Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 295 (AP)

S. Vijayalakshmi v. Neerukonda Subba Rao

2020-04-24

CHEEKATI MANAVENDRANATH ROY

body2020
ORDER : 1. Since the parties in both these Civil Revision Petitions are one and the same and as both these petitions arise out of the orders passed for eviction of the tenant on the ground of committing default in payment of maktha, both these Civil Revision Petitions were heard together and they are being disposed of by this common order. 2. C.R.P.No.2450 of 2011 arises out of the order dated 23.11.2010 passed in A.T.A.No.8 of 2006 on the file of the III Additional District Judge, Kakinada, East Godavari District, whereunder, the order dated 21.03.2006 passed in ATC No.18 of 1999 on the file of the Special Officer-cum-Principal Junior Civil Judge, Kakinaga, for eviction was confirmed. ATC No.18 of 1999 was filed by the petitioner-landlord for eviction of the respondent, who is the tenant, from the petition schedule property on the ground that he committed default in payment of maktha for the years 1997-98 and 1998-99. The said ATC No.18 of 1999 was allowed and the tenant was ordered to be evicted from the petition schedule property. Appeal preferred thereagainst in ATA No.8 of2006 on the file of the III Additional District Judge, Kakinada, was dismissed on 23.11.2010 by the impugned order. Aggrieved thereby, CRP No.2450 of 2011 is preferred questioning the legality and validity of the said order. 3. C.R.P.No.2013 of 2011 arises out of the order dated 23.11.2010 passed in A.T.A.No.7 of 2010 on the file of the III Additional District Judge, Kakinada, East Godavari District, whereunder, the order dated 30.11.2009 passed in ATC No.1 of 2005 on the file of the Special Officer-cum-Principal Junior Civil Judge, Kakinaga, for eviction was confirmed. ATC No.1 of 2005 on the file of the Special Officer-cum-Principal Junior Civil Judge, Kakinada, East Godavari District, was filed by the petitioner-landlord for eviction of the respondents-tenants, from the petition schedule property on the ground that they committed default in payment of part of maktha for the years 1999-2000, 2003-2004 and the entire maktha due for the year 2000-2001. The said ATC No.1 of 2005 was allowed and the tenants were ordered to be evicted from the petition schedule property. Appeal preferred thereagainst in ATA No.7 of 2010 on the file of the III Additional District Judge, Kakinada, was dismissed on 23.11.2010 by the impugned order. Aggrieved thereby, CRP No.2013 of 2011 is preferred questioning the legality and validity of the said order. 4. Appeal preferred thereagainst in ATA No.7 of 2010 on the file of the III Additional District Judge, Kakinada, was dismissed on 23.11.2010 by the impugned order. Aggrieved thereby, CRP No.2013 of 2011 is preferred questioning the legality and validity of the said order. 4. The petition schedule property in both these cases is one and the same and as noticed supra the parties are also one and the same. Parties will be referred to as they are arrayed in the trial Court. 5. Facts germane to dispose of these Civil Revision Petitions may briefly be stated as follows: 6. One Neerukonda Lakshmipathi Rao is the original owner of the petition schedule property. During his life time, he has leased out the petition schedule property to the respondent-tenant on payment of maktha of 12 Kata bags of paddy payable on or before Makara Sankranthi. After the demise of the original owner Neerukonda Lakshmipathi Rao, the respondent-tenant continued to be the cultivating tenant of the petition schedule property. Neerukonda Lakshmipathi Rao got two sons by name Surya Rao and the petitioner-Subba Rao and four daughters. They are his legal heirs. After the demise of Neerukonda Lakshmipathi Rao, initially his elder son Surya Rao used to collect the maktha from the respondent-tenant till the year 1996-97. Thereafter, it appears there was a family settlement among the legal heirs of Neerukonda Lakshmipathi Rao. The petitioner, who is his second son, got the petition schedule property to his share in the said family settlement. Therefore, he is entitled to collect maktha from the respondent-tenant from the year 1997 onwards, as he became the absolute owner of the petition schedule property. In the month of June, 1997, the petitioner and his brother informed the respondent-tenant that the petition schedule property was allotted to the petitioner and requested the respondent to pay maktha to the petitioner in respect of the petition schedule property from the year 1997 onwards which becomes payable by 15.01.1998. The respondent failed to pay the maktha to the petitioner payable for the years 1997-98 and 1998-99 and thereby committed default in payment of maktha to the petitioner for the aforesaid two years. The respondent failed to pay the maktha to the petitioner payable for the years 1997-98 and 1998-99 and thereby committed default in payment of maktha to the petitioner for the aforesaid two years. The respondent filed ATC No.77 of 1997 on the file of the Special Officer-cum-Principal Junior Civil Judge, Kakinada, for declaration of his tenancy rights alleging that the brother of the petitioner by name Surya Rao is the owner of the petition schedule property and the petitioner purchased the said land from his brother Surya Rao and the said sale is against to the provisions of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956, (for short the “Act”) and it is not valid. The petitioner was added as 3rd respondent in the said ATC No.77 of 1997. The brother of the petitioner filed counter in the said petition and stated that he has nothing to do with the petition schedule property and that the property was allotted to the petitioner and he alone is entitled to receive the maktha payable from the year 1997-98 onwards. The Interlocutory Applications filed by the respondent in the said petition seeking permission to deposit the value of the 12 Kata bags of paddy for the year 1997-98 into the Court were dismissed refusing to grant any such permission. The said petition in ATC No.77 of 1997 was ultimately dismissed. 7. The petitioner issued a legal notice to the respondent, dated 03.01.1999, requesting him to pay the arrears of maktha for the years 1997-98 and 1998-99. The respondent issued a reply notice with untenable allegations. As he did not pay the arrears of maktha for the aforesaid two years, the petitioner filed a suit for recovery of the arrears of the said maktha. The same was decreed. Therefore, as the respondent failed to pay the maktha payable for the aforesaid two years, the petitioner filed ATC No.18 of 1999 seeking eviction of the respondent from the petition schedule property on the ground that he committed default in payment of maktha for the aforesaid two years. 8. Similarly, on the ground that he failed to pay part of the maktha due for the years 1999-2000, 2003-2004 and entire maktha for the year 2000-2001, the petitioner filed ATC No.1 of 2005 seeking eviction of the respondent from the petition schedule property on the ground of default in payment of maktha. 9. 8. Similarly, on the ground that he failed to pay part of the maktha due for the years 1999-2000, 2003-2004 and entire maktha for the year 2000-2001, the petitioner filed ATC No.1 of 2005 seeking eviction of the respondent from the petition schedule property on the ground of default in payment of maktha. 9. Both the said two petitions were resisted by the respondent-tenant. In A.T.C.No.18 of 1999, while admitting that he is the tenant in respect of the petition schedule property and Neerukonda Lakshmipathi Rao, who is the father of the petitioner, is the original owner of the property and he inducted him as tenant in respect of the petition schedule property, he has pleaded that after the demise of Neerukonda Lakshmipathi Rao that his elder son Surya Rao used to collect maktha from him and as such, there is no landlord and tenant relationship between the petitioner and the respondent. He pleaded that when he has paid maktha for the year 1997-98 by way of draft, it was returned, so he filed a petition in the Court seeking permission to deposit the maktha in the Court. He further pleaded that the petitioner filed Small Cause No.70 of 1999 claiming to be the owner of the petition schedule property and sought decree for recovery of the maktha for the years 1997-98 and 1998-99 from him, and the respondent came to know that the petitioner purchased the petition schedule property from his brother Surya Rao and the said sale is not valid and as Surya Rao used to receive makthas from him previously, he is deemed to the landlord. He denied that he has committed default in payment of maktha for the aforesaid two years and prayed for dismissal of the petition. 10. Similarly, he also denied that he has committed wilful default in payment of maktha for the years 1999-2000, 2000-2001 and 2003-2004. It is pleaded that he has paid part of the arrears of maktha for the year 1999-2000 and 2003-2004 by way of drafts and the same were received by the petitioner and he is not liable for eviction. It is his case that as the petitioner received the drafts towards payment of arrears of maktha subsequently that it amounts to waiver of his right to seek eviction on the ground of default of payment of maktha. Therefore, he prayed for dismissal of the said petition. 11. It is his case that as the petitioner received the drafts towards payment of arrears of maktha subsequently that it amounts to waiver of his right to seek eviction on the ground of default of payment of maktha. Therefore, he prayed for dismissal of the said petition. 11. The trial Court allowed both the petitions and recorded a finding that the respondent has committed default in payment of matkha due for the years 1997-98 and 1998-99 in ATC No.18 of 1999 and thereafter, the respondent committed default in payment of part of the maktha due for the years 1999-2000, 2003-2004 and entire maktha for the year 2000-2001, in ATC No.1 of 2005, and accordingly, allowed the petition and ordered for eviction of the respondent from the petition schedule property. In ATC No.18 of 1999, the trial Court also recorded a finding that the denial of title of the petitioner, who is the landlord of the petition schedule property, by the respondent is not bona fide and valid and on that ground also he is liable for eviction. 12. Aggrieved thereby, the respondent has preferred the two appeals in ATA Nos.8 of 2006 and 7 of 2010 on the file of the III Additional District Judge, Kakinada, East Godavari District, assailing the legality and validity of the impugned orders of the trial Court. Both the appeals came to be dismissed by the impugned orders confirming the orders of the trial Court and the appellate Court also recorded a finding that the respondent has committed default of payment of maktha as held by the trial Court. 13. Aggrieved thereby, these two Civil Revision Petitions are preferred assailing the legality and validity of the orders of the appellate Court. 14. When these two Civil Revision Petitions came up for hearing before this Court, I have heard the learned counsel for the revision petitioners-tenants. None appeared for the respondent-landlord. 15. 13. Aggrieved thereby, these two Civil Revision Petitions are preferred assailing the legality and validity of the orders of the appellate Court. 14. When these two Civil Revision Petitions came up for hearing before this Court, I have heard the learned counsel for the revision petitioners-tenants. None appeared for the respondent-landlord. 15. Before considering the merits of the case, at the outset, it is relevant to note that both the trial Court and the appellate Court recorded a concurrent finding of fact that the respondent has committed default in payment of maktha for the years 1997-98 and 1998-99 in ATC No.18 of 1999 and committed default of payment of part of maktha due for the years 1999-2000, 2003-2004 and the entire maktha for the year 2000-2001, in ATC No.1 of 2005, and ordered for eviction of the respondent-tenant from the petition schedule property. In ATC No.18 of 1999, the trial Court also recorded a finding that the denial of title of the petitioner, who is the landlord, by the respondent-tenant is not valid and it also affords a ground for eviction under Section 13(e) of the Act. 16. It is an admitted fact that Neerukonda Lakshmipathi Rao is the original owner of the petition schedule property and he has inducted the respondent as a tenant in the petition schedule property on payment of yearly maktha of 12 Kata bags of paddy payable on or before Makara Sankranthi every year. After the demise of Neerukonda Lakshmipathi Rao, the property devolved on his two sons and four daughters. His elder son Surya Rao used to collect makthas till the year 1997. These are all incontrovertible facts in this case. 17. The case of the petitioner is that subsequently, there was a family settlement among the heirs of Neerukonda Lakshmipathi Rao and the petition schedule property was allotted to him in the year 1997 and he became the absolute owner of the petition schedule property and the same was informed to the respondent also requesting him to pay the maktha payable in respect of the petition schedule property to the petitioner from the year 1997 onwards. Inspite of the said request that the respondent failed to pay the maktha payable on the petition schedule property to him and committed default for the years 1997-98 and 1998-99 and also committed default in payment of part of maktha for the years 1999-2000 and 2003-2004 and full maktha for the year 2000-2001. 18. Although the respondent made an attempt to deny the title of the petitioner as a landlord of the petition schedule property and asserted that Surya Rao, the elder son of Lakshmipathi Rao, is the landlord of the petition schedule property, as he used to collect the maktha from him after the demise of Neerukonda Lakshmipathi Rao and thereby denied the title of the petitioner to the petition schedule property, as rightly held by the trial Court in ATC No.18 of 1999, the said denial of title of the petitioner to the petition schedule property is not bona fide and valid. It is significant to note here that when the respondent-tenant filed ATC No.77 of 1997 on the file of the Special Officer-cum-Principal Junior Civil Judge, Kakinada, for declaration of his tenancy rights alleging that Surya Rao alone is the owner of the petition schedule property, Surya Rao filed counter stating that he has nothing to do with the petition schedule property and the said property was allotted to the petitioner and that he is entitled to receive the maktha payable from the year 1997-98 onwards and the same is referred to in the order of the trial Court in ATC No.18 of 1999 while dealing with the pleadings of the case. The petitioner also filed Small Cause No.70 of 1999 on the file of the 1st Additional Senior Civil Judge Court, Kurnool, for recovery of the value of the maktha due for the years 1997-98 and 1998-99. In the said Suit, the elder brother of the petitioner by name Surya Rao was examined as PW.2. He deposed in the said Suit that in their family arrangement, land was allotted to the petitioner, therefore, the petitioner is the owner of the schedule land and he is entitled to receive the maktha from the respondent. The said Suit was decreed and the Court held that the petitioner is the owner of the property and in case there is a dispute among the legal heirs of Neerukonda Lakshmipathi Rao, it is in between themselves. The said Suit was decreed and the Court held that the petitioner is the owner of the property and in case there is a dispute among the legal heirs of Neerukonda Lakshmipathi Rao, it is in between themselves. Ex.A2 is the judgment passed in Small Cause No.70 of 1999 which shows that the said Suit was decreed holding that the petitioner is the landlord in respect of the petition schedule property and that the respondent is liable to pay the maktha for the years 1997-98 and 1998-99. Based on the said judgment rendered in Small Cause No.70 of 1999, the trial Court in ATC No.18 of 1999 held at page No.13 of the order as follows: “Thus, on a careful consideration of the pleadings given in S.C.No.70/99, it is clearly observed that in the family arrangement of the petitioner and his brothers, the petition schedule property fell to the share of the petitioner and the petitioner is absolute owner of the same. So, he is entitled to receive the maktha.” 19. Therefore, the denial of landlord and tenant relationship between the petitioner and the respondent, as pleaded by the respondent, is not valid and bona fide and it clearly amounts to wilful denial of landlord’s title to the land. Section 13 of the Act enumerates the grounds on which the landlord can seek eviction of the tenant. Clauses (a) to (f) of Section 13 of the Act are the grounds which are enumerated for eviction of the tenant. Clauses (a) and (e) of Section 13 are relevant to refer in this context. As per clause (a) of Section 13 of the Act, when the tenant failed to pay the rent due by him within a period of one month from the date stipulated in the lease deed, or in the absence of such stipulation, within a period of one month from the date on which the rent is due according to the usage of the locality; and in case the rent is payable in the form of a share in the produce, when the tenant has failed to deliver the produce at the time of harvest, he is liable for eviction. As per clause (e) of Section 13, when the tenant has wilfully denied the landlord’s title to the land, he is liable for eviction. 20. As per clause (e) of Section 13, when the tenant has wilfully denied the landlord’s title to the land, he is liable for eviction. 20. In the instant case, as per the findings recorded in S.C.No.70 of 1999, which is a Suit filed by the petitioner-landlord for recovery of the maktha due for the years 1997-98 and 1998-99, as per Ex.A-2 judgment, the said Suit was decreed and the competent Civil Court already held that the respondent-tenant is liable to pay arrears of maktha of two years i.e. for the years 1997-98 and 1998-99. As per the findings recorded in the said judgment, and also findings recorded by the trial Court in ATC No.18 of 1999, which was affirmed by the appellate Court, the respondent-tenant is found to have committed default in payment of arrears of maktha for the aforesaid two years and also wilfully denied the title of the landlord to the petition schedule property. Therefore, the respondent has rendered himself liable for eviction under clauses (a) and (e) of Section 13 of the Act. Even otherwise, when there are several co-sharers of the land and any one of the co-sharer is entitled to seek eviction of the tenant in a Court of law. Admittedly, the petitioner is one of the legal heirs of the original landlord and he is entitled to a share in the said property along with other legal heirs. So, even on that ground he is entitled to file a petition for eviction of the tenant on the ground of commission of wilful default in payment of maktha. 21. In the case of P. Kanti v. Boddu Paidanna @ Rambabu, 1999 (4) ALT 261 which is relied on by the trial Court in ATC No.1 of 2005, it is held that the consent of other co-owners can be implicit or otherwise. In view of the consent of wife and adopted son can be said to be implicit as there does not appear to be any clash of interest among them. Viewed from that angle, the eviction petition is maintainable by one co-owner. 22. In view of the consent of wife and adopted son can be said to be implicit as there does not appear to be any clash of interest among them. Viewed from that angle, the eviction petition is maintainable by one co-owner. 22. In fact, as the brother of the petitioner by name Surya Rao himself admitted in his evidence as PW.2 in SC No.70 of 1999 that the land was allotted to the petitioner in their family settlement, the petitioner is found to be the sole and exclusive owner of the petition schedule property as on the date of filing of A.T.Cs and in exercise of his right as owner of the said property, he is entitled to file petition for eviction. Even otherwise also, as per the settled law, he being the co-sharer is also entitled to file a petition for eviction. Viewed from any angle, the denial of landlord and tenant relationship by the respondent-tenant is not bona fide and it amounts to wilful denial of the landlord’s title to the land which is a ground for eviction under clause (e) of Section 13 of the Act. 23. As regards the default committed in payment of part of maktha for the years 1999-2000 and 2003-2004 and the entire maktha for the year 2000-2001, in ATC No.1 of 2005, is concerned also, both the trial Court and the appellate Court found that the respondent did not pay part of maktha for the years 1999-2000 and 2003-2004 and did not pay entire maktha for the year 2000-2001. It was held that the respondent paid part of maktha subsequently by way of demand drafts after the decree was passed in S.C.No.70 of 1999 which was filed for recovery of the arrears of maktha. The petitioner also received the said demand drafts and adjusted the said amounts towards part of maktha for the years 2003-2004 etc. 24. Now the respondent sought to contend that even if there is any default in payment of maktha, the subsequent receipt of the rent which was belatedly paid by the respondent to the petitioner amounts to waiver of the right of the landlord to seek eviction on the ground of default of payment of maktha. Thus, the doctrine of waiver is pressed into service in support of the claim of the respondent. 25. Thus, the doctrine of waiver is pressed into service in support of the claim of the respondent. 25. Learned counsel for the respondent-tenant placed reliance on the judgment rendered in Kurra Satyanarayana v. Ramalingeswaraswami Temple, Mudunuru, Krishna District, rep. by its E.O., 1988 (1) ALT 60, wherein while dealing with the earlier precedents on the point, the High Court held that acceptance of late payments of rents by landlord without any protest would constitute waiver of right to eviction. The ratio laid down in the said judgment cannot be applied to the present facts of the case. It is relevant to note here that the amount that was paid by the respondent towards arrears of maktha is in compliance with the decretal direction given by the competent Civil Court in the judgment and decree passed in Small Cause No.70 of 1999. Therefore, if at all any amount is paid towards maktha due subsequent to the passing of the said decree, it amounts to payment of decretal amount. So, a mere receipt of the demand drafts towards payment of decretal amount, in part satisfaction of the decree of the civil Court, cannot be construed as an amount received towards arrears of maktha. So, any amount that was paid and received in satisfaction of the decree of the Civil Court it has to be treated only as a payment made towards satisfaction of the decree and it cannot be treated as receipt of arrears of rent amounting to waiver of the right to seek eviction of the tenant on the ground of committing default in payment of rent. Therefore, there is no waiver of right by the petitioner in receiving the said demand drafts after the decree was passed and adjusting the same towards amount due towards decretal amount. Even otherwise, since the amount that was paid by demand drafts and received is only towards part of the maktha due, still as there are outstanding arrears relating to remaining part of maktha, it clearly amounts to committing default in payment of the said maktha. Therefore, viewed from any angle, default committed by the respondent is clearly established. 26. Even otherwise, since the amount that was paid by demand drafts and received is only towards part of the maktha due, still as there are outstanding arrears relating to remaining part of maktha, it clearly amounts to committing default in payment of the said maktha. Therefore, viewed from any angle, default committed by the respondent is clearly established. 26. Therefore, as both the trial Court and the appellate Court, as per the concurrent findings recorded by both the Courts, found that the respondent-tenant has committed default in payment of maktha due, this Court do not find any legal flaw or infirmity in the concurrent findings recorded by both the Courts below. The impugned judgments in both the Civil Revision Petitions are perfectly sustainable under law and they call for no interference by this Court in these two Civil Revision Petitions. 27. Resultantly, both the Civil Revision Petitions are dismissed. No costs. 28. Consequently, miscellaneous applications, pending if any, shall also stand dismissed.