Rajulagari Ellamma and Others vs Sri Pedda Jeeyangar Mutt

R. Bayapu Reddy, J.—This appeal is filed by the defendants in O.S.No. 210 of 1982 on the file of the Additional Subordinate Judge, Tirupati, questioning the decree and Judgment of the lower Court dated 25-4-1985. The decree was passed for recovery of possession of suit property and for damages.

The plaintiff in the suit who is the present respondent is Sri Pedda Jeeyangar Mutt, Tirupati and it has filed the suit against the defendants seeking recovery of possession of the suit property and damages for use and occupation for the period from 1979 to 1981 at the rate of Rs. 2,000/- per year. It was contended by the plaintiff that one R. Krishna Reddy was the cultivating tenant of the suit land belonging to the Mutt on an yearly rent of Rs. 1,000/-and he died on i5-6-1975 leaving behind his sons by name Sri Obulu Reddy and defendants 6 and 7 as his legal heirs and that after the death of R. Krishna Reddy his sons did not excercise the option to continue the tenancy as contemplated u/s 12 of the Andhra Tenancy Act (old). They however, continued to occupy and cultivate the land and derive the profits. Obulu Reddy who is the son of R. Krishna Reddy also died prior to the filing of the suit and his heirs (defendants Nos. 1,2 and 5) were brought on record and they have been enjoying their lands by cultivating and deriving the profits and inspite of the notice issued by plaintiff on 27-7-1980 calling upon the defendants to deliver possession of the suit land, they failed to do so, and as such O.S.No. 210 of 1982 was filed seeking recovery of possession of the lands and also damages for use and occupation from the defendants.

The defendants contested the suit contending that they in fact, exercised the option to continue as tenants as contemplated u/s 12 of the Andhra Tenancy Act and continued to cultivate the lands as tenants even after the death of R. Krishna Reddy and that they are not trespassers, and, therefore, the suit is not maintainable for recovery of possession or for damages.

On the basis of the evidence placed before it, the lower Court came to the conclusion that the sons of R. Krishna Reddy failed to exercise the option to continue as tenants after the death of R. Krishna Reddy and as such they cannot be treated as cultivating tenants and that the plaintiff is therefore, entitled to seek their eviction by filing the suit in the Civil Court. The Trial Court also came to the conclusion with regard to the quantum of damages by stating that Rs. 2,000/- per year as claimed by the plaintiff is excessive and such claim is not established, and that the plaintiff is however, entitled to claim damages for use and occupation at me rate of Rs. 1,000/- per year for 1979-80 and 1980-81 as he is not entitled to claim damages for 1978-79 as the claim for that period was already covered in the earlier suit between the parties.

The defendants have filed the present appeal questioning the findings of the lower Court regarding the right of the plaintiff to recover possession and damages for use and occupation, and the decree and Judgment passed by it in that regard. The respondent herein, who is the plaintiff, has filed the cross- objections questioning the quantum of compensation granted by the lower Court, contending that the lower Court, has erred in granting the compensation at the rate of Rs. 1,000/- per year instead of Rs. 2,000/- as claimed by it.

The points that therefore, arise for consideration in the present appeal are:

(1) Whether the appellants herein are the cultivating tenants and whether the suit filed by the respondent for recovery of possession and damages for use and occupation is not maintainable?

(2) Whether the quantum of damages for use and occupation granted by the lower Court is not just and proper and whether it should be enhanced at the rate of Rs. 2,000/- per year as contended by the respondent?

It is now admitted that one R. Krishna Reddy, who is the father of defendants 6 and 7, and one Obulu Reddy, was the cultivating tenant of the lands belonging to the plaintiff Mutt and that he died on 15-6-1975 leaving behind his three sons as his legal representatives. Section 12 of the Andhra Tenancy Act 1956, amended by amendment Act 39/74 which came into force with effect from 11-7-1980, provides that if the cultivating tenant dies, his widow and his legal heirs shall have the option to continue the tenancy for the unexpired portion of the lease on the same terms and conditions under which the deceased cultivating tenant was holding, and such option shall be exercised by serving a notice in writing on the landlord within a period of three months from the date of demise of such cultivating tenant. In the present case the evidence adduced on behalf of the appellants in the suit dearly shows, as rightly held by the lower Court, that no such option was exercised by the three sons of R. Krishna Reddy by serving the notice in writing on the plaintiff Mutt within the specified period to continue the tenancy rights. In the written statement the tenants contended that Obulu Reddy and other sons of R. Krishna Reddy had expressed their willingness to continue the tenancy rights after the death of R. Krishna Reddy and that as a matter of fact there is no need to exercise any such option. During the course of evidence, D.W.I (7th defendant) came up with the version that they gave an application to the plaintiff in writing thereby exercising their option to continue the tenancy rights after the death of R. Krishna Reddy. But such version put forward during the course of his evidence does not find place in the written statement filed on behalf of the defendants. Except making such allegations during the course of his evidence, there is no material put forward by defendants to show that the sons of R. Krishna Reddy had infact exercised such option by issuing notice or presenting the application to the landlord. Therefore, the lower court rightly came to the conclusion that the defendants did not comply with the provisions of Section 12 of the Andhra Tenancy Act by exercising their option to continue 40 the tenancy rights by serving the required notice upon the landlord. It is however, sought to be contended by the learned counsel for the appellants that no written notice Is necessary for exercising such option and that an oral representation exercising such option will serve the purpose as contemplated in Section 12 of Andhra Tenancy Act. But even with regard to such oral 45 representation, there is no evidence put forward by the defendants, and the evidence of D.W.I cannot be believed as it is not in conformity with the earlier version put forward in the written statement regarding the mode of exercising the option. Under such circumstances, the lower Court rightly came to the conclusion that the defendants failed to exercise the option by serving the required notice upon the landlord as contemplated u/s 12 of Andhra Tenancy Act, and that therefore, they cannot be considered as cultivating tenants after the expiry of the period of three months subsequent to the death of R. Krishna Reddy.

With regard to the mode of service of notice as contemplated u/s 12 of Andhra Tenancy Act and failure of the Legal Representatives of the deceased tenant to exercise such option regarding their tenancy rights, the lower Court has referred to the earlier decisions of this Court which are sought to be relied upon by the respondent in the present appeal also. In the decision reported in "Kallam Jampa Reddy v. Yarava Krishna Reddy 1979 (2) ALT 258 : 1979 (2) An.W.R. 241, similar point was raised before the Division Bench of this Court under The Andhra Tenancy Act prior to its amendment effected by amendment Act 39/74 which came into force with effect from 1-7-1980. It is observed by the Division Bench of this Court in the said decision that the option as contemplated in Section 12 of Andhra Tenancy Act has to be exercised by serving the notice in writing and that in view of such specific provision of Section 12, it is not relevant to consider whether the defendant in that suit had made any real request for exercising such option. It is further observed in that decision that when once option as contemplated in Section 12 of the Andhra Tenancy Act is not exercised by serving notice upon the landlords the Legal Representatives of the deceased tenant would be in the position of trespassers and that the landlord will be entitled to seek their eviction treating them as trespassers. In the case concerned in that decision, the legal representatives of the deceased tenant appear to have sent their rent amount by way of money order expressing their intention to continue as tenants after the death of the deceased tenant. It was sought to be contended under such circumstances in that case that such money order sent by the legal representatives of the deceased tenants would amount to service of notice to exercise the option as contemplated u/s 12 of the Andhra Tenancy Act. The Division Bench of this Court rejected such contention raised on behalf of the legal Representatives of the deceased tenants observing that mere sending of the rent already due by money order would not constitute a notice in writing, exercising their option to continue as tenants u/s 12 of Andhra Tenancy Act. It is further observed by the Division Bench that if sending of the money order, by itself cannot constitute notice in writing within the meaning of Section 12, it cannot be converted into such a notice by the mere fact that the plaintiff allowed the defendant therein to continue in possession of the land for a period of one year without taking any action. The said observations made by the Division Bench of this Court provide a clear answer for the contention of the learned counsel for the appellants herein that the landlord failed to take any action against them for recovery of possession till 1982, even though R. Krishna Reddy, the original cultivating tenant died in 1975.

In the present case the learned counsel for the appellant has also tried to contend that the appellants were paying rent to the respondent and the respondent was accepting such rent for the period subsequent to the death of R. Krishna Reddy and that such conduct on the part of landlord in accepting the rent amounts to consent given by him to continue the appellants as tenants. But there is no substance in such contention. As a matter of fact the appellants did not pay any rent to the landlords subsequent to the death of R. Krishna Reddy and such conduct on their part forced the landlord to file the suit O.S. 495 of 1980 for recovery of arreas of rent and the suit was also decreed. Even if it is to be said that the landlord was receiving the amount as rent paid by the legal representatives of the deceased tenant, it cannot be said that they have excercised their option by serving a notice as contemplated u/s 12 of the Andhra Tenancy Act as pointed out by the Division Bench of this Court in the above cited decision. In another decision of our High Court, which was also referred to by the lower Court and which is also sought to be relied upon by the learned counsel for the respondent, is the decision reported in M. Ramayya v. M- Govindu 1966(1) ALT 424 : 1966 (1)An.W.R. 352, wherein it is observed that when once an option as contemplated u/s 12 of Andhra Tenancy Act, is not excercised by the legal representatives of the deceased tenant, they cannot be considered as cultivating tenants and they have to be treated as mere trespassers and that civil suit for recovery of possession by the landlord is maintainable under such circumstances. Therefore, in the present case the civil suit filed by the present respondent seeking recovery of possession and damages for use and occupation from the appellants herein is maintainable, as rightly held by the lower Court. Therefore, there are no valid reasons to interfere with such orders of the lower Court.

The lower Court granted the relief of damages for use and occupation at the rate of Rs. 1,000/- per year and the respondent Mutt has filed cross- objections contending that the lower Court ought to have granted damages for use and occupation of the land at the rate of Rs. 2,000/- per year as prayed for in the suit. The lower Court has discussed this aspect in para 11 of its judgment. After considering the evidence of P.W.I and D.W.I and having regard to the quantum of amount that was given previously towards rent when R. Krishna Reddy was the cultivating tenant and also by taking into consideration the nature of crops that are being raised in the said land, the lower Court came to the conclusion that the damages for use and occupation can be granted at the rate of Rs. 1,000/- and not at the rate of Rs. 2,000/- as prayed for in the suit. The only evidence on behalf of the plaintiff regarding the quantum of damages consists of the evidence of P.W.I who is a Clerk of the plaintiff-Mutt. In view of all Such circumstances the quantum of damages granted by the lower Court at the rate of Rs. 1,000/- per year cannot be said to be unreasonable and as such, there are no merits in the cross-objections filed by the respondent herein.

The appeal is dismissed with costs of the respondent. Cross-objections are also dismissed.