IMPORTANT POINT
A preliminary decree in a partition suit does not constitute a decree under the Andhra Pradesh Rights in Land and Pattadar Passbooks Act for mutation purposes.

JUDGMENT :

(R. Raghunandan Rao, J.)

1. Heard Sri A. Syam Sundar Reddy, learned counsel appearing for the appellants, Sri Mahadeva Kanthrigala learned counsel appearing for the 1st respondent and learned G.P. for Revenue appearing for respondents 2 to 5.

2. The appellants herein are respondents 5 to 8 in W.P. No. 25983 of 2023. Appellants 3 and 4 along with Smt. A. Krishnamma, who is the mother of appellants 1 and 2 had filed O.S. No. 45 of 1999 before the Senior Civil Judge, Madanapalle against the 1st respondent herein and other persons for partition of certain lands on the ground that the said lands were joint family property in which the appellants 3 and 4 and Smt. A. Krishnamma have a share. On contest, a preliminary decree was passed allotting 1/5th share to Smt. A. Krishnamma and 1/5th share to appellants 3 and 4 herein while allotting 3/5th share to the 1st respondent herein.

3. Aggrieved by this preliminary decree, the 1st respondent had filed A.S. No. 05 of 2010 on the file of VII Additional District Judge, Madanapalle, Chittoor District, which eventually came to be dismissed. Against the said order of dismissal, the 1st respondent preferred S.A. No. 144 of 2016, on the file of this Court. By an order dated 23.08.2017, this Court had granted stay of passing of final decree while allowing all other proceedings to go on. This second appeal is still pending consideration before this Court.

4. After the death of Smt. A. Krishnamma, the appellants herein moved a representation before the 5th respondent-Tahsildar, on 20.05.2023, to mutate their names in the revenue records as per the preliminary decree obtained by the appellants. The 1st respondent is said to have filed objections to the said representation, but the 5th respondent-Tahsildar without considering the said objections and without issuing notice had opened a file bearing Roc. No. A/195/2023 and had passed proceedings of mutation in Roc.A/300/2023, dated 08.09.2023.

5. Aggrieved by the said mutation proceedings, the 1st respondent had approached this Court by way of W.P. No. 25983 of 2023 for setting aside the orders of mutation passed by the 5th respondent-Tahsildar.

6. The case of the 1st respondent, before the learned Single Judge was twofold. Firstly, the preliminary decree passed by the trial Court could not have been implemented by virtue of the order of stay granted by this court on 23.08.2017 in S.A. No. 144 of 2016. Secondly, the mutation proceedings could have been initiated, under Section 4 of the Andhra Pradesh Rights in Land and Pattadar Passbooks Act, 1971 (for short 'the ROR Act') only if acquisition of rights was by way of a decree of a Court. In the present case, there is no decree of the Court as a preliminary decree cannot be treated as a decree under the provisions of the ROR Act or under the provisions of the Civil Procedure Code. The learned Single Judge, after hearing both sides, had held that the proceedings of mutation in the present case, could have been conducted only in the cases of acquisition of rights by the appellants herein by a decree of Court and that a preliminary decree cannot be treated as a decree mentioned in Section 24 of the ROR Act. The learned Single Judge came to the aforesaid conclusion on noticing Section 2(2) of C.P.C., and the judgment of the Hon'ble Supreme Court in Shub Karan Bubna @ Shub Karan Prasad Bubna vs. Sita Saran Bubna and Ors., 2009 INSC 1062 : (2009) 9 SCC 689 and Ganduri Koteshwaramma and Anr., vs. Chakri Yandadi 2011 INSC 757 : (2011) 9 SCC 788.

7. On the basis of the above findings, the learned Single Judge allowed the writ petition and set aside the proceedings of the 5th respondent-Tahsildar dated 08.09.2023 with a consequential direction to the 5th respondent-Tahsildar to restore the name of the 1st respondent in respect of the lands mentioned in Roc.A/300/2023 dated 08.09.2023.

8. Aggrieved by the said order, the appellants have moved this court by way of the present writ appeal.

9. Sri A. Syam Sundar Re