* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + C.R.P No.1935 of 2006 %17.2.2011 # N. Yellaiah and others. ….Petitioners. Vs. $ The Joint Collector, R.R District and others. …. Respondents. ! Counsel for the Petitioner: Sri V. Jithender Rao Counsel for Respondents: Sri S. Srinivas Reddy, Assistant Government Pleader for Revenue. <Gist : >Head Note: ? Cases referred: 1. 1960 ALT 494 2. 1971 (2) APLJ 267 THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.1935 of 2006 Date:17.2.2011 Between: N. Yellaiah and others ……….. Petitioners. And The Joint Collector, R.R. District and others. ……. Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.1935 of 2006 ORDER: This Civil Revision Petition is directed against the order dated 17.1.2005 passed in Appeal No.F2/706/2005 on the file of the Joint Collector-II, Ranga Reddy District, whereby and whereunder the order passed by the Mandal Revenue Officer, Medchal Mandal, Rangareddy District dated 9.7.2004 in proceedings pertaining to File No.B/1617/2001 has been set aside. 2. The brief facts of the case are as follows: The father of the petitioners late N. Pentaiah was the original protected tenant of Sy.No.93 measuring Acs.11-30 gts situated at Medchal Village and Mandal. It is not in dispute that one Subramanyam was the original landholder. The sons of late N. Pentaiah along with the sons of brother of late N. Pentaiah filed an application for grant of succession of P.T rights on 19.5.2001. Notices were issued calling for objections and they were served upon the concerned individuals in the prescribed manner and in response to those notices, the respondents 3 & 4 herein filed objection petitions mainly contending that they purchased the land Ac.11-38 guntas in Sy.No.93 in the year 1992 through registered sale deed and that they are in possession and enjoyment of the same. It is also their case that Nacharam Pentaiah the original tenant had voluntarily surrendered his tenancy rights in favour of the then landholder. The Mandal Revenue Officer verified the P.T Register of Medchal Village and found that N. Pentaiah was the protected tenant of Sy.No.93 admeasuring Ac.11-38 guntas, situated at Medchal Village and then having considered the proviso under Section 19 (1) (a) of the A.P. (Telangana Area) Tenancy And Agricultural Lands Act, 1950 (for short ‘the Act’) and holding that the surrender of tenancy must be in writing and admitted before the Tahsildar and there is no evidence in this case to say that late N.Pentaiah surrendered his tenancy rights as per proviso to Section 19 (1) (a) and further held that the tenancy rights are heritable and granted succession certificate in favour of the petitioners under Section 40 of the Act. Aggrieved by the same, the respondents 3 & 4 herein filed an appeal before the Joint Collector, Ranga Reddy District. The Joint Collector having considered sub-section 2 of Section 40 of the Act holding that the heirs shall be entitled to hold the tenancy on the same terms and conditions on which the said protected tenant was holding the land at the time of his death and this condition is not complied with since the entries in the Khasara Pahani reveal that the protected tenant was not in possession of the land in 1954-55 i.e during the year in which the Khasara Pahani was prepared and the only reasonable presumptions that can be drawn is that since the protected tenant seized to exist as a protected tenant, his name was not shown in Khasra Pahani for the year 1954-55. It was also observed though in the P.T Register, the name of N. Pentaiah is recorded, but it is only a mistake and correcting the entries in P.T register is only a ministerial act and therefore, the contention of the respondents 3 & 4 that the original tenant surrendered his rights is acceptable and accordingly allowed the appeal. Challenging the same, the present revision has been filed. 3. The learned counsel for the petitioners’ main submission is that the Appellate Authority has committed grave illegality in reversing the well considered order of the Mandal Revenue Officer. It is also submitted that the order passed by the M.R.O is inconformity with the provisions of the act and whereas the order passed by the Joint Collector is against the provisions of the Act. His main submission is that there is nothing on record to show that the original tenant surrendered his tenancy rights in the year 1951 and there is no evidence to show that showing the name of Pentaiah in P.T Register as protected tenant was a clerical mistake. In support of his contention, he has also relied on the judgment in the case between GAJULA BALIRAM KUMBI V. SHANKER SINGH [1]. He has also relied on the judgment in case between VENKANNA AND OEHRS V. PICHIKUNTAL BUCHAMMA AND OTHERS[2]. 4. Sri S. Srinivas Reddy, the learned counsel for the respondents 3 & 4 submitted that Khasara Pahanies prepared in Telangana area have great evidentiary value and the validity and that the entries made in the Khasara Pahani were specially made after due enquiry and once the name of the protected tenant is not found place in Khasara Pahani in 1954-55, it is clear that he was not in possession as on the date of the preparation of the Khasara Pahani and the only presumption that can be drawn is that the protected tenant had surrendered his rights to the original landlord. It is also his submission that prior to the amendment of Section 19 of the Act, which came into force w.e.f 4.2.1954 the oral surrender was valid and in view of the same, the only presumption that can be drawn is that the original protected tenant had orally surrendered his lands in favour of the original landholder. 5. The only point that arises for consideration is whether the impugned order is sustainable? 6. Section 35 (1) of the Act is as follows: 34. Protected Tenants: (1) A person shall, subject to the provisions of sub- sections (2) and (3), be deemed to be a Protected Tenant in respect of land if he- (a) has held such land as tenant continuously— (i) for the period of not less than six years, being a period wholly included in the Fasli years 1932 to 1942 (both years inclusive), or (ii) for a period of not less than six years immediately preceding the 1st day January, 1948, or (iii) for a period of not less than six years commencing not earlier than the 1st day of the Fasli year 1943 and completed before the commencement of this Act. (b) has cultivated such land personally during such period. sub-section 3 of Section 34 of the Act, a person who at the commencement of this Act is no longer in possession of land in respect of which he is deemed under sub-section (1) to be a protected tenant shall notwithstanding anything contained in that sub-section, not be deemed to be a protected tenant in respect of such land if— (b) he was evicted from such land in pursuance of a decree or order of a competent Court, or (c) such land is being cultivated personally by the landholder at least one year before the commencement of this Act, or after the land was surrendered to the landholder by the tenant or (d) a permanent structure has been built by the landholder on such land, or (e) such land has been permanently diverted by the land- holder to non-agricultural uses.” 7. Section 35 (1) of the Act is as follows: “(1) If any question arises whether any person, and if so what person, is deemed under Section 34 to be protected tenant in respect of any land, the landholder, or any person claiming to be so deemed, may within one year from the commencement of this Act, apply in the prescribed from to the Tahisldar for the decision of the question and the Tahisldar shall, after enquiring into the claim or claims in the manner prescribed declare what person is entitled to be deemed to be a protected tenant or, as the case may be that no person is so entitled. (2) A declaration by the Tahsildar that the person is deemed to be a protected tenant or, in the event, of an appeal from the Tahisldar’s decision such declaration by the Collector on first appeal or by the Board of Revenue on second appeal, shall be conclusive that such person is a protected tenant and his rights as such shall be recorded in the Record of Rights or, where there is no Record of Rights, in such village record as may be prescribed.” 8. It is not in dispute that after the Act came into force, a Register called as the ‘Tenancy Register’ had been prepared. It is not in dispute that the M.R.O., verified the protected tenancy register of Medchal Village and found the name of late N. Pentiah in the said register as protected tenant against Sy.No.93 admeasuring Ac.11-38 guntas. This means as on the date, when the Act came into force, N. Pentaiah’s name had been shown as a protected tenant. The settled legal position is that a protected tenant is deemed to be in possession of the land unless and until it is shown that he has been evicted from the tenancy land after following due procedure prescribed under the Act or the rules made thereunder. In view of this deeming provision, the protected tenant is deemed to be in possession of the land. 9. Sub-section 2 of Section 32 is relevant for the purpose, which is as follows: “No landholder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Thasildar, for which he shall apply in the prescribed form.” 10. There is nothing on record to show that the original landholder applied to the Tahsildar that the original protected tenant has surrendered his rights and that he was holding the land or that he came into possession of that land. As contended by Sri Srinivas Reddy, it is true that amendment of Section 19 (1) came into force w.e.f 4.2.1954 prior to that oral surrender by a tenant was permissible. 11. Section 19 (1) of the Act is as follows: “Notwithstanding any agreement or usage or any decree or order of a Court of law, but subject to the provisions of sub- section (3), no tenancy of land shall be terminated before the expiration of the period for which the land is leased or deemed to be leased otherwise than— (a) by the tenant by surrender of his rights to the landholder at least a month before the commencement of the year: Provided that such surrender is made by the tenant in writing and is admitted by him before and is made in good faith to the satisfaction of the Tahisldar ; or Provided further that where the land is cultivated jointly by joint tenants or members of an undivided Hindu family, unless the surrender is made by all of them, it shall be ineffective in respect of such joint tenants as have not joined in the application for surrender, irrespective of the fact that the; names of all the joint tenants are not mentioned in the certificate; 12. As far as the theory of oral surrender is concerned, there is nothing on record to show that there was oral surrender. If at all there was oral surrender in all probabilities, the original landholder K. Subramanyam would have certainly informed the same to the Tahsildar. Similarly, there is no record to show that when the original tenant died. Of course, the fact remains that the name of the original tenant is not found place in the Khasara Pahani for the year 1954-55. According to Sri Srivinas Reddy, the learned counsel for the revision petitioner, presumption has to be drawn that the prescribed tenant would have surrendered his rights prior to 4.2.1954. But, merely because the name of the protected tenant is not found place in Khasara Pahani for the year 1954-55, is it possible to draw a presumption that the protected tenant surrendered his tenancy rights orally prior to 4.2.1954. In the absence of any evidence to show that the original protected tenant orally surrendered his tenancy rights prior to 1954 and in the absence of any application submitted by the original landholder to the revenue authorities stating that the original tenant had surrendered his protected tenant orally, it appears that no such presumption can be drawn against the protected tenant, merely, because his name is not found place in the Khasara Pahanies prepared in the year 1954-55. Unless, it is specifically shown that the original protected tenant had surrendered his rights prior to the amended proviso of Section 19 of the Act came into force, which prohibits oral surrender and which envisages that the surrender must be in writing and it should be accepted by the Tahsildar, it cannot be said that the surrender was valid and took place prior to 4.2.1954. Of course, for drawing a presumption, there must be some evidence on record or there must be compelling circumstances to draw a just and reasonable presumption. 13. In First cited decision, it was held that once the name of the protected tenant is found in the records as protected tenant and once the tenancy certificate is issued by the Tahsildar under the provisions of the Act, which is conclusive evidence of the fact the holder of the certificate is entitled to be in possession of the property. 14. In Second cited decision, it was held that surrendering of his rights by a tenant to the landlord must be in writing and admitted before the Tahasildar and in the absence of which, the tenant can recover back possession under Section 32 (1) of the Act. 15. The Joint Collector ought to have considered that the original landholder did not inform the revenue authorities about the oral surrender. It is also not clear from the order of the Joint Collector as whose name was shown as possessor in the Khasara Pahani for the year 1954-55. It is also not shown whether the name of the original landholder was shown as possessor in Khasara Pahani. In the absence of any evidence to show when the original tenant surrendered his rights and when he died, the entries made in the protected tenancy register cannot be doubted. Once the P.T register shows that N. Pentiah was the original protected tenant, naturally, his heirs are entitled for succession certificate under sub-section 3 of Section 40 of the Act. In view of the same, the impugned order is liable to be set aside. 16. Accordingly, the Civil Revision Petition is allowed and the impugned order dated 17.1.2005 passed in Appeal No.F2/706/2005 on the file of the Joint Collector-II, Ranga Reddy District is set aside. No order as to costs. ______________________ Justice B.Chandra Kumar Date:17.2.2011 Note: L.R Copy to be marked. mrb [1] 1960 ALT 494 [2] 1971 (2) APLJ 267