Narsimha Vs. Hasan Ali Khan & Ors  Insc 72 (25 January 2007)
Arijit Pasayat & S. H. Kapadia Kapadia, J.
Jung Bahadur was a pattedar of the lands inter alia in Survey Nos. 63, 68, 69
and 70 admeasuring 69 acres 10 guntas in village Madhapur of Serlingampally Mandal,
Ranga Reddy in Andhra Pradesh. On the demise of Nawaz Jung Bahadur, one of his
sons Mohd. Ali Khan filed a suit for partition of the properties of late Nawaz
Jung Bahadur. This was in 1935.
scheduled property was Item 6 of Schedule B in Suit No. 42/62 filed in the City Civil Court, Hyderabad. In the plaint it was stated that Item 6 was in possession
of the tenants. One such tenant, Boddam Bala Mallaiah (hereinafter referred to
as "Bala") was the cultivating tenant in respect of Survey Nos. 63,
68, 69 and 70 of village Madhapur admeasuring 69 acres 10 guntas as indicated
by Khasra Pahani for the year 1954-55. Bala was a lessee for three years. He
was inducted in the aforesaid lands under a kaulanama dated 1.3.1953. This kaulanama
was executed by one Hamid Ali Khan son of Md. Nawaz Jung. Initially it was for
one year. It was renewed each year.
stated that on expiry of the stipulated period the tenant will have no right
over the land in possession. It further stated that Bala will be sole
cultivator and that without the permission of the landlord, Bala will not
include any other cultivator. Hamid Ali Khan sold his share to Bala on
23.11.1959 through a registered sale deed. The partition suit referred to above
filed in 1935 (renumbered in 1962) stood decided on 24.11.1970. This sale deed
dated 23.11.1959 in favour of Bala stood executed after the vendor Hamid Ali
Khan obtained permission under Sections 47 and 48 of the Hyderabad Tenancy and
Agricultural Land Act, 1950. The permission was obtained from Deputy Collector
on 13.11.1959. Accordingly, Bala became a pattedar in place of Hamid Ali Khan
in respect of the suit land. In the revenue records for the year 1972-73, the
name of Bala was shown as pattedar. The alienation in favour of Bala was during
the pendency of the suit for partition of the ancestral properties belonging to
Nawaz Jung Bahadur. Bala died in 1975. He was the paternal uncle of the
to the preliminary decree, an Advocate Commissioner was appointed in the final
decree proceedings vide I. A. No. 854/84 in suit No.
On 28.11.1993 the said Commissioner came to the suit site to measure the lands.
At that stage the LRs. of Bala and his 2 brothers instituted a suit for
permanent injunction against the respondents herein being suit No. 294/93 which
was dismissed on 8.6.1998. The important point to be noted is that the
plaintiffs in the said suit did not allege Bala to be a protected tenant. Bala
had two brothers, namely, Agaiah (father of the appellant) and Komariah.
the vendees ( K. Sambasiva Rao and ors.) who claimed title through the LRs. of Bala
and his two bothers instituted another suit for permanent injunction against
the respondents herein. This suit was dismissed on 8.6.1998.
of Bala and his two brothers filed one more application before the Special
Court under the Land Grabbing (Prohibition) Act, 1982 which was dismissed by
the Special Court vide Order dated 13.5.1997.
failed in the above proceedings, an application was moved on 16.12.1998 before
the Tribunal (R.D.O.), Ranga Reddy Distt. seeking a declaration of protected
tenancy under Section 37-A of the Tenancy Act.
application was moved by the present appellant. In the said application, it was
alleged for the first time that late Bala was a protected tenant. By the said
application, the appellant also asked for an Ownership Certificate under
Section 38-E of the A. P. (Telangana Area) Tenancy & Agricultural Lands
Act, 1950 ("the Act") as amended from time to time. In other words,
the appellant herein invoked the said Act for the first time on 16.12.1998
though Section 37-A stood incorporated in the tenancy law by way of an
(Amendment) Act, 1955, which came into force on 12.3.1956.
was the paternal uncle of the appellant herein. He died in 1975.
during his lifetime, did not claim to be a protected tenant. In fact, as stated
above, he became a pattedar prior to 1.1.1973. Even his LRs. did not claim that
Bala was a protected tenant in respect of the said land, therefore, for the
first time, the nephew of Bala, the appellant herein, sought a declaration that
Bala was a protected tenant under Section 37-A and accordingly claimed an
Ownership Certificate under Section 38-E of the Act after a lapse of more than
40 years. No explanation was given in the application by the appellant for not
invoking section 37-A for almost 40 years. The Tenancy Act came into force on
10.6.1950. At this point it may be stated that the appellant herein is not the
L.R. of Bala. The appellant is the nephew of Bala, however, appellant claims
that Bala was cultivating the above lands with his two brothers, namely, Agaiah
(father of the appellant herein) and Komaraiah.
receipt of the said application dated 16.12.1998, the matter was referred by
the Tribunal to the Mandal Revenue Officer ("M.R.O."), who reported
that there was no protected tenants in respect of the suit lands and that Bala's
name was never recorded as protected tenant in respect of the said lands. It
was further reported that Bala was the pattedar, that he was cultivating the
lands as pattedar and that he was cultivating as Owner under the above
sale-deed dated 23.11.1959.
the Tribunal, two contentions were advanced, namely, that Bala was a deemed
tenant under section 5 of the Act. It was also contended that, in any event, Bala
was the protected tenant under section 37-A of the Act and, therefore, he was
entitled to Ownership Certificate under section 38-E of the Act. Both these
contentions were rejected by the Tribunal vide order dated 24.8.1999. It was
held that section 5 contemplates making of an application by the landlord upon which
the Tehsildar had to decide whether there is a deemed tenant on the property.
The Tribunal held on the facts of the present case that neither the appellant
protested against omission of Bala's name from the revenue records as a deemed
tenant nor has the landlord filed an application before the Tehsildar to
declare Bala not be a tenant. No application was ever made to rectify the
alleged mistake/ omission. In the circumstances, the Tribunal held that section
5 of the Act has no application. On the second point regarding applicability of
section 38-E, the Tribunal held that in 1975 an enquiry was conducted pursuant
to the Notification issued by the Government enforcing the provisions of
section 38-E. In that enquiry, it was found that there were no protected
tenants in Madhapur village. For the aforestated reasons, the Tribunal
dismissed the application made by the appellant.
by order of the Tribunal dated 24.8.1999, the appellant herein preferred an
appeal under Section 90 of the Act. The appeal was dismissed by the Joint
Collector vide order dated 13.3.2000. Thereupon, a Civil Revision Petition was
filed by the appellant herein under section 91 of the Act which was dismissed
by the High Court vide judgment dated 16.4.2001 which is now under challenge
before this Court.
F.S. Nariman, learned senior counsel, appearing on behalf of the appellant submitted
that a statutory right of protected tenancy is not lost on account of delay or laches.
It was submitted that such a right is not obliterated for want of application,
particularly when the law does not contemplate any such application by the
person claiming to be a protected tenant and also in the absence of any injury
or prejudice to the land holders.
this connection, it was urged that under section 37-A of the Act, a tenant in
possession on 12.3.1956 becomes a protected tenant; that section 37-A directs
the authorities to record him as a protected tenant and that section 37-A does
not prescribe any application to be made and, therefore, in such circumstances,
it cannot be said that a statutory right is lost because the concerned person
did not make any application for recognition of his status as a protected
tenant. In order words, it was urged that if a tenant is in possession on
12.3.1956, then the statute confers upon him the status of a protected tenant
and such a right continues even if the person entitled thereto fails to move
the authorities for grant of a declaration. In the circumstances, it is urged
that the appellant was entitled to a certificate of ownership under section
38-E of the Act, which stood introduced w.e.f. 1.1.1973.
next urged that delay or omission, if any, to compile list of protected tenants
under sections 37-A and 38-E of the Act was on account of the failure on the
part of the concerned authorities under the Act for which the tenant cannot be
denied as status of protected tenancy by invoking the theory of laches and
delay. Learned counsel urged that the statutory rights of the protected tenant
conferred under section 37-A upon cultivating tenants in possession on
12.3.1956 are automatic and not dependant on applications to be made. He
acquires rights of ownership under section 38-E of the Act automatically. That
the respondents were pattedar of lands admeasuring 2000 acres which was more
than the ceiling prescribed and, therefore, Bala had acquired rights of protected
tenancy under section 37-A of the Act because he was the cultivating tenant in
possession on 12.3.1956. According to section 38-E, the ownership of the land
stood automatically transferred to protected tenants if the conditions under
section 38(7) stood satisfied.
to the appellant, under section 38-E, the authorities were duty bound to
prepare a provisional list of protected tenants to whom ownership stood
transferred. A general notice was required to be published. Individual notices
were required to be given to the protected tenants of the land holders.
public enquiry was required to be made. Only then a final list had to be
published. Learned counsel submitted that no such notice was ever given to the
appellant though the appellant's family continued to remain in possession. The
appellant have challenged the finding of the Tribunal that there was an enquiry
and a nil provisional list was prepared in 1975 under section 38-E against
which there was no protest from the appellant or from the LRs. of Bala. As no
such notice was ever issued, the application made by the appellant in 1998
under section 38-E should have been treated as an objection to the provisional
list and, therefore, the Tribunal had wrongly rejected the appellant's
application for Ownership Certificate. Learned counsel urged that the name of Bala
was recorded in the Khasra Pahani for the year 1954-55 as a tenant and his name
was shown as a pattedar subsequently and, therefore, it was the statutory duty
of the Tribunal to conduct an enquiry suo moto which they fail to do. It is the
case of the appellant that they are in possession of the lands right throughout
and they moved under the Act only when their possession sought to be disturbed.
counsel submitted that it was the duty of the concerned authorities to prepare
a list of protected tenants. They fail to prepare the list, therefore,
according to the learned counsel, the application of the appellant under
section 38-E ought not to have been rejected on the ground of delay and laches,
particularly when under the Act there is no limitation prescribed. The
appellant had approached the Tribunal when the Advocate Commissioner appointed
by the civil court, in the partition suit filed by the owners (respondents
herein) sought partition of the properties belonging to late Nawaz Jung Bahadur,
tried to dispossess the appellant. Therefore, the appellant's right to seek a
declaration/ Ownership Certificate arose only when the Advocate Commissioner
tried to dispossess the appellant. Mere laches would not disentitle the tenant
to the relief sought for by him under the Act. In this connection, reliance was
placed on the judgment of the Full Bench of the Andhra Pradesh High Court in
the case of Sada v. The Tahsildar, Utnoor reported in AIR 1988 AP 77. It was
submitted that the accrued right in favour of the tenant by operation of law
does not get defeated merely by omission to have their names recorded in the
revenue records. In this connection, reliance was placed on the judgment of
this Court in the case of Bahadur Singh and ors. v. Shangara Singh and ors.
in (1995) 1 SCC 232. It was next contended that in view of the Memo dated
11.9.2000 issued by the R.D.O. stating that the particulars of tenants who
became protected tenants under section 37-A was not available though the
register contains particulars of 36 other villagers. The High Court should have
directed the Tribunal to hold an enquiry and compile a register on the basis of
the village record since no person can be affected on account of omissions on
the part of the Tribunal in complying with the statutory mandatory provisions
of the Act.
the following reasons, we do not find any merit in the above contentions.
was a koul who had taken an annual lease from Hamid Ali Khan. He was a
tenant-at-will. This was during the pendency of the partition suit. He became a
pattedar vide conveyance dated 23.11.1959. The kaul itself indicates, that Bala
was to cultivate in his individual capacity; that at the end of the year, Bala had
to return the lands to the owner; that Bala was not given the right to include
any other cultivator. Therefore, there is no merit in the contention of the
appellant that Bala was jointly cultivating the suit lands with his two
brothers Agaiah (father of the appellant) and Komaraiah. Further, between
tenancy and the conveyance, there was a time gap. Hamid Ali Khan was a pattedar.
His rights were purchased by Bala vide conveyance dated 23.11.1959, therefore,
on 1.1.1973, when the Notification came to be issued, Bala was not the tenant.
He was a pattedar.
appellant herein is not the L.R. of Bala. Bala was his paternal uncle. At no
point of time, even the LRs. of Bala had claimed that Bala was a protected
tenant. It is evident from section 38-E that the said section has been enacted
for those protected tenants who are declared to be protected tenants and
included in the Register prepared for that purpose. A person becomes a
protected tenant when he is a holder on the dates or for the periods mentioned
in sections 35, 37 and 37-A. Once a person becomes a protected tenant, he is
entitled to an Ownership Certificate under section 38- E. In the case of Sada
(supra) the Full Bench of the Andhra Pradesh High Court held that a person
"holds" the land as protected tenant if he is still a protected
tenant on the notified date i.e. 1.1.1973, though out of possession.
long as his right as protected tenant has not been determined by the date of
Notification in a manner known to the Act, he holds the land as a protected
tenant, whether physically in possession or not. For the vesting of ownership
of land held by a protected tenant under section 38-E, it is not necessary that
the protected tenant should be in physical possession on 1.1.1973. It is
sufficient if he continues to hold the status of a protected tenant on the
notified date, even if he is not in physical possession. The Act does not
merely regulate the relationship of landlord and tenant but deals with the
alienation of agricultural land and includes transfer of the land holders
interest to the protected tenants. Therefore, the grant of pattedari (ownership
rights) also finds place in the Act.
facts and circumstances of the present case, Bala had become a pattedar (owner)
under the conveyance dated 23.11.1959. His name was shown as a pattedar even
prior to 1.1.1973. The benefit of section 38-E is given to persons who hold the
lands as protected tenants and who continue to hold the lands as protected
tenants on 1.1.1973. The protected tenancy has to be enforced on 1.1.1973.
Under section 38-E, ownership rights are conferred only upon persons who
continue to be protected tenants as on 1.1.1973. They form a special class. In
the present case, as stated above, Bala became a pattedar in 1959. In the case
of Sada (supra) it has been held that protected tenants are covered by Chapter
IV of the Act. They fall under a limited category. They are referred to in
sections 34, 37 and 37-A. In the said judgment, it has been held that section
37-A, introduced by Act No.
deals with a separate class of persons deemed to be protected tenants.
class of persons is different from the category of protected tenants who fall
under sections 34 and 37 respectively. Section 37-A refers to persons who are
holders of the land at the commencement of Amending Act of 1955 (12.3.1956).
These persons were required to be tenants on 12.3.1956 and that they should
continue to be tenants till 1.1.1973. Only such category of persons are
entitled to Ownership Certificate under section 38-E. In the present case, even
for the sake of argument, if we were to proceed on the basis that Bala was a
protected tenant on 12.3.1956, still Bala became a pattedar vide conveyance
dated 23.11.1959, therefore, in any event, the assumed protected tenancy did
not continue up to 1.1.1973. In our opinion, therefore, in any view of the
matter, the appellant herein was not entitled to the Ownership Certificate
under section 38-E of the Act. Section 38-E has no application to the facts of
the present case.
conclude on this point by quoting para 44 of the judgment of Andhra Pradesh
High Court in the case of Sada (supra).
In our view, this contention is not correct. If a protected tenant is already
in physical possession on the date of notification there is no problem at all.
If proceedings under S. 19, 32 or 44 are pending, the date of vesting gets
itself postponed. If the 'protected tenancy' stood validly terminated by the
date of notification under S. 19, 32 or 44, in that case, no certificate at all
can be issued. But, as long as a person continued to be a 'protected tenant'
either under S. 34, 37 or 37-A, as per the Act and has not lost that status,
whether he is in actual possession or not on the date of notification, and is
also to be 'deemed' to be in possession under the first part of the Explanation
subject to S. 32(7) and the proviso to S. 38-E(1), the ownership stands
transferred straightway to such protected tenant by the very force of S. 38-
S. 38-E(2) read with the A. P. (T.A.) Protected Tenants (Transfer of Ownership
of Lands) Rules, 1973 contemplates a full-fledged inquiry after notice to the
landholders or after hearing objections of any other interested person (vide Rr.
4, 5). Once a certificate is issued, the same is, under S.. 38E(2), 'conclusive
evidence' of the ownership of the protected tenant, and cannot be defeated by
the result of any inquiry under second part of the Explanation to S. 38- E.
Another reason for this view is that the inquiry under S. 38-E(2) read with the
Rules of 1973 referred to above, is to be done by the Tribunal (the Revenue
Divisional Officer) and obviously his decision to grant the ownership
certificate will not and cannot be jeopardised by the result of any inquiry by
a subordinate official like the Tahslidar, who deals with the granting of
possession to a 'protected tenant." (emphasis supplied) Secondly, as
stated above, Bala was a lessee from Hamid Ali Khan.
itself indicates that Bala was obliged to cultivate the lands in his individual
capacity. However, it was urged on behalf of the appellant that Bala jointly
cultivated the lands with Agaiah (father of the appellant herein), and Komaraiah.
We gave opportunity to the appellant to produce any entry from the revenue
records, village records or mutation entry indicating joint cultivation of the
land by Bala and his two brothers. Appellant had not been able to show any such
entry. This aspect is important since the appellant is not the L.R. of Bala. At
no point of time, Bala or his LRs. or even the appellant has approached the
authorities to record joint cultivation in the mutation entries. Under section
48-A of the Act, restrictions are placed on alienation by a protected tenant. A
protected tenant on 1.1.1973 cannot alienate the right of ownership under
section 38-E for eight years from the date of acquisition of such rights.
Further, under section 40 of the Act, all rights of a protected tenant are
heritable by his lineal descendants by blood or adoption. Bala died in 1975. Bala
died during the period when there was restriction on alienation of ownership
rights acquired by a protected tenant under section 38-E. The present appellant
has not applied on the demise of Bala for his name to be brought on record as
L.R. of Bala or on the basis of joint cultivation by his father, Agaiah and
other uncle Komaraiah. Further under section 4 of the Andhra Pradesh Rights in
Land and Pattadar Pass Book Act, 1971, acquisition of rights have got to be
intimated. Any person who acquires any right by succession, survivorship,
inheritance, partition, patta or otherwise has to intimate in writing about his
acquisition of such right. There is nothing to show that Bala and his two
brothers were jointly cultivating the lands. In fact, the kaul did not allow Bala
to cultivate the land with any other person without the prior permission of the
landlord. In the circumstances, there is no evidence to show that the land was
jointly cultivated by Bala along with Agaiah and Komaraiah. Therefore, in any
view of the matter, since the present appellant is not the L.R. of Bala, he is
not entitled to an Ownership Certificate or a declaration of protected tenancy
under the Act. In our view, having failed in the civil court and before the
special court under the Land Grabbing Act the present appellant falsely claimed
to be a protected tenant as on 1.1.1973. The entire exercise was an abuse of
process of law. In the circumstances, the High Court was right in dismissing
the petition on the ground of delay and laches.
aforestated reasons, there is no merit in the civil appeal and the same is
dismissed with no order as to costs.