MAN MOHAN & ORS.versusMOHD. MOHINUDDIN ALI KHAN (DEAD) BY L.RS.

                          [2008] 8 S.C.R 108


A                       MAN MOHAN & ORS.
                                   V.
        MOHD. MOHINUDDIN ALI KHAN (DEAD) BY L.RS.
               (Civil Appeal No. 5539 Of 2001)
                             MAY 9, 2008
B
    [TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.]


        Andhra Pradesh (Telengana Area) Tenancy and Agricul-
  tural Lands Act, 1950; Ss. 2(g}, 40, 44, 45 & 46 and clarificatory
C circular No. 650 dated March 30, 1951 issued by the Board of
  Revenue:
          Agricultural tenancy/protected tenancy - Eviction Peti-
    tion - Allowed by the Authority - Application for restoration of
D   tenancy - Rejected by the Authorities - Appeal against al-
    lowed by Appellate Authority - Revision Petition - Allowed by
    High Court doubting the claim of 'the appellant as adopted
    son of original tenant holding that the original land owner and
    his successor continue to cultivate the land in question after
E   getting back possession thereof - Correctness of - Held: In-
    correct - There is no impediment to the maintenance of Ap-
    plication for Restoration of Protected Tenancy as right of pro-
    tected tenants are heritable with a few exceptions, which are of
    no concern in the instant case - A tenant is entitled to recov-
    ery of possession in case owner does not cultivate the land
F   personally/discontinue the same after getting back the pos-
    session - Cultivation of the land by the land owner/successor,
    with the help of two persons by giving them share of crop, would
    not amount to personal cultivation in terms of s. 2(g) of the Act
    - In the facts and circumstances of the case, clarificatory Cir-
G   cular issued by the Board of Revenue not applicable - More-
    over the Circular would not override the statutory provisions ul
    s. 2(g) of the Act - Agricultural tenancy - Protected tenants.
         An application was filed by the original land owner

H                                 108
                    MAN MOHAN & ORS. v.                        109
           MOHD. MOHINUDDIN ALI KHAN (DEAD) BY L.RS.

      under Section 44 of the Andhra Pradesh (Telengana Area) A
      Tenancy and Agricultural Lands Act for determination of
      the protected tenancy of the predecessor of interest of
      the appellants, tenants. The application was allowed by
      the Authorities. Appellants, successors of the said ten-
      ant, filed an application u/ss.45 and 46 of the Act for res- B
      toration of possession of the land on ground that the origi-
      nal land owner or his successor had failed to cultivate
      the land in question. The application was rejected by the
      Authorities. The appeal preferred thereagainst by the
      successor of the original tenant was allowed by the Ap-        c
      pellate Authority. The land owners field a Revision peti-
      tion before the High Court, which was allowed by the High
      Court relying on Circular No. 650 dated March 30, 1951
      issued by the State Revenue Board holding that the origi-
      nal landowner and after his death, his successor, with the D
      help of two persons cultivated the land in question. Hence
      the present appeal.
            Appellant-tenants contended that though adoption
      of appellant No.1 by the original tenant had been proved
      on record but even assuming for the moment that his E
      adoption had not been proved yet, the fact that the other
      three claimants were his legal heirs was admitted and they
      were accordingly entitled to maintain the application un-
      der Sections 45 and 46 of the Act; that as per Section 45
      of the Act, if the land owner did not cultivate the land within F
      the time fixed in the said provision, the tenants were en-
      titled to a restoration of the land on an application
      made for this purpose; and that as the final Court of
      fact had clearly opined that neither the original owner nor
      his successors had cultivated the land, the appellants were G
      entitled to succeed.
--f        Respondent-landowner submitted that the order of
      the Tahsildar granting an adoption certificate to appellant
      No. 1 was wholly without jurisdiction; and that there was
      no proof as to when the land owners had been engaged H
    110       SUPREME COURT REPORTS                  [2008) 8 S.C.R


A   for cultivating the land by the original land owner or his
    successors.
          Allowing the appeal, the Court
        HELD: 1.1 It is true that the original tenant of the prop-
s erty in question lived upto the year 1973 but did not
  choose to make an application in terms of Sections 45
  and 46 of the Andhra Pradesh (Telengana Area) Tenancy
  and Agricultural Lands Act during his life time and left it to
  his successors to do so after his death. There is no im-
C pediment to the maintenance of such an application, and
  a perusal of s. 40 of the Act on the cor.trary clarifies that
  the rights of protected tenants are heritable with a few
  exceptions which are of no concern in this matter. (Para
  - 7) [114, B,C,D]

D        1.2 A bare perusal of the provisions u/ss.45 and 46 of
    the Act reveals that a tenant is entit1ed to the recovery of
    possession in case the owner does not cultivate the land
    personally or having commenced such cultivation discon-
    tinues the same within ten years. (Para - 9) [115-G]
E
           1.3 It appears to be the conceded position that the
    personal cultivation that was allegedly carried on by the
    original land owner and his successors does not fall un-
    der sub clause (i) or (ii) of s. 2(g) of the Act and the dispute
    pertains to the cultivation envisaged under sub clause
F   (iii) of s.2(g) of the Act. (Para - 9) [116-8,C]
        1.4 It is apparent that as the land was being cultivated
  by the two persons by giving a share of the crop to the
  landowners, it would not amount to personal cultivation
G in terms of s. 2(g) of the Act. (Para - 9) [116-E]
        1.5 The clarificatory circular issued by the Board of
  Revenue in 1951 is not applicable as it is nobody's case             ~
  that the persons engaged for cultivation were also shar-
  ing the expenses of the cultivation. Moreover this circu-
H far would not over ride the statutory provision u/s. 2(g)(iii)
                MAN MOHAN & ORS. v. MOHD. MOHINUDDIN         111
            ALI KHAN (DEAD) BY L.RS. [HARJIT SINGH BEDI, J.]

        of the Act, which was incorporated in the Act in 1961.                 A
        Hence, the appellant must succeed on this basis. (Para -
        9) [116-E,F]
             CIVILAPPELLATE JURISDCTION : Civil Appeal No. 5539
        of 2001
                                                                               B
             From the Judgment & Order dated 17.2.1999 of the High
        Court of Judicature at Andhra Pradesh in CRP No. 2336/1997
    •
             K. Amareswari, K. Maruthi Rao, K. Radha, Rana Kamal
        and Anjani Aiyagari for the Appellants.
                                                                               c
             M.N. Rao, Bhaskar Gupta, Sudha Gupta, B. Sri Ram,
        Vivek Jain, A. Ramesh and Anshuman Ashok for the Respon-
        dents.
             The Judgment of the Court was delivered by
                                                                               D
              HARJIT SINGH BEDI, J. 1. This appeal is directed
'       against the judgment of the Andhra Pradesh High Court dated
        171h February, 1999 whereby the plea of the appellant to re-
        claim the status of a protected tenant under Section 45 of the
        Andhra Pradesh (Telangana Area) Tenancy and Agricultural
        Lands Act, 1950 (hereinafter referred to as "the Act") has been        E
        rejected. The facts are as under:
              2. Dilawar Ali Khan was the original land owner. He filed
        an application under Section 44 of the Act for determination of
        the protected tenancy of the predecessor in interest of the ap-        F
        pellants, one Ramalingam who was a protected tenant. The
        said application was allowed in the year 1967, the tenancy ter-
        minated and the land holder was put in possession thereof. The
        appellants as successors of Ramalingam who died in 1973,
        filed an application under Sections 45 and 46 of the Act for res-      G
        toration of possession alleging that Dilawar Ali Khan and on
        his death, his successors, had failed to cultivate the land in ques-
        tion as contemplated by Section 45 of the Act and they were
        thus, entitled to a restoration of the possession. The said peti-
                                                                               H
    112        SUPREME COURT REPORTS                  [2008] 8 S.C.R.


A   tion was resisted by the land holders and it has claimed that
    after the terminajion of the tenancy under Section 44 of the Act,
    Dilawar Ali Khan had cultivated the land by investing a huge
    amount thereon and that after his death his heirs had cultivated
    the land with the assistance of one Gopaiah and Hanumaiah by
s   paying their wages in kind. It was also pleaded that Ramalingam
    had died issueless and that Man Mohan one of the applicants
    who claimed to be his adopted son was in fact not so and as
    such the application was not maintainable. The Revenue Of-
    ficer caller:! for evidence from both parties and after a analysis
c   thereof allowed the application, both on the question of main-
    tainability and also on facts.
        3. Aggrieved thereby, the applicants preferred an appeal
  before the Joint Collector. This officer found that the applicants
  were indeed the legal heirs of Ramalingam and that Dilawar Ali
D Khan nor his successors had cultivated the land after it had been
  restored to them on ?n application under Section 44 of the Act.
  The appeal was accordingly allowed. Aggrieved thereby the land
  owners filed a revision petition under Section 91 of the Act be-
  fore the High Court. The court in its judgment dated 171h Febru-
E ary, 1999 observed that the tenancy in the hands of Ramalingam
  had been terminated under Section 44 in the year 1967 and
  though Ramalingam had lived upto 1973 he had not raised any
  question with regard to the cultivation by the land owners. The
  court also observed that there was clear doubt as to the claim
F of adoption made by Man Mohan as the dependant certificate
  which had been issued by the Revenue Officer accepting his
  claim as the adopted son of the Ramalingam had no value, as it
  was the civil court alone that could give such a declaration_ In
  conclusion, the Court observed thus:
G         " I am of the opinion that there is no evidence to establish
          that the respondents are the legal heirs and successors of
          late Ramalingam and consequently they are not entitled to
          file an application U/ss 45 and 46 of the Act".
          4. The Court then examined the basis on which the claim
H
        MAN MOHAN & ORS. v. MOHD. MOHINUDDIN        113
    ALI KHAN (DEAD) BY L.RS. [HARJIT SINGH BEDI, J]

had been made and observed that from the evidence it appeared A
that Dilawar Ali Khan had indeed invested huge amounts of
money for the installation of a pump and electric motor and
though admittedly he and his successors had taken the help of
Gopaiah and Hanumaiah in the cultivation of the land a perusal
of their evidence showed that they were being paid on "Batai" B
basis i.e. a share of the crops and as such the land was deemed
to be under the self cultivation of the land owners. The Court
also relied for its conclusion on a clarificatory Circular No. 650
dated 3Q 1h March, 1951, issued by the Board of Revenue,
Hyderabad to the effect that if a land owner and one or more          c
persons cultivated the land jointly sharing the expenses as well
as the yield, the question of the creation of a tenancy at will did
not arise. The High Court accordingly set aside the order of the
Joint Commissioner and restored the order of the Revenue Of-
ficer. It is in this circumstance, that the tenants are before us.
                                                                      D
       5. Mrs. K. Amareswari, the learned Senior counsel for the
tenants - appellants has argued that though Man Mohan's adop-
tion by Ramalingam had been proved on record but even as-
suming for the moment that his adoption had not been proved
yet, the fact that the other three claimants Erramma, Yadaiah and     E
Eshwaraiah were his legal heirs was admitted and they were
accordingly entitled to maintain the application under Sections
45 and 46 of the Act It has also been submitted that as per
Section 45, if the land owner did not cultivate the land within the
time fixed in the said provision, the tenants were entitled to a      F
restoration of the land on an application made for this purpose
and as the final court of fact i.e. Joint Commissioner had clearly
opined that neither Dilawar Ali Khan nor his successors had cul-
tivated the land, the appellants were entitled to succeed.
      6. The learned counsel for the respondents have however G
pointed out that the order of the Tahsildar granting an adoption
certificate with respect to Man Mohan was wholly without juris-
diction and as there was no proof as to when Gopaiah and
Hanumaiah had been engaged for cultivating the land by Dilawar
Ali Khan or his successors, the appeal was liable to be dis- H
    114        SUPREME COURT REPORTS                      [2008] 8 S. C.R.


A missed.
         7. We have gone through the arguments advanced by the
   learned counsel for the parties. We are of the opinion that we
  are not really called upon to examine Man Mohan's status as
  the adopted son of Ramalingam in the light of the fact that the
8 application for restoration of possession filed under Sections
  45 and 46 of the Act is maintainable at the instance of the other
  three claimants who are admittedly the heirs of Ramalingam. It
  is true, as has been contended by the learned counsel, that                •
  Ramalingam lived upto the year 1973 but did not choose to
c make an application in terms of Sections 45 and 46 during his
  life time and left it to his successors to do so after his death.
  We find from a perusal of the Act that there appears no impedi-
  ment to the maintenance of such an application, and a perusal
  of Section 40 of the Act on the contrary clarifies that the rights of
D protected tenants are heritable with a few exceptions which
  are of no concern in this matter.
        8. In this background the substantive issue would be as to
  whether Dilawar Ali Khan or his successors had cultivated the
  land in terms of Section 45 of the Act and on a failure to do so
E the consequences thereof. Section 45 and 46 are re-produced
  below:
          "45. Landholder to restore possession if he fails to cultivate
          within one year:- (i) If upon the termination of tenancy under
F         section 44 the landholder -
               (a)   does not within one year from the date on which
                     he resumed possession of the land, or
               (b)   having commenced such discontinues the same
                     within ten years of the said date, he shall forthwith
G
                     restore possession of the land to the tenant
                     whose tenancy was terminated by him unless
                     he has obtained from the tenant his refusal in
                     writing to accept the tenancy on the terms and
                     conditions prevailing before the termination of
H
             MAN MOHAN & ORS. v. MOHD. MOHINUDDIN         115
         ALI KHAN (DEAD) BY L.RS. [HARJIT SINGH BEDI, J.]

                      the tenancy or has offered in writing to give          A
                      possession of the land to the tenant on the said
                      terms and conditions and the tenant has failed
                      to accept the offer within three months of the
                      receipt thereof:

                (2)   After the tenant has recovered possession of the       8
                      land under sub section (1) he shall, subject to the
                      provisions of this Act, hold the same on the terms
                      and conditions on which he held it immediately
                      before the termination of his tenancy.
                                                                             c
                (3)   If the land holder fails to restore possession of
                      the land to the tenant as provided in sub section
                      (1) he shall be liable to pay such compensation
                      to the tenant as may be determined by the
                      Tahsildar for the loss suffered by the tenant on       D
                      account of the eviction.

          Explanation: For the purposes of this section, references
          to a protected tenant shall include references to the heirs
          mentioned in the Explanation to section 40.

          46. Application for recovery of possession by tenant: - If         E
          at any time the tenant makes an application to the Tahsildar
          and satisfies him that the landholder has failed to comply
          within a reasonable time with the provision of Section 45,
          the protected tenant shall be entitled on a direction by the
          Tahsildar to obtain immediate possession of the land to            F
          such compensation as may be awarded by the Tahsildar
          for any loss caused to the tenant by his eviction and by the
          failure of the landholder to restore or give possession of
          the land to him as required by the said section.
                                                                             G
            9. A bare perusal of these provisions reveals that a tenant is
     entitled to the recovery of possession in case the owner does not
.r   cultivate the land personally or having commenced such cultivation
     discontinues the same within ten years. Section 2 (g) reads as under:

          " ''To cultivate personally" means to cultivate on one's own       H
    116        SUPREME COURT REPORTS                    (2008] 8 S.C.R.


A         account-

                (i)     by one's own labour, or

                (ii)    by the labour of any member of one's family, or

                (iii)   by servants on wages payable in cash or kind,
B                       but not in crop share or by hired labour under
                        one's personal supervision, or the personal
                        supervision of any member of one's family.         •

          It appears to be the conceded position that the personal
c cultivation that was allegedly carried on by Dilawar Ali Khan and
   his successors does not fall under sub clause (i) or (ii) and the
  dispute pertains to the cultivation envisaged under sub clause
   (iii). It is the case of the land owners that they had been cultivat-
  ing the land through Gopaiah and Hanumaiah and were paying
  them wages in kind. Mrs. K. Amareswari, the learned Senior
0
  counsel, has contended that from the evidence on record in-
  cluding the statements of Gopaiah and Hanumaiah both re-
  corded on 24th January, 1974 it was clear that they had culti-
  vated the land on behalf of Dilawar Ali Khan on "Batai" basis
E i.e. on half share of the produce almost from the date that Dilawar
  Ali Khan had taken possession of the land in 1967. It is there-
  fore apparent that as the land was being cultivated by these
  two persons by giving a share of the crop to the landowners, it
  would not amount to personal cultivation. The clarificatory cir-
  cular issued in 1951 is not applicable as it is nobody's case
F that Gopaiah and Hanumaiah were also sharing the expenses
  of the cultivation. Moreover this circular would not over ride the
  statutory provision 2(g)(iii) which was incorporated in the Act in
  1961. We, are therefore, of the opinion that the appellant must
  succeed on this basis. We accordingly set aside the judgment
G and order of the High Court, and restore the order of the Joint
  Collector dated 16th June, 1977. No order as to costs.
    S.K.S.                                           Appeal allowed.


H