THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1045 of 2010 July 15, 2011 Between: The Executive Officer, V.V.Reddy Panthulu Choultry, Korukonda, East Godavari District ... Appellant And Naga Narasimha Rao, S/o.Veerabbai And others ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1045 of 2010 JUDGMENT: The Executive Officer of V.V.Reddy Panthulu Choultry, Korukonda, East Godavari District filed instant second appeal against the judgment and decree in A.S.No.116 of 2008 dated 12.3.2010. By the impugned judgment, the learned first appellate Court reversed the judgment and decree in O.S.No.538 of 2005 dated 21.4.2008 passed by the Court of the II Additional Senior Civil Judge (Fast Track Court), Rajahmundry. The appellant is second defendant in the suit. The first respondent (hereafter, the plaintiff) became successful bidder in the auction conducted on 28.3.2005 for leasing out the agricultural land of the second respondent (the first defendant) for a period of three years i.e., 2005-06 to 2007-08. The plaintiff’s bid of Rs.1,01,000/- per year was accepted. The second defendant was paid an amount of Rs.25,000/- by the plaintiff agreeing to adjust the same in the rentals payable by the plaintiff. As per the terms of the lease, the plaintiff also paid Rs.9,000/-. Thus 1/3rd of lease amount of Rs.34,000/- was paid. Handing over of possession was not notified by beat of drum. Under the impression that the possession was delivered the plaintiff undertook agricultural operations and ploughed the land, after removing the thorny bushes and dried remnants of cotton plants. The plaintiff incurred an amount of Rs.50,000/- towards all this. In the mean while, Adapa Rama Rao and others filed O.S.No.625 of 2005 on the file of the Court of the Junior Civil Judge, Rajahmundry alleging that they are tenants of the land, that their status was confirmed by the Tenancy Tribunal and other Courts and that the auction conducted by the first defendant is illegal. They also obtained ad interim injunction against the defendants from interfering with the possession. By that time the defendants collected an amount of Rs.1,01,000/- towards yearly rent. The plaintiff, while making these allegations, sought for a decree for payment of Rs.1,51,000/- which includes the damages for breach of trust and expenses for ploughing operations. The first defendant remained ex parte. The defendants 3 and 4, namely, the Deputy Commissioner of Endowments, Kakinada and the Commissioner of Endowments, Hyderabad did not file written statements. They adopted the written statement filed by the second defendant choultry. In his written statement, the second defendant while admitting the auction conducted by choultry for leasing out the agricultural lands as well as collection of Rs.1,01,000/- towards annual lease amount as security opposed the suit mainly contending that possession was delivered to the plaintiff on 07.4.2005 that he ploughed the lands in the month of May, 2005 without any obstruction from anybody and, therefore, the plaintiff is not entitled to seek refund of the amount as well as the expenses for ploughing operations. The trial Court framed a sole issue as to whether the plaintiff is entitled to recover the suit amount. The plaintiff examined three witnesses including himself as P.W.1 and marked Exs.A1 to A12. The Manager of the second defendant deposed as D.W.1 and marked Exs.B1 to B7. Giving importance to the statement of P.W.1 that he obtained physical possession of the land, the trial Court came to the conclusion that it is for the plaintiff to protect his possession and he cannot seek refund of the amount and accordingly dismissed the suit. As noticed supra, the first appellate Court reversed the finding. The Counsel for the appellant/second defendant submits that under Section 82 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (the Act), the lease of an agricultural land by a charitable institution to any person other than a landless poor person as defined under the Act shall stand cancelled and, therefore, Adapa Rama Rao and others cannot claim any right to maintain the suit. He would nextly contend that after completion of the auction, the plaintiff was delivered possession and admittedly he ploughed the land and, therefore, any decree for refund of the amount would be contrary to the conditions of lease subject to which the plaintiff was put in possession. Lastly he would contend that Section 108 of the Transfer of Property Act, 1882 has no application to the lease of land by a charitable institution. There is no dispute that the first defendant notified auction under Ex.A1 which was conducted on 28.3.2005. There is also no dispute that on different dates the plaintiff deposited annual lease amount for Acs.21.92 comprised in R.S.No.227 of Nallagonda Village of Seetanagaram Mandal. By that time, as found by the first appellate Court, Adapa Rama Rao and others were cultivating the land prior to the auction under Ex.A1. There is not even an iota of evidence to show that the first defendant ever disclosed this aspect of the matter as either in the conditions of auction or in Ex.A1. Therefore the delivery of possession under Ex.B3 and ploughing of land by the plaintiff in May, 2005 would not enable the first defendant to retain the advance lease amount. The auction was conducted for leasing out agricultural land for a period of three years and the plaintiff became the successful bidder for Rs.1,01,000/- for the entire period of lease. When he was not able to cultivate the land by reason of injunction order obtained by Adapa Rama Rao and others, any amount retained by the first defendant would be unjust enrichment. Section 108 of the T.P. Act casts an obligation on the lessor to disclose to the lessee any material defect in the property with reference to its indebted use. When Adapa Rama Rao and others were declared as tenants of the first defendant and they had obtained an injunction, the plaintiff was prevented from cultivating the land for entire period and reaping fruits of the lease. Therefore by mere delivery of the land under Ex.B4, the defendants 1 and 2 cannot be said to have discharged their obligation. Dealing with this aspect, the first appellate Court observed as under. Further, by virtue of Section 108 T.P.Act, the lessor was bound to disclose the lessee the material defects in the property and the lessor was also bound to deliver quite enjoyment of the property and protect it all through. It is pertinent to note here that the enjoyment and possession of the property are with the legal heirs of the deceased Abbayi who was not a trespasser of the property but whose tenancy was cancelled statutorily. Under these circumstances merely because the property was delivered to the plaintiffs who took delivery of the property on behalf of his father i.e., the plaintiff and later the plaintiff got ploughed the land are not sufficient to hold that there was proper compliance of section 108 T.P. Act. Further, admittedly the land admeasuring Acs.21.93 is in two bits but in Ex.B3 delivery receipt no such two bits with clear boundaries are shown, which shows that the delivery of the two bits was not property and correctly effected. The first appellate Court decided the points framed by applying sound principles. The defendants 1 and 2 admit that by reason of the injunction order Ex.A12, the plaintiff did not cultivate the land for the year 2005-06 and, therefore, the decree passed by the first appellate Court after considering the evidence on record does not warrant any interference in this second appeal. The second appeal is, accordingly, dismissed. No costs. _______________ (V.V.S.RAO, J) July 15, 2011 YS