Smt. Ashraf Unnisa and Others vs K. Lakshmaiah (died) and Others

G. Yethirajulu, J.—The petitioners in both the revisions are the landholders and the respondents are the heirs of Kotla Laxmaiah, a Protected Tenant claiming permanent tenancy through him.

The revision petitioners and two others by name Abdul Hameed and Abdul Wajid filed an application u/s 28(2) of Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for brevity ''the Act'') before the Tahsildar, Ibrahimpatnam on 30-12-1972 bearing file No.C3/557/73 for recovery of arrears of rent against the protected tenant Kotla Laxmaiah for the years 1969 to 1972 in respect of Survey Nos.19, 26, 27, 28, 29, 31/A, 32, 37, 38, 39, 40, 67, 73 and 74 situated in Manchal village. They also filed another petition on 30-12-1972 before the Tahsildar u/s 19(2)(a)(i) of the Act for eviction of the protected tenant bearing file No.C3/558/73. Subsequently, on 30-12-1974 they filed another petition along with a statement of arrears of rent requesting for handing over possession of the lands as the tenancy rights of the protected tenant have been terminated. The extent of the land covered by the above Survey Numbers is Ac.66.9 guntas, which was previously held by one Smt.Fathima Begum, wife of Mir Khasim as a pattedar. On her expiry the lands were mutated in the name of the petitioners in the year 1970-71, and they are the landholders.

As per the protected tenancy register Sri Kotla Laxmaiah was the protected tenant. The petitioners contended that the tenant failed to pay the rent for the above lands at the rate of 96 munds of paddy and Rs.220/- per acre from 1969 to 1972. Hence, the petition for recovery of rent.

During the course of enquiry before the Tahsildar, Ibrahimpatnam, the petitioners produced certified extract of Faisal patti of 1970-71 indicating the succession in their favour. They also filed Exs.A-1 to A-3 copies of the relevant entries of tenancy register showing Sri Kotla Laxmaiah as the protected tenant. It was also contended by the petitioners that the protected tenant is not entitled to let the lands on sub-lease to other persons and it amounts to violation of the terms and conditions enunciated in the Act. Since the protected tenant failed to pay the rent for a continuous period of more than 3 years, the petitioners terminated the tenancy. Therefore, they are entitled for restoration of possession of the lands by evicting the protected tenant.

When notice was served on Sri Kotla Laxmaiah in the said petition, he did not evince any interest either by appearing before the Tahsildar or by producing necessary documents to disprove the contentions raised by the petitioners. The Tahsildar, Ibrahimpatnam therefore, set Sri Kotla Laxmaiah ex parte and allowed the petition by holding that the petitioners are eligible for recovery of arrears of rent for the period not exceeding 3 years. The Tahsildar while observing that the rent claimed by the petitioners is not inconformity with the rate fixed in the tenancy record, directed payment of rent of 48 munds of grain and Rs.110/- in cash per annum, with arrears for 3 preceding years from the date of application.

Regarding the eviction of the protected tenant, the Tahsildar observed that there was no request in the petition for eviction of the tenant, except a reference made in a subsequent petition dated 30-12-1974 and as there was no proof placed by the petitioners, showing that they served 6 months notice to the protected tenant prior to the filing of the petition as required u/s 19 of the Act, the request for eviction of the protected tenant cannot be entertained.

The above order was passed by the Tahsildar on 25-03-1976. Subsequently, the Tahsildar passed another order on 23-05-1979 in file No.C3/558/73 observing that the petitioners served 6 months notice on the protected tenant, and the rent is recoverable from the protected tenant. The tenancy of the protected tenant was terminated on the ground that he sublet the lands to others and on other grounds. The Tahsildar ordered eviction of the tenant and subtenants by holding that the lease was terminated and that the petitioners are entitled for recovery of possession.

Against the order of eviction in Case No.C3/558/73 dated 23-05-1979 the successors of Kotla Laxmaiah, who are the respondents herein filed an appeal before the Joint Collector, Ranga Reddy District. The Joint Collector, Ranga Reddy District in appeal No. B4/9691/79 passed an order dated 5-1-1988 setting aside the order of the Tahsildar, Ibrahimpatnam remanding the case to the Tahsildar for de nova enquiry, after giving opportunity to all the parties. After remand of the case, it was assigned file No.A/202/87. The Tahsildar conducted de nova enquiry and passed orders on 18-10-1993 observing that the petitioners are entitled to the land situated in S.No.19, 25, 31/A, 32, 40, 67 and 73, and the lands bearing Survey Numbers 27, 29, 30, 37, 38 and 39 belong to the Respondents, who purchased them from late Bismillah Begum, the owner of those lands and original pattedar by virtue of a decree in O.S.No.21/2/1958 on the file of the District Munsif, Ibrahimpatnam. The Tahsildar ordered eviction of the respondents in respect of the lands relating to petitioners who got those lands from Fathima Begum and dismissed the petition in respect of remaining lands.

Aggrieved by the order of the Tahsildar, Ibrahimpatnam dated 18-10-1993, the petitioners filed appeal bearing No.F2/8054/1993 and the respondents filed appeal bearing No.F2/189/94 on the file of the Joint Collector, Ranga Reddy District. The Joint Collector after hearing both parties passed a common order dated 26-07-1999 setting aside the order of the M.R.O. dated 18-10-1993 which was passed in file No.A/202/1987 ordering restoration of possession of Survey Numbers 19, 26, 31/A, 32, 40, 67, 73 and 74 to the revision petitioners. The Joint Collector further directed to restore physical possession of those lands to the respondents whereas the landholders continue to be the pattedars of the above lands. The Joint Collector further directed to fix the fair rent u/s 17 of the Act in respect of the lands considered in favour of the revision petitioners.

The landholders being aggrieved by the common order of the Joint Collector preferred these revision petitions questioning its validity and illegality.

The point for consideration is:

"Whether the order of the Joint Collector dated 26-07-1999 holding that the respondents are not liable to be evicted and they are liable only to pay rent to the petitioners, is liable to be set aside?"

POINT:

The revision petitioners are landholders. They filed one application for recovery of rent and another application for eviction of the respondents on the ground that the lease in their favour stood terminated in view of a notice u/s 19 of the Act issued on 26-04-1972. The revision petitioners in the said notice mentioned three grounds for termination of tenancy viz.,

1) default in payment of rent;

2) subletting of lands by the first respondent to other respondents;

3) committing acts of waste by cutting trees etc.,

Therefore, they are entitled for recovery of possession of lands by evicting the tenants.

The respondents contended that the first respondent Kotla Laxmaiah was the permanent tenant of the lands and head of the joint family. The respondents 2 to 4 are the brothers of the first respondent. They used to jointly cultivate the lands along with the first respondent who was recognized as a permanent tenant of the lands. Since they were jointly cultivating the lands along with the first respondent, the question of the first respondent subletting those lands to respondents 2 to 4 does not arise. By virtue of the compromise decree in O.S.No.21/02/1958 of the District Munsif Court, Ibrahimpatnam, a lady by name Bismillah Begum is entitled to some of the lands and became a pattedar for those lands and the mutation in the revenue records was also effected in pursuance of the decree and judgment of the said suit. They never committed default in payment of the rent. There was no waste or damage caused by them to the lands. Therefore, they are not liable to be evicted from the lands and the petitions for eviction and recovery of rent are liable to be dismissed.

The Mandal Revenue Officer in his order dated 18-10-1993 mentioned that the revision petitioners are entitled to evict the respondents from the lands situated in S.No.19, 26,31/A, 32, 40, 67, 73 and 74. Subsequent, to the date of the order of the M.R.O. the order was executed on 9-11-1993 under a Panchanama and the lands of an extent of 26-16 guntas, was delivered to the petitioners and they are in possession of the same.

The revision petitioners contended that the respondents, under the guise of tenancy are claiming the land but they ceased to hold the land by allowing the sub tenants to enjoy the same. The respondents 5 to 8 who are the legal heirs of the deceased first respondent have given up cultivation and they are engaged in other avocations. The revision petitioners further contended that the plea of a decree in O.S.No.21/2/1958 is also concocted and time barred being not implemented. The plea of purchase of the land from Smt.Fathima Begum is also false.

As per the tenancy register of Manchal village, the first respondent was the protected tenant over the land situated in Survey Numbers 19, 26, 27, 28, 29, 31/A, 37, 38, 39, 40, 67, 73 and 74 situated at Manchal village and one Bhoopal Reddy is the protected tenant over S.No.31/A. The name of Smt.Fathima Begum is shown as landholder for all the above lands. It is evident from the Faisal patti that after demise of Fathima Begum the succession has been granted in favour of the revision petitioners who are the sons and daughters of Fathima Begum and they were recognized as landholders. It is an undisputed fact that the respondents 2 to 4 are the younger brothers of the first respondent Kotla Laxmaiah. The Joint Collector while considering the plea of sublease mentioned that the respondents 2 to 4 have been cultivating the land along with their elder brother Kotla Laxmaiah, who was Kartha of the Joint Family and they have got equal shares along with the first respondent. This is not opposed by the respondents 5 to 8. Hence, respondents 2 to 4 are deemed to be joint tenants irrespective of the fact that the names of joint tenants have not appeared in the tenancy record. Therefore, the cultivation of the land by respondents 2 to 4 does not mean, that they were cultivating the land as sub-tenants.

Regarding the right of Smt.Bismillah Begum over some of the lands, the Joint Collector observed that on verification of the decree of the District Munsif Court, Ibrahimpatnam in O.S.No.21/2/1958, Smt.Bismillah Begum became the owner of the lands situated in S.No.27, 29, 30, 37, 38 and 39. Smt.Bismillah Begum filed the suit against Fathima Begum, Mankal Bhoopal Reddy and the first respondent. There was a compromise between the parties and in pursuance of the said compromise the suit was decreed on 30-6-1958. As per the terms of the compromise the lands in S.No.27, 29, 30, 37, 38 and 39 went to the share and possession of Bismillah Begum. The lands in S.No.32 and 28 have been kept joint and Bismillah Begum was also given 1/3rd share i.e., 15 guntas in S.No.66.

It was noticed by the Joint Collector that Smt.Bismillah Begum executed an agreement of sale on 2-2-1957, prior to the decree, in respect of her share of properties in favour of the first respondent. The revision petitioners contended that since the agreement of sale was executed by Smt.Bismillah Begum in 1957 and as the decree in the civil suit is time barred, there is no decree in force in favour of Bismillah Begum.

In the decree of the Civil Court, there is an averment that Smt.Bismillah Begum is the real sister of Smt.Fathima Begum and the schedule lands are the ancestral lands of both of them. Hence, the share of Bismillah Begum to the extent of 1/3rd share as per mutual settlement cannot be denied.

As per the extract of the pahani for the year 1970-71, most of the lands are shown as joint in the names of these two ladies. The Civil Court decree was not challenged either by Smt.Fathima Begum or her successors. Since it was a compromise decree, there is no scope for either of the parties to say that they were not given sufficient opportunity to contest the suit. Therefore, they cannot question the validity of the decree, after such a long time.

The respondents contended that Smt.Fathima Begum sold an extent of Ac.7-03 guntas situated in S.No.19 in favour of the first respondent in the year 1958. Since the revision petitioners are the successors of Fathima Begum, the sales affected by Fathima Begum are binding on them.

Regarding the termination of the tenancy, the landholders are empowered to terminate the tenancy u/s 19 for nonpayment of rent by giving six months notice in writing, intimating his decision to terminate the tenancy and the ground for such termination. The notice of termination was issued by the petitioners on 26-04-1972 by raising the grounds of nonpayment of rent, causing waste and damage to the land by cutting the trees and subletting the lands to others. The notice was acknowledged by the first respondent and others either by accepting the same or refusing to receive the same. After expiry of six months, the revision petitioners filed an application u/s 28 on 29-12-1972 for recovery of arrears of rent and another application on 3-12-1974 for recovery of possession. They also filed another application u/s 19 for eviction of the respondents and also filed an application u/s 32 on 30-12-1974 for restoration of possession of the schedule lands to them.

The Joint Collector observed that after termination of tenancy, if the landholder files an application for ejectment, the Tahasildar has to give an opportunity to the tenant to pay the arrears of rent within 90 days, if the tenant fails to comply with such direction, it may be open to the Tahsildar to order ejectment of the tenant. The Joint Collector further observed that the M.R.O. did not fix any fair rent and no opportunity was given to the tenants for payment of rent, hence, the question of termination of tenancy does not arise and the order of eviction passed by the M.R.O. is not valid under law. The Joint Collector further observed that the protected tenants are in continuous possession of the schedule lands, in view of the purchase of lands from Fathima Begum and Bismillah Begum and their longstanding possession, the respondents became absolute owners of Ac.4-03 gts. in Sy.No.19, Ac.0-37 gts., in Sy.No.27, Ac.1-10 gts. in Sy.No.29, Ac.1-12 gts in Sy.No.32, Ac.7-26 gts. in Sy.No.37, Ac.14-25 gts in Sy.No.38, Ac.9-33 gts. in Sy.No.39 Situated at Manchal village.

Protected tenant is defined u/s 34 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950.

Section 38 of the Act provided a right of the protected tenant to purchase the land. u/s 38 a Protected Tenant who desires to purchase the land shall make an offer to the landholder stating the price, which he is prepared to pay for the landholder''s interest in the land up to fifteen times the rent payable by him for dry lands or eight times for wet lands irrigated by wells and six times of the rent for wet lands irrigated by other sources. If the landholder refuses or fails to accept the offer and to execute a sale deed within three months from the date of the offer, the protected tenant may apply to the Tribunal for the determination of the reasonable price of the land. On receipt of an application, the Tribunal shall give notice to the applicant and the landholder and to all persons who appear to the Tribunal to be interested, fixing the time and place for enquiry and determine the reasonable price of the landholder''s interests in the land as per the rates fixed under the Section. After determination of the price, the protected tenant shall deposit the amount either in lumpsum or in instalments. After deposit of the said amount the Tribunal shall issue a certificate in the prescribed form to the protected tenant declaring him to be the purchaser of the land and such certificate shall be conclusive evidence of the sale as against the landholder and all persons interested therein.

Section 38-A mentions about the procedure when there was an agreement between the landholder and the protected tenant regarding the price of the land. According to this Section in respect of the land held by a protected tenant, the landholder consents to sell his interest in the land to the protected tenant and the reasonable price payable therefore by the protected tenant is agreed to between them either of the parties or both may apply to the Tribunal and the Tribunal will issue a certificate declaring the protected tenant to be the purchaser of the land.

Section 38-D provided the procedure when the landholder intends to sell to a protected tenant. According to this Section, if the landholder at any time intends to sell the land held by the protected tenant, he shall give a notice in writing of his intention to such protected tenant and offer to sell the land to him. In case the protected tenant intends to purchase the land he shall intimate in writing his readiness to do so within six months, from the date of receipt of such notice. If the protected tenant does not exercise the right of purchase in response to the notice, the protected tenant shall forfeit his right of purchase of the same and the landholder shall be entitled to sell such land to any other person.

Section 38-E mentioned about the transfer of ownership in favour of the protected tenants in respect of the lands held by them from a notified date. According to this Section, the Government may declare that the ownership of all the lands held by protected tenants which they are entitled to purchase shall stand transferred to and vest in the protected tenants holding them and from such date the protected tenant shall be deemed to be the true owners of such lands.

According to Section 40, the rights of the protected tenants are heritable. According to this Section 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, not withstanding anything contained in this Act, sub-divide inter se according to their shares the land comprised in the tenancy to which they have succeeded.

Section 44 deals with the landholders right to terminate protected tenancy.

The above provisions of the Act make the position clear that whenever there is a proposal either by the landholder or by the protected tenant for purchase of the land, it has to be reported to the concerned Tribunal and after following the procedure prescribed under the Act and on payment of the amount as per the agreement between the parties or as per the rates fixed under the Act the Tribunal will issue a certificate of ownership to the protected tenant to enable him to enjoy the property with absolute rights.

In this case the respondents are contending that Fathima Begum executed an agreement of sale in favour of the first respondent for the alienation of the property and Bismillah Begum also executed another agreement of sale in their favour in respect of her share of properties and in pursuance of those documents also they are in possession and enjoyment of the property as absolute owners.

Section 50-B of the Act provides for validation of certain alienations and other transfers of agricultural lands. As per this Section where there is any alienation or transfer of agricultural land on or after 10-06-1950 and where possession of such land was given to the alienee or transferee and when the transfer of the land is not inconsistent with the provisions of the A.P. Land Ceiling on Agricultural Holdings Act, 1961 and before the commencement of A.P. (Telangana Area) Tenancy and Agricultural Lands (third Amendment) Act, 1969, the alienee or transferee may within such period as may be prescribed apply to the Tahsildar for a certificate declaring that such alienation or transfer is valid. On receipt of such application, the Tahsildar after following the procedure shall issue a certificate declaring that the alienation or transfer is valid and such certificate is conclusive evidence of such alienation.

The learned counsel for the respondents relied on a judgment of this High Court in MODEM RAJAMOULI V. MODEM ROSHAIAH AND OTHERS, wherein C.V.N.Sastri, J., while dealing with Section 47 and 50-B of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 held as under:

"Though Section 47 was deleted, the several transfers which were taken place from 1950 to 1969 could be validated with the aid of proceedings u/s ` and thereby the invalidity could be cured. Section 50-B was introduced with a definite purpose to save the invalid transactions that have taken place between June 10, 1950 to March 18, 1969 and the time was extended finally upto March 31, 1972. If the transferee or alienee did not avail himself of this opportunity of getting his alienation and possession validated u/s 50-B, he should suffer the consequences, since the transfer and delivery of possession remained invalid and unlawful after March 31, 1972. There is no possibility of validating all the invalid transactions that took place preceding that date. The contract of sale and the unauthorized and illegal possession of the land are null and void and the protection of Section 53A of the T.P. Act is not available."

In K.RAJIREDDY V. K.SUSIL BHAI, it was held that in the absence of permission u/s 47 and in the absence of validation certificate u/s 50-B the infirmity of an invalid transaction subsists and continues. In view of deletion of Section 50-B from 1972 there is no possibility of getting over the invalidity and hence, the gift deed is void and unenforceable.

In USHANNA V. SAMBU GOUD, it was held that the need to obtain previous sanction u/s 47 from the Tahsildar for permanent alienation is mandatory and any permanent alienation or other transfer in contravention thereof, unless it is duly validated by operation of Section 50-B of the Act, is null and void. It is also held that this position of law is no longer res integra. Referring to the policy decision of this Court in Syed Jalal V. Targopal4, wherein it was held that there is no prohibition under law to enter into an agreement but before a sale deed is executed, it is mandatory to obtain the sanction of the Tahsildar as required u/s 47 of the Act. It was observed that the transfer without permission of the Tahsildar is invalid and possession delivered thereunder would be deemed to be unauthorized or wrongful.

In MERAM POCHAM AND ANOTHER V. AGENT TO THE STATE GOVERNMENT, a Division Bench of this Court exhaustively considered the legislative history, the object of amendment and the consequential legal effect of opinion, validation of permanent alienation or other alienation made without obtaining the prior permission of the Tahsildar. In the said judgment, the Division Bench also considered the question whether possession obtained under such invalidated transfers can be protected u/s 53A of the Transfer of Property Act. The Division Bench further held that though Section 47 of the Act was deleted, the transfers, which were taken place from 1950 to 1969 could be validated with the aid of the proceedings u/s 50-B of the Act and thereby the invalidity could be cured.

In the light of the provisions of the Act and the above decisions, it is clear that unless the sale is validated by the Tahsildar before 31-03-1972 it cannot be treated as a valid transaction of alienation or transfer.

In the present case there is no material to show whether the Tahsildar issued any certificate validating the transfer during the relevant period. In the absence of such material, it has to be held that the respondents are entitled to continue in possession of the property as protected tenants only and not as the owners of the said property. The finding of the Joint Collector that the protected tenants are absolute owners of the land, cannot sustain.

The revision petitioners terminated the tenancy on the ground that there was default in payment of rent. The Joint Collector observed in the impugned order that after termination of tenancy, if the land holder files an application for ejectment, the Tahsildar has to give an opportunity to the tenant to pay the arrears of rent within 90 days, if the tenant fails to comply with that direction it may be open to the Tahsildar to order ejectment of the tenant. In the instant case the M.R.O. has not fixed the fair rent and since there was no understanding between the tenant and the landholder, no opportunity was given to the tenants for payment of rent. Hence, the question of termination of tenancy does not arise and the order of eviction has no validity. Though there was a notice issued by the landholder for termination of tenancy, there is no further material whether landholder filed any application after termination of tenancy, for ejectment and whether the Tahsildar has given any opportunity to the tenant to pay the arrears of rent within 90 days.

In this case M.R.O. did not fix any fair rent and there was no understanding between the parties regarding the rate of rent. In the absence of sufficient opportunity for the tenants for payment of rent, the question of termination of tenancy does not arise. Consequently, the order of eviction became invalid.

The second ground on which the petitioners pleaded termination of tenancy is subleasing of the lands. The respondents have categorically stated that the respondents 2 to 4 are no other than the brothers of the first respondent, who is the Kartha of the joint family property and as they were cultivating the land jointly, 38-E certificate was issued in favour of the first respondent. Therefore, they cannot be treated as sub-lessees and they shall be treated as protected tenants.

The third ground on which the termination of tenancy pleaded was acts of waste by way of cutting of trees. The respondents are in possession of nearly 60 acres of land. There may be several trees in the land. The petitioners contended that the respondent cut away about 18 trees including 4 tamarind and two mango trees, which resulted in wrongful loss to the petitioners. The respondents are the protected tenants. They have been in possession and enjoyment of the land since more than 4 decades. In a vast agricultural land, it is nothing but common there would be several trees and cutting of few trees from those lands would not render such cutting an act of waste and wrongful loss to the petitioners. Therefore, it cannot be treated as a ground for termination of the tenancy. The Joint Collector rightly held that there was no termination of tenancy. Therefore, the Joint Collector was right in holding that the petitioners are not entitled for recovery of possession and the respondents are entitled for restoration of possession of the lands situated in S.No.19, 26, 31/A, 32, 40, 67, 73 and 74 and rightly directed the M.R.O., Manchal to restore the physical possession of the above lands to the respondents. The Joint Collector also rightly held that the petitioners continue to be the pattadars of the above lands. The order of the Joint Collector directing the M.R.O. to fix the fair rent u/s 17 of the Act in respect of the above lands in favour of the landholders is sustained. The time taken for this litigation and the time that is going to be taken by the M.R.O. for fixing the fair rent shall be excluded for the purpose of computation of limitation for recovery of the rent for 1969-72 and the subsequent period.

In the result both the Revision petitions are dismissed. The parties are directed to bear their own costs.