Andhra HC (Pre-Telangana)
Mohd. Qutubuddin vs Aziz Khan And Anr. on 15 March, 2002
Equivalent citations: 2002AIHC4073, 2002 A I H C 4073, (2002) 2 LACC 595 (2004) 7 ANDH LT 69, (2004) 7 ANDH LT 69
JUDGMENT B.S.A. Swamy, J.
1. These two appeals involving common questions of law and facts arise out of a common judgment passed by a learned single Judge of this Court and they can be disposed of by a common judgment.
2. The parties herein are referred to as they are arrayed in the suits for the sake of convenience.
3. In these two appeals, this Court is called upon to decide the effect of deletion of Section 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (Act No. XXI of 1950) - hereinafter referred to as "the Tenancy Act". The main issue to be decided in these appeals is whether both the suits (O.S.Nos.1001 of 1978 and 1174 of 1981) filed by the plaintiffs are liable to be dismissed as the suit transaction is hit by Section 47 of the Tenancy Act.
FACTUAL BACKGROUND:
4. The defendant in both the suits, Mohd. Qutubuddin filed O.S.No.38 of 1963 on the file of the Munsif Magistrate (West), Hyderabad against Syed Basharat Ahmed and his wife Smt. Ummatul Basheera Begum for permanent injunction by contending that he obtained lease of the suit schedule property in the year 1949 and that he was a protected tenant.
5. During the pendency of the suit, Smt. Ummatul Basheera Begum wife of Syed Basharat Ahmed sold the property to one Smt. Muneera Sultana, first plaintiff, under a registered sale deed dated 28.7.1964 (Ex.A.2). By a judgment and decree dated 30.11.1964, the said suit filed by the defendant was dismissed holding that he was in unlawful possession and the aspect of protected tenancy could not be gone into by the Civil Court. He carried the matter in appeal, by filing A.S.No.76 of 1965 on the file of the Court of the I Additional Chief Judge, City Civil Court, Hyderabad and the said appeal was allowed by judgment and decree dated 16.9.1965 to the extent of protecting his possession as he is in possession of the property and further holding that as he failed to prove that he is a protected tenant, he is only a trespasser. Basharat Ahmed died on 5.10.1965 after the judgment in A.S.No.76 of 1965. Then the wife of Basharat Ahmed filed Second Appeal No.320 of 1966 in this Court. During the pendency of the Second Appeal, she filed C.M.P.No. 3179 of 1966 to bring on record Smt. Muneera Sultana and her power of attorney, Sri A. Tuljasingh, as additional appellants in the Second Appeal by stating that the land in question was sold to them and that petition was allowed. By judgment and decree dated 25.3.1969 the Second Appeal was allowed by this Court holding that the possession of the defendant is that of a trespasser and he is not entitled to injunction against the real owners. In the normal course, the plaintiffs would have got this decree executed and recovered possession by initiating execution proceedings. Perhaps, on legal advice, the plaintiffs represented by their power of attorney filed a suit in O.S.No. 2549 of 1977 on the file of the Court of the IV Additional Judge, City Civil Court, Hyderabad against the defendant, who was declared as a trespasser in the earlier proceedings, for recovery of possession of 4000 Square yards out of the total extent of 9680 square yards bearing Municipal No. 19-3-744 corresponding to Old No.134/3 situated outside Gazibanda, Hyderabad and for permanent injunction restraining the defendant from interfering with the possession of the plaintiffs over the remaining extent of 5680 square yards. Subsequently, the said suit was re-numbered as O.S.No. 1001 of 1978. During the pendency of the suit, the plaintiffs filed another suit in O.S. No. 1424 of 1978 on the file of the Court of IV Assistant Judge, City Civil Court, Hyderabad against the same defendant seeking permanent injunction restraining him from cutting any trees or grass or ploughing or cultivating any portion of 4000 square yards and also restraining the defendant from interfering with the possession of the plaintiffs over the remaining extent of 5680 square yards and the same was re-numbered as O.S. No. 1174 of 1981. Both the suits were clubbed together and by a common judgment and decree dated 19.11.1990, the trial Court dismissed the suits holding that Ex.A-2 sale deed dated 28.7.1964 is void and unenforceable for want of sanction by the Tahsildar under Section 47 of the Tenancy Act and validation under Section 50-B of the Tenancy Act and no title could be conveyed by way of a void document.
6. Aggrieved by the said judgment and decree, plaintiffs 2 and 3 preferred C.C.C.A.Nos. 28 and 29 of 1991 before this Court. During the pendency of the appeals, they have also filed C.M.P. No. 20357 of 1997 in CCCA.No. 29 of 1991 seeking amendment of the plaint by adding the relief of recovery of possession in respect of land measuring 5680 square yards. A learned single Judge of this court, by a common judgment and decree dated 19.3.1995 allowed C.C.C.A. No.28 of 1991 by setting aside the judgment and decree of the trial court holding that no permission of the Tahsildar is required as Section 47 of the Tenancy Act was deleted from the statute book by the time the suit was instituted and dismissed C.C.C.A. No. 29 of 1991 by confirming the judgment and decree of the trial court in O.S.No. 1174 of 1981 holding that the defendant perfected his title to the property by adverse possession. The learned single Judge also dismissed the application filed for amendment of the plaint.
Aggrieved by the said judgment and decree of the learned single Judge, the plaintiffs preferred L.P.A.No. 134 of 1999 and the defendant preferred L.P.A.No. 131 of 1999 to the extent it went against their interests.
SUBMISSIONS:
Sri M.V.S. Suresh Kumar, learned counsel appearing for the defendant strenuously contends that since the transaction had taken place in the year 1964 at the time when Section 47 of the Tenancy Act was on the statute book, no valid title could have been conveyed to the plaintiffs by the owners of the suit schedule land.
7. Sri M. Rama Rao, the learned counsel for the plaintiffs, on the other hand, contends that since Section 47 is deleted from the statute book by the time the suit was filed, the suit transaction cannot be treated as void on the ground that prior permission of the Tahsildar for conveyance of the property was not obtained. Both the counsel relied on several judgments in support of their contentions and as there was some ambiguity in the legal position, we heard the arguments advanced by both the counsel at length.
8. Before considering the contentions raised on behalf of the parties, we are inclined to refer to the objects for which the Tenancy Act was enacted and also the scheme of the Act along with the amendments made to the Tenancy Act from time to time.
9. The Tenancy Act was brought on the statute book with the object of -- i) regulating the relations of landholders and tenants of agricultural land and alienation of such land; ii) preventing the landholders from sub-dividing the agricultural holdings; iii) assuming the management of the agricultural lands in certain circumstances; and
iv) introducing cooperative farms.
10. Section 2 (o) of the Tenancy Act defines "permanent alienation" as to include any sale, exchange or gift and any transfer of a right of occupancy or of the patta of a holding but does not include any disposition by will. From this it is clear that even if a right of occupancy is transferred, it is considered as permanent alienation.
11. Chapter II of the Tenancy Act deals with family holdings. Chapter III deals with tenants and their rights, the maximum rents payable by them and the circumstances under which the tenancy can be terminated. Chapter IV deals with protected tenants. Chapter V deals with restrictions on transfers of agricultural land. Chapter VI deals with management or acquisition of uncultivated, improperly cultivated or surplus lands. Chapter VII deals with the provisions of fragmentation and consolidation of holdings. Chapter VIII deals with cooperative farms. Chapter IX deals with constitution of Tribunal, procedure and powers of authorities, appeal, etc. Chapter X deals with offences and penalties. Chapter XI deals with miscellaneous provisions.
12. The scheme as disclosed by the provisions of the Act is to regulate the relationship between landholders and tenants and it does not affect the rights inter se between two persons setting up rights of ownership to a particular land or a dispute between an owner and a trespasser or a person other than a tenant. The main purpose of bringing this enactment is to see that no landholder disposes the land without retaining the land less than the family holding and to protect the possession of the protected tenants from the unscrupulous landholders and to see that alienations are not made in contravention of the provisions of the Act. It is also important to note that at the time of introducing the legislation, the Government in office was thinking of formation of cooperative farms.
13. The Tenancy Act came into force on 11.6.1950. At that time, Section 47 did not find place and it was incorporated by Amendment Act No. 23 of 1951. Section 47 of the Tenancy Act read as under:
"(1). Notwithstanding anything contained in any other law for the time being in force or in any decree or order of a Court, no permanent alienation and no other transfer of agricultural land shall be valid unless it has been made with the previous sanction of the Tahsildar:
Provided that the Tahsildar may declare a permanent alienation or any other transfer of agricultural land to be valid if the permanent alienation or transfer took place before the commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1954 and possession of the land transferred was given to the vendee before such commencement if application for sanction is made within one year after such commencement.
(2). Applications for such previous sanction shall be made and disposed of in accordance with such procedure as may be prescribed."
14. Again by Amendment Act No.3 of 1954, a proviso was incorporated to Section 47 and the word 'Collector' was substituted by 'Tahsildar'. As per sub-section (2) of Section 47, applications for previous sanction that were made shall be disposed of in accordance with the procedure that may be prescribed. To our mind, it appears, Section 48 was also incorporated along with Section 47 specifying restrictions on grant of sanction. As these provisions underwent several changes, we would like to refer the purport of these two provisions. As per Section 48, Tahsildar is not expected to grant prior sanction if the land held by the alienor or transferor is left with less than a family holding after alienation. Under the proviso to Section 48, this requirement was dispensed with in the case of an alienor, who is not an agriculturist or intends to give up the profession of agriculture or alienating the whole of the land in his possession or transferring the land for good and sufficient reasons retaining a basic holding or the area of the land held by the alienee or transferee after alienation or transfer would exceed three times the family holding so determined after excluding the land held by him, which is in possession of a protected tenant and relinquishes his right of resumption of land owned by him for his personal cultivation. Again the Government was given power to relax these conditions. Likewise, if the land is under mortgage, the Tahsildar is not expected to grant sanction for alienation. Under Section 48-A, if a protected tenant acquired a right of ownership under Section 38 or Section 38-D or Section 38-E and if eight years have not elapsed, the Tahsildar may sanction permission on payment of compensation to the protected tenant a sum equivalent to the reasonable price so determined so on and so forth.
15. Again, by Act No.6 of 1964, Section 50-B was incorporated - a) validating the alienations and other transfers of agricultural lands that have taken place after 10.6.1950 but before A.P. Ceiling on Agricultural Holdings Act, 1961 (hereinafter referred to as 'the Agricultural Holdings Act') came into force and where possession of such land was given to alienee or transferee before the date the Act came into force; and
b) on or after coming into force of the Agricultural Holdings Act but before the date of commencement of the A.P. (Telangana Area) Agricultural Lands (Third Amendment) Act, 1969 and where possession of land was given to such alienee or transferee before such commencement and such alienation or transfer is not inconsistent with the provisions of the Agricultural Holdings Act and the alienee or transferee has to approach the Tahsildar for a certificate declaring that such alienation or transfer is valid within the period prescribed for the purpose.
16. Under sub-section (2) of Section 50-B, on receipt of such application, the Tahsildar, after making such enquiry and after satisfying himself that the consideration if any payable to the alienor or transferor or has been paid or deposited within such time and in such manner as may be prescribed, require the alienee or transferee to deposit in the office of the Tahsildar an amount equivalent to the registration fee and stamp duty that would have been payable had the alienation or transfer been effected by registered document in accordance with the provisions of the Indian Registration Act. Under sub-section (3) of Section 50-B, the validation of any alienation or transfer of any land shall not affect the right accrued to any person under Section 37-A or Section 38 or Section 38-E of the Act. Under sub-section (4) of Section 50-B, the Collector may suo motu at any time call for the record relating to any certificate issued or proceedings taken by the Tahsildar under this Section to satisfy himself about the legality and propriety of the certificate issued. The time limit prescribed for validation of the alienation seemed to have been extended from time to time and the last extension expired on 31.3.1972.
17. A combined reading of these provisions would give us an impression that the main purpose and intendment of incorporating Section 47 in the Tenancy Act is to see that the landholders shall not alienate the land as the Government is contemplating to introduce ceilings on agricultural holdings in the erstwhile Telangana State. The intention of the Legislature can be gathered from the provisions of Section 50-B of the Tenancy Act. Admittedly, the Tenancy Act came into force on 11.6.1950 and the Agricultural Holdings Act came into force in the year 1961. By that time several alienations or transfers have taken place and in fact after the enactment of Agricultural Holdings Act also, some of the landholders seemed to be alienating the land apprehending further reduction in the land holdings. Hence, under clause (b) of sub-section (1) of Section 50-B, even the alienations made after the Agricultural Holdings Act prior to Third Amendment Act, 1969 were also held to be valid provided the transfer or alienation is not inconsistent with the provisions of Agricultural Holdings Act. Likewise, it is also seen from Section 48, the Tahsildar is not expected to grant prior sanction if the holding of the alienor is reduced to less than that of a family holding unless the alienor is giving up the profession of agriculture and the holding of the alienee is not exceeding three times after excluding the land held by him under the possession of protected tenant and he relinquishes the right of resumption. We should also keep in mind that in the subsequent amendments made to the Tenancy Act, the Government conferred title on protected tenants and they were declared as owners of the land.
18. From the above it is clear that the intention of the Legislature in incorporating Section 47 is to see that the landholder shall not alienate the land to his detriment by not retaining a minimum extent of land i.e., the family holding and that the holding of the alienee shall not exceed more than three times of the land holding specified under Section 4 of the Tenancy Act and also to see that the provisions of the Agricultural Holdings Act are not circumvented. It is also to be noted that Sections 47 and 50-B are on the statute book simultaneously till Sections 47 and 48 are deleted by Act No.12 of 1969. A combined reading of these two provisions gives us an impression that the alienation that had taken place in contravention of Section 47 i.e., without obtaining prior sanction of the Tahsildar, is void. After incorporating Section 50-B in the Tenancy Act, the transaction became voidable at the instance of either the landholders or the tenant on the land or the Government, but by no others. When once it becomes voidable transaction, at the option of the parties it can be treated as a valid alienation.
19. Admittedly, in this case, the alienation seemed to have taken place after introduction of Section 50-B i.e., on 28.7.1964. Nextly, it is seen that in the earlier litigation, during the pendency of the Second Appeal, the original land owner impleaded the plaintiffs in this suit as additional appellants in S.A.No.320 of 1966 and at that time the defendant did not raise any contention that the plaintiffs cannot be brought on record as additional appellants as the transaction being void and the judgment was rendered declaring him as a trespasser in the presence of the plaintiffs and that became final.
20. After the earlier proceedings attained finality, the defendant filed a petition before the Revenue Divisional Officer, West Division, Hyderabad in File No.4/2/104/70 to declare him as a protected tenant over the suit schedule property. In that petition, the plaintiffs filed an application seeking permission of the Revenue Divisional Officer to get themselves impleaded as party respondents and the same was allowed on 5.7.1965 and the defendant was directed to amend the petition before 16.8.1965. As the defendant failed to amend the petition, the Revenue Divisional Officer dismissed the petition and the defendant carried the matter in appeal to the Joint Collector who allowed the same by order dated 10.1.1967 directing the Revenue Divisional Officer to give an opportunity to the petitioner to amend the plaint and proceed with the case. Though the defendant filed the amended petition on 12.6.1967, he did not produce any evidence in support of his only and specific plea that he is a protected tenant and ultimately the said petition was dismissed and that order became final. Even at the stage when the plaintiffs filed implead petition or after the petition was dismissed, the defendant did not choose to question the correctness of the order passed by the Revenue Divisional Officer in any competent forum and it has become final.
21. Now we have to consider the effect of deletion of Section 47 from the statute in the light of observations made in the judgments referred supra as well as other decisions which were cited by the counsel for the plaintiff.
22. In NATHULAL v. PHOOLCHAND, , their lordships of the Supreme Court while considering a similar provision, viz., Section 74 of the Madhya Bharat Land Revenue and Tenancy Act, 1950 wherein the land could not be sold to an alienee, not being an agriculturist, without sanction of the State Government, held that though there was no condition in the contract that the sanction as required under Section 74 could be obtained, it must be implied that the transferor will obtain the sanction of the authority concerned since it is a well settled proposition that where by a statute, property was not transferable without the permission of the authority, the agreement to transfer the property must be deemed subject to implied condition that the transferor will obtain the sanction from the authority concerned. In fact, the said judgment was considered by their lordships in M. POCHAMMA (27 infra) and vital differences between the provisions of the Madhya Bharat Land Revenue and Tenancy Act and the A.P. (Telangana Area) Tenancy and Agricultural Lands Act were pointed out in paragraph 31 of the judgment as hereunder:
"1. While under Section 74 of the Madhya Bharat Act no land could be sold to an alienee, not being an agriculturist, without sanction of the State Government, Section 47 of the A.P. Act clearly declared that no permanent alienation or other transfer of any agricultural land shall be valid, unless it has been made with the previous sanction of the Tahsildar.
2. There is no provision in the Madhya Bharat Act which corresponds to Section 50-B of the Hyderabad Tenancy Act, under which validation of transfers could be effected even later, once again emphasizing that validation of the transfer was essential.
3. Since there was possibility in NATHULAL (16 supra) for securing permission and thus complying with Section 70 (4) of the Madhya Bharat Act, Section 53-A was presumably held to safeguard the possession of the transferee. But in the facts of the case, their lordships observed that the possibility of securing sanction came to an end by 31.3.1972 and after that there was no possibility of validating the sale transactions."
23. In QUDRAT ULLAH v. BAREILLY MUNICIPALITY, , their lordships of the Supreme Court considered the additional ground raised by the respondent-municipality that after repeal of Uttar Pradesh (Temporary) Control of Rent And Eviction Act, 1947 and introduction of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 wherein the buildings owned and vested in the State and Central Government and local authorities are exempted from the provisions of the Act under Section 2 of the said Act, the Board is entitled to an ejectment decree even if the earlier contracts are held to be leases in favour of the appellant and the effect of the repeal of the earlier Act. Counsel for the Municipality contended that the effect of repeal of a statute in the absence of saving clause is that it has to be considered as if the statute, so repealed, has never existed. In paragraph-24 of the judgment, their lordships formulated the question to be answered to the following effect:
"The only further question is whether it is permissible for this Court to take note of the extinguishment of the statutory tenancy at this stage and grant relief to the appellant accordingly."
24. Their lordships in paragraph-27 held as under:
"From what we have stated above, it follows that the argument of any vested right in the defendant being taken away does not hold good; nor is there any foundation for the contention that the later Act is being applied retrospectively. All that we hold is (a) that a disability of the plaintiff to enforce his cause of action under the ordinary law may not necessarily be transmuted into a substantive right in the defendant, (b) that rights of a statutory tenant created under a temporary statute, as in this case, go to the extent of merely preventing the eviction so long as the temporary statute lasts, (c) that the provisions of S. 43 do not preserve, subsequent to repeal, any right to rebuff the plaintiff's claim for eviction, and (d) that S. 6 of the General Clauses Act does not justify anything larger or for any time longer than S. 2 of the Act confers or lasts. It is appropriate for a court to do justice between parties to the litigation and in moulding the relief in the light of the subsequent developments, to take note of legislative changes. A court of justice should, if it could, adjudicate finally and not leave the door ajar for parties to litigate again. In the present case, it is not seriously disputed that if the plaintiff were to sue for recovery of possession today, the Rent Control Law does not stand in the way. Therefore, it is manifestly a measure of doing justice between the parties and ending litigation, which has seen two decades pass, to conclude it here by taking cognizance and adjusting the relief in the light of the later Act and repeal of the earlier Act. Nevertheless, it is contended that the present suit cannot be decreed in view of the provisions of the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972."
25. In arriving at the above view, their lordships relied on a decision of the Supreme Court in INDIRA SOHANLAL v. CUSTODIAN OF EVACUEE PROPERTY, DELHI, wherein the Hon'ble Supreme Court observed that "what in effect, learned counsel for the appellant contends for is not the 'previous operation of the repealed law' but the future operation of the previous law" and also referred to other authorities, including the decision of the Federal Court in LACHMESHWAR PRASAD v. KESHWAR LAL, AIR 1941 FC 5.
26. From the above, it is seen that unless the repealing statute provides saving clause protecting the rights accrued under the repealed Act, in this case disability has to be considered as if the statute, so repealed, has never existed.
27. In INDIA TOBACCO CO. LTD. v. THE COMMERCIAL TAX OFFICER, BHAVANIPORE, , their lordships of the Supreme Court considered the effect of repeal of an Act in paragraphs 15, 16 and 17 of the judgment as under:
"The general rule of construction is that the repeal of a repealing Act does not revive anything repealed thereby. But the Operation of this rule is not absolute.
It is subject to the appearance of a "different intention" in the repealing Statute. Again such intention may be explicit or implicit. The questions, therefore, that arise for determination are: Whether in relation to cigarettes, the 1941 Act was repealed by the 1954 Act and the latter by the 1958 Act? Whether the 1954 Act and 1958 Act were repealing enactments ? Whether there is anything in the 1954 Act and the 1958 Act indicating a revival of the 1941 Act in relation to cigarettes? It is now well settled that "repeal"
connotes abrogation or obliteration of one Statute by another, from the Statute book as completely as if it had never been passed"; when an Act is repealed, "it must be considered (except as to transactions past and closed) as if it had never existed". (Per Tindal, C.J. in Kay v. Goodwin and Lord Tenterdon in Surtees v. Ellison cited with approval in State of orissa v. M. A. Tulloch & Co.).
Repeal is not a matter of mere form but one of substance, depending upon the intention of the Legislature. If the intention indicated expressly or by necessary implication in the subsequent Statute was to abrogate or wipe off the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by super-adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal (see Craies on Statute Law, 7th Edn. pp. 349, 353, 373, 374 and 375; Maxwell's Interpretation of Statutes, 11th Edn. pp. 164, 390 based on Mount v. Toylor; Southerland's Statutory Construction 3rd Edn. Vol. I, paragraphs 2014 and 2022, pp. 468 and
490). Broadly speaking, the principal object of a repealing and amending Act is to 'excise dead matter, prune off superfluities and reject clearly inconsistent enactments' see Mohinder Singh v. Mst. Harbhajan Kaur."
28. From the above it is seen that when once an Act is repealed, it does not revive anything thereby and it amounts as if it had never been passed, unless an intention is expressly or impliedly provided in the Act repealing the earlier Act. The intention is to be gathered from the subsequent statute. In the absence of any intention, the subsequent statute is to abrogate or wipe of, the former enactment wholly or in part in which case it is a pro tanto repeal.
29. In this case, the repeal is simpliciter without preserving prohibition incorporated in Section 47 any longer and it amounts to a total repeal. In other words, the statute as if was not in existence. If we examine the facts of the case, though the alienation is at a time when Section 47 and Section 50-B were on the statute the possession could not be delivered because of the litigation pending in the civil court. By the time the proceedings in the Civil Court and Revenue Court came to an end and rights of the parties crystallized not only Sec. 47 was deleted from the statute but also the procedure contemplated for getting the transfer validated expired.
30. We have referred to the decision in PARVATHAMMA (20 infra) wherein their lordships considering the effect of confirmation of sale in the auction conducted by Court without obtaining prior sanction of the Tahsildar and having taken note of the repeal of the section, their lordships observed:
"Section 47 and other connected provisions of the main Act have been omitted with the result that no sanction is at all necessary before confirming the sale in favour of the auction purchaser".
31. In a well considered judgment in S.A. GAFFAR (30 infra), his lordships Justice Venkatarama Sastry after considering various decisions held that "confirmation already made should be deemed to be valid in the same way as possession given under such agreement when Section 47 was in force, which was held to be unauthorised by various decisions is now held by their lordships to be valid possession. On the same parity of reasoning, the confirmation of sale without the necessary sanction under Section 47 should also be held to be valid even after the deletion of Section 47 from the statute book".
32. In S. RAFIUDDIN v. S. ASADUDDIN, 1984 (2) APLJ 75, a Division Bench of this Court held that even if a prohibition as contained in Section 47 of the Act is there at the time when unregistered sale deed (Ex. B-1) was obtained, no sanction for finalisation of registration of Ex. B-1 was necessary since Section 47 was deleted by the time the suit was instituted.
33. In G.V.K. RAMA RAO (26 infra), a learned single Judge of this Court having referred to Full Bench judgment in K. PARVATHAMMA (20 infra) held:
"I carefully perused the above cases and I am of the view that the ratio laid down by this Court in all the judgments including that of Full Bench is that in view of repeal of Section 47 of Tenancy Act with effect from 18.3.1969 all previous transactions are in no way effected (sic., affected). Ex. A-1 sale deed dated 20.3.1967 is, therefore, a valid transaction. Question No. 2 is thus held in favour of the plaintiffs."
34. But the very learned Judge while considering the case of a protected tenant in B. JANGAIAH (25 infra) held that the view taken by him in the above case was not correct. But we have seen the facts in the cases of JANGAIAH (25 infra) and G.V.K. RAMA RAO (26 infra). Admittedly, the JANGAIAH's case (25 infra) relates to the rights of a protected tenant and as observed from the preamble of the Act, it is clear that Section 47 is intended mainly i) to see that agrarian reforms that are in the offing are not defeated by unscrupulous landlords, ii) to protect the interests of the protected tenants and iii) to see that unscrupulous protected tenants may not knock away the properties of landlords by dubious methods. This is evident from the guidelines laid down in Section 48 of the Act for grant of sanction for effecting alienations by the landlords. Hence, even if the learned Judge feels that the decision in G.V.K. RAMA RAO (26 infra) is wrong, the overwhelming view of this Court coupled with the decision of the Supreme Court on the effect of repeal of a statute could not be ignored.
35. Sri M.V.S. Suresh Kumar countering the arguments of the learned counsel for the appellants placed reliance on a decision of the Supreme Court in RAM KRISTO MANDAL v. DHANKISTO MANDAL, wherein the lordships of the Supreme Court while considering the repeal of Section 27 of the Sonthal Parganas Regulation, 1972, which prohibited any transfer of a holding by a ryoth either by sale, gift, mortgage or lease or by any other contract or agreement, observed:
"It is true, that ss. 27 and 28 of the Regulation were repealed by the Santal Tenancy (Supplementary Provisions) Act, 14 of 1949. But s. 27 was in force when the said transaction of exchange was made and governed the transaction made by Nilmoni Dasi and Premmoyee, Dasi. That transaction being invalid and void, the fact that s. 27 was subsequently repealed made no difference as the repeal could not have, the effect of rendering an invalid and void transaction a valid and binding transaction."
36. The cases referred to supra are later in point of time and in RAM KRISTO (7 supra), their lordships except holding that the invalid and void transaction cannot be a binding transaction did not consider the effect of repeal of a provision as was done in the cases of STATE OF PUNJAB v. M.S. PRATAP SINGH, AIR 1955 SC 84, QUDRAT ULLAH (2 supra) and INDIA TOBBACCO CO (5 supra). Hence, we are inclined to follow the view taken by the Supreme Court in those three decisions than the view expressed in RAM KRISTO MANDAL (7 supra), more so without any discussion on the effect of repeal of a provision.
37. The next question to be considered is whether the defendant, who was declared as a trespasser in the earlier proceedings in S.A.No. 320 of 1966 in the Civil Court and the proceedings before Revenue Court wherein his request for recording his name in the Tenancy Register was rejected, can resist the suit on the ground that the alienation in favour of the plaintiff is hit by Section 47 of the Act. As stated supra, while the suit filed by the defendant for injunction against the owner of the property was pending, the owner sold the property to the plaintiffs. Thereafter, the owner herself filed Civil Miscellaneous Petition before this Court to bring the plaintiffs as additional appellant in the second appeal pending before this Court by stating that she sold the land in favour of the plaintiff. At that point of time, the defendant did not raise any objection that the transaction being hit by Section 47 of the Act and in fact the plaintiffs were impleaded as additional appellants in the Second Appeal. In the presence of plaintiffs, the defendant was declared as trespasser. When the defendant approached the Revenue Divisional Officer seeking entry of his name in the protected tenancy register, the plaintiffs got themselves impleaded and pleaded that the property was purchased by them. Even at that stage, he did not raise this issue. Ultimately, in both the Courts, the defendant lost his case. Now the law is well settled with regard to the position of a trespasser. The trespasser can maintain his possession against the entire world, except the real owner. In this case when once the earlier proceedings have taken place in the presence of plaintiffs and the defendant was declared as trespasser, necessary inference to be drawn is that the court below recognised the sale in favour of the plaintiffs herein and held that the defendant is a trespasser. From that moment, it cannot be said that the plaintiffs are strangers to the property as the right of the defendant over the property was recognised by a competent court.
In the light of the foregoing discussion, we are of the view that the judgments in S.A.No. 320 of 1966 and the Revenue Court operate as res judicata, and the defendant cannot raise this issue in the third round of litigation.
38. Mr. Suresh Kumar cited the following decisions also for the proposition that there cannot be any estoppel against the statute and no Court can enforce a transaction as valid which, according to law, is invalid.
39. In SURAJMULL v. TRITON INSURNCE CO, AIR 1925 PC 83, the owner of the steamer filed a suit claiming damages for breach of an alleged contract to "issue policies of insurance covering war risks on goods" shipped or to be shipped. In this case after some oral discussion between the appellant firm and the Insurance Company, the company refused to issue policy and on that the appellant insured the goods else where at higher premium and claimed excess premium paid by the company as damages. Adverting to the situation as no insurance policy was issued, Justice Lord Summer held as follows:-
"No Court can enforce as valid, that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a Court can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset."
40. We feel this ratio decidendi of this case is not of much help, since in the peculiar circumstances of this case; we have to consider the effect of Sec. 50-B read with Section 47 when both Sections are on the statute book.
41. The learned counsel cited yet another judgment in DINBAI v. THE DOMINION OF INDIA, for the proposition that there can be no estoppel against law and no person can be precluded from contending that certain orders are invalid as the orders are valid or not is a pure question of law. This proposition is unexceptionable. But we have to consider the effect the deletion of Sec. 47 in the case on hand and the time limit fixed under Section 50-B for validation of the alienation expired by the time the suit was laid. The counsel relied on the judgment in MANNALAL v. KEDAR NATH, for the proposition that whether a contract, expressly or by implication, is forbidden by State, no court can give its assistance to give effect. In other words what is done in contravention of the provisions of an Act of the legislature cannot be made subject of an action. Again application of this principle will depend upon the view we are going to take on the fact of deletion of Sec. 47 at the time when the suit is instituted.
He also placed reliance on two judgments of the Madras High Court in KONERIDOUS v. N. SUBBAIAH NAIDU, and ZALIM v. BABU TIRLOCHAN PRASAD SINGH, AIR 1937 OUDH 220 (FB) for the proposition that it is always open to a party to question the correctness of any order of competent court passed in earlier proceedings by bringing the legal representatives on record in subsequent proceedings. In this case, the facts as stated supra are altogether different and hence we are not referring to these judgments, as they cannot come to the aid of the defendants.
42. On the other hand, in VIJAYABAI v. SHRIRAM TUKARAM, , their lordships of the Supreme Court held:
"It would be impermissible to permit any party to raise an issue, inter se, where such an issue under the very Act has been decided in an early proceeding. Even if res judicata in its strict sense may not apply but its principle would be applicable. Parties who are disputing now, if they were parties in an early proceeding under this very Act raising the same issue, would be stopped from raising such an issue both on the principle of estoppel and constructive res judicata."
43. Hence, we are of the view that the defendant cannot be permitted to raise the issue that the alienation is hit by Section 47 of the Act at this belated stage.
44. Nextly, Sri M.V.S. Suresh Kumar placed reliance on a judgment of the Supreme Court in M.M.B. CATHOLICOS v. M.P. ATHANASIUS, AIR 1954 SC 526 for the proposition that the plaintiff has to succeed or fall on the strength of his own title than trying to destroy the title of the defendant. Absolutely we are in full agreement with the proposition. When once we hold that the alienation in favour of the plaintiff is not hit by Section 47, perhaps the defendant has no case as he was already declared by a competent Court that he was in unauthorised possession of the property, which has become final.
45. In the earlier round of litigation in Second Appeal No. 320 of 1966 dated 5.3.1999, this Court having taken note of the alienation made by the first appellant in favour of appellants 2 and 3, who were brought on record as per orders in C.M.P.No. 3179 of 1966 dated 26.9.1966, categorically recorded a finding:
"This appeal is filed by the first defendant, originally appellants 2 and 3 were added in this Court. The plaintiff filed the suit for an injunction restraining the defendant from interfering with his possession alleging that he has the status of protected tenant and that he continued in possession as a tenant after the death of his father. It is admitted that the defendants are owners of this property."
46. Since the plaintiffs were already brought on record in the earlier proceedings as owners of the property, the defendant herein cannot contend that they are strangers and he could protect his possession against them, who are admittedly true owners as recorded in the above appeal.
47. Sri M.V.S. Suresh Kumar cited another judgment in TATOBA GANU v. TARA BAI, for the proposition that the plaintiff has to prove his title and the Court is not concerned with the weakness of the title of the defendant in a suit for ejectment and that the defendant may be a trespasser but the defendant in possession is entitled to ask the plaintiff to prove strictly his title. Admittedly that was a suit filed for ejectment of the defendant therein. Here, the suit was filed for recovery of possession and injunction by the plaintiffs and their title to the property was already recognised in earlier proceeding itself and hence the defendant cannot resist the suit for recovery of possession and injunction.
48. Nextly, Mr. Suresh Kumar brought to our notice the passage from the judgment of the Supreme Court in NAIR SERVICE SOCIETY v. K.C. ALEXANDER, , which was borrowed from PERRY v. CLISSOLD, 1907 AC 73, which is to the following effect:
"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title."
49. In the light of the above principle, as already stated, if the rightful owner comes forward and asserts his title within the prescribed period of limitation, the person in possession of the property and exercising the ordinary rights of ownership has to give way to the rightful owner.
50. The learned counsel for the appellant, Mr. Suresh Kumar, contended that on the day when Smt. Ummatul Basheera Begum sold the property in favour of one Muneera Sultana, the first plaintiff herein viz., on 28.7.1964, she had no title to the property and as such it cannot be said that she conveyed the property validly. On that ground also, the learned counsel contends, the alienation cannot be given effect to. But the fact remains that the defendant filed a suit in O.S.No. 38 of 1963 against Basharat Ahmed and his wife Ummatul Basheera Begum for permanent injunction in 1963. If Ummatul Basheera Begum was not having a right over the property, it is not known as to why the defendant made her as party defendant in the suit. Even assuming for the sake of argument that she was not having ownership right over the property that was sold by her in 1964, during the pendency of the suit and after disposal of A.S.No. 320 of 1966 and before filing S.A.No. 320 of 1966, Basharat Ahmed died and his wife Ummatul Basheera Begum, who sold the property to the plaintiffs, succeeded to the property of Basharat Ahmed as they had no issues. In fact no other legal heir of Basharat Ahmed after his death claimed any right over the suit schedule property all these years i.e., from 5.10.1965, the day on which Basharat Ahmed died. The contention raised by the counsel is squarely answered by Section 43 of the Transfer of Property Act, which reads as under:
"Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."
51. Even assuming for the sake of arguments, Ummatul Basheera Begum has no right of ownership over the property, after the death of her husband, Basharat Ahmed, on 5.10.1965, she has not only acquired the ownership rights over the suit schedule property but also in the second appeal she filed a Civil Miscellaneous Petition to bring the plaintiffs as appellants 2 and 3 on record by stating that she sold the property to them, which petition was ordered by this Court. Hence, it could be seen that she not only acquired ownership rights over the property subsequent to the alienation but also filed an application stating that she has transferred the right over the property in favour of the plaintiffs. Hence, the defendant cannot contend that the plaintiffs have no right of ownership over the property. Accordingly, this contention is also rejected.
52. Their lordships of the Supreme Court had considered the effect of alienation pendente lite in NAGUBAI v. B. SHAMA RAO, . In that case, after Keshavananda was adjudged as insolvent and the estate vested in the official receiver, plaintiff purchased the suit schedule property in execution of a decree in O.S.No. 100/99-20. The defendant raised a contention that the transaction is void and no title was conferred on her because the official receiver, in whom the estate of Keshavananda vested, was not made a party to the proceedings. In paragraph-25 of the judgment, their lordships held as under:
"But it is argued for the appellants that having regard to the words of S. 52 that pendente lite "the property cannot be transferred", such a transfer must, when it falls within the mischief of that section, be deemed to be non est, that in consequence Keshavananda must, for purposes of lis pendens, be regarded as the owner of the properties, notwithstanding that he had transferred them, and that the Official Receiver who succeeded to his rights had a right to be impleaded in the action.
This contention gives no effect to the words "so as to affect the rights of any other party thereto under any decree or order which may be made therein", which make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto."
53. From the above decision, it is seen that the transfer is good between the parties except to the extent that it might conflict with the rights decreed under the decree or order. The matter can be viewed from another angle also. A purchaser who purchased the property in dispute will get no better title than what the real vendor was having in the property. When once such a party gets himself impleaded in the proceedings by contending that he purchased the property pendente lite, it has to be presumed that he steps into the shoes of the owner of the property and if the owner's right to property is upheld it amounts to upholding the title in favour of his vendee.
54. Assuming for a moment that the principle of res judicata is not applicable, we would like to refer to the case-law cited by the learned counsel on both sides with regard to the validity of the transaction.
55. Sri M.V.S. Suresh Kumar relied on a Full Bench judgment of this court in K. PARVATHAMMA v. THE COMMISSIONER OF EXCISE, AIR 1973 AP 333 : 1970 (2) ALT 186 (FB). It is true that in this case the Full Bench observed that in the case of private alienations the rule is well settled that prior sanction should be obtained before the registration of the document, i.e., at the stage where the title to the property passes on to the purchaser. Likewise in the case of involuntary sale, sanction should be obtained before sale is confirmed, i.e., the stage at which there is transfer of the property by operation of law. Their Lordship having placed reliance on another Full Bench judgment of this court in P.E. RAMAKISTAIAH v. POCHAIAH, 1967 (2) An.W.R. 17 (F.B.) observed that after the sale is held and the purchaser is ascertained, he should then apply to the Tahsildar for sanction under S.47 of the Tenancy Act and on the strength of such prior sanction alone, the sale will be confirmed under Section 139 of the Land Revenue Act which represents the final stage at which transfer by operation of law takes place. This judgement is rendered in a writ petition filed by the petitioner, the daughter of the landholder, seeking writ of mandamus directing the Collector to hold fresh auction of the suit schedule properties as prior permission was not obtained as required under Section 47 of the Tenancy Act before bringing the properties of her father to sale for recovery of excise arrears.
56. Admittedly, the party who complained against the illegality in the transfer is no other than the daughter of excise contractor who fell in excise arrears and whose properties were brought to sale in revenue auction. While considering the plea, the learned Judges made a passing observation that "in private sales, the rule is well settled that prior sanction should be obtained before the registration of the document". But to our mind that in the light of Sec.50-B of the Tenancy Act even if no prior permission is obtained before sale transaction is completed the alienee is given the opportunity to approach the Tahsildar for obtaining the certificate. When once the conditions laid down in Sections 48 and 50-B are complied with, the Tahsildar cannot refuse to grant permission. It is pertinent to note that the learned Judges having held that prior sanction is required before confirmation of sale observed as under:
"The result of their decision is that prior sanction under Sec.47 is required only before the sale is confirmed under Sec.138 of the Revenue Act. By virtue of the order of stay passed the revenue sale in favour of the purchaser has not yet been confirmed. But it has to be noted that in view of the recent legislation viz., Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act (Third Amendment) (Act 12 of 1969 which came into force on 18.03.1969, section 47 and the other connected provisions of the main Act have been omitted with the result that no sanction is at all necessary before confirming the sale in favour of the 5th respondent".
57. From this view of the learned Judges it is clear that when once the section prohibiting alienations of the immovable property is deleted from the statute, no sanction is required for confirmation of the sale in favour of the 5th respondent since the title passes on to the purchaser only after registration.
58. Coming to the case on hand, to our mind though the sale took place on 28.7.1964 when both Sections 47 and 50-B are on the statute book, the plaintiffs were not put in possession of the land since the proceedings initiated in the civil court by the defendant were pending at that point of time and the same came to an end only in 1969. Subsequently, the defendant approached the Revenue Divisional Officer to enter his name in the official record. That litigation came to an end on 6.6.1974 by which time S.47 is deleted from the statute book. It is also to be seen that time limit prescribed under Sec.50-B of the Act to obtain prior permission was not available as the extended time came to an end on 31.3.1972.
59. The next decision relied on by the learned counsel is that of this Court in LACHAMMA v. K. CHINNA VENKATA REDDY, ILR 1974 A.P. 119 wherein the Division Bench held as follows:
"A plain reading of Sec.50-B would clearly indicate that it is prospective in operation and not retrospective. Mere deletion of Sec.47 or introduction of S.50-B does not by itself validate all the transfers which were valid; such invalid transfers do not become legally enforceable unless a seal of approbation is put up by the Tahsildar by granting a certificate a certificate validating the sale."
60. From the above, it is seen that their lordships were dealing with the alienations that have taken place prior to introduction of Section 50-B.
61. Nextly, the facts and circumstances in this case are not known as only a Short Note of the judgment was placed before us. Even in this judgment their Lordships observed that invalid transfers do not become legally enforceable unless a seal of approbation is put up by the Tahsildar by granting a certificate validating the sale. But there was no indication at what stage the certificate has to be obtained. But in any of the cases cited before us, none the alienations have taken place when both the Secs.47 and 50-B are on the statute book. In the absence of Sec.50-B perhaps the counsel may be justified in contending that this being an illegal alienation it cannot be validated by mere introduction of Sec.50-B without the seal of approval by the Tahsildar. But when both the sections are on the statute book, keeping in view the scheme of the Act we have already taken the view that it is only a voidable alienation but not a void alienation. When once it is voidable alienation it can be validated by any of the parties involved in the transaction i.e., the vendor, vendee and in this case it is the Tahsildar who has to give the seal of approbation.
The very fact that the vendor or her successors did not question the alienation or the Tahsildar who is competent authority under the Act have not raised any dispute with regard to the validity of the transaction though it was brought to the notice of the Tahsildar by the defendant by necessary implication, it has to be held that the Tahsildar has given his seal of approval to the transaction. Nextly, the principle laid down in this case may not come to the aid of the defendant, since the transaction is not hit by Section 47 of the Act as no possession was delivered to the plaintiff at the time of the transaction as held by the Court in the decision referred to hereunder and the alienation is subject to the result of the proceedings pending in civil Court.
62. The next decision relied on by the learned counsel is M. SEETA DEVI vs. M.R.O, 1990 (1) APLJ 219 for the proposition that the registered sale deed obtained without obtaining permission under Sec.47 is void. This judgment is again rendered in a writ petition filed under Art. 226 of the Constitution of India wherein the petitioners questioned the orders passed by the Mandal Revenue Officer refusing to cancel mutation of the lands in favour of the 3rd respondent who is no other than one of the sons of original landholder. The contention of the petitioners was that the 3rd respondent and his two sons sold an extent of Ac.14.12 guntas of land by a registered sale deed to one Pochamma without obtaining prior sanction and the Mandal Revenue Officer erred in mutating the lands in favour of the 3rd respondent. While considering the case of the petitioner, the learned Judge observed that "prior sanction by the Tahsildar was not obtained as required under Sec. 47 of the Act and hence the sale is to be considered as void". The learned Judge in arriving at the above decision relied upon a judgment of this Court in USHANNA v. SAMBHU GOND, 1985 (3) APLJ 32 wherein this Court held that "if the transferee or alienee did not avail himself of this opportunity of getting his alienation and possession validated under Section 53-B, he should suffer the consequences, since the transfer and delivery of possession in his favour remained invalid and unlawful."
In this case, it is seen that the petitioner purchased the land from one Hanumantha Rao after deletion of Sec. 47 who in turn purchased the same from the first son of the landholder i.e., Kesavulu after obtaining prior permission as required under Sec. 47 of the Act and was questioning the alienations made by the 3rd respondent and his two brothers without obtaining prior sanction while alienating the land to Pochamma. From this, it is evident that if possession is delivered at the time of the transaction and if the alienee failed to avail the opportunity of getting his possession validated, he has to suffer the consequences. Further, to our mind this judgment may not be of much help to the appellant for the reason that the effect of deletion of Sec.47 on the transaction had not been considered and that at the time when the 3rd respondent sold the land to Pochamma, who in turn sold the property to third parties on 30-11-1971, the procedure for getting the alienation validated was very much available.
63. But in the instant case the litigation between the parties in the earlier round was still going on by the time Sec. 47 was deleted from the Act and also the time limit prescribed under Section 50-B for getting the sale validated had expired.
64. The next decision relied on by the learned counsel is B. JANGAIAH v.
G. LAXMAMMA, .In this case the protected tenant questioned the orders of the Mandal Revenue Officer directing his eviction from the land on the ground that he committed willful default in payment of rent for three years as confirmed by the appellate authority. The main contention of the petitioner therein seemed to be that as the landholder sold the petition schedule land to the respondent on 13.06.1950, it is hit by Sec. 47 of the Act and the above sale is void. This argument was found favour with the learned Judge who held that the sale being a private sale mere deletion of Sec. 47 would not have any effect whatsoever and that the transaction is hit by Sec. 47 and is abinitio void. The learned Judge observed that his decision in G.V.K. RAMA RAO v. B.H.E.C.H.B. SOCIETY, 1997 (4) ALD 294 wherein contrary view was taken by him has to be ignored.
65. Admittedly, in this case, firstly the main complainant about the alienation is no other than the protected tenant. Secondly, alienation has taken place on 13.6.1950 after promulgation of Tenancy Act. Unfortunately the factual position was not brought to the notice of the learned Single Judge. On the day the sale has taken place, Sec. 47 was not on the statute book. For the first time it was introduced only in 1951 and the learned Judge proceeded on a wrong assumption that Sec. 47 was on the statute book on the date of execution of sale deed Ex.A2, dated 13.6.1950. Nextly, the learned Judge did not consider the fact of deletion of Sec.47 from the statute book and non-availability of the procedure contemplated under Section 50-B for getting the sale validated by the time the suit is filed.
66. In M. POCHAMMA v. AGENT, STATE GOVT., ADILABAD, , the question that fell for consideration of the Division Bench of this Court was whether a person who obtained possession of immovable property pursuant to Sec. 53-A of Transfer of Property Act without obtaining prior sanction as required under Sec. 47 of the Act and without securing validation certificate under section 50-B, can claim protection under Sec. 53-A of the Transfer of Property Act after A.P. Scheduled Area Land Transfer Regulations 1959 were extended to Telangana area on and from 1.12.1963. In this case the non-tribals entered into a contract of sale in respect of the land held by tribals in the schedule areas before 1.12.1962 and after extending the Scheduled Areas Land Transfer Regulations to Telangana area, the vendors i.e., tribals challenged the validity of the sales under the provisions of the Regulation 1959. In this case, the learned Judges extensively considered the effect of various provisions of the Tenancy Act. It is pertinent to know that in paragraph 8 of the judgment their Lordships observed as follows:-
"...Sec. 47 and 50-B are co-existed from 1964 to 1969.In 1969 Sec. 47 and certain other provisions were deleted and only Sec. 50-B is on the statute book. The benefit of validation was extended up to 31.03.1972. The purpose behind these changes is not far to seek. Section we have already noticed, one of the purposes of the Hyderabad Tenancy Act is to regulate the alienation of lands. In pursuance of that purpose, Chapter V was made imposing certain restrictions on transfers of agricultural lands. Section 47 was the very first provision in that Chapter. It laid down that no permanent alienation or no other transfer of agricultural land shall be valid unless it has been made with the previous sanction of the Tahsildar.
This declaration is very clear and specific. If there is any permanent alienation or transfer of agricultural land without the previous sanction of the Tahsildar, that would be invalid. However, the Legislature obviously took note of the fat that there had been very many permanent alienations or other transfers of agricultural lands which had taken place without the previous sanction of the Tahsildar. In order to obviate the confusion and injustice that might result therefrom the Legislature introduced S.50-B in the year 1964 for validation of certain alienations and other transfers of agricultural lands. Till 1969 until S.47 was deleted both the section Community Certificate-existed. The position then was that the prohibition against alienations without previous sanction of the Tahsildar continued and at the same time transferees after 10th June, 1950 but before 21st February, 1961 who had also obtained possession, were given an opportunity to get the alienations in their favour validated within one year from the prescribed date.In 1969 S.47 was altogether omitted; only S.50-B with the changes above mentioned was retained."
67. Their Lordships at paragraph 9 further observed as follows:-
"The position which emerged from the amendment of S. 50-B was that alienees of agricultural lands, who had obtained possession between 10th June, 1950 and before the Ceiling Act of 1961 and also after the Ceilings Act of 1961 but before the Hyderabad Tenancy Act (Third Amendment 1969, were enabled to secure validation of their alienations. It is important to note that the facility of validation would be available only to those transferees who had obtained possession of the land. If all the requirements of S.50-B are satisfied, the alienee or transferee may apply to the Tahsildar for a certificate declaring that his alienation or transfer was valid."
68. Their Lordships having considered the effect of Sec. 50-B and the procedure prescribed for obtaining validation certificate held in the same paragraph as follows:
"It must necessary follow from this that if there is no validation certificate, the alienation or transfer, though accompanied by possession, would not be treated as valid."
69. Having stated so their lordships referred to the subsequent deletion of Section 47 in paragraph 19 of the judgment and held as follows:-
"...whether the subsequent deletion of S.47 of the Hyderabad Tenancy Act would have the effect of automatically validating the alienations and transfers, though they were invalid on account of lack of sanction of the Tahsildar under that Section. If there was deletion of S.47 simpliciter without anything more, possibly two views might have been possible. On the one hand, probably it could have been said that what had been the cause of invalidity of an alienation or transfer has been removed by the deletion of S.47 and therefore it must be deemed that the original defect in the alienation or transfer must be deemed to have been cured or removed. On the other hand it could be argued that what was invalid to start with could not be validated unless there is a special proclamation by the Legislature or a provision under which such invalid alienations or transfers could be validated. However, in our view, this possibility of the existence of two views does not exist in so far as the Hyderabad Tenancy Act is concerned, particularly so in these writ petitions. Why we say that such situation does not exist in these cases particularly is that s.47 was deleted in 1969 and the Regulation relating to the prohibition or alienations of lands in the Scheduled Areas by tribals came to be applied to the Telangana Area on 1.12.1963 which was long before S.47 was removed from the statute book. Even if it were to be argued that the removal of S.47 would automatically validate the invalid alienations and transfers, the insurmountable hurdle in the way of the petitioners would arise in the form of the Regulation which came to be applied to their lands even on 1.12.1963. By virtue of the Regulation the invalidity, which was inhibiting the alienations or transfers in their favour by 1.12.1963 on account of lack of sanction under S.47 of the Hyderabad Tenancy Act, could not be cured in respect of their rights and interests that might have existed earlier. It is true that up to 1.12.1963, that is to say, till the Regulation came to be applied to the Telangana Area, either the petitioners or their alienors could have applied to the Tahsildar for permission for the alienations or transfers thereby securing legal sanction to them. It is a moot point whether after the Regulation came into force o 1.12.1963 and before S.47 was deleted in 1969 permission could be obtained for transfer in respect of these lands in the scheduled Areas in view of S.3 of the Regulation.
70. However, we do not express any view on this point since it is not necessary to do so in these cases. The admitted fact remains that no attempt has been made either by the petitioners or their alienors for securing the required permission under S.47 even after 1.12.1963 and before S.47 was deleted.
71. At paragraph 20 of the judgment, their Lordships observed as follows:-
"There is yet another formidable objection to the validity of the transfers in favour of the petitioners. In 1964 S.50-B was introduced for validation of the earlier invalid transfers. For five years thereafter till 1969 S.50-B was part of the statute along with S.47. The result was that even after 1964 no permanent alienation or transfer could be effected without the necessary permission from the Tahsildar. At the same time, the earlier invalid alienations for want of that sanction could be validated by taking recourse to S.50-B proceedings. In 1969 S.47 and the allied provisions were deleted and yet, S.50-B was retained. This is a very material and significant circumstance. Though S.47 was deleted, thereby implying that from that date no permission was necessary for alienations or transfers. The earlier invalid transfers, which had taken place from 1950 to 1969, could be validated with the aid of the proceedings under S.50-B. It would also be very pertinent to note that by Act 12 of 1969, which deleted s.47 and the allied provisions from the statute book, substituted sub-sec. (1) of S.50-B whereunder the invalid alienations, which had taken place from 10th June, 1950 right up to the date of the commencement of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Land (Third amendment) Act, 1969 could be validated. We have already noted that originally as S.50-B(1) stood when it was first inserted by Act 6 of 1964, only alienations from 10th June, 1950 till 21st of February 1961 could be validated under that section. While deleting S.47 and the allied provisions in 1969, sub. sec.(1) of S.50-B was altered by extending the period from 21st February 1961 till the third Amendment to the Hyderabad Tenancy Act in 1969 was made. That is to say, under the newly altered S.50-B as per Act 12 of 1969, even the alienations and transfers, which were invalid right up to 1969, could be validated. In other words, even those alienations and transfers, which had been made without obtaining sanction under s.47 up to 1969 in which year that section was deleted, could be cured and made lawful by invoking the provisions of S.50-B. It is thus manifest that S.50-B was made by the Legislature with a definite purpose and that purpose was clearly declared in the marginal note as "validation of certain alienations and other transfers of other agricultural lands." As we have pointed out, very many alienations had been made contrary to Ss.47, 48 etc., and the Legislature thought it just and proper to validate some of them. The alienations which could be validated, the manner in which such validation could be made and the time within which that validation could be sought were all prescribed in the Section. As it stood amended by 1969 Act, transfers, which had taken place between 10th June, 1950 and 1969 when the Third Amendment to the Hyderabad Tenancy Act was made where possession had been given and which were not inconsistent with the provisions of the A.P. Ceiling on Agricultural Holdings Act, 1961, were eligible for validation under the provision.
In paragraph 21 of the judgment, their lordships observed that the invalidity of the alienation would continue if there is no declaration under Section 50-B and the certificate under sub-section (2) could be granted only where possession had been delivered and where the alienee has paid the balance of consideration or deposited the same in the manner prescribed.
72. In paragraph 22 of the judgment, their lordships observed as under:
"...if the transferee or alienee did not avail himself of this opportunity of getting his alienation and possession validated under S.50-B, he should suffer the consequences, since the transfer and delivery of possession in his favour remained invalid and unlawful."
73. Speaking on the purported intention of Section 50-B, their lordships observed:
"S.50-B was not merely an enabling provision but was also intended by the Legislature as a remedy for validating transfers and possessions which were invalid. Without such validation, the invalid transfer and delivery of possession remained invalid. This facility to get the invalid alienations declared as valid existed only up to 31st March, 1972, since the Legislature stopped further extension for such validation after that date. Those who did not apply under S.50-B up to 31st March, 1972 would reap the result of having an invalid transfer and delivery of possession on their hands. The Legislature's refusal to extend the time beyond 31st March, 1972 does not validate the invalid transfers and delivery of possessions. If this was not the intention of the Legislature by enacting S.50-B and amending it, then that section would be pointless and purposeless. It cannot be postulated that any provision of an enactment has been made without any purpose."
74. Having taken the view, their lordships did not agree with the view taken by Justice Pardhasaradhi in HAFEEZUNNISA BEGUM v. SYED ARAB, (1969) 2 An. WR 317 wherein his Lordship held that Section 50-B was merely an enabling provision and the omission of a party to take advantage of it does not put the validation itself in jeopardy.
75. In the decision in USHANNA (24 supra), Justice K. Ramaswamy, as he then was, had taken the view that if the transferee or the alienee did not avail himself of the opportunity of getting his alienation and possession validated under Section 50-B, he should suffer consequences since the transfer and delivery of possession in his favour remained invalid and unlawful.
76. Following the said decision, Justice M.N. Rao, as he then was, in M. SEETA DEVI (23 supra) held that the sale deed dated 8.10.1964 executed by the third respondent and his brothers in favour of Pochamma is void as the alienation has taken place without obtaining any permission from the Mandal Revenue Officer before entering into an agreement, which preceded the sale deed, and the alienees also have not taken any steps to get the transfer validated under Section 50-B of the Act. It is pertinent to notice the last portion of the judgment wherein it was observed that "However, it is made clear that it is open to the third respondent to file a civil suit to establish his alleged rights in respect of the land in question."
77. Again, the above two cases deal with the possession obtained by the alienees pursuant to an alienation without obtaining prior sanction of the competent authority i.e., the Tahsildar. At any rate, Justice M.N.Rao having found that the sale is void gave liberty to the party to approach the civil court for establishing his right over the property.
78. The sum and substance of this judgment is:
a) The Hyderabad Tenancy Act was enacted to regulate the alienation of lands and under Section 47 of the Act no permanent alienation shall be valid, unless it has been made with the previous sanction of the Tahsildar.
b) Since several alienations or other transfer of agricultural lands have taken place without the previous sanction of the Tahsildar, the Legislature in its wisdom introduced Section 50-B for validation of certain alienations and both Sections 47 and 50-B co-existed on the statute book from 1964 to 1969 and the embargo placed under section 47 was lifted in the year 1969.
c) Their lordships also held that the facility of validation would be available only to those transferees, who had obtained possession of the land.
d) The alienation or transfer, accompanied by possession, without obtaining validation certificate, has to be treated as not valid.
e) While considering the effect of deletion of Section 47, their lordships having observed that two views are possible did not express any opinion as that was not necessary in that case since the transaction therein was prior to 1.12.1963, the date on which the Scheduled Areas Land Transfer Regulations were extended to Telangana Area.
f) Section 50-B was introduced to validate the invalid transfers that have taken place prior to third amendment whereunder possession has been given, if the same were not in contravention of A.P. Ceiling on Agricultural Holdings Act, 1961.
g) The possession of an alienee remains invalid and unlawful if he did not avail himself of the benefit conferred under Section 50-B.
h) The legislature's refusal to extend the time beyond 31.3.1972 does not validate the transfers and delivery of possession if the alienee fails to avail the benefit under Section 50-B for getting the illegal transfers validated.
79. Justice Madhava Reddy, as he then was, in Second Appeal No. 520 of 1968 dated 20.7.1970 while following the judgment in SYED JAJLAL v. TARGOPAL, considered the effect of deletion of Section 47 and observed:
"Deletion of Section 47 can operate only prospectively and if on the date of transfer or permanent alienation when Section 47 was in force, it cannot be contended that on that date the alienation was valid and the transfer of possession would also be valid. He also observed that S.50-B could have reference only to transfers, which were made at a time when Ss. 47 to 50-A were in force. The learned Judge expressed the view that S.50-B, by necessary implication, retrospectively validates the transfer of agricultural lands made when S.47 was in force and were invalid for want of prior sanction of the Tahsildar."
80. His lordship having considered the Third Amendment Act, viz., deletion of Sections 47 to 50-A of the Act, held:
"If the third Amendment Act is held to be prospective at least from 18th March, 1969 onwards, the possession under such agreements of sale cannot be deemed to be unauthorized and therefore the persons in possession would be entitled to invoke the provisions of S.53-A to protect their possession."
81. His lordship further held that the possession which had been delivered to the 1st defendant might have been unauthorized at the time it was given, but it cannot be deemed to be unauthorized in view of the fact that Sections 47 to 50-A were deleted and a provision was made for obtaining a certificate declaring the transfer as valid.
82. After expressing the said opinion, the learned Judge arrived at the view perhaps by the time the second appeal was dismissed, still there was time left out for obtaining certificate under Section 50-B of the Act. But this view was not found favour with by the Division Bench in L.P.A.No. 139 of 1970 and their lordships held:
"Mere deletion of Section 47 or introduction of Section 50-B would not by itself validate all the transfers which were invalid and that such invalid transfers would not be legally enforceable unless a seal of approbation is put by the Tahsildar by granting a certificate validating the same. But it could not be said that by necessary implication S. 50-B validates all such invalid matters. It may be that after deletion of S. 47 contracts of transfer could be made without any prior permission as was required when S. 47 was there. But the question had still to be answered whether possession delivered in pursuance of agreement to sell prior to 18.3.1969 could be defended by invoking S.53-A of the T.P. Act."
83. But, at the same time, their lordships having approved the ratio decidendi in SYED JALAL (29 supra) observed that when once Section 47 was deleted, the possession given earlier would be considered as validly given. Ultimately, their lordships agreed with the conclusion arrived at by Justice Madhava Reddy and dismissed the Letters Patent Appeal.
84. From the above it is seen that the learned Judges firstly expressed concurrence with earlier decision of this Court in SYED JALAL (29 supra) and secondly observed that by deletion of Section 47, the possession, which was unauthorized until then, seized to be unauthorized. Again, an inference may be drawn in this case that the above observations of their lordships may be attributable to the fact that by the time the Letters Patent Appeal was dismissed, still the time limit for getting the seal of approbation from the Tahsildar for the transaction is available.
85. Yet in another decision, viz., Second Appeal No. 450 of 1970, dated 21.9.1972, Justice Madhava Reddy, as he then was, having referred to the judgment of Division Bench in SYED JALAL (29 supra) and his earlier judgment in S.A.No. 520 of 1968 concluded that the view he had taken earlier was found favour with the Division Bench. In that case, the question that arose was whether a contract of sale dated 30.6.1956 could be deemed to be authorised at least from 18.3.1969, the date on which the Third Amendment to Hyderabad Tenancy Act came into force, and whether the first defendant can defend and protect his possession by invoking Section 53-A of the Transfer of Property Act.
86. A Full Bench of this Court in K.PARVATHAMMA (20 supra) held that even for revenue sales, sanction under Section 47 before the amendment of 1969 was required before confirmation of such sale.
87. While considering the effect of non-obtaining the certificate as contemplated under Section 47 in court auctions and deletion of Section 47 by the time the judgment was rendered, their lordships held that only after a sale is held and the purchaser is ascertained, he has to apply to the Tahsildar for sanction under Section 47 of the Tenancy Act and on the strength of such prior sanction alone the sale will be confirmed under Section 139 of the Hyderabad Land Revenue Act, which represents the final stage at which transfer by operation of law takes place. Dealing with the effect of new Act, their lordships stated as under:
"The result of decision is that prior sanction under Section 47 is required only before the sale is confirmed under Section 139 of the Land Revenue Act. By virtue of the order of stay passed by this Court, the revenue sale in favour of the purchaser has not yet been confirmed.But it has to be noted that in view of the recent legislation, viz., Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act (third amendment) (Act 12 of 1969) which came into force on 18.3.1969 sections 47 and the other connected provisions of the main Act have been omitted with the result that no sanction is at all necessary before confirming the sale in favour of the 5th respondent."
88. From the above it is seen that though a sale has taken place in terms of law, unless and until, possession is delivered pursuant to sale deed, the sale transaction is not complete and a reading of section 47 makes it abundantly clear that prior permission of Tahsildar has to be obtained when transfer takes place by operation of law.In other words, in an alienation where registered sale deed is executed, but possession was not delivered and possession is subject to lis pendens, the question of obtaining prior sanction as required under section 47 of the Act does not arise. Admittedly, the sale has taken place when proceedings initiated by the respondent in the court of law is pending and he is in possession of the property, the question of delivering possession of the property will arise only in the event the vendor succeeds in the suit. Otherwise, the sale transaction is a nullity in the eye of law. It is also well settled principle that a sale is complete only after execution of deed of conveyance followed by delivery of possession. Since the possession could not be delivered owing to two factors i.e., firstly, the defendant was continuing in possession as a trespasser and secondly the lis initiated by him was pending, no occasion or necessity arose to the plaintiff to invoke Section 47 or 50-B of the Act.
89. In this case, it is seen that the alienation took place in 1964 when both Sections 47 and 50-B are on the statute book and no possession was delivered to the vendee since the appellant is in possession of the property and the suit filed by him for restraining the land owner from interfering with his possession is pending in the Civil Court.The vendee obtained the sale deed without possession subject to the result of proceedings pending in civil court, the question of handing over possession to him will arise only in the event, the owner of the land succeeds in the suit. In other words, the vendee has to sail or sink with the vendor and he cannot be placed in a better position than that of his vendor. If the vendor succeeds in the suit, then the question of delivering possession by the vendor of taking possession by the vendee would arise.In this case, by the time the litigation came to an end, Section 47 was not only deleted from the statute book but also the time limit allowed to get the transaction validated under Section 50-B by approaching the Tahsildar expired. In other words, neither Section 47 was there on statute book nor the procedure for getting the invalid alienation validated was also not available by the time the first round of litigation came to an end.
90. His lordship Justice Venkatarama Shastry analyzed the judgment in K. PARVATHAMMA (20 supra) in S.A. GAFFAR v. K. SAYANNA, 1974 (1) APLJ 316 in paragraph 15 of the judgment and observed:
"The result of the above authorities is that when Section 47 was on the statute book the attachment and court sale of agricultural lands could be held and only the confirmation has to be postponed till the sanction was obtained under Section 47 of the Act. There could be no valid passing of title to the auction purchaser till the sanction was obtained. It is only after his purchase in the court auction the auction purchaser has to apply for sanction under Sec. 47 of the Act. But when once Sec. 47 itself has been deleted from the Act there is no question of any application being made by the auction purchaser and therefore the sale could be confirmed if not already confirmed. The confirmation of sale made previously without prior sanction also though it was initially invalid would become valid as there is no machinery now in the shape of Section 47 in the Act to enable the auction purchaser to obtain the necessary sanction for getting the sale confirmed. It is no doubt true that the deletion would only have prospective effect. But it could not have been the intention of the legislature while deleting this section from the statute book to invalidate all confirmations of sales made prior to such deletion without obtaining the necessary sanction. In any event, there are no specific or clear words in the statute to attribute such intention to the legislature.Inasmuch as there is no machinery now available to the court auction purchaser his purchase cannot be held to be at the risk of invalidity on account of want of sanction."
91. We are in respectful agreement with the view taken by his lordship Venkatarama Shastry in S.A.GAFFAR's case (30 supra).
92. Adverting to the observation that mere deletion of Section 47 or introduction of Section 50-B does not by itself validate all transfers which were invalid and that such invalid transfers do not become legally enforceable unless the seal of approbation is put by the Tahsildar by granting a certificate validating the sale, in an unreported decision of a Division Bench of this Court in LACHAMMA v. K. CHINNA VENKATAREDDY, 1972 (2) APLJ 46 (SN) his lordships his Lordship Justice Venkatarama Shastry observed:
"Dealing with the deletion of Section 47 vis--vis the right of the purchaser to claim part performance under Section 53-A, their lordships held that such deletion would not deprive the purchaser from invoking the principles of part-performance."
93. Referring to paragraph-14 of the above decision, his Lordship Justice Venkatarama Shastry observed that the ratio decidendi laid down in that case applies to the facts in S.A.GAFFAR's case (30 supra). It is useful to reproduce paragraph-14 of the decision in LACHAMMA (31 supra), which is as under:
"We have already noticed that the above said decision of this court holds the agreement to sell not only as valid but is capable of being enforced by a suit for specific performance.When this requirement is complied with in the present case and when the possession delivered in pursuance of such agreement cannot be said now to be unauthorized because of deletion of Sec. 47 of the act, we fail to see why the plea of part performance should not be available to the defendant.The bench had held the possession is unauthorized in such cases because of sec. 47 read with Sec. 98. But when Sec. 47 is now deleted not only contracts of transfer and alienation made after 18.3.69 would be valid even if made without permission and delivery of possession in pursuance of such contracts can hardly be doubted as authorised. The position, in our judgment, would not differ in a case where the agreement to sell was valid and Sec. 47 which made the possession delivered in pursuance of such agreement unauthorized has been deleted. The possession then can be considered as validly delivered and in such a case the doctrine of part performance can validly be invoked."
94. The learned Judge having observed that the above doctrine applies to the facts of the case proceeded further and observed:
"But now that section has been deleted from the statute. It should be held that the confirmation already made should be deemed to be valid in the same way as possession given under such agreement when Sec. 47 was in force which was held to be unauthorized by various decisions, now held by their lordships to be valid possession. On the same parity of reasoning the confirmation of sale without the necessary sanction under Sec. 47 should also be held to be valid even after the deletion of sec. 47 from the statute book."
95. In arriving at this conclusion, the learned Judge relied on another judgment of a Division Bench of this Court comprising of Justice Gopal Rao Ekbote and Justice A.V.Krishna Rao, as they then were, in Letters Patent Appeal No. 176 of 1990 dated 9.12.1970 wherein again their lordships were considering the effect of non obtaining of prior permission from the Tahsildar before the court auction is confirmed. Their lordships while considering the plea of limitation observed:
"Even otherwise we do not think that there is any substance in this connection. It may be that at the time of the confirmation of sale Section 47 was in force. But it has now been deleted with the result that under the Act no prior permission to sell any agricultural land is necessary. As a result, the court auction also can take place and the sale confirmed without obtaining any such permission from any revenue officer under the Tenancy Act. Even if it is now held that the confirmation was bad, the matter will have to go before the auction authority because the previous proceedings cannot be held to be bad. Again the authority will merely confirm because there are no provisions which require now that permission should be obtained as was the case when the previous confirmation was made. It will thus be a futile formality to hold the confirmation bad and allow it to be again confirmed as in between third party's interest has arisen and it would not cause any injury to the judgment-debtor."
96. In other words, their lordships held that since Section 47 is deleted from the statute book even if the prior confirmation is to be formally set aside for want of permission under Section 47, the same will be confirmed since the embargo stood lifted and the same would only amount to an empty formality. In the result, his lordship held that there is no necessity for fresh order of confirmation of court sale even in a case where an order of confirmation has already been passed when Section 47 was in force without obtaining necessary sanction.
97. Another thing which we have to see from the entire case law referred to supra is that Section 50-B comes into operation only when an alienation has taken place in violation of Section 47 of the Tenancy Act and possession was delivered. If the possession is not delivered, the question of taking objection that the transaction is vitiated does not arise. Our view is fortified by the view expressed by the Division Bench of this Court in SYED JALAL (29 supra) wherein their lordships held:
"The contracts of sale was neither prohibited by Section 47 nor invalid in law and what was prohibited was permanent alienation or transfer of agricultural land. Hence, the suit for specific performance of contract of sale without prior permission under Section 47 could be maintained."
98. From the above, it can be safely presumed that unless possession is delivered at the time of alienation contemporaneously and if the possession has to be handed over at a later point of time, the obtaining of prior permission as contemplated under Section 47 is not required. From the above decisions, the following principles can be deduced:
(a). Section 47 of the Tenancy Act neither prohibited contract of sale nor declared it as invalid in law and what is prohibited is permanent transfer of agricultural lands and permanent transfer is complete when possession is delivered. In other words, what is prohibited under Section 47 is delivery of possession of the property without obtaining prior permission of the Tahsildar.
(b). A vendee, who purchased the property without prior sanction of the Tahsildar, can lay a suit for specific performance against the vendor to obtain prior permission and deliver possession of the property.
(c). In all these cases cited, the vendors having entered into agreement of sale started contending that the transaction is hit by Section 47 of the Act, unlike the case on hand. In the instant case, a person in illegal occupation of the land started contending that the sale deed executed by the original landlord in favour of the appellants is hit by Section 47 of the Act after he was declared as a trespasser.
(d). In case of court auctions, the question of obtaining permission of the Tahsildar will arise only after the auction is held and the purchaser is ascertained before confirmation of the sale. Till then no permission as contemplated under section 50-B of the Act is required i.e., the auction held by the Court is valid and subsequent proceedings will be vitiated if no permission as required under Section 47 is obtained. But as Section 47 was deleted from the statute by the time the case came up for consideration, their lordships observed that even if the confirmation is set aside and the matter is remanded, the Court has to confirm the auction since Section 47 is not on the statute book and it is only an empty formality. Having taken the said view, the order of confirmation passed earlier was upheld.
99. The learned counsel for the appellant also cited a judgment of the Privy Council in SURAJ MULL (9 supra), for the proposition that no court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment, a thing from which a court can be dispensed by the consent of the parties, or by a failure to plead, or to argue the point at the outset.
100. He also cited another decision of the Supreme Court in MANNALAL (11 supra) for the proposition that where a contract, express or implied, is expressly or by implication forbidden by statute, no court will lend its assistance to give it effect and what is done in contravention of the provisions of an Act of the legislature cannot be made the subject of an action.
101. Since we have taken the view that the alienation itself is not prohibited by Section 47 of the Tenancy Act by placing reliance on a catena of decisions of this Court, these decisions have no bearing on the facts of the case on hand.
102. Nextly, he placed reliance on a judgment of the Bombay High Court in DINBAI (10 supra) for the proposition that there cannot be any estoppel against law and no person can be precluded from pleading that certain orders are invalid and illegal as the question as to whether orders are illegal or invalid is a pure question of law and the question of estoppel does not arise in those circumstances. This decision is also of no help to the defendant for the reason that we have considered his plea on merits and came to the conclusion that the transaction itself is not hit by Section 47 of the Tenancy Act.
103. In the light of the foregoing discussion, we hold that the sale in favour of Muneera Sultana, the first plaintiff, on 28.7.1964 pendente lite by the Ummatul Basheera Begum, the owner of the land, is not hit by Section 47 of the Tenancy Act as no possession was delivered to the first plaintiff at that stage. By the time the disputes over the property are settled, neither Section 47 was on the statute book nor the time limit fixed for getting the alienation coupled with possession validated by following the procedure prescribed under section 50-B of the Act was available. We are, therefore, of the opinion that the transaction is not hit by Section 47. For the sake of argument even if it is assumed that it is hit by Section 47, the machinery provided under Section 50-B for validating the illegal transaction as valid was not available and it cannot be held that the transaction has to be treated as void for want of sanction. Hence, the judgment and decree passed by the learned single Judge in C.C.C.A.No. 28 of 1991 is confirmed on a different reasoning. The Letters Patent Appeal No. 131 of 1999 is dismissed. There will be no order as to costs.
104. L.P.A. No. 134 of 1999:
105. This letters Patent Appeal is filed against the judgment and decree in C.C.C.A.No. 29 of 1991 wherein his lordship Justice Ramesh Madhav Bapat dismissed the appeal and the suit holding that the defendant perfected his right by adverse possession and the appellants/plaintiffs herein i.e., the respondents in L.P.A. No. 131 of 1999 failed to prove their possession over the suit schedule property and he also rejected the amendment application filed by the appellants/plaintiffs seeking additional relief of recovery of possession.
106. The facts of the case are that the appellants herein i.e., the respondents in L.P.A.No. 131 of 1999 filed suit in O.S.No. 2549 of 1977, re-numbered as O.S.No. 1001 of 1978, for recovery of possession of about 4000 square yards out of total extent of 9680 square yards, which is popularly known as Bagh Ahmadiya Gulshan. Subsequently, they filed O.S.No. 1174 of 1981 against the respondent herein i.e., the appellant in L.P.A.No. 131 of 1991 to restrain him and his men from interfering with his possession over an extent of 4680 square yards by contending that when there was scramble for possession between the parties, the Station House Officer, Kamatipur initiated proceedings under Section 145 of the Code of Criminal Procedure in M.C.No. 13 of 1965 and by an order dated 9.2.1966 the VIII City Magistrate before whom the proceedings have taken place held that the plaintiffs are in possession of the property. But the civil Court dismissed the suit for injunction rightly as the respondent herein was found to be in possession of the property even in earlier proceeding. To that extent, perhaps, the Civil Court is right. In the appeal i.e., C.C.C.A.No. 29 of 1991, the appellant herein filed C.M.P.No. 20357 of 1977 seeking amendment of the relief. The learned Judge dismissed the application by holding that the respondent has perfected his title to the property by adverse possession. Any suit for recovery of possession has to be filed within twelve years from the date of dispossession as per Article 65 of the Limitation Act.
107. The following questions, to our mind, arise for consideration:
1. Whether the respondent can raise the plea of adverse possession?
2. Whether by allowing the amendment, the very nature of the suit is going to be altered and the rights accrued to the respondent are going to be affected?
108. Admittedly, till the year 1981, the case of the respondent is that his father and after his death himself were in possession of the property as tenants and the owner of the land cannot disturb their possession as he acquired occupancy rights over the property as protected tenant. That plea was negatived by the common law court as well as revenue court under the Act. For the first time, he set up a plea of adverse possession.The law relating to adverse possession was already referred to, by us while considering the case of parties in L.P.A.No. 131 of 1991. To be more specific and for the sake of clarity, we would like to once again reproduce the principle stated in PERRY's case (18 supra), which is as under:
"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title."
109. Keeping the aforementioned principle in view, we have no hesitation to hold that the respondent herein was never in possession of the property in the assumed character of owner and was exercising ordinary rights of ownership or having title to the property. Only in the event rightful owner fails to assert his title to the property within the prescribed period of limitation, the person in possession of the property acquires an absolute title. Since the respondent was always pleading permissive possession, to our mind, he cannot set up the plea of adverse possession as he was never in enjoyment of the suit schedule property exercising rights of ownership to the knowledge of the true owner. The only question to be seen now is whether the respondent enjoyed the property for a statutory period of twelve or more years as a rightful owner to the knowledge of true owners. According to Mr. Suresh Kumar the proceedings before this Court came to an end on 25.3.1969 and as the suit was filed in the year 1978 the statutory period of twelve years did not expire from the time this Court declared him as trespasser in the first round of litigation, but it is only after the judgment of the Civil Court on 19.11.1990 in the second round of litigation for the first time the application for amendment of plaint seeking additional relief was filed by which time the statutory period of twelve years expired and the respondent herein perfected his title to the property.He placed reliance on a decision of the Supreme Court in MUNI LAL v. ORIENTAL FIRE & GENERAL INSURANCE CO. LTD.32 In the above case, the truck insured was lost in an act of misfeasance of the driver and then after exchange of notices, the owner of the truck filed a suit seeking declaration that the appellant is entitled to loss of the truck from the Insurance Company and that suit was dismissed by the trial court holding that the suit for mere declaration without consequential relief for payment of compensation for the loss of truck or specified amount from the respondent was not maintainable. In the appellate court, he filed an application under Order VI Rule 17 of the Code of Civil Procedure claiming the consequential relief of payment of quantified amount for loss of truck. In paragraph-4 of the judgment, Justice K. Ramaswamy speaking for the Bench observed:
"The question, therefore, is whether the amendment under Order 6, Rule 17 Civil Procedure Code could be ordered in this background. Section 3 of the Limitation Act speaks of bar of limitation providing that subject to the provisions contained in S. 4 to 24 (inclusive), every suit instituted, after the prescribed period shall be dismissed, although limitation has not been set up as the defence. In other words, unless there is a power for the court to condone the delay, as provided under S. 4 to 24 (inclusive), every suit instituted after the prescribed period shall be dismissed although limitation has not been set up as the defence. Order 6, Rule 17 Civil Procedure Code envisages amendment of the pleadings. The court may at any stage of the proceedings allow either parties to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question of controversy between the parties. Therefore, granting of amendment on such terms is also a condition for the purpose of determining the real question in controversy between the parties. The amendment to grant consequential relief sought for in this case, is as envisaged in proviso to Section 34 of the Specific Relief Act, 1963. That relief was, however, available to him, to be asked for, when the suit was filed."
110. Having considered the various aspects of the case, the Supreme Court observed:
"On a consideration of this case in its proper perspective, we are of the view that granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceeding in the appellate court or the second appellate court."
111. Countering the arguments of the learned counsel, counsel for the appellant cited the following decisions:
112. In RADHIKA DEVI v. BAJRANGI SINGH, , the apex Court observed that the amendment of the plaint, no doubt, is normally granted and only in exceptional cases where the accrued rights are taken away by amendment of the pleading, the court would refuse the amendment, by relying on the observations of the Supreme Court in LAXMIDAS DAHYABHAI KABARWALA v. NANABHAI CHUNILAL KABARWALA, , which are as under:
"It is, no doubt, true that, save in exceptional cases, leave to amend under Order 6, Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations are added or fresh reliefs sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading. The present is a fortiori so. The defendants here were not seeking to add any allegation nor to claim any fresh relief which they had prayed for in the pleading already filed."
113. In P.H. PATIL v. K.S. PATIL, , their lordships of the Supreme Court expressed that the principles enunciated by Justice Batchelor in his judgment in KISANDAS RUPCHAND v. RACHAPPA VITHOBA, 33 BOMBAY 644 are correct principles in considering the application for amendment of the pleadings, which are to the following effect:
"All the pleadings ought to be allowed which satisfy the two conditions (a) not working injustice to other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties....but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?"
114. In B.K.N.PILLAI v. P. PILLAI, , their lordships of the apex Court held:
"The purpose and object of Order 6 Rule 17 Civil Procedure Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High courts and this court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hyper technical approach. Liberal approach' should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation."
115. The said decision was followed in RAGU THILAK D.KOHN v. S. RAYAPPAN, (2001) 2 SCC 472. In VINEET KUMAR v. MANGAL SAIN, their lordships of the Supreme Court held:
"Normally, amendment is not allowed if it changes the cause of action.But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raises a new case, but amounts to no more than adding to the facts already on record, the amendment would be allowed even after the statutory period of limitation."
116. In K. CHINNA BIDDAMMA v. J. KRISHNAMA NAIDU, , S.B.Sinha, C.J., as he then was, held that amendment of plaint seeking additional relief of declaration of title in a suit for permanent injunction cannot be refused on the ground of laches and that even if the relief is barred by limitation, it could be included by way of amendment. In taking the said view, his lordship relied on the judgment of the Supreme Court in LEACH AND CO., LTD. V. M/S. JARDINE SKINNER AND CO.,
117. In OM PRAKASH GUPTA v. RANBIR B. GOYAL, , their lordships of the Supreme Court held:
"The ordinary rule of civil law is that the rights of the parties stand crystalised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis.However, the Court has power to take note of the subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; ii) that taking note of such subsequent event or changed circumstances would shorten the litigation and enable complete justice being done to the parties and iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise."
118. In PASUPULETI VENKATESWARLU v. MOTOR AND GENERAL TRADERS, , while considering the plea of taking subsequent events for moulding the relief in a matter arising under the Rent Control Act, his lordship Justice Krishna Iyer observed:
"It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of judicial process.If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure where no specific provision or fair play is violated, with a view to promote substantial justice subject - of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confide it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for application is equitable rule are myriad."
119. From the above decisions, it could be seen that the rights of the parties stand crystalised on the date of institution of the suit and the decree in a suit should accord with the rights of the parties as they stood at the commencement of the suit. When once the amendment is allowed, it dates back to the date of filing of the suit. Further, even if the amendment is time barred or belated one, the court should not blink in its duty in moulding the relief by amending the rules of procedure if no specific provision of law or rule of fair play is violated as it promotes substantial justice.
120. In the case on hand, both parties knew pretty well their claims over the suit schedule property. In fact, the defendant was declared as a trespasser in the earlier proceedings by this Court and he is in occupation of the property unauthorisedly.For reasons best known to the counsel appearing for the plaintiffs herein, they have chosen to file the suit for injunction though the civil court recorded a finding that the defendant is in possession of the property as a trespasser. The mistake committed by the counsel was realized only after the judgment of the court below. It is true that the defendant was in unauthorized possession of the property after the Tenancy Court refused to grant occupancy certificate in the year 1974 and the suit for injunction was filed in the year 1978. Had they sought for relief of recovery of possession, the defendant would have no answer to the claim because he was declared a trespasser already, except the only plea that was raised in the other suit that the alienation in favour of the first plaintiff was hit by Section 47 of the Tenancy Act. Now we have taken the view that the alienation in the year 1964 is not hit by Section 47 of the Tenancy Act and the possession of the property was not delivered to the plaintiffs and they purchased the property pendente lite i.e., subject to the result of civil proceedings pending at that time. By the time the civil court proceedings ended in their favour, Section 47 was not on the statute book and as such it cannot be held that the transaction is void or illegal. It is true that the plaintiffs woke up only after the suit for injunction was dismissed and a petition seeking additional relief of recovery of possession was filed. We are afraid, if we do not allow the amendment, grave injustice would be caused to the plaintiffs, who are the real owners of the property and a trespasser would knock away the property by succeeding on technicalities. If such a thing is allowed to take place, it will be a slur on the system of adjudicatory process. As their lordships of the Supreme Court observed that to do substantial justice amendment has to be allowed if the loss caused cannot be compensated in terms of money and if the other party is not going to suffer. Hence, as observed by Justice Krishna Iyer that the procedural laws should be handmaid but not the mistress of judicial process and the Court shall not blink or be blind to the events which stultify or render inept the decretal remedy and equity justifies in blending the rules of procedure where no specific provision or fair play is violated with a view to promote substantial justice. We respectfully follow the observations of his lordship Justice Krishna Iyer to render substantial justice between the parties. Further it can also be seen that by allowing the amendment, no fresh affidavits are needed, no additional issues need be framed and no further evidence be let in as the earlier suit filed by the appellant for recovery of possession and this suit for injunction were clubbed together and common judgment was rendered by the court below. When once the plaintiffs succeeds in the first suit, the same principle has to be applied in the second suit also. Had the advocate appearing for the plaintiffs observed minimum professional knowledge, his clients would not have been placed in such an awkward situation and their rights would not have been in jeopardy. For the mistake committed by the advocate, we feel that the party cannot be penalized. On this count also, we would like to allow the amendment petition for rendering substantial justice between the parties and to uphold the majesty of law and convey a message to the unscrupulous litigants that they cannot run away from the courts by taking advantage of the procedural laws.
121. Any prudent person having lost case would have handed over the possession to the real owner. But in this case, the defendant having lost the suit as well as the proceedings under the Tenancy Act in 1974 did not hand over the possession and for that reason the plaintiffs have to once again approach the civil court and start the litigation afresh. From the above, the conduct of the defendant in squatting over the property even after he was declared as trespasser cannot be appreciated. For the said reason we allowed the amendment application.
122. For the foregoing discussion, we allow the application filed under Order VI Rule 17 of the Code of Civil Procedure seeking additional relief of recovery of possession. Once the amendment is allowed to be carried out, the natural consequences will be that the result in the first appeal shall follow the suit. In other words, the appellants/plaintiffs have to succeed in L.P.A., as there is no other defence for the defendant to contest either the suit or at any stage of proceedings till the stage of L.P.A. Accordingly, we set aside the judgment and decree of the learned single Judge in C.C.C.A.No. 29 of 1991 and allow L.P.A.No. 134 of 1999.
123. Counsel for the defendant/trespasser contends that there is a standing crop and he requires time to hand over vacant possession of the land, but the counsel for the land owner submits that there is no crop.Without going into this controversy, we are inclined to give two months time to vacate the land and hand over the vacant possession of the property to the owner of the property. We are under the impression that the counsel for the defendant/trespasser is seeking time for eviction so as to go to Supreme Court. When asked, the learned counsel states that in the event of losing the case in supreme Court, his client is prepared to vacate the premises and hand over the vacant possession the very next day without contesting the Execution Petition. On this undertaking, we are inclined to give two months time from the date of receipt of a copy of this order for handing over vacant possession of the property to the owner of the land. If he fails to get any order from the Supreme Court, he shall vacate the property and hand over possession on the expiry of the time granted by this Court. There will be no order as to costs.