wherein the plaintiff has claimed the reliefs of decree for ejectment and damages and past profits. The Division Bench held that the Tenancy Court cannot grant relief of damages and therefore the Civil Court had undoubtedly jurisdiction to entertain the suit the Tenancy Court cannot grant relief of damages and therefore the Civil Court had undoubtedly jurisdiction to entertain the suit. The relief claimed in the suit filed by the plaintiffs is similar to that claimed in Satya Pramoda (16-supra) = It is relevant to note the conduct of the appellant in this context. He has set up an alleged oral agreement of sale said to have taken place as far back as October 1979. He has not taken any steps by calling upon the plaintiff during his life time or the respondents herein who are his legal heirs thereafter calling upon them to execute the sale deed or filed a specific performance suit for nearly six years after the so-called oral agreement of sale. At least after the present suit was filed against him, the appellant has failed to file the specific performance suit. The agreement set up by the appellant being oral, he cannot even claim the benefit of the doctrine of part performance under Section 53-A of the Transfer of Property Act 1882 as held by the Supreme Court in Mool Chand Bakhru and another Vs. Rohan and others and by this Court in Narasayya (12-supra). The appellant has not even set up the plea of adverse possession. On the one hand he is denying tenancy and on the other hand he has failed to prove the plea of oral agreement of sale (The finding rendered on this aspect by the trial court has not even been contested in his appeal as no submissions in this regard are made by the learned Counsel for the appellant). On these indisputable facts, continued possession of the appellant is indenfensible irrespective of which ever forum decides the case. In fact, the appellant is only seeking to prolong the litigation by non-suiting the respondents on the plea of lack of jurisdiction in the civil court. If his plea is accepted and the respondents are relegated to the Tenancy Court, consistent with his stand taken in the suit, the appellant will plead absence of tenancy and that consequently the Tenancy Court has no jurisdiction to order his eviction in the absence of landlord-tenant relationship. In other words, the appellant is seeking to use the respondents who are admittedly the owners of the property and who are denied possession as well as rents for 35 years, as a foot ball. Even if the respondents have approached the Tenancy court, its finding not being conclusive on the plea of agreement of sale set up by the appellant, either party would have approached the civil court by way of a civil suit. Therefore, on the pleadings of the parties, no prejudice was caused to the appellant on account of the lower court entertaining the suit. Indeed, the lower court has conducted a full fledged trial and made a threadbare discussion on the merits of the case, including the plea of oral agreement of sale propounded by the appellant. Therefore, on the facts of the present case, it would be a grave travesty of justice to non-suit the respondents on the ground of lack of jurisdiction in the civil court.
The Honble Sri Justice C.V. Nagarjuna Reddy
Appeal Suit No.1085 of 1994
01-05-2015
Badde Ganiraju Appellant
Polisetti Andala Tayaru and 3 others. Respondents
Counsel for the appellant: Mr.C.Raghu
Counsel for the respondents: Mr.N.V.Suryanarayana Murthy, Senior Counsel for
Mr.Subrahmanyam Kurella
<GIST:
<HEAD NOTE:
?CASES REFERRED:
1. (1985) 2 SCC 54
2. (2008) 15 SCC 150
3. 1966 ALT Reports 424=1966(1) An.W.R. 352
4. 1993 (2) ALT 283
5. AIR 1966 SC (735) (1)
6. AIR 1971 AP 87 (FB)
7. AIR 1977 SC (1158) (1)
8. AIR 1999 SC (3039) (1)
9. AIR 1966 SC 1718
10. AIR 1988 SC (752)
11. 2009 (3) ALD 104 (SC)
12. 1956 Andhra 209 (AIR V 43 C 59 Nov.)
13. AIR 1971 A.P. 262
14. Civil Appeal No.4245 of 2012, dt.27-2-2015
15. SLP (C) No.18654 of 2008
16. AIR 1982 A.P. 24
17. AIR 2002 S.C. 812
The Honble Sri Justice C.V. Nagarjuna Reddy
Appeal Suit No.1085 of 1994
Date : 01-05-2015
The Court made the following:
JUDGMENT:
This Appeal arises out of the judgment and decree, dated 03-05-
1994, in OS.No.87 of 1985 on the file of the Court of the learned
Subordinate Judge, Narsapur.
For convenience, the parties shall be hereinafter referred to as
arrayed in the suit.
Originally, one Polisetti Satyanarayana Rao, who is the husband
of respondent No.1 and father of respondent Nos.2 to 4, filed the above-
mentioned suit for delivery of possession of the plaint schedule property
comprising Acs.6-00 of land in RS.Nos.68 and 70 of Veeravasaram
Village, Podur Taluk, West Godavari District, for recovery of a sum of
Rs.50,119-20 ps., towards past profits with subsequent interest from the
date of plaint till the date of payment, for future profits at the rate to be
determined by the Court from the date of suit till the date of delivery of
possession, to appoint a receiver to manage the plaint schedule property
during the pendency of the suit and for costs.
The plaintiff has pleaded that the defendant has taken the suit land
on lease; that for Acs.4-00 cents out of the plaint schedule land the
maktha (rent) payable was 12 bags per acre for sarva and 10 bags per
acre for Dalwa and for the remaining Acs.2-00 cents, the maktha payable
was 15 bags per acre for Sarva and 10 bags per acre for Dalwa. The
Sarva maktha is payable by 15th of January every year and the Dalwa
maktha is payable by 15th of May every year; that the said land was
taken on lease by the defendant in the year 1979; that having entered into
possession of the plaint schedule land as a lessee, the defendant has not
been paying the maktha in spite of demands made by the plaintiff, and
was appropriating the entire produce by himself; that the plaintiff has
caused registered notice, dated 26-06-1984 issued on the defendant
demanding payment of maktha and that having received the same, the
defendant has issued registered notice, dated 11-07-1984, with false and
frivolous contentions. In the said reply, the defendant has denied the
tenancy and alleged that the plaintiff has entered into an agreement of
sale with him in respect of the plaint schedule property at Rs.14,000/-
per acre before Polisetti Vasudeva Rao and Polisetti Veera Raghava Rao,
who happened to be the brothers of the plaintiff and one Mutyala
Ranganayakulu, father-in-law of Polisetti Vasudeva Rao; and that under
the said agreement of sale, the defendant has paid a sum of Rs.79,000/-
to the said Polisetti Vasudeva Rao towards the sale consideration in
installments and obtained his signatures in his account book. The
defendant has also called upon the respondent to receive the balance
amount and execute the sale deed in his favour. On receipt of the said
reply, the plaintiff has got another registered legal notice issued to the
defendant on 26-10-1985 by way of a rejoinder, in which the defendant
was called upon to hand over possession of the plaint schedule property
and pay the profits.
The plaintiff has further averred that the defendant has denied the
tenancy and set up the plea of agreement of sale and in pursuance
thereof, his right to continue in possession on the alleged agreement of
sale and that therefore, the suit being the one filed for recovery of
possession of the plaint schedule property with past and future profits,
the plaintiff is entitled to interest on the arrears of maktha from the
respective due dates at 12% p.a.
The defendant filed a written statement, wherein he has averred
that as per the allegations made in the plaint, he is a tenant, which is not
admitted by him, and as such, the plaintiff has to avail the remedy before
the Tribunal constituted under the Andhra Pradesh (Andhra Area)
Tenancy Act, 1956 (for short "the Act"). The defendant further averred
that he was never the tenant of the plaintiff; that the suit land was
situated in triounial zone; that therefore, Dalwa can be raised only once
in three years; and that he has not entered into possession of the suit land
as a lessee but as a vendee and therefore, he is entitled to appropriate the
produce for himself. The defendant has admitted his receipt of legal
notice and his issuing reply notice. The defendant has given the details
of his alleged purchase of the plaint schedule property under an
agreement of sale, reference to which is not necessary.
Based on the respective pleadings, the lower Court has framed the
following issues for consideration:
1. Whether this Court has no jurisdiction to entertain
and try the suit ?
2. Whether the plaintiff is entitled to any maktha from
the defendant ? If so, to what amount ?
3. Whether P.Vasudeva Rao was acting as agent of the
plaintiff ?
4.Whether the defendant has made any improvements
over the suit property ?
5. Whether the plaint schedule is not correct ?
6. Whether plaintiff is entitled to possession of suit
property ?
7. Whether the defendant is entitled to compensatory
costs under Section 35 (A) C.P.C. ?
8. To what relief ?
Subsequently, the application filed by the defendant for framing of
additional issues was allowed and hence, the following additional issues
were framed:
1. Whether there is any lease between the 1st plaintiff
and the defendant as pleaded by the plaintiff ?
2. Whether the oral agreement of sale pleaded by the
defendant is true ?
3. Whether the defendant is in possession of the plaint
schedule property in pursuance of the oral agreement
of sale ?
If so, whether the plaintiff is not entitled to the
possession of the plaint schedule property ?
Pending the suit, the sole plaintiff died. Hence, plaintiff Nos.2 to
5 were brought on record as his legal representatives.
On behalf of the plaintiffs, PWs.1 to 3 were examined and
Exs.A.1 to A.4 were marked. On behalf of the defendant, DWs.1 to 4
were examined and Exs.B.1 to B.31 were marked.
On Additional Issue No.1, the lower Court held that after careful
consideration and after marshalling the evidence of the defendant with
that of the evidence of the plaintiffs witnesses, it was well established
that the defendant was inducted into the land after the Dalwa crop of
1979.
On Additional Issue No.2, on the analysis of the evidence, the
lower Court has held that it has no hesitation to hold that the evidence
placed by the defendant is not acceptable and that he has failed to prove
that there is oral agreement of sale in his favour.
On analysis of the oral and documentary evidence, the lower
Court has answered all the issues against the defendant except issue
No.5 in respect of which it has held that the same was infructuous. The
lower Court has, accordingly, decreed the suit. Feeling aggrieved by the
said judgment and decree, the unsuccessful defendant filed this appeal.
I have heard Mr.C.Raghu, learned Counsel for the
defendant/appellant, and Mr.NV.Suryanarayana Murthy, learned Senior
Counsel, who appeared for Mr.Subrahmanyam Kurella, learned Counsel
for the plaintiffs/respondents, in detail.
Learned Counsel for the defendant has advanced his submissions
with regard to Issue No.1 only. He has submitted that the jurisdiction of
the Court is required to be determined based on the averments in the
plaint alone and that the stand taken by the defendant has no relevance at
all. He has further submitted that as the Act has created a Special
Forum, the landlord who pleads tenancy, has to necessarily approach the
Tribunal constituted under the Act under Section 13 of the Act by filing
appropriate application before the Special Officer, if any of the
contingencies mentioned in sub-clauses (a) to (f) thereof exists. He has
taken this Court through the plaint averments and submitted that as the
deceased plaintiff No.1 has specifically pleaded that the defendant was
the tenant, the civil Courts jurisdiction is barred notwithstanding the
fact that the defendant has denied tenancy.
In support of his submission that, for determination of jurisdiction,
the Court can only look into the pleadings in the plaint, the learned
Counsel has relied upon the judgments in Abdulla Bin Ali and others
vs. Calappa and others and Kurella Naga Dhruva Vudaya Bhaskara
Rao vs. Galla Janikamma . He has also relied upon the judgments in
M.Ramaiah vs. M.Govindu and Nimmagadda Venkaiah and
others vs. Sri sangameswara Swamy Temple, Sangam Jagarlamudi,
rep. by its Chairman, Trust Board and others in support of his
submission that the civil Court has no jurisdiction to entertain the suit for
eviction of a tenant by the landlord.
Opposing the above submissions, Mr.N.V.Suryanarayana Murthy,
learned Senior Counsel, submitted that the plaint averments have to be
read as a whole; that accordingly, Paragraph No.4 of the plaint, wherein
the plaintiff has pleaded tenancy has to be read along with Paragraph
No.8, in which he has referred to denial of tenancy by the defendant; that
the defendant has categorically denied tenancy in Paragraph No.4 of his
written statement, which is also material for determining the forum. The
learned Senior Counsel has placed heavy reliance on the judgments in
Bhagwati Prasad vs. Chandramaul , Dontireddy Venkata Reddy vs.
Bhimavarapu Bhushireddy and others , Smt.Manjushri Raha and
others vs. B.L.Gupta and others and Syed Dastagir vs.
T.R.Gopalakrishna Setty in support of his submission that the lower
Court had jurisdiction to entertain the suit and pass decree.
The learned Senior Counsel has also submitted that a statute,
which ousts the jurisdiction has to be strictly construed. In support of
this submission, he has relied upon the judgment in Abdul Waheed
Khan vs. Bhawani and others .
The learned Senior Counsel further submitted that a judgment can
be interfered, if it is wrong, but not, if it is not right. In this regard, he
has relied upon the judgment in Raja Ram Kumar Bhargava (dead) by
LRs. vs. Union of India . He has further submitted that the civil
courts jurisdiction has to be ordinarily presumed and for this purpose,
he has relied upon the judgment in Rajasthan State Road Transport
Corporation and another vs. Bal Mukund Bairwa .
The learned Senior Counsel submitted that no equities lie in
favour of the defendant for the reason that he is setting up an oral
agreement of sale, which by itself would not give him any right to
continue in possession without obtaining a decree for specific
performance of an agreement of sale and that in case of an oral
agreement of sale, his possession is not protected by Section 53-A of the
Transfer of Property Act, 1882. In support of his submission, he has
relied upon the judgment in Narasayya and others vs.
Ramachandrayya and others .
I have carefully considered the respective submissions of the
learned counsel for the parties and perused the record.
The long title of the Andhra Pradesh (Andhra Area) Tenancy Act
1956 would reveal that the same was enacted to provide for payment of
fair rent by cultivating tenants and for regulating the relations of
landlords and cultivating tenants of agricultural lands and for matters
connected therewith in the Andhra Area of the erstwhile State of Andhra
Pradesh.
Section 13 of the Act reads :
Termination of Tenancy: 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:
(a) has 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, has
failed to deliver the produce at the time of harvest; or
(b) has done any act or has been guilty of any neglect, which is
destructive of, or permanently injurious to the land; or
(c) has sub-let the land; or
(d) has violated any of the conditions of the tenancy regarding the
uses to which the land may be put; or
(e) has willfully denied the landlords title to the land; or
(f) has failed to comply with any order passed or direction issued by
the Special Officer or the District Judge under this Act.
Dealing with the provisions of the Act in Dhulipalli Subba Rao Vs.
The Siddappa Dharmakunta, Muppuramand others , Chinnappa
Reddy.,J, as his Lordships then was, held that the Act is meant to prevent
rack renting and unreasonable eviction and to secure a fair deal to the
tenant by way of fair rent and security of tenure; that while on the one
hand, the Act abridges the rights of the landlord under the general law,
on the other it enlarges the rights of the tenant; and that it has made
specific inroads into the existing law of landlord and tenant. It was
further held that Section 13 of the Act does not enable the landlord to
terminate the tenancy before approaching the Revenue Court under the
said provision and that no landlord shall be entitled to terminate the
tenancy and evict a cultivating tenant unless the conditions mentioned in
Section 13 are satisfied and an application for eviction is made before
the Tahsildar. This Judgment has been heavily relied upon by the
learned Counsel for the appellant.
The learned Senior Counsel for the respondents, however heavily
banked upon the Judgment of the Supreme Court in Kurella Naga
Druva Udaya Bhaskara Rao Vs. Galla Jani Kamma (2-supra).
The facts in Kurella Naga Druva Udaya Bhaskara Rao (2-
supra) are almost proximate to that in the present case. The plaintiff in
that case filed the suit for eviction of the defendant by pleading that she
is the owner of the suit schedule property having purchased the same
under registered sale deed dated 10-4-1957 from the previous owners
who are the sons of one Varalakshmamma who represented her; that the
plaintiff has paid the entire sale consideration and obtained possession
from the vendors; that the defendant who was her close relative offered
to manage the suit land by identifying suitable persons to cultivate the
said land, and accordingly lease was granted to various persons from
time to time; and that in the year 1971, the defendant himself offered to
take the land on annual lease of 40 bags of paddy; that the plaintiff
agreed accordingly and the defendant has become the cultivating tenant
from 1971 onwards; that after delivering maktha of 40 bags of paddy
every year, till Sankranthi 1978, the defendant stopped delivering
maktha from Sankranthi 1979; that the plaintiff has issued registered
notice dated 12-7-1977 through her counsel demanding payment of
agreed rent and possession of the land; that the defendant issued reply
notice dated 13-7-1979 alleging that he was not the tenant of the
plaintiff; that he had occupied the land in 1957 and had been cultivating
the land ever since then in his own right and that therefore the question
of delivering possession to the plaintiff did not arise. The plaintiff
pleaded that as the defendant claimed ownership and denied being the
cultivating tenant under her, she has treated the defendant as a trespasser
from the date of reply notice. The plaintiff has prayed for a decree for
possession of the suit schedule land and consequential reliefs. The
defendant filed a written statement denying the possession of the
plaintiff and pleaded that sale deed dated 10-4-1957 was nominal. He
has also raised the plea that on the averment of the plaintiff there was
relationship of landlord and cultivating tenant between the parties and
therefore the plaintiff ought to have filed eviction petition before the
Special Officer (Tenancy Court) under the Act and that the civil court
had no jurisdiction. It was also contended that a mere suit for possession
was not maintainable in the absence of prayer for declaration as he had
disputed the plaintiffs title to the suit property. The trial Court after
framing relevant issues decreed the suit based on oral and documentary
evidence. The appeal filed by the defendant was dismissed by this Court
with the finding that the plaintiff has established her title to the suit land;
that agreement dated 18-4-1959 putforth by the defendant was a
fabricated document and that the civil court had jurisdiction to entertain
the suit. The aggrieved defendant filed appeal with Leave before the
Supreme Court. While dealing with the maintainability of the suit, the
Supreme Court held that with the plaintiffs pleading that owing to the
denial of her title by the defendant, the latter is treated as a trespasser
and as the defendant had even denied the landlord-tenant relationship,
the tenancy was not an issue in the suit. The Court further held that
Section 13 of the Act requires an application to be made to the Special
Officer only when a landlord wants to terminate the tenancy and evict
his cultivating tenant and not otherwise and that when the plaintiffs case
is that the defendant is a trespasser and the case of the defendant is that
he was the owner and he was never a tenant of the suit land either under
the plaintiff or anyone else, the suit was for not eviction of an
agricultural tenant and therefore Section 13 of the Act was not attracted.
Referring to Section 13(e) of the Act, the Supreme Court observed at
paras 12 and 13 as under:
. Termination of tenancy and eviction petition under
Section 13(e) are contemplated only where (a) the defendant is
the cultivating tenant; and (b) the defendant willfully denies the
landlords title to the land. In this case the defendant denied that
he was the cultivating tenant of the suit land and plaintiff
claimed that defendant was a trespasser. Hence the first
requirement for application of Section 13(e) was not satisfied. If
the case of the plaintiff had been that the defendant was the
cultivating tenant under her and that defendant was claiming to
be the cultivating tenant under someone else by setting up title in
someone other than the plaintiff-landlord, Section 13(e) would
have certainly been attracted.
In this case, as noticed above, the plaintiff alleged she was the
owner and the defendant was a trespasser. The defendant
asserted that he was the owner by adverse possession and denied
that he was a cultivating tenant at any point of time. When
neither party to the suit claimed that defendant was the
cultivating tenant, and as the suit was not for eviction of a
cultivating tenant, the mere denial of the title of the plaintiff by
the defendant in respect of an agricultural land, would not mean
that only the authorities under the Act will have jurisdiction and
that plaintiff should sue for eviction under the Act by
approaching the Special Officer. Only a civil suit was the
remedy to obtain possession from a trespasser. Therefore the
contention that the suit was not maintainable, is liable to be
rejected.
The Supreme Court has relied upon its earlier Judgment in Abdulla Bin
Ali (1-supra) to fortify its above noted view. It has referred to and
relied upon para-6 of the Judgment in that case which reads as under :
In our opinion the High Court was not quite correct in
observing that the suit was filed by the plaintiffs-appellants on
the basis of relationship of landlord and tenant. Indeed, when the
defendants denied the title of the plaintiffs and the tenancy, the
plaintiffs filed the present suit treating them to be trespassers and
the suit is not on the basis of the relationship of landlord and
tenant between the parties. It is no doubt true that the plaintiff
had alleged that defendant 2 was a tenant but on the denial of the
tenancy and the title of the plaintiffs-appellants they filed a suit
treating the defendant to be a trespasser and a suit against a
trespasser would lie only in the civil court and not in the revenue
court.
It is interesting to note that a converse view to that taken in
Kurella Naga Druva Udaya Bhaskara Rao (2-supra) was expressed
by a coordinate Bench of two Judges in Shyam Lal Vs. Deepa Dass
Chela Ram Chela Garib Dass , decided on 27-2-2015. The Court was
dealing with a case arising under Punjab Tenancy Act 1887 and Punjab
Security of Land Tenures Act, 1953. The brief facts of that case are that
the plaintiff was a tenant of the previous owner and the defendant who
has purchased the property was trying to evict him without following
due process of law. The defendant while agreeing that the plaintiff was
a tenant of the original owner, however, took the plea that the tenancy
expired on 28-5-2005; that during the subsistence of the tenancy, he has
purchased the property and that after the expiry of lease period on 28-5-
2005, the suit property was to revert back to the defendant. He has filed
a counter claim seeking a decree for mandatory injunction directing the
plaintiff to handover vacant physical possession of the land with
damages for unauthorized occupation of the suit land. The trial Court
dismissed the suit and decreed the counter claim with the finding that as
the tenancy over the suit property has expired on 28-5-2005, the
defendant has become a trespasser. The said Judgment was confirmed in
appeal. The High Court in the Second Appeal filed by the plaintiff has
also confirmed the concurrent Judgments of the Courts below. Referring
to Section 9 of the Punjab Security of Land Tenures Act, 1953, the High
Court held that the said provision protects the tenancy and not a
trespasser in possession after expiry of the lease.
Disagreeing with the views and findings of all the hierarchical
courts, the Supreme Court observed that the provisions of the Punjab
Security of Land Tenures Act, 1953 protect the tenancy of agricultural
land in favour of the tenant; that the grounds specified by the said Act
for eviction do not include eviction of tenant after expiry of lease; that
therefore after the expiry of lease the tenant would be a statutory tenant
and such a tenant can be evicted only under one or other grounds
contemplated under Section 9 of the Act and that such eviction
proceedings have to be necessarily initiated before the competent
Revenue Court. In its Judgment, the Supreme court has referred to its
earlier Judgment in Sukhdev Singh (D) through L.Rs. and others Vs.
Puran and others wherein while dealing with the provisions of the
Punjab Security of Land Tenures Act 1953, the Supreme Court held that
after the expiry of fixed term tenancy in respect of agricultural land, the
provisions of the 1953 Act will have no application. The Court in that
case held :
In our view, the aforesaid argument of the learned counsel
does not merit acceptance. Admittedly, the petitioners were
granted lease of the suit land in 1955 for a period of 20 years and
the term of their lease ended in 1975. Section 9 of the 1953 Act
is attracted only when a tenant is sought to be evicted. The said
section is not applicable to a case where the tenancy gets
terminated by efflux of time and the person occupying the lease
premises no longer remains tenant. There is no provision in the
1953 Act similar to those contained in the Urban Rent Control
Legislations under which a tenant becomes statutory tenant after
expiry of the contractual tenure of the tenancy.
While differing with the view in Sukhdev Singh (D) through L.Rs. and
others (15-supra), the Court referred the issue to a larger Bench for
laying down the correct law.
A perusal of the Act and Punjab Security of Land Tenures Act
1953 shows that these Acts contained almost similar if not identical
provisions for eviction of tenants (though the grounds for eviction vary
under the two enactments). The two Judge Bench in Shyam Lal (14-
supra) expressed the view reflected in the Judgment of this Court in
Dhulipalli Subba Rao (13-supra).
From a plain reading of Section 13 of the Act, as interpreted in
Dhulipalli Subba Rao (13-supra), there can be little doubt that for
eviction simplicitor of a tenant, the only remedy available to the landlord
is to approach the Tenancy Court. However, as the debate on the
jurisdiction of the Revenue Tribunals vis--vis civil courts is thrown
open by the Apex Court in Shyam Lal (14-supra) by referring the same
to a 3-Judge Bench, it is neither appropriate nor desirable to render
conclusive findings on this aspect. Nevertheless, this Court has to
consider whether on the facts of the case, the jurisdiction of the civil
court is ousted or not.
In Abdul Waheed Khan (9-supra) Koka Subba Rao,J., as his
Lordships then was, held that under Section 9 of the CPC a civil court
can entertain a suit of every nature except a suit of which its cognizance
is either expressly or impliedly barred; that it is a settled principle that it
is for the party who seeks to oust the jurisdiction of civil court to
establish his contention; and that it is also equally settled that a statute
ousting the jurisdiction of a civil court must be strictly construed.
In Raja Ram Kumar Bhargava (dead) by L.Rs (10-supra),
speaking for the Bench, Venkatachalaiah, J (as his Lordships then was)
held:
Generally speaking, the broad guiding considerations are that
whenever a right, not pre-existing in common-law, is created by
a statute and that statute itself provided a machinery for the
enforcement of the right, both the right and the remedy having
been created uno flatu and a finality is intended to the result of
the statutory proceedings, then, even in the absence of an
exclusionary provision the civil courts jurisdiction is impliedly
barred. If, however, a right pre-existing in common law is
recognized by the statute and a new statutory remedy for its
enforcement provided, without expressly excluding the civil
courts jurisdiction, then both the common-law and the statutory
remedies might become concurrent remedies leaving open an
element of election to the persons of inherence.
It is appropriate to note that the lower Court has rested its
conclusions on issue No.1 relating to jurisdiction based on two
Judgments of this Court in M. Ramaiah (3-supra) and Satyapramoda
Thirthaswamulavaru Vs. Mula Gunnayya (deceased) and others .
It has held :
I have gone through the aforesaid two rulings. The two
decisions clearly held that where one of the reliefs prayed for the
plaint can be granted only by a civil court, then that suit is
maintainable in the civil court, though some of the reliefs can be
granted by Tenancy Tribunal. In this suit also, the defendant
denied the title of the plaintiffs. In the plaint, the plaintiffs are
praying for past and future profits. The relief of past and future
profits cannot be granted by the tenancy tribunal. Therefore,
certainly this suit is maintainable. I answer this issue
accordingly.
Let me therefore consider these two Judgments.
In M. Ramaiah (3-supra) this Court held that the mere fact that a
portion of the claim is excluded from the jurisdiction of Civil Court is no
bar to the trial by the Civil Court of the entire suit which was cognizable
by the Civil Court only. It is appropriate to discuss the facts of the said
case in some detail. The suit property was originally unenfranchised
service inam land. One Polayya who was the head of the family leased
out the suit land to defendant No.1 in the year 1940-41 on sharing
system. Defendant No.1 continued as a tenant holding over and was
paying the agreed share till 1953-54. After the death of Polayya plaintiff
Nos.1 and 2 became the owners of the suit property along with
Mangamma w/o. Polayya. Defendant No.1 continued as a tenant
holding over even after the death of Polayya. On 29-3-1957, plaintiff
Nos.1 and 2 and the said Mangamma sold the land to plaintiff No.3.
Defendant No.1 was duly informed about the same. Defendant No.1
instituted O.S.No.90 of 1957 for grant of permanent injunction
restraining plaintiff No.3 from interfering with his possession. That suit
was decreed. The plaintiffs have filed a suit for declaration of title,
recovery of possession and for the past and future profits. Defendant
No.1 filed a written statement denying that he was a tenant and claimed
himself to be the service holder enjoying the inam. Defendant No.1 later
died. Defendant Nos.2 to 4 were brought on record in place of the
deceased defendant. They have filed written statement adopting the
written statement filed by defendant No.1. They have further raised a
ground that even on the plaintiffs showing defendant No.1 was a tenant
and that the civil court therefore cannot have any jurisdiction to direct
eviction of the defendants. The trial court after framing the issues and
recording evidence adduced by the parties, decreed the suit. The appeal
filed by the defendants was dismissed by the District Judge. The
defendants thereafter have filed the Second Appeal before this Court.
The main contention advanced by the appellants before this Court was
that on the plaintiffs own showing, defendant No.1 was a tenant holding
over on the date of filing of the suit and that therefore the only remedy
they had was to approach the Tenancy Court under Section 13 of the
Act.
Dealing with this issue, the Court has first dealt with the aspect of
the pleadings which determine the jurisdiction. The Court observed that
the jurisdiction with reference to the subject matter of claim depends
upon the averments made in the plaint and not upon those which may
ultimately be found to be true; that mere allegations made by the
defendants in the written statement are not enough to decide the forum
of a suit and that whether a particular suit is cognizable by civil court or
Tenancy Court, it is the allegations made in the plaint which must decide
the question and not the pleas raised by the defendants in the written
statement. The court held :
In a suit in which there are more than one relief claimed and
the some reliefs can be granted by the civil court while the others
can be granted only by a tenancy court, the question naturally
arises as to what procedure should be adopted in such cases.
One mode is to direct the amendment of the plaint so as to bring
it within the jurisdiction of the civil court and allow the plaintiff
to seek remedy in regard to the relief which is cognizable by the
tenancy court. But such a splitting may not be possible in all
cases. In such cases, therefore, as stated earlier, the cause of
action and substance of reliefs asked in the plaint will have to be
carefully examined and if the substantial relief based on the
cause of action can be granted only by the civil court and
splitting of the reliefs is neither possible nor desirable, then it
cannot be argued that the civil court has no jurisdiction to try it.
The Court further held :
A reading of the plaint will disclose that the first
defendant denying the title of the plaintiffs set up a title in
himself and stopped paying rent. On those allegations,
declaration of plaintiffs title was sought apart from claiming the
profits past and future along with the relief for the recovery of
possession of the suit land. While it is true that on the basis of
default and the tenant denying the title of the landlord and setting
up a title in himself a petition for eviction can be filed before the
tenancy court under the Act, it cannot however be denied that the
tenancy court is not competent to grant reliefs of declaration of
plaintiffs title and the profits past and future. It may be that it
can incidentally decide the question of title if it is necessary for
effective disposal of the petition filed under Section 13 of the
Act. There cannot be any doubt that it cannot decide the
question of title finally and the parties will have to agitate the
same before a Civil Court. In the circumstances mentioned in
the plaint the substantial relief in the case is that of declaration of
the plaintiffs title, in the denial of which the defendant was not
only interested but was persisting. It is trite to say that the
plaintiffs who are out of possession cannot ask for mere
declaration of their title. It was, therefore, not possible for the
plaintiffs to split the reliefs and so they were obliged to ask not
only declaration of title but also recovery of possession and the
profits. The entire suit, as it is framed, is cognizable only by the
Civil Court. Although one of the reliefs i.e., recovery of
possession alone may be separately cognizable exclusively by
the tenancy court, it is however abundantly plain that the tenancy
court cannot hear the entire case as it is framed and grant reliefs
claimed by the plaintiffs. It is evident that the jurisdiction of the
civil court will not be considered as barred unless the entire suit
as brought is barred under the provisions of the Act.
Undoubtedly, what are barred are the disputes falling within the
ambit of the Act. The mere fact that portion or the claim is
excluded from the jurisdiction of the Civil Court is no bar to the
trial by the Civil Court of the entire suit which is cognizable by
the Civil Court only. I have, therefore, no doubt that the Civil
Court was competent to entertain the present suit.
In Satyapramoda Thirthaswamulavaru (16-supra) the Division
Bench of this Court referred to and relied upon the Judgment in M.
Ramaiah (3-supra) besides relying upon various other Judgments of
this Court. The said case is more or less similar to the present case on
hand where it was the positive case of the plaintiff that the defendants
were all tenants; that they paid rents till the end of 1365 Fasli and that
they were liable for eviction on the ground of willful default in payment
of rents. However, without approaching the Revenue Tribunal they have
filed the civil suit for a decree for ejectment and for damages and for
past profits for Faslies 1365 to 1367. Repelling the contention raised on
behalf of the defendants that only the Tenancy Court has jurisdiction to
entertain the application for eviction and the civil court had no
jurisdiction, the Division Bench held at para-31 as under :
It is now well established by a catena of decisions of this
Court reported in Chigurupati Venkatasubbaiah vs. Ravi
Punnayya (1957) 2 An.W.R.204), Mahendrada Ramayya vs.
Mahendrada Govindu (1966(1) An.W.R.352) and Donti Reddy
Venkat Reddy vs. Bhimavarapu Bhushireddy (1970) 2
An.WR.226 : AIR 1971 A.P. 87 (FB) that when only a part of
the relief claimed can be granted by a tenancy court, the Civil
Court had jurisdiction to entertain the suit. Indisputably in this
case, the Tenancy Court cannot grant relief for damages and only
a relief of eviction can be granted by the Revenue Court and,
therefore, in our opinion, the civil court has undoubtedly,
jurisdiction to entertain the suit, and the court below was in error
in holding that the civil court had no jurisdiction to entertain the
suit.
The Full Bench of this Court in Dontireddy Venkata Reddy (6-
supra) dealing with the question whether Tenancy Tahsildar can deal
with the question of title in deciding the relationship of landlord and
cultivating tenant, while holding that he has such jurisdiction, made
certain critical observations. The Bench observed at para-32 as under :
A reading of the aforesaid decisions clearly show(s) that
whether a Tribunal has been given the exclusive jurisdiction to
decide a particular circumstance depends upon the language of
the Act and aims and objects for which the Act has been enacted.
If a given Act postulates that on the existence of certain state of
facts the Tribunal will have jurisdiction to decide the matters
entrusted to it under the Act, the Tribunal will no doubt be
competent to decide whether that state of facts exists but the
existence of such state of facts being a jurisdictional factor it
cannot give to itself jurisdiction by a wrong decision as to the
existence of such state of facts. Such a decision would be in
regard to a collateral fact and can be questioned in a Civil Court
and the jurisdiction of the Civil Court is not barred in such cases.
Whereas in cases where the tribunal has been given exclusive
jurisdiction to decide the existence of facts on the basis of which
it could proceed to pass certain orders, the decision on those facts
would also be final and conclusive and cannot be questioned in a
Civil Court.
The Bench further observed at para 33 :
. No doubt in a given case he can determine if dispute arises
with regard to such relationship but such a decision will only be
a decision regarding a jurisdictional fact or a collateral fact and
such a decision can always be questioned in a Civil Court.
There is no quarrel on the proposition that the plaint must be read
as a whole and that the averments in the plaint only determine the
jurisdiction of the courts. In paragraph-4 of the plaint, the respondent
pleaded that the appellant has taken the land on lease in the year 1979.
In paragraph-5 he has averred that the appellant was not paying maktha
after getting into possession; that the respondent has got issued
registered notice dated 26-6-1984; that the appellant has issued a reply
notice dated 11-7-1984 denying tenancy and set up the alleged
agreement of sale between the parties as per which the plaintiff agreed to
sell the property for a sale consideration of Rs.14,000/- per acre and
receipt of part sale consideration by one Polisetti Vasudeva Rao, the
brother of the plaintiff. In paragraph-7, the plaintiff has referred to
another legal notice dated 26-10-1985 by way of rejoinder to which the
appellant has issued reply notice dated 19-11-1985 reiterating all the
averments made in his earlier notice. In paragraphs 8 and 9, which
constitute core pleadings, the plaintiff averred as under :
As the defendant has denied the tenancy and is contending
that the plaintiff has agreed to sell the property to him and as
such he is entitled to continue in possession of the property this
suit is filed for recovery of possession of the plaint schedule
property with past and future profits. The plaintiff is also
entitled to interest on the arrears of Maktha from the respective
due dates and the plaintiff claims interest at 12% per annum.
The plaintiff also claims past profits limiting his claim for 3
years prior to suit.
As already stated, the plaint schedule property belongs to the
plaintiff, he never agreed to sell the plaint schedule property to
the defendant nor did he receive any amount under the alleged
agreement of sale from the defendant and the said Sri P.
Vasudeva Rao was not the agent of the plaintiff and the plaintiff
never authorized him to sell the property. In the second reply
notice the defendant alleged that at the time of construction of
terraced building, the plaintiff agreed to sell the property before
the persons mentioned in his reply notice which is not correct.
There is no need or necessity for the plaintiff to sell the plaint
schedule property for the construction of his terraced building
and the plaintiff never agreed to sell the property to anybody
much less to the defendant to raise funds for the construction of
his terraced building. The defendant is only a tenant but having
entered into possession, he now set up contract of sale which the
plaintiff never entered into with him. The defendant has no right
to continue in possession of the property.
The plaintiff sought the following reliefs in the suit:
(a) For delivery of possession of the plaint schedule property to
the plaintiff evicting the defendant therefrom.
(b) For recovery of Rs.50,119-20 towards past profits with
subsequent interest from the date4 of plaint till date of
payment?
(c) For future profits at the rate to be determined by this Honble
Court from the date of suit till delivery of possession.
(d) To appoint a receiver to manage the plaint schedule property
during the pendency of the suit.
(e) To grant costs of the suit.
(f) To grant such further or other reliefs deemed fit and proper in
the circumstances of the case.
From the facts pleaded in the plaint and the issues framed by the
trial Court, the suit cannot be treated merely as a suit for termination of
tenancy and for recovery of possession simplicitor. Though no relief of
declaration of title was claimed in form, in content, the suit involved a
title dispute. This is not merely a case where the tenant has willfully
denied the landlords title to the land which is the ground envisaged
under Section 13(e) of the Act for seeking his eviction, but also he has
asserted his right to remain in possession dehors the tenancy based on
the purported oral agreement of sale. Issue No.3 and additional Issue
Nos.1 and 2, are very wide in their scope, under which the trial Court
discussed the appellants right based on the oral agreement set up by
him. As held by this Court in M. Ramaiah (3-supra) while the Tenancy
court is a forum created by a special statute, it can exercise limited
jurisdiction which is vested in it by the provisions of the Act. While
exercising its jurisdiction under Section 13 of the Act, the Tenancy
Court may decide the question of title incidentally and it is only the civil
court which has jurisdiction to finally decide that question. Even if the
respondent has approached the Tenancy Court and that Court has
rendered findings on the alleged agreement of sale and the right claimed
by the appellant to remain in possession based on such agreement of
sale, the aggrieved party would have landed the dispute before the lower
court by way of a civil suit.
Following the ratio in M. Ramaiah (3-supra) although one of the
reliefs which is recovery of possession from a tenant is cognizable
exclusively by the Tenancy Court, the jurisdiction of civil court will not
be considered as barred unless the entire suit as brought before it is
barred under the provisions of the Act. As noted supra, this view was
followed by the Division Bench of this Court in Satyapramoda
Thirthaswamulavaru (16-supra) wherein the plaintiff has claimed the
reliefs of decree for ejectment and damages and past profits. The
Division Bench held that the Tenancy Court cannot grant relief of
damages and therefore the Civil Court had undoubtedly jurisdiction to
entertain the suit. The relief claimed in the suit filed by the plaintiffs is
similar to that claimed in Satya Pramoda (16-supra).
It is relevant to note the conduct of the appellant in this context.
He has set up an alleged oral agreement of sale said to have taken place
as far back as October 1979. He has not taken any steps by calling upon
the plaintiff during his life time or the respondents herein who are his
legal heirs thereafter calling upon them to execute the sale deed or filed a
specific performance suit for nearly six years after the so-called oral
agreement of sale. At least after the present suit was filed against him,
the appellant has failed to file the specific performance suit. The
agreement set up by the appellant being oral, he cannot even claim the
benefit of the doctrine of part performance under Section 53-A of the
Transfer of Property Act 1882 as held by the Supreme Court in Mool
Chand Bakhru and another Vs. Rohan and others and by this Court
in Narasayya (12-supra). The appellant has not even set up the plea of
adverse possession. On the one hand he is denying tenancy and on the
other hand he has failed to prove the plea of oral agreement of sale (The
finding rendered on this aspect by the trial court has not even been
contested in his appeal as no submissions in this regard are made by the
learned Counsel for the appellant). On these indisputable facts,
continued possession of the appellant is indenfensible irrespective of
which ever forum decides the case. In fact, the appellant is only seeking
to prolong the litigation by non-suiting the respondents on the plea of
lack of jurisdiction in the civil court. If his plea is accepted and the
respondents are relegated to the Tenancy Court, consistent with his stand
taken in the suit, the appellant will plead absence of tenancy and that
consequently the Tenancy Court has no jurisdiction to order his eviction
in the absence of landlord-tenant relationship. In other words, the
appellant is seeking to use the respondents who are admittedly the
owners of the property and who are denied possession as well as rents
for 35 years, as a foot ball. Even if the respondents have approached the
Tenancy court, its finding not being conclusive on the plea of agreement
of sale set up by the appellant, either party would have approached the
civil court by way of a civil suit. Therefore, on the pleadings of the
parties, no prejudice was caused to the appellant on account of the lower
court entertaining the suit. Indeed, the lower court has conducted a full
fledged trial and made a threadbare discussion on the merits of the case,
including the plea of oral agreement of sale propounded by the appellant.
Therefore, on the facts of the present case, it would be a grave travesty
of justice to non-suit the respondents on the ground of lack of
jurisdiction in the civil court.
On the analysis as above, I hold that the lower court has
jurisdiction to entertain the suit and it has rightly done so.
No other point was argued by the learned Counsel for the
appellant.
For the above mentioned reasons, the appeal fails and the same is
accordingly dismissed.
As a sequel to the dismissal of the appeal, interim order dated
10-8-1994 is vacated and CMP Nos.12020 of 1994 and 13149 of 1994
are disposed of as infructuous.
________________________
Justice C.V. Nagarjuna Reddy
Date : 01-05-2015
Appeal Suit No.1085 of 1994
01-05-2015
Badde Ganiraju Appellant
Polisetti Andala Tayaru and 3 others. Respondents
Counsel for the appellant: Mr.C.Raghu
Counsel for the respondents: Mr.N.V.Suryanarayana Murthy, Senior Counsel for
Mr.Subrahmanyam Kurella
<GIST:
<HEAD NOTE:
?CASES REFERRED:
1. (1985) 2 SCC 54
2. (2008) 15 SCC 150
3. 1966 ALT Reports 424=1966(1) An.W.R. 352
4. 1993 (2) ALT 283
5. AIR 1966 SC (735) (1)
6. AIR 1971 AP 87 (FB)
7. AIR 1977 SC (1158) (1)
8. AIR 1999 SC (3039) (1)
9. AIR 1966 SC 1718
10. AIR 1988 SC (752)
11. 2009 (3) ALD 104 (SC)
12. 1956 Andhra 209 (AIR V 43 C 59 Nov.)
13. AIR 1971 A.P. 262
14. Civil Appeal No.4245 of 2012, dt.27-2-2015
15. SLP (C) No.18654 of 2008
16. AIR 1982 A.P. 24
17. AIR 2002 S.C. 812
The Honble Sri Justice C.V. Nagarjuna Reddy
Appeal Suit No.1085 of 1994
Date : 01-05-2015
The Court made the following:
JUDGMENT:
This Appeal arises out of the judgment and decree, dated 03-05-
1994, in OS.No.87 of 1985 on the file of the Court of the learned
Subordinate Judge, Narsapur.
For convenience, the parties shall be hereinafter referred to as
arrayed in the suit.
Originally, one Polisetti Satyanarayana Rao, who is the husband
of respondent No.1 and father of respondent Nos.2 to 4, filed the above-
mentioned suit for delivery of possession of the plaint schedule property
comprising Acs.6-00 of land in RS.Nos.68 and 70 of Veeravasaram
Village, Podur Taluk, West Godavari District, for recovery of a sum of
Rs.50,119-20 ps., towards past profits with subsequent interest from the
date of plaint till the date of payment, for future profits at the rate to be
determined by the Court from the date of suit till the date of delivery of
possession, to appoint a receiver to manage the plaint schedule property
during the pendency of the suit and for costs.
The plaintiff has pleaded that the defendant has taken the suit land
on lease; that for Acs.4-00 cents out of the plaint schedule land the
maktha (rent) payable was 12 bags per acre for sarva and 10 bags per
acre for Dalwa and for the remaining Acs.2-00 cents, the maktha payable
was 15 bags per acre for Sarva and 10 bags per acre for Dalwa. The
Sarva maktha is payable by 15th of January every year and the Dalwa
maktha is payable by 15th of May every year; that the said land was
taken on lease by the defendant in the year 1979; that having entered into
possession of the plaint schedule land as a lessee, the defendant has not
been paying the maktha in spite of demands made by the plaintiff, and
was appropriating the entire produce by himself; that the plaintiff has
caused registered notice, dated 26-06-1984 issued on the defendant
demanding payment of maktha and that having received the same, the
defendant has issued registered notice, dated 11-07-1984, with false and
frivolous contentions. In the said reply, the defendant has denied the
tenancy and alleged that the plaintiff has entered into an agreement of
sale with him in respect of the plaint schedule property at Rs.14,000/-
per acre before Polisetti Vasudeva Rao and Polisetti Veera Raghava Rao,
who happened to be the brothers of the plaintiff and one Mutyala
Ranganayakulu, father-in-law of Polisetti Vasudeva Rao; and that under
the said agreement of sale, the defendant has paid a sum of Rs.79,000/-
to the said Polisetti Vasudeva Rao towards the sale consideration in
installments and obtained his signatures in his account book. The
defendant has also called upon the respondent to receive the balance
amount and execute the sale deed in his favour. On receipt of the said
reply, the plaintiff has got another registered legal notice issued to the
defendant on 26-10-1985 by way of a rejoinder, in which the defendant
was called upon to hand over possession of the plaint schedule property
and pay the profits.
The plaintiff has further averred that the defendant has denied the
tenancy and set up the plea of agreement of sale and in pursuance
thereof, his right to continue in possession on the alleged agreement of
sale and that therefore, the suit being the one filed for recovery of
possession of the plaint schedule property with past and future profits,
the plaintiff is entitled to interest on the arrears of maktha from the
respective due dates at 12% p.a.
The defendant filed a written statement, wherein he has averred
that as per the allegations made in the plaint, he is a tenant, which is not
admitted by him, and as such, the plaintiff has to avail the remedy before
the Tribunal constituted under the Andhra Pradesh (Andhra Area)
Tenancy Act, 1956 (for short "the Act"). The defendant further averred
that he was never the tenant of the plaintiff; that the suit land was
situated in triounial zone; that therefore, Dalwa can be raised only once
in three years; and that he has not entered into possession of the suit land
as a lessee but as a vendee and therefore, he is entitled to appropriate the
produce for himself. The defendant has admitted his receipt of legal
notice and his issuing reply notice. The defendant has given the details
of his alleged purchase of the plaint schedule property under an
agreement of sale, reference to which is not necessary.
Based on the respective pleadings, the lower Court has framed the
following issues for consideration:
1. Whether this Court has no jurisdiction to entertain
and try the suit ?
2. Whether the plaintiff is entitled to any maktha from
the defendant ? If so, to what amount ?
3. Whether P.Vasudeva Rao was acting as agent of the
plaintiff ?
4.Whether the defendant has made any improvements
over the suit property ?
5. Whether the plaint schedule is not correct ?
6. Whether plaintiff is entitled to possession of suit
property ?
7. Whether the defendant is entitled to compensatory
costs under Section 35 (A) C.P.C. ?
8. To what relief ?
Subsequently, the application filed by the defendant for framing of
additional issues was allowed and hence, the following additional issues
were framed:
1. Whether there is any lease between the 1st plaintiff
and the defendant as pleaded by the plaintiff ?
2. Whether the oral agreement of sale pleaded by the
defendant is true ?
3. Whether the defendant is in possession of the plaint
schedule property in pursuance of the oral agreement
of sale ?
If so, whether the plaintiff is not entitled to the
possession of the plaint schedule property ?
Pending the suit, the sole plaintiff died. Hence, plaintiff Nos.2 to
5 were brought on record as his legal representatives.
On behalf of the plaintiffs, PWs.1 to 3 were examined and
Exs.A.1 to A.4 were marked. On behalf of the defendant, DWs.1 to 4
were examined and Exs.B.1 to B.31 were marked.
On Additional Issue No.1, the lower Court held that after careful
consideration and after marshalling the evidence of the defendant with
that of the evidence of the plaintiffs witnesses, it was well established
that the defendant was inducted into the land after the Dalwa crop of
1979.
On Additional Issue No.2, on the analysis of the evidence, the
lower Court has held that it has no hesitation to hold that the evidence
placed by the defendant is not acceptable and that he has failed to prove
that there is oral agreement of sale in his favour.
On analysis of the oral and documentary evidence, the lower
Court has answered all the issues against the defendant except issue
No.5 in respect of which it has held that the same was infructuous. The
lower Court has, accordingly, decreed the suit. Feeling aggrieved by the
said judgment and decree, the unsuccessful defendant filed this appeal.
I have heard Mr.C.Raghu, learned Counsel for the
defendant/appellant, and Mr.NV.Suryanarayana Murthy, learned Senior
Counsel, who appeared for Mr.Subrahmanyam Kurella, learned Counsel
for the plaintiffs/respondents, in detail.
Learned Counsel for the defendant has advanced his submissions
with regard to Issue No.1 only. He has submitted that the jurisdiction of
the Court is required to be determined based on the averments in the
plaint alone and that the stand taken by the defendant has no relevance at
all. He has further submitted that as the Act has created a Special
Forum, the landlord who pleads tenancy, has to necessarily approach the
Tribunal constituted under the Act under Section 13 of the Act by filing
appropriate application before the Special Officer, if any of the
contingencies mentioned in sub-clauses (a) to (f) thereof exists. He has
taken this Court through the plaint averments and submitted that as the
deceased plaintiff No.1 has specifically pleaded that the defendant was
the tenant, the civil Courts jurisdiction is barred notwithstanding the
fact that the defendant has denied tenancy.
In support of his submission that, for determination of jurisdiction,
the Court can only look into the pleadings in the plaint, the learned
Counsel has relied upon the judgments in Abdulla Bin Ali and others
vs. Calappa and others and Kurella Naga Dhruva Vudaya Bhaskara
Rao vs. Galla Janikamma . He has also relied upon the judgments in
M.Ramaiah vs. M.Govindu and Nimmagadda Venkaiah and
others vs. Sri sangameswara Swamy Temple, Sangam Jagarlamudi,
rep. by its Chairman, Trust Board and others in support of his
submission that the civil Court has no jurisdiction to entertain the suit for
eviction of a tenant by the landlord.
Opposing the above submissions, Mr.N.V.Suryanarayana Murthy,
learned Senior Counsel, submitted that the plaint averments have to be
read as a whole; that accordingly, Paragraph No.4 of the plaint, wherein
the plaintiff has pleaded tenancy has to be read along with Paragraph
No.8, in which he has referred to denial of tenancy by the defendant; that
the defendant has categorically denied tenancy in Paragraph No.4 of his
written statement, which is also material for determining the forum. The
learned Senior Counsel has placed heavy reliance on the judgments in
Bhagwati Prasad vs. Chandramaul , Dontireddy Venkata Reddy vs.
Bhimavarapu Bhushireddy and others , Smt.Manjushri Raha and
others vs. B.L.Gupta and others and Syed Dastagir vs.
T.R.Gopalakrishna Setty in support of his submission that the lower
Court had jurisdiction to entertain the suit and pass decree.
The learned Senior Counsel has also submitted that a statute,
which ousts the jurisdiction has to be strictly construed. In support of
this submission, he has relied upon the judgment in Abdul Waheed
Khan vs. Bhawani and others .
The learned Senior Counsel further submitted that a judgment can
be interfered, if it is wrong, but not, if it is not right. In this regard, he
has relied upon the judgment in Raja Ram Kumar Bhargava (dead) by
LRs. vs. Union of India . He has further submitted that the civil
courts jurisdiction has to be ordinarily presumed and for this purpose,
he has relied upon the judgment in Rajasthan State Road Transport
Corporation and another vs. Bal Mukund Bairwa .
The learned Senior Counsel submitted that no equities lie in
favour of the defendant for the reason that he is setting up an oral
agreement of sale, which by itself would not give him any right to
continue in possession without obtaining a decree for specific
performance of an agreement of sale and that in case of an oral
agreement of sale, his possession is not protected by Section 53-A of the
Transfer of Property Act, 1882. In support of his submission, he has
relied upon the judgment in Narasayya and others vs.
Ramachandrayya and others .
I have carefully considered the respective submissions of the
learned counsel for the parties and perused the record.
The long title of the Andhra Pradesh (Andhra Area) Tenancy Act
1956 would reveal that the same was enacted to provide for payment of
fair rent by cultivating tenants and for regulating the relations of
landlords and cultivating tenants of agricultural lands and for matters
connected therewith in the Andhra Area of the erstwhile State of Andhra
Pradesh.
Section 13 of the Act reads :
Termination of Tenancy: 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:
(a) has 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, has
failed to deliver the produce at the time of harvest; or
(b) has done any act or has been guilty of any neglect, which is
destructive of, or permanently injurious to the land; or
(c) has sub-let the land; or
(d) has violated any of the conditions of the tenancy regarding the
uses to which the land may be put; or
(e) has willfully denied the landlords title to the land; or
(f) has failed to comply with any order passed or direction issued by
the Special Officer or the District Judge under this Act.
Dealing with the provisions of the Act in Dhulipalli Subba Rao Vs.
The Siddappa Dharmakunta, Muppuramand others , Chinnappa
Reddy.,J, as his Lordships then was, held that the Act is meant to prevent
rack renting and unreasonable eviction and to secure a fair deal to the
tenant by way of fair rent and security of tenure; that while on the one
hand, the Act abridges the rights of the landlord under the general law,
on the other it enlarges the rights of the tenant; and that it has made
specific inroads into the existing law of landlord and tenant. It was
further held that Section 13 of the Act does not enable the landlord to
terminate the tenancy before approaching the Revenue Court under the
said provision and that no landlord shall be entitled to terminate the
tenancy and evict a cultivating tenant unless the conditions mentioned in
Section 13 are satisfied and an application for eviction is made before
the Tahsildar. This Judgment has been heavily relied upon by the
learned Counsel for the appellant.
The learned Senior Counsel for the respondents, however heavily
banked upon the Judgment of the Supreme Court in Kurella Naga
Druva Udaya Bhaskara Rao Vs. Galla Jani Kamma (2-supra).
The facts in Kurella Naga Druva Udaya Bhaskara Rao (2-
supra) are almost proximate to that in the present case. The plaintiff in
that case filed the suit for eviction of the defendant by pleading that she
is the owner of the suit schedule property having purchased the same
under registered sale deed dated 10-4-1957 from the previous owners
who are the sons of one Varalakshmamma who represented her; that the
plaintiff has paid the entire sale consideration and obtained possession
from the vendors; that the defendant who was her close relative offered
to manage the suit land by identifying suitable persons to cultivate the
said land, and accordingly lease was granted to various persons from
time to time; and that in the year 1971, the defendant himself offered to
take the land on annual lease of 40 bags of paddy; that the plaintiff
agreed accordingly and the defendant has become the cultivating tenant
from 1971 onwards; that after delivering maktha of 40 bags of paddy
every year, till Sankranthi 1978, the defendant stopped delivering
maktha from Sankranthi 1979; that the plaintiff has issued registered
notice dated 12-7-1977 through her counsel demanding payment of
agreed rent and possession of the land; that the defendant issued reply
notice dated 13-7-1979 alleging that he was not the tenant of the
plaintiff; that he had occupied the land in 1957 and had been cultivating
the land ever since then in his own right and that therefore the question
of delivering possession to the plaintiff did not arise. The plaintiff
pleaded that as the defendant claimed ownership and denied being the
cultivating tenant under her, she has treated the defendant as a trespasser
from the date of reply notice. The plaintiff has prayed for a decree for
possession of the suit schedule land and consequential reliefs. The
defendant filed a written statement denying the possession of the
plaintiff and pleaded that sale deed dated 10-4-1957 was nominal. He
has also raised the plea that on the averment of the plaintiff there was
relationship of landlord and cultivating tenant between the parties and
therefore the plaintiff ought to have filed eviction petition before the
Special Officer (Tenancy Court) under the Act and that the civil court
had no jurisdiction. It was also contended that a mere suit for possession
was not maintainable in the absence of prayer for declaration as he had
disputed the plaintiffs title to the suit property. The trial Court after
framing relevant issues decreed the suit based on oral and documentary
evidence. The appeal filed by the defendant was dismissed by this Court
with the finding that the plaintiff has established her title to the suit land;
that agreement dated 18-4-1959 putforth by the defendant was a
fabricated document and that the civil court had jurisdiction to entertain
the suit. The aggrieved defendant filed appeal with Leave before the
Supreme Court. While dealing with the maintainability of the suit, the
Supreme Court held that with the plaintiffs pleading that owing to the
denial of her title by the defendant, the latter is treated as a trespasser
and as the defendant had even denied the landlord-tenant relationship,
the tenancy was not an issue in the suit. The Court further held that
Section 13 of the Act requires an application to be made to the Special
Officer only when a landlord wants to terminate the tenancy and evict
his cultivating tenant and not otherwise and that when the plaintiffs case
is that the defendant is a trespasser and the case of the defendant is that
he was the owner and he was never a tenant of the suit land either under
the plaintiff or anyone else, the suit was for not eviction of an
agricultural tenant and therefore Section 13 of the Act was not attracted.
Referring to Section 13(e) of the Act, the Supreme Court observed at
paras 12 and 13 as under:
. Termination of tenancy and eviction petition under
Section 13(e) are contemplated only where (a) the defendant is
the cultivating tenant; and (b) the defendant willfully denies the
landlords title to the land. In this case the defendant denied that
he was the cultivating tenant of the suit land and plaintiff
claimed that defendant was a trespasser. Hence the first
requirement for application of Section 13(e) was not satisfied. If
the case of the plaintiff had been that the defendant was the
cultivating tenant under her and that defendant was claiming to
be the cultivating tenant under someone else by setting up title in
someone other than the plaintiff-landlord, Section 13(e) would
have certainly been attracted.
In this case, as noticed above, the plaintiff alleged she was the
owner and the defendant was a trespasser. The defendant
asserted that he was the owner by adverse possession and denied
that he was a cultivating tenant at any point of time. When
neither party to the suit claimed that defendant was the
cultivating tenant, and as the suit was not for eviction of a
cultivating tenant, the mere denial of the title of the plaintiff by
the defendant in respect of an agricultural land, would not mean
that only the authorities under the Act will have jurisdiction and
that plaintiff should sue for eviction under the Act by
approaching the Special Officer. Only a civil suit was the
remedy to obtain possession from a trespasser. Therefore the
contention that the suit was not maintainable, is liable to be
rejected.
The Supreme Court has relied upon its earlier Judgment in Abdulla Bin
Ali (1-supra) to fortify its above noted view. It has referred to and
relied upon para-6 of the Judgment in that case which reads as under :
In our opinion the High Court was not quite correct in
observing that the suit was filed by the plaintiffs-appellants on
the basis of relationship of landlord and tenant. Indeed, when the
defendants denied the title of the plaintiffs and the tenancy, the
plaintiffs filed the present suit treating them to be trespassers and
the suit is not on the basis of the relationship of landlord and
tenant between the parties. It is no doubt true that the plaintiff
had alleged that defendant 2 was a tenant but on the denial of the
tenancy and the title of the plaintiffs-appellants they filed a suit
treating the defendant to be a trespasser and a suit against a
trespasser would lie only in the civil court and not in the revenue
court.
It is interesting to note that a converse view to that taken in
Kurella Naga Druva Udaya Bhaskara Rao (2-supra) was expressed
by a coordinate Bench of two Judges in Shyam Lal Vs. Deepa Dass
Chela Ram Chela Garib Dass , decided on 27-2-2015. The Court was
dealing with a case arising under Punjab Tenancy Act 1887 and Punjab
Security of Land Tenures Act, 1953. The brief facts of that case are that
the plaintiff was a tenant of the previous owner and the defendant who
has purchased the property was trying to evict him without following
due process of law. The defendant while agreeing that the plaintiff was
a tenant of the original owner, however, took the plea that the tenancy
expired on 28-5-2005; that during the subsistence of the tenancy, he has
purchased the property and that after the expiry of lease period on 28-5-
2005, the suit property was to revert back to the defendant. He has filed
a counter claim seeking a decree for mandatory injunction directing the
plaintiff to handover vacant physical possession of the land with
damages for unauthorized occupation of the suit land. The trial Court
dismissed the suit and decreed the counter claim with the finding that as
the tenancy over the suit property has expired on 28-5-2005, the
defendant has become a trespasser. The said Judgment was confirmed in
appeal. The High Court in the Second Appeal filed by the plaintiff has
also confirmed the concurrent Judgments of the Courts below. Referring
to Section 9 of the Punjab Security of Land Tenures Act, 1953, the High
Court held that the said provision protects the tenancy and not a
trespasser in possession after expiry of the lease.
Disagreeing with the views and findings of all the hierarchical
courts, the Supreme Court observed that the provisions of the Punjab
Security of Land Tenures Act, 1953 protect the tenancy of agricultural
land in favour of the tenant; that the grounds specified by the said Act
for eviction do not include eviction of tenant after expiry of lease; that
therefore after the expiry of lease the tenant would be a statutory tenant
and such a tenant can be evicted only under one or other grounds
contemplated under Section 9 of the Act and that such eviction
proceedings have to be necessarily initiated before the competent
Revenue Court. In its Judgment, the Supreme court has referred to its
earlier Judgment in Sukhdev Singh (D) through L.Rs. and others Vs.
Puran and others wherein while dealing with the provisions of the
Punjab Security of Land Tenures Act 1953, the Supreme Court held that
after the expiry of fixed term tenancy in respect of agricultural land, the
provisions of the 1953 Act will have no application. The Court in that
case held :
In our view, the aforesaid argument of the learned counsel
does not merit acceptance. Admittedly, the petitioners were
granted lease of the suit land in 1955 for a period of 20 years and
the term of their lease ended in 1975. Section 9 of the 1953 Act
is attracted only when a tenant is sought to be evicted. The said
section is not applicable to a case where the tenancy gets
terminated by efflux of time and the person occupying the lease
premises no longer remains tenant. There is no provision in the
1953 Act similar to those contained in the Urban Rent Control
Legislations under which a tenant becomes statutory tenant after
expiry of the contractual tenure of the tenancy.
While differing with the view in Sukhdev Singh (D) through L.Rs. and
others (15-supra), the Court referred the issue to a larger Bench for
laying down the correct law.
A perusal of the Act and Punjab Security of Land Tenures Act
1953 shows that these Acts contained almost similar if not identical
provisions for eviction of tenants (though the grounds for eviction vary
under the two enactments). The two Judge Bench in Shyam Lal (14-
supra) expressed the view reflected in the Judgment of this Court in
Dhulipalli Subba Rao (13-supra).
From a plain reading of Section 13 of the Act, as interpreted in
Dhulipalli Subba Rao (13-supra), there can be little doubt that for
eviction simplicitor of a tenant, the only remedy available to the landlord
is to approach the Tenancy Court. However, as the debate on the
jurisdiction of the Revenue Tribunals vis--vis civil courts is thrown
open by the Apex Court in Shyam Lal (14-supra) by referring the same
to a 3-Judge Bench, it is neither appropriate nor desirable to render
conclusive findings on this aspect. Nevertheless, this Court has to
consider whether on the facts of the case, the jurisdiction of the civil
court is ousted or not.
In Abdul Waheed Khan (9-supra) Koka Subba Rao,J., as his
Lordships then was, held that under Section 9 of the CPC a civil court
can entertain a suit of every nature except a suit of which its cognizance
is either expressly or impliedly barred; that it is a settled principle that it
is for the party who seeks to oust the jurisdiction of civil court to
establish his contention; and that it is also equally settled that a statute
ousting the jurisdiction of a civil court must be strictly construed.
In Raja Ram Kumar Bhargava (dead) by L.Rs (10-supra),
speaking for the Bench, Venkatachalaiah, J (as his Lordships then was)
held:
Generally speaking, the broad guiding considerations are that
whenever a right, not pre-existing in common-law, is created by
a statute and that statute itself provided a machinery for the
enforcement of the right, both the right and the remedy having
been created uno flatu and a finality is intended to the result of
the statutory proceedings, then, even in the absence of an
exclusionary provision the civil courts jurisdiction is impliedly
barred. If, however, a right pre-existing in common law is
recognized by the statute and a new statutory remedy for its
enforcement provided, without expressly excluding the civil
courts jurisdiction, then both the common-law and the statutory
remedies might become concurrent remedies leaving open an
element of election to the persons of inherence.
It is appropriate to note that the lower Court has rested its
conclusions on issue No.1 relating to jurisdiction based on two
Judgments of this Court in M. Ramaiah (3-supra) and Satyapramoda
Thirthaswamulavaru Vs. Mula Gunnayya (deceased) and others .
It has held :
I have gone through the aforesaid two rulings. The two
decisions clearly held that where one of the reliefs prayed for the
plaint can be granted only by a civil court, then that suit is
maintainable in the civil court, though some of the reliefs can be
granted by Tenancy Tribunal. In this suit also, the defendant
denied the title of the plaintiffs. In the plaint, the plaintiffs are
praying for past and future profits. The relief of past and future
profits cannot be granted by the tenancy tribunal. Therefore,
certainly this suit is maintainable. I answer this issue
accordingly.
Let me therefore consider these two Judgments.
In M. Ramaiah (3-supra) this Court held that the mere fact that a
portion of the claim is excluded from the jurisdiction of Civil Court is no
bar to the trial by the Civil Court of the entire suit which was cognizable
by the Civil Court only. It is appropriate to discuss the facts of the said
case in some detail. The suit property was originally unenfranchised
service inam land. One Polayya who was the head of the family leased
out the suit land to defendant No.1 in the year 1940-41 on sharing
system. Defendant No.1 continued as a tenant holding over and was
paying the agreed share till 1953-54. After the death of Polayya plaintiff
Nos.1 and 2 became the owners of the suit property along with
Mangamma w/o. Polayya. Defendant No.1 continued as a tenant
holding over even after the death of Polayya. On 29-3-1957, plaintiff
Nos.1 and 2 and the said Mangamma sold the land to plaintiff No.3.
Defendant No.1 was duly informed about the same. Defendant No.1
instituted O.S.No.90 of 1957 for grant of permanent injunction
restraining plaintiff No.3 from interfering with his possession. That suit
was decreed. The plaintiffs have filed a suit for declaration of title,
recovery of possession and for the past and future profits. Defendant
No.1 filed a written statement denying that he was a tenant and claimed
himself to be the service holder enjoying the inam. Defendant No.1 later
died. Defendant Nos.2 to 4 were brought on record in place of the
deceased defendant. They have filed written statement adopting the
written statement filed by defendant No.1. They have further raised a
ground that even on the plaintiffs showing defendant No.1 was a tenant
and that the civil court therefore cannot have any jurisdiction to direct
eviction of the defendants. The trial court after framing the issues and
recording evidence adduced by the parties, decreed the suit. The appeal
filed by the defendants was dismissed by the District Judge. The
defendants thereafter have filed the Second Appeal before this Court.
The main contention advanced by the appellants before this Court was
that on the plaintiffs own showing, defendant No.1 was a tenant holding
over on the date of filing of the suit and that therefore the only remedy
they had was to approach the Tenancy Court under Section 13 of the
Act.
Dealing with this issue, the Court has first dealt with the aspect of
the pleadings which determine the jurisdiction. The Court observed that
the jurisdiction with reference to the subject matter of claim depends
upon the averments made in the plaint and not upon those which may
ultimately be found to be true; that mere allegations made by the
defendants in the written statement are not enough to decide the forum
of a suit and that whether a particular suit is cognizable by civil court or
Tenancy Court, it is the allegations made in the plaint which must decide
the question and not the pleas raised by the defendants in the written
statement. The court held :
In a suit in which there are more than one relief claimed and
the some reliefs can be granted by the civil court while the others
can be granted only by a tenancy court, the question naturally
arises as to what procedure should be adopted in such cases.
One mode is to direct the amendment of the plaint so as to bring
it within the jurisdiction of the civil court and allow the plaintiff
to seek remedy in regard to the relief which is cognizable by the
tenancy court. But such a splitting may not be possible in all
cases. In such cases, therefore, as stated earlier, the cause of
action and substance of reliefs asked in the plaint will have to be
carefully examined and if the substantial relief based on the
cause of action can be granted only by the civil court and
splitting of the reliefs is neither possible nor desirable, then it
cannot be argued that the civil court has no jurisdiction to try it.
The Court further held :
A reading of the plaint will disclose that the first
defendant denying the title of the plaintiffs set up a title in
himself and stopped paying rent. On those allegations,
declaration of plaintiffs title was sought apart from claiming the
profits past and future along with the relief for the recovery of
possession of the suit land. While it is true that on the basis of
default and the tenant denying the title of the landlord and setting
up a title in himself a petition for eviction can be filed before the
tenancy court under the Act, it cannot however be denied that the
tenancy court is not competent to grant reliefs of declaration of
plaintiffs title and the profits past and future. It may be that it
can incidentally decide the question of title if it is necessary for
effective disposal of the petition filed under Section 13 of the
Act. There cannot be any doubt that it cannot decide the
question of title finally and the parties will have to agitate the
same before a Civil Court. In the circumstances mentioned in
the plaint the substantial relief in the case is that of declaration of
the plaintiffs title, in the denial of which the defendant was not
only interested but was persisting. It is trite to say that the
plaintiffs who are out of possession cannot ask for mere
declaration of their title. It was, therefore, not possible for the
plaintiffs to split the reliefs and so they were obliged to ask not
only declaration of title but also recovery of possession and the
profits. The entire suit, as it is framed, is cognizable only by the
Civil Court. Although one of the reliefs i.e., recovery of
possession alone may be separately cognizable exclusively by
the tenancy court, it is however abundantly plain that the tenancy
court cannot hear the entire case as it is framed and grant reliefs
claimed by the plaintiffs. It is evident that the jurisdiction of the
civil court will not be considered as barred unless the entire suit
as brought is barred under the provisions of the Act.
Undoubtedly, what are barred are the disputes falling within the
ambit of the Act. The mere fact that portion or the claim is
excluded from the jurisdiction of the Civil Court is no bar to the
trial by the Civil Court of the entire suit which is cognizable by
the Civil Court only. I have, therefore, no doubt that the Civil
Court was competent to entertain the present suit.
In Satyapramoda Thirthaswamulavaru (16-supra) the Division
Bench of this Court referred to and relied upon the Judgment in M.
Ramaiah (3-supra) besides relying upon various other Judgments of
this Court. The said case is more or less similar to the present case on
hand where it was the positive case of the plaintiff that the defendants
were all tenants; that they paid rents till the end of 1365 Fasli and that
they were liable for eviction on the ground of willful default in payment
of rents. However, without approaching the Revenue Tribunal they have
filed the civil suit for a decree for ejectment and for damages and for
past profits for Faslies 1365 to 1367. Repelling the contention raised on
behalf of the defendants that only the Tenancy Court has jurisdiction to
entertain the application for eviction and the civil court had no
jurisdiction, the Division Bench held at para-31 as under :
It is now well established by a catena of decisions of this
Court reported in Chigurupati Venkatasubbaiah vs. Ravi
Punnayya (1957) 2 An.W.R.204), Mahendrada Ramayya vs.
Mahendrada Govindu (1966(1) An.W.R.352) and Donti Reddy
Venkat Reddy vs. Bhimavarapu Bhushireddy (1970) 2
An.WR.226 : AIR 1971 A.P. 87 (FB) that when only a part of
the relief claimed can be granted by a tenancy court, the Civil
Court had jurisdiction to entertain the suit. Indisputably in this
case, the Tenancy Court cannot grant relief for damages and only
a relief of eviction can be granted by the Revenue Court and,
therefore, in our opinion, the civil court has undoubtedly,
jurisdiction to entertain the suit, and the court below was in error
in holding that the civil court had no jurisdiction to entertain the
suit.
The Full Bench of this Court in Dontireddy Venkata Reddy (6-
supra) dealing with the question whether Tenancy Tahsildar can deal
with the question of title in deciding the relationship of landlord and
cultivating tenant, while holding that he has such jurisdiction, made
certain critical observations. The Bench observed at para-32 as under :
A reading of the aforesaid decisions clearly show(s) that
whether a Tribunal has been given the exclusive jurisdiction to
decide a particular circumstance depends upon the language of
the Act and aims and objects for which the Act has been enacted.
If a given Act postulates that on the existence of certain state of
facts the Tribunal will have jurisdiction to decide the matters
entrusted to it under the Act, the Tribunal will no doubt be
competent to decide whether that state of facts exists but the
existence of such state of facts being a jurisdictional factor it
cannot give to itself jurisdiction by a wrong decision as to the
existence of such state of facts. Such a decision would be in
regard to a collateral fact and can be questioned in a Civil Court
and the jurisdiction of the Civil Court is not barred in such cases.
Whereas in cases where the tribunal has been given exclusive
jurisdiction to decide the existence of facts on the basis of which
it could proceed to pass certain orders, the decision on those facts
would also be final and conclusive and cannot be questioned in a
Civil Court.
The Bench further observed at para 33 :
. No doubt in a given case he can determine if dispute arises
with regard to such relationship but such a decision will only be
a decision regarding a jurisdictional fact or a collateral fact and
such a decision can always be questioned in a Civil Court.
There is no quarrel on the proposition that the plaint must be read
as a whole and that the averments in the plaint only determine the
jurisdiction of the courts. In paragraph-4 of the plaint, the respondent
pleaded that the appellant has taken the land on lease in the year 1979.
In paragraph-5 he has averred that the appellant was not paying maktha
after getting into possession; that the respondent has got issued
registered notice dated 26-6-1984; that the appellant has issued a reply
notice dated 11-7-1984 denying tenancy and set up the alleged
agreement of sale between the parties as per which the plaintiff agreed to
sell the property for a sale consideration of Rs.14,000/- per acre and
receipt of part sale consideration by one Polisetti Vasudeva Rao, the
brother of the plaintiff. In paragraph-7, the plaintiff has referred to
another legal notice dated 26-10-1985 by way of rejoinder to which the
appellant has issued reply notice dated 19-11-1985 reiterating all the
averments made in his earlier notice. In paragraphs 8 and 9, which
constitute core pleadings, the plaintiff averred as under :
As the defendant has denied the tenancy and is contending
that the plaintiff has agreed to sell the property to him and as
such he is entitled to continue in possession of the property this
suit is filed for recovery of possession of the plaint schedule
property with past and future profits. The plaintiff is also
entitled to interest on the arrears of Maktha from the respective
due dates and the plaintiff claims interest at 12% per annum.
The plaintiff also claims past profits limiting his claim for 3
years prior to suit.
As already stated, the plaint schedule property belongs to the
plaintiff, he never agreed to sell the plaint schedule property to
the defendant nor did he receive any amount under the alleged
agreement of sale from the defendant and the said Sri P.
Vasudeva Rao was not the agent of the plaintiff and the plaintiff
never authorized him to sell the property. In the second reply
notice the defendant alleged that at the time of construction of
terraced building, the plaintiff agreed to sell the property before
the persons mentioned in his reply notice which is not correct.
There is no need or necessity for the plaintiff to sell the plaint
schedule property for the construction of his terraced building
and the plaintiff never agreed to sell the property to anybody
much less to the defendant to raise funds for the construction of
his terraced building. The defendant is only a tenant but having
entered into possession, he now set up contract of sale which the
plaintiff never entered into with him. The defendant has no right
to continue in possession of the property.
The plaintiff sought the following reliefs in the suit:
(a) For delivery of possession of the plaint schedule property to
the plaintiff evicting the defendant therefrom.
(b) For recovery of Rs.50,119-20 towards past profits with
subsequent interest from the date4 of plaint till date of
payment?
(c) For future profits at the rate to be determined by this Honble
Court from the date of suit till delivery of possession.
(d) To appoint a receiver to manage the plaint schedule property
during the pendency of the suit.
(e) To grant costs of the suit.
(f) To grant such further or other reliefs deemed fit and proper in
the circumstances of the case.
From the facts pleaded in the plaint and the issues framed by the
trial Court, the suit cannot be treated merely as a suit for termination of
tenancy and for recovery of possession simplicitor. Though no relief of
declaration of title was claimed in form, in content, the suit involved a
title dispute. This is not merely a case where the tenant has willfully
denied the landlords title to the land which is the ground envisaged
under Section 13(e) of the Act for seeking his eviction, but also he has
asserted his right to remain in possession dehors the tenancy based on
the purported oral agreement of sale. Issue No.3 and additional Issue
Nos.1 and 2, are very wide in their scope, under which the trial Court
discussed the appellants right based on the oral agreement set up by
him. As held by this Court in M. Ramaiah (3-supra) while the Tenancy
court is a forum created by a special statute, it can exercise limited
jurisdiction which is vested in it by the provisions of the Act. While
exercising its jurisdiction under Section 13 of the Act, the Tenancy
Court may decide the question of title incidentally and it is only the civil
court which has jurisdiction to finally decide that question. Even if the
respondent has approached the Tenancy Court and that Court has
rendered findings on the alleged agreement of sale and the right claimed
by the appellant to remain in possession based on such agreement of
sale, the aggrieved party would have landed the dispute before the lower
court by way of a civil suit.
Following the ratio in M. Ramaiah (3-supra) although one of the
reliefs which is recovery of possession from a tenant is cognizable
exclusively by the Tenancy Court, the jurisdiction of civil court will not
be considered as barred unless the entire suit as brought before it is
barred under the provisions of the Act. As noted supra, this view was
followed by the Division Bench of this Court in Satyapramoda
Thirthaswamulavaru (16-supra) wherein the plaintiff has claimed the
reliefs of decree for ejectment and damages and past profits. The
Division Bench held that the Tenancy Court cannot grant relief of
damages and therefore the Civil Court had undoubtedly jurisdiction to
entertain the suit. The relief claimed in the suit filed by the plaintiffs is
similar to that claimed in Satya Pramoda (16-supra).
It is relevant to note the conduct of the appellant in this context.
He has set up an alleged oral agreement of sale said to have taken place
as far back as October 1979. He has not taken any steps by calling upon
the plaintiff during his life time or the respondents herein who are his
legal heirs thereafter calling upon them to execute the sale deed or filed a
specific performance suit for nearly six years after the so-called oral
agreement of sale. At least after the present suit was filed against him,
the appellant has failed to file the specific performance suit. The
agreement set up by the appellant being oral, he cannot even claim the
benefit of the doctrine of part performance under Section 53-A of the
Transfer of Property Act 1882 as held by the Supreme Court in Mool
Chand Bakhru and another Vs. Rohan and others and by this Court
in Narasayya (12-supra). The appellant has not even set up the plea of
adverse possession. On the one hand he is denying tenancy and on the
other hand he has failed to prove the plea of oral agreement of sale (The
finding rendered on this aspect by the trial court has not even been
contested in his appeal as no submissions in this regard are made by the
learned Counsel for the appellant). On these indisputable facts,
continued possession of the appellant is indenfensible irrespective of
which ever forum decides the case. In fact, the appellant is only seeking
to prolong the litigation by non-suiting the respondents on the plea of
lack of jurisdiction in the civil court. If his plea is accepted and the
respondents are relegated to the Tenancy Court, consistent with his stand
taken in the suit, the appellant will plead absence of tenancy and that
consequently the Tenancy Court has no jurisdiction to order his eviction
in the absence of landlord-tenant relationship. In other words, the
appellant is seeking to use the respondents who are admittedly the
owners of the property and who are denied possession as well as rents
for 35 years, as a foot ball. Even if the respondents have approached the
Tenancy court, its finding not being conclusive on the plea of agreement
of sale set up by the appellant, either party would have approached the
civil court by way of a civil suit. Therefore, on the pleadings of the
parties, no prejudice was caused to the appellant on account of the lower
court entertaining the suit. Indeed, the lower court has conducted a full
fledged trial and made a threadbare discussion on the merits of the case,
including the plea of oral agreement of sale propounded by the appellant.
Therefore, on the facts of the present case, it would be a grave travesty
of justice to non-suit the respondents on the ground of lack of
jurisdiction in the civil court.
On the analysis as above, I hold that the lower court has
jurisdiction to entertain the suit and it has rightly done so.
No other point was argued by the learned Counsel for the
appellant.
For the above mentioned reasons, the appeal fails and the same is
accordingly dismissed.
As a sequel to the dismissal of the appeal, interim order dated
10-8-1994 is vacated and CMP Nos.12020 of 1994 and 13149 of 1994
are disposed of as infructuous.
________________________
Justice C.V. Nagarjuna Reddy
Date : 01-05-2015
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