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

- **Citation:** [2008] 8 S.C.R. 108
- **Court:** Supreme Court of India
- **Decided:** 2008-05-09
- **Case number:** Civil Appeal No. 5539 Of 2001
- **Bench:** Tarun Chatterjee, Harjit Singh Bedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/man-mohan-ors-v-mohd-mohinuddin-ali-khan-dead-by-l-rs-24685
- **Pages:** 9

## Headnote

Andhra Pradesh (Telengana Area) Tenancy and Agricultural Lands Act, 1950; Ss. 2(g}, 40, 44, 45 & 46 and clarificatory
C circular No. 650 dated March 30, 1951 issued by the Board of
Revenue:
Agricultural tenancy/protected tenancy - Eviction Petition - Allowed by the Authority - Application for restoration of
D tenancy - Rejected by the Authorities - Appeal against allowed by Appellate Authority - Revision Petition - Allowed by
High Court doubting the claim of 'the appellant as adopted
son of original tenant holding that the original land owner and
his successor continue to cultivate the land in question after
E getting back possession thereof - Correctness of - Held: Incorrect - There is no impediment to the maintenance of Application for Restoration of Protected Tenancy as right of protected tenants are heritable with a few exceptions, which are of
no concern in the instant case - A tenant is entitled to recovery of possession in case owner does not cultivate the land
F personally/discontinue the same after getting back the possession - Cultivation of the land by the land owner/successor,
with the help of two persons by giving them share of crop, would
not amount to personal cultivation in terms of s. 2(g) of the Act
- In the facts and circumstances of the case, clarificatory CirG cular issued by the Board of Revenue not applicable - Moreover the Circular would not override the statutory provisions ul
s. 2(g) of the Act - Agricultural tenancy - Protected tenants.
An application was filed by the original land owner
H
108
MAN MOHAN & ORS. v.
109
MOHD. MOHINUDDIN ALI KHAN (DEAD) BY L.RS.
under Section 44 of the Andhra Pradesh (Telengana Area) A
Tenancy and Agricultural Lands Act for determination of
the protected tenancy of the predecessor of interest of
the appellants, tenants. The application was allowed by
the Authorities. Appellants, successors of the said tenant, filed an application u/ss.45 and 46 of the Act for resB
toration of possession of the land on ground that the original land owner or his successor had failed to cultivate
the land in question. The application was rejected by the
Authorities. The appeal preferred thereagainst by the
successor of the original tenant was allowed by the Ap- c
pellate Authority. The land owners field a Revision petition before the High Court, which was allowed by the High
Court relying on Circular No. 650 dated March 30, 1951
issued by the State Revenue Board holding that the original landowner and after his death, his successor, with the D
help of two persons cultivated the land in question. Hence
the present appeal.
Appellant-tenants contended that though adoption
of appellant No.1 by the original tenant had been proved
on record but even assuming for the moment that his E
adoption had not been proved yet, the fact that the other
three claimants were his legal heirs was admitted and they
were accordingly entitled to maintain the application under Sections 45 and 46 of the Act; that as per Section 45
of the Act, if the land owner did not cultivate the land within
F
the time fixed in the said provision, the tenants were entitled to a restoration of the land on an application
made for this purpose; and that as the final Court of
fact had clearly opined that neither the original owner nor
his successors had cultivated the land, the appellants were G
entitled to succeed.
--f
Respondent-landowner submitted that the order of
the Tahsildar granting an adoption certificate to appellant
No. 1 was wholly without jurisdiction; and that there was
no proof as to when the land owners had been engaged H
110
SUPREME COURT REPORTS
[2008) 8 S.C.R
A for cultivating the land by the original land owner or his
successors.
Allowing the appeal, the Court
HELD: 1.1 It is true that the original tenant of the props erty in question lived upto the year 1973 but did not
choose to make an application in terms of Sections 45
and 46 of the Andhra Pradesh (Telengana Area) Tenancy
and Agricultural Lands Act during his

## Text

A
B
[2008] 8 S.C.R 108
MAN MOHAN & ORS.
V.
MOHD. MOHINUDDIN ALI KHAN (DEAD) BY L.RS.
(Civil Appeal No. 5539 Of 2001)
MAY 9, 2008
[TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.]
Andhra Pradesh (Telengana Area) Tenancy and Agricultural Lands Act, 1950; Ss. 2(g}, 40, 44, 45 & 46 and clarificatory
C circular No. 650 dated March 30, 1951 issued by the Board of
Revenue:
Agricultural tenancy/protected tenancy - Eviction Petition - Allowed by the Authority - Application for restoration of
D tenancy - Rejected by the Authorities - Appeal against allowed by Appellate Authority - Revision Petition - Allowed by
High Court doubting the claim of 'the appellant as adopted
son of original tenant holding that the original land owner and
his successor continue to cultivate the land in question after
E getting back possession thereof - Correctness of - Held: Incorrect - There is no impediment to the maintenance of Application for Restoration of Protected Tenancy as right of protected tenants are heritable with a few exceptions, which are of
no concern in the instant case - A tenant is entitled to recovery of possession in case owner does not cultivate the land
F personally/discontinue the same after getting back the possession - Cultivation of the land by the land owner/successor,
with the help of two persons by giving them share of crop, would
not amount to personal cultivation in terms of s. 2(g) of the Act
- In the facts and circumstances of the case, clarificatory CirG cular issued by the Board of Revenue not applicable - Moreover the Circular would not override the statutory provisions ul
s. 2(g) of the Act - Agricultural tenancy - Protected tenants.
An application was filed by the original land owner
H
108
MAN MOHAN & ORS. v.
109
MOHD. MOHINUDDIN ALI KHAN (DEAD) BY L.RS.
under Section 44 of the Andhra Pradesh (Telengana Area) A
Tenancy and Agricultural Lands Act for determination of
the protected tenancy of the predecessor of interest of
the appellants, tenants. The application was allowed by
the Authorities. Appellants, successors of the said tenant, filed an application u/ss.45 and 46 of the Act for resB
toration of possession of the land on ground that the original land owner or his successor had failed to cultivate
the land in question. The application was rejected by the
Authorities. The appeal preferred thereagainst by the
successor of the original tenant was allowed by the Ap- c
pellate Authority. The land owners field a Revision petition before the High Court, which was allowed by the High
Court relying on Circular No. 650 dated March 30, 1951
issued by the State Revenue Board holding that the original landowner and after his death, his successor, with the D
help of two persons cultivated the land in question. Hence
the present appeal.
Appellant-tenants contended that though adoption
of appellant No.1 by the original tenant had been proved
on record but even assuming for the moment that his E
adoption had not been proved yet, the fact that the other
three claimants were his legal heirs was admitted and they
were accordingly entitled to maintain the application under Sections 45 and 46 of the Act; that as per Section 45
of the Act, if the land owner did not cultivate the land within
F
the time fixed in the said provision, the tenants were entitled to a restoration of the land on an application
made for this purpose; and that as the final Court of
fact had clearly opined that neither the original owner nor
his successors had cultivated the land, the appellants were G
entitled to succeed.
--f
Respondent-landowner submitted that the order of
the Tahsildar granting an adoption certificate to appellant
No. 1 was wholly without jurisdiction; and that there was
no proof as to when the land owners had been engaged H
110
SUPREME COURT REPORTS
[2008) 8 S.C.R
A for cultivating the land by the original land owner or his
successors.
Allowing the appeal, the Court
HELD: 1.1 It is true that the original tenant of the props erty in question lived upto the year 1973 but did not
choose to make an application in terms of Sections 45
and 46 of the Andhra Pradesh (Telengana Area) Tenancy
and Agricultural Lands Act during his life time and left it to
his successors to do so after his death. There is no imC pediment to the maintenance of such an application, and
a perusal of s. 40 of the Act on the cor.trary clarifies that
the rights of protected tenants are heritable with a few
exceptions which are of no concern in this matter. (Para
- 7) [114, B,C,D]
D
1.2 A bare perusal of the provisions u/ss.45 and 46 of
E
the Act reveals that a tenant is entit1ed to the recovery of
possession in case the owner does not cultivate the land
personally or having commenced such cultivation discontinues the same within ten years. (Para - 9) [115-G]
1.3 It appears to be the conceded position that the
personal cultivation that was allegedly carried on by the
original land owner and his successors does not fall under sub clause (i) or (ii) of s. 2(g) of the Act and the dispute
pertains to the cultivation envisaged under sub clause
F (iii) of s.2(g) of the Act. (Para - 9) [116-8,C]
1.4 It is apparent that as the land was being cultivated
by the two persons by giving a share of the crop to the
landowners, it would not amount to personal cultivation
G in terms of s. 2(g) of the Act. (Para - 9) [116-E]
1.5 The clarificatory circular issued by the Board of
Revenue in 1951 is not applicable as it is nobody's case
~
that the persons engaged for cultivation were also sharing the expenses of the cultivation. Moreover this circuH far would not over ride the statutory provision u/s. 2(g)(iii)
•
MAN MOHAN & ORS. v. MOHD. MOHINUDDIN
111
ALI KHAN (DEAD) BY L.RS. [HARJIT SINGH BEDI, J.]
of the Act, which was incorporated in the Act in 1961. A
Hence, the appellant must succeed on this basis. (Para -
9) [116-E,F]
CIVILAPPELLATE JURISDCTION : Civil Appeal No. 5539
of 2001
From the Judgment & Order dated 17.2.1999 of the High
Court of Judicature at Andhra Pradesh in CRP No. 2336/1997
K. Amareswari, K. Maruthi Rao, K. Radha, Rana Kamal
and Anjani Aiyagari for the Appellants.
M.N. Rao, Bhaskar Gupta, Sudha Gupta, B. Sri Ram,
Vivek Jain, A. Ramesh and Anshuman Ashok for the Respondents.
The Judgment of the Court was delivered by
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HARJIT SINGH BEDI, J. 1. This appeal is directed
'
against the judgment of the Andhra Pradesh High Court dated
171h February, 1999 whereby the plea of the appellant to reclaim the status of a protected tenant under Section 45 of the
Andhra Pradesh (Telangana Area) Tenancy and Agricultural
Lands Act, 1950 (hereinafter referred to as "the Act") has been
E
rejected. The facts are as under:
2. Dilawar Ali Khan was the original land owner. He filed
an application under Section 44 of the Act for determination of
the protected tenancy of the predecessor in interest of the apF
pellants, 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 resG
toration 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 petiH
112
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A tion was resisted by the land holders and it has claimed that
after the terminajion of the tenancy under Section 44 of the Act,
Dilawar Ali Khan had cultivated the land by investing a huge
amount thereon and that after his death his heirs had cultivated
the land with the assistance of one Gopaiah and Hanumaiah by
s paying their wages in kind. It was also pleaded that Ramalingam
had died issueless and that Man Mohan one of the applicants
who claimed to be his adopted son was in fact not so and as
such the application was not maintainable. The Revenue Officer caller:! for evidence from both parties and after a analysis
c 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
D Khan nor his successors had cultivated the land after it had been
restored to them on ?n application under Section 44 of the Act.
The appeal was accordingly allowed. Aggrieved thereby the land
owners filed a revision petition under Section 91 of the Act before the High Court. The court in its judgment dated 171h FebruE
ary, 1999 observed that the tenancy in the hands of Ramalingam
had been terminated under Section 44 in the year 1967 and
though Ramalingam had lived upto 1973 he had not raised any
question with regard to the cultivation by the land owners. The
court also observed that there was clear doubt as to the claim
F
of adoption made by Man Mohan as the dependant certificate
which had been issued by the Revenue Officer accepting his
claim as the adopted son of the Ramalingam had no value, as it
was the civil court alone that could give such a declaration_ In
conclusion, the Court observed thus:
G
H
" 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
MAN MOHAN & ORS. v. MOHD. MOHINUDDIN
113
ALI KHAN (DEAD) BY L.RS. [HARJIT SINGH BEDI, J]
had been made and observed that from the evidence it appeared
A
that Dilawar Ali Khan had indeed invested huge amounts of
money for the installation of a pump and electric motor and
though admittedly he and his successors had taken the help of
Gopaiah and Hanumaiah in the cultivation of the land a perusal
of their evidence showed that they were being paid on "Batai"
B
basis i.e. a share of the crops and as such the land was deemed
to be under the self cultivation of the land owners. The Court
also relied for its conclusion on a clarificatory Circular No. 650
dated 3Q1h March, 1951, issued by the Board of Revenue,
Hyderabad to the effect that if a land owner and one or more c
persons cultivated the land jointly sharing the expenses as well
as the yield, the question of the creation of a tenancy at will did
not arise. The High Court accordingly set aside the order of the
Joint Commissioner and restored the order of the Revenue 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
D
yet, the fact that the other three claimants Erramma, Yadaiah and
E
Eshwaraiah were his legal heirs was admitted and they were
accordingly entitled to maintain the application under Sections
45 and 46 of the Act It has also been submitted that as per
Section 45, if the land owner did not cultivate the land within the
time fixed in the said provision, the tenants were entitled to a
F
restoration of the land on an application made for this purpose
and as the final court of fact i.e. Joint Commissioner had clearly
opined that neither Dilawar Ali Khan nor his successors had cultivated the land, the appellants were entitled to succeed.
6. The learned counsel for the respondents have however G
pointed out that the order of the Tahsildar granting an adoption
certificate with respect to Man Mohan was wholly without 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 disH
A
8
c
D
E
F
G
H
114
SUPREME COURT REPORTS
[2008] 8 S. C.R.
missed.
7. We have gone through the arguments advanced by the
learned counsel for the parties. We are of the opinion that we
are not really called upon to examine Man Mohan's status as
the adopted son of Ramalingam in the light of the fact that the
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 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 tenancy on the terms and
conditions prevailing before the termination of
•
MAN MOHAN & ORS. v. MOHD. MOHINUDDIN
115
ALI KHAN (DEAD) BY L.RS. [HARJIT SINGH BEDI, J.]
the tenancy or has offered in writing to give
A
possession of the land to the tenant on the said
terms and conditions and the tenant has failed
to accept the offer within three months of the
receipt thereof:
(2)
After the tenant has recovered possession of the
8
land under sub section (1) he shall, subject to the
provisions of this Act, hold the same on the terms
and conditions on which he held it immediately
before the termination of his tenancy.
(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
c
to the tenant as may be determined by the
Tahsildar for the loss suffered by the tenant on
D
account of the eviction.
Explanation: For the purposes of this section, references
to a protected tenant shall include references to the heirs
mentioned in the Explanation to section 40.
46. Application for recovery of possession by tenant: - If E
at any time the tenant makes an application to the Tahsildar
and satisfies him that the landholder has failed to comply
within a reasonable time with the provision of Section 45,
the protected tenant shall be entitled on a direction by the
Tahsildar to obtain immediate possession of the land to
F
such compensation as may be awarded by the Tahsildar
for any loss caused to the tenant by his eviction and by the
failure of the landholder to restore or give possession of
the land to him as required by the said section.
G
9. A bare perusal of these provisions reveals that a tenant is
entitled to the recovery of possession in case the owner does not
.r cultivate the land personally or having commenced such cultivation
discontinues the same within ten years. Section 2 (g) reads as under:
" ''To cultivate personally" means to cultivate on one's own
H
116
SUPREME COURT REPORTS
(2008] 8 S.C.R.
A
accountB
(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.
•
It appears to be the conceded position that the personal
c cultivation that was allegedly carried on by Dilawar Ali Khan and
his successors does not fall under sub clause (i) or (ii) and the
dispute pertains to the cultivation envisaged under sub clause
(iii). It is the case of the land owners that they had been cultivating the land through Gopaiah and Hanumaiah and were paying
0
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
E
i.e. on half share of the produce almost from the date that Dilawar
Ali Khan had taken possession of the land in 1967. It is 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
F that Gopaiah and Hanumaiah were also sharing the expenses
of the cultivation. Moreover this circular would not over ride the
statutory provision 2(g)(iii) which was incorporated in the Act in
1961. We, are therefore, of the opinion that the appellant must
succeed on this basis. We accordingly set aside the judgment
G and order of the High Court, and restore the order of the Joint
Collector dated 16th June, 1977. No order as to costs.
S.K.S.
Appeal allowed.
H