Once a ownership certificate is issued under Section 38E of the Act, the plea of alleged oral surrender of tenancy rights would have been relevant, only if an appeal was filed against the order granting ownership certificate under Section 38E of the Act,- after the grant of Section 38E certificate, the petitioners' possession was restored by the Revenue Inspector under panchanama on 06.06.1978. In my opinion, once the tenants, in whose favour ownership certificate has been issued under Section 38E of the Act, have been put in possession of the property, they cannot approach the Tahsildar again and again for restoration of possession whenever they are dispossessed for, they no longer continue to be under protection of the provisions of the Act as they have evolved into full-fledged owners with the issuance of the ownership certificate under Section 38E of the Act. If they are subsequently dispossessed, they can only approach the competent civil Court by way of a suit.

The Hon'ble Sri Justice C.V.Nagarjuna Reddy

Civil Revision Petition No.1520 of 2012

13-09-2012

Ramulu and others

Smt. Sumitra Bai (died) and others


Counsel for the petitioners     : Mr. V.H.V.R.R. Swamy

Counsel for the respondents     : Mr. P. Laxma Reddy

<GIST:

>HEAD NOTE:  

?CASES REFERRED:    
1. 1978 (1)  ALT 508
2. 1997 (1) ALT 627

Order:
This Civil Revision Petition is third in succession in respect of a dispute
between the same parties.
One Mr. Basaiah, who is the father of petitioner Nos.1 to 4, was the protected
tenant in respect of Acs.3.29 guntas of land in Survey No.121 situated at
Madharam Village of Pargi Mandal. After his demise, ownership certificate under
Section 38E of the Andhra Pradesh (Telangana Area) Tenancy & Agricultural Lands
Act, 1950 (for short "the Act") was granted to the petitioners herein who
claimed through the said Basaiah by the Mandal Revenue Officer, Pargi. The
petitioners approached the Mandal Revenue Officer, Pargi for putting them in
possession in respect of the said land. By order dated 15.05.1987, the Mandal
Revenue Officer has directed the petitioners to be in possession. This order was
questioned by the respondents, who are the original land owners, in an appeal
filed under Section 90 of the Act before the learned Joint Collector, Ranga
Reddy District. The said appeal was allowed by order dated 05.05.1990 mainly
relying upon the alleged surrender of tenancy rights by the father of petitioner
Nos.1 to 4 orally prior to 1953. The petitioners filed C.R.P.No.2024 of 1990
before this Court questioning the said order. The said C.R.P. was allowed by
order dated 26.06.1995 and the case was remanded to the learned Joint Collector
with a direction to him to consider the case of the petitioners that the tenancy
rights were not surrendered by Basaiah. After remand, the learned Joint
Collector dismissed the appeal by order dated 23.10.2000. Feeling aggrieved by
the said order, the respondents have filed C.R.P.No.5756 of 2000. The said
C.R.P. was allowed by this Court by order dated 18.03.2010 and the case was
again remanded to the learned Joint Collector on the ground that while disposing
of the appeal, he has not dealt with the question on which the case was remanded
by this Court while disposing of C.R.P.No.2024 of 1990. After remand, the
learned Joint Collector has passed order dated 07.03.2012 whereunder the
petitioners were relegated to the civil Court by filing a suit for recovery of
possession. Feeling aggrieved thereby, the petitioners filed the present civil
revision petition.

I have heard Mr. V.H.V.R.R. Swamy, learned counsel for the petitioners, and Mr.
P. Laxma Reddy, learned counsel for the respondents.

The fact, which is undisputed, is that the petitioners were given ownership
certificate under Section 38E of the Act in recognition of the protected tenancy
rights of their predecessor in title, namely, Basaiah. The order dated
05.05.1990 of the learned Joint Collector allowing the appeal filed by the
respondents proceeded on the premise that the tenancy rights were surrendered by
the father of  petitioner Nos.1 to 4 and that the same was accepted by some of
the petitioners herein who were defendant Nos.2 to 6 in the written statement in
O.S.No.16 of 1978 on the file of the learned District Munsiff, Pargi filed by
the original land owner Manik Prabhu. In C.R.P.No.2024 of 1990, this Court has
observed that the pleading in the written statement relating to the purported
surrender was not of the petitioners but of somebody else. In the light of this
submission, this Court has directed the learned Joint Collector to re-examine
this aspect and, accordingly, remanded the case. After remand, the learned Joint
Collector has dismissed the appeal filed by the respondents. The plea raised by
the respondents regarding the oral surrender was dealt with by the learned Joint
Collector in his order dated 07.03.2012 as under:

"In this regard, as per the written statement the tenancy rights were
surrendered in the year 1953 itself. The respondents contend that their
predecessor-in-title never surrendered their protected tenancy rights and
another written statement was filed in the suit. But, the parties not produced
any relevant documents as per their contention."

As noted above, the respondents filed C.R.P.No.5756 of 2000 against the said
order dated 23.10.2000 of the learned Joint Collector. This Court has disposed
of the said C.R.P. and opined that while considering the appeal, the learned
Joint Collector has proceeded entirely on a different ground without adverting
to the aspect relating to the surrender of tenancy rights pleaded by the
respondents, as directed by this Court in C.R.P.No.2024 of 1990. After remand,
while disposing of the appeal, the learned Joint Collector observed that as per
the written statement filed in O.S.No.16 of 1978, the surrender of tenancy
rights was accepted and that the petitioners failed to file any written
statement in which such surrender was denied. However, the learned Joint
Collector has left the option open to the petitioners to file a suit for
recovery of possession, as, since they have become the owners consequent on
obtaining Section 38E certificate, their remedy lies in filing a civil suit for
recovery of possession.

At the hearing, the learned counsel for the petitioner placed before the Court a
photo copy of certified copy of the written statement filed by the petitioners
herein in O.S.No.16 of 1978. It is inter alia averred in the said written
statement that the ownership certificate was already issued under Section 38B
(Sic.E). In paragraph 4, it is inter alia averred as under:

"That as regards the para 3 of the plaint it is submitted that it is a fact that
the defendant No.1 and the father of the defendant No.2 to 6 were joint
protected tenants over the suit land and the other allegations and statement
made there in the para are incorrect and so denied. It is false to say that the
defendant No.1 and the father of the defendant No.2 to 6 surrendered their
rights of tenancy and left the suit land in favour of the plaintiff's father in
1953 and it is also equally false to say that since the plaintiff's father and
after his death in the year 1960 the plaintiff personally cultivated the suit
land and that he (plaintiff) us cultivating the suit land. It is false to say
that Basaiah and Shantappa never cultivated the suit land after the year 1953
and their right of tenancy is ceased and that defendants never claimed any
tenancy rights. The fact is that the defendant No.1 is colluded with the
plaintiff to put the defendant No.2 to 6 into loss and deprive these defendants
from the suit land. The plaintiff is indebted to the defendant No.1. Apart from
the above the defendant No.1 is in inimical terms with the defendant No.2 to 6
as he has filed another suit vide O.S.No.25 of 1978 against these defendant No.2
to 6 on the file of this Hon'ble Court which is pending. These defendants are
vehemently contending the above suit and so he bore grudge against them."
(Emphasis added)


The underlined part of the extract of the written statement is added in
manuscript as obviously they were omitted while preparing the certified copy by
the staff of the lower Court. If we omit this part, there may be a scope for
contending that defendant Nos.2 to 6 admitted surrender of protected tenancy
rights by their father. But if we exclude this part, the sentence would be
incohesive and would not convey proper meaning. I am, therefore, fully convinced
that the emphasized portion in the above extracted part of the written statement
was initially omitted by inadvertence and is very much part of the written
statement.

Thus, in paragraph 4 of the written statement, defendant Nos.2 to 6 have denied
in unequivocal terms  the alleged surrender. Obviously, defendant No.1, who
filed a separate written statement, has accepted the plaintiff's plea of oral
surrender of the tenancy rights. It is significant to note that in paragraph 4
of the written statement, the petitioners herein have alleged collusion between
defendant No.1 and the plaintiff in order to cause loss to their interests by
depriving them of the land. In paragraph 5 of the written statement, the
petitioners asserted their right and possession over the land in respect of
which Section 38E certificate was issued. Unfortunately, a copy of this written
statement did not appear to have been produced before the learned Joint
Collector. In ordinary course, this Court would have remanded the case to the
learned Joint Collector. But, considering the fact that this case was remanded
twice earlier and the dispute is pending for the last 25 years,
I refrain from doing so.

Even otherwise, on the facts of this case, the alleged surrender of tenancy
rights by the petitioners' father has no relevance. Once a ownership certificate
is issued under Section 38E of the Act, the plea of alleged oral surrender of
tenancy rights would have been relevant, only if an appeal was filed against the
order granting ownership certificate under Section 38E of the Act, as rightly
observed by the learned Joint Collector in his order dated 23.10.2000. It is not
the pleaded case of the respondents that either they or their predecessors have
filed any appeal against the order granting ownership certificate under Section
38E of the Act in favour of the petitioners. As on the date the ownership
certificate is in force in favour of the petitioners. In this view of the
matter, the observations of the learned Joint Collector in the impugned order
that the petitioners have not produced any relevant documents to support their
plea of non-surrender of protected tenancy rights are of no consequence as there
can be no dispute over the petitioners' right of ownership over Ac.1.34 1/2
guntas.

The only other question, which requires to be considered, is whether the
petitioners are entitled to recovery of possession. The learned counsel for the
petitioners placed reliance on the proviso to Section 38E(2) of the Act which
reads as under:

"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."

The learned counsel for the respondents relied on a Division Bench Judgment of
this Court in Chinnaboini Narsaiah and others Vs. The Tahsildar, Mahabubabad,
Warangal District and others1 and submitted that when once the ownership rights
are conferred on a protected tenant, the Tahsildar cannot order restoration of
possession, as the tenant became the owner of the property and that he can no
longer seek protection under the provisions of the Act. A perusal of this
judgment shows that the same was rendered prior to the amendment to Section 38E
of the Act by Act 2 of 1979 which introduced the above re-produced proviso.
Therefore, the said judgment has no relevance to the present case.

However, the question that remains to be considered is, whether on the facts of
this case, the petitioners are entitled to restoration of possession. In
paragraph 5 of the written statement filed in O.S.No.16 of 1978, the petitioners
averred as under:
"That as regards the para 4 of the plaint it is submitted that the R.D.O.
Vikarabad has rightly issued ownership certificate u/s 38E in favour of the
defendants and so the allegation and statement made in the para are false and so
denied. It is submitted that the defendants are in actual possession and
enjoyment of the suit land, therefore the suit for injunction is not
maintainable as the plaintiff is not in possession of the suit land on the date
of filing the suit and also prior and after. D.2 to D.6 were dispossessed in
1977 and so D.2 to D.6 were not in possession of the suit land  again by R.I.
under panchanama on 6.6.1978. Since then the defendants are in possession and  
enjoyment of the suit land."


From the above-mentioned averments, it is clear that after the grant of Section
38E certificate, the petitioners' possession was restored by the Revenue
Inspector under panchanama on 06.06.1978. In my opinion, once the tenants, in
whose favour ownership certificate has been issued under Section 38E of the Act,
have been put in possession of the property, they cannot approach the Tahsildar
again and again for restoration of possession whenever they are dispossessed
for, they no longer continue to be under protection of the provisions of the Act
as they have evolved into full-fledged owners with the issuance of the ownership
certificate under Section 38E of the Act. If they are subsequently dispossessed,
they can only approach the competent civil Court by way of a suit. This view of
mine is fortified by the judgment of this Court in Jupudi Bhushanam Vs. Joint
Collector, Khammam and others2.

In the light of the above discussion, I am in agreement with the conclusion
arrived at by the learned Joint Collector in the impugned order though for
different reasons. The petitioners having become owners of the property are
entitled to seek restoration of their possession as owners thereof through a
civil Court. Accordingly, while holding that the petitioners are the owners of
the property to the extent of Ac.1.34 1/2 guntas, they are permitted to file a
civil suit for recovery of their possession, in accordance with law.

The Civil Revision Petition is, accordingly, allowed to the extent indicated
above.

As a sequel to allowing the civil revision petition, C.R.P.M.P.No.2030 of 2012
is disposed of as infructuous.

__________________________  
(C.V.Nagarjuna Reddy, J)
13th September, 2012