Andhra HC (Pre-Telangana)
Lachamma And Anr. vs Buchamma on 25 February, 1992
Equivalent citations: 1992(3)ALT385
ORDER A. Gopal Rao, J.
1. Defendants are the petitioners in this revision petition. This revision petition is filed aggrieved by the order dated 28-12-1989 passed by the Lower Court on the preliminary issue, holding that the Civil Court has got the jurisdiction to decide the suit. The suit, O.S. No. 100 of 1988 was filed in the District Munsif's Court at Mahaboobnagar by the respondent-plaintiff for perpetual injunction, restraining the petitioners-defendants from interfering with the peaceful possession of the plaintiff over the suit land ad measuring Ac. 15.27 guntas in survey No. 544/A, Polepally village of Jedcherla mandal. The case of the plaintiff is that survey No. 544 originally comprised of Ac. 19-27 guntas which was owned by the plaintiff. Father of the first defendant was the protected tenant with respect to the entire land and when he defaulted in payment of rent, plaintiff initiated proceedings before the Tahsildar against the protected tenant for recovery of rent and also for restoration of possession. The protected-tenant, retaining only Ac. 4-00 of land out of the total extent of Ac. 19-27 guntas in survey No. 544, wilfully surrendered his tenancy rights with respect to the remaining land, viz., Ac. 15-27 guntas, and delivered possession of the same to the plaintiff. Four acres of land retained by the protected-tenant was mutated in his name, and the remaining Ac. 15-27 guntas surrendered to the plaintiff, was given a separate survey number, viz., survey No. 544/A. which is now the subject-matter of dispute in this revision petition. Alleging that the defendants, without any manner of right, are interfering with the peaceful possession and enjoyment of the said land by the plaintiff, she filed the present suit, praying for perpetual injunction, restraining the defendants from interfering with her possession of the suit schedule land. The defendants contested the same, claiming that they are in possession of the said land, being the legal heirs of the protected-tenants. After appropriate issues are framed by the lower court, the defendants filed an application in I.A. No. 11/1988 in the suit under Order 14, Rule l(4)(b) of the Civil Procedure Code for framing an additional issue pertaining to the jurisdiction of the civil court to try it as a preliminary issue. The said application was allowed and the additional issue was framed on 19-7-1989, viz., "whether the civil court has jurisdiction to try the suit"? The lower court decided the issue in favour of the plaintiff, holding that the civil court has got jurisdiction to try the suit. Aggrieved by the same, the present revision petition is filed by the defendants.
2. The learned counsel for the petitioners contends that the subject-matter to be decided in the suit falls within the exclusive jurisdiction of the Tahsildar and as per Section 99 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as 'the Act'), the civil court has no jurisdiction to try the suit. The respondent-plaintiff, however, contends that the subject- matter of the suit being only with respect to grant of an injunction based on the possession of the plaintiff, the civil court alone has got the jurisdiction, and not the Tenancy Court, to try the suit.
3. The point, therefore, that falls for consideration in this revision petition is - whether the civil court has got the jurisdiction to try the suit?
4. In order to determine the forum, the allegations in the plaint have to be locked into. A reading of the plaint will disclose that the plaintiff claims that she is in exclusive possession and enjoyment of the suit schedule land, in her own right, subsequent to the surrender of the same by the erstwhile protected tenant. Incidentally, it is mentioned in the plaint that, the plaintiff has got exclusive possession with respect to the land subsequent to the surrender of the tenancy rights by the protected tenant. That, by itself, will not attract the provisions of the Act. Existence of relationship of landlord and tenant, is not a matter for decision in the suit. The only question to be decided in the suit is - whether the plaintiff is in exclusive possession and enjoyment of the suit schedule land, in her own right.
5. In Bhoi Bhooma v. Syed Hussain, 1963 (1) An.W.R. 121, it was held:
"Where the ownership of the lands in dispute is claimed both by the plaintiff and the defendants, itwould notbe within the jurisdiction of the Tahsildar to embark upon an enquiry as to who the true owner is. Such a dispute is outside the pale of Section 35 of the Tenancy Act. The Revenue Tribunals are not expected to adjudicate upon complicated questions of fact and law as to the ownership or title to property in summary enquiries like those to be held under Section 35 of the Act. Therefore, the jurisdiction of the Civil Court to entertain the suit is not barred by reason of Section 99 of the Tenancy Act."
6. In Hanmanth Reddy v. Nagamma, 1983 (1) ALT 199., it was held:
"In order to attract the bar of the jurisdiction of the Civil Court under Section 99(1) of the Hyderabad Tenancy Act, it is essential that firstly the matter should fall within the province of the said enactment and secondly, the said authority should have power to deal with or settle the matter." It was further held:
"It is well settled that where a Special Tribunal is created by an Act of Legislature for the purpose of determining the rights created by the statute and finality is given to the orders of the Tribunals, the jurisdiction of a Civil Court must be considered to be excluded with regard to those matters but where the relief sought in a suit is one which the Special Tribunal is incapable of granting the jurisdiction of the Civil Court is not ousted merely because the question which has to be incidentally decided is a question within the competence of a Special Tribunal."
7. In G. Gandaiah v. D. Mallesham, 1985 (1) ALT (NRC) 68., it was held that a suit for mere protection of possession does not come within the purview of the Act and the Rules made thereunder, and Section 99 of the Act is not a bar to the maintainability of the suit.
8. Therefore, when the question to be decided in the suit is only as to who is in possession of the suit schedule property, the dispute does not fall within the domain of the provisions of the Act and so, the jurisdiction of the civil court is not ousted.
9. The learned counsel for the respondent contends that the termination of tenancy and surrender of the rights by a protected tenant, will be a valid surrender only if such termination and the surrender are made in accordance with the provisions of Section 19 and 32(2) of the Act. This question, viz., whether there is a valid termination of tenancy and surrender of possession by the protected tenant or not, the learned counsel submits, falls within the exclusive jurisdiction of the Tenancy Court and, therefore, the Civil Court has no jurisdiction. For this proposition, he relies upon the decisions rendered in P. Anil Kumar v. Joint Collector, 1988 (2) ALT 583. Mohd. Burhan v. Shivling Rao, 1988 (2) ALT 117., M. Venkateswara Rao v. P. Venkata Raju, 1990 (1) ALT 588., and D.Subbarao v. S. Dharmakunta, .
There cannot be any dispute with respect to the proposition laid down in the above cited decisions.
10. In this case, the plaintiff claims possession of the suit schedule land by virtue of the surrender made by the erstwhile protected tenant, viz., father of the defendants. The question, whether there is a valid termination of tenancy and surrender of possession by the protected tenant in favour of the plaintiff, is not a matter for decision in the suit. The question, whether the plaintiff is in possession of the suit schedule property by virtue of the surrender, is only to be decided for grant of injunction, claimed by her. If the petitioners-defendants claim that there is no valid surrender as per the provisions of the Act, then it is for them to approach the Tenancy Court for resolving that dispute. Therefore, the decisions relied upon by the learned counsel for the petitioners are not applicable to the facts of this case.
11. It is further contended by the learned counsel for the petitioners that, regarding the question of surrender no documents in proof of surrender were filed along with the plaint and, the details of the proceedings of the Tahsildar are not mentioned in the plaint. This is factually incorrect because, in the list of documents filed along with the plaint, it can be seen that the order of the Tahsildar dated 20-5-1990 was filed by the respondent-plaintiff along with the pahanies for the years 1980-81 to 1985-86. It must also be remembered that the lower court has decided the matter as a preliminary issue and has held, only on the basis of the pleadings, that the Civil Court has got jurisdiction to try the suit.
12. Relying upon the decision rendered in P. Saraswathi v. V. Veerabhadra Rao, 1985 (1) APLJ (SN) 36., the learned counsel for the petitioners contends that in a suit for perpetual injunction, the question of ownership shall also be gone into and, in the present suit inasmuch as the landlord is claiming possession of the land by virtue of the alleged surrender made by the protected tenant, the same has to be decided by the Tenancy Court and not by the Civil Court. As mentioned already, in this suit, the Court has only to decide whether the plaintiff is in possession of the suit schedule land by virtue of the surrender made by the protected tenant and not whether the surrender itself is a valid surrender in accordance with the provisions of the Tenancy Act. Therefore, this decision is also not applicable to the facts of this case.
13. Relying upon the decision in A. Anilkutnar's case (4 supra), the learned counsel for the petitioners submits that the Tahsildar has jurisdiction to grant the relief of injunction and, therefore, this matter should also go before the Tenancy Court. In that case, the basic question was whether the Tahsildar has got power, in an enquiry under Section 32(1) of the Act, to pass an order of injunction restraining the land-holders or any person claiming through them, from interfering with the possession of the tenants. The case on hand is a simple suit for injunction, which can be filed only in a Civil Court. As stated already, no dispute pertaining to landlord and tenant, arises for determination in this suit. Therefore, this contention of the petitioners is also not tenable.
14. For all the reasons stated above, the order of the lower court, holding that the Civil Court has got jurisdiction to try the suit, is correct and does not call for interference in this revision petition. The revision petition fails and is accordingly dismissed. No costs.