Andhra HC (Pre-Telangana)
Mohd. Hasham Died Per L.Rs. Smt. Najma ... vs Dontaramoni Narsimha on 13 November, 2001
ORDER P.S. Narayana, J.
1. Heard Mr.Mohd.Gulam Hussain and Mr.Mohd.Gulam Hyder, the counsel representing both the parties.
The Revision is filed under Section 91 of A.P. (Telangana Area) Tenancy and Agricultural Lands Act 1950, in short referred to as "Act" hereinafter. The facts in brief are that the ancestor of the petitioners late Mohammed Chand was the absolute owner of the lands in Sy.No.343 - an extent of Acs.7-29 guntas, Sy.No.344 - an extent of Acs.13-25 guntas and Sy.No.367 - an extent of Acs.11-28 guntas of Nomula village, Manchal Mandal, Ranga Reddy District.The lands in Sy.Nos.343 and 344 being evacuee property, had been allotted to Dr.K.C.Solani and late Mohammed Chand purchased the same from the said person and late Mohammed Chand also purchased the land in Sy.No.367 from Gulam Hussain and thus late Mohdammed Chand had been in exclusive possession and enjoyment of the said lands and subsequent to his death his sons, daughters and widow had inherited the said lands.
2. The respondents filed a petition under Section 32(1) of the Act for restoration of possession of the aforesaid lands on the ground that his father D.Narayana and Mohammed Chand were protected tenants and after the death of the said D.Narayana, the respondents came into possession and the legal heirs of Mohammed Chand had dispossessed the respondents in the month of July 1984. However the petitioners had disputed the plea of protected tenancy raised by the respondent and had denied the possession especially from 1952 when the father of the respondent had orally surrendered tenancy rights and further inasmuch as these lands originally are evacuee properties, the Mandal Revenue Officer has no authority or jurisdiction to entertain or decide the petition under the Act. However, the Mandal Revenue Officer, Manchal, by an order dated 27-3-1993 in Case No.A1/1904/89 dismissed the petition filed by the respondent and the respondent aggrieved by the same preferred an appeal in file No.F2/436/94 before the Joint Collector, Ranga Reddy District who had allowed the same by an order dated 21-8-2000 and the Revision Petitioners aggrieved by the said order had preferred the present Revision.
3. Mr.Mohd.Gulam Hussain, the learned counsel representing the Revision Petitioners had raised an objection that Section 32 of the Act cannot be invoked by a protected tenant at all and at the best the provision is applicable to a case of ordinary tenant and not a protected tenant. The learned counsel also had pointed out that in the case of he alleged joint tenancy or joint protected tenancy, there is no question of invoking the provision i.e., Section 32 of the Act.The learned counsel also had submitted that inasmuch as he case of the either side is that both are tenants in any event Section 32 of the Act is not applicable. The learned counsel also had pointed out that in the case of joint possession, there cannot be any dispossession as such and hence there is no question of restoring the possession. The learned counsel also had drawn my attention to the order of the learned Mandal Revenue Officer and had pointed out that there was absolutely no enquiry, much less proper enquiry in this regard.The learned counsel had drawn my attention to different provisions of the Act, the definition under Section 2 of the Act and also Sections 19, 34 and 99 of the Act. The learned counsel also had pointed out that the concepts of ordinary tenant and protected tenant are different under the Act and hence the appellate authority had erroneously allowed the appeal. The learned counsel had pointed out that at any rate the claim is relating to undefined portions. The learned counsel also had submitted that in view of Sections 7 and 8 of the Administration of Evacuee Property Act, the revenue authorities have no jurisdiction at all to entertain the proceedings under the Act. The learned counsel had strenuously contended that in matters of this nature, where the relief of partition or other remedies have to be granted, the parties are at liberty to approach the competent Civil Court only and this question cannot be decided by the revenue authorities under the Act.
4. Sri Gulam Hyder, the learned counsel representing the respondent had submitted that Section 32 of the Act can be invoked by both ordinary tenant and also protected tenant and the learned counsel had drawn my attention to Section 2(r) and 2(v) of the Act and also stressed on the words "tenant under the provisions of this Act". The learned counsel had drawn my attention to Section 38(D) and also Section 47 of the Act. The learned counsel also had placed reliance on DEVANATH SINGH Vs. POOSU MALLAIAH (DIED) AND OTHERS 1 and RAMACHANDRA REDDY AND OTHERS Vs. BASAPPA AND OTHERS 2 and strenuously contended that in the light of the view expressed in the said decisions, Section 32 can be invoked by both ordinary tenants and protected tenants. The learned counsel also had placed reliance on USHANNA AND OTHERS Vs. SAMBU GOUD (DIED) PER L.Rs. 3 and BAKARAM JANGAIAH @ JANGA REDDY AND OTHERS Vs. GUNDE LAXMAMMA (DIED) PER L.Rs. 4. The learned counsel further submitted that as far as the tenancy is concerned, it is well established by production of records. The learned counsel also had contended that the property does not vest in the custodian at all unless the procedure under Sections 7 and 8 of the Administration of Evacuee Property Act is followed. The learned counsel placed strong reliance on PESTONJI D. BARIA AND OTHERS Vs. GOVERNMENT OF A.P. AND ANOTHER 5, EBRAHIM ABOOBAKER AND ANOTHER Vs. TEK CHAND DOLWANI 6, ALLAUDIN ALLABUX AND OTHERS Vs. M.B. MEHER AND ANOTHER 7.The learned counsel also had contended that the order of the Joint Collector is a well considered order wherein clear findings had been recorded in relation to the respondent and his right to have the possession restored and hence under Section 91 of the Act such well considered order cannot be interfered with.
5. At the outset I may state that both the learned counsel representing the respective parties had admitted that the authority of the first instance had not conducted any proper enquiry while making the order.However, the contention of the learned counsel for the respondent is that the order of the appellate authority is a well reasoned order and hence the non-conducting of enquiry by the authority of first instance may not be of much consequence. It is pertinent to note that Section 32 of the Act deals with procedure of taking possession and Section 32(3) of the Act specifies "on receipt of an application under sub-section (1) or sub-section (2), the Tahsildar shall after holding an enquiry pass such order thereon as he deems fit".It is also interesting to note that the case of the respondent is that Mohammed Chand and the father of the respondent Narayana were joint tenants of the disputed lands having half share each and both the original tenants were cultivating the lands of their respective shares and subsequent thereto the parties to the present litigation have been enjoying half share each cultivating the lands jointly. However, the case of the Revision Petitioners is that the father of the respondent had surrendered his tenancy rights and further the very protected tenancy had been denied. The question of jurisdiction of the authorities to entertain a petition under Section 32 of the Act, especially in the light of the fact that the property is evacuee property, also had been raised. The appellate authority while deciding the matter had observed as follows:-
6. On the other hand it is clear to the fact that the appellant's father late Narayana was the Protected Tenant of the suit lands to the extent of half share along with late father of the respondent No.1 namely Mohammed Chand according to the Tenancy record finalized in the year 1951. In as much as the succession of the Tenancy rights has also been sanctioned in the name of the appellant vide Mandal Revenue Officer, Manchal Mandal Proc., D.Dis.No.A/3074/88, dt.23.2.1989, but nobody inclusive of the respondents herein objected for the same. Thus in the instant case of having valid tenancy rights, seeking possession Under Sec.32(1) of the Tenancy Act by a Tenant is not barred by limitation, though the tenant was out of possession and has got every right to seek possession provided that his tenancy is not cancelled under the Provisions of Sec.19 of Tenancy Act. The claim of the respondent that he purchased the suit lands does not affect the rights of the tenant as the rights of a tenant does not extinguish as a result of sale transaction. The position of the respondents over the half share of the appellant is of a 3rd party illegally possessed, so far as the contention of the respondent that the suit lands are the evacuee property is concerned the respondent has failed to produce any documentary evidence in support and till it is proved and consequences thereof decided by a proper authority, the appellant cannot be kept away from the lands to the extent of his half share held under tenancy.
7. It is pertinent to note that the petition is filed under Section 32 of the Act on the ground of joint tenancy. The preamble of the Act 21 of 1950 specifies "
Whereas it is expedient to amend the law relating to the relations of landlords and tenants of agricultural lands and the alienation of such lands, and whereas it is also expedient to enable land holders to prevent excessive sub-division of agricultural holdings to empower Government to assume in certain circumstances the management of agricultural lands to provide for the registration of co-opera tive firms and to make further provision for matters incidental to the aforesaid purposes". From the preamble of the Act 21 of 1950, it appears that the Act wa s enacted with a view to regulate the relations of land holders and tenants of a gricultural lands. Chapter III of the said act deals with tenants and general p rovisions. Section 5 of the Act deals with persons deemed to be tenants. Secti on 19 of the Act deals with termination of tenancy. Section 32 of the Act also f alls under Chapter III. Chapter IV of the Act specifically deals with protected tenants. Sections 34 to 46 of the Act under Chapter IV are the provisions dealing with protected tenants. In the present case, the very foundation of the application filed by the respondent is on the strength of protected tenancy. In Section 32 of the Act, the expression employed is "tenant or an agricultural labourer or artisan". Here itself, it may be stated that 'protected tenant' and 'tenant' are defined under Section 2(r) and 2(v) of the Act. In the decision referred (1) supra, it was held that when a protected tenant was dispossessed from the lands in respect of which he was given tenancy certificate, he is entitled to seek the benefit of Section 32(1) of the Act and as such he has a right to apply under the Section for summary eviction and the Tahsildar has jurisdiction to entertain such petition. In the decision referred (2) supra, it was held that the protected tenants are entitled to restitution unless they are ejected in accordance with law under Section 32(1) and (2) of the Act. In the decision referred (3) supra, it was held that the procedure under Section 38(d) of the Act is mandatory. In the decision referred (4) supra, it was held that the sale of land by landholder to a third party without first offering it to protected tenant unless he declines to purchase the same is null and void. However, in the present case, it is only joint tenancy and it is not the case of either of the parties that there is a landholder. In the decision referred (5) supra, it was held that the property should be declared as evacuee property by a notification under the Administration of Evacuee Property Act, 1950 and then only such property vests in the custodian.The learned counsel for the respondent also had placed reliance on the decision of Apex Court referred (6) supra and Bombay High Court referred (7) supra to substantiate his contention that the question of applicability of Administration of Evacuee Property Act 1950 does not arise in the facts and circumstances of the case.
8. As stated supra, when the respondent had invoked the jurisdiction of the original authority under Section 32 of the Act, no proper enquiry was conducted. It is no doubt true that the counsel for the Revision Petitioners had strenuously contended that in the case of joint tenancy under the Act, the legal heirs of such protected tenants cannot invoke Section 32 at all. It was also submitted that in such a case the relief is only by way of partition in a Civil Court and not by invoking the jurisdiction under Section 32 of the Act. After perusing the material available on record, I am of the considered opinion, in a case of this nature the original authority should have conducted a detailed enquiry by giving proper and reasonable opportunity to both the parties and should have decided all the questions which may be raised by the respective parties. In the light of the facts narrated above, since several questions having material bearing on deciding the matter are involved, in the fitness of things and also in the interest of justice, instead of remanding the matter to the appellate authority it is better to remand the matter to the original authority so as to enable the original authority to conduct proper enquiry in this regard after giving due notice to all the contesting authorities.
9. In the light of the above discussion, the impugned order of the Joint Collector, Ranga Reddy in Appeal No.F2/436/94 is hereby set-aside and the matter is remitted back to the Mandal Revenue Officer, Manchal, Ranga Reddy District to enable the Mandal Revenue Officer, Manchal, Ranga Reddy District to issue notice to all the parties on record and to conduct due enquiry and decide all the questions which may be raised by the respective parties in this regard. The Civil Revision Petition is allowed to the extent indicated above. But in the facts and circumstances of the case, no order as to costs.