AT HYDERABAD.

F.A. 502/2010 against C.C.  117/2008, Dist.. Forum, Ananthapur.

Between:

N. C. Sampath Kumar

s/o. Late N. C. Rajagopal

R/o. Sarojini Road

Anathapur.                                                           ***             Appellant/    Op                                                                                    

.                                                                  And

1. Smt. N. C. Thangamma

W/o. Late N. C. Rajagopal

84 years, D.No. 10-370

Sarojini Road, Anathapur.

2.  N. C. Anantha Krishna

S/o. Late N. C. Rajagopal

Agriculturist, D.No. 10-370

Sarojini Road, Anathapur.                          ***                         Respondents/     

                                                                                                Complainants. 

Counsel for the Appellant:                          M/s. K. Paramdhama Chari

Counsel for the Resps:                               M/s. V. Gourisankara Rao.  

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

SMT. M. SHREESHA, MEMBER

TUESDAY, THIS THE SEVENTEENTH DAY OF AUGUST TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

*****

1)                This is an appeal preferred by the opposite party against the order of the Dist. Forum directing him to deliver the documents  Exs.  P1 to P8. 

2)                The parties are arrayed as described  in the complaint for felicity of expression. 

3)                The case of the complainants in brief is that complainant  No. 1 is the mother of  complainant No. 2 as well as the  appellant.   The appellant is a practising advocate.   Their father late N. C. Rajagopal bequeathed some  lands situated at Gangulakunta in favour of the mother by executing a Will dated 26.4.1981.  Sine their father was adopted by N. C. Krishnamachar who was the original shrotriumdar, the properties are  in nature of  self acquired properties.    They filed a claim petition u/s 15(1) of A.P. Estates Abolition Act, 1948 seeking Raytwari Patta before the settlement officer, Nellore.    The appellant as an advocate filed claim petition on their behalf,  and conducted enquiry against third parties before the settlement officer, Anathapur.   He was examined as PW1 and the attestor of Will as PW2 and got exhibits P1 to P8 marked.    Basing on these documents their claim was accepted.   Since they were not aware of the legal proceedings they did not take return of the documents.   However, recently when they sought for return of the documents, the District Revenue Officer, Ananthapur by endorsement dt.  28.8.2008 informed that the appellant had taken the documents from the settlement officer and enclosed photostat copy of acknowledgement given by the appellant.  When they sought for return of the documents the appellant did not respond, on which a lawyer notice was issued on 2.9.2008 however it did not evoke any reply.    Therefore they sought for return of the documents, besides damages and  costs. 

4)                The appellant resisted the case.   While denying each and every allegation made in the complaint,  he alleged that the family dispute was projected by the complainant No. 2 as a consumer dispute.  A suit is filed for partition amongst them and an appeal is pending before the High Court in A.S. No. 512/2003.   The complainant No. 2 and  other sisters  out of jealousy of his growth  got filed the case through  his mother alienated him without any cause of action.    In fact if he  were to be engaged as an advocate the documents filed by them for  adjudication of pattas   which were obtained in the year 1986,   they could not have sought the documents after 22 years.    In fact  for the notice issued,  he gave a correct reply.    There was no allegation that there was any deficiency in service on his part.   The complaint was not filed within two years from the date of cause of action.  It was barred by limitation.  The complaint could be dismissed  on  the preliminary objections  of limitation, and jurisdiction,    and prayed for dismissal of the complaint with costs. 

5)                 The complainants in proof of their case filed affidavit evidence and got Exs. A1 to A4 marked, while the appellant did not choose to file documents except filing a memo stating that W.P. No. 5790 /2010 was filed and the matter be  stayed till the disposal of writ petition. 

6)                 The Dist. Forum after considering the evidence placed on record opined that by virtue of endorsement in  Ex. A2 that the documents Exs. P1 to P8 were taken by the appellant directed him to deliver the same to the complainants. 

7)                 Aggrieved by the said decision, the opposite party preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.    He contended that the President of the Dist. Forum earlier as Chairman, Land Reforms Appellate Tribunal allowed the appeal preferred by the government against him.   Despite a memo that he was already prejudiced and the matter be tried by another forum, he refused to adjourn and disposed of the matter without mentioning the dispute between them.    Despite pendency of W.P. No.  5790/2010 he proceeded ahead and passed above orders hurriedly.    It did not appreciate the subsequent litigation in O.S. No. 39/1993 on the file of Principal Subordinate Civil Judge, Ananthapur which was filed for partition,  wherein these documents were filed.  The complainants did not seek exclusive rights of settlement patta and admitted that they belong to the family.    The decree was also passed  on 10.7.2002.  Even in the said suit,  they did not ask for return of documents.   This complaint was the outcome of family disputes between them.    Therefore, he prayed that the appeal be allowed.

8)                 The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

9)                It is an undisputed fact that complainant No. 1 is the mother of complainant No. 2 and the appellant.   In other words  mother and sisters filed complainant against his own son and brother for return of Will and other documents.   The allegation is that in the proceedings before the Settlement Officer for issuance of rytwaripatta,  the appellant he being their  advocate filed the Will executed by their father along with family settlement deed, receipt and adangal extracts   on 30.6.1986, however failed to return to them.    Therefore they sought for return of those documents. 

10)              The appellant resisted the case by stating that subsequently a suit in O.S. No. 39/1993 for partition was filed wherein all of them were parties   where the documents were filed.   Therefore insisting for return of documents to them could not be valid.  They were not entitled to those documents exclusively. 

11)              Before considering the merits of the appeal, we may state herein that evidently there were family disputes between them not only for partition of property but also before the Land Reforms Appellate Tribunal.  O.S. No. 39/1993 was filed by one of the sisters for partition of all the properties for which Ryotwari patta was obtained.  The suit was decreed on 10.7.2002.  An appeal in A.S. No. 512/2003   was preferred and the same is pending before the High Court.    A  Writ Petition No. 5790/2010 against the order of the Dist. Forum dt. 3.2.2010 was filed contending that the complaint was not amenable for adjudication under the Consumer Protection Act and the same is pending before the High Court.   Despite his memo not to proceed further, the Dist. Forum went ahead and passed the impugned order based on the documents filed by the complainants  and opined that the appellant did not deliver the documents Exs. A1 to A4, and therefore he had to deliver the same.  

12)              At the outset we may state that there is no dispute that the appellant is none other than son of the first complainant and brother of second complainant.    In the appeal though for the first time  he alleged that his father died on 25.7.1981 leaving his mother complainant No.1 and six sisters and three sons,  and that  they own the property consisting of 10 acres of land situated at Gangulakunta village.  During his life time,  his father and his brothers filed a declaration in Land Reforms Tribunal at Ananthapur in C.C. No. 3520, CC 3523, CC 3535/1975 and C.C. 3554/1975 wherein they were directed to surrender 72 acres of dry land.  An appeal has been pending before the Land Reforms Tribunal.  When the Settlement Officer initiated the proceedings in regard to the above said estate,  they sought for Rytwari patta. On the advice given by his senior counsel Sri G. R. Viswamurthy the documents were obtained in the names of complainants.    After finding that the pattas were given irregularly the said offer was suspended.    In 1996 family settlement was initiated.  He being an advocate represented the complainants and other family members  took return of the documents and handed over to his mother.   Later  O.S. No. 39/1993 was filed by one of his sisters for partition of properties  against the appellant and the complainants.   The complainants did not choose to contest and agreed to take share according to law.  When suit was decreed on 10.7.2002 an appeal was filed in A.S. No. 512/2003 and the same is pending for adjudication.   

13)              At the instance of one   Sri K. L. N. Prasad appearing for the complainants,  got this complaint filed for return of documents,  22 years after documents were returned.    When he raised the preliminary point   the President of the Dist. Forum openly declared that the appellant having received the documents should return.    As Presiding Officer of Land Reforms Tribunal   he passed an adverse order against him. He filed a memo not to decide the matter as the President is  prejudiced against him.      On that he moved the High Court in W.P. No. 5790/2010 and the notices were ordered to be served on the complaints.  Though he filed a memo not to pass any orders, the Dist. Forum went ahead and pronounced the impugned order. 

14)               We may state that  pendency of  various proceedings before various courts were not disputed by the complainants.    In the written arguments filed by the complainants they admitted that  O.S. No. 39/1993  on the file of  Principal  Subordinate  Court, Ananthapur  was  filed by one of the sisters wherein  they were impleaded as  D2 to D6 and at that time they completely believed the appellant and  even executed a GPA in his favour.    They were kept in dark about the proceedings.    They were under bonafide impression that the said suit would be compromised and therefore they did not file any written statement.   One of the sisters D7 was transposed as plaintiff No. 2 in O.S. No. 39/2003.    She was personally cross-examined by the appellant and argued the case.     When the said suit was decreed complainant No. 2 filed A.S. No. 3512/2003 before the High Court and the same is pending.    Since they lost confidence on the appellant they cancelled the GPA in 2008.     The said suit O.S. No. 39/2003 has no bearing for the complaint filed by them.  They justified the orders of the Dist. Forum on the ground that no stay orders were passed in A.S. No. 3512/2003 by the High Court.    Even before receipt of notice since the Dist. Forum has   disposed of the complaint itself  the writ petition has become in fructuous. 

15)               Admittedly when the appellant is no other than son and brother of complainants 1 & 2 respectively,  and the matters are pending for partition among them in the suit filed by one of the sisters, wherein allegation of  one of the sisters was that it was a joint family, the question of propriety in  asking for return of documents is a question to be determined.  That apart the complainants’ case is that it was a self acquired property of their father who in turn bequeathed the property in their favour by executing a Will.    However, even according to them there was a family settlement.  The appellant admits that he having defended the complainants and other family members before the settlement officer  took the documents.  After acquiring the property they filed suit and other proceeding before various courts and more so when the appellant has been questioning the maintainability of the complaint in W.P.No.  5790/2010 the Dist. Forum ought not to have passed orders.    It could have directed the complainants to file copies of all the documents that were referred in order to appreciate whether it was a case where the appellant was bound to return the documents.    In the light of various proceedings initiated above, we are of the opinion that the parties should  be given an opportunity to let in evidence by filing all the above proceedings before the Dist. Forum in order to appreciate the various questions raised by the appellant in this case.    We may also state that the appellant  had to take necessary initiative  for disposal of the writ petition or  obtain stay, lest the Dist. Forum  would  be within its right to proceed with the case. 

16)               We may also state that the appellant be permitted to file written version by taking all the please and the disputes that were raised.  In case the appellant does not choose to file the written version, both parties be  directed to file the documents mentioned above and the Dist. Forum is directed to dispose of the matter  on  merit according to law.     Both parties are directed to appear before the Dist. Forum on 1.9.2010 without insisting on fresh notice.

17)               In the result the appeal is allowed.  The order of the Dist. Forum is set-aside.  The  matter is remitted to Dist. Forum for de-novo enquiry. Both parties are directed to appear before the Dist. Forum on 1.9.2010,  without insisting on fresh notice.   The Dist. Forum is directed to dispose of the matter according to law after affording opportunity to both parties as indicated above.     In the circumstances,  the parties are directed to bear their own costs. 

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER

                                                                             Dt.     17.  .08. 2010.

*pnr

“UP LOAD – O.K.”