THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.6085 of 2006 Date: 10.3.2011 Between: Jasti Ammi Raju ……….. Petitioner. And Yedavilli Gowripathi Sastry and others. ……. Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.6085 of 2006 ORDER: The petitioner has been challenging the judgment and decree dated 6.9.2006 passed in A.T.C.No.31 of 2005 on the file of the Court of the Appellate Authority under A.P (Andhra Area) Tenancy Act (Principal District Judge, Rajahmundry), whereby and whereunder the Appellate Authority had reversed the order passed by the Special Officer-cum-Principal Junior Civil Judge), Rajahmundry in A.T.C No.28 of 1999, dated 29.7.2005. 2. The parities will be referred to as they are arrayed in the original A.T.C. 3. The petitioners filed the A.T.C under Sections 13 and 16 of the A.P (Andhra Area) Tenancy Act for eviction of the respondent from the petition schedule lands on the ground of willful default in payment of maktha. 4. The brief facts of the case are as follows: One Y. Sheshadri Sarma was the original landlord of the petition schedule lands. He died intestate on 28.6.1996. His wife Venkata Subblakshmi pre-deceased him. According to the case of the petitioners, the son of Seshadri Sarma viz., Veera Venkata Satyanarayanamurthy died unmarred on 01.12.1964 in a rail accident. According to the case of the respondent Venkata Chalapati Avadhanulu, another son of Seshadri Sarma left the village in 1970 at the age of 16 years. The parents of Seshadri Sarma died long back. It is the case of the respondent that Seshadri Sarma during his lifetime directed him to pay the arrears of maktha to his son Venakata Chalapathi Avadhanulu, whenever he returns to the village. It appears, during the lifetime of Seshadri Sarma, there was no dispute between the tenant and Y. Seshadri Sarma. 5. It appears from record that Gowripathi Sastry, Surya Subramanya Sastri (Petitioners 1 and 2), respectively, and Venkata Ramanayya Avadhanulu, Sitharam Murthy Kameswara Avadhanulu are the brothers of Y. Seshadri Sharma. Except petitioners 1 and 2, the other brothers of Y. Seshadri Sharma are no more. Petitioners 3 & 4 are the sons and the 5th petitioner is the grandson of late Venkata Ramanayya Aavadhanulu. Petitioner No.6 is the wife of late Sitharam Murthy. Petitioner Nos.7 & 8 are the sons of late Kameswara Avadanulu. Their further case is that except the petitioners, there are no other legal heirs of Seshadri Sarma to succeed to the estate of Seshadri Sarma. Their further case is that they obtained succession certificate from the District Court at Rajahmundry, and therefore, they have been recognized as legal heirs of Seshadri Sarma and that they are entitled to the petition schedule property as the legal heirs of late Seshadri Sarma. Their further case is that the respondent is a cultivating tenant of the petition schedule property on payment of 20 bags of paddy or its value on or before 15th of January of every year towards maktha, but the respondent has committed default in payment of maktha for the years 1994-95, 1995-96 during the life time of Seshadri Sarma, and even thereafter, during 1996-97 and 1997-98, and that the default is willful and therefore, they are entitled to evict the tenant. It is also their case that when petitioner No.8-Yedavalli Soma Sekara Syamala Rao and one Y.R.K Sarma demanded the respondent to pay maktha, he filed A.T.C No.41 of 1997 alleging that the petitioners are trying to sell away the property. It is the case of the respondent that his father was the original tenant for more than 35 years and after the death of his father in the year 1981, he became the tenant and since then he has been cultivating the land and paying maktha from time to time. However, he has admitted that the present maktha is 20 bags of paddy per annum payable on or before 15th of every month of January. It is the specific case of the respondent that during the life time of Seshadri Sarma used to receive the value of the paddy in advance and in case of failure of the respondent to pay the advance, Seshadri Sarma used to obtain pro-note as security for the value of the maktha, and sometimes, he obtained kararnama letters for the maktha and after payment of the maktha, Seshadri Sarma used to return the pro-notes and kararnamas. It is his specific case that he paid maktha up to 1996 to 1997 without any default. His further case is that Yedavalli Venkata Chalapathi Avadhanulu was the son of Seshadri Sarma, who left his house in 1970 at the age of 16 years and that his whereabouts are not known and that the enquiry revealed that he used to reside at some other place around Rajahmundry. It is also his case that Seshadri Sarma used to tell him that after his demise, he (the tenant) should pay makta to his son Venkata Chalapati Avadhanulu whenever he returns to his village. It is also his case that, after the death of Seshadri Sarma, when the petitioners demanded him to vacate the petition schedule land and try to sell away, he filed A.T.C.No.41 of 1997 seeking a declaration of his tenancy rights and that A.T.C No.41 of 1997 was allowed. His specific case is that he has not committed any default in payment of makta. 6. On behalf of the petitioners, the 5th petitioner was examined as P.W.1 and Exs.A1 to A9 were marked. On behalf of the respondent, the respondent himself was examined as R.W.1 and Exs.B1 to B26 were marked. 7. The Special Officer, on appreciation of oral and documentary evidence, came to the conclusion that there is no willful default on the part of the respondent in paying the maktha. It is also observed that since the petitioners did not establish their title, the respondent is not expected to pay maktha to them. Thus, the Court below held that even if there is some delay in payment of maktha before filing the petition, the same cannot be said to be willful default, and that unless the petitioners establish their title to the petition schedule, they cannot claim to be the landlords and cannot seek rent from the respondent, and accordingly dismissed A.T.C. with costs. Challenging the same, the petitioners filed A.T.A before the Appellate Authority. The learned Appellate Authority observing that the petitioners have obtained orders in O.P.No.519 of 1996 and that the petitioners 1 to 8 are the nearest legal heirs of late Seshadri Sarma and though the respondent is not a party in O.P.No.519 of 1996, the decision therein operates as judgment in rem and that only natural born son of Seshardri Sarma viz., Verra Venkata Satyanarayanamurthy is presumed to be dead by 01.12.1964 itself and that after the death of Seshadri Sarma, the respondent committed default in payment of maktha. It is also observed that the pleadings of the respondent that Seshadri Sarma, during his life time, instructed him to pay the rents and deliver the schedule land to his son Venkata Chalapathi Avadhanulu is a mischievous pleading. It is also held that the respondent has committed default in payment of maktha for the years 1994-95, 1995- 96, 1996-97 and 1997-98 and therefore, the tenant is liable to be evicted. Challenging the same, this revision has been filed. 8. The main contention of the learned counsel for the petitioners is that the Appellate Authority is not justified in reversing the well- considered judgment of the Special Officer. It is also his submission that the order of the Special Officer is perfectly justified and legal and on appreciation of proper evidence. It is also argued that the finding of the Appellate Authority that the respondent committed default in payment of the maktha for the year 1994-95 i.e during the lifetime of the original landlord, is clearly perverse since the original land lord never complained that the tenant failed to pay rents for the years 1994- 95. It is also argued that when the petitioners failed to prove that they are the legal heirs of the original landlord, the respondent was not expected to pay the rents to them. It is also his submission that as there was delay in passing orders directing him to pay rents, the delay occurred in payment of maktha. 9. The main submission of the learned counsel for the petitioners/landlords is that the respondent has committed default in payment of rents for the year 1994-95, 1995-96, 1996-97 and 1997-98 and that the appellate Court has properly appreciated the evidence and held that the respondent committed default in payment of maktha. His main submission is that the petitioners are the legal heirs and by virtue of Section 8 of the Hindu Succession Act, they succeeded to the properties of Seshadri Sarma, after his demise. It is also his submission that by virtue of obtaining succession certificate with regard to the movable properties, they are deemed to have succeeded to the immovable properties of Seshadri Sarma also. It is also his submission that the respondent/tenant has been playing hide and seek game and he is avoiding to pay maktha to the petitioners. 10. The only point that arises for consideration is whether the respondent/tenant has committed default in payment of maktha? 11. Admittedly, one Seshadri Sarma was the original landlord and the respondent is the tenant. The petitioners’ case is that Seshadri Sarma had only one son by namely; Veera Venkata Satyanarayanamurty, who died in train accident on 01.12.1964 and that is proved by Exs.A2 and A3. Ex.A1 is the certified copy of post card, dated 01.12.1964, addressed by the Sub-Inspector of Railway Police, Dornakal to Seshadri Sarma, which reads that one dead body was found on railway track near Mahaboobabad Railway Station and that the accompanying articles revealed identify of the dead body as that of Yedavalli Veera Venkata Satyanarayanamurty S/o.Seshadri Sarma, resident of Bhimavaram. Ex.A3 is the certified copy of another letter addressed by the Sub-Inspector of Police, Dornakal, dated 22.12.1964, addressed to Seshadri Sarma through which some properties of Yedavalli Veera Venkata Satyanarayanamurty were sent. The respondent’s case is that Seshadri Sarma had another son by name Venkata Chalapathi Avadhanulu, who left his house in the year 1970 and since then his whereabouts are not known and late Seshadri Sarma directed him to pay the arrears of maktha to his son in case he returns to their village. 12. The learned Appellate Authority has drawn a legal presumption under Section 108 of the Indian Evidence Act to the effect that in a case where abouts of a person are not heard for over a period of seven years by those who would naturally have heard of him, then he is presumed to be dead and therefore, even if Seshadri Sarma had a son by name Vekata Chalapathi Avadhanulu, he is presumed to be dead. This declaration by the appellate authority appears to be clearly without jurisdiction. Admittedly, Seshadri Sarma died on 28.6.1996 intestate. Though the record reveals that the petitioners filed O.P.No.519 of 1986 claiming to be the legal heirs of Seshardri Sarma and they have obtained succession certificate in respect of certain deposits left by Seshadri Sarma in several banks, by that itself it cannot be said that the petitioners have succeeded to the immovable properties of Seshadri Sarma. It has to be seen that the respondent had filed A.T.C.No.41 of 1997, against the petitioners and also against Venkata Chalapathi Avadhanulu showing him as a son of Seshardri Sarma. No record is available before this Court so as to ascertain what is the endorsement on the notices sent to the address of Venkata Chalapathi Avadhanulu in the said A.T.C. It appears that no civil suit is filed by the petitioners seeking a declaration that a legal presumption has to be drawn that Venkata Chalapathi Avadhanulu, son of Seshadri Sarma is presumed to be dead and that the petitioners have succeeded to the immovable properties of the Seshadri Sharma. In the absence of obtaining any such declaration from the Civil Court it is difficult to draw legal presumption about the death of Venkata Chapapathi Avadhanulu. In the above circumstances, the petitioners cannot demand any maktha from the respondent and cannot say that the respondent has committed default in payment of maktha to them. Even otherwise coming to the aspect of default, it has to be seen that Seshadri Sarma admittedly died on 29.6.1996. It is not the case of the petitioners that Seshadri Sarma told them that the respondent has committed default in payment of maktha during his lifetime. Admittedly, Seshadri Sarma did not initiate any proceedings or issued any legal notice to the respondent that he committed default in payment of makta for the years 1994-95. When late Seshadri Sarma himself did not make any demand or alleged that the respondent has committed any default in payment of maktha for the years 1994-95 and 1995-96, the petitioners cannot say that the respondent committed default in payment of maktha during the life time of late Seshadri Sarma. As far as the remaining period of 1996-97 and 1997-98 is concerned, admittedly, the respondent had filed ATC No.41 of 1997 and obtained orders on 10.9.2001 for deposit of rents. Of course, there may be some delay in deposit of rents in the said ATC, but it cannot be said that the respondent has committed willful default in payment of makta. Anyhow, the petitioners, without establishing their title to the property or without obtaining any declaration from a Civil Court cannot claim the arrears of maktha from the respondent. Willful default arises only in case where the tenant has willfully or negligently failed to pay the maktha. The Special Officer or the Appellate Authority while dealing with a dispute between a landlord and tenant cannot declare the title of a landlord. What is to be decided by the Civil Court, after full pledged trial, cannot be decided by the Special officer or appellate authority while dealing with a dispute between tenant and landlord. The Special Officer or the appellate authority cannot declare or draw a legal presumption about the death of Venkata Chalapati Avadhanulu and the same has to be declared by a competent Civil Court in appropriate proceedings. Therefore, the finding of the Appellate Authority that the petitioners have succeeded the estate of late Seshadri Sarma or that Venkata Chalapathi Avadhanulu is presumed to be dead are clearly without any jurisdiction. Therefore, the findings of the Appellate Authority are clearly perverse and accordingly, the order of the Appellate Authority is set aside. The petitioner/tenant is however may deposit the arrears of rents in A.T.C.No.41 of 1997 or in any appropriate proceedings, till the dispute is finally settled by the competent Civil Court. This order will not come in the way of legal heirs of Seshadri Sarma from seeking necessary relief from the competent Civil Court in appropriate proceedings. 13. Accordingly, the Civil Revision Petition is allowed. No order as to costs. ______________________ Justice B.Chandra Kumar Date:10.3.2011. mrb