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Janupala Vijay Kumar Reddy & Others v/s State of A.P. rep. by its Principal Secretary, Revenue Registration, Hyderabad & Others

    Writ Petition No. 24726 of 2016
    Decided On, 06 January 2022
    At, High Court of Andhra Pradesh
    By, THE HONOURABLE MR. JUSTICE M. SATYANARAYANA MURTHY
    For the Petitioners: Suresh Kumar Reddy Kalava, Advocate. For the Respondents: G.P. for Revenue (AP).


Judgment Text
This writ petition is filed under Article 226 of the Constitution of India, seeking the following relief:

“to issue a Writ, order or direction, more particularly one in the nature of Writ of Mandamus directing the respondent No.4 to cancel the registration of Cancellation document Nos.6302 and 6301 of 2012 dated 03.09.2012 made in Book No.1 Page No.1 in the office of Joint Sub Registrar, Nandyal, Kurnool District by contrary to Rule 26(i)(k)(i) of Andhra Pradesh rules under the Registration Act, 1908 and consequently set aside the said registration and pass such other orders.”

The case of the petitioner is that the 5th respondent gifted the land admeasuring Ac.2.05 cents in Sy.Nos.426 and 428 of Ayyalur Village in favour of the 1st petitioner under registered gift deed. The 1st petitioner obtained Pattadar Pass Books and Title Deed in his name and recorded his name in the concerned revenue records including Adangals and 1B document was also issued.

On 08.05.2006, the 6th respondent gifted the land admeasuring Ac.3.17 cents in Sy.No.427 and 428 of Ayyalur Village, Nandyal Mandal, Kurnool District in favour of the 2nd petitioner under Registered gift deed. The 2nd petitioner also obtained Pattadar Pass Book and Title Deed and also mutated his name in the revenue records.

The respondent Nos. 5 and 6 unilaterally executed deeds of cancellation dated 03.09.2012, cancelling the gift deeds executed by them in favour of the petitioner Nos.1 and 2 respectively and got it registered with the office of the 4th respondent .

The petitioner Nos.1 and 2 issued separate legal notices dated 14.12.2013 to the respondent Nos.5 and 6 and were informed that their action in cancelling the registered gift deed is illegal and void in law. Thereafter, the petitioner Nos.1 and 2 jointly executed a registered sale deed in favour of the petitioner Nos. 3 and 4.

The Tahsildar, Nandyal submitted a report to the Revenue Divisional Officer, Nandyal, on the appeal filed by the petitioner Nos.1 and 2. Later, the respondent Nos.5 and 6 also filed suits in O.S.Nos.639/2014 and 641/2014 on the file of Honourable Principal Senior Civil Judge, Nandyal, for declaration and injunction against the petitioner Nos.1 and 2 herein and the respective suits are pending before the competent court.

The main grievance of the petitioners is that for cancellation of registered gift deeds, notice is required to be issued under Rule 26(i)(k)(i) of Andhra Pradesh Registration Rules made under the Indian Registration Act, 1908 but, no such notices were issued to these petitioners before registering deeds of cancellation executed by the respondent Nos.5 and 6, thereby deeds of cancellation of the gift deeds dated 08.05.2006 and 01.09.2008 are illegal and contrary to the procedure prescribed under law.

The respondent Nos. 5 and 6 filed counter admitting about execution of gift deeds in favour of the petitioner Nos.1 and 2 and execution of the cancellation deeds dated 01.09.2008 and 08.05.2006 and contended that those gift deeds were original deeds obtained by the petitioner Nos.1 and 2 in favour of the respondent Nos.5 and 6 under undue influence and coercion, both documents were not acted upon and the respondents never delivered possession to the petitioner Nos. 1 and 2.

Even till today, the property covered under the registered gift deeds dated 01.09.2008 and 08.05.2006 is in possession and enjoyment of the 5th respondent and other three brothers and 6th respondent and his family members respectively. Basing on the possession and enjoyment of the 5th and 6th respondents, the revenue authorities mutated their names in the revenue records and issued Pattadar Pass Books and Title Deeds in their favour. As the said gift deeds dated 01.09.2008 and 08.05.2006 are sham and nominal documents and not acted upon, the 5th and 6th respondents executed cancellation deeds on 03.09.2012, cancelling the gift deeds dated 01.09.2008 and 08.05.2006 with the knowledge and consent of the petitioner Nos.1 and 2.

Subsequently, petitioner Nos.1 and 2 jointly executed registered sale deeds in favour of the petitioner Nos.3 and 4 for wrongful gain with all false recitals at Sub-Registrar’s office, Banaganapalli, though the documents were not binding on the respondent Nos. 5 and 6.

It is further contended that on 20.12.2014, petitioners along with their members trying to trespass into the land covered by gift deed. The respondent Nos.5 and 6 filed suits in O.S.Nos.369/2014 and 641/2014 on the file of the Principal Senior Civil Judge Court, Nandyal against the petitioners for declaration of their right and title to the suit schedule properties and for permanent injunction restraining the petitioners herein from trespassing into or interfering with the peaceful possession and enjoyment of the suit schedule property/ property covered by the gift deeds dated 01.09.2008 and 08.05.2006. Along with the suits, the petitioners also filed I.A.Nos.1168 of 2018 and 1165 of 2018 respectively for grant of temporary injunction and the same was granted in favour of the respondent Nos.5 and 6, holding that they are in possession and enjoyment of the property covered by the gift deeds dated 01.09.2008 and 08.05.2006 by separate orders dated 31.12.2014 and the suits are pending adjudication.

The petitioner Nos.1 to 4 filed an application R.C.E.No.4246 of 2014 before the Revenue Divisional Officer, Nandyal to cancel the Pattadar Pass Books issued in favour of the respondent Nos.5 and 6. The said application was dismissed by the Revenue Divisional Officer, Nandyal, by order dated 07.10.2016 and no appeal has been preferred by the petitioners against the order passed by the Revenue Divisional Officer, Nandyal.

Finally, it is submitted that Rule 26(i)(k)(i) of Andhra Pradesh Registration Rules made under Registration Act, 1908 is not applicable to the present facts of the case and the same is applicable only to the deed of conveyance on sale. Therefore, failing to issue notice in compliance to Rule 26(i)(k)(i) of Andhra Pradesh Registration Rules made under Registration Act, 1908 is not a ground to satisfy the declaration of revocation deeds executed by the respondent Nos.5 and 6 and cancelling the gift deeds executed in favour of the petitioner is null and void.

Finally, a remedy open to the petitioners is to approach the Civil Court for an effective efficacious alternative remedy and the petitioners are not entitled to invoke the jurisdiction of this court under Article 226 of the constitution of India and requested to dismiss the writ petition.

The 4th respondent filed separate counter admitting about execution of documents and registration of cancellation deeds executed by the respondent Nos.5 and 6, while contending that the Rule 26(i)(k)(i) of Andhra Pradesh Registration Rules made under Registration Act, 1908 came into force w.e.f., 29.11.2006, which provides for requiring, at the time of presentation for registration of cancellation deed of previously registered deed of conveyance on sale, execution of such document by all the executants and all the claimants to the previously registered deed of conveyance on sale. A proviso to this rule also provides for dispensing with the presence of certain category of executants and claimants and admitted land name before the Sub-Registrar, while executing the cancellation of deed of conveyance on sale. This rule is only applicable for cancellation of sale deeds, whereas in the instant case, the transaction is a gift settlement deed and the above rule is not applicable.

It is further stated that the Commissioner and Inspector General of Registration and Stamps, Hyderabad, informed vide Letter Rc.No.C1/10866/2006 dated 14.03.2008, this rule is extended to all the instruments namely, agreement of Sale Cum GPA, Development Agreement-Cum-GPA, Partition, Release, Mortgage, shall be governed by Rule 26(i)(k)(i) w.e.f., 14.03.2008. Through the Commissioner and Inspector General of Registration and stamps Department vide Memo.No.G1/10547/2008, dt.25.08.2008, this rule is extended for gift and gift Settlement deed also.

Finally, it is contended that the writ petition is not maintainable as effective alternative remedy is available and requested to dismiss the writ petition.

During hearing, Sri Suresh Kumar Reddy Kalava, learned counsel for the petitioners, submits that as per the judgment in Kolli Rajesh Chowdary V. A.P.State and four others (W.P.No.977 of 2019 dated 07.03.2019), basing on the said principle, this Court allowed the writ petition in W.P.No.17956 of 2021. Whereas, the counsel for respondent Nos.5 and 6 would contend that alternative remedy is available for the petitioner to get the cancellation deeds set aside by filing appropriate civil suits. In support of his contention, he relied on judgment of High Court of Andhra Pradesh in Smt.P.Veda Kumari and others v. Sub-Registrar and others (W.P.No.4174 of 2008 dated 18.08.2017) and requested to dismiss the writ petition. Whereas the learned Assistant Government Pleader for Registration and Stamps supported the action of the respondent No.4 and requested to dismiss the writ petition.

The execution of gift deeds and cancellation deeds by the respondent Nos.5 and 6 in favour of the petitioner Nos.1 and 2 and execution of cancellation deeds dated 03.09.2012 is not in dispute but the only question is whether Rule 26 (i)(k)(i) of Andhra Pradesh Registration Rules made under Registration Act, 1908 are applicable to gift deeds or not.

Rule (k)(i) of the Andhra Pradesh Registration Rules, 1908 as inserted by Notification No.R.R.1/2006, Published in Andhra Pradesh Gazette R.S. to Pt. II. Ext. No.18,dated 29.11.2006 is extracted herein for better appreciation:

“The registering officer shall ensure at the time of presentation for registration of cancellation deeds of previously registered deed of conveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing mutual consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale;

Provided that the registering officer shall dispense with the execution of cancellation deeds by executant and claimant parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil Judge or a Government Officer competent to execute Government Orders declaring the properties contained in the previously registered conveyance on sale to be Government or Assigned or Endowment lands or properties not registerable by any provisions of law;

Save in the manner provided for above no cancellation deed of a previously registered deed of conveyance on sale before him shall be accepted for presentation for registration.”

A bare look at the contents of the provision, the procedure prescribed under Rule 26(i)(k)(i) of Andhra Pradesh Registration Rules made under Registration Act, 1908 is applicable to deed of conveyance, but the Sub-Registrar himself conceded in his counter that the Commissioner and Inspector General of Registration and Stamps issued Rc.No.C1/10866/2006 dated 14.03.2008 and later, issued a memo vide Memo.No.G1/10547/2008, dt.25.08.2008, extending the rule to gift and settlement deed also vide paragraph No. 5 of the counter affidavit. A copy of the notification dated 29.11.2006 is also placed on record and the memo issued by the Commissioner and Inspector General extending Rule 26(i)(k)(i). In terms of this memo vide Memo.No.G1/10547/2008, dt.25.08.2008, the procedure prescribed under Rule 26(i)(k)(i) of the Registration Rules is applicable even to partition, release, mortgage, gift and gift settlement deeds etc., Thus, the 4th respondent is required to follow the procedure prescribed under Rule 26(i)(k)(i) of the Registration Rules and an identical issue came up before this court in W.P.No.977 of 2019 dated 07.03.2019, where the learned Single Judge of this Court held that cancellation deed or revocation deed registered in contravention of Rule 26(i)(k)(i) Andhra Pradesh Registration Rules made under Registration Act, 1908 is illegal and such registration of cancellation deed without following procedure is not valid.

At the same time, the learned Single Judge referred above also discussed about the jurisdiction of this court under Article 226 of the Constitution of India. Despite the availability of alternative statutory remedy and on the ground that the pro

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cedure has not been followed, the order was set aside. In any view of the matter, by following the judgment referred above, it is difficult to sustain the contention of the learned counsel for the respondent Nos.5 and 6. He relied on a judgement of this court in Smt.P.Veda Kumari (2 supra), wherein this court, considered Rule 26(i)(k)(i) of the Rules but the issue relates to pre-amendment. Therefore, the principle laid down in the above judgment is not applicable to the present writ petition. Thus, the 4th respondent violated the procedure prescribed under the Rules and Memo issued by the Commissioner and Inspector General of Registration and Stamps and the very registration of cancellation deeds/ revocation deeds is in contravention of the Rule and the Memo. Hence, revocation deeds dated 03.09.2012 are declared as illegal and the registration of revocation deeds is contrary to Rule 26(i)(k)(i) of the Registration Rules. In the result, writ petition is allowed, directing the respondent No. 4 to cancel the registration of cancellation deeds vide Document Nos. 6302 and 6301 of 2012 dated 03.09.2012 made in Book No.1, Page No.1 in the Office of Joint Sub Registrar, Nandyal, Kurnool District, within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs. Consequently, pending miscellaneous applications, if any, shall stand dismissed.
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