TEEGALA NARAYANA REDDY & Ors. v. B.BAL REDDY

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.

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.

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 too might have been fundamentally altered. Claim U/s 32 of the Act after long lapse of time is impermissible.

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.

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 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.

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].

With these contentions, the impugned order was sought to be set aside.

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.

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.

In view of the above rival contentions the following points would arise for consideration:

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?

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?

Whether the petitioners who are claiming to be the legal heirs of for restoration of tenant Shiva Reddy can seek protected possession?

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?

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.

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.

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.

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 the revenue attracted authorities or tribunals under the special laws. The provisions of the Limitation Act are applicable only to In a case arising proceedings before Civil Courts. under this very Act, the Supreme Court has recently restated this proposition. In Sakuru v. Tanaji, AIR 1985 SC 1279 Balakrishna Eradi J. stated: for enforcing rights before

. . . . . . . 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 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 that the protected tenancy rights are lost or extinguished on that count (see S.A.547/81 and C.R.P.NO.3313/92 below).

The above Full Bench of this court has categorically held that plea of adverse possession is not available for landholders to contend that the protected tenancy rights are lost or extinguish on that count. The said view was noted with approval in the judgments of the Apex Court cited 3 and 4 supra.

A Division Bench of this court in DHARVATHKOTIA (DIED) PER L.RS. v. JOINT COLLECTOR AND ADDITIONAL DISTRICT MAGISTRATE, KHAMMAM DIST[11] following the above Full Bench of this court, held as under:

14. From a bare reading of the above, it is obvious that two aspects are relevant for the purpose of answering the present reference. Firstly; under Section 29(2) of the Limitation Act, 1963 there is no provision making Article 65 and Section 27 thereof, applicable to special laws, - in the instant case, the special law is the Act. Secondly, the right of protected tenant to recover possession of land is uninhibited by any principle of adverse possession. is a concept, which otherwise deals with the aspect of limitation.

‘Adverse possession’

Therefore from the above judgments of this court it is clear that law of limitation cannot be made applicable to recover possession of protected tenant under Section 32 of the Act.

The next contention of the respondents is that since the petition is filed after a long distance of time, third party interests have emerged and equities have also emerged and since the petition for restoration of possession is not filed within reasonable time, the restoration of possession to the petitioners cannot be ordered.

As already noted above, the law of limitation cannot be made applicable to the present Act and with regard to equities of the third parties, they have to plead and prove. In this connection it is necessary to look into the law laid down by the Apex Court in PONNALA NARSING RAO v. NALLOLLA PENTAIAH (7 supra) as under: far as “3. So the second contention concerned, it is true that through 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. It may be cause of such the other side may stand belated applications, adversely affected. It may have changed its position in the meantime. Equities may have arisen in his favour, he may have spent large amounts on land by improving it. But all these questions have to be pleaded and proved. Surprisingly, no such contention was ever canvassed much less tried to be proved on any equitable ground by the petitioner. “

From the above judgment of the Apex court it is clear that though no express limitation is provided for filing application under Section 32 of the Act, such applications for recovery of possession, have to be moved within reasonable time, because in the mean time equities may arise. It is further clear that such questions of equities have to be pleaded and proved by the party raising the ground of delay.

In the present case, from a reading of the impugned order of the appellate authority, it does not disclose any specific finding that because of delay in filing the application under Section 32 of the Act for restoration of possession, equities have arise and there is also no material placed on record. The appellate authority recorded a provisional finding that

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 scheme. 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.

Thus it is clear that the finding of the lower appellate authority is not certain and the further finding that restoration of possession under Section 32 after long lapse of time is impermissible; is contrary to the law laid down in the above extracted judgments of this court and the apex Court and hence such a finding cannot be sustained and the issue framed is answered in the negative.

Coming to the 2nd issue, certain facts are required to be noticed. The claim of the petitioners is that their father Shiviah is the protected over the subject land. The Appellate authority has categorically recorded a finding that

It is not in disputed that one Teegala Shivaiah is Protected Tenant in respect of the subject land in Sy.No.359 (old) corresponding to Sy.No.121 (new) as per the copy of Wasool Baqui and certificate U/s 35 & 37 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. It is conclusive proof of that the fact that the subject lands were under the protected tenancy.

From the above finding recorded by the lower appellate authority it is clear that Teegala Shivaiah is the protected tenant of the subject land. Challenging the said finding, the respondents did not prefer any revision. Therefore, this finding has become final and it is to be proceeded on the fact that the Shiviaha is the protected tenant of the subject land.

The respondents herein are the third party purchases of the tenancy land from the original owners. This issue has rightly been considered by the lower appellate authority. The said portion is worth extracting:

The appellant herein is neither the original landholder nor the protected tenant. The appellant herein claim to have interest in the appeal schedule property, having acquired title thereto by way of purchase through registered sale deeds during 1997 executed by the prospective purchasers from the pattedars through Registered sale deed no.13771/71 dated 19.8.1971 executed by 1. M/s K.Pulla Rddy, 2. Smt. Laxmamma S/o late K.Rama in 1971 to purchase Krishna Reddy and 3. Smt. Bhudevamma w/o late Narahar Reddy. It is not clear how the original pattdar could effect sale in favour of a third party when a protected tenancy subsisted in respect of the subject land. TheAP (TA) Tenancy Act, 1950 substantially circumscribes the alienation of lands by landholders to third parties where protected tenancy subsists. It is clearly laid down in Sec.38 of the Act that the protected tenancy has pre-emptive landholder’s interest in the land. In case a landholder intends to sell his rights in the land, he is required to first offer the same to the protected tenant. Only upon refusal by the protected tenant, the landholder is at liberty to alienate the same to third parties. In this case the appellants have not shown that these conditions were fulfilled at the time of alienation in their favour in If the conditions stipulated in the Act for 1971. alienation by landholder to third parties are not fulfilled, then the sale falls foul of the Act and the rights of parties who claim to have acquired rights under such sales would be of dubious validity. The persons who have acquired rights under such transaction would be treated as strangers to tenancy proceedings and will have no locus standi before revenue authorities in tenancy proceedings.

The respondents herein are the third party purchasers from the prospective purchases from the original owners and there is no martial on record that the landholders offered the land to the protected tenant to exercise his pre-emptive right and hence the lower appellate authority rightly held that the respondents have no locus standi. Further, it is to be noticed that the law is a beneficial legislation, which has to be interpreted in favour of the beneficiaries and in the present case, the respondents, who are the third party purchasers, cannot also claim equity, since their sale is in violation of the provisions of the Act.

The Apex Court in the decision reported in KOTAIAH v. THE PROPERTY ASSOCIATION OF THE BAPTIST CHURCHES (Pvt.) LTD., (1 supra), considering the sale of landholders in violation of Section 38(D) of the Act, held as under: “18. In sum . . . (i) . . . (ii) . . . . (iii) . . . (iv) Section 38(D) prohibits the landholder from alienating the tenanted land to third parties. If the landholder intends to sell the land, he must give notice in writing of his intention to the protected tenant. The first offer must be It is only when the given to the protected tenant. protected purchase, the landholder could sell the land to third parties. The alienation made in contravention of these provisions had no legal effect. tenant does not exercise the right

From the above judgment of the Apex Court it is clear that alienations made by the landholders in contravention of Section 38(D) of the Act has no legal effect. In the present case, there is no material on record to show that the landholders before alienation had given any notice to the protected tenant to exercise his pre-emptive right. Therefore, as per the law laid down by the Apex Court, the sale made by the landholders in favour of the prospective purchasers and from whom the respondent had purchased, has no legal effect and the lower appellate authority, as noted above, has rightly considered this aspect and held that the respondent has no locus standi.

It is to be noticed that when the respondents have no locus standi, the lower appellate authority ought not have proceeded further and ought to have relegated the parties to the civil court. But instead of doing so, it proceeded further. The said findings, which are recorded by the lower appellate authority, will be examined in the course of judgment.

As already noted above, the lower appellate authority has recorded a finding of fact that Shiviah is the protected tenant and this finding has become final, since the respondents, who are the third party purchases, did not file any revision challenging the said finding and they are seeking to challenge the same, in this revision, which is filed by the legal heirs of the protected tenant, and the same cannot be permitted.

The lower appellate authority held that there is no material on record to show whether the protected tenancy subsisted at the time of demise of the original protected tenant. This finding of the lower appellate authority is based on no evidence and without considering the relevant provision of the Act. Section 19 of the Act deals with termination of tenancy. Under Section 19, for termination of the tenancy, provisional and final notices are required and there is no material on record to show that proceedings under Section 19 have been initiated for termination of tenancy. When there is no material on record to show that tenancy has been terminated under Section 19, it has to be deemed that tenancy continued. Moreover, there is also no material on record to show that the protected tenancy had ever surrendered the tenancy. Therefore, the finding of the lower appellate authority that whether the tenancy subsisted or not as on the date of demise of the protected tenant, is without any basis.

The petitioners are the lineal descendents of the protected tenant and as per Section 2(v) of the Act, which defines ‘Tenant”, includes a person who is a deemed as a tenant under the Act and by virtue of the Section 40 of the Act, the petitioners are the deemed protected tenants and hence they are entitled under law, to seek for restoration of possession.

In view of the above and as the admitted fact is that Shiviah is the protected tenant and as there is no material on record show that the original protected tenant ever surrendered the land or that the proceedings under Section 19 of the Act have been initiated terminating the tenancy, it has to be held that the tenancy continued even after the death of protected tenant and the finding of the lower appellate authority in this regard, is without any basis and the same is liable to be set aside and the issue is accordingly answered in favour of the petitioners.

The next issue is whether the petitioners can seek for restoration of possession. The case of the petitioners is that they are the legal heirs and lineal blood descendents of protected tenant and hence as per law they are entitled to seek for restoration of possession.

On the other hand, the vehement contention of the respondents is that the succession certificate given by the M.R.O. has been set aside by the lower appellate authority and same has been confirmed by this court in the connected revision in C.R.P.No.4910/2006 and hence in the absence of any material to show that they are the legal heirs of protected tenant, they cannot seek for restoration of possession and in this regard, they relied on the judgment of a learned single Judge of this court reported in DEVAVATHI NAMYA v. GURUKUL TUST, GHATKESAR (8 supra).

In this regard certain facts need to be noted. The lower appellate authority has categorically recorded finding of fact that Shiviah is the protected tenant and the respondents herein are the third party purchases of the tenancy land from the land holders and hence they have no locus standi. This finding is being concurred by this court and challenging the finding of the lower appellate authority, the third parties did not choose to prefer any revision and in the revision filed by the petitioners against the order of the lower appellate authority, where under certain adverse findings are recorded, the respondents are seeking to contend that the petitioners are not the lineal descendents.

In fact, when the respondents have no locus standi to contest the appeals before the lower appellate authority, their dispute with regard to the legal heir ship of the present petitioners, is of no consequence. Disputing for the sake of dispute is of no use. The party disputing the fact, should have locus standi and in the present case, the respondents have no locus standi. Moreover, there are no rival claims from within or out side with regard to claim for tenancy and from the order passed by the Mandal Revenue Officer while granting restoration of possession, though notices have been issued calling for objections, no objections were received..

It is to be noticed that when there are no rival claims and all through their claim is that they are the legal heirs of the protected tenant and in the absence of any rival claims and in the absence of any rebuttal evidence and as the respondents have no locus standi, it has to be presumed that the petitioners are the legal heirs of the protected tenant and as already noted above, as per the provisions of Section 40 of the Act, the petitioners are the deemed protected tenants and entitled for restoration of possession under Section 32 of the Act, as laid down by the Apex Court in the above cited decisions relied on during the discussion on the issue no.1 that the law of limitation will not apply for filing applications for restoration of possession.

If there are disputes or rival claims, the matter has to be dealt with by the civil court and when there is no dispute and in the light of the admitted facts, the claim of the petitioners cannot be negatived on this count.

Under the Statement of the Objects and Reasons, published in Andhra Gaz., PartIV-A, Extraordinary, page 179 dated 14.8.1956, protections given to the tenants is stated. The relevant clauses are extracted as under for better appreciation: “1. In July, 1956, the Andhra Cultivating Tenants Protection Ordinance, 1956 was promulgated with a view to protecting the tenants who were then in possession from unjust eviction. The Ordinance will cease to operate at the expiration of six weeks from the commencement of the present session of the legislative Assembly. The Government have therefore decided to undertake legislation for replacing the Ordinance by an Act of the Legislature providing for more permanent measures of tenancy reforms.

2. . 3. . 4. In accordance with the recommendations of the Andhra Land Reforms Committee, the bill provides that the minimum period of all future agricultural leases shall be 6 years. All tenancies subsisting on the date of promulgation of the Ordinance and protected by such Ordinances, and all tenancies subsequently entered into upto the date on which the provisions of this bill come into force will, however, continue for a period of three years only from the commencement of the current agricultural year, or until their expiry in the normal course, whichever is later. The bill also provides that in the event of a change in the ownership of the land during the currency of a lease, the tenant shall be entitled to continue the tenancy on the same terms and conditions for the unexpired portion of the lease, and that, if a cultivating tenant dies, his widow and his lineal heirs shall have the option to continue the tenancy for the unexpired portion of the lease on the same terms and conditions on which the deceased tenant was holding. Provision is also made for the termination of the tenancy and eviction of tenants during the currency of a lease in case where, among others, the tenant has failed to pay the rent due, or has misused the land.

44. Therefore, from a reading of the above objects and reasons, it is clear that the Act has been promulgated in order to protect the tenants who are in possession from unjust eviction and under the Act procedure has been prescribed for taking possession.

At this juncture it is necessary to note Sections 32 and 40 of the Act and the same are extracted as under:

32. Procedure of taking possession (1) A tenant or an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply to the Tahsildar in writing in the prescribed form for such possession. (2) No landholder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tahsildar, for which he shall apply in the prescribed form. (3) On receipt of of an application under sub- section (1) or sub-section (2) the Tahsildar shall, after holding an enquiry pass such order thereon as he deems fit. (4) Any person taking possession of any land or dwelling house otherwise than in accordance with the provisions of sub-section (1) or sub-section (2), as the case may be, shall, without prejudice to is liability to the penalty provided in Section 96, be liable to forfeiture of the crops, if any, grown on the land to the payment of such costs as may be awarded by the Tahsildar or by the Collector on appeal from the Tahsildar.

40. Rights of protected tenant heritable:- (1) All rights of a protected tenant shall be heritable. (2) If a protected tenant dies, his heir or heirs shall be entitled to hold the tenancy on the same terms and conditions on which such protected tenant was holding the land at the time of his death and such heirs may notwithstanding anything contained in this Act, sub-divide inter se according to their shares the land comprised they have succeeded. to which tenancy (3) If a protected tenant dies without leaving any heirs, all his rights shall be extinguished. Explanation:--The following persons only shall be deemed to be the heirs of a protected tenant for the purposes of this section:-- (a) his legitimate lineal descendants by blood or adoption; (b) in the absence of any such descendants, his widow for so long as she does not remarry” (4) The interest of a protected tenant in the land held by him as a protected tenant shall form sixty per cent.

From a close reading of the above provisions, it is to be further noticed, as contended by the counsel for the petitioners that the proceedings under Section 32 of the Act for restoration of possession are different from the proceedings under Section 40 of the Act. 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 tenant. The son of a protected tenant is to be constructed as a deemed protected. Hence, irrespective of the validity of the order of the succession, the order restoring possession to the petitioners has to be held to be valid. Further from a perusal of the order of the lower authority i.e., the Mandal Revenue Officer dated 13.7.2004 it could be seen that notices have been ordered. The relevant portion is extracted as under for better appreciation: “After succeeding petitioners have filed a separate petition for restoration of possession U/s 32(1) of A.P.(T.A.) Tenancy and Agricultural Lands Act, 1950. the above rights, Accordingly, the petitioner is allowed and notices have been issued to all the concerned on 11.06.2004, while intimating the date of hearing on 19-06-2004, for filing objections, if any, in this matter.

From the above order of the lower authority it is clear that every care has been taken with regard to service of notice before ordering restoration of possession and hence the contention of the counsel for the respondent that no notice has been served, merits for rejection.

It is also brought to the notice of this court that pursuant to the order of the Mandal Revenue Officer granting possession, panchanama has been conduced and the land was delivered to the protected tenants.

For the foregoing reasons, it is held that the petitioners are entitled for restoration of possession under Section 32 of the Act.

The next contention of the respondents is that since the connected revision in C.R.P.No.4910/2006 is dismissed by order dated 8.12.2006, the present revision is not maintainable.

As already noted above, the two reliefs under Section 40 and under Section 32 of the Act are distinct. Further this court dismissed the revision on the ground that Mandal Revenue Officer has no jurisdiction to grant succession certificate. The well settled proposition of law is that the judgment between the same parties on the point of jurisdiction, will not operate as res judiata. The Apex court in the decision reported in MATHURA PRASAD v. DOSSIBAI (5 supra) held as under: “9. A question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit.”

In view of the above, it cannot be said that the dismissal of the C.R.P.No.4910/2006 on the ground of jurisdiction, will operate as res judiata for the present revision. Accordingly the issue is answered in favour of the petitioners.

For the foregoing reasons, the impugned order to the extent of rejecting possession to the petitioners is set aside and the order of the Mandal Revenue Officer dated 13.7.2002 grating possession petitioners, is restored.

The revision is accordingly allowed. No costs. AVS -------------------------------------- - 06 --08—2010