Citation Codes

Equivalent Citations

citation codes

Case Number

CRP 7095 of 1979

Attorney(S)

For the Appellant: B. Subhashan Reddy, K. Pratap Reddy, Advocates.

Judges

Ramaswamy, J.

Acts

sub - sections (l) and (2) (i) of section 97 read with sections 35
(29) Rule 8 contemplates enquiry. (30) Rule 10
section 47 read with section 151 c. P. C." (55)
sub - section (6) of section 38. (31) Rule 11
act 2 of 1979 introducing section 38
section 97 read with section 37
(42) Sub - section (2) of section 40
provisions of this act; sec. 2 (u)
section 34. (20) Section 37
section 47 of c. P. C. (2)
section 115, c. P. C. (7)
section 115, c. P. C. (8)
act. (19) Section 37
(11) Section 2 (f)
section 2 (c)
(33) Rule 13
(34) Rule 14
(36) Rule 16

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The original suit (O.S. No. 72/50) was for partition of scheduled properties and for possession among persons claiming rights, title and interest. Choudhari Rama (judgment-debtor No. 11) was impleaded as a co-nominee defendant because he was in possession as a tenant of certain lands, including lands in survey Nos. 18/1 and 18/2 in Paregaon village (details of area given in the opinion). A preliminary decree for partition was passed and allowed to become final before execution proceedings: at the time execution was sought (E.P. Nos. 12 and 13 of 1978) delivery of possession of the lands was claimed by decree-holders.

Choudhari Rama subsequently died and the petitioner was impleaded as his legal representative in the execution petitions. The petitioner was served with notices and, by application dated 20-10-1978 (under Section 47 CPC), objected to execution on the ground that his father was a protected tenant under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950. The Tahsildar had issued a protected tenancy certificate (Ex. B-1) declaring Choudhari Rama a protected tenant as to lands including survey No. 18. The decree-holders filed an ejectment application before the tenancy court, which was dismissed and allowed to become final. In the execution proceedings the petitioner examined himself and marked documents (Exs. B-1 to B-5); the decree-holders filed no counter and led no rebuttal evidence.

The executing (lower) civil court examined the evidence, held that Ex. B-1 related to survey Nos. 18 and 84 and that the petitioner, as legal representative, was bound by the decree which he could not go behind; the court found Ex. B-1 did not show the name of one decree-holder (Qureshi Bi) and that other documentary evidence (Exs. B-2 to B-5) did not prove tenancy in respect of lands shown in Ex. B-1. The lower court overruled the objection and directed delivery of possession of Survey No. 18 to the decree-holder. The petitioner filed the present revision petition challenging that order. The court also noted that E.P. 2/75 (possession of Survey No. 84) had been taken and become final, so the present petition concerns Survey No. 18.

Legal Issues Presented

Whether the executing court can go into the question of the legality of Ex. B-1, the protected tenancy certificate issued by the Tahsildar.
Whether the civil court has jurisdiction to pass a decree of ejectment against a protected tenant.
Whether the decree can be executed against the petitioner in respect of the lands in Survey No. 18.
Whether this Court can interfere with the lower court's order under Section 115 of the Code of Civil Procedure.

Arguments of the Parties

Petitioner's Arguments

The petitioner (as legal representative of Choudhari Rama) contended that Choudhari Rama was a protected tenant by virtue of the Tahsildar's protected tenancy certificate (Ex. B-1) issued under the Act; therefore the civil court had no jurisdiction to eject him and the decree under execution was a nullity insofar as it purported to eject a protected tenant.
He argued that his father's impleadment in the original suit was only to bind him to a final decree of allotment (symbolic possession) and did not extinguish his tenancy rights; those tenancy rights subsist and are protected by Ex. B-1.
He relied on the tenancy certificate and on precedent (an Allahabad High Court Division Bench decision in Amarnath v. Dharam Chand) for the proposition that the decree only obtained symbolic possession and did not defeat tenancy rights.
He noted the tenancy certificate became final and there was no counter-affidavit or rebuttal evidence by the decree-holders to impugn Ex. B-1.

Respondent / Decree-holder's Arguments

The decree-holders contended that Choudhari Rama was a party to the preliminary decree and allowed that preliminary decree to become final without raising the plea of protected tenancy; therefore the petitioner (as his representative) cannot go behind the decree and is bound by it.
They argued that the executing court cannot go behind a decree and that the lower court's finding that the protected tenancy was not properly proved is a factual finding not open to interference under Section 115 CPC.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Amarnath v. Dharam Chand (Allahabad High Court, Division Bench)	Authority relied upon by the petitioner to support the contention that a decree in such circumstances is only to obtain symbolic possession and does not destroy tenancy rights.	Cited by the petitioner in support of his contention that tenancy rights subsist despite the decree; referenced in the factual account of submissions.
Chennaiah v. State of Andhra Pradesh (Division Bench)	Upheld constitutional validity of the Act (including the amendment introducing Section 38-E proviso) and held that ownership under Section 38-E(1) stands transferred on the notified date; certificate of ownership can be valid even if possession not restored and such certificate's validity cannot be challenged at delivery of possession under the amended proviso.	Referred to in support of the proposition that certificates issued under Chapter IV can transfer ownership and are valid and conclusive when issued in the prescribed manner.
Sharfuddin v. Sama Yelluga	Where a landholder seeks possession from a tenant/protected tenant, he can proceed only via the procedure prescribed under the Act; questions whether a person is a protected tenant fall exclusively within the Tahsildar's jurisdiction and the civil court lacks jurisdiction in such cases.	Relied upon to demonstrate that the Act vests exclusive jurisdiction in the Tahsildar and that the civil courts are ousted from deciding protected-tenancy questions.
Barraclough v. Brown (House of Lords)	When a special statute gives a right and provides a forum for adjudication, the party must seek the right under that statute and the civil court has no jurisdiction to decide the question.	Invoked as an authority for the broader principle that a special statutory scheme with its own forum ousts ordinary civil jurisdiction.
Doe v. Bridges (Lord Tenterden)	"Where an act creates an obligation and enforces the performance in a specified manner ... performance cannot be enforced in any other manner."	Quoted to support the proposition that where the Act prescribes a particular method for adjudication and enforcement, courts should not provide alternative remedies.
Premier Automobiles v. K. S. Wadke (Supreme Court)	Proposition (3) cited: if enforcement of a right created under a special Act is concerned, the only remedy is adjudication under that Act.	Analogized to the tenancy Act: rights created by the Act must be enforced under its machinery rather than by ordinary civil proceedings.
Kiran Singh v. Chaman Paswan (Supreme Court)	Decree passed by a court without jurisdiction is a nullity and its invalidity can be set up whenever and wherever it is sought to be enforced, even at execution or collateral proceedings; consent cannot cure lack of jurisdiction.	Applied to hold that if the civil court lacked jurisdiction to pass an ejectment decree against a protected tenant, that decree is a nullity and can be impugned at execution.
B. V. Patankar v. C. G. Sastry (Constitution Bench)	Where the executing court ignores statutory provisions (e.g., rent control) prohibiting eviction and passes delivery of possession, the order can be set aside and redelivery to the tenant ordered on an application under Section 47 read with Section 151 CPC.	Relied upon to show that executing courts can set aside execution that enforces a decree passed in contravention of statutory protections and restore possession to the tenant.
Ferozi Lal v. Mamnal	Invalidity of a decree (for ejectment) can be assailed at execution where the court was not competent to pass such a decree (for instance, decree based solely on compromise without satisfying statutory grounds).	Invoked to support the proposition that decrees not satisfying statutory jurisdictional requirements are nullities and may be challenged in execution.
Bahadursingh v. Muni Subrat Dass	If the decree for delivery of possession is a nullity it cannot be enforced or executed.	Used to reinforce that a void decree cannot be executed against a protected tenant.
Kaushalya Devi v. K. L. Bansal (Supreme Court)	Supports the view that decrees lacking statutory foundation cannot be enforced.	Cited as another decision consistent with the principle that invalid decrees cannot be executed.
Ledgard v. Bull (Privy Council / older authority)	Consent does not confer jurisdiction on a court; parties cannot by consent cure a want of jurisdiction.	Applied to reject the argument that allowance of a decree to become final by the judgment-debtor (or consent) confers jurisdiction or precludes attack on jurisdiction at execution.
Bartan v. Fincham (Court of Appeal)	Parties cannot by agreement give courts jurisdiction which the legislature has withheld; a court cannot give effect to an agreement inconsistent with statutory provisions.	Relied upon to support the principle that private agreement/consent cannot confer jurisdiction contrary to statute.
Peachery Property Corporation v. Robinson (per Winn, L.J.)	Affirms the view that parties cannot contract to give jurisdiction to a court contrary to statutory provisions.	Referred to as consistent authority for the same jurisdictional principle.

Court's Reasoning and Analysis

The Court's analysis proceeds from statutory text to consequence:

The Court examined the relevant provisions of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 and the rules framed thereunder (chapter IV and related rules). It summarized definitions (protected tenant, tenant, agricultural land), the provisions for declaration of protected tenancy (Sections 34–38 and related rules), and the procedures for issuing certificates of ownership/tenancy (rules and later framed rules and G.O.s, including rules of 1950, amendments and transfer-of-ownership rules of 1973).
The Court stressed that Section 35 makes the decision of the Tahsildar declaring a person to be a protected tenant conclusive and that such rights are to be recorded; Section 40 makes rights heritable; Section 38-E and related notifications provide for transfer and vesting of ownership in protected tenants; Section 99 expressly ousts civil court jurisdiction in matters required to be dealt with by Tahsildar/tribunal/collector/board/government; and Section 104 gives overriding effect to the Act and its rules.
The Court reasoned that these provisions together create a self-contained code in respect of the matters covered, confer indefeasible and heritable ownership-rights on protected tenants when certificates are issued, attach conclusive effect to the Tahsildar's declaration, and expressly bar civil courts from adjudicating on these matters. Consequently, the civil court lacks jurisdiction to decide questions that the Act entrusts to its specialized machinery.
The Court cited and analyzed authorities (domestic and foreign) establishing the general principle that where a special statute confers rights and prescribes a forum and method for adjudication and enforcement, ordinary civil courts may not provide alternative remedies or enforce rights in a manner inconsistent with the special statute. The Court relied particularly on precedents holding that decrees passed without jurisdiction are nullities and may be impeached at execution (Kiran Singh v. Chaman Paswan; Ledgard v. Bull; Barraclough v. Brown; Doe v. Bridges; Premier Automobiles v. Wadke; and others).
Applying these principles to the facts, the Court held that the executing court had no power to inquire into the correctness or legality of Ex. B-1 (the Tahsildar's protected tenancy certificate). The lower court's finding that the decree-holder was not bound by Ex. B-1 was held to be beyond its jurisdiction and therefore without legal effect.
The Court further examined whether the petitioner (as legal representative) could "go behind" a decree which the judgment-debtor had allowed to become final. It concluded that where the court that passed the decree inherently lacked jurisdiction owing to a statutory ouster (i.e., the subject matter had been removed from its jurisdiction by the legislature), the decree is a nullity and its invalidity can be set up at execution or in collateral proceedings; consent or waiver cannot confer jurisdiction in such a case.
On these bases, the Court concluded that the ejectment decree (to the extent it sought eviction of the protected tenant in respect of Survey No. 18) was a nullity because Chapter IV of the Act vested exclusive jurisdiction in the statutory authorities and conferred conclusive ownership-rights on the protected tenant by Ex. B-1. The executing court was therefore obligated to recognize the certificate and could not enforce the ejectment decree against lands covered by it.
Finally, having found that the lower court proceeded on an erroneous assumption of jurisdiction and committed material irregularity, the Court held that it had power to intervene under Section 115 CPC to correct the order and prevent the nullification of the Act's beneficial provisions.

Holding and Implications

Core Ruling: The revision petition is allowed and the order of the lower court is set aside; E.P. No. 13/78 is dismissed to the extent of Survey No. 18 of Paregaon village. The dismissal is without costs.

Implications

The court held that the protected tenancy certificate (Ex. B-1) issued by the Tahsildar is conclusive under the Act and, in respect of lands specified therein, confers indefeasible and heritable rights on the protected tenant which cannot be defeated by an ejectment decree passed by a civil court that lacked jurisdiction.
Where Chapter IV of the Act applies and a certificate has been issued, the civil court lacks jurisdiction to eject a protected tenant; any decree for ejectment passed in derogation of the statutory scheme is a nullity and may be impeached at execution.
The executing court may and must take cognizance of the statutory scheme and the protected-tenancy certificate when faced with execution of a decree that purports to affect rights conclusively declared under the Act; Section 47 CPC (and Section 151 CPC) can be invoked to resist execution in such circumstances, and the executing court can set aside prior execution and order redelivery where statutory protections have been contravened (as supported by precedent).
This Court exercised revisional jurisdiction under Section 115 CPC to correct the lower court's material irregularity and excess of jurisdiction because the lower court's approach would have nullified the Act's protections.
Direct effect on parties: The decree-holders cannot obtain possession in respect of Survey No. 18 by enforcing the impugned ejectment decree; the petitioner's rights as legal representative of the deceased protected tenant stand protected in respect of those lands. The order disposes of E.P. 13/78 in respect of Survey No. 18; costs were not awarded.

Note: This summary is strictly confined to the material and the holdings contained in the provided opinion and does not add information beyond what appears in that text.

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Choudari Rama (Died) Per L.R Choudary Ganapathi v. Qureshi Bee

(1) The petitioner is the legal respresentative of one choudhari rama, judgment debtor no. Ii in o. S. No. 72/50. The suit was filed particion of the plaint schedule properties and for possession thereof inter se between the persons having right, title and interest therein, choudhari rama was impleadcd co - nomine as party - defendant to the suit because he was in possession as tenant of certain lands, the details of which is unnecessary to delienate except the land in survey no, 18/1, admeasuring ac. 4 - 32 guntas s. No. 18/2 admeasuring ac 2 - 10 guntas of dry land in the village paregaon since we are concerned in this revision petition only about these lands the suitwas decreed at the time of laying the execution in la, no, 64/61. Choudhari rama died and the petitioner was impleaded as his legal representative to the execution petition two execution petitions have been laid viz. , e. P. Nos. 12 and 13 of 1978 for delivery of possession of these and other lands notices were issued to the petitioner. After service, he objected to the execution by an application dated 20 - 10 - 1978, obviously under section 47 of c. P. C.

(2) In was contended there in that the decree under execution wasr nullity because the petitioner is a protected tenant under the provisions of the andhra pradesh (telangana area) tenancy and agricultural lands act, 1950 the tahsildar, in exercise of the powers conferred on him under the provisions of the act. Issued a tenancy certificate (ex. B - 1) declaring his father, choudhari rama, as protected tenant in respect of the lands in their possession. The civil court has no jurisdiction to execute the decree. The decree holder filed an application before the tenancy court for ejectment of the petitioner. It was dismissed by the tenancy court, sirpur which was allowed to become final. The tenant, choudhari rama had other legal representatives, viz. , his sons and daughters apart from the petitioner. They were not brought on record. All of them are heirs to choudhari rama, the tenant, who also succeedped to the estate. Without impleading them the execution proceedings cannot go on the legislature ousted the jurisdiction of the civil court under the provisions of section 99 of the tenancy act. Therefore the decree is inexeutable. To substantiate his contentions, he examined himself as rw1. And got marked certain documents, exs b - 1 tob. According to him his father was a protected tenant in respect of s. No. 18 comprising of ac. 6 - 00 and odd situated at paregaon village and his father died intestats he was also a protected tenant in respect of s. No. 84. Ex. B - 1, the protected tenancy certificate discloses the above fact for the said objection, from the record, it would appear that the decree holders did not file any counter. No. Evidence was also adduced in rebuttal to the evidence adduced by the petitioner

(3) It may be mentioned here that e - p:2/75 possession of land bearing s. No. 84. Was taken and that other has become final. Therefore we are not concerned with respect to s. No. 84

(4) The lower court considered the evidence on record and held that the protected tenancy (ex. B - 1) is in respect of snos. 18and84the petitioner is the legal reprsentative of the judgment - debtor no. 11 the preliminary decree for partition was allowed to becom final. Therefore the petitioner cannot go behind the decree. He is bound by the decree. In ex. B - l the certified copy of the tenancy certificate, in column no. 7, the name of basheer bi as sister of shaik moosa, the original owner, is shown as the pattadar (decree holder in e. P. 12/78). The name of qureshi bi, the decree holder in e. P. 13/78 did not find place. In the absence of the qureshi bi in the protected tenancy certificate, the father of the petitioner cannot be said to be a protected tenant of qureshi bi, exs. B2 to b5 which were filed to show certain lease amounts paid to one jahangir baig were not proved to be in respect of the lands shown in ex. B - l protected tenancy certificate. Therefore the objection was over - ruled and directed the petitioner to deliver possession of the lands in survey no. 18 to the decree holder. Against the said order, the above revision - petition has been filed

(5) It is contended for the petitioner that when the father of the petitioner was impleaded as a party - defendant to the suit,it was only with a view to see that he is bound by the decree of allotment of the share of property in his possession to the successful heir who gets it allotted in the final decree and to take symbolic possession in the execution of the final decree. But his rights to the tenancy shall continue to subsist. In view of the prote cted tenancy certificate ex. B - lissued by the tahsildar,the competentauthority the decree holders are bound by the said certif icate. By virtue thereof, the right, title and interest in the property stands vested in the protected tenant and petitioner's and other heirs' possession cannot be disturbed even though his father is a party to the decree. He relied upon a judgment of the division bench ot the allahabad high court reported in amarnath v. Dharam chand in support of his contention that the decree is only to obtain symbolic possession. The observation of the lower court that the protected tenancy certificate (ex. B - 1) does not show the name of qureshi bi, is beyond the jurisdiction of the civil court. The protected tenancy certificate was allowed to become final. As on the date when the said certificate was issued, the name of the real owner has been shown and that by virtue of the inter se claims between the persons claiming title from the original owner, it cannot be said that ex. B - l certificate is invalid. It is not the case that the lands in s. No. 18 does not belong to the original owner and that the protected tenancy certificate does not. Relate to these lands. No, counter affidavit has been filed and no evidence has been adduced in rebuttal. In view of the evidence on record, the lower court cannot go behind ex. B - l and decide its validity in execution proceedings

(6) On the other hand, it is contended for the respondent - decree holder that the father of the petitioner was a party to the preliminary decree and he did not raise the plea of protected tenancy at the time of passing of the preliminary decree. The judgment - debtor (choundhari rama) allowed the preliminary decree to become final. It is not open to the petitioner, being his legal respresentative to go behind the decree. The decree is binding en him. The executing court cannot go behind the decree. Thefinding of the lower court that the protected tenancy was not properly proved is also a finding of fact. Therefore, this court cannot interfere with the order under section 115, c. P. C.

(7) Upon these rival contentions, the real questions for consideration are; (1) whether the executing court can go into the question of the legality of ex. B - l, the protected tenancy certificate; (2) whether the civil court has jurisdiction to pass decree of ejectment against the protected tenant: (3) whether the decree can be executed against the petitioner in respect of the lands in survey no. 18; and (4) whether this court can interfere with the order under section 115, c. P. C.

(8) The answer to these questions hinge upon the consideration broadly of the relevant provisions of the andhra pradesh (tclangana area) tenancy and agricultural lands act) xxi of 1950) , hereinafter referred to as the act, and the rules made thereunder.

(9) The act was enacted, amending the law to regulate the relations of landholders and tenants of agricultural land and the alienations of such lands and the matters connected therewith, etc. This is an agrarian reform brought about by the competent state legislature in giving effect to the constitutional goal of ushering in socialist republic conferring ownership rights to the tiller of the soil

(10) Under section 2 (c) , agricultural land was defined to mean, land which is used or capable of being used for agriculture or reserved for growing forests and includes fallow land, etc.

(11) Section 2 (f) defines 'to cultivate' to mean to carry on agricultural operations;

(12) Section 2 (r) defines protected tenant, to mean a person who is deemed to be a protected tenant under the provisions of this act; sec. 2 (u) defines 'tenancy' to mean the relationship of landholder and tenant

(13) Section 2 (v) defines 'tenant' as to mean an assami shikmi who holds land on lease and includes a person who is deemed to be a tenant under the provisions of the act.

(14) Sections 5 declares the persons deemed to be the tenants.

(15) Sections 34 to 46 in chapter iv deal with the rights of protected tenants,

(16) Section 34 declares that a person shall, subject to the provisions of sub - sections (2) and (3) be deemed to be a protected tenant in respect of land if he (a) had held such land as tenant continuously for specified period,. (b) has cultivated such land personally during such period.

(17) It is not necessary to deal in detail of the nature of the persons,

(18) Section 36 gives power to recover possession by protected tenant of the lands in which he is not in possession at the commencement of the act.

(19) Section 37 gives protection to every person who, at the commencement of the act, holds as tenant any land in respect of which no person is deemed to be a protected tenant under section 34.

(20) Section 37 - a declares that notwithstanding anything contained in this act, every person who at the commencement of the andhra pradesh (telangana area) tenancy and agricultural lands (amendment) act, 1955, holds as tenant any land in respect of which he is not deemed to be a protected tenant if certain conditions specified are available to reckon with.

(21) .section 38 gives right to the protected tenant to purchase the lands.

(22) Section 38 - a provides the procedure to determine reasonable price as agreed to between the land holder and protected tenant.

(23) Section 38 - b provides procedure when land - holder agrees to relinquish his rights in favour of the protected tenant.

(24) Section 38 - c provides minimum holding in case of sale.

(25) Section 38 - d provides procedure when land - holder intends to sell land to a protected tenant.

(26) Section 38 - e conferes power on the government to issue notification in the andhra pradesh gazette to declare in respect of any area specified therein that ownership of all lands held by protected tennants which they are entitled to purchase from their land - holders in such area under any provision of this chapter shall. Stand transferred to and vest in the protected tenants and from such date the protected tenants shall be deemed to be the full owners of such lands.

(27) In exercise of the powers conferred by sub - sections (l) and (2) (i) of section 97 read with sections 35 and 37 of the act, the government framed the andhra pradesh (telangana area) tenancy and agricultural land rules, 1950 to effectuate the rights conferred in chapter iv of the act.

(28) It contemplates of an application, being filed under section 35 either by the landholder or tenant for determination of the question whether any person, if so, what parson is to be deemed to be a protected tenant under section 34 in respect of any land. The landholder shall file his application in form no. 1 and in form i - a the tenant shall have to file an application.

(29) Rule 8 contemplates enquiry.

(30) Rule 10 provides a certificate to be issued in the prescribed form by the tribunal to a protected tenant under sub - section (6) of section 38.

(31) Rule 11 provides the manner of deciding questions arising in respect of purchases of land by a protected tenant

(32) Rule 12 provides application for exchange of tenants.

(33) Rule 13 provides for terms and conditions for exchange of lands.

(34) Rule 14 provides certificate of exchange of lands between protected tenants.

(35) Rule 15 provides manner of apportioning rent on the termination of the tenancy in respect of a part of the land leased to a protected tenant.

(36) Rule 16 provides application for determinntion of compensation for improvements made by protected tenant.

(37) These rules were further amended and the government have framed rules, under section 97 read with section 37 - a of the act. The amended rules are called andhra pradesh (telangana area) protected tenants rules 1956. Under these rules, the tribunal was given power to enquire, into and the procedure was adumbrated therein.

(38) Thereafter, the government issued order in g. O. Ms. No. 125, revenue (o) dated 22nd february 1973 framing andhra pradesh (telangana area) protected tonents (transfer of ownership of lands) rules, 1973. Procedure has been provided therein for publication of notices making enquiry giving opportunity to parties concerned and determination of reasonable price and depositing the price by the protected tenant and the consequences of default in payment of the rent, instalments thus fixed.

(39) The government issued further notification in g. O. Ms no 3 revenue (g) dated 1st january 1973, under section 38 - e called the andhra pradesh (telangana area) tenancy and agricultural lands act, 1950 whereunder the ownership of all lands held by the protected tenants which they are entitled to purchase from the landholders in the said districts under any provision of chapter iv of the said act, shall, subject to the condition laid down in sub section (7) of section 38 of the act stand transferred to and vest in the protected tenants holding the said lands and from the sais date protected tenants shall be deemed to be the full owners thereof.

(40) It may be made clear at this juncture that the constitutional validity of the andhra pradesh (telangana area) tenancy and agricultural lands act was assailed more than once and secured seal of validity. The latest being the andhra pradesh amendment act 2 of 1979 introducing section 38 - e (2) proviso (introduced through amendment act 2 of 1979). A division bench of this court in g. Chennaiah v. State of andhra pradesh upheld the constitutional validity and held that.

"under section 38 - e (1) the ownership of all lands held by a protected tenant stand transferred to him on the notified date and a certificate of ownership can be issued to such a protected tenant even if he was out of possession of the lands and eventhough possession has not been restored to him in accqrdance with the provisions of the explanation and a certificate issued by the competent authority under sec. 38 - e will be valid. The validity of certificate issued under sec. 38 - e after following the prescribed procedure cannot be challenged at the stage of delivery of possession under the amended proviso to sec. 38 - e (2)"

Section 35 of the act declares that the decision of the tahsildar declaring a person to be protected tenant, etc. Shall be conclusive and his rights as such shall be recorded in the record of rights and where there is no record of rights in such villagee record as may be prescribed.

(41) : section 40 declares that all rights of a protected tenant shall be heritable.

(42) Sub - section (2) of section 40 declares that if a protected tenant dies his or her heirs shall be entitled to hold the tenancy on the same terms and conditions on which such protected tenant was holding the land at the time of his death and such heirs may, notwithstanding anything contained in this act, sub - divide inter se according to their shares the land comprised in the tenancy to which they have succeeded.

(43) Sub - section (3) thereof states that if the protected tenant dies without leaving any heirs, all his rights shall be extinguished.

(44) Section 90 provides right of appeals and revisions against the orders passed by the tahsildar etc. ,

(45) Section 99 creates a bar of jurisdiction, which is to the following effect:

" (1) save as provided in this act, no civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this act required to be settled, decided or dealt with by the tahsildar, tribunal or collector by the board of revenue or government. (2) no order to the tahsildar, tribunal or collector or of the board of revenue or government made under this act, shall be questioned in any civil or criminal court."

(46) Section 104 declares that this act and any rule, order or notification made or issued thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other enactment with respect to matters enumerated in list ii in the seventh schedule to the constitution of india or in any instrument having effect by virtue of any such other enactment.

(47) A cursory glance of the above provisions of the act and the rules, would demonstrate in unmistakable terms that the act creates indefeasible and heritable fights of ownership in the agricultural lands mentioned in the certificate and held by the protected tenant, forum for adjudication was created and conclusive nature of declaration to the certificate issued by the competent authority was attached and finally given save as provided under the act. , the jurisdiction of the civil court to go into these questions arising thereunder was speifically ousted. Thus, the act in respect of the matters covered thereunder is a complete code by itself.

(48) In this regard, the decision reported in sharfuddin v. Sama yelluga may be noted. His lordship, the hon,ble chief justice subba rao of this court (as his lordship then was) , in the above case, held that.

"the scheme disclosed by the provisions of the act is to regulate the relationship between the landholders and tenants and it does not affect the rights inter between two persons setting up rights of ownership to a particular land or dispute between an owner and a trespasser or a person other than a tenant. Bur 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 on the tahsildar. In such cases, the civil court has no jurisdiction."

(49) In barraclough vs brown the house of lords held that when a special statute gave a right and also provided a forum for adjudication of the rights, the party has to seek his right only under the provisions of that act and the civil court has no jurisdiction to decide that question.

(50) In doe vs bridges are the famous and oft quoted words of lord tenterden, cj saying:

"where an act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in auy other manner."

(51) This statement of law was approved not only by the house of lords in several cases, but also by their lordships of the supreme court, in premier automobiles k. S. Wadke where their lordships were called upon to consider whether the civil court can decide a dispute squarely coming within the provisions of the industrial disputes act. While considering that question, their lordships laid down four propositions and proposition no 3 is germane and relevant for cousideration here. It is as fellows:

" (3) if the industrial dispute to the enforcement of a right or an obligation created under the act, then the only remedy available to the suitor is to get an adjudication under the act."

(52) In view of this position of law, the question that arises for consideration is, whether the lower court can go into the legality or correctness of ex. B - 1 protected tenancy certificate issued by the tahsildar, i have carefully and anxiously considered the facts and i have no hesitation to hold that the lower court has no power to enquire into the correctnese or legality or binding nature of the tenancy certificate (ex, b - l) issued by the competent authority viz, the tahsildar, to choudhari rama, judgment debtor no. 11. At the cost of repetition, it may be mentioned here that the respondent did not file any counter disputing the correctness of the certificate or its binding nature. No. Evidencs was adduced to rebut the evidence by the petitioner (r. W. I.) therefore, the finding of the lower court that the respondent is not bound by the tenancy certificate, ex. B - 1 issued by the tahsildar, is in excess of its power and without jurisdiction.

(53) The next question for consideration is, whether the petitioner can go behind the decree it is well settled position of law that the judgmentdebtor cannot go behind the decree which he allowed it to become final. The question in this case is whether the lower court :s competent to pass a decree of ejectment against choudhari rama, the original judgment debtor/ the order dismissing the potition for eviction became final. The question relating to the enforceability of the decree depends upon the competency of the court that passed the decied if it has no jurisdiction to enquire into the it is a case of inherent luck of jurisdiction, in the sense that it could not have seized of the case, because by intervention of legislature the subject matter became wholly foreign to its juriediction. The consequences thereof were succinctly stated by their lordship, of the supreme court in kiran singh chaman paswan thus it is a fundamental principle well - established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to bo enforced or relied upon, even at the stage of execution and even in collateral procedings a defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect of the subject - matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured by consent of parties. "

(54) In b. V. Patankar v. C. G. Sastry the question that arose frome their lordships of the constitution bench of the supreme court was who were the executing court when it was brought to its notice that the decree passed was in contravention of the provisions of a statute and that delivery of possession in execution of such decree was given to the decree - holder, whether such possession can be resided to the tenant. It was held that

"where the executing court ignores the provisions of the rent control order prohibiting eviction of tenants an4 passes an order of delivery of possession in execution of a decree the order can be set aside and an order of redelivery to the tenant can be passed on an application under section 47 read with section 151 c. P. C."

(55) The above decision is an authority for tne proposition that where the decree was passed by the civil court in derogation of the statutory mandate the executing court can take note ths said event and even when possession was delivered in execution of such decied its validity can be set at naught and it is incumbent upon the court restitute possession to the tenant. Us invalidity looms large. It is the duty of the court to undo injustice meted out to the judgment debtor.

(56) In view of the provisions in chapter iv of the act. Referred to above, giving exclusive jurisdiction to the tahsildar to decide the rights of the protected tenant: issuance of the certificate in the prescribed form transfer of the ownership of the lands specified therein and vesting thereof in the protected tenant: conferment of full ownership right, title and interest in him, the declaration made by the tahsildar to be conclusive between the holder of the certificate or other persons interested in the land through him and one landholders or the persons interested in the land through him and the ouster of jurisdiction of the civil court, the irresistable conclusion is that the lower court inherently lacks jurisdiction and the decree of ejectment of the proptected tenant from the lands covered under ex. B - 1 certificate is a nullity because the provisions of chapter iv strike at the very authority of the lower court to pass the impugned decree. The plea can be set up even at the stage of execution, as rightly done in this case. Otherwise it would have the effect of nullifying the operation of the statutory provisions in chapter iv of the act to the extent of the petitioner and deprive the protected teant of his valuable and indefeasible right, title and interest in the land created in his favour, under the tenancy certificate ex. B - l. Such effect shall not be countenanced when it is brought to the notice of this court

(57) No doubt at the time when the suit was instituted in the year 1950, the rights of the tenant contemplated under chapter iv of the act were not crystalised, but subsequently, ex. B - 1 certificate was issued. It is not apparent from the record that at what stage of the proceedings in the suit the certificate was issued. But by operation of law, the certificate was issued. Perhaps, in the suit, 11th judgement debtor, choudhari rama then a tenant was impleaded co - nominee as a party - defendant to the suit to bind him to the decree of possession to be delivered to the rightful heir in the partition decree and take symbolic possession. Occe it is recognised that he is a tenant, his tenancy rights are to be governed by the provisions of the act and he shall not be ejected by the decree of possession unfess one of the conditions prescribed under the provisions of the act are complied with. Subsequently his rights are crystalised by issue of ex. B - 1 which has declared ownership rights therein which is conclusive and became final. Thereunder, all the rights of the lands in s. Nos. 18 and 84 stand transferred and vested in choudhari rama. As alreaby stated, we are not concerned with s. No. 84. Those are indefeasible rights. His possession shall not be disturbed except in accordance with the provisions of the act,

(58) It is contended for the respondent that the father of the petitioner (choudhari rama) being a party td the suit, allowed the decree to become final and therefore he is estopped from assailing the binding nature of the decree. I ama fraid, i. Cannot accede to this contention. Consent or waiver docs not confer jurisdiction or authority on a court or tribunal which lacks its inherent jurisdiction over the cause or the subject matter. It may be that case where the court had undoubted jurisdiction, but there was defect in the proceedings and no objection was taken but a howed the court to proceed with the matter and the court or tribunal passed decr. Ee or final order the roon. Having suffered such a decree or order, it may not be open to the unsuccessful party to assail its correctness taking advantage of the defect or illegality in such proceedings. But in this case the court lacks inherent jurisdiction to take cognizance of the cause or to pass a decree thereon and it strikes at the very authority to pats the decree. In such an event, as held by their lordships of the supreme court in kiran singh v. Chaman paswan its validity can be set up whenever and wherever it is sought to be enforced even at the stage of execution or even in collateral proceedings.

(59) The decision reported in ledgard v. Bull is an authority for the proposition that consent does not confer jurisdiction on the court. The facts therein were that a suit under the patents act had to be instituted in the court having original jurisdiction. But the suit was instituted in the court of the subordinate judge which has no jurisdiction. Thereafter, an application was filed before district court for transfer. The suit was transferred to the district court. The district court which has jurisdiction tried the suit. It was contended that the suit not having been properly instituted in the first instance in the district court, the decree passed by the district court is a nullity and it is not binding on the party. While answering that question, their lordships of the privy council have held that.

"a suit having been instituted in the court of the subordinate judge, who was incompetent to try it, the same was transferred by consent of parties to the court of the district judge for convenience of trial, but such transference was incompetent, and that such consent did not optrate as a waiver of the plea to the jurisdictiion which was taken in the defendant' s written statement ana subsequently insisted upon."

(60) Therefore it is an authority for the proposition that where the court has no inherent jurisdiction over the subject matter of the suit, the parties cannot, by their mutual content or acquiescence convert into a proper court, nor the parties bound by the decree passed by such a court. It was already noticed that their lordships of the supreme court in kiran singh v. Chaman paswan specifically held that "even coment doss no cure the defolt. "

(61) The case reported in ferozi lal v. Mamnal is also an authority for the proposition that the invalidity of the decree can be assailed at execution. The court is invested under a statute to pass a decree on satisfacti on of certain grounds mentioned therein. But on the basis of a mere compromise entered into between the parties, it passed a decree for ejectment: it was contended by the judgment - debtor at execution that the decree is a nullity since it does not satisfy the statutory requirement and therefore it does not bind him. That plea was upheld and their lordships, while considering that contention, held that

"the jurisdiction of the court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds mentioned in section 13 (1) have been proved. Where the court had proceedtd solely on the basis of the compromise arrived at between the parties, the court was not competent to pass the decree. Hence the decree under execution must be held to be a nullity."

In support of their decision, their lordships relied upon another decision reported in bahadursingh v. Muni subrat dass wherein it was held that

"as the decree for delivery of possession of the premises to the landlord is a nullity it cannot be enforced or executed either by the landlord or by the landlord's son muni subrat."

The same view was taken in another decision of the supreme court in kaushalya devi v. K. L. Bansal.

(62) In the court of appeal, in bartan v. Fincham atkin, l. J. Held that: -

"parties cannot by agreement give the courts jurisdiction which the legislature has enacted they are not to have. The court cannot give effect to an agreement whether by way of compromise or otherwise, inconsistent with the provisions of the act."

(63) Same is the view in peachery propety corporation v. Robinson per winn. L. J.

(64) Therefore, on a consideration of the authoritative pronouneements referred to above, i have no hesitation to hold that the lower court has no jurisdiction to pass a decree of ejectment against the original judgment debtor (choudhari rama) who was found to be a protected tenant whose rights have been conclusively declared in ex. B - 1 as per sec. 35 of the act. Therefore the decree to the extent of ejectment of the judgment debtor no. 11, is a nullity and it is not binding on the petitioner, one of the legal representatives of the deceased protected tenant whose rights are heritable under section 40 of the act. Its invalidity can be assailled in the execution proceedings.

(65) The next question for consideration is, whether this court can interfere with the order in exercise of the revifional power under section 115 c. P. C. In view of the finding that the decree is a nullity and execution proceedings are proceeded with, to enforce that void decree, it cannot but be held to be without jurisdiction. When the lower court did not consider this aspect in proper perspective, it had committed material irregularity in exercise of its jurisdiction. Therefore i have no hesitation to hold that the low or court proceeded on a erroneous assumption of jurisdiction resulting in fallare of justice nullfying the effect of the beneficial provisions of the act referred to above. In those circumstances, this court has certainly get jurisdiction and is within its power under sec 115 c. P. C. To interfere with such an order. Accordingly, i allow the c. R. P. And of aside the order and dismiss the f. P. 13/78 in the circumstances to the extent of s. No. 18 of paregaon village but in the circumstances, without costs.

Choudari Rama (Died) Per L.R Choudary Ganapathi v. Qureshi Bee

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent / Decree-holder's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Implications

Choudari Rama (Died) Per L.R Choudary Ganapathi v. Qureshi Bee

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