USHANNA Vs. SAMBU GOUD

JUDGEMENT

(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 guntas each to each respondent in Survey No. 4 of Burnoor village of Adilabad Taluk. 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 ownership 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.

(2.) 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.) 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, 1965 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(1) 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 : 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, 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 transfer 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: