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2001 DIGILAW 1046 (AP)

Thimma Reddy v. Golla Kashanna

2001-09-17

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) THE revision petitioners aggrieved by the order of the Joint Collector of Mahabubnagar in Case No. B7/ IA-1/1994 had preferred the present revision under Section 9 of the A. P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (hereafter referred to as act in short ). ( 2 ) THE revision petitioners Thimmareddy and Narayan Reddy and another Venkat reddy, who is no more, are the sons of late Sai Reddy. The said heirs of Sai Reddy were granted the ownership certificate dated 23. 8. 1975 under Section 38-E of the Act by the Additional Revenue Divisional Officer, Gadwal in respect of their lands in S. No. l17 of an extent of 17 acres 31 guntas and the respondents herein, who have been in possession of the said property, aggrieved by the same preferred an appeal under Section 90 of the Act. After a long lapse of time it was allowed and the 38-E Certificate was cancelled and the said Thimma Reddy and Narayan Reddy, the heirs of Sai Reddy, aggrieved by the said order of the Joint Collector of Mahabubnagar, had preferred the present civil revision petition. ( 3 ) VENKET Reddy, one of the heirs of Sai Reddy, it is reported now that he died on 2. 11. 1998, even when the appeal was pending, and subsequent thereto the appeal was disposed of. The respondents herein had filed the appeal before the Joint Collector stating that one Nagi Reddy was the paltedar and owner of the land bearing S. No. 117 for an extent of 17 acres 31 guntas in Chinamandadi village of Pedamandadi Mandal and after the death of the said Nagi Reddy, succession had been granted in the names of his two sons, namely, Yella Reddy and Dharma Reddy and one Sai Reddy was the protected tenant of the said land and the said protected tenant had orally and with consent has voluntarily surrendered the protected tenancy rights in the year 1952 in favour of the land holders, who were minors, and handed over the possession of the said lands. Subsequently, the land holders have sold 6 acres of land in S. No. l 17 to 1st respondent herein and one Narayana through a registered sale deed dated 7. 10. Subsequently, the land holders have sold 6 acres of land in S. No. l 17 to 1st respondent herein and one Narayana through a registered sale deed dated 7. 10. 1971 and since then the 1st respondent and the heirs of Narayana i. e. , the respondents 2 and 3, since the said Narayana expired, have been in possession and enjoyment of the said property even to the knowledge of the revision petitioners. ( 4 ) IT appears the Addl. Revenue Divisional Officer, Gadwal had granted ownership rights in favour of revision petitioners and one Venkat Reddy, who is no more as stated supra, in the year 1975 after surrender by the protected tenancy rights by late Sai Reddy and inasmuch as the said Sai Reddy himself had surrendered the tenancy rights prior to 4. 2. 1954, the granting of certificate under Section 38-E of the Act in favour of the heirs of the said Sai Reddy is not legal. It is also further stated that on the date of the sale of the lands in their favour the said Sai Reddy was not having any rights of protected tenancy in S. No. l17 and hence the land holders had alienated the land and since the date of purchase they have been in possession and enjoyment of the lands as owners and the patta of the lands had also been mutated in revenue records in their names and since 1971 they have been cultivating the lands and they have developed these lands also. It is also further stated that on the date of enforcement of the provisions of Section 38-E of the Act neither Sai Reddy nor the legal heirs of Sai Reddy were having any protected tenancy rights in relation to the subject-matter in dispute in view of the oral surrender effected in the year 1952. The Joint Collector of Mahabubnagar had passed an order allowing the appeal and cancelling the certificate issued under Section 38-E of the Act. Aggrieved by the said order, the present revision petition is filed. ( 5 ) SRI Raghuveer Reddy, the learned Counsel representing the revision petitioners, had contended that no proper opportunity had been given before passing the impugned order. Aggrieved by the said order, the present revision petition is filed. ( 5 ) SRI Raghuveer Reddy, the learned Counsel representing the revision petitioners, had contended that no proper opportunity had been given before passing the impugned order. The learned Counsel also had contended that while deciding the validity of the issuance of protected tenancy certificate, the aspect of possession is irrelevant in the light of the Full Bench decision in Sada v. Tahsildar, Utnoor, AIR 1988 AP 77 (FB), and this aspect was not considered by the Court below. The learned Counsel also had contended that one of the heirs of Sai Reddy i. e. , Venkat Reddy died even prior to the disposal of the appeal and without bringing on record the legal representatives of Venkat Reddy an adverse order affecting the rights of the heirs of Venkat Reddy cannot be passed. The learned Counsel also had strenuously contended that the appeal itself was preferred before the Joint Collector after a long lapse of 19 years; though period of limitation is not specified, the right of appeal should be exercised within a reasonable time and on this ground also the impugned order is liable to be set aside. The learned Counsel had placed strong reliance on a decision of the Supreme Court in Ponnala Narsing Rao v. Nallolla Pantaiah, (1998) 9 SCC 183 . ( 6 ) SRI K. Mahipathi Rao, the learned Counsel representing the respondents, had drawn my attention to Sections 38-E, 38-7 (c), Section 40 and other provisions of the Act and had contended that in view of the fact that the parties who were in actual possession of the property had been kept in darkness and no notice was given to them, even by the Revenue Divisional Officer, though even in the year 1975 they have been in possession of the property, the very order of the Revenue Divisional Officer granting certificate is illegal and the same is vitiated. Since the limitation commences only from the date of knowledge, the respondents had preferred the appeal in time and even otherwise when once the appellate authority had entertained an appeal after time, it must be presumed that such authority before entertaining it, was satisfied that there was sufficient cause for delay, even if there was delay and when a question regarding limitation was decided in appeal, there is no question of again re-agitating the matter in the present revision. The learned Counsel had placed reliance on a decision of this Court in Gondla Jangaiah v. Md. Abdul Khader, 1971 (2) ALT 10 (NRC ). The learned Counsel also had pointed out that though sufficient opportunity was given to the revision petitioners, the impugned order was made only after hearing the arguments and perusing the records and hence the impugned order cancelling the 38-E Certificate does not suffer from any illegality and the revision petition is liable to be dismissed. ( 7 ) HAVING heard the learned Counsel for the parties and having perused the material available on record, at the outset I may point out that the appellate authority while deciding the matter had observed as follows: "the Counsel for the respondents has not filed counter to the appeal memo. As per the docket sheet neither the respondents nor their Counsel have attended the hearing dates since 1994 despite service of notice. This case came up finally for hearing on 12. 12. 1998 in the presence of Sri Umapathy, learned Counsel for the appellants. The Counsel for the respondents not present. He has received the notice of final hearing but inspite of that he has failed to attend the case. " having recorded so, the appellate authority had further proceeded with the matter and had decided observing as follows: "the issue in this case is whether 38-E Certificate issued to P. Ts is valid or not. As per the lovver Court record, Sri Itta Kistamma, Dharma Reddy and Yella Reddy heirs of Itta Narsimha Reddy are the land holders and late Sai Reddy was P. T. of land bearing S. No. 117 extent 17 acres 30 guntas situated in the limits of Chinna Mandadi village ofpedda Mandadi Mandal. As per the lovver Court record, Sri Itta Kistamma, Dharma Reddy and Yella Reddy heirs of Itta Narsimha Reddy are the land holders and late Sai Reddy was P. T. of land bearing S. No. 117 extent 17 acres 30 guntas situated in the limits of Chinna Mandadi village ofpedda Mandadi Mandal. As per the Column No. 15 of certified copy of Khasra Pahani, it is clearly recorded that P. T. is "bedakhal" since two years and the names of the land holders are recorded in possession column of the suit land. So, it clearly reveals that the P. T. has surrendered his P. T. rights. Further as per the certified copies of the pahanies for the years 1955-56, 1956-57 and 1957-58, the P. T. or his heirs not to be seen in possession of the suit lands and entries recorded in Column No. 13 as "p. T. is bedakhal since two years". As per the certified copy of pahanies for the years 1972-73, 1974-75, 1975-76, 1976-77, 1977-78, 1978-79, 1983-84, 1984-85, 1989-90, 1990-91, 1991-92, the P. T. and his L. Rs. are not in possession over the suit lands. Further, the suit land was purchased by the appellants herein on 7. 10. 1971 from the original land holder, which shows that as on the notified date either Etta Nagi Reddy or his L. Rs. are not the land holders. Thus the 38-E Certificate issued by the Addl. Revenue Divisional Officer, Gadwal to legal heirs of the P. T. late Sai Reddy in respect of suit land is wrong and needs to be cancelled". ( 8 ) FROM the impugned order it is no doubt clear that the appellate authority was more guided by the aspect of possession while deciding whether the protected tenancy certificate under Section 38-E of the Act is liable to be cancelled or not. In Sada v. Tahsildar, Utnoor (supra), the Full Bench was pleased to observe that a person who holds the land as protected tenant if he is still a "protected tenant on the notified date, though out of possession and as long as his right as protected tenant has not been determined by the date of notification, in a manner known to the Act, he "holds" the land as protected tenant, whether physically in possession or not. No doubt, Sri Mahipathi Rao had stressed on the aspect that several pahanies which had been referred to in the impugned order clearly suggest that the protected tenancy was surrendered long back by the said Sai Reddy. Be that as it may, unfortunately, there is an anomalous situation since Venkat Reddy, one of the heirs of Sai Reddy, in whose favour also the protected tenancy certificate was granted by the Revenue Divisional Officer, died even prior to the pronouncement of the order in the appeal. Evidently, since this fact was not brought to the notice of the appellate authority, the appellate authority had passed an adverse order against not only the revision petitioners but also the said Venkat Reddy and in the absence of the heirs of Venkat Reddy on record, the order of the appellate authority is vitiated. Apart from this aspect of the matter, there is yet another important aspect that in the year, 1975 though by virtue of a Registered Sale Deed the respondents had been and continue to be in possession of the property, they were not heard in the matter before passing the order. Thus, from the material on record, both the orders appear to be vitiated and are erroneous. Here itself I may mention that the revision petitioners had not been diligent in prosecuting the litigation for reasons best known to them, as observed by the appellate authority. ( 9 ) AS far as the aspect of limitation is concerned, since the appellate authority had entertained the appeal, it should be taken that the appellate authority was satisfied relating to the delay and had entertained the same. Hence, in the facts and circumstances of the case, especially in the light of the fact that Venkat Reddy died and his heirs were not brought on record while making an adverse order as against such a dead party also, I am inclined to set aside the impugned order and remit the matter back to the appellate authority to decide the matter afresh after issuing notice to the heirs of Venkat Reddy also. However, it is made clear that since the appeal had been entertained already by the appellate authority, it should be taken that the appellate authority had exercised its discretion in entertaining the appeal and hence as far as the ground that the appeal was entertained after long lapse of time is no longer available to the revision petitioners. However, all the other questions are left open and the appellate authority after issuing notice to all the aggrieved parties including the heirs of the deceased Venkat Reddy, shall decide the matter afresh. ( 10 ) THE civil revision petition is allowed and the matter is remitted back for the purpose indicated above. In the facts and circumstances of the case, no order as to costs.