IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY EIGHTH DAY OF APRIL TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos.34203 and 34206 of 2011 BETWEEN T. Santosh Kumar and another.
... PETITIONERS AND The Joint Collector, Mahabubnagar and others.
...RESPONDENTS Counsel for the Petitioners: MR. V. HARIHARAN For MR. D. SUDARSHAN REDDY Counsel for the Respondents: GP FOR REVENUE MR. B. VENKAT RAMA RAO – R3 The Court made the following:
COMMON ORDER:
The writ petitions are directed against the common order dated 02.07.2011 in case No.D1/28/2005 (File No.D1/6814/2005) and case No.D1/14/2009 (File No.D1/1715/2009) passed by the Joint Collector, Mahabubnagar, first respondent herein, allowing separate revision petitions filed by the third respondent in each of the writ petitions.
2. The relevant facts in these writ petitions are required to be stated in detail in order to appreciate the issue involved.
(a) Petitioner No.1 is the son of petitioner No.2. The vendor of the petitioners viz. Late G. Raghuveer Rao, was granted occupancy certificate under the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 (for short ‘Inams Act’) in proceedings No.K/4439/87 dated 19.12.1987 covering Sy.Nos.727 (Ac.7.15 guntas); 731 (Ac.16.09 guntas) and 734 (Ac.8.21 guntas) guntas at Keshampet Village and Mandal, Mahabubnagar. It appears that similar certificate was also granted for Sy.No.732. However, that certificate is not part of the record. The third respondent in WP.No.34203 of 2013, hereinafter referred to as G. Rama Rao, who claims to be the brother of the said Raghuveer Rao, questioned the said occupancy certificate by filing an appeal under Section 24 of the Inams Act. The said appeal in file No.B2/2/1988 was, however, dismissed by the District Collector by order dated 10.11.1988. The said G. Rama Rao had since preferred WP.No.3901 of 1989, before this Court, which was also dismissed by order of this Court dated 04.02.1997 and thereby, the occupancy certificate granted in favour of the vendor of the petitioners with respect to all the lands stood confirmed.
(b) While the said order had become final, petitioner No.1 purchased the aforesaid land admeasuring Ac.35.11 guntas in Sy.Nos.727, 731, 732 and 734 from Raghuveer Rao under a registered Agreement of Sale cum General Power of Attorney, being document No.2928/99 dated 27.10.1999 and in the said agreement it was recited that the entire consideration of Rs.2,66,836/- was paid by the purchaser and received by the vendor and the possession of the schedule property was also handed over to him, in addition to constituting the said purchaser as lawful attorney of the vendor with full powers to deal with the property. It appears that based on the said agreement of sale, the Mandal Revenue Officer recorded the names of the petitioners under Section 5(3) of the Andhra Pradesh Rights in Land and Pattadar Passbooks Act, 1971 (for short ‘ROR Act’) vide orders dated 09.09.2000 in File No.B/2109/2000. Later, the vendor of the petitioners passed away leaving behind his widow and children. The said widow is the third respondent in WP.No.34206 of 2013 and for the sake of convenience she is referred to hereinafter by her name viz. G. Malathi.
(c) Meanwhile, Rama Rao, his brother and three sons of his another brother filed a fresh application for grant of occupancy certificate and the Revenue Divisional Officer in file No.K/2282/2001 by order dated 16.03.2005 granted occupancy certificate in favour of Rama Rao and four others with respect to different extents in Sy.Nos.727 (Ac.7.15 guntas) and 732 (Ac.3.06 guntas) by specifying the relevant extent of each sharer in the aforesaid land. The first petitioner herein, on coming to know of the said order, questioned the said order by filing an appeal before the Joint Collector, Mahabubnagar in Inam file No.F2/16/2006 which is stated to be still pending.
(d) By the aforesaid order dated 16.03.2005, the RDO also granted shares to two other occupants’ viz. Bala Saheb and Karim Saheb. The said order was also subject matter of an appeal, being No.F2/9/2005, filed by the sons of Bala Saheb and another. The said appeal is stated to have been disposed of by the Joint collector under order dated 23.07.2005 against which the said Bala Saheb filed WP.No.2228 of 2006, before this Court, which is stated to be pending. While that was the position with regard to the disputes relating to the occupancy certificate among the parties, Smt. G. Malathi filed an appeal before the MRO seeking correction of entries in the ROR on the ground that the agreement holders (petitioners herein) from her husband late G. Raghuveer Rao wrongly got their names recorded in the ROR without notice to her. By order dated 02.01.2007 in File No.B/500/2006, the MRO rejected the said request of G. Malathi on the ground that the names of the petitioners were recorded more than six years ago under orders of the then MRO dated 09.09.2000 in File No.B/2109/2000 and as such, the request for correction cannot be considered after more than six years. Aggrieved thereby, the said G. Malathi preferred WP.No.6331 of 2007, which was, however, disposed of on 10.02.2009 leaving it open to G. Malathi to approach the appellate or revisional authority for appropriate relief. However, instead of filing an appeal, G. Malathi filed a revision petition before the first respondent, which was allowed under one of the common orders impugned herein. Mr. G. Rama Rao also preferred a separate revision before the first respondent aggrieved by the entries recorded in ROR. The said revision petition was allowed under one of the common orders impugned herein.
3. I have heard Mr. V. Hariharan, learned counsel for the petitioners in both the writ petitions and Mr. B. Venkat Rama Rao, learned counsel for the contesting third respondent in both the writ petitions apart from the learned Government Pleader representing respondents 1 and 2.
4. While the scope of the present writ petitions is evidently the common order of the Joint Collector, which is impugned, passed under the ROR Act, for the moment the facts and proceedings arising out of the Inams Act do not directly arise for consideration herein.
Hence, I would refer to the said proceedings only wherever it is necessary.
5. With respect to the chronology and the facts, which are briefly mentioned above, there is no controversy between the parties that the petitioners’ vendor was granted occupancy certificate with respect to Ac.32.05 guntas with respect to Sy.Nos.727, 731 and 734, as mentioned above. There is, however, a controversy with regard to Sy.No.732, which the third respondent disputes. However, it cannot be denied that the said certificate granted in favour of Raghuveer Rao was confirmed in appeal, filed by Rama Rao, by the order of the District Collector dated 10.11.1998 and was further confirmed by a Division Bench of this Court while dismissing WP.No.3901 of 1989 dated 04.02.1997, which has become final and thereby, as held by this Court, the occupancy certificate granted to the vendor of the petitioners with respect to Sy.Nos.727, 731 and 734 became final.
It is also well settled that grant of occupancy certificate under the Inams Act amounts to grant and recognition of title of the holder with respect to the land covered by the said certificate and based on such certificate, the holder of the occupancy certificate would be entitled to have his name recorded in the revenue record, as pattadar of the land so covered by the certificate.
6. The controversy, however, arises in view of the registered agreement of sale cum GPA executed by late Raghuveer Rao in favour of the first petitioner wherein it is recited that Raghuveer Rao received full consideration and delivered possession and also authorized the purchaser with all powers as an owner. It is also not in dispute that the names of the petitioners were recorded under the ROR Act by order of the MRO in File No.B/2109/2000 dated 09.09.2000.
The present revision petitions, filed by Rama Rao and Malathi before the first respondent, therefore, related to the legality of the said order of the MRO dated 09.09.2000.
7. Learned counsel for the petitioners, therefore, question the said impugned order, firstly, on the ground that without preferring an appeal instead revisions petitions could not have been filed and there is no justification for the Joint Collector to invoke the revisional powers after such length of time of passing of the initial order dated 09.09.2000. Learned counsel also pointed out that apart from these revisions, the appeal field by the petitioners, against the grant of occupancy certificate in favour of Rama Rao, before Joint Collector, who, apart from being the revisional authority under Section 9 of the ROR Act, is also the appellate authority under the Inams Act, was kept pending without disposal whereas the revision petitions were disposed of. Learned counsel submits that the propriety required that the Joint Collector decided all the matters together, as the issues are interconnected and one has a bearing over the other. Learned counsel also points out that while appreciating the contentions of the respondents, the provisions under the ROR Act are clearly ignored. According to him, Section 5 of the ROR Act contemplated updating of ROR on receipt of intimation of the fact of acquisition of any right to land, as contemplated under Section 4 of the ROR Act. In other words, the learned counsel submits that such right need not necessarily be as that of an owner under a registered sale deed, but includes any other right, by which the right to land is acquired, is sufficient for the purpose of seeking amendment of record of rights.
8. In support of his contentions, Mr. Hariharan, placed reliance upon a decision of this Court in BASIREDDY RUKMINAMMA v. THE JOINT
[1]
COLLECTOR, KADAPA wherein it is held that that as per the scheme of ROR Act, which provides hierarchy of appeal and revision against order passed by the primary authority and bypassing the appeal and invoking revisional jurisdiction directly was not approved.
A decision of the Larger Bench of the Punjab and Haryana High Court in
[2] MUNSHA SINGH DHAMAN SINGH v. THE STATE OF PUNJAB is
relied upon for the proposition of highlighting the concept of ownership under law and as the said analysis is very comprehensive, the following extract therefrom is reproduced hereunder:
“(34) Austin's classical description of ownership, as "a right conferred over a determinate thing, indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration, Jurisprudence by Austin, Volume II, page 477) is too sweeping and theoretical to serve any practical purpose. Under the present day exigencies a person is still deemed an owner, although his rights in matter of user disposition or duration may be attenuated by statute, custom or contract.
(35) Though less general than the Austinian concept, the definition as given by Ahrens suffers from want of perspicuity and precision. According to him, La prorate EST le pouvoir juridique, plein et entier d' une personne sur une chosen corporelle--ownership is the full and complete juridical power of a person over a corporeal object ...... Le pouvoir de droit d'une personne sur une chose d' apres tous les buts ratoonnels d'utilite' possible inherents as a nature,--The rightful power of a person over a thing for all possible rational ends inherent in the nature of the thing (Droit Natural, Volume II, page 143).
(36) According to French Code, ownership is defined as--
"Le droit de jouir et dispose Des chooses de la manure la plus absolute, pour qu'on n'on fasse pas un usage prohibe par les lois ou par les reglements". (Art. 436) (The right to enjoy and dispose of the things in the most absolute manner provided that one does not do what is prohibited by usage, law or the rules):
(37) A really satisfactory and comprehensive definition of the right of ownership, equally exhaustive and exclusive, has not been attempted so far, because of its obvious difficulties in consequence of changing situations varying with altered circumstances. But the concept of ownership presents no difficulty of general comprehension. The well- known and widely understood rights which are exercisable by an owner are--
1. Jus Utendi: the right to the use of a thing;
2. Jus possidendi: the right to possess a thing;
3. Jus abutendi: the right to consume or destroy a thing;
4. Jus disponendi vel transferendi: the right to dispose of a thing or to transfer it as by sale, gift, exchange etc.;
5. Jus sibi habendi: the right to hold a thing for oneself;
6. Jus alteri non habendi or jus prohibendi: the right to exclude others from its use.
(38) Some of those component rights may be overlapping and it may also be possible to add to them. In essence the rights of ownership may be conveniently arranged under three head, Possession, Enjoyment and Disposition.
(39) Sir Paul Vinogradoff in his book, Outlines of Historical Jurisprudence, Volume II, page 197, said--
"The essence of the law of property is the attribution to certain persons of exclusive rights of disposal over certain things".
(40) Same idea was expressed by Cairns (Law and the Social Sciences, page 60) when he said--
"The property right is essentially a guarantee of the exclusion of other persons from the use or handling of the thing".
(41) In a recent decision of the Supreme Court in Amar Singh v. Custodian Evacuee Property, Punjab : 1957 SCR 801: (S) AIR 1957 SC 599) Jagannadhadas J. at page 833 (of SCR): (at p. 611 of AIR) said, "Property to fall within the scope of Art. 19(i)(f) must be capable of being the subject-matter of 'acquisition and disposal".
(42) The lands of the right-holders in this case do not admit of any right of 'acquisition and disposal'. The word "property" contemplates a bundle of rights, and it is indisputable that a person dos not cease to be the owner if he is deprived of one or more of these rights, so long as he is left in the enjoyment of the essential rights.”
9. Mr. B. Venkat Rama Rao, learned counsel for the third respondent in these writ petitions, questioned the legality of the order of the MRO in granting mutation in favour of the petitioners on the basis of a mere agreement of sale. Learned counsel placed strong reliance upon a judgment of the Supreme Court in SURAJ LAMP AND INDUSTRIES LTD. v. STATE OF HARYANA[3]. Learned counsel also questioned the order of the MRO granting mutation without following the procedure prescribed under Section 5 read with Rule 19 and in support of that, the learned counsel placed reliance upon a Full Bench decision of this Court in C. PANDURANGAM v. MRO, SERILINGAMPALLY MANDAL, R.R. DIST.[4], particularly, paras 9 to 11 thereof. Reliance is also placed upon a decision of this Court in KONKANA RAVINDER GOUD v. BHAVANARISHI CO-OPERATIVE HOUSE BUILDING SOCIETY[5] particularly, para 54 thereof, which is extracted hereunder:
“54. The question whether agreement of sale can be treated as alienation or transfer within the scope and meaning of Section 5-A of the Act will have to be decided keeping in view the purpose with which this provision was inserted in the main Act enabling the Mandal Revenue Officer to pass appropriate orders for regularization of alienations or other transfers of land not effected by registered documents in accordance with the provisions of the Registration Act, 1908. The Society filed applications seeking regularisation of agreements of sale, treating it to be as transfer of the land by the vendors. On the face of it, the two documents are nothing but agreements of sale by which the vendors had agreed to transfer and convey their land to the Society. The same cannot be termed as contract of sale but only agreements by which vendors had agreed to transfer and convey their title in favour of the Society on fulfilment of certain conditions; therefore, the same cannot be termed as a complete act of sale. The word "transfer" has not been defined under the Act. Therefore, the question before us is as to the meaning to be given to the word "transfer" - whether it is a dictionary meaning or meaning as is ordinarily understood in the general sense of the term as defined in the law governing transfers of immovable properties i.e., Transfer of Property Act. Once the Legislature in its wisdom has neither defined the word "transfer" in any of the definitions of the Act nor has clarified it, we are of the view that in such a situation one must look into the primary object of the provision, which in this case is only regularisation of the transfer of the land. There was already a provision in the Act as regards transfers effected by registered documents and to give effect to such transfers. Transfers, not evidenced by any registered document, would not confer any right, title or interest on the transferee even as per Section 54 of the Transfer of Property Act read with Section 17 of the Registration Act. The sole purpose of regularisation of such transfers, effected otherwise than by registered document is to keep the record of right update. Only on the Mandal Revenue Officer satisfying that the transfer or alienation has been effected by an unregistered document he has authority to call upon the transferee to pay the requisite registration and stamp duty after further ensuring that such transfer or alienation is not in contravention of any provisions of law, he is obliged to issue necessary certificate to the alienee or transferee. Such certificate notwithstanding anything contained in Registration Act, 1908 has the effect of "transfer" as evidence of such alienation or transfer as against the alienor or transferor or any person claiming interest under him.
Lastly, the learned counsel substantiated that revision filed under Section 9 of the ROR Act is maintainable even without preferring an appeal and in support of that proposition placed reliance upon a decision of this
[6]
Court in KOLA SATYA RAO v. JOINT COLLECTOR and paras 14 to 16 thereof are extracted hereunder:
“14. While ordinarily an aggrieved person shall not be allowed to bypass the appeal remedy and is certainly bound to observe the hierarchical discipline in availing the remedies as are provided by the Statutes, this principle, in my considered opinion, is not inviolable. While construing the expression 'revisional', the Supreme Court in Rafat Ali v. Sugni Bai (1991) 1 SCC 133 held that "it means power of supervision". In Hari Shankar v. Rao Girdhari Lal Chowdhury AIR 1963 SC 698, the Supreme Court, in the context of considering the scope of power of the High Court under Section 115 CPC, observed that power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law.
15. Generally, the power of revision is conferred on a superior authority, which is vested with the supervisory jurisdiction to keep the officers subordinate to it within their bounds and exercise jurisdiction vested in them properly while discharging their quasi judicial functions. This legislative intent is quite apparent in Section 9 of the Act, which empowered the Collector to examine the decision taken or order passed by any of the three officers named therein. While the scope of interference in appeal is wider, the liberty available to the revisional authority to entertain a revision is greater. Provisions, which confer these revisional powers on superior authorities, are normally couched in standard terms as Section 9 of the Act in the instant case is framed and they are generally intended to remedy the injustice caused on account of an irregular, illegal or improper decisions taken or orders passed by the subordinate authorities.
16. Where, therefore, in a given case, the revisional authority is satisfied that it was not feasible or practicable for the aggrieved party to file an appeal or that the subordinate authority has passed an order, which is ex-facie contrary to the procedure prescribed under the Act or in violation of the principles of natural justice, it can exercise its revisional jurisdiction to step in and correct such procedural illegality or impropriety. If the facts of the case justify, an aggrieved party can be allowed to bypass the appellate remedy and seek intervention of the revisional authority. That such a power is consecrated in the revisional authority is clearly evident from the language of Section 9, which not only confers suo muto revisional power in the authority, but also empowers the authority to entertain an application from the aggrieved party and to call for and examine the record of any of his subordinate authorities, viz., Recording Authority, Mandal Revenue Officer or Revenue Divisional Officer, exercising powers under Sections 3, 5, 5A or 5B of the Act and modify, annul or reverse or remit for reconsideration any order passed by any of those authorities, where such revisional authority is satisfied that the order passed or decision taken was either irregular or incorrect or illegal or improper. This provision does not impose any pre-condition that the revisional authority shall not exercise his powers until the aggrieved party exhausts its appellate remedy.”
10. The word ‘owner’ used under Section 2(6)(a) of the ROR act was also subject matter of a decision of this Court in A. RANI v. JOINT COLLECTOR, CHITTOOR[7] wherein it was held at para 6 as follows:
“6. The word 'owner' is defined under Section 2(6)(a) of the Act. It is an inclusive definition, taking in its fold, any person who has permanent and heritable rights of possession of the land, which can be alienated, and includes the holder of a patta issued to him as a landless poor person. The emphasis is on the rights that are already possessed by a person, and not those that are to be determined afresh. The words 'who has permanent and heritable rights of possession' employed in this definition assume significance. They suggest that the rights indicated therein must have already been inexistence …”
11. In the light of the rival contentions, therefore, the following questions require adjudication:
1. Whether the revision petitions, filed by the respective third respondent in each of these writ petitions without availing the remedy of appeal, were sustainable and whether the revisional authority can entertain the revisions after long lapse of time after the order of the Mandal Revenue Officer dated 09.09.2000?
2. Whether the mutation on the basis of a registered agreement of sale cum GPA, as claimed by the petitioners, can be entertained by the Mandal Revenue Offcier for the purpose of effecting mutation?
QUESTION No.1:
12. So far as the first respondent is concerned, Section 9 of the ROR Act under which the Joint Collector exercised revisional power provides as follows:
“9. Revision - The Collector may either suo motu or on an application made to him, call for and examine the record of any Recording Authority, Mandal Revenue Officer or Revenue Divisional Officer under Sections 3, 5, 5-A or 5-B, in respect of any record of rights prepared or maintained to satisfy himself as to the regularity, correctness, legality or propriety of any decision taken, order passed or proceedings made in respect thereof and if it appears to the Collector that any such decision, order or proceedings should be modified, annulled or reversed or remitted for re-consideration, he may pass orders accordingly:
Provided that no such order adversely affecting any person shall be passed under this section unless he had an opportunity of making a representation.”
It would be immediately noticed that a revision lies either suo motu or on an application to record of any such right under the ROR Act and revisional authority would be entitled to go into the question of regularity, correctness, legality and propriety of such order and is also empowered to modify or reverse or remit for reconsideration any such order. The power is neither restricted to nor is limited only against the appellate order. The said provision, therefore, expressly provides that any decision taken or any record prepared by the recording authority, the MRO or the RDO, either under Sections 3, 5, 5-A or 5-B can be examined by the revisional authority to satisfy itself of the correctness, legality, regularity and propriety of such decision or order. I am, therefore, unable to see any substance in the contention of the learned counsel for the petitioners that the third respondent could not have invoked the revisional jurisdiction of the Joint Collector directly. Further, the order of this Court in WP.No.6331 of 2007 dated 10.02.2009 left it open for the third respondent to prefer the appeal or revision and consequently, the revision was preferred. Moreover, the said issue is no more res integra as this Court has specifically gone into the said aspect in KOLA SATYA RAO’s case (6 supra) and the relevant paras thereof are already extracted above. I record my respectful agreement with the said view.
Question No.1 is answered against the petitioners.
QUESTION No.2:
13. It has already been noticed in the para 2(b) above and according to the learned counsel for the petitioners, the agreement of sale cum GPA equates petitioners as owners and mutation in their favour was justified. There are two decisions of this Court, which have seemingly taken different views as to whether mutation can be affected on the basis of an agreement of sale. It has already been held by the Supreme Court in SURAJ LAMP AND INDUSTRIES LTD.’s case (3 supra) while considering the provisions of the Transfer of Property Act and it is well settled that an agreement of sale does not confer any title. In KONKANA RAVINDER GOUD’s case (5 supra) their Lordships held that under the ROR Act the word transfer is used but Section 5-A of the ROR Act is not defined. Their Lordships, therefore, considered the meaning of the word transfer as is understood in the legal sense in terms of the Transfer of Property Act and in that view, held that the agreement of sale does not amount to transfer and consequently, the regularization cannot be made under Section 5-A of the ROR Act.
14. In another Division Bench decision of this Court in
[8]
K. SEETHARAMA REDDY v. HASSAN ALI KHAN the contention urged was that a completed transaction of sale under agreement except for compliance of procedure in typing the sale deed on a proper non-judicial stamp paper, the transfer is completed and such transaction can be regularized under Section 5-A of the ROR Act.
While considering the said contention, the Division Bench held as follows:
“22.The learned Senior Counsel Mr. Challa Seetharamaiah further pointed out the provisions contained in Section
5-A of the said Act. It is said that such transaction can be regularised, if the other procedure in typing the sale deed on a proper non-judicial stamp, passing of the entire consideration and transferring the possession is completed except the registration of the documents,
but not any other form of an agreement of sale. Only the formalities of registration remains to be completed, such transactions can be regularised under Section 5-A of the said Act. Section 5-A of the said Act is very clear on this point. But in the present case, nothing that sort of transaction was completed between the parties.
23. We have gone through Section 5-A of the said Act carefully and we are of the considered view that the agreement of sale simplicitor is not enough for regularization under Section 5-A of the said Act.”
15. Thus, while the agreements of sale before the Division in KONKANA RAVINDER GOUD’s case (5 supra) and K. SEETHARAMA REDDY’s case (8 supra) were of different categories viz. in the former case it was an agreement of sale simplicitor whereas in the later case, except the registration, the transaction was otherwise complete.
On this distinguishing feature, therefore, it cannot be said that any different opinion is expressed in the decision of the later Division Bench. Further, whether such distinguishing feature exists in a given case will have to be examined in each case separately.
16. In order to answer the issue in the case on hand, it is necessary to notice the following provisions:
Transfer of Property Act:
5. “Transfer of property” defined - "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons and "to transfer property" is to perform such act.
In this section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.
ROR Act:
“2(6-a) “Owner” means a person who has permanent and heritable rights of possession on the land, which can be alienated and includes the holder of a patta issued to him as a landless poor person.
2 ( 7 ) “Pattadar” includes every person who holds land directly under the Government under a patta whose name is registered in the land revenue accounts of the Government as pattadar and who is liable to pay land revenue.”
17. Keeping in view the definitions, particularly, under the ROR Act, as above, a person having a right to possession including an assignee from the Government would be entitled to be treated as an owner for the purpose of the ROR Act. The said definition of owner also shows that there may not be a transfer, as contemplated under the Transfer of Property Act, but if the transfer is completed otherwise than except for registration and keeping in view the definition of pattadar, which is an inclusive definition, in my view, such person would be entitled to invoke the provisions of Section 5-A of the ROR Act. The definition of owner, as above, significantly does not refer to the definition as contemplated under the Transfer of Property Act and the emphasis is on right to possession including right to alienate. In a given case, whether the agreement of sale cum GPA confers the said right so as to qualify within the definition of owner would, however, depend upon the appreciation of such documents. Hence, suffice it to find that for the purpose of ROR Act, the definition of owner may also include a person not holding a registered document in his favour but otherwise entitled to all rights to possession and alienation of the land by virtue of the completed transaction of sale except for the registration thereof.
18. Keeping in view the aforesaid legal provisions and the facts and circumstances of the present case where mutation on the basis of an agreement of sale cum GPA is claimed, it will have to be examined as to whether the petitioners satisfy that their agreement is a completed transaction of sale except for registration. It is significant that the aforesaid contention, as raised by the contesting respondents, was not raised before the Joint Collector and the common order impugned was passed only on finding procedural irregularity of not serving the notice to legal heirs of Late Raghuveer Rao, but there is no adjudication on the agreement of sale cum GPA in the case on hand. The Joint Collector shall, therefore, examine the matter in the light of the observations hereinabove and decide the revision petitions afresh.
So far as the procedural irregularity, on which the Joint Collector has allowed the revisions, is concerned, in my view, the said finding will not be sustainable if the petitioners establish the agreement of sale cum GPA form the Late Raghuveer Rao, in which case, the successors from him would also be bound and cannot claim to invalidate the order granting mutation in favour of the agreement holder only on the ground that they are not given notice.
Question No.2, therefore, is answered accordingly.
19. It is not in dispute that the appeal filed by the petitioners against grant of occupancy certificate dated 16.03.2005 in File No.K/2282/2001 in favour of the third respondent is also pending with the Joint Collector. Since the adjudication of the said appeal has a necessary bearing on the issue under the ROR Act and since the impugned revisions as well as the said appeal is pending with the first respondent only, the passing of impugned order without disposing of the said appeal filed by the petitioners has resulted in some incongruity. I am, therefore, of the view that the revision petitions impugned as well as the appeal of the petitioners, are required to be heard and disposed of as all the matters are between the same parties and relating to the same subject matter.
20. The impugned orders are accordingly set aside and both the revisions shall stand restored to the file of the Joint Collector/first respondent, which shall be disposed of in the light of the observations made hereinabove along with the inam appeal filed by the petitioners.
The writ petitions are accordingly allowed. As a sequel, miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J April 28, 2014 DSK
[1] 2013 (6) ALD 678
[2] AIR 1960 P&H 317
[3] AIR 2011 SCW 6385
[4] 2007 (6) ALD 348 (FB)
[5] 2003 (6) ALT 1 (DB)
[6] 2010 (3) ALD 439
[7] 2007 (5) ALD 88
[8] 2003 (1) ALD 563 (DB)