Andhra HC (Pre-Telangana)
Alla Nageswara Rao (Died) By Lrs. And ... vs Kalipindi Appala Narasamma And Ors. on 30 September, 2005
Equivalent citations: 2006(2)ALD755, 2006(3)ALT152
JUDGMENT A. Gopal Reddy, J.
1. Defendants 2 to 5 and 18 to 20 in the Court below filed this appeal against the judgment and decree of the Principal Senior Civil Judge, Eluru dated 25-8-1999 in OS No. 123/95, whereunder the suit filed by the plaintiffs was decreed in favour of the 1st plaintiff declaring that she is a permanent tenant of the plaint schedule land; directing the defendants 3 to 5 and 18 to 20 to deliver possession of the same and to pay past and future mesne profits.
2. Pleadings in nut-shell are as under:
3. One Pratapa Venkata Nageswara Viswanatha Sastry was the original owner of the suit schedule property. He executed a permanent lease deed dated 7-2-1951, Ex.A-8, in favour of Mylavarapu Rama Krishna Rao for a maktha of 30 bags of paddy per year payable undertaking to pay the land revenue to the Government. The original owner-lessor Pratapa Venkata Nageswara Viswanatha Sastry sold his rights over the suit schedule property including right to collect maktha of 30 bags of paddy from the lessees in favour of Mulakala Brahmaramba and Mulakala Umamheswaramma under a registered sale deed dated 24-12-1956, Ex.A-9, for a valuable consideration of Rs. 2000/-. The lessee Mylavarapu Ramakrishna Rao transferred his permanent leasehold rights and interest over the plaint schedule property in favour of Tata Chiranjeevi Rao, Talam Venkateswara Rao, Seeram Krishna Murthy and Dalapatiraju Venkatraj under a registered transfer deed dated 26-3-1959, Ex.A-10. Out of the said four persons, Dalapatiraju Venkata Raju transferred his l/4th permanent leasehold rights and interest in favour of Madeka Appa Rao under a registered transfer deed dated 6-9-1962, Ex.A-11, and the other three persons transferred their permanent leasehold rights and interest in respect of Ac. 11-45 cents in favour of Chunduri Rama Suryanarayana Sastry and Ac. 11-00 in favour of D. Satyanarayana under two registered transfer deeds dated 29-12-1964, Exs.A-12 and A-13 respectively. Later D. Satyanarayana again transferred his leasehold rights and interest in respect of Ac. 11-00 cents in favour of Edara Subbamma under a registered transfer deed dated 1-7-1967, Ex.A-14, who in turn transferred her leasehold rights and interest in respect of Ac.5-50 cents in favour of Chunduri Suryanarayana Sastry and the remaining Ac.5-50 cents in favour of Parcha Gnaneswara Rao under two registered transfer deeds dated 2-7-1968 and 24-6-1970, Exs.A-15 and A-16 respectively. The said Patcha Gnaneswara Rao in turn transferred his leasehold rights and interest in respect of Ac.5-50 cents in favour of Pacha Subba Rao and Patcha Venkatraju under a registered transfer deed dated 23-6-1973, Ex.A-17. The legal representatives of Chunduri Rama Suryanarayana Sastry i.e., 6 to 13 transferred their permanent leasehold rights and interest in respect of Ac. 17-00 out of total extent of Ac.22-45 1/2 cents in favour of plaintiffs 1 and 2 under a registered transfer deed dated 23-6-1993, Ex.A-1, for a valuable consideration of Rs. 30,000/- and delivered possession to them. Defendants 14 and 15 being represented by their General Power of Attorney Agent Pacha Venkata Seetharama Prasad transferred their permanent leasehold rights in respect of the remaining extent of Ac.5-50 cents in favour of the plaintiffs for a valuable consideration of Rs. 10,000/- under a registered transfer deed dated 23-6-1993, Ex.A-2, and delivered possession of the same to the plaintiffs. Thus, the plaintiffs have become the transferees of the leasehold rights of the entire plaint schedule properly under the above two documents. The first defendant who is the General Power of Attorney holder of all the legal heirs of original claimants created two separate sale agreements, Exs.A-59 and Ex.A-60, in respect of half of the plaint schedule property each in favour of defendants 16 and 17 on 24-4-1993, for Rs. 2,86,300/- each reciting possession of the property was delivered. Defendants 16 and 17 stated to have given up their agreements, received back their amounts and delivered back possession to the 1st defendant. Thereafter, the first defendant as a General Power of Attorney holder executed registered sale deeds dated 24-11-1993 in favour of defendants 2 to 5 in respect of plaint schedule property reciting that possession was delivered. While so, defendants 2 to 5 have forced to dispossess the plaintiffs from the suit schedule property on 25-1-1994, stating that possession of which was acquired under various transfer deeds and sale deeds. In view of the same, the above suit came to be filed for declaration of their permanent leasehold right and interest over the plaint schedule property as per the terms and conditions of the original registered permanent lease deed dated 7-2-1951, and for consequential possession of the plaint schedule property after evicting defendants 2 to 5 therefrom and seeking a decree for Rs. 1,68,750/- towards mesne profits or damages for use and occupation with interest at 12% per annum, and for future mesne profits.
4. On the death of the second defendant, defendants 18 to 20 were brought on record as his legal representatives and plaint was accordingly amended seeking reliefs against them also as LRs of D-2.
5. The first defendant filed the written statement denying the material allegations and contending that late P.V.N.V. Sastry had every right to transfer his ownership rights over the plaint schedule property and accordingly transferred the same to Mulakala family under a registered sale deed dated 24-12-1956, Ex.A-9, stating that M. Ramakrishna Rao lessee had no right to transfer his leasehold rights in the plaint schedule property as per the terms and conditions of the lease deed dated 7-2-1951, Ex.A-8, and subsequent transfers of the leasehold rights in the plaint schedule property and acquiring rights by the plaintiffs are not binding on him. No maktha has been paid to the landlord at any point of time and lessesses by their conduct have lost their rights under the lease deed and lessesses have no right to squat on the plaint schedule property. The predecessors of the plaintiffs i.e., defendants 6 to 15 have abandoned the rights over the plaint schedule property more than a decade back, and due to filing of the suits for recovery of possession, maktha was stopped, therefore, he took possession of the same and cultivated the same for sometime. The predecessors of the plaintiffs were not in possession of the plaint schedule property at any time after 1984. Sale agreements executed in favour of defendants 16 and 17 are true and sale deeds dated 24-11-1993 executed in favour of defendants 2 to 5 are true and genuine and possession of the plaint schedule property was delivered to them under those sale deeds and Court has no jurisdiction to entertain the suit and the provisions of A.P. (Andhra Areas) Tenancy Act, 1956 (for short "the Tenancy Act") will apply to the present case and suit is liable to be dismissed.
6. The third defendant filed separate written statement stating that the original landlord P.V.N.V.S. Sastry leased out the plaint schedule property to one P.V. Sastry on 10-2-1947, who in turn leased out Ac.6-00 cents of land out of the plaint schedule property to one V, Krishnayya without the consent of the owners and said V. Krishnaiah could not bring the land under cultivation P. V.N. V. Sastry leased out the plaint schedule property to one M. Ramakrishna Rao, who also failed to bring the same under cultivation and committed default in payment of rental. Later P.V.N. V. Sastry sold away the same to Mulakala Bramaramba and Mulakala Umamaheswaramma under a registered sale deed dated 24-12-1956, Ex.A-9. Since then they have been in possession and enjoyment of the same as absolute owners. The recitals in the alleged transfer deeds dated 23-6-1993 executed by defendants 6 to 15 in favour of the plaintiffs are speculative and fictitious and the transferors of the plaintiff were never in possession and enjoyment of the plaint schedule property, who abandoned the same and the first defendant who is the representative of the heirs of Mulakala Bramaramba and Umamaheswaramma executed agreements of sale dated 24-4-1993 in favour of defendants 16 and 17 by receiving Rs. 2 lakhs as part of sale consideration and delivered possession of the same to them. They cultivated the plaint schedule property during the year 1993. Since they failed to honour the terms and conditions of the agreements of sale, defendants 16 and 17 took back the advance amount and surrendered the possession to the first defendant who in turn sold the same to defendants 2, 4 and 5. Whereas he purchased only Ac.4-24 cents out of the plaint schedule property by registered sale deed dated 24-11-1993 and took possession of the same. Since then he has been in possession and enjoyment of the same. He being a bona fide purchaser for valuable consideration, the plaintiffs having failed in their attempts to obtain any relief in OS No. 211/93 filed the present suit and the same is not maintainable and transfer of permanent lease deed dated 23-6-1993 executed in favour of the plaintiffs was not valid and binding on him and the Court has no jurisdiction to entertain the suit and the plaintiffs have to approach the Tenancy Tribunal for necessary reliefs.
7. The fourth defendant filed written statement in tune with the averments made in the written, statement filed on behalf of the third defendant.
8. The fifth defendant filed a memo adopting the written statement filed on behalf of the fourth defendant.
9. The ninth defendant filed written statement while supporting the claim of the plaintiffs stated that himself and defendants 6 to 8 and 10 to 13 who are the legal representatives of original permanent lessee Ch. Rama Suryanarayana Sastry and their execution of registered transfer deeds dated 23-6-1993 in respect of Ac.17-00 out of plaint schedule property in favour of plaintiffs 1 and 2 and delivering possession in their favour. Defendants 14 and 15 have executed registered transfer deed dated 23-6-1993 in respect of the remaining extent of plaint schedule property by delivering possession. Defendants 1 to 5 are not entitled to possession of the plaint schedule property or any portion thereof as per the permanent lease deed dated 7-2-1951 and necessary decree may be passed in favour of the plaintiffs.
10. The sixteenth defendant filed written statement denying the material allegations in the plaint and stated that after surrender of the rights over the plaint schedule property in pursuance of the sale agreements dated 244-1993 by him and the 17th defendant in favour of the first defendant, the first defendant sold the same to defendants 2 to 5 under registered sale deeds and himself and 17th defendant have no interest and claim over the plaint schedule property and they are not necessary parties to the suit and they have nothing to do with the plaint schedule property as they relinquished their rights under agreement of sale.
11. Defendants 6 to 8 and 11 to 13 have filed a memo adopting the written statement of 9th defendant. Whereas 17th defendant adopted the written statement filed on behalf of the 16th defendant.
12. Defendants 18 to 20 have filed a memo adopting the written statement filed on behalf of third defendant.
13. Defendants 10, 14 and 15 remained ex pane.
14. On these pleadings of the parties, the trial Judge, Additional Senior Civil Judge, Eluru before whom the suit was laid originally has framed the following issues for trial:
1. Whether the civil Court has got the jurisdiction to entertain the suit ?
2. Whether the plaintiffs 1 and 2 are entitled for the declaration of permanent leasehold right and interest in the schedule mentioned lands ?
3. Whether the plaintiffs are entitled to pass a decree for Rs. 1,68,750/- against the defendant Nos. l to 5 towards past mesne profits or for damages for use and occupation with interest at 12% per annum from the date of suit till realization ?
4. Whether the plaintiffs are entitled for future mesne profits as prayed for ?
5. Whether the permanent lessee by virtue of permanent lease deed dated 7-2-1951 has got right to transfer the leasehold rights in the schedule mentioned land ?
6. Whether the permanent lessor Pratapa Venkata Nageswara Viswanadha Sastry had right to transfer his ownership on the plaint schedule land under document dated 24-12-1956 to Mulakala people ?
7. Whether the defendants 6 to 15 have abandoned the plaint schedule lands about the decade prior to the date of filing the suit ?
8. Whether the sale deed dated 24-11-1993 in favour of defendant Nos. 2 to 5 are true, genuine and valid and binding on the plaintiffs ?
9. Whether the leasehold rights of a permanent lessee are transferable ?
10. Whether the document dated 23-11-1993 executed in favour of the defendants are true, valid and binding on the plaintiffs ?
11. To what relief ?
15. The said suit was transferred to the Principal Senior Civil Judge, Eluru as per orders passed by this Court in CMA No. 346/1997. On such transfer, the trial Judge deleted Issue No. 10 in exercise of power conferred under Order 14 Rule 5(2) CPC, and reasons for such deletion were given in Para 15 of the judgment.
16. In order to prove the claim of the plaintiffs, the 1st plaintiff examined herself as P.W.I; the husband of the 1st plaintiff and the ninth defendant examined themselves as P.Ws.2 and 4. Apart from them, the plaintiffs examined 7 more witnesses as P.Ws.3 and 5 to 10 and got marked Exs.A-1 to A-86. Through P.W.5 and P.W.9, Exs.X-1 to X-8, and Exs.X-9 and X-10 were marked respectively. Exs.A-1 and A-6 : A-2 and A-7; A-29 and A-49; A-33 and X-9 and Exs.A-40 and A-62 are one and the same. Defendants 1, 3, 4 and 16 have been examined as D.Ws.2 to 5 respectively and the contesting defendants have examined two witnesses as D.Ws.1 and 6 and got marked Exs.B-1 to B-24.
17. While deciding Issue Nos. 2, 5, 6, 8 and 9 together, the trial Court considered the evidence, both oral and documentary, adduced by the parties and held that the plaintiffs have purchased permanent leasehold rights only with respect to the plaint schedule property and as such the purchase made by the defendants will not come in the way for granting relief to the plaintiff and accordingly held that the first plaintiff is entitled for declaration against D-l, D-3 to D-5 and legal representatives of D-2 i.e., D-l8 to D-20 and for consequential relief of possession in respect of the suit schedule property as prayed for and accordingly answered the issues in favour of the plaintiffs. Issues 7 and 1 were answered in favour of the plaintiffs. Under Issue No. 3, ' the trial Court held that the first plaintiff is entitled to have past mesne profits for 1st crop of 1994-95 and 2nd crop of 1995. On Issue No. 4, it was held that the first plaintiff is entitled to have future mesne profits from the date of the suit till the date of delivery of the property, with interest at 12% per annum from the respective due dates, to be ascertained on a separate application and accordingly decreed the suit of the plaintiff.
18. Aggrieved by the judgment and decree passed by the learned Principal Senior Civil Judge, Eluru the present appeal has been preferred raising several grounds. The relevant grounds which govern the issue may be stated thus : The Court below having held that permanent tenancy is created under Ex.A-8 lease deed and the plaintiffs are sub-lessees by virtue of lease transfer deeds of 1993, and decreeing the suit declaring the leasehold rights only in the suit property and on the other hand inconsistently held that there is no landlord and tenant relationship between the parties, the finding that Tenancy Act has no application on Issue No. 1 is not permissible as it is inconsistent to each other. When the lease was subsisting on the date Act 39 of 1974 came into force, lease of agricultural lands is governed by the Tenancy Act but not by the Transfer of Property Act and lease which is subsisting over the agricultural land by the said date when the amendment to Section 10 of the Tenancy Act came into force is only perpetual. The subsequent purchasers of the property under tenancy as per Section 11 of the Tenancy Act will become the owners of the property and the tenant to the said land will become the tenant of the purchaser. In view of the same, the Civil Court has no jurisdiction to decree the suit for declaration and for possession. As Section 16 of the Tenancy Act provides the remedy to adjudicate such disputes, the jurisdiction of the civil Court is impliedly barred, since the provisions of the Tenancy Act are having overriding effect over other laws in view of Section 17 of the Tenancy Act.
19. Sri Mowa Chandrasekhara Rao, learned Counsel for the appellants contends that defendants 2 to 5 and 18 to 20 who are subsequent purchasers are "landlords" as defined under the Tenancy Act, which mean "the owner of the holding who is entitled to evict the cultivating tenant from the holding or part including the heirs, assigns, legal representatives of the owner or any person deriving rights through him" by virtue of registered sale deeds obtained in the year 1993. When the lease is subsisting as on the date of amending Section 10 by Act 39/74 which came into force on 1-7-1980 it shall be deemed to be in perpetuity. When it is pleaded that tenants abandoned tenancy rights, whether the said abandonment is in conformity with Section 14 of the Tenancy Act or not can be decided only by the Special Officer but not by the Civil Court. The Trial Court erred in answering Issue No. l that the civil Court will have jurisdiction to entertain the suit on the ground that the reliefs< which claimed, namely, restoration of possession and ascertainment of mesne profits cannot be decided by the Tenancy Tribunal. He further contends that Tenancy Tribunal will have power to restore possession in appropriate cases. Once the Tenancy Court feels that there is no valid abandonment of tenancy rights, and relationship of landlord and tenancy continues irrespective of dispossession, the Tenancy Court will have power to restore possession. It is the exclusive jurisdiction of the Tenancy Tribunal to decide the rights of the parties and in such an event the civil Court shall refer the matter to the Tenancy Tribunal to declare the status of the parties and only on such declaration the Court can proceed further in the matter.
20. Per contra, Sri T.S, Anand, learned Counsel appearing for the respondents-plaintiff contends that in the absence of any express ousting of Civil Court's jurisdiction under the Tenancy Act the Civil Court will have jurisdiction to entertain the suit since the Tenancy Tribunal cannot restore possession nor can ascertain the mesne profits of illegal possession of the landlords. He further contends that in Ex,A-29 it was held that tenants never abandoned tenancy rights and they are in possession of the property, it is not open for them to plead that plaintiffs' vendors abandoned their right. In the absence of any express provision, the defendant No. l who was permanent cultivating tenant can transfer leasehold rights in favour of the plaintiffs under Section 108-J of the Transfer of Property Act and therefore the tenancy is now governed by the provisions of Transfer of Property Act and Civil Court will have jurisdiction to entertain the suit.
21. Learned Counsel on either side cited numerous judgments showing that by implied exclusion of the jurisdiction of the Civil Court, it cannot entertain any suit where Special Forum is created under the Statute to resolve such disputes, and where the jurisdiction of the Civil Court is not ousted by special enactment and where there is no remedy provided under the special enactment for granting the relief and ascertainment of mesne profits etc. Civil Court can entertain the suit and grant relief.
22. Learned Counsel for the appellants placed reliance on the following judgments:
1. Veeraswamy v. Sastrulu 1969 (2) An.WR 359.
2. Sesharatnamma v. Satyanarayana 1963 (3) An.WR 32.
3. J. Veeraswami v. Sub-Collector, Narasapur 1975 (1) An.WR 337.
4. R. Raghava Rao v. Tenancy Tahsildar, Tanuku, W.G. Dist. 1976 (1) APLJ 156.
5. B. Viswanadham v. SLN Swamyvaru Temple 1981 (1) APLJ 357.
6. N. Atchyutaramaiah v. O. Gangadharam .
7. K. Kasulu v. The Commissioner, Endowments Department 1986 (2) ALT 44.
8. Kotu Pichayya v. K.S. Charyulu .
9. M. Venkateswar Rao v. P. Venkata Raju 1990 (1) ALT 588.
10. Guntur Udasl Math v. N. Venkateswara Rao 1974(1) APLJ 103.
23. This Court in Veeraswamy v. U. Papanna Sastrulu (supra), held that landlords within the meaning of the Act must possess the right to determine a tenancy on the expiration of the period of lease and landlord who has granted a permanent lease does not possess such a right even if he has reserved to himself the right to determine the tenancy for default of payment of rent, therefore, Andhra Tenancy Act does not apply to cases where tenants possess permanent tenancy rights even though the landlord possess a limited right to evict.
24. A Division Bench of this Court in Sesharatnamma's case (supra) considered the question whether a permanent lessor fulfils the definition of a landlord within the connotation of Section 2(f) of the Andhra Tenancy Act and held that the permanent lessor does not satisfy the requirements of Section 2(f) of the Andhra Tenancy Act, therefore he cannot avail the provisions of Section 13 as the same will confers certain rights on persons who are landlords falling within the ambit of the Act but Section 13 does not create a new type of landlords, therefore, the appellant cannot invoke Section 13 of the Act for evicting tenants of permanent lessors.
25. In J. Veeraswamy's case (supra), it was held that Tenancy Tahsildar has jurisdiction to determine any dispute arising under the Act between a landlord and a cultivating tenant including to determine the collateral facts, which serve as the foundation for the exercise of that jurisdiction.
26. A Division Bench of this Court in the case of Raghava Rao (supra) held that Tenancy Tahsildar is competent to entertain an application filed by a tenant for the protection of his rights under the Act and to give appropriate relief by way of injunction.
27. In B. Viswanadham's case (supra) this Court held that civil suit for a declaration that the plaintiffs are tenants and for an injunction against the defendant/landlord not maintainable and proper forum is the Revenue Court under the Act.
28. In the case of Atchyutaramaiah (supra) it was held that where a statute provides a Special Forum for the enforcement of the rights created under the statute or for settlement of disputes, the jurisdiction of the Civil Court to deal with such complaints is barred.
29. A Division Bench of this Court in Kotu Pichayya's case (supra), held that whatever disputes that may properly arise under the provisions of the Act between the landlord and a cultivating tenant cannot be brought for decision before any other Tribunal or Court but only before the Tahsildar, and there is a clear embargo on the jurisdiction of the civil Courts to decide such matters as are within the provisions of the Act. The civil Court's jurisdiction is ousted and it cannot take cognizance and decide such dispute.
30. In M Venkateswar Rao's case (supra), this Court held relinquishment of land by tenant under a document but surrender without final order of Special Officer under Section 14, the relationship of landlord and tenant continues to subsist and the tenant gets a right to file a petition for recovery of possession and the application filed by the tenant before the Tenancy Court for recovery of possession on the ground that there is no valid surrender and he is entitled to get back the possession of the land is maintainable and it is for the Tenancy Court to consider whether there is valid surrender or not and also grant relief for recovery of possession in the event it comes to the conclusion that the procedure as contemplated by the Act is not followed.
31. Another Division Bench of this Court in Gutur Udasi Math (supra) while confirming the order of the Sub-Court set aside the judgment and decree of the trial Court on four points including that Civil Court will not have jurisdiction to entertain the suit of that nature. The Division Bench while affirming the judgment of the Sub-Court on second point held that once the legal representatives of the cultivating tenants came on record and expressed their intention to claim the benefits, they are entitled to claim the benefits under Section 10 of the Act. After taking note of the words "custom, usage, agreement or decree or order of Court" the learned Judges, disagree with the finding of the learned Single Judge. The words pre-existing clearly govern only the 'law' which immediately follows those words under Section 17. Thus whether the agreement is prior to the Act or subsequent thereto cannot override the provisions of the Act. On the other hand, Section 17 clearly enacts that the provisions of the Act shall override any such agreement and the section puts an embargo upon the landlord that he shall not be in a position to terminate the tenancy and evict his cultivating tenant, unless he brings his case under the one or the other provisions of that section.
32. Learned Counsel for the appellants cited some more judgments on similar point.
1. Babu Parasu Kakadi v. Babu .
2. Dhondiram Tatoba Kadam v. Ramachandra Balwantrao Dubai .
4. Abdul Ajij Shaikh Jumma v. Dashrath Indas Nhavi AIR 1987 SC 1626.
5. Mohd. Burhan v. Shivling Rao 1988(2) ALT 117.
6. P. Anil Kumar v. Joint Collector 1988 (2) ALT 583.
33. The judgments in B. Viswanadham v. SLN Swamyvaru Temple and N. Atchyutaramaiah v. O. Gangadharam (supra) arise out of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950, wherein Section 99 clearly bars the jurisdiction of the civil Court to deal with any question dealt with by the authorities under the A.P. (Telangana Area) Tenancy and Agricultural Land Act, 1950. Similarly, the reliance placed by the learned Counsel in Babu Parasu Kaikadi and Dhondiram Tatoba Kadam (supra) arise under Bombay Tenancy and Agricultural Lands Act, 1948. Therefore, they do not require any explanation.
34. Now I shall briefly refer the judgments on which reliance is placed by the learned Counsel for the respondents/ plaintiffs.
35. A Division Bench of this Court in Sesharatnamma v. Satyanarayana 1963 (2) An.WR 32, considered the definition of the word 'landlord', where the landlord granted a permanent lease and subsequently tenant transferred his leasehold rights to a third party in the demised land. On committing default in payment of rent, the landlord invoked Section 13 of the Act for eviction of the tenants before the Tahsildar, who ordered eviction. On appeal the said order was set aside by the Revenue Divisional Officer and when the same was challenged in writ petition under Article 226 of the Constitution, a learned Single Judge of this Court dismissed the same holding that permanent lessor/ landlord will not come within the mischief of Section 2(f) of the Act. On appeal Division Bench held that since the landlord do not satisfy the requirements of Section 2(f) of the Andhra Tenancy Act, she cannot avail herself of the provisions of Section 13 of the Act and accordingly dismissed the appeal.
36. Similarly in Daleppa v. Ramulu 1964 (1) An.WR. 52, the landlord took possession of the property on expiry of one-year lease period and during the said lease period the Andhra Cultivating Tenants Protection Ordinance was promulgated which was replaced by the Act. The tenant's application for restoration of land was dismissed by the Tahsildar. In appeal the R.D.O. took a contrary view and directed restoration of the land to the tenant. On revision this Court held that Tahsildar was not competent to entertain the application and rightly rejected the application, since on the date of application the tenant is not cultivating the land and Section 16 is unconcerned with a dispute between the landlord and a person who was a cultivating tenant once upon a time and it has no application to persons who are no longer cultivating tenants on the date of application, which had come to an end more than a month the application filed by him and accordingly Tahsildar rightly rejected the application who is not competent to entertain the application of the tenant and set aside the order passed by the R.D.O., ordering restoration of land to the tenant.
37. S. Venkatramaiah v. K. Venkataswamy , is a case arises under Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 but not under the Tenancy Act, which was decided by the Full Bench, wherein Justice O. Chinnappa Reddy speaking for the Full Bench held that the forum has to be determined by the plaint. If the allegations in the plaint and the reliefs sought do not bring the action within the jurisdiction of the Special Tribunal there is no reason to exclude the Civil Court from trying the action merely because the defence put forward involves the adjudication of matters within the competence of the Special Tribunal. Further, the Full Bench held that a suit for relief which the Settlement Officer cannot grant is not barred merely because it incidentally involves the adjudication of questions within the competence of the Settlement Officer and the Estates Abolition Tribunal. However, the relief claimed in the suit is a mere camouflage for obtaining a determination of the rights which are required to be decided by the Settlement Officer and the Estates Abolition Tribunal the suit must be held to be barred.
38. Another Full Bench judgment of this Court in Employees Association v. Sri Chenna Keshva Swamy Temple , is under the A.P. Charitable and Hindu Religious Institutions and Endowments Act, which is not relevant in deciding the issue involved in the present case. Hence no purpose will be served in taking the same.
39. This Court Ashifaquddin v. Mohd. Azizuddin and the Supreme Court in Ramesh Chand Ardawatiya v. Anil Panjwani , considered Section 9 CPC with regard to exclusion of jurisdiction whether total or implied and held that jurisdiction of the Civil Court is not barred either expressly or impliedly where Special Tribunal conferred with jurisdiction or exclusive jurisdiction to try particular class of cases even then the Civil Court can entertain a civil suit on availability of a few grounds, which Special Forum cannot decide the said issues. There is no quarrel with the said proposition as laid down in the said cases.
40. In the case of Sesharatnamma (supra), on which much reliance was placed by the learned Counsel for the respondents/ plaintiffs, this Court held that Tahsildar will not have jurisdiction to entertain the application filed either by tenant or landlord on the premise that landlord is not entitled to evict the cultivating tenant from such holding or part where landlord granted permanent lease, and includes the heirs, assignees, legal representatives of such owner, or person deriving rights through him. Whereas in the case of Daleppa (supra), this Court held that as the tenant was not in possession on the date of the application, the Tahsildar will not have jurisdiction to order for restoration of possession. Both the cases will not helpful to the case of the plaintiffs.
41. In view of the submissions made, the only point that emerges for consideration in this appeal is, whether the civil Court will have jurisdiction to declare the status of the plaintiffs as permanent tenants and can grant consequential reliefs ?
42. In order to resolve the controversy, it is necessary to refer to the object and scheme and provisions of the A.P. (Andhra Area) Tenancy Act, 1956. The preamble to the Tenancy Act states that it is an Act to provide for the payment of fair rent by cultivating tenants and for fixing minimum period of agricultural leases in the State of Andhra. "Cultivating tenant" is defined by Section 2(c) of the Tenancy Act, 1956 as meaning a person who cultivates by his own labour or by that of any other member of his family or by hired labour under his supervision and control, any land belonging to another under a tenancy agreement. Preamble of the Act has been deleted by Act No. 39/1974 while amending Section 10, which came into force with effect from 1-7-1980.
Section 10 prior to the amendment reads as under :
10. Minimum period of lease.-(1) The minimum period of every lease entered into between a landlord and his cultivating tenant on or after the commencement of this Act shall be six years. Every such lease shall be in writing and shall specify the holding, its extent and the rent payable therefore, which such other particulars, as may be prescribed. The stamp and registration charges for every such lease shall be borne by the landlord and the cultivating tenant in equal shares.
(2) Notwithstanding anything in Sub-section (1) all tenancies subsisting at the commencement of this Act and all leases entered into after such commencement, shall continue to be in force till the expiration of the periods of the said tenancies and leases for until the Legislature of the State by law otherwise provides, whichever is later, on the same terms and conditions as before, but subject to the determination of fair rent in case of dispute in respect of any tenancy subsisting at the commencement of this Act;
(3) After such termination, the landlord may resume the land from the cultivating tenant without any notice, and if the tenant does not surrender possession, the landlord may by an application before the Tahsildar obtain an order for delivery of possession in the prescribed manner.
43. The above amendment was necessitated in view of the recommendations of the Consultative Committee for the Revenue Department providing that all leases should be for a minimum period of six years and should be automatically renewable successively for further minimum periods of six years except where the landlord wishes to resume his land for personal cultivation; that cultivating tenant should have a right of first preference in the purchase of the land under his tenancy if the landlord wishes to sell it, and that a person should be prohibited from taking in future, lands on lease, if in consequence thereof and the total extent of the land held by him, either as an owner or as a cultivating tenant or as both exceeds two "family holdings" as defined in the Andhra Pradesh Ceiling on Agriculture Holding Act, 1961.
44. "Personal cultivation" has been amended under Section 2(gg) but there is no amendment to "cultivating tenant". "Personal Cultivation" as inserted as per Section 3 of Act No. 39/1974 defined as under :
personal cultivation" means cultivation of land by a person on his own account-
(i) by his own labour or by the labour of any member of his family; or
(ii) by servants on wages payable in cash or in kind or both but not in crop-share, or hired labour, under his personal supervision or under the personal supervision of any member of his family;
and the expression "cultivate personally" shall be construed accordingly.
45. Section 10 of the Tenancy Act after amendment reads as under :
10. Rights of Cultivating Tenants :-(1) Every lease subsisting at the commencement of the Andhra Pradesh (Andhra Area) Tenancy (Amendment) Act, 1974, shall be deemed to be in perpetuity.
(2) Every lease entered into between a landlord and his cultivating tenant on or after the commencement of the Andhra Pradesh (Andhra Area) Tenancy (Amendment) Act, 1974 shall be for a minimum period of six years. Every such lease shall be in writing and shall specify the holding its extent and the rent payable therefore with such other particulars as, may be prescribed. The stamp and registration charges for every such lease shall be borne by landlord and the cultivating tenant in equal shares.
(3) On the expiration of the period of lease referred to in Sub-section (2) every such lease shall be renewable successively for a further minimum period of six years at a time. Every such renewal shall be governed by the same terms and conditions as under the original lease and be subject to the provisions of Sections 3 and 6.
(4) Notwithstanding anything in any law for the time being in force, or any custom, decree or contract to the contrary, it shall be lawful for a cultivating tenant to mortgage, or create a charge on, his interest in the land in favour of the Government, a Co-operative Society including a Land Mortgage Bank, or any other institutions, in consideration of a loan advanced to him by the Government, Co-operative Society or Institutions, as the case may be, under the relevant law relating to the grant of loans to agriculturists for the time being in force in the State and without prejudice to any other remedy open to Government, Co-operative Society or Institutions, in the event of the cultivating tenant making a default in payment of such loan in accordance with the terms on which it was advanced, it shall be lawful for the Government, Co-operative Society or Institutions, as the case may be, to cause his interest in the land to be sold, and the proceeds thereof to be applied in payment of such loan.
(5) All the rights of a cultivating tenant under this section shall, subject to the provisions of Sections 12 and 13, be heritable.
Explanation I :-For the purpose of construing the term "heritable" in this section, the following persons only shall be deemed to be heirs of a cultivating tenant, namely :-
(a) his legitimate lineal descendants by blood or adoption;
(b) in the absence of any such descendants, his window for so long as she does not re-marry:
Provided that where there is more than one heir, the heirs shall be entitled to subdivide the interest in the holding according to their shares.
Explanation II:-If a cultivating tenant dies without leaving by her as aforesaid, all his rights shall be extinguished.
46. Permanent tenancy has not been defined under the Act. By amending Section 10 of the Act (Act 39/1974), which came into force from 1-7-1980 will have a material bearing in resolving the controversy. In the Statement of Objects and Reasons it is clearly mentioned that all leases should be for a minimum period of six years and should be automatically renewable successively for further minimum period of six years except where the landlord wishes to resume his land for personnal cultivation and confer such rights on the tenant to purchase of the land under his tenancy if the landlord wishes to sell it, and prohibiting the tenant from taking in future, lands on lease, if in consequent thereof, the total extent of the land held by him, either as an owner or as a cultivating tenant or as both exceeds two "family holdings" as defined in the Andhra Pradesh Ceiling on Agricultural Holding Act, 1961. The Bill also provides that in the event of a change in the ownership of the land, during the currency of a lease, the tenant shall be entitled to continue the tenancy on the same terms and conditions for the unexpired portion of the lease, and that, if a cultivating tenant dies, his widow and his lineal heirs shall have the option to continue the tenancy for the unexpired portion of the lease on the same terms and conditions on which the deceased tenant was holding. Provision is also made for; the termination of the tenancy arid eviction of tenants during the currency of a lease in cases where, among others, the tenant has failed to pay the rent due, or has misused the land. By amending Section 10 through Act 39/1974 the Legislature made every lease subsisting on the commencement of Andhra Pradesh (Andhra Area) Tenancy (Amendment) Act, 1974, which came into force from 1-7-1980, shall be deemed to be in perpetuity. Sub-section (4) authorizes the tenant to mortgage, or create a charge on, his interest in the land in favour of the Government, a Co-operative Society including a Land Mortgage Bank, or any other institutions, in consideration of a loan advanced to him by the Government, Co-operative Society or Institutions, as the case may be, under the relevant law relating to the grant of loans to agriculturists for the time being in force in the State and without prejudice to any other remedy open to the Government, Cooperative Society or Institutions, in the event of the cultivating tenant making a default in payment of such loan in accordance with the terms on which it was advanced, it shall be lawful for the Government, Co-operative Society or Institutions, as the case may be, to cause his interest in the land to be sold, and the proceeds thereof to be applied in payment of such loan. Sub-section (5) of Section 10 says all rights of a cultivating tenant under this section shall, subject to the provisions of Sections 12 and 13, be heritable. In other words, landlord can resume the possession of the land for his personnal cultivation under Section 12 and also termination of tenancy under Section 13 by making an application when the tenant failed to pay the rent due by him within the period of one month from the date stipulated in the lease deed, or in the absence of such stipulation, within one month from the date on which the rent is due according to the usage of the locality, or has done any act or has been guilty of any neglect, which is destructive of, or permanently injurious to the land; or has sublet the land; or has violated any of the conditions of the tenancy regarding the uses of which the land may be put; or has wilfully denied the landlord's title to the land; or has failed to comply with any order passed or direction issued by the Special Officer or the District Judge under the Tenancy Act. The term 'heritable' used in Sub-section (5) of Section 10 means only legitimate lineal descendants by blood or adoption, in the absence of any such descendants, his widow for so long as he does not re-marry. If a cultivating tenant .dies without leaving by her as aforesaid, all his rights shall be extinguished. No other mode is provided to succeed the tenancy rights except by inheritance as referred in clauses (a) & (b) of Explanation I of Sub-section (5) of Section 10 of the Tenancy Act. The embargo placed by the judicial pronouncements that the landlord will not have any right to evict tenant in case of a permanent tenancy, has now been obliterated on coming into force of the amended Act 39/1974. In view of the same, all the judgments cited by the learned Counsel for the respondents/plaintiffs on the said aspect will not be helpful to their claim, hence need no elaboration.
47. It is not in dispute that the respondents/plaintiffs are not the tenants holding the property when the Act 39/1974 came into force to claim perpetual tenancy. Admittedly, they have purchased the tenancy rights from the transferee of the original tenants under Ex.B3 sale deed. If that be the case, whether they are cultivating tenants and entitled to inheritance by way of transfer under the Act shall have to be exclusively determined by the Tahsildar who conferred jurisdiction to decide such rights of the parties.
48. Learned Counsel for the respondents/plaintiffs vehemently argued that the plaintiffs who have purchased the perpetual tenancy rights of the tenant cannot be dispossessed in view of finding under Ex.A29 that plaintiffs' vendors' vendors are in possession of the property. In the absence of any surrender of the tenancy as set out under Section 14 of the Tenancy Act landlord/defendants cannot take possession of the land evicting the tenants and the same has to be decided by the Civil Court. In view of the same, Civil Court will have jurisdiction to entertain the suit on determination. The reliefs claimed in the suit acquire importance here, which read as under:
(1) For a declaration of the permanent leasehold right and interest of plaintiffs 1 and 2 in respect of the plaint schedule land as per the terms and conditions of the original registered permanent lease deed dated 7-2-1951 and for consequential possession of the plaint schedule property after evicting defendants 2 to 5 therefrom; and from the respective extents in their possession as per the registered sale deeds dated 24-11-1993 mentioned in Para 10 of the plaint;
(2) To pass a decree for Rs. 1,68,750/- against defendants 1 to 5 towards past mesne profits or for damages for use and occupation with interest thereon at 12% per annum from the date of suit till realization;
(3) For future mesne profits to be determined under separate application and for payment of the same with interest thereof at 12% per annum from the respective due dates till realization;
(4) To appoint a Receiver to take possession of the plaint schedule land with the paddy crop thereon and manage the same pending disposal of the suit.
(5) For costs of the suit and (6) for such other reliefs as may be deemed just and necessary in the circumstances of the case.
49. The relevant principle culled out from the Full Bench judgment of this Court in S. Venkataramaiah (supra) is that once the defendant shows the allegations in the plaint are a mere camouflage to circumvent the jurisdiction of the Special Tribunal, and the plaint is but a trick to invoke the jurisdiction of the Civil Court and oust the jurisdiction of the Special Tribunal the Civil Court will naturally dismiss the suit.
50. In the present case, the averments made in the plaint as well as relief claimed clearly disclose that the plaintiffs claiming perpetual tenancy rights which they purchased under the transfer deeds and seek declaration that they will have permanent leasehold rights and interest over the plaint schedule land and recovery of the same from successors-in-interest of landlords. Once the Act does not recognize the transfer of permanent tenancy rights possessed by any tenant and only such rights are heritable to the legitimate lineal descendants, whether plaintiffs, who are third parties, can be declared as tenants and can have any tenancy rights over the suit schedule property is a matter which has to be decided by the Tenancy Tribunal. Once the first plaintiff asserts that she is a cultivating tenant acquires right of permanent tenancy under transfer and seeks a declaration to the said effect, such declaration if any granted only by the Special Tribunal but not by the Civil Court. In the absence of any rights recognized under the Statute the Civil Court will not have any jurisdiction to declare the status of such transferee as cultivating tenant and can grant consequential reliefs. Had the plaintiffs filed suit under Section 6 of the Specific Relief Act for recovery of possession which was with them, if any, certainly the civil Court will have jurisdiction to order for restoration of possession and for consequential reliefs but not otherwise.
51. Turning next to the impugned judgment and declaration made by the trial Court, this Court finds that the judgment flies of at a tangent. The reasons which seem to have impelled the trial Court to decree the suit are, (1) tenants will have a right to transfer their leasehold rights (2) in a permanent tenancy landlord will not satisfy the requirement of Section 2(f) of the Tenancy Act for tenant availing the remedies under the Tenancy Act; and (3) there is no valid surrender of the tenancy rights to the landlord and the possession of the landlord is illegal, hence the civil Court will have jurisdiction to entertain the suit. In my view the trial Court erred in coming to the said conclusion that the civil Court will have jurisdiction on the aforesaid three grounds : In the first ground, the Tenancy Act does not recognize transfer of leasehold rights except inheritance by lineal descendants, as aforesaid. What rights will be available to such transfer under the Tenancy Act falls within the exclusive jurisdiction of the Tenancy Tribunal but cannot be decided by the Civil Court. Second ground on which, the trial Court granted the relief also is a fallacy for the reason that in view of the amendment to Section 10, the landlord will have right for resumption under Section 12 of the Tenancy Act for his personal cultivation and can evict cultivating tenant by an application made to the Special Officer on any ground mentioned under Section 13. The third ground on which the trial Court assumed jurisdiction, namely, whether taking possession of the land by the landlord is in compliance with Section 14 of the Tenancy Act or not is a matter which has to be decided by the Tenancy Tribunal on establishing of the right of the first plaintiff to continue in possession as a tenant.
52. For the conclusions drawn as above, it is held that the trial Court fell in error in granting declaration, which can be granted only by the Tenancy Tribunal. The other reliefs claimed, namely, recovery of possession and for mesne profits, are mere camouflage to circumvent the jurisdiction of the Special Tribunal and plaint is but a trick invoke the jurisdiction of the civil Court and oust the jurisdiction of the Special Tribunal, the Civil Court should have dismissed the suit directing the parties first to get appropriate declaration from the Tenancy Tribunal.
53. In the result, the appeal is allowed and the impugned judgment and decree is set-aside. Consequently, the suit of the plaintiffs is dismissed. The parties are at liberty to workout the remedies available to them before the appropriate forum. No costs.