1. This C.R.P arises against an order of the Joint Collector, Adilabad, confirming the order of the Revenue Divisional Officer upholding the conferment of ownership rights to respondents 1 and 2, viz., Keshav and Bapurao, Scheduled Tribe-protected tenants, under Section 38-E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, for short “the Act” in an extent of Ac. 6.37 guntaseach to each respondent in Survey No. 4 of Burnoor village of Adilabad Taluk.

2. The case of the petitioners is that originally the lands belonged to one Kasinath, the 3rd respondent land holder. He is stated to have entered into an agreement of sale dated May 13, 1961 with the third petitioner, G. Bapurao followed by delivery of possession on receiving the entire sale consideration and executed and registered a sale deed on January 6, 1965. He, in turn, entered into an agreement of sale with petitioners 1 and 2, on May 13, 1970, received the entire sale consideration and they were put in possession of the lands and they have been in possession and enjoyment of the same. They claimed that before purchase, they ascertained and found from revenue records that Sambu Gond, father of respondents 1 and 2 has voluntarily surrendered possession prior to 1954 and their rights as protected tenants were lost and therefore they are neither in possession nor have any interest for issue of ownership certificates and the conferment of owership rights in the enquiry under Sec. 38-E is illegal. The case of the respondents is that their father Sambu Gond was the protected tenant and on his demise intestate, they succeeded to the rights of their father and they have been continuing in possession and enjoyment and the lands were never surrendered. Initially by order dated April 30, 1975, the ownership rights under Sec. 38-E of the Act were conferred on the respondents 1 and 2, but on appeal, it was set aside and the case was remitted to the Original Tribunal for reconsideration. On remand again, it was considered and granted ownership rights in favour of respondents 1 and 2, by order dated July 9, 1981 and on appeal, the Joint Collector, Adilabad, by order dated December 10, 1984, confirmed the said order. Thus the Revision petition. The Tribunals below have as a fact that respondents 1 and 2 never surrendered their rights as protected tenant. The alleged oral and voluntary surrender is not established. The purchase by Ganta Bapurao, the third petitioner is in violation of Sections 47 and 50-B of the Act. Therefore, the sale is null and void. No notice was issued by the landholder under Sec. 38-D offering to sell the land to the protected tenants. The recital in the agreement of sale dated May 13, 1961 that there are no protected tenants in the lands, is false. The petitioners therefore did not acquire any ownership right or title. The respondents 1 and 2 “will still be deemed to be protected tenants of the said lands”. Kasinath the original landholder, as on 1-1-1973, held Ac. 104-04 which was more than two family holdings.

3. The finding that the respondents 1 and 2 have not voluntarily surrendered their protected tenancy rights is a finding of fact, based on the evidence on record and in fairness, the learned counsel for the petitioners, did not dispute the correctness thereof. I confirm the same. Though a contention was raised before the Appellate Tribunal that the enquiry under Sec. 38-E was not properly held, that contention too is not fairly reiterated before me Sri Subhasan Reddy petitioners' learned counsel raised twofold contentions. As on 1-1-1973 i.e, the date on which Section 38-E came into force, the petitioners are the landholders under the Act and they are not possessed of two or more than two family holdings. The sale made in favour of Ganta Bapurao is perfectly valid. Secs. 47 and 50-B were deleted from the statute book. Therefore the need to obtain sanction is obviated. Therefore, the third petitioner acquired valid title. He entered into an agreement of sale with petitioners 1 and 2, and therefore they also became the landholders. Since they are not having two family holdings, the conferment of ownership rights on respondents 1 and 2, is per se illegal. The second contention raised is that at no point of time the respondents 1 and 2 or their father were in possession. The documentary evidence adduced, viz., Pahanis would establish the said fact. Therefore it must be deemed that they have voluntarily surrendered their protected tenancy rights and they are not in possession as on the date of enquiry. The third petitioner perfected his title by adverse possession. Therefore the conferment of the ownership rights cannot be made in favour of the respondents 1 and 2. In support thereof, he relied on C. Narsaiah v. Tahsildar: Mahabubabad (1) 1978 (2) A.P.L.J 36 The right of part performance is still available. He relied on Syed Tajuddin v. Syed Ahmed (2) 1982 (1) A.L.T 6 (NRC) The essential question is whether the respondents 1 and 2 are protected tenants. The Tribunals below held them to be protected tenants. It is sought to be desisted. The first question therefore is whether the sale of the land in favour of 3rd petitioner is valid in law?

4. It is the case of the petitioners themselves that the third petitioner entered into an agreement of sale on May 13, 1961. He paid full consideration thereof followed by delivery of possession and the regular sale deed was executed and registered on January 6, 1935 and thereby he acquired indefeasible title to and possession of the lands in dispute. Admittedly, Kasinath, the landholder held 104.04 acres and it is more than two family holdings. Section 47(I) of the Act held its field till March 18, 1969. It postulates that no permanent alienation and no other transfer of agricultural land shall be valid unless it has been made with the previous sanction of the Tahsildar. Section 2(o) defines “permanent alienation” to include any sale, exchange or gift and any transfer of a right of occupancy or of the patta of a holding but excluding any disposition by will. The need to obtain previous sanction under Sec. 47 from the Tahsildar for permanent alienation is mandatory and any permanent alienation or other transfer in contravention thereof, unless it is duly validated by operation of Section 50-B of the Act, is null and void. This position of law is no longer res integra. There are several Bench decision let alone the decisions of learned Single Judges of this Court are available in the reports. In Syed Jalal v. Targopal Ram Reddy (3) AIR 1970 A.P 19 the question arose was whether an agreement of sale is valid and could be enforced by a decree of specific performance without obtaining the prior sanction of the Tahsildar. Jaganmohan Reddy, C.J (as he then was) speaking for the Bench held that there is no prohibition under law to enter into an agreement but before a sale-deed is executed, it is mandatory to obtain the sanction of the Tahsildar as required under Section 47 of the Act. While holding so, it was also held that the transfer without the permission of the Tahsildar is invalid and possession delivered thereunder would be deemed to be unauthorised or wrongful. The word “possession” and “transfer” have been used not as identical or synonymous terms but as connoting different concepts. Even a person who dispossesses a true owner under a claim of title which is not valid or a landlord who dispossessed his permanent tenant without the sanction of the Tahsildar would also be in wrongful possession. The sanction of the Tahsildar is a condition precedent for the validity of a permanent alienation or other transfers. What is prohibited and what is invalid is transfer or alienation of legal right, title or interest which confers a right to possession of agricultural land and if it is without the permission of the Tahsildar, it is invalid in law. It is to remember that in that case by the time the judgment was rendered. Sec. 47 was on the statute book and was so available to obtain sanction. Lachmamma v. Kuppala Chinnavenkata Reddy (4) I.L.R 1974 A.P 119 is a suit for declaration of title and possession. The question arose therein was whether the vendee could defend his possession on the plea of part performance of the contract under Sec. 53-A of the Transfer of Property Act. In that context, Gopal Rao Ekbote, J. (as he then was) speaking for the Bench held that even in respect of transfers effected prior to March 18, 1969 transferee could obtain validation under Sec. 50-B. Until and unless such transfers are validated under Sec. 50-B the invalid transfere are continued to be invalid. The mere deletion of Section 47 or introduction of 50-B does not by itself validate all the transfers which were invalid, such invalid transfers do not become legally enforceable unless a seal of approbation is put by the Tahsildar by granting certificate validating the sale. It was expressly stated thus:

“………but merely because of that (deletion of Section 47) we fail to see how by necessary implication it must mean that the transfer itself was valid. If it were to be valid, no procedure was required to validate it by the Tahsildar under Sec. 50B. Sec. 50B as seen does not by itself and without anything further validate all transfers made prior to 18th March 1969 without the permission of the Tahsildar.”

5. In that case, since the right to get validation is obviously available it was held that the statutory right of defence of part performance under Sec. 53-A was available. In Kullu Chenna Reddy v. Gogu Hanumanth Reddy (5) 1977 (2) A.P.L.J 28 (NRC) : C.R.P 1233/76 d/9-7-1977 another Division Bench was called upon to consider the validity of the agreement of sale followed by possession, whether it is necessary to obtain validation under Sec. 50-B. It was contended that it was a sale but not an agreement. M. Ramachandra Raju, J. speaking for the Bench held that the document in question is only “an agreement of sale:” (it was written on a plain paper and unstamped and unregistered). Thereunder the entire consideration was paid and possession of the land was also delivered to the vendee. On those facts, the Bench held that it is a transfer of right to be in possession. The transfer of right of occupancy can also mean transfer of a right to be in possession and enjoyment. The transaction was held to be a permanent alienation attracting Section 47 and required validation under Section 50-B.

6. By Act 12 of 1969, Section 47 and its allied sections, viz., Sections 48, 49, 50 and 50-A were omitted. Sub-section (1) of Section 50-B was suitably amended and introduced Section 50-B in the present form empowering the Tahsildar to validate the sales made on and from June 10, 1950 upto specified date and was extended from time to time upto March 31st, 1972, under Sub-section (1) thereof. Under sub-section (2), the Tahsildar shall hold an enquiry as contemplated therein and shall issue a certificate declaring the alienation or transfer as valid. Such a certificate shall be “conclusive evidence of such alienation or transfer as against the alienor, transferor, or any person claiming interest under him.” The legislative history, the object of the amendment and the consequential legal effect of non-validation of permanent alienation or other alienations made without obtaining the prior permission of the Tahsildar was exhaustively considered by another Division Bench following the two earlier Bench decisions, in M. Pocham v. Agent, State Government, Adilabad (6) AIR 1978 A.P 242. It is needless to resurvey it once over, but suffice it to cull out the conclusions. The facts therein are that the agricultural lands are situated in scheduled area of Telangana region. Agreements of sale were entered into without obtaining previous sanction under Sec. 47 of the Act nor were they validated under Sec. 50-B. Consideration was paid followed by delivery of possession thereunder. After the Andhra Pradesh Scheduled Area Land Transfer Regulation, 1959 brought into force in the Telangana region i.e, December 1, 1963, sale deeds were got executed by the non-tribals from the tribals, but no validation under Section 50-B were obtained. The non-tribals petitioners were sought to be ejected treating the sales as nullity under Section 3 of the Regulation of 1959. Those actions were assailed ultimately in the writ petitions, pleading protection of Section 53-A of the Transfer of Property Act. On those facts, the Bench was called upon to consider whether the protection under Sec. 53-A of the T.P Act was available to the purchasers. In view of the conflict of decisions in that regard, under the regulation it was referred to the Division Bench. Sambasiva Rao, J. (as he then was) speaking for the Bench considered the provisions of the Act and the Regulation of 1959 and held that if there is no valid certificate (under Sec. 50-B), the alienation or transfer though accompanied by possession, would not be treated as valid. This facility (validation under Sec. 50-B) was afforded to the alienee with the obvious intention of giving them an opportunity to get their alienations or transfers validated upto March 31st 1972 though they were invalid for want of previous sanction by the Tahsildar. A contract in pursuance of which possession of the property has been given to the alienee is not a contract of sale simplicitor and has a higher status for, it creates an interest in the property that is agreed to be sold under the contract. That higher interest is stated in Sec. 53-A of the T.P Act. When a contract is entered into accompanied by possession, it is clearly transfer of a right of occupancy. The contract of sale accompanied by possession is permanent alienation and that no previous sanction of the Tahsildar has been obtained. It must, therefore, necessarily follow that the possession given along with contract of sale was invalid and unlawful. The possession obtained under Sec. 53-A of T.P Act must only be in a lawful manner. Sec. 53-A does not give protection to the transferees whose possession of the property is contrary to law in force and applicable to them. Sec. 53-A protects only to such possessions which were valid and lawful and does not safeguard possessions which are invalid and unlawful. Thereby they become liable to be summarily evicted by the Collector. Though Section 47 was deleted, the invalid transfers which had taken place from 1950 to 1969 could be validated with the aid of proceedings under sec. 50-B and thereby the invalidity could be cured. Sec. 50-B was introduced with a definite-purpose to save the invalid transactions that have taken place between June 10, 1950 to March 18, 1969 and the time was extended finally upto March 31, 1972. If the transferee or alienee did not avail himself of this opportunity of getting his alienation and possession validated under Sec. 50-B, he should suffer the consequences, since the transfer and delivery of possession in his favour remained invalid and unlawful. After March 31, 1972, there is no possibility of validating all the invalid transactions that took place preceding that date. Therefore there is no indefeasible title or right created in favour of the alienees before December 1, 1963 on which date 1959 Regulation came to be applied to the Telangana region and by operation of Section 3 of the Regulation, the sales are void. The contract of sale and the unauthorised and illegal possession of the land are null and void and the protection of Section 53-A of the T.P Act is not available.

7. The above ratio would squarely apply to the facts of this case. As seen earlier, the claim of the petitioners themselves is that the 3rd petitioner came into possession pursuant to the contract of sale and culminated in sale-deed and he claims to have continued in possession till he delivered possession to petitioners 1 and 2 pursuant to the agreement of sale dated May 13, 1970 and they are claimed to be continuing in possession. Contract of sale is a permanent alienation under Section 2(o) of the Act. Admittedly the 3rd petitioner did not make avail of either the sanction under Sec. 47 of the Contract of sale or the sale-deed itself nor even got validated them under Section 50-B till March 31, 1972. Therefore his alleged possession is not only not valid, but also unlawful and the sale itself is void, being opposed to public policy under Sec. 23 of the Contract Act. Equally of the petitioners 1 and 2 of their agreement of sale and it does not create active title but enables to retain possession on their willingness to perform their part of the contract. Therefore petitioners 1 and 2 too did not acquire right, title or interest or interest to occupancy that confer right to possession. If really the alleged agreement of sale dated May 13, 1961 and the sale-deed dated January 6, 1965 were real and bonafide transactions for valuable considerations, it passes beyond one's comprehension why the third petitioner had remained silent all these years without obtaining sanction as required under section 47 till March 18, 1969 or their validation under Sec. 50-B till March 31, 1972. Equally so of the petitioners 1 and 2. Had sanction been sought or an enquiry been held under Sec. 47 or Sec. 50-B, notice was required to be given to respondents 1 and 2 and they would have projected their rights in the said enquiry. The animation of sub-section (2) of Sec. 50-B is to ascribe conclusiveness to the certificate issued under Sec. 50-B so as to be binding on the persons claiming under the alienor or the transferee. Had the transactions been genuine and bonafide, they would not have omitted to have taken recourse to these statutory procedure so that a certificate under Sec. 50-B would have attained conclusiveness and the respondents are bound thereby. The omission thereof furnishes an, eloquent testimony to corroborate the fabrication of the revenue records to serve as defence at a later date. It is equally important to note, that from the very case the petitioners admit that Sambu Gond, the father of respondents or respondents 1 and 2 themselves are the protected tenants. Their case that the respondents voluntarily surrendered their protected tenancy rights and the consequential surrender of possession was negatived by both the tribunals below and it is affirmed. The necessary conclusion therefore is that Sambu Gond was initially the protected tenant and on his demise respondents 1 and 2 inherited the right to protected tenancy by operation of Sec. 40 of the Act and they have continued to be the protected tenants. When we consider the case in the above perspective, it may be legitimate to infer that these transactions appear to have been propped up at the behest of Kasinath, the landholder, who admittedly had more than two family holdings to avoid the rigour of the law. Therefore, the transactions in question are sham and nominal and the petitioners appear to be accomodating the landholder Kasinath.

8. It is mandatory under Sec. 38-D of the Act for the landholder Kasinath to give notice in writing of his intention to sell the lands and offer to sell them to the respondents and admittedly no such offer was made. Sec. 38-D further provides that only if the protected tenants, i.e, respondents 1 and 2, on receipt of the intimation, if they do not express their readiness in writing to purchase the same within six months from the date of receipt of such notice, then and then only the landholder, has a statutory right to alienate the lands to others. In other words, the 3rd respondent did not follow the mandatory procedure of Sec. 38-D. On the other hand, a false recital was made in the agreement of sale dated May 13, 1961 that there are no protected tenants. It is not the case therein that Sambu Gond or the respondents, surrendered their rights Voluntarily. In view of the fact that admittedly no such notice had been given, the sale itself is in violation of Sec. 38-D. The object of Sec. 38-D is to confer on the protected tenant the titulory right with to ownership in the agricultural lands. So the agreements and sale-deeds are opposed to public policy to defeat the provisions of Section 38-D and they are void under Sec. 23 of the Contract Act. So, any alienation made in contravention of Sec. 38-D shall have to be declared to be null and void. Considered from any perspective, I have no hesitation to hold that even on the petitioners' own showing, it must be held that the agreement dated May 13, 1961 obtained by the third petitioner, followed by possession and the execution of the sale-deed dated January 6, 1965 are null and void and inoperative. The further agreement by the 3rd petitioner in favour of petitioners 1 and 2 dated May 13, 1970 is equally, for the same reasons, void apart from the fact that the 3rd petitioner acquired no right to convey to them. Therefore the title continued to vest only with Kasinath, the third respondent landholder. Therefore, the question of the petitioners having less than two family holdings is redundant and need not be gone into. The next question is whether the petitioners have perfected their title by adverse possession? It is for the petitioners to establish by pleading and proof that they are in possession of the land in their own right and in assertion thereof, openly for a continueous period of twelve years to the knowledge of the respondents 1 and 2 or their father and that they acquiesced for the same. This is the view of this Court in Anjali Devi v. Swamy Linga Swamy (7) 1985 (1) A.P.L.J 28 NRC 1 : 1985 (1) ALT 52 (NRC). A reading of the orders of the Tribunals below would show that no such express plea has been taken nor proved. Therefore no finding has been recorded by the Tribunals below. Sri Subhasan Reddy learned Counsel placed reliance on C. Narasaiah v. Tahsildar, Mahabubabad (1) (Supra) in support of the plea of the petitioners of adverse possession and Syed Tajuddin v. Syed Ahmed (2) (Supra) to show that the Tribunals have no jurisdiction and doctrine of part performance is available to them. It is to remember that Sec. 98(1)(a) of the Act empowers the District Collector or his delegate to take summary proceedings to eject any person unauthorisedly occupying or wrongfully in possession of the land, the transfer of which either by act of the Parties or by operation of law, is invalid under the provisions of this Act……A tenant becomes liable to be ejected only by an order passed under Sec. 32 of the Act or a protected tenant under Sec. 44 of the Act and in no other manner. It is not the case of the petitioners that respondents 1 and 2 were ejected by taking recourse of these provisions. Their claim respondents 1 & 2 have voluntarily surrendered their occupancy right and possession is rejected. Therefore, the appellate Tribunal rightly recorded the finding that respondents 1 and 2 are presumed to be continuing obviously as a corollary to continue to be in possession as protected tenants. It is common knowlege that more than 95% of the ryots are illiterates and ignorant. Their farms are their world. Day in and day out they live in their farms being unmindful of what is happening around the world. Even many a time, what is happening in their village is only hear-say to them. Generally they are unaware of what revenue records are and how they are being maintained and whether their names are mentioned in the relevant columns therein. So long as there is no threat to possession of their lands in the occupation, their need to verify the records does not arise for them. Only when such a need arises, on advice, they make an effort to know of them. Maintenance of revenue records is the exclusive domain of the Patwaris or Karnams. It is common knowledge that many a time we come across that taking undue advantage of this exclusive privilege the revenue records are freely tinkered with and fabricated to suit the convenience of the persons that greeze their palms. Therefore it is not uncommon to see that the names of the persons in actual possession do not find place in the relevant registers. Therefore, merely because in the revenue records produced by the petitioners the names of respondents 1 and 2 do not find place leads to no automatic conclusion that they are not, in fact, in possession. In fact it is to be established as a fact after pleading and proof on giving an opportunity to the tenant. It would appear that for that reason no such express plea of adverse possession was taken in the Tribunals below. This conclusion gains fortification when we also read the Explanation to Section 38-E (1) which provides legislative presumption that the protected tenant “……” had held the land on the date of such notification”.

9. No doubt, in C. Narasaiah's case (1) (supra), the Division Bench held that after the persons in possession perfected their title by adverse possession, the Tahsildar has no jurisdiction to dispossess them parsuant to the proceedings under Sec. 38-E, Therein the Bench has invoked to its aid Section 27 of the Limitation Act, 1963 and held that after the expiry of 12 years, the right of the original owner gets extinguished and the appellants therein prescribed their title by adverse possession. It is well settled that the special statute shall prevail over the general statute. It is doubtful whether the principle of Section 27 could be extended to the procedings under the Act since express conferment of power under Sec. 3 read with Sec. 29(2) of the Limitation Act is limited only in respect of Secs. 3 to 25 and Sec. 29(2)(b) expressly excludes the applicability of the remaining provisions to special statutes. This aspect was not brought to the notice of the Division Bench. There is no express prescription of period of limitation provided either under Sec. 98 or under Section 38-E(1) and (2) of the Act to initiate proceedings for taking possession. It is presumptive that the legislature is aware of the existence of the predecessor Limitation Act 1963 viz., 1908 Act, when the Act was made and no express period of limitation was prescribed under the Act. But the need to go into that question is obviated from the fact that in that case there is an admission that the appellants were in possession for more than 12 years. But in this case, there is no such finding recorded by the Tribunals below. Even otherwise, the petitioner No. 3 is claimed to have been put in possession on May, 13 1961 and he parted with possession to petitioners 1 and 2 on May 13, 1970, i.e within ten years. Therefore, the third petitioner did not perfect his title by adverse possession. Equally petitioners 1 and 2 are claimed to have come into possession on May 13, 1970 and proceedings were initiated and orders were initially passed on April 30, 1975. Therefore the plea of adverse possession is not available to the petitioners and Sec. 27 of the Limitation Act is not applicable to proceedings under the Act.

10. There mains the assistance sought from the decision in Syed Tajuddin's case (2) (supra) There appears to be some misconception on the part of the petitioners to seek to rely on the doctrine of part performance couched under Section 53-A of the Transfer of Property Act. Section 53-A applies only between the transferor and the transferee under a valid contract for consideration any immoveable property by writing and the transferee must have been in possession of the property pursuant to the contract and he is ready and willing to perform his part of the contract. Then only he is entitled to preserve his possession. Any relief granted or protection afforded to the person in possession will be founded on the contract. In Ranchhoddas v. Devaji (8) (1977) 3 SCC 584 : AIR 1977 SC 1517 it is held that the important consideration is the contract and its existence and willingness to perform his part of the contract. Then notwithstanding the transferor has not completed the contract in the manner prescribed therefor by any law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and any person claiming under him any right in respect of the property of which the transferee has taken or continued in possession other than a right expressly provided by the transferee of the contract. This equitable doctrine is available as a shield but not as a sword. The doctrine of part performance thereby applies only as a defence to protect his possession. In Pir Bux v. Mohd. Taher (9) AIR 1934 PC 235 Lord Macmillan, speaking for their Lordships of the Privy Council held that the English equatable doctrine that “a contract for sale of real property makes the purchaser the owner in equity of the estate” is not available in view of Sec. 53-A and the English doctrine of part performance is not available by way of defence to an action of ejectment. Same is the view in Ariff v. Jadunath Majumdar (10) AIR 1931 PC 79 It is well settled law that Section 53A creates no active title on the defendants. He can lay no suit on that basis either for title or possession or injunction or damages. (Vide Delhi Motor Co. v. G.A Basrurkab (11) AIR 1968 SC 794 and Probodkumardas v. Dantmara Tea Co. Ltd. (12), AIR 1940 PC 1. It merely operates an estoppel against transferor to assert his title. In Technicians Studio v. Lila (13) (1977) 4 SCC 324 : AIR 1977 SC 2425 there was a decree for ejectment. Thereafter a compromise was entered into between the parties agreeing to grant lease for 16 years on paying Rs. 1000/- per month and it was paid but the compromise deed was not registered. The decree was not set aside. After the expiry of 16 years, suit was filed to declare that the defendants a trespasser and for possession etc. The defendant resisted it contending that pursuant to the compromise a tenancy of month to month came into existence and the doctrine of part performance under Sec. 53-A of the Transfer of Property Act was available to him. It was negatived by all the Courts and decree of ejectment was passed. While considering that question it was held that a person who has let into possession on the strength of a void lease (as the lease was unregistered) does not acquire any interest in the property but gets under Sec. 53-A only a right to defend possession. Since there is no contract came into existence under the compromise (after the expiry of period the right was not accepted) the defence of right to possession under Sec. 53-A in part performance of the contract was negatived. In Pir Bux's case (9) (supra) it was held that since the defendant did not seek for specific performance of the agreement within limitation and obtained title, after the expiry of limitation the defence of part performance will not avail him to any effect. Same is the view in Ariff's case (10) (supra). In Akram Mea v. M.C Secunderabad (14) AIR 1957 AP 859 Subbarao, C.J (as he then was) held that to avail of Sec. 53-A the contract contemplated under Sec. 35-A is a valid contract. But if the contract is invalid Sec. 53-A obviously cannot validate the invalidity. The equitable defence was held not available to the stall licancees due to non-compliance with the provisions of the contronment Act. Same is the view in Ram Ghulam v. Kailash Narain (15) AIR 1931 All 59 DB Pocham's case (6) (supra) was already considered. Thus the doctrine of part performance applies only when a valid contract is in existence and sought to be enforced or in disregard thereof and dispite the transferee is ready and willing to perform his part of the contract the transferror is seeking to take possession. But this doctrine does not bind the statutory authorities under the Act since they are not relying on the contract nor it a basis under proviso to Sec. 38-E(2) the Tahsildar is enjoined to eject a person other than a protected tenant or holder of the Certificate under Sec. 38-E(1) and shall restore possession of the said land (in respect of which ownership was conferred) to the protected tenant or holder of the certificate under Sec. 38-E(1) after giving notice to the occupier. The question, therefore is whether the petitioners can rely upon the doctrine of part performance. It is already, held that the agreements and the sale deed are null and void sham and nominal and the petitioners acquire no right, title, or interest nor right to occupancy in the lands. As held earlier the existence of a valid contract is a condition precedent any when they are denuded of any right under the contract the very basis is lost and the reliance on the doctrine of part performance pursuant to the void contract is a futility nor is it binding on the statutory authority i.e Tahasildar. The cases viz. Lachmamma v. Kuppala Chinna Venkat Reddy (4) (supra) and the one relied on by the petitioners in Syed Tajuddin v. Syed Ahmed (2) (supra) are cases arose inter se between the parties. The former is a civil action for declaration of title and for possession and the latter is the one in which the jurisdiction under Section, 98 was invoked by a party to the contract to have the transferee evicted from possession under Sec. 98 of the Act. Lachmamma's case (4) was one in which there was still time to get the sanction. In fact in Pocham's case (6) (supra) while noting the observations of the learned single Judge (Madhava Reddy, J. as he then was) that “there is yet time for obtaining such a declaration” and the consideration by the Division Bench in LPA. 139/70 in paragraph 29 it was held;

“This view (the doctrine of part performance is available) was probably expressed in view of the fact that there was still time for validation of the contract of sale and the delivery of possession. We venture to make this inference because the decision of the Division Bench was rendered on 18th February, 1972 and the time for validation of the contract of sale under Sec. 50-B was in force till 31st of March, 1972. Though the Division Bench did not specifically mention this, this inference is possible by the view expressed by the Division Bench that Sec. 50-B was not retrospective in effect but was only prospective, and that until and unless the invalid transfers are validated, they (the invalid transfers) continue to be invalid. Therefore we do not consider that this Bench in Letters Patent Appealt 139/70 (ILR 1974 AP 119) is in any way contrary to the view we have expressed”.

11. I respectfully agree with the above view. In view of the discussion I have made herein before, the necessary conclusion is that so long as the contract is valid and possession was continued to be held pursuant thereto, the doctrine of part performance and retention of possession in exercise thereof is still available, but once the very existence of the contract or its legality is knocked to the bottom, the question of readiness and willingness to perform his part of the contract by the transferee does not arise and therefor the question of his resisting possession will be of no avail. If considered from this angle, the later part of the ratio in Lachmamma's case (4) (supra) also is a valid law. In my humble view it is to be so understood. If it is understood other way about its authority appears to be doubtful in view of the ratio in Technician's Studio (13), Ranchhoddas (8), Arif (10) Pir Bux (9) and Akram Mea (14) cases. In Syed Tajuddin's case (2) (supra) it is not clear whether any time to get validation under Sec. 53-B is available. Even otherwise, that case is clearly distinguishable because it is a case inter-se between the transferor and transferee and the ratio therein does not apply to the case arising under Sec. 38-E of the Act, since the statute enjoins the Tahsildar to take action suomotu also and implement the issurance of certificate under Sec. 38-E(1) to make the legislative animation a fruition. After the decision of the Division Bench in C. Narasaiah's case (1) the Legislature stepped in, amended Section 38-E and introduced proviso to sub-section (2) of Sec. 38-E, through Amendment Act 2 of 1979, which reads thus:

“Provided that where the land, the ownership of which has been transferred to the protected tenant under sub-section (1), is in the occupation of a person other than the protected tenant or holder of the certificate issued under this sub-section, it shall be lawful for the Tahsildar to restore the possession of the said land to the protected tenant or holder of the certificate, after giving notice of eviction to the occupant thereof, in the prescribed manner”.

and prescribed no limitation. The Legislature thereby did not agree with the law laid down by this Court that sec. 27 of the Limitation Act applies to the proceedings under the Act. The doctrine of implied nullification of the Judicial decision was dealt with at some length by this Court in K. Subbarao v. District Collector (16) 1984 (3) A.P.L.J 249 and it is needless to reiterated and the reasoning therein expressed by mo holds good for this case. Even the explanation to sub-section (1) also amplifies existence and efficacy of such a power. Therefore, the Tahsildar is invested with express power to restore the possession of the land to the protected tenant or holder of the certificate issued under Sec. 38-E after ejecting “a person” in possession after giving notice of eviction to the occupant thereof in the prescribed manner. Therefore even if there is any manouever or manipulation to keep the respondents 1 and 2 out of possession, the wide power under proviso to Sec. 38-E(2) is still available to invoke and restore possession of the lands to them. Therefore, the decision in Syed Tajuddin's case is inapplicable to the facts of this case. On the other hand, the ratio in Pocham's case (6) (supra) directly applies to the facts of this case. Therein, after the Regulation of 1959 was applied to the Telangana region i.e December 1, 1963, and the sale was found to be void, the competent authority initiated action for ejectment and while holding that the doctrine of part performance has no application, the orders of eviction passed by the competent authorities were upheld. It must therefore be held that the doctrine of part performance is not available to the petitioners. Considered from any angle, the second contention too lacks substance. No other contention has been raised. The inevitable conclusion is that the certificate under Sec. 38-E(1) conferring ownership rights on respondents 1 and 2 is perfectly legal and valid and it is not vitiated by any error of jurisdiction and needs no interference.

12. The C.R.P is accordingly dismissed.