A tenant cannot approbate and reprobate. If a tenant successfully urges before a Tahsildar 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 he is a tenant as contemplated by the Andhra Tenancy Act.

K. MADHAVA REDDY, J.

( 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 r

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