Andhra HC (Pre-Telangana)
Kola Narsimhulu S/O Late Musalayya vs Sri Venugopalaswamyvaru The Presiding ... on 10 August, 2006
JUDGMENT V. Eswaraiah, J.
1. This appeal is directed against the judgment and decreed dated 08.11.1996 passed in O.S. No. 59 of 1996 by the District Judge, Vizianagaram. The appellant is the defendant in the suit O.S. No. 59 of 1996 filed by the respondent/plaintiff - Devasthanam for recovery of possession of the suit schedule mentioned 13 acres of wet land from the defendant and to direct the defendant to handover vacant possession of the same with standing crops and direct the defendant to render true and correct account of the mesne profits derived from the suit lands from 30.08.1975 till delivery to the plaintiff with interest at 18% per annum and for costs of the suit. The suit was decreed with costs and future profits were directed to be determined on filing a separate application.
2. The parties herein are referred to as they were arrayed in the suit.
3. It is the case of plaintiff-Devasthanam that the suit schedule land admeasuring 13 acres wetland covered by Patta No. 33, Sy. No. 6 situated a Kothavalasa Village and Mandal, Vizianagaram District, belongs to the plaintiff deity and the said suit lands were proposed to be auctioned by way of public auction for a period of six years.
4. Apart from other terms and conditions in the conditions of sale dated 13.05.1975, it was specifically stated and explained to the defendant and others present that the proposed auction has to be approved and confirmed by the higher authorities of the Endowments Department. In the actual auction proceedings held on 13.05.1975 the defendant became the highest bidder for Rs. 1,000/- rent per year and it was brought to the notice of the defendant that the auction has got to be approved by the higher authorities of the Endowments Department and thereafter he is bound to enter into a regular registered lease deed with respect to the suit lands and obtain possession thereof from the Hereditary Trustee. But without waiting for the approval or confirmation of the auction, the defendant prevailed upon the then Hereditary Trustee and took undue advantage of his dire need of money, temped him with same and obtained from him a cowl on 30.08.1975, locally called as KADAPA in favour of the plaintiff-deity for six years in respect of the suit schedule lands. It is stated that six years period is already over by 1981-82. It is stated that when the then Hereditary Trustee (Nunna Appalacharyulu) submitted the auction proceedings for approval and confirmation of the Commissioner of Endowments, Hyderabad, through the Assistant Commissioner; the Commissioner did not confirm the same on the ground that the highest bid of Rs. 1,000/- per year as rent for the suit wet lands measuring Ac13.00 cents is not fair and reasonable when compared to the prevailing rates and directed the Hereditary Trustee to adjust the bid amount of the defendant towards the damages for use and occupation and lease out the same again through public auction as early as possible. The Hereditary Trustee issued a registered notice dated 24.03.1976 to the defendant intimating him of the two proceedings dated 26.02.1976 and 14.03.1976 issued by the Commissioner of Endowments, Hyderabad and the Assistant Commissioner, Anakapalli, respectively, stating that the auction held on 13.05.1975 stood cancelled and demanded the defendant for payment of balance of the damages for use and occupation of the suit lands for the year 1975-76 and the defendant acknowledged receipt of the same on 26.03.1976. The Hereditary Trustee issued another notice dated 21.12.1981 calling upon the defendant to vacate the suit lands by 31.03.1982 and also pay damages for use and occupation of the same but the defendant did not vacate the same.
5. It is further stated that the Hereditary Trustee played mischief with the lands of the plaintiff-deity, as such; he was removed for his illegal act of leasing out the suit schedule lands without confirmation of the public auction by the Endowments Department. Therefore, the defendant is in unauthorized occupation of the suit lands in collusion with the then Hereditary Trustee by resorting to breach of trust, fraud, misrepresentation etc. and the rent of Rs. 1,000/- per annum is very negligible when compared to the rates for similar lands in the locality. Therefore, the defendant has no right to occupy the suit lands and the plaintiff is entitled for recovery of possession. Accordingly, after giving notice, the suit has been filed for recovery of vacant possession of the suit schedule lands and to render a true and correct account of the mesne profits derived from the suit lands from 30.08.1975 till the delivery of possession along with 18% interest per annum.
6. A written statement has been filed by the defendant stating that the defendant was working as farm servant of the Hereditary Trustee (Nunna Appalacharyulu) about 35 or 40 years back when the Hereditary Trustee delivered two acres of wet land to him for cultivation and enjoyment towards the salary payable to him. Later his brother worked as a farm servant under the Hereditary Trustee and his brother was delivered possession of the same farm. Thus the said land was in possession of the defendant and his brother for 15 years prior to 1975. Prior to 1975, the 13 acres of suit land belonging to the Hereditary Trustee was leased out to the father of the defendant and prior to him to the grandfather of the defendant. Thus, the said 13 acres of the suit land was in possession and enjoyment of the defendant, his father and grandfather for more than sixty years and therefore, they have got every right as absolute owners to enjoy the suit land, which was leased out in his favour. It is stated that, thereafter in 1975, the Hereditary Trustee called the defendant and stated that he would lease out the suit lands to 13 persons including the defendant but wanted the defendant to collect a sum of Rs. 18,000/- from all the 13 persons and pay the same to him so that he would arrange the lease of the plaint schedule lands on yearly basis. Accordingly, all the 13 persons paid a sum of Rs. 18,000/- and the said Appalacharyulu leased out the suit lands to all the 13 persons on yearly rent of Rs. 1,000/-. The said lease amount was enhanced to Rs. 1,100/- per year thereafter to Rs. 1,200/- per year and the defendant had been collecting the amounts from the other 12 persons and paying the same to the said Appalacharyulu but in the name of the defendant alone. It is stated that the defendant is not an educated person but learnt only to sign in Telugu and at the same he cannot even write and read in Telugu, taking advantage of this fact the said Appalacharyulu obtained his signatures on many documents. Therefore, the allegation made in the plaint that the suit lands were leased out by way of public auction and the same was not confirmed, is incorrect. It is stated that 13 persons are in occupation of the suit lands. It is further stated that the defendant is not liable to pay any damages for use and occupation of the said lands and the plaintiff is also not entitled to any mesne profits. As the persons in possession of the plaint schedule lands are small farmers, they are entitled to purchase the said lands as per the provisions of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (for short 'the Tenancy Act') and they are ready to purchase the same. It is stated that the said lands are agricultural lands and the persons in occupation of the said lands are lessees and the schedule land is covered by the Tenancy Act, therefore, this suit is not maintainable and if the plaintiff is so advised the petition for eviction is to be filed before the proper authority as contemplated under the Tenancy Act and the Civil Court has no jurisdiction to entertain the suit and accordingly, prayed for dismissal of the suit.
7. On the said pleadings, the trial Court farmed the following issues:
1. Whether the defendant is a tenant in respect of the plaint schedule property?
2. If so whether this Court has jurisdiction to entertain this suit?
3. Whether the plaintiff is entitled for mesne profits?
4. To what relief?
8. The Hereditary Trustee was examined as P.W.1 and Exs.A1 to A28 were marked. Kola Narsimhulu - the defendant, examined himself as D.W.1 and Exs.B1 to 13 were marked.
9. Based on the oral and documentary evidence the learned District Judge held that there is no valid lease in favour of the defendant as contemplated under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short 'the Endowments Act') and the auction was not at all confirmed by the Endowments Department, therefore, the defendant cannot be treated as a tenant and there is no valid tenancy in favour of the defendant and the defendant got into possession of the suit lands unauthorizedly against the conditions of the auction notice. There is no evidence, which goes to show that the Endowments Department has received the lease amount towards Maktha and the correspondence between the Hereditary Trustee and the defendant was not recognized by the Department and therefore, the defendant is only an encroacher and only an occupant of the said property unauthorizedly but not an authorized tenant. Accordingly, the Court below held that the Civil Court has got jurisdiction to entertain the suit and decreed the suit with costs holding that the plaintiff is entitled to recover possession of the property not only from the defendant but also from the persons who were inducted into possession by the defendant and all those persons who are said to be in possession of the property as claimed by the defendant are also liable to be evicted. The Court further held that the future profits shall be determined on filing a separate application.
10. The finding of fact recorded by the Civil Court that the defendant is only an encroacher but not a cultivating tenant is not at all questioned in this appeal.
11. Learned Counsel for the appellant/defendant submits that though an issue has been framed by the Court below as to whether the defendant is tenant in respect of the plaint schedule property, the Civil Court cannot decide the said issue and the Tenancy Court alone is entitled to decided the said issue.
12. Though a ground has been raised in the grounds of appeal stating that the Court below failed to see that the defendant is a cultivating tenant as defined under the Tenancy Act and he cannot be evicted from the suit land by filing suit in the civil Court, the said question is not pressed in view of the abundant evidence available on record and also in view of the finding of fact recorded by the civil Court. It is only contended by the learned Counsel for the appellant/defendant that the civil Court has no jurisdiction to decide the issue as to whether the defendant is tenant or not, but the tenancy Court alone is entitled to decided the said question.
13. In support of the said contention he relied on a judgment of this Court in Alla Nageswara Rao v. Kalipindi Appala Narasamma . The facts of the said case are that the plaintiff purchased the tenancy rights from the tenants and seeking enforcement of the tenancy rights, a civil suit was filed for declaration that the plaintiff was a permanent tenant of the plaint schedule land directing the tenants to deliver possession of the same and for future mesne profits. There was no dispute in the said case with regard to the fact that the plaintiff was a tenant and stepped into the shoe of the original tenant. The civil Court, however, decreed the suit considering the issues as to whether the civil Court has got jurisdiction to entertain the suit and whether the plaintiff is entitled to seek declaration of permanent leasehold rights and interest in the suit schedule property, and held that the plaintiff purchased the permanent leasehold rights, as such, the plaintiff is entitled to the relief of possession in respect of the suit schedule property as prayed for and the civil Court has got jurisdiction to entertain the suit. Aggrieved by the said judgment, the defendants preferred an appeal before this Court. My learned Brother Honourable Sri Justice A. Gopal Reddy, while dealing with the first appeal after considering the various judgments held that the averments made in the plaint as well as the relief claimed clearly disclose that the plaintiffs claiming perpetual tenancy rights which they purchased under the transfer deeds and seek declaration that they will have permanent leasehold rights and interest over the plaint schedule lands and recovery of the same from successors-in-interest of landlords. Once the Act does not recognize the transfer of permanent tenancy rights possessed by any tenant and only such rights are heritable to the legitimate lineal descendants, whether plaintiffs, who are third parties, can be declared as tenants and can have any tenancy rights over the suit schedule property is a matter which has to be decided by the Tenancy Tribunal. Once the plaintiff asserts that she is a cultivating tenant acquires right of permanent tenancy and seeks a declaration to the said effect, such declaration, if any granted by the Special Tribunal but not by the Civil Court. The contention that the tenancy Court has no jurisdiction to restore possession and the Civil Court only has the jurisdiction to order restoration of possession is also negated holding that the landlord will have right for resumption under Section 12 of the Tenancy Act for his personal cultivation and can evict cultivating tenant by an application made to the Special Officer on any ground mentioned under Section 13 of the Tenancy Act. Therefore, in view of the admitted fact that the plaintiff was the purchaser from the cultivating tenant it was held that the civil Court has no jurisdiction.
14. In view of the fact that the tenancy Court alone is entitled to consider and dispose, any dispute arising under the Tenancy Act between a landlord and a cultivating tenant in relation to a matter has to be decided on an application by the landlord or the cultivating tenant by the Special Officer as the case may be after making an enquiry in the manner prescribed under Section 16 of the Tenancy Act.
15. Learned Counsel for the appellant further relied on the judgment of this Court in Vasi Krishna Murthy v. Sri Lakshmipathi Vari Devasthanam wherein it was held that prior to the amendment of Section 82 the Endowments Act by Act 27 of 2002 there was no bar for the tenancy Courts to entertain the suits in respect of the endowment properties and subsequently Section 18(f) was added to the Tenancy Act by Act 28 of 2002 the jurisdiction of the tenancy Courts will oust from the day of the Act but the prior proceedings initiated will be saved.
16. I am of the opinion that the said judgment has no application to the controversy involved in this case as to whether the civil Court has got jurisdiction in respect of endowment lands even prior to the amendment of Act 28 of 2002. By amended Act 28 of 2002 Section 18(f) of the Tenancy Act was introduced. As per Section 18(f) of the Tenancy Act the provisions of the Tenancy Act will not apply to any agricultural land belonging to or given or endowed for the purpose of any charitable or Hindu religious institutions or endowment as defined by the provisions of the Endowments Act. Thus, the Tenancy Act is not applicable in respect of the endowments after amendment of Act 28 of 2002.
17. The question that arises for consideration is as to whether the tenancy Court is entitled to decide the question as to whether a particular person is cultivating tenant or not. I am of the opinion that the tenancy Court is also entitled to decide the question as to whether a particular person is a cultivating tenant or not. But I am also of the opinion that if a suit has been filed by the endowments stating that the defendant is not at all a cultivating tenant and if the civil Court comes to the conclusion that the defendant is a cultivating tenant, then it cannot proceed further to decide the question and necessarily the civil Court has to dismiss the suit on the ground that the defendant is a cultivating tenant. Once the civil Court comes to the conclusion that the defendant is not a cultivating tenant, I am of the opinion that the civil Court has no bar to decide the issue.
18. However, to consider the said issue it is just and proper to consider the relevant provisions of the Tenancy Act.
19. Under Section 2(d) of the Tenancy Act cultivating tenant means a person who cultivates by his own labour or by that of any other members of his family or by hired labour under his supervision and control, any land belonging to another under a tenancy agreement, express or implied, but does not include a mere intermediary;
20. Under Section 2(f) landlord means the owner of a holding or part thereof who is entitled to evict the cultivating tenant from such holding or part, and includes the heirs, assignees, legal representatives of such owner or person deriving rights through him.
21. Under Section 2(j) Special Officer means any judicial officer not below the rank of a District Munsif appointed by the Government in consultation with the High Court, to perform the functions of a Special Officer under the Act.
22. Section 3 deals with the maximum rent payable by the cultivating tenants. Section 4 deals with the agreement regarding form of tenancy etc. Section 5 deals with the agreement as to the rent. Section 6 deals with the determination of fair rent. Section 10 deals with the rights of the cultivating tenants. Section 12 deals with resumption of possession of land leased by landlord for his personal cultivation. Section 13 deals with the termination of the tenancy.
23. In respect of any dispute under the Tenancy Act between a landlord and a cultivating tenant in relation to a matter shall be decided by the Special Officer under the provisions of the Tenancy Act shall on an application by the landlord or the cultivating tenant shall be decided by a Special Officer. Therefore, the nature of the dispute is important. The nature of the dispute here is not with regard to the determination of formation of tenancy, agreement as to the rent, determination of fair rent, resumption of rent or interest or arrears of rent or decide the rights of cultivating tenant or decide the ownership of the land or resumption or possession of the lands leased out by the landlord or termination of tenancy, all those disputes have to be adjudicated under Section 16 of the Tenancy Act. Here is the question that the defendant is not at all a tenant as contemplated under the Tenancy Act.
24. On the other hand, it is the case of the respondent/plaintiff that, in fact, pursuant to the auction conducted, the auction was not at all confirmed and it was specifically stated in the public auction that unless the higher authorities of the Endowments Department confirm the auction and an agreement is executed, the possession couldn't be delivered. There was no confirmation of the said auction and in fact, the Commissioner and the Assistant Commissioner of the Endowments Department directed the Hereditary Trustee to cancel the auction conducted. But contrary to the said directions the then Hereditary Trustee without any justification whatsoever executed a lease of KADAPA, which is not at all valid in the eye of law and therefore, it cannot be said that the tenant is a cultivating tenant. Once the tenant is not a cultivating tenant there would not be any legal impediment to the civil Court to entertain the suit filed for recovery of possession of the agricultural land, which is in unauthorized possession of the defendant.
25. No doubt, under the Endowments Act there is a manner and mechanism to evict the encroachers and unauthorized occupants. But under Section 83 of the Endowments Act the proceedings are only summary in nature. Under Section 151 of the Endowments Act no suit or other legal proceeding in respect of the administration or management or an institution or endowment or any other matters of dispute for determining or deciding for which provision is made in this Act shall be instituted in any Court of Law except under and in conformity with the provisions of the Act.
26. Learned Counsel for the appellant submits that the suit filed by the respondent/plaintiff is for recovery of possession for which a remedy is available under Section 83 of the Endowments Act but there is no remedy available under the Endowments Act for recovery of mesne profits. Therefore, the authorities under Section 83 of the Endowments Act cannot decide or determine the issue relating to mesne profits and a Civil Court alone is competent to determine the mesne profits.
27. With regard to a similar controversy as to whether the Civil Court or the Tenancy Court has the jurisdiction to entertain the suit and with regard to the relationship between the landlord and the tenant the Supreme Court in Magiti Sasamal v. Pandab Bissoi held that in a suit filed by the plaintiff against defendants if the issue about the status of the defendants is framed, it had to be tried by the civil Court. In such a suit if the civil Court holds that the relationship between the landlord and the tenant had not been established it may proceed to deal with the suit on the merits.
28. If, however, it holds that the said relationship is established then the civil Court cannot deal with the dispute between the parties if it falls within any one of the categories specified by Section 7(1) of Orissa Tenants Protection Act, which is similar to Section 16 of the Andhra Pradesh (Andhra Area) Tenancy Act.
29. Therefore, I am of the opinion that had the civil Court decided the issue stating that the defendant was a cultivating tenant it could not have proceeded further but as it held that the defendant was not at all a cultivating tenant; that he was in unauthorized occupation and there is no relationship of a landlord and a tenant between, it cannot be said that the civil Court has no jurisdiction to entertain the suit.
30. I am also of the opinion that the aforesaid judgment of the Apex Court lends clear support to the contention of the learned Counsel for the respondent/plaintiff and in fact, the full Bench of this Court in D. Venkata Reddy v. B. Bhushireddy with regard to the question as to whether the dispute regarding the relationship of landlord and tenant is included within Section 16(1) of the Tenancy Act so as to give exclusive jurisdiction to the Special Officer held that even if the dispute which the Special Officer has jurisdiction to decide under Section 16(1) of the Tenancy Act is a dispute arising under the Act it must be between a landlord and a cultivating tenant but the Special Officer has no jurisdiction to decide a dispute which is not between a landlord and a cultivating tenant. The Special Officer has been given jurisdiction to decide questions relating to the determination of fair rent or the eviction of a cultivating tenant etc., only if such questions arise between a landlord and a cultivating tenant.
31. In view of the aforesaid authoritative judgments of this Court including the Full Bench judgment of this Court and the judgment of the Supreme Court, I am of the opinion that absolutely there are no merits in the legal contentions advanced by the learned Counsel for the appellant/defendant. I am also of the opinion that the civil Court rightly entertained the suit and decreed the same ordering recovery of possession and for future mesne profits. Therefore, I do not see any merits to interfere with the judgment impugned.
32. The appeal suit is accordingly dismissed. There shall be no order as to costs.