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Andhra High Court · body

2009 DIGILAW 616 (AP)

Pendyala Sudha Rani v. Basava Janakiramayya

2009-09-07

L.NARASIMHA REDDY

body2009
Common Order: Both the revisions are filed by the same petitioner and against the same respondent. Hence, they are disposed of through a common order. For the sake of convenience, the parties are referred to, as arrayed in C.R.P.No.1458 of 2006. The father of the petitioner, by name, Ram Mohan Rao owned Ac.3.50 cents of land in Penumalla Village of East-Godavari District. Out of that, he is said to have gifted an extent of 66 cents under a document dated 17-10-1989, and sold 84 cents, under a sale deed dated 23-10-1989, in favour of the petitioner. The respondent was said to be the tenant over the said AC.1.50 cents of land, ever since 1985, and the tenancy was attorned to the petitioner, in the year 1989. The respondent filed A.T.C.No.2 of 1995 before the Special Officer-cum-Principal Junior Civil Judge, Kakinada, against the petitioner and two others, for a declaration, that he is a cultivating tenant, in respect of the land, and for enforcement of his rights of preemptive purchase, in the event of the land being sold. The petitioner, in turn, filed A.T.C.No.5 of 1996, in the same forum, for eviction of the respondent. She pleaded that the maktha was 39 bags of paddy per year, and the respondent committed default in payment of maktha for the years 1992-93, 1993-94 and 1994-95. Both the cases were tried together and through common order dated 23-07-2001, the trail Court allowed the A.T.C.No.2 of 1995 and dismissed A.T.C.No.5 of 1996. The petitioner filed A.T.A.Nos.40 and 44 of 2001, respectively, before the Appellate Authority-cum-III Additional District Judge, Kakinada, against the said orders. The appeals were dismissed through a common order dated 14-09-2005. C.R.P.1065 of 2006 arises out of A.T.C.No.2 of 1995, and C.R.P.1458 of 2006, out of A.T.C.No.5 of 1996. Sri N.V. Anantha Krishna, learned counsel for the petitioner, submits that the specific case of his client was, that the respondent committed default in payment of maktha for the years 1992-93 and 1993-94, and for the year 1994-95, part of the maktha was paid in the form of cash, representing the cost of 15 bags of paddy. Learned counsel contends that though the respondent pleaded that the maktha was paid, he did not adduce any evidence, much less proved the payment of the same. Learned counsel contends that though the respondent pleaded that the maktha was paid, he did not adduce any evidence, much less proved the payment of the same. He contends that the Courts below did not apply the settled principles of evidence, in relation to these controversies, and have committed factual and legal error in dismissing A.T.C.No.5 of 1996. Sri M.S.R. Subrahmanyam, learned counsel for the respondent, on the other hand, submits that the petitioner was not in the habit of issuing any receipts, and through cogent oral and documentary evidence, the respondent proved that the rent for the relevant period was paid. The tenancy of the respondent, vis-à-vis the land was commences at a time, when it was owned by the father of the petitioner. There was no dispute about that fact. Further, even according to the respondent, the tenancy was attorned in favour of the petitioner. The petitioner did not seriously dispute that the respondent is her tenant. The very fact that she pleaded, that the respondent committed default in payment of rent, discloses that she recognized him to be her tenant. Therefore, no exception can be taken to the order of the trail Court in allowing A.T.C.No.2 of 1995, and confirmation of the same by the lower Appellate Court in A.T.A.No.40 of 2001. In that view of the matter, C.R.P.No.1065 of 2006 deserves to be dismissed. As a consequence, the respondent is declared as the tenant, and that he shall have a right of pre-emptive purchase, in the event of the sale of the land, by the petitioner, during the subsistence of tenancy. A.T.C.No.5 of 1996 was filed with a specific plea that the respondent committed default in payment of rent for the three years, mentioned above. When the respondent sent a cheque dated 06-02-1995, for a sum of Rs.4,760/-, being the cost of 15 bags of paddy, claiming to be the maktha for the year 1994-95, together with a notice, marked as Ex.B-3, the petitioner gave immediate reply, Ex.B-4, stating that the maktha is 39 bags. To this, a rejoinder was issued by the respondent in Ex.B-5. Once the tenancy is not disputed, and the landlord alleges that the tenant committed default in payment of rent, the burden squarely rests upon the tenant, to prove the payment thereof. To this, a rejoinder was issued by the respondent in Ex.B-5. Once the tenancy is not disputed, and the landlord alleges that the tenant committed default in payment of rent, the burden squarely rests upon the tenant, to prove the payment thereof. The reason is that the landlord cannot be expected to prove a negative fact, stating that the rent was not paid. Proof, if, at all, would exist for payment, and not for non-payment. Assuming that the petitioner did not issue receipts, whenever rent was paid, the respondent could have adduced other relevant evidence, to establish the manner in which, the rent was paid. The oral and documentary evidence adduced by him, is absolutely of no use. He did not state on what date and in what manner he paid the rents for the years 1992-93 and 1993-94. The trial Court as well as the lower Appellate Court wrongly placed the burden upon the petitioner, to prove non-payment of rent. Further, both the Courts have drawn inference against the petitioner on the ground that, had the rent, not been paid, the petitioner would have instituted proceedings without any delay. Reference in this context is made, to a suit filed by the petitioner, for recovery of the maktha, for the three years. The said inference is totally without any basis. Normally, any well-advised land owner, in the present state of affairs, would wait, for tenant, to commit default for a substantial period, so that it can be pleaded as a ground for eviction. Even if no suit was filed, for recovery of arrears of rent, the tenant would not be relieved of his burden or obligation to prove the payment thereof, if in fact, it was paid. Before this Court also, the learned counsel for the respondent is not able to establish as to how and in what manner the rent for the said period was paid. There is a serious dispute about quantum of rent also. The petitioner pleaded that even while the land was owned by her father, the respondent was paying the maktha at the rate of 39 bags of paddy, per year. In case, the respondent wanted to dispute it, he could have adduced evidence as to the quantum at which, the rent was paid for the earlier years. The petitioner pleaded that even while the land was owned by her father, the respondent was paying the maktha at the rate of 39 bags of paddy, per year. In case, the respondent wanted to dispute it, he could have adduced evidence as to the quantum at which, the rent was paid for the earlier years. The record discloses that there are allegations to the effect the father of the petitioner was inimical to her and was siding with the respondent. Truth or otherwise thereof, apart, it was open to the respondent to prove that the quantum of rent was not 39 bags per year. Therefore, the inescapable conclusion is that the respondent committed default in payment of rent, in its entirety, for the years 1992-93, 1993-94, and partly for the year 1994-95, and thereby, he incurred liability, to be evicted from the land. Hence, C.R.P.No.1458 of 2006 is allowed, and the orders under revision are set aside. Consequently, A.T.C.No.5 of 1996 is allowed, and the eviction of the respondent from the suit schedule property is ordered. It is directed that the respondent shall be entitled to harvest the existing crop, if any, over the land. C.R.P.No.1065 of 2006 is dismissed. There shall be no order as to costs.