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2015 Supreme(AP) 236
In the High Court of Judicature at Hyderabad
C.V. NAGARJUNA REDDY, JJ.
Badde Ganiraju - Petitioner
Versus
Polisetti Andala Tayaru & Others - Respondents
Appeal Suit No. 1085 of 1994
Decided On : 01-05-2015
For the Appellant:C. Raghu, Advocate.
For the Respondents:N.V. Suryanarayana Murthy, Senior Counsel for Subrahmanyam Kurella, Advocate.
Headnote:
Tenancy and Land Laws – Andhra Pradesh (Andhra Area) Tenancy Act, 1956 – Section 13 – Transfer of Property Act, 1882 – Section 53 – Land on Lease – Suit for delivery of possession – Pay the profits – Appeal against judgment and decree dated husband of respondent No.1 and father of respondent filed the above-mentioned suit for delivery of possession of the plaint schedule property for recovery of a sum of towards past profits with subsequent interest from the date of plaint till the date of payment, for future profits at the rate to be determined by the Court from the date of suit till the date of delivery of possession, to appoint a receiver to manage the plaint schedule property during the pendency of the suit and for costs plaintiff has pleaded that the defendant has taken the suit land on lease; that for Acs.4-00 cents out of the plaint schedule land payable was 12 bags per acre for and 10 bags per acre and for the remaining Acs.2-00 cents payable was 15 bags per acre for and 10 bags per acre for is payable by 15th of January every year and is payable by every land was taken on lease by the defendant in the year 1979; that having entered into possession of the plaint schedule land as a lessee, the defendant has not been paying in spite of demands made by the plaintiff, and was appropriating the entire produce by himself; that the plaintiff has caused registered notice, dated issued on the defendant demanding payment of and that having received the same, the defendant has issued registered notice, dated with false and frivolous contentions – Held, It is relevant to note the conduct of the appellant in this context. He has set up an alleged oral agreement of sale said to have taken place as far back has not taken any steps by calling upon the plaintiff during his life time or the respondents herein who are his legal heirs thereafter calling upon them to execute the sale deed or filed a specific performance suit for nearly six years after the so-called oral agreement of sale. At least after the present suit was filed against him, the appellant has failed to file the specific performance suit. The agreement set up by the appellant being oral, he cannot even claim the benefit of the doctrine of part performance under Section 53-A of the Transfer of Property Act 1882 as held by the Supreme Court in and others appellant has not even set up the plea of adverse possession. On the one hand he is denying tenancy and on the other hand he has failed to prove the plea of oral agreement of sale Finding rendered on this aspect by the trial court has not even been contested in his appeal as no submissions in this regard are made by the learned Counsel for the appellant – On these indisputable facts, continued possession of the appellant is irrespective of which ever forum decides the case. In fact, the appellant is only seeking to prolong the litigation by non-suiting the respondents on the plea of lack of jurisdiction in the civil court. If his plea is accepted and the respondents are relegated to the Tenancy Court, consistent with his stand taken in the suit, the appellant will plead absence of tenancy and that consequently the Tenancy Court has no jurisdiction to order his eviction in the absence of landlord-tenant relationship – Appeal dismissed.
This Appeal arises out of the judgment and decree, dated 03-05-1994, in OS.No.87 of 1985 on the file of the Court of the learned Subordinate Judge, Narsapur.
For convenience, the parties shall be hereinafter referred to as arrayed in the suit.
Originally, one Polisetti Satyanarayana Rao, who is the husband of respondent No.1 and father of respondent Nos.2 to 4, filed the above-mentioned suit for delivery of possession of the plaint schedule property comprising Acs.6-00 of land in RS.Nos.68 and 70 of Veeravasaram Village, Podur Taluk, West Godavari District, for recovery of a sum of Rs.50,119-20 ps., towards past profits with subsequent interest from the date of plaint till the date of payment, for future profits at the rate to be determined by the Court from the date of suit till the date of delivery of possession, to appoint a receiver to manage the plaint schedule property during the pendency of the suit and for costs.
The plaintiff has pleaded that the defendant has taken the suit land on lease; that for Acs.4-00 cents out of the plaint schedule land the maktha (rent) payable was 12 bags per acre for sarva and 10 bags per acre for Dalwa and for the remaining Acs.2-00 cents, the maktha payable was 15 bags per acre for Sarva and 10 bags per acre for Dalwa. The Sarva maktha is payable by 15th of January every year and the Dalwa maktha is payable by 15th of May every year; that the said land was taken on lease by the defendant in the year 1979; that having entered into possession of the plaint schedule land as a lessee, the defendant has not been paying the maktha in spite of demands made by the plaintiff, and was appropriating the entire produce by himself; that the plaintiff has caused registered notice, dated 26-06-1984 issued on the defendant demanding payment of maktha and that having received the same, the defendant has issued registered notice, dated 11-07-1984, with false and frivolous contentions. In the said reply, the defendant has denied the tenancy and alleged that the plaintiff has entered into an agreement of sale with him in respect of the plaint schedule property at Rs.14,000/- per acre before Polisetti Vasudeva Rao and Polisetti Veera Raghava Rao, who happened to be the brothers of the plaintiff and one Mutyala Ranganayakulu, father-in-law of Polisetti Vasudeva Rao; and that under the said agreement of sale, the defendant has paid a sum of Rs.79,000/- to the said Polisetti Vasudeva Rao towards the sale consideration in installments and obtained his signatures in his account book. The defendant has also called upon the respondent to receive the balance amount and execute the sale deed in his favour. On receipt of the said reply, the plaintiff has got another registered legal notice issued to the defendant on 26-10-1985 by way of a rejoinder, in which the defendant was called upon to hand over possession of the plaint schedule property and pay the profits.
The plaintiff has further averred that the defendant has denied the tenancy and set up the plea of agreement of sale and in pursuance thereof, his right to continue in possession on the alleged agreement of sale and that therefore, the suit being the one filed for recovery of possession of the plaint schedule property with past and future profits, the plaintiff is entitled to interest on the arrears of maktha from the respective due dates at 12% p.a.
The defendant filed a written statement, wherein he has averred that as per the allegations made in the plaint, he is a tenant, which is not admitted by him, and as such, the plaintiff has to avail the remedy before the Tribunal constituted under the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (for short "the Act"). The defendant further averred that he was never the tenant of the plaintiff; that the suit land was situated in triounial zone; that therefore, Dalwa can be raised only once in three years; and that he has not entered into possession of the suit land as a lessee but as a vendee and theref
