Ramisetty Naraiah Vs.
Poluri Venkata Subbamma & Ors. [2008] INSC 1410 (22 August 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 5193-5195 OF 2008
(Arising out of S.L.P. (C) Nos. 24733-24735 of 2005) Ramisetty Naraiah
.....Appellant Versus Poluri Venkata Subbamma & Ors. ....Respondents
Dr. ARIJIT PASAYAT
1.
Leave
granted.
2.
Challenge
in this appeal is to the order passed by a learned Single Judge of the Andhra
Pradesh High Court allowing the Civil Revision Petitions Nos. 5692 and 5695 of
1998 filed by the respondent while dismissing the CMP No. 6683 of 2005 filed by
the appellant.
3.
Background
facts as projected by the appellant are as follows:
In April, 1975 the
appellant herein had taken the petition schedule lands which are to an extent
of Acres 5-36 cents of agricultural land situated at Pernamatta village,
Santhalapadu, Patta No.2182- Survey No.158/2, Ongole District with the
following boundaries - East : Government Donka, South: Land of Inabathana
Ramaiah, West : Land of Gajula Kotaiah, North: Land of Adapal Jogaiah and
Venkatarao. Since the time he had taken on lease the above mentioned lands, he
has been regular in payment of Maktha which is a lump sum amount of Rs.1200/-
towards rent per year to the schedule lands.
In 1979 as the
appellant came to know that the husband of 2nd respondent herein i.e Mannam
Sundarannaiah and one Adapa Venkatarao were contending that they had purchased
the schedule lands from G. Seetharamamma who is the wife of the original Landlord
and from whose brother the appellant had taken the schedule lands on lease
after his death. As the respondents were contending that they will evict,
appellant filed suit O.S No. 791/1979 on the file of District Munsif against
1st to 3rd respondents herein seeking permanent injunction against them and
also filed an I.A. No. 3963 of 1979 seeking temporary injunction.
In the suit for the
first time it came to the knowledge of the appellant herein that the 3rd
respondent herein, to discharge the debts had agreed to sell the schedule lands
to the husbands of the Ist and 2nd respondents herein by way of agreements of
sale dated 10.9.1979. Possession continued to remain with the appellant herein
and he was cultivating the petition schedule lands.
0n 13.11.1979 the
temporary injunction which was granted in favour of the appellant was allowed
and the temporary injunction was made absolute, against which an Appeal C.M.A.
No. 111/1979 was filed by the 1 to 3 respondent herein in the court of District
Court Munsif, Ongole.
On 01.07.1980 Section
15 was incorporated in the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (in
short the `Act').
On 11.12.1980 the
appeal C.M.A. No.111/ 1979 which was filed by the respondents herein
challenging the injunction order dated 13.11.1979 was also dismissed.
On 17.01.1981, the
3rd respondent herein contrary to Section 15 of the Act, sold the Southern half
of the schedule lands to the Ist respondent herein and Northern half of the
schedule lands to the 2nd respondent herein by executing registered sale deeds.
But still the appellant was in possession of the lands and he was cultivating
the same.
On 17.11.1981 the
appellant filed A.T.C. (Andhra Tenancy Case) which was numbered in the year
1982 and the number of the case was A.T.C. No.2 of 1982 on the file of the
Court of District Munsif, Ongole (Special Officer Constituted under Andhra
Tenancy Act) and in the A.T.C. he contended that the sales are contrary to
Section 15 of the Act and as such they are void and sought declaration from the
court (a) that he is entitled to first purchase the schedule lands, (b) that
the sale deeds executed on 17.01.1981 are void (c) that respondents should
execute proper sale deeds in favour of the appellant and convey the schedule
lands to him.
In ATC 2/1992 the
respondents herein filed their counter wherein they contended that the
appellant defaulted in payment of rents and they also stated that the schedule
property was sold to the respondents 1 and 2 by way of registered sale deeds
dt. 17.01.1981.
On 21.09.1984, the
respondents herein filed A.T.C. No. 44 of 1984 under Section 13(a) of Act and
sought for eviction of the appellant and delivery of possession of the schedule
lands contending that the appellant defaulted in payment of rents from 1978 to
1984. In this petition it was also contended that on 5.5.1979 the appellant had
written a letter and re-delivered possession of the schedule lands to the 3rd
respondent's father and subsequently after the death of the 3rd respondent's
late father, the 3rd respondent herein leased out the schedule lands to one A
Vankata Rao on 15.06.1979 for a period of one year.
In the year 1984 the
appellant herein filed statement in A.T.C. No.44/1984 denying the contentions
pleaded by the respondents and he also contended that the surrender document
alleged to have been executed by the appellant herein is a false and forged one
and that it is a concocted document and that as a counter blast to the suit
O.S. 791/1979 as well as A.T.C. 2 of 1982, the respondents herein filed the
present A.T.C. 44/1984 and he also contended that as per the Court's order he
had deposited the rents in the Court. In the counter he also contended that the
sale of schedule lands are bad in the eye of law as he was not offered first
option to purchase the same.
On 07.11.1988, the
learned Additional District Munsif, Ongole dismissed O.S.No.791/1979 holding
that the Court had no jurisdiction as the dispute in the suit relates to a
dispute between a tenant and a landlord and that it can be decided only by the
Special Officer under the provisions of Act.
Both the A.T.Cs were
clubbed together and common evidence was recorded and on behalf of the
appellant herein two witnesses were examined and on behalf of the respondents
herein two witnesses were examined and exhibits Al to A30 were marked and no
exhibit and/or any document was marked by the respondents herein.
On 15.05.1992 the
Court of the Special Officer for Tenancy Cases, Ongole (Principal District
Munsif, Ongole) dismissed A.T.C No.2/1982 filed by the appellant herein and
allowed A.T.C. No.441/1984 filed by the respondents herein taking the view that
as the alleged agreements of sales are prior to the enactment of Section 15 of
Act and as registered sale deeds are executed subsequent to the enactment of
Section 15 of the Act the same are not hit by Section 15 of Act.
The Trial Court also
held that the appellant also committed default in payment of rents. The Court
however held that there is no proof that the appellant surrendered the lands by
way of a delivery receipt on 05.05.1979 and no such delivery receipt was filed.
In the year 1992 the
appellant herein aggrieved by the orders passed in A.T.C. No. 2/1982 and A.T.C.
No. 44/1984 filed A.T.A. No. 8 of 1992 and cross objections were filed by the respondents
1 and 2 herein against the orders passed in A.T.C. No. 44/1984 and the
appellant herein filed A.T.A. No.9/ 1992 and cross objections were filed by the
respondents 1 and 2 herein against the orders passed in A.T.C. No.2/1982 On
19.04.1997, the Court of District Judge, Ongole on appreciation of facts,
evidence and law allowed both the appeals i.e A.T.A. Nos. 8 and 9 of 1992 filed
by the appellant herein and dismissed both the cross objections field by the
respondents herein. In its order the appellate Court has specifically held that
there is only recital in the sale deeds about the agreement of sale. The
agreements are not filed. The recital about the sale agreement is made in the
sale deeds only to avoid the benefit of Section 15 of the amended Act to the
tenant. Admittedly, Exhibits A2 and A3 sale deeds were executed after the
amendment Act came into force. Even if there is an agreement of sale by the
time of 01.07.1980 in favour of the husbands of vendees, the landlord should
have issued notice as contemplated U/S. 15 (1) of the Act as the sale had not
been completed. Section 15(6) of the Tenancy Act refers to only sale, but not
agreement of sale. Though sale can be made under a registered document, consent
was not obtained prior to the amended Act and also no suit for specific
performance was filed and that it is not known why the purchases under the
agreement of sale on 10.9.1979 kept quite for about one year and four months in
obtaining the sale deeds in the name of their nominees. The circumstances under
which the agreements of the sale were executed and obtained sale deeds in the
name of the wives of the agreement holders and filing of A.T.C. 44/1984 by one
of the landlords and vendees give rise to suspicion that only to evict the
tenant from the land, the landlord set up to plea that the land was leased out
to another person A. Venkata Rao and the land was agreed to be sold to the
husbands of vendees and executed agreements of sale. The collusion can also be
seen in filing of A.T.C. 44 of 1984. All the vendors did not join in A.T.C. 44
of 1984. Only R.1 and vendees joined in A.T.C. 44 /1984 for evicting the
tenant. There is no need for R.1 to join as a party in A.T.C. 44 / 1984 to
evict the tenant as by then the title was conveyed to the vendees and R1 had no
interest in the land.
Only to protect his
right to evict the tenant in case the sale deeds are found to be void, he
joined in A.T.C. 44/1984. As the amended Act provided an option for the tenant
to purchase the land the landlord had to first give notice to the tenant in
case he wants to sell the lands. To avoid such notice, sale deed were obtained
in the names of the wives in pursuance of the agreements of the sales. Even
though there was an agreement of sale prior to amended Act, the agreement of
sale is not enforceable as it contravenes the provisions of section 15 of the
amended tenancy Act and Section 17 of the Act reads "The provision of this
Act shall have effect notwithstanding anything inconsistent therewith contained
in any pre-existing law; custom, usage, agreement or decree or order of
Court." The appellate Court has also negatived the contentions of the
respondents that the appellant has committed default in payment of rents. So
holding, appellate Court allowed both the A.T.A. Nos. 8 and 9 of 1992 and
dismissed the cross objections in both the appeals.
11 In 1997 after the
A.T.A.s were allowed, the appellant herein filed O.S. No.619 of 1997 in the
Court of Principal Junior Civil Judge Ongole, against respondents 1 to 12 in
A.T.C. 21 1982 and sought a direction to be given to the respondents 1 to 12
therein to execute a registered sale deed in favour of him for the schedule
property.
In 1998, aggrieved by
the orders passed in both A.T.A. 8 and 9 of 1992 only the respondents 1 to 3
filed C.R.P. Nos. 5692 and 5695 of 1998 under Article 227 of the Constitution
of India, 1950 in the High Court of Judicature of Andhra Pradesh.
On 20.10.2000, the
Court of Principal Junior Civil Judge, Ongole by its judgment allowed O.S.
No.619 of 1997 directing the defendants therein to execute a sale deed in
favour of the plaintiff (appellant herein) for the schedule lands.
12 On 22.09.2005,
the respondents 1 and 2 filed C.M.P. No.6683/2005 in C.R.P. No.5695 of 1998 and
sought to implead respondents 2 to 12 in A.T.C. No.2/1982 who are legal heirs
of original landlords as respondents 5 to 15 in C.R.P. No.5695 /1998.
On 3.09.2005 the High
Court of Judicature of Andhra Pradesh by a common judgment allowed both the C.R.Ps.
i.e. 5692 and 5695 of 1998 and dismissed C.M.P. No. 6683 of 2005 filed by the
appellant.
According to the
appellant the alleged agreement for sale was in favour of the husbands of R1
and R2. There was nothing indicated in the said agreements that there can be
execution in favour of any other person or nominee. The stand taken was that
the property was leased out to somebody else and not to appellant. It is his
case that Section 15 of the Act makes the position absolutely clear that when
there is an intention to sell the land leased to a cultivating tenant, such
tenant shall be first given notice of the intention to sell such land and
requiring him to exercise his option to purchase the land. Only in case the
cultivating tenant does not exercise his option, it can be offered to somebody
else. The High Court has erroneously come to the conclusion that since the
alleged agreement for sale was executed prior to introduction of the provision,
the provision has no applicability.
According to learned
counsel there was no discussion even of the ingredients of the provision and in
any event of sub section (6) of Section 15 and Section 17 of the Act. It is
pointed out that R-3 had filed an application to the effect that he does not
want to press the petition before the High Court.
On that basis, his
name was deleted from the array of parties and he was added as respondent No.4.
The question of default therefore becomes redundant as the District Court has
dismissed the eviction petition which was filed on the ground of default. The
effect of the prayer made by the respondent No. 3, who was a petitioner in the
Civil Revision Petition, was also not considered by the High Court.
4.
It
is the stand of learned counsel for the appellant that the object of Section 15
is to protect the interest of the cultivating tenant. Therefore, in case the
landlord intends to sell the land, he has to first give option to the
cultivating tenant. Even if there was an agreement earlier to the introduction
of the provision, that is really of no consequence as otherwise the provisions
of Section 17 would become redundant. It is, therefore, submitted that though
the provision according to the High Court came into force with effect from
1.7.1980 and the agreements were purportedly entered into on 10.9.1979, the
sale deed was executed on 17.1.1981. The High Court, it is submitted, has not
also considered the question whether the sale deeds could have been executed in
favour of the respondents 1 & 2 when admittedly the purported agreement for
sale was entered into with their respective husbands.
5.
In
reply learned counsel for the respondents submitted that High Court's judgment
is in order because what is stated in Section 11 of the Act. According to him,
even if there is a change in ownership of the land the cultivating tenant
continues the tenancy on the same terms as before. It is pointed out that
Section 15 shall came into operation only when there is an intention to sell
the land. That intention in the present case was already expressed and agreement
for sale was executed prior to introduction of the provision in question.
6.
We
find that the trial court has not considered the effect of the sub-section (6)
of Section 15 and Section 17. The relevant provisions read as follows:
"Section 15.
Cultivating tenants' right to-first purchase the land leased to him: (1) Any
landlord intending to sell the land leased to a cultivating tenant shall first
give notice to such cultivating tenant; of his intention to sell such land, and
requiring him to exercise his option to purchase the land. The particulars to
be specified in the notice and the time within which the option shall be
exercised by cultivating tenant shall be such as may be prescribed.
(2) to (5)
..............................................
16 (6) Any sale of
the land by the landlord in cultivation of this Section shall be voidable to
the option of the cultivating tenant."
"17. Act to
override contract and other laws:- The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any pre-existing
law custom, usage, agreement or decree or order of a Court."
7. Section 17 has
overriding effect. As a bare reading of the provision makes it clear, it
inter-alia provides that notwithstanding anything inconsistent contained in any
pre existing law, custom, usage, agreement or decree or order of the court, the
provisions of the Act shall have effect.
Similarly,
sub-section (6) of Section 15 provides that any sale of the land by the
landlord in contravention of Section 15 shall be voidable to the option of the
cultivating tenant. The High Court has come to an abrupt conclusion that since
the agreement to sell was purportedly executed prior to the introduction of the
provision, they have no relevance. There is no discussion as to the effect of
the provisions, and the specific reference to agreements. Additionally, the
High Court has not dealt with the aspect as to whether it could have gone into
the question of default when respondent No. 3 who was shown as the petitioner
in the Civil Revision Petition did not want to pursue the petition.
8. In the aforesaid
background we deem it proper to remit the matter to the High Court to hear and
dispose of the Civil Revision Petitions afresh and deal with the aspects highlighted
above. We make it clear that we have not expressed any opinion on the merits.
Since the matter is pending since long, we request the High Court to dispose of
the petitions as early as practicable preferably by the end of February, 2009.
9. The appeals are
accordingly disposed of. No costs.
.........................................J.
(Dr. ARIJIT PASAYAT)
.........................................J
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