Mohd. QutubuddIn Vs. Aziz Khan and anr. - Court Judgment

Excerpt:
property - protected tenancy - sections 47, 48 and 50-b of andhra pradesh (telangana area) tenancy and agricultural land act, 1950 - suit for possession of land against appellant - appellant challenged suit claiming himself to be protected tenant in respect of land as per lease in his favour - land sold by owner during pendency of suit - validity of sale deed challenged on ground that sanction of 'tahsildar' not obtained as required under section 47 of act - suit decreed in favour of respondents holding appellant trespasser - by the time suit was disposed of section 47 was deleted - section 47 no longer applicable - moreover appellant himself a trespasser cannot challenge validity of sale deed - held, sale deed valid and possession to be handed over to respondent. - - 76 of 1965 on the file of the court ofthe i additional chief judge, city civil court, hyderabad and the said appealwas allowed by judgment and decree dated 16.9.1965 to the extent of protectinghis possession as he is in possession of the property and further holding thatas he failed to prove that he is a protected tenant, he is only atrespasser. as these provisions underwent severalchanges, we would like to refer the purport of these two provisions. under the proviso to section 48,this requirement was dispensed with in the case of an alienor, who is not anagriculturist or intends to give up the profession of agriculture or alienatingthe whole of the land in his possession or transferring the land for good andsufficient reasons retaining a basic holding or the area of the land held bythe alienee or transferee after alienation or transfer would exceed three timesthe family holding so determined after excluding the land held by him, which isin possession of a protected tenant and relinquishes his right of resumption ofland owned by him for his personal cultivation. in that petition, the plaintiffs filedan application seeking permission of the revenue divisional officer to getthemselves impleaded as party respondents and the same was allowed on 5.7.1965and the defendant was directed to amend the petition before 16.8.1965. asthe defendant failed to amend the petition, the revenue divisional officerdismissed the petition and the defendant carried the matter in appeal to thejoint collector who allowed the same by order dated 10.1.1967 directing therevenue divisional officer to give an opportunity to the petitioner to amendthe plaint and proceed with the case. 21. now we have to consider the effect of deletion ofsection 47 from the statute in the light of observations made in the judgmentsreferred supra as well as other decisions which were cited by the counsel forthe plaintiff. , section 74 of themadhya bharat land revenue and tenancy act, 1950 wherein the land could not besold to an alienee, not being an agriculturist, without sanction of the stategovernment, held that though there was no condition in the contract that thesanction as required under section 74 could be obtained, it must be impliedthat the transferor will obtain the sanction of the authority concerned sinceit is a well settled proposition that where by a statute, property was nottransferable without the permission of the authority, the agreement to transferthe property must be deemed subject to implied condition that the transferorwill obtain the sanction from the authority concerned. from what we have statedabove, it follows that the argument of any vested right in the defendant beingtaken away does not hold good; it is now well settled that 'repeal'connotes abrogation or obliteration of one statute by another, from the statutebook as completely as if it had never been passed';when an act isrepealed, it must be considered (except as to transactions past andclosed) as if it had never existed'.(per tindal, c. 468 and490). broadly speaking, the principal object of a repealing and amending act isto 'excise dead matter, prune off superfluities and reject clearly inconsistentenactments' see mohinder singh v. 'section 47 and other connected provisions of the main act have beenomitted with the result that no sanction is at all necessary before confirmingthe sale in favour of the auction purchaser'.31. in a well considered judgment in s. rama rao (26 infra).admittedly, the jangaiah's case (25 infra) relates to the rights of a protectedtenant and as observed from the preamble of the act, it is clear that section47 is intended mainly i) to see that agrarian reforms that are in theoffing are not defeated by unscrupulous landlords, ii) to protect the interestsof the protected tenants and iii) to see that unscrupulous protected tenantsmay not knock away the properties of landlords by dubious methods. now the law is well settled withregard to the position of a trespasser. - no court can enforce as valid, that whichcompetent enactments have declared shall not be valid, nor is obedience to suchan enactment a thing from which a court can be dispensed by the consent of theparties, or by a failure to plead or to argue the point at the outset. it cannot be disputed that a person inpossession of land in the assumed character of owner and exercising peaceablythe ordinary rights of ownership has a perfectly good title against all theworld but the rightful owner. nothing in this section shall impair the right oftransferees in good faith for consideration without notice of the existence ofthe said option. ' 53. from the above decision, it is seen that thetransfer is good between the parties except to the extent that it mightconflict with the rights decreed under the decree or order. a purchaser who purchased theproperty in dispute will get no better title than what the real vendor washaving in the property. 54. assuming for a moment that the principle of resjudicata is not applicable, we would like to refer to the case-law cited by thelearned counsel on both sides with regard to the validity of the transaction. the commissioner ofexcise, air 1973 ap 333 :1970 (2) alt 186 (fb). it is true that in this case the full bench observed that inthe case of private alienations the rule is well settled that prior sanctionshould be obtained before the registration of the document, i. while considering the plea, thelearned judges made a passing observation that 'in private sales, the ruleis well settled that prior sanction should be obtained before the registrationof the document'.but to our mind that in the light of sec. from this, it is evident that if possession is delivered at the timeof the transaction and if the alienee failed to avail the opportunity ofgetting his possession validated, he has to suffer the consequences. 50-b are satisfied, the alienee ortransferee may apply to the tahsildar for a certificate declaring that his alienationor transfer was valid. 50-b was made by the legislaturewith a definite purpose and that purpose was clearly declared in the marginalnote as 'validation of certain alienations and other transfers of otheragricultural lands. it is also well settled principle that asale is complete only after execution of deed of conveyance followed bydelivery of possession. in other words, the vendee has to sail or sink with the vendor andhe cannot be placed in a better position than that of his vendor. 47 of the act, we fail to see why the plea of partperformance should not be available to the defendant. even if it is now held that the confirmationwas bad, the matter will have to go before the auction authority because theprevious proceedings cannot be held to be bad. 99. the learned counsel for the appellant also cited ajudgment of the privy council in suraj mull (9 supra), for the proposition thatno court can enforce as valid that which competent enactments have declaredshall not be valid, nor is obedience to such an enactment, a thing from which acourt can be dispensed by the consent of the parties, or by a failure to plead,or to argue the point at the outset. that plea was negatived by the common law court as well as revenue court underthe act. 131 of 1991. to bemore specific and for the sake of clarity, we would like to once again reproducethe principle stated in perry's case (18 supra), which is as under: it cannot be disputed that a person inpossession of land in the assumed character of owner and exercising peaceablythe ordinary rights of ownership has a perfectly good title against all theworld but the rightful owner. the only question to be seen now is whetherthe respondent enjoyed the property for a statutory period of twelve or moreyears as a rightful owner to the knowledge of true owners. on a consideration of this case in itsproper perspective, we are of the view that granting of amendment of plaintseeking to introduce alternative relief of mandatory injunction for payment ofspecified amount is bad in law. bajrangi singh, [1996]1scr768 ,the apexcourt observed that the amendment of the plaint, no doubt, is normally grantedand only in exceptional cases where the accrued rights are taken away byamendment of the pleading, the court would refuse the amendment, by relying onthe observations of the supreme court in laxmidas dahyabhai kabarwala v. ..but i refrain from citing furtherauthorities, as, in my opinion, they all lay down precisely the samedoctrine. to allowit would be to cause the defendant an injury which could not be compensated incosts by depriving him of a good defence to the claim. but it is well recognised thatwhere the amendment does not constitute an addition of a new cause of action,or raises a new case, but amounts to no more than adding to the facts alreadyon record, the amendment would be allowed even after the statutory period oflimitation. however, thecourt has power to take note of the subsequent events and mould the reliefaccordingly subject to the following conditions being satisfied: but in this case, thedefendant having lost the suit as well as the proceedings under the tenancy actin 1974 did not hand over the possession and for that reason the plaintiffshave to once again approach the civil court and start the litigationafresh.b.s.a. swamy, j.1. these two appeals involving commonquestions of law and facts arise out of a common judgment passed by a learnedsingle judge of this court and they can be disposed of by a common judgment.2. the parties herein are referred toas they are arrayed in the suits for the sake of convenience.3. in these two appeals, this courtis called upon to decide the effect of deletion of section 47 of the andhrapradesh (telangana area) tenancy and agricultural lands act, 1950 (act no. xxiof 1950) - hereinafter referred to as 'the tenancy act'. the main issueto be decided in these appeals is whether both the suits (o.s.nos.1001 of 1978and 1174 of 1981) filed by the plaintiffs are liable to be dismissed as thesuit transaction is hit by section 47 of the tenancy act.factual background:4. the defendant in both the suits,mohd. qutubuddin filed o.s.no.38 of 1963 on the file of the munsif magistrate(west), hyderabad against syed basharat ahmed and his wife smt. ummatulbasheera begum for permanent injunction by contending that he obtained lease ofthe suit schedule property in the year 1949 and that he was a protected tenant.5. during the pendency of the suit, smt. ummatul basheera begum wife ofsyed basharat ahmed sold the property to one smt. muneera sultana, firstplaintiff, under a registered sale deed dated 28.7.1964 (ex.a.2). by ajudgment and decree dated 30.11.1964, the said suit filed by the defendant wasdismissed holding that he was in unlawful possession and the aspect ofprotected tenancy could not be gone into by the civil court. he carriedthe matter in appeal, by filing a.s.no.76 of 1965 on the file of the court ofthe i additional chief judge, city civil court, hyderabad and the said appealwas allowed by judgment and decree dated 16.9.1965 to the extent of protectinghis possession as he is in possession of the property and further holding thatas he failed to prove that he is a protected tenant, he is only atrespasser. basharat ahmed died on 5.10.1965 after the judgment ina.s.no.76 of 1965. then the wife of basharat ahmedfiled second appeal no.320 of 1966 in this court. during the pendency ofthe second appeal, she filed c.m.p.no. 3179 of 1966 to bring on record smt.muneera sultana and her power of attorney, sri a. tuljasingh, as additionalappellants in the second appeal by stating that the land in question was soldto them and that petition was allowed. by judgment and decree dated25.3.1969 the second appeal was allowed by this court holding that thepossession of the defendant is that of a trespasser and he is not entitled toinjunction against the real owners. in the normal course, theplaintiffs would have got this decree executed and recovered possession byinitiating execution proceedings. perhaps, on legal advice, the plaintiffsrepresented by their power of attorney filed a suit in o.s.no. 2549 of 1977 onthe file of the court of the iv additional judge, city civil court, hyderabadagainst the defendant, who was declared as a trespasser in the earlierproceedings, for recovery of possession of 4000 square yards out of the totalextent of 9680 square yards bearing municipal no. 19-3-744 corresponding to oldno.134/3 situated outside gazibanda, hyderabad and for permanent injunctionrestraining the defendant from interfering with the possession of theplaintiffs over the remaining extent of 5680 square yards.subsequently, the said suit was re-numbered as o.s.no. 1001 of 1978.during the pendency of the suit, the plaintiffsfiled another suit in o.s. no. 1424 of 1978 on the file of the court ofiv assistant judge, city civil court, hyderabad against the same defendantseeking permanent injunction restraining him from cutting any trees or grass orploughing or cultivating any portion of 4000 square yards and also restrainingthe defendant from interfering with the possession of the plaintiffs over theremaining extent of 5680 square yards and the same was re-numbered as o.s. no.1174 of 1981. both the suits were clubbed together and by a commonjudgment and decree dated 19.11.1990, the trial court dismissed the suitsholding that ex.a-2 sale deed dated 28.7.1964 is void and unenforceable forwant of sanction by the tahsildar under section 47 of the tenancy act andvalidation under section 50-b of the tenancy act and no title could be conveyedby way of a void document.6. aggrieved by the said judgment anddecree, plaintiffs 2 and 3 preferred c.c.c.a.nos. 28 and 29 of 1991 before thiscourt. during the pendency of the appeals, they have also filed c.m.p.no. 20357 of 1997 in ccca.no. 29 of 1991 seeking amendment of the plaint byadding the relief of recovery of possession in respect of land measuring 5680square yards. a learned single judge of this court, by a common judgmentand decree dated 19.3.1995 allowed c.c.c.a. no.28 of 1991 by setting aside thejudgment and decree of the trial court holding that no permission of thetahsildar is required as section 47 of the tenancy act was deleted from thestatute book by the time the suit was instituted and dismissed c.c.c.a. no. 29of 1991 by confirming the judgment and decree of the trial court in o.s.no.1174 of 1981 holding that the defendant perfected his title to the property byadverse possession. the learned single judge also dismissed theapplication filed for amendment of the plaint.aggrieved by the said judgment and decree of thelearned single judge, the plaintiffs preferred l.p.a.no. 134 of 1999 and thedefendant preferred l.p.a.no. 131 of 1999 to the extent it went against theirinterests.submissions:sri m.v.s. suresh kumar, learnedcounsel appearing for the defendant strenuously contends that since thetransaction had taken place in the year 1964 at the time when section 47 of thetenancy act was on the statute book, no valid title could have been conveyed tothe plaintiffs by the owners of the suit schedule land.7. sri m. rama rao, the learned counsel for theplaintiffs, on the other hand, contends that since section 47 is deleted fromthe statute book by the time the suit was filed, the suit transaction cannot betreated as void on the ground that prior permission of the tahsildar forconveyance of the property was not obtained. both the counsel relied on severaljudgments in support of their contentions and as there was some ambiguity inthe legal position, we heard the arguments advanced by both the counsel atlength.8. before considering the contentions raised onbehalf of the parties, we are inclined to refer to the objects for which thetenancy act was enacted and also the scheme of the act along with theamendments made to the tenancy act from time to time.9. the tenancy act was brought on the statute bookwith the object of -- i) regulating the relations of landholders and tenants ofagricultural land and alienation of such land; ii) preventing the landholdersfrom sub-dividing the agricultural holdings; iii)assuming the management of the agricultural lands in certain circumstances; andiv) introducing cooperative farms.10. section 2 (o) of the tenancy act defines'permanent alienation' as to include any sale, exchange or gift andany transfer of a right of occupancy or of the patta of a holding but does notinclude any disposition by will. from this it is clear that even if a rightof occupancy is transferred, it is considered as permanent alienation.11. chapter ii of the tenancy act deals with familyholdings. chapter iii deals with tenants and their rights, the maximumrents payable by them and the circumstances under which the tenancy can be terminated. chapter iv deals with protected tenants. chapter v deals withrestrictions on transfers of agricultural land. chapter vi dealswith management or acquisition of uncultivated, improperly cultivated orsurplus lands. chapter vii deals with the provisions of fragmentation andconsolidation of holdings. chapter viii deals withcooperative farms. chapter ix deals with constitution of tribunal,procedure and powers of authorities, appeal, etc. chapter x dealswith offences and penalties. chapter xi deals with miscellaneousprovisions.12. the scheme as disclosed by the provisions of theact is to regulate the relationship between landholders and tenants and it doesnot affect the rights inter se between two persons setting up rights ofownership to a particular land or a dispute between an owner and a trespasseror a person other than a tenant. the main purpose of bringing thisenactment is to see that no landholder disposes the land without retaining theland less than the family holding and to protect the possession of theprotected tenants from the unscrupulous landholders and to see that alienationsare not made in contravention of the provisions of the act. it is also importantto note that at the time of introducing the legislation, the government inoffice was thinking of formation of cooperative farms.13. the tenancy act came into force on11.6.1950. at that time, section 47 did not find place and it wasincorporated by amendment act no. 23 of 1951. section 47 of the tenancyact read as under:'(1). notwithstanding anything contained inany other law for the time being in force or in any decree or order of a court,no permanent alienation and no other transfer of agricultural land shall bevalid unless it has been made with the previous sanction of the tahsildar:provided that the tahsildar may declare apermanent alienation or any other transfer of agricultural land to be valid ifthe permanent alienation or transfer took place before the commencement of thehyderabad tenancy and agricultural lands (amendment) act, 1954 and possessionof the land transferred was given to the vendee before such commencement ifapplication for sanction is made within one year after such commencement.(2). applications for such previous sanction shallbe made and disposed of in accordance with such procedure as may beprescribed.'14. again by amendment act no.3 of 1954, a proviso wasincorporated to section 47 and the word 'collector' was substituted by'tahsildar'. as per sub-section (2) of section47, applications for previous sanction that were made shall be disposed of inaccordance with the procedure that may be prescribed. to our mind, itappears, section 48 was also incorporated along with section 47 specifyingrestrictions on grant of sanction. as these provisions underwent severalchanges, we would like to refer the purport of these two provisions. asper section 48, tahsildar is not expected to grant prior sanction if the landheld by the alienor or transferor is left with less than a family holding afteralienation. under the proviso to section 48,this requirement was dispensed with in the case of an alienor, who is not anagriculturist or intends to give up the profession of agriculture or alienatingthe whole of the land in his possession or transferring the land for good andsufficient reasons retaining a basic holding or the area of the land held bythe alienee or transferee after alienation or transfer would exceed three timesthe family holding so determined after excluding the land held by him, which isin possession of a protected tenant and relinquishes his right of resumption ofland owned by him for his personal cultivation. again the government wasgiven power to relax these conditions. likewise, if the land is undermortgage, the tahsildar is not expected to grant sanction for alienation.under section 48-a, if a protected tenant acquired a right of ownership undersection 38 or section 38-d or section 38-e and if eight years havenot elapsed, the tahsildar may sanction permission on payment of compensationto the protected tenant a sum equivalent to the reasonable price so determinedso on and so forth.15. again, by act no.6 of 1964, section 50-b wasincorporated - a) validating the alienations and other transfers ofagricultural lands that have taken place after 10.6.1950 but before a.p.ceiling on agricultural holdings act, 1961 (hereinafter referred to as 'theagricultural holdings act') came into force and where possession of such landwas given to alienee or transferee before the date the act came into force; andb) on or after coming into force of the agricultural holdings act but beforethe date of commencement of the a.p. (telangana area) agricultural lands (thirdamendment) act, 1969 and where possession of land was given to such alienee ortransferee before such commencement and such alienation or transfer is notinconsistent with the provisions of the agricultural holdings act and thealienee or transferee has to approach the tahsildar for a certificate declaringthat such alienation or transfer is valid within the period prescribed for thepurpose.16. under sub-section (2) of section 50-b, on receiptof such application, the tahsildar, after making such enquiry and aftersatisfying himself that the consideration if any payable to the alienor ortransferor or has been paid or deposited within such time and in such manner asmay be prescribed, require the alienee or transferee to deposit in the officeof the tahsildar an amount equivalent to the registration fee and stamp dutythat would have been payable had the alienation or transfer been effected byregistered document in accordance with the provisions of the indianregistration act. under sub-section (3) of section 50-b, the validationof any alienation or transfer of any land shall not affect the right accrued toany person under section 37-a or section 38 or section 38-e of the act.under sub-section (4) of section 50-b, the collector may suo motu at any timecall for the record relating to any certificate issued or proceedings taken bythe tahsildar under this section to satisfy himself about the legality andpropriety of the certificate issued. the time limit prescribed forvalidation of the alienation seemed to have been extended from time to time andthe last extension expired on 31.3.1972.17. a combined reading of these provisions would giveus an impression that the main purpose and intendment of incorporating section47 in the tenancy act is to see that the landholders shall not alienate theland as the government is contemplating to introduce ceilings on agriculturalholdings in the erstwhile telangana state. the intention of the legislaturecan be gathered from the provisions of section 50-b of the tenancy act. admittedly, the tenancy act came into force on 11.6.1950 and theagricultural holdings act came into force in the year 1961. by that timeseveral alienations or transfers have taken place and in fact after theenactment of agricultural holdings act also, some of the landholders seemed tobe alienating the land apprehending further reduction in the land holdings. hence, under clause (b) of sub-section (1) of section 50-b, even thealienations made after the agricultural holdings act prior to third amendmentact, 1969 were also held to be valid provided the transfer or alienation is notinconsistent with the provisions of agricultural holdings act. likewise,it is also seen from section 48, the tahsildar is not expected to grant priorsanction if the holding of the alienor is reduced to less than that of a familyholding unless the alienor is giving up the profession of agriculture and theholding of the alienee is not exceeding three times after excluding the landheld by him under the possession of protected tenant and he relinquishes theright of resumption. we should also keep in mind thatin the subsequent amendments made to the tenancy act, the government conferredtitle on protected tenants and they were declared as owners of the land.18. from the above it is clear that the intention ofthe legislature in incorporating section 47 is to see that the landholder shallnot alienate the land to his detriment by not retaining a minimum extent ofland i.e., the family holding and that the holding of the alienee shall notexceed more than three times of the land holding specified under section 4 ofthe tenancy act and also to see that the provisions of the agriculturalholdings act are not circumvented. it is also to be noted that sections47 and 50-b are on the statute book simultaneously till sections 47 and 48 aredeleted by act no.12 of 1969. a combined reading of these two provisionsgives us an impression that the alienation that had taken place incontravention of section 47 i.e., without obtaining prior sanction of thetahsildar, is void. after incorporating section 50-b in the tenancy act,the transaction became voidable at the instance of either the landholders orthe tenant on the land or the government, but by no others. when once itbecomes voidable transaction, at the option of the parties it can be treated asa valid alienation.19. admittedly, in this case, the alienation seemed tohave taken place after introduction of section 50-b i.e., on 28.7.1964.nextly, it is seen that in the earlier litigation, during the pendency of thesecond appeal, the original land owner impleaded the plaintiffs in this suit asadditional appellants in s.a.no.320 of 1966 and at that time the defendant didnot raise any contention that the plaintiffs cannot be brought on record asadditional appellants as the transaction being void and the judgment wasrendered declaring him as a trespasser in the presence of the plaintiffs andthat became final.20. after the earlier proceedings attained finality,the defendant filed a petition before the revenue divisional officer, westdivision, hyderabad in file no.4/2/104/70 to declare him as a protected tenantover the suit schedule property. in that petition, the plaintiffs filedan application seeking permission of the revenue divisional officer to getthemselves impleaded as party respondents and the same was allowed on 5.7.1965and the defendant was directed to amend the petition before 16.8.1965. asthe defendant failed to amend the petition, the revenue divisional officerdismissed the petition and the defendant carried the matter in appeal to thejoint collector who allowed the same by order dated 10.1.1967 directing therevenue divisional officer to give an opportunity to the petitioner to amendthe plaint and proceed with the case. though the defendant filed the amendedpetition on 12.6.1967, he did not produce any evidence in support of his onlyand specific plea that he is a protected tenant and ultimately the saidpetition was dismissed and that order became final. even at the stage when theplaintiffs filed implead petition or after the petition was dismissed, thedefendant did not choose to question the correctness of the order passed by therevenue divisional officer in any competent forum and it has become final.21. now we have to consider the effect of deletion ofsection 47 from the statute in the light of observations made in the judgmentsreferred supra as well as other decisions which were cited by the counsel forthe plaintiff.22. in nathulal v. phoolchand, : [1970]2scr854 , their lordships of thesupreme court while considering a similar provision, viz., section 74 of themadhya bharat land revenue and tenancy act, 1950 wherein the land could not besold to an alienee, not being an agriculturist, without sanction of the stategovernment, held that though there was no condition in the contract that thesanction as required under section 74 could be obtained, it must be impliedthat the transferor will obtain the sanction of the authority concerned sinceit is a well settled proposition that where by a statute, property was nottransferable without the permission of the authority, the agreement to transferthe property must be deemed subject to implied condition that the transferorwill obtain the sanction from the authority concerned. in fact, the saidjudgment was considered by their lordships in m. pochamma (27 infra) and vitaldifferences between the provisions of the madhya bharat land revenue andtenancy act and the a.p. (telangana area) tenancy and agricultural lands actwere pointed out in paragraph 31 of the judgment as hereunder:'1. while under section 74 of the madhyabharat act no land could be sold to an alienee, not being an agriculturist,without sanction of the state government, section 47 of the a.p. act clearlydeclared that no permanent alienation or other transfer of any agriculturalland shall be valid, unless it has been made with the previous sanction of thetahsildar.2. there is no provision in the madhya bharat actwhich corresponds to section 50-b of the hyderabad tenancy act, under whichvalidation of transfers could be effected even later, once again emphasizingthat validation of the transfer was essential.3. since there was possibility in nathulal (16supra) for securing permission and thus complying with section 70 (4) of themadhya bharat act, section 53-a was presumably held to safeguard the possessionof the transferee. but in the facts of the case,their lordships observed that the possibility of securing sanction came to anend by 31.3.1972 and after that there was no possibility of validating the saletransactions.'23. in qudrat ullah v. bareilly municipality, : [1974]2scr530 , theirlordships of the supreme court considered the additional ground raised by therespondent-municipality that after repeal of uttar pradesh (temporary) controlof rent and eviction act, 1947 and introduction of u.p. urban buildings(regulation of letting, rent and eviction) act, 1972 wherein the buildingsowned and vested in the state and central government and local authorities areexempted from the provisions of the act under section 2 of the said act, theboard is entitled to an ejectment decree even if the earlier contracts are heldto be leases in favour of the appellant and the effect of the repeal of theearlier act. counsel for the municipality contended that the effect ofrepeal of a statute in the absence of saving clause is that it has to beconsidered as if the statute, so repealed, has never existed. inparagraph-24 of the judgment, their lordships formulated the question to beanswered to the following effect:'the only further question iswhether it is permissible for this court to take note of the extinguishment ofthe statutory tenancy at this stage and grant relief to the appellantaccordingly.'24. their lordships in paragraph-27 held as under:'from what we have statedabove, it follows that the argument of any vested right in the defendant beingtaken away does not hold good; nor is there any foundation for the contentionthat the later act is being applied retrospectively. all that we hold is (a)that a disability of the plaintiff to enforce his cause of action under theordinary law may not necessarily be transmuted into a substantive right in thedefendant, (b) that rights of a statutory tenant created under a temporarystatute, as in this case, go to the extent of merely preventing the eviction solong as the temporary statute lasts, (c) that the provisions of s. 43 do notpreserve, subsequent to repeal, any right to rebuff the plaintiff's claim foreviction, and (d) that s. 6 of the general clauses act does not justifyanything larger or for any time longer than s. 2 of the act confers or lasts.it is appropriate for a court to do justice between parties to the litigationand in moulding the relief in the light of the subsequent developments, to takenote of legislative changes. a court of justice should, if it could, adjudicatefinally and not leave the door ajar for parties to litigate again. in thepresent case, it is not seriously disputed that if the plaintiff were to suefor recovery of possession today, the rent control law does not stand in theway. therefore, it is manifestly a measure of doing justice between the partiesand ending litigation, which has seen two decades pass, to conclude it here bytaking cognizance and adjusting the relief in the light of the later act andrepeal of the earlier act. nevertheless, it is contended that the present suitcannot be decreed in view of the provisions of the u. p. public premises(eviction of unauthorised occupants) act, 1972.'25. in arriving at the above view, their lordshipsrelied on a decision of the supreme court in indira sohanlal v. custodian ofevacuee property, delhi, : [1955]2scr1117 wherein the hon'ble supreme court observed that'what in effect, learned counsel for the appellant contends for is not the'previous operation of the repealed law' but the future operation of theprevious law' and also referred to other authorities, including thedecision of the federal court in lachmeshwar prasad v. keshwar lal, air 1941 fc 5.26. from the above, it is seen that unless therepealing statute provides saving clause protecting the rights accrued underthe repealed act, in this case disability has to be considered as if thestatute, so repealed, has never existed.27. in india tobacco co. ltd. v. the commercial taxofficer, bhavanipore, : [1975]2scr612 , their lordships of the supreme court considered theeffect of repeal of an act in paragraphs 15, 16 and 17 of the judgment asunder:'the general rule of construction is that therepeal of a repealing act does not revive anything repealed thereby. but theoperation of this rule is not absolute. it is subject to the appearance of a'different intention' in the repealing statute. again such intentionmay be explicit or implicit. the questions, therefore, that arise for determinationare: whether in relation to cigarettes, the 1941 act was repealed by the 1954act and the latter by the 1958 act? whether the 1954 act and 1958 act wererepealing enactments whether there is anything in the 1954 act and the 1958act indicating a revival of the 1941 act in relation to cigarettes?it is now well settled that 'repeal'connotes abrogation or obliteration of one statute by another, from the statutebook as completely as if it had never been passed'; when an act isrepealed, 'it must be considered (except as to transactions past andclosed) as if it had never existed'. (per tindal, c.j. in kay v. goodwinand lord tenterdon in surtees v. ellison cited with approval in state of orissav. m. a. tulloch & co.).repeal is not a matter of mere form but one ofsubstance, depending upon the intention of the legislature. if the intentionindicated expressly or by necessary implication in the subsequent statute wasto abrogate or wipe off the former enactment, wholly or in part, then it wouldbe a case of total or pro tanto repeal. if the intention was merely to modifythe former enactment by engrafting an exception or granting an exemption, or bysuper-adding conditions, or by restricting, intercepting or suspending itsoperation, such modification would not amount to a repeal (see craies onstatute law, 7th edn. pp. 349, 353, 373, 374 and 375; maxwell's interpretationof statutes, 11th edn. pp. 164, 390 based on mount v. toylor; southerland'sstatutory construction 3rd edn. vol. i, paragraphs 2014 and 2022, pp. 468 and490). broadly speaking, the principal object of a repealing and amending act isto 'excise dead matter, prune off superfluities and reject clearly inconsistentenactments' see mohinder singh v. mst. harbhajan kaur.'28. from the above it is seen that when once an act isrepealed, it does not revive anything thereby and it amounts as if it had neverbeen passed, unless an intention is expressly or impliedly provided in the actrepealing the earlier act. the intention is to be gathered from thesubsequent statute. in the absence of any intention, the subsequent statute isto abrogate or wipe of, the former enactment wholly or in part in which case itis a pro tanto repeal.29. in this case, the repeal is simpliciter withoutpreserving prohibition incorporated in section 47 any longer and it amounts toa total repeal. in other words, the statute as ifwas not in existence. if we examine the facts of thecase, though the alienation is at a time when section 47 and section 50-b wereon the statute the possession could not be delivered because of the litigationpending in the civil court. by the time the proceedings in the civilcourt and revenue court came to an end and rights of the parties crystallizednot only sec. 47 was deleted from the statute but also the procedurecontemplated for getting the transfer validated expired.30. we have referred to the decision in parvathamma (20 infra) wherein theirlordships considering the effect of confirmation of sale in the auctionconducted by court without obtaining prior sanction of the tahsildar and havingtaken note of the repeal of the section, their lordships observed:'section 47 and other connected provisions of the main act have beenomitted with the result that no sanction is at all necessary before confirmingthe sale in favour of the auction purchaser'.31. in a well considered judgment in s.a. gaffar (30infra), his lordships justice venkatarama sastry after considering variousdecisions held that 'confirmation already made should be deemed to bevalid in the same way as possession given under such agreement when section 47was in force, which was held to be unauthorised by various decisions is nowheld by their lordships to be valid possession. on the same parity ofreasoning, the confirmation of sale without the necessary sanction undersection 47 should also be held to be valid even after the deletion of section47 from the statute book'.32. in s. rafiuddin v. s. asaduddin, 1984 (2) aplj 75, a division benchof this court held that even if a prohibition as contained in section 47 of theact is there at the time when unregistered sale deed(ex. b-1) was obtained, no sanction for finalisation ofregistration of ex. b-1 was necessary since section 47 was deleted by the timethe suit was instituted.33. in g.v.k. rama rao (26 infra), a learned singlejudge of this court having referred to full bench judgment in k. parvathamma(20 infra) held:'i carefully perused the above cases and i amof the view that the ratio laid down by this court in all the judgmentsincluding that of full bench is that in view of repeal of section 47 of tenancyact with effect from 18.3.1969 all previous transactions are in no way effected(sic., affected). ex. a-1 sale deed dated 20.3.1967is, therefore, a valid transaction. question no. 2 is thus held infavour of the plaintiffs.'34. but the very learned judge while considering thecase of a protected tenant in b. jangaiah (25 infra) held that the view takenby him in the above case was not correct. but we have seen the facts inthe cases of jangaiah (25 infra) and g.v.k. rama rao (26 infra).admittedly, the jangaiah's case (25 infra) relates to the rights of a protectedtenant and as observed from the preamble of the act, it is clear that section47 is intended mainly i) to see that agrarian reforms that are in theoffing are not defeated by unscrupulous landlords, ii) to protect the interestsof the protected tenants and iii) to see that unscrupulous protected tenantsmay not knock away the properties of landlords by dubious methods. this is evident from the guidelines laid down in section 48 of the actfor grant of sanction for effecting alienations by the landlords. hence, evenif the learned judge feels that the decision in g.v.k. rama rao (26 infra) iswrong, the overwhelming view of this court coupled with the decision of thesupreme court on the effect of repeal of a statute could not be ignored.35. sri m.v.s. suresh kumar countering the argumentsof the learned counsel for the appellants placed reliance on a decision of thesupreme court in ram kristo mandal v. dhankisto mandal, : [1969]1scr342 wherein the lordshipsof the supreme court while considering the repeal of section 27 of the sonthalparganas regulation, 1972, which prohibited any transfer of a holding by aryoth either by sale, gift, mortgage or lease or by any other contract oragreement, observed:'it is true, that ss. 27 and 28 of theregulation were repealed by the santal tenancy (supplementary provisions) act,14 of 1949. but s. 27 was in force when the said transaction of exchange wasmade and governed the transaction made by nilmoni dasi and premmoyee, dasi.that transaction being invalid and void, the fact that s. 27 was subsequentlyrepealed made no difference as the repeal could not have, the effect ofrendering an invalid and void transaction a valid and bindingtransaction.'36. the cases referred to supra are later in point oftime and in ram kristo (7 supra), their lordships except holding that theinvalid and void transaction cannot be a binding transaction did not considerthe effect of repeal of a provision as was done in the cases of state of punjabv. m.s. pratap singh, air 1955 sc 84, qudrat ullah (2 supra) and india tobbacco co (5supra). hence, we are inclined to follow the view taken by the supremecourt in those three decisions than the view expressed in ram kristo mandal (7supra), more so without any discussion on the effect of repeal of a provision.37. the next question to be considered is whether thedefendant, who was declared as a trespasser in the earlier proceedings ins.a.no. 320 of 1966 in the civil court and the proceedings before revenue courtwherein his request for recording his name in the tenancy register was rejected,can resist the suit on the ground that the alienation in favour of theplaintiff is hit by section 47 of the act. as stated supra,while the suit filed by the defendant for injunction against the owner of theproperty was pending, the owner sold the property to the plaintiffs.thereafter, the owner herself filed civil miscellaneous petition before thiscourt to bring the plaintiffs as additional appellant in the second appeal pendingbefore this court by stating that she sold the land in favour of theplaintiff. at that point of time, the defendant did not raise anyobjection that the transaction being hit by section 47 of the act and in factthe plaintiffs were impleaded as additional appellants in the second appeal. inthe presence of plaintiffs, the defendant was declared as trespasser. when thedefendant approached the revenue divisional officer seeking entry of his namein the protected tenancy register, the plaintiffs got themselves impleaded andpleaded that the property was purchased by them. even at that stage, he did notraise this issue. ultimately, in both the courts, the defendant lost hiscase. now the law is well settled withregard to the position of a trespasser. the trespasser can maintain hispossession against the entire world, except the real owner. in this casewhen once the earlier proceedings have taken place in the presence of plaintiffsand the defendant was declared as trespasser, necessary inference to be drawnis that the court below recognised the sale in favour of the plaintiffs hereinand held that the defendant is a trespasser. from thatmoment, it cannot be said that the plaintiffs are strangers to the property asthe right of the defendant over the property was recognised by a competentcourt.in the light of the foregoing discussion, we areof the view that the judgments in s.a.no. 320 of 1966 and the revenue courtoperate as res judicata, and the defendant cannot raise this issue in the thirdround of litigation.38. mr. suresh kumar cited the following decisionsalso for the proposition that there cannot be any estoppel against the statuteand no court can enforce a transaction as valid which, according to law, isinvalid.39. in surajmull v. triton insurnce co, air 1925 pc 83, the owner ofthe steamer filed a suit claiming damages for breach of an alleged contract to'issue policies of insurance covering war risks on goods' shipped orto be shipped. in this case after some oral discussion between theappellant firm and the insurance company, the company refused to issue policyand on that the appellant insured the goods else where at higher premium andclaimed excess premium paid by the company as damages. adverting to thesituation as no insurance policy was issued, justice lord summer held asfollows:-'no court can enforce as valid, that whichcompetent enactments have declared shall not be valid, nor is obedience to suchan enactment a thing from which a court can be dispensed by the consent of theparties, or by a failure to plead or to argue the point at the outset.'40. we feel this ratio decidendi of this case is notof much help, since in the peculiar circumstances of this case; we have toconsider the effect of sec. 50-b read with section 47 when both sections are onthe statute book.41. the learned counsel cited yet another judgment indinbai v. the dominion of india, : air1951bom72 for the proposition that there can be noestoppel against law and no person can be precluded from contending thatcertain orders are invalid as the orders are valid or not is a pure question oflaw. this proposition is unexceptionable. but we have to considerthe effect the deletion of sec. 47 in the case on hand and the time limit fixedunder section 50-b for validation of the alienation expired by the time thesuit was laid. the counsel relied on the judgmentin mannalal v. kedar nath, : [1977]2scr190 for the proposition that whether a contract,expressly or by implication, is forbidden by state, no court can give itsassistance to give effect. in other words what is done in contravention of theprovisions of an act of the legislature cannot be made subject of anaction. again application of this principle will depend upon the view weare going to take on the fact of deletion of sec. 47 at the time when the suitis instituted.he also placed reliance on two judgments of themadras high court in koneridous v. n. subbaiah naidu, : air1975mad124 and zalim v. babutirlochan prasad singh, air 1937 oudh 220 (fb) for the proposition that it is always open to a partyto question the correctness of any order of competent court passed in earlierproceedings by bringing the legal representatives on record in subsequentproceedings. in this case, the facts as stated supra are altogetherdifferent and hence we are not referring to these judgments, as they cannotcome to the aid of the defendants.42. on the other hand, in vijayabai v. shriramtukaram, : air1999sc431 , their lordships of the supreme court held:'it would be impermissible to permit anyparty to raise an issue, inter se, where such an issue under the very act hasbeen decided in an early proceeding. even if res judicata in its strict sensemay not apply but its principle would be applicable. parties who are disputingnow, if they were parties in an early proceeding under this very act raisingthe same issue, would be stopped from raising such an issue both on theprinciple of estoppel and constructive res judicata.'43. hence, we are of the view that the defendantcannot be permitted to raise the issue that the alienation is hit by section 47of the act at this belated stage.44. nextly, sri m.v.s. suresh kumar placed reliance ona judgment of the supreme court in m.m.b. catholicos v. m.p. athanasius, air 1954 sc 526 forthe proposition that the plaintiff has to succeed or fall on the strength ofhis own title than trying to destroy the title of the defendant. absolutelywe are in full agreement with the proposition. when once we hold that thealienation in favour of the plaintiff is not hit by section 47, perhaps thedefendant has no case as he was already declared by a competent court that hewas in unauthorised possession of the property, which has become final.45. in the earlier round of litigation in secondappeal no. 320 of 1966 dated 5.3.1999, this court having taken note of thealienation made by the first appellant in favour of appellants 2 and 3, whowere brought on record as per orders in c.m.p.no. 3179 of 1966 dated 26.9.1966,categorically recorded a finding:'this appeal is filed by the first defendant,originally appellants 2 and 3 were added in this court. the plaintifffiled the suit for an injunction restraining the defendant from interferingwith his possession alleging that he has the status of protected tenant andthat he continued in possession as a tenant after the death of his father. it is admitted that the defendants are owners of this property.'46. since the plaintiffs were already brought onrecord in the earlier proceedings as owners of the property, the defendantherein cannot contend that they are strangers and he could protect hispossession against them, who are admittedly true owners as recorded in theabove appeal.47. sri m.v.s. suresh kumar cited another judgment intatoba ganu v. tara bai, : air1957bom280 for the proposition that the plaintiff has to provehis title and the court is not concerned with the weakness of the title of thedefendant in a suit for ejectment and that the defendant may be a trespasserbut the defendant in possession is entitled to ask the plaintiff to provestrictly his title. admittedly that was a suit filed for ejectment of thedefendant therein. here, the suit was filed for recovery of possessionand injunction by the plaintiffs and their title to the property was alreadyrecognised in earlier proceeding itself and hence the defendant cannot resistthe suit for recovery of possession and injunction.48. nextly, mr. suresh kumar brought to our notice thepassage from the judgment of the supreme court in nair service society v. k.c.alexander, : [1968]3scr163 , which was borrowed from perry v. clissold, 1907 ac 73, which is to thefollowing effect:'it cannot be disputed that a person inpossession of land in the assumed character of owner and exercising peaceablythe ordinary rights of ownership has a perfectly good title against all theworld but the rightful owner. and if the rightful owner does not come forwardand assert his title by the process of law within the period prescribed by theprovisions of the statute of limitation applicable to the case, his right isfor ever extinguished and the possessory owner acquires an absolutetitle.'49. in the light of the above principle, as alreadystated, if the rightful owner comes forward and asserts his title within theprescribed period of limitation, the person in possession of the property andexercising the ordinary rights of ownership has to give way to the rightfulowner.50. the learned counsel for the appellant, mr. sureshkumar, contended that on the day when smt. ummatul basheera begum sold theproperty in favour of one muneera sultana, the first plaintiff herein viz., on28.7.1964, she had no title to the property and as such it cannot be said thatshe conveyed the property validly. on that ground also, the learnedcounsel contends, the alienation cannot be given effect to. but the factremains that the defendant filed a suit in o.s.no. 38 of 1963 against basharatahmed and his wife ummatul basheera begum for permanent injunction in1963. if ummatul basheera begum was not having a right over the property,it is not known as to why the defendant made her as party defendant in thesuit. even assuming for the sake of argument that she was not havingownership right over the property that was sold by her in 1964, during thependency of the suit and after disposal of a.s.no. 320 of 1966 and beforefiling s.a.no. 320 of 1966, basharat ahmed died and his wife ummatul basheera begum,who sold the property to the plaintiffs, succeeded to the property of basharatahmed as they had no issues. in fact no other legal heir of basharatahmed after his death claimed any right over the suit schedule property allthese years i.e., from 5.10.1965, the day on which basharat ahmed died.the contention raised by the counsel is squarely answered by section 43 of thetransfer of property act, which reads as under:'where a person fraudulently or erroneouslyrepresents that he is authorised to transfer certain immovable property andprofesses to transfer such property for consideration, such transfer shall, atthe option of the transferee, operate on any interest which the transferor mayacquire in such property at any time during which the contract of transfersubsists.nothing in this section shall impair the right oftransferees in good faith for consideration without notice of the existence ofthe said option.'51. even assuming for the sake of arguments, ummatulbasheera begum has no right of ownership over the property, after the death ofher husband, basharat ahmed, on 5.10.1965, she has not only acquired theownership rights over the suit schedule property but also in the second appealshe filed a civil miscellaneous petition to bring the plaintiffs as appellants2 and 3 on record by stating that she sold the property to them, which petitionwas ordered by this court. hence, it could be seen that she not onlyacquired ownership rights over the property subsequent to the alienation but alsofiled an application stating that she has transferred the right over theproperty in favour of the plaintiffs. hence, the defendant cannot contendthat the plaintiffs have no right of ownership over the property.accordingly, this contention is also rejected.52. their lordships of the supreme court hadconsidered the effect of alienation pendente lite in nagubai v. b. shamarao, : [1956]1scr451 . in that case, after keshavananda was adjudged as insolvent and theestate vested in the official receiver, plaintiff purchased the suit scheduleproperty in execution of a decree in o.s.no. 100/99-20. the defendantraised a contention that the transaction is void and no title was conferred onher because the official receiver, in whom the estate of keshavananda vested,was not made a party to the proceedings. in paragraph-25of the judgment, their lordships held as under:'but it is argued for the appellants thathaving regard to the words of s. 52 that pendente lite 'the propertycannot be transferred', such a transfer must, when it falls within themischief of that section, be deemed to be non est, that in consequencekeshavananda must, for purposes of lis pendens, be regarded as the owner of theproperties, notwithstanding that he had transferred them, and that the officialreceiver who succeeded to his rights had a right to be impleaded in the action.this contention gives no effect to the words'so as to affect the rights of any other party thereto under any decree ororder which may be made therein', which make it clear that the transfer isgood except to the extent that it might conflict with rights decreed under thedecree or order. it is in this view that transfers pendente lite have been heldto be valid and operative as between the parties thereto.'53. from the above decision, it is seen that thetransfer is good between the parties except to the extent that it mightconflict with the rights decreed under the decree or order. the mattercan be viewed from another angle also. a purchaser who purchased theproperty in dispute will get no better title than what the real vendor washaving in the property. when once such a party gets himself impleaded inthe proceedings by contending that he purchased the property pendente lite, ithas to be presumed that he steps into the shoes of the owner of the propertyand if the owner's right to property is upheld it amounts to upholding thetitle in favour of his vendee.54. assuming for a moment that the principle of resjudicata is not applicable, we would like to refer to the case-law cited by thelearned counsel on both sides with regard to the validity of the transaction.55. sri m.v.s. suresh kumar relied ona full bench judgment of this court in k. parvathamma v. the commissioner ofexcise, air 1973 ap 333 : 1970 (2) alt 186 (fb). it is true that in this case the full bench observed that inthe case of private alienations the rule is well settled that prior sanctionshould be obtained before the registration of the document, i.e., at the stagewhere the title to the property passes on to the purchaser. likewisein the case of involuntary sale, sanction should be obtained before sale is confirmed,i.e., the stage at which there is transfer of the property by operation of law.their lordship having placed reliance on another full bench judgment of thiscourt in p.e. ramakistaiah v. pochaiah, 1967 (2) an.w.r. 17 (f.b.) observed that after the sale is heldand the purchaser is ascertained, he should then apply to the tahsildar forsanction under s.47 of the tenancy act and on the strength of such priorsanction alone, the sale will be confirmed under section 139 of the landrevenue act which represents the final stage at which transfer by operation oflaw takes place. this judgement is rendered in a writ petition filed by thepetitioner, the daughter of the landholder, seeking writ of mandamus directingthe collector to hold fresh auction of the suit schedule properties as priorpermission was not obtained as required under section 47 of the tenancy actbefore bringing the properties of her father to sale for recovery of excisearrears.56. admittedly, the party whocomplained against the illegality in the transfer is no other than the daughterof excise contractor who fell in excise arrears and whose properties werebrought to sale in revenue auction. while considering the plea, thelearned judges made a passing observation that 'in private sales, the ruleis well settled that prior sanction should be obtained before the registrationof the document'. but to our mind that in the light of sec.50-b ofthe tenancy act even if no prior permission is obtained before sale transactionis completed the alienee is given the opportunity to approach the tahsildar forobtaining the certificate. when once the conditions laid down in sections48 and 50-b are complied with, the tahsildar cannot refuse to grantpermission. it is pertinent to note that the learned judges having heldthat prior sanction is required before confirmation of sale observed as under:'the result of their decision is that priorsanction under sec.47 is required only before the sale is confirmed undersec.138 of the revenue act. by virtue of the order of stay passed therevenue sale in favour of the purchaser has not yet been confirmed. butit has to be noted that in view of the recent legislation viz., andhra pradesh(telangana area) tenancy and agricultural lands act (third amendment) (act 12of 1969 which came into force on 18.03.1969, section 47 and the other connectedprovisions of the main act have been omitted with the result that no sanctionis at all necessary before confirming the sale in favour of the 5threspondent'.57. from this view of the learnedjudges it is clear that when once the section prohibiting alienations of theimmovable property is deleted from the statute, no sanction is required forconfirmation of the sale in favour of the 5th respondent since the title passeson to the purchaser only after registration.58. coming to the case on hand, to our mind though thesale took place on 28.7.1964 when both sections 47 and 50-b are on the statutebook, the plaintiffs were not put in possession of the land since theproceedings initiated in the civil court by the defendant were pending at thatpoint of time and the same came to an end only in 1969. subsequently, thedefendant approached the revenue divisional officer to enter his name in theofficial record. that litigation came to an end on 6.6.1974 by which time s.47is deleted from the statute book. it is also to be seen that timelimit prescribed under sec.50-b of the act to obtain prior permission was notavailable as the extended time came to an end on 31.3.1972.59. the next decision relied on by thelearned counsel is that of this court in lachamma v. k. chinna venkata reddy, ilr 1974 a.p. 119wherein the division bench held as follows:'a plain reading of sec.50-b would clearlyindicate that it is prospective in operation and not retrospective. mere deletion of sec.47 or introduction of s.50-b does not by itselfvalidate all the transfers which were valid; such invalid transfers do notbecome legally enforceable unless a seal of approbation is put up by thetahsildar by granting a certificate a certificate validating the sale.'60. from the above, it is seen that their lordshipswere dealing with the alienations that have taken place prior to introductionof section 50-b.61. nextly, the facts andcircumstances in this case are not known as only a short note of the judgmentwas placed before us. even in this judgment their lordshipsobserved that invalid transfers do not become legally enforceable unless a sealof approbation is put up by the tahsildar by granting a certificate validatingthe sale. but there was no indication at what stage the certificate hasto be obtained. but in any of the cases cited before us, none the alienationshave taken place when both the secs.47 and 50-b are on the statute book.in the absence of sec.50-b perhaps the counsel may be justified in contendingthat this being an illegal alienation it cannot be validated by mereintroduction of sec.50-b without the seal of approval by the tahsildar. but when both the sections are on the statute book, keeping in viewthe scheme of the act we have already taken the view that it is only a voidablealienation but not a void alienation. when once it is voidablealienation it can be validated by any of the parties involved in thetransaction i.e., the vendor, vendee and in this case it is the tahsildar whohas to give the seal of approbation.the very fact that the vendor or her successorsdid not question the alienation or the tahsildar who is competent authorityunder the act have not raised any dispute with regard to the validity of the transactionthough it was brought to the notice of the tahsildar by the defendant bynecessary implication, it has to be held that the tahsildar has given his sealof approval to the transaction. nextly, the principle laid down in thiscase may not come to the aid of the defendant, since the transaction is not hitby section 47 of the act as no possession was delivered to the plaintiff at thetime of the transaction as held by the court in the decision referred tohereunder and the alienation is subject to the result of the proceedingspending in civil court.62. the next decision relied on by the learned counselis m. seeta devi vs. m.r.o, 1990 (1) aplj 219 for theproposition that the registered sale deed obtained without obtaining permissionunder sec.47 is void. this judgment is again rendered in a writ petition filedunder art. 226 of the constitution of india wherein the petitioners questionedthe orders passed by the mandal revenue officer refusing to cancel mutation ofthe lands in favour of the 3rd respondent who is no other than one of the sonsof original landholder. the contention of the petitioners was that the3rd respondent and his two sons sold an extent of ac.14.12 guntas of land by aregistered sale deed to one pochamma without obtaining prior sanction and themandal revenue officer erred in mutating the lands in favour of the 3rdrespondent. while considering the case of thepetitioner, the learned judge observed that 'prior sanction by thetahsildar was not obtained as required under sec. 47 of the act and hence thesale is to be considered as void'. the learned judge in arriving atthe above decision relied upon a judgment of this court in ushanna v. sambhugond, 1985 (3) aplj 32 wherein this court held that 'if the transferee or alienee did notavail himself of this opportunity of getting his alienation and possessionvalidated under section 53-b, he should suffer the consequences, since thetransfer and delivery of possession in his favour remained invalid andunlawful.'in this case, it is seen that the petitionerpurchased the land from one hanumantha rao after deletion of sec. 47 who inturn purchased the same from the first son of the landholder i.e., kesavuluafter obtaining prior permission as required under sec. 47 of the act and wasquestioning the alienations made by the 3rd respondent and his two brotherswithout obtaining prior sanction while alienating the land to pochamma. from this, it is evident that if possession is delivered at the timeof the transaction and if the alienee failed to avail the opportunity ofgetting his possession validated, he has to suffer the consequences.further, to our mind this judgment may not be of much help to the appellant forthe reason that the effect of deletion of sec.47 on the transaction had notbeen considered and that at the time when the 3rd respondent sold the land topochamma, who in turn sold the property to third parties on 30-11-1971, theprocedure for getting the alienation validated was very much available.63. but in the instant case the litigation between theparties in the earlier round was still going on by the time sec. 47 was deletedfrom the act and also the time limit prescribed under section 50-b for gettingthe sale validated had expired.64. the next decision relied on by thelearned counsel is b. jangaiah v.g. laxmamma, : 1999(3)ald381 .in this case the protected tenantquestioned the orders of the mandal revenue officer directing his eviction fromthe land on the ground that he committed willful default in payment of rent forthree years as confirmed by the appellate authority. the maincontention of the petitioner therein seemed to be that as the landholder soldthe petition schedule land to the respondent on 13.06.1950, it is hit by sec.47 of the act and the above sale is void. this argumentwas found favour with the learned judge who held that the sale being a privatesale mere deletion of sec. 47 would not have any effect whatsoever and that thetransaction is hit by sec. 47 and is abinitio void. the learned judge observedthat his decision in g.v.k. rama rao v. b.h.e.c.h.b. society, 1997 (4) ald 294 wherein contraryview was taken by him has to be ignored.65. admittedly, in this case, firstly the maincomplainant about the alienation is no other than the protectedtenant. secondly, alienation has taken place on 13.6.1950 afterpromulgation of tenancy act. unfortunately the factual position was notbrought to the notice of the learned single judge. on the day thesale has taken place, sec. 47 was not on the statute book. for thefirst time it was introduced only in 1951 and the learned judge proceeded on awrong assumption that sec. 47 was on the statute book on the date of executionof sale deed ex.a2, dated 13.6.1950. nextly, the learned judge did notconsider the fact of deletion of sec.47 from the statute book andnon-availability of the procedure contemplated under section 50-b for gettingthe sale validated by the time the suit is filed.66. in m. pochamma v. agent, state govt., adilabad, : air1978ap242 ,the question that fell for consideration of the division bench of this courtwas whether a person who obtained possession of immovable property pursuant tosec. 53-a of transfer of property act without obtaining prior sanction asrequired under sec. 47 of the act and without securing validation certificateunder section 50-b, can claim protection under sec. 53-a of the transfer ofproperty act after a.p. scheduled area land transfer regulations 1959 wereextended to telangana area on and from 1.12.1963. in this casethe non-tribals entered into a contract of sale in respect of the land held bytribals in the schedule areas before 1.12.1962 and after extending thescheduled areas land transfer regulations to telangana area, the vendors i.e.,tribals challenged the validity of the sales under the provisions of theregulation 1959. in this case, the learned judges extensively considered theeffect of various provisions of the tenancy act. it is pertinent to knowthat in paragraph 8 of the judgment their lordships observed as follows:-'...sec. 47 and 50-b are co-existed from 1964to 1969.in 1969 sec. 47 and certain otherprovisions were deleted and only sec. 50-b is on the statute book. thebenefit of validation was extended up to 31.03.1972. the purpose behind thesechanges is not far to seek. section we have already noticed, one of thepurposes of the hyderabad tenancy act is to regulate the alienation of lands.in pursuance of that purpose, chapter v was made imposing certain restrictionson transfers of agricultural lands. section 47 was the very firstprovision in that chapter. it laid down that no permanent alienation orno other transfer of agricultural land shall be valid unless it has been madewith the previous sanction of the tahsildar.this declarationis very clear and specific. if there is any permanent alienation ortransfer of agricultural land without the previous sanction of the tahsildar,that would be invalid. however, the legislature obviously took note ofthe fat that there had been very many permanent alienations or other transfersof agricultural lands which had taken place without the previous sanction ofthe tahsildar. in order to obviate the confusionand injustice that might result therefrom the legislature introduced s.50-b inthe year 1964 for validation of certain alienations and other transfers ofagricultural lands. till 1969 until s.47 wasdeleted both the section community certificate-existed. the position thenwas that the prohibition against alienations without previous sanction of thetahsildar continued and at the same time transferees after 10th june, 1950 butbefore 21st february, 1961 who had also obtained possession, were given anopportunity to get the alienations in their favour validated within one yearfrom the prescribed date.in 1969 s.47 was altogetheromitted; only s.50-b with the changes above mentioned was retained.'67. their lordships at paragraph 9 further observed asfollows:-'the position which emerged from theamendment of s. 50-b was that alienees of agricultural lands, whohad obtained possession between 10th june, 1950 and before the ceiling act of1961 and also after the ceilings act of 1961 but before the hyderabad tenancyact (third amendment 1969, were enabled to secure validation of theiralienations. it is important to note that the facility of validation would beavailable only to those transferees who had obtained possession of theland. if all the requirements of s.50-b are satisfied, the alienee ortransferee may apply to the tahsildar for a certificate declaring that his alienationor transfer was valid.'68. their lordships having considered the effect ofsec. 50-b and the procedure prescribed for obtaining validation certificateheld in the same paragraph as follows:'it must necessary follow from this that ifthere is no validation certificate, the alienation or transfer, thoughaccompanied by possession, would not be treated as valid.'69. having stated so their lordships referred to thesubsequent deletion of section 47 in paragraph 19 of the judgment and held asfollows:-'...whether the subsequent deletion of s.47of the hyderabad tenancy act would have the effect of automatically validatingthe alienations and transfers, though they were invalid on account of lack ofsanction of the tahsildar under that section. if there was deletion of s.47simpliciter without anything more, possibly two views might have beenpossible. on the one hand, probably it could have been said that what hadbeen the cause of invalidity of an alienation or transfer has been removed bythe deletion of s.47 and therefore it must be deemed that the original defectin the alienation or transfer must be deemed to have been cured or removed. onthe other hand it could be argued that what was invalid to start with could notbe validated unless there is a special proclamation by the legislature or aprovision under which such invalid alienations or transfers could bevalidated. however, in our view, this possibility of the existence of twoviews does not exist in so far as the hyderabad tenancy act is concerned, particularlyso in these writ petitions. why we say that suchsituation does not exist in these cases particularly is that s.47 was deletedin 1969 and the regulation relating to the prohibition or alienations of landsin the scheduled areas by tribals came to be applied to the telangana area on1.12.1963 which was long before s.47 was removed from the statute book.even if it were to be argued that the removal of s.47 would automatically validatethe invalid alienations and transfers, the insurmountable hurdle in the way ofthe petitioners would arise in the form of the regulation which came to beapplied to their lands even on 1.12.1963. by virtue of the regulation theinvalidity, which was inhibiting the alienations or transfers in their favourby 1.12.1963 on account of lack of sanction under s.47 of the hyderabad tenancyact, could not be cured in respect of their rights and interests that mighthave existed earlier. it is true that up to 1.12.1963, that is to say,till the regulation came to be applied to the telangana area, either thepetitioners or their alienors could have applied to the tahsildar forpermission for the alienations or transfers thereby securing legal sanction to them.it is a moot point whether after the regulation came into force o 1.12.1963 andbefore s.47 was deleted in 1969 permission could be obtained for transfer inrespect of these lands in the scheduled areas in view of s.3 of the regulation.70. however, we do not express any view on this point since it is notnecessary to do so in these cases. the admitted fact remains thatno attempt has been made either by the petitioners or their alienors forsecuring the required permission under s.47 even after 1.12.1963 and befores.47 was deleted.71. at paragraph 20 of the judgment, their lordshipsobserved as follows:-'there is yet another formidable objection tothe validity of the transfers in favour of the petitioners. in 1964s.50-b was introduced for validation of the earlier invalid transfers.for five years thereafter till 1969 s.50-b was part of the statute along withs.47. the result was that even after 1964 no permanent alienation or transfercould be effected without the necessary permission from the tahsildar. at thesame time, the earlier invalid alienations for want of that sanction could bevalidated by taking recourse to s.50-b proceedings. in 1969 s.47 andthe allied provisions were deleted and yet, s.50-b was retained.this is a very material and significant circumstance. though s.47 was deleted,thereby implying that from that date no permission was necessary foralienations or transfers. the earlier invalid transfers, which had taken placefrom 1950 to 1969, could be validated with the aid of the proceedings unders.50-b. it would also be very pertinent to note that by act 12 of1969, which deleted s.47 and the allied provisions from the statute book,substituted sub-sec. (1) of s.50-b whereunder the invalid alienations, whichhad taken place from 10th june, 1950 right up to the date of the commencementof the andhra pradesh (telangana area) tenancy and agricultural land (thirdamendment) act, 1969 could be validated. we have already noted that originallyas s.50-b(1) stood when it was first inserted by act 6 of 1964, onlyalienations from 10th june, 1950 till 21st of february 1961 could be validatedunder that section. while deleting s.47 and the allied provisions in 1969, sub.sec.(1) of s.50-b was altered by extending the period from 21st february 1961till the third amendment to the hyderabad tenancy act in 1969 was made. that isto say, under the newly altered s.50-b as per act 12 of 1969, even thealienations and transfers, which were invalid right up to 1969, could bevalidated. in other words, even those alienations and transfers, which had beenmade without obtaining sanction under s.47 up to 1969 in which year thatsection was deleted, could be cured and made lawful by invoking the provisionsof s.50-b. it is thus manifest that s.50-b was made by the legislaturewith a definite purpose and that purpose was clearly declared in the marginalnote as 'validation of certain alienations and other transfers of otheragricultural lands.' as we have pointed out, very many alienationshad been made contrary to ss.47, 48 etc., and the legislature thought it justand proper to validate some of them. the alienations which could be validated, themanner in which such validation could be made and the time within which thatvalidation could be sought were all prescribed in the section. as itstood amended by 1969 act, transfers, which had taken place between 10th june,1950 and 1969 when the third amendment to the hyderabad tenancy act was madewhere possession had been given and which were not inconsistent with theprovisions of the a.p. ceiling on agricultural holdings act, 1961, wereeligible for validation under the provision.in paragraph 21 of the judgment, their lordshipsobserved that the invalidity of the alienation would continue if there is nodeclaration under section 50-b and the certificate under sub-section (2) couldbe granted only where possession had been delivered and where the alienee haspaid the balance of consideration or deposited the same in the mannerprescribed.72. in paragraph 22 of the judgment, their lordshipsobserved as under:'...if the transferee or alienee did notavail himself of this opportunity of getting his alienation and possessionvalidated under s.50-b, he should suffer the consequences, since the transferand delivery of possession in his favour remained invalid and unlawful.'73. speaking on the purported intention of section50-b, their lordships observed:'s.50-b was not merely an enabling provisionbut was also intended by the legislature as a remedy for validating transfersand possessions which were invalid. without such validation, theinvalid transfer and delivery of possession remained invalid. thisfacility to get the invalid alienations declared as valid existed only up to31st march, 1972, since the legislature stopped further extension for suchvalidation after that date. those who did not apply under s.50-b up to31st march, 1972 would reap the result of having an invalid transfer anddelivery of possession on their hands. the legislature's refusal toextend the time beyond 31st march, 1972 does not validate the invalid transfersand delivery of possessions. if this was not the intention of thelegislature by enacting s.50-b and amending it, then that section would bepointless and purposeless. it cannot be postulated that any provision of anenactment has been made without any purpose.'74. having taken the view, their lordships did notagree with the view taken by justice pardhasaradhi in hafeezunnisa begum v.syed arab, (1969) 2 an. wr 317 wherein his lordship held that section 50-b was merely an enablingprovision and the omission of a party to take advantage of it does not put thevalidation itself in jeopardy.75. in the decision in ushanna (24 supra), justice k.ramaswamy, as he then was, had taken the view that if the transferee or thealienee did not avail himself of the opportunity of getting his alienation andpossession validated under section 50-b, he should suffer consequences sincethe transfer and delivery of possession in his favour remained invalid andunlawful.76. following the said decision, justice m.n. rao, ashe then was, in m. seeta devi (23 supra) held that the sale deed dated8.10.1964 executed by the third respondent and his brothers in favour ofpochamma is void as the alienation has taken place without obtaining anypermission from the mandal revenue officer before entering into an agreement,which preceded the sale deed, and the alienees also have not taken any steps toget the transfer validated under section 50-b of the act. it is pertinentto notice the last portion of the judgment wherein it was observed that'however, it is made clear that it is open to the third respondent to filea civil suit to establish his alleged rights in respect of the land inquestion.'77. again, the above two cases deal with thepossession obtained by the alienees pursuant to an alienation without obtainingprior sanction of the competent authority i.e., the tahsildar. atany rate, justice m.n.rao having found that the sale is void gave liberty tothe party to approach the civil court for establishing his right over theproperty.78. the sum and substance of this judgment is:a) the hyderabad tenancy act was enacted toregulate the alienation of lands and under section 47 of the act no permanentalienation shall be valid, unless it has been made with the previous sanctionof the tahsildar.b) since several alienations or other transfer ofagricultural lands have taken place without the previous sanction of thetahsildar, the legislature in its wisdom introduced section 50-b for validationof certain alienations and both sections 47 and 50-b co-existed on the statutebook from 1964 to 1969 and the embargo placed under section 47 was lifted inthe year 1969.c) their lordships also held that the facility ofvalidation would be available only to those transferees, who had obtainedpossession of the land.d) the alienation or transfer, accompanied bypossession, without obtaining validation certificate, has to be treated as notvalid.e) while considering the effect of deletion ofsection 47, their lordships having observed that two views are possible did notexpress any opinion as that was not necessary in that case since thetransaction therein was prior to 1.12.1963, the date on which the scheduledareas land transfer regulations were extended to telangana area.f) section 50-b was introduced to validate theinvalid transfers that have taken place prior to third amendment whereunderpossession has been given, if the same were not in contravention of a.p.ceiling on agricultural holdings act, 1961.g) the possession of an alienee remains invalidand unlawful if he did not avail himself of the benefit conferred under section50-b.h) the legislature's refusal to extend the timebeyond 31.3.1972 does not validate the transfers and delivery of possession ifthe alienee fails to avail the benefit under section 50-b for getting theillegal transfers validated.79. justice madhava reddy, as he then was, in secondappeal no. 520 of 1968 dated 20.7.1970 while following the judgment in syedjajlal v. targopal, : air1970ap19 considered the effect of deletion of section 47 andobserved:'deletion of section 47 can operate onlyprospectively and if on the date of transfer or permanent alienation whensection 47 was in force, it cannot be contended that on that date thealienation was valid and the transfer of possession would also be valid.he also observed that s.50-b could have reference only to transfers, which weremade at a time when ss. 47 to 50-a were in force. the learned judge expressedthe view that s.50-b, by necessary implication, retrospectively validates thetransfer of agricultural lands made when s.47 was in force and were invalid forwant of prior sanction of the tahsildar.'80. his lordship having considered the third amendmentact, viz., deletion of sections 47 to 50-a of the act, held:'if the third amendment act is held to beprospective at least from 18th march, 1969 onwards, the possession under suchagreements of sale cannot be deemed to be unauthorized and therefore thepersons in possession would be entitled to invoke the provisions of s.53-a toprotect their possession.'81. his lordship further held that the possessionwhich had been delivered to the 1st defendant might have been unauthorized atthe time it was given, but it cannot be deemed to be unauthorized in view ofthe fact that sections 47 to 50-a were deleted and a provision was made forobtaining a certificate declaring the transfer as valid.82. after expressing the said opinion, the learnedjudge arrived at the view perhaps by the time the second appeal was dismissed,still there was time left out for obtaining certificate under section 50-b ofthe act. but this view was not found favour with by the division bench inl.p.a.no. 139 of 1970 and their lordships held:'mere deletion of section 47 or introductionof section 50-b would not by itself validate all the transfers which wereinvalid and that such invalid transfers would not be legally enforceable unlessa seal of approbation is put by the tahsildar by granting a certificatevalidating the same. but it could not be said that by necessary implication s.50-b validates all such invalid matters. it may be thatafter deletion of s. 47 contracts of transfer could be made without any priorpermission as was required when s. 47 was there. but the question hadstill to be answered whether possession delivered in pursuance of agreement tosell prior to 18.3.1969 could be defended by invoking s.53-a of the t.p.act.'83. but, at the same time, their lordships havingapproved the ratio decidendi in syed jalal (29 supra) observed that when oncesection 47 was deleted, the possession given earlier would be considered asvalidly given. ultimately, their lordships agreedwith the conclusion arrived at by justice madhava reddy and dismissed theletters patent appeal.84. from the above it is seen that the learned judgesfirstly expressed concurrence with earlier decision of this court in syed jalal(29 supra) and secondly observed that by deletion of section 47, thepossession, which was unauthorized until then, seized to be unauthorized.again, an inference may be drawn in this case that the above observations oftheir lordships may be attributable to the fact that by the time the letterspatent appeal was dismissed, still the time limit for getting the seal ofapprobation from the tahsildar for the transaction is available.85. yet in another decision, viz., second appeal no.450 of 1970, dated 21.9.1972, justice madhava reddy, as he then was, havingreferred to the judgment of division bench in syed jalal (29 supra) and hisearlier judgment in s.a.no. 520 of 1968 concluded that the view he had takenearlier was found favour with the division bench. in that case, the questionthat arose was whether a contract of sale dated 30.6.1956 could be deemed to beauthorised at least from 18.3.1969, the date on which the third amendment tohyderabad tenancy act came into force, and whether the first defendant candefend and protect his possession by invoking section 53-a of the transfer ofproperty act.86. a full bench of this court in k.parvathamma (20supra) held that even for revenue sales, sanction under section 47 before theamendment of 1969 was required before confirmation of such sale.87. while considering the effect of non-obtaining thecertificate as contemplated under section 47 in court auctions and deletion ofsection 47 by the time the judgment was rendered, their lordships held thatonly after a sale is held and the purchaser is ascertained, he has to apply tothe tahsildar for sanction under section 47 of the tenancy act and on thestrength of such prior sanction alone the sale will be confirmed under section139 of the hyderabad land revenue act, which represents the final stage atwhich transfer by operation of law takes place. dealing withthe effect of new act, their lordships stated as under:'the result of decision is that priorsanction under section 47 is required only before the sale is confirmed undersection 139 of the land revenue act. by virtue of the order of staypassed by this court, the revenue sale in favour of the purchaser has not yetbeen confirmed.but it has to be noted that inview of the recent legislation, viz., andhra pradesh (telangana area) tenancyand agricultural lands act (third amendment) (act 12 of 1969) which came intoforce on 18.3.1969 sections 47 and the other connected provisions of the mainact have been omitted with the result that no sanction is at all necessarybefore confirming the sale in favour of the 5th respondent.'88. from the above it is seen that though a sale hastaken place in terms of law, unless and until, possession is delivered pursuantto sale deed, the sale transaction is not complete and a reading of section 47makes it abundantly clear that prior permission of tahsildar has to be obtainedwhen transfer takes place by operation of law.in other words,in an alienation where registered sale deed is executed, but possession was notdelivered and possession is subject to lis pendens, the question of obtainingprior sanction as required under section 47 of the act does not arise.admittedly, the sale has taken place when proceedings initiated by therespondent in the court of law is pending and he is in possession of theproperty, the question of delivering possession of the property will arise onlyin the event the vendor succeeds in the suit. otherwise, the sale transactionis a nullity in the eye of law. it is also well settled principle that asale is complete only after execution of deed of conveyance followed bydelivery of possession. since the possession could not be delivered owingto two factors i.e., firstly, the defendant was continuing in possession as atrespasser and secondly the lis initiated by him was pending, no occasion ornecessity arose to the plaintiff to invoke section 47 or 50-b of the act.89. in this case, it is seen that the alienation tookplace in 1964 when both sections 47 and 50-b are on the statute book and nopossession was delivered to the vendee since the appellant is in possession ofthe property and the suit filed by him for restraining the land owner frominterfering with his possession is pending in the civil court.thevendee obtained the sale deed without possession subject to the result ofproceedings pending in civil court, the question of handing over possession tohim will arise only in the event, the owner of the land succeeds in thesuit. in other words, the vendee has to sail or sink with the vendor andhe cannot be placed in a better position than that of his vendor. if thevendor succeeds in the suit, then the question of delivering possession by thevendor of taking possession by the vendee would arise.in this case, bythe time the litigation came to an end, section 47 was not only deleted fromthe statute book but also the time limit allowed to get the transactionvalidated under section 50-b by approaching the tahsildar expired. inother words, neither section 47 was there on statute book nor the procedure forgetting the invalid alienation validated was also not available by the time thefirst round of litigation came to an end.90. his lordship justice venkatarama shastry analyzedthe judgment in k. parvathamma (20 supra) in s.a. gaffar v. k. sayanna, 1974 (1) aplj 316 inparagraph 15 of the judgment and observed:'the result of the above authorities is thatwhen section 47 was on the statute book the attachment and court sale ofagricultural lands could be held and only the confirmation has to be postponedtill the sanction was obtained under section 47 of the act. there couldbe no valid passing of title to the auction purchaser till the sanction wasobtained. it is only after his purchase in the court auction the auctionpurchaser has to apply for sanction under sec. 47 of the act. but whenonce sec. 47 itself has been deleted from the act there is no question of anyapplication being made by the auction purchaser and therefore the sale could beconfirmed if not already confirmed. the confirmation of sale madepreviously without prior sanction also though it was initially invalid wouldbecome valid as there is no machinery now in the shape of section 47 in the actto enable the auction purchaser to obtain the necessary sanction for gettingthe sale confirmed. it is no doubt true that the deletion would only haveprospective effect. but it could not have been the intention of thelegislature while deleting this section from the statute book to invalidate allconfirmations of sales made prior to such deletion without obtaining thenecessary sanction. in any event, there are no specific or clear words inthe statute to attribute such intention to the legislature.inasmuchas there is no machinery now available to the court auction purchaser hispurchase cannot be held to be at the risk of invalidity on account of want ofsanction.'91. we are in respectful agreement with the view takenby his lordship venkatarama shastry in s.a.gaffar's case (30 supra).92. adverting to the observation that mere deletion ofsection 47 or introduction of section 50-b does not by itself validate alltransfers which were invalid and that such invalid transfers do not becomelegally enforceable unless the seal of approbation is put by the tahsildar bygranting a certificate validating the sale, in an unreported decision of adivision bench of this court in lachamma v. k. chinna venkatareddy, 1972 (2) aplj 46 (sn) hislordships his lordship justice venkatarama shastry observed:'dealing with the deletion of section 47vis--vis the right of the purchaser to claim part performance under section53-a, their lordships held that such deletion would not deprive the purchaserfrom invoking the principles of part-performance.'93. referring to paragraph-14 of the above decision,his lordship justice venkatarama shastry observed that the ratio decidendi laiddown in that case applies to the facts in s.a.gaffar's case (30 supra). it isuseful to reproduce paragraph-14 of the decision in lachamma (31 supra), whichis as under:'we have already noticed that the above saiddecision of this court holds the agreement to sell not only as valid but iscapable of being enforced by a suit for specific performance.whenthis requirement is complied with in the present case and when the possessiondelivered in pursuance of such agreement cannot be said now to be unauthorizedbecause of deletion of sec. 47 of the act, we fail to see why the plea of partperformance should not be available to the defendant.the bench hadheld the possession is unauthorized in such cases because of sec. 47 read withsec. 98. but when sec. 47 is now deleted not only contracts of transferand alienation made after 18.3.69 would be valid even if made withoutpermission and delivery of possession in pursuance of such contracts can hardlybe doubted as authorised. the position, in our judgment, would not differin a case where the agreement to sell was valid and sec. 47 which made thepossession delivered in pursuance of such agreement unauthorized has beendeleted. the possession then can be considered as validly delivered andin such a case the doctrine of part performance can validly be invoked.'94. the learned judge having observed that the abovedoctrine applies to the facts of the case proceeded further and observed:'but now that section has been deleted fromthe statute. it should be held that the confirmation already made should bedeemed to be valid in the same way as possession given under such agreementwhen sec. 47 was in force which was held to be unauthorized by variousdecisions, now held by their lordships to be valid possession. on the sameparity of reasoning the confirmation of sale without the necessary sanctionunder sec. 47 should also be held to be valid even after the deletion of sec.47 from the statute book.'95. in arriving at this conclusion, the learned judgerelied on another judgment of a division bench of this court comprising ofjustice gopal rao ekbote and justice a.v.krishna rao, as they then were, inletters patent appeal no. 176 of 1990 dated 9.12.1970 wherein again theirlordships were considering the effect of non obtaining of prior permission fromthe tahsildar before the court auction is confirmed. their lordshipswhile considering the plea of limitation observed:'even otherwise we do not think that there isany substance in this connection. it may be that at the time of theconfirmation of sale section 47 was in force. but it has now been deletedwith the result that under the act no prior permission to sell any agriculturalland is necessary. as a result, the court auction also can take place andthe sale confirmed without obtaining any such permission from any revenueofficer under the tenancy act. even if it is now held that the confirmationwas bad, the matter will have to go before the auction authority because theprevious proceedings cannot be held to be bad. again the authority willmerely confirm because there are no provisions which require now thatpermission should be obtained as was the case when the previous confirmationwas made. it will thus be a futile formality to hold the confirmation badand allow it to be again confirmed as in between third party's interest hasarisen and it would not cause any injury to the judgment-debtor.'96. in other words, their lordships held that sincesection 47 is deleted from the statute book even if the prior confirmation isto be formally set aside for want of permission under section 47, the same willbe confirmed since the embargo stood lifted and the same would only amount toan empty formality. in the result, his lordship heldthat there is no necessity for fresh order of confirmation of court sale evenin a case where an order of confirmation has already been passed when section47 was in force without obtaining necessary sanction.97. another thing which we have to see from the entirecase law referred to supra is that section 50-b comes into operation only whenan alienation has taken place in violation of section 47 of the tenancy act andpossession was delivered. if the possession is not delivered, thequestion of taking objection that the transaction is vitiated does notarise. our view is fortified by the view expressed by the division benchof this court in syed jalal (29 supra) wherein their lordships held:'the contracts of sale was neither prohibitedby section 47 nor invalid in law and what was prohibited was permanentalienation or transfer of agricultural land. hence, the suit for specificperformance of contract of sale without prior permission under section 47 couldbe maintained.'98. from the above, it can be safely presumed thatunless possession is delivered at the time of alienation contemporaneously andif the possession has to be handed over at a later point of time, the obtainingof prior permission as contemplated under section 47 is not required.from the above decisions, the following principlescan be deduced:(a). section 47 of the tenancy act neitherprohibited contract of sale nor declared it as invalid in law and what isprohibited is permanent transfer of agricultural lands and permanent transferis complete when possession is delivered. in other words, what isprohibited under section 47 is delivery of possession of the property withoutobtaining prior permission of the tahsildar.(b). a vendee, who purchased the property withoutprior sanction of the tahsildar, can lay a suit for specific performanceagainst the vendor to obtain prior permission and deliver possession of theproperty.(c). in all these cases cited, the vendors havingentered into agreement of sale started contending that the transaction is hitby section 47 of the act, unlike the case on hand. in the instant case, aperson in illegal occupation of the land started contending that the sale deedexecuted by the original landlord in favour of the appellants is hit by section47 of the act after he was declared as a trespasser.(d). in case of court auctions, the question ofobtaining permission of the tahsildar will arise only after the auction is heldand the purchaser is ascertained before confirmation of the sale. tillthen no permission as contemplated under section 50-b of the act is requiredi.e., the auction held by the court is valid and subsequent proceedings will bevitiated if no permission as required under section 47 is obtained. butas section 47 was deleted from the statute by the time the case came up forconsideration, their lordships observed that even if the confirmation is setaside and the matter is remanded, the court has to confirm the auction sincesection 47 is not on the statute book and it is only an empty formality.having taken the said view, the order of confirmation passed earlier wasupheld.99. the learned counsel for the appellant also cited ajudgment of the privy council in suraj mull (9 supra), for the proposition thatno court can enforce as valid that which competent enactments have declaredshall not be valid, nor is obedience to such an enactment, a thing from which acourt can be dispensed by the consent of the parties, or by a failure to plead,or to argue the point at the outset.100. he also cited another decision of the supremecourt in mannalal (11 supra) for the proposition that where a contract, expressor implied, is expressly or by implication forbidden by statute, no court willlend its assistance to give it effect and what is done in contravention of theprovisions of an act of the legislature cannot be made the subject of anaction.101. since we have taken the view that the alienationitself is not prohibited by section 47 of the tenancy act by placing relianceon a catena of decisions of this court, these decisions have no bearing on thefacts of the case on hand.102. nextly, he placed reliance on a judgment of thebombay high court in dinbai (10 supra) for the proposition that there cannot beany estoppel against law and no person can be precluded from pleading thatcertain orders are invalid and illegal as the question as to whether orders areillegal or invalid is a pure question of law and the question of estoppel doesnot arise in those circumstances. this decision is also of no help to thedefendant for the reason that we have considered his plea on merits and came tothe conclusion that the transaction itself is not hit by section 47 of thetenancy act.103. in the light of the foregoing discussion, we holdthat the sale in favour of muneera sultana, the first plaintiff, on 28.7.1964pendente lite by the ummatul basheera begum, the owner of the land, is not hitby section 47 of the tenancy act as no possession was delivered to the firstplaintiff at that stage. by the time the disputes over the property aresettled, neither section 47 was on the statute book nor the time limit fixedfor getting the alienation coupled with possession validated by following theprocedure prescribed under section 50-b of the act was available. we are,therefore, of the opinion that the transaction is not hit by section 47.for the sake of argument even if it is assumed that it is hit by section 47,the machinery provided under section 50-b for validating the illegaltransaction as valid was not available and it cannot be held that thetransaction has to be treated as void for want of sanction. hence,the judgment and decree passed by the learned single judge in c.c.c.a.no. 28 of1991 is confirmed on a different reasoning. the letters patent appeal no.131 of 1999 is dismissed. there will be no order as to costs.104. l.p.a. no. 134 of 1999:105. this letters patent appeal is filed against thejudgment and decree in c.c.c.a.no. 29 of 1991 wherein his lordship justiceramesh madhav bapat dismissed the appeal and the suit holding that thedefendant perfected his right by adverse possession and the appellants/plaintiffsherein i.e., the respondents in l.p.a. no. 131 of 1999failed to prove their possession over the suit schedule property and he alsorejected the amendment application filed by the appellants/plaintiffs seekingadditional relief of recovery of possession.106. the facts of the case are that the appellantsherein i.e., the respondents in l.p.a.no. 131 of 1999 filed suit in o.s.no.2549 of 1977, re-numbered as o.s.no. 1001 of 1978, for recovery of possessionof about 4000 square yards out of total extent of 9680 square yards, which ispopularly known as bagh ahmadiya gulshan. subsequently, they filed o.s.no. 1174of 1981 against the respondent herein i.e., the appellant in l.p.a.no. 131 of1991 to restrain him and his men from interfering with his possession over anextent of 4680 square yards by contending that when there was scramble forpossession between the parties, the station house officer, kamatipur initiatedproceedings under section 145 of the code of criminal procedure in m.c.no. 13of 1965 and by an order dated 9.2.1966 the viii city magistrate before whom theproceedings have taken place held that the plaintiffs are in possession of theproperty. but the civil court dismissed the suit for injunction rightlyas the respondent herein was found to be in possession of the property even inearlier proceeding. to that extent, perhaps, the civil court isright. in the appeal i.e., c.c.c.a.no. 29 of 1991, the appellant hereinfiled c.m.p.no. 20357 of 1977 seeking amendment of the relief. the learnedjudge dismissed the application by holding that the respondent has perfectedhis title to the property by adverse possession. any suit for recovery ofpossession has to be filed within twelve years from the date of dispossessionas per article 65 of the limitation act.107. the following questions, to our mind, arise forconsideration:1. whether the respondent can raise the plea ofadverse possession?2. whether by allowing the amendment, the verynature of the suit is going to be altered and the rights accrued to therespondent are going to be affected?108. admittedly, till the year 1981, the case of therespondent is that his father and after his death himself were in possession ofthe property as tenants and the owner of the land cannot disturb their possessionas he acquired occupancy rights over the property as protected tenant.that plea was negatived by the common law court as well as revenue court underthe act. for the first time, he set up a plea of adverse possession.the law relating to adverse possession was already referred to, by uswhile considering the case of parties in l.p.a.no. 131 of 1991. to bemore specific and for the sake of clarity, we would like to once again reproducethe principle stated in perry's case (18 supra), which is as under:'it cannot be disputed that a person inpossession of land in the assumed character of owner and exercising peaceablythe ordinary rights of ownership has a perfectly good title against all theworld but the rightful owner. and if the rightful owner does not come forwardand assert his title by the process of law within the period prescribed by theprovisions of the statute of limitation applicable to the case, his right isfor ever extinguished and the possessory owner acquires an absolutetitle.'109. keeping the aforementioned principle in view, wehave no hesitation to hold that the respondent herein was never in possessionof the property in the assumed character of owner and was exercising ordinaryrights of ownership or having title to the property. only in the eventrightful owner fails to assert his title to the property within the prescribedperiod of limitation, the person in possession of the property acquires anabsolute title. since the respondent was always pleading permissive possession,to our mind, he cannot set up the plea of adverse possession as he was never inenjoyment of the suit schedule property exercising rights of ownership to theknowledge of the true owner. the only question to be seen now is whetherthe respondent enjoyed the property for a statutory period of twelve or moreyears as a rightful owner to the knowledge of true owners.according to mr. suresh kumar the proceedingsbefore this court came to an end on 25.3.1969 and as the suit was filed in theyear 1978 the statutory period of twelve years did not expire from the timethis court declared him as trespasser in the first round of litigation, but itis only after the judgment of the civil court on 19.11.1990 in the second roundof litigation for the first time the application for amendment of plaintseeking additional relief was filed by which time the statutory period oftwelve years expired and the respondent herein perfected his title to theproperty.he placed reliance on a decisionof the supreme court in muni lal v. oriental fire & general insurance co.ltd.32 in the above case, the truck insured was lost in an act ofmisfeasance of the driver and then after exchange of notices, the owner of thetruck filed a suit seeking declaration that the appellant is entitled to lossof the truck from the insurance company and that suit was dismissed by thetrial court holding that the suit for mere declaration without consequentialrelief for payment of compensation for the loss of truck or specified amountfrom the respondent was not maintainable. in the appellate court, hefiled an application under order vi rule 17 of the code of civil procedureclaiming the consequential relief of payment of quantified amount for loss oftruck. in paragraph-4 of the judgment, justice k. ramaswamy speaking forthe bench observed:'the question, therefore, is whether theamendment under order 6, rule 17 civil procedure code could be ordered in thisbackground. section 3 of the limitation act speaks of bar of limitationproviding that subject to the provisions contained in s. 4 to 24 (inclusive),every suit instituted, after the prescribed period shall be dismissed, althoughlimitation has not been set up as the defence. in other words, unless there isa power for the court to condone the delay, as provided under s. 4 to 24(inclusive), every suit instituted after the prescribed period shall bedismissed although limitation has not been set up as the defence. order 6, rule17 civil procedure code envisages amendment of the pleadings. the court may atany stage of the proceedings allow either parties to alter or amend hispleadings in such manner and on such terms as may be just and all suchamendments shall be made as may be necessary for the purpose of determining thereal question of controversy between the parties. therefore, granting ofamendment on such terms is also a condition for the purpose of determining thereal question in controversy between the parties. the amendment to grantconsequential relief sought for in this case, is as envisaged in proviso tosection 34 of the specific relief act, 1963. that relief was, however,available to him, to be asked for, when the suit was filed.'110. having considered the various aspects of the case,the supreme court observed:'on a consideration of this case in itsproper perspective, we are of the view that granting of amendment of plaintseeking to introduce alternative relief of mandatory injunction for payment ofspecified amount is bad in law. the alternative relief was available to beasked for when the suit was filed but not made. he cannot be permitted to amendthe plaint after the suit was barred by limitation during the pendency of theproceeding in the appellate court or the second appellate court.'111. countering the arguments of the learned counsel,counsel for the appellant cited the following decisions:112. in radhika devi v. bajrangi singh, : [1996]1scr768 , the apexcourt observed that the amendment of the plaint, no doubt, is normally grantedand only in exceptional cases where the accrued rights are taken away byamendment of the pleading, the court would refuse the amendment, by relying onthe observations of the supreme court in laxmidas dahyabhai kabarwala v.nanabhai chunilal kabarwala, : [1964]2scr567 , which are as under:'it is, no doubt, true that, save inexceptional cases, leave to amend under order 6, rule 17 of the code willordinarily be refused when the effect of the amendment would be to take awayfrom a party a legal right which had accrued to him by lapse of time. but thisrule can apply only when either fresh allegations are added or fresh reliefssought by way of amendment. where, for instance, an amendment is sought which merelyclarifies an existing pleading and does not in substance add to or alter it, ithas never been held that the question of a bar of limitation is one of thequestions to be considered in allowing such clarification of a matter alreadycontained in the original pleading. the present is a fortiori so. thedefendants here were not seeking to add any allegation nor to claim any freshrelief which they had prayed for in the pleading already filed.'113. in p.h. patil v. k.s. patil, : [1957]1scr595 , their lordships ofthe supreme court expressed that the principles enunciated by justice batchelorin his judgment in kisandas rupchand v. rachappa vithoba, 33 bombay 644 are correctprinciples in considering the application for amendment of the pleadings, whichare to the following effect:'all the pleadings ought to be allowed whichsatisfy the two conditions (a) not working injustice to other side, and (b) ofbeing necessary for the purpose of determining the real questions incontroversy between the parties....but i refrain from citing furtherauthorities, as, in my opinion, they all lay down precisely the samedoctrine. that doctrine, as i understand it, is that amendment should berefused only where the other party cannot be placed in the same position as ifthe pleading had been originally correct, but the amendment would cause him aninjury which could not be compensated in costs. it is merely a particularcase of this general rule that where a plaintiff seeks to amend by setting up afresh claim in respect of a cause of action which since the institution of thesuit had become barred by limitation, the amendment must be refused; to allowit would be to cause the defendant an injury which could not be compensated incosts by depriving him of a good defence to the claim. the ultimate testtherefore still remains the same: can the amendment be allowed withoutinjustice to the other side, or can it not?'114. in b.k.n.pillai v. p. pillai, : air2000sc614 , their lordships ofthe apex court held:'the purpose and object of order 6 rule 17civil procedure code is to allow either party to alter or amend his pleadingsin such manner and on such terms as may be just. the power to allow theamendment is wide and can be exercised at any stage of the proceedings in theinterests of justice on the basis of guidelines laid down by various highcourts and this court. it is true that the amendment cannot be claimed as amatter of right and under all circumstances. but it is equally true that thecourts while deciding such prayers should not adopt hyper technical approach. liberalapproach' should be the general rule particularly in cases where the other sidecan be compensated with the costs. technicalities of law should not bepermitted to hamper the courts in the administration of justice between theparties. amendments are allowed in the pleadings to avoid uncalled formultiplicity of litigation.'115. the said decision was followed in ragu thilakd.kohn v. s.rayappan, (2001) 2 scc 472. in vineet kumar v. mangal sain, : [1984]2scr333 their lordships of thesupreme court held:'normally, amendment is not allowed if itchanges the cause of action.but it is well recognised thatwhere the amendment does not constitute an addition of a new cause of action,or raises a new case, but amounts to no more than adding to the facts alreadyon record, the amendment would be allowed even after the statutory period oflimitation.'116. in k. chinna biddamma v. j. krishnama naidu, : 2001(1)ald304 ,s.b.sinha, c.j., as he then was, held that amendment of plaint seekingadditional relief of declaration of title in a suit for permanent injunctioncannot be refused on the ground of laches and that even if the relief is barredby limitation, it could be included by way of amendment. in taking the saidview, his lordship relied on the judgment of the supreme court in leach andco., ltd. v. m/s. jardine skinner and co., : [1957]1scr438 117. in om prakash gupta v. ranbir b. goyal, : [2002]1scr359 , theirlordships of the supreme court held:'the ordinary rule of civil law is that therights of the parties stand crystalised on the date of the institution of thesuit and, therefore, the decree in a suit should accord with the rights of theparties as they stood at the commencement of the lis.however, thecourt has power to take note of the subsequent events and mould the reliefaccordingly subject to the following conditions being satisfied: (i) that therelief, as claimed originally has, by reason of subsequent events, becomeinappropriate or cannot be granted; ii) that taking note of such subsequentevent or changed circumstances would shorten the litigation and enable completejustice being done to the parties and iii) that such subsequent event isbrought to the notice of the court promptly and in accordance with the rules ofprocedural law so that the opposite party is not taken by surprise.'118. in pasupuleti venkateswarlu v. motor and generaltraders, : [1975]3scr958 , while considering the plea of taking subsequent events for mouldingthe relief in a matter arising under the rent control act, his lordship justicekrishna iyer observed:'it is basic to our processual jurisprudencethat the right to relief must be judged to exist as on the date a suitor institutesthe legal proceeding. equally clear is the principle that procedure is thehandmaid and not the mistress of judicial process.if a fact,arising after the lis has come to court and has a fundamental impact on theright to relief or the manner of moulding it, is brought diligently to thenotice of the tribunal, it cannot blink at it or be blind to events whichstultify or render inept the decretal remedy. equity justifies bending therules of procedure where no specific provision or fair play is violated, with aview to promote substantial justice subject - of course, to the absence ofother disentitling factors or just circumstances. nor can we contemplateany limitation on this power to take note of updated facts to confide it to thetrial court. if the litigation pends, the power exists, absent otherspecial circumstances repelling resort to that course in law or justice.rulings on this point are legion, even as situations for application isequitable rule are myriad.'119. from the above decisions, it could be seen thatthe rights of the parties stand crystalised on the date of institution of thesuit and the decree in a suit should accord with the rights of the parties asthey stood at the commencement of the suit. when once theamendment is allowed, it dates back to the date of filing of the suit.further, even if the amendment is time barred or belated one, the court shouldnot blink in its duty in moulding the relief by amending the rules of procedureif no specific provision of law or rule of fair play is violated as it promotessubstantial justice.120. in the case on hand, both parties knew pretty welltheir claims over the suit schedule property. in fact, the defendant wasdeclared as a trespasser in the earlier proceedings by this court and he is inoccupation of the property unauthorisedly.for reasons bestknown to the counsel appearing for the plaintiffs herein, they have chosen tofile the suit for injunction though the civil court recorded a finding that thedefendant is in possession of the property as a trespasser. the mistake committedby the counsel was realized only after the judgment of the court below.it is true that the defendant was in unauthorized possession of the propertyafter the tenancy court refused to grant occupancy certificate in the year 1974and the suit for injunction was filed in the year 1978. had they soughtfor relief of recovery of possession, the defendant would have no answer to theclaim because he was declared a trespasser already, except the only plea thatwas raised in the other suit that the alienation in favour of the firstplaintiff was hit by section 47 of the tenancy act. now we have taken the viewthat the alienation in the year 1964 is not hit by section 47 of the tenancyact and the possession of the property was not delivered to the plaintiffs andthey purchased the property pendente lite i.e., subject to the result of civilproceedings pending at that time. by the time the civil court proceedingsended in their favour, section 47 was not on the statute book and as such itcannot be held that the transaction is void or illegal. it is true thatthe plaintiffs woke up only after the suit for injunction was dismissed and apetition seeking additional relief of recovery of possession was filed. we are afraid, if we do not allow the amendment, grave injusticewould be caused to the plaintiffs, who are the real owners of the property anda trespasser would knock away the property by succeeding ontechnicalities. if such a thing is allowed to take place, it will be aslur on the system of adjudicatory process. as their lordships of thesupreme court observed that to do substantial justice amendment has to be allowedif the loss caused cannot be compensated in terms of money and if the otherparty is not going to suffer. hence, as observed by justicekrishna iyer that the procedural laws should be handmaid but not the mistressof judicial process and the court shall not blink or be blind to the eventswhich stultify or render inept the decretal remedy and equity justifies inblending the rules of procedure where no specific provision or fair play isviolated with a view to promote substantial justice. we respectfully follow theobservations of his lordship justice krishna iyer to render substantial justicebetween the parties. further it can also be seen that by allowing theamendment, no fresh affidavits are needed, no additional issues need be framedand no further evidence be let in as the earlier suit filed by the appellantfor recovery of possession and this suit for injunction were clubbed togetherand common judgment was rendered by the court below. when once theplaintiffs succeeds in the first suit, the same principle has to be applied inthe second suit also. had the advocate appearing for the plaintiffsobserved minimum professional knowledge, his clients would not have been placedin such an awkward situation and their rights would not have been in jeopardy. for the mistake committed by the advocate, we feel that the partycannot be penalized. on this count also, we would liketo allow the amendment petition for rendering substantial justice between theparties and to uphold the majesty of law and convey a message to theunscrupulous litigants that they cannot run away from the courts by takingadvantage of the procedural laws.121. any prudent person having lost case would havehanded over the possession to the real owner. but in this case, thedefendant having lost the suit as well as the proceedings under the tenancy actin 1974 did not hand over the possession and for that reason the plaintiffshave to once again approach the civil court and start the litigationafresh. from the above, the conduct of the defendant in squatting overthe property even after he was declared as trespasser cannot beappreciated. for the said reason we allowed the amendment application.122. for the foregoing discussion, we allow theapplication filed under order vi rule 17 of the code of civil procedure seekingadditional relief of recovery of possession. once theamendment is allowed to be carried out, the natural consequences will be thatthe result in the first appeal shall follow the suit. in other words, theappellants/plaintiffs have to succeed in l.p.a., as there is no other defencefor the defendant to contest either the suit or at any stage of proceedingstill the stage of l.p.a. accordingly, we set aside the judgment anddecree of the learned single judge in c.c.c.a.no. 29 of 1991 and allowl.p.a.no. 134 of 1999.123. counsel for the defendant/trespasser contends thatthere is a standing crop and he requires time to hand over vacant possession ofthe land, but the counsel for the land owner submits that there is no crop.without going into this controversy, we are inclined to give twomonths time to vacate the land and hand over the vacant possession of theproperty to the owner of the property. we are under the impression that thecounsel for the defendant/trespasser is seeking time for eviction so as to goto supreme court. when asked, the learned counsel states that in the event oflosing the case in supreme court, his client is prepared to vacate the premisesand hand over the vacant possession the very next day without contesting theexecution petition. on this undertaking, we are inclined to give twomonths time from the date of receipt of a copy of this order for handing overvacant possession of the property to the owner of the land. if hefails to get any order from the supreme court, he shall vacate the property andhand over possession on the expiry of the time granted by this court. therewill be no order as to costs.

Judgment:

B.S.A. Swamy, J.

1. These two appeals involving commonquestions of law and facts arise out of a common judgment passed by a learnedsingle Judge of this Court and they can be disposed of by a common judgment.

2. The parties herein are referred toas they are arrayed in the suits for the sake of convenience.

3. In these two appeals, this Courtis called upon to decide the effect of deletion of Section 47 of the AndhraPradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (Act No. XXIof 1950) - hereinafter referred to as 'the Tenancy Act'. The main issueto be decided in these appeals is whether both the suits (O.S.Nos.1001 of 1978and 1174 of 1981) filed by the plaintiffs are liable to be dismissed as thesuit transaction is hit by Section 47 of the Tenancy Act.

FACTUAL BACKGROUND:

4. The defendant in both the suits,Mohd. Qutubuddin filed O.S.No.38 of 1963 on the file of the Munsif Magistrate(West), Hyderabad against Syed Basharat Ahmed and his wife Smt. UmmatulBasheera Begum for permanent injunction by contending that he obtained lease ofthe suit schedule property in the year 1949 and that he was a protected tenant.

5. During the pendency of the suit, Smt. Ummatul Basheera Begum wife ofSyed Basharat Ahmed sold the property to one Smt. Muneera Sultana, firstplaintiff, under a registered sale deed dated 28.7.1964 (Ex.A.2). By ajudgment and decree dated 30.11.1964, the said suit filed by the defendant wasdismissed holding that he was in unlawful possession and the aspect ofprotected tenancy could not be gone into by the Civil Court. He carriedthe matter in appeal, by filing A.S.No.76 of 1965 on the file of the Court ofthe I Additional Chief Judge, City Civil Court, Hyderabad and the said appealwas allowed by judgment and decree dated 16.9.1965 to the extent of protectinghis possession as he is in possession of the property and further holding thatas he failed to prove that he is a protected tenant, he is only atrespasser. Basharat Ahmed died on 5.10.1965 after the judgment inA.S.No.76 of 1965. Then the wife of Basharat Ahmedfiled Second Appeal No.320 of 1966 in this Court. During the pendency ofthe Second Appeal, she filed C.M.P.No. 3179 of 1966 to bring on record Smt.Muneera Sultana and her power of attorney, Sri A. Tuljasingh, as additionalappellants in the Second Appeal by stating that the land in question was soldto them and that petition was allowed. By judgment and decree dated25.3.1969 the Second Appeal was allowed by this Court holding that thepossession of the defendant is that of a trespasser and he is not entitled toinjunction against the real owners. In the normal course, theplaintiffs would have got this decree executed and recovered possession byinitiating execution proceedings. Perhaps, on legal advice, the plaintiffsrepresented by their power of attorney filed a suit in O.S.No. 2549 of 1977 onthe file of the Court of the IV Additional Judge, City Civil Court, Hyderabadagainst the defendant, who was declared as a trespasser in the earlierproceedings, for recovery of possession of 4000 Square yards out of the totalextent of 9680 square yards bearing Municipal No. 19-3-744 corresponding to OldNo.134/3 situated outside Gazibanda, Hyderabad and for permanent injunctionrestraining the defendant from interfering with the possession of theplaintiffs over the remaining extent of 5680 square yards.Subsequently, the said suit was re-numbered as O.S.No. 1001 of 1978.During the pendency of the suit, the plaintiffsfiled another suit in O.S. No. 1424 of 1978 on the file of the Court ofIV Assistant Judge, City Civil Court, Hyderabad against the same defendantseeking permanent injunction restraining him from cutting any trees or grass orploughing or cultivating any portion of 4000 square yards and also restrainingthe defendant from interfering with the possession of the plaintiffs over theremaining extent of 5680 square yards and the same was re-numbered as O.S. No.1174 of 1981. Both the suits were clubbed together and by a commonjudgment and decree dated 19.11.1990, the trial Court dismissed the suitsholding that Ex.A-2 sale deed dated 28.7.1964 is void and unenforceable forwant of sanction by the Tahsildar under Section 47 of the Tenancy Act andvalidation under Section 50-B of the Tenancy Act and no title could be conveyedby way of a void document.

6. Aggrieved by the said judgment anddecree, plaintiffs 2 and 3 preferred C.C.C.A.Nos. 28 and 29 of 1991 before thisCourt. During the pendency of the appeals, they have also filed C.M.P.No. 20357 of 1997 in CCCA.No. 29 of 1991 seeking amendment of the plaint byadding the relief of recovery of possession in respect of land measuring 5680square yards. A learned single Judge of this court, by a common judgmentand decree dated 19.3.1995 allowed C.C.C.A. No.28 of 1991 by setting aside thejudgment and decree of the trial court holding that no permission of theTahsildar is required as Section 47 of the Tenancy Act was deleted from thestatute book by the time the suit was instituted and dismissed C.C.C.A. No. 29of 1991 by confirming the judgment and decree of the trial court in O.S.No.1174 of 1981 holding that the defendant perfected his title to the property byadverse possession. The learned single Judge also dismissed theapplication filed for amendment of the plaint.Aggrieved by the said judgment and decree of thelearned single Judge, the plaintiffs preferred L.P.A.No. 134 of 1999 and thedefendant preferred L.P.A.No. 131 of 1999 to the extent it went against theirinterests.

SUBMISSIONS:

Sri M.V.S. Suresh Kumar, learnedcounsel appearing for the defendant strenuously contends that since thetransaction had taken place in the year 1964 at the time when Section 47 of theTenancy Act was on the statute book, no valid title could have been conveyed tothe plaintiffs by the owners of the suit schedule land.

7. Sri M. Rama Rao, the learned counsel for theplaintiffs, on the other hand, contends that since Section 47 is deleted fromthe statute book by the time the suit was filed, the suit transaction cannot betreated as void on the ground that prior permission of the Tahsildar forconveyance of the property was not obtained. Both the counsel relied on severaljudgments in support of their contentions and as there was some ambiguity inthe legal position, we heard the arguments advanced by both the counsel atlength.

8. Before considering the contentions raised onbehalf of the parties, we are inclined to refer to the objects for which theTenancy Act was enacted and also the scheme of the Act along with theamendments made to the Tenancy Act from time to time.

9. The Tenancy Act was brought on the statute bookwith the object of -- i) regulating the relations of landholders and tenants ofagricultural land and alienation of such land; ii) preventing the landholdersfrom sub-dividing the agricultural holdings; iii)assuming the management of the agricultural lands in certain circumstances; andiv) introducing cooperative farms.

10. Section 2 (o) of the Tenancy Act defines'permanent alienation' as to include any sale, exchange or gift andany transfer of a right of occupancy or of the patta of a holding but does notinclude any disposition by will. From this it is clear that even if a rightof occupancy is transferred, it is considered as permanent alienation.

11. Chapter II of the Tenancy Act deals with familyholdings. Chapter III deals with tenants and their rights, the maximumrents payable by them and the circumstances under which the tenancy can be terminated. Chapter IV deals with protected tenants. Chapter V deals withrestrictions on transfers of agricultural land. Chapter VI dealswith management or acquisition of uncultivated, improperly cultivated orsurplus lands. Chapter VII deals with the provisions of fragmentation andconsolidation of holdings. Chapter VIII deals withcooperative farms. Chapter IX deals with constitution of Tribunal,procedure and powers of authorities, appeal, etc. Chapter X dealswith offences and penalties. Chapter XI deals with miscellaneousprovisions.

12. The scheme as disclosed by the provisions of theAct is to regulate the relationship between landholders and tenants and it doesnot affect the rights inter se between two persons setting up rights ofownership to a particular land or a dispute between an owner and a trespasseror a person other than a tenant. The main purpose of bringing thisenactment is to see that no landholder disposes the land without retaining theland less than the family holding and to protect the possession of theprotected tenants from the unscrupulous landholders and to see that alienationsare not made in contravention of the provisions of the Act. It is also importantto note that at the time of introducing the legislation, the Government inoffice was thinking of formation of cooperative farms.

13. The Tenancy Act came into force on11.6.1950. At that time, Section 47 did not find place and it wasincorporated by Amendment Act No. 23 of 1951. Section 47 of the TenancyAct read as under:

'(1). Notwithstanding anything contained inany other law for the time being in force or in any decree or order of a Court,no permanent alienation and no other transfer of agricultural land shall bevalid unless it has been made with the previous sanction of the Tahsildar:Provided that the Tahsildar may declare apermanent alienation or any other transfer of agricultural land to be valid ifthe permanent alienation or transfer took place before the commencement of theHyderabad Tenancy and Agricultural Lands (Amendment) Act, 1954 and possessionof the land transferred was given to the vendee before such commencement ifapplication for sanction is made within one year after such commencement.

(2). Applications for such previous sanction shallbe made and disposed of in accordance with such procedure as may beprescribed.'

14. Again by Amendment Act No.3 of 1954, a proviso wasincorporated to Section 47 and the word 'Collector' was substituted by'Tahsildar'. As per sub-section (2) of Section47, applications for previous sanction that were made shall be disposed of inaccordance with the procedure that may be prescribed. To our mind, itappears, Section 48 was also incorporated along with Section 47 specifyingrestrictions on grant of sanction. As these provisions underwent severalchanges, we would like to refer the purport of these two provisions. Asper Section 48, Tahsildar is not expected to grant prior sanction if the landheld by the alienor or transferor is left with less than a family holding afteralienation. Under the proviso to Section 48,this requirement was dispensed with in the case of an alienor, who is not anagriculturist or intends to give up the profession of agriculture or alienatingthe whole of the land in his possession or transferring the land for good andsufficient reasons retaining a basic holding or the area of the land held bythe alienee or transferee after alienation or transfer would exceed three timesthe family holding so determined after excluding the land held by him, which isin possession of a protected tenant and relinquishes his right of resumption ofland owned by him for his personal cultivation. Again the Government wasgiven power to relax these conditions. Likewise, if the land is undermortgage, the Tahsildar is not expected to grant sanction for alienation.Under Section 48-A, if a protected tenant acquired a right of ownership underSection 38 or Section 38-D or Section 38-E and if eight years havenot elapsed, the Tahsildar may sanction permission on payment of compensationto the protected tenant a sum equivalent to the reasonable price so determinedso on and so forth.

15. Again, by Act No.6 of 1964, Section 50-B wasincorporated - a) validating the alienations and other transfers ofagricultural lands that have taken place after 10.6.1950 but before A.P.Ceiling on Agricultural Holdings Act, 1961 (hereinafter referred to as 'theAgricultural Holdings Act') came into force and where possession of such landwas given to alienee or transferee before the date the Act came into force; andb) on or after coming into force of the Agricultural Holdings Act but beforethe date of commencement of the A.P. (Telangana Area) Agricultural Lands (ThirdAmendment) Act, 1969 and where possession of land was given to such alienee ortransferee before such commencement and such alienation or transfer is notinconsistent with the provisions of the Agricultural Holdings Act and thealienee or transferee has to approach the Tahsildar for a certificate declaringthat such alienation or transfer is valid within the period prescribed for thepurpose.

16. Under sub-section (2) of Section 50-B, on receiptof such application, the Tahsildar, after making such enquiry and aftersatisfying himself that the consideration if any payable to the alienor ortransferor or has been paid or deposited within such time and in such manner asmay be prescribed, require the alienee or transferee to deposit in the officeof the Tahsildar an amount equivalent to the registration fee and stamp dutythat would have been payable had the alienation or transfer been effected byregistered document in accordance with the provisions of the IndianRegistration Act. Under sub-section (3) of Section 50-B, the validationof any alienation or transfer of any land shall not affect the right accrued toany person under Section 37-A or Section 38 or Section 38-E of the Act.Under sub-section (4) of Section 50-B, the Collector may suo motu at any timecall for the record relating to any certificate issued or proceedings taken bythe Tahsildar under this Section to satisfy himself about the legality andpropriety of the certificate issued. The time limit prescribed forvalidation of the alienation seemed to have been extended from time to time andthe last extension expired on 31.3.1972.

17. A combined reading of these provisions would giveus an impression that the main purpose and intendment of incorporating Section47 in the Tenancy Act is to see that the landholders shall not alienate theland as the Government is contemplating to introduce ceilings on agriculturalholdings in the erstwhile Telangana State. The intention of the Legislaturecan be gathered from the provisions of Section 50-B of the Tenancy Act. Admittedly, the Tenancy Act came into force on 11.6.1950 and theAgricultural Holdings Act came into force in the year 1961. By that timeseveral alienations or transfers have taken place and in fact after theenactment of Agricultural Holdings Act also, some of the landholders seemed tobe alienating the land apprehending further reduction in the land holdings. Hence, under clause (b) of sub-section (1) of Section 50-B, even thealienations made after the Agricultural Holdings Act prior to Third AmendmentAct, 1969 were also held to be valid provided the transfer or alienation is notinconsistent with the provisions of Agricultural Holdings Act. Likewise,it is also seen from Section 48, the Tahsildar is not expected to grant priorsanction if the holding of the alienor is reduced to less than that of a familyholding unless the alienor is giving up the profession of agriculture and theholding of the alienee is not exceeding three times after excluding the landheld by him under the possession of protected tenant and he relinquishes theright of resumption. We should also keep in mind thatin the subsequent amendments made to the Tenancy Act, the Government conferredtitle on protected tenants and they were declared as owners of the land.

18. From the above it is clear that the intention ofthe Legislature in incorporating Section 47 is to see that the landholder shallnot alienate the land to his detriment by not retaining a minimum extent ofland i.e., the family holding and that the holding of the alienee shall notexceed more than three times of the land holding specified under Section 4 ofthe Tenancy Act and also to see that the provisions of the AgriculturalHoldings Act are not circumvented. It is also to be noted that Sections47 and 50-B are on the statute book simultaneously till Sections 47 and 48 aredeleted by Act No.12 of 1969. A combined reading of these two provisionsgives us an impression that the alienation that had taken place incontravention of Section 47 i.e., without obtaining prior sanction of theTahsildar, is void. After incorporating Section 50-B in the Tenancy Act,the transaction became voidable at the instance of either the landholders orthe tenant on the land or the Government, but by no others. When once itbecomes voidable transaction, at the option of the parties it can be treated asa valid alienation.

19. Admittedly, in this case, the alienation seemed tohave taken place after introduction of Section 50-B i.e., on 28.7.1964.Nextly, it is seen that in the earlier litigation, during the pendency of theSecond Appeal, the original land owner impleaded the plaintiffs in this suit asadditional appellants in S.A.No.320 of 1966 and at that time the defendant didnot raise any contention that the plaintiffs cannot be brought on record asadditional appellants as the transaction being void and the judgment wasrendered declaring him as a trespasser in the presence of the plaintiffs andthat became final.

20. After the earlier proceedings attained finality,the defendant filed a petition before the Revenue Divisional Officer, WestDivision, Hyderabad in File No.4/2/104/70 to declare him as a protected tenantover the suit schedule property. In that petition, the plaintiffs filedan application seeking permission of the Revenue Divisional Officer to getthemselves impleaded as party respondents and the same was allowed on 5.7.1965and the defendant was directed to amend the petition before 16.8.1965. Asthe defendant failed to amend the petition, the Revenue Divisional Officerdismissed the petition and the defendant carried the matter in appeal to theJoint Collector who allowed the same by order dated 10.1.1967 directing theRevenue Divisional Officer to give an opportunity to the petitioner to amendthe plaint and proceed with the case. Though the defendant filed the amendedpetition on 12.6.1967, he did not produce any evidence in support of his onlyand specific plea that he is a protected tenant and ultimately the saidpetition was dismissed and that order became final. Even at the stage when theplaintiffs filed implead petition or after the petition was dismissed, thedefendant did not choose to question the correctness of the order passed by theRevenue Divisional Officer in any competent forum and it has become final.

21. Now we have to consider the effect of deletion ofSection 47 from the statute in the light of observations made in the judgmentsreferred supra as well as other decisions which were cited by the counsel forthe plaintiff.

22. In NATHULAL v. PHOOLCHAND, : [1970]2SCR854 , their lordships of theSupreme Court while considering a similar provision, viz., Section 74 of theMadhya Bharat Land Revenue and Tenancy Act, 1950 wherein the land could not besold to an alienee, not being an agriculturist, without sanction of the StateGovernment, held that though there was no condition in the contract that thesanction as required under Section 74 could be obtained, it must be impliedthat the transferor will obtain the sanction of the authority concerned sinceit is a well settled proposition that where by a statute, property was nottransferable without the permission of the authority, the agreement to transferthe property must be deemed subject to implied condition that the transferorwill obtain the sanction from the authority concerned. In fact, the saidjudgment was considered by their lordships in M. POCHAMMA (27 infra) and vitaldifferences between the provisions of the Madhya Bharat Land Revenue andTenancy Act and the A.P. (Telangana Area) Tenancy and Agricultural Lands Actwere pointed out in paragraph 31 of the judgment as hereunder:

'1. While under Section 74 of the MadhyaBharat Act no land could be sold to an alienee, not being an agriculturist,without sanction of the State Government, Section 47 of the A.P. Act clearlydeclared that no permanent alienation or other transfer of any agriculturalland shall be valid, unless it has been made with the previous sanction of theTahsildar.

2. There is no provision in the Madhya Bharat Actwhich corresponds to Section 50-B of the Hyderabad Tenancy Act, under whichvalidation of transfers could be effected even later, once again emphasizingthat validation of the transfer was essential.

3. Since there was possibility in NATHULAL (16supra) for securing permission and thus complying with Section 70 (4) of theMadhya Bharat Act, Section 53-A was presumably held to safeguard the possessionof the transferee. But in the facts of the case,their lordships observed that the possibility of securing sanction came to anend by 31.3.1972 and after that there was no possibility of validating the saletransactions.'

23. In QUDRAT ULLAH v. BAREILLY MUNICIPALITY, : [1974]2SCR530 , theirlordships of the Supreme Court considered the additional ground raised by therespondent-municipality that after repeal of Uttar Pradesh (Temporary) Controlof Rent And Eviction Act, 1947 and introduction of U.P. Urban Buildings(Regulation of Letting, Rent and Eviction) Act, 1972 wherein the buildingsowned and vested in the State and Central Government and local authorities areexempted from the provisions of the Act under Section 2 of the said Act, theBoard is entitled to an ejectment decree even if the earlier contracts are heldto be leases in favour of the appellant and the effect of the repeal of theearlier Act. Counsel for the Municipality contended that the effect ofrepeal of a statute in the absence of saving clause is that it has to beconsidered as if the statute, so repealed, has never existed. Inparagraph-24 of the judgment, their lordships formulated the question to beanswered to the following effect:

'The only further question iswhether it is permissible for this Court to take note of the extinguishment ofthe statutory tenancy at this stage and grant relief to the appellantaccordingly.'

24. Their lordships in paragraph-27 held as under:

'From what we have statedabove, it follows that the argument of any vested right in the defendant beingtaken away does not hold good; nor is there any foundation for the contentionthat the later Act is being applied retrospectively. All that we hold is (a)that a disability of the plaintiff to enforce his cause of action under theordinary law may not necessarily be transmuted into a substantive right in thedefendant, (b) that rights of a statutory tenant created under a temporarystatute, as in this case, go to the extent of merely preventing the eviction solong as the temporary statute lasts, (c) that the provisions of S. 43 do notpreserve, subsequent to repeal, any right to rebuff the plaintiff's claim foreviction, and (d) that S. 6 of the General Clauses Act does not justifyanything larger or for any time longer than S. 2 of the Act confers or lasts.It is appropriate for a court to do justice between parties to the litigationand in moulding the relief in the light of the subsequent developments, to takenote of legislative changes. A court of justice should, if it could, adjudicatefinally and not leave the door ajar for parties to litigate again. In thepresent case, it is not seriously disputed that if the plaintiff were to suefor recovery of possession today, the Rent Control Law does not stand in theway. Therefore, it is manifestly a measure of doing justice between the partiesand ending litigation, which has seen two decades pass, to conclude it here bytaking cognizance and adjusting the relief in the light of the later Act andrepeal of the earlier Act. Nevertheless, it is contended that the present suitcannot be decreed in view of the provisions of the U. P. Public Premises(Eviction of Unauthorised Occupants) Act, 1972.'

25. In arriving at the above view, their lordshipsrelied on a decision of the Supreme Court in INDIRA SOHANLAL v. CUSTODIAN OFEVACUEE PROPERTY, DELHI, : [1955]2SCR1117 wherein the Hon'ble Supreme Court observed that'what in effect, learned counsel for the appellant contends for is not the'previous operation of the repealed law' but the future operation of theprevious law' and also referred to other authorities, including thedecision of the Federal Court in LACHMESHWAR PRASAD v. KESHWAR LAL, AIR 1941 FC 5.

26. From the above, it is seen that unless therepealing statute provides saving clause protecting the rights accrued underthe repealed Act, in this case disability has to be considered as if thestatute, so repealed, has never existed.

27. In INDIA TOBACCO CO. LTD. v. THE COMMERCIAL TAXOFFICER, BHAVANIPORE, : [1975]2SCR612 , their lordships of the Supreme Court considered theeffect of repeal of an Act in paragraphs 15, 16 and 17 of the judgment asunder:

'The general rule of construction is that therepeal of a repealing Act does not revive anything repealed thereby. But theOperation of this rule is not absolute.

It is subject to the appearance of a'different intention' in the repealing Statute. Again such intentionmay be explicit or implicit. The questions, therefore, that arise for determinationare: Whether in relation to cigarettes, the 1941 Act was repealed by the 1954Act and the latter by the 1958 Act? Whether the 1954 Act and 1958 Act wererepealing enactments Whether there is anything in the 1954 Act and the 1958Act indicating a revival of the 1941 Act in relation to cigarettes?It is now well settled that 'repeal'connotes abrogation or obliteration of one Statute by another, from the Statutebook as completely as if it had never been passed'; when an Act isrepealed, 'it must be considered (except as to transactions past andclosed) as if it had never existed'. (Per Tindal, C.J. in Kay v. Goodwinand Lord Tenterdon in Surtees v. Ellison cited with approval in State of orissav. M. A. Tulloch & Co.).

Repeal is not a matter of mere form but one ofsubstance, depending upon the intention of the Legislature. If the intentionindicated expressly or by necessary implication in the subsequent Statute wasto abrogate or wipe off the former enactment, wholly or in part, then it wouldbe a case of total or pro tanto repeal. If the intention was merely to modifythe former enactment by engrafting an exception or granting an exemption, or bysuper-adding conditions, or by restricting, intercepting or suspending itsoperation, such modification would not amount to a repeal (see Craies onStatute Law, 7th Edn. pp. 349, 353, 373, 374 and 375; Maxwell's Interpretationof Statutes, 11th Edn. pp. 164, 390 based on Mount v. Toylor; Southerland'sStatutory Construction 3rd Edn. Vol. I, paragraphs 2014 and 2022, pp. 468 and490). Broadly speaking, the principal object of a repealing and amending Act isto 'excise dead matter, prune off superfluities and reject clearly inconsistentenactments' see Mohinder Singh v. Mst. Harbhajan Kaur.'

28. From the above it is seen that when once an Act isrepealed, it does not revive anything thereby and it amounts as if it had neverbeen passed, unless an intention is expressly or impliedly provided in the Actrepealing the earlier Act. The intention is to be gathered from thesubsequent statute. In the absence of any intention, the subsequent statute isto abrogate or wipe of, the former enactment wholly or in part in which case itis a pro tanto repeal.

29. In this case, the repeal is simpliciter withoutpreserving prohibition incorporated in Section 47 any longer and it amounts toa total repeal. In other words, the statute as ifwas not in existence. If we examine the facts of thecase, though the alienation is at a time when Section 47 and Section 50-B wereon the statute the possession could not be delivered because of the litigationpending in the civil court. By the time the proceedings in the CivilCourt and Revenue Court came to an end and rights of the parties crystallizednot only Sec. 47 was deleted from the statute but also the procedurecontemplated for getting the transfer validated expired.

30. We have referred to the decision in PARVATHAMMA (20 infra) wherein theirlordships considering the effect of confirmation of sale in the auctionconducted by Court without obtaining prior sanction of the Tahsildar and havingtaken note of the repeal of the section, their lordships observed:'Section 47 and other connected provisions of the main Act have beenomitted with the result that no sanction is at all necessary before confirmingthe sale in favour of the auction purchaser'.

31. In a well considered judgment in S.A. GAFFAR (30infra), his lordships Justice Venkatarama Sastry after considering variousdecisions held that 'confirmation already made should be deemed to bevalid in the same way as possession given under such agreement when Section 47was in force, which was held to be unauthorised by various decisions is nowheld by their lordships to be valid possession. On the same parity ofreasoning, the confirmation of sale without the necessary sanction underSection 47 should also be held to be valid even after the deletion of Section47 from the statute book'.

32. In S. RAFIUDDIN v. S. ASADUDDIN, 1984 (2) APLJ 75, a Division Benchof this Court held that even if a prohibition as contained in Section 47 of theAct is there at the time when unregistered sale deed(Ex. B-1) was obtained, no sanction for finalisation ofregistration of Ex. B-1 was necessary since Section 47 was deleted by the timethe suit was instituted.

33. In G.V.K. RAMA RAO (26 infra), a learned singleJudge of this Court having referred to Full Bench judgment in K. PARVATHAMMA(20 infra) held:

'I carefully perused the above cases and I amof the view that the ratio laid down by this Court in all the judgmentsincluding that of Full Bench is that in view of repeal of Section 47 of TenancyAct with effect from 18.3.1969 all previous transactions are in no way effected(sic., affected). Ex. A-1 sale deed dated 20.3.1967is, therefore, a valid transaction. Question No. 2 is thus held infavour of the plaintiffs.'

34. But the very learned Judge while considering thecase of a protected tenant in B. JANGAIAH (25 infra) held that the view takenby him in the above case was not correct. But we have seen the facts inthe cases of JANGAIAH (25 infra) and G.V.K. RAMA RAO (26 infra).Admittedly, the JANGAIAH's case (25 infra) relates to the rights of a protectedtenant and as observed from the preamble of the Act, it is clear that Section47 is intended mainly i) to see that agrarian reforms that are in theoffing are not defeated by unscrupulous landlords, ii) to protect the interestsof the protected tenants and iii) to see that unscrupulous protected tenantsmay not knock away the properties of landlords by dubious methods. This is evident from the guidelines laid down in Section 48 of the Actfor grant of sanction for effecting alienations by the landlords. Hence, evenif the learned Judge feels that the decision in G.V.K. RAMA RAO (26 infra) iswrong, the overwhelming view of this Court coupled with the decision of theSupreme Court on the effect of repeal of a statute could not be ignored.

35. Sri M.V.S. Suresh Kumar countering the argumentsof the learned counsel for the appellants placed reliance on a decision of theSupreme Court in RAM KRISTO MANDAL v. DHANKISTO MANDAL, : [1969]1SCR342 wherein the lordshipsof the Supreme Court while considering the repeal of Section 27 of the SonthalParganas Regulation, 1972, which prohibited any transfer of a holding by aryoth either by sale, gift, mortgage or lease or by any other contract oragreement, observed:

'It is true, that ss. 27 and 28 of theRegulation were repealed by the Santal Tenancy (Supplementary Provisions) Act,14 of 1949. But s. 27 was in force when the said transaction of exchange wasmade and governed the transaction made by Nilmoni Dasi and Premmoyee, Dasi.That transaction being invalid and void, the fact that s. 27 was subsequentlyrepealed made no difference as the repeal could not have, the effect ofrendering an invalid and void transaction a valid and bindingtransaction.'

36. The cases referred to supra are later in point oftime and in RAM KRISTO (7 supra), their lordships except holding that theinvalid and void transaction cannot be a binding transaction did not considerthe effect of repeal of a provision as was done in the cases of STATE OF PUNJABv. M.S. PRATAP SINGH, AIR 1955 SC 84, QUDRAT ULLAH (2 supra) and INDIA TOBBACCO CO (5supra). Hence, we are inclined to follow the view taken by the SupremeCourt in those three decisions than the view expressed in RAM KRISTO MANDAL (7supra), more so without any discussion on the effect of repeal of a provision.

37. The next question to be considered is whether thedefendant, who was declared as a trespasser in the earlier proceedings inS.A.No. 320 of 1966 in the Civil Court and the proceedings before Revenue Courtwherein his request for recording his name in the Tenancy Register was rejected,can resist the suit on the ground that the alienation in favour of theplaintiff is hit by Section 47 of the Act. As stated supra,while the suit filed by the defendant for injunction against the owner of theproperty was pending, the owner sold the property to the plaintiffs.Thereafter, the owner herself filed Civil Miscellaneous Petition before thisCourt to bring the plaintiffs as additional appellant in the second appeal pendingbefore this Court by stating that she sold the land in favour of theplaintiff. At that point of time, the defendant did not raise anyobjection that the transaction being hit by Section 47 of the Act and in factthe plaintiffs were impleaded as additional appellants in the Second Appeal. Inthe presence of plaintiffs, the defendant was declared as trespasser. When thedefendant approached the Revenue Divisional Officer seeking entry of his namein the protected tenancy register, the plaintiffs got themselves impleaded andpleaded that the property was purchased by them. Even at that stage, he did notraise this issue. Ultimately, in both the Courts, the defendant lost hiscase. Now the law is well settled withregard to the position of a trespasser. The trespasser can maintain hispossession against the entire world, except the real owner. In this casewhen once the earlier proceedings have taken place in the presence of plaintiffsand the defendant was declared as trespasser, necessary inference to be drawnis that the court below recognised the sale in favour of the plaintiffs hereinand held that the defendant is a trespasser. From thatmoment, it cannot be said that the plaintiffs are strangers to the property asthe right of the defendant over the property was recognised by a competentcourt.In the light of the foregoing discussion, we areof the view that the judgments in S.A.No. 320 of 1966 and the Revenue Courtoperate as res judicata, and the defendant cannot raise this issue in the thirdround of litigation.

38. Mr. Suresh Kumar cited the following decisionsalso for the proposition that there cannot be any estoppel against the statuteand no Court can enforce a transaction as valid which, according to law, isinvalid.

39. In SURAJMULL v. TRITON INSURNCE CO, AIR 1925 PC 83, the owner ofthe steamer filed a suit claiming damages for breach of an alleged contract to'issue policies of insurance covering war risks on goods' shipped orto be shipped. In this case after some oral discussion between theappellant firm and the Insurance Company, the company refused to issue policyand on that the appellant insured the goods else where at higher premium andclaimed excess premium paid by the company as damages. Adverting to thesituation as no insurance policy was issued, Justice Lord Summer held asfollows:-

'No Court can enforce as valid, that whichcompetent enactments have declared shall not be valid, nor is obedience to suchan enactment a thing from which a Court can be dispensed by the consent of theparties, or by a failure to plead or to argue the point at the outset.'

40. We feel this ratio decidendi of this case is notof much help, since in the peculiar circumstances of this case; we have toconsider the effect of Sec. 50-B read with Section 47 when both Sections are onthe statute book.

41. The learned counsel cited yet another judgment inDINBAI v. THE DOMINION OF INDIA, : AIR1951Bom72 for the proposition that there can be noestoppel against law and no person can be precluded from contending thatcertain orders are invalid as the orders are valid or not is a pure question oflaw. This proposition is unexceptionable. But we have to considerthe effect the deletion of Sec. 47 in the case on hand and the time limit fixedunder Section 50-B for validation of the alienation expired by the time thesuit was laid. The counsel relied on the judgmentin MANNALAL v. KEDAR NATH, : [1977]2SCR190 for the proposition that whether a contract,expressly or by implication, is forbidden by State, no court can give itsassistance to give effect. In other words what is done in contravention of theprovisions of an Act of the legislature cannot be made subject of anaction. Again application of this principle will depend upon the view weare going to take on the fact of deletion of Sec. 47 at the time when the suitis instituted.He also placed reliance on two judgments of theMadras High Court in KONERIDOUS v. N. SUBBAIAH NAIDU, : AIR1975Mad124 and ZALIM v. BABUTIRLOCHAN PRASAD SINGH, AIR 1937 OUDH 220 (FB) for the proposition that it is always open to a partyto question the correctness of any order of competent court passed in earlierproceedings by bringing the legal representatives on record in subsequentproceedings. In this case, the facts as stated supra are altogetherdifferent and hence we are not referring to these judgments, as they cannotcome to the aid of the defendants.

42. On the other hand, in VIJAYABAI v. SHRIRAMTUKARAM, : AIR1999SC431 , their lordships of the Supreme Court held:

'It would be impermissible to permit anyparty to raise an issue, inter se, where such an issue under the very Act hasbeen decided in an early proceeding. Even if res judicata in its strict sensemay not apply but its principle would be applicable. Parties who are disputingnow, if they were parties in an early proceeding under this very Act raisingthe same issue, would be stopped from raising such an issue both on theprinciple of estoppel and constructive res judicata.'

43. Hence, we are of the view that the defendantcannot be permitted to raise the issue that the alienation is hit by Section 47of the Act at this belated stage.

44. Nextly, Sri M.V.S. Suresh Kumar placed reliance ona judgment of the Supreme Court in M.M.B. CATHOLICOS v. M.P. ATHANASIUS, AIR 1954 SC 526 forthe proposition that the plaintiff has to succeed or fall on the strength ofhis own title than trying to destroy the title of the defendant. Absolutelywe are in full agreement with the proposition. When once we hold that thealienation in favour of the plaintiff is not hit by Section 47, perhaps thedefendant has no case as he was already declared by a competent Court that hewas in unauthorised possession of the property, which has become final.

45. In the earlier round of litigation in SecondAppeal No. 320 of 1966 dated 5.3.1999, this Court having taken note of thealienation made by the first appellant in favour of appellants 2 and 3, whowere brought on record as per orders in C.M.P.No. 3179 of 1966 dated 26.9.1966,categorically recorded a finding:

'This appeal is filed by the first defendant,originally appellants 2 and 3 were added in this Court. The plaintifffiled the suit for an injunction restraining the defendant from interferingwith his possession alleging that he has the status of protected tenant andthat he continued in possession as a tenant after the death of his father. It is admitted that the defendants are owners of this property.'

46. Since the plaintiffs were already brought onrecord in the earlier proceedings as owners of the property, the defendantherein cannot contend that they are strangers and he could protect hispossession against them, who are admittedly true owners as recorded in theabove appeal.

47. Sri M.V.S. Suresh Kumar cited another judgment inTATOBA GANU v. TARA BAI, : AIR1957Bom280 for the proposition that the plaintiff has to provehis title and the Court is not concerned with the weakness of the title of thedefendant in a suit for ejectment and that the defendant may be a trespasserbut the defendant in possession is entitled to ask the plaintiff to provestrictly his title. Admittedly that was a suit filed for ejectment of thedefendant therein. Here, the suit was filed for recovery of possessionand injunction by the plaintiffs and their title to the property was alreadyrecognised in earlier proceeding itself and hence the defendant cannot resistthe suit for recovery of possession and injunction.

48. Nextly, Mr. Suresh Kumar brought to our notice thepassage from the judgment of the Supreme Court in NAIR SERVICE SOCIETY v. K.C.ALEXANDER, : [1968]3SCR163 , which was borrowed from PERRY v. CLISSOLD, 1907 AC 73, which is to thefollowing effect:

'It cannot be disputed that a person inpossession of land in the assumed character of owner and exercising peaceablythe ordinary rights of ownership has a perfectly good title against all theworld but the rightful owner. And if the rightful owner does not come forwardand assert his title by the process of law within the period prescribed by theprovisions of the statute of Limitation applicable to the case, his right isfor ever extinguished and the possessory owner acquires an absolutetitle.'

49. In the light of the above principle, as alreadystated, if the rightful owner comes forward and asserts his title within theprescribed period of limitation, the person in possession of the property andexercising the ordinary rights of ownership has to give way to the rightfulowner.

50. The learned counsel for the appellant, Mr. SureshKumar, contended that on the day when Smt. Ummatul Basheera Begum sold theproperty in favour of one Muneera Sultana, the first plaintiff herein viz., on28.7.1964, she had no title to the property and as such it cannot be said thatshe conveyed the property validly. On that ground also, the learnedcounsel contends, the alienation cannot be given effect to. But the factremains that the defendant filed a suit in O.S.No. 38 of 1963 against BasharatAhmed and his wife Ummatul Basheera Begum for permanent injunction in1963. If Ummatul Basheera Begum was not having a right over the property,it is not known as to why the defendant made her as party defendant in thesuit. Even assuming for the sake of argument that she was not havingownership right over the property that was sold by her in 1964, during thependency of the suit and after disposal of A.S.No. 320 of 1966 and beforefiling S.A.No. 320 of 1966, Basharat Ahmed died and his wife Ummatul Basheera Begum,who sold the property to the plaintiffs, succeeded to the property of BasharatAhmed as they had no issues. In fact no other legal heir of BasharatAhmed after his death claimed any right over the suit schedule property allthese years i.e., from 5.10.1965, the day on which Basharat Ahmed died.The contention raised by the counsel is squarely answered by Section 43 of theTransfer of Property Act, which reads as under:

'Where a person fraudulently or erroneouslyrepresents that he is authorised to transfer certain immovable property andprofesses to transfer such property for consideration, such transfer shall, atthe option of the transferee, operate on any interest which the transferor mayacquire in such property at any time during which the contract of transfersubsists.

Nothing in this section shall impair the right oftransferees in good faith for consideration without notice of the existence ofthe said option.'

51. Even assuming for the sake of arguments, UmmatulBasheera Begum has no right of ownership over the property, after the death ofher husband, Basharat Ahmed, on 5.10.1965, she has not only acquired theownership rights over the suit schedule property but also in the second appealshe filed a Civil Miscellaneous Petition to bring the plaintiffs as appellants2 and 3 on record by stating that she sold the property to them, which petitionwas ordered by this Court. Hence, it could be seen that she not onlyacquired ownership rights over the property subsequent to the alienation but alsofiled an application stating that she has transferred the right over theproperty in favour of the plaintiffs. Hence, the defendant cannot contendthat the plaintiffs have no right of ownership over the property.Accordingly, this contention is also rejected.

52. Their lordships of the Supreme Court hadconsidered the effect of alienation pendente lite in NAGUBAI v. B. SHAMARAO, : [1956]1SCR451 . In that case, after Keshavananda was adjudged as insolvent and theestate vested in the official receiver, plaintiff purchased the suit scheduleproperty in execution of a decree in O.S.No. 100/99-20. The defendantraised a contention that the transaction is void and no title was conferred onher because the official receiver, in whom the estate of Keshavananda vested,was not made a party to the proceedings. In paragraph-25of the judgment, their lordships held as under:

'But it is argued for the appellants thathaving regard to the words of S. 52 that pendente lite 'the propertycannot be transferred', such a transfer must, when it falls within themischief of that section, be deemed to be non est, that in consequenceKeshavananda must, for purposes of lis pendens, be regarded as the owner of theproperties, notwithstanding that he had transferred them, and that the OfficialReceiver who succeeded to his rights had a right to be impleaded in the action.

This contention gives no effect to the words'so as to affect the rights of any other party thereto under any decree ororder which may be made therein', which make it clear that the transfer isgood except to the extent that it might conflict with rights decreed under thedecree or order. It is in this view that transfers pendente lite have been heldto be valid and operative as between the parties thereto.'

53. From the above decision, it is seen that thetransfer is good between the parties except to the extent that it mightconflict with the rights decreed under the decree or order. The mattercan be viewed from another angle also. A purchaser who purchased theproperty in dispute will get no better title than what the real vendor washaving in the property. When once such a party gets himself impleaded inthe proceedings by contending that he purchased the property pendente lite, ithas to be presumed that he steps into the shoes of the owner of the propertyand if the owner's right to property is upheld it amounts to upholding thetitle in favour of his vendee.

54. Assuming for a moment that the principle of resjudicata is not applicable, we would like to refer to the case-law cited by thelearned counsel on both sides with regard to the validity of the transaction.

55. Sri M.V.S. Suresh Kumar relied ona Full Bench judgment of this court in K. PARVATHAMMA v. THE COMMISSIONER OFEXCISE, AIR 1973 AP 333 : 1970 (2) ALT 186 (FB). It is true that in this case the Full Bench observed that inthe case of private alienations the rule is well settled that prior sanctionshould be obtained before the registration of the document, i.e., at the stagewhere the title to the property passes on to the purchaser. Likewisein the case of involuntary sale, sanction should be obtained before sale is confirmed,i.e., the stage at which there is transfer of the property by operation of law.Their Lordship having placed reliance on another Full Bench judgment of thiscourt in P.E. RAMAKISTAIAH v. POCHAIAH, 1967 (2) An.W.R. 17 (F.B.) observed that after the sale is heldand the purchaser is ascertained, he should then apply to the Tahsildar forsanction under S.47 of the Tenancy Act and on the strength of such priorsanction alone, the sale will be confirmed under Section 139 of the LandRevenue Act which represents the final stage at which transfer by operation oflaw takes place. This judgement is rendered in a writ petition filed by thepetitioner, the daughter of the landholder, seeking writ of mandamus directingthe Collector to hold fresh auction of the suit schedule properties as priorpermission was not obtained as required under Section 47 of the Tenancy Actbefore bringing the properties of her father to sale for recovery of excisearrears.

56. Admittedly, the party whocomplained against the illegality in the transfer is no other than the daughterof excise contractor who fell in excise arrears and whose properties werebrought to sale in revenue auction. While considering the plea, thelearned Judges made a passing observation that 'in private sales, the ruleis well settled that prior sanction should be obtained before the registrationof the document'. But to our mind that in the light of Sec.50-B ofthe Tenancy Act even if no prior permission is obtained before sale transactionis completed the alienee is given the opportunity to approach the Tahsildar forobtaining the certificate. When once the conditions laid down in Sections48 and 50-B are complied with, the Tahsildar cannot refuse to grantpermission. It is pertinent to note that the learned Judges having heldthat prior sanction is required before confirmation of sale observed as under:

'The result of their decision is that priorsanction under Sec.47 is required only before the sale is confirmed underSec.138 of the Revenue Act. By virtue of the order of stay passed therevenue sale in favour of the purchaser has not yet been confirmed. Butit has to be noted that in view of the recent legislation viz., Andhra Pradesh(Telangana Area) Tenancy and Agricultural Lands Act (Third Amendment) (Act 12of 1969 which came into force on 18.03.1969, section 47 and the other connectedprovisions of the main Act have been omitted with the result that no sanctionis at all necessary before confirming the sale in favour of the 5threspondent'.

57. From this view of the learnedJudges it is clear that when once the section prohibiting alienations of theimmovable property is deleted from the statute, no sanction is required forconfirmation of the sale in favour of the 5th respondent since the title passeson to the purchaser only after registration.

58. Coming to the case on hand, to our mind though thesale took place on 28.7.1964 when both Sections 47 and 50-B are on the statutebook, the plaintiffs were not put in possession of the land since theproceedings initiated in the civil court by the defendant were pending at thatpoint of time and the same came to an end only in 1969. Subsequently, thedefendant approached the Revenue Divisional Officer to enter his name in theofficial record. That litigation came to an end on 6.6.1974 by which time S.47is deleted from the statute book. It is also to be seen that timelimit prescribed under Sec.50-B of the Act to obtain prior permission was notavailable as the extended time came to an end on 31.3.1972.

59. The next decision relied on by thelearned counsel is that of this Court in LACHAMMA v. K. CHINNA VENKATA REDDY, ILR 1974 A.P. 119wherein the Division Bench held as follows:

'A plain reading of Sec.50-B would clearlyindicate that it is prospective in operation and not retrospective. Mere deletion of Sec.47 or introduction of S.50-B does not by itselfvalidate all the transfers which were valid; such invalid transfers do notbecome legally enforceable unless a seal of approbation is put up by theTahsildar by granting a certificate a certificate validating the sale.'

60. From the above, it is seen that their lordshipswere dealing with the alienations that have taken place prior to introductionof Section 50-B.

61. Nextly, the facts andcircumstances in this case are not known as only a Short Note of the judgmentwas placed before us. Even in this judgment their Lordshipsobserved that invalid transfers do not become legally enforceable unless a sealof approbation is put up by the Tahsildar by granting a certificate validatingthe sale. But there was no indication at what stage the certificate hasto be obtained. But in any of the cases cited before us, none the alienationshave taken place when both the Secs.47 and 50-B are on the statute book.In the absence of Sec.50-B perhaps the counsel may be justified in contendingthat this being an illegal alienation it cannot be validated by mereintroduction of Sec.50-B without the seal of approval by the Tahsildar. But when both the sections are on the statute book, keeping in viewthe scheme of the Act we have already taken the view that it is only a voidablealienation but not a void alienation. When once it is voidablealienation it can be validated by any of the parties involved in thetransaction i.e., the vendor, vendee and in this case it is the Tahsildar whohas to give the seal of approbation.The very fact that the vendor or her successorsdid not question the alienation or the Tahsildar who is competent authorityunder the Act have not raised any dispute with regard to the validity of the transactionthough it was brought to the notice of the Tahsildar by the defendant bynecessary implication, it has to be held that the Tahsildar has given his sealof approval to the transaction. Nextly, the principle laid down in thiscase may not come to the aid of the defendant, since the transaction is not hitby Section 47 of the Act as no possession was delivered to the plaintiff at thetime of the transaction as held by the Court in the decision referred tohereunder and the alienation is subject to the result of the proceedingspending in civil Court.

62. The next decision relied on by the learned counselis M. SEETA DEVI vs. M.R.O, 1990 (1) APLJ 219 for theproposition that the registered sale deed obtained without obtaining permissionunder Sec.47 is void. This judgment is again rendered in a writ petition filedunder Art. 226 of the Constitution of India wherein the petitioners questionedthe orders passed by the Mandal Revenue Officer refusing to cancel mutation ofthe lands in favour of the 3rd respondent who is no other than one of the sonsof original landholder. The contention of the petitioners was that the3rd respondent and his two sons sold an extent of Ac.14.12 guntas of land by aregistered sale deed to one Pochamma without obtaining prior sanction and theMandal Revenue Officer erred in mutating the lands in favour of the 3rdrespondent. While considering the case of thepetitioner, the learned Judge observed that 'prior sanction by theTahsildar was not obtained as required under Sec. 47 of the Act and hence thesale is to be considered as void'. The learned Judge in arriving atthe above decision relied upon a judgment of this Court in USHANNA v. SAMBHUGOND, 1985 (3) APLJ 32 wherein this Court held that 'if the transferee or alienee did notavail himself of this opportunity of getting his alienation and possessionvalidated under Section 53-B, he should suffer the consequences, since thetransfer and delivery of possession in his favour remained invalid andunlawful.'In this case, it is seen that the petitionerpurchased the land from one Hanumantha Rao after deletion of Sec. 47 who inturn purchased the same from the first son of the landholder i.e., Kesavuluafter obtaining prior permission as required under Sec. 47 of the Act and wasquestioning the alienations made by the 3rd respondent and his two brotherswithout obtaining prior sanction while alienating the land to Pochamma. From this, it is evident that if possession is delivered at the timeof the transaction and if the alienee failed to avail the opportunity ofgetting his possession validated, he has to suffer the consequences.Further, to our mind this judgment may not be of much help to the appellant forthe reason that the effect of deletion of Sec.47 on the transaction had notbeen considered and that at the time when the 3rd respondent sold the land toPochamma, who in turn sold the property to third parties on 30-11-1971, theprocedure for getting the alienation validated was very much available.

63. But in the instant case the litigation between theparties in the earlier round was still going on by the time Sec. 47 was deletedfrom the Act and also the time limit prescribed under Section 50-B for gettingthe sale validated had expired.

64. The next decision relied on by thelearned counsel is B. JANGAIAH v.G. LAXMAMMA, : 1999(3)ALD381 .In this case the protected tenantquestioned the orders of the Mandal Revenue Officer directing his eviction fromthe land on the ground that he committed willful default in payment of rent forthree years as confirmed by the appellate authority. The maincontention of the petitioner therein seemed to be that as the landholder soldthe petition schedule land to the respondent on 13.06.1950, it is hit by Sec.47 of the Act and the above sale is void. This argumentwas found favour with the learned Judge who held that the sale being a privatesale mere deletion of Sec. 47 would not have any effect whatsoever and that thetransaction is hit by Sec. 47 and is abinitio void. The learned Judge observedthat his decision in G.V.K. RAMA RAO v. B.H.E.C.H.B. SOCIETY, 1997 (4) ALD 294 wherein contraryview was taken by him has to be ignored.

65. Admittedly, in this case, firstly the maincomplainant about the alienation is no other than the protectedtenant. Secondly, alienation has taken place on 13.6.1950 afterpromulgation of Tenancy Act. Unfortunately the factual position was notbrought to the notice of the learned Single Judge. On the day thesale has taken place, Sec. 47 was not on the statute book. For thefirst time it was introduced only in 1951 and the learned Judge proceeded on awrong assumption that Sec. 47 was on the statute book on the date of executionof sale deed Ex.A2, dated 13.6.1950. Nextly, the learned Judge did notconsider the fact of deletion of Sec.47 from the statute book andnon-availability of the procedure contemplated under Section 50-B for gettingthe sale validated by the time the suit is filed.

66. In M. POCHAMMA v. AGENT, STATE GOVT., ADILABAD, : AIR1978AP242 ,the question that fell for consideration of the Division Bench of this Courtwas whether a person who obtained possession of immovable property pursuant toSec. 53-A of Transfer of Property Act without obtaining prior sanction asrequired under Sec. 47 of the Act and without securing validation certificateunder section 50-B, can claim protection under Sec. 53-A of the Transfer ofProperty Act after A.P. Scheduled Area Land Transfer Regulations 1959 wereextended to Telangana area on and from 1.12.1963. In this casethe non-tribals entered into a contract of sale in respect of the land held bytribals in the schedule areas before 1.12.1962 and after extending theScheduled Areas Land Transfer Regulations to Telangana area, the vendors i.e.,tribals challenged the validity of the sales under the provisions of theRegulation 1959. In this case, the learned Judges extensively considered theeffect of various provisions of the Tenancy Act. It is pertinent to knowthat in paragraph 8 of the judgment their Lordships observed as follows:-

'...Sec. 47 and 50-B are co-existed from 1964to 1969.In 1969 Sec. 47 and certain otherprovisions were deleted and only Sec. 50-B is on the statute book. Thebenefit of validation was extended up to 31.03.1972. The purpose behind thesechanges is not far to seek. Section we have already noticed, one of thepurposes of the Hyderabad Tenancy Act is to regulate the alienation of lands.In pursuance of that purpose, Chapter V was made imposing certain restrictionson transfers of agricultural lands. Section 47 was the very firstprovision in that Chapter. It laid down that no permanent alienation orno other transfer of agricultural land shall be valid unless it has been madewith the previous sanction of the Tahsildar.

This declarationis very clear and specific. If there is any permanent alienation ortransfer of agricultural land without the previous sanction of the Tahsildar,that would be invalid. However, the Legislature obviously took note ofthe fat that there had been very many permanent alienations or other transfersof agricultural lands which had taken place without the previous sanction ofthe Tahsildar. In order to obviate the confusionand injustice that might result therefrom the Legislature introduced S.50-B inthe year 1964 for validation of certain alienations and other transfers ofagricultural lands. Till 1969 until S.47 wasdeleted both the section Community Certificate-existed. The position thenwas that the prohibition against alienations without previous sanction of theTahsildar continued and at the same time transferees after 10th June, 1950 butbefore 21st February, 1961 who had also obtained possession, were given anopportunity to get the alienations in their favour validated within one yearfrom the prescribed date.In 1969 S.47 was altogetheromitted; only S.50-B with the changes above mentioned was retained.'

67. Their Lordships at paragraph 9 further observed asfollows:-

'The position which emerged from theamendment of S. 50-B was that alienees of agricultural lands, whohad obtained possession between 10th June, 1950 and before the Ceiling Act of1961 and also after the Ceilings Act of 1961 but before the Hyderabad TenancyAct (Third Amendment 1969, were enabled to secure validation of theiralienations. It is important to note that the facility of validation would beavailable only to those transferees who had obtained possession of theland. If all the requirements of S.50-B are satisfied, the alienee ortransferee may apply to the Tahsildar for a certificate declaring that his alienationor transfer was valid.'

68. Their Lordships having considered the effect ofSec. 50-B and the procedure prescribed for obtaining validation certificateheld in the same paragraph as follows:

'It must necessary follow from this that ifthere is no validation certificate, the alienation or transfer, thoughaccompanied by possession, would not be treated as valid.'

69. Having stated so their lordships referred to thesubsequent deletion of Section 47 in paragraph 19 of the judgment and held asfollows:-

'...whether the subsequent deletion of S.47of the Hyderabad Tenancy Act would have the effect of automatically validatingthe alienations and transfers, though they were invalid on account of lack ofsanction of the Tahsildar under that Section. If there was deletion of S.47simpliciter without anything more, possibly two views might have beenpossible. On the one hand, probably it could have been said that what hadbeen the cause of invalidity of an alienation or transfer has been removed bythe deletion of S.47 and therefore it must be deemed that the original defectin the alienation or transfer must be deemed to have been cured or removed. Onthe other hand it could be argued that what was invalid to start with could notbe validated unless there is a special proclamation by the Legislature or aprovision under which such invalid alienations or transfers could bevalidated. However, in our view, this possibility of the existence of twoviews does not exist in so far as the Hyderabad Tenancy Act is concerned, particularlyso in these writ petitions. Why we say that suchsituation does not exist in these cases particularly is that s.47 was deletedin 1969 and the Regulation relating to the prohibition or alienations of landsin the Scheduled Areas by tribals came to be applied to the Telangana Area on1.12.1963 which was long before S.47 was removed from the statute book.Even if it were to be argued that the removal of S.47 would automatically validatethe invalid alienations and transfers, the insurmountable hurdle in the way ofthe petitioners would arise in the form of the Regulation which came to beapplied to their lands even on 1.12.1963. By virtue of the Regulation theinvalidity, which was inhibiting the alienations or transfers in their favourby 1.12.1963 on account of lack of sanction under S.47 of the Hyderabad TenancyAct, could not be cured in respect of their rights and interests that mighthave existed earlier. It is true that up to 1.12.1963, that is to say,till the Regulation came to be applied to the Telangana Area, either thepetitioners or their alienors could have applied to the Tahsildar forpermission for the alienations or transfers thereby securing legal sanction to them.It is a moot point whether after the Regulation came into force o 1.12.1963 andbefore S.47 was deleted in 1969 permission could be obtained for transfer inrespect of these lands in the scheduled Areas in view of S.3 of the Regulation.

70. However, we do not express any view on this point since it is notnecessary to do so in these cases. The admitted fact remains thatno attempt has been made either by the petitioners or their alienors forsecuring the required permission under S.47 even after 1.12.1963 and beforeS.47 was deleted.

71. At paragraph 20 of the judgment, their Lordshipsobserved as follows:-

'There is yet another formidable objection tothe validity of the transfers in favour of the petitioners. In 1964S.50-B was introduced for validation of the earlier invalid transfers.For five years thereafter till 1969 S.50-B was part of the statute along withS.47. The result was that even after 1964 no permanent alienation or transfercould be effected without the necessary permission from the Tahsildar. At thesame time, the earlier invalid alienations for want of that sanction could bevalidated by taking recourse to S.50-B proceedings. In 1969 S.47 andthe allied provisions were deleted and yet, S.50-B was retained.This is a very material and significant circumstance. Though S.47 was deleted,thereby implying that from that date no permission was necessary foralienations or transfers. The earlier invalid transfers, which had taken placefrom 1950 to 1969, could be validated with the aid of the proceedings underS.50-B. It would also be very pertinent to note that by Act 12 of1969, which deleted s.47 and the allied provisions from the statute book,substituted sub-sec. (1) of S.50-B whereunder the invalid alienations, whichhad taken place from 10th June, 1950 right up to the date of the commencementof the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Land (Thirdamendment) Act, 1969 could be validated. We have already noted that originallyas S.50-B(1) stood when it was first inserted by Act 6 of 1964, onlyalienations from 10th June, 1950 till 21st of February 1961 could be validatedunder that section. While deleting S.47 and the allied provisions in 1969, sub.sec.(1) of S.50-B was altered by extending the period from 21st February 1961till the third Amendment to the Hyderabad Tenancy Act in 1969 was made. That isto say, under the newly altered S.50-B as per Act 12 of 1969, even thealienations and transfers, which were invalid right up to 1969, could bevalidated. In other words, even those alienations and transfers, which had beenmade without obtaining sanction under s.47 up to 1969 in which year thatsection was deleted, could be cured and made lawful by invoking the provisionsof S.50-B. It is thus manifest that S.50-B was made by the Legislaturewith a definite purpose and that purpose was clearly declared in the marginalnote as 'validation of certain alienations and other transfers of otheragricultural lands.' As we have pointed out, very many alienationshad been made contrary to Ss.47, 48 etc., and the Legislature thought it justand proper to validate some of them. The alienations which could be validated, themanner in which such validation could be made and the time within which thatvalidation could be sought were all prescribed in the Section. As itstood amended by 1969 Act, transfers, which had taken place between 10th June,1950 and 1969 when the Third Amendment to the Hyderabad Tenancy Act was madewhere possession had been given and which were not inconsistent with theprovisions of the A.P. Ceiling on Agricultural Holdings Act, 1961, wereeligible for validation under the provision.

In paragraph 21 of the judgment, their lordshipsobserved that the invalidity of the alienation would continue if there is nodeclaration under Section 50-B and the certificate under sub-section (2) couldbe granted only where possession had been delivered and where the alienee haspaid the balance of consideration or deposited the same in the mannerprescribed.

72. In paragraph 22 of the judgment, their lordshipsobserved as under:

'...if the transferee or alienee did notavail himself of this opportunity of getting his alienation and possessionvalidated under S.50-B, he should suffer the consequences, since the transferand delivery of possession in his favour remained invalid and unlawful.'

73. Speaking on the purported intention of Section50-B, their lordships observed:

'S.50-B was not merely an enabling provisionbut was also intended by the Legislature as a remedy for validating transfersand possessions which were invalid. Without such validation, theinvalid transfer and delivery of possession remained invalid. Thisfacility to get the invalid alienations declared as valid existed only up to31st March, 1972, since the Legislature stopped further extension for suchvalidation after that date. Those who did not apply under S.50-B up to31st March, 1972 would reap the result of having an invalid transfer anddelivery of possession on their hands. The Legislature's refusal toextend the time beyond 31st March, 1972 does not validate the invalid transfersand delivery of possessions. If this was not the intention of theLegislature by enacting S.50-B and amending it, then that section would bepointless and purposeless. It cannot be postulated that any provision of anenactment has been made without any purpose.'

74. Having taken the view, their lordships did notagree with the view taken by Justice Pardhasaradhi in HAFEEZUNNISA BEGUM v.SYED ARAB, (1969) 2 An. WR 317 wherein his Lordship held that Section 50-B was merely an enablingprovision and the omission of a party to take advantage of it does not put thevalidation itself in jeopardy.

75. In the decision in USHANNA (24 supra), Justice K.Ramaswamy, as he then was, had taken the view that if the transferee or thealienee did not avail himself of the opportunity of getting his alienation andpossession validated under Section 50-B, he should suffer consequences sincethe transfer and delivery of possession in his favour remained invalid andunlawful.

76. Following the said decision, Justice M.N. Rao, ashe then was, in M. SEETA DEVI (23 supra) held that the sale deed dated8.10.1964 executed by the third respondent and his brothers in favour ofPochamma is void as the alienation has taken place without obtaining anypermission from the Mandal Revenue Officer before entering into an agreement,which preceded the sale deed, and the alienees also have not taken any steps toget the transfer validated under Section 50-B of the Act. It is pertinentto notice the last portion of the judgment wherein it was observed that

'However, it is made clear that it is open to the third respondent to filea civil suit to establish his alleged rights in respect of the land inquestion.'

77. Again, the above two cases deal with thepossession obtained by the alienees pursuant to an alienation without obtainingprior sanction of the competent authority i.e., the Tahsildar. Atany rate, Justice M.N.Rao having found that the sale is void gave liberty tothe party to approach the civil court for establishing his right over theproperty.

78. The sum and substance of this judgment is:

a) The Hyderabad Tenancy Act was enacted toregulate the alienation of lands and under Section 47 of the Act no permanentalienation shall be valid, unless it has been made with the previous sanctionof the Tahsildar.

b) Since several alienations or other transfer ofagricultural lands have taken place without the previous sanction of theTahsildar, the Legislature in its wisdom introduced Section 50-B for validationof certain alienations and both Sections 47 and 50-B co-existed on the statutebook from 1964 to 1969 and the embargo placed under section 47 was lifted inthe year 1969.

c) Their lordships also held that the facility ofvalidation would be available only to those transferees, who had obtainedpossession of the land.

d) The alienation or transfer, accompanied bypossession, without obtaining validation certificate, has to be treated as notvalid.

e) While considering the effect of deletion ofSection 47, their lordships having observed that two views are possible did notexpress any opinion as that was not necessary in that case since thetransaction therein was prior to 1.12.1963, the date on which the ScheduledAreas Land Transfer Regulations were extended to Telangana Area.

f) Section 50-B was introduced to validate theinvalid transfers that have taken place prior to third amendment whereunderpossession has been given, if the same were not in contravention of A.P.Ceiling on Agricultural Holdings Act, 1961.

g) The possession of an alienee remains invalidand unlawful if he did not avail himself of the benefit conferred under Section50-B.

h) The legislature's refusal to extend the timebeyond 31.3.1972 does not validate the transfers and delivery of possession ifthe alienee fails to avail the benefit under Section 50-B for getting theillegal transfers validated.

79. Justice Madhava Reddy, as he then was, in SecondAppeal No. 520 of 1968 dated 20.7.1970 while following the judgment in SYEDJAJLAL v. TARGOPAL, : AIR1970AP19 considered the effect of deletion of Section 47 andobserved:

'Deletion of Section 47 can operate onlyprospectively and if on the date of transfer or permanent alienation whenSection 47 was in force, it cannot be contended that on that date thealienation was valid and the transfer of possession would also be valid.He also observed that S.50-B could have reference only to transfers, which weremade at a time when Ss. 47 to 50-A were in force. The learned Judge expressedthe view that S.50-B, by necessary implication, retrospectively validates thetransfer of agricultural lands made when S.47 was in force and were invalid forwant of prior sanction of the Tahsildar.'

80. His lordship having considered the Third AmendmentAct, viz., deletion of Sections 47 to 50-A of the Act, held:

'If the third Amendment Act is held to beprospective at least from 18th March, 1969 onwards, the possession under suchagreements of sale cannot be deemed to be unauthorized and therefore thepersons in possession would be entitled to invoke the provisions of S.53-A toprotect their possession.'

81. His lordship further held that the possessionwhich had been delivered to the 1st defendant might have been unauthorized atthe time it was given, but it cannot be deemed to be unauthorized in view ofthe fact that Sections 47 to 50-A were deleted and a provision was made forobtaining a certificate declaring the transfer as valid.

82. After expressing the said opinion, the learnedJudge arrived at the view perhaps by the time the second appeal was dismissed,still there was time left out for obtaining certificate under Section 50-B ofthe Act. But this view was not found favour with by the Division Bench inL.P.A.No. 139 of 1970 and their lordships held:

'Mere deletion of Section 47 or introductionof Section 50-B would not by itself validate all the transfers which wereinvalid and that such invalid transfers would not be legally enforceable unlessa seal of approbation is put by the Tahsildar by granting a certificatevalidating the same. But it could not be said that by necessary implication S.50-B validates all such invalid matters. It may be thatafter deletion of S. 47 contracts of transfer could be made without any priorpermission as was required when S. 47 was there. But the question hadstill to be answered whether possession delivered in pursuance of agreement tosell prior to 18.3.1969 could be defended by invoking S.53-A of the T.P.Act.'

83. But, at the same time, their lordships havingapproved the ratio decidendi in SYED JALAL (29 supra) observed that when onceSection 47 was deleted, the possession given earlier would be considered asvalidly given. Ultimately, their lordships agreedwith the conclusion arrived at by Justice Madhava Reddy and dismissed theLetters Patent Appeal.

84. From the above it is seen that the learned Judgesfirstly expressed concurrence with earlier decision of this Court in SYED JALAL(29 supra) and secondly observed that by deletion of Section 47, thepossession, which was unauthorized until then, seized to be unauthorized.Again, an inference may be drawn in this case that the above observations oftheir lordships may be attributable to the fact that by the time the LettersPatent Appeal was dismissed, still the time limit for getting the seal ofapprobation from the Tahsildar for the transaction is available.

85. Yet in another decision, viz., Second Appeal No.450 of 1970, dated 21.9.1972, Justice Madhava Reddy, as he then was, havingreferred to the judgment of Division Bench in SYED JALAL (29 supra) and hisearlier judgment in S.A.No. 520 of 1968 concluded that the view he had takenearlier was found favour with the Division Bench. In that case, the questionthat arose was whether a contract of sale dated 30.6.1956 could be deemed to beauthorised at least from 18.3.1969, the date on which the Third Amendment toHyderabad Tenancy Act came into force, and whether the first defendant candefend and protect his possession by invoking Section 53-A of the Transfer ofProperty Act.

86. A Full Bench of this Court in K.PARVATHAMMA (20supra) held that even for revenue sales, sanction under Section 47 before theamendment of 1969 was required before confirmation of such sale.

87. While considering the effect of non-obtaining thecertificate as contemplated under Section 47 in court auctions and deletion ofSection 47 by the time the judgment was rendered, their lordships held thatonly after a sale is held and the purchaser is ascertained, he has to apply tothe Tahsildar for sanction under Section 47 of the Tenancy Act and on thestrength of such prior sanction alone the sale will be confirmed under Section139 of the Hyderabad Land Revenue Act, which represents the final stage atwhich transfer by operation of law takes place. Dealing withthe effect of new Act, their lordships stated as under:

'The result of decision is that priorsanction under Section 47 is required only before the sale is confirmed underSection 139 of the Land Revenue Act. By virtue of the order of staypassed by this Court, the revenue sale in favour of the purchaser has not yetbeen confirmed.But it has to be noted that inview of the recent legislation, viz., Andhra Pradesh (Telangana Area) Tenancyand Agricultural Lands Act (third amendment) (Act 12 of 1969) which came intoforce on 18.3.1969 sections 47 and the other connected provisions of the mainAct have been omitted with the result that no sanction is at all necessarybefore confirming the sale in favour of the 5th respondent.'

88. From the above it is seen that though a sale hastaken place in terms of law, unless and until, possession is delivered pursuantto sale deed, the sale transaction is not complete and a reading of section 47makes it abundantly clear that prior permission of Tahsildar has to be obtainedwhen transfer takes place by operation of law.In other words,in an alienation where registered sale deed is executed, but possession was notdelivered and possession is subject to lis pendens, the question of obtainingprior sanction as required under section 47 of the Act does not arise.Admittedly, the sale has taken place when proceedings initiated by therespondent in the court of law is pending and he is in possession of theproperty, the question of delivering possession of the property will arise onlyin the event the vendor succeeds in the suit. Otherwise, the sale transactionis a nullity in the eye of law. It is also well settled principle that asale is complete only after execution of deed of conveyance followed bydelivery of possession. Since the possession could not be delivered owingto two factors i.e., firstly, the defendant was continuing in possession as atrespasser and secondly the lis initiated by him was pending, no occasion ornecessity arose to the plaintiff to invoke Section 47 or 50-B of the Act.

89. In this case, it is seen that the alienation tookplace in 1964 when both Sections 47 and 50-B are on the statute book and nopossession was delivered to the vendee since the appellant is in possession ofthe property and the suit filed by him for restraining the land owner frominterfering with his possession is pending in the Civil Court.Thevendee obtained the sale deed without possession subject to the result ofproceedings pending in civil court, the question of handing over possession tohim will arise only in the event, the owner of the land succeeds in thesuit. In other words, the vendee has to sail or sink with the vendor andhe cannot be placed in a better position than that of his vendor. If thevendor succeeds in the suit, then the question of delivering possession by thevendor of taking possession by the vendee would arise.In this case, bythe time the litigation came to an end, Section 47 was not only deleted fromthe statute book but also the time limit allowed to get the transactionvalidated under Section 50-B by approaching the Tahsildar expired. Inother words, neither Section 47 was there on statute book nor the procedure forgetting the invalid alienation validated was also not available by the time thefirst round of litigation came to an end.

90. His lordship Justice Venkatarama Shastry analyzedthe judgment in K. PARVATHAMMA (20 supra) in S.A. GAFFAR v. K. SAYANNA, 1974 (1) APLJ 316 inparagraph 15 of the judgment and observed:

'The result of the above authorities is thatwhen Section 47 was on the statute book the attachment and court sale ofagricultural lands could be held and only the confirmation has to be postponedtill the sanction was obtained under Section 47 of the Act. There couldbe no valid passing of title to the auction purchaser till the sanction wasobtained. It is only after his purchase in the court auction the auctionpurchaser has to apply for sanction under Sec. 47 of the Act. But whenonce Sec. 47 itself has been deleted from the Act there is no question of anyapplication being made by the auction purchaser and therefore the sale could beconfirmed if not already confirmed. The confirmation of sale madepreviously without prior sanction also though it was initially invalid wouldbecome valid as there is no machinery now in the shape of Section 47 in the Actto enable the auction purchaser to obtain the necessary sanction for gettingthe sale confirmed. It is no doubt true that the deletion would only haveprospective effect. But it could not have been the intention of thelegislature while deleting this section from the statute book to invalidate allconfirmations of sales made prior to such deletion without obtaining thenecessary sanction. In any event, there are no specific or clear words inthe statute to attribute such intention to the legislature.Inasmuchas there is no machinery now available to the court auction purchaser hispurchase cannot be held to be at the risk of invalidity on account of want ofsanction.'

91. We are in respectful agreement with the view takenby his lordship Venkatarama Shastry in S.A.GAFFAR's case (30 supra).

92. Adverting to the observation that mere deletion ofSection 47 or introduction of Section 50-B does not by itself validate alltransfers which were invalid and that such invalid transfers do not becomelegally enforceable unless the seal of approbation is put by the Tahsildar bygranting a certificate validating the sale, in an unreported decision of aDivision Bench of this Court in LACHAMMA v. K. CHINNA VENKATAREDDY, 1972 (2) APLJ 46 (SN) hislordships his Lordship Justice Venkatarama Shastry observed:

'Dealing with the deletion of Section 47vis--vis the right of the purchaser to claim part performance under Section53-A, their lordships held that such deletion would not deprive the purchaserfrom invoking the principles of part-performance.'

93. Referring to paragraph-14 of the above decision,his Lordship Justice Venkatarama Shastry observed that the ratio decidendi laiddown in that case applies to the facts in S.A.GAFFAR's case (30 supra). It isuseful to reproduce paragraph-14 of the decision in LACHAMMA (31 supra), whichis as under:

'We have already noticed that the above saiddecision of this court holds the agreement to sell not only as valid but iscapable of being enforced by a suit for specific performance.Whenthis requirement is complied with in the present case and when the possessiondelivered in pursuance of such agreement cannot be said now to be unauthorizedbecause of deletion of Sec. 47 of the act, we fail to see why the plea of partperformance should not be available to the defendant.The bench hadheld the possession is unauthorized in such cases because of sec. 47 read withSec. 98. But when Sec. 47 is now deleted not only contracts of transferand alienation made after 18.3.69 would be valid even if made withoutpermission and delivery of possession in pursuance of such contracts can hardlybe doubted as authorised. The position, in our judgment, would not differin a case where the agreement to sell was valid and Sec. 47 which made thepossession delivered in pursuance of such agreement unauthorized has beendeleted. The possession then can be considered as validly delivered andin such a case the doctrine of part performance can validly be invoked.'

94. The learned Judge having observed that the abovedoctrine applies to the facts of the case proceeded further and observed:

'But now that section has been deleted fromthe statute. It should be held that the confirmation already made should bedeemed to be valid in the same way as possession given under such agreementwhen Sec. 47 was in force which was held to be unauthorized by variousdecisions, now held by their lordships to be valid possession. On the sameparity of reasoning the confirmation of sale without the necessary sanctionunder Sec. 47 should also be held to be valid even after the deletion of sec.47 from the statute book.'

95. In arriving at this conclusion, the learned Judgerelied on another judgment of a Division Bench of this Court comprising ofJustice Gopal Rao Ekbote and Justice A.V.Krishna Rao, as they then were, inLetters Patent Appeal No. 176 of 1990 dated 9.12.1970 wherein again theirlordships were considering the effect of non obtaining of prior permission fromthe Tahsildar before the court auction is confirmed. Their lordshipswhile considering the plea of limitation observed:

'Even otherwise we do not think that there isany substance in this connection. It may be that at the time of theconfirmation of sale Section 47 was in force. But it has now been deletedwith the result that under the Act no prior permission to sell any agriculturalland is necessary. As a result, the court auction also can take place andthe sale confirmed without obtaining any such permission from any revenueofficer under the Tenancy Act. Even if it is now held that the confirmationwas bad, the matter will have to go before the auction authority because theprevious proceedings cannot be held to be bad. Again the authority willmerely confirm because there are no provisions which require now thatpermission should be obtained as was the case when the previous confirmationwas made. It will thus be a futile formality to hold the confirmation badand allow it to be again confirmed as in between third party's interest hasarisen and it would not cause any injury to the judgment-debtor.'

96. In other words, their lordships held that sinceSection 47 is deleted from the statute book even if the prior confirmation isto be formally set aside for want of permission under Section 47, the same willbe confirmed since the embargo stood lifted and the same would only amount toan empty formality. In the result, his lordship heldthat there is no necessity for fresh order of confirmation of court sale evenin a case where an order of confirmation has already been passed when Section47 was in force without obtaining necessary sanction.

97. Another thing which we have to see from the entirecase law referred to supra is that Section 50-B comes into operation only whenan alienation has taken place in violation of Section 47 of the Tenancy Act andpossession was delivered. If the possession is not delivered, thequestion of taking objection that the transaction is vitiated does notarise. Our view is fortified by the view expressed by the Division Benchof this Court in SYED JALAL (29 supra) wherein their lordships held:

'The contracts of sale was neither prohibitedby Section 47 nor invalid in law and what was prohibited was permanentalienation or transfer of agricultural land. Hence, the suit for specificperformance of contract of sale without prior permission under Section 47 couldbe maintained.'

98. From the above, it can be safely presumed thatunless possession is delivered at the time of alienation contemporaneously andif the possession has to be handed over at a later point of time, the obtainingof prior permission as contemplated under Section 47 is not required.From the above decisions, the following principlescan be deduced:

(a). Section 47 of the Tenancy Act neitherprohibited contract of sale nor declared it as invalid in law and what isprohibited is permanent transfer of agricultural lands and permanent transferis complete when possession is delivered. In other words, what isprohibited under Section 47 is delivery of possession of the property withoutobtaining prior permission of the Tahsildar.

(b). A vendee, who purchased the property withoutprior sanction of the Tahsildar, can lay a suit for specific performanceagainst the vendor to obtain prior permission and deliver possession of theproperty.

(c). In all these cases cited, the vendors havingentered into agreement of sale started contending that the transaction is hitby Section 47 of the Act, unlike the case on hand. In the instant case, aperson in illegal occupation of the land started contending that the sale deedexecuted by the original landlord in favour of the appellants is hit by Section47 of the Act after he was declared as a trespasser.

(d). In case of court auctions, the question ofobtaining permission of the Tahsildar will arise only after the auction is heldand the purchaser is ascertained before confirmation of the sale. Tillthen no permission as contemplated under section 50-B of the Act is requiredi.e., the auction held by the Court is valid and subsequent proceedings will bevitiated if no permission as required under Section 47 is obtained. Butas Section 47 was deleted from the statute by the time the case came up forconsideration, their lordships observed that even if the confirmation is setaside and the matter is remanded, the Court has to confirm the auction sinceSection 47 is not on the statute book and it is only an empty formality.Having taken the said view, the order of confirmation passed earlier wasupheld.

99. The learned counsel for the appellant also cited ajudgment of the Privy Council in SURAJ MULL (9 supra), for the proposition thatno court can enforce as valid that which competent enactments have declaredshall not be valid, nor is obedience to such an enactment, a thing from which acourt can be dispensed by the consent of the parties, or by a failure to plead,or to argue the point at the outset.

100. He also cited another decision of the SupremeCourt in MANNALAL (11 supra) for the proposition that where a contract, expressor implied, is expressly or by implication forbidden by statute, no court willlend its assistance to give it effect and what is done in contravention of theprovisions of an Act of the legislature cannot be made the subject of anaction.

101. Since we have taken the view that the alienationitself is not prohibited by Section 47 of the Tenancy Act by placing relianceon a catena of decisions of this Court, these decisions have no bearing on thefacts of the case on hand.

102. Nextly, he placed reliance on a judgment of theBombay High Court in DINBAI (10 supra) for the proposition that there cannot beany estoppel against law and no person can be precluded from pleading thatcertain orders are invalid and illegal as the question as to whether orders areillegal or invalid is a pure question of law and the question of estoppel doesnot arise in those circumstances. This decision is also of no help to thedefendant for the reason that we have considered his plea on merits and came tothe conclusion that the transaction itself is not hit by Section 47 of theTenancy Act.

103. In the light of the foregoing discussion, we holdthat the sale in favour of Muneera Sultana, the first plaintiff, on 28.7.1964pendente lite by the Ummatul Basheera Begum, the owner of the land, is not hitby Section 47 of the Tenancy Act as no possession was delivered to the firstplaintiff at that stage. By the time the disputes over the property aresettled, neither Section 47 was on the statute book nor the time limit fixedfor getting the alienation coupled with possession validated by following theprocedure prescribed under section 50-B of the Act was available. We are,therefore, of the opinion that the transaction is not hit by Section 47.For the sake of argument even if it is assumed that it is hit by Section 47,the machinery provided under Section 50-B for validating the illegaltransaction as valid was not available and it cannot be held that thetransaction has to be treated as void for want of sanction. Hence,the judgment and decree passed by the learned single Judge in C.C.C.A.No. 28 of1991 is confirmed on a different reasoning. The Letters Patent Appeal No.131 of 1999 is dismissed. There will be no order as to costs.

104. L.P.A. No. 134 of 1999:

105. This letters Patent Appeal is filed against thejudgment and decree in C.C.C.A.No. 29 of 1991 wherein his lordship JusticeRamesh Madhav Bapat dismissed the appeal and the suit holding that thedefendant perfected his right by adverse possession and the appellants/plaintiffsherein i.e., the respondents in L.P.A. No. 131 of 1999failed to prove their possession over the suit schedule property and he alsorejected the amendment application filed by the appellants/plaintiffs seekingadditional relief of recovery of possession.

106. The facts of the case are that the appellantsherein i.e., the respondents in L.P.A.No. 131 of 1999 filed suit in O.S.No.2549 of 1977, re-numbered as O.S.No. 1001 of 1978, for recovery of possessionof about 4000 square yards out of total extent of 9680 square yards, which ispopularly known as Bagh Ahmadiya Gulshan. Subsequently, they filed O.S.No. 1174of 1981 against the respondent herein i.e., the appellant in L.P.A.No. 131 of1991 to restrain him and his men from interfering with his possession over anextent of 4680 square yards by contending that when there was scramble forpossession between the parties, the Station House Officer, Kamatipur initiatedproceedings under Section 145 of the Code of Criminal Procedure in M.C.No. 13of 1965 and by an order dated 9.2.1966 the VIII City Magistrate before whom theproceedings have taken place held that the plaintiffs are in possession of theproperty. But the civil Court dismissed the suit for injunction rightlyas the respondent herein was found to be in possession of the property even inearlier proceeding. To that extent, perhaps, the Civil Court isright. In the appeal i.e., C.C.C.A.No. 29 of 1991, the appellant hereinfiled C.M.P.No. 20357 of 1977 seeking amendment of the relief. The learnedJudge dismissed the application by holding that the respondent has perfectedhis title to the property by adverse possession. Any suit for recovery ofpossession has to be filed within twelve years from the date of dispossessionas per Article 65 of the Limitation Act.

107. The following questions, to our mind, arise forconsideration:

1. Whether the respondent can raise the plea ofadverse possession?

2. Whether by allowing the amendment, the verynature of the suit is going to be altered and the rights accrued to therespondent are going to be affected?

108. Admittedly, till the year 1981, the case of therespondent is that his father and after his death himself were in possession ofthe property as tenants and the owner of the land cannot disturb their possessionas he acquired occupancy rights over the property as protected tenant.That plea was negatived by the common law court as well as revenue court underthe Act. For the first time, he set up a plea of adverse possession.The law relating to adverse possession was already referred to, by uswhile considering the case of parties in L.P.A.No. 131 of 1991. To bemore specific and for the sake of clarity, we would like to once again reproducethe principle stated in PERRY's case (18 supra), which is as under:

'It cannot be disputed that a person inpossession of land in the assumed character of owner and exercising peaceablythe ordinary rights of ownership has a perfectly good title against all theworld but the rightful owner. And if the rightful owner does not come forwardand assert his title by the process of law within the period prescribed by theprovisions of the statute of Limitation applicable to the case, his right isfor ever extinguished and the possessory owner acquires an absolutetitle.'

109. Keeping the aforementioned principle in view, wehave no hesitation to hold that the respondent herein was never in possessionof the property in the assumed character of owner and was exercising ordinaryrights of ownership or having title to the property. Only in the eventrightful owner fails to assert his title to the property within the prescribedperiod of limitation, the person in possession of the property acquires anabsolute title. Since the respondent was always pleading permissive possession,to our mind, he cannot set up the plea of adverse possession as he was never inenjoyment of the suit schedule property exercising rights of ownership to theknowledge of the true owner. The only question to be seen now is whetherthe respondent enjoyed the property for a statutory period of twelve or moreyears as a rightful owner to the knowledge of true owners.According to Mr. Suresh Kumar the proceedingsbefore this Court came to an end on 25.3.1969 and as the suit was filed in theyear 1978 the statutory period of twelve years did not expire from the timethis Court declared him as trespasser in the first round of litigation, but itis only after the judgment of the Civil Court on 19.11.1990 in the second roundof litigation for the first time the application for amendment of plaintseeking additional relief was filed by which time the statutory period oftwelve years expired and the respondent herein perfected his title to theproperty.He placed reliance on a decisionof the Supreme Court in MUNI LAL v. ORIENTAL FIRE & GENERAL INSURANCE CO.LTD.32 In the above case, the truck insured was lost in an act ofmisfeasance of the driver and then after exchange of notices, the owner of thetruck filed a suit seeking declaration that the appellant is entitled to lossof the truck from the Insurance Company and that suit was dismissed by thetrial court holding that the suit for mere declaration without consequentialrelief for payment of compensation for the loss of truck or specified amountfrom the respondent was not maintainable. In the appellate court, hefiled an application under Order VI Rule 17 of the Code of Civil Procedureclaiming the consequential relief of payment of quantified amount for loss oftruck. In paragraph-4 of the judgment, Justice K. Ramaswamy speaking forthe Bench observed:

'The question, therefore, is whether theamendment under Order 6, Rule 17 Civil Procedure Code could be ordered in thisbackground. Section 3 of the Limitation Act speaks of bar of limitationproviding that subject to the provisions contained in S. 4 to 24 (inclusive),every suit instituted, after the prescribed period shall be dismissed, althoughlimitation has not been set up as the defence. In other words, unless there isa power for the court to condone the delay, as provided under S. 4 to 24(inclusive), every suit instituted after the prescribed period shall bedismissed although limitation has not been set up as the defence. Order 6, Rule17 Civil Procedure Code envisages amendment of the pleadings. The court may atany stage of the proceedings allow either parties to alter or amend hispleadings in such manner and on such terms as may be just and all suchamendments shall be made as may be necessary for the purpose of determining thereal question of controversy between the parties. Therefore, granting ofamendment on such terms is also a condition for the purpose of determining thereal question in controversy between the parties. The amendment to grantconsequential relief sought for in this case, is as envisaged in proviso toSection 34 of the Specific Relief Act, 1963. That relief was, however,available to him, to be asked for, when the suit was filed.'

110. Having considered the various aspects of the case,the Supreme Court observed:

'On a consideration of this case in itsproper perspective, we are of the view that granting of amendment of plaintseeking to introduce alternative relief of mandatory injunction for payment ofspecified amount is bad in law. The alternative relief was available to beasked for when the suit was filed but not made. He cannot be permitted to amendthe plaint after the suit was barred by limitation during the pendency of theproceeding in the appellate court or the second appellate court.'

111. Countering the arguments of the learned counsel,counsel for the appellant cited the following decisions:

112. In RADHIKA DEVI v. BAJRANGI SINGH, : [1996]1SCR768 , the apexCourt observed that the amendment of the plaint, no doubt, is normally grantedand only in exceptional cases where the accrued rights are taken away byamendment of the pleading, the court would refuse the amendment, by relying onthe observations of the Supreme Court in LAXMIDAS DAHYABHAI KABARWALA v.NANABHAI CHUNILAL KABARWALA, : [1964]2SCR567 , which are as under:

'It is, no doubt, true that, save inexceptional cases, leave to amend under Order 6, Rule 17 of the Code willordinarily be refused when the effect of the amendment would be to take awayfrom a party a legal right which had accrued to him by lapse of time. But thisrule can apply only when either fresh allegations are added or fresh reliefssought by way of amendment. Where, for instance, an amendment is sought which merelyclarifies an existing pleading and does not in substance add to or alter it, ithas never been held that the question of a bar of limitation is one of thequestions to be considered in allowing such clarification of a matter alreadycontained in the original pleading. The present is a fortiori so. Thedefendants here were not seeking to add any allegation nor to claim any freshrelief which they had prayed for in the pleading already filed.'

113. In P.H. PATIL v. K.S. PATIL, : [1957]1SCR595 , their lordships ofthe Supreme Court expressed that the principles enunciated by Justice Batchelorin his judgment in KISANDAS RUPCHAND v. RACHAPPA VITHOBA, 33 BOMBAY 644 are correctprinciples in considering the application for amendment of the pleadings, whichare to the following effect:

'All the pleadings ought to be allowed whichsatisfy the two conditions (a) not working injustice to other side, and (b) ofbeing necessary for the purpose of determining the real questions incontroversy between the parties....but I refrain from citing furtherauthorities, as, in my opinion, they all lay down precisely the samedoctrine. That doctrine, as I understand it, is that amendment should berefused only where the other party cannot be placed in the same position as ifthe pleading had been originally correct, but the amendment would cause him aninjury which could not be compensated in costs. It is merely a particularcase of this general rule that where a plaintiff seeks to amend by setting up afresh claim in respect of a cause of action which since the institution of thesuit had become barred by limitation, the amendment must be refused; to allowit would be to cause the defendant an injury which could not be compensated incosts by depriving him of a good defence to the claim. The ultimate testtherefore still remains the same: can the amendment be allowed withoutinjustice to the other side, or can it not?'

114. In B.K.N.PILLAI v. P. PILLAI, : AIR2000SC614 , their lordships ofthe apex Court held:

'The purpose and object of Order 6 Rule 17Civil Procedure Code is to allow either party to alter or amend his pleadingsin such manner and on such terms as may be just. The power to allow theamendment is wide and can be exercised at any stage of the proceedings in theinterests of justice on the basis of guidelines laid down by various Highcourts and this court. It is true that the amendment cannot be claimed as amatter of right and under all circumstances. But it is equally true that thecourts while deciding such prayers should not adopt hyper technical approach. Liberalapproach' should be the general rule particularly in cases where the other sidecan be compensated with the costs. Technicalities of law should not bepermitted to hamper the courts in the administration of justice between theparties. Amendments are allowed in the pleadings to avoid uncalled formultiplicity of litigation.'

115. The said decision was followed in RAGU THILAKD.KOHN v. S.RAYAPPAN, (2001) 2 SCC 472. In VINEET KUMAR v. MANGAL SAIN, : [1984]2SCR333 their lordships of theSupreme Court held:

'Normally, amendment is not allowed if itchanges the cause of action.But it is well recognised thatwhere the amendment does not constitute an addition of a new cause of action,or raises a new case, but amounts to no more than adding to the facts alreadyon record, the amendment would be allowed even after the statutory period oflimitation.'

116. In K. CHINNA BIDDAMMA v. J. KRISHNAMA NAIDU, : 2001(1)ALD304 ,S.B.Sinha, C.J., as he then was, held that amendment of plaint seekingadditional relief of declaration of title in a suit for permanent injunctioncannot be refused on the ground of laches and that even if the relief is barredby limitation, it could be included by way of amendment. In taking the saidview, his lordship relied on the judgment of the Supreme Court in LEACH ANDCO., LTD. V. M/S. JARDINE SKINNER AND CO., : [1957]1SCR438

117. In OM PRAKASH GUPTA v. RANBIR B. GOYAL, : [2002]1SCR359 , theirlordships of the Supreme Court held:

'The ordinary rule of civil law is that therights of the parties stand crystalised on the date of the institution of thesuit and, therefore, the decree in a suit should accord with the rights of theparties as they stood at the commencement of the lis.However, theCourt has power to take note of the subsequent events and mould the reliefaccordingly subject to the following conditions being satisfied: (i) that therelief, as claimed originally has, by reason of subsequent events, becomeinappropriate or cannot be granted; ii) that taking note of such subsequentevent or changed circumstances would shorten the litigation and enable completejustice being done to the parties and iii) that such subsequent event isbrought to the notice of the court promptly and in accordance with the rules ofprocedural law so that the opposite party is not taken by surprise.'

118. In PASUPULETI VENKATESWARLU v. MOTOR AND GENERALTRADERS, : [1975]3SCR958 , while considering the plea of taking subsequent events for mouldingthe relief in a matter arising under the Rent Control Act, his lordship JusticeKrishna Iyer observed:

'It is basic to our processual jurisprudencethat the right to relief must be judged to exist as on the date a suitor institutesthe legal proceeding. Equally clear is the principle that procedure is thehandmaid and not the mistress of judicial process.If a fact,arising after the lis has come to court and has a fundamental impact on theright to relief or the manner of moulding it, is brought diligently to thenotice of the tribunal, it cannot blink at it or be blind to events whichstultify or render inept the decretal remedy. Equity justifies bending therules of procedure where no specific provision or fair play is violated, with aview to promote substantial justice subject - of course, to the absence ofother disentitling factors or just circumstances. Nor can we contemplateany limitation on this power to take note of updated facts to confide it to thetrial court. If the litigation pends, the power exists, absent otherspecial circumstances repelling resort to that course in law or justice.Rulings on this point are legion, even as situations for application isequitable rule are myriad.'

119. From the above decisions, it could be seen thatthe rights of the parties stand crystalised on the date of institution of thesuit and the decree in a suit should accord with the rights of the parties asthey stood at the commencement of the suit. When once theamendment is allowed, it dates back to the date of filing of the suit.Further, even if the amendment is time barred or belated one, the court shouldnot blink in its duty in moulding the relief by amending the rules of procedureif no specific provision of law or rule of fair play is violated as it promotessubstantial justice.

120. In the case on hand, both parties knew pretty welltheir claims over the suit schedule property. In fact, the defendant wasdeclared as a trespasser in the earlier proceedings by this Court and he is inoccupation of the property unauthorisedly.For reasons bestknown to the counsel appearing for the plaintiffs herein, they have chosen tofile the suit for injunction though the civil court recorded a finding that thedefendant is in possession of the property as a trespasser. The mistake committedby the counsel was realized only after the judgment of the court below.It is true that the defendant was in unauthorized possession of the propertyafter the Tenancy Court refused to grant occupancy certificate in the year 1974and the suit for injunction was filed in the year 1978. Had they soughtfor relief of recovery of possession, the defendant would have no answer to theclaim because he was declared a trespasser already, except the only plea thatwas raised in the other suit that the alienation in favour of the firstplaintiff was hit by Section 47 of the Tenancy Act. Now we have taken the viewthat the alienation in the year 1964 is not hit by Section 47 of the TenancyAct and the possession of the property was not delivered to the plaintiffs andthey purchased the property pendente lite i.e., subject to the result of civilproceedings pending at that time. By the time the civil court proceedingsended in their favour, Section 47 was not on the statute book and as such itcannot be held that the transaction is void or illegal. It is true thatthe plaintiffs woke up only after the suit for injunction was dismissed and apetition seeking additional relief of recovery of possession was filed. We are afraid, if we do not allow the amendment, grave injusticewould be caused to the plaintiffs, who are the real owners of the property anda trespasser would knock away the property by succeeding ontechnicalities. If such a thing is allowed to take place, it will be aslur on the system of adjudicatory process. As their lordships of theSupreme Court observed that to do substantial justice amendment has to be allowedif the loss caused cannot be compensated in terms of money and if the otherparty is not going to suffer. Hence, as observed by JusticeKrishna Iyer that the procedural laws should be handmaid but not the mistressof judicial process and the Court shall not blink or be blind to the eventswhich stultify or render inept the decretal remedy and equity justifies inblending the rules of procedure where no specific provision or fair play isviolated with a view to promote substantial justice. We respectfully follow theobservations of his lordship Justice Krishna Iyer to render substantial justicebetween the parties. Further it can also be seen that by allowing theamendment, no fresh affidavits are needed, no additional issues need be framedand no further evidence be let in as the earlier suit filed by the appellantfor recovery of possession and this suit for injunction were clubbed togetherand common judgment was rendered by the court below. When once theplaintiffs succeeds in the first suit, the same principle has to be applied inthe second suit also. Had the advocate appearing for the plaintiffsobserved minimum professional knowledge, his clients would not have been placedin such an awkward situation and their rights would not have been in jeopardy. For the mistake committed by the advocate, we feel that the partycannot be penalized. On this count also, we would liketo allow the amendment petition for rendering substantial justice between theparties and to uphold the majesty of law and convey a message to theunscrupulous litigants that they cannot run away from the courts by takingadvantage of the procedural laws.

121. Any prudent person having lost case would havehanded over the possession to the real owner. But in this case, thedefendant having lost the suit as well as the proceedings under the Tenancy Actin 1974 did not hand over the possession and for that reason the plaintiffshave to once again approach the civil court and start the litigationafresh. From the above, the conduct of the defendant in squatting overthe property even after he was declared as trespasser cannot beappreciated. For the said reason we allowed the amendment application.

122. For the foregoing discussion, we allow theapplication filed under Order VI Rule 17 of the Code of Civil Procedure seekingadditional relief of recovery of possession. Once theamendment is allowed to be carried out, the natural consequences will be thatthe result in the first appeal shall follow the suit. In other words, theappellants/plaintiffs have to succeed in L.P.A., as there is no other defencefor the defendant to contest either the suit or at any stage of proceedingstill the stage of L.P.A. Accordingly, we set aside the judgment anddecree of the learned single Judge in C.C.C.A.No. 29 of 1991 and allowL.P.A.No. 134 of 1999.

123. Counsel for the defendant/trespasser contends thatthere is a standing crop and he requires time to hand over vacant possession ofthe land, but the counsel for the land owner submits that there is no crop.Without going into this controversy, we are inclined to give twomonths time to vacate the land and hand over the vacant possession of theproperty to the owner of the property. We are under the impression that thecounsel for the defendant/trespasser is seeking time for eviction so as to goto Supreme Court. When asked, the learned counsel states that in the event oflosing the case in supreme Court, his client is prepared to vacate the premisesand hand over the vacant possession the very next day without contesting theExecution Petition. On this undertaking, we are inclined to give twomonths time from the date of receipt of a copy of this order for handing overvacant possession of the property to the owner of the land. If hefails to get any order from the Supreme Court, he shall vacate the property andhand over possession on the expiry of the time granted by this Court. Therewill be no order as to costs.