THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.3998 OF 2009 DATED: APRIL, 2009. Between 1.Harshavardhan Sethia and two others …Petitioners And 1.Pathiavath Chandriya @ Chandriya Lambada and 14 others. …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.3998 OF 2009 ORDER: Respondents 11 to 13 in F2/7057/2008, on the file of the Joint Collector, Ranga Reddy District, filed this revision under Section 91 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short ‘the Tenancy Act, 1950’) aggrieved by the order, dated 01-08- 2009. 2. Brief facts that are necessary for disposal of the present revision may be stated as follows; Katravati Hatya, Hamriya, Balram sons of Chandra and Katravati Bichya son of late Koval Sing, all residents of Akanpally village filed the petition before the Mandal Revenue Officer, Maheshwaram Mandal, Ranga Reddy District requesting to accept their Protected Tenancy Rights and delete the name of the Protected Tenant from the Protected Tenancy Register alleging that their father Chandriya Lambada was the protected tenant in Sy.No.20 admeasuring Ac.21.24 gts situated in Porandla village and the land to an extent of Ac.6.23 gts in Sy.No.70 situated in Akanpally village, that their father protected tenant died long back, that the petitioners have sold the above land to the third parties, that they are the legal representatives of the protected tenant, that the present pattadars have sold away the land to the present petitioners Smt.K.Satyavathi and V.S.Narayana Raju, C.H.Subhash Chandra Bose and K.V.S.Varma Raju, that they intended to surrender their tenancy rights in favour of the above persons having received an amount of Rs.40,000/- for relinquishing their protected tenancy rights. 3. Upon causing enquiry, the Mandal Revenue Officer, Maheshwaram Mandal held that the petitioners are the legal heirs of the protected tenant Chandriya Lambada and surrender made by the petitioners with their free will without any coercion and force and at present the lands are in possession of Smt. K.Satyavathi and others and therefore, the surrender petition has been accepted under Section 19 (1) of the Tenancy Act,1950 and ordered to delete the name of the protected tenant Chandriya Lambada from the original Protected Tenancy Register of Porandla village in respect of Sy.No.20,admeasuring Ac.21.24 gts and Sy.No.70, admeasuring Ac.6.13 gts out of total extent of Ac.17.27 gts of Akanpally village. Challenging the same, the appellants filed the appeal before the Joint Collector. The Joint Collector, Ranga Reddy District, vide impugned order, dated 01-08-2009, set aside the order of the Mandal Revenue Officer in file No.D/10/2005, dated 20-01-2005 and directed the Tahsilder, Maheshwaram Mandal to put the protected tenant in possession of the land admeasuring Ac.21.24 gts in Sy.No.20 of Porandla village of Maheshwaram Mandal. Further, the Revenue Divisional Officer was directed to issue ownership certificate to Pathiavath Chandriya @ Chandriya Lambada son of late Gundya. Challenging the same, the present revision is filed. 4. The present dispute is relating to the land to an extent of Ac.21.24 gts in Sy.No.20 of Porandla village, Maheshwaram Mandal, Ranga Reddy District. The revision petitioners said to have purchased the said land on 27-01-2005 and on 09-02-2005 through registered sale deeds from the land holders-respondents 12 to 15. Katravath Hatya and others-respondents 8 to 11 herein are the legal heirs of protected tenant Chandriya Lambada. They filed the application before the Mandal Revenue Officer, Maheshwaram Mandal, under Section 19 (1) of the Tenancy Act, 1950 for surrender of their rights in respect of the disputed land in favour of the then land holders-respondents 12 to 15. The Mandal Revenue Officer accepted to surrender by order in the proceedings No.D/10/2005,dated 20-01-2005 duly deleting the name of protected tenant, Chandriya Lambada from the original protected tenancy register. Respondents 1 to 5 filed application before the Mandal Revenue Officer under Section 32 of the Tenancy Act, 1950 on 19-12-2007 in file No.D/5002/2007 for restoration of possession claiming to be the owner of the property. That petition was closed on 05- 05-2008. Respondents 1 to 5 suppressing that fact, filed the appeal under Section 90 of the of the Tenancy Act, 1950 questioning the surrender order, dated 20-01-2005. 5. Now the point for determination is whether the order of the trial Court is correct, legal and proper? 6. Learned counsel appearing for the petitioners herein contended that the 1st respondent herein did not file any record to show that he was a protected tenant, that the appeal under Section 90 of the Tenancy Act, 1950 is barred by limitation as the appeal is not filed within 60 days from the date of knowledge , that the respondents 1 to 5 deliberately suppressed the order passed under Section 32 of the Tenancy Act, 1950, dated 05-05-2008, that the respondents were never found to be in possession of the land for the last 50 years, that the lower appellate authority ought not to have adjudicated the disputes between two individuals claiming to be the protected tenants, that the lower appellate authority exceeded its jurisdiction in directing the Mandal Revenue Officer to issue patta certificate without there being any evidence and hence, he prays to set aside the impugned order. 7. On the other hand, learned counsel appearing for the respondents herein contended that the legal representatives of late Chandriya Lambada have no right to surrender the land in question in as much as Chandriya Lambada is not admittedly the protected tenant in respect of Ac.21.24 gts in Sy.No.20 of Porandla village and therefore, the question of surrender by respondents 8 to 11 does not arise, that the father of the respondents 3 to 6 i.e.,Chandru @ Seetya was the protected tenant in respect of lands in Sy.Nos. 70, 87 and 94 of Akanpally village and the respondents 1 to 5 managed and sold away the land in Sy.No.20 to respondents 7 to 11, that the appeal is filed in time and there is no delay, that the father of the respondents 3 to 5 was never in possession and cultivation of land in Sy.No.20 and he was not a protected tenant, that the appellate Court after elaborate consideration of evidence on record, rightly directed the concerned Revenue Divisional Officer to issue ownership certificate to Pathiavath Chandriya @ Chandriya Lambada son of late Gundya and that order needs no interference by this Court. 8. This revision is filed under Section 91 of the of the Tenancy Act, 1950 on the following grounds: 1. The original appellate authority exercised jurisdiction not vested in it by law; or 2. That the original appellate authority failed to exercise jurisdiction so vested; or 3. In following the procedure or passing the order, the original appellate authority acted illegally or with material irregularity. 9. The first two clauses have no application to the present case in view of the fact that it is not a case of the counsel appearing for the parties that the original appellate authority failed to exercise jurisdiction or exercised jurisdiction not vested in it by law. Now it is to be seen whether the appellate authority acted illegally or with material irregularity. 10. Illegality can only mean an incurable irregularity, incurable because of prejudice leading to a failure of justice. The word ‘irregularity’ in common English parlance means and implies contrary to rule. Black’s Law dictionary 7th edition, 1999 at page 834, defines the word as ‘not according to rule and not regular, i.e., which stands contrary to rule. The word ‘material irregularity’ can mean omission to mention a certain thing required by the statute. 11. Under Section 19 (1) of the Tenancy Act, 1950, 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. 12. Tenant is defined under Section 2 (1) (v) of the Tenancy Act, 1950, which means an asami shikmi who holds land on lease and includes a person who is deemed to be a tenant under the provisions of this Act. Therefore, it must be shown by the respondents 8 to 11 that who are the legal heirs of late Chandriya Lambada to show that late Chandriya Lambada was the protected tenant in respect of the disputed land in question. Unless it is shown that Chandriya Lambada is the protected tenant, the question of surrender under Section 19 of the Tenancy Act, 1950 does not arise. The revision petitioners said to be the purchasers of the disputed land in question through registered sale deeds from respondents 12 to 15 who are the landholders to whom the legal heirs of late Chandriya Lambada, respondents 8 to 11 surrendered the land. The legal heirs of Chandriya Lambada admittedly residents of Akanpally village, Maheshwaram Mandal. Similarly, their father Chandriya Lambada is a resident of Akanpally village. The legal heirs of Chandriya Lambada have not filed any document before the Mandal Revenue Officer, Maheshwaram Mandal to show that a certificate under Section 38-E of the Tenancy Act, 1950 was issued in favour of Chandriya Lambada or after his death, to the respondents 8 to 11. That aspect of the case has not been decided by calling for the relevant record before the Mandal Revenue Officer by the respondents 8 to 11. On appeal, the first appellate authority held that the name of the 1st appellant is recorded in the final list of protected tenant after due enquiry in respect of the land admeasuring Ac.21.24 gts in Sy.No.20 of Porandla village of Maheshwaram Mandal and ownership certificate under Section 38-E of the Tenancy Act, 1950 was also prepared in his name vide No.B/486/LRE/75, dated 21-09-1975. As the 1st appellant and his family members were out of village for some time, that certificate was not handed over to the 1st respondent herein by the Revenue authorities. That aspect of the case has not been denied or disputed even by the revision petitioners herein. 13. As seen from the order of the lower appellate authority, the father of respondents 8 to 11 by name Chandru son of Seetya was the protected tenant over the land in Sy.Nos. 70, 87 and 94 of Akanpally village, Maheshwaram Mandal. On the death of Chandru son of Seetya, respondents 8 to 11 came on record and they were issued ownership certificate under Section 38-E of the Tenancy Act, 1950 vide No.B/390/LRE/75, dat5ed 21-08-1975. So, from the impugned order, it is clear that no ownership certificate under Section 38-E of the Tenancy Act, 1950 was issued insofar as the land in Sy.No.20 of Porandla village in favour of the father of the respondents 8 to 11. When Chandru son of Seetya was not a protected tenant in respect of the land admeasuring Ac.21.24 gts in Sy.No.20 of Porandla village and no certificate under Section 38-E of the Tenancy Act, 1950 was issued, respondents 8 to 11 would not derive any right, title and interest and the question of surrender of land in Sy.No.20 of Porandla village to the land holders-respondents 12 to 15 herein does not arise. 14. Learned counsel appearing for the petitioners herein relied on a decision reported in NOMULA RACHAIAH V GOLLA NARASIMHULU AND ANOTHER [1], wherein it was held thus: “Incidentally Section 38-E of the Act also had been relied on. It is no doubt true that the object with which Section 32 of the Act had been introduced cannot be totally ignored. Equally, at the same time, while conducting an enquiry, all the parties who can throw light relating to the factual matrix of a particular enquiry to be put on notice. When the actual date of dispossession and whether it is a case of voluntary surrender or whether it is a case of abandonment at the time of the grandfather, when these facts are not clear, definitely it may not be within the knowledge of the purchaser who came into the picture at a later point of time. In the absence of the original owners who sold the property in favour of the present revision petitioner-purchaser and without putting those parties on notice, conducting an enquiry and making an order of this nature in the absence of details and particulars, in the considered opinion of this court cannot be sustained. It is made clear that when the question of reasonableness to be appreciated, all the factors viz. , the bona fides of the parties, the conduct of the parties to be taken into consideration. In the light of the same, this Court is thoroughly satisfied that the impugned Order in the present civil revision petition cannot be sustained and the same was not made in accordance with law.” The above decision has no application to the present facts of the case in as much as the petition was not filed under Section 38-E of the Tenancy Act, 1950 for restoration of possession. 15. He also relied on a decision reported in S.VENKATA REDDY V JOINT COLLECTOR, R.R. DISTRICT, HYDERABAD [2], wherein it was held thus: “Rule 6 of the Rules deal with the determination of reasonable price. As per rule 4 of the Rules, a duty is cast upon the tribunal to take into consideration the tenancy records, if any, prepared and maintained under any other record of rights and revenue accounts and after holding or causing to be held summary enquiry in respect of the lands held by the protected tenants and their respective landholders, determine the extent of lands held or deemed to be held by the protected tenants and the extent of land held by the land holders on the date notified under Section 38-E of the Tenancy Act and the extent which the protected tenant is entitled to purchase from the land holder and prepare a provisional list in Form 1. The provisional list prepared together with a notice inviting objections thereto shall be caused to be published by the Tribunal by affixing a copy thereof on the notice board of the village or at any other conspicuous place. As per sub rule (3) the Tribunal shall after hearing objections received from any landholder, protected tenant or any other interested person, shall make such further enquiry and declare the provisional list as a final list and cause it to be published by affixing a copy thereof on the notice board of the village or any other conspicuous place.” It is not the case of the petitioners that provisional list prepared by the competent authority is not in accordance with law. Therefore, the above decision has no application. 16. On the other hand, learned counsel appearing for the respondents relied on a decision reported in SADA V THE TAHSILDAR, UTNOOR, ADILABAD DISTRICT AND ANOTHER [3] , wherein it was held thus: “When such procedure consistent with principles of natural justice has been laid down in the Rules, we fail to see how any question of hardship or injustice can legitimately remain even after the issuance of certificate under S.38-E (2) after following the said procedure. It is for that reason that the certificate if it has become final, becomes ‘conclusive evidence’ as stated in S.38 –E (2). All objections to the very grant of the certificate must be raised before it is granted or in appeals or revision and cannot be permitted to be raised at the stage of delivery proceedings under the new proviso to S. 38-E (2).” From the above decision, it is clear that the certificate issued by the Revenue Divisional Officer after following the due procedure has become final and conclusive evidence. 17. The 1st appellant is the son of one late Gundya. The father of the respondents 8 to 10 is one Chandru. Both are separate families and a categorical finding has been recorded by the lower appellate authority that father of the respondents 8 to 11 was never in possession and cultivation of the land in Sy.No.20 and he was not a protected tenant over the land. Furthermore, the original appellate authority has not served any notice to the respondents 1 to 3 and no proper enquiry was conducted. The original pattadar of the land in Sy.No.20 was one Narasimha Rao. Surrender was not accepted in favour of original pattadar, but respondents 8 to 11 surrendered their land in favour of respondents 3 to 5 who are the purchasers of the land. Under Section19 (1) of the Tenancy Act, 1950 tenant can surrender his rights to the landholder, but not to the purchaser. As seen from the record, the landholder of the land in question is one Narasimha Rao and the lands were not surrendered to Narasimha Rao. Furthermore, the impugned order would go to show that upon conducting enquiry, father of the respondents 1 to 4 i.e., Pathiavath Chandriya @ Chandriya Lambada was shown as protected tenant over the land in Sy.No.20, admeasuring Ac. 21.24 gts of Porandla village and as a matter of fact, his name was recorded in the final list and after due enquiry, ownership certificate was also prepared in his name vide No.B/486/LRE,75, dated 21-09-1975, but because the 1st respondent herein was not available in the village at that point of time, the certificate was not delivered to him by the Revenue authorities. Once a certificate is issued under Section 38-E of the Tenancy Act, 1950, the land has been transferred and vest in the protected tenant and thereafter, the protected tenant shall be deemed to be the full owner of the land. Therefore, the first appellate Court rightly held that in the absence of recording the name of the father of the respondents 7 to 11 as the protected tenant in respect of the land in dispute, respondents 7 to 11 cannot derive the right, title and interest as protected tenants after demise of their father and respondents 7 to 11 have not filed any document to show that their father’s name was included in the final list prepared as protected tenant in respect of the Sy.No.20 of Porandla village. When he was not shown as protected tenant in respect of the said survey number, respondents 7 to 11 would not derive any right, title and interest. Therefore, question of their surrender to the purchasers does not arise. On the other hand, the evidence on record would go to show that Section 38-E of the Tenancy Act, 1950 has been prepared in the name of the 1st appellant in the year 1975, but the only thing is certificate has not been handed over to the 1st respondent herein because he was out of village for some time. Therefore, after elaborate consideration of evidence on record, the first appellate authority rightly passed order and absolutely, there are no grounds to interfere with the same. Hence, the revision is devoid of merit and is liable to be dismissed. 18. Accordingly, the Civil Revision Petition is dismissed. No order as to costs. ------------------- K.C.BHANU,J DATED: APRIL, 2010 Hsd [1] 2009 (3) ALD 774 [2] 2003 ALT (2) 377 [3] AIR 1988 AP 77 FULL BENCH