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Dhulipalli Subbarao Vs. the Siddappa Dharmakunta, Muppuram and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 836 of 1966
Judge
Reported inAIR1971AP262
ActsTenancy Law; Andhra Tenancy Act, 1956 - Sections 10, 11, 13 and 17; Transfer of Property, 1982 - Sections 110 and 111
AppellantDhulipalli Subbarao
RespondentThe Siddappa Dharmakunta, Muppuram and ors.
Appellant AdvocateM.B.R. Rama Sarma, Adv.
Respondent AdvocateP. Kodanda Ramaiah, Adv.
Excerpt:
tenancy - eviction - tenancy law, sections 10, 11, 13 and 17 of andhra tenancy act, 1956 and sections 110 and 111 of transfer of property act, 1882 - eviction petition filed under section 13 (a) - tenant ordered to be evicted on ground of default in payment of rent - another suit filed for damages on ground that occupation of tenant during pendency of eviction petition under section 13 (a) was illegal - whether under andhra tenancy act tenancy continues until eviction or it stands determined when right to evict accrues to landlord - as per section 13 tenancy is not determined unless there is an order of tahsildar so occupation by tenant of land until eviction order cannot be considered unlawful. - - section 8 provides for remission of rent consequent on total or partial failure of..........the term of the lease was five years the tenancy continued by virtue of section 10 (2) of the andhra tenancy act, read with act ii of 1963 was, the maktha for the year 1962-1963 was, under the terms of the lease payable on 1-7-1962. but it was not so paid. on 17-4-1963 the respondent issued a notice to the petitioner calling upon him to pay the arrears of maktha. the maktha was paid on 27-4-1963. thereafter the respondent filed an application under section 13 (a) of the andhra tenancy act for terminating the tenancy and eviction of the petitioner. the application was contested by the petitioner and it underwent number of adjournments. on 2-4-1964 the petitioner surrendered possession to the respondent. the respondent's application for eviction was also ordered on 24-5-1964 on the.....
Judgment:
ORDER

1. This is a revision under Section 25 of the Provincial Small Cause Courts Act. The defendant is the petitioner. The plaintiff-respondent is the Siddappa Dharmakunta, Muppavaram represented by its trustees. By a registered deed dated 4-8-1958 an extent of Ac. 3-14 cents of land was leased to the petitioner for a period of five years, the maktha stipulated being Rs. 340/- per annum. Though the term of the lease was five years the tenancy continued by virtue of Section 10 (2) of the Andhra Tenancy Act, read with Act II of 1963 was, The maktha for the year 1962-1963 was, under the terms of the lease payable on 1-7-1962. But it was not so paid. On 17-4-1963 the respondent issued a notice to the petitioner calling upon him to pay the arrears of maktha. The maktha was paid on 27-4-1963. Thereafter the respondent filed an application under Section 13 (a) of the Andhra Tenancy Act for terminating the tenancy and eviction of the petitioner. The application was contested by the petitioner and it underwent number of adjournments. On 2-4-1964 the petitioner surrendered possession to the respondent. The respondent's application for eviction was also ordered on 24-5-1964 on the ground of default of payment of rent.

The respondent filed SCS. No. 201/1964 in the court of the Subordinate Judge, Ongole for recovery of damages for use and occupation during the agricultural year 1963-64 during which period the respondent alleged that the petitioner was in wrongful occupation of the land. The petitioner contested the suit stating that he had a right to continue as a cultivating tenant until evicted by process of law or until he surrendered the tenancy and that he was liable to pay maktha at the rate of Rs. 340/- per annum only. He had paid that amount and he was to liable to pay anything more. The learned Sub-ordinate Judge held that the occupation of the petitioner was unlawful from the time when the landlord's right to evict him sprang into existence and that the plaintiff was therefore entitled to damages for use and occupation for the year 1963-64. The estimate of damages given by the plaintiff was accepted and the suit was decreed for that sum.

2. Mr. Rama Sarma for the petitioner contends that the occupation of the petitioner of the land during the pendency of the petition under S. 13 (a) of the Tenancy Act cannot be considered to be unlawful and that the order of eviction cannot date back to the date of filing of the application. He contends that the general law of landlord and tenant is abrogated by the Andhra Tenancy Act and that one must look to the provisions of the Andhra Tenancy Act only to discover the rights and liabilities of a tenant. On the other had Mr. Kodanda Ramaiah contends that the general law of landlord and tenant is not abrogated, that the Andhra Tenancy Act merely supplements the general law and that the lower court was right in holding that the possession of the petitioner was wrongful after the right to evict accrued to the petitioner.

3. The Andhra Tenancy Act was passed, as the preamble says, 'to provide for the payment of fair rent by cultivating tenants and for fixing the minimum period of agricultural leases', Section 3 fixes the maximum rent payable by a cultivating tenant. Section 6 provides for determination of fair rent notwithstanding any agreement between the landlord and the cultivating tenant. Section 8 provides for remission of rent consequent on total or partial failure of crop due to natural calamities, Section 10 provides for a minimum period of lease and Section 13 prescribes the conditions governing the determination of the tenancy and evicting of the cultivating tenant. Section 17 says that the provisions of this Act shall have effect notwithstanding anything contained in any pre-existing law, custom, usage, agreement or decree or order of a Court.

Having regard to the scheme of the Act and the various provisions contained in it there can be little doubt that the Act is meant to prevent rackrenting and unreasonable eviction and the secure a fair deal to the tenant by way of fair rent and security of tenure. While on the one had the Act abridges the rights of the landlord under the general law, on the other it enlarges the rights of the tenant. It has made substantial inroads into the existing law of landlord and tenant. The question with which we are now concerned is whether under the Andhra Tenancy Act tenancy must be considered to continue until eviction or whether the tenancy must be considered to be determined when the right to evict accrues to the landlord.

Section 111 of the Transfer of Property Act which deals with the determination of leases of immoveable property runs as follows:-

'S. 111 A lease of immoveable property determines-

(a) by efflux of the time limited thereby;

(b) where such time is limited conditionally on the happening of some event- by the happening of such event;

(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event - by the happening of such event;

(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;

(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;

(f) by implied surrender;

(g) by forfeiture; that is to say-

(1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter, or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; for (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may r-enter on the happening of such event; and in any of these cases the lessor or his transferee these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;

(h) on the expiration of a notice to determine the lease, or to quite, or intention to quite, the property leased, duly given by one party to the other.'

Clauses (a) and (b) of Section 111 are clearly inconsistent with Section 10 of the Andhra Tenancy Act and the latter, therefore, must prevail by reason of Section 17 of the Act. Similarly Cl. (6) of Section 111 must give way to S. 1 of the Andhra Tenancy Act. Clause (d) provides for the coincidence of the interests of the lessee and the lessor. Section 14 of the Tenancy Act provides for the surrender of holding by a cultivating tenant and this corresponds in some measure to Cls. (e) and (f) of S. 111 of the Transfer of Property Act. Clause (g) of S. 111 provides for the determination of the tenancy by a notice given by the lessor to the lessee of his intention to determine the lease by forfeiture in cases where there is breach of an express condition which in turn provides press condition which in turn provides for re-entry, of a lessee setting up an adverse title to the landlord or of the insolvency of the lessee. Clause (h-0 provides for the determination of a tenancy on the expiration of a notice to quit. Therefore, under Cls. (g) and (h) of the Transfer of Property Act the right to determine the tenancy is vested in the landlord and the continuance in possession of the tenant after the determination of the tenancy will be unlawful.

4. On the other hand Section 13 of the Andhra Tenancy Act which is entitled 'Termination of tenancy' runs as follows:-

'S. 13, Notwithstanding anything contained in Sections 10, 11 and 12 no landlord shall be entitled to terminate the tenancy and evict his cultivating tenant during the currency of a lease except by an application made in that behalf to the Tahsildar 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 a 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 maybe put, or

(e) has willfully denied the landlord's title to the land, or

(f) has failed to comply with any order passed or direction issued by the Tahsildar or the Revenue Divisional Officer under this Act.'

It is at once patent that the right of the landlord to determine the tenancy as provided in Cls. (g) and (h) of Section 111 of the Transfer of Property Act is taken away. I am not to be understood as saying anything about the rights which a tenant may have under Cls. (g) and (h) of the Transfer of Property Act. It may be open to the tenant to urge that the right to a proper notice to quite and such other rights possessed by him under these clauses are still available to him and that the rights conferred on him by the Andhra Tenancy Act are in addition to those rights. I am not considering that question. Under the Andhra Tenancy Act the landlord cannot determine the tenancy by an act inter parties. Under Section 13 of the Act the landlord is not given any right to determine the tenancy except by an application made in that behalf to the Tahsildar, that is to say, the tenancy must be determined by an order of the Tahsildar made on an application by the landlord.

It will be noticed that Section 13 does not say that the landlord shall be entitled to terminate the tenancy and evict his cultivating tenant on the happening of certain events but says that no landlord shall be entitled to terminate the tenancy and evict his cultivating tenant unless certain conditions are fulfilled. Unless these conditions are fulfilled there can be neither termination of tenancy nor eviction. One of the conditions is that termination of tenancy and eviction can be had only on an application made in that behalf to the Tahsildar. The effect of Section 13, to my mind, appears to be that the tenancy is not determined unless there is an order of the Tahsildar and therefore the occupation by a tenant of the land until the date of order of eviction cannot be considered unlawful. In the view that I have taken it is not necessary to consider the various cases cited at the Bar, none of which dealt with the situation like the present. The Civil Revision Petition is, therefore, allowed with costs.

5. Petition allowed.


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