MOHAMMED HUSSAIN Vs. GULAM KHADER KHAN
LAWS(APH)-1963-3-24
HIGH COURT OF ANDHRA PRADESH
Decided on March 18,1963

MOHAMMED HUSSAIN Appellant
VERSUS
GULAM KHADER KHAN Respondents

JUDGEMENT

Venkatesam, J. - (1.) This Revision Petition, filed under section 91 of the Hyderabad "Tenancy and Agricultural Lands Act XXI of 1950 (hereinafter called 'the Act') raises the interpretation of section 98 of the Act. The relevant facts briefly are as follows. The respondent in the Revision Petition, Ghulam Khader Khan, filed an application on 7th March, 1955 before the Deputy Collector, Tandur, under section 98 of the Act, alleging that he was the protected tenant of Survey No. 501 of Dudyal village in Kodangal taluk, that the landlord was one Mir Nazir Ali Khan, and that at his instance Bhusa Fakira and Medku Yellayya dispossessed him from the lands. He also alleged that he filed an application in the Tahsil Office to recover possession on the basis of the tenancy certificate granted to him, but that application was not disposed of, and he was out of possession ; that during the year 1955, the lands were cultivated by Mohammed Hussain (petitioner in this revision petition) and Ghulam Khader Khan was not aware in what capacity he was cultivating. As the possession of those persons is wrongful, he prayed for their eviction.
(2.) The application was resisted by Mohammed Hussain. But the Deputy Collector ordered eviction, and that order was upheld in appeal by the District Collector, Gulbarga. Against that order, this Revision Petition was filed.
(3.) Sri Palnitkar, the learned counsel for the petitioner contended that section 98 of the Act has no application to the present case, and, even if it applies, its requirements are not satisfied, and the petition should have been dismissed. In order to appreciate this contention, it is necessary to advert to the relevant provisions of the Act. Section 98 lays down as follows :- "Any person unauthorisedly occupying or wrongfully in possession of any land- (a) the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Act, or may, if the said provisions do not provide for the eviction of such person, be summarily evicted by the Collector." The contention of the respondent in the Courts below as well as before us is that, the petitioner is a person unauthorisedly occupying or wrongfully in possession of the lands under a transfer which is invalid under the provisions of this Act, viz., section 47, and, inasmuch as the eviction is claimed by the protected tenant against a person who is not the landlord, section 98 is attracted. On the other hand, the argument of Mr. Palnitkar is firstly, that the petitioner is not a person unauthorisedly occupying or wrongfully in possession of the land under an invalid transfer, and secondly, that the respondent claims to be the protected tenant having obtained a certificate to that effect, and in cases where a protected tenant has been dispossessed, the Act has made ample provision for recovery of possession Under section 32, and that in fact the respondent applied to the Tahsildar under that section, and the application was dismissed. He, therefore, contends that section 32 is the section applicable to the case, and not section 98. We find there is force in these contentions and shall consider them in their order.;


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