THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR
Writ Appeal No.1057 of 2023
JUDGMENT: (Per the Hon'ble the Chief Justice Alok Aradhe)
Heard Mr. J.Kanakaiah, learned Senior Counsel appearing for
Mr. J.Narender, learned counsel for the appellant and
Mr. T.Srikanth Reddy, learned Government Pleader for Revenue
representing respondents No.2 to 4.
2. This intra court appeal emanates from an order dated 30.08.2023, by which writ petition preferred by the respondents viz., W.P.No.19394 of 2021 has been allowed and the order dated 28.07.2018, passed by the Revenue Divisional Officer, Mahabubnagar, as well as the order dated 21.06.2021, passed by the District Special Tribunal, Mahabubnagar, have been set aside. However, liberty has been reserved to the appellant herein to challenge the order dated 04.08.2014, passed by the Tahsildar, Mahabubnagar Mandal, in accordance with law by invoking appropriate legal remedy.
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3. The facts necessary for decision of this appeal are that the order dated 04.08.2014 was passed by the Tahsildar, Mahabubnagar Mandal. Against the aforesaid order, the appellant preferred an appeal under Section 5(5) of the Telangana in Land and Pattadar Passbooks Act, 1971 (briefly 'the ROR Act' hereinafter). The aforesaid appeal was allowed by the Revenue Divisional Officer, Mahabubnagar, by an order dated 28.07.2018. Thereupon, respondent No.1 (writ petitioner) challenged the aforesaid order in a writ petition. The learned Single Judge, by an order dated 30.08.2023, inter alia held that the order dated 04.08.2014 is an order passed under Section 40 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (briefly 'the Tenancy Act' hereinafter). It was further held that the aforesaid order ought to have been challenged in an appeal under Section 90 of the Tenancy Act instead of an appeal under Section 5(5) of the ROR Act. The order passed by the Revenue Divisional Officer and the District Special Tribunal were set aside. However, liberty has been reserved to the appellant to ::3::
challenge the order dated 04.08.2014 passed by the Tahsildar, in accordance with law.
4. Learned counsel for the appellant submitted that the lands in question are not protected tenancy lands. Therefore, the provisions of the Tenancy Act do not apply to the facts of the case. It is further submitted that Survey No.81/2 is a patta land and for this reason also the provisions of the Tenancy Act do not apply to the fact situation of the case.
5. We have considered the submissions made by learned counsel for the appellant.
6. Section 40 of the Tenancy Act reads as under:
40. Rights of protected tenant heritable :
(1) All rights of a protected tenant shall be heritable.
(2) If a protected tenant dies, his heir or heirs shall be entitled to hold the tenancy on the same terms and conditions on which such protected tenant was holding the land at the time of his death and such heirs may, notwithstanding anything contained in this Act, sub-divide inter se according to their shares the ::4::
land comprised in the tenancy to which they have succeeded.
(3) If a protected tenant dies without leaving any heirs, all his rights shall be extinguished.
Explanation:- The following persons only shall be deemed to be the heirs of a protected tenant for the purposes of this section:-
(a) his legitimate lineal descendants by blood or adoption;
(b) in the absence of any such descendants, his widow for so long as she does not remarry.
(4) The interest of a protected tenant in the land held by him as a protected tenant shall form sixty per cent.
7. Thus, it is evident that Section 40 of the Tenancy Act provides that the rights of protected tenants are heritable. The operative portion of the order dated 04.08.2014, passed by the Tahsildar reads as under:
"In the result, the petition filed by the appellant namely B.Yadaiah reference 2nd cited above is allowed for grant of succession to the protected tenancy of the late Bureddipally Nagadu @ Nagaiah, for the land bearing Sy.Nos.52 (Ac.0.35 gts), 53 (Ac.0.31 gts), 54 (Ac.0.31 gts) and 55(Ac.8.01 gts), situated at Yenugonda Village of Mahaboobnagar Mandal under Section 40 of the A.P.(T.A.) Tenancy and Agricultural ::5::
Lands Act, 1950, to the above said persons i.e., to the legal heirs of the protected tenant namely Bureddipally Nagadu @ Nagaiah and the following persons are the legal heirs, B.Narsimulu, who was first son of the protected tenant died leaving behind two sons namely (1) Bureddipally Yadaiah and (2) Bureddipally Raju, Bureddipally Adivaiah, who was the second son died leaving behind his wife namely Smt. Usenamma, his son Bureddipally Narsimulu and daughter Smt. Pushpanjali."
8. Thus, it is evident that the aforesaid order is an order passed under Section 40 of the Tenancy Act and therefore, the same is appealable under Section 90 of the Tenancy Act. Instead of filing appeal under Section 90 of the Tenancy Act, respondent No.1 challenged the same in an appeal preferred under Section 5(5) of the ROR Act. An appeal, against an order passed under Section 40 of the Tenancy Act, does not lie under Section 5 of the ROR Act.
9. For the aforementioned reasons, we do not find any ground to differ with the view taken by the learned Single Judge.
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10. In the result, the Writ Appeal fails and the same is, hereby, dismissed. No costs.
As a sequel, miscellaneous petitions, pending if any, stand closed.
__________________ ALOK ARADHE, CJ _______________________ N.V.SHRAVAN KUMAR, J Date: 09.11.2023 LUR