Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, (for short 'the Tenancy Act') - Land Acquisition Act - Agricultural land - Tenancy certificate - Owner entitled for 40% - Tenants entitled to 60% = disputes between Dadyadies - Appellants failed to prove that the Tenancy certificate was issued in the name of their father - Respondents pleaded they are in possession on behalf of all family members - Hence original brothers are number in 4 , the appellants and respondents being successors their respective families - appellants are entitled to 1/4th share - Appeal is allowed partly = J.Narayana & Others.... Appellants Jainapalli Pedda Kistaiah and others....Respondents = published in judis.nic.in/judis_andhra/filename=10627

Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, (for short 'the Tenancy Act') - Land Acquisition Act - Agricultural land - Tenancy certificate - Owner entitled for 40% - Tenants entitled to 60% = disputes between Dadyadies - Appellants failed to prove that the Tenancy certificate was issued in the name of their father - Respondents pleaded they are in possession on behalf of all family members - Hence original brothers are number in 4 , the appellants and respondents being successors their respective families - appellants are entitled to 1/4th share - Appeal is allowed partly =
The Land Acquisition Officer paid
40% of the compensation to the land owner and deposited the remaining 60% in the 
Court, while making reference under Sec.30 of the Act in respect of one piece of
the acquired land.
(1)     Whether the appellants have established either that they are the
protected tenants or owners under Sec.38E of the Tenancy Act, in respect of the
lands in question? = No.
(2)     Whether the Respondents were in possession of the lands, by the time
they were acquired, and if so in what capacity? - yes
(3)    Whether the appellants or the Respondents are entitled to claim the
compensation in its entirety or they are entitled to any share? 1/4 th share
Strictly speaking, once it is held that the Respondents were in
possession of the land and that the appellants did not establish their rights
under the Tenancy Act, the decree passed by the trial Court in both the OPs must
be upheld. 
 However, we find that even according to the Respondents they were
holding the land on behalf of the entire family and they never claimed any
exclusive rights for themselves. 
 Out of six brothers, three figured as
Respondents and two brothers, namely, Siddaiah and Chinna Babaiah are not  
claiming.  
The appellants represent the branch of Pedda Babaiah.  
We are of the
view that the compensation payable in both the OPs., can be divided in four
equal shares, and each brother, or their respective branch/legal
representative(s) can be allocated one share each.  If so done, the appellants
would be entitled to be paid 1/4th of the amount of the compensation.

We, accordingly, allow the appeals in part and direct that the
compensation shall be apportioned in such a way that the appellants or their
representative(s) are paid 1/4th share and the Respondents namely, Pedda
Kishtaiah (Respondent No.1), Chinna Kishtaiah (Respondent No.2) and Samaiah  
(Respondent No.7) or their representative(s) shall be entitled to be paid 1/4th
share each.  There shall be no order as to costs.

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY and THE HON'BLE SRI JUSTICE M.S.K.JAISWAL            

CCCA Nos.86 of 1993

21-11-2013

J.Narayana & Others.... Appellants


Jainapalli Pedda Kistaiah and others....Respondents


Counsel for petitioner  :  Sri Prabhakar Peri

Counsel for respondents:  Sri G. Anjappa & Sri L. Sudheer

<GIST:

>HEAD NOTE:  

?CASES REFERRED:    

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

and

THE HON'BLE SRI JUSTICE M.S.K.JAISWAL      
                               
CCCA Nos. 86 & 87 of  1993
               
COMMON JUDGMENT: (Per the Hon'ble Sri Justice L. Narasimha Reddy)    
        These two appeals are between the same parties.  Apart from that, similar
questions of law and fact are involved.  Hence, they are disposed of through
this common judgment.  For the sake of convenience, the parties are referred as
arrayed in CCCA No.86 of 1993.
2.       Very large extent of land in Gudimalkapur and other revenue villages was
acquired in the year 1978 for the purpose of laying the 'inner ring road' in the
city of Hyderabad.  
A Notification under Sec.4 (1) of the Land Acquisition Act,
1894 (for short 'the Act') was published on 18.05.1978.  
The land in Sy. Nos.
216, 217 and 221 of Gudimalkapur revenue village, admeasuring about Ac.1-05
guntas was also notified.  Similarly, through another Notification, the land in
Sy. Nos. 207, 208, 209, 214 and 215/1, admeasuring Ac.13.14 guntas was notified 
for the same purpose.
The appellants, on one hand, and the Respondents (other
than the Land Acquisition Officer), on the other hand, laid claims for payment
of compensation in respect of both the pieces of land.  While in the first case,
the award was passed on 08.03.1983, in the second case, the award was passed on
24.03.1986.
In view of the rival claims made before him by the appellants, the
Land Acquisition Officer referred the matters to Civil Court under Sec.30 of the
Act.
Accordingly, they were taken up as O.P.No.151 of 1983 and O.P.No.267 of
1986 respectively by the Court of the I-Additional Judge, City Civil Court,
Hyderabad.  Through a common order dt. 25.10.1993, the trial Court held that the
respondents are entitled to be paid the compensation and not the appellants.
Aggrieved by the same, CCCA Nos.86 & 87 of 1993 are filed against the order and
decrees in O.P.Nos.151 of 1983 and 267 of 1986 respectively.
3.      Sri Prabhakar Peri, learned counsel for the Appellants submits that the
lands were covered by the provisions of Andhra Pradesh (Telangana Area) Tenancy 
and Agricultural Lands Act, (for short 'the Tenancy Act'), and the father of the
appellants by name, Pedda Babaiah, was recognized as protected tenant (for short
'the PT').  He contends that in recognition of the rights of the father of the
appellants as P.T., the authorities under the Tenancy Act have prepared a list
for conferment of rights of ownership under Sec.38-E and the names of the
appellants have figured therein.  He submits that the trial Court has totally
ignored the consequences that flow from the P.T. Certificate and the rights of
ownership under sec.38-E of the Tenancy Act.  Learned counsel submits that the
trial Court was mostly impressed by the fact that the Respondents remained in
possession of the land, by the time it was acquired, and if one goes by the
scheme under the Tenancy Act, it makes no difference whether the P.T. or the
one, conferred with ownership rights under Sec.38-E is in possession of the land
or not.  He further submits that assailing the inclusion of the names of the
appellants in the list for conferment of rights of ownership under Sec.38-E, the
land owners as well as the Respondents initiated proceedings before the
appellate authority as well as this Court and in none of those proceedings, they
were successful.
        Placing reliance upon several precedents, learned counsel submits that it
was not at all competent for the trial Court to examine the matter pertaining to
the issuance of P.T. Certificate or the inclusion of names for conferment of
rights of ownership.
4.      Sri G. Anjapppa, learned counsel for the Respondents 1 to 7 and Sri L.
Sudheer, learned counsel for Respondent No.10, on the other hand, submit that
except making a spacious and vague plea that they are the children of a
protected tenant and that they have been conferred rights of ownership in
respect of the land in question, the appellants did not place any material in
support of their case.  They contend that undisputedly the Respondents were in
possession and enjoyment of the property, for a period, exceeding two decades
before it was acquired by the Government under the Act.  They further submit
that there did not exist any P.T. Certificate in the name of the appellants or
their father and just by drawing inference that Ex.A-8 is in favour of the
father of the appellants, several claims were being made from time to time.
They submit that the appellants were not issued the certificate under sec. 38-
E(2) at any point of time and as long as such certificate is not issued, no
person can claim rights of ownership under the Tenancy Act.  Learned counsel
submit that the trial Court had taken correct view of the matter and the same
does not warrant any interference in the present appeals.
5.       The trial Court conducted a common trial of both the OPs., and common
evidence was recorded.  Only one point was framed for consideration, namely,
which of the rival claimants are entitled for the compensation for the acquired
land, deposited in the Court.
6.      On behalf of the appellants, the 3rd appellant deposed as PW-1 and Exs.A-1
to A-6 were marked.  Out of them, Ex.A-1 is an order passed by the Revenue
Divisional Officer, Ex.A-2 is an order passed by the Joint Collector in appeal
filed against the order in Ex.A-1; and Exs.A-3 to A-6 are the copies of
pahanies.  On the other hand, on behalf of the Respondents, RWs.2 to 4 were
examined and Exs.A-7 to A-50 were filed.  The point was answered in favour of
the Respondents in both the OPs.  Here itself, it needs to be noted that the
claims before the Land Acquisition Officer included those of the land owner and
two sets of persons claiming to be the P.Ts.  The Land Acquisition Officer paid
40% of the compensation to the land owner and deposited the remaining 60% in the 
Court, while making reference under Sec.30 of the Act in respect of one piece of
the acquired land.  As regards the other, entire amount was deposited in the
Court and reference was made under Sec.30 of the Act.
7.      In view of the extensive arguments advanced by the learned counsel for the
appellants herein, the following points arise for consideration in the present
appeals:
(1)     Whether the appellants have established either that they are the
protected tenants or owners under Sec.38E of the Tenancy Act, in respect of the
lands in question?
(2)     Whether the Respondents were in possession of the lands, by the time
they were acquired, and if so in what capacity?
(3)    Whether the appellants or the Respondents are entitled to claim the
compensation in its entirety or they are entitled to any share?
8. POINT NO.1:  The Tenancy Act was brought into existence way back in the        
year 1950 as a measure of agrarian reforms.
 One Smt. Qutubunnisa Begum was the   
owner of the lands, which have been acquired.  Fairly vast extent of land of
Gudimalkapur revenue village, including the land which is the subject matter of
these appeals, was acquired.
The plea of the Respondents is that their father
Pochaiah had six sons, including themselves, Siddaiah, Pedda Babaiah (father of
the appellants) and Chinna Babaiah, and that all of them were cultivating the
acquired lands by taking the same on lease from Smt. Qutubunnisa Begum.  It was
also mentioned that the lease was being extended from time to time in favour of
the entire family.  Though they claimed a semblance of settlement in respect of
the family house under Ex.A-7 that is not at all relevant for the purpose of
this case.  According to the Respondents, their father Pochaiah died somewhere
in the year 1949 and in the year 1951, the patwari of the village handed over
them Ex.A-8, P.T. Certificate, in which the name of "Baliga" was written.  They
pleaded that the entire family was in possession and enjoyment of the property
and since the certificate was bereft of any details and full of inaccuracies,
they did not take any steps for correction thereof.  The actual dispute said to
have arisen when a provisional list was published under sec. 38-E(1) in the year
1975 and the landholder raised objections thereto.  They plead that, being the
tenants of the land, they are entitled to be paid the entire 60% of the
compensation for both the pieces of land.
9.      The appellants, on the other hand, pleaded that Ex.A-8 is in the name of
their father, and in recognition of their succession, their names were included
in the provisional list for grant of ownership rights under sec.38-E(1) of the
Tenancy Act.  They contend that though, at one stage, the very inclusion was
sought to be challenged by filing appeals and revisions, on different occasions,
they were successful althrough.  Reference is made to Exs.A1, A2, A47 and A48.
       
10.     We are conscious of the fact that a civil Court cannot at all determine
the validity or otherwise of a P.T. Certificate, if it is issued validly by
competent authority in favour of any particular individual.
Similarly, the
determination or conferment of rights under Sec.38-E is not amenable to any
mechanism, other than the one provided under the Tenancy Act itself. 
Reference
in this context is made to several judgments of the Supreme Court and this
Court.
11.     In case, Ex.A-8 was issued in favour of any particular individual with
proper description in respect of any specific item of land, the said individual
can certainly derive benefit of it and even if there exists any rival claim, it
is not at all for the civil Court to deal with the same.
A perusal of Ex.A-8
discloses that it was issued on 10.12.1951 in the name of one 'Babiga'.  Neither
the surname nor the name of the father of the said 'Babiga' is mentioned.  The
appellants claim that it was issued in the name of their father.
12.     The name of the father of the appellants is 'Pedda Babaiah'.  He is one of
the six sons of 'Pochaiah'.  Among the brothers itself, there are two persons,
named as Babaiah, i.e., 'Pedda Babaiah' and 'Chinna Babaiah'.  The appellants
are not revealing as to when their father died.  The Respondents made an
endeavour to show that Pedda Babaiah died much prior to the issuance of Ex.A-8.
13.     Ex.A-7 is said to be a deed of settlement, dated 1.7.1955.  It was signed
by the mother of the appellants.  
On that basis, the Respondents intend to plead
that Pedda Babaiah was not alive by the date of Ex.A-7, i.e., 01.07.1954.  The
evidence of PW-3 is to the effect that Pedda Babaiah died five years before the
date of Ex.A-7.  That takes the date to 1949.  
The appellants are not able to
demonstrate that the version put forward by PW-3 is not correct.  
Therefore, it
emerges that - (a) Ex.A-8 was issued in the name of a person, whose identity is
difficult to ascertain, and  (b) it was issued about two years after the death
of the father of the appellants.
14.     Assuming that the certificate was issued in the name of the father of the
appellants, they did not take any steps to get succession on its basis, as
provided for under Sec.40 of the Tenancy Act.  
The justification pleaded there
for is that Sec.40 provides for automatic succession in favor of Class-I heirs,
and it is not at all necessary for the successors to apply for grant of
succession.  
This plea can be accepted if there is no uncertainty about the
attendant facts.  
There is nothing on record to disclose that the appellants
ever made any effort to connect themselves to Ex.A-8.  
As observed earlier, they
were not even aware of the existence of Ex.A-8, till it was produced by the
Respondents in the Court.
15.     The other plank of argument advanced by the appellants is on the basis of
Sec.38-E of the Tenancy Act.  
Once an individual is recognized as P.T. under
that Act and is issued a certificate in the proforma, he becomes entitled to be
conferred with the rights of ownership under Section 38-E, subject to certain
conditions, such as, the owner being not in possession of more than two
holdings.
The conditions with reference to the holdings of the landholder on
one hand, and protected tenant on the other hand are required to be complied
with.
Once a provisional list is published, the Tahasildar is placed under
obligation to conduct enquiry under sub-section (2), and issue certificate
thereafter.
The legal consequences that flow from the certificate contemplated
under Section 38-E (2) can be discerned from the language employed therein.  It
reads:
38-E. Ownership of lands held by protected tenants to stand transferred 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 land-holders 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 on 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 purposes 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 ninety days from the date of notice of issue of the certificate under
sub-section (2), every land-holder 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
sub-section (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-section (4) to (8) of Section 38 shall
mutatis mutandis apply to such application;
Provided that if the protected tenant commits default in respect of any
instalment, it shall be recovered by the Government as arrears of land revenue
and paid to the landholder:
Provided further that if the whole or any part of the price due to the
landholder cannot be recovered as arrears of land revenue, the transfer shall
not be effective and the amount, if any, already paid by the protected tenant
towards the price shall be refunded to him together with interest at three per
cent per annum and the land revenue paid by him, if any, after deducting
therefrom the rent for the period.
(4) ..... ..... .....  .....
(5) ..... ..... ..... ..... (omitted as not necessary for this case).
                       
16.     From a perusal of the above, it is clear that it is only after the
certificate is issued under sub-section (2), that the rights of ownership stand
conferred upon a protected tenant.  Another important aspect is that even where
a certificate is issued, it must be followed by determination of the amount to
be paid to the land owner and actual payment thereof.  The default in payment of
price in its entirety or portion thereof would lead to annulment of the
ownership.
17.     In the instant case the appellants were not issued any certificate of
ownership at all.  They did not even produce any deed of lease, which contains
their names.  It was not even pleaded that the price for the land was determined
and the same was paid as provided under sub-section (3) of Sec.38-E of the
Tenancy Act. 
18.     Strenuous attempt is made by the learned counsel for the appellants to
convince us that the contents of Ex.A-47, Ex.A-48, Ex.A-1 and Ex.A-2 can be
treated as conferment of rights of ownership in respect of the land i.e., the
subject matter of the appeal i.e., CCCA No. 86 of 1993.     It is true that
there is a reference to the land in Sy. Nos. 216, 217 and 221 in the documents
referred to above.  That at the most would lead to a situation where a list of
the persons, who are otherwise entitled to be conferred with the rights of
ownership, is prepared and the names of the appellants figured therein.
However, that is not the end of the matter.
19.     While sub-section (1) of Section 38-E is substantiative in nature, the
rights thereunder into reality, only can transform or metamorphosis into
ownership only when a certificate under Section 38-E (2) is issued.  It is
important to note that issuance of certificate is not just a ministerial act.
It is preceded by an enquiry and is required to be issued in prescribed
proforma.  The provision makes it amply and abundantly clear that it is only on
being issued the certificate, that a person, who was recognized as P.T., would
become the owner of the land with effect from the date of certificate. Any
stage, preceding the issuance of a certificate, would, at the most be
preparatory in nature and the Tenancy Act does not provide for any specific
rights in favour of a person, who is not issued a ownership certificate.  At the
most he would retain the character of a P.T.
20.     Exs.A1 and A-2 do not have the effect of conferring of ownership
certificate or rights upon the appellants.  They are only in relation to certain
objections raised in respect of the lease.  At any rate, the proceedings under
Exs.A-1 and A-2 took place, by which time the lands stood vested in the
Government by operation of Sec.16 of the Act.  Point No.1 is answered
accordingly against the appellants.
21.     POINT NO.2:  Notwithstanding the uncertainty about the nature of rights
referable to the Tenancy Act, the fact remains that the Respondents were in
possession of the land, till it was acquired by the Government.  They filed a
bunch of pahanies, particularly,  Exs.A-39 to A-43, which cover the period
between 1954-55 and 1978-79.  They disclose that the Respondents are in
possession of the land.  That, in fact, was acknowledged by the land owner, in
various proceedings.  Obviously, recognizing this fact, the Land Acquisition
Officer paid 40% of the compensation in respect of the land covered by appeal -
CCCA No.87 of 1993 to the land owner and left the dispute in relation to the
remaining 60%, to be resolved by the civil Court.  The appellants did not
dispute that the Respondents were in possession and enjoyment of the land.
22.     It is important to note that if a P.T. or his successors are dispossessed
from the land, they can seek the relief of recovery of possession under Section
32 of the Tenancy Act by filing application before the Tahasildar.  As a matter
fact, they filed an application under Sec. 32 of the Tenancy Act way back in the
year 1988 for recovery of possession against the Respondents.  That, however,
was after the lands were acquired and Notification under Sec.4 (1) of the Act
was published.  Till today no orders have been passed thereon.  The result is
that the Respondents are undisputedly in possession of the land and in contrast
the appellants were never in possession of the same, till it was acquired.  The
Point No.2 is answered accordingly.
23. POINT NO.3:  Strictly speaking, once it is held that the Respondents were in
possession of the land and that the appellants did not establish their rights
under the Tenancy Act, the decree passed by the trial Court in both the OPs must
be upheld. 
 However, we find that even according to the Respondents they were
holding the land on behalf of the entire family and they never claimed any
exclusive rights for themselves.
 Out of six brothers, three figured as
Respondents and two brothers, namely, Siddaiah and Chinna Babaiah are not  
claiming.  
The appellants represent the branch of Pedda Babaiah.
We are of the
view that the compensation payable in both the OPs., can be divided in four
equal shares, and each brother, or their respective branch/legal
representative(s) can be allocated one share each.  If so done, the appellants
would be entitled to be paid 1/4th of the amount of the compensation.
24.     We, accordingly, allow the appeals in part and direct that the
compensation shall be apportioned in such a way that the appellants or their
representative(s) are paid 1/4th share and the Respondents namely, Pedda
Kishtaiah (Respondent No.1), Chinna Kishtaiah (Respondent No.2) and Samaiah  
(Respondent No.7) or their representative(s) shall be entitled to be paid 1/4th
share each.  There shall be no order as to costs.
25.     Consequently, the miscellaneous petitions, if any pending, shall stand
closed accordingly.
_____________________  
L. NARASIMHA REDDY, J    
________________  
M.S.K. JAISWAL,J  
Dt. 21..11.2013

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