(1) (judgment of the court delivered by narasinga rao, j. ,) 1. These two writ appeals are directed against the common judgment of our learned brother jeevan reddy, j. In writ petition nos. 3279 and 3280 of 1977.
(2) The points raised in the two writ petitions are common. The facts are, however, slightly different end they are stated hereinafter.
(3) The case of the petitioner in writ petition no. 3279 of 1977 is that he entered into an agreement of sale on 2 - 7 - 1964 with the 3rd respondent for purchase of certain lands at macharajpalli in mahabubabad taluk, for a sum of rs. 25,000/ -. He was put in possession of the said lands and he paid the entire sale consideration on 10th may, 1965, he has been paying the cist for these lands since the date he was put in possession. At the time of purchase he veri. Fied from the revenue records that respondents 4 to 7 were not at all in possession of the lands and it was also not shown that they have any interest in the said lands. Even for 12 years prior to the date of the agreement, the name of the vendor has been shown as the owner and possessor. While so, on 20 - 8 - 1977 the petitioner received a notice from the village patwari informing the petitioner that a patta certificate in respect of the said lands has been granted under sec. 38 - e of the andhra pradesh (telangana area) tenancy and agricultural lands act, 1950, hereinafter referred to as 'the act', in favour of respondents 4 to 7 and that an order dispossessing the petitioner has been passed and therefore he has to vacate the possession of the lands.
(4) The case of the two petitioners in writ petition no. 3280 of 1977 is that they purchased certain lands in the same village of macharajpally from the 3rd respondent under an agreement of sale dated 12 - 10 - 1963 for a sum of rs. 25,000/ - and were put in possession of the said lands on the date of purchase. They also paid the entire consideration amount on 10 - 4 - 1965. Theythus allege that since the date of the agreement, they have been in possession and enjoyment of the said lands by payment of land revenue. Their further case is that as per the revenue records, on the date of the agreement and 12 years prior thereto, their vendor was shown in possession of the said lands. The records also disclose that no other person had interests or title in the said lands. On 20 - 8 - 1977, the petitioners received a notice from the patwari stating that the tahsildar passed an order for dispossession of the petitioners from the lands, as the 2nd respondent - revenue divisional officer granted a patta certificate in respect of the said lands in favour of respondents 4 to 9 under section 38 - e of the act.
(5) Thus, in both the writ petitions, it was contended that the order of dispossession passed against the petitioners was not a valid order, that they were not parties to it and the said order was passed without any notice to them. The further contention is that admittedly they were in possession of the lands before passing the order of dispossession and even before the issuing of a certificate under section 38 - e of the act. The authorities competent to issue a certificate under sec. 38 - e of the act are bound to issue a notice to the petitioners as they were the persons interested in the land. The other contention is that once respondents 4 to 7 or 9 were issued the patta certificates, they became the owners of the lands and the revenue authorities were no more competent to dispossess the petitioners under the provisions of the act, as the question relating to possession can be said to arise between two rival owners. The furthercontention is that the so called rights of the tenants stood extinguished on account of their being out of possession for more than the statutory period of 12 years prior to the agreement of sale in favour of the petitioners. In the same strain it was contended that the protected tenants, though they were issued protected tenancy certificates earlier, have abandoned their possession over the said lands and they were not dispossessed so as to vest any power in the revenue authorities under the provisions of the act to restore possession to the tenants. Above all, it was contended that the power to restore possession can only be exercised before the patta certificate under sec. 38 - e of the act was issued, but not subsequent to its issuance.
(6) In the counter - affidavit filed on behalf of respondents 1 and 2, it was contended that there was no registered sale deed in favour of the petitioners and as such they cannot set up any claim of ownership. |t was also contended that on the ground of adverse possession also, they cannot lay any valid claim. It was also contended that the question whether the rights of the protected tenants were extinguished on account of their being out of possession for more than 12 years is a question of fact which cannot be effectively decided in the writ petition. The further contention is that if the petitioners were aggrieved by the notice issued by the patwari in pursuance of the orders of dispossession passed by the 1st respondent, they have a remedy by way of an appeal under sec. 90 of the act. |t was asserted that under sec. 38 - e of the act, the 2nd respondent was competent to declare the tenants as owners of the land. The certificates that were issued to the respondents are said to have been issued after observing all the formalities required under the rules. The power to restore possession to the protected tenants out of possession is said to have been delegated to the tahsildar and as such the impugned notice dt. 20 - 8 - 1977 has been issued. The patta certificate undersec. 38 - e is said to have been issued as the req uirements of s. 38 (7) of the act were fulfilled. At that stage, a notice to all persons interested is said to have been issued. But the petitioners have not put forward any objections with regard to the grant of certificate. The revenue record only disclosed that the 3rd respondent is the owner and possessor and as such the question of issuing any notice to the petitioners did not arise. Even at the stage of dispossession,no question of issuing a notice to the petitioners arose. It was also contended that the petitioners have an effective alternative remedy and therefore the writ petitions are not maintainable.
(7) On behalf of the other respondents, it was contended that they were the protected tenants and that the petitioners did not choose toraise any objections before the authorities concerned before the patta certificate was issued to them. The protected tenancy certificate issued to them earlier is said to be conclusive evidence. The further averment is that by virtue of the deeming clauses, their possession over the lands in question stood protected, it is also averred by them that the petitioners have clandestinely created some bogus village records as if they are the purchasers from the landholders. Any possession of the petitioners is said to be unauthorised occupation. As such the revenue courts under the act have summary power to dispossess such trespassers and restore the possession to the protected tenants. They also contended that as they were recorded as protected tenants, they were entitled to the patta certificates as per rule 5 of the rules framed under sec. 38 e of the act. A notice is said to have been published by the revenue authorities in the gazette and also by affixing copies in the village and also by beat of tom - tom, before a final list was published under rule 4 (3) of the rules. In response to the said notice, the petitioners are said to have not raised any objection and so the final list was published. The petitioners are said to be third parties who have no rights whatsoever over the lands. They also contended that the disputed questions of fact cannot be canvassed or enquired into in the writ petition and that as against the orders passed by the authorities under the tenancy act, a remedy by way of appeal is provided for and in view of the alternative remedy, the writ petitions are not maintainable.
(8) The learned single judge held that the provisions of section 38 - e of the act are beneficial special provisions and that the proceedings for restoration of possession could be taken before or after the issue of the patta certificate inasmuch as the protected tenants are conferred ownership rights from the notified date. He thus held that the explanation to sec. 38 - e (1) of the act takes within its ambit the proceedings for restoration of possession before or after the issue of patta certificate under sub - sec. (2) of sec. 38 e of the act. Regarding the grievance as to the absence of any notice to the petitioners, he held that the petitioners have not established by any record that they were in actual possession and in that view held that no individual notice was necessary. He further held that sub - rules (2) and (3) to rule 4 of the rules framed under s. 38 - e of the act would only enjoin an affixture of a provisional list and a notice on the village chavidi or at a conspicuous place in the village and the communication of the said notice to the landholder and the protected tenants. The learned judge also took the view that any person having interest in land could approach the tribunal with objections and such objections could be heard and disposed of by the tribunal under sub - rule (3) of rule 4. Thus, the view taken was that if the petitioners were persons interested in objecting to the provisional list declaring the protected tenants as owners, an opportunity was available for them to raise all objections. With regard to the other contention of the petitioners that the so - called protected tenants being out of possession for more than 12 years their rights were extinguished, the learned judge found that the provisions of limitation act are not at all applicable to the proceedings before the tribunal or to the provisions of the tenancy act. The other contention raised by the petitioners was that the proceedings for restoration of possession could be initiated by the tahsildar only when the protected tenants were dispossessed otherwise than in accordance with s. 32 of the act and inasmuch as the protected tenants in this case abandoned or relinquished their possession, the explanation to sec. 38 - e (1) of the act is not at all attracted. On this question, the learned single judge held that section 38 e of the act not only confers title on the protected tenants, but also enables restoration of possession to such tenants who are out of possession. He thus negatived all the contentions raised by the petitioners. It is these findings that are now assailed in the writ appeals
(9) The learned counsel appearing for the appellants raised the following points: -
1. After issue of a certificate under section 38 - e of the acti there is no jurisdiction in the tahsildar to restore the possession, particularly so, when possession is found to be with a third person. 2. Even assuming that such a jurisdiction is vested in the tribunal or the tahsildar, a notice was required to be issued to the person in possession before an order for restoration of possession to the protected tenant is passed. 3. The rights of protected tenant, who is out of possession for more than 12 years stand extinguished, in view of section 27 of the limitation act 1963. 4. The proceedings for restoration of possession under the explanation to sec. 38 - e of the act can only be taken where a protected tenant was dispossessd, but not when he voluntarily surrenders the possession. 5. At any rate, without an order of eviction of the appellants, the notice issued by the patwari in question is illegal.
(10) Before adverting to the points in question, it is necessary to note that the averments of the petitioners that they are in possession of the lands in question even on the date of the notification under sec. 38 - e (1) of the act or even on the date when the certificate was issued in favour of the protected tenants is not at all controverted either by the revenue authorities or by the other respondents in their counter - affidavits. The protected tenants would rely more upon the deeming fiction as to their being in possession of the lana contained in sec. 38 - e of the act. The impugned notice dated 20 - 8 - 1977 issued by the patwari admittedly establishes that the appellants were in possession of these lands. It is the case of neither, that the petitioners appellants came into possession of the lands after the issue of the ownership certificate to the tenants. It is also evident from the counter - affidavit of the 1st respondent that the tahsildar passed an order restoring the possession to the protected tenants to whom the ownership certificate was issued earlier by the revenue divisional officer, it also transpires that to the proceedings initiated by the tahsildar, the petitioners were not parties and that in pursuance of an order passed by the tahsildar, the patwari had issued the impugned notice.
(11) As against the above background, it has now to be considered as to what is the proper stage when the proceedings for restoration of possession to the protected tenants, who are admittedly out of possession on the notified date, are to be initiated and whether such a restoration of possession could be effected after the issue of the ownership certificate.
(12) In order to decide the question, it is necessary to read the provisions of sec. 38 - e of the andhra pradesh tenancy and agricultural lands act (telangana area) : -
"38 - e. Ownership of lands held by protected tenants to stand transferred to them from a notified date: - (1) notwithstanding anything in this chapter or any law for the time being in force or any custom, usage, judgment, decree contract or grant to the contrary, the government may, by notification in the andhra pradesh gazette declare in respect of any area and from such date as may be specified therein, that ownership of all lands held by protected tenants which they are entitled to purchase from their land - holders in such area under any provision of this chapter shall, subject to the conditions laid down in sub - sec. (7) of sec. 38, stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands. Provided that where in respect of any such land, any proceeding under
section 19 or sec. 32 or sec. 44 is pending on the date so notified, the transfer of ownership of such land shall take effect on the date, on which such proceedings is finally decided, and when the tenant retains possession of the land in accordance with the decision in such proceedings. Explanation: - if a protected tenant, on account of his being dispossessed otherwise than in the manner and by order of the tahsildar as provided in section 32, is not in possession of the land on the date of the notification issued hereunder, then for the purpose of this sub - section, such protected tenant shall, notwithstanding any judgment, decree or order of any court, or the order of the board of revenue or tribunal or other authority, be deemed to have been holding the land on the date of the notification; and accordingly, the tahsildar shall notwithstanding anything contained in the said section 32, either suo motu or on the application of the protected tenant hold a summary enquiry, and direct that such land in possession of the landholder or any person claiming through or under him in that area, shall be taken from the possession of the landholder or such person, as the case may be, and shall be restored to the protected tenant and the provisions of this section shall apply thereto in every respect of as if the protected tenant had held the land on the date of such notification. 2. A certificate in the prescribed form declaring him to be owner shall be issued by the tribunal after holding such enquiry as may be prescribed, to every such protected tenant and notice of such issue shall simultaneously be issued to the landholder. Such certificate shall be conclusive evidence of the protected tenant having become the owner of the land with effect from the date of the certificate as against the landholder and all other persons having any interest therein"
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(13) Section 38 - e (1) of the act lays down that from the notified date (1 - 11 - 1973) , the ownership of lands held by protected tenants which they are entitled to purchase, subject to the conditions laid down in sub section (7) of section 38 shall stand transferred to them. Sub - sec. (7) of sec. 38 of the act lays down that a protected tenant shall be entitled to purchase the land held by him upto the extent of one family holding and subject to a further condition that the landholder shall not be left with less than twice the family holding for the local area. It can be seen that the first condition is that on the notified date the protected tenants must be holding the land. The expression 'holding' necessarily means that they must also be in possession of the lands as protected tenants. Thus, the vesting of ownership is subject to two conditions viz. , that they must be in possession and that the conditions specified in subsection (7) of sec. 38 of the act must be fulfilled. Though from the notified date the ownership of lands held by the protected tenants stand vested in them, the proviso to this sub - section makes an exception to the fact that where a proceeding is pending in respect of a land either under sections 19, 32 or 44 of the act, the transfer of ownership would take effect on the date when any of these matters, if any, pending are finally decided and the tenant retains possession. Under the explanation, the protected tenant who is dispossessed otherwise than by an order of the tahsildar under section 32, shall be deemed to be holding the land on the date of the notification. While under the deeming provision, a protected tenant who is in fact out of possession is held to be in possession, provision is made for restoration of the possession by the tahsildar to the protected tenant after holding a summary enquiry. It may be repeated that the explanation would not stop at the deeming provision itself. The effect of it is that the protected tenant would be deemed to be a person holding the land, but for purposes of conferring upon him the rights of ownership, possession has to be restored to him. Though under sub - section (1) of sec. 38 - e of the act, the rights of ownership stand transferred to the protected tenants, subject to certain conditions, sub - section (2) of that section clearly lays down that a certificate issued to the protected tenant having become the owner of the land would be effective from the date of the certificate as against the landholder and all otherpersons having interest therein. It is not as though the certificate issued under sub - section (2) relates back to the notified date. Needless to say that a certificate would be issued only after examining the fulfilment of the conditions laid down in sub - section (7) of section 38 of the act, even where a protected tenant holds the land. The expression occurring in subsection (2) of sec. 38 - e of the act that the certificate would be effective from the date of its issue is therefore significant. It can thus be said that while sub - section (1) confers ownership rights to protected tenants in general, the ownership certificate would become effective only from the date on which it is issued. Once a certificate is issued, the protected tenant becomes the owner. It would be a misnomer to call him a protected tenant after the ownership certificate is issued to him. Since with regard to each individual protected tenant, the examination of the conditions laid down under sub - sec. (7) of section 38 of the act is necessary, it is specifically laid down that a certificate so issued would be effective only from the date of its issue, though sub - section (1) of sec. 38 e of the act vests ownership rights in the protected tenants from the notified date. The two provisions have to be read together and the result is that while sub - sec. (1) is in the nature of a genesis and source that vests ownership in the protected tenants in general, sub - sec. (2) of sec. 38 - e of the aci vests ownership in a particular protected tenant from the date of the certificate which will be issued after enquiry with regard to the fulfilment of the necessary conditions. The point, however, is whether after the issue of a certificate the proceedings for restoration of possession could be taken under this act. What is contended by the learned counsel for the appellants is that by the issue of a certificate under sub - section (2) , the protected tenants become owners and the tahsildar has no more the power to restore possession to the said persons. In this connection, he relied upon a ruling of this court reported in sharfuddin v. Sama yelluga (1) 1957 (ii) an. Wr. 478 wherein it is held: -
"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 rights of ownership to aparticular land or a dispute between an owner and a trespasser or a person other than a tenant"
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(14) Similarly, reliance is sought to be placed upon a decision of this court in laxmaiah v. Baji reddy (2) (1970 (1) an. Wr. 51). It is held therein as follows: -
"the tenant holds a previleged position under the hyderabad tenancy and agricultural lands act and is given certain special rights and previleges. His possession is particularly protected and he can apply for eviction of any body, be it the landlord or a person claiming under the landlord, or a trespasser who disturbs his possession. Possession of the landlord, however, is not similarly protected. The only remedy, if his possession is disturbed is to go to a civil court for redress. The remedy provided under section 98 obviously must be related to persons who are entitled to seek possession under the act. The possession of the landlord is not protected under the act and therefore the landlord cannot maintain the application under sec. 98 against a trespasser."
(15) Thus, the contention is that once the rights of protected tenant are enlarged into that of ownership by the issuance of a certificate of ownership,lt is no more open to him to seek'redress for restoration of possession under the provisions of the tenancy act and that his remedy lies only in a civil court. It is thus contended that once a certificate of ownership is issued, the tahsildar cannot resort to any summary enquiry as laid down in the explanation to sec. 38 - e of the act and restore possession. The petitioners are setting up their claim to the land under an invalid sale from the recorded owner. They would put it that by being in possession for more than 12 years under an invalid sale deed, they have acquired rights of ownership by prescription. The contention is that consequent on the issue of ownership certificate the claim for restoration of possession is in the nature of a claim between two rival owners and the tahsildar is ro more competent to entertain this issue. The learned single judge held that the provisions of the tenancy act are beneficial provisions and that as the protected tenants are declared to have become the owners, proceedings for restoration of possession can be taken at any stage, irrespective of the date of issue of the certificate. We are however, unable to accept this view. Needless to say that once an ownership certificate is issued, the protected tenant himself becomes the owner and the question of restoration of possession to such an owner is no more within the province of the tahsildar, be that proceeding against a trespasser or against a rival claimant. That apart, the explanation clearly lays down that the restoration of possession is to a protected tenant who is dispossessed otherwise than by an order of the tahsildar under sec. 32 of the act and not to a person in whose favour the ownership certificate is issued. The explanation clearly refers to the dispossession of protected tenant otherwise than in accordance with section 32 of the act. Section 32 of the act lays down that a tenant who is entitled to possession of any land may apply to the tahsiidar in writing for such possession. It also lays down that no landholder shall obtain possession of any land except by an order of the tahsiidar. The reference to sec. 32 in the explanation to sec. 32 - e of the act points to the fact that where the dipossession of a tenant was in contravention of section 32, the tahsiidar should proceed to restore possession and such a restoration of possession could only be to the protected tenant. The pointed reference of restoration of possession to the 'protected tenant' in this explanation leaves no doubt that the restoration of possession could be only in favour of a protected tenant and not to a person or a protected tenant to whom a certificate of ownership has been issued. Thus, there are clear indications in (he very explanation that where a protected tenant is out of possession on or after the notified date, the tahsiidar suo motu or on an application may restore the possession to the protected tenant after holding a summary enquiry. Having regard to the language of the explanation, there cannot be any doubt that the possession to a protected tenant cut of possession could be restored only before a certificate of ownership is issued to him. If the intention of the legislature was that the restoration of possession was to be in favour of a person to whom a certificate was already issued, nothing prevented it from making such a provision in that regard. It could have said that the restoration of possession couid be in favour of the holder of owership certificate issued under sub. Sec. (2) of sec. 38 - e of the act. 't is altogether a different matter whether the legislature could itself confer a power on the tahsilder to decide questions of possession between an owner so declared and a trespasser which obviously is not the scope and the object of the tenancy act. In the instant case, the tahsiidar passed an order for restoration of possession to the protected tenant after the ownership certificate had been issued. Such a procedure is not contemplated even by the explanation to section 38 (1) of the act. The fact that the provisions are beneficial would not enable a person to whom a certificate of ownership has been issued to seek restoration of possession under this act, for the simple reason that he happens to be no more a protected tenant, but an owner. The procedure for restoration of possession subsequent to the issuing of a certificate of ownership is, however, in our opinion, just putting the cart before the horse. The tahsiidar had certainly no jurisdiction to take any proceedings for restoration of possession after the certificate of ownership had been issued. That apart, the restoration of possession to the protected tenant is contemplated for the purpose of giving effect to evesting of ownership, as the vesting of ownership would be only favour of a tenant holding the land. In order to fulfil the very conditions which would vest the ownership in the protected tenants, a summary enquiry is provided only for the purpose of issuing a certificate to a protected tenant after putting him in possession. Viewed from any angle, the restoration of possession could be only to a protected tenant before any certificate of ownership had been issued to him. In other words, the restoration of possession to a protected tenant out of possession is a stage preceding the issue of a certificate. In this view of the matter, the tahsildar, who admittedly restored possession to the protected tenants subsequent to the issue of ownership certificate must be held to have acted without jurisdiction. The impugned notice issued by the patwari in pursuance of an alleged order of the tahsildar to which the petitioners were not at all parties, has therefore to be quashed, as the possession of the lands was admittedly not restored to the protected tenants before the issue of the certificate and it cannot be held that they were holding the land. The deeming provision contained in the explanation would however lay down that such protected tenants wouid be deemed to be holding the lands on the date of the notification. But since proceedings for restoration of possession have to be initiated thereafter before a certificate is issued, it can only be said that one of the conditions of the tenants being in possession before the issue of the certificate remains unfulfilled. For that reason, the certificate of ownership issued without putting the tenants in possession before jts issue is equally invalid.
(16) The next question is, whether the appellants - petitioners are entitled to any notice before an order of dispossession was passed against them. As noted above, it is not in dispute that on the notified date the petitioners were in possession. The revenue authorities would put it that there was no entry in the pahani showing that the petitioners were in possession, so that individual notice were called tor. The protected tenants - respondents had alleged in paragraph 6 of their counter that the petitioners clandestinely got bogus entries made in the village records as though they were the purchasers from the land - holders. In view of this averment in the counter - affidavit, the allegation that there was no material to hold that the petitioners were in possession does not appear to be correct. The impugned notice of the patwari itself establishes that the appellants - petitioners were in possession of the land. Otherwise, the notices for their dispossession would not have ensued. From the very order of the tahsildar,it follows that the protected tenants were also out of possession. The explanation to 38 (1) of the act clearly lays down that where such protected tenants are out of possession, the tahsildar should hold a summary enquiry and restore possession to the protected tenants. It is not the case of the respondents that the tahsildar made such an enquiry. If the petitioners, were in possession, they were certainly persons interested in the land, irrespective of the question whether they had any title or they had perfected their title by prescription. If it can be said that they are persons interested, in the land, they were entitled to a notice during the said enquiry. At least the principles of natural justice would require such a notice. The enquiry contemplated in the explanation cannot be equated to an enquiry under rules 4 and 5 of the rules made under section 38 - e of the act. Rule 4 of the a. P. (telangana area) tenancy and agricultural lands rules, 1950 (hereinafter referred to as 'the rules') reads as foliows: - "4. Inquiry: (1) as soon as may be after the issue of the notification under sub - section (1) of section 38 - e, the tribunal shall, after taking into consideration the tenancy records, if any prepared and maintained under the act and any other record of rights or revenue accounts, if any, for the time being in force, and after holding or causing to be held summary enquiry in respect of the lands held by the protected tenants and their respective land - holders, determine the extent of lands held or deemed to be held by the protected tenants the extent of land held by the landholders on the date notified under section 38 - e, and the extent which the protected tenant is entitled to purchase from the landholder and prepare a provisional list in form i showing the names of all protected tenants to whom the ownership is deemed to have been transferred under section 38 - e and the extent and description of land so transferred and vested in the protected tenants. (2) the provisional list prepared under sub - rule (1) together with a notice inviting objections thereto and fixing a date for hearing such objections (not being later than 15 days from the date of publication) shall be caused to be published by the tribunal by affixing a copy thereof on the notice board of the village chavidi or any at other conspicuous place in the village and by beat of tom - tom in the village. A copy of the list together with the notice shall also be communicated to landholders and the protected tenants concerned at their usual place of residence, if any, in the village. (3) on the date fixed under sub - rule (2) or any subsequent date on which the enquiry may be adjourned, the tribunal, shall, after hearing objections, if any, received from any landholder, protected tenant or any other interested person, and making such further enquiry as may be necessary, declare the provisional list with or without modifications, as a final list and cause it to be published by affixing a copy thereof on the notice board of the village chavidi or at any other conspicuous place in the village and by beat of tomtom in the village". It is true that rule 3 of the rules" envisages publication of notice. What is contended for the respondents is that there was a publication of the notice as contemplated by rule 3. It can be seen that the purpose of the publication of notice and the enquiry under rules 3 and 4 is not with regard to any restoration of possession to the protected tenant out of possession. The enquiry contemplated by rule 4 of the rules is only with regard to the entitlement of the protected tenant to the extent of land which he can purchase from the landholder. This enquiry is only for the purpose ot preparing a provisional list showing that the protected tenant is entitled to purchase a particular extent. This enquiry relates also to the extent of land held by the landholder in order to determine whether the conditions of sub - section (7) of section 38 of the act would be fulfilled in a given case or not. The nature of the enquiry as is laid in rule 4 is different from an enquiry for the purpose of restoring possession to the protected tenant. Thus the mere publication of a notice or the publication of a provisional list would not dispense with a summary enquiry or a notice to the person interested in the land with reference to the proceedings for restoration of possession. Besides, it can be noted that the enquiry under rule 4 of the rules has to be made by the tribunal i. E. , by the revenue divisional officer, whereas the summary enquiry with regard to restoration of possession is to be made by the tahsildar. Thus, a mere wide publicity cr the affixing of a provisional list either on the notice board of a village chavidi or at any conspicuous place under rule 4 is not tantamount to a notice which the tahsildar has to issue during a summary enquiry with regard to restoration of possession. To say that any person who could raise an objection under sub - rule (3) of rule 4 could also raise an objection as to the restoration of possession would not be correct, in view of the above rule position. Thus, any order passed by the tahsildar restoring the possession without notice to the person in possession of the land is invalid, illegal and violative of the principles of natural justice. The impugned notice issued by the patwari in pursuance of the alleged order of the tahsildar for dispossession cf the appellants - petitioners is equally liable to be quashed on this ground also.
(17) It was next contended by the learned counsel for the appellants - petitioners that the tenants were out of possession for more than 12 years and therefore their limited interest in the lands stood extinguished under sec. 27 of the limitation act of 1963 corresponding to section 28 of the old limitation act. Whether the tenants were out of possession for more than 12 years is a question of fact and that question cannot be gone into in a writ proceeding. But since the learned single judge held that the provisions of the limitation act would not apply to tenants or to the proceedings under the act and in the view of the matter we have taken about the invalidity of the certificate or the order of dispossession, we are called upon to express our opinion on this question also lest the tribunal or the tahsildar acting afresh may not feel bound by or act under the view expressed by the learned single judge. The contention of the learned counsel for the appellants wes that even a limited interest like that of a tenant or mortgage stands extinguished under sec. 27 of the limitation act. Sec. 27 of the new limitation act, 1963 (corresponding to sec. 28 of the old limitation act of 1908) reads as follows: -
"at the determination oi the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished"
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(18) Whether the provisions of the limitation act would apply to a proceeding before the authorities under the tenancy act is altogether a different matter. It can be noted that if the provisions of sec. 27 of the limitation act are held applicable, even a limited interest stands extinguished on the expiry of the period of limitation prescribed for bringing a suit for recovery of possession. In other words, if a person is out of possession for the statutory period and his remedy for recovery of possession is barred undr the provisions of the limitation act, even the limited rights stand extinguished. In lachmi narain v. Kalyan (3) (air 1960 rajastan 1 (s. B) it is held that the mortgagees' rights can be acquired by prescription. Similarly in jamadar v. Amir hassan (4) (air 1957 patna 213) , it was held that title to the extent of the mortgagees' can be acquired by prescription. The question, however is whether the provisions of sec. 27 of the limitation act, 1963 would be attracted so as to hold that on account of the tenants being out of possession for any length of time, subject to the finding of fact, their rights can be said to have been extinguished. Under sec. 93 of the act, a provision is made with regard to limitation which reads as follows: -
"93. Limitations: - every appeal and every application for revision under this act shall be filed within sixty days from the date of the order against which the appeal or application is filed and the provisions of the indian limitation act, 1908 shall apply for the purposes of the computation of the said period"
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(19) This section provides the period of limitation only in regard to appeals and revisions and for computing the said period the provisions of the indian limitation act are made applicable. The question whether the provisions of the limitation act in computing the period of limitation has been the subject matter of a few decisions of this court which will be referred to hereafter. It is equally relevant in this context to read s. 29 of the limitation act of 1963 regarding the application of the limitation act to special or local laws. Under sec. 23 (2) of the limitation act, the provisions contained in sections 4 to 24 are held applicable to the local or special laws, if they are not expressly excluded by such special or local law. Under the old limitation act of 1908, sections 4, 9 to 18 and 22 are held to apply to the special or local laws, if they are not expressly excluded. It can thus be seen that section 5 of the limitation act was not made applicable under sec. 29 (2) of the old limitation act to local or special laws. Construing the provisions of section 93 of the tenancy act and sec. 29 (2) (a) of the old limitation act, it was held in a ruling of this court reported in syed sharfuddin vs. Andrews (5) that the collector acting under the provisions of the tenancy act had no power to condone the delay under sec. 5 of the limitation act. The view taken was that the tenancy act itself provides limitation with regard to appeals or revisions and that section 5 of the limitation act was not made applicable under the provisions of the old limitation act to special laws.
(20) It can be noted that after the amendment of the limitation act, sec. 5 is also made applicable to special or local laws. A division bench of this court in k. Venkaiah vs. K. Venkateswara rao (5) (1977 (2) aplj 382) held that though section 5 of the limitation act is made applicable to special or local laws, since the tribunals or the authorities under the tenancy act are not civil courts, sec. 5 of the limitation act has no application. In the above two rulings of this court, the question whether sec. 27 of the limitation act, 1963 or section 28 of the limitation act, 1908 is applicable to the rights of tenants and whether such a plea could be raised in any proceeding before the authorities under the act, did not come up for decision. Section 27 of the limitation act as it stands cast is only declaratory in nature. While section 93 of the tenancy act lays down that the provisions of the limitation act are made applicable for the purpose of computation of the period of limitation,it does not lay down any period for an application to be made by the tenant under sec. 32 of the act for restoration of possession. The question has to be viewed not with reference to the provision of limitation contained in the tenancy act, but from the angle whether the tenant, who is out of possession could bring any suit for possession, though section 27 of the limitation act is not expressly made applicable or expressly excluded by sec. 93 of the tenancy act. Section 27 of the limitation act clearly lays down that if the period prescribed for a suit for recovery of possession expires, not only the remedy but also the right to recover possession stands extinguished. In the first place, it has to be answered whether sec. 27 of the limitation act or the principle underlying it would apply to local or special laws. The learned counsel for the appellants relied upon a ruling of the lahore high court reported in kartar singh vs. Kharakha (6) air 1935 lahore 787 in support of his contention that if not sec. 27, the principle underlying it would apply to local laws. It is held in that ruling :
"section 28 does not in terms apply to cases under special and local laws; but the principle underlying it is of general application and can be applied to cases governed by local laws"
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(21) The local law that was the subject matter of consideration was not in relation to any tenancy right. On the other hand, it was contended by the learned government pleader that sec. 28 of the old limitation act corresponding to section 27 of the new limitation act of 1963 would not apply to tenancy laws. Reliance for this position is placed upon a decision reported in banau v. Ranjit singh (7) (air 1926 nagpur 99) that not only the express provisions, but even the underlying principle of sec. 28 of the limitation act does not apply to the law of tenancy in the central provinces. From a perusal of this ruling, it would appear that the question whether section 28 of lhe limitation act has any application to tenants holding came up for oonsideration before the calcutta high court in nandkumar dobey v. Ajodhya sahu (8) (1911) 16 cwn. 351) and it was held therein that though not sec. 28 of the limitation act was directly applicable, but the principle was applicable and that the title of the tenant became extinguished owing to the loss of his remedy by suit. That ruling was distinguished on facts by the nagpur high court. It can, however, be seen that under the law of tenancy in central provinces, a period of two years was prescribed for recovery of possession by the tenant by way cf a suit. The view that was taken appears to be that while a specific provision with regard to limitation for bringing a suit had been made, which provisions has the effect of barring the remedy of the suit, section 28 which extinguishes the right is not made applicable. In this view, it was held that though a provision of limitation barring the remedy is made, the extinguishment of a right or a corresponding provision for acquisition of right by prescription embodied in a provision like sec. 28 of the old limitation act is not expressly provided in the central provinces tenancy act. The facts of that case further disclose that the tenant also came into possession extra - judicially after the lapse of the period of limitation prescribed for a suitto recover possession of the tenancy. It was further held that sec. 28 of the limitation act does not bar the defence if the person, whose right is extinguished, gets into possession subsequently. Thus, the view taken was that by providing the period of limitation for recovery of possession by a tenant, only a restrictive prescription was provided, but not the extinguishing or the corresponding acquisitive prescription. In the instant case, as noted above, the act does not provide any limitation for an application by the tenant for restoration of possession. The question to our mind largely depends upon whether a tenant could equally bring a suit for restoration of possession. If it can be held that he can so bring a suit, recourse to the provisions of the limitation act must necessarily be had to the period of limitation provided therein for a suit and consequently to sec. 28 of the old limitation act or 27 of the new limitation act, 1963 which lays down the extinguishing and the acquisitive prescription. Needless to say, sec. 3 of the limitation act engrafts the restrictive prescription in the sense that on the expiry of a period prescribed for bringing a suit or an application, such a right stands barred. If the right to recover possession is barred on account of the limitation, the very right to possession also stands extinguished undersec. 27 of the limitation act, 1963. Thus, sec, 27 of the limitation act embodies an acquisitive prescription. It is significant to note that while sec. 32 of the act places a total embargo upon the right of the landholder to seek possession from a tenant in a civil court, it only lays down that a tenant out of possession may make an application to the tahsildar for restoration of possession. Thus, this provision for resort to the revenue court or to the tahsildar by a protected tenant is only an enabling one and his remedy by way of a suit in a civil court for recovery of possession is not barred. If a tenant could thus bring a suit for recovery of possesion, the provisions contained in the limitation act with regard to the limitation provided for such a suit and consequently the provisions of sec. 27 are attracted. The ruling of the nagpur high court above referred to is distinguishable on the ground that while in the centra! provinces tenancy act the period for a suit is prescribed, no such period is prescribed in the tenancy act of andhra pradesh. It may be that in view of limitation provided in the central provinces tenancy act it was held that section 28 of the old limitation act was not applicable to tenancy holdings. But when it can be said that a tenant can bring a suit for recovery of possession in a civil court, in spite of the provisions of the hyderabad tenancy act, not only the period of limitation prescribed under the limitation act, but also the provision relating to the extinguishment of right as embodied in sec. 28 of the limitation act would necessarily apply.
(22) Thus, the provisions of sec. 27 of the limitation act with regard to the extinguishment of the right of tenancy are held applicable to a tenant, who is out of possession for the statutory period and the right of such a tenant to bring a suit would be barred. If the right of such a tenant is extinguished and he cannot lay a civil suit for recovery of possession, he cannot be held entitled to restoration of possession, even in a proceeding under the tenancy act for the obvious reason that if for one purpose his right is held extinguished for the other it cannot be held to survive. It therefore, follows that once the right of the tenant is extinguished, in view of section 27 of the limitation act, he cannot be restored to possession eithsr on his application or otherwise by the authorities under the tenancy act.
(23) It was lastly contended by the learned counsel for the appellants that the power to restore possession to a protected tenant out of possession can be exercised by the tahsildar under the explanation to sub - sec. (1) of sec. 38 - e of the act only when the protected tenant is dispossessed. The contention is that there may be cases of surrender of possession or voluntary abandonment of possession by the protected tenant and in such events possession cannot be restored to the protected tenant. The express language of the explanation itself is that possession can be restored by a summary enquiry in favour of a tenant who is dispossessed. Obviously, that power cannot be exercised in favour of a tenant or protected tenant who voluntarily surrenders his possession or who has abandoned the possession. The question whether a protected tenant was dispossessed or abandoned possession voluntarily is, however, a question of fact. Suffice it to say, that the restoration of possession could only be in favour of a protected tenant who is dispossessed in contravention of sec. 32 of the act and not one who has surrendered or abandoned possession.
(24) It can also be noted that the notices issued by the patwari purporting to be in possession of an order of the tahsildar are one to which the appellants - petitioners were not parties. In the view of the matter we have taken, any order of dispossession by the tahsildar subsequent to the issue of ownership certificate is not only illegal and invalid, but is also not an order under the provisions of the act. It cannot be said that the writ petitions are not maintainable on the ground that alternative remedies of appeal are available to the petitioners. The question that the petitions are not maintainable was not also seriously canvassed before us by the respondents. Even otherwise, we hold that the writ petitions are maintainable.
(25) For the aforesaid reasons, we hold that the impugned notices issued by the patwari and also the ownership certificate issued by the 2nd respondent in favour of the protected tenants without notice to the petitioners (persons in possession) and the restoration of possession having not preceded the issue of ownership certificate, are illegal. Thus, writs of mandamus would issue restraining the respondents from disturbing the possession of the appellants - petitioners. This would not preclude the authorities under the act from taking fresh proceedings after due notice to the petitioners to consider whether respondents 4 to 7 or 4 to 9 in the other case are entitled to recover possession and the further question whether they are entitled to the ownership certificates. The appellants - petitioners would be at liberty to raise all objections including the objection as to the rights of the protected tenants for restoration of possession on the ground of extinguishment of their right.
(26) The writ appeals are accordingly allowed, but without costs. Advocate's fee rs. 150/ - in each.