The Collector's power under Section 15 (2) of the Hyderabad Record of Rights in Land Regulations, 1358 Fasli, to rectify the record of rights is not arbitrary and must be exercised cautiously and consistently with the provisions of the statute. The Collector cannot cause an entry to be corrected as against the decree or decision of a court so far as that decree or decision has bearing upon the right sought to be entered in the record of rights.

Headnote:
HYDERABAD RECORD OF RIGHTS IN LAND REGULATIONS, 1358 FASLI - SECTION 15 (2) - RECTIFICATION OF RECORD OF RIGHTS - POWER OF COLLECTOR - SCOPE AND LIMITATIONS - RES JUDICATA - APPLICABILITY TO PROCEEDINGS UNDER SECTION 15 (2) - ADVERSE POSSESSION - EFFECT ON SHIKMIDARI RIGHTS.
Fact of the Case:

The petitioner, claiming to be in possession of certain lands, challenged the order of the Additional Collector, Medak, passed under Section 15 (2) of the Hyderabad Record of Rights in Land Regulations, 1358 Fasli, directing the entry of the 1st respondent's name in the Record of Rights as a Shikmidara. The 1st respondent had earlier filed a suit for possession of the same lands, which was dismissed on the ground of limitation. The petitioner contended that the Collector could not rectify the record of rights in a manner inconsistent with the decision of the Civil Court and that the 1st respondent's right had been extinguished by adverse possession.
Finding of the Court:

The Court held that the Collector's power under Section 15 (2) of the Regulation to rectify the record of rights was not arbitrary and had to be exercised cautiously and consistently with the provisions of the statute. The Court further held that the Collector could not cause an entry to be corrected as against the decree or decision of a court so far as that decree or decision had bearing upon the right sought to be entered in the record of rights. In the present case, the Court found that the 1st respondent's right to possession and enjoyment of the property had been negatived by the Civil Court, and that the entry in the Register was in accordance with that decree. The Court also held that the 1st respondent's shikmidari rights could not subsist apart from possession, whether actual or constructive, or in spite of ouster. As the order of the Additional Collector suffered from these errors, it was quashed.
Issues: 1. Whether the Collector could rectify the record of rights in a manner inconsistent with the decision of the Civil Court? 2. Whether the 1st respondent's right had been extinguished by adverse possession? 3. Whether shikmidari rights could subsist apart from possession, whether actual or constructive, or in spite of ouster?
Ratio Decidendi: 1. The Collector's power under Section 15 (2) of the Regulation to rectify the record of rights was not arbitrary and had to be exercised cautiously and consistently with the provisions of the statute. 2. The Collector could not cause an entry to be corrected as against the decree or decision of a court so far as that decree or decision had bearing upon the right sought to be entered in the record of rights. 3. Shikmidari rights could not subsist apart from possession, whether actual or constructive, or in spite of ouster.
Final Decision: The order of the Additional Collector was quashed and the writ petition was allowed with costs.

( 1 ) THIS writ petition raises some important questions under the hyderabad Record of Rights in Land Regulations, 1358 Fasli and the applicability of the doctrine of resjudicata to proceedings under section 15 (2) of the Regulations I think it desirable that the matter may be decided authoritatively by a Bench. I, therefore, direct tbat the writ petition may be posted before a Bench. In pursuance of the above order this case came on for final hearing before the Bench consisting of the Hon ble Mr, N. Kumarayya, acting Chief Justice and the Hon ble Mr. Justice Kondaiah. Mr Jaleel Ahmed Advocate for the petitioner. Mr N. Narasimha Iyengar Advocate for the 1st respondent, 3rd Government Pleader on behalf of the 2nd respondent.

( 2 ) THIS is a petition for issue of a Writ of Certiorari or any other appropriate writ, order or direction, quashing the order of the additional Collector, Medak, dated 17-4-1965, whereby he, in exercise of his powers under S. 15 (2) of the Hyderabad Record of cases, bis only claim is that he is in actual possession, of the office; "de facto" means "by the title of possession" in antithesis to "de juri" i. e. by the title of right, 1949 (2) M. L. J, 171 followed, no person who has accepted the position as a trustee and has acquired property in that capacity can be permitted to assert an adverse title on his own behalf until he has obtained a proper discharge from the trust with which be has clothed himself. I, L, R, 34 Madras 251 followed, the scope of section 10 of the Limitation Act is that it grants a total exemption from the bar of limitation in regard to the suits mentioned therein.

( 3 ) SO long as the trustee continued to hold the properties in trust for the temple under certain obligations to be discharged by them they are not in the position of trustees de son tort and cannot invoke article 134-B of the Limitation Act. 1953 (2) M. L, J, 382; A. I. R, 1955 Mad, 18 followed, the bar of Limitation does not stand in the way of the plaintiff to recover possession of the property belonging to the temple and ask for the accounts from the defendant.

( 4 ) G. O. Ms. Not 524/health/dated 16-3-1970admission into the medical Colleges for the year 1969-70rule- reservation of seats for students possessing N. C. C. Certificates -scope-indicated. possession of the lands in question, it was held that the suit was out of time. The suit was accordingly dismissed. This judgment was rendered on 30-6-1951. It became final as no appeal was preferred against the same.

( 5 ) AFTER a long silence thereafter, the 1st responmdent Momin begum applied under and 15 (2) of the Record of Rights in Land regulation for entering her name in the Record of Rights claiming that she was, at any rate, a Shikmidara being one of the heirs to the deceased pattadar. She claimed that as far back as in 1341 fasli, the Tahsiidar bad given a direction to the Pattwari to enter her name and also the name of her senior co-widow Turabunnisa begum as shikmidaras in the Record of Rights. In support of this contention she relied on Exs. P. 1 and P, 2. She averred that she was under the impression that her name had been entered as shikmidara in the Record of Rights as per the order of the Tahsiidar in 1341 Fasli. But she came to know recently that her name was not entered either as Shikmidara or joint pattadars.

( 6 ) THERE seems to be some misapprehension as to the proceeding before the Tahsildir being one for entering the name in the record of Rights for no such Regulation was in existence in the year 1341-fasli. It was probably succession proceedings and therein a direction seems to have been given by the Tahsiidar, which was finally taken up in revision before the Government, and an order in ex. P. 2 was passed. Be that what it may, the fact remains that there was a civil suit filed later by Momin Begum which was finally dismissed. The name of the petitioner was entered in the Khasra pahani of 1954-55 in relation to the disputed lands aad his fathe

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1969 Supreme(AP) 90

Andhra Pradesh High CourtJudges : C.KONDAIAH, N.KUMARAYYAMeer Ahmed Ali Khan - AppellantVersusMomen Begum - RespondentDecided On : 06-27-69

Andhra Pradesh High Court
Judges : C.KONDAIAH, N.KUMARAYYA
Meer Ahmed Ali Khan - Appellant
Versus
Momen Begum - Respondent
Decided On : 06-27-69