitted by the Tahsildar, Govindaraopet further shows that the name of S.K.Narsimha Chary is recorded as pattadar to an extent Ac.25.30 guntas in Sy.No.109/A/aa (Telugu) of Pasranagaram (V) and the names of PagillaIndir, ShayamalaSammi Reddy, YanalaChiranjeevi, E. RaghunmohanRao, Vasampeli Indira, AaramVenkatesh, PattapuVenkatamma, Md. YazdaniSappidiVenkat Reddy, YanalaDhanalaxmi, Pannala Krishna Reddy, Vempalli Ram Reddy, SappidiSathemma, KolluBixam Reddy, KollluVenkat Reddy, BaddamPdma, Enugu Veeraswamy, SamanthapuBalaraju and SangaNarahari are recorded in cultivators column. Though the latest pahanies are not submitted

by anyp arties to the suit, the report of the Tahsildar, Govindaraopet, dt.10.03.2023 clearly shows that the plaintiff is notinossession of the suit schedule property and that some non- tribals belonging to Pasra (V) are cultivating the lands to an extent of Ac.30.00 guntas illegally. It is further reported that an extent of Ac.10.00 guntas of land in the said survey number is encroached by 200 and above persons belonging to Pasra (V) illegally.

From the above facts, circumstances, record and pleadings it is clear tht though the suit land is not in physical possession of the plaintiff as on the date of filing of the suit, she has filed the suit for the relief of permanent injunction restraining the defendants from interfering in her possession. As such, the plaintiff appears to have approached this court with unclean hands and suppressing the real facts. It is well settled in law that a person can be non-suited if he/she suppresses the facts and approach the court with unclean hands is not entitled to the relief before the court. Thus plaintiff has failed to prove her physical possession over the suit land as on the date of filing of the suit hence she is not entitle for the relief of permanent injunction. Therefore the suit of the plaintiff is liable to be dismissed accordingly dismissed without costs.

11. In the writ petition WP No.26591 of 2017, the issue raised by the

learned counsel for respondents 4 to 29 is only with regard to

jurisdiction, stating that the transfer of the suit by 1st respondent to the

2nd respondent is bad in law in view of Rule 7 of the Agency Rules, 1924,

and therefore the suit filed by the petitioner in OS No.420 of 2015 has to

be heard by the 1st respondent only; and after hearing both sides, this

Court by order dated 19.09.2018 allowed the writ petition directing the

1st respondent to dispose of the suit in accordance with law.

12. Having considered the rival submissions, the material on record,

more particularly the impugned judgment, it may be noted that the Court

below has considered the documents filed by the parties, and also

afforded opportunity of hearing after issuing notices to the parties and it

is only after considering the pleadings and the oral submissions made by

the respective counsel for both the parties, the suit was dismissed.

Further, it may be noted that in the plaint presented under Section 26

read with Order IV Rule 1 of CPC and Section 38 of the Specific Relief

Act, before the Additional Agent to the Government and Project Officer,

ITDA, Eturunagaram, it is the specific prayer of the petitioner to grant

permanent injunction and restore physical possession in her favour.

Further, the Court below observed as under:

"Though the defendant No.1 filed his written statement, not pressed for the issue for long. But, as per the pleadings made by him it is observed that, the original pattadar of the lands TVK Shastri, alienated the suit lands in favour of Gundavarapu Kantamma and Janamma, who are the ancestors of the defendant 1, on which his ownership was exhausted by then in the form of certificate issued under section 38E of Tenancy Act of 1950 in favor of S.K.Narsimha Chary, who was recognized as Protected Tenant by then. According to a Latin maxim, Nemo dotquod non- habet which means that no one can transfer a better title than he himself has, only the owner of the goods can pass the lawful ownership or title of goods to the buyer. In the instance case, also

TVK Shastri transferred a right already got exhausted in him. Hence, the transfer made by TVK Shastri and the resulting claims out of it are null and void."

13. Again the petitioner filed a suit before the Court of Additional Agent

to the Government and Project Officer, ITDA, Eturunagaram, in

Rc.No.LTR/G-Pet/420/2012-2018, seeking the relief of permanent

injunction in respect of agricultural land admeasuring Ac.30-00 guntas

in Sy.No.109/A situated in Pasaranagaram village of Govindaraopet

mandal, and the Court observed as under:

"It is further observed from the records more particularly from the field enquiry report dt.10-3-2023 that there is dispute about the possession over the suit schedule properties and the plaintiff Smt. P. Vasantha is not in physical possession and cultivation of the suit land."

14. In that view of the matter, the Court below after due enquiry has

categorically observed that the petitioner is not in physical possession of

the land and therefore cannot seek relief of permanent injunction. In that

view of the matter, there is no illegality in the impugned judgment and

the writ petition is liable to be dismissed at the admission stage.

15. Accordingly, the writ petition is dismissed at the admission stage.

No costs. Miscellaneous petitions, if any pending, shall stand closed.

_____________________________ Justice Nagesh Bheemapaka 18th June, 2024 ksm