1. The only point that arises for consideration in this revision by the declarant against the order of the Land Reforms Appellate Tribunal, dated 13-4-1977 in L.R.A No. 249/1976 is whether the lower Tribunals were right in holding that the claim of the protected tenants under Sec. 38-E of the Hyderabad Tenancy and Agricultural Lands Act need not be enquired into before determining the holding of the declarant under Sec. 5 of the A.P Land Reforms (Ceiling on Agricultural Holdings) Act, 1973.
2. It is the case of the declarant-petitioner herein that the lands covered by S. Nos. 15, 16, 28, 24, 41, 72 and 76 of Madharam Village, Hyderabad East, were in the possession of the protected tenants and that he had sold the same to them.
3. It is his further case that they had also acquired right to the transfer of ownership in their favour under Sec. 38-E of the Hyderabad Tenancy and Agricultural Lands Act. The Land Reforms Tribunal in its order dated 15-9-1976 while rejecting the declarant's plea that these lands were sold to them protected tenants, refused to go into the question whether the protected tenants had acquired rights, under Sec. 38-E of the Tenancy Act on the ground that no certificate was granted to them under Sec. 38-E of the Act. On appeal the Appellate Tribunal observed that the Lower Tribunal has examined this issue as required under Sec. 13 of the Ceiling Act and has held there protected tenants are not eligible and are not entitled to pattas under Sec. 38-E of the Tenancy Act in respect of the said survey numbers. Therefore, when it is clearly, held that there is no eligibility for the protected tenants it cannot now be argued before it that the protected tenants are entitled to pattas under Sec. 38-E of the Tenancy Act and that the area of the said survey numbers should be deleted from the petitioner's holding.
4. The Appellate Tribunal's finding is erroneous both on the question of fact and law. The Appellate Tribunal erred in assuming that the Land Reforms Tribunal had decided the claim of the objectors and that of the declarant that the protected tenants had acquired rights of ownership under Sec. 38-E of the Tenancy Act. In fact what all the original Tribunal held was that the sale was not proved. On the question of transfer of ownership under Sec. 33-E of the Act it held that the objection of the protected tenants could not be considered at that stage. The view of the Land Reforms Tribunal is wholly unsustainable in law. When it is claimed that certain protected tenants in possession of the declarant's holding have acquired ownership under Section 38-E of the Tenancy Act, it is incumbent under Sec. 13 of the Ceiling Act to determine the first instance “whether such land or part thereof stands transferred to the protected tenant under S. 38-E of the Act and if so the extent of the land so transferred”. After determining this, it is further incumbent upon the Tribunal “to exclude such land from the holding of such owner and including it in the holding of the tenant as if the tenant was the owner of such land for the purposes of the ceiling Act”. It cannot refuse to enquire into that claim, merely because no certificate under Sec. 38-E was already granted. When a claim is made in proceedings u/s. 5 of the Ceiling Act that a person in possession is a protected tenant and that land stood transferred to him under Sec. 38-E., it is obligatory for the Land Reforms Tribunal to make an enquiry u/s. 13 of the Ceiling Act and to determine (1) if any land is in the possession of the protected tenant: (2) if so, the extent of the land which stood transferred to the protected tenant under Sec. 38-E of the Tenancy Act; (3) to exclude such extent from the holding of the land holder and (4) to include it in the holding of the protected tenant as if he was the owner, it is not the case of the parties that earlier there was any determination of the rights of the protected tenants under Sec. 38-E with respect to the lands covered by the survey numbers referred to above. That being so, the assumption of the Appellate Tribunal that the original tribunal had determined such right is wholly baseless and unsustainable.
5. That apart, even if there was determination of the rights of the protected tenants by the original Tribunal under Sec. 13 of the Ceiling Act as assumed by the Appellate Tribunal, it was still open to the declarant who had preferred an appeal against that order to contend that the finding of the original Tribunal in this behalf was erroneous and deserved to be set aside. The Appellate Tribunal failed to exercise its jurisdiction in refusing to entertained and examine the dispute. The order of the Original Tribunal being subject to appeal the findings given by the original Tribunal could be canvassed before the Appellate Tribunal which had jurisdiction in this behalf to examine and decide both questions of law and fact.
6. A copy of the letter No. B/61.LRE/75 of the Land Reforms Tribunal, Hyderabad East Division, dated 19-5-1975 is produced before this court and it is stated that if the protected tenants in possession of S. Nos. 15, 16, 28, 24, 41, 72 and 76 were entitled to the transfer of ownership u/s. 38-E, a similar order as above, would have been made in their favour. But the fact that such an order has not been made does not establish that the rights of these protected tenants to the transfer of ownership under Sec. 38-E were considered and rejected by any competent Tribunal either under the provisions of the Hyderabad Tenancy and Agricultural Land Act or under Sec. 13 of the Ceiling Act. Unless and until they are considered and rejected, the claim of the protected tenants to whom rights have been transferred by virtue of the notification under Sec. 33-E cannot be deemed to have been rejected. They have to be determined one way or the other by the competent Tribunal before it is assumed that they have no such rights.
7. For the aforesaid reasons, the order of the original Tribunal as well as of the appellate Tribunal in respect of the lands covered by S. Nos. 15, 16, 24, 28, 41, 72 and 76 are set aside and the matter is remitted to the original Tribunal for enquiring into the question as to whether these lands are held by the protected tenants and whether the ownership of the lands stood transferred to them u/s. 38-E of the Tenancy Act, and if so what is the extent that should be excluded from the holding of the declarant and included in the holding of the protected tenants as if they were owners and determine the holding of the declarant on that basis. In all other respects, the order of the Appellate Tribunal is confirmed. The Civil Revision Petition is allowed to the extent indicated above. The matter is remitted to the Original Tribunal for fresh disposal in the light of the observations made above.
8. There will be no order as to costs. Advocate's fee Rs. 100/-.