1. These four Civil Revision Petitions, preferred under Section 91 of the Telangana Tenancy and Agricultural Lands Act, 1950 (originally the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, and hereinafter referred to as “the Tenancy Act”), call in question the common order dated 14.03.2008 passed by the Joint Collector-II, Ranga Reddy District, in four connected appeals preferred under Section 90 of the Tenancy Act, whereby the proceedings of the Revenue Divisional Officer, Chevella Division, dated 18.02.2006 in File No.G/L/1375/2001, and the consequential proceedings dated 14.06.2006, came to be set aside.
2. The particulars of the four Civil Revision Petitions and of the corresponding proceedings before the Joint Collector-II, Ranga Reddy District, are as follows:
(i) C.R.P.No.1842 of 2018 – against the order dated 14.03.2008 inCase No.F2/710/2007;
(ii) C.R.P.No.1855 of 2018 – against the order dated 14.03.2008 in Case No.F2/4162/2006;
(iii) C.R.P.No.1869 of 2018 – against the order dated 14.03.2008 in Case No.F2/5651/2006; and
(iv) C.R.P.No.1870 of 2018 – against the order dated 14.03.2008 in Case No.F2/6435/2006.
3. The revision petitioner in all the four Civil Revision Petitions was one Santhu Bai, W/o. Ganapat Singh. She died during the pendency of these proceedings, and petitioners 2 to 7 have been brought on record as her legal representatives and are prosecuting the Civil Revision Petitions. For convenience, the original revision petitioner is hereinafter referred to as “the petitioner”.
4. As the petitioner in all the four Civil Revision Petitions is one and the same, as the orders under challenge were passed by the same authority on the same date upon a common set of facts, and as the questions arising for determination are identical, the four Civil Revision Petitions were heard together and are being disposed of by this common order.
5. Heard Sri A. Ravinder Reddy, learned Senior Counsel representing Sri Jella Srikanth, learned counsel on record for the revision petitioners and Sri D.V. Seetharam Murthy, learned Senior Counsel representing Sri A. Karthik, learned counsel on record for the contesting unofficial respondents. The record was perused.
FACTUAL BACKGROUND
6. The subject lands are situated in Sy.Nos.181 and 182 of Janwada Village, Shankerpally Mandal, Ranga Reddy District, admeasuring in all about Ac.22-00 gts. Smt. Prameela Devi was the original Landholder and Pattadar. Late T. Narayan Singh was recorded as the Protected Tenant in respect of the subject lands. That Narayan Singh held the status of a protected tenant under the Tenancy Act is not in serious dispute before this Court, and the entire controversy proceeds upon that common foundation.
7. The rival claims run along two distinct lines. The petitioner claims as a successor of the protected tenant: she asserts that she is the daughter of one Tulja Ram Singh, a predeceased son of late T. Narayan Singh, and that she is therefore the granddaughter of the protected tenant and entitled, by force of Section 40 of the Tenancy Act, to succeed to the protected tenancy and consequently to ownership under Section 38-E. The contesting respondents, on the other hand, claim as purchasers deriving title from Laxman Singh and Tulja Ram Singh.
8. The claim set up by Laxman Singh and Tulja Ram Singh, through whom the contesting respondents trace their right, is itself twofold. First, they claimed and obtained an ownership certificate under Section 38-E of the Tenancy Act upon the assertion that they were the legal heirs of late T. Narayan Singh, being, on their own showing before this Court, the sons of late Sheetal Singh, who was the brother of Narayan Singh. Secondly, and independently, they set up title under a registered Sale Deed dated 09.11.1971 bearing Document No.1050 of 1971, said to have been executed in their favour by the original landholder, Smt. Prameela Devi. It is from Laxman Singh and Tulja Ram Singh that the several respondents, including respondents 14 and 15, claim to have purchased different portions of the subject lands under successive registered conveyances, followed by mutations and entries in the revenue records and the issuance of pattadar pass books and title deeds.
9. There is a further transaction pleaded by the petitioner. It is asserted that late T. Narayan Singh had himself purchased the subject lands from the original landholder for valuable consideration in or about the year 1952, and that the said purchase found reflection in the Khasra Pahani for the year 1954- 55. Significantly, the contesting respondents also rely upon the very same transaction, though to the opposite end, contending that the purchase altered the character of the holding and that Narayan Singh thereafter figured in the revenue records as pattadar rather than as protected tenant. It is common ground that the transaction of 1952, if it took place, was not evidenced by a registered instrument.
10. The material on record discloses the following chronology of proceedings, which it is necessary to set out before turning to the rival contentions:
(i) An application preferred by the petitioner claiming succession to the protected tenancy, registered as File No.LRW/165/1975 on the file of the competent authority, came to be rejected by order dated 30.05.1975;
(ii) O.S.No.9 of 1974, a suit for perpetual injunction, was instituted and was carried in appeal in A.S.No.18 of 1986, which was disposed of by judgment and decree dated 22.07.1987, wherein findings were recorded adverse to the petitioner’s asserted relationship with late T. Narayan Singh;
(iii) An ownership certificate under Section 38-E of the Tenancy Act was issued in favour of Laxman Singh and Tulja Ram Singh in respect of part of the subject lands on the footing that they were the legal heirs of late T. Narayan Singh;
(iv) The appeal preferred by the petitioner against the grant of that certificate was allowed by the Joint Collector, Ranga Reddy District, by order dated 31.03.2001 in File No.F2/4786/1997; the proceedings granting the certificate were set aside and the matter was remanded to the Revenue Divisional Officer for fresh consideration, the Joint Collector recording in the course of that order that it was prima facie established that the appellant was the daughter of Tulja Ram Singh and the granddaughter of Narayan Singh, the said relationship not having been disputed before him;
(v) Upon remand, the Revenue Divisional Officer, Chevella Division, by proceedings dated 18.02.2006 in File No.G/L/1375/2001, cancelled the earlier Section 38-E ownership certificate and held the petitioner entitled to succeed to the protected tenancy rights of late T. Narayan Singh; consequential proceedings followed on 14.06.2006; and
(vi) The persons who had purchased portions of the subject lands from Laxman Singh and Tulja Ram Singh preferred four appeals under Section 90 of the Tenancy Act, which were allowed by the Joint Collector-II, Ranga Reddy District, by the common order dated 14.03.2008 now under challenge.
THE REASONING OF THE JOINT COLLECTOR-II
11. The Joint Collector-II, in the common order dated 14.03.2008, proceeded in substance upon three lines of reasoning. First, he took the view that the question of the petitioner’s succession to late T. Narayan Singh stood concluded by the judgment and decree dated 22.07.1987 in A.S.No.18 of 1986, wherein the petitioner had failed to establish the relationship asserted by her, and that it was not open to the revenue authorities to reopen that question. Secondly, he held that the proceedings culminating in the order dated 18.02.2006 had been conducted without notice to, and without the participation of, the persons who had by then acquired interests in the subject lands under registered conveyances, and further that Tulja Ram Singh had died before those proceedings were taken. Thirdly, he held that the earlier order dated 30.05.1975 rejecting the petitioner’s succession claim had not been effectively displaced and continued to hold the field. Upon that reasoning, the proceedings of the Revenue Divisional Officer dated 18.02.2006 and the consequential proceedings dated 14.06.2006 were set aside.
12. It is convenient to record at the outset that the Joint Collector-II nowhere adverted to Sections 19, 38-D, 38-E or 40 of the Tenancy Act, nor to the effect of Section 99 thereof upon the findings rendered by the Civil Court. That omission lies at the heart of the controversy in these revisions.
SUBMISSIONS ON BEHALF OF THE REVISION PETITIONERS
13. Sri A. Ravinder Reddy, learned Senior Counsel representing Sri Jella Srikanth, learned counsel on record for the revision petitioners, would submit that the status of late T. Narayan Singh as the protected tenant of the subject lands is not in dispute, and that the rights of the parties must therefore be tested exclusively by reference to the scheme of the Tenancy Act and not by reference to the ordinary law of transfer of property.
14. It is submitted that Laxman Singh and Tulja Ram Singh obtained the Section 38-E ownership certificate by representing that they were the sons and legal heirs of late T. Narayan Singh, whereas they were in truth the sons of late Sheetal Singh, the brother of the protected tenant. The certificate was thus procured upon a representation which was, on the respondents’ own present showing, untrue; and a certificate so obtained cannot be permitted to stand.
15. It is next submitted that, the subject lands having already been dealt with in favour of Narayan Singh in or about 1952, the subsequent Sale Deed dated 09.11.1971 executed by Smt. Prameela Devi in favour of Laxman Singh and Tulja Ram Singh could convey no lawful right; and that those claiming through the said vendees can, on the elementary principle that a transferee takes no better title than his transferor, acquire no right higher than that of their vendors, their claims being in any event subject to the restrictions imposed by the Tenancy Act.
16. The learned Senior Counsel would place considerable reliance upon the order dated 31.03.2001 of the Joint Collector, wherein the petitioner’s relationship with the protected tenant was recorded as prima facie established and as undisputed before that authority, and would contend that the said finding went unchallenged and ought to have weighed with the Joint Collector-II while dealing with the appeals preferred by the subsequent purchasers.
17. Upon the effect of the civil proceedings, it is submitted that A.S.No.18 of 1986 arose out of a suit for perpetual injunction, in which the matter directly and substantially in issue was possession and the entitlement to an injunction, and that any observation therein touching relationship or succession was collateral and incidental. Such an observation could not be treated as conclusively determining a statutory entitlement arising under a special enactment, particularly where the proceedings before the revenue authorities concerned succession to a protected tenancy under Section 40 and the consequent conferment of ownership under Section 38-E.
18. It is further submitted that Section 99 of the Tenancy Act bars the jurisdiction of the Civil Court in respect of matters which the Act requires to be settled, decided or dealt with by the authorities constituted under it. The revenue authorities were therefore bound to determine the rights of the parties independently and in accordance with the statutory provisions, and could not abdicate that jurisdiction by treating the findings rendered in a suit for injunction as determinative of succession or of ownership under Section 38-E.
19. Finally, it is submitted that there was no valid termination of the protected tenancy in the manner prescribed by Section 19 of the Tenancy Act, and that the rights flowing from the protected tenancy therefore subsisted and devolved upon the successors of Narayan Singh. Reliance is placed upon the judgment of the Hon’ble Supreme Court in B. Bal Reddy v. Teegala Narayana Reddy ((2016) 15 SCC 102.), for the proposition that the interest of a protected tenant continues to be operative and subsisting so long as the protected tenancy is not validly terminated, and that even a loss of possession does not by itself bring the protected tenancy to an end.
20. It is accordingly prayed that the Civil Revision Petitions be allowed, that the common order dated 14.03.2008 be set aside, and that the proceedings of the Revenue Divisional Officer dated 18.02.2006 be restored, with such consequential reliefs as are permissible in law.
SUBMISSIONS ON BEHALF OF RESPONDENTS 14 AND 15
21. Sri D.V. Seetharam Murthy, learned Senior Counsel representing Sri A. Karthik, learned counsel on record for the contesting unofficial respondents, would submit at the threshold that the Civil Revision Petitions are liable to be dismissed for want of locus standi. The petitioner’s claim to be the legal heir and successor of late T. Narayan Singh was considered and rejected by a competent Civil Court in the proceedings culminating in A.S.No.18 of 1986, and the judgment and decree dated 22.07.1987 attained finality. It is not open to the petitioner to re-agitate the self-same question indirectly in proceedings under the Tenancy Act. Reliance is placed upon Sulochana Amma v. Narayanan Nair ((1994) 2 SCC 14.) and Ramchandra Dagdu Sonavane v. Vithu Hira Mahar ((2009) 10 SCC 273.).
22. It is submitted that the material on record establishes that late Narayan Singh acquired the subject lands from the original pattadar, Smt. Prameela Devi, under an unregistered transaction in or about 1952, which was reflected in the Khasra Pahani for 1954-55, whereafter he came to be recorded as pattadar and the character of the holding stood altered. The petitioners cannot, it is urged, invoke the protected-tenancy status of Narayan Singh separated from the subsequent revenue entries and from the adjudication of the Civil Court. On the limits of the jurisdiction of the tenancy and revenue authorities where a question stands already adjudicated by a competent Civil Court, reliance is placed upon Syed Abdul Majeed v. Joint Collector-II, Ranga Reddy District (2006 SCC OnLine AP 564.), Omprakash Agarwal v. Joint Collector (1997 SCC OnLine AP 449.) and B. Malla Reddy v. State of Telangana (2021 SCC OnLine TS 895.).
23. It is pointed out that the petitioner had, as early as in 1975, asserted the very same status and had filed a succession application in File No.LRW/165/1975, which came to be rejected by order dated 30.05.1975. That order was never effectively displaced in accordance with law and continued to operate; and a challenge, after a substantial lapse of time, to a consequential proceeding could not revive or reopen the original determination. Reliance is placed upon Lakshmi Bai v. Pedda Lakshman (died) by LRs. (2007 (1) ALD 614.) for the proposition that a concluded adjudication cannot be circumvented by instituting subsequent proceedings in another form.
24. It is further submitted that the order dated 31.03.2001 of the Joint Collector and the consequential order dated 18.02.2006 of the Revenue Divisional Officer were made without adverting to the effect of the Civil Court judgment, and without impleading or effectively hearing the persons who had by then acquired rights under registered conveyances from Laxman Singh and Tulja Ram Singh. It is particularly emphasised that Tulja Ram Singh had died prior to those proceedings. Reliance is placed upon G. Venu Gopal Reddy v. P. Anantha Reddy (2001 SCC OnLine AP 861.) and Vorla Ramachandra Reddy v. Joint Collector-I (2021 SCC OnLine TS 703.).
25. The registered conveyances relied upon by the respondents, it is submitted, were for valuable consideration and were followed by successive registered transfers, mutations and revenue entries, including the issuance of pattadar pass books and title deeds. The respondents are therefore persons claiming under registered instruments and cannot be divested of accrued rights by an order passed behind their back. Reliance is placed upon Boddam Narsimha v. Hasan Ali Khan ((2007) 11 SCC 410.).
26. It is submitted that the respondents, upon coming to know of the proceedings which affected them, rightly invoked the statutory remedy of appeal under Section 90 of the Tenancy Act, and that the necessity of affording an effective opportunity to persons whose substantive rights are directly affected by revenue or tenancy proceedings is well settled, reliance being placed upon Prabhulingam v. Y. Ramiah (1997 (5) ALD 82.) and Jupudi Bhushanam v. Joint Collector, Khammam (1997 (1) ALD 440.).
27. Meeting the argument founded upon Section 99 of the Tenancy Act, the learned Senior Counsel would urge that the respondents do not seek to confer upon the Civil Court a jurisdiction entrusted exclusively to the tenancy authorities; they rely only upon the final adjudication of the Civil Court concerning the petitioner’s own asserted relationship, succession and possession. The statutory authorities were bound to take that adjudication into account and could not grant a consequential certificate under Section 38-E by virtually reopening what stood determined. Reliance is placed upon Ponnala Narsing Rao v. Nallolla Pentaiah ((1998) 9 SCC 183.) and upon the decisions already cited.
28. Lastly, it is submitted that the absence of a contest by Laxman Singh and Tulja Ram Singh in the later tenancy proceedings cannot be read as an admission of the petitioner’s status, more particularly because Tulja Ram Singh was by then dead, and because no inference drawn from the conduct of a party can operate to create or transfer substantive rights in immovable property as against the subsequent purchasers, who were strangers to those proceedings. It is accordingly prayed that the Civil Revision Petitions be dismissed.
THE STATUTORY SCHEME UNDER THE TENANCY ACT
29. Since the rival claims of both sides are founded upon, and must ultimately be tested by, the provisions of the Tenancy Act, it is necessary to set out the material provisions and the scheme which emerges from them. The provisions are extracted only to the extent necessary for the adjudication of the present controversy.
30. Chapter IV of the Tenancy Act deals with protected tenants. Section 34 identifies the persons who are deemed to be protected tenants and Section 35 provides for the decision of claims by the Tahsildar, a declaration under that provision being conclusive. Section 38 confers upon a protected tenant the right to purchase the landholder’s interest, subject to the ceiling conditions in subsection (7). Sections 38-A, 38-B, 38-C and 38-D provide for the several further modes by which, and the conditions upon which, the landholder’s interest may pass, and regulate the landholder’s power to sell to a stranger. Section 38-E provides for the compulsory transfer of ownership from a notified date. Section 40 makes the rights of a protected tenant heritable and, by its Explanation, exhaustively defines who alone may be treated as his heir. Section 19 prescribes the only modes by which a tenancy may be terminated. Section 99 bars the jurisdiction of the Civil Court in respect of questions which the Act entrusts to the authorities constituted under it.
31. Section 19, reads:
“19. Termination of tenancy. — (1) Notwithstanding any agreement or usage or any decree or order of a Court of law, but subject to the provisions of sub-section (3), no tenancy of land shall be terminated before the expiration of the period for which the land is leased or deemed to be leased otherwise than, —
(a) by the tenant by surrender of his rights to the landholder at least a month before the commencement of the year:
Provided that such surrender is made by the tenant in writing and is admitted by him before and is made in good faith to the satisfaction of the Tahsildar; or Provided further that where the land is cultivated jointly by joint tenants or members of an undivided Hindu family, unless the surrender is made by all of them, it shall be ineffective in respect of such joint tenants as have not joined in the application for surrender, irrespective of the fact that the names of all the joint tenants are not mentioned in the certificate]; (b) by the landholder on a ground specified in sub-section (2).”
32. Two features of Section 19 are material. The provision opens with a non- obstante clause which overrides not merely agreements and usages but also “any decree or order of a Court of law”. And it prescribes an exhaustive and formal route for termination: a surrender in writing, admitted by the tenant before the Tahsildar and found by that officer to be genuine, or a termination by the landholder upon one of the grounds enumerated in sub-section (2) preceded by six months’ notice in writing. The necessary consequence is that a protected tenancy is not brought to an end by the mere execution of a conveyance by the landholder, by the tenant ceasing to be in possession, or by a change in the revenue entries.
33. Sections 38 and 38-A to 38-D together constitute a graded code regulating the passing of the landholder’s interest to the protected tenant, and it is necessary to notice them because both sides invoke transactions said to have been entered into between the landholder and others. Section 38(1) confers upon a protected tenant, notwithstanding anything to the contrary in any law, usage or contract, the right to purchase the landholder’s interest in the land held by him as a protected tenant; sub-sections (2) to (6) prescribe the machinery of offer, determination of reasonable price by the Tribunal, deposit and certificate. Section 38-A provides for the case where the landholder consents to sell and the reasonable price is agreed between them, in which event sub-section (7) of Section 38 does not apply and either party may apply to the Tribunal. Section 38-B provides for a relinquishment by the landholder without consideration. Section 38-C confers upon a landholder holding not more than three family holdings the option, on receipt of a notice of purchase from the protected tenant, either to terminate the tenancy in the manner and within the limits of Section 44 or to sell the land to the tenant.
34. Two provisions within Section 38 require particular notice. First, sub-section (7) subjects the right of purchase to a ceiling, limiting it, where the protected tenant holds no land as a landholder, to the extent of a family holding for the local area concerned, and requiring that not less than twice a family holding be left with the landholder. That limitation is carried into Section 38-E (1), which effects the statutory vesting “subject to the condition laid down in sub-section (7) of section 38”. Secondly, and of direct relevance here, the second proviso to clause (b) of subsection (7) reads:
“Provided further that in the case of purchase by any person other than the protected tenant, the rights and interests of the said tenant in the lease land, shall continue as before.”
35. The Legislature has thus declared, in the plainest language, that a purchase by a stranger leaves the rights and interests of the protected tenant untouched. That proviso is a complete answer to any contention that a conveyance executed by the landholder in favour of a third party operates to displace or diminish the protected tenancy.
36. Section 38-D, which governs the situation where the landholder proposes to sell the land held by the protected tenant, reads:
“38-D. Procedure when landholder intends to sell land to a protected tenant. —
(1) If the landholder at any time intends to sell the land held by the protected tenant, he shall give a notice in writing of his intention to such protected tenant and offer to sell the land to him. In case the protected tenant intends to purchase the land, he shall intimate in writing his readiness to do so within six months from the date of the receipt of such notice…
(2) If the protected tenant does not exercise the right of purchase in response to the notice given to him by the landholder under sub-section (1) such protected tenant shall forfeit his right of purchase of the same and the landholder shall be entitled to sell such land to any other person. On such a purchase by another person, the protected tenant shall forfeit all his rights in the land save those provided for in section 41.”
37. Section 38-D therefore confers a statutory pre-emptive right in favour of the protected tenant. The landholder’s power to sell to a stranger is not an unqualified one: it arises only upon the protected tenant, having been served with a written notice and offer, declining or failing to exercise his right of purchase. A sale to a stranger effected without that antecedent notice and offer is a sale made in derogation of the statute. The Hon’ble Supreme Court has held in B. Bal Reddy’s case (supra) that a transaction of sale by the landholder in favour of third parties, of agricultural land under the holding of a protected tenant, is contrary to Section 38- D of the Tenancy Act. The relevant paragraph is as under:
“9. Section 38-D of the Act prescribes the procedure to be followed when landholder intends to sell the land held by a protected tenant. Accordingly, the land must first be offered by issuing a notice in writing to the protected tenant and it is only when the protected tenant does not exercise the right of purchase in accordance with the procedure, that the landholder can sell such land to any other person. The effect of this provision and non-compliance thereof was considered by this Court in Kotaiah v. Property Assn. of Baptist Churches (P)Ltd. and it was laiddown: (SCC pp. 431-32, para 22):
“22. (iv) Section 38-D prohibits the landholder from alienating the tenanted land to third parties. If the landholder intends to sell the land, he must give notice in writing of his intention to the protected tenant. The first offer must be given to the protected tenant. It is only when the protected tenant does not exercise the right to purchase, the landholder could sell the land to third parties. The alienation made in contravention of these provisions has no legal effect.”
38. Section 38-E, which effects a compulsory transfer of ownership, reads thus:
“38-E. Ownership of lands held by protected tenants to stand transferred to them from a notified date.—(1) Notwithstanding anything in this Chapter or any law for the time being in force or any custom, usage, judgment, decree, contract or grant to the contrary, the Government may, by notification in the Telangana Gazette, declare in respect of any area and from such date as may be specified therein, that ownership of all lands held by protected tenants which they are entitled to purchase from their land-holders in such area under any provision of this Chapter shall, subject to the condition laid down in sub-section (7) of section 38, stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands…
Explanation.—If a protected tenant, on account of his being dispossessed otherwise than in the manner and by order of the Tahsildar as provided in section 32, is not in possession of the land on the date of the notification issued hereunder, then for the purposes of this sub-section, such protected tenant shall, notwithstanding any judgement, decree or order of any Court, or the order of the Board of Revenue or Tribunal or other authority, be deemed to have been holding the land on the date of the notification…
(2) A certificate in the prescribed form declaring him to be owner shall be issued by the Tribunal after holding such enquiry as may be prescribed, to every such protected tenant and notice of such issue shall simultaneously be issued to the landholder. Such certificate shall be conclusive evidence of the protected tenant having become the owner of the land with effect from the date of the certificate as against the landholder and all other persons having any interest therein…”
39. The features of Section 38-E which bear directly upon this case are these. The vesting operates by force of the statute upon the notified date, and not by reason of any act of parties. The opening non obstante clause overrides, in terms, any “judgment, decree, contract or grant to the contrary”. The Explanation goes further and provides that a protected tenant who has been dispossessed otherwise than by an order of the Tahsildar under Section 32 shall, “notwithstanding any judgement, decree or order of any Court”, be deemed to have been holding the land on the notified date. The certificate contemplated by sub-section (2) is not the source of the right; it is evidence of a right which has already vested. And, critically, the certificate is conclusive only when issued to “every such protected tenant” — that is, to a person who answers that statutory description.
40. The notified date for the Telangana area is 01.01.1973, and the benefit of Section 38-E is available only to those who held the lands as protected tenants and continued so to hold them on that date.
41. Section 40, which governs devolution, is of decisive importance in the present matters and reads:
“40. Rights of protected tenant heritable- (1) All rights of a protected tenant shall be heritable.
(2) If a protected tenant dies, his heir or heirs shall be entitled to hold the tenancy on the same terms and conditions on which such protected tenant was holding the land at the time of his death and such heirs may, notwithstanding anything contained in this Act, sub-divide inter se according to their shares the land comprised in the tenancy to which they have succeeded.
(3) If a protected tenant dies without leaving any heirs, all his rights shall be extinguished.
Explanation. —The following persons only shall be deemed to be the heirs of a protected tenant for the purposes of this section: —
(a) his legitimate lineal descendants by blood or adoption;
(b) in the absence of any such descendants, his widow for so long as she does not remarry.
(4) The interest of a protected tenant in the land held by him as a protected tenant shall form sixty per cent of the market value of all the interests in the land and that of the landholder and of persons claiming under him shall be limited to the remaining forty per cent.”
42. The Explanation to Section 40 is exhaustive and restrictive in the plainest terms. The word “only” admits of no addition to the two categories enumerated. Succession to a protected tenancy is thus confined to the legitimate lineal descendants of the protected tenant, by blood or by adoption, and, in their absence, to his unmarried widow. Collaterals — brothers, and the sons of brothers — are conspicuously excluded. It follows that a person who is not within the Explanation cannot succeed to a protected tenancy at all, and cannot therefore be a person to whom ownership can stand transferred under Section 38-E in the character of a successor to the protected tenant. Sub-section (4) is equally significant: it fixes the protected tenant’s interest at sixty per cent of the market value of all interests in the land and confines the landholder “and of persons claiming under him” to the residuary forty per cent — a statutory recognition that a purchaser from the landholder does not step into the shoes of the protected tenant.
43. Section 99, which bars the jurisdiction of the Civil Court, reads:
“99. Bar of jurisdiction-
1) Save as provided in this Act no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Tahsildar, Tribunal or Collector or by the Board of Revenue or Government.
(2) No order of the Tahsildar, Tribunal or Collector or of the Board of Revenue or Government made under this Act, shall be questioned in any Civil or Criminal Court.”
44. The section operates in two distinct ways, and both are material to these revisions. Sub-section (1) withdraws from the cognisance of the Civil Court every question which the Act requires to be settled, decided or dealt with by the designated authorities. Sub-section (2) goes further and places the orders of those authorities beyond challenge in any Civil or Criminal Court. The Hon’ble Supreme Court in Dhruv Green Field Ltd. v. Hukam Singh ((2002) 6 SCC 416), while considering an analogous statutory bar, held that where a Special Act expressly bars the jurisdiction of a Civil Court in respect of matters specified therein, the jurisdiction of the ordinary Civil Court stands excluded. The Court further held that where a particular matter is empowered by the statute to be determined by the designated authority, the jurisdiction of the Civil Court in respect of that matter is barred. The relevant para is being extracted below for ready reference:
“10. In the light of the above discussion, the following principles may be restated:
(1) If there is express provision in any special Act barring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of an ordinary civil court shall stand excluded.
(2) If there is no express provision in the Act but an examination of the provisions contained therein leads to a conclusion in regard to exclusion of jurisdiction of a civil court, the court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of the civil court cannot be inferred.
(3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly, the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity.
(emphasis supplied)’’
45. The ambit of the bar has been considered by the Hon’ble Supreme Court in Saraswati v. Lachanna ((1994) 1 SCC 611.), wherein it was held that the exclusion operates only in respect of those questions which the Act itself requires to be decided by the designated authorities, and does not extend to matters lying outside that description. The converse proposition follows with equal force: where a question does fall within that description, the Civil Court has no jurisdiction to decide it, and where an order has been made under the Act, the Civil Court cannot sit in judgment upon it. The relevant para reads as follows:
“7. Where a particular Act creates a right and also provides a forum for enforcement of such right and bars the jurisdiction of the civil court then ouster of the civil court jurisdiction has to be upheld. But the situation will be different where the statute neither creates the right in question nor provides any remedy or having created any right or liability no forum for adjudication of any dispute arising out of such right or liability is provided. In such a situation, the ouster of the civil court's jurisdiction is not to be easily inferred….”
45. Two further provisions require notice. Section 90(1) provides an appeal to the Collector from every order, other than an interim order, passed by the Tahsildar, the Deputy Collector or the Tribunal. Section 91 confines the revisional jurisdiction of this Court to three grounds, namely, that the original or appellate authority exercised a jurisdiction not vested in it by law, that it failed to exercise a jurisdiction so vested, or that in following the procedure or in passing the order it acted illegally or with material irregularity. The jurisdiction of this Court under Section 91 is therefore supervisory and not appellate; it is not open to this Court to reappreciate evidence and substitute its own conclusions of fact for those of the statutory authorities.
46. The scheme which emerges may be summarised thus. A protected tenancy, once it comes into existence, subsists until it is terminated in the manner and by the authority prescribed by Section 19. During its subsistence the landholder’s power of alienation is fettered by Section 38-D. Upon the notified date the ownership of the land stands transferred by operation of law to the protected tenant then holding it, notwithstanding any judgment, decree, contract or grant to the contrary. Upon the death of the protected tenant those rights devolve, and devolve only, upon the persons enumerated in the Explanation to Section 40. All these are questions which the Act entrusts to the authorities constituted under it, and to that extent the jurisdiction of the Civil Court stands excluded by Section 99.
POINTS FOR CONSIDERATION
47. Upon the pleadings, the material on record and the submissions advanced on either side, the following points arise for consideration:
(i) Whether the findings recorded by the Civil Court in the suit for perpetual injunction, as affirmed by the judgment and decree dated 22.07.1987 in A.S.No.18 of 1986, operate as res judicata or otherwise conclude the question of succession to the protected tenancy of late T. Narayan Singh in the proceedings under the Tenancy Act, having regard to Section 99 thereof;
(ii) Whether Laxman Singh and Tulja Ram Singh, claiming as the sons of Sheetal Singh, the brother of the protected tenant, were “heirs” of late T. Narayan Singh within the meaning of the Explanation to Section 40, and whether the ownership certificate granted to them under Section 38-E on that footing is sustainable;
(iii) Whether the Sale Deed dated 09.11.1971 executed by the landholder and the successive alienations made thereunder conferred upon the contesting respondents any right superior to, or in derogation of, the protected tenancy, having regard to Sections 19, 38-D and 38-E of the Tenancy Act;
(iv) Whether the order dated 30.05.1975 in File No.LRW/165/1975 and the delay in questioning it disentitle the petitioner from maintaining her claim, and whether the petitioner has established her status as a legitimate lineal descendant of the protected tenant; and
(v) Whether the proceedings of the Revenue Divisional Officer dated 18.02.2006 and the common order of the Joint Collector-II dated 14.03.2008 are sustainable; and to what relief the parties are entitled.
ANALYSIS AND FINDINGS
48. Before turning to the individual points, it is necessary to record one matter which is common ground and which supplies the foundation for all that follows. Neither side disputes that late T. Narayan Singh was the recorded protected tenant of the subject lands. The respondents’ own claim to an ownership certificate under Section 38-E rests upon their assertion that they are his heirs, and that assertion is intelligible only upon the footing that he was a protected tenant. The entire controversy therefore proceeds from an admitted protected tenancy, and the question in every branch of the case is what became of the rights which flowed from it.
Point (i) – The effect of the findings recorded by the Civil Court in the suit for perpetual injunction
49. The Joint Collector-II treated the judgment and decree dated 22.07.1987 in A.S.No.18 of 1986 as concluding the question of succession, and upon that view declined to examine the matter for himself. In the opinion of this Court, that approach is erroneous on three independent grounds.
50. The first ground is one of jurisdiction. Succession to a protected tenancy is governed by Section 40 of the Tenancy Act, and the conferment of ownership upon a protected tenant, together with the issuance and cancellation of the certificate evidencing it, is governed by Section 38-E. These are matters which the Act requires to be settled, decided and dealt with by the authorities constituted under it. Sub-section (1) of Section 99 accordingly excludes the jurisdiction of the Civil Court in respect of them, and sub-section (2) forbids any order made under the Act from being questioned in a Civil or Criminal Court. It follows that a Civil Court trying a suit for perpetual injunction had no jurisdiction to decide, as between the parties before it, who was entitled to succeed to the protected tenancy of late T. Narayan Singh under Section 40; and it had no jurisdiction to sit in judgment upon the orders made from time to time by the tenancy authorities. If, as the respondents contend, the Civil Court in fact proceeded to determine the petitioner’s succession to the protected tenancy, it did what Section 99 forbade it to do. A determination rendered by a Court which lacks jurisdiction over the subject matter is a nullity; its invalidity may be set up whenever and wherever it is sought to be relied upon, and such a determination cannot find a plea of res judicata. That principle is settled by Kiran Singh v. Chaman Paswan (AIR 1954 SC 340.) and Sushil Kumar Mehta v. Gobind Ram Bohra ((1990) 1 SCC 193.).
51. The second ground rests upon the nature of the earlier suit. A suit for perpetual injunction simpliciter is concerned with possession. The matter directly and substantially in issue in such a suit is whether the plaintiff was in lawful possession and whether he is entitled to be protected in it. A finding upon title, relationship or succession rendered in the course of such a suit is ordinarily collateral and incidental, and a finding which is merely collateral or incidental does not operate as res judicata. The observation in Sulochana Amma (supra) upon which the respondents place reliance is not to the contrary. As explained in Sajjadanashin Sayed v. Musa Dadabhai Ummer ((2000) 3 SCC 350.) and in Anathula Sudhakar v. P. Buchi Reddy, ((2008) 4 SCC 594.) a finding on title in a suit for injunction binds in later proceedings only where title was directly and substantially in issue, where there were pleadings and a specific issue in that behalf, and where the determination of title was necessary for the grant of the injunction. The respondents, who set up the plea, did not place before the tenancy authorities the plaint, the written statement or the issues framed in O.S.No.9 of 1974, and the Joint Collector-II did not examine whether the finding relied upon satisfied that test. He was therefore not entitled to assume that it did. The relevant paragraph from Anathula Sudhakar’s case (supra) is extracted hereunder:
“19. This Court in Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer [(2000) 3 SCC 350] (at SCC pp. 362-63, para 24) noticed the apparent conflict in the views expressed in Vanagiri [Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari, AIR 1965 Mad 355] and Sulochana Amma [AIR 1965 Mad 355] and clarified that the two decisions did not express different views, but dealt with two different situations, as explained in Corpus Juris Secundum (Vol. 50, para 735, p. 229):
“Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title.”
52. The third ground is furnished by the statute itself. Section 38-E(1) opens with a non-obstante clause which overrides any “judgment, decree, contract or grant to the contrary”, and the Explanation to that sub-section provides in terms that a dispossessed protected tenant shall, “notwithstanding any judgement, decree or order of any Court”, be deemed to have been holding the land on the notified date. Section 19(1) likewise overrides “any decree or order of a Court of law”. The Legislature has thus expressly provided that the statutory vesting and the statutory protection are not to be displaced by a civil decree. To treat a decree in an injunction suit as extinguishing rights conferred by Sections 19, 38-E and 40 is to defeat the very provisions which the Legislature enacted to secure them.
53. This Court is, however, unable to accept the submission of the learned Senior Counsel for the petitioners in its wider form, namely, that the civil proceedings are to be disregarded altogether. Section 99 denies to the Civil Court the jurisdiction to decide questions entrusted to the tenancy authorities; it does not render the record of the civil proceedings inadmissible. The judgment and decree dated 22.07.1987, and the evidence which was led in that litigation upon the petitioner’s parentage, remain relevant material which the tenancy authority is bound to consider, along with the rest of the evidence, in arriving at its own independent conclusion. The distinction is between treating an adjudication as conclusive, which the Joint Collector-II wrongly did, and treating it as evidence to be weighed, which he was required to do.
54. Point (i) is answered accordingly: the findings recorded in the suit for perpetual injunction do not operate as res judicata upon, and do not conclude, the question of succession to the protected tenancy; they constitute relevant material to be considered by the competent authority under the Tenancy Act in reaching its own determination. To the extent that the Joint Collector-II treated those findings as conclusive and thereby declined to enter upon the enquiry which the statute required him to make, he failed to exercise a jurisdiction vested in him by law within the meaning of Section 91(b) of the Tenancy Act.
Point (ii) – Whether Laxman Singh and Tulja Ram Singh were heirs within the Explanation to Section 40
55. This point admits of a short answer upon the respondents’ own case. It is now asserted on their behalf that Laxman Singh and Tulja Ram Singh were the sons of late Sheetal Singh, who was the brother of late T. Narayan Singh. If that be so, they were the nephews of the protected tenant. They were not his legitimate lineal descendants by blood or by adoption. The Explanation to Section 40 enumerates those two categories and no others, and prefaces the enumeration with the word “only”. Collaterals are excluded, and the exclusion is deliberate; the protected tenancy is a personal statutory protection conferred upon a cultivator, and the Legislature has confined its devolution to the tenant’s own line.
56. It follows that Laxman Singh and Tulja Ram Singh could not, in the character of heirs of late T. Narayan Singh, succeed to the protected tenancy at all; and not being successors to the protected tenancy, they could not be persons in whom ownership stood transferred under Section 38-E in that character. A certificate under Section 38-E(2) is conclusive evidence of ownership; but sub-section (2) speaks of a certificate issued to “every such protected tenant”, that is, to a person who answers the statutory description. The conclusiveness attaches to a certificate validly issued under the section; it cannot cure a want of the very jurisdictional fact upon which the power to issue it depends. A certificate issued to a person who is, ex hypothesi, outside Section 40 is issued without jurisdiction, and no amount of conclusiveness can breathe validity into it.
57. There is a further difficulty in the respondents’ position which the Joint Collector-II failed to notice, and which goes to the root of their case. The two limbs of the claim advanced on behalf of Laxman Singh and Tulja Ram Singh are mutually destructive. To claim ownership under Section 38-E as the heirs of the protected tenant is necessarily to admit that the protected tenancy of Narayan Singh subsisted and that it was that tenancy which ripened into ownership. To claim under the Sale Deed dated 09.11.1971 executed by the landholder is to assert that the landholder was competent to convey the land unencumbered by any protected tenancy. A party cannot approbate and reprobate in this fashion. The authorities below were bound to require the respondents’ predecessors to elect, and to examine which of the two inconsistent foundations, if either, was made out. Neither the Revenue Divisional Officer nor the Joint Collector-II addressed this question at all.
58. It is necessary, however, to enter one important qualification. The proposition that Laxman Singh and Tulja Ram Singh were the sons of Sheetal Singh is a proposition of fact. It is asserted by the petitioners and is, on the record as it presently stands, also the position taken on behalf of the contesting respondents before this Court; but the representation upon which the Section 38-E certificate was originally obtained was the opposite one, namely, that they were the sons of Narayan Singh. A finding upon that question of fact has never been recorded after a proper enquiry upon evidence by the competent authority. Exercising jurisdiction under Section 91, this Court cannot itself record such a finding. What this Court does hold, and holds unqualifiedly, is the proposition of law: if Laxman Singh and Tulja Ram Singh were the sons of the brother of the protected tenant, the Section 38-E certificate granted to them qua heirs of the protected tenant is void and is liable to be cancelled, and no question of limitation, delay or acquiescence can sustain it.
59. Point (ii) is answered accordingly.
Point (iii) – The effect of the Sale Deed dated 09.11.1971 and of the successive alienations
60. The respondents’ alternative case rests upon the registered Sale Deed dated 09.11.1971 executed by Smt. Prameela Devi and upon the conveyances which followed it. That case must be tested against Sections 19, 38-D and 38-E of the Tenancy Act.
61. The starting point is that a protected tenancy is not extinguished by a conveyance executed by the landholder. Section 19(1) permits termination only by a surrender made in writing, admitted by the tenant before the Tahsildar and found by him to be genuine, or by the landholder upon a ground specified in subsection (2) after six months’ notice in writing. There is nothing on the record to suggest that either course was ever adopted in respect of the protected tenancy of late T. Narayan Singh. The Hon’ble Supreme Court in B. Bal Reddy’s case (supra) has held that the interest of a protected tenant continues to be operative and subsisting so long as the protected tenancy is not validly terminated, and that even the loss of possession does not by itself terminate it; the interest devolves upon his legal heirs and representatives, who may claim restoration of possession. To the same effect is Boddam Narsimha’s case (supra), relied upon by the respondents themselves, in which it was held that a plea of adverse possession is not available against a protected tenant.
62. Next, Section 38-D forbids a sale by the landholder to a stranger except after a written notice and offer to the protected tenant and his failure or refusal to purchase. There is no material on the record to show that any such notice or offer preceded the Sale Deed dated 09.11.1971. On the law declared in B. Bal Reddy’s case (supra), such a transaction is contrary to Section 38-D.
63. Thirdly, and assuming in the respondents’ favour that the Sale Deed dated 09.11.1971 was validly executed and operative, it could at its highest convey the landholder’s own interest and no more. A vendee takes subject to the subsisting protected tenancy. That this is the statutory position is placed beyond doubt by two provisions. The second proviso to clause (b) of sub-section (7) of Section 38 declares that in the case of a purchase by any person other than the protected tenant, the rights and interests of the tenant in the leased land shall continue as before. And Section 40(4) confines the landholder “and of persons claiming under him” to forty per cent of the market value of all interests in the land, leaving sixty per cent with the protected tenant. The vendees under the 1971 instrument therefore acquired, at most, the residuary interest of the landholder, encumbered by the protected tenancy; and upon the notified date of 01.01.1973 even that residuary interest was liable to be extinguished by the vesting worked by Section 38-E(1) in favour of the protected tenant then holding the land. The successive purchasers from Laxman Singh and Tulja Ram Singh can stand in no better position than their vendors.
64. The reliance placed by the respondents upon the alleged unregistered purchase by Narayan Singh in or about 1952 does not assist them; if anything, it tells against them. An unregistered instrument of sale of immovable property of the value of one hundred rupees and upwards conveys no title, and the transaction of 1952 could not therefore have clothed Narayan Singh with ownership. What the transaction could not do, however, is to destroy his status as a protected tenant, which, once acquired, was capable of being brought to an end only in the manner prescribed by Section 19. The respondents’ argument thus proves too little and too much at once: too little, because the unregistered transaction conveyed no ownership; too much, because if it did convey ownership to Narayan Singh, the landholder had nothing left to convey to Laxman Singh and Tulja Ram Singh in 1971. It may be added that Section 50-B, which provides a machinery for the validation of certain unregistered alienations, expressly declares by sub-section (3) that such validation shall not affect a right accrued to any person under Section 37-A, Section 38 or Section 38-E.
65. Nor do the revenue entries carry the respondents to their destination. Entries in the Khasra Pahani, the Pahani and the record of rights, and the issuance of pattadar pass books and title deeds, are not documents of title. They afford evidence of possession and of the nature of enjoyment and raise a rebuttable presumption in that behalf; they do not create, transfer or extinguish rights, least of all rights which the Legislature has vested by statute and protected by a non obstante clause.
66. This is not to say that the contesting respondents are without any standing. They are purchasers under registered instruments for consideration, whose interests are directly and adversely affected by the cancellation of the Section 38-E certificate under which their vendors claimed. They were plainly entitled to be heard before any order was passed to their detriment, and their appeals under Section 90 were maintainable. What they are not entitled to is a right superior to that of their vendors, or a title free of the protected tenancy.
67. Point (iii) is answered accordingly: neither the Sale Deed dated 09.11.1971 nor the successive alienations made thereunder could confer upon the contesting respondents any right in derogation of the protected tenancy of late T. Narayan Singh or of the rights which devolved from it under Section 40 and vested under Section 38-E.
Point (iv) – The order dated 30.05.1975, the delay, and the petitioner’s status under Section 40
68. The findings recorded upon Points (i) to (iii) dispose of the respondents’ case as it was presented, but they do not by themselves establish the petitioner’s claim. The petitioner does not succeed merely because her opponents fail. She claims through Section 40, and the Explanation to that section makes her status as a legitimate lineal descendant of the protected tenant the jurisdictional fact upon which her whole claim depends. That fact she must establish.
69. Upon the record as it stands, that fact is not established, and this Court is constrained to observe that a serious inconsistency in the petitioner’s own case has never been resolved by any authority. The petitioner asserts that she is the daughter of Tulja Ram Singh and that Tulja Ram Singh was a predeceased son of late T. Narayan Singh. The respondents assert that Tulja Ram Singh, their vendor, was a son of Sheetal Singh, the brother of Narayan Singh. Whether the Tulja Ram Singh through whom the petitioner claims descent is the same Tulja Ram Singh who, with Laxman Singh, obtained the Section 38-E certificate and executed the conveyances in favour of the respondents, or a different person of the same name, is a question of identity and parentage which the record before this Court does not answer. It is a question which lies at the centre of the dispute; and until it is answered upon evidence, neither the petitioner’s claim nor the respondents’ defence can be said to rest upon a determined factual foundation.
70. The petitioners’ reliance upon the order dated 31.03.2001 of the Joint Collector cannot be accepted in the form in which it was pressed. That order was an order of remand. The observation contained in it, that the appellant’s relationship with the protected tenant was prima facie established and had not been disputed before that authority, was, in terms, a prima facie observation made for the limited purpose of setting aside the proceedings and directing a fresh enquiry. A prima facie observation in an order of remand does not attain the character of a conclusive determination, and it certainly cannot bind persons who were not parties to that proceeding. The Revenue Divisional Officer, upon remand, was required to determine the question afresh upon evidence; he was not entitled to treat it as already decided.
71. As to the order dated 30.05.1975 in File No.LRW/165/1975, the learned Senior Counsel for the respondents is right in saying that it has never been formally set aside, and it is a circumstance which the competent authority must take into account. It does not, however, operate as an absolute bar for two reasons. First, the material placed before this Court does not disclose the ground upon which that application was rejected, and an order rejecting an application for want of proof at a given point of time upon the material then available stands on a different footing from an adjudication upon the merits of status. Secondly, and more fundamentally, the question presently agitated is the validity of a Section 38-E certificate granted to persons who, if they are collaterals, were incompetent to receive it. That question may be examined by the Collector suo motu under sub-section (5) of Section 38-E and under sub-section (4) of Section 50-B, powers which are not circumscribed by the period of sixty days prescribed by Section 93 for appeals and revisions. A void certificate does not acquire validity by the passage of time.
72. Delay is, nevertheless, a relevant consideration, though not upon the lines urged. The transactions in favour of the respondents and their predecessors were entered into and acted upon over a long period, and third-party interests have intervened. These are matters which the competent authority must weigh while moulding the relief that may ultimately follow upon its findings; they are not matters which can defeat at the threshold an enquiry into the validity of a certificate granted, if the petitioners are right, upon a misrepresentation of relationship.
73. Point (iv) is answered accordingly: the petitioner’s status as a legitimate lineal descendant of late T. Narayan Singh within the meaning of the Explanation to Section 40 is neither established nor disproved upon the present record, and must be determined afresh upon evidence; the order dated 30.05.1975 is a relevant circumstance but does not bar that enquiry.
Point (v) – The sustainability of the orders under challenge, and relief
74. It remains to consider the validity of the two orders which occupy the field, and the relief to which the parties are entitled.
75. The proceedings of the Revenue Divisional Officer dated 18.02.2006 cannot be sustained. Those proceedings cancelled an ownership certificate and recognised succession in favour of the petitioner, and thereby directly and adversely affected the rights of the several persons who had by then purchased portions of the subject lands under registered conveyances. It is not in dispute that they were neither impleaded nor heard. It is equally not in dispute that Tulja Ram Singh, one of the two certificate-holders, had died before those proceedings, and there is nothing to show that his legal representatives were brought on record. An order which destroys a title and is made behind the back of those whom it destroys is contrary to the most elementary requirements of natural justice, and the statute itself insists upon compliance: the proviso to Section 38-E(5) and the proviso to Section 50-B(4) each forbid the passing of an order adversely affecting a person unless he has had an opportunity of making his representation. The Revenue Divisional Officer, in proceeding as he did, acted with material irregularity within the meaning of Section 91(c) of the Tenancy Act.
76. The common order of the Joint Collector-II dated 14.03.2008 is equally unsustainable, though for different reasons. He was right in holding that the subsequent purchasers were entitled to be heard, and to that extent his conclusion that the proceedings dated 18.02.2006 could not stand was correct. But having so held, the course open to him was to remit the matter for a fresh enquiry with notice to all concerned. Instead, he proceeded to conclude the controversy against the petitioner upon a view of the law which, for the reasons recorded upon Point (i), is erroneous: he treated a finding rendered in a suit for perpetual injunction as conclusive of a question which Section 99 of the Tenancy Act withdraws from the cognisance of the Civil Court, and upon that footing declined to enter upon the enquiry which Sections 38-E and 40 required him to make. He did not advert to Section 19, to Section 38-D, to the vesting effected by Section 38-E, or to the exhaustive character of the Explanation to Section 40. In failing to exercise the jurisdiction vested in him, he brought his order within Section 91(b).
77. This Court is conscious that the jurisdiction under Section 91 is supervisory. It is for that very reason that this Court declines the invitation of the learned Senior Counsel for the petitioners to restore the proceedings dated 18.02.2006. Those proceedings are themselves vitiated for want of notice, and to restore them would be to perpetuate the very illegality which the Joint Collector-II rightly identified. Equally, this Court declines to record findings upon the disputed questions of parentage, identity and relationship, which are questions of fact for the competent authority to determine upon evidence.
78. For completeness, it is necessary to record that the course suggested in the alternative, namely, that the parties be relegated to a competent Civil Court to have their rights, title and succession determined, would not be a lawful course. Succession to a protected tenancy under Section 40, the validity of a certificate granted under Section 38-E, and the question whether a protected tenancy was terminated in accordance with Section 19, are questions which the Tenancy Act requires to be settled, decided and dealt with by the authorities constituted under it, and Section 99 in terms denies cognisance of them to the Civil Court. To relegate the parties to a civil suit upon those questions would be to direct them to a forum which the Legislature has closed. This is not to say that the Civil Court is excluded altogether: questions lying outside the description in Section 99, such as a dispute among the heirs of a protected tenant as to their respective shares in the land which has devolved upon them, or a claim of title founded upon a source independent of the tenancy remain within its jurisdiction, and nothing in this order shall be construed as barring recourse to the Civil Court in respect of such matters.
79. The proper course, in the circumstances, is to set aside both the common order dated 14.03.2008 and the proceedings dated 18.02.2006 together with the consequential proceedings dated 14.06.2006, and to remit the matter to the competent authority for a fresh enquiry and determination in accordance with law, after notice to all persons interested. The enquiry has been pending in one form or another since 1997, and the matters relate to events reaching back to 1952; it is therefore necessary to fix a time frame and to indicate the questions which fall for determination.
80. Point (v) is answered accordingly.
CONCLUSION AND RESULT
81. For the reasons recorded above, the Civil Revision Petitions are allowed in part, and the following order is passed:
(i) The common order dated 14.03.2008 passed by the Joint Collector-II, Ranga Reddy District, in Case Nos.F2/710/2007, F2/4162/2006, F2/5651/2006 and F2/6435/2006 is set aside.
(ii) The proceedings of the Revenue Divisional Officer, Chevella Division, dated 18.02.2006 in File No.G/L/1375/2001, and the consequential proceedings dated 14.06.2006, are also set aside.
(iii) The matter is remitted to the Revenue Divisional Officer, Chevella Division, functioning as the competent authority under Section 38-E of the Tenancy Act, for a fresh enquiry and determination in accordance with law.
(iv) The competent authority shall issue notice to all persons interested, including the legal representatives of the original revision petitioner, the legal representatives of the deceased Laxman Singh and Tulja Ram Singh, and every person who claims to have purchased any portion of the subject lands under a registered conveyance, and shall afford each of them a reasonable opportunity of adducing evidence, and of being heard.
(v) The competent authority shall determine, upon the evidence so adduced, the following questions: whether the original revision petitioner was a legitimate lineal descendant of late T. Narayan Singh within the meaning of the Explanation to Section 40 of the Tenancy Act; whether Laxman Singh and Tulja Ram Singh were such legitimate lineal descendants or were the sons of Sheetal Singh, the brother of the protected tenant; whether the protected tenancy of late T. Narayan Singh was terminated in the manner prescribed by Section 19 of the Tenancy Act at any time before 01.01.1973; whether the requirements of Section 38-D were complied with before the execution of the Sale Deed dated 09.11.1971; the extent to which the statutory vesting under Section 38-E(1) could operate, having regard to the condition laid down in sub-section (7) of Section 38 and to the area of a family holding determined under Section 4 for the local area concerned; and, upon those findings, whether the ownership certificate granted under Section 38-E in favour of Laxman Singh and Tulja Ram Singh is valid or is liable to be cancelled, and in whom, and to what extent, the ownership of the subject lands stood vested upon the notified date.
(vi) The competent authority shall conduct the enquiry uninfluenced by the findings recorded in A.S.No.18 of 1986, which, for the reasons recorded in this order, do not operate as res judicata upon the questions arising under the Tenancy Act, but shall consider the record of those proceedings as relevant material along with the rest of the evidence.
(vii) The enquiry shall be completed and a reasoned order passed as expeditiously as possible, and in any event within a period of six months from the date of receipt of a copy of this order.
(viii) Pending the fresh determination, possession of the subject lands shall not be disturbed otherwise than in accordance with law, and no party shall create any third-party interest in respect of the subject lands.
(ix) Nothing in this order shall be construed as an expression of opinion upon the disputed questions of fact, which shall be determined by the competent authority upon the evidence placed before it. The rights and contentions of all parties upon those questions are left open.
82. There shall be no order as to costs.
Miscellaneous applications, if any, pending in these Civil Revision Petitions shall stand closed.
