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2006 DIGILAW 1429 (AP)

Lakshmi Bai v. Pedda Lakshman (died) per L. Rs.

2006-11-17

V.V.S.RAO

body2006
ORDER The Civil Revision Petition is filed under Section 90 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (hereafter called, the Tenancy Act) against the order of the Joint Collector, Nizamabad in case No.F1/1113/2003, dated 15-5-2005, whereby and whereunder the appellate authority, namely, the Joint Collector, disposed of the appeal filed by Peda Laxman (father of respondents 1 and 2 herein) and the third respondent in their favour, while setting aside the order of the Revenue Divisional Officer (RDO), dated 7-12-1998, by which the claim of the respondents for ownership certificate under Sections 35 and 37 of the Tenancy Act was rejected. 2. The factual matrix necessary to appreciate the contentions raised in the Civil Revision Petition may be noticed. The land admeasuring Acs. 17-08 guntas in survey Nos.25, 148, 192 and 341 situated at Rampoor village of Bodhan Mandal in Nizamabad District (hereafter called, the petition schedule land) was the absolute property of Narsa Reddy, father-in-law of the petitioner. After death of Narsa Reddy, the petitioners husband Vithoba succeeded to the property and died issueless sometime in 1950. He had a widow sister Rukma Bai. They were staying together. Along with her, Narsu Bai, daughter of Peda Narsa Reddy (brother of father-in-law of the petitioner) was also staying with them. At that time, the father of respondents 1 and 2 herein was Patwari of the village. It appears during settlement survey and preparation of Khasra Pahani, the name of the petitioner, Rukma Bai and Narsu Bai were entered in the owner/possessor column. Narsu Bai died in 1967. But, the Patwari allegedly interpolated the entries in the Pahani. The petitioner was dispossessed by reason of such entries. She filed a suit for possession in O.S.No.14 of 1969 on the file of the Court of the Subordinate Judge, Nizamabad, which was decreed. On 30-03-1974, in reply to a legal notice, Patwari Peda Lasman claimed that Narsu Bai had executed a Will, dated 14-06-1967 bequeathing petition schedule property to him. The petitioner therefore filed another suit being O.S.No. 24 of 1978 on the file of the Court of the District Judge, Nizamabad for declaration and recovery of possession. In the said suit, Peda Laxman and third respondent were defendants. The petitioner therefore filed another suit being O.S.No. 24 of 1978 on the file of the Court of the District Judge, Nizamabad for declaration and recovery of possession. In the said suit, Peda Laxman and third respondent were defendants. They opposed the suit inter alia alleging that Sayanna, father of Peda Laxman ad China Laxman, was assisting Narsu Bai, the alleged owner of the lands, that she executed Will on 14-06-1967 and that they perfected the title by adverse possession having been allegedly in possession for over thirty years. The learned trial Judge dismissed the suit on 24-1 0-1978. 3. The petitioner herein preferred appeal to this Court being A.S.No.632 of 1979. This Court while allowing appeal on 10-06-1997 came to the conclusion that Narsu Bai .had no pre-existing right, title and interest in the property and could not have executed a Will in favour of Peda Laxman and China Laxman. This Court also observed that the plea of adverse possession cannot be accepted and accordingly reversed the Judgment of the lower Court decreeing the suit in favour of the petitioner herein. The third respondent and father of respondents 1 and 2 further carried the matter by filing an appeal being L.P.A. NO.1 of 1988 before the Division Bench. At this stage, they filed two miscellaneous applications, one seeking amendment of the plaint to the effect that they are protected tenants of the land and the other miscellaneous application for filing documents - protected tenancy certificates - as additional evidence. By Judgment, dated 23-08-1995, the Division Bench dismissed L.P.A.No. 1 of 1988 as well as two miscellaneous applications observing that it shall be open to the respondents herein to pursue remedies available under the Tenanacy Act. The respondents then filed application before the Revenue Divisional Officer on 29-01-1996 under Sections 35 and 37 of the Tenancy Act for petition schedule land. 4. While the tenancy application was pending before the appropriate forum, the petitioner herein filed E.P.No. 12 of 1997 before the Court of District Judge, Nizamabad seeking delivery of possession. The said Court issued warrant of delivery on 25-06-1997 by reason of which the Court Bailiff handed over possession to the petitioner on 28-06-1997. Again when there was interference, the petitioner filed a suit for injunction being O.S.No. 56 of 1997 and obtained ad interim injunction on 12-12-1997 in I.A.No. 587 of 1997. The said Court issued warrant of delivery on 25-06-1997 by reason of which the Court Bailiff handed over possession to the petitioner on 28-06-1997. Again when there was interference, the petitioner filed a suit for injunction being O.S.No. 56 of 1997 and obtained ad interim injunction on 12-12-1997 in I.A.No. 587 of 1997. In the said suit, the father of respondents 1 and 2 and the third respondent herein were shown as defendants. Be that as it is, the petitioner appears to have approached the Mandal Revenue Officer (MRO) for mutation and the same was granted on 30-05-1998 in accordance with Judgment of the learned single Judge in A.S.No. 632 of 1979 as confirmed in L.P.A.No. 1 of 1988. 5. The RDO after conducting enquiry into the tenancy application made by respondents under Sections 35 and 37 of Tenancy Act dismissed the same on 7 -12-1998 relying on Judgment in A.S.No. 632 of 1979. Aggrieved by order of the RDO, dated 7-12-1998. respondents filed appeal before the Joint Collector, which was allowed on 1-08-2000. The petitioner herein filed C.R.P.No. 3249 of 2000 before this Court under Section 91 of the Tenancy Act. By order, dated 27 -12-2002, this Court allowed the Civil Revision Petition and remitted the matter to the Joint Collector for fresh consideration. Thereafter, the Joint Collector passed impugned order, dated 15-05-2005 holding that Savanna was protected tenant and his sons are entitled to inherit tenancy rights. While doing so, in his brief order, the Joint Collector without going to the earlier litigation in the civil Court and without giving any reasons observed as under: on the respective pleadings of the counsel for the appellants and respondents, the point arises for consideration. 1. Whether Sayanna was the protected tenant of the lands under appeal. 2. Whether the appellants are entitled to transfer of protected tenant rights of their father or not. on perusal of Khasra pahani for the year 1954-55, the Sy.Nos.25,148, 192 and 341 of Rampoor village stands patta in the name of Narsu Bai and Sayanna, s/o Chinnaiah as tenant. Accordingly, the Tahsildar has issued the tenancy certificates to Sayanna, s/o Chinnaiah under Sections 35 and 37 of· the Hyderabad Tenancy and Agricultural Lands, Act, 1950. on perusal of Khasra pahani for the year 1954-55, the Sy.Nos.25,148, 192 and 341 of Rampoor village stands patta in the name of Narsu Bai and Sayanna, s/o Chinnaiah as tenant. Accordingly, the Tahsildar has issued the tenancy certificates to Sayanna, s/o Chinnaiah under Sections 35 and 37 of· the Hyderabad Tenancy and Agricultural Lands, Act, 1950. Since tenancy certificates were given as long back as 1952 as the protected tenant under the Hyderabad Tenancy and Agricultural Lands Act, 1950 and therefore, he can safely be deemed to be the protected tenant for the purpose of Section 34 of the A.P. (T.A.) Tenancy and Agricultural Land Act, 1950. As far as point No.2, it is very clear that u/s 40(i) and (ii) of the A.P. (T.A. ) Tenancy l and Agricultural Lands Act, 1950 contemplating that all rights of a Protected Tenant shall heritable. If a Protected Tenant dies his heirs shall be entitled to hold the Tenancy on the same terms and conditions on which Protected Tenant holding the lands at the time of his death. 6. Learned counsel for the petitioner submits that the order passed by the appellate authority under Section 91 of the Tenancy Act is erroneous as it is passed in ignorance of decree granted by this Court. Secondly, he submits that the application is filed by respondents under Sections 35 and 37 of the Tenancy Act, which do not deal with the power of the RDO to put back the alleged protected tenant in possession of property. He points out that though initially the RDO rejected the application as not maintainable, for that reason and as C.R.P.No. 3249 of 2000 was allowed and the matter was remanded, the respondents did not take any steps to file an application either under Section 32 or 38-E(2).of the Tenancy Act. Therefore, the appellate authority ought not to have entertained the application. The impugned order without any proper reasons is unsustainable and the Joint Collector ignored decision of this Court in Prabhulirigam V.Y. Ramiah. He also relied on Devavathi Namya v. Gurukul Trust, Ghatkesal in support of the contention that unless a person proves that he was dispossessed as protected tenant, the Tenancy Act has no application. 7. The impugned order without any proper reasons is unsustainable and the Joint Collector ignored decision of this Court in Prabhulirigam V.Y. Ramiah. He also relied on Devavathi Namya v. Gurukul Trust, Ghatkesal in support of the contention that unless a person proves that he was dispossessed as protected tenant, the Tenancy Act has no application. 7. Learned counsel for respondents does not seriously dispute or deny that the copies of the Judgments in O.S.No.14 of 1969, O.S.No.24 of 1978, A.S.No. 632 of 1979 and L.P.A.No. 1 of 1988 were not placed before the appellate authority. He points out that there was sufficient material before Joint Collector to come to the conclusion that Sayanna, the predecessor of respondents, was protected tenant and certified as such by the then Tahsildar, Bodhan. According to the learned counsel, the protected tenant who is not in possession of the land is still entitled for certificate under Section 38-E of the Tenancy Act. Reliance is placed on Sada v. Tahsildar, Utnoor. 8. The point that arises for consideration is whether impugned order is vitiated by illegality or material irregularity. 9. The Tenancy Act makes a distinction between "tenants" and "protected tenants". Section 2(1)(v) of the Tenancy Act defines tenant means an asami shikmi who holds land on lease and includes a person who is deemed to be a tenant under the provisions of the Tenancy Act. Section 2(1)(r) defines the term protected means a person who is deemed to be a protected tenant under thy provisions of the Tenancy Act. Chapter III (Sections 5 to 33) deals with tenants, whereas Chapter IV (Sections 34 to 46) deals with protected tenants. Section 5 of the Tenancy Act reads as under. 5. Persons deemed to be tenants. Section 2(1)(r) defines the term protected means a person who is deemed to be a protected tenant under thy provisions of the Tenancy Act. Chapter III (Sections 5 to 33) deals with tenants, whereas Chapter IV (Sections 34 to 46) deals with protected tenants. Section 5 of the Tenancy Act reads as under. 5. Persons deemed to be tenants. A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the landholder and if such person is not- (a) a member of the landholders family, or (b) a servant on wages payable in cash or kind, but not in crop share or a hired labourer cultivating the land under the personal supervision of the landholder or any member of the landholders family, or (c) a mortagagee in possession; Provided that if upon an application made by the landholder within one year from the commencement of this Act to the Tahsildar within whose jurisdiction the land is situate - (a) The Tahsildar declares that such person is not a tenant and his decision is not reversed on appeal or revision, or (b) The Tahsildar refuses to make such declaration but his decision is reversed on appeal or revision, such person, shall not be a tenant: Provided further that a sub-tenant cultivating any land belonging to another person on the day on which the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands (Second Amendment) Act, 1951, came into force shall, notwithstanding the fact that the creation of the sub-tenancy might have been prohibited by any law for the time being in force, be deemed to be lawfully cultivating the land as a tenant for the purposes of this section. 10. Sections 5, 7 and 8 of the Tenancy Act contain three different categories of tenants. 10. Sections 5, 7 and 8 of the Tenancy Act contain three different categories of tenants. These are (i) a tenant who is cultivating land which is not personally cultivated by the landholder or a person declared as a tenant by the Tahsildar, not being a member of the landholders family or a servant for wages in cash or kind; (ii) a person who has taken lease of the land equal to or less than three times the area of the family holding4 for a period of five years renewable quinquennially, and (iii) a tenant who has taken lease within three years from the commencement of the Act, which are extended for ten years. These" ordinary tenants are given protection as contemplated under Section 19 of the Tenancy Act and lease cannot be determined or surrendered unless the tenant admits before the Tahsildar of such surrender. However, a tenant from a dwelling house shall not be evicted unless conditions mentioned in Section 20 of the Tenancy Act are complied with. The tenant is given the right of pre-emption in the event of sale by the landholder and when once an order of eviction is passed, procedure under Section 32 of the Tenancy Act applies. 11. The protected tenants are dealt with in Sections 34, 37 and 37 -A of Chapter IV of the Tenancy Act. A person who held the land continuously for a period of not less than six years, being a period wholly included in Fasli years 1343-1352; a person holding the land for a period of not less that six years immediately preceding 1-1-1948 or a person who is tenant for a period of six years commencing not earlier than 1st of the Fasli year, 1353 and completed before the commencement of the Tenancy Act and who is cultivating personally during the period is distinguished as a protected tenant. Therefore, all protected tenants are certainly be the tenants, but all the tenants are not protected tenants under the provisions of Sections 34,37 and 37 -A of the Tenancy Act. The lessee or a person who is deemed to be tenant under Sections 5,7 and 8 of the Tenancy Act may apply to the Tahsildar for declaration as to whether such person is a protected tenant or not. The lessee or a person who is deemed to be tenant under Sections 5,7 and 8 of the Tenancy Act may apply to the Tahsildar for declaration as to whether such person is a protected tenant or not. A tenant has to make such application within one year from the date of commencement of the Tenancy Act, i.e., 10-06-1950. 12.What is the benefit conferred by the Tenancy Act on protected tenants? As noticed from various provisions in Chapter III, a tenant continues to be tenant and he has no right to compel the landholder to sell the land to the tenant. In the case of a protected tenant, however, he has two ways of acquiring absolute title to the land and (sic. under) tenancy. Under Section 38 of the Tenancy Act, a protected tenant can file application before the Tenancy Tribunal expressing his willingness to pay for the landholders interest and when once the Tribunal decides the amount of reasonable price for such purchase, where upon the tenant deposits the same, the landholder has no choice except to part with the land. . The landholders can also relinquish the land in favour of protected tenants under Section 38-B of Tenancy Act. Apart from this, A.P. (Telangana Area) Tenancy and Agricultural Lands (Amendment) Act, 1971 (A.P.Act NO.15 of 1971) introduces Section 38-E which transferred the right of a protected tenant to purchase from the landholder into ownership right with effect from the date of coming into force of A.P.Act No. 15 of 1971. The ownership of all tenanted lands shall vest in the protected tenant holding the land or those protected tenants were deemed to have been held such lands. Even if a person who claims to be protected tenant is not in possession of the tenanted land, the same has no effect on Section 38-E(1) of the Tenancy Act, which converts the tenancy into absolute right vesting in the tenant. 13. In Sada v. Tahsildar, Utnoor (3 supra), Full Bench held that restoration of possession to the protected tenant under the Explanation to Section 38-E(1) of the Tenancy Act is not a condition precedent for grant of ownership certificate. It was further held as under. For purposes of S.38E(1) the protected tenant should not have validly surrendered his tenancy rights by the date of notification under S.38E(1). It was further held as under. For purposes of S.38E(1) the protected tenant should not have validly surrendered his tenancy rights by the date of notification under S.38E(1). But if he had voluntarily surrendered his rights prior to 4-2-1954 (the date of the 1954 amendment) and put the landholder in possession, be it without the intervention of the Tahsildar, he could not claim any rights of ownership under S.38E(1) upon the issue of the notification. Likewise, if the surrender was after 4-2-1954 and before the date of notification under S.38E(1) and such surrender satisfied the requirements of S.19 and was a valid surrender, the protected tenant could not claim ownership rights. If, however, there was no valid Surrender whether before (being not voluntary but forcible) or after (being not in conformity with S.19), the protected tenant had a right to be put back in possession under S.32 as stated in Venkanna v. Buchamma and such protected tenants, (if they had not otherwise lost their status under S.32 of 44 by the notified date) would be entitled to ownership rights under S.38E(1) and would be entitled to the ownership certificate under S.38-E(2). In cases where proceedings under S.19 are pending on the date of notification and end in favour of the protected tenant thereafter, the date of vesting gets postponed till the said decision. 14. Therefore, the crucial test to confer any benefit under the Tenancy Act is to see whether a person is a tenant of the landholder and whether such tenant is the protected tenant under Sections 34, 37 and 37 -A of the Tenancy Act. Unless these are satisfied application of a person either under Sections 32, 37, 38-E, 38-E (2) and/or 98 of the Tenancy Act can (sic. cannot) be maintained. While applying the test can the competent authority ignore the finding of a civil Court? As already noticed, if a Tahsildar declares a person as not tenant under Section 5 (a) of the Tenancy Act, such person shall not be a tenant. When a civil Court declares a person not to be tenant or not be in possession, such finding must be held to be equally binding on his legal heirs or persons claiming rights through them. This was considered by this Court in Prabhulingam (1 supra), wherein it was laid down as under. When a civil Court declares a person not to be tenant or not be in possession, such finding must be held to be equally binding on his legal heirs or persons claiming rights through them. This was considered by this Court in Prabhulingam (1 supra), wherein it was laid down as under. It is, therefore, clear that in the present case also the dispute between the petitioner and the respondents who were setting up rival claims relating to the title of the disputed land cannot be settled, decided or dealt with by any of the Tribunals under any provisions of the Tenancy Act and that inasmuch as such dispute is of civil nature, it can be decided only by a Civil Court. Therefore, the contention of the learned counsel for the respondents that the Civil Court has no jurisdiction to decide the dispute between the parties and that the plea of adverse possession is not open to the petitioner, cannot be accepted. In the present case, the same dispute which is of civil nature arose between the same parties in the prior civil suit and the rights of the respondents for the eastern half of the land in Sy. No.1 were negatived and acquisition of title by adverse possession by the petitioner was specifically upheld is that civil litigation between the parties. Such findings of the Civil Court, which have become final; are binding upon them and as such the respondents cannot be granted any ownership certificate under Section 38-E of the Tenancy Act relating to the eastern half of the land in Sy.No.1, which alone is in dispute in the present proceedings. 15. Section 32 of the Tenancy Act gives a right to the tenant to get back possession of the land from which he was dispossessed. The said provision does not contain any time limit. Interpreting the same, the Supreme Court in Ponnala Narsing Rao v. Nallolla Pentaiah, laid down that, "though no express period of limitation is provided for final application under Section 32 of the Tenancy Act, such applications have to be moved within reasonable time and that belated applications should not be entertained by the authorities under the Act". It is apposite to extract the following observations. It is apposite to extract the following observations. So far as the second contention is concerned, it is true that though no express period of limitation is provided for filing application under Section 32 of the Act, such applications have to be moved within reasonable time. It may be because of such belated applications, the other side may stand adversely affected. It may have changed its position in the meantime. Equities may have arisen in his favour, he may have spent large amounts on land by improving it. But all these questions have to be pleaded and proved. Surprisingly, no such contention was ever canvassed much less tried to be proved on any equitable ground by the petitioner. Therefore, this second contention on the facts of the present case cannot be sustained. It has also to be noted that no plea of adverse possession was put forward by the petitioner in support of his case. 16. In this case, Peda Laxman and China Laxman claimed that petition schedule land was owned by Narsu Bai, daughter of Peda Narsa Reddy, who was taking help from Sayanna for cultivation. It is also their case that Narsu Bai executed a Will on 14-06-1967 in their favour bequeathing all the land. In addition they also pleaded that they have perfected the title by adverse possession. The High Court did not accept this plea while decreeing the suit filed by the petitioner for declaration of title. The RDO while rejecting the application of the petitioners under Section 35 of the Tenancy Act referred to these proceedings. Curiously, the appellate authority ignored earlier Judgments of the civil Court as well as this Court and basing on the alleged tenancy certificate issued by Tahsildar in one go came to the conclusion that Sayanna - predecessor of respondents; was the tenant under the Tenancy Act. The approach of the appellate authority has to. be faulted. The entire material has not been discussed, proper reasons are not given and even a reference to the orders relied on is not made. Therefore, the impugned order cannot be sustained. This Court is of considered opinion that the matter requires fresh consideration in the light of the various Judgments referred to herein while applying the important tests as pointed out by this Court. 17. Therefore, the impugned order cannot be sustained. This Court is of considered opinion that the matter requires fresh consideration in the light of the various Judgments referred to herein while applying the important tests as pointed out by this Court. 17. In the result, for the above reasons, the Civil Revision Petition is allowed and the impugned order of the Joint Collector, Nizamabad, in Case No.F1/1113/2003, dated 15-05-2005 is set aside. The matter is remitted to the Joint Collector, Nizamabad with a direction to issue notice to both the parties, hear the arguments again permitting the parties to file additional evidence, if any, and then pass orders keeping in view the material as well as the cases decided by this Court on the points, which airse for consideration. There shall be no order as to costs.