Andhra HC (Pre-Telangana)
Sree Mukhya Pranaswami By His Trustee ... vs T.U. Raghavendra Rao And Ors. on 3 September, 1996
Equivalent citations: 1996(3)ALT1112
Author: R. Bayapu Reddy
Bench: R. Bayapu Reddy
JUDGMENT R. Bayapu Reddy, J.
1. This appeal is filed by the plaintiff in O.S.No. 155 of 1978 on the file of the Subordinate Judge, Guntur (originally O.S.No. 725 of 1972 on the file of the District Munsif Court, Guntur), questioning the decree and Judgment of the lower Court dated 5-3-1983 by which the suit filed by the plaintiff was dismissed in view of the findings on issues 1 & 8 framed in that suit.
2. The appellant who is the plaintiff, is Sri Mukhya Pranaswami in the Uttaradi Mutt Building at Vijayawada by his trustee Sri Satya Pramoda Theerdha Swamuluvaru, represented by his power of attorney Agent M.V. Ramanacharya. He originally filed the suit against the defendants 1 to6seeking the relief of permanent injunction contending that the plaint schedule land which is of a total extent of Ac. 22-47 Cents originally belonged to one Cuddapah Raghnvendra Rao and one Srinivasa Rao, who made a gift of the said land to the plaintiff by executing a registered gift deed dated 14-1-1882 and the said gift was accepted on behalf of the plaintiff by the then Archaka of the plaintiff-Mutt. Ever since then, the plaintiff was in possession and enjoyment of the said land through its tenants and the income from the said property was being used for performing 'Akhanda Deeparadhana' and other ceremonies for the Deity. In the year 1922 one Cuddapah Indirabayamma tried to cause obstruction to the peaceful possession and enjoyment of the suit property by the plaintiff and a civil suit in O.S.No. 248 of 1992 was also filed in the District Munsif Court, Guntur, between them and a compromise was effected in that suit between the plaintiff and Cuddapah Indirabayamma and as per the said compromise, Indirabayamma was given life interest in an extent of Ac.12-27 Cents on the western side in the suit land while the plaintiff continued to be in exclusive possession of the eastern plot of Ac.10-20 Cents and after the death of the said Indirabayamma, the above said extent of Ac.12-27 Cents on the western side was also to revert back to the plaintiff. Indirabayamma, who continued to enjoy the said western portion of Ac.12-27 Cents during her life time, died on 10-1 -1961 and the plaintiff got into possession of the said land also and the entire suit land was then leased out to the tenants. The second defendant continued to be the tenant of the said extent of Ac.12-27 Cents while D-3 to D-6 continued to be the tenants of the remaining extent of Ac.10-20 Cents and they were cultivating the lands as tenants of the plaintiff who is the absolute owner of the said entire extent of Ac.22-47 Cents. While so, the first defendant began to lay claims for the suit land as the alleged adopted son of Indirabayamma, contending that she executed a will dated 30-12-1960 in his favour bequeathing the plaint schedule lands to him and he became the owner of the said properties, the first defendant was also threatening to interfere with the possession of the tenants D-2 to D-6 in the suit land. As such, the suit was originally filed seeking the relief of permanent injunction against the first defendant for restraining him from interfering with such possession and enjoyment of the tenants of the plaintiff. Subsequently the plaint was amended and the relief of recovery of possession was prayed for from D-1 to D-7 as D-2 to D-6, who are the tenants, were said to have assigned their rights in the entire plaint schedule lands to D-1 & D-7 without having any right to do so, besides the relief of arrears of rent for the period 1970-71 and 1971-72 from the defendants and also for future profits for use and occupation from all the defendants.
3. Defendants 2 to 6 did not contest the suit. Subsequent to the filing of the suit, D-5 and D-6 died and their legal representatives were brought on record as D-8 to D-11 who did not also contest the suit. The first defendant alone contested the suit contending mat he was the adopted son of Cuddapah Indirabayamma who executed a will on 30-12-1960 in his favour bequeathing her properties to him with absolute rights and after her death on 10-1-1961 he became entitled to the present plaint schedule lands; that the defendants 2 to 6 have also attorned to him and the plaintiff is not having any rights in the suit property and is not entitled for any of the reliefs prayed for in the suit It was also contended by the first defendant that the suit as framed is not maintainable and the suit is also barred by limitation.
4. On the basis of the pleadings in the suit, the lower Court framed the following I sues and additional issues for trial:-
"Issues:
1. Whether the suit filed by the agent of the trustee is maintainable?
2. Whether the gift deed dated 14-1-1882 conveyed the property or income on the property to the plaintiff?
3. Whether the gift deed is effective and valid after its cancellation by deed dated 22-2-1894?
4. Whether the compromise decree in O.S.No. 248/1922 D.M.C.,Guntur, confers a ny rights on the plaintiff?
5. Whether the first defendant is the adopted son of late Indirabayamma?
6. Whether the will dated 30-12-1960 is true and valid against the plaintiff?
7. Whether the plaintiffs are in possession of the suit properties by the date of suit?
8. Whether the suit as framed is maintainable?
9. Whether the Court fee paid is correct?
10. To what relief?
Additional Issues:
1. Whether the plaintiff has got title to the suit property?
2. Whether the suit is barred by limitation?"
5. On the basis of the evidence adduced in the suit, the lower Court answered all the issues except issues 1 & 8 in favour of the plaintiff having come to the conclusion mat the plaintiff has got absolute title to the suit lands in view of Ex.A-l1 gift deed executed by Cuddapah Raghavendra Rao and Srinivasa Rao and such gift deed is true and valid; that the first defendant has failed to prove that he is the adopted son of Cuddapah Indirabayamma or that he acquired the suit lands under any will said to have been executed in his favour by the said Indirabayamma and that the suit filed by the plaintiff is not barred by limitation. Having found all those issues on merits in favour of the plaintiff in view of the evidence adduced in the suit, the lower Court dismissed the suit in view of its findings under issues 1 & 8 which relate to the maintainability of the suit.
6. The plaintiff has chosen to file the present appeal questioning the findings of the lower Court under issues 1 & 8 and the decree and Judgment by which the suit was dismissed in view of the said findings, contending mat the lower Court has erred in coming to the conclusion that the suit is not maintainable. The first defendant who alone contested the suit, did not, however, file any cross-objections questioning the findings given against him on various other issues and the learned Counsel for the first respondent herein, who is the first defendant in the suit, did not also choose to question the findings on those other issues during the course of hearing of this appeal. Therefore, the only points that arise for consideration in the present appeal which relate to the findings under issues 1 & 8 given by the lower Court, are:
1. Whether the suit filed by the appellant/plaintiff through his power of attorney holder is maintainable?
2. Whether the Civil Court has jurisdiction to try the present suit?
7. Point No. 1: The plaintiff, as already stated above, is Sri Mukhya Pranaswami in the Uttaradi Mutt Building at Vijayawada by his trustee Sri Satya Pramoda Theerdha Swamuluvaru, represented by his power of attorney agent M.V. Ramanacharya. The contention of the first defendant is that the trustee of the plaintiff-Mutt has chosen to file the suit through his power of attorney holder; that a trustee is, however, not entitled to delegate his duty or power in that manner to file the suit on behalf of the plaintiff and that, therefore, the suit is not maintainable. The contention of the learned Counsel for the first defendant, who is the first respondent herein, is that a trustee is a person in whom confidence is imposed by the persons who created the trust and he is in a fiduciary capacity; that he cannot, therefore, delegate his duties and obligations to any other person, either a power of attorney holder or otherwise, even for the purpose of filing a suit and that, therefore, the suit is not maintainable in view of the relevant provisions of the Indian Trusts Act. It is seen from a perusal of the Judgment of the lower Court in this regard where this aspect is discussed under issue No. 1, that the learned Subordinate Judge has chosen to rely upon the Full Bench decision of the Gujarat High Court reported in Atmaram v. Gulamhusein, wherein, the earlier decision of the Privy Council reported in Man Mohan Das v. Janaki Prasad, AIR 1945 P.C. 23 and the decision of the Supreme Court reported in Abdul Knyum v. Alibhal, were also referred to and considered, in support of his conclusion that the trustee of the plaintiff-Mutt cannot delegate his power to file a suit to any power of attorney holder, and that the suit filed in that manner through the power of attorney holder is not maintainable. The learned Subordinate Judge, after referring to the above died decisions and observations made therein, has chosen to observe that the trustee of the plaintiff-Mutt cannot delegate his power to file the suit to a third person by executing a power of attorney in his favour and such delegation by a trustee is not permissible regarding a trust property and that the suit filed by such a power of attorney holder is not maintainable. The learned Counsel for the appellant, however, tries to contend that the facts in the above said three decisions are quite different and the observations made by the learned Judges in those decisions cannot be made applicable to the present case where the power of attorney was executed only for the purpose of fulfilling the formality of filing a suit regarding the trust property and not for meddling with or administering the property as such in any manner either for leasing out or selling away the same or for determining the lease-hold rights etc., and that the suit filed by a power of attorney holder to whom the powers are delegated by the trustee is quite maintainable and cannot be dismissed on the ground that the trustee is not entitled to appoint such a power of attorney holder to file the suit. A perusal of the above cited decisions and the relevant provisions of the Indian Trusts Act clearly shows that there is any amount of force in the above said contention of the learned Counsel for the appellant and the observations made by the Courts in the above cited decisions cannot be said to be applicable to the present case in view of the facts and circumstances of the case and the nature of the powers delegated and the reasons for which such delegation of powers to the power of attorney holder was made.
8. As already stated above, the lower Court has tried to rely upon the Full Bench decision of the Gujarat High Court reported in Atmaram v. Gulamhusein (1 supra), the decision of the privy Council reported in Man Mohan Das v. Janaki Prasad (2 supra) and the decision of the Supreme Court reported in Abdul Kayum v. Alibhai (3 supra), which were referred to in the said Full Bench decision of the Gujarat High Court. In the case concerned in the decision reported in Man Mohan Das v. Janaki Prasad (2 supra), the question mat arose for consideration was whether the transfer of the property of a Deity made by only one trustee out of the several existing trustees will be valid and binding on the Deity. It was observed by their Lordships that where the administration of the trust is vested in co-trustees, they all form as it were to one collective trustee and therefore, must execute the duties of the office in their joint capacity, that if anyone trustee refuses or is incapable to join, it is not competent for the others to proceed without him and the administration of the trust must, in that case, devolve upon the Court; that the act of one trustee done with the sanction and approval of cotrustee, may be regarded as the act of both and such sanction or approval must be strictly proved and that the transfer of the deity's property executed by one trustee only of the several trustees of the deity, cannot, however, bind the deity. In the other decision reported in Abdul Kayum v. Alibhai (3 supra), it was observed by their Lordships that the trustees cannot transfer their duties, functions and powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries; that a person who is appointed as trustee is not bound to accept the trust, but having once entered upon the trust he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by authority of the trust deed itself; that a trustee cannot also delegate his office or any of his functions except in some specified cases and that the rules against renunciation of the trust by a trustee and against delegation of his functions by a trustee are embodied in respect of trusts t which the IndianTrusts Act applies in Sections 46 & 47 of that Act. After referring to the said provisions of the Indian Trusts Act, it is observed by Their Lordships in para-17 of the Judgment:
"These Sections however embody nothing more or less than the principles which have been applied to all trusts in all countries. The principle of the rule against delegation with which we are concerned in the present case, is clear: a fiduciary relationship having been created, it is against the interests of society in general that such relationship should be allowed to be terminated unilaterally. That is why the law does not permit delegation by a trustee of his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust deed itself; apart from delegation in the regular course of business, that is, all such functions which a prudent man of business would ordinarily delegate in connection with his own affairs."
It is further observed by their Lordships in para-18 of the Judgment:
"What we have got in the present case is not delegation of some functions only, but delegation of all functions and of all powers and is nothing short of abdication in favour of a new body of men. Necessarily there is also the attempt by the old trustees to divest themselves of all properties vested in them by the settlor and vesting them in another body of persons. We know of no principle of law and of no authority which permits such abdication of trust in favour of another body of persons."
It is clear from the above said observations made by their Lordships of the Supreme Court in the said decision and the nature of delegation of powers made by the trustee in that particular case that their Lordships have chosen to make such observation regarding the validity of the delegation of powers by a trustee to third parties on the ground that such delegation of powers made by the trustee was delegation of all functions and powers of the trustee and such delegation is nothing short of abdication in favour of a new body of men; that there was also necessarily the attempt by me old trustees to divest themselves of all properties vested in them by the settlor and vesting them in another body of persons and that there is no principle of law and authority which permits such abdication of trust in favour of another body of persons. It is also dear from the various observations made by Their Lordships in the said decision that they made such observations regarding the validity of delegation of powers by a trustee in favour of a third party as the facts of the case revealed that there was a fiduciary relationship having been created in favour of the trustee and it was against the interests of the Society in general that such relationship should be allowed to be terminated unilaterally and that the law does not permit delegation by a trustee of his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust deed itself apart from delegation "in the regular course of business", that is, all such functions which a prudent man of business would ordinarily delegate in connection with his own affairs.
9. Such observations made by the Privy Council in the decision reported in Man Mohan Das v. Janaki Prasad (2 supra), and the Supreme Court In the decision reported in Abdul Kayum v. Alibhai (3 supra), were referred to in the above cited Full Bench decision of the Gujarat High Court reported in Atmaram v. Gulam-Husein (1 supra). In the case concerned in that Pull Bench decision of the Gujarat High Court also two questions arose for consideration. One is, whether one only out of several co-trustees can effectively determine the tenancy by giving notice to quit and the other question is whether a suit to evict the tenant can be filed by one or more co-trustees without joining the other cotrustees in the suit. After refering to the various observations made by the Privy Council and the Supreme Court in the above cited decisions, their Lordships of the Gujarat High Court have observed that when there are more than one trustees, one trustee alone cannot effectively determine a tenancy by giving a quit notice and cannot also file a suit to evict the tenant without adding the other trustees also as parties to the suit. It is also observed by Their Lordships in the said Full Bench decision of the Gujarat High Court that the power and function to determine a lease is of the same nature as the power and function to grant a lease and such functions are effected with a fiduciary duty with respect to which all co-trustees are bound to exercise their judgment and no one co-trustee can abdicate the exercise of his judgment by delegating such functions to his co-trustee or to any other person. It is also observed by their Lordships that the power to grant a lease of trust property cannot be delegated by the trustee to any one else as it is a power coupled with a fiduciary duty and such fiduciary duty cannot be made the subject of delegation and that any such attempted delegation would, therefore, be ineffective and exercise of such delegated power would be invalid. It is clear from the facts of the said case and the observations made by their Lordships of the Gujarat High Court that what was sought to be done in that particular case was the exercise of power of issuing a statutory notice to determine a tenancy and to file a suit to evict a tenant only by one trustee when there were more than one trustee. Under those circumstances, their Lordships came to the conclusion, after referring to the observations made in the above cited decisions reported in Man Mohan Das v. Janaki Prasad (2 supra) and Abdul Kayum v. Alibhai (3 supra), that the powers to grant lease, to issue a statutory notice to determine the tenancy and to file a suit to evict a tenant regarding the trust properties which are leased out, are coupled with fiduciary duties and such fiduciary duties, which affect the trust properties and their administration, cannot be made the subject of delegation and that such powers cannot, therefore, be exercised by one trustee alone when mere are more than one trustee. Such observations made by their Lordships in the said decision cannot, however, be made applicable to the facts of the present case in view of the nature of the powers delegated and the reasons for which such delegation of powers was made in favour of a power of attorney holder by the trustee of the plaintiff Mutt, especially in view of the relevant provisions of the Indian Trusts Act.
10. Before considering the nature of the powers delegated to the power of attorney holder by the trustee of the plaintiff-Mutt and the validity and maintainability of the suit filed by such power of attorney holder in the present case, it will be useful to refer to the relevant provisions of the Indian Trusts Act. Section 48 of the Indian Trusts Act is as follows:-
"48. When mere are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides."
This was the provision which was referred to and which was the subject matter of discussion in the above said Full Bench decision of the Gujarat High Court at well as the decisions of the Privy Council and the Supreme Court, in which the question of the validity of the action taken by one trustee alone when there are more than one such trustee relating to the administration of the trust property came up for consideration. In the present case, such question, however, does not arise as there is only one trustee and the question for consideration is regarding the appointment of a power-of-attorney holder as agent of the sole trustee to file the suit on behalf of the plaintiff-mutt. The relevant provision which has bearing to the facts of the present case is Section 47 of the Indian Trusts Act, which is as follows:-
"47. A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.
Explanation: The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this Section.
ILLUSTRATIONS
(a) A bequeaths certain property to B and C on certain trust to be executed by them or the survivor of them or the assigns of such survivor, B dies. C may bequeath the trust property to D and E upon the trusts of A's will.
(b) A is a trustee of certain property with power to sell the same. A may employ an auctioneer to effect the sale.
(c) A bequeaths to B fifty houses let at monthly rents in trust to collect the rents and pay them to C. B may employ a proper person to collect these rents."
11. Section 47 lays down that the duties or powers of trustees cannot be delegated, except under certain circumstances which are ennumerated therein. The general rule is that the office of trustee being founded on a relation of personal confidence, the powers and duties relating to it cannot be delegated. But, at the same time, it is to be seen that it would not be possible for a trustee to carry out his duties effectively unless he has certain amount of power of delegation. The position of a trustee would, in deed, be intolerable if he is made liable for every act in relation to the trust whether he does it himself or through an agent. The rules as to the delegation of acts and powers of trustees have, therefore, been based on a compromise between the extreme principles that the trustee being a fiduciary should be made strictly responsible for his acts, and on the other hand, the exigencies of business would not permit the trustee to do every act relating to the trust personally. There are, therefore, four heads of circumstances under which the delegation of powers is recognised by Section 47 namely, (a) where the instrument of trust itself provides for delegation, (b) where the delegation is in the regular course of business, (c) where the delegation is necessary, and (d) where the delegation is consented to by the beneficiaries. These circumstances are also pointed out in the above said decision of the Supreme Court. It is observed by their Lordships in the said decision that the law does not permit delegation by a trustee of his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust deed itself; apart from delegation "in the regular course of business, that is, all such functions which a prudent man of business would ordinarily delegate in connection with his own affairs. As the law has inevitably to recognise certain measure of delegation of powers by the trustee, the question would be as to what are such permissible limits of delegation. The explanation to Section 47 specifically provides that the appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of the Section. Illustration (b) to Section 47 shows that when a trustee of certain property has got power to sell the same, he may employ an auctioneer to effect such sale without having the necessity of himself conducting the sale. Illustration (c) to Section 47 conveys the impression that when number of houses which are let out on monthly rents are bequeathed to a particular person in trust to collect the rents and pay them to another person who is the beneficiary, such trustee may employ a proper person to collect such rents for the purpose of paying them to the beneficiary. It is dear from such illustrations and the explanation provided in Section 47, mat a trustee can appoint an agent to perform certain functions which do not involve any independent discretion to deal with the trust properties.
12. In the present case, the power of attorney holder is appointed by the trustee of the plaintiff only for the purpose of filing the suit for recovery of possession from the trespassers. Filing of such a suit on behalf of the trustee in his capacity as a power-of-attorney holder does not involve any independent discretion, nor does it involve any acts of administration of the trust property or acts of dealing with the trust property, such as, granting of lease-hold rights in favour of third parties or determining the lease by issuing quit notice or creating mortgage over the trust property or selling away such property, etc. The power of attorney holder in the present case is not conferred with any such powers to deal with or administer the trust property. He is merely empowered to file the suit after the plaintiff represented by the trustee has come to the conclusion on his own independent thinking mat the defendants who are considered as trespassers should be evicted from the suit property which belong to the plaintiff. It is clear from the evidence adduced in the suit that the trust property belonging to the plaintiff has been the subject matter of litigation in different Courts at various places throughout the State where such properties are existing and mat the plaintiff trustee had to fight out such litigation in the trial Courts as well as in the first appellate Courts and second appellate Courts. Ex. A-126, which is the certified copy of the Judgment in C.R.P.No. 139 of 1975 on the file the High Court, reveals one such instance where the plaintiff-Mutt had to approach the High Court in a litigation involving the trust property. It will almost be impossible for the trustee to attend to all such litigations in various Courts by himself attending such Courts and as such, the trustee has been delegating his powers by appointing a power-of-attorney holder as his agent to attend to such formal function of filing suits in different Courts. The present case is one of such instances where such power of attorney holder appointed by the trustee has filed the suit for evicting the defendants who are considered as trespassers. Such a suit filed by the power of attorney holder on behalf of the trustee of the plaintiff-Mutt, cannot be said to be not maintainable inasmuch as the delegation of such power to the power of attorney holder by the trustee can be said to be covered by the above said explanations provided Under Section 47 of the Act. It is to be seen in this connection that Order 3 Rule 1 C.P.C provides that any appearance, obligation or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person or by his recognised agent. Order 3 Rule 2 C.P.C. provides as to who are such recognised agents. Clause (a) of Rule 2 of Order 3 CP.C. provides that, persons holding powers of attorney authorising them to make and do such appearance, obligations and acts on behalf of the parties, are to be considered as recognised agents of such parties. Rule 32 of Civil Rules of Practice also enables such power-of-attorney holders to appear and file suits etc., on behalf of the persons who appoint such power-of-attorney holders. Inasmuch as the delegation of powers by appointing a power-of-attorney holder to file suits on behalf of the trustee cannot be said to amount to abdication of his duties as a trustee and inasmuch as such appointment of an agent to file a suit can be said to be covered by the explanations provided in Section 47 of the Indian Trusts Act in view of the nature of the work to be done by such power-of-attorney holder in filing a suit on behalf of a trustee, the present suit filed by the power of attorney holder on behalf of the trustee of the plaintiff-Mutt can clearly be said to be maintainable/ and the lower Court is not justified in dismissing the suit on the ground that such suit is not maintainable.
13. Point No. 2: The contention of the first defendant who is the contesting defendant in the suit, is that the suit is filed for eviction of the defendants 2 to 6 who are tenants and their assignee who is the first defendant; that such relief of evicting the tenants cannot be sought for in a Civil Court as such relief can be granted only by the tenancy Court under the A.P. Tenancy Act and mat the suit is, therefore, not maintainable. Such contention was accepted by the lower Court. The lower Court further found that even if the Civil Court can be said to have jurisdiction to entertain such a suit for recovery of possession from the defendants, the suit is not maintainable inasmuch as the required notice Under Section 106 of the Transfer of Property Act was not issued by the plaintiff for determining the tenancy and as such, the suit is not maintainable and is liable to be dismissed. But such view of the lower Court cannot be accepted in view of the facts of the case and the nature of the reliefs prayed for. It is to be seen in this connection that the suit was originally filed for the relief of permanent injunction to restrain the first defendant from interfering with the possession of the defendants 2 to 6 who had originally taken the suit land on lease from the plaintiff. Such suit was clearly maintainable in the Civil Court as the tenancy Court has no jurisdiction to grant such relief of permanent injunction. But after the first defendant filed his written statement and in view of the averments therein, the plaint was amended so as to seek the relief of eviction of the defendants from the plaint schedule lands and recovery of possession from them as well as the relief of recovery of arrears of rent from D-2 to D-6 for the period 1970-71 and 1971-72 and also recovery of future profits by way of damages for use and occupation from all the defendants for the subsequent periods.
14. It will be useful in this connection to refer to the amendments effected in the plaint and the reasons for effecting such amendments in order to appreciate the reliefs subsequently prayed for in the amended plaint The first defendant had filed his written statement denying the title of the plaintiff for the suit lands and setting up title in himself on the basis of his alleged adoption by Cuddapah Indirabayamma and also under the alleged Will said to have been executed in his favour by Indirabayamma. Such contention of the first defendant was negatived by the lower Court which held that there is no truth in such allegations; that the first defendant never acquired any rights in the suit property and that the plaintiff alone is the absolute owner of the suit property. It is further to be seen in this connection that the first defendant did not seek any of his rights to be in possession of the suit property from the plaintiff. D-2 to D-6 had obtained the suit lands from the plaintiff on lease and were cultivating the same as the tenants of the plaintiff. But, prior to the suit they executed the original of Ex.B-2 relinquishment deed dated 9-5-1972 in favour of the first defendant. It is seen from a perusal of Ex.B-2 that D-2 to D-6 treated the first defendant as owner of the suit properties and also specifically alleged that they had taken the suit lands on lease only from Cuddapah Indirabayamma and were cultivating the lands as her tenants and that after her death in the year 1961, they continued to cultivate the said lands on lease and that inasmuch as they were not able to pay the rent, they had surrendered the possession of the lands to the first defendant and the 7th defendant, who had become the owners of those properties after the death of Indiarbayamma for the consideration/mentioned in that deed. It is dear from such averments in Ex.B-2 mat D-2 to D-6 did not even allege that they had taken the lands on lease from the plaintiff, nor is it their case that having taken the lands on lease from the plaintiff they had chosen to deny the title of the plaintiff and set up the tide in the first defendant. It is their specific case in Ex.B-2 that they had taken the lands on lease only from Indirabayamma and were cultivtaing the lands on lease as her tenants and later on as tenants of (he first defendant and that they were, however, relinquishing such rights in favour of the first and seventh defendants under the said document. The first defendant evidently based his claim for possession of the lands under such document already executed in his favour by D-2 to D-6. In view of such circumstances which were all alleged in the written statement of the first defendant, the plaint was amended so as to seek the relief of recovery of possession from D-1 to D-7. In para 7(a) which was introduced in the plaint by way of amendment it is specifically alleged that D-2 to D-6 have no right to hand over possession of the suit property to D-1 and D-7 and that such conduct in handing over the possession "does not convey good title" to D-1 and D-7; that the defendants 1 & 7 are simply "assignees under D-2 to D-6" and that "the plaintiff is entitled to evict the new owners also". It is also alleged in para 7(a) that the original tenants who are D-2 to D-6 are not entitled to any notice to quit as they forfeited their lease-hold interest on account of their misconduct. It is clear from such averments made in the amended plaint in para 7(a) coupled with the averments in Ex.B-2, that the plaintiff chose to amend the plaint for recovery of possession which was alleged to be with D-1 and D-7 on account of the fact that D-2 to'D-6 had chosen to allege that Cuddapah Indirabayamma was the owner of the property and they had taken the lease only through her and not through the plaintiff and that they had surrendered the possession of the land to D-1 & D-7 who alone were considered as the owners of the property. It is not a case where D-2 to D-6 have admitted their tenancy under the plaintiff at the first instance and subsequently denying the title of the plaintiff who is their landlord and setting up such title in D-1 and D-7 for the first time. It is also not a case where D-2 to D-6 have first admitted their tenancy under the plaintiff and later on trying to assign their tenancy rights in favour of D-1 and D-7. If it is to be considered that the defendants 2 to 6 have assigned their tenancy rights in favour of D-1 and D-7 under Ex.B-2, then it will be a case where the plaintiff is trying to seek eviction of D-1 and D-7 in whose favour the assignment of tenancy rights as made by the original tenants D-2 to D-6. But the assignment made under Ex.B-2 by D-2 to D-6 is not such assignment of tenancy rights, and the mention in para 7(a) and 7(c) of the amended plaint to the effect that D-1 and D-7 are "assignees" under D-2 to D-6 cannot be said to relate to the assignment of any tenancy right by D-2 to D-6 in favour of D-1 and D-7. The lower Court went wrong in treating D-1 and D-7 as assignees of D-2 to D-6 regarding their tenancy rights and interpreting the averments in para 7(a) of the plaint to convey such impression. But no such impression can be said to be conveyed by para 7(a) or (c) inasmuch as there was no such assignment of tenancy rights by D-2 to D-6 in favour of D-1 and D-7 under Ex.B-2 and the plaintiff never treated D-1 and D-7, as per the averments in the amended plaint, as the assignees of tenancy rights from D-2 to D-6. This is clear from the very mention in para 7(a) of the amended plaint that the plaintiff is entitled to evict the new owners" also refering to D-1 and D-7. Therefore, from the averments in para 7(a) coupled with other circumstances revealed from Ex.B-2 and the contentions raised by the first defendant in his written statement, due to which alone the plaint was amended for the relief of recovery of possession, that the plaintiff was dearly under the impression that D-2 to D-6 had not even chosen to admit their tenancy under the plaintiff and on the other hand, had chosen to consider themselves as the tenants of Cuddapah Indirabayamma and later on the tenants of D-1 and D-7 and that they were, therefore, surrendering their right of possession to D-1 and D-7 and they had not surrendered any rights of tenancy obtained from the plaintiff in favour of D-1 and D-7. Under those circumstances, the plaintiff dearly treated D-1 and D-7 who are claiming possession of the property, as trespassers and as such, the plaint was amended and relief of recovery of possession was added in the suit. Such relief of recovery of possession from D-1 and D-7who are considered as trespassers, cannot be granted by a Tenancy Court and such relief can be sought for only in a Civil Court As already stated above, the lower Court went wrong in treating D-1 and D-7 as assignees of tenancy rights of D-2 to D-6 originally obtained from the plaintiff and coming to the conclusion that even for evicting such assignees of tenancy rights by the original tenants, the Tenancy Court alone has to be approached. Inasmuch as D-2 to D-6 did not even admit the plaintiff as their landlord at any time as seen from Ex.B-2 and in as much as they specifically contended that they obtained the suit lands only from Cuddapah Indirabayamma on lease and later on continued as tenants under D-1 and D-7 and subsequently surrendered the possession of the lands under Ex.B-2 to D-1 and D-7, D-1 and D-7 cannot be considered as assignees of tenancy rights from D-2 to D-6 and as such, the suit for recovery of possession from D-1 and D-7, who are to be considered only as trespassers, can be granted only by a Civil Court and not by a Tenancy Court. Inasmuch as D-1 and D-7 (who) are now claiming possession of the suit properties in their own right and not as tenants or assignees of tenancy rights from D-2 to D-6 even as per the allegations in the amended plaint, which alone will have to be take into consideration for the purpose of deciding the jurisdiction of the Court, the question of issuing any notice Under Section 106 of the Transfer of Property Act does not arise as it is not a case where D-2 to D-6 have admitted their tenancy rights under the plaintiff at the first instance and later on chose to deny die title of the plaintiff and setting up tide in D-1 and D-7 as already stated above. Therefore, the lower Court went wrong in dismissing the suit on the ground that the Civil Court has no jurisdiction to try the suit for recovery of possession and that the suit is also not maintainable for want of a notice Under Section 106 of the Transfer of Property Act.
15. It is also to be seen in this connection that as per the amended plaint, the plaintiff is seeking not only the relief of recovery of possession from D-1 and D-7 who are considered as trespassers, but also future profits by way of damages for use and occupation for the period subsequent to the filing of the suit. Such prayer is specifically evident in para 7(c) of the amended plaint, wherein it is alleged that D-1 and D-7, who are liable to be evicted from the suit property as they are trespassers, are bound to pay future profits by way damages for use and occupation. The relief of recovery of future profits by way of damages for use and occupation cannot admittedly he granted by a Tenancy Court and such relief can be granted only by a Civil Court In the decision of this Court reported in Satya Pramoda Thirdha Swamukvaru v. M. Gunnayya, the reliefs prayed for in the suit related not only for eviction but also for damages for use and occupation in a Civil Court. Their Lordships observed that when only a part of the relief claimed can be granted by a Tenancy Court, the Civil Court has jurisdiction to entertain the suit; that as the Tenancy Court in that particular case cannot grant the relief for damages and can grant only the relief of eviction, the Civil Court had jurisdiction to entertain that suit. This decision was also referred to by the lower Court which, however, observed that the facts in that particular case are not applicable to the present case ''as the plaintiff in this case does not pray for any damages". But this is not a correct statement of facts inasmuch as para 7(c) of the amended plaint clearly relates to the relief of recovery of future profits by way of damages for use and occupation from D-1 and D-7 who are considered as trespassers. Therefore, in that view also, the Civil Court has jurisdiction to try the present suit inasmuch as the tenancy Court will not have any jurisdiction to grant such relief of recovery of damages for use and occupation.
16. In another decision of this Court reported in V. Ramulu v. Appatanaidu, 1969 (2) ALT 303 it is observed by this Court that jurisdiction of the Civil Court is not excluded when special forums could not grant reliefs prayed for in a civil suit, as the plaintiff cannot be required to split up his cause of action and seek redress partly in a special tribunal and that the mere fact that certain question falling within the exclusive determination of the special tribunal incidentally falls for consideration while judging the truth or falsity of the defence set up will not exclude the jurisdiction of the Civil Court In the present case, the relief of recovery of future profits by way of damages for use and occupation cannot be granted by the Tenancy Court and the relief of recovery of possession as prayed for in the plaint cannot also be granted by such Tenancy Court inasmuch as the defendants 1 & 7 are neither tenants of the plaintiff nor the assignees of any tenancy rights claimed by D-2 to D-6 through the plaintiff, as already discussed above. Therefore, in any view of the matter, the lower Court has erred in coming to the conclusion that D-1 and D-7 are the assignees of tenancy rights claimed by D-2 to D-6 through-the plaintiff and as such, the tenancy Court alone has got jurisdiction to try, the suit and also in coming to the conclusion that the suit is not maintainable as the notice Under Section 106 of the Transfer of Property Act was not issued to determine the alleged tenancy. The Civil Court has got jurisdiction to entertain the suit for the reliefs prayed for in the amended plaint regarding recovery of possession as well as for future profits by way of damages.
17. The lower Court has pointed out in its Judgment that the plaintiff has prayed for recovery of arrears of rent in para 7(b) of the amended plaint and that such relief can be separately asked for in a suit mat can be filed in a Civil Court while filing a petition for eviction in the Tenancy Court But it is to be seen that the relief of recovery of rent as prayed for in para 7(b) of the amended plaint relates only to the period 1970-71 and 1971-72 from D-2 to D-6 inasmuch as the plaintiff contended that they were the tenants under him during the said period which relates to the period prior to the filing of the suit But, subsequent to the written statement filed by the first defendant the plaint was amended and para 7(c) was added in the plaint seeking for recovery of future profits by way of damages for use and occupation from D-1 and D-7, as already stated above. Therefore, the lower Court was not justified in observing that the relief of recovery of rents from D-2 to D-6 can be sought for in a Civil Court while filing a petition for eviction in the Tenancy Court and mat the suit for eviction in the Civil Court is, therefore, not maintainable. In view of all such circumstances, the finding of the lower Court mat the Civil Court has no jurisdiction to try the present suit cannot be sustained and such finding is to be set aside. It is held, in view of all such circumstances/ that the Civil Court has got jurisdiction to try the suit for the reliefs prayed for therein. Inasmuch as the findings on all other issues given by the lower Court are in favour of the plaintiff and inasmuch as it is now found that the suit filed by the plaintiff is maintainable, the decree and Judgment of the lower Court are liable to be set aside and the suit is to be decreed for the reliefs prayed for.
18. In the result, the appeal is allowed with costs and the Decree and Judgment of the lower Court are set aside and the suit is decreed with costs for the reliefs of recovery of possession from the defendants and arrears of rent as well as future profits by way of damages for use and occupation as prayed for. The relief of future profits by way of damages for use and occupation can be ascertained on a separate application to be filed by the plaintiff in that regard.