Andhra HC (Pre-Telangana)
Madala Venkaiah (Died) By Lrs. vs K. Krishna Murthy And Ors. on 5 November, 2003
Equivalent citations: 2004(4)ALD160, 2004 A I H C 833, (2004) 4 ANDHLD 160, (2004) 1 ANDHWR 582, (2004) 2 RENTLR 33
ORDER P.S. Narayana, J.
1. The legal representatives of the unsuccessful tenant in both the Tribunals below had preferred the civil revision petition under Article 227 of the Constitution of India. The Respondents 1 to 4 herein filed ATC No. 16 of 1993 on the file of Special Officer, Tenancy Tribunal- cum-II Additional Munsif Magistrate, Ongole, under Section 13(a) of the A.P. (A.A) Tenancy Act, 1956 (hereinafter referred to as Act in short) praying for eviction of the tenant from the petition schedule land. On the respective pleadings of the parties, the Tenancy Tribunal after recording the evidence of P.W.1 and P.W.2 and R.W.1 and R.W.2 and also marking Exs.A-1 and A-2 and Exs.B-1 to B-8, had ultimately arrived at a conclusion that there is no evidence that the petitioners in the said ATC required the land for personal cultivation and though there is a pleading, there is no evidence and hence, the said ground was not considered. But, however, the said Tribunal had recorded a finding that the respondent in the said ATC-Tenant had committed default for the year 1979-80 and had ordered eviction. Aggrieved by the same, the tenant filed ATA No. 15 of 1997 on the file of the District Judge, Ongole- Appellate Tribunal and during the pendency of the said ATA No. 15 of 1997, the tenant died and the Appellants 2 to 4 were added as the Legal Representatives of the deceased-1st appellant-tenant as per orders in LA. No. 482 of 2000 dated 2-11-2001. The learned District Judge-Appellate Tribunal also had confirmed the order of the Primary Tribunal by dismissing the appeal and aggrieved by the same the legal representatives of the deceased-tenant had preferred the present civil revision petition.
2. Sri O. Manohar Reddy, the learned Counsel representing the revision petitioners, had submitted that as far as default relating to the year 1979-1980 is concerned, both the Tribunals below had recorded concurrent findings. But, however, the very fact that Respondents 1 to 4 herein had approached the Special Officer-Tenancy Tribunal after a long lapse of time would go to show that the stand taken by them relating to the default for the year 1979-80 cannot be believed at all. The learned Counsel also had further explained the conduct of the parties subsequent to the year 1979-1980. The learned Counsel also had drawn my attention to the findings recorded both by the Primary Tribunal and the Appellate Tribunal and had commented that the approach adopted by both the Tribunals is definitely erroneous. The Counsel also maintains that when there were no arrears at all as on the date of filing of the eviction petition, the said petition itself is not maintainable under Section 13 of the Act. The learned Counsel incidentally had drawn the attention of this Court to Section 12 of the Act relating to personal cultivation. The learned Counsel also had drawn the attention of this Court to the relevant paras in A. Abbayi v. R. Choultry, and also Vinukonda Venkata Ramana and Ors. v. Mootha Venkateswara Rao and Ors., .
3. Per contra, Sri Raja Sekhar, the learned Counsel representing Respondents 1 to 4, had drawn the attention of this Court to the relevant findings recorded by both the Tribunals and inasmuch as concurrent finding had been recorded relating to the default for the year 1979-80, the same cannot be disturbed, since it being a finding of fact. The learned Counsel further submitted that the plea of waiver was never raised at all and in fact the pleading is totally different from proof and the burden of proof cast on the tenant, had not been discharged by the tenant at all and hence, the Tribunals below had arrived at the correct conclusion in ordering eviction of the tenants. The Counsel also -would maintain that the mere fact that the Respondents 1 to 4 had approached the Tenancy Tribunal after some lapse of time that by itself cannot be a ground to negative the relief. Even, otherwise, the bar of time to recover rent is something different and the question of limitation would not be operative for the purpose of initiating action for eviction under the provisions of the Act.
4. Heard both the Counsel and perused the findings recorded both by the Primary Tribunal in the ATC and the Appellate Tribunal in the ATA referred to supra.
5. The Respondents 1 to 4 as petitioners filed ATC No. 16 of 1993 pleading as follows:
"The petitioners are the owners of the petition schedule land consisting an extent of Ac.1.74 cents in S.No. 76/1, Pamamitta Village. The land is capable of raising all crops including commercial crops like virgina tobacco etc. All the petitioners constitute joint family. The respondent took the petition schedule land in the year 1971 agreeing to pay makta at the rate of Rs. 200/-, in case crops other than the virgina tobacco is raised and Rs. 260/- in case virgina tobacco is raised. The respondent agreed to pay makta by the end of Magha Bahula Amavasya of each year and he took possession of the land and started cultivating the same. As per the terms of the lease agreement the respondent was paying amounts to the 1st petitioner and was obtaining receipts as he being the senior member of the family. The respondent paid makta amount till 1978 and committed default for the years 1979-80 and 1980-81. The 1st petitioner demanded the respondent, but the respondent did not make any payment. While so, the 1st petitioner received Money Order of Rs. 200/- on 9-5-1981 towards two years makta due from the respondent under protest and without prejudice to the rights against him. In fact, the respondent has to pay Rs. 400/- within the stipulated period as agreed. There upon the petitioners sent a lawyer notice on 9-5-1981 demanding the respondent to pay the arrears of makta and also to vacate the schedule land. The respondents neither pay the arrears of makta nor vacate the land. Subsequently, the respondent sent an amount of Rs. 200/-towards the makta by Money Order. The 1st petitioner demanded the respondent before elders to deliver the possession of schedule land for personal cultivation and to pay the arrears of makta to them. The respondent is postponing the same while continuing his possession over the land. Subsequently, the 1st petitioner demanded the respondent to deliver the land to them for personal cultivation and that the respondent agreed to vacate the land after the removal of tobacco crop. The petitioners believed the words of respondent and waited for the amicable settlement. The respondent neither surrendered the schedule land or paid the arrears of makta from the year 1979,. and that the present petition is filed for eviction of the respondent from the petition schedule land."
6. Respondent in ATC No. 16 of 1993-Tenant had admitted that the petitioners therein are the landlords and he is the tenant of the petition schedule property. The respondent therein-tenant further pleaded that:
"He has been regularly paying makthas to the petitioners and he did not commit default in any one of the years and he has been paying rents in time regularly and is obtaining receipts. While so, as the 1st petitioner refused to receive makta due for the year 1980-81, he was compelled to send the same by Money Order on 30-4-1981, which was returned to him as 'refused'. Ever since, he has been sending maktas by Money Order at the rate of Rs. 200/- per year and the same are being returned to him as refused. With the object of getting him evicted from the petition schedule land, the petitioner refused to receive the maktas. Thus, he never committed default either for the year 1979-80 or for the year 1980-81. The makta due for the year 1979-80 was received by the petitioner in advance for payment of house tax to Ongole Municipality. The petitioners have demanding him to vacate the petition schedule land on the ground of selling away the same to others, to which he did not agree and as such the petitioners filed the petition with false allegations. Since 1978, he is not raising tobacco, as the land is not suitable for tobacco cultivation and that he never agreed to surrender the petition schedule land to the petitioners and that there are no grounds to evict him from the land."
7. For the purpose of convenience, hereinafter the parties are referred to as landlords and tenant.
8. It is needless to say that the legal representatives of the tenant, who died pending the appeal, are at present prosecuting the litigation. On behalf of the landlords 4th petitioner was examined as P.W.1 and Ex.A-1-the M.O. receipt, dated 30-4-1981, and Ex.A.2-the Lawyer's notice, dated 9-5-1981, were marked. On behalf of the tenant he had examined himself as R.W.1 and Exs.B-1 to B.8 were marked. Ex.B-1 is M.O. receipt for the year 1979-80. Ex.B-2 is M.O. receipt, dated 30-4-1981, for the year 1980-81. Ex.B-3 is M.O. coupon, dated 9-5-1981. Ex.B-4 is receipt, dated 31-3-1992. Ex.B-5 is receipt M.O. coupon, dated 7-4-1992. Ex.B-6 is receipt, dated 26-3-1993. Ex.B-7 is M.O. receipt, dated 19-4-1993. Ex.B-8 is returned Money Order coupon. Apart from this, R.W.2 also was examined.
The Primary Tribunal had discussed the oral and documentary evidence in detail and had ultimately disbelieved the stand taken by the tenant and had ordered eviction. In fact, the Primary Tribunal had stated as hereunder:
"When the petitioners were receiving makta what prompted the respondent to pay makta for the year 1979-80 by way of Money Order. The evidence is inconsistent with the pleading. It is not at all the evidence of R.W.1 that, he paid makta for the year 1979-80 in advance at the request of the 1st petitioner. Even for the purpose of argument, according to respondent Ex.B.1 is Money Order receipt for the year 1979-80, which was sent in 1980. The acknowledgment for receipt of money was not filed, showing that, the petitioners received the said amount. It is the evidence of R.W. 1 that he is unable to say whether he received the acknowledgment for the said Money Order or not. At a later stage R.W. 1 has stated that, the said acknowledgment was lost. Now the respondent is relying upon Ex.B-1-M.O. receipt for the year 1980 in order to come to a conclusion that. Money Order was sent on 2-3-1980. In the absence of the year we cannot come to a conclusion that Ex.B-1 receipt is dated 2-3-1980. If really the respondent has sent Money Order of Rs. 194/-towards makta for the year 1979-80 in the year 1980 he would have examined some postal authorities or file some documents from the postal department to prove his case. Except the oral evidence of R.W.1, there is no other evidence. Without year on Ex.B-1, I cannot come to a conclusion that, the said Money Order was sent in the year 1980. Further, the pleading and the evidence are quite contrary so far as the makta for the year 1979-80 is concerned. Once the respondent pleaded that he paid makta for the year 1979-80 the burden is on him to prove the same. It is the case of the petitioners that, the respondent sent makta of Rs. 200/-for the year 1981 without paying the makta for the year 1979-80 and so immediately he got issued Ex.A-2 notice and that the respondent did not issue any reply. It is not at all the case of the respondent that he did not receive Ex.A-2 notice or he sent reply for Ex.A-2. Ex.A-2 notice was issued almost immediate to the receipt of Ex.A-1 and Ex.B-3 Money Order. If the respondent has paid the makta for the year 1979-80, he should have definitely issued a reply stating that he paid the said amount in advance for payment of house tax to the 1st petitioner or he paid, the said amount by way of Money Order on 2-3-1980. The silence on the part of the respondent infers that, he committed default for the year 1979-80. The respondent failed to discharge his burden. Thus the evidence of R.W.1 coupled with his pleading and Ex.B-1 clearly shows that, the respondent did not pay makta for the year 1979-80."
9. The oral and documentary evidence was considered in detail and the subsequent documents Exs.B-3 to B-8 were held to be of no consequence, since they do not throw any light for deciding the question in controversy. The learned District Judge, Ongole-the Appellate Tribunal in ATA No. 15 of 1997 also had stated as hereunder:
"According to R.W.1 he has sent the Money Order under Ex.B-1 on 2-3-1980. But there is no acknowledgment of the said Money Order by the petitioners. Moreover, the petitioners have sent a legal notice on 9-5-1981 to the respondent/1st appellant that they have not received the maktha for the years 1978-79, 1979-80 and 1980-81 and they have received Rs. 200/- by Money Order long after due date even though he has to pay Rs. 400/- for two years at the rate of Rs. 200/- per year and they have received only Rs. 200/- and demanded for eviction of the respondent from the petition scheule property. Admittedly, no reply was given by the respondent to the said legal notice Ex.A-2. If really, the respondent has paid maktha for the year 1979-80 by Money Order on 2-3-1980, he would have sent a reply to the petitioners stating the said fact. The said fact of sending the maktha for the year 1979-80 by Money Order was not pleaded in his counter also. Therefore, the pleading of the respondent with regard to payment of maktha for the year 1979-80 is quite contrary to the evidence produced by him."
10. As can be seen from the findings recorded by both the Tribunals below, the defence taken by the tenant was disbelieved and eviction was ordered. It is no doubt true that the landlords had approached the Primary Tribunal for eviction after sufficient lapse of time, but that itself cannot be a ground to negative the relief of eviction.
11. Section 13 of the Act deals with termination of tenancy and Section 13(a) of the said Act reads as hereunder:
"13. Notwithstanding anything contained in Sections 10, 11 and 12 no landlord shall be entitled to terminate the tenancy and evict his cultivating tenant except by an application made in that behalf to the (Special Officer) and unless such cultivating tenant--
(a) has failed to pay the rent due by him within a period of one month from the date stipulated in the lease deed, or in the absence of such stipulation, within a period of one month from the date on which the rent is due according to the usage of the locality; and in case the rent is payable in the form of a share in the produce, has failed to deliver the produce at the time of harvest..."
12. The words employed in Section 13(a) are "has failed to pay the rent due by him within a period of one month from the date stipulated in the lease deed". The provision further reads "in the absence of such stipulation, within a period of one month from the date on which the rent is due according to the usage of the locality".
13. The bar or the question of limitation for recovery of rent under the General Law of Limitation cannot be the test for ordering eviction under the aforesaid provision provided, otherwise the conditions specified therein are satisfied. Hence, I am not inclined to accept the contention that since the ground of default for the year 1979-80 is made, the ground for eviction in the ATC, filed in the year 1993, eviction cannot be ordered.
14. Strong reliance was placed on the decision of a Full Bench in A. Abbayi v. R. Choultry, , wherein it was held:
"Though Section 13 of the Act is mandatory in the sense that the landlord cannot determine the tenancy of evict the tenant except firstly by filing application to the Tahsildar and secondly only on the basis of one or more of the grounds enumerated in the section, this mandatory character of the provision does not take away from the landlord the right to receive the rent after the default is committed and thus continue the tenancy. He is not compelled on every default to determine the tenancy and seek eviction according to Section 13, nothing prevents him from withdrawing the application or abandoning his claim and thus continue the tenancy. Likewise, the tenant's right to plead waiver is not taken away by any provision of the Act."
15. Reliance was also placed on Vinukonda Venkata Ramana and Ors. v. Mootha Venkateswara Rao and Ors., . A Full Bench of this Court in this case was dealing with the question whether the eviction petition would lie if arrears of rent due are paid before filing petition and accepted by landlord under A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, on the ground of wilful default specified under the said Act.
16. In the light of the concurrent findings, which had been recorded by both the Tribunals below, relating to the default committed by the tenant for the year 1979-80 and also in the absence of any plea relating to waiver or the conduct of the parties, inasmuch as it cannot be said that these are only pure questions of law and at the best these can be mixed questions of fact and law and in the absence of specific pleas such grounds cannot be permitted to be raised for the first time at revisional stage. I am not inclined to accept with the contentions of the learned Counsel representing the revision petitioners in this regard.
17. Viewed from any angle, I do not see any illegality or legal infirmity committed by both the Tribunals below in ordering the eviction of the tenant. Hence, absolutely there are no grounds to interfere with the orders impugned in the present civil revision petition.
18. Accordingly, the civil revision petition is dismissed as devoid of merits. No costs. It is needless to observe that the legal representatives of the tenant are at liberty to harvest the standing crop, if any.