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Andhra High Court · body

2007 DIGILAW 1098 (AP)

Muthakamalli Sitaravamma v. Soma Venkateswarlu

2007-11-07

G.YETHIRAJULU

body2007
ORDER This Revision Petition is filed by the respondents in A.T.C.No.4 of 1993 on the file of the Special Officer-cum-Principal Junior Civil Judge, Guntur. 2. For the purpose of convenience, the parties herein are referred to as they are arrayed in A.T.C.No.4 of 1993. 3. The A.T.C. was filed by the respondent herein for declaration that he is the statutory tenant over the petition schedule property. The respondents denied the landlord and tenant relationship between them and petitioner and pleaded that the petitioner is not entitled for the relief as prayed for. The land in respect of which the tenancy rights claimed is about 5 acres and odd. It is the contention of the petitioner that since 30 years he has been cultivating the land by raising the green grass and selling the same and was paying the rent every year annually towards lease amount. Since there is threat of dispossession by the respondents, he is entitled for the declaration of tenancy rights as prayed for. 4. The respondents have been contending that they were personally cultivating the land by raising green grass through drainage water and were selling the same for a particular amount from time to time by giving the right to cut and carry the grass from the land, therefore, the petitioner do not come within the definition of the cultivating tenant and he is not entitled for declaration as prayed for. 5. On behalf of the petitioner, PWs.1 to 3 were examined and Exs.A-1 to A-4, X-1 and X-2 were marked. On behalf of the respondents, RWs.1 to 3 were examined and Exs.B-1 and B-2 were marked. 6. The Special Officer, after considering the evidence adduced by both parties, dismissed the Application by holding that the petitioner was not the cultivating tenant. When the petitioner preferred A.T.A.No.23 of 2000 on the file of the Tenancy Appellate Tribunal (District Judge), Guntur, the Appellate Tribunal allowed the Appeal by holding that Ex.B-2 indicates that he was a tenant of the land, therefore, he is entitled for the declaration as prayed for. Being aggrieved by the same, the respondents preferred the present Revision challenging the validity and legality of the order passed by the Appellate Tribunal. 7. Being aggrieved by the same, the respondents preferred the present Revision challenging the validity and legality of the order passed by the Appellate Tribunal. 7. During the enquiry before the Special Officer, the petitioner contended that Ex.B-2 document, said to be executed by him, is not executed by him and it does not contain his signature, therefore, the document was sent to the expert and the expert gave an opinion that it contains the signature of the petitioner and they were obtained on a blank paper on account of his illiteracy and by force. That plea was not accepted by the Special Officer so also by the Appellate Tribunal. The Appellate Tribunal gave an interpretation to the document whether it is a lease or not and, after giving its own reasons, held that the petitioner is the tenant of the land, therefore, the point for consideration is: "Whether the material placed before the Court is sufficient to hold that the petitioner is a statutory tenant and whether he is entitled for protection under the A.P. (Andhra Area) Tenancy Act, 1956? (for short 'Tenancy Act')" 8. Ex.B-2 is an agreement between the parties, wherein it was categorically mentioned that the owners of the land raised green grass and the said grass was sold to the petitioner giving him right to cut and carry the grass for a period of 11 months. It was also mentioned that the petitioner agreed to pay costs of the green grass and accordingly, he deposed the amount into the Court. 9. The learned counsel for the petitioner contended that he has been cultivating the land for the last 30 years. It is asserted by the petitioner, who was examined as PW-1, that he is cultivating the land by raising the grass and cutting the same from time to time. The petitioner also examined PWs.2 to 4 in support of his contention to establish that he was cultivating the land. But, he did not produce any documentary evidence in support of the oral evidence to establish that he was in possession of the land prior to Ex.B-2 document. No adangals have been filed to indicate whether he was in possession of the land at any time during the 30 years period. Ex.A-2 is a notice issued by the respondents to the petitioner. No adangals have been filed to indicate whether he was in possession of the land at any time during the 30 years period. Ex.A-2 is a notice issued by the respondents to the petitioner. In that notice also, it was specifically mentioned that the petitioner was given right to cut the green grass raised by them. He failed to give any reply to the notice and rushed to the Tenancy Court seeking declaration that he is the statutory tenant. When there is documentary evidence to establish that he got only a right to cut and carry the green grass for the period mentioned in Ex.B-2 and specific terms repeatedly referring the said aspect in the entire document, it is an indication that the parties are conscious about the terms and conditions of the contract entered between them regarding the rights over the grass and that is why they specifically mentioned that the owners of the land raised the green grass with the drain water and they sold only the right to cut and carry the green grass for the period mentioned in Ex.B-2. There was silence on the part of the purchaser of the green grass for a considerable period without obtaining any receipt or any other document in support of his contention that he was recognized as a cultivating tenant at any time. 10. The cultivating tenant was defined under Section 2-C of the Tenancy Act, which reads thus: "2 (c). "Cultivating Tenant" means 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." As per the above definition, the person claiming tenancy will be recognized only when he cultivates the land by his own labour or by any other member of his family or by hiring labour under his supervisions and control in respect of the land belonging to another person under tenancy agreement express or implied. The above definition is very clear as to who comes within the definition of the cultivating tenant. 11. The above definition is very clear as to who comes within the definition of the cultivating tenant. 11. None of the ingredients mentioned above were incorporated in Ex.B-2 document and the respondents were specifically repeating the slogan that the petitioner was given only a right to cut and carry the green grass being conscious about the complications of describing him as a cultivating tenant. 12. In the light of the recitals of Exs.B-2 and A-2, the purchaser of the grass failed to produce any material to show that he was recognized as a cultivating tenant either by express terms or by implication, therefore, the Appellate Tribunal went wrong in describing that the said person gets perpetual tenancy rights under the Tenancy Act. The Appellate Tribunal, while allowing the Appeal, observed that when the purchaser takes away the standing crop immediately after purchase, then the land would be considered as a mere warehouse for the purchaser. But when the purchaser gets the right for taking the standing grass or timber or any crop in future at one time or repeated times depending on the growth of the standing crop, in such a case, the standing vegetation utilizes the nutriment from the earth for its growth and after the growth, the purchaser removes it. In such case, the purchaser got interest on the land also. 13. But, it was not mentioned in specific terms in Ex.B-2 document that he can be recognized as a cultivating tenant and that such contract will bring the said person within the definition of the cultivating tenant. 14. The learned counsel for the petitioner relied on certain Judgments by contending that the petitioner has to be recognized only as a cultivating tenant. In ALI HOSSAIN v. JOBABALI MONDAL, the Calcutta High Court held that in contracts for sale of growing straw the vendees derive a benefit from the further growth of the thing sowed, from further vegetation and from the nutriment to be afforded by the land and thus acquire an interest in the land and hence amalnama or a kabuliyat creating such a contract requires registration, therefore, such document cannot be said that it is only a contract for sale of goods. The above Judgment was delivered in connection with another issue raised before the Court, therefore, the Judgment has no relevancy to the facts of the present case. The above Judgment was delivered in connection with another issue raised before the Court, therefore, the Judgment has no relevancy to the facts of the present case. In SHANTABAI v. STATE OF BOMBAY, the Supreme Court referred Mulla's Transfer of Property Act, 4th Edition, wherein at page No.21 it was mentioned that: "Trees and shrubs may be sold apart from the land, to be cut and removed as wood, and in that case they are movable property. But if the transfer includes the right to fell the trees for a term of years, so that the transferee derives a benefit from further growth, the transfer is treated as one of immovable property." The Court observed that the trees and shrubs cut and remove as wood for sale from the land shall be treated as immovable property. But, if the transfer includes the right to fell the trees for a term of years, the transferee derives a benefit from further growth and such transfer is treated as one of the immovable property. In B.V.D'SOUZA V. ANTONIO FAUSTO FERNANDES , the Supreme Court, while considering the scope of a particular document, observed that the intention of the parties whether the document creates any interest in the property or not is an important consideration. 15. There is no dispute about the principles laid down in the above decisions. But after going through the recitals of Ex.B-2, it can be said without any hesitation that the said document do not come within the definition of lease. 16. In the light of the foregoing discussion, the order of the Appellate Tribunal is liable to be set aside by confirming the order of the Special Officer. 17. In the result, the Revision Petition is allowed. The order of the Appellate Tribunal in A.T.A.No.23 of 2000 is set aside and the order of the Special Officer in A.T.C.No.4 of 1993 is confirmed. No order as to costs.