HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.340 OF 1991 JUDGMENT: The appeal is filed by the appellants/defendants against the Judgment in O.S.No.9 of 1984 on the file of the Principal Subordinate Judge, Tenali. The suit was filed for recovery of Rs.21,463.44 ps., being the arrears of the Maktha due to the plaintiff. 2. According to the case of the plaintiff, the defendants are the tenants of an extent of Acs.18.46 cents of wet land belongs to the plaintiff from 13.06.1967 agreeing to pay 78 bags of paddy weighing 76 kgs each. The defendants were put in possession of the property and the defendants failed to pay Maktha for the years 1980-81, 1981- 82, 1982-83 and 1983-84 in spite of repeated demands and subsequently ATC Nos.207 of 1980 and 647 of 1981 on the files of Special Officer, Repalle, were filed for eviction and possession was obtained. The suit was filed for recovery of the maktha basing on the mortgage value of the paddy as on that date. 3. The 2nd defendant filed a written statement, which was adopted by the 1st defendant. The defendants denied the fact of the lease of the property or the maktha. The contention of the defendants is that the 1st defendant was found to be in excess land holder and he was directed to surrender an extent of Acs.10.25 cents by the Land Reforms Tribunal and accordingly in the Summer of 1980, the surrender of Acs.10.25 cents was made and defendants are in possession of Acs.8.21 cents only and therefore, the plaintiff is not entitled for the maktha for the surrendered land. Further-more, it is the contention that the price claimed by the plaintiffs is not proper and the plaintiff is not entitled for the money as excess was paid by the defendants. 4. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the 1st defendant surrendered Acs.10.25 cents of the leased land? 2) Whether the defendants are liable to pay the maktha for Acs.8.21 cents only for the suit years? 3) Whether the prices of paddy claimed by the plaintiff are correct? 4) Whether the plaintiff is entitled for the suit amount? 5) Whether the payments pleaded by the defendants are true? 6) To what relief? 5. On behalf of the Plaintiff, PWs.1 and 2 were examined and marked Exs.A.1 to A.21. On behalf of the defendants, DWs.1 to 3 were examined and marked Exs.B.1 and B.2. After considering the material on record, the learned Principal Subordinate Judge, Tenali, has decreed the suit of the plaintiff as prayed for and aggrieved by the said Judgment, the present appeal is filed. 6. The points that arise for consideration are: 1) Whether the defendants have surrendered an extent of Acs.10.25 cents of leased land in 1980 summer and if so, the defendants are not liable to pay maktha for their property? 2) Whether the amount claimed by the plaintiff is correct and recoverable? 7. POINTS: There is no dispute about the fact of tenancy and also the fact that an order of surrender was passed by the Land Reforms Department and under Ex.A.7 the defendants have given a notice in 1979 informing about their intention to surrender the property. According to the case of the defendants, in pursuance of that notice, the property was surrendered in Summer, 1980 and subsequently, the Executive Officers PWs.1 and 2 have conducted two auctions for those lands and no bidders have come forward and consequently the claim of the plaintiff that the defendants are in possession and enjoyment of the property is not correct. 8. The lower Court has considered all the contentions of the appellants. It is to be noted if really the appellants have surrendered the property in Summer, 1980, there was no need for the plaintiff to file ATC No.647 of 1981 for eviction of the appellants with regard to the land to an extent of Acs.10.25 cents. The defendants are not able to explain as to under what circumstances this eviction application was filed. In fact, after contest only the order of the eviction was said to have been passed and it is also admitted by DW.1 that in pursuance of the orders possession was taken. Therefore, the present contest of the appellants that surrender has been made in Summer of 1980 cannot be agitated in view of the order under Ex.A.16, which has become final and binding on the appellants since in that application the plea of surrender in Summer of 1980 was not accepted. Therefore, in view of the above circumstances, much of the arguments raised by the counsel for the appellants about the factum of surrender have no strength. So far as the contention with regard to auction said to have been conducted by PWs.1 and 2 also except the interested testimony of DWs.1 and 2, there is no other material to show that an auction has been conducted. PWs.1 and 2 did not admit the same and none of the persons, who participated in the auction were examined. Therefore, the lower Court has viewed the matter correctly and the plea of surrender is rightly rejected and there are no merits in the appeal. Accordingly, the appeal is dismissed. There shall be no order as to costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date: 26.09.2011 INL