short 'Tenancy Act') and the Rules made thereunder.
2. Respondent No.5 - Mrs. M. Sridevi (since died, represented by
her legal heir - respondent No.6 viz., Mr. Reddy Gokul Kumar) was the
No.A/1138/1997 dated 25.08.2004. Respondent Nos.2 to 11 in the said
appeals are legal heirs of the protected tenants Mr. Maheswaram Lingaiah
alias Potti Linga and Mr. Talari Lakshmaiah.
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3.1. It was claimed by respondent No.5 in the aforesaid appeals
before respondent No.3 that one Mr. Jagannath Reddy was absolute owner,
same as pattedar and possessor. The subject land was cultivated by one
Register. In 1951, the said protected tenants Mr. Potti Linga and Talari
of the subject land by putting the original pattedar Mr. Jagannath Reddy in
possession of the same. Pahanies right from 1951-52, 1952-53, 1953-54
clearly indicate that Mr. Jagannath Reddy is pattedar and possessor of the
subject land. In 1981, Mr. Jagannath Reddy sold the subject land to one
Mr. Bojana Mallaiah under an unregistered sale deed and delivered
3.2. Khasra Pahani of 1954-55 clearly shows that Mr. Jagannath
Reddy was pattedar and Mr. Bojana Mallaiah was cultivator and Khangi
Khareeddar (purchased under an unregistered sale deed). From the date of
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Mr. Bojana Mallaiah and his name was also recorded as pattedar and
possessor in the revenue records. Subsequently, ownership of the subject
4.2. Mr. Potti Maisaiah, son of Mr. Lingaiah, filed an application
before respondent No.4 on 25.05.1997 stating that his father Mr. Lingaiah
expired leaving him behind two sons viz., Mr. Potti Gandaiah and Mr. Potti
Maisaiah. Mr. Potti Gandaiah expired leaving behind his son Mr. Potti
Krishna. Hence, requested to grant succession of protected tenancy rights
in favour of the legal heirs of the protected tenants. Respondent No.4
of protected tenancy rights of Mr. Potti Lingaiah in favour of Mr. Potti
Maiasaih, son of Mr. Potti Lingaiah, and Mr. Potti Krishna, son of Mr. Potti
Proceedings No.A/1139/1997 dated 04.11.1997. They also filed an
been illegally occupied by some people including respondent No.5. By the
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4.3. It was further contended by the legal heirs of the protected
Section 38(2) of the Tenancy Act. The RDO passed order by the
on 31.12.2004. Respondent No.4 vide Proceedings No.B/03/2006 dated
the revenue records and they were issued pattadar pass books.
4.4. Aggrieved by the order of the RDO in Proceedings
orders dated 06.01.2006. It was contended that claim of respondent No.5 is
5.1. The aforesaid contentions of respondent No.5 and legal heirs of
5.2. Respondent No.3 observed that Section 40 of the Tenancy Act
Rules made thereunder and referred to Section 4 of the ROR Act 1971.
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5.3. Relevant findings recorded by respondent No.3 in the impugned
order on the aforesaid point are extracted hereunder for convenience sake.
In effect, the Revenue authorities can take cognizance of
acquisition of rights if the same is intimated within a prescribed time-
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frame from the date of acquisition. Immediately upon receipt of
intimation of acquisition of rights the Revenue authorities can conduct
a summary enquiry and if there are no serious disputes, then, can order
incorporation of names of successors in the Revenue records.
If succession is sought after a long-time from the date of
demise of the right-holder, then it is beyond the competence of
Revenue authorities to take cognizance of such succession for the
reason that with the lapse of time, third party interests might have
emerged on the scene or disputes in relation to rights of succession
might have arisen with the advent of second generation. As such, it is
difficult to determine the Legal heirs of the original right-holder.
As a result, recognition of rights of succession will not be
amenable to a summary enquiry conducted by Revenue authorities.
The issue would assume a complex dimension requiring a
comprehensive adjudication by a Civil Court. In short, claim for
succession to Protected Tenancy after a long distance of time from the
date of demise of the original Protected Tenant cannot be entertained
by Revenue authorities in exercise of the powers U/s 40 of the Act.
The issue assumes a Civil nature with lapse of time and has to be
adjudicated by a Civil Court."
5.4. Respondent No.3 further referred to the judgment of the
erstwhile High Court of Andhra Pradesh in Syed Abdul Majeed @ Miya
Pasha v. Joint Collector-II 1, wherein it was held that the Tahsildar has no
power to decide the question of succession to the protected tenancy and the
(2006 (5) ALD 348)
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parties have to approach the Civil Court for declaring themselves as legal
heirs of the protected tenants. Finally, it was concluded by respondent
No.3 in the impugned order that the Tahsildar is not competent to grant
succession in exercise of powers conferred under Section 40 of the
Tenancy Act and accordingly set aside the orders in Case No.A/1139/1997
dated 04.11.1997 under Section 40 of the Tenancy Act and the
consequential order in Case No.A/1138/1997 dated 25.08.2024 under
Section 32(1) of the Tenancy Act.
6. It appears from the record, subsequently, respondent No.5 through
her General Power of Attorney Holder Mr. T. Mallikarjuna Reddy filed
application dated 16.12.2017 before respondent No.4 for correction of
records in respect of the subject land admeasuring Acs.2-28 guntas in
Survey No.692/1/A and an extent of Ac.0-24 guntas in Survey
No.692/1/AA and for issuance of pattadar pass books and title deeds.
By the Proceedings No.B/637/2018 dated 11.02.2019, respondent No.4
passed orders deleting the name of the previous owners viz.,
Mrs. D. Vasanthi alias Seema, wife of Mr. Ramesh Kumar and
Mrs. S. Sreedevi, wife of Mr. Krishna, and restoring the name of
respondent No.5 as owner of the subject lands.
BVRJ,
7. Respondent No.5 instituted a suit for perpetual injunction in
O.S. No.64 of 2019 in the Court of the learned Junior Civil Judge,
Chevella, in respect of the subject land admeasuring Acs.3-12 guntas in
Survey No.692 of Janwada village against the petitioners, wherein interim
injunction order was passed directing the petitioners not to alienate the
subject land.
8. It is the case of the petitioners that they are subsequent purchasers
from Mrs. D. Vasanti alias Seema, wife of Mr. Ramesh Kumar and
Mrs. S. Sreedevi, wife of Mr. Krishna. Petitioner No.1 purchased an extent
of Ac.0-32 guntas of land out of Acs.2-28 guntas in Survey No.692/1/A
from Mrs. D. Vasanthi and an extent of Ac.0-07 guntas of land out of
Ac.0-24 guntas in Survey No.692 from Mrs. S. Sreedevi, total admeasuring
Ac.0-39 guntas, under the registered sale deed bearing document
No.7252/2016 dated 16.07.2016; similarly, petitioner No.2 purchased an
extent of Ac.1-36 guntas of land in Survey No.692/1/A from
Mrs. D. Vasanthi and an extent of Ac.0-17 guntas in Survey No.692 from
Mrs. S. Sreedevi, total admeasuring Acs.2-13 guntas, under the registered
sale deed bearing document No.7253/2016 dated 16.07.2016.
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9. It was contended that the petitioners were not issued notices in the
Proceedings No.B/637/2018 wherein the order dated 11.02.2019 was
passed deleting the names of the previous owners / vendors of the
petitioners and restored the name of respondent No.5 in the revenue records
in respect of the subject lands.
10. It is submitted that respondent No.5 has filed the application
dated 16.02.2017 for implementation of the order dated 28.03.2008 passed
by respondent No.3 with full knowledge that the petitioners have purchased
the subject lands, and thus, respondent No.5 has obtained such order behind
the back of the petitioners. The petitioners came to know about the
impugned proceedings only when they received summons in O.S. No.64 of
2019. Thus, there is no delay on their part. The appeals preferred by
respondent No.5 are not maintainable. A separate application under
Section 5 of the Limitation Act 1963 was not filed by respondent No.5
before respondent No.3 in the impugned appeal proceedings filed under
Section 90 of the Tenancy Act.
11. It is submitted that under Section 93 of the Tenancy Act, appeal
has to be preferred within sixty (60) days from the date of the order passed
under Section 32 of the Tenancy Act by the Tahsildar. Appeal was
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preferred by respondent No.5 before respondent No.3 on 12.08.2005 which
is after a lapse of 375 days of the order of respondent No.3. Instead of
filing condone delay application, respondent No.5 vaguely sought delay
condonation in the main prayer in the appeals in Case Nos.F2/3787/2005
and F2/3788/2005 against the order of the Tahsildar in Proceedings
No.A/1139/1997 dated 04.11.1997 and Proceedings No.A/1138/1997 dated
25.08.2004.
12. Heard Mr. Hemendranath Reddy, learned senior counsel,
appearing for Mr. Sannapaneni Lohit, learned counsel for the petitioners;
learned Government Pleader for Revenue for respondent Nos.1 to 4; and
Mr. Goverdhan Venu, learned counsel for respondent No.5; and perused
the material on record.
13.1. The learned senior counsel appearing for the petitioners
submitted that the impugned proceedings are null and void and liable to be
set aside. Respondent No.5 was not a party to the Proceedings in Case
No.A/1138/1997 under Section 32(1) of the Tenancy Act 1950 and the
Proceedings No.A/1139/1997 dated 04.11.1997 under Section 40 of the
Tenancy Act 1950. Further, respondent No.5 is a party to the Proceedings
No.L/2325/2004 dated 28.12.2004 where she was arrayed as respondent
BVRJ,
No.2 and the original landlord as respondent No.1. The appeal preferred by
respondent No.5 challenging the order under Section 38(6) of the Tenancy
Act dated 28.12.2004 before respondent No.3 vide Case No.F2/2472/2005
was dismissed for default on 06.01.2006. Respondent No.3 having
knowledge about the order dated 06.01.2006 and having referred the same
in the impugned order, did not give any finding as to validity of the
Tenancy Certificate issued under Section 38(6) of the Tenancy Act.
13.2. It is further submitted by the learned senior counsel appearing
for the petitioners that the petitioners are subsequent purchasers and are not
parties to the impugned proceedings. Moreover, respondent No.5 was not a
party to the proceedings in Case No.A/1138/1997 under Section 32(1) of
the Tenancy Act and the Proceedings No.A/1139/1997 dated 04.11.1997
under Section 40 of the Tenancy Act 1950. As the matter became
complicated due to inconsistent orders and wrong application of law, the
impugned orders may be set aside and the matter may be remanded to
respondent No.3 for fresh consideration and disposal in accordance with
law.
14.1. The learned counsel for respondent No.5 submitted that the
petitioners do not have any locus standi to challenge the impugned
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proceedings. The petitioners are subsequent purchasers. Their vendors
have not challenged the impugned proceedings. Respondent No.4 was not
informed about the sale of subject lands in favour of the petitioners.
The petitioners were not parties to any of the earlier legal proceedings.
Oral surrender of protected tenancy rights was valid prior to 1954 as held in
catena of decisions. Names of Mr. Potti Lingaiah and Mr. Talari
Lakshmaiah were not found anywhere in the revenue records. From 1951
till now, no protected tenancy entry is made. Revenue records of 1951 to
1985 were verified and pattedar pass books were issued to respondent
No.5. It is not known whether the original owner Mr. Jagannath Reddy is
alive or not and is survived by legal heirs. As per the decision of the
erstwhile High Court of Andhra Pradesh in Abdul Majeed @ Miya
Pasha's case (Supra 1), succession rights to the protected tenancy have to
be decided by Civil Court. There are no details of death of Mr. Potti
Lingaiah. There is a serious dispute with regard to title and only Civil
Court can decide the title. As fraud is played by the vendors of the
petitioners, the question of limitation in the impugned proceedings does not
arise. The dismissal of appeal for default in Proceedings No.F2/2472/2005
dated 06.01.2006 will not have any bearing on the patta and possession,
and that the principle of res judicata is not applicable.
BVRJ,
15. Though several decisions have been referred to, in the opinion of
this Court, the same are not applicable to the peculiar facts and
circumstances of this case. It emerges from the above discussion and
background of facts that title of respondent No.5 is traceable to original
landlord Mr. Jagannath Reddy; whereas the title of the petitioners is
traceable to legal heirs of the protected tenants who were issued Tenancy
Certificate under Section 38(6) of the Tenancy Act dated 31.12.2004.
Earlier to that the Proceedings in Case No.A/1138/1997 dated 25.08.2004
under Section 32(1) of the Tenancy Act 1950 and the Proceedings in Case
No.A/1139/1997 dated 04.11.1997 under Section 40 of the Tenancy Act
1950 were issued in favour of the legal heirs of the protected tenants.
16. Appeal in Case No.F2/2472/2005 preferred by respondent No.5
before respondent No.3 challenging the Tenancy Certificate under Section
38(6) of the Tenancy Act was dismissed for default on 06.01.2006. Appeal
Nos.F2/3787/2005 and F2/3788/2005 preferred by respondent No.5
challenging the orders passed under Sections 40 and 32(1) of the Tenancy
Act in Proceedings Nos.A/1139/1997 dated 04.11.1997 and A/1138/1997
dated 25.08.2004 were allowed by the impugned order dated 28.03.2008.
Thereafter, the consequential order in Proceedings No.B/637/2018 dated
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11.02.2019 was passed by respondent No.4 by implementing the order
dated 28.03.2008 passed by respondent No.3.
DISCUSSION AND ANALYSIS :
17. The Tenancy Act is a beneficial legislation and is a social
enactment made for protecting interests of the tenants / tenure holders.
It is a special statute and is a self-contained Code. Recording names of the
protected tenants in the Final Protected Tenancy Register (Sections 34 and
35), succession of protected tenancy rights (Section 40), restoration of
possession of lands by the protected tenants (Section 32), surrender of
possession by the protected tenants (Section 19), and issue of ownership
certificate (Section 38) have to be made strictly in accordance with the
Tenancy Act since it is a special statute. Whereas the ROR Act deals with
correction / updation of revenue records, issuance of succession / mutation,
pattedar pass books and title deeds. The impugned order dated 28.03.2008
passed by respondent No.3 is erroneous and suffers from jurisdictional
error. No doubt, it was held by the Hon'ble Supreme Court in Ponnala
Narsing Rao v. Nallolla Pantaiah2 that even if limitation is not prescribed
under the Tenancy Act, the parties have to approach the authorities
concerned within a reasonable time for claiming restoration of possession
(1998) 9 SCC 183
BVRJ,
under Section 32 of the Tenancy Act. But, the impugned order of
respondent No.3 drawing analogy of limitation under Section 4 of the ROR
Act is not only improper but incorrect as well. Respondent No.5 purchased
the subject land in 2001. She is not a party to the proceedings in Case
No.A/1138/1997 dated 25.08.2004 under Section 32(1) of the Tenancy Act
1950 and the Proceedings No.A/1139/1997 dated 04.11.1997 under Section
40 of the Tenancy Act 1950. The appeal preferred by respondent No.5
before respondent No.3 challenging the proceedings under Section 38(6) of
the Act was dismissed for default on 06.01.2006.
18. It was incumbent upon respondent No.3 to decide as to whether
the proceedings under Sections 40 and 32(1) of the Tenancy Act in Case
Nos.A/1139/1997 dated 04.11.1997 and A/1138/1997 dated 25.08.2004
have merged in the Proceedings No.L/2325/2004 dated 28.12.2004 under
Section 38(6) of the Tenancy Act, and when the appeal challenging the
proceedings under Section 38(6) of the Tenancy Act came to be dismissed
for default by the order dated 06.01.2006, whether the appeals preferred
challenging the orders passed under Sections 32(1) and 40 of the Tenancy
Act are maintainable?
BVRJ,
19. The contention raised by the petitioners that the appeals in
Case Nos.F2/3787/2005 and F2/3788/2005 were preferred without an
application for condonation of delay also needs to be addressed. Not only
that respondent No.5 was not a party to the proceedings in Case
No.A/1138/1997 under Section 32(1) of the Tenancy Act and the
Proceedings No.A/1139/1997 dated 04.11.1997 under Section 40 of the
Tenancy Act, and the appeals were preferred with a delay of 375 days and
without an application for condonation of delay; even when statutory time
prescribed for preferring appeal is sixty (60) days as per Section 93 of the
Tenancy Act. Thus, in any probability, for condonation of delay, an
application ought to have been filed by respondent No.5 in the impugned
appeal proceedings.
20. A Division Bench of this Court in Cyrus Investments Limited
v. Joint Collector, Ranga Reddy District3 (W.A. No.408 of 2011 and
batch dated 10.07.2024) clarified the principle laid down in Syed Abdul
Majeed @ Miya Pasha's case (Supra 1), holding that only if there is
dispute regarding legal heirship, the parties have to be relegated to the Civil
Court, otherwise, it is within the jurisdiction of the Tahsildar to grant
CDJ 2024 TSHC 248
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succession under Section 40 of the Tenancy Act. On this Count also, the
impugned order is liable to be set aside.
21. In Kommineni Haribabu v. Tahsildar, Chandragiri Mandal,
Chittoor District 4, the erstwhile High Court of Andhra Pradesh held that
revenue forums cannot dismiss the matters for default. The learned Judge
referred to the powers vested with the recording authority or appellate
authority under Section 10 of the ROR Act 1971 and Rule 28 of the ROR
Rules 1989 which are vested in the Civil Court by the Code of Civil
Procedure 1908 for conducting enquiry, for entering upon and inspecting
the land etc. Section 10 of the ROR Act 1971 read with Section 28 of the
ROR Rules 1989 is in pari materia with Section 89(2) of the Tenancy Act.
Thus, in the opinion of this Court, the principle of law laid down in
Kommineni Haribabu's case (Supra 4) is applicable to the proceedings
under the Tenancy Act also. Thus, the order of dismissal for default dated
06.01.2006 is void. Even otherwise, a peculiar situation has arisen in the
instant case that if this Court sets aside the impugned proceedings of
succession and recovery of possession (Sections 40 and 32) and does not
interfere with the order of dismissal dated 06.01.2006 in respect of the
ownership certificate (Section 38(6)), it will be a fait accompli.
2013 SCC OnLine AP 207 : (2014) 1 ALD 304 : (2014) 3 ALT 674
BVRJ,
Further, it will not only lead to confusion, but the order of dismissal dated
06.01.2006 will always stare at respondent No.5. The impugned
proceedings related to the order dated 28.03.2008 and that the proceedings
related to the order of dismissal for default dated 06.01.2006 are inter
connected and no serious prejudice would be caused to the petitioners and
their vendors (legal heirs of the protected tenants) if the order of dismissal
for default dated 06.01.2006 is set aside though the same is not a subject
matter of this writ petition. It is settled principle of law that this Court in
exercise of jurisdiction under Article 226 of the Constitution of India,
has power / discretion to mould the relief for rendering substantial justice
as held in M.S. Sanjay v. Indian Bank 5 (paragraph 10), Indian Railway
Construction Co. Ltd., New Delhi v. S. Govindaiah6 (paragraph 6), and
Managing Director, Indian Immunological Ltd. V. Narendra Agrwal 7
(paragraph 11). Hence, the order of dismissal dated 06.01.2006 is liable to
be set aside.
22. It is the case of the petitioners that they came to know about the
impugned proceedings only when they received summons in O.S. No.64 of
2019 and then the writ petition has been filed. The petitioners, who are
2025 SC OnLine SC 368
2002 (1) ALD 770
2021 (4) ALD 480
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subsequent purchasers, are persons interested. Hence, in the opinion of this
Court, though there is a delay of several years in challenging the impugned
proceedings, as there is gross irregularity and illegality committed by
respondent Nos.3 and 4 in passing the impugned order, the writ petition is
not hit by the doctrine of latches.
23. For the aforesaid reasons, the writ petition is allowed and the
impugned common order dated 28.03.2008 in Case Nos.F2/3787/2005 and
F2/3788/2005 passed by respondent No.3 - the Joint Collector-II, Ranga
Reddy District, and the consequential order dated 11.02.2019 in
Proceedings No.B/637/2018 passed by respondent No.4 - the Tahsildar,
Shankarpally Mandal, Ranga Reddy District, and also the order of
dismissal for default dated 06.01.2006 in Case No.F2/2472/2005 passed by
respondent No.3 are set aside, and all the appeals stand restored to their
original file for disposal afresh on merits in accordance with law.
Respondent No.3 is directed to conduct joint enquiry by issuing notice to
both sides and all interested persons and also by giving opportunity of
hearing to them within a period of three (3) months from the date of receipt
of a copy of this order. It is made clear that this order is passed in view of
the legal and procedural lapses committed by respondent No.3 in the
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impugned order, as such, observations, if any, made in this order shall not
be construed as expression of opinion on merits and order/s afresh shall be
passed uninfluenced by the same. Further, the party concerned may
approach respondent No.4 - Tahsildar for mutation and pattdar pass books
subject to outcome of the appeals before respondent No.3. No order as to
costs.
As a sequel thereto, miscellaneous applications, if any, pending in
the writ petition stand closed.
______________________
B. VIJAYSEN REDDY, J
Date: May 28, 2025.
NOTE:
1) LR copy to be marked.
2) After dispatch of the order, please send the file to the concerned Court Master for marking LR copy.
(BO) PV
