HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.10296 of 2007 Date : 27.07.2011 Between : Bokka Baskar Reddy. …..Petitioner And The Joint Collector-II, Ranga Reddy District & others. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.10296 of 2007 ORDER: This writ petition is filed, challenging the common order passed by the appellate authority, dated 02.12.2006, passed in Case Nos.F1/4847/2005 and F1/488/2006, in exercise of powers under Section 24 of the A.P. (Telangana Area) Abolition of Inam Act, 1955. 2. By the aforesaid order, the appellate authority has allowed the appeals preferred by respondents 3 to 5 herein and set aside the order of the Special Grade Deputy Collector and Revenue Divisional Officer, Chevella Division, dated 16.06.2005, passed in File No.L/798/2001. 3. Necessary facts in brief, are as under : The petitioner herein has filed an application in Form-I for grant of occupancy rights certificate under the provisions of the A.P. (Telangana Area) Abolition of Inam Act, 1955, in respect of land admeasuring Ac.0.13 gts., covered by Sy.No.37 of Turkapally village in Malkajgiri Mandal of Ranga Reddy District. It was the case of the petitioner before the said authority that the aforesaid piece of land was a Mafi Inam land and M/s.Yerra Sailoo, Venkaiah and Veeraiah were the Inamdars. It was stated that the land covered by Sy.No.37 adjoins the land covered by Sy.Nos.39 and 40, belonged to the petitioner and that his Late Father came in possession of the aforesaid land by way of lease as early as in 1928 and since then, he has been in possession till his death, and thereafter, the petitioner continued to be in possession of the said land. It is submitted that there was a well in Sy.No.40, and as there was no source of water for irrigating the land covered by Sy.No.37, the land in Sy.No.37 was being irrigated with the water source available in the land covered by Sy.No.40. It was also his case that the Inamdars have sold the land to the petitioner by executing unregistered sale deed, dated 02.02.1970, as such, he continued in possession on the date of vesting i.e. 01.11.1973. 4. The said claim of the petitioner was contested by respondents 3 and 4, stating that they have purchased the said land from the legal representatives of the pattadars on 24.04.1999 and the same was regularized on 29.03.2001, hence, the claim of the petitioner herein is invalid, and hence, requested to dismiss the application filed by him. 5. The husband of respondent No.5 also contested the claim of the petitioner stating that the father’s name of the petitioner found place in the revenue records for a short time and as he belonged to forward caste, having more than 100 acres of land, he is not entitled for any occupancy certificate. He also claimed adverse possession from 1970 onwards and requested to dismiss the claim of the petitioner. 6. The petitioner herein has filed documents, in support of his claim, namely, Sesala pahani for 1955-58, apart from pahanis for the years 1968-69, 1972-73 and 1975-76. Based on the claim of the petitioner, a preliminary inquiry was conducted by the Mandal Revenue Officer, who has submitted his report, stating that the land in Sy.No.37 admeasuring Ac.0.13 gts. of Turkapally village is classified as Mafi Inam land, recorded in the names of Yerra Sailoo S/o.Malladu, Veeraiah S/o.Sailoo and Venkaiah S/o.Balaiah, as Inamdars and the name of Sri Baggi Reddy (petitioner’s father) was recorded as an occupant. The Special Grade Deputy Collector and the Revenue Divisional Officer, Chevella Division, who is the primary authority for issuance of occupancy rights certificate under the provisions of the A.P. (Telangana Area) Abolition of Inams Act, 1955, has conducted an inquiry, and by an order dated 16.06.2005, passed in File No.L/798/2001, he has recorded a finding that the aforesaid piece of land is an Inam land and the petitioner has purchased it by way of an unregistered sale deed, dated 02.02.1970 and his father was in possession as evident from the Sesala pahani for 1955-58, and pahanis for 1968-69, 1972-73 and 1975-76, and thus, he has recorded a finding that the petitioner is entitled for occupancy certificate under Section 5(1) of the aforesaid Act, as Kabiz-e-Kadim. 7. Aggrieved by the order, dated 16.06.2005, passed in File No.L/798/2001, respondents 3 and 4 have preferred an appeal in Case No.F1/4847/2005, whereas, respondent No.5, who is the wife of Late Sri Satyanarayana, has filed an appeal in Case No.F1/488/2006 before Joint Collector-II, Ranga Reddy District. The appellate authority, by impugned common order, mainly on the ground that any alienation of Inam land subsequent to the date of vesting, is a nullity and transferees in such cases will not acquire any title to the property, held that the petitioner is not eligible to be registered as occupant. The appellate authority has also held that the occupancy certificate is ordered to be given to the petitioner after 32 years of vesting. The appellate authority, recording certain extracts of Sesala pahani for 1955-58, and pahanis for 1968-69, 1972-73 and 1975-76, has recorded a finding that the aforesaid land is converted to non-agricultural use, as such, grant of occupancy certificate is not permissible. While recording such findings, he has set aside the order of the Revenue Divisional Officer, Chevella Division, dated 16.06.2005, passed in File No.L/798/2001. 8. In this writ petition, it is contended by Sri K.Mahipathy Rao, learned counsel for petitioner that the father of the petitioner was in possession of the land in question from 1928 onwards by obtaining it on lease from the Inamdars and while continuing as such, he has died, and thereafter, the petitioner continued to be in possession and there is also an unregistered sale by the Inamdars in favour of the petitioner on 02.02.1970. It is submitted by the learned counsel that even de-hors the rights as purchaser under a sale deed, the petitioner is also entitled for grant of occupancy certificate as Kabiz-e- Kadim, as he established to be old occupant and the same is evident from the entries in various pahani patrikas. The learned counsel would contend that mere denial by itself, is no ground to reject the claim for grant of occupancy certificate and the appellate authority also erred in relying on a stray entry in the pahani for the year 2004-05, wherein, it is shown as plots. It is submitted by the learned counsel that in the absence of any valid conversion and approval from the competent authorities, the A.P. (Telangana Area) Abolition of Inam Act, 1955 will continue to operate and the valid claim of the petitioner cannot be defeated on such a ground. It is further submitted that even as of now, the land in question is an agricultural land, which is in possession of the petitioner, as evident from the copy of pahani patrika for the year 2005-06 of Turkapally village, which shows that Jowar crop was raised in the aforesaid piece of land. In support of his argument, the learned counsel has relied on judgments in Chama Narasimha Reddy and another Vs. Joint Collector, Ranga Reddy District[1], Defence Estates Officer, A.P. Circle, Secunderabad, Vs. N.Rani Bai and others[2], Anjali Devi and another Vs. Swamy Linga Swamy and another[3] and in the case of Ganapuram Bramaramba and others Vs. Anneparthy Anantharamaiah and others[4]. 9. On the other hand, it is argued by Sri N. Vijay, learned counsel appearing for respondents that the claim of the petitioner will not fit into any of the categories under Sections 4 to 8 of the A.P. (Telangana Area) Abolition of Inam Act, 1955, and in that view of the matter, there is no basis for the claim of the petitioner for grant of occupancy certificate. It is further contended by the learned counsel that even to claim as a Kabiz-e-Kadim so as to seek for issuance of occupancy certificate, the petitioner has not proved possession for a period of 12 years before the date of vesting, as defined under Section 2(e) of the aforesaid Act. The learned counsel would contend that even in the pahani for the crucial year i.e. 1972-73, it was recorded as a vacant land (padava) and the Inamdars were shown as Khatedars, as such, it cannot be said that the petitioner was in possession of the land on the date of vesting i.e. on 01.11.1973, for claiming occupancy certificate. Lastly, it is submitted that though the date of vesting was 01.11.1973, the petitioner has approached the authority in the year 2001, but there is no valid explanation for the abnormal delay for grant of occupancy certificate. In support of his argument, the learned counsel has placed reliance on the judgments in S.Rangaiah and others Vs. Collector, Medak and others[5], Hameed Joharan (dead) and others Vs. Abdul Salam (dead) by LRs. And others[6] and in the case of A.P.Punjabi Sabha, Hyderabad Vs. Joint Collector, Hyderabad District[7]. 10. Before I deal with the contentions advanced by the counsel on both sides, I deem it appropriate to refer to certain provisions of the A.P. (Telangana Area) Abolition of Inam Act, 1955. Under Section 2(e) of the Act, the word “Kabiz-e-Kadim” is defined. As per the said definition, Kabiz-e-Kadim means, the holder of Inam land, other than an Inamdar, who has been in possession of such land at the time of the grant of Inam or has been in continuous possession of such land for not less than 12 years before the date of vesting and who pays the Inamdar only the land revenue. Section 3 of the said Act deals with abolition and vesting of Inams and the consequences thereof. As per the said Section, notwithstanding anything to the contrary contained in any usage, settlement, contract etc., from the date of abolition of Inams, all Inams shall be deemed to have been abolished and shall vest in the State. Sections 4 to 8 of the said Act deal with registration of certain category of persons as occupants and Section 10 empowers the Collector to make an inquiry on such claims. Under Section 5 of the Act, Kabiz- e-Kadim is entitled to be registered as an occupant of an Inam land, which is in his possession. 11. In the instant case, it is to be noticed that the claim of the petitioner is that his Late father was in possession of the land in question from 1928 onwards. He has filed the copy of pahanis from 1955-58, 1968-69, 1972-73 and 1975-76, and also a Memo dated 16.12.2000, issued by the Mandal Revenue Officer, Malkajgiri, stating that certain copies of pahanis for some years cannot be issued, as they were in torn condition. Though there was some evidence on record, without examining such evidence in detail, the primary authority has recorded a finding that the petitioner has established his possession as a Kabiz-e- Kadim. The appellate authority, in the impugned order, without examining the crucial aspect on the claim of the petitioner as a Kabiz-e-Kadim, has set aside the order of the primary authority on the ground that purchase from the Inamdars by way of unregistered sale deed on 02.02.1970, is invalid. At this point of time, it is to be noted that if the claim of the petitioner fits into the definition of Kabiz-e-Kadim, merely on the ground that he has also claimed purchase of land by way of unregistered sale deed, dated 02.02.1970, the petitioner should not be deprived of registration as a Kabiz-e-Kadim, to which, he is otherwise eligible. From a perusal of the order of the appellate authority, it is clear that such a crucial issue has not been examined by the appellate authority while allowing the appeal filed by the unofficial respondents herein. Though there was some delay on the part of the petitioner in filing the application for grant of occupancy certificate, that delay itself cannot be the reason to refuse the claim of the petitioner. It is to be noticed that grant of occupancy certificate is only a recognition of pre-existing right, which is available to an occupant who was in possession of land as on the date of vesting i.e. on 01.11.1973. If a person is in possession of land as on the date of vesting and continued as such, he cannot be deprived of the occupancy rights certificate on the mere ground of delay, particularly in the absence of any prescribed rule contemplating any time limit for claiming such right. 12. Coming to the further finding of the appellate authority that the land in question is being used for non- agricultural purpose, it is apt to refer to the provision under Section 9(2) of the A.P. (Telangana Area) Abolition of Inam Act, 1955. Section 9 of the said Act deals with vesting of certain buildings and Inam lands used for non- agricultural purposes. Sections 9(1), 9(2) and 9(3) of the said Act read as under : “9 . Vesting of certain buildings and inam lands used for non-agricultural purposes :- (1) Every private building, situated within an inam shall, with effect from the date of vesting, vest in the person who owned it immediately before that date. (2) Where an Inam land has been converted for any purpose unconnected with agriculture, the holder of such land shall be entitled to keep the land provided that such conversion was not void or illegal under any law in force. (3) The vestings of private buildings or lands under sub-section (1) or (2) shall be subject to the payment of non-agricultural assessment that may be imposed by Government from time to time.” From a perusal of Section 9(2) of the Act, it is clear that if an Inam land is being converted for any purpose unconnected with agriculture, the holder of such land shall be entitled to keep the land, provided that such conversion was not void or illegal under any law in force. In this case, there is no clear finding from the appellate authority as to when the land was converted and whether due permissions were obtained from competent authorities for conversion of agricultural land into non- agricultural one. In the absence of recording any such finding, merely basing on the stray entry as plots in the pahani for the year 2004-05, the appellate authority has recorded a finding that the land is used for non-agricultural purpose, and hence, occupancy certificate cannot be granted. The legitimate claim for grant of occupancy certificate cannot be allowed to be defeated merely on the ground that the land is shown as non-agricultural land, without actual conversion. 13. In the judgment relied on by the learned counsel for petitioner in the case of Chama Narasimha Reddy (1 supra), a learned Single Judge of this Court has held that for determination of occupancy rights, 01.11.1973 is the date that has to be reckoned and all persons, who were in possession of the land as on 01.11.1973, falling in categories under Sections 4 to 8, are entitled for grant of occupancy rights certificate. In the case of Defence Estates Officer (2 supra), a Division Bench of this Court, interpreting Section 9 of the Act, has held that if any Inam land has been converted to any purpose unconnected with agriculture, the owner of such land shall be entitled to keep the land, provided that such conversion was not void or illegal under any law in force. Both the aforesaid judgments support the claim of the petitioner. 14. In the case of Anjali Devi (3 supra), and in the case of Ganapuram Bramaramba (4 supra), a learned Single Judge of this Court has explained as to when the doctrine of presumption backwards can be drawn. 15. The learned counsel appearing for the contesting respondents Sri N. Vijay, has relied on the judgment of a Division Bench of this Court in the case of S. Rangaiah (5 supra), wherein, a distinction is explained between a Kabiz-e-Kadim and a protected tenant. In the aforesaid judgment, it is held by the Division Bench that the term “Kabiz-e-Kadim” liberally means an old occupier, who is in continuous possession for not less than 12 years prior to the time of vesting. But, this Court is of the view that as there is no clear finding on this aspect, it is a matter, which requires re-consideration. Having regard to the facts of this case, the said judgment would not render any assistance in support of his argument. Reliance is also placed on the judgment of Hon’ble Supreme Court in the case of Hameed Joharan (6 supra), in support of his argument that the claim of the petitioner is a belated one and there is no reason or valid explanation for not claiming the occupancy rights certificate upto the year 2001, though notifications were issued in the year 1973. In the aforesaid judgment, while referring to certain provisions of the Limitation Act, while examining the limitation period for execution of a decree, the Hon’ble Supreme Court has held that lapse of time is a species for forfeiture of right. But, it is to be noticed that in the case on hand, the nature of claim differs, asmuch as in the instant case, petitioner is claiming occupancy right, which recognizes his possession on the date of vesting on 01.11.1973. In such an event, it cannot be compared with the cases of execution of decrees passed by Civil Courts, which are strictly governed by the provisions under the Limitation Act. In that view of the matter, this judgment will not render any assistance in support of his case. 16. Reliance is also placed by the learned counsel for respondents in the case of A.P.Punjabi Sabha (7 supra), in support of his argument that as much as the land is used for non-agricultural purposes, the authorities under the A.P. (Telangana Area) Abolition of Inam Act, 1955 cannot entertain an application for grant of occupancy certificate. But, as already discussed above, it all depends on the facts and evidence of each case whether the agricultural land is being used for non- agricultural purposes or not, and if so, whether such conversion is void, illegal or contrary to any laws applicable. In the absence of such a finding, this Court cannot accept the plea of respondents, based on the aforesaid judgment. 17. As much as this Court is of the view that both the authorities have not examined the relevant material on the claim of petitioner for grant of occupancy certificate, matter requires re-examination by the authorities. It is also to be kept in mind that the claim of the petitioner is that his Late father was in possession of the land in question from 1928 onwards and continued as such till his death, and thereafter, the petitioner continued in possession. In that view of the matter, the authorities are required to consider as to whether the petitioner did establish, by any cogent evidence, that he was in possession for not less than 12 years before the date of vesting, so as to accept his claim as Kabiz-e-Kadim, for issuance of occupancy rights certificate. At the same time, it is also to be noticed that if there is a defence from the respondents that the land is already used for non-agricultural purpose, same is required to be established by further evidence. In that view of the matter, I deem it appropriate to allow this writ petition and set aside the common order, dated 02.12.2006, passed by the 2nd respondent-appellate authority in Case Nos.F1/4847/2005 and F1/488/2006, as well as the order of the primary authority, dated 16.06.2005, passed in File No.L/798/2001, and remand the matter to the 2nd respondent-Revenue Divisional Officer, Chevella, for fresh consideration on the claim of the petitioner for grant of occupancy rights certificate, and to pass appropriate orders. As the claim of the petitioner is pending consideration from 2001 onwards, I direct the 2nd respondent to complete the inquiry and pass appropriate orders within a period of four months from the date of receipt of a copy of this order. The parties are entitled to lead further evidence, if any, before the said authority in support of their respective claims. It is needless to observe that the counsel as well as all the parties concerned, are to be given notices before passing appropriate orders. 18. The writ petition is allowed subject to the directions as indicated above. No costs. _____________________ R.SUBHASH REDDY, J 27th July 2011 ajr [1] 2007 (2) ALD 28 [2] 2011(3) ALT 108 (DB) [3] 1985 (3) APLJ (83) [4] 2004(2) ALD 718 [5] 1996(3) ALD 351 (D.B.) [6] (2001) 7 SCC 573 [7] 2004 (5) ALD 644