IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE SEVENTEENTH (17TH) DAY OF AUGUST, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5051 of 2006 Between: Palaparthy Savithramma & others … Petitioners And: Popuri Venkatarathnamma & others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5051 of 2006 ORDER: This revision is directed against the judgment dated 05.06.2006 in ATA No.69 of 1999 on the file of the Tenancy Appellate Tribunal cum Principal District Judge, Guntur, wherein the said appeal filed by the first petitioner herein under Section 16(2) of A.P. (Andhra Area) Tenancy Act 1956 (for short ‘the Act’), was dismissed confirming the order dated 05.08.1999 in ATC No.25 of 1996 on the file of the Special Officer cum Principal Junior Civil Judge, Bapatla, wherein the said petition filed by the first petitioner herein for eviction of the respondents from the schedule land i.e., Ac.2.81 cents in Sy.No.106 and Ac.1.69 cents in Sy.No.90 of Palaparru village was dismissed. 2. Heard the learned counsel for the petitioners and the learned counsel for the respondents. Perused the record. 3. The first petitioner herein-P.Savitramma filed ATC No.25 of 1996 against the first respondent for eviction, alleging in brief as follows: The petitioner and her sons (respondents 2 to 4 in the ATC) filed suit OS No.120 of 1955 on the file of the District Court, Guntur for partition and separate possession of their share. The first respondent was impleaded as 16th defendant in the suit as he was in possession of the schedule lands. There is no document evidencing the lease as claimed by the first respondent. He filed written statement as 16th defendant in OS No.120 of 1955, stating that he was a tenant and the rent payable by him was Rs.1000/- per annum. In the final decree proceedings, the schedule land was allotted to the share of the first petitioner and her sons-petitioners 2 to 4. They filed EP and obtained delivery of possession through the Court. The first respondent contested the said proceedings claiming to be a tenant. Being a party to the suit he was aware that the suit land allotted to the share of the petitioners. He did not however pay any maktha to the petitioners and committed default from 1989-90 to till date. He has therefore rendered himself liable for eviction. 4. The first respondent filed counter contesting ATC. Subsequently he died and his wife and son being LRs, are brought on record in the ATC (respondents herein) and they filed a memo adopting the counter filed by the first respondent. According to them, in the plaint filed by the first petitioner and her sons in OS No.120 of 1955 it was pleaded that the defendants 11 to 16 therein were in possession of the property as lessees. As the first petitioner and others tried to interfere with his peaceful possession and enjoyment of the schedule land, the first respondent filed OS No.192 of 1968 on the file of the District Munsif, Bapatla for permanent injunction. The said suit was decreed on 30.10.1970 and no appeal was preferred and the said decree became final. The first respondent was regularly paying maktha to P.Sesha Talpa Sai and his brother Madhusudhana Rao, who are defendants 6 and 7 in OS No.120 of 1955 and who are sons of the first wife of husband of the first petitioner. The first petitioner and others filed IA No.2429 of 1983 in OS No.120 of 1955 for appointment of a Receiver. One D.V.Rathnam, Advocate was appointed as Commissioner. The first respondent filed IA No.1017 of 1984 for deletion of the schedule land from the purview of the Receiver and the said petition was allowed. Sesha Talpa Sai and his brother preferred appeal in CMA No.184 of 1986 before this Court and the same was dismissed. In the said order, the High Court observed that the first respondent has to pay rents regularly and he shall be evicted by due process of law. Ever since, the first respondent has been paying maktha, either to the Receiver or depositing the same to the credit of OS No.120 of 1955. As per the final decree proceedings, the first petitioner is entitled for 70 cents in Sy.No.106 and 40 cents in Sy.No.90. Subsequent to the final decree, there was no co-ownership. Therefore, the first petitioner cannot maintain petition for the entire schedule land on behalf of the respondents 2 to 4. Having come to know about the delivery order passed in the execution petition, the first respondent filed EA No.664 of 1993 and IA No.666 of 1993 contending that the E.P. is not maintainable. The said application was dismissed and the first respondent preferred a revision and the same was allowed. The first respondent is a cultivating tenant and is governed by the provisions of A.P. Tenancy Act. After passing of the final decree, the first petitioner and her sons filed OS No.164 of 1993 for permanent injunction regarding schedule lands. The petitioners never protested against the deposit of the maktha by the first respondent in the Court. Even according to the first petitioner she took possession of the property in the execution proceedings. She cannot maintain the present application for the relief of eviction. 5. During enquiry before the Special Officer, PW.1 was examined and Exs.A.1 to A.4 were marked on behalf of the petitioner. RW.1 was examined and Exs.B.1 to B.15 were marked on behalf of the respondents 1, 5 and 6. The learned Special Officer framed the following points for consideration. 1. Whether the petitioner can maintain this petition for eviction of the first respondent (5th and 6th respondents) from the entire schedule property? 2. Whether the first respondent paid the maktha for the period from 1989-90 to till the date of filing of the petition? 6. On a consideration of the evidence available on record, the learned Special Officer held that the first petitioner cannot maintain the petition for eviction in respect of the entire land. On point No.2 it was held that the respondents 5 and 6 have established that they deposited maktha or paid the same for the period from 1989-90 till the date of filing of the petition regularly and therefore, there was no default and they are not liable to be evicted and accordingly, the petition was dismissed. Aggrieved by the same, the first petitioner filed appeal ATA No.69 of 1999. By impugned judgment, the learned District Judge, dismissed the appeal and confirmed the findings recorded by the learned Special Officer. Hence, the present revision by the petitioners. 7. Learned counsel for the petitioners would contend that Ex.A.2 lease deed being of the year 1965, the case is governed by the old un-amended provisions of the Act and the respondents, who are legal representatives of the original tenant- Satyanarayana, not having exercised their option in accordance with the procedure laid down under section 12 of the Act and not having served the notice in writing on the landlord-first petitioner within the period of three months from the date of demise of such cultivating tenant, as contemplated therein, are not entitled to continue as tenants. He would further contend that the respondents having come on record on their own as legal representatives of the deceased cultivating tenant Satyanarayana without exercising the option under section 12 of the Act cannot be conferred with legal status of the tenant, as the tenancy rights are made heritable only subsequent to the amendment, which came into force on 01.07.1980 by Act 39 of 1974, but not prior there to. He would further contend that even otherwise, the respondents, not having paid the rents from 1989-90 onwards, became defaulters rendering themselves liable for eviction and the alleged deposit of the rents in some other proceedings without notice to the first petitioner-landlord is of no avail and does not save the respondents from the consequences of default. Learned counsel for the petitioners would further contend that the petition filed by the first petitioner for herself and on behalf of her sons-petitioners 2 to 4 in respect of the entire land is maintainable notwithstanding final decree dated 30.11.1992 Ex.B.7 as there was no severance of status, but only severance in estate. 8. Learned counsel for the respondents on the other hand would contend that by filing an application seeking to come on record as legal representatives of the original tenant Satyanarayana who died during the pendency of ATC, the respondents have exercised the option under section 12 of the Act and therefore, they are entitled to continue the tenancy. He would further contend that the rents were duly remitted every year to the credit of the suit OS No.120 of 1955 on the file of the District Court, Guntur, as can be seen from the ledger extract and the learned Special Officer on a detailed scrutiny of the entries in the ledger extracts Exs.B.9 to B.11 held that there is no default in payment of rent and subsequent to filing of ATC also, the respondents deposited the maktha to the credit of ATC for the years 1997-98, 1998-99 and in the absence of notice to the petitioner regarding the said deposit by itself is not sufficient ground to order eviction and the said finding of the Special Officer, which was confirmed in appeal by the Appellate Tribunal does not call for any interference. He would further contend that under Ex.B.7 final decree, division was effected and separate shares were also allotted and there has been not only severance of status but also severance in estate and therefore, the first petitioner, who is only one of the sharers earlier and which was allotted portion of the schedule land for her share cannot file ATC in respect of her sons-other sharers also and pertaining to their shares in the schedule land. 9. In view of the rival contentions of the parties, the first and foremost question that arises for consideration is whether the application filed by the first petitioner for eviction of the respondents from the entirety of the schedule land is maintainable? 10. The petitioners 2 to 4 are the sons of the first petitioner Savitramma. The petition for eviction in ATC No.25 of 1996 was filed by the first petitioner alone and in the cause title of the petition her sons are impleaded as respondents 2 to 4. In the said petition, it is nowhere pleaded that the first petitioner was filing an application for and on behalf of her sons also or that they are impleaded as pro-forma respondents 2 to 4. It is not the case of the first petitioner that she is a power of attorney holder for her sons. It is not disputed that the petitioners filed a suit for partition in OS No.120 of 1955 and a preliminary decree was passed and in the final decree proceedings, a Commissioner was appointed and he filed report Ex.B.8 and later, final decree was passed under Ex.B.7 dated 30.11.1992 in IA No.2795 of 1980 where under the first petitioner was allotted 70 cents in Sy.No.106 out of an extent of Ac.2.81 cents and 42 cents in Sy.No.90 out of an extent of Ac.1.69 cents and the petitioners 2 to 4 were allotted similar extents for their respective shares. It is also not disputed that subsequently execution petition was filed for delivery of the respective shares and the petitioners have taken delivery of their shares in the schedule land. PW.1-first petitioner categorically admitted in evidence that herself and her sons i.e., petitioners 2 to 4 obtained delivery and separate possession of their respective shares in the schedule land as per the Commissioner’s report through Amin in the execution proceedings. Thus, by the date of filing of the ATC, the petitioners ceased to be co-owners in respect of the schedule land and there has been severance not only in status but also in estate, and the petitioners have taken delivery of their respective shares out of the schedule land through process of court in pursuance of the final decree. 11. Learned counsel for the petitioners would invite attention to the decision in ‘Khaja Qutubuddin Shareef vs. M.Satyanarayana[1]’, wherein this Court held that under A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, for filing eviction petition by one co-owner, consent of other co-owners is not necessary and such consent is necessary only if it is filed as agent of other co-owners. In the above decision, reference is made to T.S.Prakash v. Xavier Emmanuel’s case (994(3) ALT 461) and ‘K.Lakshmanarao vs. Gulam Habeeb Khan’s case (1992(3) ALT 481), wherein it was held that ‘even one co-owner can maintain the eviction petition against the tenant, even if other co- owners do not join’. The propositions laid down in the above decisions are not applicable to the facts of the present case for the simple reason that the petitioners ceased to be co-owners even by the date of filing of the ATC in view of partition effected by metes and bounds in the final decree proceedings in OS No.120 of 1955. 12. That apart, the above decision rendered under the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act 1960, wherein the definition of the term ‘landlord’ in Section 2(vi) is as follows: ‘Landlord’ means the owner of a building and includes a person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another person or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant…’ 13. As per the above definition, which is inclusive in nature even a person receiving or entitled to receive rent whether on his own or on behalf of another person or as an agent, trustee etc. is also a ‘landlord’ and can maintain the petition for eviction. The expression ‘landlord’ is defined under Section 2(f) of the Act as meaning, ‘the owner of a holding or part thereof who is entitled to evict the cultivating tenant from such holding or part, and includes the heirs, assignees, legal representatives of such owner or person deriving rights through him’. Thus, it can be seen that the definition of the expression ‘landlord’ in both enactments is qualitatively different and distinct in its scope and ambit. When the expression ‘landlord’ is specifically defined under section 2(f) of the Act, re-course to the definition of the said expression contained in the A.P. Buildings Act or to the decision rendered under the said Act is unwarranted. The petitioners being owners of distinct and separate holdings in their own right out of the schedule land, filing of the application by the first petitioner seeking eviction of the respondents form the entirety of the schedule land, though she is owner of only part thereof is not proper. In the counter filed by the respondents, it was specifically contended that after passing of the final decree, there was no joint family and jointness of the property and each sharer was the owner of separate and distinct property and hence, there is no question of co-ownership and the application filed by the petitioner is not maintainable. In spite of the objection raised by the original tenant in his counter, which was later adopted by his legal representatives-respondents herein, the petitioners have not taken any steps during the pendency of the ATC, but however filed IA No.2952 of 1999 in ATA No.69 of 1999 for transposing the respondents 1 to 3 in the appeal as appellants 2 to 4 and the said petition was allowed on 03.01.2005. By virtue of the same, the petitioners 2 to 4 herein came to be arrayed as appellants along with their mother-first petitioner, in the appeal and the same does not however cure the initial defect of first petitioner filing the application in respect of the entirety of the land, though she was holding only a portion of the schedule land. 14. Even otherwise, assuming that with the transposition of the petitioners 2 to 4 as appellants, the initial defect in filing ATC got cured, the next question that arises for consideration is whether the respondents can be considered to be the tenants after the death of the original tenant-Satyanarayana and whether the petition for eviction under the provisions of the Tenancy Act is maintainable. 15. It is not disputed that Satyanarayana original tenant who is the husband of the first respondent, father of 2nd respondent, entered into an agreement of lease under Ex.A.2 dated 01.07.1965. The first petitioner filed petition for eviction under Section 13 of the Tenancy Act on the ground of default in payment of rents. The original tenant filed a counter inter-alia denying that there was any default in payment of rent and contending that he has been regularly depositing the rents into Court from 1989-90 onwards. During the pendency of the ATC, the original tenant Satyanarayana died. The respondents herein filed an application in IA No.6 of 1999 seeking to come on record as legal representatives of the deceased Satyanarayana and the said petition was allowed on 17.02.1999. The said order impleading the respondents as legal representatives of the deceased original tenant became final. The contention of the petitioners is that the tenancy rights not being heritable prior to the amendment that came into force from 01.07.1980, the legal heirs of the original tenant ought to have exercised their option under section 12 of the old Act by serving a notice in writing on the landlord within three months from the date of demise of the original tenant and the respondents not having complied with the said statutory requirement, they cannot be deemed to be tenants. In the grounds of revision also, it is pleaded that the respondents 1 and 2 cannot be considered as tenants under the provisions of the Act and on the death of the deceased original tenant, the tenancy ceased to exist and there is no relationship of landlord and tenant between the petitioners and respondents. There appears to be some apparent self contradiction in the stand taken by the petitioners. When according to the petitioners, the respondents cannot be treated as tenants under the Act, the question of seeking eviction of the respondents by invoking the provisions of the Act does not simply arise. When according to the petitioners on the demise of the original owner, the tenancy ceased to exist and the tenancy rights not being heritable, the respondents could not have succeeded to the rights of the tenancy and having not exercised the option under Section 12 of the old Act, they are neither tenants nor entitled to be recognized as tenants, and the remedy for eviction does not lie under the provisions of the Act and perhaps lies elsewhere. The petitioners are however seeking eviction of the respondents under the provisions of the Tenancy Act on one hand while refusing to treat or recognize them as tenants on the other hand. 16. Section 13 of the Act, under which the application is filed, contemplates eviction of a cultivating tenant under certain circumstances. When the petitioners contend that the respondents herein are not the cultivating tenants at all, the question of seeking their eviction under section 13 of the Act is illogical. 17. The next question which arises for consideration is whether the respondents have in fact exercised the option under section 12 of the Act on the demise of the original tenant. 18. Admittedly, the original tenant died during the pendency of the ATC proceedings and the respondents filed application seeking their impleadment as legal representatives of the deceased tenant pleading that they have been continuing the tenancy. In support of their contention that in the absence of service of such notice as contemplated under section 12 of the Act, the respondents cannot be deemed to have exercised the option according to law, learned counsel for the petitioners relied upon the decision in ‘M.Ramaiah v. M.Govindu[2]’ wherein it was held as follows: “It is admitted that when the option has not been exercised by defendants 2 to 4 by serving notice in writing on the plaintiffs-landlords within a period of three months from the date of the demise of the first defendant, there cannot be any doubt that in so far as the defendants are concerned, after the expiry of the said three months they did not continue as tenants. Nor, can they thereafter be called as cultivating tenants within the meaning of Section 2(c) of the Act. Section 13 which relates to the termination of the tenancy is not applicable to such persons. It is true that section 12 of the act does not mention as to what will happen in case option is not exercised. But the inevitable result of the non-exercise of the said option was that the tenancy of the first defendant was terminated by the expiry of three months and the widow and the sons did not become cultivating tenants for purposes of the Act. Their position thereafter would be that of trespassers and not of tenants.’ 19. The above decision was rendered in a second appeal, which arose out of the civil suit for declaration of title and for recovery of possession and the defendants 2 to 4 were brought on record as legal representatives of the deceased first defendant and they contended that when the plaintiffs conceded that the first defendant was a tenant and that this Court has no jurisdiction to try the eviction of the defendants, it was therefore held that in the absence of exercise of the option under Section 12 of the Act, the position of the defendants 2 to 4 was that of trespassers and not either as tenant holding over or as cultivating tenant under the Act. It was further held that ‘the plaintiff therefore cannot be directed to have recourse to a remedy under Section 13 of the Act against them in order to recover possession. The civil Court is the appropriate Court to evict them as they are mere trespassers. Thus apart from the fact that the suit as framed is cognizable by the civil Court, the position of defendants 2 to 4 is that of trespassers and it is the civil Court that has got jurisdiction to direct their eviction.’ The decree for eviction passed by the trial Court which was confirmed in the first appeal was therefore not interfered with in the second appeal. The above decision is therefore of no avail to the petitioners herein, as it was laid therein that the civil Court is the appropriate Court to evict the defendants, who are mere trespassers but not cultivating tenants. 20. Learned counsel for the petitioners relied on the decision in ‘Kallam Jamapareddi vs. Yarava Krishnareddy[3]’, wherein it was held as follows: ‘The mere sending of the rent already due by money order cannot constitute a notice in writing exercising the option to continue as the tenant under section 12. If the sending of the money order by itself cannot constitute a notice in writing within the meaning of section 12, it cannot be converted into such a notice by the mere fact that the plaintiff allowed the defendants to continue in possession of the land for a period of one year without taking any action. The requirement of option to be exercised by serving a notice in writing within a period of three months cannot be construed as merely directory. Therefore the plaintiff is entitled to have the defendant evicted and possession delivered to him.’ 21. The above decision also came to be rendered in a first appeal that arose out of civil suit for eviction. The father of the defendant therein was the original tenant and he died leaving a Will under which the defendant claimed rights as a cultivating tenant and it was