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Firm of Nainsukhdas Baldeodas and anr. Vs. Assistant Collector, Vizianagaram and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 171 of 1962
Judge
Reported inAIR1966AP272
ActsConstitution of India - Article 226; Andhra Tenancy Act, 1956 - Sections 2, 11 and 13; Tenancy Law
AppellantFirm of Nainsukhdas Baldeodas and anr.
RespondentAssistant Collector, Vizianagaram and ors.
Appellant AdvocateN. Narasimha Ayyangar, Adv.
Respondent AdvocateC.V. Dikshitulu, Adv.
DispositionPetition allowed
Excerpt:
.....of constitution of india and sections 13, 11 and 2 (f) of andhra tenancy act, 1956 - respondent committed default in payment of rent when vendor was landlord - petitioner become landlord - whether petitioner can seek eviction under section 13 - section 2 (f) does not distinguish between previous landlord and present landlord - held, petitioner as matter of right can seek eviction under section 13. - - a-4 does not clearly say whether the reference to rs. no doubt, the assistant collector has, as extracted above, said that the amount had been adjusted, but as stated earlier, he has failed to take into account other material evidence on record which may perhaps have created a different result. that gives me no option but to quash the orders of the assistant collector as well as the..........any assistance to the respon dent.11. what follows from the above said discussion is that if the tenant committed any default in payment of rent wholly or partly for the year 1957-58, the present petitioner, who is the vendee, can fake advantage of that default and seek eviction on that ground under section 13 of the andhra tenancy act. it may be that the decisions cited above related to the rent acts in regard to the buildings but that, in my opinion, does not make any substantial difference inasmuch as the provisions of that act are in pari materia with that of the andhra tenancy act. the principle laid down in those decisions can, therefore, effectively be applied to a case arising under the andh tenancy act.12. in the view which i have taken about the default alleged to have been.....
Judgment:
ORDER

Gopal Rao Ekbote, J.

1. This is an application under Article 220 of the Constitution questioning the legality of the order passed by the Assistant Collector on 17-10-1960. It arose in the following circumstances: The property in question was mortgaged. The mortgagee instituted a suit O. S. No. 193 of 1938 and obtained a decree for sale on 24-2-1942. A receiver seems to have been appointed on 5-8-1948. That receiver gave the lands in question on lease for one year at an annual rent of Rs. 400 to the respondent. That amount was to be paid in two instalments, one by September, and the other by December. The first receiver appointed subsequently died and one Rajeswara Rao was thereupon appointed as the receiver. The receiver obtained permission to privately sell the land on 2-12-1954 from the concerned Court in pursuance of which the receiver called for tenders. As the tender of the petitioner was the highest, it was accepted with the permission of the High Court on 6-2-1958. The required sale-deed was executed and registered on 17-4-1958. The receiver issued a notice to the respondent on 28-1-1958 informing him of the sale. The tenant thereupon through his reply, dated 6-5-1958 contended that under Section 10 (2) of the Andhra Tenancy Act, he is entitled to continue as a tenant although the lease period was over.

2. On 11-10-1958, the petitioner filed an application under Section 13 of the Andhra Tenancy Act for eviction on various grounds. That petition was resisted by the tenant. The Tahsildar, who had heard that petition, dismissed the application holding that the tenant has not committed any default. He also held that any default committed during the time when the vendor was the landlord cannot be taken advantage of by the vendee. In regard to Section 11, he held that the tenant can continue under Section 11 (2) of the Act. The landlord, therefore, wont in appeal before the Assistant Collector. His appeal, as stated earlier, was dismissed by him. He almost concurred with the opinion expressed by the Tahsildar. It is this view of the Assistant Collector which is now assailed before me in this writ application.

3. Three contentions were raised by Mr. Narasimha Iyengar, the learned counsel for the petitioner. It was firstly urged that the tenant had deposited Rs. 200 with the receiver at the time when he took the lands on lease. Although the receiver, according to Ex. A-4, gave notice to the respondent that the said amount will be adjusted towards the amount due for the year 1957-58, the tenant had withdrawn that amount and consequently the amount could not be adjusted. The tenant thus was in default to that extent. His contention is that the vendee can take advantage of any default committed during the time when the vendor was the landlord. Secondly, it was 'urged that there has been default not only in the year 1958-59 but also subsequently till today. The tenant has not so far paid anything towards the rent. It was finally urged that in view of Section 11 of the Act, as the period of lease has come to an end, the tenant must be evicted as he cannot take advantage of Section 10 (2) of the Act.

4. As far as the first contention is concerned, the Tahsildar, in his order, dated 30-4-1959, did not consider at all the material on record to determine the rival contentions that the amount deposited was withdrawn or not, and consequently to that extent the tenant was in fact a defaulter or not. The appellate authority, however, in its order stated:

'A perusal of this notice (Ex. A-4) would reveal that the receiver agreed to adjust the arrear amount of Rs. 200 deposited by the respondent towards arrear of rent of 1957 and he actually withheld its refund even after the rate of the lands in favour of the appellants.'

After discussing whether the vendee can take advantage of any default committed during the time when the vendor was the landlord, the appellate authority stated:

'It is also in evidence that this amount has been adjusted by the Receiver (Ex. A-4). I, therefore, hold that the respondent has not committed default in payment of rent for the year 1957'.

It is thus obvious that while the Trial Court did not apply its mind to this central question at all, the Appellate authority based its conclusion on Ex. A-4 alone. Exhibit A-4 twice: refers to the deposit of Rs. 200. The first reference is in the following terms:

'That now the said Rs. 200 shall be appropriated by me towards the rent or cist for the year 1957'.

At the end, it is stated:

'Besides the amount Rs. 200 deposited with me for tender has been adjusted towards arrears of cist for the year 1957.'

It is not thus clear from Ex. A-4 as to whether the first reference is to the same amount referred to at the end of the letter. Admittedly, the rent due savs Rs. 400. There is no mention anywhere that the balance of Rs. 200 was paid to the receiver by the tenant. In the absence of any such statement, Ex. A-4 does not clearly say whether the reference to Rs. 200 is to one item or to two different items covering the rent of Rs. 400. The language employed in making reference to this amount indicates in the beginning that it will be adjusted whereas at the end it is stated this has already been adjusted.

Exhibit A-1 was written by the receiver who came in the witness box. From his statement it appears that the amount of deposit was already withdrawn by the tenant. The tenant seems to have given a reply to Ex. A-4 which also was produced (Ex. A-5). Exhibit A-5 is A reply given by an Advocate on behalf of the tenant. I find no reference to the amount of deposit made in that reply. Although there is other evidence on record, neither the Tahsildar nor the Assistant Collector evaluated the evidence, applied their mind to this question and arrived at a clear conclusion. No doubt, the Assistant Collector has, as extracted above, said that the amount had been adjusted, but as stated earlier, he has failed to take into account other material evidence on record which may perhaps have created a different result. It is for the Tribunal to evaluate the evidence and reach the conclusion on fact. This Court will not sit in appeal if after faking into consideration the entire material available the Tribunal reaches a particular conclusion.

In this case, however, the Tahsildar did not apply his mind at all, and the Appellate Authority omitted to take into consideration the other evidence, but relied merely on Ex. A-4 which as stated earlier is not free from doubts. That gives me no option but to quash the orders of the Assistant Collector as well as the Tahsildar and direct the Tahsildar to evaluate the material and give a definite finding as to whether the amount in deposit, Rs. 200, has in fact been adjusted or not. In other words, he has to definitely reach a conclusion in regard to the alleged default for the year 1957-58.

5. In regard to the two other contentions, in the view which I have taken about the case, it does not seem to me necessary to express any opinion. It is, however, sufficient to say that if ultimately the Tribunal comes to the conclusion that there has been default for the year 1957-58, then the vendee can take advantage of the default committed at the time when the vendor was the landlord. I am not disposed to agree with the contention that as the arrears of rent have not been transferred by the sale-deed executed on 17-4-1958, the present petitioner cannot take advantage of any default committed in regard to the payment of rent for a period anterior to the sale-deed. Reliance was placed by the learned counsel for the respondent in support of this contention on Sections 54 and 55 of the Transfer of Property Act. It is true that the arrears of rent due were not transferred to the vendee and he is, therefore, not entitled to recover that amount. The question is not whether he is entitled to any amount, but the real question is whether he can take advantaga of the default committed during the time of the previous landlord,

6. The definition of 'landlord' occurring in Section 2 (f) is in the following terms:

'landlord' means the owner of a holding or part thereof who is entitled to evict the cultivating tenant from such holding or part, and includes the heirs, assignees, legal representatives of such owner, or person deriving rights through him;'

On an examination of this definition, it becomes plain that the definition does not distinguish between the previous landlord and the future landlord, but categorically includes within the connotation of that expression not only the heirs and legal representatives of the previous owner, but also the assignees. The present assignee, therefore, falls within the ambit of that definition. Section 11 further clarifies this position. It says that in the event of a change in the ownership of any land during the currency of a lease, the cultivating tenant shall he entitled to continue the tenancy on the same terms and conditions as before, for the un-expired portion of the lease. Thus, the tenant is allowed to continue on the same terms and conditions. It must necessarily follow that the obligations attached to that tenancy would also be carried along with that transfer. There is nothing in any other provision of the Andhra Tenancy Act which would persuade me to hold that the transferee cannot take advantage of a default committed at the lime of the previous landlord. Section 13 does not, in my opinion, go contrary to this conclusion. Mr. Dikshitulu relies on that section in order to contend that the word 'landlord' used in that section should be understood to mean that landlord during whose time the default is committed. I find no warrant for such interpretation. The expression used in Section 13 (a) 'has failed to pay the rent due by him' does not, in my Judgment, mean that the failure to pay the rent must have occurred after the present petitioner purchased the land.

7. I had occasion to consider a similar question, although not arising out of the Andlua Tenancy Act, in C. B. P. No. 675 of 1962, decided on 18-4-1963: : AIR1965AP81 . After elaborately discussing the relevant provisions of the Andhra Pradesli Buildings (Lease and Rent Control) Act and the provisions of the Civil Procedure Code, and after considering the case law cited to me, I reached the conclusion that a transferee of the building is entitled to take advantage of not only the cause of action which arose at the time when the previous landlord was the owner, but continue the proceedings which he had initiated or execute the decrees for eviction which the previous landlord had obtained. In particular, I had relied on Apparao v. Salimunnisa, (1955 1 Andh WR 894 and Somasundara v. Madras Provincial Co-operative Marketing Society Ltd., : AIR1950Mad711 . In the latter case. Chief Justice Rajamannar observed:

'There is nothing from which it can be urged with any force that the transfer or subletting must have been made not merely after the commencement of the Act but also after the date on which the petitioning landlord became a landlord. According to the definition, the term 'landlord' would include both the vendor and the purchaser. It appears to be an unreasonable construction to confine the rights of the landlord to rights which accrued to him only after he became a landlord.'

The decision in the earlier ease was also to the same effect.

8. In Shah Dhanaraj Kantilal v. Additional Judge, Court of Small Causes, Madras, (1949) 2 Mad LJ (SN) 28, a Bench of the Madras High Court decided:

'After the death of a landlord who had applied for eviction on account of the tenant's default, the landlord's son is the landlord and so far as the default is concerned there is a default in payment of rent to the landlord. It is not as if the right to claim eviction was something peculiarly personal to the father which could not survive him. Accordingly it cannot be said that the deceased landlord's son could not claim the benefit of the default which occurred during the life-time of his father.'

9. Writ Petn. Nn. 358 of 1962, decided by my learned brother, Jaganmohan Reddy, J., on 2--9-1963 (AP) is not, in any manner, contrary to what I bad held in the above cited Civil Revision Petition. In fact, it substantially corroborates the approach which those decision have made.

10. Mr. Dikshitulu, however, relies upon India Steamship Co. Ltd. v. P. Singh, : AIR1958Cal426 . Renupada Mukherjee, J. disagreeing with an earlier decision of a single Judge in Civil Rule No. 1219 of 1959 (Cal) held that

'Section 14 (4), as it occurs in the statute of 1950, is not so much a section penalising a defaulting tenant as a section enabling the landlord to recover his arrears in a summary fashion without having recourse to a regular suit for recovery of such arrears. A person, who has no right to such arrears cannot obviously maintain or prosecute such an application started by his predecessor-in-interest'.

With due respect to the learned Judge, I do not agree with that view, particularly when this Court and the Madras High Court have consistently held the view that the transferee can continue the proceedings initiated by the previous landlord. The other decision relied upon by the learned, counsel for the respondent is Birdhichand v. Mannklal. AIR 1960 Madh Pra 121. That decision held:

'The respondent No. 1 is not entitled to rake advantage of any default that the petitioner might have made in paying rent to his predecessor, who, in accenting the rent, presumably waived the defaults.'

It is plain that this decision cannot render any assistance to the respondent because there is no allegation in this case that although the default was committed by the respondent, it was also waived by the previous landlord. The question whether such a waiver can be made under the Andhra Tenancy Act has been discussed by this Court holding that there is no question of waiver as far as the default committed under the Andhra Tenancy Act is con penied. See Ramachandra Rao v. Venkata Lakshminarayana, (1963) 2 Andh WR 235: (ATR 1964 Andh Pra 31). This decision followed the view earlier held by a single Judge of this Court in Parasuramulu v. Suryanarayanamurthy, (1961) 2 Andh WR 312. The decision of the Madhya Pradesh High Court is therefore not of any assistance to the respon dent.

11. What follows from the above said discussion is that if the tenant committed any default in payment of rent wholly or partly for the year 1957-58, the present petitioner, who is the vendee, can fake advantage of that default and seek eviction on that ground under Section 13 of the Andhra Tenancy Act. It may be that the decisions cited above related to the Rent Acts in regard to the buildings but that, in my opinion, does not make any substantial difference inasmuch as the provisions of that Act are in pari materia with that of the Andhra Tenancy Act. The principle laid down in those decisions can, therefore, effectively be applied to a case arising under the Andh Tenancy Act.

12. In the view which I have taken about the default alleged to have been committed in 1957-58, and when I am remanding the case to the Tahsildar for a fresh disposal, it is not desirable that I should express any opinion upon the two other grounds urged before me by the counsel for the parties. It would be open to them to agitate the same before the Tahsildar. In view of the fact that the Tahsildar has not applied his mind to this question it seems to me advisable that the parties should be given reasonable opportunity to adduce such evidence in support of their rival contentions as they desire. The Tahsildar, after providing such opportunity and recording the evidence, if any should dispose of the petition in the light of what has been stated above.

13. The Writ petition is, therefore, allowed and the orders of the Assistant Collector and the Tahsildar are quashed. In the circumstances of the easy, however, there will be no order as to costs.


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