Jaganmohan Reddy, J.:— This petition has been referred by our learned brother, Venkatesam, J., as raising an important question of law, viz., whether the provisions of the Tenancy Act are applicable to the case of a person who has dispossessed the protected tenant forcibly.
2. The petitioner was admittedly a protected tenant. The respondent herein is a person who has agreed to purchase the land from the owner pattadar, who according to him was in possession of the porperty, the same having been relinquished in his favour by the protected tenant under an oral agreement entered into in 1951 before the amendment to the Hyderabad Tenancy and Agricultural Lands Act came into force which made all such relinquishments invalid unless they were made in writing and before the Tahsildar. It is also averred by the respondent that unless the landlord was made a party, the petition was untenable. On the strength of this, the Tahsildar made the landlord a party.
3. The question of jurisdiction of the Tahsildar was urged before him, and the Tahsildar ruled that he had jurisdiction to inquire into the question whether, as alleged by the respondent, the tenant had surrendered possession to the landlord. As against this order, the respondent filed a revision petition before the Collector, but did not implead the land lord. The Collector held, following certain observations of Subba Rao, C.J (as he then was) in Sharfuddin v. Sama Yelluga . 1957 2 An. W.R 478. that since the petitioner alleged that the respondent was a trespasser, section 32 of the Act does not apply to him; it is only applicable to cases of landlord and tenant and not to third parties. In this view, he held that the Tahsildar had no jurisdiction to entertain the petition and consequently directed dismissal of the petition. Against that order, the petitioner filed a revision not only against the respondent but also against the landlord. The office took objection that since the landlord was not a party before the Collector, he cannot be made a party here. In those circumstances, the petitioner had to delete the name of the landlord from the array of parties. The respondent took an objection that no revision lies under section 98 of the Act, because it is only against orders passed in appeal that revisions lie. In the circumstances, when the matter came up before a Bench, Sri Madhava Reddy had intimated that he would ask for conversion of the revision petition into a petition under Article 227 of the Constitution and accordingly paid the deficit court-fee and sought our permission, to do so. We think that this is a fit case in which we should permit him. We accordingly do so.
4. The simple question in this case is whether the Collector was right in dismissing the petition of the tenant on the ground that his application was against a third party and cannot be entertained under the Tenancy Act. In order to test the validity of this order, it is necessary to examine the provisions of section 32 of the Hyderabad Tenancy and Agricultural Lands Act, which we give below:—
“(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 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 his liability to the penalty provided in section 96 be liable to forfeiture of the crops, if any, grown on the land and to the payment of such costs as may be awarded by the Tahsildar or by the Collector on appeal by the Tahsildar.”
5. Now this section confers a right upon a tenant or an agriculural labourer or artisan to the possession of certain land to which he is entitled. The foundation of the right is that he is entitled to possession. The section docs not say that such a tenant or agricultural labourer or artisan cannot present an application against a third party. If he is entitled to possession of the said land, he has the right to apply to the Tahsildar for being put into possession of the same. We cannot accept the contention of the learned Advocate for the respondent that since a person is descriebed as a trespasser or a third party, the Tahsildar ceases to have jurisdiction. If a tenant is in possession and he is forcibly dispossessed by some third party, the fact that he is entitled to possession of the same as against the third party who has wrongfully dispossessed him cannot be gainsaid and if that is so, he has a right to apply under this provision.
6. The Collector who lelied upon the decision in Sharfuddin v. Sama Yelluga misapplied the principle enunciated therein. Subba Rao, C.J (as he then was) at page 481, observed thus:
“The scheme disclosed by the provisions of the Act is to regulate the relationship between landholders and tenants and it does not affect the rights inter se between two persons setting up right of ownership to a particular land or a dispute between an owner and a trespasser or a person other than a tenant. But if a landholder seeks to take possession of a land from a tenant or a protected tenant, he can only proceed in the manner prescribed under the Act, i.e, file an application before the Tahsildar. If any question arises whether a particular tenant is a protected tenant, the exclusive jurisdiction to decide that question is also conferred on the Tahsildar. In such cases, the civil Court has no jurisdiction.”
7. In this case, as pointed out above, the petitioner was a protected tenant, and as such, it cannot be said that this is a dispute between an owner and a trespasser or a person other than a tenant. The judgment cited does not therefore justify the conclusion that the Tahsildar has no jurisdiction to entertain the application.
8. In Mohd. Hussain v. Gulam Khader Khan . 1963 2 An. W.R 339. a Bench of this Court to which one of us was a party, at page 333, observed thus:
“In these circumstances, it is idle to contend that there is no remedy provided by the Act for a protected tenant to recover possession from persons who are in possession of the land in cases where their possession is unauthorised.”
9. Thar apart, in this case the respondent has categorically stated that he is claiming the right to possession under the landlord and it is his averment that the petitioner has himself surrendered his possession peacefully and is therefore not entitled to possession. The question whether he has surrendered possession or not is a question which will have to be determined by the Tahsildar. There is, in our opinion, no force in the contention that the quescion of jurisdiction should only be determined upon the averment in the petition. In so far as the petitioner is concerned, he is not aware as to what is the right, title or interest of the respondent and consequently all he could say is that, he was forcibly dispossessed. It is only in answer to this allegation that the respondent had disclosed his right to possession, namely, that he has purchased it from the landlord, that he entered into an agreement, that he has applied for permission under section 47 of the Act and that he was inducted into possession by the landlord and that the case of the petitioner that he had been forcibly ejected is untrue. The crucial fact that has to be determined in this case is whether the petitioner was forcibly ejected or he has surrendered his possession peacefully. In our view, it is not necessary to determine whether the tenant is entitled to possession of any land under any of the provisions of the Act against a trespasser, because the question whether he is a trespasser or not itself is a matter which has to be determined upon the allegations made by the respective parties. If the tenant has net agreed to surrender the possession then though the respondent would be a trespasser, nonetheless, since he is claiming his possession from the landlord, the tenant would be entitled to possession under the provisions of the Act. If, or the other hand, the tenant has surrendered his possession peacefully, then there is no question of the respondent being a trespasser. In either case, in our view, the Tahsildar was right in holding that he had jurisdiction to entertain the petition.
10. Consequently, this petition is allowed with costs. The order of the Collector is set aside and that of the Tahsildar restored. The Tahsildar should proceed with the enquiry after giving the parties an opportunity to adduce evidence in support of their respective contentions. Advocate's fee Rs. 100.
11. Petition allowed.