THE HON’BLE SRI JUSTICE V.V.S. RAO WRIT PETITION No.26356 of 2001 07.9.2009 Between: Kota Somaiah, S/o.Guravaiah … Petitioner and Kota Venkaiah, S/o.Santhaiah And others … Respondents THE HON’BLE SRI JUSTICE V.V.S. RAO WRIT PETITION No.26356 of 2001 ORDER: Petitioner assails order of third respondent dated 19.5.2001 in Case No.C3/20182/2000, as illegal, arbitrary and for a consequential direction to set aside Occupancy Rights Certificate (ORC) issued by second respondent vide his Proceedings R.Dis.Case No.E/5004/96, dated 31.3.1997. The case of petitioner is as follows. The land admeasuring Acs.1.13 guntas in survey No.87 situated at Bejjikal village of Tripuraram Mandal in Nalgonda District, originally belonged to Kota Lachaiah, elder brother of father of petitioner, namely, Kota Guravaiah. Both the brothers lived as a joint family and after death of Lachaiah in 1960 petitioner’s father, Guravaiah, succeeded to petition schedule land. After death of his father in 1980, petitioner succeeded to property and enjoyed possession cultivating the same till 1990. He alleges that he leased out land to first respondent for rent of ten bags per acre for first crop and eight bags per acre for second crop. First respondent also owned land on the northern side of petitioner’s land. When first respondent committed default in paying rents after 1994-1995 and also refused to vacate the land, petitioner filed O.S.No.88 of 1996 on the file of the Court of Junior Civil Judge, Miryalaguda, for recovery of possession. First respondent filed written statement alleging that he was in possession of land as on 01.11.1973 and that petitioner and his father entered into agreement of sale with him on 14.12.1977 after receiving sale consideration and that he is in possession of the property. The suit was dismissed by Civil Court on the ground that it has no jurisdiction. During the pendency of suit, first respondent approached second respondent for grant of ORC under the provisions of Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 (the Act, for brevity). By proceedings dated 31.3.1997, second respondent issued ORC to first respondent. Petitioner alleges that second respondent did not give any notice and did not conduct any enquiry before issuing ORC. Raising these grounds, petitioner filed appeal under Section 24 of the Act, which has now been dismissed by third respondent by impugned order dated 19.5.2001. First respondent filed counter stating that petition schedule land belongs to two Kota families and that petitioner belongs to Peda Kota family. His father got Acs.0.26 guntas out of Acs.1.13 guntas. An extent of Acs.0.27 guntas belongs to China Kota family i.e., family of Kota Pentaiah, who is no more. After death of Pentaiah, his son Somaiah and after his death his wife Venkamma became owner of Acs.0.27 guntas. First respondent purchased this land on 01.11.1973 and petitioner and his father sold Acs.0.26 guntas under agreement of sale dated 14.12.1977. Petitioner failed to establish his case, and therefore, suit was dismissed. The allegations made by petitioner with regard to alleged enquiry conducted by second respondent and other grounds are denied. Petitioner filed reply affidavit reiterating petition averments and further contending that first respondent was never in possession and enjoyment of petition schedule land. Learned Counsel for petitioner contends that impugned order passed by Joint Collector is contrary to Section 2(d) of the Act. Nextly he contends that Joint Collector misdirected himself in observing that first respondent is successor in interest of inamdar entitled for ORC. Per contra, learned Counsel for first respondent and learned Assistant Government Pleader for Revenue (Telangana Area) submit that appellate authority verified the records and after recording findings of fact that as on the date of vesting i.e., 01.11.1973, first respondent was in possession of petition schedule land, and therefore, he was granted ORC under Section 8(1) of the Act. Section 8(1) of the Act reads as under. 8. Registration of non-protected tenant as occupant:-- (1) Every non-protected tenant shall, with effect from the date of vesting subject to Section 37 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 be entitled to be registered as an occupant of such inam lands in his possession as may be left over after the allotment under Section 4 which, immediately before the date of vesting, were under his personal cultivation and which, together with any lands he separately owns and cultivates personally, are equal to four and a half times the family holding. A plain reading of the provision would show that a tenant, who is not protected under Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, is entitled to be registered as occupant for inam land in his possession. Admittedly (as admitted by petitioner in paragraph 4 of the affidavit) first respondent is tenant of petitioner. Therefore, first respondent is certainly non-protected tenant entitled for ORC. Whether he satisfied conditions for grant of ORC i.e., being in possession of the land as on 01.11.1973? It is a question of fact as to whether a person is in possession of the land or not. The Joint Collector after verifying the records found that first respondent was in possession of land and it was also very clear from judgment and decree in O.S. No.88 of 1996 on the file of the Court of Junior Civil Judge, Miryalaguda. When these two things are satisfied, there is no infirmity in Joint Collector observing that first respondent is successor in interest of inamdar. Secondly petitioner is claiming entire petition schedule land whereas the case of first respondent is that petition schedule land belonged to two branches of Kota family and that he purchased Acs.0.27 guntas from one branch and the balance of Acs.0.26 guntas from petitioner’s branch remains uncontraverted. Learned Counsel for petitioner raised a submission that first respondent did not set up case that he purchased land under agreement of land. This issue raised by learned Counsel is not relevant at all. When the petitioner claimed ORC as inamdar, the burden lies on him to prove that he was in possession and in personal cultivation of petition schedule land as on 01.11.1973. As a finding of fact, Joint Collector found that petitioner was not in possession. Therefore, he is not entitled for ORC. On the contrary, Joint Collector found that first respondent was in possession of petition schedule land. Even according to petitioner first respondent was inducted into possession as a tenant, and therefore, it is probable that though he came to be inducted as a tenant, first respondent may have purchased petition schedule land as alleged by him. As observed supra, whether first respondent purchased land from two branches of Kota family is irrelevant when petitioner himself admitted in his writ affidavit that first respondent was inducted into possession as a tenant. Therefore, first respondent is non-protected tenant entitled to be registered as occupant under Section 8(1) of the Act. The writ petition is devoid of merits and is accordingly dismissed. ________________ (V.V.S.RAO,J) September 07, 2009 YS