MD GULAM HUSSAIN Vs. SK MAHBOOB ALI

JUDGEMENT

(1.) This revision petition is directed against the order of the Joint Collector, Khammam in C.M.A.5/92 passed on 11-6-1993 confirming the order of the Mandal Revenue Officer dated 23-09-1991 passed in proceedings No.B/1257/90.

(2.) The facts, brief, giving rise for this revision are as follows;

(3.) The respondents who are the sons of Himam Shahib residents of Chindragunda Village had submitted a petition under A.P. (TA.) Tenancy and Agricultural Act, 1950 (hereinafter called as 'the Act') before the Mandal Revenue Officer Chandragunda seeking restoration of the land in Survey No.440 measuring Ac.6.37 guntas situated in Chandragunda village contending that their father Himam Shahib was declared to be the full owner under Section 38-B of the Act, that their father cultivated the same and that after the demise of their father they cultivated the same for some time but the respondents therein (revision petitioners herein) tresspassed into the land. Therefore, they sought the restoration of the said land, as they are legal heirs of the full owner under Section 38-E. The notice of the said petition was served on the respondents (revision petitioners herein). After enquiry and on verification of the records the learned Mandal Revenue Officer held that Sri Himam Shahib was declared as owner under Section 38-E with respect to the said land and as such became pattedar in the year 1956-57 and the petitioners (respondents herein) who are the legal heirs of the said pattedar are entitled to possession of the said land and that the landlords cannot set up the plea of adverse possession against the protected tenant and the possession of the said landlord was ousted as soon as the said land has been declared under Section 38E of the Act in favour of the petitioner. Hence the Mandal Revenue Officer allowed the said petition. Aggrieved of that order, the appellants herein preferred C.M.A.5/92 on the file of the Joint Collector, Khammam. The learned Joint Collector after hearing the learned Counsel on both sides and on verification of the connected revenue records held that Sheik Himam Shahib, the father of the respondents herein, was the pattedar as per the Pahani records right from the year 1956-57 by virtue of being certificate holder under Section 38-E of the Act. The learned Joint Collector further observed that "as seen from the final list of tenancy which was issued by Addl. Deputy Collector on 14-03-1956 the name of Himam Shahib son of Kasim Shahib is shown against S.No.440 for an extent of Ac.6.37 guntas. Based on this final list of tenancy, Himam Shahib was also declared as Pattedar in revenue records and the name of the protected tenant i.e. (38-E certificate holder) Sri Himam Shahib, is continuing in the revenue records as pattedar". The learned Joint Collector, further, relying on the Judgment in W.P. No. 10820/87 reported in 1987 APLJ Page 347, held that the appellants cannot agitate about the validity of the certificate issued under Section 38-E of the Act at the time of restoration of the land to the respondents herein who are the legal heirs of the deceased-protected tenant and that the physical possession of the protected tenant on the date of notification i.e. 01-01-1973 is not necessary for transfer of the ownership of the land, in favour of the protected tenant under Section 38-E of the Act. Consequently the learned Joint Collector dismissed the appeal confirming the order of the Mandal Revenue Officer. Challenging the said order of the Joint Collector, the appellants have come up with this revision petition.