B.Malla Reddy VsState Of Telangana

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.

Heard Sri L.Harish, learned counsel for the petitioners, learned Special Government Pleader, office of the learned Advocate General for the

Respondents.

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, acknowledged by the office of the District

Collector on 17.05.2021.

Alleging inaction, this writ petition is filed.

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.

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 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.

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.

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.

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 Joint Collector-II, Ranga Reddy District and others 2006 (5) ALD 348 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.

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.

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.

To consider the issue, it is necessary to look into the provisions of Sections 40 and 99 of the Act, 1950. Section 40 of 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.

(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

(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.

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.

In Syed Abdul Majeed (supra), this Court considered the scope of Section 40 of the Act, 1950. Learned single Judge held as under:

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.

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.

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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.

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.â€​

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 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.

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 created, petitioners have to first assert their right to succeed to tenancy of their ancestors on the subject lands

by availing the civil law remedy, if so available. Until and unless the Civil Court grants the declaration holding that petitioners are entitled to succeed to

the tenancy rights on land, hitherto, standing in the name of protected tenant, they cannot go to the next stage. The Writ Petitions are misconceived.

They are accordingly dismissed, leaving it open to the petitioners to work out civil law remedy, subject to law of limitation. Pending miscellaneous

applications, if any pending, stand closed.