IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE FIFTH (5TH) DAY OF JULY, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRP No.3500 of 2009 Between: Gopu Chinamma & others …Petitioners And: Iqbal Ali & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.3500 of 2009 ORDER: This revision is directed against the order dated 30.04.2009 in Case No.D4/TA/8/2004 on the file of the Joint Collector, Adilabad, wherein, the said appeal filed by the first respondent herein, was allowed holding that the petitioners herein (respondents 2 to 7 before the Joint Collector), lost their rights as tenants and pattedar was entitled to retain possession of the subject land. The Tahsildar, Nirmal directed to enquire afresh as per field situation and take necessary action as per the provisions of the Act. 2. Heard both sides. Perused the record. 3. The petitioners herein filed an application before the Mandal Revenue Officer, Nirmal in No.A/1094/2004 seeking restoration of possession of Ac.1.28 guntas situated in Old Sy.No.1608 (New Sy.No.1789) in Nirmal town, stating that they were dispossessed by the present land holders. According to the petitioners, their father Gopu Muthanna was the protected tenant of the land and died leaving behind wife and five sons as legal heirs, who are the petitioners. They sought restoration of possession on the ground that as per Section 40 of the A.P. Tenancy Act, all rights of protected tenant shall be heritable and they do not surrender their rights. The Mandal Revenue Officer, Nirmal on verification of the original Protected Tenant Register for the year 1950, found that the name of Gopu Muthanna was recorded as protected tenant and therefore, by order dated 27.10.2004, the Mandal Revenue Officer, ordered restoration of possession of the subject land in favour of the petitioners herein, who are the legal heirs of the protected tenant. Aggrieved by the same, the first respondent herein filed an appeal in Case No.D44/TA/8/04 before the Joint Collector, contending that the first respondent’s father Mohd. Ikram Ali, purchased the land under registered sale deed dated 09.03.1949 and the name of the first respondent’s father was entered in the revenue records as pattedar and possessor and that after the death of his father, the first respondent has become owner and possessor. The first respondent further contended that he sold a portion of the land to third persons under various registered sale deeds and one of them Muppidi Venkataswamy constructed a residential house also. The first respondent alleged that the entries in the revenue records in respect of Sy.No.1789 were clandestinely changed by Gopu Mohan-6th respondent herein in collusion with a retired Patwari Narayana Reddy. He further alleged that the said Patwari, in furtherance of his clandestine design, changed the details in respect of old Sy.No.1608 in ‘MODI’ language. He further alleged that the Mandal Revenue Officer without giving reasonable opportunity and based on the tampered entries, issued impugned orders. According to the first respondent, subject land is not a protected tenant land at all and no enquiry was conducted regarding issuance of protected tenant certificate. He further alleged that the Mandal Revenue Officer has passed the impugned order after his retirement by putting ante-date. 4. The learned Joint Collector by impugned order dated 30.04.2009 allowed the said appeal observing that a perusal of the pahanies for the years 1955-56, 1956-57 and 1958-59, the name of Ikram Ali was shown as pattedar and possessor in respect of the subject land and that the name of Gopu Muthanna was recorded as cultivator for the year 1969-70 and the name of Ikram Ali and Gopu Muthanna were recorded as cultivators for the years 1970- 71 and 1971-72 and that there are some over writings in the cultivators’ column in the pahanies for the years 1973-74 and 1974-75 and subsequently, Gopu Muthanna was not in possession. The learned Joint Collector therefore held that the protected tenant was out of possession for 30 years. The learned Joint Collector further held that the claim of the petitioners herein seeking restoration of possession, filed after lapse of 30 years, is highly belated. The learned Joint Collector further observed that the petitioners herein (who are the respondents in the appeal before the Joint Collector) have sold away the land as plots by converting the same in to non-agricultural purpose and hence, the provisions of the Tenancy Act are not applicable, since the respondents have lost their rights as tenants due to execution of the registered documents. The learned Joint Collector allowed the appeal filed by the first respondent herein and held that the pattedar is entitled to retain subject land and the Tahsildar, Nimral, directed to enquire afresh as per the field situation and take necessary action. 5. Learned counsel for the petitioners would contend that the rights of the protected tenant in the land go along with the lands irrespective of who the land-holder pattedar was and on the death of the original protected tenant, his legal heirs are entitled to be in possession and in the event of their being dispossessed, they are entitled to seek restoration of possession. He would therefore contend that as the petitioners’ father Gopu Muthanna was found to be the original protected tenant, as legal heirs of Muthanna, the petitioners are entitled to seek restoration of possession and the orders of the Mandal Revenue Officer, Nirmal, directing restoration of possession ought not to have been interfered with in the appeal by the learned Joint Collector. He would further contend that there is no time limit prescribed for seeking restoration of possession and the protected tenant holds the land even though out of possession. 6. In support of his contention, he invited the attention to the decision in ‘Sada vs. The Tahsildar, Utnoor[1]’ wherein the Full Bench of this Court held that “a person ‘holds’ the land as protected tenant if he is still a ‘protected tenant’ on the notified date, though out of possession and as long as his right as protected tenant has not been determined by date of notification, in a manner known to the Act, he ‘holds’ the land as protected tenant, whether physically in possession or not”. It was further held that “for the vesting of the ownership of land ‘held’ by a protected tenant under section 38-E (1), it is not necessary that the protected tenant should have been in physical possession on the date of notification.” 7. He also relied upon the decision in ‘Dharvath Kotia vs. Joint Collector[2]’, wherein the Division Bench of this Court held that ‘the right of protected tenant to recover possession of lands uninhibited by any principle of adverse possession.’ 8. In ‘Boddam Narsimha vs. Hasan Ali Khan[3]’, the apex Court held as follows: “It is evident from section 38-E that the said section has been enacted for those protected tenants who are declared to be protected tenants and included in the Register prepared for that purpose. A person becomes a protected tenant when he is a holder on the dates or for the periods mentioned in sections 35, 37 and 37-A. Once a person becomes a protected tenant, he is entitled to an Ownership Certificate under section 38-E. In the case of Sada (supra) the Full Bench of the Andhra Pradesh High Court held that a person "holds" the land as protected tenant if he is still a protected tenant on the notified date i.e. 1.1.1973, though out of possession. As long as his right as protected tenant has not been determined by the date of Notification in a manner known to the Act, he holds the land as a protected tenant, whether physically in possession or not. For the vesting of ownership of land held by a protected tenant under section 38-E, it is not necessary that the protected tenant should be in physical possession on 1.1.1973. It is sufficient if he continues to hold the status of a protected tenant on the notified date, even if he is not in physical possession.” 9. In the above decision, the apex Court approved the decision of the Bull Bench in ‘Sada’s case (supra). 10. Learned counsel for the first respondent, on the other hand, would contend that the petitioners’ father Muthanna was never a protected tenant and the question of his legal heirs i.e., petitioners claiming rights as protected tenant in respect of the subject land does not arise and the entries in some of the pahanies showing Gopu Muthanna as cultivator for the years 1969-70 and 1970-71 are manipulated and got in to existence by the 6th petitioner herein in collusion with a retired Patwari Narayana Reddy, who was assisting the staff of the Mandal Revenue Office in making entries and that a complaint was also filed before Lok Ayuktha for taking necessary action regarding tampering of official records and the same was registered in Complaint Case No.1026/ 2004/B.2. He would therefore contend that as Muthanna himself was not a pattedar, the question of restoring possession to the petitioners who claims to be the legal heirs of Muthanna does not arise. 11. As seen from the impugned order of the Mandal Revenue Officer in File No.A/1094/2004, dated 27.10.2004, the restoration of possession of the petitioners was ordered on the ground that they are the legal heirs of Muthanna. The said order, which is brief and cryptic, reiterates the plea of the petitioners herein and grants relief and the same does not disclose that any enquiry was conducted to ascertain the truth or otherwise of the claim of the petitioners with reference to any revenue records. The order of the Mandal Revenue Officer does not record any finding to the effect that on verification of the relevant revenue records, it was found that Muthanna was the original pattedar and assumes that Muthanna was a protected tenant and the petitioners being legal heirs, are entitled for restoration of possession. The said order makes mention that the name of Gopu Muthanna was found recorded as protected tenant in the Protected Tenant Register for the year 1950. The first respondent herein contended before the learned Joint Collector that the entries in the Protected Tenant Register and the pahanies are all fabricated in collusion with the staff of the office of the Mandal Revenue Officer by the 5th respondent. The learned Joint Collector found that the name of Gopu Muthanna was recorded in the pahani for the year 1969-70 and his name along with the name of Ikram Ali was noted for the years 1970-71 and 1971-72 and that there were over writings in the cultivators column in the years 1973-74 and 1974-75 and subsequently, there were no entries in the name of Gopu Muthanna. He also found even in the years 1955-56, 1956-57 and 1958-59, the name of Ikram Ali was shown as pattedar and possessor over the subject land. Without conducting any enquiry to ascertain the genuineness or otherwise of the entries on the face of specific allegation of fabrication made by the first respondent herein, the learned Joint Collector proceeded to allow the appeal on the ground that the petitioners have sold the land by making plots and converting the same in to non-agricultural purpose and therefore, the provisions of the Tenancy Act are not applicable and further holding that the petitioners herein have lost their rights as tenants due to execution of the registered documents. Thus, on one hand, the learned Joint Collector held that the protected tenant was out of possession of the land for the last 30 years prior to the claim and on the other hand, he held that the petitioners herein lost their rights as tenants due to execution of the registered documents converting the land into plots. The petitioners would, therefore, contend relying upon the decisions referred to supra that when once Muthanna was found to be the protected tenant, the fact that they were not in physical possession is immaterial and they are entitled for restoration of possession, being the legal heirs of the original protected tenant. 12. The question as to whether or not, the petitioners, as legal heirs of Muthanna, are entitled for restoration of possession, would depend upon the finding on the question as to whether or not Muthanna was the original protected tenant at all. When the first respondent has specifically contended that Muthanna was never a protected tenant and the official entries in the revenue records in his name are result of manipulation and fabrication, regarding which a complaint was also lodged before the Lok Ayuktha, the authorities below ought to have conducted enquiry into the said aspect and record a finding as to whether or not Muthanna was a protected tenant and the entries in his name are genuine or not. Without conducting such enquiry in to the said basic question, restoration of possession in favour of the petitioners as ordered by the Mandal Revenue Officer and reversal of the same in appeal by the learned Joint Collector are both unsustainable. The impugned order of the Mandal Revenue Officer does not also disclose that any notice was issued to the first respondent herein and an opportunity of hearing was provided and any enquiry was conducted. The learned Joint Collector, having recorded certain findings, directed the Tahsildar, Nirmal, to enquire afresh as per the field situation and take necessary action. 13. In those circumstances, it is considered that both the orders passed by the Mandal Revenue Officer and the learned Joint Collector, are unsustainable and they are accordingly set aside and the matter is remanded to the Mandal Revenue Officer, Nirmal, to conduct full-fledged enquiry afresh in the matter by giving opportunity of hearing to both sides and ascertain whether or not Gopu Muthanna was a protected tenant at all and whether or not the entries appearing in the revenue records in his name are genuine or not and pass appropriate orders in accordance with law, on the application filed by the petitioners herein. 14. In the result, the civil revision petition is accordingly disposed of. No order as to costs. ____________________ G.V.SEETHAPATHY, J Date: 05.07.2011 bss [1] AIR 1988 AP 77 [2] 2006 (3) ALD 196 (DB) [3] AIR 2007 SC 1145