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2009 DIGILAW 73 (AP)

Bodapati Ramanamma v. Chilla Hanumantha

2009-02-16

GODA RAGHURAM

body2009
ORDER These two revisions preferred under Article 227 of the Constitution present an identical issue for consideration and are thus therefore considered and disposed of by this common order. 2. These revisions are directed against the two orders dated 28-02-2008 of the Court of the District Judge, Ongole in ATA Nos. 3 and 4 of 2007 confirming the orders of the Special Officer, Tenancy Tribunal-cumPrincipal Junior Civil Judge, Ongole ('the Tribunal') dated 23-01-2007 in ATC Nos.5 and 6 of 2004. 3. The respondent herein filed the applications (ATC Nos.5 and 6 of 2004) before the Tribunal under Section 13( 1) of the Andhra Pradesh (Andhra Area) Tenancy Act (for short 'the Act') seeking eviction of the revision petitioner and another (in A TC No.5/04); and the revision petitioner (in ATC No.6/04), from the plaint schedule property. 4. The respondent claimed before the Tribunal that he is the absolute owner of the plaint schedule property; Bodapati Yellaiah (ATCNo.5/04) was the original tenant; and Bodapati Venkatesralu was the original tenant (in ATC No.6/04); after the death of the original tenant no one exercised option to continue as a tenant in the place of the original tenant as his legal heir; the respondent was unlawfully continuing in the schedule property without his consent and also failed to pay the rents. It was also pleaded that he retired from service as an Agricultural Scientist and required the property for his personal cultivation. 5. The revision petitioner as the respondent denying the allegations. 6. The Tribunal (in ATC No.5/04) on consideration of the oral and documentary evidence on record concluded that the respondent-revision petitioner herein had committed default in the payment of makta (rent) and accordingly ordered the revision petitioner to vacate the petition schedule property and deliver vacant possession of the same to the petitioner. 7. The Tribunal (in ATC No.6/04) held that the revision petitioner had herself testified that she did not inform the respondent herein in writing that she is continuing as tenant of the schedule property as legal heir of her late husband Venkateswarlu; that she committed willful default in payment of makta; and that the owner requires the property bona fide for his personal cultivation. Accordingly, eviction of the revision petitioner was ordered. 8. Aggrieved thereby the revision petitioner filed the appeals AT A Nos.3 and 4 of 2007. The lower appellate court dismissed the appeals. Accordingly, eviction of the revision petitioner was ordered. 8. Aggrieved thereby the revision petitioner filed the appeals AT A Nos.3 and 4 of 2007. The lower appellate court dismissed the appeals. In AT A NO.3/07 the lower appellate court held that the revision petitioner was disentitled to claim that she was a tenant of the respondent entitling her to tenancy rights in perpetuity as there was no registered lease deed duly stamped as statutorily required; there was no renewal of lease as mandated under Section 10(3) of the Act; after the death of her father-in-law Yellaiah in 1990 the revision petitioner neither exercised an option by an application to continue as a tenant nor was she entitled to such an entitlement as she is not a lineal descendant of the original tenant Yellaiah. She was his daughter-in-law and Yellaiah predeceased the revision petitioner's husband Venkteswarlu who did not exercise option to claim heritable rights and as such the petitioner is not entitled to claim the status of a tenant. The lower appellate court also held that the landlord respondent herein had established bona fide need for personal cultivation and further that the revision petitioner had committed default. 9. Similarly in AT A No. A/07 the lower appellate court concluded that the revision petitioner was not entitled to heritable rights of tenancy; had committed default and that the respondent-landlord had established bona fide requirement of the property for personal cultivation. 10. Accordingly both the appeals were dismissed. These revisions are preferred thereupon. 11. Before this court Mr. Sudheer Kumar, the learned counsel for the revision petitioner (though several grounds are pleaded in the revision) has urged the singular plea that since the Tribunal and the lower appellate court had characterized the revision petitioner as a trespasser and not a tenant, the orders of eviction passed by the Tribunal as confirmed by the lower appellate court are unsustainable as being patently without jurisdiction. 12. The learned counsel for the petitioner however admitted that such plea of jurisdiction was neither raised before the Tribunal nor before the lower appellate court; but being a question of law should be permitted to be urged before this court in these revisions. 13. 12. The learned counsel for the petitioner however admitted that such plea of jurisdiction was neither raised before the Tribunal nor before the lower appellate court; but being a question of law should be permitted to be urged before this court in these revisions. 13. It requires to be noticed that the respondent in seeking eviction of the revision petitioner, in his application before the Tribunal made alternative pleas: (a) that after the death of the original tenant the revision petitioner did not exercise the option to continue as a tenant; (b) had committed default in payment of rent for the year 2002-03 and (c) that he requires the property for his personal cultivation. He also pleaded that there was an agreed makta (Rs.463/- p.a. in ATC NO.5/04 and RS.150/- p.a. in A TC No.6/04, respectively) payable by Magha Bahula Amavasya; that the revision petitioner was irregular in payment of rents and had committed default in 2002-03. He further pleaded that the revision petitioner was continuing unlawfully without consent apart from pleading bona fide requirement of the land for personal cultivation and claimed eviction. 14. In the counter filed the revision petitioner after an omnibus denial of the land owner's assertions, clearly asserted that she was sending makta by MOs which were received by the respondent herein till the end of 2001-02. The matka sent for 2002-03 was refused by the landowner with a view to 42 deprive her of tenancy rights and therefore she did not commit any default. In the affidavit in chief-examination filed on behalf of the respondent land owner, he pleaded inter alia that the revision petitioner failed to pay makta regularly and he received the same without prejudice to his rights and that she defaulted in paying mukta for 2002-03. While the revision petitioner in her testimony as R.W.1 claimed to be the tenant and to be regular in paying makta, further testified that the makta for 2002-03 was also sent by her but was refused by the land owner. 15. The entire material on record including the legal notice got issued by the land owner, the respective pleadings before the Tribunal and the testimony of the respective parties are on the premise that the revision petitioner was a tenant. 15. The entire material on record including the legal notice got issued by the land owner, the respective pleadings before the Tribunal and the testimony of the respective parties are on the premise that the revision petitioner was a tenant. The alternate plea of the respondent-land owner was that the petitioner was not a perpetual tenant having failed to exercise the option to continue in tenancy after the death of the original tenant and also for not being a lineal descendant of the original tenant. While the plea of the land owner was that the revision petitioner used to pay makta irregularly and committed default for 2002-03, the plea in defence was that she was regular in paying the makta and did not commit default. 16. In the above circumstances there is no clear factual foundation for the contention on the point of jurisdiction that the revision petitioner not being a tenant of the respondent neither the Tribunal nor the lower appellate Court had jurisdiction under the provisions of the Act to adjudicate upon the respondent-land owner's claim for eviction of the revision petitioner. 17. Section 9 of the Code of Civil Procedure 1908 enacts (omitting the explanation which is not relevant for our purpose): the Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature except suits of which their cognizance is either expressly or impliedly barred. 18. The claim of the respondent-land owner that the revision petitioner had committed default in payment of makta and therefore is liable for eviction, is a claim of a civil nature normally triable by a suit before a civil court of competent jurisdiction. The question however is whether the Tribunals under the provisions of the Act have exclusive jurisdiction over such a lis and therefore the jurisdiction of the civil court is barred by necessary implication. 19. Section 2(c) of the Act defines 'cultivating tenant' as a person who cultivates... ... Sections 4 and 5 of the Act deal with the agreement regarding the form of tenancy and whether the rents shall be paid in the form of share in the produce or as a fixed rent in kind or cash; and that the landlord and the tenant may agree among themselves with regard to the quantum of rent payable for a holding subject to the maximum rent specified in Section 3, respectively. Section 10 enumerates the rights of cultivating tenants and subsection (1) enjoins that every lease subsisting at the commencement of Andhra Pradesh (Andhra Area) Tenancy (Amendment) Act 1974 ('the Amendment Act 1974') shall be deemed to be in perpetuity. Sub-section (2) of Section 10 enacts that every lease entered into between a landlord and a cultivating tenant on or after the Amendment Act 1974 shall be for a minimum period of six years, shall be in writing, shall specify the holding, its extent and the rent payable therefor with such other particulars as may be prescribed; and that the stamp and registration charges for every such deed shall be borne by the landlord and the cultivating tenant in equal shares. Subsection (3) enjoins that on the expiration of the period of lease referred to in subsection (2) every such lease shall be renewable successively for a further minimum period of six years at a time, subsection (5) of Section 10 enacts that all rights of cultivating tenants under this Section shall, subject to the provisions of Sections 12 and 13, be heritable. While Section 12 sets out provisions for resumption of possession of land by a landlord for personal cultivation, Section 13 sets out the circumstances and the limitations subject to which the landlord is entitled to terminate the tenancy and evict the cultivating tenant. Section 17 enacts over-riding effect to the provisions of the Act qua any inconsistent provision in any pre-existing law, custom, usage, agreement or decree or order of a court. 20. Section 16 enacts provisions for adjudication of disputes and for appeals. Sub-section (1) provides that any dispute arising under the Act between a landlord and the cultivating tenant... ... be decided by the Special Officer .... .... Subsection (2) provides an appellate remedy before the District Judge having jurisdiction, against any order passed by the Special Officer under the Act and also enacts finality to an appellate order. 21. Sub-section (1) provides that any dispute arising under the Act between a landlord and the cultivating tenant... ... be decided by the Special Officer .... .... Subsection (2) provides an appellate remedy before the District Judge having jurisdiction, against any order passed by the Special Officer under the Act and also enacts finality to an appellate order. 21. Considering substantially similar provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act 1948, a Constitution Bench of the Supreme Court in Addanki Tiruvenkata Thata Oesika Charyulu (since deceased) and after him his legal representatives v. State of Andhra Pradesh and another1 held that a provision setting up a hierarchy of judicial tribunals for the determination of the question on which the applicability of the Act depends is sufficient in most cases for inferring that the jurisdiction of the civil court to try the same matter is barred. 22. It is therefore axiomatic that the jurisdiction of the civil court under Section 9 CPC is barred in respect of issues calling Section 16 of the Act in view of the non obstante provision in Section 17 and the finality conferred on the Appellate Tribunal under Section 16(2) of the Act. 23. It requires to be noticed that there appears a subtle distinction. While under Section 2(c) of the Act a tenancy may arise even under an implied tenancy agreement, Section 10(2) enjoins every lease between a landlord and cultivating tenant after the commencement of the Amendment Act 1974, to be in writing, duly stamped and registered. It is perhaps the legislative's intendment qua the provisions of Section 10 that only leases (entered into after the commencement of the Amendment Act 1974) shall be heritable if in conformity with the provisions of Section 10(2). 24. In the case on hand the courts below have concurrently found that the revision petitioner was not entitled to a claim for heritable or perpetual tenancy rights under Section 10 of the Act, a finding whose correctness is not canvassed before this Court as the learned counsel for the petitioner has limited the challenge to the orders under revision only on the ground of jurisdiction. 25. 25. From the pleadings and other material on record it is possible to infer that the respondent-land owner was asserting an implied tenancy between him and the revision petitioner though not of a status entitling the revision petitioner to perpetual and heritable rights of tenancy under Section 10 (2) of the Act. Since the jurisdictional issue is essentially fact based, in the circumstances, the facts as apparent from the material on record including the pleadings do not permit a clear inference that either the respondent-land owner had asserted that the revision petitioner was not a cultivating tenant within the meaning of Section 2(c) of the Act nor did the revision petitioner assert such a claim; and no issue was framed on the jurisdictional aspect. This court is of the considered view that in the circumstances of this case, the determination by the Tribunal or the confirmation of the said determination by the lower appellate Court cannot be invalidated on the ground that there was a patent lack of jurisdiction. No other issue is urged on behalf of the revision petitioner. 26. For the aforesaid reasons and on the aforesaid analysis, the revisions must fail and are accordingly dismissed. There shall however be no order as to costs.