Andhra HC (Pre-Telangana)
Polisetti Venkata Subbaiah vs Karre Venkata Prasad And Ors. on 26 September, 1997
Equivalent citations: 1998(1)ALT79, 1998 A I H C 1832, (1997) 2 LS 648, (1997) 6 ANDHLD 756, (1998) 1 ANDH LT 79, (1997) 3 APLJ 401
JUDGMENT D.H. Nasir, J.
1. The question which arises for our consideration in this Civil Revision Petition is whether voluntary surrender of the land under occupation of a tenant is binding upon the tenant or whether he could resile from the same.
2. The present Revision Petition is filed against the concurrent judgment of the learned District Judge, West Godavari at Eluru in A.T.A.No. 112 of 1985 dated 4-10-1991, which was decided against the tenant and in favour of the landlord.
3. By an order dated 28-11-1985 in A.T.C.No. 13 of 1980, passed by the Special Officer-cum-Principal District Munsif, Narsapur, the tenant's appeal under Section 16(1) of the A.P.(Andhra Area) Tenancy Act, 1956 (for short 'the Act') for declaration of his tenancy rights and for permanent injunction against the respondents, was dismissed.
4. The short facts are that the petitioner-tenant was a cultivating tenant in respect of Ac.3-75 cents of the land covered by R.S. Nos. 458/2 and 457 situated in Kopparru village belonging to the 1st and 2nd respondents. Originally the petitioner's father was cultivating the land and after his death the petitioner-tenant continued to cultivate the land on yearly maktha of bags of paddy for sarva and at the rate of 4 bags of paddy per acre for dalva. The property belonged to one late Janapamula Rattamma, the mother of the 1st respondent. Respondents 1 to 3 were indulging in acts of waste in respect of the petition schedule lands and they were threatening the petitioner that they would not allow him to take the crop and on 1-10-1980, the respondents committed trespass into the petitioner's lands. When petitioner obstructed them, they quarrelled with him and threatened that they would take away the crop itself. Out of fear the petitioner kept quiet and hence the petition for declaration of the petitioner's right and injunction.
5. In the counter filed by the respondents, it was not disputed that the petitioner's father used to cultivate the schedule lands as a tenant and after his death, the petitioner and his brother-Krishna Murthy used to cultivate the land in equal shares. The petitioner's brother died about two years back and after his death, his son-in-law Mopidevi Nageswara Rao of Kopparru village used to cultivate half the share as tenant. Krishna Murthy had no male issues. The petitioner and his brother used to pay 8 bags of paddy for sarva per acre and 4 bags of paddy for dalva per acre. They are alleged to have committed default in payment of rents, The disputes between the land-lords and the tenant were settled with the help of mediators, According to the settlement, the petitioner and M. Nageswara Rao were supposed to vacate the schedule land and deliver possession of the same to the respondents. Accordingly, the respondents took possession of the same in May, 1980 in the presence of the mediators and the respondents in turn gave up the arrears of maktha due by the tenant.
6. Thereafter, the respondents raised seed beds in the schedule lands during 1980-81 with the help of her husband by spending huge amounts. The crop in the land was ripe for cutting. However, owing to flood, the land was completely submerged and the standing crop could not be cut and removed. 7. In this background of facts the lower appellate Court raised two points for determination whether the surrender pleaded by the respondents is true and valid and whether the petitioner is entitled to protection under Act 39 of 1974 which came into force on 1-7-1980.
8. While appreciating the oral evidence, the lower appellate Court observed that it could not be said that R.Ws.2,3 and 4 were set-up by the respondents. The 1st respondent's case that he was cultivating his father-in-law's share and was paying maktha and that he fell in arrears of maktha stood corroborated from the oral testimony of R.Ws.l and 2 and, therefore, the petitioner's case that he was in possession of the entire land could not be accepted as true. According to the learned Judge, he was in possession of half of the land which was proved beyond doubt by the oral testimony of R.Ws.l to 4. The learned Judge disbelieved the petitioner's case that he raised sarva crop in the land and that the mediation set up by the respondents was not proved. However, no evidence was adduced in support of the petitioner's contention that he was cultivating the entire land and that he was in possession of the same till the date of filing the petition. The neighbouring ryots were not examined by the petitioner to prove his possession. There was also no evidence to show that the petitioner made any attempt to deposit the maktha payable by him to the 1st respondent atleast during 1980-81. Moreover P.W.1 admitted in his cross-examination that he was cultivating the eastern portion of the schedule lands and that the respondents were cultivating the western portion of the lands, as against his specific case that he was cultivating the entire land. The appellate Court further observed that it was quite evident from the evidence adduced by the respondents that the petitioner was out of possession on the date of filing the petition.
9. The important question relating to surrender is thereafter discussed by the learned Judge of the lower appellate Court. The petitioner totally denied the allegation that he surrendered the schedule land to the respondents. The learned Judge further took into consideration Exs.A-l to A-9 covering the period upto 1977, and observed that the petitioner was admittedly in possession of the land up to May, 1980 and, therefore, these documents did not render any assistance to the petitioner to prove his case.
10. Realising fully well that the petitioner's case cannot stand the test of oral and documentary evidence, the learned Counsel for the petitioner concentrated his entire submissions on a proposition that voluntary surrender, even if believed, was not binding upon the tenant and, therefore, his ouster from the suit land was illegal and the land was required to be restored to the possession of the petitioner.
11. Section 14 of the Act provides as under:
"14. Surrender of holding by cultivating tenant- (1) A cultivating tenant may terminate the tenancy and surrender his holding at the end of any agricultural year during the currency of a lease by giving not less than three months' notice in writing expiring with the end of such year to the landlord.
(2) No tenant shall surrender a part of his holding only." According to the learned Counsel for the petitioner, it was necessary to give three months' notice in writing if the cultivating tenant himself wanted to terminate the tenancy and surrender his holding at the end of any agricultural year during the currency of the lease. Since no such notice was served upon the landlords, which was not disputed, the tenancy could not be treated as having come to an end. In my opinion, this requirement of three months' notice was not for the purpose of protecting the interest of the tenants, but it was meant for protecting the interest of the landlords, inasmuch as, the landlords would be facilitated in arranging for leasing the land to another interested party or may make arrangement for himself to carry on the cultivating activity during the notice period of three months. If the landlord waives or does not insist upon three months' notice as contemplated by Section 14 of the Act, the tenant's interest did not stand jeopardised in any manner and no prejudice was caused to the tenant in any manner. Non-compliance of the requirement of notice, therefore, is not a factor which could go to the rescue of the tenant.
12. In support of the contention that the alleged surrender was not a surrender' in the eye of law, the learned Counsel for the petitioner sought assistance from the decision of this High Court in the case of A, Padmavathamma v. T. Narasimham, 1971 (1) An.W.R. 105. In paragraph 5 of this decision it is observed that no period was prescribed for leases and all leases entered into after the commencement of the Act would continue to be in force till the Legislature provides otherwise. Section 13 deals with the termination of tenancy and the landlord would be entitled to terminate the tenancy of a cultivating tenant and evict him only in accordance with the provisions of Clauses (a) to (f) of Section 13. Section 14 enables a cultivating tenant to terminate his tenancy by surrendering his holding at the end of any agricultural year after giving not less than three months' notice as provided therein. Section 17 of the Act lays down that "the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any pre-existing law, custom, usage, agreement or decree or order of a Court."
13. After narrating the provisions of the Act, Obul Reddi, J., expressed an opinion in para 6 that:
".............Sections 13 and 14 in a way operate as provisos to Section 10 of the Act. While sub-section (2) of Section 10 enables a cultivating tenant to be in possession of the land taken on lease until the Legislature of the State, by law, otherwise provides, Sections 13 and 14 provide for bringing about termination of tenancy even before the Legislature by law otherwise provides. Therefore, it is clear that unless the landlord is able to make out a case for termination of tenancy under Section 13 of the Act, the cultivating tenant cannot be evicted. An execution petition was filed for termination of the tenancy and eviction of the tenant not on anyone of the grounds specified in Clauses (a) to (f) of Section 13 or for the reason that the tenant had surrendered possession of the land under Section 14 but on the ground that there was a compromise between the tenant and the landlord which was recorded by the Tahsildar; and therefore by virtue of the decree made by the Tahsildar in terms of the compromise arrived at by the parties, the petitioner is entitled to file an execution petition for eviction of the tenants. What Rule 13 says is that every decision or order of the Tahsildar or the Revenue Divisional Officer under the Act shall be executed by an Officer of the Revenue Department not lower in rank than a Revenue Inspector."
The question, therefore, is as observed by the learned Judge, when there is no termination of tenancy under Sections 13 and 14 of the Act, whether the order of the Tahsildar made on the strength of the compromise memo filed by the parties can be said to be an 'order' or 'decision' under the provisions of the Act so as to entitle the petitioner to seek execution of the order made on compromise. The learned Judge further observed that he was of the view that the tenancy of a cultivating tenant cannot be brought to an end in view of what is stated in Section 10 except in accordance with the provisions of Sections 13 and 14,
14. In para 12 of the said decision, the decision of the Supreme Court in Ferozi Lal Jain v. Man Mal and Anr., is referred to which deals with the similar provision i.e., Section 13 of the Delhi and Ajmer Rent Control Act, in which it was held that:
"The jurisdiction of the Court to pass a decree for recovery of possession, of any premises depends upon its satisfaction that one or more of the grounds mentioned in Section 13(1) have been proved. Where the Court had proceeded solely on the basis of the compromise arrived at between the parties, the Court was not competent to pass the decree. Hence the decree under execution must be held to be a nullity."
15. In the case before us, no doubt, it is based on a compromise, but slightly in a different manner that instead of Tahsildar recording the compromise between the tenant and the landlords, the settlement has taken place by the intervention of the mediators and in whose presence, according to the terms of the settlement, the possession of the land in question was made over to the landlords by the tenant because the tenant had fallen in arrears of maktha. Moreover, the mediators in our case were examined as witnesses (R.Ws.3 and 4) who unmistakably stated that after the death of the petitioner's brother, R. W-2 was cultivating half the share in the petition schedule land. R.W-2 was none other than the petitioner's brother's son-in-law. The learned Judge of the appellate Court observed that R.Ws.3 and 4 were independent witnesses and that the petitioner's contention that he was in possession of the entire land could not be accepted as true in view of the fact that the claim advanced by R.W.2 that he was cultivating his father-in-law's share and was paying maktha and that he fell in arrears of maktha stood asserted from the oral testimony of the mediators. The learned judge of the appellate Court, therefore, observed that the petitioner was in possession of half of the land and that this fact was proved beyond doubt through the evidence of R.Ws.l to 4. The case before us, therefore, stands on a different footing than the case as could be seen from {1 supra). In the instant case, when we are confronted with two concurrent decisions for the lower Courts, it would not be in order in C.R.P. to disagree with the appreciation of oral testimony of witnesses examined by the trial Court unless it was pointed out and showed to the Court that appreciation of evidence suffered from any patent illegality or that the observations made by the lower Courts were tainted with any mala fide consideration.
16. In the case of Vallabbhai v. Bai Jivi, the Supreme Court held that a surrender by a tenant could only be valid and binding on him if it was in writing and was verified by the Mamlatdar, whose duty is to ascertain whether the surrender was voluntary and was not under pressure or undue influence of the landlord. But once the surrender satisfies these two conditions it has the same effect as the termination of tenancy; and the landlord becomes entitled to retain the land of which possession was delivered to him by the tenant. In cases, however, where the surrender has not satisfied the two conditions, even if it is voluntary, it is no surrender and therefore there is no termination of relationship of landlord and a tenant and the tenancy still continues and the tenant is entitled to retain possession and therefore to its restoration, 'though Section 15 does not in so many words provide it.
17. in the above case, the Supreme Court was confronted with a situation in which respondent No. l was the owner of survey Nos. 974/2 and 975/4 situate in the village Delol in district Panchamahals and the appellant at the material time was the tenant thereof. On May 15,1956 the appellant voluntarily handed over possession of the said lands to respondent No. l. It was, however, an admitted fact that the said surrender was not in writing and the procedure of inquiry and verification required by Section 15 of the Bombay Tenancy and Agricultural Lands Act, 57 of 1948 was not gone through. The Supreme Court, therefore, observed that the surrender though voluntary was not in accordance with Section 15 and therefore was not valid and binding on the appellant.
18. In the case before this Court, it is not contended on behalf of the respondents that there was any provision in the Tenancy Act 1956 which made it obligatory that the surrender should be in writing and that there was any procedure of enquiry and verification to be gone through before surrender takes place. The only requirement as far as Tenancy Act 1956 is concerned is to give three months' notice in writing expiring with the end of such year to the landlord. This requirement, however, if not followed, as already observed by us earlier, was not likely to cause any prejudice to the tenant. It was meant for protecting the interest of the landlord and, therefore, no ill- effect would be produced if three months' notice in writing is not served upon the landlord and the landlord does not take any objection to surrender without fulfilling the requirement of the notice being served upon him. In the absence of any requirement, as provided under Section 15 of the Bombay Tenancy and Agricultural Lands Act, which was the main consideration before the Supreme Court in Vallabhai's case (3 supra), the act of surrender which took place in the case before us in the presence of mediators cannot be called in question, particularly, when the mediators have also been examined as witnesses and the oral testimony rendered by them did not suffer any set back, in cross-examination.
19. A Division Bench of this High Court in the case of Srinivasa Sastry v. Appayya, 1964 (1) An.W.R. 37 held that it was plain from the definition of 'cultivating tenant' in Section 2(c) of the Andhra Tenancy Act, that it was not only in the case of an express tenancy agreement but also in the case of an implied tenancy agreement that a person could be described as a cultivating tenant. There was no warrant for reading the expression "tenancy agreement implied" only in relation to Section 10(2) of the Act. The Division Bench observed that obviously the implied tenancies comprehended tenancies like those of holding over. If a tenant holding over or tenants similarly situated could get the benefit of the Act, there was no reason why a lessee for a period of one year and in possession of the lands should be deprived of the benefits of the Act. The Bench further observed that a person was a cultivating tenant notwithstanding that the minimum period of his lease was less than six years. The intention of the Legislature appeared to be that no lease should be for a period less than six years. If it was for a period less than six years, it could not enure to his benefit. Section 10 was inserted for the benefit of the tenant so that he could have security of tenure, i.e., he could be in possession of the land as a tenant atleast for a period of six years and it was chiefly conceived in the interest of the tenant. That being so, the landlord could not take advantage of the fact that he had given a lease of the land for less than six years.
20. In my opinion, the entire emphasis in the above ruling is on the proposition that the period of tenancy should not be less than six years and the landlord could not take advantage of the fact that he had given a lease of the land for less than six years. In our case, the tenure was much longer than six years and the duration of tenancy has not fallen for the consideration of the Court in the present case. We are mainly concerned with an argument advanced on behalf of the tenant that the alleged surrender of tenancy was not a surrender in the eye of law. We have, however, dealt with the same quite elaborately hereinbefore and we need not repeat how that proposition does not turn out to be in favour of the tenant.
21. Regarding the maintainability of this C.R.P., also the Division Bench of this High Court held in M. Ammannaraju v. B. Seetaratnam, that prior to the amendment of the A.P.(A.A.) Tenancy Act, 1956, the tenancy Courts presided over by the Tahsildars and the Revenue Divisional Officers were not considered as Courts, but were considered only as Tribunals. By virtue of the amendment to the above Act, brought under Act No. 39 of 1974, the expressions 'Tahsildars' and 'Revenue Divisional Officers' were substituted by the words 'Special Officers' and 'District Judges', and the Government in exercise of the powers conferred under the Act, by a notification, appointed the District Munsifs as Special Officers under the Act, and the District Judges as the appellate authority. Therefore, except the change brought in by the Legislature by replacing the Judicial Officers in the place of revenue personnel through the Amendment Act No. 39 of 1974, there was no other change in the Act with regard to the applicability, scope or the nature of the Act and, therefore, the position as was prevailing prior to the amendment that the tenancy Courts presided over by the Revenue Personnel were not the Civil Courts still continued even after the Amendment Act came into force. The Division Bench further observed that there was no provision in the A.P. (Andhra Area) Tenancy Act to the effect that the Special Officers or the District Judges appointed under the said Tenancy Act, were subordinates to the High Court. Moreover, Section 16(2) clearly laid down that the order passed by the appellate authority in appeal shall become final. So the intention of the Statute was clear from the above provision that the dispute must come to an end in the appellate stage itself. It is further observed that a perusal of the provisions of the Tenancy Act made it abundantly clear that the Act was silent and did not confer any re visional jurisdiction to the High Court over the orders passed by the Special Officers and the appellate authorities, functioning under the Act. Section 17 (sic. 16) of the Tenancy Act made it clear that the Act intended to give finality to the decisions passed by the appellate authority then and there itself and so the invocation of the provisions of the C.P.C. and filing of a revision petition under Section 115 C.P.C. did not arise,
22. For the above reasons if it is accepted that the C.R.P. is not maintainable, no contradictory effect is likely to be produced, because even on merits we have not found the petitioner's case tenable at law.
23. For all the above reasons, therefore, I do not feel inclined to interfere with the concurrent judgments of the two Courts below and I do not find any case to interfere with the same in this Revision Petition where the scope for examining the rights claimed by the tenant was quite limited. Hence, the Civil Revision Petition is dismissed. No costs.