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Venigella Parendhamayya Vs. Sri Somasekharaswamy Temple Kotipalli - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 702 of 1965
Judge
Reported inAIR1970AP394
ActsEvidence Act, 1872 - Sections 115; Andhra Tenancy Act; Code of Civil Procedure (CPC), 1908 - Order 20, Rule 12
AppellantVenigella Parendhamayya
RespondentSri Somasekharaswamy Temple Kotipalli
Appellant AdvocateB. Ramalingeswara Rao, Adv.
Respondent AdvocateBalaiah, Adv.
Excerpt:
tenancy - cultivating tenant - section 115 of indian evidence act, 1872, andhra tenancy act and order 20 rule 12 of code of civil procedure, 1908 - landlord proceeded under andhra tenancy act in which present appellant-tenant adjudicated as non tenant - subsequent prayer of appellant-tenant in civil court for benefits under tenancy act - tenant cannot be allowed to approbate and reprobate - held, appellant-tenant not entitled to benefit of provisions of tenancy act. - - 1. the defendant who has been unsuccessful in both the courts below, has come up in second appeal. such implied tenancies comprehends tenancies like those of holding over and if a tenant holing over could get the benefit of the act, there is no reason why a lessee for a period of one year continuing in possession of..........in reply to which he claimed that he is entitled to the benefit of the provisions of the andhra tenancy act. however in a petition filed by the plaintiff herein before the tahsildar for fixation of fair rent under the andhra tenancy act, the defendant contented that inasmuch as no lease-deed for a periods of six years in his favour was executed and registered as contemplated by he andhra tenancy act, the petition for fixation of fair rent was not maintainable. on fair rent was dismissed by the tahsildar and the same was upheld by the revenue divisional officer on appeal filed by the respondent herein. the respondent thereupon has filed this suit for recovery of possession and for past and future mesne profits. the trial court held that the defendant was a tenant holding over.....
Judgment:

1. The defendant who has been unsuccessful in both the courts below, has come up in second appeal. The defendant was inducted into possession as a lessee of the suit lands in 1958 for one year. Notice to quit was issued on 28-4-1959, in reply to which he claimed that he is entitled to the benefit of the provisions of the Andhra Tenancy Act. However in a petition filed by the plaintiff herein before the Tahsildar for fixation of fair rent under the Andhra Tenancy Act, the defendant contented that inasmuch as no lease-deed for a periods of six years in his favour was executed and registered as contemplated by he Andhra Tenancy Act, the petition for fixation of fair rent was not maintainable. On fair rent was dismissed by the Tahsildar and the same was upheld by the Revenue Divisional Officer on appeal filed by the respondent herein. The respondent thereupon has filed this suit for recovery of possession and for past and future mesne profits. The trial Court held that the defendant was a tenant holding over but not entitled to the protection of Andhra Tenancy Act. In that view of the matter, it decreed the suit with costs and directed a separate enquiry into the mesne profits form the date of plaint till delivery of possession. On appeal the principal Subordinate Judge, held that the defendant on the expiry of the period of one years lease stipulated under Exs. A-9 and A-10 , ceased to be a cultivating tenant and confirmed the decree of the trial Court.

2. In this appeal, Sri Ramalingeswara Rao, the learned counsel for the appellant contends that when once it is held that the defendant was a tenant for a period of one year and thereafter continued as such, he is entitled to the benefit of the provisions of the Andhra Tenancy Ac. Now this proposition does not admit of any doubt in view of a decision of a Bench of this Court in Srinivasa Sastry v. Appayya, (1964) 1 Andh WR 37, Chandra Reddy, C. J. speaking for the Bench in a case where 'A' leaded out his lands to 'B' in Fasli 1367 under an unstamped and unregistered agreement, and 'B' continued even after the expiry of the lease, held, that the definition of 'cultivating tenant' in Section 2(c) of the Andhra Tenancy Act, includes not only a person holding a lease under an express agreement but also a person who owns impliedly a tenancy agreement. Such implied tenancies comprehends tenancies like those of holding over and if a tenant holing over could get the benefit of the Act, there is no reason why a lessee for a period of one year continuing in possession of the lands thereafter should be deprived of the 'benefit' of the Act. It is further held in that decision, that a person is a cultivating tenant, notwithstanding that the minimum period of the lease is less than six years. The intention of the Legislature appears to be that no lease should be for a period of less than six years.

3. If the matter had merely depended on the question whether the defendant was entitled to the benefit of the provisions of the Act, on these facts, I would have had no hesitation in holding that he is . But it cannot be ignored that before the institution of the present suit, the landlord had taken proceedings under the Andhra Tenancy Act for the fixation of fair rent, and in that case that present defendant questioned the maintainability of the petition on the express footing that no lease-deed for six years was executed in his favour and consequently the landlord was not entitled to file the petition under the Act. In other words he questioned the jurisdiction of the Tahsildar to treat him as a tenant and fix a fair rent. Having successfully urged that point and obtained an adjudication that he is not a tenant and that the landlord cannot obtain relief of fixation of fair rent before the Tahsildar, he cannot now be permitted to urge in the Civil Court, that the Civil Court has no jurisdiction and that he continues to be a tenant as contemplated by the Andhra Tenancy Act. As rightly held by the Courts below following a judgment of this Courts below following a judgment of this Court in indermull Loniya v. Sub-Judge Secunderabd, (1957) 1 Andh WR 196=(AIR 1958 Andh Pra 779) the tenant cannot be allowed to approbate and reprobate. The learned counsel for the appellant has invited my attention to a decision of the Madras High Court in Sumitramma v. Subbadu, AIR 1943 Mad 22, which takes a different view. But a Bench of this Court in A. N. Shah v. Annapurnamma, : AIR1959AP9 has, after a review of the entire case law on the subject approved the view taken in (1957) 1 Andh WR 196= (AIR 1958 And Pra 779) and held 'the principle of estoppel would apply when a party seeks to take up inconsistent position as to jurisdiction of a Civil Court'. Having succeeded on the question of jurisdiction before the Tahsilda under the Andhra Tenancy Act and obtained an adjudication that no petition for fixation of fair rent leis against him on the footing that he is not a person governed by the provisions of that Act, to may mind, the defendant cannot be allowed to now question the jurisdiction of the civil court to entertain the suit which was filed only to view of the finding given by the Tahsildar in the previous proceedings under the Amdjra Tenancy Act. I therefore agree with the Courts below that the appellant is not entitled to the benefit of the provisions of the Andhra Tenancy Act and to resist the plaintiffs claim for recovery of possession and profits.

4. The leaned Counsel for the appellant next urged that since he was inducted into possession as a tenant and since the temple does not cultivate the lands personally and would necessarily lease them out, the profits recoverable form him should not be anything more than the rent payable for the land. Once it is held that the defendant is not entitled to be treated as a tenant under the provisions of Andhra Tenancy Act, he would not be liable to pay rent but only accountable for the profits or damages for use and occupation of the land. This must accessarily be enquried into separately. In such enquiry of course, the Court will have to take into consideration the fact that these lands would have to be leased out by the temple. But that does not necessarily mean that what the defendant would be liable to pay would be only rent. All these questions can be urged by the defendant in the proceedings that would be taken for determination of the amounts payable by the defendant for having continued in possession of the land, after notice to quit. That is a question of fact to be determined on the evidence. The lower Courts were therefore in my opinion right in decreeing the plaintiff's suit for recovery of possession and for profits. It is however made clear that the enquiry would be limited to the profits payable for the period commencing from the date of the institution of the suit up to the date of delivery of possession and so far as past profits are concerned, even the lower court has granted only Rs. 42-50 Np. with 5.5 per cent per annum interest, and the same is hereby confirmed.

5. The appeal is therefore dismissed with costs.

6. Appeal dismissed.


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