Chandaram Mahalakshmi Naidu and Others vs Dadi Venkata Nookaraju

G. Bikshapathy, J.—The Appellants are the Defendants in the Suit. They are assailing the judgment and decree of the learned III Additional Judge, Visakhapatnam in A.S.No. 4 of 1979, dated 30-9-1988 reversing the judgment and decree of the Principal District Munsif, Anakapalle in O.S.No. 444/76. For the sake of convenience, the parties are referred to in this Second Appeal as they are arrayed in the suit.

Plaintiff filed a Suit O.S.No. 444/76 on the file of the Additional District Munsif, Anakapalle for recovery of 0.92 cents of dry land and for profits of Rs. 900/- @Rs. 300/- per year and subsequently for interest and costs.

The case of the Plaintiff was that the lands described in the suit schedule were purchased from the previous owners Sri Kakatala Suryam on 15-9-1989 under a Registered sale deed. Since then he has been in possession and enjoyment of the suit land and the Defendants attempted to trespass into the land. He made a complaint to the police and thereafter he filed a suit O.S.No. 168/75 for permanent injunction restraining the Defendants from interfering with the plaintiffs possession and enjoyment of the suit schedule property. However, the suit was dismissed on the ground that the plaintiff was not in possession and therefore present suit has been filed for declaration and possession. It is the case of the plaintiff that the earlier Tenant Sri Chainulu, the father of the Defendant died in the year 1970 and thereafter the Defendants did not exercise the option as required u/s 12 of Andhra Tenancy Act by issuing a statutory notice within three months from the date of the death of earlier tenant Sri Chainulu. Therefore, the Tenancy came to an automatic end with the death of Sri Chainulu. The Defendants were not cultivating tenants and they were only trespassers and therefore the suit was laid for eviction and also for mesne profits. It was contested by the Defendants stating that their father Chainulu was cultivating the land for the last several years even prior to the purchase of the land by the plaintiff. Even after the death of Mr. Chainulu, they continued to cultivate the land. Earlier yearly rent was Rs. 30/- and later it was enhanced to Rs. 40/- and subsequently after the death of Mr. Chainulu it was increased to Rs. 150/- per year. It is also their case that when their father died, the plaintiff agreed to continue the lease on enhanced lease amount of Rs. 150/- per year. But, however the plaintiff with the help of the influential persons in the town has been harassing the Defendants. On the basis of the pleadings, the trial Court framed the following issues:

(i) Whether the Plaintiff is entitled for possession of the suit property?

(ii) Whether the Plaintiff is entitled for mesne profits and if so what amount?

(iii) To what relief?

On behalf of the Plaintiff, P.W.1 was examined and Exs.A-1 to A-8 were marked. On behalf of the Defendants, D.Ws.1 to 4 were examined and Exs.B-1 to B-12 were marked. The lower Court after considering the evidence both oral and documentary came to the conclusion that there is a jural relationship of Land Lord and Tenant between the Plaintiff and the Defendants and therefore it held that the Court has no jurisdiction to entertain the suit and consequently, the suit was dismissed with costs on 17-11-1978. Aggrieved by the decree and judgment of the trial Court, the plaintiff filed Appeal A.S.No. 4/75 before the lower appellate Court contending that the trial Court failed to appreciate that the suit was filed for possession of the property on the ground that the Defendants were trespassers. It was also contended that the Defendants admitted the title of the plaintiff and also that they did not exercise the option as required under the Act within three months from the date of the death of their father and therefore they have to be considered as Trespassers and they have to be evicted through the process of Civil Court only and not through the proceedings under the Act. The lower appellate Court reversed the judgment and decree of the trial Court by judgment dated 31-7-1981. The defendants carried the matter in Second Appeal No. 974/81 before this Court. By judgment dated 22-1-1981 this Court remanded the matter to the lower appellate Court for fresh consideration. Thereupon the, matter was again considered by the lower appellate Court and passed judgment on 30-9-1988 again setting aside the judgment and decree of the trial Court.

The issue that arises for consideration is whether the judgment and decree of the lower appellate Court is sustainable?

It is not in dispute that the father of the Defendants was the Tenant and he died in or around November/December,1970. It is also admitted case that the Defendants did not exercise the option as required u/s 12 of the Andhra Tenancy Act. Therefore, the situation that emerges is that there was no Tenancy at all in the eye of law. But, however, the Defendants sought to put up a plea that they have been continuously cultivating the land even from the date of the death of their father and therefore even assuming that the jural relationship as Land Lord and Tenant between the plaintiff and the Tenant was snapped on account of the non-exercise of the option, inasmuch as there was a fresh lease in the year 1970 after the death of the father of the defendants and therefore the defendants cannot be said to be trespassers. u/s 10 of the Act, the lease entered between the Land Lord and Tenant is to be in writing and for minimum period of six years. Admittedly, there was no written tenancy muchless the period of tenancy. The Defendants tried to base their claim on Ex.B-1 cist receipt, Ex.B-2 office copy of the Lawyer''s notice and Ex.B-3 chit and also Ex.B-9 certified copy of village accounts. They also filed postal receipt of Money Order. The lower appellate Court found that these documents did not establish that there was a tenancy between the parties. Even in the Lawyer''s notice it was not stated that the defendants were continuing under a tenancy. With regard to judgment in O.S. No. 168/75, the lower appellate Court held that it does not operate as constructive Resjudicata, as no issue was framed with regard to the relationship of Land Lord and Tenant between the Plaintiff and the Defendants. Even in the Ex.B-9 certified copy of No. 2 cultivation account, the name of Mr.Chainulu was shown as cultivator of suit land from Fasli, 1361 and in Fasli, 1383, the 1st defendant is shown as cultivator. But, there was no evidence to show that the defendant was cultivating as a tenant. Therefore, the lower appellate Court after considering the said document also held that there was no jural relationship of Land Lord and Tenant. Finally, the lower apellate Court passed a judgment and decree on 30-9-1993 reversing the judgment of trial Court.

On the earlier occasion, when the matter was carried in Second Appeal, it was remanded for fresh consideration of the matter with reference to Exs.B-1 to B-3 and also the evidence on record. The relevant para is extracted below:

"In view of the respective contentions, the only question that arises for consideration is whether the Appellants are tenant or trespassers. Unfortunately, the Appellate Court has not considered any evidence, oral or documentary in arriving at the conclusion that there is no jural relationship of land lord and tenant. The trial Court has recorded a categorical positive finding, on a consideration of the oral and documentary evidence. The appellate Court being the final Court of fact, has to consider the entire evidence and record its findings. In the normal course, in exercise of the power u/s 103 C.P.C. I would have considered the evidence afresh and given a finding to avoid prolongation of the matter. But, in this case, I have seen that the impact and effect of the material evidence more particularly Ex.B-9,10(i) account was not adverted to either by the trial Court or the appellate Court. Added to that, Exs.B-1, B-2, B-3 also throw a flood of light in this case. Their effect was not considered by the appellate court. More over, the oral evidence also is of importance in this case for consideration, under these circumstances, I decline to consider the evidence myself, by exercising the power u/s 103 C.P.C, and remit the matter to the appellate Court for consideration afresh and to dispose of the matter on merits. The appeal is accordingly allowed and the decree of the apellate Court is set aside and the matter is remitted to the appellate Court to consider the matter afresh and dispose it of according to law. No costs."

I have gone through the judgment and decree of the lower appellate Court. The reasons assigned by the lower appellate Court cannot be said to be untenable. He has considered the relevant documents and held that there was no subsisting lease. Exs.B-9 cannot be said to create any jural relationship for one year. It was stated that the Defendant No. 1 was cultivating but, there was no evidence to prove that the Defendant No. 1 was cultivating the land right from 1970 to 1978, when the evidence is led in on behalf of the Defendant No. 1. Therefore, the lower appellate Court was right in coming to the conclusion that Ex.B-9 did not establish the jural relationship. There was also no evidence to say that the Defendants were cultivating the land as tenants. On the other hand, the case of the Plaintiff is that the Defendants trespassed into the land in 1974 and therefore he has to take proceedings by filing a suit in O.S.No. 168/75 and on its dismissal, another suit is filed by him in O.S.No. 444/76. The reasoning assigned by the lower appellate court cannot be said to be illegal and they do not suffer from any infirmity. When, once the tenancy is not established, the Defendants cannot claim any relief. It was categorically found by the lower appellate Court that the Defendants, were only trespassers as their occupation is not supported by any valid document subsequent to the death of their father. Though, the learned Counsel for the Appellants cited number of decisions with regard to the oral tenancy and submitted that there need not be any written tenancy and it need not be for six years and he also submitted that in view of the amendment, the tenancy has to be in perpetuity. I need not consider all these aspects in as much as, the primary ingredient that there was jural relationship of land lord and tenant was not established.

Under these circumstances, I do not find any merits in the Appeal. Accordingly, the Second Appeal is dismissed without costs.