1. As the Special Deputy Collector, Adilabad had reason to believe that the transfer of immovable property of an extent of Ac. 9-15 in Survey No. 48 in Kopargadh village. Utnoor Taluk, Adilabad District was made in contravention of sub-sec. (1) of sec. 3 of Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 (referred to in this judgment as the Regulation), a notice was issued to the petitioner to show cause why he should not be ejected from the said land. The petitioner objected to such ejection contending that the first respondent herein who was a tribal entered into an agreement with the petitioner on 15-2-1963 whereby he agreed to sell the land to the petitioner for a sum of Rs. 1,000/-. That amount was paid on that day itself and possession was taken from the first respondent. Thereafter, a regular registered sale-deed was executed on 24-3-1965. The Regulation was extended to the Telangana area only on 1-12-1963. As the petitioner had obtained possession under an agreement of sale long before that day, there was no contravention of the provisions of sec. 3 of the Regulation and he could not be evicted.

2. The Special Deputy Collector held that as the document dt/15-2-1963 was not registered it was not admissible in evidence. The only document which can be taken into consideration is the registered sale-deed dt/24-3-1965. As that sale-deed was executed subsequent to 15-12-3963 when the Regulation was extended to the Telangana area, the provisions of Sec. 3(1) of the Regulation were contravened and the transfer was null and void, and therefore, directed the petitioner to be ejected from the said land and possession restored to the tribal, the first respondent. The petitioner preferred an appeal to the Agent (District Collector, Adilabad). The District Collector held that on the day when the Regulation was extended to the Telangana area, the petitioner had no valid title to the land, as the alleged sale-transaction of 15-2-1963 was not registered. Reliance was placed upon Sec. 53-A of the Transfer of Property Act, by the petitioner, but the District Collector held that Sec. 53-A of the Transfer of Property Act does not come into play as there was no valid contract between the transferor and the transferee in as much as no permission for selling or buying was obtained from the competent authority under sec. 47 of the Hyderabad Tenancy Act, nor was any step taken to validate the transfer under sec. 50-B of the Act. He therefore, dismissed the appeal. In the course of the judgment he also remarked that if the petitioner had purchased the land as early as February, 1963 there was no reason why he should have deferred registration till March, 1965. He also pointed out that in the registered sale deed no mention was made of the sale of the suit land on 15-2-1963 and the registered sale deed does not corroborate the agreement of sale. Further, according to the Pahani Patrak for the year 1963-1964 the appellant was not in possession of the suit land. These observations would indicate that he was of the view that it was not made out that there was an agreement of sale in 1963 or that possession was handed over to the petitioner in pursuance of the agreement of sale though there is no express finding to that effect.

3. The petitioner has filed this writ petition praying for the issue of a writ of certiorari and quash the order of the Agent referred to above confirming the order of the Special Deputy Collector.

4. Sri N.C.V Ramanujachari, learned counsel for the petitioner contended that the petitioner had taken possession of the land in part performance of the agreement of sale d/15-2-1963 executed for valuable consideration. Therefore under Sec. 53-A of the Transfer of Property Act, he was entitled to continue in possession notwithstanding the fact that the said document was not registered. There was a valid transfer in his favour even before the Regulation was extended to the Talangana area on 1-12-1963. In the circumstances the mere fact that a regular registered sale deed was executed later on 24-3-1965 would not affect his rights. The transfer having been effected prior to the Regulation, sec. 3 of the Regulation has no application and the petitioner was not liable to be evicted. The fact that permission was not obtained under sec. 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Act would not affect the petitioner's rights which he acquired under sec. 53-A of the Transfer of the Property Act. I am unable to agree with the view expressed by the Agent (District Collector), that Sec. 53-A of the Transfer of Property Act cannot be relied on as there was no valid contract inasmuch as no permission for selling or buying was obtained under Sec. 47 of the Hyderabad Tanancy Act, nor was any step taken under sec. 50-B of the Act.

5. If, as a fact an agreement was entered into for valuable consideration and possession was taken in pursuance of the agreement, the transferee is entitled to invoke Sec. 53-A of the Transfer of Property Act. Under that provision the conditions necessary for making out the defence of part performance are that there is a contract to transfer for consideration immovable property, in writing, and the transferee in part performance of the contract takes possession of the property or being already in possession continues in possession in part performance of the contract. In this case, the case of the petitioner is that there was an agreement for valuable consideration and possession was taken in pursuance of that agreement even on 15-2-1963 and full amount was paid. Hence, the conditions laid down in sec. 53-A are fulfilled. It is no doubt true, that the defence of part performance is available only against the transferor or any person claiming under him. In this case, though show cause notice was issued by the Government, if was in fact issued on behalf of the transferor. If ultimately the sale is declared null and void, the Agent will pass a decree for ejectment against the transferee and give possession to the transferor. It is only if the transferor is not willing to take back the property or his whereabouts are not known, the Agent may order assignment or sale of the property to another tribal. In this case, the transferor is present and is a party to the proceeding. Therefore, the Agent is readily acting as the statutory agent of the transferor and is therefore a representative of the transferor within the meaning of sec. 53-A of the Act. Therefore, the transferee can rely upon the doctrine of part performance and take up the stand that there is a transfer in his favour even under the agreement d/15-2-1963. If so, the Regulation which came into force in the Telangana area only on 1-12-1963 will not affect the rights of a transferee under a transfer effected earlier. It is true that under sec. 3 the transfer is stated to be absolutely null and void notwithstanding anything contained in the enactment rule or law in force in the Agency tracts. But this section applies only to the case of a transfer made after the Act. If as I have observed, the transfer must be deemed to have been made prior to the Act, then this section can have no application.

6. Does the circumstance that no permission was obtained for the transfer under sec. 47 of the Hyderabad Tenancy Act make any difference? In Nathulal v. Phoolchand ((1969) 3 SCC 120 : AIR 1970 SC P. 546) the Supreme Court had to consider a case where no sanction of the Collector for the transfer of the property under sec. 70(4) of the Madhya Bharat Land Revenue and Tenancy Act was obtained. Notwithstanding that sanction was not obtained it was held that the doctrine of part performance was applicable as it was an implied condition of the contract that the transferor would secure sanction of the Collector to transfer. Relying upon this decision, the Mysore High Court held in Erramma v. Parwatamma (2) (AIR 1972 Mysore page. 121) that the fact there was no express condition in the agreement of sale that the vendor would undertake to obtain previous sanction of the Collector for the transaction under sec. 47 of the Hyd. Tenancy Act makes no difference to the application of the principles of Sec. 53-A of the Transfer of Property Act, because such an undertaking on the part of the vendor must be taken as an implied condition of the sale. This decision was followed in Mohd. Tahair v. S.K Ali (3) (AIR 1973 Mysore page 307) where it was held that defendants can raise the plea of part performance notwithstanding that sanction was not obtained under sec. 47 of the Hyderabad Tenancy Act. In an unreported decision of Madhava Reddy, J., in S.A 450 of 1970 dated 21-9-1972 he elaborately considered the question whether the possession of land delivered in pursuance of an agreement of sale entered into without obtaining prior permission under sec. 47 of the A.P (Telangana Area) Tenancy and Agricultural Lands Act can be protected by calling in aid Sec. 53-A of the Transfer of Property Act after the addition of sec. 50-B in the Tenancy Act. The same judge had earlier held in S.A 520/68 that though the transferee is debarred from the benefit of Sec. 53-A of the Transfer of Property Act because of the provision contained in sec. 47 of the Tenancy Act, that impediment having been removed by the deletion of those provisions the transferee was entitled to invoke the provisions of Sec. 53-A of the Transfer of Property Act. This view was upheld by the Division Bench in L.P.A 139/70 where it was observed that in view of the decision of a bench in Syed Jalal v. Targopal (AIR 1970 A.P 19) possession delivered even in pursuance of a valid agreement is unauthorised in view of sec. 47 of the Tenancy Act and the defence of part performance would not be available. Since sec. 47 was deleted the obstruction had been removed and the statutory right of defence under sec. 53A would be available to the defendant Madhava Reddy, J., also referred to the decision of the Supreme Court in Nathulal v. Phoolchand (Supra) and held that the defendants were entitled to invoke the doctrine of part performance notwithstanding that permission was not obtained under sec. 47. He further held that in any event after deletion of sec. 47 and the introduction of sec. 50-B the possession would be lawful and sec. 53-A of the Transfer of Properly Act would apply. The view expressed in the earlier bench decisions referred to in the judgment of Madhava Reddy, J., that possession is unlawful because permission was not obtained under sec. 47 may not be good law in view of the decision of the Supreme Court in Nathulal v. Phoolchand (Supra). In any event lam in agreement with the view expressed by Madhava Reddy that after the deletion of sec. 47 and introduction of sec. 50-B possession cannot be deemed to be unlawful and the doctrine of part-performance can be relied on.

7. The learned Government Pleader relied upon the decision of Chinnappa Reddy, J., in W.P No. 1509/73 d/10-6-1975 and of Gangadhara Rao, J., following that decision in W.P 131/75 etc. batch. In the first case, while holding that the writ petitions are liable to be dismissed on the simple ground that the petitioner did not choose to avail themselves of the right of appeal and there was no ground for interference on merits the learned judge also considered the question whether Sec. 53-A of the Transfer of Property Act was applicable. He was of the view that in view of sec. 3 of the Regulation which says that the regulation prevails over any provision contained in any enactment, rule or law in force, neither sec. 50-B of the Tenancy Act, nor Sec. 53-A of the Transfer of Property Act can be a valid answer to proceed for eviction under the Regulation. With great respect to the learned Judge I am unable to agree. If there is a transfer even prior to the coming into force of the Regulation, the Regulation will not have any effect on such transfer and sec. 3 being one of the provisions of the Regulation will equally have no application. In this connection it is to be noticed that even according to sec. 2(g) of the Regulation which defines transfer, transfer includes not only a sale but a contract relating to such properly in respect of such sale. Hence, even according to the Act, a Contract of sale would amount to a sale. The agreement of sale coupled with the delivery of possession which is effected long prior to the Act would entitle the transferee to rely upon sec. 53-A and the doctrine of part performance contained in that section. In the decision of Gangadhara Rao J., relied on by the Government Pleader it was observed that the agreement of sale was a regular sale after 1-12-1963 by a tribal to a non-tribal and is null and void. It was then stated that if the sale deed taken after 1-12-1963 were to fall to the ground I do not see how the agreement of sale taken before, that date would stand. With great respect to the learned Judge I am also unable to agree with this observation. The transferee is basing his rights on the prior agreement of sale coupled with the delivery of possession independently of the subsequent sate. Section 53-A gives him the right to rely upon the agreement and possession and it is not necessary for the transferee to rely upon the subsequent registered sale deed. The learned Judge also relied upon sec. 3 of the Regulation. I have already indicated my views on the effect of this section. Further, in either of these decisions no reference was made to the decision of the Supreme Court in Nathulal v. Phoolchand (1) in which it has been held that notwithstanding the absence of sanction under sec. 70(4) of the Madras Bharat Land Revenue and Tenancy Act, the transferee could rely upon the doctrine of part performance. That decision has been applied to the case of sec. 47 of the Hyderabad Tenancy Act in the two decisions of the Mysore High Court referred to above and also in the unreported decision of Madhava Reddy, J., I am inclined to agree with the view expressed in those decisions, especially as they referred to and followed the decision of the Supreme Court. In the result I am of the view that if in fact there was an agreement for consideration and possession was delivered in pursuance of that agreement before the coming into force of the Regulation, the transferee is entitled to rely upon the doctrine of the part performance in an application for ejection and he is not affected by the coming into force of the regulation after the agreement though it may be that the actual sale deed was registered after the regulation came into force.

8. The learned Government Pleader however argues that even assuming that this is the correct position in law, in this particular case the tribunal has held that in fact there was no agreement and no possession was delivered in pursuance of that agreement and hence sec. 53-A T.P Act is not applicable. I am inclined to agree with this submission. As I have stated earlier though there is no express finding to that effect the Agent has stated firstly that in the registered sale-deed no mention was made of the agreement d/15-2-1963 and the registered sale-deed, therefore does not coroborate the agreement of sale. This amounts to saying in effect that he was not prepared to hold that the agreement of sale was true. He further observed that for the year 1963-1964 the appellant was not in possession of the suit land according to the Pahanipatrak for that year. This means that he was of the view that he was not put into possession in pursuance of the agreement. Sri N.C v. Ramanujachari, learned counsel for the petitioner contended that having regard to the view expressed by the Agent that Sec. 53-A of the Transfer of Property Act does not come into play, the Agent did not apply his mind properly to the question of fact, whether there was an agreement and whether the petitioner was put in possession in pursuance of the agreement. I am not prepared to agree with this submission. A reading of the order which is impugned, shows that he not only held that sec. 53-A has no application, but addressed himself to the question of fact, namely, whether the agreement was true and possession was delivered? In this connection he also referred the circumstance that if really the petitioner had puchased the land as early as February, 1963 there was no reason why he should have deferred registration till March, 1965. In view of the conclusion that there was no agreement and no possession was delivered the petition has to fail. As I am taking a view different from that expressed by Chinnappa Reddi and A. Gangadhara Rao, J., I would have considered the request of the learned counsel for the petitioner to refer the matter to a Division Bench favourably had it not been for the fact that I am also holding that as a fact the agreement is not true and possession was not delivered and also because I am of the view that those decisions were arrived at without considering the decision of the Supreme Court in Nathulal v. Phoolchand (Supra) and the decision of Madhava Reddy, J., in S.A 450/70 which had been rendered earlier.

9. The writ petition is dismissed but in the circumstances without costs.