THE HON’BLE SRI JUSTICE V.SURI APPA RAO C.R.P. No.6136 OF 2003 Dated 24.04.2014 Between:
Yatagiri Sri Rama Narasimha Rao and others .. Petitioners and Jonnalagadda Tirumurthulu and others .. Respondents THE HON’BLE SRI JUSTICE V. SURI APPA RAO C.R.P. No.6136 OF 2003 ORDER:
This revision petition is filed under Article 227 of the Constitution of India challenging the judgment dated 25.08.2003 in ATA No.84 of 1998 passed by the Appellate Authority under the A.P. Tenancy Act, District Judge, East Godavari, Rajahmundry, whereby the learned District Judge allowed the appeal by setting aside the order dated 07.09.1998 in A.T.C.No.45 of 1983 passed by the Special Officer-cum- Principal Junior Civil Judge, Rajahmundry directing the respondents/tenants to vacate the petition schedule property within two months.
2. For the sake of convenience, the parties herein are referred to as they are arrayed before the trial Court.
3. The brief facts of the case are hereunder:
Yatagiri Srirama Narasimharao, first petitioner, is the owner of the petition schedule property known as ‘Kallikondapadu’. Out of which an extent of Ac.1-00 was originally leased out to one Jonnalagadda Chittabbayi, the father of the second respondent and brother of the first respondent, under a registered lease deed dated 24.03.1943 and the remaining extent was leased out to one Jalem Venkanna and others under a registered sale deed dated 21.03.1921. The first respondent Jonnalagadda Rattayya got transferred the lease hold interest in his favour subsequently from the said Jalem Venkanna. Therefore, both the respondents are jointly cultivating the petition schedule lands and paying the respective half shares at Rs.20/- per acre per annum. As per the terms of lease deeds and if the rent has to be paid by 14th day of January of every year the respondents commits default in payment of rent for three consecutive years, they are liable to be evicted. When the respondents failed to pay the rent for the year 1980, a registered notice dated 31.08.1980 was issued and subsequently they paid their respective half shares on 03.09.1980 and 10.09.1980 and obtained receipts without prejudice to the contents of the petitioners. Thereafter, the respondents failed to pay the rents for the year 1981, 1982 and 1983 and thus violated the terms of the lease and committed default. The petitioners, therefore, got issued legal notice dated 17.05.1983 demanding the respondents to vacate the schedule property and for recovery of arrears of rent and after receiving the said notice, the respondents did not pay rent or issued any reply. Subsequently, the respondents sent the rent by way of money order which was received by the petitioners without prejudice to their contentions to seek eviction. The petitioners/landlords, therefore, filed the petition seeking eviction.
4. During the pendency of the petition, first petitioner, Yatagiri Venkata Narasimha Rao died, and petitioners 2 to 7 were added as his legal heirs. Subsequent to filing of the petition, the first respondent Jonnalagadda Rattayya died and the third respondent was added as legal representative and subsequently, the third respondent also died and respondents 4 to 7 are added as his legal representatives.
5. Second respondent, Jonnalagadda Trimurthulu filed counter and the same was adopted by other respondents. The respondents contended that their father took Ac.01.00 land out of the petition schedule land under registered permanent lease deed dated 24.03.1943 on an annual rent of Rs.3/- payable by Makarasankranthi every year. The remaining extent of the petition schedule land was leased out to Jalem Venkanna and others on permanent lease deed dated 21.03.1921 at the same rate. Therefore, the annual rent payable for the entire petition schedule land is only Rs.12/-. The first respondent got transferred the lease hold rights of Jalem Venkanna and others and he became the lessee in respect of Ac.3.00 of land. After the death of the first respondent and his brother Chittabbayi, who were living jointly by the date of execution of lease deeds, they used to cultivate the land jointly by paying maktha of Rs.12/- to the petitioner as annual rent. The first respondent and his brother Chittabbyi divided their properties and in that partition the lease hold land was also divided into two halves, each having Ac.02.04 cents of land. After the death of Chittabayi, his lease hold rights were devolved on the second respondent. Thus, respondents 1 and 2 are permanent lessees in respect of Ac.02.04 cents of land. Therefore, the petition filed against them is not maintainable under law. It is further contended that the lease in favour of respondents is a permanent lease, the petitioners have no right to evict the respondents from the schedule land. If at all the respondents committed default in payment of rent for three consecutive years, the only remedy of the petitioner is to sue for arrears of rent, but not for eviction. The petitioners used to visit the village to collect the rents for every two or three years. During the years 1980-81, 1981-1982 and 1982-1983, the respondents approached the petitioners several times and offered to pay the rents. When the petitioners failed to visit the village and collect the rents, as usual, the petitioners refused to receive the rents stating that he would collect the rents in lump sum whenever he requires the amount. Therefore, the respondents kept quiet. The default in payment of rent was occasioned due to the conduct of the petitioners. Soon after receipt of notice dated 17.05.1983, the respondents sent the rent by way of money order. Therefore, there was default on the part of the respondents/tenants in not paying the rents. When the petitioners/landlords refused to receive the rents for the subsequent years, they are depositing the rents to the credit of the petition. It is further contended that the provisions of the A.P. Tenancy Act are not applicable to the lease in favour of the respondents. Since the respondents are permanent lessees, they cannot be evicted by the petitioners. Therefore, the petition is liable to be dismissed.
6. PW.1 was examined on behalf of the petitioners and got marked Exs.A.1 to A.9. RWs1 to 3 were examined on behalf of the respondents and got marked Exs.B.1 to B.7.
7. Relying on the oral and documentary evidence adduced by both parties, the learned Principal Junior Civil Judge allowed the petition filed for eviction of the respondents on the ground that the respondents/ tenants committed default in paying the rent and they have no right to continue the schedule property and directed the respondents to vacate the premises within two months.
8. Aggrieved by the aforesaid eviction order passed by the Principal Junior Civil Judge, the respondents/tenants preferred appeal A.T.A.No.84 of 1998 before the Appellate Authority under the A.P. Tenancy Act, District Judge, East Godavari, Rajahmundry. The learned District Judge after hearing both counsel allowed the appeal filed by the tenants and set aside the impugned order dated 07.09.1998 in A.T.C.No.45 of 1983 passed by the Principal Junior Civil Judge, Rajahmundry on the ground that the landlord cannot avail the provisions of Section 13 to the tenants in view of the Division Bench of this Court in KANTHETI SESHARATNAMMA v AKKINENI SATYANARAYANA AND
[1]
OTHERS . Aggrieved by the judgment of the District Judge, East Godavari, this revision petition is filed by the landlords.
9. Learned counsel for the revision petitioners/landlords submitted that the respondents/tenants admitted in the counter that they have not paid the rents from 1981 to 1983 within the period stipulated, therefore, the learned District Judge ought to have confirmed the order passed by the Principal Junior Civil Judge in ATC on the ground of default itself. It was further submitted that the learned District Judge totally erred in holding that the lessor cannot avail the provision under Section 13 of the Act for evicting the tenants. It is further submitted that under the Inams Abolition Act, unless the Settlement Officer either suo motu or on application gives a decision under Section 3 or under Section 10-A, the tenants do not derive any rights under the Inams Abolition Act and that the tenants have not filed any application before the Settlement Officer for patta within six months from the date of commencement of A.P.(AA) Inams (Abolition & Conversion into Ryotwari) Amendment Act, 1974. Therefore, the tenants have no right under the Inams Abolition Act.
10. In support of his contention, learned counsel for the revision petitioners relied on the decisions in CHITTOOR CHEGAIAH AND OTHERS v PEDDA JEEYANGAR MUTT AND ANOTHER
[2]
,
[3] U.PAPPANNA SASTRY v NAGA VENKATA SATYAVATI
and G.VEERASWAMY ETC v UPPARDASTA PAPANNA SASTRULU
[4]
. In CHITTOOR CHEGAIAH AND OTHERS ‘s case (2 supra) the Supreme Court held that:
“A person shall qualify to be a landlord under the meaning of the Act if he is entitled to evict the tenant such entitlement can arise either directly due to the agreement entered into by providing the time period of tenancy or by providing the conditions or terms of tenancy violating which the tenant may be evicted under Section. There can be no reason why a permanent lease which provides terms would not result in a tenant-landlord relationship since it is implied in such an agreement that non fulfillment of the prescribed terms would give the right to the landlord to evict the tenant. One such term can be payment of periodic rent.”
11. In U.PAPPANNA SASTRY’s case (3 supra), this Court held:
“An owner of holding who has granted a permanent lease in favour of a cultivating tenant as is understood by Section 3 of the Act, is a landlord within the meaning of Section 2 (f) of the Act if he has reserved to himself right to evict the tenant for non- payment of rent, and he is entitled to evict that tenant under Section 13 of the Act.”
12. In G.VEERASWAMY ETC’s case (4 supra), this Court held:
“Ryots possessing permanent tenancy rights are not persons holding lands under such tenancy agreements and are therefore not ‘cultivating tenants’ within the meaning of the Act. Landlords to be landlords within the meaning of the Act must possess the right to determine a tenancy on the expiration of the period of lease. A landlord who has granted a permanent lease does not possess such a right even if he has reserved to himself the right to determine the tenancy for default of payment of rent. Therefore, the Andhra Tenancy Act does not apply to cases where tenants possess permanent tenancy rights even though the landlord possess a limited right to evict.”
13. In Kantheti Sesharatnamma’s case (1 supra), this Court held:
“The essential ingredient of the definition of ‘landlord’ in Section 2(f) of the Andhra Tenancy Act, is the rights to evict the cultivating tenant. In order to avail himself of the right derived from section 13, the lessor should be entitled to evict the cultivating tenant. In the absence, therefore, of any term in the lease itself empowering the landlord-lessor to enter upon the land for non-payment of rent or to have the tenant evicted, and the lease admittedly providing only for a right to sue for the recovery of rent, it could not be said that the permanent lessor could be described as a ‘landlord’.
‘Section 13 of the Act does not create a new of type landlord. It only confers certain rights on persons who are landlords falling within the ambit of the Act. The Act did not intend to create new rights in the lessors and destroy the rights possessed by the tenants. Section 13 has not given certain right to lessors which did not accrue to them under the lease and which they do not possess under the general law. Therefore, a permanent lessor does not satisfy the requirements of section 2(f) of the Act and cannot avail himself of the provisions of Section 13.’
14. Relying on the above decisions, learned counsel for the revision petitioners submitted that as per the terms of the lease deed executed between the parties, the tenants are liable to be evicted if they committed default in payment of rents consecutively for three years. In the counter itself, the respondents/tenants have admitted that they have committed default in payment of rents and they have paid rents by way of money order and that the petitioners/landlords are entitled to invoke Section 13 of the Act seeking for eviction of the tenants on the ground of committing default.
15. Per contra, learned counsel for the respondents/tenants submitted that the petitioners/landlords are not in the habit of passing receipts
whenever they received the rents and they used to collect rents by visiting the village whenever they need money. The revision petitioners did not visit the village for collecting rents they could not pay the rents and the tenants are not in the habit of sending the rents by way of money order and as the petitioners/landlords are directed the tenants to pay rents whenever they visited the village. Soon after receipt of the notice from the landlords, the respondents/tenants immediately sent the rent by way of money order and the same was accepted by the landlords. Therefore, there was no willful default on the part of the tenants in payment of rents. Learned counsel for the respondents/tenants further submitted that the landlords wantonly did not collect the rents from the respondents/tenant for three years only to see that they should be evicted from the schedule premises. It is further contended that the lease is permanent, the petitioners/landlords cannot invoke the provision under Section 13 of the Tenancy Act which has no application to the facts of the case.
16. Learned Special Officer-cum-Principal Junior Civil Judge relying on the judgment of this Court in M.PARASURAMULU v
[5]
S.SURYANARAYANA MURTHY allowed the application filed by the revision petitioners holding that the respondents/tenants committed default in payment of rents in time though subsequently it was received by the landlord, the respondents would not get any right in the schedule property as such they are liable to be evicted.
17. In the instant case, admittedly the respondents/tenants committed default in payment of rents from 1980 to 1983 within the grace period. Subsequently, they paid rents in lump sum for three years rent by way of money order on 03.06.1983 after receiving Ex.A.4-notice from the landlords. It is further, therefore, clear that the respondents/tenants have committed default in payment of rents continuously for a period of three years. The revision petitioners/landlords received rents sent by money order under protest. The same was intimated in writing under Exs.B.4 and B.5. It is also an admitted fact that after the Inams Abolition Act, the respondents/tenants have not submitted any application for grant of patta and no patta was granted to the respondents/tenants. Therefore, the respondents/tenants cannot claim right in the petition schedule property. Admittedly, the petition schedule properties are Inam lands and the respondents/tenants have not submitted any application to the Settlement Officer for grant of patta and no patta was granted to the respondents/ tenants by the Settlement Officer as required under the provisions of the Act. Therefore, with the issuance of Exs.B.6 and B.7 pattedar passbooks by MRO, the respondents/ tenants will not get any right over the schedule property. Exs.A.7 and A.8 are lease deeds under which the respondents/tenants were cultivating the land belonging to the petitioners in both lease deeds. It is specifically mentioned that the landlords are preserving their right of eviction if the respondents/tenants committed default in payment of rents consecutively for a period of three years and that the respondents/tenants cannot claim permanent lease without paying the rents regularly. In view of the specific recital in Exs.A.7 and A.8, lease deeds, under which the respondents/tenants were authorized to cultivate the lands, the respondents/tenants are liable to be evicted by the landlords as the respondents/tenants committed default in payment of rents consecutively for a period of three years. Admittedly, the respondents/tenants committed default for the years 1980 to 1983 within the statutory period under Exs.A.7 and A.8. After filing of the petition by the landlords, the respondents/tenants are depositing rents in the Court. Having regard to the specific terms and conditions in Exs.A.7 and A.8, lease deeds, provisions of Section 13 of the Act confers right on the landlords to get the tenant evicted, if the tenants fails to pay the rent within time specified in the lease deeds. Acceptance of rents after the time specified under Section 13(a) does not neither make that acceptance a payment within the meaning of Section 13(a) nor can thereby itself to be construed as waiver entitling the tenant to continue in possession. The specific terms used in the lease deeds i.e. Exs.A.7 and A.8 clearly indicate that failure of paying rents by the tenant within the grace period from the dates in lease deeds would make him a defaulter. Though the respondents/tenants are contenting that these revision petitioners are visiting the village and collecting the rents, the respondents/tenants cannot keep quiet by not paying the rents consecutively for three years. In such a situation the respondents/tenants are expected to issue notice to the landlords specifying their readiness to pay the rents and asking the landlords to come and collect rents. The revision petitioners/landlords accepted the rent sent by the respondents/tenants by way of money order under protest. It does not amount to waiver and that the landlords are entitled to file petition for eviction of the defaulting tenants.
18. In the instant case, the petitioners received rents from the respondents/tenants under protest and that the amended Act does not take away the right of the revision petitioners to file petition for eviction on the ground of failure of tenants to pay rents. The Special Officer after considering all the above aspects rightly allowed the petition filed by the revision petitioners and that the first appellate Court is not justified in setting aside the order passed by the Special Officer.
19. In the result, the civil revision petition is allowed setting aside the judgment dated 25.08.2003 passed by the Appellate Authority under the A.P.Tenancy Act, District Judge, East Godavari, Rajahmundry in A.T.A.No.84 of 1998, and the order dated 07.09.1998 passed by the Special Officer-cum-Principal Junior Civil Judge, Rajahmundry in A.T.C.No.45 of 1983 is hereby confirmed. The respondents/tenants are directed to vacate and handover the vacant possession of the schedule land to the revision petitioners/landlords within six months from the date of receipt of copy of this order. There shall be no order as to costs.
20. Miscellaneous petitions pending in this petition, if any, shall stand closed.
V.SURI APPA RAO, J Dated: 24.04.2014 Kvrm THE HON’BLE SRI JUSTICE V.SURI APPA RAO C.R.P. No.6136 OF 2003 Dated 24.04.2014
[1] AWR 1963(2) 32
[2] AIR 2010 SC 1278
[3] AIR 1972 AP 53
[4] AWR 1969 359
[5] AIR 1961 ALT 865