Andhra HC (Pre-Telangana)
S. Veera Reddy And Anr. vs Chetlapalli Chandraiah And Ors. on 13 September, 1994
Equivalent citations: 1995(2)ALT172
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
ORDER Syed Shah Mohammed Quadri, J.
1. The appellants in L.P.A. No. 61 of 1986 are respondents 3 and 4 in C.R.P. No. 665 of 1994 and the petitioners in the said C.R.P. are respondents 1,2 and 4 in the L.P.A.
2. The subject matter of dispute in these two cases is the same. The controversy is about an extent of 9 acres of land in Survey No. 91 of Bowenpally village of Secunderabad. The said land was an inam land, which was abolished under the Andhra Pradesh (Telangana Area) Abolition of Inams Act (Act No. VIII of 1955), for short, "the Inams abolition Act". One Atchi Reddy was declared as a protected tenant of the said land under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act (Act No. XXI of 1950), for short, "the Tenancy Act". Claiming to be transferees of the interest of the said protected tenant, Atchi Reddy, under a document said to have been executed by him on February 8,1963 (Ex.A.I) in favour of the appellants, they asserted to be in possession of the land. Respondents 1 to 3 and 7 to 11, are heirs of one Sattaiah who set up a rival claim that he was in possession of the said land after the said protected tenant surrendered his tenancy rights, under the Tenancy Act, in favour of the erstwhile inamdar Gulam Moinuddin on November 18, 1966 (Ex.B.16) and that the said Gulam Moinuddin had entered into an agreement for sale of the said land in his favour on November 20, 1966 and thereafter released the land in his favour on April28,1969. A dispute a rose with regard to the possession of the said land. The Executive Magistrate passed preliminary order on October 21,1967. The land was then attached and taken possession of by the Executive Magistrate in M.C.No.23 of 1968 in proceedings initiated under Section 145 of the Code of Criminal Procedure. On May 23,1968 the above said M.C. was disposed of holding that the appellants herein were in possession of the land on the relevant date. The matter was carried in revision to the High Court in R.C. No. 310 of 1969. The High Court by its order dated April 24,1970allowed the said Revision Case and held that the said Sattaiah was in possession of the land in question. Questioning the said order of the High Court and claiming declaration of the title and perpetual injunction against the said respondents restraining them from interfering with the possession of the appellants who will hereinafter be referred to as "plaintiffs" filed O.S. 32 of 1970 on the file of the Munsif-Magistrate, Hyderabad West,. The said respondents, hereinafter referred to as "the defendants", contested the suit, inter alia, contending that Gulam Moinuddin and his brother executed an agreement in favour of the 1st defendant conveying the said land and pursuant thereto possession of the land was handed over to them. The possession of the land was earlier held by the protected tenant, who made an application to the Tahsildar offering to surrender his right. The surrender was accepted. Thereafter, the defendants came into possession of the land. It is further stated that the said protected tenant filed O.S. 53 of 1966 against the plaintiffs but the suit was dismissed for default. They denied that the protected tenant suffered collusive decrees in O.S. No. 21 of 1966 and O.S. No. 24 of 1967 on the file of that court. They also denied execution of the lease deed in favour of the plaintiff and laid a counter claim that they had got title from Gulam Moinuddin and his brother, erstwhile inamdars, and that they came into possession of the land in E.P.7 of 1967 on April 25,1967, in execution of the decree passed in O.S.No. 65 of 1964. They denied that the plaintiffs were in possession of the land from February 8, 1963 and claimed to be in possession till their possession was disturbed by the revenue authorities pursuant to the preliminary order of the Magistrate in October, 1967. It is stated that the plaintiffs' possession was by virtue of the order of the Magistrate in October, 1967. It was further stated that the court had no jurisdiction to entertain the suit in view of the provisions of the Inams Abolition Act.
3. The 6th defendant, through whom the said defendants claimed title, in his written statement, contended that he was the inamdar of the said land and that inspite of his objection to the alleged surrender of the rights, the proceedings were completed and the surrender was accepted. After the surrender of the right of the protected tenancy by the said Atchi Reddy, the plaintiffs had become his protected tenants and their possession has to be protected.
4. On those pleadings, the trial court framed various issues, but, however, disposed of the suit on the preliminary issue, viz., "Whether a civil court has jurisdiction to grant to the plaintiff the reliefs of (i) declaration of title (whether arising out of ownership or possession) in respect of the suit land (ii) confirmation of possession in respect of the suit land and (iii) a perpetual injunction restraining the defendants from interfering with the possession of the plaintiffs in respect of suit land?"
The trial court held the above issue against the plaintiffs and dismissed the suit on December 31,1979. Aggrieved by the said judgment and decree of the trial court, the plaintiffs filed C.C.C.A. No. 62 of 1980. During the pendency of the appeal, the learned single Judge of this court, who dealt with the appeal called for findings from the Additional Chief judge,City Civil Court at Secunderabad, in the said suit on all the issues framed in that suit, viz.,
1. Whether Mustaffa Shariff, the 6th defendant is the owner of the suit land?
2. Whether the plaintiffs obtained possession of the suit land on 8-2-1963?
3. Whether the agreement of sale executed by Gulam Mohiuddin and his brothers is true and valid ?
4. Whether Vanam Achi Reddy has validly surrendered his rights to the Tahsildar?
5. Whether the defendants were in possession of the suit property as alleged by them in para 6 of the written statement ?
6. Whether the plaintiffs have title to the suit land, known as Waddevani Bavi, measuring 9 acres ?
7. Whether the valuation of the suit land the court fee paid are correct?
8. Whether the plaintiffs are entitled to the injunction ?
9. Whether the 4th defendant is a necessary party ?
10. To what relief ?
5. The learned Additional Chief Judge recorded the findings against the plaintiffs in all those issues. Accepting the findings of the learned Additional Chief Judge, the learned single Judge of this court, dismissed the appeal (C.C.C.A.62 of 1980) on April 25, 1986. Challenging the correctness of the judgment and decree of the learned single Judge, this L.P.A is preferred.
6. We have already referred to the fact that the land in question was an inam land and that the inam was abolished under the Inams Abolition Act. Under the provisions of that Act, both the plaintiffs as well as the defendants applied for the occupancy rights. The proceedings went through several vicissitudes. Ultimately, on March 9,1993 the Joint Collector, Ranga Reddy District, in file No.B3/5237/91, confirmed the order of the Revenue Divisional Officer dated June 22,1991 granting occupancy rights in favour of the plaintiffs. Challenging the correctness of the said order, C.R.P. No. 665 of 1994 is filed.
7. Sri Y. Sivarama Sastry, learned counsel appearing for the plaintiffs- appellants in the appeal contended that the judgment of the learned single Judge of the High Court in so far as it relates to the direction to implement the order in Crl.R.C. No. 310 of 1969, is wholly without jurisdiction and illegal. He further contended that as the Special Tribunal constituted under the Inams Abolition Act, had accepted the claim of the plaintiffs, so the order in the Criminal Revision Case automatically came to an end. He has also canvassed the correctness of the finding of the learned single Judge in regard to Ex. A.1 and the possession of the plaintiffs.
8. Sri K. Subrahmanaya Reddy, learned counsel for the respondents in the appeal, argued that though the civil court has jurisdiction to grant the reliefs of the nature claimed in the suit, the plaintiffs are not entitled to any relief as the alleged lease in their favour had not been proved. The document, under which the title is said to have passed on to the plaintiff (Ex.A-1), is inadmissible in evidence as it is not properly stamped and is unregistered and in any event transfer of the interest by the tenant is violative of Section 30 of the Tenancy Act. On those submissions, he prays that the L.P.A. be dismissed..
9. The short question that arises for consideration in the L.P.A. is whether the Judgment under appeal suffers from any illegality and, therefore, cannot be sustained.
10. In so far as the question of jurisdiction of the civil court to grant the relief in the suit is concerned, both the learned counsel for the appellants as well as for the respondents do not dispute the jurisdiction of the civil court to grant the relief of the nature prayed in the suit. The controversy, which therefore, remains to be considered is with regard to the genuineness and validity of Ex.A-1 and the legality of the transaction said to have been entered into under tine said agreement Ex. A-l.
11. Ex.A-1 purports to be a lease deed in respect of the land in question, viz., an extent of Ac.9-00 in Survey No. 91, situate at Old Bowenpalli. It is for a period of 100 years, as can be seen under (5) of the said agreement, Ex.A-1. The question of admissibility of this document was raised in the suit. The trial court held the document inadmissible by its order dated September 18,1972. The plaintiffs carried the matter in revision in C.R.P. No. 793 of 1973. On July 18,1974 a learned single Judge of this court construed the said document as lease in favour of the plaintiffs for a period of 100 years and held that it requires registration and as it was not registered, the trial court rightly held the document in admissible. The learned Judge categorically found thus:
"......Certainly, to prove any right under the lease-deed, it is not admissible in evidence and the petitioners cannot place reliance on it. It is only for a collateral purpose as provided in proviso to Section 49 of the Indian Registration Act it can be relied upon. One of the collateral purposes for which the document can be relied upon is to show that the petitioners were in possession of the land and on account of that very possession, they acquired title to the land. The possession as lessees also cannot be established on the basis of the lease-deed itself to claim rights under it.
The above said order of the learned single Judge has become final.
12. If Ex.A-1 is excluded from consideration, there is no other valid evidence which can establish the title of the plaintiffs to the land in question. It may also be pointed out that the protected tenant himself denied having conveyed any title to the plaintiffs.
13. It would be relevant to note here that Section 30 of the Tenancy Act prohibits assignment of any interest by any tenant of the land. Sub-section (1) of Section 30, which is relevant for our purpose reads as follows:
"No sub-division or sub-letting of any land by a tenant and no assignment of any interest held by a tenant shall be valid."
Thus, it is clear that the interest of the protected tenant cannot be validly conveyed in law in view of Section 30 of the Tenancy Act.
14. It may be appropriate to point out that the trial court, in the findings submitted on November 13,1985, found that clause (4) in Ex.A-1 amounts to assignment of the interest of the tenant which is clearly prohibited by Section 19(2) (d) and Section 30 of the Tenancy Act and for those reasons Ex.A-1 was held to be illegal and void transaction.
15. In so far as the possession of the plaintiffs on the suit land is concerned, the trial Court found that the possession of the plaintiffs dates-back to November, 1967 when they were put in possession by the Deputy Tahsildar in pursuance of the final order passed in Section 145 Cr.P.C, proceedings. It is also pointed out that in view of the order of the High Court in Criminal Revision Case No. 310of 1969 (Ex.B-39) the defendants were found to be in possession of the land in question within two months of the preliminary order. This finding is confirmed by the learned single judge of this Court. The learned single Judge held that there is absolutely no evidence to show that the plaintiffs were in possession of the suit land at any prior point of time before they obtained delivery pursuant to the order under Section 145 Cr. P.C., proceedings.
16. In the absence of any evidence which clinchingly establishes the possession of the plaintiffs over the suit land and we must add that no such evidence is brought to our notice by the learned counsel for the appellants, we have no other option but to confirm the finding recorded by the trial Court and accepted by the learned single Judge. As the plaintiffs failed to establish both title to the land in question as well as possession thereof, the claim for injunction, in our view was rightly rejected. In this view of the matter, we do not find any merit in the L.P.A.
17. Now turning to the impugned order in the Civil Revision Petition, we may point out that the Inams Abolition Act was published in the Official Gazette on July 20, 1955. Sub-section (3) of Section 1 of the said Act reads as follows:-
1. Short title, extent and commencement:-
(1) xx xx xx (2) xx xx xx (3) (a) This section, Section 2, Section 3 except clauses (d), (g), (h) and (i) of sub-section (2), Sections 30 to 34 (both inclusive), Section 35 to the extent to which it enables rules to be made for the purposes of the aforesaid Sections, Section 36 and Section 37, shall come into force on the date of publication of this Act in the official Gazette;
(b) the rest of this Act shall come into force on such date as the Government may, by notification in the official Gazette, appoint in this behalf."
18. From a perusal of the provision extracted above, it is clear that Section 1, Section 2, Section 3(1), Clauses (a),(b),(c),(e) and (f) of sub-section (2) of Section 3 and also Sections 30 to 37 of the said Act came into force on July 20,1955; the other provisions of the Act came into force on the date appointed by the Government in this behalf in the Official Gazette. Such a notification was issued by the Government in the Official Gazette on November 1,1973. Accordingly the other provisions which include Sections 4 to 8, 10 came into fore, on November 1, 1973. Sections 4 to 8 entitle an inamdar, Kabize-e-kadim, permanent tenant, protected tenant and non-protected tenant to be registered as occupants. For this purpose, Section 10 enables the Collector to examine the nature and history of the lands in respect of which an inamdar, Kabir-e-kadim, permanent tenant protected tenant or non-protected tenant claims to be registered as occupant under Sections 4 to 8 and to decide in whose favour and in respect of which inam land the claims should be allowed and the land revenue and the premium payable in respect of such lands.
19. The contesting defendants approached the Revenue Divisional Officer for grant of occupancy rights, under the Inams Abolition Act, of the land in question. These proceedings had a chequered career but in the view we have taken, we do not consider it necessary to refer to the different orders passed in the proceedings before passing the final order by the Joint Collector on March 9,1993, which is the subject-matter of this revision. It would be relevant to note here that the contesting defendants have also applied to be registered as occupants under Section 4. As the defendants claim to be the alieness from the erstwhile inamdars, after the protected tenant had surrendered his rights in favour of the inamdar before the Tahsildar under the provisions of the Tenancy Act, contends the learned counsel, after the abolition of inams there remains nothing which an inamdar could convey in favour of the third parties; reliance is placed on clause (b) of sub-section (2) of Section 3 of the Inams Abolition Act.
20. Sub-section (1) of Section 3 provides that all the inams shall be deemed to have been abolished and shall vest in the State notwithstanding anything to the contrary contained in any usage, settlement, contract, grant, sanad, order or instrument, Act, regulation, rules or order having the force of law and notwithstanding any judgment, decree or order of a Civil, Revenue or Atiyat Court and with effect from the date of vesting.
21. Sub-section (2) enumerates the consequences of abolition of inams. Clause (b) specifies one such consequence and it would be relevant to read here clause (b) which is as follows:
"3. Abolition and vesting of inams and the consequences thereof:-
(1) xx xx xx (2) Save as expressly provided by or under the provisions of this Act and with effect from the date of vesting, the following consequences shall ensue namely:-
(a) xx xx xx
(b) all rights, title and interest vesting in the inamdar, kabiz-e-kadim, permanent tenant, protected tenant and non-protected tenant in respect of the inam land, other than the interests expressly saved by or under provisions of this Act and including those in all communal lands, cultivated and uncultivated lands (whether assessed or not), waste lands, pasture lands, forests mines and minerals, quarries, rivers, and streams, tanks and irrigation works, fisheries and ferries, shall cease and be vested absolutely in the State free from all encumbrances;-"
A plain reading of clause (b) of sub-section (2) of Section 3, extracted above, shows that all rights, title and interest vesting in the inamdar, kabiz-e-kadim, permanent tenant, protected tenant and non-protected tenant in respect of the inam land and in all communal lands, cultivated and uncultivated lands (whether assessed or not), waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries, and ferries, shall cease and be vested absolutely in the State free from all encumbrances and that this consequence will not apply to the interests expressly saved by or under provisions of the Inams Abolition Act.
22. Reliance is also placed on the judgment of the learned single Judge of this Court in Seethal Singh v. Mahmood Shariff, 1984 (2) ALT 199 in support of the above noted contention. In that case the question was whether a suit filed for partition of inam land was maintainable in the civil court. Referring to the various provisions including clause (b) of sub-section (2) of Section 3 of the Inams Abolition Act, the learned single Judge held that the rights of inamdar stood abolished from the date of vesting of the inams in the Government and that the Inamdar had only a right to be registered as occupant under the provisions of the Act; while the proceedings for registration as occupant was still pending, the inamdar had no right, interest or title in the inam land, so the partition suit was not maintainable. We shall revert to this judgment presently.
23. It would be relevant to note here that the consequences of abolition of Inams contained in clause (b) like other consequences, is subject to the express savings by or under the provisions of the Act. Sub-section (1)of Section 11 of the Inams Abolition Act provides one such exception. This section enacts that where before the date of vesting, an inamdar has created, either by way of lease or otherwise, any right in any inam land which vests in the State other than the lands specified in clauses (a) and (c) of sub-section (1) of Section 4, including rights in any forest, mines or minerals, quarries, fisheries, or ferries, the transaction shall be deemed to be valid and all rights and obligations arising thereunder, on or after the date of vesting, shall be enforceable by or against the Government, provided that the transaction was not void or illegal under any law in force. The second proviso to sub-section (1) of Section 11 empowers the Government to terminate the right, by giving notice to the person concerned, with effect from such date as specified in the said notice, where such right was created in any lands, other than the lands specified in clauses (a) to (c) of subsection (1) of Section 4. Sub-section (2) of Section 11 provides for payment of compensation by the Government to the person whose right has been terminated by the Government. It would also be pertinent to note here clause (i) of sub-section (2) of Section 3 of the Act which reads thus:-
"3.(2) (i) the inamdar, kabize-e-kadim, permanent tenant, protected tenant and a non-protected tenant of inam lands and any person holding under them and a holder of an inam, shall as against the Government, be entitled only to such rights and privileges and be subject to such conditions as are provided for under this Act and any other rights and privileges which may have accrued to any of them in the inam before the date of vesting against the inamdar shall cease and shall not be enforceable against the Government or the inamdar."
The above extracted provision provides that the inamdar, kabiz-e-kadim, permanent tenant, protected tenant and a non-protected tenant of inam lands and any person holding under them and a holder of an inam, shall, as against the Government, be en titled only to such rights and privileges and be subject to such conditions as are provided for under the Act and any other rights and privileges, which may have accrued to any of them in the inam before the date of vesting against the inamdar, shall cease and shall not be enforceable against the Government or the inamdar.
24. From the above discussion what follows is that, notwithstanding abolition of inams, an inamdar can transfer his rights in favour of any third person and the transferee would be entitled to all those rights and that such a transfer is not prohibited by the provisions of the Act.
25. We shall now refer to the earliest decision of a Division Bench of this Court in Govind Reddy v. Lakshminarayana Reddy, 1959(2) An.W.R. 201 on the question of the extent of rights of the Inamdar in the Inam lands after abolition of inams and the jurisdiction of the Civil Court to entertain a suit for partition of inam lands. In that case the contention was that having regard to the provisions of Section 3(1) of the Abolition of Inams Act, a partition suit involving Atiyat and inam properties could not be entertained in the Civil Court. In that context the court dealt with the transfer of rights by the Inamdar in the inam lands. The Division Bench, having considered Section 3 of the Inams Abolition Act, held:
"All the inams are abolished and they vested in the State. They become liable to payment of land revenue which they were exempted from before enfranchisement. These inams were shed of the peculiar characteristics which belonged to them before the said abolition. These consequences followed notwithstanding the existence of any law to the contrary. Therefore, in all respects, what consequences followed as a result of the Abolition of the Jagir Regulation of 1949 with regard to jagir, followed in so far as these inams were concerned."
The same view is taken by a learned single Judge of this Court in Kodithala Keshavulu v. Government of Andhra Pradesh, 1978(2) An.W.R.3. Therein, the learned single Judge observed as follows:-
"Had all the provisions of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955, been brought into force in 1955, then there is no doubt that the inamdar would have been recognised (subject to the requirements of Section 4 being satisfied) as an occupant and he would then have been entitled to alienate or transfer the said lancis. Merely because there has been a delay in implementing some of the provisions of the Act, such right of inamdar should not be taken away. Rule 5 clearly provides for an application being made not only by an inamdar, but also by his successor- in-interest. The word 'successor-in-interest is of wide amplitude. It need not be confined only to heirs. An interest can devolve either by succession or by private treaty or by the operation of law. In all these cases the person upon whom the interest devolves would be a successor-in-interest."
This view of the learned single Judge upholding the claim of the purchaser from the inamdar, was approved by another Division Bench of this Court in B. Ramender Reddy v. District Collector, 1993(2) An.W.R. 84.
26. It may also be pointed out that the judgment of the learned single Judge of this Court in Seethal Singh v. Malvnood Shnriff (lst supra) was overruled in B. Ramender Reddy v. District Collector, 1993(2) An.W.R. 84 and therefore it is no longer a good law. Thus, it follows that the contention that the inamdar had no right after abolition of inams and that the transfer of any right by the inamdar in favour of the defendants has no legal sanctity, cannot be accepted.
27. The application of the defendants is one under Section 4 of the Inam Abolition Act. The said section so far as it is relevant for the purpose of this case, viz., sub-section (1) of Section 4, is as follows:-
"4."Registration of inamdars as occupants :-
(1) Every inamdar shall, with effect from the date of vesting, be entitled to be registered as an occupant of all inam lands other than-
(a) lands setapart for the village community, grazing lands, mines and quarries, tanks, tank bed and irrigation works, stream and rivers;
(b) lands in respect of which any person is entitled to be registered under Sections 5,6,7 and 8 of the Act;
(c) lands upon which have been erected buildings owned by any person other than the inamdar-
which immediately before the date of vesting, were under his personal cultivation and which, together with any lands he separately owns and cultivates personally are equal to four and a half times the 'family holding'."
A perusal of the above provisions, makes it evident that the inamdar is entitled to be registered as occupant in respect of the categories of the lands enumerated therein, which immediately before the date of vesting, were under his personal cultivation and which, together with any lands he separately owns and cultivates personally are equal to four and a half times the 'family holding'. The same requirements have to be fulfilled in respect of claims under Sections 5,6,7, and 8 of the said Act. In an enquiry contemplated under Section 10 regarding the claims of the inamdars, Kabize-e-khadim, protected tenant and non-protected tenant for being registered as occupants under Sections4,5,6,7and 8, the authority before ordering registration as occupants, will have to be satisfied that (i) the lands in question were under the personal cultivation of the claimant; and (ii) together with any land owned and cultivated by him separately, are equal to four and a half times the family holding. The order of the Joint Collector, impugned in the Civil Revision Petition does not advert to these requirements. The Joint Collector merely confined his consideration as to who was in possession of the land and thus proceeded to confirm the right of occupancy in favour of the possessor without satisfying the requirement of the personal cultivation and the holding of the claimants.
28. We would, however, like to clarify that the question of personal cultivation has to be decided having regard to the nature of the land and other attendant circumstances. In the judgment, just pronounced by us in the L.P.A., the plaintiffs have been found to be not entitled to the possession of the land in question in their own right and that their possession pursuant to the orders of the Court and cultivation done by them therein would enure to the benefit of the persons who are held entitled to the possession thereof.
29. For the above reasons, we set aside the order under revision and remit the matter to the Revenue Divisional Officer, Chevella Division for fresh disposal in accordance with law keeping in view the observations made above.
30. In the result, the L.P.A.. is dismissed and the C.R.P. is allowed as indicated above; in the circumstances of the case, the parties are directed to bear their own costs.