THE HON’BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.17816 of 2007 DATED: 16.09.2009 Between: Sri Katti Siddanna. .. Petitioner. And The Joint Collector, Mahaboobnagar District, And others. .. Respondents. ORDER: According to the petitioner, one Mallikarjunamma w/o. Sambasivappa, who is his ancestor, owned the land admeasuring Ac.9.13 gts. in Sy.No.105 and Ac.2.34 gts. in Sy.No.106 situated at Renivatla village, Maddur Mandal, Mahaboobnagar District, and, out of the said property, his father got right over the land to an extent of Ac.5.13 gts. in Sy.No.105 and to an extent of Ac.1.17 gts. in Sy.No.106, and, after the death of his father, he succeeded to the land to an extent of Ac.5.32 cents in Sy.No.105/A and Ac.1.43 cents in Sy.No.106/A, totally admeasuring Ac.6.75 cents and has been in possession and enjoyment of the same and also obtained Pattadar Pass Book and title deeds over the same. While so, the 3rd respondent along with two others, claiming that their father late Hanumappa was the protected tenant of the land in Sy.No.105 and 106 and, subsequent to his death, they inherited the same, submitted an application before the 2nd respondent-Mandal Revenue Officer, Maddur of Mahaboobnagar District, for mutation of their names in Record of Rights in respect of the said lands. Thereupon, the 2nd respondent has considered the application of the 3rd respondent under Section 40(1) of the A.P (T.A.) Tenancy and Agricultural Lands Act, 1950 (for short the ‘Tenancy Act’) and, by his orders dated 18.10.2005, ordered delivery of possession of the land admeasuring Ac.8.30 gts. and Ac.2.04 gts. in Sy.Nos.105 and 106 respectively, situated within the limits of Renivatla village of Maddur village, to the 3rd respondent with immediate effect. Aggrieved thereby, the petitioner filed appeal, under Section 90(1) of the Tenancy Act, before the 1st respondent-Joint Collector, Mahboobnagar District, and the 1st respondent, vide proceedings dated 18.05.2007, held that the proceedings initiated by the 2nd respondent is not in accordance with law, but however, since there were no merits in the plea of the petitioner, dismissed the appeal and remanded the matter to the 2nd respondent for conducting fresh enquiry about the genuineness of granting of succession to the 3rd respondent/legal heir of the protected tenant as per rules in force. Questioning the same, the present writ petition is filed. The petitioner contends that the certificate enclosed to the application of the 3rd respondent is not the ownership certificate issued by the Tribunal (Revenue Divisional Officer), exercising powers either under Section 38-A or 38-E of Tenancy Act, but however, the 2nd respondent, treating the said certificate as ownership certificate, entertained the application of the 3rd respondent under Section 40(1) of the Tenancy Act and, exceeding his jurisdiction and power beyond the scope of the application of the 3rd respondent, ordered for restoration of the lands to the 3rd respondent. Further, the legal heirs of original Protected Tenant must obtain a succession certificate by approaching the competent civil Court and then they can make an application in the prescribed form under Section 32(1) of the Act, for restoration of possession of the lands of the Protected Tenant, and, therefore, the 2nd respondent ought not to have entertained the application of the 3rd respondent under Section 40 of the Act. The petitioner also contends that the power to enquire into any application under Section 40 of the Tenancy Act shall be dealt with only by the civil Court, but not by the Revenue authorities, and in support of this contention, he relied upon the judgment in Syed Abdul Majeed and others vs. Joint Collector, Ranga Reddy (2006(5) ALD 348). Further, the 1st respondent, having held that the initiation of proceedings by the 2nd respondent is not in accordance with law, ought not to have dismissed the appeal and remanded to the 2nd respondent for conducting afresh enquiry, who has no jurisdiction to conduct any kind of enquiry in the matter. The petitioner, therefore, seeks to declare the orders passed by the 1st and 2nd respondents as null and void. A detailed counter affidavit has been filed by the 3rd respondent stating that, in respect of the property claimed by him, the petitioner has no right over the same. It is further stated that the 3rd respondent along with two others, in the capacity of the legal heirs of the protected tenant, submitted an application to the 2nd respondent on 19.02.2005, seeking mutation of their names in the Record of Rights in respect of the lands held by the protected tenant, since the rights of a protected tenants are heritable under Section 40 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950. It is further stated that there was no dispute and also no rival claim is made by any person with regard to the claims of the succession in respect of the heirs of the protected tenant and, as such, the plea taken by the petitioner that the claim under Section 40 of the Tenancy Act shall be dealt with only by a competent civil Court, but not the revenue authorities, is without any merit, and that the certificate submitted along with his application, evidencing that his father was the protected tenant of the property claimed by him, is sufficient for recording his name as successor of the protected tenant. It is also stated that, in fact, in the judgment in Syed Afzal Mohd. vs. Joint Collector-II, Ranga Reddy (2006(5) A.L.D., page 548), it was held that inter se dispute with regard to succession cannot be adjudicated by the revenue authorities, but the interest acquired in the land as a succession of a tenant can be entertained in the revenue records, after conducting a verification as per the rules. However, as the orders of the 2nd respondent in respect of restoration of possession were found to be not in accordance with law, the 1st respondent remanded the matter to the 2nd respondent for passing appropriate orders after conducting fresh enquiry, and, therefore, there is no illegality in the orders passed by the 1st respondent and the writ petition is misconceived. The 1st respondent filed a counter supporting the order passed by him. Heard the learned counsel on either side and also perused the impugned order and the material made available on record. On a detailed consideration of the matter, it is clear that the 3rd respondent has not submitted any application under Section 32 (1) of the Tenancy Act for restoration of the possession of the property in dispute, but the 2nd respondent, in the application filed by the 3rd respondent under Section 40 of the Tenancy Act, resorted to order restoration of possession. In such circumstances, the 1st respondent rightly remanded the matter to the 2nd respondent for fresh consideration and thus the appeal must be deemed to have been allowed. Thus, treating the order of the 1st respondent as that of allowing the appeal and remanding the matter to the 2nd respondent, it is made clear that the 3rd respondent is entitled to file an application under Section 32 (1) of the Tenancy Act, in appropriate format, as required under law, and on filing such application, the 2nd respondent shall consider the same along with the application under Section 40 (1) of the Act, which is pending for re-consideration on remand, after putting all the parties on notice, and decide the matter on merits within a period of three months from the date of receipt of a copy of this order. The writ petition is, accordingly, disposed of. No order as to costs. _____________ C.V.RAMULU,J 16.09.2009 Note: Furnish CC in one week Bo v v