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2003 DIGILAW 1322 (AP)

V. Jagan Mohana Sastry v. Beggu Sattiraju

2003-10-28

P.S.NARAYANA

body2003
( 1 ) SRI V. Jagan Mohana Sastry - Revision petitioner, aggrieved by the order made by the appellate authority-cum-District Judge, krishna at Machilipatnam in C. M. A. No. 120/ 94, dated 29-3-2000 reversing the judgment and decree of the Special Officer-cum-District munsif, Kaikalur made in A. T. CNo. 41/90, had preferred the present Civil Revision petition under Article 227 of the Constitution of India. ( 2 ) THE petitioner herein is the landlord and the respondent herein in the tenant. For the purpose of convenience, the parties will be referred to as "landlord" and "tenant" hereinafter. ( 3 ) THE landlord filed A. T. C. No. 41/90 on the file of Special Officer-cum-District munsif, Kaikalur for resumption of land specified in the schedule and the learned special Officer-cum-District Munsif, kaikalur, on appreciation of the evidence of p. W. 1 and R. W. 1 had arrived at a conclusion that the landlord had failed to prove that the tenant had been in arrears of rent and had negatived the said ground, but however had ordered eviction on the ground that the landlord requires the schedule land for his personal cultivation. Aggrieved by the same, the tenant preferred C. M. A. No. 120/94 on the file of appellate authority i. e. , District judge, Krishna at Machilipatnam. The landlord also had preferred Cross-Objections. At the appellate stage, several documents were filed and the tenant had taken a stand that Sri Jagannadha Swamy Temple is the owner of the petition schedule property. The learned District Judge after framing the Points for consideration, ultimately had arrived at the conclusion that the procedure contemplated under Section 12 of the A. P. (Andhra Area) Tenancy Act, 1956, hereinafter referred to in short as "act" for the purpose of convenience, had not been followed and had allowed the Appeal filed by the tenant and dismissed the Cross-Objections filed by the landlord. Aggrieved by the same, the landlord had preferred the present civil revision Petition. ( 4 ) SRI D. Srinivas, the learned Counsel representing the landlord had drawn the attention of this Court to the respective pleadings of the parties in A. T. C. No. 41/90 and had explained that this aspect that the procedural formalities had not been complied with was not specifically raised in the counter and hence there was no opportunity for the landlord to explain the same. The learned counsel also submitted that even otherwise, these are all procedural formalities and the non-compliance of the same at the best may be a curable irregularity and in the absence of the pleading, the tenant cannot take advantage of the same at the appellate stage without raising the said question in the counter. Strong reliance was placed on a decision of the Full Bench in Executive Officer, sri M. S. N. Charities, Kakinada v. Pilla Ramarao and others, in this regard. The learned Counsel also submitted that leaving 50% of the land to the tenant also would depend upon several other aspects inclusive of the total holding held by the tenant as such and hence the tenant cannot take shelter under Section 12 (1) proviso of the Act. Reliance also was placed on a decision of the Division Bench of this court in Edupalli Appalaswamy v. Allu appalaswamy. While elaborating his submissions, the learned Counsel also maintained that the tenant, though in fact not called for, voluntarily had raised a ground at the appellate stage denying the title of the present landlord and pleading that the title is with the Jagannadha Swamy Temple. The learned Counsel also submitted that this is specifically raised as ground No. 4 on the grounds of Revision and in view of section 13 (e) of the Act on the strength of his own admission made by the tenant stating that the landlord is not the owner which will amount to denial of title, the tenant is liable to be evicted. The learned Counsel meticulously had taken me through the findings recorded by the Special Officer and also the appellate authority in this regard. ( 5 ) PER contra, Sri O. Manohar Reddy, the learned Counsel representing the respondent/tenant had submitted that this civil revision Petition is preferred under article 227 of the Constitution of India and inasmuch as the jurisdiction of this Court is only supervisory, this additional ground cannot be permitted to be raised by the landlord merely taking advantage of certain documents which had been pressed into service by the tenant at the appellate stage. The learned Counsel also submitted that under Section 12 (2) (b) of the Act, the issuance of four months notice is definitely mandatory and non-compliance thereof is fatal. The learned Counsel also submitted that under Section 12 (2) (b) of the Act, the issuance of four months notice is definitely mandatory and non-compliance thereof is fatal. The mere fact that specific plea was not taken in the counter is of no consequence since the landlord is bound to satisfy all the requirements of the provision and in the absence of the same, it should be taken that the landlord had failed to discharge his burden cast upon him in law and is bound to fail. The learned Counsel also had drawn my attention to Sections 12 and 13 of the Act and also the findings recorded by the appellate authority in detail and had concluded that this is not a case where the findings can be in any way disturbed by the Revisional Court under Article 227 of the Constitution of India. ( 6 ) HEARD both the Counsel. ( 7 ) IN Surya Dev Rai v. Ram Chanderrai, the apex Court while dealing with the jurisdiction of the High Courts under articles 226 and 227 of the Constitution of india vis-a-vis the interlocutory orders passed by the Courts subordinate to High court, had an occasion to consider this aspect wherein it was observed:"supervisory jurisdiction under Art. 227 of the Constitution is exercised for keeping the Subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the high Court may step in to exercise its supervisory jurisdiction. " ( 8 ) THE landlord filed A. T. C. No. 41/90 with the following allegations: the petition schedule land originally belonged to one Bala Krishna Murthy, the paternal uncle of the petitioner. The said balakrishna Murthy died issueless. His wife sitaravamma also died intestate. As such the petitioner alone emerged as the sole legal heir of the said Balakrishna Murthy and sitaravamma and accordingly succeeded to the properties of his paternal uncle. During the lifetime of Balakrishna Murthy he leased out the schedule lands to the father of the respondent. The said balakrishna Murthy died issueless. His wife sitaravamma also died intestate. As such the petitioner alone emerged as the sole legal heir of the said Balakrishna Murthy and sitaravamma and accordingly succeeded to the properties of his paternal uncle. During the lifetime of Balakrishna Murthy he leased out the schedule lands to the father of the respondent. After the death of Sivaravamma the petitioner got issued a legal notice to the father of the respondent and other ryots on 15-5-1983 through his Advocate demanding them to deliver rents and also deliver possession of the schedule lands to the petitioner. The father of the respondent requested the petitioner to lease out the lands to him and other ryots and accordingly they executed an agreement in favour of the petitioner on 22-5-1985. The respondent s father agreed to deliver possession of the schedule land to the petitioner by the end of may 1986. He, however, failed to pay the rent as agreed upon and also failed to deliver the land to the petitioner. The respondent continued to be in possession after the death of his father Balaswamy and did not either pay the rent due to the petitioner. It was further pleaded that he wilfully neglected to pay the rents. The petitioner submitted that having had no other avocation except cultivation he required the lands for his personal cultivation. The sons of the petitioner were also stated to be unemployed and therefore they needed the land for personal cultivation. It was further pleaded that the respondent failed to pay the rents since 1985 and thus the petitioner filed A. T. C. on the grounds of default in payment of rents as also personal requirement. ( 9 ) THE tenant resisted the said eviction petition denying almost all the facts. It was further pleaded that he had paid rents regularly and had been paying regularly as per the original arrangement at the rate of six bags of paddy per acre for sarva and three bags of paddy per acre for dalva. However, the tenant had pleaded that the petitioner was merely the agent of the heirs of late balakrishna Murthy and was collecting the rents in that capacity. It was also pleaded that the transactions were going on orally alone and hence there are no grounds for eviction according to him. However, the tenant had pleaded that the petitioner was merely the agent of the heirs of late balakrishna Murthy and was collecting the rents in that capacity. It was also pleaded that the transactions were going on orally alone and hence there are no grounds for eviction according to him. ( 10 ) AS already referred to supra, the learned Special Officer had negatived the relief on the first ground and had ordered eviction only on the second ground. It is no doubt true that in the counter, the tenant had not taken specific plea that the procedural formalities had not been followed. Even otherwise, I am of the opinion that these procedural formalities which are mandatory in nature should be proved by the landlord and hence the reversal of the order on that ground by the appellate authority cannot be said to be bad in law. However, It is pertinent to note that the landlord had raised a contention that if the plea was raised by the tenant at the earliest stage, the landlord could have proved the said aspect also. The learned counsel also had placed reliance on the effect of proviso of Section 12 (1) while ordering resumption, and also on the aspect of computation of 50% of the total holding of the tenant, and had placed reliance on the decisions referred (1) and (2) supra in this regard. However, it is pertinent to note that these are all factual aspects. ( 11 ) THE tenant had filed several documents at the appellate stage taking a specific stand that Jagannadha Swamy Temple is the owner of the property, thereby taking a stand denying the title of the landlord, attracting section 13 (2) of the Act. As already stated supra, the said stand was taken by the tenant at the stage of Appeal. An attempt was made by the learned Counsel representing the tenant that such a ground cannot be permitted to be taken by the landlord at the Revisional stage in a proceeding under Article 227 of the constitution of India. I am not inclined to accept the said contention for the reason that the tenant had voluntarily filed those documents before the appellate authority taking a specific stand that the landlord is not the owner, and yet another stand that jagannadha Swamy Temple is the owner of the property. I am not inclined to accept the said contention for the reason that the tenant had voluntarily filed those documents before the appellate authority taking a specific stand that the landlord is not the owner, and yet another stand that jagannadha Swamy Temple is the owner of the property. In the light of the subsequent events, I am of the considered opinion that it would be just and reasonable to afford opportunity to both the parties to substantiate their respective contentions. In view of the same, I am inclined to set aside the impugned order made in C. M. A. No. 120/94 on the file of the appellate authority-cum-District Judge, krishna at Machilipatnam, and remit the matter to the Special Officer-cum-District munsif, Kaikalur for the purpose of affording opportunity to both the parties to let in evidence on the additional ground of denial of title also. Accordingly, the impugned order is set aside and the matter is remitted to the special Officer-cum-District Munsif, kaikalur for the purposes specified supra. It is made clear that liberty is given to both the parties to let in further evidence on the grounds already raised in A. T. C. ( 12 ) THE Civil Revision Petition is accordingly allowed to the extent indicated above. No costs.