SINGANAMALA LAKSHMI NARAYANA vs TAHSILDAR, PRODDATURU MANDAL & ANR.

The present revision has been filed against the judgment dated 11 October 2013 in Appeal no. th 327 of 2013 of the Andhra Pradesh State Consumer Disputes Redressal Commission (''the State Commission'')

The brief facts of the case as per the petitioner are that he had acquired the schedule landed property by way of succession and enjoying the same by raising crops and paying land revenue. It was a joint property along with Mallela Lakshumma, W/o Pullaiah. The property of the petitioner was Ac. 0.96 cents in survey No. 266/C-3. Both the petitioner and another joint owner were

enjoying the property without any dispute in the said survey number. The petitioner applied and paid Rs.250/- by way of challan No. 13079, dated 30-7-2008 for effecting sub-division by meters and bounds of the land. The Tahsildar directed the Mandal Surveyor to divide the same. But it was not affected. The petitioner informed the revenue authorities that one Singanamala Ramaswamy, S/o Asethu purchased Ac. 0-96 cents of land under registered sale deed dated 29-4-1927. The petitioner executed a simple mortgage deed also. Therefore, the complaint was filed directing the Revenue Authorities to effect sub-division and pay Rs.10,000/- towards damages and Rs.1,000/- towards costs.

Notices were served to both respondents 1 & 2 on 30-12-2008 to appear before the District Forum on 20-01-2009. On 20-01-2009 they were called absent. But in the interest of justice it was posted to 03.02.2009 for their counter, if any. But it was not filed and they were called absent and no representation for their side and thus both R1 & R2 were set ex parte on 3-2-2009.

District Consumer Disputes Redressal Forum, Kadapa (''the District Forum'') vide its order dated 3rd February 2009 allowed the complaint as under:

"In the result, the complaint is allowed with costs of Rs. 500/- (Rupees five hundred only) and Rs. 1,000/- (Rupees one Thousand only) towards mental agony payable jointly and severally by the respondents 1 & 2 and effect sub-division of the property by metes and bounds as per documents and records produced by the complainant within 45 days from the date of receipt of this order".

The Decree Holder/ Petitioner/ Complainant filed an execution petition application in complaint case no. 123 of 2008 against the Judgment Debtor/ respondent under section 27 of the C P Act, 1986. " The respondent no. 1 filed objections adopted by the respondent no. 2 with a memo stating that the relief''s sought for by the decree holder/ complainant for sub-division in survey no. 266/ C/ 3 an extent of Ac 0.96 cents out of Ac 1.92 cents at (had) no right or title over the property and created false document and he was in a position and enjoyment valid right and title over the property an extent of Ac 1.92 cents in survey no. 266/C/ 3 and an extent of Ac 0.83 cents in Survey no. 266/C/ 4 was under possession and enjoyment of one Mallela Lakshumma and her legal heirs since 50 years. The decree holder had not raised any crops or paid in land to the property it was not correct that the decree holder/ complainant was enjoying Ac 1.92 cents belonged to Mallel Lakshumma in survey no. 266/ C/ 3. One Undela Ramasubba Reddy took the land for starting brick manufacturing unit for a period of 10 years and the land was not under possession and enjoyment with the permission of Mallel Lakshumma. In 2005, the decree holder/ complainant submitted a requisition stating that he had Ac 0.32 cents and requested the respondent for issuance of the pattadar passbook and on due enquiries the respondents informed the decree holder/ complainant that he had not owned any land as alleged by him in his application and so his requisition was returned by endorsing true facts under letter dated 17.06.2005. The decree holder/ complainant filed the complaint before Joint Collector, Kadapa who rejected his complaint with a direction to get clear right and title through Court of Law to enable the revenue authorities to fulfil his request for sub-division of property as per the rules and regulations of land survey and the land had to be sub-divided unless and until no objections were received from the owners of the surrounding lands. There were rival claims and hence, the respondents were unable to survey the land and make sub-division of the land unless the decree holder/ complainant would get a title through the Court of Law. Thus, the EA may be dismissed with costs. On that application the District Forum, Kadapa dismissed the EA with costs, directing the decree holder/ complainant to pay Rs.2,000/- to the respondents within 30 days from the date

of receipt of order. But in the circumstances, the respondents could sub-divide the disputed property after the decree holder/ complainant would prove his title and right over the property in an appropriate civil court of law with declaration of title as mentioned in exhibit B 1. After the order of District Forum, Kadapa made on 19.10.2011 the decree holder/ complainant approached the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad and filed FA no. 918 of 2011 against EA no. 14 of 2011 in CC no. 123 of 2008 of District Forum, Kadapa. On the same appeal the State Commission, Hyderabad pronounced the order on 17.10.2012 directing that order of the District Forum in EA no. 14 of 2011 dated 19.10.2011 is set aside. The matter was remanded to District Forum, Kadapa to consider as to why the order cannot be executed. Both parties are directed to appear before the District Forum, Kadapa on 01.11.2012 without insisting for fresh notice the District Forum, Kadapa was directed to give an opportunity to be this side whatever they enjoyed under section 27 of CP Act and pass necessary orders basing on the record. As per the orders of the State Commission, Hyderabad in FA no. 918 of 2011 against EA no. 14 of 2011 in CC no. 123 of 2008 the case was remanded to the District Forum, Kadapa".

The District Forum vide their order dated 18.03.2013 while the dismissing the EA no. 14 of 2011 observed as under:

"As seen from the above averments the District Forum, Kadapa stated in the orders dated 19.10.2011 that the Judgment Debtor/ respondents could sub-divide the disputed property after the decree holder/ complainant would prove his title and right over the property in an appropriate civil court of law of the declaration of title as mentioned in Ex B 1. It is very clear that the decree holder/ complainant has to prove his title and right over the schedule mentioned property through appropriate civil court of law. In CC No. 123 of 2009, the District Forum Kadapa directed the respondents 1 and 2 to effect the sub-division of the property by meets and bounds as per the documents and records produced by the complainant. So the orders in CC no. 123 of 2008 and the orders in EA no. 14 of 2011 by the District Forum, Kadapa are very clear that the decree holder/ complainant has to provide his original title deeds to the judgment debtor/ respondents to do sub-division of the schedule mentioned property. Here it is very clear through the documents filed by the judgment debtor/ respondents 1 and 2 exhibits B 7, B 8 and B 9 clearly shows that the decree holder/ complainant is not having right or title over the schedule mentioned property. Under exhibit B 7., i.e., pattadar pass book of the complainant did not disclose the S No. of the schedule mentioned property. Exhibit B 8 clearly shows that there was a civil case against the decree holder/ complainant and others. Exhibit B 9 clearly proves that it is not the title deed belongs to the decree holder/ complainant. So, the complainant did not proved his right and title over the schedule mentioned property, he had not submitted the original documents or title deeds over the schedule mentioned property to the judgment debtor/ respondents 1 and 2. If the decree holder/ complainant did not provide the original title deeds on the schedule mentioned property in favour of him, the judgment debtor/ respondents are not permitted to go beyond their limits and sub-divide the property of the others. So, the decree holder/ complainant approached before the District Forum with a malafide intention to get unlawful gain without right and title deed over the schedule mentioned property. So, the EA no. 14 of 2011 is herewith dismissed without costs.

In the result EA no. 14 of 2011 in CC no. 123 of 2008 dismissed without costs."

The petitioner filed an appeal before the State Commission. The State Commission while dismissing the appeal and upholding the order of the District Forum observed as under:

" It is the case of the respondents/opposite parties that when their staff went to the field for field inspection in order to effect the subdivision on 28.3.2009, on verification of records, it was noticed that the complainant was neither holding a clear title over the property nor was he in enjoyment of the property in survey no.266/C3. Further, when the surveyor went to sub divide the property, objections were raised by appurtenant land holders and owners namely, Mallela Laxmamma and others, who are in possession of the property. Accordingly, the respondents have given a detailed endorsement on 30.3.2009 to the appellant/complainant to demonstrate his title and enjoyment of the property for effecting division of the property. This was done prior to filing of the E.A.No.345/2009.

This is not disputed by the appellant/complainant. The above facts amply demonstrate that the respondents/opposite parties have made sincere efforts to implement the order dt.03.02.2009. In fact the respondents/opposite parties have complied with part of the order by paying Rs.1500/- to the appellant/complainant as ordered in the complaint. The further case of the respondents/opposite parties is that on verification of records by the respondents, it is revealed that the complainant has filed a revision before the Joint Collector against the order of the MRO, Proddutur dt.15.06.2005 refusing to issue Pattadar Passbook in respect of the subject land of Ac.0.96 cents in survey no.266/C3 and the appeal before RDO, Jammalamadugu was also dismissed and that the Joint Collector, Kadapa in D.Dis.No.E2/3243/2009 has dismissed the revision on 23.06.2008 with a direction to the complainant to approach the Civil Court for a declaration of his title. The appellant/complainant did not deny the above facts pleaded by the respondents/opposite parties.

From the above facts, it is established that the respondents/opposite parties paid the compensation amount as per the order in C.C.No.123/2008, notices sent to the parties for conducting survey and thereafter as the documents produced do not establish any entitlement of the complainant, the sub-division could not be carried out. Therefore, we do not find any disobedience, much less intentional disobedience of the order by the respondents/opposite parties. It is true that the District Forum being an executing court cannot go beyond the order of the District Forum made in C.C.No.123/2008. But, when the order itself cannot be implemented, the District Forum can refuse execution of the order, especially when there is no deliberate disobedience of the order by the respondents/opposite parties.

For the aforesaid facts and circumstances, we do not find any irregularity or illegality in the impugned order of the District Forum to interfere with the same. Hence the appeal fails."

Hence, the present revision petition.

The petitioner/ decree holder has sent a fax message which was received in this Commission on 8 March 2016 stating that he is suffering from ill-health and hence, will not be able to attend th the hearing of the Commission. He has submitted that the case may be decided based on the written submissions.

We have gone through the record. In the said revision petition, the petitioner has mainly contended that the order of the State Commission is erroneous and against the principles of law having passed beyond the purview of jurisdiction on the following main grounds: The petitioner had categorically stated in his case in the main consumer dispute case that the respondents having received fee to measure the property had failed to measure the same thereby committing an act of deficiency in service.

The respondents have no right to deny the request of the petitioner to measure the property and locate the same by taking the plea that he is not in possession and enjoyment of the same and that the title is not even in dispute as there are documents of title deeds to speak about right of the petitioner over the property.

The respondents having received the prescribed fee to measure the land need not go into issues regarding title deed and ownership.

The order passed by the District Forum, Kadapa on 03.02.2009 directing the respondents to measure the property on the ground and locate the same is legally enforceable order binding on the respondents to obey the same and act accordingly. But instead of obeying the order they came up with a false version that the property could not be located and until the right and title to the property is established it could not be measured.

We have also gone through the written submissions, wherein he has by and large repeated the grounds in the revision petition. We have carefully gone through the case. We agree with the District Forum and the State Commission that since the petitioner has failed prove his title and ownership of the scheduled mentioned property and has failed to submit the original records or title deeds to the judgment debtor/ respondent 1 and 2, the judgment debtor/ respondents, in the circumstances, cannot take law into their own hands to measure and sub-divide the property of others. The Joint Collector, Kadapa had ordered the petitioner vide order dated 23.06.2008 to approach the appropriate Civil Court and to get succession and title over the petitioner''s scheduled mentioned property. As per the order of the District Forum dated 18.03.2013 the petitioner has filed a suit which was dismissed by the Senior Civil Judge Court, Proddatur. The petitioner had no pattadar passbook or title deed to prove his right or position of the schedule mentioned property of which he seeks.

The Hon''ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 has observed:

"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is dismissed with a cost of Rs.10,000/-. Cost be deposited with the "Consumer Legal Aid Account - NCDRC" with four weeks. List the matter on 18 April 2016 for compliance.