The Apex Court, however, added a caveat that only in exceptional situation, the Courts can permit filing of written statements beyond the period of 90 days. P.K.Balasubramanyan, J, who was a party to the judgment in Kailash (1 supra), observed in R.N.Jadi & Bros. vs. Subhashchandra2 that the Court cannot show unduly liberal approach in its anxiety to do justice and exercise its discretion to permit a party to violate even the procedural law in a routine manner. These judgments fell for review in Mohammed Yusuf vs. Faij Mohammad and others3, wherein the Supreme Court set aside the order of the High Court by which the belated application of the defendant for filing written statement was allowed, after setting aside the orders of the trial Court and the District Court. The Supreme Court, on finding that the defendant was not diligent in filing written statement, opined that the High Court should not have allowed the Writ Petition filed by the defendant and permitted him to file written statement in the absence of proper reasons putforth by him justifying the delay.

The Hon'ble Sri Justice C.V.Nagarjuna Reddy

Civil Revision Petition No.1517 of 2012

13-09-2012

Pillala Chennakesavulu

Pillala Reddikumar and another

^Counsel for the petitioner: Sri K.Venkat Rao

!Counsel for the respondents:   Sri C.Sumon

<Gist:

>Head Note:

?Cases referred:
1. (2005) 4 SCC 480
2. (2007) 6 SCC 420
3. (2009) 3 SCC 513

Order:
        This Civil Revision Petition is filed against Order, dated
15-09-2011, in IA.No.93 of 2011 in OS.No.18 of 2007, on the file of the Court of
the learned Senior Civil Judge, Kadiri.
I have heard Mr.K.Venkat Rao, learned Counsel for the petitioner, and
Mr.C.Sumon, learned Counsel for the respondents.
The respondents have filed the abovementioned suit for partition and separate
possession of the suit schedule property.  The petitioner herein is defendant
No.2, his father is defendant No.1 and his mother is defendant No.3 in the said
suit.  As the defendants did not file written statement, they were set ex parte.
IA.No.315 of 2009 was filed on behalf of all the defendants including the
petitioner herein for setting aside the ex parte order.  The said IA was allowed
by the lower Court permitting all the defendants to file a written statement.
The parents of the petitioner i.e., defendants 1 and 3 have filed separate
written statements in December, 2007.  However, no written statement was filed
by the petitioner.  On 22-10-2010, issues were framed and the case was posted to
22-11-2010 for trial.  After filing the affidavits in lieu of chief-examination
by the plaintiff witnesses, when the case was coming up for cross-examination of
PW.1, the petitioner filed IA.No.93 of 2011 for permission to file written
statement.  This application was dismissed by the lower Court by the Order under
revision.
At the hearing, the learned Counsel for the petitioner submitted that as his
client was seriously ill, he could not file written statement when his parents
have filed separate written statements in the year 2007 and that even though a
written statement was prepared on behalf of the petitioner on 22-09-2010 itself,
by inadvertence, the same could not be filed.
The lower Court held that the reason putforth by the petitioner that he was
seriously ill was not supported by any medical evidence and that his request for
permission to file a written statement at a time when the case was posted for
cross-examination of PW.1 is highly belated and not acceptable.
Along with this Civil Revision Petition, the petitioner has filed some of the
documents purported to be the medical certificates, a perusal of which would
show that they pertain to the year 2007.  Even today, the learned Counsel for
the petitioner has placed before the Court some additional documents, which
reveal that they also pertain to the year 2007.  No medical certificates for the
subsequent period have been produced by the petitioner even now before this
Court.  Even if the medical certificates on which the petitioner is seeking to
place reliance are taken into consideration, on their face value, they only show
that he was ill in the year 2007.  As pointed out by the lower Court, if the
petitioner was really ill during the relevant period nothing could have
prevented him from filing documentary evidence in support of his illness.
Coming to the plea of the petitioner that the written statement was prepared as
far back as 22-09-2010 and that inadvertently, the same could not be filed, in
my opinion, if this plea was correct nothing could have prevented him from
filing the same in the Court atleast on 22-10-2010, when the lower Court has
framed issues and adjourned the case to 22-11-2010.
In order to prevent avoidable delays, the Parliament has amended the provisions
of Order VIII Rule 1 of the Code of Civil Procedure, 1908 (for short 'the CPC'),
by Act 22 of 2002 with effect from 01-07-2002.  As per the amended provision,
the defendant shall, within 30 days from the date of service of summons, present
the written statement of his defence.  The proviso thereto, however, gives
discretion to the Court to extend the time for a period not later than 90 days
from the date of service of summons, if it is satisfied with the reasons
assigned by the defendant for not filing the written statement within 30 days .
Even though Order VIII Rule 1 of the CPC, the abovementioned provision is
couched in mandatory terms, in Kailash vs.  Nanhku1, the Supreme Court held that
that said provision is directory in nature as, in cases where the defendants are
prevented from filing written statements for genuine reasons, it will cause
extreme hardship to them if they are not permitted to file written statements
within the stipulated time.  The Apex Court, however, added a caveat that only
in exceptional situation, the Courts can permit filing of written statements
beyond the period of 90 days.  P.K.Balasubramanyan, J, who was a party to the
judgment in Kailash (1 supra), observed in R.N.Jadi & Bros.  vs.
Subhashchandra2 that the Court cannot show unduly liberal approach in its
anxiety to do justice and exercise its discretion to permit a party to violate
even the procedural law in a routine manner.  These judgments fell for review in
Mohammed Yusuf vs.  Faij Mohammad and others3, wherein the Supreme Court set     
aside the order of the High Court by which the belated application of the
defendant for filing written statement was allowed, after setting aside the
orders of the trial Court and the District Court.  The Supreme Court, on finding
that the defendant was not diligent in filing written statement, opined that the
High Court should not have allowed the Writ Petition filed by the defendant and
permitted him to file written statement in the absence of proper reasons
putforth by him justifying the delay.
Applying the above settled law to the facts of this case, I am of the opinion
that the petitioner failed to show any diligence whatsoever in filing written
statement for a period of more than 3 years even though an opportunity was
presented to him by the lower Court in the year 2007 itself by setting aside the
ex parte order.  Interestingly, all the defendants including the petitioner
appear to be represented by a common lawyer.  Therefore, the petitioner cannot
have any excuse for not filing a written statement when his parents have filed
separate written statements in the year 2007 itself.
On the analysis as above, I do not find any jurisdictional error in the order of
the lower Court in dismissing the petitioner's application for permitting him to
file written statement after commencement of trial.
The Civil Revision Petition is, accordingly, dismissed.
As a sequel, interim order, dated 18-04-2012, is vacated and  CRPMP.No.2028 of
2012 is disposed of.
                _________________________  
(C.V.Nagarjuna Reddy, J)
Date: 13-09-2012

Copy to Copy ? whether the document sought to be relied upon by the petitioners would fit into sub-section (2) of Section 63 of the Act. The provision reads: "Secondary evidence - Secondary evidence means and includes- (1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it." - it is evident that a copy of a copy, which is mechanically reproduced from the original, can also be received as secondary evidence. However, there must be an authenticity or certification of the first copy from the original. It is only when there is no dispute about the copy generated from the original document, that a further copy generated from such undisputed copy, can be treated as secondary evidence. In the instant case, the petitioners state that the original of the document was presented before the RDO for impounding, and that the same was returned to them. There was no occasion much less necessity for the RDO to certify any copy on comparison with the original. If the copy said to have been retained by him, does not fit into the secondary evidence, another copy generated from it cannot be treated as secondary evidence. The trial Court has taken the correct view. Hence, the C.R.P. is dismissed.

THE HON'BLE MR JUSTICE L.NARASIMHA REDDY          

Civil Revision Petition No.122 of 2012
       
13.09.2012

Dangu @ Kadamenda Yellaiah and others  

Ch.Sridhar Reddy and another.

Counsel for petitioners     :  Sri V.Hari Haran

Counsel for Respondents :

<GIST:

>HEAD NOTE:  

?Cases referred

ORDER:
        The petitioners filed O.S.No.152 of 2004 in the Court of Senior Civil
Judge, Karimnagar, against the respondents, for the relief of declaration of
title and perpetual injunction, in respect of the suit schedule property.  They
placed reliance upon an unregistered sale deed, dated 08.06.1959, said to have
been executed by one Mr.Gulam Rasool.  The trial of the suit commenced.  The
petitioners intended to file a Photostat copy of the unregistered deed, dated
08.06.1959.  According to them, the original of that document was presented for
impounding before the Revenue Divisional Officer, Kadapa, (RDO), and after the
document was impounded, it was lost in the year 2000.  It was pleaded that the
Office of the RDO, kept a Photostat copy of the original and on an application
filed by them, he issued a certified copy of the document available with him.
The same was sought to be filed as secondary evidence by filing I.A.No.255 of
2009, under Section 63 of the Indian Evidence Act, 1872 (for short 'the Act').
The application was opposed by the respondents.   They have pleaded that there
is nothing on record to disclose that the RDO impounded the original document,
and at any rate, even the original cannot be received in evidence, since it was
not registered.  The trial Court dismissed the I.A., through order, dated
18.07.2011.  Hence, this revision petition.

        Sri V. Hari Haran, learned counsel for the petitioners, submits that the
certified copy of the unregistered document, dated 08.06.1959, fits into the
definition 'secondary evidence', under sub-section (2) of Section 63 of the Act.
He contends that when the original document was presented before the RDO for
impounding, he kept a Xerox copy thereof, for the purpose of record and since
the original was lost by the petitioners, a certified copy of the copy,
available with the RDO was furnished.  He further submits that the view taken by
the trial Court that even the original of the unregistered document cannot be
received, cannot be countenanced, since even the unregistered document can be
taken on record for collateral purposes.

        The petitioners intended to adduce secondary evidence, of an unregistered
sale deed, dated 08.06.1959.  It is a certified copy of a copy of an
unregistered sale deed. Two aspects assume significance, in this regard.  The
first is whether the said document, even if filed in original would have been
admissible in evidence? (had it been available).  The second is whether the
document presented by the petitioners can be treated as secondary evidence?

        The suit is filed for the relief of declaration of title and perpetual
injunction.  The document sought to be filed is an unregistered sale deed.  It
is not in dispute that a sale deed in respect of immovable property is required
to be registered, under the Transfer of Property Act, 1882.  Section 49 of the
Registration Act deals with the effect of non-registration of documents, which
are required to be registered.   It mandates that such unregistered document
cannot be received in evidence.  Its proviso carved out an exception to the
effect that such documents can be received in evidence, for collateral purposes.

        The purpose can be said to be collateral, when it is other than the one,
which the document purports to deal with.  If the document is an unregistered
sale deed, any purpose other than the one which relates to establishment of
title to the property can be treated as collateral.  In a suit for declaration
of title, to an item of immovable property, an unregistered sale deed, in
relation thereto, cannot be received in evidence, even for collateral purposes.
The party, who intends to rely upon it, cannot plead that he would use it only
for other purposes.

        The second aspect is as to whether the document sought to be relied upon
by the petitioners would fit into sub-section (2) of Section 63 of the Act.  The
provision reads:

        "Secondary evidence - Secondary evidence means and includes-  
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves
ensure the accuracy of the copy, and copies compared with such copies; 
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has
himself seen it."

        From a perusal of this, it is evident that a copy of a copy, which is
mechanically reproduced from the original, can also be received as secondary
evidence.  However, there must be an authenticity or certification of the first
copy from the original.  It is only when there is no dispute about the copy
generated from the original document, that a further copy generated from such
undisputed copy, can be treated as secondary evidence.  In the instant case, the
petitioners state that the original of the document was presented before the RDO
for impounding, and that the same was returned to them.  There was no occasion
much less necessity for the RDO to certify any copy on comparison with the
original.  If the copy said to have been retained by him, does not fit into the
secondary evidence, another copy generated from it cannot be treated as
secondary evidence.  The trial Court has taken the correct view.

        Hence, the C.R.P. is dismissed.

        The miscellaneous petition filed in this writ petition shall also stand
disposed of.

        There shall be no order as to costs.
____________________  
L.NARASIMHA REDDY, J.    
Dated:13.09.2012

A.P. (Andhra Area) Tenancy Act, 1956,The first is title to the land and the second is existence of relationship of landlady and tenant. - Once the title of a person over a piece of land is upheld, he is entitled to recover the possession thereof, if it is in the hands of third parties. If the person in possession is a tenant, his eviction can be sought just by issuing notice under Section 106 of the Transfer of Property Act. However, if the tenancy is governed by the A.P. (Andhra Area) Tenancy Act, 1956, different legal consequences ensue. It confers certain benefits upon the tenants. It is only when the default is committed in payment of rents, that the tenant would become liable to be evicted.-The petitioners are admittedly in possession of the land and the title of the respondent in respect of the said land was accepted by the Special Officer on the basis of the oral and documentary evidence. Once the title is established, the petitioners, being the persons without any title were under obligation to state the nature and character of their possession. One plea raised by them was that the subject matter is an inam land and they are in possession and enjoyment of the same. Even if that were to be true, they did not take any steps to get ryotwari pattas. Though absence of such steps cannot by itself lead to an inference that they are tenants, the plea raised by the respondent that rajabhagam i.e. the rent was being paid till the year 1984 to her mother and thereafter, the petitioners stopped it was not refuted effectively. Further, the petitioners did not adduce any documentary evidence to substantiate the nature of possession otherwise than in the capacity of the tenants. The Appellate Court has applied the correct principles of appreciation of evidence and held that an inference must be drawn as to the existence of relationship of landlady and tenant. This Court is not inclined to interfere with the finding, particularly when the appellate forum happens to be a last Court on facts, under the enactment. Hence, the civil revision petitions are dismissed.

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

CRP Nos.219 of 2012 and Batch

13.09.2012

CRP No.219 of 2012
P. Dharma Rao

Sunkari Indira Das

Counsel for the Petitioners: Sri V.L.N.G.K. Murthy

Counsel for the Respondent: Sri K.V. Simhadri

<Gist

>Head Note

?Citations

CRP Nos.219, 220, 221, 222, 223, 235 and 236 of 2012

C.R.P. No.220 of 2012
G.Vasidevarao..Petitioner
Sunkari Indira DasRespondent

C.R.P. No.221 of 2012

B. Appala Swamy     Petitioner
Sunkari Indira Das ..Respondent

C.R.P. No.222 of 2012

K.Appanna Petitioner
Sunkari Indira Das  Respondent

C.R.P. No.223 of 2012

T. Kannayya   Petitioner
Sunkari Indira Das  .. Respondent

C.R.P. No.235 of 2012
P. Bhaghayam and another  Petitioners
Sunkari Indira Das   Respondent

C.R.P. No.236 of 2012
P. Basavayya  . Petitioner
Sunkari Indira Das  .. Respondent


COMMON ORDER:    


In all these revisions, the challenge is to the orders passed by the District
Judge & Appellate Tribunal under A.P. (Andhra Area) Tenancy Act, 1956,
Srikakulam in the appeals filed by the landholder, the respondent herein.

The sole respondent in all these revisions filed A.T.C.No.2 of 2009 and batch
before the Junior Civil Judge-cum-Special Officer, Tekkali pleading that the
respective petitioners herein were inducted as tenants in different bits of land
held by her mother and they refused to pay the rents even during the life time
of her mother.  It was also pleaded that several litigations persisted about the
land among the family members and when she demanded rents, the petitioners did
not pay the same and thereby, committed default. The petitioners filed counters
denying the very title of the respondent.  The Special Officer upheld the title
of the respondent herein in respect of bits of land.  However, it dismissed the
A.T.Cs., through separate orders, dated 14.06.2004, observing that though the
respondent proved her title over the land, she failed to prove the existence of
relationship of landlady and tenant.
The respondent filed A.T.A.No.6 of 2004 and batch before the Appellate Tribunal.
The appeals were allowed through separate orders, dated 26.09.2011. It was held
that since the petitioners were paying the rent (rajabhagam) to the mother of
the respondent, the tenancy stood established and on account of the failure to
deposit the rents regularly, they incurred the liability to be evicted.  The
said orders are challenged in this batch of revisions.

Sri V.L.N.G.K.Murthy, learned counsel for the petitioners, submits that the
respondent has not even specified the quantum of rent and it is just un-
understandable as to how the plea as to default of payment of rent can be said
to have been established.  He submits that the enormous delay in filing the
petitions for eviction itself would disclose that the respondent was in doubt as
to her rights over the land.  Other grounds are also urged.

Sri K.V.Simhadri, learned counsel for the respondent, on the other hand, submits
that the delay in filing the petitions for eviction was caused on account of
series of litigations that ensued among the family members and soon after the
disputes were resolved, she filed the petitions for eviction.  He submits that
the petitioners did not dispute that they are the tenants of the mother of the
respondent and once the original landlady died, the respondent has succeeded to
her rights. He further submits that the petitioners did not pay or tender rents
to anyone even while admitting the fact that they are the tenants in respect of
the land.

Before the Special Officer, the respondent deposed as P.W.1 and on her behalf,
P.W.2 was also examined.  Exs.A1 to A10 were filed.  Ex.A1 is the certified copy
of the title deed and Ex.A2 is the pattadar pass book issued by the Tahsildar in
respect of the said land. Exs.A3 to A7 are receipts of land revenue, and Ex.A8
is the Will executed by the mother of the respondent in her favour.  The
judgment in O.S.No.38 of 1990 was filed as Ex.A9, and Ex.A10 is the death
certificate of the mother of the respondent.  Except that the respective
petitioners deposed as R.W.1, they did not adduce any other oral evidence, much
less did they adduce any documentary evidence.

As mentioned earlier, the Special Officer dismissed the petitions for eviction
on the ground that the respondent failed to establish the relationship of
landlady and tenant even while upholding her title to the land.  The Appellate
Tribunal, however, reversed that finding and directed eviction of the
petitioners.

Two aspects assume significance in matters of this nature.  The first is title
to the land and the second is existence of relationship of landlady and tenant.
In the petitions for eviction filed by the respondent, the Special Officer held
that the respondent proved her title to the land.  The petitioners did not
challenge that finding.

Once the title of a person over a piece of land is upheld, he is entitled to
recover the possession thereof, if it is in the hands of third parties. If the
person in possession is a tenant, his eviction can be sought just by issuing
notice under Section 106 of the Transfer of Property Act.  However, if the
tenancy is governed by  the A.P. (Andhra Area) Tenancy Act, 1956, different
legal consequences ensue. It confers certain benefits upon the tenants.  It is
only when the default is committed in payment of rents, that the tenant would
become liable to be evicted.

 The petitioners are admittedly in possession of the land and the title of the
respondent in respect of the said land was accepted by the Special Officer on
the basis of the oral and documentary evidence. Once the title is established,
the petitioners, being the persons without any title were under obligation to
state the nature and character of their possession.  One plea raised by them was
that the subject matter is an inam land and they are in possession and enjoyment
of the same.  Even if that were to be true, they did not take any steps to get
ryotwari pattas.  Though absence of such steps cannot by itself lead to an
inference that they are tenants, the plea raised by the respondent that
rajabhagam i.e. the rent was being paid till the year 1984 to her mother and
thereafter, the petitioners stopped it was not refuted effectively.  Further,
the petitioners did not adduce any documentary evidence to substantiate the
nature of possession otherwise than in the capacity of the tenants.  The
Appellate Court has applied the correct principles of appreciation of evidence
and held that an inference must be drawn as to the existence of relationship of
landlady and tenant.  This Court is not inclined to interfere with the finding,
particularly when the appellate forum happens to be a last Court on facts, under
the enactment.

Hence, the civil revision petitions are dismissed.

The learned counsel for the petitioners submits that his clients may be given
reasonable time to vacate the land.  This request is opposed by the learned
counsel for the respondent.
Having regard to the facts and circumstances of the case, the petitioners are
granted time till 31.01.2013, subject to the condition that:
(a) they shall file an affidavit within four weeks from today before the Special
Officer to the effect that they will put the respondent in possession of the
respective bits of land on or before 31.01.2013; and
(b) they shall clear the arrears of rent payable up to date within four weeks
from today.
There shall be no order as to costs.

The miscellaneous petitions filed in these revisions also stand disposed of.
______________________  
L.NARASIMHA REDDY, J.  
Dated:13.09.2012

Once a ownership certificate is issued under Section 38E of the Act, the plea of alleged oral surrender of tenancy rights would have been relevant, only if an appeal was filed against the order granting ownership certificate under Section 38E of the Act,- after the grant of Section 38E certificate, the petitioners' possession was restored by the Revenue Inspector under panchanama on 06.06.1978. In my opinion, once the tenants, in whose favour ownership certificate has been issued under Section 38E of the Act, have been put in possession of the property, they cannot approach the Tahsildar again and again for restoration of possession whenever they are dispossessed for, they no longer continue to be under protection of the provisions of the Act as they have evolved into full-fledged owners with the issuance of the ownership certificate under Section 38E of the Act. If they are subsequently dispossessed, they can only approach the competent civil Court by way of a suit.

The Hon'ble Sri Justice C.V.Nagarjuna Reddy

Civil Revision Petition No.1520 of 2012

13-09-2012

Ramulu and others

Smt. Sumitra Bai (died) and others


Counsel for the petitioners     : Mr. V.H.V.R.R. Swamy 

Counsel for the respondents     : Mr. P. Laxma Reddy

<GIST:

>HEAD NOTE:   

?CASES REFERRED:     
1. 1978 (1)  ALT 508
2. 1997 (1) ALT 627

Order:
This Civil Revision Petition is third in succession in respect of a dispute
between the same parties.
One Mr. Basaiah, who is the father of petitioner Nos.1 to 4, was the protected
tenant in respect of Acs.3.29 guntas of land in Survey No.121 situated at
Madharam Village of Pargi Mandal. After his demise, ownership certificate under
Section 38E of the Andhra Pradesh (Telangana Area) Tenancy & Agricultural Lands
Act, 1950 (for short "the Act") was granted to the petitioners herein who
claimed through the said Basaiah by the Mandal Revenue Officer, Pargi. The
petitioners approached the Mandal Revenue Officer, Pargi for putting them in
possession in respect of the said land. By order dated 15.05.1987, the Mandal
Revenue Officer has directed the petitioners to be in possession. This order was
questioned by the respondents, who are the original land owners, in an appeal
filed under Section 90 of the Act before the learned Joint Collector, Ranga
Reddy District. The said appeal was allowed by order dated 05.05.1990 mainly
relying upon the alleged surrender of tenancy rights by the father of petitioner
Nos.1 to 4 orally prior to 1953. The petitioners filed C.R.P.No.2024 of 1990
before this Court questioning the said order. The said C.R.P. was allowed by
order dated 26.06.1995 and the case was remanded to the learned Joint Collector
with a direction to him to consider the case of the petitioners that the tenancy
rights were not surrendered by Basaiah. After remand, the learned Joint
Collector dismissed the appeal by order dated 23.10.2000. Feeling aggrieved by
the said order, the respondents have filed C.R.P.No.5756 of 2000. The said
C.R.P. was allowed by this Court by order dated 18.03.2010 and the case was
again remanded to the learned Joint Collector on the ground that while disposing
of the appeal, he has not dealt with the question on which the case was remanded
by this Court while disposing of C.R.P.No.2024 of 1990. After remand, the
learned Joint Collector has passed order dated 07.03.2012 whereunder the
petitioners were relegated to the civil Court by filing a suit for recovery of
possession. Feeling aggrieved thereby, the petitioners filed the present civil
revision petition.

I have heard Mr. V.H.V.R.R. Swamy, learned counsel for the petitioners, and Mr.
P. Laxma Reddy, learned counsel for the respondents.

The fact, which is undisputed, is that the petitioners were given ownership
certificate under Section 38E of the Act in recognition of the protected tenancy
rights of their predecessor in title, namely, Basaiah. The order dated
05.05.1990 of the learned Joint Collector allowing the appeal filed by the
respondents proceeded on the premise that the tenancy rights were surrendered by
the father of  petitioner Nos.1 to 4 and that the same was accepted by some of
the petitioners herein who were defendant Nos.2 to 6 in the written statement in
O.S.No.16 of 1978 on the file of the learned District Munsiff, Pargi filed by
the original land owner Manik Prabhu. In C.R.P.No.2024 of 1990, this Court has
observed that the pleading in the written statement relating to the purported
surrender was not of the petitioners but of somebody else. In the light of this
submission, this Court has directed the learned Joint Collector to re-examine
this aspect and, accordingly, remanded the case. After remand, the learned Joint
Collector has dismissed the appeal filed by the respondents. The plea raised by
the respondents regarding the oral surrender was dealt with by the learned Joint
Collector in his order dated 07.03.2012 as under:

"In this regard, as per the written statement the tenancy rights were
surrendered in the year 1953 itself. The respondents contend that their
predecessor-in-title never surrendered their protected tenancy rights and
another written statement was filed in the suit. But, the parties not produced
any relevant documents as per their contention."

As noted above, the respondents filed C.R.P.No.5756 of 2000 against the said
order dated 23.10.2000 of the learned Joint Collector. This Court has disposed
of the said C.R.P. and opined that while considering the appeal, the learned
Joint Collector has proceeded entirely on a different ground without adverting
to the aspect relating to the surrender of tenancy rights pleaded by the
respondents, as directed by this Court in C.R.P.No.2024 of 1990. After remand,
while disposing of the appeal, the learned Joint Collector observed that as per
the written statement filed in O.S.No.16 of 1978, the surrender of tenancy
rights was accepted and that the petitioners failed to file any written
statement in which such surrender was denied. However, the learned Joint
Collector has left the option open to the petitioners to file a suit for
recovery of possession, as, since they have become the owners consequent on
obtaining Section 38E certificate, their remedy lies in filing a civil suit for
recovery of possession.

At the hearing, the learned counsel for the petitioner placed before the Court a
photo copy of certified copy of the written statement filed by the petitioners
herein in O.S.No.16 of 1978. It is inter alia averred in the said written
statement that the ownership certificate was already issued under Section 38B
(Sic.E). In paragraph 4, it is inter alia averred as under:

"That as regards the para 3 of the plaint it is submitted that it is a fact that
the defendant No.1 and the father of the defendant No.2 to 6 were joint
protected tenants over the suit land and the other allegations and statement
made there in the para are incorrect and so denied. It is false to say that the
defendant No.1 and the father of the defendant No.2 to 6 surrendered their
rights of tenancy and left the suit land in favour of the plaintiff's father in
1953 and it is also equally false to say that since the plaintiff's father and
after his death in the year 1960 the plaintiff personally cultivated the suit
land and that he (plaintiff) us cultivating the suit land. It is false to say
that Basaiah and Shantappa never cultivated the suit land after the year 1953
and their right of tenancy is ceased and that defendants never claimed any
tenancy rights. The fact is that the defendant No.1 is colluded with the
plaintiff to put the defendant No.2 to 6 into loss and deprive these defendants
from the suit land. The plaintiff is indebted to the defendant No.1. Apart from
the above the defendant No.1 is in inimical terms with the defendant No.2 to 6
as he has filed another suit vide O.S.No.25 of 1978 against these defendant No.2
to 6 on the file of this Hon'ble Court which is pending. These defendants are
vehemently contending the above suit and so he bore grudge against them."
(Emphasis added) 


The underlined part of the extract of the written statement is added in
manuscript as obviously they were omitted while preparing the certified copy by
the staff of the lower Court. If we omit this part, there may be a scope for
contending that defendant Nos.2 to 6 admitted surrender of protected tenancy
rights by their father. But if we exclude this part, the sentence would be
incohesive and would not convey proper meaning. I am, therefore, fully convinced
that the emphasized portion in the above extracted part of the written statement
was initially omitted by inadvertence and is very much part of the written
statement.

Thus, in paragraph 4 of the written statement, defendant Nos.2 to 6 have denied
in unequivocal terms  the alleged surrender. Obviously, defendant No.1, who
filed a separate written statement, has accepted the plaintiff's plea of oral
surrender of the tenancy rights. It is significant to note that in paragraph 4
of the written statement, the petitioners herein have alleged collusion between
defendant No.1 and the plaintiff in order to cause loss to their interests by
depriving them of the land. In paragraph 5 of the written statement, the
petitioners asserted their right and possession over the land in respect of
which Section 38E certificate was issued. Unfortunately, a copy of this written
statement did not appear to have been produced before the learned Joint
Collector. In ordinary course, this Court would have remanded the case to the
learned Joint Collector. But, considering the fact that this case was remanded
twice earlier and the dispute is pending for the last 25 years,
I refrain from doing so.

Even otherwise, on the facts of this case, the alleged surrender of tenancy
rights by the petitioners' father has no relevance. Once a ownership certificate
is issued under Section 38E of the Act, the plea of alleged oral surrender of
tenancy rights would have been relevant, only if an appeal was filed against the
order granting ownership certificate under Section 38E of the Act, as rightly
observed by the learned Joint Collector in his order dated 23.10.2000. It is not
the pleaded case of the respondents that either they or their predecessors have
filed any appeal against the order granting ownership certificate under Section
38E of the Act in favour of the petitioners. As on the date the ownership
certificate is in force in favour of the petitioners. In this view of the
matter, the observations of the learned Joint Collector in the impugned order
that the petitioners have not produced any relevant documents to support their
plea of non-surrender of protected tenancy rights are of no consequence as there
can be no dispute over the petitioners' right of ownership over Ac.1.34 1/2
guntas.

The only other question, which requires to be considered, is whether the
petitioners are entitled to recovery of possession. The learned counsel for the
petitioners placed reliance on the proviso to Section 38E(2) of the Act which
reads as under:

"Provided that where the land, the ownership of which has been transferred to
the protected tenant under sub-section (1), is in the occupation of a person
other than the protected tenant or holder of the certificate issued under this
sub-section, it shall be lawful for the Tahsildar to restore the possession of
the said land to the protected tenant or holder of the certificate, after giving
notice of eviction to the occupant thereof, in the prescribed manner."

The learned counsel for the respondents relied on a Division Bench Judgment of
this Court in Chinnaboini Narsaiah and others Vs. The Tahsildar, Mahabubabad,
Warangal District and others1 and submitted that when once the ownership rights
are conferred on a protected tenant, the Tahsildar cannot order restoration of
possession, as the tenant became the owner of the property and that he can no
longer seek protection under the provisions of the Act. A perusal of this
judgment shows that the same was rendered prior to the amendment to Section 38E 
of the Act by Act 2 of 1979 which introduced the above re-produced proviso.
Therefore, the said judgment has no relevance to the present case.

However, the question that remains to be considered is, whether on the facts of
this case, the petitioners are entitled to restoration of possession. In
paragraph 5 of the written statement filed in O.S.No.16 of 1978, the petitioners
averred as under:
"That as regards the para 4 of the plaint it is submitted that the R.D.O.
Vikarabad has rightly issued ownership certificate u/s 38E in favour of the
defendants and so the allegation and statement made in the para are false and so
denied. It is submitted that the defendants are in actual possession and
enjoyment of the suit land, therefore the suit for injunction is not
maintainable as the plaintiff is not in possession of the suit land on the date
of filing the suit and also prior and after. D.2 to D.6 were dispossessed in
1977 and so D.2 to D.6 were not in possession of the suit land  again by R.I.
under panchanama on 6.6.1978. Since then the defendants are in possession and  
enjoyment of the suit land."


From the above-mentioned averments, it is clear that after the grant of Section
38E certificate, the petitioners' possession was restored by the Revenue
Inspector under panchanama on 06.06.1978. In my opinion, once the tenants, in
whose favour ownership certificate has been issued under Section 38E of the Act,
have been put in possession of the property, they cannot approach the Tahsildar
again and again for restoration of possession whenever they are dispossessed
for, they no longer continue to be under protection of the provisions of the Act
as they have evolved into full-fledged owners with the issuance of the ownership
certificate under Section 38E of the Act. If they are subsequently dispossessed,
they can only approach the competent civil Court by way of a suit. This view of
mine is fortified by the judgment of this Court in Jupudi Bhushanam Vs. Joint
Collector, Khammam and others2. 

In the light of the above discussion, I am in agreement with the conclusion
arrived at by the learned Joint Collector in the impugned order though for
different reasons. The petitioners having become owners of the property are
entitled to seek restoration of their possession as owners thereof through a
civil Court. Accordingly, while holding that the petitioners are the owners of
the property to the extent of Ac.1.34 1/2 guntas, they are permitted to file a
civil suit for recovery of their possession, in accordance with law.

The Civil Revision Petition is, accordingly, allowed to the extent indicated
above.

As a sequel to allowing the civil revision petition, C.R.P.M.P.No.2030 of 2012
is disposed of as infructuous.

__________________________   
(C.V.Nagarjuna Reddy, J)
13th September, 2012