P JAGADISHWARAIAH Vs. STATE OF A P

JUDGEMENT

(1.) The only point that arises for consideration in this revision by the declarant against the order of the Land Reforms Appellate Tribunal, dated 13-4-1977 in L.R.A.No. 249/1976 is whether the lower Tribunals were right in holding that the claim of the protected tenants under Sec. 38-E of the Hyderabad Tenancy and Agricultural Lands Act need not be enquired into before determining the holding of the declarant under Sec. 5 of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973.

(2.) It is the case of the declarant-petitioner herein that the lands covered by S. Nos. 15 ,16, 28, 24, 41, 72 and 76 of Madharam Village, Hyderabad East, were in the possession of the protected tenants and that he had sold the same to them. It is his further case that they had also acquired right to the transfer of ownersip in their favour under Sec. 38-E of the Hyderabad Tenancy and Agricultural Lands Act. The Land Reforms Tribunal in its order dated 15-9-1976 while rejecting the declarant's plea that these lands were sold to the protected tenants, refused to go into the question whether the protected tenants had acquired rights under Sec. 38-E of the Tenancy Act on the ground that no certificate was granted to them under Sec. 38-E of the Act. On appeal, the Appellate Tribunal observed that the Lower Tribunal has examined this issue as required under Sec, 13 of the Ceiling Act and has held that the protected tenants are not eligible and are not entitled to pattas underSec. 38-E of the Tenancy Act In respect of the said survey numbers. Therefore, when it is clearly held that there is no eligibility for the protected tenants it cannot now be argued before it that the protected tenants are entitled to pattas under Sec. 38-E of the Tenancy Act and that the area of the said survey numbers should be deleted from the petitioner's holding.

(3.) The Appellate Tribunal's finding is erroneous both on the question of fact and law. The Appellate Tribunal erred in assuming that the Land Reforms Tribunal had decidedthe claim of the objectors and that of the declarant that the protected tenants had acquired rights of ownership under Sec. 38-E of the Tenancy Act. In fact what all the original Tribunal held was that the sale was not Proved. On the question of transfer of ownership under Sec. 38-E of the Act it held that the objection of the protected tenants could not be considered at that stage. The view of the Land Reforms Tribunal is wholly unsustainable in law. When it is claimed that certain protected tenants in possession of the declarant's holding have acquired ownership under Section 38-E of the Tenancy Act, it is incumbent under Sec. 13 of the Ceiling Act to determine in the first instance "whether such land or part thereof stands transfered to the protected tenant under S. 38-E of the Act and if so the extent of the land so transferred". After determining t his, it is further incumbent upon the Tribunal "to exclude such land from the holding of such owner and including it in the holding of the tenant as if the tenant was the owner of such land for the purposes of the ceiling Act". It cannot refuse to enquire into that claim, merely because no certificate under Sec. 38- E was already granted. When a claim is made in proceedings u/s. 5 of the Ceiling Act that a person in possession is a protected tenant and that, that land stood transferred to him under Sec. 38-E., it is obligatory for the Land Reforms Tribunal to make an enquiry u/s. 13 of the Ceiling Act and to determine (1) if any land is in the possession of the protected tenant; (2) if so, the extent of the land which stood transferred to the protected tenant under Sec. 38-E of the Tenancy Act; (3) to exclude such extent from the holding of the land holder; and (4) to include it in the holding of the protected tenant as if he was the owner. It is not the case of the parties that earlier there was any determination of the rights of the protected tenants under Sec, 38-E with respect to the lands covered by the survey numbers referred to above. That being so, the assumption of the Appellate Tribunal that the original tribunal had determined such right is wholly baseless and unsustainable.