Andhra HC (Pre-Telangana)
Adapala Subbaiah vs Shaik Hasan Saheb on 31 October, 2006
Equivalent citations: 2007(4)ALD196, 2007(4)ALT541
JUDGMENT C.Y. Somayajulu, J.
1. Appellant filed the suit against respondent for recovery of value of 14 bags of paddy, alleging that the respondent, during the year 1980-81, took his land of an extent of Acs.2-00 cents in S.No.305/B of Mukteswaram village, on lease agreeing to pay the rent at 14 bags of paddy per year and failed to pay the same and vacated the land during the next agricultural year i.e. 1981-82. The case of the respondent is that he did not take the land of appellant on lease and that the suit filed only as a counter blast to the suit filed by him for recovery of a debt due under promissory note from the appellant.
2. In support of his case, the appellant, besides examining himself as P.W.1, examined five other witnesses as P.Ws.2 to 6 and marked Exs.A.1 to A.3. In support of his case the respondent, besides examining himself as D.W.1, examined two other witnesses as D.Ws.2 and 3 and marked Ex.B.1. The trial Court found favour with the case of the appellant and passed a decree in his favour. The appeal filed by the respondent was allowed by the judgment under appeal. Hence, this second appeal by the appellant.
3. When the Second Appeal came up for admission, a learned Judge admitted the appeal on the following substantial question of law.
Whether the learned appellate Judge is justified in discarding the evidence of the witnesses of the plaintiff wholly on the ground that those witnesses belong to the same caste to which the plaintiff belongs?.
4. Since the Second Appeal arises out of a reversing judgment, this Court can re-appraise the evidence and find out whether the first appellate Court was justified in reversing the findings of the trial Court.
5. The contention of the learned Counsel for appellant is that the first appellate Court was in error in reversing the findings given by the trial Court without giving any reasons merely on the ground that the evidence adduced by the appellant is interested and some of the witnesses examined by the appellant belongs to his caste. Relying on S.V.R. Mudaliar v. Rajababu F. Buhari he contended that the appellate Court, before reversing a finding of fact of the trial Court, has to bear in mind the reasons given by the trial Court, and since the appellate Court reversed the finding of the trial Court without any valid reasons, the judgment under appeal is unsustainable. The contention of the learned Counsel for respondent is that since the first appellate Court gave cogent reasons for its conclusion that the appellant failed to establish the lease, it cannot be said that the first appellate Court dismissed the suit merely on the ground that all the witnesses examined by appellant belong to his caste.
6. Since the case of the appellant is that he gave Acs.2-00 cents of his land to the respondent on lease for a period of one year i.e. 1980-81 and since that fact is denied by respondent, the burden to establish that respondent cultivated his land on lease is on the appellant. Since the suit land, admittedly, is situated in Andhra Area, and is an agricultural land, it is governed by the provisions of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (the Act). As per Section 4 of the Act, every landlord and his cultivating tenant shall come to an agreement in regard to the form of tenancy, in particular as to whether the rent shall be paid in the form of a share in the produce or in the form of a fixed rent in kind, or in the form of a fixed rent in cash and that such agreement shall not be liable to be altered during the currency of the lease except by mutual agreement of the parties. By virtue of Section 5 of the amending Act No. 39 of 1974, the sentence 'during the currency of the lease' is omitted with effect from 01-07-1980. As per the amendment to Section 10 of the Act, every lease subsisting at the commencement of Andhra Pradesh (Andhra Area) Tenancy (Amendment) Act, 1974 shall be deemed to be in perpetuity. As per Section 13 of the Act, notwithstanding anything contained in Sections 10, 11 and 12, a landlord cannot terminate the tenancy and evict his cultivating tenant except by an application made in that behalf to the Special Officer on the grounds mentioned in that section and if the cultivating tenant intends to surrender his tenancy the procedure prescribed by Section 14 of the Act has to be followed. As per that Section 14, surrender of holding by a tenant can only be at the end of any agricultural year, after giving his landlord and the Special Officer at least three months' notice expiring with the end of such agricultural year. 'Agricultural year' is defined in Section 2(a) of the Act as the year commencing on the 1st day of June or such other date as may be notified by the Government in the Andhra Pradesh Gazette in respect of any locality having regard to the usage or custom of the locality in respect of the commencement of agricultural operations therein. If the respondent really had cultivated the land of appellant and had vacated the same in 1981-82, in view of Section 14 of the Act, he should have given a notice in March 1981 both to the appellant and the Special Officer intimating them about his intention to vacate the land. It is not even the case of appellant that any such notice was given by the respondent. When the tenancy Act confers special rights including the right to purchase the land is given to the tenant, no ordinary prudent tenant would vacate the land that too without following the procedure prescribed in the Act. Therefore, the contention of the appellant that the respondent took the land on lease for only one year and vacated it at the end of the year is difficult to be believed.
7. As rightly observed by the appellate Court, the date or month in which the respondent entered into possession of the land and the date and month in which the respondent vacated the land is not mentioned by the appellant either in the plaint or in his evidence. The appellant gave boundaries of the land allegedly taken on lease by the respondent in the plaint. The land allegedly taken on lease is bounded East by Lands of Aravapalli Ramachandraiah and others; South by Chennuri Narasaiah; West by Chireboyina Chalamaiah; and North by Bailadugu China Gurappa. The appellant did not examine any one of the neighbouring land owners to show that the respondent cultivated his land during 1980-81, but chose to examine the persons who are said to be cultivating the lands beyond the lands of his neighbours. The reasons for the appellant not examining the immediate neighbours of the land said to have been taken on lease by the respondent are not explained. The neighbouring landlords are the best persons to say as to who actually cultivated the land.
8. Merely because the name of P.W.2 is mentioned in the plaint as a person who was present at the time of granting the lease the evidence of P.W.2 does not become sacrosanct. When a person wants to rope in the other, he naturally chooses his friends who support him and name them in the plaint.
9. That the respondent filed a suit against the appellant in O.S.No.505 of 1981 on the file of the Court of the District Munsif, Addanki, is admitted by the appellant in para-6 of his plaint. The specific case of the respondent is that the appellant filed this suit as a counter blast to the suit filed by him. In fact, in the written statement filed by the respondent, he clearly alleged that the appellant who got issued a registered notice dated 19.08.1981 admitting the borrowal and execution of the promissory note in his favour and discharged the same as narrated by him therein, and took a false plea stating that he never borrowed any amount from him and that the promissory note on which he filed the suit is a forged document. The trial Court, on the ground that the names of the persons mentioned in Ex.B.1 copy of the adangal are said to have died, disbelieved Ex.B.1. What is stated in Ex.B.1 is Pallepothula Pentaiah, Adapala Ramaswamy, Subbaiah are the pattadars and Pallepothula Gangaiah, Kurmala Anjaneyulu and Adapala Subbaiah are the enjoyers of the land in 305/B to an extent of Acs.7-57cents. Adapala Subbaiah is the appellant. Pallepothula Gangaiah and Kurmala Anjaneyulu are shown as other enjoyers of the remaining land in 305/B. Ex.A.1 shows that the appellant filed a copy application for the death certificate of Pallepothula Pentaiah who is said to have died in between 1959-66. The said application was returned on the ground that the Register for the year 1959-66 is not available. Ex.A.2 is the returned copy application for the death certificate of Adapala Ramaswamy who is said to have died on 11-02- 1980. That was returned on the ground that the Register for 1980 is not available. As stated earlier, Pallepothula Pentaiah and Adapala Ramaswamy are shown as the pattedars or owners of the land in S.No.305/B. They are not shown as the persons in actual enjoyment of the land during 1390 fasli equivalent to 1980-81. The enjoyers are shown as Pallepothula Gangaiah, Kurmala Anjaneyulu and Adapala Subbaiah (appellant). It is not the case of appellant that Pallepothula Gangaiah and Kurmala Anjaneyulu are not alive.
10. The appellant who recalled himself for filing Exs.A.1 to A.3, after the respondent closed his evidence after examining D.W.3, did not think it fit to examine either Pallepothula Gangaiah or Kurmala Anjaneyulu as witnesses to swear to the fact that it is the respondent that actually cultivated the land during 1980-81. Pallepothula Gangaiah and Kurmala Anjaneyulu who are shown to have cultivated the land in S.No.305/B during 1390 fasli are the best persons to speak as to who actually cultivated the land during 1980-81. The appellant who availed the opportunity to adduce additional evidence after the respondent closed his evidence did not explain the reasons for not adducing the evidence of those witnesses.
11. Ex.A.2 is produced by the appellant probably to show that Ramaswamy died in or about February, 1980. As stated earlier, Ex.B.1 does not disclose that it is Ramaswamy that cultivated the land in S.No.305/B during 1980-81. So, Ex.A.2 is not of any relevance.
12. Ex.A.3 is the notice issued to the appellant and his sons seeking delivery of the lands mentioned therein to Nagandla Hanumantharao son of Narasaiah and Nagandla Subbamma alias Subbulu w/o Narasaiah. It is dated 13-11-1984 i.e. two years after filing of the suit. Since this is a document that came into existence subsequent to the filing of the suit, no relevance can be placed thereon. The date of death of Ramaswamy is of no consequence in this case.
13. The trial Court, without carefully going through the entries in Ex.B.1, under the assumption that Ex.B.1 shows the deceased persons as cultivators of the land, disbelieved Ex.B.1. As stated earlier, the Ex.B.1 shows that Pallepothula Gangaiah, Kurmala Anjaneyulu and Adapala Subbaiah are the cultivators.
14. It is well known that the documentary evidence prevails over oral evidence. So, in the teeth of Ex.B1, the oral evidence of witnesses P.Ws.2 to 6 that the respondent cultivated the land during 1980-81 cannot be believed or accepted.
15. I am unable to agree with the contention of the learned Counsel for the appellant that the first appellate Court reversed the finding of the trial Court only on the ground that the witnesses examined by him belonging to the same caste. In fact, the first appellate Court considered the evidence adduced by the parties in detail and came to a conclusion that the appellant failed to establish his case. It is no doubt true that the first appellate Court failed to frame a point for consideration but that does not per se a point for consideration in the second appeal. Since the reasoning and the conclusion arrived at by the first appellate Court are on correct lines, I find no merits in the second appeal.
16. Hence, the second appeal is dismissed with costs.