JUDGMENT
D.S.R. Varma, J.
1. Heard both sides.
2. This reference came up for consideration before us upon an order of reference made by a learned Single Judge of this Court.
3. This is a case where the third respondent was given certificate under Section 38-E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Land Act, 1950 (for brevity ‘the Act’). Unfortunately, in the order of reference passed by the learned Single Judge an inadvertent mistake had crept in, stating that it was the petitioner who was granted the certificate under Section 38-E of the Act. The Act also was described as Act of 1956, which also obviously, a typographical mistake. It was further stated in the said order that it was the petitioner who was not in actual and physical possession of the disputed property and that it was he who filed the petition before the Tahsildar and that certain orders have been violated.
4. But, the fact is otherwise; and the defect in the order can simply be cured by inserting expression ‘respondent No. 3’ in place of the petitioner.
5. However, the facts, shorn of, are that respondent No. 3 was originally a tenant to an extent of Ac.25.00 of land in S.No.179 of Madharam Village of Singareni Mandal and a certificate under Section 38-E of the Act was issued by notification in 1976, which fact is not in dispute. It is also not in dispute that the third respondent was actually was not in possession as on the date of the issuance of the certificate under Section 38-E of the Act.
6. Subsequently, the original landlord alienated the property in favour of a non-tribal who, in turn, was the vendor of the present petitioner. The said transaction by the original landlord was allegedly made subsequent to the issuance of the certificate under Section 38-E according to the third respondent, and somewhere in 1962 according to the petitioner. It is a pure question of fact, which this Court cannot answer at this stage.
7. During the course of arguments, it was brought to the notice of this Court by the learned Counsel for the petitioner that the learned Single Judge had relied on a judgment of a Division Bench of this Court in Narsaiah v. Tahsildar, Mahabubabad 1978 (1) ALT 508, wherein and whereby it was held as under:
Thus, the provisions of Section 27 of the Limitation Act with regard to the extinguishments of the right of tenancy are held applicable to a tenant, who is out of possession for the statutory period and the right of such a tenant to bring a suit would be barred. If the right of such a tenant is extinguished and he cannot lay a civil suit for recovery of possession, he cannot be held entitled to restoration of possession, even in a proceeding under the Tenancy Act for the obvious reason that if for one purpose his right is held extinguished for the other it cannot be held to survive. It, therefore, follows that once the right of the tenant is extinguished, in view of Section 27 of the Limitation Act, he cannot be restored to possession either on his application or otherwise by the authorities under the Tenancy Act.
8. On the other hand, the learned Counsel for the respondents brought to the notice of this Court that the said judgment of the Division Bench was overruled by a Full Bench of this Court in Sada v. Tahsildar Utnoor 1987 (2) ALT 749.
9. The learned Single Judge, notwithstanding the fact of the earlier judgment in Narsaiah v. Tahsildar, Mahabubabad (supra) being overruled by the subsequent Full Bench judgment of this Court in Sada v. Tahsildar Utnoor (supra), expressed a doubt that the latter judgment did not deal with the aspect of limitation, which is the crucial question involved, whereas, the earlier judgment Narsaiah v. Tahsildar, Mahabubabad (supra) had dealt with the question of limitation. Therefore, the learned Single Judge referred the matter to the Division Bench.
10. In other words and for convenience, the aspect that is to be examined, had been expressed by the learned Single Judge in the following terms:
…but an examination of the full bench judgment discloses that the issue on which the full bench overruled the earlier division bench is not the one on the question of limitation but on the question whether a person who obtains a certificate under Section 38-E of the above Act without actually having been in possession of the property can seek the aid of the summary procedure to obtain the possession under the provisions of the above Act. Though the Full Bench held that such a tenant could seek the remedy under the summary procedure available under the above Act the question of limitation was not the issue before the full bench.
11. We have perused both the judgments referred to supra. In Narsaiah v. Tahsildar, Mahabubabad (supra), the Division Bench did not consider the aspect of limitation under Section 27 and its applicability to the Act. The Division Bench held that the protected tenant, who was not in possession and seeks restoration of same, is governed by Section 27 of the Limitation Act, 1963 (for brevity ‘the Act’).
12. However, the Full Bench of this Court in Sada’s case (supra) held thus (at paragraph 29):
Once a person becomes a protected tenant, he earns a qualification to become an owner by force of statute, subject of course to the qualification regarding extent in Section 38(7) and to the proviso to Section 38-E(1). There is no requirement in the Act that he should also be in possession on the date specified in the notification issued in Section 38-E(1). The words ‘all lands held by protected tenants’ is more a description of the lands with regard to which the right as ‘protected tenant’ has been declared and there are no words requiring physical possession on the date specified in the notification.
13. Further, while observing that the certificate issued under Section 38-E(2) has to be treated as final and conclusive evidence, it was held thus (at paragraph 68):
There is no provision in the Act dealing with adverse possession. The only provision dealing with ‘limitations’ is the one contained in Section 93 of the Act which initially stated (before the Amendment by Act 2/79) that every appeal or application for revision should be filed within 60 days of the order against which the appeal or revision is filed, and that the provisions of the Indian Limitation Act, 1908 applied only for the purpose of computation of the said period. After the amendment by Act 2/79, it is now stated that the provisions of Section 5 and Sections 12 to 24 of the Limitation Act 1963, shall apply for the purpose of extension and computation. Again under Section 29(2) of the Limitation Act, 1963 also, if the period prescribed by any special or local law for any suit, appeal or application, is different from the one prescribed under the Limitation Act, 1963, the periods prescribed in those laws apply as if prescribed in the schedule to the limitation Act and, for determining any such periods, the provisions of Sections 4 to 24 shall apply except to the extent excluded by the special or local law. Under Section 28(2) of the new Limitation Act there is no provision making Article 65 and Section 27 thereof applicable to special laws. Similarly, even under Section 29(2) of the old Limitation Act, 1908, there is no provision making Article 144 and Section 28 thereof applicable to special laws. Thus, either under the new Limitation Act, 1963 or under the old Limitation Act, 1908, there is no possibility for the landholders to invoke either the plea of adverse possession under old Article 144 or new Article 65 or the plea of extinguishments of any right (under old Section 28 or new Section 27) inclusive of the right of protected tenancy under the Act. The right of protected tenants to recover possession is uninhibited by any principle of adverse possession.
14. From a bare reading of the above, it is obvious that two aspects are relevant for the purpose of answering the present reference. Firstly, under Section 29(2) of the Limitation Act, 1963 there is no provision making Articles 65 and Section 27 thereof, applicable to special laws, – in the instant case, the special law is the Act. Secondly, the right of a protected tenant to recover possession of land is uninhibited by any principle of adverse possession. ‘Adverse possession’ is a concept, which otherwise deals with the aspect of limitation.
15. Therefore, from the above two categorical clarifications made by the Full Bench of this Court in Sada’s case (supra), it is abundantly clear that the earlier judgment of the Division Bench in Narsaiah v. Tahsildar, Mahabubabad (supra) had been overruled not only on other grounds but also on the ground of applicability of Section 27 of the Limitation Act, 1963.
16. Therefore, in view of the above observation made by the Full Bench in Sada’s case (supra), while overruling the judgment rendered by the Division Bench of this Court in Narsaiah v. Tahsildar, Mahabubabad (supra), no further clarification, in our considered view, is required.
17. With the above clarification, the reference is answered accordingly and Registry is directed to list the civil revision petition before the appropriate Bench after obtaining necessary orders from the Hon’ble the Chief Justice.