Andhra HC (Pre-Telangana)
Sambhu Yellareddy vs Laxmamma And Ors. on 11 September, 1964
Equivalent citations: AIR1965AP474, AIR 1965 ANDHRA PRADESH 474
ORDER Venkatesam, J.
This second appeal raises the following questions:-
(1) The scope of S. 102 (e) of the Hyderabad Tenancy and Agricultural Lands Act.
Sri Narasimha Iyengar relies on a decision of Justice Gopal Rao Ekbote in Syed Sharfuddin v. Andrews, (1963) 1 Andh WR (NRC) 9 (1), that in order to invoke S. 102 (e) a notification in the Jarida, reserving any particular area for urban, non-agricultural or industrial development should be made, and that the notification of the municipal limits of the City of Hyderabad already made is not sufficient to exclude the operation of the said Act to agricultural lands situate within those limits.
(2) The scope of Ss. 34 (1) (a) (iii) and 34 (3) of the Hyderabad Tenancy and Agricultural Lands Act.
(3) The scope of Ss. 4 (3) and 7 of the Hyderabad Assami Shikmis Act (No. 1 of 1354 Fasli).
Considering the importance of the questions raised, I think it desirable that they are disposed of by a Bench.
(2) I may also add that Sri Sivarama Sastry, the learned counsel for the appellant, raised a contention that the respondents having contended before the Tribunals below that the Hyderabad Tenancy and Agricultural Lands Act has no application at all, cannot be permitted to argue that the case falls under S. 34 (3) of that Act, at this stage. This plea, along with the other contentions may be raised before the Bench, before whom the appeal itself will be posted for disposal.
JUDGMENT Venkatesam, J.
(3) This second appeal comes before us on a reference made by one of us (Venkatesam, J), It is filed by the defendant, Shambhu Yella Reddy, against the decision of the Chief Judge, City Civil Court, Hyderabad, in A. S. No. 49 of 1958. The facts relevant for a determination of the questions raised may be gathered from the antecedent history of this case.
(4) One Athely Uialaiah filed a suit Case No. 113/1 of 1955 on the file of the Third Judge, City Civil Court, Hyderabad, for a declaration of his right to possess and for a perpetual injunction in respect of old S. Nos. 126 and 132 and new S. Nos. 152, 153 and 158, situate at Zamistanpur, Musheerabad, Hyderabad , restraining Sambhu Yella Reddy, the appellant herein, from interfering with his possession. One Abdul Khadir, son of Kazim Yar Jung, was also impleaded as one of the defendants, but later transposed as the second plaintiffs . The said Abdul Khadir was the pattadar. The first plaintiff was in possession of the suit lands under a "Qaulnama" executed in May, 1950, for a period of three years. The defendant claimed to be a protected tenant by reason of this cultivation of S. Nos. 126 and 132 as lessee during the period 1343 F. 1357 F. Thereafter, the lands were in the personal cultivation of the second plaintiff from 1357 F to 1359 F. on 25th May, 1950, the second plaintiff leased the lands in favour of the first plaintiff leased the lands i.e., upto the end of 1362 F. It may be noted that the Hyderabad Tenancy and Agricultural Lands Act (No XXXof 1950) (Hereinafter referred to as the Tenancy Act) came into force on 10-6-1950. The first plaintiff filed an application on 25-8-1950 before the Vth City Magistrate, City Criminal Court, under S. 145, Cr. P. C. complaining of interference with his possession and consequential likelihood of breach of the peace, at the instance of the defendant. There was a preliminary order, and also an attachment of the lands on 28-8-1950. The Criminal Court negatived the possession of the plaintiff and upheld the claim of the defendant by its order, dated 19-4-1951. On revisions the High Court of Hyderabad reversed that order by its judgment , dated 8-10-1951.
(5) Thereupon, the defendant, claiming to be a protected tenant, filed an application on 28-12-1951 before the Civil Administrator, which was later forwarded to the Tahsildar for enquiry. The lands were taken under Government control on 9-12-1951 Eventually, the Collector held by his order, dated 19-1-1952 that the lands are situate in the Hyderabad City limits and the Tenancy Act did not apply. The Board of revenue, however, on appeal, set aside the order of the collector, on 19-1-1952, and upheld the contention of the defendant that he was a protected tenant. When the matter was taken up to the Revenue minister by his order dated 15-2-1952 her set aside the decision of the Board of Revenue and ordered that under S. 23 of the Hyderabad Assami Shikmi Act (No. 1 of 1354 F. ) hereinafter referred to as the Shikmi Act:" the defendant is entitled to ten years possession form 1357 F. As the defendant was kept out of possession since the filing of the petition he was held entitled to remain in possession for the rest of eight years, commencing from the date on which he was put in procession of the lands in execution of that order. The revenue Minister in conclusion, ordered that the ;obsession of S. / Nos. 126 and 132 should be restored to the defendants, Shambhu Yella Reddy, immediately, even though crops were raised by the other party.
(6) Against that order of the revenue Minister a Writ, Petition W. P. No. 150/5 of 1952 was filed in the High Court but the same was dismissed.
(7) The case of Ujalayya in the plaint is the that by reason of the aforesaid order of the Revenue Minister the defendant was trying to dispossess him, and that the said order is illegal and void for want of jurisdiction , as the suits lands and situate within the municipal limits of Hyderabad and not Government by the Tenancy Act or the Shikmi Act. He therefore, prayed for a declaration that the plaintiffs are entitled to be in possession of the suit lands, and that the defendant be restrained from interfering with the possession of the 1st plaintiff.
(8) The suit was resisted by the defendant, contending that the 2nd plaintiff was not the Pattadar, and the 1st plaintiff was not in possession of the suit lands on the basis of a lease from 1359 F. to 1362 F. he also contended, that as per the order of the Revenue Minister pursuant to section 23 of the Shikmi Act, he was entitled to a lease of ten years. The 1st plaintiff also filed a rejoinder supporting his case.
(9) The trial Judge framed the relevant issues. He upheld the order of the Revenue Minister, and dismissed the suit on 7-11-1953. On appeal, the Chief Judge, City Civil Court, Hyderabad affirmed the order of the trial Court by his judgment, dated 30-11-1954. Against that , the matter was carried in second appeal No. 382/2 of 1954-55 to the High Court of Hyderabad. The Bench in that High Court by its judgment dated 7th July 1955, held that the judgment of the Revenue Minister was not in conformity with the fundamental principles of Judicial procedure as he acted on evidence recorded in the proceedings of the Criminal Court. under S. 145 of the Criminal Procedure code. Further the provisions of S. 23 of the Shikmi Act were held not duly complied with, as according to that section, a lease granted after the commencement of the enforcement of that Act shall be deemed to be a lease for ten years, and therefore, a findings of the question of lease should have been recorded either by the Tahsildar or the Collector. They also held that the Revenue Minister inferred an oral lease from the deposition of Kazim Yar Jung in the Criminal Court and the that the City Civil Courts were in influenced by the judgment of the High Court in the Writ application ignoring the fact that considerations in writ Petition are different from those in a regular suit. In the result, the appeal was partly allowed, the judgment under appeal was set aside, and the case remanded for recording evidence on the question of lease, and for disposing of the suit in accordance with law.
(10) Pursuant to the said remand order of the High Court , the trial Court framed an additional issue as follows :-
"Whether an oral; lease was granted in favour of the defendant in 1356 F. as alleged. In case it is proved what is its effect of the suit ?"
(11) After recording evidence on that issue, and reviewing the entire evidence the trial Judge held that the civil Court is competent to try the suit and that pursuant to the findings of the Revenue Minister. the lands in question constitute an area for urban purposes. beyond the purview of the Hyderabad Tenancy Act, and being non-agricultural land, the Tenancy Act did not apply. On the additional issue he found that there was no oral lease or agreement between Shambhu Yella Reddy and the defendant, and Kazim Yar Jung, On those findings the learned Judges held that the defendant was not entitled to any protection under the Shikmi Act. and decreed the suit as prayed for.
(12) Against that decision the defendant preferred appeal, A. S. No. 49 of 1958, to the Chief Judge, City Civil court, Hyderabad That Court framed two points for determination viz.: (1) Whether the plaintiffs had no cause of action on the date of the suit or subsequent to that date ; and (2) Whether the appellant had a preferential right. Both the points were found in favour of the plaintiff and the decree of the trial Court was affirmed. It is against this decision that this second appeal is preferred.
(13) Sri Sivarama Sastry, the learned counsel for the appellants raised before us the following contentions :-
(1) that the decision of the Hyderabad High Court in S. A. No. 328/2 of 1954-55 (Hyd.) is not binding on us in this second appeal :
(2) that the High Court on the former occasion did not decide that the Civil Court had jurisdiction but left the entire case of the defendant open ;
(3) that the Tenancy Act governs the case and the jurisdiction of the Civil Court is outsted;
(4) that the moment the order of the Revenue Minister is held to be void of the Revenue Minister is held to be void, the order of the Board of Revenue is restored, and the defendant must be deemed to be a protected tenant under S. 34 (1) of the Tenancy Act :
(5) Even otherwise, the defendant acquired the rights of a protected Assami Shikmi under S. 3 of the Shikmi Act, that the said tenancy was not terminated under S. 7 of that Act, that the defendant is, therefore, entitled to seek recovery of possession, and that his rights are safeguarded under S. 103, second proviso of the Tenancy Act;
(6) that the lease in favour of the plaintiff is opposed to S. 3 of the Shikmi Act, and therefore he is not entitled to the relief of declaration and (7) that the period of lease of three years from 25-5-1950 having expired on 24-5-1953. the first plaintiff is not entitled to any right to be declared.
(14) Sri Narasimha Iyengar, the learned counsel for the respondents, refuted these arguments contending that the High Court in its remand order did not reverse the order of the Revenue Minister in toto, but upheld his findings that the defendant is not a protected tenant, and only set aside the finding that the defendant was a lessee under the Shikmi Act, and directed further evidence counsel submitted that the High Court upheld the finding of the Revenue Minister that the Tenancy Act did not govern the case and that it is binding on this Court.
(15) He then submitted that S. 103 of the Tenancy Act protected only such rights or privileges acquired under the Shikmi Act which are not provided for or are not inconsistent with the Tenancy Act. He further contended that the finding of the Court below that the oral lease set up by the defendant is not true is a binding upon this court and not open to review, and that in view of that finding the defendant cannot claim any rights even under S. 23 of the Shikmi Act. He further submitted that the first plaintiff was admittedly a tenant under the oral lease which continued in force till 1953 and the possession of the first plaintiff thereafter is that of tenant holding over. In any event, since the 2nd plaintiff also has been transposed, and the declaration is granted in favour of both the plaintiff the defendant cannot take any objection to that decree.
(16) Points 1 to 4 may be taken up together. The argument of Sri Sivarama Sastry for the appellants is that the High court of Hyderabad while remanding the suit did not expressly decide that the Tenancy Act had no application, or that the Civil Court had jurisdiction and that the question is res integra and can be canvassed before us. He buttressed that argument by stating that decisions of the erstwhile Hyderabad High court are not binding on this court. He made a further submission, that even assuming the previous order of remand is binding on this Court. since the order of the Revenue Minister was set aside by the High Court the order of the board of Revenue automatically is revived, according to which the defendant is a protected tenant, and entitled to the benefits of the Tenancy Act.
(17) None of the above contentions can be accepted. The first question posed by the Hyderabad High court was, whether the decision of the Revenue minister is correct, and whether the Civil Court was competent to canvass its correctness. On that point, the High court observed that the Revenue Minister applied the Shikmi Act, that there is no provision in that Act which excluded the jurisdiction of the Civil Courts, and that a perusal of the judgment of the trial Court showed that this was conceded at the Bar, though no reference to the provisions of the Act was given in the judgment. The learned judges of the high Court also held that a perusal of sub-ss. (1) and (5) of S. 7 and Ss. 20 and 21 of that Act left no room for doubt about the matter, and observed that the jurisdiction of the civil courts was expressly saved by the Shikmi Act. their lordships in conclusion, held that the Civil court had Jurisdiction to consider the correctness or otherwise of the Revenue Minister's Order, as he applied the provisions of S. 23 of the Shikmi Act, under S. 103 of the Tenancy Act. To quote the words of the learned Judges : "The inference is, therefore, quite clear that this Court has jurisdiction. to consider the correctness or otherwise of the Revenue Minister's Order, as he applied the provisions of S. 23 of the Shikmi Act, under S. 103 of the Tenancy Act. To quote the words of the learned Judges: "The inference is, therefore, quite clear that this Court has jurisdiction."
(18) The Hyderabad High Court by its judgment of remand decided that the order of the revenue Minister was not in conformity with the fundamental principles of judicial procedure, as he acted upon evidence recorded in criminal proceedings fro concluding that there was a lease in favour of the defendants and also ignored the facts that the provisions of S. 23 of the Shikmi Act were not complied with. The High Court held that the trial Judge and the Chief judge, City civil Court were influenced by the opinion expressed by the High Court in the Writ Application in which considerations are different from those in regular suits. It, therefore, directed that evidence on that point, viz., whether oral lease was granted to the respondent in 1357 F., as alleged by the defendant, should be recorded after giving an opportunity to both parties. Then the Judgment concluded thus:
"The appeal is therefore, partly allowed, The judgment under appeal is set aside and the case remanded for recording of evidence as directed above. After recording of the evidence the case should be disposed of in accordance with law. Costs will abide the result."
(19) In view of this judgment it is futile for the appellant to contend that the Civil Court did not have jurisdiction to entertain the suit, or that the High Court did not decided that the Hyderabad Tenancy Act did not apply to the instant case, or that the entire order of the instant case or that the entire order of the Revenue Minister was set aside, reviving the order of the Board of Revenue. All these contentions have, therefore to be rejected.
(20) The next argument to be considered is, whether that decisions is binding upon us. We may at the outset mention that the remand order made by the Hyderabad High Court is a composite order. It has given findings on certain matters, and remanded the suit on others, with the result that matters decided cannot be reagitated before us, nor can the correctness of the directions in the remand order be challenged. If an authority is needed, reference may be made to the decision of the Madras High Court in Ethiraja Mudali v. Muthu Reddi . In that case, the High Court dismissed an appeal against the order of the District Court, setting aside a mortgage decree of the trial Court, and remanding the case for disposal, after applying the provisions of the Madras Agriculturists Relief Act. The High Court also gave certain directions to the trial Court as to the basis on which the scaling down of the debt should be made in view of Madras Act XXIV of 1950, which had come into force during the pendency of the second appeal. The trial Court, after remand, and the appellate Court on appeal against that decisions, decided according to the directions of the High Court . In second appeal against the second decisions of the Lower Appellate Court, the correctness of the directions given by the high Court were questioned, on the ground that it had no jurisdiction to do so. Their Lordships held that the scope of an order made in an appeal against the order of remand is not so limited that the appellate Court cannot given directions to the trial Court as to the manner in which it should deal with the suit when it goes back to it. It was laid down that the order dismissing the second appeal together with the directions given by the high Court formed one integral whole and both had become final, so that it was not open to the appellant to show that those directions were erroneous.
(21) As against this authority , Sri Sivarama Sastry, the learned counsel for the appellant, cited Pichu Ayyangar v. Ramanuja Jeer Swamigal, AIR 1940 Mad 756 and Secy of State v. Allu Jagannadham. AIR 1941 Mad 530 (FB). But the facts in those cases are different from the present case, and they are distinguishable, In fact, in , the Full Bench decision in AIR 1941 Mad 530 (FB) was cited and distinguished.
(22) Following the decision of we hold that the contentions on behalf of the appellant are unsustainable.
(23) We shall now consider the next argument, viz., that the decision of the Hyderabad High Court is not binding of the Andhra Pradesh High Court Section 52 of the States Reorganization Act (Act XXXVII of 1956) enacts thus :-
" Jurisdiction of High Courts for new States. The High Court for a new State shall have, in respect of any part of the territories included in that new state, all such original, appellate and other jurisdiction as under the law in force immediately before the appointed day, is exercisable in respect of that part of the said territories by any High Court or Judicial Commissioner's Court for an existing State."
Section 54 of the said Act lays down as follows :-
"Practice and Procedure. Subject to the provisions of this part, the law in force immediately before the appointed day with respect to practice and procedure in the High Court for the corresponding State shall, with the necessary modifications, apply in relation to the High Court for a new state and accordingly the High Court for the new state shall have all such powers to make rules and orders with respect to practice and procedure as are, immediately before the appointed day, exercisable by the High Court for the corresponding State :
Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court for the Corresponding State shall, until varied or revoked by rules or orders made by the High Court for a new State, apply with the necessary modifications in relations to practice and procedure in the High Court for the new State as if made by that Court."
A reading of these provisions reveals that the Andhra Pradesh High Court shall have, in respect of that part of the Nizam's territory included in the State of Andhra Pradesh, the same original and appellate jurisdiction which the Hyderabad High Court had, that the law with respect to practice and procedure in that High Court shall, with necessary modifications, apply in relation to the High Court of Andhra Pradesh. The scope and effect of an order of remand, even under the Hyderabad Civil Procedure Code, is in no manner different from that under the Code of Civil Procedure in British India. In that view, the contention that as Judges of the High Court of Andhra Pradesh we are not bound by the previous judgment of the High Court of Hyderabad has to be rejected.
(24) Points 5 to 7 will now be considered. After remand, the evidence was recorded by the Third Judge, City Civil Court as per the directions in the remand order. The Order of the trial Court, dated 17-9-1953 shows that the Advocate for the defendant admitted that the lease in favour of the 1st defendant admitted that the lease in favour of the 1st plaintiff was for a period of three years under a lease-deed of May, 1950 and that that period had not expired at the time of institution of the suit. A certified copy of the statement of Nawab Kazim Yar Jung recorded in Case No. 170/5 of 1950 on the file of the IVth City Magistrate, Hyderabad , was admitted by the City Civil Judge under S. 33 of the Indian Evidence Act, to which no objection was taken by the defendant. In that, the Nawab has admitted the lease in favour of the plaintiff under a lease-deed. There is also the oral evidence of P. W. 3 to the effect that the first plaintiff got into possession under lease-deed dated 25-5-1950, agreeing to pay a rent of Rs. 75 per annum and that though the land was taken under Government control for a while, the first plaintiff got back possession after the order of the high court. P. W. 4 a neighbouring tenant, also deposed that the first plaintiff was cultivating the lands for six years or so in his capacity as lease ; which would mean that the first plaintiff was in possession from 1950. P. W. 2, a clerk in the Tahsil, Garbi, deposed that for the suit lands. S. Nos. 123 and 132 of Zamistanpur, survey record was prepared once and that the provisional list was first prepared in 1951, and 15 days thereafter final list was prepared. After referring to the original final register, the witness deposed that in the Tenancy column, the name of Ujalaiah was entered. D. W. 4, Jagannatharao, deposed that on the date of promulgation of the Tenancy in 1950, Ujalaiah was in possession of the land.
(25) In the light of this documentary and oral evidence , the Courts below held that the first plaintiff was in possession of the suit lands pursuant to the lease from 1950 and that he was in possession on the date of the suit. This is a finding of fact which cannot be interfered with in second appeal.
(26) Having arrived at that finding the lower appellate Court addressed itself to the question, whether the defendant could show a better title than the plaintiff and the additional issue framed after remand was considered. On the evidence adduced, contention that the second plaintiff inducted the defendant under an oral lease was not accepted. Such a case was not put forward by the defendant in his written statement . In his deposition he stated that after the previous lease-deeds, he continued in possession on an oral lease. The evidence of P. W. 3 already referred to was that the second plaintiff cultivated the suit lands through his servants for two or three years, and that he leased it to the plaintiff in 1950, which would mean that the second plaintiff was in possession during 1356 to 1358 F and 1359 F. P. W. 4, whose evidence was already considered deposed that Kazim Yar Jung cultivated the suits lands in 1357 and 1358 f. Kazim Yar Jung himself deposed in proceedings under S. 145 Cr. P. c. that prior to the lease in favour of the first plaintiff he personally cultivated the lands. This evidence negatives the claim of the defendant that the suit lands were leased to him from 1357 F. by an oral agreement. The evidence of D. W. 4 that in 1358 F. and 1359 F. Ahmed Mohiuddin cultivated the lands would not help the defendant's case. This evidence, therefore, establishes that the defendant was not a tenant under the Shikmi Act. as wrongly assumed by the Revenue Minister and is therefore, not entitled to the rights under the said Act.
(27) The Courts below also found that even granting that the Tenancy Act applied to the case under S. 34 explanation 3(3), since the land was personally cultivated by the land-holder for more than one year before the commencement of that Act, he cannot be deemed to be a protected tenant. The lower Appellate Court also relied upon S. 4 93) of the Shikmi Act, which enacts thus :-
"In cases where the holder is using the land for any of the purposes mentioned in S. 7, no evicted, protected Asami Shikmi shall be entitled to recover possession under the provisions on this section unless he is entitled to recover possession under S. 7."
Since Kazim Yar Jung cultivated the lands personally, the defendant was held not entitled to recover possession from the land-holder under S. 4 (3) of the Shikmi Act. This leads to the conclusion that the defendant was not only not in possession, but had no right to recover possession, and had no preferential right against the first plaintiff.
(28) Further, S. 103, second proviso (c) of the Tenancy Act has not saved and cannot be construed as saving, any rights inconsistent with the rights secured by the said Act. Since S. 34 , Explanation 3 (3) of the Tenancy Act has taken away the rights of a person situate like the defendant, they cannot be deemed to have been saved under S. 103, second proviso (c). The argument that the rights of the defendant under the Shikmi Act are saved under S. 103 of the Tenancy Act cannot, therefore be accepted.
(29) The contention that the lease period of the plaintiff has expired, and therefore, he has no right to sue for a declaration has no force, as his possession after the expiry of the lease was only that of the tenant holding-over. Even otherwise, the land-holder has been transposed as the second plaintiff, and the declaration granted in favour of both the plaintiffs cannot, in any event, be objected to. In the circumstances of the case, it cannot be said that the lease in favour of the plaintiff is in any way opposed to S. 3 of the Shikmi Act.
(30) For all these reasons, points Nos. 5 to 7 are also found against the appellant . No other point has been argued before us.
(31) In the Result, the decision of the Court below is confirmed, and the appeal is dismissed with costs.
(32) Appeal dismissed.