GUNUPATI BALARAMIREDDI Vs. PATUR VISWANADHAM

JUDGEMENT

(1.) This is a Letters Patent Appeal against the Judgment of Viswanatha Sastri, J., whereby C.M.P. No. 679 of 1955 and S.A. No. 933 of 1952 have been decided against the defendant-appellants. C.M.P. No. 679 of 1955 was an application under section 4 (i) and (ii) of the Andhra Inam Tenants Protection Act, 1954, for the stay of hearing of S.A. No. 933 of 1952. S.A. No. 933 of 1952 arose out of a suit for partition and delivery of possession of 13/48th share brought by some of the co-sharers in the Paturivari Khandriga against 15 defendants of which defendants 1 to 3 and 5 to 7 are the appellants before us.

(2.) The brief facts of the case are : that the suit lands, about acres 25-00 in area, forming part of Paturivari Khandriga were admittedly owned in common by several co-sharers. The plaintiffs and defendants 8 to 15 are the present sharers, It is beyond controversy that defendants 1 to 7 of whose family the first defendant is the Manager have been in possession of the suit lands for some decades. In 1931 one of the sharers of the Khandriga brought a suit O.S. No. 22 of 1931 on the file of the Sub-Court, Nellore, for partition and separate possession of his share. The other co-sharers including the present plaintiffs were party-defendants to the said suit. The plaintiffs as defendants 2 and 12 therein set up their claim for 13/48th share in the Khandriga and a compromise was arrived at between the major Khandrigadars as regards their shares. The defendant No.1, as 6th defendant in that suit, claimed that he and his predecessors were in possession from time immemorial and had a permanent right of occupancy in the said lands and hence he could not be evicted. Thus, notwithstanding the compromise, there was still controversy in the suit in relation to the question whether the present first defendant had permanent occupancy rights. There was a further dispute as to the exact rate of annual rent payable to the Khandrigadar. The trial Court found that the first defendant and his predecessors were in possession by virtue of a definite lease from the Khandrigadar and that he had no right of permanent occupancy, and thus decreed the claim of the plaintiff to the extent of his share. The present first defendant went in appeal, but the High Court in A.S. No. 225 of 1942 by its judgment, dated 23rd November, 1943, negatived his claim of permanent occupancy fights in the Khandriga land and confirmed the judgment of the trial Court. The present plaintiffs thereafter brought the suit O.S. No.157 of 1946 claiming partition and delivery of possession of their 13/48th share in the Khandriga. Defendants 1 to 7 set up the same claim of permanent rights of occupancy in the lands on the ground that Khandriga was an estate within the meaning of the Madras Estates Land Act. They further contended that though they got into possession originally as tenants their possession, after the expiry of the lease term, had become adverse and a period of more than 12 years having elapsed the plaintiffs cannot in law resume the lands. The trial Court decreed the suit. This decree was confirmed by the Court of first appeal on the ground that the claim of defendants was barred by res judicata. The defendants then filed S.A. No. 933 of 1952.

(3.) During the pendency of this appeal, the Andhra Inam Tenants Protection Act (President's Act No. XIV of 1954) came into force in December, 1954. Section 4 (1) of the said Act provided for stay of suits, proceedings in execution of decrees or orders or other proceedings for the eviction of tenants from the inam lands. The appellants made an application C.M.P. No. 679 of 1955 for stay of this second appeal claiming that their case falls within the ambit of section 1(2) of the said Act. This application was resisted on two grounds viz., (i) that the Act had no application because the Khandriga was in ryotwari village as distinct rom an inam village, and (ii) that there was no subsisting tenancy as it was terminated by notice to quit before suit. The learned Judge having considered the historic background of this legislation, the purport and language of section 1(2) of the Act, came to the conclusion that the word 'hamlet' or 'Khandriga' used in that section must be read with the words "of an inam village" and not dissociated therefrom. He held that the Khandriga in question not being in inam village but in a ryotwari village, the Act did not apply to the case. Thus he rejected the stay petition. He then took up the Second Appeal and decided the same against the defendant appellants on the ground that the plea of the defendants was barred by res judicata. He further held that when the appellants' possession is traced to a lawful source, it cannot become unlawful by their mere withholding the payment of rent and the question of adverse possession to defeat the right of the plaintiffs therefore would not arise.