NOORJEHAN BEGUM Vs. YELMAL SATYANNA

JUDGEMENT

(1.) These two revision petitions under section 91 of the Hyderabad Tenancy and Agricultural Lands Act arise out of two applications for possession, of agricultural lands. The facts in the two cases are similar and the points that arise for decision are also similar. Applications were filed by the petitioners before the Tahsildar, Hyderabad (West), under section 28 (2) of the Hyderabad Tenancy and Agricultural Lands Act praying for a decree against the tenants for recovery of arrears of rent. By an order dated 9th October, 1958, the Tahsildar fixed the rent at O.S. Rs. 200 per year and found that the amount which is due to the petitioner in C.R. P. No. 1835 of 1961, is O.S. Rs. 660 (I.G. Rs. 565-75 nP.). In the concluding paragraph of this order, the Tahsildar stated : "As the defendant is a defaulter he should pay I.G. Rs. 565-75 nP. to the plaintiff within a period of 90 days failing which his tenancy will be terminated."

(2.) This order was passed in the case where the tenant is one Shaik Ahmed. A similar order was passed in the other case also. There were appeals and cross-appeals before the Collector. One of the two tenants, Shaik Ahmed, argued before the Collector that he was not at all in possession of the suit lands and that the suit lands are cultivated by Baliah, Wali Mohammed, Lachmiah and Kumariah. The Collector did not finally decide this point, but observed that Shaik Ahmed merely wants to evade the responsibility of paying the rent in respect of the suit lands. In that view, the order of the Tahsildar was confirmed. The Collector also observed that there was no written agreement between the parties and that the rent determined by the Tahsildar in respect of the suit lands is proper. But it is agreed that the rent determined by the Tahsildar was not deposited by the tenants within 90 days from 9th October, 1958, the date of the order of the Tahsildar. It appears that on 18th March, 1961, the Tahsildar issued notices to the tenants drawing their attention to the fact that the time for depositing the rents had expired and that, as such, the tenancy in their favour was thereby terminated. The present applications, under section 08 of the Hyderabad Tenancy and Agricultural Lands Act, were filed by the petitioners before the Deputy Collector, Division West, Hyderabad, for possession of the lands. Counters were filed to these applications by the respondents raising various objections. The Deputy Collector, by his order dated 15th February, 1961, allowed the applications under section 98 of the Act and ordered that the respondents be evicted from the suit lands and their possession be handed over to the petitioners. In his order, the Deputy Collector observed that the respondents were the protected tenants, but that their tenancy had been terminated by the competent authority and that their possession over the suit lands became unauthorised and illegal and that the respondents are liable to be evicted. Against this order the respondents filed appeals before the Collector, Hyderabad, who, by his order dated 2nd September, 1961. set aside the orders of the Deputy Collector and directed the tenants to deposit all the rents due to the land-holders in the Tahsil Office in pursuance of the order of the Tahsildar, dated 9th October, 1958, failing which action might be taken by the land-holders for ejectment under sections 19, 28 and 32 of the Act. These revision petitions are filed by the landholders questioning the legality of the orders of the Collector.

(3.) It is strenuously contended by Mr. Jaleel Ahmed, the learned Counsel for the petitioners, that the previous orders of the Tahsildar and of the Collector terminating the tenancy had become final and that these orders were also followed up by the formal notices issued by the Tahsildar to the tenants to the effect that the tenancy was thereby terminated as the tenants failed to deposit the arrears decreed within the period of 90 days as required by section 28 (1) of the Act. It follows, therefore, according to the learned Counsel, that the respondents are unauthorisedly occupying the suit lands or wrongfully in possession of the same within the meaning of section 98 of the Act and that the Collector erred in setting aside the order for possession passed by the Deputy Collector. It has to be seen how far this contention is well founded. It cannot be disputed that the order of the Tahsildar directing the tenants to pay the arrears of rent within qo days from the date of the order was confirmed on appeal by the Collector and those orders have now become final. It is also clear that the Tahsildar issued notices to the tenants intimating that their tenancy had been terminated for the reason that they committed default in depositing the rents decreed within 90 days allowed. But still, it has to be seen whether the tenancy in favour of the respondents had been terminated in accordance with law under the provisions of the Act, when only it can be said that they are the persons in unauthorised or unlawful possession of the suit lands and that section 98 would apply. The proceedings initiated by the landholders before the Tahsildar initially, which resulted in the decrees for arrears of rent on 9th October, 1958, were under section 28 (2) of the Act, which provides that a landholder may apply to the Tahsildar for the recovery of arrears of rent for any period not exceeding three years and on such application being made, the Tahsildar may determine the arrears of rent and then pass a decree for the same directing the tenant to pay the arrears of rent. That is what has happened in the present case. The Tahsildar determined what the arrear of rent was and directed the tenants to pay the said arrears within go days from the date of the order and proceeded to add that, in aefault, the tenancies would be terminated. I am unable to see what power the Tahsildar had to pass an order of this kind. The applications before the Tahsildar were not for evicting the tenants on the ground that the landholders had terminated the tenancy under any of the provisions of the Act. The applications were filed merely for passing decrees for arrears of rent. Under section 28, clause (2) of the Act, the Tahsildar, in my view has no jurisdiction to pass any order directing the tenant to pay up the arrears within a particular time and also order that, in default, the tenancy would be terminated by him. But I am referred to section 28, clause (1) on which reliance is placed by the learned Counsel for the petitioners. Clause (1) of section 28 is as follows :- "28. (1) Where a tenancy of any land held by a tenant is terminated for non-payment of rent and the landholder files any proceeding to eject the tenant, the Tahsildar shall call upon the tenant to tender to the landholder the rent in arrears together with the cost of proceeding within ninety days from the date of the order, and if the tenant complies with such order, the Tahsildar shall in lieu of making an order of ejectment, pass an order directing that the tenancy has not been terminated, and thereupon the tenant shall hold the land as if the tenancy had not been terminated : Provided that nothing in this section shall apply to any tenant "whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent within the period specified in sub- clause (1) of clause (a) of sub-section (2) of section 19. "