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Andhra High Court · body

2009 DIGILAW 628 (AP)

Kotnala Nagaratnam v. Nainala Madhavarao

2009-09-10

L.NARASIMHA REDDY

body2009
Judgment : The petitioner filed A.T.C.No.62 of 1993, before the Special Officer-cum-Principal Junior Civil Judge, Razole, against the respondents, in respect of Ac.0.70 cents of land, in survey No.184/2A of Mamidikunduru Village, East Godavari District. She pleaded that the 1st respondent is her tenant, and he sub-leased the land to the 2nd respondent, without any authority. It was also alleged that the maktha for the land was not paid from the years 1991-92 onwards. Accordingly, she prayed for eviction of both the respondents. The 1st respondent remained ex parte, and the ATC was contested by the 2nd respondent alone. He denied the allegation, as to sub-lease, and pleaded that he is the tenant. The allegation, as to default in payment of rent was also denied. Through its order, dated 31.08.1998, the trial Court allowed the ATC and ordered eviction of the respondents. The 2nd respondent filed A.T.A.No.85 of 1998 before the District Judge, East Godavari. The appeal was allowed through judgment, dated 13.09.2004. Hence, this revision. Sri M.Ram Mohan, learned counsel for the petitioner, submits that the trial Court recorded specific findings to the effect that the allegation as to sub-lease remained unrebutted and there was default in payment of rent, and that the said findings were reversed by the lower Appellate Court, without any basis. He contends that the very fact, that the decree passed by the Court of Senior Civil Judge, Razole, in O.S.No.18 of 1993, for recovery of arrears of rent, became final, discloses that the allegation, as to non-payment of rent, stood proved, and there was no basis for the lower Appellate Court in interfering with the order passed by the trial Court. Sri T.V.S.Prabhakar Rao, learned counsel for the 2nd respondent, on the other hand, submits that his client is the actual tenant and that there was no sub-lease in his favour. Learned counsel further submits that the jural relationship between the parties can be decided, only in the proceedings instituted under the A.P. (Andhra Area) Tenancy Act and not in a civil suit. The petitioner initially purchased an extent of Ac.0.50 cents in the year 1969, and three years thereafter, she purchased another extent of Ac.0.20 cents. She specifically pleaded that the 1st respondent is sub-tenant. The petitioner initially purchased an extent of Ac.0.50 cents in the year 1969, and three years thereafter, she purchased another extent of Ac.0.20 cents. She specifically pleaded that the 1st respondent is sub-tenant. It was urged that the maktha for Ac.0.50 cents was 6 bags and when the extent became Ac.0.70 cents, it was enhanced to 9 bags of paddy, per year, payable by 15th January of each year. A further plea was taken to the effect that, the rent for the second crop was 3 bags more, payable by 30th April of each year. The 1st respondent was said to have paid the rent, up to the year 1990-91, and that without the consent of the petitioner, he is said to have sub-let the land, to the 2nd respondent. The 1st respondent remained ex parte and the ATC was contested by the 2nd respondent alone. He pleaded that he has been the tenant of the petitioner, for the past 15 years. Admittedly, he did not rely upon any written document. The oral and documentary evidence adduced by him is very scanty. It did not have any bearing upon the proof of tenancy with the petitioner. Assuming that the 2nd respondent is the tenant of the petitioner, he was under obligation to prove the payment of rents from 1991-92 onwards, when there is allegation, as to default in payment of the same. Apart from seeking eviction of the respondents, from the land, on the ground pleaded in the A.T.C., the petitioner instituted O.S.No.18 of 1993 in the Court of Senior Civil Judge, Razole, against the respondents, for recovery of rent. That suit was decreed and the said decree is said to have become final. The trial Court took this as one of the factors in dealing with the aspect of default in payment of rent, into account. The lower Appellate Court interfered with the finding, on the ground that the observations made in a civil suit, cannot have the effect of determining the jural relationship of tenant and landlord. The approach of the lower Appellate Court is erroneous. Had the A.T.C. been filed only for the purpose of determination of jural relationship, the observation made by the lower Appelalte Court would certainly have been relevant. In addition to raising the plea of sub-lease, the petitioner prayed for eviction, on the ground of default in payment of rent. The approach of the lower Appellate Court is erroneous. Had the A.T.C. been filed only for the purpose of determination of jural relationship, the observation made by the lower Appelalte Court would certainly have been relevant. In addition to raising the plea of sub-lease, the petitioner prayed for eviction, on the ground of default in payment of rent. The 1st respondent remained ex parte. The 2nd respondent did not plead any independent right to remain in possession of the land, otherwise than in the capacity of a tenant. Once he pleaded, or admitted, that he is the tenant, in respect of the land, he was under obligation to prove the payment of rent, or disprove the allegation as to default. In the context of default, the decree passed in O.S.No.18 of 1993 would certainly become relevant. There would have been necessity for the petitioner to prove that the 2nd respondent is her tenant, had the latter pleaded independent right. When the 2nd respondent has taken upon himself the liability to pay the rent, the default, established in different set of proceedings, would certainly become relevant. Therefore, the view taken by the lower Appellate Court cannot be sustained in law. The C.R.P. is accordingly allowed, and the order under revision is set aside. As a result, the order of eviction passed by the trial Court shall hold good. The 2nd respondent is granted time till the harvest of the crop, if any, existing over the land. There shall be no order as to costs.