Venkanna v. Pichikuntal Buchamma

1. This Civil Revision Petition arises out of proceedings taken under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as ‘the Act’). The petitioners herein are the land-holders. The respondents are the protected tenants. The tenants filed an application under Sub-sac. (1) of Sec. 32 of the Act before the Tahsildar, Mahaboobnagar for possession of an extent of Ac 4.00 cents of land in S. No. 65 situated in the village of Pedda Darapalli, Mahaboobnagar District alleging that they are the protected tenants for the land covered by S. No. 65 measuring Ac. 13-22 guntas and they were cultivating the land for about 4 to 5 years as protected tenants and were in possession of the same, that while so they were forcibly dispossessed of Ac. 4.00 of land out of the total extent of Ac. 13-22 guntas and their possession of the same should be restored. The application was filed against three respondents (Land-holders) of whom the first respondent is the father and respondents 2 and 3 his sons. The two points which are now argued before me and raised by the respondents before the Tahsildar are that it is only respondents 2 and 3, namely, the sons are the pattadars for the land in question and the father, namely, the first respondent is not the pattarlar and if the first respondent, not being the landholder dispossessed the petitioners from the land the petitioners cannot get any relief against him under Section 32 of the Act and it is not true to say that the petitioners were forcibly dispossessed from the land but it is only the petitioners who have surrendered the possession of that Ac. 4.00 cents of land as a result of a compromise entered into between them. The Tahsildar dismissed the petition by holding that the tenants were not forcibly evicted but it is the tenants who have surrendered possession of the land to the landholders and the first respondent is not the landholder and if he has dispossessed the tenants from the land the remedy of the tenants is otherwise than taking proceedings under Section 32(1) of the Act.

2. Against the said order of the Tahsildar the tenants took the matter in appeal before the District Revenue Officer, Mahaboobnagar. The Revenue Officer in a short order found that under Section 32 of the Act a protected tenant is entitled to get possession against anybody and also respondent No. 1 is the father and respondents 2 and 3 are his sons only and their contention that the land in question had fallen to the share of the respondents 2 and 3 is not supported by any registered partition deed though in the Phani Patrika for 1961 the names of the respondents 2 and 3 are shown as pattadars and the rights of the protected tenants to have possession of the land cannot be restricted if the entries in the revenue records are changed. By finding this point alone in favour of the tenants without considering the further case of the landholders that it is a case of surrender and, not forcible dispossession of the tenants, the District Revenue Officer allowed the appeal. It is against this order of the District Revenue Officer the landholders have preferred this Civil Revision Petition. As regards the point whether the action taken under Section 32 of the Act is maintainable against the first petitioner, namely, the father even if he is considered to be a third party is covered by a Bench decision of this Court in Lingamiah…* v. Burra Yalliah…. . 1965-I An. W.R 348. wherein it was held that if a tenant in possession is forcibly dispossessed even by a third party (trespasser) he has a right to apply under Section 32 of the Act for summary eviction of the trespasser and the Tahsildar has jurisdiction to entertain, such a petition.

3. Then what remains to be considered is the point whether there was a voluntary surrender of the land in question in favour of the land-holders by the tenants and therefore the tenants cannot maintain a petition under Section 32 of the Act to recover possession of the land on the ground that they were forcibly dispossessed by the land-holders. From the order of the Tahsildar it appears that there was a surrender of the land is alleged by the land-holders. In the order of the Tahsildar he observed as follows:

“The Pleader for the defendant (Landholder) stated that the plaintiff (tenant) was never evicted forcibly he himself surrendered as per the compromise to an extent of Ac. 4.00 This fact was admitted by the plaintiff (tenant) in his deposition during the cross-examination by the pleader for the defendant”.

4. The learned counsel appearing for the tenants did not canvass before me the correctness of the statement made in the order of the Tahsildar that one of the tenants who gave evidence has admitted in his cross-examination that as a result of some compromise the tenants themselves have surrendered an extent of Ac. 4.00 cents of land which is the subject-matter of the present action. But what the learned counsel has argued before me is that as provided under Section 19(1) of the Act a surrender by a tenant to be valid must be in writing and should be admitted by the tenant before the Tahsildar and the Tahsildar should be satisfied about the good faith of the tenant in making the surrender and as admittedly in this case there was no written surrender it must be taken that there was no valid surrender and if that is so the tenants would be entitled to recover possession of the land as provided under section 32 of the Act. At this stage it will be convenient to read the two sections, 19 and 32 of the Act so far as they are relevant for the present purpose:

“S. 19(1) 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;

Provided that such surrender is made by the tenant in writing and is admitted by him before and is made in good faith to the satisfaction of the Tahsildar; or

Provided further that where the land is cultivated jointly by joint tenants or members of an undivided Hindu family, unless the surrender is made by all of them, it shall be ineffective in respect of such joint tenants as have not joined in the application for surrender, irrespective of the fact that the names of all the joint tenants are not mentioned in the certificate;

(b) by the landholder on a ground specified in sub-sec. (2)

(2) The landholder may terminate a tenancy on the ground that the tenant…

(a)(i) has failed to pay in any year within fifteen days from the day fixed under the Land Revenue Act for the payment of the last instalment of land revenue due I or the land concerned in that year, the rent of such land for that year: or

(ii) if an application for the determination of reasonable rent is pending before the Tribunal or the Collector under Section 17, has failed to deposit within 15 days from the aforesaid date with the Tribunal or the collector, as the case may be, a sum equal to the amount of rent which he would have been liable to pay for that year if no such application had been made; or

(iii) in case the reasonable rent determined under section 17 is higher than the sum deposited by, him, has failed to pay the balance due from him, within two months from the date of the decision of the Tribunal or the Collector as the case may be; or

(b) has done any act which is destructive or permanently injurious to the land; or

(c) has sub-divided the land; or

(d) has sub-let the land or failed to cultivate the land personally, or has assigned any interest therein; or

(e) has used such land for a purpose other than agriculture;

Provided that no tenancy of any land held by a tenant shall be terminated on any of she grounds mentioned in this sub-section unless the landholder gives, six months notice in writing intimating his decision to terminate the tenancy and the grounds for such termination;

Provided further that the tenancy of a tenant who

(a) is a female or a minor; or

(b) is subject to physical or mental disability or

(c) is serving in the Naval, Military or Air Forces of India shall not be determined ion the aground only that the land comprised in the tenancy has been sub-let by or on behalf of such tenant.

(3) (Not relevant for the present purpose)

“S. 32(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 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) (not relevant for the present purpose).

(4) (Not relevant for the present purpose).

5. In this connection it is necessary to refer to a Bench Decision of this Court in Veduruthala Seetharamamma v. Badnath Herija and another2. In that case there was a surrender of the land by the tenant to the landlord in the year 1953 though it was not in writing. The question arose whether such a surrender is ineffective and is of no consequence in view of the proviso to section 19(1)(a) of the Act. In the first place it was held in that case that she proviso does not render the surrender ineffective for the reason it was made before the amendment was inserted by the legislature in the Act, and prior to the amendment a surrender could be made without writing and accordingly it was not obligatory to the parties to reduce it to writing. The next question considered in that case is whether the surrender without the permission of the Tahsildar under Section 32(2) of the Act should be held unlawful. It was held that there is no obligation on the part of the landholders who had already obtained possession of the property by reason of the surrender by the tenant to resort to section 32 of the Act.

6. Section 19 of the Act deals with the termination of tenancy. It may be noted that it applies both to the protected tenants and ordinary tenants. Similarly section 32 also applies to all kinds of tenants. Sub-section (1) of Section 19 deals with how and when a tenant can terminate the tenancy. Sub-Section (2) of Section 19 deals with the circumstances in which the landholder may terminate a tenancy. From a reading of Sub-section (1) of Section 19 it appears to me that it is an enabling provision whereunder under certain conditions the tenant is enabled to surrender his rights to the landholder. This the tenant could do even as against the wishes of the landholder Similarly under Sub-Section (2) of Section 19 in certain circumstances the landholder is entitled to terminate the tenancy even as against an unwilling tenant.

7. Section 32 deals with the procedure of getting back possession. It was provided under Sub-section (2) of Sec. 32 that 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 from. In the decision referred to above it was held that;

“it is clear that section 32 should be invoked only to obtain possession of the property. That can have no application to a case where the landholder does not seek the assistance of the Court and where the tenant himself of his own accord puts the landholder in possession of the property. All that the Act contemplates is that forcible possession of the property should not be taken by the landholder from the tenant and it is only in compliance with the procedure prescribed in section 32 that possession could be taken. But in a case where the tenant surrenders possession to the landholder, it is not necessary of the landholder to apply for possession. Section 19 of the Hyderabad Tenancy Act which lays down the procedure for the termination of tenancy exempts the case of a surrender of the rights of the tenant to the land holder. It is, therefore, clear that there is no obligation on the part of the land-holder who had already obtained possession of the property by reason of the surrender by the tenant, to resort to section 32 of the Act”.

8. It appears to me that sections 19 and 32 of the Act would apply to cases where there was no mutual agreement between the landholder and the tenant in which case either the tenant or the land-holder can have his remedy as against the other by enforcing his right either to terminate a tenancy as provided under sec. 19 or to recover possession as provide under Section 32 of the Act. But in cases where the land holder and tenant, can agree between themselves mutually either with regard to termination of the tenancy or with regard to possession. I think their mutual agreement can be given effect to under law without resorting to the provisions contained in sections 19 and 32 of the Act.

9. In the present Case evidence shows that there is voluntary surrender of the land in question by the tenants in favour of the landholders as a result of some compromise entered into between them. With regard to such cases can it be said that it cannot have any legal effect because the requirements as contained. In section 19(1) of the Act with regard to termination of tenancy have not been complied with by the teats. As already mentioned by me above I think it is alright conferred on a tenant with regard to termination of tenancy even as against an unwilling landholder.

10. The rights of a protected tenant are not merely those of an ordinary tenant. The rights of protected tenant are heriditable. They can also exchange lands. A protected tenant also can mortgage or create a charge on his interest in the land as security for Government loans and in the event of his committing default in payment of such loans it is also lawful for the Government to cause his interest to be sold. Under these circumstances a question might arise whether apart from the provisions of the Act by mere oral surrender the interest of the protected tenant in the land can be extinguished. All these questions have not been argued before me. But the question is whether there can be valid surrender by a tenant in favour of the landholder without recourse to the requirements of Section 19(1) of the Act when there is no objection on the part of the land-lord. It appears to me that this question is of some importance and in the interests of the litigant public I think it is necessary that the matter be decided by a Bench. Accordingly I refer the case to a Bench for disposal.

11. This petition, having been referred to a Bench coming on for final hearing and upon hearing the arguments of Mr. Mahipathy Rao Advocate for the petitioners and of Mr. M. Ramamohana Rao, Advocate for the respondents, the Court delivered the following.

JUDGMENT

(Judgment of the Bench delivered by Chinnappa Reddy, J.)

12. Our brother Ramachandra Raju, J. thought that this case should be decided by a Division Bench. It has therefore come up before us.

13. The petitioners are landholders and the respondents are protected tenants of a certain land of the extent of Ac. 13.22 guntas in survey No. 65 in the village of Pedda Darepalli. The respondents filed an application before the Tahsildar under Section 32(1) of the Hyderabad Tenancy Act seeking to recover possession of Ac. 4.00 from which, they claimed, they had been forcibly dispossessed by the petitioners. The Tahsildar dismissed the petition on the ground that the respondents had not been forcibly dispossessed but they had themselves surrendered possession to the petitioners and therefore, they were not entitled to recover possession from the petitioners. On appeal, the District Revenue Officer held that the respondents were entitled to recover possession notwithstanding that they had themselves surrendered possession of the land to the petitioners as the conditions prescribed for termination of tenancy by surrender were not fulfilled.

14. In this Civil Revision petition under Section 91 of the Hyderabad Tenancy Act it is contended by the petitioners that under Section 32(1) of the Act a tenant can seek to recover possession of land of which he has been forcibly dispossessed, but not land which he has himself surrendered. The learned counsel for the petitioners drew our attention to a decision of Chandra Reddy, C.J & Srinivasa Chari J. in Seetharamamma v. Badnath Herija

15. Section 19(1) of the Hyderabad Tenancy and Agricultural Lands Act provides that notwithstanding any agreement or usage or any decree or order of a Court of law no tenancy 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 right to the landlord or (b) by the landholder on one of the grounds mentioned in sub-section 2 of Section 19. By an amendment a proviso was introduced in 1954 and it provides that a surrender made by the tenant must be in writing and must be admitted by him before the Tahsildar, who must be satisfied that the surrender is made in good faith. The proviso is obviously meant to protect the tenant against himself that is to say against succumbing to the wiles of a clever and persuasive landholder and surrendering his rights to him. Thus, Section 19 while prescribing bow a tenancy may be terminated also prescribes that the landholder and tenant cannot contract themselves out of the provisions of Section 19. Again section 19 while providing that a tenant may terminate the tenancy by surrendering his rights to the landlord, safeguards the tenant by insisting that the surrender must be in writing and that it must be admitted before the Tahsildar, who must be satisfied that it is bonafide. A tenancy cannot, therefore, be terminated by the tenant merely surrending and the landlord obtaining possession of the land. A tenant, who has merely surrendered possession without following the procedure prescribed by the proviso does not cease to be a tenant under the Hyderabad Tenancy and Agricultural Lands Act, his tenancy not having been terminated in accordance with section 19. If his tenancy is subsisting he is entitled to seek to be put back in possession. Sec. 32(1) enables a tenant entitled to possession of any land under any of the provisions of the Act to apply to the Tahsildar for possession. There is no warrant for holding that Section 32(1) is confined to cases of forcible dispossession only. Plainly, it extends to all cases of loss of possession by a tenant, however the tenant may have lost possession. The position in the present case is precisely that and the respondents are clearly entitled to recover possession.

16. The case of Seetharamamma v. Badnath Herija is not of any assistance to the petitioners. That was a case which arose before the amendment of 1954 by which the proviso was introduced. As section 19 then stood, termination of tenancy by mere surrender was permissible without the observance of any formalities. The learned counsel relied on the observations raids in connection with section 32(2). Section 32(2) says:

“No landholder shall obtain possession of any land held by a tenant except under an order of the Tahsildar”.

17. The learned Judges observed that the provision “can have no application to a case where the landholder does not seek the assistance of the court and where the tenant himself of his own accord puts the landholder in possession of the property”.

18. They further said “All that the Act contemplates is that forcible possession of the property should not be taken by the landholder from the tenant and it is only in compliance with the procedure prescribed in Section 32, that possession could be taken. But in a case where the tenant surrenders possession to the landholder, it is not necessary for the landholder to apply for possession. Section 19 of the Hyderabad Tenancy Act which lays down the procedure for the termination of tenancy exempts the case of surrender of the rights of the tenant to the land-bolder. It is, therefore clear that there is no obligation or the part of the landholder who had already obtained possession of the property by reason of the surrender by the tenant, to resort to section 32 of the Act”. As we said earlier, at that time section 19 had not been amended and there were no imperative conditions that had to be observed to make surrender effective to terminate a tenancy, while a mere surrender with no formalities to be observed was effective to terminate a tenancy prior to 1954 and could therefore be pleaded as a defence to a tenant's petition for possession under Section 32(1), it can no longer he so pleaded after 1954 without observing the conditions imposed by the proviso to Section 19(1)(a).

19. We are therefore, satisfied that the District Revenue officer was right in holding that the respondents are entitled to recover possession. The CRP is therefore dismissed with costs.