THE HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.646 of 2010 JUDGMENT: This second appeal is preferred by the defendants, who unsuccessfully challenged the judgment and decree dated 09.11.2006 passed by the Junior Civil Judge, Alamuru in O.S.No.112 of 1997, in A.S.No.3 of 2007 on the file of Senior Civil Judge, Ramachandrapuram, whereby the appeal preferred by the appellants/defendants has been dismissed confirming the judgment of the trial Court. The respondents herein, who are the mother and her adopted son, filed the above suit for declaration of title to the plaint schedule property, for recovery of possession of the same by directing the defendants to remove the structures therein and for damages. It is stated that late Subbarao, the husband of the first plaintiff and adoptive father of the second plaintiff, was the absolute owner of the plaint schedule property admeasuring an extent of Ac.0.90 cents in R.S.No.503/6 situated at Alamuru Village as it was given to him as service Inam. Late Subbarao leased out the same to the father-in-law of the first defendant in the year 1975 and died in the year 1985. On 01.03.1991, the revenue authorities issued Ryotwari patta for the schedule property in favour of the first plaintiff. After the death of father-in-law of the first defendant, the first defendant approached the first plaintiff to permit him to cultivate the schedule land as a tenant on payment of Rs.4,000/- per annum, and accordingly he was permitted to cultivate the schedule land on payment of rent from 1986 to 1992. Taking advantage of the weakness of the plaintiffs, the first defendant started digging pits in the schedule land without the consent of the plaintiffs and started brick kiln and did not pay maktha. Though the plaintiffs requested the defendants, who are husband and wife, through the elders for the maktha and also to stop removing the earth and carrying brick kiln operations, they did not heed to their request, and hence, they got issued notice 07.02.1997 to which the first defendant gave reply on 12.03.1997 stating that the second defendant is the owner of the schedule property and thus denied the title. Hence, the suit. The first defendant filed written statement, which was adopted by his wife second defendant, stating that the plaint schedule property was enjoyed by the husband of the first plaintiff during his life time and that he leased out the same to the father-in-law of the first defendant in the year 1975. But the first defendant denied that he used to pay maktha to the husband of the first plaintiff during his lifetime and thereafter to the plaintiffs till 1992. It is further stated that during the life time of the husband of the first plaintiff, he executed a lease deed in favour of the father of the second defendant for a period of 99 years on 24.08.1967 on payment of Rs.6000/- per annum; that the father of the second defendant executed a Will deed on 25.06.1970 bequeathing the plaint schedule property in favour of the second defendant, his only daughter, and thus they are in possession of the property and therefore, they have every right to enjoy the property till 99 years lease period is completed, and that since they are in possession of the property for more than 30 years they have acquired title by adverse possession. Based on the above pleadings, the trial Court framed the following issues for trial: i) Whether the plaintiff is entitled for declaration as prayed for? ii) Whether the plaintiff is entitled for eviction of defendant from suit property by removing the structures therein and for the vacant possession thereof? iii) Whether the plaintiff is entitled for damages and past profits as prayed for? iv) To what relief? In order to prove the case, on behalf of the plaintiffs, the plaintiffs examined themselves as P.Ws.1 and 2 and also examined three more witnesses as P.Ws.3 and 5 and got marked Exs.A.1 to A.6. On behalf of the defendants, the first defendant examined himself as D.W.1 and also examined three more witnesses as D.Ws.2 to 4 and got marked Ex.B.1-Will deed. D.W.3, who filed an affidavit in lieu of examination-in-chief, did not turn up for cross-examination. Hence, his evidence was eschewed. The learned trial Court, on elaborate consideration of the oral and documentary evidence adduced by the parties, and in view of the admission of the defendants that the husband of the first plaintiff leased out the plaint schedule property in favour of the father-in-law of the first defendant and as Ex.B.1-Will deed said to have been executed by the father-in-law of the first defendant was not proved, as none connected with the document was examined, and as the evidence of D.W.1 was inconsistent, decreed the suit negativing the plea of the defendants, vide judgment dated 09.11.2006. Aggrieved by the said judgment, the defendants carried the matter in appeal before the lower appellate Court. The lower appellate Court framed the following points for consideration: (a) Whether it is under 99 years lease or on annual lease the defendants are in possession of the plaint schedule property? (b) Whether the civil Court got jurisdiction or not? (c) Whether the defendants have perfected their title by adverse possession? (d) Whether the plaintiffs are entitled for the damages or past profits as they prayed for? (e) Whether additional evidence as sought for in I.A.No.1187/2009 can be received in this appeal? The lower appellate Court, on points (a) and (e) held that the said lease deed was sought to be sent to the District Collector for impounding and it was at the instance of the defendants only. But the said lease deed did not reach the trial Court till 26.07.2006, by which date the evidence for both sides was closed; that when the suit was coming up for arguments, the defendants filed I.A.No.1187 of 2009 under Order XLI Rule 27 r/w Section 151 C.P.C. to receive the said lease deed as additional evidence and that the defendants failed to prove 99 years lease and therefore the same is not admissible in evidence; on point (b) it was held that cloud was created over the title of the plaintiffs over the plaint schedule property and hence it was necessary for them to file a declaratory suit; that when the defendants pleaded that the plaint schedule property was used for growing gross as deposed by them during the course of evidence and the same was converted into a brick kiln, the provisions of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (for short ‘the Tenancy Act’), are not applicable, and therefore, the suit is the only proper remedy and accordingly upheld the maintainability of the suit; on point (c) it was held that once the defendants failed to prove 99 years lease, their perfecting title to the schedule property cannot be an adverse, and on point (d) it was held that the case of the plaintiffs can be accepted that the plaint schedule property fetches rent of Rs.4,000/- per annum and as such they are entitled to Rs.8,000/- claimed towards damages or past profits, and accordingly dismissed the appeal confirming the judgment and decree passed by the trial Court. Sri T.S.Anand, learned counsel appearing for the appellants /defendants contended that when there is a lease in favour of the father-in-law of the first defendant and the same has been admitted, it is only the Tribunal constituted under the Tenancy Act will have exclusive jurisdiction to try the case and the Civil Court will not have jurisdiction. To buttress the said submission, he placed reliance on a judgment of this Court in Alla Nageswara Rao (died) and others v. Kalipindi Appala Narasamma and others[1]. On appeal being filed against the said judgment, the Supreme Court in Civil Appeal No.4792 of 2008, dated 04.08.2008 held that the suit was filed for declaration of title and recovery of possession and the same was maintainable before the civil court and merely because for granting of ancillary relief claimed by the plaintiffs, including the relief of recovery of possession, the Special Officer could have been moved, the civil court’s jurisdiction cannot be treated to have been ousted and the High Court committed an error in dismissing the suit on the ground that civil court did not have jurisdiction to entertain the suit, and accordingly allowed the appeal. Admittedly, in the present case, the defendants set up an independent title in the suit schedule property under the Will deed said to have been executed by the father-in-law of the first defendant, in whose favour 99 years lease said to have been granted by the husband of the first plaintiff, which has not been established by the defendants. Further, when the land was leased out for growing gross as per the evidence adduced by the parties and later it was converted into brick kiln, the provisions of the Tenancy Act are not applicable. When there is no valid lease established by the defendants in their favour and the tenancy rights accrued in their favour on the death of the father-in-law of the first defendant, the defendants cannot say that they are the tenants of the suit schedule property on mere assertion. In view of the concurrent findings arrived at by the both the Courts below, no question of law, much less substantial question of law, arise for consideration in this Second Appeal. The Second Appeal is accordingly dismissed. There shall be no order as to costs. _____________________ A. GOPAL REDDY, J Date: 30.07.2010 va [1] 2006(3) ALT 152