BODDAM NARSIMHA A

v.
HASAN ALI KHAN (DEAD) BY L.R. & ORS.

JANUARY 25, 2007

(DR. ARIJIT PASAYAT AND S.H.KAPADIA, JJ) B

Tenancy and Land Laws:

A.P. (Telangana Area) Tenancy & Agricultural Lands Act, 1950:

c
Section 37-A-Protected tenancy-A partition suit was filed in respect
of the suit land by one of the sons of the deceased landowner-One of the
items of Schedule 'B' land was in possession of the tenants-One such
tenant, 'B' was the cultivating tenant in respect of the suit land-He was
inducted in the suit land under a kaulanama, which was executed by one
of the sons of the deceased landowner-Initially it was for one year-It was
D
renewed each year-It stated that on the expiry of the stipulated period
the tenant would have no right over the land in possession-It further
stated that 'B' would be the sole cultivator and that without the permission
of the landlord, he would not include any other cultivator -The son sold
his share to 'B' through a registered sale deed-The sale deed in favour E
of 'B' stood executed after the vendor obtained the permission under Ss.
47 and 48 of the Hyderabad Tenancy and Agricultural Land Act, 1950-
Accordingly, 'B' became a pattedar in respect of the suit land-In the
revenue records, the name of 'B' was shown as a pattedar-During his
lifetime, 'B' did not claim to be a protected tenant under S. 37-A-Even his
F
L.Rs did not claim that 'B' was a protected tenant in respect of the said
land-For the first time, the nephew of 'B' sought a declaration that 'B' was
a protected tenant under Section 37-A of the Act and accordingly claimed
ownership certificate under Section 38-E of the Act after a lapse of more
than 40 years-No explanation was given in the application by the
nephew for not invoking Section 37-A of the Act for almost 40 years-The G
tribunal reported that there was no protected tenants in respect of the suit
land and that the name of 'B' was never recorded as a protected tenant
in respect of the suit land-It was further reported that 'B' was the pattedar,
that he was cultivating the land .as pattedar and that he was cultivating
as owner under the sale deed-The Tribunal dismissed the application- H
1223
 ·y

1224 SUPREME COURT REPORTS [2007] I S.CR.

A The High Court affirmed the decision of the Tribunal-Held: S. 38-E has
been enacted for those protected tenants who are declared to be protected
tenants and included in the Register prepared for that purpose-'B' had
become a pattedar (owner) under the sale deed-The protected tenancy
has to be enforced on the notified date-Therefore, in any event, the
assumed protected tenancy did not continue up to the notified date-The
B nephew of 'B' has not applied on the demise of 'B' for his name to be
brought on record as L.R. of 'B' or on the basis of joint cultivation by his
father and uncle-Therefore, the nephew was not entitled to the Ownership
Certificate under S. 38-E-Hyderabad Tenancy and Agricultural Land Act,
1950, Ss. 47 and 48-Andhra Pradesh Rights in Land and Pattedar Pass
c Book Act, 1971, S. 4-Land Grabbing (Prohibition) Act, 1982.

Words & Phrases:

"Protected tenant"-Meaning of-Jn the context of Section 37-A of

D the A.P (Telangana Area) Tenancy & Agricultural Lands Act, 1950.

A partition suit was filed in respect of the suit land by one of the sons
of the deceased landowner. In the plaint it was stated that one of the items
of Schedule 'B' land was in possession of the tenants. One such tenant, 'B',
the paternal uncle of the appellant, was the cultivating tenant in respect of
E the suit land. He was inducted in the suit land under a kaulanama, which
was executed by one of the sons of the deceased landowner. Initially it was
for one year. It was renewed each year. It stated that on the expiry of the
1
stipulated period the tenant would have no right over the 1and in possession.
It further stated that 'B' would be the sole cultivator and that without the
F permission of the landlord, he would not include any other cultivator. The
son sold his share to 'B' through a registered sale deed. The sale deed in
favour of 'B' stood executed after the vendor obtained the permission under
Sections 47 and 48 of the Hyderabad Tenancy and Agricultural Land Act,
1950. Accordingly, 'B' became a pattedar in respect of the suit land. In the
revenue records, the name of 'B' was shown as a pattedar. During his
G lifetime, 'B' did not claim to be a protected tenant under Section 37-A of
the A.P. (Telangana Area) Tenancy & Agricultural Lands Act, 1950. Even
his L.Rs did not claim that 'B' was a protected tenant in respect of the said
land. For the first time, the appellant sought a declaration that 'B' wa~ a .(

protected tenant under Section 37-A of the Act and accordingly claimed
H ownership certificate under Section 38-E of the Act after a lapse of more
 BODDAM NARSIMHA v. HASAN ALI KHAN 1225

than 40 years. No explanation was given in the application by the appellant A

for not invoking Section 37-A of the Act for almost 40 years.

On receipt of the said application, the matter was referred by the

Tribunal to the Manda! Revenue Officer, who reported that there was no
protected tenants in respect of the suit lands and that the name of 'B' was
never recorded as a protected tenant in respect of the said suit lands. It was
B
further reported that 'B' was the pattedar, that he was cultivating the lands
as pattedar and that he was cultivating as owner under the sale deed. The
Tribunal dismissed the application. The High Court affirmed the decision
of the Tribunal. Hence the appeal.
c
On behalf of the appellant, it was contended that the statutory right
of protected tenancy was not lost on account of delay or !aches and that such
a right was not obliterated for want of application particularly when the law
did not contemplate any such application by the person claiming to be a
protected tenant. D

Dismissing the appeal, the Court

HELD: 1.1. The appellant's paternal uncle 'B' was a koul who had
taken an annual lease from the son of the deceased landowner. He was a
tenant-at-will. This was during the pendency of the partition suit. He E
became a pattedar vide a sale deed. The kaul itself indicates, that 'B' was
to cultivate in his individual capacity; that at the end of the year, 'B' had
to return the lands to the owner; that 'B' was not given the right to include
any other cultivator. Therefore, there is no merit in the contention of the
appellant that 'B' was jointly cultivating the suit lands with his two F
brothers. Further, between tenancy and the conveyance, there was a time
gap. The son of the deceased landowner was a pattedar. His rights were
purchased by 'B' vide a sale deed before the Notification came to be issued.
'B' was not the tenant. He was a pattedar. [Para 13)

1.2. Moreover, appellant is not the L.R. of "B'. 'B' was his paternal ,G
uncle. At no point of time, even the L.Rs of 'B' had claimed that 'B' was
a protected tenant. It is evident from Section 38-E of the A.P. (Telangana
Area) Tenancy & Agricultural Lands Act, 1950 that the said Section has
been enacted for those protected tenants who are declared to be protected
tenants and included in the Register prepared for that purpose. A person H
A
1226 SUPREME COURT REPORTS [2007] l S.C.R.

becomes a protected tenant when he is a holder on the dates or for the

-
periods mentioned in Sections 35, 37 and 37-A. Once a person becomes a
protected tenant, he is entitled to an Ownership Certificate under section
. 38-E. As long as his right as protected tenant has not been determined by
the date of Notification in a manner known to the Act, he holds the land
as a protected tenant, whether physically in possession or not. For the
B vesting of ownership of land held by a protected tenant under section 38-
E, it is not necessary that the protected tenant should be in physical
possession on the notified date. It is sufficient if he continues to hold
the status of a protected tenant on the notified date, even if he is not in
physical possession. The Act does not merely regulate the relationship of
c landlord and tenant but deals with the alienation of agricultural land and
includes transfer of the land holders' interest to the protected tenants.
Therefore, the grant of pattedari (ownership rights) also finds place in the
Act. (Para 13)

Bahadur Singh v. Shangara Singh, (1995) l SCC 232 and Sada v. The
D
Tahsildar, AIR (1988) AP 77, referred to.

2. On the facts and circumstances of the present case, 'B' had become
a pattedar (owner) unde'r the sale deed. His name was shown as a pattedar
even prior to the notified date. The benefit of Section 38-E is given to
E persons who hold the lands as protected tenants and who continue to hold
the lands as protected tenants on the notified date. The protected tenancy
has to be enforced on the notified date. Under Section 38-E, ownership
rights are conferred only upon persons who c~ntinue io be protected
tenants as on the notified date. They form a special class. liJ. the present
p case, even if one were to proceed on the basis that 'B' was a protected (
tenant, still 'B' became a pattedar under the sale deed, and therefore, in
any event, the assumed protected tena_ncy did not continue up to the notified
date. Therefore, the appellant was not entitled tci the Ownership Certificate
under Section 38-E of the Act. Section 38-E has no application to the facts
of the present case. (Para 14)
G
3. Secondly, 'B' was a lessee from the landowner's son. The kaul
itself indicates that 'B' was obliged to cultivate the lands in his individual
capacity. The appellant had not been able to show any entry from the
revenue records indicating joint cultivation of the land by 'B'. This aspect
H is important since the appellant is not the L.R. of 'B'. At no point of time,
 BODD AM NARSIMHA v. HASAN ALI KHAN [KAPADIA, J.] 1227

'B' or his L.Rs or even the appellant has approached the authorities to A
record joint cultivation in the mutation entries. Under Section 48-A of the
Act, restrictions are placed on alienation by a protected tenant. A protected
tenant on the notified date cannot alienate the right of ownership under
Section 38-E for eight years from the date of acquisition of such rights.
Further, under Section 40 of the Act, all rights of a protected tenant are
heritable by his lineal descendants by blood or adoption. 'B' died during the
B
period when there was restriction on alienation of ownership rights
acquired by a protected tenant under Section 38-E. The appellant has not
applied on the demise of 'B' for his name to be brought on record as L.R.
of 'B' or on the basis of joint cultivation by his father and uncle. Further
under Section 4 of the Andhra Pradesh Rights in Land and Pattadar Pass c
Book Act, 1971, acquisition of rights has got to be intimated. Any person
who acquires any right by succession, survivorship, inheritance, partition,
patta or otherwise has to intimate in writing about his acquisition of such
right. There is nothing to show that 'B' and his two brothers were jointly
cultivating the lands. In fact, the kaul did not allow 'B' to cultivate the land D
with any other person without the prior permission of the landlord. In the
circumstances, there is no evidence to show that the land was jointly
cultivated by 'B' along with his two brothers. Therefore, since the appellant
is not the L.R. of 'B', he is not entitled to an Ownership Certificate or a
declaration of protected tenancy under the Act (Para 16)
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3429 of2002.

From the Judgment and Final Order dated 16.4.2001 of the High Court
of Judicature, Andhra Pradesh at Hyderabad in C.R.P. No. 2229/2000.
F
F.S. Nariman, M.N. Rao, Dr. RajeevDhawan, K.K. Venugopal, Dushyant
A. Dave, Shyam Divan, Sr. Advs. Subhash Sharma, Hari Sreedhar, Lupanlu
Gangmei, Pradeep Kumar Kar, Krishna Kumar, Rekha Pandey, M.A. Mukheem,
P. Sriniwash Reddy, Manjeet Kirpal, T.N. Rao, Ch. Leela Sarveswar, D. Rama
Krishna Reddy, D. Bharathi Reddy, Krishnan Venugopal, S. Udaya Kumar
Sagar, Bina Madhavan, A. Venayagam (for Mis. Lawyer's Knit & Co.) for G
the appearing parties.

.\ The Judgment of the Court was delivered by

KAPADIA, J. : 1. Nawaz Jung Bahadur was a pattedar of the lands H

 1228 SUPREME COURT REPORTS (2007] I S.C.R.

A inter alia in Survey Nos. 63, 68, 69 and 70 admeasuring 69 acres IO guntas
in village Madhapur of Serlingampally Manda!, Ranga Reddy in Andhra
·-
Pradesh. On the demise ofNawaz Jung Bahadur, one of his sons Mohd. Ali'
Khan filed a suit for partition of the properties of late Nawaz Jung Bahadur.
This was in 1935. The scheduled property was Item 6 of Schedule Bin Suit
No. 42/62 filed in the City Civil Court, Hyderabad. In the plaint it was stated
B. that Item 6 was in possession of the tenants. One such tenant, Boddam Bala
Mallaiah (hereinafter referred to as "Bala") was the cultivating tenant in
respect of Survey Nos. 63, 68, 69 and 70 of village Madhapur admeasuring
69 acres 10 guntas as indicated by Khasra Pahani for the year 1954-55. Bala
was a lessee for three years. He was inducted in the aforesaid lands under
c a kaulanama dated l.3.1953. This kaulanama was executed by one Hamid Ali
Khan son of Md. Nawaz Jung. Initially it was for one year. It was renewed
each year. It stated that on expiry of the stipulated period the tenant will
have no right over the land in possession. It further stated that Bala will be
sole cultivator and that without the permission of the landlord, Bala will not
include any other cultivator. Hamid Ali Khan sold his share to Bala on
D
23. l l.1959 through a registered sale deed. The partition suit referred to
above filed in 1935 (renumbered in 1962) stood decided on 24.11.1970. This
sale deed dated 23.11.1959 in favour of Bala stood executed after the vendor
Hamid Ali Khan obtained permission under Sections 47 and 48 of the
Hyderabad Tenancy and Agricultural Land Act, 1950. The permission was
E obtained from Deputy Collector on 13 .11.1959. Accordingly, Bala became a
pattedar in place of Hamid Ali Khan in respect of the suit land. In the
revenue records for the year 1972-73, the name of Bala was shown as
pattedar. The alienation in favour of Bala was during the pendency of the
suit for partition of the ancestral properties belonging to Nawaz Jung
F Bahadur. Bala died in 1975. He was the paternal uncle of the appellant herein.

2. Pursuant to the preliminary decree, an Advocate Commissioner was

appointed in the final decree proceedings vide I. A. No. 854/84 in suit No ..
42/62. On 28.11.1993 the said Commissioner came to the suit site to measure
the lands. At that stage the LRs. of Bala and his 2 brothers instituted a suit
G for permanent injunction against the respondents herein being suit No. 294/
93 which was dismissed on 8.6.1998. The important point to be noted is that
the plaintiffs in the said suit did not allege Bala to be a protected tenant.
Bala had two brothers, namely, Agaiah (father of the appellant) and Komariah.

H 3. Subsequently, the vendees (K. Sambasiva Rao and Ors.) who

.. 'Y

BODDAM NARSIMHA v. HASAN ALI KHAN [KAPADIA, J.] 1229

claimed title through the LRs. of Bala and his two bothers instituted another A
.... suit for permanent injunction against the respondents herein. This suit was
dismissed on 8.6.1998.

4. The LRs. of Bala and his two brothers filed one more application
before the Special Court under the Land Grabbing (Prohibition) Act, 1982
which was dismissed by the Special Court vide Order dated 13.5.1997.
B

5. Having failed in the above proceedings, an application was moved

on 16.12.1998 before the Tribunal (R.D.O.), Ranga Reddy Distt. seeking a
declaration of protected tenancy under Section 37-A of the Tenancy Act.
This application was moved by the present appellant. In the said application, c
it was alleged for the first time that late Bala was a protected tenant. By the
said application, the appellant also asked for an Ownership Certificate under
Section 38-E of the A. P. (Telangana Area) Tenancy & Agricultural Lands
Act, 1950 ("the Act") as amended from time to time. In other words, the
appellant herein invoked the said Act for the first time on 16.12.1998 though
D
Section 37-A stood incorporated in the tenancy law by way of an
(Amendment) Act, 1955, which came into force on 12.3.1956.
'
6. Bala was the paternal uncle of the appellant herein. He died in 1975.
He, during his lifetime, did not claim to be a protected tenant. In fact, as
stated above, he became a pattedar prior to 1.1.1973. Even his LRs. did not E
claim that Bala was a protected tenant in respect of the said land, therefore,
for the first time, the nephew of Bala, the appellant herein, sought a
declaration that Bala was a protected tenant under Section 37-A and
accordingly claimed an Ownership Certificate under Section 38-E of the Act
after a lapse of more than 40 years. No explanation was given in the
F
) application by the appellant for not invoking section 37-A for almost 40
years. The Tenancy Act came into force on 10.6.1950. At this point it may
be stated that the appellant herein is not the L.R. of Bala. The appellant is
the nephew of Bala, however, appellant claims that Bala was cultivating the
above lands with his two brothers, namely, Agaiah (father of the appellant
herein) and Komaraiah. G

7. On receipt of the said application dated 16.12.1998, the matter was

. ) referred by the Tribunal to the Manda! Revenue Officer ("M.R.O."), who
reported that there was no protecte~ tenants in respect of the suit lands and
that Bala's name was never recorded as protected tenant in respect of the H
 ,..
1230 SUPREME COURT REPORTS (2007) 1 S.CR.
-
A said lands. It was further reported that Bala was the pattedar, that he was
cultivating the lands as pattedar and that he was cultivating as Owner under ..
the above sale-deed dated 23.11.1959.

8. Before the Tribunal, two contentions were advanced, namely, that

Bala was a deemed tenant under section 5 of the Act. It was also contended
B that, in any event, Bala was the protected tenant under Section 37-A of the
Act and, therefore, he was entitled to Ownership Certificate under Section
,_. '
38-E of the Act. Both these contentions were rejected by the Tribunal vide
order dated 24.8.1999. It was held that Section 5 contemplates making of an
application by the landlord upon which the Tehsildar had to decide whether
c there is a deemed tenant on the property. The Tribunal held on the facts of
the present case that neither the appellant protested against omission of
Bala's name from the revenue records as a deemed tenant nor has the
landlord filed an application before the Tehsildar to declare Bala not be a
tenant. No application was ever made to rectify the alleged mistake/ omission.
In the circumstances, the Tribunal held that Section 5 of the Act has no
D
application. On the second point regarding applicability of Section 38-E, the
Tribunal held that in 1975 an enquiry was conducted pursuant to the
Notification issued by the Government enforcing the provisions of section .·
38-E. In that enquiry, it was found that there were no protected tenants in
Madhapur village. For the aforestated reasons, the Tribunal dismissed the
E application made by the appellant.

9. Aggrieved by order of the Tribunal dated 24.8.1999, the appellant

herein preferred an appeal under Section 90 of the Act. The appeal was
dismissed by the Joint Collector vide order dated 13.3.2000. Thereupon, a
F Civil Revision Petition was filed by the appellant herein under Section 91 of
the Act which was dismissed by the High Court vide judgment dated (

16.4.2001 which is now under challenge before this Court.

10. Mr. F.S. Nariman, learned senior counsel, appearing on behalf of the
appellant submitted that a statutory right of protected tenancy is not lost
G on account of delay or !aches. It was submitted that such a right is not
obliterated for want of application, particularly when the law . does not
contemplate any such application by the person claiming to be a protected
tenant and also in the absence of any injury or prejudice to the land holders. (
-
In this connection, it was urged that under Section 37-A of the Act, a tenant
H in possession on 12.3.1956 becomes a protected tenant; that Section 37-A
 BODDAMNARSIMHA v. HASAN ALI KHAN [KAPADIA, J.] 1231

directs the authorities to record him as a protected tenant and that Section A
37-A does not prescribe any application to be made and, therefore, in such
circumstances, it cannot be said that a statutory right is lost be.cause the
concerned person did not make any application for recognition of his status
as a protected tenant. In other words, it was urged that if a tenant is in
possession on 12.3 .1956, then the statute confers upon him the status of a
protected tenant and such a right continues even if the person entitl~d
B
thereto fails to move the authorities for grant of a declaration. In the
circumstances, it is urged that the appellant was entitled to a certificate of
ownership under Section 38-E of the Act, which stood introduced w.e.f.
1.1.1973.
c
11. It was next urged that delay or omission, if any, to compile list of
protected tenants under Sections 37-A and 38-E of the Act was on account
of the failure on the part of the concerned authorities under the Act for
which the tenant cannot be denied as status of protected tenancy by
invoking the theory of !aches and delay. Learned counsel urged that the D
statutory rights of the protected tenant conferred under Section 37-A upon
cultivating tenants in possession on 12.3.1956 are automatic and not
dependant on applications to be made. He acquires rights of ownership
under Section 38-E of the Act automatically. That the respondents wete
pattedar of lands admeasuring 2000 acres which was more than the ceiling
prescribed and, therefore, Bala had acquired rights of protected tenancy E
under section 37-A of the Act because he was the cultivating tenant in
possession on 12.3.1956. According to Section 38-E, the ownership of tl)e
land stood automatically transferred to protected tenants if the conditio~s
under Section 38(7) stood satisfied. According to the appellant, under
Section 38-E, the authorities were duty bound to prepare a provisional list F
of protected tenants to whom ownership stood transferred. A general notice
was required to be published. Individual notices were required to be giv~n
to the protected tenants of the land holders. A public enquiry was required
to be made. Only then a final list had to be published. Learned counsel
submitted that no such notice was ever given to the appellant though the
appellant's family continued to remain in possession. The appellant have G
challenged the finding of the Tribunal that there was an enquiry and a nil
provisional list was prepared in 1975 under Section 38~E against which there
was no protest from the appellant or from the LRs. of Bala. As no such
notice was ever issued, the application made by the appellant in 1998 un~er
section 38-E should have been treated as an objection to the provisional list H
 ,.
..

1232 SUPREME COURT REPORTS [2007] I S.C.R

\<..

A and, therefore, the Tribunal had wrongly rejected the appellant's application
''
for Ownership Certificate. Learned counsel urged that the name of Bala was
recorded in the Khasra Pahani for the year 1954-55 as a tenant and his name
was shown as a pattedar subsequently and, therefore, it was the statutory
duty of the Tribunal to conduct an enquiry suo moto which they fail to do.
It is the case of the appellant that they are in possession of the lands right
B throughout and they moved under the Act only when their possession
+"
sought to be disturbed. Learned counsel submitted that it was the duty of i-

the concerned authorities to prepare a list of protected tenants. They fail to

prepare the list, therefore, according to the learned counsel, the application

c
of the appellant under Section 38-E ought not to have been rejected on the
ground of delay and !aches, particularly when under the Act there is no ..,,.
limitation prescribed. The appellant had approached the Tribunal when the
Advocate Commissioner appointed by the civil court, in the partition suit
filed by the owners (respondents herein) sought partition of the properties
belonging to late Nawaz Jung Bahadur, tried to dispossess the appellant.
Therefore, the appellant's right to seek a declaration/ Ownership Certificate
D
arose only when the Advocate Commissioner tried to dispossess the
appellant. Mere !aches would not disentitle the tenant to the relief sought
..,
for by him under the Act. In this connection, reliance was placed on the
judgment of the Full Bench of the Andhra Pradesh High Court in the case
of Sada v. The Tahsildar, Utnoor reported in AIR 1988 AP 77. It was
E submitted that the accrued right in favour of the tenant by operation of law
does not get defeated merely by omission to have their names recorded in
the revenue records. In this connection, reliance was placed on the judgment
of this Court in the case of Bahadur Singh and Ors. v. Shangara Singh and
Ors. reported in [1995] 1 SCC 232. It was next contended that in view of the
F Memo dated I I .9.2000 issued by the R.D.O. stating that the particulars of
tenants who became protected tenants under Section 37-A was not available
(
.
though the register contains particulars of 36 other villagers. The High Court
should have directed the Tribunal to hold an enquiry and compile a register
on the basis of the village record since no person can be affected on
account of omissions on the part of the Tribunal in complying with the
G statutory mandatory provisions of the Act.

12. For the following reasons, we do not find any merit in the above ~
contentions.

H 13. Bala was a koul who had taken an annual lease from Hamid Ali
 BODDAM NARSIMHA v. HASAN ALI KHAN [KAPADIA, J.] 1233

... Khan. He was a tenant-at-will. This was during the pendency of the partition A
.· suit. He became a pattedar vide conveyance dated 23 .1 I. I 959. The kaul itself
indicates, that Bala was to cultivate in his individual capacity; that at the
end of the year, Bala had to return the lands to the owner; that Bala was
not given the right to include any other cultivator. Therefore, there is no
merit in the contention of the appellant that Bala was jointly cultivating the
suit lands with his two brothers Agaiah (father of the appellant) and
B
Komaraiah. Further, between tenancy and the conveyance, there was a time
gap. Hamid Ali Khan was a pattedar. His rights were purchased by Bala vide
conveyance dated 23 .11.1959, therefore, on 1.1.1973, when the Notification
came to be issued, Bala was not the tenant. He was a pattedar. Moreover,
appellant herein is not the L.R. of Bala. Bala was his paternal uncle. At no C
point of time, even the LRs. of Bala had claimed that Bala was a protected
tenant. It is evident from section 38-E that the said section has been enacted

-
for those protected tenants who are declared to be protected tenants and
included in the Register prepared for that purpose. A person becomes a
protected tenant when he is a holder on the dates or for the periods
D
mentioned in Sections 35, 37 and 37-A. Once a person becomes a protected
tenant, he is entitled to an Ownership Certificate under Section 38-E. In the
case of Sada (supra) the Full Bench of the Andhra Pradesh High Court held
that a person "holds" the land as protected tenant if he is still a protected
tenant on the notified date i.e. 1.1.1973, though out of possession. As Jong;
as his right as protected tenant has not been determined by the date of E
Notification in a manner known to the Act, he holds the land as a protected
tenant, whether physically in possession or not. For the vesting of ownership
of land held by a protected tenant under Section 38-E, it is not necessary
that the protected tenant should be in physical possession on 1.1.1973. It

- is sufficient if he continues to hold the status of a protected tenant on the

notified date, even if he is not in physical possession. The Act does not
merely regulate the relationship of landlord and tenant but deals with the
F

alienation of agricultural land and includes transfer of the land holders

interest to the protected tenants. Therefore, the grant of pattedari (ownership
rights) also finds place in the Act.
G
14. On the facts and circumstances of the present case, Bala had
become a pattedar (owner) under the conveyance dated 23.11.1959. His
name was shown as a pattedar even prior to 1.1.1973. The benefit of Section
38-E is given to persons who hold the lands as protected tenants and who
continue to hold the lands as protected tenants on 1.1.1973. The protected H
 1234 SUPREME COURT REPORTS [2007] 1 S.C.R.

A tenancy has to be enforced on 1.1.1973. Under Section 38-E, ownership

rights are conferred only upon persons who continue to be protected ·.
tenants as on 1.1.1973. They form a special class. In the present case, as
stated above, Bala became a pattedar in 1959. In the case of Sada (supra)
it has been held that protected tenants are covered by Chapter IV of the Act.
They fall under a limited category. They are referred to in Sections 34, 37
B and 37-A. In the said judgment, it has been held that Section 37-A,
introduced by Act No. 3/56 deals with a separate class of persons deemed
to be protected tenants. This class of persons is different from the category
of protected tenants who fall under Sections 34 and 37 respectively. Section
37-A refers to persons who are holders of the land at the commencement
c of Amending Act of 1955 (12.3.1956). These persons were required to be
tenants on 12.3.1956 and that they should continue to be tenants till
1.1.1973. Only such category of persons are entitled to Ownership Certificate
under Section 38-E. In the present case, even for the sake of argument, if
we were to proceed on the basis that Bala was a protected tenant on
12.3.1956, still Bala became a pattedar vide conveyance dated 23.11.1959,
D
therefore, in any event, the assumed protected tenancy did not continue up
to 1.1.1973. In our opinion, therefore, in any view of the matter, the appellant
herein was not entitled to the Ownership Certificate under Section 38-E of
the Act. Section 38-E has no application to the facts of the present case.

E 15. We conclude on this point by quoting para 44 of the judgment of

Andhra Pradesh High Court in the case of Sada (supra).

"44. In our view, this contention is not correct. If a protected tenant

is already in physical possession on the date of notification there
F is no problem at all. If proceedings under S. 19, 32 or 44 are
pending, the date of vesting gets itself postponed. If the 'protected
tenancy' stood validly terminated by the date of notification under
S. 19, 32 or 44, in that case, no certificate at all can be issued. But,
as long as a person continued to be a 'protected tenant' either
under S. 34, 37 or 37-A, as per the Act and has not lost that status,
G whether he is in actual possession or not on the date of notification,
and is also to be 'deemed' to be in possession under the first part
of the Explanation subject to S. 32(7) and the proviso to S. 38-E(l),
the ownership stands transferred straightway to such protected
tenant by the very force ofS. 38- E(l). Further, S. 38-E(2) read with
H the A. P. (T.A.) Protected Tenants (Transfer of Ownership of
 BODDAM NARSIMHA v. HASAN ALI KHAN [KAP AD.IA, J.] 1235

Lands) Rules, 1973 contemplates a full-fledged inquiry after notice A

to the landholders or after hearing objections of any other interested
person (vide Rr. 4, 5). Once a certificate is issued, the same is, under
S .. 38E(2), 'conclusive evidence' of the ownership of the protected
tenant, and cannot be defeated by the result of any inquiry under
second part of the Explanation to S. 38-E. Another reason for this
view is that the inquiry under S. 38-E(2) read with the Rules of 1973
B
referred to above, is to be done by the Tribunal (the Revenue
Divisional Officer) and obviously his decision to grant the ownership
certificate will not and cannot be jeopardised by the result of any
inquiry by a subordinate official like the Tahslidar, who deals with
the granting of possession to a 'protected tenant." c
(emphasis supplied)

16. Secondly, as stated above, Bala was a lessee from Hamid Ali Khan.
The kaul itself indicates that Bala was obliged to cultivate the lands in his
D
individual capacity. However, it was urged on behalf of the appellant that
Bala jointly cultivated the lands with Agaiah (father of the appellant herein),
and Komaraiah. We gave opportunity to the appellant to produce any entry
from the revenue records, village records or mutation entry indicating joint
cultivation of the land by Bala and his two brothers. Appellant had not been
able to show any such entry. This aspect is important since the appellant E
is not the L.R. of Bala. N no point of time, Bala or his LRs. or even the
appellant has approached the authorities to record joint cultivation in the
mutation entries. Under Section 48-A of the Act, restrictions are placed on
alienation by a protected tenant. A protected tenant on 1.1.1973 cannot
alienate the right of ownership under Section 38-E for eight years from the F
date of acquisition of such rights. Further, under Section 40 of the Act, all
rights of a protected tenant are heritable by his lineal descendants by blood
or adoption. Bala died in 1975. Bala died during the period when there was
restriction on alienation of ownership rights acquired by a protected tenant
under Section 38-E. The present appellant has not applied on the demise of
Bala for his name to be brought on record as L.R. of Bala or on the basis G
of joint cultivation by his father, Agaiah and other uncle Komaraiah. Further
under Section 4 of the Andhra Pradesh Rights in Land and Pattadar Pass
Book Act, 197 l, acquisition of rights have got to be intimated. Any person
who acquires any right by succession, survivorship, inheritance, partition,
patta or otherwise has to intimate in writing about his acquisition of such H
 1236 SUPREME COURT REPORTS L2007] l S.C.R.

A right. There is nothing to show that Bala and his two brothers were jointly
cultivating the lands. In fact, the kaul did not allow Bala to cultivate the land
with any other person without the prior permission of the landlord. In the
circumstances, there is no evidence to show that the land was jointly
cultivated by Bala along with Agaiah and Komaraiah. Therefore, in any view
of the matter, since the present appellant is not the L.R. of Bala, he is not
B entitled to an Ownership Certificate or a declaration of protected tenancy
under the Act. In our view, having failed in the civil court and before the
special court under the Land Grabbing Act the present appellant falsely
claimed to be a protected tenant as on l .1.1973. The entire exercise was an
abuse of process of law. In the circumstances, the High Court was right in
c dismissing the petition on the ground of delay and !aches.

17. For the aforestated reasons, there is no merit in the civil appeal and
the same is dismissed with no order as. to costs.

v.s.s. Appeal dismissed.