Telangana High Court

K. Narsimmulu Talla Narasimulu vs The State Of Telangana on 27 July, 2021

Bench: P Naveen Rao

     IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF
                        TELANGANA
                           ********

WRIT PETITION Nos.14924 AND 15031 of 2021

Date: 27.07.2021

W.P.No.14924 of 2021:

Between:

B.Malla Reddy, S/o B. Janga Reddy, Aged 68 years, Occ: Agriculture, R/o H.No.1-34, Kummera Village, Chevalla Mandal, Ranga Reddy District, and others.

.... Petitioners

And

The State of Telangana, Revenue, Rep., by its Principal Secretary, Secretariat, Hyderabad & others.

.... Respondents

DATE OF JUDGMENT PRONOUNCED : 27.07.2021

THE HON'BLE SRI JUSTICE P.NAVEEN RAO

1. Whether Reporters of Local Newspapers : No may be allowed to see the Judgments ?

2. Whether the copies of judgment may be : Yes marked to Law Reporters/Journals

3. Whether Their Lordship wish to : No see the fair copy of the Judgment ?

PNR, J W.P.Nos.14924 & 15031 of 2021

*THE HON'BLE SRI JUSTICE P.NAVEEN RAO

+ WRIT PETITION Nos.14924 & 15031 of 2021

%27.07.2021

# B.Malla Reddy, S/o B. Janga Reddy, Aged 68 years, Occ: Agriculture, R/o H.No.1-34, Kummera Village, Chevalla Mandal, Ranga Reddy District, and others.

... Petitioners Vs.

$ The State of Telangana, Revenue, rep., by its Principal Secretary, Secretariat, Hyderabad & others.

.... Respondents

!Counsel for the petitioners : Mr. L.Harish

Counsel for the Respondents: Special Govt. Pleader for respondents

<Gist :

>Head Note:

? Cases referred:

2006 (5) ALD 348 PNR, J W.P.Nos.14924 & 15031 of 2021

HONOURABLE SRI JUSTICE P.NAVEEN RAO

WRIT PETITION Nos.14924 AND 15031 of 2021

COMMON ORDER:

These two writ petitions are filed with identical prayers

praying to direct the respondent No.4 to initiate legal proceedings

on the application filed under Section 40 of the Telangana Tenancy

And Agricultural Lands Act, 1950 (for short, 'the Act, 1950). As the

issue for consideration being the same, they are considered and

disposed of by the common order.

2. Heard Sri L.Harish, learned counsel for the petitioners,

learned Special Government Pleader, office of the learned Advocate

General for the Respondents.

3. In W.P.No.14924 of 2021, petitioners claim that they are

lineal descendants of Ram Reddy, who was protected tenant of

land to an extent of Acs.4.12 guntas spread over Survey Nos.163,

164 and 165 (old Survey Nos.75, 76, 77, 78 and 79) of Kummera

Village. According to petitioners, late Ram Reddy was having four

children, late B.Venkat Reddy, late B.Anti Reddy, late B.Janga

Reddy and late B.Ram Reddy. Eldest son late B. Venkat Reddy

died at very young age. Late B.Anti Reddy being the next eldest

son, his name was recorded as protected tenant after the death of

Ram Reddy. Petitioners are sons of B.Kista Reddy. Petitioners

claim that on the above extent of land, they are also entitled to be

shown as protected tenants and to secure Section 38-E certificate.

Claiming so, they made an application in May, 2021, PNR, J W.P.Nos.14924 & 15031 of 2021

acknowledged by the office of the District Collector on 17.05.2021.

Alleging inaction, this writ petition is filed.

4. In W.P.No.15031 of 2021, petitioners claim that Talla

Narsimhulu (1st petitioner), late Talla Anta Goud, late Talla

Ramaswamy and late Talla Anjaiah were children of protected

tenant. Petitioner No.2 is son of late Anta Goud, petitioner No.3 is

son of late Ramaswamy and petitioner No.4 is son of late Anjaiah.

After death of protected tenant, being eldest of sons, name of

Talla Anta Goud was shown as protected tenant on land to an

extent of Acs.4.12 guntas in Survey Nos.163, 164 and 165 (old

Survey Nos.75, 76, 77, 78 & 79) of Kummera Village. As lineal

descendants of protected tenant, all the family members are

entitled to be declared as protected tenants of the total extent of

land standing in the name of late Talla Anta Goud. Claiming so,

they made application in May, 2021, acknowledged by the office of

the District Collector on 17.05.2021. Alleging inaction, this writ

petition is filed.

5. Learned counsel for the petitioners contends that

late B.Anthi Reddy and late Talla Antha Goud were surviving elder

family members on the day when protected tenancy register was

opened and therefore instead of reflecting the names of all sons, for

convenience only the eldest surviving sons of protected tenants

were shown. Merely because the elder surviving sons names are

reflected in the records, it cannot be said that they alone are to be

treated as protected tenants and the claims of other family

members as protected tenants cannot be ignored. Learned counsel

for the petitioners therefore submits that the District Collector PNR, J W.P.Nos.14924 & 15031 of 2021

ought to have acted upon the applications submitted by the

petitioners and ought to have taken remedial steps to grant the

relief prayed by petitioners.

6. According to learned counsel for the petitioners, Section

40 of the Act, 1950 enables the lineal descendant to record his

name as a protected tenant and the claim made by petitioners is in

compliance with the provisions of Section 40 of the Act, 1950.

7. Learned counsel for the petitioners further contends that the

issue arising out of the provisions of the Act, 1950 is to be decided

by the revenue authorities only and the jurisdiction of the civil

Court is ousted in view of Section 99 of the Act, 1950. Therefore,

only the revenue authority has to consider such application.

Therefore, there is no requirement to seek declaration about their

entitlement to be treated as lineal descendants of the protected

tenants and to seek appropriate relief.

8. Learned Special Government Pleader contends that the

issue, whether petitioners are to be treated as lineal descendants

and entitled to be recognized as protected tenants along with late

B.Anti Reddy and late Anta Goud, respectively, and that those two

persons are not entitled to claim exclusive right to succeed, are

matters to be adjudicated by the civil Court and unless and until

civil Court gives a declaration in favour of petitioners, the revenue

authorities cannot record their names as protected tenants. He

further submits that the scope of Section 40 of the Act, 1950 was

considered by this Court in Syed Abdul Majeed and others Vs PNR, J W.P.Nos.14924 & 15031 of 2021

Joint Collector-II, Ranga Reddy District and others1 and this

Court held that it is not within the purview of the revenue

authorities to decide the claims of succession to recognize them as

protected tenants.

9. In substance, the claim of the petitioners is, as lineal

descendants, they should get share in the land originally in

occupation by the protected tenant but cannot devolve on only late

B.Anti Reddy and late Tella Antha Goud respectively. Therefore,

filed application under Section 40 of the Act, 1950.

10. The issue for consideration is, whether the lineal

descendants of protected tenant are entitled to claim devolving of

tenancy rights to them on land standing in the name of one of the

children of protected tenant. There are two aspects to the issue.

Firstly, whether the claim of petitioners to succeed to tenancy

rights of their ancestor can be decided by the Tahsildar and

secondly, the entitlement of petitioners to recognise them as

protected tenants to subject lands.

11. To consider the issue, it is necessary to look into the

provisions of Sections 402 and 993 of the Act, 1950. Section 40 of

2006 (5) ALD 348

40. (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 53[and such heirs may, notwithstanding anything contained in this Act, sub-divide interse according to their shares the 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 of the market value of all the interests in the land and that of the landholder and of persons claiming under him shall be limited to the remaining forty per cent.]2

99. (1) [Save as provided in this Act]3 no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Tahsildar, Tribunal or Collector or by the Board of Revenue or Government. (2) No order of the Tahsildar, Tribunal or Collector or of the Board of Revenue or Government made under this Act, shall be questioned in any Civil or Criminal Court.

PNR, J W.P.Nos.14924 & 15031 of 2021

the Act, 1950 recognises heirs' right to succeed to protected

tenancy. Section 99 of the Act 1950 bars jurisdiction of Civil Court

on any issue settled, decided or dealt with by the authorities under

the Act.

12. Claim to succession cannot be decided by a Revenue

Tribunal and a person claiming to have succeeded to a right or

interest of his ancestor vested in a property has to seek declaration

from the civil Court. Once such declaration is granted by the civil

Court, he can make an application under Section 40 of the Act,

1950. From a plain reading of Section 99 of the Act, 1950 it is

apparent that jurisdiction of civil Court is not ousted on deciding

the issue of succession claim. It only bars jurisdiction of civil

Court against any decision made by the authority under the Act.

This finer distinction has to be kept in mind to understand the

scheme of the Act.

13. In Syed Abdul Majeed (supra), this Court considered the

scope of Section 40 of the Act, 1950. Learned single Judge held as

under:

11. There cannot be any doubt that with effect from the date of notification issued by the Government of Andhra Pradesh, every protected tenant in Telangana Area shall be deemed to be the full owner of the land and the land shall stand transferred and vest in such protected tenant. Therefore, when once the land becomes absolute property of the protected tenant such property can be held by the protected tenant like any owner and the law of succession applies. In case of death of protected tenant, who obtained a certificate under Section 38E, it goes without saying, that property shall be deemed to be self acquired property and all the legal heirs can partition the same or deal with the property as they like. Therefore, Section 40 of the Act, which declares right of protected tenancy heritable, would be insignificant. When such is the case, the question of MRO deciding issues of succession to the property held by protected tenant, which was later stood transferred and vested by reason of Sub-section (1) of Section 38E of the Act would not arise.

PNR, J W.P.Nos.14924 & 15031 of 2021

12. The position in the case of protected tenancy in respect of which a certificate under Section 38E of the Act is not obtained is no different. Section 40 of the Act only declares that protected tenancy is heritable and that legitimate lineal descendants by blood or adoption of protected tenant shall be entitled to hold tenancy on the same terms and conditions on which such protected tenant was holding the land at the time of his death. The same does not confer any power on any Revenue Authority much less MRO to decide disputed questions of succession. For instance if a question arises as to whether a person claims that he is a legitimate lineal descendant by blood or adoption, can it be decided by MRO. Legitimacy of a child is a matter for the Court to decide determining on the evidence as well as legal presumptions well recognized in law. Similarly, if there is a dispute between two or more persons claiming to be lineal descendants of the protected tenant, if their predecessor had already obtained a certificate under Section 38E of the Act and became absolute owner, it is not for the MRO to decide the question, Similarly, in the case of a protected tenant, who did not obtain a certificate under Section 32 of the Act, the MRO cannot decide the question, though it can be a matter of enquiry under the Rules, which essentially deal with preparation of preliminary record of tenancies of agricultural lands.

13. XXXX

14. XXXX

15. Reading Section 40 of the Act and the Tenancy Rules together, it must be held that though under Section 40 of the Act, Tahsildar has no power to decide questions of succession to the protected tenancy, in the event of acquisition of rights, Tahsildar can conduct verification under Rule 14 of the Rules and order amendments in the register of mutations. Such a procedure is also contemplated under Section 4 of the A.P. Rights in Land and Pattadar Pass Book Act, 1971 and Rule 18 of the A.P. Rights in Land and Pattadar Pass Book Rules, 1989. The enquiry contemplated for amending mutation in the event of acquisition of rights either by survivorship or succession is altogether different from adjudicating the question of succession. Even while dealing with the application for recording for amendment of entries in the mutation register, if there is a dispute by the applicant, the MRO should relegate such party to the Civil Court.

16. This Court in an unreported judgment in W.P. No. 7430 of 2000 held that the question as to who are the legal heirs of a deceased protected tenant has to be decided by a competent Court of civil jurisdiction. A similar view was expressed in another unreported judgment in W.P. No. 7018 of 2000. The decisions cited by the learned Counsel for the petitioner nowhere lay down that the Tahsildar/MRO is conferred with the power to decide questions of succession. By the very nature of enquiry involved in such application, the Tahsildar/MRO is not competent to decide questions of succession."

14. It is not in dispute that Protected Tenancy Register reflects

the name of late B.Anti Reddy and late Tella Antha Goud

respectively. In what circumstances, their names were reflected is

not known. The present status of the land is also not stated by the

petitioners. Affidavits are silent as to whether Section 38-E PNR, J W.P.Nos.14924 & 15031 of 2021

certificates were granted and further alienation has taken place.

Affidavits are also silent on how the revenue entries reflect the

possession. Petitioners have only filed entries of Tenancy Register

and applications made by them under Section 40 of the Act, 1950.

15. Even assuming, what is contended by petitioners is true and

Section 38-E certificates were not issued to those two persons and

lands in issue were not alienated, no third party interests are