ivil Appeal No 2098 of 1980
From the Judgment and Order dated 2061980 of the Andhra Pradesh High Court in CivilRevision Petition No 736 of 1980
K Madhava Reddy ADN Rao and ASubba Rao for the Appellant
UR Lalit CP Sarthy and ATM Sampath for the Respondent
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
This appeal with leave arising out of a judgment of the High Court of Andhra Pradesh illus trates how the land reform and the progressive policy of land to the tiller could be defeated by vested interests and lukewarm attitude of statutory authorities
The relevant facts
The appellants were in possession of certain agricultur al lands as tenants
After coming into force of the AP TA Tenancy  Agricultural Lands Act 1950 The Act they were recognised as protected tenants
A protected tenant means that he is protected from 474 eviction
If he is dispossessed the Tehsildar suo motu or on application shall put him in possession
Rev Rutar Ford Padri and Vundru Padri were admittedly their landlords
The appellants had no problem with them
It seems that they had left the country long ago
The first respondent claims to be the Property Association of the Baptists Churches Pvt Ltd The Association The Association does not dispute that the lands were originally purchased by Rev Rutar Ford Padri and Vandru Padri but it says that they purchased for the benefit of American Baptish Formation Society
The lands stood transferred to the Association as per order made by the Madras High Court in company petition Nos 109 and 110 of 1973
The Association thus claims to be the owner and also says that it is in defacto possession of the lands
In 1976 the Association issued notice under sec
192 of the Act terminating the appellants  tenancy
In the notice it was alleged that the appellants were self styled tenants
They have not paid the rents for more than three decades
They were working off and on as casual labourers
They were being paid for their services
There was no other relationship between them and the Association
It was fur ther alleged that the appellants sub divided the lands and alienated bit by bit to third parties and thereby denied title of the landholder
They have been therefore treated as trespassers
On May 31 1976 the appellants received the said notice but did not send any reply
Thereafter the Association moved the Tehsildar Jangaon under secs
192 read with 281 of the Act seeking symbolic possession of the lands from the appellants
It is interesting to note some of the averments made in that application Neither of the above persons had possession during the statutory period under sec
34 of the Tenancy Act to claim protected tenancy over the said lands
The said persons by taking undue advantage of the similarity of the names appearing in the Tenancy Registers with respect to the said lands are asserting fictitious and imaginary rights of Protected Tenancy in the above lands
It is submitted that without any basis or foundation and are made without any notice to the then landlords and even if it is to assume that the said persons are the protected tenants with respect to the above lands their so called rights have been duly and legally terminated under sec
19 of the Tenancy Act by giving them notices for the Statutory period of six months 475 which they have received on 3151976 but failed to give reply to it
The termination of the Protected Tenancy Rights is irrevocable and after the expiry of the statutory period from the said date of receipt of the notice they are not entitled to claim any rights whatsoever much less Protected Tenancy Rights on the above lands
 XX XX XX XX XX XX In all the above lands the appellant is having his own cultivation for the benefit of the said schools and hostels
Some lands are cultivated by the students themselves under the Cow Boy System
All the above lands are in physical possession of the applicant here in
But to overcome the legal implications the applicants are claiming symbolic posses sion pursuant to termination notice
 Before the Tehsildar the appellants denied all the above allegations
They did not recognise the Association as their landlord
They asserted that they were protected tenants entitled to remain in possession of the lands
On November 28 1977 the Tehsildar made an order ac cepting the contentions of the Association
The Association was held to be the owner of the lands
The appellants were held to have no right since their tenancy was duly terminat ed
The appellants appeared to the Joint Collector Warran gal who dismissed the appeal with the following observa tions It is evident from records that the appellants are not in possession of the suit lands whereas the respondent Association is possessing and enjoying it
The suit land is covered by structures like Mission School residential quarters hostels for students etc
and the rest of the land is in possession and occupation of respondent Association and some third persons
Since the appellants are adversely out of possession their rights also stands extinguished under sec
27 of the Limitation Act  
Since the facts of non payment of rents assignment of interest in the land personally which constitute the grounds for respondent Association to termi nate the tenancy under sec 19 of the Act are proved before the lower court and 476 neither rebutted in this appeal nor the find ings of the lower court on these points are challenged the appeal does not merit any consideration
 The appellants then approached the High Court with revision petition under sec
91 of the Act
The High Court did not do anything better except blessing the observations made by the Collector
The High Court observed that the appellants were not cultivating the lands personally
They did not dispute non payment of rent
Nor denied assignment of interest in the land to third parties
So Stating the revision was dismissed
The contentions
Counsel for the appellants argued that Rutar Ford Padri and Vundru Padri were the landholders under whom the appel lants were protected tenants
That has been so recorded in the final record of Agricultural tenancy
The appellants were not parties to the company petition Nos 109 and 110 of 1973 in the High Court of Madras
Nor they had any notice of that proceedings
Since they were protected tenants the landholders had no right to transfer the lands to the Asso ciation without first offering the same to them
It is a mandatory requirement under the Act
The alienation to the Association even if true was in contravention of the stat ute and therefore invalid and unenforceable
The appellants could not pay the rent to Rutar Ford Padri and Vundru Padri because their whereabouts were not known
The Association has adopted illegitimate means to dispossess the appellants by setting students against them
The action of the Associa tion was illegal and an offence punishable under the Act
With these and other contentions it was urged that the possession of lands should be restored to the appellants
Counsel for the Association on the other hand sought to justify the orders under appeal
We heard counsel for both the parties
We have carefully perused the material on record
The relevant statutory provisions Section 5 of the Act reads 477 5
Persons deemed to be tenants A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated person ally by the landholder and if such person is not a a member of the landholder s family or b a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the per sonnel supervision of the landholder or any member of the landholder s family or c a mortgagee in possession
Provided that if upon an application made by the landholder within one year from the commencement of this Act to the Tehsildar within whose jurisdiction the land is situat ed a The Tehsildar declares that such person is not a tenant and his decision is not reversed on appeal or revision or b The Tehsildar refuses to make such declaration but his decision is reverted on appeal or revision such person shall not be a tenant
 Section 19 provides for termination of tenancy and so far as material it is as follows 19
Termination of tenancy 191 xxxxxxxxxxxx 192 The landholder may terminate a tenancy on the grounds that the tenant ai has failed to pay in any year within fifteen days from the day fixed under the Andhra Pradesh Telengana Area Land Revenue Act 13 17 F for the payment of the last instalment of land revenue due for the land concerned in that year the rent of such land for the year or 478 ii xxx xxx xxx xxx iii xxx xxx xxx xxx b has done any act which is de structive or permanently injurious to the land or c has sub divided the land or d has sub let the land or failed to culti vate the land e personally or has assigned any interest therein or f has used such land for a purpose other than agriculture Provided that no tenancy of any land by a tenant shall be terminated on any of the grounds mentioned in this sub section unless the landholder gives six months  notice in writing intimating his decision to terminate the tenancy and the grounds for such termina tion
 Section 28 provides relief against termi nation of tenancy for nonpayment of rent
Section 32 provides for taxing possession of tenanted lands 32
Procedure of taking possession 1 A tenant of an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply to the Teh sildar in writing in the prescribed form for such possession
2 No landholder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tehsildar for which he shall apply in the prescribed form
3 On receipt of an application under sub sec
1 of sub section 2 the Tehsildar shall after holding an enquiry pass such order thereon as he deems fit
479 4 Any person taking possession of any land or dwelling house otherwise than in accordance with the provisions of sub section 1 or sub section 2 as the case may be shall without prejudice to his liability to the penalty provided in sec
96 he liable to forfeiture of the crops if any grown on the land to the payment of such costs as may be awarded by the Tehsildar or by the Collector on appeal from the Tehsildar
 It will be convenient at this stage to read four other sections namely sees
34 37 38D and 38E
They are as follows Sec 34 omitting immaterial words provides Protected tenants 1 A person shall subject to the provisions of sub sees
2 and 3 be deemed to be a Protected Tenant in respect of land if he a has held such land as a tenant continuous ly i for a period of not less than six years being a period wholly included in the Fasli years 1342 to 1352 both years inclusive or ii for a period of not less than six years immediately preceding the 1st day of January 1948 or iii for a period of not less than six years commencing not earlier than the 1st day of Fasli year 1353 6th October 1943 and completed before the commencement of this Act and b has cultivated such land person ally during such period
 Section 37 is in these terms 37
Persons not entitled under sec
34 deemed in certain circumstances to be protected tenants 1 Every person who at the com mencement of this Act holds as tenant any land in respect of which no person is deemed to be a protected tenant under sec
34 shall on 480 the expiration of one year from such commence ment or the final rejection of all claims by any other person to be deemed under sec 34 to be a protected tenant in respect of such land whichever is later be deemed to be a protected tenant in respect of such land unless the landholder has before such expiration or final rejection as aforesaid made an application in the pescribed form to the Tehsildar for a declaration that such person is not a protected tenant Emphasis Supplied Section 38D reads Procedure when landholder intends to sell land to a protected tenant 1 If the landholder at any time intends to sell the land held by the protected tenant he shall give a notice in writing of his intention to such protected tenant and offer to sell the land to him
In case the protected tenant intends to purchase the land he shall intimate in writing his readiness to do so within six months from the date of the receipt of such notice
If there is any dis pute about the reasonable price payable by the protected tenant for the land the provisions of sub section 3 to 8 of sec
38 shall apply mutatis mutandis
2 If the protected tenant does not exercise the right of purchase in response to the notice given to him by the landholder under sub sec
1 such protected tenant shall forfeit his right of purchase of the same and the landholder shall be entitled to sell such land to any other person
On such a purchase by any other person the protected tenant shall forfeit all his rights in the land save those provided for in sec
 Section 38E provides Ownership of lands held by protected tenants to stand transferred to them from a notified date 1 Notwithstanding anything in this Chapter or any law for the time being in force or any custom usage judgment decree con tract or grant to the contrary the 481 Government may by notification in the Andhra Pradesh Gazette declare in respect of any area and from such date as may be specified therein that ownership of all lands held by protected tenants which they are entitled to purchase from their landholder in such area under any provision of this chapter shall subject to the condition laid down in sub section 7 of sec
38 stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands Provided that where in respect of any such land any proceeding under sec
19 or sec
32 or sec
44 is pending on the date so noti fied the transfer of ownership of such land shall take effect on the date on which such proceeding is finally decided and when the tenant retains possession of the land in accordance with the decision in such proceed ing
Explanation If a protected tenant on account of his being dispossessed otherwise than in the manner and by order of the Tehsil dar as provided in sec
32 is not in posses sion of the land on the date of the notifica tion issued hereunder then for the purpose of the sub section such protected tenant shall notwithstanding any judgment decree or order of any Court or the order of the Board of Revenue or Tribunal or other authority be deemed to have been holding the land on the date of the notification and accordingly the Tehsildar shall notwithstanding anything contained in the said section 32 either suo motu or on the application of the protected tenant hold a summary enquiry and direct that such land in possession of the landholder or any person claiming through or under him in that area shall be taken from the possession of the landholder or such person as the case may be and shall be restored to the protected tenant and the provisions of this section shall apply thereto in every respect as if the protected tenant has held the land on the date of such notification
 This then is the main structure of the Act
In sum   482 i The protected tenant has a right to become full owner of the lands in his possession
He becomes the owner when the Government issues a notification under section 38E
We are told that the Government had issued such a notification on October 1 1973 relating to the District where the lands in question are situated
It was about three years earlier to termination of the appellants  tenancy by the Association
If the appellants had a right to become owners of the tenanted lands the question of terminating their tenancy would not arise
ii The protected tenant cannot be dispossessed ille gally by the landlord or anybody else
If so dispossessed the Tahsildar either suo motu or on application must hold a summary inquiry and direct that the land be restored to the protected tenant
That is the mandate of section 38E and the Explanation thereof
iii The landholder by himself cannot dispossess the protected tenant even if the tenancy is terminated in ac cordance with the law
The landholder will have to take recourse to sec
He must approach the Tahsildar to hold an enquiry and pass such order as he deems fit
iv Section 38D prohibits the landholder from alien ating the tenanted land to third parties
If the landholder intends to sell the land he must give notice in writing of his intention to the protected tenant
The first offer must be given to the protected tenant
It is only when the pro tected tenant does not exercise the right to purchase the landholder could sell the land to this parties
The aliena tion made in contravention of these provisions has no legal effect
So return to the case
The contention of the Association that it is in defacto possession and entitled to symbolic possession is unavailable and indeed unnacceptable
First ly there cannot be any dispute in this case about the protected tenancy rights of the appellants
The revenue documents like Pananipatrika and final record of agricultur al tenancy clearly establish that the appellants were recog nised as protected tenants
Secondly it was not the case of the Association that Rev Rutar Ford Padri and Vundru Padri first offered the land to the appellants before they trans ferred the same to the Association
Therefore in the light of the statutory provisions to which we have called atten tion the appellants title cannot be said to be legitimate
Counsel for the Association also appeared to have antic ipated this inevitable result
He made an impassioned appeal for leave to 483 withdraw the original petition filed before the Tehsildar
He perhaps wanted to give quietus to these proceedings leaving the appellants free to agitate their rights else where
But we cannot agree with him
We cannot also accede to his request
The Association cannot be permitted to take advantage of its high handedness
It is an exploitation of the exploited
It is an oppression of the oppressed
The Court cannot contenance it
In the result we allow the appeals
In reversal of the impugned orders we direct the Tehsildar to put the appel lants in possession of the agricultural lands in question within one month
The appellants however are not interested in taking possession of their lands covered with buildings of the Association
They want to be fair in spite of their tribulation
The lands covered with the buildings may therefore be excluded
The Association must pay the costs of the appellants which we quantify of Rs20000
The Collector is directed to ensure that this order is faithfully complied with by the concerned
RNJ Appeal allowed


Summary:
Under a Hire Purchase agreement entered into with the appellant a firm registered under the Partnership Act 1932 carrying on the business of hire purchase of automo bile vehicles Respondent No 1 hired the truck owned by the appellant under the agreement Respondent No 1 agreed to pay initial hire charge of Rs I0000 and certain monthly hire charges on due dates
On the failure of Respondent No 1 to pay the monthly hire charges after paying the initial hire charges and charges for one month the appellant filed a suit against Respondent No 1 and his guarantor on July 22 1968 for the recovery of a sum of Rs 1342223 for breach of terms and conditions of the agreement
There was a change in the constitution of the firm on July 1 1967 with the retirement of two of the then part ners and addition of one new partner as also admission of two minors to the benefits of the Partnership
This change was notified to the Registrar of Firms on August 28 1968 and was duly taken note of in the Register of Firms subse quently
Thus no notice of the change had been given to the Registrar of firms
The Trial Judge dismissed the suit as not maintainable in view of Section 692 of the Partnership Act 1932
Upholding this decision the High Court dismissed the appeal of the firm
Hence the appeal by special leave by the appellant firm
Dismissing the appeal the Court
HELD Sub section 2 of Section 69 of the Partnership Act lays down that no suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing were or had been shown in the Register of Firms as partners in the firm
487C In the present case the suit tided by the appellant firm is clearly 485 hit by the provisions of sub section 2 of Section 69 of the said Partnership Act as on the date when the suit was filed two of the partners shown as partners as per the relevant entries in the Register of Firms were not in fact partners one new partner had come in and two minors had been admitted to the benefit of the partnership firm regard ing which change no notice was given to the Registrar of Firms
Thus the persons suing namely the current partners as on the date of the suit were not shown as partners in the Register of Firms
Therefore the suit was not maintainable in view of the provisions of sub section 2 of section 69 of the Partnership Act 1932
487D E Although the plaint was amended on a later date that cannot save the suit