THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No.1223 of 2010 Date of Order: 25-06-2010 Between: 1.Chintha Seetharamam and others ..Petitioners and SamgamoGamgadjar ..Respondent The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No.1223 of 2010 Oral order: This revision under Article 227 of the Constitution by the petitioners is directed against the order of the III Additional District Judge, Kakinada dated 08-02-2010, dismissing A.T.A. No.13 of 2009 filed by the petitioners confirming the orders of the Special Officer-cum- Principal Junior Civil Judge, Kakinada dated 10-11-2009 in I.A.No.64 of 2000 in ATC.No.8 of 2009, allowing the petition and granting temporary injunction against the petitioners. The respondent/tenant filed the above ATC stating that he is the cultivating tenant of petition schedule property measuring Ac.17.56 cts. situated in Vemulavada Village, Kapra Mandal in different survey numbers having taken lease of the petition schedule property on lease from Chinta Venkata Sastry, husband of the 1st petitioner and father of petitioners 2 to 5 on 01-05-2007 under an oral lease, on payment of Maktha of 175 bags of paddy for the first crop payable on 15th of January of every year and 87½ kata bags of paddy for the second crop by the end of May every year. The respondent/tenant paid Maktha for the first crop of the year 2007-2008 on 25-12-2007; second crop on 30-05-2008 and the fist crop Maktha of the year 2008-2009 on 20-01-2009 under Exs.P1 to P3 and when he went to the house of the Chinta Venkata Sastry for payment of Maktha for the second crop of the year 2008-2009 on 20-04-2009, he came to know that Chinta Venkata Sastry, owner of the land, died 25 days back leaving behind the petitioners as legal heirs. When the petitioners informed the respondent/tenant that they want to sell away the petition schedule property and requested to vacate and handover the lease hold land to them, the tenant expressed his willingness to purchase the property or in the alternative he is ready to attorn in favour of the proposed purchaser. The petitioners instead of agreeing for the same making hectic efforts to dispossess the tenant from the petition schedule property. At that time the tenant moved the Special Officer-cum-Principal Junior Civil Judge, Kakinada and filed the above ATC seeking declaration of tenancy rights and consequential injunction. Pending ATC respondent/tenant also filed I.A.No.64 of 2009 seeking temporary injunction. Petitioners traversing the contentions of the respondent/tenant filed counter affidavit stating that late Chinta Venkata Sastry never leased out the property to the respondent/tenant at any point of time and he was never in possession of the petition schedule property. Originally the petition schedule properties are joint family properties of respondents 2 to 3 and late Chinta Venkata Sastry and in the oral partition among them each sharer got six acres. Late Chinta Venkata Sastry taking advantage of property under his management, executed two possessory sale agreements cum GPA on 26-05-2007 and 05-06-2007 in favour of MNR group. Further, petitioners 2 and 3 filed a suit—O.S.No.78 of 2007 on the file of III Additional District and Sessions Judge, Kakinada seeking declaration of title of their respective shares and the respondent/tenant is a henchman of MNR group. There is no relationship of landlord and tenant between Chinta Venkata Sastry and the respondent/tenant and they never saw the tenant at any point of time and there is no cause of action for filing the petition and prays for dismissal. In support of the respective pleas, the respondent/tenant filed Exs.P1 to P4. On behalf of the petitioners Exs.R1 to R7 were marked. The learned Special Officer-cum-Principal Junior Civil Judge, Kakinada was of the view, prima facie Exs.P1 to P3 establish payment of Maktha to Chinta Venkata Sastry and accordingly granted injunction. On appeal by the petitioners herein, the III Additional District Judge, Kakinada has confirmed the same through the impugned order. Hence the present revision. Sri Vedula Venkata Ramana, learned senior counsel appearing for the petitioners contended that when there is dispute with regard to jural relationship of landlord and tenant, the Special Officer has no jurisdiction to decide the existence of relationship. Therefore, granting injunction in favour of the tenant does not arise. In support of his contention strong reliance is placed on the Full Bench Judgment of this court in D.VENKATA REDDY v. B.BHUSHIREDDY[1] and GOLLAVALLI RAMAKRISHNA MURTHY v. MURAMALLA AMMANNA RAJU[2]. On the other hand, Sri D.Prakash Reddy, learned senior counsel appearing for the respondent/tenant by placing reliance on the very same Full Bench judgment contended that expression ‘including’ used in Section 16 of Andhra Pradesh (Andhra Area) Tenancy Act (Act 18 of 1956) is with regard to relationship, it can be decided by the tenancy tribunal and it is open for the parties to challenge the said finding in a civil court. When the tenant prima facie established payment of Maktha under Exs.P1 to P3 and also offered to pay future Maktha, the same can be decided in the main ATC. As the injunction is in favour of respondent/tenant since from inception of ATC and he was also permitted to be in continuous possession to cultivate the land as per the interim orders passed by this Court on 30-04-2010 and he has already cultivated the land and agreed to pay the Maktha payable to the landlord, the same do not require any interference. A Full Bench of this in D.VENKATA REDDY v. B.BHUSHIREDDY (1 supra) held the word ‘including’ in Sec. 16 (1) of the Act does not seem to have been used in order to enlarge the meaning of the words or phrases occurring in the first limb of that section which clearly provides for any dispute arising under the Act which would, according to its nature and import, also take in question relating to the determination of fair rent or the eviction of a cultivating tenant which have been included in the definition, for the questions relating to the determination of fair rent or eviction of a cultivating tenants are essentially disputes arising under the Act and not outside the Act so as to make their specific mention as enlarging the scope of Section 16 (1) of the Act. That being so, the word ‘including’ in Section 16 (1) does not enlarge the expression "any disputes arising under the Act". But, the expression in question relating to the determination of fair rent or eviction of a cultivating tenant is only illustrative. After referring to the judgment of Ramanaiah v Avula Bujji Reddy, ((1962) 1 Andh.W.R. 416) it was held the dispute regarding the relationship of landlord and tenant is included within Section 16 (1) of the Act so as to give exclusive jurisdiction to the Tahsildar. Even if the dispute which the Tahsildar has jurisdiction to decide under Section 16 (1) of the Act is a dispute arising under the Act it must be between a landlord and a cultivating tenant. The Tahsildar has no jurisdiction to decide a dispute, which is not between a landlord and cultivating tenant. Similarly, the Tahsildar has been given the jurisdiction to decide questions relating to the determination for the fair rent or the eviction of the cultivating tenant only if such questions arise between a landlord and cultivating tenant. A reading of this section clearly shows that the necessary condition for the exercise of the jurisdiction by the Tahsildar under Section 16 (1) of the Act is the existence of the relationship of landlord and cultivating tenant. A learned single Judge of this Court in GOLLAVALLI RAMAKRISHNA MURTHY v. MURAMALLA AMMANNA RAJU (2 supra) held the Special Officer as a creation of statute can only exercise powers conferred by the statute and cannot usurp jurisdiction, which is not conferred. The power to order payment of arrears by tenant, power to direct tenants to partition property and power to decide question whether there is relationship of landlord and tenant, are not specifically conferred by the statute, in such a situation, the suit cannot b e said to be specifically barred. A learned single Judge of this Court in JADDU v. SUB- COLLECTOR, NRASAPUR, W.G.[3] after considering the Full Bench judgment held that the Tenancy Tahsildar has ample power to investigate into the facts and circumstances for the purpose of determining whether the relationship of landlord and cultivating tenant exists on the material date, to enable him to decide he dispute under Section 16(1) of the Act. In view of the principles laid down in the above judgments, it is for the Special officer-cum-Principal Junior Civil Judge, Kakinada to decide his jurisdiction to entertain ATC No.8 of 2009 on establishing the relationship of landlord and tenant. Merely because the landowners denying the relationship will not preclude him in deciding the relationship to confer the jurisdiction to decide the dispute in ATC. Suffice it to say that unless the respondent/tenant establish the jural relationship of landlord and tenant, Tribunal will not have any jurisdiction to grant the relief claimed, which has to be decided in an ellaborate enquiry conducted into the said matter. Whether Exs.P1 to P3 under which the respondent/tenant claims to be paid Maktha to Chinta Venkata Sastry under oral lease deed is genuine or not has to be gone into in detail by the lower court and the burden always lies upon the respondent/tenant to establish about the oral lease and payment of Maktha and raising of crops by him during the relevant period with relevant revenue records. This Court by interim order dated 30-04-2010 permitted the respondent/tenant to continue in possession and cultivate the land. Therefore, the interest of the petitioners/landowners has to be safeguarded. Even as admitted by the respondent/tenant that he had paid Maktha for the first and second crops for the year 2007-2008 under Exs.P1 and P2 and first crop for the year 2008-2009 under Ex.P3, but the Maktha for second crop for the year 2008-2009 has not been paid, which is payable in May, 2009. Therefore, on respondent/tenant paying Maktha for the second crop of the year 2008-2009 and first & second crops for the year 2009-2010, which is payable even according to the respondent/tenant by May, 2010, within two weeks from the date of receipt of a copy of this order and also gives a third party security equivalent to the said amount and further, future Maktha for the first crop of the year 2010-2011 is to be paid on or before 31-12-2010 and second crop by the end of May, 2011, he is permitted to continue to cultivate the land. Failure to comply any of the conditions, referred to above, the injunction stands vacated. On such deposit of Maktha or equivalent amount, the petitioners can withdraw the same without furnishing any security. The learned trial Judge is directed to dispose of A.T.C.No.8 of 2009 within a period of six months from today, as a special case, uninfluenced by any of the observations made by this Court while disposing of this revision. If the respondent/tenant has not cooperated with the disposal of ATC by leading evidence, it is open for the learned Judge to proceed with the matter ex-parte after recording the reasons for non-cooperation and decide the matter. The C.R.P. is accordingly disposed of. No costs. _________________ A.GOPAL REDDY, J. 25-06-2010 Murthy [1] 1970 (2) ALT 237 (FB) = AIR 1971 AP 87 [2] 2008 (5) ALT 712 [3] AIR 1975 AP 158