{"id":93693,"date":"2007-01-25T00:00:00","date_gmt":"2007-01-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/boddam-narsimha-vs-hasan-ali-khan-dead-by-l-r-ors-on-25-january-2007"},"modified":"2015-11-03T22:14:32","modified_gmt":"2015-11-03T16:44:32","slug":"boddam-narsimha-vs-hasan-ali-khan-dead-by-l-r-ors-on-25-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/boddam-narsimha-vs-hasan-ali-khan-dead-by-l-r-ors-on-25-january-2007","title":{"rendered":"Boddam Narsimha vs Hasan Ali Khan (Dead) By L.R. & Ors on 25 January, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Boddam Narsimha vs Hasan Ali Khan (Dead) By L.R. & Ors on 25 January, 2007<\/div>\n
Author: Kapadia<\/div>\n
Bench: Dr. Arijit Pasayat, S. H. Kapadia<\/div>\n
           CASE NO.:\nAppeal (civil)  3429 of 2002\n\nPETITIONER:\nBoddam Narsimha\n\nRESPONDENT:\nHasan Ali Khan (Dead) by L.R. & Ors\n\nDATE OF JUDGMENT: 25\/01\/2007\n\nBENCH:\nDr. Arijit Pasayat & S. H. Kapadia\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
KAPADIA, J.\n<\/p>\n
\tNawaz Jung Bahadur was a pattedar of the lands  inter alia  in Survey
\nNos. 63, 68, 69 and 70 admeasuring 69 acres 10 guntas in village Madhapur
\nof Serlingampally Mandal,  Ranga Reddy in Andhra Pradesh. On the demise
\nof Nawaz Jung Bahadur, one of his sons Mohd. Ali Khan filed a suit for
\npartition of the properties of late Nawaz Jung Bahadur. This was in 1935.
\nThe scheduled property was Item 6 of Schedule B in Suit No. 42\/62 filed in
\nthe City Civil Court, Hyderabad. In the plaint it was stated that Item 6 was in
\npossession of the tenants. One such tenant, Boddam Bala Mallaiah
\n(hereinafter referred to as “Bala”) was the cultivating tenant in respect of
\nSurvey Nos. 63, 68, 69 and 70 of village Madhapur admeasuring 69 acres 10
\nguntas as indicated by Khasra Pahani for the year 1954-55. Bala was a lessee
\nfor three years. He was inducted in the aforesaid lands under a kaulanama
\ndated 1.3.1953. This kaulanama was executed by one Hamid Ali Khan son
\nof Md. Nawaz Jung. Initially it was for one year. It was renewed each year.
\nIt stated that on expiry of the stipulated period the tenant will have no right
\nover the land in possession. It further stated that Bala will be sole cultivator
\nand that without the permission of the landlord, Bala will not include any
\nother cultivator. Hamid Ali Khan sold his share to Bala on 23.11.1959
\nthrough a registered sale deed. The partition suit referred to above filed in
\n1935 (renumbered in 1962) stood decided on 24.11.1970. This sale deed
\ndated 23.11.1959 in favour of Bala stood executed after the vendor Hamid
\nAli Khan obtained permission under Sections 47 and 48 of the Hyderabad
\nTenancy and Agricultural Land Act, 1950. The permission was obtained
\nfrom Deputy Collector on 13.11.1959. Accordingly, Bala became a pattedar
\nin place of Hamid Ali Khan in respect of the suit land. In the revenue
\nrecords for the year 1972-73, the name of Bala was shown as pattedar. The
\nalienation in favour of Bala was during the pendency of the suit for partition
\nof the ancestral properties belonging to Nawaz Jung Bahadur. Bala died in
\n1975. He was the paternal uncle of the appellant herein.\n<\/p>\n
Pursuant to the preliminary decree, an Advocate Commissioner was
\nappointed in the final decree proceedings vide I. A. No. 854\/84 in suit No.
\n42\/62. On 28.11.1993 the said Commissioner came to the suit site to
\nmeasure the lands. At that stage the LRs. of Bala and his 2 brothers
\ninstituted a suit for permanent injunction against the respondents herein
\nbeing suit No. 294\/93 which was dismissed on 8.6.1998. The important
\npoint to be noted is that the plaintiffs in the said suit did not allege Bala to be
\na protected tenant. Bala had two brothers, namely, Agaiah (father of the
\nappellant) and Komariah.\n<\/p>\n
\tSubsequently, the vendees ( K. Sambasiva Rao and ors.) who claimed
\ntitle through the LRs. of Bala and his two bothers instituted another suit for
\npermanent injunction against the respondents herein. This suit was dismissed
\non 8.6.1998.\n<\/p>\n
\tThe LRs. of Bala and his two brothers filed one more application
\nbefore the Special Court under the Land Grabbing (Prohibition) Act, 1982
\nwhich was dismissed by the Special Court vide Order dated 13.5.1997.\n<\/p>\n
\tHaving failed in the above proceedings, an application was moved on
\n16.12.1998 before the Tribunal (R.D.O.), Ranga Reddy Distt. seeking a
\ndeclaration of protected tenancy under Section 37-A of the Tenancy Act.
\nThis application was moved by the present appellant. In the said application,
\nit was alleged for the first time that late Bala was a protected tenant. By the
\nsaid application, the appellant also asked for an Ownership Certificate under
\nSection 38-E of the A. P. (Telangana Area) Tenancy & Agricultural Lands
\nAct, 1950 (“the Act”) as amended from time to time. In other words, the
\nappellant herein invoked the said Act for the first time on 16.12.1998 though
\nSection 37-A stood incorporated in the tenancy law by way of an
\n(Amendment) Act, 1955, which came into force on 12.3.1956.\n<\/p>\n
\tBala was the paternal uncle of the appellant herein. He died in 1975.
\nHe, during his lifetime, did not claim to be a protected tenant. In fact, as
\nstated above, he became a pattedar prior to 1.1.1973. Even his LRs. did not
\nclaim that Bala was a protected tenant in respect of the said land, therefore,
\nfor the first time, the nephew of Bala, the appellant herein, sought a
\ndeclaration that Bala was a protected tenant under Section 37-A and
\naccordingly claimed an Ownership Certificate under Section 38-E of the Act
\nafter a lapse of more than 40 years. No explanation was given in the
\napplication by the appellant for not invoking section 37-A for almost 40
\nyears. The Tenancy Act came into force on 10.6.1950. At this point it may
\nbe stated that the appellant herein is not the L.R. of Bala. The appellant is
\nthe nephew of Bala, however, appellant claims that Bala was cultivating the
\nabove lands with his two brothers, namely, Agaiah (father of the appellant
\nherein) and Komaraiah.\n<\/p>\n
\tOn receipt of the said application dated 16.12.1998, the matter was
\nreferred by the Tribunal to the Mandal Revenue Officer (“M.R.O.”), who
\nreported that there was no protected tenants in respect of the suit lands and
\nthat Bala’s name was never recorded as protected tenant in respect of the
\nsaid lands. It was further reported that Bala was the pattedar, that he was
\ncultivating the lands as pattedar and that he was cultivating as Owner under
\nthe above sale-deed dated 23.11.1959.\n<\/p>\n
\tBefore the Tribunal, two contentions were advanced, namely, that
\nBala was a deemed tenant under section 5 of the Act. It was also contended
\nthat, in any event, Bala was the protected tenant under section 37-A of the
\nAct and, therefore, he was entitled to Ownership Certificate under section
\n38-E of the Act. Both these contentions were rejected by the Tribunal vide
\norder dated 24.8.1999. It was held that section 5 contemplates making of an
\napplication by the landlord upon which the Tehsildar had to decide whether
\nthere is a deemed tenant on the property. The Tribunal held on the facts of
\nthe present case that neither the appellant protested against omission of
\nBala’s name from the revenue records as a deemed tenant nor has the
\nlandlord filed an application before the Tehsildar to declare Bala not be a
\ntenant. No application was ever made to rectify the alleged mistake\/
\nomission. In the circumstances, the Tribunal held that section 5 of the Act
\nhas no application. On the second point regarding applicability of section
\n38-E, the Tribunal held that in 1975 an enquiry was conducted pursuant to
\nthe Notification issued by the Government enforcing the provisions of
\nsection 38-E. In that enquiry, it was found that there were no protected
\ntenants in Madhapur village. For the aforestated reasons, the Tribunal
\ndismissed the application made by the appellant.\n<\/p>\n
\tAggrieved by order of the Tribunal dated 24.8.1999, the appellant
\nherein preferred an appeal under Section 90 of the Act. The appeal was
\ndismissed by the Joint Collector vide order dated 13.3.2000. Thereupon, a
\nCivil Revision Petition was filed by the appellant herein under section 91 of
\nthe Act which was dismissed by the High Court vide judgment dated
\n16.4.2001 which is now under challenge before this Court.\n<\/p>\n
\tMr. F.S. Nariman, learned senior counsel, appearing on behalf of the
\nappellant submitted that a statutory right of protected tenancy is not lost on
\naccount of delay or laches. It was submitted that such a right is not
\nobliterated for want of application, particularly when the law does not
\ncontemplate any such application by the person claiming to be a protected
\ntenant and also in the absence of any injury or prejudice to the land holders.
\nIn this connection, it was urged that under section 37-A of the Act, a tenant
\nin possession on 12.3.1956 becomes a protected tenant; that section 37-A
\ndirects the authorities to record him as a protected tenant and that section
\n37-A does not prescribe any application to be made and, therefore, in such
\ncircumstances, it cannot be said that a statutory right is lost because the
\nconcerned person did not make any application for recognition of his status
\nas a protected tenant. In order words, it was urged that if a tenant is in
\npossession on 12.3.1956, then the statute confers upon him the status of a
\nprotected tenant and such a right continues even if the person entitled thereto
\nfails to move the authorities for grant of a declaration. In the circumstances,
\nit is urged that the appellant was entitled to a certificate of ownership under
\nsection 38-E of the Act, which stood introduced w.e.f. 1.1.1973.\n<\/p>\n
\tIt was next urged that delay or omission, if any, to compile list of
\nprotected tenants under sections 37-A and 38-E of the Act was on account of
\nthe failure on the part of the concerned authorities under the Act for which
\nthe tenant cannot be denied as status of protected tenancy by invoking the
\ntheory of laches and delay. Learned counsel urged that the statutory rights of
\nthe protected tenant conferred under section 37-A upon cultivating tenants in
\npossession on 12.3.1956 are automatic and not dependant on applications to
\nbe made. He acquires rights of ownership under section 38-E of the Act
\nautomatically. That the respondents were pattedar of lands admeasuring
\n2000 acres which was more than the ceiling prescribed and, therefore, Bala
\nhad acquired rights of protected tenancy under section 37-A of the Act
\nbecause he was the cultivating tenant in possession on 12.3.1956. According
\nto section 38-E, the ownership of the land stood automatically transferred to
\nprotected tenants if the conditions under section 38(7) stood satisfied.
\nAccording to the appellant, under section 38-E, the authorities were duty
\nbound to prepare a provisional list of protected tenants to whom ownership
\nstood transferred. A general notice was required to be published. Individual
\nnotices were required to be given to the protected tenants of the land holders.
\nA public enquiry was required to be made. Only then a final list had to be
\npublished. Learned counsel submitted that no such notice was ever given to
\nthe appellant though the appellant’s family continued to remain in
\npossession. The appellant have challenged the finding of the Tribunal that
\nthere was an enquiry and a nil provisional list was prepared in 1975 under
\nsection 38-E against which there was no protest from the appellant or from
\nthe LRs. of Bala. As no such notice was ever issued, the application made by
\nthe appellant in 1998 under section 38-E should have been treated as an
\nobjection to the provisional list and, therefore, the Tribunal had wrongly
\nrejected the appellant’s application for Ownership Certificate. Learned
\ncounsel urged that the name of Bala was recorded in the Khasra Pahani for
\nthe year 1954-55 as a tenant and his name was shown as a pattedar
\nsubsequently and, therefore, it was the statutory duty of the Tribunal to
\nconduct an enquiry suo moto which they fail to do. It is the case of the
\nappellant that they are in possession of the lands right throughout and they
\nmoved under the Act only when their possession sought to be disturbed.
\nLearned counsel submitted that it was the duty of the concerned authorities
\nto prepare a list of protected tenants. They fail to prepare the list, therefore,
\naccording to the learned counsel, the application of the appellant under
\nsection 38-E ought not to have been rejected on the ground of delay and
\nlaches, particularly when under the Act there is no limitation prescribed. The
\nappellant had approached the Tribunal when the Advocate Commissioner
\nappointed by the civil court, in the partition suit filed by the owners
\n(respondents herein) sought partition of the properties belonging to late
\nNawaz Jung Bahadur, tried to dispossess the appellant. Therefore, the
\nappellant’s right to seek a declaration\/ Ownership Certificate arose only
\nwhen the Advocate Commissioner tried to dispossess the appellant. Mere
\nlaches would not disentitle the tenant to the relief sought for by him under
\nthe Act. In this connection, reliance was placed on the judgment of the Full
\nBench of the Andhra Pradesh High Court in the case of Sada  v. The
\nTahsildar, Utnoor reported in AIR 1988 AP 77. It was submitted that the
\naccrued right in favour of the tenant by operation of law does not get
\ndefeated merely by omission to have their names recorded in the revenue
\nrecords. In this connection, reliance was placed on the judgment of this
\nCourt in the case of Bahadur Singh and ors.  v.  Shangara Singh and ors.<\/a>
\nreported in (1995) 1 SCC 232. It was next contended that in view of the
\nMemo dated 11.9.2000 issued by the R.D.O. stating that the particulars of
\ntenants who  became protected tenants under section 37-A was not available
\nthough the register contains particulars of 36 other villagers. The High Court
\nshould have directed the Tribunal to hold an enquiry and compile a register
\non the basis of the village record since no person can be affected on account
\nof omissions on the part of the Tribunal in complying with the statutory
\nmandatory provisions of the Act.\n<\/p>\n
\tFor the following reasons, we do not find any merit in the above
\ncontentions.\n<\/p>\n
\tBala was a koul  who had taken an annual lease from Hamid Ali
\nKhan. He was a tenant-at-will. This was during the pendency of the partition
\nsuit. He became a pattedar vide conveyance dated 23.11.1959. The kaul
\nitself indicates, that Bala was to cultivate in his individual capacity; that at
\nthe end of the year, Bala had to return the lands to the owner; that Bala was
\nnot given the right to include any other cultivator. Therefore, there is no
\nmerit in the contention of the appellant that Bala was jointly cultivating the
\nsuit lands with his two brothers Agaiah (father of the appellant) and
\nKomaraiah. Further, between tenancy and the conveyance, there was a time
\ngap. Hamid Ali Khan was a pattedar. His rights were purchased by Bala
\nvide conveyance dated 23.11.1959, therefore, on 1.1.1973, when the
\nNotification came to be issued, Bala was not the tenant. He was a pattedar.
\nMoreover, appellant herein is not the L.R. of Bala. Bala was his paternal
\nuncle. At no point of time, even the LRs. of Bala had claimed that Bala was
\na protected tenant. It is evident from section 38-E that the said section has
\nbeen enacted for those protected tenants who are declared to be protected
\ntenants and included in the Register prepared for that purpose. A person
\nbecomes a protected tenant when he is a holder on the dates or for the
\nperiods mentioned in sections 35, 37 and 37-A. Once a person becomes a
\nprotected tenant, he is entitled to an Ownership Certificate under section 38-
\nE. In the case of Sada (supra) the Full Bench of the Andhra Pradesh High
\nCourt held that a person “holds” the land as protected tenant if he is still a
\nprotected tenant on the notified date i.e. 1.1.1973, though out of possession.
\nAs long as his right as protected tenant has not been determined by the date
\nof Notification in a manner known to the Act, he holds the land as a
\nprotected tenant, whether physically in possession or not. For the vesting of
\nownership of land held by a protected tenant under section 38-E, it is not
\nnecessary that the protected tenant should be in physical possession on
\n1.1.1973. It is sufficient if he continues to hold the status of a protected
\ntenant on the notified date, even if he is not in physical possession. The Act
\ndoes not merely regulate the relationship of landlord and tenant but deals
\nwith the alienation of agricultural land and includes transfer of the land
\nholders interest to the protected tenants. Therefore, the grant of pattedari
\n(ownership rights) also finds place in the Act.\n<\/p>\n
On the facts and circumstances of the present case, Bala had become a
\npattedar (owner) under the conveyance dated 23.11.1959. His name was
\nshown as a pattedar even prior to 1.1.1973. The benefit of section 38-E is
\ngiven to persons who hold the lands as protected tenants and who continue
\nto hold the lands as protected tenants on 1.1.1973. The protected tenancy has
\nto be enforced on 1.1.1973. Under section 38-E, ownership rights are
\nconferred only upon persons who continue to be protected tenants as on
\n1.1.1973. They form a special class. In the present case, as stated above,
\nBala became a pattedar in 1959. In the case of Sada (supra) it has been held
\nthat protected tenants are covered by Chapter IV of the Act. They fall under
\na limited category. They are referred to in sections 34, 37 and 37-A. In the
\nsaid judgment, it has been held that section 37-A, introduced by Act No.
\n3\/56 deals with a separate class of persons deemed to be protected tenants.
\nThis class of persons is different from the category of protected tenants who
\nfall under sections 34 and 37 respectively. Section 37-A refers to persons
\nwho are holders of the land at the commencement of Amending Act of 1955
\n(12.3.1956). These persons were required to be tenants on 12.3.1956 and
\nthat they should continue to be tenants till 1.1.1973. Only such category of
\npersons are entitled to Ownership Certificate under section 38-E. In the
\npresent case, even for the sake of argument, if we were to proceed on the
\nbasis that Bala was a protected tenant on 12.3.1956, still Bala became a
\npattedar vide conveyance dated 23.11.1959, therefore, in any event, the
\nassumed protected tenancy did not continue up to 1.1.1973. In our opinion,
\ntherefore, in any view of the matter, the appellant herein was not entitled to
\nthe Ownership Certificate under section 38-E of the Act. Section 38-E has
\nno application to the facts of the present case.\n<\/p>\n
We conclude on this point by quoting para 44 of the judgment of
\nAndhra Pradesh High Court in the case of Sada (supra).\n<\/p>\n
“44. In our view, this contention is not correct. If a
\nprotected tenant is already in physical possession on the
\ndate of notification there is no problem at all. If
\nproceedings under S. 19, 32 or 44 are pending, the date
\nof vesting gets itself postponed. If the ‘protected tenancy’
\nstood validly terminated by the date of notification under
\nS. 19, 32 or 44, in that case, no certificate at all can be
\nissued. But, as long as a person continued to be a
\n‘protected tenant’ either under S. 34, 37 or 37-A, as per
\nthe Act and has not lost that status, whether he is in
\nactual possession or not on the date of notification, and is
\nalso to be ‘deemed’ to be in possession under the first part
\nof the Explanation subject to S. 32(7) and the proviso to
\nS. 38-E(1), the ownership stands transferred straightway
\nto such protected tenant by the very force of S. 38- E(1).
\nFurther, S. 38-E(2) read with the A. P. (T.A.) Protected
\nTenants (Transfer of Ownership of Lands) Rules, 1973
\ncontemplates a full-fledged inquiry after notice to the
\nlandholders or after hearing objections of any other
\ninterested person (vide Rr. 4, 5). Once a certificate is
\nissued, the same is, under S.. 38E(2), ‘conclusive
\nevidence’ of the ownership of the protected tenant, and
\ncannot be defeated by the result of any inquiry under
\nsecond part of the Explanation to S. 38- E. Another
\nreason for this view is that the inquiry under S. 38-E(2)
\nread with the Rules of 1973 referred to above, is to be
\ndone by the Tribunal (the Revenue Divisional Officer)
\nand obviously his decision to grant the ownership
\ncertificate will not and cannot be jeopardised by the
\nresult of any inquiry by a subordinate official like the
\nTahslidar, who deals with the granting of possession to a
\n‘protected tenant.”                             (emphasis supplied)<\/p>\n
\tSecondly, as stated above, Bala was a lessee from Hamid Ali Khan.
\nThe kaul itself indicates that Bala was obliged to cultivate the lands in his
\nindividual capacity. However, it was urged on behalf of the appellant that
\nBala jointly cultivated the lands with Agaiah (father of the appellant herein),
\nand Komaraiah. We gave opportunity to the appellant to produce any entry
\nfrom the revenue records, village records or mutation entry indicating joint
\ncultivation of the land by Bala and his two brothers. Appellant had not been
\nable to show any such entry. This aspect is important since the appellant is
\nnot the L.R. of Bala. At no point of time, Bala or his LRs. or even the
\nappellant has approached the authorities to record joint cultivation in the
\nmutation entries.  Under section 48-A of the Act, restrictions are placed on
\nalienation by a protected tenant. A protected tenant on 1.1.1973 cannot
\nalienate the right of ownership under section 38-E for eight years from the
\ndate of acquisition of such rights. Further, under section 40 of the Act, all
\nrights of a protected tenant are heritable by his lineal descendants by blood
\nor adoption. Bala died in 1975. Bala died during the period when there was
\nrestriction on alienation of ownership rights acquired by a protected tenant
\nunder section 38-E. The present appellant has not applied on the demise of
\nBala for his name to be brought on record as L.R. of Bala or on the basis of
\njoint cultivation by his father, Agaiah and other uncle Komaraiah. Further
\nunder section 4 of the Andhra Pradesh Rights in Land and Pattadar Pass
\nBook Act, 1971, acquisition of rights have got to be intimated. Any person
\nwho acquires any right by succession, survivorship, inheritance, partition,
\npatta or otherwise has to intimate in writing about his acquisition of such
\nright. There is nothing to show that Bala and his two brothers were jointly
\ncultivating the lands. In fact, the kaul did not allow Bala to cultivate the land
\nwith any other person without the prior permission of the landlord. In the
\ncircumstances, there is no evidence to show that the land was jointly
\ncultivated by Bala along with Agaiah and Komaraiah. Therefore, in any
\nview of the matter, since the present appellant is not the L.R. of Bala, he is
\nnot entitled to an Ownership Certificate or a declaration of protected tenancy
\nunder the Act. In our view, having failed in the civil court and before the
\nspecial court under the Land Grabbing Act the present appellant falsely
\nclaimed to be a protected tenant as on 1.1.1973. The entire exercise was an
\nabuse of process of law. In the circumstances, the High Court was right in
\ndismissing the petition on the ground of delay and laches.\n<\/p>\n
\tFor the aforestated reasons, there is no merit in the civil appeal and
\nthe same is dismissed with no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Boddam Narsimha vs Hasan Ali Khan (Dead) By L.R. & Ors on 25 January, 2007 Author: Kapadia Bench: Dr. Arijit Pasayat, S. H. Kapadia CASE NO.: Appeal (civil) 3429 of 2002 PETITIONER: Boddam Narsimha RESPONDENT: Hasan Ali Khan (Dead) by L.R. & Ors DATE OF JUDGMENT: 25\/01\/2007 BENCH: Dr. Arijit Pasayat […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-93693","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBoddam Narsimha vs Hasan Ali Khan (Dead) By L.R. & Ors on 25 January, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/boddam-narsimha-vs-hasan-ali-khan-dead-by-l-r-ors-on-25-january-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Boddam Narsimha vs Hasan Ali Khan (Dead) By L.R. & Ors on 25 January, 2007 - 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