Man Mohan & Ors. Vs. Mohd .Mohinuddin Ali Khan (Dead) by LRS.
 INSC 874 (9
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5539 OF 2001 Man Mohan & Ors.
....Appellants Versus Mohd. Mohinuddin Ali Khan (dead) by L.Rs. ....Respondents
HARJIT SINGH BEDI, J.
1. This appeal is directed against
the judgment of the Andhra Pradesh High Court dated 17th February, 1999 whereby
the plea of the appellant to re-claim the status of a protected tenant under
Section 45 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural
Lands Act, 1950 (hereinafter referred to as "the Act") has been
rejected. The facts are as under:
2. Dilawar Ali Khan was the
original land owner. He filed an application under Section 44 of the Act for
determination of the protected tenancy of the predecessor in interest of the
appellants, one Ramalingam who was a protected tenant. The said application was
allowed in the year 1967, the tenancy terminated and the land holder was put in
The appellants as successors of
Ramalingam who died in 1973, filed an application under Sections 45 and 46 of
the Act for restoration of possession alleging that Dilawar Ali Khan and on his
death, his successors, had failed to cultivate the land in question as
contemplated by Section 45 of the Act and they were thus, entitled to a
restoration of the possession. The said petition was resisted by the land
holders and it has claimed that after the termination of the tenancy under
Section 44 of the Act, Dilawar Ali Khan had cultivated the land by investing a
huge amount thereon and that after his death his heirs had cultivated the land
with the assistance of one Gopaiah and Hanumaiah by paying their wages in kind.
It was also pleaded that
Ramalingam had died issueless and that Man Mohan one of the applicants who
claimed to be his 3 adopted son was in fact not so and as such the application
was not maintainable. The Revenue Officer called for evidence from both parties
and after a analysis thereof allowed the application, both on the question of
maintainability and also on facts.
3. Aggrieved thereby, the
applicants preferred an appeal before the Joint Collector. This officer found
that the applicants were indeed the legal heirs of Ramalingam and that Dilawar
Ali Khan nor his successors had cultivated the land after it had been restored
to them on an application under Section 44 of the Act. The appeal was
Aggrieved thereby the land owners
filed a revision petition under Section 91 of the Act before the High Court.
The court in its judgment dated 17th February, 1999 observed that the tenancy
in the hands of Ramalingam had been terminated under Section 44 in the year
1967 and though Ramalingam had lived upto 1973 he had not raised any question
with regard to the cultivation by the land owners. The court also observed that
there was clear doubt as to the claim of adoption made by Man Mohan as the
dependant certificate 4 which had been issued by the Revenue Officer accepting
his claim as the adopted son of the Ramalingam had no value, as it was the
civil court alone that could give such a declaration.
In conclusion, the Court observed
" I am of the opinion that
there is no evidence to establish that the respondents are the legal heirs and
successors of late Ramalingam and consequently they are not entitled to file an
application U/ss 45 and 46 of the Act".
4. The Court then examined the
basis on which the claim had been made and observed that from the evidence it
appeared that Dilawar Ali Khan had indeed invested huge amounts of money for
the installation of a pump and electric motor and though admittedly he and his
successors had taken the help of Gopaiah and Hanumaiah in the cultivation of
the land a perusal of their evidence showed that they were being paid on
"Batai" basis i.e. a share of the crops and as such the land was
deemed to be under the self cultivation of the land owners. The Court also
relied for its conclusion on a clarificatory Circular No. 650 dated 30th March,
1951, issued 5 by the Board of Revenue, Hyderabad to the effect that if a land
owner and one or more persons cultivated the land jointly sharing the expenses
as well as the yield, the question of the creation of a tenancy at will did not
arise. The High Court accordingly set aside the order of the Joint Commissioner
and restored the order of the Revenue Officer. It is in this circumstance, that
the tenants are before us.
5. Mrs. K. Amareswari, the learned
Senior counsel for the tenants - appellants has argued that though Man Mohan's
adoption by Ramalingam had been proved on record but even assuming for the
moment that his adoption had not been proved yet, the fact that the other three
claimants Erramma, Yadaiah and Eshwaraiah were his legal heirs was admitted and
they were accordingly entitled to maintain the application under Sections 45
and 46 of the Act. It has also been submitted that as per Section 45, if the
land owner did not cultivate the land within the time fixed in the said
provision, the tenants were entitled to a restoration of the land on an
application made for this purpose and as the final court of fact i.e. Joint
Commissioner had clearly 6 opined that neither Dilawar Ali Khan nor his
successors had cultivated the land, the appellants were entitled to succeed.
6. The learned counsel for the
respondents have however pointed out that the order of the Tahsildar granting
an adoption certificate with respect to Man Mohan was wholly without
jurisdiction and as there was no proof as to when Gopaiah and Hanumaiah had
been engaged for cultivating the land by Dilawar Ali Khan or his successors,
the appeal was liable to be dismissed.
7. We have gone through the
arguments advanced by the learned counsel for the parties. We are of the
opinion that we are not really called upon to examine Man Mohan's status as the
adopted son of Ramalingam in the light of the fact that the application for
restoration of possession filed under Sections 45 and 46 of the Act is
maintainable at the instance of the other three claimants who are admittedly
the heirs of Ramalingam. It is true, as has been contended by the learned
counsel, that Ramalingam lived upto the year 1973 but did not choose to make an
application in terms of Sections 45 and 46 during his life time and left it to his
successors to do 7 so after his death. We find from a perusal of the Act that
there appears no impediment to the maintenance of such an application, and a
perusal of Section 40 of the Act on the contrary clarifies that the rights of
protected tenants are heritable with a few exceptions which are of no concern
in this matter.
8. In this background the
substantive issue would be as to whether Dilawar Ali Khan or his successors had
cultivated the land in terms of Section 45 of the Act and on a failure to do so
the consequences thereof . Section 45 and 46 are re-produced below:
"45. Landholder to restore
possession if he fails to cultivate within one year:- (i) If upon the
termination of tenancy under section 44 the landholder - (a) does not within
one year from the date on which he resumed possession of the land, or (b)
having commenced such discontinues the same within ten years of the said date,
he shall forthwith restore possession of the land to the tenant whose tenancy
was terminated by him unless he has obtained from the tenant his refusal in
writing to accept the 8 tenancy on the terms and conditions prevailing before
the termination of the tenancy or has offered in writing to give possession of
the land to the tenant on the said terms and conditions and the tenant has
failed to accept the offer within three months of the receipt thereof:
(2) After the tenant has recovered
possession of the land under sub section (1) he shall, subject to the
provisions of this Act, hold the same on the terms and conditions on which he
held it immediately before the termination of his tenancy.
(3) If the land holder fails to
restore possession of the land to the tenant as provided in sub section (1) he
shall be liable to pay such compensation to the tenant as may be determined by
the Tahsildar for the loss suffered by the tenant on account of the eviction.
Explanation: For the purposes of
this section, references to a protected tenant shall include references to the
heirs mentioned in the Explanation to section 40.
46. Application for recovery of
possession by tenant: - If at any time the tenant makes an application to the
Tahsildar and satisfies him that the landholder has failed to comply within 9 a
reasonable time with the provision of Section 45, the protected tenant shall be
entitled on a direction by the Tahsildar to obtain immediate possession of the
land to such compensation as may be awarded by the Tahsildar for any loss
caused to the tenant by his eviction and by the failure of the landholder to
restore or give possession of the land to him as required by the said section.
9. A bare perusal of these
provisions reveals that a tenant is entitled to the recovery of possession in
case the owner does not cultivate the land personally or having commenced such
cultivation discontinues the same within ten years.
Section 2 (g) reads as under:
" "To cultivate
personally" means to cultivate on one's own account - (i) by one's own
labour, or (ii) by the labour of any member of one's family, or (iii) by
servants on wages payable in cash or kind, but not in crop share or by hired
labour under one's personal supervision, or the personal supervision of any
member of one's family.
10 It appears to be the conceded
position that the personal cultivation that was allegedly carried on by Dilawar
Ali Khan and his successors does not fall under sub clause (i) or (ii) and the
dispute pertains to the cultivation envisaged under sub clause (iii). It is the
case of the land owners that they had been cultivating the land through Gopaiah
and Hanumaiah and were paying them wages in kind. Mrs. K. Amareswari, the
learned Senior counsel, has contended that from the evidence on record
including the statements of Gopaiah and Hanumaiah both recorded on 24th
January, 1974 it was clear that they had cultivated the land on behalf of
Dilawar Ali Khan on "Batai" basis i.e. on half share of the produce
almost from the date that Dilawar Ali Khan had taken possession of the land in
1967. It is therefore apparent that as the land was being cultivated by these
two persons by giving a share of the crop to the landowners, it would not
amount to personal cultivation. The clarificatory circular issued in 1951 is
not applicable as it is nobody's case that Gopaiah and Hanumaiah were also
sharing the expenses of the cultivation.
Moreover this circular would not
over ride the statutory 11 provision 2(g)(iii) which was incorporated in the
Act in 1961.
We, are therefore, of the opinion
that the appellant must succeed on this basis. We accordingly set aside the
judgment and order of the High Court, and restore the order of the Joint
Collector dated 16th June, 1977. No order as to costs.