C O M M O N J U D G M E N T

These two Civil Revision Petitions are filed under Article 227 of the Constitution of India being aggrieved by the common Judgment dated 8-3-2004 in C.M.A.Nos.17 and 18 of 1999 on the file of the learned III Additional District judge, Nellore confirming the common Order dated 15-4-1999 made in A.T.C.Nos.1 of 1993 and 17 of 1996 on the file of the learned Special Officer-cum-Principal Junior Civil Judge, Nellore.

C.R.P.No.2689 of 2004

2. A.T.C.No.17 of 1996 out of which this Civil Revision Petition arises, is filed by the respondent herein (landlord) under Section 13 of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (for short ‘the Act’) seeking eviction of the petitioner-cultivating tenant from the suit schedule property on the ground that he failed to pay agreed maktha by due date. Whereas, A.T.C.No.1 of 1993 is filed by the respondent herein under Section 6 of the Act for fixation of fair rent for the petition schedule property. Both these petitions were clubbed together and common evidence was recorded. On behalf of the landlord, P.Ws.1 to 3 were examined and Exs.A1 to A6 were marked and for the tenant, R.Ws.1 to 5 were examined and Exs.B1 to B10 were marked. After elaborate consideration of the entire evidence on record, the Special Officer held that it is not the case of the tenant (petitioner herein) that he sent makthas to Krishnamma by Money Order and they were returned; as such, his version that he is unable to pay makthas as he did not know the name of the landlord was not correct. When A.T.C.No.1 of 1993 was pending, nothing prevented the tenant to deposit the makthas in Court instead of searching for the address of the landlord. In the year 1991, Krishnamma died and subsequently the ATCs were filed. For non- payment of maktha, R.W.1 stated in his cross-examination that thinking that patta may be granted in his favour due to coming into force of the Tenancy Act, he kept quiet without paying makthas. He applied to the Government for grant of patta, but it was not granted to him so far and he was under the hope that patta may be granted in his favour. Thus, it is clear that non-payment of makthas is only for the obvious reason that he may get patta for the land in question. R.W.2 is the son of the tenant and he stated in his evidence that after the death of Krishnamma, he did not pay maktha, as he did not know to whom he has to pay the same. Nothing prevented him to deposit makthas in A.T.C.No.17 of 1996 or in A.T.C.No.1 of 1993. The tenant was quite aware of the constitution of Trust Board and the Managing Trustee frequently contacted the-tenant for enhancement of maktha and for payment of maktha. Thus, it was held that there was a wilful default on the part of the petitioner-tenant in payment of maktha and as such, he is liable to be evicted and allowed A.T.C.No.17 of 1996. Consequently, A.T.C.No.1 of 1993 was also allowed fixing the fair rent for the petition schedule property at Rs.12,090/- i.e. at the rate of Rs.3,000/- per acre for Ac.4.03 cts with effect from 16-12-1992 i.e. date of filing of A.T.C. This finding of the Special Officer was confirmed in unequivocal terms by the learned III Additional District Judge, Nellore in C.M.A.No-18 of 1999. Aggrieved by the same, the present revision is filed.

3. Insofar as the willful default on the part of the petitioner-tenant in payment of maktha and as to fixing of fair rent, there is a concurrent finding of fact and no illegality has been brought to the notice of this Court to interfere with the said concurrent finding of fact.

4. However, the learned counsel for the petitioner raised an important question of law for consideration of this Court, which was not raised either before the Special Officer or before the appellate authority. According to the learned counsel, there is inherent lack of jurisdiction in the Special Officer in entertaining ATCs and even if the parties have not

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