Bheemati Dawood v. Madichetty Rachaiah & Others

This revision is filed under Section 91 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as " the").

The petitioner submitted an application under Section 32 of thebefore the Mandal Revenue Officer, Sadasivapet Mandal, Medak District, the 2nd respondent, claiming that his father late Baliga was the protected tenant in respect of lands in Sy.Nos.504, 505 and 506 of Sadasivapet Village and Mandal, admeasuring about 10 acres and the 1st respondent, who is the landlord, is unauthorisedly continuing the possession of the said land. He prayed for restoration of possession to him. The 2nd respondent passed an order dated 8-8-1994, rejecting the claim of the petitioner.

Aggrieved by the same, the petitioner preferred an appeal before the Revenue Divisional Officer, Sanga Reddy. The appeal was dismissed through orders dated 8-5-1995. Alleging that the proper forum of appeal is the Joint Collector, the 3rd respondent herein, the petitioner presented another appeal before the 3rd respondent against the order of the 2nd respondent with an application to condone the delay. Through his orders dated 10-04-2003 the 3rd respondent dismissed the appeal. Hence, this revision.

Learned counsel for the petitioner submits that once an individual is declared as a protected tenant under the in respect of a piece of land, such protected tenant or his legal representatives are entitled to be restored possession of such land, irrespective of gap between the date of dispossession and date of submission of application. He contends that while the 2nd respondent rejected the application of the petitioner on the ground that ownership certificate under Section 38-E of the Act, was not issued for such lands, the 3rd respondent rejected the appeal on the ground that the father of the petitioner was not the protected tenant at all. He contends that the final record of agricultural tenancies issued in Form No.V in respect of the lands in question conforms to part 1; applicable protected tenancies and the minor discrepancies therein were inconsequential. He also contends that the plea of surrender of tenancy put forward by the 1st respondent does not accord with the procedure prescribed by law.

Learned counsel contends that in the appeal presented to the Revenue Divisional Officer improperly, an altogether a different view was taken and in that view of the matter, the orders under revision cannot be sustained in law. He submits that there is no valid surrender of tenancy and an improper surrender of tenancy is inoperative in law. Placing reliance upon Section 32 of the Act, the judgment of his Court rendered by a Full Bench in Sada vs Tahsildar, Utnoor (1987 (2) ALT 749(FB), and the judgment of the Bombay High Court in Keshav Ganesh Badekar vs. Gopinath Krishna Salunke(2003 AIHC 1918), he submits that the petitioner it entitled to be restored the possession of the land.

Learned Additional Advocate General appearing for the 1st respondent submits that the basic requirement for initiation of proceedings under Section 32 of theis the existence of an undisputed protected tenancy. He contends that the extracts of final record of tenancies in respect of the land in question clearly demonstrate that it was issued for non-protected tenancies. It is also his case that whatever be the nature of the tenancy, the father of the petitioner had surrendered it, way back in the year 1963, and that it was recorded by the then Tahsildar in accordance with Section 19 of the. Learned Additional Advocate General also contends that in view the Supreme Court in Ponnala Narsing Rao vs. Nallolla Pantaiah (1998 (9) SCC 183 [LQ/SC/1997/1225] ), a belated application under Section 32 of thecannot be maintained. He further contends that the 1st respondent had developed the land, incurred expenditure, and created 3rd party rights after 1963, and that an application under Section 32 of the Act, cannot be entertained after 30 years.

The petitioner claims that his father was the protected tenant in respect of the land referred to above. On that basis, he submitted an application under Section 32 of the. The claim was rejected by the Mandal Revenue Officer, the 2nd respondent and the rejection was affirmed in the appeal by the 3rd respondent.

The A.P. State Legislature enacted the with a view to confer rights on the tenants of Agricultural lands. Two types of tenancies were dealt with under the, namely, protected tenancies, and non-protected tenancies. Section 34 of theprescribed the circumstances under which a person can be deemed to be a protected tenant, such as, being a tenant for a period not less than six years preceding 1-1-1948, or for a period not less than six years commencing from 6-10-1943 and having cultivated personally, during such period. The Act provides for the transformation of protected tenancies into ownership rights, under Section 38-E. Such a facility does not exist in case of non-protected tenancies. They are dealt with under Section 5 of the.

The Act contemplates preparation, of list of final tenancies. Once such a list is published, the effected persons, be it, tenants or landlords, are permitted under Section 35 to submit their objections within a period of one year from the date of commencement of the, in the prescribed form to the Tahsildar. Under sub-section (2) thereof, the list, which is prepared after consideration of such objections, assumes finality.

Rules are framed under the for the purpose of preparation of final list of non-protected tenancies and other allied matters. The record of agricultural tenancies is required to be maintained in Form No.V. Part-I thereof applies to protected tenancies and part-II for non-protected tenancies.

A tenancy in respect of agricultural land can be terminated only in accordance with the procedure Scheduled under Section 19 of the. It insists that the surrender of the tenancy shall be in writing, admitted before the Tahsildar and made in good faith.

Reverting to the facts of the case, the petitioner did not place much material before the 2nd respondent along with the application. However, the 1st respondent filed copy of final list of tenancies prepared in 1951; copy of Kasara Pahani for 1954-55; copy of record of rights of the year 1979-80; Pahani for 1991, and copy of the judgment of the Land Reforms Tribunal, passed in the declaration submitted by him.

The petitioner relied upon the final list of tenancies prepared in respect of the village. There is some discrepancy as to the heading of the list. On the one hand, it is indicated that the list is prepared in Part-I and on the other hand, it is described as the one for non-protected tenancies. As observed earlier, this Part applies to protected tenancies.

The list is followed by a revenue record called as Kasara pahani, which is prepared in the years 1954-55. This constituted the basis for recording of the nature of the rights in respect of the lands, at the relevant period of time. In this, the land is recorded in the name of the 1st respondent. In column No.17, relating to the name of the person, who is actually cultivating the land, the name of the 1st respondent is entered. In column No.15, which relates to the encumbrances and other rights, the name of the - father of the petitioner is entered as tenant. Since the is part of agrarian reforms, the benefit, of doubt deserves to be read in favour of the tenants. Therefore, for all practical purposes, it can be proceeded as though the father of the petitioner was the protected tenant in respect of the said lands.

The 2nd respondent took the view that the material before him does not support the claim of the petitioner and at any rate no certificate under Section 38-E of the Act, was issued for the land.

He treated non-existence of a certificate under Section 38-E, as a circumstance against the petitioner this regard, it needs, however to be observed that the right of a protected tenant or his successor restored the possession of the land, does not depend on the existence of a certificate under Section 38-E. It may be to that a protected tenancy, subject to certain conditions apply open into an ownership under Section 38-E.

However, the fact that a protected tenant or his successor is not issued any ownership certificate under Section 38-E, does not, in any way, water down his rights, under Section 32 of the. Therefore, it needs to be seen as to whether the father of the petitioner continued to be a protected tenant in respect of the said lands.

In the copy of the abstract of protected tenancies issued in Part-1, the name of the father of the petitioner figured vis-a-vis the lands referred to above. In the same abstract, there is an endorsement vide proceedings No.C2/3144/1963 mode by the then Tahsildar. This is in Urdu. The translation thereof is said to be to the effect that the protected tenant has surrendered his tenancy. The tenancy, be it, protected or otherwise, referred to in the, can be surrendered only in the manner prescribed under Section 19. Any surrender, otherwise than through the procedure prescribed under Section 19, cannot be recognized in law. The Bombay High Court in Keshav Ganesh Badekar vs. Gopinath Krishna Salunke (2 supra) held so, while dealing with an analogous provision in the Bombay Tenancy and Agricultural Lands Act, 1948. There are several judgments of this Court to the same effect.

Neither Section 19 nor the Rules prescribe any form, for the purpose of surrendering any tenancy. Section 19, however, insists that the surrender shall be in writing and the tenant shall admit of such surrender, in the presence of the Tahsildar. Therefore, the prime requirement is that the surrender shall take place in the presence of the Tahsildar. In the case on hand, the endorsement as to surrender was made by the Tahsildar in the year 1963. It refers to certain proceedings, which indicate that a separate file is prepared therefore. Learned counsel for the petitioner submits that when the petitioner made applications for such certified copy of the said proceedings, they were not furnished. On that basis, he disputes the very existence of surrender.

It is too difficult to accept the contention of the petitioner in this regard. The endorsement made by the Tahsildar is in the year 1963. The provisions of Section 19 can be said to have been complied with, in the matter of surrender. The fact that ever since the surrender, the 1st respondent exercised the right of an absolute owner in respect of that land, would add strength to the validity of such surrender. It is a matter of record that the 1st respondent submitted a declaration under the provisions of the A.P. Land Reforms on Agricultural Holdings Act, 1973 (for short "the Ceiling Act"), showing the land in Sy.Nos.504, 505 and 506, as part of his holding. The Land Reforms Tribunal held that the 1st respondent owns an extent of .8 standard holdings and the, land to that extent was surrendered by the 1st respondent. Thereby, he suffered detriment in the form of surrender of equivalent extent of lands under the Ceiling Act. Had there been any dispute as to the surrender of tenancy, the occasion to part with equal extent of land would not have arisen.

The father of the petitioner was alive till the year 1984. He did not make any claim for the lands in the said survey numbers during his lifetime. While tenancy is a phenomenon brought about by operation of law, surrender comes into existence with specific acts of parties. If the person alleged to have surrendered the tenancy remains silent for petitioner two decades after such surrender, an inference as to its validity can necessarily be drawn. Therefore, it is not open to the petitioner to take exception to the surrender of tenancy by his father. Though it is alleged that the endorsement as to surrender of tenancy was made when the matter was pending before the Revenue Divisional Officer a perusal of the record discloses that the contention is without any basis. Once the tenancy was surrendered in accordance with Section-19 of the, it was not open to the petitioner to submit an application under Section 32 of the.

In Sada vs. Tahsildar, Utnoor (1,supra) the Full Bench of this Court took the view that a tenant or his legal heir is entitled to be restored the possession of the land covered by the tenancy, irrespective of the date of dispossession. Section 32 applies to non-protected and protected tenancies. The plea of adverse possession against the tenants of any category, was held to be not available. In a way, it was indicated that there is no time limit for seeking restoration of possession under Section 32. Recently, the Supreme Court struck a different note on this aspect, mostly on the grounds of estoppel and acquisance. In Ponnala Narsing Roo vs. Nollolla Pantaiah (3 supra), the Supreme Court held as under:

"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 land by improving it."

In the present case, the petitioner did not plead as to when his or his father dispossessed. The entries in the Kasara Pahani for the years 1954-55 discloses that the 1st respondent was in possession of the land. Though the father of the petitioner was shown as protected tenant the tenancy was surrendered in the year 1963. The application is made for the first time by the petitioner in the year 1994. The 1st respondent exercised the rights of absolute ownership at least from 1963. He surrendered their land from other survey numbers equivalent extent in these survey numbers under the Ceiling Act". It is categorically pleaded that he has developed the land by incurring huge expenditure. The factors indicated by the Supreme Court to reject a belated application under Section 32 of theare clearly established in this case through record.

Under these circumstances, the petitioner cannot be said to have made out a case for restoration of possession, under Section 32 of the.

The C.R.P. is accordingly dismissed. No costs.