Andhra HC (Pre-Telangana)
Sri Sangameshwara Swamy Temple, Rep. By ... vs The Principal District Munsif And Ors. on 27 December, 1996
Equivalent citations: 1997(1)ALT779, 1997 A I H C 2098, (1997) 1 ANDHLD 751, (1997) 1 APLJ 266, (1997) 1 ANDH LT 779
JUDGMENT Krishna Saran Shrivastav, J.
1. Commonality of questions of law and similarity of facts incline me to dispose of these eight revisions under Article 227 of the Constitution of India by this common judgment.
2. It is no longer in dispute before me that the 1st petitioner-temple is the owner of agricultural lands in question and the remaining petitioners have been inducted as lessees (for short 'second lessees') in respect of different extents of agricultural lands out of the agricultural lands in question in pursuance of the auction held by the 1st petitioner-temple on 12-3-1992 while the 1st respondent is the Principal District Munsif, the second respondent is the Tenancy Appellate Tribunal-cum-Principal District Judge and the remaining respondents claim themselves to be the lessees (for short 'first lessees') in respect of the same extents of agricultural lands out of the agricultural lands in question for many years from before 12-3-1992, that is to say, the date on which the leasehold rights in those lands had been sold by auction. The first lessees filed a suit jn O.S. No. 40/92 on the file of the Principal District Munsif, Tenali, for permanent injunction along with an application for temporary injunction which was granted to them subject to payment of deposit of Makta for the year 1991-92 before the end of the month of July, 1992, which they paid. The 1st petitioner-temple challenged the order in CMA No. 18/92 and the order of temporary injunction was reversed. The first lessees unsuccessfully preferred a revision petition before the High Court, bearing No. 3911 /92. The suit was dismissed on the ground that the Civil Court has no jurisdiction to try the dispute between the landlord and the tenants. In the meantime, the second lessees filed separate petitions before the Principal District Munsif, Tenali, Under Section 16 of the Andhra Pradesh (Andhra Area) Tenancy Act of 1956 against the 1st petitioner-temple and the first lessees for a declaration that they are sub-lessees of the first lessees and for permanent injunction restraining the first petitioner as also the first lessees from disturbing their possession. The first lessees also filed separate petitions for permanent injunction against the petitioner-temple and the second lessees Under Section 16 of the Andhra Pradesh (Andhra Area) Tenancy Act of 1956 alleging that they are the cultivating tenants of the agricultural lands in question and the first petitioner-temple as also the second lessees are trying to disturb their possession on the ground that the 1st petitioner-temple had inducted the second lessees as lessees because they were the successful bidders in the auction held on 12-3-1992 to different extents of lands out of the agricultural lands in question. They also filed separate applications for temporary injunctions against the second lessees.
3. The Principal District Munsif granted temporary injunction to all the first lessees in different ATCs. Nos. 14/93 to 21/93 by a common order dated 11-2-1994 and dismissed the applications for temporary injunction filed by the second lessees in different ATCs. Nos. 10/92 to 19/92 through a common order on 4-8-1992. The petitioner-temple and the second lessees preferred ATAs. Nos. 10/94 to 17/94 against the order of temporary injunction dated 11-2-1994 before the Tenancy Appellate Tribunal and the second lessees preferred ATAs Nos. 48/92 to 57/92 against the rejection of their applications for temporary injunctions against the petitioner-temple and the first lessees. All the appeals have been rejected by the Tenancy Appellate Tribunal-cum-Principal District Judge, Guntur, by a common order dated 29-1-1996.
4. The petitioner-temple and the second lessee in ATA No. 15/94 have preferred CRP No. 1064/96; the petitioner-temple and the second lessees in ATA No. 10/94 have preferred CRP No. 1068/96; the petitioner-temple and the second lessees in ATA No. 11/94 have preferred CRP No. 1072/96; the petitioner-temple and the second lessees in ATA No. 17/94 have preferred CRP No. 1096/96; the petitioner-temple and the second lessees in ATA No. 13/94 have preferred CRP No. 1139/96; the petitioner-temple and the second lessees in ATA No. 12/94 have preferred CRP No. 1202/96; the petitioner-temple and the second lessees in ATA No. 16/94 have preferred CRP No. 1277/96 and the petitioner-temple and the second lessees in ATA No. 14/94 have preferred CRP No. 1603/96. But, the unsuccessful second lessees-the appellants have not challenged the order of the Tenancy Appellate Tribunal-cum-Principal District Judge, Guntur, dated 29-1-1996 through which their respective appeals, that is ATAs.48/92 to 57/92 have been dismissed and the aforesaid order (common order dated 29-1-1996) confirming the rejection of their applications for temporary injunctions passed by the District Munsif has not been disturbed. The petitioner who was one of the respondents in the said appeals bearing Nos. ATA 48/92 to 57/92 also did not challenge the order of the first appellate Court whereby the applications of the second lessees for temporary injunction had been rejected.
5. Put briefly, the case of the first lessees is that the Paripalanakarta of the petitioner-temple had inducted them as lessees of different extents of land out of the agricultural lands in question about 30 years before the year 1992 and they were paying regularly the Makta to the petitioner-temple through the Paripalanakartha. On 28-9-1991, the petitioner-temple claimed arrears of Makta for the year 1991-92 alleging that they were in arrears of Makta. Thereupon, they paid the same to it. But on 12-3-1992 the petitioner-temple sold the leasehold rights in different extents of lands out of the agricultural lands in question separately to the second lessees who tried to disturb their possession. Therefore, they filed a suit for permanent injunction and obtained temporary injunction, but later it was found that the suit was not maintainable due to the relationship of landlord and tenant and, therefore, they filed separate applications Under Section 16 of the Andhra Pradesh (Andhra Area) Tenancy Act of 1956 for declaration that they are cultivating tenants and for permanent injunction because they are cultivating tenants and, therefore, the petitioner-temple is not entitled to sell the leasehold rights by public auction or otherwise until they are evicted in due course of law. While the case of the 2nd lessees and the petitioner-temple is that the Paripalanakartha of the petitioner-temple was not at all authorised to induct anybody as lessees in the agricultural lands in question, they were only entitled to assist the hereditary trustees. The demand of Makta was made under erroneous conception and, therefore, it is of no value. The petitioner-temple had validly sold the leasehold rights by public auction. The first lessees were never in possession of any extent of land out of the agricultural lands in question, particularly after the leasehold rights were sold and they did not pay any Makta to the petitioner temple.
6. The case of the second lessees, as set out in their respective applications, in brief, is that they were sub-lesseess of the first lessees and actually they were in cultivating possession of the agricultural lands in question.
7. The trial Court observed that the case of the second lessees is mutual contradictory because they claim themselves to be the sub-lessees of the first lessees on one hand, but claim themselves to be the direct lessees of the petitioner-temple by virtue of the auction of leasehold rights on 12-3-1992 on the other. The trial Court also found that there is no documentary evidence on record in favour of either parties to the proceedings regarding the possession of the agricultural lands in question but by virtue of the temporary injunction order in their favour in O.S. No. 40/92, though for some time, it establishes that they were the cultivating tenants in respect of the different extents of lands out of the agricultural lands in question and merely because of forceful taking away the crops by the second lessees for one year cannot disentitle the first lessees to claim that they are in continuous possession of the agricultural lands in question and failure to pay the lease money will not disentitle them from obtaining an injunction in their favour, particularly when the petitioner-temple had demanded the arrears of Makta for the year 1991-92 from them.
8. The lower appellate Court relied on the notices of demand of Makta for the year 1991-92 which are at Exs.A-1 to A-8 in which the first lessees were treated as lessees of temple and found in arrears of Makta. It also relied on notices which are at Exs.A-9 to A-20, through which Makta was paid by the first lessees to the Paripalanakarta. The lower appellate Court observed that the authority of the Paripalanakartha was challenged by the petitioner-temple for leasing out the agricultural lands as also to receive Makta, but it is indicative of the fact that they were in possession of different extents of lands out of the disputed agricultural lands for a couple of years. It also found that there was no whisper in the notices that the first lessees were not actually lessees, but they were trespassers. The hereditary trustees also issued notices to the first lessees which are at Exs.A-21 to A-26 through which they were intimated that the Paripalanakartha has been removed and the power of attorney by the Paripalanakarta has been revoked and they were asked to pay Makta directly to the petitioner-temple. Holding so, the first appellate Court dismissed the appeals.
9. Feeling aggrieved by the dismissal of the appeals, as noted above, the petitioner-temple and the second lessees have challenged only that portion of the common order through which the order of the trial Court granting injunction in favour of the first lessees has been confirmed.
10. It is contended on behalf of the petitioners that by virtue of the scheme Ex.B-1, the Paripalanakartha was only authorised to help the hereditary trustees in leasing out the agricultural lands to others by public auction and in the event of differences of opinion, the opinion of the hereditary trustees shall prevail over the opinion of the Paripalanakartha. Because no lease has been given according to law, therefore, the alleged leases granted by the Paripalanakartha are null and void and actually they are no lessees in the eye of Law. The demand for arrears of Makta was made only because of user of the different extents of lands out of the agricultural lands in question by the first lessees and that by itself does not confer any right in them. Though they had obtained an order for temporary injunction in O.S. No. 12/92, but that was shortlived because it was not only vacated, but the eviction order was maintained throughout and it was found that the Civil Court had no jurisdiction to try the suit because it involved the rights between the landlord and tenant. After the date of auction, the different extents of lands out of the agricultural lands were handed over to the second lessees and they have been cultivating the same as lessees of the petitioner-temple. They have also been paying regularly yearly Makta. The respondents have not paid Makta for any year after the date of auction of leasehold rights. Because they were not in possession of the different extents of lands (for short, 'disputed lands') on the date of the petitions, no temporary injunction can be granted in their favour. Their status is that of a trespasser even, before the date of auction, that is-12-3-1992. It is also urged on behalf of the petitioners that the lower appellate Court erred in holding that the question of deciding possession was not material in this case and has failed to notice that the lease can be granted only under the provisions of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 and/or 1987 (for short, Endowments Act') and not otherwise. Both the Courts below have failed to comply the principles of law correctly and have committed a material irregularity and illegality in the passing of the impugned orders and, therefore, both the orders are liable to be reversed.
11. On the other hand, it has been contended by the learned counsel of the respondents that the petitioners have not challenged the order (common order) through which the appeals of the second lessees have been dismissed and the order of rejection of confirmation of their temporary injunction passed by the lower Court has been confirmed and, therefore, that order has attained finality with the result that this revision is not maintainable on the ground of Doctrine of Res Judicata. It is further contended on behalf of the respondents that the petitioner-temple had demanded arrears of Makta from them and has actually received the same also. Therefore, it is established that the first lessees have been recognised as lessees of the petitioner-temple and they cannot be ejected from the disputed lands otherwise than in due course of law. Unless they are validly ejected, the petitioner-temple had no right to sell the leasehold rights by public auction or otherwise. There is material on record that they were in continuous possession of the disputed lands upto the date of their ATCs and, therefore, they have got a right to protect their possession unless the ATCs are decided on merits.
12. In the case of Kandula Satyanarayana v. Sri Parvatheswaraswami Temple, Pamidimukkala, 1978 (1) An.W.R. 130 = 1977 ALT 93 (NCR), it is held that even if a person is found in cultivating possession of the Inam land of the temple on the date of the commencement of the Inams Abolition Act, is entitled to permanent occupancy rights as he is entitled to the benefit of Section 10(2) of the Andhra Tenancy Act and, therefore, he has a right to continue in possession and cannot be treated as an encroacher for the purposes of Chapter 9 of the Endowments Act of 1966 because there are no words either in Clause (d) or Clause (e) in Section 74(1) or Section 75 abrogating and nullifying by their own force the right of person in possession in their properties belonging to the institutions and endowments and there is no inconsistency between the Endowments Act of 1966 and the two Acts, that is the Andhra Pradesh Inams Abolition Act and the Andhra Pradesh Tenancy Act, 1956.
13. In the case of Samadhi Narayana v. State of Andhra Pradesh, 1990 (1) ALT 237 (D.B.), a Division Bench of this Court has declared Sub-sections (1) and (2) of Section 82 of the Endowments Act, 1987 as void being violative of Article 14 of the Constitution of India. Relying on the case of Samadhi Narayana (2 supra), it is held in the case of Sri Vyneteswara Swamyvari Temple, Ponnangi v. Kode Brahman, 1993 (1) An.W.R. 143, that the legal position is that the unamended Section 82 alone will be in force and thus the tenancy law which was applicable to the temple lands would continue to be operative. In such circumstances, the only right which the petitioner-temple has, is to file a petition in the tenancy Court and seek eviction on the ground that the tenant was in arrears of Makta. The fresh auction of leasehold rights is invalid and non est in the eye of law. In this case, the fresh auction of leasehold rights held on 6-1-1989 was declared invalid and non est in the eye of law as the petitioner was treated to be a cultivating tenant with effect from 1-6-1979.
14. In the case of Pulikandam Subba Reddy and Anr. v. Gorantal Veeraswamy and Ors., 1995 (2) An.W.R. 568 = 1995 (3) ALD 1000 (D.B.), it is held that a tenant found to be in possession of the land and lease subsisting by the time the amended Act 39 of 1974 came into force, his tenancy is protected under the amended Section 10(1) of the A.P. Tenancy Act of 1956 and the lease would be deemed to be in perpetuity and he is entitled to be in possession till such time the land is resumed by the landlord Under Section 12 or the tenant is evicted Under Section 13 of the Act. It is further held that on a combined reading of Section 109 and illustration (d) Section 114 of the Evidence Act together, the law is that the landlord relationship between the landlord and the tenant continues until it is proved to have ceased. When a person is found to be in possession as a tenant on a particular date, it must be presumed to continue unless the contrary is established by the person who contends to the contrary. Even the terms of lease like the period of lease, the rate of rent etc., should be presumed and the burden of proving contrary is on the person who affirms it. The mere non-payment of rent or failure to exercise the conduct of a tenant or dispossession is not sufficient to hold that the relationship of landlord and tenant has ceased. When two persons set up rival claims of tenancy under the same land and under the same landlord and one of them is admitted to be the previous tenant, the other person should plead and prove the relinquishment of tenancy by the previous tenant. Even the principal (sic. principle) of tenancy holding over Under Section 106 (sic. 116) of the Transfer of Property Act can be operated in such a situation.
15. From the position of law as gleaned and gathered from the aforementioned decisions of this Court, the principles are set down as under:
(1) Tenancy Act of 1956 is applicable to lands belonging to religious or charitable institutions which is a special Act made to safeguard the interests of the cultivating tenants;
(2) A tenant found to be in possession of the land and lease subsisting by the time the amending Act 39 of 74 came into force his tenancy is protected and the lease would be made in perpetuity and he is entitled to be in possession till such time the land is resumed by the landlord Under Section 12 or the tenant is evicted Under Section 13 of the Tenancy Act of 1956;
(3) Where it is proved that a land is in possession of a tenant on a particular date, it must be presumed to continue unless the contrary is established by the person who contends to the contra;
(4) The mere non-payment of rent or failure to exercise the conduct of a tenant or dispossession is not sufficient to hold that the relationship of landlord and tenant has ceased;
(5) The rival claimant should plead and prove the relinquishment of the tenancy by the previous tenant who is either admittedly a previous tenant or he proves himself to be a previous tenant; and (6) The principle of tenancy holding over Under Section 116 of the Transfer of Property Act is applicable in such case. The unamended Section 82 of the Endowment Act of 1987 being in force, the tenancy law which was applicable to the temple lands would continue to be operative.
16. Testing the facts of the case on the touch stone of the principles laid down above, I find that, through notices which are at Exs.A-1 to A-8, the first lessees were informed that they were the tenants of the disputed lands belonging to the petitioner-temple and on verification of the records of the Institution, they were found in arrears of the agreed rent due to the temple. These notices were issued in the month of October, 1992. The hereditary trustees also issued notices to the first lessees which are at Exs.A-21 to A-26. In these notices, they were informed about the removal of the Paripalanakartha and cancellation of the power of attorney given by the Paripalanakartha to one Sri K. Suryanarayana and through these notices they were asked not to pay Makta to him, but to pay the same directly to the petitioner-temple. The first lessees have also filed the receipts evidencing payment of Makta to Paripalanakartha vide documents Exs.A-9 to A-20.
17. From what is discussed above, it appears prima facie that the first lessees were in possession of the disputed lands as lessees from before the year 1974. It appears, for this reason, the lower appellate Court has observed that the finding of posseession under Para 14 of the judgment passed by the lower Court was not necessary because it was for the petitioner-temple and the second lessees to establish that the tenancy between the petitioner-temple and the first lessees had been terminated. Whether the Paripalanakartha had a right to lease out the disputed lands is a complicated question of law which may be decided during the trial of the suit. Similarly whether the aforementioned contents of the notices (were) issued by the hereditary trustees and the Board of Trustees to ratify the alleged unauthorised act of the Paripalanakartha and what would be legal effect of those notices in determining whether the first lessees were validly inducted as lessees of the petitioner-temple or not are all disputed and complicated questions of law and facts to be finally determined during the trial. It is well settled that when the parties go to the trial for the determination of complicated questions of law and disputed questions of fact it can be inferred that the petitioner has got a prima facie case. As noted above, prima facie, it appears that the first lessees were in possession of the disputed lands at least upto the date of the auction, that is 12-3-1992, particularly when the second lesseess have also claimed possession through them only and, therefore, it can be safely presumed for the limited purpose of deciding the application for temporary injunction, that they continued to be in possession of the disputed lands, even after the date of auction as the petitioners-(second) lessees have failed to establish that the petitioner-temple has resumed the disputed land or somehow had obtained the vacant possession of the disputed lands from the second (sic. first) lessees on the date of institution of ATCs by them.
18. For the foregoing reasons, there appears to be no error of law apparent on the face of the record and, therefore, no fault can be found out with the findings recorded by the lower Court, with the result that no enquiry into the alleged error of fact is needed by exercising extraordinary jurisdiction under Article 227. It is also pertinent to note that the order rejecting the application for temporary injunction of the second lessees by the trial Court, though confirmed in appeal in the common impugned judgment, has not been challenged before this Court and, therefore, the bar of Res Judicata comes into play for adjudication of this revision on merits vide the principles laid down in the case of Pala Narayana and Ors. v. Munukuntla Pullaiah (died) and Ors., 1989 (1) ALT 66.
19. Before parting, I may observe that the trial Court will expedite the hearing of both sets of ATCs by consolidating them as directed by the lower appellate Court and shall not be influenced by any observations made by this Court while disposing of these CRPs.
20. In result, all the revision petitions, being devoid of substance, are dismissed. However in the facts and circumstances of the case, I leave the parties to bear their own costs.