NAMUDURI ATCHYUTARAMAIAH Vs. OSURI GANGADHARAM

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 29-6-1987 passed in AS No.21 of 1981 on the file of Sub-Court, Ramachandrapuram, confirming the judgment and decree dated 9-3-1981 passed in OS No.84 of 1977 on the file of District Munsif Court, Ramachandrapuram in East Godavari District.

(2.) The appellant herein is the defendant and the respondent herein is the plaintiff in the said suit OS No.84 of 1977. The parties herein are being referred to as they are arrayed in the suit. The respondent-plaintiff filed the said suit for granting permanent injunction restraining the defendant and his men from interfering with his peaceful possession and enjoyment of the suit property consisting of coconut garden of Ac. 16.93-1/2 in RS No. 103 and a vacant Iand of 38 cts. in RSNo.107/1 of Serilanka, Hamlet of Maskapalli in Ramachandrapuram Taluq, E.G. District. The plaintiff filed the said suit on 21-2-1977. The defendant resisted the suit. The trial Court holding that the plaintiff was in possession and enjoyment of the suit property on the date of filing of the suit, decreed the suit. On appeal by the defendant, the lower appellate Court confirmed the finding of the trial Court that the plaintiff was in possession and enjoyment of the suit property by the date of filing of the suit and consequently dismissed the appeal. Aggrieved by that judgment and decree, the defendant has come up with this second appeal.

(3.) For proper appreciation, it is necessary to narrate the relevant and admitted facts as revealed from the evidence on record and they are as under:The respondent-plaintiff is the o\\ner of the suit property. He leased out the said lands to the defendant under an agreement dated 21-12-1967forapcriodoffiveyears. Towards the rent, the defendant had to deliver 35,000 coconuts per year in three equal instalments in the months of April, August and December and in default thereof, he had to pay the value of the coconuts at the prevailing market rates on the due dates with interest; There are other conditions also, but they are not relevant for the purpose of this appeal. The plaintiff filed a petition ATP No. 21 of 1973 before the Tenancy Tahsildar, Ramachandrapuram for eviction of the defendant alleging that the defendant-tenant committed default in payment of rents and, therefore, he was liable to be evicted. It appears that during the pendency of the said eviction petition, a Receiver was appointed and that Receiver took possession of the lands on 8-11-1973. The Eviction Petition ATP No.21 of 1973 was enquired into and eviction of the defendant-tenant was ordered for the reason that the minimum period of six years of tenancy provided under Section 10(i) of the Andhra Tenancy Act was over and, therefore, the tenant was liable to hand over possession of the lands to the landlord and accordingly the petition for eviction was ordered. Against the said order of eviction, this tenant-defendant preferred an appeal TA No.2 of 1974 before the Sub-Collector, Rajahmundry. Meanwhile, the plaintiff-landlord filed an execution petition EP No.l of 1974 in ATP No.21 of 1973 before the Talisildar, Ramachandrapuram and obtained delivery of possession of the suit lands on 18-1-1974. Subsequently, the appeal TA No.2 of 1974 filed by the tenant before the Sub-Collector, Rajahmundry was allowed on 7-6-1976 holding that eventhough the period of six years provided under Section 10(i) of the Andhra Tenancy Act was over, there was no bar in continuing the tenant for more than six years, that the Talisildar did not examine whether the tenant defaulted in payment of rent or committed any act for which he was liable to be evicted, and accordingly, set aside the order of eviction passed by the Tahsildar and remanded the petition to him for disposal afresh. The Sub-Collector further ordered, while remanding the matter, that the possession of the land should be restored to the tenant. Pursuant to the said order passed by the Sub-Collector, the tenant filed a petition IA No.3 of 1976 in ATP No.21 of 1973 before the Tahsildar for re-delivery of possession and the Tahsildar by his order dated 4-10-1976 directed the Re\pcnue Inspector, Venkatayapalem to take possession of the lands and hand over the same to the tenant-defendant. The plaintiff-landlord filed the Writ Petition No.3288 of 1976 challenging the said order in IA No.3 of 1976 in ATP No.21 of!973ofthe Tahsildar directing re-delivery of the possession of the land to the tenant. He also filed WPNo.3881 of 1976 cliallenging the order passed by the Sub-Collector allowing the appeal TA No.2 of 1974 and remanding the petition for fresh disposal and ordering that the possession of the land shall be restored to the tenant. The plaintiff-landlord filed WPMP No.5254 of 1976 in WP No.3288 of 1976 and obtained interim stay of the order passed in IA No.3 of 1976 in ATP No 21 of 1973. But, subsequently, the said impugned stay was vacated by this Court on 30-11-1976. Then the plaintiff-landlord preferred writ appeal in WA No.640 of 1976 and this Court called for a report from the Tahsildar, Ramachandrapuram as to whether the plaintiff-landlord or the defendant-tenant was in actual possession of the coconut plantation in dispute. In accordance with the directions of mis Court, the Tahsildar submitted his report stating that the tenant was given possession on 5-10-1976 in pursuance of the orders of the Sub-Collector in the presence of mediators and also the Village Officers, but the defendant could not retain his possession as he was thrown out from the land by force and the landlord had taken possession of the same. Based on tliat report of the Tahsildar this Court, while observing that the landlord got possession by whatever means and he was in actual possession as on 1-12-1976, allowed the writ appeal and set aside the earlier order of the single Judge relating to tl*c interim arrangement. The Division Bench while disposing of that appeal, viz., WA No. 640 of 1976, also directed the writ petition to be posted for final hearing as "there was a regular scramble for possession and it was not desirable td allow that state of affairs to continue any further". Thus the plaintiff-landlord was allowed to continue in possession of the suit land by virtue of the interim order of this Court in WA No.640 of 1976. The two writ petitions came up for final hearing before His Lordship Ramachandra Rao, J., and they were disposed of by a common order dated 25-1-1977. The learned Judge, while dismissing both the writ petitions, observed thus: "It is common ground that the petitioner through deliver)' of possession of the land in execution of the order of eviction passed by the Tahsildar in ATP No.21 of 1973 and that on setting aside the order and remanding the petition for eviction to the Tahsildar for fresh disposal, the 4th respondent (Tenant) was entitled to be restored to possession. Further, the Receiver ceased to be in possession after the disposal of the eviction petition by the Tahsildar and after the petitioner took possession of the same in execution of the order of eviction. There is therefore no illegality or irregularity committed by the appellate authority in directing restoration of possession to the 4th respondent. The 4th respondent filed the petition IA No.3 of 1973 before the Tahsildar for re-delivery of possession pursuant to the order of the appellate authority and this petition was ordered and the 4th respondent took possession of the lands. Even in the absence of a direction by the appellate authority, the original authority, the Tahsildar was bound to restore possession of the land to the 4th respondent as the order of eviction being set aside by the appellate authority.'' (Emphasis supplied)Subsequent to the dismissal of these two writ petitions, the plaintiff-landlord filed the present suit OS No.84 of 1977 in the Court of Prl, Dist. Munsif, Ramachandrapuram for permanent injunction against the defendant-tenant for the relief of permanent injunction as stated supra.