Rayavarapu Nageswara Rao vs Garimella Annapoornayya Sarma
2023 Latest Caselaw 5741 AP

Andhra Pradesh High Court - Amravati

Rayavarapu Nageswara Rao vs Garimella Annapoornayya Sarma on 1 December, 2023

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    APPEAL SUIT No.2012 OF 2002

JUDGMENT:

-

This Appeal, under Section 96 of the Code of Civil Procedure

[for short 'the C.P.C.'], is filed by the Appellant/Defendant

challenging the Decree and Judgment, dated 20.09.2002, in O.S.

No.68 of 1998 passed by the learned I Additional Senior Civil Judge,

Kakinada [for short 'the trial Court']. The Respondent herein is the

Plaintiff in the said Suit.

2. The Respondent/Plaintiff filed the above said suit praying the

Court to evict the defendant from the plaint schedule property and

put the plaintiff in possession of the same and also to recover an

amount of Rs.10,500/- from the defendant with subsequent interest

and costs.

3. Both the parties in the Appeal will be referred to as they are

arrayed before the trial Court.

4. The brief averments of the plaint, in O.S. No.68 of 1998, are as under:

2 VGKRJ AS 2012 of 2002

i) The plaintiff is the owner of the plaint schedule property, which is

a mango tope, in an extent of Ac.2.91½ cents situated in Chollangi

village. The usufruct of the mango tope is being sold to third parties,

who will take the usufruct during the season after paying the value

of the usufruct. The plaintiff constructed a thatched house in the

schedule land for the stay of the watchman. Previously the plaintiff

appointed one T.Veerabhadrarao as watchman for the schedule

property and he stayed in the said thatched house and in the year

1991 the said Veerabhadrarao vacated the thatched house. Then

the defendant requested the plaintiff to permit him to stay in the

thatched house by promising that he will watch the mango tope.

The defendant also promised to vacate it whenever the plaintiff

wanted him to do so. The defendant was also bringing the

purchasers for the usufruct in the mango season. During the year

1995-1996 the defendant wanted to take the usufruct for himself for

an amount of Rs.4,500 and he paid an advance of Rs.3,000/- for

which the plaintiff passed a receipt noting the balance amount

payable by the defendant. Thus, the defendant is only a licensee in

the thatched house to watch the property and for the year 1995-

1996 he is a licensee for the limited purpose of taking away the 3 VGKRJ AS 2012 of 2002

mango usufruct. When the plaintiff made a demand for payment of

balance usufruct amount of Rs.1,500/-, the defendant got issued a

notice on 02.04.1996 by claiming tenancy rights. Thereupon the

plaintiff got issued a reply notice on 06.05.1996 demanding the

defendant to vacate the plaint schedule property and give

possession of the same, since he is only a licensee.

ii) The defendant got electrification to the thatched house illegally

without the consent of the plaintiff. The plaintiff got issued notices to

the electricity department, who promised to make an enquiry, but did

not do anything so far. The defendant appropriated the usufruct of

the year 1996-1997 also. The usufruct of the year 1997-1998 is to

be realized in the month of May, 1998. The defendant is high-

handedly claiming tenancy rights and he did not allow the plaintiff to

enter into the schedule land and also did not permit him to sell the

usufruct to others.

iii) Further, the defendant is committing acts of waste by cutting

Palmyrah leaves and selling away and appropriating the same for

himself and thereby causing loss to the plaintiff. He is also

damaging the trees by cutting the branches. The loss caused to the 4 VGKRJ AS 2012 of 2002

plaintiff due to the acts of the defendant for the year 1995-1996 is:

Rs.1,500/- towards the balance of usufruct payable, Rs.2,000/-

towards the value of Palmyrah leaves cut and taken, in total an

amount of Rs.3,500/-. For the year 1996-1997 the said loss is

Rs.5,000/- towards the value of mango usufruct and Rs.2,000/-

towards the Palmyrah leaves cut and sold totaling an amount of

Rs.7,000/-. In all the defendant is liable to pay an amount of

Rs.10,500/- with subsequent interest for the loss caused to the

plaintiff during the years 1995-1996 and 1996-1997. The defendant

is also liable to pay future profits and damages for use and

occupation.

iv) The defendant filed A.T.C.No.12 of 1998 on the file of Special

Officer describing himself as tenant and also obtained exparte

interim injunction in O.A.No.387 of 1998. The same is being

contested by the plaintiff. Hence the plaintiff filed this suit to evict

the defendant from the plaint schedule property and to put him in

possession of the same and also to recover an amount of

Rs.10,500/- from the defendant with subsequent interest.

5 VGKRJ AS 2012 of 2002

5. The defendant filed a written statement by denying all the

averments mentioned in the plaint and further contended as under: -

i) Previously, the defendant is an employee in Bhavani Castings

and in leisure time he used to cultivate land. Considering his interest

in cultivation, the plaintiff leased out the plaint schedule property to

him on an annual Maktha of Rs.1,000/-. Since then, the defendant

is in possession of the land and he used to cultivate dry crops and

vegetables in the schedule property besides enjoying the usufruct of

the trees in the schedule property from 1989. Neither

T.Veerabhadrarao nor any one is in possession of the land. The

defendant is a tenant and the relationship between him and the

plaintiff is tenant and landlord but not licensee and licensor. After

taking the property on lease, the defendant with the permission of

plaintiff constructed a house in about Ac.0.20 cents of land and

thereafter obtained a service connection and he is residing in the

same. The plaintiff enhanced the Maktha from Rs.1,000/- to

Rs.1,800/- and later in the year 1996 the Maktha was enhanced to

Rs.4,000/- and the plaintiff collected Rs.3,000/- as advance.

6 VGKRJ AS 2012 of 2002

ii) The tenancy of the defendant is governed by Andhra (Andhra

Area) Tenancy Act and therefore, the plaintiff suit is not

maintainable under law. When the plaintiff tried to interfere with

defendant's possession by taking the law into his hands, the

defendant filed A.T.C. No.12 of 1998 and prayed the Court to

dismiss the suit.

6. Based on the above pleadings, the trial Court framed the following issues:

(i) Whether the plaintiff is entitled for recovery of possession of plaint schedule property after evicting the defendant therefrom as prayed for?

(ii) Whether the plaintiff is entitled for recovery of Rs.10,500/- with subsequent interest towards the balance of usufruct of Palmyrah and mango trees?

(iii) Whether the defendant is a tenant of plaintiff in respect of plaint schedule property and whether the suit is not maintainable?

(iv) Whether this Court has no jurisdiction to entertain the suit?

      (v)      To What relief?
                                  7                              VGKRJ
                                                         AS 2012 of 2002

7. During the course of trial in the trial Court, on behalf of the

Plaintiff, PW1 and PW2 were examined and Ex.A1 to Ex.A9 were

marked. On behalf of the Defendant DW1 to DW3 were examined

and Ex.B1 was marked.

8. After completion of the trial and hearing the arguments of both

sides, the trial Court Decreed the Suit in-part vide its judgment,

dated 20.09.2002, against which the present appeal is preferred by

the appellant/Defendant in the Suit questioning the Decree and

Judgment passed by the trial Court.

9. Heard Sri S.Lakshmi Narayana Reddy, learned counsel for

appellant/defendant and Sri V.V.L.N.Sarma, learned counsel for

respondent/plaintiff.

10. The learned counsel for the appellant would contend that the

trial Court has not considered the relationship between the plaintiff

and the defendant. He would further contend that the relationship

between the plaintiff and defendant is landlord and tenant and

tenancy of the defendant is governed by the Tenancy Act and Civil

Court has no jurisdiction to decide this suit. He would further

contend that the trial Court failed to came to conclusion that there is 8 VGKRJ AS 2012 of 2002

no evidence to show that the defendant is a tenant and the trial

Court came to wrong conclusion and passed a decree and he would

further contend that the decree and judgment passed by the trial

Court is liable to be set aside and the appeal may be allowed.

11. Per contra, the learned counsel for the respondent/plaintiff

would contend that the defendant is not a tenant with regard to the

plaint schedule property and the trial Court, on appreciating oral and

documentary evidence, decreed the suit and the appeal may be

dismissed.

12. Having regard to the pleadings in the Suit and the findings

recorded by the trial Court and in the light of rival contentions and

submissions made on either side before this court, the following

points would arise for determination:

I. Whether the Trial Court is justified in holding that the plaintiff proved that the defendant is not a tenant with regard to the plaint schedule property and whether the trial Court is justified in evicting the defendant from the plaint schedule property?

9 VGKRJ AS 2012 of 2002

II. Whether the decree and judgment passed by the trial court needs any interference? If so, to what extent?

13. Point No.1:

It is the case of the plaintiff that he is absolute owner of the

plaint schedule property and he purchased the same under

registered sale deed under original of Ex.A3 and Ex.A4. He also

relied on pattadar passbook and title deed, those are exhibited as

Ex.A5 and Ex.A6. According to the defendant, the plaintiff is owner

of the plaint schedule property. The ownership of the plaintiff is not

at all disputed by the defendant. As per the case of the defendant,

the plaintiff is the owner of the plaint schedule property and he is

cultivating tenant in the plaint schedule property and the plaintiff

leased out the plaint schedule property to him. In order to prove his

case, the plaintiff relied on No.3 Adangal, issued by revenue

department, which is marked as Ex.A7, during the course of trial by

the plaintiff. The name of the plaintiff is shown as pattadar and so

also enjoydar. The name of the defendant is not noted in No.3

Adangal as enjoydar. Further-more, it is clear that there is no

documentary evidence to show that the defendant is a tenant.

10 VGKRJ AS 2012 of 2002

14. At the time of trial, the main contention was about jural

relationship between the parties to the suit Whether the defendant

has been a tenant or whether the defendant is a trespasser was the

question that primarily felt for consideration. By virtue of the

evidence available on record, the plaint schedule property is owned

by the plaintiff and the plaintiff himself never leased it out to the

defendant.

15. It is in the evidence of PW1 that he is the owner of the plaint

schedule property and one Veerabhadra Rao was watchman for

some time and he used to reside in the thatched house in the plaint

schedule property and he vacated the same in the beginning of

1991 and subsequently the defendant occupied the said thatched

hut and the defendant has been living in it with his family and the

defendant used to work as a watchman in the plaint schedule

property. From the beginning itself the plaintiff contended that one

Veerabhadra Rao was watchman for some time and he used to

reside in a thatched hut in the plaint schedule property and the said

Veerabhadra Rao is not residing in it, since he vacated the same, in

the beginning of the year 1991. It is in the evidence of PW1 that the 11 VGKRJ AS 2012 of 2002

defendant is a watchman and he is in a permissive possession. In

cross-examination when elicited, PW1 stated that in Ex.A3 and

Ex.A4 sale deed, the land described as a dry land. As per his own

admissions, no tax was levied by the panchayat to the thatched hut

and the defendant never raised vegetable crop. In cross-examination

nothing was elicited from PW1 to discredit the testimony of PW1.

16. It is in the evidence of PW2 that he is a watchman for the

garden in the year 1989 and 1990 in the plaint schedule property

and there was a thatched hut in that garden and at where he used to

reside in those two years and according to oral understanding

between himself and the plaintiff, he has to watch the garden and to

sell the usufruct and give Rs.1000/- to the plaintiff per year and

there is no possibility to raise vegetable crop in the garden or for the

cultivation of vegetables and besides mango trees, Palmyrah trees

and Cashew nut trees are also there in that garden. In the plaint

itself the plaintiff pleaded that the Veerabhadra Rao used to work as

a watchman in the plaint schedule property in the year 1989 and

1990 and in the beginning of 1991 he vacated the thatched hut in

the plaint schedule property. To substantiate his case, the plaintiff 12 VGKRJ AS 2012 of 2002

examined the said Veerabhadra Rao as a PW2. As stated supra,

PW2 totally supported the case of the plaintiff. PW2 asserted that

he is a watchman of plaint schedule property in the year 1989 and

1990 and there was a hut in the suit schedule property and he

resided in the said hut for two years as a watchman. In cross-

examination, nothing was elicited from PW2 to discredit the

testimony of PW2. The defendant is unable to show any reason or

circumstance to disbelieve the evidence of PW2. Though he was

subjected to cross examination, nothing was elicited to discredit the

testimony of PW2. It is not the case of the defendant that he is

having enmity with PW2 and so also with plaintiff. The evidence of

PW2 is a trustworthy and there is no enmity in between the

defendant and PW2.

17. As seen from the pleadings of the defendant in the written

statement, there is no whisper in the written statement that when he

was inducted as a tenant, but he stated in his evidence for first time

that he has taken the plaint schedule property on lease in the year

1989, but as per the evidence of PW2 he was the watchman to the

plaint schedule property in the years 1989 and 1990. In the plaint 13 VGKRJ AS 2012 of 2002

itself, the plaintiff asserted that the PW2 worked as a watchman for

about 2 years, in the year 1991 in the beginning he vacated the

same. In such a case, the defendant has to deny the same in his

written statement itself, but he failed to do so. In cross examination

it was not suggested to PW2 by the learned counsel for defendant

that the defendant was inducted as a tenant in the plaint schedule

property in the year 1989. As stated supra though PW2 was cross

examined by the other side counsel, no suggestion was given to

PW2 that he is not the watchman for the said plaint schedule

property in the years 1989 and 1990.

18. It is in the evidence of DW1 that the plaintiff asked him to

cultivate the land and so also to construct a hut and pay cist to him

and accordingly he has taken the land on lease and cultivating the

same and used to pay Rs.1,000/- as a cist per year, later the cist

was Rs.1,800/- per year, but it was enhanced to Rs.4,000/- per year.

Ex.A8 land revenue receipt filed by the plaintiff goes to show that

the plaintiff himself paid the land revenue for the plaint schedule

property. According to the defendant he is a tenant of the plaint

schedule property. In cross examination when elicited by the 14 VGKRJ AS 2012 of 2002

learned counsel for plaintiff, defendant admits that no lease paper

was obtained evidencing the lease and he further asserted that

there is no lease deed or cist receipt for his lease and payments.

19. DW2 is none other than the wife of the defendant. She is not

a third party. In cross examination when elicited she admits that

they used to sell the usufruct on the Mango garden and pay the cist.

DW3 is another witness to the defendant. As per the own

admissions of DW3 that one land is intervened between his land

and plaintiff's land. As per the evidence of DW3 his land is a Sapota

garden and raising vegetable crops and not raising any paddy crops.

In such a case, it is quite unbelievable that the defendant is

cultivating the land by raising a crop. Moreover, admittedly, there is

no written document to show that the defendant is a tenant.

Admittedly, there is no documentary evidence to the effect that the

plaint schedule property was given on lease to the defendant. The

defendant failed to produce any documentary evidence to the effect

that he paid amounts to the plaintiff with regard to the Maktha

payable by him. The material on record reveals that after PW2

vacated the hut in the plaint schedule property, the defendant 15 VGKRJ AS 2012 of 2002

inducted as a watch-man in the plaint schedule property. Further

more Ex.A9 is a crucial document. Ex.A9 is the copy of application

given by the defendant to the Gram Panchayat, Challangi, to give

permission to obtain electricity connection to the said house. In

Ex.A9, the defendant himself stated that they are living in the house

which is situated in that garden for watching the garden. Ex.A9

clearly goes to show that the defendant entered into the garden in

the plaint schedule property as a watchman for watching the mango

garden of the plaintiff. Further more Ex.B1 goes to show that the

amount in Ex.B1 was paid with regard to the usufructs of Mango

fruits and Ex.B1 is given by the plaintiff. With reference to the

contentions of the defendant about the alleged tenancy, it is

observed that there is no lease deed and there is no proof of

payment of rent. As stated supra, no single document is filed by the

defendant or no cogent evidence is adduced by the defendant to

show that he is the cultivating tenant in the plaint schedule property.

20. The learned counsel for the appellant relied on a decision in

Weney D Souze V. G.A.Conceicao 1. The facts in the aforesaid

1991 Law Suit (SC) 210 16 VGKRJ AS 2012 of 2002

case is defendant entered into the possession of the suit land under

a written document and the schedule property was given for 10

years lease and the defendant has to pay Rs.240/- annually. In the

case on hand, there is no documentary evidence to show that the

defendant is a tenant. Absolutely there is no material on record in

the instant case to show that the defendant was inducted as a

tenant in the plaint schedule property.

21. The learned counsel for appellant placed another reliance in

Jaddu Veeraswami V. Sub-Collector, Narasapur2. The facts in

the aforesaid case is, writ petition is filed by the petitioner under

Article 226 of Constitution of India. The facts and circumstances in

that case are different to the instant case. As stated supra, there is

no documentary proof in the case on hand to show that the

defendant was inducted as a tenant in the plaint schedule property.

22. The learned counsel for appellant placed another reliance in

Kotu Pichayya V. Kandalla Satyanarayana Charyulu3. The facts

in the aforesaid case is there is no dispute about the jural

1975 AIR (AP) 158

1968 AIR AP 311 17 VGKRJ AS 2012 of 2002

relationship in between the parties to the suit. It was held by this

Court in the aforesaid case that "admittedly the plaintiff is a landlord

and the defendant is a cultivating tenant and dispute is with regard

to the extent of property". Therefore, the facts and circumstances in

the cited decision are different to the instant case.

23. The learned counsel for appellant would submit that the Civil

Court has no jurisdiction to decide the suit. As stated supra, the

appellant/defendant failed to prove the relationship of landlord and

tenant. Admittedly, no evidence is placed by the defendant to show

that he was inducted as a tenant in the plaint schedule property. On

the other hand, the plaintiff failed to produce oral evidence and so

also documentary evidence and the possession of the defendant is

only a permissive possession and the defendant is not a tenant.

Since the defendant was not found to be a tenant, therefore, the

jurisdiction is vested with the Civil Court. As stated supra, the

defendant failed to produce any evidence to show that they are in

the habit of raising paddy crops in a part of the plaint schedule

property. No piece of paper is filed by the defendant or no cogent

evidence is produced by the defendant to show that he is a 18 VGKRJ AS 2012 of 2002

cultivating tenant in the plaint schedule property. More so, Ex.B1

goes to show that the defendant paid Rs.700/- towards usufruct

from out of Rs.1,000/-, further more Ex.A9 which was addressed by

the defendant to the Gram Panchayat shows that he entered into

the plaint schedule property as a watchman for watching the Mango

garden of the plaintiff.

24. For the foregoing reasons, it is undoubtedly clear that the

defendant is not a tenant with regard to the plaint schedule property

and the plaintiff is entitled to recover the possession after evicting

the defendant from the plaint schedule property. Therefore, the trial

Court is justified in evicting the defendant from the plaint schedule

property and the plaintiff is also entitled the amount awarded by the

trial Court. Accordingly, the point No.1 is answered.

25. Point No.2: In view of my findings in point No.1, I do not find

any illegality in the decree and judgment passed by the trial Court

and the decree and judgment passed by the trail Court is perfectly

sustainable under law and it requires no interference.

19 VGKRJ AS 2012 of 2002

26. In the result, the Appeal Suit is dismissed confirming the

decree and Judgment dated 20.09.2002, in O.S. No.68 of 1998

passed by the learned I Additional Senior Civil Judge, Kakinada.

Two months time is granted to the appellant/defendant to deliver the

vacant possession of the plaint schedule property to the respondent/

plaintiff. No order as to costs.

As a sequel, miscellaneous petitions, if any, pending in the

Appeal shall stand closed.

_________________________ V.GOPALA KRISHNA RAO, J Date: 01.12.2023 sj 20 VGKRJ AS 2012 of 2002

THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

APPEAL SUIT No. 2012 OF 2002

Date: 01.12.2023

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