2009 Supreme(SC) 1802

2009(8) Supreme 556
SUPREME COURT OF INDIA
Tarun Chatterjee, and B.S. Chauhan, JJ.
Edukanti Kistamma (Dead) Thr. Lrs. & Others — Appellants
versus
S. Venkatareddy (Dead) Thr. Lrs. & Others — Respondents
Civil Appeal No. 1664 of 2004
Decided On : 03-12-2009

IMPORTANT POINT
1. Once a protected tenant gets a certificate of ownership under Section 38-E(2) of the Act 1950, he has a right to apply for restoration of possession to him if he has been dispossessed.
2. It is a settled legal proposition that challenge to consequential order without challenging the basic order/statutory provision on the basis of which the order has been passed cannot be entertained. Therefore, it is a legal obligation on the part of the party to challenge the basic order and only if the same is found to be wrong, consequential order may be examined.

Headnote:The Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950- Section 38-E- Appeal against judgment and order of High Court passed in Civil Revision Petition by which the High Court set aside the concurrent findings of fact recorded by the Additional Revenue Divisional Officer, Land Reforms Tribunal and the Appellate Tribunal to the effect that predecessor-in-interest of the appellants were protected tenants under provisions of Act, 1950-Held it was not permissible for the High Court to re-open the issue in respect of all the appellants as to whether they were entitled for making the applications for restoration of possession- Once a protected tenant gets a certificate of ownership under Section 38-E(2) of the Act 1950, he has a right to apply for restoration of possession to him if he has been dispossessed- The protected tenant has a right to ask for summary eviction of trespasser - High Court ought to have taken into consideration as under what circumstances the respondents had been claiming their right to object to the grant of certificates to the appellants and, as to whether the alleged sale deed which had never been produced in any Court, and which was admittedly in contravention of Section 47 of the Act, could give any cause of action to the respondents as, the transaction itself remained inconsequential and ineffective rather, void ab initio-The respondents also could not explain as since what date or year they had been in possession of the land in dispute- It was evident from facts and circumstances of case held that respondents even today were not aware as to what was their case exactly and on what basis they claimed the relief-The copy of alleged sale deed or agreement to sell had never been produced before any Court or Authority- It becomes well nigh, impossible to determine as to whether the predecessor-in-interest of the respondents ever purchased the suit property and even if it was so, admittedly, the transaction was void being in contravention of Section 47 of the Act 1950- More so, at the time of argument it was pointed out that respondents had entered into compromise with appellant no.3 in the year 2003 and a rectification deed had been prepared- This was an indication that no valid title had ever passed in favour of respondents, otherwise there was no occasion for them to enter into a compromise with appellant no.3-In view of facts and circumstances, judgment and order of High Court was set aside-Appeal allowed. (Paras 30 to 39)

       Facts of the Case :

        Present Appeal has been filed against judgment and order of High Court passed in Civil Revision Petition by which the High Court set aside the concurrent findings of fact recorded by the Additional Revenue Divisional Officer, Land Reforms Tribunal and the Appellate Tribunal to the effect that predecessor-in-interest of the appellants were protected tenants under provisions of Act, 1950.

       Findings of the Court :

        Held it was not permissible for the High Court to re-open the issue in respect of all the appellants as to whether they were entitled for making the applications for restoration of possession. Once a protected tenant gets a certificate of ownership under Section 38-E(2) of the Act 1950, he has a right to apply for restoration of possession to him if he has been dispossessed. The protected tenant has a right to ask for summary eviction of trespasser . High Court ought to have taken into consideration as under what circumstances the respondents had been claiming their right to object to the grant of certificates to the appellants and, as to whether the alleged sale deed which had never been produced in any Court, and which was admittedly in contravention of Section 47 of the Act, could give any cause of action to the respondents as, the transaction itself remained inconsequential and ineffective rather, void ab initio. The respondents also could not explain as since what date or year they had been in possession of the land in dispute. Before the RDO, the case of the respondents was that they had been in possession of suit land in pursuance of decree of Civil Court . The Order of the RDO revealed that the respondents had claimed before him that they were in possession of the suit land since Ist June, 1950.The High Court in its judgment had taken note of the pleadings taken by the respondents that they had purchased the suit land from original pattedar in the year 1954. However, it was not stated therein, that they had been put in possession of said land. In paragraph 5 of impugned judgment, High Court had further taken note of the pleadings taken by respondents that original land holder offered to sell the entire land to the father of the respondents in the year 1962 and it was so purchased by him for valuable consideration. From the order of Appellate Authority, it was evident that the pleadings before Appellate Authority had been that the respondents were in continuous possession of suit land measuring acres and 20 guntas since last 50 years. The pleadings taken by predecessor-in-interest of the respondents in earlier writ petition had been that they purchased the said land in the year 1955, for valuable consideration.While deciding the case after remand, the RDO in its judgment had taken note of the pleadings taken by respondents that the father of the respondents purchased the said land in the year 1965.Thus, it was evident that respondents even today were not aware as to what was their case exactly and on what basis they claimed the relief.The copy of alleged sale deed or agreement to sell had never been produced before any Court or Authority. It becomes well nigh, impossible to determine as to whether the predecessor-in-interest of the respondents ever purchased the suit property and even if it was so, admittedly, the transaction was void being in contravention of Section 47 of the Act 1950. More so, at the time of argument it was pointed out that respondents had entered into compromise with appellant no.3 in the year 2003 and a rectification deed had been prepared. This was an indication that no valid title had ever passed in favour of respondents, otherwise there was no occasion for them to enter into a compromise with appellant no.3. In view of the above, judgment and order of High Court was set aside. Appeal was allowed.

       Result : Appeal allowed.