ORDER
L. Narasimha Reddy, J.
1. This Civil Revision Petition (CRP) arises under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as ‘the Act’).
2. The facts relevant for the purpose of this CRP are that the 1st petitioner purchased an extent of Ac.3-25 guntas of land in Sy. Nos. 155 and 156 of Karkonda village of Nawabpet Mandal, Mahabubnagar district, in the year 1991, from the father of respondent No. 8, who was the original owner. The petitioners 2 to 5 are the legal representatives of the 1st petitioner. They claim to be in possession and enjoyment of the subject land. Respondent Nos. 3 to 7 claiming to be the successors of one Mr. Siddaiah, the protected tenant, in respect of the very land, filed an application under Section 32 (could be Section 36) of the Act, before the 2nd respondent, the Mandal Revenue Officer, for restoration of possession of the subject land. The petitioners herein and respondent No. 8 were issued notices by the 2nd respondent. In response to the same, they pleaded before the 2nd respondent that the original protected tenant, Mr. Siddaiah, surrendered his tenancy in the year 1954 itself and, as such, no tenancy in respect of the subject land, much less, a protected tenancy, existed after the surrender. It was further contended that the said Siddaiah died issueless and the protected tenancy held by him was in his personal capacity and, as such, respondent Nos. 3 to 7 have no right to claim delivery of possession. The 2nd respondent repelled both the contentions and through orders dated 3-5-1997, directed restoration of possession in favour of respondent Nos. 3 to 7.
3. The petitioners preferred an appeal before the 1st respondent, the Joint Collector, Mahabubnagar, under Section 90(1) of the Act. The 1st respondent, through-orders dated 10-3-1998, affirmed the findings recorded and directions given by the 2nd respondent. The CRP is directed against the order of the 2nd respondent as affirmed by the 1st respondent in their proceedings referred to above.
4. The learned Counsel for the petitioners Sri A. Sudershan Reddy, submitted that the petitioners have categorically pleaded and have established their plea that the protected tenant late Siddaiah had surrendered his tenancy in the year 1954 and the same is evidenced by the pahanies for the years 1954 -55, etc. It is his further contention that respondent Nos. 3 to 7 failed to establish that they are the lineal descendants of the protected tenant and unless it is established in accordance with law, the relief of restoration of possession could not have been granted, more so, when respondent Nos. 3 to 7 have approached the authority almost 45 years subsequent to the surrender of tenancy.
5. The learned Counsel for respondent Nos. 3 to 7, Sri Mahapathi Rao, on the other hand, submits that his clients have established that they were in possession of the subject land in the year 1955 and any surrender subsequent to 4-2-1954 can be valid if only it was recorded in accordance with the provisions of Section 90 of the Act. Since the petitioners have failed to prove this fact, the 2nd respondent was left with no alternative except to order restoration of possession. As regards the succession, the learned Counsel submits that his clients have placed sufficient material in support of their claim before the 2nd respondent and the order under revision does not suffer from any irregularity or illegality.
6. It is not disputed that late Siddaiah was the protected tenant in respect of the subject land. Claiming to be the legal heirs of the said protected tenant, respondent Nos. 3 to 7 approached the 2nd respondent for restoration of possession under Section 36 (though it was stated that the application was made under Section 32) of the Act. This petition was resisted by the petitioners and respondent No. 8 on the ground that the protected tenant surrendered his rights in the year 1954.
7. In this connection, it needs to be noted that the procedure for surrender of tenancy is stipulated under Section 19 of the Act. According to this Section, a valid surrender can take place if only it is in writing and is admitted to the satisfaction of the Tahsildar. This provision i.e., Section 19 (1) (a) of the Act was incorporated with effect from 4-2-1954. This Court in its Judgment in Sada v. Tahsildar, (F.B.) took a view that any surrender before 4-2-1954 could be oral also. Therefore, it was necessary for the 2nd respondent to record a definite finding as to whether there was a surrender at all and if there existed one, on what date it has taken place or at least whether it was before or subsequent to 4-2-1954.
8. The 2nd respondent proceeded to decide this issue only placing reliance upon the pahanies for the years 1952-53 and 1953-54. The question becomes acute in the sense that in the pahanies for the years 1954-55, the names of the petitioners alone were recorded. Added to this, it was not stated as to when the respondent Nos. 3 to 7 either lost the possession or ceased to be in possession of the land. In the context of the surrender, that too, by a person who is no more alive, this fact needs to be clinchingly decided. Having regard to the far reaching consequences that are to ensure on the answer to this question, it is obligatory on the part of the 2nd respondent to arrive at a definite conclusion on the basis of oral and documentary evidence as to whether there was any surrender at all, and if so, on what date. Such exercise does not appear to have been undertaken. Respondent Nos. 3 to 7 also did not state as to with effect from what date either the original protected tenant or the petitioners herein ceased to be in possession of the land the cause on account of which the possession was lost. In the absence of such a plea, more so, in view of the fact that the protected tenant himself is no more, it was rather difficult for the 2nd respondent to give a finding as to the date of dispossession and the cause for the same.
9. Another important aspect to be noted is that the very right of respondent Nos. 3 to 7 to the subject land in their capacity as legal representatives of the deceased protected tenant was disputed by the petitioners. When respondent Nos. 3 to 7 come forward with a plea that they are the legal representatives and they are entitled for the rights of the protected tenant in terms of the provisions of the Act, the burden was upon them to establish that fact to the satisfaction of the authority in accordance with law. The 2nd respondent had unfortunately placed the burden upon the petitioners which is evident from his observation in paragraph 7 of his order, which reads as under:
“Respondents (the petitioners herein) did not produce either circumstantial or recorded evidence to believe that the petitioners’ (respondents 3 to 7 herein) ancestors were not the joint family members and the P.T. rights does not belong to joint family stock.”
Such an approach cannot be countenanced in law. When respondents Nos. 3 to 7 assert that they are the legal representatives of the deceased protected tenant, it is for them to establish that fact. Secondly, what is required by the 2nd respondent from the petitioners was proof of a negative fact. Therefore, such a finding cannot be said to be in accordance with law.
10. For the foregoing reasons, the order of the 2nd respondent dated 3-5-1997 and that of the 1st respondent dated 10-3-1998 are set aside. The matter is remanded to the 2nd respondent, the Mandal Revenue Officer, Nawabpet Mandal, Mahabubnagar district, for fresh disposal in accordance with law and by taking into account the aspects of the matter indicated above. The petitioners as well as the contesting respondents shall be entitled to adduce such evidence in support of their respective pleas as is open to them under law. The 2nd respondent shall decide the matter as early as possible and at any rate within a period of six months from the date of this order.
11. The CRP is accordingly allowed, but in the circumstances of the case, there shall be no order as to costs.