*HON'BLE SRI JUSTICE G. BHAVANI PRASAD +S.A. No.1412 of 2010 % 20/08/2011 # Ganta Baby (Machineni Baby) .. APPELLANT Vs. $ Ganta Prasada Rao .. RESPONDENT ! COUNSEL FOR THE APPELLANT: Sri V. Venugopala Rao ^ COUNSEL FOR THE RESPONDENT: Kum. Nimmagadda Revathi < Gist : Ø Head Note: ? CITATIONS: 1. 1996 A I H C 3017 2. 1983(1) APLJ 148 (HC) 3. 1961(1) An.W.R. 120 4. 1957(2) An.W.R. 478 5. 1997 (4) ALT 376 6. 2002 A I H C 3373 7. (1985) 2 Supreme Court Cases 54 8. (1994) 1 Supreme Court Cases 611 JUDGMENT: The second appeal is directed against the judgment and decree in A.S. No.72 of 2005 on the file of the IV Additional District Judge (Fast Track Court) at Khammam, dated 28-09-2010. The parties are referred to herein as they are arrayed before the trial Court. The plaintiff sued the defendant for declaration of her title over the suit schedule property of Ac.3.29 guntas in survey Nos.124 and 125 of Lingapalem claiming the same to have been gifted to her under a gift deed, dated 22-06-1988 by Ganta Savitramma. The plaintiff claimed the land to be under her cultivation and to have been leased out to the defendant in 1998 for one year for a rent of 10 bags of paddy per acre. The defendant was claimed to have not vacated the land and assaulted the plaintiff while not paying the rent, on which proceedings ensued before the revenue authorities and also before the police leading to an order by the station house officer of Vemsur police station on 13-08-1999 not to disturb the possession of the defendant till his eviction by due process of law. In Criminal R.C. No.1028 of 1999, the High Court directed the Mandal Revenue Officer to dispose of the matter after an opportunity to both parties and against the order of the Mandal Revenue Officer thereafter, the plaintiff filed Criminal Revision Petition No.13 of 2000 before Sessions Judge, Khammam, which was allowed. The defendant filed Criminal R.C. No.1020 of 2000 before the High Court against that order and this Court by order, dated 20-11-2000 ordered the parties to approach Civil Court for suitable remedies. On the order passed by the Mandal Revenue Officer to enter the name of the defendant in respect of the land in the revenue records on 05-06-2001, W.P. No.13955 of 2002 was filed by the plaintiff, which is pending before the High Court. The order of the Mandal Revenue Officer was the subject of interim suspension by this Court. Consequently, the plaintiff sought for declaration of her ownership, consequential delivery of vacant possession by evicting the defendant, mesne profits, past and future, and costs. The defendant in his written statement contended that on the allegation of the plaintiff that there was relationship of landlord and tenant between the parties, the remedies provided under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short “the Act”) should have been resorted to, but not a remedy before Civil Court, which has no jurisdiction. The defendant claimed that his mother Savitramma never had any title in the subject land and she and the brother of the defendant had no right to execute any gift deed in favour of the plaintiff. The mother of the defendant Savitramma is an illiterate and the gift deed obtained fraudulently with undue influence is null and void. The plaintiff can acquire no right, title or interest in the property under the said document and in pursuance of a family arrangement, the properties of Chennaiah including the suit property were gifted to the father of the defendant and the properties are being enjoyed by the defendant, his father and his brothers. The father and brothers and the defendant effected a partition in May, 1999, in which Ac.2.00 in R.S. No.124 fell to the share of the defendant along with other items, while the remaining Ac.2.00 of the suit land fell to the share of the father of the defendant along with other items. The defendant’s father gifted the said Ac.2.00 in R.S. Nos.124 and 125 to the defendant orally. Thus, the defendant is in exclusive possession and enjoyment of the suit land as absolute owner and desired the suit to be dismissed. While so, the defendant filed I.A. No.108 of 2005 claiming that the issue of jurisdiction should be decided as a preliminary issue in view of the order of the High Court in Criminal R.C. No.1020 of 2000. He contended that the Civil Court has no jurisdiction in view of a dispute regarding tenancy also being involved. The plaintiff claimed that the written statement specifically pleaded the property to be not the property of the plaintiff and therefore, the suit for declaration, recovery of possession, etc., which cannot be decided by the Tribunal, is maintainable before Civil Court. After hearing both sides, the trial Court passed an order on 21-04-2005 referring to the rival contentions and the history of the dispute and the observations of this Court in Criminal R.C. No.1020 of 2000 to the effect that once it is concluded that there is relationship of landlord and tenant between the parties inter se, then the jurisdiction is vested with the Special Officer under the Act and the party in possession cannot be ousted except in accordance with the provisions of the Act. The High Court also observed that it is always open for the parties to workout their rights and liabilities before an appropriate forum. The trial Court further noted that the three precedents cited by the plaintiff are not applicable to the facts of the case, while the decision reported in 1957(2) An.W.R. 478 read with the observations of the High Court in Criminal R.C. No.1020 of 2000 indicates that the Civil Court has no jurisdiction. On the precedents relied on, the trial Court observed that if any question arises whether a particular tenant is a protected tenant, the exclusive jurisdiction to decide that question is only conferred on the Tahsildar and the Civil Court has no jurisdiction. Accordingly, the trial Court allowed the interlocutory application without costs and consequently, dismissed the suit without costs by its order dated 21-04-2005. In the appeal against the said order in A.S. No.72 of 2005 on the file of the IV Additional District Judge (Fast Track Court) at Khammam, the impugned judgment was delivered again referring to the pleadings in the suit, the issues framed by the trial Court, the contentions in I.A. No.108 of 2005 and the question to be decided about the justification for dismissal of the suit for want of jurisdiction. The appellate Court also opined that the observations of the High Court in Criminal R.C. No.1020 of 2000, against which the plaintiff did not prefer any further revision or appeal, had become final and conclusive and as the High Court observed that a clear cut finding was given by the Executive Magistrate, the decision reported in 1957(2) An.W.R. 478 is attracted as opined by the trial Court. Accordingly, it dismissed the appeal without costs. The unsuccessful plaintiff is, therefore, before this Court contending that the order in Criminal R.C. No.1020 of 2000 was misinterpreted and misconstrued. The findings of the High Court therein clearly left it open for the parties to workout their rights and liabilities before an appropriate forum depending on the nature of the dispute. The plaintiff, therefore, contended that substantial questions of law arise for consideration of this Court in the second appeal. On 31-12-2010 a learned Judge of this Court considered the substantial questions of law raised by the plaintiff to be involved in the second appeal and admitted the second appeal. Sri V. Venugopala Rao, learned counsel for the appellant/plaintiff and Kum. Nimmagadda Revathi, learned counsel for the respondent/defendant are heard and both the learned counsel referred to certain precedents, which will be referred to in due course. The substantial questions of law as suggested by the plaintiff in the memorandum of grounds of the second appeal and as accepted by the learned Judge at the time of admission are as follows: 1. Whether the civil suit is not maintainable when the suit is filed for declaration of title basing on a registered gift deed and consequential relief of recovery of possession when there was a serious dispute with regard to title of the parties, or shall the parties invoke the course under the provisions of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 before the Special Court/Tribunal ? 2. Whether the jural relationship of lessor and lessee can be construed as jural relationship of tenancy which attracts the provisions of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, more particularly when the defendant categorically denies any such relationship between the parties ? 3. Whether the trial Court is justified in dismissing the suit as confirmed by the first appellate Court holding that the said Court has no jurisdiction to proceed with the suit proceedings, without taking recourse to Order VII Rules 10 and 10-A of CPC and to return the plaint instead of dismissing the suit, which is the mandatory course to be followed by the trial Court ? Questions 1 to 3: In short, the question that arises for consideration in the second appeal is the existence or otherwise of the jurisdiction of the Civil Court on the facts and circumstances arising out of the rival pleadings and contentions of the parties. The plaint, while claiming the plaintiff to be the absolute owner of the suit land in pursuance of a gift deed, referred to the defendant to be a lease holder only for one year and there was no reference to the status of his relationship with the suit land vis-à- vis the provisions of the Act except the reference in para 4 of the plaint to the relief of recovery of possession being by evicting the defendant-‘tenant’. What were claimed towards the income from the suit land, past and future, were only mesne profits and not rent. The defendant was very specific in the written statement in denying any jural or factual relationship between him and the plaintiff in the nature of tenant and landlord within the meaning of the special Statute or even otherwise. He was referring to the claimed absence of jurisdiction of the Civil Court only on the basis of the claim of the plaintiff in the plaint about the defendant being a lease holder of the land for one year in 1998. The Act defines a tenant in Section 2(v) as an asami shikmi who holds land on lease and includes a person who is deemed to be a tenant under the provisions of that Act. Persons deemed to be tenants were described in Section 5 and Section 6 prohibited leases after three years from the commencement of the Act except as provided in Section 7 and otherwise the provision prohibited creation of any tenancy in respect of any land after the expiry of the period. If a person is a tenant in respect of any land governed by the Statute, his eviction and recovery of possession by the landholder can only be under an order of Tahsildar on an application for the purpose and after an enquiry in terms of Section 32 of the Act. While the provisions relating to protected tenants need no reference herein with either party not even remotely claiming any creation of protected tenancy in respect of the suit land, this special Statute provided for special Fora for determination of the questions in dispute arising under the Statute. In so far as such questions are concerned, which fall under the jurisdiction of the authorities under the Act, the jurisdiction of Civil Court is ousted by Section 99 of the Act. Any question required to be settled, decided or dealt with by the Tahsildar, Tribunal, Collector, Board of Revenue or Government and any order made by them under the Act are kept outside the purview of a Civil Court, while such orders are also out of the jurisdiction of a Criminal Court. Considering the question, in B. Naga Reddy v. M. Parvataiah[1], a Division Bench of this Court held that although some of the claims advanced by a litigant are governed by the provisions of a special enactment, there is no presumption that the jurisdiction of the Civil Court, by necessary implication, is ousted unless it is shown that the relief sought could be granted by the authorities under the Act. Where the authorities have no jurisdiction to grant the relief claimed, there is no warrant for the presumption that the jurisdiction of the Civil Court is ousted. In the present case, it cannot be seriously in question that the authorities under the special Statute were not vested with the jurisdiction to grant any declaration of title in respect of any immovable property. Another Division Bench of this Court in Hanmanth Reddy and others v. Kamsali Nagamma[2] was also considering the applicability of Section 99 of the Act and held that where the relief sought in a suit is one which the Special Tribunal is incapable of granting, the jurisdiction of the Civil Court is not ousted merely because the question which has to be incidentally decided is a question within the competence of a Special Tribunal. While the allegations in the plaint alone have to be looked into to determine the forum, the jurisdiction of the Civil Court cannot be excluded even if the defence put forward involves adjudication of matters within the competence of the Special Tribunal. The Division Bench was referring to the earlier precedents and considered the dispute before them involving a controversy, whether the defendant is a tenant at all, which has to be incidentally decided, to be not outside the purview of a Civil Court. The Division Bench had, in fact, referred to Itikala Venkataramayya v. Kommu Guruviah[3] relied on by the plaintiff before the Courts below. In the said decision, another Division Bench of this Court was dealing with a dispute, wherein the plaintiff claiming ownership alleged the lands to have been let out to the defendants and the defendants in turn denied the ownership of the plaintiff. The contention of the defendants that as the plaintiff himself stated the defendants to be his tenants, that is sufficient to oust the jurisdiction of the Civil Court, was expressly negatived by the Division Bench. Looking into the plaint allegations referring to the denial of title by the defendants, the Division Bench concluded that the Civil Court has alone the jurisdiction to try the suit. The provisions of the Statute were held not to affect the rights inter se between the persons setting up rights of ownership to a particular land or a dispute between an owner and a trespasser or a person other than a tenant. In expressing this view, the Division Bench followed Sharfuddin v. Sama Yelluga and others[4], which was the basis for the conclusion of the Courts below in the present case about the absence of jurisdiction for the Civil Court. As such, this precedent, followed in the later decisions, about the dispute as to the ownership of the land and lease of the lands by the owner to the defendants, being clearly within the jurisdiction of the Civil Court, clearly appears applicable on identical facts. Later another learned Judge of this Court held in Prabhulingam v. Y. Ramiah and others[5] that the bar of jurisdiction of Civil Courts under the Act does not extend to the disputes between the persons claiming ownership rights as protected tenants and a third party claiming rights by adverse possession. When the dispute is only between a tenant/protected tenant and land owner, the bar applies and the jurisdiction of Civil Courts to decide disputes, which cannot be settled, decided or dealt with by any of the Tribunals under the Act, is not ousted, such disputes being disputes of civil nature. Similarly in Chenna Reddy v. P. Ram Reddy[6], another learned Judge of this Court was dealing with the defence claiming the defendants to be not tenants like in the present case and held with reference to various precedents that while the special enactment is meant to settle the disputes between the landlords and tenants, when the defendants take a definite plea that there was no landlord and tenant relationship, the question of filing the matter before the Special Tribunal does not arise. The learned Judge while referring to the claim of the defendants to have become owners in exchange, concluded the Civil Court to be the best forum for the parties to agitate their rights when once there is no relationship of landlord and tenant. Even in Abdulla Bin Ali and others v. Galappa and others[7] relied on by Miss Revathi, what the Apex Court was laying emphasis on, is about the allegations in the plaint and not the contentions in the written statement deciding the forum and the jurisdiction and need to read the plaint as a whole. While the Apex Court held in the dispute before it that the suit against a trespasser would lie only in the Civil Court and not in the Revenue Court, a reading of the plaint herein as a whole makes it clear that any legal relationship between the parties within the scope of the special Statute is nowhere specifically alleged or impliedly admitted in the plaint with reference to the provisions of the Statute already referred to above. Similarly Kum. Revathi also referred to Saraswati v. Lachanna[8], wherein the Apex Court, dealing with the bar of Civil Court’s jurisdiction under the Act, made it clear that the situation will be different concerning the ouster of the jurisdiction of the Civil Court where the Statute neither creates the right in question nor provides any remedy or forum for adjudication of any dispute arising out of such right or liability. The ouster of Civil Court’s jurisdiction is not to be easily inferred. While, thus, it is clear that the ouster of the Civil Court’s jurisdiction has to be either clearly expressed or necessarily implied and not to be easily inferred, the principle laid down by the Apex Court concerning the maintainability of a suit for redemption will, on an analogy, be applicable to a suit for declaration of title also and the Civil Court, in which power is vested to try all suits of civil nature except when expressly or impliedly barred, will be, undoubtedly, competent to try the suit for declaration of title, which relief no authority under the special Statute can grant herein. Even the order of this Court in Criminal R.C. No.1020 of 2000 narrated the history of the dispute that came up for consideration and in the process observed that apart from the question of possession, the dispute as regards tenancy also would arise. The further observation that once it is concluded that there is relationship of landlord and tenant between the parties inter se, then the jurisdiction is vested with the Special Officer under the Act, can only be understood to mean, if the order is read as a whole, that in the event of such jural relationship being concluded in any proceeding, then the exclusive jurisdiction under the special Statute automatically surfaces, as the person in possession in the capacity of a tenant under the Act cannot be ousted from the land except in accordance with the special Statute. The learned Judge himself left it open for the parties to work out their rights and liabilities before the appropriate forum and was clearly disinclined to express any opinion on the question when His Lordship said that there is no need to ask the parties to approach a particular forum. Therefore, interpreting the order in Criminal R.C. No.1020 of 2000 as inferring ouster of jurisdiction of Civil Court or interpreting the decision in Sharfuddin v. Sama Yelluga and others (4 supra) as supporting any such conclusion, will not fit in with the admitted facts and circumstances and while undoubtedly, the Courts below have jurisdiction to decide the question of jurisdiction as a preliminary issue, their conclusion in this regard is unsustainable in law on the admitted pleadings and questions in issue in the suit. Therefore, while the suit for declaration of title cannot be considered to be outside the jurisdiction of the Civil Court, while considering the entitlement of the plaintiff to the relief of delivery of vacant possession duly evicting the defendant in the event of the plaintiff’s success in getting declaration of her ownership on merits, the Civil Court has to necessarily go into the legal status of the defendant vis-à-vis the suit land as probablised by the oral and documentary evidence of the parties to be placed before it during trial and in the event of any conclusion about such status of the defendant being one within the ambit of the special Statute, the Civil Court may have to consider on merits its competence to grant the relief of possession. No expression of opinion need or should be made in this judgment on that question, which will be left open to be determined in accordance with law by the trial Court. As a result of the above discussion, the impugned judgment has to be reversed and the suit has to be restored to file and remitted back to the trial Court for being proceeded with further in accordance with law. Accordingly, the judgment and decree in A.S. No.72 of 2005 on the file of the IV Additional District Judge (Fast Track Court) at Khammam, dated 28-09-2010 are set aside and consequently, the order in I.A. No.108 of 2005 in O.S. No.40 of 2003 on the file of the Senior Civil Judge’s Court, Sathupally, dated 21-04-2005 and the consequential docket order in O.S. No.40 of 2003 on the same date are also set aside and the said I.A. No.108 of 2005 is dismissed without costs and O.S. No.40 of 2003 is restored to file. The trial Court shall proceed further with O.S. No.40 of 2003 on merits in accordance with law uninfluenced by any observations herein. The plaintiff and defendant shall appear before the Court of Senior Civil Judge, Sathupally in person or through a counsel on 19-09-2011 in order to enable the said Court to proceed further in the suit. The second appeal is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 20-08-2011 Note: L.R. copies to be marked (Bo) Svv [1] 1996 A I H C 3017 [2] 1983(1) APLJ 148 (HC) [3] 1961(1) An.W.R. 120 [4] 1957 (2) An.W.R. 478 [5] 1997 (4) ALT 376 [6] 2002 A I H C 3373 [7] (1985) 2 Supreme Court Cases 54 [8] (1994) 1 Supreme Court Cases 611