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2003 DIGILAW 1395 (AP)

Haridasu Mavullayya v. Lanka Venkata Mahalaxmi

2003-11-12

P.S.NARAYANA

body2003
( 1 ) THE unsuccessful tenant in both the tribunals below had preferred the present civil Revision Petition under Article 227 of the Constitution of India. The tenant haridasu Mavullaiah suffered the order of eviction in the hands of landlady Smt. Lanka venkata Mahalakshmi in A. T. C. No. 89 of 1982 on the file of the learned Special Officer (Tenancy )-cum-Principal District Munsif, tanuku. ( 2 ) AGGRIEVED by the same, the tenant preferred A. T. A. No, 82 of 1994 on the file of the learned District Judge, Eluru, West godavari - Appellate Authority. During the pendency of the said A. T. A, the landlady smt. Lanka Venkata Mahalakshmi died and the Respondent Nos. 2 and 3 were added as legal Representatives of deceased-Lanka venkata Mahalakshmi-first respondent in the appeal as per the orders in I. A. No. 7622 of 1999 dated 10-02-2000 and in the said appeal respondent Nos. 4 and 5 - Lanka Lakshmana rao and Lanka Surya Lakshminarasimham were added as Legal Representatives of the deceased third respondent-Lanka G. Sastry, as per the orders in I. A. No. 2681 of 1998 dated 15-06-2001. ( 3 ) THE appellate authority while deciding the appeal along with several other A. T. As, dismissed the appeal and aggrieved by the same the unsuccessful tenant had preferred the present Civil Revision Petition. ( 4 ) SRI K. V. Satyanarayana, the learned counsel representing the revision petitionertenant had submitted that no doubt the concurrent findings had been recorded by both the Tribunals below relating to default, but, however, in view of the unsatisfactory disposal of the matter by both the Tribunals below, the tenant is bound to succeed. ( 4 ) SRI K. V. Satyanarayana, the learned counsel representing the revision petitionertenant had submitted that no doubt the concurrent findings had been recorded by both the Tribunals below relating to default, but, however, in view of the unsatisfactory disposal of the matter by both the Tribunals below, the tenant is bound to succeed. The learned Counsel had built up an argument that in the light of the change of extents, it is clear that since the original oral lease was commenced in the year 1974-75, now it is no longer continued subsequent to 1982 and a fresh tenancy came into existence and hence, it should be taken that the arrears, if any, prior to that period cannot be taken into consideration while dealingwith the ground of default under Section 13 (a) of Andhra pradesh (Andhra Area)Tenancy Act, 1956, (hereinafter referred to as the Act .) ( 5 ) THE learned Counsel further contended that unless the ingredients specified in Section 13 (a) of the Act are satisfied, the landlady is not entitled for the relief of eviction. The learned Counsel further contended that when the payment of maktha viz. , the produce in kind, also was agreed between the tenant and the landlady, it is essential that the usage had to be established and in the absence of the same, it cannot be said that the landlady had established the ground of default. The learned Counsel also made elaborate submissions relating to the applicability of the doctrine of waiver to the facts of the present case. The learned Counsel also had placed reliance on certain decisions to substantiate his contentions. ( 6 ) PER contra, Sri V. L. N. G. K. Murthy, the learned Counsel representing the present legal Representatives of the deceased landlady, would contend that all these aspects are only questions which are being raised for the first time at the revisional stage without having any basis in the respective pleadings of the parties and the same cannot be permitted in the present revision. ( 7 ) THE learned Counsel further contended that no doubt the pleadings may not be clear but by that itself it cannot be inferred that there was a fresh lease and hence the prior arrears cannot be made a ground for establishing the ground of default under section 13 (a) of the Act. ( 7 ) THE learned Counsel further contended that no doubt the pleadings may not be clear but by that itself it cannot be inferred that there was a fresh lease and hence the prior arrears cannot be made a ground for establishing the ground of default under section 13 (a) of the Act. ( 8 ) THE learned Counsel had taken this court through the respective pleadings of the parties and had explained that the tenancy of the lease transaction in relation to both the items as one and the same, but for one item the cash payment was agreed upon between the parties and for the other item the payment in kind that is by way of produce. ( 9 ) THE learned Counsel also submitted that this is not a case of default for a simple period of one year wherein it may be necessary to establish the question of usage or otherwise of the other ingredients specified under Section 13 (a) of the Act. The learned counsel further explained that when the kind payment agreed upon between the parties had not been paid stretching for certain years there is no question of establishing any usage insucha case because the said aspect will fall into insignificance. Whatever may be the time, automatically in such a case it can be taken that the tenant had committed default. In this view of the matter, in the light of the findings recorded both by the Primary Tribunal and the Appellate authority, the ground of default was well established and in view of the limitations of exercise of power under Article 227 of the constitution of India, the Civil Revision petition deserves to be dismissed. ( 10 ) HEARD both the Counsel and also perused the findings recorded by the Special officer (Tenancy)-Cum-Principal District munsif, Tanuku, the District Judge West godavari at Eluru - appellant authority and also the oral and documentary evidence available on record. As already referred to supra, the deceased landlady smt. Lanka venkata Mahalakshmi had filed A. T. C. No. 89 of 1982 on the file of Special Officer (Tenancy)-cum-Principal District Munsif, tanuku, under Section 13 of the Act praying for termination of tenancy on the ground of default. ( 11 ) THE said landlady Smt. Lanka Venkata mahalakshmi in the A. T. C. had pleaded as under:"the respondent used to cultivate an extent of Ac. ( 11 ) THE said landlady Smt. Lanka Venkata mahalakshmi in the A. T. C. had pleaded as under:"the respondent used to cultivate an extent of Ac. 10-39 subject to payment of Rs. 500/- per acre payable by 1st march of every year at Kakinada. The respondent committed default and there is an arrear. The petitioner used" to enter the various payments made by the respondent in her account book and as per the said account a sum of rs. 31,159-84 ps is due besides 17 bags of paddyby 01-03-1982. The respondent left other items of property and at present he is cultivating only Ac. 3-64 of land. The rent was subsequently enhanced to Rs. 700/-per acre and later at Rs. 2,000/- for item (1) and 17 bags for item (2 ). Sessions that a sum of rs. 1,058-00/- is due towards the value of bricks. The petitioner got issued a notice dated 31-05-1982 calling upon the respondent to deliver possession of the land, to pay the arrear as well as the value of bricks. The respondent received the said notice and got his reply dated 05-06-1982 issued with false contentions. The averments in the reply that the rent claimed is not correct, it is payable by Telugu New Year and at kanuru Agraharam etc. , is not correct. The respondent is a chronic defaulter and the petitioner is entitled to seek eviction. " ( 12 ) THE present revision petitioner-tenant filed a counter denying the material allegations and pleading as under:"the various claims made in the petition cannot be maintained. The entire land taken on lease by the respondent is not of uniform quality. Even the dry land is not uniform. So, the rents are fixed according to the quality. The respondent is entitled to raise any crop of his choice. It is false to allege that the respondent took the land on lease to the rate of rs. 500/-, which was subsequently enhanced to Rs. 700/ -. The defendant never committed any default at any time. He had been regularly delivering cash to the petitioner in the village kanuru Agraharam. It is false to allege that the lease was given only for the first time during the agricultural year 1974-75. 500/-, which was subsequently enhanced to Rs. 700/ -. The defendant never committed any default at any time. He had been regularly delivering cash to the petitioner in the village kanuru Agraharam. It is false to allege that the lease was given only for the first time during the agricultural year 1974-75. The lands belonging to the petitioner s family were under cultivation from the time of the respondent s father, and after the respondent s father the respondent continued to cultivate the land. It is false to allege that the lease terms in the village Kakinada between the petitioner and the respondent. It is false to allege that the rent is agreed to be delivered in the village Kakinada. There is no such term or practice in the locality. It was specifically agreed that the rent should be delivered in the village Kanuru agraharam. The petitioners are having residential house in the village Kanuru agraharam and they are frequently visit and stay in the Village for some time. The due date for payment of rent is on every Telugu New Year s day, but not the 1st March. All crops will be ripe for harvest by Telugu New Year s day and that therefore the said date is fixed orally at the time of the conclusion of the lease. As per the custom and practice also in the locality the due date for payment to usually Telugu New Year s day. It is false to allege that the defendant commenced default from the beginning and he used to make part payments from time to time. The said allegation is baseless. It is false that the petitioner maintained an account. The accounts are nothing but concoctions. They are manipulated by the plaintiff. The entries made in the alleged account are all self serving. Admittedly some of the entries in spurious account are also barred by time. The material allegations made contrary to the facts disclosed supra are all false. It is false to allege that the rent payable for item 1 is Rs. 2,000/- per year and for the 2nd item 17 bags. It is false to allege variation of the terms of the lease. It is false to allege that an amount of Rs. 31,159-84 ps is the besides value of 17 bags at Rs. 85/- from the respondentby 01-03-1982. That is a sum of Rs. 2,000/- per year and for the 2nd item 17 bags. It is false to allege variation of the terms of the lease. It is false to allege that an amount of Rs. 31,159-84 ps is the besides value of 17 bags at Rs. 85/- from the respondentby 01-03-1982. That is a sum of Rs. 32,604-84 ps in due from the respondent. It is false to allege that the respondent was liable to pay a sum of rs. 1,058/-towards the alleged value of the bricks. The respondent never purchased bricks at any time. The petitioner improved the case from stage to stage somehow to harass the respondent. The petitioner never demanded at any time the respondent for the alleged beque claim a registered notice dated 31-05-1982 with altogether false and frivolous allegations for which this respondent got issued a reply notice dated 05-06-1982 with altogether true and correct facts. " ( 13 ) BEFORE the Special Officer the landlady was examined as P. W. 1 and apart from p. W. I, P. Ws. 2 to 4 were also examined. Ex. A-1 is the certified copy of the Account book Ex, A-2 is the copy of letter addressed by tenant to landlady dated 12-01-1978, exs. A-3 to A-22 are different letters, exs. A-23 and A-24 are replies Exs. A-25 to a-35 are the Adangal extracts were also marked. ( 14 ) LIKEWISE, the tenant was examined as r. W. 1 and apart from R. W. 1, R. Ws. 2 and 3 also were examined. Ex. X-1 is the Maktha receipt dated 03-02-1984 and other receipts exs. X-2 to X-4 also were marked. ( 15 ) P. W. 1 had deposed in detail relating to Ex. A-l, certified copy of the Account book, which was being maintained by her in regular course. ( 16 ) IN fact, the learned Special Officer had recorded a finding in detail carefully scrutinizing the evidence of P. W. 1 in relation to Ex. A-l and ultimately arrived at a conclusion that the default was committed by the tenant. This finding was confirmed by the Appellate authority, no doubt, while disposing of A. T. A. 82 of 1994 along with certain other A. T. As. A-l and ultimately arrived at a conclusion that the default was committed by the tenant. This finding was confirmed by the Appellate authority, no doubt, while disposing of A. T. A. 82 of 1994 along with certain other A. T. As. It is no doubt true that the findings recorded by the appellate authority are not so satisfactory, but the question is whether on this ground the concurrent findings recorded by both the tribunals below on the ground of default be disturbed in this Revision under Article 227 of the Constitution of India especially in view of the limitations in exercise of power of this Court under the said provision. ( 17 ) THERE cannot be any doubt when the eviction petition is based on the ground of default under the Act, the ingredients of section 13 (a) of the Act are to be established. The lease in the present case is an oral one. ( 18 ) RELIANCE was placed on Pannala suryanarayana Murthy v. Maddukurt subbanna, wherein it was held that when there is no written stipulation as to payment of rent by tenant, eviction of tenant on failure to pay the rent by a date under an oral agreement, cannot be ordered. ( 19 ) STRONG reliance was placed on dhanyamraju Jagannadha Rao v. Thummala suryakrishna Murthy, wherein it was held thus: a Careful reading of the section shows that there are three limbs in section 13 (a) of the Act, which can justify the eviction of tenant. The first limb requires the proof that there is a lease deed in existence between the parties and that date is stipulated in the said lease deed. If such date is stipulated and even then if tenant fails to pay the rent within one month from such stipulated date, he incurs the liability of forfeiture of the tenancy. In this case admittedly this limb does not apply because there was no lease executed in respect of the year in question. It is contended that there was one lease deed of 1959, which was executed between the parties and, the same terms have continued. This does not satisfy the requirementoffirstlimbofsectionl3 (a) because the said lease deed had expired and only conditions are alleged to have continued. It is contended that there was one lease deed of 1959, which was executed between the parties and, the same terms have continued. This does not satisfy the requirementoffirstlimbofsectionl3 (a) because the said lease deed had expired and only conditions are alleged to have continued. The fact remains that there was no lease deed in existence for the year in question and as such there was no stipulated date for payment of rent in a lease deed for the year in question. As far as second limb is concerned, it states that in the absence of such a stipulation in a lease deed the tenant is required to pay the rent within one month from the date on which the rent is due according to the usage of the locality. Therefore, for incurring forfeiture under this limb, it is necessary for the landlord to prove the condition required for terminating the tenancy. The condition is that there should be a usage of the locality which requires payment for rent at a particular time. If this usage in the locality is not proved, the liability would not arise for nonpayment of rent by the tenant against such alleged or purported usage in the locality. The learned Counsel contends that the very fact that the respondents were paying rent on a particular date every year in the past shows that it was the date agreed by the parties which would justify existence of usage. The agreed date between the parties may not necessarily be the date according to the usage in the locality. Merely, because parties agreed to that date, does not prove the case within the second limb of the Section 13 (a) of the Act. The learned Counsel tried to bring the case under the third limb which requires that the rent is payable in the form of a share in the produce. It is stipulated in this part of Section 13 (a) that when the rent is payable in the form of share in the produce, the renthas tobedelivered to the landlord within one month from the time when the harvesting is done. Now in the instant case, the finding recorded by the authorities below is that the rent was not payable only in the shape of produce. It was payable partly in the shape of produce, and partly in cash. Therefore this limb does not apply. Now in the instant case, the finding recorded by the authorities below is that the rent was not payable only in the shape of produce. It was payable partly in the shape of produce, and partly in cash. Therefore this limb does not apply. " ( 20 ) SECTION 13 of the Act deals with the termination of Tenancy and Section 13 (a) reads as hereunder:"notwithstanding anything contained in Sections 10,11 and 12, no land lord 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. " ( 21 ) PLACING strong reliance on the words"the usage of the locality" and "has failed to deliver the produce at the time of harvest",an argument was built that since these ingredients were not satisfied the relief of eviction granted by the Tribunals below cannot be sustained. ( 22 ) AFTER framing the relevant points for consideration, both the Primary Tribunal as well the Appellate Tribunal had discussed the oral and documentary evidence in detail. It is pertinent to note that the default is not simple for one year only and when the default is spread over for a sufficient period it is not essential to prove the ingredients referred to supra, since the time of payment definitely would lose its significance in view of the deliberate default committed by the tenant stretching over for a sufficient period beyond the period of one year. Hence letting in evidence in this regard may not be of any consequence, in the light of the aforesaid factual position. Hence letting in evidence in this regard may not be of any consequence, in the light of the aforesaid factual position. ( 23 ) IN view of the facts and circumstances, which in fact had been recorded in detail by the Primary Tribunal, which had been confirmed by the Appellate Tribunal as well, and also taking into consideration that though the agreed payment was cash payment in relation to one item and payment in kind in relation to another item the payment being in relation to one tenancy, if default is established, that is a sufficient ground to attract Section 13 (a) of the Act. ( 24 ) HENCE, I am unable to agree with the contention advanced by the learned Counsel representing the petitioner-tenant in this regard. No doubt, yet another argument was built up that in view of the weakness of the plea in the eviction petition it should be inferred that there was a fresh tenancy and the prior arrears would not constitute any default at all for invoking doctrine of Waiver. ( 25 ) RELIANCE was placed on Nalivela komaraiah v. Gannu Nagamani. This was a case where the learned Judge had dealt with the Doctrine of Waiver of the Statutory benefit in relation to A. P. Buildings (Lease, Rent and eviction) Control Act, 1960, wherein it was held that a party can waive a statutory stipulation which is to his benefit by an agreementwith another party except a benefit conferred by a statute which has public policy and in which public have also an interest. ( 26 ) AS can be seen from the respective pleadings of the parties, there is no specific plea in this regard and even otherwise in the light of the pleadings in the eviction petition, it cannot be said that there was any fresh tenancy, merely because there is some discrepancy relating to the extent of land. ( 27 ) HENCE, I am not inclined to agree with the contention that the Doctrine of Waiver is applicable to the facts of the present case. Viewed from any angle, I do not see any reason to disturb the concurrent findings recorded by both the Tribunals below. ( 28 ) IN view of the same the Civil Revision petition being devoid of merits shall stand dismissed. No costs.