2007 Supreme(SC) 95

2007(2) Supreme 830
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
Dr. Arijit Pasayat and S.H. Kapadia, JJ.
Boddam Narsimha—Appellant
versus
Hasan Ali Khan (Dead) by LR. & Ors.—Respondents
Civil Appeal No. 3429 of 2002
Decided on 25-1-2007
Counsel for the Parties :
For the Appearing Parties : F.S. Nariman, M.N. Rao, Dr. Rajeev Dhawan, K.K. Venugopal, Dushyant A. Dave, Shyam Divan, Sr. Advocates, Subhash Sharma, Hari Sreedhar, Ms. Lupanlu Gangmei, Pradeep Kumar Kar, Krishna Kumar, Ms. Rekha Pandey, M.A. Mukheem, P. Sriniwash Reddy, Ms. Manjeet Kirpal, T.N. Rao, Ch. Leela Sarveswar, D. Rama Krishna Reddy, Mrs. D. Bharathi Reddy, Krishnan Venugopal, S. Udaya Kumar Sagar, Ms. Bina Madhavan, A. Venayagam (for M/s. Lawyer’s Knit & Co.), Advocates.

IMPORTANT POINT
Under Section 38-E of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950, ownership rights are conferred only upon persons who continue to be protected tenants as on 1-1-1973.

Headnote:A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950—Sections 38-E, 37A—Hyderabad Tenancy and Agricultural Land Act, 1950—Sections 47, 48—Protected Tenant—Claim of Ownership Certificate u/s 38-E—One ‘NJB’ was a pattedar of the lands—On demise of ‘NJB’, one of his sons filed a suit for partition of properties—In the plaint it was stated that Item 6 was in possession of tenants—One tenant ‘B’ was the cultivating tenant—He was inducted in the lands under a kaulanama executed by ‘HAK’ another son of ‘NJB’—‘HAK’ sold his share to ‘B’ in 1959 through a registered deed—‘B’ became a pattedar in place of ‘HAK’ in respect of the suit land—In the revenue records for the years 1972-73, the name of ‘B’ was shown as pattedar —‘B’ died in 1975—He was paternal uncle of appellant—Appellant filed an application seeking a declaration of protected tenant u/s 37-A of the Tenancy Act—Appellant also asked for an Ownership Certificate u/s 38-E of the Act after a lapse of more than 40 years—Whether appellant was entitled to the Ownership Certificate under Section 38-E of the Act—(No)—Section 38-E has no application to the facts of the present case—High Court was justified in dismissing the petition on ground of delay and laches.

       Held : On the facts and circumstances of the present case, Bala had become a pattedar (owner) under the conveyance dated 23.11.1959. His name was shown as a pattedar even prior to 1.1.1973. The benefit of section 38-E is given to persons who hold the lands as protected tenants and who continue to hold the lands as protected tenants on 1.1.1973. The protected tenancy has to be enforced on 1.1.1973. Under section 38-E, ownership rights are conferred only upon persons who continue to be protected tenants as on 1.1.1973. They form a special class. In the present case, as stated above, Bala became a pattedar in 1959. In the case of Sada (supra) it has been held that protected tenants are covered by Chapter IV of the Act. They fall under a limited category. They are referred to in sections 34, 37 and 37-A.(Para 14)

       Only such category of persons are entitled to Ownership Certificate under section 38-E. In the present case, even for the sake of argument, if we were to proceed on the basis that Bala was a protected tenant on 12.3.1956, still Bala became a pattedar vide conveyance dated 23.11.1959, therefore, in any event, the assumed protected tenancy did not continue up to 1.1.1973. In our opinion, therefore, in any view of the matter, the appellant herein was not entitled to the Ownership Certificate under section 38-E of the Act. Section 38-E has no application to the facts of the present case. (Para 14)

       Secondly, as stated above, Bala was a lessee from Hamid Ali Khan. The kaul itself indicates that Bala was obliged to cultivate the lands in his individual capacity. However, it was urged on behalf of the appellant that Bala jointly cultivated the lands with Agaiah (father of the appellant herein), and Komaraiah. We gave opportunity to the appellant to produce any entry from the revenue records, village records or mutation entry indicating joint cultivation of the land by Bala and his two brothers. Appellant had not been able to show any such entry. This aspect is important since the appellant is not the L.R. of Bala. At no point of time, Bala or his LRs. or even the appellant has approached the authorities to record joint cultivation in the mutation entries. Under section 48-A of the Act, restrictions are placed on alienation by a protected tenant. A protected tenant on 1.1.1973 cannot alienate the right of ownership under section 38-E for eight years from the date of acquisition of such rights. Further, under section 40 of the Act, all rights of a protected tenant are heritable by his lineal descendants by blood or adoption. Bala died in 1975. Bala died during the period when there was restriction on alienation of ownership rights acquired by a protected tenant under section 38-E. The present appellant has not applied on the demise of Bala for his name to be brought on record as L.R. of Bala or on the basis of joint cultivation by his father, Agaiah and other uncle Komaraiah. Further under section 4 of the Andhra Pradesh Rights in Land and Pattadar Pass Book Act, 1971, acquisition of rights have got to be intimated. Any person who acquires any right by succession, survivorship, inheritance, partition, patta or otherwise has to intimate in writing about his acquisition of such right. There is nothing to show that Bala and his two brothers were jointly cultivating the lands. In fact, the kaul did not allow Bala to cultivate the land with any other person without the prior permission of the landlord. In the circumstances, there is no evidence to show that the land was jointly cultivated by Bala along with Agaiah and Komaraiah. Therefore, in any view of the matter, since the present appellant is not the L.R. of Bala, he is not entitled to an Ownership Certificate or a declaration of protected tenancy under the Act.(Para 16)