IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SIXTH DAY OF AUGUST, TWO THOUSAND AND TEN PRESENT THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.R.P.NO.4904 OF 2006 BETWEEN: TEEGALA NARAYANA REDDY AND FOUR OTHERS PETITIONERS AND B.BAL REDDY RESPONDENT THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.R.P.NO.4904 OF 2006 O R D E R Heard the respective counsels appearing for the parties. 2. This revision is filed against the order dated 22.7.2006 passed by the court of Joint Collector – II Rangareddy District in Case No.F2/3785/2005. 3. The petitioners claim to be the legal heirs of one late Teegala Shivaiah @ Shiva Reddy. The case of the petitioners is that Shiva Reddy is the protected tenant of agricultural land bearing Sy.No.359(old), corresponding to 121(new) in an extent of Acs.23-10 gts situate at Koheda Village, Hayathnagar Mandal, Rangareddy District. Their case is that after the death of Shiva Reddy, they being the lineal descendents, succeeded to the protected tenancy rights. Hence, they filed two petitions before the Deputy Collector and Mandal Revenue Officer, Hayathnagar, RR District, for grant of succession under Section 40 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short ‘the Act’) and for restoration of possession under Section 32(1) of the said Act. 4. By order dated 27.4.2004 in Proc.No.B/5085/2001, the Deputy Collector and Mandal Revenue Officer, granted succession to Teegala Narayana Reddy and Teegala Rangareddy. And by order dated 13.7.2004 in Proc.No.B/5085/2001 the Deputy Collector and Mandal Revenue Officer, ordered to restore the land to the petitioners i.e., protected tenants under Section 32(1) of the Act and the Mandal Revenue Inspector and Mandal Surveyor, were directed to handover the physical possession to the petitioners/protected tenants in the above survey numbers to an extent of Acs.17-10 gts., by conducting panchanama by following the due procedure and report compliance. 5. Aggrieved by the above orders of the Deputy Collector and Mandal Revenue Office, the respondents in the said petitions who claim to be the third party purchasers from the original landholders, filed two appeal before the Joint Collector-II Rangareddy District. The appeal filed against the grant of succession is in case No.F2/3785/2005 and the appeal filed against the grant of restoration of possession is in Case No.F2/3785/2005. The appellate authority heard both the appeals analogously and by common order dated 22.7.2006, set aside both the impugned orders dated 27.4.2004 and 13.7.2004 passed by the Deputy Collector and Mandal Revenue Officer. 6. Challenging the order passed by the appellate authority in case No.F2/3784/2005 dated 22.7.2006 in setting aside the succession granted by the Deputy Collector and Mandal Revenue Officer, the respondents before the appellate authority, who claim to be legal heirs of late Shiva Reddy, filed C.R.P.No.4910/2006 and this court by order 8.12.2006 dismissed the revision. The order is extracted as under: “There is no dispute or denial that under Section 40 of the Andhra Pradesh (Telangana Area) Tenancy & Agricultural Lands Act, 1950 (the Act, for brevity), the jurisdictional Mandal Revenue Officer cannot grant succession to the persons claiming to be the lineal descendants to a protected tenant. In that view of the matter, order of the Joint Collector dated 22/07/2006 impugned in this Civil Revision Petition in so far it relates to setting aside the order of the Mandal Revenue Officer 27/04/2004 passed under Section 40 of the Act does not warrant any interference. The Civil Revision Petition is accordingly dismissed. No costs.” 7. Now challenging the order of the appellate authority in Case No.F2/3785/2005 dated 22.7.2006 in setting aside the order of the Mandal Revenue Officer, in granting restoration of possession, the present revision is filed. 8. The operative portion of the impugned order is extracted as under for better appreciation: “In the instant case, the application for restoration is filed after long distance of time from the date of dispossession. The date of dispossession is lost in antiquity. Owing to such extraordinary length of time, third parties have emerged on the scene. The position of adversary might have changed. And the character and nature of the land too might have been fundamentally altered. Claim U/s 32 of the Act after long lapse of time is impermissible.” 9. The case of the petitioners as stated in the grounds of the revision and as contended by their senior counsel is that the 1st petitioner is the son of late T.Shiva Reddy and the other petitioners are the wife and sons of late T.Rangareddy, who is the other son of Shiva Reddy. Shiva Reddy is the protected tenant of the subject land as per the final record of tenancy. The original landholders of the subject land are K.Pulla Reddy, Laxmamma and Bhoodevamma. The protected tenant Shiva Reddy died sometime in the year 1964 and due to legal unawareness, his sons i.e., Teegala Narayana Reddy and Teegala Ranga Reddy, did not take legal steps for getting into the possession of the subject land. They filed petitions for succession and restoration of possession under Sections 40 and 32 of the Act before the Mandal Revenue Officer and both were allowed by orders dated 27.4.2004 and 13.7.2004 and under panchanama dated 30.8.2004, the petitioners were delivered the possession of the subject land. The respondent herein i.e., B.Bal Reddy is the purchasers from one Bennuri Ramesh, who in turn purchased from the prospective purchaser of the original landholders. He filed the appeals before the authority and the appellate authority by common order dated 22.7.2006 allowed the appeals and set aside the orders of the Mandal Revenue Officer. 10. The learned counsel for the petitioners contended that the appellate authority had recorded a categorical finding that the respondent being a purchaser from the landholder, is not having locus standi to file the appeal since the said sale transaction by landholder in favour of the third parties in respect of the protected tenant land, is contrary to provision in Section 38-D of the Act and also the law laid down by the Apex court in KOTAIAH V. THE PROPERTY ASSOCIATION OF THE BAPTIST CHURCHES (Pvt.) Ltd.,[1]. He stated that this finding of the appellate authority is well founded. He contended that when the respondent is found to have no locus standi, the appellate authority ought not have proceeded further and reversed the order of the lower authority ie., the Mandal Revenue Officer. He stated that challenging the finding of the appellate authority that the respondent has no locus standi, since his sale is hit by Section 38-D of the Act and contrary to the law laid down by the Apex court, the respondent has not preferred any revision before this court and hence the said finding has become final. He further submitted that the appellate authority further recorded a categorical finding that Teegala Shiva Reddy is the protected tenant of the subject land. He contended that this finding of fact recorded by the lower appellate authority, has also become final, since no revision is filed and hence sought this court to proceed on the basis that as per the tenancy records, Teegala Shiva Reddy was the protected tenant of the subject land. He submitted that there is no evidence on record to show that the protected tenant has ever surrendered his protected tenancy or that he was evicted by the land holders under Section 19 of the Act and hence it has to be construed that the protected tenancy shall continue despite the death of protected tenant. He contended that under Section 40 of the Act, protected tenancy is heritable to the lineal blood descendants. He stated that there is no dispute that the petitioners are the sons of late T.Shiva Reddy, since there are no rival claims by others and, therefore, they become protected tenants by operation of law. He submitted that Section 2(v) of the Act defines ‘tenant’ which includes a person who is deemed as a tenant under the Act. By virtue of Section 40 of the Act, the petitioners are the deemed protected tenants and hence their claim for restoration of possession under Section 32 of the Act, is valid in law. Therefore his contention is that when there is no dispute that the petitioners are the legal heirs of the protected tenant and they are eligible for inheriting the tenancy under Section 40 of the Act and as there is no determination of tenancy under Section 19, the finding of the appellate authority that “t is not known as to when the original protected tenant died, it is not possible to decide as to whether the protected tenancy has subsisted or not”; is erroneous. He stated that the protected tenancy will continue till the tenancy is surrendered or the tenancy is determined or tenant is evicted. Therefore, he submitted that the restoration of possession ordered by the Mandal Revenue Officer, to the sons of the protected tenant, is perfectly valid. He further submitted that the appellate authority held that the succession of protected tenancy and the restoration of possession should be claimed within reasonable time, since long lapse of time would create equities and introduce third party rights. He submitted that a Full Bench of this court in SADA v. TAHSILDAR, UTNOOR[2] held that there is no limitation or adverse possession against protected tenant. This view was approved by the Apex court in BODDAM NARSIMHA v. HASAN ALI KHAN[3] and MAN MOHAN v. MOHD. MOHINUDDIN ALIKHAN (DEAD) BY L.Rs[4]. He contended that the purchasers from the landholders, have no legitimate right and hence no equity in their favour, can be considered. 11. He contended that the proceedings under Section 32 of the Act for restoration of possession are different from the proceedings under Section 40 of the Act and a son of a protected tenant can directly apply for restoration of possession without seeking any succession from the Mandal Revenue Officer, because a petition under Section 32 can be filed either by the tenant or a deemed and as the sons of the protected tenant can be construed as deemed protected tenants, irrespective of the validity of the order of succession, they can seek for restoration of possession and the order of the lower authority in ordering restoration, ought not to have been interfered with by the appellate authority. 12. He further contended that since the reliefs under Sections 32 and 40 are distinct, the order of this court in CRP.No.4910/2006 dated 8.12.2006 does not come in the way of adjudicating the present revision, since in the said revision, only the aspect of jurisdiction of Mandal Revenue Officer to issue succession certificate was dealt with and hence the said judgment on the aspect of jurisdiction, will not operate as res judiata. In support of this contention, he relied on the judgment of the of the Apex court in MATHURA PRASAD v. DOSSIBAI[5]. 13. With these contentions, the impugned order was sought to be set aside. 14. On the other hand, the learned counsel for the respondent submitted that the original landholders of the subject land are K.Pulla Reddy, Smt. Laxmamma and Smt. Bhudevamma. The said persons sold part of the subject land to one Smt. Sarada Devi through registered sale deed on 19.8.1971 and thereafter she sold the land to different persona and one of such purchaser is Bennuri Ramesh and he in turn sold the land to the respondent in an extent of Acs.8-14 guts and after purchase, the respondent got the land plotted and sold to various purchasers after obtaining approved layout from the Government and the said purchasers are in peaceful possession and enjoyment of the said land. While, the petitioners who are having no title or right over the subject land, claiming to be legal heirs of late Shiva Reddy, filed applications for succession and for restoration of possession, without impleading the purchasers. He stated that the order of the appellate authority in setting aside the order of the lower authority in granting succession has become final, since the revision filed by the petitioners in CRP.No.4910/2006 was dismissed by this court on 8.12.2006. Therefore, he contended that when the petitioners have not established that they are the successors of late Shiva Reddy, they cannot seek for possession. He submitted that this court in SYED ABDUL MAJEED AND OTHES vs. JOINT COLLECTOR – II RANGA REDDY DISTRICT AND OTHERS[6] held that the competent civil court has to issue succession certificate and not the revenue authorities. Therefore, in the absence of any succession from the competent civil court, the petitioners cannot seek for possession. 15. He further contended that there are series of transactions starting from the year 1971 to 2003 and there is change of ownership of the property and from the material on record, it is not clear when Shivaiah is alleged to have been dispossessed as protected tenant and it is also not clear when he died and at this length of time, it is difficult to determine whether the protected tenancy subsisted. He stated that after a lapse of 30 years the revision petitioners approached the MRO for grant of succession and possession. Due to inordinate delay and lapse of time, there is change of ownership and third parties have emerged on the scene. Hence, owing to lapse of time, the restoration of possession to the revision petitioners under Section 32 of the Act, is not permissible and equities have arisen in favour of third parties. He submitted that the Apex Court in PONNAL NARSING RAO vs. NALLOLLA PENTAIAH AND OTHES[7] held that though no express period of limitation is provided for filing application under Section 32 of the Act, such applications have to be moved within reasonable time; that due to belated applications, the other side may stand adversely affected and it may have changed its position in the meantime, that equities have arisen in his favour and he may have spent large amounts on land by improving it. He stated that following the above judgment of the Apex Court (7 supra), this court in the judgments reported in DEVAVATHI NAMYA AND OTHES vs. GURUKUL TRUST, GHATKESAR AND OTHERS[8], BHEEMATI DAWOOD vs. MADICHETTY RACHAIAH AND OTHERS[9] and NOMULA RACHAIAH vs. GOLLA NARASIMHULU AND ANOTHER[10], held that the restoration of possession under Section 32 is an extra ordinary remedy available to the alleged protected tenants alone. Having regard to the typical nature of rights conferred upon an alleged protected tenant, through series of judgments, this court held that relief under Section 32 of the Act can be sought by the tenants and extended by the competent authority uninhibited by the ordinary law of limitation also. He stated when such is the status accorded to the right under Section 32 of the Act, it is the fundamental duty of the person claiming possession, that they should establish beyond any doubt that he is the alleged protected tenant. In the present case, there is no such proof filed by the petitioners herein and they failed to prove that when the protected tenant was dispossessed. He submitted that Hon’ble Court further held that as no express provision of limitation is prescribed under the Act, any application for restoration of possession must be made within a reasonable time. It is further held that the alleged protected tenant having been silent for a period of more than two decades during his lifetime, the alleged legal heirs of the alleged protected tenant cannot now claim possession, when there are series of events. He stated that there is no Protected Tenancy Register available with the office of the Mandal Revenue Officer and even in the pahanies, the name of late Shiviah does not appear anywhere. In order to substantiate this, they filed papers as additional documents in the revision petition. At this juncture it is to be noticed that when the said material is not placed before the lower appellate authority, the same cannot be considered in this revision. The learned counsel further submitted that in the absence of any documents, the applications cannot be maintained and the Joint Collector rightly rejected the contentions and set aside the orders of the Mandal Revenue Officer. He submitted that the appellate court having found that the alleged legal heirs of Shivaiah have slept over the matter for three decades and having regard to the factual matrix, the appellate authority rightly set aside the orders of the M.R.O. and the same does no call for any interference. With these averments, the revision was sought to be dismissed. 16. In view of the above rival contentions the following points would arise for consideration: 1. Whether the application filed for restoration of possession by the alleged legal heirs of protected tenant Shiva Reddy is bad, in view of long distance of time? 2. Whether the authority below is justified in observing that whether the protected tenancy subsists at this length of time, in the absence of any evidence to show that there was recovery of possession by determination of tenancy under Section 19 of the Act? 3. Whether the petitioners who are claiming to be the legal heirs of protected tenant Shiva Reddy can seek for restoration of possession? 4. Whether the present C.R.P.No.4904 of 2006 for possession, is maintainable in view of the dismissal of the C.R.P.No.4910/2006 dated 8.12.2006 with regard to succession? 17. The case of the petitioners is that they are the legal heirs of late Shiva Reddy, who is the protected tenant of the subject land and the said Shiva Reddy died some time in the year 1964 and they did not take legal steps for getting into the possession of the said land and hence filed the petition under Section 32 of the Act for restoration of the possession and the Mandal Revenue Officer by the proceedings dated 13.7.2004 rightly granted restoration of possession and the said order was executed under a panchanam dated 30.8.2004 and the possession was delivered to them. Their further case is that there is no dispute that the petitioners are the legal heirs of protected tenant and there is also no rival claim. The law of limitation is not applicable for filing application under Section 32 of the Act for restoration of possession. Therefore, they sought to set aside the impugned order. 18. On the other hand the vehement contention of the respondents is that there is no material on record to show that the petitioners are the legal heirs of protected tenant Shiva Reddy and when they failed to establish that the petitioners are the protected tenant, they cannot seek restoration of possession under Section 32 of the Act. Their further case is that there is no P.T. register and the finding of the court below that Shiva Reddy is the protected tenant, is without any evidence and further there is also no material to show that when the alleged protected tenant was dispossessed and the lower authority without issuing any notice to the respondents or their lessees or their family members or the persons interested, by following the procedure as contemplated under Rules 14, 15 and 16 of The Hyderabad Tenancy and Agricultural Land Rules, 1950, proceeded to pass the order restoring the possession in violation of the Rules. Further the petition for restoration is filed after a long distance of time, whereby third party interests have emerged and equities have also emerged in their favour and, therefore, the order of the lower authority is null and avoid and the appellate authority has set aside the same and the same does not warrant any inference. 19. With regard to the 1st issue i.e., applicability of law of limitation, a Full Bench of this court in Sada’s case (2 supra) while considering the issue no.8 therein that whether the landholder can plead and prove adverse possession, before the Revenue Tribunals and authority, as against a protected tenant, held as under: “68. There is no provision in the Act dealing with adverse possession. The only provision dealing with ‘limitation’ is the one contained in S.93 of the Act which initially stated (before the Amendment by Act 2 of 1979) that every appeal or application for revision should be filed within 60 days of the order against which the appeal or revision is filed and that the provisions of the Limitation Act, 1903 applied only for the purpose of computation of the said period. After the amendment by Act 2 of 1979, it is now stated that the provisions of S.5 and Ss.12 to 24 of the Limitation Act, 1963, shall apply for the purposes of extension and computation. Again under S.29(2) of the Limitation Act, 1963 also, if the period prescribed by any special or local law for any suit, appeal or application, is, different from the one prescribed under the Limitation Act, 1963, the periods prescribed in those laws apply as if prescribed in the Schedule to the Limitation Act and, for determining any such period, the provisions of Ss.4 to 24 shall apply except to the extent included by the special or local law. Under S.28(2) of the new Limitation Act there is no provision making Art.65 and S.27 thereof applicable to special laws. Similarly, even under S.29(2) of the old Limitation Act, 1908, there is no provision making Art. 144 and S.28 thereof applicable to special laws. Thus, either under the new Limitation Act, 1963 or under the old Limitation Act, 1908, there is no possibility for the landholders to invoke either the plea of adverse possession (under old Art. 144 or new Art. 65) or the plea of extinguishment of any right (under old S.28 or new S.27) inclusive of the right of protected tenancy under the Act. The right of protected tenants to recover possession is uninhibited by any principle of adverse possession. 69. There is another strong objection to the plea of adverse possession set up by the landholders. It is to be noticed that the provisions of the Limitation Act (except those applied to special laws by force of S.28(2) of the new Act or S.29(2) of the old Act) are not attracted for enforcing rights before the revenue authorities or tribunals under the special laws. The provisions of the Limitation Act are applicable only to proceedings before Civil Courts. In a case arising under this very Act, the Supreme Court has recently restated this proposition. In Sakuru v. Tanaji, AIR 1985 SC 1279 Balakrishna Eradi J. stated: “. . . . . . . the provisions of the Limitation Act, 1963 apply only to proceedings in ‘Courts’ and not to appeals or applications before bodies other than ‘Courts’, such a quasi judicial Tribunals to executive authorities.” And their Lordships approved the judgment of M.Ramchandra Raju and B.P.Jeevan Reddi, JJ in K.Venkaiah v. IK.Venkateswara Rao, AIR 1978 Andh. Pra 166 where, in a case arising under this very Act, it was stated that the Limitation Act, 1963 did not apply to Tribunals and revenue authorities except to the extent permitted by S.28(2) of the Act. “70. The decision of the Supreme Court in Smt. Shakuntala S.Tiwari v. H.C.M.Singhania, (1987)2 SCJ 481: (AIR 1987 SC 1823) that provisions of the Limitation Act, 1963 applied to suits under the Bombay rents, Hotel and Lodging House Rates Control Act, 1947 is clearly distinguishable because the case clearly related to suits. In fact, Ramaswamy, J. has recently held and, in our view, rightly, Ushanna v. Sambu Goud, (185)3 APLJ (HC) 32 that the plea of adverse possession cannot be raised under this Act against a protected tenant. We overrule the view expressed by the Division Bench in Narsaiah’s case (1979 (1) Andh WR 9HC) 23) that pleas of adverse possession are admissible against protected tenants. We do not also approve of the observations in Chennaiah’s case (AIR 1983 AndhPra 34) that the plea of adverse possession could be raised by the landholders before the revenue authorities or tribunals under the Act. Thus, there is no question of applying the principle of adverse possession either under the old Limitation Act, 1908 or the new Limitation Act, 1963 for contending