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                                          REPORTABLE

           IN THE SUPREME COURT OF INDIA              CIVIL APPELLATE JURISDICTION

            CIVIL APPEAL NO. 5539 OF 2001

Man Mohan & Ors.                      ....Appellants

              Versus

Mohd. Mohinuddin Ali Khan (dead) by L.Rs.                              ....Respondents

                     JUDGMENT

HARJIT SINGH BEDI, J.

1.   This appeal is directed against the judgment of the

Andhra Pradesh High Court dated 17th February, 1999

whereby the plea of the appellant to re-claim the status of a

protected tenant under Section 45 of the    Andhra Pradesh

(Telangana Area) Tenancy and Agricultural Lands Act, 1950

(hereinafter referred to as "the Act") has been rejected. The

facts are as under:

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2.   Dilawar Ali Khan was the original land owner. He filed

an application under Section 44 of the Act for determination

of the protected tenancy of the predecessor in interest of the

appellants, one Ramalingam who was a protected tenant. The

said application was allowed in the year 1967, the tenancy

terminated and the land holder was put in possession thereof.

The appellants as successors of Ramalingam who died in

1973, filed an application under Sections 45 and 46 of the Act

for restoration of possession alleging that Dilawar Ali Khan

and on his death, his successors, had failed to cultivate the

land in question as contemplated by Section 45 of the Act and

they were thus, entitled to a restoration of the possession. The

said petition was resisted by the land holders and it has

claimed that after the termination of the tenancy under

Section 44 of the Act, Dilawar Ali Khan had      cultivated the

land by investing a huge amount thereon and that after his

death his heirs had cultivated the land with the assistance of

one Gopaiah and Hanumaiah by paying their wages in kind.

It was also pleaded that Ramalingam had died issueless and

that Man Mohan one of the applicants who claimed to be his

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adopted son was in fact not so and as such the application

was not maintainable. The Revenue Officer called for evidence

from both parties and after a analysis thereof allowed the

application, both on the question of maintainability and also

on facts.

3.   Aggrieved thereby, the applicants preferred an appeal

before the Joint Collector. This officer found that the

applicants were indeed the legal heirs of Ramalingam and that

Dilawar Ali Khan nor his successors had cultivated the land

after it had been restored to them on an application under

Section 44 of the Act.   The appeal was accordingly allowed.

Aggrieved thereby the land owners filed a revision petition

under Section 91 of the Act before the High Court. The court

in its judgment dated 17th February, 1999 observed that the

tenancy in the hands of Ramalingam had been terminated

under Section 44 in the year 1967 and though Ramalingam

had lived upto 1973 he had not raised any question with

regard to the cultivation by the land owners. The court also

observed that there was clear doubt as to the claim of

adoption made by Man Mohan as the dependant certificate

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which had been issued by the Revenue Officer accepting his

claim as the adopted son of the Ramalingam had no value, as

it was the civil court alone that could give such a declaration.

In conclusion, the Court observed thus:

         " I am of the opinion that there is no           evidence   to establish       that the           respondents are the legal heirs and           successors of late Ramalingam and           consequently they are not entitled to file           an application U/ss 45 and 46 of the           Act".

4.   The Court then examined the basis on which the claim

had been made and observed that from the evidence it

appeared that Dilawar Ali Khan had indeed invested huge

amounts of money for the installation of a pump and electric

motor and though admittedly he and his successors had taken

the help of Gopaiah and Hanumaiah in the cultivation of the

land a perusal of their evidence showed that they were being

paid on "Batai" basis i.e. a share of the crops and as such the

land was deemed to be under the self cultivation of the land

owners. The Court also relied for its conclusion on a

clarificatory Circular No. 650 dated 30th March, 1951, issued

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by the Board of Revenue, Hyderabad to the effect that if a land

owner and one or more persons cultivated the land jointly

sharing the expenses as well as the yield, the question of the

creation of a tenancy at will did not arise.        The High Court

accordingly set aside the order of the Joint Commissioner and

restored the order of the Revenue Officer.             It is in this

circumstance, that the tenants are before us.

5.   Mrs. K. Amareswari, the learned Senior counsel for the

tenants - appellants has argued that though Man Mohan’s

adoption by Ramalingam had been proved on record but even

assuming for the moment that his adoption had not been

proved yet, the fact that the other three claimants Erramma,

Yadaiah and Eshwaraiah           were his legal heirs was admitted

and they were accordingly entitled to maintain the application

under Sections 45 and 46 of the Act.              It has also been

submitted that as per Section 45, if the land owner did not

cultivate the land within the time fixed in the said provision,

the tenants were entitled to a restoration of the land on

an application made        for   this   purpose   and as   the   final

court   of   fact   i.e.    Joint       Commissioner   had   clearly

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opined that neither Dilawar Ali Khan nor his successors had

cultivated the land, the appellants were entitled to succeed.

6.   The learned counsel for the respondents have however

pointed out that the order of the Tahsildar granting            an

adoption certificate with respect to Man Mohan was wholly

without jurisdiction and as there was no proof as to when

Gopaiah and Hanumaiah had been engaged for cultivating the

land by Dilawar Ali Khan or his successors, the appeal was

liable to be dismissed.

7.   We have gone through the arguments advanced by the

learned counsel for the parties. We are of the opinion that we

are not really called upon to examine Man Mohan’s status as

the adopted son of Ramalingam in the light of the fact that

the application for restoration of possession filed under

Sections 45 and 46 of the Act is maintainable at the instance

of the other three claimants who are admittedly the heirs of

Ramalingam. It is true, as has been contended by the learned

counsel, that Ramalingam lived upto the year 1973 but did

not choose to make an application in terms of       Sections 45

and 46 during his life time and left it to his successors to do

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so after his death. We find from a perusal of the Act that there

appears no impediment to the maintenance of such an

application, and a perusal of Section 40 of the Act on the

contrary clarifies that the rights of protected tenants are

heritable with a few exceptions      which are of no concern in

this matter.

8.   In this background the substantive issue would be as to

whether Dilawar Ali Khan or his successors had cultivated the

land in terms of Section 45 of the Act and on a failure to do so

the consequences thereof . Section 45 and 46 are re-produced

below:

         "45. Landholder to restore possession if           he fails to cultivate within one year:- (i) If           upon the termination of tenancy under           section 44 the landholder -

              (a)   does not within one year from the                      date on which he resumed                      possession of the land, or

              (b)   having      commenced         such                      discontinues the same within ten                      years of the said date, he shall                      forthwith restore possession of the                      land to the tenant whose tenancy                      was terminated by him unless he                      has obtained from the tenant his                      refusal in writing to accept the

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

    (2)      After the tenant has recovered            possession of the land under sub            section (1) he shall, subject to the            provisions of this Act, hold the same            on the terms and conditions on which            he held it immediately before the            termination of his tenancy.

    (3)     If the land holder fails to restore            possession of the land to the tenant as            provided in sub section (1) he shall be            liable to pay such compensation to the            tenant as may be determined by the            Tahsildar for the loss suffered by the            tenant on account of the eviction.

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

46. Application for recovery of possession by tenant: - If at any time the tenant makes an application to the Tahsildar and satisfies him that the landholder has failed to comply within

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       a reasonable time with the provision of Section         45, the protected tenant shall be entitled on a         direction by the Tahsildar to obtain immediate         possession of the land to such compensation         as may be awarded by the Tahsildar for any         loss caused to the tenant by his eviction and         by the failure of the landholder to restore or         give possession of the land to him as required         by the said section.

9.      A bare perusal of these provisions reveals that a tenant

is entitled to the recovery of        possession in case the owner

does not cultivate the land personally or having commenced

such cultivation discontinues the same within ten years.

Section 2 (g) reads as under:

            " "To cultivate personally" means to              cultivate on one’s own account -

(i)     by one’s own labour, or

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

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

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    It appears to be the conceded position that the personal

cultivation that was allegedly carried on by Dilawar Ali Khan

and his successors does not fall under sub clause (i) or (ii) and

the dispute pertains to the cultivation envisaged under sub

clause (iii).   It is the case of the land owners that they had

been cultivating the land through Gopaiah and Hanumaiah

and were paying them wages in kind. Mrs. K. Amareswari, the

learned Senior counsel, has contended that from the evidence

on   record     including      the    statements     of   Gopaiah   and

Hanumaiah both recorded on 24th January, 1974 it was clear

that they had cultivated the land on behalf of Dilawar Ali Khan

on "Batai" basis i.e. on half share of the produce almost from

the date that Dilawar Ali Khan had taken possession of the

land in 1967.        It is therefore apparent that as the land was

being cultivated by these two persons by giving a share of the

crop to the landowners, it would not amount to personal

cultivation.    The clarificatory circular issued in 1951 is not

applicable      as   it   is   nobody’s   case     that   Gopaiah   and

Hanumaiah were also sharing the expenses of the cultivation.

Moreover this circular would not over ride the statutory

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provision 2(g)(iii) which was incorporated in the Act in 1961.

We, are therefore, of the opinion that the appellant must

succeed on this basis. We accordingly set aside the judgment

and order of the High Court, and restore the order of the Joint

Collector dated 16th June, 1977. No order as to costs.

                                   ................................. J.                                     (TARUN CHATTERJEE)

                                     .................................J.                                      (HARJIT SINGH BEDI) New Delhi Dated: May 9, 2008