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2011 DIGILAW 44 (AP)

Rachappa v. Bhumani Hanumaiah

2011-01-25

B.CHANDRA KUMAR

body2011
Judgment : 1. This revision is directed against the orders dated 24.10.2005 of the Joint Collector-I, Ranga Reddy District, made in Case No.F2/6148/2003, confirming the orders passed by the Mandal Revenue Officer, Dharur Mandal, in File No.B/2374/2000, dated 02.07.2003, granting succession of P.T rights, under Section 40 of the A.P (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short ‘the Act’), in favour of the respondents herein. 2. The brief facts of the case are as follows. The respondents herein, namely Bhumani Hanumaiah and Bhumani Chinnayya, claim to be the sons of late Chinna Yellappa, filed an application under Section 40 of the Act, seeking succession certificate on the ground that their father was the protected tenant in respect of the land bearing Survey No.2 (old), corresponding new survey No.4, admeasuring Ac.6-12 gts., situated at Gaddamedi Gangaram village, Dharur Mandal, Ranga Reddy District. The petitioner herein, claiming to be the purchaser of the petition schedule property from the original pattadar through the sale deed dated 17.04.1970, filed objection petition contending, inter alia, that Bhumani Hanumaiah and Bhumani Chinnayya are not the sons of Chinna Yellappa and that they are the sons of one Lingappa. It appears that the Mandal Revenue Officer had issued notices on 14.02.2001, 07.04.2001 and on 29.04.2002, but there was no response from the petitioner and the respondents herein only attended the office of the Mandal Revenue Officer. Then the Mandal Revenue Officer has called for a report from the Assistant Mandal Revenue Inspector, Dharur, who conducted local enquiry and panchanama in the presence of villagers and reported that one Bhumani Chinna Yellappa was the protected tenant over Survey No.2, admeasuring Ac.6-12 gts., of Gaddamedi Gangaram village, and that he expired leaving behind him his legal heirs Bhumani Hanumaiah and Bhumani Chinnayya. Then the Mandal Revenue Officer, after examining the revenue records i.e., khasra pahanis for the year 1954-55 of Gaddamidi Gangaram village and having satisfied that one Smt. Vittamma was the pattedar of the land admeasuring Ac.6-12 gts., in Survey No.2 and as per Khoul certificate No.712, dated 21.11.1954, said Vittamma gave the said land for khoul to Bhumani Chinna Yellappa as noted in Column No.15 of Khasra Pahani, came to the conclusion that Bhumani Yellappa was the protected tenant and Bhumani Hanumaiah and Bhumani Chinnayya are the legal heirs of said protected tenant. Accordingly, he has granted succession in favour of Bhumani Hanumaiah and Bhumani Chinnayya, the respondents herein. Challenging the same, the petitioner herein filed an appeal before the Joint Collector, Ranga Reddy District. The learned Joint Collector, having gone through the entire record, came to the conclusion that the protected tenant has not surrendered his rights and there is no surrender in writing and that the revenue records show that B. Rachappa was the protected tenant. It is also noted that the father of the petitioner herein himself was the Patwari of the village during the relevant period and that he had shown the name of the petitioner as parallel cultivator and therefore the same cannot be accepted. Challenging the said order the present revision has been filed. 3. The main contention of Sri S. Balchand, learned counsel for the petitioner, is that the respondents herein do not come under the purview of sub-section (2) of Section 40 of the Act, since they were not holding the land at the time of death of Chinna Yellappa as his heirs. It is also his submission that the Joint Collector or the Revenue Divisional Officer or the Mandal Revenue Officer are not empowered to decide the disputed questions of succession to protected tenancy. He has relied on the judgments reported in Syed Abdul Majeed @ Mia Pasha v. Joint Collector-II, Ranga Reddy District 2006-ALT-5-754 and OmPrakash Agarwal v. Joint Collector, Adilabad 1997-ALD-5-316. The only point that arises for consideration is whether the Mandal Revenue Officer, Dharur, is empowered to issue succession certificate or not. 4. As far as the decision in Om Prakash Agarwal v. Joint Collector, Adilabad (2 supra) is concerned, the person who claimed to be the son of the protected tenant was not the son of the original tenant and that the original protected tenant died issueless and whether one Thadaka Pothanna is adopted son of late protected tenant or not is the issue and no evidence was adduced in support of the claim of Thadaka Pothanna. It was held that the burden is heavy on the second respondent (Thadaka Pothanna) to prove his contention and in such circumstances he should have approached a competent Civil Court seeking declaration under the provisions of the Hindu Adoptions and Maintenance Act, 1956. So validity of adoption was in question in that case. 5. It was held that the burden is heavy on the second respondent (Thadaka Pothanna) to prove his contention and in such circumstances he should have approached a competent Civil Court seeking declaration under the provisions of the Hindu Adoptions and Maintenance Act, 1956. So validity of adoption was in question in that case. 5. Therefore, the facts of that case are not applicable to the facts of the present case. 6. Section 40 of the Act is as follows. 40. Rights of protected tenant heritable:-(1) All rights of a protected tenant shall be heritable. (2) If a protected tenant dies, his heir or heirs shall be entitled to hold the tenancy on the same terms and conditions on which such protected tenant was holding the land at the time of his death and such heirs may, notwithstanding anything contained in this Act, sub-divide inter se according to their shares the land comprised in the tenancy to which they have succeeded. (3) If a protected tenant dies without leaving any heirs, all his rights shall be extinguished. Explanation :- The following persons only shall be deemed to be the heirs of a protected tenant for the purposes of this section:- (a) his legitimate lineal descendants by blood or adoption; (b) in the absence of any such descendants, his widow for so long as she does not remarry: (4) The interest of a protected tenant in the land held by him as a protected tenant shall form sixty per cent. Section 99 of the Act is as follows. 99. Bar of jurisdiction:- (1) Save as provided in this Act no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or deal with by the Tahsildar, Tribunal or Collector or by the Board of Revenue or Government. (2) No order of the Tahsildar, Tribunal or Collector or of the Board of Revenue or Government made under this Act, shall be questioned in any Civil or Criminal Court. 7. (2) No order of the Tahsildar, Tribunal or Collector or of the Board of Revenue or Government made under this Act, shall be questioned in any Civil or Criminal Court. 7. When there is a dispute between the persons who are claiming ownership rights as protected tenants and a person who is a third party claiming rights to the same land by virtue of a sale deed or an agreement of sale, all such disputes have to be decided under the provisions of the Act, and whether the persons claiming to be the protected tenants or their father was a protected tenant or not, whether he was in possession of the property or not or whether the persons who are claiming to be the sons of the protected tenant were in possession of the land as on the date of death of the original tenant or not, all such questions have to be decided by the Tahsildar. This point was decided by the Full Bench of this Court reported in Prabhulingam v. Ramaiah 1997(4) ALT 376 . 8. In case between Venkataramayya v. Guruviah 1961(1) An.W.R. 120, it was held that “the scheme of the Act is to regulate the relationship between the landholders and tenants and it does not affect the rights inter se between the parties setting up rights of ownership to a particular land or a dispute between a owner and a trespasser or a person other than a tenant”. It is further observed that “we may in this connection like to mention that where a Special Tribunal is created by an Act for purposes of determining as to the rights which are creations of the Act, then the jurisdiction of that Tribunal is exclusive unless provided otherwise and the Civil Courts cannot take cognizance of such matter. But where the subject matter of the suit falls outside the exclusive jurisdiction of the Special Tribunal, the jurisdiction of the Civil Court always remains, provided the suit is of a civil nature”. 9. In case between Hanmanth Reddy v. K. Nagamma 1983 (1) ALT 199, it was observed as follows. But where the subject matter of the suit falls outside the exclusive jurisdiction of the Special Tribunal, the jurisdiction of the Civil Court always remains, provided the suit is of a civil nature”. 9. In case between Hanmanth Reddy v. K. Nagamma 1983 (1) ALT 199, it was observed as follows. “It is well settled that where a Special Tribunals is created by an Act of Legislature for the purpose of determining the rights created by the statute and finality is given to the orders of the Tribunal, the jurisdiction of a Civil Court must be considered to be excluded with regard to those matters. But, where the relief sought in a suit is one which the Special Tribunal is incapable of granting, the jurisdiction of the Civil Court is not ousted merely because the question which has to be incidentally decided is a question within the competence of a Special Tribunal.” 10. Merely because it is disputed that the persons claiming to be the sons of the protected tenant are not the sons the jurisdiction of the Tribunal (MRO) is not lost. 11. Section 87 of the Act deals with the Constitution of Tribunals. Sub-section (4) of Section 87 of the Act is as follows. (4) In any area for which a Tribunal has been constituted under sub-section(1), all the powers and duties conferred and imposed on the Tribunal by or under this Act shall be exercised and discharged by the Deputy Collector or by such other officer as Government may authorise in this behalf. 12. Section 88 of the Act is as follows. 88. Additional functions of Tahsildar, Tribunal and Collector and vesting of powers in a Village Panchayat or a Co-operative Farming Society:- (1) The Tahsildar, the Tribunal and the Collector shall, in addition to exercising the powers and discharging the duties conferred upon them by any provision of this Act, perform such other function in relation to this Act as may be prescribed and shall decide such other questions as may be referred to them by Government. (2) The Government may by notification in the Official Gazette vest in any other officer or authority such as a village Panchayat or a Co-operative Farming Society any of the powers or duties conferred by or under this Act on the Tahsildar, the Deputy Collector or the Collector. 13. Section 90 deals with the appeals and revisions. (2) The Government may by notification in the Official Gazette vest in any other officer or authority such as a village Panchayat or a Co-operative Farming Society any of the powers or duties conferred by or under this Act on the Tahsildar, the Deputy Collector or the Collector. 13. Section 90 deals with the appeals and revisions. Section 91 deals with the revisions. 14. A reading of the above provisions make it crystal clear that the Mandal Revenue Officer or the concerned revenue authority is empowered to issue succession certificate under Section 40 of the Act. However where a person claims to be an adopted son of the protected tenant or where there is a serious dispute with regard to the extent of share among legal heirs of tenant or where the status of a woman as a wife of protected tenant is in dispute or where the genuineness of a Will is in question in such cases, the Tahsildar may direct the parties to approach the Civil Court and seek a declaration. 15. In this case, as seen from the order of the Tahsildar, he did not conduct any enquiry by himself. He has simply referred the report submitted by the Assistant Mandal Revenue Inspector. Enquiry means a fair enquiry to be conducted by the authority itself. In view of the same, I am of the view that the impugned orders are not sustainable and the matter is required to be reexamined by the primary authority. 16. Accordingly, the revision petition is allowed and the matter is remanded to the Mandal Revenue Officer, Dharur Mandal, with a specific direction to issue notices to all the parties and to direct them to adduce necessary evidence. It is for the persons who are claiming to be the legal heirs of the protected tenant to adduce necessary evidence to show that they are the sons of the original protected tenant and the opposite party should be given an opportunity to lead contra evidence. After adducing evidence and after verification of the records, if it appears that complicated questions of civil nature with regard to admissibility of any document such as adoption deed or Will Deed etc., are required or the dispute is of pure civil nature then the Mandal Revenue Officer may direct the parties to approach the Civil Court for seeking necessary declaration. 17. 17. At this stage, Sri S. Balchand, learned counsel for the petitioner, has brought to the notice of this Court that the concerned revenue authorities have refused to issue him the certified copies of Pahanis for the years 1950-51, 1951-52 and 1952-53 in respect of Survey No.2 (old) corresponding new Survey No.4, admeasuring Ac.6-12 gts., situated at Gaddamedi Gangaram village, Dharur Mandal (the land in dispute). It is the responsibility of the revenue officers to trace out the record and furnish the copies. Justice has to be done to the parties and for rendering justice the officers must be fair to search the record and also to give copies of those records to the parties. 18. Subject to the observations made supra the revision petition is allowed. No costs.