( 1 ) HEARD the Counsel on record. ( 2 ) APPELLANT No. 2 - Indukuri suryanarayana Raju - the legal representative of appellant No. 1, the 6th defendant in OS no. 5 of 1988 on the file of Senior Civil judge, Narasapur, preferred the present appeal aggrieved by the decree and judgment made in OS No. 5 of 1988 aforesaid as against 6th defendant. ( 3 ) IT is stated that the other defendants had not preferred any appeal and it is needless to say that the decree made against them had attained finality. ( 4 ) BE that as it may, Sri subrahmanyam Kurella, learned Counsel representing the present appellant, the legal representative of Indukuri Jagannadha raju, the 6th defendant in the suit, had drawn the attention of this Court to the decree made and would maintain that during the pendency of the suit itself, the 6th defendant died and abatement also had been recorded and the same was recorded even in the decree, but in spite of that instead of dismissing the suit as against 6th defendant as having been abated, the suit was decreed as against the 6th defendant also and hence the same is not sustainable. Incidentally the Counsel also had taken this Court through the merits and demerits of the matter and certain of the findings recorded by the trial Court. ( 5 ) THIS Court is not inclined to go into the other merits and demerits of the matter. Be that as it may, the following points arise for consideration in this appeal : 1. Whether the decree and judgment made as against the 6th defendant be sustained in the facts and circumstances of the case ? 2. If so, to what relief the parties would be entitled to ? ( 6 ) AS already specified supra, indukuri Suryanarayana Raju, the legal representative of Indukuri Jagannadha raju, the 6th defendant in the suit OS no. 5 of 1988 on the file of Senior Civil judge, Narasapur, is prosecuting this litigation at present. 2. If so, to what relief the parties would be entitled to ? ( 6 ) AS already specified supra, indukuri Suryanarayana Raju, the legal representative of Indukuri Jagannadha raju, the 6th defendant in the suit OS no. 5 of 1988 on the file of Senior Civil judge, Narasapur, is prosecuting this litigation at present. ( 7 ) AS can be seen from the decree it was recorded as hereunder : "this suit is coming on this day for final disposal before me in the presence of sri G. Mangaiah Naidu, Advocate for the plaintiff and of Sri K. Swamy Naidu, advocate for the defendants 1 to 5 and the suit against 6th defendant is abated, this court doth order and decree as follows : 1. that the suit be and the same is hereby decreed; 2. that the defendants do pay to the plaintiff a sum of Rs. 32,447. 20 ps with subsequent rate of interest at 6% per annum on rs. 28,830/- (Rs. 9,300/- + Rs. 9,765/- + Rs. 9,765/-)from the date of the suit till realization; 3. that the plaint B schedule property do stand as charge for the amount decreed in clause (2) supra; 4. that the defendants do also pay to the plaintiff a sum of Rs. 4,283/- towards costs of the suit bearing his own costs of Rs. 1,005/ -. Plaint A and B schedules are attached hereto. Given under my hand and the seal of the court this the 15th day of April, 1999. " ( 8 ) THE suit was filed for recovery of maktha of Rs. 32,447. 20 ps. It was pleaded in the plaint as hereunder : "the plaintiff is the owner of the plaint A schedule property of 8 acres of wet land in RS No. 488 situated at Lankala Koderu. The plaintiff-temple put the leasehold right of the above said land for auction for 5 years from Fasli 1385 to 1390 on 19-6-1975. In that auction one Katta Venkataswamy of lankala Koderu adjudged as highest bidder and became the tenant of the plaintiff-temple for the above said land. As per the auction conditions, the tenant has to pay 93 bags of paddy for the first crop by 31st January of every year and 4 bags of paddy per acre for 2nd crop payable by 15th May of every year. As per the auction conditions, the tenant has to pay 93 bags of paddy for the first crop by 31st January of every year and 4 bags of paddy per acre for 2nd crop payable by 15th May of every year. The lease in favour of Katta venkata Swamy as tenant was confirmed and approved by the Endowments Commissioner under the proceedings d. Dis. No. B5/33785/75, dated 19-7-1975, and then the tenant executed a registered lease deed in faovur of the plaintiff-temple on 29-9-1975 in which d-6 was also joined as party in the lease deed by offering his land as security towards the makthas payable by the tenant Katta venkata Swamy. As the original registered lease was filed in the earlier suit in OS No. 7 of 1985, the Photostat copy of the same is filed. As per the said registered lease deed, in default of payment of makthas, the tenant has to pay interest at 0. 53 ps per hundred per month over the value of the arrears of maktha from the due date till the date of realization. The tenant abiding to the conditions laid down in the registered lease deed and the auction conditions took possession of the plaintiffs land and cultivated the land. The tenant Venkata swamy is always irregular in payment of makthas to the plaintiff-temple for the years of makthas payable for the year 1976-77, 78-79, 79-80, 80-81, 81-82, 82-83 and 83-84 suit was filed against the tenant and surety i. e. , D-6 in the Subordinate Judge's court, for recovery of value of 439 bags of paddy which was numbered as OS 7/85. The plaintiff-temple was also filed eviction petition ATC 1/85 against the tenant in the court of Special Officer (Tenancy), Palakol, which is still pending. While the above said suit and A. T. C. were pending, the tenant katta Venkata Swamy died intestate leaving behind his son D-1, his wife, D-2; his daughters D-3 to D-5 herein as his legal representatives to his estate. As such D-1 to D-5 are added as parties being legal representatives of the deceased-tenant in the suit and as well as in the A. T. C. also. The tenant Katta Venkata Swamy set up a plea that he handed over possession of the schedule land to the then Executive Officer of the plaintiff-temple in the year 1981. As such D-1 to D-5 are added as parties being legal representatives of the deceased-tenant in the suit and as well as in the A. T. C. also. The tenant Katta Venkata Swamy set up a plea that he handed over possession of the schedule land to the then Executive Officer of the plaintiff-temple in the year 1981. In fact the tenant has not handed over possession of that land to the plaintiff-temple and he is in continuation of possession of the said land. After the expiry of the original tenant, his legal representatives also has not handed over the possession of the land to the plaintiff-temple. Therefore, d1 to D5 as legal representatives of the deceased original tenant who are in continuation of possession of the land and d6 being the surety, liable for the arrears of makthas for the year 1984-85 - 93 bags; for the year 1985-86 - 93 bags and for the year 1986-87 of 93 bags. As the defendants failed to pay the arrears of makthas, the plaintiff-temple got issued registered notice demanding the payment of arrears of maktha to which the defendants gave reply on 6-1-1988 with false allegations. As per the registered lease deed dated 29-9-1975 the plaintiff is entitled to recover the arrears of maktha by a charge over the 6th defendant's land as shown in the b schedule. As per the registered lease deed dated 29-9-1975 the plaintiff is entitled to rs. 0. 53 ps interest per hundred per month over the arrears of maktha from the due date. Hence the suit is filed for maktha of Rs. 32,447. 20 ps". ( 9 ) DEFENDANT No. 1 filed written statement denying the allegations and it was also pleaded as hereunder : "this defendant reliably learnt that late Katta venkata Swamy agreed to pay only 3 bags of paddy per acre whenever Dalwa crop is raised and this defendant is not at all aware of the proceedings of the Religious and Charitable Endowments Department dated 19-7-1975. This defendant is not aware of the lease deed dated 29-9-1975 alleged to have been executed by late Katta Venkata swamy and D6 and questions the validity, genuineness, due execution and due attestation of the lease deed dated 29-9-1975 as per the provisions of the Transfer of property Act. This defendant is not aware of the lease deed dated 29-9-1975 alleged to have been executed by late Katta Venkata swamy and D6 and questions the validity, genuineness, due execution and due attestation of the lease deed dated 29-9-1975 as per the provisions of the Transfer of property Act. It is contended that late Katta venkataswamy was always irregular in payment of makthas and committed default of payment of 439 bags of paddy towards maktha are false and invented by the executive Officer of the plaintiff-Devasthanam. It is true that OS No. 7/85 was filed and this defendant has filed his written statement and contesting the suit. It is also true that the plaintiff has filed ATC 1/85 which was ended in dismissal. This defendant reliably learnt that the manager of the plaintiff-Devasthanam gave a registered notice dated 18-5-1981 to late venkataswamy requiring him to deliver possession of the holding as the lease period has expired and thereupon Venkataswamy got issued a reply that he was prepared to cultivate the lands if the maktha is reduced. But, the then Manager of the plaintiff-Devasthanam did not agree in reduction in maktha and therefore late Venkata Swamy did not exercise his option of continuing as tenant on the same terms and conditions and delivered the possession of the holding to the then Manager of the plaintiff-Devasthanam, but for the best reasons known to him, he failed to auction the leasehold rights of the land and with a view to cover up his inactiveness or lethargy, got filed suit for arrears of maktha and also the eviction petition. Late Venkata Swamy has not raised any crops subsequently. It is further contended that neither this defendant nor the other defendants were in possession of the plaint schedule property and neither this defendant nor the other defendants raised any crop in the plaint schedule property. Even in the year 1985 itself, this defendant has filed his written statement in OS No. 7/85 and counter in ATC no. 1/85 stating that the defendants are not in possession of the plaint schedule property. Hence, the plaintiff is not entitled to file this suit for recovery of the alleged maktha. There is no relationship of landlord and tenant between the plaintiff and D. 1 to d. 5. 1/85 stating that the defendants are not in possession of the plaint schedule property. Hence, the plaintiff is not entitled to file this suit for recovery of the alleged maktha. There is no relationship of landlord and tenant between the plaintiff and D. 1 to d. 5. This defendant got issued a reply registered notice dated 6-1-1988 to the registered notice got issued by the plaintiff stating true and correct facts. This suit is false, frivolous and vexatious to the knowledge of the plaintiff and therefore this defendant is entitled to compensatory costs under Section 35-A". ( 10 ) DEFENDANTS 2 to 5 filed a Memo adopting the written statement of 1st defendant. Defendant No. 6 filed written statement with the following averments : "the plaintiff is not entitled to claim any decree against this defendant in respect of any amounts said to be due subsequent to 31-5-1981 i. e. , subsequent to the period mentioned in the registered lease deed. The security mentioned in the registered lease deed relates only for the makthas payable during the period 19-6-1975 to 31-5-1981 and that too, subject to limit of Rs. 5,495. 5 ps. It is true that the plaintiff filed a suit in os No. 7/1985 which is not maintainable under law and the defendants are contesting the same. This defendant never received the alleged registered notice. It is further contended that the plaintiff took possession of the property and the plaintiff has not cultivated the same all these years subsequent to 31-5-1981, the question of payment of maktha does not arise. There are no bona fides nor merits in this suit and this suit is filed against this defendant only to harass him. " ( 11 ) ON the strength of the above pleadings of the parties, the following issues were settled : 1. Whether there was a valid lease between the plaintiff and late Katta venkata Swamy and whether the registered lease deed was executed on 29-9-1975 by late Katta Venkata swamy as tenant and the 6th defendant offering his B schedule lands as security towards makthas payable by Katta Venkataswamy ? 2. Whether late Katta Venkata Swamy agreed to pay 53 bags of paddy for sarva crop and for bags of paddy per acre whenever Dalwa crop was raised towards maktha ? 3. 2. Whether late Katta Venkata Swamy agreed to pay 53 bags of paddy for sarva crop and for bags of paddy per acre whenever Dalwa crop was raised towards maktha ? 3. Whether Katta Venkata Swamy delivered possession of the plaint A schedule land after the expiration of the lease period to the plaintiff-Devasthanam ? 4. Whether the plaint A schedule land was cultivated during the years 1984-85, 1985-86 and 1986-87 for sarva crop by late Katta Venkata swamy or defendants 2 to 5 and they failed to pay the agreed maktha ? 5. Whether there is relationship of landlord and tenant between the plaintiff and defendants 1 to 5? 6. Whether the 6th defendant, as surety, is liable for arrears of maktha for the years 1984-85, 1985-86 and 1986-87 as alleged by the plaintiff or his liability ceased subsequent to the year 1981 as contended by the 6th defendant ? 7. What amount is the plaintiff entitled to recover and from which defendants ? 8. Whether the plaintiff is entitled to charge over the plaint B schedule lands for recovery of any arrears of maktha ? 9. Whether the defendants 1 to 5 are entitled to compensatory costs ? 10. To what relief ? ( 12 ) ON behalf of plaintiff, PW. 1 was examined and Exs. A1 and A2 were marked and on behalf of defendants, 1st defendant was examined as DW. 1 and Exs. B1 to B5 were marked. The learned Judge, commencing from Paragraph 15, recorded reasons in detail on appreciation of the oral and documentary evidence and came to the conclusion that the suit to be decreed with interest thereon from the date of suit till the date of realization with costs creating charge over the plaint B schedule property. ( 13 ) IT is needless to say that the other merits and demerits of the matter need not detain this Court any longer since the other defendants, defendants 1 to 5, had not preferred any appeal whatsoever and the trial Court having recorded that no legal representatives on behalf of 6th defendant were brought on record and having recorded abatement, instead of dismissing the suit as against 6th defendant as abated, passing a decree as against 6th defendant also cannot be sustained. ( 14 ) IT is needless to say that the legal representative of the 6th defendant, the present appellant-Indukuri Suryanarayana raju, preferred this appeal with the leave of the Court and in view of the same, the judgment and decree made against Indukuri jagannadha Raju, the 6th defendant, cannot be sustained since the suit should have been dismissed as having been abated as against the 6th defendant. ( 15 ) ACCORDINGLY the suit filed as against 6th defendant-Indukuri Jagannadha Raju is hereby dismissed as having been abated. ( 16 ) IT is stated that plaint B schedule property is that of the said Indukuri jagannadha Raju. It is needless to say that when the suit itself ought to have been dismissed as having been abated as against the said Indukuri Jagannadha Raju, the said charge no longer would be operative. ( 17 ) IN the light of the findings recorded above, the present appellant, legal representative of Indukuri Jagannadha raju, is bound to succeed and accordingly the appeal is allowed so far as the deceased-Indukuri Jagannadha Raju is concerned. There shall be no order as to costs. .