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2008 DIGILAW 820 (AP)

Janga Gopamma v. Janga Srivenkata Harinath

2008-09-24

P.S.NARAYANA

body2008
ORDER: Heard Sri Y.V. Srinivasan representing Sri K. Chidambaram, counsel for revision petitioners and Sri Venkateswarlu representing Sri Nimmagadda Satyanarayana, counsel for first respondent. 2. The civil revision petition is filed by the revision petitioners being aggrieved of the judgment dated 21.02.2003 made in A.T.A.No.101 of 1996 on the file of the Appellate Tribunal-cum-Principal District Judge, West Godavari, Eluru. 3. One Janga Venkata Sitarama Swamy filed A.T.C.No.37 of 1986 on the file of Special Officer-cum-I Additional District Munsif, Eluru, under Section 13 read with 16 of Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (hereinafter in short referred to as 'the Act' for the purpose of convenience) praying the court to pass eviction order against the respondents directing them to hand over vacant possession of the petition schedule property and for costs. R.3 and R-4 were added as per the order in I.A.No.530 of 1993, dated 15.6.1993. The said A.T.C. was resisted by filing a counter in detail. The Primary Tribunal recorded the evidence of P.Ws.1 to 4 and also R.W.1 and R.W.2, marked Exs.A-1 to A-10, Exs.B- 1 to B-7, formulated the point for consideration at para 4, recorded reasons in detail on appreciation of oral and documentary evidence available on record and came to the conclusion that the petitioner in the A.T.C. was able to establish his case and accordingly the tenancy petition was allowed with costs. Aggrieved by the same, the first respondent carried the matter by way of appeal A.T.A.No.101 of 1996 on the file of the Appellate Tribunal-cum-Principal District Judge, West Godavari, Eluru. The second respondent Tadikonda Kondayya, R-2 in A.T.C.No.37 of 1986 on the file of Special Officer-cum-I Additional District Munsif, Eluru, having died, Tadikonda Sarada and Tadikonda Raja Rao were brought on record as already aforesaid and those parties also preferred an appeal A.T.A.No.103 of 1996 on the file the Appellate Tribunal-cum-Principal District Judge, West Godavari, Eluru. The learned Appellate Tribunal-cum- Principal District Judge, West Godavari, Eluru, by a common judgment, after recording reasons, came to the conclusion that the order made by the Primary Tribunal cannot be sustained and accordingly allowed A.T.A.No.101 of 1996 and dismissed A.T.A.No.103 of 1996 and the parties were directed to bear their own costs. 4. During pendency of A.T.As. The learned Appellate Tribunal-cum- Principal District Judge, West Godavari, Eluru, by a common judgment, after recording reasons, came to the conclusion that the order made by the Primary Tribunal cannot be sustained and accordingly allowed A.T.A.No.101 of 1996 and dismissed A.T.A.No.103 of 1996 and the parties were directed to bear their own costs. 4. During pendency of A.T.As. the petitioner in A.T.C. Janga Venkata Sitarama Swamy died and Janga Gopamma @ Veeramma, Janga Gopalakrishna Murthy @ Gopala Rao and Janga Ranganayakamma @ Rangamma, the present petitioners, R-5 to R-7 in A.T.A.No.101 of 1996 were brought on record as legal representatives of deceased first respondent in the said A.T.C. dated 25.6.1997 in I.A.No.835 of 1997. It is needless to say that the said party was the petitioner in A.T.C.No.37 of 1986 aforesaid who filed the said A.T.C. praying for eviction. The said legal representatives of the petitioner in A.T.C.No.37 of 1986 i.e., R-5 to R-7 in A.T.A.No.101 of 1996 being aggrieved of the reversal order made by the Appellate Tribunal had preferred the present civil revision petition. 5. Sri Y.V. Srinivasan representing Sri K. Chidambaram, learned counsel representing the revision petitioners had taken this court through the findings recorded by the Primary Tribunal and also the findings recorded by the Appellate Tribunal and would maintain that merely because there is some dispute relating to title or such question is put forth, it cannot be said that the Tenancy Tribunal has no jurisdiction to decide the question of landlord and tenant relationship. There may be several cases where the denial may not be bona fide at all and the willful denial would be made for the purpose of seeing that the parties approach a competent civil court so that the proceedings may be further delayed. The counsel would maintain that this cannot be the object of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956. The learned counsel also relied on certain decisions to substantiate his submissions. 6. Per contra, Sri Venkateswarlu, representing Sri Nimmagadda Satyanarayana, would maintain that in the light of the convincing reasons recorded by the Appellate Tribunal this is not a matter to be interfered with in a civil revision petition. The learned counsel also had taken this Court through the evidence available on record and would maintain that Ex.A-5 was not proved, whereas Ex.B-1 was duly proved. The learned counsel also had taken this Court through the evidence available on record and would maintain that Ex.A-5 was not proved, whereas Ex.B-1 was duly proved. The counsel pointed out to relevant portions of the findings recorded by the Primary Tribunal and also relied on certain decisions and further would maintain that in a case of this nature where the dispute is relating to title to the property and rival claims were put forth i.e., Ex.A-1 and Ex.B-1, it would be just and property if a competent civil court decides such question relating to title. Incidentally, the learned counsel had drawn the attention of this Court to different provisions of Andhra Pradesh (Andhra Area) Tenancy Act, 1956, in general and the definition of landlord in particular. 7. Heard the counsel. 8. The legal representatives of the deceased petitioner, who filed A.T.C.No.37 of 1980 on the file of the Primary Tribunal, being aggrieved of the reversal order made in A.T.A.No.101 of 1996 by the Appellate Tribunal had preferred the present civil revision petition. Inasmuch as A.T.A.No.103 of 1996 had been dismissed, as against the said order no further civil revision petition had been preferred. The order made in A.T.A.No.101 of 1996 alone is being challenged though a common order was made by the Appellate Tribunal by virtue of common judgment made in both A.T.A.No.101 of 1996 and A.T.A.No.103 of 1996 by order dated 21.2.2003. 9. For the purpose of convenience, the parties hereinafter would be referred to as shown in A.T.C.No.37 of 1986 on the file of Special Officer-cum-I Additional District Munsif, Eluru. At present the legal representatives of the petitioner in A.T.C. are prosecuting this litigation. 10. It was averred in the A.T.C. as hereunder. The petitioner had got three brothers namely Venkata Satyanarayana Murthy, Venkata Nagabhushanam and Venkata Harinadh, who is respondent No.1. The mother of the petitioner viz., Janga Adiyamma possessed wet land in T.S.Nos.406 and 432 an extent of Ac.8-63 cents situated in Malkapuram alias Palagudem village. It is also averred that petitioner's mother Adiyamma executed a Will on 01.5.1976 bequeathing her landed property and movables to the petitioner with absolute rights and his mother died in the month of September 1988. During her life time, respondent No.1 took the land on lease on annual maktha of 8 bags of Paddy payable by the end of December every succeeding year. During her life time, respondent No.1 took the land on lease on annual maktha of 8 bags of Paddy payable by the end of December every succeeding year. After the death of his mother, the petitioner requested the first respondent to hand over possession of the land. In spite of repeated demands, the first respondent had not complied with the same and became defaulter in paying maktha. On the other hand, respondent No.1 inducted the husband of the third respondent i.e., father of 4th respondent as make believe tenant with an ulterior motive of harassing the petitioner. The petitioner got issued a notice dated 26.7.1986 to the respondents calling upon them to hand over vacant possession of the schedule land. The respondents having received the said notice had not chosen either to hand over the schedule land or give any reply. 11. The first respondent resisted the same denying the averments made in the petition. It was pleaded that there was no relationship of landlord and tenant between the petitioner and the said respondent, as such this Court has no jurisdiction to entertain the petition. It is also pleaded that this respondent claims title to the petition schedule land as such he was not tenant. The petitioner was not the owner of the petition schedule land. The petitioner never leased out the petition schedule land to respondent No.1. Respondent No.2 was not a sub-tenant under respondent No.1 as alleged in the petition. Respondent No.1, as the owner of the property and landlord, leased out the petition schedule land to respondent No.2 and he was cultivating tenant under him. Respondent No.1 and the petitioner were brothers. The petitioner claims title to the petition schedule property under a Will dated 01.5.1976 executed by his mother. Respondent No.1 got issued a reply notice dated 20.8.1986 stating that he was the owner of the property as per the Will dated 02.7.1978 and that he mortgaged the said land in Andhra Bank, Kovvali on 19.10.1984 for raising a crop loan by depositing the Will. Respondent No.1 had been enjoying the property as absolute owner paying land revenue to the government since 1978. If the petitioner claims title to the property, he ought to have approached Civil Court for redressal. Respondent No.1 had been enjoying the property as absolute owner paying land revenue to the government since 1978. If the petitioner claims title to the property, he ought to have approached Civil Court for redressal. The mother of the first respondent cancelled the said Will and executed another Will in favour of respondent No.1 on 02.7.1978 and registered the same with a Notary Public on 05.8.1978. The mother of respondent No.1 did not lease out the land to him as alleged. There was no cause of action for the petition. 12. The second respondent filed counter denying the allegations of the petition. It is also pleaded that it is true that the petitioner and R-1 are brothers. The mother of respondent No.1 bequeathed the schedule property to respondent No.1, out of love and affection under her last Will and testament dated 08.7.1978 to be enjoyed by him with absolute rights and the Will was duly attested by the Notary Public at Eluru on 05.8.1978. The testator died on 15.9.1978. Since then, the first respondent was in effective possession and enjoyment of the schedule land and he leased out the same to this respondent under a lease letter dated 11.6.1985 on condition of paying to the first respondent every year 75 bags of Paddy and 4 bundles of hay. Respondent No.2 had been in possession and enjoyment of the land paying maktha Paddy and hay as stipulated in the lease letter. The Will set up by the petitioner was not true and valid. Respondent No.1 had never been the cultivating tenant in respect of the petition schedule land. Respondent No.1 developed animosity towards the second respondent during last part of 1986, colluded with his brother, the petitioner, prevailed upon him to file petition seeking eviction on false and untenable grounds. Thereupon, respondent No.2 was constrained to file a petition in A.T.C.No.54 of 1987 seeking declaration of his tenancy rights and an injunction restraining the petitioner and R-1 from in any way interfering with the tenancy rights of respondent No.2. The lawyer's notice dated 26.7.1986 issued to R-1 and R-2 was manipulated and collusive. The Will set up by him was not true and valid. The sub-lease set up by him was totally false and untenable. The petitioner and R-1 colluded with a view to evict him and cause wrongful loss. 13. The Primary Tribunal formulated the following point for consideration. The Will set up by him was not true and valid. The sub-lease set up by him was totally false and untenable. The petitioner and R-1 colluded with a view to evict him and cause wrongful loss. 13. The Primary Tribunal formulated the following point for consideration. "Whether the petition filed by the petitioner under Section 13 read with 16 of A.P. Tenancy Act as amended by Act 39/74 praying the court for eviction of the respondents from petition schedule land and to deliver vacant possession to the petitioner may be allowed or liable to be dismissed?" 14. Before the Primary Tribunal the following witnesses were examined. For petitioner: P.W.1: J.V. Seetharamaswamy P.W.2: J. Gopalakrishna Murthy P.W.3: B. Gangaraju P.W.4: B. Krishnamma For respondents: P.W.1: J.S.V. Haranadh R.W.2: Tuta Actutharao The under noted documents also had been marked. For petitioner: Ex.A-1/26.7.86 : Office copy of regd. Notice got issued by petitioner to the respondent No.1. Ex.A-2/ : Postal acknowledgement of R-1 Ex.A-3/ : Postal acknowledgement of R-2 Ex.A-4/20.8.86 : Regd. Notice got issued by Respondent-1's counsel to petitioner Ex.A-5/1.5.76 : Will executed by Jangam Adeyamma in favour of petitioner Ex.A-6/ : Certified copy of petition and affidavit in I.A.32/77 in T.A.24/77. Ex.A-7/ : Certified copy of counter filed by respondent in I.A.32/77 in T.A.24/77 Ex.A-8/14.11.77 : Order in I.A.32/77 in T.A.24/77 passed by Tenancy Tahsildar (certified copy) Ex.A-9/ : Certified copy of affidavit and Petition in I.A. /78 in T.A.24/77 Ex.A-10/ : Certified copy of counter in T.A.24/77 For respondents Ex.B-1/2.7.78 : Will executed by Janga Adeyamma in favour of R-1 Ex.B-2/19.10.84 : Discharged pronote showing the discharge of debt due to Andhra Bank, Kovvali by R-1 Ex.B-3/12.7.79 : Legal opinion by advocate to the Manager, Andhra Bank, Kovvali. Ex.B-4/21.7.95 : Certificate given by Andhra Bank stating that R-1 availed crop loan. Ex.B-5/18.7.95 : True copy of 10(1) Adangal relalting to Malkapuram. Ex.B-6/18.7.95 : True copy of No.3 adangal for fasli 1403. Ex.B-7/ : Bunch of true copies of No.2 adangals (five in number). Ex.B-4/21.7.95 : Certificate given by Andhra Bank stating that R-1 availed crop loan. Ex.B-5/18.7.95 : True copy of 10(1) Adangal relalting to Malkapuram. Ex.B-6/18.7.95 : True copy of No.3 adangal for fasli 1403. Ex.B-7/ : Bunch of true copies of No.2 adangals (five in number). The Primary Tribunal came to the conclusion that Ex.B-1 had been forged for the purpose of litigation and to defeat the rights of the petitioner in A.T.C. and Ex.A-5 had been duly proved and accordingly allowed the A.T.C. with costs directing respondents 1, 3 and 4 to deliver vacant possession of the petition schedule property within one month from the date of order i.e., 9th day of August 1996. 15. As already aforesaid respondent No.1 and also respondents 3 and 4 in the A.T.C. carried the same by way of appeals A.T.A.No.101 of 1996 and A.T.A.No.103 of 1996 on the file of the Appellate Tribunal and the Appellate Tribunal while reversing the order made by the Special Officer allowed A.T.A.No.101 of 1996 and dismissed the A.T.C.No.103 of 1996. 16. Now, the question to be considered in the present civil revision petition is as hereunder. "Whether the findings recorded by the Appellate Tribunal while deciding A.T.A.No.101 of 1996 and A.T.A.No.103 of 1996 reversing the order made in A.T.C.No.37 of 1986 to be disturbed or to be confirmed in the facts and circumstances of the case?" 17. The respective pleadings of the parties, the findings recorded by the Primary Tribunal and the Appellate Tribunal in brief, and the evidence available on record had been referred in brief already. 18. Section 13 of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956, deals with termination of tenancy. Section 13 (e) specifies 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 has willfully denied the landlord's title to the land. 19. In the light of this ground it may be that the Tenancy Tribunal may also go into the question relating to the willful denial of landlord's title to the land. Section 2 of the Act deals with definitions. 19. In the light of this ground it may be that the Tenancy Tribunal may also go into the question relating to the willful denial of landlord's title to the land. Section 2 of the Act deals with definitions. Section 2(f) of the Act specifies unless the contest otherwise requires "landlord" means the owner of holding or part thereof who is entitled to evict the cultivating tenant from such holding or part and includes the heirs, assignees, legal representatives of such owner or person deriving rights through him. 20. In the light of the respective pleadings of the parties and also the evidence adduced by the parties, the dispute appears to be relating to the title of the subject matter of A.T.C. The petitioner in A.T.C. is asserting the title by virtue of Ex.A-5 and the first respondent is asserting the title by virtue of Ex.B-1. No doubt, certain findings had been recorded relating to the validity of Ex.A-5 and Ex.B-1 by the Primary Tribunal and also by the Appellate Tribunal. Strong reliance was placed on the decision of the Full Bench of this Court in Sangubhotla Venkatramaiah v. Kallu Venkataswamy and others1 wherein the Full Bench while dealing with the principles relating to exclusion of the jurisdiction of the civil court observed as hereunder. "The principles relating to the exclusion of the jurisdiction of Civil Courts by statutory Tribunals are fairly well settled. The exclusion of the jurisdiction of a Civil Court from entertaining a suit of a civil nature may be expressed or implied. Where a special Tribunal is created by an Act of Legislature for the purpose of determining the rights created by the statute and finality is given to the orders of the Tribunal, the jurisdiction of the Civil Court must be considered to be excluded with regard to those matters. But where the subject matter of the suit falls outside the exclusive jurisdiction of the Special Tribunal or where the relief sought in the suit is one which the Special Tribunal is incapable of granting, the jurisdiction of the Civil Court is not ousted merely because the question which has to be incidentally but necessarily decided is a question within the competence of the Special Tribunal. The forum has to be determined by the plaint. The forum has to be determined by the plaint. If the allegations in the plaint and the reliefs sought do not bring the action within the jurisdiction of the Special Tribunal there is no reason to exclude the Civil Court from trying the action merely because the defence put forward involves the adjudication of matters within the competence of the Special Tribunal. Of course, it is always open to a defendant to show that the allegations in the plaint are a mere camouflage to circumvent the jurisdiction of the Special Tribunal. Where the Court is satisfied that the plaint is but a trick to invoke the jurisdiction of the Civil Court and to oust the jurisdiction of the Special Tribunal the Civil Court will naturally dismiss the suit. We do not propose to refer to the legion of cases on the question of the exclusion of the jurisdiction of the Civil Court. We will confine our consideration to cases which arose under the provisions of the Estates (Abolition and Conversion in to Ryotwari) Act." 21. The counsel representing first respondent placed strong reliance on the decision in Penmetsa Suryanarayana Raju Vs. Kalidindi Appala Narasu2 wherein at para 25 it was observed as hereunder. "In Beni Chand v. Kamla Kunwar, AIR 1977 SC 63 , the Apex Court held as follows: "by attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by Section 63(C) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document." 22. When specifically the title had been denied by the first respondent in the A.T.C. when both the contesting parties, the petitioner and first respondent in A.T.C. being brothers and claiming the property through mother, who is no more, and especially in the light of the fact that there are certain other heirs also, this question may have to be agitated and decided by competent Civil Court between the parties. Even if Section 13 (e) of the Act to be taken into consideration, it cannot be said that the findings recorded by the Appellate Tribunal in any way can be found fault in the peculiar facts and circumstances, especially, in the light of the close relationship between the parties. It is made clear that this Court is not inclined to express any opinion relating to the merits and demerits. Inasmuch as the parties are putting forth rival claims basing on two Wills Ex.A-5 and Ex.B-1, let the parties agitate their rights, if any, before a competent Civil Court in this regard. 23. With the above observation, the civil revision petition shall stand dismissed. In view of the close relationship between the parties, the parties to bear their own costs.