Andhra HC (Pre-Telangana)
S. Venkatareddy And Ors. vs Joint Collector And Ors. on 9 October, 2002
Equivalent citations: 2003(3)ALD159, 2003(2)ALT377
ORDER T. Meena Kumari, J.
1. This Civil Revision Petition is filed under Section 91 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short 'the Tenancy Act') against the orders of the Joint Collector, Ranga Reddy District in Case No.F2/2013/ 2000 dated 3-3-2001.
2. This Court while ordering Notice before admission of the CRP on 25-6-2001 granted status quo as to possession as on that day in CMP No. 11676 of 2001. Later, on 3-10-200], the CRP was admitted. The petitioners alleging that the fourth respondent in the CRP has violated the said status quo orders granted by this Court, they have filed CC No.829 of 2002. Along with said Contempt Case, the CRP has also been posted before me for hearing. Both the Counsel advanced their arguments in the CRP also.
3. The brief facts of the case are as follows:
The petitioners herein have filed the above appeal in Case No. F2/2013/2000 dated 3-3-2001 before the first respondent questioning the orders of the second respondent i.e., Revenue Divisional Officer, Chevella Division, Hyderabad dated 10-5-2000 in Proceedings No.G/7894/82 in respect of agricultural lands bearing Survey Nos.49 to 54, 61 and 74 of Nanakramguda Village, Serilingampally Mandal, Ranga Reddy District.
4. The main case of the petitioners herein, who are the appellants before the Joint Collector is that they are pattedars and possessors of the agricultural lands bearing Survey Nos.49 to 54, 61 and 74 of Nanakramguda Village, Serilingampally Mandal, Ranga Reddy District. It is the case of the petitioners that they have purchased the said lands from the original pattedar, namely, Smt. Ayesha Begum in the year 1954. According to the petitioners herein, there were no tenants in the subject lands at the time of its purchase, which is evident from the Khasra Pahanies of 1954-55. According to the petitioners, there seems to be manipulations in the Tenancy Register by the Village Patwari, namely, Sri Ramchander who was alleged to be one of the tenants and the names of respondents 4 to 6 herein have been incorporated in the Tenancy Register of 1958. In pursuance of such entries, respondents 4 to 6 have obtained ownership certificates under Section 38-E of the Tenancy Act in the year 1975. It is also the case of the petitioners herein that the unofficial respondents nearly after a period of 15 years, filed an application for restoration of possession of the said land and the same has been entertained by the third respondent i.e., Mandal Revenue Officer, Serilingampally Mandal. The case of the petitioners is that some of the persons, who are alleged to be the tenants, filed application for restoration of possession and then only they came to know about the issuance of certificates under Section 38-E of the Tenancy Act. The case of the petitioners is that though they are owners and possessors of the land, the unofficial respondents have obtained certificates under Section 38-E of the Tenancy Act, 1950 without any notice to them and also without following the due process of law. As a result of the application made by the petitioners herein, the second respondent issued notices to all the concerned persons including the unofficial respondents 4 to 6 herein. On receipt of the notices, respondents 4 to 6 appeared before the second respondent and filed affidavits stating inter alia that they were never tenants in the lands in question and their names were incorporated in the tenancy register and that the certificates under Section 38-E of the Tenancy Act, 1950 were given without there being any requisition from them. It is also stated that the respondents 4 to 6 are not claiming any tenancy rights in view of the surrender of the lands. It is also further stated by the petitioners that the second respondent without considering all those affidavits confirmed the proceedings stating that the procedure for surrender of tenancy rights has not been followed and said statements have to be filed before the Mandal Revenue Officer. It is also stated that the Revenue Divisional Officer instead of sending the affidavits and sworn statements to the third respondent for considering the same and to pass appropriate orders under Section 19 of the tenancy Act has confirmed his earlier orders. Being aggrieved by the said orders of confirmation, the petitioners herein preferred appeal before the first respondent and the first respondent after due consideration of the material on record, remanded the matter to the third respondent only to the extent of considering sworn statement and affidavit of respondents 4 to 6 and some other alleged tenants vide proceedings No. 1301/1975 dated 22-9-1981. It is stated that the said matter was held over by the second respondent for considerable period and the same was reopened in the month of December, 1999 on an application made by the fourth respondent under Section 32 of the Tenancy Act, i.e., nearly after a period of 18 years.
5. It is stated that on the application made by the General Power of Attorney holders of Smt. Edulakanti Kistamma, namely, Kalyansingh s/o. Balaramsingh through their Counsel requesting for restoration of possession, the case has been once again reopened and notices were issued to all the concerned on 14-9-1999 fixing the date of hearing as 22-12-1999. It is also further stated that the petitioners herein engaged a Counsel and their Counsel filed vakalats on 7-1-2000 and 22-1-2000.
6. The petitioners herein have also filed their counters stating that one Ayesha Begum is the pattadar and possessor of the agricultural lands in Survey Nos. 49 to 54, 61 and 74 of Nanakramguda Village. The main contention advanced before the second respondent is that on remand, the husband of first respondent i.e., Edulakanti Veeraiah was not at all the tenant and hence issuance of the tenancy certificate in the year 1975 without any enquiry is contrary to law and also violation of principles of natural justice. The petitioners have denied the fact that one Sri B. Ramachander and the husband of the first respondent were joint protected tenants of the lands in Survey Nos.49 to 54, 61 and 74 ad measuring 17 acres. It is also further contended before the Revenue Divisional Officer that no protected tenancy certificates were issued in their favour. It is also contended before the authorities that in the year 1962, the pattadar Smt. Ayesha Begum offered to sell the entire land to the late father of the petitioners and their late father has purchased the same for a valuable consideration and was put in possession of the lands since the date of purchase and they are in possession and enjoyment without any interruption. It is stated that as the Pattedar Smt. Ayesha Begum did not choose to file 'no objection petition' before the concerned authorities for mutation of the name of the late father of the petitioners, the late father of the petitioners filed O.S.No. 5 of 1963 on the file of the District Munsif, West and South Taluk, Hyderabad and obtained decree against Smt. Ayesha Begum and basing on the said decree, the name of the late father of the petitioners has been mutated against the subject lands by the then Tahsildar as pattedar vide his proceedings No.Bl/6485/76 and after the death of the father of the petitioners, the names of the petitioners were mutated as Pattedars against the lands and since then, the petitioners are in possession of the lands. It is also stated by the petitioners before the authorities that the tenants have surrendered their rights in the year 1955 as per Khasra Pahanies of 1954 and there were no tenants after 1954 and hence issuance of protected tenancy certificates to respondents 4 to 6 ignoring and without considering all these facts is violative of the provisions of the Tenancy Act.
7. As seen from the records, written arguments have also been filed by the unofficial respondents hereinbefore the authorities contending that they are tenants and the entries in the Tenancy Register show that the tenants are joint holders.
8. Since Chintalakanti Laxmaiah and B. Ramchander did not appear before the second respondent herein pursuant to the notice, the second respondent set them ex parte and they did not contest the matter. It is also stated in the order of the second respondent in proceedings dated 10-5-2000, that except Paramaiah along with his brother Yadaiah, none else have appeared before him and contested the matter. The second respondent has also concluded that the other Section 38-E certificate holders, namely, Chintalakanti Laxmaiah and B. Ramchander have no case.
9. The Revenue Divisional Officer has also held that the signature of Paramaiah i.e., respondent No.5 herein on the affidavit is not disputed. He has also observed that however, due procedure for surrender has not been followed as the surrender is being disputed by the said Paramaiah and his brother Yadaiah and they may approach the third respondent for taking possession of the land as per the procedure laid down under the Act.
10. Aggrieved by the above orders, the petitioners herein filed appeal before the first respondent i.e., the Joint Collector and the said appeal was also dismissed on 3-3-2001 while directing the third respondent to dispose of the petitions filed for restoration of possession pending before him.
11. The learned Counsel appearing on behalf of the petitioners has contended that as per the Pahanies of 1951, the name of Yedulakanti Veeraiah is shown as tenant. As per Khasra Pahanies of 1954-55, which is the final register, the names of the pattadars has been shown as Ayesha Begum and Sri B. Ramachander and Sri Yedulakanti Veeraiah have been shown as the tenants i.e., Rakshak Kouldars. However, it has been mentioned in the said Pahanies and Khasra Pahanies that they have released of their tenancy ("Rakshak Kouldar B. Ramachandar Rakshak Kouldar, Yedulakanti Veeraiah relinquished, why because, for self cultivation of Pattadar") and the said entries have become final and those entries have not been disputed by any of the respondents. Again as per the pahanies of 1955-58, the names of Sri B. Ramchander and Sri Edulakanti Veeraiah were shown as tenants. It is also mentioned in those Pahanies that they have surrendered their rights.
12. The learned Counsel has argued that the petitioners' late father Mr, Kista Reddy has purchased the said lands from the pattedar Smt. Ayesha Begum in 1962. In view of her inaction in filing 'no objection petition' before the concerned Tahsildar for mutation of the name of the late father of the petitioners in the revenue records, the petitioners' late father filed O.S. No.5 of 1963 on the file of the District Munsif, West and South Taluk, Hyderabad and obtained decree on 24-4-1963 against Smt. Ayesha Begum.
13. The learned Counsel for the petitioners has further argued that on coming to know about the notices of the second respondent, the petitioners herein made a representation to the second respondent by enclosing a copy of the judgment in O.S, No.5 of 1963 requesting him to drop the proceedings under the notice on the ground that the name of their father has been mutated in the records pursuant to the said judgment and that Mr. B. Ramchander and Veeraiah have surrendered their tenancy rights in 1955 itself, which is evident from Khasra Pahanies. The learned Counsel has further argued that before the Revenue Divisional Officer, the so-called protected tenants have filed the affidavits to the extent that they have surrendered their lands and they are not claiming tenancy rights over the said land.
14. The learned Counsel for the petitioners further argued that before issuing the said certificates under Section 38-E of the Tenancy Act, firstly, no notices have been issued either to the land owner or to the petitioners who are interested persons and who are in possession of the land. Secondly, the authorities i.e., first and second respondents have not verified any of the records relating to the existence of the tenancy as per Pahani patrikas for the years 1955-58 and Khasra pahanies for the year 1954-55 wherein it is clearly mentioned that B. Ramchander and Edullakanta Veeraiah have relinquished their tenancy in view of own cultivation by the pattedar. The learned Counsel has also further argued that before issuing any of the certificates to the tenants, the authorities must satisfy themselves whether they are the tenants and also the protected tenants and whether they can be given the certificate to that effect. The issuance of the certificate without verification of the records and without affording an opportunity of hearing, per se, illegal and also violation of the provisions of law and principles of natural justice.
15. The learned Counsel for the petitioners has also further argued that the protected tenancy certificates should be issued to the persons who are holding as tenants and also argued that the protected tenancy certificates should not have been issued to respondents 4 to 6 under Section 37-A of the Tenancy Act without determining the total area of the land under cultivation of the tenants, which is more than three times the area of a family holding for the local area concerned. The learned Counsel has further argued that without determining the family holding, no certificate can be issued under Section 37-A of the Tenancy Act declaring a tenant to be a protected tenant and if any certificate is issued, it is in violation of the provisions contained under Section 37-A of the Tenancy Act.
16. The learned Counsel has also further argued that under Section 37-A of the Tenancy Act, a person who holds the tenancy certificate as on the date of commencement of the Tenancy and Agricultural Lands (Amendment) Act, 1955 holds as tenant any land in respect of which he is not deemed to be a protected tenant under this Act, shall be deemed to be a protected tenant if the total area of the land owned by the landholder including the land under the cultivation of his tenants is more than three times the area of a family holding for the local area concerned.
17. The learned Counsel has further argued that in this case, without determining the extent of holding of the landlord and the tenants, a tenant cannot be deemed to be a protected tenant under Section 37-A of the Tenancy Act. Chapter II of Sections 3 and 4 of the Tenancy Act, 1950 deals with the specification of the local areas and determination of area of family holdings. Without determining the specification of the local area and determination of the area of family holdings, the authorities ought not to have declared R-4 to R-6 as deemed protected tenants under Section 37-A of the Tenancy Act, 1950 and such declaration is in violation of the provisions contained under the Act.
18. The learned Counsel has also further argued that as per the final Tenancy Register of 1951, the names of B, Ramachander and Edulakanta Veeraiah were only shown as tenants and subsequently in the Khasra Pahanies and also in the Pahanies, they were shown as tenants having surrendered their rights.
19. The learned Counsel has also further argued that as per Section 38-E of the Tenancy Act, the ownership of lands held by protected tenants should stand transferred to them from a notified date. The learned Counsel for the petitioners submits that without there being any application under any of the provisions of the Tenancy Act from the so-called tenants or the protected tenants it would amount to acting contrary to the provisions of law. The learned Counsel has further argued that Rule 2 of the A.P. (Telangana Area) Protected Tenants (sic Tenancy and Agricultural Land) Rules, 1950 (for short 'the Tenancy Rules') envisages for preparation of preliminary Record of Tenancies of Agricultural Land and as per Rule 10, the preliminary record to be declared as the provisional Record of Tenancies. The record of agricultural tenancies has to be recorded in Form No.1 and there would be an abstract of tenancies in Form II. If there is any rectification, the same also can be rectified by written application i.e., as specified in Form II. As per Rule 7 of the Tenancy Rules, enquiry has to be made by the Revenue Inspector. The learned Counsel has further argued that even as per Rule 5 of the AP (Telangana Area) Protected Tenants Rules, 1956, on the date fixed under Rule 4 of the said Rules, the Tribunal shall after hearing the objections preferred by landholders or the interested persons make inquiries and subject to the provisions contained in the proviso to Section 37-A declare the provisional list with or without modifications as final and affix such final list to the notice board. It requires hearing of the objections preferred by the landholders or interested persons while making the enquires. The learned Counsel has further argued that as per Rule 3 of the A.P. (Telangana Area) Protected Tenants Rules, 1956, the Tribunal after necessary enquiry has to prepare a provisional list in Form A containing the names of such tenants as may be deemed to be under Section 37-A to the extent of land held by such tenants and the total area of such tenants including the lands under cultivation of the tenants. It is also further contended that the provisional list prepared under Rule 3 has to be published. According to Rule 4, the list prepared under Rule 3 of the Tenancy Rules, 1956 by affixing a copy thereof. As per Rule 5, the Tribunal has to hear the objections preferred by the landholders or other interested persons subject to the provisions contained under proviso to Section 37-A of the Tenancy Act and declare the provisional list with or without modification as final. The learned Counsel has further argued that the Tribunal has to issue certificate in Form B to each of such tenants who shall be deemed to be the protected tenants and cause mutation of entries in the records of rights under Rule 6.
20. The learned Counsel has further argued that under Rule 9 of the Tenancy Rules, if the protected tenant on whose application action is taken as laid down in clause (a) or (b) of Rule 8 of the Tenancy Rules does not apply for restoration of possession within the time fixed by the Tribunal, all his rights as a protected tenant shall be forfeited. The learned Counsel has further argued that there must be an enquiry whether the person is holding the land as a tenant as on the date of commencement of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1956. The learned Counsel has further argued that in view of the entries in the Final Tenancy Register of 1951 holding that one Edulakanta Veeraiah and B. Ramchander had surrendered their tenancies, they have no right to get their names included as protected tenants as per the certificate issued in 1958. The learned Counsel has further argued that had the authorities enquired into the records, the authorities would have come to the conclusion that none of the unofficial respondents 4 to 6 are tenants as per Khasra Pahanies of 1955-58. The learned Counsel for the petitioners contends that as per Khasra Pahanies, none of the unofficial respondents 4 to 6 names have been shown in the Tenancy Registers except the names of B. Ramchander and Yedulakanta Veeraiah, It is also mentioned in Khasra Pahanies of 1955-58 that B. Ramchander and Yedulakanta Veeraiah have surrendered their tenancy rights. The learned Counsel has further argued that in the absence of the names of the unofficial respondents in the abstract of tenancies, they cannot be termed as protected tenants as on the date of commencement of the Act. According to the learned Counsel, as per the Rules contained in the A.P. Agricultural Land Rules, 1951, which have come into effect from 15-2-1951, framed under Section 35 of the Tenancy Act, the tenant has to obtain a declaration that he is the protected tenant. Secondly, in the absence of any determination of the enquiry, they are not entitled for any certificate and the certificate issued under Section 37-A without conducting any enquiry cannot be the basis for issuance of certificate under Section 38-E of the Act, which was issued without any enquiry or any determination of the family holding.
21. The learned Counsel has further argued that the authorities have every power to enquire into the matter in detail as laid down by this Court in catena of decisions. The learned Counsel has further argued that the objection petitions filed by the so-called unofficial respondents before the Revenue Divisional Officer show, as if they have filed objection petitions. The petitioners as land holders have already filed an application on 17-2-1975 enclosing a copy of the judgment of the Civil Court through their Advocate and also on subsequent dates contending that the unofficial respondents are not protected tenants. However, the second respondent has not issued any notice of hearing either to the original pattedar or the present petitioners who are the persons interested in the proceedings. The learned Counsel has further argued that in the absence of any enquiry as to the total area of the land owned by the landholder, which is more than three times of the area of the family holding, a certificate issued under Section 37-A is itself invalid and the certificate as to the ownership of the lands held by the protected tenants under Section 38-E of the Tenancy Act has no value.
22. The learned Counsel has further argued that in the absence of any of the notices either to the landholder or the person interested, granting of certificate under Section 37-A/38-E itself is invalid. The learned Counsel has further argued that had the unofficial respondents been the tenants, their names could have been found place in the Khasra Pahanies of 1995-58 and also the subsequent pahanies. The learned Counsel has also further argued that finality cannot be attributed to the provisional list prepared under Rule 4(2) as there should be individual communication of the said list, both to the landholder and protected tenants as held by this Court in the case of P.M. Narayana Swamy and others v. the AM. R.D.O. (L.R.A.), 1978 (1) ALT 16 (NRC). The learned Counsel has further argued that the petitioners are entitled to raise the objections to the very grant of certificate before it is granted or in appeal or in revision. Till the certificate reaches the finality, it cannot be held to be a conclusive evidence of ownership. As the stage of delivery of possession has not yet reached in this case, the petitioners are entitled to raise objections with regard to the issuance of notice (sic certificate) under Section 37-A of the Tenancy Act which culminated in issuance of certificate under Section 38-E of the Act. In the absence of the verification of the records to know whether the unofficial respondents are the tenants, the certificates which have been issued have no force in the eye of law.
23. The learned Counsel has further argued that it is between the landlord and the petitioners to decide the validity of judgment confirming the right of ownership and the authorities have no jurisdiction whatsoever to decide the binding nature of the judgment as it did not deal with the tenancy rights of the tenants. The judgment was between the landlord and the father of the petitioners herein.
24. The learned Counsel for the petitioners submits that the petitioners have been in possession of the land from the date of purchase of the same by their late father and that the names of the unofficial respondents 4 to 6 did not find place in Adangal or Khasra Pahanies except the names of B. Ramchander and Yedulakanta Veeraiah. Even against the names of those two persons, it has been mentioned that they have surrendered their tenancies. Hence, the action of the respondents 1 to 3 in declaring the unofficial respondents 4 to 6 as protected tenants is illegal, arbitrary and contrary to the record.
25. It is also further contended that the Edulakanti Kistamma w/o. late Veeraiah was represented by her General Power of Attorney Holders, namely, Kalyan Singh and Sanjeeva Reddy before the first respondent. Before the first respondent, the name of the father of Kalyan Singh has been mentioned as Balram Singh and whereas the name of the father of Sanjeeva Reddy is mentioned as Rami Reddy. In the present CRP, Sri Sanjeeva Reddy filed counter on behalf of the fourth respondent and sixth respondent contending that the sale of the land by the pattedar cannot affect the rights of the protected tenants. In the said counter, the father's name of Edulakanti Sanjeeva Reddy is mentioned as late Edulakanti Veeraiah.
26. The learned Counsel for the petitioners submits that the petitioners filed CMP No.22541 of 2001 in this CRP for taking action against Sanjeeva Reddy on the ground of perjury and impersonation since he mentioned his father's name as Edulakanti Veeraiah though he is not son of Veeraiah. Moreover, he mentioned his father's name as Rami Reddy before the first respondent. The learned Counsel for the petitioners also submits that the name of the father of Began Pentiah is not mentioned before the first respondent, whereas in this CRP his father's name has been mentioned as Kistaiah. In none of the petitions, he has stated anything about the date of death of his father.
27. The learned Counsel for the petitioners also submits that the petitioners have filed W.P. No.5381 of 2000 when an application under Section 32 of the Tenancy Act is filed. It is also stated that the said writ petition has been dismissed at the admission stage. The learned Counsel for the petitioners submits that dismissal of the said writ petition has no binding force in view of the observations made by the Full Bench in the case of SADA v. Tahsildar, Utnoor, , that finality to the proceedings under the Tenancy Act is reached after exhausting of all the remedies i.e., appeal and revision.
28. The learned Counsel for the petitioners has further argued that jurisdiction of Civil Court is barred under Section 99 of the Tenancy Act only to decide disputes between the protected tenant and the original landowner and not the dispute of civil nature between the landlord/ protected tenant as the case may be and the third party claiming certain rights.
29. The learned Counsel has further argued that (with regard to) the contention of the respondents that the ownership certificates (have been) issued in favour of the other protected tenants over the land in question have become final and cannot be reopened now has no force in view of the fact that the Revenue Divisional Officer has issued notices to all the parties to the proceedings and reopened the case in pursuance of the application made by the Edulakanti Kistamma on 6-11-1999. However, the learned Counsel has argued that the second respondent by its order dated 10-5-2000 has made clear that on receipt of the application made by the General Power of Attorney holders of Edulakanti Kistamma, the case was once again reopened and notices have been issued to all the concerned on 14-2-1999 and the sixth respondent herein has been represented by the Counsel Sri P. Ram Reddy and also filed affidavit. The learned Counsel has also argued that the second respondent has set Chinthalakanti Laxmaiah (R-4 before the 2nd respondent) and B. Ramchander (R-6 before the second respondent) exparte. It is also argued that except Goundla Parmaiah (R-6 before the second respondent and R-5 herein), none else have contested the matter. The Counsel has further argued that the Revenue Divisional Officer also observed that the signature of R-5 is not disputed. However, the due procedure for surrender has not been followed. Since Sri Paramaiah and his brother, Yadaiah are disputing the surrender of their Protected Tenancy Rights, they may approach the third respondent for taking possession of the lands as per the procedure laid down under the Act. The above observation is based without verification of records. Thus, it is clear that there is no finding by the Revenue Divisional Officer directing others to approach the Mandal Revenue Officer for taking possession of the land,
30. The seventh respondent filed C.M.P. No. 13232 of 2002 before this Court for impleading himself as a party respondent on the ground mat he purchased the land from the revision petitioners and he paid entire sale consideration and he was put in possession on the same day. He also stated that before entering into agreement, he verified the records and came to conclusion that no tenants are in the lands and that the revision petitioners purchased the same from one Ayesha Begum and hence he purchased the same. On the said petition, this Court permitted him to implead himself as seventh respondent in the CRP.
31. Respondent No. 4 Edulakanti Kistamma w/o. late Edulakanti Veeraiah was represented through General Power of Attorney Holders, namely, Sri Kalyan Singh and through her Counsel Sri Pratap Singh Subedar and she filed application on 6-11-1999 stating that her husband late Edulakanti Veeriah is the protected tenant jointly with Sri B. Ramchander in respect ofthe agricultural land in survey Nos.49 to 54, 61 and 74 ad measuring Ac. 17.00 situated at Nanakramguda, Serilingampally Mandal. Before the second respondent, the father's name of Sri Kalyan Singh was mentioned as Balaram Singh and the father's name of Sanjeeva Reddy was shown as Kami Reddy whereas in this Court the GPA of Edulakanti Kistamma, Sri Sanjeeva Reddy has shown his father's name as Edulakanti Veeraiah.
32. Sri A. Sudershan Reddy has argued that the said Edulakanti Veeraiah died issueless and hence the said Sanjeeva Reddy has adopted the name of Edulakanti Veeraiah as his father and hence he is not liable for any contempt. The learned Counsel has also further argued that the name of Edulakanti Veeraiah is figured in the Tenancy Register of 1951 and hence he is the protected tenant in respect of land in survey Nos.50, 61 and 74 and the other half share belong to B, Ramchander in respect of survey Nos.51, 52, 53 and 54. It is also contended that the names of these protected tenants were found in the tenancy registers of 1951 and also 1958. As certificate issued under Section 38-E of the Tenancy Act has become final, the petitioners have no right whatsoever to agitate their rights in the absence of any evidence that they have purchased the lands. It is also contended that the said sale is contrary to Sections 47 arid 48 of the Tenancy Act and it is also contended that even assuming that there is any sale, the said sale is contrary to Sections 47 and 48 of the Tenancy Act and hence the same is void. It is also further contended that the said sales do not affect the rights of the tenants. In view of the fact that certificate issued by the second respondent under Section 38-E of the Tenancy Act having become final on 22-9-1981 itself, the petitioners have no right whatsoever to agitate their rights in the present CRP. It is also further contended that in pursuance of judgment in W.P. No. 5381 of 2000 filed by the third petitioner in the present revision petition and dismissal of the said writ petition at the admission stage on 28-4-2000 and in view of the finality reached to the orders, the petitioners cannot agitate their rights in the present CRP.
33. The learned Counsel appearing on behalf of the sixth respondent Mr. M.V. Durga Prasad contended that the sixth respondent was the joint protected tenant along with Gandla Radhiah and Sri Ch. Lakshmaiah in respect of land in Survey Nos.50, 51, 52, 53 and 54 ad measuring Ac,2.37 guntas and they have one third share each. It is also further argued that certificate under Section 38-E having been issued and it has become final in 1981 itself, the same cannot be reopened. Even assuming that the original pattedar has sold away the said land, the said sale transactions are void in view of provisions under Sections 47 and 48 of the Tenancy Act.
34. It is also contended by the learned Counsel for respondents 4 to 6 that they are entitled for certificates under Section 38-E of the Tenancy Act as they are the protected tenants and it is also further argued that having lost the case of the petitioners in W.P. No.5381 of 2000, which was filed against respondents 1 to 4 and 6, the petitioners cannot agitate their rights by way of filing the present CRP, The learned Counsel has also argued that this Court should not go beyond the pleadings, as the matter has become final before the first respondent on 22-9-1981. By the said order, the first respondent has remanded the matter only to decide the issue with regard to the filing of the affidavits by Sri Ramchander, Paramaiah and Laxmaiah. The learned Counsel has further argued that in view of the above order, the matter cannot be reopened as the certificate issued under Section 38-E of the Tenancy Act has reached its finality and it is the conclusive evidence. It is also stated that the name of the fifth respondent is being found as joint protected tenant in the Tenancy Registers of 1951 and 1958.
35. The learned Senior Counsel appearing on behalf of the impleaded petitioner i.e., respondent No.7, Sri Subba Reddy has argued that his client has purchased the lands from the petitioners subsequently and hence they got themselves impleaded. The learned Counsel has further argued that after the remand by the Joint Collector, the matter is reopened and in the order itself it has been stated that the notices have been issued to all the parties and the matter is reopened and some of the respondents have represented their cause before the second respondent and also before the first respondent and hence they cannot say that the notices issued under Section 38-E of the Tenancy Act have become final. It is also argued that the petitioners have rights to agitate their rights till the delivery of the possession.
36. Interestingly, all the Counsel have placed their reliance on the Full Bench Judgment of this Court in SADA (supra) .
37. In view of the complicity of the facts, this Court is of the view that the matter has to be dealt with from the various propositions of law and also with regard to the provisions of the Tenancy Act 1950, in extenso.
38. It is an undisputed fact that Smt. Ayesha Begum was possessor and the original pattedar of land in Survey Nos.49 to 54, 61 and 74 of Nanakram Guda Village, Serilingampally Mandal, Ranga Reddy District. The petitioners herein seem to have purchased the said land by virtue of the agreement of sale. As the said Ayesha Begum did not choose to file no objection petition before the concerned authorities for mutation of the name of the late father of the petitioners, the late father of the petitioners filed O.S.No. 5 of 1963 on the file of the District Munsif, West and South Taluk, Hyderabad and obtained decree on 24-4-1963 against Smt Ayesha Begum and basing on the said decree, the name of the late father of the petitioners has been mutated against the subject lands by the then Tahsildar as pattedar vide proceedings No.B/6485/76. Certificates under Section 38-E of the Tenancy Act have been issued by the Additional Revenue Divisional Officer, Land Reforms Tribunal, Hyderabad West on 31-5-1975 to the said Edulakanti Veeraiah, husband of R-4 and R-5 and R-6. By the said certificate, the Additional Revenue Divisional Officer has ordered that the provisional list published under Rule 4 is declared as final and directed to issue final list aceordingly. Before the said officer, Chintalakanti Laxmaiah, Goundla Parmaiah and B. Ramchander filed affidavits stating that they have surrendered their rights. The petitioners herein also contended before the concerned authority that their father late Sri Krishna Reddy purchased the land from Ayesha Begum and when she refused to file no objection petition for mutation of his name, their father filed suit in O.S.No.5 of 1963 and the said suit was decreed. In pursuance of the decree of the suit, they have right to claim the ownership. The said order has been questioned before the first respondent. Very peculiarly, the first respondent remanded the matter to the lower authority by his order dated 22-9-1981 directing the second respondent to examine whether the affidavits can be accepted in terms of the Tenancy Act or not. It is also observed in the said order that insofar as other protected tenants are concerned, he did not see any reason to interfere with the orders of the second respondent.
39. The record shows that on remand, the matter was lying over in the office of the second respondent from 1981 to 6-11-1999 i.e,, till an application has been moved by Kistamma through her GPA Holder Sri Kalyan Singh nearly after a period of 18 years. It has been observed in the said order as follows:
"On receipt of the said petition, the case has been once again reopened and notices were issued to all concerned vide this office Ref.No.G/7894/82 dated 14-12-1999 while fixing 22-1-2000 as date of hearing. Subsequently, the case has been adjourned and posted to 19-2-2000, 10-3-2000 and finally to 25-3-2000."
40. It is also further observed that in the operative portion of the order as follows:
"on issue of notices in the present case, except Paramaiah, R-6 along with his brother, namely, Yadaiah none else have appeared before me and contested the matter. Therefore it is concluded that the other Section 38-E certificate holders i.e., R-4, Ch. Laxmaiah and R- 7, B. Ramchander have no case. Hence, they are set ex parte."
41. The second respondent further observed that the signature of Paramaiah is not disputed. However, due procedure for surrender has not been followed. Since Sri Paramaiah and his brother Yadaiah disputing their surrender of Protected Tenancy Rights, they may approach the third respondent for taking possession of the land as per the procedure laid down under the Act and the Rules. This order again came to be attacked before the first respondent and the first respondent has confirmed the same by his order dated 3-3-2001. Against the said order the present CRP has been filed under Section 91 of the Tenancy Act, 1950.
42. At this juncture, it is pertinent to mention that even though by the earlier order of the first respondent dated 22-7-1981, the matter has been remanded to enquire into the affidavits filed by the protected tenants and the second respondent having reopened the matter by issuing notices to all the parties has come to the conclusion that the said surrender is not in consonance with the procedure laid down under the Tenancy Act and hence the finding of the first and second respondents that Edulakanti Veeraiah is a protected tenant has no force in view of the following observations of the Full Bench of this Court at para 54 in the case of SADA (supra):
"When such procedure consistent with principles of natural justice has been laid down in the Rules, we fail to see how any question of hardship or injustice can legitimately remain even after the issuance of certificate under Section 38-E(2) after following the said procedure. It is for that reason that the certificate if it has become final, becomes 'conclusive evidence' as stated in Section 38-E(2). All objections to the very grant of the certificate must be raised before it is granted or in appeals or revision and cannot be permitted to be raised at the stage of delivery proceedings under the new proviso to Section 38-E(2). xxx"
43. Thus, the Full Bench has held that once the ownership certificate has been issued to the protected tenant under Section 38-E(2), it was conclusive evidence of ownership and the said certificate could not be challenged at the stage of delivery of possession under proviso to Section 38-E(2). The proviso to Section 38-E(2) deals with the delivery of possession by the Tahsildar as per the observations made by the Full Bench. The Full Bench observed that the landholder or the person interested has got every right to agitate their rights in appeal or revision and then only the order will become final and conclusive evidence. In this case, as evident from the material on record, the stage of delivery of possession has not yet come as the matters are pending before the authorities nearly for a period of 19 years. In view of the above finding, the petitioners have every right to agitate their rights as the certificate has not reached its finality as the Revision Petition is pending before this Court.
44. In view of the above observations of the Full Bench, the matter has to be decided as to whether the certificate issued under Section 38-E by the respondents is based on records?
45. As seen from the material available on record, even though the first respondent has remanded the matter to the second respondent only to ascertain the genuineness of the affidavits and as litigation was continued by different proceedings, which is evident from the material available on record, it has to be held that the entire proceedings are continuous and hence the petitioners have got every right to raise their objections either in appeal or in revision as held by the Full Bench of this Court in SADA (supra).
46. The material available on record shows that on issuance of Provisional List, the petitioners herein have filed an objection petition claiming that they are in continuous possession of the lands since 1950 and the same has been confirmed by the judgment of the Munsif Magistrate, Hyderabad (West) in O.S. No.5 of 1963. While the proceedings are pending before the Additional Revenue Divisional Officer, Chintalakanti Laxmaiah, Goundia Parmaiah and B. Ramchander, who were respondents 4, 6 and 7 before the RDO, filed affidavits duly attested by the III Metropolitan Magistrate, Hyderabad on 12-3-1975, 10-3-1975 and 20-3-1975 stating that they have surrendered their Protected Tenancy Rights in favour of the petitioners herein. However, the Addl. Revenue Divisional Officer has dismissed the objection petition filed by the petitioners herein on the ground that the surrender affidavits filed by the above persons are not in good faith and issued final list of Protected Tenants as well as Section 38-E Ownership Certificates to the Protected Tenants on 31-5-1975.
47. For proper appreciation of the matter, it is relevant to extract Section 38-E of the Tenancy Act:
"38-E: Ownership of lands held by protected tenants to stand transferred to them from a notified date:--(1) Notwithstanding anything in this Chapter or any law for the time being in force or any custom, usage, judgment, decree, contract or grant to the contrary, the Government may, by notification in the Andhra Pradesh Gazette, declare in respect of any area and from such date as may be specified therein, that ownership of all lands held by protected tenants which they are entitled to purchase from their landholders in such area under any provision of this Chapter shall, subject to the condition laid down in Sub-section (7) of Section 38, stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands:
Provided that where in respect of any such land, any proceeding under Section 19 or Section 32 or Section 44 is pending on the date so notified, the transfer of ownership of such land shall take effect on the date, on which such proceeding is finally decided, and when the tenant retains possession of the land in accordance with the decision in such proceeding.
Explanation :--If a protected tenant, on account of his being dispossessed otherwise than in the manner and by order of the Tahsildar as provided in Section 32, is not in possession of the land on the date of the notification issued thereunder, then for the purpose of the Sub-section, such protected tenant shall, notwithstanding any judgment, decree or order of any Court, or the order of the Board of Revenue or Tribunal or other authority, be deemed to have been holding the land on the date of the notification; and accordingly, the Tahsildar shall notwithstanding anything contained in the said Section 32, either suo motu or on the application of the protected tenant hold a summary enquiry, and direct that such land in possession of the landholder or any person claiming through or under him in that area, shall be taken from the possession of the landholder or such person, as the case may be, and shall be restored to the protected tenant and the provisions of this Section shall apply thereto in every respect as if the protected tenant had held the land on the date of such notification.
(2) A certificate in the prescribed form declaring him to be owner shall be issued by the Tribunal after holding such enquiry as may be prescribed, to every such protected tenant and notice of such issue shall simultaneously be issued to the landholder. Such certificate shall be conclusive evidence of the protected tenant having become the owner of the land with effect from the date of the certificate as against the landholder and all other persons having any interest therein:
Provided that where the land, the ownership of which has been, transferred to the protected tenant under Sub-section (1), is in the occupation of a person other than the protected tenant or holder of the certificate issued under this Sub-section, it shall be lawful for the Tahsildar to restore the possession of the said land to the protected tenant or holder of the certificate, after giving notice of eviction to the occupant thereof, in the prescribed manner.
(3) Within ninty days from the date of notice of issue of the certificate under sub-
section (2), every landholder of lands situated in the area specified in the notification under Sub-section (1), shall file an application before the Tribunal for the determination of the reasonable price of his interest in the land which has been transferred to the ownership of a protected tenant under subsection (1), and if an application is not so filed within such period by the landholder, the Tribunal may suo motu proceed to determine such price and thereupon all the provisions of Sub-sections (4) to (8) of Section 38 shall mutatis mutandis apply to such application.
xxxx"
48. As per the said Section, the Government may declare in respect of any area that the ownership of all lands held by protected tenants who are entitled to purchase from their landholders subject to the conditions laid down in Sub-section (7) of Section 38 shall stand transferred to and vest in the protected tenants and the protected tenant shall be deemed to be the full owners of such lands.
49. The Government in G.O. Ms. No. 125, Revenue (G) Department dated 22-2-1973 issued the Rules called the Andhra Pradesh (Telangana Area) Protected Tenants (Transfer of Ownership of Lands) Rules, 1973. Rule 3 of the said Rules deals with the publication of notice. As per the said Rule, the Tribunal shall cause wide publicity to the notification issued by the Government and published in the Andhra Pradesh Gazette under Sub-section (1) of Section 38-E in each village situated in the area notified therein by affixing copies of the notification in the village chavidi or any other conspicuous place in the village and by beat of tom-tom.
50. Rule 4 of the said Rules deals with the enquiry. The said Rule is extracted below for ready reference:
"4. Enquiry :--(1) As soon as may be after the issue of the notification under Sub-section (I) of Section 38-E, the Tribunal shall, after taking into consideration the tenancy records, if any, prepared and maintained under the Act and any other record of rights or revenue accounts if any, for the time being in force, and after holding or causing to be held summary enquiry in respect of the lands held by the protected tenants and their respective landholders, determine the extent of lands held or deemed to be held by the protected tenants the extent of land held by the landholders on the date notified under Section 38-E, and the extent which the protected tenant is entitled to purchase from the landholder and prepare a provisional list in Form I showing the names of all protected tenants to whom the ownership is deemed to have been transferred under Section 38-E and the extent and description of land so transferred and vested in the protected tenants.
(2) The provisional list prepared under Sub-rule (1) together with a notice inviting objections thereto and fixing a date for hearing such objections (not being later than 15 days from the date of publication) shall be caused to be published by the Tribunal by affixing a copy thereof on the notice-board of the village Chavidi or at any other conspicuous place in the village and by beat of tom-tom in the village. A copy of the list together with the notice shall also be communicated to the landholders and the protected tenants concerned at their usual place of residence, if any, in the village.
(3) On the date fixed under Sub-rule (2), or on any subsequent date to which the enquiry may be adjourned, the Tribunal shall after hearing objections, if any, received from any landholder protected tenant or any other interested person, and making such further enquiry as may be necessary, declare the provisional list with or without modifications, as a final list and cause it to be published by affixing a copy thereof on the notice board of the village Chavidi or at any other conspicuous place in the village and by beat of tom-tom in the village."
51. Rule 5, which deals with the Issue of Certificate, reads as follows:
"5. Issue of certificate :--(1) After the declaration of the final list under Sub-rule (3) of Rule 4, the Tribunal shall issue a certificate under Sub-section (2) of Section 38-E in Form II to every protected tenant included in the final list, declaring him to be the owner of the land specified against him in the final list and shall cause the necessary entries to be made in the relevant or other revenue accounts of the village.
(2) Simultaneously with the issue of certificate under Sub-rule (1), a notice in Form III together with a copy of the said certificate shall be issued to every landholder whose land stands transferred to the protected tenant under Section 38-E."
52. Rule 6 of the Rules deals with the determination of reasonable price. As per Rule 4 of the Rules, a duty is cast upon the Tribunal to take into consideration the tenancy records, if any, prepared and maintained under any other record of rights and revenue accounts and after holding or causing to be held summary enquiry in respect of the lands held by the protected tenants and their respective landholders, determine the extent of lands held or deemed to be held by the protected tenants and the extent of land held by the landholders on the date notified under Section 38-E of the Tenancy Act and the extent which the protected tenant is entitled to purchase from the landholder and prepare a provisional list in Form I. The provisibnal list prepared together with a notice inviting objections thereto shall be caused to be published by the Tribunal by affixing a copy thereof on the notice-board of the village or at any other conspicuous place. As per Sub-rule (3), the Tribunal shall after hearing objections received from any landholder, protected tenant or any other interested person, shall make such further enquiry and declare the provisional list as a final list and cause it to be published by affixing a copy thereof on the notice-board of the village or any other conspicuous place.
53. From the above, it is clear that the Tribunal has to conduct an enquiry firstly with regard to the tenancy as per tenancy records and secondly in respect of land held by the protected tenants by inviting objections from the landlords, protected tenants or any other interested persons and the Tribunal has to declare the provisional list as a final list and cause it to be published by affixing the same in village Chavadi or in any other conspicuous place.
54. The order of the Additional Revenue Divisional Officer dated 31-5-1975 reads as follows:
"The worksheet prepared by the Special Deputy Tahsildar is perused. The total holding of Smt. Ayesha Begum is 127.00 acres. The tenancy record of 1951 and 1958, it is seen from the tenancy record, that protected tenants for survey numbers 49, 51, 52, 53, and 54 are the one and the same issued in 1958 under Section 37-(A)".
55. Except stating the above, nothing has been mentioned by the Revenue Divisional Officer about the names contained in the tenancy records of 1951 and also 1958. This Court has called for the records from the lower authorities. The Government Pleader has produced all the records including the tenancy record of 1951 and Khasra Pahanies of 1954 and 1955 and pahani patrikas for the years 1955-58. On verification of the original Tenancy Register of 1951, which has been submitted to this Court, it is seen that the name of the pattedar of the lands in question has been shown as Ayesha Begum and the names of the tenants have been recorded as Edulakanti Veeraiah and B. Ramchander for the land in Survey Nos.49, 50, 51, 52, 53, 54, 61 and it has also been mentioned that they have surrendered their tenancy rights for the purpose of self cultivation of the landlord/ pattedar. Except these two names, the final Tenancy Register did not contain any other names. It is also pertinent to note here that Khasra Pahanies of 1954-55 also contain the names of the pattedar as Ayesha Begum. Against the names of Edulakanti Veeraiah and B. Ramchander, it has been stated that they have surrendered their rights for personal cultivation of the lands by the owner. The Khasra Pahanies, which are prepared in pursuance of the A.P. (Telangana Area) Land Census Rules, 1954, contain information with regard to the existing village records i.e., setwar, pahani patrika, record of rights, the tenancy registers. The information whether oral or in writing furnished by the interested person in response to the requisitions made under Rule 4 of the Census Rules has to be the basis for preparation of Khasra Pahani. The interested person has been defined under Rule 2(e) of the Census Rules. As per Rule 2(e) of the Census Rules, interested person means a person, who has or who claims to have any interest, in lands either as landholder, occupant, mortgagee, assignee of rent, tenant or otherwise. From the Khasra Pahanies of 1954-55, the entries are shown with regard to the pattedar as Ayesha Begum and the tenants as B. Ramchander and Edulakanti Veeraiah. However, it has been mentioned that the tenants surrendered their tenancy for personal cultivation of the pattedar.
56. In the above entries of Khasra Pahanies, there is no mention of respondents 5 and 6 as tenants or any other names of the persons who have filed their affidavits before the Revenue Divisional Officer i.e., Ch. Laxmaiah, Goundla Parmaiah and B. Ramchander. At this juncture, it is pertinent to note that in the pahanies for the years 1955-58 except the names of Abdul Azeez and Begari Balaiah as cultivators of land in Survey Nos.49,50,51,52,53 and 54 no other names have been mentioned as tenants. Even for survey Nos.61 and 74, only the name of Abdul Azeez has been mentioned in the pahanies. In Khasra Pahani for 1954-55, though the names of B. Ramchander and Edulakanti Veeraiah have been mentioned as protected tenants, it has been stated under their names that they have surrendered their rights for cultivation by the owner of the land.
57. In this case, the order of the Additional Revenue Divisional Officer shows that he has not exercised the jurisdiction vested in him to look into the final records of 1951, which is the basis for all the proceedings. To come to a satisfactory conclusion by the authorities themselves whether the respondents 4 to 6 are the tenants or protected tenants, an enquiry should be conducted by the authorities. As per Section 38(7) of the Tenancy Act, the protected tenant has a right to purchase the lands subject to certain conditions, which read as follows:
"38(7): The right of a protected tenant under this section to purchase from his landholder the land held by him as a protected tenant shall be subject to the following conditions, namely:--
(a) If the protected tenant does not hold any land as a landholder the purchase of the land held by him as a protected tenant shall be limited to the extent of the area of a family holding for the local area concerned;
(b) If the protected tenant holds any land as a landholder, the purchase of the land held by him as a protected tenant shall be limited to such area as along with other land held by him as a landholder will make the total area of land that will be held by him as a landholder equal to the area of a family holding for the local area concerned:
Provided that the land remaining is more than the land which the protected tenant is entitled to purchase under this Section, the first preference to purchase the said land, at the prevailing market price in the local area, shall vest in the protected tenant;
xxxx".
58. From the above, it is clear that as per Section 38(7)(a) of the Tenancy Act, 1950, if the protected tenant does not hold any land as a landholder, the purchase of the land held by him as a protected tenant shall be limited to the extent of the area of a family holding for the local area concerned. As per clause (b) of Section 38(7) of the Tenancy Act, the purchase of land held by the protected tenant shall be limited to such area along with other land held by him as the landholder will make the total area of land that would be held by him equal to the area of a family holding for the local area concerned.
59. A Division Bench of this Court in the case of Islamia Arabic College v. Balaram Singh, (D.B.), has held that Section 38-E of the Tenancy Act confers a special right on the protected tenant to acquire ownership of the lands in his possession provided that the landlord is possessed of more than two family holdings. If the landlord holds less than two family holdings, then the protected tenant is not entitled to ownership certificate.
60. In this case, the official record produced by the learned Government Pleader before this Court shows that no enquiry has been conducted with regard to the holdings of the landlord and also tenant i.e., whether the landlord possessed more than two family holdings and there is no finding to that effect. In the absence of such enquiry and finding, it has to be held that the Additional Revenue Divisional Officer by his order dated 31-5-1975 has issued certificate under Section 38-E of the Act without looking into the record and the said order has been confirmed by the first respondent by his orders dated 22-9-1981, 10-5-2000 and 3-3-2001 mechanically.
61. The above order of the Additional Revenue Divisional Officer dated 31-5-1975 has been confirmed by the Joint Collector by his order dated 22-9-1981, 10-5-2000 and 3-3-2001. It shows that the Joint Collector also did not look into the records on this aspect. With reference to the observations made by the Additional Revenue Divisional Officer that the Tenancy Registers of 1951 and 1958 have been verified, it has to be held that the Tenancy Register of 1951, which has been prepared as the final register of tenancy, shows the names of B. Ramchander and Edulakanti Veeraiah as having surrendered their rights. As per the entries in Khasra Pahanies of 1954-55 also, they have surrendered their rights. In the absence of recording the names of the respondents 5 and 6 as tenants in the final Tenancy Register of 1951 or in the Khasra Pahanies of 1954-55, they cannot be declared as tenants or protected tenants. In view of the fact that the said entries have become final, the husband of the fourth respondent and B. Ramchander could not be declared as protected tenants as they have surrendered their rights and also in the absence of any application for delivery of possession. This observation is necessitated because of the findings of the Additional Revenue Divisional Officer stating that the Tenancy Register of 1951-58 has been verified.
62. For proper appreciation of the same, it is relevant to extract the provisions of Section 37-A of the Tenancy Act, which reads as follows:
"37-A. Persons holding lands as tenants at the commencement of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands (Amendment) Act, 1955 to be deemed to be protected tenants :--(1) Notwithstanding anything contained in this Act, every person who at the commencement of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands (Amendment) Act, 1955 holds as tenant any land in respect of which he is not deemed to be a protected tenant under this Act, shall be deemed to be a protected tenant if the total area of the land owned by the landholder including the land under the cultivation of his tenants is more than three times the area of a family holding for the local area concerned:
Provided that nothing in this Section shall affect the rights of any other person who already holds a protected tenancy certificate in respect of such land or whose rights as protected tenant are under investigation before a competent authority, if such other person applies to the Tribunal for safeguarding his rights within a period of six months from the commencement of the A.P. (T.A.) Tenancy and Agricultural Lands (Amendment) Act, 1955.
(2) The rights as a protected tenant of a person deemed under Sub-section (1) to be a protected tenant shall be recorded in the Record of Rights or, where there is no Record of Rights, in such village record as may be prescribed."
63. A tenant to be declared as deemed protected tenant under Section 37-A of the Tenancy Act, he must be holding any land as a tenant as on the date of commencement of the Act, 1955 i.e., 4-2-1955. For declaring a person under Section 37-A of the Tenancy Act as a deemed protected tenant, a duty is cast upon the authorities concerned to verify whether a person is holding as a tenant. A Full Bench of this Court in the case of SADA (AIR 1988 A.P. 77) has held that protected tenants are dealt with in Chapter IV of the Tenancy Act and fall under a limited category. They are referred to in Sections 34, 37 and 37-A of the Tenancy Act. The Tenancy Act, 1950 made it clear that "Protected Tenants" fall under Section 34, "Deemed Protected Tenants" fall under Sections 37 and 37-A of the Tenancy Act subject to certain conditions.
64. The main contention of the unofficial respondents 4 to 6 is that they are protected tenants holding the land jointly. According to their own pleadings in the counters filed before this Court in the present CRP, they are the protected tenants holding the land jointly. If that is so, the provisions of Explanation III of Section 34 of the Tenancy Act would apply to the said respondents.
The said provision is extracted below for ready reference:
"34. Protected tenants :--(1) A person shall, subject to the provisions of Sub-sections (2) and (3), be deemed to be a protected tenant in respect of land if he-
xxxx Explanation III :--Where any land is held by two or more person jointly as tenants all such persons shall, if any of them cultivated and continues to cultivate such land personally and if the other conditions specified in this Section are fulfilled, be deemed to be protected tenants in respect of such land.
(2) and (3) xxxx"
65. As narrated above, even such persons who fall under Section 34 of the Tenancy Act shall apply under Section 35 of the Tenancy Act within a period of one year from the commencement of Act, 1950 for decision of the question and the Tahsildar shall after enquiring into the claim or claims in the manner prescribed declare who is entitled to be deemed as a protected tenant, or as the case may be that no person is so entitled.
66. As seen from the material available on record in this case, except claiming by the unofficial respondents 4 to 6 that they are protected tenants, their pleadings are silent with regard to making of an application within a period of one year from the date of the commencement of the Act as required under Section 35 of the Tenancy Act before the appropriate authority. In view of above and in the absence of such application and the declaration by the Tahsildar that they are the protected tenants, it has to be held that they have no right whatsoever for claiming rights under protected tenancy.
67. The above view of mine is fortified by the judgment of the Full Bench of this Court in the case of SADA in which it was held as follows:
"Decision on the question of 'protected' tenancy under Section 34 is to be given under Section 35 by the Tahsildar, if any question arises in that behalf. The landholder or any person deemed to be a tenant, may apply within one year of the commencement of the Act, to the Tahsildar, who may then give the necessary declaration as to whether a person is a protected tenant or not. Sub-section (2) of Section 35 states that any declaration as to protected tenancy given by the Tahsildar (subject to appeal to the Collector or Board of Revenue) 'shall be conclusive that such person is a protected tenant and his rights as such shall be recorded in the Record of Rights or where there is no Record of Rights, in such village record as maybe prescribed."
68. In view of the above observations it has to be held that the pleadings of the unofficial respondents 4 to 6 go against them. In view of the provision contained under Section 37-A of the Tenancy Act, a person who hold the land as a tenant and in the absence of the verification of the records by the authorities are concerned, whether the unofficial respondents are the tenants more so the protected tenants, it has to be held that even the entries under Section 37-A of the Tenancy Act are without verification of records and contrary to the entries in the record for the reason that Edulakanti Veeraiah, who is husband of the fourth respondent, has surrendered his rights and there is no subsequent declaration that he is the protected tenant. The authorities themselves have come to the conclusion that Mr. B. Ramchander has no case. The names of respondents 5 and 6 did not figure as tenants in any of the records.
69. "Persons deemed to be tenants" has been defined under Section 5 of the Tenancy Act, which reads as follows:
"3. Persons deemed to be tenants:--A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the landholder and if such person is not-
(a) a member of the landholder's family, or
(b) a servant on wages payable in cash or kind, but not in crop share or a hired labourer cultivating the land under the personal supervision of the landholder or any member of the landholder's family, or
(c) a mortgagee in possession:
Provided that if upon an application made by the landholder within one year from the commencement of this Act to the Tahsildar within whose jurisdiction the land is situate-
(a) the Tahsildar declares that such person is not a tenant and his decision is not reversed on appeal or revision, or
(b) the Tahsildar refuses to make such declaration but his decision is reversed on appeal or revision, such person, shall not be a tenant.
xxxxx"
70. The Final Record of tenancies has to be prepared under Rule 24 of the Tenancy Rules, 1950 in Form No.V based on the provisional Record of Tenancies relating thereto and such an abstract of tenancy shall with effect from 10-6-1951 be deemed to be the final record of tenancies subject to the final orders on applications, if any, filed under Sections 5, 35 and 37 of the Tenancy Act relating to any land therein. The Record of Agricultural Tenancies shall be made in Form I and Form II of the Tenancy Rules, 1950.
71. Rule 25 of the Tenancy Rules, which has been added by the Notification No. 48 dated 23-5-1951, also shows that the certificate can be issued by the Tahsildar to every tenant registered in the final record of tenancies as a protected tenant and to every person under whom such person holds any land as a protected tenant, a certificate in Form No. VI on payment of fee prescribed therein.
72. The Record shows that no effort has been made by the unofficial respondents to get themselves declared as protected tenants as per the above Rules if they were the tenants in the year 1951. In the absence of any entries in the records ofthe Tenancy Register under Section 5 and in the absence of entries in the final register, the unofficial respondents 4 to 6 are not entitled to claim themselves as protected tenants. It is also to be noted that to determine the tenancy, the authorities have to look into the tenancy Register and Khasra Pahanies.
73. The Full Bench of this Court in the case of SADA with regard to inclusion of their names in Tenancy Register and Khasra Pahanies held as follows:
"It is clear from Section 38-E that it is for these 'protected tenants' who are finally declared to be 'protected tenants' and included in the Register prepared for that purpose and for whom protected tenancy certificates have been issued, that ownership rights are envisaged in Section 38-E(1), subject of course, to the limitation with regard to extent of holdings as specified in Section 38(7) and to the proviso to Section 38-E(1). Once persons who held land on the dates or for the periods mentioned in Sections 35, 37 and 37-A and the requirement of physical possession on the dates required in those Sections is satisfied, such persons have become 'protected tenants'. Once a person becomes a protected tenant, he earns a qualification to become an owner by force of statute, subject of course to the qualification regarding extent in Section 38(7) and to the proviso to Section 38-E(1). There is no requirement in the Act that he should also be in possession on the date specified in the notification issued in Section 38-E(1). The words 'all lands held by protected tenants' is more a description of the lands with regard to which the right as 'protected 'tenant' has been declared and mere are no words requiring physical possession on the date specified in the notification."
74. As seen from the record, there is no application from Begari Pentaiah s/o. Kistaiah for inclusion of his name either in the Tenancy Register or Khasra Pahanies. It is not known how his name has crept in Section 38-E certificate issued by the third respondent. It is also not known how the authorities have issued the certificate to him when his name did not find place in Khasra Pahanies or pahanies or Tenancy Register.
75. The learned Counsel for the sixth respondent has contended that this Court cannot go beyond the pleadings in the revision petition. In this context, it has to be observed that Section 91 ofthe Tenancy Act provides revision. The said provision is extracted for ready reference:
"91. Revisions :--Notwithstanding anything contained in this Act or any other law for the time being in force, an application for revision shall lie to the High Court from any final order passed on appeal by the Collector or Board of Revenue on the following grounds:--
(a) that the original or appellate authority exercised a jurisdiction not vested in it by law; or
(b) that the original or appellate authority failed to exercise a jurisdiction so vested; or
(c) in following the procedure or passing the order, the original or appellate authority acted illegally or with material irregularity."
From the above provision, it is clear that a revision lies to this Court from any final order passed on appeal by the Collector or Board of Revenue if the original or appellate authority exercised a jurisdiction not vested in it by law and if they failed to exercise jurisdiction so vested or if they acted illegally or with material irregularity in following the procedure or passing the order.
Section 89 of the Tenancy Act deals with the procedure and powers at inquiries. As per Sub-section (1) of Section 89 of the Tenancy Act, the provisions of Sections 149 and 150 of the AP (Telangana Area) Land Revenue Act, 13I7-F shall apply to the recording of evidence and of decisions at inquiries held under this Act. As per Subsection (2) of Section 89, the Tahsildar, Tribunal and Collector may exercise all or any of the powers conferred on the Civil Court including the power to award costs.
At this juncture, it is pertinent to note that a perusal of the record and the material annexed to this Civil Revision Petition, both by the petitioners as well as the respondents, did not show that the Tahsildar, or Tribunal or the Collector conducted enquiry by taking oral evidence of the petitioners and the respondents nor considered any of the records or documentary evidence. Thus, the official respondents failed to exercise the powers conferred on them to come to the conclusion that the respondents 4 to 6 are the tenants of the Pattedar and thus they became the protected tenants.
This Court in the case of A. Janardhan Reddy v. Man Singh, 1988 (1) ALT 860, has deprecated the procedure of not considering the documents and oral evidence while disposing of the cases by the authorities under the Act.
In this case also, the pleadings did not show that the enquiry has been conducted by the authorities by taking into consideration oral and documentary evidence and there are no pleadings as such to support the plea of the unofficial respondents 4 to 6. The record also does not show that an enquiry has been conducted as required under Section 3 of the Tenancy Act (Family Holdings), and also conducted enquiry with regard to the persons deemed to be the tenants as required under Section 5 of the Tenancy Act. The authorities also did not conduct enquiry as to whether the respondents 4 to 6 are the protected tenants as required under Sections 34 and 35 of the Tenancy Act.
It is pertinent to note that no application has been filed by respondents 4 to 6 under Section 36 of the Tenancy Act for recovery of possession by them as Protected Tenants.
In the absence of any enquiry with regard to the documentary and oral evidence and in the absence of any plea that the unofficial respondents 4 to 6 have adduced oral and documentary evidence, it has to be held that authorities have acted illegally and with material irregularity.
76. The observations made by the second respondent in his earlier proceedings dated 22-9-1981 that the judgment in O.S.No.5 of 1963 does not bind the protected tenants in view of the fact that they were not made as parties to the said suit have to be examined with reference to the case law laid down by this Court in the case of Itikala Venkataramayya v. Kommu Guruviah, 1961 (1) An.WR 120. This Court in the case of Itikala Venkataramayya (supra), has held that under Section 99 of the Hyderabad Tenancy and Agricultural Lands Act, the Civil Court's jurisdiction is excluded in respect of any question which is under the Act required to be settled by the Tahsildar, Collector or the Board of Revenue. The scheme of the Act is to regulate the relationship between landholders and tenants and it does not affect the rights inter se between persons setting up right to ownership to a particular land or a dispute between a owner and trespasser or a person other than a tenant. Another Division Bench of this Court in the case of P. Ramaiah v. P. Nagabhushanam, (DB), has dealt with the effect of making application under Section 99 of the Tenancy Act. In the said case, there was a litigation between parties with regard to transfer of title and right over the property in question and a civil suit was filed in O.S. No.190 of 1982. In that civil suit, the appellants in the case of P. Ramaiah, (supra), were not parties. But, the Division of this Court dealing with regard to the binding nature of the judgment in O.S. No.190 of 1982 held as follows:
"It may be true that in the aforementioned suit O.S. No.190 of 1982, the appellants herein were not parties, but there cannot be any doubt whatsoever having regard to the judgment rendered therein, in which a question had arisen as to whether appellant No.l had transferred his right, title and interest in favour of the defendants in the said suit, who in turn transferred their right, title and interest in favour of the plaintiff in the said suit, and a finding of fact thereof was arrived at by the competent Civil Court holding that a transfer did take place wherein appellant No. 1 transferred his right, title and interest in favour of the defendants in the said suit, who in turn transferred their right, title and interest in favour of the plaintiff.
As indicated above, the judgment and decree passed in the aforementioned suit attained finality. It is placed on record that after the judgment and decree was passed in the said suit, the plaintiff therein has transferred her right, title and interest in favour of the writ petitioners-respondents 1 and 2 herein, and therefore, in the facts and circumstances of the case, it cannot be said that the respondent Nos.3 and 4 -appellants herein were forcibly dispossessed, and as a result whereof, provisions of Section 32 of the Act could be attracted. A finding of fact has also been arrived at by the concerned revenue authorities holding that appellant No. 1 did abandon his land as far back as in the year 1958. Although the judgment and decree passed by the Civil Court in the aforementioned suit cannot be strictly binding on the parties herein, but the same has evidentiary value, and having regard to the findings of fact arrived at therein, the burden to prove contra lies upon appellant No.l, which he failed to do so.
Merely because at a later stage a Certificate in terms of Sub-section (1) of Section 38-E of the Act was issued in appellant No.l's favour, that by itself will not change the situation and put the clock back, depriving the writ petitioners-respondent Nos.l and 2 herein of their lawful title and possession of the land. Once it is held that appellant No.l has transferred his right to defendants in the suit, Section 43 of the Transfer of Property Act, 1882 comes into play xxx"
77. In the case on hand, on purchase of land by the father of the petitioners, the original pattedar has put the father of the petitioners into possession of the land and since then, the father of the petitioners and later the petitioners have been in possession of the land without any interference. As the original pattedar did not file no objection petition before the concerned Tahsildar for mutation of the name of the late father of the petitioners in the revenue records, a suit in O.S.No.5 of 1963 has been filed. The factum of possession by the petitioners herein is not denied by the respondents 4 to 6 in any of their pleadings.
78. This Court in the case of Prabhulingam v. Y. Ramaiah, , has held that under Section 99 of the Act, the jurisdiction of the Civil Court is barred under the Act only to decide the dispute between the protected tenant and the original landholder and not a dispute of civil nature between landlord/protected tenant and a third party claiming title to certain land by adverse possession. The said judgment has been delivered following the judgment in Venkataramayya (supra) and Hammanth Reddy v. K. Nagamma, 1983 (1) ALT 199. The objections taken in the counter by respondents 4 to 6 is that the sale is against the provisions of Sections 47 and 48 of the Tenancy Act. In this case, O.S. No.5 of 1963 is between the landlord and the petitioners which is purely of civil in nature. The said judgment has reached its finality. In view of the entries made in the final Tenancy Register of 1951 that E. Veeraiah and B. Ramchander have surrendered their rights and in the absence of any record that the other unofficial respondents are tenants, they have no right whatsoever to question the sale of the lands in question by the landlord and also the rights accrued to the petitioners under judgment in O.S.No.5 of 1963. It is to be seen that Sections 47 and 48 of the Tenancy Act were omitted by Act 12 of 1969.
79. The Supreme Court in the case of Ponnala Narsing Rao v. Nallolla Pantaiah, , with regard to the effect of filing of application under Section 32 of the Tenancy Act at a belated stage held as follows:
"So far as the second contention is concerned, it is true that though no express period of limitation is provided for filing application under Section 32 of the Act, such applications have to be moved within reasonable time. It may be because of such belated applications, the other side may stand adversely affected. It may have changed its position in the meantime. Equities may have arisen in his favour, he may have spent large amounts on the land by improving it.
But all these questions have to be placed and proved. Surprisingly, no such contention was ever canvassed much less tried to be roved on the equitable ground by the petitioner. Therefore, this second contention on the facts of the present case cannot be sustained. It has also to be noted that no plea of adverse possession was put forward by the petitioner in support of his case."
80. In this case also, it is not the case of the unofficial respondents 4 to 6 that they have filed applications under Section 32 or under any provision of the Tenancy Act for restoration of possession at any time. The only averment made in Writ Petition No. 5381 of 2000 is about their making of an application under Section 32 of the Tenancy Act nearly after a period of 40 years. No averments have been made by the unofficial respondents 4 to 6 that they have made applications after issuance of certificate under Section 37-A of the Tenancy Act in 1958. If really they are serious of the matter, they should have made an application immediately after issuance of Tenancy Certificate under Section 37-A of the Tenancy Act in 1958. As seen from the material on record, even though the petitioners are in possession of the land in question, there was no litigation pending whatsoever between the parties from 1958 to 1975 i.e., nearly 17 years from the date of issuance of Tenancy Certificate till the date of issuance of ownership certificate under Section 38-E of the Tenancy Act, As seen from the averments in the affidavit in Writ Petition No. 5381 of 2000, they came forward with the applications' under Section 32 of the Tenancy Act nearly after a period of 40 years from the date of issuance of Tenancy Certificate under Section 37-A of the Tenancy Act. The Supreme Court in the case of Ponnala Narsing Rao (supra) has held that because of belated applications, the other side may stand adversely affected.
81. In this case also, because of such belated applications of unofficial respondents 4 to 6, the possession of the land in question has been changed in view of the fact that the petitioners have sold the land to the 7th respondent.
82. Thus, in view of the observations of the Supreme Court in the case of Ponnala Narsing Rao (supra), it has to be held that the filing of applications after a period of 40 years by respondents 4 to 6 for delivery of possession is of no value and at this stage it is difficult to put the clock back by delivering the possession to the unofficial respondents 4 to 6. This fact also was not taken into consideration by the respondents 1 and 2 while dismissing the appeal and of the petition of the petitioners.
83. Apart from the above, even the record does not contain the applications of respondents 4 to 6 to treat them as protected tenants under Section 37-A of the Tenancy Act. In the absence of such application, it is not known how the respondents have issued Tenancy Certificates by incorporating the names of the husband of the fourth respondent and respondents 5 and 6 under Section 37-A of the Tenancy Act.
84. The learned Counsel for the unofficial respondents 4 to 6 on the other hand submits that questioning the action of respondent No. 1 herein in entertaining the applications of respondents 4 and 6 herein for restoration of possession of the agricultural lands basing on the tenancy certificates issued when the matters are pending for adjudication before the second respondent, the petitioners herein filed W.P.No. 5381 of 2000 and this Court has dismissed the same on 28-4-2000 on the ground that when the certificates issued under Section 38-E of the Tenancy Act have become final, the certificate holders are entitled to file applications under Section 32 of the Tenancy Act.
85. With regard to this observation, it has to be noted that by the orders of the first respondent dated 22-9-1981, the matter has been remanded to the second respondent and the second respondent has reopened the matter and issued notices to all the concerned. Pursuant to the notices, respondent No.4 also filed application for re-opening of the case. The Full Bench of this Court in the case of SADA (supra -) has observed that objections to the very grant of the certificate must be raised before it is granted or in appeal or revision and cannot be permitted to be raised at the stage of delivery proceedings under the new proviso to Section 38-E(2) of the Tenancy Act. In this case, the stage has not come to the delivery of possession "and hence the petitioners are entitled to file objections and hence the observations made by the learned Single Judge in W.P. No.5381 of 2000 dated 28-4-2000 while disposing of the said Writ Petition at the admission stage is not binding in view of the observations of the Full Bench of this Court in SADA' case (supra-) that all objections to the very grant of the certificate must be raised before it is granted or in appeals or revision and cannot be permitted to be raised at the stage of delivery of proceedings. As observed above, in this case, the stage of delivery of proceedings did not reach and hence the observations of the learned single Judge are not binding in view of the observations of the Full Bench judgment.
86. Further, as per Section 89 of the Tenancy Act, which deals with Procedure and powers at inquiries, the provisions of Sections 149 and 150 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli shall apply to the recording of evidence and of decisions at inquiries held under this Act. As per Sub-section (2) of Section 89 of the Tenancy Act, for the purpose of any such inquiry the Tahsildar, Tribunal and Collector may exercise all or any of the powers conferred on Civil Court including the powers to award costs.
87. In this case, it has to be noted that neither of the authorities have conducted enquiry nor looked into the documents and entries made in the Tenancy Register. In this connection, the decision of this Court in the case of A. Janardhan Reddy (supra) is relevant to be noticed. It was held that the Tribunals of original jurisdiction or of appeals are Courts of facts as well as law and it is their bounden duty to go into the allegations in the petition and the counter, frame appropriate points for consideration and then consider the documentary and oral evidence and give detailed reasons in relation to each point. Therefore, it is to be held that if the authorities are really interested in doing justice, they ought to have called the Pahani Patraks from 1950 onwards and found whether the plea of surrender before 1954 set up by the landholder is established or not. It is also observed that disposing of cases by the Authorities under the Act without going into the allegations in petition and without considering documentary and oral evidence is deprecated.
88. In this case, as per Pahani Patraks of 1955-58, the actual cultivators of land is Began Balaiah and Abdul Afeez Khan. They are not parties to the proceedings. It is also stated in the said Pahanies that B. Ramchander and Veeraiah have surrendered their lands for cultivation of the original pattedar. This fact is also evidenced from Khasra Pahanies of 1954-55.
89. When this Court directed the learned Government Pleader to produce the records, he produced records and also furnished a true extract of final Tenancy Register. The said copy of true extract has been made as a part of the record. As per the true extract of the Tenancy Register also, the cultivating tenants of land in Survey Nos.49 to 54, 61 and 74 of Nanakramguda, Hyderabad has been shown as Edulakanta Veeraiah and B, Ramchander. Subsequently, the entries in Khasra Pahanies show that they have surrendered their rights. It is to be noticed that as per the order of the second respondent dated 10-5-2000, the said B. Ramchander was set ex pane and it has to be construed that he has not made out his case that he is a protected tenant. So far as Edulakanti Veeraiah is concerned, the register shows that he has already surrendered his lands. Thus, the General Power of Attorney Holders have not approached this Court with clean hands. In the counter filed by one of the General Power of Attorney Holders of fourth respondent, namely, Sri Sanjeeva Reddy, he has mentioned his father's name as Edulakanti Veeraiah, though he is the son of Rami Reddy.
On noticing the same, the petitioners have filed a petition in C.M.P. No.22541 of 2001 before this Court seeking initiation of criminal proceedings against GPA Holder of the fourth respondent, Mr. Sanjeeva Reddy for committing perjury and impersonation on the ground that he has shown his father's name as Rami Reddy before the first respondent and before this Court he has shown his father's name as Edulakanti Veeraiah.
The arguments advanced by the learned Counsel for the fourth respondent on this point is that Edulakanti Veeraiah died issueless and hence he has adopted the name of the said Edulakanti Veeraiah. However, it has to be observed that no material is placed before this Court to substantiate the relationship that he is the son of the Edulakanti Veeraiah. In the absence of such pleadings that they have any blood relationship, it has to be construed that the said Sanjeeva Reddy has approached this Court with unclean hands. This shows that the GPA holder of fourth respondent has approached this Court with unclean hands. The learned Counsel for the fourth respondent submits that since the Edulakanti Veeraiah has no issue, and Sri Sanjeeva Reddy, GPA Holder is taking care of all the needs of fourth respondent, the fourth respondent was treating him as her adopted son, and therefore he mentioned the name of Edulakanti Veeraiah as his father.
90. In the absence of any legal heir certificate or succession certificate, it has to be held that the General Power of Attorney Holder of fourth respondent, Sri Sanjeeva Reddy assumes himself as the son of Edulakanti Veeraiah only for the purpose of this litigation and there is no satisfactory reason for adopting the name of Edulakanti Veeraiah as his father. In the absence of any legal proof, the claim of the Sanjeeva Reddy that he is the son of Edulakanti Veeraiah has no force. Even though this Court has felt that action could be initiated for perjury, taking a lenient view this Court felt that there is no need to contemplate such action.
91. From the material available on record, it shows that the unofficial respondents 4 to 6 have not agitated their rights for possession and also they did not make any application under Section 36 of the Tenancy Act, if really they are the protected tenants under any of the provisions of the Tenancy Act till 1975. It is also not disputed by the unofficial respondents that the petitioners are in possession of the land in question. It is also clear from the above discussion that even after being declared as protected tenants under Section 37-A of the Tenancy Act, the unofficial respondents 4 to 6 have not agitated their rights for possession of the lands from 1975. i.e., nearly for a period of 25 years. The certificates issued in favour of the respondents 4 to 6 are held to be without any proper appreciation of the material available on record and also contrary to the records. Thus, it has to be held that the original as well as the appellate authority have acted illegally and without following the procedure in passing the orders.
92. For the foregoing reasons, the orders of the Additional Revenue Divisional Officer, Land Reforms Tribunal, Hyderabad West in No.LRW/170/75 dated 31-5-1975; of the first respondent in No.B4/13014/75 dated 22-9-1981, of the second respondent in Proc. No.G/7894/82 dated 10-5-2000 and of the first respondent in Case No.F2/ 2013/2000 dated 3-3-2001 have been set aside.
93. In the result, the Civil Revision Petition is allowed. However, no costs.
94. In view of the orders passed in the CRP, the Contempt Case is closed.