The Joint Collector, R.R. District and others v. Syed Ahmed Hasan & Ors.

Order

11-04-2011 Between: # 1. The Joint Collector, R.R. District and others. ..Appellants And $ 1. Syed Ahmed Hasan and others. ..Respondents ! Counsel for the appellants : Mr. N.Sridhar Reddy,Spl.G.P. ^ Counsel for the respondents: Sri E.Manohar, Senior Counsel for P.Kamalakar. < GIST > HEAD NOTE ? Cases Referred: [1] (1997) 1 SCC 156 21993 Supp (1) 306 3 AIR 1977 SC 898 4 (2007) 6 SCC 517 THE HONOURABLE SRI JUSTICE A.GOPAL REDDY THE HONOURABLE SRI JUSTICE N.RAVI SHANKAR W.A.No.1770 of 2001 Date of Judgment: 11-04-2011 Between:

1. The Joint Collector, R.R. District and others. ..Appellants And

1. Syed Ahmed Hasan and others. ..Respondents The Court made the following Judgment THE HONOURABLE SRI JUSTICE A.GOPAL REDDY THE HONOURABLE SRI JUSTICE N.RAVI SHANKAR W.A.No.1770 of 2001 Oral Judgment: (Per Hon’ble Sri Justice A.Gopal Reddy)

1. This appeal under Clause 15 of the Letters Patent has been filed by the appellants questioning the order dated 09-10-2001 passed by the learned single Judge in W.P.No.16479 of 1998 allowing the writ petition filed challenging the orders of the 1st appellant in File No.B7/7637/97 dated 20-04-1998 and 2nd appellant in File No.L/169/97 dated 20-09-1997 in exercise of Certiorari jurisdiction to declare the writ petitioners as owners in respect of land measuring Ac.114.37 gts. situated in Sy.No.228 (new) corresponding old Sy.No.424 of Manchirevula Village, Rajendranagar Mandal, Rangareddy District

2. Petitioners invoked the Certiorari jurisdiction of this Court under Article 226 of the Constitution contending that their ancestors viz., Syed Mohd. Ismail and Col. Syed Mohd. Hasan sons of late Mohd. Ahmad Hassan purchased Inam land measuring 132 Bigahs (equivalent 99 acres) consisting of 3 different plots; one such plot is locally known as “Nagireddy Kunta” in Manchirevula unsurveyed being a non-khalasa village Hyderabad west block in 1322 Fasli (1912) in a Court auction in execution of money decree. Only the extent, boundaries and local name was described in respect of the land to be sold in Court auction. As land is Inam land, prior permission to sell the property was obtained from HEH the Nizam in 13 Safar 1331 Fasli. HEH the Nizam granted permission to sell the property in open auction in Memo No.236 dated 11th Farwardi, 1322 Fasli. In the said auction, the ancestors of petitioners purchased the property. Syed Mohd. Ismail died in the year 1953 and 1st petitioner is the son of late Syed Mohd. Ismail. Syed Mohd. Hasan died and his son Syed Vicarul Hasan also died in 1986; therefore, his son and daughter are

petitioners 2 and 3 in the writ petition.

3. In the Sethwar prepared for 1333 Fasli on completion of survey and settlement of Manchirevula village number for the lands sold in auction was recorded as “Sy.No.425” admeasuring 114.37 gts. locally known as “Nagireddy Kunta” and the names of Syed Mohd Ismail and Syed Mohd. Hassan—auction purchasers were recorded as Khatedars. Consequent to announcement of finalisation of the settlement of the village, Choufasla was prepared in 1344 Fasli and in column No.2 the names of Mohd. Ismail and another ancestor of the petitioners were shown as holders of the land. After abolition of Jagirs Survey and Settlement was revised, and in the said revision Sy.No.425 was revised as Sy.No.228 and in the settlement records it was wrongly described as Government land. The mistake was detected by the owners and they made an application to the District Collector, Hyderabad, who in turn by a letter bearing No.3495 dated 21-12-1950 directed the Jamabandi authorities to record Sy.No.228 as Inam not as Government poramboke. In compliance of the said order the Tahsildar issued proceedings dated 02-01-1951 directing the Patwari of Manchirevula village to record the name of the petitioners/purchasers as holders of land in Sy.No.228 along with other lands, instead showing it as Poramboke. Thereafter, in 1951 Faisal Patti it was endorsed that Sy.No.228 as Maktha but due to wrong description of the said land as Government Poramboke penalty was imposed. The said mistake was rectified in Faisal Patti for the year 1956- 57 pursuant to order of District Collector dated 21-12-1950. After the death of Syed Mohd. Hasan in the year 1959, succession proceedings were initiated before the R.D.O., Hyderabad in file No.A2/5266/59 and succession was granted in the name of his son—Syed Vicarul Hassan, the purchaser in interest, the father of petitioners 2 and 3 herein and since then the petitioners are owners of the said land.

4. The District Collector, Hyderabad in the appeal in file No.A1/21944 dated 09-07-1959 filed by the tenants clearly mentioned that Sy.No.228 of Macherevula is an Inam land belonging to Makthedars. In view of the order passed by the Collector, for Faisal Patti 1961-62 Sy.No.228 is included in the petitioners’ khata and Syed Vicarul Hassan was shown as Khatedar and in Pahani for the year 1931-32, Sy.No.425 was shown as ‘Bilmaktha’ and not a Government Poramboke and entries in Pahanis 1959 to 1970, the names of the petitioners’ ancestors were shown as pattadars and land-holders in respect of land admeasuring Ac.114.37 gts. Ignoring the above fact the Revenue Divisional Officer acting as Nazim Jamabandi directed the Tahsildar, West to check whether Sy.No.228 was Poramboke and to delete the names of lad holders, viz., Syed Vicarul Hassan and Syed Mohd. Ismail as Pattadars of the said land. As directed by Nazim Jamabandi, the Tahsildar deleted the names of the petitioners’ ancestors behind their back describing the land as Poramboke by giving a reference to the Faisal Patti for the year 1969-

70. On petitioners’ making application for correction of entries under Andhra Pradesh Rights in Land and Pattadar Pass Books Rules, 1989 Rules (for short “the Rules”) the Competent Authority in file No.B/7932/25 dated 24-06-1996 passed an order directing the rectification of the entries in Sy.No.228 for the year 1994-95 under Rule 15 (3) of the Rules and consequently corrected the pahanies showing the names of petitioners as Pattadars instead of showing as Government Poramboke. The said order has become final. Subsequently the petitioners applied in Form No.I for issuance of occupancy certificate under Section 4 of the A.P. (Telangana Area) Inams Abolition Act, 1955 before the RDO, which was dismissed. On dismissal of the same, the petitioners filed W.P.No.26196 of 1996. This Court set aside the order of the RDO and directed him to hold an enquiry in accordance with the Rules and pass appropriate orders. After enquiry, the RDO passed an order dated 20-09-1997 holding that classification of the land in question has been changing from time to time; some times it was recorded as Poramboke, Kharij Jama, Bilmaktha and Dastardan, unless the land in question is ascertained as Inam and records from 1950 and prior to it is corrected accordingly the application cannot be considered under the provisions of Inams Abolition Act, 1955 and advised the petitioners to approach proper forum for rectification of the records. As the RDO—2nd respondent instead of determining the nature of the land directed the petitioners to approach proper forum for rectification of the records, petitioners preferred an appeal against the said order before the Joint Collector—1st respondent under Section 24 of the Inams Abolition Act, 1955 to correct the entries in pahanies 1970 to 1993 by exercising revenue jurisdiction under A.P. (Telangana Area) Land Revenue Act, 1317 Fasli r/w the Rules 1989. Questioning the order passed by the Joint Collector as well as the RDO the writ petition impugned in the writ appeal has been filed for the reliefs aforementioned.

5. The 1st respondent filed a detailed counter affidavit on behalf of respondents 1 to 3 sworn on 08-06-2000 stating that the petitioners are trying to trace out their title through the document said to have been purchased by their ancestors viz., Syed Mohd. Ismail and Syed Mohd. Hassan s/o Mohd. Ahmed Hassan admeasuring 132 Bigahs consisting of three different plots, one of such plot is locally known as “Nagireddy Kunta” situated in Manchirevula village is not correct. Prior to survey, as per Wasool Bakui of 1344 Fasli of Manchirevula village the land bearing Sy.No.425 (old) admeasuring Ac.114.37 gts. corresponding to new Sy.No.228 is recorded as Chalkagutta. As per Wasool Baqui of 1344 Fasli, the field name was recorded as Nagireddy Kunta in the name of Moulvi Hyder Ali in column 62 in respect of land bearing (old) Sy.Nos.389, 387, 399, 394, 392 and 391 measuring Ac.2.07 gts., Ac.1.13 gts., Ac.1.13 gts., Ac.2.04 gts., Ac.1.13 gts. and Ac.2.31 gts. respectively corresponding to new Sy.Nos.480, 479, 477, 492, 486, 484 and 483 measuring Ac.1.00 gts., Ac.1.09 gts., Ac.1.13 gts., Ac.1.37 gts., Ac.2.04 gts., Ac.1.13 gts. and Ac.2.31 gts. respectively apart from this the said Khatader is also holding other lands in Manchirevula village. The translation document produced by the petitioners shows that 132 Bigahs consisting of three different plots one of such plot is locally known Nagireddy Kunta. FIRST PLOT: 60 Bigahs wet under Nala Vkkol and Tank East: Village Bairagiguda, West: Silver of village Manchirevula, South: Siver village Manchirevula Hill and Rocks, and Nagireddy Kunta included in the Inam. SECOND PLOT: 60 Bigahs wet under Nala Manchirevula including Banda Makha. East: Inam of Mohd. Ghouseed Rocks and Hill, West Locality of village Manchirevula to boundary Stone South: Government land North: Government land. THIRD PLOT: 12 Bigahs wet known as Gahreeb Gadda, East: Government land, West: Government land, South: Government land, North: Moosi river. On verification of the documents filed by the petitioners it was found that no survey number was mentioned in any where in the said document and they are already Pattadars in respect of the field names of Gahreeb Gadda, Nagireddy Kunta and other lands in Manchirevula village. On verification of the village map there is no such plots/fields existing with the above boundaries in the Manchirevula village. The appellants claim one compact block, whereas the document shows three plots with different boundaries. As per Survey Settlement Records i.e. Wasool Baqui of Manchirevula village Moulvi Syed Ismail Saheb s/o Mohd. Hussain Saheb was recorded as khatedar in respect of lands in Bilmaqtha Kharij Jama as specified in the table in the counter. The total extent as against the claim is near about equal, but in the Survey and Settlement Records and Revenue Records there is no such name as Nagireddy Kunta. There is an irrigation tank by name Nagireddy Kunta existing in the village map as well as in the Settlement and Revenue Records and also surrounding areas called as Nagireddy Kunta Kindi lands. As per Pahanies of the year 1997-98 the petitioners were shown as Pattadars in respect of lands of various extents as mentioned in the counter. The lands purchased by petitioners’ ancestors are different from the lands claimed by them. At no point of time the land bearing Sy.No.425 (old) admeasuring Ac.114.37 gts. corresponding to new Sy.No.228 is locally known as Nagireddy Kunta as per Wasool Baqui of 1344 Fasli (1934) and revenue records the said land was shown as Chalka Gutta and Poramboke (Sarkari) and not as Nagireddy Kunta. The land bearing Sy.Nos.477 to 487 and 492 of Manchirevula village are known as Nagireddy Kunta Kindi adjacent to this there is a Kunta by name Nagireddy Kunta is old Sy.No.395 measuring 8.24 gts. corresponding to new existing Sy.N.487. As per the revenue records, the land has been classified as Poramboke and in Khasra Pahani of 1954-55 the nature of the lands in Col.No.6 it was shown as Poramboke, in Col.No.8 it was shown as Sarkari and in Col.No.9 it was shown as Poramboke. Subsequently in Col.No.9 it was struck down with red ink and recorded as Poramboke. In Col.No.19 it was shown as Poramboke Sarkari and it was struck down with red ink and recorded as Sarkari and again it was struck down with red ink and written as Syed Ahmed Hyder s/o Ismail 0-8-0 and Syed Mohd. Hussain 0-8-0 (0.50 ps.), which clearly discloses that revenue records have been tampered. In the Shara of the VAO and MRI it is clearly shown that the suit land is Poramboke land. The names of Syed Ahmed Hyder s/o Ismail and Syed Mohd. Hussain have been added later in Khasra Pahani of 1954- 55; it was continued in subsequent revenue records without showing any assessment to the suit land. The said wrong entries were continued upto 1970 and succession was also granted basing on the wrong entries. Therefore, the petitioners cannot claim any right on the fraudulent entries. The Nazim Jamabandi Officer verified the old records including Sethwar and passed orders for deletion of the name of the Pattadars in the year 1969-70. In spite of the said order Patwari has written the name of the Pattadars in the Pahani of 1971-72. Again on detection of the same the Nazim Jamabandi Officer struck down the names of the Pattadars and recorded as Sarkari in the Pahani for the year 1971-72. Once the lands are recorded as Sarkari Poramboke the provisions of the Act 1971 shall not apply in view of Section 12 of the Act, 1971 and Rule 16 of the Rules

6. On petitioners filing reply, the respondents filed additional counter affidavit which has been dealt with by the learned Judge in the impugned order therefore, it is unnecessary to reproduce the same.

7. Sri N.Sridhar Reddy, learned Special Government Pleader attached to the office of the learned Advocate General raised a preliminary objection that in view of several disputed questions of fact involved in the writ petition, the learned single Judge ought to have relegated the parties to resolve the dispute in ordinary course of law with specific pleadings and evidence. The petitioners have applied for occupancy right certificate under the Act 1971 and on rejection of the same by the RDO, they filed writ petition and this Court while setting aside the order of the RDO directed to rehear the matter. The RDO after hearing the parties passed the orders on 20-09-1997 holding that clarification of the land in question was changing from time to time therefore, the petitioners were advised to approach the appropriate forum for rectification of the records. Even according to the petitioners the purchase made by their ancestors is in three separate plots but it is not compact block. The petitioner cannot claim the entire Sy.No.228 corresponding to old 425 admeasuring Ac.114.37gts. since ancestors purchased 132 Bigahs which is less than 100 acres that too in three separate blocks. Since the identity of the property is involved, the High Court under Article 226 of the Constitution cannot decide the said dispute in a summary manner. He has extensively taken us to the various orders as well as the documents on which reliance is placed by the learned single Judge and contended that even assuming that the request of the petitioners for grant of occupancy right certificate is rejected, at the most the matter should be remitted to the Competent Authority to conduct de novo enquiry but cannot declare the title of the petitioners. To buttress his submissions reliance is placed on the following Judgments:

1. STATE OF M.P. v. M.V. VYAVSAYA & CO.[1] 2 .STATE OF RAJASTHAN v.BHAWANI SINGH[2]

3. JAI SINGH, APPELLANT v. UNION OF INDIA[3]

4. MORAN M. BASELIOS MARTHOMA MATHEWS II v. STATE OF KERALA[4]

8. Sri E.Manohar, learned senior counsel appearing for the respondents while sustaining the order under appeal contends that if it is an ordinary action writ petition no doubt is not maintainable but once writ petition is filed challenging the statutory order passed by the quasi judicial authority the High Court under Article 226 of the Constitution not only can correct the order but can pass appropriate order. Once the petitioners’ names are included in Pattadar column till 1969-70 and also Pahani of 1971-72 the same cannot be deleted, but for the sake of argument, it was stated that as per the revenue records the property is at somewhere else by the Collector. Once purchase of the property by the ancestors of the petitioners is not in dispute, there cannot be any dispute with regard to identity of the property and succession certificate issued in that regard. The learned single Judge rightly gone into the merits of the case and passed the impugned order which do not require any interference.

9. Before adverting to the rival submissions, it has to be noticed that the petitioners filed an application in Form I before the Inams Tribunal and RDO, Chevella for issuing occupancy certificate in respect of Ac.114.37 gts. in Sy.No.228 of Manchirevula Village along with the statement how they acquired the property. On rejection of the request in Memo Ref. No.L/3731/96, dated 19-11-1996, the petitioners W.P.No.26196 of 1996 for conducting de novo enquiry. In the enquiry the statements of the 3rd petitioner and her husband were recorded wherein they have stated that Mohd. Ismail and Col. Mohd. Hasan were the owners of the land being the sons of late Syed Mohd. Hassan who purchased Bilmaktha lands in an auction in the year 1335 Fasli for a consideration of Rs.30,300/- and the lands purchased in auction comprised several survey numbers consisting of Ac.188.15 gts. one such Sy.No.228 consists of Ac.114.37 gts. The Settlement Authority prepared Sethwar recording first time in 1333 Fasli assigning Sy.No.425 to the said land and classified it as Bilmaktha lands recording the names of Syed Mohd. Ismail and Col. Syed Mohd. Hasan as owners. In the Settlement of the year 1944 the land has been described as ‘Poramboke’. On appeal being filed for rectification of the entries in the settlement of 1944, the Collector after conducting enquiry passed an order dated 01-12-1950 declaring the said land as ‘Bilmaktha’ and in the Faisal Patti proceedings of 1955 the same was rectified. In the year 1963 the R.D.O. granted succession of late Col. Syed Mohd. Hassan in favour of his son—Syed Vicarul Hassan in File No.A2/3266/59. The names of the petitioners were shown till 1969-70. In the Faisal Patti 1970-71 the Sy.No.228 is shown as ‘Poramboke’ on the basis of Sethwar of 1944; whereas M.R.O. filed an affidavit stating that Sy.No.425 (old) corresponding to Sy.No.228 (new) measuring Ac.114.37 gts. is a ‘Government land’. As per the revenue records for the years 1924, 1929, 1930, 1936, 1334 Fasli (1925), 1343 Fasli (1934) and 1345 Fasli (1936) the land has been classified as ‘Poramboke’ and the name of Syed Ismail is recoded in Kathadar column but in the Pahani for the year 1958-59 the names of two persons are recorded as Pattadars against new Sy.No.228; whereas Khasra Pahani for the year 1954-55 and first volume of Pahani 1958-59 in which the entry of Sy.No.228 is made “are not available as such”, how the entries of two persons made in Pattadar column is not known as there is no documentary evidence with regard to change in Pattadar column. The said entries continued upto 1969-70. During the Jamabandi for the year 1969-70 it was detected that the entries are made wrongly. After verifying the Sethwar the RDO founded off the names of two persons in the Pahani 1970-71 and recorded it as Sarkari. From 1958-59 records the land was recorded as Dasthagardan upto 1969-70. The R.D.O. after considering the necessary documents rejected the claim advising the parties to approach the forum for rectification of the records. The said order has become final.

10. On rejection of the claim for issuance of occupancy right certificate by the Inams Tribunal, the writ petitioners filed an application before the Joint Collector—1st respondent under Section 166-B of A.P. (Telangana Area) Land Revenue Act, 1317 Fasli for rectification of the errors committed by Najim-e Jamabandi for the year 1969-70 in respect of Sy.No.228 detailing how they acquired the title and stating that their ancestors have constructed “Ashrookhana Qadeem-Cohe-e-Qaim” on the top of the hillock on the southern side of the land bearing Sy.No.228 in an area of Ac.24.37 gts. and they are regularly performing rituals of Ashroo Khans. To substantiate their plea they have filed the following documents.

1. Statement of permission for alienation of land.

2. Memo No.236 Misc., Inam, dated 5th Rabiul Awal 1331-H

3. No.16 dt. 13th Safar, 1331-H.

4. Sethwar copy

5. Choufasla 1345F

6. Pahani 1929 and 1342

7. Pahani 1958-59

8. Faisal Patti 1962

9. Pahani 1961, 1963, 1964, 1965, 1966 to 1970

10. Copy of Takhta Virasat (Succession)

11. C ommissioner Survey Settlement and Land Records Ref. No.A2/583/97, dated 04-12-1997

12. R.D.O. Chevella division order No.L/169/97, dated 20-09-1997 13. M.R.O. Rajendranagar Proceedings No.B/7932/96, dated 24-06-

11. The statement of permission for alienation of Inam land, which was marked as Ex.A4 before the Tribunal, the quantum of land purchased is 132 Bigahs (equivalent to 99 acres) with trees, hillock and tank, which reads as follows:

12. The Joint Collector framed a point “whether the land alleged to be purchased under Court order corresponds with Sy.No.228 or not”, and after taking into consideration the permission obtained from HEH Nizam vide Memo No.236 dated 11th Farwadi 1322 Fasli under Ex.A4, as referred to above, is confined to only 132 Bigahs with three separate blocks with boundaries as mentioned above. Whereas the appellants claim one compact block in Sy.No.228, it is contrary to the permission which pertains to three separate blocks in Manchirevula village. The documents filed do not disclose anything about the land claimed by the petitioners and no reference of Sy.No.228 (new) or Sy.No.425 (old) is found in the memo. In the copy of Takhta Virasat (succession) marked as Ex.A7, no reference of Sy.No.228 (new) old 425 is found. The letter of Commissioner of Survey and Settlement and Land Records dated 04-12-1997 (Ex.A11) issued to Zahera Mahdi w/o S.T.Mahdi stating that Muntakhab No.1 of 1297 Fasli issued in the name of Smt.Raza Begum is in torn condition; therefore certified copy applied for by the applicants cannot be granted. The same also do not disclose old and new number numbers. In the Faisal Patti 1950 and 1955 the land has been declared as Bilmaktha which means Izara villages which were granted on Qqwl in the past for the specific purposes of populating deserved villages and to develop cultivation. It is not exempted from assessing the land revenue. Exemption is only for Government lands; whereas several Sy.Nos.116, 117, 122, 124, 126, 127, 129 to 132, 139, 218, 222, 225, 229 and 273 are recorded as Bilmaktha for which land revenue was assessed which belongs to Syed Mohd. Ismail, which is evident from the Pahani for the year 1345 Fasli. The entire extent of Ac.114.37 gts. in Sy.No.425 old/228 new is shown as Pote Kharab for which land revenue cannot be assessed. The authenticity of Sethwar produced is not known whereas Survey Settlement Department prepares basic land records for each bandobust with clear survey numbers. Wasool Baqul is the record that correlates old and new survey numbers, which shows that old survey number 425 an extent of Ac.114.37 gts. with the new survey number 228 and Khatedar name is shown as Poramboke corresponding to 1930 and also corroborates the same. The Pahanies of 1929 and 1342 Fasli show there is a shera written by the then Patwari that the said land bearing No.425 is Poramboke and fallow; in the year 1954-55 Khasra Pahani land bearing Sy.No.228 measuring Ac.114.37 gts. recorded as Poramboke Sarkari in column of Pattedar. The land revenue receipts for the year 1955-56 and 1969-70 filed by the petitioners are in the name of third parties and who paid revenue according to cultivation differs from 3 acres 120 acres and the writ petitioners are no where concerned with the land in Sy.No.228 which is a Government land and rejected the application.

13. The Statement of Permission for alienation of Inam land on which the writ petitioners relied upon to claim land in Sy.No.228 is admittedly not a compact block and the land purchased by them is 132 Bigahs with trees, hillock and tank in three separate blocks. The Khasra Pahani initially prepared for the year 1954-55 shows that it is a Sarkari land. Basing upon the orders of the Collector Vide No.3495, dated 02-12- 1950, which has not been produced by the petitioners, the entries were rounded off. Subsequently Faisal Patti and Jamabandhi Sethwar were amended on the ground that the land was not Poramboke subsequent to the preparation of Khasra. No credence can be given to the amendment carried out subsequently in the Khasra Pahani for the year 1954-55.

14. It is settled proposition of law Khasra is a record of right and entries therein shall be presumed to be correct unless the contrary is shown. (See SHIKHARCHAND JAIN v. DIGAMBER JAIN PRABAND KARINI SABHA